The Democratic Party is screwing up its opposition to President-elect Donald Trump. They can’t help it.
The reason why is that democrats — that is, small “d” democrats, referring broadly to people who believe in democracy — are ill-suited to address the threat posed by Donald Trump.
Those of us who agree with the Declaration of Independence that governments derive their legitimacy from the consent of the governed are poorly equipped to resist Trump. Those of us who agree that governments exist to secure “certain unalienable Rights” are fighting with one hand tied behind our backs.
We have brought a sheet of parchment and a set of abstract principles to a knife fight. We’re going to get cut.
That’s because believers in liberal democracy — people who believe generally that the theory laid out in the Declaration’s preamble is correct — must constantly fight a two-front war. We must defend the structures of liberal democracy while working within those structures to grasp the levers of power and use them to achieve just ends.
Trump is a paradox within democracy . . . to declare him illegitimate is to shake the foundations of the American system, but to fail to do so is to risk leveling those foundations to the ground.
But Donald Trump — and the Republican Party generally, with its tactics of voter suppression, gerrymandering, and political litigation — threatens liberal democracy on both fronts. Trump is a paradox within democracy, a leader elected in a constitutionally legitimate process who seeks to undermine the Constitution itself.
To declare him illegitimate is to shake the foundations of the American system, but to fail to do so is to risk leveling those foundations to the ground.
And so Democrats, including the two most high profile Democrats of all — Barack Obama and Hillary Clinton — defaulted to their ordinary posture of declaring the winner of the Electoral College a legitimate president with whom they are eager to work where they can find common ground.
It’s the right posture, nearly all of the time. Liberal democracy depends on the peaceful transfer of power from losers to winners. But what happens when the winner threatens democracy itself?
There are no good answers to this question. And neither Democrats nor democrats are well-prepared for what comes next.
Justice Marshall’s dilemma
In 1993, just four days after President Bill Clinton placed his hand on a Bible and swore to “protect and defend the Constitution of the United States,” America mourned its greatest lawyer. Thurgood Marshall, America’s first black justice, the man who stood down lynch mobs in defense of innocent men and who restored the Constitution’s promise of equality through the sheer force of his reason, was dead. His successor and opposite, Justice Clarence Thomas, already held his seat on the Supreme Court.
One of the mourners was Elena Kagan, then an obscure University of Chicago law professor. During the term when she clerked for Justice Marshall, Kagan wrote in a tribute to the justice, the Court heard Torres v. Oakland Scavenger Co., a case brought by several Hispanic plaintiffs alleging that they were victims of employment discrimination. Due to a clerical error by his lawyer’s secretary, the name of one of these plaintiffs was inadvertently left off a court filing. The question, which the Court answered in the affirmative, was whether this small mistake was fatal to this plaintiff’s case.
The young Kagan, then at the beginning of her legal career, begged Marshall to oppose such a draconian result. But the architect of Brown v. Board of Education was unmoved. “The Justice,” Kagan recalls, “referred in our conversation to his own years of trying civil rights claims.” When Marshall was alone in a courtroom with a racist white jury and a Southern judge, he “couldn’t hope,” and he had “no right to expect, that a court would bend the rules” to save his client. All Marshall could hope for “was that a court didn’t rule against you for illegitimate reasons.”
Justice Marshall taught Kagan that “it was the very existence of rules — along with the judiciary’s felt obligation to adhere to them — that best protected unpopular parties.” A liberal who casts aside the rule of law today because the cause seems just will have no ground to stand on tomorrow when the strong arm of the state is brought to bear against them.
Which brings us back to Donald Trump.
Trump is, for whatever else he may be, the constitutionally legitimate President-elect of the United States. Sure, Democratic candidate Hillary Clinton received more than 2 million more votes than Trump. Sure, Clinton may have lost several key states because of the FBI Director’s decision, in violation of longstanding Justice Department policy, to release misleading information about Clinton just days before the election. Sure, a hostile foreign power may have actively sabotaged Clinton’s campaign with strategic email hacks. Sure, Republican lawmakers enacted a bevy of laws intended to keep Democrats from turning out to the polls. Sure, Trump is a racist and a sexist who shows open contempt for the principles of constitutional government.
