A discourse on American political institutions

A discourse on American political institutions Hasan M. Zulfiqar In which ways are the political institutions of the United State democratic? In which ways might they be thought to be undemocratic? GV100 Spring 2011 Word Count: 2,876 1 In late Autumn of 2000, the world watched wide eyed as a drama unfolded in Florida, a somber saga that had repeated itself three times already in the political history of the United States. The Presidency of America had been won by a candidate with less of the popular vote than his rival had received.1 Six weeks and a highly circumspect Supreme Court decision later, Americans were left to ponder how democratic their country‟s political institutions really were. Many would lament, and bemoan that this is not what the Founding Fathers had foreseen for America. Yet, precisely what had the framers of the constitution envisaged for their fledgling nation? For was it not them who created the system of the Electoral College, resulting more than 200 years later in the sham of an election that led to George W. Bush being elected President. 2 Did they not realize that the system they espoused was inherently undemocratic and would undoubtedly lead to an executive holding office who was not the first choice of a majority of the public? The title question of this paper asks that we evaluate the degrees to which the main US political institutions are democratic. However it would be amiss to not begin here by saying that to best understand the institutions of the US, we must look at the document that shaped them, the constitution,3 and therefore also evaluate its democratic credentials. Furthermore in this essay will be presented a thorough examination of the three political institutions of the United States which together form the separation of power doctrine – that is, the legislature, the executive and the judiciary – and the ways in which they interact with one another and thus can be said to contribute to the upholding of the principles of democracy. The precise meaning of democracy however, will not be delved into deeply, as to do this would elongate this work far beyond its prescribed word limits. It will be sufficient here, to say that democracy must be seen as a journey and not as the ultimate destination and that the foundational, Aristotelian values which underpin democracy are liberty, equality and therefore the right to equal political representation.4 At the 1 Dahl, Robert A. How Democratic is the American Constitution. Yale: Yale University Press/New Haven & London, 2002. 2 Berman, Larry, Bruce A. Murphy, L. Tucker Gibson Jr., and Clay Robinson. Approaching Democracy, Texas Edition. 5th ed. Houston: Pearson, 2007. 3 Devins, Neal, and Louis Fisher. The democratic constitution. Oxford: Oxford University Press, 2004. Online Version: http://0site.ebrary.com.serlib0.essex.ac.uk/lib/universityofessex/docDetail.action?docID=10103718 (27 December 2010). 4 de Tocqueville, Alexis. "Democracy in America." Eduardo Nolla, Indianapolis: Liberty fund, 2009. 2 end of this work, we shall then come to some conclusion as to whether the United States of America is worthy of being called a democracy. America, the democratic republic The USA can be considered to be the first nation to adopt the democratic principles that we equate with liberal democracy today.5 Many a peoples have looked to the example of the United States in their calls for democracy in their own countries. Yet, of the more than twenty four „steadily democratic countries‟ in the world today, none have a political system remotely comparable to the US. Indeed nearly all of them are Parliamentary systems with a strong legislature and only seven of the twenty five are federal.6 A strange occurrence indeed, considering that the US is the „beacon of democracy‟. Are there pitfalls in the US system which makes it inherently undemocratic, so as to not be the first choice of political system for newly emergent democracies? The framers of its constitution, reverently called the Founding Fathers by Americans, were, at the time of writing the document, acutely aware of the limitations of the doctrine which they prescribed. The American Revolution had not been a struggle of the classes as was to be the later revolution in France, yet can be seen as a rejection of a political system, that of monarchy. For the colonies, later to be „the states‟, the oppression in the form of repressive taxes and pseudo-dictatorial rule under the yoke of a far-away King George III, without adequate representation in the British Parliament, was the primary reason for rebellion which culminated in the American Revolution of 1776.7 After independence and the ousting of the British, the 5 Morone, James A. The democratic wish: popular participation and the limits of American government. New Haven: Yale University Press, 1998. 