KYOTO – Since before he was elected, my view on Donald Trump was this: Whether he is a racist moron or a misunderstood, brilliant master of 3D chess, if him becoming president is what it takes for enough Americans to realize how profoundly defective their system of government is, so be it.
The latest outrage was him wanting to eliminate birthright citizenship through executive action. This is absurd of course; the words of the 14th Amendment are clear.
That said, I also thought the U.S. Constitution similarly clear when it came to depriving Americans of their lives without due process, which the president before Trump decided was OK when it came to executing bothersome citizens abroad by missile.
And no, that was not intended as a “what about her emails” Republican-versus-Democratic riposte has become a bad parody of right-wing reactions to criticism of Trump.
My point is that who is president — or even voting — doesn’t seem to matter any more when it comes to addressing America’s endemic problems. Why would it? Where the vote of the average person hasn’t been stripped, diluted or sabotaged by whatever partisan tools are available, they only matter to the extent casting them facilitates a form of governance essentially based on what people in power can get away with.
The final arbitrator on that subject is the U.S. Supreme Court and Americans have become largely numb to — no, accepting of — important decisions about how they live being made by a bare majority of ideologically vetted, politically appointed judicial technocrats on the Supreme Court; numb to judicial confirmation hearings becoming political theater on par with legislative debates, because that is essentially what they are — except Americans don’t even know what the legislation will be.
Here is the terrible truth: The U.S. Constitution is a failure. It was a failure back when the Civil War killed more than 600,000 people and is arguably a failure in having failed to prevent America involvement in countless other undeclared wars since. But it is also a failure in terms of its original goals. This is not a political statement but one of objective fact. America’s Constitution was designed for the express purpose of preventing the federal government from becoming an intrusive behemoth equipped with a vast permanent military. That being precisely the form of federal government Americans now have — their Constitution provides little useful guidance as to how it should operate.
Trump repealing birthright citizenship would be crazily unconstitutional. But so what? Would it be more crazily unconstitutional than decades of “separate but equal”? Or sending Americans of Japanese ancestry to detention camps? Whether he succeeds or fails, would whatever jurisprudence Trump’s assault on the 14th Amendment generate render the Constitution any less coherent than it already is to the average American?
The most basic problem in American political discourse is not that too many Americans are racists, conservative, progressive, liberal or whatever. It is that they lack a common acceptance of what their nation’s charter means, beyond quasi-religious platitude. Whether they ever shared such an understanding is debatable, perhaps, but it seems clear that they do not now, at least not in a way they are allowed to articulate politically.
In the American system, what the federal government can do is limited and logically must be understood before talking about what it should do. The latter discussion is impossible because what the government can do has been rendered incomprehensible through a mishmash of over two centuries of Supreme Court rulings that render it incomprehensible to most people.
For Congress to outlaw the nationwide manufacture, sale and importation of alcohol, the 18th Amendment had to be passed in 1919. Even then, it was not illegal to possess booze during Prohibition. Legislative confiscation of wine cellars and basements full of whisky would probably have been beyond the pale as an exercise of government power back then.
Today, by contrast, Congress can and does ban the possession of even small amounts of marijuana and continues to do so even in states that have legalized the drug. What changed? Not the text of the Constitution. Instead, America’s judicial overlords decided the Constitution meant something different than what it did in the past, resulting in a vast expansion of federal power.
Now it is accepted that Congress can force people to buy a product — health insurance. Leaving aside whether Congress should do something about health care, that it can now do so in this way represents an exercise of federal powers that would have left the Founding Fathers gasping for air. It is in fact an exercise of coercive state power that the government of Japan would struggle to justify, despite being unburdened with American-style pretensions of “limited” national government.
My views are shaped in part by being a resident of Guam. According to the United Nations it is still a U.S. colony; probably a fair assessment given 30 percent of the island is occupied by bases for a military whose commander in chief its people play no part in choosing. Whatever constitutional norms the average American might consider sacred and inviolable — birthright citizenship, trial by jury, separation of powers, no taxation without representation, you name it — has at one time or another been (in some cases, is still being) bypassed or ignored in the governance of U.S. territories by the federal government, all with the blessing of the U.S. Supreme Court. Nothing Trump could do is likely to be anything new from the perspective of U.S. territories.
Which brings us back to the midterm elections: The depressing thing about both the 2016 election and the midterms was the obsession with getting the “right” people into office. Even if the “right” person becomes president next time, he or she will still be the “wrong” person to many Americans — perhaps the majority of them, thanks to the Electoral College system. And the risk of the “wrong” person getting in again after that, and of the harm he or she can accomplish, will be unchanged. The levers of power will be the same, and what the people who exercise power can get away with will still be an elastic notion decided by unaccountable judges who cling to power into their 80s or 90s.
The even more depressing thing about all this is that the vast majority of Americans are probably in agreement on some very basic principles: representative democracy; the right to vote; respect for property rights; freedom of speech and assembly; privacy and the right to be left alone. Hot-button issues like gun control, standing for the anthem, immigration and abortion are used, often intentionally, it seems, to foster divisiveness when most Americans could probably gather in a room and agree on some fundamental notions — truths they hold self-evident, you might say — that perhaps need to be restated because too much of their government seems to have forgotten them.
The real long-term problem faced by America is not Trump and whatever absurd thing he wants to do next. It is the crumbling legitimacy of the entire American system of government of which he is just a symptom. Perhaps voting still does matter in America, but the real work for Americans — the truly participatory exercise far more significant than voting — lies in fixing or replacing a broken Constitution. That can be done by Americans themselves, without Congress, without the Supreme Court and without the president. Through a new Constitution, America could be great again in a truly meaningful sense, a model of democratic renewal for the whole world. The world seems to need such a model, now more than ever.
Colin P. A. Jones is a professor at Doshisha Law School in Kyoto.
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