The Real Enemies of Democracy

Putting criticisms of the Senate, Electoral College, and Supreme Court in perspective.


Last February, Professor Pam Karlan delivered the Jorde Lecture at the University of Chicago Law School. Her lecture, "The New Countermajoritarian Difficulty," discussed the increasingly undemocratic consequences of the Senate and the Electoral College as well as the Supreme Court's failure to protect democracy in various election law cases. You can watch it here.

The lecture will be published in the California Law Review along with responses from the commentators. I am one of the commentators, and I have posted a draft of my response, The Real Enemies of Democracy, on SSRN.

Here is the introduction:

The Constitution is undemocratic and the Supreme Court is not helping. That is Professor Karlan's sobering assessment in "The New Countermajoritarian Difficulty." The structural problems include the non-majoritarian effects of the Senate and the Electoral College, combined with the demographics and polarization of the American electorate.The doctrinal problems include the Supreme Court's failing to intervene against voter-identification legislation or partisan gerrymandering while at the same time having the temerity to invalidate part of the Voting Rights Act.

I don't exactly disagree. The Constitution is flawed and hard to amend, and the Supreme Court is not going to fix it. But I would urge some perspective. It isn't the Supreme Court's job to fix the Constitution, it is ours, and we will get to it as best we can.

More fundamentally, however, I worry that democracy faces far worse enemies than the Senate, the Electoral College, or the Supreme Court. Those enemies are the ones who resist the peaceful transfer of power, or subvert the hard wired law of succession in office. The shield against them may be more formalism, not less. So we destabilize our current imperfect arrangements at our own peril.

And from Part II:

This past election, the real challenge to democracy came not from the Senate, the Electoral College, or the Supreme Court, but from those who sought to subvert these hardwired rules. The facts are surely well-known by now, but lest they be forgotten: After the states chose their electors on November 3, some Republican agitators tried to pressure state officials to back alternate choices. This would violate the law because the electors had already been chosen on November 3.

Federal law does contain an exception for a state that "has failed to make a choice on the day prescribed by law," but that was inapplicable. Every state had chosen its electors. It was simply that some Republicans objected to the way they were chosen.

After the electors cast their votes on December 14, some Republican agitators tried to disrupt or derail the count. On January 6, 139 Representatives and 8 Senators, at least some of whom surely knew better, raised baseless objections. Other agitators tried to convince Vice President Mike Pence that he had the authority to reject or remand some of the votes. And of course still others simply stormed the Capitol.

These rules, and these events, should put the countermajoritarian difficulty in perspective. Yes, there is something undemocratic about taking advantage of structural voting rules, and something worse about crafting and enforcing voting rules for partisan advantage. But at least those are the rules of the game, constrained by the rule of law. The real enemies of democracy, at a more fundamental level, are those who try to ignore the rules of the game after they have already lost it. This past election, that means the real enemies of democracy were President Donald Trump and those who fought for him.

This is not just about the invasion of the Capitol on January 6, 2020. That was the most eye-catching attempt to subvert the rules, and of course if it had turned more violent more quickly it could easily have led to a constitutional crisis. (Imagine, for just a dark moment, if a large number of members of Congress had been killed or disabled before completing their constitutional duties. Our rules for quorums and continuity of Congress may not be up to such a disaster.) But because that was such an obvious offense to democracy under law, it was not the most insidious. We will prosecute and punish many of the offenders. We will put it behind us. We will probably even laugh it off.

By contrast, had a few key state legislatures taken the bait to try to unchoose their electors after Election Day, it is easier to imagine them getting away with it. Because the lawlessness of this act turns on technicalities, sly lawyers might well be able to debate it into apparent ambiguity.  They would not wear Viking helmets. And for those reasons it may still happen in another close election.

And consider just how much the Republic owes to Vice President Mike Pence. The Vice President has no independent power to judge the validity of electoral votes and had no basis to declare the 2020 electoral votes invalid. Vice President Pence deserves credit for seeing this and sticking to it, even when pressed. But what would have happened if he had given in to the urging that he try? We are fooling ourselves if we are confident that it would have failed. Between crafty lawyering, partisan motivation, and the power of focal points, he may well have been able to sow uncertainty or rally Republican elites to resist the lawful President-elect Joseph Biden.

It is too soon to say that these antics are behind us. Protecting democracy requires careful attention to these rules for the peaceful transfer of power. And it requires those rules to be upheld by those of the losing party. Without that, we won't need to worry about the Electoral College.

And one more:

By all means, let us pay more attention to the basic mechanics of democracy. But we should not let long-term imperfections in our democratic structure distract us from more immediate threats. Indeed, there is a tension between surfacing the flaws in our rules for democracy and enforcing those rules against democracy's enemies. It is no more than a tension – one can very well say that it is important to enforce the Constitution's rules for transferring power and also that those rules can and should be improved or understood in freer or fairer ways. But it is important to be careful of the tension lest we get carried away. Attack the legitimacy of the Constitution too much, and those attacks might catch on. If those attacks catch on, it is harder to convince members of the other party that they are bound by the rules they don't like. A very strong norm of saying "I'm sorry, those are the rules, and we don't accept special pleading" turns out to be a very useful thing to have during an emergency – especially when the only person standing between the transfer of power and a constitutional crisis is the Vice President.

NEXT: Lakefront and the Public Trust Doctrine—Enter Professor Sax

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  1. The unstated premise of this post is that true democracy is superior to all other systems. But the founding fathers rejected true democracy in favor of a republic, and also rejected proportional representation. Before supporting a re-write of the Constitution, I want to see hard proof that the new system would be superior.

