The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Who We Are
Ruminating on what happened last week.
Well, we (see below) did it! We elected the guy who had tried to overthrow the duly elected government of the United States to be our President. Like a lot of people, I'm trying to understand what that means, both for the moment and going forward.
Bret Stephens, in a NY Times essay Eugene referred to in an earlier post, chides Harris supporters who rationalize their loss to a man "they saw as a twice-impeached former president, a felon, a fascist, a bigot, a buffoon, a demented old man …" by adopting the theory that "a nation prone to racism, sexism, xenophobia and rank stupidity fell prey to the type of demagoguery that once beguiled Germany into electing Adolf Hitler." This, Stephens asserts, illustrates the "broad inability of liberals to understand Trump's political appeal except in terms flattering to their beliefs, [which] is itself part of the explanation for his historic, and entirely avoidable, comeback."
OK, fine. Let's have that conversation. Let's put aside all talk of racism, sexism, xenophobia, homophobia, or stupidity. What happened on Tuesday was not about any of that; it was about taxes and trade, and/or the overall state of the economy, and/or the rights of trans people, and/or immigration policy, and/or access to abortions, and/or vaccine mandates, and/or any of all of the many other issues on which Harris and Trump had vastly differing views.
My problem with that is that I can't get past the threshold. As I've said before, for me, involvement in, or overt support for, an attempt to subvert the peaceful transfer of executive power through unconstitutional extra-judicial means is absolutely disqualifying in a presidential candidate.
[I should add that I am not talking about a legally-enforceable disqualification, such as the one enacted as part of the 14th Amendment, or criminal liability, or anything of that nature. I'm talking about my vote - my personal determination of who I think is fit to lead the country.]
I had always thought, to the extent I had occasion to think about it, that pretty much everyone felt pretty much the same way. There's not much, in our system of government, more fundamental than the idea that we get to choose those who govern us, and that our choice, whatever it may be, will be respected. We can throw the bums out, as needed. We express our choice(s) through the ballot box. We have a process, worked out over the last 200+ years, to count up the votes and to declare a winner and a loser, at which point the losers make way and the winners take over. It's pretty basic and pretty straightforward, no?
Obviously, not everyone feels the same way. Many of my fellow-citizens - perhaps even a majority - disagree with me. I'm trying to understand how that can be true. Just as a matter of logic, it must be that either (a) they don't think that Trump was a participant in the scheme to overturn the 2020 election results, or (b) they don't think that participation in such a scheme is disqualifying in this sense.
Precisely because the American people are not stupid, I rule out (a). I mean, come on. It's not like Trump has backtracked, disavowed the scheme, apologized, or, as far as I can recall, said a single critical thing about the members of the armed mob that broke into the Capitol (reserving his criticism for those who refused to carry out their parts in the scheme, like Mike Pence and Brian Kerr). He was with them in spirit - the pressure on Pence, the fake electors, the phone calls to State election officials, the failure to step in for four hours after the Capitol perimeter was breached, . . . Everybody gets what was going on, right? He did what he did, and he's proud of it.
So it must be (b).
That, I admit, makes me pretty nervous. I don't know what kind of country we have if we no longer have a shared vision of the inviolability of our election results. I guess I'm about to find out.
Is this a case of "trying to understand Trump's appeal in terms that are flattering to my beliefs," in Stephens' terms? Maybe. I'll let you decide.
So that's the "it" in "we did it." Let me say a few words about the "we."
Americans are proud - justifiably - of living in a place where "we, the people," get to decide who our rulers are going to be. We weren't the first to come up with the idea, but we were the first to implement it on a large geographic scale, and the processes we have developed to do that, imperfect though it surely is, has stood us in reasonably good stead for over 200 years. We get, more or less, the government we want, and we resolve our differences about precisely what it is that we want through the ballot box.
Obviously, I didn't elect him. But he didn't steal the election (though I strongly suspect that he would have tried, as he tried before, had he needed to). He didn't even need the built-in small-state bias of the Electoral College. As far as I can tell, he won, fair and square.
So that's who we are: The kind of people who would elect this guy to be our President. He speaks now for all of us, including those of us who can't stand him and didn't vote for him. That's the way it works.
So I suppose that means that I can't really complain if he brings about the kind of change he talked about: imposing high tariffs on imported goods, deporting large numbers of undocumented immigrants (and policies designed to stanch the flow of new immigrants into the country), dismantling Obamacare, no new restrictions on armed weaponry, elimination of the child tax credit, relaxation of environmental standards across-the-board, dismantling the federal civil service and the Department of Education, . . . That's what we want, so it's going to be hard to complain if/when he tries to give it to us - at least, not if he does so via legal and constitutional means.
To my way of thinking, it's a nightmare scenario. But it's apparently what we want, and it might well be what we get. I don't think the American people will like living in that country. I could be wrong about that, but I'm already looking forward to the 2026 midterms.
