Monday, December 29, 2003
It's pretty slow at work this week, so I'm going to take the opportunity to put down on pixels some thoughts about our system of government, on what principles it operates, and how it might be reformed in a manner in accord with those principles. I was originally going to title this piece "Four Constitutional Amendments To Pass Before The Federal Marriage Amendment" and perhaps I will if I do anything with this.
The enthusiasm in some precincts of the American right for an amendment to prevent the redefinition of marriage is, I think, more a cry of anguish than a reasoned response to a real problem. With only tepid support around the country, the amendment has essentially no chance of passing. The various versions of the amendment proposed do either too much (prohibiting any public recognition of same-sex relationships), too little (providing only a defense of the word "marriage" without any explanatory context), or both (banning any public recognition of homosexual relations while explicitly permitting a wide array of "marriage light" alternatives so long as they are not predicated on an implied sexual union). In all cases, they write into the Constitution matters that are emphatically not constitutional concerns. The only reason any amendment is being supported is that many religious conservatives fear that the Court will soon impose this redefinition on the country whether the country wants it or not, and they see no other way of stopping the Court but writing into the Constitution: STOP! But they have not addressed the structural problem of a lawless Court; they have only revealed the depth of their anger about this one issue. And they would put beyond the reach of democratic politics an issue that is entirely properly the subject of democratic politics. Marriage is a pre-political institution, but whether and how our political organs choose to recognize and regulate it is a political question, not a constitutional one. And so, because it will fail and because it would be a bad idea if it succeeded, I do not support the FMA.
But the problem that supporters of the amendment have identified is real. We are to a great extent at the mercy of a Court that, while it has greatly moderated its enthusiasm for depriving citizens of their individual rights since the days of forced busing and the like, has ceded none of the authority that it claimed in those days to usurp our collective sovereignty. Indeed, this Court is as emphatic as any of its forebears in asserting that its word is law. And that is not the case. That is the problem to be addressed, or part of it. And to address it, the problem must be understood.
The problem is one of the legitimate source of authority, and so to understand the problem we have to understand how authority works in our political system. Our political system is sometimes called a Republic, sometimes a Democracy, but neither term is entirely correct. A Republic, classically, means an entity governed collectively by those who form it, historically meaning the notable families of a region. Venice was a Republic, but it was in no sense a Democracy; only the nobles voted in the council, and elected the various officers to whom authority was delegated. In the Roman Republic, the Senate was similarly constituted; the tribunes of the people, from which the office of Emperor evolved, were a democratic check on the republican Senate. The Polish monarchy was similarly republican in character, with the king elected by the noble families; its constitution was characterized by executive weakness, as the various nobles were more concerned with maintaining their own freedom of action than in collective strength. But whether a Republic's central institutions are strong or weak, the essence of the system - a compact among strong parties for collective action - does not, in truth, characterize our political system.
Our system is, indeed, democratic, just as it is republican, but Democracy doesn't ideally describe it either. Democracy means rule by the people. In Athens this meant voting by a majority of citizens on questions of the day. California is to some extent a Democracy, governed as it increasingly is by the electorate at large through the initiative process, but this is the exception rather than the rule in our political system. Moreover, it is plain from reading the Federalist and other documents from the Founding that the notion that our government was intended to express the people's will - which I would argue is the essential premise of Democracy - was a decidedly minority view (albeit one held by very significant figures, including Thomas Jefferson).
Properly, I think, the core premise of our system of government is not a kind of social compact among propertied families (the premise of a Republic) nor an expression of the popular will (the premise of a Democracy). Rather, the premise of our system is popular sovereignty: the reign of the People.
To understand what this means, think of a traditional monarchy. The monarch does not necessary rule. He may do so, of course, but in most cases he does not; even in traditional monarchies where the monarch has the clear right to rule, he usually delegates that task to others more expert in taxation, diplomacy, etc. And when he delegates this power, and vests his power in a chancellor or prime minister or grand vizier, the monarch does not, primarily, seek an individual who best divines his will, but rather one who best divines his interests. Of course, should the monarch express his will on one or another matter, his chancellor is bound to obey. But this is the exception, not the rule, in their dealings. Indeed, if the monarch found it necessary to continually assert his will, it would suggest that he employed the wrong chancellor.
