Thomas Dumm — The Election of Trump and the Constitution’s Original Sin

Joe Scarborough is productive.

Thomas Dumm
Amherst College

The immediate post-election normalization of the fascist white-nationalist klepto-capitalist president-elect Donald Trump has caused quite a bit of head-spinning among attentive observers of corporate news media over the past month. Progressive websites especially have noted repeatedly and with increasing distress that the meaning of this unexpected turn of events is that it signals a new form of an old tendency in American politics. The “new” part is an open embrace of white nationalism and authoritarianism by the incoming administration. But there has been no focus on the incipient fascism at work here. Indeed, from the day after the election, commentators such as Joe Scarborough on MSNBC’s “Morning Joe,” have declared that the term “fascism” should be retired, as it isn’t productive. The idea seems to be that if he is elected president, by definition he can’t be a fascist.

Readers of the Contemporary Condition have been treated to Bonnie Honig’s brilliant reading of this normalization process in her “Trump’s Upside Down” on November 14th. (Indeed, as I have been writing this post, I heard yet another reporter on MSNBC refer to “the white nationalist community.”) And there is no doubt that other contributors to CC have been prescient in reading Trump and the fascism he practices from early on in his campaign. (See my “Degraded Fascism, Nihilism, and Donald Trump” and “The End of Boehner” from the fall of 2015, and Bill Connolly and Steve Johnston’s numerous posts over the stretch of this election, dating from 2015.) I have greedily read numerous essays on such blog sites as The Huffington Post and Salon seeking confirmation of the fascism underlying what I have been reading, watching and listening to since the election, trying to fight the gas-lighting of cable news networks, which keep insisting that there is nothing to see here.

There is something else that has been normalized in this post-election period, largely because of a relative silence concerning it, that deserves deeper attention than it has so far received. That is the fact that in almost any representative democracy’s electoral system, Trump would have lost, and the Republican Party’s Congressional and Senate majorities would have been won by the Democratic Party. It has been noted repeatedly that Hillary Clinton received over two million more votes than did Donald Trump (as of this writing, 2.53 million more votes). Less widely noted is that, for the fourth consecutive election, more voters chose Democratic candidates for Congress and Senate than they did Republicans. In the past, such an outcome, in itself, even without the disastrous candidate who benefited from it, would have been treated as the most important part of the electoral story. But it hasn’t this time.

What’s going on? We all realize that the permanent and unchanging structure of the US Senate guarantees equal representation for all states in the senior body of Congress (the only provision in the Constitution that is not changeable is the guarantee of the permanent existence of the Senate – see Article V) and the gerrymandering of House districts has made the climb for Democrats to electoral success extraordinarily steep. But throughout the campaign, one of the false narratives in the national political media – hello Chuck Todd -- was that the Democrats enjoyed an Electoral College “lock.” Unnoticed, or unnoted, was that there was a systematic voter suppression campaign going on that focused on precisely the key states that eventually went to Trump. North Carolina, Pennsylvania, Wisconsin, Florida, and Michigan all had in place effective voter registration laws restricting minority voting. This suppression was enabled by the Supreme Court, which because of continued unequal representation in elections, has been chosen predominately by Republican presidents over recent decades. In other words, the very structure of political representation in the United States is quasi-apartheid in character. But we aren’t supposed to say such rude things.

This is the fifth time in American history that the winner of the popular vote has been denied the Electoral College win. In those five elections, it was the generally the Right that won. The conservative but reform-minded Democratic governor of New York Samuel Tilden’s loss in the notorious election of 1876 was a pyrrhic victory for the Republicans, as it resulted in the devil’s bargain that ended Reconstruction, a huge win for the Right. And the elections of George W. Bush and Donald Trump can be seen as twin triumphs of right-wing minorities. In the election of 1824, John Quincy Adams defeated the populist Andrew Jackson, though he lost the popular vote by what still is the largest percentage in American history, thus leading to the founding of the modern Democratic party. The election of William Henry Harrison over Grover Cleveland in 1888 could be interpreted as the right winning over the left, though the issues in that election didn’t line up in a sense we would recognize contemporarily.

What does this brief excursus through electoral history suggest for us? In two of the past five elections -- though if one squints closely at the returns from Ohio in 2004, one might conclude that John Kerry was robbed of the electoral votes of that state, and could have become a minority Democratic president had electoral college justice prevailed – right-wing minorities have taken power against the wishes of those who cast the most votes, and did so against them. (Relevant details.) 

