A WEAK DEMOCRACY

Civil order is upheld by citizen rule, and democracy is citizen rule. Undermining democracy is a threat to civil order and the capacity of government to contain violence and, right now, democracy in the U.S. is under attack. This attack on democracy is systematic and pervasive, has been going on for many years and, in spite of the safeguards and guardrails built into the Constitution, democracy is faltering.

Democracy is an in-progress experiment that continuously needs defense, corrections and amendments, because it is inherently fragile. It is important to defend democracy and all of its foundational principles, one of which is renewal: renewal of elites, renewal of ideas, renewal of leaders and of institutions; but people in power do not want to get renewed. The natural tendency of people in power is to try and stay in power, whether political or economic, so they will use and manipulate weaknesses of democracy and its tools itself to undermine it. And the biggest institutions with influence and power in our system are political parties and their entrenched interest networks.

THE REELECTION DILEMMA FOR DEMOCRACY

In the book Pathways to Freedom[1], Shannon K. O’Neil, Senior Fellow at the Council on Foreign Relations, dedicates a section to Mexico. In Mexico, by a century old law, no elected representatives, from the president down to local city council members can remain in office beyond one term. Dr. O’Neil argues that reelection makes public office holders more democratic because this mechanism is an incentive to make these elected officials more willing to listen to constituents than would otherwise be the case; thus prohibiting reelection runs contrary to democracy. Her argument opposing the reelection ban is:

“Perhaps designed to limit control of caudillos… this legislation makes politicians dependent on party bosses… and less accountable to voters, who will not get an opportunity to vote for them again…

…The country remains weighed down by the legacy of no reelection, which gives politicians incentives to be responsive to their parties first and their constituencies second.”­

Two hundred and twenty five years before Dr. O’Neil’s words, Alexander Hamilton weighed in on the matter, forcefully advocating unlimited reelection in his arguments in favor of the Constitution being discussed for adoption. He argued that reelection was not only a mechanism for a more responsive democracy, but a way of keeping experience and wisdom in office. Having dismissed already the notion of a quickly removable executive (a Prime Minister) by the “whims” of society or a fraction of the legislature[2] to argue a fixed term of office, proposed as four years, he addresses the issue of “re-eligibility.” On this he says it is “necessary to enable the people, when they see reason to approve of his conduct, to continue [the president] in the station, in order to prolong the utility of his talents and virtues, and to secure to the government the advantage of permanency in a wise system of administration.”[3] He goes on to point out three major “ill effects” to bolster his argument:

1. “One ill effect of this [temporary or perpetual] exclusion would be a diminution of the inducements to good behaviour.”
2.  “Another ill effect… would be the temptation to sordid views, to peculation and… usurpation. An avaricious man… looking to a time when he must yield the advantages he enjoyed, would feel the propensity… to make the best use of the opportunities, while they lasted… to make the harvest as abundant as it was transitory… An ambitious man too… would be much more violently tempted to [attempt by every means] the prolongation of his power.”
3. “A third ill effect… would be, the depriving the community of the advantage of the experience gained by the chief magistrate in the exercise of his office.”

In 1789, shortly after writing those words the Constitution, having been ratified by the required two thirds of the states, became the document by which the United States governs itself, including unlimited reelection of federally elected officers. State legislatures promptly modeled themselves after this mechanism, allowing reelection of legislators and most executive officers. Then, in 1796, George Washington, after serving two terms as president, delivers his farewell address attempting to establish, by custom, the two term presidency convention. The second president of the United States, John Adams, ran for reelection and lost to Thomas Jefferson. Eight years later Jefferson, who did not believe in third or endless terms, despite his successful and popular presidency declined to run.

