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Looking at perhaps the most basic of constitutional questions
Later today I am talking to some students, and this seems a good opportunity to ask perhaps the most basic of constitutional questions about what happened in the United States this week.
Did the mid-term elections show that the United States constitution is working or not working?
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On the face of it the election results show a properly functioning polity (or political system). The results went against the party in power – a party which controls both the presidency and both houses of Congress. Turnout was high, and as far as we can tell the elections were peaceful and in accordance with the law.
A mid-term election which goes against those in power -and even ejects many incumbents from power – is perhaps one way of illustrating that a democracy is performing properly.
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But.
Just as a puppy is not just for Christmas, constitutions are not just for elections. A constitution should regulate what happens in a polity between elections. It should not be left to an electorate on a strong turn-out to ensure that those with power act constitutionally and in accordance with the law.
Indeed, until the last moment there were credible doubts that any adverse election result would even be respected. President Trump and his supporters were ready to dismiss any defeats as fraudulent, just as they have dismissed the election defeat at the end of his first presidential term. They were also preparing to “lawyer up” and dispute any close result against them, in Alaska and elsewhere. It was not a foregone assumption that Trump and his party would respect election defeats this week.
It was the scale of this defeat which overwhelmed them – to use a common phrase, the result was “too big to rig”. The ever-calculating Trump quickly pivoted to accepting the result so that he could use it to blame others. In his constant quest for leverage in any given situation he realised he could use the election defeat as a political weapon against opponents (and allies). But this was not bound to happen.
The codified “written” constitution has over the last two years not prevented abuses and misused of executive power, from extra-judicial killings both in the United States and abroad, to the gutting of federal projects and the misappropriation of public money. Congress has hardly sat and has offered no meaningful check on the executive, and the judiciary has largely (if not entirely) nodded along with executive actions. The conservative majority on the Supreme Court have used the means of a “shadow docket” to stay court orders against government excesses and government lawyers have evaded other court orders.
The primary reason for this constitutional quietism has of course been that the same party – the Republicans – controlled both Congress and the presidency, and their appointed judges are dominant on federal benches.
And without tension there is little or no point in any supposed “separation of powers”.
When the core elements of the state are aligned, then checks and balances are pretty much useless. A great deal of what Trump and his administration have got away with over the two years is because those with the powers to check and balance chose not to use those powers. The constitutional tools were there, but they were left on their hangers.
The mid-term elections show that the electorate has stepped in so as to check and balance, where politicians and judges have failed. The electorate have performed their residual, ultimate function.
In any democracy there is difficult balance of what can and cannot be done without popular mandates – and what can be done against a popular mandate. The process of impeachment, for example, can remove a president from office without any election – reversing a democratic decision without a popular vote.
But constitutions often include the means to remove politicians from office between elections. This is what can prevent what is called “the tyranny of the majority”. Successful populist politicians and demagogues can still be held to account.
And so yes and no: the mid-term elections showed that the United States constitution is both working and not working – just as using emergency landing gear on an airplane shows things are functioning – and also somewhat amiss.
Constitutions should not always be in a brace position.
Constitutional law should be boring, not exciting.