deference The Constitution, as Trump’s depredations make clear, is the indispensable foundation of American democracy. But deference is different from reverence. Constitution Day 2022 came with more reason to be frustrated about the flaws in our national charter than at any time in generations.
The occasion underscored two related paradoxes of the Trump era that are likely to shape our politics long after Trump’s shadow has passed.
First, Trump is properly seen as a constitutional threat, but from a progressive perspective, many of the most offensive features of his tenure did not challenge the Constitution. Instead, they grew directly out of his most problematic provisions. He was in office in the first place because the presidency is chosen by the Electoral College and not by 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 power of absolute pardon for manifestly self-serving reasons. In short, Trump may be an enemy of the Constitution, but he is also the president who most zealously exploited its flaws.
That leads to the second paradox. Anyone who is not a Trump supporter duly laments the breakdown of the constitutional consensus that allows his supporters to tolerate or celebrate his electoral denial, along with other efforts to insulate themselves from the rule of law. In the long run, however, the most vigorous challenge to the constitutional consensus is likely to come from the left, from believers in activist government.
Correcting or circumventing what progressives reasonably perceive to be the Constitution’s weaknesses, in fact, seems likely to be the pre-eminently liberal goal of the next generation. Progress on issues ranging from climate change to ensuring that tech giants act in the public interest will depend on creating a new constitutional consensus. Trying to put more sympathetic judges on the Supreme Court is not likely to be an entirely adequate remedy. There are more fundamental challenges built into the document itself, notably the outsized power it gives to states, at a time when the most pressing problems and most credible remedies are national in character.
To be clear, there is much that is wonderful and enduring about the Constitution. Things that are weak could be corrected with amendments that would easily attract majority support from a national electorate. In addition to the list above (altering or abolishing the Electoral College, term limits for the Court, creating some check on abuse of pardon authority), there are other obvious goals. A constitutional overhaul would clean up the Second Amendment’s infuriatingly murky language to clarify whether effective gun control is allowed if the guns have nothing to do with a “well-regulated militia.”
Here, however, is where the breakdown of constitutional consensus becomes potentially climactic, as it did during the Civil War and threatened to do in the New Deal. Popularity or not, most of those amendments would be opposed by the Conservatives, which, under the terms of the existing Constitution, means they probably wouldn’t pass. Three-fourths of the states are needed to pass an amendment, a provision that gives many small, conservative states grossly disproportionate power over the nation’s destiny.
This is not a new problem, but it is one that threatens to reach a breaking point. Political scientist Norman Ornstein has popularized a striking statistic, one that is validated by demographic experts. By 2040, 70 percent of Americans will live in just 15 states. That means 30 percent of the population, coming from less diverse and more conservative places, will elect 70 senators. Already each senator from Wyoming, the least populous state, wields his power on behalf of fewer than 600,000 people, while each senator from California, the most populous, represents about 40 million. This distortion of democracy, already difficult to defend, could become the defining feature of national life.
This distortion, much more than Trump’s hooliganism, is likely to be the source of a true constitutional crisis in the years to come.
But isn’t this exactly what the Founders had in mind, with their conviction that the country was a union of states that retained broad sovereignty? One answer is that the current conflicts plaguing American democracy may not be what they wanted at all. The great concern of the editors was to create a system of government capable of self-criticism and self-correction. Various features of the Constitution now interfere with that ability.
Another answer, however, is: Who cares what they thought back then? The Constitution was written at a time when states were in fact foundational, a central part of people’s identity and way of life. This has not been true for almost a century, as both the national government and national identity have grown stronger. States remain essential administrative units. But the rural conservative voter in California, who had more Trump voters than any state even as he lost it by nearly 30 points, has more in common politically with a rural conservative from South Dakota than he does with urban progressives in New York or San Francisco. Francisco.
The most effective leaders have not adhered to constitutional understandings that have been superseded by new moral imperatives. Abraham Lincoln used the exigencies of war to eradicate slavery, even though slavery up to that point had been considered a protected constitutional right. “By general law, life other the limb must be protected; however, a limb must often 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 the otherwise unconstitutional measures could become legal, 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?
History 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 delivered his Constitution Day address this year at Brigham Young University) wrote in the past year “The Broken Constitution: Lincoln, Slavery, and the Refounding of America” that Lincoln did not so much save the Constitution as “something more dramatic and more extreme: the frank rupture and frank reconstruction of the whole order of union, rights, constitution and liberty”.
But there are other short routes of violent rupture to survive those moments, like now, when the Constitution no longer reflects the imperatives of the moment. One such way is when clever improvisation creates a new consensus. The Supreme Court struck down much of FDR’s initial program, but the central assumption of the New Deal prevailed, that we live in a national economy with a strong and responsive national government, aided by a radically new understanding of the interstate commerce clause. Another way to survive is good luck. In the Cold War, presidents had (and still have) a power never contemplated in the Constitution: the ability to blow up the world with nuclear bombs at their command, in minutes, without the approval of Congress or anyone else.
Conflict, improvisation, good luck: all three will probably be necessary for the country to survive the coming constitutional showdown. If it succeeds, we may one day go back to not paying much attention to Constitution Day.