MAGA pronounces Constitution dead

Infallible leaders don't leave much room for the rule of law

In 1882, Frederick Nietzsche wrote, “God is dead.”

As Luke Dunne explained more than a century later, “Nietzsche was not celebrating the death of God; rather, he was warning of the potential consequences of a society without a firm moral foundation. He feared that the loss of traditional religious values could lead to nihilism, a state where life is perceived as devoid of intrinsic meaning or value.”

Now I am hearing that MAGA is proclaiming the Constitution dead, and I have similar concerns about the potential consequences of a society without a firm legal foundation. I fear that the loss of our traditional foundational legal values could lead to anarchy or actual “lawfare.”

Photo by rivage on Unsplash

The belief in lawfare is probably at the root of a lot of MAGA’s post-Constitutionalism. Take Marjorie Taylor Greene (please!). MTG started talking about post-constitutionalism last year after Trump’s indictments and revived the claim after Trump’s felony indictment last week.

To be clear, people like Greene are upset that Trump is being held accountable, not that the rule of law and the Constitution are not being followed. They claim that the US is a banana republic because Trump is being prosecuted, but the truth is the opposite. Political leaders in banana republics are immune to prosecution whatever their crimes. MTG is not upset that the US is a banana republic but that it isn’t.

Donald Trump is a thoroughly corrupting influence. It is obvious by now that the Republican Party will follow wherever he leads, even if it is to a place where political leaders are never held accountable - even if they shoot someone on Fifth Avenue - as long as they are Republican.

It isn’t that MAGA is opposed to lawfare. Don’t forget the Trump rally chant of “lock her up” in 2016 (and the endless and mostly fruitless investigations of the Clintons and Obama prior to that). It’s that they are opposed to holding Trump and his cohorts accountable, even (especially) if they are guilty as charged.

In a bevy of recent statements, Trump has doubled down on seeking revenge against his political opponents. Trump’s words leave no doubt as to his intentions, Dr. Phil’s protestations notwithstanding.

To be clear, I’m fine with holding celebrities and politicians of both parties accountable when they break the law, but that is not what Trump is calling for. He’s calling for persecuting political opponents merely because they are political opponents and without evidence of a crime… which is exactly what Republicans have falsely accused Democrats of doing.

But the post-Constitution talk is not just about keeping Donald Trump out of jail and taking revenge on political opponents. It’s also about implementing the MAGA agenda over the objections of a majority of the country.

The Washington Post recently profiled Russ Vought, head of the Center for Renewing America and a potential chief of staff in a second Trump Administration. Vought wrote an influential essay in 2022 on post-constitutionalism in which he opined that the left had co-opted the Constitution through the legal process and changed it to the point of meaninglessness.

The ironic thing here is that Vought is claiming this at a time when a) we have a very constructionist Supreme Court that has delivered important victories for conservatives and b) the right has jettisoned textual and traditional interpretations of the Constitution to claim things like the power of the vice president to overturn elections.

As with MTG, the problem with Vought isn’t that the courts don’t follow the Constitution but that the Court isn’t delivering as many results as MAGA wants. It’s an outcome-based philosophy of jurisprudence, not a constitutional one.

One example of MAGA’s judicial aims is Vought’s claim in his essay that illegal immigration is an invasion. This is a popular position among many on the anti-immigration right these days, but legally speaking, it’s BS. Just Security took a deep dive into the text, history, and tradition of the immigrants-as-invaders point of view and found there was ample evidence that the Framers rejected the notion that an influx of immigrants could constitute an invasion.

As James Madison bluntly stated, “Invasion is an operation of war. To protect against invasion is an exercise of the power of war.”

The post-Constitution talk is borne of a desire to enact policy by authoritarian means that MAGA has not been able to enact through the ballot box or Congress. It is not a coincidence that this is what Vought and others have accused the left of doing through the courts. They’d like to follow the leftist model with conservative justices but textualism somewhat inoculates against partisan rulings. (And liberal justices are somewhat unfairly maligned. For example, the Supreme Court recently ruled unanimously in favor of the NRA.)

Much of the post-constitution chatter comes from Christian Nationalists like Vought and Greene. I have discussed Christian Nationalism in the past and quite a few of its adherents are open about their antipathy to democracy. After all, democracy yields results that are different from the Christian Nationalist agenda, and as an ideological minority, Christian Nationalists have no hope of enacting their agenda democratically.

It should therefore come as no surprise that Christian Nationalists want to move to a post-Constitution mindset. Theirs is an authoritarian movement to impose what they see as “Christian” laws on the country. This often includes some mainstream Christian policies but others that are very fringe, such as banning birth control. Such a movement is inherently anticonstitutional in a nation that guarantees the freedom of religion.

(As an aside, Christian Nationalism is different from Christianity. Christian Nationalism is an authoritarian political movement cloaked in religious robes. I’m a conservative Christian but not a Christian Nationalist.)

And quite a bit of the MAGA/Christian Nationalist (not the same groups but there is a lot of overlap) agenda may violate other tenets of constitutionalism as well. Equal protection under the law might be on the chopping block, not only for political opponents but for minorities. David French noted recently that “‘The Case for Christian Nationalism,’ one of the most popular Christian nationalist books of the Trump era.. argues that ‘no nation (properly conceived) is composed of two or more ethnicities’ and that ‘to exclude an out-group is to recognize a universal good for man.’”

I wish we weren’t at a point where I was concerned that MAGA Republicans and Christian Nationalists were looking to neuter the Constitution in order to implement some sort of neo-segregation or apartheid or mass deportations, but these are their own words.

If you are part of a political movement that believes Donald Trump has unlimited authority, then the Constitution is going to be a problem for you. The next logical step is for MAGA to reject the Constitution… at least the parts that they don’t like and prevent them from doing what they want to do. The Second Amendment is sacrosanct. The rest not so much.

The reality is that the Constitution and our individual liberties are stronger now than they’ve ever been. Two hundred years of jurisprudence have expanded personal rights far beyond those enjoyed by average Americans in the late 1700s. If you don’t believe me, just look at the dramatic expansion of religious liberties and gun rights in just the past few years.

To some extent, the expansion of rights, the expansion of bureaucracy, and the partisan divide have combined somewhat paralyze our government. The gridlock fuels fantasies of authoritarian strongmen on both sides of the political aisle, but both sides only see it as problematic when the other side does it.

A great many MAGA voters think that they are voting to defend the Constitution, but they should listen to what MAGA politicians and policymakers are saying… and look at what they have done in the past. Despite its claims to the contrary, the MAGA movement is not a defender of the Constitution and is instead working to make it a meaningless relic of the past.