Sigh back at ya
America has the world’s
longest-lasting written constitution. It’s been through a lot—one Civil War, two World Wars, a Great Depression, and all the shocks of the early 21st century. It’s been amended 27 times, though not since 1992. The document, you might think, has shown some staying power. But even after all of that, the 2024 U.S. election has
some people asking whether it can go another round with President Donald Trump.
In thinking about the possible impacts on the Constitution of a second Trump term, it’s useful to separate out three different categories of constitutional rules.
First, there are norms: principles that are not written down in the Constitution and that aren’t enforced by judges. Norms emerge from practice, sometimes dating back to the days of George Washington. These are things like the understanding that the Attorney General has some degree of independence from the president, or that the Department of Justice should not be used to harass political opponents.
Second, there is judge-made law: judicial decisions interpreting vague constitutional provisions. Judges have identified fundamental rights, like the right to contraception, or the right of same-sex couples to marry, that are not spelled out in the Constitution, and they have defined the contours of rights that are stated in general terms, like the freedom of speech.
Last, there are clear constitutional provisions, like the requirement that a president must be at least 35 years old, or that each state gets two senators.
Which of these things will hold against a second Trump administration? Norms will not—that was in many ways the lesson of the first Trump term.
When Trump was constrained by norms, it was usually not because he agreed to observe them, but because he faced pushback from other members of his administration or the federal bureaucracy. But perhaps the main difference between the first and the second Trump terms is that
he has plans to eliminate that form of resistance. We can expect that Trump will do things that no other president would have even tried, like directing prosecutions of critics or rivals, which he has threatened to do.
