Donald Trump has for several weeks now been calling into question the results of an election he has yet to lose. He has suggested that he will put his opponent in prison if he is elected. Earlier in this campaign he said he would instruct the US military to go after the families of suspected terrorists and he encouraged his own supporters to attack protesters with promises of paying their legal fees. He has publicly shamed members of the media whose coverage of his campaign he does not like, as in this most recent case with Katy Tur. He has generally violated the unwritten norms of American public discourse and political office-seeking. His supporters describe his approach as refreshing. I think what Trump has showcased for better or worse is how fragile the democratic project is.
This year in buying our house I learned a little something about how the rule of law operates on a fiction. The fiction is that there is something that binds us to the rule of law. Generally, we act as if the law binds us, but on occasion, when people decide it does not bind them, the fictive nature of the rule of law becomes clear. That’s when you have to decide if you want to do anything to actually force the law to work, because it won’t on its own. Making the law have teeth then requires an additional expenditure of time, energy and money. Just ask any of Trump’s vendors that he never paid.
It turns out that the laws and mores whereby our institutions and political structures work also operate on a bit of a fiction. They work because we believe they work, which means they also stop working when we stop believing that they work. To the extent that Congress tries to represent the people it is because the people believe that Congress represents them and should be representing them. To the extent that state governments accept judgments handed down by the Supreme Court and other arbitrating bodies they do so because they believe that those judgments require it of them. Read more