Let’s begin with the word “legitimate.” In one dictionary two definitions are given in order of importance: 1) allowed by law and 2) reasonable and acceptable; in another dictionary: 1) complying with the law, or under the law, 2) complying with recognized rules, or traditions 3) well-reasoned and sincere and 4) having the right to inherit something such as the throne or a monarchy. It is clear from his language in the campaign for presidency and his actions during the first weeks of the presidency that Trump is legitimate as president in only the first meaning of the word. He was duly elected—I say this with the caveat that should it turn out that he or members of his team conspired with the Russians in hacking the emails of the Democratic National Committee, his presidency loses all legitimacy. (He flirted with treason, a high crime, when during the campaign, he invited the Russians to hack into Hillary Clinton’s server to retrieve 30,000 of her deleted emails—jokingly he later said, though no one seemed to hear or experience it as a joke.)
As for the other meanings of legitimate, that is, relating to rules, traditions, reason and sincerity, Trump exemplifies the antithesis. Is it, nevertheless, sufficient for him under the first definition to be accepted even by his most inveterate opponents as legitimate? The question of legitimacy, of course, is not abstract. We have the example of John Lewis and dozens of other Congressmen saying no, and they represent the sentiments of millions of citizens. The First Amendment of the Constitution grants the right to all citizens to accept or deny his legitimacy as president, whatever the facts may be. On the other hand, if Trump was duly elected, it may be unwise from the perspective of what is good for democracy for those in Congress to deny him legitimacy? Democracy depends upon the peaceful transition of power, and the refusal to recognize the winner, even a thoroughly obnoxious and dangerous one, creates a precedent that threatens democracy. Trump himself embodied the threat when he refused in one presidential debate to promise that he would recognize a winner other than himself. The response from media and audience was, rightly, outrage. Consider the nations in which the refusal to concede defeat in an election results either in tyranny or civil war. Ordinary citizens have wider latitude than officeholders in expressing their sentiments. Legislators are required to work with or against the executive branch in enacting law and risk diminishing their power by denying legitimacy to the winner of the election. It is even possible, though unlikely, that acknowledging him as a legitimate winner may move Trump to invite the opposing party to negotiate on contentious issues.
I doubt that Trump will make such an invitation whether or not his presidency is accepted as legitimate by the opposition. Given his temperament, I suspect it will make little difference to him one way or another. He is driven by a megalomaniacal belief in his own powers, the rightness of his judgment and a conviction that his supporters are undying in their loyalty. All he needs is the assurance of their support, which he apparently has, and which he will have even, as he says, if he shoots someone on Fifth Avenue. Raising the question of legitimacy at the start of his presidency may be a distraction from where the focus should be, which is on his language, policies and actions. If we can’t be rid of him for the next four years, ways must be found to constrain him in order to make sure that the worst will not happen.
Trump’s speech, behavior and action reflect his unfitness for the office. Fitness and legitimacy are not synonyms, but they are related. His unfitness may well lead to dangerous and illegitimate unconstitutional actions. In the very first week of his presidency, we have been given the spectacle of his fulfilling some of the more draconian promises that he made in the campaign: building a wall on the Mexican border, banning visitors from Muslim countries from visiting or migrating to the states, undoing key elements of Obamacare as a prelude to its repeal, all this without a cabinet in place or any indication that he had arrived at these executive actions with the benefit of consultation and advice from experts competent to give advice. He has no respect for precedent and no sense of the constitutional constraints on his executive power. He has shown consistency in his cavalier disregard for fact and truth in starting to launch an investigation of voter fraud to support his completely unfounded contention that Clinton received three to five million votes from illegal aliens and the deceased, all in the interest of supporting his claim that he and not she had won the popular vote. Precipitous, impulsive and imperious, Trump wants to show that he means to fulfill the promises he made during the campaign, regardless of consequences. Washington is a swamp, the system is corrupt: “I alone can fix it.” He himself is creating a swamp by refusing to disentangle his business interests from his role as president. (It may be left to businesses involved with Trump and his family to disentangle themselves from their enterprises. Nordstrom and Neiman Marcus may be leading the way in dropping Ivanka Trump from their inventory.)
His autocratic bent has already shown itself in his threats to withhold funding from states and institutions that criticize and demonstrate against him and in his talk of calling up military force to put down violence at the local level, i.e. gang violence in Chicago. The prospect in our relationship to the rest of the world is even more ominous. In introducing himself to foreign leaders of countries allied with ours, he proudly and gratuitously offended them with the paranoid justification that virtually all countries, friend and foe, have taken unfair advantage of us. What I have described is a leader that in the first weeks of his administration already shows himself unfit for his position and perhaps illegitimate, even in the first meaning of the word.
