The Sequel

on the Challenges to American Democracy

 

After having pondered over the surprise results of 2016 presidential election, thereafter over the impudent and irresponsible presidential performance, subsequently -prior to the next election- over the pitfalls of democracy, and finally -after the chaotic ending of that dismal presidency- over the urgency of saving democracy before the next election, here are discussed some glaring anachronisms of the foundational documents of democracy that served a legal opening for one of the most shameful period to go down the annals of political history.

Democratic principles referred to here are those given life to by the people and for the people in 1787 and practiced for over two hundred and thirty years. Here is implied the fact that, contrary to the textualism of the conservatives, the Constitution is not a pile of words frozen for eternity, it is drawn as a general guidance for the interest of the people who live today, and the nation expected to live for eternity. Constitutional provisions are found either applicable to contemporary circumstances or may be amended as foreseen in its Article V. The application of this Article is just as an important duty as the observance of any other Article of the Constitution. Avoiding their interpretation to meet the needs of the society or their amendment when necessary is unacceptable. Thomas Jefferson expressed this need ingeniously, "a constitutional convention should be convened every twenty years, so each new generation should be empowered to reconsider its constitutional norms."

In general terms, the Constitution stipulates the organization of the three branches of government along with their authorities and duties. The principle of three branches in the republican regime is an unchangeable principle. Authorities and duties of each branch must be subject to change as the needs of the society they serve change over time with the increase in population and with economic and social changes, among others. Amendments in the Bill of Rights regarding the election process demonstrate that. Individuals’ rights mentioned in the Bill of Rights are the basic freedoms based on the experience acquired up to that point in time. They are subject to change as the society and the corresponding governmental experience change with the human nature and science evolve. Amendments in Articles XIII (on the abolition of slavery), XIV, XV and XIX (on non-discrimination), XVIII and XXI (on the prohibition of liquors) of Bill of Rights demonstrate that.

The most obvious anachronisms are as follow:

1.     The absence of equal standing of the three branches of power:

While both basic documents stipulate in detail the way the Congress (Legislative power) and the President (Executive power) are elected by the people from among the people the voters find qualified. Judges are “nominated” and “appointed” by the President (be it “by and advice of the Senate” presumably for avoiding the appointment of unqualified people because the framers could not agree on a list of necessary qualifications. Article II.2.2). Thus, while a person considered qualified can be elected to Congress or to Presidency (the two branches) even if he/she is an independent without any party affiliation, the appointment of judges (the third branch) is to be made according to their convictions appealing to either progressives or conservatives (depending on which one controls the Senate) in addition to their accepted qualifications. Furthermore, the fact that judges are “appointed” by the head of the Executive Branch would suggest that judges would be considered civil servants, members of the Executive Branch. Especially since the term “independence of judges” was not used anywhere in the Constitution. It is argued, of course, that the Framers covered that point by stating that judges “shall hold their offices during good behavior” (read for life). This foggy statement used in place of the term life tenure with the possibility of impeachment should not be enough, particularly to a textualist, to constitute an incontrovertible legal basis for the independence of judges, specifically from the Executive Branch.

If judges are to constitute the third branch of government independent from the other two, they ought to be subject to election procedure like the other two are.

2.     The blur in the separation of authority between the Federal and State Governments as regards the organization of elections:

a)     Article II.2 of the Constitution amended by Article XII of the Bill of Rights establishes the system of Electoral College. It was abundantly discussed on the occasion of many recent elections that the “assignment” of Electors by State legislators makes it possible for States to override the will of the people for the election of the President. This is tantamount to making the Presidential election by the States, not by the people, the President of the States (or of the Union) instead of the President of the People (or of the Nation). If deference to the independence of States is to continue in the 21^st century’s increasingly integrating society thanks to technological advances, instead of “more perfect union”, then we should not continue misleading the people by calling them to vote for the People’s or the Nation’s President but calling them, honestly, to vote for their State’s President, just as we do for electing State senators. In the latter case it is justifiable to organize elections and litigate them under State laws.

b)     If, however, we are sincere that democracy means governance by the people and for the people of the same one Nation, of the “United States of America”, we must have the sincerity and honesty of repealing the provisions of both Basic Documents as they pertain to the Electoral College. We must replace them to reflect the distinctions between the federal and state sovereignties. While Senatorial elections would be subject to State laws, organizing and litigating the Presidential election would be subject to Federal laws. This distinction may be the answer also to the Republicans’ request that Federal authority should not have a role in the election laws.

c)     As to elections for the House of Representatives, they are elected to represent the people, unlike the Senators. Although they are elected from Congressional Districts, which are established only for the purpose of the House to achieve an even representation of the entirety of the population, they represent the people as a member of the whole. Therefore, their election should be also organized and litigated only by federal laws. Congressional Districts could be drawn locally by States, preferably by a commission representing equally all political parties, civil society organizations attending as observers. In the event of a challenge, the deciding authority would be the House of Representatives, preferably by a commission representing equally all political parties. This process may be the answer also to the age-old gerrymandering dilemma.

Another lesson learned from the 2020 election, although not within the purview of the Constitution, is the absence of legislation to ensure “transparency of government”, a tenet of democracy. While there is abundant transparency on government operations (certainly more than in any other democracy), transparency does not mean only availability of information. Transparency would be meaningless if the information given were untrue or allowed to be falsified. In other words, the truthfulness of information must be secured by law, as well as the protection of its truth. Intentionally feeding false information to the public or the falsification of true information given must be considered as interference in election, obstruction of free exercise of voting right, an attempt to undermine the constitutional guarantee given in Article IV.4 for the “republican form of government”. More generally, misleading people with untrue information is tantamount to mental abduction, i.e. luring by deception. Do you remember 1978 Jim Jones Peoples Temple mass murder in Guyana? And several other like incidents that followed it. When brainwashing activities occur in other countries, in the form of Stalin’s Gulags or today’s Xingjiang camps in China, we criticize those countries. Domestic actions having the same effect must be considered criminal offences. Appropriate legislation is particularly important in a society where the kind of general education produces a large minority of egocentric and exceptionalist people (about 30 %, like Patriots, Evangelicals, Oath Keepers, MAGAs, or Yale, Harvard, Princeton graduates in high positions), a matter discussed in an earlier post in this Blog. This latter point, of course, is not a constitutional or any legal matter, but a matter of social, educational, rather cultural matter that we may be too late to redress.

The cultural issue must be addressed nationally and as urgently as the Constitutional issues should be. Because the cultural divide in the country was allowed to grow in the last decades to the point of near equilibrium that could easily tilt the political landscape, hence the social values and the unity of the country dramatically. The numbers within a certain white and religious denomination group that considers itself the owner of this land has diminished close to half the population, while the racially or religiously different immigrant groups approach that mid-mark. The claimers of the land see the others as invaders at worst or aliens at best. They are fed with supremacist and exceptionalist complex, thus have a lot to lose and are inclined to assert themselves by force. Everything foreign is bad, domestic is better at best harmless at worst, even if it is propagation of misinformation or terrorism. They seem to overlook the fact that they are not natural land owners either, that they once benefitted from "Give me your tired, your poor, your huddled masses yearning to breathe free…”. They take this land for granted. While the new-comers, the so-called aliens, are more appreciative of this land because they do not claim natural ownership of it, instead more importantly as the land of their conscientious choice. The claimers of the natural owners of the land take its political system for granted not knowing and experiencing how it could be otherwise. The so-called aliens know better: they all a have good reason for the painful choice they made to restart their life. 

February 20, 2021