Howard Epstein – THREE CONSTITUTIONS COMPARED: THE USA’S, ISRAEL’S AND THE UK’S
READY FOR YOUR CONSTITUTIONAL, MR PRESIDENT?
The weekend after American democracy faced its biggest test possibly since the assassination of John F Kennedy is arguably a good time to consider whether the US Constitution — a primary purpose of which was to “insure domestic Tranquility” — is fit for purpose, and, in doing so, to see how it compares with those of the UK and Israel.
The scenes observed in Washington DC on the evening of Wednesday, January 6, 2021 — a day 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. After all, America has gone to war several times with the purpose — a subsidiary, if not 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 Iraq in March 2003. How (America’s friends and foes alike now want to know) could a country with such a passion for spreading democracy globally 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 of its Congress? Reasonably conceivably there is a triad of reasons: a total failure of the security apparatus of the US parliamentary structure (the Capitol police force[1], 2,000 strong); a reprobate president, who could not face a reality in which he was rejected by the electorate; and a constitution that has become unfit for purpose.
It will quickly be appreciated that, not only do we not need to dwell on the first, the mundane but essential matter of security, but also the second two are intrinsically linked.
Why, one might ask upon opening the enquiry, would there be a two month lapse between the election and the inauguration of a new president? After all, Trump, the outgoing president, had spent that whole period working up his followers to the frenzy we saw last Wednesday evening. How was that facilitated? The answer lies in the history.
You do not need me to tell you that the Continental United States is massive, so distances are huge. In 1841, it took 110 days for the news of the death of President William Henry Harrison to reach Los Angeles. In Great Britain, news could then travel from London to Edinburgh by a mounted courier in two days at the most. The shorter distances of Great Britain facilitated efficiency: whereas in London, 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, in America a transitional period of two months is required for the old administration to be replaced by the new. Originally, the pause was four months, and the reason for it lay in 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, in the north, to Jacksonville, in the south, is two thousand miles. Coast to coast, the distance is half as much again.
The Pony Express, which operated for 18 months from April 1860, could take a missive from one coast to the other in ten days, using a fresh horse every 10 to 15 miles and a fresh rider every 75 to 100 miles. Seventy-five horses were needed in total to make the one-way trip.
Then came the railroads. The first permanent, continuous line of railroad track from coast to coast was completed on August 15, 1870. From Jersey City, at New York’s access to the Atlantic Ocean, to San Francisco, on the Pacific, is almost 3,000 miles and they were covered in a mere 83 hours. Nevertheless, the perception in 1870 was that, for the substitution of one administration by the other, every day of the four month period was required. Yet, a game-changer had already arrived almost a decade earlier.
On October 24, 1861 the first transcontinental telegraph was completed. In the blink of an eye, an occurrence in Manhattan could be registered upon the human psyche in San Francisco. Indeed, one of the first telegraphic messages was that of 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 and the telegraph system had cost half a million dollars ($13M today), but the American states had become united as never before.
While the time taken to send a telegram message from Edinburgh to London might be a couple of nanoseconds, a cable sent from Washington DC to Los Angeles would take milliseconds — a meaningless difference. What was important in 1788 had become irrelevant by 1861. 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 miniscule as the Mother Country. Hooray, one might say. The Constitution could be brought up-to-date. Yet, if any one was waiting for constitutional change, it is to be hoped that he did not hold his breath.
Does technology shape society, or does society shape technology? The evidence points to the latter, for the Constitution remained unaffected by the almost infinitely-increased speed of communication for another 72 years. No one can accuse the Americans of acting too hastily when it comes to modernising their constitution.
Franklin D Roosevelt was first sworn in as president in March 1933. By reason of the 20th Amendment, ratified at around the same time, his next would 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.
