Is The American Experiment Ending?

American democracy was already having serious difficulties before Donald Trump became President. But the revelations in this anonymous op-ed piece that there is a cabal within the White House that feels the need to proactively overturn valid Presidential orders and policies in order “to frustrate parts of his agenda and his worst inclinations” seems to take us to a new level of governmental and constitutional dysfunction.

Republicans, mastering the obvious, pretend that this op-ed simply tells us what we already know about the President’s being patently unfit to hold his office. The fact that Republicans simply shrug off the fact that Trump is clearly incapable of fulfilling his constitutional role and do nothing to restrain or rectify the situation shows us once again that the current GOP consistently chooses party over country.

More importantly, the fact that Republicans are willing to ignore the evidence that there is a group of unelected “true conservatives” who are acting as a kind of Star Chamber that will determine what Presidential orders will or will not be followed shows us even more clearly that the GOP consistently chooses party over country. And if the rumors that this op-ed piece came out of Vice President Pence’s office are actually borne out, then the “soft coup” of the Star Chamber has actually morphed into something harder and more sinister.

Of course, the reason Republicans will not act to fulfill their constitutional duties of oversight and a co-equal branch of government is that they are perfectly happy with the current Star Chamber arrangement. As the author of the op-ed piece happily admits, “Although he was elected as a Republican, the president shows little affinity for ideals long espoused by conservatives”. But that is offset by “bright spots that the near-ceaseless negative coverage of the administration fails to capture: effective deregulation, historic tax reform, a more robust military and more.”

That “more” includes being able to pack the Supreme Court in order to lock in these “true conservative” values for the next two generations at least. That opportunity was only made possible by Senate Republicans refusing to fulfill their constitutional duties to give a hearing or a vote to Merrick Garland and potentially ramming through Brett Kavanaugh using a sham, hurried, and corrupt process, once again illustrating their consistency in putting party ahead of the country and the Constitution.

As the writer of the op-ed claims and the Woodward book confirms, the Star Chamber arrangement has derailed some of Trump’s worst impulses. President Assad was not assassinated and we did not lose our early warning system for a North Korean nuclear attack because Trump wanted to tear up the trade agreement with South Korea. But it has also enabled arguably the most corrupt administration since Hoover. Nor has it stopped Trump’s penchant for extortionist trade wars that are impacting American farmers and workers and threatening global trade.

With the executive and legislative branches of the government in constitutional disarray, things are only slightly better in the judicial. As I’ve described, “true conservative” Republicans have figured out that, without the enforcement power of the executive branch, judicial decisions have no real power. That was true in Little Rock in 1957. Today, the GOP basically ignores court decisions that restrict their political power and then use that power to pack the courts with Federalist Society hacks who will ensure that “true conservative” values can never be challenged.

No better example of this tactic is what has happened in North Carolina, where voters in that state have not been able to vote in election districts that have not been ruled an illegal gerrymander since 2010. Yes, voters in that state have been disenfranchised in every election this decade. And, with that gerrymandered political power, North Carolina’s Republican party has used every lever to further disenfranchise Democratic voters, remove justices who block that effort, and try to pack the courts with ideological hacks.

Paul Campos recently wrote, “Donald Trump is unfit to be president of the United States. I believe it would be very difficult to find a single person of any actual intelligence who would disagree with this blindingly obvious conclusion. And reaching that conclusion has nothing to do with ideological commitments per se: if anything, the Republican elites would be the happiest people in America, if there were only some magical method for terminating Trump’s presidency without incurring the wrath of the mob. But it can’t be done because the Constitution doesn’t work any more. Donald Trump became president, and he will remain president for at least another two and a half years, because the nation’s foundational legal document has become fundamentally dysfunctional in the age in which we now live.”

Eugene Robinson is emblematic of those recognizing the severe constitutional crisis we are currently enduring. And he offers what’s really the only solution. “[I]it’s clear that we’re already in a constitutional crisis of frightening proportions. The Cabinet will not act. Congress, under GOP control, will not act. The internal ‘resistance’ can only do so much. Voters are the last line of defense. You must save the day.” That message was reiterated yesterday in Obama’s eloquent return to partisan politics.

But even on that electoral front, the Constitution is failing us. The Electoral College is a vestige of America’s original sin, slavery. This Rube Goldberg contraption was designed to protect the slave states as it expanded their political power by counting their non-voting slaves, which was a majority of the population of those states, as three-fifths of a person as far as the Electoral College was concerned. The last two Republican presidents lost the popular vote yet still became president because of the Electoral College. And the prospects for similar GOP presidential victories for the foreseeable future are incredibly high as the urban/rural divide in this country increases.

