If the Democratic Party is serious about preserving America as a constitutional republic, they better act fast

John Roberts | Supreme Court (Photo illustration by Salon/Getty Images)
 John Roberts | Supreme Court (Photo illustration by Salon/Getty Images) 
Minority rule is killing America. This is most obvious in our Senate and Supreme Court, although it’s also hurt the credibility of the presidency and is damaging many of our states. It’s happening because of two issues dating back to the founding of our republic, which brought us the Electoral College and unequal representation in the U.S. Senate. First, here’s how the Electoral College came about, stripped of all the mythology (hint: it mostly had to do with avoiding somebody like Donald Trump ending up in the White House):After the Revolutionary War, the nation was abuzz about one of that war’s most decorated soldiers, Benedict Arnold, once considered a shoo-in for high elected office, selling out to the British in exchange for money and a title.Arnold’s name had been floated for president, and it raised the question of how we could make sure that a stooge working for a foreign government — or just for his own enrichment — didn’t end up in the White House/

Back then, America was so spread out it would be difficult for most citizen/voters to get to know a presidential candidate well enough to spot a spy or traitor, Alexander Hamilton explained in Federalist 68. Therefore, the electors — having no other governmental duty, obligation, or responsibility — would be sure to catch one if it was tried.

“The most deadly adversaries” of America, Hamilton wrote, would probably “make their approaches [to seizing control of the USA] from more than one quarter, chiefly from the desire in foreign powers to gain an improper ascendant in our councils.”

A hostile foreign power influencing public opinion or owning a senator was nothing compared to having their man in the White House. As Hamilton wrote:

“How could they better gratify this, than by raising a creature of their own to the chief magistracy [presidency] of the Union?”

But, Hamilton wrote, the Framers of the Constitution “have guarded against all danger of this sort, with the most provident and judicious attention.”

The system they set up to protect the White House from being occupied by an agent of a foreign government was straightforward, Hamilton bragged. The choice of president would not “depend on any preexisting bodies of men, who might be tampered with beforehand to prostitute their votes.”

Instead, the Electoral College would be made up of “persons [selected] for the temporary and sole purpose of making the appointment” of president.

The electors would be apolitical because it would be illegal for a senator or house member to become one, an injunction that is still in the Constitution.

Hamilton wrote:

“And they have excluded from eligibility to this trust, all those who from situation might be suspected of too great devotion to the President in office. No senator, representative, or other person holding a place of trust or profit under the United States, can be of the numbers of the electors.”

This, Hamilton was certain, would eliminate “any sinister bias.”

Rather than average but uninformed voters, and excluding members of Congress who may be subject to bribery or foreign influences, the electors would select a man for president who was brave of heart and pure of soul.

“The process of election [by the electoral college] affords a moral certainty,” Hamilton wrote, “that the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications.”

Indeed, while a knave or rogue or traitor may fool enough people to even ascend to the office of mayor of a major city or governor of a state, the Electoral College would ferret out such a con man or traitor.

Hamilton wrote:

“Talents for low intrigue, and the little arts of popularity, may alone suffice to elevate a man to the first honors in a single State; but it will require other talents, and a different kind of merit, to establish him in the esteem and confidence” of the men in the Electoral College who would select him as president “of the whole Union. . .”

Hamilton’s pride in the system that he himself had helped create was hard for him to suppress. He wrote:

“It will not be too strong to say, that there will be a constant probability of seeing the station filled by characters preeminent for ability and virtue.”

Unfortunately, things haven’t worked out that way (as we can see with Trump still clinging to his loyalty to Putin and refusing to condemn Russia’s attack of Ukraine).

By the time the telegraph was in widespread use in the late 19th century, the Electoral College had long outlived its usefulness. And now in the past few decades we have seen two terrible presidents, Bush and Trump, put into the White House over the objection of the majority of American voters.

The Senate is also profoundly unequal in its representation of the American people; this is mostly because different states have different sizes and resource bases.

While this was a small problem at the nation’s founding, today, for example, California’s vast resources (unknown in 1787 — Lewis and Clark were still children and thus hadn’t even hit the Pacific yet) have turned it into a such an economic powerhouse that if it were independent it would be the sixth richest nation in the world.

California alone contains 39 million people, almost nine percent of the entire population of the United States, larger than Canada’s 37 million people, with an economy larger than Russia’s.

And yet it is represented by only two senators, the same as Wyoming which has only a half-million citizens (the size of Micronesia), a tiny economy, and few natural resources.

These inequalities have been exacerbated over the past 40 years both because of these 18th century structural errors built into our Constitution, and because, over the past 40 years, a campaign has been undertaken to exploit them by a small group of rightwing billionaires and religious fanatics, with the Powell Memo as their polestar.

They’ve used the wealth and power they’ve inherited or accumulated to manipulate and seize control of our lawmaking institutions at the federal level and in nearly every state.

And Americans have noticed that fair competition has died:

Neither of the last two Republican presidents, for example, was elected by the majority of Americans; the Senate is massively out of balance; and almost every House seat has been gerrymandered to the point where it is no longer in play.

