By Dan McLaughlin
Thursday, October 24, 2024
The Constitution is on the ballot November 5, but with
more enemies than friends. Worse, as happened dramatically after 2020 and less
vividly after 2016, it may be menaced not only by the winners of the election,
but by the losers.
The 235-year rule of the written Constitution is
unprecedented in world history. Our constitutional order has bequeathed us the
freest and most prosperous society mankind has ever known. It has surmounted
every open challenge. Yet many of its great features have been eviscerated —
not by bouts of insurrection or spasms of tyranny, but by erosion, innovation,
and institutional decay.
Living constitutionalism, the administrative state,
governance by executive order, federal subsidies that control the states, the
effective death of impeachment as a remedy for executive-branch wrongdoing, and
crisis budgeting that defangs the congressional power of the purse: Each of
these has undermined the original design of distinct federal and state power
bases, effective checks and balances, popular accountability, and written law.
So the greatest threats to the Constitution resemble
those that prevailed in the past. We survived January 6 — embarrassed but
unscathed, and even fortified in safeguards against a repetition. We cannot say
the same of the damage done by Woodrow Wilson, Franklin D. Roosevelt, Lyndon B.
Johnson, or the post-Watergate Congress.
In assessing the threats presented by Donald Trump and
Kamala Harris to the constitutional order, we must guess whether either has
changed in the past five years. The case for alarm at Trump is that he has
changed; the case for alarm at Harris is that she hasn’t.
Trump: The Sequel
Trump’s presidential term was not the constitutional
disaster his detractors warned of — until its end. He delivered a
constitutionalist majority on the Supreme Court for the first time in nine
decades. Like all modern presidents, he pushed and sometimes exceeded the
bounds of his legal authority when Congress thwarted him, notably when he tried
to fund his prized border wall without an appropriation and to ban bump stocks
by agency reinterpretation of the law. Yet, in marked contrast to its leader,
the executive branch under Trump was surprisingly modest about its own
authority. His corrosion of norms of presidential behavior wasn’t matched by
assaults on the limits of presidential power.
Has Trump changed since 2019? His atrocious response to
the 2020 election, including pressuring Mike Pence to exceed his authority
under the Twelfth Amendment to control the certification of electors, was in
character for Trump when he is responding to defeat. It exposed what can happen
when he is personally bent on something and unrestrained by responsible people,
whose ranks dwindled in the closing months of his presidency.
Trump has signaled since then that in a second term he
would be less restrained. In 2022, he said on social media that we should
“throw the Presidential Election Results of 2020 OUT and declare the RIGHTFUL
WINNER” or “have a NEW ELECTION” because “a Massive Fraud . . . allows for the
termination of all rules, regulations, and articles, even those found in the
Constitution.” He has since denied even saying it, claiming that he just wanted
to “RIGHT THE WRONG” of a purportedly stolen election, but it’s prudent to be
alarmed at such talk.
Trump has emitted ominous but vague threats to seek
retribution against political enemies and to use the military against unruly
domestic protesters and rioters, and perhaps “the enemy from within” — a phrase
he’s used specifically for certain Democrats in Congress. This, too, is
dangerously reckless talk. Yet his previous administration was hesitant on
those fronts. Hillary Clinton was never charged under the Espionage Act, and
John Durham’s probe of law-enforcement misconduct against Trump brought only the
narrowest of charges. Trump let disorder rule American streets in the summer of
2020 and wound up being widely criticized for failing to deploy troops
to defend the Capitol. Few serious people think he would, for example, haul Liz
Cheney in front of a military commission. But the mere fact of asking the
question is a dismal sign.
Trump himself hasn’t changed, other than to have gotten
older and more bitter. But will different subordinates yield more lawlessness?
