The year 2018 may be one of the most important years in American history. What happens in 2018 may determine whether or not the United States remains a coherent country. But what will determine this? What might actually happen? And what are the constitutional issues — good and bad — that are contributing to the crisis that the USA seems to find itself in? Maria Armoudian talked with three experts on American history and law.
Louis Michael Seidman is a Professor of Constitutional Law at Georgetown University Law School. He is an expert in constitutional law and is the author of Silence and Freedom.
Sanford Levinson is a Professor of Political Science and Law at the University of Texas at Austin. He is an expert in constitutional law and is the author of Our Undemocratic Constitution: Where the Constitution Goes Wrong (And How We the People Can Correct It).
Jennifer Frost is a Professor of American History at the University of Auckland. She is an expert in American history and is the author of An Interracial Movement of the Poor: Community Organizing and the New Left in the 1960s.
This interview has been edited for clarity and length
Maria Armoudian: It seems like there is so much to cover with American politics right now, but I think the big questions that are on my mind and probably a lot of people’s minds deal with the rule of law, the corruption, the potential collusion, the potential obstruction of justice, and how far down this path the United States might be going which seems to be as a result of the sitting President and the Republican Congress. I thought perhaps we should start with Jennifer Frost with a historic context. Have we ever seen anything like this in American history?
Jennifer Frost: What I would like to argue is that Trump, his presidency, and our current political system is more a difference in degree than in kind. Historians are spending a lot of time looking back for historical analogies, comparisons, contrasts, and there have been a slew of articles looking at various different presidents, or even political figures like Huey Long, and seeing how Donald Trump [matches] up or [differs] from those historical figures. I think that is not that useful… There was a piece in the Washington Post in June of [2017] saying that historians should be commentators, not pundits, and that what we should be doing is trying to explain the context for where we are today – how did we get here, what were the causes, what are the consequences? I’ll leave it at that. I’m happy to explore some of these historical analogies, but the two things I would stress are [that] what is definitely unique is to have a president with no public service, no experience in politics, government, or the military, obviously quite ignorant of history and policy; and his attack on institutions, as well as talk about the facts and truth, are the things that I would say [are] unprecedented. All the other sorts of issues that we see – his xenophobia, his racism, his misogyny, his corruption, the violation or challenges to civil liberties – we’ve seen elements of that before in United States history.
MA: When you look at United States history would you say there is one particular period of time where you see something really similar that the United States came through in a more positive way potentially? I mean, people talk about Nixon, but you had a Democratic Congress at the time of Nixon and we now have a Republican-led Congress which seems to be trying to protect him despite what appears to be collusion with a foreign government, what appears to be obstruction of justice, and all the other things that you just named. Is there a comparison that we can look to?
JF: Again, historians have gone back – they’ve looked to the Civil War, they looked to the 1890s, they’ve looked through the Cold War era, obviously looking at Nixon – and, of course, the hopeful message there is [that] the country went through these incredible challenges, including breaking apart during the Civil War, and did come through. So I think the faith in the institutions, the faith in the government, the faith in the structures is definitely there; what is frightening is that what we’re going to see with Trump, and I believe obviously the United States is going to survive this, but we are going to have to have somebody restore the presidency, as they say, to make that office a place of respect and a place that is positive. But I have always been critical of the imperial presidency. Gary Wills recently called it the “sacred oval office”. I don’t think it’s a bad thing to challenge the idea that the president is this sort of divine, sacred office and so maybe that is something positive that can come out of that – that we rethink the relationship between the legislature and the presidency as well as the judiciary.
MA: I think both of our other guests, who are constitutional scholars, would agree with you on that; but before we go into the constitutional issues, and I know both of you have been very critical of the U.S. Constitution and its limitations. Sandy Levinson, you’ve written a bit also on some of the historic comparisons. You, in particular, looked at Hamilton and Burr, and you said “where is our Hamilton?” What did you mean by that?
