Impeachment and Constitutional Rot
These days we careen from one constitutional crisis to the next, worrying about the failure of our political institutions. And yet, for all our troubles, the first round of the House’s impeachment hearings was a marvel of institutional success. The House Intelligence Committee, under the leadership of Representative Adam Schiff, held hearings to gather information about President Trump’s apparent efforts to use the power of the state to manufacture dirt on a political opponent in the upcoming presidential election. While the White House refused to cooperate and even forbade several current and former executive-branch officials from testifying, a number of honorable public servants came forward and told the truth. The evidence presented was overwhelming.
Yes, there’s surely much more information to be gathered. None of it is likely to move Republicans—either the senators expected to sit through an impeachment trial or members of the party more generally. They simply do not care.
And here’s our real constitutional crisis. Rather than a sharp conflict that cannot be solved by our political institutions, we suffer from constitutional rot (a term used by the Wesleyan University political scientist John Finn and Yale law professor Jack Balkin to underscore the erosion of the civic prerequisites of constitutional health). Republicans have become indifferent to upholding the Constitution. And much of the wider public is apathetic to constitutional issues that do not speak to their immediate self-interest. This suggests a constitutional failure not in legal terms but in civic terms—a failure not primarily of political institutions but of civic attitudes. Most Republicans are indifferent to constitutional wrongdoing by a Republican.
But it’s hardly just Republicans. Independents are ambivalent about impeachment. They are rightly concerned about health care, immigration, and the economy. But they mistakenly seem to think that the issues underlying impeachment do not warrant their attention or are not particularly pressing.
The American constitutional scheme does not depend on virtuous citizens whose primary day-to-day obligations are political. Indeed, such a view was explicitly rejected by the Framers of the U.S. Constitution. They instead embraced a republicanism in which the people are one step removed from most political decision-making, the better that citizens can focus on private life instead of public affairs. Still, the Constitution does ultimately depend on a citizenry with at least broad constitutional competency.
So: Do our citizens know the Constitution in any meaningful sense?
Americans may venerate the Constitution, but they do not know it. In a recent Annenberg survey, only 39 percent of respondents (weighted demographically) could name all three branches of government. A previous version of the survey, from 2017, had an even worse figure for that question—just 26 percent of respondents could name all three branches. And that year, more than a third of the respondents couldn’t name a single right protected in the First Amendment.
Given the dismal state of our constitutional literacy, perhaps it should not surprise us that half of Americans are indifferent to President Trump’s abuse of power. But consider the stakes: Using the power of the state to enlist a foreign government in our elections to spread dirt on a political opponent is not simply a violation of the laws, it undermines our free and fair elections—the very heart of our representative democracy. It replaces the idea of a national interest pursued as a public trust with the self-interest of the officeholder. And it treats the legitimate constitutional opposition not as a rival political party but as an enemy, allowing the tools of the state to be used against loyal political opponents.
To be fair, Americans seem, by a large majority, to judge these actions as wrong, according to a mid-November survey. But they do not connect them with the health of our Constitution.
Part of the problem arises from the fact that we do not cultivate even the minimal virtues required to foster constitutional engagement. Civic education tends to be happenstance in our public schools. And in the halls of our colleges and universities, while we pay lip service to preparing students for leadership and meaningful citizenship, we do little in the way of teaching constitutional basics.
Our general failing at civic education is especially odd because, in one specific circumstance, we do emphasize the importance of fostering citizenship: We require naturalized citizens to learn about and understand the Constitution. As part of their naturalization process, aspiring citizens take a test that asks such questions as these about the Constitution and American political history: What does the Constitution do? What are the first three words of the Constitution? What stops one branch of government from becoming too powerful? Who makes federal laws? If the president can no longer serve, who becomes president? (Try your hand at this: You can find samples of the civics portion of the naturalization test here.)
Outside of the classroom, while there are a few bright spots—like the National Constitution Center, a Philadelphia museum with an array of civic-education projects—other institutions that once played a vital part in civic education no longer do. In particular, our political parties and other civic associations have been falling down on the job. It could be argued that Democrats are attempting to educate the public about the Constitution via the impeachment hearings, but it’s difficult to make up for years of neglect with a flurry of activity. A day-long, televised seminar from constitutional scholars hosted by the House Judiciary Committee, while welcome, is unlikely to do the trick.
