THE PRESIDENCY, NATIONAL SECURITY, AND DEMOCRACY- THE CASE OF THE US CONSTITUTIONAL PROJECT

 Is the American Constitutional Project democratic enough? Prof. Amar, a Constitutional Law Professor at Yale, advances interesting arguments that juxtapose the idea that the American Constitutional Project was more democratic from the Crafters imagination to practical revelation and ordainment of the document. 

To begin with, the framers of the American Constitution saw the document as emanating from the people as we see in the preamble a unique phrase such as: “We the people”. We the people of America embracing the democratic involvement of the sovereignty of the American people across every fabric of the society in the Constitutional Project.

"We the people" meant the Constitutional Project involved civic engagements and deliberations on ideas by the very design of the principles and lived experiences and lifestyle of the sovereignty of the American people. The Law emanated from the people and for the people to be ruled by the people.

Again, the document was crafted in simplified language such that the laymen could pick and read and fathom the provisions of the Constitutional Project. It did not carry coded or technical jargons much so well that the ordinary people would have to seek professional aid in order to read, interpret and grasp understanding.

The American Constitutional Project also, factored into consideration national security concerns in crafting the document. By so doing, it became clear in Article I, that Congress defines a pay structure for the Presidency. The Presidency, even though, established through Article II, had it’s pay structure addressed by Congress in Article I. Initially, George Washington wanted to refuse the idea of him been paid to do the job, but the Founders insisted, and Congress entrenched its role on the topic that it was a must that the President does get paid in order not to compromise national security concerns. So it became a tradition a matter of constitutional requirement that the President receives a salary. But unlike judges, Congress could not adjust the salary of the President either by increasing or decreasing it because it was thought of that the four term tenure of the Presidency is not so much subject to the micro economic index of inflation unlike judges who could stay in office for a life tenure. Also, the national security and democratic concern was that, if Congress could increase the President's salary at will, then they could most likely influence the President to assent laws that they wish to pass without exercising the presidential veto power under the Constitution.

Another national security concern factored into the Constitutional Project was Zero Property Qualification. The President didn’t have to be necessarily an affluent or superfluously rich person to stand. Instead, the Office was opened to all talents and the ordinary people of America. In fact, Presidents Ulysses S. Grant, Andrew Jackson, Bill Clinton, Obama, and many others came to office as ordinary people without any affiliation to the wealthy class society, even though, they might have achieved personal values for themselves hitherto. This process was a way of the Founders, trying to prevent the affluent always taking power and rendering the New World into another tyrannical regime as they had just escaped from King George I of the Great Britain.

Another national security consideration was the no religious qualification clause. One did not have to qualify as belonging to some approved religious denomination before, he could mount the presidential seat. In fact, Abraham Lincoln was not attached to any religious sect, Obama was affiliated to a Muslim parents, and presently, President Biden is a Catholic. That is the more reason, why the Constitution does not demand that the President swears the Oath of Office with any religious element, even though, the first President, George Washington, took the Oath of Office with an old King James Protestant Bible.

To ensure, national security measures are in place, the Constitutional Project, leaves the President with the duty of continuity of the government. So he or she is holding the fort (24/7 – 365), unlike Congress that could go on recess or the judiciary. The President does undertake treaties and negotiations with foreign governments unilaterally, even though, they are later, presented to Congress for senatorial approvals. But the national security concerns in this practice is that the President must defend, protect and preserve the Constitution, and that involves, protecting the county from external aggression and invasion. Unilateral decisions by the President in such instances, where judicious discretion is required to prevent the Constitution from being subverted is crucial. President Thomas Jefferson took such unilateral actions to negotiate with Napoleon on the sale of Louisiana until Congress later approved the payment budget because at the time Congress was not in session, and yet for national security interest in making sure that a formidable territorial boundary is established against foreign aggression and invasion of the New World, the action was unilaterally undertaken in the Supreme national security interest of the Union.

The Constitutional duty of Presidential pardons also, help achieve national security. As the Commander-In-Chief of the US Army, the President wields control and influence over Pentagon, though State Militias are not subject to such Presidential controls. But with the Power of Pardon, whether convicted, indicted or on pre-trial, the President could help save a national security crisis through the power of pardon. He could bait the militia to put down the arms in exchange for pardon where insurrection is eminent.

