The storming of the Capitol in Washington DC, on January 6th, by a cult-like deranged mob of President Donald Trump’s supporters, while the rest of the world looked on in utter shock and complete disbelief, no doubt caused all Guyanese to recall the extended spate of confusion following our March 2020 general elections.
In the wake of the ensuing fallout, there had been the public outcry for the removal of Mr Trump during the final days of his term in the Oval Office, either by the invoking of the 25th Amendment to the US Constitution or through an impeachment trial by the Senate. As Vice President Mike Pence shied away from taking the former course of action, the Democrats pursued the latter tack. What exactly is the 25th Amendment, and why is it of relevance to Guyanese?
The framers of the American Constitution met in the summer of 1787 in Philadelphia, Pennsylvania at the Constitutional Convention to amend the Articles of Confederation (1781-1789), the country’s first written constitution. The 55 delegates from the then 13 states debated long and arduously on varying subjects ranging from states’ rights to slavery and representation. The architects of the final political compromise had the foresight to place limits on the powers of a central government and secure the liberty of its citizens. The doctrine of the separation of powers of the legislative, executive and judicial branches of government and the system of checks and balances of each offshoot against the others were specifically written to strike a balance between authority and liberty; the essence of Constitutional Law.
The main text of the oldest written constitution, still in use, comprises seven articles, the fifth of which deals specifically with amending the constitution. Article V details the stringent procedures for the proposal and ratification for amendments to the constitution, which having been ratified by nine states in June 1788 (as necessitated by Article VII), has had only 27 amendments, thus far. Of these amendments, 24 were ratified within three years of their initial proposal, following the pathway as defined by the authors of the constitution.
The 25th Amendment sets forth provisions for the orderly transfer of power and process for replacing the president and vice-president should they die in office, resign, are removed by impeachment, or are unable to serve due to physical or mental incapacitation. Prior to the passing of the amendment in 1967, following much debate, the constitution had been vague on the subject, and following the death of President William Henry Harrison within a month of assuming office in 1841, this oversight was exposed. In a bold move, Vice President John Tyler settled the debate over succession by deciding on his own to have a judge administer the oath of president, thereby establishing a precedent that would stand fast during the death of six other presidents. The need for an amendment was further exposed by the illnesses suffered by President Dwight Eisenhower during his terms in office in the 1950s and the question of who would lead the nation following the shooting of President John Kennedy in 1963. In the latter case, there was much confusion as to who would serve should Kennedy have survived the assassination in a semi-conscious or otherwise incapacitated state. The 25th Amendment has been used six times, most notably three times during and in the aftermath of the Watergate scandal, but never to remove a sitting president. Scholars have argued that the amendment does not establish a process for determining when a president is physically or mentally unable to continue serving as president. The avenue of the 25th Amendment for the removal of Mr Trump had been floated during his tumultuous first year in office when his erratic behaviour drew the attention of his critics and those working close to him.
Ross Douthat, a prominent conservative and columnist, writing in the New York Times in May 2017, suggested that the 25th Amendment was precisely the solution for removing Mr Trump. “The Trump situation is not exactly the sort that the amendment’s Cold War-era designers were envisioning. He has not endured an assassination attempt or suffered a stroke or fallen prey to Alzheimer’s. But his incapacity to really govern, to truly execute the serious duties that fall to him to carry out, is nevertheless testified to daily — not by his enemies or external critics, but by precisely the men and women whom the Constitution asks to stand in judgment on him, the men and women who serve around him in the White House and the cabinet,” he wrote.
The 25,000-odd lies, spouted by the unstable Mr Trump during his time in the White House, as documented by the Washington Post, and their use in the build up to the debacle which occurred at the Capitol are a grave warning to the potential damage that can be created by unchecked misuse of power. Every election season here in Guyana, we are inundated with promises by the opposition to address the presidential powers of the current Guyana Constitution, and despite two changes in government in the last three decades, we are yet to see any significant movement in that direction. As we have witnessed with the American Constitution, even with much heated debate, planning and foresight by brilliant minds, it’s almost impossible to prepare for all permutations.
Perhaps in the near future the US Congress might entertain a bill similar to the one proposed by a group of Democrats who previously sought to remove Mr Trump via the 25th Amendment. The legislation would have created an 11-member Oversight Committee on Presidential Capacity to medically examine the president and evaluate his mental and physical faculties.
What changes can we expect here in Guyana? The usual doddering by the establishment and pointing to the fact that not all amendments can take place in a swift manner, like for instance, the 26th Amendment, which deals with voting age, and was proposed and ratified in 100 days in 1971. The powers that be are more likely to cite one of the original 12 amendments proposed by Congress in 1789, which prohibited mid-term changes in compensation for members of Congress and was finally ratified as the 27th Amendment on May 5, 1992, 202 years and 223 days later.
Patience is a virtue.