    BTW, in the language of the founders, democracy meant direct democracy where citizens vote directly on every issue and they do not have representatives in Congress. Indeed, there would be no Congress. In the modern context, laws are passed if a majority of people click the YES button. That’s democracy.

    California has a taste of direct democracy in their many constitutional referendums.

    1. The founders and framers used “democracy” and “republic” almost interchangeably, from what I’ve read of their writings. Seems like a distinction without a difference to almost everyone except those pushing a nitpicking pedantic agenda.

      1. “Remember democracy never lasts long. It soon wastes, exhausts and murders itself. There never was a democracy yet that did not commit suicide.”

        John Adams

        He did not use the words republic and democracy interchangeably.

        1. Great, one sentence using one of the words. He did not mention republics at all, let alone say they do not have the same problem.

          Find a better quote, find a lot of them, and it might carry some weight.

        2. Franklin did not say, “a democracy, if you can keep it.”

          1. “It has been observed that a true democracy, if it were practicable, would be the most perfect government. Experience has proved that no position is more false than this.”

            Alexander Hamilton

          2. Libertymike, in what Frankly allegedly did say, please tell me who Franklin referred to with the word, “you.”

            1. He may have been referring to Elizabeth Powel or to Elizabeth Powel and all of the citizens. Of course, in English there is the problem of distinguishing the second person singular from the plural.

        3. Democracy is Greek for Republic; Republic is Latin for democracy. (Demos – people; Kratika – rule. Res – thing; publica – people.) So whether we are a republic or a democracy depends on whether you are speaking Greek or Latin.

          1. I was curious about non-Indo European languages. I was amused to find the 19th century Turkish word جمهور meant any of “the public”, “a republic”, or “a state of anarchy”. (The word is of Arabic origin. Pronunciation might be rendered jümhur. The modern Turkish spelling is cumhur but the meaning may have shifted.)

            1. In Turkish as it is written today, the letter “c” makes the sound normally represented in English by “j.”

          2. “So whether we are a republic or a democracy depends on whether you are speaking Greek or Latin.”

            A monarchy can be a democracy, it cannot be republic.

            1. Bob, next tell me about square circles. Monarchy and democracy are mutually exclusive. Unless you mean figurehead monarchies that are monarchies in name only.

              1. He obvious refers to a country with a population of one.

      2. re: “The founders and framers used “democracy” and “republic” almost interchangeably”

        No, not hardly. They used the terms quite differently and very deliberately so. The founders were well aware of the problem we now call the Tyranny of the Majority” and implemented deliberate counter-majoritarian institutions to keep that problem at bay.

        The Senate and the Electoral College are two examples of precisely that. They are not “problems” – they are the solution to the problem.

    2. “California has a taste of direct democracy in their many constitutional referendums.”

      Indeed. And it’s worth mentioning how direct democracy here was used to attempt to preserve “traditional marriage”…until the system of constitutional democracy we have overthrew it.

      1. I actually think California shows you how good democracy can be. It’s not perfect- I don’t think anyone agrees with every single result of every single voter initiative.

        And yet- voter initiatives protect against our legislatures and politicians getting ahead of their skis. So when the political system was captured by auto insurance companies, we passed auto insurance reform that cut rates and changed the structure of our Department of Insurance. When the public opposed race-based affirmative action but state universities were ignoring public opinion, we twice voted against such programs. State voters rolled back unpopular criminal procedure rules, but also legalized medical marijuana and started a trend that spread throughout the country.

        Marijuana is the absolute best example of the problem. The public didn’t care about marijuana. But politicians ignored public opinion because they personally disliked stoners. They still ignore public opinion on the federal level. If we had an actual direct democratic process, marijuana would have been descheduled years ago.

        California is right about the voter initiative. It isn’t that the results are always good (I disliked the criminal procedure stuff, for instance), but they are legitimate in a way that even fully representative government can never be.

        1. “Legitimate”…..until the powers that be decide they don’t like what voters decide. Then “Whoops….it’s not constitutional”

          1. Well, obviously there are constitutional limitations. But we don’t run into them that often.

            1. I thought we lived in a DEMOCRACY. Those “constitutional limitations” sound anti-democratic to me…

              1. This isn’t a theory class, though. The reason an initiative process is good is for the reasons I stated, not because there’s no case for any counter-majoritarian checks at all.

      2. Armchair Lawyer : “…… attempt to preserve “traditional marriage”…until the system of constitutional democracy we have overthrew it.”

        Overthrew it? When exactly did that happen? It must have been within the last few weeks because I attended a Traditional Marriage not that long ago. There was a Traditional Bride and a Traditional Groom. The minister said traditional things and the couple repeated traditional vows. Afterwards we all had a very Traditional Reception.

        But you say that’s all been “overthrown” ?!? Pretty strange, because there were a great number of people there and no one had a clue what they were doing no longer exists (bride and groom in particular). We were all too busy having traditional fun….

        1. Enjoy being deliberately obtuse.

    3. The fear you evoke is that of direct democracy, not of a representative democracy like our republic.

      Madison likely wrote more on the subject than anyone other than Hamilton (mostly because Hamilton wrote more on everything, but almost always used the term pure democracy in differentiation from its use as in the people choosing their representatives.

      Our Founders fear was of pure democracy as being too easily incited and manipulated by a popular demagogue, so they insulated the passions of the mob from the levers of government through several mechanisms, including a three-way separation of powers (and further, a bicameral legislature), a severely limited chief executive, and the Electoral College (which, per an originalist interpretation, would have blocked the demagogic Trump from the presidency).

      It’s sad that ‘Republic, not Democracy!’ is now primarily used as little more than a sneering attack of right-wing echo chamber types, replying to someone’s innocent and mostly accurate passing reference to the USA as a democracy.

