IMMEDIATE RELEASE 9 October 2020
Today’s Events in Historical Perspective
America’s Longest-Running Column Founded 1932
Thank you, Mr. President
By Douglas Cohn and Eleanor Clift
WASHINGTON – American history will record an unlikely and critical contribution from an unlikely and often criticized source: Pres. Donald Trump. His unusual behavior has exposed the flaws in the nation’s foundation and founding document, the Constitution, now in its two-hundred thirty-first year and in desperate need of an overhaul.
To begin we must go to the beginning when after two terms in office Pres. George Washington peacefully transferred power to his successor, John Adams. Today, Pres. Trump has threatened to ignore this precedent for it is but a precedent, and the Constitution does not address the subject. The 20th Amendment, ratified in 1933, set the date for transfer as January 20th, but not the means. So, if a president refuses to depart, the issue may be brought to the Supreme Court, but as Pres. Andrew Jackson noted, the court has no enforcement powers. Clearly, the time has come to replace a precedent with an amendment lest we end up with squatter presidents.
Ah, but the amendment process, designed to be difficult, has become all but impossible. Three-fourths of the states must ratify an amendment, which means that 13 small states populated by approximately four percent of the nation’s population can prevent the ratification of a necessary and popular amendment, an imbalance not foreseen by the Founding Fathers.
This imbalance carried over to the Senate. The Founding Fathers rightly feared the tyranny of the majority and so created the Senate, giving each state, small and large, equal representation in that body. However, they never dreamed that demographics would skew the numbers in such a dramatic fashion, where California’s two senators representing nearly 40 million people would be outnumbered by 52 senators representing the 39 million people of the nation’s smallest states. This turned fear of the tyranny of the majority into the tyranny of the minority.
Nowhere is this imbalance starker than in the Electoral College where each state is allotted one elector for each senator and representative. Currently, seven states have so few people that they only have one representative, but still two senators. Here again, California with 53 representatives and two senators has 55 electors, whereas 16 small states have 52 electors although their combined populations are half of California’s population. This anomaly explains why a candidate can win the popular vote and lose the election as happened most recently in 2016.
The solution is to find a balance that assuages the potential tyrannical dominance by either the majority or the minority, and one method would be to amend the Constitution to read: “No state shall have more senators than representatives.” Since this would currently only affect seven states, and it would take 13 states to defeat such an amendment, the idea is theoretically possible.
This senatorial problem extends to one of the essential prerogatives of the Senate: the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law.” Ever since the Supreme Court’s blatantly partisan 5-4 decision decided the 2000 election in George W. Bush’s favor, the court has increasingly been viewed as a political as much as a judicial entity.
In this vein, Senate Majority Leader Mitch McConnell, R-Ky., refused to give Pres. Barrack Obama’s nominee, Merrick Garland, a hearing let alone a vote. Yet, today, with the presidential election just weeks away, Trump and McConnell are planning to rush through the confirmation of an ideological nominee, exposing one of the most significant flaws in the Constitution. Instead of appointing independent judges to the Court, presidents and accommodating senators are placing idealogues on the bench – for life. But the solution may be found in James Madison’s support of the new Constitution in Federalist Paper No. 51: “. . . society itself will be broken into so many parts, interests, and classes of citizens, that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority.” In short, there is diversity in numbers. In short, the Supreme Court has too few members. Increasing the number of justices to 21 or more will be decried as court-packing, but Madison would have understood it as the manner in which sufficient diversity in opinions would prevent the court from becoming a politically-motivated institution, and being, instead, the thoughtful, judicial branch it was intended to be.
So, thank you, Mr. Trump. This and more you have revealed.
Douglas Cohn’s latest books are World War 4: Nine Scenarios (endorsed by seven flag officers) and The President’s First Year: The Only School for Presidents Is the Presidency.
© 2020 U.S. News Syndicate, Inc.
Distributed by U.S. News Syndicate, Inc.
END WASHINGTON MERRY-GO-ROUND
IMMEDIATE RELEASE 9 October 2020