Much is said about the wisdom of the framers, and on this issue Hamilton favored unlimited reelection and Jefferson opposed it. In the ratified constitution Hamilton prevailed but Jefferson, despite having favorable odds for reelection to a third term, argued: “General Washington set the example of voluntary retirement after 8 years. I shall follow it. And a few more precedents will oppose the obstacle of habit to anyone after a while who shall endeavor to extend his term. Perhaps it may beget a disposition to establish it by an amendment of the Constitution.”[4]

In 1951, only 146 years after first proposed by Jefferson the 22^nd Amendment, the one limiting presidential terms to two periods, was ratified. The debate on term limits has raged since the founding of the republic, and here we are. An amendment that limits the term of the presidency to ensure that power does not excessively accumulate in one person to weaken the other branches of government, as feared by some; and a notion that term limits are a useful way of curtailing such power.

THE MAKING OF PARTY RULE

The thing about power is that it exists. It can be distributed or accumulated but, like dough, squeezed on one side, it will surface on another. That is why checks and balances that identify, stabilize and control power are important. As Dr. O’Neill said, reelection has its place in democracy but experience has shown that a strong presidency, if allowed to have unlimited terms, will eventually destroy separate powers, a key component to a republic, as we have seen in other democratic experiments around the world and Jefferson forewarned. On the other hand, Hamilton’s warning about an avaricious and ambitions man, seeing a defined end to his term, using all the powerful tools of the presidency to benefit his future self –or even to seek to circumvent his limited term and stay in power by violence— is foreboding. Character matters, whether term limited or not.

Term limited legislative representatives do not have the power of the presidency. That is why in their case, as Hamilton pointed out, they will be tempted to use their limited term “… to make the best use of the opportunities, while they lasted…” and prepare themselves for a future life, first favoring and then joining, special interests represented, typically, in lobbyists or party bosses. If the US Congress were to have limited terms, the power of the presidency, party and lobbyists would overwhelm that branch of government more so that it has now.

In states where representatives have limited terms, government rotates into the hands of easily swayed greenhorns, making power shift to special interest factions; it also hems in the state executives. This is not to say that self-interest of elected officers is the only driver of political life, but it is a human trait that influences behavior, and in many cases prevails. An example of power shifted away from elected representatives is the case of Marion Heller. Her influence as a long term lobbyist for the NRA in Florida can be traced to the term limits of the state’s legislature, making her one of the most powerful persons in the capital, Tallahassee, repeatedly bashing newbies to impose her own committee assignments and legislative agenda. She has more tenure in the halls of Tallahassee than any elected individual.

The apex of political power in the US is the presidency, and the president is the leader of his or her party. Over the years, the accumulated power of party has increased substantially partly because of a deadly poison to democracy: gerrymandering. Gerrymandering is a combination of the worst of secured tenure and term limits. Establishing “safe districts” for either party has created a system that allows parties to accumulate power. That power accumulates in their interest (or of a dominant fringe of the party), as opposed to the district’s constituencies. The biggest electoral threat to an incumbent is to be “primaried” by a new party favorite designee. The actual person holding office is not what matters, it is the party that keeps the seat that does. And the leader of the party, the biggest party boss, is the president who can thus manipulate the legislative and, in consequence, the judiciary. Party Rule.

A few years ago I had a friendly argument with an old high school buddy who has since passed away. He insisted that democracy in the US was a sham while I argued that, despite its problems, the US has a system that favors democracy. I still believe that to be the case, but he was right also. Democracy is in trouble, and that is because democracy is fragile. The accumulation of party power through gerrymandering and its consequential concentration in the presidency is a threat to democracy, liberty, peace and prosperity.

The ascendancy of party over country was forewarned by Washington:

“The alternate domination of one faction over another, sharpened by the spirit of revenge, natural to party dissension, which in different ages and countries has perpetrated the most horrid enormities, is itself a frightful despotism. But this leads at length to a more formal and permanent despotism. The disorders and miseries which result gradually incline the minds of men to seek security and repose in the absolute power of an individual; and sooner or later the chief of some prevailing faction, more able or more fortunate than his competitors, turns this disposition to the purposes of his own elevation, on the ruins of public liberty.

