One of the gems of the American Constitution is the concept of the formal separation and balancing of powers between three branches of government:
· The Executive
· The Legislative
· The Judiciary
This was a clear departure from traditional governing structures and in particular the European systems of the Enlightment period such as the parliamentary system of the United Kingdom. There, two legislative chambers, one of which was powerful but hereditary and the other more populist and elected, plus an unelected King, constituted the structure governing society. These authorities looked after all issues of state in a very different way from what the American Constitution intended. Most of Europe at the time of the writing of the American Constitution had distributions of power similar to that of the UK, with some Kings being even more powerful than in the UK. The French revolution put an end to much of that but did not provide a stable society. Troubles and emperors survived for decades in France and elsewhere after democracies germinated.
The American Constitution is the source of the innovative and well-intended ideas democracies have been implementing, and is the one I want to consider. As time went on the American idea of coequal powers sharing the duties of government has evolved and became more common. But after more than two centuries it has become obvious that, although the idea is fine, the methods of populating the three branches are not practiced as designed, and the good intentions of the writers of the American Constitution have been derailed. Politics, unhindered by adherence to the principles of the Constitution or even of good sense, have become dominant. Considerations which were intended to be the glue holding society together have been shunted aside.
Let me take the three branches of government in turn: Executive, Legislative and Judicial.
This office is modeled on ancient kings and emperors and their courts; it seems that there is a lasting consensus that a society must have an identifiable leader. In democracies it involves one principal figure, the chief executive (in the USA, the President), whose authority to act on his/her own is to be constrained by the other two branches. The president is supported by a group of officials (the Cabinet) who act as advisors to the president and as directors of the various departments within the executive bureaucracy (the Administration). Despite the constraints possible due to the presence of the other two branches, the president has a lot of leeway to act on his/her own by mandating rules and regulations, as long as they do not contravene the Constitution and are not seen to encroach on the prerogative of the legislature or the judiciary. In a modern democracy that leaves a clever president and his administration a lot of leeway.
The president was initially entitled to hold office as long as he/she desired and the country wanted to keep him/her in office. The elections were to be indirect, not populist; they were funneled through a body called the Electoral College. The Electoral College was created to select a high-quality candidate to serve as President for a term of four years: an accomplished and highly-qualified individual from the population of the entire country, presumably regardless of political affiliation. The Electoral College was intended to consist of experienced and well-educated residents chosen from each state.
Each four years, a newly-selected College could choose a new presidential candidate, or could elect the same individual with no limit to the number of terms one candidate could serve. The original intention was that there should be no national campaign for president. A saying of the time was “The office should seek the man, the man should not seek the office.” This system was bowdlerized over the years by the increasing influence of political parties to the process. Electors are now selected in each state, usually by nomination by their candidate’s state party committee or by a vote at the state’s party convention, and is largely bound to vote in the College according to the popular vote taken in their state for their instruction. In some cases, the Elector’s vote is assumed but not committed. The idea of selecting the best person from the populace without political shenanigans is dead. The Electoral College has become in effect a populist means of selecting a president by a vaguely arm’s-length state-by-state national election.
In some democratic countries, when corruption has become the norm, presidents for life have been appointed, reverting to a style of government practiced by ancient kings and modern dictators who were surrounded by sycophants, but this time maintaining the trappings of a (rubber-stamp) democracy. Democracy is a powerful concept and even rogue regimes pretend to be democratic. The result of the populist trends in some countries that call themselves democracies has been that individuals with minor talents and even zero executive experience can be elected president, even for life, if an armed faction or a popular political party finds them to be attractive.
The chief executive of any government bureaucracy is an indispensable part of a government and his/her powers must be broad but well-defined, and constrained by the other two branches, as set out in that country’s Constitution. The president must be an accomplished individual but must not dominate the other two branches and become a dictator. I will leave the mechanisms of this interaction for a future blog.
