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Derailed, David Broder predicts, “the converging forces of technology and public opinion [will] coalesce in a political movement for a national initiative.”1 If Mr. Broder is correct, and I believe he is, then he has brought attention to a much-needed debate of this crucial issue. Broder renders great service in raising this issue, but reaches a surprising conclusion when he weights in on the side of the status quo. He concludes that the people cannot be trusted with their own self-governance. Mr. Broder asserts that initiatives bring “not a government of laws, but laws without government.”2 He is wrong. The Constitution divides our government into three branches: the legislative, executive and judicial. While citizen law-making adds an additional process to the legislative branch, it does not appreciably alter the present legislative functions in representative governments. Nor does it appreciably alter the executive or judicial branches of government. Contrary to Broder’s assertion, initiatives are not “…alien to the spirit of the Constitution….” And they offer no subversive threat to “…its [the Constitution’s] carefully crafted set of checks and balances.”3 The executive branch continues to execute and enforce the laws enacted by both legislatures and the people. Likewise, the judicial branch continues to adjudicate laws enacted by legislatures and the people, and in that process determines the constitutionality of such laws. Far from subverting our democracy, the people’s legislative role is the essence of our Constitution, as expressed in the initial words of the Preamble, “We, the People.” Alexander Meiklejohn, the great constitutional scholar, defines the real meaning of self-government: The citizens of this nation shall make and shall obey their own laws, shall be at once their own subjects and their own masters.4 The ballot initiative does not create an alternate form of government. America remains very much a nation and a government of laws. How odd that Mr. Broder finds the legislative role of the people alien to the Constitution. It was the People–not the State legislatures–who enacted the Constitution. PhiladelphiaTwo.org, a nonprofit organization I founded a decade ago, is sponsoring the Direct Democracy Initiative (DDI) that Broder garbled and discussed misleadingly.5 The DDI is a proposed federal law that will permit the people to enact laws in every local, state and federal government jurisdiction of the U.S. The DDI provides deliberative legislative procedures (well beyond any found in the states that currently have initiative laws) and establishes a ministerial agency (similar to ministerial agencies of elected legislative bodies) to help citizens, assembled with the aid of modern communications technology, to act as a Legislature of the People. The DDI is not designed to undo our present system of representative government, only to supplement it and improve democracy overall. Mr. Broder acknowledges problems with our elected representatives. However, he maintains “the remedy to ineffective representation is in our hands each election day.”6 If that were so, our problems with representative governments would have faded long ago rather than growing and forcing a frustrated citizenry to deal directly with them. “The notion that elections assure a responsive government is quaint,” write constitutional scholars Akhil Reed Amar and Alan Hirsch. “Elected officials can (and often do) remain in power despite frustrating the wishes of the people.”7 Mr. Broder and I are in agreement that power is dangerous. Power is a corrupting agent and becomes more corrosive over time. It’s not just a matter of money and bribes, but also the arrogance of power that most damages the polity. The people intuitively know the dangers of
power. If anything, the overwhelming numbers of people who support term limits show uncanny brilliance in recognizing a solution to the dangers of power not properly addressed in the system of checks and balances designed into the Constitution. Bear in mind that the Framers were the elites of their day, who sought to maintain their economic privileges, and therefore had little incentive to limit their terms in office. Our revolution from Britain was fought over home rule, not over who would rule at home. Limiting the amount of time a person can hold power is the only remedy to the corrosive influence that power has on all human beings. Term limits is a constructive reform of representative government. Term limits do not deny the polity the experience and knowledge of dedicated public servants. After public service, term-limited representatives take their valuable experience to other venues of society. For the record, I value my sixteen years of elective service, which included two terms in the United States Senate. I do not disparage those who serve: I know first-hand that they are, by and large, hard working and intelligent public servants. Unfortunately, they are all too human and thus subject to the temptations that power offers unendingly and in great profusion. To be sure, the initiative process is not immune from the same problems that plague the representative legislative process. But Mr. Broder exaggerates the flaws in citizen law making. He relates a conversation with Representative Mike Gardner of Arizona8 to show that special interests and money manipulate the initiative process. Rep. Gardner complains that George Soros of New York, and Peter B. Lewis of Cleveland joined John Sperling of Phoenix to finance the medical marijuana initiative in Arizona. Gardner fails to see that these gentlemen, like all Americans, are entitled to exercise their First Amendment right of free speech on any street corner in Arizona or elsewhere. They are entitled to urge people to vote on any initiative. However, the citizens of Arizona are the only ones who can enact an initiative into Arizona law. Arizonians can decide what information and which arguments to credit. The difference between initiative law making and