      1. (which, per an originalist interpretation, would have blocked the demagogic Trump from the presidency).
        What interpretation is that?

        1. The Federalist Papers

    4. “California has a taste of direct democracy in their many constitutional referendums.”

      Many Californians think that the taste is bitter

      1. But now that can assuage that bitterness with a toke.

    5. Well the founders knew very well what a parliamentary democracy looked like and chose to put some limits on it. The most limiting of the structures were not the Presidency and Supreme Court, contrary to popular belief, but the states and their power as opposed to the supposedly limited power of the federal government.

      State democracy generally works well, despite the contra-examples of Illinois, California and New York, which are self aware enough to know their self created troubles are so pervasive that they need a Federal government strong enough to dragoon the resources of the other states to bail them out.

      1. I think you need to review the data on net inflows and outflows of funds to and from the federal government on a per state basis. The states you mentioned are net contributors.

  2. Does she remember that we are supposed to be a union of separate states?

    1. Says who? Did you somehow miss the last 234 years of US history?

      1. Says the people that ratified the constitution.

        1. All, or almost all (there may be an exception or two) died long before most of that history.

          1. Indeed, and almost all the laws in force today were written by people who have since died. Is that supposed to matter?

            1. Sadly, given the accelerating pace at which laws are being written, that’s not really the case.

            2. “It is repulsive to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is more repulsive still if the reason for the law has long passed, and remains out of slavish obedience to the past.” Oliver Wendell Holmes

              1. Please note I typed the Holmes quote from memory; I’m sure if someone googles it they’ll find I got a word wrong here or there. I look forward to hearing about it from the pedantic assholes who think it saves them having to respond to the main point.

                1. You have the quote right, if my memory is correct.

              2. Very good for doing it from memory—a lot closer than I would have gotten.

                It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.
                —Oliver Wendell Holmes

                1. Shouldn’t the principle also apply to stare decisis?

                  1. Yes and no. I’m not a firm believer in stare decisis, but by the same token the law needs to be predictable. So there does need to be a balance.

              3. That’s not the reason for the rule of law, it’s just one of its minor flaws.

                But if we want to reform government to fix it then how about Heinlein’s proposal of a bicameral legislature, one house passes laws and needs 2/3’s assent, the other has the sole job of repealing laws and needs just 1/3 to assent.

                That’ll clear the deadwood out of the statute books.

                1. Didn’t Trump tell is cabinet heads that when they wrote 1 new regulation, they had to root out 10 no longer needed?

                  1. I think it was two, but something like that.

        2. Where does it say that?

          (Other than, obviously, in the bit of the Constitution that says how senators are elected, because that’s not really under dispute here.)

          1. “Where does it say that?”

            I dunno. In our country’s name?

          2. The 10th amendment:

            The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

            Of course one of the main influences was the United Provinces, where most of the power was in the provinces, that is likely the inspiration for a Senate elected by the states.

        3. Says the people that ratified the constitution.

          Ignoring the changes after the Articles of Confederation, the fact that the Federalists won the contemporaneous debate, and the Civil War Amendments.

          Other than that, awesome history.

          1. But none of that takes away the fact that we are still a collection of individual states. Does it?

            Obviously the stuff around and since the civil war changed the balance of power. A lot. But none of it changed us to a direct democracy.

            1. You changed the thesis from ‘union of separate states’ to ‘collection of individual states.’ Which is, at least to me, a much more general and defendable position.

              I don’t see anyone arguing we’re a direct democracy (nor should we be, as someone who got to experience California’s referendum system for 6 years). I argue only that KCar’s 8:50 am comment is stilly.

              1. While the initiative process isn’t perfect, the people haven’t shown themselves more silly or shortsighted than their legislature.

                1. While the California legislature strains mightily to win in the silliness arms race, I can tell you the referenda – at least those from when I started paying attention in about 2000-2004 were worse.

    2. I don’t recall people like her speaking this way when the Democrats controlled the Senate. Or condemning the Electoral College in early-mid-2016 when Democrats were boasting about their supposed Midwest electoral “firewall.”

  3. Here’s a paper that is bound to upset everybody. Voter ID laws don’t really combat voter fraud, but they don’t really suppress turnout either.

    1. It would certain add more legitimacy to elections. There has to be a reason this anti-ID is pushed so hard by the left.

      1. It’s opposed by the left because of the shenanigans that frequently accompany it.

        1. If anyone knows about shenanigans, it would be the left.

        2. It’s opposed by the left because a significant fraction of their electorate may have inadequate forged ID.

          1. If people are going to go to the trouble of forging ID, you don’t think they can forge ID that meets the new requirements?

            1. That’s kinda the point of new IDs. To make it so it’s harder to forge them.

              I mean, there’s an entire REAL-ID act and everything.


              1. People who oppose the use of Real ID for all important civic activities are highly suspect that they want loopholes for mischief

        3. A lot of shenanigans are coming out of Fulton County, Georgia…

          What’s that? Five sequential batches of absentee ballots that all have the EXACT SAME vote count? 392 for Biden, 96 for President Donald Trump, and 3 for Libertarian Jo Jorgensen. What are the statistical odds on that?

          1. You know what they say about statistics.

  4. CAPITOL INVASION INSURRECTION UNIVERSE MEGA WAR. The Biggest Baddest Only Riot in Human History where The Demon Hosts of UltraHitler Trumkkkkkkkkkkenfuhrer (allegedly) slaughtered OOOOOOONNNNEEEE policeman with a stray fire hydrant. Truly the greatest threat to the Omniverse since the beginning of time!

    1. Police died of an unrelated stroke days later. As to suicide, wouldn’t that seem a logical choice if you worked for Nancy Pelosi? When she speaks with that phony, dentured, superior way, I get urges to bang my head.

