Madison’s Nightmare Has Come to America

The impeachment and subsequent acquittal of President Trump have revealed deep flaws in the constitutional system.

The U.S. Capitol
Mary Calvert / Reuters

The Senate’s impeachment trial of President Donald Trump is over, ending with all but one Republican voting to acquit. But the effort to make sense of its constitutional ramifications is only beginning.

Almost a half century ago, President Richard Nixon’s resignation was thought to have proved that the constitutional system worked, with the House, the Senate, and a special prosecutor each having conducted long, painstaking investigations into his misconduct; the Supreme Court having directed President Nixon to comply with a judicial subpoena to turn over taped conversations; and the House Judiciary Committee having approved three articles of impeachment shortly before Nixon resigned.

In sharp contrast, few think that the acquittal of President Trump is a triumph for the Constitution. Instead, it reveals a different, disturbing lesson, about how the American political system—and the Constitution itself—might be fundamentally flawed.

Since the writing of the Constitution, three developments have substantially altered the effectiveness of impeachment as a check on presidential misconduct. The first is the rise of extreme partisanship, under which each party’s goal is frequently to vanquish the other and control as much of the federal government as possible. This aim is fundamentally incompatible with the system that James Madison designed, premised as it was on negotiation, compromise, and a variety of checking mechanisms to ensure that no branch or faction was beyond the reach of the Constitution or the law.

In 2018, this extreme partisanship and its detrimental effects were on full display at the Senate confirmation hearing for the then–Supreme Court nominee Brett Kavanaugh. Senators, by nearly the same vote as they acquitted Trump, expedited Kavanaugh’s confirmation and thwarted an investigation into his possible misconduct that would have delayed or derailed it. Similarly, in 2016, a slim majority of Republican senators held no hearings on President Barack Obama’s nomination of Merrick Garland to the Supreme Court, preserving the vacancy for President Trump to fill. In both of these events, Republican partisans sought only to prevail, and would not allow for an independent Senate review and investigation of the sort that Madison would have hoped for. Furthermore, the rabid partisanship of the Senate, which Senator Lisa Murkowski, Republican of Alaska, denounced in her statement explaining her vote to acquit Trump, is all the more disturbing because the thin majority of the Senate that stalled Garland, confirmed Kavanaugh, and voted to hear no witnesses and not to seek further document production in the Trump trial represents less than half of the American electorate.

The second is the rise of the internet and social media, which has upended the information ecosystem that democracy needs to survive. Madison was one of many Framers who believed that the intricate system of checks and balances in the Constitution depended on the public’s growing interest in being informed about government. He wrote, “I go on this great republican principle, that the people will have virtue and intelligence to select men of virtue and wisdom.” The proliferation of media outlets online enables people to consult news sources that hew to their opinions, but has not forced them to confront different opinions or search for any objective truth. This tendency, in turn, reinforces the extreme partisanship that pushes people back into their niche—and to so-called facts that are shaped by news sources rather than the events themselves.

The third development is the major change to the process for selecting senators. When the Framers created the Senate, they sought to insulate it from the vicissitudes of public opinion. To do so, they proposed that senators be selected by state legislators. This approach, however, rarely produced a Senate disposed to take the long view and to rise above petty partisanship. In 1913, the Seventeenth Amendment did away with the original scheme for selecting senators, and people have been voting directly for them ever since.

Shortly before he died, Justice Antonin Scalia lamented that change, saying the amendment had killed federalism, the constitutional ideal of the states and federal government keeping each other in check. Even if the late justice’s concern was hyperbolic, it is true that the Senate has since become more like the House, its members primarily attuned to the need for reelection and to follow the whims or attitudes of popular majorities. The fallout from these changes has been the erosion of the Senate’s independence from presidential and party or factional control.

Yet, partisanship, the rise of the internet and social media, and changes in Senate selection do not fully explain what happened in the Trump trial.

