Has the Constitution Failed?
The reality is, I can't say no.
Dan Nexon, a Georgetown Political Scientist, wrote the following post at Lawyer, Guns and Money, The State of the Republic is Grim, which inspires a lot of thoughts from me. I am going to highlight the following two bullet points, but I might suggest a full read of his piece before the reader sallies forth below.
I will spoil things are follows: I basically agree, and this touches on things I have been thinking about for months (or, in some cases, for decades).
I will simply take his first two bullet points as the basic focus.
- The Republic as we knew it is over. The fight now is whether the new one will be a fascistic, competitive authoritarian regime or a pluralist democracy that, we can hope, is better than what came before.
- Even if you think restoration is possible, it’s a bad idea. The Constitution has failed. Or, more accurately, the Constitutional order built out of the New Deal, the Second Reconstruction, and the repudiation of the Nixon presidency has failed. This is not a prediction. It’s not a “if we continue on our current course.” The Constitution as designed by the founders, was supposed to prevent the current regime. Its original guardrails did not work. The ones added after the Civil War did not work. The de facto amendments created by the accretion of judicial decisions did not work. The post-Watergate reforms did not work.
I agree with these basic assessments, even if my academic temperament wants to wait and see how things play out. Clear analysis is hard to do in the middle of a crisis, but it is clear that we are experiencing something new in the White House, alongside the complicity of Republicans in Congress and the active helping hand of the Supreme Court.
It is difficult to summarize how bad this administration is (it’s part of why I have the In Front of Our Nose series, because it is just so much). I suspect that if, for some reason, you are reading this but think Trump is a normal president, nothing I can say will disuade you, and if you agree with me that he is a clear threat to the constitutional order, I don’t need to make a list.
I will just note the following. He is usurping congressional authority on spending and staffing, and therefore literally ignoring the law. He has empowered ICE to violate due process. He has ordered the military to commit murder in the Caribbean (and they have complied). He has publicly directed the Attorney General to go after his enemies because he, Trump, declares them to be guilty. He has pardoned/commuted the sentences of ~1500 people who tried to disrupt a constitutional process. All the while, he and his family have been enriching themselves because he is president.
Oh, and the Supreme Court has said he is immune from prosecution for anything linked to his “official duties.”
The fact that the above is my short version of the situation is more than a bit disturbing.
The first bullet point raises the key question of what comes next after Trump, and was the thing I had already been thinking about writing about since the early weeks of the administration, when it became clear pretty quickly what we were dealing with (as exemplified by DOGE, although not exclusively). I will likely amplify this in another post.
I think Nexon is correct. We get one of the following. Note that I have broken one of his categories into two by separating “fascistic, competitive authoritarian regime” into “deeper fascism” or “competitive authoritarianism.”
- Deeper fascism. Trump (more likely Miller, Vance, Vought, Homan, etc.) finds a way to truly move the country into a clearer dictatorial structure. This is the nightmare scenario, which I think is unlikely, but is real enough that I can’t discount it.
- Competitive Authoritarianism. There are two versions of this in my head,
- One-Party. Here, the GOP is able to manipulate the system in 2026 and 2028 in a way that looks like we are having competitive elections, but the playing field is tilted towards the GOP sufficiently that they win regardless of the actual popular preference. This is the US version of Hungary, at least in broad brushstrokes.
- Two-Party. In this version, the Democrats are able to win back power, but the system is sufficiently broken that they will govern like Trump has: by fiat and with the Congress being basically a vestigial organ. This is a broken democracy at best.
- Pluralist Democracy. This is going to require reforms and could only come about under current conditions if the Democrats win back power and do what they failed to do in 2021: use their majority to institute change. My post from August of 2020 provides a starting spot: Reforms: the Possible, the Improbable, and the Unpossible. I might change some of those recommendations if I rewrote the post, but the basic gist remains, I think, on point.
Quite frankly, since the early days of this term, most specifically because of what DOGE did (and as amplified by a string of shadow docket decisions by SCOTUS), I think that the most likely outcome of all of this is 2b: Two-party competitive authoritarianism, with every four to eight years one of the two parties comes to power and governing largely through executive action in a version of what Guillermo O’Donnell once called “delegative democracy” (which was a critique of the poor quality of Latin American democracy in the post-authoritarian period–something I have been meaning to write about). This would continue until one side was able to move us to 2a (or worse). It would look like the constitutional order was still functioning, but that would be an illusion.
