What’s going on in America? Edward Luce explains. Nov13


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What’s going on in America? Edward Luce explains.

What’s wrong with the American Constitution?

A recent Edward Luce article in the Financial Times Weekend Magazine (October 17/18 2020) explains a lot about what’s going on in America. Like all good stories, it’s about people. He begins with Rosa Brooks, a law professor, who asks her students what they think of the American Constitution which is the user’s manual for America and it’s 233 years old. Her students are proud of it. She asks them if they’d just as quickly use 233 year old medical text books to study medicine today or 233 year old maps to navigate the seas. Hmm.

The reality of the American Constitution is that it was a messy, more or less thrown-together document that tried to keep everybody happy in a very different age – the age of slavery. It calls for the separation of powers between the legislature (Congress,) the executive (the President,) and the judiciary (the Supreme Court.) These three power centres are supposed to be independent of each other. They’re each supposed to watch the other two carefully to make sure there’s no funny business. The point was to avoid ever returning to the way things had been in America before the American War of Independence – rule by a despotic king from afar (King George III of England.)

Conservatives and liberals at war

All that sounds pretty reasonable maybe but one doesn’t have to be a legal expert to see that things aren’t working out so well at present. Mostly the problem is the country is split down the middle into two competing camps: conservatism and liberalism, often known as the right and the left. On the right you have those who want to return to the days of the Constitution’s birth; they’re known as “originalists.” Think of people who take the Bible literally: do you believe that Adam and Eve actually existed, that whole bit about the snake and apple? Now fair enough if you do but it’s probably safe to assume that most people don’t take it literally; they likely view it as a parable, a demonstrative story to help us think about sin. Well, originalists take the Constitution literally which means that they believe that it should still be the lodestar, the guide, the rule book, never mind that there were only 4 million Americans when it was written or that women, Native Americans and blacks didn’t feature in the politics of the day. On the left tend to be those who believe that there are historical injustices (think of Black Lives Matter for instance) that need redressing and that the Constitution, while a great achievement of its day, is kind of out-of-date by now. But this of course is a simplification: there are far more groups and ideas on either side which complicates things even more.

With Trump, the system of three power sources acting as watchdogs for each other has broken down. Trump doesn’t show any respect for it; neither therefore do his followers and there are 70 million of those. When you’ve got 70 million fans of course you’re going to keep making that pop music!

Who’s the boss of the Constitution?

The guardians of the Constitution, the people who decide what the Constitution actually means in real life are those on the Supreme Court. Clearly, Trump wants his own people in there – so do the Democrats. The problem is that the job of being a Supreme Court Justice is for life and it’s not easy to get rid of someone whose loyalties are to the other side. When a liberal Justice named Ruth Bader Ginsburg died recently Trump took the opportunity to replace her with Amy Coney Barrett who’s a member of People of Praise who believe in traditional gender roles: women are subordinate to men. With Barrett now in place the Supreme Court is mostly conservative: it’s 6-3. That means that conservatives are twice as influential when interpreting the Constitution as liberals. Now liberals are afraid that abortion rights (Roe v Wade, 1973) and gay marriage Obergefell v Hodges, 2015) could be rolled back. The Court might also undo the last remaining restrictions on gun ownership (the Constitution intended only for official militias to have gun ownership rights.) As the top legal decison-maker in the land, the Supreme Court gets to decide how the Constitution will affect people’s day-to-day lives and if it’s led by conservatives that might mean liberals will lose faith in the Constitution: maybe that’s not such a bad thing: maybe it’s time for a change.

