Donald Trump won Tuesday’s election with 305 electoral votes to Hillary Clinton’s 233. So the papers say. But in fact, Clinton triumphed in the only way that counts — i.e. in terms of the popular vote, beating her opponent by more than two hundred thousand votes, according to the latest tally.
This means that Tuesday’s election was nearly an identical repeat of 2000, when Bush also edged out his Democratic opponent thanks to a timely intervention by a Republican-controlled Supreme Court, but lost the popular vote by roughly the same margin — 0.5 percent instead of 0.35. For the second time in sixteen years, in other words, a Democrat has won the vote but lost the race due to a sclerotic eighteenth-century institution known as the Electoral College.
This should be the stuff of headlines from coast to coast, yet instead the news is being buried deep inside if it’s referenced at all. Obama didn’t mention it in his comments yesterday, and neither did Clinton in her short concession speech. “Donald Trump is going to be our president,” was all she could say. “We owe him an open mind and the chance to lead. Our constitutional democracy enshrines the peaceful transfer of power.”
In other words, go back to sleep while the country slides toward the authoritarian right because that’s what the constitutional system wants you to do.
This is no surprise considering Clinton has pledged allegiance to the Constitution on innumerable occasions and was therefore in no position to protest now that the document had gone against her.
But those who care about democracy are under no such obligation. They should be crying bloody murder over the way it has been traduced. Although the school books say that government in the United States is of the people, by the people, and for the people, Americans have been presented yet again with proof that it’s really of, by, and for a piece of yellowing parchment residing in a bomb-proof vault in the National Archives.
Yet the Constitution didn’t just yank away victory — it was one reason why Clinton’s opponent did as well as he did in the first place.
To be sure, it was hardly the only factor. “The long depression,” as Marxist economist Michael Roberts describes the post-2008 capitalist slump, played a part in sparking right-wing populism from Paris to the Philippines. Clinton proved to be one of the most uninspiring candidates in memory, someone whose negative poll numbers were nearly as lofty as her opponent’s (no small feat given Trump’s penchant for offending broad sectors of the population). Not unrelatedly, she personified a moribund liberalism that seems to have lost the ability to inspire.
But there was something else at work, something uniquely American.
From the country’s founding, the Constitution has shaped US society. It’s set the US apart from the rest of the world. And this election, the Constitution helped tip the balance in Trump’s favor. By promoting gridlock on Capitol Hill via an antiquated system of checks and balances, it raised temperatures in a way that played into the hands of a radical right bent on undermining democratic government at every turn. And by hobbling US society with an electoral system better suited to the days of silk knee-breeches and powdered wigs, it made it all too easy for the will of the majority to be frustrated and overruled.
Electoral democracy has suffered a body blow as a result.
Checks and balances, separation of powers, and the rule of law are supposed to be the magic ingredients that safeguard American liberties, preventing any branch of government from acquiring tyrannical power. But in reality they do the opposite, precluding the democratic resolution of political differences and thereby locking in warring factions. Instead of calm and rational deliberation, the system causes passions to soar as disputes fester and grow.
The result is reminiscent of the decades of paralysis over the slavery question that followed the Missouri Compromise in 1819. But instead of civil war, the outcome this time around is a descent into an authoritarianism more reminiscent of the 1930s.
The upshot may not be fascism in the classic sense, with Brownshirts beating up leftists in the streets or marching them off to concentration camps. But the more society destabilizes under a hooligan like Trump, the farther down the anti-democratic road we’ll go.
This is how constitutional structures die, not with a bang but by rotting from within due to complacency, thoughtlessness, and an utter lack of nerve.
As for the Electoral College, it is worth pointing out that the last time this happened, establishment liberals vowed that something should be done. “Our present system is an eighteenth-century antique: it presupposes a starkly elitist conception of government that was popular then but which no politician would dare endorse today,” the liberal legal philosopher Ronald Dworkin declared in the New York Review of Books following the stolen election of 2000.
“We have been lucky not to have been seriously damaged by the Electoral College system long before this election made its anachronism intolerable,” he went on. “We now have the best chance ever to junk the anachronistic and dangerous eighteenth-century system. The public should demand that Congress begin a process of constitutional amendment that would eliminate that system, root and branch, and substitute for it the direct election of the president and vice-president by a plurality of the national popular vote.”
It made sense, yet the result was . . . zilch. The Electoral College remained untouched as the chattering classes rolled over and went back to sleep. Yes, something must be done, they snored, something soon . . . tomorrow.
Sixteen years later, Americans are therefore in the same boat, faced with yet another stolen election and yet another undemocratic lurch to the right. Yet Dworkin seems like a radical firebrand compared to the silence that now prevails. Why such acquiescence?
On one level, the problem is essentially mechanical. After all, abolishing the Electoral College would require establishing uniform voting and registration standards, which would mean federalizing an electoral process currently in the hands of state and local authorities. This would entail an overhaul of the constitutional architecture, perhaps the most dramatic since the adoption of the Fourteenth Amendment in 1868.
So no matter how important, it doesn’t stand a chance in light of a constitutional amending process that requires approval by two-thirds of each house of Congress plus three-fourths of the states in order to change so much as a comma. The three-fourths rule is particularly onerous since it means thirteen states representing as little as 4.4 percent of the population can veto any change sought by the remainder, a margin that is projected to shrink to just 3.5 percent by 2030.
Narrow as the window of opportunity is now, in other words, it will likely contract by another 20 percent or so over the next decade and a half. Without bold action, the Electoral College will wind up more firmly ensconced than ever, and electoral democracy will recede even farther into the distance.
But on another level, the problem is not so much mechanical as political and ideological. After all, an increasingly undemocratic constitutional order might conceivably inspire passionate protests and denunciations — mass demonstrations, torchlight parades, angry broadsides, and so forth. Instead of seeing such a document as an insuperable barrier, working people might see it instead as a challenge.
They might “thunder condemnation,” causing the ruling powers to tremble and quake.
And with good reason. As Tuesday’s election showed once again, the Constitution is not worthy of genuflection — it’s an impediment to democratic rule.