Donald Trump as an Anti-Precedent

One way in which constitutional law makes lemonade out of lemons is through the concept of an anti-canon. In other words, lawyers and judges hold up certain cases or events as precedents for what NOT to do.  Law is unusual in emphasizing these disasters. In an English class, students don’t read bad books to understand how to write good ones.  In law classes, though, we spend a lot of time thinking about cases such as Dred ScottPlessyLochner, and Buck v. Bell  to understand how they went so wrong and what we can learn from them.

I wonder if Donald Trump will become a sort of anti-precedent for politics.  In other words, people may look back on this election and say for years to come things like “You can’t say that–you’ll end up like Trump” or “That guy is just like Trump,” or “that proposal sounds just like Trump.” In part the meaning of Trump’s candidacy will depend on how much he loses by and what he does after the election, but my point is that he might end up reinforcing or strengthening many of the norms that he is now flouting.

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6 Responses

  1. Brett Bellmore says:

    I suppose that depends on why you think he lost, assuming he does. (538 still has him at about a 1 in 7 chance of winning, which is a long way from zero.)

    A fairly uncontroversial answer would be, don’t blow off having your campaign do opposition research on your candidate. I don’t think there’s much question that one will be accepted.

    Don’t rely on ‘earned’ media, when the media is run by the opposing party, would be another lesson out of this election. When you most need it, you’ll stop getting it.

    Sadly, that seems to be a lesson the GOP is particularly resistant to learning. The necessity of doing something about the one-sided media environment seems obvious, but they don’t do anything about it.

    Beyond that, it gets kind of tough; The bottom line is, Trump actually won the primaries, which renders the claim that another of the Republicans would have done better questionable. If you can’t beat Trump, why should anyone believe you could have beat somebody Trump couldn’t beat?

  2. Joe says:

    “which renders the claim that another of the Republicans would have done better questionable”

    Just might be that winning Republican primaries, often by pluralities in a crowded race, might not be the same thing as what it takes to win a general election. You are part of his base, but said base is only a fraction of the electorate. Lesson here is if you want someone with some aspects of Trump, you need more than that + a BIT of self-restraint.

    Had a weak field — the assumed front runner was Jeb! So, a third Bush was not appealing, especially in an anti-establishment year. Weak or bland candidates or someone Yankee with ethics issues didn’t work. Or, someone everyone thinks is a big jerk & who cozied up to Trump for months (figure Cruz, if he wanted to and played his cards differently, had the means to give Trump a run for his money).

    But, figure one or two others had a better than 1 of 7 shot & not have to worry about losing Utah and only be “leaning” in various should be comfortable red states.

    • Brett Bellmore says:

      “Just might be that winning Republican primaries, often by pluralities in a crowded race, might not be the same thing as what it takes to win a general election. ”

      Quite plausible. But I’m pretty sure that *losing* Republican primaries, under the same circumstances, is absolutely not the same thing as what it takes to win a general election. The other candidates were *weaker* than Trump, not stronger.

      And they’d all have faced what has undone Trump: A media united against them. This year goes down in history as the year the Democratic media stopped pretending to be anything else. Multiple, prominent journalists have been caught actively collaborating with the Clinton campaign. Giving her editorial control over stories, feeding her debate questions in advance, killing stories she didn’t want covered. They’re not being drummed out of the profession, because the profession is, as Glenn Reynolds is fond of saying, Democratic party operatives with bylines.

      If there’s a way to beat that, the Republican party hasn’t invented it yet.

      • Joe says:

        ” A media united against them. ”

        As noted to you on another blog, Trump rose with a lot of media help. At some point, however, his problems, repeatedly self-inflicted, were too high for the media not to report on them. Clinton for decades has had negative media & this continued to this campaign, repeatedly subject to “both sides” coverage even though one side was clearly so much worse in various ways. Your complaints here are not really based on much & is based on long term practices at any rate that REPUBLICAN MEDIA (which again exists) used too. So sorry Trump is so bad that people on FOX find it hard to stick with the program, but so it goes.

        • Brett Bellmore says:

          As noted in the Wikileaks, the Clinton campaign early on identified who they wanted promoted during the Republican primaries, and media obliged. In the normal media dynamic, the candidate Democrats would prefer to face gets the best coverage during the primaries, and then the media turns on them once they’ve secured the nomination.

          What is distinctive this year is not the polarity of this dynamic, but the magnitude.

          • dht says:

            The Republican party has historically been the party of next in line as far as Presidential candidates go. It is often a mysterious process, but IMO, the next in line this year should have been Paul Ryan, who was the VP candidate 4 years ago. When he declined to run, the establishment could not unite around another candidate. As noted above, Jeb Bush was the closest thing to next in line, and his last name is toxic. Out of this came Trump, who was able to win the primaries because the establishment could not agree on a candidate. On the Democratic side, the establishment was more successful than usual, leading to Clinton’s nomination, even though she is historically unpopular. Had the Republican establishment gotten its act together, Clinton would be looking at a deficit in the polls right now, rather than a lead. Establishment Democrats rarely do well in general elections (think Adlai Stevenson, Hubert Humphrey, Walter Mondale, John Kerry). In short, the Republicans threw away a prime opportunity to win the presidency because they could not agree on an establishment candidate. That is the lesson of this cycle.