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  • The coming constitutional excitements in the United States 31st December 2023
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The coming constitutional excitements in the United States

2024 will be a test for the very notion of legitimacy at the basis of the United States constitution
*

The last post over at my Substack was fairly UK-centric – indeed Anglocentric – in its approach to the issue of constitutional crises.

That post averred that we do not often have constitutional crises in the United Kingdom though we (too) frequently have constitutional dramas and excitements. But it also warned that we are never far from a constitutional crisis, and that only self-restraint and deference to checks and balances have stopped constitutional tensions converting into contradictions.

Glancing at the United States, however, the situation appears to be far more serious. Over the Atlantic there seems to be a fundamental threat to constitutionalism, the effects of which may become very obvious in the coming year.

*

A few years ago, a complacent liberal might have assured you that in a democracy the perils of illiberalism could be dealt with in two simple ways.

*

First: politically one could defeat illiberals by winning struggles within political parties and by winning elections between political parties.

Like the proverbial poor, illiberals are always with us, but they could be kept away from power by gatekeepers and electoral prowess.

But what happens when the gatekeepers fall away and then the legitimacy of elections is itself contested? When the electoral wells are poisoned?

This is the immense problem created by the Trumpite lie about the “stolen election”. What good is defeating illiberals in a general elections – and being seen to defeat illiberals by sizeable votes – if the legitimacy of those elections is denied?

The old certainty that the best way to defeat illiberals is by defeating them at the ballot box is no longer sound if the ballot box is not respected.

*

Second: even if the illiberals gained executive or legislative power, the individual would still have the protections of their civil liberties as guaranteed by an independent judiciary. In this way the minority would be protected against any apparent majoritarianism.

But what if the very notions of civil liberties and of an independent judiciary are also trashed? What if the systems of rights and of their enforcement are, like elections, robbed of their legitimacy?

Here the illiberals are fighting the second front of their overall campaign. Just as electoral verdicts against them are dismissed, so are judicial verdicts. Their objective is to have no constraints on what they can when they have power, to have nobody who can say “no”.

*

Of course, the illiberals have not so far won either of these battles. Trump and his supporters are still out of presidential power, whatever they say about elections results. Illiberals have also not discredited the systems of rights and their enforcement (and indeed they have mixed feelings, given they often wish to rely on their “right to bear arms” – as they interpret it).

But these parameters of constitutional action are being continuously contested, even if they are not yet destructed.

If the results of elections are not accepted, and if the rulings of the courts are respected, then the conventional political and judicial checks on illiberalism may be insufficient.

And if so, what happens?

Nobody knows – and even best guesses may not be accurate. Like Withnail and Marwood, we could be drifting into the arena of the unwell, making enemies of our future.

*

This post was prompted by the discussions about whether Trump should be disallowed on various ballots by reason of his participation as an “insurrectionist”.

Such an huge intervention would have implications.

The normal inclination would be to oppose such a restriction on political choice: that the way to defeat Trump is at the ballot box and, if then appropriate, in the courts that apply electoral law.

But, comes the response, what if Trump and his supporters flatly reject the legitimacy of the ballot box and the courts applying election law? What if that standard liberal constitutionalist stance is no longer valid?

It is a difficult if not impossible question to answer, at least by the application of usual liberal principles.

And so the new year is going to be interesting.

2024 has the potential to be a very exciting year constitutionally.

And as we know, constitutional law should not be exciting, it should be dull.

Brace.

*

Best wishes for the new year, and thank you for your support and following.

Posted on 31st December 2023Author David Allen GreenCategories Constitutional Law, Constitutionalism, Courts and Politics, Democracy, Elections and Voting, Human Rights and Civil Liberties, United States Law and Policy

18 thoughts on “The coming constitutional excitements in the United States”

  1. Steven Buss says:
    31st December 2023 at 10:48

    The US election will be a pivotal moment. As the Republicans look to curry favour with Trump, US support for Ukraine will falter. Putin, I would suggest knows this and is looking to take full advantage.

    EU in fighting and NATO failures will create a vacuum In which Russia will flow into.

