20 December, 2000 (Revised February, 2001)
The puffs of greyish smoke that have at last emerged from the chimney of the Florida electoral system to indicate that George Bush will probably become the 43rd President of the United States of America prompts me to make a few comments about the relative merits and demerits of some so-called "democratic" systems of government. I shall do this in the light of my firm conviction that maintenance of the liberty of the responsible human individual is the greatest good that may be hoped for from any system of government, "democratic" or not.
Every four years, the people of the United States of America have the opportunity to participate in the election of a President. The functions of the President appear to be two-fold: to represent the Nation as a sort of ceremonial figurehead and to be the Head of the Federal Government or "Administration". In the latter capacity, the President chooses from among eligible private individuals those he is prepared to entrust with various high offices of State as well as Ambassadors to foreign countries. Apart from the Vice-President (who was chosen by the successful Presidential candidate to be his "running mate" before the election) all the other members of the Federal Government are appointed by the President. Although the President's nominees for high office must be approved by the Senate, the President for four years wields the highest power in the land which is to hire and fire members of the government and its representatives overseas.
Anxious to discourage abuse of power by the President, the wise men who drafted the Constitution of the United States built in certain safeguards to protect the liberties of the people. For a President to be elected, it is not sufficient to obtain a majority of the aggregate votes cast in the election. The United States is, as the name implies, a Federation of 50 individual states, each of which jealously guards its own powers vis-ŕ-vis those of the Federal Administration. So the President is in fact elected by the votes of electors in an Electoral College to which each state appoints a certain number of electors.
The people of each state are represented in Congress by two senators and a number of representatives proportional to the population of the state. Thus the most populous State, California, currently has 52 representatives in the House of Representatives and Vermont has three. Florida has 25. The Electoral College comprises a number of electors from each state equal to the total of its Representatives plus its two Congressmen. These electors are chosen from among competent private individuals who do not hold any public office and are thought worthy to be trusted to make a wise choice from among the available candidates for President (and Vice-President). There is no compulsion for all members of a state's delegation to vote the same way though in practice they usually do, and usually in accordance with the majority popular vote in the state in question. The individual who gains an overall majority of the aggregate votes in all the state electoral colleges is duly nominated as the next President of the United States, with his running mate as Vice-President. In the recent close-run election, the 25 votes of the Florida College were sufficient to make the difference between one candidate and his only serious rival. Hence the lengthy and acrimonious struggle between the Republican and Democratic Parties and between the Florida Supreme Court and the Federal Supreme Court. This struggle has done nothing to enhance the dignity of politicians, of the law, or of the legal profession.
It will be seen that the Electoral College is an institution designed to minimise the risk of appointing someone who is nothing more than a popular demagogue a risk which in modern times is greatly magnified by ubiquitous television.
The Constitution makes three important provisions for protection against a tyrannical President once in office.
Recognising that the best preventive of a central tyranny is provincial power, the individual states have the widest possible powers over such important matters as education and banking. They have their own criminal code and their own courts. In some matters, including the conduct of elections, the state legislatures are superior to any federal legislature or court, so that in these matters the President has no powers over the residents of the state.
Once in office, the President's exercise of federal power is further checked by the Senate and House of Representatives, who have the power to block any proposed legislation (including budgetary proposals), and may even impeach a President who offends against some provision of the Constitution as interpreted by judiciary.
Finally, there is the Supreme Court itself, which exists to interpret the Constitution in any case in which the Constitutional rights of an individual citizen of whatever state are claimed to have been denied.
From the point of view of a freedom-loving outsider, the United States Constitution seems totally admirable in theory: but the Florida experience suggests that it no longer works as originally intended. It seems to have been vitiated primarily by the invention of the political party, a device which enables power-hungry self-important demagogues to gain political power by pseudo-democratic means, particularly with the aid of television. Party politicians conspire to get their "own man" nominated as a Presidential candidate in the expectation of future favours, and even the supposedly independent judges of the Supreme Court itself appear to be no longer immune to party political preference. Thus the checks and balances built into the Constitution are increasingly in danger of being short-circuited because of the fundamental weakness inherent in any system of selection that relies solely upon a form of popular voting.
It may also be argued that the ultimate sanction, the limitation of a Presidential term to four years, is a high price to pay in terms of the hiatus in both domestic and foreign policy which inevitably attends a change in Administration and the damage to the morale of a Nation periodically divided against itself by emotive inter-party strife.
Because it is extremely difficult to draft a Constitution which can unambiguously spell out "rights" which can be deemed good for all time, it seems to this outsider that interpretation of a written Constitution has become a happy hunting ground for lawyers who may be more concerned with lining their own pockets than with upholding the rights of individuals, and who have made litigation and re-interpretation something of a national preoccupation.