Pence, Bill Barr, Don McGahn, and Jeff Sessions won’t be back, and traditional
conservatives of their ilk are scarcer now in Trump’s orbit. Trump has
repeatedly promised a list of potential Supreme Court nominees like the one he
issued in 2016, but it has not been forthcoming, and his partnerships with
Federalist Society veterans have reportedly ended. It has also been reported
that Trump will demand affirmation of his stolen-election theories as a litmus
test for hiring — a dire sign for the respect his appointees would have not
only for law but for basic reality. J. D. Vance’s willingness to publicly
embrace those theories and castigate Pence for his principled stance — when
Vance plainly knows better — suggests the corrupting power of such demands.
Trump’s stated second-term goals, such as mass
deportations and heavy tariffs, largely involve areas in which Congress has
delegated broad and hard-to-review powers to the executive branch. Retributive
prosecutions would be handled by the courts and generate uneven results and
periodic constitutional crises, just as have the retributive prosecutions of
Trump. On the other hand, it now seems likely that some federal laws that the
Biden-Harris administration is unlawfully failing to enforce, such as the Comstock
Act’s ban on interstate mailing of abortion pills, would also not be enforced
by a new Trump administration.
Trump may be restrained again from within the executive
branch. But that, too, undermines the Constitution. The executive power is
vested in one person, and all others who exercise it are supposed to carry out
the president’s orders faithfully, not to obstruct them.
More baroque fears — that Trump would cancel elections or
stay in office in defiance of the 22nd Amendment — are fantastical. Ego,
more than power, has always been the driver and predictor of Trump’s behavior.
Trump eventually left the Oval Office meekly after January 6. By 2029, he will
be 82 and could claim to go out undefeated.
Thematically, Trump is likelier than Harris to use
America’s 250th birthday in 2026 to promote patriotic reverence for the
founding generation rather than a festival of revisionism and recrimination.
The good this could do in encouraging respect for the Constitution, however,
might be undermined by its association with Trump himself.
Running for Queen
Has Kamala Harris changed since 2019? Her defenders say
yes, but nobody can say how or why. The evidence from her abbreviated 2024
campaign is not reassuring.
The threats posed by Harris resemble and escalate successful past
threats to the Constitution. She’s an anti-institutionalist who has endorsed
Supreme Court term limits and abolition of the Senate filibuster. Her support
for restructuring both the Court and the Senate has endured even as her
justifications have changed. While she now crafts her attack on the Supreme
Court with a proposal for term limits to remove current justices rather than
outright FDR-style Court-packing (which she backed in 2019), it’s a comparable
threat. Her willingness to smear the justices is emblematized by her reading
into the Senate record the bizarre gang-rape claims against Brett Kavanaugh
promoted by since-disgraced lawyer Michael Avenatti.
Harris has no regard for the limits of federal power,
which is why she’s proposing to outlaw the most popular rifle in the country,
federally overrule every state law restricting abortion, and micromanage the
price of groceries — none of which Washington may constitutionally do. She has
no regard for the separation of powers, which is why her presidential campaign
in 2019 was so full of pledges of presidential fiats that David French quipped,
“Why run for president when you can run for queen?”
Has this changed? Harris is unrepentant over the current
administration’s record of attempting by executive decree to impose a
nationwide moratorium on evictions, use workplace-safety law as a lever to
mass-mandate vaccinations, and unilaterally forgive half a trillion dollars in
student loans. She even went along when Joe Biden threatened to presidentially
issue debt not authorized by Congress.
Harris is as willing to disregard the president’s duty to
enforce written laws as she is to enforce laws that don’t exist. She’s declined
numerous opportunities to distance herself from the administration’s
nullification of many laws, from the Comstock Act to half a dozen
border-enforcement statutes. This pattern dates back to her refusal to defend
California’s democratically enacted Proposition 8 (against same-sex marriage)
as its attorney general. It’s the law only if she likes it.
