The Usurpers

And now for something completely wrong.

Come January 20, two of the last three Presidents will have taken power without the consent of the governed.

This is a problem.

As we write Friday evening, three nights after the election, Hillary Clinton leads Donald Trump by about 400,000 votes of 120 million cast. Because of an artifact of history, these numbers are legally meaningless. And, until 2000, for six generations — 112 years — they might as well have been. For six generations, for more than a century, the Electoral College was a ceremonial formality that, for practical purposes, merely codified the popular vote.

Until it wasn’t.

In 1888, America consisted of 38 states and sixty million souls. Of the Governed, not all could give their Consent. Women were not allowed to vote; Blacks had gained their freedom and the franchise, only to see both severely constrained by the recent Jim Crow laws. Senators were chosen by legislatures, not voters. Mass communication was the telegraph; mass travel, the railroads. We would not become a world power for thirty years.

Between them, Benjamin Harrison and Grover Cleveland split eleven million votes. Cleveland led by 90,000, but because of the population distribution, Harrison won the Electoral College, the second such reversal in a dozen years, and only the third ever. National life moved on.

The United States has grown to more than six times the population since then, the franchise extended to all citizens over 18. Our cherished democratic traditions have only deepened with time, and, as everyone had occasion to note only weeks ago, it is our traditions that sustain our laws, not the other way around.

Whatever the reasons behind its creation, there is no principled argument for the Electoral College today. We understand that we live in States, and that as States we send representatives to Congress. But we regard our President as our national leader, not the chairman of our federation. We ask our fellow citizens whom they’re voting for President, not which electors they’re choosing to make a separate august decision.

And to keep Thomas Jefferson from spinning too quickly in his grave, we still have a Senate that favors the less populous states with greater power, which itself boasts a benighted procedural tradition that allows a few American Gothic remnants to hold the rest of us back even further.

The Electoral College is not required to maintain some long-since forgotten ideal of the Presidency, nor is it needed to protect the interests of rural states. We have lived with it for generations as an appendix to our Republic, an historical artifact of no consequence.

Only now the appendix has burst. Twice. And the only reason there is no rush to abolish the College is that the beneficiaries of its dysfunction have been Republicans, who are more than happy to seize power by any means necessary.

It is popular among the Chattering Class to ask whether a new President has a “mandate” to govern, meaning whether the margin of victory is sufficient to gain the public’s assent for enacting policies they implicitly endorsed. Although this, too, is legally meaningless — power is power, mandate or not — it is yet another aspect of our democratic tradition, one that presumes sufficient consensus among the Consentors.

A President who takes power without the support of a majority of voters has no mandate. A President who takes power without the support of a majority of voters has no legitimacy.

We have a word for those who seize power unjustly:

Usurpers.

To govern without consent is to undermine our democratic tradition and our democratic values. It violates the compact between a people and its leaders, a compact that allows for a peaceful transfer of power when leaders change. When those leaders, that power, is no longer unquestionably legitimate, the people will no longer unquestionably heed it.

This may not happen today. It may not happen next election. But if it happens with any frequency, Americans may simply refuse to acknowledge their leaders.

It’s happened before. If “consent of the governed” sounds familiar, that’s because it’s in the sentence that follows “Life, Liberty, and the pursuit of Happiness.”

59 comments:

11:53 am • Saturday • November 12, 2016

Saturday morning: Hillary +500,000.

12:32 pm • Saturday • November 12, 2016

Last night a student I mentor called me in tears. A seventeen-year-old kid, in tears because his parents don’t have papers and he hasn’t been able to sleep from the worry that he’ll have to leave the country if they are deported. I told him he always has a place here with John and I, but I couldn’t mitigate his terror.

I’m thinking of starting an Antifa group here in Valley Village, and am doing some research in the organization to make sure it is a group I want to be involved with. Anybody with information about them let me know.

7:57 pm • Saturday • November 12, 2016

In the time since I went on my news blackout, I had a curious thought: Our seemingly omnipotent intelligence agencies have conducted a background check on Trump, right? Why have we never heard a word about it? As a lifelong fame whore and the sleaziest real estate developer on the East Coast, the gory details of his life must be all over the place (and gurl, you know they are GORY). Why would they blithely hand over the keys to the country to an obvious madman? I don’t pretend to have any answers, but it is an interesting question that I’ve never heard addressed.

An article that I read in the traditional media stated that there’s no way for them to disentangle the conflicts of interest between Trump’s presidency and the hundreds of businesses with which he’s associated worldwide. OK, fine. But surely someone in the CIA, NSA, FBI or wherever knows, right? They can’t all be disastrously incompetent.

