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Donald Trump and The Federalist #51

Throughout his campaign, Donald Trump has, again and again, doubled down on his strategy and maintaining a highly covered and, in the eyes of many, a highly controversial brand of rhetoric. Many political watchers have pronounced his candidacy over at various times throughout his campaign as a result of these statements–after he characterized Mexican immigrants as rapists and drug peddlers, after he mocked 2008 standard-bearer John McCain, after he proposed barring Muslims from entering the country, and after his various comments on Megyn Kelly, just to name a few. All of these have confounded the pundit class as they have only seemed to gain him more support and strengthen the resolve of his base.

But his comments last week on Judge Gonzalo P. Curiel’s inability to remain unbiased because of his heritage seem to have crossed a major line, prompting many Republican leaders to publicly criticize Trump or withdraw their support entirely. What is different about this issue?

While Trump has always been outspoken, his previous comments were typically attacks on individuals or minority groups. Trump’s attack on Judge Curiel, though, is an attack on the judicial system writ large. Trump’s statement that Judge Curiel cannot reach a fair verdict in the Trump University case because he is of Mexican descent implies that any judge’s ethnicity or background may impact his or her verdicts in other cases. And while many establishment Republican leaders have been willing to put up with their nominee out of loyalty to the GOP, abandoning their loyalty to the judicial system is simply a bridge too far.

Many of his supporters, especially those among the elected officials down the ballot, are finding great trouble as the comments on Judge Curiel could presage an impending constitutional crisis if Trump is ultimately elected. In The Federalist #51, James Madison wrote that “the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government.”

In other words, someone seeking the executive branch should stray away from this kind of criticism as it undermines the concept of judicial independence itself.

Over the course of his campaign, Donald Trump has built a strong and loyal political base. Mario Cuomo once remarked that you campaign in poetry and govern in prose, and campaigns have always been more about emotion and emotional reaction than about the policy implications of actually governing. Let’s hope that these attacks on the judiciary are only a symbol of the need to emotionally resonate with voters, and not an actual policy proscription.

LEVICK Fellow Kelsey Chapekis contributed to this article.

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