The Vise Tightens

By Luke Pickrell

One year ago this week, Nancy Pelosi published a guest essay in the New York Times defending the Constitution and the Democratic Party. She was responding to Aziz Rana, whose earlier Times article — “The Constitution Won’t Save Us From Trump” — argued that far from acting as a “bulwark” against the Right, the Constitution had “made our democracy almost unworkable.” To “turn the page” on Trump, Rana insisted, the country would need to “fundamentally” change its founding document.

Pelosi’s response was swift and conventional: not so fast. Rather than writing a new constitution, Americans needed to elect Democrats who would pass the Freedom to Vote: John R. Lewis Act to stop voter suppression, and the Disclosure Act to curtail Citizens United. “President Biden, a patriotic and determined champion for democracy,” waxed Pelosi,

has been forceful in his support for these reforms. But shamefully, Senate Republicans are the final obstacle. When we retake the House, hold the Senate, and re-elect Joe Biden in 2024, the filibuster must be pulled aside so this democracy-advancing legislation can become law.

That prediction hasn’t aged well. Pelosi, once confident that the Constitution could solve its own problems thanks to the leadership of the intrepid Democratic Party, has been cast aside. Meanwhile, Rana’s critique grew legs, started running, and shows no signs of slowing down.

“For decades,” wrote Daniel Lazare after Biden’s notorious 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 vise has only tightened since Trump’s return to the political stage, and more establishment figures are beginning to feel the pressure.

The latest is Jack Goldsmith, a former assistant attorney general under George W. Bush and “one of the brightest stars in the conservative legal firmament," according to former National Constitution Center CEO Jeffrey Rosen. In an op-ed published Monday in the Times — “We Have To Deal With Presidential Power” — Goldsmith argued that Trump has exploited the “excesses of recent presidencies” to impose broad tariffs, issue pardons, and fire off a deluge of executive orders.

There’s something rotten in the executive branch that predates Trump. Goldsmith warns of a “downward spiral of constraints on executive power,” in which “small departures from traditional limits that seem justified for short-term gains serve as a road map for escalations.” The executive keeps getting stronger, and there’s seemingly no way to reverse the trend given an often unwise and controversial Supreme Court, and the “decline of a responsible Congress” that’s too “dysfunctional” to adopt needed policies.

“The presidency needs reform,” Goldsmith argues, “and Americans must consider ways — however implausible they may seem in the context of today’s politics — to get there.” There’s only one option left, he concludes, before shutting his eyes and pressing the big red button: America needs a constitutional reform.

Props to the former assistant attorney general for realizing that the Constitution needs to change; that’s one thing that many people aren’t willing to say. But his solution is anticlimactic because the button is a dud due to “a 140-word run-on sentence known as Article V.” Daniel Lazare continues:

A [constitutional convention] will probably never occur, but even if it does, the chances of it leading to actual constitutional change are nil. It’s a spectacle designed to titillate the conservative base while allowing Democrats to grandstand as protectors of the country’s most cherished institutions. Otherwise, it’s meaningless.

And so we’re back at square one. The problems escalate, the constitutional vise tightens, and the release lever remains glued shut. Goldsmith dares to mention the need for change — but not the kind that matters. The only real solution, the one no respectable establishment figure will say out loud, is to stop playing by the Constitution’s rules. Forget Article V. Convene a constituent assembly. Draft a new founding document.