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The name of the US system is not the “presidential system”

Muratcan Isildak

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11 years after the United States declared independence from the British Kingdom, 55 people representing 12 colonies gathered in Philadelphia on May 25, 1787. Their aim was to make a constitution that would shape the new state, which had been in the form of a loose confederation for 11 years. These 55 men did not have a republic administration that could set an example in the world of those days. They learned by painfully experiencing the arbitrariness and tyranny of a system in which the governors of the colony were the ‘governor of their majesty’, the judges’ the ‘judge of their majesty’, and the law was the ‘command of his majesty’. However, the experience of “democracy” in the colonies within 11 years after the declaration of independence did not turn out very bright. In many places of the colonies, only decisions based on majority vote had arbitrary and overbearing pressure on the minority, as much as the governors of their majesty. They were looking for a system that would not allow arbitrariness and abuse of power, but also guarantee equality, freedom and rights for each individual. For this reason, it is understood from their correspondence and discussions in those days that they have studied all the management experiences in history since Ancient Greece. French lawyer Montesquieu was also one of the names that he was most impressed with. The theory of separation of powers expressed by Montesquieu in the Spirit of Laws published in 1748 was one of the most important guides in shaping the new American state.

James Madison, one of the architects of the US Constitution, wrote in the Federalist article No. 51 published in 1788: Regardless of whether he came with reign or election, giving the same hand is the definition of tyranny. ”

After the Constitutional Assembly, which lasted 3 months and 23 days until September 17, 1787, the world’s shortest constitution with 7 articles (including 27 additional articles to be added in the following years) emerged. The first three articles of the Constitution guarantee the separation of powers. They preferred to put the chairman, the executive, not the executive, the legislative power, in the center of the state. The first article held the Congress, the second the presidency and the third the judiciary.

During the approval of the Constitution at state congresses throughout 1788, some criticized that the first three articles of the Constitution did not bring a pure separation of powers. For example, the president had the power to veto a law passed by the Congress. This was the exercise of legislative power by the president. The Senate also had the power to reject the president’s appointments to federal institutions. This was executive power. These people were right in their criticism. As a matter of fact, James Madison, one of the most important actors in the creation of the new Constitution, would write that “a pure separation of powers is practically not possible and this is not the intention of Montesquieu.”

But what would prevent the state’s legislative, judicial and executive powers from gathering in the same hand, and thus the disappearance of the republic, if it was impossible for them to be completely separated?

The essence of the American constitutional state system emerged in this search for a solution: ‘Check and Balance’, namely ‘Balance and Supervision’. In fact, although there are some primitive practices in the British monarchy, Madison is also referred to as the “Madisonian Model” because it was the idea pioneer of applying it to a republic for the first time. In the balance and supervision system, the powers that make the law, enforce it and interpret the law will be independent from each other, but they will also have the power to control each other when they exceed their authority.

After the Constitution was adopted, despite these mechanisms, the feeling that state power continued to pose a potential threat to the rights and freedoms of citizens. Madison and Thomas Jefferson also joined this concern. Madison expressed concern that an oppressive majority could easily violate minority rights, and submitted an additional 10 amendments to the Constitution, called the ‘Bill of Rights’ in 1789. The constitutional amendment was approved in 1791. First Amendment, which restricts the freedom of expression and assembly of the congress or prohibits making laws against / against any religion, included the three powers of the state as well as the public in the system of ‘balance and supervision’. In other words, media, non-governmental organizations or ordinary citizens also gained the right to control, criticize, disclose and campaign against all kinds of activities of the state.

The retouch that Montesquieu is the real separation of “separation of powers” will come from the US Supreme Court on February 24, 1803.

In the case of William Marbury, who was appointed as a judge but whose appointment was not processed due to a lack of procedure; the case-law of the Supreme Court regarding the role of the judiciary rather than the content of the case was the beginning of the age of “separation of powers”.

The Supreme Court unanimously ruled that, in the decision of the case called ‘Marbury v Madison, there should be a man to protect the constitution; both against the executive and the legislature, and that it was the judiciary. That is, the courts were judged to have the power to cancel the laws, presidential decrees and practices they found unconstitutional.

