This week, the Republican-appointed majority of justices on the U.S. Supreme Court ruled that the President of the United States enjoys immunity from criminal prosecution for acts committed “in an official capacity.” The ruling is chilling because one of the current aspirants to that office, Donald Trump, has made clear that he wants immunity not only for his previous actions, but also for ones that he plans to take. It’s also terrifying because it decrees that the holder of that office is exempt from the very laws by which s/he was elected, and because it rejects more than eight centuries’ worth of legal precedent (via the Magna Carta) that are not only widely accepted throughout the developed world, but also were foundational to the structures of thought that led the framers of the United States to declare their independence from England and establish an autonomous nation to begin with.
The ruling is also reassuring, this Independence Day, because it provides a refreshingly clear litmus test for democracy and the survival of the experiment that has become the (foundering) United States of America: if you support this ruling and the presidential aspirant who vied for it, you are an opponent of the core principles on which the country that you claim to love was founded. Conversely, if you oppose the ruling, you are obviously and incontrovertibly devoted, against immense public pressure from family, friends, and the governmental status quo – to preserving and strengthening the vision of representative democracy that has provided you the home, the safety, the society that you enjoy.
Because the SCOTUS ruling threatens democracy in the United States, that litmus test offers an invaluable opportunity a Democratic Party that has been struggling to fight an incorrigibly ageist public’s prejudice against an octogenarian public servant who, on international television, honestly showed the physical and presentational vulnerabilities to which all octogenarians are subject – the same vulnerabilities that we would have seen from (for example) Queen Elizabeth II (who presided as sovereign over a vast, complex, and troubled empire to the end of her life at age 96) if she had been so unfortunate as to take the stage opposite a lying, swaggering blowhard on international television. “The stutter heard around the world” has become a rallying cry against democracy by a party – the Republican Party – that knows little of democracy and cares less for it.
Here is how I think the Democratic Party can seize victory from the jaws of that ageist defeat:
(1) Trump must at all costs not be elected to the presidency. Remember that the first of his two impeachments was for colluding with a hostile sovereign power (Russia) to influence the 2016 presidential election. He cannot be trusted not to do the same, or worse, in 2024.
(2) The Democratic Party must gain a two-thirds majority in the U.S. congress and a majority in three-fourths of the state legislatures.
Those two things – whose moral imperative is obvious to all who love the United States and the idea of representative democracy – are a tall order. But they can be achieved if the Democratic Party adds these two elements, stated succinctly and in appropriate legal language, to its national platform up and down the ballot this fall:
First, a Democratic-majority U.S. Congress has to pass a Constitutional Amendment decreeing that “no citizen or member of the government of this country, including the President of the United States, is exempt from the laws of this country or immune from punishment for violation thereof.” (Remember that there are only two ways of overturning SCOTUS rulings: the Court can return to the ruling and issue a revised or opposite ruling; or the U.S. Congress can pass a Constitutional Amendment that is then ratified by two-thirds of the states).
Second, a Democratic-majority U.S. Congress must revive and pass the Equal Rights Amendment. For those who’ve forgotten (or never knew), this is: “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.” The original ERA passed Congress but was not ratified by enough states within the prescribed time period. Now, having seen what we’ve seen of the former Resident and his enablers, public support would be greater than it was then.
There are many other core Democratic (and democratic) principles to which Republicans are hostile, of course (ending the genocide in Palestine or enacting meaningful gun-control legislation, for example). But if the Party comes out behind these two, widespread public outrage at the SCOTUS ruling of presidential immunity can be coupled with international incredulity that the Republican Party has embraced a convicted sexual predator — and felon, but that’s another story — to bring votes to the Democratic Party in droves, up and down the ballot. And then those two Constitutional Amendments will be possible.
Democrats, let’s get those two elements featured at the top of our platforms up and down the ballot. If we do, then the litmus test will translate into a Blue wave the likes of which have not been seen in modern memory.
And we can, as Langston Hughes put it in 1935, “let America be America again.”
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