Democracy
A Proposal for a New Constitution
For the United States
By Brian Rush
Copyright 2011 Brian Rush
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America Needs a New Constitution
Thomas Jefferson was right. Mao Tze-Tung was wrong. Power does not flow from the barrel of a gun. It is derived from the consent of the governed.
All government is an exercise in arriving at the consent of the governed, in making and implementing collective decisions. All citizens must, directly or indirectly, by default if not otherwise, contribute to the decisions and give their assent or dissent to any proposal. Consent need not be unanimous nor even, necessarily, the will of a majority, but at minimum must have a sufficient gravity in its affirming portion of the collective will that the ayes carry and the people at least tacitly affirm the decision.
Our own American system of government – in theory – arrives at the consent of the governed by proxy. But it is also designed to weigh the votes of some citizens more heavily than those of others. The people could not govern directly, at the time of the Constitution’s ratification, due to the languid pace of communication, which traveled at the speed of a horse, or of a sailing ship. Also, the prominent citizens of the time feared an excess of democracy on the grounds that it might deprive them of their property and privileges. And so they crafted a complicated system of decision-making in which representatives elected by the people debated in one legislative chamber, while elite representatives of the state governments did the same in another, and both had to agree before any legislation was passed. The president was initially chosen by a body of electors who were uniformly wealthy and prominent men. We still retain the ghost of that system, although today the Electoral College is expected to conform to the will of the voters. It was all a put-together, a compromise between the people’s demand for democracy and the elite’s fear of it, between the interests of large states and small ones, slave-owners and slavery’s critics, planters and merchants.
It is a system given more in the way of sentimental reverence in this country than it truly deserves. It has survived more or less intact for more than two hundred years, but aside from that its record of success is frankly unimpressive. It broke down almost fatally barely 70 years after it began, dividing the nation in two and plunging it into a ruinous civil war. Crucial reforms have foundered on the rocks of selfish interest and the fear of change far too often. Citizens have suffered from racial prejudice or economic folly and greed when a healthier system would have cured these ills. Sixty-three years after the Civil War ended, another disaster struck in the form of an economic collapse that should have been wholly preventable, but was not prevented because of the skewed way that America makes its collective decisions, so easily perverted by the greed of the powerful. For the same reason, the nation stumbled through the Great Depression unable to take the action that would cure it until another catastrophe, World War II, forced the government’s hand. A period of prosperity followed the war, but was undermined within a few decades as, yet again, our governing system gave itself over to the unworthy service of private greed.
As much as Americans reflexively admire and adore the Constitution on which our government is founded, it is reasonable to ask ourselves – especially now that we are once again faced with its inability to come to grips with yet another crisis – whether or not a better design could be achieved.
The people want a single-payer system for health care, but we do not have one – indeed, that option was taken off the table at the start of health-care reform discussions in Congress in 2009 – because the health-insurance industry objected. The people want higher taxes on the rich to help balance the budget, but the government is incapable of moving that direction because it is too beholden to the people who would pay the taxes. The people are skeptical of the benefits of free trade agreements, and want to retain jobs in the U.S. rather than shipping them abroad, but more and more free trade agreements keep happening and outsourcing becomes more and more prevalent. Time after time, on issue after issue, our elected officials serve the interests of those who pay their campaign expenses, not of those who vote them into office.
When government no longer receives the consent of the governed, it ceases to govern. In the extreme, when the people become wholly fed up with its venality or incompetence, the government falls. We are not at that stage in the United States yet, but we are not so far from it, either. And so, as we face the breakdown of our democracy, as we confront a government unable to act in the interests of the people because its elected officials are corrupted by corporate money, as we ponder the calamitous reality of a broken economy, an overextended empire, an unsustainable way of life, and a needlessly hostile world, it is time to reassess what the framers of the Constitution accomplished two centuries ago, and to see whether we cannot improve on what they did.
