we the people
HOWARD D EPSTEIN: THE US CONSTITUTION – STILL LIVING IN THE 18TH CENTURY?
The United States of America assuredly represents the world’s longest continuous democracy, while boasting a written constitution, but we recently saw how what is arguably the USA’s progenitor handles the peaceful transfer of power, absent such a constitutional bedrock. The United Kingdom of Great Britain and Northern Ireland provided, on July 4, 2024, to the world a masterclass in such an event, which compares most favorably with its trans-Atlantic progeny — and this without any codification to guide the way.
Following the UK’s general election, the prime minister, Conservative Rishi Sunak, conceded defeat in the small hours of the following day, saw King Charles III that morning and had effectively handed over political power completely to the Labour leader Sir Keir Starmer by lunchtime.
The scenes, by contrast, observed at the Capitol in Washington DC on the afternoon of Wednesday, January 6, 2021 — a date that will live in infamy (like Pearl Harbor on December 7, 1941, around 80 years earlier) — were more appropriate to a banana republic than to the world’s oldest continuous democracy. This was the more surprising given that America has gone to war several times with the purpose — at least a subsidiary if not always the main one — of bestowing on the subject country a democratic system. Democracy was imposed by war on both Japan and Germany in 1945; on Grenada (a sovereign British Commonwealth state) in October 1983; and, most controversially, on Afghanistan and Iraq at the start of the new millennium, after 9/11. America’s friends and foes alike asked how a country with a passion for spreading democracy globally could have fallen victim to what appeared to be an attempted insurrection in its beating heart, in the very epicentre of American democracy, the Capitol building. People were struck dumb at the sight of hundreds of supporters of President Trump overwhelming the guards and pouring into the Capitol. Some blame Donald Trump himself. They need to search further for the cause.
One of the primary purposes of the American constitution, mentioned in its preamble, is to “insure domestic Tranquility”, meaning to ensure that peace, calm, and law and order coexist within the country. For at least for a day in January 2021, the constitution looked as though it was unfit for that purpose and, if it was then, it still is, no changes having been mooted let alone instituted. This inquiry steps back from the events on the ground and examines how the ground was laid.
Plainly, the continental United States is massive, such that many key distances within it are huge. In 1841, it took 110 days for the news of the death of President William Henry Harrison in the nation’s capital to reach Los Angeles some 2,700 miles distant. At that time, in the very much smaller Great Britain, news could travel from England’s capital, London, to Scotland’s capital, Edinburgh, (only 334 miles) by a mounted courier in two days at the most.
The shorter distances within Great Britain facilitated efficiency: whereas in London following a general election, the outgoing prime minister all but slinks out of the back door as his replacement enters triumphally through the front, within hours after the ballots have closed — as just observed — in America the constitution demands a transitional period of two months for the old administration to be replaced by the new. Originally, the pause was four months, and the reason for it arose from the distances and the concomitant time lapses involved.
The US Constitution was adopted on June 21, 1788. There were then eleven states, united from Maine to Georgia, basically the Thirteen Colonies of the British in North America. The distance between the extremities — from Portland, Maine, in the north, to Jacksonville, Georgia, in the south, is 1,200 miles. From coast to coast the distance is more than double.
The Pony Express, which operated from April 1860, could deliver a message from one coast to the other — just under 3,000 miles distant — in ten days, using a fresh horse every 10 to 15 miles and a fresh rider every 75 to 100 miles. In total, 75 horses were needed to make the trip one way.
A decade later came the railroads. The first permanent, continuous line of transcontinental railroad track was completed on August 15, 1870. From Jersey City, at New York’s access to the Atlantic Ocean, to San Francisco, on the Pacific, could be covered by the iron horse in a mere 83 hours. Nevertheless, in 1870 the perception persisted that, for the substitution of one administration by another, every day of the four month period was required as, for that process, messages would have to go back and forth. Yet, a game-changer had already arrived only a year later than the Pony Express, which appears to have been comprehensively ignored.
On October 24, 1861, the first transcontinental telegraph was completed (which was paid to the Pony Express within a year). In the blink of an eye, an occurrence in Manhattan could be registered upon the human psyche in San Francisco.
One of the first telegraphic messages was that from California Chief Justice Stephen Field in San Francisco to no less a recipient than President Abraham Lincoln, in Washington DC, assuring him of California’s allegiance to the Union. The American Civil War had begun the previous April but the American states had become firmly united, technologically, by the installation of the telegraph system at the minuscule cost of half a million dollars (some $15M today).
Whilst the time taken to send a telegram message — or cable — from London to Edinburgh might be a couple of nanoseconds, a cable sent from Washington DC to Los Angeles could be measured in milliseconds — in practical terms a meaningless difference. What was an important challenge in 1788, upon adoption of the constitution, had actually become surmounted by 1861, upon completion of the telegraph system. The results of the election of the new president would be known, from coast to coast, from sea to shining sea, in moments. In terms of communications, America had been rendered as geographically manageable as its former colonial master. The Constitution could then have been brought considerably up-to-date; yet, if anyone was waiting for constitutional change, it is to be hoped that they did not hold their breath.
