The Constitution of the United States is an extraordinary document. It lays out a set of governing principles. It details the guiding values animating our democracy. And it codifies a series of overarching laws that have charted a course for our country since its founding. But as we’ve also seen throughout our history, part of what makes America work is an accompanying set of social and democratic norms – certain ideas of what’s right and wrong in our country that aren’t found in any law, but are nonetheless at the heart of our democracy. Often, they’re about the way that we interact with one another – the respect that branches of government show each other; the sense that we as a country should work together to solve problems; the notions of how elected officials should conduct themselves in office.
To be sure, these norms have come under attack before. But one of the challenging and distressing things for many people about the Trump presidency is the way that those norms seem to be disregarded and flouted so casually and frequently. A president should not praise authoritarian leaders for being authoritarian. A president should not attempt to influence investigations or instruct the Justice Department to investigate political opponents and protect political allies. A candidate for President should release tax returns. There should be a certain amount of respect for institutions like the free press. It should be easy to condemn racism and bigotry, and it should be tough to lie repeatedly about verifiable facts. Presidents shouldn’t directly call their U.S. Attorneys – especially ones who oversees the area in which they live and own property. I feel particularly strongly about the maintenance of prosecutorial independence, but I am not the only who should. Like many others, this principle, which is nowhere to be found in the Constitution, has nevertheless been generally preserved for the protection of our democracy.
These observations are not meant to be political or partisan. In fact, I find that these concerns are expressed across the political spectrum, by Democrats and Republicans alike – from conservative commentators like David Frum to the editorial page of The Wall Street Journal to my guest this week, Senator Jeff Flake. Just recently, Senator Flake took to the floor of the U.S. Senate to speak about Donald Trump’s “disregard for truth and decency.” That’s another norm that we don’t have in our Constitution; there is no law requiring our president to be a good person, but to see someone in the top executive position flagrantly bully, malign, and demean his own administration and constituents is a reminder that the office of the presidency is symbol and reflection of our country as whole.
Now, sometimes when norms are broken, we all decide they need to be reinforced with laws. President George Washington set an expectation that presidents would serve no more than two terms, but after President Franklin Roosevelt’s record-setting stretch, Congress and the states decided to make it official – and thus, the 22nd Amendment was born. The same was true after President John Kennedy appointed his brother, Robert Kennedy, as Attorney General: restrictions were put in place to prevent other presidents from placing family members in positions of power and influence (although these laws are certainly being tested today).
One of the big questions we’ll have to answer in the coming years is, what will the fallout be from the Trump administration? What soft norms will be codified into hard law? Will future presidential candidates be required to release their tax returns? Will we see a more stringent application of nepotism laws? Perhaps a forced divestment of assets to avoid the appearance of corruption or wrongdoing? Will we no longer excerpt the President from conflict of interest laws?
These are questions I’ve been thinking about a lot lately, and I recently had the opportunity to explore this issue with New York University’s Brennan Center for Justice on a bipartisan panel. And although there may be some disagreement about what should be causes for concern and what comes next, I think we are unanimous in our understanding that this a critical period for our democracy. It is a time to stand up and speak out. And it’s a moment when we have to engage in a deeper understanding of what our country represents and a broader conversation about who we want to be in the future.
This week, I spoke with Senator Jeff Flake, fresh off of his star turn on the Senate floor. We got into issues from immigration to gun violence. We discussed his decision not to run for re-election. And we talked about where he thinks the Republican Party – and American politics – is headed in the days to come.
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