An Excess of Aristocracy, a Dearth of Democracy
Governments, said Mr. Jefferson, are created to secure the rights of the people, deriving their just powers from the consent of the governed – of the people, that is. That being so, we must conclude that the United States of America was designed from the beginning to fail, and to become unjust. For in fear for their property and privilege, the rich men who crafted the Constitution deliberately limited and muted the people’s voice in the government.
The legislative branch, Congress, is only half-democratic by design, and has become wholly undemocratic due to something unforeseen. The by-design portion is represented by the Senate, which gives citizens of small states a bigger vote in Congress than those of large and populous ones; still, this is a slight improvement – or would be were Congress not wholly corrupt and compromised – over the original design in which Senators were elected by the state legislators rather than the state’s voters.
The unforeseen factor is the enormous and increasing demand for money to spend on election campaigns, without which no Congressman can be elected. The insatiable need of every Congressman for campaign funds gives veto power over all legislation to wealthy individuals and corporations that feed this bottomless hunger. A Congressman who seriously threatens to curb the rapacity of America’s financial elite must face the prospect of being denied funds to run his reelection campaign and so losing his seat.
Every Congressman must whore himself to some source of revenue or other. Our legislature, at least one-half of which is, in theory, supposed to represent the will of the people, has become the servant of privilege. Because of this, we have a plutocracy or an aristocracy, not a democracy at all.
What’s the cure for this? The usual recommendation is some sort of campaign finance reform, limitation of contributions that may be made by individuals or corporations, transparency and disclosure of the source of funds, or some scheme of public financing or another. The problem with this idea, other than the difficulty of getting anything that would actually work through a corrupt Congress and past an equally-plutocratic Supreme Court, is that it’s always possible for clever individuals to get around even the best-designed restraints.
There’s a simple way to cut through this Gordian knot: eliminate Congress altogether, or perhaps reduce it to an advisory body (since legislative expertise is arguably something we would not want to altogether do without). Replace Congress with direct democracy, laws passed or ratified by the people in direct election. If the rich and corporations wish to offer bribes to the people, well, let them.
Direct democracy is something that we have been taught to see as unworkable, utopian, impossible. Or worse, we have been taught to see it as a threat to the rights of minorities, a recipe for mob rule, a despotism and tyranny of the majority leading to reigns of terror and ultimately to being supplanted by a dictator. The specter of the French Revolution is raised, heads rolling beneath the guillotine, until a Napoleon emerges from the chaos to restore order under an iron heel.
These objections to the idea must be addressed before discussing how to implement it, so let us address them.
First: direct democracy is not unworkable. It has been tried successfully in the past on a small scale. A false version of it made the laws in ancient Rome for centuries, and a truer embodiment did so in ancient Athens. Direct democracy is used today in many groups, from unions to churches to protest movements. Many states in the United States have direct-democracy provisions for passing or repealing legislation in the petition or initiative process.
There have in the past been problems attempting to implement direct democracy on a large scale, or on a regular basis to completely replace the professional legislature. These however are purely technical problems to which the Internet provides a solution. Collective decisions may be made no faster than the speed of communication. Before the Internet, communication has never been fast enough to allow direct democracy to work on a nationwide scale. It was not possible either for the people to be informed about an issue or to come together and vote on it with sufficient rapidity and flexibility to allow direct democracy to work. Today, direct democracy would require universal Internet access, but we aren’t far from that now and it would not take long to complete the task, with public WyFy stations and public computers if nothing else.
What of the idea that direct democracy is a recipe for chaos, intolerance, the tyranny of the majority, oppression of minorities?
