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On the Constitution and the grave test that may loom before us

I wonder whether our founding document’s power to bind us might be about to face its most difficult test since the end of the Civil War.

Scene at the Signing of the Constitution of the United States by Howard Chandler Christy
Scene at the Signing of the Constitution of the United States by Howard Chandler Christy

Way back in 1987, the 200th anniversary of the “assembly of demigods” (that’s what Thomas Jefferson called it, and he wasn’t there) that drafted the U.S. Constitution in Philadelphia, my then-employer the Star Tribune allowed me to go a little crazy and write a 30-part series on the resulting document titled “Our Constitution: The Myth That Binds Us.” (It eventually came out as a book. It’s out of print, but you can usually find used copies on Amazon).

By calling the Constitution a “myth” (although it is actually a concrete physical piece of parchment, plus amendments), I meant “the Constitution” as the imaginary perfect system in which Americans are raised to believe, like the Bible. 

By “Binds Us,” I referred to the belief in the power of the Constitution to keep the U.S. system of politics and democracy and guarantees of fundamental rights on track. Except for a small matter of the Civil War, belief in this system has kept the country together and fairly democratic and somewhat governable for two-and-a-third centuries.

But what does “on track” mean, and is our system now facing one of the gravest tests ever of going off track under the guidance, pressure, ignorance and megalomania of the current incumbent in the White House?

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I’m very worried about the answer to that question, more worried than I’ve ever been, and I’m getting pretty old. Because the Constitution is not really “A machine that would go of itself.” That phrase, taken from poet James Russell Lowell, who said it in 1888, was used, with a slight note of irony, by Michael Kammen as the title of a cultural history of the Constitution he wrote for the document’s 1987 bicentennial. (It’s a brilliant book.)

My thought this morning is to push on that “myth that binds” quote. And to wonder whether its power to bind us might be about to face its most difficult test since the end of the Civil War.

The system that now governs U.S. politics and government has much less to do with anything the Framers thought or did or wrote than you might think.

The system has “evolved,” partly by formal amendment, partly by drift, partly by power play, and partly by court rulings. The Constitution, by the way, does not say that it means whatever the Supreme Court says it means. That was itself a power grab by the early court and its chief justice, John Marshall, in the famed case of Marbury vs. Madison. Marshall asserted that power for the court. Got away with it. And now we all (or most of us) just assume that’s what the Framers and ratifiers intended. 

Donald John Trump has never read the Constitution, and his comments on it constantly display his ignorance, including his claim that the Constitution says that a president can “do whatever [he] want[s].”

 (P.S. It doesn’t say that, not even slightly.)

But “the myth that binds us” will bind us only so long as we believe in the myth. Richard Nixon resigned the presidency when it became clear he was going to be impeached. He believed in the system enough to know that, if convicted by the Senate in an impeachment trial, he would have to leave. He resigned to spare himself that ignominy and, perhaps, for the good of the country that I believe he cared about a good bit more than does the current incumbent.

No one thought to ask Trump whether he would leave if the Senate had convicted him in the impeachment trial, but he probably would have said, as he now says when asked whether he will respect the results of the November election, “We’ll have to see.” And then he would have found some lawyer willing to argue that conviction by the Senate didn’t necessarily mean that. And, one supposes, Sean Hannity would have agreed.

Trump doesn’t respect the Constitution. He respects only power (and maybe wealth). But he will soon, apparently, have a solid Republican supermajority on the Supreme Court that has been shaped by his soon-to-be three appointees. If he says he isn’t bound by the election results because he doesn’t like them, how will he be removed and by whom? We’ve never really faced this question before, because Nixon resigned.

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But the latest detail, which hadn’t occurred to me until the last couple of days but which now seems within the realm of possibility, is that Trump will pressure states, controlled by Republicans, to simply disregard the election results (if he loses those states) and choose their own slate of electors who will vote for Trump.

How crazy does this sound? You tell me. But I’ll tell you that there is nothing in the Constitution that says states have to award their electoral votes to whichever candidate wins the election in those states. In fact, there is nothing in the Constitution that says states have to hold a popular election, let alone abide by the results.

That may shock you, but get out your Constitution and check. Right at the beginning of Article II, which creates the presidency, it says:

“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress.”

It didn’t say, and it has never been amended to say, that the electors are bound by the result of the popular election in their state, nor that states even have to hold such a popular election. In the early years, many states did not. 

This year, I’m pretty sure every state will hold a popular election. I’m less sure, but fairly sure,  that Trump and his enablers will try to declare victory based on some claim that has nothing to do with honestly respecting the will of the voters. 

But, and this is my main point this morning, if Trump can get Republican-controlled legislatures in swing states in which Joe Biden may have gotten more votes, to simply assert that either Biden’s votes arrived in the mail too late or are otherwise defective, they therefore can appoint a slate of electors pledged to Trump. And I’m sad to report that the Constitution itself seems to give them that power, although nothing like it has been done since the 1850s, which is when the last holdout state, South Carolina, finally started allowing for popular vote in presidential elections (for white, male property owners).

If Trump and some cooperative state legislatures attempt the stunt alluded to above, I’m sure that would produce a big squawk, and squawk is too weak a word for what it will produce. In fact, I believe it would mark the end of democracy in America if he were to get away with it.  I’m not saying he will do exactly that. And I am not sure he could get away with it. But it’s a definite possibility. And there’s nothing in the Constitution that would clearly prevent such a move, especially as that document might be interpreted by the even-more-Trump-friendly Supreme Court that will perhaps have to decide the case. Trump specifically mentioned the need to get one more pro-Trump justice quickly confirmed because of the likely case arising from absentee ballots, which Trump contends are fraudulent at their core, unless they are votes for him, which is a different matter.

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Trump actually said, Wednesday, when asked whether he would abide by the result and cooperate with a peaceful transfer of power: 

“Get rid of the ballots and you’ll have a very peaceful — there won’t be a transfer, frankly. There will be a continuation.” 

The American experiment in democracy and popular self-government is on the line, but maybe not on the ballots, of which we need to “get rid.”