The US Constitution is less a fixed “thing” than a process of creation and re-creation, an intergenerational project of stress and growth. President Donald Trump, without remotely appreciating or caring about what he has been doing, has engaged that creative process in transformative ways.
CAMBRIDGE – The United States is living through a remarkably convulsive period in its history. Donald Trump has reshaped the American presidency, and his norm-shattering behavior has tested the US Constitution in profound ways. He has placed stress on points of constitutional vulnerability, particularly when it comes to judicially unenforceable norms of respect for fact-based reality, for orderly decision-making, and for investigatory and prosecutorial independence.
Trump’s rise to power has also raised questions about some of the Constitution’s most solidly entrenched provisions. His victory in 2016 highlighted the dangers posed by the Electoral College in the face of changing demographic realities, and now his presidency is testing the viability of the impeachment process to cope with a demagogue who has captured the machinery of an entire political party and controls one chamber of Congress.
Some have argued that that the Trump presidency represents no more than a mere “blip” in American history. Justice Ruth Bader Ginsburg believes that historians will view our current moment as no more than “an aberration.” Others have suggested similar notions, characterizing the question of Trump’s long-term impact on American politics and society as up for debate. The arc of history is long, go such arguments, and this presidency will look much smaller in the rear-view mirror than it does today.
I doubt that. In my view, we are living through a transformative moment in American life. Trump has reshaped the contents of American constitutionalism, doubtless in ways he cannot begin to comprehend. Even if the precise nature of that reshaping remains to be determined, the US Constitution will never be the same.
That is not solely a commentary on the harm Trump might do, or the hope he might reveal. Rather, it is a testament to the organic nature of America’s founding document and of the institutional matrix that frames it. The Constitution is less a fixed “thing” than a process of creation and re-creation, an intergenerational project of stress and growth. Trump, without remotely appreciating or caring about what he has been doing, has engaged that creative process in transformative ways. And the effects will reverberate through America’s legal and social fabric for generations.
An Evolving Framework
Trump’s presidency thus reminds us of a fundamental truth about the character of the American constitutional order. Our Constitution has always been an active, participatory enterprise. Only its bare outlines are hard-wired; the rest provides the locus for the spirited, difficult debates that characterize our vibrant republic. This presidency has driven sustained, formative national engagement with those debates. Trump’s actions, and the actions taken in response, will in no small part define what the Constitution means for the next generation. This is not just a result of his success in placing judges on the country’s federal courts, including the Supreme Court. Trump’s constitutional legacy will also reflect his influence on the informal interactions among ordinary citizens and opinion leaders – and of such presuppositions as those undergirding the very idea of the rule of law – that do as much as formal judicial rulings to identify the Constitution’s living meaning.
At a time when democracy is under threat, there is an urgent need for incisive, informed analysis of the issues and questions driving the news – just what PS has always provided. Subscribe now and save $50 on a new subscription.
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This historical moment has thrust the process of constitutional transformation and innovation to center stage in American political life. Most Americans agree that our national institutions are currently not serving us well. Although there are signs of innovation at the local level, our national legislature is characterized by utter dysfunction. Our federal judiciary is transparently politicized. And this president arrogates to himself ever more power, which he exercises with nearly unchecked abandon. Some even feel increasing skepticism about our Constitution as a whole and wonder if fundamental change is the only answer. In many ways, as Harvard’s Danielle Allen has put it, “[w]e are in our Articles of Confederation moment.”
As a consequence, constitutional reinterpretation (or amendment) is no longer a quixotic mission on the fringe of our national discourse. Such transformation has become among our public conversation’s dominant features. Major political candidates have proposed altering the structure of the Supreme Court. Ranked-choice voting has entered the national discourse. The Overton window for constitutional change has flown wide open.
Perhaps the stress our system is undergoing has helped drive into the mainstream a real hunger to cast off fundamental social and political premises that many find unjust. Or perhaps that hunger was already fighting its way into the mainstream, and this chaotic presidency merely coincides with its ascendancy. In any event, our society seems to be on the precipice of a moment of fundamental social change: a nation on the brink, though of what we do not yet know.
So we live in a moment of intense constitutional pressure. The stakes are almost unimaginably high. And what happens next depends in no small part, but not entirely, on what we fashion for ourselves from this self-inflicted national trauma, an observation that of course requires us to define who “we” are – and whom “we” ought and ought not to become. How the impeachment inquiry currently underway unfolds will no doubt represent a key input into that equation.
