[Editor’s Note: In light of this week’s inauguration, I-CONnect is pleased to feature a five-part symposium on the state of US constitutionalism after Trump. The introduction to the symposium can be found here.]
—Sanford V. Levinson, The University of Texas School of Law
Changes in administration inevitably present another test case for determining the extent to which, at bottom, we are structuralists or believers in one version or another of “great man (or woman)” theory. That is, if one views politics as a tale of personal heroes and villains, then the central task is to get rid of the latter and replace them with the former. Certainly we have not had a shortage of candidates for villainy over the past four years, led, for many of us, by President Donald J. Trump and Senate Majority Leader Mitch McConnell. In the first week of January, certainly, Trump has taken unequivocal pride of place as the villain-in-chief, given his role as the chief instigator of the insurrection at the Capitol on January 6. Even the Wall Street Journal now pleaded for his resignation, and even pundits like former Reagan speechwriter and longtime Wall Street Journal columnist Peggy Noonan confessed in her column of January 9 that she is terrified of what Trump might do in his last ten days in office. Noting that she resisted any comparisons of Trump to Hitler, she nonetheless compared the present moment to Hitler’s retreat to his bunker after Germany’s clear defeat and his temptation to destroy as much as he could before taking his own life. Even some (few) Republicans openly suggested that the 25th Amendment be invoked to make Mike Pence the president for the remaining days before Joe Biden is sworn in on the 20th, though that would require Pence himself to take the lead, which he seemingly has no interest in doing.
As terrible as Trump’s recent actions have been, it should also be remembered that his own toxic mixture of malevolence and incompetence—captured simply by his failure to wear a mask and to encourage his followers to do likewise–has contributed quite literally to the death of thousands of Americans and a level of anxiety by millions more who do not have the advantage of class privilege that is possessed by a tenured law professor (whose nest has long since been empty of children to take care of). So it is easy to rejoice that January 20 will bring (though not soon enough) Joseph R. Biden to the White House and, one might hope, Donald J. Trump to endless depositions with the New York District Attorney and, perhaps, even residence in a jail cell.
But if one believes, as I do, that the malaise of contemporary American politics is caused, to some significant degree, by the structures imposed on Americans by the Framers in 1787, then my rejoicing is limited. Biden’s election (and inauguration) do literally nothing to repair what my wife and I, in a book ostensibly written for teenagers, called Fault Lines in the Constitution. As with tectonic plates buried far below the surface that, when moved, can cause catastrophe to those of us on the surface, so do the various constitutional fault lines continue to threaten us. Indeed, the very fact that the thoroughly repudiated Donald J. Trump could enjoy all of the legal powers of the presidency until January 20, unless an overnight impeachment or invocation of the 25th Amendment intervenes, is itself a fault line. Not for a single moment did the United States benefit from the fact that he held his office—and all of its powers—for eleven weeks after Election Day and, for that matter, more than a month after the state electors met in their respective state capitals and cast their votes making Biden the clear and unequivocal president-elect. But, of course, we have that hiatus between repudiation and actual loss of office only because we have the dreadful institution of the electoral college. We should be more aware than I suspect most of us are about how close we came to the genuine disaster of another Donald Trump electoral-vote victory, had relatively small percentages of votes shifted in Pennsylvania, Michigan, Wisconsin, Georgia, and Arizona. That would have rendered irrelevant the fact that Biden received in excess of seven million votes more than Trump.
Would the United States have survived such a result, at least without significant (and arguably merited) violence protesting against such a travesty of what we are pleased to call “democracy”? Like many, I have become almost obsessed by Lin-Manuel Miranda’s Hamilton, in part because of its clarion call to “rise up” when faced with what is thought to be an illegitimate government. Why would anyone have accepted Donald J. Trump’s victory, had it occurred, as legitimate? One might ask the same question, of course, about 2016 or 2000. One answer is that in those earlier years one really didn’t know how bad the winning candidate was; at least some people believed that Donald Trump would “grow” into the demands of the office. But he did not. And he probably would have been re-elected had he exhibited any real leadership regarding Covid-19 and, even more certainly, had Pfizer and Moderna announced, in October, that they had indeed achieved the equivalent of a secular miracle in creating effective vaccines in such a relatively short time and thanked Trump for creating Operation Warp Speed. Perhaps we should count ourselves as fortunate that neither of those events occurred, and so we were saved from a second Trump term. Still, we had to wait as a country for two long weeks after the official certification early in the morning of January 7, following the insurrectionary attack on the Capitol, because that’s just what the text of the 20th Amendment requires.
Biden is now president, and we can rejoice. But what is it exactly that we expect to happen? Does anyone seriously expect Biden to be able to pass any truly innovative, let alone “audacious” programs through Congress as it’s currently organized? As a matter of cold fact, the November elections were a near-disaster for the Democratic Party. Biden’s victory was a testament to the perceived awfulness of Donald J. Trump (though he still received some 74 million votes) and not, alas, to the embrace of Democratic Party programs. Nancy Pelosi is presiding over a herd of cats that is ever more suspicious of one another in terms of the tensions between “progressive” and “moderate” representatives. Thanks to Georgia, which conducted what may well turn out to be a truly historic election on January 5, Democrats can prevail in the Senate so long as Vice President Harris becomes more-or-less a permanent fixture as president of the Senate. (That only underscores, incidentally, the degree to which the Vice President is the duck-billed platypus of the American constitutional order, being suspended somewhere between the legislative and executive branches, presumably with duties to both. But hopes she might have to be a truly vigorous policy-planning partner with Biden might have required spending far more time at the White House than she will in fact be able to do.)
