Pence, of course, resisted. Besides the vice president, perhaps the biggest hero of the post-election period was the constitutional system itself
Pence, of course, resisted. Besides the vice president, perhaps the biggest hero of the post-election period was the constitutional system itself — and the reason Pence was so stalwart was out of an abiding loyalty to that system. One year later, we should appreciate the fact that the Constitution proved a durable vehicle of representative government, and a frustration to anyone hoping to seize and wield illegitimate power.
The genius of the document is how it distributes power through federalism and the separation of powers, and explicitly prevents inflamed majorities from trampling core liberties in the Bill of Rights. Supreme Court Justice Antonin Scalia once noted how, in other countries, such assurances are merely “words on paper” because the governing documents do not “prevent the centralization of power in one person or in one party.”
The post-2020 election drama should bring home the importance of this design and the need to defend it. Yet, today the same people on the left who are most alarmed by Trump tend, perversely, to be most disenchanted with the Constitution.
The fact is that it’s much harder to steal an election when there are 50 different power centers, all with their own rules, political cultures and officeholders, rather than a centralized system in which one or two people can potentially be influenced to change the outcome. The Trump forces after the 2020 election hoped to transform Pence into this kind of one-person fulcrum that they could use to distort the constitutional system to their liking. This was the point of the notorious memos authored by conservative lawyer John Eastman. The so-called Green Bay Sweep that Trump adviser Peter Navarro brags was “a perfect plan” to try to keep Trump in office centered, too, around Pence — extensive objections to the counting of the electoral votes in Congress would, the thinking went, eventually force the vice president to suspend the proceedings altogether.
The Eastman memos are wish-casting masquerading as legal analysis. The 12th Amendment says the vice president opens the certificates from the Electoral College, and that “the votes shall be counted,” which the memos implausibly interpret to mean the votes are counted by the vice president himself, rather than by Congress. No vice president had ever claimed such powers under the 12th Amendment before. Further, as my National Review colleague Dan McLaughlin points out, it is preposterous to believe that a Jeffersonian Congress intended this when it proposed the amendment prior to the 1804 election. The vice president at the time was none other than Aaron Burr, who had tried to rob the 1800 presidential election from Thomas Jefferson — catalyzing the push for the 12th Amendment in the first place.
If federalism didn’t help Trump’s cause, neither did the separation of powers. The United States doesn’t have a British-style parliamentary system in which the head of government is also the head of his or her party in the legislature, which obviously would have given Trump much more leverage. Nor does America have a unicameral legislature; power is inherently less concentrated in the design of our Congress, with its upper and lower chambers.
In 2020, Democrats controlled the House, and Republicans controlled the Senate, complicating any plan to rely on Congress to hand the election to Trump. One route was to throw the election to the House, which would vote by state delegation for president. Republicans controlled 26 of those delegations. Our federal system, though, made even this more complicated than it seemed. Rep. Liz Cheney (R-Wyo.) constituted the entirety of the Wyoming delegation, and obviously she would not have gone along with Green Bay Sweep or any other similar plan.
It is quite possible that, should Trump run again, Republicans would have unified control of Congress in 2024. This would be an advantage for him if he tried to nullify a loss again. Still, bicameralism wouldn’t be his friend. Judging by the current dynamic in the House Republican Conference, Trump might be able to muster a House majority for whatever he wanted. But in the Senate? Because it’s a different body, with a different institutional culture and different types of people serving, it’s hard to see Trump ever getting a majority of his own party for some hugely consequential, infamous scheme.
The Constitution provides another layer of protection in the courts. Whether the judges were appointed by Republicans or Democrats, the courts almost uniformly ruled against Trump’s legal claims. The Supreme Court threw out an absurd suit from the state of Texas contesting the outcomes in various swing states. Our system, in other words, held.
Given the left’s alarm that Trump could attempt a reprise of 2020 in the next presidential election, you might expect Democrats to be defending the constitutional order and working to limit the president’s ability to act unilaterally beyond his constitutional powers. Instead, they are doing the opposite: applauding President Joe Biden’s sweeping eviction moratorium and OSHA-imposed vaccine mandate; pushing to nationalize the country’s voting rules; playing with the idea of destroying the legitimacy of the Supreme Court through court-packing; and intellectually and rhetorically tearing at the fabric of the Constitution as a racist relic unworthy of the 21st century.
If the return of Trump is an existential threat, the left should want to make it clear, in thought, word and deed, that all presidents have to abide strictly by the Constitution in all circumstances. They should seek to maintain a highly decentralized election system. They should work to buttress the standing of the Supreme Court. And they should hold up the Constitution as a time-tested bulwark of our liberties. Instead, we have seen the opposite — because doing any of these things makes it harder to pursue the progressive project. Our system must be defended against these forces as well.
The academic Corey Robin articulated this with admirable forthrightness in a recent essay for POLITICO Magazine headlined, “Republicans Are Moving Rapidly to Cement Minority Rule. Blame the Constitution.” Robin argues it isn’t Trump per se who’s the threat to majority rule, but how the Constitution itself is abidingly undemocratic, in part because of the important role it gives to states large and small. It’s true that states have wide latitude in our system, something that allowed, for instance, for deep-blue California to keep governing itself largely according to its own lights even when Trump was president. Of course, twice in recent memory Republicans have won presidential elections despite narrowly losing the popular vote, thanks to the Electoral College, another expression of the institutional power of the states. Political geography changes over time, though, and the advantage that Republicans currently have in the Electoral College won’t last forever.
That the Constitution makes it hard to get things done in Washington, another charge in the indictment against it, serves an important function. It forces parties to win big majorities if they want to forge transformational changes, or to mobilize public opinion behind their agendas in a powerful way. Otherwise, the gravitational force of the system is toward consensus. We see this in the debate over the voting bills Democrats are now pushing. While they are unlikely to get these bills through with their razor-thin, probably transitory majorities, there is clearly an opening to pass reforms to the Electoral Count Act. Changes to that law, which governs how electoral votes are counted, would be bipartisan and actually responsive to the most important, Pence-centric element of Trump’s post-election push in 2020.
Instead, many Democrats are entertaining ideas that reflect a sense of frustration that the Constitution stands in their way. That’s the very same frustration that characterizes the Eastman memos.
The New York Times ran an editorial this week arguing that “every day is Jan. 6 now.” That is clearly overwrought. But the Constitution is indeed always under threat, and it falls on its friends to defend it from all challengers.
www.politico.com