His Time Has Come

We spent election day in Pennsylvania, the state that – so the theory went – could have served as the decisive battleground in this fiercely contested race. Both campaigns were neck and neck, vying to win over a slim, elusive swath of undecided voters across purple counties and suburban enclaves. What began as a day filled with bright skies and cautious optimism radiating from engaged Democratic volunteers – a spirit that carried over from our pre-election weekend in Georgia – ended with a somber sense of defeat: by midnight, it was clear that Donald J. Trump was on course to become the 47th president of the United States of America.

As we ventured through mid-sized, rapidly gentrifying cities like Allentown, the rural stretches of Bucks County, and Black neighborhoods in North Philadelphia, where front yards still held campaign signs, we initially felt that some of the pre-election hopes for a Harris victory might indeed be taking shape. In Allentown, a 76-year-old psychologist from New York – wearing dark sunglasses, her hair in curls, and exuding infectious energy – stood in front of a polling station all day with nothing but a pen and a brochure. She approached each passerby asking: “Will you vote for Kamala?” Many – Black, Hispanic, men, women – proudly answered “yes”. Out of those still undecided, she managed to win over five. “Many people don’t know who they will vote for when they walk into this door, so it is always worth a try”, she said.

In Bucks County, a blonde 72-year-old poll watcher with blue-painted fingernails and a T-shirt that read, “I am a woman, watch me vote”, observed voters with a vigilant eye. She explained with confidence that several middle-aged women had discreetly signaled to her that they would be voting Democrat, even as they walked in with their Republican husbands. “Women will turn this election around,” she declared. “They will win back the rights I have spent my life fighting for.”

Later, in an African-American community just outside Philadelphia, a DJ spun music in front of a polling station, creating an atmosphere filled with energy and optimism. We were greeted with bright smiles and confident voices: “We’ve never seen turnout like this”, a poll watcher said. Parents had dragged their adolescent children to the polling stations – fully aware of the stakes, the entire community had mobilized. People were dancing in front of the DJ booth, and the excitement was palpable. As we left around 7 p.m. the Democratic committee chairman was resolute: “Philadelphia will deliver. I have full faith. Kamala Harris will win.”

But she didn’t. Donald Trump won the 2024 U.S. presidential election – fair and square. Pennsylvania did not end up being the pivotal swing state. Trump carried five of the six predicted swing states and claimed the popular vote. At the time of this writing, he leads Kamala Harris by five million votes nationwide. That margin may narrow once California’s ballots are fully counted, but the outcome appears settled.

America’s choice

The American electorate – complex, diverse, and layered – chose to affirm Trump, not as an anomaly or mistake, but as a deliberate choice. Trump, it seems, has sculpted an electorate to his liking, assembling a broad and surprisingly diverse coalition that demands, and is likely to receive, substantial disruption of the American political structure. Trump’s campaign catered to core Republican principles, promising everything from tax cuts to dismantling the New Deal, but it also veered into new terrain: it promised to reshape foreign policy, pave the way for an Oligarch takeover, mass deport millions, and rollback the rights of minorities and women.

Now, those fiercely engaged volunteers we met along the way in Philadelphia and the many others last weekend in Georgia, are left to grapple with the bitter reality that their efforts were in vain.

We reached out to all of them since, to no avail. No doubt they are exhausted, still in shock and disappointment, wondering if they can summon the strength to do it all over again.

So, how to process that decisive electoral choice? How to reconcile with the prospect of another four years of Trump in the White House, Republican control of the Senate, and perhaps the House? What will this mean for the administrative state, for the communities Trump has targeted – particularly undocumented immigrants – and what does it suggest about the health of American democracy?

After all, the economy?

“Well, his time has come”, says Sam Issacharoff, a constitutional law professor. It is Wednesday evening, and we are sitting in an office on the fourth floor of NYU School of Law. Issacharoff – a seasoned academic and litigator, instrumental in crafting constitutions and arguing before the Supreme Court – appears composed and, to our surprise, not particularly worried. This election, he contends, was primarily a referendum on the incumbent’s handling of the post-COVID economy. Seen in that light, Tuesday’s outcome was hardly surprising. Globally, incumbents have been on a losing streak. In nearly every major election worldwide over the past few years, ruling parties have been swept out of office. It was, in other words, the Republicans’ election to lose.

