The argument, in other words, is over the nature of American democracy. Is it expressed solely in the Constitution, so that a constitutional action is inherently democratic? Or is the Constitution only a tool for realizing the principles of American democracy as they develop over time? If it’s the second, then an action can be both constitutional and undemocratic, which ought to take it off the table as a legitimate move in political combat.
There’s no umpire to resolve this conflict — no case to take to the Supreme Court. Similar to the Missouri controversy, there’s no “rule of law” with which to settle the dispute. And it’s clear, already, that the conflict has real world implications far beyond the vacancy on the court.
Writing for The Atlantic magazine, Barton Gellman notes that in anticipation of narrow margins and contested ballots, the Trump re-election campaign has developed a plan for winning the electoral vote in Pennsylvania and other key swing states. According to Gellman’s sources in the Republican Party at both state and national levels, Trump’s campaign is discussing contingency plans to bypass election results and appoint loyal electors in battleground states where Republicans hold the legislative majority. With a justification based on claims of rampant fraud, Trump would ask state legislators to set aside the popular vote and exercise their power to choose a slate of electors directly.
This would be an attack on the democratic process itself, an attempt to nullify the election to secure a fraudulent victory. It would also be legal and in full accordance with the Constitution, which gives state Legislatures the authority to choose and allocate electors. There is, in truth, a constellation of actions a president could take that violate the principles of democratic government but are lawful under the Constitution, for the simple reason that no constitution could ever cover all possibilities.
Constitutional government depends on good faith adherence to the spirit as well as the letter of the law. Discard the former, and there’s nothing in the latter to keep a democracy (or if you prefer, a republic) from falling into unenlightened despotism.
The Missouri controversy was, of course, settled with a compromise. Missouri would enter the Union as a slave state, and Maine would enter as a free state, but Congress would prohibit slavery in all land of the Louisiana Purchase north of the 36° 30’ parallel. This defused the fight over the territory, but could not resolve the conflict over the Union. This was legislation, a good faith agreement between two irreconcilable sides, not a permanent addition to the constitutional framework.
Nor could it be permanent in a country where sectionalism made it impossible to meet the supermajority requirement for amending the Constitution. There would be no neutral ground for mediating sectional conflicts over slavery. Instead, Americans would try as much as possible to suppress disputes through a careful balance of power and territory. It was the only option in a society where both sides, North and South, feared domination should one side win the upper hand. Or, as Van Cleve writes,
they believed that under the Constitution long-term capture of the federal government by one section or the other was entirely possible, and that no reciprocity in governing would then be required, so that the losing side would be exploited by the victors in a zero-sum game.
Our conflict isn’t the same, but the dynamic — fear on both sides of long-term defeat and permanent domination — feels familiar. Liberals fear suppression at the hands of a narrow political minority, its power amplified by courts and counter-majoritarian institutions; conservatives fear the same at the hands of a progressive coalition, its power amplified through the organs of cultural influence.
The election in November will shape the future of this dynamic — either strengthening conservatives and freeing them to act without restraint or giving liberals a chance to make political, economic and judicial reform a reality — but it won’t resolve the conflict. The divides are too deep, tied to fundamental questions of ideology and both national and personal identity. We need a compromise, an agreement for the sake of democracy and constitutional government, but it’s not clear we can forge one. And even if we could come to a truce this year or the next, it’s also true that nothing lasts forever.
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