But our Constitution lays out a bizarre, arcane, anti-democratic process created for the specific purpose of protecting the political power of slave states. And Donald Trump won under that process. For the same reason that the Hispanic plaintiff in Torres must lose, Donald Trump must be the next President of the United States.
Yet the dilemma for Democrats — and for democrats — is that the current stakes are much higher than a single employee getting kicked off a single lawsuit. After Torres, employment discrimination remained illegal. Lawyers were on notice not to make the same paperwork error that damned the plaintiff in that case. Employers knew they couldn’t count on such a freak mistake to bail them out if they violated the law.
Trump, by contrast, threatens our entire democratic system. He openly relies on voter suppression. He attacks freedom of speech. He threatens to jail his political opponents. He suggested stripping citizenship from political dissidents. His nominee to be the next attorney general prosecuted a former aide to Dr. Martin Luther King Jr. after this former aide helped black people vote.
Liberals are built to defend the rule of law. It is, as Justice Marshall warned, our only tool against entrenched, powerful interests that can win either by working within the system or by destroying it altogether. Yet, in defending it now, we risk propping up a virus that will turn that system against itself.
The outgoing President of the United States, for what it is worth, is betting that Justice Marshall’s rules still hold in the age of Trump. President Obama reportedly called Clinton, his former secretary of state and chosen successor, on election night to tell her that “you need to concede.” Days after the election, Obama explicitly placed Trump’s constitutional legitimacy before his democratic illegitimacy.
“The people have spoken,” Obama told a press conference. “Donald Trump will be the next president . . . . And those who didn’t vote for him have to recognize that that’s how democracy works. That’s how this system operates.”
Hillary Clinton, for her part, quickly fell in line. “I still believe in America and I always will,” Clinton told shell-shocked supporters in her concession speech the day after the election. “And if you do, then we must accept this result and then look to the future. Donald Trump is going to be our president. We owe him an open mind and the chance to lead.”
If you believe in America, then you must accept that the man who received more than two million fewer votes than Clinton — the man who claimed that a judge with Mexican ancestry cannot fairly decide cases and who bragged about sexually assaulting women — is going to be our president. The price of believing in America is high.
Indeed, Trump could not ask for a better ally in his quest to legitimize his own presidency than the Clinton campaign.
On Saturday, in response to — admittedly rather doubtful — claims that polling machines were hacked to swing the election in favor of Trump, Clinton lawyer Marc Elias poured cold water on these allegations. “We had not uncovered any actionable evidence of hacking or outside attempts to alter the voting technology,” Elias wrote in a post on Medium. He added that “the number of votes separating Donald Trump and Hillary Clinton in the closest of” the contested states “well exceeds the largest margin ever overcome in a recount.”
It took Jill Stein, the vaxxer-curious WiFi truther who dined at Vladimir Putin’s table during an event celebrating a Russian propaganda station, to call for a recount in these states. (Notably, the man seated immediately to Putin’s right at that same event was retired Lt. Gen. Michael Flynn, Trump’s national security adviser.)
And how did Trump reward Clinton’s efforts to prop up his presidency and deflate allegations of malfeasance than could undermine the Trump administration? By tweeting out a completely baseless conspiracy theory about millions of illegal voters inflating Clinton’s vote count.
A dangerous game
I remember, vividly, the day George W. Bush was elected in 2004. Early exit polls showed Democratic candidate John Kerry with a solid lead over the incumbent. At a party one of my law school classmates hosted to watch the election returns, future lawyers slurped down blue and red Jello shots and waited to hear that Kerry had carried Ohio. But that call never came. Like millions of other liberals at thousands of similar parties across the country, we returned home heartbroken, many of us reduced to tears.