    2. There was one new development in that, Christopher Wray admitted that there is no evidence that any of the insurrectionists were armed.

      On the other hand I can see at least one good reason for a commission, no one has told Joe Biden yet that Brian Sicknick died of natural causes, he is still claiming he was murdered with a fire extinguisher.

      1. Check out the new charges on Guy Reffitt.

        1. Reading it, he doesn’t appear to have shot anyone, and it does not appear they actually have any hard evidence that he committed the crimes he’s accused of. I guess the gun charge depends on where his car was parked. They have no photographic evidence putting him any place it wasn’t legal for him to be.

          Pretty thin gruel compared to some of the things people got released without charges on last year.

          1. Pretty thin gruel compared to some of the things people got released without charges on last year.

            You continue to claim there was a double standard without evidence.

            Here, you argue that there may be some individual examples different from this one. Which is, of course, definitionally anecdotal.

  5. In the 2020 state level Republicans understood their responsibility to uphold the will of the people and certify the results as determined by the voters. What we did not see is a test of what would happen had those same people chose not to act responsibly? There would have been court challenges and a real test of how far a party can go to get it way. Can a state legislature simple appoint alternate electors without showing cause? Would a judge defer to the legislature in the absence of proof that such action was necessary? All interesting questions that are left for the future.

  6. The USSC isn’t doing its job. And hasn’t been for 80+ years. They’ve allowed to swallow a goodly portion of the political power that should reside, under the USC, with the states and with individuals.

    1. That’s because they’re not running the Mad Hatter’s tea party. The consequences of going back to what you’re proposing would be devastating.

      1. Devastating to whom, and how? Other than bureaucrats and statists, your mere assertion is lacking.

        1. Spend a few minutes actually thinking through what the economy would look like if we woke up tomorrow to find the federal government reduced to what it was in 1800.

          1. 5 of the top 6 richest counties would not be surrounding DC.

          2. What would it look like? Why do you think it would be substantially different?

            1. Because once people got used to the idea of an expansive federal government they adjusted their expectations accordingly, and a significant part of the market runs on the assumption of federal regulation, federal price supports, and federal economic assistance. Yank the rug out from all of that and there would be massive readjustment that would throw the market into chaos.

              Start with all the money the government pumps into the economy with federally guaranteed student loans, social security, medicare, medicaid, SBA loans, housing loans, and all the jobs held by federal employees that would disappear, leaving them all unemployed. Pull that money out of the economy and it would be a disaster. Eventually the markets would correct and recover, but in the interim it would be pretty miserable.

              Then there’s the fact that people know that businesses are kept honest (or at least dishonest) by regulation. We’re back to the days when a can labelled beef stew may contain beef stew or it may not. Or a company’s stock offering may be honest or it may be fabricated out of whole cloth. What impact would you expect that to have on the market?

              One of the criticisms I have of libertarians is I think they fail to appreciate just how much stability government provides that would not be there otherwise.

              1. “Yank the rug out from all of that and there would be massive readjustment ”

                A couple points.

                1. You’re arguing about the change, and how the change itself would be disruptive. But if it emerged naturally, that “change” wouldn’t occur. With no change, it wouldn’t be disruptive.

                2. That money is “pulled into” the federal government in the first place. If it’s not pulled into the federal government, then it’s available for dispersment from the people themselves.

                3. The states are perfectly capable of regulation on their own, and have been for ages.

                1. But the people tend to be less efficient in terms of how their spending helps the economy. A lot of the wealth of the top 1% is tied up in places that don’t do the economy a lot of good. If the government takes that money and builds schools, roads and parks, it does benefit the economy.

                  And yes, the states are capable of it, but if they had actually been doing it the feds wouldn’t have gotten involved in the first place.

                  1. “But the people tend to be less efficient in terms of how their spending helps the economy.”

                    You’re going to need some evidence to shore up that point.

                    Point 1: There are many private schools, private parks and private roads.

                    Point 2: What’s more efficient?
                    a. Person directly contracts with private school for schooling, directly paying them.
                    b. Government official taxes people, taking a salary, then takes the money from the people and pays the school, then directs (by law) for the person’s kids to enter the school, paying a cop and/or child services in order to ensure all that happens.

                    1. You’re assuming that what’s efficient in one specific case translates into what’s efficient for everyone as a matter of policy. Yes, at the individual level, freedom of contract frequently benefits individuals. Cumulatively, it leaves a lot to be desired if you’re looking at what is good public policy.

                    2. ” Yes, at the individual level, freedom of contract frequently benefits individuals”

                      And the sum of individuals is society as a whole…

                    3. Armchair Lawyer, that logical fallacy has a name. What’s good for individuals is not necessarily good for society or vice versa.

              2. Oh, I think we can agree that there’d be some disruption if the Court tomorrow restored enumerated powers doctrine, stopped treating the N&P clause as mooting all limits on federal power, and generally restored the Constitution to a document that created a limited federal government. People HAVE gotten used to the Leviathan.

                That’s not to say that we wouldn’t today have a functioning nation if the Court had never overturned all those rules in the first place.

                The challenge is how to roll things back to constitutional government from where we are. I guess, not abruptly?

              3. You are supporting the metered reduction of the federal govt. Celebrating the size of the Federal payroll is not a feat.ure, its a bug

              4. K_2,
                You have at least admit the possibility that the governmental redistribution of funds distorts the economy in undesirable ways. The house bubble of the early 2000s is only one example.

                1. Speaking of, I was listening to the latest Biden press conference. Sounds like they plan on firing up another housing bubble, the rhetoric was indistinguishable from the justifications for the policies that caused the first one.