6 21 of these countries have been taken from - Dahl, Robert A. How Democratic is the American Constitution. Yale: Yale University Press/New Haven & London, 2002. These are, in alphabetical order; Australia, Austria, Belgium, Canada, Costa Rica, Denmark, Finland, France, Germany, Iceland, Ireland, Israel, Italy, Japan, Luxembourg, Netherlands, New Zealand, Norway, Sweden, Switzerland, United Kingdom and United States. The criterion for these countries is that they must have been independent before 1950 and democratic for 50% of the past 60 years. I have myself included in this list Pakistan, Iran and India as I believe they deserve a mention. 7 Barber, Benjamin R. A passion for democracy: American Essays. Princeton, N.J: Princeton University Press, 1998. 3 thirteen former colonies formed the Articles of Confederation, a collection of motley states, which were not at all competent in running government. Therefore, the Constitutional Convention of 1787 was called to establish a better form of self-government and a more perfect Union. From the outset, the convention was beset by various factions arguing differing sides with loyalties changing at a moment‟s notice. The main camps were divided between the federalists, the anti-federalists, those who favored the Virginia Plan against those who were supporters of the New Jersey Plan. Georgia delegate Abraham Baldwin later recalled, “The convention was more than once upon the point of dissolving without agreeing upon any system”. 8 However after much horse-trading, haggling and compromising, after months of debate, the constitution was born. Not many delegates were content with their final product and left many an important issue, like slavery, to future generations.9 The constitution as it was finally laid out in front of the American people was a creature of compromise and therefore not very clear in its meaning. However what concerns us is the nature of the three institutions that were born out of this document – Congress, the Office of the President and the Supreme Court. The Separation of Complication The main models of democratic government available to the framers such as Madison, Hamilton and Gouverneur Morris were the city-states of Ancient Greece, the Roman Republic and the Italian republics of the Renaissance.10 Any polis based system was immediately out of the question as the US covered such a large geographical area, and the consul system of Rome was prone to breed dictators, which the framers above all outcomes, feared. Even the Italian Republics had their limits. Thus the only other option to ensure that democratic principles prevailed was to create a Republic based on the English system. This borrowed form of government from their former colonial masters was tweaked so that in the place of the King was an elected President, and in the place of an aristocratic House of Lords was a democratically Quoted in Supplement to Farrand‟s “Records,” Hutson, ed.3 p. 305. Extracted from Berman, Larry, Bruce A. Murphy, L. Tucker Gibson Jr., and Clay Robinson. Approaching Democracy, Texas Edition. 5th ed. Houston: Pearson, 2007. 8 9 10 Roper, Jon. The Contours of American Politics. New York: Polity, 2002. The three mentioned were framers of the constitution. 4 elected upper chamber of the Senate. Yet the relationship between these and the courts was a matter of contention and the principle of the separation of powers was ill-defined.11 To judge how these institutions may be seen as democratic we must further evaluate them in context with one another. A tale of two houses The United States Congress, given powers in the constitution, was to be a bicameral one. To ensure the supremacy of the people, the legislature was given sweeping powers to make and repeal laws, which makes it in theory, the most powerful of the three branches. However, this democratic goal is underscored by the fact that this branch of government is the most beset with problems, both internal and external, which hamper certain democratic procedures and maxims. Foremost is the fact that in the House, the lower chamber, the fifty states of the Union are represented proportional to the size of their respective population. As one may surmise, this then creates a misrepresentation between the populace, giving larger states, such as California, the majority and thus allowing them to set the agenda irrespective of the votes of smaller states. A major disadvantage of this is that larger states usually receive a larger proportional percentage of available state funds.12 Commentators on the legislature argue, however, that the Senate, where each state may seat two senators irrespective of their population size, offsets the inequality created in the House of Representatives. This would be true but for the fact that any piece of legislation must pass through both houses. This means that if in a conflict of smaller versus larger states, the Senate has the majority to pass a bill, the House majority may inadvertently reject it, or at least filibuster it. 11 Rosen, Jeffrey. The most democratic branch: how the courts serve America. Oxford: Oxford University Press, 2006. Online Version: http://0site.ebrary.com.serlib0.essex.ac.uk/lib/universityofessex/docDetail.action?docID=10160636 (4 January 2011). 