It's interesting that you had a difficult time with the idea of mandatory organ donation. I thought about it very little but the answer seemed quickly obvious. If you will indulge me: Natural rights exist or they don't. If natural rights of the individual don't exist then no one is wrong if he violates the claimed rights of another….The problem is: If natural rights of the individual don't exist then neither do natural rights of the society. Society doesn't have the right to take my kidneys. It only has the power.
I will not give my loyalty to a party that sees me only as a resource from which to harvest my labor and my parts. I will immolate myself before I surrender my organs.
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Both advocated for a single legislative body. For Paine this was in the context of the Pennsylvania Constitution, which actually prescribed one of the very few unicameral legislatures ever seen in the U.S. for about a decade. Both philosophers believed that a unicameral system would be more democratic and less prone to corruption and aristocratic influences. In Bentham’s "Plan of Parliamentary Reform," he criticized the complexity and inefficiency of bicameral systems, advocating for a simpler and more direct form of representation.
Both supported mechanisms for holding public officials accountable, including the recall of officials.
Both were staunch critics of monarchy and hereditary power generally, believing that such ideas were outdated and unjust and made for governments that perpetuate inequality and oppression.
Both complained bitterly about the idea that some constitution-writing generation has the right to bind future generations with its laws. Each believed that each generation should be able to decide what it wants–including what laws it wants, for itself. Society’s needs and knowledge evolve, and both men believed that laws should be able to as well. In his “Plan of Parliamentary Reform,” Bentham wrote that “The Constitution…shall never impede the amendment of its own errors.” And Paine wrote in “Rights of Man” that “Every age and generation must be as free to act for itself in all cases as the ages and generations which preceded it.”
Both (in the case of Bentham, eventually) came to support the cause of the French Revolution. For Paine, it was a fight against tyranny and a movement towards establishing a government based on natural rights and democratic principles. Bentham, who was extremely partial to the writing of detailed and explicit legal codes, saw it as creating a wonderful opportunity to implement rational and utilitarian principles in governance.
Constitution Writing and Democracy
Paine supported the idea of written constitutions as a means to safeguard natural rights and ensure a just government. He believed constitutions should reflect the will of the people and be subject to amendment as society evolves, advocating for the sovereignty of the people and the importance of representation. Bentham believed that democratic systems, where officials are elected by the people, ensure greater accountability. Elected representatives are more likely to act in the interests of their constituents to secure re-election. He argued in his "Plan of Parliamentary Reform," that representatives in a democracy would be more attuned to the needs and desires of the majority, as their political survival depends on popular support.
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But, as said above, Paine was a strong advocate for natural rights, which he believed were inherent and inalienable. On his view, these rights were derived from nature and reason, and they included life, liberty, and property. In fact, in Rights of Man he argued that governments are established precisely to protect those rights and that any government that fails to do so is illegitimate. On the other hand, among the most famous remarks Bentham ever made was his calling the idea of natural rights “nonsense upon stilts.” He was confident that observance of the principle of utility is all that is needed to ensure the excellence of any government. So, while both men called for roughly the same sorts of public policies, they couldn’t have been farther apart with respect to their conception of what grounds democratic principles. Natural rights for Paine, group well-being for Bentham. Can this “identity in difference” be explained, and if not…who was right?
Straightforward Benthamic hedonism isn’t particularly popular these days, largely because piling up pleasures for a bunch of people doesn’t seem to most commentators to make up for the pain that might be involved in doing it. So, for example, most of us don’t think it’s OK to steal a bunch of organs from some poor schmuck sitting in a hospital waiting room to pick up his wife after her colonoscopy, even if those organs would be used to save five (possibly “more important” or “useful”) people’s lives.
The thing to note about our intuitions here is that they are about morality: what seems right or wrong to us. But we can talk about how governments ought to be set up, without taking the “ought” there as an ethical term. We can take all the talk of “should,” “ought,” “right,” and “good” to be about another sort of value altogether, the prudential kind. Prudential values aren’t about what is good or right or ought to be done; they are about wellbeing–what is good for some person or group. So some act might be good for me or my family and still be horribly wrong to do. Say, I need a kidney, it might be good for me for one to be illegally taken from the guy in the waiting room, but that wouldn’t make it ethically appropriate.