Sanford Levinson: Without becoming overly romantic about Alexander Hamilton, I do think that the central point, both of the Ron Chernow biography and then the remarkable play by Lin-Manuel Miranda, is that he was a dedicated public servant and not personally corrupt. But to give him his due that is because he thought, perhaps plausibly, that one had to develop manufacturers and one had to develop a national debt in order to prosper. He was not on the take; he was a man of honour and this really comes through in the election of 1800 [where] he ends up supporting his bitter enemy, Thomas Jefferson, because he recognised that Jefferson, as mistaken as he was in fundamental ways, was also a patriot. Whereas he viewed Burr as a complete scoundrel who had no sense of public honour. I think that what is so striking in today’s Republican Party, is that there are few people within the organised Republican Party holding public office who are Hamiltonians in that way. There are certain pundits I have grown to admire almost beyond measure, people like Michael Gerson and Jennifer Rubin, whose politics I often don’t agree with, but I think within Congress they have turned into enablers and are devoid of the Hamiltonian sense of public spirit. If I can say one other thing, I don’t know if the series the Crown is being shown in New Zealand or is popular in New Zealand – but it’s certainly getting an audience [in the United States] – and one of the things that is striking, and I’m not a monarchist, is that the Queen was trained to be a dedicated public servant and to read the riot act to Winston Churchill when he was not behaving as a dedicated public servant. And that is the Washingtonian, we obviously broke with the monarchy, but the original sense of the system at its best is that it would have public-spirited figures and quite frankly we’re close to devoid of that today in the American political system.
MA: Michael Seidman, would you agree?
Louis Michael Seidman: I agree for the present. What I am not sure of is what is going to happen in the near-term future. I think that 2018 will go down in history, along with 1776, 1861, and 1968, as one of the most important years in American history, and by the end of this year we will have a better idea of whether we really have a country left – and I mean that in a very serious way. What is likely to happen is that the special counsel will either make findings that implicate Trump or be on the verge of making such findings and then, I think, it’s quite likely that the President will try to put an end to it. At that point it becomes really crucial whether we have any Hamiltonian Republicans and – if we don’t, and if he gets away with terminating the investigation – then I think it’s very hard to see the limits on what he or a Trumpian successor to him could not get away with and we would, as a country, be in very serious trouble. What is just imponderable at this point is how Republicans will react at that point, and especially what makes it very hard to make judgments about it is [that], if they are staring down the possibility of a catastrophic loss in the November elections, [and] if Trump’s mental deterioration continues, then I could imagine the Republicans acquiring a spine. If that doesn’t happen, and he gets away with it, then the United States is in very serious trouble.
MA: That leads us right into what I think is the crux of what I wanted to get into, which is what are the powers and structures and how have they been used in the past that can influence what happens in this very important year? The President and the Republican side of Congress obviously have a lot of power, the judiciary is getting packed quite quickly, and we’ve got on the other side a weak Democratic Party and an FBI special investigation. What does the Constitution say about this? What are the legal ramifications?
SL: I suspect that Mike and I would agree that the Constitution doesn’t say anything very clearly. Good lawyers can come up with arguments that the President’s pardon power is limitless, that not only could he pardon his son in law and his son, but that he could even pardon himself. Other lawyers would say, “No he can’t”. The point is that we have never had presidents in the past [who] have pushed their ostensible presidential powers to these limits. Richard Nixon, who was in many ways a thorough scoundrel, none the less behaved quite honourably once the tapes were made public and he was told by members of the Republican Party he had to go. He could have stretched it out much worse, [but] he didn’t. There was some speculation that he would pardon himself, he didn’t; Gerald Ford did pardon him and it stuck. But with Trump you have literally no idea which buttons he might push and which envelope he would try to take to the maximum, and there will always be lawyers who would be willing to defend presidential power to the Nth limit.