representative law making is the degree of openness. Voters know the players in an initiative campaign. Not all the players are visible to the public during the legislative machinations in representative legislatures. It seems disingenuous to criticize the initiative process because some special interests are involved, when special interest politics is structurally built into representative governments. Contrary to Broder’s assertions, moneyed interests prefer to make financial contributions to legislators and executive branch officials to achieve their ends. Big money only resorts to initiatives when all else fails. They can buy their way onto the ballot, but, as the tobacco companies, trial lawyers and insurance interests have learned, they cannot buy the majority of the electorate. It’s easier to place an initiative measure on the ballot than it is to win it. Broder insists that wealth and special interests “subvert the initiative process.”9 In that case, who is responsible? Representative governments have the power necessary to reform the initiative process if they choose to do so. Unfortunately, elected officials are notoriously unwilling to reform their own process much less reform a process that empowers the people and in turn dilutes their power. The initiative practices that Mr. Broder rightly criticizes in his book are not at all the practices that could exist under the DDI. He notes, without drawing a conclusion, the recommendations of the California Commission on Campaign Financing,10 from which the DDI draws some of its reforms. Broder chose not to examine closely the DDI proposal. I can assure him that its procedures are designed to correct precisely the abuses he describes. Mr. Broder posits a choice between the “seductive simplicity”11 of the DDI and James Madison’s sophisticated Constitution. This is a false choice. Philadelphia-Two is attempting to advance Mr. Madison’s unfinished work, not negate it. The Constitution lacks procedures that would permit the
people to engage in the central act of self-governance – law making. This constitutional omission does not and cannot deny the people the right or the power (called First Principles) to establish legislative procedures to permit the people to legislate directly, which is what the DDI will accomplish. We call our organization Philadelphia Two because we seek to employ the same strategy the Framers used to ratify the Constitution – direct action by the people. Madison’s words, on August 31, 1787 at the Constitutional Convention in Philadelphia, belie his anti-democratic reputation. A delegate from Maryland complained that the adoption of the federal Constitution would effectively amend Maryland’s Constitution, in which no amending process existed. Madison responded: The difficulty in Maryland was no greater than in other States…The people were in fact, the fountain of all power, and by resorting to them, all difficulties were got over. They could alter constitutions as they pleased.”12 As Madison’s statement suggests, Mr. Broder’s assertion that “no voice was raised in support of direct democracy” is inaccurate.13 And Madison was not alone. At the Convention, James Wilson observed, “Representation is made necessary only because it is impossible for the people to act collectively.”14 Two centuries later, thanks to incredible technological advance, it is no longer impossible. Thus we do well to heed Wilson’s declaration that “all power is originally in the people and should be exercised by them in person, if that could be done with convenience, or even with little difficulty.”15 Wilson was a revered scholar and jurist, one of six men who signed both the Declaration of Independence and the Constitution. The Pennsylvania Constitution of 1790 was largely his work. George Washington appointed him to the original Supreme Court, and some historians regard him as the most learned legal scholar of his generation. Those credentials lend weight to his assertion that: In our governments, the supreme, absolute, and uncontrollable power remains in the people. As our constitutions are superior to our legislatures; so the people are superior to our constitutions…for the people possess, over our constitutions, control in act, as well as in right.16 Since advances in communications technology and the frustrations Americans have with representative government are coalescing, it would seem wise and prudent to guide that force for change into constructive paths to save representative democracy by supplementing it with direct democracy. James Wilson identified who had the right, the power and the responsibility to harness that force in our polity: “There is a remedy…for every distemper in government, if the people are not wanting to themselves.”17 The nascent political movement for a national initiative, shrewdly observed by David Broder, shows the people are not wanting.
David Broder, Democracy Derailed Harcourt, Inc., New York, 2000, p. 242. Ibid. p. 1 3 Ibid. p. 1 4 Alexander Meiklejohn, Political Freedom - The Constitutional Powers of the People, Harper, New York, 1960, p. 18. 5 Broder, op. cit., p. 239 6 Broder, op. cit., p. 243 7 Akhil Reed Amar and Alan Hirsch, For the People: What the Constitution Really Says About Your Rights, Free Press, New York, 1998, p. 3. 8 Broder, op. cit., p. 197. 9 Broder, op. cit., PP. 210-212
Broder, op. cit., pp 210-212, Democracy by Initiative: Shaping California’s Fourth Branch of Government, Center for Responsive Government, Los Angeles, 1992. 11 Broder, op. cit., p. 243. 12 Max Farrand, ed., The Records of the Federal Constitution of 1787, Yale Univ. Press, New Haven, 1966, Vol. II, p. 475. 13 Broder, op. cit., p. 15. 14 Max Farrand, ed., The Records of the Federal Constitution of 1787, Yale Univ. Press, New Haven, 1966, Vol. I, pp. 132-133. 15 James Wilson, The Works of James Wilson, ed. Robert Green McCloskey, The Belnap Press of Harvard University Press, Cambridge, 1967, Vol. I, p. 405. 16 Ibid. Vol. II, p. 770. 17 Ibid. Vol. II, p. 771
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