On the Need for Post Electoral Structural Repairs

Response to articles on the latest dysfunctional presidential electoral results (2016), e.g., http://www.nbcnews.com/storyline/2016-election-day/electoral-college-lesson-more-voters-chose-hillary-clinton-trump-will-n681701.

I am about as far from a Clinton supporter as I can be, nor am I a Trump supporter. I am a supporter of the systemic changes required to make the United States a multi-party democracy and they are very fundamental. Elimination of the Electoral College and of the Senate along with reform of the system for constitutional control are probably the most important.

The accelerating proclivity for someone who did not attain a plurality (let alone majority) of the popular vote as president is inherent in the Electoral College where the votes of residents in small states count much more than those of residents in large states giving candidates backed by rural voters a clear advantage over voters in urban areas. This undemocratic anachronism is rejected almost everywhere in the world where, instead, two round electoral systems accomplish two major democratic goals: First, they result in the election of a candidate approved by a majority (more than 50% of the voters); and second but just as important, they eliminate, at least in the first round, the perceived necessity to vote against rather than for a candidate (the lesser evil syndrome). That permits focus on many more candidates during the initial round and not just on two choices winnowed by media elites, and then a clear choice among the two with the highest first round results, assuming no one attained an initial majority.

The Senate, originally justified as a forum where the views of state governments would be taken into account was an essential concept for a federal state. The 17th amendment so fundamentally changed that that it made the Senate almost irrelevant. Today, its primary function is to provide the minority with a check on Congressional action, an inherently obstructionist body based on its internal (not constitutional) de facto super majority (60%) voting requirements. That, in effect, translates into a legislative and appointive veto as long as the minority can muster 41% of the vote. We should either accept the fact that such obstructive role is legitimate or eliminate the Senate.

The Constitution’s most glaring deficiency has always been that it ignored the function of judicial review, an important cause of the Civil War. Our current system of constitutional control was crafted in bootstrap fashion by John Marshall based on illogical arguments which if carried to their reasonable conclusion would provide review responsibility to every federal office holder (including all members of the armed forces) who take an oath to defend and uphold the constitution. In effect, the success of Marshall’s argument has created a permanent de facto constitutional convention where five persons, selected in a non-democratic manner, have the ability to change the meaning of the Constitution at will. That, to me, seems too important a role for such a tiny, elitist body. It ought to be at least formalized in the Constitution and perhaps changed by providing for a constitutional review tribunal which, in our federal system, might be comprised, for example, of the members of the Supreme Court supplemented by the chief justices of the state supreme courts, acting either through combined majority or in two chambers, requiring majorities in each.

The Founding Fathers considered their constitution an experiment not the calcification of dogma. We‘ve let them down and suffer the consequences, such as our incoherent system for electing our most important governmental leader.
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© Guillermo Calvo Mahé; Manizales, 2016; all rights reserved