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The Constitution and the Coronavirus

The institutions designed to preserve the rule of law, protect individual rights, and enable the people to rule will not save themselves.
April 13, 2020
The Constitution and the Coronavirus
(Hannah Yoest / Shutterstock)

I am not one to underestimate the unspeakable pain that COVID-19 has already inflicted on the American people, with nearly half a million of us infected by the disease, with a death toll passing 20,000, and with the untold suffering that putting the economy into an induced coma has inflicted on all but the wealthiest among us.

But the impact of this epidemic is going to spread beyond matters of health and economics. And one of the downstream effects is going to be an assault on constitutional democracy and its foundations.

This assault is being obscured by the progress of the virus so that the contours of it have only just begun to emerge. But it now seems possible that when it flowers fully, it will threaten to end our centuries-long experiment with self-government. And what is clear already is that the institutions we have inherited to preserve the rule of law, protect individual rights, and enable the people to rule will not save themselves.

Only we can save them.

Begin with the vital role of a free and thriving press, independent of state control or influence, in our constitutional republic.

Even while some outlets serve largely as mouthpieces for the incumbent administration and provide the sole source to which millions of President Trump’s most ardent followers turn for information, unfettered access to alternative sources and viewpoints is indispensable to democracy’s survival.

But for that access, the president and his administration might well have been able to conceal their responsibility for the speed with which the coronavirus has crossed the nation and the deadly shortages of protective equipment and medical personnel with which the United States has confronted it, resulting in a disease curve worse than that of any other nation on earth.

With a flourish that will figure prominently in his obituary—“I don’t take responsibility at all”—the president has sought, through distraction and deflection, to mask America’s unpreparedness for this pandemic’s arrival and to turn every fact into its opposite.

But our press corps—which Trump routinely derides as the “fake press” and whose members he demeans and disparages at every opportunity—has, in the face of that dissembling, managed to unravel the staggering degree to which Trump and the lackies with whom he has surrounded himself bear direct responsibility, by a combination of inaction and distraction, delay and division, for mishandling this crisis.

The free press has exposed the more than 70 days that elapsed from the president’s first crisis-level briefing on the topic to the time he first took any action at all; the breakdowns in efforts to develop and deploy reliable diagnostic tests; the White House’s instigation of interstate bidding wars when cooperation was called for; and its abject inability to manage federal emergency stockpiles and to distribute supplies as needed.

Trite though it might sound, the men and women of our press corps, who put their lives on the line abroad and at home in search of the truth, deserve our deepest gratitude no less than do the remarkable doctors, nurses, and EMT personnel who risk their lives daily to reduce the carnage of the pandemic. But all of that is at risk with an administration that threatens to yank the licenses of broadcasters and networks critical of its performance and a president who does all he can to undermine public trust in any journalist who dares to challenge him.

Much has already been written about how the pathologies of this president made his behavior over the last three months inevitable. The bottom line, as Jennifer Senior observed, is simple: This is what happens when a narcissist runs a crisis.

It is entirely consistent with Trump’s character for him to have deliberately suppressed early warnings about the pandemic and to have intentionally dragged his feet on rolling out anything like the needed number of tests, thereby concealing from the outset the true magnitude and distribution of the COVID-19 footprint.

But beyond revealing the president’s day-to-day callousness and ineptitude, this crisis has brought to the fore other truths we must confront. It must surely spur us, for instance, to think more broadly and deeply about how such a man became president in the first place.

The increasingly distorting effects of the Electoral College, the notorious ills of partisan gerrymandering, and the sclerotic system of judicial selection—each of these made it possible for relatively accidental patterns of partisan politics to leave us with a manifestly unfit president, backed by an ideologically rigid and ever more right-leaning judiciary, and shielded from accountability by a Senate whose majority is so beholden to the president for its hold on power that it failed to serve its historic checking function.

The virus did not create those conditions. But it puts them in bold relief. What this means is that, when the current plague is finally behind us, we should assiduously seek opportunities to repair the flaws in our institutional infrastructure that made us so vulnerable to the coronavirus.

At the same time, for all the weaknesses that have been exposed in our constitutional structure, this plague has also revealed how much the Framers of our Constitution—at least as restructured following the Civil War—got right.