Without looking forward to an extremity of this kind (which nevertheless ought not to be entirely out of sight), the common and continual mischiefs of the spirit of party are sufficient to make it the interest and duty of a wise people to discourage and restrain it.”[5]

Hamilton also talked about human nature and its tendency to overrule legacy and continuity: “To undo what has been done by a predecessor, is very often considered by a successor, as the best proof of his own capacity and desert …warranted in supposing that the dismission of his predecessor has proceeded from a dislike of his measures and that the less he resembles him, the more he will recommend himself to the favour of his constituents”[6]. By the same token if a president were to be reelected, he or she would reasonably believe it is an approval of “his measures.” Hamilton, of course, was presupposing unlimited reelections under this premise, but in our modern times this applies to party more than person.

The political and constitutional crisis underlying the governing of the US has come to a head with the galvanizing figure of Donald Trump as president. It is not, however, Trump that created the crisis, it is the elevating of party over nation that has brought us upon this crisis. When Republicans are seen to be or accused of protecting the President, in reality what they are protecting is Party Rule. The crisis is a consequence of the increasing power of parties deciding who gets elected to what office, regardless of the reality that each state, each district and each precinct, is not made up red or blue base members but made up of citizens—who seem not to matter to party. Conversely such indifference makes those citizens skeptical at best and violent at worst against the political system that governs over them. This situation is deeply rooted and goes beyond figureheads or political boogeymen.

The clear and present reality that any candidate, Democratic or Republican, can be equally polarizing to the nation is with us and the consequences to civil order may be dire. When any party rules without controls, democracy flounders. There will be interests favored or disfavored by a party rule system and they will try to curtail democracy and its renovation at every turn. Gerrymandering has made parties and factions increasingly adopt more extreme positions, eventually becoming enemies rather than adversaries. A similar unfettered antagonism in the past eventually led to the Civil War and such danger is not to be ruled out in our time. 

There may still be time to avert such an outcome, but time is running short, and prescient leadership even more so. Corrosive sectarian brinkmanship can be dialed back; challenges to gerrymandering in the Supreme Court may prevail eventually when submitted with a less partisan standard; the National Popular Vote Compact may eliminate the telegenic, divisive and mentally numbing notion of Blue and Red states. These and other measures to strengthen the role of citizens in a democracy, including protection of voting, elections and voting rights, may be too little too late but true believers in democracy and the republic must champion these as long as they can and are able to uphold citizen rule. Party Rule is not citizen rule, and Party Rule makes the country a weak union, a weak democracy and a weak nation.

Carlos J. Rangel books include "La Venezuela imposible", on the long term structural political and economic issues that led to the Venezuela crisis, and "Campaign Journal 2008" on Barack Obama's successful run for the presidency that year.

More on representative democracy and voting: THE BIG NULLIFICATION

More on reasons and consequences of impeachment: WE'LL SEE WHAT HAPPENS....

Other essays on ELECTIONS AND OTHER COMPLICATIONS OF DEMOCRACY

Photo and illustration, copyright their respective owners.

---

[1] Pathways to Freedom, Coleman, I. and T. Lawson-Remer eds. CFR, 2013

[2] “It is a just observation that the people commonly intend the PUBLIC GOOD. This often applies to their very errors.” Federalist No. 71

[3] The Federalist No. 72

[4] Letter to John Taylor, Jan. 6, 1805

[5] George Washington’s Farewell Address, 1796

[6] The Federalist No. 72

...A MORE PERFECT UNION

“I Don’t Want to Change the Constitution”

With those words, a woman recently argued to me her reason for not signing a petition to ban assault weapons. The amazing lack of historical context and perspective the gun manufacturing lobby has been able to insert into the collective psyche of a sector of our society is overwhelming. I must comment.

The Constitution’s preamble starts with “We the People of the United States, in order to form a more Perfect Union…” stating thus, from its beginning, that imperfection is a constant and the search for perfection eternal. That would mean that amendments and clarifications may be required—and currently there are twenty seven.

