In less than two months, the American experiment in constitutional self-government may hit the wall of history. Even if the disaster of a Trump presidency is averted, this fall’s presidential campaign suggests that the United States Constitution is gravely, perhaps terminally, ill.
Trumpism is the symptom, not the cause, of the malaise. I think we have for some time been living in the post-Constitution era. America’s fundamental law remains and will remain important as a source of litigation. But the nation seems to have turned away from a search of values in the Constitution, regarding it instead as a set of annoying rules.
A Trump victory would render the Constitution as toothless as the Statuto Albertino of 1848 after Mussolini’s March on Rome. That’s not because Trump proposes violating this or that provision; it is because, to him and his followers, the Constitution is simply nonexistent.
Trump’s most consistent and serious commitment is to the destruction of free expression. (Note that his response to the bombings in New York and New Jersey was to call for a rollback of the free press, on the grounds that “magazines” are somehow instructing the bombers.) In other areas, his program is torture, hostage taking, murder of innocent civilians, treaty repudiation, militarized borders, official embrace of Christianity, exclusion and surveillance of non-favored religious groups, an end to birthright citizenship, racial and religious profiling, violent and unrestrained law enforcement, and mass roundups and deportation.
No other serious political program in American history has been as openly contemptuous of the nation’s founding document, of its Bill of Rights, and of the Fourteenth Amendment’s guarantees of due process and equal protection.
Can those values survive four years of Trump? There’s not much reason to think that this own party will oppose anything he wants—the GOP leaders have already surrendered without a whimper. I suspect that he will find supporters within the bureaucracy, the intelligence community, federal law enforcement, and the American military. And Stanley Milgram’s “obedience to authority” experiment suggests that others, who know better, will simply stand aside as the toadies take over.
But even if America is spared President Trump, will the pathologies of the last year simply dissipate in a burst of national good feeling? Hardly. Trump was not a meteorite who has unexpectedly plunged to earth out of the uncharted depths of space; he is the predictable product of a sick system.
“Political correctness” is out of favor, so I won’t pretend that “both sides” bear responsibility. The corrosive attack on constitutional values has come, and continues to come, from the right. It first broke into the open in 1998, when a repudiated House majority tried to remove President Bill Clinton for minor offenses. It deepened in 2000, when the Supreme Court, by an exercise of lawless power, installed the President of their choice. It accelerated when the inadequate young president they installed responded to crisis with systematic lawlessness––detention without trial, a secret warrantless eavesdropping program, and institutionalized torture.
In the years since Barack Obama—with a majority of the vote––replaced Bush, the same forces, now in opposition, have simply refused to accept him as the nation’s legitimate leader. In control of Congress, they will not perform that body’s most basic duties––formulating a budget, tending to the national credit, filling vacant posts in the government—and, most shockingly, controlling the nation’s passage from peace to war. Now they have turned their attention to the Supreme Court, and are slowly crippling it in pursuit of partisan advantage.
Commentators are assiduously mainstreaming this political deviancy. “[W]e should not pretend that the Senate has some sort of constitutional duty to confirm a nominee, or even schedule a vote,” conservative Professor Josh Blackman of the University of the South Texas College of Law, assured readers of the National Review soon after Justice Antonin Scalia died. Fact-checker Glenn Kessler of The Washington Post conceded that it is a “matter of opinion” whether the Senate is duty-bound to consider a Supreme Court nominee—then, inexplicably, crowned his own opinion as “fact” and awarded Three Pinocchios (“Significant factual error and/or obvious contradictions”) to those whose opinions differ.
Of course, these worthies are right––if the Constitution is nothing but an aggregation of unrelated rules to be used by those who seek power—if the only mandatory provisions are those that explicitly say, “This provision imposes a duty on people to make it work realio trulio no kidding uh-huh baby pinky swear really not kidding, you hear me, Mitch?”
Under this reading, Congress has almost no “duties”—it must meet for one day every December, it must elect officers, it must keep a journal, and it must count the electoral votes every four years. There’s no “duty” to approve a presidential cabinet, or to fill vacancies in the military officer corps, or to appropriate funds to run the government.
This interpretation is a post-constitutional pathology. The Constitution imposes lots of obligations, and affirms many values, that are apparent to any open-hearted reader. Step away from its values, and it imposes almost none.
(The conservative aversion to actually governing, interestingly enough, is not in evidence in states that they control. Legislators in red states are eager to suppress the vote, regulate women’s fertility and sexuality, roll back LGBT gains, silence criticism of agriculture, gut collective-bargaining rights, dismantle higher education, and strip away academic freedom. And state leaders truly in a hurry are eager to call a “convention of the states” and scrap the Constitution altogether.)
It’s true that the Democratic side of the ledger has also succumbed to a certain slovenliness in its approach to the Constitution; as I wrote at the time, for example, the Obama administration’s excuses for not seeking authorization for the Libya intervention were as lame as anything the Bush White House produced. Current operations against ISIL in Syria and elsewhere have no shadow of authorization from Congress.
It is not justification, but simply description, to say that this kind of executive chicanery is inevitable if Congress refuses to do its duties. The government must keep running, and in a crisis, presidents will inevitably conclude that their plan is imperative. Congress has the power to say yea or nay to military force; but if it will not speak at all, presidents will act as they think best. And remember that the most consistent attacks on Obama as “weak” cite the one occasion on which he decided that military action actually did require Congressional approval.
Constitutional rot has spread from a feckless Congress to a desperate executive, and is now enfeebling the judiciary.
Whatever is taught in school, the Constitution never was (in James Russell Lowell’s phrase), “a machine that would go of itself;” what has made it work is a daily societal decision that we wish to live in a constitutional democracy. In 1942, Judge Learned Hand warned that “a society so riven that the spirit of moderation is gone, no court can save; that a society where that spirit flourishes, no court need save.”
The willingness to live by fundamental law has fled, and few seem to notice. It will not return, if at all, until as a society the United States finds a constitutional vision that is about more than power.
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