LMS: I would agree with all of that. I want to just add a couple of other points. If you ask the question what actually holds the country together and what is necessary for us to have a country, I actually don’t think it is the Constitution itself… Trump has done little or nothing yet that actually clearly and unambiguously violates the Constitution. What holds the country together are a set of customs and norms that don’t have the full status of constitutional law, but are sub-constitutional. These are norms of deference and reciprocity and respect and those have been eroding in the United States for some time, but the Trump administration has really accelerated that process, and those sorts of erosions, I think, are what we really do have to worry about. And then a second kind of related point is, I myself think, to answer your original question, if you ask where [we should] look to reverse this and protect ourselves from Trumpism, I think it’s a mistake to think that the Constitution standing alone is going to do it or that we can rely on the Supreme Court to do it. In the end what is required is political organisation and a mobilised American citizenry that will stand up to Trump and that will defeat him. I think there is some progress in that direction, the progress is impeded to some extent by constitutional obstacles, by the way in which the franchise is organised in the United States, but… if people take this seriously enough and fight hard enough Trump will be defeated. If they don’t, he won’t be.
MA: That is a perfect segue for Jennifer Frost.
JF: I couldn’t agree with you more. Of course, we think about the elections in Virginia and Alabama where we did see a Democratic turnout, we also saw Republicans who decided they couldn’t go there in voting for Roy Moore. So I agree with you. I think one of the lessons that has been learned by the left, I’m hoping still in the last few years, is that the left can’t just protest; they have to get the voters out, have to work with the mainstream Democratic Party and get the vote out. You said a weak Democratic Party, but I don’t necessarily agree with that. I agree with you that what we need to look to is the voters, is the American people.
SL: In Mike and myself you have a hefty representation of the constitutional law professoriate that openly indicates dislike of the U.S. Constitution, though we dislike it in somewhat different ways for somewhat different reasons. But one of the things that most disturbs me about the U.S. Constitution – and the reason I disagree with the New York Times editorial… that actually says much the same that Jenifer and Mike just did… is that [it] admits that we’re stuck with this incompetent, possibly demented, possibly sociopathic president until 2020 because, even if there is a wave election in November, he will still be president with all of the formal powers the president has. I think one of the greatest defects of what I considered to be a very bad constitution, especially for our times, is that – unlike New Zealand, unlike many countries around the world – we can’t fire a president. Impeachment and the Twenty-fifth Amendment really don’t work. If we were in New Zealand, if we were in the UK, if we were in many countries around the world, we would be talking about no confidence and Republicans going back home would have to explain to their constituents why they’re not voting to fire Donald Trump. If we were like Wisconsin and California, within the United States, we could have a recall election and we would be standing at street corners even as we speak to generate a recall election as soon as possible to get rid of Trump. But the Constitution forecloses those possibilities and that is really terrible.
LMS: Of course, Sandy’s right about that, or at least I think he is right when he says this segment of the [constitutional] law professoriate is heavily represented. What he neglected to say is that the two of us may be the only members of that. But it’s also true that we are where we are and I am less pessimistic than Sandy is about the possibility of impeaching the President. Again, if you look at where things are now it’s not a realistic possibility, but I just don’t think we can tell where we will be in 2019. If the Republicans just have a massive wipe-out in the polls, if Trump keeps talking about his button being bigger than [North Korean Supreme Leader Kim Jong-un’s] button, if Mueller finds really serious offences, [then] there are a lot of things that seem impossible now that might be quite possible soon.
MA: Can I also ask about some of these structural things. Like we were saying earlier, people do throw about how the Constitution doesn’t allow this and it is a basic structure for governance in the United States. We know this, and some of the discussion has been around the Twenty-fifth Amendment, but there is also the Mueller investigation and there is some talk that he has been playing a role in convening a grand jury. What about these things? What if a grand jury came into play? Does that even matter in the general governance?
