Forum Posting

In response to Constitutional Proposals Part III: The Judiciary, hercules mulligan writes:

Now such an amendment doesn't sound like such a bad idea! I think that it's about time the judiciary was put back in its place.I am not aware, however, of any place in the Constitution that gives the Supreme Court the power of "judicial review" per se; I remember that the question of giving the judiciary taht power did come up during the Constitutional Convention, but they did not give the judicial branch that power, nor did they necessarily forbid it. I think that it is a concept that has grown over the years, and has been taken to extremities thanks to 20th century revisionism.

Constitutional Proposals Part III: The Judiciary

Continuing my critique of our Constitution as a tool of government, I proceed now to the issue of the judiciary. Dahl points out the power of the federal judiciary in what has developed as judicial review as being, in essence, “judicial legislation” or policy-making (19). Although there is an apparent, even critical, benefit to having a judiciary with the jurisdiction to review laws for the purpose of assuring their constitutionality, it is, as Dahl notes, a rather undemocratic notion that a group of nine individuals, appointed (not elected) for life, has the authority to “declare as unconstitutional laws that (have) been properly passed by Congress and signed by the president” (18). In order to amend for this constitutional deficiency, I propose the following.
I do not see a need to change the basic structure and jurisdiction of the Supreme Court and the federal judiciary. Nor do I propose the abolishing of judicial review, but rather, simply a limit to the scope of its power. I believe, as Dahl suggests, that the Supreme Court should have the authority to declare as unconstitutional laws which impinge upon the most basic tenants of democratic belief and practice, such as the protection of rights and civil liberties, political equality, universal suffrage, etc. However, in a departure from current judicial precedence and practice, I would propose a constitutional amendment limiting binding decisions by the Supreme Court to cases in which there is unanimity among the ruling justices and constitutionality is clearly threatened (that is, a unanimous court may bindingly rule a law unconstitutional only by demonstration that it is so according to the strict construction of the constitution). This is not to say that the court can not rule upon laws in which constitutionality is vague or in which there is not unanimity among the justices. The difference would be that in such cases, the court's decision would be non-binding. A non-binding decision would serve the purpose of calling attention to an issue which the court deemed as being unconstitutional. Following such a ruling, if there was in fact broad consensus in the media, among politicians, and in the general public, then there would be a strong likelihood of the measure in question being overturned, via the democratic procedure. By the same token, the likelihood of rulings leading to the repeal of laws that are generally accepted as being constitutional would be almost non-existent, while judicial policy-making would be practically impossible.

A Humble Tribute to the Man Who Saved the Union

It seems appropriate on this day, the birthday of our 17th President, to draw attention to the fact that The Federalist, that collaborative work which has for 220 years epitomized the eloquent defense of our Constitution and all its values, begins first and foremost with a rationale that that document should be accepted based on the assertion that a Union of the several states would be in every manner superior to a group of confederacies or independent republics. Publius was able to convince his readers of this fact in 1787-88, but by the middle of the next century an entire region of the United Stated was openly challenging this assertion. It fell to another man to do the convincing, and regrettably, by that point the issue was beyond being settled by well-crafted essays; the only recourse left open to him was war.

Abraham Lincoln was not a popular president; he was loathed in the South, and hated by more than a few in the North as well. His tenure was fraught with the most trying circumstance immaginable, a civil war, from the moment of his inauguration. Yet Lincoln never wavered in his firm conviction that, above all, THE UNION MUST BE PRESERVED. It would ultimately cost him his life.

In The Federalist No. 2, John Jay writes, "I sincerely wish that it may be as clearly forseen by every good citizen, that whenever the dissolution of the Union arrives, America will have reason to exclaim, in the words of the poet, 'Farewell! A long Farewell to all my Greatness!'" Linclon did indeed foresee that reality, at a time when many did not. For that, he is deserving of the lasting gratitude of his countrymen, of which I am one.

Constitutional Proposals Part II: The Senate

Senate Representation. Given the gross misrepresentation of population and political inequality sustained by the U.S. Senate, it is apparent that major changes are in order if we are interested in creating a more democratic constitution. Some may argue that there is no need for a Senate at all, and that our bicameral system is only an impediment to efficiency and an outdated bulwark against true political equality. However, I am inclined to believe that the Senate serves an important duty. As a smaller house than that of the Representatives, it can afford to be more deliberative; by dividing certain aspects of governance between the House and Senate (such as the origination of finance bills and the approval of treaties and executive appointments, respectively), greater specialization is allowed; most importantly, the Senate, if organized in the manner I now propose, can be a more truly national body, not beholden to regional constituencies in the way that the House inevitably must (and should) be.

