I believe the primary obstacle which prevents our government from acting in accordance with the popular will is a failure of representation. The people we elect are unwilling (or unable) to enact laws and policies that reflect our needs and wants as a nation. A judicious application of sortition may conceivably transform the electoral process; enabling us to choose law-makers better suited. However, even if this lofty goal should be realized there are – in my opinion – other Constitutional issues which must be addressed . Our world has changed far beyond anything that the Framers could have imagined. Some updating is surely called for.
- The objectives of government should be crystal clear without the slightest possibility of misunderstanding. Our existing Preamble lists various competing goals with no guidance on managing these overlapping objectives. I believe that clarification is essential.
- Our bicameral legislature represents an explicit effort to broker a permanent truce between rich and poor, but the “battlefield” (our capitalist economy) is in a permanent state of transformation and the rich (who generally benefit from this evolution) have little incentive to alter the terms of this truce. In fact, they would prefer simply to tear it up. Stonewalling, distraction and gridlock all serve this end. We desperately require a neutral mediator who can force capital to the table and broker the acceptance of flexible new terms for this frayed accord.
If a true congress or convention of citizens should ever actually be assembled the following proposals are those which I would hope to debate in such a setting. I believe they answer both of the above concerns.
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The Senate
The existence of upper and lower houses is based on an archaic view of human society divided between nobility and commons.1 The original distinction no longer applies but our society remains split, and the distinction between rich and poor will inevitably demand some degree of institutional recognition.
If we’re committed to Capitalism then it seems fair capital should have its own voice. Let us, therefore, abandon any pretense that the legislator of the upper house somehow represents the average voter and agree instead that these representatives stand for capital; their seats should be purchased, openly and honestly, in a public auction (proceeds to benefit the Treasury). Let the House represent citizens directly (by means of sortition) and permit the Senate to stand for capital without apologies. What remains (primarily) is the need for some form of mediation between these two antagonistic bodies.
The Court
If the House represents ordinary citizens and the Senate stands for capital, our system requires a neutral mediator/tie-breaker to prevent impasse. There must be a path forward. A true neutral arbiter does not exist but the concept of judicial review may suffice. On any given issue let the Court determine which chamber has the better argument; if a standoff persists, empower the Court to endorse legislation. But first, remove the Court’s overt political bias and then clarify the language of the Preamble to avoid any moral confusion connected with the competing claims of liberty and welfare.
A Court appointed by the Executive and confirmed in the Senate is not neutral, it is a clear creature of capital. An allotted (rotating?) body of Bar members comes closer. Still, even a less partisan court will be influenced by precedent and custom. Major departure from past positions will probably require Constitutional revision; the Court must receive compelling and unambiguous direction from our Nation’s founding document. Specifically, I refer to the Preamble.
Amending the Preamble – It is well established that the liberty of a few powerful citizens may easily threaten the welfare of many others less fortunate (leading to slavery, death and possibly even the destruction of our planet). This is the nature of capitalism or it is simply human nature; whichever you prefer. Living in a world very different from that of the Framers we are now compelled to address the contradiction inherent in these two words. The liberty of markets ends (or should) when it threatens the welfare of society; the liberty of the individual (actual or corporate) must be subservient to the general welfare of all; Justice, Tranquility and the general Welfare are all dependent on the understanding that Liberty has limits. May we all agree then, from this day forward, that the greatest good for the greatest number represents the only legitimate end of Government and that when Capitalism becomes clearly destructive of this purpose some body must intervene. Your liberty and mine; that of your capital and my dog; they are all factors in the general welfare and all subject to restraint. To suggest that we may consider any one of these without also weighing the others is a clear pretext for oppression.
If Capitalism may serve the greater good, let it, but when this ideology fails let the Court restrain it. If my dog must (sometimes) be leashed then so too should your money. Sometimes, your capital may even need to accept commands.
A more neutral Court, acting with very explicit (and unambiguous) humanistic guidance, may finally offer that wise adult supervision which our society is so clearly missing. This is the hope anyhow.
The Executive
Like the distinction between upper and lower houses, the Executive is also something of an anachronism. Throughout human history there has usually been a war on the horizon or disaster at home (often both). These exigencies demanded the speed and stealth of a compact executive body . Unfortunately, the executive has shown itself to be a self perpetuating organ that generates its own conflict (creating three problems for every two that it solves). Abroad, it tears up treaties, subsidizes tyrants and wages secret wars. At home it injects politics into the heart of things which should be above politics; like the environment, medicine and justice. The executive may have been indispensable once but today it has generally outlived its usefulness. War can no longer be considered an acceptable extension of foreign policy; only actions which are clearly defensive may be justified. Domestic traumas (more often created than solved by the executive) are best dealt with by the appropriate agencies. We may not be able to strangle the executive just yet but we would be wise to neuter this dangerous creature as fully as possible. A prime minister is preferable to a president, and a triumvirate of generals is safer than a commander in chief. Appointments should be approved by both houses.
Ideally, the executive prerogative in hiring should be diminished. Can a cadre of professionals not select its own leadership? Would it not be preferable if the various services and agencies kept their professional distance from the daily turbulence of politics? Of course there must be oversight; the various heads should be accountable to the body which created them. But must we encourage political micromanagement? Let the professionals do the job they were hired for. Wouldn’t this be better?
Even if we strip our executive of all legislative, war making and administrative authority they may still play a tremendous role in society. Traditionally, Presidents and Kings have held the power of life and death; I think we moderns should restrict our chief executive exclusively to the affirmation of life, not its destruction. Military and criminal authorities will hold their sway, but let the Chief have the final word when life is in the balance; offering peace and clemency when all other avenues fail. With this noble power and no other I think the executive might be a great cultural leader; a tremendous figurehead and proud ornament for a truly modern and civilized republic. Let our executive be the person we most trust; someone who will restrain the organs of government when they go too far.
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When I set out to elaborate a coherent set of reforms I imagined I was dealing with an abstract problem of institutional architecture. When I was done, however, it seemed as though I may have been thinking like a genuine politician; my recommendations offer concrete benefits to three separate constituencies:
The Rich – The wealthy deserve to be heard, and when they speak it should not be in the debased language of populism. In a true “pay-go” upper house our Senators may speak their mind without fearing the election cycle. Less subterfuge and a new source of revenue for the treasury.
The rest of us – A chance to elect a Representative we can relate to; an ordinary civic-minded American.
The Legal Profession – Why must the law be an object of scorn? Lawyers are the referees in our society but the game is rigged. With fairer rules and a central Constitutional role as arbiter the law might be revered, not reviled. When a majority of citizens view the law as an honorable profession then we will truly be living in a healthy society. Or so it seems to me.
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Government is a vast subject. In his historical narratives John Adams documents a tremendous range of known practice. In that context my suggestions represent nothing more than a cautious reshuffling of familiar institutions. Surely our current distress cries out for some sort of institutional reform. Others may have better ideas but doing nothing hardly seems an option.
Will our society perish because we were too stubborn to contemplate change?
1Yes I am aware of the small state/large state aspect of the Convention but suspect this largely furnished the Framers with an excuse to do what they already wished to do – Copy the English system as closely as possible with its division between Lords and Commons.
Sortition Now 