For the bicentennial anniversary of the creation of the U.S. Constitution, Pulitzer-prize-winning historian Michael Kammen wrote a history of the Constitution titled “A Machine That Would Go of Itself,” which he called a “cultural history.”
That was important because Kammen was less interested in the Constitution itself than in how it has been treated in American culture, including by the famed American poet James Russell Lowell — who, on the first centennial of the Constitutional Convention, had referred to the Constitution as, precisely, “a machine that would go of itself.”
Lowell wasn’t being ironic, but Kammen was, to a degree. By focusing on the “cultural” history of the Constitution, he focuses more on how it has been perceived by each generation, most of which accepted that this document was so finely crafted, with its famous checks and balances, so foolproof, that the Constitution contained, within itself, the magical solution to any problems that might arise within the American experiment in self-government.
But it wasn’t, and it isn’t.
As we approach a general election campaign in which President Donald Trump will either win re-election or lose (or, I fear, something in between), the constitutional “machine that would go of itself” should contain within itself mechanisms to guarantee that the next presidential election will be held, that its outcome will become sufficiently clear, and that all parties will abide by that outcome, either a second term for the current incumbent or a peaceful and timely transfer of power from that incumbent to his duly elected successor.
‘The right to do whatever I want’
But that’s not necessarily the case, at present. The current incumbent is more ignorant of the Constitution than any of his predecessors, and less respectful of it if it happens to get in the way of his wants, needs and ambitions. I doubt he has ever read it, but someone told him that the powers of the executive are laid out in Article II, which led him to state:
“I have an Article 2, where I have the right to do whatever I want as president.”
It’s hard to imagine a more erroneous or ignorant statement about the balance of powers in the Constitution, or, perhaps, a scarier one, considering who said it.
It’s a small leap, or none at all, to argue that a president who thinks he has the power to do whatever he wants could try to cancel the next election if he thought he was in danger of losing, or postpone it until he thought his chances were better, or make bizarre decisions about which parts of which states should have reasonable and/or safe access to the polls on Election Day, or decide for his own powerful self how to resolve any disputes that arise during the counting …
… and, especially, to use those unlimited rights and powers to decide for himself whether he had been voted out of office. And, if he decided, contrary to the best evidence of those who run the elections in the states themselves, that he had been re-elected, to declare himself re-elected based on whatever flimsy disputes are available — and refuse to leave.
It takes people and courts
The Constitution is not a machine that goes of itself. It takes people and courts to interpret and apply it. Despite his ridiculous statement quoted above, the president does not have the constitutional power to decide, on any basis he might devise, whether he has been re-elected, and impose that decision on a nation that has just voted him out.
But he thinks he does, or at least says he does. So, as he falls further and further behind in the polls, I can’t help wondering what will happen if we hold the election, and Trump loses but insists he has won.
He would be entitled to file some lawsuits to dispute it. And appeal to the highest court, which has a Republican-appointed majority and which includes two justices he has himself appointed — although one of them, Neil Gorsuch, joined John Roberts (appointed by George W. Bush) in breaking ranks with the other Republican appointees on a recent case.
But a president who thinks the Constitution gives him “the right to do whatever I want” may not feel obliged to abide even by a court ruling.
The date of the transfer of power to the newly elected president is in the Constitution. It’s Jan. 20, two months after the election. We have never had a president refuse to leave office, but with this president, it’s not that hard to imagine it coming down to this:
It’s Jan. 20, 2021. Joe Biden has been declared the winner. Donald Trump has decided to contest the outcome. The courts have ruled against him but he is still refusing to participate in a peaceful transfer of power.
What happens then? Is it a military question? What would the military do? The chairman and all members of the Joint Chiefs of Staff would be Trump appointees. Do we need to start asking them what they would do, whom they would listen to at noon on Jan. 20, 2021, if Trump is still asserting that the election was rigged against him and stolen from him and he is still president?
That’s all out of my own fevered imagination/paranoia, but smarter people than I are talking about it.
In case you didn’t click through, here’s the top of Striner’s scenario:
Donald Trump is a dangerous authoritarian who is testing how far he can go in the use of armed force for his own political ends.
And a show of force may determine the fate of our democracy a few months from now. If Trump loses the election, we should not expect a peaceful transition in accordance with American traditions. We know what we will get from Donald Trump: a tantrum, followed by defiance. He will call the election a “hoax” and then proceed to put the nation through a crisis that will make the past three years look mild by comparison.
He has talked already of delaying the election and dropped dark hints about how far his powers may extend in a ‘national emergency.’
He is not … normal.
So we should brace ourselves for much more than a delayed or contested election. We need to imagine an end-game without any precedent and figure out now what to do if this scenario becomes a reality next year.