The Dying Constitution, Part II

 

By David K. Shipler

See Part I Here 

                Like a broken clock that tells the right time twice a day, former President Donald Trump’s recent call for the Constitution to be terminated was a fleeting moment of honesty. He never honored the Constitution in practice, despite his oath to “preserve, protect, and defend” it. He sought to undermine its foundational separation of powers, and of course its mechanism of electoral democracy.

                Still raging and lying about the 2020 election, he wrote in early December, “A Massive Fraud [sic] of this type and magnitude allows for the termination of all rules, regulations, and articles, even those found in the Constitution.” His post appeared on his media platform, Truth Social, whose title aptly echoes the paradoxical name the Soviet Communist Party gave to its newspaper: “Truth” (Pravda in Russian). Need we cite Orwell yet again?

                This prominent a dismissal of the Constitution was a break from a long, modern American tradition. By and large, all sides in the most acrimonious debates ritually cite the document in reverence. They interpret it variously to suit their own arguments, to be sure, sometimes with convoluted sophistry. But they rarely hope to cast it aside. Even the January 6 rioters hailed the Constitution as they violated it by storming the Capitol to disrupt the sacred process of counting Electoral College votes.

                So, what is the significance of Trump’s remark? He has been sneered at for years whenever he utters absurdities, with much of the public thinking that he has finally crossed the line into a territory of his own demise. But for millions of his spellbound supporters, that line is as imaginary as the horizon, receding as he approaches it.

                After his comment on “termination,” only a bare majority (51 percent) of registered voters polled by Quinnipiac University said it disqualified him from running again for president. A substantial 40 percent said it was not disqualifying. The figures among Republicans were troubling: Disqualified—just 17 percent. Not disqualified—72 percent. Democrats, predictably, were the opposite: 86 percent said he was disqualified, 12 percent said not disqualified.

      

                Is this simply a matter of tribal politics? Of misplaced hero worship? Or does it reveal something deeper, an eroding respect for the Constitution as a bulwark of freedom and a manual of pluralistic liberty? If a new constitutional convention were held today, what kind of document would emerge?

Would white supremacists find their seats through the Republican Party? Would freedom of the press (“enemies of the people,” according to Trump) be abandoned? Would adverse speech be outlawed? Would state-sponsored religion be codified? Would voting rights be curtailed? Would the three branches’ balance of power be tilted one way or another? Would due process, the right to counsel, the right against self-incrimination, the right of security against unreasonable search and seizure, equal protection under law, and the constitutional building blocks of racial justice survive? It’s hard to be confident.

No longer is the Republican Party a dependable defender of the constitutional system. Even after some losses in the mid-terms by their election-denying candidates, most leading Republicans reacted to Trump’s “termination” demand with silence or equivocation, hardly the way to preserve a functioning democracy. They still fear crossing Trump and losing primaries.

Republican officeholders continue riding the currents of popular discomfort with the hurly burly of pluralistic politics. The grievances he manipulates will surely survive him: impatience with the cacophony of multiple voices, distaste for “other” Americans who are not white or Christian or heterosexual, resentment toward experts who appear condescending, a sense of alienation and powerlessness against the bigness of governmental and corporate and academic authority. 

Dragging the Constitution into raw politics is nothing new. Nor is the American reflex defending individual autonomy, which has been an asset as a deep aversion to autocratic government. Yet individualism has also been mobilized against the welfare of others, fueling an imperious social and religious agenda on the right. If the Constitution were read to permit all citizens to do whatever suits them, it would be deemed a threat to decent order. That would spell its death as a vibrant set of principles just as surely as if its protections are diluted by excessive judges and legislators. The Constitution stands in the central square of liberty and order, a ground that is eroding.

In every country where freedom has been threatened, the alarmists are usually a small minority, the activists only a fraction of the population. They might eventually mobilize the broader conscience of their nation, but initially they tower above the crowd, figures against the sky. They are inevitably vilified and ridiculed and demonized, as they are now by the extremists who have captured the Republican Party.

Once upon a time, the invasion of the Capitol would have ignited outrage across the full range of both major political parties. Liz Cheney would have been the darling of rock-ribbed conservative Republicans instead of the villain swamped in a primary by Wyoming voters who were unmoved by her lonely defense of constitutional democracy. This is not such a time.

The fragility of a system built on words and operated on shared values was understood by the fifty-five white men who labored, bargained, and sweated through the steaming Philadelphia summer of 1787. They carried parochial and territorial interests into Independence Hall, and they were far from flawless. Some were slaveholders. All were privileged. Their number excluded women and Blacks, and so were radically unrepresentative. Their debates were tense, and their nerves were edgy.

Yet they managed a set of principles larger than themselves, transcending their personal foibles and self-serving concerns. That remarkable achievement by imperfect human beings is often blanked out by those at each extreme of today’s political spectrum.

On the right, the Framers are seen as god-like oracles to justify the pinched “originalism” that narrows the Constitution’s empowerment of individual liberty and practically denies its application to evolving society. On the left, the Framers are denigrated for their demography, and for their unseemly compromises with Southern slave states to win ratification of the controversial document.

When either extreme is blind to the majesty of the result, when the right diminishes its scope and the left discounts its universality, the Constitution’s viability flags. Among all the damages that Trump has caused this beloved country, this latest can become the most sinister—unless decisively repudiated.

The Constitution is only alive in a stormy society that uses it wisely. As a piece of parchment, it is much like the nautical chart in the poet Philip Booth’s hard and luminous account of sailing in fog. Not only must the depths and reefs marked on paper be observed, he writes, but also the “set of tide, lost buoys, and breakers’ noise on shore where no shore was.” Booth's final line, a caution to the sailor, also speaks to those who love the United States Constitution: “The chart is not the sea.”