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Trump and the USA’s failure, part 2: effective law and distributed power

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I have established the republic. But today it is not clear whether the form of government is a republic, a dictatorship, or personal rule.

Mustafa Kemal Ataturk

Australia’s House of Reps – politics as a team sport – mostly!

Australia has a Constitution, and so does Britain, but we don’t talk about them much – they don’t loom so large over the political system. The Westminster system doesn’t have an impeachment process, for the obvious reason that it is surplus to requirements. Due to its being a political process, impeachment is an unmitigated disaster.

So what happens, under the Westminster system, if a Prime Minister ‘goes rogue’ and either breaks the law or conducts herself in a manner contrary to the nation’s interest?

Well we need to step back a little to answer this question, because, under the US system, an elected President can be a rogue from the start. Trump is a clear case in point. Trump was, of course, far from being regarded as kosher by the Republican powers-that-be when he first suggested himself as a Presidential candidate, so he took his Barnum & Bailey campaign directly to the public, and in doing so highlighted the central problem of democracy, recognised two and a half thousand years ago, by Plato and Aristotle, who were unabashed anti-democratic elitists. The problem being, of course, demagoguery or populism – the notion that the public can be easily swayed by a candidate who promises everything and delivers nothing. The fact that this remains the most central problem of democracy surely says something about humanity in general – something that we may not be able to fix, but which we need to be on our guard against. Democracy is in fact a seriously flawed system – but far better than any other political system we’ve devised to regulate our seriously flawed human nature.

Under the Westminster system it’s far more difficult (though perhaps not impossible) for a ‘rogue from the beginning’ to reach the top of the political tree, because Prime Ministers aren’t directly elected. In fact the Westminster system has no correlate to the US presidential system, its general elections being much more correlated to the US mid-terms. This means, in effect, that under the Westminster system there is one set of general elections to two under the US system. Having two sets of general elections every four years seems a little over-indulgent. It means that you’re always preparing for or recovering from some election or other, and I’m not convinced that this is a good thing for your political health or your economy. And if you were ever to consider dispensing with one of those two sets of elections, clearly the Presidential elections should be the one to go.

Of course, this is sacrilege. Americans are obsessed with their Presidents – they even remember them as numbers – it’s bizarre. But it’s part-and-parcel, of course, with US individualism. It’s not surprising that the superhero is largely a US phenomenon. Many of your worst movies feature a Rambo or Indiana Jones-like character who single-handedly wins out over the baddies, often against a background of official incompetence or corruption. Think again of Trump’s OTT drain-the-swamp campaign rhetoric. And speaking of OTT, let’s not forget the carnivalesque razzamatazz of US Presidential elections, and the oodles of money that candidates are expected to raise, for no reasonable reason as far as I can see.

So, bearing all this in mind, let’s compare the situation and the job description of a Westminster-style Prime Minister with a US President.

Generally the Prime Minister is already an elected member of a party (either of the left or the right) and is chosen by parliamentary members of that party to be leader – much like a captain of a soccer team is already a player in the team and has proven herself to be experienced and knowledgable about playing the game and getting results. She has, in other words, earned the respect of her fellows. The Prime Minister works alongside her fellows, and under the scrutiny of her opponents, in the parliament. The President, on the other hand, is completely separate from parliament and surrounded by his own hand-picked team of very powerful courtiers, who need not have had any previous political experience.

The Prime Minister is able to choose her own cabinet, but only, of course, from elected members of parliament. All cabinet ministers, and indeed all MPs, are under continual scrutiny from other members of the House or the Senate. If the Prime Minister herself (or any other minister) is thought to be ‘going rogue’ or underperforming, she can be subjected to a no-confidence or censure motion in the House – requiring a simple majority. These have sometimes been successful, resulting in a change of Prime Minister between federal elections. While traumatic, such changes of leadership have nowhere near the impact that a change of President would have, since under the Westminster system the power is far more distributed, the team is far more important than its captain. The ‘great man’ Presidential system is such, however, that the only feasible way of dumping a President is by impeachment – an overly elaborate and highly political procedure that is almost designed to inflict trauma upon the populace.