Indeed, one should not assume that the majority’s support for Donald Trump equates to a desire for him to govern “as a dictator on day one” or to “terminate the Constitution”. Such warnings were central to the Democrats’ messaging, but it clearly did not resonate with most voters. Whether this disconnect reflects an electorate willing to trade democratic principles for economic relief, a public skeptical of Trump’s capacity to implement his authoritarian musings, or simply voters frustrated by unmet economic needs remains uncertain.

While some in Trump’s coalition may indeed be open to authoritarian leanings, it is likely not all. One of the Republican volunteers we spoke to in rural Pennsylvania, a middle-aged woman – with a daughter who openly despises Trump – dismissed election denialism as “nonsense” before we even broached the topic. She said it was a sense of community, not specific policies, that drew her to the Republican Party. Yet even that community seems increasingly divided. The volunteer beside her, covered in Trump memorabilia, began each conversation with accusations that Democrats “kill children”.

Parsing the complexities of this election will be challenging, but one plausible reading, resonant with our experiences in Georgia, early statistical analyses, and particularly the shifts in several minority districts, is that the Democrats’ failure to “meet people where they are”, as Issacharoff put it, backfired badly. Dismissing concerns about inflation as overblown when people are palpably feeling the strain was, ultimately, a losing strategy.

Gutted institutions and constitutional rot

Even if a majority of Americans do not want a more authoritarian Trump, they still voted for him knowing such a version was likely.

Terms like “authoritarian” or, especially, “fascist”, should not be overused, lest they lose their analytical power. Many of Trump’s proposals – such as additional tax breaks for billionaires, advancing fossil fuel interests, banning vaccines, or gutting the Food and Drug Administration – may range from shortsighted to outrageous, but they remain, within a democratic system, legitimate policy choices.

Others, however, are crossing into troubling territory. Consider Trump’s plans to consolidate further control over the federal bureaucracy. Reducing the power of administrative agencies may be a questionable but legitimate goal for a U.S. president. However, subjecting everything – from social services to disaster relief – to the unchecked whims of someone who once suggested disinfectant as a COVID remedy and has a history of targeting opponents opens the door to abuse. It allows institutions designed for legitimate purposes to be repurposed for illegitimate and retaliatory ends.

Once back in the Oval Office, Trump could, as Noah Rosenblum, a legal historian at New York University, notes, swiftly dismantle civil service protections for thousands of mid and upper-level federal executives. He could easily withhold funding, leave key agency positions unfilled, or condition government spending for agencies, higher education, disaster relief, and infrastructure on political loyalty. While these actions seen in isolation may not seem dramatic, together they could amount to a form of “Gleichschaltung”, as Rosenblum puts it.

This is especially concerning given the uncertain health of American democratic institutions. When asked shortly after the election results came in, Mark Graber, leading constitutional law expert and professor at the University of Maryland, tilted his head thoughtfully and mentioned his appreciation for Jack Balkin’s concept of “constitutional rot”. This idea suggests that the U.S. democratic framework, along with its underlying social norms, is in decline – a slow, creeping decay.

Graber worries more for his children than himself. Even if decay takes time, we may already smell its foul odor: newspapers refraining from endorsements, constitutional provisions left unenforced, criminal convictions losing their condemnatory force, and increasingly partisan courts failing to check government power.

More troubling signs are already visible. Last week, we cautioned against the role of tech oligarchs in a second Trump administration. This week, President elect Trump reportedly already put Elon Musk on a phone call with Ukrainian President Volodymyr Zelenskyy. The consequences of these developments remain uncertain, but the stakes are undeniably high – from Ukraine to the Middle East and Taiwan. The collapse of the German government, less than a day after Donald Trump was declared the winner of the U.S. election, serves as yet another signal that Europe may not be prepared to maintain, at the very least, its support for Ukrainian resistance against Russian aggression.

These are not encouraging signs that “the institutions” – however defined – will contain Trump’s destructive potential.

