Post-Trump ‘Reconstruction’ Is a Terrible Idea

Resistance lawyer George Conway, now running for a congressional seat in Manhattan, is peddling one of the worst ideas you will hear: that America after Donald Trump needs a new round of “reconstruction.” This sort of thing failed miserably on a national political level in 2024, but even if it is still a warmly received message in upscale deep-blue districts, Conway’s ideas represent both a misreading of history and an ominously anti-American strain of elite anti-democratic sentiment. Indeed, the persistence of this approach in the face of its rejection by the national electorate makes plain the anti-democratic thinking afoot here.

Conway hasn’t been entirely clear what he means by “reconstruction,” but he tells Time:

“We have to do job one, which is holding the President accountable and his people, and making sure this never happens again,” Conway says. Part of that, in Conway’s telling, is what he is calling “a second American reconstruction,” an overhaul of government safeguards “where we pass laws within the boundaries of the Constitution that will prevent this kind of authoritarian, autocratic corruption, this kind of threat to our system of government in a way of life.” The nod to the post-Civil War reforms is no accident.

He tells The Bulwark that “there has to be kind of a reconstruction here, and this is a critical part of the reconstruction program, that lawyers are gonna have to figure out mechanisms that are constitutional and draft statutes that, you know, prevent some of this sh** from ever happening again, including, you know, electing a crazy president.”

The problem with trying to create statutory “mechanisms” to prevent “electing a crazy president” is that this means somebody other than the voters has to decide that a given person is not allowed to run for the job. That’s a profoundly dangerous power to take out of the hands of the electorate. We already, of course, have some heavy weapons for limiting who runs for president: we can jail and execute people for actual crimes, the Senate can constitutionally bar an impeached-and-removed official from serving in public office, Section 3 of the 14th Amendment can still exclude actual insurrectionists from holding office again, and the major political parties have broad power to decide whom they nominate and how. But each of those sources of power has significant limitations, and for good reason — you can’t impeach someone until they’ve already held office, for example, and a figure who is popular enough could get elected without the parties. What Conway is looking for is to beef up the power of elite institutions not accountable to the voters to gatekeep populist figures.

As a historical matter, the problem with Conway’s parallel to Reconstruction ought to be obvious too: Reconstruction failed at this. As I’ve written before, we underestimate what a fantastic success story Reconstruction was at its core goals: we never again had secession, civil war, or slavery; the Confederate military was entirely disbanded and led no general guerrilla resistance to national unity; and the seceded states were restored to full and equal participation in the national political and economic system. Its most conspicuous failure, of course, was in ensuring black civil rights. But if measured by the goals of ensuring that participants in the rebellion were either reformed or removed from public life, and specifically in preventing them from using public office and private terroristic association with the likes of the Ku Klux Klan to preserve a white-supremacist social agenda in defiance of federal authority, Reconstruction was an abysmal failure. Southern voters kept electing people with Confederate backgrounds. Andrew Johnson mass-pardoned the Confederates. Congress gave up, after a few years, using Section 3 to screen them out. The executive branch gave up, after 1876, trying to manage the governance of the South. By the time Grover Cleveland entered office in 1885, he felt empowered to put ex-Confederates in his cabinet and on the Supreme Court.

Conway’s ideas get worse from there: he wants to “create a body under the 25th Amendment, Section 4, that would decide the president’s capacity, separate from the cabinet” and “put limitations how the president interacts with the attorney general.” These are likewise anti-democratic options that would make the president answerable to an unelectable body that could fire him, while removing the elected government’s control over the administration of justice.

There are prudent structural fixes, whether by statute or constitutional amendment, that could prevent or limit some of the woes of the past decade of executive-branch abuses and failures. These include bright-line age limits for the president, limits to the pardon power, reduction of the federal criminal code and administrative state, separation of the functions of the Justice Department, and the removal of national security powers from the FBI. There are also ways for the parties to improve their nomination processes. But in the end, if we want better presidents, we can’t fix that problem without persuading the voters to elect them.