SL: Let’s talk about two other presidents. One we’ve already talked about: Richard Nixon, who was brought down by the so-called “smoking gun” of the taped evidence that he was engaged in a cover-up. He would not have been impeached, frankly, if the only evidence were his manifest dishonesty with regards to the conduct of the war in Vietnam and Cambodia. But one of the catchphrases Nixon contributed to the way Americans talk is the need for a smoking gun, and so far… we haven’t come close to a smoking gun. Maybe about the remarkably inept Donald Jr., but with regard to [President Trump] we don’t seem to have anything. Then we do a fast forward to Bill Clinton, around whom liberal Democrats rallied and supported his non-impeachment even though he clearly committed perjury before a federal grand jury. And it does seem to me in retrospect that the country would have been better off at the very least if he had the honour to resign, but Bill Clinton was not imbued with a great sense of Hamiltonian honour – or if Democrats had pulled the rug from under him and impeached him. So we live with the fact that Democrats put on their technical lawyer tack in 1998, came up with very strict definitions of what counted as a high crime or misdemeanour, and I assure you all of the Trumpistas will quote a lot of Democrats against ourselves if we say, “Well, the stuff you have on Trump is close enough to a smoking gun or is close enough to a high crime misdemeanour”, and I think that is a serious problem. But Mike is quite right that if the Republicans really do get decimated and they think it’s [in] their political interest to get rid of Trump, then maybe they’re not going to be fastidious about these niceties. But remember, to convict him you need two-thirds of the Senate and, with Bill Clinton, the Republicans didn’t come close to getting two-thirds of the Senate to convict a perjurer of an impeachable offence.
LMS: I’m frankly not predicting with any assurance impeachment, but let me just say a couple of things about the good points that Sandy made. First of all, for reasons we’ve already talked about, I don’t think that either Nixon or Clinton [are] remotely comparable to Trump; as unfortunate as some of what they did was, they did not directly attack the Government’s norms in the way that Trump has, as they weren’t as crazy. Secondly, with regard to the Mueller investigation, we don’t know what he has and we don’t know whether it’s a smoking gun. The one thing we do know is that he gave [former National Security Advisor] Michael Flynn an extraordinary plea deal and prosecutors don’t just give those out, they give them if they’re getting something in return [like] something to go after somebody higher up that is important and really helpful. There are not many people higher than Michael Flynn, and I think… [and] this is pure speculation, but I would not be surprised if Flynn is prepared to testify that Trump told him to lie to the FBI, for example. Now, is that a smoking gun? This is, in the end, mostly a political process and whether it is or not depends on how the country reacts and on whether the Republicans really think that they’re facing a cliff that they’re being asked to jump off of.
MA: Jennifer Frost?
JF: That is my big concern. Of course, as a historian I don’t like looking to the future, I feel much more comfortable on strong ground looking at the past. My big concern about the impeachment or the Twenty-fifth Amendment… is that we do have a third of the country who we know support him and they don’t believe in what we would see as the truth or facts. I don’t care what smoking gun we think we find, they’re not going to buy it. They see the system as rigged, their hero will have been brought down by Democrats and Republicans who aren’t pro-Trump, and I’m very concerned about that. I really believe that the way to go is mobilisation, politically electing a Democratic Congress, a lot of those executive orders that he’s putting through, we could have congressional legislation that could deal with some of those. In some ways he is operating just like Obama did: Obama used executive orders because Congress wasn’t moving on things. This is, I think, a good historical analogy … if FDR, elected in 1932, gets a much more liberal [or] radical Congress, or even had some socialists in Congress by 1934, and, as he always said, “Make me do it – make me put social security in place, make me put these policies in place.” So I do think, especially if what [House Speaker Paul]Ryan is hinting at – Paul Ryan’s hinting that next year we’re going to see some move toward big cuts to social security, Medicare, Medicaid – it’s possible that all those Trump voters who voted for Obama could come back, but then the Democratic Party has to give them something to come back to.
MA: Anybody want to respond to that?
