More ballot games
Another year, another legal attempt to stymie Donald Trump. Daniel Lazare detects echoes of 1860
The latest episode began this summer when William Baude and Michael Stokes Paulsen, law professors at the University of Chicago and the University of St Thomas in Minneapolis respectively, posted an academic article about the 14th amendment to the US constitution and its implications for the upcoming presidential election.
Adopted three years after the Civil War, the amendment is a 400-word block of prose that essentially transformed America from an agrarian federation to a Bismarckian industrial state. Among other things, it created a new standard of national citizenship, gave the federal government new authority to impose “equal protection of the laws”, and barred anyone from office who had “engaged in insurrection or rebellion against the [US government] or given aid or comfort to the enemies thereof.”
The last item was key. Its purpose was to prevent ex-Confederates from taking over Washington the way they had before the war. But since Donald Trump had urged Republican rioters on January 6 2021 to storm Capitol Hill and prevent Congress from certifying Joe Biden’s election, Baude and Paulsen argued that he was now guilty of insurrection as well. Under the terms of the amendment, he was therefore ineligible to hold office.
Problem solved? Although Baude and Paulsen are both associated with the rightwing Federalist Society, liberals seized on their argument like a drowning man seizing on a life raft. Democrats have spent the last six or seven years doing everything under the sun to stop Trump. They launched a phony hue-and-cry over Russian interference, they impeached him twice, they held congressional hearings on primetime TV into his role on January 6, and they hit him with 91 felony charges while slapping on two or three civil suits as well. But after all that, liberation had finally arrived.
Since the clause was “self-enacting,” moreover, Democrats did not have to do anything beyond reminding state election officials of their constitutional duty to remove Trump’s name from the ballot. After watching Trump climb steadily in the polls, they could therefore relax. Despite his advanced age and growing unpopularity, Biden was such a shoo-in that he would barely need to campaign.
But there were problems. One concerned Trump’s first amendment rights. Was his ability to speak his mind and campaign as easily tossed out the window as all that? Another concerned the people’s right to vote for the candidate of their choice - was that out the window too? A third concerned the sheer improbability of it all. Did Democrats honestly believe that they could waltz back into the White House unopposed on the basis of a constitutional doctrine that no‑one had heard about before August?
On December 19, Colorado’s top court endorsed the Baude-Paulsen argument by ruling four-to-three that Trump was ineligible. A few days later, Maine’s top election official struck him from the state ballot as well. In the meantime, however, Dan Patrick, Texas’s irrepressible ultra-right lieutenant governor, threw a curveball by announcing that he was considering removing Joe Biden from his state ballot in retaliation. If so, the results could snowball as other states strike off candidates they didn’t like either. A two-party system would thus devolve into a patchwork of single-party dictatorships in each of the 50 states.
This is bizarre but not unprecedented. The same thing happened in 1860 when four candidates ran for America’s top office: Abraham Lincoln of the newly-formed Republican Party plus John C Breckinridge of the Southern Democrats, Stephen A Douglas of the Northern Democrats, and John Bell of a centrist group calling itself the Constitutional Union. Although not yet anti-slavery, Lincoln was clearly heading in that direction since he was for holding the Union together at all costs. But others were all over the map, with Douglas in favour of appeasement, Breckinridge an outright slavery supporter who would later become a Confederate general, and Bell a determined centrist who would become known as “Nobody’s man”.
Voters had a lot to choose from. But they were hampered by the fact that nine states, all in the South, barred Lincoln from their ballot while anywhere from two to four states in the north barred Douglas, Breckinridge, or Bell. With the electoral system fracturing, the republic in general would follow suit just a few months later. If the voting process is disintegrating in 2024, it looks like America could once again be heading in the same direction.
To be sure, the US supreme court is all but certain to intervene before matters get out of hand. But it’s hard to restore legitimacy when it is fast dissipating. If the court lets the Colorado and Maine decisions stand, then balkanisation will accelerate. If it strikes them down, furious Democrats will accuse it of gutting an all-important reconstruction-era amendment and thus encouraging precisely the sort of insurrectionism that the constitution is supposed to prevent. Since Trump appointed three of the court’s six-member conservative majority, they will also accuse him of rigging the game in his own behalf. The court’s growing minoritarian quality - five of its conservative members were nominated by unelected presidents while four were confirmed by senators representing less than 50% of the population - does not help either. Whatever the court does, the consequence will be more instability rather than less.
The contrast with the United Kingdom is striking. The British constitution is also a timeworn relic of another age. But it responded with relative alacrity when confronted with a not-dissimilar problem in the form of Boris Johnson, another rambunctious rightist with a tangential relationship to the truth. Replacing him with Liz Truss in July 2022 did nothing to halt the Tory meltdown. But at least the Johnson problem was solved.
