When drafting the United States Constitution in 1787, the Founding Fathers of the new nation sought to formalize the nature of what they wished to be an innovative form of government. Trying to reconcile the irreconcilable, they devised a series of complex arrangements designed to ensure that the country would exist not as a simple nation-state governed by a hierarchy along the European model, but as a fragmented association of local governments, called states. These fundamentally autonomous entities would share a general political philosophy and mutually ensure their collective defense.
Among the innovative but historically bizarre innovations was the mode of calculating representation in the federal government based on population. More than half of the states allowed slavery. In the southern states, slaves were the working class and represented an important percentage of the population. To satisfy the demands of those states to include slaves in the calculation while depriving them of all human rights and considering them nothing more than property, the founders agreed to count slaves considered at three-fifth the value of free white citizens.
The founders created one other bold innovation. Because there was no unified nation, the president of the United States would not be elected by the American people, but by a kind of negotiation among the states. Each state could send a slate of electors to an institution called the Electoral College to express its preference for a presidential candidate. If any historical model existed for this “democratic” innovation, it was the Vatican’s system for electing a pope.
For decades after its founding, a growing number of Americans in the North found slavery to be not only inconsistent with the democratic aspirations of the young nation but also in violation of the stirring ideal expressed by a former president and slaveholder who, in 1776, proclaimed that “all men are created equal.” But slavery was one of the essential pillars of a Constitution that was designed to allow states to run their own affairs. Calling slavery into question challenged an essential premise of a Constitution built around tolerating it.
The US Presidential Election and the Armies of the Night
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When the Southern states seceded from the federal union, the entire logic of the original Constitution imploded. After the Union victory, the US should have written a new Constitution. Instead, the Congress amended the existing one, keeping much of its dead wood. What emerged was a Constitution that turned the original concept of the nation on its head. Americans were henceforth called upon to pledge their allegiance to an “indivisible” nation, meaning that the states were now more like provinces or semi-autonomous districts than what they had been previously: the political core of the system.
Thanks to this patchwork, the nation was unified. The American people theoretically became more important than the states as the ultimate reference in the definition of rights. The implicit sovereignty of the individual states was compromised but not erased from the Constitution. It was as if a diversity of clans suddenly decided it was just one big, happy family.
Another ambiguous shift in the democratic concept was taking place in the background. By 1880 every state accepted to cast their votes in the Electoral College for the presidential candidate on the basis of the popular vote within the state. Unlike the abolition of slavery, this shift required no modification of the Constitution. Accordingly, as the Supreme Court declared in Bush v. Gore in 2000, states “can take back the power to appoint electors.”
The Trump 2020 campaign noticed this loophole. The states can choose to ignore the popular vote. In a sobering article for The Atlantic, Barton Gellman writes that Republicans are “discussing contingency plans to bypass election results and appoint loyal electors in battleground states where Republicans hold the legislative majority.” Gellman pressed the Trump campaign to explain its eventual strategy and only received this response: “It’s outrageous that President Trump and his team are being villainized for upholding the rule of law and transparently fighting for a free and fair election.”
Here is today’s 3D definition:
Free and fair election:
The title habitually used by parties to describe elections which they have found the means to distort and even overturn the results of — a phenomenon formerly observed with some frequency in some South American and African republics and which, since the year 2000, has become a respected trend in at least one North American nation.
Contextual Note
The hypothesis laid out by The Atlantic is that Republican governors could declare the official results suspect and arbitrarily nominate electors favorable to Trump to vote in the Electoral College. Were this to happen, there is no question that Democrats and indeed most Americans would call foul. The nation would be faced with a constitutional crisis of major proportions, leading to serious civil unrest and possibly a citizens’ civil war.
Most reasonable people would see this as the kind of outlandish violation of democracy that only someone as brazen as Donald Trump would dare to attempt. They could not imagine that any respectable politician would accept to be party to such a transparently anti-democratic ploy, tantamount to a coup d’état that could irreparably tarnish their reputations.
But Gellman cites Lawrence Tabas, the Pennsylvania Republican Party’s chairman, who appears to find the scenario palatable: “It is one of the available legal options set forth in the Constitution.” Another Republican, Pennsylvania’s state Senate majority leader, Jake Corman, used the classic I- would-never-do-this-by-choice argument: “We don’t want to go down that road, but we understand where the law takes us, and we’ll follow the law.”
For many assertive Americans, the law has become the screen behind which major offenses against public morality can conveniently be justified. If it’s legal, it’s moral, and hey, don’t look a gift horse in the mouth. Everyone is expected to use the advantages the law provides. Politics is all about gaining and holding on to power anyway. The law provides the required setting.
Historical Note
The laws written in 1787 that President Trump’s people are relying on were written for a totally different political entity. But for them, everything the Constitution contains, however inappropriate to today’s world, is sacred. Whether it’s gun rights or the Electoral College, Americans must learn to live with it and even love it.
Because of the mythology surrounding its Constitution, the United States has become a nation that attributes an inordinate amount of its authority to lawyers. It was, after all, the first nation in history to be defined by law rather than secular cultural heritage. Americans see the Constitution as the nation’s virtual birth certificate. The Constitution can be amended, but it can never be replaced. In contrast, since the founding of the US, France has had five different republics, each with a new constitution. The French are currently toying seriously with the idea of moving on to drafting a sixth one.
The impending constitutional crisis is unprecedented, though Gellman refers to one similar incident that occurred in 1876, a contested election between Republican Rutherford B. Hayes and Democrat Samuel Tilden. One major difference is that neither candidate was an incumbent who could use the tools of presidential power. Another notable difference is that neither had quite the reputation that Donald Trump has of twisting both the law and the truth to secure a “deal” on the terms he prefers.
Gellman warns the nation that these are not normal times: “Something far out of the norm is likely to happen.” The consequences are impossible to predict. “The political system,” he tells us, “may no longer be strong enough to preserve its integrity.” Is the sacred Constitution in peril?
Democrats appear to be hoping that Joe Biden will emerge victorious, either on election day or after months of legal wrangling and the trauma of massive civil protest. They believe his victory will usher in a return to “normalcy” and business as usual, similar to the Obama years. But before he can begin the rituals of governing, whenever that may occur, the life of the nation is likely to have undergone a series of radical changes. Alongside an ongoing pandemic, a deepening economic crisis and a general loss of faith in all forms of institutional authority, the vaunted system of checks and balances imagined by the founders in 1787 may find itself both seriously unchecked and totally unbalanced.
*[In the age of Oscar Wilde and Mark Twain, another American wit, the journalist Ambrose Bierce, produced a series of satirical definitions of commonly used terms, throwing light on their hidden meanings in real discourse. Bierce eventually collected and published them as a book, The Devil’s Dictionary, in 1911. We have shamelessly appropriated his title in the interest of continuing his wholesome pedagogical effort to enlighten generations of readers of the news. Read more of The Daily Devil’s Dictionary on Fair Observer.]
The views expressed in this article are the author’s own and do not necessarily reflect Fair Observer’s editorial policy.
