Opinion | January 6 proved the durability of the Constitution – and the continued need to protect it

The January 6 riot was a shame. But, in a way, it was almost irrelevant.

After all, shaman QAnon and company can never hold the Capitol and take over the US government; they would not even have been able to stop, rather than delay by a few hours, the counting of the electoral votes in the 2020 elections. Even if the congressmen for some reason could not return to the chambers, they would still gather in another place and finish the count.

A more direct threat to the election was false legal arguments put forward to try to convince Vice President Mike Pence that he had the unilateral power to authorize the electoral vote in favor of President Donald Trump despite his defeat. One of the goals of the riots was to further pressure Pence (“Hang Mike Pence!”), But much of the lobbying took place behind closed doors, among Trump’s advisers.

Pence, of course, resisted. Aside from the Vice President, perhaps the biggest hero of the post-election period was the constitutional system itself – and the reason Pence was so unwavering was because of his unwavering loyalty to that system. A year later, we must appreciate the fact that the Constitution proved to be a lasting means of representative government and disappointed anyone who hoped to seize and wield illegitimate power.

The genius of the document lies in the way it distributes power through federalism and separation of powers, and does not allow the heated majority to trample on the basic freedoms of the Bill of Rights. Supreme Court Justice Antonin Scalia once remarked that in other countries such assurances are just “words on paper”, since the governing documents “do not prevent the centralization of power in the hands of one person or one party”.

The post-2020 election drama should show the importance of this project and the need to defend it. Yet today the very leftists who are most alarmed by Trump are, oddly enough, the most disaffected by the Constitution.

It is a fact It is much more difficult to steal elections when there are 50 different centers of power, each with their own rules, political culture and officials, rather than a centralized system in which one or two people can potentially influence the outcome. Trump’s forces, after the 2020 elections, hoped to turn Pence into a kind of one-man pillar that they could use to distort the constitutional system to their liking. That was the point the notorious scraps Posted by conservative lawyer John Eastman. The so-called Green Bay sweep. that Trump’s adviser Peter Navarro is bragging about a “perfect plan” to try to keep Trump in office by focusing also around Pence – broad objections to the Congressional electoral vote were supposed to eventually force the vice president to suspend the proceedings altogether.

Eastman’s memoranda are desires masquerading as legal analysis. The 12th Amendment states that the Vice President opens the Electoral College certificates, and that “the votes must be counted,” which the memoranda improperly interpret to mean that the votes are counted by the Vice President himself and not by Congress. No vice president has ever claimed such authority under the 12th Amendment. Farther, Like mine National overview colleague Dan McLaughlin notesIt is absurd to believe that Jefferson’s Congress had this in mind when it proposed the amendment prior to the 1804 election. The vice president at the time was none other than Aaron Burr, who tried to rob the 1800 presidential election from Thomas Jefferson, which in the first place was the catalyst for the 12th amendment to be promoted.

If federalism didn’t help the Trump cause, so did the separation of powers. The United States does not have a British-style parliamentary system in which the head of government is also the head of his party in the legislature, which would obviously give Trump much more leverage. There is no unicameral legislature in America either; power is inherently less concentrated in the design of our Congress, with its upper and lower chambers.

In 2020, Democrats controlled the House of Representatives and Republicans controlled the Senate, making it difficult for any plan to rely on Congress to hand the election over to Trump. One way was to hold elections for the House of Representatives, which would vote for the president by a state delegation. Republicans controlled 26 of these delegations. However, our federal system has made even this more difficult than it seemed. Rep. Liz Cheney (Republican from Wyoming) made up the entire Wyoming delegation, and obviously she would not agree with Green Bay Sweep or any other such plan.

It is possible that if Trump ran again, Republicans would gain unified control of Congress in 2024. It would be an advantage for him if he tried to negate the loss again. However, bicameralism will not be his friend. Looking at the current momentum at the House Republican conference, Trump could get a House majority for whatever he wants. And in the Senate? Since this is a different body, with a different institutional culture and different types of people working, it’s hard to imagine Trump ever gaining a majority in his own party for some extremely coherent, notorious scheme.

The constitution provides another layer of protection in the courts. Regardless of whether the judges were appointed by Republicans or Democrats, the courts have almost always ruled against Trump’s lawsuits. The Supreme Court dismissed an absurd Texas lawsuit challenging the results in various faltering states. Our system, in other words, survived.

Given the concerns on the left that Trump might try to replicate the 2020 situation in the next presidential election, Democrats can be expected to defend constitutional order and work to limit the president’s ability to act unilaterally beyond his constitutional mandate. Instead, they do the opposite: applaud the sweeping moratorium on the eviction of President Joe Biden and OSHA’s vaccination mandate; the desire to nationalize the rules of voting in the country; playing with the idea of ​​destroying the legitimacy of the Supreme Court by filling the courts; and intellectually and rhetorically tearing the fabric of the Constitution as a racist relic unworthy of the 21st century.

If Trump’s return poses an existential threat, the left should be willing to make it clear in thought, word and deed that all presidents must strictly abide by the Constitution under all circumstances. They must strive to maintain a highly decentralized electoral system. They must work to strengthen the authority of the Supreme Court. And they must support the Constitution as a time-tested bulwark of our freedoms. Instead, we saw the opposite – because any of these actions complicates the implementation of a progressive design. Our system must be protected from these forces as well.

Academician Corey Robin phrased this with remarkable directness. in a recent essay for POLITICO magazine under the headline: “Republicans Are Rapidly Moving to Cement Minority Rule. Blame the Constitution. ” Robin argues that it is not Trump as such that poses a threat to majority rule, but that the Constitution itself is invariably undemocratic, in part because of the important role it assigns to states large and small. It is true that in our system, states have wide leeway, which has allowed, for example, dark blue California to continue to govern itself largely according to its own views, even when Trump was president. Of course, Republicans have won the presidency twice in recent years, despite a minor defeat in the popular vote, thanks to the Electoral College, another expression of state institutional power. However, political geography changes over time, and the advantage Republicans currently have in the Electoral College won’t last forever.

That the Constitution makes it difficult to get things done in Washington, another indictment against it, serves an important function. This forces parties to win large majorities if they want to bring about transformational change or powerfully mobilize public opinion in support of their programs. Otherwise, the gravitational force of the system is directed towards consensus. We see this in the debate on voting bills that the Democrats are now pushing. While they are unlikely to pass these bills with their razor thin, likely provisional majority, there is clearly an opportunity to reform the Election Counting Act. The changes to this law, which governs electoral vote counting, will be bipartisan and effectively respond to the most important Pence-focused element of Trump’s 2020 post-election campaign.

Instead, many Democrats indulge in ideas that reflect a sense of frustration at having a constitution in their way. This is the same frustration that characterizes the Eastman memoranda.

That The newspaper “New York Times published an editorial this week claiming that that “every day now is January 6“. This is clearly overkill. But the Constitution is indeed always under threat, and its friends have to defend it from all challenges.

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