However, if the Democrats do not immediately eliminate the filibuster with regard to ordinary legislation, then it really will not matter if they enjoy a notional majority. Even if they can, with Harris’s vote, be assured of confirming Biden’s nominees; when Justice Breyer retires, as he surely will (and must) early in Biden’s term, Biden will presumably be successful in naming his successor given McConnell’s inability to repeat his refusal even to grant Merrick Garland a hearing in 2016. But even as minority leader, McConnell will be able to do what he did during the Obama Administration even prior to 2015, which is to make it as difficult as humanly possible for any legislation even to come to a vote. It appears unlikely that Democrats would vote en bloc to eliminate the filibuster; indeed, Biden, with his nostalgia for the Senate of his youth, probably would view that as a form of “constitutional hardball” that would simply further the polarization that has contributed to what Jack Balkin calls “constitutional rot” that is undermining the American constitutional order. Effective governance almost certainly requires “hardball,” and we will find out whether Biden is really interested in playing that game or if, as manager, he can persuade those purportedly on his team to accept his direction.
And then there’s the Supreme Court, in which Chief Justice John Roberts is, astoundingly, now the “median justice” between five truly rabid conservative Republicans and three relatively liberal Democrats. Given that the 2020 election was only a repudiation of Donald Trump as a person and not, alas, the rejection of Trumpism as an informing ideology for the GOP, one cannot rely on “public opinion” models to predict a chastened, more “moderate,” Court. They may indeed view themselves as harbingers of a happier future, when the 2024 candidate, whether Tom Cotton, Marco Rubio, or Nikki Haley—Josh Hawley and Ted Cruz have probably discredited themselves by collaborating with the insurrectionists—will sweep aside whichever Democrat is running. Surely that will not be an octogenarian Joe Biden. And we should not at all disregard the possibility that Trumpism sans Trump will be restored to power. That might be helped along, incidentally, by the fact that Democratic failure in many state elections, including that in Texas, serves to assure that the 2020 round of redistricting will continue to feature ever-more-sophisticated gerrymanders designed to minimize the possibility of Democratic electoral success.
What the United States needs more than anything else at present is a serious discussion of the adequacy of its constitution to the pressing needs of the moment (and the foreseeable future). Alexander Hamilton began Federalist 1 by suggesting that it was the world-historical role of Americans to demonstrate that it was possible for a free people to engage in genuine “reflection” and then “choice” as to how they wished to be governed. The question is whether that was a one-time exercise. Unfortunately, Americans have tended to forego any real deliberation, and consequent choice, in favor of what can only be described as a “cult” of the American Constitution typified by the “veneration” for which Madison called in Federalist 49. Unfortunately, one of the responses to the January 5 insurrection was repeated invocation of the Constitution as a sacred text, fidelity to which will be the cure for our acknowledged ills. That is false.
This de-facto brain-death is certainly helped along by what is probably the single worst structural feature of the Constitution, the Article V amendment clause that, as a practical matter, makes significant amendment difficult to the point of impossibility. Thirteen states, who could, theoretically, comprise less than 5% of the entire national population, could veto any proposal sent them by Congress. The Equal Rights Amendment is the best illustration of this point, inasmuch as its ratification by a majority of states with a majority of the population was unavailing. As a matter of fact, one can view the ERA, however desirable, as a kind of symbolic window dressing, unlikely to have any major impact. That is not true, however, of proposals to reform the structural constitution. If one believes, for example, that the current Senate, in which Wyoming (with 550,000 residents) has the same two votes as California (with almost 40 million population), is illegitimate in terms of any plausible 21st century theory of democracy, there is really nothing that can be done about it. It’s not even that small states would be guaranteed to veto any proposal, assuming it could get through Congress, to alleviate the malapportionment. Article V guarantees that every state would have to agree to the changed allocation, and no one believes that is possible. Herman Kahn during the 1960s wrote of “doomsday machines” that would trigger thermonuclear war without the intervention of human agents. Article V in its own way has become such a doomsday machine by discouraging even the discussion of constitutional reform. “Abandon all hope ye who enter here” seems a fitting slogan for the contemporary American version of a constitutional inferno. It is not clear that a “great leader” can rectify this basic structural problem unless, paradoxically or not, the “great leader” educates the public to accept the proposition that the Constitution of 1787 is dangerously outdated. What it really needs if significant amendment, but if, because of Article V, it can’t receive it, then the next alternative is simply to ignore its most elemental stricture. Of course, there’s a precedent for that, the 1787 Constitution, which chose to ignore the fact that Article XIII of the Articles of Confederation required the unanimous assent of all state legislatures for any amendment. That de-facto insurrectionary act was surely aided by the fact that it had the support of George Washington and many other true heroes of the successful national liberation movement that we call the American Revolution. For better or worse, we lack any comparable “great men or women” today. The alternative to yet more demagogic leadership can only be a revival of a civil republican spirit in which “we the people” will indeed be able to engage in “reflection and choice” about what structures will best suit us in our own lives. One cannot be very optimistic that this will occur.
Suggested citation: Sanford V. Levinson, Symposium on The Legacies of Trumpism and Constitutional Democracy in the United States — Can “Leadership” Surmount the Obstacles Presented by the U.S. Constitution to Effective Governance? Reflections on our Present Discontents, Int’l J. Const. L. Blog, Jan. 24, 2021, at: http://www.iconnectblog.com/2021/01/symposium-on-the-legacies-of-trumpism-and-constitutional-democracy-in-the-united-states-can-leadership-surmount-the-obstacles-presented-by-the-u-s-constitution-to-effecti/