Republics versus democracies

Because America was originally intended as a Republic, not a democracy, change is very slow in coming. The last important change made to the Constitution was in 1965 which allowed for an unfit president to be removed from office. The liberals want another change: get rid of the electoral college. This is a system that was originally designed to prevent rabbles from voting in crackpots. It works like this: every state has a population (for instance, California is the most populous state with about 8o million people) and every eligible voter can vote. But when all those votes are counted that’s not the end: now the “electors” who are actual people look at the votes and they can decide (this is absolutely true – look it up if you don’t believe me) who wins in that State. Each elector has one vote and can cast their vote in whichever way they want; they can even vote against what the majority of their state’s citizens wished for. There is therefore both the “popular vote” which means “How many people voted for Donald Trump altogether? How many voted for Biden?” and the Electoral College vote which means “What are the Electors going to do? Will they allow the people to get their way or will they vote against the people?” Electors have never voted against the people for fear of an uprising but that’s not always enough to prevent problems. What happens, say, if a candidate, say Hillary Clinton in 2016, gets more votes (3 million more) than Trump but still loses the Electoral College vote? What happens is that Trump wins, that’s what happens.

A Republic is a sovereign nation with its own system of government not controlled by a king. A king, traditionally, is appointed by God and inherits the throne from his father (obviously you can have queens too.) The people are citizens of that country and have rights. However, a democracy is different: this is where all the people (those who can vote) have a say every so often (in America it’s very four years) in who’s going to be their President or prime minister. The clear difference is the pace of change: a Republic is based on founding documents that are designed to be difficult to alter; a democracy emphasises the will of the people and encourages (or is supposed to) them to be active participants in elections and civic life.

Now America is both a Republic and a democracy but notice how “Republic” isn’t used very much in conversation and “democracy” is. That’s because the notion of a Republic is based on documents, on systems, on ideology to a greater degree than is a democracy: democracies are simple: add up the votes and found out who won. Republics are far more complicated: it’s about history, events, ideas, conflicting traditions, hopes and fears, national pride, the specifics in other words.

What’s going to happen?

There are some, including Sanford Levinson of the University of Texas Law School, who argue that unless the Constitution is modernised and made fit-for-purpose one of three things is going to happen: America will break up into two countries, one mostly conservative, the other mostly liberal; there’ll be another civil war; nothing much will change and America’s influence and power in the world will dwindle. This third option, Levinson thinks, is most likely: the American Empire will die, just like the Roman one did and the British one and many others.

The Founding Fathers couldn’t have foreseen, Luce tells us, the problems we face now such as climate change, producing vaccines in time to save lives, competition from China, the challenges of the Internet and so on. Therefore, the document they wrote must be updated. But even now that Biden has clearly won the election, his success as a president is going to be challenged by inter alia (Latin for “amongst other things”) a conservative Supreme Court that effectively owns the Constitution. Also, the changes liberals call for are not easy to achieve because of the American Constitution which effectively says, “It’s perfect the way it is. We’ve nailed it!” It’s a very conservative document, in other words; it’s not surprising that conservatives love it: it exalts the past – but for many Americans the past was pretty ugly; for them, the future is brighter. Conservatives tend to fear the future unless they can control it though liberals may share this feeling to some extent. The difference is that history has shown that liberalism – the notion that we should move with the times and be willing to change the way we do things – is an engine for change and change is inevitable. Look at Trump’s popularity in this way: the most fearful are the conservatives because there’s been so much change and with every new change America shifts a little further away from its Constitution: Trump came along and put a halt to so much of that change. When you’re scared and someone tells you you don’t have to be you don’t tend to care too much what else that person says.

It’s worth remembering that much of what happens in politics isn’t written down in law, it’s based on “an antiquated honour system that says the incumbent (the outgoing president) should respect the rules of the game.” But Trump’s appeal is that he offers so much to those scared of Constitutional change that they don’t care too much if he’s dishonourable. Right now many Republicans are going along with his refusal to concede in the election to see where things end up.

How can I benefit from going along with something I know is wrong? is the question that, if we find ourselves asking it, should alert us to the possibility that we are dishonourable.

Source: Edward Luce, “Can American Stay Together?” Financial Times Weekend Magazine, 17-18 October, 2020, pp.14 – 21