Naturally, many Americans are extremely concerned about the upcoming Presidential and Congressional elections. I include myself in this group. Even those who are seemingly safe under their beds have a lot to be worried about.
But from my prone, dusty perspective, the recent Supreme Court decisions regarding Presidential Immunity and the regulatory authority of Executive agencies are much more concerning because they will remain in effect whoever wins in this election. Other less recent decisions have also made the country either explicitly much less democratic--like Citizen's United, or much less satisfied with the laws that intimately affect them--like Dobbs.
Are matters entirely hopeless? Given the current provisions of our Constitution and the the current composition of the Court and the cultishness of one of our two major parties, it seems to me quite difficult not to answer this in the affirmative. One of these conditions could be altered by immediately "packing" the Court, but, presumably any such solution would be short-lived. It would surely be "unpacked" (and perhaps "repacked") by any Executive that doesn't like how it looks at any given time. And it seems to me that most of the Constitutional alterations that I have seen proposed over the last decade would do little given the current Supreme Court's willingness to interpret whatever turns up there in any fashion a certain Executive would prefer.
Would anything help, assuming for a moment there was actually time for it to be accomplished before the next election? Well, given the near impossibility of amending the U.S. Constitution, I'm afraid the answer is NO, no matter how much time was available. But I can think of some Constitutional provisions that, if, per impossibile, could somehow be shoved into our outdated "founding document," would have amazing curative powers.
The U.S. citizenry simply must have the power to recall Federal elective officials and reverse Supreme Court decisions. There should also be the possibility of Federal referendums. I'm not sure anything short of these admittedly huge alterations could provide much more than temporary symptomatic relief.
I wrote about these issues in some detail in my book (the amount of detail was partly a matter of what I now think was an error in my thinking about Reversal). Under our current dire circumstances, I will reproduce most of this material here. As I do this, I will point out (using braces { } and courier font) the mistakes I think I made in the book. This material is all from Chapter 9.
***********************
Recall,
Reversal, and Referendum
While 19 U.S. states have provisions for the recall of state officials, it is doubtful that the recall of any Federal official is allowed by the Constitution. Where the term of office is two years or less, this makes sense. Recall elections are time-consuming and expensive—especially so for the individuals subject to them....
But a sensible term of, say, four to six years must always
come with the possibility of recall by an unsatisfied electorate. And just as
governors are subject to recall petitions in many states, the President of the
U.S. must be removable, other than via impeachment. Trollope explains why:
We know that he can be
impeached by the Representatives and expelled from his office by the verdict of
the Senate; but this in fact does not amount to much. Responsibility of this
nature is doubtless very necessary, and prevents ebullitions of tyranny such as
those in which a sultan or an emperor may indulge; but it is not that
responsibility which especially recommends itself to the minds of free men. So
much of responsibility they take as a matter of course, as they do the air
which they breathe. It would be nothing to us to know that Lord Palmerston
could be impeached for robbing the treasury, or Lord Russell punished for
selling us to Austria…. We are anxious to know, not in what way they may be
impeached and beheaded for great crimes, but by what method they may be kept
constantly straight in small matters… [T]hey must be…of one mind with the
public. Let them be that; or if not they, then with as little delay as may be,
some others in their place. That with us is the meaning of ministerial
responsibility. To that responsibility all the cabinet is subject. But in the
government of the United States there is no such responsibility. The President
is placed at the head of the executive for four years, and while he there
remains no man can question him… There are no reins, constitutional or
unconstitutional, by which he can be restrained. He can absolutely repudiate a
majority of both Houses, and refuse the passage of any act of Congress even
though supported by those majorities. He can retain the services of ministers
distasteful to the whole country. He can place his own myrmidons at the head of
the army and navy, or can himself take the command immediately on his own
shoulders. All this he can do, and there is no one that can question him.
(1862, Vol. 2, Ch. 10)
And, Trollope adds with disdain,
“Seeing that Mr. Buchanan has escaped any punishment for maladministration, no
President need fear the anger of the people.” It is just such considerations as
Trollope puts so well here that ought to make obvious that in Presidential
systems too, a praiseworthy democracy requires the ability to recall all
elected officials with terms greater than two years. State recall provisions
vary, but I would recommend that a total of certified signatures equaling
perhaps 25% of the number of voters in the last election for the office in
question should be required to put the question on the ballot. A majority of
those voting for recall in the recall election would prevail, but only if some
minimum percentage of the electorate participates, perhaps 90% of the total
number of those who voted in the election that put the individual in office.
While such elections are indeed costly in many ways, democracy seems to me to
require that recall of these officials be allowable at least once in any
two-year period. Where any recall election is successful, a new election must
be held as soon as possible.