President of the Supreme Court, John Marshall, wrote on the grounds: “The constitution is either a superior law that cannot be easily changed like ordinary laws, or it is the same level of savings as ordinary laws that the legislative power can change at any time. If the first of these options is true, the legislative body’s unconstitutional savings cannot qualify as a law. The second point is that written constitutions are like a meaningless attempt by nations to limit a force that is inherently impossible to limit. ”

Marbury v 1803 of the Supreme Court. The main purpose of this judicial control, which he reinforced with the case law in the Madison case, was to prevent the establishment of a dictatorship in the country by the executive or legislative power, or the denial of the constitutional order by law, and to guarantee the survival of the constitutional order of the republic.

Since this jurisprudence, both the federal district court and the Supreme Court have been able to revoke a law made by the Congress on the grounds that it is against the Constitution. Alexander Hamilton would write that the judicial control, which he described as the “legislative powers’ barrier against abuse”, was “the most shaping of the character of the American state system”.

The American system is of course not a perfect system. It also produced many problems. However, this system is the most important reason why the USA has not had a dictatorship experience for 227 years, has not witnessed a democracy cut, and is known as the ‘country of freedoms’. In political history, it continues to be the most effective mechanism for preventing abuse of state power.

In the USA, the term “presidential system” is a statement used for executive power in the context of the relationship between legislature and executive powers. It is not a concept that describes the American state system. In fact, this false perception occurred in the 20th century with the development of mass media. For example, Abraham Lincoln, who was considered the most important president of the USA by historians, was a name he did not know throughout the world, even in Europe. The first world-renowned president was Woodrow Wilson, president of World War I. The fact that the US presidential elections became the center of attention started in 1960 with the election of John F. Kennedy. The importance attributed to the president in the American public has increased in the last century. The position of the presidents, especially in foreign policy, strengthened relatively during the Cold War. However, the President is still not the power at the center of the system. It’s not the only power. The name of the American state system is not the “presidential system” but the “balance and control system”.

A state equipped with control mechanisms

The system of balance and control produces constant tension and strife among the three powers of the state. But this is exactly what constitutionalists want. Madison would record, “the passion of every man breaks another man from exceeding his authority.” This conflict, which mostly produces results for the benefit of America, is found all over the American system at the local or federal scale.

The President of the USA has the power to veto the law made by the Congress, but Congress has the power to pass the veto by two-thirds of the votes and enact the same bill.

From the ministers, ambassadors, the CIA and FBI presidents to the heads of federal institutions such as NASA and the Central Bank, the president chooses the candidate for all the important authorities of the executive, but only if the Senate approves.

Candidates for the vacant membership of the Supreme Court and judges to the federal courts elect the president, but they can start their duty only if the absolute majority of the Senate approves. Federal judges and members of the Supreme Court can never be dismissed and amended against their personal rights unless they retire voluntarily after they have taken office. This prevents a single government from completely filling the judiciary with its own staff within the mandate. Nevertheless, Congress can dismiss judges whose heavy penalty criminal crime is fixed from their duties.

The president and ministers sign international treaties on behalf of the US state, but the approval of two-thirds of the Senate is required for these treaties to take effect. The judiciary can also revoke the administrative decisions of the head of state or international treaties by finding it unconstitutional.

The Congress has the power to dismiss the President of the USA, the rulers of the federal institutions. During the dismissal, the House of Representatives acts as the admissions authority of the indictment and the Senate as a court. In these sessions, the President of the Senate is chaired by the Senate. The Assembly has exercised the power to initiate the process of dismissal about the president twice so far.

Through its committees and subcommittees, federal institutions have the authority to examine, investigate and, if necessary, refer to all decisions, policies and procedures. One of the ex-presidents, Woodrow Wilson, would state that the Congress has this legislative power over administrative functioning.

Congress can annul the Supreme Court case-law by amending the Constitution. But the constitutional amendment can only take place with the two-thirds vote of both wings of the Congress and the approval of three-quarters of the 50 state congresses. In other words, it is impossible for a party to change the Constitution alone, no matter how strong it is.

As a PhD student, he studies in political science and public administration , actively serves as an court expert and is the president of the board of Genç Düşünce Enstitüsü.

