A Messy Experiment: American Practice of Democracy

Anytime a high-profile political incident happens, like the freedom of assembly turns into a riot because of excessive use of police force, or freedom to bear arms leads a wild man to perpetrate mass killing, or in connection with political elections or in a Presidential actions an intense public debate over the system ensues. Not too long thereafter, a general agreement is reached that the incident in question was due to the system built in the Constitution, and democracy is an imperfect (maybe messy) “American experiment”. As such it is forgotten until the next such occurrence, which ends with the same lackadaisical conclusion.

One would wonder whether two hundred twenty-nine years of experimentation would not be enough to learn a lesson. If it is not enough, then one would conclude that there must be something wrong either with the method of experimentation or with the people engaged in the experience, or with both. It may be both.

The Constitution is amendable

As to the first point, some possible frailties of democracy were foreseen by the framers of the Constitution (commonly called Forefathers maybe because mothers did not have any wisdom or voice at the time). But the then known shortcomings were sacrificed for achieving the joining of some intransigent and greedy local land and slave owners in the Union. Presumably because of that history, the Forefathers expressed the intent of the Constitution, “in order to form a more perfect union, establish justice” (emphasis added). They did not say anywhere in the Constitution thou shall not alter any part of this treasure we are bequeathing to you nor did they engrave the Constitution on stone. They were aware that laws are made by the people, for the people, of the people, and that people’s changing needs may require changes to the document. They provided for this in its Article V. And soon after the adoption of the Constitution they drafted the Bill of Rights which is effectively additions and clarifications to the Constitution. Most importantly, its Article IX provides that “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people”. This is the most progressive and realistic provision of these basic documents for it foresees the evolution of the society and its future needs for additional freedoms that may need to be regulated. It is worth noting that four out of six last amendments to Constitution since 1933 concern the presidential office. Therefore, the general reticence to amending these most important basic documents as the society evolves can only be attributed to the outmoded power hunger of States who seem to believe in perpetuating an imperfect union.

The miseducation of the people

As to the second point, an introspective reflection would reveal the handicaps that hold our society back from challenging the social, civic, legal, or traditional establishments and facts. One glaring characteristic of our society is that its interest in social sciences, civic matters, and world knowledge is low. Daily, constant, and overwhelming feeding of information to the public on work and consumerism guided by the industry and their advertisers and lobbyists desensitizes the public to information on serious and intellectual matters, foremost on the governance of a peaceful and healthy society. Infiltration of people with antisocial inclinations into public service becomes possible. Our foremost weakness is the poor quality of the middle school system (which is in fact the cause of college education that adds unnecessary time and expense to education). The lower is the general educational level of the people, the more they tend to believe than to reason. Yet, middle school should be where the social life and world knowledge are provided. Outside the formal education, we are responsible also "teaching" our youth a lifestyle of American exceptionalism, superiority complex, isolationism, exclusionism, aggression in competition, i.e. winning at all costs.  All of these attitudes are contrary to the needs of a community-minded democratic society because demeaning others for self-aggrandizement creates economic, racial, social, and cultural divides, hence unrest. A change in such a divided society, even for the better, would be through violence. Not to rise to the challenge of improving and building on the foundational principles of the society is tantamount either to the lack of required mental or moral capacity or to the refusal of partaking in the advancement of the common civilization. Therefore, a high quality social science education and a system of honest public information are very important for the successful practice of democracy.

Vulnerabilities of the democratic system present themselves when its built-in guarantees are insufficient to counter the exploitation of these vulnerabilities by a leader or some groups of people. Some of the public concern and debate over numerous Constitutional issues during the tenure of the present administration have their roots in earlier years. During the Clinton administration the opposition party started testing our democracy’s foibles. They took their opposition duty from the high road of serious debate on national interests to the low streets of personal attacks to mark scores for the party (1995-1998 loose-cannon Speaker Gingrich era). This strategy of GOP continued in crescendo and became their established practice. It was put in play again during the tenure of the next Democratic President, Obama (2008-2016).

