02.05.2024

Ditch the constitution

America is in thrall to a dictatorship of the past. That Donald Trump is relying on the Supreme Court to establish his ‘presidential immunity’ from prosecution should act as a clarion call for mass action to achieve a genuine democracy, argues Daniel Lazare

Whatever its literary merits, Joseph Heller’s satirical novel about World War II, Catch-22, at least introduced readers to a logical conundrum that is growing more and more relevant in terms of America’s ongoing political meltdown.

It concerns an airman who pleads insanity to avoid going on a dangerous bombing mission. No problem, he is told. But there is a catch. The mission is so perilous that no sane person wants to go on it to begin with. So pleading insanity is the normal thing to do. It is proof that the airman is perfectly sane and must therefore go regardless. ‘Catch-22’ means he is screwed either way.

Whether or not the US Supreme Court judges weighing Donald Trump’s claim of presidential immunity have read Heller, they are wrestling with essentially the same problem. During oral arguments last week, Trump’s lawyer told the court that the once, and likely future, president cannot be charged with inciting insurrection, because, while he was impeached by the House of Representatives - a process akin to indictment - the Senate voted to acquit him by a vote of 57-43, which is 10 shy of the two-thirds majority required to convict.

Unequal

Given that (1) the Senate is organised on the basis of equal state representation and (2) rightwing, pro-Trump states tend to be rural and under-populated, the 57 senators who voted in favour actually represented a significantly larger segment of US society - 62% to be exact. An overwhelming majority thus wanted to throw the book at Trump for attempting to overturn a democratic election back in January 2021. Yet an unchangeable 237-year-old constitution said no.

Now Trump is arguing that the Senate vote means he is also “immune” in the courts. Allowing him to stand trial, Trump attorney John Sauer argued on April 25, would violate the ‘separation of powers’, the constitution’s most precious organising principle, by allowing politicians to threaten a president with judicial recrimination the moment he leaves office. Decision-making will collapse, since presidents will be so worried about going to jail that they will be afraid to make a single move.

“Could President George W Bush have been sent to prison for ... allegedly lying to Congress to induce war in Iraq?” Sauer asked. “Could president Obama be charged with murder for killing US citizens abroad by drone strike?”

Socialists say yes. But the ruling class says no, on the grounds that presidents must be free to drone or invade in order to perpetuate the capitalist system. Based on the lively judicial discussion at last week’s hearing, it looks like the Supreme Court’s six-three conservative majority agrees. Even if the justices do not toss the case out entirely, it appears that they will rule that Trump is entitled to at least partial immunity and that Tanya Chutkan, the federal judge presiding over the case in Washington, should scale the charges back accordingly. At the very least, the effect will be to delay the case until after the election, at which point Trump will be free to cancel the case entirely if he returns to office.

But this is where Catch-22 comes in. If the constitution “requires impeachment to be a gateway to criminal prosecution”, as justice Amy Coney Barrett, an arch-conservative Trump appointee, put it last week, then opponents must henceforth be careful to dot all I’s and cross all T’s by impeaching and convicting a president on Capitol Hill before prosecuting him in the courts. That is what the constitution seems to demand.

However, there is a catch here as well. As a lower-level federal appeals judge noted in January, impeachment is “quite a cumbersome process that requires the action of a whole branch of government that has a lot of different people involved”.¹ Some 435 members of the House must gather and deliberate. A hundred senators must vote. Yet chances of a conviction are near zero, since a two-thirds Senate majority is all but unattainable.

So Congress must go through the motions, even though it is almost certain to fail. Americans must twiddle their thumbs, while waiting for the decisive action that never comes. Whether or not Congress votes to impeach, justice will be denied and a runaway chief executive will be emboldened. Catch-22 says that “we, the people” are screwed.

Democracy?

Constitutionally justified or not, the effect of such ‘gateway’ theory is to remove the last constitutional constraints on the executive branch at a time when newspapers are filled with speculation about the dictatorial plans Trump has in mind. If ‘the Supremes’ decide in favour of at least some degree of presidential immunity, there will be little to hold him back. He will be free to do whatever he wants with minimal pushback from the other branches.

The result is not an electoral dictatorship, as democracy is sometimes described, but the opposite: ie, electoral democracy turned on its head. Despite winning the Electoral College by 304-227, Trump was a minority president in 2016, since he otherwise lost by nearly three million popular votes. Considering that the contest now largely revolves around seven battleground states that together account for less than 20% of the US population - Arizona, Georgia, Michigan, Nevada, North Carolina, Pennsylvania and Wisconsin - the same could well happen in November.

If so, it will be with the assistance and encouragement of other minoritarian institutions that increasingly dominate the US system. These include a Senate that allows a majority that lives in just 10 mega-states to be outvoted four to one by the minority in the other 40; and the Supreme Court. Of the court’s six conservative members, for instance, five were nominated by minority presidents (ie, John Roberts and Samuel Alito by George W Bush; and Neil Gorsuch, Brett Kavanaugh and Barrett by Trump), while four were confirmed by senators representing a minority of the population (ie, Gorsuch, Kavanaugh, Barrett, and Clarence Thomas).

Minority rule has thus spread from the Senate and the Electoral College to the Supreme Court and, from there, back to the presidency. Trump would never have struck out in such an authoritarian direction if an increasingly undemocratic constitutional structure did not encourage him at every step of the way.

