All men are created equal and they have unalienable rights to life, liberty, and the pursuit of happiness: a variation of these words (that capture its essence) inscribed in the United States’ Declaration of Independence, defined the promise of American democracy. Nearly 240 years after the declaration, much of that promise remains unfulfilled. The continuing discrimination against minorities, particularly Black Americans and the LBGTQ community, belies the proclamation of equality. The ‘right to life’ rhetoric rings hollow on the face of thousands of Americans being killed every year due to gun violence and police brutality. The World Happiness Report, in 2020, ranked America 18 out of 156 countries in happiness ranking. It dropped seven ranks from 2011. Happiness seems to be slipping away in the US.

The American constitution, ratified in 1787, was a compromise document between the slave-owning conservative states and the progressives. Despite the ‘all men are created equal’ exhortation, it allowed slavery and the associated social injustice to continue. Yet, it unleashed unparalleled energy and creativity amongst the white Americans and, in 200 years, made the country the envy of the world.

With time, people became aware of their rights and started demanding equality before the law. Under intense pressure, laws granting equality were passed, but in practice very little changed. Systematic racism against minorities continued. The conservatives were not willing to give up their ‘way of life’ regardless of what the laws said. They always found a way to circumvent it.

With time, social mores also changed. Conservatives had problems accepting these changes too. The conflict between the conservatives and the progressives grew.

America today is a deeply divided country. Americans seem to be insecure and angry at each other. They stock up on firearms in their houses for self-protection. Their trust in their government and political leaders is minimal. Heavily armed, well-organised militias, 800 of them, are spread across the country. This lack of trust in public authority and leaders has weakened American democracy to such an extent that The Intelligence Unit of the reputed The Economist magazine has classified American democracy as ‘flawed’, meaning somewhat dysfunctional.

The United States envisioned by the 18th-century constitution has changed. The constitution needs to be amended to bring it in line with the 21st-century ideas of social justice, equality, and human rights if American democracy is to be the beacon it was once considered.

The process of electing the president and appointing the Supreme Court judges is a good place to start.

A defective system

A fundamental principle of democracy is that an election is won by a candidate who secures the majority of the popular vote. But in the American constitution, the president is not elected by winning a simple majority, but by an electoral college.

The electoral college system was devised to give more power to smaller states in the Union and is very complex. Under this system, in a narrowly fought election, it is possible to win a presidential election by winning the popular vote in a large number of less populous states, while still losing the popular vote in the national tally. Until now, five American presidents have won the election by losing the countrywide popular vote. They were all Republicans. George W Bush and Donald J Trump are two of the recent ‘minority’ presidents.

The problem with this anomaly is that, even without the support of the majority of the entire country, the president gets to set the national agenda and force it on the majority. It is wholly undemocratic.

A flawed and outdated mode of appointment also persists in the selection of Supreme Court justices. The judges of the US Supreme Court are nominated by the President and confirmed by the Senate. The appointment of a justice occurs when there is a vacancy in the Supreme Court. Barring the addition of seats through a process that requires the consent of both Houses of Congress and the president, a vacancy occurs when a sitting judge resigns or dies, or is removed from office due to bad behaviour. This essentially means justices are appointed for a lifetime. The authors of the constitution went for a lifetime appointment to give absolute security to the job to ensure the judges remain wholly impartial and are not beholden to a particular political party. This strategy is now proving disastrous, because the rulings from the judges seem to reflect their political and religious bias—not a neutral interpretation of the Constitution.

A Republican president usually appoints conservative judges, who espouse the concept of originalism (my preferred descriptor would be fundamentalism). The Originalists interpret the constitution as, in their opinion, the authors of the constitution would have envisioned it in 1787, the year the constitution was ratified. A Democratic president appoints relatively liberal judges, who consider the constitution a living document that can be adapted to reflect the current reality.

Presently, the balance of the Supreme Court judges is heavily in favour of the conservatives. They have ruled against gun control; supported voter suppression strategies by the Republican Party and gerrymandering; voted against expanding public health and tried to limit abortion rights. All of this even though a vast majority of the Americans favour gun control, expanded health care, and abortion rights.

The Supreme Court has become so politicised that it is losing public trust. According to a 2020 Gallup poll, only 40 percent of the Americans have confidence in the impartiality of the Supreme Court. This is a serious setback for a functioning democracy, particularly in a country with a heavily armed population.

America’s way forward

America today is a highly polarised, deeply divided country that is angry with itself. Donald Trump is blamed for much of it. He used the growing divide between the insecure, unhappy Americans fragmented by class, race and religion to his advantage. Trump, a Minority President, exacerbated the divide and is pushing the minority agenda by using his enablers in the Senate and the Supreme Court.

I cannot think of the horrors another four years of Trump may bring; so let me assume Joe Biden wins the election. His chances are looking increasingly brighter. Many believe things will get better with Biden at the helm. They surely will. Dignity in the White House will be restored, public discourse will be more civil, the economy may improve and misinformation—some even deadly—surrounding Covid-19 and its treatment will stop.

But America's problems with its democracy are structural. Fixing them will require an amendment to the constitution. Biden alone cannot do it. He will need the Republicans to cooperate. If the Originalists in the Supreme Court continue to push the 18th-century interpretation of the constitution to 21st-century America, the country may be beset by violence and instability. That will neither be good for America, nor for the world.