Our governing laws have two parts. First we have the Constitution. It’s like the framework of a house; the bricks-and-mortar, walls, and roof trusses. Secondly we have the built-out portion, the laws made by Congress, or the carpeting, cabinets, and mechanical systems of the house.
Congress can initiate changes to either part of our laws, framing or built-out part. Article I gives sole power to change laws to Congress.
Article V allows the States to circumvent Congress if and when that becomes necessary. Not only is that a heavy lift, but it only deals with the framework, not the built-out portion. The States can, for example, add a new porch roof to the house but cannot change the carpet or cabinets.
The Founders assumed that it was best to give all of the lawmaking (for the built-out portion) power to Congress. This is part of the Constitutional framework. It works so long as Congress is responsive to the wishes of the constituents. The Founders did not foresee a need to have oversight of this area.
But is seems that controlling members of Congress have formed a union. Special interests have unionized Congress by adding their money to the process. The union decides if the carpeting needs to be replaced or the walls need to be painted or if these needs should continue to be ignored. Because of this ‘union’ the built-out portion of our legal system is out of reach to anyone except the special interests. And this is all legal under our existing Constitution.
21st century democracy institutes a right-to-work law. It recognizes that the Founders did not foresee the formation of a special-interest union that has the power to control Congress. Our country needs a new coat of paint and some of the carpeting needs to be replaced. The only remedy within the Constitution is found in Article V. 21st century democracy involves the changing of the framework that gives all of the lawmaking power to Congress. Ultimately we need to decide if the government’s framework exists at the pleasure of the people or if we must tolerate perceived government abuses just because we cannot break the special-interest union.
The proposed 28th Amendment
Congressional actions are intended to be an approximation of the intentions of the voters. It’s not perfect representation, with our without the presence of a special-interest union. Therefore an actual national vote on an issue should have priority. By taking a one-issue vote, the clarity of voter intentions is also increased because the issue is not muddied by other parts of a congressional bill. If government and government laws exist at the pleasure of the people then voters should have the opportunity to participate in the lawmaking process regardless of the intent, or potentially mal-intent of their elected representatives.
A national vote needs to clearly represent the wished of the people. A successful vote with a razor thin margin would lead to a potential backlash by those who say that their congressional district or their state was not fairly represented. Our Declaration of Independence states “Governments long established should not be changed for light and transient causes”. The vote should make it absolutely clear that not only the majority of voters, but also a majority of Congressional districts. Statistically we may want to be 99% sure of this. A 60% plurality may accomplish this clarity.
This Constitutional amendment changes Article I of our Constitution. It provides a second method for lawmaking. The direct vote provides a more relevant method of representing the wishes of the people. Laws made by this direct vote method are similar to other laws made by Congress.
Nothing prevents the law created by direct vote from being overturned by Congress; just as Congress may choose to overturn other laws. However, voter backlash would certainly be expected in that case. However, Congress must take an up or down vote or a repeal and replace vote on only one issue.
This national referendum concept also provides a great opportunity or scary consequences, depending on one’s perspective. Each potential national referendum will have opponents. One of the first items on the opponent’s checklist is to see if the referendum is unconstitutional. Political pundits may be quick to grab any thread of unconstitutionality and make that case in the national media. Indeed most national referendum issues will quickly find themselves in federal court. That leads back to the basic question. Does government exist at the pleasure of the people or are we servants of the establishment, including media manipulators. If democratic government exists at the will of the people, then Article III and the Supreme Court are just part of our government.
We must decide, as a free people, which has priority, a Supreme Court ruling, or an appropriate plurality vote by the voters. If referendum votes are tied up in federal court for years, the whole concept may fall apart. And the result is that the special-interest union will continue to have the opportunity to dominate our government.
When push comes to shove, the Supreme Court is a group of only nine people. Political bias may or may not affect an individual vote. And the Supreme Court was not designed as a lawmaking body. The common perception that this court may sometimes legislate from the bench, rather than interpret law, shows a weakness in our government.
Supreme Court rulings are often extrapolations and somewhat subject interpretations of the words in our Constitution. Previous court precedents weigh heavily. But court precedents were established by educated lawyers. Educated lawyers are only a small fraction of the voters. Law evolution may sometimes be in a direction not approved by the people. An appropriate plurality vote by the people may directly challenge laws that evolved. If the majority of states and the majority of Congressional districts vote against a Supreme Court ruling, then perhaps we may consider the vote to overturn the ruling.
If we choose not to let the appropriate plurality vote overrule a Supreme Court ruling, then we have rubber stamped the courts ability to issue biased rulings (which may have been the design of Presidents appointing biased judges). And, indirectly, we have cemented the ability of the Supreme Court to legislate from the bench.
An example is provided here for clarity. The Citizens United ruling has a great effect on campaign financing. The words of the Constitution do not include campaign financing. Related rulings have evolved over time. If and when a campaign financing referendum is passed it would probably be in non-compliance with Citizen’s United. One may argue that a 60% plurality is not enough. But that’s not the real question. As the law is stated today, if 100% of the voters opposed the ruling, that would be irrelevant. Even though it is irrelevant, should it be? It certainly should not be irrelevant if government serves at the pleasure of the voters.
Methods used to initiate a referendum are open to discussion. Care must be taken that the country does not end up with too many referendum or too few. A bar such as signatures of 5% of the registered voters may be set. Alternatively States may apply to initiate the referendum. Perhaps, if 15% of the states submit an application with the same exact wording, this would place the measure on the ballot. A grass roots effort may be more cumbersome and expensive but we must consider than State lawmakers may be influenced by the special-interest union and may choose to not initiate the referendum.
In theory, referendums could be held every year, every two years, or every four years. The number of referendums on the ballot will be limited. Care must be taken as to not put the same failed measure on the ballot in consecutive elections.
A referendum cannot change the constitution but it can alter its interpretation. From this perspective it can overrule the Supreme Court. But Congress may still overrule a successful referendum. Congress cannot overrule the Supreme Court. It’s a system of checks and balances. The President has veto power over Congress but the final power lies with Congress because it can override the veto. The President cannot overrule the results of a successful referendum. The 60% plurality is stronger than a congressional vote and effectively is already strong enough to override a potential Presidential veto.
Selling the referendum
Line up all of the completed proposals that could be voted on;
Direct election of the President
Reduce prescription drug costs
Campaign finance reform
Overturn Roe v Wade
Prayer in public schools
Climate change legislation
Then get those organizations to promote the 21st Century democracy proposal through and Article V convention.