One of the defining challenges of our time is the preservation of our ideal of government by the people, with threats around the globe showing that democracy is always in danger of slipping away and being replaced by dictators of various stripes. But what happens when the dictators were elected in (reasonably) fair and open elections? Can that possibly make their actions legitimate?
In my recent travels around Europe, I was interviewed by a Swedish journalist who asked about my fears for the future of the rule of law in the United States. I ran through a few of the examples of how Donald Trump and the Republicans are trampling well established norms and abusing their power, noting among many other examples the then-recent controversy over Trump’s issuance of an emergency order to build parts of a wall on the U.S.-Mexico border, which had ended with a failed attempt in Congress to override Trump’s veto of a bill to cancel the emergency order.
Most of the people I spoke with abroad were extremely knowledgeable about U.S. politics, which meant that I could rely on my audiences to know many background facts about the U.S. system. The strongest reaction that I received was when I would argue that Trump will lose in 2020 but then declare the results of the 2020 election void, based on imaginary voter fraud or some other pretext. I used Trump’s declaration of an emergency earlier this year to demonstrate that he has no hesitation to abuse power and that Republicans show no inclination to stop him.
Even so, my audiences were highly skeptical of my prediction that Trump and the Republicans are all but certain to engage in what would amount to an internal coup in late 2020. This seemed so outlandish to them that many of them simply refused to believe that America could ever allow this to happen. In holding fast to that belief, European audiences are no different from many Americans, who also are (in my opinion) living in denial about the threat that Trump and his enablers represent.
But during that interview with the Swedish journalist, I was not confronted with the expected skepticism about Trump/Republican lawlessness. Instead, after I described how both houses of Congress had failed to override his veto, the journalist asked simply: “That’s just democracy, isn’t it?”
I have to admit that I was caught short, both because it was not the standard response but also because of what he said next: “After all, the people elected Trump and everyone in Congress, and even though they decided not to do what you think they should do, isn’t that just democracy?”
This question raises fundamental questions about elections and their consequences. Are there any limitations on what elected officials can do, beyond what the Constitution and statutes say? And what if they change the Constitution or the statutes? Does that make everything okay?
The Brutalist Version of Power: We Won!
Political observers commonly repeat the truism that “elections have consequences.” The question here is just how extreme those consequences can be. After he and George W. Bush barely won a second term in 2004, then-Vice President Dick Cheney referred to the election as the “accountability moment,” as if anything that he and his nominal boss might do from that point forward had been blessed by the voters.
Variations on this theme can be found everywhere, most recently in the repeated assertions by Trump’s defenders that everything we know about Trump’s depredations and degradations—from his misogyny to his refusal to release his tax returns and everything in between—were “known to the voters” in 2016. And because Trump won, “the voters” must therefore have been untroubled by all of it.
Even in a narrow sense, of course, that is a silly argument. People do not tacitly approve of everything that we know about a candidate when voting for him or her. I could have voted for, say, Martin O’Malley in the 2016 Democratic primaries and still wanted him to be held accountable for anything that might have been suspected about him at the time. (As a former mayor of Baltimore and governor of Maryland, O’Malley was certainly susceptible to many questions about his career in a political culture with a history of corruption.) Voting for a candidate is an all-things-considered decision, and the most that one can conclude is that a vote simply says that a voter likes the positives more than she hates the negatives, not that the negatives are suddenly washed clean. (And given that, during the election, Trump said again and again that he would eventually release his tax returns, only to reverse himself after the election, even that argument is based on a lie.)
Beyond that, Trump is particularly poorly positioned to rely on the argument that “the voters have spoken.” After all, we all accept that he “legitimately” won the presidency only in the sense that our encrusted Electoral College system (which is one of many ugly compromises with the slave states at the nation’s founding) allowed him to win. Trump, by virtue of having won the presidency while losing by a substantial majority of voters, cannot even say that the voters have spoken and, by supporting him, have absolved him of his sins. Even in the mindless world in which votes constitute all-or-nothing endorsements or condemnations of candidates, Trump was condemned by the American people.