So with our system. Our system is the creation of the sovereign People, an abstract collective, not the compact of individuals. This much is clearly implied by the preamble to the Constitution and was settled by force of arms from 1861 to 1865. (As a historical matter, the People of the United States may have come into being as the result of a compact, but ontologically the People as a collective is prior to the state, even if the historical chronology went the other way.) We are "one nation, under God, indivisible," or so we affirm (the Ninth Circuit's objections notwithstanding). But our government is not, in the course of ordinary politics, the vehicle for expressing the popular will. Rather, it is the vehicle for safeguarding and advancing the people's interests.
The democratic aspects of our system, in this view, serve primarily a corrective function rather than an expressive one. They enable the sovereign people to remove a representative in whom they vested power when, in the judgment of the people, that representative has failed to serve the interests of the people faithfully and diligently.
Now, human nature being what it is, it is far from unheard of for the officer of the sovereign to become corrupt, to cease to perform his functions faithfully. This can happen even if the officer is not unduly influenced by some foreign interest; indeed, the most likely corruption is that the officer will engage in self-dealing, either for personal enrichment or, even more dangerously, to arrogate to himself the prerogatives and powers of the sovereign. The chancellor may identify his interests rather than the monarch's as his object, and steal from the state; he may do the same more "idealistically" and decide that the preservation and enhancement of his own personal power over the resources of the state is the proper aim of his administration.
This is what has happened, in various ways, to our system of government. From the right, the complaints are voiced most loudly about the Court, which has decided that it, in its enlightened wisdom, is the most fit arbiter of certain categories of political questions. It has been successful in this usurpation of the role of the legislature, however, because the usurpation serves the legislature's interests - the legislature, after all, is thereby freed from making decisions, and the fewer decisions the legislature has to make for the same pay, the easier the lives of the legislators and the less likely they are to be to be voted out of office. To restore to our system a recognition that the people are sovereign, then, it is necessary not for the people to opine on specific political issues directly (which is what it does when the Constitution is amended; if the FMA passed, the People of the United States would be expressing their sovereign will about the meaning of the word, "marriage," which is a strange thing indeed for the People to express their will about). Rather, it is necessary for the sovereign people to remind their representatives in whose name and interests and at whose pleasure they serve. What is needed is an injection of accountability.
To that end, I have compiled a list of four proposed amendments to the Constitution designed to restore that accountability. None of these deal with any hot-button social issue; none is obviously a left- or right-wing measure or predetermines any policy outcome; none creates new rights nor abolishes old ones. The objective is structural reform: to make the Constitution work better according to its original principles. Moreover, while these amendments are mutually-reinforcing in their effectiveness, they are independently good ideas, so it's not like passing one while failing to pass another would result in a worse situation than the one obtaining currently.
[Note: I have not attempted to write these amendments in legally proper language. I'm trying to communicate the intent in plain language to the best of my ability.]
Here's the list:
ONE: AN AMENDMENT TO ABOLISH GERRYMANDERING. Congressional Districts for each of the states shall be drawn on a decennial basis following reapportionment of Congressional seats among the states by independent commissions chartered by the legislatures of the several states. To the greatest extent practicable, each Congressional District will be constructed to contain an equal number of legal residents. Subject to that preeminent condition, each Congressional District will be constructed to follow intra-state political boundaries to the greatest extent practicable. Subject to that subsidiary condition, each Congressional District will be constructed to follow natural boundaries and will be constructed in a compact form to the greatest extent practicable.
