10 November 2020   1 comment

I received this comment from one of our readers, worldweber2013, who raised a question that I have been pondering since I received it. It concerns my post of 7 November and I am certain that many are asking the same question. Here it is in its entirety:

“I am grateful to have these insights on the recent , and yet to be concluded election. I hope Joe Biden is listening when you say one of the issues facing the American people is how to deal with Mr. Trump. Addressing this painful and divisive question will require courage, discernment and grace.

“Whatever crimes Trump committed as president should be investigated to the extent that guilt or innocence is established, even if Trump is granted immunity from prosecution.

“And we, as a nation, need to deal with more than Trump as an individual. We must assess the weaknesses in the Constitution that his presidency has exposed. How can we as citizens be assured that disregard for the rule of law is never (again?) permitted to control the White House? Trump skated past the Mueller Investigation, which suggests that the power to investigate but not prosecute is insufficient to deter wrongdoing by the president, especially if said president can claim executive privilege, or security risk, or give other reasons for withholding information. If we accept that a president is entitled to stonewall for reasons of national security, then how does one hold them accountable? Do the checks and balances so essential to the configuration of our democracy, and so brilliantly devised by the authors of our constitution, protect us adequately? I would say, based on the past four years, that they do not. The writers of the constitution may have anticipated the election of a self-serving executive, but they apparently did not foresee the extent to which such an individual would be enabled by other self-serving persons in positions of power.

“Or would you, Vinnie, argue that the constitution has done its job, and we should be relieved and reassured?

“Can a constitutional framework be devised that does not rely on the integrity of the participants? If not, democracy depends on the vigilance, knowledge and integrity of the electorate. In which case, we just witnessed an epic fail of four year duration, and we appear to have narrowly avoided an even more debilitating second term.

The urgency of the comment has increased as we witness a full-throated attempt by Mr. Trump and his colleagues to undermine the election results, perhaps with an eye toward forcing the decision to state legislatures where the Republicans have a majority of states (although I would be hard-pressed to imagine Governor Baker of Massachusetts going along with such a travesty).

The critical question is: “Can a constitutional framework be devised that does not rely on the integrity of the participants?” The enforcement mechanism of the Constitution is loosely called checks and balances. The Constitution was written with the assumption that human beings would always want to accumulate power. The trick, then, was to structure power with three branches (executive, legislative, and judicial) so that the competition for power among the three branches would prevent any single branch from becoming pre-eminent.

In my lifetime, I have witnessed the slow consolidation of power in the Executive Branch of the government. But the deference of the Republican Party in the US Senate and its ability to manipulate the courts to mirror that preference during the Trump Administration (including the ability of Congress to prevent President Obama from placing Merrick Garland on the Supreme Court pre-dates the Trump Administration) has almost completely shredded the powers of the Congress. The Congress, apparently, no longer holds the power of the purse (witness Trump’s ability to secure funds for the border wall with Mexico without Congressional approval). Nor does it hold the power to investigate the actions of Executive Branch officials (witness the disregard of the Trump Administration to legal subpoenas).

There is no inherent reason why the Congress could not assert these powers (although the packing of the court system may render such a move bootless). But the answer to the question seems clear: the Constitution requires faithfulness to the Constitution to work. It apparently is incapable of enforcing itself. If Mr. Trump succeeds in vitiating the results of the 2020 election, then the last enforcement power–voting–will be rendered useless. In 1788 James Madison wrote in the Federalist No. 51: “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place, oblige it to control itself.” We seemingly have arrived at that point. The future of the American Republic really hangs in the balance right now.

Posted November 10, 2020 by vferraro1971 in World Politics

One response to “10 November 2020

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  1. Thank you, Vinnie, for making such a thoughtful response. I am flattered that you would share my question and I think your response is spot on. The constitution cannot enforce itself.

    I regret that I am occasionally unable to fight my way through the accumulation of email to be timely in following the blog. And I confess, there are times when I don’t feel able to face the onslaught of world events in real time, but I always catch up with the blog when I am feeling resilient.

    Thanks again for your insights and commentary.


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