Candidates Exchange Useful Views on the Constitution — Until Trump Announces He Might Just Blow It Up

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Photo: Bloomberg/Bloomberg via Getty Images

The final presidential debate got off to a shockingly substantive beginning with a segment on the future of the Supreme Court. Yes, Chris Wallace let the candidates waste some precious time with a vague question about their constitutional philosophies (and actually skewed it in a conservative direction by framing it as matter of accepting or rejecting that the Founders “meant what they said”). But he then managed to push Trump and Clinton through a discussion of two serious issues that have been before the Court: guns and abortion.

On guns, Clinton was put in the difficult position of defending her criticism of a Supreme Court decision (D.C. v. Heller) that the gun lobby has described as essential to the very existence of the Second Amendment. She began not by getting down into the weeds on Heller, but rather by asserting her support for an individual’s right to own weapons — with an opportunity for reasonable gun-safety regulations, especially those protecting children. That’s pretty much where the vast majority of voters happen to be. Trump responded by stonily insisting on an absolute Second Amendment, which was allegedly under imminent threat. In other words: He played straight to his base.

Oddly enough, the opposite dynamic occurred when the debate shifted to abortion. It is important to appreciate that Trump’s willingness to take a hard-line anti-abortion position, backed up by a hard-edged, specific pledge to appoint anti-abortion justices to the Supreme Court, is essential to his appeal to conservative Christians. There are many Christian Right leaders who have implicitly staked their own reputations on a promise that Trump will do everything a president can do to criminalize abortion. Yet, Trump strangely dodged Wallace’s invitation to personally oppose Roe v. Wade, and twice pointed out (accurately) that reversing Roe would simply turn abortion policy back to the states, instead of banning abortions. It is as though he suddenly decided to make a play for swing voters. Perhaps the realization that his low standing among college-educated women is killing his campaign became as important to him as placating his base. Clinton, in the meantime, stuck to her pro-choice position, and did not do a particularly good job of explaining that she might have supported a late-term abortion ban had it included a “health of the mother” exception.

On the inflammatory issue of late-term abortions, in fact, the public basically supports both a “partial-birth abortion” ban and a health exception — not a position either candidate took.

There were several other key Supreme Court issues Wallace might have raised, but we shouldn’t expect too much from the very first presidential-debate discussion of this topic, and after all: It probably didn’t matter much. What difference does it make how a presidential candidate thinks about the constitutional law of guns or abortion if he cannot even accept the constitutional scheme for the very election in which he is participating?

To be very clear, Trump cited reasons for his “wait and see” attitude toward accepting the peaceful transition of power that aren’t going to go away. The “millions” of unqualified registered voters, who he claims (without evidence) have fatally tainted the election, are not going to appear and disqualify themselves. If Hillary Clinton is truly unqualified to run for president because of criminal behavior, that’s not going to magically change, either. So, in effect, Trump was saying he’d only accept the election results if he wins.

This posture is not going to win over any swing voters, and we can only hope that a segment of his base is horrified as well. At a minimum, he has opened the door to a wholesale declaration of independence by down-ballot Republican candidates. Maybe Trump cannot win, but many of them can, and it’s hard to imagine they will refuse to accept the integrity of their own elections.