Ah. The Electoral College. Mention of it evokes the Schleswig-Holstein Question, a complex set of diplomatic and other European issues arising in the 19th century concerning two duchies. About that question, 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 and deserves the same treatment: no one understands it completely, attempting comprehension is enough to cause madness and 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. 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. (Just don’t mention the question of faithless electors, who refuse to pursue their constitutional obligations, last observed in the Trump-Clinton election in 2016. Much litigation followed and their misguided purposes were condemned in the courts. One might think that they deserved to live out the rest of their days in either Schleswig or Holstein.)
Apart from Maine and Nebraska, which enjoy their own peculiarities, all states employ the winner-takes-all route to choose their electors. They meet and vote in December and, as mentioned, Congress meets in January to ratify their choices. There are currently 538 electors and to win 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.
Until last Wednesday, the outcome was taken by all except Trump and his most loyal supporters as a foregone conclusion. Trump, however, having failed to prove in the courts his allegations of fraud in the counting of the popular votes in several states, 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 rubber-stamped by Congress. The wheels of the US Constitution grind, but they grind exceeding slow.
Trump had the best part of a 100 million followers on Twitter (he was banned from using it a couple of days ago) and he may well go down in history as the Twitter president (or merely, as the British say, a twit — a fool). For the past five years his tweets would go out at all times of the day and night, liberally punctuated with upper case characters and in a way that portrayed him as a man of poor, if any meaningful, education, and certainly no polish. A boor. On January 6, the boor became dangerous: he plainly urged those whom he had motivated to turn up in the nation’s capital to take direct action to prevent Congressional confirmation of Biden’s election from taking place. It may well be that, in the coming days and weeks, this will be presented as evidence of sedition. In any event, in the mayhem that followed, five lives (including that of a police officer) were lost, alongside the political reputation of the Land of the Free.
While Trump was the proximate cause of the invasion of the Capitol building by his urging the mob in the morning, there was, in the afternoon, an unforgivable failure of security. The Capitol’s walls were breached, chaos followed but, doubtless, American justice will deal with Trump in early course. What ought not to go unremarked is that the errant president was empowered by a constitution that should have been rewritten some one and a half centuries earlier, upon the installation of the transcontinental telegraph.
It is hard to think of another country — possibly because there may not be any — in which there is, intentionally, an interregnum 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. It just did.
It is true that there are other polities in which delay occurs between a general election and the installation of the new government but, in the examples that spring to mind, it is a merely the indirect result of a constitutional defect. In Belgium last year, the formation of a government following a general election took almost a year; 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 seats and not necessarily the one with the most votes cast for it nationally. There is certainty — almost invariably — 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 that or the next day. The ills of the PR system, so far rejected in Great Britain, are plain, as observed above, in the cases of Belgium and Israel, but most seriously in that of Germany in the 1930s.
PR encourages a multiplicity of political parties. Without PR, America has two: the Republicans and the Democrats. The UK has the same number: the Conservative Party and the Labour Party (with the last vestiges of the old Whigs, the Liberal Democrats, usually obtaining a politically-meaningless handful of seats). Israel, by comparison, faces its fourth general election in two years this coming March and, thanks to PR, the number of political parties contesting it is still not known. The provisional government of the 1950s of David Ben Gurion presumably thought that PR would ensure fairness (or perhaps that that was the way to ensure the permanent predominance of the Left in the Knesset) but almost 75 years on it has produced a nightmare scenario of political instability and the absence of an approved budget for a country always threatened by conflict.
The desire of the Europeans for comprehensive fairness — simplistic and unachievable as it may be — was a central feature of the somewhat ill-fated Weimar Republic (it having been replaced by Nazism). 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, highly-energised society, through the difficult years of the German hyperinflation of 1921 and the unstable ones 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 Chancellor’s decree — a style of governance allowing quick, unchallenged promulgation of law by a single person, customarily used by kings and dictators. PR 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 whole 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 this past week. 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, the identifiably more popular candidate can be on his way to the White House, with immediacy.