Is there a way out of this mess? Catch-22 says no, since a finely constructed constitutional structure has seemingly closed off all escape routes. But reality says yes, since there is no reason that a sovereign people should have to submit to a system of government that is undermining their rule.

But Democrats will be the last to lead such a struggle, since they have not only gone along with America’s growing constitutional dictatorship, but have cheered it on at every step.

The process started in 1937 when the Supreme Court dropped its ultra-conservative opposition to Franklin D Roosevelt’s New Deal and decided that the president had power to regulate wages and working conditions after all. This was the “switch in time that saved nine” (to quote the humourist, Cal Tinney), which transformed the court from “nine old men” (to quote FDR) into sacred guardians of the republic. Constitution worship reached new heights during the Warren court of the 1950s and 60s, before attaining absolute apotheosis during the Watergate scandal of 1972-74, in which Richard Nixon met his downfall.

“My faith in the constitution is whole, it is complete, it is total, and I am not going to sit here and be an idle spectator to the diminution, the subversion, the destruction, of the constitution,” Barbara Jordan, a black Democrat from Texas, declared during the Watergate hearings - this about a constitution that reinforced slavery before the Civil War and strengthened Jim Crow after. Elizabeth Holtzman, a liberal Democrat from Brooklyn, excoriated the president for never stopping to ask himself, “What does the constitution say? What are the limits of my power? What does the oath of office require of me? What is the right thing to do?” Morality, wisdom, and the constitution were one. Faced with the threat posed by Trump, Nancy Pelosi, the 84-year-old Democratic leader, condemned him for failing to subordinate himself to “the beautiful, exquisite, brilliant, genius of the constitution”,² while a White House spokesman said in 2022 that criticising America’s “sacrosanct” plan of government in any way whatsoever is “anathema to the soul of our nation and should be universally condemned”.³

Presumably, the same applies to anyone who suggests that a Senate based on equal state representation is less than democratic. Ditto anyone who suggests that the impeachment process is in need of an overhaul or that a document dating from the age of silk knee breeches and wooden teeth is long past its sell-by date. All such notions should be damned, and their authors placed in the stocks. Rather than thinking about why US government is so dysfunctional and undemocratic, Americans should switch their minds off and obey.

Rebellion

Nonetheless, there are signs that Americans are beginning to rebel. Elected officials still shower the constitution with hymns of praise, but they have no choice, since it requires them to swear to “preserve, protect and defend the constitution” as a condition of taking office.

But the general public is less constrained. The New York Times recently published a spirited op-ed by Aziz Rana, a law professor at Boston College, arguing that “liberals should not celebrate the constitution as our best bulwark against Mr Trump”, because the document “has made our democracy almost unworkable”.⁴ After publishing How democracies die, a bestseller in 2018, a couple of Harvard professors named Steven Levitsky and Daniel Ziblatt have published another book entitled Tyranny of the minority, dealing with the constitution’s growing anti-democratic turn. It too has turned into a runaway bestseller.⁵

Two or three disgruntled academics do not a movement make. But neither does a broader shift in public opinion, since the constitution is dead set against public opinion by design. By requiring approval by two-thirds of each house plus three-fourths of the states, the amending clause set forth in article 5 allows 13 states representing as little as 4.4% of the population to veto any structural reform, no matter how minor. Public opinion be damned, in other words. The constitution says the people must wrestle with a series of intractable constitutional problems - the right to bear arms, a woefully malapportioned Senate, an unworkable system of checks and balances, etc - forever, whether they like it or not. No appeal is possible against an absolute dictatorship of the past. The will of the founders shall prevail, because legislating for the ages is what founders do. After all, who are we, the living, to say otherwise?

But no society has to submit to a plan of government that is against its interests. As no less an authority than the Declaration of Independence, adopted 11 years prior to the constitution, says,

... whenever any form of government becomes destructive ... it is the right of the people to alter or to abolish it and to institute new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness.

This is the revolutionary predicament that America now faces. To reform an undemocratic constitution, the masses must act not within it but from without. The specific mechanism is not a constitutional convention, as outlined in article 5 (a non-starter, since the article says that Wyoming and a dozen other mini-states will still be able to veto whatever it comes up with). Rather, it is a constituent assembly in which the people as a whole refashion the constitutional structure in its entirety, not according to some ancient two-thirds, three-fourths rule, but democratically through a straight-up majority vote.

Society can no longer rely on a piece of parchment that made little sense when it was drafted in 1787 and makes even less now. Led by the working class, it must democratise itself directly on its own.

1. www.rev.com/blog/transcripts/dc-circuit-court-of-appeals-oral-argument-u-s-v-trump-1-10-24-transcript.↩︎

2. See ‘America the robotic’ Weekly Worker January 24 2020: weeklyworker.co.uk/worker/1283/america-the-robotic.↩︎

3. www.washingtonpost.com/politics/2022/12/03/trump-constitution-truth-social.↩︎

4. www.nytimes.com/2024/04/26/opinion/constitution-trump.html.↩︎

5. D Ziblatt and S Levitsky Tyranny of the minority New York 2023. For a less than enthusiastic review, see daniellazare.com/2023/10/24/how-democracies-die-version-2-0.↩︎