![[Star-spangled rule]](hr.thin.gif){kind=small}
Problems in American Democracy
— and some solutions
[c. 5,000 words] [End]
A presentation by the
Expansionist Party of the United States
295 Smith Street
Newark, New Jersey 07106-2517
UNITED STATES
Phone: (973) 416-6151
E-mail: XPUS@aol.com
The United States was established by Revolution, a real revolution that established new forms of government and looked to the future with the understanding that periodic mini-revolutions would be necessary to keep government up to date. Serious problems have developed with American democracy, which call for analysis and reform.
Here, we speak to a few of these problems: (1) candidates we don't want, (2) government that has become much too large and invasive, and (3) activist, unelected courts that overstep their bounds to void laws duly passed and to overrule elected officials in the performance of their constitutional duties.
Most people in the United States are disgusted with their "representatives", feeling they don't really represent us at all.
How can we get greater voter participation and elections that give us truly representative officials? Easy: compelled voting and "None of the Above" on the ballot.
Voter-registration drives and telling people they have an obligation to vote are piecemeal, inadequate solutions. You can register as many people as you want, but you won't get them to vote unless they can vote for someone or something, because people are tired of voting for "the lesser of evils". We don't want to vote for an evil, not any. Not the lesser, not the greater. We want to vote for a good.
Voter-registration drives are based on the notion that candidates will feel compelled to address the concerns of people who might vote, but can freely ignore people who cannot vote. Elected officials are, however, savvy enough to know that certain groups in fact will vote and others won't, no matter how many of each are registered, so they are intimidated disproportionately by those who do vote in high ratios (e.g., the wealthy, the elderly, Jews, suburbanites) and scared not at all by those who don't (blacks, Hispanics, the poor, the young). The solution? Compel everyone to vote, as many democracies around the world do. Fine nonvoters $100 or sentence them to 100 hours of community service, and you will have all the incentive to register and vote that you need. It may well be that hopelessly cynical people will believe their vote counts only when they see the different tallies on the tote board in the first election when everyone does vote, as against the patterns before. Presidential Election 2000 — which was decided by less than 500 votes in Florida — provided stunning proof of the importance of the individual vote, but cynical people may nonetheless shrug that off as "a fluke".
The rhetoric of reform must shift from guaranteeing the right to vote instead to compelling everyone to live up to the responsibility to vote. Subsidiary reforms, like reducing the time between registration and election day, easing registration procedures, etc., would be spurred by the legal need to register 100% of eligible voters.
It would be improper, however, to require people to vote for someone they don't want. So reform No. 2 must also be made, at the same time or sooner: include a binding "None of the Above" option on the ballot. People disgusted with all the choices could vote "None of the Above". Those who want to vote for a 'minor' candidate would no longer feel compelled to vote instead for the strongest alternative to the frontrunner, since other people, disgusted with the frontrunner but not attracted to any of his opponents, could vote for "None of the Above" to stop the frontrunner without sending false messages of support for one of his 'major' opponents.
In a presidential primary, a binding "None of the Above" vote of 60% of the voters would mean that 60% of a state's delegates to the Democratic or Republican National Convention would be forbidden by law from voting, on the first ballot at the Convention, for anyone who had run in that state's primary. If only the same candidates were offered in convention, they would vote "None of the Above" there too.
Thus could we have the strengths of a nomination settled by primaries when the people are enthusiastic about a candidate, but the strengths of a "brokered" convention when the people are disgusted with the choices they had in the primaries. For, if the nominee were not decided on the first vote, all candidates would have to scurry to put together a winning coalition by striving for balance and inclusion.
If "None of the Above" wins a primary for any office other than President, there would have to be a second-round primary, with all new names, since the candidates named the first time would all have been irretrievably rejected. If "None of the Above" were to win the second-round primary, there would have to be a third, a fourth, a fifth, even a sixth, with entirely new candidates each time (everyone defeated in any of the earlier sub-primaries being ineligible to run in any later sub-primary). Eventually, and probably sooner rather than later, the parties would accept the fact that the voters are tired of Tweedledum and Tweedledee, so if party bigwigs want to win an election they had damned well better give us somebody we can vote for, because we will finally have a means to vote against everyone we want to reject.
At a general election, the same rule would hold. All named candidates would be defeated by a vote for "None of the Above" greater than for any named candidate, and there would have to be another general election, and another, and another, until the parties stop trying to saddle us with somebody we just plain won't have. There are over a quarter billion people in this country to fill 535 seats in the House and Senate, one seat in the White House, and one in the Vice President's mansion. We can surely, out of a quarter billion people, find somebody we really want. We don't have to settle for the clowns and hacks the major parties want to stick us with.
