“Just imagine Donald Trump with no guardrails,” Kamala Harris warned late in her failed 2024 campaign. The guardrails are “made of Jell-O,” a host for MSNOW complained as he considered Trump’s first year back in office. And Democrats pitch all manner of legislation as essential “guardrails” around the powers and the personality of the 47th president.
The problem is that guardrails — their presence or absence, their strength or deterioration — are a limiting way to imagine restraints on executive power. Even as they supposedly protect us from the overreach of our leaders, guardrails risk reducing the rest of us to spectators. A guardrail suggests that some trustworthy sage of long ago (James Madison is a favorite) has inspected the road and erected sensible boundaries. No need to worry; there’s a guardrail.
Except sometimes there isn’t; or sometimes it’s weak. Or sometimes the only way to make a guardrail go from metaphor to reality is to become one yourself. [...]
The ultimate paper guardrail in the United States is the Constitution, our owner’s manual. This one really is paper; you can visit the National Archives in Washington and see those four brittle and handwritten pages in a hermetically sealed case pumped with argon gas. (Yes, it’s a guardrail with its own guardrails.)
We know the main constitutional guardrails: powers split among the three branches of the federal government; the guardrails of federalism, that is, of powers shared between the states and the national government; and the Bill of Rights, which basically became a condition for skeptical state conventions to ratify the whole thing.
The verbs of the Constitution’s preamble burst with self-assurance — establish justice, insure domestic tranquillity, secure the blessings of liberty — but different passages cut in unexpected directions. For example, the stipulation in Article I, Section IV, that the “times, places and manner” of elections “shall be prescribed in each state by the legislature thereof” is a vital democratic guardrail when, say, an American president who has just lost re-election pressures state officials to “find” more votes in his favor. But how protective of democracy is this guardrail when those state legislatures gleefully redraw congressional districts so that politicians choose their voters and not the other way around?
Even the Constitution’s principal author was not sure that the document was adequate to the task before it. In Federalist 48, Madison wondered whether these mere “parchment barriers” were strong enough to sustain the Republic in the face of “the encroaching spirit of power.”
This singular piece of parchment has endured for more than two centuries and has come to be regarded as the sacred text of our civic religion. Tom Paine even referred to the Constitution as America’s “political bible,” and its most famous passages are often recited aloud, with devotional reverence. [...]
There has been a standoff in recent decades over proper constitutional interpretation. On one side stands originalism (and its ne’er-do-well cousin, textualism); on the other is an evolving, so-called living Constitution. I’m partial neither to an originalist interpretation, with its overtly ideological intentions, nor to a living Constitution, with its almost vibes-based jurisprudence. More attractive is the notion of a “working” Constitution, as Jack Rakove put it in “Original Meanings,” his 1996 history of the Constitution’s beginnings.
Rakove wrote that “Americans have always possessed two Constitutions, not one: the formal document adopted in 1787-88, with its amendments; and the working Constitution comprising the body of precedents, habits, understandings and attitudes that shape how the federal system operates at any historical moment.”
This does not necessarily mean that the Constitution is becoming a wiser version of itself every day, but simply that the document becomes real when it encounters the world it means to govern. In Federalist 37, Madison seems to agree: “All new laws, though penned with the greatest technical skill, and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal until their meaning be liquidated and ascertained by a series of particular discussions and adjudications.”
The law is obscure and equivocal until it is put in action, which means that our paper guardrails aren’t real until they are tested. You don’t really know how strong the railing is until something smashes against it.
In their 2018 book, “How Democracies Die,” Steven Levitsky and Daniel Ziblatt emphasize two political ideas — two guardrails — that are crucial to sustaining democracy: institutional forbearance and mutual toleration.
Politicians display institutional forbearance when they exercise restraint in the use of even their legitimate powers, not deploying them in full for temporary advantage, if only because someday a rival will come into power and do likewise. And mutual toleration means that politicians consider their opponents legitimate participants in the public arena, not existential enemies who must be vanquished at all costs.
When Levitsky and Ziblatt published the book, both guardrails were already under stress in American politics. Today, they’ve been overrun.
Mutual toleration has nearly vanished — politicians and supporters from one side see their opponents on the other as evil, as destroyers of all they hold dear. “If you don’t fight like hell, you’re not going to have a country anymore,” Trump said on Jan. 6, 2021, while Democrats invariably describe Trump as an “existential threat” to American democracy. Absent mutual toleration, the stakes are always at the highest pitch: National survival requires partisan victory.
