Some well-educated and thoughtful friends of mine are so offended by President Trump and his cronyocracy that they say our system of government is broken beyond repair. The graft, corruption, news twisting, propaganda, the president’s seeming imperviousness to the rule of law and his administration’s environmental atrocities and abysmally inhumane immigration policies have made our “system” seem intolerable. And when you add to this cesspool of greed and shady dealings the incompetence and ineffectiveness of Congress and the partisan bias of the courts, some of my friends say American political culture and its founding documents are in need of profound structural reform. They aren’t quite up to saying, however, what those reforms might be.
The way things are going in the wake of the Cohen guilty plea and Manafort conviction, Trump’s presidency itself could be abandoned by his band of rats and sink before our eyes. Then, radical structural reform would only have to deal with insane Republicanism and its hatred of government and dark suspicions of most citizens who aren’t American Gothic or don’t have gold fixtures in their toilets.
But delousing American politics of Trump, himself, and reforming its structure to provide ways of banishing crooks from the White House raises the specter of a constitutional convention. And that makes me shudder. With cultural and political polarization as entrenched as it is in contemporary America, we risk seeing a new document that seriously undercuts or even eliminates what constitutional protections we possess as individuals.
When good will has been discarded and political compromise is interpreted as ideological treason, quite literally anything can happen.
We don’t have to look far into our history, or into our modern loathing of politics, to see how the worst could come about. Here’s two examples.
FBI Director J. Edgar Hoover, who served from 1924 to 1972 as the G-Man arch enemy of organized crime and “communism,” had drawn up a list in 1950 of some 12,000 “potentially dangerous” Americans to be arrested without “probable cause” or the right to a trial and warehoused in prisons and American versions of concentration camps. Hoover’s plan called for “permanent detention” to “protect the country against treason, espionage and sabotage.” His list, or index of “proscription,” would have seen the constitutional rights of left-thinking Americans dumped in the trash. “Detainees” would have been subjected to the exquisite torture and living death of indefinite incarceration, in other words a Gitmo for Americans.
We learned of Hoover’s horror from declassified documents released in 2007 in the wake of 9/11 and then, unhappily, forgotten. It was the menacing spirit of J. Edgar Hoover that moved George W. Bush to suspend the Writ of Habeas Corpus, as Hoover had admonished President Harry Truman to do, and permanently lock up “suspected” terrorists at Guantanamo Bay, Cuba, with no “due process” of law. Truman, to his profound credit, never empowered Hoover’s proscription of Americans and never signed the bill that would have brought it about. This is, of course, not unlike the indefinite detention of “illegal” immigrants, the separation of children from their parents, and the virtual death-sentence deportations being carried out by the Trump administration today, returning asylum seekers into the hands of those they were fleeing for their lives.
The second example came in September 2017. Washington Post columnist Catherine Rampell wrote a piece with a headline reading, “A chilling study shows how hostile college students are toward free speech.” In a survey of 1500 undergraduate students by the Brookings Institution, Rampell described how a fifth of them affirmed that it was just fine to use “physical force to silence a speaker who makes ‘offensive and hurtful statements.’” To a Trump supporter that might well mean the entire Fourth Estate, and virtually all its publishers, editors, writers and pundits. Rampell writes that “when students were asked whether the First Amendment protects ‘hate speech,’ 4 in 10 said no. This is, of course, incorrect. Speech promoting hatred — or at least, speech perceived as promoting hatred — may be abhorrent, but it is nonetheless constitutionally protected.” It is protected in the belief that it is better in a democracy to have a free exchange of ideas that reveal true feelings and biases than a milquetoast censorship that hides the truth. And it is also motivated by the rule of equality, as “in equal justice under law,” that implies what you do to one you do to all. Censor conservatives and, sure as the law of equal and opposite reaction in physics, liberals will be censored too. And in response to this intellectual violence, physical violence could well ensue.
Radically restructuring the Constitution in such a climate and in a nation with such a recent history as ours is the formula for a draconian nightmare. The best we can hope to do is strengthen and universalize the protections of individual rights already in the Constitution and propose amendments that fill the constitutional gaps that are appearing in the balance of powers that President Trump’s wild behaviors are revealing.
I can just see at a constitutional convention with modern conservatives working to rewrite the First Amendment in such a way as to sanction censorship of the press, to allow the creation of a state religion, and curtail the right to peaceably assemble and petition our leaders. I can see Tea Party delegates to such a convention working successfully to make it easier to suspend the Writ of Habeas Corpus, thus allowing citizens to be detained without a trial of evidence. I can see moves against Article I Sections 9 and 10 making ex post facto legal, meaning that one could be arrested for doing something that was legal at the time one did it, but that had been made retroactively illegal. One might see “bills of attainder” made legal in which individuals and groups could be singled out for special punishments. It’s not beyond imagining that the 8th Amendment banning “cruel and unusual punishments’ could be weakened, that the 4th Amendment protecting us against unreasonable searches and seizures could be eliminated (some say digital spying already has). We could see double jeopardy, and protection of grand jury, and prohibitions against self-incrimination come under attack, as well as the right to trial by an impartial jury and the right to confront hostile witnesses and seek evidence of your innocence. And one could also foresee a serious attack against the 14th Amendment that makes it clear that all persons born or naturalized in the United States are citizens both of the United States and of the state in which they reside, and that no separate state may “abridge the privileges or immunities of citizens of the United States” nor “deprive any person of life, liberty or property without due process of law.”
Can the Constitution be improved? I suppose so. But I’m not sure how. And it has an internal way to do it — though amendments. But if changes to the constitution are made it is imperative that they be done in a context of a wiser, less angry, more confident America than ours is today. If not, we risk the menace of draconian absolutism rendering us into a kind of totalitarian confederacy in which local prejudices and ill will do away with the long struggle to establish, once and for all, equal justice under law.
*Nullius in verba: take nobody’s word for it
(Image of Donald Trump by Gage Skidmore)