There’s a famous quotation of Winston Churchill’s: “Democracy is the worst form of government except for all the others that have been tried.” I wouldn't argue with that (although I'm not as sure as I used to be) but it still is worthwhile thinking about some of our problems.
First, there are a big batch of problems centering around the election process.
How should the candidates be selected? We have a primary process which many people feel is very unrepresentative and certainly seems to come up with some dillys. We used to let a few party leaders in a “smoky room” pick the nominees. We’ve changed that, but maybe that was better than what we came up with.
Financing determines, or at least has an overwhelming effect, on the outcome of many elections. We seem to be unable to find an effective way to eliminate, or even reduce, the effects of different levels of financing for different candidates. We keep fiddling with laws, but nothing seems to work. I have a germ of an idea there which I'll cover in another blog.
It is very hard to get voters to make a decision based on policy differences among the candidates rather than superficial differences or unproved criticisms. It seems like the only people dumber than the candidates are the voters. The cleverest, or most underhanded, campaign manager finds a way to use soundbites on TV to get votes for his candidate. Somebody told Adlai Stevenson “All the thinking people are with you.” He said “That’s not enough. I need a majority.” This was recognized as a potential problem back in the days of the founders. A recent book “The Myth of the Rational Voter” discusses the effects of voter biases and special interest groups in some detail but doesn't indicate how to improve the situation.
For selecting the president, we use an electoral college with a 200 year old procedure which would never be considered in a modern democracy. Several states, Maryland being the first, have passed legislation which would effectively eliminate the electoral college. The legislation places a requirement on their electoral college voters to vote for whichever candidate gets the most votes nationally after enough other states pass the same requirement so that the total electoral votes of all states with this law would make a majority in the electoral college. In effect, this is a way to go to a popular vote election without requiring a Constitutional amendment.
In accordance with the Constitution, states set the eligibility rules and procedures to be used in all national elections.. This leads to a variety of restrictions on the electorate, subject to the limitations of the 14th and 15th Amendments. It also leads to quite different procedures with respect to recounts, etc. in each state. This situation led to the Supreme Court becoming the deciding venue for the 2000 election in a decision which came close to a Constitutional crisis.
Even the mechanics of voting are still very controversial. Paper ballots, optical scanners, punch cards, touch screens, we can’t seem to agree on an effective method. All of these issues lead to the question of whether we shouldn’t have some kind of national election policy to standardize procedures. After 200 years, you'd think we could do better.
.A second set of problems centers on the desire to protect minority rights.
The basic protections are those directly established and mentioned in the Constitution (Bill of Rights). The Supreme Court is the most important institution in interpreting the Constitution and determining the meaning of laws. But that is not as straightforward as it sounds. There have been lots of arguments over how the constitution should be interpreted, not least on the Court itself, and sometimes interpretations change. A major question is whether the Court should apply the "original intent of the founders" or try to find the real intent in terms of changed conditions.
For example, the Court recently announced a decision on the meaning of the second amendment. They spent their time parsing that very short sentence, arguing about the meaning and significance of “militia”, and probably pretty much ignoring the fact that both the world and weapons are very different now than they were 250 years ago.
The most straightforward way to get at that issue, it seems to me, would be to have a constitutional convention to update the constitution. Procedures to do that are provided in the Constitution. Modern technology would be used to produce a complete, up-to-date record of all the discussions involved in writing, and then confirming, the new constitution. We would know just what it meant. That would eliminate all the unproductive arguments about original intent. And we could provide clear-cut statements about things like a right-to-privacy which are now found in rather arcane places like the 14th amendment or the Commerce clause.
Some might argue that it’s too hard to write and adopt a constitution so we shouldn’t take the risk. But if that’s the case, why are we going around the world telling countries with histories of violence and little or no history of democratic institutions that they should do exactly that?
A third group of problems is a set of miscellaneous, but very basic issues not really settled even after more than 200 years of existence as a democracy.
One of the biggest of these is uncertainty in the relative powers of Executive and Congress to declare war. We have yet to find a politically feasible way to ensure that the Congress has the fundamental responsibility as specified in the Constitution. Do we still agree that Congress should have that power? If so, how should it be implemented?
A second issue relates to the responsibility the courts have to interpret the meaning and constitutionality of laws passed by the legislature. In the process of doing that interpreting some people think they overstep and assume legislative responsibilities, i.e., become “activist” judges. Do we need to define the authority of the courts more clearly?
The Executive branch has the responsibility for seeing that laws are carried out properly, but the Congress has an “oversight” role. What is the boundary between those? When can the Executive refuse to cooperate in investigations? Can the Executive issue “signing statements” to limit the extent of legislation passed by Congress? Signing statements were used by Bush for more than twice the total number of applications by all previous presidents.
One of the processes which seems nearly “busted” is that of nominating federal judges, particularly for the Supreme Court. The Senate is charged with an “advise and consent” responsibility, but in recent years that’s become very partisan and doesn’t seem to really serve its intended purpose.
Another major problem is the ambiguity in the split of authority between the states and federal government. Much of the federal law in this boundary area is based on the rather thin argument that the constitution gives Congress the right to regulate interstate commerce. A recent Supreme Court case on whether congress had the right to forbid guns within a 1000 feet of schools hung on the issue of whether this was interstate commerce or not. The law was thrown out because of the decision that having a gun didn’t depend on interstate sales. Can you imagine a decision on whether we want guns in schools in this day and age depending on that sort of argument? We need to make the split of authority and responsibility much clearer.
Finally, a somewhat more general question. “How should a democracy function when the country is fairly evenly divided so that the "minority" is actually very large, say 49%? In that situation the question is not so much that of protecting "rights" of the minority as it is just how should decisions get made. Fairly often this situation results in a stalemate which we attribute to a "partisan" Congress, but is really the result of the even split in views of the country. I think this pretty well describes the U. S. since 2000, but is common all over the world. For example, in Palestine Hamas and Fatah, in Mexico- two main parties, in Algeria the election of an Islamic party which was subverted by a coup, and in Pakistan- military party vs civilian.
The U. S. seems to get locked up (mostly by the senate) with divisions not nearly as close as 51-49. I think it is quite possible to conceive of having major changes in the functioning of our government when we are in such condition. One of the most obvious is to make the period between elections smaller when this situation obtains.
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