Perhaps the greatest flaw in those initial efforts, after rejecting those Articles of Confederation, was the fundamental belief that only good “men” would rise to federal office, particularly the presidency. Fearful of a new excuse for an American monarchy, battling for fairness in what was well over 90% an agricultural/rural nation against those monied urban trade centers, those founding negotiators did not fully understand how to make democracy work. Virginia, New York, Massachusetts and Pennsylvania (with a little New Jersey thrown in) were the power players. In an effort to placate sectional interests, they left us with a bizarre electoral college, lots of election controls relegated to the states, overwhelming requirements to amend the Constitution (requiring a truly united nation), a bow to agricultural power by designating two Senators based purely on land mass (states, without reference to size… an unamendable Constitutional provision) and that wonderful and thoroughly ignored “plain meaning” of the Bill of Rights (the first ten amendments).
That level of trust never anticipated a candidate willing to pull out all the stops to win the presidency. The “good men” have been marginalized, in his autocratic, even fascist efforts; Trump managed a “free speech” killer that will linger well past this election, as the October 29th Guardian UK suggests: “Veteran journalists and media critics are using a very different phrase to describe Soon-Shiong’s and Bezos’s choice: they’re saying the two billionaires, among the richest men on the entire globe, are performing ‘anticipatory obedience’ to Donald Trump… [a] term [that] comes from On Tyranny, the bestselling guide to authoritarianism by Timothy Snyder, a historian of eastern and central Europe. The phrase describes, in Snyder’s words, ‘the major lesson of the Nazi takeover, and what was supposed to be one of the major lessons of the twentieth century: don’t hand over the power you have before you have to. Don’t protect yourself too early.’ It’s a way of describing what Europeans did wrong as totalitarians came to power: by ‘mentally and physically conceding, you’re already giving over your power to the aspiring authoritarian’, Snyder explains.”
Many Americans are justifiably scared of the mega-MAGA focus on subverting and denigrating the election process itself, perhaps a future reality American if democracy survives: “the Stop the Steal movement of 2020 has evolved into the considerably more sophisticated ‘election integrity’ movement of 2024, its success is still premised on persuading election administrators of two things that are not true: that widespread election fraud is a real and present threat to democracy and that they have not only the authority but also the legal duty to do something about it — that they must ‘do their duty’ and deny certification.
“[There is a] growing number of election officials who seemed willing to do exactly that. For them, going so far as to block certification wasn’t a partisan gambit; it was a patriotic duty. Though it might technically be illegal, it obeyed a higher law. Over months of reporting, this is what I heard again and again. For all the cynicism involved in the effort to overturn Trump’s 2020 loss, and the groundwork being laid to challenge a possible defeat this year, many officials I spoke to were clearly motivated by a deeply held belief that a grand conspiracy was underway. In the face of that, how could they agree to certify?” Jim Rutenberg for the October 28th New York Times. How did we get here? Can a form of government and an archaic and currently virtually unmendable Constitution withstand this vicious expert attack on our constitutional guardrails? Let’s look back at the Constitutional Convention of 1787 to see out this all started.
It's fairly obvious that a constitution, born of a citizen army with no real guidance as to how to fashion a democracy, was not designed to contain an autocratic party, led by a messianic zealot using a false Biblical interpretation, willing to ignore its dictates and do whatever he could to rule under a strict and profoundly undemocratic mantle. Writing for the October 29th Los Angeles Times, Joseph J. Ellis, a Pulitzer Prize-winning historian and author of an upcoming book, Realities and Regrets: The Tragic Side of the American Founding, describes these founding failures as the albatross of limitations they contain:
“As we travel back in time, there are a few features on the historical landscape unique to post-revolutionary America that will strike us as strange… One is the ghost of Britain’s King George III. The debate over executive power, as recorded in contemporaneous journals, letters and articles, is difficult to follow, like watching a soccer match played with three balls and no referees. The one conviction the delegates could all agree on was that the president must not be a monarch who stood above the law. (The recent Supreme Court decision, Trump vs. United States, fragrantly defied that core conviction.)
“The second strange-to-us feature, even more disturbing to our current political presumptions, is a deep suspicion of democracy. Throughout the American founding the word “democracy” was an epithet, and remained so until the Jacksonian era. The watchword during the founding era was ‘republic,’ from the Latin ‘res publica’ meaning ‘public things.’ The public interest, for Madison, Jefferson, Washington and the others, was the long-term interest of the people, something the founders thought the bulk of voting Americans (white male landowners) would seldom comprehend because of their limited horizons and susceptibility to conspiracy theories, misinformation and demagogues. (Sound familiar?)
“When the question of how to elect a president arrived on the agenda in August 1787, suggestions included election by the Senate, by state Legislatures and finally by popular vote in all the states. Multiple critics objected to the latter option on the grounds that popular opinion was notoriously unreliable… These raw and misguided opinions needed to be filtered through more informed and educated minds. James Madison stepped forward to coin the term ‘filtration’ and then ‘Electoral College’ to describe state legislators capable of comprehending the long-term public interest, and, if necessary, over-ruling the popular vote in the states. Alexander Hamilton endorsed this ‘filtration’ approach in Federalist 68.
“Filtering the presidential choice through electors was not designed to enhance the political power of the Southern, pro-slavery states, but that in fact is what it did. During the debate over how to count population for representation in the House, the delegates passed the three-fifths clause, basing representation on ‘the number of whites and three-fifths of the blacks.’ The political advantage the three-fifths clause gave to Southern states in presidential elections was the main reason that Thomas Jefferson was referred to as ‘the Negro president’ after his narrow victory in the election of 1800.
“The ironies of the electoral college abound. The founders did not foresee the emergence of political parties and their winner-take-all slates of electors, which make a mockery of all presumptions of virtuous choosing by a select few. What’s left is indeed a filtration of the popular vote, but one that has morphed into a device whereby the minority defeats the majority… As a result, the very outcome the founders most feared, namely election of a demagogue by a gullible cult of true-believers, has been made possible because of the electoral college, which was originally designed to avoid precisely that outcome.”
As contemporary elections have resulted in victories for presidential candidates who lost the popular vote, as the first such constitutional democracy produced a constitution that was inflexible and in polarized times, unamendable… unscrupulous candidates have exploited these weaknesses, further eroded by the current US Supreme Court bending and twisting to impose rigid conservatism in a way never intended; the fallacy of “originalism” for constitutional interpretation is a rightwing trope to ensure permanent control.
I’m Peter Dekom, and what can we do with an old, very old constitution constructed in the era of muskets and centuries before social media, where clever lawyers chip away at the clear intentions of our Founding Fathers?
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