That does not, of course, stop him from saying (over and over and over): “I won!” Elections do have consequences, and he is in the Oval Office rather than Hillary Clinton. Even so, there is not even an on-its-own-terms argument that the 2016 election results are proof positive that the people do not want him to be forced to comply with the law and political norms.
But this is arguably relatively small potatoes, at least in the sense that we might merely be seeing Trump test previously unexplored boundaries of the law. It is true that he is he willing to break norm after norm, exploring what he can get away with in the same way that he acted lawlessly in his private life, cheating people and breaching contracts and then daring his victims to take him on in court (and sometimes preemptively suing them, simply to make it too costly for his weaker opponents to fight him). That is hardball, but under our system of laws and the balance of powers under the Constitution, he can be stopped. Can’t he?
Viewed from that perspective, Trump and his administration are now in the high-stakes yet tedious business of daring Congress to stop him, and also daring the courts to step in (sometimes after a standoff with Congress that is appealed to the courts, and sometimes in direct litigation). Like a toddler, he might simply be seen as testing the limits of what he can get away with.
Because he and the Republicans are busily packing the courts with friendly judges, however, they are likely to get away with things that were once thought patently illegal if not unconstitutional. (See, e.g., the Gorsuch-not-Garland Supreme Court’s approval of the Muslim travel ban.)
Which brings us once again back to my Swedish interlocutor’s question: Isn’t that just democracy? The Republicans won a majority of the Senate’s seats in open elections, they blocked President Obama’s nominees, and now they are following legal procedures to pack the courts with their judges. Setting aside the fact that the Senate itself is also a vestige of the founders’ compromises with slaveholders, is not everything that we are seeing simply the American political system operating “normally”—that is, with surprising outcomes but through legitimate and well understood means?
The Responsibilities of Power: Restraint and the Preservation of Meaningful Self-Government
The problem with the it’s-just-democracy argument is that it proves far too much. Many, many dictators first came to power through what appeared to be legitimate victories in open elections. They did not run on a platform that said, “If elected, I will become a dictator,” but once elected, they first worked within the rules to change those rules and turn themselves into dictators. Was it “just democracy” in Erdogan’s Turkey, Duterte’s Philippines, or Orban’s Hungary, such that anything that those ruthless men do now is deemed to be what the voters must have wanted all along?
And because discussions of incipient dictatorship necessarily conjure echoes of the rise of Adolph Hitler, it is worth remembering that although he lost the 1932 election, Hitler was appointed Chancellor in 1933 through what appear to have been legitimate constitutional processes. That obviously cannot make what happened after that a matter of simple democratic choice.
But why not, exactly? The most straightforward reason is that we cannot simply say that voters (and potential voters) are somehow always on notice that anyone they elect might manipulate and then change the system. That is, it is not enough to say, “Hey, you voted for them (or chose not to vote for their opponents), so now you have to live with the consequences.” People have a right to expect that they will not be told too late about things that would have changed their voting decisions, including the secret (or not-so-secret) totalitarian desires of presidential candidates.
Ultimately, that is what the rule of law is designed to protect. Constitutional processes exist not only to protect against the tyranny of the majority but against the illegitimate abuses by a majority that would have been a minority had the people known their true colors. Americans have a right to expect even Republican senators, for example, ultimately to act as guardians of the system rather than as power maximizers. If elections have consequences, after all, the people need to know that the most extreme consequences will be prevented.
Beyond that, the interests of future citizens matter as well. If we say that “it’s just democracy” that led to the abandonment of democracy, then at most that could only justify the current voters’ choice to give away their freedom. It cannot bind those who were not able to participate, either because they were too young (or not yet born) or were not yet Americans.
But of course we cannot allow ourselves to have time-limited despotism, where we say that a freely chosen abandonment of constitutional constraints is acceptable until some future date. The system has to protect itself at all times, if for no other reason than the crude reality that dictators once ensconced in power will never honor the time limit.
A government of laws is ultimately a government of men and women who honor and protect those laws. Even after elections are over, there must be serious limits on the consequences that elections can have. The future of democracy depends on it.