SL: I agree with all of that, but I think one of the terrible things about the American constitutional system – and one of the reasons that I increasingly envy New Zealand and Canada and the [United Kingdom], and most parliamentary countries – is that it’s an awful truth that opposition parties have no incentive, in fact they have a disincentive, to cooperate significantly with presidents of the opposite party. Mitch McConnell behaved completely rationally when he said, notoriously, “My aim is to limit Barack Obama to being a one-term president, and the best way to do that is to try to prevent him from having any accomplishments whatsoever.” He failed in that, but I don’t think he was irrational. What we will never know is what would have happened had Donald Trump been a far more rational president than a lot of political scientists were predicting a year ago, [when they believed] the first thing he would do [was] introduce a trillion-dollar infrastructure bill that would try to repair really disgraceful aspects of the American interstate highway and bridge and tunnel system. It would have created thousands upon thousands of jobs for his base, and for the Democratic base, and if that happened then Donald Trump’s popularity would now be at sixty percent. For very odd reasons, that I frankly cannot explain, he chose to govern as an ultra-right-winger. But what if, in fact, there is a wave election and then he talks to his good friends Nancy and Chuck and says, “Okay, let’s cooperate together in rebuilding American bridges, will you support my program?” What incentives do the Democrats have at that point, a year before the presidential election, to make Trump look good? And that is one of the consequences of our separation of powers, or separation of parties, system.
MA: Sandy, you bring up the idea that the structure is giving us rational behaviour for the most part, and is that what you think explains the lack of a Hamilton? In other words, a lack of a sort of moral ethical behaviour on the part of the Republicans because it sounds like they’re trying to destroy the Mueller investigation?
SL: Sure. But… I was one of those people who certainly was delighted to go after Ken Starr and [cheer] when Clinton was acquitted by the Senate. So if you want to adopt an historians temperament you can say this is the playbook for those of us who are appalled beyond belief by Trump, we are appalled at the enablement by the organised Republican Party of the attack on Robert Mueller. But I’m not willing to tell your listeners that I wouldn’t be looking for whatever dirt I could find about Mueller or some of the people he hired, and I wouldn’t be tempted to say, “Well, this is the FBI, this is the deep state trying to go after a threat.”
MA: If you saw what was at stake – which is this extreme polarisation, this sort of destroying of truth itself, this sort of destruction of rule of law, and all the basic fundamental things that Michael Seidman was talking about earlier that make a country function, that make the possibility of this idea which is a country as an idea to continue – then I wonder if maybe you might step back and go, “Well, there is something bigger at stake.” Michael Seidman, what do you think?
LMS: Well, there is another structural problem here – and what I’m about to say is not at all original with me, but I think it is true because of the way congressional districts have been gerrymandered and because of the way the Senate operates. Republicans have this problem that if they don’t appeal to their base, that is to say to the Trump voters, they will lose their seats through primaries. Even though a majority of the country might be opposed to Trump, they can’t even get to the election if they lose in the preliminary stage. [And in the primaries] the voters are disproportionately pro-Trump. So that systematically produces distortions that, if you’re a rational politician, prevents you from doing things that, in your heart of hearts, you might think are the right things to do. And I guess this is a theme that all three of us have been emphasising. What has to happen, then, is these people have to be defeated in the general elections after they are nominated. I was going to make one other point just about Mueller, and that is there has been a lot of attention paid to whether the President is guilty of obstruction of justice, whether he is guilty of some form of conspiracy and that gets into a lot of legalistic discussion about what the elements of obstruction of justice are, and so on. I think almost all of that discussion is really beside the point, and the reason it’s beside the point is because, at least while he is president, the fact of the matter is [that] Donald Trump is not going to be indicted. There is [the] Office of Legal Counsel, the Justice Department, opinion that says it’s unconstitutional to indict him and therefore probably beyond Mueller’s authority. No special prosecutor in the past has thought it appropriate to indict a president, it’s not going to happen. So what is relevant is not whether the legal requirements of obstructions are made out, what is relevant is whether as a political matter the country looks at what Mueller finds and decides that that is just unacceptable for a president. And that is not a legal question, that is mostly a question of politics.
