Cheney, Harris, and the Constitution

Liz Cheney has been arguing that Donald Trump poses a threat to the Constitution that outweighs her disagreements about policy with Kamala Harris. Hence her support for Harris, and hence her view that conservatives should join her in that support.

She does not need to convince me about Trump’s unfitness for office. The former president has, among other things, called for terminating provisions of the Constitution in order to put himself back in power. I have maintained, however, that her argument for Harris is flawed because Harris also poses a threat to the Constitution; that someone with Cheney’s conservative record ought to be able to see this threat clearly; that someone who agrees with her critique of Trump has the option of writing someone in, voting for a third party, or leaving the presidential line on the ballot blank rather than voting for Harris; and that not addressing the foregoing points makes her advocacy of Harris less persuasive to conservatives than it might otherwise be.

Over on X.com, the first point has received vigorous pushback, much of it centering on the prospect of Court-packing by Harris and the Democrats. Before turning to Court-packing, it should be noted that other Democratic proposals regarding the courts are arguably even worse. Senate Democratic Leader Chuck Schumer (D., N.Y.) and 36 of his colleagues have introduced the “No Kings Act,” which tries to order the courts to consider criminal cases against the president and vice president without letting them invoke constitutional defenses, exempts itself from constitutional review by the Supreme Court, and demands that lower courts give it the benefit of the doubt.

Ten Senate Democrats, including a majority of the Democrats on the Judiciary Committee, have endorsed a bill that would take voting rights away from one Republican-appointed justice immediately and from two more within the following four years. The lead sponsor has interpreted Harris’s favorable comments as tacit support and predicted that the legislation would be “virtually certain” to pass if Democrats sweep this fall.

These are radical proposals that Democrats would have avoided until quite recently.

Harris supporters could try allaying concerns about them by arguing that a President Harris would be unlikely to follow through on them or to succeed if she did, or that they are in truth excellent and much-needed proposals. But Cheney has not made any of these arguments, and they would involve some difficulty for her. To argue that the Senate would stop Harris, for example, would require looking over the fact that she herself is trying to get Texans to replace Ted Cruz with a Democrat. Several of them would also require backing down on her core claim: She would have to say that Harris is a lesser threat to the Constitution rather than she is a champion of it.

But leave aside, for a moment, the Court “reforms” that Democrats want. Even long-standing features of Democratic politics ought to raise constitutional alarms for Cheney. She believes, or has in the past said, that the Second Amendment protects a robust individual right to own guns and that the 14th Amendment protects the right to life of unborn children. Democratic presidents are sure to nominate justices who would trample on both rights. Her more general views about the Democratic and Republican approaches to judging and the Constitution were, in September 2020, as follows:

[Donald Trump] has named judges that believe in the Constitution, that believe in the adherence to the Constitution, that know that judges are supposed to interpret the law and not make law. . . .

The more that the Democrats act as though they are willing to burn the whole place down, that they do not believe in the Constitution, the more threats that they make about court packing or trying to somehow abolish the Electoral College, the more the American people are just sick of it.

The unavoidable implication is that Cheney believed that Democratic Supreme Court appointees don’t adhere to the Constitution. A lot of Cheney’s new fans do not hold any of the views about the Constitution that she has endorsed. If she no longer does, she ought to say so and say why.

Back to Court-packing. My respondents insisted, variously, that Court-packing can’t possibly happen, happens all the time, and can’t happen soon enough. One unifying point among them was bafflement at my suggestion that a course of action can be formally consistent with the Constitution while also badly undermining it.

If we weren’t in the middle of a presidential campaign, I’d be baffled by the bafflement. Of course it’s possible to use constitutional means to subvert the Constitution. A constitutional amendment to repeal the Bill of Rights would not violate the Constitution provided it were advanced in rigorous adherence to Article V. Obviously, though, such an amendment would be a threat to our constitutional order.

So is Court-packing. And this suggestion is not some weird new talking point of people trying to run cover for Donald Trump. It was shown to be the overwhelming political consensus of the country during a famous episode in our history. When the Senate Committee on the Judiciary, run by Democrats, rebuffed FDR’s Court-packing plan in 1937, it did not confine itself to the point that the proposal contained a mandatory retirement age for justices that contradicted the letter of the Constitution. The proposal was unacceptable even aside from that provision:

The theory of the bill is in direct violation of the spirit of the American Constitution and its employment would permit alteration of the Constitution without the people’s consent or approval; it undermines the protection our constitutional system gives to minorities and is subversive of the rights of individuals. . . .

Can reasonable men by any possibility differ about the constitutional impropriety of such a course? . . .

Under the form of the Constitution it seeks to do that which is unconstitutional.

Its ultimate operation would be to make this Government one of men rather than one of law, and its practical operation would be to make the Constitution what the executive or legislative branches of the Government choose to say it is— an interpretation to be changed with each change of administration. . . .

It is a measure which should be so emphatically rejected that its parallel will never again be presented to the free representatives of the free people of America (emphasis added).

That should have been the last word, and I will let it be here.