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When we talk about “constitutional crises,” that usually involves two of three branches of the government, the legislature and the executive. But there’s another constitutional crisis, or “constitutional failure” as American University’s Chris Edelson prefers to call it, one that’s occurring so slowly most don’t see it.

It’s natural that we focus on the first. It poses an immediate threat to our small-r republican order. White House Counsel Pat Cipollone said Wednesday that the president would deny all requests from the House Judiciary Committee. Cipollone even said, according to the Post, that the “Congress is not a law enforcement body and does not have a legitimate purpose to investigate the questions it is pursuing.”

Let’s be clear about what this means. That’s not just thwarting the American people’s sovereignty. That’s refusing to recognize the American people’s sovereignty at all. If the Congress does not have “standing” in conducting oversight of the executive branch, no one does. If no one does, the president is unaccountable. That’s what you’d expect after a military coup. That, if the Democrats permit it, is “constitutional failure.”

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Russia sabotaged our republic by amplifying the GOP’s “constitutional revolution.”

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But even if the Democrats permit it, this kind of failure will last only as long as this presidency does. It’s the second kind of failure that has been with us for decades and will be with us for just as long no matter what the Democrats do. It’s the takeover of the legislative and executive by the judicial branch. As Yale Law’s Jack Balkin put it in 2001, it’s a slow-motion “constitutional revolution” few know is happening at all.

In handing the presidency to George W. Bush, the court used “the power of judicial review to secure control of another branch of government that would, in turn, help keep their constitutional revolution going. It is one thing to entrench one’s constitutional principles through a series of precedents. It is quite another to entrench one’s ideological allies by directing the outcome of a presidential election” (italics mine).

Bush v Gore escalated efforts already underway to create a legal and political order in which the will of the majority is boxed in according to conditions of race, class and gender. Call it “intersectional apartheid” if you like. Balkin wrote the five justices “installed a President who would appoint their colleagues and successors and would stock the federal judiciary with like-minded conservatives.” These judges have since played key roles in eroding voting rights, legalizing corruption, assaulting non-Christian religious freedom and, soon enough, neutering federal abortion rights.

Missouri’s Senate is the latest body to pass a bill so extreme it practically outlaws abortion. It follows similar bills rubber-stamped in Ohio, Alabama and other GOP-run states. This rash of legislation is the result of years of effort by Republican activists to chip away at Roe v Wade. That effort is close to peaking with Justice Brett Kavanaugh now sitting on the high court. His confirmation told activists now’s the time to ban abortion in effect. Such laws will be appealed likely to the US Supreme Court, where they will be upheld. Roe won’t be struck down, but the impact will be the same.

Kavanaugh did not rise on his own. He rose because a hostile foreign power sought various and sundry ways to sabotage our democratic republic, and found that it could do just that by amplifying a “constitutional revolution” already underway. By interfering with the 2016 election in “sweeping and systematic fashion,” according to Special Counsel Robert Mueller, Russia’s mafia-state not only helped Donald Trump win but it empowered the least democratic branch of the US government that will soon likely approve of turning women in GOP-led states into second-class citizens.

It will get worse. As Jonathan Bernstein has observed, the Senate is no longer a legislating body but a factory churning out appointees to the federal judiciary. Literally, the Senate has done little else. The idea is to pack the courts with hundreds of “like-minded conservatives” in a rear-guard action to defend against the rising power of a minority-majority set to emerge at some point in the middle of this century. The Republican Party has little incentive to broaden its appeal as long as the Electoral College and federal judiciary are on its side. It does, however, have the motive, means and opportunity to contain majority will by entrenching minority rule for years.

Beating Trump won’t change that. If the Democrats do not win the Senate in 2020, the Republicans will likely double down on this rear-guard action by shutting down all Democratic appointments to the federal judiciary. If Mitch McConnell had no qualms about watching while Kremlin operatives sabotaged Hillary Clinton’s presidential campaign, he won’t have any about undercutting the next Democratic president.

“Constitutional failure” this truly is.

—John Stoehr

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*****Get 50% Off*****

Today’s Editorial Board goes out to everyone.

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Many thanks! —JS

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