There is, of course, no provision for impeachment in the Westminster system, and there has never been any need for such a process. A Prime Minister can, of course, be dumped for any number of reasons – most of which fall very far short of high crimes and misdemeanours. However, if a Prime Minister does go that far, she would be dealt with by law. There’s no suggestion under the Westminster system that a Prime Minister or any other minister or government official, would be immune from prosecution while in office. To me, the idea is totally absurd, for it seems far more reasonable that the precise opposite should be the case – that a country’s leader should be held to a higher legal standard than any other citizen. In other words, with great power comes greater legal responsibility, as a matter of course. Any political system that operates otherwise is simply rotten at its very core. It follows that the nation’s body of law, not the constitution, should govern the behaviour of those holding high office in government. For example, gaining a financial benefit from holding high office, other than the official salary and benefits that accrue to that office, should be illegal and cause for immediate dismissal in the most straightforward way. Contravening campaign finance laws should also be dealt with severely and immediately. If this causes a crisis in government, then clearly the system of government needs to be reformed, not the law. The constitution is at best a quasi-legal document, a laying out of the political system and the roles of its component parts. As an eighteenth century document, it can’t possibly be expected to cover the legal responsibilities of 21st century office-holders. That’s the vital role of a living, constantly adjusting body of law, to keep up with the legal responsibilities of a constantly modernising and complexifying political and business sector.

But let me return to the situation of Presidents, and candidates for the Presidency, since it’s unlikely that the US is going to give up on that institution.

You’ve learned the hard way that a rogue from the outset can bypass the traditional party system and win enough popular vote – with the help of a foreign nation – to become the leader of the most militarily and economically powerful nation on earth, despite having no political experience, no understanding of his nation’s history, no understanding of the geopolitical framework within which his nation operates, and no understanding of or interest in the global issues that all nations need to work together to solve. In other words, you’ve learned the hard way that anyone can indeed become your President, no matter how unsuited they are to the position. So how do you stop this from ever happening again?

Well if you insist on maintaining a system which ultimately pits one superhero against another, then you need I’m afraid, to admit to a serious but really rather obvious deficiency of democracy – the attraction of the demagogue (and I leave aside here the inherent problems of a state in which so many people can be hoodwinked). You need to vet all Presidential candidates with a set of questions and problems pertaining to both character and knowledge. Character questions wouldn’t be just of the type “What would you do if…” or ‘Do you think it is right to…’, questions that a sociopathic personality can always find the ‘successful’ answer to (though it’s doubtful that Trump could). They should be in the form of complex moral dilemmas that experimental psychologists have been adept at formulating over the years, requiring essay-type responses. The knowledge questions, by comparison, would be straightforward enough. Such tests should be assessed by professional diplomats and psychologists. This vetting, of course, cuts across the democratic process with a measure of ‘adults in the room’ intellectual, emotional and ethical elitism. Because of course you need a member of the intellectual and ethical elite to hold such a high office.

You might argue that Prime Ministers aren’t formally vetted, and that’s strictly true, but there’s at least an informal vetting system in that leaders have generally to climb from the ranks by impressing colleagues with their communication skills, their understanding of policy, their work ethic and so forth. It’s also the case that Prime Ministers have far less power than US Presidents – who have pardoning powers, special executive powers, power to shut down the government, veto powers, power to select unelected individuals to a range of high offices, power to appoint people to high judicial office and so forth. It’s hardly any wonder that characters like Trump are frustrated that they can’t take the next few steps towards total dictatorship. It’s interesting that I’ve recently heard a number of US pundits saying out loud ‘this isn’t a dictatorship’, as if they need to remind themselves of this fact!

Many will scoff at all this gratuitous advice. But you currently have a self-styled ‘very stable genius’ – a boorish, blustering, bullying, belly-aching buffoon in fact – in barricaded isolation in your White House and due to the multi-faceted failings of your politico-legal system, you can’t get rid of him as easily as you obviously should be able to, and I honestly feel that things will get much much worse before you do get rid of him. You can’t blame Trump for this – he has been exactly the same person for over 60 years. The fault lies with your system. If you don’t change it, you’ll never be able to regain the respect of the rest of the democratic world.

