The Fatal Flaws in US Democracy

As history’s most consequential demagogue before Trump said, in crossing the Rubicon two millennia ago, “The die is cast.” In less than a month, we Americans will know whether our nation will stay a democracy, or whether we will follow another demagogue on the long road to perdition.

The polls all say the same thing. It’s a coin toss. The chance of American constitutional democracy ending after 233 years is about fifty percent.

So it’s not too early to take stock. In fact, it may be too late. But better late than never.

Is this all just bad luck, some fatal accident, some cruel twist of fate? Or did our Founders, despite their best efforts, leave us with a fatally flawed structure of government with a sell-by date? Let's analyze.

One thing is clear above all: our Founders didn’t want another king. They wanted to get away from England’s King George III, who had made war on them for having the temerity to declare independence. They risked their lives, fortunes and ”sacred Honour” to duck one-man rule. But did they succeed?

At times, we Americans have dabbled with collective rule. Boards of directors rule our business corporations, which are now charged with many of the most important tasks of our civilization. They grow and distribute our food, build our homes and vehicles, build and repair our infrastructure, and increasingly run or provide the books, remote technology and other products for our education. The boards set general policies and can fire a CEO, but still the CEO rules day-to-day management, much like a king of old. And nearly all CEOs today are male.

A similar partial evolution occurred in our government. Members of our Cabinet have real power and make decisions. But they are always subject to review and reversal by the supreme alpha male. Worse yet, our Congress, which was supposed to check our president, has not only abdicated its Constitutional power to declare war. It has also degenerated into a puerile debating and performative society bent on blaming, shaming, scaring and blocking any forward motion. Just months ago, it could barely keep the government running for less than half a year.

Interestingly, two of the US’ chief rivals, China and Iran, once made further progress. Before Xi Jinping declared himself, in effect, China’s most recent emperor, a committee of nine ruled all of China. Every member of that committee was an experienced and seasoned leader of some aspect or region of China. Each had been elected by all or part of the Chinese Communist Party, with some eighty million members. Most members had known and worked with each other for decades. The successors of China’s two supreme leaders had to be nominated by members of this committee from among their number, and each of those top leaders had to have served an “apprenticeship” of ten years (two five-year plans) on that committee before ascending to one of the top two posts, President or Premier.

I once thought this system was a signal advance over most governments in human history, and I so wrote. What better system than to have top leaders chosen by responsible, if lesser, leaders who have known and worked with the candidates for decades? How could we compare our current American system, in which disinterested, inattentive, disgusted and lukewarm voters in seven “battleground” states will choose our next supreme leader based on thirty-second video ads, or on “news” as propaganda, manufactured for profit by people working for and under a corporate alpha-male leader like Rupert Murdoch?

If Trump wins next month, I will go to my grave believing that Murdoch and Fox will have killed our democracy, in cold blood, for money and for power. Our catastrophic future history on offer now will not have differed much from a younger, stronger, alpha-male contender deposing the current clan leader by personal combat on the African savannah. Is this the best way to run a modern nation of 338 million people?

But I digress. The second possible exemplar of collective modern rule, oddly enough, is Iran. As far as anyone outside Iran can tell, it now has two supreme leaders: (1) the current top Ayatollah, now Ali Khamenei, 84 years old, and (2) the elected president, now Masoud Pezeshkian, 68 years old and a member of Iran’s ethnically Kurdish minority. AFAIK, Iran has no written Constitution, so the relationship between the two leaders depends on their respective vitality, connections and political skill. Perhaps it’s an unstable system, and it may produce some surprises; but I can’t shake the feeling that, even in this odd configuration, two heads are better than one, especially when the elder one is 84.

The point of discussing China and Iran is not to praise them. Both are hardly exemplars of good governance, let alone democracy. The point is to show that social evolution can produce random changes for the better, just as do the random mutations (“copying errors”) in our biological DNA, which are the basis of our biological evolution.

The point is also to show that those random changes, even if beneficial, can fade away and disappear unless recognized as having value and deliberately preserved. Xi’s declaring himself autocrat, thereby destroying the collective power of China’s once-ruling committee, may have been one of the saddest steps backward in humanity’s collective social-evolutionary history.

The deeper message is that there is no simple answer to improving human social organization. Anything that purports to preserve the status quo indefinitely will inevitably fail. And that is precisely how our Founders failed us.