Presidential dysfunction

The current President did not become President by use of force by any part of the public. He was duly elected; although it may not have been by the people’s will. It was not the will of the people but the nature of the system that brought him to the leadership. He brought with him from New York to Washington a wrecking ball from one of his construction sites and wrecked or attempted to wreck almost all of what has been done by his predecessors, thus, wasting the public’s time and treasures. He did the same with long established policies and traditions in foreign affairs. To top it all, he declared the majority of the people who do not support him unpatriotic and enemy of the people, even suggesting to the “patriots” to harass or attack the “enemies”. This is from a President who legally and publicly committed himself to “preserve, protect and defend the Constitution of the United States”, which is ordained “to form a perfect union, establish justice, insure domestic tranquility, …”.

Such performance by the President supported by his political party and by the people who constitute a large minority of citizens expectedly and rightly caused concern to the rest. Once again, a heated debate over the functioning of our democracy ensued. An impeachment was swept under the rug with some legal gymnastics by the Special Counsel and party politics because of a remarkably undemocratic attitude of the public that a Presidential impeachment would be a disgrace for the country (This notion is unintelligible in the presence of the principle that no one, including the President, is above the law, and that the continuation of the President’s misdeeds will be even more embarrassing and damaging for the country). Consequently, Presidential disrespect for law, responsibility, decency, and honesty continued with new energy.

The Challenge

If history repeats itself, we will be so busy in the coming years licking our wounds and be guided by our trait of forgiveness that the damage of the past four years will be put behind us quickly as another unpleasant experiment in democracy. We will even laugh about it and shrug it off. Not to take on the hard job of tackling the shortcomings of the system is cowardice, dereliction of a democratic and civic duty, and shedding a humanist responsibility. Once the thin veil protecting democracy is thus violated more and more unfit leaders will venture to abuse it.

Therefore, we should no longer wait to tackle this Gargantuan job. It is said that JFK remarked “The time to repair the roof is when the sun is shining”. Some obvious examples of needed repairs are as follows:

1.     National election process: Constitution stipulates the composition of Congress in its Article I, and Bill of Rights Articles XVII and XXIII. Congressional election procedure (other than eligibility to vote in other Articles) is organized in Art. I.4.1 of Constitution, “The times, places, and manner of holding elections for senators and representatives, shall be prescribed in each state by the legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing senators.” Accordingly, the original authority to determine the times, places, and manner of congressional elections is in state legislatures, but Congress may decide otherwise. This Constitutional text of “may” does not give an overriding prerogative to Congress to achieve equality in voting procedures, nor another solution to avoid State disenfranchisement of some voters by State manipulation of the time, place, and manner of voting.

Th Presidential election procedure is stipulated in Constitution Art. II.2, which is amended by Bill of Rights Article XII. The Amendment, which entered into force on 9/25/1804, six years after the ratification of the Constitution, is all about the Electoral College. Electors being “assigned” by State legislatures, instructions given to some of them may not align with the result of vote count, as it happened in the past more than once. De facto meaning of this proviso is that States’ will overrides people’s will. This provision makes the Presidential election in fact by States, not by the people. Yet, people are led to believe that they are voting for their President, a national President.