Most commentators, when criticizing the Electoral College, note two things – first, that by the Constitution’s use of the formula “number of representatives based on population plus two Senators in each state” there is a distortive effect which results in small states attaining inordinate power, compared to larger states (for example). Others note that since almost all states have adopted the winner-take-all formula, resulting in every electoral college vote going to the person who gets the most votes, large majorities in states such as New York and California, on the Democratic side, and Texas, for instance, on the Republican side, don’t have the same representative power that tiny majorities in swing states have.

"This map shows each state re-sized in proportion to the relative influence of the individual voters who live there. The numbers indicate the total delegates to the Electoral College from each state, and how many eligible voters a single delegate from each state represents." (source)

But for all of the discussion of the distortive effects of the Electoral College, none of our talking heads or even “responsible journalists,” go back to the origins of its existence, or if they do so, they deflect, that is, they don’t go into the sordid roots of the compromise that led to this system of representation. For instance, in the November 21, 2016 issue of the NY Times, “The Upshot” notes “the rural vote’s disproportionate slice of power,” that is a consequence of the Electoral College, but goes on to discuss Thomas Jefferson’s (highly romanticized) vision of yeoman farmers.

While commentators seem compelled to revert to the most innocuous narrative of what was an often savagely fought debate, the heart of the Connecticut Compromise, or the Great Compromise of 1787 as it came to be called, which led to the establishment of the Senate and the Electoral College, had to do far less with the elevation of yeoman farmers and much more to do with the brute political influence of the slaveholding delegations of the Southern states at the constitutional convention. Contemporary discussions of the question of this compromise largely focus on the difference between large states and small states and their suspicions of each other – and since Virginia was a large state, and North and South Carolina, for instance, while smaller states, were predicted at the time to be likely to grow to be large – the decision to create a Senate has been seen as a way of protecting small states’ sovereignty from being overwhelmed by the populations of the larger states.

But there were two sorts of large states in play. One sort was slave-holding, the other was not. Simply put, without the Connecticut Compromise, the southern states were planning to walk away from the convention, which would have led to the dissolution of the United States. The major part of the Connecticut Compromise, aside from the creation of the Senate, was the notorious 3/5ths compromise concerning how slaves were to be counted, which was to determine the population of states for purposes of representation using the “all other persons” clause. Hence the Constitution actually was making those Southern slaveholding states large for purposes of the census, expanding the power of whites on the very bodies of black slaves. Eventually, once cotton took hold as a major crop, this compromise would result in states like Mississippi and Louisiana practically doubling their representation on the basis of their slave population.

This electoral system once more has served the right -- as it (almost) always has, given its systemic bias -- and just when we democrats think we may have overcome its most pernicious effects, it comes back and bites us in the ass. Following his election even the ignoramus Trump suggested on Twitter that some sort of reform of the Electoral College to reflect the will of the majority might be in order. Of course, he advocated this until someone – Kelly Anne Conway? -- must have whispered in his ear that he won precisely because the Electoral College doesn’t reflect that will. So he reversed course, on Twitter again praising the genius of what he had called throughout the campaign a “rigged system.” It is no accident that “post-truth” was recently designated the word of the year for 2016.

This is the sordid compromise that has permanently haunted the Constitution of the United States, and the undemocratic system of representation that “we, the people” have been subjected to for over two centuries. It is rooted in the explicit and then the tacit acceptance of the hideous system of chattel slavery, and it has never succeeded in overcoming that original sin, operating as a drag on all attempts to attain simple justice. That is because the Constitution is, by design, unequal in its representational system. All of the Constitutional lawyers in the world can’t wash their hands of the stain of it. This constitution, effusively praised by its promoters, worshipped by so many as our secular religion, and apologized for by generations of lawyers over the course of two hundred some years, needs, more desperately than ever, to be scrapped.

Interestingly enough, the fact that the Republicans now control 33 states at this point puts them one state short of being able to call for a Constitutional convention. Perhaps they will, but it is not likely, given how well the current system suits their purposes. But this is the traditional blackmail of the Constitution. Those who dominate always get to threaten something worse. (The only time their bluff was called, there was a Civil War, and even a Civil War was a two steps forward, one step back sort of deal.) Accept this constitution, they seem to say, or we will replace it with something even worse. Accept this Constitution, or we will shoot this dog.