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Impeachment, McConnell and The Problems Caused by the US Constitution Itself by H.E. of New York

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The Problems Caused by the US Constitution Itself by H.E. of New York

From this morning's The Sunday Mailbag at, the best thing I've read on Trump's impeachment and the on-going Republican generated constitutional crisis. Brilliant essay with true historic and policy insights, no doubt:

Now that it is undeniable that we are in the midst of a constitutional crisis, isn't it time that we face up to the problems caused by the U.S. Constitution itself? Notwithstanding the veneration inculcated in generations of high schoolers, the Constitution has serious defects that have contributed to the current crisis. In the first case, it is poorly drafted. The Framers clearly expected that the Senate would indeed advise and consent (or withhold consent) on judicial appointments and that, the House having impeached the president, the Senate would certainly exercise its "sole power to try impeachments" and carry out a trial of the president. However, in neither case does the text oblige the Senate to do so, Noah Feldman notwithstanding. Senate Majority Leader Mitch McConnell (R-KY) took advantage of the first textual lacuna to rob for the first time the President of his prerogative to appoint a justice of the Supreme Court. In the second instance, McConnell did not refuse to try President Trump on the Articles of Impeachment, if only because he knew that he had the certain votes for acquittal. So, these are cases of poor drafting since the actual text fails to achieve the presumed objective of the Framers.

Then there are the deeper defects in the Constitution beyond the technical. The most basic structures of the US government were designed to protect the South from any future threat of expropriation of their property rights in enslaved persons. The only option was to give an inordinate and anti-democratic share of power to the less populous slave-holding region. To which end James Madison proposed the Three-Fifths Compromise that would assure over-representation of the slave-holding states in the House of Representatives on the pretext of representing the interests of the slaves while simultaneously denying them as chattel any human or political rights at all. In addition, the Senate was structured with two senators for each state regardless of the size of the population. It didn't have to be so then and it doesn't have to so now. Seats in the German Bundesrat, for example, are allotted proportionally according the population of each state. So then, having assured the over-representation of the slave states in both houses of Congress, it only remained to transmit that same advantage to the election of the president for which the Framers came up with the inspired gimcrackery of the Electoral College, an institution for which no other democracy has then or now seen any need for, and which gives rise to the uniquely American electoral glossary that distinguishes between the "popular vote," otherwise "the vote," and the "Electoral College vote." The whole system achieved its purpose wonderfully: until Lincoln, all the U.S. presidents were slaveholders except for the two Adamses from Massachusetts. Madison's warning that the South would refuse to join the Union without the guarantee of excessive power was proven right when, after Lincoln's election as the first president without any Southern support, the Confederate States seceded so promptly that Jefferson Davis took office before Lincoln himself.

But even the anti-democratic remnants of slavery that encumber the structure of government set out in the Constitution are not its greatest defect, which is that it effectively cannot be changed. Leaving aside the Bill of Rights, the ten amendments passed en masse in 1789, in the subsequent 231 years only seventeen amendments have been ratified, the reason being the requirement of no less than three super-majorities to do so: two-thirds of the House, two-thirds of the Senate, and three-fourths of the states. It seems that the elite American separatists, having seized power from the British monarchy, were intent that power should not be similarly seized from them or their posterity. How else to explain that the Framers adopted the English system of common law, whose vaunted advantage over a code system is its ability to evolve through succeeding case law rather than only by legislative amendment, while at the same time declining to adopt the similarly flexible British Constitutional system which relied then as now on a collection of documents and traditions rather than codification in a written constitution with a high barrier to change?

The trivial 27th amendment to the Constitution took over two hundred years to be ratified. We can be quite sure that we will never see another amendment within the lifetime of any American adult, given the extreme political polarization which now prevails.

Finally, the current constitutional crisis which explicitly threatens both the balance of power between three equal branches and the integrity of elections, without which representational democracy can hardly be possible, has defeated the redress available in the Constitution, because the Framers imagined that future power struggles would arise, like the English Civil War, as conflicts between the branches of government rather than between politial parties which spanned all of the Presidency, the Congress, and the Judiciary. So, the remedy of impeachment can now be seen to be impotent against the biggest power grab in the history of the republic after the impending success of which it is difficult to forsee a restoration of democratic norms.

We might forgive the Framers their failure to imagine the political realities of the future had then not so tightly bound us to their vision of the past. The past is indeed not dead; it is not even past. H.E., New York, New York.





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