America’s imperfect constitutional democracy has worked
By Dr. Radha (Radhakrishnan) Persaud
Last Monday the 538 members of the Electoral College met in the various state capitals to formally cast their votes for Joseph Biden as the 46th President (and Kamala Harris as Vice-President) of the United States of America.
In view of the challenges to America’s constitutional democracy over the past several weeks, the Electoral College vote was a momentous event for democracy in America. It has not, however, stopped the “Trump Train” from continuing to disregard the laws, norms and traditions of American constitutional democracy, which has been injured, and which continues to be strained by the outgoing president.
To be sure, President Trump’s efforts to overturn the legitimate results of the November 3, 2020 election have not been realized. But American democracy, however fragile it may be, has not been broken. The spirit of America’s constitutional democracy emanating from the nation’s Constitution and political processes has stood the test of time.
It may, however, be sensible to be cautious, especially after the shock to the body politic that America has experienced – the shock of the leader of a democratic nation who seeks to annul the verdict of the majority of voters. This degradation of the nation’s democratic structures leads to wondering what other desperate strategies, however, may be designed in order to resist a result that he cannot bear or fathom or accept. Nevertheless, it would seem not to be premature to declare Trump’s campaign against democracy to be effectively finished. His desperate effort to stay in office has come face to face with the United States’ constitutional structures which like those of most stable constitutional democracies depend on established rules of restraint applied neutrally and conclusively.
The Electoral College met on December 14 last in accordance with Article II, Section I of the U.S. Constitution which directs that “Each state shall appoint, in such a manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in Congress”. This confirmation process, hitherto not well known by many Americans and non-Americans, was a significant day for President-elect Biden and Vice President-elect Kamala Harris. President-elect Biden’s 302 Electoral College votes were confirmed – with seven million votes ahead of President Trump in the popular vote. This process was given enormous public attention in view of President Trump’s wish and ongoing attempts to have the election results ignored or overturned.
Interestingly, December 14 also saw Wisconsin’s Supreme Court rule (yet again) against President Trump in a lawsuit to try to have 221,000 votes disqualified in that state. In a 4-3 decision, the Court stated, among other things, that the lawsuit was without merit and that the President was not entitled to the relief he sought. What is significant in this close decision is that the Court’s three Liberal judges were joined by a Conservative judge. Also, this decision was rendered just a few days after the United States Supreme Court ruled against the President who sought to invalidate millions of votes in four battleground states, including Wisconsin. In the highest court, liberal and conservative judges had joined ideas as well!
President Trump has lost some 55 court cases in attempting to overturn the 2020 election. In so doing, he has infused into the body politic a dividing conception of America; those who have supported him and continue to support him in and out of Congress –“Trumpism”– and those who have not. Indeed, America’s political culture and political behaviour have been transformed to some degree over the past four years, and this has manifested itself in the complexity of the body politic and dynamics of the democratic processes and institutions of governance. But the principles and institutional structures of American government remain intact and have in fact survived phenomenal changes in American society since 1787, including a terribly destructive civil war.
As we have seen, the state and federal courts, in their relatively independent and impartial adjudicative role, are fully cognizant of their responsibilities as guardians of the Constitution and thus as principal bulwarks against anti-democratic or undemocratic attempts by anyone, even the highest officials. Presidents have historically been “deferential to the Supreme Court” of the United States. Notwithstanding the current president’s appointment of three judges on the Court, the judicial branch of government has shown that the rule of law and the democratic processes under law have to be respected. That necessarily means no one is above the law, not even the most powerful political head in the nation. It is not surprising, therefore, that the many lawsuits initiated by the president’s lawyers were deemed to be without merit. The Electoral College’s votes had determined a clear winner of the 2020 election. The judges found no credible or reliable evidence of voter fraud.
Also noteworthy is that the U.S. Supreme Court has been fully cognizant of the role of the States as sovereign entities in America’s federal system. In the case of Texas v. Pennsylvania, et. al., the Court stated that “The State of Texas’ motion for leave to file a bill of complaint is denied for lack of standing under Article III of the Constitution”. The Court further stated that “Texas has not demonstrated a judicially cognizable interest in the manner in which another state conducts its elections”. In plain language, Texas cannot force other states to act according to its will. The courts have stood firm, striking down one political expedient after another by the Trump team in their legal attempts to reconfigure the results of the 2020 election.
Perhaps at this critical moment in American history, the judiciary, as Alexander Hamilton (a founding member of the American constitutional system) has stated, is “the least dangerous [of the three branches of government] to the political rights of the Constitution” (Federalist Paper 78). And Alexis de Tocqueville saw the American court system as a forum in which reason is paramount. American governmental institutions have in fact worked. The institutional checks and balances worked in ensuring the integrity of the democratic processes. The courts have checked the anti-democratic (or undemocratic) moves of the president whose power is not unlimited.
The Supreme Court may also have to pronounce on the president’s power to act on pardons, especially for himself. In the 1974 case of the U.S. v. Nixon, the Court ruled unanimously that the president’s “executive privilege” is not absolute. Because of this decision President Nixon had to comply with a court order to turn over tape recordings of the Watergate affair.
In comparative perspective, we recently saw the Republic of Guyana’s highest court uphold the rule of law in the electoral results which were being challenged by the incumbent government. The Caribbean Court of Justice ruled against the Granger government’s attempt to stay in office contrary to the legitimate results of the March 2020 election.
Constitutional reform ( such as changing or abolishing the Electoral College which requires extraordinary majorities for a constitutional amendment) is not necessary to ameliorate situations such as the president’s discontent with the electoral outcome. American democracy has been challenged but it is not necessarily in crisis. Its principles, values and norms need to be respected. Who the players are at the apex of power in the American government matters. Governing with a political philosophy and unifying public philosophy is required for effective leadership and respect for the institutions of governance. Legitimate institutional power is meant to check arbitrary power and political behaviour. As James Madison so well stated, “Ambition must be made to counteract ambition”.
The 2020 election seems to show that President Trump has pursued a personal agenda that, in varying degrees, runs counter to the norms and traditions of the democratic processes and to the rule of law in America — an agenda based on a conception of America that seeks divisions and that ignores the pillars if not sacrosanct words of the Declaration of Independence and the Constitution. Indeed, the integrity of the institutions of governance and democratic process must be respected.
The Electoral College’s results – based on the will of the people – are unequivocal. America’s new political leadership must now seek to meet the greatest challenge of the people – the Coronavirus and its impact on the American economy and society. As was the case after Watergate, and as President-elect Biden has said, the nation must begin to heal.
America’s imperfect constitutional democracy has worked. December 14 has completed the certification process of electing a president. The run off Senate elections in Georgia will determine the balance of power in Congress. The point is that the American people have now spoken in the Electoral College, and for now at least, they have won.
(Trinidad-born Dr. Radha (Radhakrishnan) Persaud is a Professor at the Glendon Campus and in the School of Public Policy and Administration at York University in Toronto. )