Why abolish gerrymandering? Because the body most directly accountable to the people, and which should therefore be most acutely responsive to their interests, is the House of Representatives. But gerrymandering eliminates accountability, providing effective life tenure for the majority of Representatives, encouraging the corruption of their office and encouraging other branches to usurp their authority. The moral authority of Congress carries little weight when as few as two dozen seats are actually contested in a typical election. Restoring accountability starts here. And the only way to restore accountability is to take redistricting out of the hands of the state legislatures and put it in the hands of an independent commission. There is no reason to think that such a commission would necessarily be corrupted; with contemporary computer technology, redistricting is a technical exercise, and the only question is whether one optimizes to achieve sensible-bordered and compact districts or crazy-quilt gerrymanders that minimize political competition. There is no basis in the Constitution currently to force states to adopt such a commission, and there are strong political disincentives not to do so wherever there is a partisan advantage to gerrymandering, which is the case in most states. Moreover, there's a first-mover disadvantage to adopting such a proposal in any one state where a gerrymander creates an artificial dominance for one party. Therefore, solving this problem and restoring accountability to the Congress requires a constitutional amendment.
There are a handful of subsidiary benefits to this amendment. First, it makes clear in passing that only legal residents (citizens and aliens legally residing in the country) should be counted for the purpose of apportioning districts equally. This removes an incentive on the part of certain localities to encourage illegal immigration for the sake of increased representation. Second, it writes into the Constitution the one-man-one-vote rule that is currently absent from the document, and was invented by the Court; it's a good rule, but it isn't there and so writing it down would be a good thing. Third, would eliminate the currently intractable disputes over racial gerrymandering. Currently, the Court has found that gerrymandering to eliminate minority representation is illegal, while gerrymandering to increase minority representation is sometimes mandatory and sometimes illegal, depending on how flagrant it is - an obviously untenable state of affairs.
TWO: AN AMENDMENT TO REVISE THE ELECTORAL COLLEGE. Within each state, one elector will be chosen based on the plurality victor in the Presidential balloting in each Congressional district, and two electors will be chosen based on the plurality victor in the Presidential balloting for the state as a whole.
Why amend the Electoral College? Why not abolish it altogether, and go to a national plebiscite? Why, for that matter, not go to a national plebiscite with instant runoff voting, as a number of process-oriented liberals have favored?
I'll tell you why. The Electoral College serves a very important function: it reduces the leverage of fraud in the electoral system. In the last Presidential election, victory depended on the outcome in one state - Florida - that in turn hinged on only a few hundred votes one way or another. Fraud to the tune of a few hundred votes is far from inconceivable; indeed, it's likely common, in both parties. If you got rid of the Electoral College, the entire country would look like Florida, and any race that came within fifty thousand votes would probably be contestable, because fraud on that scale for the nation as a whole would not be difficult.
Moreover, the Electoral College encourages candidates to focus on "swing states" and ignore their safest territories. Bush will not be campaigning in either Texas or Massachusetts much, and neither will the Democratic nominee, because these electoral votes are locked up respectively for the Republicans and the Democrats (at least for this election). Rather, both candidates will be spending a lot of time in states like Michigan, Wisconsin, Missouri and Ohio that could go either way. This is a bad thing to the extent that Presidential campaigns are not responsive to the needs of the citizens of Massachusetts or Texas. But it is a good thing to the extent that you want campaigns to be forced to the center of the political spectrum rather than out to the fringes, and it seems to me that basic risk-aversion should make want exactly that. (We don't want the electoral system to go spinning off in some crazy direction even if that is our transient will; we want it to reflect our interests, which are more served in general by a more stable system. More specifically, inasmuch as we are a collective entity - and as the sovereign people, that's what we are - we cannot but want the political system to pull us together rather than pulling us apart, so the more our political system tends towards a dynamic center and the less it pulls centrifugally towards extremes, the better.) But within each state that is "in play" politically, the incentive of the winner-take-all Electoral College is to "energize the base" even if that means increasing political polarization. A national plebiscite would make this a national phenomenon; rather than ignoring New York and Texas, Presidential candidates would campaign primarily in these states, trying to run up the total among the most committed voters, and would devote less attention to swing states like Missouri and Michigan. This would polarize our politics and reduce accountability to the people as a whole.