Although still nominally a "monarchy", the Monarch has been stripped of governmental powers and retains only the ceremonial and representational functions of Head of State. Nevertheless, the Monarchy confers the incalculable benefit of keeping the Head of State above political controversy and obviating the need for a confrontational Presidential election every so often.
Also, unlike the United States where the President appoints the members of the Administration, the United Kingdom has what to all intents and purposes amounts to a permanent administration in the form of a Civil Service.
Sadly, the Monarch's subjects now have nothing like the protection from tyranny that is still enjoyed by their counterparts in the United States. This relative weakness arises principally from the "democratic" system whereby a Parliament consisting of members who are supposed to represent the people against the excesses of government in effect becomes the government when any single political party contrives to secure too large a majority in the House of Commons.
After a General Election in the UK, the leader of the Party with a majority of seats in the House of Commons becomes the Prime Minister, and immediately proceeds to behave as if he (or she) were a President. A defeated Prime Minister has twenty-four hours to vacate Number 10 Downing Street, and the Leader of the victorious Party moves in. The Prime Minister appoints the most important members of his Cabinet from among his loyal elected Members of Parliament. This effectively seduces the majority of members of all the main parties from fulfilling their supposed functions as representatives of the people who elected them, and reduces them to the status of robots at the disposal of the leaders of their parties. Thus the Prime Minister is in effect an elected dictator: recent experience in the UK reveals how a lightweight demagogue who looks good on television can usurp the highest power in the land.
As the Prime Minister's choice of Cabinet Ministers is limited to members of his own Party, there is likely to be a shortage of people with the necessary qualities; and it is rare indeed for a Minister of the Crown to be able to take effective charge of the generally more competent and able senior permanent Civil Servants who actually run the Minister's Department.
This unsatisfactory situation has been further vitiated by the present Government who have devolved certain powers to a Parliament in Scotland, an Assembly in Wales, and something or other in Northern Ireland, without establishing a corresponding body in England. This has introduced irrational complications into the operation of a United Kingdom Parliament. It has the effect of giving the Parliamentary representatives of the people of Scotland, Wales and Northern Ireland political advantages over those of England, which is by far the most populous and economically significant part of the Kingdom. Apart from this unsatisfactory arrangement, there is no equivalent in the UK to the individual states in the American Federation. County, City, Town and District Councils have been progressively stripped of significant former powers which have been concentrated at Westminster. Thus a Cabinet Minister can ride roughshod over the wishes of local electors in such matters as local housing density; and matters which any sensible person would consider "parochial" have been taken over by ministers of central government with little grasp of local complications and with consequent detriment to the residents of the "parish". Nowhere is this seen more clearly than in the nationalised health and education industries of which the politicians of all parties claim to be proud, but which are in fact black holes into which the tax-payer has to pour ever-increasing sums without any obvious benefits that could not be obtained far more cost-effectively by popular voluntary local co-operation.
In the UK, there is at present nothing analogous to the Supreme Court to protect the liberties of the individual subject against infringement by the agents of the state (which include those concerned with health and education). Until this year, instead of a Bill of Rights, the English subject's interests were protected by the common law which developed over the centuries on the pragmatic basis that a right exists only if it can be enforced. The principal safeguard was habeas corpus, whereby if a person is detained in custody, he or someone acting on his behalf, may apply to a court for a writ of habeas corpus (from the Latin 'you may have the body') compelling the custodian to bring the detained person before the court and show that there is just cause for the detention. Other safeguards were the right of an accused person to trial before a jury of his peers, and the principle of "double jeopardy" whereby a person could not be tried more than once for the same offence. All these safeguards are now themselves in jeopardy from a government which apparently holds personal liberty in very low esteem, and from directives of the European Union which provide a tyrannical government with immoral support. A Human Rights Act has now passed into law, and we may confidently expect an escalation of the trend towards inter-personal litigation and claims for damages which seem to be the norm in the United States. Rich people will be able to uphold their rights against those of the poor by appealing to progressively higher courts whenever the decision of a lower court goes against them; recourse to ordinary justice will become hideously expensive; trial by jury will be limited on grounds of cost; lawyers will sink even lower in popular esteem than they are already; and the personal liberty of the impecunious man or woman will hang by a slender thread. One glimmer of light is that, paradoxically, EU Human Rights legislation looks likely to have the unintended effect of rendering some oppressive Parliamentary legislation illegal.
If a camel is a horse designed by a committee, the European Union seems to be a monster arising accidentally from political ambition and rivalry. The main objective currently seems to be to cobble together several sovereign European nation states into a "Super Power" to rival the United States.
