BTRTN: Catch 1776... How Will We Repair our Democracy When It's So Hard to Fix the Constitution?

Trump, McConnell, and Barr are taking a wrecking ball to our Constitution and to the customs and traditions that enable our democracy to function. The fact that they have been able to succeed in their mission suggests that dramatic changes must be made to existing law and to the Constitution itself. Steve worries that it is just too hard to make the changes that must be made to save our democracy.

For a while there, I would put on a brave face and assuredly opine that the United States of America could survive a single term of Donald Trump as President, although I would hasten to add that a second term would likely cause irreparable damage.

That, however, was before the Republicans had finished assembling the troika of imperialists determined to re-introduce monarchy to America in the original George III form, a version devoid of the endearing understatement and benign inefficacy we associate with Prince Charles and Masterpiece Theater.   

No, in this remake, Donald Trump, Mitch McConnell, and William Barr are taking a quiet sledgehammer to our system of government, and still have another eighteen months to finish their, uh, crowning achievement. In crushing a wide array of historic customs and traditions, as well as openly defying the separation of powers, they have created a new model of executive royalty that, if allowed to stand, future occupants of the White House would be foolish to relinquish voluntarily. The Presidency is almost dead, long live the King.

Why wouldn’t every future President order the Department of Justice to investigate political opponents in an effort to destroy the opposition party? Why would any Senate Majority Leader ever allow a Supreme Court nominee of the opposing party ever go for a vote before the Senate? Why would any Attorney General ever allow the Executive Branch to be investigated by Congress? The Republican Party is making a run at monarchy while they are in a position to do so. Clearly, one muses, they must be a smidge concerned about the payback they must expect if Democrats can wrest back power? 

Of course Republicans are not the least bit worried. For one thing, they are now stifling voting rights while inviting Russians to pervert our electoral process, all to the purpose of permanently retaining power. For another, they know if Democrats were to gain power, they would observe Constitutional law, custom, and tradition. What naïve weaklings!

Here’s how bad it is: I consider myself something of an idealist, certainly a patriot, and a deep believer in Constitutional government… and I will be supremely pissed off if some future Democratic Senate Majority leader ever allowed a Republican President to appoint a Supreme Court justice. Mitch McConnell showed us what it means to play dirty. Why would Democrats ever be stupid enough to play clean?

That is the sad reality: now that the Republicans have so baldly placed self-preservation, greed, and power ahead of country, idealistic Democrats feel a need to fight fire with fire. And if, as a result, the parties simply take turns bulldozing the Constitution, it will lie mangled beyond recognition or repair, an empty, ineffectual symbol that is invoked when convenient and torpedoed when not.  Surely, then, we say goodbye to the democracy that our forebears cared for, fought for, and died for.

In fact, the only way that the United States will ever find its way back to its full Constitutional moorings is if we dramatically strengthen the Constitution and our laws, so that the type of excess, overreach, and brazen illegality of the Trump administration can be much more clearly outlawed, effectively prosecuted, and rapidly remedied in the future. 

It would take a battery of new laws and constitutional amendments to achieve this. One example: the only way we avoid another McConnell sandbagging a Supreme Court nominee is a law requiring that Supreme Court nominees be voted upon by the full Senate within 60 days of their nomination and approved with a simple majority vote. We’d need a law to change the structure of our government so that the Department of Justice does not report to the President. It would be necessary to pass laws banning gerrymandering. We would probably need a constitutional amendment to eliminate the Electoral College. We should introduce laws obligating Presidential candidates to release their tax returns, and require strict adherence to the Emoluments Clause, defining penalties for non-compliance.

And that is where we come to our true constitutional crisis. 

As wise as the Founding Fathers were, they did not anticipate that an utterly corrupt individual would attain the Presidency and then be insulated from impeachment by an equally corrupt political party with a greater interest in maintaining power than in preserving a government of, by, and for the people. 

Perhaps because they did not anticipate how quickly and thoroughly their constitutional government could be compromised by malevolent actors, the Founding Fathers made it very hard to amend the Constitution. Even worse – if that’s possible – is that the very remedy that they provided to amend the constitution itself has an inherent political bias. The process for amending the Constitution inherently favors citizens of small states, which, in aggregate, lean in one political direction.

Let’s make this concrete with the painful example of the Electoral College. 

Twice in the last five presidential elections, the candidate who won the popular vote lost the Presidency due to the Electoral College. In a nation that claims to be governed by an overarching commitment to the concept of “one person, one vote,” that philosophical belief has been actually realized only 60% of the time in this century. Imagine the red hot ire we’d see in our voting population if, say, our Instagram feeds were only available for fourteen hours a day, or we were limited to viewing only six episodes of Game of Thrones.

Let’s be clear: in both 2000 and 2016, a Republican was elevated to the White House over a Democrat who had won the popular vote. This is not an equal opportunity flaw. It is a baked-in bias against large states and the more progressive and liberal constituencies found there.

