Opinion: Why The Founders Could Not Have Devised A Trump-Proof Democracy

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Writing in 1782, in the aftermath of the American Revolution, Thomas Paine exclaimed, “We are now really another people.”

What Paine meant, in part, was that the new republican form of government required a new and different kind of person, a new kind of citizen.  People were used to being subjects of the Crown, ruled monarchically through fear and force. So, the fledgling republic devoted to freedom faced the challenge of making liberty and some kind of governmental authority compatible.  As noted historian Gordon Wood has noted, echoing Paine, simply transforming the structure and nature of authority, of government, would not be sufficient: “The people themselves,” he wrote, attempting to capture the sentiment and urgency of the time, “must change as well.”

In short, keeping the republic, to paraphrase Benjamin Franklin, really depended on people, on individual’s behavior. Indeed, the central governing principle of the new republic became what was called “public virtue,” which referred to the value and behavior of putting the public good ahead of one’s personal greed or interests. 

If this political premise sounds tenuous, that’s because it is. As Wood describes it, “A republic was such a delicate polity precisely because it demanded an extraordinary moral character in the people.”

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Remembering the delicate nature, perhaps even the shakiness, of the foundation on the American republic is perhaps useful for this present moment in which democracy seems under siege. Many in our nation look on with anxiety wondering if our democratic system—its norms, structures, and laws—is sturdy enough withstand the onslaught of Trump and the largely complicit congressional Republicans.

It may be less about our systems and structures, though, than individual, for whom it is difficult to account.

The system of checks and balances our founders designed provides certain safeguards and mechanisms to prevent autocratic rule and preserve democracy. But look what happened both in the aftermath of the Mueller report and in the impeachment hearings.  Despite a wealth of intelligence and evidence indicating that “the Russian government interfered in the 2016 presidential election in sweeping and systematic fashion” and that the Trump administration engaged abundantly in communication with Russia, Senate Republicans simply refused to check Trump, effectively aiding and abetting the threats to U.S. democracy and national security.

Last November 27, 3rd Circuit Judge Stephanos Bibas, a federal judge appointed by Trump, wrote the decision for the court rejecting the Trump campaign’s efforts to challenge Pennsylvania’s election results, upholding a democratic process that roots power in the people, insisting, “Voters, not lawyers, choose the president. Ballots, not briefs, decide elections.”

Bibas averred in the decision, “Free, fair elections are the lifeblood of our democracy. Charges of unfairness are serious. But calling an election unfair does not make it so. Charges require specific allegations and then proof. We have neither here.”

But this decision rested with, depended upon, individuals who may or may not uphold the spirit of democracy in their rulings and in their interpretations of the law.

Indeed, we see many Republicans still trying to challenge election results in the courts. And the decision any court reaches may depend less on the law itself than on the individual judges interpreting and enacting the law, which is why Trump was in such a hurry to appoint and have the Senate confirm Amy Coney Barrett to the Supreme Court.  Whether or not she plays along, Trump recognized that his ability to overturn any election result could possibly depend on an individual judge, as it did back in 2000 when the Supreme Court effectively installed George W. Bush in the presidency in a 5-4 decision.  One judge.

And for this same reason Senate Majority Leader Mitch McConnell has been stacking the federal courts with ideologues.

In mid-November, for example, the Senate confirmed Trump’s appointment of Kathryn Kimball Mizelle to the federal bench in Tampa, Florida, despite the fact that she is only 33 years-old and has never tried a civil or criminal case acting as lead counsel.  What she does have is a record of working for Trump to roll back civil rights.

And remember back in early 2010 when the Supreme Court rule 5-4 in favor of Citizens United against the Federal Elections Commission?

President Barack Obama, in his State of the Union Address shortly after, railed rather presciently—and rather dramatically in a breach of conduct—against the Supreme Court’s decision and its dire consequences for democracy:

“With all due deference to separation of powers, last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests — including foreign corporations — to spend without limit in our elections . . . I don’t think American elections should be bankrolled by America’s most powerful interests, or worse, by foreign entities. They should be decided by the American people. And I’d urge Democrats and Republicans to pass a bill that helps to correct some of these problems.”

What we see is that our democracy does indeed depend on the moral character, the virtue, of the individuals exercising power within our systems.  As we see with the Republicans who refuse to challenge Trump, whether out of cowardice or complicity to overthrow democracy, if those living within democracy don’t want it and work against it, it will not last.

Wood, in giving a flavor of the moment in which the American Republic was formed, cites an oration of the day in which a speaker extolled the importance of virtue:

“Without some portion of this generous principle, anarchy and confusion would immediately ensue, the jarring interests of individuals, regarding themselves only, and indifferent to the welfare of others, would still heighten the distressing scene, and with the assistance of the selfish passions, it would end in the ruin and subversion of the state.”

And here we are, with many who can’t put on a mask, shelter in place, or socially distance to take some care for the welfare of others. And the Supreme Court, again, ruled in favor of allowing large gatherings in the name of religious liberty but counter to the public good and welfare of others.

It is worth remembering upon what our republic depends, if we want to keep it.

We can’t fully safeguard our democracy from individuals like Trump because it depends on individuals being committed to the values and behaviors of democracy.