What would happen if a November election didn't give us a President, and only a few of the seats in the House and Senate were filled? There would have to be a late-November election, and/or a December election, and/or a January election, and we would have to be adamant about not letting the parties scare us into voting for somebody we don't want for fear of leaving an office — any office, including President — vacant. At the end of their terms, all officials not re-elected would stand down, and every office not filled by existing law would remain vacant until the people finally decide they have somebody they do want to fill it.
(a) In the case of the President and Vice President, they and all their appointed Cabinet officers would leave at the end of their term, and the provisions of the Succession Law would immediately thereupon determine who becomes President, as though both President and Vice President had resigned. There would be no vacuum at the top. The Succession Law can be reformed to provide an Acting President rather than a full-term President until a second-round election (or third-round, or fourth) can select a truly popularly-elected President to complete the prescribed term.
(b) In the case of the Senate, only one-third of members run in each Federal election, which would leave the Senate with a quorum adequate to do business even if not one of the seats up for grabs were filled. The Constitution permits each State to determine its own means of filling a Senate vacancy. In some States, the Governor selects a replacement for the full term. In others, the replacement sits only until a special election can be called. In still others, no one is seated until a special election. The electorate of each State would need to know the legal consequences if they refuse all candidates in a given election. If New Yorkers are content, for instance, to have Republican Governor George Pataki select a replacement for Democratic Senator Charles Schumer, they may be happy to vote "None of the Above" if they don't like either Schumer or the Republican put up against Schumer in the general election.
(c) In the case of the House of Representatives, if only 100 members, or even 0 were elected, to take the extreme case, the House should be forbidden to act until a quorum of its full strength, that is, 223 (half-plus-one of the full complement of 435), were seated. The Senate would still be able to act, since it would retain two-thirds of its members in any event, but since no law and no budget can pass without both houses' approval, the legislative business of the Nation would come to a halt until a truly representative Congress were seated. Since the Federal Government's fiscal year runs ahead of the calendar year, this would not result in a financial crisis for several months after a new Congress is supposed to start business on January 3rd. That should be enough time for the parties to give us people we are willing to vote for.
If worse comes to worst, and the parties figure they can just wear us down by imploring us that the whole Government will have to shut down if we don't accept the unacceptable candidates they want to shove down our throat, the people can either give up on getting a truly representative Congress or face down the parties and say,
"If the Government has to shut down, then let it shut down. Better no Government than an undemocratic Government."
This might happen once. The parties are unlikely ever to let it happen again. That is especially true inasmuch as, with the end of the Cold War and concerns about being overwhelmed by violence from abroad, we may very well discover we don't need much of a Federal Government after all, but that States, localities, regional authorities, and private organizations and corporations can manage the people's business perfectly well without one.
If an experiment of this moment were too risky to institute at the Federal level, it could be tried at the municipal and state levels first. If a logjam occurred there, and the people finally won truly representative and responsive Government at those levels only after a long and painful battle between entrenched interests and the people, the parties at the national level would be so badly bruised and scared that they would yield to the popular will from the outset, and not risk such a confrontation after "None of the Above" were applied to Federal elections.
One reason they would not so dare is that third parties (like XP), badly disadvantaged at present, might, once all the big guns of the major parties are voted down, be on reasonably equal footing, enough to break thru the monopoly that the major parties exert, as to get their people elected all around the country. Voters might just say, "I've never heard of any of these guys; the major parties won't listen; so maybe it's time to give the other parties a chance." The major parties don't want the electorate even to think such thoughts. [Other problems]
Courts have taken powers not granted them, usurping the prerogatives of Congress and the President. The Supreme Court, and then lower courts, decided (on their own, nonexistent authority) that they should control society by "interpreting" the Constitution and compelling every other organ of government, and every aspect of society, to obey that "interpretation".
That was not the intention of the Framers of the Constitution, who always
intended Congress, an elective body closest to the people, to be first among
equals. The Framers did not specifically forbid the Supreme Court
(an unelected body, now nine in number, that is appointed for life
by the President, subject to approval by the Senate, which represents the
States) to assume the kinds of powers it has assumed. In the British tradition
that the Framers were born into, no court would dare to assert that
it, rather than the elected legislature, was the proper guardian of the
constitution. Quite the contrary, courts had always accepted that their job
was only to apply the generalities of the law to the specifics
of a particular case, not to rule on the legality of a law duly
passed by the legislature according to the procedure established by the
constitution.
The U.S. Supreme Court may indeed have invented the notion that a
court of less than 10 members is a better judge of what a constitution really
says than are the dozens or hundreds of members, most of them lawyers, of
the legislature that wrote that constitution and can amend it, or
at least start the amendatory process.
