The U.S. Constitutional system of checks and balances may yet operate to constrain the excesses of Trump and his allies, but significant damage has already been done.
Fifty years ago, I was a member of the oldest legislative body in the New World—the Virginia House of Delegates, the direct successor to the Virginia House of Burgesses founded in 1619. We were assembled in the chambers of the old colonial capitol in Williamsburg, listening to a bicentennial address by President Gerald R. Ford.
There was optimism in the air. The United States had come through a crisis much like the one the country faces today. Then, a President of the United States had engaged in illegal conduct during Watergate. Now, a President has engaged in repeated acts of alleged illegality—from encouraging the January 6, 2021 insurrection to authorizing the killing of alleged drug smugglers without trial, along with many other controversial actions in between.
In the case of President Richard M. Nixon and Watergate, the checks and balances enshrined by the Founding Fathers in the Constitution worked to restrain unlawful conduct. The judicial branch, led by Judge John Sirica and backed by appellate courts and a unanimous Supreme Court decision, required the disclosure of tapes that clearly revealed illegal conduct. The legislative branch placed country above party. Hearings led by Democratic Senator Sam Ervin and Republican Senator Howard Baker reached a bipartisan conclusion that the President had to answer for his unlawful actions.
Fifty years later, it is far less certain that the system will function in the same way. The contrasts are striking. The federal judiciary, culminating in a Supreme Court that has often been viewed as supportive of President Trump, has largely been unwilling to restrain the President and, critics argue, has at times enabled his actions. The Court’s decision granting broad presidential immunity has emboldened Trump, while other rulings have, according to critics, weakened safeguards surrounding free, fair and inclusive elections. Trump’s allies are now seen as having greater freedom to redraw congressional districts, regardless of the consequences for Black and other minority voters.
The legislative branch has also failed, in the author’s view, to act as an effective check on presidential power. Congress has largely abandoned its power of the purse, remained passive while the administration dismantled parts of the civil service and eliminated agencies created by Congress, and surrendered much of its constitutional role in matters of war, including military action involving Iran. Congressional investigations, the author argues, have increasingly served to reinforce rather than scrutinize the President’s actions.
The American constitutional system of checks and balances may yet succeed in limiting presidential excesses, but considerable damage has already been done to public confidence. Fifty years ago, the functioning of the constitutional system strengthened the belief among many Americans that the United States was a model democracy—a “city upon a hill.” On the nation’s 250th anniversary, that confidence has, in the author’s assessment, been significantly weakened.
Many Americans have lost faith that constitutional safeguards will continue to function effectively. At the same time, debates over diversity, equity and inclusion, as well as disputes about how American history should be taught—including the legacy of slavery and the treatment of Native Americans—have deepened divisions rather than healed them. As a result, many now question whether the nation continues to uphold the founding principle that “all men are created equal” and are endowed with the unalienable rights to life, liberty and the pursuit of happiness.
The optimism that filled the room in Williamsburg fifty years ago has faded. Yet, the author argues, it is not too late to restore faith in America and its institutions. The country’s founders anticipated the possibility of a demagogue or would-be tyrant emerging. The constitutional system of separated powers, supported by freedoms of speech, press, assembly and petition, together with free, fair and inclusive elections, still possesses the capacity to correct the nation’s course.
The author believes that this restoration is possible, but not inevitable. Achieving it will require time, resources and personal sacrifice from millions of Americans if the country is to regain the confidence and optimism that marked its bicentennial celebration fifty years ago. What a difference half a century can make.
Raymond E. Vickery Jr. is a retired partner at the law firm Hogan & Hartson (now Hogan Lovells), a former Assistant Secretary of Commerce, and a former member of the Virginia House of Delegates.
