Senator Mike Lee is afraid. Very afraid.
He and other Republicans are concerned that the November elections could result in unified government — Democrats in control of both chambers of Congress and the presidency. The return of majority rule.
That fear may have been top-of-mind during the recent vice presidential debate at Kingsbury Hall. Lee became part of the story when he sent several provocative tweets. His trolling scored write-ups in The Salt Lake Tribune and The New York Times.
Perhaps to distract us from that pesky fly, Lee, who owes his job to democratic elections in Utah, tweeted, “We’re not a democracy,” and repeated the claim last week. He blamed Democrats for pursuing “rank democracy.”
“The word ‘democracy,’” Lee lectured, “appears nowhere in the Constitution, perhaps because our form of government is not a democracy. It’s a constitutional republic. To me it matters. It should matter to anyone who worries about the excessive accumulation of power in the hands of the few.”
True, but the word freedom doesn’t appear in the original, unamended Constitution either, and yet Lee still finds a way to read it into the document. Nor does the word “God” appear anywhere. Or “slavery.”
In truth, the United States is a democracy. It’s also a representative democracy. The Founders rejected the “pure democracy” model — each citizen votes directly on each law — of ancient Athens as impractical in a large state. So a more scrupulous tweet would have said, “We’re not a pure democracy.”
Rather than Lee’s “constitutional republic,” which leaves out the people, we are more accurately labeled a “democratic republic.” Sovereignty lies with the American people (democracy) whose will is checked by a written constitution that protects minority rights (republic). The interplay of these two ideas — democracy and individual liberty — is part of the never-ending conversation about the meaning of the Constitution. They’ve been at the heart of the current debate over wearing a mask during the pandemic.
The problem with Lee’s constitutionalism is he doesn’t leave room for this conversation. He believes the meaning of the Constitution was fixed at the Founding. Rather than a “living” document that evolves over time, Originalists like Lee consider the Constitution “dead, dead, dead” (Justice Scalia’s words), unchanged since ratification in 1789.
Behind Lee’s view of the Constitution is a radical suspicion of government power, which leads him to value liberty over democracy. Lee was first elected in 2010, swept along by the Tea Party wave, which in Utah was fueled by the writings of the late Mormon conspiracy theorist, W. Cleon Skousen. (Last month, while speaking at a Senate hearing, Lee waved a pocket-size copy of the Constitution published by an anti-government Mormon group founded by Skousen.)
“Whenever government acts in any degree,” Lee said during the campaign, “it does so at the expense of individual liberty [and] at the expense of the states.” Lee believes all government agencies are infringements on freedom. He wants to repeal the 16th (income tax) and 17th (direct elections of senators) Amendments, and end Social Security, among many other government programs.
By 2015 a BYU study ranked Lee the most conservative senator then serving in the Senate, and the most conservative Utahn to ever serve in Washington. Lee’s focus in the Senate has been on legal conservatism from his perch on the Judiciary Committee. After surveying Lee’s legal world view, Professor Jeffrey Rosen declared it “genuinely eccentric and extreme.”
So Lee’s tweets were all of a piece with his long-held, extreme anti-government views. Still, he was getting up to more than just provocation. Writing in The Atlantic, George Packer thought Lee may have been “laying the groundwork to contest the results or block an elected majority from governing.”
Once on the political fringe, radical conservatives like Lee are now part of the Republican main stream. His tweets should be treated as a warning that if Republicans lose the impending elections they will wield the same undemocratic, countermajoritarian procedures — Senate filibuster, federalism, conservative judges, voter suppression, partisan gerrymanders and norm-busting — they have used for years to obstruct Democratic majorities.
This time, however, raw power should be met with raw power under the rules.
The current extreme polarization of the two main parties has been decades in the making, but that trend accelerated over the last four years, and arguably has now reached a tipping point. Two Supreme Court appointments book-end this period. In 2016, Republicans in the Senate refused to give a Democratic president’s nomination for a Supreme Court vacancy an up or down vote eight months before an election. In 2020, the same Republicans confirmed a Republican president’s nomination one week before an election.
Although not barred by any rule, these partisan maneuvers were unprecedented, and lock in a conservative majority on the high court. Democrats bitterly consider them a bridge too far that destroyed trust.
The Trump administration lies in between. Donald Trump was not elected with a mandate to govern strictly for the benefit of himself and his supporters, but that is what he has done. His administration has been more divisive, hyper-partisan, corrupt and incompetent than probably any in history. Meanwhile, the Republican Senate has been the place where Democratic House bills go to die. Add to that the extraordinary lengths to which Republicans are going to block Democratic votes in battleground states in this election.
While Republicans have governed like a majority party, they are in fact a minority party. With one exception in 2004, Democrats have won the popular vote in every presidential election since 1992. In 2016, Democrats honored the rule of law that handed the presidency to the Republican candidate who lost the popular vote by almost 3 million. In 2018, successful Democratic candidates for the Senate received 17 million more votes than their Republican opponents. That same year, House Democrats received almost 10 million (8.6%) more votes than Republicans — the largest midterm margin of any party, ever.
Lee would say this is because we are a republic. Yes, but. In the real world, not in Lee’s tidy constitutional world, at some point a majority party will push back against a minority party that over-abuses its undemocratic privileges. Call it death by a thousand cuts.
Republican rule has brought us to that point, at a time when we desperately need our government to lead again, starting with a plan to defeat COVID-19. But if Democrats win unified government, Republicans will block their recovery efforts (just because they can). They not only drove the car into the ditch, they will also try to prevent Democrats from getting it back on the road.
What’s needed is a re-balanced mix of democracy and restraints. Come January 2021, if they win the Senate, Democrats should do unto Republicans what they have done unto them: dispense with most voluntary restraints — norms — and maximize power under the rules; in other words, match Sen. Mitch McConnell’s leadership of Republicans in the Senate.
This may include ending the Senate filibuster, adding two or more seats to the Supreme Court’s composition, and admitting the District of Columbia and Puerto Rico as new states. Any or all of these can be advanced with simple majority votes in Congress.
The 2020 elections could result in a (little d) democratic wave that triggers real change in Democratic governance, and the fear of that prospect may be why Lee felt the need to (falsely) lecture us on Twitter about our form of government.
David Burns
David Burns has degrees in history and law. He lives in Salt Lake City. Like Mitt Romney, he didn’t vote for Donald Trump.