Department of constitutional breakdown: Something is happening but you don’t know what it is….

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Michael Cohen: Fixer turned accuser

“Given my experience working for Mr. Trump, I fear that if he loses the election in 2020 that there will never be a peaceful transition of power.”

Thus spake Michael Cohen at Wednesday’s hearing before the House oversight committee.  Over at TRNN, Paul Jay took this to mean that fascism is bearing down on us yet again.  This fell wide of the mark, however, for at least three reasons.  One is that Trump, despite certain Mussolini-esque tendencies, is far from a genuine fascist, as Dylan Rileyrecently showed in the New Left Review.  Another is that the man’s isolation is so complete in Washington that it’s hard to imagine the military or intelligence agencies following him into the trenches should he attempt something crazy like overturning a presidential election.  The third reason is that authoritarianism is fully bipartisan at this point, meaning that it is no less likely to come from the anti-Trump forces at this point as from Donald himself.

Nonetheless, Jay is in the right ballpark, more or less.  In May 2017, acting CIA Director Andrew McCabe and Deputy Attorney General Rod Rosenstein held a series of crisis meetings following the firing of Jim Comey in which they discussed using the Twenty-fifth Amendment to remove Trump from office – an act that amounted to an incipient coup d’état since it involved an obvious misuse of an amendment designed to deal with a president who is “unable to discharge the powers and duties of his office,” not one who, in the opinion of the FBI, is all too capable of turning the country over to the Russians.

Then, just two weeks ago, Trump declared a state of emergency in order to build his Mexican wall, another incipient or quasi-coup since it marked the first time such powers have been used to short-circuit Congress’s constitutional control over the purse strings.  If we include Cohen’s warning that Trump will not go gently into that good night in 2020, then it’s clear that the system’s ability to insure a democratic transition is more and more in doubt.

What does it all mean? Simply that the ancient machinery is experiencing something akin to cardiac arrest according to the people who live under its aegis.  The breakdown has been in the works at least since Watergate, the scandal that saw the removal of a president of pronounced dictatorial tendencies without any attempt to repair the constitutional machinery that allowed him to accumulate such powers in the first place.

In fact, Watergate saw the opposite, a quasi-religious celebration of the Constitution as a kind of divine protector.  “My faith in the Constitution is whole; it is complete; it is total,” sang Congresswoman Barbara Jordan.  “I am not going to sit here and be an idle spectator to the diminution, the subversion, the destruction of the Constitution.” She was a defender of the faith sallying forth in the name of the sacred scroll.

The results were all too predictable: an upsurge in constitutional piety even as a dangerous logjam continued to pile up on Capitol Hill.  All but destroyed by congressional infighting, Jimmy Carter gave way to Ronald Reagan, a thoroughgoing reactionary who raised political fantasy to an art form.  “He is a Prospero of American memories, a magician who carries a bright, ideal America like a holograph in his mind and projects its image in the air,” gushed Time Magazine in its Fourth of July issue in 1986.  “…Reagan, master illusionist, is himself a kind of American dream.  Looking at his genial, crinkly face prompts a sense of wonder: How does he pull it off?”  The constitutional machinery was so decrepit that magic was the only thing that would make it work.  The Bush I and Clinton administrations ushered in an era of non-stop wars: the invasion of Panama in December 1989, the first Persian Gulf war in August 1990, and then a dozen years of intermittent bombing raids on Iraq starting in 1991.  Bush II upped the ante by invading Afghanistan and Iraq, while Barack Obama, deferring to “Queen of Chaos” Hillary Clinton and her followers, upped it even more by unleashing death and destruction on Libya, Syria, Yemen, and the Ukraine.  The atmosphere on Capitol Hill meanwhile grew more and more poisonous as Newt Gingrich’s back-to-back government shutdowns in 1995-96 gave way to wars over Monica Lewinsky’s little blue dress, the battle over Barack Obama’s birth certificate, the Benghazi hearings, Russiagate, and now Michael Cohen.