Written by stewart henderson

October 7, 2019 at 1:21 pm

Trump and the USA’s failure, part 1 – some modern history regarding two democratic systems

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It is error only, and not truth, that shrinks from inquiry. Thomas Paine

So Australia’s getting a tiny mention now in the Trump debacle, as he and his henchmen try desperately to find dirt on Mueller, Biden, anyone they can divert attention to as this iniquitous regime stumbles towards its own doom.
So it seems to me an opportune time to reiterate and expand upon some of my views about the US political and social system which led to this pass.

First, a bit of a history of modern democracy and a corrective, to some of the views I’ve regularly heard on MSNBC and CNN as the journos and other pundits wring their hands over how the mighty have fallen. It seems accepted wisdom in the USA that their country is the leader of the democratic world, the potential bringer of democracy to the unenlightened, the light on the hill, the world’s moral police officer, the first and best of the world’s free nations. And its beginnings are often cited in the War of Independence against a tyrant king. So how could a nation, which owes its very existence to a revolt against tyranny, succumb to the blusterings, badgerings and bullying of this tyrant-child in their midst?

Well, let’s look at this story.  Britain did indeed tyrannise its colony. But let’s take note of some facts. George III was a constitutional monarch. Lord North was Britain’s Prime Minister during the war of independence. A century and a half before the War of Independence, Britain beheaded its king for being a tyrant. It was then ruled for a time by the Long Parliament, and then the Rump Parliament, before Oliver Cromwell was made Lord Protector of the Realm. These were some of the first none too successful steps towards a modern democracy. Baby steps. Two steps forward, one step back you might say. It didn’t work out so well, and the monarchy was restored in 1660, under the proviso that there would be some parliamentary representation. Then in the 1680s another king was forced out of the country, again for being a tyrant, and trying to convert the nation to Catholicism. This Glorious Revolution, as it was called, brought another branch of the royal family in from overseas, and William and Mary Stuart were presented with the crown, and the first constitutional monarchy was formed – though of course Magna Carta had earlier brought about the first limitations to royal authority, and there were more limitations to come in the future. Again, baby steps away from tyranny and towards democracy. A Bill of Rights was introduced in 1689, much of it based on the ideas of the political philosopher John Locke whose work also influenced the American constitution. 

So, America’s War of Independence was a war against tyranny, I grant that, but the tyrant was more a nation, or a government, than a king – though George III was certainly tyrannical in his attitude to the colonies. Britain, at the time, and for a long time afterwards, was a very powerful nation. And – guess what – powerful nations are always bullies. Always. That’s a universal. Imperial Britain was always a bully to its neighbours, and to less powerful nations that it could benefit from exploiting. The USA in more recent times, has been the same, as has China, Russia (or the USSR) and powerful empires of the past, Roman, Babylonian, Egyptian Assyrian, etc. It doesn’t matter their internal politics – they’re always bullies on the international stage. That’s why more powerful international agencies are needed and are just beginning to arise.

So getting back to democracy – the first US Presidential election was an odd one, as there was only one candidate – Washington. There were no parties, and very few states, and even then only about 7% of the adult population of those few states were considered eligible to vote, based on the possession of property (and of course skin colour, and gender). So, one of the bigger baby steps towards democracy, perhaps, but still another baby step. Of course, parliamentary membership in Britain at the time was subject to a vote, but also with a very limited franchise. 

So The USA significantly contributed to modern democracy, without a doubt, but the whole democratic movement proceeded by baby steps worldwide. For example, it’s surely unarguable that no nation or state could consider itself an effective democracy until it gave women – half the effing population! – the vote, and the USA was far from the first nation to do so. In fact the first state of any kind to do so was New Zealand in 1893, followed by the colony of South Australia – my home, from which I’m writing – in 1894. The USA didn’t grant the vote to women until 1920. 