In a democracy, the legislature can be mono- or bi-cameral. There are merits in both systems. But whatever the model, it must be seen to represent the citizens. In a mono-cameral system the citizens vote to elect all the representatives, usually in a one-man-one-vote election (a voting system with problems which I discuss in my book “Democracies,” available on Amazon in print or as an e-book.) One-man-one vote assumes incorrectly that all citizens have an equal grasp of matters of state.
Some of the problems of mono-cameral assemblies can be solved by instituting a bi-cameral system, with an upper chamber where a smaller and more-accomplished group of individuals is meant to provide wise fiscal and diplomatic oversight to balance a more-populist lower chamber, whose members are often largely concerned with their re-election in the next cycle.
The bi-cameral idea is sound but has been bastardized beyond recognition in the USA and most other democratic jurisdictions. The senior body in the UK parliamentary system, the House of Lords, was originally a hereditary elite whose education, worldliness and purpose were meant to serve as a control of the potentially unbridled expenditures and whims of the monarch as well as populist policies driven by members of the lower house and their desire to be re-elected. In the USA, the Founding Fathers had the same goal. James Madison described the Senate as “a necessary fence” which would protect “the people against their rulers” and from “the transient impressions into which they themselves might be led.”
Two senators were to be appointed by the legislature of each state. This was intended to give each state equal status and a chance to reach into their population to find the wisest and most talented citizens to represent the interests of their state in a national chamber (the US Senate), which was intended to control populist tendencies of the lower house (the House of Representatives). However, the US Senate too has evolved over the years, and become popularly elected and partisan, although it still reserves for itself some special rights. For example, the US Constitution grants unique powers to the Senate, allowing it to serve as the more deliberative legislative body and as a check on the executive and judicial branches by providing advice and consent on nominations and treaties. Today, the Senators are nominated for office by their state parties, are elected by popular vote, and are driven by the desire to be re-elected, as are all members of both chambers (the Congress).
Democracies in some bi-cameral systems have also evolved to make their upper house wholly elected. Some other countries have upper chambers that are still fully appointed, as in Canada, although since 2016 in Canada an independent committee, instead of the government of the day, has been appointed to select new Senators to fill vacancies on the basis of prescribed qualifications. In the USA, like the lower house, the Senate is elected on the basis of political partisanship. Moreover, there is no requirement that the candidates to the upper house have any merit or qualifications beyond those for the lower house, with the result that in America it has become nothing but a more prestigious house of vote-driven incumbents. How the lack of a wiser and more realistic body can be overcome in the face of rampant populism in both houses is not clear. The only thing we can say is that politics, not wisdom, dominate both houses in the current American legislatures.
However, the most important and most fraught issue is the selection and operation of the Judicial Branch. I shall confine my discussion here to the duties and selection process for the US Supreme Court, although much of the discussion also applies to all appointed US judges.
The Judicial Branch
Arguably the Supreme Court of the USA is the most important governmental body. Its purpose is to decide what is just and right, in the light of the constitutional rights of the other two branches, of the states, as well as of all citizens, and to do this in keeping with the founding principles as set out in the Constitution. Most importantly, it must do this with obvious equality of judgement, and fairly regardless of status or influence. The Supreme Court was never intended to support partisan ends.
As such, the Supreme Court is in charge of the soul of a society. It must be impartial, apolitical and ready to defend the Constitution from the passions of the day. How well has the Supreme Court of the United States of America fulfilled this role? You decide. Here I will only mention some of its failings which have hurt society. All that the court has done right is no more than its duty. Where it has failed, all citizens pay the price and the system is put in jeopardy.
To begin, the court is charged with defending the Constitution, not with “interpreting” it, as it sometimes does, according to current mores. Increasingly however, the Supreme Court has been allowed to interpret the Constitution well beyond its remit when political forces in the legislative branch have been unable to pass their ideological agenda. To achieve this end, political parties in the Senate have selected or rejected the president’s choice of a nominee to the Supreme Court by applying partisan standards, not just those required to assess impartiality and legal competence for appointment to the court. This allows politicians to “stack” the Court to their political advantage with activist partisan justices.