When it was formed fifty-odd years ago, it was understandable that the peoples of Western Europe, tired of war, should come to some arrangement about trading freely among themselves in the hope that this would in time help them to forget old feuds. The rapid onset of globalisation has extended the logic of free trade to the entire world, and made the EU an anachronism. Nevertheless, the political leaders of its member states still get together from time to time, fight like rats in a sack, and go home, each claiming to have won some sort of victory over the other members. It later becomes apparent that the only effect has been to remove powers from the member states to the European Commission whose unelected and largely unaccountable members dream up some new powers for themselves.
There is a European Parliament for which the member states hold an election from time to time. These elections are generally fought (I use the word advisedly) along domestic party lines. The result is a hugely expensive but generally ineffective European Assembly, attendance at which entitles the elected MEPs to generous salaries and expense accounts.
In direct contrast to the United States, where the powers of the individual states are guaranteed by the Constitution, the European Union is developing along dictatorial totalitarian lines reminiscent of the former Soviet Union. The Commission commands, and member states obey. This goes against the grain of all freedom-loving people to such an extent that even a single currency is unlikely to hold the hitherto reluctantly consenting states together for long without a serious bust-up.
The threat to individual liberty under all three systems naturally arises from the ambitious desires of some individuals to lord it over the others. This is a natural phenomenon, and we must expect that it will be an enduring human idiosyncrasy. However, it cannot succeed without a vehicle the political party and it is the political party that must be held in check. As the vehicle draws its power from the ballot box, there must be some counterbalancing force which does not rely on the ballot box that can act as a brake upon the party in the interests of the individual.
The other threat to liberty arises from the flawed concept of "human rights" and the difficulty of defining reasonable rights clearly enough to be enforced many years into the future without continuous amendment. The spread of Human Rights legislation looks like making legal practice the most lucrative industry in the Western world. Far better to recognise that there are no human rights, only privileges and responsibilities; and that the people nearest the scene of the crime are better placed to adjudicate on matters of relative guilt or innocence and appropriate punishment than the airy-fairy idealists of "higher", and progessively more remote, courts, whose judgments sometimes appear quixotic to the folk on the ground. This would in time tend to make every individual person effectively self-governing, and the most local competent court would be the highest.
My personal preference would be for a system very like that of the United States, but with an hereditary Monarch, trained from youth to be an attentive servant of his or her subjects, wielding lifelong executive power with the aid of a permanent Civil Service, instead of an elected President and an Administration appointed by the President.
In the United States, this would remove the need for holding divisive Presidential elections and avoid drastic changes in policy as one administration takes over from another. As there would be no Presidential candidates to bribe state politicians with "pork barrel" promises, the political party would automatically become less attractive as a means to power, and state elections could be conducted merely as a means of appointing independent-minded persons to represent their people in Congress and oppose any tendency to tyranny on the part of the Monarch. Together with a modern press and the Internet, the climate could be made extremely unfavourable to tyrants. The Bill of Rights and the libertarian role of the Federal Supreme Court might usefully be abandoned in favour of regulation by local equivalents of the English magistrates.
In the United Kingdom, similar considerations apply. Restoring executive power and command of the Civil Service to the Monarch would have the effect of reconstituting an elected Parliament as a truly representative body, all of whose members would comprise Her Majesty's Loyal Opposition, and all of whom could be truly representative of their constituents. This would at a stroke destroy the powers of patronage of Party leaders and automatically compel the most ardent would-be dictators to seek their fortunes elsewhere.
It would also be necessary to restore local powers to counties, districts, parishes, and magistrates' courts, and to have these powers protected in perpetuity by a written Constitution as in the United States. Litigation should be dealt with by the most local court competent to deal with the dispute in question, and the right of appeal to a more remote, if theoretically "higher" court, should be abandoned.
In the European Union, the powers reserved by each individual state should be enshrined in a Treaty which could be diminished only by obtaining a two-thirds majority in a referendum of the people of the state in question. The politicians of the members states could then fight among themselves to their hearts' content without doing any harm to the people back home.
Instead of a President elected by nobody, the EU Commission might be presided over by an Unholy Roman Emperor, periodically appointed by random robotic selection from a database of all adult members of the countries signing up to the Euro. As with a Monarchy, this would ensure that the vagaries of the ballot box were mitigated by a complementary force which would tend to put a stabilising restraint on the stampede towards totalitarianism.
Readers may think that some of the foregoing paragraphs were written with tongue in cheek, and there may be just a grain of truth in that. But I trust that they draw attention to topics which require serious and urgent consideration if the liberty of the ordinary responsible human being is not to suffer serious erosion among the self-proclaimed "leaders" of the so-called "developed" world.