constitution1

There’s nothing magical that holds American democracy together.

I think that’s something that we take for granted. American democracy works — in the flawed, half-broken sense that it’s ever worked — because competing functions of our civil society implicitly agree to respect the constitutionally described powers of the other branches of our government while also respecting the enumerated limitations of their own branch.

This is basic civics. We have a government with three branches. The executive, legislative, and judicial. Each branch has certain powers that can be reduced (perhaps perilously) simply: the legislative branch decides what the laws are, the executive branch is tasked with enforcing/enacting these laws, and the judicial branch is tasked with interpreting these laws. Each branch has ways of keeping the other branches in check. It was one of the most carefully deliberated design elements of the Constitution. The legislative branch can impeach the executive branch and judicial branch. They have confirmation powers for many of the people  appointed to either of those branches. The executive can veto legislative decisions. They appoint the judiciary. The judiciary can decide if the laws or actions of the other two branches are unconstitutional. And if these laws are unconstitutional, it’s the purview of the judiciary to tell the other branches of the government that they have to change their behavior.

I feel like I’m moderately insulting anyone reading this by explaining how our constitution is laid out. It’s something that’s drilled into your head as soon as you’re old enough to have even the most basic civics & government/social studies education. But you’re just taught those facts. You’re rarely taught the philosophy behind those decisions, and, as much as our framers betrayed the ideals of our founding document with slavery and all of the other horrors of American history, they left behind a remarkable collection of literature that clearly spelled out their thought process in enacting our specific form of government.

James Madison, one of the principal architects of the U.S. Constitution, wrote extensively about his fear of “faction” in any new American government. Madison — and many of the other key Federalists whose vision of America most guided the construction of our government — had concerns that participatory democracy would inevitably result in the radical redistribution of wealth. Although our Founders were guided by the individual liberty-centric philosophy of the Enlightenment, they were also wealthy land-owners who were worried their slaves would revolt and their peoples would take their money and land without the punitive fist of the British crown around to suppress an uprising. And so they created a form of government where direct democracy “existed,” but there were also a host of checks in place to ensure that democracy never spun out of control. Checks were only  added to the anti-democratic institutions (which initially was the presidency, Senate, and Supreme Court before the presidency and Senate were opened up to public vote) because anti-Federalists recognized the potential for tyranny inherent in initial Federalist drafts of the Constitution (and also because many realized that, down the line, this system could unilaterally abolish slavery which was cataclysmic as far as Framers from slave-holding states felt).

But despite the flawed intentions behind our Founders decisions with the Constitution, those innate “checks & balances” — that phrase which you hear so many times in school but maybe don’t think enough about — are a Constitutional tool against tyranny in the sense that we recognize it today. If one branch of the government begins to act in a way that another branch deems to be a violation of the constitution and fundamental American values, it is the obligation of the offended branch to use its constitutional powers to hold the violating branch in check.

The Supreme Court ruled that school segregation was a direct violation of the 14th amendment and the constitutional dictate of equal protection under the law. President Dwight D. Eisenhower — a Republican sympathetic to Southern segregation — ordered the National Guard to protect black children attempting to attend formerly segregated schools, overriding the legislative decision making that made racial segregation a de jure fact of Southern life. President Obama repeatedly vetoed attempts to end the Affordable Care Act by a GOP controlled Congress. The Supreme Court upheld the validity of the law. The Senate would have convicted President Richard Nixon of felony conspiracy charges if he hadn’t resigned from the Presidency first.

All of those things can happen because the Constitution was expressly designed to handle those types of crises (even if our founders would have never predicted any of the particulars). But the value of those Constitutional norms only have as much value as the willingness of those who hold power in the American government to uphold and respect them.

After the civil war, Republicans (in the Lincoln sense of the word; the GOP as it exists today bears no resemblance to the party of Lincoln) controlled every branch of government but the Supreme Court. Democrats had (in the Jefferson Davis sense of the word; the Democratic party as it exists today bears no resemblance to the party that primarily populated the Confederacy) been essentially purged from federal American government because of the Civil War. They had been the ones rebelling and who had been disloyal to the Union. And, because of this, they had almost no say in Federal politics (outside of the Supreme Court whose justices are appointed for life and many of which were Democrats because they had been appointed before the war).

Republicans passed sweeping amendments to the U.S. Constitution. They abolished slavery and the 14th Amendment settled once and for all that every man (sadly gender equality wasn’t on their minds) had equal rights under the law and the states had no power to subvert the due process that every citizen was guaranteed by the federal government. Democrat Supreme Court justices that were sympathetic to the South and to the maintenance of slavery and white supremacy abdicated their constitutionally prescribed duty — which was to decide whether or not laws were constitutional — and blatantly distorted the language of the 14th amendment to preserve institutionalized state racial oppression in the South (and, in many ways, the North).