The U.S. Constitution decidedly does not give the Supreme Court the
kinds of power it has usurped, but neither does that Constitution expressly
forbid the Court to assert such authority. The Constitution does say that
anything not expressly permitted to the Federal Government is forbidden
to it, and reserved to the States or the people. The Supreme Court, however,
got around that by pretending that that provision was a restriction only
on the Federal Government as against State governments, not a restriction
on one branch of the Federal Government as against other branches of the
Federal Government, so the Supreme Court was free to create itself into the
final arbiter of what the Constitution does and does not mean, even tho
the Constitution itself does not grant any such right
to the Supreme Court.
Courts in the United States have also asserted the right to do things any
rational person would interpret the Constitution as forbidding them to do,
such as raising taxes (taxes being a legislative area)! But because the Founding
Fathers who framed the Constitution did not grant courts the right to void
acts of Congress or take for themselves the powers of the Executive and
Legislative Branches, they equally did not write a provision by which Congress
and the President, acting together, or Congress acting alone, could override
acts of the courts. This appalling oversight is an extremely serious problem
we must fix, because the "balance of powers"
that American political scientists are so fond of praising lacks a quintessential
element: controlling courts.
The President (executive branch) can veto an act of legislation of the Congress (legislative branch). Congress can override a presidential veto, by a supermajority. But if the Supreme Court dares to intrude into the legislative process — which it is assuredly not authorized to do — as to say that a law passed by Congress and the President according to the Constitution is not law because it does not comport with the Constitution as the Supreme Court reads that Constitution, there is no power on Earth, not all quarter-billion-plus citizens of the United States put together — even voting unanimously — that can override that particular decision.
The United States needs a constitutional amendment to permit the Supreme Court to be overruled.
The reason the Founding Fathers did not expressly grant the Supreme Court the right to interpret the Constitution and void an act of Congress duly passed according to the procedures set forth in the Constitution, is that they didn't intend the Court to have any such power. They didn't think to forbid the Court from asserting such a right because it was inconceivable to them that any court would dare do such a thing. It was not part of their experience.
In British constitutional law, the legal tradition upon which the Framers built,
"there is no field in which parliament is forbidden to legislate . . . . Moreover, since parliament is fully sovereign, it is not open to the courts to declare that an act of parliament is unconstitutional or void; all the courts can do is to interpret acts and enforce them (though it must be added that the process of interpretation can produce results that have on occasion largely stultified the purpose of the act). In Lee v. Bude and Torrington Junction Railway Co. (1871), a great judge said: 'I would observe, as to these Acts of Parliaments, that they are the law of the land, and we do not sit here as a court of appeal from Parliament.' The function of the courts is much more limited than in a country where judicial review is a recognized check on legislative activity." — Encyclopaedia Britannica
It is that more limited role that the Framers of the U.S. Constitution had in mind for the United States Supreme Court and, by extension, all lower courts.
If the Framers of the Constitution had intended the Supreme Court to have the power to void a law, (a) they would have said so, in so many words, and (b) they would as well have provided a mechanism for override of a Supreme Court veto just as they provided for an override of a Presidential veto. They did no such thing, not because they intended the Supreme Court to be the supreme branch of Government, the irreversible last word on constitutionality, but just because it never occurred to them that the Supreme Court would arrogate to itself a supremacy the Constitution never gave it.
The Supreme Court cannot be overruled. That is absolute power, and it has indeed corrupted the Court. We live under a judicial dictatorship. That must end.
What should have happened once Congress understood the implications of the Supreme Court's assertion in the 1803 case Marbury v. Madison that the Supreme Court is entitled to strike down as unconstitutional any law it doesn't like, is that Congress submit a constitutional amendment to the States to provide that (a) yes, the Supreme Court may void a law as unconstitutional but (b) notwithstanding the Supreme Court's judgment, Congress and the President, or Congress acting alone, in each case by supermajorities, can override the Supreme Court and restore a law to effectiveness. Unfortunately, Congress did no such thing, not in 1803, not since.
Each time the Supreme Court makes a hugely unpopular ruling, people cry out for a constitutional amendment to deal with the specific subject of that ruling: school prayer, the death penalty, abortion, flag-burning, etc. These proposed constitutional amendments never get anywhere, because everyone backs down from the idea of overruling the Supreme Court on emotion and from altering the Constitution, a document that speaks in very broad principles, as to clutter it with specific references to small matters. Congress especially dislikes the idea of tampering with the Constitution over items to which the Declaration of Independence's phrase "light and transient causes" might apply. So the Supreme Court always wins these contests over specific issues. Should it?