To prevent the kind of unequal representation which is now present in the Senate, I propose the election of Senators by federal districts based on population. However, in order to avoid back room political bargaining such as gerrymandering, the districts would be organized along permanent state borders. Accordingly, a single-member district would be comprised of several small states, while large states would elect several members by a proportional method, based on their population. Senatorial candidates would be nominated by their respective national party, inevitably allowing for more broad-based and nationally oriented candidates, while also simplifying the election process for both citizens and government, particularly in the multi-member districts.

In case this system seems unclear, take the following as an example. If we allow for the number of Senators to be permanently fixed at fifty (which, I believe, is neither so small as to lack wise counsel, nor so large as to be inefficient), then, with the present U.S. population of approximately 300 million, each senatorial district will be comprised of an approximate population of 6 million. The populations of the states of Kansas, Nebraska, South Dakota, and Wyoming together equal roughly 6 million, therefore these states would be reckoned as a single federal district, with all citizens within these state borders electing a single Senator. California, however, with a population of just over 36 million, would itself be a multi-member district, in this case electing 6 senators. These candidates for the Californian district, having been placed on the ballot by their respective parties, would then be elected proportionally so as to adequately represent the political demographics of the district. For example, if 65% of California's population is Democratic, and 35% is Republican, than the Democrats would be allotted four seats and the Republicans two.

Finally, as regards the term limits of senators, I see no reason to change the established six-year, rotating terms of office. However, I would alter the current system with regards to residency requirements. Not only would senators not be required to reside in the federal district from which they were elected, but they would be forbidden from running for reelection from the same district by which they currently serve. This, along with nomination by the national party and (in some cases) election from a district encompassing multiple states, would further encourage senators to think in terms of the national welfare, as opposed to seeking to please state and regional constituencies. In sum, such a Senate would provide for a democratically elected body (as regards the political equality of voters), relatively free to deliberate and legislate on issues of truly national interest as their primary concern.

Forum Posting

In response to Constitutional Proposals (Presidential Election), Stephen Palmer writes:

Rob, this is a critically important issue to bring to light, and I appreciate your comments.

Almost without exception, the Founders understood, with Aristotle, that next to tyranny, democracy is the worst form of government. This understanding is displayed all throughout the Federalist Papers.What people fail to realize is the difference between a democratic culture, and a Democracy in terms of governmental forms.

The Founders wanted a Constitutional Republic that supported a democratic society, or a society where people truly believed and lived the ideal that all men and women are created equal in the sight of God. A democratic society is a mobile society; people are free to move up and down social classes as they see fit. However, a democratic form of government is something entirely different.

I also write alot about this issue on my blog and I think you and I could have some interesting discussions. I look forward to hearing from you!

Rob Scot replies:

I acknowledge that a good government must in some repects be, strictly speaking, undemocratic. However, there is a fine line to tread when we speak of a government designed to uphold democracy in society while itself remaining less than fully democratic. Again, I do not take issue with the fact that this must be the case to an extent; but it is inevitable that the populace will at times come to view certain government actions as hypocritical in this regard. Therefore, if it is feasible to make the government more democratic while still upholding the rule of law, due process, and sound reason, I believe such measures are desirable. Specifically, I believe the process by which our nation elects its president is such an area.

I don't pretend that such a measure would be undertaken without some risk and controversy, but democray has always been risky business. Your comment that "next to tyranny, democracy is the worst form of government" brought to my mind another quote:
"It has been said that democracy is the worst form of government except all the others that have been tried." -- Sir Winston Churchill

By the way, where can I find your blog? I would very much like to visit it.

Forum Posting

In response to Constitutional Proposals (Presidential Election), hercules mulligan writes:

This whole issue of democracy and the Constitution is a very intriguing one indeed. As a result of my study of the Founding Fathers' writings, I have come of the opinion, as Alexander Hamilton did, that "democracy is our real disease." The Federalist Papers (not just the issues written by Hamilton) also carry this theme.