In London, following a successful electoral outcome, the incoming prime minister travels not directly to his official residence at no: 10 Downing Street but via Buckingham Palace, in order to receive the Queen’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 roles of head of the political administration with that of head of state. Accordingly, there is no one for the putative president to ask about forming a government: he must just assume power — and he could do so, following the abolition of the Electoral College, immediately after his election. 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 of course that is a pure technicality.
There is, however, fundamental flaw in the combined roles of the president: he enters the Capitol normally once a year and he normally receives the respect appropriate to the head of state. When William Jefferson Clinton did so, particularly during his second term with sexual allegations swirling around him and the prospect of impeachment on grounds of perjury to a grand jury and obstruction of justice, his monarchical presence added to his natural Teflon coating. Had his friend at that time, British prime minister Tony Blair, been assailed with such allegations, having to enter the bear pit of the House of Commons on a daily basis, with the opposition benches — opposite — baying at him, his early resignation would have followed. Clinton, in his White House ivory tower had no such exposure to the American lawmakers en masse. (Why then is Netanyahu able regularly to attend the Knesset when he has a criminal trial in prospect for corruption? Possibly because the single chamber is arranged in a semi-circle (as in Europe and the US congressional houses) and the English system of adversarial combat, albeit verbal, is not so flagrant. There may be other reasons. Half the present Knesset have government jobs and the “jobniks” of the Knesset doubtless wish to cling onto them for as long as possible. In the House of Commons, when things go awry for the PM, the power of the backbenches is fearsome to the leadership.)
As observed, Trump leveraged the two months between election and inauguration to agitate for his own legitimacy over that of the Constitution. With the mob running amok on the other side of the doors to their chambers, some members of Congress must have thought last Wednesday 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 they never will be. Yet there is more.
By the evening of the day of the insurrection, happily aborted when sufficient security was worked up to intervene, two matters were painfully all too clear: America had just lived through its greatest trauma since Pearl Harbor; and the instigator of that trauma was the president himself. He had posed, and it could not be assumed he would not again pose in his remaining 13 days in the Oval Office, a massive threat to the security of the nation. Not only is the president the head of government and head of state, he is also the commander-in-chief of the military might of the country. As such, he has the codes to launch the whole panoply of nuclear weapons, deliverable by bomber aircraft or by missiles, land-based or carried by ships and nuclear-powered submarines. Was the president wild enough not only to urge sedition by a right-wing mob but also to start a nuclear conflagration?
The immediate problem was this: given that Trump had lost all credibility by the time the nation’s capital was under curfew, at 18:00 hours last Wednesday, would the military execute an order from the commander-in-chief to launch an attack on those perceived as enemies by the Pentagon? Well, if not, what sort of message would that convey to the Chinese and the Russians? It may be that the events of the day were sufficient to worry them that Trump could be mad enough (both Eisenhower and Nixon affected to be madmen in dealing with, respectively, the North Koreans and the North Vietnamese, but unconvincingly) to go for broke and (Hitler style) take the whole country, indeed in Trump’s case the whole of humanity, down with him. Would that not be a proper pretext for a pre-emptive Sino-Russian strike on America? Indeed, since there would be the possibility of delay, while the five-star generals made up their minds about obeying an order from the outgoing, possibly unhinged, president, in the response to their first strike, would that not encourage China and/or Russia still further? Thinking the unthinkable to be impossible, the US Congress, which had been under attack at Trump’s urging on Wednesday, did nothing, for no one appears to have been able to persuade Vice-President Pence to round up sufficient cabinet members or Congressmen, to replace the President instantly pursuant to Article 4 of the 25th Amendment (although there is talk of, notoriously slow, impeachment proceedings). Too little, too late. The 25th Amendment relies too much upon the vice president, who is President of the Senate, and the power should be extended to the Speaker of the House of Representatives (which Ms Pelosi would do in a heartbeat and with relish, if only she could). Is anyone on the Hill alert to this?
