Posted on January 18, 2021



It's Alive!

Is the Constitution making a comeback?


Daniel Clark



When liberals refer to the Constitution of the United States as a living document, what they're saying is that its meaning changes spontaneously over time without having to go through the prescribed amendment process. We are now watching that argument be utterly refuted, as our Constitution refuses to bend to the wishes of the individual interpreter. Ironically, it is proving that it's alive, as in simply not dead, to the dismay of those who embrace the "living Constitution" paradigm.

In the waning weeks of the Trump administration, a fissure developed at its uppermost levels when President Trump instructed Mike Pence to disallow the electoral votes from those states whose election results had been disputed. The vice president refused to do so, for the refreshingly sane reason that the Constitution did not empower him to do any such thing. The Twelfth Amendment says the president of the Senate (which is the vice president, when present), "shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted." Nothing about this is optional.

Trump and the legal advisors who assured him this could be done cannot possibly have believed their own argument. Had they followed their imaginary scenario through to its conclusion, they would have realized that such a conspicuous conflict of interest would never have survived the open debate of the constitutional amendment process. Not only would the vice president have a partisan motive to maintain perpetual one-party rule, but the potential for personal aggrandizement could not be more obvious. Al Gore could have denied Florida's electoral votes in January of 2001, preventing George W. Bush from taking office, and the Republicans would have been powerless to stop him.

There's nothing in the Twelfth Amendment that compels the participation of the vice president in the process. Had Pence refused to count certain electoral votes, he would no longer have been acting as president of the Senate, and the count would have continued under the direction of the president pro tempore. What else was the veep to do, shackle himself to the podium and dare the Capitol police to remove him?

In the aftermath of the Capitol riot, House Democrats passed a nonbinding resolution calling on Pence to remove Trump from office by invoking the Twenty-Fifth Amendment. Where have so many people suddenly gotten the idea that the vice president, of all people, wields absolute, extraconstitutional powers?

Once again, Pence has proven to be a pillar of stability against the competing lunacies that swirl within the beltway. Upon rejecting this demand, he explained that the process described in the amendment is not meant to be used punitively, and he's right. Section 4 requires the vice president and a majority of the cabinet to transmit to Congress "their written declaration that the President is unable to discharge the powers and duties of his office." This is meant for a case in which the president has literally been incapacitated, not just in which his judgment has been called into question.

All the president would have to do to nullify this action is send his own statement to Congress asserting his continued ability to discharge his powers and duties. A two-thirds majority vote in each house of Congress would then be needed to secure his removal. The extreme unlikelihood of this is not accidental. The Twenty-Fifth Amendment is not, and was never meant to be, a license to mutiny.

Perhaps the dumbest affront to the Constitution so far in 2021 is the Democrats' expectations for their eleventh-hour, drive-through impeachment of President Trump. There's nothing constitutionally wrong with their having impeached him, since he was still in office at the time, but they already knew that the Senate would remain in recess until the day of Joe Biden's inauguration. Why bother with an impeachment trial for a president won't even be there when it's over?

Article I Section 3 of the Constitution allows the sentencing of an impeached president to include "disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States." The Democrats aim to use the impeachment to prohibit Trump from running for president again in 2024. What's standing in their way is Article II Section 4, which says that he "shall" be removed from office upon conviction in his impeachment trial.

There's that confounded s-word again, establishing that the rules are not arbitrary. If Trump has already left the presidency, the Democrats are unable to do the one thing they must do upon conviction. Therefore, there can be no conviction upon which they may tack on the addition penalty of future disqualification. This constitutional reality has already got them floating a Plan B, by which they would forbid Trump from running again by declaring him to have engaged in an act of insurrection or rebellion, in accordance with the Fourteenth Amendment. If they find that to be a comparatively viable option, their plan to convict a former president in absentia has already been defeated.

Based on the events of 2020, it may be easy to adopt the perception that our Constitution is dead, the iconoclasts have won, and America is spiraling toward oblivion. To put it mildly, all has not gone well so far in 2021, either. Where the Constitution is concerned, however, the early results are encouraging. It is being demonstrated before everyone's eyes that the Constitution has a real-world presence that cannot simply be redefined away by clever wordplay and poststructuralist sophistry. Otherwise, it would not now be thwarting the whimsical power plays of political leaders who would like to rewrite the rules on a day-to-day basis.

But that's not the half of it. National conversations are taking place about the actual language of the Constitution, who put it there and why, whether it would be a good idea to change it, and what is necessary to accomplish that. People are looking up various articles and amendments who otherwise might never have felt inclined to do so. Not only is the document not outdated, but it is now presenting itself as our most effective tool to combat the chaos that has engulfed us. That realization cannot help but engender a greater appreciation for the wisdom behind our Constitution, and the genius of the invention that is the United States of America.



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