On Thursday, the Supreme Court gathered to consider whether Donald Trump, as president, enjoyed immunity from prosecution for attempting to overturn the 2020 election. Even if the justices eventually rule against him, liberals should not celebrate the Constitution as our best bulwark against Mr. Trump. In fact, the document — for reasons that go beyond Mr. Trump, that long preceded him and could well extend past him — has made our democracy almost unworkable.
For years, whenever Mr. Trump threatened democratic principles, liberals turned to the Constitution for help, searching the text for tools that would either end his political career or at least contain his corruption. He was sued under the Constitution’s emoluments clauses. He was impeached twice. There was a congressional vote urging Vice President Mike Pence to invoke the 25th Amendment to proclaim Mr. Trump unfit for office. More recently, lawyers argued that the states could use the 14th Amendment to remove Mr. Trump from the ballot because of his role in the Jan. 6 attack.
Each of these efforts has been motivated by a worthy desire to hold Mr. Trump accountable for his actions. Each of them has failed. As we head into the heat of an election season, we need to confront a simple truth: The Constitution isn’t going to save us from Donald Trump. If anything, turning the page on the man — and on the politics he has fostered — will require fundamentally changing it.
It is not just that Mr. Trump would never have been president without the Electoral College. Think about why those previous efforts to use the Constitution to hold Mr. Trump accountable failed. Impeachment processes collapsed in the Senate because it lopsidedly grants power to rural, conservative states. The Supreme Court was able not only to keep Mr. Trump on the ballot in Colorado, but also to narrow the circumstances in which disqualification could ever be used, because Republicans have been able to appoint a majority of the justices on the court, despite losing the popular vote in seven of the past eight presidential elections.
For years, liberals were squeamish about acknowledging these facts, perhaps out of habit. While most countries view their documents as rules for governing — rules that may become outdated and can be reworked if necessary — our own politicians routinely tell a story of American exceptionalism rooted in our Constitution. It is a sacred document that, as Barack Obama once put it, “launched America’s improbable experiment in democracy,” grounded on shared principles of equality, self-government and personal liberty.
In these Trump years, as polls have shown some Americans drifting away from those shared ideals, liberals are clinging even more tightly to the document as a symbol under threat.
A year and a half ago, for instance, when Mr. Trump called for the “termination” of existing election rules, liberals were understandably outraged. Representative Don Beyer of Virginia labeled him an “enemy of the Constitution.” Andrew Bates, a spokesman for the White House, proclaimed that “attacking” the “sacrosanct” document was “anathema to the soul of our nation.” The problem is that these pledges of constitutional fealty can’t substitute for actually convincing the public of the importance of inclusive democracy.
Rallying around the Constitution means embracing the very text that causes these pathologies. Its rules strengthen the hand of those indifferent or even opposed to the principle of one person, one vote. After all, those rules smooth the path for a Trumpian right to gain power without winning over a majority. And they throw up numerous roadblocks to accountability — even when presidents attempt to subvert elections.
The shock to the constitutional system that Mr. Trump represents didn’t start, and won’t end, with him. The best — and perhaps only — way to contain the politics around him is to reform government, so that it is far more representative of Americans. The goal is to keep authoritarians from ever again gaining power without winning a majority and stacking powerful institutions with judges and officials wildly out of step with the public. But this requires extensive changes to our legal and political systems, including to the Constitution itself.
We need new campaign finance laws and expanded voting rights. We need to end the Senate filibuster, eliminate the Electoral College, combat gerrymandering and partisan election interference, adopt multi-member House districts and add new states like Washington, D.C. We need to reduce the power of the Senate, perhaps even moving toward a more ceremonial “council of revision,” as Jamelle Bouie has proposed.
Such reform requires pushing back against the extreme power of the Supreme Court through measures like judicial term limits and expansion of the size of the court. And an easier amendment process would give Americans the power to update their institutions and incorporate new rights into the document, rather than having to rely only on what judges decide.
No doubt these changes can seem politically unfeasible. But it would behoove Americans concerned about the dangers posed by Mr. Trump to take seriously such a comprehensive agenda, if for no other reason than because many on the right are already working on constitutional reforms of their own.
Groups like the Convention of States (which counts Gov. Ron DeSantis of Florida as a vocal supporter) have succeeded in getting 19 of the 34 states required under Article V of the Constitution to agree to convene a new constitutional convention. The Convention of States package of potential changes includes giving “a simple majority of the states” the ability “to rescind actions by Congress, the President, or administrative agencies,” empowering Republican officials to nullify any policies they oppose, regardless of whether those policies enjoy vast national support. As David Pozen of Columbia Law School has written, the right has even figured out how to run this second convention in a way that would ensure that state officials, again disproportionately Republicans, control what gets proposed and how voting proceeds.
These efforts will persist even if Mr. Trump is no longer on the political stage. And so long as liberals refuse to confront what needs to be done to fix the Constitution, his supporters and groups like the Convention of States will control that debate.
It now falls to Americans to avoid learning the wrong lessons from this moment. Mr. Trump may lose at the ballot box or be convicted in one of the four criminal cases he faces, including the one that started this month in Manhattan. If he is held accountable, it will not be because the Constitution saved us, given all its pathologies.
Aziz Rana is a professor of law at Boston College and the author, most recently, of “The Constitutional Bind: How Americans Came to Idolize a Document That Fails Them.”
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