Tom Ginsburg and Aziz Huq on How State Constitutions Can Offer Pro-Democratic Reforms

Is The Constitution The Problem?

Condemnations of our Constitution as undemocratic or evil are almost as old as the Republic. Abolitionist William Lloyd Garrison condemned the deal as a “pact with the devil”; President Woodrow Wilson slighted it as a barrier to modern administration; and historian Charles Beard painted it as a naked power grab by landed elites. The chorus of protest has not abated. Frequent targets of criticism in recent decades include the anti-majoritarian Senate wherein California and Wyoming have equal influence on national policy; an electoral college that has twice in the last five elections selected a “winner” who lost the popular vote; and the influence of the federal courts, where judges serve for life, and seem to have free-wheeling discretion to interpret vague constitutional text in light of their own policy preferences.

Today, a new global era of democratic backsliding has brought a more nefarious concern to the fore. This is the way in which our founding document may facilitate action by a president or party intended to undermine the integrity of democratic elections. It is not obvious from the text of the Constitution, for example, that a president could not pardon himself, perhaps even prospectively. Nor would anything prevent a president from pardoning his subordinates who engaged in willful criminal action at his behest, including violence or subterfuge aimed at disabling political opponents. According to the current status quo, as put forward in a memo from the Office of Legal Counsel, the President cannot be indicted for crimes while in office. So the only remedy for an anti-democratic presidential agenda is impeachment. But whatever one thinks of the Trump impeachment trial of 2020, it exposed arguments that presidents have unfettered power to resist any oversight. Most notorious—and rightly vilified—was Alan Dershowitz’s assertion in the course of the impeachment trial that “if a president does something which he believes will help him get elected in the public interest, that cannot be the kind of quid pro quo that results in impeachment.” Come back Richard Nixon—all is forgiven!

Read more at The American Interest

Constitutional democracy