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 Scott, Plessy, Lochner, 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.