Conservatives have spent three years explaining away the overt authoritarian tendencies of President Trump — who, just in the last week, called the media the “enemy of the people,” demanded retribution against satirists, urged his attorney general to reopen an investigation into his opponent who has already been cleared of wrongdoing, and goaded his supporters in the police and military to unleash extra-legal political violence on the opposing party. But now they have decided it is their turn to take sweet revenge and throw the same accusations back in Democrats’ faces.
The pretext is a series of calls for political reform by Democratic presidential candidates — to end the Electoral College, abolish the filibuster, and perhaps add non-partisan justices to the Supreme Court. Conservatives present these ideas as equally dangerous as anything Trump has proposed, if not more so.
“Democrats once tried to present themselves as defenders of national norms If there are any Democrats left who still believe in that stuff, we suggest they come forward now and try to save their party from the power-hungry crazies who are taking it over,” editorializes the Washington Examiner. “Today it is Democrats who are declaring war on the Constitution … allowing them to marginalize Americans who do not support their increasingly radical agenda and impose it on an unwilling nation,” argues Marc Thiessen. “Fighting one norm-breaker by creating another is an excellent way for the Democrats to fail again,” argues National Review’s David French.
This accusation rests on a series of complete misapprehensions about Constitutional history and what it is Democrats are proposing. It’s true that some left-wing activists have loosely talked about “packing” the Supreme Court. A court pack is when you change the number of seats in order to give your party an advantage. (During the Obama administration, Senate Republicans tried to do this by reducing the number of seats in the powerful D.C. Circuit, spuriously claiming the judges were underworked.)
But Democratic presidential candidates aren’t proposing to do this. What they’re advocating instead, as Eric Levitz points out, is reforms outlined by legal scholars that would correct the highly partisan incentives that have distorted the system. Supreme Court nominations have increasingly turned into a politicized war to manipulate lifetime appointments by appointing loyal apparatchiks vetted by opposing partisan legal teams. The reforms being discussed would not give Democrats a permanent advantage, but would instead permanently create a balanced court in which neither party can confidently secure a majority.
Obviously, from the partisan Republican standpoint, a balanced court is less attractive than the currently Republican-controlled one. Just as obviously, Democrats have a partisan interest in undoing the conservative majority. But this is still not the same as scheming to engineer their own majority.
As for Democratic plans to make the president national vote winner, or to eliminate the legislative filibuster, these are both reforms in keeping with the long tradition of increasing small-d democratic mechanisms. The original Constitution was wildly undemocratic. The Electoral College was originally designed to create elite electors who would make their own decision on who should serve as president, as well as to give slaveholders extra representation via the three-fifths clause. Senators were originally appointed rather than elected, and of course voting was originally restricted primarily to white male landowners. The filibuster was created as an accidental glitch, then required complete unanimity, then 70 votes, the threshold of which was reduced to 60 in 1975, and several exemptions have been carved out.
The system has frequently evolved toward majoritarian principles. Its capacity to do so is, in fact, its greatest feature. The current Republican posture asserts that any change to its features — even change conducted within the Constitutional structure itself — amounts to a rejection of the document and its spirit. You can’t defend the Constitution while trying to tear it up at the same time,” cries Thiessen. A recent Fox News chyron charges, “2020 DEMS TEARING UP THE CONSTITUTION.”
The notion that the Constitution is perfect — as it currently stands, not the original version with slavery and male-only voting and so on — is a completely novel one for the Republicans. This is a party that has in recent decades embraced the routine advocacy of Constitutional amendments to advance or cement right-wing policy. The 2016 Republican platform called for Constitutional amendments on abortion, same-sex marriage, term limits, balanced-budget, and education.
The deeper confusion afflicting the Republicans is that they think the problem with Trump is simply his assault on “norms.” A norm is just want it sounds like — what’s normal, the way things are done. Not all norms are important or worth keeping. Some are trivial (i.e., before Trump, the president always had a pet) and others actively harmful (before Barack Obama, the president was always a white man.)
Not all norms matter. The particular threat posed by Trump is to democratic norms, because they’re one way in which democracies sustain themselves. Not every possible abuse can be prevented with a formal rule. You need some norms to prevent ruling parties from abusing their power in order to perpetuate their control of government and to discourage political violence.
Many left-wing critics who downplay the unique threat posed by Trump have made exactly the same error, treating defenses of democratic norms as though they were defenses of all norms.
Yes, Democratic proposals to change presidential elections so that the second-place vote-getter doesn’t win (i.e., the same rules we use in every other election in this country) and Trump’s proposal to unleash a bloody crackdown by right-wing members of the armed forces are both changes to political norms. One side is proposing to make the system (small-d) democratic, and the other is … not. The conservative intelligentsia is divided between those who actively cheer on the president’s authoritarianism, and those who pretend it’s no different than making the system more democratic. Either way, they are enabling him.