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[Noah Feldman] Last check on presidential power

After four years of President Donald Trump’s assault on the US constitution, it comes down to this. The courts have done what they could to limit the damage; the House of Representatives impeached him; and the Senate let him get away with it. Now all that remains is the final check provided by the constitution: a vote of the people.

James Madison would have seen this coming. While the constitution was being ratified, he argued that its checks and balances would preserve the liberty that the document was supposed to enshrine. “Ambition must be made to counteract ambition,” he wrote in the most famous of the Federalist Papers.

Yet within a few years, Madison had come to believe that the system he did so much to design was vulnerable to subversion. The checks and balances written into the constitution were not enough to withstand a powerful president like George Washington if he was backed by an organized political party with a monarchic ideology.

The only possible check on partisan power, Madison came to believe, was the people, voting en masse to restore their liberties. With Thomas Jefferson, he formed the first Republican Party (sometimes called the Democratic-Republicans) to fight the Federalists of Washington and Alexander Hamilton. In 1800, when the Republicans won, Madison and Jefferson saw it as a moment of salvation. The people had restored the constitutional balance when the constitution itself could not.

The first lesson for 2020 is obvious: The only way Trump’s constant attacks on the constitution can now be repudiated is by voting him out. The people can do what the courts and the US Congress could not or would not. They alone can send the message that Trump’s sustained and systematic attack on our institutions is dangerous, wrong and anathema to “small r” republicanism.

It’s not inevitable that the people will save the republic. Madison understood that a republic could only survive if the people possess political virtue. If the people lacked that quality, the republic would fail. The example of Rome was never far from the minds of the framers. It was the greatest republic they knew, and it had devolved into an empire. It could happen here.

And a simple majority of the people won’t be enough -- because the constitution isn’t majoritarian. We see this most clearly in the Electoral College and the structure of the Senate. Madison supported the one and hated the other.

The point of the Electoral College was to ensure an advantage to Southern slaveholding states by recognizing three-fifths of a state’s enslaved population. As a Virginian, Madison was on board with this model. He had even suggested the three-fifths number himself.

When it came to the Senate, however, Madison was outraged by the idea that representation would be two per state rather than proportional to population. Indeed, Madison left the Philadelphia convention in 1787 not triumphant at having achieved most of his goals, but deeply frustrated that the small states had successfully achieved their single demand, equal representation in the Senate.

As a result of these two compromises, a popular majority won’t necessarily win the presidency; and a relatively small percentage of the overall population can control the Senate. We are living in an era where these two potentialities have frequently been realized. That means that 50 percent+1 of the people aren’t enough to serve as a check on power.

If a majority of the people vote for Joe Biden and for Senate Democrats, but Trump wins the Electoral College and the Senate remains Republican, the nondemocratic elements of our constitution will have blocked the people’s efforts to reject Trump and Trumpism. Madison’s constitution will be revealed as antique, tottering and vulnerable. And that will mark a crisis of legitimacy for the document itself.

If, however, enough of the people vote to get rid of Trump and punish the Senate for acquitting him, Madison’s constitution will be back on track. It still won’t be perfect. But the constitution never was perfect -- not even close. The United States is not perfect. We the people of the United States are not perfect. But in a system full of checks and balances, we are the last.

Noah Feldman
Noah Feldman is a Bloomberg Opinion columnist. -- Ed.

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