January 8, 2021

Our Constitution Has Failed: It’s Time for a New One

Chris Edelson Assistant Professor of Government, American University School of Public Affairs

One of the first steps in dealing with a problem is understanding it. It looks like we have (at least) several major problems in the United States today:

  • a president who refuses to accept the results of an election he lost and, in the words of Rep. Liz Cheney (R-WY) “incited [a] mob” to carry out “a violent…assault [on] the U.S. Capitol” on Wednesday
  • more than 350,000 Americans dead in less than a year from a pandemic that has also caused widespread economic distress
  • a sweeping cyberattack against government and private entities in the US
  • deadly racial injustice that prompts mass protest yet continues unabated
  • a climate crisis that promises only to get worse.

These crises have different causes, but our inability to mitigate them--or, in many ways, even to try--is fundamentally the result of one central problem--a failed constitutional system that has left the United States unable to respond to national challenges and unable even to defend democracy itself against an existential internal threat.

The Constitution’s failure to do what we reasonably expect it to do helps explain our inability to address the crises listed above. The framers created the Constitution when the government described by the Articles of Confederation proved too weak to make the country work (one of the central concerns on their mind was the national government’s inability to suppress an insurrection in the winter of 1786, a concern all too relevant this week). In its original form, the Constitution did not fully provide for what is now called a liberal democracy--a system with free and fair elections, individual rights, limits on the power of the majority as well as government officials, and the rule of law.  Over the past 233 years, a modern liberal democracy ultimately, though painfully, emerged--based both on the verbal promises now contained in an amended Constitution as well as informal norms.  The constitutional system also evolved to provide the government with authority needed to address new challenges. As Supreme Court Justice Robert H. Jackson wrote in 1952, the Constitution “contemplates that practice will integrate the dispersed powers [of the federal government] into a workable government”--a government with the power necessary to fulfill its assigned responsibilities.

Our system depends on a delicate balance--a government strong enough to capably respond to pressing national problems, yet not so unchecked that officeholders are able to shrug off limits on power and rule as authoritarians.  A government too weak to carry out its responsibilities (like the government under the failed Articles of Confederation) is a failed government. A government with a president who rejects the notion of limits on his or her power is also a failed government.

At the moment, we are experiencing both kinds of failures. One example of the first kind of failure--a government incapable of performing its duties--is the response to the pandemic. Vaccines are, thankfully (though somewhat haphazardly) being rolled out--but in the meantime, we collectively accept record-setting death tolls unmatched in other countries. No one could magically make the virus disappear, but President Trump has decided he will not even try. When it comes to the pandemic, we are effectively operating with the functional equivalent of no president. As Maryland Gov. Larry Hogan put it, “in the worst part of the battle, the general was missing in action”. In a functioning system, members of Congress would use available constitutional tools to force a change in course. In our failed system, that won’t happen--no matter how high the death toll rises.

The failure even to try when it comes to central aspects of the pandemic is a failure of weakness--what Kim Lane Scheppele and David Pozen call “executive underreach”. Trump’s reaction to the election is one example from the flip side of the coin--dramatic overreach aimed at illegitimately overturning the results. Last month, there were reports that Trump asked advisers about the possibility of “impos[ing] and deploy[ing] the military to “rerun” the election.” In a clear indication that there were real concerns about what could happen, all 10 living former defense secretaries signed on to an extraordinary op-ed calling on current Department of Defense officials to “refrain from any political actions that undermine the results of the election…” As political scientist Brendan Nyhan pointed out, “the fact that a coup is being considered and the President is not being immediately impeached and removed from office is a sign of profound democratic erosion.”

It is clear that Trump will desperately try all he can to hang on to power. Last week, we learned that the president pressured Georgia’s secretary of state to reverse his electoral defeat in that state. Trump’s brazen efforts to overturn the results of a free and fair election were caught in an audio recording. A few days later, many Americans watched in horror on live television as Trump supporters breached security, occupied the Capitol, and forced members of Congress to abandon the formal process of recognizing Joe Biden’s election victory, seeking cover from an angry mob incited by the president. Former Attorney General William Barr put into words what was obvious: Trump had “orchestrat[ed] a mob to pressure Congress” in a “betrayal of his office”. Sen. Mitt Romney (R-UT) put it even more bluntly, declaring that “what happened [at the Capitol] was an insurrection, incited by the President of the United States”.

In a functioning system, Republicans would have joined with Democrats to immediately remove Trump from office In our failed system, although some legislators circulated articles of impeachment the day after the assault on the Capitol, there is little indication that Congress will take the prompt action necessary to protect the nation; in fact, the House and Senate are out of session for more than ten days. Speaker of the House Nancy Pelosi has called on Vice President Mike Pence and the cabinet to invoke the 25th Amendment; if not, she says the House will begin impeachment proceedings. It is unclear whether Republicans would join Democrats, and whether senators would even be available to act, given that many may have already left the capital city. If there is not prompt action the rest of us will be left to keep our fingers crossed and hope there is no repeat of the January 6 uprising in the nearly two weeks days left until Biden’s inauguration.

Recognizing that our Constitution has failed is not to say that all hope is lost. Some important safeguards--the courts, state and local officials, the military--have held up. But this offers only a temporary reprieve from the dangers of both disabling gridlock that leaves government unable to take on national problems and authoritarian overreach that seeks to put an end to constitutional democracy itself.

No system can guarantee its survival, but if the Constitution has failed, we can think creatively about how to increase the odds in favor of liberal democracy. We need a constitution that is both more liberal, with more effective limits on power as well as improved safeguards against corrupt (or even insurrectionist) government officials and more democratic, with a majority of votes required to win presidential elections and gain control of both chambers of Congress. When the Articles of Confederation failed, the framers started over with a new constitution. Something similar is needed today, although at the moment, the prospect of drafting a new constitution is wildly implausible.  It’s past time, however, to consider the cost of inaction. If we do nothing, these pathologies will persist.  We need creative thinking to find a solution to the problem of our Constitution’s failure.

Chris Edelson is an assistant professor of government in American University’s School of Public Affairs. He has written two books on presidential power. Follow him @ChrisEdelson on Twitter.

Executive Power, Separation of Powers and Federalism