The one thing that I do not think is going to happen is that we are “going back to normal” (Nexon’s “restoration” category). The notion that we are going to collectively realize that Trump was a mistake or an aberration and we can just “get back to politics as usual” (whatever that even means) is a fantasy.
I get it. At any moment in time, I can maybe, sort of convince myself of this. It was certainly my impulse in late 2015. As long-time readers know, I did not think that Trump would be nominated, and yet he was.
And it is clear that Democrats in 2021 thought our long national nightmare was over, and so couldn’t even muster the strength to engage in incredibly modest and inadequate reform (such as the For the People Act and the John Lewis Voting Rights Act). The best they did was change the rules about counting Electoral Votes. This was, to put it mildly, putting one of those very small round band-aids used for tiny cuts as a palliative for a sucking chest wound.
Democrats in 2021 had regained power, and they didn’t want to risk it being, you know, provocative or anything. Surely the Trump thing was an aberration!
And then came November 2024.
Worse, then came January 2025 and an unconstrained Trump.
So, to Nexon’s second bullet point above, yes, the Constitutional order, as amended, has failed to provide the guardrails and even the kind of governance that it purports to provide.
I would note that, for the numerous obvious flaws that one can assign to the Founders, they thought that the Constitution was going to at least protect against a demagogic tyrant (see Federalist 68) and that the branches would jealously guard their own powers (that’s the whole point of Federalist 51).
To which I can only say, in the most technical of ways, oops!
The notion that the impeachment power would serve as a check on the executive also qualifies as an oops.
I would note that there are several major mistakes they made.
- Not understanding political parties and how they would distort the separation of powers notion is chief among them. Madison’s theory of factional balancing, as outlined in Federalist 10, was simply incorrect.
- The way that westward expansion would create substantial distortions to the Senate and Electoral College–not to mention a number of inherent flaws in those institutions from the get-go, but such is the nature of political compromise.
- The way in which lifetime appointments to the bench would create any number of perverse distortions to the relationship between democratic legitimacy and the Court’s power.
All of this is linked, I would argue, to the set of problematic interlocking incentive structures created by the constitutional order. Or, as is the case with parties and primaries, not anticipated by that order.
A core fact about politicians is that they are power-seeking actors. I don’t know how many times I stood in front of a classroom and pointed out that if a politician wants to effect policy change, steal from the government, or chase after sex with the interns, they all have one preeminent goal: getting and retaining power by being elected and re-elected.
Dating back to my dissertation, a core notion in my academic work is that the public gets what the general incentive structure of the institutional order provides.
For example, one of the reasons that I became a critic of primary elections as a nominating mechanism over the course of my career (I did not start with that position, by the way) was that it distorts the incentives for the behavior of politicians. Primaries, especially when combined with uncompetitive districts or states, mean that the incentive for a politician who is seeking power is to please the primary electorate. That means that pleasing a majority of the district is not the main political motivator. Nor is it necessarily pleasing party leadership.*
If the main incentive in national legislative politics is getting re-nominated (since re-election is the easy part in most states and districts), then the goal is simply to be able to appeal to that slice of the electorate that shows up for the nomination process and fend off a significant challenger. Pleasing a majority of your voters, let alone the common good, is a secondary concern, at best.
If anyone needs a practical example of this, I will provide two. Senator Joni Ernst (R-IA) voted for Pete Hegseth to be Secretary of Defense, not because she thought he was qualified.** She did it to protect herself from a primary challenge. Senator Bill Cassidy (R-LA) knew that Robert F. Kennedy, Jr. shouldn’t be the Secretary of Health and Human Services, and yet he voted for him. The consequences of Senators who are more concerned with their re-nomination fights than they are the public good are made quite clear in these examples.
The reason I have long argued for proportional representation is not simply because more parties are better for the sake of having more parties. Proportional representation elections make politics more competitive and responsive. Therefore, in such systems, parties/candidates have an incentive to try and please as many constituents as they can to achieve power.
I think that proportional representation election does a better job of aligning the public’s need for representation and responsive politicians with the needs of politicians to get elected and then re-elected.
Many people over the years here at OTB, I think, have misunderstood me to be arguing that the PR automatically means better policy. Nothing guarantees specific policy outcomes, save for dictatorship to some degree. But PR provides a far better pathway to better aligning various hoped-for outcomes and proper incentives.
