Posted by Curt on 11 May, 2016 at 6:51 pm. 18 comments already!


Andrew C. McCarthy:

Victor Davis Hanson comprehensively outlines the conservative dilemma over the coming showdown between two non-conservative presidential candidates. Under the circumstances, examinations of Donald Trump’s fitness vel non must be measured against that of the current incumbent and the Democrat who hopes to replace him. Thus, Victor observes the irony that, even as we fear the Trump Armageddon, we are already living and must continue to dread the Obama–Clinton Apocalypse.

This thesis passes over the crucial preliminary question that is raised, and answered with great persuasive force, by Kevin D. Williamson: Is Trump so thoroughly unfit as to be disqualified from serving as president? I am very sympathetic to Kevin’s argument in the affirmative, but ultimately I cannot agree with it.

The Constitution’s threshold for qualification to serve is exceedingly easy to meet: One need only be a natural-born citizen who has reached the age of 35 and resided in the U.S. for 14 years (Article II, Section 1).

Is there more to it than that? What if the person is, say, non compos mentis? Well, for a person who already is president, the 25th Amendment provides a process for removal if the president “is unable to discharge the powers and duties of his office.” That certainly implies that a person under such disability should not be elected in the first place. Still, the removal of a president for alleged unfitness — generally, some physical or mental disability — is a political determination, not a legal one. In that regard, it is the same as impeachment, the grounds and procedure for which I outlined in Faithless Execution.

With impeachment, the bottom line is that, legally, the House can be in a position to allege and prove a thousand high crimes and misdemeanors, but, politically, unless there is such strong public support for the president’s removal that a Senate supermajority (two-thirds) in favor of removal can be marshaled, the president may not be removed. Similarly, in cases of alleged disability, even if the vice president and top executive department officials claim that a president is not in his right mind (supported, let’s say, by a panel of independent, non-partisan psychiatrists), a president who objects may not be removed absent votes in support of removal by two-thirds’ supermajorities in both congressional chambers.

Simply stated, the Constitution puts more stock in politics than in law. A person is presumptively fit to serve as president if the public, acting through its representatives, elects and declines to remove the person. The Framers assumed the republican process they designed would weed out any candidate who was demonstrably unsuitable, and would force the removal of any president who was traitorous, corrupt, incompetent, or otherwise unable to perform the responsibilities of the office.

Even legal processes produce plenty of wrong results, yet they are more carefully geared toward producing correct results than is the political process. With the latter, convincing voters of the rightness of one’s position does not involve proving the rightness of one’s position.

I believe, as Kevin believes, that Trump is unsuitable to the office of president. I cannot say, however, that he is disqualified. He meets the minimal criteria. Beyond that, there is no legal way to deny him the office on unfitness grounds. He can be denied only if the voters find him unfit. Republican primary voters have not found him unfit, so now it will be up to the general electorate. Their conclusion could end up being wrong — indeed, an alarming number of political positions triumph in elections despite being against the national interest (see, e.g., Obama 2008 and 2012). But it is for the voters to decide.

If presidential fitness were a legal question, it would be possible to make rules about what factors may or may not be weighed in reaching a conclusion. Such rules are routine in legal determinations. You could make a rule that a candidate’s suitability for office is to be decided solely based on his own mental and physical attributes, and that these are not to be weighed against other likely candidates.

But because presidential fitness is a political determination, it does not lend itself to such rules. People may be inclined to judge candidate A’s fitness in comparison with candidate B’s. It is not necessary to see things that way, but there is nothing illegitimate about it. It is inevitable, in a matter involving choice, that many if not most people are going to compare the two candidates, weighing the deep flaws of each against the other.

On the other hand, neither Donald Trump nor the Republican party has any entitlement to votes from the #NeverTrump camp, including its Republican members.

Again, elections are often as not about unsavory choices. If Trump does not get enough votes, Hillary will win. Thus a #NeverTrump person must decide if his or her objection to Trump outweighs the harm done by failing to vote against Hillary. For me, it may not. That is why, despite being anti-Trump, I am not #NeverTrump. But I certainly see the sense, and do not question the good faith, of people who decide they simply cannot vote for a person they believe to be unfit, regardless of how unfit the opposing candidate is.

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