12 Paulson, Arthur. Electoral realignment and the outlook for American democracy. Boston: University Press of New England, 2007. 5 Graph I Confidence in Congress Gallup's 2010 Confidence in Institutions poll finds Congress ranking dead last out of the 16 institutions rated this year. Eleven per cent of Americans say they have "a great deal" or "quite a lot" of confidence in Congress, down from 17% in 2009 and a percentage point lower than the previous low for Congress, recorded in 2008. The US Supreme Court and the Presidency ranked 6th and 7th respectively. Source: Gallup Poll, http://www.gallup.com/poll/141512/Congress-Ranks-Last-Confidence-Institutions.aspx, accessed 13/01/2011 Another feature of Congress which has frequently been debated is the „Incumbency Factor‟.13 This occurs when the incumbent senator or representative seeks re-election to their respective chamber and thus has significant funding and name recognition benefits over his rival, who may be unknown and less well funded. From 1952 to 1992, an average of more than 92 percent of House incumbents and 80 percent of Senate incumbents who sought reelection were successful, many relying on „pork-barrel legislation‟.14 Such a situation hardly creates a level playing field necessary for democracy to flourish. Polling has shown that confidence in Congress is steadily declining with rises only at times of crisis due to the „Patriot Factor‟, (see Graph I).15 13 Berman, Larry, Bruce A. Murphy, L. Tucker Gibson Jr., and Clay Robinson. Approaching Democracy, Texas Edition. 5th ed. Houston: Pearson, 2007. 14 15 Ibid. Graphical data courtesy of www.galluppoll.com, see caption of graph for authentic source. 6 We can see from these studies that although most Americans still believe that in principle Congress upholds the basic values of democracy, they are unsure as to whether the opposition on Capitol Hill is a strong and active one. Furthermore, the drafting and passing of bills through both houses has often been criticized by democrats as being an arduous, complicated and unnecessary task.16 Scholars have pointed out that although this is not inherently undemocratic; the amount of badly needed public legislation being either filibustered or voted down by congresspersons who have close connections to lobbyist interests does indeed go against the concept of equal political representation.17 The unusually high number of votes needed to amend the constitution makes difficult the process of bringing clauses into effect according to the changing times, a feature which was very little thought out during the drafting of the constitution. Though critics will argue the above factors, Congress is by far the most democratic of the US political institutions as the base factors of a democratic government such as accountability are very much present in the form of committee hearings. Commander-in-Chief When deciding on the office of the President of the United States, the framers were wading in unknown territory so as to the nature of the position. Never before had such a political position been present in history. Therefore, not only had they to agree upon the powers of the office but also the means of electing to the office the best candidate. Nevertheless, the need for such a position was necessary so as to limit the powers of the legislature, to create a figurehead for the country‟s foreign affairs and to streamline the day-to-day running of the nation. Per contra with this clarity, came the need for the office to be given less powers so as not to give 16 Hudson, William E. American Democracy in Peril: Seven challenges to America’s future. New Jersey: Chatham House, 1995. 17 Pressman, Jeffrey L. House vs. Senate, Conflict in the appropriations process. New Haven: Yale University Press, 1966. 