It’s fitting that Sen. Elizabeth Warren should have chosen the Center for American Progress’s ideas conference to declare, as she did last week, that “democracy is crumbling around us.” For the death knell of democracy is one of her party’s oldest ideas, a staple of progressive nightmares from Justice Brandeis (“We can have democracy in this country, or we can have great wealth concentrated in the hands of a few, but we can’t have both”) to Bill Bradley (“Our politics is broken”).
Of course, Senator Warren may be forgiven for playing to her rapturous audience: The CAP “ideas conference” is really a place for prospective presidential candidates to distinguish themselves from the Democratic herd. And in that sense, Warren did not disappoint: “Nearly three million more people voted for Hillary Clinton than for Donald Trump,” she said. “But Trump took the presidency. That is not exactly the sign of a healthy democracy.”
If Donald Trump “took the presidency,” then democracy really is crumbling around us. But as Warren—who used to teach at Harvard Law School—well knows, Trump won the electoral vote despite losing the popular vote, and that is how we elect our presidents, as the Constitution prescribes. So my assumption is that Warren plans to rally the troops for 2020 with a call to amend the Constitution and abolish the Electoral College. Hillary Clinton has already suggested as much, and there may be a bandwagon gathering.
Truth to tell, I can understand the left-wing frustration. Five times in American history, the presidency has gone to candidates who lost the popular vote, but never to the (comparatively) progressive one. The problem, of course, is that the Electoral College reflects the fact that we’re not a “pure” democracy but a republic, a confederation of states whose powers—especially as ranged against the federal government—are enshrined in the national charter.
Liberals, however, keep changing their minds on the subject. A century ago, progressives looked benignly on the states they controlled—California, say, or Wisconsin—that were laboratories of social progress and legislation. In the civil rights era, however, states’ rights became synonymous with racism and segregation. Now, thanks to the Trump presidency, the progressive mind is not just enraged about the outcome of the 2016 contest but more ominously, about the Constitution that allowed it to happen.
I suspect that, as a practical matter, any effort to amend the Constitution and abolish the Electoral College is doomed to failure. But in the recent past, short-term politics—I would call it hysteria—has propelled successful amendments with long-term (and unforeseen) consequences. Indeed, in my view, modern constitutional amendments almost invariably cause more problems than they solve and tend to penalize proponents. Be careful what you wish for.
I would offer two examples to Elizabeth Warren and friends. When Republicans swept Congress in the midterm election of 1946, they had been out of power for 16 years and had just emerged from the shadow of the four-term presidency of Franklin Roosevelt. Their solution—the 22nd Amendment, passed in 1947 and ratified by the states four years later—limits presidents to two terms. Yet in striking retroactively at the late Democratic president, the congressional GOP effectively prevented the very next president, Republican Dwight Eisenhower, from running for a third term in 1960, which (I think) he could easily have won.
Enthusiasts of term limits, take note: The gods of politics are not mocked.
Nor are Democrats immune to bright ideas gone awry. When, in 1963, John F. Kennedy was assassinated and Lyndon Johnson succeeded him as president, there was no provision in the Constitution for appointment or election of a new vice president. Up until then, the eight presidents who succeeded deceased predecessors—or the eight whose vice presidents either died or resigned—had simply done without a vice president until the next election. And the republic somehow endured.
But in 1963, the 55-year-old LBJ had suffered a serious coronary just eight years earlier, and progressives gazed in horror at the line of succession: speaker of the House John McCormack, age 71, and the 86-year-old president pro tem of the Senate, Carl Hayden. This worrisome state of affairs yielded the 25th Amendment, which was drafted, passed, and ratified in record time and provided not only a course of action if presidents should be incapacitated in office but furnished a mechanism to appoint a new vice president as well.
Once again, the aforementioned gods of politics didn’t wait very long to make a mockery of constitutional reform. Our next vice president, Spiro Agnew, resigned from office in the wake of financial scandal (1973), and in accordance with the 25th Amendment, Richard Nixon appointed a new vice president (Gerald Ford)—who, of course, succeeded to the presidency when Nixon resigned the following year. Whereupon Ford appointed Nelson Rockefeller to the vacant vice presidency.
I was a very junior member of the Washington press corps at that time and had the luck to witness Governor Rockefeller’s confirmation hearings in the Senate. The interest of the Senate, which can be variable, largely centered on this rare opportunity to use the confirmation process to allow senators to reveal and examine—in almost prurient detail—the size and scope of the Rockefeller family’s wealth. And yet, despite the fact that little love was lost between the (overwhelmingly) Democratic Senate and (the famously Republican) Rockefeller, he was confirmed in short order and installed in office by Christmas 1974.
So traumatic had the two years of Watergate proved to political Washington that the newly installed executive team of Ford and Rockefeller was regarded as comforting evidence that ours is a government of laws, not men, and that the system works. As, indeed, it had—and from my perspective, had furnished the nation with two public servants of exceptional quality and experience. Still, even in the afterglow, I could not help but reflect that, from December 1974 until January 1977, the president and vice president of the United States were fully and constitutionally in place, and neither one had been elected, by any voters, to their respective offices.
Whether this state of affairs was a “sign of a healthy democracy” I leave to Senator Warren’s expert judgment. But it seemed a little extraordinary at the time, and has not since been duplicated. By contrast, when Donald Trump “took the presidency” in 2016 by winning the electoral but not the popular vote, he had two centuries of constitutional precedent on his side, as well as the experience of history.
To which I might add a mortuary footnote. The nervous authors of the 25th Amendment could hardly have known that the aged Speaker McCormack—who, in 1963, was three years older than Elizabeth Warren is now—would survive Lyndon Johnson by some seven years, and even the ancient Senator Hayden died less than a year before LBJ. Democracy may be “crumbling around us,” but not every tremor is an earthquake.
