US constitution is a system of checks and balances against democracy

Washington wars intensify

Will Trump be able to overrule ‘democracy’? It is far from impossible, writes Daniel Lazare

The American theory of government holds that checks and balances, the separation of powers, and other 18th century devices are necessary in order to achieve ‘moderation’ and compromise. But instead of philosophers engaged in calm and rational debate, the reality is that Democrats and Republicans nowadays are more like scorpions in a bottle trying madly to sting one another to death, because there is no other way out.

And now the struggle is reaching a new level of intensity, as Republicans mount what appears to be a full-scale offensive aimed at annulling Joe Biden’s victory and awarding the 2020 election to Donald Trump.

None of this is completely unprecedented in a country torn by decades of divided government. After all, former House speaker Newt Gingrich spent much of the 1990s trying to drive Bill Clinton out of office because of a semen-stained little blue dress, while Republicans attempted to use ‘birthergate’ to do the same to Barack Obama. In collaboration with corporate media and the intelligence agencies, Democrats upped the ante in 2017 by embarking on a multi-year quest aimed at proving that Trump was guilty of nothing less than high treason on the grounds that he was an agent of the Kremlin.

But, as dangerous as all this was, overturning an election before the votes are even counted is worse. While no one knows how it will turn out, Trump recently tweeted a TV interview between a rightwing Fox News commentator named Mark Levin and ex-federal judge Kenneth Starr - the special prosecutor who relentlessly pursued Bill Clinton in the Monica Lewinsky affair. The subject of their discussion: how Republican state legislators might cancel Biden’s win in Pennsylvania by replacing his electors with new ones loyal to Trump.1

Both agreed that it was the “constitutional” thing to do, because it would throw the election into the House of Representatives, which they say is where it belongs. And on a certain level, they are right. Although Americans think they choose their heads of state, the constitution makes it clear that the process begins with the state legislatures instead: “Each state shall appoint, in such manner as the legislature thereof may direct, a number of electors, equal to the whole number of senators and representatives to which the state may be entitled in the Congress,” article II declares. The 12th amendment, adopted in 1804, adds that it is then up to the House of Representatives to make the final decision as to who is president and who is not.

State legislatures propose, in other words, and the House disposes, while “we, the people” stand on the sidelines, tugging our forelocks and grunting assent. But that is not all. The 12th amendment also stipulates that, when it comes to the final decision, members of the House must vote not as individuals, but rather as members of separate state delegations. This means that a half-dozen states with less than a million people would each have the same clout as 40 million Californians, 29 million Texans, and so on. With Republicans controlling 26 out of 50 state delegations despite being in the minority overall, there is no doubt as to who would prevail. Bottom line: Trump wins, Biden loses, and what little is left of American democracy is reduced to rubble.

All of which may sound like a second-rate political thriller. But, with top Republican senators like Mitch McConnell and Lindsey Graham lining up firmly behind their lider máximo and few daring to do otherwise, it is where an increasingly authoritarian Republican Party is plainly heading. If so, the reaction among the honking, cheering and horn-blowing multitudes who poured into the streets of New York and other cities in celebration of Trump’s defeat is predictable: sheer, unbridled fury. But Republicans do not care, because their goal is to elevate 18th century law over modern democracy. The more they do, the more the country will sink back into authoritarianism and the happier they will be.

To paraphrase Orwell, the upshot will be a corporate boot-stamping on a human face - forever. But, because the constitution is the source of all political authority in the US, there will be little that Democrats can do to stop it, since the language, for once, is clear and unmistakable.

Live by the constitution, die by the constitution - such seems to be US democracy’s motto. Previously, the tradition in America was for presidential candidates to fight hard and clean and then graciously declare victory or defeat when it was over. Thus, Al Gore threw in the towel on the advice of Harvard law professor Laurence Tribe, once the Supreme Court decided in favour of George W Bush in the stolen election of 2000. Republican presidential candidate Mitt Romney did the same when he realised the numbers were against him in 2012. Even Hillary Clinton conceded a few hours after the 2016 election, even though she spent the next four years blaming her loss on Russia, Russia, Russia.


