In pursuit of liberty and justice for all
Even with the progress our society has made in 221 years since the Philadelphia Constitutional Convention of 1787, we are still far from achieving the lofty goals laid out in the Preamble, or reiterated in Lincoln’s Gettysburg Address (“government of the people, by the people and for the people”) or the Pledge of Allegiance (“liberty and justice for all”). Our government has been usurped by corporate lobbyists, and a number of other special interest groups, none of which are synonymous with “we the people.” I contend that the only way to achieve these goals is for power to rest with “all” rather than the select few. This is the essence of democracy, and it is why I am an advocate for a more democratic system of governance.
One of the arguments against democracy is that it can be inefficient. However, there is also an argument to be made that democracy can be more efficient than any other form of government in implementing policy and law. This is because when there is broader participation in making a decision, there is also greater acceptance of the decision that is eventually reached, making implementation of the law or policy more efficient and effective.
Another argument often leveled against democracy is that it can lead to tyranny by the majority; however, a truly democratic process involves all perspectives in any debate and ensures that no viewpoint is left out, thus making it less likely that any minority will be tyrannized by the result. In fact, it is a system such as our current two-party system with winner-take-all districts that leaves significant segments of the population out of virtually every decision and results in the marginalization of many minorities.
Of course, marginalization, especially when it becomes systematic, leads to social degradation, which hurts even those who benefit politically and/or economically from the inequalities of the system.
Thus, it is in everyone’s best long-term interest to pursue democracy and justice.
To that end, I suggest that we need to change the following undemocratic aspects of our constitution.
I. The Presidency
First and foremost, we must abolish the most undemocratic aspect of our political system. In the presidency, our constitution gives one single individual tremendous power, including the power to:
- veto legislation passed by both houses of Congress
- appoint all federal judges to any vacancies occurring during his term
- appoint and direct the heads of the various executive departments, as well as ambassadors
- be the chief commander of all national military forces
- issue Executive Orders
These are not the sum of all powers of the president, but they are sufficient to point out the tremendous power invested in one individual, who is not required to deliberate with anyone in reaching decisions on these matters. Indeed, there are checks on three of these, as Congress can override a veto, and the Senate must confirm appointments of judges and executive officers. However, empirical evidence shows us that presidential vetoes are only overridden 5% of the time. Worse, consider the case of Executive Orders. If Congress were to attempt to supersede an executive order by passing a law, the president would have the power to veto that bill and force Congress to achieve a supermajority in both houses. Obviously, the president has a stronger position in regard to legislation than does the legislative branch of government. That is unacceptable in even a pseudo-democracy such as we have. Furthermore, while the Senate may refuse to confirm an appointee, it has no power to direct the president’s next choice, and if they end their session without confirming an appointment, the president can make a “recess appointment” thereby temporarily sidestepping the need for Senate confirmation. Thus, in all these cases, the power of the president far outweighs the power of Congress. And while there are problems with how we elect our Congress that make it less than ideally democratic, it is nevertheless a far more democratic body than the office of the president, held by a single individual. If one of these should have more power, it should be Congress.
In the place of the president, we should create some sort of executive council. Perhaps we might retain the term Cabinet for the interdepartmental federal executive council. Rather than a nationwide election in which the issues are subverted by personality and marketing, we should institute a more deliberative but representative process for selecting those who will serve in the top offices of the executive. Furthermore, rather than individuals serving as the chief officers of each department (Secretaries), I suggest that each department should have a small deliberative body of four or five individuals making executive decisions (Secretariats?). Each of these Secretariats should be chosen in a way that will allow for some degree of proportional representation of the American population in each department rather than the one-party executive we have today. One member of each Secretariat should serve on the Cabinet, and that responsibility should rotate among the members of each Secretariat every year, so that no individual will have too much influence on the federal executive. The Cabinet should be a body that will deliberate on behalf of the American people with continuity from one to the next, instead of being dominated by any individual or party with distinct “administrations” and often dramatic shifts in policy between them.
In terms of the selection process, I suggest some sort of random selection process of citizens that will guarantee that every political viewpoint, age group, gender and gender identity, race, sexual preference, and socioeconomic class will be represented proportionally. These citizens would then evaluate candidates for executive and judicial positions. I suggest that they be divided into three groups. The first and largest group would evaluate applications and resumes of candidates, and refer the best choices to the second group, who would nominate the requisite number of candidates for each position, and rank the others referred to them as alternates. Then the third group would evaluate those nominated by the second group, confirming or denying each, and considering alternates for each candidate denied in the order ranked by the second group.
II. The Federal Judiciary
Second, aside from the presidency, the least democratic aspect of our government is that our federal judges serve life terms. Of course, part of the problem with the federal judiciary is also that they are appointed by the president. If we adopted the changes above, this aspect would be less egregious, but I still agree with those constitutional scholars who advocate a single fixed term for federal judges.
One of the primary reasons for life terms for federal judges was to avoid their being dependent on the politics of the day for their positions. Changing the selection process so that they are not appointed by a single partisan individual (president) and confirmed by a political body (Senate) and instead using a system like that described above should also provide some insulation against the politicization of judges, but in any case, a single term of ten to eighteen years should be sufficient to ensure that judges are able to stay above the political fray, and by making the term non-renewable, it should remove any further temptation to succumb to political influence.
