Dear Originalists: Are You Better Off Today than You Were Four Years Ago?

As the Trump Presidency unravels, with the country quite seriously contemplating whether it can endure not another four years but rather another nine days of it, it is worth asking originalists Ronald Reagan’s question: Are you better off today than you were four years ago?

The Capitol that represents the republican essence of constitutional government will, for the foreseeable future, be a fortress protecting American leaders from American seditionists. Its windows are smashed, its halls have been desecrated and, most important, the members of Congress who occupy it endured a several-hour siege in which the president of the United States incited insurrectionists to impede the counting of electoral votes. 

That is where the Trump assault on constitutionalism terminates, but it is not where it began. Every norm of presidential dignity and reserve has been shattered. It no longer makes headlines when a sitting president demands the prosecution of his opponents without even name-checking a law they are supposed to have violated. He has habitually accused his critics of treason—for, to be clear, the act of criticism itself. He has corrupted members of Congress into supporting his subversion of their own institutional will on funding for the border wall. He sent lawyers into court to argue that, no, he really meant it when he said he could shoot someone in the middle of Fifth Avenue without consequences. 

When the voters repudiated him, he tried to repudiate them too, first in dozens of lawsuits and finally, the hell with it, by cutting out the middlemen in robes and sending a mob of his supporters to the Capitol while members of Congress counted electoral ballots inside. As they rampaged indoors and forced a temporary suspension of the tally of Trump’s defeat, the president fiddled in the White House.

Are originalists better off? There seems only one way to answer that we are: the judges. They do weigh heavily on the other side of the scale. There are many, they have largely been of high quality, and the attempt to overturn the election allowed several to prove their independence. 

The problem is this: The judges outweigh the rest only if the oath to “preserve, protect and defend the Constitution of the United States” applies less to the president’s conduct of his or her own office than to his or her nominees to another branch of government. That is a desiccated reading of originalism according to which political players play while lawyers supervise the Constitution from across the street. 

That is unsustainable. It inflates the role of judges even as it builds constitutionalism on a fragile foundation. And—this is key—it is not the original design of the Constitution. By outsourcing the Constitution to judges, originalists have taken a decidedly non-originalist turn. The Constitution itself assumes each federal official is responsible for upholding the regime. They do so not merely in dramatic moments of legislation or presidential decision but also in the daily conduct of their offices. True, presidents and senators come and go while judges stay. But the precedents set by presidential and legislative behavior endure too. To be an originalist president is ultimately to conduct the presidency in a manner consistent with the original meaning of Article II.

It is outrageous that it took a literal attack on the first branch of government to spur it, but there are signs that the real service Trump may have done for originalism is awakening Congress. By outward indications, President-Elect Biden is unenthusiastic about impeaching Trump. The House is proceeding anyway. Good. They should proceed more quickly, without waiting for the vice president to invoke the 25th Amendment.

If Trump is to have an originalist legacy, let it be a resurrection of Congress’ powers to assert itself, by itself. And let that legacy be remembered alongside a cautionary tale for originalists: The Constitution is a political document. It is the responsibility of all officeholders and all citizens. Trading that for a mess of judges is a fool’s bargain. It is also a non-originalist one.

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