Balkinization: Onwards

Onwards

Mark Graber

The United States is as much a constitutional democracy today as the United States was yesterday, How much of a constitutional democracy the United States will be tomorrow is for us to determine. One cause of the death of republics is preemptive strikes by those who fear the future and, having lost control of governing institutions under the processes of their particular constitutional democracy, justify actions that are inconsistent with the fundamental principle underlying any constitutional democracy that government functions by persuasion according to somewhat fixed rules.

The task for progressives in the coming days, weeks, months and years is to figure out how to persuade more of their neighbors so they can gain control over the government under the rules that presently exist. On the one hand, these rules are likely to get worse. One power enjoyed by coalitions that gain control of a constitutional government is that to some degree they can modify the rules so as to privilege their retention of power. Voting rules can be manipulated to some degree, with the proviso that such basics as when the next election is held and what one has to do to win that election remain unchanged. Federal funds will tend to empower partisans rather than political opponents. This is a fact of life in all constitutional democracies and not one worth much time complaining about. Barack Obama figured out how to win two presidential elections in a political universe awash with big money. Progressives will have to figure out how to win in a universe of restrictive voting rules and even more money.

These obstacles are hardly insurmountable. President Trump will make mistakes in part because he is error-prone and in part because he has fostered expectations that he cannot fulfill and he can hardly blame his fellow partisans in Congress for those shortfalls. Relationships between the Trumps and Republicans in Congress are likely to be tense and further provide openings for progressive politics. But progressives have to take advantage of the openings that future constitutional politics actually provides rather than the openings that would be provided by a more perfect constitutional democracy. Should progressives figure out how to win in the coming constitutional order, once in power they can decide within limits, just as Republicans will be deciding in the near future, what parts of the constitutional order they can modify and what parts of the constitutional order they should modify.

The Constitution, to paraphrase Mr. Chief Justice Charles Evans Hughes, is what the dominant national coalition says the Constitution is. Progressives have temporarily lost the Constitution, but the Constitution is not lost. Rather, we should abandon the notion that the Constitution is somehow an anchor that prevents bad politics and recognize that, for better or worse, the Constitution we have and any constitution we are likely to get is only likely to be a force for good to the extent that good people actually operate the Constitution.

Posted 6:52 AM by Mark Graber [link]