I could go on and on with examples, but one of the reasons I don’t like the Electoral College is that it incentivizes swing-state-oriented campaigns and not truly national ones.
Incentives matter, and incentives are shaped in large measure by institutional design.
To move away from the specific institutional features I frequently criticize, I would turn the question this way: where in our process of selecting people to govern us, that the system actually incentivize power-seeking politicians to align their personal goals for continued power with serving the public good in some general sense?
I say this knowing that there is no particularly perfect way to accomplish this for a variety of reasons, not the least of which is that “the public good” is, itself, a contested notion.
Part of the reason I don’t like “messaging” arguments is that they are typically predicated on the notion that, deep down, our elections are about swaying the majority, and if we (whoever “we” might be) can get most people to see our point, we could win.
But where in this system is that true?
A minority of citizens controls the Senate. And Senators are selected, in the main, by primaries, and therefore by a minority of that state’s voters.
A minority of citizens can elect the President, and even when a majority does, it is predicated on a campaign and election process that focuses attention on a minority of the electorate.
The House ostensibly reflects a national majority, but it doesn’t always. And even when it technically does, less than 10% of the seats are elected in truly competitive districts (and that is lumping toss-ups with leaners–the true toss-ups are less than 5%). And, like the Senate, primaries mean that most U.S. representatives really owe their careers to a mere slice of their district’s population.
I would further note that a combination of the Senate and the President, alongside the random exigencies of death and voluntary retirements, gives us the whole of the federal judiciary and the Supreme Court in particular. I cannot stress enough how the current Court is the direct result of two presidents who came to power first after losing the Electoral College, and in particular, Trump massively lost the popular vote and managed to get three appointees to the Court, all confirmed by a Senate majority that did not represent the majority of US citizens.***
There is a lot to unpack from the above, but I will point to one clear theme: minority power over the majority.
Moreover, even if we take the notion of “We the People” to be about propertied white men, which is not an entirely unfair interpretation, the Framers would have assumed that, in terms of things like elections and legislative procedure that the majority of those propertied white men would prevail in most instances.
I point this out to acknowledge the democratic deficiencies of the early Republic, but to point out that even in that context, it wasn’t supposed to be minority rule, even if there were institutional features to protect against majority tyranny.
Really, there are two pathways to go down after 1789. One is the one that we seemed to be one: that of an aspirational liberal, pluralistic democracy that expanded the franchise over time and respected the diverse interests within a democratic polity. Or, one could just say that since in 1789 the system privileged white, wealthy, and almost certainly Christian men, well then that is what it still means.
As such, the competition is between liberal, pluralist democracy and fascist, reactionary, white nationalism.
At any rate, the Trump administration is quite definitively confirming something that was already obvious: partisanship is far more important than the separation of powers.**** And that partisanship will allow the constitutional guardrails to be utterly ignored.
The fact that removal via impeachment is basically dead letter speaks to this point. Under what circumstances can any of us imagine either party actually ousting their president? It would have to be something so egregious and obvious that resignation would come first. And in today’s polarized environment, I’m not seeing it.
Let me note that a system that rewards numeric minorities in elections helps exacerbate the natural flow of power into the hands of the wealthy. It is hard to ignore the growing power of the billionaire class in American politics. If anything, it is worth noting that part of what motivated Ernst to vote to confirm Hegseth was the real potential that Elon Musk would spend some of his spare change to fund a primary challenger. I could say much more on this, but this post is already crazy-long.
To bring this all back to the choices Nexon lays out as I elucidated above, we need reform that will better align incentives with majority sentiment. You can’t have an effective pluralistic democracy if the minority rules.
If we want better politics and better politicians, we need better incentive structures. That’s really the core of pretty much every post on this topic I have written.
By the way, anyone who reads this and says that all that minority power is because we have a republic, not a democracy, I would counter that what you are saying, really, is that you are using the term “republic” to cover for a preference for authoritarianism because you think that you are part of the governing minority.
*Unless leadership can heavily influence the primary, as we have seen Trump try to do.
**Not that Ernst has covered herself with glory after that vote, to wit: Joni Ernst and the Ongoing Devolution of the GOP.