As observed, the Constitution was adopted on June 21, 1788. It was not long before it was appreciated that it needed amendment, and the first ten amendments were passed into law three years later. The Second Amendment would lead to much bloodshed, but would be endorsed by the Supreme Court of the United States several times, and into modern times. It reads:
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
It is the second part that interests Americans, who rely upon the Second Amendment for the justification for them to keep and bear firearms.
In 1791, a firearm had to be manually reloaded in a painstaking and time-consuming manner. There were muskets and there were flintlocks, and the most skilled rifleman would be lucky to loose three rounds in a minute. The rate of fire of semi-automatic weapons available to today’s citizens of America is not for contemplation by the faint-hearted but, as a minimum, think 40 rounds a minute. (Automatic weapons can loose of hundreds of rounds a minute and they are to be found in many American households.) In 36 of the 50 United States of America there are no legal requirements for gun registration, no permit is required and no licence is necessary to purchase and own a rifle, a shotgun or a handgun — indeed a multiplicity of them. As a result, many Americans can purchase guns online or at gun shows. The purchase of semi-automatic weapons is legal in most states, as are automatic weapons manufactured before 1986.
When choosing justices to sit on the Supreme court of the United States, so hallowed is the Constitution, as amended 27 times, that candidates who are “originalists” are often preferred. Originalists generally agree that the Constitution’s text had an “objectively identifiable” meaning at the time it was written that has not changed over time; and the task of judges and justices (and other responsible interpreters) is to construct this original meaning. So, one might ask, did those who framed the second amendment in the late 18th century intend that, irrespective of the march of technology, the right to bear arms is so absolute that their greater destructive power is to be ignored for all time? Perhaps only an American could so believe and accordingly the Constitution has remained unchanged. Again, we see society influencing technology, rather than the other way around.
The second amendment had a context, did it not? It opens with the words: “A well regulated Militia, being necessary to the security of a free State”. Surely this ought to mean that a well‑regulated militia is a pre-requisite and, absent some regulation of some state militia, the right to keep and bear arms would be dormant. One can think of a well‑regulated militia that every state has available to it: the National Guard. Whence did this emerge? Why, from a federal law passed the year after the adoption of the Second Amendment. Is it possible that the Militia Act of 1792 was unknown to the lawmakers the year before? Not even remotely.
There were to be further iterations of the Militia Act but all we need to note is that while the Act of 1792 would appear to the uninitiated to have been the context for the Second Amendment and that it led to the creation of the National Guard. Yet, in 2007, in Parker v. District of Columbia, a three-judge panel of the US Appeals Court for the District of Colombia Circuit voted two-to-one to the effect (inter alia) that the importance of the Second Amendment’s civic purpose, and the activities it protects, are not limited to militia service, nor is an individual’s enjoyment of the right contingent upon his or her continued or intermittent enrolment in the militia. Further, In 2008, in District of Columbia v. Heller, the United States Supreme Court ruled that the Second Amendment confers an individual right to possess a firearm for traditionally lawful purposes such as self-defence. Can anyone discern a proper reference to “a well regulated militia”? (Don’t blame me for the omission of a hyphen. That is the text of the Amendment.)
Accordingly, in the USA, the most hallowed right is that to a firearm — which might explain the uniquely high rates of deaths by firearms, year in and year out. It would require a never before observed determination by the new Democrat administration, with Democratic control of both houses of Congress, to work out an amendment of the Second Amendment that could not be circumvented by a Supreme Court heavily loaded in favour of republican views…. Let’s face it. It is never going to happen, not least because it could bring onto the streets some well tooled-up members of society who think of a firearm as their fifth limb.
And the position in Israel, a country that could be at war or under terrorist attack any time of any day of the week? A permit to carry a firearm is utterly remote, save for “settlers”, those who live in Judea and Samaria, or those work as part-time policemen. As for the UK, forget it. If the police do not carry guns, you can be fairly sure that 99% of the population are never going to get to touch one. It is not a constitutional issue in either country: there are laws against acquiring guns. Period.
