A 100-day assault on America's Madisonian system

How well do we collectively understand how best to protect our constitutional democracy from this kind of sustained attack?

The Wisconsin Law Review has published my article “The Real Preference of the Voters”: Madison’s Idea of a Top Three Election and the Present Necessity of Reform. The timing is coincidental, but it provides an opportunity to take stock of President Trump’s concerted attack on the Madisonian constitutional system throughout his first 100 days in office and what if anything the system can do to withstand this attack.

The thesis of the article is that the core feature of the Madisonian system, which is the separation of powers, cannot sustain itself without electoral reform. The way we elect presidents puts the nation unduly at risk of electing a tyrant who is actually not the politician a majority of Americans most want to elect. Perhaps even more importantly, the way we elect members of Congress—both Representatives and Senators—prevents Congress from performing its essential constitutional role of checking a dictatorial president. The article explains that Madison, along with the other Framers of the Constitution, originally established the separation of powers without sufficiently considering the crucial role that electoral procedures would have in sustaining the necessary checks and balances. But over time, with experience as the Constitution was put into practice, Madison came to understand the importance of conducting elections with procedures that will effectuate “the real preference of the Voters,” as he put it in 1823 (long after the Constitutional Convention of 1787). It is our task, and challenge, to implement Madison’s late-in-life insight so as to preserve and protect the Madisonian constitutional system we inherited from him and his fellow Founders.

Much of the 100-day commentary I’ve seen has emphasized how much the public has soured on Trump. His poll numbers are down because of his overreach, and so forth. There are debates about the consequences of his increased unpopularity: does he dial back his authoritarianism in response, or does he accelerate insofar as he endeavors to govern in a way that is disconnected from public opinion?

As we ponder what might unfold in the future, I want to focus on a related but somewhat different point: for regular readers of Common Ground Democracy, it should be obvious why the public has reacted negatively to Trump’s first 100 days. As I’ve discussed previously, a majority of Americans wanted to elect Nikki Haley as a response to their negative assessment of Joe Biden’s presidency, but they were forced to choose between Trump and Biden’s stand-in, Vice President Harris, and so they chose Trump. Trump’s mandate, such as it was from winning the national popular vote against Harris, was to govern in the same way that Nikki Haley would have.

It’s not hard to imagine how Haley’s first 100 days would have differed from Trump’s. Yes, there would have been a popular crackdown on immigration in response to Biden’s excessively lax border enforcement (at least for much of his term), but there would have been nothing like the lawless and gratuitously crucial excesses of Trump’s terror tactics. Haley’s economic policy would have focused on inflation and targeted trade policy in way that did not involve recklessly self-destructive tariffs. On foreign policy, Haley would not have destroyed alliances, threatened to take over Greenland or coerce Canada into becoming the 51st state, or pursued a lopsided peace deal in the Ukraine-Russia war. On the cultural front, Haley would have cut back on perceived extremes of Biden-era “woke” initiatives without going overboard in the opposite direction.

In sum, if Trump had governed in his first 100 days in the way that Haley would have, his popularity would not have plummeted as it has.

The United States does not currently have an electoral system that enables a majority to express its preference for Haley over either Trump or Harris. Nor does it have an electoral system that enables a majority of voters in a state, like Ohio, to express its preference for a Haley-like Senator instead of either a Trump-endorsed MAGA candidate on the far-right or a Democrat on the left. Until the United States reforms its electoral system in accordance with Madison’s insight, to enable the candidate who is “the real preference of the Voters” to win, the country runs the risk of Trump and the MAGA-dominated Congress attempting to govern the country in a way that caters to the MAGA base but deviates from what a majority of the country wants.

I am not alone in thinking that America needs to change its electoral system. A new group has formed to advocate for the adoption of an electoral system that would achieve “the real preference of the Voters” in the way that Madison came to understand. The group is called Better Choices for Democracy. (Disclosure: I’ve agreed to be on its Advisory Board.) They are calling the kind of electoral methods I have been proposing, which are based on principles developed by the Marquis de Condorcet, “Consensus Choice Voting.” As regular readers of Common Ground Democracy know, I’ve been using the term “Convergence Voting” to refer to the category of Condorcet-based electoral methods. But whatever term is used, the substance is the same: electoral procedures should be structured to elect the candidate whom a majority prefer when compared one-on-one to each opponent. I encourage readers to check out the Better Choices website and to keep an eye on their activities in the quest for achieving electoral reform along these lines.