***Bush did not get any appointees in his first term, but got two in his second (Roberts and Alito). I would argue that if he had not won the first term, he would not have bounced back and beat Gore in 2004. As such, his gateway to two Justices was a popular vote loss, even if he won the popular vote in 2004. Given the damage that Roberts has done, this is no small thing, nor is Alito’s obviously ideological hackery. But the unambiguous case is Trump. Trump lost the popular vote by millions and yet was able, with Mitch McConnell’s help, to get three Justices (Gorsuch, Kavanaugh, Coney-Barrett) and to therefore shape the Court for a generation, unless a Democratic President and Senate decides to add seats.
****See my various posts on this:
The Constitution did not fail; it is not self-executing. Some people, now a majority in government, failed to uphold the Constitution. Fealty to the Constitution is sacrosanct, until it is not.
@DAllenABQ: If I build a retaining wall and it does not hold against the weight of the dirt it is supposed to hold back, is it not the case that the wall failed and that I probably designed and/or constructed the wall improperly in some way?
a) Passing any of these required getting rid of the filibuster. Schumer didn’t have the votes to get legislative exceptions added to the filibuster. (It appears that Thune doesn’t currently have the votes to do it for the budget resolution.)
b) Even absent the filibuster, it is unclear that Schumer had 50 votes in the Senate. I followed the language in the John Lewis Act closely. As introduced, it was an “East Coast” bill: precincts and absentee ballots. Vote by mail language was clearly tacked on as an afterthought. The Census Bureau’s 13-state western region has moved very much away from the precinct/absentee model to near universal mail distribution of ballots. Absent some massive change dictated by the feds, >90% of all ballots cast in the West in the 2026 midterms will be mail ballots. (Note: not absentee ballots, that term has been largely removed in the statutes in those states.) <10% will be cast in vote centers. (Precinct has also largely disappeared.) But the John Lewis Act would have required those states to recreate, at large expense, a parallel precinct system. If it had come to a final vote in the Senate, I anticipated several Democrats from western states to vote against those complications.
I keep coming back to one question, “What changed?” With the noteworthy exception of the early 1860s, the Constitution seemed to more or less work for over 200 years.
One possibility is that it never really worked as well as we are taught. But I can see a few major changes. First, the oft mentioned end of the Dixiecrats. Yesterday Krugman in his Substack had DW-Nominate plots from the early 70s and now, showing a deal of ideology overlap in the 70s and a great separation now. Johnson said the Civil Rights act would cost the Democrats the South for a generation. He seems to have been an optimist. Second, money. Not just money, but tons of money, piles of money, very unevenly distributed. I’ve occasionally quoted a letter President Eisenhower sent to a brother. He noted that there were conservative millionaires trying to influence politics, but they were few, and crazy. (Isn’t it quaint that the richest guys in America were mere millionaires?) Now they are legion, but still crazy. Once upon a time the interests of New York mill owners and South Carolina plantation owners were in conflict. Now they seem united behind low taxes and regulation. A third change is the inevitable growth in the scope of government. The government of the 1880s was corrupt as hell and oligarchic, but it made less difference.
I believe if Two Party Competitive Authoritarianism were to be the outcome, it would require that the Democratic Party, when it came to power, would govern through not only executive actions, but also through lawlessness and falsehoods. At least, if the Dems were to be “competitive.” Democratic presidents have misused Executive Orders in the past, but what is new in Trump 2.0 is the abandonment of any pretense that an EO needs be bound by law and by the whole party’s brazen lying about the intent and the results of their governance. I just don’t think the Democrats (to their credit IMHO) have that much lawlessness and mendacity in them.
So, it’s One Party (non-competitive) Authoritarianism (which likely means Deeper Fascism with the GOP in charge) or it’s Pluralist Democracy. We’ve got to pray for the required reforms as the more likely alternative is dreadful to even think about.
@Michael Cain: But all of that is just why the representational structure of the Senate is a core problem.
I could have gone into the filibuster as well, which is a minority veto in a chamber that overrepresents the minority (there is a lot more that could be said on this).
@gVOR10:
A fourth change is the siloing of people’s news sources. I don’t think Trumpism could happen with a Walter Cronkite.
I respectfully disagree with your assessment of the most likely outcome. Hungarian-style, de facto one party rule is the best we can hope for. Even that depends on the party in power suffering the opposition to exist. Leavitt and other people in the current regime, including Trump himself, has said that their goal is to destroy any Democratic leadership at the city level, across the United States. What stops them from doing the same thing at other levels of our political system? Congress? The Supreme Court? An organized, energetic opposition, leading mass mobilization and civil disobedience at a massive scale?