Judicial “Independence” and “Separation of Powers”
It is interesting to note
to what almost incredible extent the 18th Century
constitution-builders in America amplified Montesquieu’s “separation of powers”
trope into a principle that could be used to fuel the fear of any scent of
“despotism.”[1]
I will be discussing this matter in relation to bicameralism and the executive
veto shortly, but it is important at present to distinguish what any
parliamentary system shows to be largely a red herring, from the separate, and
I think defensible, tenet of judicial independence. This matter is important
here because the precept of independence must be made to harmonize with
democratic principles when considering the selection of judges and the prospect
of the revisability of their decisions by the people. Obviously,
judges—particularly those who will sit on the highest courts—must have a
specific sort of expertise. While this may be true of legislators as well,
judges are not correctly viewed as our representatives. Where legislators will
be chosen largely because of the concord between the voters’ views and what the
candidates say they intend to do, judges—while also having political
perspectives—clearly need to have legal expertise of a type that the electorate
is unlikely to be in a position to assess. {And, unlike elected officials, they should not be subject to recall.} But...if, as I think, high judges
must ...be selected by the executive, the legislature, or both, there
should be no imputation of “separation of powers” here. Such “independence” as
is required must be consistent with a judiciary that will remain responsive to
the general will. As Paine pointed out, the distinction of government into
Executive, Legislative and Judicial branches is more a distinction of words
than of things.
The sort of
responsiveness needed, even among the judiciary, seems impossible where judges
are elected for life terms. And as Croly 1914 warns, a too-powerful judiciary
makes us a nation not of laws but of lawyer-sovereignty—a country ruled almost
entirely by unaccountable attorneys.[2] Selection of judges by the
executive and confirmation by the legislature thus seem to me appropriate, but
only if appointments are for fixed (perhaps) 12-year, though renewable, terms.
Those judges wanting to remain on their benches at the end of their terms
should be required to apply for continued service to the executive, who could
either agree or dismiss them and make alternative choices, with such decisions
again being subject to confirmation by the legislature.[3]
Judicial independence is,
of course, more than a matter of selection and retention or dismissal of
judges. There must be reasonable confidence, not only among members of the
judiciary, but among contesting parties, that decisions will be made based on
the merits of cases, rather than political considerations or estimates
regarding whether some decision may be overturned by an executive or
legislative edict—or even by the results of a popular plebiscite. But such
judicial power must nevertheless not be itself used to entirely upend the will
of the people. As Amy Gutmann 1993 points out, judicial review of legislative
acts must go no farther than delegation of
popular control, and not move on to the complete alienation of it.
There has been no end of disputes about this issue, not only in academic works, and in legislatures and courthouses around the country, but on battlefields of the Civil War. There are today numerous subjects where one can find the demos on one side and the courts on another. Gun control is a good example. But thorny as they are, I believe these issues are resolvable if we correctly distinguish among types of cases. State legislatures and executives have long been jealous of what they take to be the rights of their constituents to live as they please, and they have been quite willing to set aside criminal and civil cases and focus their objections to judicial power on those specific matters wherein a Federal judge strikes down or preempts a state law or constitutional provision based on an interpretation of the (U.S.) Constitution or a Federal law.[4] The distinction the states have tried to make here is on the right track but insufficiently careful. Justice Marshall was right concerning some matters. There ought not to be “second-guessing” of the Federal government or its high court by a state {or other litigant.} There must be a final say regarding what is the foundation (or at least the current basic structural law) of any nation, and, since elections are not truth-tracking, voters should not be used to weigh evidence or re-try cases. Neither, however, should the Federal courts be substituting their judgments for what the people...want..... Thus, it seems to me that there are some court decisions {or better: some aspects of all decisions} that ought to be reversible by popular vote....