8:05 pm • Saturday • November 12, 2016

@Tommmcatt Au Gros Sel: I feel terrible for the millions of hardworking people and their children who’re in this nightmare scenario. Once I’ve recovered myself from the shock, I’m going to begin donating time and money to immigrant support groups.

9:19 pm • Saturday • November 12, 2016

The more that I consider it, the stranger and more surreal this situation becomes. Now that the shock and pain of the past week have begun to recede, I’ve been thinking critically about who we haven’t heard from over the last eighteen months: National security experts. The people that we see interviewed on teevee are the very tip of a gigantic intelligence iceberg. Is it really possible that no one at any level even considered the direct threat to our national security posed by a raving, racist, orange lunatic and his Eurotrash, bimbo wife moving into the White House? Did America’s best and brightest blow it yet again?

9:48 pm • Saturday • November 12, 2016

@¡Andrew!: Many did, publicly, as a group, from both parties. But I’m only aware of that because I was following James Falliws at the Atlantic, who was keeping track.

10:23 pm • Saturday • November 12, 2016

@nojo: But don’t they have to clear the president for national security reasons? I mean, I think about the ridiculous hoops that I had to jump through just to obtain my Series 7 and 66 securities licenses, including a comprehensive background check, and I don’t think Trump could have passed due to his serial bankruptcies. How can he have passed a background check given his record? This includes decades of legal challenges, as well as innumerable examples of unethical, possibly illegal behavior. He ran the most amateurish, unprofessional, and crises-wracked national campaign in US history.

His election proves that the thousands of people at the apex of our political, social, and economic systems aren’t just wrong, but totally incompetent. We’re talking about the entire Deep State here: the military-industrial complex, the media, the political bureaucracy, Wall Street, Silicon Valley, and the intelligence agencies, which are pledged to protect us from both foreign and domestic threats. These are some of the most successful and intelligent people on Earth, supposedly. I’m not saying it’s impossible that they all failed, but it doesn’t seem likely. Not to mention that they must expect the massive financial disruptions and social unrest that Trump’s presidency obviously will cause. I’m suspicious by nature, but too many variables all had go wrong simultaneously for Trump to end up in the White House.

10:36 pm • Saturday • November 12, 2016

@¡Andrew!: When it comes down to it, the only qualifications for election are (1) be a natural-born citizen, (2) be 35 years or older, (3) have been a resident 14 years or longer, and (4) not have been elected twice before. Whether someone is actually fit to serve doesn’t enter into it.

10:41 pm • Saturday • November 12, 2016

@mellbell: True, however I’m referring to the logistics of governing, such as receiving classified briefings and military strategies.

I mean, if Hillary Clinton had a problem simply mishandling classified information, Donald Trump will be Twitter-trolling other countries with it.

11:00 pm • Saturday • November 12, 2016

@¡Andrew!: The President’s clearance is provided by the Electoral College and the Oath. Otherwise, you run into a situation where we have a Secret Government accounable to n—

Oh, wait.

11:23 pm • Saturday • November 12, 2016

@¡Andrew!: The actual logistical issue is how career NatSec officials handle an insane directive from the top. Do they ignore it, effectively committing treason? Do they quit, leaving some inexperienced junior (or Trumper) to take the post? How soon should I start calculating travel time to the NORAD caves?

11:42 pm • Saturday • November 12, 2016

@¡Andrew!: Some variables that went wrong:

1. Republicans failed to grasp the consequence of running on a do-nothing nativist platform for years, showing the route a wealthy opportunistic narcissist could take to power.

2. Democratic primary voters (and Establishment) preferred a dull “electable” candidate over an inspirational European Socialist.

3. While Trump matched the Romney vote, Hillary fell six million votes short of Obama 2012.

You may also throw in some voter supression at the edges, although I’m not yet clear whether that had a substantial effect.

All too simple, really. I’m not even bothering to mention the Russkies, or throw Comey under the bus.

9:40 am • Sunday • November 13, 2016

@¡Andrew!:
See 1954-1975 Experience, Vietnam.

The ‘best and the brightest’

11:33 am • Sunday • November 13, 2016

@nojo: I learned this in bootcamp, and it’s probably one of the most disingenuous things to tell someone while they are being taught to blindly obey authority: It’s illegal to obey an illegal command.

Refusing an order serious enough to possibly be considered illegal will likely get you a trip to the brig, maybe Leavenworth, maybe dead, or al least mkae you think long and hard about that being dead thing.

This fool is about to become Commander in Chief. You can always be relieved of your command, but shit. IDK. I think the Joint Chiefs and even the fucking Surgeon General would say, “Give us a minute, Donald?”