Preference or "instant runoff" voting would make polarization even worse. A lot of commentators who write on this topic behave as if the universe of political alternatives were fixed, and that the political-science problem at hand is just how to best express the preference of the voters. But this is not the case; there's feedback from the system to the alternatives. In any runoff system, a strong incentive develops to vote for extreme and/or parochial candidates for one's first choice, because there is no perceived downside to doing so. Even if these candidates don't win, your second-choice vote will be counted, so you'll still get someone you "prefer" in office if your side (broadly construed) gets a majority. But this very incentive means that more and more energy, money, etc. will go to fringe candidates and campaigns, to the detriment of the general interest. And as this process accelerates, it becomes possible for fringe candidates to start winning (or nearly winning) elections. Suppose you have three candidates running for office: a far right, a far left and a centrist. The far right candidate wins 35% of the first-round, and all his voters vote for the centrist for second choice. The far left gets 33%, and all his voters vote for the centrist for second choice. The centrist gets 32%, and his voters go 18% for the far left, 14% for the far right for second choice. Since the centrist got the fewest votes, his second-choice ballots are counted next, and the result is that the far left candidate wins by 51% to 49%, even though a majority of the electorate preferred the centrist to the far left candidate and even though the far right candidate won a plurality of the first-round votes. Immediately after the banks are nationalized, of course, the far right candidate will seize power in a military coup.
I'm not saying this sort of result is the inevitable result of preference voting. But it's a risk, and it's a far more serious risk than the "illegitimacy" that Bush faced after losing the popular vote, because, while any system can have a tie, our system encourages parties to hew to the center and be responsive to the largest bulk of the people, and ideally to the people as a whole, while a national plebiscite with preference voting would do precisely the opposite: encourage extremism and fracture the electorate. This is what happened in France in their last Presidential election: Le Pen's far right party captured the second-most votes in the initial election. Admittedly, he was defeated overwhelmingly in the runoff, and in a preference-voting system he would have also been defeated (and who knows who would have won - how many fifth- or sixth-place votes were for the Socialist rather than for Chirac? For that matter, how many were for Le Pen?). But that's not the point; Chirac now presides over a country where radical alternatives (mutually-contradictory ones, mind you) have been empowered, but where he nonetheless received an overwhelming mandate as a result of electoral peculiarities. This outcome does not, to say the least, hold him optimally accountable to the French electorate.
I propose revising the Electoral College not to move in the direction of direct election of the President but to move in the opposite direction: to reduce the leverage in the system even further and force the parties to be more responsive to the people as a whole. Assigning electors based on Congressional districts would make Presidential campaigns responsive to a wider spectrum of the country geographically, would make it harder to win elections by running up the base in key states, and would make it harder to steal an election through fraud.
My one reservation about this amendment is that, so long as Congressional gerrymandering continues, this amendment would not really achieve its objectives. While the goal of reduced leverage generally and greater geographic responsiveness would be achieved, the goal of greater accountability to the electorate as a whole would not; now, the President would be elected not by swing states but by a handful of swing districts. Therefore, it would be vastly better if this amendment were passed only after or in conjunction with passing the prior amendment abolishing gerrymandering.
THREE: AN AMENDMENT TO PROVIDE FOR VOIDING OF SUPREME COURT RULINGS. By a simple majority vote, the House of Representatives may call for consideration by the Senate to void a ruling of the Supreme Court. In response to such a call for consideration by the House, by a two-third majority, the Senate may void any ruling of the Supreme Court.
There have been various proposals for making it clear to the Supreme Court that its voice is not the final word on the law: to have Congress declare this or that law exempt from judicial review; to have Congress try judges for impeachment; to abolish judicial review entirely. None of these strike me as a good idea. There is no particular law that I can think of that should be exempt from review, even assuming that the Court would respect such a declaration, and if it did then partisan pressure would quickly mount to exempt all favored laws, in a tit-for-tat fashion, until judicial review is completely undone. Similarly, there is no particular judge I can think of who deserves impeachment. I don't much like Justice O'Connor's jurisprudence in general, but I've seen worse, and she is only laboring in fields that were plowed long before. In any event, take her head and partisans of the other side will demand a trophy of their own.