                  Sadly, I put my home in Michigan on the market the day the bubble popped. Hope my timing is better this time around.

          3. “Spend a few minutes actually thinking through what the economy would look like if we woke up tomorrow to find the federal government reduced to what it was in 1800.”

            The United States became the world’s leading economy before the Progressive Era, let alone the New Deal.

            1. So what? Sorry, I’m not seeing what that has to do with anything.

            2. More specifically, conditions today are not what they were 100 years ago. That was then, this is now.

    2. They are the Nominated and confirmed by others of the Why would we exept them to do differently?

  7. I would humbly submit that the US Senate was created precisely to prevent “democracy”, and thereby protect minorities from the tyranny of the mob. The US was created as a constitutional republic. Which is why the fascists are using the corporations to enforce their will rather then the state alone.

    1. You’re confused. That’s what the Bill of Rights and the judiciary are for. What the US Senate was created for was to protect the slave states against the rise of civilisation.

      1. Your confused. It was to protect state sovereignty – which I get you don’t appreciate.

      2. That’s a profoundly ahistorical statement. The biggest slave state, Virginia, wanted proportional represetation as it was adopted in the House of Representatives. The small states, led by New Jersey, not know as a slave state, wanted equal representation, as was adopted by the Senate.

      3. “against the rise of civilisation [sic]”

        How was civilization advanced by the Dutch East Indies?

      4. You’re confused. That’s what the Bill of Rights and the judiciary are for. What the US Senate was created for was to protect the slave states against the rise of civilisation

        False. You’ve been misled by the woke who want to tie white supremacy to everything that ever happened in history. Police? Slave patrols. The Second Amendment? To fight slave uprisings. No, and no. Slave states were mostly bigger in population than non-slave,¹ so they’d have benefitted from proportional representation rather than equal.

        ¹A bit of a misnomer, because actually slavery existed across the country at the time.

  8. “The doctrinal problems include the Supreme Court’s failing to intervene against voter-identification legislation or partisan gerrymandering while at the same time having the temerity to invalidate part of the Voting Rights Act.”

    So, the writer is a partisan hack, and so are you.

    “Democracy” and “vote fraud” are mortal enemies. you can NOT have democracy when some people are allowed to vote multiple times.

    So, when you start out your “paen to democracy” by attacking efforts to prevent vote fraud, you reveal yourself as a lying sack of garbage.

    Partisan Gerrymandering was ratified by the Roe-giving Scotus in the 80s, when it was the Democrats who were doing it.

    Whining about it now, because it’s no longer helping your side enough, just further demonstrates your utter lack of principle.

    Which means that nothing else you have to say is worth reading

  9. The real enemies of “democracy”* are those who assume that their position is the true, most virtuous,** without pausing to pay due respect to counterarguments. There is a large intersection of those people with the hecklers on campus who censor Free Speech.

    * As usual, “democracy” as used by Baude and Karlan means whatever they want it to mean. It could mean, variously: The rule of law; Or the rule of the majority (i.e. mob rule of of few blue cities over the rest of us); Or Representational democracy with checks and balances.

    **Karlan’s real argument is that all these institutions are standing in the way of what she sees as the most virtuous legislation.

  10. “Those enemies are the ones who resist the peaceful transfer of power, or subvert the hard wired law of succession in office.”

    Is not the legally dictated way elections will be conducted part of the “hard wired law of succession in office”? So, what of all those election laws that were subverted last year?

    Had the election been conducted according to the laws in place, there would be far less basis for anybody to dispute the legitimacy of the outcome.

    And, yes, what Greg J said. Once you attack voter ID as vote suppression, you’ve identified yourself as either a partisan Democrat, or an ally to such. Basically every democracy on the face of the Earth requires voters to identify themselves in order to vote, it’s a basic requirement of running honest elections.

    1. Although I believe that voter ID laws are a silly solution to a vanishingly small problem, I would support a package deal that included voter ID along with several other measures that would, in the aggregate, make it easier for lawful voters to vote. Will the voter ID advocates do the same?

      1. Since voting is already extremely easy, at least in my experience, what would you propose to enact to “make it easier for lawful voters to vote.”

        1. Since voting is already extremely easy, at least in my experience,

          Maybe your experience is not universal.

        2. How about Universal automatic ‘Vote at Home’ practices, in which all registered voters are sent a ballot, which they can return by postage-free mail, local drop-boxes, or at any voting location (plus the option of early or election day in-person voting centers).

          Pre-2020-Trump, universal mail voting was pretty much a non-partisan position, growing increasingly popular in both red and blue states whenever it was implemented. In the 2016 presidential election, about 25% of all voters—more than 33 million—voted with ballots mailed to them (and returned either by mail, or dropped off at elections offices, polling places, or dedicated drop-boxes).

          That wasn’t just liberal states—it included most of Arizona, Florida, and Utah; 27 of 29 Utah counties; 31 of 53 North Dakota counties; and 40% of Alaska’s voters (the City of Anchorage). (Most of the numbers here are from a Heritage Foundation continuing project you can find by searching “heritage election fraud database”…which mostly serves to demonstrate how extremely rare meaningful election fraud really is.)

          Several pre-2020 studies show pretty definitively that vote-by-mail favors neither party—in fact, the biggest demographic who voted by mail were the elderly, who tended to vote Republican. But then Trump, as an early part of the Big Lie, came out against mail voting and told his people not to do it. So Trumpists everywhere started yelling Fraud! Cheating! Stolen Election! And what in 2019 was a non-partisan trend everywhere, suddenly became anathema to the sacred Book of Trump scriptures.

