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Opinion: Our Constitutional Crisis Is Already Here

Opinion Our Constitutional Crisis Is Already Here
Date Posted: Monday, September 27th, 2021

“Is there no virtue among us? If there be not, we are in a wretched situation.”
— James Madison


The United States is heading into its greatest political and constitutional crisis since the Civil War, with a reasonable chance over the next three to four years of incidents of mass violence, a breakdown of federal authority, and the division of the country into warring red and blue enclaves. The warning signs may be obscured by the distractions of politics, the pandemic, the economy, and global crises, and by wishful thinking and denial. But about these things there should be no doubt:

First, Donald Trump will be the Republican candidate for president in 2024. The hope and expectation that he would fade in visibility and influence have been delusional. He enjoys mammoth leads in the polls; he is building a massive campaign war chest, and at this moment the Democratic ticket looks vulnerable. Barring health problems, he is running.

Second, Trump and his Republican allies are actively preparing to ensure his victory by whatever means necessary. Trump’s charges of fraud in the 2020 election are now primarily aimed at establishing the predicate to challenge future election results that do not go his way. Some Republican candidates have already begun preparing to declare fraud in 2022, just as Larry Elder tried meekly to do in the California recall contest.

Meanwhile, the amateurish “stop the steal” efforts of 2020 have given way to an organized nationwide campaign to ensure that Trump and his supporters will have the control over state and local election officials that they lacked in 2020. Those recalcitrant Republican state officials who effectively saved the country from calamity by refusing to falsely declare fraud or to “find” more votes for Trump are being systematically removed or hounded from office.

Republican legislatures are giving themselves greater control over the election certification process. As of this spring, Republicans have proposed or passed measures in at least 16 states that would shift certain election authorities from the purview of the governor, secretary of state or other executive-branch officers to the legislature. An Arizona bill flatly states that the legislature may “revoke the secretary of state’s issuance or certification of a presidential elector’s certificate of election” by a simple majority vote. Some state legislatures seek to impose criminal penalties on local election officials alleged to have committed “technical infractions,” including obstructing the view of poll watchers.

The stage is thus being set for chaos. Imagine weeks of competing mass protests across multiple states as lawmakers from both parties claim victory and charge the other with unconstitutional efforts to take power. Partisans on both sides are likely to be better armed and more willing to inflict harm than they were in 2020. Would governors call out the National Guard? Would President Biden nationalize the Guard and place it under his control, invoke the Insurrection Act, and send troops into Pennsylvania or Texas or Wisconsin to quell violent protests? Deploying federal power in the states would be decried as tyranny. Biden would find himself where other presidents have been — where Andrew Jackson was during the nullification crisis, or where Abraham Lincoln was after the South seceded — navigating without rules or precedents, making his own judgments about what constitutional powers he does and doesn’t have.

Today’s arguments over the filibuster will seem quaint in three years if the American political system enters a crisis for which the Constitution offers no remedy.

Most Americans — and all but a handful of politicians — have refused to take this possibility seriously enough to try to prevent it. As has so often been the case in other countries where fascist leaders arise, their would-be opponents are paralyzed in confusion and amazement at this charismatic authoritarian. They have followed the standard model of appeasement, which always begins with underestimation. The political and intellectual establishments in both parties have been underestimating Trump since he emerged on the scene in 2015. They underestimated the extent of his popularity and the strength of his hold on his followers; they underestimated his ability to take control of the Republican Party; and then they underestimated how far he was willing to go to retain power. The fact that he failed to overturn the 2020 election has reassured many that the American system remains secure, though it easily could have gone the other way — if Biden had not been safely ahead in all four states where the vote was close; if Trump had been more competent and more in control of the decision-makers in his administration, Congress and the states. As it was, Trump came close to bringing off a coup earlier this year. All that prevented it was a handful of state officials with notable courage and integrity, and the reluctance of two attorneys general and a vice president to obey orders they deemed inappropriate.

These were not the checks and balances the Framers had in mind when they designed the Constitution, of course, but Trump has exposed the inadequacy of those protections. The Founders did not foresee the Trump phenomenon, in part because they did not foresee national parties. They anticipated the threat of a demagogue, but not of a national cult of personality. They assumed that the new republic’s vast expanse and the historic divisions among the 13 fiercely independent states would pose insuperable barriers to national movements based on party or personality. “Petty” demagogues might sway their own states, where they were known and had influence, but not the whole nation with its diverse populations and divergent interests.

Such checks and balances as the Framers put in place, therefore, depended on the separation of the three branches of government, each of which, they believed, would zealously guard its own power and prerogatives. The Framers did not establish safeguards against the possibility that national-party solidarity would transcend state boundaries because they did not imagine such a thing was possible. Nor did they foresee that members of Congress, and perhaps members of the judicial branch, too, would refuse to check the power of a president from their own party.

In recent decades, however, party loyalty has superseded branch loyalty, and never more so than in the Trump era. As the two Trump impeachments showed, if members of Congress are willing to defend or ignore the president’s actions simply because he is their party leader, then conviction and removal become all but impossible. In such circumstances, the Framers left no other check against usurpation by the executive — except (small-r) republican virtue.

Critics and supporters alike have consistently failed to recognize what a unique figure Trump is in American history. Because his followers share fundamentally conservative views, many see Trump as merely the continuation, and perhaps the logical culmination, of the Reagan Revolution. This is a mistake: Although most Trump supporters are or have become Republicans, they hold a set of beliefs that were not necessarily shared by all Republicans. Some Trump supporters are former Democrats and independents. In fact, the passions that animate the Trump movement are as old as the republic and have found a home in both parties at one time or another.

Suspicion of and hostility toward the federal government; racial hatred and fear; a concern that modern, secular society undermines religion and traditional morality; economic anxiety in an age of rapid technological change; class tensions, with subtle condescension on one side and resentment on the other; distrust of the broader world, especially Europe, and its insidious influence in subverting American freedom — such views and attitudes have been part of the fabric of U.S. politics since the anti-Federalists, the Whiskey Rebellion and Thomas Jefferson. The Democratic Party was the home of white supremacists until they jumped to George Wallace in 1968 and later to the Republicans. Liberals and Democrats in particular need to distinguish between their ongoing battle with Republican policies and the challenge posed by Trump and his followers. One can be fought through the processes of the constitutional system; the other is an assault on the Constitution itself.

Source: Robert Kagan/Washingtonpost.com

Date Posted: Monday, September 27th, 2021 , Total Page Views: 2876

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