But Trump is cut from different cloth. ‘Narcissist’ is the term critics use to describe him. But what they forget is that it is narcissism validated and reinforced by decades of political and economic experience. Whatever his shortcomings in the casino business, there is no doubt that Trump succeeded in turning his name into one of the best-known brands in business. Rather than building projects himself, by the end he was standing back and collecting royalties from developers eager to put his name on hotels, resorts and other structures that they built. By 2012, he was sticking “Trump” on everything from steaks to ale and, in the process, recouping much of what he lost in real estate.2

Indeed, the strategy was so successful that eventually it made the great leap forward from business to politics. In 2016, the Trump brand swept aside a host of competitors in the Republican primaries and then vanquished Hillary Clinton in the general election, thanks to the Electoral College. It prevailed against the ‘collusion delusion’, once special prosecutor Robert Mueller announced in March 2019 that he could find no evidence that a Trump-Russia conspiracy was anything more than a figment of Democratic imagination. It won out in January 2020, when a Democratic impeachment drive petered out in acquittal. And it prevailed yet again when the 2020 election turned into a squeaker, even though the polls unanimously predicted that Trump would lose in a landslide.

The brand came out on top every time and, the more it did, the more it confirmed Trump in his megalomania. The result is thus a collision between an unstoppable ego and the belief that it is the people’s vote that counts. If Trump triumphs over democracy, it will not be despite America’s two-century-old constitution. It will be because the system is essentially on his side.

This is the painful truth that liberals cannot bring themselves to admit. The liberal line is that the constitution and democracy are one and the same, but it is nonsense. To be sure, the constitution, like the Declaration of Independence before it, acknowledges that “we, the people” are in some sense the ultimate source of political power. But the sentiment was never more than vague and half-formed in a system otherwise devoted to checking, balancing and neutralising democracy at every turn. As James Madison, the so-called father of the constitution, put it in a letter to Thomas Jefferson a few weeks after the constitutional convention in 1787, “Divide et impera, the reprobated axiom of tyranny, is under certain qualifications the only policy by which a republic can be administered on just principles.” The people had to divide popular democracy against itself, so as to conquer their worst impulses and create a polity that was stable and just.

Needless to say, Madison and Jefferson’s concept of justice was a bit different from the way people conceived of it in the slave quarters that filled their estates. This is why Lincoln was forced to say the opposite decades later, when, quoting the gospels, he declared that “a house divided against itself cannot stand”. Instead of self-divided democracy, Americans needed democracy that was strong and united, so as to overcome the slaveholder elite. This is what they created in a quasi-revolutionary fashion. But, once the Civil War was out of the way, the spool of history wound in reverse, as a conservative ruling class sought to restore the pre-democratic constitution to the greatest degree possible. The more it did so, the more a corporate dictatorship could be imposed.

This in a nutshell is the history of American democracy - or, rather, American pseudo-democracy. It is one in which form is repeatedly elevated over content, appearance over reality, so that racism, class oppression, mass imprisonment, etc can all continue unopposed.

Hence The New York Times’ shock a few weeks ago, when Mike Lee - a Republican senator from Utah - speculated as to whether America is a democracy at all. He wrote:

The word ‘democracy’ appears nowhere in the constitution, perhaps because our form of government is not a democracy. It’s a constitutional republic. To me it matters. It should matter to anyone who worries about the excessive accumulation of power in the hands of the few.3

The Times speculated that Lee was merely trying to reap a momentary political advantage by “rationalis[ing] Republican attempts to suppress the vote”. But he was really saying something profound about the nature of democracy, which is that it is indeed dictatorial to the degree it centralises political power in popular sovereignty and its representative. This is a point Lenin made as well. But rather than intensifying democracy all the more, Lee’s goal is to disperse it, so that the old constitutional separation of powers can take its place.

This is what Trump is attempting to do as well: ie, mount what might be described as a constitutional coup d’état in order to roll back political democracy and replace it with outright political authoritarianism. If he gets away with it - and that is far from impossible - then anti-democratic forces will cheer from eastern Europe to the UK and beyond. It is not a pretty picture.

But the big question is: what will the working class do in response? 

  1. twitter.com/realDonaldTrump/status/1325662972472123394.↩︎

  2. forbes.com/sites/steveolenski/2015/11/24/donald-trumps-real-secret-to-riches-create-a-brand-and-license-it.↩︎

  3. nytimes.com/2020/10/08/us/elections/mike-lee-democracy.html.↩︎