The answer lies in the combination of six different factors, some very old and some new: the deep racial tensions in American society, dating back to the first Englishman who brought a slave ashore or fought a native American; the way in which these tensions have been increased by the rapid shift of the white population towards becoming a minority of the population as a whole; the radical differences over religion and culture dating back to the 1960s; the way in which these hostilities are being inflamed among conservative whites by the socio-economic decline of large parts of the white middle classes; the US two-party system, which empowers radicals on both sides; and finally, the US Constitution itself, the pot as it were in which all these different ingredients boil together to produce paralysis.
Most of the other problems and divisions (with the exception of conservative religion) are by now common to all the Western democracies. Thus race, for a long time a specifically American issue, has now become a European one due to migration. The role of the US Constitution is however unique to the United States. No other democracy has such an old and venerable constitution – and just like old people, 229 year-old constitutions are liable to start behaving rather oddly in their old age, and in worlds which are utterly different from those of their infancy.
The greatest bewilderment of outside observers concerning the US Constitution concerns the fact that the constitution of the world’s greatest democracy seems in certain respects hostile to democracy, and the constitution of the world’s most powerful state seems hostile to effective government. To this, the answer is yes: this was precisely the way the founders intended it. Wealthy patricians and slave-owning landowners to a man, “democracy” was the last thing they wanted.
Steeped in the history of Greece and Rome (and vindicated so it seemed by the subsequent miserable experience of revolutionary France), they saw democracy as leading inevitably to ochlocracy (the rule of the mob) and from there to tyranny. Their profound fear of tyranny in turn led them to place great restrictions on efficient government, embodied in the famous system of “checks and balances”. These joint fears of the mob and the tyrant also led them to introduce constitutional rules making it exceptionally difficult to change the constitution, and almost impossible to change it fundamentally. So the US Constitution is highly unusual in that it is neither (as one expects in constitutions stemming from democratic traditions) based on upholding democracy, nor (as one expects in constitutions stemming from authoritarian traditions) based on upholding the autonomy and effectiveness of government.
An additional key reason for this is that the Constitution was not – as one would expect today – eventually accepted by a national referendum. It was the product of difficult negotiations between thirteen semi-independent states, and was ratified by them. The “Founders” feared that to allow re-negotiation of the Constitution would allow processes leading to the United States of America breaking up again into independent states or groups of states – which is exactly what happened when the issue of slavery tore the states apart in the 1850s-60s. A revealing footnote to this is that until the Civil War, the official (and of course grammatically correct) formula was “the United States are”. Since 1865 it has been “the United States is”. That small grammatical change cost 620,000 American lives.
The Founders did not anticipate the future battles over race in the USA, and still less the conflicts over sexual issues (to comprehend the inherent absurdity of trying to base judgements today on the intentions of the founders, imagine asking George Washington his views on gay marriage and Trans-Gender rights). Nor of course could they anticipate the enormous growth in the scope and responsibilities of the modern state.
The problems of the US Constitution begin but certainly do not end with the Electoral College. Three times in 57 years (1960, 2000, 2016) this has produced a presidential victor who lost the popular vote – something that has produced astonishment around the world. In the past, the losers accepted the result both because of the sacrosanct nature of the constitutional process and because it seemed that after all, next time round it might be them who benefited – as the Democrats won in 1960 on this basis and the Republicans in 2000. Today however the small but significant extra weight given in the electoral college to states with small populations risks creating a built-in advantage for the Republicans, who enjoy large permanent majorities in Western states with small white conservative populations. In an electorate like that of the USA, where majorities in national elections have been very small in recent years, this small advantage can make all the difference. If the Electoral College keeps on producing results which contradict the popular vote, sooner or later it will delegitimize the whole system.
The imbalance in the Electoral College is replicated on a vastly larger scale in the distribution of Senate seats. Here the fact that every state has two senators hugely disadvantages the Democrats, with their concentration in the heavily-populated urban states of the East and West coasts.