7 birth to tyrants. What resulted was an ill-defined office of duty with very little accountability and regulation.18 The President of the United States is considered to be the leader of the free world, yet he makes some very vital decisions with little or no accountability except at election time. This is so because, like most other nations, he does not sit in the legislature but is elected separately. This has led to the office having created implied powers which are not granted in the constitution, such as that of executive privilege.19 Therefore any position which exceeds its mandate is transgressing against the will of the people. This can be seen in the fact that a US President may veto an act of Congress, a body elected to serve as the will of the people, when the issue of the proposed bill may not have been brought up at the previous election. Another major issue which is oft debated is the system of electing the President. Federalist fears of majority rule at the Constitutional Convention, led to creation of an Electoral College. This institution, primarily supposed to be a body of „wise men‟ from each state proportionate to members of Congress, is however today used to create partisan strongholds in states. In effect, as witnessed in the election of 2000, a candidate who does not gain a majority of the popular vote may succeed to the Presidency. Most scholars on democratic theory however state that the will of the majority of the electorate must be taken into account first.20 As was true during the signing of the constitution, the role of the President in American democracy is as highly contentious an issue as it is unique. Yet the final verdict on how democratic the Presidency is usually in accordance with the relationship of the office with the other two branches of government. 18 Streb, Matthew J. Rethinking American electoral democracy. New York: Routledge, 2008. 19 Ralph, Jason. "American democracy and democracy promotion, Review article." International Affairs (Royal Institute of International Affairs 1944- ) 77, no. 1 (2001): 129-140. http://www.jstor.org/stable/2626558 (11 January 2011). 20 Streb, Matthew J. Rethinking American electoral democracy. New York: Routledge, 2008. 8 An activist Court Of the three divisions of power, the role of the courts was the most ill-defined in the constitution. Despite intensive debate, the delegates to the Convention could not agree on what the political role of the courts should be and even the illustrious writings of Hamilton in The Federalist seem only to agree to disagree.21 It was only partly defined in the landmark decision of the US Supreme Court by Chief Justice John Marshall more than a decade later, in 1803. With this ruling, the Supreme Court defined its source of Judicial Power, the power to review the decisions of the other two branches of government, interpret the laws and the constitution and then, if necessary, rule on the their legality. By this power the US Supreme Court, an unelected body, though appointed by the President and approved by Congress, can overturn the acts of the President, Congress and the states if those acts violate the constitution. Thus were sown the seeds of what nearly 170 years later would come to be known as the activist courts. There exist two schools of thought on this issue, one that the courts are vital for the constitution to be protected and another, which argues that this goes against the principles of democracy, as the judiciary is unelected.22 Both arguments are valid as an elected judiciary would only further complicate matters and a silent judiciary would not be serving its purpose. Courts have also been instrumental in ensuring that public bodies are held accountable such as in the case of the New York City Child Welfare system, Wilder v Sugarman NYFC 1973.23 Yet, the conflict with democracy arises when courts cease to be neutral and start setting the political trend. This has been a recent feature of the Supreme Court in the United States, where appointed justices have taken partial, either liberal or conservative, views in cases such as abortion and gay 21 Madison, James, Alexander Hamilton, and John Jay. "The Essential Essays." In The Federalist, Jack N. Rakove, Boston: Bedford, 2003. 22 Sandler, Ross, and David Schoenbrod. Democracy by Decree, What happens when courts run government. New Haven: Yale University Press, 2003. 23 This was the case of twelve year old Shirley Wilder who was abused in the care of the NYCCW system. 