“Updating the Constitution”

Yves here. This post makes important observations about how the governing order in the US has changed in recent decades. However, yours truly is not wild about framing the major shifts in our governing order as new/different Constitutions. This strikes me as what Lambert would call a category error. The US Constitution is a written document, with some amendments, whose meaning in practical terms has been repeatedly tested in courts, and sometimes revised away from older interpretations. Major shifts in policy aims and new winners and losers among the groups vying for power IMHO is not the same as a change in the Constitution, even if the changes in the ruling order are significant.

I would be happier if the formulation were more along the line of positing that as the US aged, the role of the written Constitution and even court rulings on it were diminishing due to the rise in importance of other vectors of influence. One big one is how “code is law” as in administrative/tech convenience has come to assume an outsized role in relation to law and regulations.

By Thomas Neuburger. Originally published at God’s Spies

“I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.”
—Presidential Oath of Office, U.S. Constitution, Article II, Section 1

“Well, when the president does it … that means that it is not illegal.”
—Richard Nixon to David Frost, 1977

“We are living in a post-Constitutional time”
—Russell Vought

The American Constitution, for all its virtues, is a deeply flawed document. No one disputes that today.

We have, for example, from the start and by design, a mode of government that privileges the privileged. Consider James Madison: “The Senate ought to represent the opulent Minority”, and the fact that, as a result of this manipulation of representative government, less than 5% of the U.S. population controls 30% of the Senate.

Or consider the Electoral College. By my calculation, the 38 least populous states control 280 electoral votes. My energy-hog AI assistant tells me that this represents about 15% of the population. If this AI calculation is off, it’s not by a lot.

And the percentage of votes needed to win the EC is even smaller if each state is won by the least votes needed. In theory, eight percent of the country could control both the Senate and the presidency.

Four Modern Assaults on the FDR Constitution

This flawed Constitution has been under assault for decades. Hard-line conservatives would say, disingenuously in my opinion, that this assault on democratic rule started with the Constitution’s third iteration, that of Roosevelt’s New Deal.

I say “disingenuously” because conservatives, by definition, always promote aristocracy — a landed gentry, a privileged class, a ruling moneyed elite — whether they say so or not, while our written Constitution, through its iterations so far, has always increased the people’s control of government.

The New Deal Constitution is the last one the U.S has agreed on, and it’s been under assault, in more ways than one, by more groups than one, for more than 50 years. I want to enumerate them briefly, these assaults — first, to provide a larger philosophical context for much of the writing here; and second, to provide set-up for expanded discussion.

For a discussion of our three Constitutions to date, see here:

Assault by The Security State

Briefly, a muscular security apparatus is the natural enemy of democratic rule. (If you don’t believe that democratic rule is desirable — for example, that the “ignorant” shouldn’t vote, or that socialists should be deported — feel free to stop right here. This discussion isn’t for you.)

Most would place the security-state assault in 1947, starting with Truman’s desire not to demobilize the World War II military. Gore Vidal, writing in Vanity Fair:

Fifty years ago, Harry Truman replaced the old republic with a national-security state whose sole purpose is to wage perpetual wars, hot, cold, and tepid. Exact date of replacement? February 27, 1947. Place: White House Cabinet Room. Cast: Truman, Undersecretary of State Dean Acheson, a handful of congressional leaders. Republican senator Arthur Vandenberg told Truman that he could have his militarized economy only if he first “scared the hell out of the American people” that the Russians were coming. Truman obliged. [emphasis added]

I would argue that it goes back to the Palmer Raids of 1919 and 1920, America’s version of the universal Western panic over the Russian Revolution of 1917 (which parallels, by the way, the similar Western panic over the great revolution in France, which they tried to reverse, unsuccessfully, with armies in the field). The Palmer Raids created the Hoover FBI.

Obviously, the events of 9/11 allowed that now-lovable fascist Dick Cheney to put the country on a military (“anti-terrorist”) footing from which it’s never recovered. In fact, it’s just gotten much worse.

Assault by Neoliberal Economics

The modern assault by neoliberal economics, starting with the Mont Pélerin Society, founded, perhaps not coincidentally, in 1947, the same year as the national security state. The go-to person to read about neoliberalism in Notre Dame professor Philip Mirowski, author of The Road from Mont Pelerin and Never Let a Serious Crisis Go To Waste.

In reviewing the latter book, Paul Heideman correctly writes in Jacobin:

Joining a long line of thinkers, most famously Karl Polanyi, Mirowski insists that a key error of the Left has been its failure to see that markets are always embedded in other social institutions. Neoliberals, by contrast, grasp this point with both hands — and therefore seek to reshape all of the institutions of society, including and especially the state, to promote markets. Neoliberal ascendancy has meant not the retreat of the state so much as its remaking. [emphasis added]

And neoliberals of both parties, Milton Friedman Republicans and Clinton-Obama Democrats, have been remaking the state ever since toward their only real goal, to increase rule by the rich by increasing their wealth.