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Americas

In Praise of the Lioness of Law: Ruth Bader Ginsburg and her Jurisprudence

Punsara Amarasinghe

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image credit: Wikipedia

The death of the US Supreme Court Judge Ruth Bader Ginsburg has created an abyss in the court for the liberal voice where justice Ginsburg was seen as the linchpin of the liberal block of the Supreme Court at a time when that block was shrinking. Especially late judge had vociferously advocated for women ‘rights, environmental issues and often came up with unique dissents in delivering her judgements which were propelled by her jurisprudence which embodied the solemn ideal in American legal system “Equal Protection under the Law “. She was on a quest to defend the delicate balance between honoring the timelessness of American Constitution and recognizing the depth of its enduring principles in new centuries and under new circumstances.

She grew up in an era where men held the helm in every aspect of social life and especially the legal profession was utterly dominated by men. Recalling her legal studies at Harvard law school in the 50’s judge Ginsburg had stated later how she was once asked by the Dean of Harvard law school to justify her position as a law student that otherwise would have gone to a man. Yet she had the spunk to overcome all the obstacles stood on her way and excelled as a scholar becoming the first female member of the Harvard Law Review.

In tracing her legal career that it becomes a salient fact, Judge Ginsburg marked her name in American legal history even decades before she joined the bench. While at the American Civil Liberties Union in the early seventies she made an upheaval in American in legal system in famous Supreme Court Case Reed Vs Reed. In Reed Vs Reed the brief drafted by Ginsburg provided an astute analysis on the 14th Amendment to the US Constitution, the Equal Protection Clause. Ginsburg’s brief changed the aged long practice existed in the State of Idaho on favoring men over women in estate battles by paving the path for a discourse on gender equality rights in the USA.

Judge Ginsburg’s appointment to the Supreme Court in 1994 during Clinton administration marked the dawn of new jurisprudential chapter in the US Supreme Court. Two terms later, in the United States v. Virginia (VMI), Justice Ginsburg applied her lucid perspective to a sharply disputed constitutional claim. The United States challenged Virginia’s practice of admitting only men to its prestigious military college, the Virginia Military Institute. Writing for six Justices, Ginsburg held this policy unconstitutional under the Equal Protection Clause. In reaching this result, Ginsburg adroitly cut away potentially confounding issues about women’s participation in the military or the advantages of single-sex education.

Her robust activism in securing gender equality often attracted the admirations of the feminist scholars and activists, but it should be noted that her contribution was not only confined to the protection of gender equality. She was a robust critique of racial dissemination which still pervades in American society and she frequently pointed out how racial discrimination has marred the constitutional protections guaranteed to every citizen. Especially in the case of Gratz Vs Bollitnger, she stressed on the commitment that the state ought to fulfil by eliminating the racial biases existing employment and education. Moreover, disabled citizens. In Olmstead v. Zimring, she held that “unjustified institutional isolation of persons with disabilities is a form of discrimination” violating the Americans with Disabilities Act.45 She elaborated a two-fold concept of discrimination, noting that unneeded institutionalization both “perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life”.

In remembering the mortal departure of this prudent judge that one cannot forget her keenness in incorporating international law into her judgements regardless of the disinclination shown by conservative judges like Antony Scalia. Going beyond the mere textualism approach to the law, Ginsburg’s jurisprudence was much more akin to using international law to make substantive decisions. For instance, in her concurring verdict in Grutter Vs Bollinger, Justice Ginsburg relied upon international human rights law, and in particular upon two United Nations conventions, to support her conclusions.

Indeed, the demise of Ruth Ginsburg is a major blow for the liberalists in the USA, especially in an era where liberalist values are at stake under the fervent rise of populist waves propounded by Donald Trump. Especially late judge had been one of the harsh critics of Trump even before ascendency to the Oval office. The void created by the demise of judge Ginsburg might change the role the US Supreme Court if the successor to her position would take a more conservative approach and it will fortify the conservative bloc in the US Supreme Court. Trump has already placed Justices Neil Gorsuch and Brett Kavanaugh and the third pick would more deeply entrench the conservative views in the US Supreme Court, which would inevitably undermine the progressive policies taken during Obama’s administration towards issues such as the environment. The political storm appeared after the death of the late judge has already created a tense situation in US politics as president Trump is determined to appoint a judge to fill before the presidential election in November.

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The Politics of (In)security in Mexico: Between Narcissism and Political Failure

Lisdey Espinoza Pedraza

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Image credit: Wikimedia

Security cannot be that easily separated from the political realm. The need for security is the prime reason why people come together to collectively form a state. Providing security is, therefore, one of the most basic functions of the state as a political and collective entity.

