Republican unified government and the Constitution

If you were surprised by the results of the United States elections, you are not alone. The unexpected election of Republican candidate Donald Trump to the Presidency, and the somewhat less surprising retention of both houses of Congress by the party, could give the Republican Party great control over the agenda in Washington for at least the next two years.

The current count gives Mr Trump 290 electoral votes to 223 for Democrat Hillary Clinton, with Michigan yet to be declared (Mr Trump has a narrow lead). This margin of victory in the College is comfortable enough that one or two 'faithless electors' (members of the Electoral College who do not vote with the candidate they were affiliated with on the ballot paper) could not deny Mr Trump victory. This is despite Mrs Clinton being likely to receive the most votes nationwide.

In the Senate, the Republican Party held marginal seats in Wisconsin, Indiana, Florida, Pennsylvania and North Carolina. The Democrats picked up Illinois and New Hampshire, but this was not enough to defeat the 54-44-2 (independents caucusing with Democrats) majority the Republicans held going in to the election.

Louisiana's Senate seat is yet to be decided; this state holds an election in which all candidates from all parties participate on Election Day; if no candidate secures a majority, a runoff will take place on December 10. This runoff will be between Republican John Kennedy, who won 25% of the vote in the first round, and Democrat Foster Campbell, who won 17%. In total, Republican candidates won 61% of the vote, so it looks likely that Mr Kennedy will win the seat, and the Republican majority will be 52-46-2.

In the House of Representatives, the Republicans appear to have lost seats, going from 247 to a current estimate of 239. Nonetheless, this is still a fairly comfortable majority. It is unclear how many votes the Republicans will end up winning; their House majority in 2012 of was off 47% of the vote compared to 48.4% for the Democrats; the politicised nature of drawing districts for House seats in the United States, combined with strong Republican control over state governments, means that congressional districts in several states have been drawn to apparently favour the Republican Party.

With such an apparently strong position, the Grand Old Party has defied expectations of doom. And now, some have expressed their concern that the Republican Party's strong hold over state legislatures could allow them to amend the Constitution.

Btw you need 3/4 of the state governments in order to amend the constitution. GOP is just shy of that rn. https://t.co/WIoeqOnSVk

— Arthur Chu (@arthur_affect) November 14, 2016

How is the United States Constitution amended?

The United States has been noted for having a rigid, hard-to-amend Constitution. The most common method of amendment is approval by two-thirds of both houses of Congress, followed by ratification by 75% of state legislatures.

In this sense, Mr Chu and those expressing similar concerns are correct. Only thirteen state legislatures are controlled by Democrats. Thirty-eight states are needed for ratification (since 75%*50=37.5, and 37 is less than this), and thirteen legislatures failing to ratify would indeed be the minimum required to block legislation. However, most states have bicameral legislatures, and one house would be sufficient to block ratification of an amendment. In this case, the Democrat position looks more secure. Democrats control one chamber in a further three states, meaning that an amendment on purely partisan lines would be somewhat more difficult than simply overturning the one most marginal Democratic legislature.

However, before the amendment process gets to the point of ratification by the States, approval by Congress is required. This would be the point where the content of an amendment would become somewhat relevant.

What sort of amendment would the Republicans wish to pass?

There are a number of amendments that senior members of the Republican Party, as well as Mr Trump, have either suggested their support for or implied their support for. Nonetheless, it is important to note at this point that unlike in Westminster countries, United States political parties are not nearly as internally disciplined. In most cases, registration and identification as a Republican or Democrat is done on voter registration forms, and there is relatively little control by party organisations over who is nominated. This means that there are substantial ideological differences between members of political parties. Various organisations compile 'ideology scores' that show these differences; as can be seen here.

One briefly popular idea for an amendment was the 'Federal Marriage Amendment', which would have required that all marriages in the United States be between a man and a woman. At the time when this amendment was most popular, several states had introduced same-sex marriage, and socially conservative federal Republicans were opposed to this. In the time since then, however, same-sex marriage has been legalised for the entire United States in the Obergefell v. Hodges case, and same-sex marriage has also earned public approval. The President-Elect, too, has expressed disinterest in the issue, describing it as "settled".

Another proposal, though much more on the fringe, is a constitutional amendment to ban abortion. This proposal has not been substantially discussed, but has occasionally been introduced into Congress as a means to overrule the decision of the Supreme Court in Roe v. Wade in 1974 that the United States Constitution protects abortion rights regardless of federal or state law. Nonetheless, such a proposal would be difficult to pass compared to the easier option of appointing judges to the Supreme Court that would rule in favour of abortion restrictions (approval of a judge requires only a majority in the Senate, compared to the sixty-six votes needed for an amendment). The President-Elect has declared himself in favour of this course of action.