Think of the prospect of the next four years from the perspective of the ordinary citizen, especially a member of the majority that voted against Trump. He or she will have to endure a daily dose of incendiary falsehoods, draconian action and incompetence, the effect of which is a continuous battering of the morale and well being of a majority of citizens while the country will be “made great again.” He will provoke angry organized and unorganized response from ordinary people and from the media against whom he has already declared war. We may not have the full measure of the man. We do know he is thin skinned and that he too will be the object of battering. Will his skin be thick enough to hold together for four years? Will he implode in the chaos and furor he has created and have to be carried off or become the ward of a “regent” like Mike Pence, or even worse, Steve Bannon (see the 25th Amendment to the Constitution), or will the crises he creates intentionally or unintentionally (such as a terrorist attack) become a justification for calling out the military to suppress dissent? Or will the Congress have the integrity and courage to impeach and convict, should the evidence of illegal wrongdoing demand action? There is little evidence of this prospect. Our current Republican dominated Congress has little resemblance to the pre-Newt Gingrich Republicans who collaborated with the Democrats to impeach and convict Richard Nixon.
The focus of the question of legitimacy should not be exclusively on Trump and his behavior. So long as it is always possible under our constitution to elect a candidate who loses the popular vote to gain the presidency, we cannot regard the election that realizes this possibility as truly and legitimately democratic. This has occurred several times in our history, most egregiously in the current election, Trump having lost the popular vote by close to three million votes and having won the votes that made possible his victory in the Electoral College by less than one hundred thousand. He himself implicitly acknowledges this undemocratic situation by insisting that he won the popular vote if we subtract millions of votes Clinton received as illegal. The Electoral College prevails over the democratic principle of one person/one vote. (Few people are aware of the grotesque fact that it is mathematically possible for a candidate to have only 23% of the popular vote and win the Electoral College.) Defenders of the Electoral College may argue that the charter is by national consensus the supreme arbiter, and if there is a desire to eliminate the Electoral College, there is always an allowance within the Constitution for amendment. But conditions for amendment are so onerous, given the bitterly divided politics that prevail, that amendment has virtually become impossible. The appeal to the supremacy of the Constitution may be legally sound, but morally and politically vulnerable. (At one time in our history, a slave was constitutionally 3/5ths of a person. The Constitution, a human creation is not exempt from the charge of being unjust.) The Electoral College, it should be noted, was instituted by the Founding Fathers, to prevent populist demagogues from coming to power, from what would later be characterized as the tyranny of the majority. What we have now is an irony of history: the election of a demagogue and the tyranny of the minority, the result of the Electoral College.
We are in uncharted territory. The hope that Trump will moderate his behavior and become more reasonable and conciliatory seems like sheer wishfulness. We do not have to wait and see. We have needed only the first weeks of his presidency to realize that the wait is over, and we see what is before us. What we need is resistance to the most destructive and dangerous policies and actions of the executive and a constant pointing out of the undemocratic illegitimacy of the Electoral College. (Irony of ironies, perhaps the most effective form of progressive resistance will be the assertion and practice of states rights with California, New York and Massachusetts in the forefront.) We need also to iterate and reiterate that Trump does not have a mandate; the majority that “lost” the election must have a role in the governance of the nation. Our constitutional system is ideally based on the separation of powers, which requires negotiation and compromise. It is the wisdom of Lincoln’s House Divided speech. We should have learned the bitter lesson of the Civil War, an apocalyptic realization of a divided house. We need dissent, protest and resistance to unjust policies and actions, but we also need a persistent willingness for opposing sides to find common ground. Calls for unity are generally addressed to one side of the political spectrum to do battle against the other side, the effect of which is to intensify the divisions between opposing sides. Conciliation is possible only when there are values shared by both sides. If liberals and conservatives truly hold dear the First Amendment and its guarantee of our freedoms, then they should unite against the threat of authoritarian rule. In attacking the fitness and legitimacy of Trump as president, one must try to dissociate the Republican Party from him. This is very difficult to do, since its dominance owes a great deal to Trump’s victory. Also, as Paul Ryan has admitted Trump and the Establishment have much in common in their domestic agendas. But the Republican leadership should be reminded again and again of Trump’s authoritarian bent, which is inimical to its professed devotion to liberty. I am not hopeful about the prospect of such an appeal to the Republicans, who have shown little backbone and integrity in the matter, but it is worth making the effort.
The successes of protest and resistance may prove to be short lived if they depend on simply vanquishing the enemy. The resentment of the defeated doesn’t vanish. Lasting success in a democracy requires accommodating the interests and desires of the losing minority. It is the liberal side that needs to battle against the destructive polarization of political base against political base. Any victory in our current polarized situation is bound to be temporary, given the rotation of power. The winner of an election, if on the opposite side of his predecessor, feels no obligation to respect the legacy of his predecessor. Trump and the party he leads are the perfect example. Rather than building upon Obama’s legacy, correcting and improving what they inherit, they seem determined simply to destroy it. The answer to the Trumpian politics of anger, divisiveness and destruction is a vigorously asserted politics of inclusiveness, including those misguided white members of the working class who voted for Trump.