That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed…
Last Friday, Donald Trump took the oath to become the forty-fifth president of the United States.
Civil rights icon and U.S. Congressman John Lewis spoke for many when he declared that the Trump presidency was not “legitimate.” He was right.
The democratic tradition captured in the words of the Declaration of Independence is unequivocal: It is the consent of the governed that provides a government with legitimacy, with its just powers. That consent is expressed through free and fair elections in which every citizen has the right to vote.
The Trump presidency fails this test of legitimacy on four substantive grounds.
The Grounds of Illegitimacy
First, Hillary Clinton – not Donald Trump – was the winner of the popular vote, and by a substantial margin of nearly three million ballots. It is only the persistence of America's archaic and anti-democratic Electoral College that subverted the will of the voters.
Second, Donald Trump would not have won even the Electoral College without the suppression of African-American and Latino votes. Voter suppression has a long and disturbing history in the American polity, with roots in the enslavement of African-Americans and Jim Crow segregation. The 1965 Voting Rights Act brought real progress in securing the right to vote, but the Supreme Court’s narrow 5-4 decision to strike down the core of that law in Shelby v. Holder has opened the door to a new wave of voter suppression.
It was narrow victories in a number of battleground states – Florida, Michigan, North Carolina, Ohio, Pennsylvania and Wisconsin – that gave Trump a majority in the Electoral College. In the wake of Obama’s election, each of these states has undertaken voter suppression. In each case, Republican dominated state governments passed laws and adopted regulations designed to provide themselves with a partisan electoral advantage by making it more difficult for people of color, especially those living in poverty, to vote. A difference of 80,000 votes in just three of those states – Michigan, Pennsylvania and Wisconsin – would have reversed the election results. Given the closeness of the vote, these steps to suppress the vote had a decisive effect on Election Day.
Complicit in voter suppression today are two other anti-democratic features of our political system – the unlimited use of money in the electoral process and extreme partisan gerrymandering of legislative districts. Both have contributed mightily to the extreme partisan polarization on the right that has made voter suppression possible.
Third, while the full reach and scope of its interference in the 2016 election is still being investigated, it is now clear that the Russian state was behind the hacking of Democratic National Committee and Clinton campaign emails, and that it released them through WikiLeaks and other outlets with the specific intent of aiding the election of Donald Trump. It was also clear that this was done under the direct instruction of Russian dictator Vladimir Putin. In and of itself, the interference of Putin and the Russian state in America's presidential elections raises questions about the legitimacy of the outcome.
Fourth, one of the most important and indispensable features of a free and fair election is the neutrality and non-interference of the machinery of the state, especially the armed forces, police and national security apparatuses. International human rights and democracy advocates have insisted upon this principle in their evaluation of elections across the globe. FBI Director James Comey, the head of our national police, violated that principle of neutrality and non-interference twice: first when he broke with clear precedent to comment negatively on Hillary Clinton’s emails as part of the announcement that the FBI investigation had found no evidence of violations of the law, and then late in the campaign when he ominously announced that the FBI was reopening its investigation for what was quickly shown to be emails it had already reviewed. There is compelling evidence that these interventions changed the trajectory of the election. What is particularly damning about these actions is that we now know that, at the same time, the FBI was also involved in investigations involving far more serious allegations regarding Russia's interference in our election process and alleged cooperation between the Russian state and the Trump campaign – and yet Comey remained completely silent on these matters.
What Legitimacy Entails
We need to be clear what is at stake here. The issue is not that Donald Trump spent eight years denying the legitimacy of the first African-American president of the United States by propagating the racist lie that he was not an American citizen, as unforgivable as that was. Nor is the issue that the Republicans in Congress engaged in a politics of obstruction from day one of Barack Obama’s tenure, refusing to allow the normal processes of governance to work, as destructive of democratic norms as that was. For those of us who believe in democratic government, legitimacy cannot become a question of political retribution.
(However, it is worth pointing out that those who did everything in their power to undermine the presidency of Barack Obama for eight years, when no substantive matters of legitimacy were then in question, lack all moral authority to call on the American people to unite behind a Trump presidency.)
And the issue is not that Trump employed a toxic brew of racism, misogyny, religious bigotry, anti-immigrant and anti-LGBTQ animus, with demagogic and authoritarian appeals, to win the office he now holds. That gives us every reason to oppose Trumpism as a politics with all of the power we can muster, but it does not speak to the legitimacy of his presidency.
“Not My President” has become an understandable slogan of personal refusal in the face of the Trump presidency, but it should not be mistaken as a claim that a government must possess the consent of every individual to be legitimate. Rather, the issue of legitimacy is this: A government must have the consent of the governed as a whole, expressed through elections that are free, fair and transparent. Donald Trump’s presidency does not meet these criteria: he’s “Not Our President.”
All that American citizens committed to the principles of democracy owe the Trump presidency is resistance.