Flaws in the US Constitution

by Vijaya Chandrasoma

The Constitution of the United States of America came into force in 1789, and is regarded as the oldest written national constitution in unbroken existence. However, four years of the Trump administration, and Trump’s unprecedented behaviour after his defeat in November have served to expose some flaws in this revered document, which present a clear danger to American democracy. The areas in which these flaws exist are in Congress, the Electoral College and the Lame Duck period of the presidency.

The House of Representatives and Gerrymandering

The House of Representatives was established in 1789, with 65 members elected from the 11 states. The size of the House was capped in 1911 at its current number of 435 voting members. Representation of each state was determined by its population. Each state has at least one representative, irrespective of size, and the District of Columbia (Washington D.C.) has three, making a total of 438 members.

Every ten years, congressional districts of each state are redrawn according to the census, with the intent of providing equitable representation. The new districts are redrawn by state legislatures during the census, and approved by the governor. And if one party has control of the state legislature and the governor, district lines are redrawn to its own maximum political advantage. This meddling with the state’s district lines to give the ruling party an advantage in elections started in Massachusetts in 1812, when the governor, Elbridge Gerry, signed a bill that gave an electoral advantage to the Democratic-Republican Party over the competing Federalist Party. A member of the Federalist Party, in disgust, drew a simulated map of a district resembling the short arms and the long tail of a salamander. Thus the term “Gerrymandering” was born, and this unethical practice persists to the present day, with the resultant iniquity of representation, usually with respect to minorities, in state and general elections.

The Senate

Each state is represented by two Senators, who serve staggered periods of six years. There are currently 100 Senators from 50 states. The capital city, Washington D.C., has no representation in the Senate. The Vice President acts as the president of the Senate, and holds the casting vote in the event of a tie.

The discrimination of national representation in the composition of the Senate is obvious considering that each state is represented by two Senators, irrespective of population. As an example, the four most populous states of California (39.5 million), Texas (29 million) Florida (21.5 million), and New York (19.5 million), with a total population of nearly 110 million, a third of the total population, are represented in the Senate by eight Senators, an approximate representation rate of one Senator for 14 million people. While the four least populous states of North Dakota (762,000), Alaska (732,000), Vermont (624,000) and Wyoming (579,000), with a total population of 2.7 million are also represented by 8 Senators, a representation rate of one Senator for 335,000 people.

The ethnic diversity exhibited in the larger states, California, Texas, Florida and New York, compared to the almost entirely white populations of states like Wyoming and Vermont, means that minorities, especially more recent brown-skinned immigrants, are grossly underrepresented in the Senate.

The time for reapportionment and racial equity in the Senate is long overdue.

The Electoral College

As established in Article II Section 1 of the Constitution, each state has as many “Electors” in the Electoral College as it has Representatives in the House and the Senate, and three for the District of Columbia, the capital territory of the nation. Currently this number is 538 – 435 for the House, 100 for the Senate and three for Washington D.C. This represents the magic number of 270 – one more than half of 538 – Electors needed to win the presidency.

The Electoral College was established by the Framers because “they didn’t trust the people to make electoral decisions on their own. They wanted the president chosen by electors they thought of as ‘enlightened statesmen’”. They also aimed to give an unfair advantage to the slave-owning states, and so ensure that only a citizen of Virginia, the then largest state, could be elected president.

Times have changed, but the Electoral College process continues to give the advantage to a few swing states, and the kingmaking power to elect the president, totally ignoring the will of the people. Voters in states like California and New York, with their large populations of minorities, are, as in the Senate, underrepresented. The reality is that swing states of Florida, Georgia, Wisconsin and Michigan are traditionally more conservative, which presents the Republicans with an unfair edge in a general election. An edge that stood them in good stead in 2000 and 2016.

The Electoral College, rather than the popular vote, has been responsible for the election of the president twice in the 21^st century. Al Gore won the election by 550,000 votes over Bush, and Hillary Clinton surpassed Trump by over 2.8 million votes. In any other country, or in the absence of the antiquated and undemocratic Electoral College, Al Gore and Hillary Clinton would have been elected to the presidency in 2000 and 2016, respectively. The United States would probably have enjoyed 28 years of uninterrupted progressive governments, sans senseless, illegal wars, treasonous cuddling up to adversaries and a serious fascist assault on its democratic ideals. An assault which has failed thus far, but continues to threaten and divide the nation.

