Thread by @lessig

Ok, so seriously: this argument of some on the right that

BECAUSE "we're not a democracy, we're a Republic"

THEREFORE majority rule does not apply

is just stupidly silly and criminally ignorant about our actual history.

(FWIW: @cbinlosangeles)

I have already once made the point that by "Republic" the framers meant a "representative democracy" — so, e.g., if a "Ford truck" is a "truck," then a "representative democracy" (aka, "Republic") is a "democracy." See bit.ly/ARepublic

Not a "direct democracy," no doubt. And no doubt, the framers were not fans of direct democracy. But a "direct democracy" is just one form of "democracy," just as a "representative democracy" is too.

Yet now some double down on this silliness to insist that the Electoral College (and specifically the 12th Amendment) proves that by a "Republic," the framers meant that the majority was not to rule. Exactly the opposite is the case.

Very soon after the Constitution was enacted, it became clear that clever conniving could deny the winner of a majority vote for President the presidency — because electors didn't cast separate ballots for P and VP; instead, VP was to be the person came in #2.

Electors worked to avoid that in 1796. But we came exceptionally close to that happening in 1800. Jefferson (who had trounced Adams) was nonetheless tied in the EC — not with Adams, but with Jefferson's conniving VP, Aaron Burr.

Burr was supposed to assure that one of the Democratic/Republican electors would hold back their vote so that Jefferson would be #1, and Burr, #2.

But alas, Burr's people "forgot" and Burr ended up in a tie with Jefferson. That threw the election into the House, where the previous Congress (controlled by Jefferson's enemies) would decide who the President would be.

Hamilton (who at this point hated Jefferson) decided he would support a man whose principles he hated (Jefferson) over a man who had no principles (Burr). Jefferson was therefore elected.

But that near disaster drove the new Congress to immediately consider an amendment to the Constitution to fix that original mistake — by separating votes for P from votes for VP.

In the process of considering that amendment, there were some who argued the view I am attacking explicitly — that the system had to assure that the minority could control the Presidency.

But that view was OPENLY and OVERWHELMINGLY rejected, both in words and in the deed of enacting the 12th Amendment.

@Nedfoley has a fantastic new book about the Electoral College coming out in the fall with all the history — Presidential Elections and Majority Rule (Oxford 2019).

Thus, after the 12th Amendment, there should be absolutely no ambiguity that in this "representative democracy," aka "Republic," it is the majority who were meant to rule.

And no doubt that any argument to the contrary is based not in historical or interpretive fact, but in the recognition that the only way your side is going to win is to say that in a democracy, it is the loser who should be the winner.

Yet that statement is as true as "windmills cause cancer," and "forests should be raked to avoid forest fires," and it is just flat out embarrassing that people are not embarrassed to utter it.