The Supreme Court declined to take up the case from Pennsylvania. But the Attorney General of Texas, Ken Paxton, has now asked the Court to take another case. Over at The Bulwark, Kim Wehle has an excellent take on the latest effort to overturn the election: “Paxton is asking five unelected justices with jobs for life to cancel the millions of votes legitimately cast in four states, and tell the legislatures in those states to give the electors to Trump.” Like the Pennsylvania suit, it’s not going to work. But asking whether it’s going to work is the wrong question. This is an ongoing effort to overturn a free and fair election; it’s an assault on the constitutional system. While it’s unlikely to prevail as a matter of law, it may well be working as a matter of politics. Another piece at The Bulwark speaks to this: “The Enemies of Democracy.” Large numbers of Republicans and conservatives are lining up to take aim at the constitutional system for Trump. Their bad faith is breathtaking.
Yet Jeffrey Rosen’s new essay in The Atlantic might give us some reason to hope. In asking, “What if We Wrote the Constitution Today?” Rosen illuminates important differences between conservatives, progressives, and libertarians, but he also illuminates what we continue to have in common. This is the sort of work the National Constitutional Center does every day; it’s the sort of work that furthers constitutional government.
Still, I suspect we’re underestimating the damage Republicans are currently doing on this front. If the overwhelming majority of the Republican Party—and the conservatives egging its worst players on—are okay with a concerted effort to undermine faith in our democratic process, why do we think they’ll simply return to normal on January 20th, 2021?