The Future Is Unwritten
Just as it seems certain that this presidency will change the course of our nation, it is also uncertain what the result of that change will be. Nor is this the sort of uncertainty that a sufficiently wise scientist could eliminate just by studying enough data and applying suitably sophisticated algorithms. It is not akin to the uncertainty of the next 9.0 earthquake, which might in principle be knowable even if we are unable to do the needed calculations. This is an uncertainty built into the very idea of free will. The future is ours to fashion, to create.
This moment might inaugurate a return to first principles, a rebirth of the US Constitution’s fundamental promises. Perhaps we have an opportunity to rediscover the Constitution’s noblest values and extend their promise further than ever before. Or perhaps this moment will have hopelessly undermined our constitutional system, marking the culmination of an age of dysfunction, the inflection point in a national turn toward ruin. Unlike the future that Supreme Court Justice Felix Frankfurter once described as hidden in the womb of time, the future of our constitutional journey is hidden because we have yet to choose it.
Among the things I hope this traumatic national period can achieve is a more honest confrontation with our deeply troubling past, and a fuller acknowledgment that the lessons our Constitution has to teach must be the subject of contestation rather than computation. If that happens, our current brush with tyranny will have strengthened us for our next close encounter with genuine authoritarianism. And in so doing it will have left us better equipped to weather the storms that will continue to batter our republic.
US Supreme Court Justice Robert Jackson famously described the “fixed star[s] in our constitutional constellation.” His metaphor feels singularly suggestive in this time of constitutional change. Stars may be “fixed,” but the constellations they form are products of human imagination and ingenuity, not cosmologically determined features of the observable universe. So, too, charting our current waters requires human judgment. The Constitution lights the way, but the task of navigation falls to us. And this benighted president has unwittingly sparked debate over how to navigate the ship – by what stars, to what shore, and on whose say-so. We now must seize this moment to look toward a more inclusive horizon, and together decide which points of light are worth following – and which we should release into the darkened night.
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On December 19, Indian historian Ramachandra Guha was arrested while peacefully demonstrating against India’s Citizenship Amendment Act, which openly discriminates against Muslims in its treatment of immigrants from neighboring countries.
In this commentary for Project Syndicate’s special year-end magazine, Guha reflects on the erosion of India’s democratic institutions under Prime Minister Narendra Modi’s government. Subscribe today to receive The Year Ahead, 2020.
laments the country's transformation into a Hindu-nationalist state under Prime Minister Narendra Modi.
CAMBRIDGE – The United States is living through a remarkably convulsive period in its history. Donald Trump has reshaped the American presidency, and his norm-shattering behavior has tested the US Constitution in profound ways. He has placed stress on points of constitutional vulnerability, particularly when it comes to judicially unenforceable norms of respect for fact-based reality, for orderly decision-making, and for investigatory and prosecutorial independence.
Trump’s rise to power has also raised questions about some of the Constitution’s most solidly entrenched provisions. His victory in 2016 highlighted the dangers posed by the Electoral College in the face of changing demographic realities, and now his presidency is testing the viability of the impeachment process to cope with a demagogue who has captured the machinery of an entire political party and controls one chamber of Congress.
Some have argued that that the Trump presidency represents no more than a mere “blip” in American history. Justice Ruth Bader Ginsburg believes that historians will view our current moment as no more than “an aberration.” Others have suggested similar notions, characterizing the question of Trump’s long-term impact on American politics and society as up for debate. The arc of history is long, go such arguments, and this presidency will look much smaller in the rear-view mirror than it does today.
I doubt that. In my view, we are living through a transformative moment in American life. Trump has reshaped the contents of American constitutionalism, doubtless in ways he cannot begin to comprehend. Even if the precise nature of that reshaping remains to be determined, the US Constitution will never be the same.
That is not solely a commentary on the harm Trump might do, or the hope he might reveal. Rather, it is a testament to the organic nature of America’s founding document and of the institutional matrix that frames it. The Constitution is less a fixed “thing” than a process of creation and re-creation, an intergenerational project of stress and growth. Trump, without remotely appreciating or caring about what he has been doing, has engaged that creative process in transformative ways. And the effects will reverberate through America’s legal and social fabric for generations.
