A New Foundation
Clinging to the current Constitution isn’t an option. By Luke Pickrell
In his 2013 article, “Slave Capitalism,” Gabriel Winant described the necessity of historical understanding.
In left-wing thought, there’s always been a powerful emancipatory possibility associated with understanding the past; the specific opposite of false consciousness is historical consciousness. To see yourself in time is to grasp the way the world is in flux. Anyone who has ever done any kind of political organizing learns this intuitively: the work of mobilizing is always in urging people to un-forget, to see how their circumstances came to be, how others responded to similar circumstances in the past, and how they might also—now, today. To engage in political struggle is necessarily to do history.
The latest New York Times editorial board article—“Who Will Defend the Defenders of the Constitution?”—lacks this crucial historical perspective. It fails to illuminate how we arrived at our present moment. Instead, it is a reactive statement that neither interrogates the past nor considers the future.
Following Winant, the first reason the Times statement lacks historical perspective is its disinterest in political organizing. The Times is not addressing the hundreds outside Tesla showrooms, the thousands of people protesting Mahmoud Khalil’s abduction, the tens of thousands in the Democratic Socialists of America (DSA), or the nearly three out of every four Americans who didn’t vote for Trump. Instead, it appeals to lawyers and judges—especially unelected federal judges and Supreme Court justices—hoping they will use the constitutional rule of law against Trump in the courtroom.
“Every time a judge or lawyer steps forward,” writes the Times, “it becomes easier for others to speak out and harder for Mr. Trump to isolate any one person standing up for the law.” If Trump continues to defy court orders, the authors urge judges to “begin holding his lawyers and aides in contempt,” and note that “Justice Roberts, as well as his Supreme Court colleagues, may have to become bolder about protecting the legal system they oversee.”
Faced with Trump’s attempt to concentrate power in the executive, we are told to trust the judicial branch to make things right. Meanwhile, ignore the fact that federal judges are unelected; that the Supreme Court brazenly stole the elections for Bush in 2000; that five of the six conservative Justices—Roberts, Alito, Gorsuch, Kavanaugh, and Barrett—were nominated by presidents who lost the popular vote; or that the Supreme Court, led by the suddenly praiseworthy Roberts, gave the executive extraordinary powers in Trump v. United States.
The second reason the Times statement lacks historical perspective is its unwavering faith in the existing Constitution. In the face of Trump, its only solution is more Constitution —even though Trump gets much of his power, including executive orders, from what the framers wrote.
An honest investigation of what led to the present moment brings us back to the Constitution itself.
Trump lost the popular vote in 2016 but came to power thanks to the Electoral College, an archaic contraption created to hedge against the “well-meaning, but uninformed people.” Once in office thanks to the Electoral College, Trump’s Justices were confirmed by the infernal and comically undemocratic Senate. Thanks to its malapportioned system of representation in which each state gets two senators regardless of population, all of Trump’s nominees—Gorsuch, Kavanaugh, and Barrett—were confirmed by senators representing a minority of the population. In 1991, Justice Thomas was also confirmed by a Senate majority representing less than half the population. It’s now common knowledge that Thomas is on a billionaire’s payroll and Alito sympathizes with the far right.
Republican majorities in the Senate helped Trump during his first term. However, in 2016, the Republican 52-seat majority represented only 45 percent of Americans; in 2018, its 53-seat majority represented only 48 percent. The Senate split 50-50 in 2020, but the 50 Democratic senators represented 55 percent of Americans or 41.5 million more people than the 50 Republican senators. Due to population shifts, by 2040, some 70 percent of the country living in the 15 largest states will be represented by only 30 senators. Such is the logic of the malapportioned Senate, an unchangeable system designed—as in all bicameral systems—to check the power of the lower house.
As Daniel Lazare wrote after the decision in Trump v. United States, impeachment is supposedly the first line of defense against a runaway presidency. Yet, the onerous conditions for impeachment—a two-thirds vote of the Senate—make the process extremely difficult. Since the Senate is organized on equal state representation, just 34 senators from 17 states representing less than eight percent of the population are enough to acquit. Trump was impeached in 2019 and 2021. Though I don’t know anyone who’s crunched the numbers, the senators who voted against impeachment in 2019 likely represented fewer Americans than those who voted for impeachment. In 2021, the 57 Senators who voted to impeach Trump clearly represented a majority of Americans. But thanks to the Constitution, only 67 votes (two-thirds) would have resulted in impeachment.
The Times cannot give a thorough historical accounting because it can’t see how the same constitutional order it wants to defend is largely responsible for the current mess. Its authors can’t understand the past because they continue to misunderstand the fundamentally undemocratic nature of our present political system.
“For decades,” wrote Lazare after Biden’s infamous debate performance, “a handful of critics have been warning that an eighteenth-century constitution that is both unworkable and unchangeable is a recipe for disaster. And for decades, they’ve been right. U.S. society has gone through various stages of denial as the constitutional vise has tightened: anger, frustration, paralysis, and spiraling corruption as it became clear that political controls were ineffectual and it was, therefore, every man for himself.”
The Times editorial board statement is another manifestation of this denial — a refusal to recognize that there’s no constitutional path out of this crisis; that clinging to the existing, decayed system and hoping a few unelected judges will save us is a non-starter.
We must struggle for a new political foundation—a new constitution—built on universal and equal rights and structured around a unicameral legislature elected by universal and equal suffrage. We need a new foundation.