I am no scholar of government or of the US government in particular. My understanding is very basic and mostly what I learned several decades ago. But I am thinking about our government in context to government-destabilizing protests in Ukraine and Venezuela (with more interest on Venezuela that is getting virtually no attention compared to Ukraine).
I have been thinking about the US constitution rules for ratification of the constitution itself and any amendments to the constitution. Both required super-majorities measured by states, and that super-majority was measured by states not popular vote. And also, there is a lack of any provision to periodically re-affirm the super-majority consent.
On the one hand, the idea of super-majority of states makes sense at a practical level at the time. There were 13 independent sovereign states with many contentious inter-state controversies. The states had to agree to join and that the number of those joining had to be large enough to have credibility that competing sides of controversies would be willing to abide to the rule of law by the national government. Also, at the the time, decisions had to be made at state levels at different schedules and different ratification processes.
I think there may be something more wise about this idea. A super majority as opposed to a simple majority is required to consent to a form of government that will decide most issues mostly on the basis of simple majority rule. There is the safeguard that the laws must pass both houses and be signed by the president and by approval of the supreme court (a later interpretation that became accepted). These safeguards do not rule out the possibility that the side of an argument could control all branches. That initial consent was to accept the government even with the possibility that simple majority in each of the branches can decide an issue. Those who consent to the government consent on abiding by the laws that are decided unfavorably to their point of view. Underlying this consent may be that the legislative and executive processes will be so diligently argued that the result will result in compromises to capture good will toward the opposing side.
It is also more practical to obtain a super-majority if the decision is aggregated at the state level. A super-majority of states means the states support the government. But at the time, the constitution was considered primarily to be governing the states rather than population as individuals. It made sense to measure consent at the state level and it was more practical too.
But since then, our government has moved more toward a popular model. Although the concept of states still define the amendment process as well as defining the representatives in the legislature and the electoral college that elects the president, all of these representatives answer more directly to the population rather than by the state government.
Given the modern reality of better technologies and the demand for popular votes on major issues, a ratification process today of a new constitution would probably require a popular vote super majority. While a 3/4 super-majority would be desirable is it even possible we can get a 2/3 super-majority to approve a constitution, even exactly the one we have right now?
Whether measured by states or by popular votes, the drafters of the constitution did not make a provision to periodically refresh the ratification of the constitution. Perhaps they assumed it was perfect. Perhaps they assumed it wouldn’t last very long but were hoping it would last long enough to allow a new generation to make a better one. I’m sure these points are addressed in literature. I have not studied the details but I am observing that the drafters realized a super-majority is required to ratify the constitution to get competing parties to agree to resulting laws and enforcement of the government, but they did not assume it necessary to test this consent in the future.
So here we are. We have a government that appears to be running pretty well. Certainly, we have not seen protests of the size of those in other countries. Even the small protests that do occur do not last very long, most don’t last long enough to interrupt dinner plans. Generally we are law abiding and we are participating in the political processes. Elections are decided and the vast majority accepts the results. Laws are passed or executed mostly with tolerable dissent in the opinion markets that now consists of newspapers, televisions, and blogs. We talk a lot but we don’t seem any where near as uncomfortable with our system as the rest of the world. We assume we have super-majority consent.
What is super-majority consent? Arbitrary ratios such as 3/4 or 2/3 are set for practical purposes, they are easy to measure and a ratio can be found that can get general agreement about being about right.
As well observe in government-destabilizing protests in other countries, a better measure is the portion of the population that does not consent. Although images of protests can be very impressive, it is hard to judge if the large number of people represents even close to a majority. Even if an election is held during the height of the protests, it is not clear the protesters would win or even if the existing government would fail. And yet the protests can cause the government to fail, at least to the point of calling for early elections or replacing a leader.
This success of these protests represents a failure to obtain super-majority consent. A super-majority must be large enough to not be over-whelmed by the objecting minority. Again, I find it interesting that the drafters of the US constitution adopted a measure based on states and not individuals. Not only is the number small but the states are strong enough so that a super-majority of 3/4 of the states can present a credible offset to the remaining 1/4 that objects. In contrast, a popular protest of even just a few percent of the population, if held and sustained at the right locations can overwhelm the government.
The aftermath of the civil war pretty much assures that a destabilizing number of states will withhold consent to be governed. But what is the risk of a popular uprising?
We do not know because we never try to ask. I believe the only way to ask is to have a popular election and have each individual assert that he consents to the continued operation of the government. It has to be an expression of a explicit commitment to consent to be governed and to support the in prosecuting those who violate the laws. Also, such an election if failing to get a super-majority will provide legitimacy to act immediately within a generally stable political environment to identify and enact reforms to obtain that super majority.
I’m concerned that this super-majority does not exist. This leaves us vulnerable to a surprise like the governments of Venezuela and Ukraine were surprised. It would be worse for us because at least those governments are accustomed to significant uprisings but were surprised only in how large the present ones have been and how difficult it has been to suppress them.
One hint that I see is the relatively low turn out in elections. The best participation occurs during presidential elections and during the most recent, only 58% of registered voters and only 43% of eligible voters participated. Clearly not everyone who doesn’t participate disagrees with the government but these do indicate a some lack of participation. Also, during ongoing political debates it appears that significant fraction of the participating voters in either party do not consent to being ruled by the opposing party: they are voting in the hopes their side will win. There is a risk that there is destabilizing number of people who may not consent to government as currently constructed.
Another hint is the disregard of certain laws. There is some level of lawlessness that is expected and we have some resources to prosecute the law breakers. The concern are laws that are so widely ignored it is not practical to prosecute them. The threshold of too many lawbreakers doesn’t have to be very large to overwhelm the system, but when they do we tend to stop prosecuting them or only prosecuting them with extreme discretion. Some recent examples appear to be in immigration laws, welfare eligibility laws, and drug laws. In these cases there are so many offenders it is not practical to prosecute them all. Also, the offenders of these laws often invoke sympathies of the law abiding population. I say this is only a hint. I think many people who generally support the government will choose to break certain laws or refuse to prosecute certain laws. There is at least some nullification of certain laws despite being legitimately passed by a legitimate government.
I have doubts that our government has wide scale committed support that could minimize any potential protest or overwhelm that protest with prosecution or counter-protest. I do not think our government is structured in some substantially different way that makes it immune to such destabilizing developments, and I do not see any credible measurements to assure us we have super-majority consent to accept the results of the government and to support the government’s operations.