Since Nov. 9, Donald Trump has been described as our “President-elect.” But many would be shocked to learn that this term is actually legally meaningless. The Constitution sets out a specific hurdle for Trump to ascend to the presidency. And that will not happen until Dec. 19 when the members of the Electoral College meet in their respective states to vote for the President.
It’s these electors who actually hold power under the Constitution to select Donald Trump as president. They should take that responsibility very seriously. They owe it to all Americans to deliberate on their choice in the manner required by the Constitution.
The fact is that the Electoral College was primarily designed to stop a demagogue—a tyrannical mass leader who preys on our prejudices—from becoming President.
Consider what Alexander Hamilton wrote in Federalist Paper Number 68. The Electors were supposed to stop a candidate with “Talents for low intrigue, and the little arts of popularity” from becoming President. The Electors were supposed to be “men most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice.”
They were to “possess the information and discernment requisite to such complicated investigations” as the selection of the President, and they were supposed to “afford as little opportunity as possible to tumult and disorder.” They were even supposed to prevent “the desire in foreign powers to gain an improper ascendant in our councils.”
Hamilton was talking about demagogues. The word “demagogue” appears in both the first and last Federalist Papers; in Federalist Paper Number 1, for instance, Hamilton worried about the “military despotism of a victorious demagogue.”
In my book Demagogue: The Fight to Save Democracy from Its Worst Enemies, I define demagogues as meeting four criteria: first, they posture as a mirror of the masses, attacking elites. Second, they trigger great waves of emotion. Third, they use that emotion for political benefit. Fourth, they threaten or break established rules of governance.
Demagogues tend to turn democracy against itself, from within, as we have vividly seen in recent years with the tyrannical Hugo Chavez in Venezuela (who imprisoned political opponents), the corrupt Silvio Berlusconi in Italy (who was convicted for corruption and for sex parties with underage women), and the brutal Alexander Lukashenko in Belarus (who runs a violent, oppressive regime).
For a long time, I believed that Trump was not a demagogue because he didn’t mirror the masses and because he didn’t threaten governance. But when he began openly posturing as a mirror of the masses and courting unlawfulness and even violence, I concluded that he had, in fact, become a demagogue, which meant that he also crossed the line into a clear Constitutional danger zone, according to the Founding Fathers.
For that reason, the Electoral College was designed to prevent a demagogue from becoming president. It serves two purposes. One of them is to give small states power as well as big states and the cities. The other is to provide a mechanism where intelligent, thoughtful and statesmanlike leaders could deliberate on the winner of the popular vote and, if necessary, choose another candidate who would not put Constitutional values and practices at risk.
In other words, the electors are not supposed to rubber-stamp the popular vote. They’re supposed to do the opposite—to take their responsibility gravely, to subject the winning popular vote candidate to exhaustive scrutiny, and, if the candidate does not meet Hamilton’s standards, to elect an alternative.
There is much for them to examine with Donald Trump. In his campaign and in his rocky and unsettling transition so far, Trump has run roughshod over fundamental Constitutional principles.
For instance, he sanctioned violence at his rallies and threatened to imprison his opponent. He threatened the independent press with libel actions and has barred the press from covering him. He has said he would force generals to comply with unlawful orders (for instance, regarding torture) and has threatened to abrogate alliances with treaty partners. And he has done all of these things while stoking prejudices, rage and fear in a way paralleled in our history only by other inarguable demagogues. And his transition so far has been an unsettling parade of erratic and autocratic decisions.
Electors are chosen by their respective state political parties. Twenty-nine states and the District of Columbia have laws in place requiring their electors to vote for the winner of the state’s popular vote. But those laws usually impose just small penalties, and Harvard law professor Lawrence Tribe has said that even those fines are Constitutionally suspect and may not be enforced by a court.
Because of these rules, the Electoral College has fallen into irrelevancy. This year’s election, in particular, the candidacy of Donald Trump, provides them with every reason to perform their job in accordance with Federalist #68.
There are several reasons to think that a revolt against Trump could take place among Republican electors. There’s the fact that Trump ran against the Republican Party and their leaders, viciously attacking many respected national leaders. There’s the fact that he was unable to win the popular vote—at most recent count over a million votes behind Hillary Clinton.
And then there’s the fact that Trump promises to bring to the presidency precisely the “tumult and disorder” that Hamilton warned against.
The electors were supposed to be statesmen. Even though recent years have seen a decline in statesmanship in America, they could be reborn this year. Statesmen truly have our greater good truly at heart, pursuing the broader purpose of America and calming the passions.
If these men and women live up to that noble goal on Dec. 19, they will truly make American great again.
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