Category Archives: Popular Sovereignty

Our “Dying” Constitution

Our country’s founders created and ratified a Constitution to limit the powers of the new central government, institute structural defenses to individual liberty and solidify the popular sovereignty of the people.  Because their experiment in representative government was new, they were rightfully concerned that, without proper protections in place, the new republic might be hijacked by a despotic force.  But dictatorial despotism was not their only concern.  They recognized that the republic could slip into a form of majoritarianism in the event the Constitution didn’t provide express and structural defenses of individual liberty.  As James Madison stated in Federalist No. 51, “It is of great importance in a republic, not only to guard the society against the oppression of its rulers; but to guard one part of the society against the injustice of the other part.  Different interests necessarily exist in different classes of citizens.  If a majority be united by a common interest, the rights of the minority will be insecure.”  John Adams was more direct, “…despotism, or unlimited sovereignty, or absolute power is the same in a majority of a popular assembly, an aristocratical counsel, an oligarchical junto and a single emperor.  Equally arbitrary cruel bloody and in every respect diabolical.”

For the first 150 years of our country’s existence, Americans generally honored and respected the Constitution, maintaining every expectation that it would perform its primary function of limiting the Federal government’s powers and guarding against tyranny from any source.  In the 1930’s, progressive politicians decided that additional, extra-constitutional powers were “necessary”,  and they argued for a broader interpretation of the Constitution under the theory of the Constitution as a “living” document which must be “interpreted” to change with the needs of society.  Of course, what was “needed” was more power for the Federal government, less power for the states and less liberty for the people.

These progressive politicians disregarded the two legal methods of changing the Constitution provided in Article V because those methods were too “difficult” and time consuming.  Instrumental to those methods is the popular sovereignty of the American people; not so with the “living” constitution.  Unfortunately, The Great Depression rendered much of the public open to the idea of a Federal government with expanded powers.  This openness ultimately resulted in a misperceived “mandate” in FDR and the progressive Congressmen who supported him.  Ultimately, the Supreme Court capitulated and adopted an interpretive as opposed to literal reading of the Constitution in order to enable the expanded authority the progressive politicians and the public seemed to demand.  Thus, the “living” constitution was born.

Likely lost upon the American people who then leant their political support to such a scheme were the long term ramifications of this “living” constitution.   Where the “real” Constitution’s literal meaning instituted liberty and expressly limited government authority, the “living” constitution, by design, weakened those edifices.  The very purpose of the “living” constitution was to eliminate the real Constitution’s barriers to government power.  It is doubtful that they understood the implications of their desire for a more powerful government without employing Article V to specify and limit those additional powers.  Those who supported the scheme were in effect saying, “Supreme Court, we want you to read the Constitution so as to give our elected representatives more power over us.  We’re willing to trade the Constitution’s iron clad protections of our sovereignty and our liberty for the perceived security of knowing that our elected representatives can do more to solve our problems.  We trust them and need them to have the authority to act and we trust you to figure out how to reinterpret the Constitution to achieve these additional powers.  There’s no need for a formal amendment specifying what these new powers are to be.”  This interpretive approach to determining constitutional issues contemplated by the “living” constitution opened the door to representative majoritarianism in America.

Though the people have maintained the ultimate control over the government by virtue of elections, the government’s powers would now be determined by perceived social need or necessity.  The Court would turn rhetorical summersaults and stand logic on its head in order to justify new “interpretations” which would empower the government.  Those powers are limited now only by the Court’s imagination and the Justice’s perceptions of “necessity” and “justice”.  What distinguishes representative or republican majoritarianism from a constitutional republic is the constitutional restraints on what the majority is able to do.  As the restraints weaken and fall, representative majoritarianism is slowly institutionalized and the concern of a tyranny of the majority over the minority becomes very real.

An additional result of the Court’s metamorphosis in the 1930’s was the marginalization of the popular sovereignty of the American people.  Where it had once been primary, it would from then on be secondary, subject to the Supreme Court’s interpretive divergences from the Constitution, and exercisable only through Article 5.  From that time on, the will of the people expressed in the original, real Constitution could be discarded whenever the Supreme Court became convinced the new “living” constitution called for additional governmental power or new individual rights with which the states could not interfere.  The people thereby lost the primary control over effectively amending the supreme law in defining the power of government, the Constitution.

The new “interpretations” which resulted from the Court’s capitulation in the 1930’s have expanded Federal power consistently.  In more recent years, an accommodative attitude with respect to social matters and individual rights has resulted in the recognition of such rights as “constitutional” and not subject to state interference.  For several decades, we’ve now lived with the ramifications – an ever widening chasm between the “living” constitution, enabling the growing power of the Federal government; and the real Constitution, which limited its powers, honored the authority of the states, and held as its ultimate object, the sovereignty of the American people.

