As the nation has careened down the perilous election road to the precipice of presidential transition, stress levels have spiked at each virus-laden point along the way.
Civic and political life have been shaking at strong, category-four intensity.
Good times for the National Constitution Center.
When norms and laws and rules of behavior as sketched out in the nation’s founding documents are questioned and attacked and ignored, there are few places to turn for answers to the most basic questions.
Can he actually do that? What do they think they’re doing? There’s got to be a law, right?
In that atmosphere — and, indeed, since the last presidential election — the NCC has thrived. It has vaulted past the U.S. Holocaust Memorial Museum and boasts the third-most-viewed museum website in the country, behind only the Metropolitan Museum and the Museum of Modern Art, according to NCC-supplied data.
“Yes, we have a line: ‘Bad for the country, good for constitutional debate,’ ” said Jeffrey Rosen, NCC president and chief executive.
The center’s nonpartisan leanings run deep. On Sept. 15, it hosted an ABC News town hall with President Donald Trump. On Sept. 17, the NCC’s virtual Liberty Medal ceremony honored Supreme Court Justice Ruth Bader Ginsburg, hours before her death. ABC’s town hall with Joe Biden was held there in October.
It is in part news-driven programs like Wednesday’s discussion that have drawn visitors to the NCC website, where there is a wealth of information and archived town-hall videos, podcasts, and blogs. But Rosen believes that a feature called the “Interactive Constitution” is the most powerful force driving visitors by the thousands.
It draws a visitor into a mind-boggling amount of information regarding the writing and interpretation of the Constitution, virtually word by word. Where did the ideas come from? How have they been interpreted? How has the court affected daily life? It is all in this constitutional mountain of speech, developed for schools but useful to all.
Page views for the Interactive Constitution reached 2.5 million last month, up 71 percent from October of 2019.
“There’s no doubt that interest in the Constitution has never been higher,” said Rosen. “We can see our web traffic spiking in response to particular events. … That’s the main driver, and one thing we can say is that the numbers have just kept rising. Certainly since 2016 and in particular in the election season.”
In the run-up to the Nov. 3 election, the NCC built its audience with programming focused on relevant and quite topical issues. There were virtual town halls on social media and election disinformation and on past contentious presidential elections, for instance. Blog posts parsed voting rights and the electoral college. Podcasts covered online speech, U.S. v. Google, presidents and immigration law, and similar issues and topics.
“We’re now coming up first or second in Google for Google searches of individual constitutional provisions,” said Rosen. “It’s interesting that evergreen parts of the Constitution, like the powers of the legislature, are also highly trafficked, as well as the ones you’d imagine, like the Second Amendment and the Fourth Amendment.”
What is known in some circles as the “Electoral College Fright Night” — the idea that a Republican state legislature could disqualify Biden-pledged electors and instead seat a slate loyal to Trump — has received considerable discussion. (The possibility of such a turn of events, centering on the possible actions of the Pennsylvania legislature, has been thoroughly reported by journalist Barton Gellman in The Atlantic.)
Could Trump, or any presidential candidate defeated at the polls and in the Electoral College, be installed by state legislatures? Or are there state laws that might prohibit such an unlikely chain of events?
“That’s the relevant question, and we did debate it,” said Rosen. “The election programs raised that scenario. The argument in favor is the one that Gellman flagged. It’s kind of a very textualist interpretation of the state legislature’s power, since they have the power from Article Two.”
The conclusion from that perspective: a second term for Trump, never mind who gets the most votes.
However, as with most things constitutional, not so fast. Rosen hastened to outline “the argument on the other side.”
Do legislatures have the constitutional authority to toss aside one slate of electors for another and impose a slate of candidates loyal to a loser?
“Absolutely not,” is the countervailing position, Rosen said.
“The state legislators have already created state laws for conducting elections. They can’t retrospectively change the laws, after the election has been conducted,” said Rosen. “They lack the power. The Supreme Court has not come close to considering or expressing an opinion on that prospect, but we did talk about it in a bunch of programs. Lynne Cheney also mentioned that I think in her discussion of James Madison.”
Louis XIV once remarked that “it is legal because I wish it.” In America, the variation on the theme might be “it is legal because the Supreme Court says so.” Hence, the court is increasingly the subject for public debate and calls for reform, or as some call it, court-packing.
“We had an extremely illuminating program about the history of 19th-century court-packing,” said Rosen. “It’s just remarkable. Basically, the court starts off at six, then the outgoing Federalists try to change the size of the court to deny the incoming Jeffersonians the ability to make appointments, which they do for a bit, but then Jefferson gets in and restores the court to six, and it jumps to nine in maybe 1837 … and then it goes haywire in the Civil War.”