Trump Needs a Lesson on the Constitution

News & Politics

That’s not how this works. That’s not how any of this works.

I think Trump was, on average, a good president, and it would make an interesting article in itself to collect times when Trump said something, was derided and dismissed, and was then proven right. (Like when he predicted that Germany depending on Russian natural gas would turn around and bite Germany. It was the subject of great merriment and fact-checking then. But who’s laughing now?)

But he’s not always right. This is one of those times, and, disappointingly, he’s echoing something that a whole collection of ignorant schmucks have been saying since the 2020 election.

I think there’s a really good argument that one way or another, Biden was elected less than honorably, whether there were enough illegitimate votes (the bastards) to turn the election or just a left-wing cabal to turn the election, as Time openly admitted. Bragged about. At some point, there needs to be a reckoning, as Glenn Reynolds says, for this failed presidency.

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But this idea of an election redo has one problem: the Constitution doesn’t provide any mechanism for a do-over.

The details are laid out in great detail in Article II Section 1 of the Constitution as amended by Amendment 12. Go read the whole thing, but here are the main points:

  • Each state appoints electors, with each state getting a total number of electors equal to the number of senators and representatives. So Wyoming gets three, and New York gets 29.
  • These electors cast votes, which go to the president of the Senate, who in normal conditions is the sitting vice president.
  • The president of the Senate opens the sealed votes in the presence of both Houses, and the votes are counted. The winner of the majority is elected president. If no one gets a majority, the House decides by ballot who among the candidates gets the office, with the one little tricky point that the vote is taken by state, so Wyoming and New York (and all the other states) having one vote each.
  • When this process is carried out, the vote is certified, and the president is chosen. Done.

But here’s the trick. Once this process is carried out, the person elected is president. No appeals — no court, not even the Supreme Court, has jurisdiction. The legislature, being co-equal with the judicial, is not subject to the judicial branch’s authority. Once the vote is certified, that’s it.

This is a good solution to the problem of electing the executive because it settles the question for the next four years. Otherwise, every time some group gets sufficient leverage, there would be an attempt at a do-over, and every time it came up, the losing side would immediately start their own challenge. It would be effectively a parliamentary system, and the Founders, having dealt with a parliamentary system, wanted very much to avoid this.

What Trump and thousands of vehement tweeters want is a way to decertify the election and run another. This would be chaos, and what happens if they have another election and that election has its own flaws? Then another election, another do-over?

I’m enough of a libertarian that I see a little chaos as a good thing, but this wouldn’t be a little chaos. It would be a buttload of chaos, and it could go on for months or years. By the end of it, we could end up with the country broken into a bunch of little separate satrapies, each claiming to be the real government of the United States, though in reality no longer united.

We’ve seen this movie before. What comes to mind for me is the Warring States period in China, which went on for hundreds of years as each of a bunch of smaller states fought for control. Now, 2,500 years later, we see it as an exciting and productive time, but for people living then, it was a centuries-long clusterfark. If “may you live in interesting times” were a real Chinese curse, this is what they’d be talking about.

You could look back to the late Roman Empire or the downfall of the Ottomans as easily; the point is that this is the opposite of stability and is thoroughly undesirable. Even worse, historically, what followed was never a representative democracy. The result was always an authoritarian aristocracy.

The Founders were great students of history; they clearly knew the history of Rome — we call it the Senate, after all — and they thought long and hard on exactly how to establish a system that would be relatively stable. It’s for that very reason they established a system that elected an executive once and for all until the executive’s term ended.

To change it, you’d need to throw the Constitution away by amendment or revolution. No one with any sense wants that; I don’t think Trump, given a moment to think about it, would want to put the country through that.

As on other occasions, this was a wonderful opportunity for Trump to stop and think.

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