The Constitution had been changed. The most basic law of American society had been changed. And the Supreme Court ignored the sole document that they were tasked with upholding so that they could defend an ideology that had torn our entire nation apart through a devastating war. And because of that decision, Jim Crow would rule the South for another 100 years. Organized terrorist campaigns against people of color were perpetrated by the KKK, and the KKK’s leadership invariably represented Southern political leadership. And it wasn’t crushed in its infancy because the Supreme Court didn’t respect the limitations of its place in American governance. It made itself above the law. Devastation followed.

I think many of us believe that our government is metaphysically compelled to behave in a certain way if that’s its Constitutional description, but that couldn’t be further from the truth. Our government tends to behave relatively stably because our society has an unhealthy reverence for norms and tradition, but the horrifying truth is that, although we have these “checks & balances” written into our constitution, the actual power that any branch has to limit the behavior of another branch is dependent on that branch agreeing to having its power checked.

No branch is more immune to these checks if it decides to go rogue than the executive. The President runs all of the departments of our government tasked with enforcing the rule of law. Who tells them no if they’ve broken the law? Federal law enforcement? The military? Intelligence/security? The President runs all of those operations.

On Facebook and Twitter earlier today, I wrote a series of posts about Donald Trump’s executive orders barring Muslim refugees/immigrants from specific countries in the Middle East. The law is vile racism at its core and the fact that it was issued on Holocaust Remembrance Day shows the utter disregard that the current administration holds for human rights. Of course, that shouldn’t be surprising. Steve Bannon is Donald Trump’s Chief Strategist, and he runs a white nationalist propaganda site. He now sits on the National Security Council. All of our nation’s top national security decisions are being at least partially made by a proud white supremacist. This sounds like something from a dystopian science fiction novel, but it’s the fact of American life right now. A Nazi sympathizer whose website had a segment just for black crime and would throw anti-Semitic slurs at Jewish journalists/writers that they felt threatened white supremacy is now in charge of our nation’s most consequential foreign and domestic policy. Let that sink in.

The thing about that particular executive order is that it’s painfully, blatantly unconstitutional. Only the most hardline, reactionary conservative reading of the Constitution would ever find an excuse for barring people from entering the country on the basis of their religion. The last time we had laws like this, we put innocent Japanese-American citizens in internment camps at the same time the Nazis were doing something hauntingly similar to the Jews. It wasn’t going to pass any review by the American judiciary. The Supreme Court is currently short a number and split 4-4 among Democrats and Republicans (a sure fire way to achieve a gridlocked court) but it’s a safe bet that Anthony Kennedy and maybe even John Roberts would rule against the constitutionality of this executive order. It flies directly in the face of any rational reading of the language of the constitution.

And, as it turns out, three federal judges feel similarly and have issued stays barring further implementation of this law until a proper hearing can be implemented. The State of California has sued the federal government for a constitutional violation. This issue will be fast-tracked to the Supreme Court. We’ll get an official ruling from the highest arbiter of the laws of our country very soon.

And what happens if/when Donald Trump decides that he isn’t obligated to follow the ruling of federal courts and continues to enforce this ban (or any other executive orders/laws his administration attempt to power through)? What happens when the executive branch ceases to recognize the legal validity of the judicial branch? The answer is that American constitutional government as we’ve always understood it to exist ceases to be. It’s replaced with something else, and we all need to be terrified to our bones if it reaches that point.

Recognizing that the presidency has to answer to other branches of government is the only thing that keeps the president from being a dictator. It holds all of the explicit tools of enacting/maintaining political power. The president has to agree to respect the limitations of his office; otherwise, you’ve given an authoritarian control of the military, law enforcement, taxation, and every other significant apparatus of the state.

This isn’t a hypothetical concern. Customs agents at several airports around the country (most notably Dulles and LAX) continued to enforce the Muslim ban even after the court order arrived requiring its stay. They were deferring to the commands of the executive branch in direct defiance of the judiciary who have the constitutional power to tell them how to behave in this particular instance. US Marshalls have apparently been dispatched to force a different branch of the executive to follow judicial orders (infighting between the career actors in the executive versus the more recent political appointees will be one of the most fascinating trends to study in the weeks ahead).

And so what does it mean if Donald Trump continues to explicitly signal that he intends to violate every established norm of our constitutional democracy? How do you respond to that? How do you resist that? If he has created a new rule for politics that exists outside and above the rule of law as we understand it as a country, how do you use the rule of law to resist? He’s proven to you that it doesn’t matter.

Do you declare the government illegitimate? Does a government that brazenly violates the most basic compacts of society deserve to be supported at any level? Should you pay it taxes? Should you respect its laws? Should you recognize the legitimacy of any of its decisions? Or should you declare that the compact that holds your society together broken? Should you bring the economic and industrial and military might of that society to its knees because to support it in any way would mean collaboration with oppression? Should you root out every last person responsible for these ghoulish horrors and rebuild a new society and new government built on liberty, equality, and fraternity… on that which is just and true? Should you do whatever it is you can with whatever resources you have because to do nothing means you are indistinguishable from the oppressors?

I can’t answer these questions for you. But every last person who has ever claimed to care about America and what her ideals should be needs to be thinking about these questions for themselves. And they should be thinking about what has to be done if American constitutional democracy has finally crumbled under the weight of authoritarianism.

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