As for other constitutional comparisons, there is no written constitution in either Israel or the UK. That may facilitate a move away from pure PR in Israel sooner rather than later. The PR system stipulates that the 120 Knesset seats are assigned in proportion to each party’s percentage of the total national vote. The threshold for a party to be represented in the Knesset is currently 3.25% of the total votes cast. Before 1992, it was it was 1%; between 1992–2003, 1.5%; and from 2003 to 2014, 2%. So there is a well-established tradition of increasing the threshold, and it would not take the effort of an amendment to the American Constitution to increase it again. One more heave to 6.5%, double the current level, and there is every chance that the number of political parties would be dramatically reduced. It should be noted that Israel has some Basic Laws, 14 constitutional laws, some of which can be changed only by a supermajority vote in the Knesset but otherwise, there is no written constitution.
For the UK, the absence of a written constitution did not prevent the present prime minister, dismissed as a dilettante, full of braggadocio and bluster, from extricating the country from a three year constitutional crisis over its, in turn, extricating itself from Europe. Boris Johnson achieved this in the teeth of recalcitrant senior party members, a narcissistic — not to say anarchist — Speaker and a supreme court with political aspirations. He went on to form a government with a working majority of 80 seats, something that has rarely been seen in living memory. At the same time, Johnson saw off a Trotskyite challenge and emasculated Her Majesty’s Opposition Labour Party. It may be twenty years from the last to the next socialist government. So much for the oft-criticised absence of a written constitution.
What’s left? Whereas every British and American voter can approach a lawmaker who represents him/her, in Israel there is no such connection. There is only the party list, which sounds like something out of the Russian Duma. Something urgently needs to be done about it. Only the passage of a bill into law is required.
Then there is issue of the term of office. Here America has it almost right. Since the ratification of the 22nd Amendment in 1951, a president can stand for election only twice, whereas in the UK and Israel, there is no limit. But an American four year term is unpractically short. No sooner is a president sworn into office than he starts out on the campaign trail again. Two five year terms and out would be a sensible rule for all three polities.
Conclusions? The Brits have it about right. They have flexibility and there is proper representation of the people. The Israelis need to adjust their PR threshold substantially and allocate members of the Knesset to constituencies so that a citizen can say, “I’m going to contact my MK”. As for the USA, one can only weep, for the Electoral Colleges will not be radically reformed, it will take a great deal of effort to extend the 25th Amendment and the curse of the firearm will endure in a way that cannot be guaranteed for human life. And we have not even touched upon the revising powers of the Supreme Court or on the way in which judicial and public appointments are made politically.
We have certainly seen the last of Donald Trump as a force in American politics but, were another cult leader (for that is what he has become) to be elected president — threatening domestic tranquillity — it is likely that all the issues considered here will still be present, affording the opportunity to cause havoc again; and the constitution of the world’s oldest democracy will still be alive, and sort of well, but still firmly ensconced in the 18th century.
God help America.
© Howard Epstein January 2021
[1] Mission: Protect the Congress – its Members, employees, visitors, and facilities – so it can fulfil its constitutional and legislative responsibilities in a safe, secure and open environment.
Howard Epstein is an author, columnist, political commentator and commercial lawyer. He is well-read, knowledgeable, articulate, voluble and strongly-opinionated about Jewish and Israeli history and current affairs – and a staunch Zionist. He achieved Aliyah in September 2006 and has written following books:-
Traumatized Nation: How America Got To Be So Violent (non-fiction)
Israel at 70: In Weizmann’s Image (non-fiction)
Sputnik: America’s Fateful Challenge (historical novel)
The Compartmentalist (Novel) All of which are available on Amazon/Kindle.
All of which are available on Amazon/Kindle.
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