Our Broken Constitution


In the despairing times after the Trump election, I remember being asked by multiple friends whether politics was permanently broken, and, if not, when it would start to improve. The tendency of liberals, I think, unlike conservatives, is to descend into sadness and depression and nihilism. (“So … did I get him? Is this all over?…No, I didn’t? Nothing matters? Absolutely nothing matters anymore?”). The problem is that even if those thoughts are true and those feelings are valid, they don’t help win elections.

Calls for blue states like California to secede from the Union would basically doom Democrats for another generation. Pinning our hopes on Trump’s impeachment distracts us from the fact the rot is much, much deeper than Trump (how much better would President Mike Pence be?). And following false prophets like Louise Mensch into the swamp of conspiracy is not an election-winning strategy (not to mention that her tabloid mentality and propensity for making false accusations will only discredit the left.)

So, when chatting casually about politics, I try to convince my friends to walk back from the ledge, even if I’m not fully convinced by my own arguments. As Josh Marshall put it, “Optimism isn’t principally an analysis of present reality. It’s an ethic. It is not based on denial or rosy thinking. It is a moral posture toward the world we find ourselves in.” If we’re not optimistic about our ability to win and make America better, then we will never win and America will only continue to decline.

Of course, I do find many arguments made from a mindset of despair to be persuasive. Representative of the genre are Jamelle Bouie’s essay, “It Will Get Worse”, David Frum’s essay, “How to Build an Autocracy”, and, predating Trump, Jeffrey Tobin’s essay, “Our Broken Constitution”.

Let me try to clarify and classify and systematize the arguments made by these and other essays. I think what makes it hard to evaluate the precariousness of our current position is that there are some factors that are long-standing and basically intrinsic to the Constitution (e.g., the inherent anti-majoritarianism of the Senate); others that are unique to “modern politics” (e.g., the racial politics of a now imperiled white majority); and yet others that are unique to Trump (e.g., the fact that he’s a narcissistic psychopath). A persuasive essay, like Frum’s, draws from all three sources but also has the effect of conflating them together.

I’d like to focus in this essay on the first group of arguments, concerning the flaws intrinsic to the American constitution and the American system of government. There are a few different strains of thought here.

One is that American government works well only if the people running it respect the spirit of the Constitution, as opposed to the mere letter. Frum writes about this eloquently. He notes that hedges on Trump’s power are both “customary and constitutional”. In other words, there is law and there is tradition. Unfortunately, the constitutional (law-based) checks are often weak, vague, and difficult to enforce. And the customary (tradition-based) ones are increasingly being ignored outright. Take, for instance, the Emoluments Clause. Frum explains,

You may hear much mention of the Emoluments Clause of the Constitution during Trump’s presidency:  “No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.”

But as written, this seems to present a number of loopholes. First, the clause applies only to the president himself, not to his family members. Second, it seems to govern benefits only from foreign governments and state-owned enterprises, not from private business entities. Third, Trump’s lawyers have argued that the clause applies only to gifts and titles, not to business transactions. Fourth, what does “the Consent of Congress” mean? If Congress is apprised of an apparent emolument, and declines to do anything about it, does that qualify as consent? Finally, how is this clause enforced? Could someone take President Trump to court and demand some kind of injunction? Who? How? Will the courts grant standing? The clause seems to presume an active Congress and a vigilant public. What if those are lacking?

In the past, if the Constitution has not saved us from bad behavior, then the “checks and balances” borne of “custom” have. These include the “ethics and public spirit” of the president himself, the powers invested in Congress through the system of checks and balances, the independence of the judiciary, the “traditions of independence and professionalism that prevail within the federal law-enforcement apparatus, and within the civil service more generally”, public pressure and media scrutiny, and so on.

But these are not statutory checks – they depend on good behavior, and as such are easily broken by an authoritarian like Trump. To a large extent, we are relying on the good will of the president not to enrich himself, instead of the Emoluments clause to provide a legal check on his behavior. Unfortunately, Trump has no good will. And, the legal check also depends on its own set of actors to play their parts. In this case, Congress is unwilling to check Trump because they are afraid of right-wing pressure and they value passing their revanchist agenda over maintaining a well-functioning, non-corrupt government.

To make a long story short, the Constitutional checks against Trump are, in theory, inviolable but narrow in scope. And the customary checks against Trump are broad in scope but violable. And the rules cannot function on their own – they need people to fulfill their responsibilities as well.

It reminds me of this Paul Krugman post about financial reform and the Dodd-Frank bill. There are two complementary ways of checking financial institutions. One is to enshrine narrow but strict laws and regulations, like “your capital ratio must be less than 8%”. The other is to give regulators the power to enforce a more meaningful but also more vague mandate, one that cannot be easily codified into law. (For instance, the Fed “promotes the safety and soundness of the banking system”). Each method, on its own, is susceptible to evasion. Creative lawyers can find loopholes in strict regulations (e.g., interpreting “capital ratio” differently), and regulations often fail to keep pace with innovation; conversely, regulators are often captured by the entities they’re supposed to regulate and, as Krugman notes, “you can’t count on always having smart, well-intentioned people doing the regulating”.

In the case of checking Trump’s power, as opposed to financial power, the same problem has happened – we don’t have smart, well-intentioned people doing the regulating, and the laws/regulations themselves have been outpaced by Trump’s own political “innovation”.