An Evolving Framework
Trump’s presidency thus reminds us of a fundamental truth about the character of the American constitutional order. Our Constitution has always been an active, participatory enterprise. Only its bare outlines are hard-wired; the rest provides the locus for the spirited, difficult debates that characterize our vibrant republic. This presidency has driven sustained, formative national engagement with those debates. Trump’s actions, and the actions taken in response, will in no small part define what the Constitution means for the next generation. This is not just a result of his success in placing judges on the country’s federal courts, including the Supreme Court. Trump’s constitutional legacy will also reflect his influence on the informal interactions among ordinary citizens and opinion leaders – and of such presuppositions as those undergirding the very idea of the rule of law – that do as much as formal judicial rulings to identify the Constitution’s living meaning.
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At a time when democracy is under threat, there is an urgent need for incisive, informed analysis of the issues and questions driving the news – just what PS has always provided. Subscribe now and save $50 on a new subscription.
Subscribe Now
This historical moment has thrust the process of constitutional transformation and innovation to center stage in American political life. Most Americans agree that our national institutions are currently not serving us well. Although there are signs of innovation at the local level, our national legislature is characterized by utter dysfunction. Our federal judiciary is transparently politicized. And this president arrogates to himself ever more power, which he exercises with nearly unchecked abandon. Some even feel increasing skepticism about our Constitution as a whole and wonder if fundamental change is the only answer. In many ways, as Harvard’s Danielle Allen has put it, “[w]e are in our Articles of Confederation moment.”
As a consequence, constitutional reinterpretation (or amendment) is no longer a quixotic mission on the fringe of our national discourse. Such transformation has become among our public conversation’s dominant features. Major political candidates have proposed altering the structure of the Supreme Court. Ranked-choice voting has entered the national discourse. The Overton window for constitutional change has flown wide open.
Perhaps the stress our system is undergoing has helped drive into the mainstream a real hunger to cast off fundamental social and political premises that many find unjust. Or perhaps that hunger was already fighting its way into the mainstream, and this chaotic presidency merely coincides with its ascendancy. In any event, our society seems to be on the precipice of a moment of fundamental social change: a nation on the brink, though of what we do not yet know.
So we live in a moment of intense constitutional pressure. The stakes are almost unimaginably high. And what happens next depends in no small part, but not entirely, on what we fashion for ourselves from this self-inflicted national trauma, an observation that of course requires us to define who “we” are – and whom “we” ought and ought not to become. How the impeachment inquiry currently underway unfolds will no doubt represent a key input into that equation.
The Future Is Unwritten
Just as it seems certain that this presidency will change the course of our nation, it is also uncertain what the result of that change will be. Nor is this the sort of uncertainty that a sufficiently wise scientist could eliminate just by studying enough data and applying suitably sophisticated algorithms. It is not akin to the uncertainty of the next 9.0 earthquake, which might in principle be knowable even if we are unable to do the needed calculations. This is an uncertainty built into the very idea of free will. The future is ours to fashion, to create.
This moment might inaugurate a return to first principles, a rebirth of the US Constitution’s fundamental promises. Perhaps we have an opportunity to rediscover the Constitution’s noblest values and extend their promise further than ever before. Or perhaps this moment will have hopelessly undermined our constitutional system, marking the culmination of an age of dysfunction, the inflection point in a national turn toward ruin. Unlike the future that Supreme Court Justice Felix Frankfurter once described as hidden in the womb of time, the future of our constitutional journey is hidden because we have yet to choose it.
Among the things I hope this traumatic national period can achieve is a more honest confrontation with our deeply troubling past, and a fuller acknowledgment that the lessons our Constitution has to teach must be the subject of contestation rather than computation. If that happens, our current brush with tyranny will have strengthened us for our next close encounter with genuine authoritarianism. And in so doing it will have left us better equipped to weather the storms that will continue to batter our republic.
US Supreme Court Justice Robert Jackson famously described the “fixed star[s] in our constitutional constellation.” His metaphor feels singularly suggestive in this time of constitutional change. Stars may be “fixed,” but the constellations they form are products of human imagination and ingenuity, not cosmologically determined features of the observable universe. So, too, charting our current waters requires human judgment. The Constitution lights the way, but the task of navigation falls to us. And this benighted president has unwittingly sparked debate over how to navigate the ship – by what stars, to what shore, and on whose say-so. We now must seize this moment to look toward a more inclusive horizon, and together decide which points of light are worth following – and which we should release into the darkened night.