If they walked among us today, the ghosts of the Framers would be troubled to distraction by the rise of Donald Trump, a demagogue they failed to anticipate. Certainly they tried. Through wars and Depression, the protections Madison embedded in the Constitution he largely fathered helped deter authoritarians. But four years of the House of Trump have so accelerated the stresses on American democracy that the Framers’ defenses resemble a dreamscape of misplaced hopes and unintended consequences.
Trump did not invent the vulnerabilities he is exploiting. Like any constitution, ours reflects the life experiences of the drafters, who wanted to preserve their republic, not weaken it. The autocrats they feared most were monarchs against whose misrule the separation of powers and impeachment were formidable checks.
How differently the republic looks today. Partisanship so permeates the executive and legislative branches, and increasingly the Supreme Court too, that the “separation of powers” risks losing the separateness democracy requires. Last December the Senate majority leader reassured his party there “will be no difference between the president’s position and our position,” later dispensing with any pretense of performing his chamber’s constitutional role by announcing Trump’s acquittal before his trial began.
The Framers’ exaggerated trust in the separation of powers contrasts with their modest faith in elections as a check against autocracy. They feared mob rule as much as the men who made it their instrument: Voters were “impetuous,” “easily played upon,” likelier stooges of autocrats than restraints and merited no direct role in choosing a president. That task went to men like the Framers themselves, “distinguished by abilities and virtue,” meeting in an Electoral College. The job of conducting elections went to the states, and in what is surely the oddest decision of all, the Constitution is silent on a citizen’s right to vote.
This flimsy foundation for popular democracy reflects the Framers’ dilemma: How do you craft a Constitution embodying the people’s sovereignty when you distrust the people’s will? Unable to solve that riddle they created a body with a name worthy of Monty Python, the “committee of postponed parts,” which promptly punted to the states. The result is the paradox we live under today: Our most nationalizing act, choosing one person to represent all of us, is determined by electoral votes allocated by states as they wish.
The effect of these arrangements could hardly have been foreseen in 1787. While the judgment of electors quickly became irrelevant, Electoral College votes still determine our presidents. Because they are not distributed equally by population – one in Wyoming equals three in California – twice this century, the loser defeated the popular vote winner. The Framers planned a deliberative filter of the people’s choice; they got a Frankenstein-machine, eating the popular will in favor of winner-take-all state majorities, a result they could hardly have intended.
Giving states control of the conduct of elections was toxic in its own way, allowing state-based power brokers to manipulate voting power for partisan or racial purposes. In landmark rulings during the 1960s the Supreme Court remedied some of this, expanding the right to vote. But in 2000 a conservative court reversed, finding “the individual citizen has no federal constitutional right to vote”; next, it gutted the Voting Rights Act. Conservative state legislatures followed with virtual geysers of voter suppression laws.
American democracy is at a moment of peril. A president rejected by most voters in 2016, but who eked victory from the Electoral College, now won’t commit to leave office as the Constitution commands if he loses in 2020. Ironically, if Trump acts on his threat, flaws in our Constitution and laws may abet his effort to subvert them: state control of presidential voting, the profusion of state and county standards for casting and counting ballots, the space for partisan manipulation, the potential for dueling slates of electors, the absence of a federally guaranteed right to vote. And the tide pulling all of this to a partisan Supreme Court seems to optimize conditions for overruling democracy.
We can still fix this. We can mend the flaws in our democratic apparatus by a landslide to reject Trump that is large enough to defeat his schemes to overturn it.
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