The Supreme Court’s recent rulings are cause for renewed attention.  In a two part effort to save the Affordable Care Act, the Court first ruled in National Federation of Independent Business v. Sebelius that the fee which will be imposed on those who fail or refuse to comply with the individual mandate to purchase health insurance is a tax and not a penalty.  This, despite the fact that Congress and the President both repeatedly assured the sovereign American people that the fee is a penalty and not a tax.

In part two, the Court ruled in King v. Burwell that, despite the express language of the statute authorizing federal tax credit subsidies only for health insurance which is purchased through an “exchange established by the State”, the subsidies are ok for health insurance purchased through an exchange created by the Federal government as well.  Again, we know that Congress intended to leave the Federal government out of the business of creating such exchanges because ACA “architect” Jonathan Gruber told us so.  “If you’re a state and you don’t set up an exchange, that means your citizens don’t get their tax credits. … I hope that’s a blatant enough political reality that states will get their act together and realize there are billions of dollars at stake here in setting up these exchanges, and that they’ll do it.”

In these rulings, the Court did more than expand governmental power pursuant to an “interpretive” reading of the so called “living” constitution.  It breached the rule of law by discarding the express language of the statute in favor of an “interpretation” which would permit the statute to survive.  The ACA could not have survived without congressional intervention if the mandate fee had been deemed not to be a tax or if the subsidies were restricted to insurance purchased through a state exchange.  In order to save Congress from itself, the Court took on a legislative role in violation of the separation of powers enshrined in the Constitution, and rewrote the statute twice by false “interpretation”, thereby making it operational where it otherwise was not.

Finally, in Obergefell v. Hodges, the Court imposed upon the states the legal recognition of same sex marriage through a new “interpretation” of the 14th Amendment.  The 14th Amendment’s “equal protection” and “due process” clauses do not restrict the states from excluding same sex marriage.  We know this because it is beyond argument that the 14th Amendment would not have been ratified if the people understood at the time that it would be interpreted to create a right to same sex marriage.  Indeed, it is beyond serious question that at no time since the original ratification of the Constitution in 1788 up to this very day would a proposed amendment establishing a right to same sex marriage have been ratified by the sovereign people of the United States by the three-fourths supermajority required by Article 5.

The 14th Amendment was ratified in 1868.  Unquestionably, the Supreme Court of 1870 would not have ruled that states are constitutionally bound by the 14th Amendment to legally recognize same sex marriage.  Nor would the Supreme Courts of 1900, 1940, 1970 or 1995.  But at some point, the 14th Amendment magically began to require that states legally recognize same sex marriage.  Only the Supreme Court can tell us when.  Like a mythical oracle, only the Supreme Court can recognize the change in meaning.  Only the Supreme Court can know when and why a reinterpretation of the Constitution is warranted to give a different meaning than it has ever had in the past.  This is how a  “living” constitution works.  What was once a document establishing the limits of the Federal government as imposed by a sovereign people, now enables the Federal government to determine the scope of its powers and the limits of our individual liberty by virtue of the Supreme Court’s interpretations.

What has for years been obvious to some is now becoming obvious to all; the original Constitution – the one which limits governmental powers, establishes the three separate branches of government, institutionalizes federalism and preserves all non-enumerated powers to the states or to the people – is being diminished.  The original Constitution—the special one, the one that made America unique, the one that birthed American exceptionalism – is becoming a hollow shell.  The original Constitution is “dying”, supplanted by the “living” constitution – the one that says whatever at least five members of the Supreme Court says it says.

As a result, the public at large has become more accustomed to living within the paradigm of the “living” constitution.  By and large, people are happy when the Supreme Court renders a decision with which they agree.  They are angry when a decision goes against their interests.  As the Supreme Court becomes more disassociated from the real Constitution and more motivated by their own political sensibilities in rendering decisions under the “living” constitutional paradigm, it is understandable that the public should see it for what it has become, a non-elected, super-legislature with life tenure and no remaining serious constitutional limitations on its power.  As the Supreme Court’s use of judicial review becomes more recognized as a tool for placing a phony veil of constitutional legitimacy on the expansion of Federal power over the people and the states, the public may understandably come to the conclusion that judicial review no longer serves any purpose, legitimate or artificial, and may demand that we do away with judicial review altogether.  Why should we permit an unelected super legislature of nine appointed lawyers to have the last word over our governance once it is fully understood that they aren’t bound by any real abidance to the Constitution?  As Justice Scalia observed in his dissenting opinion in Obergefell, “(w)ith each decision of ours that takes from the People a question properly left to them—with each decision that is unabashedly based not on law, but on the ‘reasoned judgment’ of a bare majority of this Court—we move one step closer to being reminded of our impotence.”