Andrew Jackson, who was a prodemocracy, proslavocracy and an egalitarian General, fought the 1812 war of the New Orleans- a kind of second civil war to defend the national security interest of the Union.

Either coming from unilateral Foreign negotiations to a solo decision to go to war in the supreme interest of the national security of the State and to protecting, defending and preserving the Constitution, democracy is entrenched and never compromised. In Article I, Congress declares war and in Article II the President goes to war, but where judicious discretion is required, the President might take the bull by the horn to protect, preserve and defend the Constitution, and prevent it from been subverted – that is equally a democratic acceptability under the norms and practices.

©2021 DANIEL KOFI AWUKU-ASARE

LGBTQ+ AND THE RULE OF LAW - THE GHANAIAN CASE STUDY

 THE LEGAL PHILOSOPHY OF AMERICA'S UNWRITTEN CONSTITUTION – THE GHANAIAN CASE STUDY; LGBTQ+ AND MATTERS ARISING.

DANIEL KOFI AWUKU-ASARE

https://www.linkedin.com/in/daniel-awuku-asare-264572190

awukuasaredaniel@gmail.com

The issue of human rights and its advocacy, no doubt has assumed such a global momentum that the sovereignty of nations and their laws are critically challenged by the passage of  numerous international laws, conventions and treaties when it comes to the violation of such provisions in the lives of the citizenry in the nations around the world.

Perhaps, the most talked about human rights advocacy in recent years is the emergence of the LGBTQ+ Movement. Indeed, this group has succeeded to a very large extent with great momentum in the jurisdictions of the Western World. Their penetration into the Developing World, however, remains a hurdle that no one single answer can easily overcome; not even under the Constitutions of many developing economies especially in Africa.

The introduction of the  Proper Human Rights and Ghanaian Family Values Bill 2021 draft bill, in the Parliament of Ghana that seeks to criminalize the activities of the LGBTQ+ community has attracted much attention across the length and breadth of the Ghanaian society.

Of course, talking about human rights, is a subject of the Rule of Law, which I am particularly interested to elucidate legal basis, legal concepts and legal arguments. It is very obvious that the context within which the LGBTQ+ movement seeks their validation is through legal arguments so any attempt to assent or denounce their claim must be exercised legally. The moral and socio-cultural factors on their own cannot answer a legal claim, but relevantly, they can validate a legal stance or proposition.

In his book, the American Unwritten Constitution, an Authority, and a Constitutional Law Professor at Yale University, Professor Akhil Reed Amar, argues that the Unwritten Constitution of America – fundamentally, derives its significant principles from the lived experiences and lifestyle of the sovereignty of the American people, and to that effect must and does aid the interpretation of the terse text of the Written Constitution. The sovereignty of the American people is deduced from the very belief systems and way of life or cultural embodiment of the American, and same find their way into the principles and claims of the American Unwritten Constitution, undoubtedly, as proposed by Professor Amar. Many instances have been advanced by the reputable Constitutional Law Professor, that alludes to law, logic and reasoning.

For instance, Professor Amar, argues, that before, the adoption or ordainment of the American Written Constitution in 1789 at the Philadelphia Convention, the sovereignty of the American people was already at play in civic engagements and proactive discourse, and also, even before the Declaration of Independence in 1776. This meant, that the lived experiences and lifestyle of the sovereignty of the American people, promoted and acknowledged free speech and freedom of expression; indicatively, this exercise emanating from the sovereignty of the American people predated the ordainment of the Written Constitution and it subsequent adoption of the Bill of Rights of which the First Amendment forms part and promulgate Freedom of Speech and Expression among others. In his conclusion in this particular instance, therefore, the Written text of the First Amendment did not begin the practice of the Freedom of Speech, and therefore, its constitutional ordainment is very correct – in that it reflects the lived experiences and lifestyle of the sovereignty of the American people.

There are many constitutional elements like the concept of Majority Rule, Separation of Powers, Limited Government, Federalism etc., which do not find their direct space in the terse text of the Written Constitution, howbeit, accepted as constitutional practices in the democratic context because of the history of their emergence, which of course hinges on the lived experiences and lifestyle of the sovereignty of the American people. 