JF: Politics, education, the media, I mean that is where we have to focus. One of the things I’ve been interested in as a historian is that Donald Trump’s slogan – Make America Great Again – is something that I could imagine running for Congress saying, “Okay, [Mr] President, when was America great? And what made America great then?” He made a historical argument in his run for the presidency and we haven’t seen what that is supposed to mean. Of course, I know he has no policy commitments, he has no real ideological or moral centre, so he just goes with the winds and whatever is going to make him popular. But I do think that [we will have something to run on in 2018, to challenge] him and those around him at some point… and we just have to be sure we have something to offer.
MA: Sandy Levinson?
SL: A couple of things. First of all, as Mike knows, I agree with every single word he says about the Senate, though I’d be far more intemperate. I think the Senate is a terrible institution which tremendously overrates the power of white small states. What one discovers is that Donald Trump did much better in those states or those areas that were largely white… Half the American population live in nine states, and they get eighteen [out of one hundred] votes in the Senate. Less than half of the American population live in the remaining forty-one states, and they get eighty-two votes. You can understand a lot, including the tax bill that just passed which was designed to punish so-called “blue states” much more so than the bill in the House. As bad as the House is, they would not have been so vindictive against California and New York as the Senate turned out to be. When was America great? A significant number of people in the United States right now would say America was great when Congress passed the Chinese Exclusion Act in 1890 and when it passed the 1924 Immigration Restriction Act. Another part of the population would say that America was great in the 1960s when we got rid of the Immigration Restriction Act of 1924, and even [when], during the Reagan… American borders became [fully] open for the first time… to people from Latin America and Asia and there was an amnesty for undocumented aliens. We are completely split right now between those two visions of what a great America would look like. Donald Trump is a white nationalist, he would no doubt support the Chinese Exclusion Act and no doubt believes the 1924 Act was just terrific, and we’re fighting this battle… When I become most apocalyptic is when I think one should take seriously the prospect that the United States quite literally won’t survive, in that we will see a serious secessionist movement led by California or what I sometimes call Pacifica, because the obvious question is what is it exactly that is binding the country together these days? I am not at all sure what it is.
MA: I’m sure you are aware that there is a movement for an Article Five convention and that they have gathered quite a bit of steam, but this is fuelled by the Koch brothers and the very machine that helped put Donald Trump in office. Do you think, and I ask this of media scholars, of which I am, have we been too critical of the media that has now brought about this anti-media thing? Do you think that we’ve been so critical of the U.S. Constitution that now it’s become a tool of the radical right?
SL: My view is that the American left is brain dead with regard to thinking about the United States Constitution. The reflexive response of the left is to say, quite literally, that we can’t even think of an Article Five constitutional convention, rather than to say that one of the few good features of the 1787 Constitution was that it provided for its own amendment and here are a bunch of good ideas as to how a radically defective United States Constitution might be made really workable for the 21st century. So let’s take on the Koch brothers, instead of saying that, “Oh, to support a constant to convention means that you are a useful idiot for the right wing and therefore what we should do is simply denounce the idea.”
MA: Michael Seidman?
LMS: An Article Five constitutional convention would make great television and you know TV would be at the bottom of the barrel looking for people to comment on it, so I guess I’d get on TV commenting on it. I would be in favour of a constitutional convention that amended Article Five. That is to say the first order of business ought to be, in my judgment, to make the process of amending the Constitution much easier than it is now. In the absence of an amendment to Article Five I am as much against our generation attempting to bind people who [will be] alive a hundred years from now as I am of the founders binding us now. [The United States] doesn’t belong to dead people, it belongs to living people, and we ought not to be in the business of deciding what kind of country people who aren’t alive yet ought to have, we ought to be taking care of our country. I agree with Sandy that many features of the Constitution are really awful, I don’t think it’s a bad thing to have a kind of national conversation about what kind of government we ought to have, although in the current atmosphere I do worry about things coming apart at the seams. But, at least in principle, that would be a good thing. But I don’t think it’s a good idea for us to try to bind the future any more than it was a good thing for them to try to bind us.
MA: Jennifer Frost?