A proposal supported less by the Republican Party than by Mr Trump is the idea that libel laws in the United States should be "opened up". Constitutional amendment could be required to achieve this aim, but other members of the Republican Party do not appear to have expressed views on the subject, implying that it is a pet project of Mr Trump's. This would make it very difficult indeed to amend the Constitution, given the non-existent institutional role the President is given in the amendment process.

Partisan ability to amend

Ignoring the actual content of any amendment, what would it take, however, for Republicans to win enough seats in Congress to theoretically amend the Constitution? In the Senate, Republicans would need to gain fourteen seats; in the House, fifty-one.

It has been noted before that in the Senate, the Democrats face a difficult map. Two United States Senators are elected from each state for six-year terms, with staggered terms meaning that a different group of States vote for Senators every two years. Below is a table showing the different Senators that will be up at the 2018 midterm elections for Congress.

As you can see, more than half of the Democratic caucus will be up for election in 2018. This is because 2012, when these Senators were last up for election, was a successful year for the Democrats, as Senators from the same party as the victorious presidential candidate (that year, Democrat Barack Obama) generally do well. Ten Democrats (assuming Mr Trump's narrow lead in Michigan survives) will be up for election in states Mr Trump won; only one Republican is in a similar position.

Nonetheless, a fourteen-seat gain would be a tough ask for the Republicans. That would involve unseating every single Democrat in a state Mr Trump won, as well as four from states won by Mrs Clinton (most of whom are relatively safe) and holding all of their incumbents. Democrats in red states, like Senators Manchin and Heitkamp, also tend to use the internal ideological flexibility given to them allows them to express views more attuned to the views of their states (both are considered to be on the right-wing of their party, which is reflected by the aforementioned ideology scores); Mrs Clinton had to appeal to more mainstream Democratic voters.

In the House, current counting has the fifty-first most marginal seat (assuming a uniform swing, the most Democratic district the Republicans would need to win) as Massachusetts' 9th district, won by Democrat Bill Keating with 56% of the vote with 34% for his Republican opponent. House members are elected for two-year terms, and will all be up for election in 2018. Now, this way of measuring the likelihood of such an upset has its flaws; it does not take into account potential changes in districts, and assumes a uniform anti-Democratic swing, which given internal ideological diversity would probably not happen. But it nonetheless represents the difficulty inherent for such a swing.

All this would be presumably expected to happen in a midterm election. Midterms are generally bad for the party holding the Presidency, since voters may view it as a way to punish or restrain an existing President without throwing them out of office.

Source: Dave Leip's Atlas of US Elections

Now, clearly, the Republicans could hold on to their unified government at the 2020 presidential and general election. However, more Republicans in the Senate need to be defended at this election, based on a stronger Republican result in 2014. The best prospect for large gains for the Republicans remains the 2018 midterms.

Conclusion

The 2016 election unexpectedly resulted in unified government for the Republican Party, under a controversial and radical leader. A Democratic weakness in the states that developed under Barack Obama's presidency has led some to conclude that this result can not only allow the Republicans to make their preferred legislation, but to amend the Constitution. Nonetheless, these claims are somewhat exaggerated, even at the state level. The likelihood of an amendment passing would depend on its content, but assuming complete Republican unity on such an amendment, the party would need to gain an unfeasible number of seats in order to make changes.

The Butler-Palmer proposal for a New Zealand constitution

Unlike most nations of the world, New Zealand does not have a written constitution. The process of how its government is appointed is governed by ordinary legislation; specifically, the Constitution Act 1986. However, unlike most constitutions, this legislation is not specially entrenched; nor can courts check the validity of legislation against it, since Parliament is considered the supreme body for national legislation. This system is inherited from the United Kingdom, which has a similar constitutional system.

Some opponents of this system claim that it provides little protection for individual liberties (New Zealand's 'Bill of Rights Act' has no validity in the courts), and that it makes the Constitution difficult for ordinary citizens to understand. It was these reasons in particular that appear to have encouraged former Labour Prime Minister Geoffrey Palmer and constitutional lawyer Dr. Andrew Butler to write a draft of a potential New Zealand entrenched Constitution. The document is available here.

The Constitution contains some interesting ideas, though it is mostly relatively gradual change from New Zealand's current constitutional system. At the moment, New Zealand has a unicameral parliament, elected by mixed-member proportional representation. A government is chosen by, and responsible to, this Parliament. All of these features would be preserved, and strengthened in the case of the electoral system. Nonetheless, changes are made to some parts of the nation's constitutional structure. The largest one of these is the abolition of the monarchy.