Indeed, the Ninth Amendment support, the conclusion, that human rights could not be definite because they are inherent and natural, therefore, certain unenumerated rights could be derived in the evolution of our democratic culture, but such could be settled on only within the undisputed context of the lived experiences and lifestyle of the sovereignty of the American people. Landmark Supreme Court cases including Brown v Board of Education have settled many controversial constitutional questions from the purview of the Unwritten Constitution proposition as Prof. Amar narrates. So in essence, the interpretation of the Written Constitution of America sometimes depends on the Unwritten Constitution, when the interpretation of the terse text in the literalist approach leads to absurdity.

The question that the LGBTQ+ proposed Bill in Ghana faces, must be analyzed from this legal lens. If the interpretation of the terse text of the 1992 4th Republican Constitution on the question leads to absurdity or even if such clear text does not exist, then the Unwritten Constitution principle in American context must be applied within the Ghanaian context as well because it makes legal sense. And in that exercise therefore, one would ask the multi-dollar question: “What has been the lived experiences and lifestyle of the Ghanaian people prior the adoption of the 1992 4th Republican Constitution or say an earlier one of the 1925 Guggisberg Constitution? This question is not a difficult legal question to answer by every nook and cranny of the Ghanaian society. In fact, the lived experiences and lifestyle of the sovereignty of the Ghanaian people across all span of tribal and religious fronts dangerously frowns on man-man or woman-woman marriage or any of their modifications, prescribed by the LGBTQ+ Movement. The legal answer is simple, within the context of right to marriage in Ghana, which same is advanced under the 14th Amendment in the US jurisdiction, thus, marriage is between a naturally born male and naturally born female with such natural physical characteristics identified at birth.

Advancing the legal intellectual argument of the Yale Professor in question, Professor Akhil Reed Amar, an Authority on Constitutional Law - within the context of the Ghanaian jurisprudence, it is illegal to practice LGBTQ+ within our geopolitical spheres. And as I attempted to do here and cautioned in my introductory piece, the answer I provide here is primarily within legal argument connected inseparably to cultural norms, morality and social values – which themselves are allowed in Constitutional Law philosophy.

I however, have a piece of advice to offer the Ghanaian society - Democracy involves much the expression of views and opinions, and even within the American context, there are only few instances where such rights under the First Amendment could be suppressed. The view points of those Ghanaian University Professors must not be necessarily attached to their personality – they have a right to express their views, but those views do not make the laws; rather they inform the making of the laws. What are your views publicly expressed that inform the making of the laws especially on the proposed Proper Human Rights and Ghanaian Family Values Bill 2021, draft bill? In America, when it gets critical, the majority’s view hit the streets in protestations. Advocacy Groups get radical, and civic engagements are enhanced. 

The passage of the law must be reflective of the majority view of the citizenry since Congress is representational. I believe that the Ghanaian democracy is evinced along the same model, and therefore, if indeed, the majority of the rank and file of the Ghanaian populace abhor the LGBTQ+ Movement in Ghana, then it must reflect in Parliament, anything in the opposite will be counterproductive and non representational in that sense.

How many of the 35million+ people in Ghana today have publicly registered their disgust for the LGBTQ+ to serve an overwhelming evidence to challenge a contrary outcome from Parliament?

Let’s do the needful! 

Reference: Amar, Akhil Reed: AMERICA’S UNWRITTEN CONSTITUTION: the Precedents and Principles We Live By, Basic Books(2012).

THE CONCEPT OF THE RULE OF LAW AND ITS APPLICATIONS

The concept of the Rule of Law means absence of military junta and the presence of participatory democracy through the Constitution -the bedrock of our legal collections. In essence, the concept invites democracy, where legitimate power of the law and governance is derived from the citizenry. Anything short of this does not qualify for Rule of Law and democratic sustainability.

Rule of Law has no single universal definition, however, scholarly works from Aristotle, and pre-liberals like John Locke and Thomas Hobbes have laid the foundation for a modern evolution of the concept. Lord Bingham, the British Lord, sees the concept of Rule of Law as giving people the right to fair trial and judicial freedom under the Due Process Clause. In Rule of Law, the law sets the framework with mutual support from the people in the governance of the polis. There is no room for arbitrariness.

