Donald Trump asserted outside the courthouse in New York last week that his trial was “rigged” and that he would appeal a jury conviction on criminal charges to “defend the constitution”.

A substantial number of Americans, including many supporters of the Republican party, believe that the constitution has been hijacked by political developments since the 1960s, including the 1964 Civil Rights Act, the legalisation (since partly withdrawn) of abortion and of same-sex marriage.

And not because they all oppose abortion, racial equality or an end to discrimination against gay people although some do, but because social change has come through the courts rather than via the political system.

Major changes

This does not happen in countries where major changes are affected by popular referendums or through legislative reform in an elected parliament.

The separation of powers in the United States is breaking down when half the electorate supports a presidential candidate who asserts that the US courts are not respecting its own constitution.

Most European countries, including Ireland, have seen the same social changes over the last 60 years but without the same sense of grievance, the belief that those reluctant for change have been imposed upon by unelected judges.

Hence their support for Trump, who pledges to defend a constitutional order to which, in the eyes of his critics, he is the greatest threat. At the heart of the problem is the revered constitution itself, which was drafted in 1787 and has become politically impossible to amend.

The last amendment, on a minor technical matter, was 32 years ago and the process of amendment is so difficult that there have been just three modifications in the last half-century.

Major social change, including the legalisation of abortion, was left to the courts whose composition has inevitably become a matter of political controversy.

In Ireland, the 1983 referendum installed an abortion ban in the constitution and removed it in 2018.

Both verdicts were accepted by the losing side, which would hardly have happened had the courts made the changes on their own initiative without a popular vote. To change the US constitution requires that three-quarters of the 50 states must assent along with super-majorities in both the House of Representatives and the Senate.

The method of constitutional amendment is a critical component of a codified constitution and the Founding Fathers (there were no Founding Mothers in 1787) devised a system, for the 13 former colonies which initially comprised the Republic, which now works like this. An amendment requires the support of:

  • Two-thirds of the 100 senators,
  • Two-thirds of the 435-member House of Representatives, and
  • Three-fourths of the 50 state legislatures.
  • The House of Representatives is democratic – small states have few members, while larger states have more, in proportion to population.

    California has the most at 52 out of 435, while six small states have only one each.

    But the Senate is not democratic at all. Each state has two senators, regardless of size

    If a proposal gets the requisite two-thirds supermajority in the House, it means that only about one-third of the electorate’s chosen representatives were opposed.

    But the Senate is not democratic at all. Each state has two senators, regardless of size. Thus, 34 negative votes from 17 senators will suffice to block a proposal, and the 17 smallest states have a combined population around 7% of the US total.

    Cork city and county has over 10% in Ireland but no veto. Some of the states are tiny – the largest, California, has almost 40m inhabitants, versus 577,000 for the smallest, Wyoming, which has the same number of senators, rather as if Leitrim had the same Dáil representation as Dublin.

    The US has seen enormous social change since the 1960s without a single national referendum to assure political legitimacy, since the 1787 constitution does not provide for national referendums.

    No modern European democracy has adopted the US formula, which is stuck with a Catch-22, a crisis born of a far older constitution which has become just too hard to change.

    Closer to home, the 2016 referendum in the United Kingdom, one of only three countries in the world not to have a codified constitution, tied the government up in knots after the narrow Brexit vote, initially deemed merely consultative by the losing side.

    The government could, at least in theory, have ignored the 52-48 vote to leave the European Union.

    Divisive debate

    There followed a divisive debate about the will of the people and ultimately reliance on the 2019 general election to ‘Get Brexit Done’.

    This simply cannot happen in countries which have a clear and widely understood procedure for constitutional change, be it through referendum or through a parliament that reflects public opinion through a fair allocation of representation.

    The United States has neither of these and the Trump phenomenon reflects the political vacuum created in 1787 and filled by the courts.