Which is creating a crisis for our nation.

Humans, like most animals, are wired for fairness. Give five toddlers a cookie each and everything is fine; give one of them an extra five cookies and all hell will break loose.

Democracy is in our genes, as is the case with virtually every other animal species on Earth.

When fish swim, bees swarm, or birds migrate it seems like their actions are coordinated telepathically. In fact, each wingbeat or tail twitch left-or-right is noticed as a “vote” by those around them. When more than 50% of the group are twitching to the left, for example, the entire school, swarm, or flock veers to the left. Democracy.

When a mob showed up at the U.S. Capitol threatening to murder the Vice President and Speaker of the House, it was because they genuinely believed Donald Trump’s lie that the majority of Americans had voted for him. People will put their lives and their freedom at risk to right such a perceived minority-rule wrong.

Minority rule almost always ends up producing unfair results that are resented by the majority. We’re seeing this today with a Supreme Court dominated by four rightwing justices who were appointed by presidents who lost the majority vote and who were confirmed by Republican senators who represent 41.5 million fewer Americans than the Senate’s Democrats.

Minority rule has taken over the White House:

We saw it when Bush and Cheney lied us into the war in Iraq after being put in the White House by five Republicans on the Supreme Court, despite having lost the vote to Al Gore by a half-million votes. It provoked the largest demonstrations against a presidential action in the history of the world at the time.

Similarly, when millions protested Trump’s inauguration it was motivated in large part by the widespread knowledge that he’d lost the 2016 election by nearly 3 million votes.  Unfairness infuriates people, and rightly so.

Minority rule has taken over our Supreme Court:

A small group of wealthy ideologues spent millions to pack our courts, and we’ll see the backlash in our streets this weekend as people across the nation come out to protest Alito’s assertion that Sir Matthew Hale’s 1670 interpretation of British witchcraft laws should determine the fate of America’s 21st century women.

Minority rule has taken over Congress:

Democrats in the Senate represent 41.5 million more Americans than do Republicans. Yet that minority of Republicans, using the filibuster, have been able to stop everything from voting rights to healthcare to rebuilding our nation from the damage of 40 years of Reaganomics’ neoliberalism.

total of 77.3 million Americans voted in 2020 for Democrats for the House of Representatives; only 72.8 million voted for Republicans.

Multiple states where the statewide vote is within a point or three of 50/50 (including Florida, Michigan, Pennsylvania, Texas, Georgia, Arizona, North Carolina, Kentucky, Louisiana, and Wisconsin) send far more Republicans than Democrats to the US House than their votes would dictate because of Republican gerrymanders.

This fall things will get even worse because of 2021 gerrymanders, meaning that when over half of Americans again (if history and polling holds) vote for Democrats for the House, the GOP will nonetheless likely take control of that body.

Minority rule has taken over multiple states:

Most of the states listed above suffer from the same problem in their own legislatures. In statewide elections, because most voters choose Democrats, all but two of those states ended up with Democratic governors; nonetheless, even though only a minority voted for Republicans, their legislatures are still Republican-controlled because of gerrymandering.

Whenever a minority rises up and tries to rule over a majority, particularly if that rule violates basic principles of fair play and empathy, the result is conflict.

In most minority rule situations, that conflict is managed with the power of guns and jail cells: nations that were once democracies — like Russia, Turkey, Egypt, the Philippines, Hungary, Venezuela and others — become police states where dissent and political activity are not tolerated.

We saw Donald Trump, who lost the majority vote in 2016, try this when he ordered Defense Secretary Mark Esper to have our military shoot protestors in the streets of Washington, DC.

We humans, like most animals from the simplest to the most complex, are wired by evolution for majority-rule to make the decisions that will best serve our immediate interests as well as preserve our species.

The principal idea of democracy is that there is wisdom in numbers. That the majority is more often right than any minority. As Aristotle wrote in his Politics, “[I]t is possible that the many, though not individually good men, yet when they come together may be better, not individually but collectively…”

If we want to preserve this nation, we must try actual representative democracy.

Whoever wins the majority vote becomes president, as 15 states and the District of Columbia — representing 195 electoral votes — have chosen (states representing another 75 votes are needed to end the Electoral College).

Expanding and unpacking the Supreme Court would restore fairness and balance to the head of that branch of government, and adding Washington, DC and Puerto Rico as states would help ease the unfairness of representation in the Senate.

And Congress must pass a federal mandate that every state cease gerrymandering and use nonpartisan redistricting commissions like California and several other Democratic-controlled states have already done to insure fairness and equal representation.

Republicans not only cling to minority rule, they now want to go to the next step and impose a neofascist Taliban-style government on America run by the morbidly rich and fanatically religious.

Editor’s Note: This article originally appeared at Common Dreams. It is licensed under a Creative Commons Attribution-Share Alike 3.0 License.

Posted in: Congress, KM, Legal Research, United States Law