So enough about democracy for now, but one reason I brought this up was to sort of complain a bit about American jingoism. You’re a really flag-waving, breast-beating country, and you tend to go on about patriotism as some kind of fundamental value. I say you because, though I have precious few readers, by far the majority of them come from the US, according to my WordPress data. Now, this kind of jingoism doesn’t allow for too much healthy self -analysis and critical distance. You need to get out more. I live in Australia, I was born in Scotland, so I’m a dual citizen of the UK and Australia, but I barely have a nationalistic cell in my body. I’ve never waved a flag in my life, never sung a national anthem. Nowadays I call myself a humanist, but I really came to that idea much later – my kind of visceral discomfort and dislike of nationalism goes back to my childhood, I can’t easily explain it, and any explanation would be post-hoc rationalism. I’m happy in any case that my humanism chimes with modern times, as we live in a more global and integrated world than ever before, but I do recognise that nations are still necessary and useful, and that global government will probably always remain an Einsteinian pipe-dream.

In any case, I feel lucky that I’ve spent most of my life here in Australia. The Organisation of Economic Cooperation and Development (OECD) is a group of 35-40 countries, the most developed economies in the world – the world’s richest countries by GDP. Every year for several years now, they’ve rated the member countries on a ‘Better Life Index’ based on 11 different criteria, such as health, income, safety, job opportunities and so on. Basically, a rating of the best countries in the world to live in. A new rating has just come out, and Australia ranks at number two, up from number three last year, but down from number one the year before, and the year before that. So lucky me, though I have plenty of criticisms about the way this country is going. So how does the USA rate? Well, it’s never been number one, or two, or three or four or five or six, and I could go on – which isn’t to say it’s anywhere near the bottom. But could this just be anti-American bias from the OECD? Well, in a sense yes, because I suspect they’re biased towards nations or states that look after their citizens – where there’s more of a sense of communal values. They measure categories such as ‘civic engagement’, ‘community’, ‘environment’ and ‘work-life balance’, categories which step a little beyond individual rights and freedoms – and I think that’s a good thing.

So here’s how I see the problem. The USA seems a little overly obsessed with the individual, and that seems to put it a little out on the libertarian end of the spectrum that stretches from libertarians to communists. I’d argue that there’s never been any instantiation of a communist state or a libertarian non-state – and in a democracy, which is by its nature a bottom-up sort of system, which has to cater for a wide range of views about government, you should always expect to be swinging mildly in the centre between these extremes. But America’s focus on individual freedoms and the great individual leader was evident from the outset, with the way it set up its federal political system. My plan here is to compare it to the Westminster system which I know quite well, and which has sort of evolved slowly rather than being set in stone by an all-powerful 18th century constitution.

Under the Westminster system there’s no directly elected President. Of course, that system did begin with a great individual power, the unelected, hereditary monarch, who, in the time of the USA’s founding and the drawing up of its constitution, was a lot more powerful than today’s monarch. So it seems to have been the thinking of the founding fathers that you could have this powerful figure but he could be elected. And I do say ‘he’ because, be honest, there’s nothing in the thinking of the founding fathers to suggest that they would ever have contemplated a female President. So, remembering that many of the ideas of the founding fathers actually came from Britain, through the likes of John Locke and Tom Paine, their idea seemed to be something like a constitutional President, elected rather than blue-blooded, and hedged around by a parliament that was more constitutionally powerful than the parliament of the time back in the old ‘mother country’. And by the way, it slightly irritates me that there’s this lexical difference for the legislature in the USA versus Britain/Australia, i.e congress/parliament. They’re really the same thing and I wish they had the same name. From now on I’ll use the term ‘parliament’ to refer to the legislative branch under both systems.

So, it seems – and I’m by no means an expert on the US constitution – that the constitution was drawn up to create a kind of balance of power between three branches of law and government – the legislative, the executive and the judiciary. And this would have been quite revolutionary and progressive in its time, some two hundred odd years ago. In fact, the founding fathers may have seen it as so progressive and all-encompassing that the term ‘eternal’ might have been whispered about, like the eternal values of life, liberty and the pursuit of happiness. And so they may have suffered from that natural pride which assumed that the constitution ought not to be altered without difficulty, and so the USA has largely been stuck with it. And I should point out – because it strikes non-Americans as a bit weird – that Americans seem a bit overly obsessed with their constitution.