As for the parties more generally, the Democratic presidential campaign has been a case study in constitutional carelessness. How many times have we heard the Democratic candidates strike a decisive pose, insisting they will give Congress a chance to legislate but will act by executive order on gun violence or health care? “On my very first day as president,” Elizabeth Warren promises, “I will sign an executive order banning new fossil fuel leases and drilling offshore.” Not to be outdone, Tom Steyer promises that on his first day in office, he “will declare the climate crisis a national emergency and use the emergency powers of the presidency to implement a plan to build a safer, more sustainable world, with or without Congress.” Very little attention is devoted to whether the Constitution actually empowers the president to take such actions. Even less attention is devoted to explaining just why it might be a constitutional virtue to have to work through the legislature and achieve some political consensus.
Republicans, meanwhile, have altogether distanced themselves from a principled commitment to the Constitution—outsourcing it as a thing defended by judges, but of little concern to the executive or legislative branches, let alone the citizenry. Critics of President Trump have urged Republicans to consider the precedent they’ll set if they fail to impeach and remove him from office. The argument goes like this: Imagine if Elizabeth Warren were elected president in 2020 or 2024. Would it be okay if she were to enlist Russia to manufacture evidence of wrongdoing by Senator Tom Cotton? What if President Joe Biden were to make aid to Israel contingent on its prime minister denouncing the purported antisemitism of Senator Ted Cruz?
Such principle-minded appeals to future self-interest miss the point. If Republicans controlled the House of Representatives under such circumstances, they would almost certainly begin impeachment proceedings against a President Warren or President Biden. If Republicans controlled the Senate by a sufficient margin, they would almost certainly vote to remove a Democratic president who did half as much as Trump has done. A refusal to impeach or remove a president of their own party now will not stand in the way of Republicans seeking to impeach or remove Democratic presidents in the future.
Speaking of hypocrisy regarding governing norms, does anyone doubt that if Justice Ruth Bader Ginsburg were to pass away in February 2020, much as Justice Antonin Scalia passed away in February 2016, that Senator Mitch McConnell would promptly hold hearings on President Trump’s Supreme Court nominee? McConnell would not blink an eye, no matter the inconsistency with what he said in 2016 about President Barack Obama’s nomination of Merrick Garland and the importance of not appointing Supreme Court justices during an election year. And does anyone doubt Republicans would go along? The Garland precedent would simply be ignored.
To be sure, Democrats also display tribalism. Yet it would be difficult to accuse the Democratic party in general, or its leadership in particular, of the degree of hypocrisy that characterizes today’s Republicans. Consider Speaker Nancy Pelosi and Representative Schiff. They were long skeptical of impeachment and held the tribal elements of their party at bay until the Ukraine scandal broke. Now they are proceeding responsibly toward impeachment—and doing so out of principle, since the politics could easily play out to the detriment of their party.
We’ve experienced constitutional rot before, with much of the populace indifferent to constitutional principle. The most obvious example is the retreat from the Civil War Amendments in the latter half of the nineteenth century. Formally, the Constitution commanded racial equality, equal liberty, and the right to vote by way of the Thirteenth, Fourteenth, and Fifteenth Amendments. But instead working to ensure a postbellum “new birth of freedom,” white citizens, exhausted by the continued effort to ensure the promise of freedom and equality to African Americans against Southern recalcitrance, became largely apathetic to constitutional justice.
Witnessing the defeat of the manifest purpose of the Civil War amendments due to the indifference of the public mind, Frederick Douglass would write: “The future historian will turn to the year 1883 to find the most flagrant example of this national deterioration.”
Maybe our own era’s national deterioration won’t last for long. Maybe the indifference among large segments of the population to Trump’s abuse of power will prove to be a singular, aberrant instance of constitutional neglect rather than a harbinger of what’s to come. Maybe Trump’s behavior won’t become the new normal. Maybe a Democrat will win in 2020, or even a different Republican. Or maybe Trump will win re-election in 2020 but our political conflicts will become more ordinary after 2024.
Maybe. But we cannot assume that our system can survive every shock and perturbation, every instance of hypocrisy, every stretching of norms. The viability of the U.S. Constitution depends necessarily upon teachers of American constitutionalism, and upon leaders who will stand by—and citizens who will care about—constitutional principle. If those conditions don’t improve, we can expect the constitutional rot to continue.