Democrats have consistently hammered Trump on what they see as his unconstitutional actions, including his initial Muslim travel ban (the Supreme Court declared the third iteration legal), declaration of a national emergency to fund his border wall and, of course, pressuring Ukraine to investigate his political enemies.
It is, of course, good and necessary to fight these violations. But the United States’ hopes for defending itself from Trumpism do not lie in the Constitution.
While many Americans celebrate the Constitution as a document that protects individual liberty and empowers the citizenry, it was created for the opposite purpose. The men who met in Philadelphia in 1787 sought to design a new federal Constitution that would limit popular influence on government and ensure that elites would rule.
Back then, “democracy” was a dirty word that connoted disorder and mob rule. The convention delegates agreed on the need to restrain the democratic excesses that the American Revolution had unleashed. Rather than a government by the people, they would create a government by the best (meaning wealthy, well-educated) people who would govern to protect the interests of the propertied. After all, they believed that only those whose fortunes freed them from daily toil had the time, character and independence to lead the young nation to stability and prosperity.
To achieve elite rule, the Founders created large electoral districts for the House of Representatives to inhibit ordinary men from gaining election. No one but the wealthy would have the influence and resources to win the support of 30,000 constituents. The large districts would also, according to James Madison, provide “defence against the inconveniences of democracy” by ensuring that ordinary citizens would have difficulty uniting to influence their representatives.
Unlike the House’s representation by population, in the Senate, every state would have two senators, chosen by state legislatures, not popular vote. While the 17th Amendment established the popular election of senators, equal representation means that currently Wyoming’s 579,315 residents have the same representation in the Senate as California’s nearly 40 million. The Senate’s insulation from popular influence was by design. The Founders hoped that the Upper House would be composed of America’s natural aristocracy, who would check the people’s branch if it ever threatened the wealthy. Landholders “ought to be so constituted as to protect the minority of the opulent against the majority,” declared Madison.
The Founders also decided that the president and vice president would be chosen by an electoral college — and they expected the electors to exercise individual judgment, rather than following the popular vote. Unlike ordinary voters who might be ill-informed or self-interested, the Founders believed that the (presumably) elite electors would be better qualified to make such an important choice.
The Founders also empowered the non-democratically elected president to appoint federal judges for lifelong terms. They believed that lifetime appointments protected judges from influence by the people or the other branches of government.
Setting aside the racist and sexist standards of the time, even for white men, the resulting Constitution was an anti-democratic document. And many elites celebrated the achievement. Alexander Hamilton wrote with glee that it enjoyed “the good will of most men of property” who wanted a strong federal government to protect them from “the depredations which the democratic spirit is apt to make on property.”
Today, praising the Constitution as the foundation of American liberty obscures who created it and why. It evades the question of whether a system of government designed by a sliver of the population in the 18th century is fit to rule a diverse nation in the 21st. And it avoids the reality that so much of the negotiations at the constitutional Convention were about assuring slavery’s place in the new republic.
While subsequently passed amendments have aimed to adjust the document to changing times and standards, its anti-democratic core remains. It has ensured that running for any kind of federal office requires vast amounts of money, and that those who win the presidency are almost always wealthy white men. It has meant that most people will never meet their congressperson or senator. And, perhaps most importantly, it has empowered the electoral college to override the will of the people on five separate occasions (so far), including twice in the past two decades.
Democrats can and should seek a constitutional remedy to remove Trump. But we need to confront the idea that a president who lost the popular vote by millions, deceives the public, attacks the press and does not have the confidence of the majority of Americans may not be a distortion of the constitutional order, but a feature.
The Founders waged a counterrevolution to rein in democracy, check the people’s power and fortify elite control. Two centuries later, Trump is the result. His actions may violate the Constitution with alarming regularity, but the ascension to the presidency of an unpopular billionaire who distrusts and demeans wide swaths of the American population certainly aligns with its spirit.
Worshiping the Constitution as a sacred text is not patriotism, it’s fanaticism. We can continue to pray to it, but it won’t save us. It is high time to address the anti-democratic foundations of American government.