If you really want to know what’s wrong with America’s legal and political system, don’t look to the Constitution for guidance. The Constitution is the problem.
The Framers, who are treated as if they were in some way higher beings, Gods in human form, had in fact no special insight denied to other men and women and other times. They had great writers (“We the people”) and the best of intentions. But what they did, with the subsequent connivance of history and tradition, has bound the United States to a form of government that too often flies in the face of good sense and even justice itself.
The Supreme Court likes to present itself as pure and unblemished. Its supporters would have us believe that it can do no wrong, made up as it is of men, and the occasional woman, possessed of the nation’s greatest wisdom, with unique access to ancient knowledge.
Who believes that today?
‘Thou shalt have no other Gods before us’ is the first commandment of the Supreme Court, closely followed by “Thou shalt not take the names of the Founders in vain (or bear false witness against them)” and “Remember Independence Day to keep it holy”.
The Court needs to be updated as a matter of urgency. It is supposed to be a judicial body, deciding on points of law; in fact, it is deeply political. Whether its bias is liberal or conservative is immaterial. No court should be above the law, yet that is precisely what the Supreme Court is. If such a body existed in England, the Daily Mail would go bananas, and rightly so.
We in the UK are often derided for not having a written constitution. But the absence of such a ball and chain has served us well. A document signed in 1787 by 39 men in periwigs, who were often drunk and many of whom owned slaves, no longer serves the best interests of the 235m people of twenty-first century America. Millions of Americans would be hard-pressed to name a single one of the Founders and feel strongly about only one of its provisions, namely the Second Amendment, tacked on in 1791 as part of the Bill of Rights, giving them the right to bear arms.
Brett Kavanaugh isn’t the problem. He is just a consequence of the problem. America is crying out for a supreme court along the lines of that in the UK, made up of judges of impeccable character, with political views that are irrelevant, even unknown, who view the issues before them purely as jurists steeped in the law. Justices should be chosen by a committee of senior judges, chaired by the Chief Justice, working with a federal appointments commission without reference to the White House or Congress. They should be seen as independent, disinterested and open-minded, and they should be obliged to retire at the age of 75.
But the court is not all that’s wrong. Consider the House of Representatives. Its 435 members are, by constitutional decree, elected every two years. Every two years! Brenda of Bristol would have a fit. These days they are almost hysterically partisan, but after the first six months most on both sides of the aisle devote the bulk of their time to raising millions of dollars in funds so that they can be re-elected. Very few stand out. Rather more can be shown to be corrupt, or at the very least liars and cheats. Money is what motivates many in their ranks. Nearly all, on both sides of the aisle, are millionaires or multi-millionaires who, when they retire, more often than not return to Capitol Hill as lobbyists on behalf of those who previously kept them in office.
Representatives, under my revised Constitution (“We the folks”), would be elected every four years and prohibited from raising funds from the rich donors and corporate sponsors who as things stand totally own the process. Further, they would be barred from taking paid work as political lobbyists and consultants for at least five years after their departure from Congress. That way, safe in the knowledge that their eventual pension will amount to as much as $150,000 a year, they could maybe concentrate on doing the people’s business.
The Senate is another boondoggle. Senators like to claim that they are members of “the world’s greatest deliberative body”. If they could get away with it, some of them would undoubtedly wear togas and laurel leaves. In fact, as the Brett Kavanaugh affair clearly showed, they are ready to get down and dirty with the best of them, trading insults and abuse as to the plantation born. In the meantime, they are treated by top restaurants, entertainment and sports venues, hotels and airlines as if they were royalty or cardinals in Rome in the years before the revelations of sexual abuse.
In this case, the constitutional revision I would favour would see their terms cut from six years to four, with five terms as the maximum. As things are, getting a fancy office in the Capitol, complete with staff and driver, too easily becomes a job for life, with all the trimmings. As with the House, Big Oil, Big Pharma, Big Guns and all the other big corporate interest groups, including the National Rifle Association, would be barred from contributing.
In both chambers, incumbency is the principle bulwark against those who would seek to depose or replace you. Go on, they say. Try it. See how far you get. Thus, Representative John Dingell, of Michigan, served as a Democratic member of the House from 1955 – when he filled the seat vacated by his father – until 2015, when he turned 87. Another Democrat, Robert Byrd sat in the Senate from West Virginia for 51 years, 5 months and 26 days. Strom Thurmond, once a proud racist, was still in office for the Great State of South Carolina when he was 100 years-old. Scandal and old age remove more politicians from office than the voters ever do.
The Constitution sets down that there shall be two senators from each state of the Union. In 2018, this makes no sense. Between them, North Dakota and South Dakota have a population of less than 1.6 million, yet despatch four senators to Washington. California, with its 40 million people, gets to send just two. The Founders are responsible for this. Granted, most of them had never heard of California, but that’s hardly an excuse for an anomally that becomes more obvious and ridiculous with each passing year. The West Coast state that, if independent, would boast the world’s fifth-largest economy, should have four senators, and the Dakotas one each – and that would be generous.
Except that, oh no … what would James Madison say? For heaven’s sake, Madison was born in 1751, when George II was on the throne. He grew up on a slave plantation. He died before the invention of the match, when the Pickwick Papers was the latest publishing sensation. But he continues to rule America’s self of itself with an iron hand as if he was all-seeing and all-knowing, like Moses, or Mark Zuckerberg.
The most urgent case for reform is that of the Electoral College, a shadowy, winner-takes-all body that never meets but determines the final result of presidential contests. By allowing states to throw their entire electoral weight behind whichever presidential candidate gains the most votes in their jursidiction, even where the result is a Brexit-like 51% to 49%, democracy nationwide can easily be turned on its head. The 2016 “win” by Donald Trump is only the most recent and most egregious example of what can go wrong.
But that’s enough from me. I yield my time, as they say in Congress, to the satirist Bill Maher, a self-confessed partisan, who recently donated $1m to the Democratic Party in advance of next month’s mid-term elections. He was delivering his weekly television homily New Rules on the night when we learned that Brett Kavanaugh was almost certain to take his seat on the bench next to that other paragon of civic virtue, Clarence Thomas.
“The Constitution is not on our side. Bush II and Trump both lost the popular vote. They shouldn’t have been be picking Supreme Court justices at all. Had the Democrats who actually won the popular vote both times been in the Oval Office, we’d now have a 7-2 liberal majority on the court. Instead, as usual, we all had to pin our hopes this week on Senator Susan Collins of Maine, population Stephen King, two lobsters and a bear.”
Maher’s hopes were quickly dashed. The next day, Collins, a three-term Senator with something of a reputation as a Republican maverick, voted for Kavanaugh.