An examination of direct democracies in history compared to other forms of government shows this fear to be without foundation. The few examples of direct democracy in history do not present examples of intolerance to minorities that are any worse than the worst examples of other forms of government. The most horrid example of mistreatment of minorities in all history was surely Nazi Germany, which was no democracy at all. Monarchies were not that much better, on the average. Nor is the history of the United States, a republic with democratic elements, particularly reassuring about the benignity of republics toward minorities. This nation allowed an entire race of people to be enslaved, a practice that cost nearly a million casualties in a civil war to finally eradicate. It subjected that same race of people to second-class citizen status for a century after cutting off its chains. It subjected Native Americans to oppression and brutality that runs across our memory today like a scar of shame. It has erupted with nativist bigotry, as with pustules, from time to time, from the panic about immigrants from Europe in the nineteenth century to the internment of Japanese-Americans in World War II to the current spasm of hate against Muslims and Hispanics.
History shows that restraining democracy in no way protects minorities from hostility.
This is not to say that direct democracy would not present a danger of bigotry against minorities, but only that this danger is universal and does not depend on type of government. Direct democracy would present as much danger of this ugliness, probably, as other forms of government, including the one we have. But it would not present any more danger of it, if accompanied by the same tempering restraints that we apply today to government by proxy.
What about the supposed danger of misrule, chaos, breakdown of government, of anarchy leading to dictatorship? We have no example of a direct democracy that actually suffered this fate. The First French Republic, whatever else it may have been, was no direct democracy. It often happens that a newly-established government shows instabilities and vulnerabilities, and that a country used to autocracy has a difficult time making a transition to democracy. But this is a characteristic of new, revolutionary governments in general, not of democracies in particular.
Replacing Congress with a direct democracy would not imply losing the Bill of Rights. Those protections are found in a different part of the Constitution than Article II. Americans cherish that part of the Constitution more than any other, and would not be willing to abolish it, nor should we.
How Direct Democracy Would Work
Besides universal Internet access, direct democracy – let’s call it the People’s Virtual Assembly – would require a dedicated, highly secure website and a defined procedure for passing legislation. The following is purely a hypothetical example of a way to make it work. It is not necessarily the best method that could be devised, but will suffice to illustrate that it is not impossible.
The security of the web site would not only be against hacking and to protect privacy of submitted information, but also to ensure against repeat voting. Attached to it would be extensive research tools, including a complete library of laws and court cases, with a good search engine, and access to demographic, economic, historical and scientific information as well.
The People’s Assembly website might have:
1) A Proposal Page. Here any citizen can propose legislation for vote. Other citizens could “second” legislative proposals (once per voter per proposal) and make comments on the proposals. Comments would be signed by citizens automatically; no anonymous comments would be allowed, and no comments by non-citizens. Upon receiving a minimum number of seconds (let’s say a million), the proposal would move to the Bill Page. Proposals failing to receive the required number of endorsements might be deleted after a period of time (say after ninety days) or sent to a searchable archive that any citizen might reference for ideas. The software that runs the Proposal Page would be able to recognize when a proposal was similar to something that already existed in law, and when multiple proposals covered similar subjects. If a citizen proposed a law that is similar to an existing law, he would be given the option of either declining to propose the law, or including a notice that this amends existing legislation, with citations. (A proposal identical to existing law would not be allowed.) If a citizen proposed something similar to another proposal, he would be notified of this and given the option of declining to post his proposal, going ahead with it, or, if the other proposal had already moved to the Bill Page, proposing it as an amendment rather than a new bill. The same software could also recognize when a proposal appeared to be unconstitutional, and would so advise the proposer, who would have the option of withdrawing it or of modifying it before submission.
2) A Bill Page. Here proposals that have received endorsement by the prescribed number of citizens, or that are forwarded to the people for ratification by Congress, are presented to the people for debate, discussion, and amendment. Discussion is on an open forum attached to the bill itself. Amendments to the bills can be proposed by any citizen. Upon receiving sufficient endorsement by other citizens (again let’s say a million), an amendment is attached to the bill as a sub-proposal. At any time, a citizen can also propose bringing the bill for a vote. Upon receiving enough such endorsements (perhaps five million), and a minimum time having elapsed (at least thirty days, and sixty days might make more sense), the bill would be moved to the Voting Page.