The president, since being acquitted, has shown how wrong Republican Senator Susan Collins was when she said he had “learned” from his impeachment. In fact, the president said she was wrong and denounced the “evil,” “corrupt,” “vicious,” “scum,” “sleazebag,” and “crooked” Democratic leaders, and the impeachment effort itself as a scam. In spite of the condemnation of 53 senators (including the first senator to vote to convict and remove from office a president of his own party), Trump insisted that his phone call with Ukrainian President Volodymyr Zelensky was “perfect.” He also began retaliating against those who’d raised concerns about him freezing aid to Ukraine and pressuring Zelensky to announce an investigation into Joe Biden, including dismissing Lieutenant Colonel Alexander Vindman and Vindman’s twin brother (who had no connection to the Ukraine scandal) and Ambassador Gordon Sondland. The president has unleashed his usual vitriol against senators who dared to vote to convict him for his misconduct in office. Republican senators, who largely voted to acquit the president, have stood mutely by while the president wreaks his revenge, including demanding that top Justice Department officials recommend a lesser sentence for his crony Roger Stone (which led four prosecutors to withdraw from the case in protest).

Such outrage, along with the prospect of a president emboldened to do as he pleases, demonstrates how ineffective the mechanism of impeachment is now. As Abbe Lowell, a former counsel for the House Democrats, put it just after the Senate acquitted President Bill Clinton, the most effective check on presidential misconduct was the pressure to resign, not impeachment. But that alternative to impeachment does not work with presidents who are unwilling to confess error and see no reason to leave office.

Without resignation as an option, and the resistance of the president’s party to his ouster, the prospect that the Constitution’s two-thirds threshold for conviction and removal will ever be met is nil. Each of the three presidential-impeachment trials in American history ended with acquittals, the first with an immensely unpopular president who may have bribed senators to acquit him, the second with a popular president whose party had the numbers to block his conviction, and the third for a president whose party dared not offend or oppose him. Impeachment, in brief, has yet to work against a president of the United States. Any president prone to misconduct can look at the pattern and see that as long as he can keep most, if not all, of his party’s senators in line, he is immune to conviction and removal from office. Future presidents will see the acquittals as license to do whatever they want.

The lesson in all this isn’t that the Constitution has recently broken so much as that its flaws, always present, have been fully revealed. The bar for removing a president is too high for American politics ever to clear, and party resistance to abandoning their own is too strong; the result is a virtually unrestrained executive. Without impeachment available as a meaningful check on presidential abuse of power, the only option left for holding a president accountable is the electoral process, the very one that 53 senators criticized President Trump for trying to rig. Americans have every reason to expect the president to cut deals with foreign interests to help his reelection and businesses and hurt his political foes.

Amid all this, public conversation has reached a nadir. Madison believed that civil discourse was everyone’s responsibility, that representative government could not work unless the people themselves took education and enlightenment seriously. Twenty years ago, when I testified as a joint witness at the House’s impeachment against President Clinton, I received a handful of notes and emails, most positive.

This time was different: Emulating the president in tone, hundreds of people sent me emails and letters calling me names, spewing profanity, condemning my education and me for being Jewish; many insinuated or made threats against me and my family. The hate mail proclaimed that I knew nothing about impeachment and should be fired.

The coarsening of public debate is one of this president’s many destructive legacies. He has spouted vitriol and hatred at millions of Americans whose offenses are telling the truth and daring to question him.

Yet, more is at stake in the next election than Trump remaining president or the truth. Voters must choose between two competing visions of the Constitution. A Trump loss this November will be an important step in restoring the Madisonian Constitution, with its aspirations for a virtuous and enlightened electorate, along with its safeguards against an executive who can do whatever he wants. A Trump victory would essentially replace Madison’s Constitution with Trump’s own vision, which equates his office with his own personal interests, and proclaims that he can do no wrong, that he may not be held accountable anyplace except where he chooses, and that he alone tells the truth. This would fulfill Madison’s nightmare, establishing the very thing the Framers shook off: tyranny.