Trump didn’t get a mandate, because no president ever does

President-elect Donald Trump has won a stunning victory. In the early morning hours after Election Day, he immediately claimed a mandate from the people. Trump crowed that “America has given us an unprecedented and powerful mandate.” His soon-to-be predecessor, President Joe Biden, said something less boastful in 2020, claiming a “mandate for action.”

But the truth is, every such claim of a mandate is rubbish. The insistence on a popular mandate by any victor is invariably a self-serving claim masquerading as objective analysis.

Where the claim of a popular mandate began is hard to say. The Constitution requires no such thing. As the Constitution does not require a popular vote for the presidency, it should not be read as requiring people, or politicians, to respect a mythical mandate from the citizens who vote for electors who then vote for the president.

Perhaps the origins of the popular mandate lay with President Andrew Jackson. His 1832 reelection campaign became, among other things, a referendum on the controversial Bank of the United States. In 1832, the bank’s supporters wanted to renew its charter, two years before the expiration of the existing charter. Jackson vetoed the recharter, arguing that the bank was too powerful, corrupt — and unconstitutional.

After his reelection, Jackson said that the people had given him license to wage war against the bank (he never used the word “mandate”). In a message to his cabinet, he wrote he “consider[ed] his reelection as a decision of the people against the bank.” He later ordered the removal of all federal funds from the bank, thereby crippling it.

Jackson’s idea of popular mandate was rightly mocked by Rep. Henry Clay: “Sir, the truth is, that the re-election of the president proves as little an approbation by the people of all the opinions he may hold ... as it would prove that if the president had a carbuncle ... they meant, by re-electing him, to approve of his carbuncle.” Clay also noted that electors take a candidate “as a man takes his wife, for better or for worse” with no endorsement of the “bad opinions and qualities which he possesses.” Clay’s distinction has always been true, especially now.

The idea of a popular mandate, which became a fixture by late in the 19th century, is too beguiling. One 19th-century commentator complained that the Framers “should have foreseen that the election by the people ... would result in a popular mandate” for the prevailing candidate. But this was more than a little unfair, because the Founders did not know that every state legislature would eventually choose the popular election of electors. Nor did they imagine that electors themselves would serve as rubber stamps of their electorates. A Jacksonian popular mandate exists only because of these two unanticipated practices.

The public and commentators often focus on who won the presidency, not the size of the margin in the Electoral College or even who won the popular vote. Indeed, sometimes a popular-vote loser is said to have a mandate. Former Speaker Paul Ryan (R-Wisc.) said this of Trump’s 2016 victory. But a mere Electoral College majority is certainly no reason to assert that a majority of the people has spoken and has implicitly endorsed a long legislative agenda.

To be sure, some voters support everything Trump espouses. But many of his voters did no more than decide between the two main candidates on offer. Millions were merely signaling that they preferred one candidate, on balance, over the other. And some voters disdained both candidates even as they voted for one of them.

Hence, while it is true that voters back candidates and that every candidate espoused policies during the election, it is not true that those voting for the winner meant to endorse every policy the winner espoused. To the contrary, this claim defies common sense.

My point has nothing to do with resistance. Trump’s legislative agenda will no doubt command the support of many elected officials. Republicans will do so either because they agree or because they will bend the knee. They do not wish to be primaried, as so many of Trump’s GOP opponents have in the past. Some Democrats will support a few aspects of his agenda as well, principally because they come from swing districts and want to be seen by voters as supporting some reasonable proposals. Furthermore, when we can discern, via polling, that the public endorses some policy, politicians should be responsive to what the people favor.

What must be rejected is the attempt to foist upon the American public the canard that “We the People” just embraced everything that Trump espoused during the campaign. We did no such thing.

Saikrishna Prakash is the author of "The Living Presidency" a professor of law and Miller Center senior fellow at the University of Virginia.