The Electoral College was created in part because the Founding Fathers did not trust the direct vote of the population at large with the sophisticated task of selecting the President. It was instituted so that the general population would merely elect wise, informed, educated representatives who were aligned with a political party. In its inception, electors were accorded considerable latitude in casting their votes. Initially, each elector was allowed to cast two votes, without categorizing one as a candidate for “President,” and the other for “Vice President.” Electors had the power to overrule the popular vote. They could vote for an alternative choice if, for example, they felt that their party’s candidate was grievously flawed, grossly under-qualified, or inclined to launch projectile Twitter tirades during state visits to long-standing allies.

Over time, however, this core purpose of the Electoral College was undercut by increasing requirements that the electors strictly adhere to the will of the people.

Despite the diminution of its raison d'être, the Electoral College remained intact, even though its design was inherently at odds with “one person, one vote.” In virtually every state, the candidate who wins the popular vote wins all of the state’s electors. This results in the nullification of huge numbers of voters. In 2016, Hillary Clinton won California by four million votes, but lost in the remainder of the country by one million votes. But the only votes that counted in California were the ones that enabled her to beat Donald Trump by one vote. The other 3,999,999? Throw them in the garbage. They don’t count.

Moreover, the composition of the Electoral College is not based on “one person, one vote,” as each state is given the same number of “electors” as it has members of Congress. That means that a state that is so small that it only has one representative in the House still has three “electors,” because it also has two senators. This construct insures that Electoral College has disproportionately higher representation of small states than simple population distribution would mandate. 

So let’s say we want to achieve the goal of “one person, one vote” by eliminating the Electoral College and basing our presidential election solely on the national popular vote.  

Good luck. 

Eliminating the Electoral College would require a constitutional amendment. Guess what you need to pass a constitutional amendment? While there are technically four different ways that a Constitutional amendment can be ratified, only one has ever been used. That is when an amendment is proposed by two-thirds of both the Senate and the House, and then ratified by three-quarters of State legislatures. In today's radically polarized political landscape, you'd have a hard time getting those three successive super-majorities on whether peanut butter goes with jelly, mac goes with cheese, or crimson goes with clover. 

There have already been many attempts to eliminate the Electoral College. All have failed, unable to clear the extraordinarily high set of bars required for ratification. In fact, the most promising effort to negate the impact of the Electoral College is not a constitutional amendment at all. The National Popular Vote Interstate Compact is essentially a clever mathematical work-around. It proposes an agreement among states that each will formally commit that all of their Electoral College votes will be cast for the candidate who wins the national popular vote. Once the NPVIC achieves such a commitment from states totaling 270 electoral votes, it can ensure that the winner of the national popular vote will win the presidency without eradicating the Electoral College. But the NPVIC, too, is stalled at states totaling 189 electoral votes… significantly short of the 270 needed to realize its purpose. 

Our real constitutional crisis is that we can’t fix the Constitution. 

In our radically polarized politics, it is just too hard. There have been 27 amendments to our Constitution, yet only one was proposed and ratified in the past 50 years.  In a world where technology, globalism, and individual empowerment has turbo-charged the rate of change, we have a Constitution that cannot be adapted to a rapidly changing world, even as it is currently being battered by a party that is more interested in preserving power than in preserving the Constitution.

Changing the reporting structure of government so that the Department of Justice cannot be controlled by the President? This would likely require another constitutional amendment, requiring 38 states to agree. Unfortunately, few of the 30 states won by Donald Trump are likely to want to change that structure. Most are just fine with Trump, and likely untroubled by the thought of him unleashing the investigate powers of our national security agencies toward the purpose of damaging Democrats.

The structural changes requiring Constitutional redress are critical, and yet they are not even the half of what must be done to fix our broken government. Much has been written about the degree to which gerrymandering not only perverts the concept of “one person, one vote,” but is actually the driving force behind the radical polarization of our politics. Want to eliminate gerrymandering? Well, that would require representatives in Congress and in state legislatures who won in gerrymandered districts to vote to eliminate the very scheme that guarantees their own re-election. 

Much of the carnage that Trump and the Republican Party has inflicted on our government comes in form of violating a vast web of customs and traditions that have historically shaped Presidential behavior even though these practices have never been codified as law. Once upon a time, the norm was for each new administration to respect and adhere to the global agreements, treaties, and alliances established by prior administrations. Donald Trump, however, wasted no time unilaterally taking the United States out of the Paris Climate Accords and the Iran Nuclear agreement.

It used to be understood that the executive branch must comply with the oversight requirements imposed by Congress in the form of subpoenas and document requests. It used to be understood that individuals who did not pass scrutiny for top level security clearances did not receive them. It used to be that our presidents respected the Emoluments Clause in the Constitution, preventing them from using their office for personal gain. It used to be understood that if our security agencies revealed a clear and present danger to our country, our President understood that the oath of office mandated action to mitigate such a threat. 