12:28 pm • Sunday • November 13, 2016

@JNOV: @nojo: A veteran friend who was trying to quell panic on facebook pointed out that every member of the armed forces and the national security administration swear to uphold the Constitution. That is their ultimate loyalty, not blind obedience to the Commander-in-Chief.

In other news, the Democrats need to dump superdelegates NOW. If people feel that their vote in the primaries doesn’t matter, why would they bother to participate or to support the nominee?

12:36 pm • Sunday • November 13, 2016

@JNOV: Oh. Right. Nuremberg.

But I wasn’t thinking about something manifestly illegal. Just ridiculously insane, something that would give even Cheney pause.

12:43 pm • Sunday • November 13, 2016

@Mistress Cynica: The counterargument is that (nonexistent) GOP superdelegates could have stopped Trump, although the counter-counter is that supers would have lacked the guts to deny a popular favorite.

So, dunno. I’m the one who bitches about Dems nominating wooden candidates too often, and supers just reinforce that. Fear of McGovern hasn’t produced a string of victories.

3:18 pm • Sunday • November 13, 2016

Meanwhile. in the Alternate Timeline, pundits can’t stop yapping about the “Crisis of Legitimacy” since President-Elect Clinton lost the popular vote.

4:49 pm • Sunday • November 13, 2016

@nojo: No, more along the lines of how the rules of engagement change with each administration, and during an administration. How loose will they be now? Will people be held accountable if they ignore them? Are these rules opening us up to more harm? That’s what grunts worry about – the rules that mean we win/stay alive/whatever.

9:23 pm • Sunday • November 13, 2016

I went to bed on Tuesday and everything was normal, and then I woke up on Wednesday in a Margaret Atwood novel.

1:32 am • Monday • November 14, 2016

@¡Andrew!: It’s like looking down a giant pit — the depths are unplumbable right now, and questions about What Trump Will Do are unanswerable,

Not even Trump knows. All he wanted was to Win, never to Be, and now that he’s signed the deal, he’s bewildered by the details. That might be amusing in another context, but that power vacuum will be filled one way or another, and we don’t know by whom or from where.

We all feared a fascist, but fascists make the trains run on time. All Trump will do is drive them off tracks.

10:24 am • Monday • November 14, 2016

@nojo: That’s reason numero uno I’m freaked out: Not only are the RepubliKKKans toxic and destructive, they’re also totally incompetent.

Is there an organized group set up to contact our elected representatives and demand that they put pressure on the Electoral College to follow the popular vote?

10:33 am • Monday • November 14, 2016

@¡Andrew!: Not that I’m aware of, and I don’t know how you turn 22 votes (or 42 — still 20 outstanding) when electors themselves presumably support the candidates they’re pledged to.

Which itself puts the lie to arguments that the Electoral College is functioning as intended. Electors were supposed to be independent decision-makers — a hiring committee — not rubber stamps.

1:09 pm • Monday • November 14, 2016

I peeked at the news this morning and immediately wished that I hadn’t.

There’s quite a bit of talk about fighting back but how? Donating to the ACLU and attending protests… what else can we do?

2:12 pm • Monday • November 14, 2016

Gwen Ifill dead at 61, because 2016 ain’t over yet.

2:17 pm • Monday • November 14, 2016

@nojo: Seriously. What did we ever do to deserve you, 2016?

2:22 pm • Monday • November 14, 2016

Worst. Year. Ever.

2:24 pm • Monday • November 14, 2016

@¡Andrew!: What’s worse, though — that there are still about 45 days left in 2016 or that we’re only about 65 days away from inauguration 2017?

2:26 pm • Monday • November 14, 2016

@¡Andrew!: Well, the ADL is already taking note of Bannon’s appointment as chief advisor…

But here’s the problem: Many of us live in states where there isn’t a problem. Your Congresscritter is Blue, your senator is Blue, your governor is Blue. They’re already dealing with it.

Schools are dealing with it too, but there’s nothing you can protest there. What Tommy mentioned in Los Angeles is also happening in Denver, and the local superintendent has already announced plans to address whatever shit comes out of D.C.

Meanwhile, the media is rushing to normalize everything, because the media always normalizes power, and calling out Breitbart for what it is is now just one of many “viewpoints”.

I’m not saying it’s hopeless. But I haven’t found the hope yet.

2:46 pm • Monday • November 14, 2016

@nojo: Nooooooooooooooooooooooooooooo!! FUCK FUCK FUCK FUCK FUCK FUCK 2016 FUCK IT ALL.