Some people prefer that the Court be allowed to be the final arbiter of politically explosive issues. That way, they feel, an end can finally be put to specific controversies that otherwise might rage for decades. And, such defenders of judicial supremacy argue, the Court does pay attention to election returns, if for no other reason than that new Presidents appoint new members, and the majority on the Court shifts views from one era to another. One Court majority found there is a constitutional "right" to kill unborn children; another may rule there is not. But if the Constitution doesn't change by even one relevant word, why should laws be struck down in one decade but restored in another? And if the law is to change with the times, who is better qualified to make that change, a large body of elected legislators (most of them lawyers) or a tiny body of unelected judges?
In permitting courts to void duly passed laws, we have given rise to a lot of grandstanding hypocrisy on the part of legislators who know that laws they pass in order to play to the temporary prejudices of the crowd will not pass constitutional muster, so will be struck down before they can hurt anybody. Legislators can thus both eat their cake and save it too. They get to pose as champions of things they don't really believe in, but are not responsible for the consequences of their acts, because the courts will void those acts. If the legislature and executive were the final arbiters of constitutionality, they would have to act responsibly. In all likelihood, not only would fewer bad laws pass, but irresponsible language in debates would also diminish, and the public discourse assume more civility.
Let's have the best of both worlds, judicial review and primacy of elected government. Let's enact a single constitutional amendment that will empower us to overrule the Supreme Court every time it's wrong, by act of a supermajority of Congress, with or without the assent of the President, or by a majority of Congress plus a popular referendum.
XP suggests an amendment that would provide three alternative ways to override
the Supreme Court:
Two-thirds of both Houses of Congress, plus the President, shall override
any decision or order of the Supreme Court or any lower court, on any matter
whatsoever.
If the President refuses to go along, three-fourths of both Houses
shall override the Supreme Court.
In the alternative, the issue shall be submitted to the people in referendum if
Such an amendment would make it difficult to override the Supreme Court except when there is wide agreement that the Court is wrong. If the President sides with the Supreme Court against Congress, more of Congress and of the people would have to vote to overrule than if the President and Congress agree. That would allow the agreement of two of the three branches of Government to impede but not completely stop the third, the one branch that is the most closely and frequently answerable to the people: Congress.
This amendment would complete the system of checks and balances among the three branches of Government set forth in the Constitution.
Such a corrective amendment would do nothing, however, to reign in the host of "independent regulatory agencies" that were created in the 20th Century without constitutional authority. Just as in Marbury v. Madison the Supreme Court created for itself powers not granted by the Constitution and, thus, neither regulated nor controlled by the Constitution, so too in the period from 1914 on did Congress and the President invent governmental organs not envisioned, and thus neither regulated nor controlled, by the Constitution. These entities, such as the FTC, SEC, FCC, and Federal Reserve, wield broad powers over the economy and citizenry but are not subject to regular oversight or reversal. They are effectively governments unto themselves, answerable to no one. That must change. If we don't yet have an answer, we can at least draw attention to the problem. [Other problems]
The U.S. Constitution established a severely limited Federal Government, but the people who have served in that Government have found ways around restrictions on what Government may and may not do.
The Constitution does not authorize the Federal Government, or any government, to intrude into every area of human activity. Quite the contrary, our Revolution was based on the individual, not the collectivity, and the major theme of the Constitution is not what Government is allowed to do but what it is not.
When the Constitution talks about equal treatment under law, that means not that laws should be written to interfere with private property and private conduct but that Government must not discriminate against any group of citizens. Constitutional standards apply to Government, not private individuals at all. Thus Government may not hire, promote, or fire on the basis of race. Government may not take sides in controversies over gender, religion, sexual orientation, or any other irrelevancy in dealing with citizens but must be strictly neutral. Nowhere in the Constitution or Declaration of Independence is there authorization to dictate to private individuals, corporations, or clubs what their attitudes toward people of different groups must be.
The purpose of Government is not to change society but to serve it. The intellectual authority for social engineering comes not from our basic documents but from documents alien to our tradition.
Specifically, we are suffering from the seepage of Marxist-Leninist-Maoist ideas into the mainstream of U.S. thought. This was inevitable, considering the full-court press the Communist world made to win friends and influence people throughout seventy years of propaganda, especially through universities. The idea that it is society that matters, not the individual; the idea that all individuals should be indistinguishable and interchangeable, each merely a cog in a great social machine or a cell in a single social organism — these are ideas that derive, in their current incarnation, from Communism, directly or indirectly. (Fascism asserts similar ideas, but fascism didn't last very long, so didn't make a lasting imprint on the intellectual life of the United States.) All-powerful, all-invasive Government is counter to everything our Revolution stood for, so must be exposed and repudiated forthrightly.