We’re under that assault today. All of the changes modern Democrats and Republicans have made to diminish — or even eliminate — our government’s ability “promotes the general welfare” work to that end. “Let the rich win absolutely” is the neoliberal mantra, whether admitted or not.

That battle is over; a return to FDR economics is, I think, impossible, given where we are now and how many have collaborated to bring us here.

Assault by Executive Rule

Theorists on the right would identify the era of the muscular president as starting with Franklin Roosevelt. In that, they probably aren’t wrong. In a strong-man era responding to near global disruption (the Great Depression and the post-WWI era in Europe), a strongman seemed needed to deal with disruptive times. Even in “democratic” America (an arguable point), “someone to take charge” emerged and was widely welcomed.

But in Roosevelt’s case, the “strongman” favored of the people, and the FDR Constitution dethroned the rich and greatly empowered the rest. The first crack in that consensus came from Richard Nixon, who arguably committed treason to win the White House in 1968, was forgiven his Watergate sins by Gerald Ford, who appears to have traded his own high elevation for Nixon’s exoneration.

Thus begins the era of the always-forgiven president. No president since has been prosecuted for violating his oath, nor for any violation that would put him in legal jeopardy for any act committed in office.

That absolution is absolutely bipartisan. Reagan was forgiven his Iran-Contra crimes, Bush I as well. Reagan and Bush’s likely treasonous intervention in the Iran hostage negotiation was dismissed, both by the government and the public. Bush II and Cheney both should be in prison for torture (for sure) and likely mass murder (their unprovoked assault on Iraq). Obama murdered Americans on executive order. And probably worse, he confirmed George Bush’s crimes by letting them go (“look forward, not back” on torture).

And so it goes. What crimes one of them didn’t commit, he confirmed what others did by non-prosecution. Trump v. United States isn’t an deviation, it’s a confirmation. The “unitary executive” didn’t start last year; we’ve permitted it all along. The only people opposed to it are those out of power, and then only temporarily.

Assault by the Radical Right

This assault is above and beyond neoliberal distortions. While neoliberalism has worked successfully to replace the FDR state with its opposite, all the while keeping its forms, the radical right assault wants to alter those forms, to make them conform to the Real Constitution today, the one we actually use.

The Real Constitution lets the president murder by order. The Real Constitution lets the president go to war for any hand-waving reason he wishes to, against any nation he wishes. The Real Constitution lets the president spy on the people, all of them, all of the time, by any means spying is possible.

The Real Constitution lets the executive branch break any law, whenever, in its wisdom, it thinks it necessary. It doesn’t even have to provide the reason. “National security,” you know.

But changing those forms makes this assault look consequential. An example from The Atlantic (via Tony Wikrent at Ian Welsh’s site):

If a crisis is coming, it’s because [Russ] Vought [OMB director and major right-wing theorist] is courting one.

[Steve] Bannon told me that mainstream Republicans have long complained about runaway federal bureaucracy but have never had the stomach to take on the problem directly. Vought, by contrast, is strategically forcing confrontations with the other branches of government. “What Russ represents, and what the Romneys and McConnells don’t understand, is that the old politics is over,” he said. “There’s no compromise here. One side is going to win, one side is going to lose, so let’s get it on.”

… Vought himself has written that we are living in a “post-Constitutional time.” Progressives, he argues, have so thoroughly “perverted” the Founders’ vision by filling the ranks of government with unaccountable technocrats that undoing the damage will require a “radical” plan of attack. “The Right needs to throw off the precedents and legal paradigms that have wrongly developed over the last two hundred years,” he wrote in an essay for The American Mind, a journal published by the Claremont Institute.

What exactly would such an approach look like in practice? Mike Davis, a Republican lawyer and a friend of Vought’s who helped steer judicial nominations in Trump’s first term, told me that he expects an escalating series of standoffs between the Trump administration and the judicial branch. He went so far as to say that if the Supreme Court issues a decision that constrains Trump’s executive power in a way the administration sees as unconstitutional, the president will have to defy it. “The reptiles will never drain the swamp,” Davis told me. “It’s going to take bold actions.” [emphasis added]

See Wikrent’s piece for more; he includes examples from many sources.

Conforming the Law to What’s Practiced

We’re not breaking the rule of law; we’re starting to change the law to conform to what we do, and building new law upon that. For all these reasons…

• The elevation of the security state to a branch of government
• The neoliberal capture of economic policy
• The rapid transmutation of presidents into kings
• The push by the radical right to enshrine the unspoken, broken Third Constitution as settled law

…America sits at the cusp of radical change. Not as radical, mind you, as what we’ve done. But it will look radical when our past unofficial amendments are made explicit, and those rules are built upon.