Last Friday, the Mexican president, Andrés Manuel López Obrador (AMLO) laughed during his daily morning press briefings over a national newspaper headline about 45 massacres during his presidency. This attitude summarises in a macabre way his approach to insecurity: it is not his top priority. This is not the first time that AMLO has showed some serious and deeply disturbing lack of empathy for victims of crimes. Before taking office, he knew that insecurity was one of Mexico’s biggest challenges, and he has come to realise that curbing it down will not be as simple as he predicted during his presidential campaign.

Since the start of the War on Drugs in 2006, Mexico has sunk into a deep and ever-growing spiral of violence and vigilantism as a result of the erosion of the capacity of the state to provide safety to citizens. Vigilantism is when citizens decide to take the law into their own hands in order to fill the vacuum left by the state, or to pursue their own very particular interests. Guerrero, Michoacán, Morelos, Tabasco, Tamaulipas and Veracruz have over 50 vigilante organisations that pose substantial danger to the power of the state.

Vigilantism is not the only factor exacerbating the security crisis in Mexico: since 2006, young people have also started to join drug cartels and other criminal organisations. There are important sectors of the population who feel that the state has failed to represent them. They also feel betrayed because the state has not been able to provide them with the necessary means to better themselves. These frustrations make them vulnerable to the indoctrination of organised crime gangs who promise to give them some sort of ideological direction and solution to their problems.

As a result, it is not enough to carry out a kingpin arrest strategy and to preach on the moral duties we have as citizens as well as on human dignity. People need to be given enough means to find alternative livelihoods that are attractive enough to take them out of organised crime, Mexico can draw some important lessons from Sierra Leone who successfully demobilised and resettled ex-combatants after the armed conflict. Vigilantism, recruitment by organised crime, and insecurity have also flourished because of a lack of deterrence. The judicial system is weak and highly ineffective. A large proportion of the population does not trust the police, or the institutions in charge of the rule of law.

A long-term strategy requires linking security with politics. It needs to address not only the consequences but also the roots of unemployment and deep inequality. However, doing so requires decisive actions to root out widespread and vicious corruption. Corruption allows concentration of wealth and also prevents people from being held accountable. This perpetuates the circle of insecurity. Mexico has been slowly moving towards a borderline failed state. The current government is starting to lose legitimacy and the fragility of the state is further perpetuated by the undemocratic, and predatory governance of the current administration.

Creating a safer Mexico requires a strong, coherent, and stable leadership, AMLO’s administration is far from it. His popularity has consistently fallen as a result of his ineffective policies to tackle the pandemic, worsening insecurity, and the economic crisis. Mexico has reached over 72,000 Covid-19 deaths; during his initial 20 months as incumbent president, there has been 53,628 murders, among them 1800 children or teenagers, and 5888 women (11 women killed per day) This criminality rate is double than what it was during the same period in the presidency of Felipe Calderón (2006-2012); and 55% higher than with the last president, Enrique Peña Nieto (2012-2018). Mexico is also experiencing its worst economic recession in 90 years.

Insecurity remains as the issue of most concern among Mexicans, seeing the president laughing about it, can only fill citizens with yet more despair and lack of trusts in the government and its institutions. AMLO’s catastrophic performance is not surprising, though. Much of his failures and shortcomings can be explained by both ideology and a narcissistic personality. Having someone with both of those traits ruling a country under normal, peaceful times is already dangerous enough, add an economic crisis and a pandemic to the mix and the result is utter chaos.

AMLO embodies the prototypical narcissist: he has a grandiose self-image; an inflated ego; a constant need for admiration; and intolerance to criticism. He, like many other narcissists, thinks about himself too much and too often, making him incapable of considering the wellbeing of other and unable to pursue the public interest. He has a scapegoat ready to blame for his failures and mistakes: previous administrations, conservatives, neoliberalism, academics, writers, intellectuals, reporters, scientists, you name it, the list is long and keeps getting longer.

AMLO keeps contradicting himself and he does not realise it. He has been claiming for months that the pandemic is under control: it is not. He declares Mexico is ready to face the pandemic and we have enough tests and medical equipment: we do not. He says Mexico is on its way to economic recovery: it is not. He states corruption is a thing of the past: it is not. He says Mexico is now safer than ever before: it is not. When told the opposite he shrugs criticism off and laughs, the behaviour of a typical narcissist.

