By Mike Gravel
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.