To help build the Rule of Law therefore, implies, that we must eschew political apathy, and introduce Active Citizenship Participation Campaigns through civic leadership engagements, demand for civic virtues, and democratic accountability. Civil Society Activists Groups must help create political awareness through active and proactive media engagements, community advocacy networks and direct involvement in political leadership. Participation in voting during political elections and respect for the views of one another even in the face of dissent must be strongly encouraged. 

Consensus building must be inculcated in our democratic decision-making processes. Also, State institutions must be established by law and be strengthened to perform without fear or failure in our political democratic exercise. The press must be insulated from undue factionism, and party political manipulations. The media must serve as watchdog in our democratic exercise, and the onus is on them to set the agenda and educate the populace on their rights and responsibilities in collaboration with other democratic State institutions.

The democratic arms of government (i.e. the Executive, Legislature and the Judiciary ) must be seen as co-equal branches of the government under the principles of Separation of Powers and Checks and Balances to prevent dictatorial regimes from gaining grounds and nip corruption in the bud for a transformed economic development agenda, and better economic standard of living.

The principle of Separation of Powers and Checks and Balances ensures that tyranny is completely eliminated or minimized. It ensures that delegated powers are exercised with good faith and conscience, and the exercise of discretion is within the ambit of the law.

By far, the American legal system presents one of the best examples for the Rule of Law - comparatively, around the world. That notwithstanding, there are still few infractions in the justice administration system because of many other factors such as human frailties, institutional and systemic racism,  undue political influence, ideological expansions and lack of institutional reforms. 

The law itself is supposed to advance the positive cause of our social interest. Any law that deviates from this cause and purpose is repugnant and needs be repudiated.

Lord Bingham on the Rule of Law:

https://www.youtube.com/watch?v=XlMCCGD2TeM

 

IS THE PHILOSOPHY OF THE POLITICAL TAMMANY RELEVANT IN OUR MODERN DEMOCRACY?

DANIEL KOFI AWUKU-ASARE,

A careful consideration of the political philosophy that underpins the Tammany Hall in American politics from the days of the revolution to the evolution of the democratic culture and the reforms in the political landscape, gives a deeper understanding of a sort of political culture that pertained, and announces much concerns, then, and even now. For the benefit of the lay reader, let us do you the service of throwing a bit of light on the Tammany Hall as a political philosophy, and a strong political machine that existed functionally in the late 19th century, and early part of the 20th century. Again, the word functionally is used advisedly in context.

The Tammany Hall was a political machine, and practically existed as the most dominant block of the Democratic Party in New York, in the 1890s through 1930s. For historical purposes, it had its headquarters in the gargantuan building of the Tammany Hall Society, a separate form of a Secret Society that operated with all intents and purposes in philanthropy, social relief, community services, and adherence to a unique philosophical inclination. Ironically, most of the members of the Tammany Society were also members of the Democratic machinery called by the same name Tammany Hall, as enumerated above.

The party machine in the Democratic Party in the state of New York was indeed very powerful, but our concerns in this medium has no bearing on how powerful a block or party machine existed, but how relevant it was to the public administration, sustenance of democratic tenets, adherence to the modus of operandi of the entire Democratic Party, and maintenance of the welfare of the citizenry, vis –a –vis its trend of assumption in our current democratic culture and sustenance remains rather, our focus.

One of the key philosophical calling of the Tammany Hall as a Democratic machine was on the principle of “Patronage Democracy” or the “Spoil System.” Every nook and cranny of the bosses shared this belief and made it a calling, equally giving it a snowballing effect in the decentralized local government system of administration. Cronies of the Tammany Hall, believed in shared responsibility to those who gave them the “pull” or followership.

The ideological speculation of the nature of the machine politics did not center much on who qualified or had the best academic qualification for the job available. The “Merit System” actually was relegated to the background, whilst nepotism and favoritism assumed a radical dimension in the political landscape of the geo-political and socio-economic administration of the New York City and for that matter the State. Off course, the City was figuratively the State and Tammany Hall invariably; the Democratic branch in the State of New York, even though other seemingly blocks of the Democratic Party machine existed in the State.