Yet, while this disappointment was undoubtedly shared by Democrats in Washington, they also knew how to resist President Bush in a democratic system. Rallied by Leaders Harry Reid (D-NV) and Nancy Pelosi (D-CA), Democrats killed Bush’s plan to privatize Social Security (in response to lawmakers who wondered when Democrats would release their alternative to Bush’s proposal, Pelosi famously responded “Never. Does never work for you?”). Democrats highlighted Bush’s failed response to Hurricane Katrina, and they largely united in opposition to the Iraq War.
And then, in 2008, they found one of the most talented politicians of his generation among their ranks, and they elected Barack Obama president.
Democrats, in other words, used the tools of democracy itself to unseat the Republicans. They convinced voters that they had a better plan for the country than the governing party. And they won.
But in the early days of the Obama presidency, Republicans set out to undermine the very system that allowed the new president to govern. Republicans on the Supreme Court gutted a key provision of the Voting Rights Act. Republican state lawmakers enacted a wave of voter suppression laws. Republican governors backed legislation designed to hobble unions, dismantling a major base of Democratic support in the process. Gerrymandering locked in Republican control of the House of Representatives, preventing Democrats from governing even after their House candidates received more votes than their GOP counterparts in 2012. And similarly gerrymandered maps locked in control of state legislatures.
In 2013, for example, Democrats swept all three statewide offices in the Commonwealth of Virginia, but Republicans captured a 67–33 supermajority in the state’s House of Delegates. Pennsylvania elected a Democratic governor in 2014, yet Republicans enjoyed a 120–83 majority in the state house and a 30–20 majority in the state senate.
And these trends are only likely to continue under President Trump. With both houses of Congress and the White House under their control, GOP lawmakers could pass national legislation similar to the anti-union bill Gov. Scott Walker (R) signed in Wisconsin, or even ban unions altogether. They could enact the most aggressive state voter suppression laws at the federal level, conduct nationwide purges of voter rolls, criminalize common types of voter registration drives, repeal what remains of the Voting Rights Act, and supply Attorney General Jeff Sessions — a man who knows something about voter suppression — with an army of lawyers and federal agents tasked with intimidating Democratic voters and activists.
Meanwhile, they could cut off much of the information voters need to participate in a democracy. As my colleague Ned Resnikoff warns, agencies like the Bureau of Labor Statistics, which are tasked with providing accurate data about issues such as job growth, could eventually be staffed with cronies who report baked numbers. In the worst case scenario, as Vox’s Matt Yglesias lays out, Trump could use his regime to reward companies that treat him well and punish those that displease him — eventually turning America’s entire economic apparatus into a means of preserving his rule.
Would such efforts be unconstitutional? Many of them would be. But that won’t matter much if Trump controls the judiciary. And he’ll have a head start in that regard thanks to Senate Majority Leader Mitch McConnell’s (R-KY) successful tactic of holding open a seat on the Supreme Court until a Republican was elected to the White House.
The biggest danger of a Trump presidency and a Republican Congress isn’t that they may enact terrible policies. It is that they might entrench their own rule in ways that cannot be easily undone.
All of which is a long way of saying that the tools of American liberalism, and the Democratic Party that relies on these tools, are poorly suited to the particular threat Donald Trump presents to democracy — and that the Republican Party frankly began to present almost immediately after Barack Obama took office. By propping up Trump’s constitutional legitimacy despite his democratic illegitimacy, Clinton and Obama appealed to the rule of law. But what happens when the rule of law is turned against itself?
What happens when the president may owe his victory to a longstanding Republican campaign to undermine the sanctity of our democracy? And what happens if that president perfects that campaign?
The biggest danger of a Trump presidency and a Republican Congress isn’t that they may enact terrible policies. It is that they might entrench their own rule in ways that cannot be easily undone.
This is the part of this essay where I’m supposed to offer solutions. But the truth is that America has probably crossed a red line that our new leaders will not readily allow themselves to be dragged back across.