The structure of the U.S. Constitution is particular in that it is one of, if not the only one, that does not directly address the rights of citizens in its main body, only the way government should be structured or, well, constituted. Articles 1 to 3 establish the branches of government, the fourth the relationships between the states, the fifth is on amendment procedures, the sixth and seventh on transitional and ratification procedures—and that’s it.  Seven articles relating to how to establish a central federal government out of a federation of states; and then there is the Bill of Rights: a separate document discussed and approved at the same time as the body of the Constitution in September of 1787 and ratified by the States in 1789. It is not even until the Fourteenth Amendment, ratified in 1868, that the question of who is a U.S. citizen was clarified.

By constructing the founding document this way, the framers allowed the structure of federal government and states to maintain stability while at the same time establishing separately the individual and collective rights that regulate civil interaction between the members of their society, rooted in past tradition and common law, and which may or may not change in the future; and this latter one is an important point. The Constitution as originally written, for example, includes the following:

“No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.” (Art. IV, Sec. 2)

Other provisions in the Constitution, listed in Article 1, establish the existence of “free Persons” and that those who are not count as three fifths or not at all: “Indians not taxed.” This implicit consent and ratification of slavery and race inequality within the body of the constitution was changed with the ratification of the Thirteenth Amendment in 1865, seventy six years after the Constitution and the Bill of rights were written. As a supplement, the Fifteenth Amendment prohibits the denial of the right to vote based on race or previous servitude (slavery). Those two amendments “changed the constitution.”

Has the Constitution “changed” in any other ways? Article 1 establishes that Senators are to be chosen by the legislatures of each State. In 1912 the Seventeenth Amendment established that Senators would be directly elected. Some amendments should not have been a constitutional issue, such as Prohibition (Eighteenth Amendment), properly repealed in 1933 by the Twenty first Amendment. We are striving for “a more Perfect Union,” after all, so imperfections are allowed.

In 1919 it was determined that the word “Person” in the constitution included women, and the right for women to vote was proclaimed in the Nineteenth Amendment, technically a clarification, not a change –which means clarifications are allowed.

The Second Amendment

Having established that the Constitution can be changed or clarified, the third important caveat is the issue of interpretation. For this, we may look into the most significant Supreme Court ruling affecting the “right to bear arms” as expressed in the Second Amendment: DC v Heller. A selection of quotes from the majority opinion of the decision reads as follows:

“The term [Arms] was applied, then as now, to weapons that were not specifically designed for military use and were not used in a military capacity” (Opinion, p. 8)

“Like most rights, the right secured by the Second Amendment is not unlimited (Opinion, p. 54)

“[Nothing about] our analysis suggests the invalidity of laws regulating the storage of firearms to prevent accidents” (Opinion, p. 60)

“Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home” (Opinion, p. 64)  [1]

On page 55, the opinion argues that discussion on the right to possess military style weaponry as part of a civil militia as pointless—at the same time that it ratifies (once again, as before in several parts of the text) the existence of such things as “lawful weapons,” whereby, it follows, “unlawful weapons” can exist.

On page 57, the opinion argues that handguns are more effective for self-defense than long guns.

On pages 58 and 59, a short discussion on licensing is made, letting the licensing requirements stand, but not addressing the licensing issue per se, as both the Respondent (Heller) and Petitioner (DC) agree that licensing of firearms is permissible. Justice Breyer’s dissent makes this last point forcefully.

