This is an excellent article on presidential power to levy tariffs and to grant pardons. But the article opens out onto an issue that dramatizes why Donald Trump is not a President within the liberal-democratic, rights-centric, Enlightenment-based nature of the American, in fact, the entire Western, political culture. In fact, not only is Trump not a part of that system, he is as alien to that political tradition as, say, a rhesus monkey is alien to a cantaloupe: they are simply radically different kinds of things.
The structure of the Constitution incorporates certain aspects that the Framers selectively imported from the European, especially British, Enlightenment and deliberately built in, and that they intended in 1787 to be the strengths of the Constitution. These strengths partook, almost always tacitly, of certain fundamental assumptions about the nature of people, politics, and power – assumptions that Trump and his sibling autocrats and absolutists in Europe view as weaknesses to be exploited for the advantage of the few rather than strengths to be leveraged for the good of all. (E.g., Trump's tax-"reform" law should not surprise anyone with even a casual acquaintance with the history of pre-Enlightenment European autocracy. Even post-Enlightenment European autocrats were sometimes enlightened autocrats, e.g., Frederick the Great of Prussia.) These weaknesses in the Constitution are almost always invisible to us, because we share the assumptions on which they were based. We are usually no more aware of them than a fish is aware of being wet. Trump & Co., either explicitly or implicitly, reject these assumptions, so that these weaknesses are obvious to them. Herewith a few examples:
o Contrast the contempt in which science is held in the authoritarian conservatism of Trump & Co. with the respect for science, and for respect for empirical evidence generally, that informed the Founders. To take just one example, in a letter to John Adams in 1813, Thomas Jefferson wrote:
Even in Europe a change has sensibly taken place in the mind of man. Science has liberated the ideas of those who read and reflect, and the American example has kindled feelings of right in the people. An insurrection has consequently begun of science talents and courage against rank and birth, which have fallen into contempt. It has failed in its first effort, because the mobs of the cities, the instrument used for its accomplishment, debased by ignorance, poverty and vice, could not be restrained to rational action. But the world will soon recover from the panic of this first catastrophe.
By contrast, Betsy DeVos's advocacy for the teaching of intelligent design and creationism in public schools is a matter of public record, even though she is very careful to conceal her creation-"science" advocacy behind dog-whistle words like "critical thinking" and "teach the controversy," the latter a term regularly employed to cloak the creationist agenda of, e.g., the Discovery Institute. Reading their comments, one can only wonder what other "controversies" Sec. DeVos would like taught, e.g., the phlogiston theory of combustion? the spontaneous generation of maggots from corpses? the miasma theory of disease transmission? the theory and practice of balancing the bodily "humors" in medicine? the Lamarckian theory of the inheritance of acquired characteristics? And I will not bore you by reprising the estimate of Sec. Ben Carson about the value of the theory of evolution and the Big Bang. This is about as far removed as one can get from the respect accorded science in particular, and empirical evidence in general, by the likes of, e.g., Benjamin Franklin and Thomas Jefferson.
o The emphasis on returning the Nation to "Christian principles" is no less inconsistent with the Constitution as adopted at the Founding. In a letter to his friend Edward Livingston, dated 10 July 1822, James Madison writes
Nothwithstanding the general progress made within the two last centuries in favour of [religious] liberty, & the full establishment of it, in some parts of our Country, there remains in others a strong bias towards the old error, that without some sort of alliance or coalition between Gov' & Religion neither can be duly supported: Such indeed is the tendency to such a coalition, and such its corrupting influence on both the parties, that the danger cannot be too carefully guarded agst.. And in a Gov' of opinion, like ours, the only effectual guard must be found in the soundness and stability of the general opinion on the subject. Every new & successful example therefore of a perfect separation between ecclesiastical and civil matters, is of importance. And I have no doubt that every new example, will succeed, as every past one has done, in shewing that religion & Gov will both exist in greater purity, the less they are mixed together.
Contrast this with the current resurgence of "Christian dominionism" as exemplified by, e.g., Rev. Franklin Graham and the late Francis Schaeffer, both of whom are strong advocates of returning the American Republic to its ostensible original foundation of being a "Christian nation". (Of course, there is more to "Christian dominionism" than returning to "Christian principles," but a belief in such a return is a necessary, if not sufficient, condition for describing someone as a Christian dominionist.) The problem with "Christian dominionism" is twofold: (a) it is radically inconsistent with the "establishment" and "free exercise" clauses of the First Amendment and (b) there is the practical problem of determining which of today's between 30,000 and 40,000 Christian denominations' version of "Christian principles" is to serve as that foundation. (And if your response is that the first principles of a Christian society should be "just the basics," my response will be to inquire as to who has the authority to decide what is "basic" and what is "optional" -- which was precisely why the religious wars of the 16th and 17th centuries were fought in the first place: differing and irreconcilable notions of which doctrines were "basic" and which were "optional".) Point (b) alone would suffice to render the ideology of return-to-Christian-principles as inconsistent with the First Amendment. Even the most cursory, Classics-comics reading of history will show that Europe descended into at least two centuries of internecine war in an attempt to answer that question -- and that was in an age when the number of Christian denominations was numbered in the low double digits.
