A few days ago, I had a Facebook post on the fact prominent Democratic politicians were now advocating that white male Presidential appointees should not be afforded one of our inherent and foundational rights under the law. The feminist #metoo movement has led them to abandon the idea the accused must be presumed innocent until it is proven beyond reasonable doubt they are guilty. Their position is the accused should and must be presumed guilty until he can prove beyond reasonable doubt his innocence. This is obviously a political strategy, but if it were to become a social reality it shifts the burden of proof from the state to the accused and carries almost unimaginable ramifications for the abuse of our legal system by a powerful state. As we saw in the previous administration the use of the tools of government against its opponents has already become a reality. How easy it would be to make that next step to a totally authoritarian regime where the accused must now prove themselves innocent beyond question.
One of my friends offered an opinion on this post, which for me provided some interesting food for thought on things we could or should do to change the government. I would like to spend some time in response to those proposals for I think they are worthy of a little more in-depth response than firing off a brief rebuttal.
His first proposal was to change the term of appointment for judges to the Supreme Court from life to 12 to 15-years. His reason was to allow a change in the court when the political parties changed who was in or out of power. Although not specifically addressed in his suggestion I will make the leap that if we are to change the term of appointment for the SCOTUS, we would then make the appointments to the multiple Courts of Appeal term-limited, for it makes little sense to allow longevity on the lower court, where the vast majority of opinions are really made, when a court charged with a responsibility to review and adjudicate appeals would be made up of term-limited justices who would be seeking favor from the party likely to be responsible for their reappointment when a term expired. Of course, that could be remedied by only allowing an individual to serve one term, but looking at our pool of lawyers and judges do we really have that big a pool of impartial experts in the law to swap them all out every 12 to 15 years? Maybe we do, but color me skeptical. As we look at the quality of our political pool I don’t see a lot of brilliance in the herd.
My concern with this proposal is a simple one, it forsakes the role of the court as a check to the abuse of power of the state. We can debate the pros and cons of activists versus originalist judges and how the court has from time to time created legislation from the bench, but if we create a system where the Executive and Legislative branches have a regular and recurring role in renewing the appointment of the judges then we clearly establish those branches as dominating factors in running the courts for their political advantage, and eliminate the independence the founding fathers believed to be critical to a government by and for the people. We are where we are today because politicians believe the courts should be an extension of their political platforms, this step will make that a reality.
I don’t think it would take even a whole generation for us to see the judges becoming subservient to the politicians who appointed them and abandoning any appearance of independence from their masters. Their dual roles in determining justice and protecting the individual will, in my opinion, quickly fall to the wayside as they lobby for the continuation of their appointments. Of course, all this would be done behind closed doors and away from the public providing another reason for an already dubious public to lose faith in the fairness of our legal institution. The only real benefit I see is with the way the Senate now fulfills its “advise and consent” role they would be so busy approving appointments they would have very little opportunity to screw anything else up.
Our founding fathers, having suffered through the good and bad of the English legal and political systems recognized the potential for abuse by the state and were strong advocates for the individual. Most were not in favor of a dominating central government as evidenced by our first attempt at establishing our independence with a confederation of states. The failure of that experiment led us rather quickly to conclude there were certain things a central power was absolutely essential for; among them to ensure the states treated each other reasonably equally, there was a single standard for justice, interstate commerce could flow freely for the benefit of all, and we provided for a common defense of all our states.[1] So, when it came time to actually establish that government the rights of the individual and a recognition for abuse of that consolidated power must have been among the primary considerations, and this is supported by the Federalist papers written to advocate and assure the common people this new government would not grow so strong as to enslave them and challenged by the Anti-Federalist who argued for the rights of the states and local governments as a way to protect the rights of the individual.[2]
His next suggestion dealt with the nature of the republic and how we pass our laws. He recommended we abandon the concept of a representative government and become a “full democracy, with a few safeguards, and have the people of the USA pass the laws by voting for them.”
Let me begin my answer with a disclaimer, “full democracy with a few safeguards” seems to me to be an oxymoron. Either we have full democracy or we don’t, if we have full democracy then any proposed safeguard could be abandoned with a simple majority vote or those safeguards would limit the rights of the majority in the democracy. In a pure democracy, the rights of the minority really don’t matter all that much. I’ll address that shortly, but that opinion aside then how would this work?