The body of the decision relates to the meaning of the Second Amendment. One of the most contentious stipulations is that the text of the Amendment is divided between a “Prefatory” and an “Operative” clause, meaning that what it says before the second comma is essentially meaningless. That is the heart of the opinion of the majority and addressed by most of the dissent by Justice Stevens, centered on the importance and weight or not of the phrase “well-regulated militia” and each word therein. Long discussions, ink and bytes have been spent on that argument and we will not go into that in this writing. [2]

Justice Antonin Scalia, a self-described “originalist” wrote the majority opinion, so the words are his. It is understood then that making military-style weapons unlawful for civilian use [3], background checks, safe storage and licensing laws would be consistent with DC v Heller. However, Heller is an opinion and interpretation of the Second Amendment that has been (mis)used by the gun manufacturing lobby to extend its market unlimitedly and dangerously. Justice Scalia, outside the opinion, was vocal about extending gun ownership. He even said once, while being interviewed by Chris Wallace, that people could conceivably be allowed to purchase and legally have rocket propelled grenade launchers (a.k.a bazookas); but within the confines of the court and his most significant opinion on gun rights, reason mostly prevails.

Having common sense gun laws is not changing the Constitution. Making weapons of mass murder illegal falls within the framing of the Constitution. Licensing and registering is constitutional, and weapon use and ownership can and should be licensed and registered. The gun manufacturing lobby has hijacked the Second Amendment and used it as a marketing tool. It is they that undermine the Constitution.

Article 1, Section 8 of the Constitution makes clear that no federal armed forces have authorized funding except for a maximum of two years, suggesting the framers did not want a federal level permanent armed force. If claims of faithfulness to the intention of the framers were to be taken at face value and no interpretations or corrections allowed, as “originalists” claim, the United States would not have a standing army. The US Army would instead be the “well regulated” militias referred to in the Second Amendment and would look a lot more like Switzerland’s where, in fact, it is a well-regulated militia (follow the link to see what that looks like) in charge of its national defense [4]. This same section 8 calls for the establishment of a Navy, with no specified timeframe, so the actual intention of the framers can be described as murky at best, but it has been adapted to the realities of modern life and economic reasoning of large capital investment in defense related assets (which would have been the case of the Navy at the time, for example). Amendments, clarifications, interpretations and corrections are part of “the Grand Experiment” of democracy undertaken by the United States, in search of a More Perfect Union.

*********

Other essays on the issue of gun control:

ACCESS AND CONTROL, December 16^th, 2012 (first reaction to Sandy Hook).

GUNS AND US – A CALL FOR ACTION, February 21^st, 2018 (first reaction to Parkland)

MARCH 24th – March for Our Lives in Parkland, March 29^th 2018

---

[1] - Justice Scalia writes: "Before this Court petitioners have stated that 'if the handgun ban is struck down and respondent registers a handgun, he could obtain a license, assuming he is not otherwise disqualified,' by which they apparently mean if he is not a felon and is not insane." (Opinion, p. 59). Implicitly he is consenting to background checks.

[2] -  Let us mention, however, that in the section dedicated to explain the so-called Prefatory Clause, "Militia" is argued in a page and a half, while “well-regulated" is dismissed as an adjective that "implies nothing more than the imposition of proper discipline and training". Even in this glossing over, Scalia cites a dictionary of the time (Rawle) that would reaffirm the intention of the word "('Regulate': 'To adjust by rule or method')". "Security of a free state" is analyzed over one page. The majority opinion itself is 64 pages long.

[3] - The use of “Assault Weapons” or “Military Style Weapons” are euphemistic terms that normalize a tool designed to be used efficiently for mass murder and maximum damage. It is preferable to call them what they are: “Weapons of Mass Murder.”

[4] - The debate on standing armies and militias as well as their adscription to either the federal government or the states was extensive and can be appreciated in the Federalist Papers, particularly 29, as well as in the DC v Heller opinion and Stevens’ dissent. Alexander Hamilton makes an extensive case explaining regulated militias, Justice Scalia seems to water down the interpretation of what “well-regulated” means, while Justice Stevens perhaps overreaches.

Photo copyright belongs to its owner: Jim Watson/AFP/Getty Images. Originally found here

FOR OTHER WRITINGS ON GUN CONTROL BY CJ RANGEL GO TO: BESEIGED BY GUN VIOLENCE