While people are trying to make that last strategy work, it’s still too little. The first two bulwarks have completely failed. In fact, they’ve collaborated with the authoritarians. State governments seem the most effective opposition, but it’s unclear how they can stop an aggressive campaign to interfere with or outright prevent elections within their borders. And they can’t oppose every action by this regime.
I don’t remember where I heard the quote, but someone said that authoritarians and fascists tell you the truth about what they will do, and lie about what they have done. That’s definitely the pattern here, with MAGA. They have been aggressively working to steamroll any institutional opposition to their reign. Why would they pause at the shores of electoral opposition? They certainly have the instruments to do so. ICE goon squads, frivolous law suits (directed at Secretaries of State and other officials critical to the operation of elections), the National Guard and the regular military deployed for missions they should never pursue, 24/7 screamfests against the enemy within, suppression of dissenting viewpoints in mass media, assistance from foreign anti-democratic forces mucking with the American electorate…The means are certainly there, and they have stated their ends.
The other part of this equation is the clearly fascist portion of the American electorate, including true believers, opportunists, and people just willing to play along. You know, the people who are now the core of the Republican Party, the people whom elected officials fear, and whom leaders and influencers fuel with resentful and vengeful fantasies. They’re drunk on their reactionary vision of America, which has denied the legitimacy of people who are not white, male, Christian, and heterosexual. They have been energetically erasing reality from every corner and every cranny of America’s public space. These are not people who are patient with “Demonrats,” minorities, people they see as deviant, and pretty much everyone who raises the slightest objection to their absolutist programme for the United States. Plus, they fetishize political violence. So why stop at de facto one party rule? Orbanism is for cucks.
Hoping for two-party competitive authoritarianism is as dangerous as clinging to the flotsam and jetsam of “normalism.”
@gVOR10: I have detailed before, in several posts, the way in which the partisan resorting that really hit an inflection point with the 1994 mid-terms has led us to here.
The problematic pathologies of presidential democracy were known, but the US seemed immune.
I agree that money in politics is part of the problem, but the main problem is the structure of the system that allows the minority to rule in a system that ostensibly is supposed to empower the majority.
We are fucked. The Constitution is impossible to change, so it cannot adapt and becomes less and less appropriate to current circumstances. The Constitution only ever worked because the American people used to be too smart and too decent to elect a Trump, and we still had notions of public virtue that shamed politicians into compliance.
What to do? Well, I’m trying to GTFO of this country. That’s my solution. Granted half the world’s democracies are also failing, but the Czechs and the Poles don’t have hundreds of millions of guns in the hands of morons.
There is however another alternative: military coup. That usually works out pretty well, right? But at the moment I’d trust any random Army major to make policy over 90% of elected officials.
So, yep, if I can ever get my visa processed, I am gone.
@Kingdaddy:
We’ll know soon enough.
The first clear test will be the midterms.
The second will be 2028.
What little hope I have is predicated on the notion that even dictators need support. He is unpopular, and it seems likely that he will continue to be, and likely will become more unpopular as time goes on.
There is also the reality that the American polity is large and unwieldy and hard to fully control.
Don’t read any of this as optimism. It is my honest assessment at the moment
I am not hoping for it. If I am going to hope, I will hope for the fever breaking or, better yet, people finally seeing the need for serious reform. But that is all fantasy talk.
I honestly think that of the options on the table, the most likely is 2b, but 2a is very much in the running.
2b still means that the system is utterly broken.
@Scott F.: Go listen to John Stewart’s The Weekly Show since at least the summer, but especially the most recent ep with Tim Miller from the Bulwark. Stewart basically argues for 2b.
It doesn’t require dishonesty; it simply requires seeing what Trump was able to accomplish and using similar levers of power. Tale as old as time.
You don’t think that a Democrat won’t impound ICE funding if the Court has granted that power to POTUS?
The Constitution “worked” because people adhered to accepted norms for the most part. Once people stopped adhering to those we saw the weaknesses in the document. Judges were not selected based upon experience and competence but rather for their partisanship and for being as young as possible and still get votes. Congress is unrepresentative, favoring small states and has become mostly supine anyway. There has been a gradual assumption of authority by POTUS and now Trump has greatly accelerated that change. We have found that there is essentially no way to stop that. The idea of impeachment is a farce though to be fair to the founders they didnt realize how party politics would dominate.
