ProPublica’s Jake Pearson has uncovered a contradiction involving Transportation Secretary Sean Duffy. Duffy has “been one of the most vociferous defenders of President Donald Trump’s expansive use of executive authority, withholding billions of dollars in federal funding to states.” However, “in an assertive, thoroughly researched 2015 legal brief, Duffy, then a Republican representative from Wisconsin,” argued that the power of the purse belonged exclusively to Congress, which may not even choose to delegate its power to the Executive.
I am deeply critical of the actual policy choices of the Trump Administration, in transportation and in other areas. Also, Duffy’s 180-degree turn on the Constitution makes me suspicious. Pearson quotes me:
Peter Levine, a civics expert at Tufts University, said that while it could be that Duffy’s views on presidential power have evolved over time, his apparent flip-flopping on something as fundamental as the meaning of the Constitution raises the prospect that Duffy may “just be playing a game for power.”
“The Constitution is a promise to continue to apply the same rules and norms over time to everybody,” he added. “When political actors completely ignore that, and just go after their own thing, I don’t think the Constitution can actually function.”
On one hand, we should tolerate changes in opinion. When a political leader adopts a new position, I don’t generally complain about “flip-flopping.” We want leaders to listen, deliberate, and learn. One of many ways in which our culture works against deliberation is by denouncing individuals for being inconsistent over time. Stubborn consistency is the hobgoblin of closed minds.
In fact, it can be an ad hominem fallacy to say, “You must be wrong because you previously held the opposite view.” In general, we should debate a position and the reasons for it, not the consistency of the speaker over time.
On the other hand, a constitution–in the broadest sense–is a pact to apply the same rules to everyone. Although constitutions vary, constitutionalism itself is the principle of limiting everyone’s power in the same way. To make a constitutional argument (as Duffy did explicitly in his 2015 amicus brief) is to say, “This rule should apply to me as well as my opponents.” When a person who wields power suddenly changes his mind about constitutional principles in ways that benefit himself, it certainly looks like a betrayal of constitutionalism. And any constitution is just a piece of paper unless most of the key players respect the principle of consistency–and unless voters demand that of them.
See also: the Constitution is crumbling; are we seeing the fatal flaw of a presidential constitution?; constitutional piety etc.