The Lame Duck Presidency

When a new president has been elected, the outgoing president retains the full powers of the presidency for the 11 weeks between Election Day in November and Inauguration Day on January 20 of the following year. Such a Lame Duck president is traditionally expected to ensure the smooth transfer of power, and avoid making any major decisions which may adversely affect the functions of the new administration.

This period is in complete contrast to the period of transfer of power in other countries. In Britain, for example, if the Prime Minister is defeated on a Thursday, the newly elected Prime Minister is installed in No. 10 Downing Street by Friday night, leaving hardly any time to even change the bedsheets. The French are more liberal; they give the outgoing president ten days to get the hell out of the Elysee Palace. Other countries have more or less expeditious methods of eliminating the vanquished, up to and including incarceration or even assassination, but none has a transition period exceeding a few days.

Trump is already highlighting the dangers of a prolonged transition of power. He is using the powers of his presidency to leave the nation in complete chaos when Biden assumes power in January. The US is currently in the grip of an unprecedented economic crisis, and the national travails of a pandemic which has been criminally mismanaged since its inception and continues to claim 3000 lives every day. There is recent evidence that Russia has been hacking and spying on multiple government agencies, including the Departments of Homeland Security and Commerce, which have been hit by massive data breach in one of the worst cyber intrusions in history. Trump has said not one word about this Russian aggression. In fact, he has threatened to declassify vital security documents which will help the nation’s adversaries. President Putin could not have wished for a more willing accomplice in his stated ambition to marginalize the USA.

The five weeks of the Lame Duck presidency before Biden is inaugurated could well be the most dangerous period in American history. Trump will likely spend these last weeks in a flurry of temper tantrums, lashing out at his enemies in vengeance, self-dealing, tossing out pardons like confetti at a wedding, and trying to discredit his opponents and the system itself. Americans who want to see the rule of law restored and the Constitution strengthened must be prepared to fight for it, in the courts and in the streets if necessary. Trump and his followers will not “go gently into that good night”.

We have Trump to thank for exposing these dangerous flaws in the US Constitution. The Founding Fathers could be forgiven for these omissions as they would never have imagined, in their wildest dreams, that a clinical psychopath, lacking even a trace of humanity would be elected to the presidency.

The nation must learn from its mistakes, even acts of treason, of the past four years and amend the Constitution to invalidate these flaws. Amendments to make representation in the House and Senate more equitable; to abolish the antiquated and intrinsic racism of the Electoral College and ensure that future presidents are elected by the popular vote; and most importantly, to make certain that the transfer of power to the new president is achieved with minimum delay, so that an outgoing president will never again try to wreak vengeance on the country because of his rejection by the voters.

Trump is vowing to continue the fight to overturn the election, begging for contributions from Republicans to help him in his delusional quest. He has to date swindled his supporters to the tune of over $200 million. On false pretenses, as he has given his hand away by planning a Friends and Family program for presidential pardons. His appeals for funds from his supporters for legal costs to overturn the election are therefore only aimed at making money, as pardons are granted only at the end of a presidency.

The issue of presidential pardons has traditionally been a means to redeem cases of injustice, and done on the recommendations of the Office of the Pardon Attorney. This White House has been inundated by hundreds of pardon requests following the election loss. Trump has been abusing, and intends to abuse this privilege before he leaves the White House, to pardon members of his family, friends, even himself, who have been complicit in, or committed crimes during his corrupt presidency. It may be pertinent to remember that the Supreme Court ruled, in 1915, that the acceptance of any kind of pardon, including presidential, is in itself an admission of guilt.

On Monday, December 14, the Electoral College certified that President-elect Biden had won 306 votes and formally declared his presidency.

On Monday, December 14, the first vaccination to combat Covid-19 was injected on live TV into the arm of New York nurse, Sandra Lindsay, at the Long Island Jewish Medical Center. An amazing scientific achievement, providing a glimmer of hope even as the nation passes the grim milestone of 300,000 Covid-19 American fatalities.

Monday, December 14, 2020 will go down in history as a Day of Honour, Triumph and Hope, both for Democracy and for Science. And a Day of Relief, for finally, if only formally, vanquishing the four-year plague that has been Donald J. Trump, the multiple Loser of the 2020 presidential election.