Now, the Founders were not saying that we should not have a popular government in some sense, but that the excesses of popular rule should be controlled. In order to understand American government, and the US Constitution, we must understand that LAW is above the will of the rulers and the ruled. All too many contemporary historians have made the mistake of thinking that we need to make the Constitution more "democratic," when a glance at the Notes and Debates of the Constitutional Convention (available free online through my blog The Founders' Bookshelf) clearly shows that the Framers avoided making the federal government directly responsive to the populous of America.

I wrote a post entitled "The Purpose of the Constitution" some time ago, to try to make this clear. I think that the Electoral College should remain a part of the Constitution for two reasons:1): the Framers deliberately instituted it to check what they called the "democratic excesses" of a country, and also to provide the way to give the state governments a say in the choosing of the next President as well.*2): to start tinkering with our Constitution, because people believe that "modern times" have changed our nation so much that we need to change our Constitution is dangerous, and I would almost say, treasonous. Because when the people of the land think that they can change the law of the land any time they please, they have already destroyed the foundation of a government of law, which is what America is supposed to be.
*I think that changing the Constitution to make it more "democratic" and to give the state governments less of a say in the federal government is dangerous, and is a result of our misunderstanding of what the federal govt. is for. The state governments govern the people, and the federal government governs the states to a limited degree, and oversees the affairs of the nation with foreign nations. The only reason that the people have any say in the federal government is so that the state governments do not go unchecked, or use the federal govt. to abuse the people.

I wrote a post here on democracy and the Constitution, and discussed the 17th Amendment, which changed the way in which federal Senators were elected, and showing how such a change of the Constitution is illegal, and detrimental.This is a long comment (*sorry*), but it is my thoughts on this important subject.

Constitutional Proposals (or reflections upon reading Dahl)

In his book, How Democratic is the American Constitution?, Robert Dahl points out several aspects of our constitution which he views as being “less than democratic”. Although a number of these aspects of the original document have since been changed through amendments, several defects remain. Briefly stated, the major elements, as Dahl notes them, concern the election of the president (the electoral college), unequal representation in the Senate, judicial power, and lack of either strong majoritarianism or proportional representation in the government. In a series of upcoming posts, I will outline what a U.S. Constitution which has been rectified to overcome these undemocratic elements could conceivably look like.

My purpose in this is not to dishonor our noble Constitution, but, rather, to foster educated discussion of a democratic nature, as is fitting for citizens of a republic. Accordingly, all comments will be welcomed and, in most cases, published on the forum. I will begin with the issue of the Electoral College.

Presidential Election. The electoral college is an institution which, I believe, has outlived its relevance. It appears to me that the college functioned as the founders intended it to for the election of Washington and possibly Adams. From 1800 on, developments have “turned the elaborate machinery of the electoral college into little more than a way of counting votes” (Dahl, 79). In addition, the several occasions in which a candidate has won the presidency without a majority (or even lost with one), seem to imply that the electoral college is not only undemocratic, but in a sense, illogical. For these reasons, I feel that the college should be abolished.

Technology has advanced such that votes across the nation can now be counted (in most cases) with speed and accuracy. The president should therefore be democratically elected by popular vote. It is true that this will increase the possibility of voter fraud and corruption, but ensuring free and fair elections is a burden which every democratic society must carry.

It may be pointed out that a popular nation-wide election would probably encourage more candidates to run for the presidential office, and thereby increase the risk of having no candidate receive a majority of the vote. In order to counter this possibility, the ballots could be organized by “preferential voting,” as Dahl makes mention. Under such a system of election, voters would cast their votes for several candidates listed on the ballot in order of their preference. In the case of an election in which no candidate receives a majority, the candidate with the fewest primary votes would be dropped, and the secondary votes from those ballots would be allotted to the respective candidate. This process would continue until a candidate has received a majority.

It may also be countered that, given the political climate of the nation at present, in which several elections have been extremely close, contested elections will be a problem, prompting endless nation-wide recounts. In order to avoid this, a time-table could be set, limiting recounts to a maximum of a few days immediately following an election. If a clear victor still fails to emerge, the election would go, as it does now, to the House of Representatives, but with one critical difference. Rather than each state being allotted a vote, each representative would cast a single vote. In this way, the national population would be more fairly represented (especially given the make-up of the House, which will be detailed later), and the President elected by a qualified deliberative body.