In 2016, candidate Trump famously boasted that he could stand in the middle of Fifth Avenue and shoot somebody without losing voters. The remark has survived because it seemed to capture something unusual about Trump's relationship with his supporters. He was claiming an extraordinary degree of political immunity.
But consider the proposition from the opposite direction. I seriously doubt that Donald Trump would take the chance of shooting a man in the middle of Fifth Avenue.
That may seem an odd place to begin a discussion about constitutional government. Trump has had many opportunities to test his Fifth Avenue hypothesis. He has not done so. Whatever his rhetoric, he apparently recognizes that there are things he should not do, things he cannot safely do, or things whose consequences he is unwilling to risk.
The more important question, therefore, is not whether Donald Trump recognizes limits. It is which limits he recognizes, and when he recognizes them.
That distinction matters because Americans have become accustomed to a peculiar way of thinking about presidential power. A President acts. Lawyers object. Lawsuits are filed. Judges issue orders. Appellate courts review them. Eventually, perhaps, the Supreme Court tells us whether what the President already did was constitutional.
We have transformed constitutional government into a system of retrospective correction. And we all know that is not the system the Constitution describes.
Before Donald Trump became President, the Constitution required him to take an oath. He did not swear merely to obey judgments of the Supreme Court. He swore that he would "preserve, protect and defend the Constitution of the United States"— the instrument as written, not the case law about it.
That obligation necessarily operates before action as well as after it.
Before acting, therefore, a President has an obligation to determine whether he possesses constitutional authority to do what he proposes to do. He does not need to consult the Supreme Court first. Indeed, in most circumstances he cannot. Article III confines the federal judicial power to cases and controversies. The Court does not sit beside the President as a constitutional advisory council. The President must make that determination himself. This is what distributed constitutional fidelity means.
We Have Been Asking the Wrong Question
The daily question — What will Trump do next? — focuses our attention on outcomes. The constitutional question is different: What is the President required to do before he does it? That is a question about process.
The distinction is more important than it first appears. Human beings have a remarkable capacity to survive defective processes. Governments do too. An unconstitutional act does not necessarily produce catastrophe. A constitutional violation may even produce an outcome that most people consider desirable. That does not make the process constitutional. Conversely, constitutional procedures sometimes produce outcomes we dislike. That does not make the procedures defective.
If we judge a system primarily by outcomes, survival can conceal error. The fact that an institution continues to function may persuade us that the process producing its decisions must be sound. History suggests otherwise.
The American constitutional system demonstrated the problem almost immediately. In 1789, the First Congress enacted the Judiciary Act to satisfy the demands of the Constitution. President George Washington signed it. Some of the people responsible for that legislation had participated directly in framing the Constitution itself. Yet Section 13 of the Judiciary Act contained a provision that the Supreme Court would later conclude was inconsistent with Article III. That fact should be astonishing.
Within months of beginning government under the new Constitution, people intimately familiar with its creation participated in enacting enabling legislation containing an unconstitutional provision.
Scholars have long debated whether Chief Justice Marshall read Section 13 correctly. That debate does not weaken the point. It sharpens it. Either the First Congress erred in enacting the provision, or the Supreme Court erred in reading it. Both were composed of capable people acting in good faith under a Constitution they knew intimately. One of them departed from it. The lesson should not be that these were foolish or dishonest men. The lesson is considerably more important: Human beings can depart from authoritative communication even when they know the communication, respect its authority, and sincerely believe they are following it.
That is why process matters.
The Constitution Had Already Supplied the Process
The early Republic provides evidence that constitutional fidelity was not originally understood as something exclusively enforced by courts after a violation.
In 1792, federal judges confronted duties imposed upon them under legislation concerning Revolutionary War pension claims. They concluded that the assigned functions were incompatible with the judicial role established by the Constitution. They did not perform the duties and wait for someone to sue them. They declined to participate.
The following year, President Washington asked the Supreme Court for advice concerning questions arising from American neutrality during the war between Britain and France. Chief Justice John Jay and his colleagues declined.
Again, there was no lawsuit requiring the Court to strike down presidential conduct. The Justices simply refused to perform a function they concluded the Constitution did not assign them. These episodes reveal something that our modern fixation on judicial review can obscure. Custody begins with avoidance.
A constitutional officer does not acquire the duty to respect the Constitution only after a court issues an injunction. The oath is preventive precisely because constitutional violations are sometimes irreversible, sometimes difficult to remedy, and sometimes never brought before a court at all.
Then came Marbury v. Madison.
Chief Justice John Marshall did not announce that the Supreme Court had become supreme over the Constitution. His reasoning was grounded in the opposite proposition: the Constitution was superior to ordinary legislation. A legislative act contrary to that superior law could not control. Courts were bound by the Constitution and so were the other departments.
That distinction has gradually become obscured as judicial review evolved in public understanding into something closer to judicial supremacy. The practical consequence has been a surrender of constitutional responsibility. Presidents and legislators increasingly can behave as though constitutionality is ultimately a question for courts: act first, defend the action later, and let someone with standing challenge it. That reverses the constitutional process.
