Americans talk about democracy like it’s sacred. In public discourse, the more democratic American government is, the better. The people are supposed to rule.
But that’s not the premise that underlies America’s political system. Most of the men who founded the United States feared unfettered majority rule. James Madison wrote in Federalist 10 that systems of government based upon “pure democracy … have ever been found incompatible with personal security or the rights of property.” John Adams wrote in 1814 that, “Democracy never lasts long. It soon wastes, exhausts and murders itself.”
The framers constructed a system that had democratic features. The people had a voice. They could, for instance, directly elect members of the House of Representatives. But the founders also self-consciously limited the people’s voice.
The Bill of Rights is undemocratic. It limits the federal government’s power in profound ways, ways the people often dislike. Yet the people can do almost nothing about it. The Supreme Court is undemocratic, too. Yes, the people elect the president (kind of, more on that later), who appoints justices of the Supreme Court, subject to approval by the Senate, which these days is directly elected, too. But after that, the justices wield their extraordinary power for as long as they wish without any democratic accountability. The vast majority of Americans may desperately want their government to do something. The Supreme Court can say no. The people then lose, unless they pass a constitutional amendment, which is extraordinarily difficult, or those Supreme Court justices die.
That’s the way the framers wanted it. And, oddly, it’s the way most contemporary Americans want it too. Americans say they revere democracy. Yet they also revere those rights—freedom of speech, freedom of religion, the right to bear arms—that the government’s least democratic institutions protect. Americans rarely contemplate these contradictions. If they did, they might be more open to preventing Donald Trump from becoming the next president, the kind of democratic catastrophe that the Constitution, and the Electoral College in particular, were in part designed to prevent.
Donald Trump was not elected on November 8. Under the Constitution, the real election will occur on December 19. That’s when the electors in each state cast their votes.
The Constitution says nothing about the people as a whole electing the president. It says in Article II that “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors.” Those electors then vote for president and vice-president. They can be selected “in such Manner as the Legislature thereof may direct.” Which is to say, any way the state legislature wants. In 14 states in the early 19th century, state legislatures chose their electors directly. The people did not vote at all.
This ambiguity about how to choose the electors was the result of a compromise. James Madison and some other framers favored some manner of popular vote for president. Others passionately opposed it. Some of the framers wanted Congress to choose the president. Many white southerners supported the Electoral College because it counted their non-voting slaves as three-fifths of a person, and thus gave the South more influence than it would have enjoyed in a national vote. The founders compromised by leaving it up to state legislatures. State legislatures could hand over the selection of electors to the people as a whole. In that case, the people would have a voice in choosing their president. But—and here’s the crucial point—the people’s voice would still not be absolute. No matter how they were selected, the electors would retain the independence to make their own choice.
It is “desirable,” Alexander Hamilton wrote in Federalist 68, “that the sense of the people should operate in the choice of” president. But is “equally desirable, that the immediate election should be made by men most capable of analyzing the qualities adapted to the station.” These “men”—the electors––would be “most likely to possess the information and discernment requisite to such complicated investigations.” And because of their discernment—because they possessed wisdom that the people as a whole might not—“the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications.”
As Michael Signer explains, the framers were particularly afraid of the people choosing a demagogue. The electors, Hamilton believed, would prevent someone with “talents for low intrigue, and the little arts of popularity” from becoming president. And they would combat “the desire in foreign powers to gain an improper ascendant in our councils.” They would prevent America’s adversaries from meddling in its elections. The founders created the Electoral College, in other words, in part to prevent the election of someone like Donald Trump.
To modern American ears, it sounds insanely undemocratic for electors to ignore the will of the people of their state. But were Hamilton alive, he might wonder why Americans find this undemocratic feature of the Electoral College so outrageous while taking its other undemocratic features virtually for granted. For instance, each state gets as many electors as it has members of the House of Representatives and Senate. (The District of Columbia now gets a few, too). That is itself undemocratic. It’s undemocratic because while representatives are allocated between the states via population, senators are not. Each state gets two: Whether it has 38 million people (California) or half a million (Wyoming). Because states, not people, are represented equally in the Senate, the Senate is undemocratic. And because a state’s number of electors is based partly on its number of senators, the Electoral College is thus partially undemocratic too.
Moreover, every state except Nebraska and Maine allocates its electors based on the principle of winner take all. Win California by one vote and you get all its electors. For that reason, too, the Electoral College does not always reflect the popular vote. In two of the last five presidential elections, in fact, the candidate who received the most votes—Al Gore in 2000 and Hillary Clinton in 2016—has lost the Electoral College. Americans are mildly but not profoundly disturbed by this. Most of the people protesting Donald Trump’s election are not protesting because he lost the popular vote. When George W. Bush became president after losing the popular vote in 2000, there were protests, but no real question about the inevitability of his taking office. In this way, as in many others, Americans comfortably accept undemocratic elements of America’s system of government even as they profess publicly that democracy is sacrosanct.
