The best way to save Donald Trump’s Constitution is to rewrite it


Respect to the Constitution, as Trump’s depredations make clear, is the indispensable foundation of American democracy. But deference is different from reverence. Constitution Day 2022 has arrived with more reason to be frustrated with the flaws in our national charter than at any time in generations.

The occasion highlighted two paradoxes related to the Trump era that will likely shape our politics long after Trump’s shadow is lifted.

First, Trump is rightly viewed as a constitutional threat, but from a progressive perspective, many of the more offensive features of his tenure were not unconstitutional. Instead, they flowed directly from its most problematic provisions. He was in office in the first place because the presidency is chosen by the Electoral College rather than popular vote. His influence will live on for decades because partisan manipulation of the Senate’s judicial confirmation power gave him three Supreme Court justices, who have no term limits and face no practical accountability mechanisms. Like some other presidents, but more so, he used the Constitution’s absolute power of pardon for purely self-serving reasons. In short, Trump may be an enemy of the Constitution, but he is also the president who has most exploited its flaws.

This leads to the second paradox. Anyone not a Trump supporter rightly laments the breakdown of the constitutional consensus that allows his supporters to condone or celebrate his election denial, in addition to other efforts to insulate themselves from the rule of law. In the long run, however, the most invigorating challenge to constitutional consensus is likely to come from the left, from supporters of militant government.

Correcting or circumventing what progressives reasonably perceive as the infirmities of the Constitution actually seems to be the preeminent liberal goal of the next generation. Progress on issues ranging from climate change to ensuring tech giants act in the public interest will depend on building a new constitutional consensus. Trying to put more sympathetic justices on the Supreme Court is unlikely to be an entirely adequate remedy. There are more fundamental challenges embedded in the document itself – in particular the disproportionate power it gives to states, at a time when the most pressing problems and the most credible remedies are national in character.

To be clear, there are many wonderful and enduring things in the Constitution. Weaknesses could be corrected by amendments that would easily garner the majority support of a national electorate. In addition to the above list – modifying or abolishing the Electoral College, limiting court terms, creating a check on the abuse of clemency authority – there are other obvious targets. A constitutional overhaul would clean up the infuriating and arcane language of the Second Amendment to make it clear whether effective gun control is allowed if guns have nothing to do with a “well-regulated militia.”

It is here, however, that the breakdown of constitutional consensus becomes potentially decisive – as it did in the Civil War and threatened in the New Deal. Popular majority or not, most of these amendments would be opposed by conservatives – which under the current Constitution means they are unlikely to pass. It takes three-quarters of the states to approve an amendment, a provision that gives many small conservative states wildly disproportionate power over the fate of the nation.

This is not a new problem, but it is a problem that threatens to reach a breaking point. Political scientist Norman Ornstein has popularized a striking statistic, validated by experts in demography. By 2040, 70% of Americans will live in just 15 states. This means that 30% of the population – coming from less diverse and more conservative places – will choose 70 senators. Already each senator from Wyoming, the least populous state, exercises power on behalf of less than 600,000 people, while each senator from California, the most populous state, represents nearly 40 million. This distortion of democracy, already difficult to defend, could become the characteristic feature of national life.

This distortion, much more than Trump’s vandalism, is the most likely source of a real constitutional crisis in the years to come.

But isn’t that exactly what the Founders had in mind, convinced that the country was a union of states retaining broad sovereignty? One answer is that the current conflicts plaguing American democracy may not be at all what they intended. The great concern of the drafters was to create a system of government capable of self-criticism and self-correction. Several pieces of the Constitution now interfere with this ability.

Another answer, however, is: Who cares what they thought then? The Constitution was written at a time when states were indeed fundamental – central to people’s identity and way of life. This has not been the case for almost a century, as national government and national identity have grown stronger. States remain essential administrative units. But the rural conservative voter in California — which had more Trump voters than any state, even though it lost it by nearly 30 points — has more in common politically with a rural conservative in Dakota. South than with the urban progressives of New York or San Francois.

The most effective leaders did not cling to constitutional understandings that were overtaken by new moral imperatives. Abraham Lincoln used the demands of war to eradicate slavery, even though slavery until then had been considered a protected constitutional right. “According to the general law, the life and the member must be protected; yet often a limb must be amputated to save a life; but a life is never wisely given to save a limb,” Lincoln wrote in a famous letter. “I felt that measures, otherwise unconstitutional, could become licit, by becoming indispensable to the preservation of the constitution, through the preservation of the nation.

So what will happen this time, when amending the Constitution seems unlikely but living indefinitely with outdated provisions seems intolerable?

The story suggests multiple possibilities. A decisive conflict is an answer – the reason why talk of a “new civil war” is becoming more and more common. Harvard law professor Noah Feldman (who gave his Constitution Day address this year at Brigham Young University) wrote in “The Broken Constitution: Lincoln, Slavery, and the Refounding of America” ​​by last year that Lincoln did not save the Constitution so much as “something more dramatic and extreme: the frank rupture and the frank recasting of the whole order of the union, of the rights, of the constitution and of the freedom.

But there are other means than violent rupture to survive these times, like now, when the Constitution no longer reflects the imperatives of the moment. One of those ways is when clever improvisation creates a new consensus. The Supreme Court struck down much of FDR’s original program, but the New Deal’s central assumption—that we live in a national economy with a robust, responsive national government—prevailed, aided by a radically new understanding of the clause. of interstate commerce. Another way to survive is luck. During the Cold War, presidents had (and still have) a power never envisioned in the Constitution – the ability to blow up the world with nuclear bombs on command, in minutes, without the approval of Congress or anyone else. either else.

Conflict, improvisation, good luck – all three will likely be needed for the country to survive the coming constitutional confrontation. If successful, we may one day go back to not paying much attention to Constitution Day.


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