It has been clear for a very long time that Donald Trump and his supporters are of the view that the Constitution and the Bill of Rights are not so much agreements between Americans about mutual rights and constraints, but a pull-down menu of rights that can be afforded to some and denied to others. Trump has long made this clear in his actions: He has the right to unfettered free speech but protesters do not. His Justice Department has made plain that some faiths have the right to unfettered religious exercise and others do not. He has argued, time and again, that the law means what he says it means—courts, the Constitution, and plain text notwithstanding. Last week’s flirtation with canceling birthright citizenship on the back of a napkin was only the latest variation on that theme.
But there’s a far more dangerous picture that has begun to emerge in recent weeks. President Trump has more or less stopped repeating that constitutional rights flow in a single direction (toward him) and has pivoted to a new claim—that his opponents have demanded excessive constitutional freedoms, and that the cure for this problem may need to involve violence. That is new. It is horrifying, and it needs to be seen as what it is.
Jonathan Chait clocked this shift on Monday in his column on connecting the dots between Trump’s “fake news” complaints and his tacit acceptance of violence as the result. As Chait observes, over the past weekend, the president has refused to back down when faced with claims that he is inciting his followers to commit actual physical violence: He told Jim VandeHei of Axios that inciting violence against reporters he deems “enemies of the people” is his “only form of fighting back.” On Friday, Trump told yet another journalist that journalism itself “is creating violence.” He holds out his threats as a warning that constitutionally protected press freedoms will be met with unlawful violence and that this is the only power he can weaponize. As Chait notes, this is the president saying outright that for him, “fighting back” includes actual physical fighting.
This is the very same threat he has made about the perfectly legal migrant caravan—that if any of them throw rocks, they will be met with unlawful lethal force. It is the threat he has used against criminal suspects when he urges the police to illegally cause them bodily harm (“roughing up”) upon arrest. It is the threat he made Monday against lawful voters who, he claims, are practicing what he calls “VOTER FRAUD” and “EARLY VOTING” en masse, and will be met by “maximum criminal penalties” for doing so. It was the argument Donald Trump and his Justice Department made when even lawful asylum-seekers and migrant workers sought entry to the country: If you come here, we will have no choice but to rip your children away from you. The ensuing mind-boggling trauma and chaos of an illegal family separation policy was intended as a “deterrent,” in the selfsame way the trauma and chaos of attacks against reporters are meant as a deterrent against the publication of what Donald Trump has deemed “fake news.”
All these threats, by the way, represent precisely the same strain of just-below-the-surface violent lawlessness that Trump exhibited when he threatened to “lock up” Hillary Clinton during the 2016 campaign, or when he suggested the “Second Amendment people” amongst his supporters could respond to the appointment of anti–Second Amendment judges by a President Hillary Clinton. To be sure, it isn’t direct incitement to political violence. It’s simply a claim that he continues to advance, in one context after another, that the people who support him may respond to exercises of free speech, or protest, or lawful asylum-seekers, or legal voting, or any number of constitutionally guaranteed rights—with violence. It’s the same claim he makes when he says that he, as president, cannot do anything about it if his angry supporters turn to lawlessness, or that the military, or ICE, or the police cannot do anything less than deploy violence any time their own authority is challenged. He is unmistakably arguing that opposition to him, even opposition protected by our laws and constitutional structure, carries a risk. And he is unmistakably implying—as he did to VandeHei—that he has the power to stir up and mobilize those people, and he is quite comfortable doing so. This is him “fighting back.”
Throughout the past two years, I’ve been struck by the Trump administration’s take on the Bill of Rights—that it means one thing for friends of the president, and something else altogether for his enemies. But what is emerging is not just a breakdown in the ideas of freedom and rights in America: It’s a further pernicious claim that exercising your rights could be met with violence from those in power. Indeed, Trump is testing a theory that rights aren’t constrained by the Constitution, but by his decision to deploy, or not to deploy, agents of the state or independent supporters threatening violence against you.
There is nothing in this theory that should surprise us. Donald Trump has fetishized strength and power and violence and assault since he first stepped onto the national political stage. But the nature of the threat has changed: This is the president asserting not only that certain people aren’t entitled to certain rights, but that the way to fight back against them is through violence or tacit threats of violence. That’s what we should be afraid of going into the midterms. It’s not simply that Donald Trump doesn’t believe his opponents have the same affirmative rights he himself does—it’s that he can increasingly justify the use of force in retaliation against those who disagree with him. If you don’t mind the idea of a president using force to “fight back” against constitutional rights, you should at least know that you’re not talking about a constitutional democracy anymore.
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