The same small state bias in the Electoral College exists in the US Senate. One political scientist estimates that in the near future 30% of the population will live states that will have 70 Senate seats. That leaves the other 70% of the American population as a potentially permanent minority in the US Senate. Even getting rid of the filibuster would not stop that 30% from having veto power over every piece of legislation.

Similarly, even in the House of Representatives, which is the most truly democratic federal body, extreme partisan gerrymandering, impotent courts, and that same urban/rural divide have made it so that Democrats have an inherent and formidable disadvantage. One study predicts that Democrats will have to win the popular vote for the House by a massive 11 percentage points in order to gain just a slim majority in the upcoming midterm elections. Any election with that kind of differential is, by definition, a landslide. But, for Democrats, it may take a landslide or, at minimum, a wave to gain just a slim majority. I’m consistently amazed at press articles on the generic ballot that blithely point out the inherent disadvantage that Democrats must overcome in order to win the House as though it is some law of nature and not a serious flaw in our current electoral process.

The situation is no different in state legislatures. In Virginia last year, Democrats won the popular vote in that state by 11% yet still remained a minority in the Virginia House of Delegates. Similar unbalanced results have occurred in Wisconsin and North Carolina in recent years.

After over 230 years, it’s a real question as to whether the Constitution has “become fundamentally dysfunctional in the age in which we now live”. Worse, the Constitution itself is an impediment to actually reforming the Constitution. Constitutional amendments are incredibly difficult to pass, as the framers designed and with good and valid reasons. But just look at something as basic as the Equal Rights Amendment, which still hasn’t managed to muster the required number of states to ratify it, even though the deadline has long passed. On the other hand, the alternative of a Constitutional Convention, which is also incredibly difficult to call but perilously closer than most realize, opens up the probability of a free-for-all for special, especially moneyed, interests.

What we are left with is a sclerotic governing document that is unresponsive to the needs of our time. An unfit or criminal President is nearly impossible to remove. Legislation that addresses current problems is virtually impossible to pass because of the number of veto points built into the system, especially the enormous hurdle of a presidential veto. The judiciary is both beholden to political power and impotent to restrain it. The electoral system has entrenched a minority party into near permanent majority status. It’s just not working.

Corey Robin has a more positive take on our current situation. He looks at our current turmoil and the destruction of democratic norms not so much as a reflection of the collapse of democracy but as an indication of a massive political realignment. He writes, “The ways these regime crises…get resolved is through realignment, where not only are the representatives of the old order are voted out of office, but, over time, and through a few election cycles, the fundamental governing commitments of the regime get tossed aside…And, as that happens, what we see is the founding of a new regime and the creation of new norms. What norm erosion may be a sign of, then, is not the breakdown of democracy but a reconstruction of the basic manners and mores that have governed out politics for the last however many years.”

And Robin is certainly has a point. The American experiment has survived existential crises in the past. The Civil War is obviously the greatest challenge the country has ever faced and yet somehow we managed to survive. That crisis precipitated the passage of the Reconstruction Amendments that abolished slavery, provided equal protection under the law, and expanded voting rights. But it’s easy to forget that those amendments were only passed because the South was basically under occupation and subsequently were largely made moot by the Cruikshank decision, the Compromise of 1877, and the emergence of Jim Crow.

We survived the Gilded Age and the Great Depression which precipitated FDR’s New Deal. But it’s easy to forget that the Supreme Court ruled FDR’s two most important pieces of initial recovery legislation in 1933, the Agricultural Adjustment Act and the National Industrial Recovery Act, unconstitutional on the grounds that it was a broad overreach of executive power. That prompted Roosevelt’s failed court-packing scheme and the deadlock was only broken when a conservative justice finally broke ranks and ruled a state minimum wage was constitutional.

And chances are we will survive the aftermath of the Great Recession and the rise of Trumpism. But my fear is that the impediments of our Constitution will make Robin’s realignment a longer and more tortuous process than is healthy. The structural electoral impediments will mean the “old order” will be able to hang on to political power and block the emergence of a new order with a minority of votes. And even when the old order loses political power, the Supreme Court, currently filled with young members of the old order, will block any progress the new order wishes to make, just as the Cruikshank decision laid the groundwork for Jim Crow and essentially re-established the old order in the South that had existed before the Civil War and Reconstruction.

This time, I fear, there will be no conservative justice to break ranks. And a frustrated electorate, whose youngest members are already skeptical of democracy, will abandon our democracy entirely. Frighteningly, less than one-third of Americans born after 1980 believe it is essential to live in a democracy. The longer the old order hangs on, the more impatient they will get, and the greater the threat to our democracy. Certainly, the idea that what is essentially the majority can endure a similar wait like the near century that blacks endured Jim Crow is unthinkable.

For the moment, however, Eugene Robinson is correct. “Voters are the last line of defense. You must save the day.” Let’s pray we can.

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Originally published at tidalsoundings.blogspot.com on September 9, 2018.

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