          But, where used, people like Vote at Home. A lot! Pretty sure it’s eventually going to follow the ACA Medicaid model, adopted first in Blue and split states, then grudgingly in deep Red country because nearly all voters grow to like it. Eventually, near-universal ‘Vote at Home’ (with the option of early and same-day in-person voting centers for those desiring it)—with improvements to nation-wide standardized vote tabulation practices, processes, and methods—will increase ballot access, voter turnout, security, and election accountability across the board.

          We should all welcome it.

          1. I could support that with a small change. The voter should have to request that ballot and re-request them every so often (two years maybe?). That way we know the voter wants to vote that ballot mailed to them and we know that the address is correct for that voter. Or at least we know its correct when the request is made.

            1. Harvey, on my second retirement in 2017, we decided to sell the big house in Colorado, downsize, and move to a walkable neighborhood wherever we could get the best value within a day’s drive to our extended families in Idaho (no more than 8 hours, versus the 14 hours from Colorado). Narrowed down to acceptable choices in Idaho (best housing prices and nearest family), and the Pacific Northwest (favorite location of places we’d lived). .

              Ended up choosing the Puget Sound area. There were several reasons, one of which was that we had come to appreciate Colorado’s universal, automatic, permanent Vote at Home system and Washington had the same process.

              Universal mail voting is just one example of a state government’s purposeful commitment to real equity for the entire population, while demonstrating the generally less authoritarian approach to government evidenced by the generally less intrusive state governments of Colorado and Washington.

              As to your specific concern, you may want to check out the Heritage Foundation’s election fraud database…which mostly serves to demonstrate how extremely rare meaningful election fraud—including absentee ballot hijacking or coercion—really is.

              1. I think that the statistics quoted about the rarity of ballot fraud, miss the point that there are many other way to manipulate elections contrary to the intent of having free, uncoerced cloice on secret ballots

          2. “How about Universal automatic ‘Vote at Home’ practices, in which all registered voters are sent a ballot, which they can return by postage-free mail, local drop-boxes, or at any voting location (plus the option of early or election day in-person voting centers).”

            So, you want to finish abolishing the secret ballot? After all, the secret ballot only really works if people are voting under controlled conditions, absentee ballots have never guaranteed it.

            Also, under your proposal, how do we know who actually cast any given ballot that shows up in that drop box?

            1. When I was a kid, my mother used to take me into the voting booth with her. How do we know I wasn’t the one who pulled the levers while the privacy curtain was closed?

              1. Nice reply.

              2. We don’t, but I doubt you had any leverage over her. Meanwhile we really have no way of knowing who actually fills out any given absentee ballot.

                And that’s the ugly truth of the matter.

              3. We don’t David, but in my neighborhood in Providence that would not allowed.

                But then the poll workers did not think that you were a altitude challenged member of the Communist party.

            2. Not sure what you are trying to get at here. It may be the case that if a husband and wife get ballots the husband say he will vote for both of them. But it could also be that the controlling jerk tells the wife how she should vote at the polls and that if his choice loses she going to get a beating. No system is perfect. I don’t see any more problems here than voting at the polls.

            3. Brett, as a matter of both (small ‘d’) democratic principles and simple ethics, representative democracy works best when all eligible voters have full, equal-in-fact ballot access. That means in voting arguments, all else being equal, today’s Democrats and Independents like me have a simple, obvious advantage: We support the principle of universal suffrage, while Trump’s alt-right ethno-nationalists and Republicans like you do not.

              So, whatever the circumstances, D’s start with an easily explainable bias toward wanting more eligible voters to vote. R’s, on the other hand, must undertake the difficult task of attempting to explain their much less easily justified desire of wanting fewer eligible voters to vote.

              So, as representative democracies like our Republic strive to reduce barriers to assured, secure, universal voting, D’s always have that huge head start of being able to work first toward reducing barriers for everyone eligible to vote. That’s an easy contrast to your necessity to start with proposals sorting out those eligible voters you’d prefer not vote.

              That’s why I support Democrats in a mutual effort to improve voting processes and thus, help America progress towards a more perfect union. You, on the other hand, parrot Republican’s pretextual ‘security’ fears as they continue to stand athwart history, yelling incoherently about insanely implausible election conspiracies.

              1. “Brett, as a matter of both (small ‘d’) democratic principles and simple ethics, representative democracy works best when all eligible voters have full, equal-in-fact ballot access.”

                That’s an interesting theory, but I note that neither small d democratic principles nor simple ethics are a form of empirical evidence. So your assertion really just collapses to, ‘representative democracy works best when all eligible voters have full, equal-in-fact ballot access, because I say so.

                Let me present the opposing view: Democracy is a decision making procedure, and you get better decisions if the decisions are informed. Becoming informed about the issues requires a non-trivial amount of effort.

                Thus it is to be expected if voting is made just a teensy bit difficult, to weed out the people who are so apathetic about voting they wouldn’t do the work of becoming informed voters, you’ll get better decisions.

                By just a teensy bit difficult, I don’t mean fire hoses and attack dogs. I mean the sort of trivial obstacles people routinely surmount to do anything they care about. Registering in advance. Finding you where your voting place is. Showing up there on election day.

                The sort of thing people routinely do if they want to shop for groceries, drive a car, you name it. The sort of thing anybody mentally competent is capable of.

                1. Ah yes, the eternal longing of some, to be the one who decides just who should be to vote. OK, in my judgement, You, in your longing for authoritarianism, exhibit your lack of qualifications. Extra barriers should applied to you and those who think like you, so as to reduce the percentage of you making it through the barriers to vote. And I make that judgement with the exact degree of logic and evidence you demonstrate. That is, none.

