What does it mean to say that “democracy is on the ballot” on Election Day?
In her speech Tuesday in Washington, D.C., delivered from the same place near the White House where Donald Trump incited a crowd to attack the Capitol on Jan. 6, 2021, Vice President Kamala Harris said it was a question of whether Americans “have a country rooted in freedom for every American” or whether they have one “ruled by chaos and division.”
It was a question, she said later in her remarks, of whether the United States would “submit to the will of another petty tyrant” and become a “vessel for the schemes of wannabe dictators.”
The vice president was not wrong. Election Day will be a referendum on whether we want an autocrat in office — a plebiscite, of sorts, on the very idea of government of the people, by the people and for the people. But Harris’ answer is incomplete. Also at stake Tuesday, when it comes to the question of American democracy, is the future of the Constitution.
Will it continue into the 21st century as Frederick Douglass’ “glorious liberty document,” or will it legitimize an American-style authoritarianism as a new “covenant with death,” to use the words of Douglass’ erstwhile abolitionist ally, William Lloyd Garrison.
It is important to remember that the Constitution was neither written nor ratified with democracy in mind. Just the opposite: It was written to restrain — and contain — the democratic impulses of Americans shaped in the hothouse of revolutionary fervor.
“Most of the men who assembled at the Constitutional Convention in Philadelphia in 1787 were also convinced that the national government under the Articles of Confederation was too weak to counter the rising tide of democracy in the states,” historian Terry Bouton writes in “Taming Democracy: ‘The People,’ the Founders, and the Troubled Ending of the American Revolution.”
The framers’ Constitution would tamp down on and bind the democratic energies of those Americans who thought their revolution stood for something more egalitarian — more revolutionary — than what its leaders and leading figures imagined. It would channel democratic energy through divided institutions backstopped by counter-majoritarian rules and requirements, each designed to make it as difficult as possible to turn popular energy into governing majorities.
In short, the founders built a limited, exclusionary government centered on elite management of the people’s affairs. But by the start of the 19th century, it was clear that the people would not allow the Constitution to contain their democratic impulses and aspirations. The American Republic would not be as limited or as exclusive as the framers had envisioned.
Broad literacy and the wide availability of newspapers, pamphlets and books brought a vibrant culture of political debate and contestation. The emergence of organized political factions and, later, formal political parties brought large numbers of Americans into the political process, transforming the very nature of the union.
As Americans democratized their culture, their Constitution followed. They reshaped their constitutional order around political parties and embraced mass political participation as an integral part of the system.
You can see the vibrancy of this early form of American democracy, as exclusive as it still was, in the multitude of movements and minor parties that emerged throughout the antebellum period. There were Know-Nothings and Anti-Masons and Free Soilers, Liberty Party partisans and groups like the Wide Awakes.
“In America,” Alexis de Tocqueville observed during his tour of Jacksonian America, “democracy is given over to its own inclinations. Its pace is natural and all its movements are free.”
Out of the contradictions of America’s nascent democracy came a catastrophic civil war. And out of the practical and ideological demands of that war came the most expansive, and to that date most inclusive, vision yet for American democracy, encoded in a set of amendments that reconstituted the union as a nation. The 13th Amendment abolished chattel slavery. The 14th Amendment enshrined birthright citizenship and guaranteed the “privileges and immunities” of that citizenship. And the 15th Amendment outlawed racial discrimination in voting, giving Congress all the authority it needed to enforce that prohibition.
It should be said here that it wasn’t simply the act of amendment that changed and further democratized the Constitution. A political document as much as a legal one, its character and meaning are realized as much through practice and the everyday challenge of making it work as they are in law and legislation. Which is to say that if the Constitution that emerged out of the Civil War was more democratic than the one that helped produce that war, a good part of that was because Americans themselves, like the freed people of the South, fought to realize their democratic aspirations.
They were joined, in subsequent decades, by Americans of many other backgrounds. Over the next century, and through great effort, American democracy would grow in fits and starts to include women and a broad variety of immigrant groups. And while Black Americans would suffer under the long night of Jim Crow, they would continue their struggle for equality, inclusion and recognition.
We were not given a democratic Constitution; we made one. We unraveled the elitist and hierarchical Constitution of the founders to build something that works for us — that conforms to our expectations.