Trump might strain the law to prosecute political
enemies. Democrats, including the Biden-Harris administration, have already
done so. Jack Smith has been using the criminal process to advocate against
Trump this fall, first arguing (with no law-enforcement justification) that he
needed to put Trump on trial before the election, then finding a pretext to
dump his evidence into a filing aimed for the newspapers. Harris has embraced
this campaign, which extends beyond Trump and his co-defendants to include supporting
exorbitant criminal sentences of peaceable pro-life protesters and prosecution,
supposedly for leaking medical records, of a whistleblower who exposed a
hospital’s lies about transgender surgeries for minors — while herself citing
illegally leaked medical records about a woman who died from the abortion pill.
That’s consistent with how Harris used her post as California attorney general
to prosecute David Daleiden for exposing Planned Parenthood’s involvement in
illegal fetal-tissue trafficking, while violating the First Amendment (as the
Supreme Court found) in pressuring nonprofits to disclose their donors.
Censorship under the guises of public health and of
fighting purportedly foreign “disinformation” has been one of the illiberal
causes of our age. Harris and her running mate Tim Walz have embraced it in
this campaign, with Walz even openly comparing the expression of
“disinformation” to “shouting fire in a crowded theater” on the debate stage.
Another theme of the Left has been to tolerate political violence, from streets
to political buildings to campuses. Harris in 2020 raised money to bail out
rioters in Minneapolis. Given that assassination attempts and home protests
have become weapons of the day against politicians and even Supreme Court
justices, this should alarm us.
In all the foregoing, Harris has been ominously abetted
by her party, the press, and other major institutions captured by the Left. One
of the great vindications of our constitutional system after the 2020 election
was how many Republican politicians and Republican-appointed judges refused to
go along with Trump at his worst. By contrast, the political press — fresh off
covering up Biden-family corruption and the president’s decline, each until
they were too glaring to ignore — has closed ranks around Harris as if it were
their job to protect her from questioning.
Nobody on Harris’s side has stood up against the assaults
on the courts, the Senate, free speech, and the criminal process, except for
Joe Manchin and Kyrsten Sinema defending the filibuster — and both were
effectively driven out of their party as a result. Defenders of Harris tell us
that she will be checked by the Supreme Court and the Senate, but that can be
true only so long as Democrats don’t control the Senate and Harris is prevented
from replacing the Court’s majority. They ignore the stress she will put on
those institutional checks by rejecting their legitimacy.
How will a Harris White House react if she defies a
Republican Senate by means of executive orders and the Court then stops her?
Undoubtedly by demonizing the justices as corrupt, as her movement has been
doing. Likely with threats to their positions, as in her schemes to restructure
the Court, and at least implicit threats to their safety, following the lead of
Chuck Schumer, who took to the steps of the Court to tell two of its justices:
“You have unleashed the whirlwind, and you will pay the price. You won’t know
what hit you.” The rule of law can take only so much of this.
We speculate about what presidents may do, but we also
stress-test them in a lengthy campaign in which they jostle with party rivals,
field unpredictable queries from an adversarial press and ordinary voters, and
stand in multiple debates against their opponent. Harris has avoided much of
that process, and we are asked to take it on faith that her bland renunciations
of most of her past stances are sincere.
It is the illiberalism and deceit of the Harris campaign,
and the complicity of the press and her own side, that give off the greatest
warning of what a Harris administration could look like: one that feels it can
get away with anything while its friends offer cover. Trump’s wolf comes as a
wolf. Nobody pretends that he’s just full of joy.
***
The winners aren’t the only problem. A Trump defeat
might not replay January 6, but it is likely to be met with paranoia and
denial, and potentially worse. A Harris loss may yet present similar problems:
Recall the hundreds of arrests at Trump’s inauguration in 2017 or how many city
centers were boarded up in November 2020 for fear of rioters if Trump won.
It doesn’t end there. The rearguard lawfare against the
Trump administration enlisted arms of law enforcement and the national-security
state in ways dangerous to democracy and fundamentally inconsistent with
accepting the outcomes of elections. Another Trump term would escalate the
pressure to try more of the same.
We still have a constitutional republic — if we can save
it from its leaders.
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