When organizations and individuals express happiness or satisfaction over the results of Supreme Court cases such as the ACA cases and the same sex marriage case, they tacitly ratify the loss of popular sovereignty and acknowledge their willingness to be governed subject to the new paradigm. They fail to recognize that the end result will be the loss of our Constitutionally protected liberty.  Those who celebrate a Supreme Court decision founded on the fraudulent notion of the “living” constitution should rethink the proposition they are embracing.  The “living” constitution is not a constitution at all, but rather, a license enabling the nine appointed justices to pass final judgement on public matters with no basis or support other than the temporary, tacit permission of the American people.  If that permission is withdrawn what will remain will be a real Constitution of relatively little contemporary application or effect and a “living” constitution revealed to be the fraud it has always been.  The only viable alternative may be the completion of our move toward representative majoratarianism begun when the “living” constitution became the standard of judicial review. If so, our popular sovereignty will exist not in the Constitution but in the will of the majority as it speaks and acts through its representatives. What were once unalienable rights, will become at best privileges and at worst, distant memories.

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The Uninformed Should Not Be Encouraged To Vote

The title of this blog gives me pause.  Does the notion that uninformed voters should not vote really need to be explained?  Do we live in a society where such an obviously correct assertion is not generally accepted by society at large?  Apparently we do.

I recently heard a radio interview of a former state senator in my home state.  He was upset with the reported fact that my home state is at or near the bottom of the list when it comes to the percentage of citizens who vote.  His goal is to help change that status.  When the interviewer suggested that the former senator must surely agree that we want citizens to have a basic understanding of the issues before voting, the former senator disagreed.  Paraphrasing, he said that it doesn’t matter whether voters are informed.  What is important is that the state’s voting statistics improve.  The interviewer then conceded that there is a “civic responsibility to vote”.  I also read a recent opinion column in my local paper wherein the columnist asserted that “the greater the participation in the voting process, the better and stronger our country is in the long run.”

These few local examples exemplify a national attitude that has developed relatively quickly over the past several years.  The notion is that voting is an inherent good.  The effort has been to turn out the vote, no matter how uninformed.  Such campaigns seldom make any reference at all to the necessity of becoming informed prior to voting.  “Just vote” seems to be the mantra.  I’ve heard at least one nationally known, highly informed commentator repeat the mantra that voting is good, without any reference to whether the voter knows anything at all about the candidates or the issues.

Though I’m not sure what has driven this perspective, I am sure that it makes no sense.  At best, the mass of uninformed votes it induces simply cancel each out and leave us with a result which reflects the votes of the more informed and interested voters.  In any other scenario, what results is damaging to any democratic system of governance.  In essence, the results of our elections are being influenced by voters whose criteria for making a selection may be little more insightful than flipping a coin.

There are many human activities which we recognize as inherently good.  Exercising, eating healthfully, getting plenty of sleep, limiting stress and developing a positive, happy outlook are all deemed by society to be inherently good activities.  Unlike such activities, voting does not necessarily result in a good or helpful outcome.  The decision that is made in the voting booth can ultimately be good or bad for society.  Judgment based on careful study and consideration is necessary.  A person who votes without exercising judgment based on careful consideration makes no positive contribution to society.  In fact, by diluting the votes of those who have undertaken their civic responsibilities in a serious way, such a person undercuts the process and provides a disservice to society at large.

Voting is simply one step in the complex process we employ to govern ourselves. In no other human or societal activity do we urge incompetent people to perform a function simply for the sake of performing it.  Likewise, in no other human or societal activity do we seek the input of unknowledgeable people in making important decisions.  For example, families do not typically seek the input of every member in deciding whether to make a major purchase or whether the primary income earner should accept a new job.  Businesses do not typically seek the input of all stakeholders in deciding whether to change accounting systems or marketing plans.  Charitable institutions do not typically take a vote of donors to determine how best to utilize existing funds to achieve their charitable goals.  Surgeons do not seek the input of everyone else in the operating room when making a crucial decision.  The reason is obvious.  Families, businesses, charitable institutions and surgeons want to make the correct decisions when it comes to such important matters.  Accordingly, they leave those decisions to the people with the most knowledge.