It is entirely sensible for the Supreme Court to arbitrate whether decisions of the legislature traduce the clear meaning of the Constitution. This is an important check upon what might be an ill-considered whim of a transient majority. There is no "countermajoritarian difficulty" to the Court's work because our democracy is not construed to be Rousseau-ian in character. We want the government to be accountable to the sovereign people, not to be the echo of its will. But where the Court makes bad law out of hard cases - or hard cases out of clear ones - and where no transient majority but an overwhelming one rejects the Court's interpretation in the name of the sovereign people, that majority must be able to rebuke the branch that overstepped its authority. Without such a check, the Court may begin to think that it is sovereign - or, an equal fault, to fall into a kind of clericalism, thinking the constitutional document to be sovereign and themselves to be the privileged interpreters thereof, which I think comes closer to our actual situation.
The proposed amendment consciously echoes the procedures for impeachment, and with good reason: it is not to be presumed that the House and Senate would lightly tread upon the Court's prerogatives and rebuke it over trivial matters or matters where sensible people might reasonably disagree over the best interpretation. But in extraordinary cases of brazen usurpation, the right and power of Congress to overrule the judicial clerisy would now be clear.
This would have several positive effects. First, the Court would be leery of receiving such a rebuke, a hence more deferential to the legislature. Second, any such rebuke would have the effect of limiting judicial power rather than transferring that power to the legislature. Thus, the legislature could not overrule a verdict of the court (for example, deciding for the plaintiff rather than the defendant in a suit) but merely to void that verdict. If the Court struck down a law, Congress would void that striking down, and leave it to the Supreme Court whether to reconsider and rule again or simply drop the subject. If Congress voided a judgment in a suit where a verdict must be handed down, then of course the Supreme Court would perforce reconsider - and would be within its rights to hand down the same verdict, perhaps on other grounds. In any event, Congress would be overwhelmingly likely to use its new power, or the threat thereof, to protect its own legislative prerogatives and those of the state legislatures rather than to attempt to arrogate to itself the judicial function in cases of common law. Third, Congress would no longer be able to get away with letting the Court make policy in sensitive areas where legislators fear to tread. With the power in hand to undo what the Court legislates, Senators could not pass symbolic legislation by overwhelming margins to express their outrage and then wave their hands and return to their states and say: there's nothing we can do, for the Court has spoken. Those margins will come down (the Court does pay attention to polls; they don't go that far out on a limb), and far fewer such laws will be passed. But when they are passed, they will have teeth.
FOUR: AN AMENDMENT TO CLARIFY CERTAIN ASPECTS OF CITIZENSHIP AND TO PROVIDE FOR ALIENATION. No citizen of the United States may accept citizenship in any other country or make himself subject to any other sovereign. Any citizen of the United States who accepts such citizenship or makes himself so subject, whether by voting in an election in a foreign country or serving in a foreign military or by other means, shall be deemed to have renounced his American citizenship and have alienated himself from the United States of America. Other than for treason or other armed offense against the government of the United States, no citizen so alienated shall be denied the privilege of legal residency in the United States, notwithstanding his alienation. Except where extended by legislation to non-citizens, the privileges and immunities of the citizens of the United States are reserved to the citizenry. Following the decennial census, each state shall be apportioned a whole number of seats in the House of Representatives according to the proportion of citizens and legally resident aliens residing in that state.