Additionally, the duties of the Supreme Court should be divided among several courts. We should have one court whose function is solely to determine the constitutionality of statutes. This Constitutional Court should have two tiers. There should be several regional courts to which a civil or criminal court can refer a case for consideration of constitutionality, and a superior court to which appeals from these regional courts could be made. However, these courts would make no decisions specifically about the outcome of the original case. After the Constitutional Courts had reached their decision, the case would be returned to the original civil or criminal court.
We should also divide the Supreme Court into civil and criminal branches, and each branch should have three coequal courts, each having jurisdiction over three of the circuit courts of appeals. This should allow many more cases to be heard at the highest level, and remove some of what I believe are political reasons for not hearing cases.
III. The Legislative Branch
Undoubtedly, the legislative branch is the most democratic of the three branches of our federal government, yet there are still many problems with it that separate the government from the people. Democracy is citizen self-government, and that goal will only be realized when the citizens and the government are in essence synonymous. The legislative branch is the most likely place to make this a reality.
In order to set out a better design without completely starting over, we need to look at what is wrong with our current system. One is the incredibly disproportionate Senate. Seven cities in the U.S. have over a million residents, and seven states have fewer than a million. Three of those cities are in Texas, and two are in California. Those three largest cities in Texas combined — Houston, San Antonio and Dallas — have a larger population than the six smallest states combined. The two largest cities in California (LA and San Diego) have more people than all seven of the smallest states combined. Nevertheless, Texas gets two senators, and California gets two senators, and so do Wyoming, Vermont, North and South Dakota, Alaska, Delaware and Montana.
Since no legislation can be passed without going through both the House and the Senate, thus giving each house a “veto” over the other one, this gives these small states, and to some extent, their residents, an inordinate amount of power on the national stage. Of course, it is not as egregious as the presidential veto, but it is a problem that should be addressed.
A related problem is that it would seem on the surface that we can do little about this problem, due to the final clause of Article Five of the constitution: “no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.” However, we do have some options. There are also other problems related to Article V, including the requirement that amendments be passed by 3/4 of the states. While it is understandable that we would not want 26 states to be able to ratify an amendment to which the other 24 states have principled objections, neither does it seem just that 13 states can prevent the other 37 from fixing what they see as a problem in the constitution. I will address my ideas for remedies to such problems later, or perhaps in a separate post, but the important point now is that these point out that we do not, and can not have equal justice for all Americans with these problems in our constitution.
Another problem with the legislative branch is the way we choose our legislators. That is, our voting systems are not the best ones to insure that the people are best represented in Congress. We have a system in which every state with more than one representative in the House of Representatives uses an individual congressional district for each seat, and each district then can choose only one person to represent all the people who dwell there. It should not be hard to imagine then, especially given that each of our congressional districts has over half a million residents, that one person cannot truly represent all of the people in such a district. While there may be no perfectly representative system, since our constitution was written, several other nations have implemented systems of proportional representation, and have shown such systems to be a better way of representing a broader cross-section of a population.
Some might argue that this problem does not stem from the constitution and therefore does not require a constitutional amendment to fix. We could indeed pass a proportional representation statute that would not violate the existing constitution, but the Preamble sets out the purpose of the constitution as “to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence [sic], promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.” Defining the means of selecting representatives to ensure that we provide ourselves the best method of representation possible would seem an important step to most of these ends, while failing to do so has allowed us to continue using an inferior system, even when proportional systems have been in use in many countries for nearly a century.
There are several issues that we must confront with regard to the conduct of elections. Paper ballots vs. electronic/computerized voting, full public financing, and free and equal media ads are among the most important issues we must face in regard to how we elect officials. However, I think we can eliminate these issues entirely by changing the way we elect public officials entirely. By moving to a system wherein we begin our legislative process at the local level in community assemblies of no more than 200 people, and proportionally elect delegates to wider and wider-area assemblies until we select our city, county, district, state and federal representatives through these assemblies. Using this system, there will be no protracted campaigns. Elections will be among the members of an assembly based on the proceedings of that assembly, not on advertising or other methods requiring any funds. In an assembly of 200 or fewer people, the votes will be easy to recount and verify.
One issue that we should address immediately, and which should remain in place even if we move to a system of graduated assemblies is term limits. Democracy begs that as many of us as possible be afforded the opportunity to participate in some aspect of our government and that we eliminate career politicians. Therefore, no person should serve more than one consecutive term in any office, and should serve no more than four years in any ten year period.
With so many changes to our constitution needed, and very little chance that career politicians will voluntarily take these steps to bring about a participatory democracy that will eliminate their jobs, we the people will need to bring these changes about by some means not expressly laid out in our current constitution.
I suggest that we should build a national transpartisan organization, a citizens’ union, similar in many ways to a trade union, but open to all Americans regardless of employment status, and negotiating not with employers but with our governmental officials. When we have built a substantial organization, then we will have the ability to elect new officials to replace those who do not support the democracy we seek with others who will support the constitutional amendments we hope to achieve. Failing that, we can create the local and graduated assemblies of a future democracy and use those to propose constitutional amendments and pass them on to the national level, and then to call state conventions to ratify them.