Ever since Donald J. Trump became President, and then immediately proceeded to run roughshod over our norms and traditions, I’ve been thinking about ways to put in place laws that would, what I call, “hardening our democracy.”
But now, in the second Trump administration, he is threatening our very democracy not just ignoring norms and traditions. He, by any measure, has rapidly moved our country under authoritarian control. We find our beloved countrymen beset by a real armed fascist force materialized on our streets and violating citizen’s and other’s rights enumerated in the Constitution. His dominance over the Republican Party with their slight majorities in both houses of Congress, as well as, having a right wing majority in the Supreme Court, have brought on the menace of a wildly powerful unitary executive, with lording dictatorial command and no real effective check.
My hope is that good American citizens will banish this administration and its congressional coconspirators in the upcoming mid-term elections for Congress through the vote. That is if we are allowed to vote.
However, we, as a nation, need to put in place rules that will prevent us from slipping into authoritarianism ever again. We need to make our democracy as hard as a rock, unbending against the advance of fascism. But how? Indeed, how? Is it even possible?
Then I remembered that Post World War II Germany felt it had to completely redo their constitution to one aimed squarely at never having authoritarianism, fascism or the Nazis ever taking hold in their country again. I also remembered that Italy added anti-fascism clauses to their constitution, namely Provision XII (Clause 1): “It shall be forbidden to reorganize, under any form whatsoever, the dissolved Fascist party.” Spain, once through with Franco, added to its constitution the legal foundations for its democratic, antifascist opposition to totalitarian rule. So it was not only possible to “harden” a democracy against fascism, it had been done and was in practice. This means we can do it in the U.S. too.
So, I gathered up the anti-fascist clauses found in these constitutions and organized them into something that would convey in an amendment to our Constitution that would counter authoritarianism.
It is important that you also read the rational for each section I have put under the sample amendment below, separated by a key line. These two things together will be helpful as a basis for further discussion and possibly to expand and improve on what is below.
Proposed Amendment to the Constitution
(Protection of Constitutional Democracy)
Section 1.
The United States shall be a constitutional democratic republic founded upon the sovereignty of the people, the separation of powers, the rule of law, and the equal protection of the rights and liberties secured by this Constitution.
Section 2.
No person, office, organization, or political party shall exercise, seek to exercise, or claim governmental authority in a manner that would abolish, suspend, or substantially impair the constitutional order, including free and fair elections, the independence of the judiciary, or the lawful transfer of power.
Section 3.
The United States shall not recognize, authorize, or support any movement or organization that advocates or engages in the establishment of authoritarian rule, the concentration of unchecked executive power, or the subversion of constitutional democracy by force, fraud, or intimidation.
Section 4.
Congress shall have power to enforce these articles by appropriate legislation, including provisions to prevent and remedy conduct intended to overthrow or dismantle the constitutional order, consistent with the rights secured by this Constitution.
Section 5.
Nothing in this article shall be construed to abridge the freedoms of speech, press, peaceful assembly, or political opposition, except where conduct or action is undertaken with the intent and substantial effect of destroying the constitutional democratic system itself.
Section 6.
The legislature, the executive and the judiciary can not operate, can not legislate, can not decree, they can not put forward by order, executive or otherwise; rules, procedures or laws that counter the Constitution or the constitutional order, except by the established procedures for amending the Constitution.
Section 7.
The legislature, the executive and the judiciary shall be bound by the constitutional order. This extends to duties and responsibilities enumerated in the Constitution to specific branches of the Federal government. The legislature, the executive and the judiciary can not abdicate its particularized duties and responsibilities enumerated in the Constitution to another branch of government either by negligence, dereliction, abandonment, or otherwise, or by allowing such duties and responsibilities to be usurped by another branch of government. Nor can any branch transfer its cited duties and responsibilities by legislation, decree, order or otherwise, to another branch of the government.
