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.
[time-brightcove not-tgx=”true”]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.
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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.
Judge-made constitutional law can stand against the executive branch—but only if the judges want it to. What judges give, they can take away. That has been the lesson of the Trump Supreme Court, which began during Trumps first term and has extended through the Biden administration. Earlier judicial decisions are being undone at a remarkable rate: recent years have seen the Court take away the right to abortion and ban affirmative action.
Here, too, we can expect the promise of Trump’s agenda to continue. Freedom of the press, for instance, is ripe for originalist reconsideration. It would not be surprising if the Supreme Court whittled free speech down to allow the government to silence some critics: Justice Clarence Thomas has suggested this already. The Court is subject to some checks, if it clashes intensely with the other branches of government: proposals for term limits or court expansion can get its attention and encourage it to think about its proper role. (FDR’s court-packing plan, for instance, was never enacted, but many historians give it credit for inspiring the Court to accept the New Deal.) But that sort of pushback will be absent with a Republican president and Senate. Trump may well have the chance to appoint more Justices, either to restock the Republican bench with younger judges (Thomas is 76, Alito 74) or to further shrink the Democratic side (Sotomayor is 70, Kagan 64). Barring legislative intervention, the Supreme Court will be reliably conservative for the rest of this century.
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This, then, leaves the clear text of the Constitution for us to consider. This will probably hold, although when it wants to, the Supreme Court has shown a willingness to disregard relatively clear constitutional rules—like the one barring oath-breaking insurrectionists from the presidency. More specifically, the 22nd Amendment, which limits presidents to two terms, is likely to hold. And no attempt to amend the Constitution to eliminate it is likely to succeed.
So the second Trump term will be the last. That may not be much comfort for progressives, but there is one important point to be made: Our history has seen many conflicts. Crisis often produces change, and change does not always go the way you might expect at first.
Let’s think back to the Civil War. You might think, for instance, that the decision of 11 states to reject the authority of the national government and forming the Confederate States of America would end up weakening that government. But the change that secession brought went in the opposite direction. First through Lincoln’s aggressive use of his commander-in-chief powers, and then through amendments that knitted the states into a tighter union, the national government emerged from that crisis much stronger. It was only after the Civil War that we really became a nation.
The nation that Reconstruction made was quite different from the one the Founders envisioned. We tend to downplay the radicalism of Reconstruction, because we like to tell a story of continuity, in which the Constitution written in 1787 has guided us for over 200 years. But after the Civil War, we rejected many aspects of that Constitution. As Thurgood Marshall said, though the Union survived the Civil War, the Founders’ Constitution did not. And it was from that traumatic rupture, those dashed preconceptions of what America was, that a new and better America was born.
It will take time to identify the meaning of this election. It may be nothing much, or at least nothing special to in the grand scheme of things—countries around the world have rejected incumbents; it is not surprising for the U.S. to follow that trend. Or it may be something more. But if the lesson is indeed that different segments of the population have irreconcilable visions of what America is and should be, that realization of Trump’s ascendence back into the White House is only the first step.