Yet not only is the Trump problem unsolved after all these years, but the man is stronger than ever while the political system is in growing disarray. As bad as conditions may be in the UK, at least it is not facing authoritarian takeover the way America is.
So what’s going on?
The answer is that while all bourgeois states are unhappy after years of slow growth, economic polarisation, plague, climate change and war, the United States is unhappy in a way that is absolutely unique. Wages have been flat for half a century, unionisation rates are down more than 60 percent, while a typical corporate CEO now earns 344.5 times what an average production worker makes, a 19-fold increase over the last half-century.1 A major health crisis is brewing thanks to rising levels of obesity, psychological depression and “diseases of despair,” which is to say suicide, drug overdose and alcoholism. (With 4.2% of the world’s population, the US consumes an estimated 80% of the global opiate supply.)2 According to economists Anne Case and Angus Deaton, a husband-and-wife team at Princeton who coined the term “diseases of despair”, the reasons for the breakdown are clear: income stagnation, downward intergenerational mobility, and fractured social and family relations.3
There’s a growing imperial crisis due to the 2021 military collapse in Afghanistan, a failing war in the Ukraine plus a conflict in Gaza that is threatening to spread across the Middle East. There’s the rise of a “Brahmin left” rooted in the top 10% that is so strident and hysterical on issues ranging from feminism to gender and race that it is driving millions of workers to the right.
Finally, there’s the question of political mechanics. America is not the only country with an ungainly political system. French president Emmanuel Macron must somehow make do without a majority in the national assembly while Hungary’s parliamentary system is so disproportionate that Viktor Orban has the two-thirds majority he needs to change the constitution despite winning less than 53% of the vote.
But nothing compares with the 18th century system in the US, with its complicated checks and balances and its growing tendencies toward minority rule. Since elaborate compromises are required to keep such a ramshackle structure going under the best of circumstances, a growing social crisis has reduced it to a standstill for close to 30 years. The more gridlock deepens, the more temperatures rise on both sides of the aisle, which leads to even more gridlock than before and more social breakdown too. January 6 2021 was merely the first time a prolonged cold war led to an outbreak of mass violence. But it won’t be the last.
This is why Trump appears to be strengthening in recent months, running even among black Americans according to a recent poll but pulling out strongly ahead among Hispanics and maintaining a two-point lead overall.4 Structural change is impossible due to a dysfunctional amending clause that allows tiny minorities to veto any and all efforts at constitutional reform. Since such a system has nowhere to go but down, frustrated voters are opting for a candidate who will simply smash stuff up. They want a bull in a china shop, a role that fits Trump to a T. “I am your warrior, I am your justice”, he told a crowd in Waco, Texas, in March. “... For those who have been wronged and betrayed … I am your retribution.”5 The cheers were loud and enthusiastic for the sort of scorched-earth rhetoric the Republican faithful long to hear.
Everything Democrats do to make things better just makes them worse. Beginning in early 2017, they raised a hue-and-cry over Russian political interference in a plain-as-day attempt to drive Trump out of office. Yet the only thing it accomplished was to make them look like hypocrites when they raised an outcry over Trump’s feeble attempt at a coup d’état in 2021. The legal offensive they’ve mounted in recent years looks like an exercise at judicial manipulation whose goal is to stop Trump in his tracks, which it in fact is. The Colorado and Maine decisions are meanwhile aimed not so much at Trump as at his supporters instead: the “deplorables” who are “racist, sexist, homophobic, xenophobic, Islamophobic - you name it,” according to Hillary Clinton. As far as Democrats are concerned, they probably should not be allowed to vote at all.
This makes the party seem snobbish and undemocratic, which it is as well. Democrats are terrified that Trump is going to win and are therefore doing everything they can to terminate the process beforehand. But what they cannot understand is that the more they try to short-circuit the system, the more Trump’s poll numbers go up.
Not that Democrats are crying wolf about what a second Trump presidency will mean. To the contrary, the spectre of rightwing authoritarianism is all too real. With the federal bureaucracy in open revolt, Trump’s first term was little more than an extended amateur hour in which he found himself buffeted by one damaging news leak after another. But he seems better prepared a second time around.
He is promising all kinds of draconian actions - to use military funds to build detention camps for illegal immigrants, to invoke the 1807 insurrection act so he can deploy troops along the southern border, to use the Justice Department to go after political enemies, and so on. While vowing to “fundamentally re-evaluat[e] Nato’s purpose and Nato’s mission”, he says he’ll use military force to go after Mexican drug cartels.6 Where once they held themselves aloof, Washington think tanks led by the powerful Heritage Foundation are now throwing themselves into the fray - drawing up plans to gut the “administrative state” by ousting federal employees they believe are blocking Trump’s agenda and replacing them with eager loyalists.
The more events spin out of control - and spin out of control they will - the more extreme Trump’s response will become. A second Trump term will be ... interesting.