And yes, it used to be that Senate leaders acknowledged that the President had the right, power, and obligation to rapidly fill vacancies in the Supreme Court. Now we know that a Machiavellian Senate Majority Leader can override the will of the President and the people simply be refusing to bring a vote on the nominee to the Senate floor. Mitch McConnell exploited the fact that a time-honored custom is not actually a law. It must be made law… but that would require getting a law through Mitch McConnell’s senate. 

We, the people, now have a government led by a man who the majority of citizens did not vote for. We have a Supreme Court that was tipped by an unprincipled hypocrite in favor of a judicial philosophy that does not represent the rightful will of the people.  We have a legislative branch that is so hopelessly polarized and gridlocked that it cannot even pass background checks for gun purchases that are favored by over 90% of the citizens. We have a Department of Justice that covers up the illegal acts of a President, even as it accedes to that President’s wish that investigative probes be launched on his political opponents. 

We are the single nation in the history of the planet that has done the most to put education and science to the purpose of societal progress… and yet the ignorance of a single man now threatens the survival of our society and our planet.

We have a government that no longer reflects the will of the governed. We have a Constitution that seems too hard to fix. 

What was once a noble and shining triumph of government of, by, and for the people is at risk of becoming an imperial state of Barr, by McConnell, and for Trump. 

What’s to be done?

One thing is clear: we must make our fellow citizens understand exactly what McConnell, Barr, and Trump are up to. It is clear that our citizenry is more committed to the mere pursuit of happiness than to preserving their inalienable right to it. Most Americans simply do not grasp the degree to which the actions of these Republican leaders are calculated to destroy the system of government which keeps us free.

Of course the most important thing that we can do as citizens to end our spiral toward a wholly Imperial Presidency is to ensure there is no second term for Donald Trump. Yes, please do post articles like this on your Facebook account. But don’t stop there. Get involved. Work for a candidate. Get in touch with major progressive activist organizations like Indivisible and Swing Left. Help support a young person who wants to take six months to help with voter registration drives.

Because when Barr, McConnell, and Trump attack our government, we are the last line of defense.  

We, the people. 

Donald Trump can trample the institutions of our government, the laws of the land, and even the philosophical underpinnings of our form of government. But he and his Republican colleagues do not win until they defeat we, the people. 

As dark and despairing as this snapshot is, it is not a moment for progressives to lose heart. In truth, Trump, McConnell, and Barr are utterly mortgaging the future of their party in their own exceedingly short term desperation. 

By virtue of their policies and actions, Republicans are, on balance, alienating the more rapidly growing minority segments of population, essentially ensuring that their party will ultimately fall further into the minority. Republicans are cementing their identity as older, white, male, and ex-urban at a moment in history when every demographic trend is moving in the opposite direction. Republicans are, on balance, alienating the educated, pro-science segment of our society that will inevitably grow in power and influence by virtue of professional station, economic status, and access to information.  They are emphatically on the wrong side of climate science, an issue which will soon become as hot as the planet itself. Republicans are, on balance, waging a gender war in the face of a rising tide of female power and influence in government, business, education, public policy, and reproductive health. Republicans are on the wrong side of history on sexual preference and gender identity. 

And, perhaps as a result of all of the above, Republicans are sealing their fate by alienating a younger generation of Americans who are inherently more accepting of otherness, more inclusive, more open, and more concerned about long-term societal issues such as healthcare and climate change. In a recent Op-ed entitled "The Coming G.O.P. Apocalypse" published in The New York Times, David Brooks relayed Pew data showing that "57 percent of millennials call themselves consistently liberal or mostly liberal. Only 12 percent call themselves consistently or mostly conservative." Are Republicans simply unable to envision what the election of 2032 will look like? 

Or is that the very reason they are so eager to destroy the Constitution now? 

In short, we can envision a future in which progressives may actually attain the super-majorities needed to turn customs and traditions into law, to shore up laws that have been insufficient, and to even make the constitutional changes required to enable our government to keep pace with change. Perhaps the very first Constitutional amendment we envision is one that makes it easier to amend the Constitution.

All of which makes it appears more clear than ever that the 2020 election is the fulcrum on which our future as a nation rests.

If we allow Trump, McConnell, and Barr another four years to continue to destroy the Constitution and our rule of law, they may be able to compromise the very mechanisms that enable we, the people, to exert our right of self-rule, and to enjoy the peaceful transition of power from one party to another. 

All hands on deck. Now. Do not wait until the election is at hand to ask what you can do for your country. No one can sit this one out. 

“We, the people, in order to form a more perfect union…”

Forming a more perfect union is not a one-time job, it is an ongoing responsibility of citizenship. Now is the time to recognize the reality of Catch 1776: the Constitution cannot protect, preserve, and defend itself. It needs us. We, the people. 

Now is our time to "ensure the preservation of justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity."

How will you fulfill your duty?

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