7 June 2024

If a mob stormed Parliament, overcoming the security system, causing great fear, killing one person and injuring others, we would regard that country with suspicion; South American tin pot democracy?  If a few of the rioters were charged, but the instigator was not charged 4 years later, we would regard that as a farce. If the instigator then got a fine for irregularity in the bookkeeping of his election funds 4 years later and got a fine that was a tiny fraction of his election budget, he might as well have had a parking ticket. If the instigator then with total impunity stood again for election we would say that the tin pot nature of a quasi-dictatorship was confirmed.  Yet this is exactly what has happened in the USA, where Trump will get a non-custodial sentence, i.e. a fine or some charitable work.  Photo-op in a soup kitchen perhaps?

The Republicans will win if Biden becomes unpopular because the economy turns down, or he supports Israel too much because of the power of the Jewish lobby, or if the scare campaign on his age is successful enough.  This is because there are only two options, Democrat and Republican.  The leaders in the Republican party do not want to criticise Trump because if he succeeds their fortunes will suffer and if he fails, they want to run in 4 years.  In a Big Party, it is all about climbing up their hierarchy- tough luck about the country’s welfare. Even Nikki Haley, who criticised Trump in a desperate effort in the Republican primaries has endorsed him. So we have a President who is too old and should step down standing against Trump who has a criminal record and for some reason cannot be brought to book within 4 years; his past failures, ignorance and appalling policies almost irrelevant in the scheme of things.

In Britain, with First-Past-the-Post voting, the electoral system is similarly distorted to favour only two parties and the inequities are such that you can almost draw a line across the country. Conservative Blue in the South, Labour Red in the North. Other parties and opinions are a dot here and there, they get far more votes than seats.  Post-Brexit the economy has tanked, which is what one might have expected since most their trade was with the EU.  The Conservatives will get a caning, putting in the lack- lustre Labour party, the only alternative, of course.

Back, in Australia, Labor is criticised for doing so little and being Liberal-lite.  They had agreed not to raise taxes and even to give tax cuts because Shorten had been defeated by scare tactics in 2019, so having no policies was a safer, small target option.  The Conservatives rule from beyond the grave.

The problem is that the people have handed the power to a two party system.  When Churchill wrote the post-WW2 German constitution he wrote it so that no party would ever get an absolute majority. There would have to be negotiation about forming government and about each piece of legislation; no ‘winner takes all’.  The Swiss constitution has 3 levels of government, all but 7 politicians are part-time and limited to 2 terms, with their jobs protected so that when they leave they go back to them full time. This means there are no party hierarchies to climb up and no jobs for the boys and girls at the end. Also there are quarterly referenda where if citizens get enough signatures they can overthrow even Federal government decisions.  This is what Australia did not copy when our constitution was written in 1900 (though it was considered). Our 1901 constitution was a heroic effort to stitch 6 squabbling colonies into a nation. It was not all wisdom for all time.

Anglo countries may have been early in creating democracy from autocratic kingdoms, but better things are now known and we need to move up and on.

3 January 2023

The US Constitution has many flaws. The most conspicuous being the ‘right to bear arms’ which is taken as the right for every citizen to carry guns around the place, with predictable consequences. There is also state controlled voting rights, which get fiddled and the right of elected governments to draw the electoral boundaries, a sure-fire recipe for dodgy electoral system.  It seems the US Supreme Court has managed to give itself a privileged position and now precedent cements this.

Of course the major problem is that the US Constitution  was made to be almost impossible to change so all these flaws are perpetuated, the latest problem being that Presidents can appoint Supreme Court judges for life and these judges now override the legislatures by saying the law is against the Constitution, as in the case of abortion.

How the US will fix this is not of academic interest. The Australian Constitution was not some document of all wisdom for all time; it was made with the overriding imperative to get the 6 colonies into one country.  All the power except marriage, tax and foreign policy was given to the States.  Looking at how Australia works in practice, one would not even guess this. We have uniform laws only because the state Ministers work out ‘template legislation’ and all State Parliaments pass it unamended.  About a third of all State legislation and certainly the most important stuff it this, with the States Parliaments serving as very expensive rubber stamps.

Now we have major constitutional changes suggested, a Voice to Parliament for Aboriginal people and removing the English monarch of head of State and creation of a Republic.

It would be better if there were some other changes also.  My favourite would be to move towards proportional representation and to allow citizens referenda to override Parliaments, and to limit the terms of Parliament so that political party hierarchies could not have such significance. This would be a move to more of Swiss-style constitution, as was suggested but discarded as it was not Anglo in 1899 at the Constitutional discussions then. The German constitution, which was written by Winston Churchill to ensure that no single party could ever have a majority, or even the changes in the NZ voting system which made it unlikely could, also be considered.  We have to recognise that we have the same problem as the USA, a fossilised constitution that needs significant change. It is ridiculous that we do not have the confidence even to talk about this. Change is not easy, but that is hardly the point.  Are we inferior to our great- or great-great-grandfathers that we cannot plan our future?   