9 rights.24 Democracy should indeed fret when a judiciary loses its impartiality and begins handing out „judicial legislation‟. Besides the obvious fact that justices are not elected but appointed, it is difficult to judge the democratic record of the Supreme Court because it was primarily meant not to be a democratic body to ensure the impartiality of its decision making. Senatus Populusque Americanus A discussion on the political institutions of the United States would be incomplete without a mention of, what many consider to be, the two „greatest‟ institutions in the country. Both are not sanctioned by the constitution and the concept of political parties was never debated at the Convention, yet they have firmly entrenched themselves not only in the American political arena but also in the American psyche. I mean, of course, those towering behemoths that are the Republican and Democratic parties. Few would deny that these two parties have, over the past seventy years had a monopoly on American politics, making it very difficult for any third party to gain any major ground amongst the electorate. This very monopoly is a topic of contention in the United States.25 Proponents of liberal democracy would unanimously point out that only a multi-party system would be most beneficial for democracy, however the two party system that has been a prevalent feature in the US, is troubling to democrats.26 A two party system does not afford much choice for the voter, and thus can be said to inevitably harm democracy. 24 Rosen, Jeffrey. The most democratic branch: how the courts serve America. Oxford: Oxford University Press, 2006. Online Version: http://0site.ebrary.com.serlib0.essex.ac.uk/lib/universityofessex/docDetail.action?docID=10160636 (4 January 2011). 25 26 Hershey, Marjorie R. Party politics in America. 14th ed. Houston: Longman, 2009. Meyerson, Michael. Political numeracy: mathematical perspectives on our chaotic constitution. New York: W.W. Norton, 2003 10 Conclusion -Elections, a democracy doth make not- In the introduction to this paper I referred to democracy as a never ending journey as opposed to a destination. As we have seen throughout the above arguments, this statement still holds true. The framers of the US constitution did not agree on many important issues which were then left to coming generations. America has a mixed record of tackling these challenges and this shows a divided nation. Democracy is on the lips of all, yet trying times often bring about undemocratic reforms. The political institutions have reflected this best of all, where a great struggle between different visions of democracy has, and is still, being fought. As to the question asked at the beginning of this work, we may conclude that the political institutions of the USA are on the path to democracy, yet they are still very far from being democratic. 11 Bibliography Barber, Benjamin R. A passion for democracy: American Essays. Princeton, N.J: Princeton University Press, 1998. Berman, Larry, Bruce A. Murphy, L. Tucker Gibson Jr., and Clay Robinson. Approaching Democracy, Texas Edition. 5th ed. Houston: Pearson, 2007. Dahl, Robert A. How Democratic is the American Constitution. Yale: Yale University Press/New Haven & London, 2002. de Tocqueville, Alexis. "Democracy in America." Eduardo Nolla, Indianapolis: Liberty fund, 2009. Devins, Neal, and Louis Fisher. The democratic constitution. Oxford: Oxford University Press, 2004. Online Version: http://0site.ebrary.com.serlib0.essex.ac.uk/lib/universityofessex/docDetail.action?docID=101037 18 (27 December 2010). Hershey, Marjorie R. Party politics in America. 14th ed. Houston: Longman, 2009. Hudson, William E. American Democracy in Peril: Seven challenges to America’s future. New Jersey: Chatham House, 1995. Madison, James, Alexander Hamilton, and John Jay. "The Essential Essays." In The Federalist, Jack N. Rakove, Boston: Bedford, 2003. Meyerson, Michael. Political numeracy: mathematical perspectives on our chaotic constitution. New York: W.W. Norton, 2003. Morone, James A. The democratic wish: popular participation and the limits of American government. New Haven: Yale University Press, 1998. Paulson, Arthur. Electoral realignment and the outlook for American democracy. Boston: University Press of New England, 2007. Pressman, Jeffrey L. House vs. Senate, Conflict in the appropriations process. New Haven: Yale University Press, 1966. Ralph, Jason. "American democracy and democracy promotion, Review article." International Affairs (Royal Institute of International Affairs 1944- ) 77, no. 1 (2001): 129-140. http://www.jstor.org/stable/2626558 (11 January 2011). Roper, Jon. The Contours of American Politics. New York: Polity, 2002. 12 Rosen, Jeffrey. The most democratic branch: how the courts serve America. Oxford: Oxford University Press, 2006. Online Version: http://0site.ebrary.com.serlib0.essex.ac.uk/lib/universityofessex/docDetail.action?docID=101606 36 (4 January 2011). Sandler, Ross, and David Schoenbrod. Democracy by Decree, What happens when courts run government. New Haven: Yale University Press, 2003. Streb, Matthew J. Rethinking American electoral democracy. New York: Routledge, 2008. Cover design courtesy of MS Office.com Publications. All effort has been made to track the sources referred to in this article, however the author wishes to apologize if any breach of intellectual property law has unknowingly taken place.