The Constitution Won

The seizure of the Capitol was heartbreaking and infuriating but this week has shown the strength of the Constitution and the wisdom of diffusing power.

As horrible as the insurrection was, as disturbing as Trump’s incitement was, as sad as the desecration of the Capitol was, the Capitol still stands. Congress returned to work. We will have a new president in 13 days. The Constitution lives.

This is not luck but by design. Our Founders crafted a Constitution to thwart tyrants. Power is not limited to the executive or hoarded by one faction. The chief magistrate does not have the means to trample over an election and the law. Terrorists stress-tested the Constitution, their failure validates the labors of the Founders.

But what if different people of lesser character were judges? Secretaries of State? Congresspeople? The Vice President? Would the states have been able to accurately count the votes? Would we remain on track to have a peaceful transfer of power? It’s not hard to imagine a situation where Georgia’s Secretary of State and a few other persons had done the wrong thing we’d be in even more of a crisis.

But personal qualities are not why the system worked as intended. The system endures because it ensures a diffusion power.

It’s a feature, not a bug. The Constitutional Convention intentionally constructed a frustrating government structure to guard against “tyranny of the majority,”

Since we do not have “tyranny of the majority,” there is a structural incentive for those in the minority to accept defeat, knowing that they still retain some power and can always win more power in a future election. Former California Governor Jerry Brown, in a summer podcast interview by Joe Trippi, summed up the importance of this principle: “Democracy is not about one side winning by one percent of the vote, and then shutting the other side out of 100 percent of the decisions. The only way this country can hang together is if there’s a due respect for the non-winners.”

So while an unsettling number of House Republicans refused to accept constitutional reality, a faction of House Republicans joined with Democrats, as did nearly all Republican senators to validate the election. Some Republicans, like Sens. Tom Cotton and Rand Paul, in doing so offered up odes to the Electoral College and its skew towards Republican-friendly low-population states. While that rankles Democratic ears (and the Electoral College is hardly necessary to maintain the spirit of the Constitution), their arguments exemplify why the minority when it retains power and paths to power stays in the union.

The Constitution also helped establish the norm that the military is not the president’s private army. Dividing national security responsibilities with Congress—in terms of the budget or declaring war–is essential As Federalist No. 69 explained, the “Commander-in-Chief” power “would amount to nothing more than the supreme command and direction of the military … while that of the British king extends to the DECLARING of war and to the RAISING and REGULATING of fleets and armies, all which, by the Constitution under consideration, would appertain to the legislature.”

The president’s war-making powers have gone beyond what the Founders envisioned. And Trump pushed the norm to the brink by sending the military into Portland, Oregon to crack down on protesters. But the flagrant violation of federalist principle proved politically unsustainable and Trump was successfully pressured to withdraw. When those in Trump’s circle starting talking about using martial law to steal the election, an op-ed written by all living former Secretaries of Defense sternly reminded the current Pentagon leadership that they are “bound by oath, law and precedent to facilitate the entry into office of the incoming administration, and to do so wholeheartedly.” That has been heeded. The norm has held.

What we saw yesterday was a mob insurrection, maybe terrorism, but it was not a coup wrought by the American military. There was not a whit of concern the Pentagon would join forces with lowly thugs although the U.S. Capitol Police behavior deserves examination. Nor was this a modern Reichstag fire, giving Trump a pretext to assert emergency powers, because the president does not have unchecked capacity to assert such powers. Despite the violent spectacle, at bottom the riot underscored democracy’s strength, not its weakness. Think of it as a feeble attempt to thwart democracy, egged on by a feeble President on his last gasp of constitutional legitimacy.

Trump has thrown everything a wannabe autocrat could throw at the Constitution. The Constitution won.

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Bill Scher

Bill Scher is the host of the history podcast "When America Worked" and the co-host of bipartisan online show and podcast "The DMZ"