US Constitution’s flaws on show

Nick Bryant SMH Columnist, 3 January 2023

A plan by the probable next US House Speaker to read the Constitution aloud could have unforeseen consequences.

For more than a quarter of a century, American politics has doubled as a civics lesson from hell. The Clinton years introduced us to the impeachment process, something not witnessed since the mid-19th century. The disputed 2000 election reminded us of the vagaries of the Electoral College and revealed how the Supreme Court could intervene to determine the outcome of a presidential election – who knew? The January 6 hearings, which culminated in the first-ever referral of a former president to the Justice Department for criminal prosecution, served both as a primetime crime drama and a tutorial in constitutional law.

To mark the opening of the 118th Congress today, the Republican Party intends to conduct its own teachable moment. If he wins the House Speakership – a contest that looks like it will provide a lesson in the chaotic state of the modern-day GOP – the Republican leader Kevin McCarthy intends to read in its entirety the US Constitution on the floor of the House of Representatives.

This ritual will border on the liturgical. The Constitution, despite Donald Trump’s recent threat to terminate it, has taken on a near Biblical status. Its framers are regarded as patron saints. Yet Americans who listen in may well be shocked to hear these portions of scripture take on a different meaning when placed in their rightful context.

No passage has been more misappropriated than the Second Amendment, which notes that ‘‘the right of the people to keep and bear arms, shall not be infringed’’. As people will hear, however, the primary focus of the founding fathers was the creation of a ‘‘well-regulated militia’’ rather than the firearms they would carry. The intention was to guard against a standing army, which in post-revolutionary America was seen as a tyrannical throwback to the days of British rule.

For almost 200 years, then, the Second Amendment was often referred to as the ‘‘lost amendment’’ because in an America that ended up creating a professional fighting force, the US military, it was considered obsolete. Not until 2008, following a decades-long propaganda campaign by the National Rifle Association to twist and falsify its meaning, did the conservative-leaning Supreme Court make the Second Amendment the constitutional basis for individual gun ownership.

Those who listen in might be surprised to hear how little the Constitution says about the Supreme Court, despite its omnipresence in modern politics. Nowhere does it state that the court should be the final arbiter of whether laws passed by Congress are legal. Judicial review, the ability to declare an act of Congress or presidential executive action unconstitutional, is a power that the Supreme Court granted itself in the early 19th century.

The irony is that the court’s hardline conservative justices are driven by a philosophy of jurisprudence known as originalism, which determines controversial rulings, such as the overturning of Roe v Wade, based on their interpretation of the original intent of the Constitution. Yet the founding fathers never intended the Supreme Court to hold such sway. ‘‘The judiciary is beyond comparison the weakest of the three departments of power,’’ wrote Alexander Hamilton. Thus this right-wing philosophy falls at the first historical hurdle. Originalism is the enemy of originalism.

Defenders of American democracy may also be disappointed by what they hear, for nowhere in the Constitution is there a positive assertion of the right to vote. The original intent of the founding fathers was that only white men of property should be enfranchised, although they left it for the states to decide.

Over the years, as the electorate expanded, voting rights came to be framed in a negative way. The 15th Amendment, which was ratified in 1870 after the Civil War, stated voting rights ‘‘shall not be denied’’ on account of ‘‘race, colour, or previous condition of servitude’’.

In the 1930s, the 19th Amendment finally decreed that women ‘‘shall not be denied’’ the vote. But voting has sometimes been called ‘‘the missing right’’ because the Constitution does not explicitly and positively spell it out.

‘‘We the People,’’ the rousing words in the preamble of the Constitution, were certainly never intended as a statement of great participatory or populist intent. Indeed, the whole point of the Constitution was to guard against the tyranny of the majority and what its aristocratic authors called an ‘‘excess of democracy’’.

Following the American Revolution, the Constitution was designed to be a counterrevolutionary text; what the Harvard historian Jill Lepore has called ‘‘a check on the revolution, a halt to its radicalism’’. Maybe that explains why Kevin McCarthy is so keen to read it out. The Republicans are a minority party increasingly reliant on the founding fathers’ minoritarian model of democracy.

They have lost the nationwide vote in seven out of the last eight presidential elections, but the Electoral College gives them a shot at the White House. The power granted by the framers to small states, which were allotted just as many senators as the most populous states, artificially inflates the Republican Party’s influence in the Senate. The original decision to allow states to determine voting qualifications has enabled Republican-controlled state legislatures to suppress the vote.

Hopefully, the reading of the Constitution will remind citizens of its flaws and how this American gospel is in desperate need of revision. But therein lies the constitutional catch-22. The founding fathers made it fiendishly difficult to amend.

Dr Nick Bryant is the author of When America Stopped Being Great: A History of the Present. Peter Hartcher is on leave.