But nothing is permanent. What’s made can be unmade. And at the foundation of Donald Trump’s campaign is a promise to unmake our democratic Constitution.
Consider his priorities. He wants to use the law enforcement arm of the federal government to harass his opponents and exact “retribution” on his political enemies.
“I will appoint a real special prosecutor to go after the most corrupt president in the history of the United States of America, Joe Biden, and the entire Biden crime family,” Trump said last year. In September, he threatened “Lawyers, Political Operatives, Donors, Illegal Voters, & Corrupt Election Officials” with “long- term prison sentences” if they are found guilty of voter fraud, which Trump seems to equate with any form of political opposition.
Trump also wants to deport tens of millions of people from the United States, which will inevitably include American citizens, whether they’re the children of immigrants in the country illegally or students protesting for Palestine. “Immediately after taking the oath of office, I will launch the largest mass deportation program in American history,” Trump said at an event in Texas last week.
To accomplish this, the former president intends to use the 1798 Alien Enemies Act, which allows the president to detain and deport noncitizens from countries at war with the United States. The idea, if it needs to be spelled out, is to classify illegal immigration as an act of war and use the law to remove foreign nationals from the United States without due process. To obtain the personnel necessary to carry out deportations on such a large, national scale, Trump would deputize local and state law enforcement as well as deploy the National Guard.
It is not just that Trump would attempt these power grabs — which would, on their own, introduce a level and degree of state repression heretofore unseen in American history — but that he would have the support of a legal and political movement eager to constitutionalize his actions as a legitimate exercise of presidential power. Trump would act in an authoritarian manner, and his allies would then write that authoritarianism into the Constitution.
That, in fact, is what the Supreme Court did in Trump v. Hawaii, when it turned a blind eye to the clear evidence of racial and religious bigotry driving the former president’s “travel ban” (neé Muslim ban) and freed the administration to impose its restrictions under a theory of broad (or perhaps a better word would be “credulous”) deference to the executive branch.
The court took a similar approach this year in Trump v. United States, when it gave the president a broad grant of criminal immunity from prosecution for “official acts.” Rather than reckon with the overwhelming evidence that Trump abused the office of the presidency in an illegal effort to overturn the results of an election he lost, what is in effect the Republican majority on the court turned the plain meaning of the Constitution on its head, freeing future presidents — including, perhaps, a future President Trump — to abuse their power under cover of law.
More so than most of his predecessors, Trump strained against the limits of the presidency. He never understood that the office was bound by higher law — that his power wasn’t absolute. He never understood that he was an officer of the Constitution and a servant of the people; he never understood that he was a subject and not the sovereign.
It was because of this fundamental misunderstanding — itself tied to his bottomless solipsism — that Trump tried to twist and turn the presidency into an extension of his ego. To the extent he failed to accomplish this, it was only because he was stymied by those around him — officials who chose to honor their commitment to the Constitution over the interests of one man. Those same officials now warn that if he is given another term in office, he will rule as a tyrant.
America got lucky. It won’t get lucky again. Free of the guardrails that kept him in place the first time, affirmed by the Supreme Court and backed by allies and apparatchiks in the conservative movement, Trump will merge the office of the presidency with himself. He will shake it from its moorings in the Constitution and rebuild it as an instrument of his will, wielded for his friends and against his enemies. In doing so, he will erode the democratic assumptions that undergird our current constitutional order. And he will have the total loyalty of a Republican Party that itself is twisting and abusing the counter-majoritarian features of the American system to undermine and unravel democracy in the states it controls.
“Democracy is never a gift bestowed by benevolent, farseeing rulers who seek to reinforce their own legitimacy,” historian Sean Wilentz writes in “The Rise of American Democracy: Jefferson to Lincoln”:
It must always be fought for, by political coalitions that cut across distinctions of wealth, power and interest. It succeeds and survives only when it is rooted in the lives and expectations of its citizens and continually reinvigorated in each generation. Democratic successes are never irreversible.
Most Americans have only ever lived in a world where democracy was secure, where democracy was assumed. On Tuesday, we’ll decide if we want to stay in that world or leave it behind.
This article originally appeared in The New York Times.
