What The Hell America!

Donald Trump is continuing his assault on many of the rights found in the Constitution, including freedom of speech, due process, and birthright citizenship. Moreover, his administration has appeared willing to defy federal courts that find his actions unconstitutional.

In this environment, many commentators are doubling down on a set of rules written in 1787 as a bulwark against Trump’s agenda. Case in point is a recent New York Times editorial board article — “Who Will Defend the Defenders of the Constitution?” — which asks the Supreme Court justices to become “bolder about protecting the legal system they oversee.” The Times is not alone in hoping the Constitution will stop Trump’s agenda. University of California, Berkeley, law dean Erwin Chemerinsky has declared that “the only checks on the unconstitutional acts of the Trump administration will come from the courts.” MSNBC host Chris Hayes insists that Trump’s vision of executive power “is the absolute nightmare of our founders.” Jamelle Bouie, in a Times op-ed, describes Trump’s abuses as a degradation of the “constitutional order.” And during their Fighting Oligarchy tour, Bernie Sanders and Alexandria Ocasio-Cortez advised Trump to “read the Constitution.”

But an honest investigation of what led to the present moment brings us back to the Constitution itself. Trump came to power in 2016 despite losing the popular vote — an outcome enabled by the Electoral College, an eighteenth-century contraption designed to insulate elite rule from democratic majorities. Once in office, Trump’s Supreme Court justice nominations were confirmed by the 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 — Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett — were confirmed by senators representing a minority of the population.

The problem predates Trump, of course. In 1991, Justice Clarence Thomas was also confirmed by a Senate majority representing less than half the population. (To make matters worse, it’s now common knowledge that Thomas is on a billionaire’s payroll.) Five of the six conservative justices — Gorsuch, Kavanaugh, and Barrett, as well as John Roberts and Samuel Alito — were nominated by presidents (George W. Bush and first-term Trump) who lost the popular vote.

Over the last two decades, a conservative Supreme Court has decimated environmental protections, attacked voting rights, empowered the police, expanded corporate campaign influence, and criminalized homelessness. In Trump v. United States, the court handed the executive expansive powers by ruling that presidents have at least presumptive immunity from prosecution for basically all actions they take in office. The ruling prompted Justice Sonia Sotomayor to write in dissent, “Orders the Navy’s SEAL Team 6 to assassinate a political rival? Immune. Organizes a military coup? Immune. Takes a bribe in exchange for a pardon? Immune.”

Unlike in many other countries, the US president exercises vast unilateral powers. As law professor Ziyad Motala notes, the president can halt or pursue prosecutions, override regulatory decisions, purge officials, and shape immigration policy with minimal legislative or judicial constraint. And the presidency, as it exists today, is a creation of constitutional design and precedent, not an aberration from it.

Trump’s grip on power has been reinforced by the Senate, an institution that does not represent the majority viewpoint of Americans. In 2016, a fifty-two-seat Republican majority represented states that were home to just 45 percent of the US population; in 2018, the party’s fifty-three-seat majority represented only 48 percent. Even when the Senate split 50–50 in 2020, Democratic senators represented 55 percent of the country, over 41 million more people than their Republican counterparts. When the John Lewis Voting Rights Act was filibustered in 2021, the number of senators who voted in favor of the bill fell short of the necessary sixty-vote threshold. Yet they represented nearly 130 million more Americans than the senators who voted against the bill. The same scenario played out in 2022.

Today’s Republican majority of fifty-three senators represents about 24 million fewer people than the Democratic minority of forty-five. And things are only getting worse: by 2040, 70 percent of Americans will live in just fifteen states and be represented by only thirty senators. And thanks to Article V of the Constitution, the Senate’s malapportioned representation system cannot be changed. This is not a glitch but a feature: the Senate was built to obstruct majoritarian politics and preserve elite consensus.

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 in the Senate — make successful use of the process extremely difficult. Since the Senate is organized on the basis of equal state representation, that means just thirty-four senators from seventeen states — potentially representing less than 8 percent of the population — are enough to acquit. Trump was impeached in 2019 and 2021. In both cases, the number of senators who voted for impeachment (forty-eight for charges of abuse of power and forty-seven for obstruction of Congress in 2019, and fifty-seven for incitement of insurrection in 2021) represented more Americans than those who voted against impeachment. But thanks to the Constitution, it would have taken at least sixty-seven votes (two-thirds) to find Trump guilty.

After Joe Biden’s infamous 2024 presidential debate performance that ultimately led to his ouster from the Democratic ticket, Lazare wrote,

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.

In the face of Trump, pious invocations of the Constitution are manifestations of this denial — a refusal to recognize that there’s no legal path out of this crisis. Beating back Trump’s authoritarianism and the forces that have enabled it means appreciating that the United States, despite having regular elections and extending basic civil liberties to many citizens, has never been a democracy. The only way to firmly secure our rights is through establishing a political system governed by majority rule. We need a new political foundation: a democratic constitution built around a unicameral legislature elected through universal and equal suffrage, and a judiciary accountable to the people. Without such fundamental political changes, the system established by the Constitution’s framers will continue to subvert the popular will and enable oligarchic rule.