If the most urgent questions raised by this election season have been “What kind of democracy do we live in?” and “What kind of democracy do we want to live in?,” then Senator Mike Lee, of Utah, has an answer. Just hours before the F.B.I. revealed a plot by members of a white-supremacist militia to kidnap the governor of Michigan, the Republican senator let loose a volley of tweets that could be interpreted as a shorthand version of the gospel of many on the right. “Democracy isn’t the objective: liberty, peace, and prospefity [sic] are,” Lee wrote. “We want the human condition to flourish. Rank democracy can thwart that.” Earlier, he had written, “We’re not a democracy.”
As shocking as this sounds, especially from a sitting member of Congress, it is a point of view that comes from a hidebound reading of the Constitution and stems from a selective interpretation of the Framers’ intent, articulated most directly by James Madison in the Federalist Papers. “We may define a republic to be, or at least may bestow that name on, a government which derives all its powers directly or indirectly from the great body of the people, and is administered by persons holding their offices during pleasure, for a limited period, or during good behavior,” he wrote in Federalist No. 39. A democracy, by contrast, puts government directly in the hands of the governed. (Lee clerked for Supreme Court Justice Samuel Alito, a champion of “practical originalist” jurisprudence, which holds that the law should adhere as closely as possible to the meaning of the words in the Constitution at the time it was written. Lee’s argument is a similar kind of textualism.)
The 2016 election was a rude reminder that we aren’t a popular democracy. Donald Trump’s victory was an Electoral College math trick. But, in fact, we aren’t a direct democracy, either, where we all show up in the public square to hash things out. Plato, you may remember from an intro-to-political-philosophy class, was especially wary of that kind of government, because he doubted that most men—he was writing only about men—possessed the intellectual capacity or the temperament to govern themselves. The Framers, including Madison, who were similarly suspicious of the rabble, gifted us instead with a representative democracy, which puts the people one degree of separation from the halls of power. Our sovereignty as citizens comes from the right to choose the people who we believe best reflect our interests. The Supreme Court’s Citizens United decision, which put those interests up for sale, is a striking example of how the Framers’ intent has been debased by those who use the claim that America is a republic, and the libertarianism on which that claim feeds, to justify siphoning power away from the electorate.
When Senator Lee says, “We’re not a democracy,” he’s not just being provocative. He is also pointing out that, from the start, the Founders limited the franchise. Though it’s always refreshing to be reminded that it took constitutional amendments and acts of Congress to extend voting rights to Black Americans, women, and Native Americans, it’s equally heartening to remember that American democracy, for all its shortcomings and its flaws, has proved to be elastic. Incrementally but inexorably, it has expanded to include the excluded. It is a testament to the inherent dynamism of the electorate that it continues to survive every attempt to diminish it by those whose fear of “the public”—as in public health and public education—is masked by appeals to “liberty.”
Lee’s words also underscore something else: that many on the right view voting as an existential threat. At a gathering of evangelicals back in 1980, Paul Weyrich, a Republican strategist and a co-founder of the Heritage Foundation, asked, “How many of our Christians have what I call the ‘goo-goo syndrome’? Good government. They want everybody to vote. I don’t want everybody to vote. Elections are not won by a majority of people. They never have been from the beginning of our country, and they are not now. As a matter of fact, our leverage in the elections quite candidly goes up as the voting populace goes down.”
Gerrymandering and restrictive voter-I.D. laws are products of this sentiment, as are the dismantling of the Voting Rights Act, legal impediments to casting ballots, and voter suppression propagated through social media. These efforts, which began before Donald Trump’s Presidency, intensified when he took office, and have escalated as the 2020 election approaches. Lately, we’ve watched as Republican-controlled state legislatures, Republican-appointed judges, and Republican secretaries of state shutter polling places, limit the number of ballot drop boxes, undo the restoration of felons’ voting rights, and prevent absentee voting. The hacking of this election—through the use of such democratic institutions as the courts and the legislatures, which are exploited to erode and subvert democratic norms—is under way, and it has been for years.
The paradox of American democracy is that its survival is a choice; it persists solely at the discretion of an electorate that can, if it so wills, dismantle it. If the polls are accurate, Trump’s reëlection bid is in trouble. Early voting in swing states indicates that more Democrats have voted than Republicans, and groups that supported Trump in 2016, such as white, suburban woman, are abandoning him. Apparently, Trump sees cheating as his best chance to win, so he has been denouncing voting by mail, actively kneecapping the U.S. Postal Service, loudly complaining about voter fraud, injecting all sorts of misinformation into the media, and doing nothing to deter Russian meddling in the election. We need to be concerned about foreign intrusions, such as those that Microsoft revealed on October 12th, and others reported by the intelligence community two days later. We also need to be alert to the many weak links in our election infrastructure that can be sabotaged: machines that don’t produce paper backups and can’t be audited; machines that tally the vote using unreadable barcodes, which prevent voters from checking their accuracy; electronic poll books that are not subject to cybersecurity review; and unpatched software that leaves voting machines vulnerable to manipulation, to name just a few.
Democracy relies on trust. Not trust in democracy itself but trust in one another. When we vote, we come together to articulate our singular will with the understanding that we will submit to the collective will. Trust permeates the system: we trust that our vote will be counted accurately; we trust that the people we’re choosing to represent us have our best interests and those of the country at heart. The most sacred trust is that, when the votes are all tallied, the losing candidate will walk away with grace. Donald Trump, abetted by Attorney General William Barr, who earlier this month deputized federal prosecutors to investigate claims of voter fraud before the polls close, is busy abusing this trust. If, ultimately, Trump, Barr, and others were to subvert the election, Mike Lee’s claim that we aren’t a democracy will turn out to have been prescient.