Warfare abroad led warfare at home.  Imperial overstretch in places like eastern Europe and the Middle East became bound up with constitutional collapse at the center.  While Congress remained violence-free, the story was different out in the hinterlands as Trump campaign rallies regularly erupted in fighting and clashes between anti-fascists and ultra-rightists in Charlottesville in August 2017 led to more than thirty injuries and the murder of a 32-year-old socialist named Heather Heyer.

What does the future hold?  After four decades or so, the answer is obvious: an acceleration of the crisis until some sort of breaking point is reached.  This is the significance of Cohen’s statement last week: people know a crisis is coming, they can feel it in their bones, but there’s nothing they can do to head it off.

The situation is so similar to the run-up to the Civil War that even the Washington Post has taken notice.  Thanks to the three-fifths clause and a southern-controlled Senate, a surprisingly small number of large-scale planters – nationwide, just 338 planters owned 250 or more slaves[1]– were able to leverage their power so as to acquire a veto over the federal government.  Democracy was blocked, yet there was nothing that the democratic majority could do.  “We the people” couldn’t amend the Constitution to eliminate slavery because slave states controlled both houses of Congress, and they couldn’t reinterpret it because southerners dominated the federal judiciary.  Their sole remaining option was to attack the problem extra-constitutionally via civil war, which is what they did.

Today, the US is seeing a similar efflorescence of minority rule.  Gerrymandering and voter suppression have added to Republican clout in the House while widening state population discrepancies have resulted in a Senate that is ever more lopsided.  Thanks to equal state representation, the 53 Republicans who control the upper house represent just 48 percent of the population, while the 41 Republican senators capable of stopping a bill in its tracks under current filibuster rules account for as little as twenty.  The Electoral College triples the weight of lily-white bastions like Wyoming and the Dakotas, while the two-thirds/three-fourths rule in Article V means that thirteen states representing just 4.4 percent of the population can veto any constitutional amendment sought by the remaining 95.6.

Those numbers are bound to worsen in the coming decades as state population differentials grow.  According to projections by the University of Virginia’s Demographics Research Group, the ratio between the most and least populous states, currently 68 to one, will hit 79 to one by the year 2040, while instead of 4.4 percent of the population, the thirteen states capable of vetoing a constitutional amendment will account for as little as 4.2.  Democracy will shrink, yet, once again, there will be nothing that the huddled masses living in multi-racial giants like California or New York will be able to do within the existing framework.  Their only option, rather, is to bust free by creating an entirely new framework, not in accordance with the existing rules but according to new rules they formulate in the course of their revolt.

The 1860s provides a hint of how this would work.  The Thirteenth, Fourteenth, and Fifteenth Amendments, ratified between 1864 and 1870, not only abolished slavery and guaranteed the right to vote irrespective of “race, color, or previous condition of servitude,” but established a new relationship between  the individual, the states, and the federal government.  They tightened the bonds so that a loose confederation turned into something approaching a modern nation-state.  No less importantly, the amendments were not ratified according to the rules set forth in Article V, but, rather, were “force bills” that Radical Republicans imposed on the ex-Confederate states, literally at a gunpoint in one case, i.e. Tennessee, as a condition of their readmission to the Union.

The process didn’t go far enough, which is why southern racists and northern conservatives succeeded in eviscerating the amendments so as to thrust blacks back into a state of semi-servitude and impose a dictatorship of capital on the nation as a whole.  But at least it tells us something about a how a revolutionary process liberates itself from existing rules and regulations in the process of creating a new order.  Led by the working class, Americans will have to do something similar in response to the present impasse, although naturally it will have to be far more radical and sweeping.

 

 

 

 

 

[1]William Kauffman Scarborough, Masters of the Big House: Elite Planters of Mid-Nineteenth-Century South(Baton Rouge: Louisiana State Univ. Press, 2003), 6.

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