Disgusted about the regular striking down by various
courts of popular legislation involving such matters as child labor, workers’
compensation, and sanitary conditions in tenements, Theodore Roosevelt wrote,
It is the people, and
not the judges, who are entitled to say what their constitution means, for the
constitution is theirs, it belongs to them and not to their servants in
office—any other theory is incompatible with the foundational principles of our
government. If we, the people, choose to protect tenement-house dwellers in
their homes, or women in sweat-shops and factories, or wage-earners in
dangerous and unhealthy trades, or if we, the people, choose to define and
regulate the conditions of corporate activity, it is for us, and not for our
servants, to decide on the course we deem wise to follow. We cannot take any
other position without admitting that we are less fit for self-government than
the people of England, of Canada, of France, who possess and exercise this very
power. (Roosevelt 1912)
Roosevelt’s solution was not to move to a parliamentary system, but to require that a certain subclass of judicial decisions be subject to overturn by votes for reversal. He wanted the courts to be independent, but believed that such independence was more at risk from corporate and legal special interest groups than it was from “popular tyranny.” He gives some minimum deliberative requirements for these actions (e.g., the plebiscite would have to wait at least two years from the election of the legislature that enacted the law that was struck down), but he isn’t quite clear on how to interpret the results of these votes. He writes, “It is a matter of mere terminology whether this is called a method of ‘construing’ or ‘applying’ the constitution, or ‘a quicker method of getting the constitution amended’” (1912). This is glib, I think: it is important for any democratic populace to be able to know what is in its constitution(s). Roosevelt was wrong to suggest that this doesn’t matter, but the difficulty he points up with his remark is not easily handled. Both the constitutions and the statutes of all the various states involve specific methods for amendment, and they may not include language regarding “amendment via court decision” due to alleged unconstitutionality. Let me here provide my own tentative suggestion for the availability of reversal votes...
{I omit much of what I proposed here because I now think I was mistaken to try to categorize decisions as reversible or non-reversible based on the subject matter of the case at issue. What I now believe should be outside the citizenry's purview is any effect on the litigants who brought the case on which the disputed opinion arose. So, for example, if the new Presidential Immunity decision were to be reversed (as I believe it should be), such reversal should not subject former President Trump to prosecution for any prior "official acts," but would apply to every President (including him) subsequently. In other words, it's not the subject of the case, but the extent of its applicability that matters here. The principle of non-retroactivity must be maintained for the rule of law to remain intact. But I think the following proposed phraseology from my book is still relevant.}
A vote
to overturn a decision of any court...shall be
construed as a remand to the court issuing the decision as well as to the [relevant] legislature and executive. Such remand shall include instructions that either (i) the
court revise its view of the conflict within some specified period of time;
(ii) (a) the court advise the relevant legislature regarding how to draft [a law] producing substantially the same result... and (b) the legislature and executive enact
this statute within the same specified period; or (iii) the court provide
constitutional amendments that would, in the unanimous opinion of the judges,
handle [any alleged conflicts] and request that such amendments be placed on the [appropriate ballot(s] forthwith. Said instructions must be clear that if, by the date
specified within them, there is in effect neither a policy tantamount to that
desired by the voters nor an amendment to the constitution on the ballot that
would allow such policy in the opinion of that court, then each member of the
court who voted that the legislation be struck down as unconstitutional be
forthwith removed from his or her office for cause, unless either two-thirds of
the legislature in question indicate by open vote that they are opposed both to
enactment of any such legislation or constitutional amendment, or the executive
of that government agrees that it is his or her own responsibility that no bill
has been enacted and no constitutional amendment has been placed on the ballot.
It is quite likely that others
can come up with a less convoluted procedure, but the reasons for at least some
complexity should be clear.[5] The judges may have been
quite right that [a] new law conflicts with one or more constitutional
provisions; the legislature might pass new laws according to the judicial
recommendations and have them vetoed, or the executive might receive nothing to
sign that would address the matter. It therefore may be hard to find duplicity or, if it is found, it may be difficult to parse it. But what should not be
lost in these weeds is the necessity, as Roosevelt, Croly, Beard and a number
of other progressives understood, that some
method must always be available for the people to get what they want. In a
democratic country, citizens cannot be left, as the American people are today,
with so little recourse to change things, to have their way.
The Referendum
I have not spoken highly
of the initiative petition, instead taking an attitude that may make my views
seem undemocratic.[6]
It is my view, however, that considerable expertise and diligent study are
necessary to make good laws, and that those achievements are not generally
dispersed throughout a broad populace. Furthermore, the initiative is, as
already indicated, highly manipulable. But the referendum, which enables only
the striking down of statutes or executive orders the electorate does not like,
is markedly different, and, within strictly demarcated areas, must be
available. Surely, on such matters as whether a country should go to war, the
population at large must not be relegated to the position of ineffectual
boosters or protesters. It is generally fairly easy for people to know that
they don’t want this or that thing that has been thrust upon them. I believe
the mechanism for overturn of a law should be similar to that suggested above
for the recall of an elected official: there should be minimum numbers set for
both signatures and Yea votes. And the demand for substitute action by the
legislature or executive (though not instructions regarding precisely what it
must be, which would turn the event into an initiative) could be required. The
point is that spontaneous actions by legislators and executives must be subject
to repeal by referendum—as long as the issues do not involve matters that are
fundamental to democratic principles....
The voters
know better than anybody else can what they want and don’t want. Their
representatives are expected to be able to go some way in figuring out what to
do with that information. But neither the voters nor their representatives may
know whether such actions will be “good for the people.” That matter calls for
special sorts of scientific expertise, as it is a function of what various
courses of action can be expected to produce in terms of future attractive
options and successful choices. Neither the general populace nor their representatives ought to be
expected to be extremely proficient in that area of prognostication. It is not
always easy to disentangle the wants both from the ways and from the expected
and actual values of the results: there will be overlaps, gaps and
disagreements.[7]
But democracy should allow us to do the best we can. The availability of
referendums ensures that neither representatives nor experts appointed by
legislatures or executives can usurp the basic democratic right of the people
to indicate what they don’t want—and have what is unacceptable removed
where possible.
As noted above, it is
reasonable to be concerned that a “majority veto” by the electorate at large
could cost minorities gains that they might make in legislatures through
logrolling or strategic contributions, because, while intensities matter in
deliberative bodies, they do not play where we simply count heads.[8] But while a distilled
populism intentionally ensures equal {treatment, protection, and even more than than equality suggests with respect to} voice to minorities, it should not
be expected to provide strategies to achieve minority rule. The people at large
must be convinced {of all matters not involving democratic principles}. Of course, it is not always possible to know that our
representatives actually approve of some action or do so in light of their
general agreement with us on the issues: it may be that they are lying or have
been bought. Vigilance is crucial in the area of public corruption, and the
opportunity and means to cure illegitimate encroachments must be in the voters’
arsenal. In a word, the Progressives of Teddy Roosevelt’s time were right about
the gradual usurpation of the people’s power, even if their proposals need
tweaking. Confusions and conflations (as well as the intentional smokescreens
sent up by traditional liberals and conservatives) have managed to deprive U.S.
citizens of real democracy since the country’s creation. Yes, equal protections
must never be violated. Yes, the judiciary must be independent {with respect to certain matters}. No, we cannot
allow tyranny—even by the people. But it is possible to have real democracy for
all that.
Footnotes
[1] An excellent discussion of
this metamorphosis can be found in Gordon Wood 1969. It is fascinating to
discover that at the time of to the signing of the Articles of Confederation,
many of the individual states were extremely democratic, providing limited
terms for judges, broad impeachment processes, little in the way of executive
vetoes of legislative actions. As J. Allen Smith (1907, Ch. 2) notes, “In this
respect the early state constitutions anticipated much of the later development
of the English government itself.” Smith attributed this radicalism to the fact
that the checks and balances in the English system and in the colonies first
established in America “resulted from the composite character of the English
Constitution—its mixture of monarchy, aristocracy, and democracy.” When the
democratic spirit grew in the new world, there (at first) seemed little reason
to retain all the restraining mechanisms. And so the Articles, like the state
constitutions, entirely omitted them.
[2] “No reverence for the law
can guarantee political and social liberty to a body of democrats who confide
their collective destiny to written formulas as expounded by a ruling body of
lawyers. In practice each of these systems develops into a method of class
government. The men to whom the enormous power is delegated will use it, in
part at least, to perpetuate the system which is so beneficial to themselves.”
(Croly 1914, 279) See also the careful demonstration of the unavoidable defects
of judicial lawmaking and the consequent importance of legislative codification
in Austin (1869 Lect. XXXIX).
[3] Dismissals and
appointments should be considered separate actions, since the legislature ought
to be able to overturn a dismissal, perhaps by a 3/5 vote as if it were a veto.
Since I have criticized the use of super-majorities above, I should note here that
I have no problem with them when they are used exclusively to overturn contrary
(simple majority) actions by another legislative branch or the acts of an
executive elected by the same (or roughly the same) electorate.
[4] See, e.g., Ransom 1912,
Culp, 1929, and Beard, 1912. This issue
was a stalking horse for Teddy Roosevelt during his Progressive period.
[5] A simpler, if less radical
approach, according to which legislatures may overturn certain types of
judicial decisions has recently been suggested by Ganesh Sitaraman 2019.
[6] As already indicated, that
is the response that I’d expect to be taken by Nadia Urbinati, given what she
says in Democracy Disfigured. (Urbinati 2014) For a more favorable view
of strictly “yes/no” plebiscitary arrangements, see Jeffrey Edward Green 2011.
My own view, like Croly’s, falls somewhere in between.
[7] Urbinati 2014 is
instructive on the nuances of what she calls the “diarchy” of decisions and
opinions.
[8] See, e.g., Clark 1998.
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You will remember of course, that I said at the outset of this post that changes of the sort I seek are all but impossible. Simply hopeless. Matters are just too dire. I believe, nevertheless, that it is good to know what one ought to strive for. Mark Norris Lance reminded me the other day of this particularly fitting (and moving) quotation:
