America’s Founders would be 'astonished' by Trump’s abuses: legal scholars

When the United States Bill of Rights — the first ten amendments to the U.S. Constitution — were ratified in Philadelphia in 1791, the Founding Fathers created a system of checks and balances that were designed as safeguards against authoritarianism. But according to legal scholars interviewed by the New York Times, President Donald Trump is testing them in a major way and finding loopholes that the Founders and Framers didn't anticipate.

New York Times reporter Adam Liptak, in a Memorial Day article, explains, "The men who drafted the Constitution knew they were playing with fire when they created a novel and powerful new office: the president of the United States…. The Framers were not blind to the danger that they were creating a new kind of king, and the Constitution they adopted a few months later tried to strike a balance in inventing what was then a wholly novel office. They wanted a president who was decisive, responsive and responsible. But they also sought to establish a constitutional structure able to constrain a president who aspired to be a monarch."

The Founders and Framers, Liptak writes, were "brilliant" when they drafted "the oldest written national constitution still in force anywhere in the world." But legal scholars believe that Trump's second presidency "approaches the maximalist view of presidential power" that Benjamin Franklin "and other Founders feared."

One of those scholars is Saikrishna Prakash, a University of Virginia law professor.

Prakash told the Times, "I think they'd be astonished, not merely by Trump, but by the breadth of the executive power in the modern era…. They expected that impeachment would deal with scoundrels."

Prakash said of Congress, "They have a lot of authority. It's just that, in the modern era, it’s very hard for them to flex it, because half the Congress is in the president's pocket and the president has a veto."

According to Stanford University law professor Michael W. McConnell, the Founders "expected that the president would be bound by a sense of duty to the law and to the Constitution."

But Michael J. Klarman, a law professor at Harvard University in Cambridge, Massachusetts outside Boston, said of the Founding Fathers and the Framers, "I don't think they could imagine where we ended up…. They tried to create a system that was resistant to populist influence. When they talked about what populist interests could produce, they actually described a kind of demagogic authoritarian like Trump."