What did the Founding Fathers intend? It is a question often posed in American politics, but is hard to answer. Those illustrious men of the 18th century disagreed on slavery and whether it should exist; on whether small states and large states should have the same representation; on whether slaves should be counted as part of their populations; on the distribution of powers between states and central government; on what to do about debt; and on the location of the US capital.
They muddled through their disagreements to a Declaration of Independence (1776), a Constitution (1789) and Bill of Rights (1791). That the constitution was subsequently amended mere months after its creation suggests that even the founders accepted theirs was not the last word.
But the idea that the rules of American democracy were meant to evolve with the republic is a contentious one. Some in the US today, most prominently the Supreme Court justice Neil Gorsuch, are originalists who argue that laws must conform to the constitution as it was written. More problematic still are those such as the Senate majority leader, Mitch McConnell, who are willing or even eager to press the constitution into the service of undermining the legitimacy of American institutions and political principles.
Take an episode from recent days. All but two Republican senators – Susan Collins and Lisa Murkowski – have pledged to confirm Amy Coney Barrett, who Donald Trump has nominated to the Supreme Court after the death of Ruth Bader Ginsburg on 18 September. But in 2016 – when a seat on the court was vacated during an election year – Senate Republicans refused to nominate Merrick Garland, Barack Obama’s nominee. It would be inappropriate, they and other conservatives argued, to change the balance of the court so soon before the vote. The next president should make the nomination.
Now they have reversed their positions and justified the U-turn with the barely disguised admission: because we can. Some have been more specific. Trump, the vice-president Mike Pence and Senator Ted Cruz have all explicitly cited the fact that the presidential election on 3 November could be decided at the Supreme Court.
In theory, all of this is acceptable according to the constitution. In practice, it undermines it. The judicial branch was meant to be a check on, not an extension of, the executive branch. The legislative branch was, too. A Republican-controlled Senate ramming through the president’s nominee to ensure that she is on the court in time to help re-elect him is technically allowed by the constitution. But to say, “well, it’s in the rule book”, ignores the fact that this fundamentally changes the political game.
Now is the moment for Democrats to show similar ruthlessness; to change the rules to save the constitution and the legitimacy of US institutions and government. Should Joe Biden win the presidency in November and the Democrats retake the Senate, there are several tools that are available to them to change the balance of power. They could abolish the filibuster, which Republicans will use to delay or prevent important legislation from passing through Congress. They could add justices to the Supreme Court to re-establish the ideological balance that might be destroyed if the Republicans appoint a new justice in an election period. They could give statehood to Puerto Rico and Washington, DC.
Such ideas are distasteful to many Democrats, who believe they defy Senate norms, or political tradition, or what the founders intended. The filibuster is “part of how the Senate differentiates itself”, said Dianne Feinstein, a Democrat senator from California. Packing the court is out of bounds for Joe Manchin, a Democrat from West Virginia, who said he wants politics to be done “in a bipartisan way”. Mention statehood for DC and a Democrat usually notes that the founders did not want that (a recent headline in the Boston Globe ran: “The Constitution says no to DC statehood”).
But there is precedent for taking maximalist action to save the republic. In 1861, during the Civil War, Abraham Lincoln suspended the writ of habeas corpus, which requires an arrested person to be brought before a judge or court. If he didn’t bend the constitution, he said, there would be no constitution to protect. In 1937, during the Great Depression, Franklin D Roosevelt violated judicial rules – attempting to add more justices to the Supreme Court, for example – to obtain favourable rulings for New Deal legislation that would save American capitalism.
None of this is to say that Democrats today should do exactly what Lincoln and FDR did in the past. But it is to make a proportionate distinction between mutable rules (preserving the filibuster, say, or limiting the size of the court) and eternal norms (an independent judiciary, a government that derives its power from the consent of the governed, politicians responsible to the people). These norms are imperilled in today’s America as Republicans twist and rewrite rules, and Democrats stand by, too deferential to “the way things are done” to do the same.
If Democrats take the White House and the Senate, they not only have a chance to change their commitment to upholding political norms and rules, but a responsibility to do so. Yes, Republicans might do the same or worse if and when they regain power, but recent events hardly suggest there is much restraint or goodwill left to lose on their side. Trumpism may well outlive the Trump presidency. The founders might have disagreed with that. But they are no longer with us, living in the country they founded. It is not up to them whether or how the nation continues. It is up to us.
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This article appears in the 30 Sep 2020 issue of the New Statesman, Twilight of the Union