The US constitution is the Enlightenment in words. It is also one of history’s greatest hostages to fortune.
Once the nascent republic bound itself with a hard-to-amend text, it all but invited social change to make a mockery (and sometimes a tragedy) of it. Ambiguities about voting rights and slavery took real-world crises to fix. The modern left is starting to chafe at the counter-majoritarian features of the Senate and the electoral college.
While there is self-interest in that grievance, criticism of the constitution, a man-made thing, is healthier than its occasional consecration as a divine work. But if there is to be a rolling performance review, then it should recognise the quiet effectiveness of the past two years. The constitution has done an under-sung job of curbing President Donald Trump.
The return of White House press credentials to Jim Acosta, a CNN reporter, was just the most eye-catching case of executive deference to the courts. When Trump tried to restrict transgender people in the armed forces, judges found against him. When he threatened to withhold federal funds from "sanctuary cities", he lost again.
It took a third iteration of his travel ban to survive the judiciary. In a losing streak that evokes the Chicago Cubs of the 20th century, his legal defeats have also involved the treatment of asylum claims, environmental deregulation and the Keystone XL oil pipeline. Although some rulings just slow or amend a presidential course of action and could be overturned, taken together they amount to a material impact on national government.
Note that when Trump loses, he fulminates against “Obama judges” and “extraordinary” verdicts. This is not nothing: a rhetorical threat to the rule of law is still a threat. But contrary to the fears of two years ago, there is no active defiance of the rulings. That would take the connivance of federal civil servants who, on balance, would rather not criminalise themselves, thank you very much.
It would also test the proposition that there is nothing Trump can do to turn Republicans against him. Explicit disobedience of the courts would put him in a new category of infamy, and he seems to know it.
This is just the judicial check on the president. The legislative branch has denied him full funding for his wall on the Mexican border. The House of Representatives will muster new kinds of resistance in 2019, when the fresh Democratic majority starts to scrutinise Trump's personal tax affairs and dealings with Russia. There are even legislative moves to screen Robert Mueller from presidential menaces.
The special counsel, with his probe into Russian meddling in the 2016 election, is Trump's ultimate torment. The founders did not create such an investigator (later statute did), but the constitution helps him in his work. It is fear of judicial punishment that appears to have moved some in the president's former orbit to co-operate. Mueller has suggested lenient sentencing for Michael Flynn, Trump's first national security adviser, in return for his help. In a broken system, the criminal law loses its power to intimidate. In the US, that power remains awesome.
Policy choices
On the subject of hostages to fortune, this column is one. Perhaps the worst stresses on the constitution are to come. Some of Trump's critics say he already obstructed justice when he fired James Comey as director of the FBI last year.
On the balance of evidence, however, the system is holding up. The basic survival of a rules-based republic is no cause for euphoria – until you remember the historic lowness of expectations in late 2016.
Changing mores rendered obsolete some parts of the original constitution. The structure of government is not among them. The division of power among executive, legislature and judiciary might have been drafted yesterday for all its contemporary usefulness. No doubt, Trump still errs – the tariffs, the strongman-flattery – but these are policy choices well within a president’s rights. When he strays outside those rights, an ensemble of judges, lawmakers and investigators heaves into view.
Such is the sign of a stressed but functioning system. Long ago, “constitutional crisis” joined “decimation” and “public good” in the registry of nouns that are debased through wanton misuse or overuse. If the founding document has nothing to say about the handling of a real-world crisis, or if politicians refuse to obey it, a crisis is in effect.
The US is not there yet, or even all that close. Whether the founders envisaged someone quite like Trump, their parchment currently reeks of prescience. – Copyright The Financial Times Limited 2018