By Rich Lowry
Friday, January 07, 2022
The Constitution must be defended — except when it must
be jettisoned.
We’ve heard much upon the anniversary of January 6 about
how Donald Trump wanted to distort the Constitution to get Vice
President Mike Pence to try to throw the election to him a year ago.
And this was, indeed, a cockamamie,
counter-constitutional scheme. Neither the Framers of the Constitution nor the
drafters of the Twelfth Amendment, the provision in question that day, intended
to invest unilateral power in one person to decide presidential elections.
Indeed, besides Pence, who refused to buckle to Trump’s
pressure, the biggest hero of the post-election period was the constitutional
system itself. Once again, it proved a durable vehicle of representative
government and a frustration to anyone hoping to seize and wield illegitimate
power.
Its distribution of power via federalism to the 50
states, its separation of powers at the federal level, and its provision for an
independent judiciary made it impossible for Trump allies to press one button
and reverse the outcome of the election.
So, it’s bizarre for the Democrats and the Left to
profess to consider a possible repeat by Trump in 2024 an ongoing national
emergency, and yet establish more precedent for a president of the United
States acting unilaterally beyond his constitutional powers (via Biden’s
eviction moratorium and OSHA-imposed vaccine mandate); push to nationalize the
country’s voting rules; play with the idea of destroying the legitimacy of the
Supreme Court through Court-packing; and generally undermine and tear at
the fabric of the Constitution as a racist relic unworthy of the 21st century.
If Trump 3.0 is an existential threat, they should want
to make it absolutely clear that all presidents have to strictly abide by the
Constitution in all circumstances. They should seek to maintain a highly
decentralized election system. They should work to buttress the standing of the
Supreme Court. And they should hold up the Constitution as a time-tested
bulwark of our liberties.
Instead, we’ve seen the opposite — because doing these
things makes it harder to pursue the progressive project.
The academic Corey Robin stated it with admirable
forthrightness in an essay for Politico magazine headlined,
“Republicans Are Moving Rapidly to Cement Minority Rule. Blame the Constitution.”
This has become a mainstream view on the center-left,
where it is considered an outrage that the Founders didn’t foresee that a
left-wing Democratic Party would have trouble competing in many rural states
and therefore be at a disadvantage in the Senate and the Electoral College.
The last few years should have given progressives a new
appreciation of federalism, though — it allowed, for instance, deep-blue
California to keep governing itself largely according to its own lights even
when Trump was president.
That the Constitution makes it hard to get things done in
Washington, another charge in the indictment against it, also serves an
important function. It forces parties to win big majorities if they want to
forge transformational changes, or to mobilize public opinion behind their
agenda.
Otherwise, the gravitational force of the system is
toward consensus. We see this in the debate over the sweeping Democratic voting
bills. The Democrats are unlikely to get these bills through with their
razor-thin, probably transitory majorities, although there is clearly an
opening to pass reforms to the Electoral Count Act — changes that would be
bipartisan and actually responsive to the most important, Pence-centric element
of Trump’s post-election push in 2020.
This is considered intolerable, though, and Democrats are
entertaining ideas — whether blowing up the filibuster, packing the Supreme
Court, or adding new states for partisan advantage — that violate the kind of
norms they always cited in opposing Trump.
The New York Times recently ran an
editorial arguing that every day is January 6. That is clearly
absurd. But the Constitution is indeed always under threat, and it falls on its
friends to defend it from all challengers.
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