3) The Voting Page. Each bill that has met the conditions for being brought for a vote as described above goes onto the Voting Page, together with all comments and all attached amendments. Further comments may be made, but at this point no more amendments may be proposed. At any time, a citizen may vote on the proposed law and its amendments. A vote on an amendment to a bill must be either yes or no. A vote on the bill itself may be yes, no, or a conditional yes that depends on one or more of the proposed amendments also being passed or else on them being defeated. A bill must be open for voting for at least ninety days, or until a majority of the citizens have voted either yes or no, whichever comes first. In order to become law, the bill must receive more yes votes than no votes, and the approval of at least 30% of the voters. Amendments to the bill must receive more yes than no votes and the approval of at least 25% of the voters. A bill that meets this requirement goes to the President, who may sign it or veto it. A vetoed bill returns to the Voting Page and must receive the yes votes of two-thirds of the votes received, which must total no less than 40% of the voters, in order to override the President’s veto.
For example, suppose that you, a citizen and a voter, are concerned about outsourcing of manufacturing operations to third-world countries with oppressed labor forces. After thinking the matter over for a while and discussing it with your friends, you decide that you would like to see the government enact a tariff on imports of manufactured goods from foreign countries with prevailing wages that are 50% of American wages in the same industry or less, the amount of the tariff to be 75% of the wage differential, so that if a country has garment workers that make ten percent of prevailing American wages in the garment industry, for example, the tariff would be 75% of 90% or 67.5%.
You submit this proposal on the Proposal Page, and the software informs you that there is no similar bill currently proposed and no similar law currently in force. Discussion ensues and over time your proposal receives enough endorsements that it moves to the Bill Page. More discussion follows. Someone proposes an amendment raising the tariff to 100% of the wage differential. You and others point out that there are costs associated with producing goods in foreign countries and shipping them to the U.S., so the wage differential doesn’t have to be completely matched by the tariff and that might not be reasonable. The amendment does not receive enough endorsements and is not attached to the bill. Another amendment is proposed that would bring the tariff up for automatic review by the President every three months, and require revising the tariff if the wage differential changes. You endorse this amendment, and enough others do that it is attached to the bill. Another amendment is proposed that would allow the President to make exceptions for a country that, in his judgment, is making a good-faith effort to protect workers’ rights. You argue against this amendment but it receives enough endorsements to also be attached to the bill. Eventually the bill, with these two amendments, receives enough endorsements that it moves to the Voting Page.
You continue arguing in favor of the bill itself, in favor of the first amendment, and against the second amendment. You cast your vote for the bill, for the first amendment, and against the second amendment. On reflection, you decide not to make your vote for the bill conditional either on the first amendment also passing or the second amendment being defeated; you would rather see the bill become law even if it is not as perfect as it could be. Over time, the bill acquires enough votes to pass with both of the proposed amendments.
Assuming the new Constitution retains Congress as an advisory body, bills could be proposed by Congress that would go straight to the Bill Page rather than having to go through the same process as for citizen proposals. However, all proposals from Congress would still have to meet the approval of the Assembly before they could become law, and also Congress could not block highly desired legislation by refusing to act upon it. As this would remove the entire incentive for bribing legislators with campaign contributions, that problem would be solved once and for all.
Other Changes to the Constitution
The undemocratic nature of Congress and its vulnerability to corruption are the worst flaws in the Constitution, but there are a number of other points that could use attention. The most obvious is the Electoral College method of electing the President and Vice President. Replacing this with direct election is a reform long past due.
Article III might need to be changed making ratification of Presidential court appointments by the Assembly rather than the Senate – although perhaps not. This might be an area where legal expertise would be more important than democracy. If this retained power is found to provoke corruption in the Senate that could be changed later.