Governance responsiveness and renegotiating progressivism

Yet Rosenblum too – an energetic Brooklynite with an encyclopedic knowledge of U.S. history – does not seem overly concerned. Perhaps it is the historian’s perspective that reinforces his confidence in the resilience of American democracy. Echoing Issacharoff’s remarks, Rosenblum notes that American democracy has withstood far graver turmoil. Issacharoff is “absolutely” certain there will be elections in 2028 and Rosenblum agrees. “Think of Lincoln”, he says. In 1864, amidst the Civil War and with little hope for victory, Lincoln held elections – and won. Similarly, Issacharoff had expressed relief that “the institution of voting” not only held but performed “phenomenally” on Tuesday, with no major disruptions and the assurance of a peaceful transfer of power.

For democracy to thrive, Rosenblum argues, policy must respond to electoral choice. As troubling as certain proposed policies may be, as long as core democratic institutions – voting, peaceful transfers of power, the rule of law – remain intact, Republicans must be allowed to enact their policies. In four years, the American people can decide if they still want them. Whether this approach will succeed remains uncertain. Poland and Brazil offer reasons for optimism; many other examples do not.

Since Tuesday, the three of us have often remarked how reassuring it was to meet so many engaged individuals and how much hope we drew from those encounters. Conversations with volunteers, voters, and academics reflected a prevailing belief that American democracy is deeply rooted and unlikely to unravel overnight. Tens of millions of vigilant Americans – community organizers, lawyers, journalists, politicians, academics, and whistleblowers – will check this administration.

Our conversations and encounters also drove home that many Americans possess a much more progressive vision of their values and ideals than the one endorsed by this election. To many, it is devastating that key sentiments of liberal progressivism – women’s rights, LTGBTQIA equality, racial justice – must still be negotiated and argued for, let alone defended against targeted assault. Yet it is also clear that simply telling people their views are wrong because they defy this liberal orthodoxy is not enough to convince them otherwise, even counterproductive.

America’s electorate could very well reject Republicans in the 2026 midterms and in future presidential cycles if the party veers too far towards authoritarianism. But if the Democratic party and those supporting it want to defeat the Trumpian assault not just on America’s democratic institutions but also on its progressive ideals and the hard-won rights of historically oppressed minorities, it must find a way to meet and communicate with those that eschew these idea(l)s.

And yet, wariness

We cannot help but close on a cautious note. For some – especially those with lower personal stakes in this election – the costs of a Trump administration may feel abstract. Scholars like Issacharoff, Graber, and Rosenblum emphasize that the election’s impact will differ widely across communities. Beyond confident predictions of democracy’s endurance, we must remember that if Trump follows through on even a fraction of his pledges, the repercussions – death, displacement, deportation – will be immediate and devastating for millions of people. In a particularly grim twist, many of the communities that leaned toward Trump this election – especially Hispanic and Arab American voters – could be among the first to feel the heat, facing detention, deportation and the destruction of Gaza.

Yet it does not even have to involve death or deportation. Just yesterday, a colleague shared an email thread among parents at her kids’ high school. One parent, whose child had just graduated college and started a job at a conservancy, was anxious about how funding for that job might be impacted. Others wondered if they should buy a new car before tariffs hit. Another parent advised her naturalized Hispanic daughter, newly 18, to carry her American passport everywhere. Life has already changed for millions of Americans.

There is also an unsettling pattern of shifting the goalposts on what is acceptable. Not long ago, Trump seemed disqualified from office but the Senate acquitted him. Then, belatedly, the legal profession invoked a constitutional clause that seemed to disqualify anyone who conspired against the United States from running for President. Yet, as Trump surged in the polls, the normative power of this provision faded before a majoritarian reality. Some proceeded to claim that America defeats wannabe dictators at the ballot box; clearly, it does not.

The hope that America will reject in four years what it has now overwhelmingly embraced – or at least accepted as collateral – may thus also prove to be wishful thinking. This is especially so in case of a crackdown on free media, academia, and independent voices: without them, a strong rejection of authoritarian Trumpism will be impossible to mount. Therefore, for all the justified faith in an institutional system that has withstood a civil war, major social upheavals and two world wars, we all – in the United States, Europe, and all over the world – must be vigilant.

