The Democrats’ cries of a threatened democracy ring hollow

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Since Donald Trump’s election as president, Democrats repeatedly have insisted that our democracy is threatened. Their apocalyptic lament ascended to the pinnacle of the party at the Democratic National Convention, when President Obama urged Americans to “embrace your own responsibility as citizens to make sure that the basic tenets of our democracy endure. Because that’s what’s at stake right now: our democracy.”

Perhaps the party’s consultants have advised that warning of the imminent demise of American democracy is good politics. It may be, but given that our democracy gave us Trump as our president, it is an odd claim to make.

Despite years of investigation, no case has been made that Trump somehow stole the election. It is true that he was not favored by a majority of the voters, but the popular election of a president is not the way our democracy works. As designed by the framers of the Constitution, our democracy is carefully constrained by, among many other structural provisions, the Electoral College. Like equal representation of the states in the Senate, the Electoral College is meant to be counter-majoritarian. Democrats might object to these constitutional mandates as undemocratic, but it has been thus from 1787, not just since the election of Trump.

The Founding Fathers had experienced the hazards of majority factions in their state governments and were intent on obstructing similar factions from ruling the new national government. In their discussions in Philadelphia over the summer of 1787, and their subsequent debates in the state ratifying conventions, the Founders expressed far more worry about the excesses of democracy than of executive abuses of power. Indeed, they feared that the former could lead to the latter. History has proven their fears to be warranted and their constitutional constraints not always adequate to the task.

Like most presidents before him — including Obama — Trump has pushed the boundaries of executive authority. Where there has been executive overreach the courts sometimes have intervened, as they did in the Obama administration. If there is a difference between Trump and his predecessors, it is in his ignorant belief that he actually has all the powers he claims to have. Constitutional ignorance is embarrassing in a president, but less of a threat to constitutional governance than a president who understands that the Constitution’s parchment barriers on executive authority are not self-executing.

Many Americans long have embraced the idea that democracy is the be-all, end-all of the Constitution. But that is not how the framers saw it, nor is it compatible with the Constitution they designed. As the extreme partisanship of today’s politics makes clear, the risks of majority tyranny and self-serving collaboration among minority factions are no less real today than they were in 1787. If there is a threat to the survival of our democratic republic, it stems not from a narcissistic president but from the “we won — you lost” attitude of both parties when in the majority.  

Although the Founders were near unanimous in opposing political parties, they understood that democracy invites partisanship. The government they sought to create is one in which partisan factions would have no choice but to compromise. Although we have allowed their design to erode over two-plus centuries, and some of their ideas were flawed, until recently we have maintained our balance through a combination of counter-majoritarian constitutional structure and a shared commitment to the principles set forth in the Declaration of Independence.  

With those principles now called into question on the streets of the nation, and a winner-takes-all mentality on the part of both parties, we are at risk of too much, not too little, democracy. If majority rule is our core constitutional principle, there can be no limit on the majority’s will. There can be no justification for individual liberties beyond the right to vote. Nor can there be constitutional structures that limit the power of the majority. 

When Democrats lament that our democracy is threatened, what they really mean is that they lost the last presidential election. Republicans made the same claim when Obama was president and will again if Joe Biden wins the presidency. As is usually the case, partisan warnings of the imminent death of democracy are little connected to the limited democracy of the Constitution.  

James L. Huffman is a professor of law and the former dean of Lewis & Clark Law School in Portland, Ore. He was the Republican nominee in the 2010 U.S. Senate election in Oregon. Follow him on Twitter @JamesHu41086899.

Tags 2016 presidential election Barack Obama Constitution of the United States Democracy Donald Trump Electoral College Joe Biden

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