I remain very skeptical about this improving. The GOP owns SCOTUS for the next 50 years and gerrymandering pandering just keeps getting worse.
Steve
@Michael Reynolds:
That is maybe the core deficiency of the Constitution. Karl Popper’s “Open Society” it ain’t. The Founders made it hard to amend, I don’t think they meant to make it near impossible. And the idea of holding a 21st century Constitutional Convention, with Koch and Musk and Thiel money floating around, terrifies me.
Good, but disturbing, of course, article. Your paragraph that begins “I will just note the following” alone has enough material that every American should be horrified at what’s been happening.
I don’t think you addressed it, but after a few years of more and more emboldened and power-mad behavior, I would not at all be surprised if the midterm elections were directly interfered with in various ways. Trump obviously has no morals and has already made attempts to do so in previous elections, so it starts from the top. They’ve disbanded election integrity teams. Russia and others would be practically invited to do their worst. It would be a more active route to your 2a.
Tragic that we’ve reached this point.
@Steven L. Taylor: You don’t think that a Democrat won’t impound ICE funding if the Court has granted that power to POTUS?
Sadly, no, I think a Democrat would turn ICE on his or her opposition in the same manner that Trump is. They’ve shown they’ll cling to existing powers just like the GOP – the big difference seems to be that Republicans prefer to innovate powers, while Democrats would rather point to existing power and say “see, it’s like that!”
@Kingdaddy: State governments seem the most effective opposition, but it’s unclear how they can stop an aggressive campaign to interfere with or outright prevent elections within their borders. And they can’t oppose every action by this regime.
Option 3 incorporate that the US might fracture? The massive, massive difference between the US and e.g. Hungary is that the US is already segmented into blocs that are larger than most countries – both economically and geographically. Even if the US military wants to hold many of the states, the odds of success at occupying all would be limited. California and NYC would have to go willingly or the US would lose that 25% of its economy. Is Trump going to engage the military in an essentially unwinnable street-to-street war in NYC? He’d probably try to drop troops into San Fran, only to realize that San Jose is bigger, more of an economic driver, and more diverse. Whoops.
Anyway, I also think we’re stuck with 2b. Sucks to suck, but that’s where we are.
Nexon’s post about authoritarian capacity is another must-read:
https://www.lawyersgunsmoneyblog.com/2025/10/authoritarian-capacity-and-the-trump-regime
Gosh, they’re sure working like busy little bees to create an arsenal of repression. Does anyone think there will be limits to their use of it, keeping their grubby mitts off free and fair elections, based on the principle of, er…Oh right, there are no principles, just domination in the name of Our America somethingsomething.
@Kingdaddy: Just good Patriots destroying the country to save the country.
Sure, I could see the Democrats impounding ICE funding or even disbanding ICE.
But, what would you imagine the Democrats might do with that impounded funding that would be a comparable antithesis of Miller’s masked goon squads rousting a Chicago apartment building, Trump’s extortion of media companies and universities, or his pardoning of the J6 rioters? Do you think there is any chance a Democratic president would send California’s National Guard into rural Ohio to fight crime?
To be competitively authoritarian, the Democrats would have to take their own power-grabbing actions when they held the government. They would have to actually do what the Republicans falsely claim they want to do – things like opening the borders in order to replace the white supremacists or shuttering Fox News. At “worst”, they might by fiat expand SCOTUS, increase the size of the House, or make Puerto Rico & DC states . But, you know and I know, those actions would be far closer to the reforms required for a pluralist democracy than they would be moves to secure a leftist autocracy.
Yes, a stronger Constitution should have prevented the current regime and its failure to do so should make clear that returning to some status quo ante will also fail. But, we shouldn’t ignore the asymmetry of our respective parties’ behaviors, especially the abnormal horridness of today’s Republicans. To be frank, any new constitutional system that might rise from the ashes of our current situation would need to be designed by the founders of United States of New America to have stronger checks and balances to prevent the rise of a regime as uniquely lawless as our current regime.
@Michael Reynolds:
Amen to that! How nice would it be to restore even the modicum of public virtue that would make shaming useful again?
@Scott F.:
You are misunderstanding the term. I will need to write a post on it, I guess. But that term refers to the system, not the policy choices of the party, per se. It is about how power is deployed.
