Do the People Need to Be Checked and Balanced?
Demanding More from Ourselves
Note: This is Part 3 of a 3-part series exploring the Power of the People in our system. (Start with Part 1.) These are excerpts, adapted for the series, from the new book Law is Not for Lawyers (It’s for Everyone): Empower Yourself with the Basics of Law and Civics.
The Founders of the United States weren’t sure we were up to the challenge of governing ourselves in a democracy. The reality is that the founders did not trust The People. In the Constitutional framework, the power of the people is never exercised directly, but is always moderated through various layers.
Even the president is still not directly elected by the people. Instead, the president is ultimately chosen through the Electoral College. The Constitution provides that state legislatures can allocate their Electoral votes and choose the Electors (yes the Electors are real people) however they want. Originally, the state legislatures would essentially vote for the president on their own. They simply chose Electors without consulting the population. Now, they generally allocate their Electoral votes to whoever wins the popular vote in the state.
While this method has evolved to reflect the will of the voters of each state, it still does not reflect the will of the American people as a whole. Four presidents have been elected without winning the most votes nationwide.
Not only that, but it’s a very real possibility that even the state popular votes may not actually decide the election! You see, Electors make a pledge to vote for a certain presidential candidate, and the states grant them electoral power based on that pledge. However, from the very beginning of the Electoral College through the present day there have been numerous so-called faithless Electors who voted a different way from how they pledged. Have you heard of President Pinckney? No, you haven’t, because instead of voting for Pinckney in 1796, a group of faithless Electors voted for John Adams instead.1Chernow, Ron. Alexander Hamilton. New York: Penguin, 2004. p. 514. This kind of outcome could still definitely occur today. What is even happening in our system?
There is not even a way for the American population to clearly declare their preferences on a particular issue. In many countries, voters can vote directly on constitutional amendments, laws, or other major questions. This process is generally called a referendum or proposition.2Boyd, Ovid. REFERENDA AROUND THE WORLD: History and Status of Direct Democracy These methods are a form of direct democracy, where voter preferences are directly expressed. This is distinguished from representative democracy, in which voters vote for representatives, who in turn vote on issues. No direct democracy exists at the national level, although 26 states, and many cities and counties have some form of ballot measure or proposition system.3Initiative and Referendum Institute, University of Southern California: http://www.iandrinstitute.org/states.cfm
“Democracy is the worst form of government except for all those other forms that have been tried from time to time.”
– Winston Churchill
But is direct democracy a good thing? Can the people be trusted to vote on a specific issue on which they may not have adequate knowledge? Or does it just interfere with the “professional” work of lawmaking. Lawmakers usually study legislation, including potential intended and unintended consequences, their staffs often produce reports on this as well. It is true that lawmakers screw it up sometimes as well, but they are better equipped to make public policy.
The Founders wanted various layers of protection against the masses. Even The People need to be checked and balanced. That said, if enough of us can come together to push for a change, that should be respected. Maybe we can implement more forms of direct democracy if the threshold is high enough, like the 75% we agreed on earlier. Hopefully we can all keep in mind that everything in the Constitution and the laws, and everything the government does affects 100% of us, whether directly or indirectly. Let’s be cautious with what some of the people impose on all the people. Maybe there can be a warning label on voting ballots that reminds us of this. We are truly all in this together.
If there’s not enough support for change, then it’s the Constitution which is truly in charge. We must respect that. This is Rule of Law.