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Con Con 2001?
US Constitution is Killing Democracy
Americans have been brought up to revere the men who set the nation free and then left them a Constitution that has evolved into an almost hallowed document. Politicians and public alike could, however, be forgiven for scaling the face of Mount Rushmore today and then forcibly removing the likeness of George Washington. What can be described only as an absolute charade of an election will have given hope to dictatorships everywhere. Democracy has been rendered little more than inept anarchy with exit poll projections. The leadership of the most powerful nation on the earth has come down to a dispute over ballots in Florida that some lawyer or another is almost bound to take to court; while it seems possible that a man might win more votes than his opponent but not reach the Oval Office.
This fiasco could have happened at any time during the past 200 years including elections held in the midst of the American Civil War, the First and Second World Wars, or at the Cold Wars most dangerous moments. In truth, Americans have just been extremely lucky that their political system has not blown up when it mattered most, but instead at a point when it can provide more material for the late-night comedians who appear to play such a pivotal part in their politics. Both George W. Bush and Al Gore are, in this sense, to be pitied as victims of the process.
The American Constitution is the oldest one in the world (with the technical exception of the Massachusetts state constitution of 1780 which predates its ratification by nine years) and easily the shortest. The procedure for amendment is so cumbersome that only 27 have been accepted in more than 200 years (two of which introduced Prohibition and then repealed it). It is the triumph of aristocracy over democracy, the uncertain over the specific and the past over the future.
The procedures for selecting a President set down more than 200 years ago to suit a set of small states, populated by yeoman Puritans, hugging the eastern seaboard of a continent, remain virtually unaltered as the method by which the single military, economic, political and cultural superpower on the planet reaches decisions of fundamental importance. This will not do, change must come and the totally surreal developments that have now been witnessed across the world this week should be the catalyst.
It is not as if arrangements for presidential elections are the only defects in an otherwise magnificent treatise. This Constitution is littered with pitfalls for those who must live with it in the modern era. Two odd examples neatly illustrate a wider pattern. The Constitution provides that all federal officials can be impeached for high crimes and misdemeanours. The Senate conducts a trial and, in every case except that of a sitting President, the normal presiding officer of this chamber namely the Vice-President is at liberty to oversee proceedings. Strictly speaking, therefore, the Vice-President could demand the right to organise his own impeachment. Nor is this the stuff of fantasy politics. In 1973 Vice-President Spiro Agnew was confronted with accurate accusations that he had taken bribes while in his previous post as Governor of Maryland. Fortunately, the evidence was so compelling that he sought to plea-bargain his way out and not take part in a slapstick session in the Senate.
The Constitution also allows for a farce at several thousand feet if the occasion demands it. As the text makes the President the Commander-in-Chief of the Army and Navy of the United States, one could argue forcefully that the Air Force has no constitutional standing. If the Serbs had had the slightest interest in US law during the Kosovo campaign they could have headed straight towards the Supreme Court and caused at least a modicum of trouble.
The prospect that a President could conceivably arrive in Washington DC despite receiving fewer votes than his opponents is more than a curiosity, it is a scandal. The Electoral College system caused enough trouble during the 19th century 1824, 1876 and 1888 when it unfortunately misfired and left victorious candidates and their supporters fuming. But in those days the American Government had hardly any role at home, never mind global responsibilities. The world has moved on even if the sacred Constitution has not done so. After near-misses in 1960, 1968, and 1976 that the politicians chose to ignore, the nightmare scenario suddenly emerged this time.
Political power is, rightly, now bound up with the basic notion of legitimacy. A parliamentary system that has several political parties will, under first-past-the-post or proportional representation, occasionally and inevitably conjure up results that observers might find uncomfortable. A straight race for one position such as the President of the United States should not be a matter for rocket scientists. It should involve the basic principle that whoever secures the largest number of votes has won and has some sort of mandate to assume office. Yet every time Americans have a close contest for the Oval Office they have to rely on hope and prayer that their ancient and arcane arrangements for the poll will not lead them into quicksand.
For this is what would come to any doomed President who sought to exercise influence despite failing to carry even a plurality of citizens. What moral authority would a President have to veto laws passed by Congress, no matter how ill-advised they might be, if the congressional leadership could retort, fairly, that he was a constitutional squatter in the White House. What moral authority could such a President command to send his troops to fight on foreign fields, especially in controversial conflicts? What moral authority, in the most extreme example of them all, would a man have to hold his finger over the nuclear trigger when he owed his office not to a majority but the by-product of a bankrupt electoral college? And moral authority matters for the American presidency more than other portfolios. The architects of the US Constitution created a hybrid post part elected King and part elected Prime Minister. A successful politician is one who can blend these two functions in a fashion that will carry the confidence of the American people. The formal powers of the President are rather few and limited; they only acquire elasticity when lubricated by moral authority.
If nothing else of worth emerges from this multibillion-dollar pantomime of a poll, then it should be a consensus that dramatic action is needed. The Electoral College is the swollen appendix of the American body politic. It needs to be removed before it can do more harm to the patient. It will always present an unacceptable risk to the functioning of democracy in America.
There are two methods to replace the constitutional menace one straightforward and the other more complex. The easy route would be to amend the Constitution so that whichever candidate secured the most votes became President, no ifs, no buts, no recounts in obscure districts. The disadvantage of such a blunt approach is that it would eliminate the states from the selection of the US President. Most Americans believe that their states are still the basic building blocks of their nation.
To cut them out might be needlessly controversial, even very unpopular. One solution would be for the Electoral College to be kept as it is now, but for a large number of bonus or top-up delegates to be awarded to the contender who obtained the most votes right across America. This would kill off all practical possibility of a loser being in a position to take possession of the Oval Office.
The wisest of the men who shaped America in the 1780s realised that they should not attempt to establish institutional arrangements in stone and place handcuffs on those who would follow them. Thomas Jefferson, like Mr Washington, immortalised on Mount Rushmore, once mused that a Constitution should be reconsidered every 25 years or so, perhaps in its entirety. His colleagues and rivals, jealous of Mr Jeffersons intellect and verbosity, packed him off to France to serve as Ambassador while they drew up the Constitution. The shambles of an election, verging on a constitutional crisis, that has been witnessed over the past 48 hours might have been averted if he had spent 1787 in Philadelphia, not Paris.