Of course, everyone meeting basic legal criteria have a right to vote.  But that is no explanation for why society should encourage the uninformed to exercise that right.  Citizens also have the right to free speech and the right to own firearms.  Society doesn’t go out of its way to encourage citizens to exercise their right to free speech or to acquire and keep firearms.  Criminals have the right not to incriminate themselves.  Though they are informed of that right, society does not encourage them to exercise it.  Society is far better off when guilty suspects waive that right and confess to crimes they have committed.  The fact that voting may be deemed a right is no excuse for urging citizens to exercise that right.

In the radio interview of the former state senator, he posited that even if many voters are uninformed, the right decision will still be made by the electorate.  He offered no explanation for such a ridiculous assertion, presumably because there is none.  Uninformed voters will make their decisions in the voting booth based on something.  It might be which name they like better.  It might be who a friend or family member recommended.  It might be who looked the best in television advertisements.  Uninformed voters, by definition, will not make their decisions in the voting booth upon their own judgment exercised only after having studied and considered the issues and the candidates.  At best, the uninformed voters will cancel each other out.  In other words, the best that we can hope for is that their efforts will result in an outcome that mirrors the outcome which would have occurred if they had not voted at all.  Any other result damages the democratic process because the decisions we make are less likely to be based upon relevant information and good judgment.

Society should leave uninformed and disinterested citizens alone.  Anyone who is so disinterested in our self governance and the processes required to maintain it so as not to bother to vote does us all a favor by staying home on election day.  The uniformed, disinterested citizen is almost universally inclined not to vote.  That instinct is correct.  The rest of us should not try to persuade him otherwise.

 

 

 

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President Obama’s Audacious Disrespect For The Popular Sovereignty Of The American People

In a recent interview with Al Sharpton, President Obama commented on Democrat candidates who are distancing themselves from him and his policies.  “(T)hese are all folks who vote with me; they have supported my agenda in Congress…these are folks who are strong allies and supporters of me”, he said.  In this age of political dissuasion and denial, such candor might seem surprising and is certainly welcomed.  In our constitutional system of self governance and popular sovereignty it is crucial that the people understand what candidates running for office actually stand for.  Any candidate who seeks to hide from his record or obfuscate her goals and objectives as an officeholder should be exposed as thoroughly as possible so that the people can make an informed decision at the ballot box.

However, what President Obama said next revealed that his candor was a mistake; an unguarded moment when he accidently gave the listening audience a peek behind the curtain.  Referencing his communications with fellow democrats who are not acknowledging the truth about their affiliations with Obama or his policy stances, he said, “I tell them — I said, you do what you need to do to win.”  With that, he laid bare the tyrannical mindset of the ruling class.  Their objective is not the efficient and effective exercise of popular sovereignty.  Nor is it to inform and persuade the people to their particular policy stances or governing philosophy.  Their objective is simply to win – even at the cost of undermining the popular sovereignty our system of self government was founded upon.  Fooling the sovereign people is just part of the process.  If the people can’t be convinced of the propriety of a candidate’s actual policy stances, then the people must be mislead so they’ll vote for him anyway.

More and more it is the case that the ruling class views the people as an impediment to the implementation of their schemes rather than the real sovereign authority in whose interests they serve.  To them, American politics is not about the process of constitutionally determining the will of the people with respect to their government.  It is about playing a high stakes game for the opportunity to impose their will on civil society.  The game’s only rule is to win.

There was a time in the not too distant past when a national political figure would have been ruined politically for boldly admitting that it is ok to dupe the electorate in order to win an election.  No more.  Our cynical body politic has come to expect disrespect from our leaders.  Integrity to our founding principals is a scarcely seen characteristic in modern day American political leaders.  So it is that President Obama’s acknowledgment draws criticism, but not consequences.  His revelation has engendered excited enthusiasm from the Republican opposition at the prospect of using it to their political advantage. But we hear nary a whisper of condemnation for the unspoken message of his comment; that the American citizenry are merely obstacles to be circumnavigated, manipulated or avoided by the ruling class.

Until we the people demand respect from our elected officials for our fundamental constitutional role – that of the sovereign – we’ll only get more of the same.  We can effectively demand that respect only by rewarding honesty and candor and by punishing any candidate who lies and deceives us in hopes of fooling us for our vote.  We must demand that candidates frankly and honestly articulate their policy stances and that they respectfully work to persuade us to the propriety of their governing philosophy.  Those seeking public office must be made to understand that dissuading the voters will only ensure electoral failure.  They must be made to know that their only chance of electoral victory is to respect their constituency and convince us with clear and cogent reasoning why we should vote for them and by extension, the policy positions and governing philosophy which they advocate.

 

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