Hey, hey, ho, ho, the Constitution has got to go. If you didn’t hear that rallying cry at Brett Kavanaugh’s confirmation hearing, it may come in the aftermath.
Kavanaugh’s impeachment isn’t good enough, says liberal writer David Klion. The whole constitutional framework that will (probably) allow his confirmation ought to come down. Few have yet to make the argument so boldly, but there are signs it may soon catch on.
If the Constitution allows President Trump, who lost the popular vote and has relatively low approval ratings, to nominate Kavanaugh, who doesn’t poll as well as past nominees, and the Senate, for which there is no national vote and as many lawmakers from Wyoming as California, to confirm him, the whole damned undemocratic thing ought to be repealed and replaced.
“In the months and years to come, Democrats will have to adopt a forceful procedural radicalism that treats the Constitution as an obstacle to a political system that is genuinely accountable to the public,” Klion writes.
Such an argument is actually refreshing compared to the normal practice of wishing away the Constitution’s limits on federal power, pretending to revere it as a “living document.” The idea that the system designed by the Framers is in any way incompatible with the goals and desires of modern American liberalism is supposed to the conceit of right-wing cranks who prattle on about the “Constitution in Exile.”
If we were in fact talking about enumerated powers, of course, the point would be stronger. There are lots of things the Constitution does not authorize the federal government to do that are quite popular, some of which it is already doing. Confining Congress to its Article One, Section 8 powers would definitely not fly in a pure democracy circa 2018.
But that isn’t what we are talking about here. The plain fact is that everything liberalism has accomplished from the New Deal all the way up through Obamacare was done through this constitutional system, with an Electoral College, a Senate where large and small states are represented equally, an unelected Supreme Court, some measure of gerrymandering, and all the rest of it.
Some of those liberal successes were achieved through undemocratic means, like court rulings. Others, like threatened court-packing, violated institutional norms. But all the civil-rights laws, the creation of Medicare, the rest of the Great Society and the War on Poverty, the establishment of Social Security, the federal minimum wage, these things were enacted, however slowly and painfully at times, within existing constitutional mechanisms.
For all the talk of democracy and “increasingly unpopular” conservative “policy preferences,” the reality is that these things were once possible because there was a liberal consensus in American politics that no longer exists. Liberals commanded supermajority support in both houses of Congress as recently as President Barack Obama’s first two years in office, until they were promptly turned out by the voters.
What this is really about is wanting to be able to do the same types of things with only the support of a bare majority or small plurality of the electorate behind them. Liberal candidates simply don’t attract the same consistent electoral backing they once did — Obama’s best showing was 53 percent of the vote, Bill Clinton never cracked 50 percent, and Jimmy Carter barely exceeded that threshold all the way back in 1976.
Even the talking point about how the polls prove liberal policies are more popular than liberal candidates doesn’t stand up to basic scrutiny. If Kavanaugh should be rejected because a poll finds him with -1 support, should Robert Bork have been confirmed because he was at + 3? If Roe v. Wade cannot be overturned because polls say that would be unpopular, should it be re-crafted to no longer allow specific abortion policies other polls show to also be unpopular? If Obamacare cannot be repealed because polls show that is unpopular, what should have happened when the law itself was unpopular?
To ask these questions is to answer them. Even the specific outcomes Klion decries occurred because the rules of the Senate have been changed to operate the way he wants to run the country: a small majority gets to have its way with a large minority. Otherwise, Democrats would have been able to block Kavanaugh and all but the least controversial of Trump’s nominees.
Just as Harry Reid never anticipated weakening the filibuster would one day help Trump place two conservatives on the Supreme Court, the Electoral College’s detractors can’t imagine a future in which a Democrat won’t eke out a popular plurality by running up the score in California and New York.
Conservatives are frustrated in the same way: They can’t win big enough majorities to reform entitlements along the lines envisioned by Paul Ryan, repeal Obamacare, overhaul immigration laws, or do anything that can’t be jammed through via reconciliation.
Our politics have taken their current nasty form because both sides are convinced they are losing and only their opponents push the envelope to “advance their naked partisan interest” (which toward the end of Klion’s essay morphs from being a feature of the Constitution into an abuse of it).
The reality is that such a divided country needs more federalism and more fidelity to the real limits imposed by the Constitution — not less.
