Much of the world is in shock that Donald Trump will be the next President of the United States. This week CEFA decided to take a closer look at the similarities between the Australian and the US constitutions and our representative democracies. A recent Essential Poll shows very low trust in our elected governments and politicians.

We witnessed unpredictable voting at Australia’s last federal election in July. The seats that changed were in areas that are doing it tough. No one predicted that the Liberals would lose all their seats in Tasmania. But this is one of the places where people are having a difficult time finding a job. Many people don’t think they’re being listened to and when they do finally get their say at the ballot box they make a decision that is unexpected.

So what happened on 8 November 2016?

The American people’s vote has been cast. The pollsters got it wrong. On election day CEFA staff witnessed people on the streets of Sydney shaking their heads in disbelief. Remember how the many people freaked out after Brexit and then the sky didn’t fall in? Remember the hysterics after the closeness of the Federal election in July with some media screaming about a constitutional crisis for a couple of days? Markets went into meltdown after the unexpected Trump win, but they have basically recovered.

We can expect that, like in Australia after elections, the US Constitution will help to unite Americans as they begin a peaceful transition to a new President and Government.

The Constitution as a unifying document

There are a lot of differences between Australia and the US. However, both our countries are constitutional democracies and this means that we share similar democratic values. In Donald Trump’s victory speech he emphasises the need to unify their country:

I pledge to every citizen of our land that I will be president for all Americans…. For those who have chosen not to support me in the past….I'm reaching out to you for your guidance and your help so that we can work together and unify our great country. As I've said from the beginning, ours was not a campaign but rather an incredible and great movement….comprised of Americans from all races, religions, backgrounds, and beliefs, who want and expect our government to serve the people, and serve the people it will.

Hillary Clinton pointed to the peaceful transfer of power and democratic constitutional values in her concession speech:

Our constitutional democracy enshrines the peaceful transfer of power and we don’t just respect that – we cherish it. It also enshrines other things; the rule of law, the principle that we are all equal in rights and dignity, freedom of worship and expression. We respect and cherish these values too and we must defend them.

Now – and let me add, our constitutional democracy demands our participation, not just every four years but all the time. So let’s do all we can to keep advancing the causes and values we all hold dear: making our economy work for everyone not just those at the top, protecting our country and protecting our planet and breaking down all the barriers that hold any American back from achieving their dreams

The election campaign was pretty vitriolic. But participation in democracy should not just be in an election at the ballot box. People need to be involved at other times too. President Barack Obama made a statement a little bit later, urging Americans to unite:

One thing you realize quickly in this job is that the presidency and the vice presidency is bigger than any of us. So I have instructed my team to follow the example that President Bush's team set eight years ago, and work as hard as we can to make sure that this is a successful transition for the president-elect.

Because we are now all rooting for his success in uniting and leading the country. The peaceful transition of power is one of the hallmarks of our democracy. And over the next few months, we are going to show that to the world.

In the days since the election there have been protest rallies by Clinton supporters. Some media are stating that these protesters are feeling the anger that Trump supporters were feeling before the election. Both Clinton and Obama are trying to reassure these people that this is how democracy works. We all have to respect the will of the people at the ballot box. Fortunately in the US there is a bit of time as the transition from one President to the next occurs over several months. Trump will not become President until 20 January 2017.  

Trust in democracy

It was a very rough election campaign and lots of horrible things were said. People may not like Donald Trump, but most of them understand the system will work as it has in the past. And that system is outlined in the United States Constitution, in which they have a lot of pride.

Here is a quote from someone who voted for Donald Trump:

I cried when I left the polling location because I don’t like Trump at all. I was deeply saddened to vote for him….I wish there had been another conservative choice without simply throwing away my vote….However, he is only a four-year investment and I am trusting in the checks and balances of our country to prevent him and his poor-judgment from damaging the country too much.

What are constitutional checks and balances?