Changing this distribution is impossible under the US Constitution, but there appears to be some chance of reforming an even more scandalous feature of the system, the right of state administrations to draw up constituency boundaries for the House of Representatives, thereby permitting absolutely gross gerrymandering in favour of the ruling parties. In the past, Democrats were as guilty of this as Republicans, but for the past generation the system has worked regularly in favour of the Republicans, with election after election producing Democratic national majorities in the elections for the House and Republican majorities of House seats, or small Republican popular majorities and large majorities of seats. This open scandal cannot however be replaced by the kind of institution which almost everywhere else in the democratic world regulates the distribution of parliamentary seats – a National Electoral Commission – because there is also no provision for this under the Constitution. There are however moves in the US courts – which will be decided later this year – to block at least the more egregious forms of gerrymandering.
This brings me to the strangest part of the US Constitution, the Supreme Court. It is stated as a fundamental principle of the US Constitution and of democracy in general that power is separated into the executive, the legislative and the judicial, and that this is how the US system works. In fact, when it comes to the highest institutions of the US state, what the USA has is an executive – the presidency – and two legislatures: Congress and the Supreme Court. This is because the Supreme Court’s power to make judgements based not on the law but its own interpretation of the Constitution turns it not into an implementer but a maker of law – as witnessed by a long row of Supreme Court judgements (first in a liberal direction, then a conservative one) overturning existing laws on racial discrimination, abortion, gay rights, gun laws and campaign finance.
This is all the more so because on many contemporary issues (like gay marriage or campaign finance) the Constitution itself says nothing at all. The Supreme Court’s decision in these cases is therefore based on what a majority of its members think that the Constitution can be claimed to imply. Or to put it another way, it is like an exercise (quite common in popular fiction and film) in speculating about what people alive 230 years ago would think and do if they could be magically transferred to the present. To make it even stranger, the Supreme Court justices are chosen not by fellow judges but by the president of the day, leading in recent decades to a Court both bitterly divided along partisan lines and slanted politically – by the mere chance of death or longevity – in one or other political direction.
No other superior court in the world acts in this way. In fact, the only real parallel is with Iran’s Velayat-e-Faqih and Council of Guardians. Usually mistranslated outside Iran as “Supreme Leader”, what this title actually means is “Supreme Jurist”. His task and that of the Guardians is to decide on whether Iranian laws and government policies are in sufficient accord with the fundamental sacred texts of Shia Iran. Since the Velayat-e-Faqih is not only a senior cleric but a politician and an Iranian nationalist, some of the decisions of this office have shown a remarkable flexibility, entirely comparable to the flexibility of US Supreme Court judges in interpreting the hidden meanings of their sacred document, the US Constitution.
The way in which the US Constitution is viewed as a semi-sacred document (some conservative scholars have even written that it reflects Natural Law, which is in effect an 18th Century Enlightenment way of saying “God-given”) helps to make it extremely difficult to change. So do the provisions laid down by the Constitution itself, which require that any amendment should be accepted by two thirds of the Senate and then ratified by three quarters of state legislatures – something which in these days of bitter partisan division is beyond the bounds of fantasy. Existing arrangements simply give too many advantages to the Republicans. Yet at the same time every now and then – as in the present ability of the Democratic minority in Congress and of US courts – to block Trump administration policies – they work in favour of the Democrats.
Since any attempt to reform the Constitution would have to involve not a (hopeless) constitutional process but a mass movement on the streets, and since the capitalist elites of the Democratic Party fear such a movement in their deepest souls, there is at present no chance of this happening.
As during the generations before the Civil War and the achievement of Civil Rights for Blacks, we are now seeing a pattern by which embattled conservative white Americans, made more bitter by middle class economic decline, will use the provisions of the US Constitution to fight a prolonged and bitter rearguard action against the forces of racial and cultural change, with the Democrats hitting back with the same weapons whenever they get the chance. Unless Americans (perhaps ultimately Americans in uniform?) can somehow generate a new third political party that unites Americans behind policies that a majority can agree on, and marginalizes both the Republican and the Democratic radicals – something of which there is at present absolutely no sign – it is not easy to see how this miserable pattern can change.
The ancient Greeks coined the political term Stasis, implying a combination of an insoluble stand-off between opposing forces, political crisis, and state paralysis. We are now deep in the era of American stasis, the eventual outcome of which cannot be foreseen.
