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What It Takes to ‘Preserve, Protect and Defend’ the Constitution
This Constitution Day, don’t forget about the importance of norms—and how hard it can be to restore them.
ON SEPTEMBER 17, 1787, thirty-nine delegates from twelve states signed the proposed Constitution of the United States. On June 21, 1788, New Hampshire ratified it, the requisite ninth state to do so, making the governing document official. By April of the next year, the new national government was operational, with the first Congress and first president, George Washington, in office.
Some twenty-four decades later, the Constitution and the nation are at an inflection point. Former President Donald Trump, who with his supporters damaged or destroyed many of the norms and customs that bolstered our democratic institutions, is now vying to return to office. Polls suggest he has an even chance of doing so. As we celebrate Constitution Day, it is worth reflecting on the fragility of the Constitution and how the recent indictments of the former president are an essential step to restoring some of those important norms and customs.
AFTER SIGNING THE CONSTITUTION, the delegates left Philadelphia to return to their respective states to campaign for its ratification. They knew the document was imperfect. They knew they had failed to identify solutions to obvious problems (like slavery), and they were humble enough to acknowledge there would be future challenges they could not anticipate. But they hoped that the charter they had crafted and the government it created would survive long enough to leave the nation on firm footing, and that future generations would amend it as needed.
The Framers also understood that the Constitution and the nation would be in a precarious state in the beginning. A government established on the rule of law, and one with democratic elements instead of autocratic or monarchical force imposing its will from the top down, requires citizen buy-in. That process doesn’t happen overnight. The longer a government is in place, the more citizens can develop stronger practical ties to it and become more emotionally invested in its survival. In this way, a system of government can, over time, acquire greater legitimacy and symbolic weight.
The Framers also realized that the Constitution was quite short. They intentionally phrased passages in ambiguous language and left much unsaid to ensure ratification and to give future officeholders flexibility. As a result, much of the political system was built on norms and precedents that filled out the blank spaces, many created by that first Congress and President Washington, others by their successors. Over decades and in some cases even centuries of repetition, those customs acquired power. Most of them are unwritten; many have evolved across time; some have been abandoned. But the longer they survive, the more they are instilled with the emotional significance that gives them influence.
The problem with norms and customs, however, is that they are relatively easy to tear down and much harder to restore. This point is illustrated in a Washington Post analysis, “The Abnormal Presidency,” that sought to list “the 20 most important norms” that Donald Trump “broke.” But the list isn’t comprehensive: Because it was published just days after the 2020 election, it couldn’t yet include the ultimate example of a norm Trump would violate—the peaceful transfer of power.
IN THE EARLY REPUBLIC, few laws existed to protect citizens’ rights, to secure the balloting process, or to secure the transition from one administration to the next. Instead, precedents and norms had to be taught; citizens had to learn to cherish the peaceful transfer of power as a bedrock of American democracy.
Over the next two hundred years, states and the federal government legislated to protect ballots from interference, ensure increasingly equal (if still imperfect) access to voting, and prohibit attempts to manipulate the counting of votes. But the expectation that presidents would hand over power peacefully to their duly elected successors remained a foundational element of the American democracy.
For the most part, they did—until Donald Trump. The widespread conspiracy to overthrow the 2020 election, depicted in both the federal Washington, D.C. indictment and the Fulton County, Georgia indictment, was an attack on the foundations of the republic. The efforts that played out on our television screens for weeks, culminating in the violent attack on the U.S. Capitol on January 6th, were an overt threat to the rule of law.
There are crimes associated with any attempt to overthrow an election with specific grounding in U.S. criminal code. For example, 18 U.S.C. § 371 prohibits conspiracies to defraud the United States, including making statements the defendant “knew to be false, fraudulent or deceitful to a government agency, which disrupted the functions of the agency or of the government.” Trump has been charged under this statute in Washington, D.C. for attempting to “impair, obstruct, and defeat” the government’s lawful function of certifying the election results.
Keep up with all our coverage of the Trump prosecutions:
Additionally, Georgia law O.C.G.A § 16-10-20.1 (b) makes it illegal to “knowingly file, enter, or record any document in a public record or court of this state or of the United States knowing or having reason to know that such document is false or contains a materially false, fictitious, or fraudulent statement or representation.” Trump and his fellow co-defendants have been charged under this statute with submitting false election documents.
And of course, the rioters who stormed the U.S. Capitol building and committed violence and destruction are currently being prosecuted for those acts.
But none of these laws explicitly cite a “peaceful transfer of power.” Instead, that is a norm and custom we honor and cherish. The conspiracy to overturn the election and the attack on January 6th were an assault on the Constitution in a more subtle but equally nefarious way. The efforts to overthrow the election did tremendous damage to this norm built up across more than two centuries.
Holding Donald Trump and those who helped him accountable defends the rule of law and serves as a deterrent against future coups. But just as importantly, it also helps in the process of reestablishing and revalidating some of the norms and precedents that Trump transgressed—without which the Constitution cannot survive.