The first big one is that the US system of Government (and ours) has a strong separation of powers. The US Constitution Center states that the Constitution is the fundamental framework of America’s system of government. And that the Constitution:

Separates the powers of government into three branches: the legislative branch, which makes the laws; the executive branch, which executes the laws; and the judicial branch, which interprets the laws. [It] sets up a system of checks and balances that ensures no one branch has too much power.

Donald Trump as the President is the head of the Executive. But to create new laws, legislation must first pass through both houses of their congress (like how legislation must pass through both houses of our parliament). And sure, yes, both houses are Republican controlled. But they are not there just to rubber stamp things, they provide a check on the Executive power. Just like how our Parliament has a series of committees and provides for submissions of advice from experts, etc, so does the US Congress. Plus, Trump’s not exactly mates with many Republicans and the US party system is not like Australia’s, where parties always or nearly always vote together.

If some of the things that Trump has campaigned upon sound a bit iffy, then they might not get through the Congress. If new legislation that has been passed by both houses of Congress is thought to be unconstitutional, there is an opportunity to challenge in their Supreme Court. This is another check on the power of the Executive and the Legislature.

By now you’re probably saying something about Trump’s choosing of the next Supreme Court Justice. Sure, he gets to nominate the new Justice, but the Senate has to consent. The Republicans only have a one seat majority in the Senate and with one seat heading to a run-off they might end up with two. But since the parties don’t always vote together in the US, there will need to be some negotiations with the Senate on the nomination of a new Justice. And once a Justice is appointed to the US Supreme Court they are there for life, meaning their independence is protected.

You can read an article we published a few weeks ago to learn a bit more about the separation of powers and Trump’s threats to jail Clinton.

Compulsory v non-compulsory voting

Only just over 50% of eligible Americans voted at the 2016 US election and it might make you wonder whether compulsory voting (like we have in Australia) could have made any difference to the result. Some are wondering whether a President who only received 25% of the eligible votes is less valid.

Australians might think so, but in the US they vehemently protect their right not to vote. This is a major difference in our democratic values. In Australia voting is a privilege, but it is also a responsibility. Each and every eligible voter has to turn up on Election Day and make a choice. It is easier to accept a result that you did not vote for if you know that everyone has had their say.

Also in Australia our voting system means we have the opportunity to preference candidates in the order we would like them elected. The American ‘winner takes all’ approach means there is no preferencing. This has led to the situation in Louisiana, where no candidate in the Senate has received enough votes to win and they have to go to another run-off election.

Electoral Colleges

It is looking like Hillary Clinton won the popular vote, meaning more people voted for her (there will be a bit more counting to do). But the Electoral College system of the US, which is enshrined in the Constitution means that Donald Trump won the election.

For Australians the Electoral College system seems bizarre. The people of each State vote, but it is not a direct vote. It is a system of delegates. Each State has the same number of delegates or electors as the number of representatives they have in Congress.

Let’s take the State of Texas as an example. They have 36 Members in the House of Representatives and two Senators, meaning that they have a total of 38 Electoral College votes. Trump won just over 52% of the people’s vote in Texas, however he got 100% of the Electoral College votes, the full 38 of that State.

Maine and Nebraska are the only two states which award only two of their votes to the popular vote winner, and the rest to the winners of their congressional districts (like our electorates).

Constitutional education is the key

The US Constitution unites their nation and outlines how, when and if Trump’s proposed pre-election policies can be implemented. The Constitution as the rulebook keeps US democracy strong and ensures a system of checks and balances on Government processes. What we have witnessed in America is the power of the individual voter. CEFA CEO Kerry Jones this week stated:

The 2016 US election was a powerful display of the importance of each and every voter in a Constitutional representative democracy. We saw a similar unexpected people’s protest vote in Brexit our Federal election. Disturbingly, trust in democracy is at an all-time low. We must urgently reverse this trend through education. We must encourage our leaders to realise Constitutional education for all Australians will improve trust in our elected Governments.

If you want to help us CEFA establish the educational Australian Constitution Centre, now is the time add your voice. Please contact us at info@cefa.org.au and please let your friends and family know about CEFA’s important educational initiatives.