The Oath Comes Before the Lawsuit
This brings us back to Donald Trump. The central constitutional problem is not that Trump is uniquely unpredictable. Nor is it that courts sometimes disagree with him. Presidents have tested constitutional boundaries throughout American history. The deeper problem arises when everyone involved accepts a model under which the President may act until a court tells him to stop.
Under that model, the President proposes an action. Government lawyers construct the strongest available defense. The action proceeds. Opponents sue. Courts determine whether the boundary was crossed.
But something crucial has disappeared from that sequence: the President's independent obligation not to cross the boundary in the first place.
The oath supplies that missing step. Before ordering an action, the President should ask not merely, Can my lawyers defend this? Nor merely, Has the Supreme Court expressly forbidden this? Nor even, Can I get away with this? The constitutional question is: What authority does the Constitution give me to do this? Those are profoundly different inquiries.
A clever lawyer can construct an argument for conduct that an oath-bound constitutional officer should nevertheless decline to undertake. Litigation asks whether an action can survive judicial scrutiny. Constitutional custody asks whether the officer should take the action at all. The first is remedial. The second is preventive.
One clarification is essential here, because the argument is easily misread. The President's duty to determine his own authority before acting is not a license to substitute his judgment for a court's after the court has spoken. The preventive duty and the duty to obey judgments are not alternatives. They operate at different moments. The oath governs the decision to act. The judgment governs what happens once that decision has been challenged and resolved. A President who invokes his own constitutional reading to defy a final judgment has not exercised custody. He has abandoned it at the second stage after neglecting it at the first, and violated the Constitution in doing so.
Why Survival Can Mislead Us
This problem extends well beyond Donald Trump. Human societies are extraordinarily resilient. Institutions compensate for mistakes. Other actors intervene. Political pressures develop. Elections occur. Courts sometimes correct errors. Sometimes nothing visibly bad happens at all. And because the system survives, we may conclude that the process worked.
That is dangerous reasoning. A bridge does not become properly engineered because it survives one overloaded truck. A scientific procedure does not become valid because an experiment accidentally produces the expected result. And an unconstitutional governmental process does not become constitutional because the Republic survives it.
This is where our emphasis should shift from outcomes to processes. The question is not simply whether American democracy survives Donald Trump. The question is whether we preserve the constitutional processes that are supposed to operate regardless of who occupies the presidency.
That principle protects Trump when his opponents hold power just as surely as it restrains him when he holds power. Constitutional fidelity cannot depend upon whether we approve of the officer or the outcome. Otherwise, we are no longer defending a Constitution. We are defending preferred results.
The Fifth Avenue Test
The Fifth Avenue remark therefore presents a more interesting constitutional thought experiment than Trump probably intended. Why doesn't a President shoot someone on Fifth Avenue?
The obvious answer is not that the Supreme Court has previously issued an injunction forbidding him to do so. He already understands that he lacks lawful authority to commit murder. He does not need judicial review to tell him beforehand.
Notice what that reveals. The President already relates to one body of law as a limit he checks before acting rather than a boundary he tests until someone stops him. He does not ask whether his lawyers can defend the shooting. He does not wait to see whether anyone has standing. He simply does not do it. The oath asks him to relate to the Constitution in the same way. That is the whole of the argument. The criminal law receives custody. The Constitution receives litigation. The oath was meant to close that gap.
Two objections deserve an answer.
The first is that the criminal-law disposition is reinforced by prosecutors, prisons, and political ruin, while constitutional self-restraint often has no comparable enforcement — particularly after the Supreme Court's 2024 decision recognizing immunity for official presidential acts. That is true. But it describes the problem rather than refuting the argument. The oath is the substitute the Constitution supplies for external enforcement that will frequently be absent. The Fifth Avenue example shows that the disposition is possible. The oath is what is supposed to produce it where nothing else will.
The second is that criminal prohibitions are mostly clear, while constitutional authority is often contested. Also true. A President may relate to the Constitution exactly as he relates to the criminal law and still get a hard case wrong in good faith. That is the lesson of Section 13. The disposition is necessary. It is not sufficient. Courts remain for the residue. But the residue is not the rule. The constitutional system depends upon the preventive disposition in less dramatic circumstances than murder, and in far more of them.
The President cannot reasonably demand a Supreme Court decision addressing every proposed exercise of presidential power before recognizing a constitutional limitation. The Constitution entrusts him with power and simultaneously requires him to exercise custody over the instrument that grants it.
The same is true of members of Congress, judges, and other oath-bound officers. Courts remain indispensable. Human beings make mistakes. Officials disagree. Some violate their obligations deliberately. Judicial remedies are therefore essential. But a remedy is not the same thing as the original duty.
A fire department is indispensable, but its existence does not eliminate the obligation to avoid starting fires. For too long, our constitutional conversation has concentrated on who extinguishes the fire. We should be paying considerably more attention to who had the obligation not to start it. Every morning, millions of people may continue asking: What will Donald Trump do next? The Constitution poses the prior question: What must President Trump determine before he does it?
That question is older than Trump, larger than Trump, and will remain after Trump leaves office. And recovering it may be one of the most important steps toward recovering the idea that constitutional government is not merely a system for correcting violations. It is a system designed to prevent them.