The President proposes a candidate for the Supreme Court and the appointment must be vetted by the Judiciary Committee of the Senate and then confirmed by the Senate as a whole. This was intended to be a means of power-sharing between the executive and legislative branches, but presumably only to make sure that the candidate will be qualified as a justice, and not simply be a partisan appointment.
With the rise of partisanship both in the Senate and in the White House, new appointments have increasingly been successful in seeding the court with biased political appointees who are likely to pass judgements which may alter the original intent of the Constitution for political ends. Such an alteration should only be handled by duly-elected legislators and ratified by at least 75 percent of the states. Today it is clear that the political bent of a justice is a critical fact to be considered, both by Presidents and by Senators. And it is obvious that some Supreme Court judges have confirmed their political stance in their opinions.
What is the Conclusion?
The problem is that wisdom has been given short shrift in all three branches of government, and most regrettably in the Supreme Court. Politics rule the roost, and the passions of the most-vociferous or persuasive segments of the citizenry are implemented, regardless of the written Constitution, of natural law, or of good sense. The Supreme Court is being manipulated to the advantage of the political party in power at the time of appointment. It seems that contemporary democracy gives license to the citizens to bring on disaster if they so wish.
In my book on Democracies I dealt with matters concerning the selection of the executive and legislative branches of the government. Let me enlarge on this by considering the Judiciary.
First of all, how do we get politics out of the system? We will always have politics, but we can control its influence in matters that are within the exclusive jurisdiction the Supreme Court. To do this we must select the justices in a different way than the blatantly partisan procedures of today. Moreover, they should not be appointed for life or be protected from impeachment. An eleven-year term would suffice for each justice and removal for moral turpitude, physical or mental disability, or breach of confidence should be not only possible but a constant reminder of what is expected of members of this critical body.
Breach of confidence is a complex matter and it should be determined based on the opinions expressed by a justice which must not be contrary to an unembroidered interpretation of the Constitution. He/she should not try to change the original intent of the Constitution — that is what legislatures and amendments are for. If the justices believe that the Constitution needs amending, the court or even an individual justice can so advise the legislatures, who can then consider the issue.
The eleven-year terms would be staggered, with one justice retiring every year. Uncompleted terms would be filled only until the term of the missing justice is completed. There should be no second terms allowed. Retired justices will have a podium for their opinions in public but should confine themselves to debates within their professional bodies, not “on the stump” during elections or by lobbying.
All this is meant to improve the system, but it will fail if the country does not put a premium on probity and wisdom in all its governing bodies. The citizens will get what they deserve. If they merit wisdom they will get it — if they prefer unbridled politics, they are getting it. Current democratic systems are not the final word in the operations of increasingly well-informed societies. The dangers are that citizens are often not well or adequately informed, are willfully misled or propagandized by ideologues, and do not pay enough attention to the freedoms and opportunities offered by democracy.
There is another critical aspect of a viable democracy: the presence of readily-available free and unbiased information. The delivery of information by the media to the public is presently under attack by all sides: partisanship is the reason. The vast majority if not all of today’s media present their information in a form distorted by personal and partisan opinion. There is in essence no public or private source of unbiased information free of politically-based opinion. In a true democracy, the media will have to clearly distinguish between editorial opinions, which are constrained only by what the public will tolerate, and information services which are essential to a viable democracy. The latter should be under the supervision of some form of respected watchdog agency which would be charged with identifying opinionated information not identified as such by the publication, and with confirming the verification of all facts if there are objections raised after they are disseminated. Penalties for breach of the expected veracity of news reports and the inclusion of opinions and propaganda in information-reporting should include significant fines and possibly suspension of the guilty parties.
A large part of the problems destroying current democracies is not only the politicization of all public matters but also the misinformation of the citizenry by politically hyperactive media. “Talking heads” have anointed themselves with the right to “teach” (not simply inform) the citizenry, even if their “truth” suffers due to inadequate vetting of sources, or by willful distortion, or by selective reporting of facts. The resultant buzz of varying opinions, distorted or selected facts, even outright lies regarding what should be no more than hard facts supported by careful examination, is disorienting. Society deserves the truth, the whole truth, and nothing but the truth for their consideration of how the country should be governed.