*This piece is part of the ACSblog symposium: "The Future of the U.S. Constitution"
by Neil S. Siegel, ACS Board of Academic Advisers Member and David W. Ichel Professor of Law and Professor of Political Science, Co-Director of the Program in Public Law, and Director of the DC Summer Institute on Law and Policy, Duke University School of Law
Some questions in American law and politics are timeless, but at certain historical moments asking them is especially timely.
The improbable election of Donald Trump resulted almost immediately in widespread protests around the nation. His victory subsequently inspired letters condemning his conduct and that of certain of his executive branch nominees; a sit-in by the NAACP at the state office of one of those nominees; boycotts of his Inauguration by many Democratic members of Congress; more protests and violence in the capital on Inauguration Day; and a Women’s March the next day that drew large crowds. Trump’s approval rating upon taking office was the lowest for any incoming president over the past four decades. Protests of his presidency and angry town hall meetings hosted by Republican politicians have since become commonplace.
Those responses are no doubt attributable in part to disagreements with what Trump and congressional Republicans promised they would do and are doing. It does not appear, however, that such responses reflect only substantive disagreement. There is also widespread frustration and anger that national political institutions have failed the majority of Americans—that unified Republican government will mean great changes in policy and tone that most Americans did not vote for and do not want. Thus the signs at the Women’s March that “he lost the popular vote” and the denunciations of the “fucking Electoral College.” Thus the debate that will not end over the relative sizes of the crowds at Trump’s Inauguration and at the Women’s March, a contest that appears to be a proxy war for which side won the election in the numerical, democratic sense, as opposed to the technical, legal sense.
What is one to make of Americans who display such signs, or condemn the Electoral College, or mock the size of the crowd on Inauguration Day? Those Americans appear to be lodging a process objection, in addition to a substance objection. It is democratically (as opposed to legally) illegitimate, they insist, for the electoral process to result in the election of officials who generate policy outcomes that do not reflect majority will in the nation.