Illiberalism breeds illiberalism. If companies grow dependent on the regime for patronage, as Yglesias suggests they might, then the regime itself gains power. And that increased power enables the regime to foster greater dependence among those companies, which again increases the regime’s power.
Similarly, as Slate’s Jamelle Bouie warns, “now that white nationalism sits at the center of our politics, figures on both sides will reconcile and accommodate themselves to it.” We can’t unlearn the fact that, even after the election of Barack Obama, a man can become president by running an openly racist campaign, so future campaigns will tailor their messages accordingly. Worse, as voters of color (and other traditional Democratic constituencies, such as low-income voters and young people) lose their electoral voice due to voter suppression, both parties will have less and less reason to appeal to these voters. New voters suppression laws will become easier to enact, as the targets of such suppression lose their advocates in government.
Meanwhile, even if Trump is resoundingly defeated in 2020 and Republicans relegated to the same sort of oblivion they found themselves in for much of 2009, the next president will still face a Republican Supreme Court. In 2012, the Supreme Court came within a hair of repealing the entirety of Obamacare based on an outlandish legal theory that Judge Laurence Silberman — a conservative icon who received the Presidential Medal of Freedom from George W. Bush — denounced for having no basis “in either the text of the Constitution or Supreme Court precedent.”
Four years from now, especially if Trump replaces any one of the elderly Justices Anthony Kennedy, Ruth Bader Ginsburg or Stephen Breyer, the Supreme Court is likely to be both more conservative and more partisan than it was in 2012. Democrats could sweep into office after four disastrous years of Trump, only to find out that five men with lifetime appointments will prevent them from enacting any meaningful legislation.
Thurgood Marshall warned that preserving a just system often requires granular instances of cruelty. But Marshall also helped lay waste to Jim Crow because he was able to call upon a higher power than the state governments that viewed black citizens as something less than human. Federal courts, and ultimately, federal legislation, broke the back of Southern apartheid.
But a Trump regime, buoyed by a Supreme Court stacked with Trump justices, is subject to no such higher power.
To be sure, there are steps that liberals and democrats of all stripes need to take to prevent those hooks from taking root. Journalists, in particular, should read Resnikoff’s essay on how Trump distorts our sense of truth, and they must follow his calls to “refuse to treat him like a normal president,” to “refuse to bestow any unearned legitimacy on his administration” and to recognize that any “privileged access to the Trump White House” is likely to come at the price of meeting demands for misleading coverage.
If liberal democracy survives these next four years, then liberals must confront the fact that our current system of government has failed.
Similarly, every American should read Yale History Professor and Holocaust scholar Timothy Snyder’s “20-point guide to defending democracy under a Trump presidency.” Among his most important words of advice are “do not obey in advance,” to be wary if the Trump regime attempts to use a terrorist attack or similar tragedy to consolidate its power, and to adhere — especially if you are a lawyer, judge, government worker or other individual who may be called upon to shepherd Trump’s goals into fruition — to professional ethics.
If liberal democracy survives these next four years, then liberals must confront the fact that our current system of government has failed. We cannot have a system that makes a president out of the guy who came in second in the presidential election twice in sixteen years, or that allows lawmakers to suppress the vote of their opponents’ supporters, or that allows those same lawmakers to effectively choose who gets to vote for them, or that allows the minority party to sabotage a president’s entire agenda and then campaign on the fact that nothing gets done, or that places the entirety of American democracy at the mercy of a political court.
Yet we must also balance this terrible new knowledge with Justice Marshall’s broader lesson that the rule of law depends on universal rules. In the state of nature, the strong man always prevails. It is only by subjecting everyone to the same laws that the rest of us can hope to hold this strong man accountable for his own transgressions.
What the rule of law does not depend on, however, is the specific set of rules we currently operate under. “Whenever any Form of Government becomes destructive” of basic human rights including the right of self-governance, the Declaration of Independence proclaims, “it is the Right of the People to alter or to abolish it.”