Democracies – especially their most inspiring forms – tend to die slowly, bit by bit. America’s electorate has launched a dangerous experiment that will fundamentally alter global politics and American constitutionalism. Nobody knows yet how lasting the challenges to American democracy will be. What we do know, however, is that democracies are far easier dismantled than sustained or resurrected.

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Editor’s Pick

von EVIN DALKILIC

1, 2, 3, dead. A quarter of the Belarusian population lost their lives in the Second World War. The vast majority were murdered by the Germans. 1, 2, 3, dead. I first became aware of this horrifying count when the credits rolled on Elem Klimov’s film “Come and See”. The story follows Fljora, a teenager in the Soviet Republic of Belarus, who joins the partisans in the fight against the Germans in 1943. The film begins with Fljora digging in the sand and finally pulling out a rifle while laughing. He doesn’t need it to play but to fight the Germans. What follows feels like a terrible fever dream that makes the incomprehensibility of war physically palpable, and visible in Florja. After only a short time, the seemingly cheerful boy from the beginning looks like a broken old man, without having fought a single time. After all, wars don’t make for stories of heroes, especially not for children.

The Germans killed about 2 million people in Belarus. They burnt down 628 villages along with their inhabitants. Ales Adamovich, Uladzimir Kalesnik and Yanka Bryl spent three years travelling across Belarus, recording accounts from survivors and turned them into a book. Adamovich, who co-wrote the screenplay with Klimov, read the book to the villagers during filming breaks. I wanted to read it too, but was stunned to find that after almost 50 years there was still no German translation. Now there is. It has just been published under the title “Feuerdörfer”, my pre-ordered copy is still waiting at the post office. So please forgive me for recommending a book I haven’t even read yet. You are more than welcome to complain about this to me in person at the book presentation on 18 November in Berlin.

Elem Klimov, Come and See, 1985, 142 minutes

Ales Adamowitsch/Uladsimir Kalesnik/Janka Bryl, Feuerdörfer, Aufbau 2024, 39 €, 587 pages

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The Week on Verfassungsblog

… summarised by EVA MARIA BREDLER

What a week, huh? Let’s try to pick up the pieces of what blew up in our faces over the past few days.

The USA have voted Trump into office. This time he even won the popular vote, despite multiple criminal convictions. We fear the worst for the USA and the world, especially for minorities, democratic institutions, the Israel-Gaza-war, Ukraine, NATO, the climate – and for international law. With Trump in the White House and Gaza in ruins, one might ask what the international rules-based order is still worth. ITAMAR MANN’s (EN) answer: international law at least provides us with a moral vocabulary to help us name what we’re seeing. It is like a spectre lingering in our political imagination, even if it doesn’t always manifest in visible outcomes.

In that spirit, SEBASTIAN BRUNS and HEIKO MEIERTÖNS (GER) see little more than a ghost story in Russia’s accusations that Germany is violating the Two-Plus-Four Agreement by stationing NATO troops in the territory of the former German Democratic Republic.

A few hours after Trump’s victory, Chancellor Olaf Scholz sacked his Finance Minister Christian Lindner, making Germany’s three-way-coalition collapse. It didn’t come as much of a surprise, but still with a surprising bang. Scholz wants to call a vote of confidence only in January, while CDU leader Merz insists on calling it now. ALEXANDER THIELE (GER) maps out the path for a constitutional break-up: Scholz can call the vote whenever he wants. And until then, Germany will be led by a minority government.

Indonesia is ruled by anything but a minority government: the new president, Prabowo Subianto, has assembled a cabinet of 48 ministers – hodge-podge of anti-Sharia pluralists, nationalists, Islamists, protectionists and anti-regulation neoliberals, all swearing fealty to the magico-religious state ideology and foundation, the Pancasila. IGNATIUS YORDAN NUGRAHA und ABDURRACHMAN SATRIO (EN) argue that Prabowo’s cabinet mirrors parallels the ideology of the “family state”, which envisions the state as a large Indonesian family working together to maintain familial harmony. Perhaps useful inspiration for future German governments, that whole harmony thing.