Trump -- who is no one's idea of a devoutly religious person, Christian or otherwise -- has cynically leveraged this Reformed-Christian nostalgia for an era of religious uniformity in order to gain access to the reservoir of conservative / Reformed Christian ressentiment once encompassed by the term "Moral Majority". To give credit where due, this tactic has worked rather better than Trump himself perhaps anticipated. The Founders were predominantly religious men, though Tom Paine's deistic religious beliefs were so attenuated he often complained of being taken as an atheist, and Mr. Jefferson had some rather heterodox opinions about Jesus Christ. But the Founders, as typical 18th-century Enlightenment gentlemen, were wise enough to recommend religious faith as a support for personal, private, individual conscience, and to refrain from legislating on the matter with laws that were binding on everyone. Christian dominionists and quasi-dominionists aim to reverse the terms of this comparison: religion as a matter of universally binding law, not of individual conscience.
o The Founders and Framers incorporated into the Constitution explicit limitations on the power of the President. Nor is this a more-or-less-obvious matter of the "checks and balances", which are explicitly written into the terse text of the Constitution. For a fuller appreciation of these limitations, one must take into consideration the principles that, instead of being explicitly incorporated into the Constitution, were implicitly and tacitly understood. Not all "checks and balances" are visible on the surface of the text.
One of those "invisible" checks and balances is the principle of nemo iudex in causa sua (or variously, nemo judex idoneus in propria causa est, nemo iudex in parte sua, nemo iudex in re sua, et al.) , all of which may be fairly translated as "No one may be a judge in their own case". (For a much more comprehensive discussion of the nemo iudex principle, you can do no better than to read Prof. Akhil Reed Amar's The Bill of Rights: Creation and Reconstruction or his America's Constitution: A Biography.) The Latin term is usually attributed to Sir Edward Coke in the 17th century, but the nemo iudex principle goes back multiple centuries into the mists of English common law. This principle assumes renewed emphasis today because Trump evidently believes that what was once a royal prerogative -- English kings routinely pardoned themselves, their relatives, and retainers -- now is a specifically presidential prerogative. To be sure, there are highly specific and technical exceptions to the nemo iudex principle, but none of these are relevant to the case of whether or not Trump could pardon himself. Besides, in the case of a President pardoning himself, there is the additional paradox that, in such a case, a presidential self-pardon would amount to a simultaneous confession to criminal acts. (Interestingly, Trump as much as admitted same when he vowed not to pardon himself because, he says, "I have done nothing wrong". That being the case, the converse would also be true: a self-pardon would be a tacit admission of guilt.) Otherwise there would be nothing to pardon.
The list could go on indefinitely. But there is no point in beating a dead jurisprudential horse: for the above and other reasons, either too numerous or too technical to mention, Trump subscribes to a series of principles that are utterly, categorically, undeniably, and without qualification alien to the deepest bedrock of the US Constitution. He has as much business being President of the United States as Hermann Goering has being chief rabbi of Israel or a senior ayatollah in Tehran. Nor is this a matter of disagreement about particular policies. I disagree with, e.g., Mitt Romney, on just about all matters of discrete policy. I voted for Barack Obama over Romney in 2012 and would do so again in a fraction of a heartbeat. But Mitt Romney is a good and honorable man. Mitt Romney is very much a part of the great stream of liberal-democratic, Enlightenment-based tradition of Western political culture. Donald Trump is neither good, nor honorable, nor a part of that culture.
And that, finally, is the bitter, bitter paradox: in 2016, "We the People", in our majestic but tragically flawed wisdom, voted into the office of Chief Executive a man who is indubitably a charter member of the "all enemies foreign and domestic" against whom the US military is solemnly sworn to defend the Constitution. The fascists of the 1930s and 1940s did not have to march their armed hordes down Constitution Ave. In fact, they never had to fire a single shot. We surrendered and let them enter peacefully with our votes.
To paraphrase Charles Dickens' Tiny Tim: "God damn us everyone".
James R. Cowles
Rhesus monkey ... J. M. Garg ... Creative Commons Attribution-Share Alike 4.0 International, 3.0
Cantaloupe ... Photographer unknown ... CC by 2.0
Thomas Jefferson ... White House Historical Association ... Public domain
Country church ... Steve Garrington ... CC by 2.0
James Madison ... White House Historical Association ... Public domain
Scales of justice ... Artist unknown ... Public domain
Betsy DeVos ... US Dept. of Education ... Public domain
Ben Carson ... Dept. of Housing and Urban Development ... Public domain
Donald Trump ... Shealah Craighead ... Public domain