Constitution Day, Trump, Harris

Introduction. Thanks to Professor Mock for inviting me to speak at this Constitution Day forum. I’m going to address the potential impact of the 2024 presidential election on the Constitution and Supreme Court, and I’m going to speak about the consequences of both a Trump and a Harris win

1. If Trump Wins. If Trump wins, 236 years of constitutional order will come to an end on inauguration day. The massive concentration of power in Trump’s White House will start that day with immigration roundups to begin the process of deporting 15-20 million undocumented immigrants without benefit of due process. That’s most of what Trump meant when he said he would be a “dictator” on day one. Trump has also promised to engage in a large-scale campaign to investigate, prosecute, imprison, and silence his critics and opponents, including much of the Biden administration, large segments of the media, major Democratic figures like Nancy Pelosi, conservative critics like Liz Cheney, and state elections officials and workers. Pretty much anybody who has been prominent in opposing Trump would be subject to prosecution. Even without considering Project 2025, that would be the end of the Constitutional order.

If Trump wins, it’s the end of the Constitution as we know it, but that doesn’t mean that a Harris victory would stabilize the Constitutional Order

• If Kamala Harris wins. If Harris wins, there’s a decent chance of the Democrats holding the Senate and a somewhat higher chance of Democrats changing the rules surrounding the Supreme Court. Biden has already proposed Court reforms including term limits of 18 years but that’s highly unlikely because Article III provides justification for the corrupt and increasingly lawless Court to overturn them. The result would be that Harris would be under considerable pressure to expand the Court from 9 members to 13 with all the new members being 40 year old lib/left types. Democratic constituencies want to see the gutting of the Voting Rights Act, overturning of Roe v Wade, the Trump immunity decision, expansion of gun rights, and other major decisions by the current Court reversed, and are almost as eager to see the Senate filibuster overturned to facilitate Supreme Court expansion. Generally speaking, Democrats have become much more of a “do something” party since 2016 and it’s about 60-40 that President Harris would seek Court expansion. I would argue that expanding the Court is not a radical a departure in itself but the outcome of a liberal court majority would also be that the same MAGA pressure currently on electoral systems, education, and the military would be extended to the Supreme Court and we would end up in a situation in which a Supreme Court’s understanding of the constitutional order would be more liberal and mainstream but would further stimulate right-wing determination to overturn the Constitutional Republic altogether.

• My curve ball is public opinion. Diving further into the topic. Since the early 2000’s, polling has shown a dramatic change in American values. That’s most notably seen in relation to gay marriage with support for gay marriage now at 69% in a 2024 Gallup poll where only 12% supported gay marriage in 1989 compared to 84% who opposed. The same can be seen for other social issues. Support for abortion rights is 64% according to a recent poll with 35% in opposition. Support for banning assault weapons is at 69% and support for equal rights for transgender people at 83%.  Free community college, paid family leave, and universal preschool all polled in the 70’s and 80’s when they were part of Biden’s initial BuildBackBetter proposal in 2021. With support for most of these issues around 2-1, the U.S. is evolving into a supermajority multicultural/socially liberal society. It’s also clear that living in a multiracial society where civil rights, feminism, LGBT rights, climate activism, and immigrant inclusion are mainstream and traditional-minded opposition is marginal is intolerable to American conservatives. As a result, the idea of abandoning the constitutional model for an American Republic and instituting the kind of authoritarian rule outlined by the Trump campaign and Project 2025 isn’t just a Trump oddity. It’s something that’s become an imperative for white conservative cultural and political leadership. Of course, those same numbers also create pressure to reform and reshape the interpretation of the Constitution to mirror the multicultural liberalism of a highly diverse mainstream America. The Supreme Court has been conservative dominated since the 70’s or 80’s and a lot of work would need to be done to reinterpret what David Waldstreicher calls “Slavery’s Constitution” in ways that mirror multicultural social liberalism, but it’s time for the judicial left to exercise the same kind of judicial creativity that can be seen in conservative figures like the late Antonin Scalia and Mitch McConnell.

• Final Thought. My final point is that the consequence of a Harris victory without a Senate majority would be the continuation of the long-time stasis in American government and society which itself is subversive of the Constitutional order. But going further into that thought will have to wait for another time.