Arguments

Our Constitution Wasn’t Built for Trump

It might finally be time to reconsider the adequacy of our eighteenth-century Constitution for our twentieth-century reality.

By Sanford Levinson

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Over the past decade especially, I have become an increasingly harsh critic of the United States Constitution. My 2006 book, Our Undemocratic Constitution, criticized it for its obvious deviations from any plausible twenty-first century theory of democracy. In 2012, Framed: America’s 51 Constitutions and the Crisis of Governance blamed a number of structural features of the Constitution, which in fact never become the topic of serious litigation, for the fact that most Americans, regardless of their political affiliations, had increasing mistrust and, indeed, near contempt for our country’s national political institutions. They seemed incapable of addressing some of our most basic problems. Donald Trump owes his election, at least in part, to this widespread and accurate perception of a crisis of governance. On September 1, my wife Cynthia Levinson and I will publish a book directed this time at teenagers called Fault Lines in the Constitution. It is an unfortunate truth that the Trump Administration highlights some of the most grievous of those flaws, beginning, obviously enough, with the Electoral College that inflicted his presidency upon us.

But another vital flaw is revealed to us when we ask ourselves whether it could constitute an impeachable offense—a “high crime and misdemeanor”—for a President to exhibit in his views and behavior the rejection of what we would like to think of as our basic commitments as a nation. For all of my past and recent criticisms, I never fail to find the Preamble inspiring as a record of those commitments. In fact, my wife and I use the Preamble as the basis for our ultimately “grading” the Constitution in terms of its actually allowing us to achieve those admirable aspirations.

The impeachment question raises what today may be the single most important structural feature of the Constitution: the fixed presidential term of four years, save for the possibility of impeachment or the invocation of the 25th Amendment. The latter allows a President’s cabinet, with the assent of Congress, to declare the incumbent incapable of performing the duties of the office. Neither is adequate to the occasion before us, however understandable it might be to suggest either that Trump has committed a “high crime or misdemeanor” or that he has exhibited sufficient symptoms of dementia or sociopathology to warrant displacement through the 25th Amendment.

In other words, the basic problem with the impeachment clause is that it simply does not work, with the exception, perhaps, of Richard Nixon. The Clinton impeachment, however, demonstrated the degree to which the clause has been captured by lawyers who simply shout at one another about what in fact constitutes such a “high crime or misdemeanor.” The correct answer is that nobody really knows. We do know, though, that most political liberals believed that lying to one’s Cabinet, the citizenry at large, and, indeed, a federal grand jury—this last a clearly illegal act—did not warrant removal.

The 25th Amendment, for its part, was drafted in order to save us from what would have been the most truly disastrous outcome on November 22, 1963: a stricken John F. Kennedy lingering for weeks, or perhaps longer, in a coma or otherwise clearly debilitated state rendering him incapable of actually functioning as President. This was, effectively, the reality for a year-and-a-half following Woodrow Wilson’s stroke in September, 1919. Until Warren Harding took office on March 4, 1921, we were in effect illegitimately governed by his wife Edith Galt Wilson and her enablers. One can also imagine the dire consequences of FDR’s suffering a non-fatal stroke in April 1945. The 25th Amendment, which has never in fact been invoked, might protect us from those kinds of disasters, but it would be a stretch to invoke it casually to rid of us of Donald Trump.

What the United States Constitution needs, and unfortunately does not have, is a provision that allows Congress, by a two-thirds vote, to register their “no-confidence” in an incumbent President that would serve to fire him immediately, without needing a crime or an incapacity as justification. It would be enough to say basically that Congress, no doubt representing their constituents, had become terrified of the lack of judgment displayed by the President. He or she would most likely be replaced by the Vice President. Even better would be the selection of the new President by the congressional caucus of the President’s own party, followed, perhaps, by a new presidential election the next time we elect members of the House and Senate. This would assure that an opposition party could take over the White House only by winning an election.

Secondly, it would almost certainly give us someone more prepared to exercise the responsibilities of the presidency, especially in such freighted circumstances, than a Vice President chosen by the disgraced President for, most likely, crass political reasons. There are exceptions, to be sure. Some vice presidents could easily assume the office. But few would suggest that is true—to speak only of nominees or incumbents over the past 25 years—of Dan Quayle, John Edwards, or, most certainly and spectacularly, Sarah Palin. Whatever one thinks of Dick Cheney politically, he had the resume of a potential President, as is equally true of Joe Biden. One might however have doubts about Mike Pence, whose major role seems to be acting as Donald Trump’s unthinkingly loyal poodle.

One would not have to go all the way to a parliamentary system to establish such a procedure allowing us to rid ourselves of a political and moral pestilence like Donald Trump. One might even hope that one consequence of the Trump presidency will be a long-overdue national discussion of the adequacy of our eighteenth-century Constitution for a decidedly different twentieth-century reality, where, to name the most obvious difference between now and then, presidents are deemed to have basically unilateral control over the deployment of vast military resources, including nuclear weapons. Until then, however, we are left with what we have: the flawed impeachment clause and the 25th Amendment.

Gerald Ford in 1971 (in)famously said that an impeachable offense is whatever a majority of the House of Representatives says it is. So why shouldn’t a majority of Republicans and Democrats alike declare Donald Trump to have so blasphemed the American civil religion as set out in the Preamble or the Gettysburg Address or Martin Luther King’s “I Have a Dream” speech that he deserves to be fired? And perhaps two-thirds of the Senate would agree. Unfortunately, we must recognize that this is a decidedly inadequate way to get rid of a President who might truly be a menace to everything this country stands for. The only thing we could say for sure is that it would take too much time and that it would be impossible to escape the din of lawyers shouting at one another—joined by millions of citizens—about the real meaning of the impeachment clause. As Trump himself might say, Sad.

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Sanford Levinson is a Professor of Law and Government at the University of Texas Law School and currently a Visiting Professor at Harvard Law School.

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