American democracy has a number of structural flaws. Things which might have made sense centuries ago no longer do and need to be rethought. High among these are: the anti-majoritarian senate and electoral college; too many checks on power; federal judges appointed for life. Let’s start with judges.

Judges for life

The terrifying prospect of Donald Trump appointing his 3rd Supreme Court Judge after the death of Ruth Bader Ginsberg – God rest her soul – comes as South African Constitutional Court Chief Justice Mogoeng Mogoeng nears the end of his 10 year term.

In America, federal judges serve for life (or until they retire or are removed from office). Federal judges, not just the supreme court but all of them, have enormous power to shape democracy and ordinary people’s lives through their power to interpret the law.

The Republicans have understood this power for decades, following a consistent strategy of ensuring judges are appointed which share their worldview: including money in politics, limiting abortion, limiting efforts to combat discrimination, racial equity, limiting voting rights, protecting minority rule enabled by gerrymandering and other dark arts (such as voter suppression) among many other issues.

Should a President be able to put in place judges who can shape society for 30 years or more? 20-25 years beyond that President’s time in office? I think not. That is too much power, which needs checking. The US should take a page from SA’s democracy and limit federal judges to 10 year terms.

Anti-majoritarianism

The composition of the legislature was a compromise between two ideas: representation of people and representation of states. As the sovereign states negotiated the terms of federation, particularly the smaller & less populous states pushed for equal representation of states, finding expression in the Senate and electoral college constructs, but especially the Senate.

Thus Wyoming, with 600 thousand people has the same amount of Senators (two), as California with 40 million people. Effectively, America now has minority rule at national executive and legislative level. Trump was elected President despite 3 million more Americans voting for Hillary Clinton because of the electoral college. A majority of Americans are represented by just 18 senators.

This minority rule is fundamentally undemocratic, as explained by in this article by the excellent Jamelle Bouie, formerly of Slate, now at the New York Times. A minority of the country can hold enormous sway over cabinet and judicial appointments, and public policy writ large, as discussed below.

Too many checks on power

America was formed by revolutionaries and the heirs thereof, who had thrown off the yoke of their colonial master, Britain. Core to their political experience was being subject to the whims of a despot with almost absolute power, King George III. Thus they consciously designed checks and balances at the core of the new democracy.

One of these checks was the three branches in government, indeed an elegant design. The problem comes in where in the US, unlike in a parliamentary system, the executive and legislature can be held by different parties. Particularly when the party in power in the legislature sets out to oppose the executive’s agenda, gridlock can ensue as the executive can only pass major legislation if it has a filibuster-proof majority (two-thirds, a sky-high threshold for legislation). Plus the leaders of the legislature can use their agenda-setting and presiding power to great effect.

Obama’s presidency was illustrative. The American people elected Barack Obama, who spelled out a particular domestic policy vision. He was largely unable to implement that vision – expanding access to healthcare the notable exception – because the Democrats controlled Congress for only 2 of his 8 years in office. The end result is frustrating for everyone.

The framer’s attempts to check power were too successful for modern governance. You basically can’t implement big, ambitious policy changes in the US. There are too many ways to limit big changes baked into the system. Whether it’s social security reform, healthcare, infrastructure, immigration, decarbonisation. This is no longer appropriate in a rapidly changing world with big social and environmental challenges, and a big country of 330 million people.

I much prefer the British parliamentary system. You win, and implement the agenda you ran on. If the country doesn’t like your agenda, they toss you out in a few years and someone else gets a turn to govern. What’s the point of being able to only half govern?

 
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