AMLO, alike narcissists, due to his inability to face criticism, has never cared about surrounding himself by the best and brightest. He chose a bunch of flunkies as members of his cabinet who try to please and not humiliate their leader. A further trait of narcissistic personalities is that they love conflict and division as this keeps them under control. The more destabilisation and antagonism, the better. AMLO since the start of his presidency has been setting states against states for resources and for pandemic responses, instead of coordinating a national response. He is also vindictive: playing favourites with those governors who follow him and punishing those that oppose him.

Deep down, narcissistic leaders are weak. AMLO is genuinely afraid to lead. He simply cannot bring himself to make decisions that are solely his. This is why he has relied on public referendums and consultations to cancel projects or advance legislation. He will not take any responsibility if something goes wrong: It was not him who decided, it was the people, blame them. He inherited a broken system that cannot be fixed during his term, blame the previous administrations, not him.

AMLO is a prime example of a textbook narcissist, unfortunately he is not the only one: Donald Trump, Boris Johnson, Recep Erdogan, Rodrigo Duterte are only a few more examples of what seems to be a normalised behaviour in contemporary politics. Every aspect of AMLO’s and other leaders presidencies have been heavily marked by their psychopathology. Narcissism, however, does not allow proper and realistic self-assessment, self-criticism, and self-appreciation therefore such leaders will simply ignore the red flags in their administration and have no clue how despicably and disgracefully they will be remembered.

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Minor Successes And The Coronavirus Disaster: Is Trump A Dead Duck?

Dr. Arshad M. Khan

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That reminder from the Bible, ‘He who is without sin, let him cast the first stone’ may give us pause — but not journalists who by all appearances assume exemption.  And the stones certainly bruise.

Evidence for the bruises lies in the latest poll numbers.  Overall, Joe Biden leads Donald Trump 50 to 43 percent, a margin that has continued to increase since January.  It is also considerably wider than the few points lead Hillary Clinton had over Trump four years ago.  It gets worse for Trump. 

In the industrial states of Michigan and Pennsylvania, which Trump in 2016 won by razor thin margins, he is losing by over 4 percent.  Also key to his victory was Wisconsin where, despite his success in getting dairy products into Canada, he is behind by a substantial 7 percent.  Key states Ohio and Florida are also going for the Democrats.

Trump was not doing so badly until the coronavirus struck and during the course of his news conferences he displayed an uncaring persona larded with incompetence.  Dr. Anthony Fauci, the man he fired for correcting Trumpian exaggerations became a hero and Trump the bully.

If that bullying nature won him small rewards with allies, he hit an impasse with China and Iran … while bringing the two closer to each other.  Then there is the border wall, a sore point for our southern neighbor Mexico.  President Lopez Obrador made sure the subject never came up at the July meeting with Trump,   Thus Mexico is not paying for it so far and will not be in the foreseeable future.

The United Arab Emirates, a conglomeration of what used to be the Trucial States under British hegemony. have agreed to formalize its already fairly close relations with Israel.  In return, Israel has postponed plans to annex the West Bank.  Whether or not it is in Israel’s long term interest to do so is a debatable question because it provides much more powerful ammunition to its critics who already accuse it of becoming an apartheid regime.  However, it had become Prime Minister Netanyahu’s sop to the right wing who will have to wait.  Of course, the reality is that Israel is already the de facto ruler.

If Mr. Trump was crowing about the agreement signed on September 15, although it is akin to someone signing an agreement with Puerto Rico while the United States remains aloof.  As a postscript, the little island of Bahrain also signed a peace deal with Israel.  Bahrain has had its own problems in that a Sunni sheikh rules a Shia populace.  When the Shia had had enough, Saudi and UAE troops were used to end the rebellion.  Bahrain is thus indebted to the UAE.

How many among voters will know the real value of these historic (according to Trump) deals particularly when he starts twittering his accomplishments as the election nears?

There things stand.  As they say, there is nothing worse than peaking too early.  Bettors are still favoring Trump with their money.  The longer anyone has been in politics the more there is to mine, and for an opponent to use to his/her advantage.  Time it seems is on Trump’s side.  

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