The UK’s desire to prove its international relevance after Brexit, together with the COVID pandemic, produced a unique opportunity: a two-year Presidency of the UN climate talks for the country that has long been the most active in climate change diplomacy. A chance to test a new approach – after thirty years of slow progress, better late than never.

The presidential elections of 2016 and 2020 were two of the most disconcerting in American history. In 2016, the winning candidate lost the popular vote by 3 million votes and never obtained the support of the public. In 2020, the incumbent president lost by 7 million votes. Instead of conceding defeat, he exploited the complex system of certifying the results to prolong the denouement of the election, attempting to subvert the U.S. democratic process. Both elections raise serious doubts about democracy in America. At the core of these misgivings is the electoral college.

The electoral college is an extraordinarily complex mechanism for selecting a president. State and national laws drawn to implement the electoral college system have only added to the complexity—and the risks of a malfunction. The allocation of electoral votes among the states may not accurately represent the citizens resident in those states. Electors are not wise elites, and they may make errors or violate their charges when casting their votes. The constitutional provisions and laws required to implement the electoral college are open to multiple interpretations and may well involve Congress and the courts in partisan wrangling over which candidate won a state and which electoral votes to count. Their decisions may misrepresent the public’s wishes. Donald Trump’s attempts both to create alternative slates of electors and to reject certified electors from states won by Joe Biden could only occur because there was an electoral college. The absence of a right to vote in presidential elections is certainly inconsistent with our notions of democracy. Similarly, the selection of the ultimate choosers of the president—electors—by party committees is contrary to our notions of transparency and popular participation. Allowing a state legislature to choose the winning slate of electors of a state makes a mockery of popular selection of the president.

Elections for the presidency, the Majles, and the city councils perpetuate the politics of hybridity, which in turn has left each of these institutions with conflicting legacies. Hybridity has left them neither democratic nor authoritarian, neither paragons of the people’s political will nor symbols and symptoms of an unresponsive and repressive state. Hybridity perpetuates the politics of ambivalence. It renders presidents and parliamentarians and city councilors ineffective if they cross amorphous, undefined redlines. But it also makes them exciting symbols of the popular will if they speak the people’s language, voice their complaints about prices, and promise to better their lives. Hybridity makes normal a neither-here-nor-there routine of the politics of voting and going along with the system, and, on occasion, breaking into protest out of frustration that rituals like voting matter little. Hybridity and ambivalence go hand in hand, reduce the costs of conformity, increase the price of rebellion, and make possible occasional bouts of protest and violence. Like elections, institutions such as the presidency and the parliament entail risks for the authoritarian core of the state, affording potential wildcards institutional platforms and resources to further their own agendas.

The UK’s desire to prove its international relevance after Brexit, together with the COVID pandemic, produced a unique opportunity: a two-year Presidency of the UN climate talks for the country that has long been the most active in climate change diplomacy. A chance to test a new approach – after thirty years of slow progress, better late than never.

American constitutionalism consists of two quite foundational, conflictual, but ultimately interdependent understandings of the presidency – what we might think of as the president’s “two bodies.” On one view, the presidency is an individual – a “he” (maybe one day “she”). Presidential power is individualistic along three dimensions: it is singular, temporary, and personal. On the other view, the presidency is an institution. It is composite, permanent (or at least indefinite), and impersonal. Ever since George Washington embodied the idea of an institution still in the making, we’ve had this deep tension – these competing impulses between a personal or charismatic president and a more impersonal and deliberative institutional presidency. Public law reveals different perspectives on how to manage this duality. But public law cannot resolve it. Rather, the president’s “two bodies” is the defining ambiguity of the constitutional office. It is the conception on which our understandings of presidential power rest.

For present purposes, I take “America’s Unwritten Constitution” to refer (at least in some measure) to the norms, conventions, and practices that have developed in America to give meaning to, and fill in the gaps of, the constitutional text that was penned in 1787, ratified by a requisite number of states shortly thereafter, and formally amended by the Bill of Rights in 1791 and seventeen times during the two-and-a-quarter centuries since. One important constraint on the nation’s Unwritten Constitution is that is must, at some acceptable level, accommodate itself to the written document. A related feature of the Unwritten Constitution is that, as with the formal text, abiding aspects of the unwritten version need to be anchored in some kind of political foundation. These two features of the Unwritten Constitution – a fidelity to the document itself and a grounding in democratic processes – can be helpfully appreciated by examining another crucial component of today’s Unwritten Constitution, and one as to which federal courts have generally been much less central in determining the meaning and operation of the written Constitution’s provisions: the way we select Presidents in America.

Chapter 1 tells how even early on, as a presidential candidate but still a political novice, Trump had a special connection to some considerable number of the American people. It describes the demographic to whom he particularly appealed, the nature of his appeal, and the reasons for his appeal. It references how Trump’s candidacy could easily have stumbled, referencing an incident that shows how it nearly did. But then the chapter goes on to describe how and why he was able to survive near political disaster with relative ease. The visceral connection between Trump and his diehard followers explains why, despite so much gone wrong in 2020, a public health crisis and an economic crisis, Trump’s base held firm. The chapter finally makes clear how it is Trump’s base that explains everything – that explains how he was able to be so bad a president and get away with it, until Joe Biden finally pushed him out of the Oval Office.

Chapter 8 investigates the effects of group empathy on attitudes regarding a variety of policy changes that took place after Trump’s election. We examine how group empathy affects support for the Trump administration’s border wall and family separation policies, as well as its attempts to end the Obama-era DACA program. We also revisit Trump’s travel and immigration ban on several Muslim countries after he turned his controversial campaign promise into government policy via executive order. We further explore how group empathy influences opinions about some other group-related political issues such as hurricane relief for Puerto Rico, misappropriation of Native American names, symbols, and imagery in sports, as well as removal of Confederate statues and monuments. Finally, we examine the relationship between group empathy and support for contemporary social movements, namely Black Lives Matter, #MeToo, and LGBTQ rights. In all these tests, we find that group empathy is a powerful determinant of public reactions to the Trump administration’s policies above and beyond partisanship, ideology, and many other predispositions including racial resentment, even for issues concerning non-racial/ethnic marginalized outgroups.

The International Criminal Court is a distinct international organization headquartered in The Hague. It works in close cooperation with the United Nations but is independent of it. The Court is composed of four ‘organs’: the Presidency, the Chambers, the Office of the Prosecutor and the Registry. The Presidency consists of the President and the two Vice-Presidents, who are elected by the Plenary of judges. Judges are elected by the Assembly of States Parties to terms of nine years; they must be nationals of a State Party. The judges are constituted into Divisions, for Appeals, Trials and Pre-Trial proceedings. Within each division may be one or more Chambers. The Appeals Chamber is generally composed of five judges while the other Chambers are generally made up of three judges, although a Single Judge may issue rulings in some cases. The head of the Office of the Prosecutor is the Prosecutor, who is elected to a nine-year term by the Assembly of States Parties. The Registrar is nominated by the judges but elected by the Assembly of States Parties and serves a term of five years. The Registrar is the principal administrative officer. The Court’s annual budget is proposed by its organs but must be confirmed by the Assembly of States Parties.

Focusing on three powers, Loch K. Johnson discusses the toll the rise on the national security state has taken on the intelligence community, the presidency, and the Congress. Providing a comparison of the transformation of these powers under Presidents George W. Bush, Barack Obama, and Donald Trump, Johnson chronicles the suspension of founding constitutional principles and asks whether it is possible to return to first principles on any of these fronts.