    Add in Gaza, and Israel’s desire to bomb the Palestinians back to the stone age with rising tensions in the West Bank.
    With Hezbollah and Iran, being dragged into a wider middle east conflict,

    I see 2024 as a year of massive destabilization of world and a more dangerous world for us all.

    Reply
    1. Christopher+Nimmo says:
      31st December 2023 at 14:25

      Very good observation and on the money in my view.

      Reply
  2. Frank Lamosa says:
    31st December 2023 at 11:45

    I have been thinking about this question ever since the Colorado Supreme Court rendered its judgement.

    While it troubles me, because political choices should be at the ballot box, I also recognise that the enemy of liberalism is illiberalism (actually, the thoughts originated in a different debate – how much tolerance should an open, tolerant society bear – after all the opponents of tolerance would not countenance that tolerance should be permitted).

    In other words, in a liberal society – we should be ready to face the need to accept a range of views, including ones we abhor. However, illiberalism will not admit to the possibility of liberalism – aiming to expunge it – so that is the one thing that a liberal society needs to banish. The illiberal movement plays by the rules of ‘heads, I win, tails, you lose’).

    From another point of view, a number of possiblities are acceptable, as long as you agree to (and play by) the rules of the game. If you stop playing by the rules of the game, then the game breaks down.

    Those involved in the insurrection have basically decided that they will not play by the rules of the game – hence they cannot be allowed to play (or we have to change to a new game – which is what we are now facing). Now, in the short term, those who want to change game may feel this is a decision that they are happy with – the problem is that when the environment changes, they are putting themselves at risk because the protections built into the current game will no longer apply.

    Reply
  3. Graeme Land says:
    31st December 2023 at 11:55

    How is Trump a free man? He has been found to have engaged in insurrection by a judge in Colorado, who, while finding thus also saw fit to allow his name to go forward in a primary ballot. (Because legally he wasn’t an officer of the United States – merely the President of those States!)

    Surely if he is guilty of insurrection he should be in jail pending an undoubted appeal, (by both sides.) Trump’s against the verdict that he engaged in insurrection and his opponents against the decision to allow his name on the primary ballot paper.

    So why isn’t he in jail?

    Reply
    1. Christian Thiemann says:
      31st December 2023 at 20:30

      Trump was not convicted in a criminal trial. The Colorado judgement was on an administrative issue (wether he can be on the ballot) and the question of whether he enganged in insurrection needed to be examined to make that decision. Someone more knowledgeable might tell us whether the standard of proof was different here than in a criminal trial, but in any case the court wasn’t asked to decide whether Trump engaged in insurrection as per the criminal code.

      Sidney Blumenthal wrote a comment in the Guardian a few days ago which I’m sure is an interesting read for all readers of this blog. He goes through a lot of details like the one above, and concludes that the US Supreme Court is now in a bind to either let Trump fall or contradict/destroy the basis of many controversial conservative decisions (abortion etc.):

      https://www.theguardian.com/commentisfree/2023/dec/26/trump-us-supreme-court-crisis

      Reply
      1. Chuck M. says:
        1st January 2024 at 21:35

        The trial judge in the Colorado case found by clear and convincing evidence that Trump had engaged in insurrection. That is a lower standard than that required for conviction in a criminal case, to wit, proof beyond a reasonable doubt, but it is higher than the usual standard of proof in civil litigation, preponderance of the evidence.

        Reply
  4. Ann Higgins says:
    31st December 2023 at 12:10

    The issue of whether the constitution should be used to remove Trump from the ballot has been discussed almost as nauseam by US political and legal analysts but few with your economy of words.

    In the end it comes down to this. Trump and his gang will use every means legal and illegal at their disposal to gain power, so I see nothing wrong in those who want to stop him using every legal means to do so.

    Reply
  5. Maurits Dolmans says:
    31st December 2023 at 12:51

    Your last question is an important one: it points at the paradox of democracy. And we learned the lesson of that in 1933 when Hitler won the German election. That solution to that conundrum is to take such action as is required to preserve democracy and civil liberties. And in this case, to preserve our economy and civilization as a whole given Trump’s views on the climate crisis.

    Fortunately my the 14th amendment of the US Constitution has a clause that excluded insurrectionist from office. We may yet be saved by Constitutional means.

