Individual states might resist him, but in Washington he will have great powerby Adam Tomkins / November 11, 2016 / Leave a comment
Published in December 2016 issue of Prospect Magazine
At times such as these we reach for The West Wing, don’t we? One of my favourite lines is from an episode in series two when Josh Lyman, the Deputy White House Chief of Staff, says that there are only two things that stop governments: money and politics.
As a constitutional lawyer I’ve always been struck by this truth. Law does not appear on Josh’s list. Governments will do whatever they can politically get away with, if they can afford it. Smart constitutions focus on finding ways of allowing governments politically to get away with less. Really smart ones also seek ways of controlling the government’s resources.
What are the prospects of the venerable but in some respects crumbling US Constitution finding ways over the coming four years of constraining the Trump presidency? The American system is, after all, renowned the world over for its famous checks and balances. These come in two forms: the substantive rights of states and individuals, which the constitution protects from federal interference, and the structural constraints that are built into the internal architecture of the federal state.