2:51 pm • Monday • November 14, 2016

@SanFranLefty: Are there any orgs that help immigrants to which you’d suggest donating? I want to help people and just feel so powerless.

3:06 pm • Monday • November 14, 2016

OK, The Stranger just published a fairly comprehensive list:

Resist Trump By Supporting These Crucial Organizations

3:19 pm • Monday • November 14, 2016

And, for what it’s worth: Sign the Merrick Garland petition. Petition page ncludes a link to a WaPo background piece.

6:49 pm • Monday • November 14, 2016

CBS reporting that Trumpers are asking how Trumpspawn can receive top-secret clearances.

You know, the kids running the “blind trust”.

I wish I could enjoy the show, but even my dark humor has limits.

7:47 pm • Monday • November 14, 2016

@nojo: Because I wasn’t stressed enough, Charlie Pierce just pointed out in Esquire that it takes 34 state to call a Constitutional convention; Republicans now control 33 state legislatures. See y’all in the camps.

8:09 pm • Monday • November 14, 2016

@Mistress Cynica: There was some update to that stat — Dems control one house in some of those legislatures. Still, too close for comfort.

8:58 pm • Monday • November 14, 2016

@Mistress Cynica: The good news is that I don’t think there’s any way for them to target you or your Mr. specifically, so I hope that helps you feel safer.

I spent some time today reading up on the history of Germany in the 1930s. I don’t recommend it.

9:03 pm • Monday • November 14, 2016

Okay, Judy Woodruff on Newshour has me completely verklempt.

@¡Andrew!: Planned Parenthood serves a shit-ton of immigrants, actually; and I am a proponent of targeting your donation to the border affiliates. Also this group in Tijuana that a Seattle architect friend of mine volunteers with.

9:13 pm • Monday • November 14, 2016

@nojo: Yeah, both Trump and Bannon are on record advocating the violent overthrow of the United States government, so I’m really confused how this clearance thing is gonna work.

10:20 pm • Monday • November 14, 2016

@¡Andrew!: Here’s some fun background from the WSJ, back when Republicans were grandstanding about Hillary’s clearance.

Basically: The Prez can overrule clearance denials. But that doesn’t preclude the process itself. Just don’t assign background checks to the FBI New York office.

10:30 pm • Monday • November 14, 2016

@SanFranLefty: And least we forget, Henry Kissinger and Dick Cheney still stagger around the earth (albeit sucking unicorn and puppy blood for sustenance). Life is so fucking unfair.

1:39 am • Tuesday • November 15, 2016

This Bannon thing terrifies me, but part of me is looking at the way things are shaping up – Secretary of State Giuliani, Secretary of the Interiuor Palin, etc.- and thinking “this clownshow is over edits it begins”. These idiots are mostly innedextual, bubbling mouth-breathers, and the Republican establishment will run them like rats in a maze.

I mean, it will suck, but I’m not sure these people could manage an authoritarian regime. They are simply that stupid.

At least that is what I’m getting through tonight, anyways.

1:49 am • Tuesday • November 15, 2016

@Tommmcatt Au Gros Sel: The problem is, they’re all perfectly capable of taking the rest of us down with them. God help me, I’d rather see Newt at State, where he can bloviate to his heart’s content. Rudy will spend his days ginning up crises.

Plus, before you tuck in: Supreme Court. Sweet dreams!

3:05 pm • Tuesday • November 15, 2016

The thing that made my breath catch in my chest was what the National Parks system is going to look like in four years. Take pictures now, ’cause I can virtually guarantee it’ll be clearcut and stripmined by then.

3:26 pm • Tuesday • November 15, 2016

66% of the population did not vote. Every President has taken power without the consent of the governed.

3:39 pm • Tuesday • November 15, 2016

@Ed: Greetings!

Since you mention it, I once ran for student-body president on an Apathy Ticket, claiming all uncast votes for myself. Almost made the runoff, from cast votes.

Of course, not voting is equivalent to assenting to the decision of those who do. And the underlying point of “consent” is the public’s acceptance of the legitimacy of its government. In our winner-take-all plurality system (“first past the post”, as they insist on calling it in the UK), a second-place “winner” calls into question the authority of the person who takes power.

3:54 pm • Tuesday • November 15, 2016

@Ed: Are you including children, permanent residents, and others not eligible to vote (e.g., felons in certain states) in that statistic? The latest estimate is that just under 42 percent of people eligible to vote did not. Still far too many, but more than a third lower than what you’re citing. Let’s at least try to agree on the numbers (if nothing else).