Do we wish to keep a federal system as opposed to a unitary government? There are advantages to this, so let’s assume the answer is yes. That being so, the enumerated powers that Article II, Section 8, now grants to Congress can be amended to give the same powers to the Assembly. The People’s Assembly could in that case not make any laws that the Constitution does not currently empower Congress to make. The same would be true of restrictions currently imposed on Congress, including and especially those in the Bill of Rights.
In order to encourage the state governments to adopt direct democracy as well, the passage in Article IV which guarantees all of the states a republican form of government should be changed to read “republican or democratic.”
Article V should be amended so that amendments to the Constitution can be proposed by a 2/3 vote of the Assembly rather than a 2/3 vote of both houses of Congress. The other method, amendments proposed by constitutional convention, could remain unchanged, and amendments would still require ratification by ¾ of the states, although state Assemblies should be able to ratify the amendment in place of the state legislature.
Making the Change
Making the transition from the corrupt representative republic we have now to a direct democracy should proceed in stages.
The first stage would be to create the People’s Virtual Assembly as a shadow legislature. Even though acts passed by the Assembly would have no legal force, creating it would accomplish several purposes. It would give us a chance to work the kinks out of the procedures and software and deal with any unforeseen complications. It would also be a great way to present the idea to the people and attract participation.
Once the Assembly goes on line, all acts of Congress would be referred to the Bill Page as if the Assembly’s ratification were required for passage. Although acts of Congress voted down by the Assembly would still have the force of law, the fact that they did not represent the will of the people would become clear.
Over time, the body of shadow law enacted by the Assembly would diverge from the laws enacted by the corrupt Congress in ways that could not be ignored. This would be an enormously effective propaganda tool for illustrating just how corrupt our government has become.
Eventually, of course, it would be necessary to make the revolutionary change abolishing Congress as holder of the legislative power and replacing it with the Assembly, and amending the Constitution in the other ways suggested above. There are two ways to do this, legally and extra-legally. The extra-legal approach needs no elaboration; we have seen plenty of examples in the fall of foreign tyrannies from the dictatorships in the Middle East to Marcos in the Philippines to the Soviet Union and its satellites. If there is no other way than this to create for ourselves government of, by, and for the people, then we should not hesitate to follow Jefferson’s prescription: that when a government becomes injurious to the rights of the people, it is incumbent upon the people to abolish it and to replace it with governing structures more suitable to their needs.
However, the U.S. Constitution itself provides another way, and it would be preferable to use that way if we can. It would remove all doubts as to legitimacy of the new government, for it would arise from a method of fundamental change written into the old one.
If two-thirds of the states can be persuaded to call for a constitutional convention to propose amendments, Congress is required by law to call such a convention. It would then be incumbent upon us to ensure that the delegates to this convention propose a new Constitution along the lines suggested above, as modified by better ideas or greater experience between now and when that time comes. The proposed new Constitution, upon ratification by three-quarters of the states, would then legally replace the old one.
This would be a more tedious and difficult procedure than simply overthrowing our corrupt government by revolution, but the benefits of doing it this way make it worth the attempt in my opinion. Revolution is always a chaotic procedure. We might hope that the existence of a shadow Assembly prior to the deed might reduce the chaos, but the destabilization of a government is always a chancy thing, and provokes a backlash against its replacement.
But however we go about it, we should always remember one thing. Governments derive their powers, just and unjust alike, from the consent of the governed. The United States government in its current corrupt manifestation endures only so long as the people tolerate it. When the people remove that tolerance, it will fall.
Our government has shown itself unable to protect the rights of the people, and indeed has become a positive and malevolent threat to those rights. It is captive, partly by original design and partly by malicious corruption, to a class of wealthy and privileged individuals who care no more for the well-being of the nation than a man does for insects crushed under his shoes. That has never been more obvious than it is today. To abolish it and replace it with a government that genuinely is of, by, and for the people, a democratic government that represents the people’s will and implements in law the people’s collective decision, is not just our right as Americans. It is our duty.
The power is ours. It’s time we remembered that.