Republicans are desperate to distract from the raging dumpster fire of the Trump Administration. Having indelibly yoked themselves to their 2016 standard bearer, they are eager to talk about anything but him.
Some of them, like Utah Senator Mike Lee, have made a cottage industry out of pretending they know more about the Constitution than everyone else. Lee’s alleged expertise has long been the only line on his one-note resume, and so as the Trump campaign sinks below the waves, Lee’s return to dodgy constitutional analysis forms his lifeboat.
Lee’s latest anti-Federalist salvo was to go on Twitter1There was a happy day when conservatives all claimed they were decamping for Parler, and one still pines for that blessed and holy day and exclaim “[A]merica’s not a democracy.” After trolling out the expected denunciations, Lee delivered the punchline: America isn’t a democracy, you idiots, it’s a “Constitutional republic.” Pwning the libs never felt quite so supercilious. What’s more, Lee says “democracy isn’t the objective; liberty, peace, and prosperity are. We want the human condition to flourish. Rank democracy can thwart that.”
If all of this appears to be convenient for a party that has won one national popular vote since 1988, rest assured that this has been a favorite hobby-horse of conservative academia for many years. As a product of conservative academia, I should know. The only new part is the bastardization of the premise to justify permanent white supremacy.
First, the difference between what Lee calls “rank democracy” and a “Constitutional republic.” In a true democracy, decisions are made by majority vote. The closest we have to this today are the statewide initiatives that clog the ballot every two years. The Founders were concerned about unchecked democracy because majorities can factionalize and devolve into a mob rule resembling tyranny. Hence, the complex constitutional scheme emerging from Philadelphia.
But the Founders’ scheme doesn’t exist anymore. The premise that the electoral college would combine diverse interests through an independent filter never worked at all, as previously discussed here. The 17th Amendment provided for the direct election of Senators, removing the State Legislatures from that process.2In 1856, Abraham Lincoln was not so much running for Senator, he was campaigning on behalf of legislative candidates that would send him to Washington. His candidates received more popular votes, but because of how they were distributed, Lincoln was defeated. As a result, the document’s two most prominent features of indirect election have been excised from the American political system for over a century.
The result is an intellectual distinction with no practical difference. Even in 1787, few Americans believed that pure democracy would be sufficient to govern a country spanning the entire Eastern seaboard, much less the capacity to expand west. And applying the concept in 2020 America is laughable. In Federalist 10, Madison defined “pure democracy”—Lee’s “rank democracy”—as “a society consisting of a small number of citizens, who assemble and administer the government in person.” Yes, by all means let’s avoid that. So why is Lee insisting on this distinction even an eighth-grade middle school class would yawn at?
If you believe it’s because Lee commands intellectual rigor, you should follow this piece by finding your local Q representative. No, it is because Lee has fully bought into Trump’s efforts to hijack the founding in the name of indefensible racism. He wants to blame them for implementing a principle everyone knows is wrong: Minority rule is legitimate.
Recall the foundational premise of the American system. The Articles of Confederation pre-dating the Constitution provided for a loose confederation of states, each of which had an equal vote and required a unanimous vote of the State Legislatures to amend. The weaknesses of that document were ostensibly what the delegates to the Philadelphia Convention had gathered to address.
The Constitution itself resolved the debate. Its preamble establishes it as the product of “we, the people of the United States,” a single people governed by a central federal government. The Founders’ clever twist was to make the federal government one of carefully enumerated delegated powers—those powers not specifically delegated for the purpose of governing a large republic would remain with the individual states.3That the cost of this power-sharing arrangement was nearly 250 years of racial disgrace is not lost on me but, please, one Republican dysfunction at a time.
There was also, of course, the now-textbook division between executive, legislative, and judicial branches of government. Each branch was expected to manage encroachments on the other branches’ powers, thus protecting the American people from abuses of power committed by their own elected officials.
This point can’t be emphasized enough. The Founders never believed elections were enough to protect the people from abuses. The government was supposed to check itself.
What should never be questioned, however, is the Founders’ dedication to the majoritarian principle—that is, the majority should govern. Consider Alexander Hamilton’s defense of the Constitution’s advantage over the Articles of Confederation in Federalist 22:
The right of equal suffrage among the States is another exceptionable part of the Confederation. Every idea of proportion and every rule of fair representation conspire to condemn a principle, which gives to Rhode Island an equal weight in the scale of power with Massachusetts, or Connecticut, or New York; and to Deleware an equal voice in the national deliberations with Pennsylvania, or Virginia, or North Carolina. Its operation contradicts the fundamental maxim of republican government, which requires that the sense of the majority should prevail. Sophistry may reply, that sovereigns are equal, and that a majority of the votes of the States will be a majority of confederated America. But this kind of logical legerdemain will never counteract the plain suggestions of justice and common-sense. It may happen that this majority of States is a small minority of the people of America; and two thirds of the people of America could not long be persuaded, upon the credit of artificial distinctions and syllogistic subtleties, to submit their interests to the management and disposal of one third. The larger States would after a while revolt from the idea of receiving the law from the smaller. To acquiesce in such a privation of their due importance in the political scale, would be not merely to be insensible to the love of power, but even to sacrifice the desire of equality. It is neither rational to expect the first, nor just to require the last. The smaller States, considering how peculiarly their safety and welfare depend on union, ought readily to renounce a pretension which, if not relinquished, would prove fatal to its duration.
James Madison, perhaps the most influential individual delegate to Philadelphia, never abandoned this principle either, writing in Federalist 10:
If a faction consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views by regular vote.
Madison wasn’t using the word “sinister” because he was able to subjectively judge the minority views being espoused in his hypothetical. He was using the word “sinister” because minority rule is by its own terms sinister. Madison would have considered a document that thwarted majoritarian rule a significant failure.
As would the lesser-known but prolific Dr. James Wilson, a Madison ally with an under-recognized influence on the Philadelphia convention. Remarking on the method of selecting presidential electors, Wilson expressed his concern (as reflected through Madison’s notes) that:
If equality in the 2dbranch was an error that time would correct, he should be less anxious to exclude it being sensible that perfection was unattainable in any plan; but being a fundamental and a perpetual error, it ought by all means to be avoided. A vice in the Representation, like an error in the first concoction, must be followed by disease, convulsions, and finally death itself. The justice of the general principle of proportional representation has not in argument at least been yet contradicted.
Though there are others, these three examples should suffice. Lee isn’t proposing to preserve constitutional principles—he’s proposing to dismember the fundamental principle that governs both democracies and “constitutional republics”—majority rule. In particular, he intends to normalize electoral apartheid. Republican rule will no longer subject itself to the majority will of the people, but to a racially-aligned electoral college and Senate, while the Republican gerrymandering machine again carves up the House.
Lee has no interest in good government, and never has. In fact, if Lee did have any actual interest in protecting constitutional norms, he might consider this prescient observation by the “simple cobbler from Connecticut,” Roger Sherman, when the Philadelphia convention turned to discussing the mode of appointing judges:
Mr. SHERMAN, was clearly for an election by the Senate. It would be composed of men nearly equal to the Executive, and would of course have on the whole more wisdom. They would bring into their deliberations a more diffusive knowledge of characters. It would be less easy for candidates to intrigue with them, than with the Executive Magistrate. For these reasons he thought there would be a better security for a proper choice in the Senate than in the Executive.Madison’s Notes on the Philadelphia Convention, July 18, 1787
It’s a good thing Roger Sherman never met Donald Trump and Mike Lee. If he had, he probably would have scrapped the whole thing and just taken his chances with old King George.