Thursday, September 22, 2016

pre-election state of mind

In less than two months, the American experiment in constitutional self-government may hit the wall of history. Even if the disaster of a Trump presidency is averted, this fall’s presidential campaign suggests that the United States Constitution is gravely, perhaps terminally, ill.

Trumpism is the symptom, not the cause, of the malaise. I think we have for some time been living in the post-Constitution era. America’s fundamental law remains and will remain important as a source of litigation. But the nation seems to have turned away from a search of values in the Constitution, regarding it instead as a set of annoying rules.

....The corrosive attack on constitutional values has come, and continues to come, from the right. It first broke into the open in 1998, when a repudiated House majority tried to remove President Bill Clinton for minor offenses. It deepened in 2000, when the Supreme Court, by an exercise of lawless power, installed the President of their choice. It accelerated when the inadequate young president they installed responded to crisis with systematic lawlessness––detention without trial, a secret warrantless  eavesdropping program, and institutionalized torture.

In the years since Barack Obama—with a majority of the vote––replaced Bush, the same forces, now in opposition, have simply refused to accept him as the nation’s legitimate leader. In control of Congress, they will not perform that body’s most basic duties––formulating a budget, tending to the national credit, filling vacant posts in the government—and, most shockingly, controlling the nation’s passage from peace to war. Now they have turned their attention to the Supreme Court, and are slowly crippling it in pursuit of partisan advantage.

....the Constitution never was (in James Russell Lowell’s phrase), “a machine that would go of itself;” what has made it work is a daily societal decision that we wish to live in a constitutional democracy. In 1942, Judge Learned Hand warned that “a society so riven that the spirit of moderation is gone, no court can save; that a society where that spirit flourishes, no court need save.”

The willingness to live by fundamental law has fled, and few seem to notice.