I have spoken already about the freedom of the press, the only private institution expressly protected in the Constitution’s text, as part of the First Amendment’s ban on governmental abridgment of the “freedom of speech, or of the press.” There is, to be sure, ample reason to worry that the federal judiciary has gone too far in the direction of weaponizing free speech as a tool for wealth to replicate itself and to resist egalitarian adjustments in political life.

But those who react by downplaying the value of free speech itself and dismissing it as a “liberal” enemy of equality make a mistake. At a time when the president relentlessly goes after whistleblowers, inspectors general, persistent journalists, and pretty much anyone whose mission is to uncover uncomfortable truths and bring them to light, Justice Brandeis was right to say, in an image especially befitting the pandemic era, that sunlight is indeed the best disinfectant.

After all, the manner in which an authoritarian China easily suppressed early evidence of what was going on in Wuhan serves as Exhibit A. Experts increasingly suspect that, had China been less secretive at the outset, both that country and the entire globe would have been spared vast amounts of disease and misery. The world is paying the price for China’s dictatorship.

Donald Trump, America’s own aspiring authoritarian, manifestly does not share any such appreciation for our founding values. He has praised Xi Jinping as a “brilliant leader,” one of the many laudatory compliments with which he regularly showers the world’s most notorious dictators. He has time and again derided the Article III judiciary, an imperfect but invaluable guardrail for the rule of law.

And of course he has not concealed the fact that he views himself as literally above the law—that the Constitution gives him the right to do “whatever I want as president.” With a Supreme Court dangerously dismissive of the threat posed by the coronavirus and the ways in which those with partisan reasons for suppressing voter turnout can callously put voters to a choice between voting and protecting their health, the president’s toxic blend of narcissism and ignorance risks, come November: a public health crisis; a delayed election; an “election” in name only—or all three.

Bridging these twin arcs is the president’s potentially enduring perversion of our system of federalism.

He has ruthlessly pitted the states against one another in bidding wars for vitally needed medical supplies, rather than taking advantage of the flexibility and diversity that their proximity to the people across the country make possible. Likewise, he has declined to make full use of measures put in place by Congress, such as the Defense Production Act of 1940, to facilitate a coordinated national response.

Dismissing Congress’s carefully designed allocation of emergency power to the central government as though it demoted “his” federal government to the position of a traffic cop or distribution agent, Trump has encouraged Brandeis’ laboratories of democracy to become (as Steve Vladeck noted) mutually suspicious petri dishes, displaying a sick pleasure at the very sight of their divisive struggles—as though he had no awareness at all of how George Washington’s Continental Army floundered to get the supplies it needed under the decentralized Articles of Confederation.

Even worse has been Trump’s replication with the states of the extortionate and self-serving way he treated Ukraine when he held up congressionally-appropriated assistance as a means of pressuring President Zelenski to do his political bidding. No one who paid the slightest bit of attention to impeachment should have been surprised when we saw Trump berate one governor or mayor after another, demanding borderline mafioso expressions of gratitude and “niceness.”

We are thus left with a strange blend: with the genius of a system that created enough decentralization so that innovative governors could limit the damage of a demagogic president, yet also a system that cries out for a national response that Congress has tried to make available, but that the chief executive has been derelict in delivering.

We can be reasonably certain that, once this terrible pandemic and its future visits are behind us, the structural benefits of federalism will remain available. We can be far less confident that the safeguards of the rule of law and of individual liberties—as well as voting rights and rights of collective political action—won’t have been watered down irreversibly, with the informal traditions that have sustained them eroded by a gradual and anesthetizing process of normalizing the abnormal.

It’s important not to invoke hyper-libertarian cries of “give me liberty” even when the government offers measured responses to contagious disease and other genuine national crises.

But in this moment, the president is attempting to use the virus to erode the very foundations of our democratic order. The machinery of government has proven that it is not capable of stopping him. So the people must.

Laurence H. Tribe

Laurence H. Tribe is Carl M. Loeb University Professor and Professor of Constitutional Law at Harvard Law School. His most recent book is To End A Presidency: The Power of Impeachment (2018, with Joshua Matz).