They drafted our Constitution as if they were Moses on the Mount. They made amendment so hard as to engrave the status quo perpetually in stone. So the tough compromise between slave and free states, which produced our Electoral College, our permanently malapportioned Senate, and such things as the runaway filibuster [Search linked source for second occurrence of “broken”], are now likely to end with a coup de grace of our entire democracy. The end could come early next year, with the inauguration of a grossly unfit pathological narcissist in the mode of ancient Rome’s “mad emperors” Nero, Caligula and Commodus—all rolled into one.

A nation able to evolve into a real democracy, in which the nationwide popular vote elected its highest leader, would never have incurred this risk. In fact, the narcissist would never have been president, even once; Hillary Clinton would have instead.

So why do we Americans, after all our industrial and commercial successes and self-proclaimed “exceptionalism,” seem about to fail while Britain, though faded, still soldiers on, despite the insanity of Brexit? For answers, we should look to adaptability and evolution. Seemingly random changes that enhance survival succeed and persist. So it is with societies—a fact we have yet to recognize and our Founders most certainly did not.

As far as we know, ancient Rome’s democracy lasted only a few hundred years, then turned to empire and eventually fell. Similarly, the democratic phases of ancient Athens and Sparta lasted only a few centuries. Our American constitutional democracy has lasted only 233 years and already seems poised to fail. If it falls, its demise will have been directly traceable to flaws in our Constitution—a foundational document that sought to compromise, for all time, wildly conflicting visions of human freedom and brutal human bondage.

In contrast, England’s democracy has persisted for 809 years since the first Magna Carta in 1215. Its secret is a system without a written constitution. Its laws and government continuously practice the art of adaptation, as wise leaders come and go but consistently improve the whole with time and experience. None of them is constrained by an outmoded written document revered as Scripture; experience, wisdom and common sense are their guides.

For me, the gem in Britain’s crown of adaptive government is its system of “common law.” We Americans have it, too. But for most of our short history, we have been systematically replacing the common law with overly detailed statutes that, in their unnecessary and sometimes counterproductive specificity, futilely try to control the nuances of a future that no one can foresee.

England’s common law does nothing of the kind. It hasn’t for most of those eight centuries. Instead, it lets wise and circumspect judges decide each legal case that comes before them in the narrowest possible way. Collectively, those decisions control, as “case law,” future decisions. But they do so only to the extent that future decisions rest on the same or closely analogous facts, and only to the extent future facts do not (rarely) justify reversing earlier precedent. Thus, British common law evolves the same way that our species has and that most of us do throughout our lives, through trial and error, step by step, making limited decisions under the circumstances directly before us, ever informed by present reality.

English “common law” is thus an adaptive tapestry of individual decisions, each made in response to specific, detailed facts by an experienced, wise, morally grounded and empathetic judge. It’s both a modern and longstanding exercise in the evolution of human society. It changes and adapts as history and human circumstances change.

As far as I know, it’s the wisest and most effective form of human governance ever invented. It befits an island nation, free from most human conquest, whose miserable weather motivated extraordinary devotion to reading and thinking. Not for nothing did the Brits produce three of the four greatest thinkers in human history: Isaac Newton, Adam Smith, and Charles Darwin (the fourth being Albert Einstein, a German Jew).

As for the common law, so for the entire British system of government. It has no written constitution. It does not attempt to predict, restrict or control the future. It merely provides the best wisdom available to handle and resolve disputes and solve social problems arising now. It leaves future decisions and future evolution where they belong: in the future. With this foundation, English democracy has evolved, mostly peacefully, from a strong monarchy, through a two-House parliamentary democracy, to the present system in which the House of Lords is a mostly powerless (and harmless) appendage to the House of Commons.

So what should we Americans do? First, we have to survive the current division. The only practical way to do that is to elect Kamala Harris president. If we cannot manage that, our short experiment in democracy will likely end soon and ignominiously. Even if it survives, it will have reduced chance for success, hobbled as it is by both an outmoded Supreme Scripture and a Supreme Court that won’t hesitate to make up its own statutes, on subjects like presidential immunity, out of whole cloth.

Even if we survive this cusp, the same organizational impediments will continue to hobble us. Prominent among them will be direct primary elections. There true believers fired with partisan zeal constrain voters’ choices of “democratic” representatives in the general election, making rule by wise leaders picked by their peers for experience and wisdom virtually impossible.

One of the greatest American judges never to reach the Supreme Court was Learned Hand, of the Second Circuit Court of Appeals in New York. He once ended a copyright decision with the words, “Our Constitution is not a straitjacket, but a charter for a living people.”

