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.

A Constitution Informed by Social Change

By David K. Shipler

            If you spend time reading the Supreme Court’s majority and dissenting opinions in the landmark same-sex marriage case, a transcendent principle jumps out at you. It has little to do with the definition of marriage or the widening acceptance of homosexuality. Rather, it is the notion that society should be alive to its own injustices, even those unseen in the age when solemn constitutional texts were written. Later—nearly 150 years later in this instance—practices that were once acceptable emerge as violations of the rights set down at a very different time.

This is the crux of the ideological dispute between conservatives and liberals on the Court, and it is articulated in this case with unusual clarity. The conservative dissenters define liberty in the narrowest terms—to Clarence Thomas it means freedom from physical restraint and imprisonment, nothing more.

To Antonin Scalia, the clock simply has to be turned back to the date of the post-Civil War Fourteenth Amendment, whose clauses banned the states from denying any person “the equal protection of the laws” or depriving anyone “of life, liberty, or property, without due process of law.” Those were the provisions that the Supreme Court found were being violated by denying same-sex couples the right to marry.

Scalia scoffed. “When the Fourteenth Amendment was ratified in 1868,” he wrote, “every state limited marriage to one man and one woman, and no one doubted the constitutionality of doing so.” Case closed.

Compare that with Anthony Kennedy’s fluid view of liberty in his opinion for the slim 5-4 majority. Kennedy is not easily categorized as liberal or conservative; he is often a swing vote. Here, however, he effectively endorses the liberal concept of a living Constitution by emphasizing its place in a shifting world.