One of the interesting differences between moral and prudential values is that the latter do seem capable of being summed in a way that the former can’t be. If some action would increase the wellbeing of a bunch of people in a group and lower the total wellbeing in that group by a smaller amount, it seems correct to say that total prudential value has increased. At least it has increased up to that date, for it may be that future wellbeing will be decreased if actions of that type are regularly undertaken. So, while (moral) goodness doesn’t seem summable in that way, prudential values do.
My suggestion for my readers is to now take all the recommendations of Paine and Bentham and think of them as being exclusively within the province of prudential values. Do you agree with me that the differences no longer seem so profound?
On the other hand, if moral claims are intended, reconciliation seems to me much more difficult. For in the area of ethics, the two thinkers begin with very different axioms.
I hope this helps. Either way, I may pick the matter up in a future blog on moral (and other) axioms.
A few relevant quotations
Form a constitution with such distinctions of rights, as shall expel the poor, or cause them to draw off into other states, and the rich will soon supply their places by becoming poor themselves, for where there are none to labour, and but few to consume, land and property is not riches…..Men who either do not, or by some fatality cannot penetrate deep enough into consequences, may please themselves with an idea of a distinction of rights in point of fortune, but it is the worst policy they can pursue. They will decay under it…..[T]heir assumed distinction of rights cease to exist, from the want of objects to exercise it over.
Rights are permanent things, fortune is not so; therefore the uncertainty and inequality of the latter cannot become a rule to the certainty and equality of the former.
The toleration act in England, which granted liberty of conscience to every man, in religion, was looked upon as the perfection of religious liberty. In America we consider the assumption of such power as a species of tyrannic arrogance, and do not grant liberty of conscience as a favor but confirm it as a right. And in so doing we have in point of justice exceeded every part of the known world.
There are some points so clear and definitive in themselves that they suffer by any attempt to prove them….
[These are all from Paine’s, “A Serious Address To The People Of Pennsylvania On The Present Situation Of Their Affairs”]
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The principal defect in the constitution of 1776, was that it was subject in practice to too much precipitancy, but the ground work of that constitution was good. The present constitution appears to me to be clogged with inconsistencies of a hazardous tendency, as a supposed remedy against a precipitancy that might not happen. Investing any individual, by whatever name or official title he may be called, with a negative over the formation of the laws, is copied from the English government, without ever perceiving the inconsistency and absurdity of it, when applied to the representative system, or understanding the origin of it in England.
It is from [an] assumed right, derived from conquest, and not from any constitutional right by compact, that kings of England hold a negative over the formation of the laws; and they hold this for the purpose of preventing any being enacted that might abridge, invade, or in any way affect or diminish what they claim to be their hereditary or family rights and prerogatives, derived originally from the conquest of the country. (2) This is the origin of the king of England’s negative. It is a badge of disgrace which his parliaments are obliged to wear, and to which they are abject enough to submit. But what has this case to do with a legislature chosen by freemen on their own authority, in right of themselves? Or in what manner does a person stiled governor or chief magistrate, resemble a conqueror subjugating a country, as William of Normandy subjugated England, and saying to it you shall have no laws but what I please? The negativing power in a country like America, is of that kind, that a wise man would not choose to be embarrassed with it, and a man fond of using it will be overthrown by it.
This negativing power in the hands of an individual ought to be constitutionally abolished. It is a dangerous power. There is no prescribing rules for the use of it. It is discretionary and arbitrary; and the will and temper of the person at any time possessing it, is its only rule.
The complaint respecting the senate is the length of its duration, being four years. The sage Franklin has said, “Where annual election ends tyranny begins:” and no man was a better judge of human nature than Franklin, nor has any man in our time exceeded him in the principles of honor and honesty.
