President Trump has intimated that he may declare a state of emergency which would permit him to build his border wall with funds not appropriated for the purpose. This raises large constitutional questions about whether Congress can cede powers entrusted to it, and whether the courts will permit such usurpation.
Historian Jill Lepore’s excellent new history of the United States and its successes and failures in living up to its founding ideals, “These Truths,” reminds us that the founders worried that, while a government by a monarch, an autocracy or the people could all work, they could all be abused. Monarchs could become autocrats, an aristocracy become an oligarchy, or a people’s government a democracy. To those 18th Century gentleman, democracy was a pejorative term for misrule by a rabble or a mob.
They opted for rule by the people, but essentially only by white men who possessed property which supposedly made them more sober, prudent and reliable. Little by little more men acquired the vote, but it took another eighty years and a Civil War to entrust the franchise to freed slaves and 133 years to enfranchise women.
So, two cheers for democracy, but, as recent events have shown, antidemocratic forces are alive and well. Partisan gerrymandering subverts the people’s will in many states. The cash provided by an oligarchic donor-class provides an advantage to candidates willing to do its bidding. Voter suppression efforts, which began as soon as Reconstruction ended, still are used to erect barriers that aim to minimize the vote by various despised minorities.
Nor should it ever be forgotten that many autocrats first achieved power through the ballot box, then systematically corrupted the electoral process or eliminated it. Unsurprisingly they then, as in the case of a Putin, win 76 percent of the vote or, as in the case of Hitler, preside over a party with 37% of the vote in 1932 and a year later, having demanded powers to address a crisis, abolish all other parties and assume total control.
This alone should make Trump’s talk of a state of emergency alarming, especially since neither a partisan Senate nor an increasingly partisan judicial branch can be relied on to provide the checks against executive overreach the creators of Madisonian democracy intended.
It can happen here. In two of the last five elections, the winner of the popular vote did not become president due to the survival of an anti-democratic electoral college. Elections in a least three states in 2018 – North Carolina, Georgia, and Florida – were arguably stolen by various nefarious means.
As we all know, intelligence services have demonstrated that a hostile foreign power set out in 2016 to tilt the presidential election in Trump’s favor using cyber attacks. And a special counsel’s investigation may show that Trump’s campaign conspired with the Russians to achieve his victory.
The recent news that campaign manager Paul Manafort provided detailed polling data to Russians closely connected to Putin and the GRU, the security service in charge of the cyberwar, appears to connect the dots.
Voters who take their franchise seriously should insist that candidates in 2020 do more than adhere to their partisan talking points. We should expect them to vow to preserve protect and defend the Constitution by enacting a reform agenda of election safeguards. These should include:
Nonpartisan commissions to control redistricting in the states.
A 28th Amendment to replace the electoral college with the popular vote.
A limit on campaign money and transparency to show its source.
A repeal of laws granting presidents the ability to declare a state of emergency at whim. And by extrapolation a claw back of power by the legislative branch from the imperial presidency.
Funding to allow all states to protect their voting systems from interference by hackers or other intrusions. This would include modernized machines, a back up paper ballot record, cyber security to protect the process.
Increased criminal penalties for those who attempt to corrupt elections.
Furthermore, a technical body should be created to protect against emerging threats. Computer experts warn that the cyber attack of 2016 is just the beginning. For example, advances in CGI now permit relatively unsophisticated users to create fraudulent videos of candidates, putting them in compromising positions or putting words in their mouths that only experts can tell form reality.
Eternal vigilance is the price of freedom, and where our elections are concerned no cop is on the beat and even when alerted often arrive long after the election has been stolen.