‘By the Grace of God’

During the speech held at the Republican National Convention, which confirmed him as a presidential candidate, Donald Trump claimed: “”I stand before you in this arena only by the grace of almighty God“. From the immediate context, it was clear that he was referring to the fact that he survived an assassination attempt. The words might be resounding differently right now, in the run-up to his inauguration as President of the United States. And they might do so even more during his presidency. In this post, I try to highlight why the question of legitimacy might be a critical tool for analyzing the current political and constitutional situation in the United States of America after Donald Trump’s triumph, specifically considering his rhetoric and behavior.

The question of legitimacy

As is well known, “by the grace of God” is a typical formula used by Christian monarchs and expresses a type of theologically-grounded legitimacy. The formula can be found in the Old Testament. In political terms, it meant that monarchs were only accountable to God, since the source of their right to rule was divine.

One can, of course, criticize many dimensions of Donald Trump’s public and political activities. There are many good reasons to censure his policies and to denounce his personality. But there might be an even more dramatic story unfolding behind that.

It’s a story that finds its dramatic start on January 6, 2021, and that has continued with Trump claiming that he will be a “dictator” on the first day in office, that he will prosecute political enemies, and that he would only recognize election results if he won and with the announcements regarding his cabinet, ultimately defined, as has been claimed, only by strict and absolute loyalty to his person. It’s a story about the terms according to which Trump and his supporters view the legitimacy of his presidency.

The most obvious and apparent view would claim that Trump’s legitimacy was given by his election, by the fact that he won the majority of the states, which gave him enough votes in the electoral college to be appointed as President of the United States according to the Constitution. But such a view misses something fundamental about what he has been saying and how he has been acting ever since the end of his first presidency.

Indeed, if one thinks in terms of Max Weber’s tripartite distinction regarding the types of legitimate rule, a somewhat different picture might surface. Modern democracies, based on the idea of popular sovereignty, that is, the notion that the ultimate holder of political power is the people and that those holding office merely represent them for a specific term and subject to legal limits, function according to what Weber identifies as a rational type of legitimacy. It is based on legal rules, which grant certain individuals powers according to a preestablished system. The principle of popular sovereignty finds its necessary organization in (constitutional) rules that define how the people might choose and elect their representatives, and what powers the latter hold. This idea is what lies behind something as trivial as candidates acknowledging defeat after an election: Since the ultimate authority lies with the people, and since the people exercise that authority through the series of democratic mechanisms and procedures established by the constitutional order, acknowledging defeat means nothing else than to recognize, openly and for everyone to see, that the people have chosen someone else, who can legitimately represent them and exercise power according to the constitutional order.

Critically, the fact that someone has been elected to represent the people in a particular office doesn’t grant them any more rights than those established by law. Since the people are the ultimate holder of political power, which can be exercised only through legal mechanisms and procedures, an attack on the legal system by an office holder means an attack on her or his own legitimatory basis, on the grounds on which she or he represents the people, and, in the end, an attack on the people as sovereign.

Seen like that, it is relatively easy to grasp that Trump’s behavior expresses an entirely different view about his own legitimatory basis. One that shows no commitment whatsoever to procedures through which the people express themselves, or to the legal order on which his own power might be thought to rest.

Max Weber provides another category that seems much better suited to describe Donald Trump’s legitimacy, at least how he himself and his supporters might see it: Charismatic legitimacy. This is a type of legitimate rule based on personal qualities of an individual, his or her charisma, which Weber defines as “the personal quality that makes an individual seem extraordinary, a quality by virtue of which supernatural, superhuman, or at least exceptional powers or properties are attributed to the individual: powers or properties that are not found in everyone and that are thought to be the gift of God or exemplary, rendering that individual a ‘leader’”.

A charismatic leadership, Weber notes, is, precisely due to the exceptional qualities on which it is based, extraordinary, and as such, radically opposed to the other two types of “ordinary” legitimacy he identifies: rational and traditional, respectively based on rules and precedents from the past. Charismatic legitimacy implies a break with both of these other legitimating rationales.

Legitimacy, politics and the constitutional order

Has Donald Trump’s rhetoric definitely broken with the realm of a rational, legally bound legitimacy based on the idea of popular sovereignty and, perhaps even more importantly, will his decisions as President too? Has he definitely crossed the line and become a charismatic leader, in Weber’s sense, one that stands on a completely different legitimatory basis with which the system is supposed to operate? These are complex questions whose answers in part depend on an unknown future. How serious that possibility is, however, can be observed by looking at the language used in the past months: It’s not an accidental choice of words when the White House’s statement issued regarding the decision in Trump v. United States claims that “[t]his nation was founded on the principle that there are no kings in America”.

What we are certainly in the position to tell as of now, is that there are many elements in his public discourse and conduct that point in the direction of him considering himself not legitimated nor bound by the system that got him elected. And more importantly, that for a large share of the American people, those elements do not have enough weight as to dissuade them from voting for him as President.

This is a dramatic, but perhaps unsurprising insight if one looks at the current political discourse from the perspective of a liberal constitutional order. The United States of America show the signs of a particularly dysfunctional political confrontation that has become common, however, in many other regions of the world as well. It is a type of political clash in which the subtle distinctions and relatively fragile notions with which constitutional systems based on rational legitimacy grounded on the idea of popular sovereignty function are swept off by, in the words of Schmitt, existential distinctions between friends and enemies. In that light, acknowledging defeat in an election is no different than surrendering in an existential confrontation.

There is something worrying about the institutional dynamics of constitutional orders given the current political currency. Concepts and mechanisms that stand at the very core of (the possibility of) a constitutional order, such as rule of law, democracy, fundamental rights and separation of powers are reduced to absolute irrelevance if they cannot operate as proper constraints, as non-politically-negotiable limits for any political endeavor. Will they resist the thrust of existential politics? And when will we know?

A key problem in this dynamic is that the institutional disruption of our constitutional order, properly speaking, will always come too late for repair. It will probably be the final step of a process in which the constitutional order, as the visible operation of a specific type of legitimacy, might have lost its support to such an extent that its defense will be useless. This is exactly the reason why constitutional scholars should not only pay attention to the institutional procedures and mechanisms that continue to operate with a certain regularity – we must not forget that Loewenstein’s notion of a militant democracy is directed against using democratic institutions against the entire order as a way of capturing it – but to the discourse that fuels that operation. And here precisely lies the critical contribution that questions such as those of legitimacy can have in the current political and institutional situation of the United States of America and also in many other countries dealing with existential politics right now. Weber understood that questions of legitimacy can tell us something about the communities and their social and political dynamics. They are uniquely capable of identifying, independent from the institutional operation of the system, whether the discourse of those in power or attempting to obtain it rather falls within the logic of someone willing to acknowledge defeat according to a very secular order based on the rational legitimacy of popular sovereignty, or of someone exercising political power by the grace of God. And this dimension might have become, unfortunately, just as important in the present moment as during the time Weber was writing in the early years of the 20^th century.