A Living Document

Is the Death of Democracy

Last week, the Legislative Assembly of El Salvador voted to amend its constitution to allow the indefinite reelection of the president. The constitution had previously not allowed a president to succeed himself. The constitution of El Salvador is relatively easily to amend, requiring a simple majority vote in the legislative assembly in one session and a super-majority vote in the subsequent session to make the change permanent. The current president of El Salvador, Nayib Bukele, defended the change saying that 90% of the democracies around the world allow the indefinite reelection of a president (although he neglected to mention that only two countries in Latin America allow the indefinite reelection of a president, Venezuela and Nicaragua).

Bukele, also known as the “world’s coolest dictator,” had previously been reelected by resigning from his presidency prior to his second candidacy saying that because he had resigned he was not succeeding himself. The Salvador Supreme court agreed. Of course, this was the new Supreme Court filled with justices nominated by Señor Bukele after he had fired all the justices of the prior court. So the new amendment now allows Señor Bukele to be reelected indefinitely so he will not have to use subterfuge to get his way (although Article 248 of the constitution of El Salvador says, “Under no circumstances, may the articles of this Constitution, which refer to the form and system of government, to the territory of the Republic, and to the principle that a President cannot succeed himself be amended.”

Most of the people of El Salvador support Señor Bukele’s reelection. He won 85% of the vote in his first reelection and his New Ideas party controls 57 of the 60 seats in the legislative assembly. His popularity and that of his political party is due to his crackdown on gang violence. The murder rate per 100,000 inhabitants of 106.3 was the worst in the world in 2015 and was still at 53.1 despite the iron fist policies of his predecessor. The murder rate now stands at 1.9 per 100,000, the lowest in Latin America. He was able to achieve this reduction in crime by incarcerating tens of thousands of supposed gang members in his infamous CECOT prison, which also houses some of the deportees from the United States.

Cracking down on crime and a willingness to try new ways of doing things (such as making Bitcoin legal tender in the country) and an insistence of not allowing conventional institutions to stand in his way have given him early success. Hugo Chavez and Daniel Ortega also were very popular and had early successes. After changes in fortune, however, Chavez’s chosen successor, Nicolas Maduro, and Daniel Ortega remain in power despite widespread unpopularity.

There are a lot of people in the United States that wish the US Constitution was more like the Salvadoran constitution. Democrats claim that the US constitution should be a living document. That the Court’s interpretation of the US Constitution should reflect the current culture and modern ways of thinking. One that evolves, changes over time, and adapts to new circumstances, without being formally amended. But a living document is a politicized document reflecting the views and opinions of the party in power. But the Democrats are not alone. Donald Trump also wants to change how the Constitution is interpreted.

The progressive wing of the Democratic Party wants to change the Constitution to make our country more democratic. The Framers that drafted the Constitution could have made it more democratic if they had wanted to, but in their wisdom they didn’t. Democracy had a pretty spotty history back in the eighteenth century (still does today). There were many different forms and experiments in types of democracies and many failures. The Framers feared moblike rule of unlimited democracy as much as monarchical absolutism. They created a three-pronged form of government that tries to balance political power between an executive, a legislature and a judiciary. Further, the federal government was restricted to enumerated powers and all other power was divided between the states and the people.

This form of government makes our democratic republic slow and inefficient. As Winston Churchill said, “you can trust the Americans to do the right thing, after they have tried everything else.” Dictatorships can be very efficient. Look what Xi Jinping has accomplished. Look at the progress Nayib Bukele has made. The left progressives and the MAGA Republicans are envious of that sort of power.  They want to eliminate the checks and balances that the Framers created to blunt that type of power. Powerful rulers can accomplish many things. But because humans are not perfect, they also make errors and many of the things efficiently implemented by a dictator do not function as intended, do not work well, and often make things worse. Opposing viewpoints are shunned (we now call it cancelled) and subordinates that place honesty above loyalty are fired. Democratically elected leaders with large mandates often concentrate power in their own hands in the name of democracy by systematically undermining any institution that opposes their plans.

The Supreme Court of the United States is just such an institution but Americans no longer trust the Supreme Court. The Annenberg Public Policy Center at the University of Pennsylvania (along with many other sources) reports that trust in the Court is at a new low with 56% of Americans disapproving the Court’s decisions. But most of this disapproval is based on partisan politics with most of the disapproval based on the court’s decisions regarding their political agenda rather than the Court’s adherence to the Constitution. But the US Supreme Court is not supposed to be swayed by public opinion. That is why Supreme Court justices have lifetime tenure.

Public opinion can be fickle and can change over time. But the Constitution remains constant and can only be amended based on an overwhelming  consensus of the American people. The progressive left wants more partisan justices like Ketanji Brown Jackson that will be loyal to their leftist agenda no matter what the Constitution says. But even the MAGA Republicans are suggesting that some older justices retire earlier so that they can be replaced by someone more loyal to President Trump.

The role of the Supreme Court is not to further the political agenda of the party in power but to act as a check against political agendas that defy the US Constitution. We do not want to follow the path of Venezuela or Nicaragua. We do not want to go where El Salvador appears to be going. We do not want a Constitution that is a living document but one that reflects the values and principles of the Framers. A living constitution would be the death of democracy in America.