A lesson from the Trump presidency

TORONTO—The Trump presidency has brought out the need of amendments to the Constitution of the United States. The Constitution that serves as the Supreme Law of the United States was approved in 1789 and is the oldest among the current written constitutions of the world. A few examples can illustrate how certain provisions of the Constitution could allow a president to be elected with the support of one-third of the population and misuse this outdated Constitution to become a dictator. These provisions relate to the Electoral College; the president’s power to pardon; and the structuring of the Supreme Court. Article II, Sec. 1 provides for the formation of an Electoral College every four years for electing the president and the vice-president: “Each state shall appoint, in such 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 the Congress." Critics have for long argued that the Electoral College vote is less democratic than the direct popular vote. It violates the democratic principle of “one person, one vote” as it allows a president to be elected even if he has lost the national popular vote. This has happened in two of the six presidential elections held in this century: 2000 (George W. Bush) and 2016 (Donald Trump). In fact, it is possible for a candidate to become president by winning the electoral votes in the 11 largest states and only 30 per cent of the national popular vote. Moreover, while electors have almost always been elected by popular vote across all states, the Constitution leaves it to the state legislature to decide how the electors from that state shall be appointed. It would be well within the Constitution for a state legislature to decide not to hold a popular election and itself appoint the electors. In an extreme case scenario, no presidential election (as we have known it) may be held and the president elected by the appointees of state legislatures. This is the provision which Trump tried to use in urging members of some Republican-led state legislatures, particularly Arizona, Georgia, Michigan, and Arizona, to help overturn the Biden win in his favour. Under Article II Sec. 2, the Constitution grants the president the unconditional “power to Grant Reprieves and Pardons for Offences against the United States, except in cases of impeachment." This provision had met with considerable opposition at the Constitutional Convention in 1787. Delegates to the convention argued that the power could be misused and this has been borne out by many unjustifiable pardons issued by several presidents, quite blatantly by Donald Trump in pardoning friends, political allies, associates and relatives. In objecting to the power of pardon, George Mason of Virginia had warned that the president of the United States might not always be someone of sound character and high intelligence. More significantly, he added that the president may frequently pardon crimes which he himself had advised. And this was more than 230 years before what is being termed as the “Trump insurgency." Article III, Sec. 1 provides for a Supreme Court but without specifying its size or any eligibility conditions of age, education, job experience, or citizenship for its judges. It gives the president the power to appoint judges, who hold office for life, with the advice and the consent of the Senate. As such, the president can appoint whoever he wishes to as a Supreme Court judge, provided a simple majority of senators approve the appointment. The judge may not even have a degree in law. The Constitution does not also specify the size of the Supreme Court and leaves it to be legislated by the Congress. The Judiciary Act of 1869 fixed the number of judges at nine and it has remained as that. However, a president, having support of a majority of the Congress, can have the number of Supreme Court judges increased and then appoint whoever he chooses to with the support of the Senate. Under the current Constitution, the United States could therefore have a president voted into office by just the legislatures of the 11 largest states. He can pardon whoever he likes and, with the support of the Congress, can change the size of the Supreme Court and fill the bench with his cronies. With the difficulties surrounding the procedure of removing a President by impeachment (majority vote in the House and two-thirds vote in the Senate), Americans could one day have a dictatorial President well entrenched for four years, unless the Constitution is amended. And that would be no easy task. Article V specifies procedures for amending the Constitution: (1) both Houses of Congress propose an amendment each with a two-thirds vote, and three-fourths of the state legislatures approve, or (2) both Houses propose an amendment each with a two-thirds vote, and three-fourths of the states approve the amendment via ratifying conventions. Only the 21st Amendment, which repealed Prohibition, was passed using method (2) and the remaining amendments passed using method (1). Amending the Constitution is so laborious and time consuming that ratification of amendments has usually taken several months. Ratification of the last amendment—the 27th in 1992—took more than 200 years. Four amendments have been awaiting ratification for decades including one since 1789. How relevant could an amendment remain by the time it is ratified is anybody’s guess. The American people need to realize that it is time for their age-old Constitution to be brought in line with the principles of modern democracy and tailored to meet the needs of the digital and nuclear era. It is up to Joe Biden to lead them from the very start of his presidency to make the necessary changes. This is a must if the United States wishes to spare itself from having some time in the future an irresponsible despot as president and the world from a nuclear catastrophe, since the American president has a finger on the nuclear button. Ghazy Mujahid, a former United Nations population policy adviser, serves on the Board of the Ontario Society of Senior Citizens’ Organizations and is a research associate at York University’s Centre for Asian Research. The Hill Times