Republic of New Zealand

The first parts of the Constitution lay out the most immediate and substantial change; the replacement of the monarchy, with the Queen of New Zealand (who, coincidentally, is also the Queen of the United Kingdom, Canada, Australia, Jamaica...) represented by the Governor-General with a Republic. Under the current system, the Queen appoints a Governor-General (by convention, the Governor-General is a non-partisan figure appointed on the advice of the Prime Minister of the day) who then appoints a Prime Minister (generally the leader of the party or parties with majority support in the Parliament).

Under the new system, the Parliament would elect, every five years, a 'Head of State'. It is specifically stated that MPs would have a free vote on this matter, though MPs may still follow party lines on this matter in the hope of gaining a more influential position within the party. This Head of State has the formal power to appoint a Prime Minister, though under the new system they can only appoint the candidate elected by Parliament. They appoint Ministers, though this is on the advice of the Prime Minister only. The same condition applies to the Head of State's power to issue writs for parliamentary elections, to appoint ambassadors, and to promulgate legislation.

Regardless of what my readers may think about the virtues of republicanism, one potentially concerning issue exists with the manner in which legislation is promulgated. Laws passed by the House go to the Head of State for signature. In deciding whether to give approval to legislation, the Head of State must act "on advice from the Prime Minister and Attorney-General". This could potentially mean that Parliament's ability to legislate over the head of the Government could be jeopardised, given that the Prime Minister could simply advise the Head of State to veto legislation that Parliament had passed without his support.

This could be more of an issue in New Zealand's political system. Mixed-member proportional representation means that one party has never had an absolute majority in the House, and as such governments are dependent on support from other parties, perhaps with different ideologies. Were these other parties to disagree with the policies of the government, and were they to attempt to vote with the opposition on a bill, the senior government party, with a minority of seats, could simply veto that bill.

Of course, the general response would be that while New Zealand's (and Australia's) Governors-General have had authority to refuse assent to legislation, they have never done so by convention. This is true, but the Australian Constitution and the New Zealand 'Constitution'  do not include the requirement for the Governor-General to act on the advice of the Prime Minister, and thus the convention would be changed.

A better way of putting this would be to either give the power of promulgating legislation to the Speaker of the House  (as in Papua New Guinea), or to allow the Parliament to override the decision of the Head of State by simple majority and either require them to assent to the legislation (as in Morocco) or allow the Speaker of the House to do so (as in the former Kingdom of Laos). The Head of State could also be simply required to sign the legislation. Any one of these solutions would work just as well as the other, but one should be adopted to ensure Parliament is able to act as a law-making body.

Choosing a Government

The present system of choosing a Prime Minister by the Governor-General appointing the person who has the confidence of the House would be replaced under the new Constitution. Under the new system, the Parliament elects a Prime Minister from amongst its members. The Prime Minister must have majority support from the Parliament, which I take to mean that the Prime Minister would be elected by exhaustive ballot (MPs vote for candidates, the candidate with the lowest number of votes is excluded, a further round takes place amongst the remaining candidates. This process repeats until one candidate has a majority. The candidate who has a majority is then appointed by the Head of State as Prime Minister.

This method of appointing a Prime Minister is quite common in the Pacific region. Papua New Guinea, Vanuatu, Fiji, Nauru (though this is for the combined Head of State and Head of Government, titled the President) and Tuvalu all 'elect' their Prime Minister in this way. In theory, the system acts the same as the method used in other Commonwealth countries of appointment by the Sovereign; in both cases, the Prime Minister should have majority support in the parliament. However, it does provide some clarity to the process. Attempts to use the method of appointment by the Sovereign in countries that are more politically fractured, such as Nigeria, resulted in political violence and extended litigation; even in Australia, the dismissal of the Whitlam government in 1975 represented a case where the powers of the Sovereign were used in a controversial manner.

In this case, then, this represents a very minor change to existing practice in New Zealand. Nonetheless, it would appear to be sensible to take powers away from a Head of State who is meant to "endeavour to act as a non-partisan symbol of unity"; even more so when that leader is chosen for a fixed term by a simple majority of Parliament.  As is normal practice, the Head of State would then appoint a Cabinet, on the advice of the Prime Minister.

Fixed terms of Parliament, for four years, are established. Early elections may be held if three-quarters of Parliament vote for them, or if a majority of MPs vote no confidence in the Government and no new government receives a vote of confidence for fourteen days. This does give the option, for a government wishing an early election, of faking a vote of no confidence in itself and using its majority to block formation of a new government. Nonetheless, this tactic could not be effectively blocked without making it impossible for Parliament to be dissolved in case of a severe deadlock.

