Deference to the Constitution, as Trump’s depredations make plain, is the indispensable foundation of American democracy. But deference is different than reverence. Constitution Day of 2022 arrived with more reasons to be frustrated by the defects of our national charter than at any time in generations.
The occasion underlined two related Trump-era paradoxes that likely will shape our politics long after Trump’s shadow lifts.
First, Trump is properly seen as a constitutional menace, but from a progressive perspective many of the most offensive features of his tenure were not in defiance of the Constitution. Instead, they flowed directly from its most problematic provisions. He was in office in the first place because the presidency is chosen by the Electoral College rather than by the popular vote. His influence will live for decades because partisan manipulation of the Senate’s judicial confirmation power gave him three Supreme Court justices, who have no term limits and face no practical mechanisms of accountability. Like some other presidents, but more so, he used the Constitution’s absolute pardon power for nakedly self-interested reasons. In short, Trump may be an enemy of the Constitution but he is also the president who most zealously exploited its defects.
That leads to the second paradox. Anyone who is not a Trump backer properly bemoans the breakdown in constitutional consensus that allows his supporters to tolerate or celebrate his election denialism, in addition to other efforts to insulate himself from rule of law. Long-term, however, the more bracing challenge to constitutional consensus is likely to come from the left, from believers in activist government.
Correcting or circumventing what progressives reasonably perceive as the infirmities of the Constitution, in fact, seems likely to be the preeminent liberal objective of the next generation. Progress on issues ranging from climate change to ensuring that technology giants act in the public interest will hinge on creating a new constitutional consensus. Trying to place more sympathetic justices on the Supreme Court is not likely to be a fully adequate remedy. There are more fundamental challenges embedded in the document itself — in particular the outsized power it gives to states, at a time when the most urgent problems and most credible remedies are national in character.
To be clear, there is much that is wondrous and enduring in the Constitution. The things that are weak could be corrected by amendments that would easily draw majority support from a national electorate. In addition to the list above — altering or abolishing the Electoral College, term limits for the Court, creating some check on abuse of the pardon authority — there are other obvious targets. A constitutional renovation would clean up the infuriatingly murky language of the Second Amendment to make clear if effective gun control is allowed if the guns have nothing do with a “well-regulated militia.”
Here, though, is where the breakdown in constitutional consensus becomes potentially climactic — as it did during the Civil War, and threatened to in the New Deal. Popular majority or no, most of those amendments would be opposed by conservatives — which under the terms of the existing Constitution means they likely would not pass. It takes three quarters of the states to approve an amendment, a provision that gives many small, conservative states wildly disproportionate power over the fate of the nation.
This is hardly a new problem, but it is one that threatens to reach a breaking point. The political scientist Norman Ornstein has popularized an arresting statistic, one that is validated by demographic experts. By 2040, 70 percent of Americans will live in just 15 states. That means 30 percent of the population — coming from places that are less diverse and more conservative — will choose 70 senators. Already each senator from Wyoming, the least populous state, exercises his power on behalf of less than 600,000 people, while each senator from California, the most populous, represents nearly 40 million. This distortion of democracy, already hard to defend, could become the defining feature of national life.
This distortion, far more than Trump’s vandalism, is the most likely the source of a true constitutional crisis in the years ahead.
But isn’t this exactly what the Founders had in mind, with their conviction that the country was a union of states that retained ample sovereignty? One answer is that the current conflicts plaguing U.S. democracy may not be at all what they wished for. The great concern of the framers was creating a system of government with the capacity for self-critique and self-correction. Several features of the Constitution now interfere with that capacity.
Another answer, however, is: Who cares what they thought then? The Constitution was written at a time when states were indeed foundational — a central part of people’s identity and way of life. This has not been true for nearly a century, as both national government and national identity have become stronger. States are still essential administrative units. But the rural conservative voter in California — which had more Trump voters than any state, even as he lost it by nearly 30 points — has more in common politically with a rural conservative from South Dakota than either have with urban progressives in New York or San Francisco.
The most effective leaders have not cleaved to constitutional understandings that have been overtaken by new moral imperatives. Abraham Lincoln used the exigencies of war to eradicate slavery, even as slavery until that time had been regarded as a protected constitutional right. “By general law life and limb must be protected; yet often a limb must be amputated to save a life; but a life is never wisely given to save a limb,” Lincoln wrote in a famous letter. “I felt that measures, otherwise unconstitutional, might become lawful, by becoming indispensable to the preservation of the constitution, through the preservation of the nation.”
So what will happen this time, when amending the Constitution seems improbable but living indefinitely with outdated provisions seems intolerable?
History suggests multiple possibilities. A decisive conflict is one answer — the reason talk of a “new Civil War” is increasingly common. Harvard Law professor Noah Feldman (who gave his Constitution Day speech this year at Brigham Young University) wrote in last year’s “The Broken Constitution: Lincoln, Slavery, and the Refounding of America” that Lincoln did not so much save the Constitution as “something more dramatic and more extreme: the frank breaking and frank remaking of the entire order of union, rights, constitution, and liberty.”
But there are other ways short of violent rupture to survive those moments, as now, when the Constitution no longer reflects the imperatives of the moment. One of those ways is when artful improvisation creates a new consensus. The Supreme Court struck down much of FDR’s initial program, but the New Deal’s core assumption — that we live in a national economy with a robust and responsive national government — prevailed, helped along by a dramatically new understanding of the interstate commerce clause. Another way to survive is good luck. In the Cold War, presidents had (and still have) a power never contemplated in the Constitution — the ability to blow up the world with nuclear bombs on command, in minutes, with no approval by Congress or anyone else.
Conflict, improvisation, good luck — likely all three will be required for the country to survive the coming constitutional showdown. If successful, we can someday go back to not paying much attention to Constitution Day.