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Former President Donald Trump recently stated that the massive fraud that he believes occurred in the 2020 election "allows for termination of all rules... even those found in the Constitution." This is a dangerous and unprecedented statement by a former and possibly future president.
When Trump took office in 2017, he swore to "preserve, protect, and defend the Constitution." If he were to be elected again in 2024, he would be required under the Constitution, to take the same oath. That oath makes no exception for claims about an unfair or even fraudulent election. There are mechanisms for challenging elections under the Constitution. Indeed, Trump sought to employ his interpretation of the Constitution when he tried, unsuccessfully, to get Vice President Pence to reject the electoral votes of certain states. He also engaged in constitutionally protected speech when he made his ill-advised Jan. 6 talk. But now he seems to suggest that it would be permissible to act outside of the Constitution to challenge his electoral defeat.
Let us never forget that the only reason Trump was elected president in 2016 was because of the Constitution. He lost the popular vote by a considerable majority. He became president only because the very Constitution he would undermine provided for presidents to be elected by the votes of the electoral college rather than direct popular votes. Taking Trump's dangerous argument to its logical or illogical conclusion would permit Hillary Clinton to have called for the termination of constitutional rules in order to affect the will of voters, a substantial majority of whom cast their ballots for her.
Trump can't have it both ways. He can't depend on the Constitution to win an election and then seek to terminate the Constitution when he loses an election. The United States Constitution is the oldest surviving written constitution in history. It has survived crises, both internal and external. It has an amendment process by which its provisions can be changed, and new provisions added. What it does not have is a provision for terminating it if a presidential candidate is dissatisfied with the results of an election.
If Trump were able to terminate the Constitution at will, then other presidents or losing candidates could do the same. This would mark the end of the rule of constitutional law which has served our country so well over the years. Our constitution is not perfect. Its origin was in compromises, some of them deeply immoral. It was not written for a democracy, but rather for a Republic. Indeed, many of its key provisions are anti-democratic. They include the electoral college, the Senate, and an appointed judiciary with the power to overrule the elected branches. Today, many on the hard left are advocating termination or ignoring what they regard as an anachronistic document written by slave-owning men. Now the leader of the right wing seems to be joining that call. The combination of hard left and hard right calls to terminate the Constitution enhance the possibility that this movement may become more mainstream.
Throughout history, there have been calls for termination of the Constitution. In the beginning, critics called it a "godless Constitution." Abolitionists called it a slave owners Constitution. Following the enactment of the post-Civil War amendments, many southerners regarded the Constitution as "victors justice," really injustice. During the New Deal, many Democrats sought as a barrier to economic and social progress. During the Civil Rights movement, many southerners accused it of destroying their way of life.
Now, radical and woke academics see it as a barrier to their utopias. It is against this historical background that Trump's ill-advised statement must be considered.
America is a centrist country that has traditionally marginalized both the hard right and the hard left. Americans have rejected past efforts to terminate the Constitution, while accepting amendments and judicial interpretations that make it relevant to contemporary concerns. The Constitution "ain't broke." We should not scuttle it. Nor should we pack the courts in a partisan manner. The rule of law requires that all Americans comply with the constitution. No one is above the law and certainly no one is above the Constitution.
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The views expressed in this article are the writer's own.
