The High Cost of Constitutional Compromises

In the span of just a few years, our belief in the stability of our political system has been shaken to the core by a president seeking to expand his powers beyond the limits imposed by our constitution. We have seen him misuse his powers to breach the independence of our judicial system, attack our freedom of expression, for flagrant nepotism and for undermining our faith in our voting system with persistent false claims of voting fraud. Finally, refusing to acknowledge election defeat, our outgoing president encouraged a mob of his followers to storm our Capitol attempting to violently overthrow our legitimate presidential elections. Never in the long history of our republic have we seen such a spectacle of blatant attacks on our sacred democratic principles.

Why did our constitution’s ingenious “checks and balances” not kick in to prevent these excesses? How could such unprecedented shifts in the balance of power between our government branches go unchallenged? Was it just a problem of improper management of the hugely complex federal government, or do we need to look deeper into the underlying causes of these painful failures of our political system?

The good news is that the basic government structure our Founding Fathers designed is still serving us well. The problems we have seen during the past few years are not the fault of our constitution’s basic concepts, but rather the unforeseen effects of imperfections in our constitution caused by very uncomfortable compromises the Framers were forced to make in order to deal with the particular circumstances of their times. Now, 230 years later, the reasons for these compromises no longer exist, but the provisions in the constitution to accommodate these long defunct needs are still in force, and they now are used by extremists as weapons to undermine our venerated democratic institutions.

What were these compromises, and why do they cause us such problems today? Three examples come to mind that urgently need scrutiny:

1. When debating how much power to invest in the office of president, our Founding Fathers were torn between two extremes. Many feared that a too-powerful presidency could someday lead us back into a kind of monarchy, the very system they had just fought so hard to get rid of. However, they had to face the mundane problem with communications – their mail would take weeks, and the telegraph had not yet been invented. Therefore, they reluctantly granted the president an unusually wide range of unilateral decision making so that he could take action in important and urgent matters when consulting other parts of the government was not possible in a timely manner. These communication problems, 230 years ago, were the main reasons we wound up with presidential powers which in today’s circumstances are unheard of in any other modern democracy.
2. Then our Founding Fathers invented the Electoral College, again because of the communication problems of their days. However, they had another, more insidious reason – elitist as they were, they did not want to entrust the “masses” with selecting the president. Neither of this is valid now, but there are even more urgent reasons to do away with it – this duplication of an indirect election process with the regular popular vote is inconsistent with our belief in “one citizen one vote.” As a result, the Electoral College has several times elevated candidates into the office of president after having lost the direct popular vote. We need to get rid of this outdated construct before it causes even greater damage to our republic.
3. The third of these compromises, allotting two senate seats to each state, was made to overcome the fear of the “small” states being overwhelmed by the “big” states, in itself a valid concern. However, our Founding Fathers could not foresee that now, five of our smallest states with less than one percent of our population would wind up with the same number of senators (10) as the five largest with almost forty percent. This gross distortion of legislative power is being misused by extreme partisanship for its own narrow ends, often to the detriment of badly needed legislation. In the long run, our republic cannot survive when legislative power is no longer seen as representative of its constituency.

The unprecedented turmoil during the recent transition of power clearly demonstrated to us how dangerous these old compromise provisions can be for our republic. We have now witnessed how too much presidential power has been used to undermine our democratic institutions, how easily the Electoral College is perverted to destabilize our political system, and how the senate’s lopsided power position has stymied our legislative process. But how can we realistically expect to deal with the belated ill effects of these outdated compromises? By design, our Founding Fathers required a two-thirds “super-majority” to make changes to our constitution, which in the realities of our current political constellation would certainly be difficult to achieve.

Fortunately, there are other ways to make essential improvements of these outdated provisions. For example, in the Electoral College, each state is setting its own rules to select its electors and what voting instructions to give them. It is not unreasonable to ask the states to unify their electoral rules as a first step. Then, as the electoral voting deals with a pivotal federal election, it should also not be too farfetched to ask the states to make their electoral laws consistent with our federal election laws. These are steps that would go a long way to restore our confidence in our “one citizen, one vote” concept which is fundamental to our democracy.

Similarly, even if we cannot change the lopsided senate allotment rule in the foreseeable future, we should hope that enough senators will eventually realize that some of their arcane procedural rules are indefensible when they are used for the sole purpose of obstruction. Term limits would go a long way to keep senators from perpetuating their position of power at the expense of their constituents. In fact, appropriate term limits should apply to all elected officials and federal judges.

On the outsize range of presidential power, we have to rely on our future leadership’s personal character to bring enough restraint to avoid future abuses. However, short of outright amendments to the constitution, there are a number of specific rule changes that may not require two-third congressional votes, such as prohibiting secrecy in dealing with foreign powers, unilaterally making and breaking commitments with other nations, and committing national resources without congressional approval. This would incrementally bring our president’s powers closer to the realities and requirements of a modern democracy.

Predictably, the attempts to make these hugely important changes will be met with resistance by those politicians who owe their positions of power to these untenable rules. Thus, we find ourselves in some kind of procedural trap, but if congressional leaders really love our country, if they really meant it when they swore their oath of office, they must put patriotic duty above personal ambition. When we see them fail in these duties, they need to be replaced by candidates who are more committed to act in accordance with the oath of office they take.

Whoever will have the great honor and the great responsibility of leading our country in the future will face the formidable task of bringing outdated government rules into harmony with the demands of our times. Will our leadership have the courage and strength of conviction to tackle the pernicious obstacles that entrenched special interests will put in their way?

The outside world has long looked to our American democratic system as a prime example of good governance. It will take a huge effort by all of us Americans to re-establish our (and the world’s) confidence in ourselves and our democratic institutions. If we fail at this task, we are bound to lose what so many have valiantly fought for throughout our nation’s history.

Our Founding Fathers tried very hard to give us the best constitution that all their constituents could agree to in order to put their lofty declaration into reality that “……all men are created equal and endowed with inalienable rights….”

However, they were also telling us to be forever watchful for anything that could jeopardize our hard-won liberties. In the eternally famous words of Benjamin Franklin, they said to us “we gave you a republic . . . if you can keep it!”

Written by Wolfgang Mack.