Shredding Constitutions

Dictators defend their rule with guns. Democrats defend their rule with paper.

Of course, the constitution that upholds democracy is not just any piece of paper. It is a document backed up by political institutions, by courts, and by the public will. In a normal situation, this paper is stronger than military force or police actions because the product of the pen is indeed mightier than the sword.

But we don’t live in normal times.

In Russia, the democratically elected leader forced through constitutional changes that effectively made him leader for life. In South Korea, the president declared martial law in order to suspend the constitution and allow rule by decree.

Vladimir Putin succeeded in Russia; Yoon Suk Yeol in Korea did not. The different results owe much to two factors: the ruthlessness of the leader and the strength of the political culture.

Donald Trump, in his two months in office, has treated the U.S. constitution like a roll of toilet paper. The foundational document of the United States has no power, in his estimation, except for what it can do for him.

The ruthlessness of Trump is without question. As a businessman, he consorted with organized crime, and it rubbed off on his personality if not his behavior. What remains unclear, however, is the strength of U.S. political culture and its capacity to resist a president’s whims and his assaults on the law.

Recently, Trump has talked about becoming a three-term president. The constitution is clear on this issue. According to the Twenty-Second Amendment, “No person shall be elected to the office of the President more than twice.”

Ah, but what about the supposed loophole involving the word “elected”? According to this much-discussed scenario, J.D. Vance would run for president in 2028, with Trump as vice-president. At some point, Vance would step down, and Trump would become president. In this case, Trump would acquire a third term without technically being elected to the office.

But the U.S. constitution is also clear about this. According to the Twelfth Amendment, “no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.” Ineligible for the office of president, Trump would be ineligible for vice president as well.

But Trump doesn’t care what’s in the U.S. constitution any more than he cares what trees make up his toilet paper.

In his first three months in office, Trump has instituted a number of unconstitutional policies. On day one, for instance, he issued an executive order barring birthright citizenship. That is, he overturned the principle that anyone born in the United States—to citizens and non-citizens alike—is entitled to U.S. citizenship. But here, too, the U.S. constitution is very clear. The Fourteenth amendment enshrines birthright citizenship in the constitution. In any case, presidents can’t change the rules governing citizenship.

The Trump administration is currently cutting funding for a wide variety of U.S. programs, from domestic education to foreign assistance. But, again according to the U.S. constitution, only Congress has the right to make decisions around budgeting. The legislature has the “power of the purse.” All of the cuts that the Trump administration is making are unconstitutional.

The Bill of Rights, the first ten amendments to the Constitution, guarantee the freedoms of speech, assembly, and the press. But the administration is now arresting and deporting people based on their record of protest, which is a constitutionally guaranteed right. A Tufts graduate student from Turkey was restrained and arrested by six immigration agents—an event documented in a viral video—without any stated evidence of misconduct. She’d published an essay in her college newspaper critical of U.S. policy toward Israel.

The administration is threatening retribution against universities—thereby restricting freedom of speech on campus—on the flimsy excuse that they are fomenting anti-Semitism and/or failing to protect Jews on campus. The administration has failed to note that many Jews are part of the pro-Palestinian actions at universities as part of Jewish Voice for Peace and other organizations.

The administration is threatening cuts to public radio and television—restricting freedom of the press—because it wants to eliminate a source of objective reporting on the illegal and unconstitutional practices of Trump and his team.

Trump has singled out transgender people for discrimination, for instance issuing an executive order banning trans service personnel from the military. A District Court judge blocked the order, pointing to the likely violation of the constitution’s Fifth Amendment language protecting equal rights.

Law firms have launched over 150 legal challenges to block Trump’s executive orders. So, the administration is also targeting law firms, threatening to sever any contracts between federal agencies or government contractors with top firms that have investigated the president in the past or brought suit against the administration in its second term. These executive orders in turn violate at least three articles in the Bill of Rights.

During the Obama years, Republican legislators took to carrying around pocket-sized copies of the U.S. constitution. It was supposed to be a rebuke to the supposedly unconstitutional acts of that president. At that time, Republicans complained that Barack Obama was issuing too many executive orders and accumulating too much power in his hands. They called Obama’s term in office an “imperial presidency.” They routinely held up their copies of the constitution to remind their audiences of what the Founders intended.

But now that Trump is blatantly violating the constitution, these Republicans either approve of his actions or are remaining silent. Where are their pocket constitutions? Perhaps they left their copies in their back pockets when they sent their pants to the cleaners. The pamphlets came back well-laundered and obviously illegible.

For an even longer period, some conservative judges have insisted on “original” interpretations of the constitution: making court judgements based on what the framers of the constitution intended with their words. In other words, the judges reject later interpretations that take into account the evolution of society.

And now some of these “originalists” are twisting themselves into knots to interpret the constitution not as George Washington or Thomas Jefferson did nearly 250 years ago but the way Donald Trump does today.

Trump and the party he has remade in his own image don’t care about constitutions. They don’t care about documents or ideas or debate. They care only about power. If the constitution is an obstacle in their path to power, they will tear it up and destroy democracy in the process.

Originally published in Hankyoreh.

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