    Reply
  6. Mark Bloomfield says:
    31st December 2023 at 13:44

    There is no real political discourse in the US beyond that which Wall Street / Big Money will allow. You see, because US politicians need to raise funds to get elected / re-elected, they are beholden to those with money. Jeff Connaughton estimated members of Congress spend about one third of their time fund raising: meeting lobbyists etc. Big Money is hopelessly entangled with politics so that real choice is denied the electorate. There is a sense of futility voting at all. The capture now extends to all American institutions. Including the media.

    Reply
  7. Tristan Ward says:
    31st December 2023 at 16:23

    I too have been thinking about these questions.

    It seems perfectly clear to me that a liberal and democratic system is entitled to exclude those who deny the legitimacy of the electoral process (backed up by a genuinely independent judiciary that can examine the electoral process as necessary). Those who genuinely think that a liberal democracy is the best possible system for organizing a polity are surely entitled to defend it against those who disagree (including so called “illberal democrats”.

    It’s about time we started to make express and overt distinctions between liberal democrats (those who see representative democracy, rule of law, human rights, resolution of argument by appeal to reason and a free by properly regulated market, as fundamental to a healthy polity) and the rest (including those who call themselves (illiberal) democrats).

    Reply
  8. richard says:
    31st December 2023 at 16:36

    Your post has led me to a cursory reading of the American Constitution and its’ 27 Amendments.

    In summary:

    1. If an autocratic President tried to impinge my rights under Amendment 1, I would exercise my rights under Amendment 2 to take up arms against him to protect myself family and neighbours.

    2. If such a President were to send storm troopers to my house I would ask them to leave relying upon my rights under Amendment 4.

    3. Amendment 6 gives Americans the right to a speedy and fair public trial with the right to an impartial jury and Defence Counsel . Best not to mention this too much in the UK.

    4. Amendment 8 bans extreme punishments so let us all send
    those pesky migrants to Rwanda for life.

    5. Whatever you do , do not mention Amendments 10 and 11. Scottish , Welsh and Northern Irish Nationalists would have a field day.

    6. If at the next General Election you are being refused the right to vote then recite Amendment 15 verbatim.

    I could continue but stop here and wish you a Happy New Year hopefully free of hornets’ nests.

    Reply
  9. Adrian+Wade says:
    1st January 2024 at 09:30

    The root of the peril seems to lie in the our culture’s relationship with information. The utility of the stuff – and its destructive power – are directly related to the users ability to assess its quality. Even the erudite struggle with our modern plague of relentless overt bamboozlement. A democracy increasingly thirsty for meaningful information is doomed like a sailor with nothing but salt water to drink.

    Power seekers have discovered that making rational debate impossible is key to winning popularity contests; one can simply rely on making people angry with moronic name calling and gaslighting by passing off meaningless slogans about trivial untestable thesis as political discourse. It’s so much easier that old fashioned winning arguments based on evidence and objective tests of outcomes. The tools that make mass ‘angrification’ of electorates possible have become commodities sold off the shelf by successful tech companies.

    The only political reality left standing seems to be that you don’t get to vote for anyone who even acknowledges this dire state of affairs – let alone someone with a realistic plan for dealing with it.

    Democracy in the tech age is ill with information poisoning just when we need a lot of clean fresh consistent stuff to battle the
    life threatening effects of a truly earth shaking gas and oil hangover.

    Happy New Year :)

    Reply
  10. Les Rose says:
    1st January 2024 at 10:14

    I keep asking this in various fora, and never get a clear answer. Why is the US judiciary not independent, but is overtly political? What does the constitution say about this?

    Reply
  11. David Sharman says:
    1st January 2024 at 13:27

    “Of course, the illiberals have not so far won either of these battles.”

    Regrettably, both these battles have been lost on a number of occasions as the terrain is not solely the UK and the USA. The most obvious recent one is that of Orban in 2010. One only has to look at who turns up for his masterclasses to realise that the US and UK far right are part of the problem, not part of the solution.