Someone did a survey that asked U.S. students where the formulation "From each according to his abilities, to each according to his needs" comes from. Many thought it part of the Declaration of Independence or Bill of Rights! In reality, it comes from Critique of the Gotha Program, an 1875 work of Karl Marx. Though it sounds grand in theory, in practice "abilities" ends up meaning "motivation", and a system premised on equality of rewards robs workers of motivation. It also produces a debilitating sense of entitlement: "the world owes me a living".
What we need to do is strip Government of all its extravagant powers, strip it right back to what was intended by the Founding Fathers. The excuse has been made that changed circumstances require changed approaches, and that the needs of the needy are so great as to require great sacrifice on the part of everyone else. But if everyone else sacrifices to give the needy everything, what motivation do they have to take care of themselves? And why should we all have to sacrifice in every sphere if what is really at issue is the economic wellbeing of the poor? Isn't it enough to provide financial support? Do we also have to sacrifice our rights of privacy, identity, control over our own property? Surely not. If we pay taxes, and those taxes support the needy, then we have every right to be free from Government intrusion in every other aspect of our lives. We have the right to manage our businesses, organizations, and social lives according to our own lights, without Government dictating to us whom we must hire, promote, and fire; whom we must admit to our clubs; and how we may and may not address each other.
Every Government activity that intrudes upon the rights of the individual must be reexamined. Every Communist influence, every collectivist impulse, must be identified and eradicated, without apology. The world suffered a nightmare for seventy years this century, a nightmare that isn't quite over. 400 million people long imprisoned in collectivism are only now breaking free. They want what we had until we started to move in their direction. Now they have abandoned that (Marxist) direction, having learned their lesson the hard way. We must learn from their experience to value our traditions of freedom, self-reliance, and rugged individualism. Neo-Stalinist conformity to "politically correct" thought and expression has robbed American public discourse of the rough-and-tumble conflict of hard ideas and genuine feelings we need to sort out public problems that have us all angry, feeling oppressed and censored.
Civil rights legislation properly addresses only the rights of citizens vis-a-vis Government. It is enough to end governmental discrimination and guarantee equal access to Government services and the ballot. Government intrusions into the hiring, promotion, and firing practices of private businesses are illegal violations of the Fifth Amendment's provision that Government may not take private property without paying for it. Government regulations that impose race or gender quotas upon private employers appropriate a key part of management's control over its own property, and may indeed cause a business to fail, without any compensation whatsoever. The Constitution does not authorize Government to do any such thing, so Government must get out of the boardroom unless Government chooses to buy into each and every business it dictates to, at fair market value.
It is preposterous for Government at one and the same time to scold business for being noncompetitive and inflict upon business a workforce incapable of world-class productivity. Blacks and other minorities will get nowhere until they realize there is no free lunch, no free ride. They must earn everything they get, by working hard and working smart. When they do, they will feel they deserve what they have, and will join with others in protecting it from crime.
It is also beyond contention that when people earn their own way, in a real job they are really filling, they achieve a level of self-esteem that no welfare program nor Government-extorted, affirmative-action, phony job can ever provide.
What can Government properly do if employers refuse to hire or promote minorities and women? First, Government can argue that such refusal is self-defeating, in depriving business of good people. Second, Government can prove that minorities are competent by making its own workforce, heavy with minorities, work well — efficiently, courteously, expertly. Third, Government can declare that it will act as "employer of last resort" and hire everybody no one else will — at taxpayer expense. Government can sweep the streets, replant forests, rebuild infrastructure, staff daycare centers, patrol housing complexes, and replace other Government workers with lower-paid "employees of last resort". If business has to pay higher payroll taxes — maybe much higher — to finance that, maybe business will decide that if it has to pay for people anyway, it might as well have them help the business directly, not just indirectly through the benefit we all eventually derive from Government programs to clean up the environment and put everyone to work.
Government may properly argue for changes in people's attitudes, but it has no right to intrude into the private social interactions of the free citizenry of this country, nor tell us what to think — and feel — about other races, ethnic groups, religions, or sexual orientations; the opposite sex; the handicapped; or anyone else. We are entitled to our own opinions and feelings, and we have an absolute right to choose our own friends. The First Amendment guarantees us freedom of association, and freedom of association is necessarily also freedom from association. Thus, people have the right to form clubs that exclude anybody they damned well want to exclude, on any basis whatsoever, and form businesses that hire, promote, and fire anybody they want, any time they want, for any reason they want. Period.
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