“Another stolen election!!!!! The Russians did it!!! Hillary should be wearing the crown!!! Trump is a racist, misogynic white supremacist!!! The GOP cages babies ripped from their mothers!!!!” “Decriminalize crime!!!!”
Hysteria, hyperbole and hypocrisy, the reigning pillars of modern politics although probably primordial in nature, the “chicanic” (a neologism based on chicanery) seeds from which our political institutions evolved. What is horrible and unacceptable if others do it is just fine when done by our heroes. Fake issues obfuscate real problems in desperate need of solutions, but if they’re solved, there go the issues.
Today, in the midst of a continuing series of soft putsches hoping to become coups (and thus undoing the results of the 2016 presidential election by impeaching or forcing the resignation of the currently sitting president), more serious issues have come to the fore, albeit in a somewhat frivolous fashion. Centurial demands for the elimination of the Electoral College and, in light of an evolving tradition of mass shootings, for the elimination of the Second Amendment (sacred to many but anathema to others), have become overwhelming (at least on the coasts). Fanning embers into flames and flames into conflagrations, the purported “mainstream” media is desperate to reinstall the power of the neoliberal-neoconservative confluence it serves and having become practically monolithic, such media controls the 24/7 diatribe to which we are continuously exposed. Of course, the fact that the “mainstream” media has abandoned most journalistic principles and eschewed the quest for accuracy does not mean it is always wrong. It is, however, almost always shortsighted, especially given the extremely brief duration of modern news cycles. Immediate reaction is essential, consequences, something to be dealt with later. After all, contrary to beliefs in the physical sciences, the past is malleable and mistakes can easily be written out of what passes for history. Only narrative counts, as Caitlyn Johnstone is so fond of pointing out.
Notwithstanding the foregoing (as if it were withstandable at all given the racket), meaningful discussion of constitutional reform is perhaps a century overdue. But it is not only the Second Amendment and the Electoral College that “may” have become anachronist, rather, even more fundamental constitutional issues need reconsideration. After all, our current constitution is a conceptual crystallization of then avant garde 17th and 18th century political philosophies put to the test in our Great Experiment. They do not seem all that avant garde today, much of the world having availed itself of our experience and now enjoying more efficient, more democratic and more equitable political systems than do we. I know, I know, heresy!!! Well, … perhaps it’s time to stack the logs and light the pyre, or perhaps, in more vulgar albeit abbreviated language, time to get off the pot!
It is clear to many serious civic leaders that our political institutions need to be actualized in order to make them more transparent and less prone to corruption and elitist manipulation, and, assuming popular participation in governance is worthwhile, to make them more accurately responsible to the popular will. Change is required but not change merely responsive to the whims of the day, rather, changes, carefully considered and placed in holistic context rather than incorporated in piecemeal reactions that generate contradictions and confusion, muddling rather than clarifying our sociopolitical waters
For example, one ought not to reject the concept of the Electoral College today (and its two recent antidemocratic results) without also reconsidering the entire concept of federalism, with its fifty different state judicial and legislative systems leading to sometimes contradictory penal laws and non-existent equality of individual rights, except, theoretically, with respect to the gerrymandered House of Representatives. Perhaps not only the Second Amendment needs revision, perhaps all merit reconsideration and polishing, and incorporation directly into the primary constitutional text. Perhaps that requires a redefinition of First Amendment concepts that have been eroded and perverted as well, especially given the current situation of Julian Assange, a genuine journalist. Constitutional reform on broad basis is essential, but the terror in which political leaders of all stripes hold the “masses” has made the calling of a constitutional revision convention impossible for over 230 years, a long time, too long a time.