Institutional forbearance has also deteriorated beyond recognition. The Department of Justice investigates and indicts a president’s political enemies and insulates the president and his family and businesses from tax inquiries. Immigration enforcement agents descend upon neighborhoods, workplaces and schools, detaining, raiding and even killing in the name of mass deportation. A self-styled Department of Government Efficiency takes a chain saw to the federal work force, eviscerating U.S. foreign assistance along the way. And a president is granted, via a generous Supreme Court, presumptive immunity for whatever “official acts” he commits on the job.
After all, why exercise forbearance when you finally wield the power to do what you’ve always wanted to do? When they get in the way of pet projects and partisan interests, high-minded ideas are easily disregarded by those in power. Consider Vice President JD Vance’s dismissiveness toward the American creed — he argues that people will fight for a place and a home, not for mere “abstractions” — even though the oath of office he swore was to defend the Constitution itself, that piece of paper so packed with abstractions.
The individuals who serve as democratic guardrails are those who uphold oaths, who challenge us to live up to our parchment barriers, who give all those other guardrails flesh.
One such flesh-and-blood American guardrail died recently, a man whose lengthy record in public life was unfairly downgraded during his final years. His name was Robert Swan Mueller III, and his case is illustrative of how we’ve come to regard constraints on presidential behavior, and on those tasked with investigating it.
Rakove wrote that “Americans have always possessed two Constitutions, not one: the formal document adopted in 1787-88, with its amendments; and the working Constitution comprising the body of precedents, habits, understandings and attitudes that shape how the federal system operates at any historical moment.”
This does not necessarily mean that the Constitution is becoming a wiser version of itself every day, but simply that the document becomes real when it encounters the world it means to govern. In Federalist 37, Madison seems to agree: “All new laws, though penned with the greatest technical skill, and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal until their meaning be liquidated and ascertained by a series of particular discussions and adjudications.”
The law is obscure and equivocal until it is put in action, which means that our paper guardrails aren’t real until they are tested. You don’t really know how strong the railing is until something smashes against it.
In their 2018 book, “How Democracies Die,” Steven Levitsky and Daniel Ziblatt emphasize two political ideas — two guardrails — that are crucial to sustaining democracy: institutional forbearance and mutual toleration.
Politicians display institutional forbearance when they exercise restraint in the use of even their legitimate powers, not deploying them in full for temporary advantage, if only because someday a rival will come into power and do likewise. And mutual toleration means that politicians consider their opponents legitimate participants in the public arena, not existential enemies who must be vanquished at all costs.
When Levitsky and Ziblatt published the book, both guardrails were already under stress in American politics. Today, they’ve been overrun.
Mutual toleration has nearly vanished — politicians and supporters from one side see their opponents on the other as evil, as destroyers of all they hold dear. “If you don’t fight like hell, you’re not going to have a country anymore,” Trump said on Jan. 6, 2021, while Democrats invariably describe Trump as an “existential threat” to American democracy. Absent mutual toleration, the stakes are always at the highest pitch: National survival requires partisan victory.
Institutional forbearance has also deteriorated beyond recognition. The Department of Justice investigates and indicts a president’s political enemies and insulates the president and his family and businesses from tax inquiries. Immigration enforcement agents descend upon neighborhoods, workplaces and schools, detaining, raiding and even killing in the name of mass deportation. A self-styled Department of Government Efficiency takes a chain saw to the federal work force, eviscerating U.S. foreign assistance along the way. And a president is granted, via a generous Supreme Court, presumptive immunity for whatever “official acts” he commits on the job.
After all, why exercise forbearance when you finally wield the power to do what you’ve always wanted to do? When they get in the way of pet projects and partisan interests, high-minded ideas are easily disregarded by those in power. Consider Vice President JD Vance’s dismissiveness toward the American creed — he argues that people will fight for a place and a home, not for mere “abstractions” — even though the oath of office he swore was to defend the Constitution itself, that piece of paper so packed with abstractions.
The individuals who serve as democratic guardrails are those who uphold oaths, who challenge us to live up to our parchment barriers, who give all those other guardrails flesh.
One such flesh-and-blood American guardrail died recently, a man whose lengthy record in public life was unfairly downgraded during his final years. His name was Robert Swan Mueller III, and his case is illustrative of how we’ve come to regard constraints on presidential behavior, and on those tasked with investigating it.
