The Constitutional Stress Test

By David K. Shipler

                For a country ostensibly devoted to the rule of law and worshipful toward its Constitution, the United States is in a peculiar state of dishonoring both. It has a president and a supposedly conservative political party that brushes away the ingenious checks and balances that the Framers devised to restrain authority. It is politicizing its judiciary and entangling its legislature in partisan stalemates while its executive branch evades, ignores, or derides the other branches of government.

This could have more than a transitory impact on the dynamics of the democratic system. In resisting the constitutional duty of Congress to monitor and limit executive behavior, Donald Trump and his acolytes are undermining a keystone of constitutional governance. The damage might turn out to be more serious than a phone call with the president of Ukraine, and more lasting than an impeachment inquiry. Conceivably, once the judicial branch gets involved, a “conservative” Supreme Court could codify curbs on the legislature’s authority to subpoena, question, and investigate administration officials. Such cases are now being litigated.

How is Congress to enforce its orders? By declaring recalcitrant officials in “inherent contempt” and seeking to have them fined or arrested? That would be an extraordinary step, and nobody seems to know how it would be carried out. Otherwise, though, Congress is defied with impunity, and the system is impaired. The smooth running of government would have to be discussed in the past tense, when it relied on a basic respect for the norms of balance among the branches, when it did not conduct debates across an unyielding divide of political tribalism.

The Supreme Court, which has grown increasingly partisan, cannot be depended on. It has already shown its hand by tilting toward executive power and away from the legislature. It allowed Trump to deflect Pentagon construction funds to a border wall, which was expressly denied by Congress. It permitted Trump’s dramatic, unlegislated change in asylum procedures to take effect pending litigation, requiring migrants to seek asylum a country they were passing through first, before the US.

Justice Neil Gorsuch, Trump’s appointee, has hailed the separation of powers as the centerpiece of constitutional democracy. But he has a skewed view of it. In speeches and essays in connection with his new book, the examples he has given of its violation point to his hostility toward agencies in the executive branch that must, in a complex and fast-changing world, make regulations to implement the laws that Congress passes. Gorsuch’s thinking looks less like an embrace of checks and balances than a radical, “conservative” rationalization for curtailing the scope of government overall.

We need to put “conservative” in quotes because it is not clear what conservatives want to conserve. Not the robust separation of powers, certainly—unless a “progressive” like Barack Obama is in the White House, in which case a Republican-controlled Congress simply obstructs, even against the president’s constitutional duty to nominate judges and justices. Not the orderly due process of implementing laws with finely tuned regulations on the environment, worker protections, pharmaceutical safety, and the like, which Trump has tried to dismantle not with considered legislation but with the flick of his pen. 

“All men having power ought to be distrusted to a certain degree,” James Madison told the Constitutional Convention in 1787. He sure got it right. The separation of powers was an answer—necessary but not sufficient. As we are seeing now, the mechanism works brilliantly only if lubricated by broad commitment.

Teaching university students in Moscow more than forty years ago, the visiting historian Robert Kelley tried to explain America by saying that if the United States had a state religion, it would be constitutional democracy. He didn’t think the young Soviet citizens quite understood, but Americans would have. Whatever disputes and scandals and injustices had inflicted our republic, we had found common ground in the revered gospel of the Constitution and its prescription for guiding a turbulent, pluralistic society.

Trumpism has eroded that common ground. When a president acts as if he is equivalent to the state and thinks that attacks on him are attacks on the nation, he naturally sees treason behind every criticism:

The press, protected by the First Amendment, is “the enemy of the people” (borrowing Stalin’s formulation to condemn the defendant to imprisonment or death).

The whistle blower’s source on Ukraine, protected by law, is “close to a spy” who should be dealt with the way “we used to do in the old days when we were smart.” (One commentator thought he was alluding to being drawn and quartered, as under King George III.)

The impeachment inquiry is a coup.

The chairman of a House committee, following the Constitution’s mandate to hold the executive accountable, is a traitor who should be arrested.

Impeachment, the Constitution’s remedy for “high crimes and misdemeanors,” would ignite “civil war.” (Is this Trump’s dark, demented call to his armed supplicants?)

It would be frightening enough if these were the rantings of a deranged Mafia boss. It would be deeply worrying if they were the frantic, panicky threats of a lone, mentally disturbed president, as they  are. But they are highly dangerous because they find resonance with enough Americans to bring into question the citizenry’s support for the country’s orderly constitutional principles. Our schools are obviously failing to teach new generations the values and principles of the constitutional order.

                “Our Constitution was made only for a moral and religious people,” said John Adams. “It is wholly inadequate to the government of any other.”

                Putting the concern in a secular way, Judge Learned Hand in 1944 declared, “I often wonder whether we do not rest our hopes too much upon constitutions, upon law, and upon courts. These are false hopes, believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it. While it lies there it needs no constitution, no law, no courts to save it.”