The Economist Magazine’s report on direct democracy
in California is an excellent compendium of existing direct democracy’s
shortcomings. However, all those failures in California exist (and then some!)
at the federal level of American government — where no direct democracy
exists. The point being that failure of governance need not be associated with
direct democracy. The report relies on history grade-school knowledge to
interpret Madison’s role in our founding.
Who
are the Sovereigns of the Polity – the People or Government Officialdom?
On three
separate occasions in 1787 and 1789 James Madison pointed out that, "The people were, in fact, the fountain of
all power, and by resorting to them, all difficulties were got over. They could
alter their constitutions as they pleased."
That most of
the Founders believed that the people had every right to exercise their
sovereignty to make laws, amend constitutions and to alter their governments is
reflected in the following quotes:
"The basis of our political system is the right
of the people to make and to alter their constitutions of government." George Washington,
"All power is originally in the People and should
be exercised by them in person, if that could be done with convenience, or even
little difficulty." James Wilson,
"Each generation has a right to choose for itself
the form of government it believes is promotive of its happiness." Thomas Jefferson.
Why did the constitutional Framers, informed at the time by their
experiences with the successful town-meeting system of governance, fail to
provide procedures in the Constitution so the people could do what was
generally accepted as their sovereign right: amend the Constitution and make
laws to promote their happiness?
This failure stems from the decision at Philadelphia in 1787 to abandon the
principles articulated 11 years earlier in the Declaration of Independence-that
all men are created equal. The decision to permanently embed slavery in our
vaunted (but imperfect) Constitution had to be protected from the people. Madison and the Framers were well aware of
the Massachusetts experience where citizens refused to ratify a state
constitution in 1778 that legalized slavery (in 1780 they overwhelmingly ratified
one that excluded slavery).
Madison,
Pinckney and others devised the convention ratification scenario of Article 7,
which permitted the Framers to circumvent the people. These state conventions permitted
the political elites, for and against the Constitution, to gather and duke it
out without being pestered by the people opposition to slavery.
The Framers’
fear that the people would remove slavery from the Constitution, if so
empowered, was well founded. The first lobbying effort in the first Congress
was an assault on slavery by Pennsylvania Quakers led by Benjamin Franklin. It
was successfully thwarted by James Madison and the slavery faction in the Congress.
Slavery was so effectively embedded in the Constitution that its removal, short
of a civil war, was impossible.
Of the five
features locking slavery into the Constitution, only one-that of a slave being
counted as three-fifths of a person for representative purposes in the U.S.
House-had been removed by the Civil War; the other four (1. the Electoral College, 2. Article V, 3.
the Senate and 4. state and local government control of federal elections) all, highly
undemocratic features of the Constitution, have remained to work their mischief
on our governance to this day, long after the official demise of slavery.
That representative government model has
since become the norm copied by nation-states calling themselves democracies
because it more easily
maintains the elites of earlier systems of governance in power. The one
exception is Switzerland, which copied our Constitution but added the people as lawmakers, creating a very successful governing
partnership with their elected officials. This type of partnership was the road
intended by the Founders, but not the one taken by the Framers of the American
Constitution.
The failure of the Framers to include legislative procedures in their
draft of the Constitution whereby citizens could make amendments and laws was
the price paid for slavery and the fear of mob rule was a convenient cover.
Initiatives and
Referenda
The fist
fundamental change in the structure of American governance since the founding
took place at the turn of the last century without amending the Constitution.
Starting in 1898 and up until the First World War, more than 20 states amended
their constitutions to permit their citizens to initiate and enact laws and
amend constitutions. The motivation for this change was the abusive corruption
of government by the business community in the post-Civil War boom and the
"robber baron" era.
Let me state at the outset that all 24 initiative states have bad laws.
As a result, representative government controls the process of direct democracy
and continually limits or corrupts the process. The Swiss model imported by the
legislatively inexperienced reformers works well for the Swiss but has proven
inadequate for the modern complicated demands of the 21st Century.
Lawmaking is the central power of government and requires a
deliberative process, what you call "dialogue" in law-making. Such dialogue is
lacking in every initiative state. Additionally, an agency implementing the
legislative procedures on behalf of the people must be independent of
representative government if the people are to become the fourth real check
within our system of Checks and Balances. Even without the ability of citizens
to legislate, that system is often voided when one political party controls all
three branches of government.
The problem we
have with governance in the U.S. is not the excess of citizen participation,
but the lack of deliberative citizen participation. That is true not only in
those states with initiative laws, but in all states and at all levels of
government. It has never been easy for people to participate in the political
process except under the direction and control of political parties that hold a
monopoly over the electoral process.
More fundamentally, the structure of representative government keeps citizens in civic adolescence. We want the largesse
of government, but are reluctant to pay for it. We give away our policy-making
powers to elected officials on Election Day and then we blame them when things
go wrong. That is the definition of civic adolescence. When citizens become
deliberative lawmakers, they
are forced to take responsibility for the public policies they enact. This brings about a process of civic
maturation within the
constituency-a human development that will benefit all facets of human life. Civic
maturity is the most important result of deliberative citizen lawmaking, forcing us to take responsibility for
our public policy decisions. This process is exactly what we do in rearing our
children — giving more and more responsibility, leading them to adulthood.
Is Change Possible?
There are only two possible venues for change: we can look to our
elected representatives wherein the problems exist, or we can look to the
people. Your preference for referendums as a tool of direct democracy
underscores the paternalistic tone of the entire report. Legislating by
referendum is not direct democracy, but rather a device used by representative
government to submit measures to the constituency for up or down votes, devoid
of any deliberative "dialogue" that you so admire. Implicit in your
recommendation is that Californians’ legislative power be limited to statutes
alone, as is the case in a number of initiative states where citizens cannot
amend their constitutions
Our dilemma
is that all of our efforts at improving governance are attempted within the context of representative government. Unfortunately, we
continue to believe that electing the right people to public office will bring
about structural
improvements, which has repeatedly proven not to work. This does not diminish
the vital need to elect people of integrity to public office. The point I make is
that the structural flaws of representative government cannot be corrected
within a system that profits its elites and their representatives.
The answer to the problems of human governance in California and in our nation lies with
the people — not with their leaders. Adding direct democracy to our representative
government would correct all of the shortcomings the magazine’s report
identified and much more.
The enactment by the people of proposed meta-legislation — the
National Initiative — will empower citizens in all jurisdictions of government
as lawmakers, not only solving California’s dysfunctional system but that of
the more egregious dysfunction of the federal government. Since the Congress
will never enact the dilution its powers, the National Initiative must be enacted
the same way the Constitution was enacted as the law of the land in 1787-1788.
With Article 7 of the Constitution as precedent, we need not employ a
convention system. Present technology permits us to ask all American voters if
they wish to empower themselves as lawmakers as the Founders had envisioned.
Is this legal?
It is if you believe in the Constitution, wherein We, the People, "do
ordain." Certainly the people as sovereigns cannot be limited by what they
create–the government– in making changes to the government. The people as
sovereigns can enact the meta-legislation, the National Initiative, thereby
completing the work of the Framers, who were waylaid by the tragedy of slavery.
Cicero
defined freedom as participation in power. Giving your sovereignty away on Election Day through the manipulations
of the electoral process is not meaningful participation. Only by exercising
the central power of government – lawmaking — can we have meaningful participation and safeguard our freedom. It is our
birthright, if we dare to claim it.