                  Try this extract from a recent Jonathon Bernstein essay matching common arguments against universal suffrage to common defenses of democracy (you can find it by searching on any reasonably unique sentence from the below. The whole thing is well worth reading, if just for the far better articulation of your argument than you manage):

                  Let’s be clear: There’s no case against universal suffrage in a democracy, and certainly not for restrictions based on the quality of the voter. [skip about 350 words covering points 1-4]

                  But even if that wasn’t the case, the argument that only sufficiently informed voters should participate is subject to a slippery slope. If eliminating the least-informed 20%, say, of the electorate would improve “democratic” outcomes, then why shouldn’t we eliminate 40% and get even better outcomes — or 60%, 80% or more?

                  There’s simply no magic line between qualified and unqualified voters — no natural cutoff above which we could say that someone is informed enough to contribute. If the point is to get the best public policy — and better-informed voters produce better policy — then we’re on a one-way road to government by experts.

                  Of course, people are free to argue for whatever form of government they like, including rule by experts, or rule by some group designated by birth in the right group, or rule by one political party. We just shouldn’t confuse those things with democracy — with the imperfect republic that the United States of America has become over the years.

              2. “D’s start with an easily explainable bias toward wanting more eligible voters to vote.” over a time scale such that the actual election can me manipulated. Over times when pollsters get information about who has cast a ballot and how to contact that person.
                That happened to me in CA. It is illegal in most civilized countries.

                You talk a good game but in fact your parties prefer to have lots of room to skate over the line of ethical behavior.
                Are the R’s honest in how they play? Of course that. RIchard J. Daley knew that and the downstate counties and cook country would play games about who could report their returns last.

                But i expect that you believe that such dishonesty died off decades ago.

        3. Yeah, the Devil is in the details.

          1. The devil might very well be in the details, but we don’t even get to the details unless voter ID advocates are willing to sit down and make a package deal. So far, no one has expressed willingness.

  11. Haven’t these people heard? Nobody loses elections anymore.

  12. Round up those “Republican agitators” and re-educate them. Then no further threats to democracy will remain. All will be harmony.

  13. Those who claim that the 2020 messiness represented a real threat to self rule are crying wolf.

    As to whether crying wolf is the real threat..

  14. Hi, William. This just Dem lawyers running their tiresome con, over and over. If you are sincere, try to calm down.

  15. God save us from people claiming to know The Real Answers.

    Hugs and pats on the head go out to them though. I wish we could send the hugs and kudos before the conception of The Real Answers.

    1. God save us from people claiming to know The Real Answers.

      Um, Ben, that describes you on this Conspiracy pretty well.

      1. I don’t make self-gratifying claims of knowledge or insight. I stick to the topic.

      2. Um, Ben, that describes you on this Conspiracy pretty well.

        Ben caught the big fish on his first attempt, Sarcastr0, the self-appointed Knower of All.

        1. Not really, Vinni.
          I often say on here when I only believe or haven’t seen sources or this law is not my field.

          Ben, on the other hand, knows what liberals are thinking, what’s good for America, what’s evil, when life begins, etc. etc.

  16. I think the situation is worse than that. For decades, the Supreme Court has created an impression that if you don’t like the rules, you can simply ignore them and make up new ones as you go along. You can identify “penumbras and emanations” or whatever mumbo-jumbo you care to refer to that lead to the result you want. Rules are for sissies, not people who believe in The Right Things.

    If you can find penumbras and emanations that tell you that a law enacted by the constitutional legislative doesn’t have to be followed when you don’t like the result, why in the world can’t you find penumbras anz emanations that tell you that election outcomes don’t have to be followed when you don’t like their results? If Having Your Heart In The Right Place trumps mere technicalities and fastidious legalisms when it comes to laws, why shouldn’t it do so when it comes to elections?

    The Court’s repeated use of raw power to override republican outcomes based on made-up doctrines created an atmosphere of expectation that rules simply don’t have to be followed if you feel strongly enough. Reaching the right result simply trumps technical legalisms like having to use the sissy rules of mathematics to count votes. If you want 2 plus 2 to equal 5, you can simply look in thise penumbras and emanations and “find” another vote, same as you can “find” another constitutional rule.

  17. Disputing an election is free speech. The constitution does not describe a democracy. That’s intentional. Its hard to change. Also intentional.

    It’s intentional so whack jobs like this chick don’t eliminate basic rights on 50-5- senate vote with Kamala breaking the tie.

    Who in the word gave this chick a law degree?

  18. Your fellow conservatives — Republicans, Federalist Society, Heritage Foundation, Trump, Volokh Conspiracy, Conspiracy fans, etc. — seem to be disaffected, dispirited, delusional, dumb, and bitter, Prof. Baude.

    With the obligatory dose of multifaceted bigotry seasoning the conservative commentary, of course.

    You’re on the wrong side of history and on the losing side in America, Prof. Baude. I encourage you to choose better playmates or recognize that you, too, are destined to become just another bitter, inconsequential, vanquished clinger.

    (And what’s so bad about reason, tolerance, science, modernity, freedom, progress, inclusiveness, and education, by the way?)

  19. This is the same lady who decided she had nothing better to do than make a smarmy comments about POTUS Trump’s minor child during a congressional hearing. This is her latest contribution? She doesn’t like SCoTUS because they do not see things her way, and she doesn’t like the structure of the Constitution…so she wants to toss it and do something else.

    Maybe she should go help and fix the antisemitic problems they have at Stanford before telling the country how they should govern themselves.

    1. She made no comments about Trump’s minor child. She made a pun that happened to involve the kid’s name.

      1. And she apologized. Something Trump never does.

      2. Why do you believe that she did not know that. The cancel culture does not grant such wide benefit of the doubt

        1. ? I don’t believe that she did not know that. Of course she knew that. Her statement was, “He can name his kid Barron but he can’t make the kid a baron.” But that’s not a comment about the kid.

