Establishment of 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 out 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 started out with a flawed form of government. This one was better. But they intentionally stated that it was not perfect, just more perfect. Its 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. The second sentence mentions the word ‘happiness’ twice. It was the intention of our Founders to create a government with a primary objective to 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.
During this time frame, the level of polarization has been unusually high. In the 1960 presidential election, the median margin of victory for individual States by each candidate was 6%. In the last two elections, that median margin of victory for individual States was 16% and 17% respectively. 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. The 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 issues are recognized as a major issue on a world-wide basis, but our Congress has not recently addressed the issue. The majority of Americans may favor an assault weapons ban, but Congress has taken no action. With too few congressional solutions, passion increases and polarization increases.
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 of these issues end up in the Supreme Court. Our Founders did not intend SCOTUS to solve legislative issues. But, on issues of passion, we find rulings on reproductive rights, gun rights, gay rights, and campaign financing. These rulings were made, not only without the vote of the people, but also without the vote of the people’s elected representatives. We have no oversight of SCOTUS.
In 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, Congress is failing to meet some of our expectations.
Balance of power is insufficient. The three branches of government lack full responsiveness to the will of the people. The Founders gave us Article V. This allows us to make appropriate changes.
Article III created SCOTUS. We soon found that subsidiary courts were necessary. But the ultimate judiciary power remains in the Supreme Court.
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 all 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. Many fear direct democracy because the government could be subject to rule by passion rather than reason and logic. This proposal falls short of direct democracy for three reasons. It’s not just a majority vote, it’s a supermajority vote. It’s initiated by elected representatives of state governments not directly by the people. And it is subject to veto by Congress.
27 states allow some form of referendum. A very substantial number of countries have national referendums. Negative consequences as a result of these direct democracy initiatives have been very limited.
R-60 requires a 60% majority to pass. Razor thin margins are more likely to cause animosity and backlash by the minority faction and increase the possibility of having one or more additional referendums. And the probability of a congressional veto increases with smaller victory margins. Creating a high bar for success may reduce the number of ballot proposals.
Note that R-60 alters Article I by creating a second method of creating law. This pseudo 4th branch of government has congressional oversight. R-60 proposals may be vetoed by Congress for any reason. But if 60% of the people vote for the proposal, any veto may have negative consequences at the polls. That’s a reasonable balance of power and creates some degree of congressional oversight. Initiation of an R-60 referendum is intended as the consequence of Congress not taking up an issue that is important to voters. Influence of entrenched special interest on congressional votes will be overshadowed on the issues addressed with R-60.
Article II will be altered as the President will not have veto power over a successful R-60 proposal. Just has 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 SCOTUS will not have the power of judicial review over a successful R-60 proposal. As a lawmaking body, R-60 is expected to pass laws that conform to the Constitution. In the case of R-60, judicial review will be executed by Congress. Effectively, we would have 535 judges who each swore and oath to the Constitution. The power to veto an R-60 proposal on the grounds that is violates the Constitution will rest with Congress.
This is oversight over SCOTUS. R-60 proposals may overturn rulings by SCOTUS. The court was given the power to interpret the Constitution but not to extrapolate those rulings in a potentially biased direction. Creation of R-60 gives more weight to the opinion of the supermajority of the people than to nine potentially biased judges.
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 their corps…. Their power [is] the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control.”
In addition, a recent development may be relevant. In a public confirmation hearing, our most recent addition to the Supreme Court said, in a passionate voice, “what goes around; comes around”. In context, this was a clear threat to those who opposed his nomination and the party that they represented. The concept of unbiased judges on the Supreme Court may no longer be valid.
Any opportunity for judicial oversight of the R-60 process may effectively kill the process. Court challenges to a proposal would cause unreasonable delays.
Two methods of initiating an R-60 ballot proposal are worthy of consideration. Just as for other ballot proposals, gathering an adequate number of signatures is possible. But two concerns arise. Validating the signatures of a very large number of voters may be cumbersome, expensive and subject to challenge. Secondly, this method allows the passions of the voters to be expressed in a manner that mirrors direct democracy. True opponents of direct democracy will object.