How in the world does a narcissistic wannabe authoritarian get away with inciting his followers to attack the seat of his own government? The answer to that question is first and foremost that well over 80 percent of Republican Senators will stand behind Donald Trump no matter what. Forget about shooting someone in the middle of Fifth Avenue. Trump wouldn’t lose Republican support in Congress if he himself blew up the nation’s capitol … while they were inside it.
There’s more blame than just the 43 Republicans who voted to acquit the former president in his second impeachment trial. Sure, you could cast some blame toward Nancy Pelosi for waiting a week to hold the impeachment hearing in the House. And you can puzzle over the Democrats’ odd procedural move yesterday to vote to call witnesses then never actually doing so. But another place we should cast blame is a place people don’t like to point fingers — at the nation’s founding document itself, the Constitution.
When I was in law school, my constitutional law professor started the course by telling us to “disabuse yourself of the notion of the perfect constitution.” Now that I’m a constitutional law professor myself, I always start my introductory course telling my students the same thing. “The Constitution has done great things,” I say, “but don’t forget that it was and still is a deeply flawed document.”
I say this not only to my students but whenever the topic comes up in conversation. And usually people are surprised. “You teach the Constitution,” they respond. “How can you say that about our founding document?”
Well just look at the Constitution’s role in what happened this past week. Even though only 57 Senators voted to impeach Donald Trump, they represent 62 percent of Americans. That’s still short of the two-thirds required to convict, but if the Senate represented people rather than states, we would have been that much closer to a conviction. However, Article I, section 3 of the Constitution gives us this system, requiring two Senators per state no matter how populous that state is. Showing how important this system was to the Constitution’s drafters, it is one of only two parts of the Constitution that Article V says cannot be amended.
What might have gotten us to the necessary two-thirds is if the various United States territories and the District of Columbia had representation in the Senate. Combined, D.C. and the American territories (Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, and the Northern Mariana Islands) have almost 5 million people, and even though they are Americans, none of them has representation in the Senate. The Constitution permits these unrepresented territories and specifically gives D.C. electors for choosing a President … but no Senators. Without representation in the Senate, we witnessed the complete unjust sight this week of having House Delegate Stacey Plaskett from the Virgin Islands prosecute the case against Trump even though she has no vote in the House and the people she represents have no representation whatsoever in the Senate. The Constitution not only entrenches an imbalance of power in the Senate but also disenfranchises these millions of Americans, Americans who are overwhelmingly people of color.
But wait, there’s more! The Capitol Riot insurrection on January 6th took place because Trump was able to convince his supporters of the bald-faced lie that the razor close vote in a few key states really went his way. This argument was relevant only because of the unrepresentative way the Constitution decides who wins President; otherwise, tens of thousands of votes would be irrelevant compared to the over seven million votes Joe Biden won the popular vote by. In every other democracy, that number would decide the election and the close votes in Georgia, Wisconsin, Nevada, and Arizona would be irrelevant.
However, as we all know, in the United States, we have the electoral college. Article II, section 1 of the Constitution creates a system that avoids direct election of the President and instead gives electors organized by state the power to decide who is President. As a result, Democrats have won the popular vote in five of the last six presidential elections, but have only won three of them (the only Republican to win the popular vote this century was George W. Bush in 2004). We can thank the Constitution for creating this undemocratic system that allowed Trump to rile up his supporters over tens of thousands of votes rather than having to focus on over seven million.
Yet another part of the Constitution gave Trump the perfect opportunity to piece his lies together. The 20th Amendment creates a two-and-a-half month lame duck period, which Trump used to methodically stack lie upon lie that ultimately convinced enough of his supporters to storm Congress. The Twentieth Amendment, ratified in 1933, actually moved the date of the start of the Presidential term up, to January 20th from March 4th, the original start date. Because life had changed between 1787 and 1933, it was now more feasible for the transition to take place earlier. Even greater changes have taken place between 1933 and now, making transportation and communication even faster and easier. Other countries have an almost immediate turnover in comparison. But, here in America, this multi-month lame-duck period remains because the Twentieth Amendment hasn’t been changed. As a result, Trump was able to take this extended period and hammer home his claims of election fraud that had no basis in reality. Without this much time, his claims might not have had enough time to sink in.
Put it all together, and here’s what the Constitution contributed to yesterday’s acquittal — a candidate who lost by over seven million votes and had an extended period of time to convince his supporters that just tens of thousands of votes mattered was able to argue his case to an unrepresentative body of jurors that was heavily tilted in his favor.
Our Constitution establishes these rules. If this situation doesn’t seem right to you, don’t just fret about the Republicans responsible for acquitting America’s worst President for one of the worst political crimes in this country’s history. They certainly deserve a healthy dose of blame, but we should also be pointing a finger another place it belongs — our flawed Constitution itself.
David S. Cohen is a professor of law at the Drexel University Thomas R. Kline School of Law.