Establishing an appropriate balance of power in our government is not a simple process. The Founders, brilliant educated men, originally created government ruled by the Articles of Confederation. They soon found that the flaws in that system were very substantial. Lessons learned from several years of flawed government were part of the process of learning a better way to create a government. The result was that the Founders created our present day Constitution. It begins:
“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”
The Founders first government was admittedly flawed. They next wrote the current Constitution which is arguably much better. But they intentionally stated that is was not perfect just ‘more perfect’. The main structure has lasted over 230 years. The Founders fully understood that, with the passage of time, some changes may be needed. That’s why Article V was added. And it has been used 17 times. Guiding principles of our government are stated in the second sentence of the Declaration of Independence. This sentence mentions the word ‘happiness’ twice. It was the intention of our Founders to create a government that would satisfy the people.
Over the past decade, the congressional approval rating has hovered around a dismal 17%. That’s historically low. During this time, both political parties have occupied the White House and held majorities in Congress. Congressional approval rating is a reasonable indicator of the level of satisfaction of the people. In the last decade, we have failed to fully meet the original objectives of our Founders. This justifies a search for government reform.
In recent years, the level of polarization has been unusually high. Voters seems increasingly unsatisfied. Lack of congressional compromise has lead to a perception of a do-nothing Congress and low congressional approval ratings. In the 1960 presidential election, the median margin of victory in individual states by each candidate was 6%. In the last two presidential elections the margins were 16% and 17% respectfully. More than ever we are a nation of red states and blue states.
As the Founders observed the government under the Articles of Confederation, they found major problems with the balance of power. As we look for ways to improve our government today, we also find issues with balance of power.
It seems that Congress picks and chooses which issues it will legislate. Will of the people does not always get out of congressional committees. This is truer for issues of passion as compared to day-to-day housekeeping duties. For example, climate change is a major world-wide issue but our Congress has not recently addressed the issue. The majority of Americans favor and assault weapons ban, but Congress has taken no action. With too few congressional solutions, passion increases, polarization increases and the people’s satisfaction level decreases.
And it seems that Congress is scared, for fear of political consequences, to take up issues related to abortion, or gay marriage, or school prayer. On the topic of immigration, it seems Congress is more interested in keeping the political football in the air than passing meaningful legislation.
Congressional oversight is lacking. Several election cycles have not resulted in a change in behavior. Are entrenched interests hijacking members of Congress between the time of their election and the time to cast votes on these issues?
Some issues end up in the Supreme Court. Our Founders did not intend SCOTUS to solve legislative issues. Yet we find rulings on issues of passion such as reproductive rights, gun rights, gay rights, minority rights, and campaign financing. These rulings were made, non only without the vote of the people, but also without the vote of the people’s elected representatives. The fact that we have no oversight over SCOTUS can certainly be viewed as a flaw in the structure of our government.
In a fully functional democracy/republic, the people should have recourse over the actions of Congress and SCOTUS. Whether it is because of entrenched interests or because of a high degree of polarization, our government is failing to meet some of our expectations. Our balance of power is insufficient. The three braches of government lack appropriate responsiveness to the will of the people.
The Founders gave us Article V. This allows us to make appropriate changes.
Article III created the Supreme Court. We soon found that subsidiary courts were necessary. Ultimate judicial power still remains with SCOTUS. Article I created the legislative branch. We may choose to consider a subsidiary legislative function while allowing ultimate legislative power to remain in the hands of Congress. Article I, Article II, and Article III may be altered without changing the ultimate power of each of those branches of government. The proposal outlined below is intended to improve the balance of power.
It is called R-60.
This pseudo 4th branch of government involves a vote of the people. The Declaration of Independence states ‘Prudence, indeed will dictate that Government long established should not be changed for light and transient causes’. Certainly, a vote of the people to create legislation must be considered cautiously, and in the context of the advice of our Founders. Our Founders, at the time that they created the Constitution, feared direct democracy because government could be subject to rule by passion rather than reason and logic.
R-60, although it involves a vote of the people, is not an appropriate example of direct democracy. In fact, R-60 may reduce the influence of issues of passion from the day-to-day government function and encourage our elected representatives concentrate their candidacy and representative actions on government management. Candidates can and will be elected by being cheerleaders for favored issues of passion (i.e. gun rights, climate change, abortion and immigration) while their qualifications for government management may be overlooked. Resolving the hot-button issues by popular vote may reduce the ammunition of the cheerleader/candidate. It’s harder to run on a platform that declares that the voters of this country were wrong.
In a direct democracy, voters may initiate ballot proposals. R-60 can only be initiated by State governments, not individual voters. An appropriate number of State governments may place an issue on the ballot for a national vote.
This national referendum may be vetoed by a majority vote of both houses of Congress. This gives the ultimate legislative power, in full accordance to Article I, to Congress. It is noted that overturning a vote of the people may have negative political consequences.
A 60% majority vote is needed to pass an R-60 ballot proposal. Razor thin victory margins are more likely to cause a backlash by the minority faction and increase the likelihood of a congressional veto. Creating a high bar for success may reduce the number of ballot proposals.
Article II will be altered as the President will not have veto power over a successful R-60 proposal. Just as a supermajority of Congress can override a presidential veto, the supermajority of the people can prevent a presidential veto.
Article III will be altered as the Supreme Court will not have the power of judicial review over a successful R-60 proposal. This is oversight of SCOTUS. Successful R-60 proposals may overturn rulings by SCOTUS. The court was given power to interpret the Constitution but not to make rulings that effectively legislate from the bench. Rulings based, in part, on political bias are also a concern. Thomas Jefferson said this about judges:
“Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of corps… Their power (is) the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to elective control.”
Creation of R-60 gives more weight to a vote by a supermajority of the people than to nine potentially biases judges.
The power of judicial review will fall to Congress. Effectively, we will have 535 judges who each swore and oath to uphold the Constitution. Congress may veto a successful R-60 proposal on the grounds that it is unconstitutional.
In Congress, a very small number of elected representatives control the legislative process. And when those very few elected representatives, for numerous possible reasons, block action on an issue favored by the majority of the people, it is a failure of our democracy/republic. And history has shown that single issues may not be enough to cause those elected representatives to be voted out of power. Just a few people in one political party can cause an issue to be tabled indefinitely. But if the state legislatures have the power to initiate an R-60 proposal, then 50 disparate groups also have the legislative opportunity. If a small group of states wished to initiate a ballot proposal on climate change or overturning Roe v Wade, or allowing voluntary prayer in schools, then a vote of the people could legislate the issue rather than all Americans being forced to tolerate the whims of those few elected officials that control Congress. This would be congressional oversight.
In order to achieve R-60, an Article V convention will need to be called to begin the process of amending the Constitution. The amendment must be ratified by 38 states. At the convention the number of State approvals needed to initiate and R-60 proposal will be decided.
Achieving positive results for any issue of concern will be a two step process. First, amend the Constitution to adopt R-60. Secondly States will agree on specific language of a ballot issue. In both cases, voters need to contact their state legislators to promote their wishes. This process allow voters to bypass the US Congress and still achieve action on issues of concern. Influence of special interests on the process may be greatly diminished.
Balance of power is an important key to the proper function of our government.
Dale Leitzke