How often do we see in the social media an on-going debate over whether we are a democracy or not? Anytime someone gets pissed at a politician, government agency, or even a commercial enterprise they will complain about us living in a democracy. Of course, they will be immediately condemned as an idiot by someone who points out, “no we live in a Republic.” I tend to take a bemused view of these debates and hold they are akin to the philosophical discussion on the nature of angels, or how many angels can fit on the head of a pin? We are a democracy from the standpoint we the people (usually about 55% of the eligible we) do elect people who will represent us, and as such we are a republic where we trust our representatives and all the bureaucrats they have surrounded themselves with will work to protect our interests. There are those who argue they are really protecting the interests of the rich and powerful, and there are those who argue if we just gave them more of our individual wealth they would protect the poor and helpless. I think the former is closer to reality than the later. But in both cases, those positions fail to consider the human condition and inherent human qualities like compassion and greed.
What would a full democracy, with a few safeguards look like? For a nation of 328 (plus) million, growing at a rate of slightly less than 1% per year[3] it would seem an almost impossible challenge to have everyone vote on every law, but let’s assume through modern technology everyone has a smartphone, computer, or embedded chip in their brain, with an app that makes this doable. What changes would we need to make?
Well first off, we would need a constitutional convention to pretty much scrap the constitution as it is written. The entirety of Article 2 is effectively worthless since the idea of a House and Senate vested with the power to borrow money, create laws, regulate commerce, raise an army, impose taxes, fund a post office and declare war, seems completely irrelevant or if not irrelevant, at least redundant. They could be replaced by an army of bureaucrats who would write the regulations and laws while managing the citizen votes necessary to enact them. In a true democracy, all that would be needed for each of these things would be a simple 1 vote majority. I suppose one of the potential safeguards would be requiring something other than that (kind of like what the Senate used to have on Presidential appointments until the Obama administration when the distinguished Senator from Nevada, Harry Reid, found that inconvenient and had the majority in power at the time change it.) The problem with this is a majority of people have voted for a change, just not enough. I would think the outrage by those with the strongest advocacy would be similar to what we see today by those who hate President Trump and are outraged a majority of the urban elite voted for Hillary, but she lost because of that pesky electoral college thingy.
Next, the roles and powers of the President would have to change, for example since there is no Congress almost everything they do would have to be shifted to a bureaucracy controlled by the President. Would anyone pick up the role of “advise and consent?” In a pure democracy that would fall to the citizens. Gosh, it looks like we would have to spend time every day voting on stuff or we just declare him or her as an autonomous entity and let them do what they think is right. Until the age of Trump that usually seemed to be okay with at least ½ the population with the understanding, the other side would get their turn soon enough.
We would also have to rewrite Article 3 to limit the court's ability to overrule the people. Their ability to protect the individual from the mob would have to be reconsidered, for in a pure democracy the decision of the many must be considered as compelling and could not be wrong until the many reconsider them and choose another decision. From what little I know about the amending the California constitutional we see something akin to this with their proposition process, and the danger of too much power in the courts as the California supreme court gets to choose whether a change is constitutional or not. Of course, in a pure democracy, this would probably not be an issue because the fifty or so states would be dissolved since any national democracy would be limited by subordinate governments which might not be as pure as the central system and this would present a nightmare on determining the rights and responsibilities of the individual.
My biggest concern, comes from my limited experience looking at the laws our lawyer-politicians, their staffs, and the lawyer-bureaucrats write these days, is assuming the average person will have the ability to understand and vote with a reasonable degree to knowledge on the subject to ensure we don’t inadvertently declare nuclear war on Antarctica because some bureaucrat is upset with the penguins pouching on her herring supply. Related to this is how we actually calculate the majority, and who gets to decide who does and doesn’t get to vote. What happens if a significant minority decides to just not vote, how do we decide what the required majority value is? Do we just tally up the votes of those interested enough to actually cast a ballot and call that a majority, what if 70% of the eligible voters decided to go on holiday instead of hitting the like button on their app? I know the devil is in the details, but darn it – details are important.
I said earlier I would talk about how the rights of a minority don’t matter too much in a pure democracy, let’s use as an example something based on the last Presidential election. Suppose the bureaucrats were to write a law that said all farmers in the middle of the United States must sell all their grain to a certain conglomerate for a fixed price, and the price they would be paid is limited to their costs. That conglomerate, in turn, must first provide their end products to the major metropolitan centers of Boston, New York, Baltimore/Washington DC, Chicago, Atlanta, Miami, Dallas, Fort Worth, Houston and Austin, Los Angeles, San Francisco, Portland, and Seattle. Everyone in those metropolitan areas would receive that product for free, while anything left over could then be sold to the rest of the nation. How would the majority of the population vote on this? I’m just guessing the majority living within the urban centers would be all for it, the rest of the country not so much. Would the urban centers have enough votes to carry the election as they claim they did in 2016 and this law become the new law of the land? I think history has shown us the activists would carry the day and the minority would have to pay the bill.
Well, that’s my opinion. Thanks, Jimmy for giving me something to think and write about.
[1] United States Constitution, Preamble. We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
