Opening Pandora’s box

The U.S. Constitution was ratified in 1789. After the constitutional convention, Benjamin Franklin was asked what sort of government we were going to get. He famously replied, “A republic, if you can keep it.”

Next Wednesday may be the end of our republic. That’s when the U.S. Senate is likely to acquit Donald Trump. The U.S. Senate is basically enshrining Richard Nixon’s assertion that if the president does it, it’s not illegal. Richard Nixon’s corpse would be smiling, if that were possible.

It will be an entirely predictable end to a trial in which no one seriously disagrees the president committed impeachable crimes, including the president’s lawyers. They just say that he has immunity from them. Republican senators seem to agree, setting the precedent that the president is above the law, or above any meaningful check by Congress. Senators can’t even be bothered to call witnesses. Many of them, rather than listening to the testimony presented, were caught reading books and doing crosswords instead.

So after his “exoneration”, it’s likely that if Trump wanted to arrest dissidents and deny them the right of a jury trial, he could get away with it. Because even if impeached again, the Senate won’t throw him out of office for offenses like this. There’s really nothing Trump won’t be able to get away with after Wednesday, and given his temperament you know he’s going to try. It’s likely to make all Republicans except the Never Trumpers giddy. It’s what they have been hoping for all along.

Oh, but there’s an election coming up! Voters will rectify things! Things aren’t so bleak after all! Since Trump’s election, Democrats have been on the upswing, winning the House, winning seats in the Senate and turning Virginia blue. But even if all of this happens, the precedent is now set. Congress has essentially voluntarily ceded power, allowing the Executive to become even more powerful, and itself more irrelevant. The script has now been tried and tested. Whether Republican or Democrat, the president can now simply refuses to respond to any congressional subpoenas. Unless two-thirds of the Senate agree to remove him from office, he or she has carte blanc.

A fair election in 2020 is problematic. There is the usual voter suppression and gerrymandering, which will be dialed up to 11 for November 3. The U.S. Senate is fine if other countries want to hack our election system or set up disinformation campaigns, even though it is explicitly against U.S. law. The U.S. Senate has effectively nullified lots of laws like this by simply refusing to hold accountable those charged with enforcing them. In short, the law means nothing to our senators, unless it can be used against their political enemies. Law is now meant to be applied selectively, and as a political weapon. Trump has an attorney general who agrees and who now states this as policy.

We are in a huge mess because our senators refused to do their job. Our system of checks and balances has proven able to be hacked. Our founders assumed that institutional forces would make these forces work. They did not want political parties, but we created them anyhow. As a consequence, 231 years later this system has proven fatally flawed.

The only chance of rectifying this is if Democrats win the trifecta in November: turning both houses of Congress and the executive blue. And even then there are institutional forces that make returning to a real republic problematic at best.

We can start with Donald Trump who you know will claim the election is rigged if he loses and will refuse to vacate the White House. Most likely he will see if he can affect a military coup to retain his hold on power. After all, if the election he is trying to rig goes against him, it must be illegitimate. Then it will be up to our military to resist the urge. I’d like to say I have faith they will resist, but we live in extraordinary times.

But even if Trump loses and goes, even if Democrats win a trifecta, there is a court system now full of cronies of Trump and Republicans designed to thwart any progress. You know the courts will find a reason to overturn the Affordable Care Act. Any universal health care plan that a President Sanders wants to put in place will be judged unconstitutional as well. A likely recession will weigh against a Democratic president and a Democratic congress, as the 2010 election showed.

Then there are the hosts of other issues that need addressing, with climate change at the top of the list. But since our constitution is now broken, it must be fixed too. That will require constitutional amendments that will be very hard to ratify. To start, the system of checks and balances needs to be changed. The impeachment and conviction process for presidents needs to change. The Justice Department must by statute and funding be under the supervision of the courts, not the executive.

It’s enough to make anyone despair. We cannot despair. Instead, we must get busy. We must reclaim our republic. Freedom is not free, and democracy is not free. We must fight for its return, with our blood if necessary.

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