JF: I keep playing the role of the naysayer here. I am worried about impeachment, I’m also worried about a constitutional convention, everything that Maria said about the Koch brothers. But we [have] got to remember [that] the constitutional convention would have representatives from the states which are majority controlled by Republicans. You just laid out those great statistics about [how] only nine states have half the population or more. [In that case] half the population… won’t get represented in a constitutional convention properly. So I’m scared to turn it over.
SL: What you’re doing is accepting the view of the radical right that states would be in control. And this is one of the reasons I really do think that the left has been brain dead, because if we were taking part in a genuine conversation we would point out that to put such a convention in the hands of the states would simply be illegitimate. No sane person would accept the premise that Wyoming and California should have the same power in a new national convention, nor would any sane person accept the premise that state legislatures should be in charge of picking delegates so that we could be having a truly informed and acrimonious discussion about what a new convention might look like. And one of the worst things about Article Five is that it doesn’t provide us a clue as to what an Article Five convention might really look like, including selection of the delegates. But it does seem to be that we’re not talking about that feature. All we’re doing is assuming that it’s really a terrible idea and that right-wing state legislatures would be in charge. If right-wing state legislatures were in charge then one of the things you could take comfort in is that they couldn’t impose a new constitution on the United States. What they could do [is] fulminate, they could make proposals, but there is still the ratification rules and, for better or for worse, it’s extraordinarily difficult to actually ratify new amendments.
LMS: Except that they could change the ratification rules.
SL: Except it would be illegitimate and it would provoke a civil war. [The United States] is simply not prepared to let the Koch brothers take over.
MA: I don’t know that we have enough evidence to say that?
JF: I totally agree with you, and this conversation about [the United States] flawed system, and I have to say I was one of those young people who grew up believing that the American system was the best system and now I’m a New Zealand citizen, I’ve lived here for fifteen years and I now think the parliamentary system is much better. But you just said no sane person would let this happen, [but] we have no sane person in the oval office right now.
SL: Look on the bright side, only thirty-six percent of the American public supports Donald Trump. The Republican Party right now is running twelve to fifteen points behind Democrats. There are a lot of terrible things going on in American politics right now, but one of them is not the capture of the American public by Paul Ryan, Ayn Rand, and the Koch brothers. They were incredibly successful in manipulating a defective American electoral college and a defective campaign by Hillary Clinton in riding to a victory that almost nobody expected. But we really ought not to believe that, if you go out today and ask a randomly chosen American, “What do you think of Donald Trump and the Congressional Republicans”, they are going to say, “Oh they’re terrific”. That’s just not what the polling data and what recent elections are showing.
LMS: I think… we may have gotten a little off track here. It may be that at some point in the reasonably near-term future a constitutional convention would be a good idea. I’m at best agnostic about it, but that is not the immediate problem on the table. The immediate problem on the table is that things are not now normal. We have a very dangerous, I would say deranged, person in charge of the country and so the first thing we need to think about is dealing with that. Then if we can get back to something more like normal politics, at that point we can start talking about something big like a constitutional convention. But even if it’s a good idea under normal circumstances, I’m not sure it’s a good idea right now, if for no other reason than it distracts attention from what, to me, is immediately at hand.
SL: I think one of the regrettable truths about significant constitution reform – whether it’s the United States or countries around the world, and there are exceptions – but by and large serious constitutional reform happens under extreme conditions. We killed seven hundred and fifty thousand Americans between 1861 and 1865 and just barely got the so-called “reconstruction amendments”.
LMS: But Sandy, all of that happened after the crisis was over. They didn’t try to write the Japanese Constitution while a war was going on, and at least the Fourteen and Fifteenth Amendments were passed after the Civil War was over.
SL: No, in all seriousness, one of the questions that ought to be explored is when the Civil War was over; because one of the most truly informative books I’ve read in the last several years is by a young historian who, I think, convincingly shows that the war didn’t end until 1871, and that you cannot understand the reconstruction of Congress and the reconstruction amendments without understanding that the war was continuing.
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