The Constitution must be defended — except when it must be jettisoned.
We’ve heard much upon the anniversary of January 6 about how Donald Trump wanted to distort the Constitution to get Vice President Mike Pence to try to throw the election to him a year ago.
And this was, indeed, a cockamamie, counter-constitutional scheme. Neither the framers of the Constitution nor the drafters of the 12th Amendment, the provision in question that day, intended to invest unilateral power in one person to decide presidential elections.
Indeed, besides Pence, who refused to buckle to Trump’s pressure, the biggest hero of the post-election period was the constitutional system itself. Once again, it proved a durable vehicle of representative government and a frustration to anyone hoping to seize and wield illegitimate power.
Its distribution of power via federalism to the 50 states, its separation of powers at the federal level and its provision for an independent judiciary made it impossible for Trump allies to press one button and reverse the outcome of the election.
So, it’s bizarre for the Democrats and the left to profess to consider a possible repeat by Trump in 2024 an ongoing national emergency, and yet establish more precedent for a president of the United States acting unilaterally beyond his constitutional powers (via Biden’s eviction moratorium and OSHA-imposed vaccine mandate); push to nationalize the country’s voting rules; play with the idea of destroying the legitimacy of the Supreme Court through court-packing; and generally undermine and tear at the fabric of the Constitution as a racist relic unworthy of the 21st century.
If Trump 3.0 is an existential threat, they should want to make it absolutely clear that all presidents have to strictly abide by the Constitution in all circumstances. They should seek to maintain a highly decentralized election system. They should work to buttress the standing of the Supreme Court. And they should hold up the Constitution as a time-tested bulwark of our liberties.
Instead, we’ve seen the opposite — because doing these things makes it harder to pursue the progressive project.
The academic Corey Robin stated it with admirable forthrightness in an essay for Politico magazine headlined, “Republicans Are Moving Rapidly to Cement Minority Rule. Blame the Constitution.”
This has become a mainstream view on the center-left, where it is considered an outrage that the Founders didn’t foresee that a left-wing Democratic Party would have trouble competing in many rural states and therefore be at a disadvantage in the Senate and the Electoral College.
The past few years should have given progressives a new appreciation of federalism, though — it allowed, for instance, deep-blue California to keep governing itself largely according to its own lights even when Trump was president.
That the Constitution makes it hard to get things done in Washington, another charge in the indictment against it, also serves an important function. It forces parties to win big majorities if they want to forge transformational changes, or to mobilize public opinion behind its agenda.
Otherwise, the gravitational force of the system is toward consensus. We see this in the debate over the sweeping Democratic voting bills. The Democrats are unlikely to get these bills through with their razor-thin, probably transitory majorities, although there is clearly an opening to pass reforms to the Electoral Count Act — changes that would be bipartisan and actually responsive to the most important, Pence-centric element of Trump’s post-election push in 2020.
This is considered intolerable, though, and Democrats are entertaining ideas — whether blowing up the filibuster, packing the Supreme Court, adding new states for partisan advantage — that violate the kind of norms they always cited in opposing Trump.
The New York Times recently ran an editorial arguing that every day is January 6. That is clearly absurd. But the Constitution is indeed always under threat, and it falls on its friends to defend it from all challengers.
Rich Lowry is editor of National Review.