The geo-political philosophy of the Tammany Hall vehemently resisted Public Service Reforms, which pertained in education, employment and allocation of social services and infrastructure. The multi-dollar question is why the vehement opposition and resentment from the “Bosses” of the Wards and from the District and Municipal administrative hierarchy? Do you believe in the moral value of the principle of “Honest Graft?” Do the citizenry need to share in the joy of the Honest Graft? Were the citizenry, really conscious of the principle of the “Honest Graft” in that political and democratic evolution? Was dictatorship shrouded in obscurity and enforced in the will of the people?

These were the revelations that brought enlightenment in the face of the culture of comfort that the social class or the bourgeoisie carved for themselves in the party political machine of the 20th century. And today we ask: How relevant is this political philosophy to our cherished democracy? Is the party political machine still in operation? If yes, of what trend is it different from the 20th century historical demonstration of the Tammany Hall?  

A critical development, worthy of note, was how the urban political administration, influenced and hijacked  supposed democratic elections, through a mechanism called repeated voters or simply “repeaters”, just to ensure that the Tammany Hall secure power for the Democratic Party and continue to “build the nation”, as purported. To them, Civil Service Reforms was a curse, and amassing wealth through a political office was just an opportune blessing of Mother Nature, and just like the discovery of hidden treasury.

It is significant to indicate that as we recall this significant political milestone, a critical introspection and retrospection is made of the current dispensation of the geo-political and democratic governance. Has the party machine improved or deteriorated overnight? If the purpose of politics is to seek the common good of the citizenry, then must the citizenry bear the blunt of a unique inclination to a political philosophy by the core of the groupings?

What is perhaps required in the reform administration of the current dispensation of politics and government, is social and economic justice, which is interwoven with equality, equity, preservation of human dignity, good governance, accountability, rule of law and respect for the constitution. These reforms do not only improve our governance system, but equally, they help sustain the very moral fabric of our socio-cultural norms, values, love for humanity and fear of God.

Again, in the current dispensation of the reform administration, bribery and corruption is a crime prosecutable under the law, and in the circumstance, the giver and the receiver are both at fault. In fact, the power of the instrument of the law was perhaps, inefficacious or unmindful under the regime of the political machine - Tammany Hall, as crime was compensated, at the expense of justice administration and correction. So we ask: Has the law resumed its efficacy since? Or the law is still an ass? At what point in time do we feel convinced that the fundamental human rights of the citizenry is marginalized under the full glare of the instrument of the law, and do we still have such machines that guarantee the barbaric continuity of this system? To this extent, we seek to clarify, how relevant the political philosophy of the Tammany Hall is to our modern democratic culture, and to make a full assessment of their ramifications on the wellbeing of the citizenry. 

Are there any useful lessons for the political hierarchy and the citizenry? As published in his book: “The shame of the cities,” Lincoln Steffens, also a former city editor of the New York Commercial Advertiser, remarked, “Tammany kindness was real kindness and went far” its power “gathered up cheaply like garbage in the districts.”

We cannot assume to take anything for granted. As patriotic citizens, our active participation in the democratic process of decision making is as equally important as the power and role invested in our representatives in government, and we have a collaborative role to ensure the sustenance of true democratic governance, devoid of undue manipulations. To partner this contract effectively, we must do away with apathy and indifference in the governance of the country. Our political representatives, who are entrusted with enumerated powers, must also ensure that our civic responsibilities are honored through effective and efficient civic leadership engagements, and citizenship active participation in the democratic governance in a welcoming manner of our inclusive democratic political culture. 

A critical observation of the Tammany machine, may conclude that perhaps, active participation in the local politics and strategic tactics of the Tammany machinery was not absent, what really was missing, was a lack of understanding of the socio-political issues, by a mass majority of the electorate, and this disadvantaged them immensely to the benefit of the political lords. The call again is for our modern democratic institutions and civil society activist groups to intensify their public education campaigns, on all the socio- economic, political and legal issues that bind and concern the citizens, in order that they might be well- informed to contribute their quota meaningfully, and become watchdogs on the main principles of Checks and Balances inherent in the very concept of Separation of Powers.

This is what Aristotle describes in the real sense of the word, “Citizenship.”

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