Now let’s turn to another critique of the Constitution – not that it’s weak and relies on good behavior, but instead that it’s perniciously anti-democratic. This critique predates Trump, of course. Here’s Jeffrey Toobin:

Progressive critics of the Constitution object to the compromises that favored the states’ rights and the élitist side of the debate. “The process that produced the Senate is understandable,” Levinson told me, “but the end result is indefensible.” The distortion created by small states having an equal number of senators has dramatically worsened over the centuries. In 1787, when the Constitution was drafted, the largest state, Virginia, had about eleven times as many people as the smallest, Delaware. Today, California has roughly seventy times more people than Wyoming. To Levinson, the creation of the Senate was the original sin of the Constitution. The most obvious offense was that the power reserved to the slave states insured the survival of slavery. It took the Civil War to end it, and the Thirteenth, Fourteenth, and Fifteenth Amendments to overrule the three-fifths compromise.

The Senate continued to reflect its anti-democratic structure long after the Civil War. Through most of its history, it has been a graveyard for legislation, even after the Seventeenth Amendment, ratified in 1913, established the direct election of senators. Its primary function has been to stop bills, which are often supported by a popularly elected President and House members, from becoming law. In theory, the senatorial veto is available to both political parties, but a Senate in which less populated states wield disproportionate influence is fundamentally conservative in nature. In simple terms, in a world where progressives want government to change things and conservatives favor the status quo, a legislative body that makes legislating difficult will be a conservative force. The Senate blocked ratification of the League of Nations treaty after the First World War, civil-rights laws after the Second World War, and the Clinton health-care reform in the nineteen-nineties. “You’ve basically always had two parties in the country where one wants change and the other is more supportive of the status quo,” Noah Feldman, a professor at Harvard Law School, said. “The Senate is an institution that stops change. That’s how it’s designed, and that is always going to hurt that party that wants change, the activist party. Today, that’s the Democrats.”

And it’s not just the Senate that is anti-democratic, as we have learned in recent years. In 2012, Democrats won more than 1.4 million votes in House elections, but lost the House 234-201. As Sam Wang wrote in the New York Times,

We can quantify [its] effect using three different methods. First, Democrats would have had to win the popular vote by 7 percentage points to take control of the House the way that districts are now (assuming that votes shifted by a similar percentage across all districts). That’s an 8-point increase over what they would have had to do in 2010, and a margin that happens in only about one-third of Congressional elections.

(That remarkable fact explains why Nate Silver wrote, “Without districting/gerrymandering problems, Dems would be clear favorites to win the House in 2018. With them, it’s a closer call.”)

And, of course, there’s the Electoral College, which has screwed over Democrats twice in the last five elections; geographical clustering of voters, which ensures that any district-based system will “waste” many Democratic votes; the anti-majoritarianism of Congressional procedures, such as the filibuster, secret holds, etc.

Finally, the third critique of the Constitution, which is related to but distinct from the first two, is that the Constitution is not only weak but also vague, and this vagueness creates a great deal of power in the interpreting body: the Supreme Court. If the Court decides to act in anti-majoritarian and illiberal ways, it can stifle democracy and tilt power towards its preferred party. Justice Steven Breyer talks about his judicial philosophy of “active liberty” – the idea that the Supreme Court should encourage “citizen participation in shaping government and its laws”. Much of what the Supreme Court has done over the last 40 years (and especially the last 10 years) has run counter to these inclinations. Witness the Shelby County decision, Citizens United (and the rest of the campaign finance decisions), the court’s willingness to tolerate partisan gerrymandering, the impending destruction of public sector unions, etc.

Jeffrey Toobin asked “whether the pervasive dysfunction in Washington is in spite of the Constitution or because of it”. If we accept the premise, the natural follow-up is whether our country is broken because of our Constitution. Are the Constitution’s problems so far-reaching and so insurmountable that American government is doomed for the foreseeable future to be a right-wing plutocracy? This is the question my friends were asking after November 8th, and it’s a question that I have yet to satisfactorily answer.

We spend a lot of time talking, in blogs and newspapers and magazines, about Bernie vs. Hillary, neoliberalism and the DLC, the special election in Georgia, Trump’s latest tweets, Paul Ryan’s spinelessness, and a host of other topics of current interest. But all of these issues will fade from memory, and all of these actors will eventually leave the political stage and be replaced by others. The Constitution, on the other hand, will be with us forever. I am willing to wait 4-8 years for the current Trumpist era to end and be replaced by something more rational. But I am not willing to suffer if Trump is only the beginning of our problems and not the end; if he is the symptom of a chronically sick government instead of the apotheosis of modern right-wing extremism. As Democrats, we can fine tune our electoral strategies and allocation of money and selection of candidates and primary processes. We cannot, however, overcome a rigged and fatally flawed system.

I am currently in the camp of optimism – in the sense of the “ethic” endorsed by Josh Marshall. I hope that the Democrats will take back the House in 2018 (although I’m not sure I believe that), and I hope that popular pressure will curtail the worst excesses of the Republican legislative agenda. But I also feel that we as a nation are at an extremely precarious moment in history. (And I say that fully understanding our tendency to magnify the importance of the present.) If we uncover lawbreaking and no one cares, if we protest and our shouts are unheard, if we vote and our votes don’t matter – in other words, if the Resistance does its utmost but ultimately fails – then perhaps all of the paeans to the “most miraculous political document ever conceived, our Constitution” will have been a lie.


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