Does technology shape society, or does society shape technology? The evidence here points to the latter, for the constitution remained unaffected by the almost infinitely increased speed of communication for another 72 years. It was not until 1933 that the change-over period was reduced from four months to two.
Franklin D Roosevelt was first sworn in as president in March 1933. By reason of section 1 of the 20th Amendment, ratified at around the same time, the next inauguration of a president (it would be Roosevelt again) was to be on January 20, 1937. That was the earliest date that could be chosen, given that it falls a month after the Electoral College vote taken a month after the general election.
Ah. The Electoral College. Mention of it evokes the Schleswig-Holstein Question, a complex set of diplomatic and other issues arising in the 19th century concerning two European duchies. On that matter, sometime British Foreign Minister, Lord Palmerston, is reported to have said: “Only three people have ever really understood the Schleswig-Holstein business: the Prince Consort — who is dead — a German professor — who has gone mad — and I — who have forgotten all about it.” The Electoral College system is similar: no one understands it completely, attempting comprehension is enough to induce madness and many believe that it should be consigned to the trashcan of history.
In brief, the United States Electoral College is the group of presidential electors required by the US Constitution to convene every four years for the sole purpose of electing the president and vice president, pursuant to the outcome of the election. Each state appoints electors equal in number to its congressional delegations of senators and representatives, and they are guided as to how to vote by the numbers of votes cast for the candidates in their own state. (It merely complicates matters to mention the question of faithless electors, who refuse to pursue their constitutional obligations. Last observed in the Trump-Clinton contest of 2016, much litigation followed and their misguided purposes were condemned by the courts. One might think that they should have been sentenced to live out the rest of their days in either Schleswig or Holstein.)
Apart from Maine and Nebraska, which enjoy their own peculiarities, each state employs the winner-takes-all route to choose their electors. They meet and vote the month following the November election and Congress meets a month later, in January, to ratify their choices. There are currently 538 electors and, to win the election, the presidency requires the votes of at least 270 of them. Following the general election of September 20, 2020, Biden achieved 306 such votes and Trump a mere 232 — not that that differential was sufficient to convince the incumbent that he had lost, for he and his followers alleged that the election had been fraudulently conducted.
Trump, however, failed in several states to prove in the courts his allegations of fraud in the counting of the popular votes. It is alleged (although he was not indicted for it) that he sought to suborn the system by whipping the mob up to a frenzy on that benighted January day when Biden’s election was to have been merely rubber-stamped by Congress.
Trump had the best part of 100 million followers on Twitter until he was banned from its future use on January 8, 2021[1]. During the years of his presidency, his tweets would go out at all times of the day and night, liberally punctuated with upper case characters and in a way that, rightly or wrongly, portrayed him as a man of poor, if any meaningful, education, and certainly no attempt at polish or moderation. It is alleged that on January 6, 2021, he became dangerous, for his tweets could be taken as urging crowds of protesters to turn up in the nation’s capital to take direct action to prevent Congressional confirmation of Biden’s election from taking place. In the mayhem that followed, nine lives (including those of five police officers) were lost, along with damage to the democratic reputation of the United States.
Whilst Trump, and an unforgivable failure of security, were the proximate causes of the invasion of the Capitol building, what ought not to go unremarked is that the events were facilitated by a constitution, parts of which should have been rewritten someone and a half centuries earlier, upon the installation of the transcontinental telegraph.
It is hard to think of another democratic country — possibly because there may not be any — in which there is, intentionally, an interregnum (often referred to as the “lame duck” period) — of more than a day or two, let alone eight weeks, between one government, rejected by the people, departing, and its replacement being installed. A lot can happen in eight weeks. In the last months of 2020 it certainly did.
It is true that there are other polities in which delay occurs between a general election and the installation of the new government and in the examples that spring to mind, they are also the result of a constitutional defect. In Belgium, the formation of a government following a general election of June 2010 took some 500 days; and in Israel, a period of several weeks of ugly wrangling and deal-making follows every general election before a government can be formed. The culprit in both cases is proportional representation, or, as it is commonly known, PR.
One of the complaints about the US Electoral College system is that a president may be elected without winning the popular vote across the country as a whole. One such was Trump, who, in 2016, won 304 Electoral College votes to Hillary Clinton’s 227, even though she won the national popular vote by an excess of almost three million votes.
In Great Britain, the same often occurs: the government will be formed by the party with the most constituency seats, which is rarely the one with the most votes cast for it nationally (and in the UK in July 2024, the winning Labour Party garnered just 34% of the popular vote but a supermajority of seats in the House of Commons of 404 out of 650). But the British system has certainty, almost invariably. As observed, within hours after the last vote has been counted, and often earlier, once it has become plain that one party has a clear majority of seats, power is transferred seamlessly on that or the next day. PR necessarily impedes that by encouraging a multiplicity of political parties.