  20. I think too much of the argument assumes its conclusion, that the election was close enough to fair that the result can be trusted. I happen to believe that was the case in 2020. It may not be true in 2028.

  21. Remember that in a majoritarian system, 51% of the people can decide that the other 49% should be slaves.

    1. Whereas Republicans appear to want the reverse.

  22. But because that was such an obvious offense to democracy under law, it was not the most insidious. We will prosecute and punish many of the offenders. We will put it behind us. We will probably even laugh it off.

    So long as Americans cast this controversy as a discussion about democracy, they will continue in confusion about the stakes and possible outcomes for the nation. Trumpism cannot be understood accurately as a challenge to democracy. It is instead a schism among the members of the collective sovereignty.

    The People are the ultimate rulers of the nation. It is their constitutive power which created the nation, decreed the Constitution, and which keeps limited government within prescribed bounds. It is sovereign power, and nothing else, which vindicates individual rights, which the People decreed and enumerated.

    An election result—once validated—is itself a sovereign constitutive decree. People may suppose voting is a right, but if they do so and leave it at that, their insight is less than complete. Voting is a sovereign power, with which governments may not tamper. A sovereign rules its government. The government may not constrain the sovereign.

    Trumpist Americans now contest against other Americans for national sovereignty, and pretend a power to overturn the sovereign decree embodied in the last election result. Were Trumpists to succeed, that would be the end of the People’s sovereignty, and the beginning of Trumpistic sovereignty—or, if Trumpists failed to establish anew a sovereign legitimacy to replace what their victory had destroyed, it would be the beginning of an interval of anarchy, of uncertain duration.

    Fights over votes and democracy are manifestations of the contest for sovereignty, not the substance of it. The substance of it is power, and the will to wield it to guard jealously the ability of the existing sovereign to rule at pleasure.

    There is little in evidence now to suggest the People’s will is fully mobilized, or even alert to its peril. There is even less evidence that the U.S. government stands ready to do its duty to suppress a still-ongoing challenge to the People’s sovereignty.

    Professor Baude’s prediction that this crisis will someday be laughed off could come true—anything is possible. But it is a conjecture which fails to appreciate the imposing reality of the nation’s current moment.

  23. “There is even less evidence that the U.S. government stands ready to do its duty to suppress a still-ongoing challenge to the People’s sovereignty”

    Those who believe the election was stolen are not challenging the people’s sovereignty, they are asserting it!

    1. ThePublius, your comment gets you into the neighborhood of the ballpark of being correct, but it doesn’t get you inside the park, let alone into the game. More germane is this famous remark, from John Harington:

      ‘Treason doth never prosper, what’s the reason? Why, if it prosper, none dare call it treason.’

  24. I agree the Constitution is flawed. We should just scrap the whole thing and go back to being independent states again. Start there, and then we can work on looking at how the states might come to an agreement for free trade and common defense.

    1. Well, it IS the most direct way for Democrats to achieve a ruling, not just nominal, majority: Start subtracting Republican office holders. I suppose Figliuzzi’s approach is slightly more humane than James Hodgkinson’s.

  25. “Those enemies are the ones who resist the peaceful transfer of power, or subvert the hard wired law of succession in office.”

    Then he discusses only the 2020 election cycle. The left tends to forget quickly the pressure for EC delegates to vote for Hillary instead of Trump and the coordinated effort of the FBI and DNC to overturn the election in 2016 by falsified means. Or the IRS interference in the 2012 campaign with its bias against conservative organizations.

    To blame only Republicans in opposing the “hard wired law of succession in office” is false and shortsighted. To believe the progressives are not going to do their best to subvert election laws in 2022 and 2024 is just shy of delusional.

    If elections are conducted according to the laws in place, not malleable while voting is ongoing (PA), etc. there would be far less basis for anybody to dispute the legitimacy of the election outcome.

    All but one country in Europe requires ID to Vote as does Brazil, Canada, Israel, Mexico, etc. When we brought voting to Iraq, voters had their fingers inked to prevent double voting. Why is voter integrity important everywhere except the United States?

  26. There is nothing undemocratic about the senate or the electoral college unless you assume a centralized, unitary system rather than a decentralized, federal system. If anything, a purely confederal system like the Articles of Confederation would be more “democratic.”

  27. Trump’s fantasies about really having been re-elected, his attempts to overturn the election, the January 6 attack on the Capitol, and the long-lasting, ongoing support by Republicans, have changed the landscape. Republicans no longer believe in democracy. They do not respect the legitimacy of elections that Democrats win.

    1. “Republicans no longer believe in democracy. They do not respect the legitimacy of elections that Democrats win.”
      Aside from the foolishness that Trump promoted, your claim is one that you cannot prove in any universal sense. Yet your assert the proposition in a 100% fashion undercutting any credibility that you might have.

      As for the question who lost the 2020 election. The answer is Trump, big time.

  28. The premise of your response is democracy is good and more is better. That is the argument made by Prof. Karlan. This is a false premise. Democracy is a necessity to governance but little else. It is certainly no guarantor of liberty and majoritarianism may in fact be little more than the means by which plunder is legalized. Like a nuclear reactor, democratic systems of government require control rods to prevent a dangerous reaction. Those control rods can include but are not limited to:

    – an indirectly elected head of government
    – an apolitical head of state
    – a bicameral legislature with one house chosen by means other than direct election
    – a written constitution of enumerated powers
    – a federal system rather than a unitary system
    – an independent judiciary

    Our Founders recognized the necessity to mitigate the worst tendencies of democracy with some of these elements. You and Prof. Karlan seem not to recognize the necessity for these “control rods”.

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