In truth, Americans are wedded less to democracy than to familiarity. They accept those undemocratic features of the Electoral College, and of American government in general, to which they’re accustomed. They value things as they are.
This makes sense. Americans are used to choosing presidents in a particular way. As the University of Michigan constitutional law professor Richard Primus pointed out to me, they’re like a family that for as long as anyone can remember has been playing a board game by a certain set of rules. What happens if, in the middle of a game, one player consults the instructions, finds that the actual rules are different, and proposes suddenly abiding by them instead? The other players—especially those who would be disadvantaged by the change—will likely refuse.
Were the electors to meet on December 19 and decide that Donald Trump is unfit to be president, all hell would break loose. Trump’s supporters, and even some who opposed him, would say the election had been stolen. Their worst fears about America’s “rigged” system of government would be confirmed. The president who the electors chose—even if it were Hillary Clinton, who beat Trump by over a million votes—would lack legitimacy in the eyes of much of the public. It’s unclear whether such a president could effectively govern. Violence might break out. Moreover, once the precedent was set, future electors would become more likely to act independently again. The process of choosing them would grow fraught. America’s entire system of presidential elections would grow unstable.
It’s a terrifying prospect. The prospect of a Trump presidency, however, is terrifying too, terrifying in unprecedented ways. Which is why, for the first time in modern American history, there’s a plausible case for urging the electors to vote their consciences. The case is not overwhelming. But it’s not absurd. It all depends on how dangerous you think President Trump would be.
Could the danger posed by electing Trump exceed the enormous danger posed by stopping him? It could, for four reasons.
The first is climate change. Trump has repeatedly called it a “hoax.” He’s vowed to “cancel” America’s obligations under the climate agreement signed last year in Paris, which might lead other nations to do the same, and to undo the restrictions on emissions from coal-fired power plants instituted by the Obama administration. According to a study by Lux Research, America’s annual carbon emissions, which would have dropped under a Clinton presidency, will rise sharply under Trump. And if emissions don’t drop, an article this spring in the journal Nature predicts that 13 million Americans who live in coastal areas could find their communities uninhabitable over the next century. Half of Florida’s population would be at risk.
The second reason to think that allowing a Trump presidency might be more dangerous than overturning it is the threat of nuclear war. At several points over the last 70 years, presidents have faced decisions that could have triggered nuclear catastrophe. Harry Truman considered dropping atomic bombs on North Korea in 1950. John F. Kennedy famously said during the Cuban missile crisis that the chances of war with the Soviet Union were “between 1 in 3 and even.” According to Israeli historian Dmitry Adamsky, the Reagan administration’s 1983 war game, Able Archer, which the Soviets misinterpreted as preparation for an American attack, “almost became a prelude to a preventative nuclear strike.” As Jeffrey Goldberg has noted, North Korea—the most bellicose and erratic regime on earth--may have nuclear missiles that can reach the US mainland by the end of Trump’s second term. Which increases the chances that he could face his own moment of nuclear reckoning. In August, MSNBC’s Joe Scarborough reported that, during a private meeting with a “foreign policy expert,” Trump had asked the expert “three times, in an hour briefing, ‘Why can’t we use nuclear weapons?’” In March, Trump asked Chris Matthews, “Somebody hits us within ISIS — you wouldn’t fight back with a nuke?” Trump has also repeatedly declared his desire to be “unpredictable” when it comes to the use of nuclear weapons.
The president can launch nuclear weapons within minutes, on his own authority. In the words of former National Security Agency Director Michael Hayden, “The system is designed for speed and decisiveness. It’s not designed to debate the decision.” Trump is famous for his impulsivity (his self-destructive late night tweets almost cost him the presidential race), his policy ignorance (he twice during the campaign seemed unaware that the US has nuclear weapons on air, land and sea) and his dismissive attitude toward experts (in November he boasted that, “I know more about ISIS than the generals do.”) Which is why 50 former Republican national security officials warned in August that he “would be the most reckless president in American history.”
Does all this mean that, under President Trump, nuclear war is likely? No. But it does mean that it’s significantly more likely than under Hillary Clinton or any other plausible alternative.