Okay, so I’ll leave it there for now. Next time I’ll focus a bit more on the Westminster system, and a comparison between Prime Ministers and Presidents.

Written by stewart henderson

October 4, 2019 at 1:20 pm

on the US political and social system in crisis: 2 – the head of state and the constitution

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Canto: So, as we’ve said, the most substantial difference between the US political system and the Westminster system adopted with slight variations by other English-speaking democracies is the position of Head of State. Here in Australia, as in Canada, New Zealand and Britain, Queen Elizabeth II holds that position, and she’s represented locally, outside Britain, by Governors-General. There are differences in each country, with their state and provincial governments and legislatures, but essentially all of these countries are constitutional monarchies in which the head of state and her representatives have extremely limited powers. The USA by contrast has a Republican government in which power and authority is supposed to rest in the people through their elected representatives.

Jacinta: But as you’ve said, the monarch’s power within the Westminster system has been eroded over time by legislation, and essentially given over to the people through their elected reps.

Canto: Yes, as discussed in a previous post, the liberal political philosophy of John Locke was utilised both in the draughting of legislation limiting the monarch’s power in 1689 (and subsequently), and in the draughting of the US Constitution in 1787. That constitution instituted three separate arms of power, legislative, executive and judicial.

Jacinta: It’s said to be the oldest continually operating constitution in the world, which may be an object of pride, but it may also be an obstacle to reform. Just saying.

Canto: What we’re most interested in here is the executive power, defined largely in Article II of the Constitution. The US President has Constitutional powers regarding the vetoing of Congressional bills and the pardoning of convicted persons. These powers are clearly controversial, never more than in the present situation.

Jacinta: And how do they compare with Prime Ministerial powers under the Westminster system?

Canto: Well you never really hear of them, much. The pardoning power, though, isn’t invested in the Prime Minister, it’s delegated to the member of government most responsible for legal matters, in Australia’s case the Attorney-General, and in England the Lord Chancellor. It’s signed off by the monarch or her representative. It’s rarely used, and never controversially as far as I can tell.

Jacinta: But that seems a definite improvement on the US system, spreading the power load, so to speak. And they don’t trade in politically charged pardons, as that would be political suicide.

Canto: As you might think it would be in the US, but often their President pardons people just as he’s about to leave office, when he can’t be re-elected anyway. And that’s another difference. There’s no time limit on the Prime Minister’s tenure, and his length of time in office is just as often dependent on his party’s shifting allegiance as it is on the electorate. So pardoning, when it happens, would tend to be a more consultative process than in the US. And of course there’s no Westminster equivalent to the US President’s veto powers – another limit to placing power in the hands of one person.

Jacinta: So now to the principal difference between the US system and the Westminster system, the fact that the US President is directly elected, albeit through the Electoral College.

Canto: Yes, and he selects his running mate, the potential Vice President, who goes through no electoral process at all. And then appoints a whole host of executive officers – Secretary of State, Secretary of Defence and so on, and on. This is disastrous when you have a populist but obviously politically naive and ignorant candidate, who unsurprisingly selects an equally moronic running mate. Again, compare the Westminster system, where elections are about parties, so that voters, if they’re informed, consider a number of factors which militate against pure populism. These include the policy of the party, the local member in their electorate, and the leader of their party of choice – a leader who is chosen by her peers on the basis of ability, style, popularity, party loyalty and other factors. You’re much less likely to get a witless outsider as your Prime Minister in such circumstances.

Jacinta: And what about an incompetent or criminal head of state? How do you get rid of him in the USA?