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My Rationale for Each Section of this Amendment
Section 1 is a simple statement that the United States is and always will be a constitutional democratic republic, which places the people at the top of the authority pyramid. This section reflects generally Article 20 of the Basic Law for the Federal Republic of Germany (the German constitution) that basically says Germany is a democratic and social federal state, and that all state authority is derived from the people. Much of what was in the articles before this were articles on individual rights much of which is already covered in the Bill of Rights and other amendments in our Constitution. However, to protect us from authoritarianism and all its flavors, I thought it would be best to assert our form of government first.
Section 2 is here because in my family history the Falange, a violent fascist political party alined with Francisco Franco, usurped authority in the town adjacent to our family’s town in northwestern Spain just about the time of the Spanish Civil War. They dressed up in military like outfits confusing many people who thought they were the military. They then proceeded to bully their way into power over the other towns in the area. They were not the military, they were not officials of the Spanish Republic, and they were not local elected officials. Although my experience was familial this problem must have been a real one that played out in Germany as well. Section 2 is derived as well from the rest of Article 20 of the German constitution.
Section 3 is there to make it illegal for the U.S. to jump into bed with those who would organize to establish authoritarian rule, or mess up our constitutional democracy by force (ie. The Falange), fraud (the fake electors scheme), or intimidation (having ICE at the voting places). My feeling is that I may need stronger language on this one. I would like the activity of these organizations to not be allowed as well, independent of government involvement.
Section 4 basically gives Congress the right to write laws against the actions of those who would want to act against our constitutional order.
Section 5 reiterates the first amendment, however, I’m trying to walk a tightrope here where I am putting language in that doesn’t allow for “conduct or action” with the “intent or effect” of destroying our constitutional democratic system itself. This section needs some fleshing out I think, to stop bad actors without infringing on their 1st Amendment rights. We may need to add to this something about materials such as weapons, or bombs, and more. I would like to do something about the action of putting out lies and propaganda specifically designed for the purpose to confuse the electorate into giving up their democracy, as well as, something that says you can’t physically or materially act to destroy our democracy (ie. No attacking the Capitol). Something akin to treason without the need to be at war with a declared outside enemy. This is tricky stuff so I will need help in sorting out the best language.
Section 6 shouldn’t need to be said because the courts are supposed to strike down these sorts of things, however, I want this in mainly because Trump has been ruling by executive order with most of them starting out as unconstitutional. They get implemented partially or fully immediately only to be ruled unconstitutional after. This creates a big mess to clean-up, (ie. Tariffs) and are really hard to undo, such as reuniting separated children at the border with their parents. I am hoping that executive orders and the like would go through some transparent prior vetting process that makes sure they comply with the Constitution before being issued. I am also hoping that this makes it illegal to put forth a law or executive order having prior knowledge that it is unconstitutional. I wanted a section that would tell Trump and any future authoritarian wannabe that there is a check on their power already in existence, it is the Constitution itself.
Section 7 is in here because of my frustration that the Congress has, by neglect, or non-assertion created the Frankenstein’s monster of the unitary executive. And even though I came up with this section on my own, I learned after that our founding father, James Madison, saw this coming and listed something very similar among his early assertions (drafts) for changes to the Constitution that ended up culminating into the Bill Of Rights. This one was unfortunately left out. It’s time we put it back in.
“Eighthly. … The powers delegated by this Constitution are appropriated to the departments to which they are respectively distributed: so that the Legislative Department shall never exercise the powers vested in the Executive or Judicial, nor the Executive exercise the powers vested in the Legislative or Judicial, nor the Judicial exercise the powers vested in the Legislative or Executive Departments. … “
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AI disclaimer. I am not new to Google searches of old, however, I am new to AI infused searches on Google using Gemini, Google's multimodal large language models (LLMs). ??? I am also very, very new to ChatGPT, which I’ve only been using for a few months. I found them to be helpful. Distrustful of something so new to me and so very fast I checked everything. Humans, however, can see things that machines can not. Also, a groups of humans working together typically can see things that one human, namely me, can not. So, I implore you to read what I have put down and if you have something to add or believe something should be changed, please leave your suggestions in the comment section.
