As an American lawyer who was educated in the UK and often worked there, I always felt a bit smug about our written Constitution. The UK Constitution seemed a vague tribute to British self-restraint and muddling through. No one could say exactly what it meant and in any event it was subject to the sovereignty of Parliament so that if the UK stopped electing vague muddlers at any point, the whole structure could be replaced by a runaway, radical system of governance.
The US Constitution, by contrast, reflected the best of Eighteenth-Century enlightenment thinking about separation and limitation of powers, as well as a strong declaration of the rights of individuals against the power of the state. Life-tenured judges interpreted and applied that Constitution, which no president or Congress could undo absent a cumbersome, super-majoritarian amendment process. Our president had significant powers in foreign affairs, but his function was to execute the laws enacted by Congress, which held the purse strings and the power to remove the president for wrongdoing. Every branch had its independent role to play with a reasonable consensus about the limits and guardrails that governed that role.
The Constitution is by no means a perfect document — it contemplated slavery, for one thing. But it provided an excellent framework for stable, limited government.
As we have learned, the written Constitution is not self-executing. It relies on the good faith of each branch to uphold the integrity of the basic structure of the system. It requires the commitment of the individuals who operate within the constitutional system to preserve its republican structure, even if honoring the rules does not serve a short-term political or policy goal. Without that commitment, we are at grave risk.
The thugocracy in the current White House poses such risk, just as the Nixon presidency did. But under Nixon, the House and the Senate stood up for the basic structure of democracy and the rule of law, Republicans and Democrats alike. The Supreme Court ruled unanimously that Nixon was required to turn over all tapes and evidence, rejecting the proposition Nixon famously articulated that: “When the president does it, that means that it is not illegal."
Nixon turned over the tapes and resigned. Gerald Ford, the accidental president, put a fitting coda on the Nixon scandal when he said: “My fellow Americans, our long national nightmare is over ... Our Constitution works; our great republic is a government of laws and not of men.”
Today, it appears that our long national nightmare will continue and our Constitution has become just another political football. To a significant degree that is a function of having a president who floridly embraces the values of the mob rather than of the Framers. But Trump’s actions could not have had nearly the same impact without the Constitution being hollowed out from below by the Senate Majority Leader, Mitch McConnell. McConnell tried to cultivate a reputation as an institutionalist, but he emerges instead as an anarchist of the radical right, perhaps the greatest enemy to Constitutional democracy since the Civil War.
Four years ago, McConnell showed his willingness to tear down the institutions of the United States for partisan gain when he refused to hold a hearing on President Obama’s nomination of Merrick Garland to the Supreme Court. (Full disclosure: I have known Merrick Garland for decades; he married my wife and me; and he is a friend. But my view of McConnell’s radicalism has nothing to do with Merrick Garland’s many virtues as a judge and as a person.)
The Constitution specifies that the Senate has the power and the duty of “advice and consent” on the appointment of federal judges. That includes the power to give negative advice and to withhold consent. McConnell had a majority; he could have held hearings, rounded up votes and defeated the nomination. He didn’t want to take the risk, because Garland was a mainstream nominee with a long record; McConnell himself had pointed to Garland years before as the kind of nominee that deserved bipartisan support.
So McConnell simply chose to ignore the Constitution and abdicate the Senate’s institutional duty. He invented a new principle — that there should be no confirmations during an election year; the new president should have that prerogative. He pointed to a newly-minted “longstanding tradition” that suspends the Constitutional rights and duties in an election year. The right to nominate and the correlative duty to advise and consent was only operative three-quarters of the time, he said. Yet asked last May what he would do if there was a vacancy in the last year of Trump’s presidency, he answered, “Oh, we’ll fill it.”
Indeed, the Senate has done little else during Trump’s presidency other than confirm an unprecedented number of marginally qualified impeccable Trumpites to lifetime appointments on the federal courts. McConnell has not only used his power to defeat the Constitutional obligations of the Senate — he has been trying to turn the federal judiciary into just another vote-counting, completely politicized body.
Then we come to the squalid saga of impeachment, where the Constitution prescribes a role for the House of Representatives to decide whether there is probable cause for concluding that the president has committed high crimes and misdemeanors; if so, the Constitution is then required to try these charges. Mirroring our grand jury and trial system, the House considers whether there is a sufficient basis to charge and the Senate considers whether there is a basis to convict. The standards are quite different and as with trials, there is nearly always more and different evidence. That is especially the case here, when the endlessly litigious president tried to block the evidence and run out the clock. John Bolton wants to testify about Giuliani's "drug deal" in Ukraine, as do Giuliani's henchmen.
But once again, McConnell is reading the room, not the Constitution. The Senate, like the president, is afraid of John Bolton and others and so rather than have a trial, he simply rewrites the rules and articulates newly minted principles to support the outcome. Had McConnell been the majority leader in 1974, I assume he would have stood by while Nixon burned the tapes and said there is nothing to see here.
Obstruction is not a crime; cover-ups are just politics as usual. Under McConnell, impeachment trials can occur without firsthand witnesses or documents; presidents can extort foreign leaders to hurt their political enemies and it is all just so tedious and irrelevant. McConnell and Trump may declare victory, but it is a pyrrhic victory indeed for the republic. A written Constitution is not much value when it is just a piece of paper to those who decline to administer it.
Date Posted: Saturday, February 8th, 2020 , Total Page Views: 332
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