Canto: Well of course under the Westminster system the PM is essentially the captain of the party team, but there’s no problem with the team dumping their captain if they feel he’s letting the side down. This doesn’t have to mean an election, though of course it may lead to popular disaffection with the ruling party – but then again it could lead to a swing in the other direction. But the situation of a dud head of state in the US system is far less clear. The whole nation can apparently be held hostage by a President who refuses to recognise any curb on a power that’s already far greater than that of any other leader of a modern democracy.

Jacinta: Well, the serious problem the US finds itself in is highlighted by the confusion about Presidential power, with many pundits claiming in all seriousness that their President can’t be charged with a crime while in office. The absurdity of such putative immunity should be obvious to any sensible person.

Canto: And the President can’t be removed from office it seems, for example through losing the support of his party.

Jacinta: No, because the structure of government is so different there, with the President surrounding himself with his own personal appointees, who will naturally support him. Of course our PM personally selects his cabinet, but these are all elected representatives, members of the party elected to government. Their allegiance is above all to the team, not just to the captain. So what does the US Constitution actually say about removing a dud Prez?

Canto: Well not surprisingly, Article II also describes the conditions for removal of the President:

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors. The Constitution also allows for involuntary removal from office…

Jacinta: Wow, so it might be constitutionally possible to get rid of the whole gang in one fell swoop? Conspiracy with Russian (enemy) agents to win an election, doesn’t that sound like treason? But then there’s this shabby-sounding, very un-Westminster process called impeachment, an inherently doubtful political instrument, surely. Isn’t conviction enough?

Canto: Well, of course impeachment and the rules around it have become hot topics in recent times. We know for example that impeachment doesn’t necessarily mean removal from office, so again the ability of the US Head of State to worm his way out of almost every attempt to remove him remains a serious problem, and a pretty egregious failure of the system. But yes, impeachment is a chimeric blend of legal and political judgement/justice. In most democracies, or at least many, being charged with a crime would be sufficient for removal from office. But the reason, it seems, that this is such a problem in the US is that the head of the state’s ‘executive’ staff are appointed by him, unelected, and therefore none of them really have a mandate from the people to govern.

Jacinta: Well, despite all the problems, the US is headed for almost certain impeachment in this case…

Canto: Well, hopefully the Mueller charges will be comprehensive and wide-ranging, leaving little room for doubt among the majority. Currently, just about everything hangs on the Mueller findings, and we haven’t heard too much from the enquiry recently.

Jacinta: One problem seems to be that that new avenues for enquiry keep opening up almost on a daily basis. It’s like they’re sitting at a table covered in dishes of rich food, and the waiters keep coming out with new dishes before they’ve properly digested what they’ve got. At some point they might just shut the doors and say ‘stop, we’re full up and we’re hurting!’

Canto: But another problem is that the Head of State may choose not to resign after being impeached, claiming that everybody’s being treasonous except himself. What then?

Jacinta: Well we seem to be constantly entering new territory – because nobody has sufficiently considered the prospect of a demagogic but completely lawless head of state. What the USA needs to face, once this crisis is over – and it’s surely set to worsen over the next year or so – is that their system needs a drastic overhaul, with power being more distributed, less concentrated in one individual. That’s the screamingly obvious lesson that virtually no American pundits seem to have learned – so prevalent is the jingoistic disease over there. And currently it’s almost impossible to change their beloved constitution.

Canto: Yes I think we need to look more closely at their constitution and their future. Changing the constitution requires passing an amendment through both houses of Congress with a two thirds majority. But so many changes are needed, regarding Presidential powers (for example the appointment of White House officials and their staff), regarding the financial affairs of the head of state, regarding prosecution of the head of state, regarding the conducting of elections for the head of state. It’s really hard to know where to start, but they have to make their system more flexible, so that the adults can take over when absolutely necessary. I’m happy to stick with my prediction that the present incumbent will be out of office by year’s end, but I’m far less sanguine about it being a non-violent transition. And who will be the replacement? For the rest of the world it’s an embarrassment (and for some, merely a joke), but for the USA it’s a tragedy. Hopefully, though, some vital, if humiliating, lessons will be learned.

 

Written by stewart henderson

July 8, 2018 at 9:57 pm

Posted in head of state

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