Democracy at risk? Folks, that’s a bunch of malarkey

Over the past four years, Americans have been told repeatedly that our democracy is at risk.  Many factors are said to be at play. Voter ID requirements, limits on absentee voting, registration in advance of election day, polling place arrangements, opposition to statehood for the District of Columbia, along with concerns about voting by mail in the just-concluded election, are said to constitute voter suppression. But if these indictments do not persuade, there was the reality of Donald Trump’s 2016 election. Even had he not been the second president since 2000 to be inaugurated after losing the popular vote, Trump in the White House had to be proof certain that our democracy is at risk.

With Joe Biden’s popular vote and Electoral College victories, one might conclude that our democracy has regained its footing. But apparently it has not. A New York Times editorial eight days after the election declared “The Republican Party is Attacking Democracy.” On the opposite page, Thomas Friedman’s column was headlined “Only Truth Can Save Our Democracy.” It seems Republican successes in the House, Senate and state legislatures have got to mean that our democracy remains at risk.

As President-elect Joe Biden might say: “Folks, this is a bunch of malarkey.” 

Describing the past four years as “historic,” Friedman claimed that “[l]ying has been normalized at a scale we’ve never seen before.” Surely he knows his history better than that. Lies always have been endemic in American politics. Abraham Lincoln lied about his government’s negotiations with the Confederacy. James Polk lied about security threats from Mexico. Franklin Roosevelt lied about ongoing preparations for intervention in World War II. Woodrow Wilson, Roosevelt and John F. Kennedy all lied about their health. Richard Nixon lied about his knowledge of the Watergate break-in. Lyndon Johnson lied about the Vietnam War. Bill Clinton lied about his relationship with Monica Lewinsky. Barack Obama lied about keeping your doctor under the Affordable Care Act, and Trump lied about … well, it’s a long list for an op-ed. 

Moreover, presidents are not our only elected liars. Political campaigns are riddled with false promises and lies about the opponent. But somehow our democracy persists. An advantage of democracy over other forms of government is that the people get to decide which liars to live with, and voters can throw them out at the next election. It would help, as Friedman recognized, if the news media checked, rather than facilitated, the lying, but a prevaricating press also has been the reality since 1787. 

The more serious flaw in the “our-democracy-is-threatened” mantra is that it is based on a misconception of our democracy. Contrary to the four-year refrain of Trump’s illegitimacy, including from Hillary Clinton and Jimmy Carter, he was legitimately elected by our democracy.   That he lost the popular vote by 3 million is beside the point. That is not how we elect a president in our democracy.

The Electoral College, in which states with less than half the national population can prevail; the Senate, in which California and Wyoming get two votes each; the enumeration of Congress’s limited (in theory) powers; the Bill of Rights and other liberties guaranteed in the Constitution; an amendment process that can be stymied by states containing less than 4 percent of the population; and a Supreme Court that can void laws enacted by elected representatives of the people combine to make our democracy rather undemocratic. 

Many Americans have come to believe that democracy — majority rule — is the be-all, end-all of our Constitution. But that has never been the case, and there is little to be said for the “winner-takes-all” or “We won, you lost” philosophy that has dominated our politics during the past two presidencies.  

The best argument for majority rule is that it is the only practical mode of decision in an extended republic founded on securing the inalienable rights of all the people. The Framers of our Constitution recognized that for a democracy to secure those rights, it must be limited.  Those who proclaim that our democracy is at risk when the will of the majority is denied do not understand our democracy, and in so doing they invite a tyranny of the majority.  

James L. Huffman is a professor of law and the former dean of Lewis & Clark Law School in Portland, Ore. He was the Republican nominee in the 2010 U.S. Senate election in Oregon. Follow him on Twitter @JamesHu41086899.