Parliament

The Parliament remains unicameral, and most features are again simply the current practice in New Zealand, but codified. The mixed-member proportional representation system is specified as the means by which Parliament is elected, meaning that it cannot be changed without a Constitutional amendment.

Certain parliamentary offices are specified in the Constitution. The Leader of the House, the Opposition Leader, and the Finance Minister are all in the document, with their roles vaguely outlined. This appears to be an attempt not so much to entrench these offices (which have existed in NZ since the evolution of the modern party despite not being in the Constitution) as to make the Constitution more effective in describing how government operates in the country. A committee system is also entrenched. The committees are given the right to propose legislation, and ministers are prohibited from serving on most of them.

Various other financial offices are entrenched, such as the office of the Auditor-General and the Reserve Bank, which is tasked with "formulating and implementing monetary policy designed to promote stability in the general level of prices" and "promoting the maintenance of a sound and efficient financial system".

Rights and Freedoms

Of course, the main goal of this constitution is to create some rights and freedoms against which legislation can be checked. Oddly enough, this section is towards the ending of the document, a rarity when a Constitution has a bill of rights planned out at drafting (the US's rights and freedoms provisions are towards the end, but they were not put in when the Constitution is written); the only example I can immediately think of is Rhodesia, and those were not strictly rights and freedoms (given that they were qualified to the moon, and were not judicially enforceable anyway).

The rights provided are quite broad, including freedom of expression, the right to privacy, freedom from discrimination on a wide variety of bases, freedom of religion, and rights to a fair trial. These rights, however "may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society". This gives some leeway for the government to qualify these rights, though is not uncommon in rights and freedoms provisions around the world. It is also obviously stronger than the current wholly unenforceable Bill of Rights.

Some more rights are provided in the economic area. Free education to the secondary level is guaranteed, and the government is also required to protect the environment (this, as far as I can tell, would be enforceable through the courts). A series of principles for economic policy are laid out, including rights to an "adequate standard of living", social security, and satisfactory health and safety conditions in employment. These principles are explicitly not enforceable through the courts.

The police and intelligence agencies are both specifically mentioned in this section. Both set out that activities of these agencies must be limited by law. Information collected by the security agencies must be approved by a warrant from a 'judicial officer'. Precisely why this provision exists when the right "not to be subject to arbitrary or unlawful interference with that person’s privacy, family, home or correspondence" is unclear; one would assume that, were judicial review to be robust, the courts
would establish guidelines for surveillance.

Other sections

Local government is entrenched in the Constitution, though with no specific powers being granted; rather, a series of principles for its organisation are set out. The office of an Ombudsman is mandated, as is a requirement that official information "must be made available to the greatest extent practicable".

Amendment of the Constitution is done by a vote of three-quarters of Parliament; quite a high threshold by international standards. The US requires a two-thirds majority of both houses of Congress (and ratification from three-quarters of the states) and India requires two-thirds of both houses and half the states: closer in the region, Vanuatu requires two-thirds of Parliament, and Papua New Guinea requires two-thirds as well, while Australia requires a majority in both houses and passage at a referendum by a majority of voters both nationwide and in at least four States. Back in NZ, a referendum is then required, with a majority of votes sufficient to pass the referendum (this is how I interpreted the provision; it does not state specifically that both are required, or that only one is).

An extra provision is added for legislation that is invalidated by the courts for incompatibility with the Constitution. This legislation may be 'validated', and hence considered to be in accordance with the Constitution, if a law to that effect is passed by three-quarters of Parliament (but no referendum). For a Constitution where much effort appears to have been put into making it easy to understand, such a provision would seem to hide amendments to the document in hard-to-find pieces of legislation.

One of the most interesting, and as far as I know unique, provisions is the requirement that a Constitutional Commission be held every ten years. This Commission is to be composed of six law officers (the Clerk of Parliament, the Chief Justice, the Ombudsman etc.) and six lucky members of the public. It is tasked with investigating amendments to the Constitution, and reporting to Parliament on the matter.

In general, the Butler-Palmer proposal has substantial merit for protection of human rights, as compared to their current protections, and for making the governing process clear. Nonetheless, in an effort to reach this goal some of the provisions appear too vague, while others seem even redundant. This could lead to difficulties when legislation went before the courts. In order for the document to be effective, clarity and specificity should be placed above educational value. The remainder of the document represents effective codification of current practices, though with some questionable changes involved in the process of transition to a republic.