I don’t think we can realistically hope to reform the current government structures within the current framework to achieve lasting pluralistic democracy. I used to think elimination of the filibuster and EC would be enough, and that they were achievable. But when a natural disaster makes your house uninhabitable sometimes the best thing to do is knock down the remaining structure and build a new house. It may be more expensive, but you’ll be a lot happier with the modern structure and won’t have to wonder if creaks in the night are just normal settling or presage a collapse because a structural support was a lot more badly damaged than the engineers thought
No idea where the current path leads us.
Whatever the outcome, it may not fit neatly in one of those boxes. But even if it does, we have little odea exactly what it looks like. Until we have some idea of the map, a solid course of action cannot be charted.
Until then, chokepoints cannot be exploited nor pressure points squeezed.
To that last line:
At some point, there will be a power struggle within MAGA. I have grave doubts that it will happen before we have passed the point of no return, but it will happen. Not that any opposition would have fewer fault lines, anyway.
I do wonder what happens if we see more and more videos of ICE, and perhaps military personnel, spilling blood on the streets*. It could get enough fence sitters to pull the picket out of their asses to form meaningful opposition.
Oh, who am I kidding?
We are boned.
*ETA: this is America, people will just start buying land.
@Steven L. Taylor:
Fair enough. I may not get the terms as you are using them, but think I understand the possible outcomes to the extent it matters.
The truly dangerous things the current Trumpist regime are doing aren’t policy per se. The Republican Executive isn’t quashing dissent in the press and universities, sending masked ICE agents and the military into blue cities, or redefining insurrection as patriotism just so they can enact tax breaks for the rich or hardline immigration legislation. The GOP are not saying Democrats are wrong on policy. They are saying Democrats are evil terrorists who will destroy America if they are not stopped. So, Republicans are deploying their power against the system in order to secure their power indefinitely through intimidation and repression. They are diminishing the capacity for unhappy voters to remove them from office.
For Two Party Authoritarianism, where every four to eight years the other of the two parties comes to power, it would have to be conceivable that the opposition could win back the levers of government in some circumstances. I’m afraid we are past the point where victory for Democrats in the midterms will be anything but Pyrrhic if they won’t use that victory to censor Fox and arrest Miller, Noems, Homan et al regardless of the law. The Dems won’t do that, the GOP will conclude they have no choice but to be more intimidating and repressive to win in 2028, and then the die is cast for either One Party Authoritarianism or Deeper Fascism.
Any constitutional system seems, in fact, to rely almost as much, if not more, upon conventions, and habits, and expected political interest balancing, as upon pure legality.
That has been a frequent argument of British conservative political philosophers for a long time.
That overturning tradition in favour of legalities may be relying on a construction that cannot bear the load when tested to the limit.
If the imperatives of party politics, driven by a factional base lead both Congress, and the Supreme Court, to cede all effective power to a populist Executive, voluntarily, there seems little that nominal legal expectations can do to avert that.
@Steven L. Taylor:
Fair. So I’ll be blunt: the John Lewis Act in its various incarnations deserved to fail because they were bad bills. When experts rate the various election systems used by states for accuracy, security, and ease of use, the top positions are dominated by the western vote by mail states. There is no question about which approach — mail distribution or precincts — is superior. But the John Lewis Act forced an inferior system into the dominant position, requiring states with a superior system to spend large sums to get inferior results.
In a proportional system, split as closely nationally as the current D/R divide, the John Lewis Acts would have failed because enough of the D side would recognize their states were getting screwed. House members got to vote against their states’ interests because the bills were going to die in the Senate anyway.
It’s a continent-spanning country. There are going to be regional differences that must be accounted for somehow.
@Kurtz:
There does seem to be a fundamental cleavage within “MAGA”: the tech-bro types, who dream of a minimal-regualtion, minimal-tax, quasi “libertarian” system, in which their wealth and privilege is secured.
And the “populist” faction, who desire state support for both the traditional economy and traditional society, and intervention and welfare for the “deserving”.
There are obvious temporary means to bridge the two positions: culture wars and racism.
But in the longer run, they are likely to be incompatible.
The problem is, is such a “longer run” going to be after the two have co-operated in crushing any external opposition, and leaving them to fight each other for control of a dystopian authoritarian state?
OK, sometimes lately pessimism gets the better of me.