4:28 pm • Tuesday • November 15, 2016

@nojo:
Re: clearance

Taken to its logical extreme though, that would mean that say a Russian agent could win enough Electoral College votes, or be appointed to a cabinet position, and obtain top secret clearance. This would be an immediate internal threat to national security. I mean, at some point someone has to say no, right? Or do the intelligence agencies just shrug and say “whatever?”

Also, you know that each and every one of these shit-for-brains have secrets that make them susceptible to blackmail, both internally and by foreign powers. How the hell do they deal with that threat? Even Shonda Rhimes couldn’t cook up a situation this insane. Remember when that one lady couldn’t be confirmed as Labor Secretary ’cause she once paid a nanny under the table? Jeezus freakin’ Christ.

4:41 pm • Tuesday • November 15, 2016

@¡Andrew!: Well, the Manchurian Candidate came from somewhere…

I saw a passing mention today that Cabinet nominees undergo FBI background checks — plus income-tax reviews — as part of the confirmation process. But this would still be procedural/traditional: Congress can confirm or reject whomever it wants.

In terms of someone, somewhere objecting: Under what authority? Unless there are legal requirements — under laws passed by Congress and signed by the President — a President is free to ignore warnings, since the President is the ultimate arbiter of national security.

Our government is full of checks and balances, but ultimately nothing stops Our Exceptional Nation from raising an idiot to the highest office.

12:39 pm • Wednesday • November 16, 2016

@nojo: Think we scared him off. Certainly wasn’t my intent.

1:20 pm • Wednesday • November 16, 2016

@mellbell: I don’t know that he ever returned to be scared off. I’m guessing he Found Something Wrong on the Internet, objected, and moved on.

4:21 pm • Wednesday • November 16, 2016
8:25 pm • Wednesday • November 16, 2016

@IanJ: If it’s any consolation, the ongoing crisis with low commodities prices–one of the many paradoxes of the economic recovery–means that it’s highly unlikely that resource extraction firms would have the means to develop public lands even if they could get their hands on them. Many of these firms are hanging on by a thread, and a sudden spike in interest rates would finish most of them off.

10:00 pm • Wednesday • November 16, 2016

@¡Andrew!: Related: Heavy-equipment auctions setting records in Colorado as indie extraction companies pull out. Won’t last, but noteworthy.

11:20 am • Thursday • November 17, 2016

So after going on a news break for a week and armed with a fresh prescription for sedatives, I’m finally beginning to feel back to normal.

I’m maintaining my news hiatus indefinitely for my own mental health, however I have seen a few headlines. It appears that the chaos and infighting that characterized Trump’s campaign is going to continue into a presidency staffed by “has-beens and never-weres.” These people are so toxic and destructive that it may be impossible for them to fully implement their own agenda let alone accomplish anything positive. The Trump administration may collapse simply under the weight of their own internal power struggles and gross incompetence. They may spend most of their time in an all-out war with Congressional RepubliKKKans rather than with Democrats.

Take heart, friends. These evil psychopaths may destroy themselves.

11:31 am • Thursday • November 17, 2016

Also remember that recently we’ve been in dire straits before–2002 and 2004 spring to mind–and we succeeded in turning it around in 2006 and 2008. The liberal resistance against Trump could be the greatest that we’ve seen since the ’60s.

11:23 pm • Thursday • November 17, 2016

Today it dawned on me that this incurious, uninformed, barely literate asshole will one day have a presidential library. Fuck.

11:34 pm • Thursday • November 17, 2016

@mellbell: The deleted tweets are embargoed for fifty years.

10:14 pm • Friday • November 18, 2016

The usually delightful Tim Urban at Wait But Why has a couple of half-baked posts up on electoral dysfunction, however he does have an excellent point:

Some of what liberals are upset about was inevitable.

Putting Trump himself aside for a second—politically, what I saw Tuesday night is an inevitable shift of tide. In American politics, the party zig-zag is one of the most reliable patterns you can find. Over the last century, one political party has maintained power for over 12 years straight exactly once—the 20 years Democrats were in power between 1932 and 1952—and that was a time of exceptional circumstances because of World War II. It’s been a full zig-zag.

Liberals are upset about a lot of things right now, but a large number of them simply amount to the fact that the Republican Party has inevitably regained control of the government. People’s horror over what will now happen with the Supreme Court, climate change policies, and the gutting of Obamacare, for example, would be no different if a far less offensive Republican—say, Marco Rubio—had won the presidency. And history tells us that if the Republicans hadn’t taken over this year, they probably would have four years from now. So a blow to the liberal agenda in all these areas was predictable. These various causes were never going to simply remain on a steady progressive path—not in this country.

It’s somewhat comforting to zoom out and take the long view, even as events appear to be heading to hell ‘n a handbasket now.

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