    The classic exemplar was of course Hitler, 1933. From that we can deduce that the current (regrettably mainstream) US and UK far right are indeed far right, not the lesser mild-right variety. We do ourselves no favours by pretending that the current UK and USA right wing are anything other than under far right control.

    There are other losses, though they tend to get less airtime because they are not so often in big western countries. The Phillipines springs to mind, as does various Latin American exemplars. Israel under Netanyahu probably qualifies as well (pending the outcome of various court cases and law changes which may reveal otherwise).

    The more difficult exercise is to try to identify where & how the loss(es) were reversed without recourse to violence. The most recent example of this is Tusk, 2023 regaining control in Poland from PiS under Morawiecki and so overturning a 2015-2023 run of PiS control. It seems that PiS had not been quite as effective in gaining total control as Orban has been, and the Polish people have better illiberal antibodies than in the corresponding Hungarian polis. Other factors, such as the relative influences of malign and benign external actors had (and still have) different weights in both cases, including of course the constitutional framework and processes of the EU being brought to bear. It might be worth examining these aspects more closely if one is serious about looking for ways out of this cul de sac.

    Reply
  12. Matt Flaherty says:
    1st January 2024 at 16:10

    I’ve got bad news for you all. Trump is going to win the election. I’d put money on it. Having him removed from the ballot in some states will not affect this. There will be write-in campaigns. The Republican party will not put someone else in his place.

    The Democrats have given the game away with all of these legal actions, regardless of their merits. It was predictable and ought to have been easily forseeable. David once wrote that Trump cannot be defeated in the courts. He has to be defeated politically. This is true, and that’s why these actions were so naive and ill-conceived.

    Look where he is now! He’s easily the leader for the Republican nomination. He doesn’t even really have to campaign. His campaign is basically to go into court, then come out and make all kinds of inflammatory statements to energize his base. He doesn’t have to show up to debates either.

    It doesn’t help that Biden is very weak. He probably has dementia. He said in 2020 that “If anything changed in my health, making it incapable for me to fully exert all the energy and mental acuity that was needed to be done, then I give you my word: I would not run again”. It is quite clear that he never meant that. I’ve seen him refered to as President Droolcup. It’s not pretty, and that is narrative that Trump is going to pumping hard.

    In some ways, Trump winning wouldn’t even be the worst result. If he does clearly win the election, it will not be contested, at least not for long. On the other hand, if he loses then he already has numerous grievances to point to in order to make the point that the election was rigged, especially if he fails to carry one of the states where he is not on the ballot. This would be a disaster. I really believe that it would be final straw for the American democracy. I’m not saying I want him to win, but I’m geniunely afraid for the future if he loses.

    If Trump does win, then he is vigorously opposed for four years and then he’s gone. Biden won’t run in 2028. It will be Harris. I don’t know whether she’ll have any serious competition in the primaries, but I hope not. These are grim times.

    Reply
  13. Harry Smart says:
    1st January 2024 at 17:18

    There are too many countries now where liberals are permanently playing whackamole, fighting off assaults on electoral integrity or an independent judiciary; defending every conceivable check and balance.

    They’re ordinary people, they get burnt out, you can only take online abuse for so long, let alone doxxing and credible threats to life, limb and family. Those of us who occasionally put our hands in our pockets to support particular campaigns .. we don’t all have deep pockets. Whackamole under threat is exhausting. Liberal elected politicians and civil servants are opting out and who can blame them. Their lives have been ‘brace, brace’ for years: you can only do it for so long.

    This is one of the stories of how democracies fail that rarely gets told, but it may be the thing in the US that tips the balance, and it’s not impossible in the UK either.

    Reply
    1. Linda says:
      1st January 2024 at 23:12

      Agree with you, Harry.

      Also, it’s nearly impossible for lone individuals and human groups to adequately and promptly defend the interests of their society and themselves against opponents armed with a full array of “bots” and other cyber resources.

      Reply
  14. Deborah F says:
    1st January 2024 at 23:07

    Slightly tangential, but I thoroughly recommend a short series starting on 31 August 2023 in Malcolm Gladwell’s Revisionist History podcast about guns and the US constitution.
    The history of it all, and the contrived interpretations of the constitutional amendment, are fascinating – and depressing….

    Reply

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