Constitutions (as is federalism), are inherently antidemocratic and conservative. Constitutions, in their most fundamental function, seek to impose one generation’s values on future generations and if not provided with adequate means to evolve in order to take into account changing contexts, all too quickly become calcified straightjackets. In the United States, the problem is aggravated because two parallel methods of changing constitutional norms have evolved, the formal method of amending the Constitution through congressional and state action, and that devised by John Marshall in the illogical but overwhelmingly powerful decision at the beginning of the nineteenth century, Marbury v. Madison. That decision usurped constitutional control from the executive and legislature to the judiciary, arguably making the judiciary the most powerful of the three branches of government and germinating the perpetual argument between “strict constructionists” and “organic interpreters” (i.e., those who disdain original intent in favor of reflecting current norms and values, regardless of how tortured the logic employed), now a critical political issue with respect to selection of the members of the federal judiciary. Contrary to what we are taught, the “founding fathers” (or at least some of them) had, at the Constitutional Convention of 1787, considered the issue of constitutional control and in fact proposed but rejected several alternatives involving constitutional review councils that included the president and members of the judiciary, instead, the members determined that such role would be exercised by the president alone (subject to Congressional override) through the veto process. Not that the decision of the Constitutional Convention was the best one available, but it was what is reflected in the Constitution itself. Specifically, Marbury v. Madison created an alternative, informal method of amending the Constitution requiring no public participation but rather, merely the vote of a majority of the members of the Supreme Court, a group granted monarchial life tenure, hardly a democratic mechanism. The formal mode of amendment called for by the Constitution is rarely used (33 amendments have been proposed, of which 27 have been adopted, but 2 canceled each other out) while amendment via the judicial route, although exceedingly infrequent at first, has become almost continuous with some decisions having been extremely divisive, for example, the right to abortion created out of shadows (literally) in Roe v. Wade. More recently federal judges of limited territorial jurisdiction (most are) have taken to issuing nationwide injunctions against executive branch decisions usurping the power of the Supreme Court in that regards, especially when it appears probable that the lower court decisions will eventually be overturned. A scheme, ironically, initially hatched by Republican opponents of executive actions taken by former President Obama.
An aggravating factor is that with the best of intentions, the Constitution’s fundamental federalist premise has been tortured, not only through judicial amendment, but through critically important formal amendments undertaken in the era between the end of the Civil War and the period immediately following the First World War (the once denominated “war to end all wars” which obviously involved a horrible misnomer). The thirteenth through eighteenth amendments fundamentally changed the nature of the federal government by thoroughly eviscerating the power of the states and massively expanding the power of the federal government, changes necessary in order to implement the rights of minorities and women, attain some semblance of political, albeit not social or economic equality, and to provide realistic funding for governance at the federal level, essential for the evolution of an American Empire (e.g., today’s massive defense budget). The changes, mainly designed to implement more democratic and pluralistic concepts, were probably not only necessary but essential. However, by taking a piecemeal approach they invited the revenge of the “law of unintended consequences” and the result is systemic incoherence. The consequences? A poorly planned and coordinated de facto constitution-of-sorts with which hardly anybody agrees but which is virtually worshipped as a religious revelation. Like most religious revelations, it is respected more in the breach than in actuality.
A major result of the foregoing is that with a great deal of sound and fury but very little real insight, we, as “the People”, have, in large part, evolved into separate antagonic, politically polarized groupings on almost all political issues. Most fundamentally perhaps, without even recognizing it, we have become profoundly divided as to whether our fundamental governing concept ought to be passive, pluralistic federalism or activist, democratic hegemony, in each case with liberty too often an afterthought in the quest for more perfect security. While such division is manifest, we lack the cognitive understanding necessary for effective resolution of the issues it raises. Too often we refuse to look into mirrors to determine who we are, preferring to look at pretty pictures, imagining ourselves as the subjects, “the exceptional” as both Obama and Trump describe us.