🙁
The real problem for a polity is if all norms are swept aside, and you start to contemplate what your opponents, now considered not mere opponents but enemies, not just of yourself, but of all that you deem to be “right”, might do with such power in their turn.
And then conclude that, obviously, they CANNOT be premitted to attain power, and that any and all means are justified to prevent them doing so.
That mode has been fatal for various polities; it is not impossible that it could be for the US.
If violence breaks out,then our rational scenarios become irrelevant. We have tons of firearms, and some are held by people who are not dispassionate. Craziness and stupidity are not the exclusive possessions of any portion of our political spectrum. The Ohio National Guard is not the only problem. In my judgment, there is a 30% risk of bloodshed. Trump sees that as an opportunity to consolidate his personal power.
I haven’t seen much media coverage of the following, which is another step towards a conventional police state:
It would not be a surprise if federal law enforcement agents acted on this, imprisoning a flag-burner at Guantanamo Bay or El Salvador before American courts can hear any objections, and then defying or filibustering subsequent court orders on the spurious grounds that the judiciary had no authority over foreign territory. If the measure is deemed successful, other executive orders can follow fixing mandatory prison terms for offences Trump finds especially objectionable, without any need for trials.
The post, like Dan Nexon’s, seems to me to pay insufficient attention to the role of the states in the future of governance in the US. Trump’s move to totalitarianism, for example, has been helped enormously by similar tendencies in states like Texas and Florida, even before Trump returned to the White House. On the other hand, those same states worked effectively to impede many of the Biden administration’s initiatives, from running their own anti-immigration programs to refusing to participate in various federal welfare programs. The same applies in reverse for blue states, to some extent, with California having long decided to go it alone in regulatory areas that federal agencies also seek to cover. And of course Republican resentment of “sanctuary cities” is well-known.
It’s inevitable that as the federal government becomes more “competitively authoritarian”, so will the states. Not only that, but red states will actively seek to sabotage and defy Democratic administrations, and blue states will do the same to Republicans. We are seeing evidence of that right now in Illinois and California (and perhaps Oregon very soon). We are seeing it in the Republican flurry of gerrymandering. The political divisions in America will only deepen and get more antagonistic.
Where this all ends I don’t pretend to be able to predict, but I can’t see how it could be anything but bad for America.
@JohnSF:
Don’t forget about religious divisions between Catholics, Evangelicals, and Jews. There is a far longer history of animosity between each of those groups than there is cooperation.
Any alliance among them seems contingent on external factors—domestic and international.
For option 2b, there are different ways it could go. One is something like a classic Roman dictator.
TL;DR: take the near absolute power and use it to effect reforms, then abide by the reforms.
The remember to feed your unicorn before going for a ride…
My big concern is where are the ICBMs and how hard it would be to disable them in order to hack them. Because if it comes to a civil war or even a velvet secession, who has how many would be important to keep any semblance of peace.
@Kathy:
Perhaps Canada could agree to the concepts of a plan to become the 51st state – this regime likes those sort of deals – and in return, be trusted to secure all the nukes.
The navy could sail to neutral ports pending negotiations about who gets what. Ireland, perhaps, or New Zealand.
For some reason I’m reminded of a novel published last century called ‘McCabe PM’, which ended if I remember correctly with the Australian Prime Minister ordering the RAAF to bomb Adelaide.
I’ve seen a number of these essays about erecting a structure which would prevent such a thing as Trumpism from coming to power.
I’m open to structural changes, but its not as if a tiny minority suddenly found a magic loophole.
First, the number of people who support (or at least are willing to acquiesce to) ending democracy is terrifyingly high, somewhere around 35% of the voting electorate.
Second, this isn’t a suddenly fluke, a passion of the moment; It is the result of a decades-long march that has its beginnings from the victories of the civil rights movement. You can see the steadily increasing radicalization of the GOP from Reagan to Gingrich to the Tea Party to Trump; How one by one they picked off SCOTUS seats.
The problem as I see it is less about a flawed structure than a flawed electorate; Even now, when all the things which Can’t happen Here are happening, most polls show that about that same 35% are still in support.
I struggle to imagine a democracy that would somehow prevent those 35% from achieving power, unless the remaining 65% were zealously committed to it, and that rarely happens.
This isn’t to suggest defeat, instead the opposite. We are in a cold war for the life of our democracy, and we need to be brazenly partisan and ruthless in using the structures we have, on every front- social ostracism and shaming, lawfare, and political brinksmanship.