When the House Intelligence Committee began holding hearings as part of the impeachment inquiry into President Trump, some media coverage suggested the proceedings lacked enough “pizzazz … to capture public attention.” It turned out that hearings produced more than their share of bombshells — from EU ambassador and Trump megadonor Gordon Sondland’s admission that there was a “quid pro quo,” to State Department official David Holmes’s testimony about overhearing a phone call in which Sondland assured Trump that Ukraine would move ahead with the investigations Trump had requested, to former National Security Council official Fiona Hill’s conclusion that Sondland was carrying out a “domestic political errand” for the president that diverged from the U.S. national interest. When the Committee concluded its hearings, the evidence was damning and largely uncontested: Trump appeared to have been part of a scheme to extort a foreign country into sabotaging the US presidential election to his benefit.
Yet, even with the evidence on public display, it remains next to impossible to imagine Republicans taking meaningful action. Even Republicans seen as most likely to break from their party are signaling support for Trump. Rep. Will Hurd (R-Texas), a member of the Intelligence Committee who is retiring from Congress and has at times criticized the president, said that, while the president’s actions had been “inappropriate, misguided foreign policy,” he did not see evidence of an impeachable offense. Hurd’s statement can reasonably be seen as an indication that few (if any) Republicans in Congress will vote to impeach or remove the president from office.
Some observers describe what we are seeing as a crisis. In fact, what we are living through is constitutional failure. The system created by the framers is not doing the job it was designed to do, particularly in the current circumstances: We are faced with a corrupt president who rejects the very idea of legal limits on his power.
Our constitutional democracy is based on free and fair elections, individual rights, independent courts, and the rule of law—the idea that no one is above the law. Trump rejects all of these bedrock principles. He has tried to undermine free and fair elections (most recently demonstrated in the Ukraine scandal.) He threatens his critics with prosecution and lawsuits, disdaining the notion of First Amendment speech and press protections. He seeks to delegitimize judges who rule against his policies. He rejects the idea that ordinary rules and laws apply to him and his allies, declaring (erroneously) that under Article II of the Constitution, “I have the right to do whatever I want as president.”
Trump poses an existential threat to our system of government — and yet he remains in office. In a functioning system, Republicans would have already joined Democrats in taking action to remove Trump from office — just as Republicans stood against Nixon in 1974. In our failed system we are reduced to waiting to see how far Trump will go before congressional Republicans will act — if they ever do.
Every system needs a way to protect itself, and our constitutional system provides (in theory) all the tools needed to deal with the direct threat Trump poses. Congress is fully empowered to remove a corrupt president from office. But congressional Republicans, by refusing to act, render those tools useless.
James Madison believed that the constitutional system would prevent the accumulation of too much power in any one branch of government. If one branch exceeded the limits of its power, it would be reined in by the others. In order for this to work, Madison famously wrote, “Ambition must be made to counteract ambition.” In other words, if the president engaged in a power grab, members of Congress would use constitutionally available tools to check him or her —not out of moral rectitude but because legislators would be worried about ceding their own power to an ambitious president.
The system is failing because Republicans are placing partisan concerns—their own loyalty to Trump or fear of the political costs of defying him — ahead of their constitutional responsibilities. The system Madison helped design cannot function properly under these circumstances.
It is important to forthrightly describe the reality of constitutional failure for two reasons.
First, it emphasizes the emergency we face. If he does not face consequences, Trump will feel emboldened to do precisely as he chooses, without regard to ethical or legal limits. We’re seeing this, for instance, with Trump’s moves to undermine the rule of law within the U.S. military by pardoning the Navy SEAL convicted of taking a “selfie” with the corpse of a teenage boy who fought for ISIS.
We can’t count on his removal from office by election as a foolproof safeguard, especially when Trump’s misconduct in the Ukraine scandal was focused squarely on an illicit attempt to tilt the electoral scales in his favor.
Second, describing what has occurred as failure points out that we need a new constitution, one that will be designed to strengthen our democracy against future existential threats. No system is guaranteed to succeed, but a failed one demands replacement.
Today’s Republican Party is an anti-democratic, authoritarian party that seeks to gain — and has gained — power without winning a majority of votes. To this end, it pushes voter suppression measures and takes advantage of structural defects in our system. Gerrymandered districts can allow the GOP to win a minority of the votes and still control the House. The Electoral College gave Trump the presidency 2016, even though he lost the popular vote — a feat he stands a realistic chance of repeating in 2020. And though deeply unpopular, he enjoys majority support in a Senate that does not reflect political preferences of the majority of Americans, but instead allows a minority in sparsely populated states to wield power.
Making the electoral system more majoritarian could force the Republican Party to abandon its anti-democratic approach if it wishes to win. There is no guaranteed way to prevent would-be authoritarians from gaining power. After all, a very popular authoritarian could easily win the popular vote. But clearly, the authoritarianism of our current president is not popular with Americans: Trump’s approval ratings are consistently in the low 40s. Constitutional change would strengthen liberal democracy against an authoritarian party. It is worth trying.
With this goal in mind, a new constitution could address some of the anti-democratic features of our current system, including:
ending the Electoral College.
reforming or replacing a Senate that gives the 435,000 voting-age people in Wyoming as many votes as the 17,524,000 in Texas.
eliminating partisan gerrymandering.
protecting the right to vote against voter suppression efforts.
dealing with the corrupting influence of our current campaign finance system.
A new constitution could also be aimed at shoring up the rule of law, including by protecting the independence of the Department of Justice and replacing the current impeachment process with something capable of actually holding a lawless president to account. One idea to explore would be expressly giving the DOJ independent prosecutorial authority over the president. Another would be providing a process for triggering new presidential elections — say, based on a three-fifths vote in the House and Senate.
Obviously, these kinds of changes are not politically plausible at the moment, but they need to be on our agenda — unless we are willing to risk another attack on the system from a future president. We need to begin talking about how to create the conditions needed for a new constitution, one giving us better odds of warding off the next authoritarian threat — assuming we survive the one posed by Trump.