America has two main political parties: the Republicans and the Democrats. The UK effectively has the same number: the Conservative Party and the Labour Party (with the last vestiges of the old Whigs, the Liberal Democrats, and most recently some other minor parties, usually obtaining a politically meaningless handful of seats). Israel, by comparison, enduring its fifth general election in four years in November 2022, thanks to PR, had 24 political parties contesting it. The provisional government of the 1950s of David Ben Gurion presumably thought that a purist PR system would ensure fairness (or perhaps that that was the way to ensure the predominance of the left in the Knesset) but, almost 75 years on, it produced a nightmare scenario of several years of political instability in a country always threatened by conflict.
The customary desire of Europeans for comprehensive fairness, simplistic and unachievable as it may be, was a central feature of the ill-fated Weimar Republic. Installed in post-Kaiser Germany after WWI, Weimar had commendable intentions and indeed encouraged a flowering of German culture, in an avant-garde, liberal, not to say louche and licentious, highly-energized society, through the fraught years of the German hyperinflation of 1921 and the instability from severe unemployment of the remainder of the 1920s. It was typical of the Weimar constitution that there should be PR, “so that every vote counted”. The outcome was typical of PR: a multiplicity of political parties.
The reasons for the collapse of the Weimar Republic and the advent of Nazism can safely be ascribed to two main causes: fiscal frailty since the end of the Great War and PR, as a result of which, at the decade’s end there were some 29 parties in the Reichstag, the German Parliament. By 1930, the only way to run Germany was by the decrees of the Chancellor — a style of governance allowing quick, unchallenged promulgation of law by a single person, customarily used by kings and dictators. PR, accordingly, obligingly both paved the way for Hitler and provided him with a ready-made system of control. Thus do cumbersome procedures undermine democracy. This brings us back from Europe to the New World.
The Electoral College system, with its arcane rules, scope for abuse and inherent, hard-wired delay between election and transfer of power, needs urgent attention, as illustrated by the events of January 6, 2021. It should be replaced by a first-past-the-post system, either state by state or across the whole United States, in either case rendering the Electoral College redundant. By this means, when the last vote is counted, or even before, when the direction of the election is sufficiently plain for one party leader or the other to concede defeat, the identifiable winner can be on his/her way to the White House, with immediacy. (The all-important “transition” could be effected, as elsewhere, there and then. In any event, the 2019 Presidential Transition Act requires the incumbent president to establish “transition councils” by June of an election year to facilitate a possible handover of power.)
In London, following a successful electoral outcome, the incoming prime minister travels not directly to his or her official residence at number 10 Downing Street, but via Buckingham Palace, in order to receive the monarch’s invitation to form a government. So great was the obsession of the Founding Fathers of the American Republic, however, with avoiding a monarchy — after all, America itself emerged only after a revolutionary war to eject one — that they combined, in the president, the role of head of the political administration with that of head of state. Accordingly, there is no one for the putative incoming president to ask about forming a government: he must just assume power — and he could do so, following the abolition of the Electoral College, very soon after his election becomes clear. (Unlike Napoleon, who crowned himself emperor in order to demonstrate that he would not be controlled by the Pope, or submit to any power other than himself, the incoming president has the oath of office of the President of the United States administered to him by the Chief Justice of the Supreme Court, but that, of course, is a pure theatre.)
It was the constitutionally hard-wired two months between the election and inauguration that Trump was allegedly able to leverage to agitate for his dominance over the Constitution. With the mob running amok on the other side of the doors to their chambers on January 6, 2021, some members of Congress must have thought that they might not live out the day. Accordingly, if Congress is not alive to deficiencies in the US Constitution by now, we must conclude that it may be some time before they will be. The wheels of the US Constitution grind, but they grind exceeding slow.
Now, America has a new problem. The lame-duck period began when President Biden was persuaded that he could not run for a second term in 2024. Three clear months are left in which dictators in Russia, China, Iran, and North Korea might be tempted to test the efficacy of the administration that is on its knees if not its deathbed. Little thought was given on that January day in 2021 as to how inimical world leaders might have perceived American readiness to confront or react to a nuclear first strike and there is no sign that it has received any attention since. The world has to hold its breath and hope that opportunism is not to the taste of dictators.
In the meantime, for the constitution of the USA, one must weep, as the Electoral Colleges will not be radically reformed, and the obligatory two-month quarantine period – extended this time to five – will not be foreshortened, any time soon. Rather, it is likely that the fundamental constitutional issues considered here will remain current, affording opportunities to some to cause mayhem again during the pregnant pause. In the end, the constitution of the world’s oldest democracy will still be alive, and sort of well, but still living in the 18th century.
© Howard Epstein — July 2024
Howard Epstein is an English commercial lawyer in his 56th year of practice. He is also the author of Traumatized Nation: How America Got To Be So Violent, available on Amazon/Kindle.
[1] Although reinstated in November 2022 and going on to found a similar site, Trump Social.
