Chris Edelson

Opinion contributor

Americans have lived with the symptoms for so long that, by now, many of us hardly pay more than a moment’s attention when they flare-up. We may observe, in passing, the numbness we feel when President Donald Trump threatens a political opponent with criminal prosecution. There may be a tingling sensation in our moral compass when Ivanka Trump and Jared Kushner engage in diplomatic relations at the highest levels or when foreign governments line the president’s pockets.

We shrug with resignation as we acknowledge that the Republican leadership in Congress will do nothing to respond after Trump has openly invited foreign countries to, once again, try to help him win an election. When yet another woman steps forward to accuse Trump of sexual assault or rape, we understand that there will be no congressional hearings to sort out what happened.

We understand that Trump will face no consequences for a chilling racist attack against four non-white congresswomen. We know that it is difficult, perhaps impossible, to conceive of anything Trump could do that would move his Republican allies in Congress to support his removal from office, and we see that many Democrats appear unwilling to even consider an impeachment inquiry.

What we are experiencing is nothing less than constitutional failure. A fully functioning system would effectively respond to direct threats to constitutional democracy by a president who is a would-be authoritarian. In a functioning system, impeachment proceedings would have already begun, and Trump would face the prospect of being removed from office.

Aspiring authoritarians ignore rules

A “would-be authoritarian” is a politician who rejects the notion that ordinary rules apply to him. A would-be authoritarian sees the law as a shield to protect himself, his family and his allies, and also as a sword to punish perceived enemies. This is antithetical to constitutional or liberal democracy, which is based on the idea that free and fair elections are the starting point for legitimate governments. Winning an election is not a license to do whatever one likes. The rule of law applies to everyone. It requires that officials be held accountable for their trespasses and guarantees civil rights even to those who did not vote for the winner of an election.

Would-be authoritarians aspire to a system that allows them to do as they please, free from pesky rules and informal norms. While constitutional democrats accept that their political opponents are legitimate rivals for power, would-be authoritarians see their opponents as enemies to be slandered, demonized and threatened with legal reprisals.

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Most authoritarians (including Trump himself) are not aspiring totalitarian dictators like Hitleror Stalinor Kim Jong Un. But it doesn’t take a totalitarian to destroy democracy, as we can see in authoritarian regimes like Russia, Hungary, or Turkey.

Scholars have been ringing the alarm bells for quite some time when it comes to Trump. But some underestimate the danger, confidently predicting that norms will “snap back in the next presidency,” and few focus on the central question: Is Trump’s presidency evidence that the constitutional system has failed?

Most experts who consider these issues debate whether what we’re observing is a “constitutional crisis.” That term, however, is vague and suggests an outcome that is still in doubt. Constitutional failure more precisely describes what we are seeing — a system that is simply not up to the task of responding to a clear danger from within.

No defense against existential threat

Constitutional failure occurs when someone with authoritarian ambitions becomes president and takes steps to achieve those authoritarian goals, yet remains in office. A constitutional democracy with no effective mechanism for removing a would-be authoritarian from office is a failed system, incapable of defending itself against an existential threat.

Critics might argue that this test jumps the gun because it defines system failure as occurring before a would-be authoritarian actually succeeds in dismantling constitutional democracy. Scholars warn, however, that authoritarian threats can build gradually. There may not be a dramatic moment when it is immediately obvious that the system is in danger. The point of describing a test for constitutional failure is so that we can take action before the would-be authoritarian succeeds in consolidating power — by which time it may be too late to act.

Some may point to Robert Mueller’s testimony next week on Capitol Hill as having the potential to change the dynamic. But by now, expecting anything to move Congress to act is like Charlie Brown expecting that this is finally the time when Lucy will let him kick the football. There is no indication that House Speaker Nancy Pelosi is open to an impeachment inquiry, and even less reason to believe that Senate Republicans would consider removing Trump from office in the unlikely event that the House impeaches him. I expect Mueller’s testimony to provide more evidence of constitutional failure —reminding us that the current system is simply incapable of imposing any consequences for the damning conduct the Mueller report describes.

Check creeping 'tyranny' today

James Madison theorized that the U.S. Constitution would protect against authoritarianism (or what he called “tyranny”) in a system under which "ambition must be made to counteract ambition." By Madison’s logic, members of Congress would object to presidential expansion of power that encroached on their power. They would act in the interest of their branch of government in order to protect its (and their) power. But we all know now that lawmakers may acquiesce to power grabs as long as the president is a member of their party.

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Fixing this broken system requires a Constitution that is both more democratic (consider the Electoral College and the composition of the Senate, both anti-democratic institutions) and more liberal, in the sense that it sets meaningful limits on power and provides effective mechanisms for checking would-be authoritarians. Key informal norms that we previously took for granted should be made into legal rules.

Some of these changes can only be achieved by drafting of a new constitution — which is obviously wildly implausible at the moment (perhaps as implausible as Trump’s presidency appeared a few years ago). But navigating through constitutional failure requires creative thinking. No one can guarantee that any system will provide iron-clad protection against would-be authoritarians. However, as we take stock of the gaping holes Trump’s presidency has exposed in our current system, it’s worth thinking about what we can do to increase the odds that constitutional democracy survives.

Chris Edelson is an assistant professor of government at American University’s School of Public Affairs. His latest book is “Power without Constraint: The Post-9/11 Presidency and National Security.” Follow him on Twitter: @ChrisEdelson.