This is a relatively narrow amendment and is primarily symbolic in its purpose. Which is: to make it clear that citizenship in the United States is not a collector's item but an honor, a privilege and an exclusive loyalty, and that citizenship is not to be confused with other conditions. Only citizens can vote, and only citizens can serve on juries. Some of the rights specified in the Constitution accrue to citizens of the United States; these should be understood as privileges of citizenship rather than the birthright of all humanity. (The amendment uses the phrase "privileges and immunities" specifically to draw the Court's attention to his neglected provision of the 14th Amendment, in the hopes that the Court will pick up the challenge to rest its incorporationist rulings on a more secure basis in this wording.) Dual citizenship is inconsistent with the theory behind our political system. There is no intention to disrupt the life or livelihood of anyone who chooses to become a foreign citizen (hence the provision that alienated former citizens cannot lose the status of legal resident) but you can't be an American citizen while serving as President of Yugoslavia, or mayor of Guadalajara, or an officer in the Israeli Defense Forces. Finally, basing apportionment on legal residents rather than all residents removes another important incentive (at the state level) for governments to encourage illegal immigration. If California accepts large numbers of illegal immigrants and gets no political benefit, they'll have a greater incentive either to work with the Federal government to reduce that immigration or to work with the Federal government to divert that immigration into legal channels. Either is preferable to a system of winking illegality. Once again, the objective of the amendment is to make the government more responsive to the sovereign people, in this case by clarifying who is and isn't part of said people.
In that regard, there are a number of proposals that I have not adopted here. I have not abandoned birthright citizenship, for example. There's legitimate worry in some quarters about "obstetric tourism" - people who come here to give birth, and thereby establish a toehold citizenship. I don't believe that this amounts to a very significant proportion of immigration into this country, and if eliminating birthright citizenship were the only way to end this practice then the cure would be worse than the disease. Countries that lack birthright citizenship - e.g., Germany - have, as a consequence, nurtured generations of unassimilated immigrants who have no home in the country and no home outside of the country. These people have become a serious political problem in a number of countries; this is a problem we don't need to have. I don't think we need radical surgery on the Constitution in this area; just a little minor tinkering around the edges that will, over time, pack considerable clarifying punch.
That's my list. You will note some traditional "accountability" measures that are missing. I do not believe that campaign finance "reform" does much good. (I don't think it does as much harm as its critics think either.) It seems quite clear that the Nixon-era reforms' primary effect was to empower corporations and unions over individual wealthy people; the primary effect of the latest round of reforms is to weaken parties and strengthen ideological groups and quasi-parties that will typically be under the control of one person or a group of like-minded people. Money will still flow into politics, just through different paths. Will politics be less corrupt? Maybe, though the evidence of classical quid-pro-quo corruption was pretty low before McCain-Feingold, and the evidence of interest-group influence of politics is just as good now as it was before the law was passed. In any event, it escapes me how a reform that gives incumbents a bigger fundraising advantage makes our representatives more accountable.
I also have little interest in the right's old favorite for promoting accountability: term limits. Interest in this little reform seems to have flagged since Republicans started winning Congressional elections, and what a surprise that is. But that's fine with me. Lame ducks have less incentive to respond to the interests of their nominal constituents, and term limits laws increase the supply of lame ducks. Term limits reduce voter choice rather than increasing it. So long as districts are gerrymandered, the more frequent elections to replace term-limited Representatives will only result in intra-party contests, and so will not significantly increase accountability, and if gerrymandering is abolished then there will be more competitive elections anyway, and so less need for term limits. Throw the bums out if they don't do their job, I say; keep 'em if they do.
Finally, I have little interest in Perot-style direct democracy (an invitation to demagoguery and incompetent governance - look at California) nor in non-partisan elections, which, if they have runoffs, have all the faults of runoff systems described above and, if they don't, raise the prospect of truly bizarre outcomes. Besides, I think parties are good things: they provide political discipline and clarify debate. They nurture talent for both governance and communication. They force people in disparate parts of the country and with different economic, social and ethnic backgrounds to form coalitions and figure out how to get along in them. They make compromise possible and make it clear when it is impossible. It's good to force the electorate to choose between well-defined alternatives, and it's good to have parties compete to win the electorate's confidence. Initiatives and nonpartisan elections weaken parties, and I believe that weakens government accountability rather than strengthening it.
And I've also left off my list all the hot-button amendments proposed in recent years. No balanced budgets. No definition of marriage. No defense of the flag. Nothing to fight the culture war or tilt the policymaking playing field this way or that. Just stuff that's supposed to be in a Constitution: the procedural stuff that makes the political system work the way it's supposed to. Am I a goo-goo or what?