Unfortunately, this optimistic claim was wrong. Not only has our Constitution become a straitjacket. Our very Supreme Court has instructed us to interpret it with the mindset prevailing in 1791, when it was ratified. The current Court thus forces us to look back over two centuries to decide, among other things, how to handle reproductive medicine and prevent public massacres using automatic weapons that no one could even imagine in 1791. It would be hard to invent another judicial philosophy so regressive and so poorly adaptive.

So if I were to write advice for a time capsule, to instruct future generations how to avoid a third debacle like the Fall of Rome, it would be far shorter than our broken Constitution:

Don’t try to outdo Moses and write legal prescriptions for all time. Don’t try to “put it all in writing,” because that will discourage evolutionary change. Trust your leaders, but be sure they are wise and of good character; maybe test them, using modern scientific methods of evaluation, to weed out the dullards, the grifters and the psychopaths, before they first run for office. [Search in linked source for “Enlightened”.]

Don’t specify too much and dive into too much detail in statutes; leave details to expert regulators, whose work is easier to change. Don’t try to predict the future, which, as famed baseball catcher Yogi Berra once said, is hard to do. And don’t fear the “administrative state.” A society with details managed by experts is inevitable and will become more so as human knowledge and expertise continue to expand far beyond the reach of any single mind.

Instead, form the institutions of your society with tested general principles, among them complete parliamentary democracy, without a trace of minority rule and without minority or individual vetoes. Rely on a continuous flow of highly educated men and women trained in realism and critical thinking, indoctrinated in humility, and infused with a zeal to put other people, their nation and their species first, in all their thinking. Make sure your decision makers—most importantly your judges—come from this group and decide as many lawsuits as possible based on the common law.

Put nothing vital in the hands of a single leader or a small group. Have your institutions check and balance each other, but not so much as to create long-lasting divisions like the ones that destroyed American democracy. Have all vital executive decisions made by a medium sized committee—about a dozen or so—by majority vote. And make sure that committee is fully representative your society, including the majority gender: women.

Most important of all: recognize and tolerate no absolutes. Free speech is important, but it cannot be allowed to devolve into license to promulgate lies and propaganda, let alone by the richest and most powerful corporations and people, who will only peretuate their oligarchy. Just so, self-defense should be a right, but not one that licenses weapons of war on ordinary streets and in ordinary homes. Otherwise, the AK-47 will be just the beginning of horror in random human massacres, as drones with AI inevitably evolve in deadliness, evasiveness and accuracy. Make sure that the government you found recognizes reasonable exceptions to every rule. (That’s yet another reason to let evolving wisdom, not absolute nostrums, prevail.)

* * *

Evolution created us humans. But our biological evolution does not run nearly fast enough to save us from our global and continental divisions, our nuclear standoffs, or the planetary heating that our now-deliberate use of fossil fuels is accelerating.

Only our deliberate, conscious and rapid social evolution can save us. That will require laws, institutions and a social structure that, above all, are flexible and adaptive and open to wisdom, empathy and continuing constructive change. We Americans do not now have such a social structure because our Founders had an unrealistic conceit: that they could create a specific plan for the ages in a few pages. Even Yogi Berra was smart enough not to believe that! If Trump wins in November, our Founders will have failed decisively and perhaps irrevocably. Then we need no longer revere them as gods.

For societies as for individuals, the most important lesson of our current agony is flexibility. The absence of a written constitution did not stop either England or ancient Rome from becoming the two longest-lived democracies in human history. In fact, it helped.

If American democracy ends soon, we will have proved conclusively that “getting it all in writing” is a societal evolutionary disadvantage. Without the ball and chain of our written Constitution, we could have reformed our government, after our brutal Civil War, into something like a working parliamentary democracy, with representatives evenly apportioned according to population.

So our human species must take the lesson that trying to stop social evolution is a fool’s errand. No immutable basic law or tablet from the mount will us survive, let alone thrive. Only continuing wisdom and adaptability will do that.

As for actual Scripture, its historical and present use by divergent cults as excuses for brutal wars continues and expands today. That terrible blot on our species’ history shows no sign of abating. Jesus’ advice to “Love they enemy” and “love thy neighbor as thyself” is worth preserving, if only we could hear and follow it among all the scriptural nonsense and ideological noise. Otherwise, we Americans, like the rest of our species, need to stay as flexible and adaptive as possible, subject only to time-tested, hortatory principles like those.


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