We generally have little or no understanding of the delicate weave of concepts involved in our Constitution, an understanding essential in arriving at workable solutions. For example, take the case of the vast difference between the fuzzy-feeling concept of democracy we try to sell to ourselves and the rest of the world, with its reality. While we like to include everything we find politically attractive in the definition of democracy, it is absurd to include within its conceptualization three concepts as inherently opposed as are majority rule (the real meaning of democracy), pluralism (minority participation and rights) and liberty (individual rights). But we do. Despite the reality that because of its inherent characteristics, democracy cannot prevail in an essentially pluralistic federal system, nor is it compatible with minority or individual rights. Hence our perpetual and sometimes fatal bickering (e.g., the United States Civil War). Hopefully, unlike the situation with the world wars of the twentieth century, we will not soon start referring to civil wars with numbers appended.
Our hearts may be in the right place. We try to attain at least a good deal of the best of those three antagonic concepts through the antidemocratic framework imposed by a constitution (ironic, the attainment of at least the verisimilitude of democracy through its antithesis), but we have reached a point of diminishing returns as illogic and incoherence have replaced any semblance of the political discourse necessary to make our dysfunctional system function at all (dysfunctional being different than non-functional, meaning functioning poorly and in pain, but to some extent at least appearing to function).
So; … now, as those who have rejected constitutional government in the name of democracy by refusing to accept federalist electoral results and delegitimizing both the Electoral College and the Senate (but ironically employing state’s rights arguments and the federal judiciary to oppose the policies of the president they hate) demand the elimination of the institutions that deny them power, perhaps the long term consequences of a transition to unitary rather than federal government need to be taken into account.
Unitary government is centralized although administration can to some extent be decentralized, but solely at the pleasure of the central government which can giveth and taketh away at will. Rather than dealing with federalist thematic and territorial fragmentation of sovereignty, all sovereignty in a unitary government model exists at the central level. Among the many, many, examples are the People’s Republic of China and the Republic of Colombia. Local power is virtually non-existent despite highly propagandized claims to the contrary. There is only one judicial system, the central system, and there is only one legislative body, the central congress or parliament (very different concepts all too frequently ignored). Regardless, of the choice, we would want to consider whether a parliamentary rather than a presidential system would be best and whether proportional-result-multi-candidate districts (e.g., as in Ireland and many other states) would be more equitable that the current unitary district, winner –take-all system currently in place. And, of course, the issue of gun rights would have to be addressed, recognizing that its initial premise, a well-armed and trained popular militia in lieu of permanent armed forces, now has no validity.
Such drastic changes require very careful consideration, very careful planning and most importantly, a national consensus. If not, the risk is civil war. Constitutions are political, rather than legal or scientific documents with decisions not based on logic or scientific methods, at least not yet. They involve a tangle of frequently inconsistent compromises by very interested parties rather than by statesmen. As such, they require fairly constant fine tuning, perhaps fine tuning such as is mandated every twenty years in the Florida state constitution.
“Unlikely” many of us would reply, but perhaps more likely than we suspect. After all, logic would indicate that if the fundamental compact under which the sovereign and independent states agreed to a perpetual union is eliminated, then the member states would have the right to determine whether or not they would become parties to a new arrangement, and, were that the case, it might well be that a number of them would prefer to end their continued association in a new state system. And that as occurred in 1861, others would fight to deprive them of that choice.
Things to consider by the metaphorical herd of bulls we’ve become, sharing the china shop in which we find ourselves confined.
© Guillermo Calvo Mahé; Manizales, 2019; all rights reserved. Please feel free to share with appropriate attribution.
Guillermo Calvo Mahé (a sometime poet) is a writer, political commentator and academic currently residing in the Republic of Colombia although he has primarily lived in the United States of America (of which he is a citizen). Until recently he chaired the political science, government and international relations programs at the Universidad Autónoma de Manizales. He has academic degrees in political science (the Citadel), law (St. John’s University), international legal studies (New York University) and translation and linguistic studies (the University of Florida’s Center for Latin American Studies). He can be contacted at firstname.lastname@example.org and much of his writing is available through his blog at http://www.guillermocalvo.com.