To study and believe in a constitution—to give political allegiance to it as a nation’s highest law—requires a commitment to procedure. If the right rules are followed, if the procedures are fair, then the result, however regrettable, must be legitimate. I’ve been teaching and studying the U.S. Constitution for a quarter-century, and events have sometimes tugged at my procedural head and my substantive heart in different directions.
The impeachment of Bill Clinton, for example, struck me as a ludicrous comic-opera coup d’etat—but the House and Senate followed constitutional forms scrupulously, and had Clinton been removed he would have had to go. George Bush’s war in Iraq seemed at best reckless and at worst insane—but Bush obtained approval from Congress, as required by Article I, and the war became the nation’s war, fought in some way with my consent as a citizen. People put bumper stickers on their cars—pictures of Bush saying, “He’s not my president.” I thought that was untrue to the American system.
But procedure can carry us only so far. The Constitution does not exist on its own, as a kind of suprahuman imperative; it was created over time, and is followed today, to “form a more perfect union, establish justice, insure domestic tranquility, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity.” When “we the people” use it for these goals, mistakes may do harm, but they are legitimately the people’s acts.
The Constitution is not, however, as Justice Robert Jackson once famously wrote, “a suicide pact.” That phrase is usually used to suggest that government can legitimately overstep its bounds in times of emergency. But it also refers, I think, to moments when “we the people” pour a national libation of Kool-Aid and demand that everybody drink.
The election of Donald Trump was, in procedural terms, scrupulously fair. I hold no dark suspicions of altered vote counts or intimidation at the polls. We may wish the Voting Rights Act had not been gutted by the Court; but the election of 2016 followed the law of 2016. Clearly a large proportion of American citizens—not as many as voted for Hillary Clinton, but still, under our strange system, enough—wanted Trump as their president and now hope that he fulfills the loud promises he repeatedly made to the country.
But those promises are the problem. Donald Trump ran on a platform of relentless, thoroughgoing rejection of the Constitution itself, and its underlying principle of democratic self-government and individual rights. True, he never endorsed quartering of troops in private homes in time of peace, but aside from that there is hardly a provision of the Bill of Rights or later amendments he did not explicitly promise to override, from First Amendment freedom of the press and of religion to Fourth Amendment freedom from “unreasonable searches and seizures” to Sixth Amendment right to counsel to Fourteenth Amendment birthright citizenship and Equal Protection and Fifteenth Amendment voting rights.
Like an admissions officer at Trump University, he offered Americans a bag of magic beans and asked them in exchange to hand over their rights and their form of government.
Smiling, nearly 60 million complied.
I deny their right to give Trump my rights or those of others who cannot defend themselves. No result is legitimate that threatens the Constitution its very promise of the “blessings of liberty.” No transient plurality, no matter how angry, has the power to strip minorities of equal status and protection; no mass of voters, no matter how frightened, has the power to vote away the democratic future of their children and their children’s children.
American national leaders gain their legitimacy by competing in compliance with not merely the outward forms but the clear values of our Constitution—equal dignity, religious freedom and tolerance, open deliberation, and the rule of law. These values don’t bind Donald Trump; norms of decency do not apply; he shrugs off the very burden of fact itself. Like dictators of the Old World, he uses his mass media power to lie, to insult, to strip individuals of their dignity, to commit the grossest libels of religious and national groups, and to encourage persecution, torture, and public violence. He actively campaigns against any notions of racial, religious, and sexual equality. He threatens those who oppose him with the unchecked power of the state.
He is, in other words, a figure out of authoritarian politics, not the American tradition; and a democratic constitution that empowers such a leader has misfired badly.
I have written before of the decay that had set in among American democratic norms before Trump came along to hijack them—of a political system so hardened in hatred that it has become unable to provide in orderly fashion for the nation’s finances, that permits legislative bodies to hobble the courts, that evades the vital questions of war and peace the Constitution was created to address, that hides in plain sight the growth of mass surveillance and toxic secrecy in government. And I’ve noted that never before in American history has the nation fought a “war” that lasted 15 years, much less one against an unnamed enemy who can never be located entirely or fully defeated. Over a decade and a half of no-holds-barred politics and “enemy-within” panic, Americans drove their democracy as if it were an automobile with an oil leak, until the engine at last has seized up and the vehicle has crashed.
The role of a professorial figure in crisis is to cluck reassuringly, note that something similar happened during the Taylor administration, and remind citizens that America is a favored nation and all will be well as we muddle through under God’s beneficent providence. But there is no evidence that any of that is true. The Constitution is broken, and I don’t know how, or whether, it will be fixed.
But I know this as well: Trump was elected President on November 8.
But he is not my president and he never will be.
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