The third reason it’s not crazy for electors to consider defying the popular will in their states is the prospect of what Trump might do in the event of a terrorist attack. Last November, Trump said he’d require Muslims to register in a government database. In December, after jihadist terrorists killed 14 people and seriously injured 22 in San Bernardino, California, he demanded a “total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on.”
Trump has also barred numerous reporters from his rallies, vowed to make it easier to sue journalists for libel and called for investigating Washington Post owner Jeff Bezos’ tax returns in retaliation for his paper’s critical coverage of Trump’s campaign.
What might a President Trump do if terrorists killed hundreds or even thousands on American soil? During times of war and cold war, even more sober presidents have massively violated individual freedom. During World War I, Woodrow Wilson signed the Sedition Act, which made “uttering, printing, writing, or publishing any disloyal, profane, scurrilous, or abusive language about the United States government or military” a crime. FDR interned Japanese-Americans during World War II. John F. Kennedy allowed J. Edgar Hoover to bug Martin Luther King’s phone. We don’t know how Trump would respond in a moment of national hysteria, when restricting press freedom and persecuting unpopular minorities became seductively easy. We do know that, based on his past statements, he’d be less restrained by the Bill of Rights than any president in recent memory.
The final reason it’s worth debating an Electoral College rejection of Trump is the potential that his presidency could spark a constitutional crisis. During the campaign, in a stunning break from American tradition, Trump repeatedly suggested that he might not accept the outcome. As one Trump ally told Politico, “If he loses, [he’ll say] ‘It’s a rigged election…I can’t really picture him giving a concession speech, whatever the final margin.”
If defeated in his bid for a second term, would Trump leave the White House? Would he leave if Congress impeached him? Would he abide by a decision of the Supreme Court that thwarted his agenda? “I can easily see a situation in which he would take the Andrew Jackson line,” declared the eminent libertarian-conservative legal scholar Richard Epstein in June. “[Chief Justice] John Marshall has made his decision; now let him enforce it.”
The problem with all these hypothetical scenarios is that they’re just that: hypothetical. The dangers posed by a Trump presidency are speculative. The dangers posed by using the Electoral College to forestall a Trump presidency are more certain. Moreover, some of the very characteristics that make a Trump presidency so frightening also make his response to being defeated by the electors frightening. If Trump was prepared to the contest defeat on November 8, it’s hard to imagine him accepting it on December 19.
Luckily for Trump, the chances of the electors actually defeating him on that date are extremely slim. Two electors from states that supported Hillary Clinton are reportedly trying to convince their colleagues from states that supported Trump to vote for other Republicans, thus denying Trump a majority and sending the presidential election to the House of Representatives.
But these days, electors are not the independent-minded figures Hamilton envisioned. They’re party activists chosen for their loyalty. Many states even have laws requiring electors to abide by the popular vote, though David Pozen, a law professor at Columbia (and author of a smart recent blog post on Trump and the Electoral College) told me that such laws may well be unconstitutional.
If it’s so unlikely that the electors would defeat Trump, why is the topic even worth discussing? Because, given Trump’s likely ascension to the presidency, Americans must talk differently about democracy itself. Yes, the democratic features of America’s political system are precious. But so are some of the undemocratic ones, the ones that prevent people’s basic rights from being taken from them by a show of hands. Right now, the nature of American public discourse—which treats democracy as an unambiguous good—makes that difficult to say. Rarely do Americans publicly acknowledge the tradeoff between democracy and liberty, between popular will and minority rights, which so concerned the framers. If Trump threatens the rights of Muslims or journalists, if he pressures the Federal Reserve or defies the Supreme Court, he will likely do so in democracy’s name. He may have public opinion on his side. If Americans can’t defend their system’s limitations on democracy, they’ll have trouble resisting him.
Democracy is a crucial component of American government. But, as Fareed Zakaria has argued, more democracy isn’t always better. For most of American history, political parties were not internally democratic. They aren’t in most democracies around the world. Yet during the primaries, when GOP elites sought to block Trump’s nomination, the media generally described their efforts as undemocratic. Which made them almost impossible to publicly defend.
I didn’t defend them either. I was wrong. Before this election, I supported abolishing the Electoral College. Now I think America needs electors who, in times of national emergency, can prevent demagogues from taking power.
Go ahead and call me an elitist; Donald Trump has changed the way I view American government. Before this year, I would have considered Hamilton’s demand for independent-minded electors who could prevent candidates with “talents for low intrigue, and the little arts of popularity” from winning the presidency to be antiquated and retrograde. Now I think the framers were prescient and I was naïve. Eighteen months ago, I could never have imagined President Donald Trump. Now I’m grateful that, two hundred and twenty-seven years ago, they did.
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