2.     Relation between Federal and States jurisdictions: Articles I.8 and IV.4 of the Constitution enumerate Federal powers in positive and mandatory terms as “The Congress shall have the power” or “The United States shall guarantee”. And, Article X of the Bill of Rights grants to States the exercise of powers not delegated to the US nor prohibited to States, thus empowering States in all other areas not mentioned in the Constitution. For example, Article I of the Bill of Rights enjoins the Congress not to make laws “respecting an establishment of religion … or abridging the freedom of speech, or of the press or the right … to assemble, and to petition the government for a redress of grievances.” This provision does not exclude States making laws in the areas mentioned in it. Hence, if theoretically a State were to enact abridgement of such rights Congress would have no Constitutional basis to intervene. Except maybe the provision of its Article IV.4, which reads “The United States shall guarantee to every State in this Union a republican form of government”, if the State applies for it, as the rest of the Article suggests. Therefore, legally speaking, while the Federal government is giving a guarantee for democracy, States are not under the same obligation. Is this why Art. I.4.1 empowers States with “The times, places, and manner of holding elections for senators and representatives, shall be prescribed in each state by the legislature thereof”? Is this why occasionally we hear from certain States about separating from the Union? Is this freedom given to States prompted the prime objective of the Constitution defined in its first words, “in order to form a more perfect union” and which we still seem to strive for? What is the point of guaranteeing democracy for all States if the Union is not guaranteed? Is not this enough reason for a reconsideration of the wording of Constitution Art. I.4.1 to the effect that while States may organize elections to the Senate, and Congress organizes the election for the House and the President of the nation in order to achieve a more perfect democracy?

3.     Separation of powers:

a)     Between the Legislature and the Executive: Constitution provides in its Art. I.3.4 that the Vice-president presides over the Senate and can break a tie in votes. The same Art. in Section 3.6 provides that the Senate has the standing in case of impeachment of the President. These provisions are some examples of where the separation principle is blurred by giving supremacy to either institution in different situations.

Then, the Senate seems to be given higher powers by Articles I.3.7, II.1.5, and II.4. Namely and respectively, the power to remove the President, the V-P, and other public officials from office, and whether or not to give its consent to the appointment of higher public officials and to the appointment of those at the lower level.

On the other hand, Article II.3 empowers the President to convene both or one house in the event of disagreement between the two Chambers, or to adjourn them. All these provisions confuse the principle of separation, or to say the least, they do not provide for solutions for probable cases of conflict these provisions may create.

Then there is the oddity of Art. XX.1 of the Bill of Rights. Although the new Congress becomes functional on January 3, the term of the President ends on January 20. This means the President works with the new Congress for 18 days, which under certain circumstances may create a dysfunctional administration. This, of course, is in addition to fixing the election day for the first Tuesday in November. Both of these provisions can potentially put the country in an uncertain and precarious situation for almost three months, as we are currently practicing. Such a long period of transition potentially gives the outgoing President an undue opportunity to upset the peace if he is mentally and morally so disposed. There is no stronger argument than that for scheduling the election day for the month of December.

b)     Between the Judiciary and the other two powers: Art. II.2.2 of the Constitution grants the President the authority to “appoint” the Supreme Court judges (may it be by advice and consent of the Senate) and other inferior “officers “as the Congress may by law vest in the President. The selection of words “appointment” and “officers” makes the judges subjects of the Executive Branch. This is an example of politicization of the judiciary.

Furthermore, although the tenure for life was implied (in the absence of a clearer provision) in the phrase “The judges, both of the Supreme Court and inferior courts, shall hold their offices during good behavior”, a very important statement of the independence of the judiciary is absent altogether both in the Constitution and the Bill of Rights. It would be more in line with democratic principles if federal judges were to be elected like the members of the other two branches of government, and the life-time tenure were to be replaced by a time limit. Lifetime appointment by political bodies locks-in and imposes on coming generations the ideological and religious agenda of the party in power, like in abortion and gun rights questions.

Constitution Art. II.2.1 empowers the President “to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.”. This is an egregious intervention of the Executive in the adjudicated decisions of judiciary.  The argument that the pardoning power is meant to show the graceful side of the Executive on the one hand, and the correction of justice in cases where it may have failed on the other does not hold water. The first point must be thrown out as being the remnant of an antiquated royal practice representing divine qualities. The second point is an obvious expression of executive power to override the judicial power, hence a breach of judicial independence, an abuse of power. This is the high point of our basic documents which records our naivete that someone deprived of mental and moral capacity would never be President.

December 22, 2020