The United States is living through a remarkably convulsive period in its history. Donald Trump has reshaped the American presidency, and his norm-shattering behaviour has tested the US Constitution in profound ways. He has placed stress on points of constitutional vulnerability, particularly when it comes to judicially unenforceable norms of respect for fact-based reality, for orderly decision-making and for investigatory and prosecutorial independence.
Trump’s rise to power has also raised questions about some of the Constitution’s most solidly entrenched provisions. His victory in 2016 highlighted the dangers posed by the Electoral College in the face of changing demographic realities, and now his presidency is testing the viability of the impeachment process to cope with a demagogue who has captured the machinery of an entire political party and controls one chamber of Congress.
Some have argued that the Trump presidency represents no more than a mere “blip” in US history. Judge Ruth Bader Ginsburg believes that historians will view our current moment as no more than “an aberration”. Others have suggested similar notions, characterising the question of Trump’s long-term effect on American politics and society as up for debate.
The arc of history is long, go such arguments, and this presidency will look much smaller in the rear-view mirror than it does today.
I doubt that. In my view, we are living through a transformative moment in American life. Trump has reshaped the contents of constitutionalism, doubtless in ways he cannot begin to comprehend.
Even if the precise nature of that reshaping remains to be determined, the US Constitution will never be the same.
That is not solely a commentary on the harm Trump might do, or the hope he might reveal. Rather, it is a testament to the organic nature of the US’s founding document and of the institutional matrix that frames it. The Constitution is less a fixed “thing” than a process of creation and re-creation, an intergenerational project of stress and growth. Trump has not remotely appreciated or cared about what he has been doing, and the effects will reverberate through the US’s legal and social fabric for generations.
An evolving framework
Trump’s presidency reminds us of a fundamental truth about the character of the US constitutional order. The Constitution has always been an active, participatory enterprise. Only its bare outlines are hard-wired; the rest provides the locus for the spirited, difficult debates. This presidency has driven sustained, formative national involvement with those debates.
Trump’s actions, and the actions taken in response, will in no small part define what the Constitution means for the next generation. This is not just a result of his success in placing judges on the country’s federal courts, including the Supreme Court.
Trump’s constitutional legacy will also reflect his influence on the informal interactions among citizens and opinion leaders — and of such presuppositions as those undergirding the very idea of the rule of law — that do as much as formal judicial rulings to identify the Constitution’s living meaning.
This moment has thrust the process of constitutional transformation and innovation to centre stage in the US’s political life. Most Americans agree that the national institutions are not serving citizens well.
Although there are signs of innovation at the local level, the national legislature is characterised by utter dysfunction.
The federal judiciary is transparently politicised. And this president arrogates to himself ever more power, which he exercises with nearly unchecked abandon. Some even feel increasing scepticism about the Constitution as a whole and wonder whether fundamental change is the only answer. In many ways, as Danielle Allen, a political theorist and director of Harvard’s Edmond J Safra Centre for Ethics, has put it, “[W]e are in our Articles of Confederation moment.”
As a consequence, constitutional reinterpretation (or amendment) is no longer a quixotic mission on the fringe of the national discourse. Such transformation has become among the public conversation’s dominant features.
Major political candidates have proposed altering the structure of the Supreme Court. Ranked-choice voting has entered the national discourse. The Overton Window for constitutional change has flown wide open.
Perhaps the stress the system is undergoing has helped drive into the mainstream a real hunger to cast off fundamental social and political premises that many find unjust. Or perhaps that hunger was already fighting its way into the mainstream, and this chaotic presidency merely coincides with its ascendancy. In any event, society seems to be on the precipice of a moment of fundamental social change: a nation on the brink, though of what we do not yet know.
So we live in a moment of intense constitutional pressure. The stakes are almost unimaginably high. And what happens next depends in no small part, but not entirely, on what we fashion for ourselves from this self-inflicted national trauma, an observation that of course requires us to define who “we” are — and who “we” ought and ought not to become.
How the impeachment inquiry unfolds will no doubt represent a key input into that equation.
The future is unwritten
Just as it seems certain that this presidency will change the course of the US, it is also uncertain what the result of that change will be. Nor is this the sort of uncertainty that a sufficiently wise scientist could eliminate just by studying enough data and applying suitably sophisticated algorithms.
It is not akin to the uncertainty of the next 9.0 earthquake, which might in principle be knowable even if we are unable to do the needed calculations. This is an uncertainty built into the very idea of free will. The future is ours to fashion, to create.
This moment might inaugurate a return to first principles, a rebirth of the Constitution’s fundamental promises. Perhaps we have an opportunity to rediscover the Constitution’s noblest values and extend their promise further than ever before.
Or perhaps this moment will have hopelessly undermined our constitutional system, marking the culmination of an age of dysfunction, the inflection point in a national turn toward ruin.
Unlike the future that Supreme Court Judge Felix Frankfurter once described as hidden in the womb of time, the future of our constitutional journey is hidden because we have yet to choose it.
Perhaps what this traumatic national period can achieve is a more honest confrontation with the US’s deeply troubling past, and a fuller acknowledgement that the lessons the Constitution has to teach must be the subject of contestation rather than computation.
If that happens, our current brush with tyranny will have strengthened us for our next close encounter with genuine authoritarianism. And in so doing it will have left us better equipped to weather the storms that will continue to batter the republic.
US Supreme Court Judge Robert Jackson described the “fixed star[s] in our constitutional constellation”. His metaphor feels singularly suggestive in this time of constitutional change. Stars may be “fixed”, but the constellations they form are products of human imagination and ingenuity, not cosmologically determined features of the observable universe.
So, too, charting our current waters requires human judgment. The Constitution lights the way, but the task of navigation falls to us. And this benighted president has unwittingly sparked debate over how to navigate the ship — by what stars, to what shore and on whose say-so.
We now must seize this moment to look toward a more inclusive horizon, and together decide which points of light are worth following — and which we should release into the darkened night. — © Project Syndicate