This week saw resolution not only from Chancellor Scholz, who is not particularly known for it. On Thursday, the Bundestag passed the controversial resolution on antisemitism which requires authorities to check cultural and scientific projects for “antisemitic narratives” before releasing funds. ITAMAR MANN und LIHI YONA (GER/EN) explain why the key IHRA definition threatens the plurality of Jewish identity.

The upcoming German election will flood the internet yet again with hate speech and disinformation – a test for the Digital Services Act (DSA). The DSA envisions “Trusted Flaggers” to combat illegal content online. Now that the German Federal Network Agency has named the first Trusted Flagger, some fear censorship. Rightly so? HANNAH RUSCHEMEIER (GER) trusts the concept, considering Trusted Flaggers as part of “democracy hygiene” that follow transparent procedures. For JOSEF FRANZ LINDNER (GER), however, these flaggers pose unacceptable risks to freedom of expression and democracy.

DANIEL HOLZNAGEL (EN) examines another DSA tool: online dispute settlement bodies. Four such bodies have now been certified, and most have already started taking cases. Daniel Holznagel spoke with representatives from these bodies and describes their setup and experiences.

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Just before collapsing, the German government passed a “security package” that, among other things, restricts benefits for asylum seekers in Dublin procedures. According to CHRISTOPH HRUSCHKA (GER), this measure evidently violates EU law.

The Federal Constitutional Court has now declared parts of the strategic domestic-foreign telecommunications surveillance of the Federal Intelligence Service unconstitutional. Before the ruling was released on Thursday, ANNA HÖNING (GER) suggested how to restructure the complex oversight architecture in a more efficient way.

Last week, the Federal Constitutional Court issued its long-awaited ruling on BAföG student aid. Many expected the Court to find a right to an existential minimum for students. But it did not. SHARI GAFFRON (GER) regards the decision as a setback for social mobility in a country where access to higher education still largely depends on one’s parents.

ANDREAS GUTMANN (DE) defended the Erfurt Regional Court’s decision, which derives rights of nature from the Charter of Fundamental Rights, against criticism. CHRISTOPH DEGENHART (GER) feels Gutmann’s critique of the critics misses the mark, primarily because it assumes rather than justifies the rights of nature. He shares the rule-of-law concerns raised by ANDREAS FUNKE (DE).

Italy made international headlines a few weeks ago for criminalizing surrogacy abroad. Not quite, clarifies MARIA CHIARA UBIALI (EN) – rather, Italy has made its existing surrogacy ban enforceable in an international context, a move that Maria Chiara Ubiali also considers telling about Italy’s understanding of state power.

And finally, we’ve concluded last week’s symposia.

Closing our debate on “Europe’s Foundation and its Future: The EU Charter in Focus” (EN), MARJAN KOS advocates for a pluralistic interpretation of Art. 53 that allows accommodation of national particularities to reduce constitutional tensions in the EU and find unity in diversity after all. GIOVANNI ZACCHARONI calls on the EU to join the Council of Europe’s first AI Convention to establish a common constitutional language for digital fundamental rights in Europe. ILARIA GAMBARDELLA, TATIANA GHYSELS, MARLEEN KAPPÉ, SOPHIE-CHARLOTTE LEMMER, YANN LORANS, ALEXANDROS LYMPIKIS and ALICJA SŁOWIK suggest three pathways to enhance EU control mechanisms for an ex ante fundamental rights review. ELEONORA DI FRANCO explains why we are no closer to the EU’s accession to the ECHR today than we were 10 years ago. ELEANOR SPAVENTA offers an alternative perspective on autonomy & mutual trust in the EU.

Concluding our symposium on “Europe’s Geopolitical Coming of Age: Adapting Law and Governance to Harsh International Realities”, OMAR KAMEL sees security issues through the lens of mass media while HENNING LAHMANN  looks into the way policy makers seek to protect information ecosystems in Western European societies.

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That’s all for this week, at last. Keep your heads up, there’s no salvation in despair. People trump fascists, as MARTIN MYCIELSKI put it in his brilliant “Authoritarian Regime Survival Guide”:

“Be strong, fight, endure, and remember you’re on the good side of history.

EVERY authoritarian, totalitarian and fascist regime in history eventually failed, thanks to the PEOPLE.”

Yours,
the Verfassungsblog Team

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