When a man ceases to be accountable to those who elected him, and with whose public affairs he is entrusted, he ceases to be their representative, and is put in a condition of being their despot. He becomes the representative of nobody but himself. “I am elected, says he, for four years; you cannot turn me out, neither am I responsible to you in the mean time. All that you have to do with me is to pay me.” — The conduct of the Pennsylvania Senate in 1800, respecting the choice of electors for the presidency of the United States, shews the impropriety and danger of such an establishment.
The senate is an imitation of what is called the house of lords in England, and which Chesterfield, who was a member of it, and therefore knew it, calls it “the hospital of incurables.” The senate in Pennsylvania is not quite an hospital of incurables, but it took almost four years to bring it to a state of convalescence.
The Pennsylvania convention of 1776 copied nothing from the English government. It formed a constitution on the basis of honesty. The defect, as I have already said of that constitution, was the precipitancy to which the legislatures might be subject in enacting laws. All the members of that legislature established by the constitution, sat in one chamber and debated in one body, and thus subjected them to precipitancy. But this precipitancy was provided against, but not effectually. The constitution ordered that the laws, before being finally enacted, should be published for public consideration. But as no given time was fixed for that consideration, nor any means for collecting its effect, nor were there then any public news papers in the state but what were printed in Philadelphia, the provision did not reach the intention of it, and thus a good and wise intention sank into mere form, which is generally the case when the means are not adequate to the end.
The constitution of ’76 was conformable to the Declaration of Independence and the declaration of rights, which the present constitution is not; for it makes artificial distinctions among men in the right of suffrage, which the principles of equity know nothing of; neither is it consistent with sound policy. We every day see the rich becoming poor and those who were poor before becoming rich. Riches, therefore, having no stability, cannot and ought not to be made a criterion of rights. Man is man in every condition of life, and the varieties of fortune and misfortune are open to all.
Had the number of representatives in the legislature, established by that constitution, been encreased, and instead of their sitting together in one chamber and debating and voting all at one time, to have divided by lot into two equal parts and sat in separate chambers, the advantage would have been, that one half by not being entangled in the first debate, nor having committed itself by voting, would be silently possessed of the arguments, for and against, of the former part and be in a calm condition to review the whole. And instead of one chamber, or one house, or by whatever name they may be called, negativing the vote of the other, which is now the case, and which admits of inconsistencies even to absurdities, to have added the votes of both chambers together, and the majority of the whole to be the final decision. There would be reason in this, but there is none in the present mode.
The fundamental principle in representative government, is, that the majority governs; and as it will be always happening that a man may be in the minority on one question, and in the majority on another, he obeys by the same principle that he rules. But when there are two houses of unequal numbers, and the smaller number negativing the greater, it is the minority that governs which is contrary to the principle
While Royalty is harmful from its very nature, hereditary Royalty is, in addition, absurd and disgusting. Just think of it! Yonder is a man who claims that he has a hereditary right to rule me! Where did he get it? From his ancestors, he says, and from mine. But how could they give him a right they did not possess? No man has power over posterity. I can no more be the slave of those who went before me than I can of those who now exist. If we
returned to life, we could not rob ourselves of the rights acquired in a second existence; still less could we rob posterity of their rights.
A hereditary crown! A throne to be handed over to a successor! Why, it is to treat our posterity as a herd of cattle who are entirely destitute of either rights or will. No more infamous and indecent illusion ever disgraced humanity than that the people is a herd which may be transmitted from one king to another.
[These are all from Paine’s “TO THE CITIZENS OF PENNSYLVANIA ON THE PROPOSAL FOR CALLING A CONVENTION–1805]
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The supreme operative body should act without division.
2. It should not act in so many as two bodies: even though
the members were located by the best compounded set of locators
-i.e. Electors,-much less in more than two.
2. Much less should it be composed of two or more independently-
operating bodies-each taking cognizance of the same
measure after the other.
3. Still less should enter into the composition of it a body of
men located by a Chief Functionary, or set of Chief Functionaries,
established for the purpose, sitting for a long term of years
or for life.
The will of the people is determined by the interest of the
people: so far as that interest is understood by them.
It not being understood, is not to be presumed: for if not by
them by whom else is it understood?
