On Thursday, the Supreme Court met to consider whether Donald Trump, as president, would enjoy immunity from prosecution for trying to overturn the 2020 election. Even if the judges ultimately rule against Trump, liberals should not praise the Constitution as the greatest bulwark against him. In fact, this document nearly crippled our democracy for reasons that go beyond Trump, for reasons that long predate him and may even extend beyond him.
For years, whenever Mr. Trump threatened democratic principles, liberals turned to the Constitution for help, searching its text for tools to end his political career or at least contain his corruption. He was sued under the Constitution’s Emoluments Clause. He was impeached twice. Congress has voted to require Vice President Mike Pence to invoke the 25th Amendment to the Constitution, saying Trump is unfit to serve as president. Lawyers recently argued that states could use the 14th Amendment to remove Trump from the ballot because of his role in the January 6 attack.
All of these efforts are motivated by a worthy desire to hold Mr. Trump accountable for his actions. Each failed. As we head into the thick of the election campaign, we need to face a simple truth. The Constitution won’t protect us from Donald Trump. Rather, turning the page on this man and the politics he has fostered will require fundamental changes.
It’s not just that Trump wouldn’t have become president without the electoral college. Consider why previous efforts to use the Constitution to hold Trump accountable have failed. The impeachment process collapsed in the Senate because it disproportionately gives power to rural, conservative states. Not only was the Supreme Court able to keep Trump on the ballot in Colorado, but it was also able to narrow the circumstances in which disqualification applies. Because even though Republicans lost, they were able to appoint a majority of the judges. popular vote in seven of the past eight presidential elections.
For years, liberals have been reluctant, perhaps out of habit, to acknowledge these facts. While most countries view their instruments as rules for governing, rules that can become obsolete and can be reworked as needed, our politicians are deeply rooted in the Constitution. Everyday stories of American exceptionalism are told. This is a sacred document that, as Barack Obama once put it, “began an impossible experiment in American democracy” based on shared principles of equality, autonomy, and individual freedom.
In this Trump era, as polls show some Americans are moving away from common ideals, liberals are clinging even more tightly to the document as a symbol under threat.
For example, a year and a half ago, liberals were understandably outraged when Mr. Trump called for “abolishing” existing election rules. Rep. Don Beyer of Virginia called him “an enemy of the Constitution.” White House press secretary Andrew Bates declared that “attacking” “sacred” documents was “an abomination to the soul of our nation.” The problem is that these constitutional pledges of allegiance cannot replace actually convincing people of the importance of an inclusive democracy.
Rallying around the Constitution means accepting the very Constitution that causes these pathologies. That rule strengthens those who are indifferent to or opposed to the principle of one person, one vote. Ultimately, these rules smooth the path for the pro-Trump right to gain power without having to win a majority. And even if the president tries to overturn the election, they will throw up many obstacles to fulfilling their responsibilities.
The shock to the constitutional system that Mr. Trump represents did not begin and will not end with him. The best, and perhaps only, way to contain the politics around him is to reform the government so that it is more representative of the American people. The goal is to prevent authoritarians from regaining power without a majority and building powerful institutions with judges and officials who are deeply out of touch with the people. However, this requires major changes to the legal and political system, including the constitution itself.
We need new campaign finance laws and expanded voting rights. We will end the Senate filibuster, abolish the Electoral College, fight gerrymandering and partisan election interference, adopt multi-member House districts, and add new states like Washington, D.C. There is a need. The powers of the Senate need to be reduced, and perhaps toward stronger policies. A ceremonial “council of revision,” as Jamel Bouie proposed.
Such reforms would require countering the Supreme Court’s extreme power through measures such as term limits for judges and expanding the size of the court. And an easier amendment process would give Americans the power to update the system and incorporate new rights into the document, rather than relying solely on judges’ decisions.
There is no doubt that such a change seems politically unfeasible. But it would make sense for Americans concerned about the dangers posed by Trump to take such a comprehensive agenda seriously, and not just because many on the right are already working on their own constitutional reforms. .
Groups like the Conference of States (which counts Florida Governor Ron DeSantis as a vocal supporter) get 19 of the 34 states required by Article V of the Constitution to agree to hold a new constitutional convention. It was very successful. The state convention package includes potential changes, including giving “a simple majority of states” the power to “rescind any action by Congress, the President, or the executive branch,” and giving Republican officials the ability to object to any policy, regardless of policy. This includes the ability to override policies that We can enjoy tremendous support from the people. As David Posen of Columbia University Law School has written, the right is trying to make this second convention a reality in ways that ensure that state officials, also disproportionately Republicans, control the content of proposals and how votes proceed. I even figured out how to run it.
These efforts will continue even after Trump is no longer on the political stage. And as long as liberals refuse to confront what needs to be done to amend the Constitution, his supporters and groups like the National Conference will control the debate.
Now, Americans must make sure we don’t learn the wrong lessons from this moment. Mr. Trump could lose at the polls or be convicted in one of the four criminal cases he faces, including one that began this month in Manhattan. If he were to be held accountable, it would not be because the Constitution saved us, given all its ills.
Aziz Rana is a law professor at Boston University and author, most recently, of “Constitutional Bondage: How Americans Came to Idolize a Failed Document.”
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