The greater the number is of its seats of authority, through
which a useful measure must pass before execution and effect can
be given to it, the greater the number of stages at which sinister
interest may apply itself to encounter and obstruct it.
[7] Q. What can have been the cause or causes why a second
chamber where the members are located on the same principle
has been added to the first.
Answers-I. The supposed probability or fear of precipitation,
and the hope of obviating it. 2. The principle of imitationauthority-
begotten prejudice.
Q. The evil of precipitation (its degree of probability taken
into account) does it seem to be of such a magnitude as to warrant
the application of such an institution in the character of a
preventive remedy.
A. Hardly. For 1. the evil of additional delay is an evil that
applies itself to every measure-2. So does the evil of complication-
in every individual case the existence of every one of
them is certain.
As to the good, the only case that affords an inlet to it, is that
in which a pernicious measure, which would have passed had
there been but one Chamber for it to pass through is prevented
from passing by being thrown out by the Second Chamber. To
be on sufficient grounds assured that in this case preponderant
good has been the result of the operation-if this instrument has
had preponderant good for its results, these two distinguishable
points must be established-viz 1. that the law or measure if
carried into effect would have been pernicious-2. that had there
been no second chamber it would not have been thrown· out in
the first. For, as to this latter point, a state of things not incapable of
being realized is that, in being assured that the measure
will not pass the second· Chamber, many of those who would
otherwise have opposed it in the First Chamber, are by one consideration
or other kept back from meddling with it.
In proportion as the result of the division or rather multiplication
of barriers that must be passed through ere a measure
reaches the end of its career, is favourable to factitious delay, factitious
delay is resorted to in preference to argument. But it is in
the nature of argument, on the supposition that the end pursued is
the universal interest and not particular interest : that the farther
from being preponderantly beneficial a measure is-the more
likely it is to be put aside by argument; the more highly beneficial,
the less likely to ~ thus put aside: whereas factitious delay contributes
according to the length of it-c:ontributes in the same
proportion in the one as in the other, to put aside the best and the
worst.
If, in consequence of precipitation, a measure the effect of
which is upon the whole preponderantly evil receives the sanction
of law, the evil is not incapable of being removed by a subsequent
law: whereas whatever is the sum of the delays produced in all
measures without distinction by the dilatory system remains for
ever uncompensated.
True it is that where by reason of precipitation, a measure
productive of a balance on the side of evil receives the sanction
of law--so long as the law remains unrepealed, the evil continues
on the increase. But, by the supposition, being, as it is, indebted
for its existence to precipitation and nothing else-being such that
had it not been for the precipitation, it would not have passed but
would have been rejected-rejected before the evil had begun to
show itself--still more surely will the system be rid of it, and now
that the correctness of the general anticipation judgment has been
demonstrated by experience.
For the formation of a well-grounded and well matured
judgment in relation to this subject, take the body of experience
already obtained in the Congress of the Anglo-American U. S.
Take any year or number of years : take an account of the whole
number of laws passed & rejected within that time, and say
1. Total number of laws introduced into the Senate from the
House of Representatives so many-
2. Whereof passed, so many
3. Rejected, so many
Then take in hand the number of those rejected & say
4. Introduced & passed in a subsequent Session, so manyOf
these, unless some special & adequate reason to the contrary,
it ought to be assumed that they have upon the whole
been & continue to be of a beneficial natures.
Of those rejected, pernicious, upon the whole, upon a present
view, if any, so many-
6. Of those rejected, pernicious, as above, but which had it
not been for the existence of the Senate, would it is now
supposed have been rejected by the Chamber of Representatives,
so many-
7. Of those rejected, deemed now upon a maturer view of the
Subject, beneficial upon the whole, so many.
Such is the plan recommended to each individual for the formation
of his own particular opinion.
Supposing the balance, in this account of aptitude, of good &
evil in all other shapes to hang exactly even, the consideration of
expense will suffice to turn it, & the scale with the Second Chamber
in it will kick the beam.
[These are all from Bentham’s ANTI-SENATICA of 1830]
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.
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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.
****************
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. Philosopher Mark Norris Lance reminded me the other day of this particularly fitting (and moving) quotation:
