America’s Loss of Legislative Sovereignty

The present state of things is the consequence of the past; and it is natural to inquire as to the sources of the good we enjoy or the evils we suffer.

—Samuel Johnson

The dream of freedom - for individual sovereignty - is not uniquely American; it began with civilization. The struggle to prevent enslavement or subjugation in any relationship is universal in all people.

All of our efforts at improving public policy are rooted in the structure of representative government. Unfortunately, we continue to believe that electing the right people to public office will bring about beneficial change. So we repeat over and over again something that has been proven repeatedly not to work. I do not diminish the vital need to elect people of integrity to public office. The point I make is that such elections are not nearly enough to overcome the shortcomings of representative government.

All people dream of freedom and happiness, particularly those who have experienced the inequities and repressions of autocratic governments. We Americans were blessed with the opportunity to realize our dream of freedom at the confluence of the Scottish, English, and French Ages of Enlightenment in the 18th century, when ancient Greek concepts of democracy experienced a rebirth. Nevertheless, we had to struggle for our freedom with blood and sacrifice in a revolutionary war. It wasn’t until 1787 that the structure of our government took permanent shape, the design of which became a beacon that would guide the peoples of the world toward a system of representative government.

When the Constitutional Framers met in Philadelphia, their options in designing our new government were unduly influenced by the fact that the 13 confederate states, all independently sovereign, were in the process of falling apart internally and as a confederation. The convention delegates were the wealthy elites of those states; any loss of civic cohesion would directly affect their personal property. Their initial preference for the structure of a new government, derived from the successful colonial experience with the town meeting system of governance, should have produced an amalgam of representative and direct citizen involvement in government.

Unfortunately, the pall of slavery gripped the convention’s proceedings, holding hostage any possible truly democratic success.

Compounding the tragedy the Framers were about to initiate was the fact that probably the best opportunity to rid the American society of the scourge of slavery was the period from the cessation of the Revolutionary War hostilities in 1781 to the beginning of the Philadelphia Convention in May 1787. Free blacks and slaves had fought in the Revolutionary War in numbers that exceeded their demographic distribution and “king cotton“ had yet to take command of the Deep South with Eli Whitney’s cotton gin. Blacks had earned their piece of the American dream.

I believe the point at which the American dream of freedom was eclipsed was when the delegates to the convention failed to keep faith with the principles of the Declaration of Independence articulated 11 years earlier. That Declaration was the dream - , the vision – that all men are created equal. Delegate John Rutledge of South Carolina, backed by the delegates of Georgia, blackmailed James Madison, the architect of the convention, and the rest of the delegates into accepting slavery as the price for their states joining the new government.

The Framers compromised the moral principles articulated in the Declaration of Independence and made a deal with the devil in order to unify a new nation and prevent the certain collapse of the Confederate States that threatened their personal wealth and power. The legacy of slavery plagues us to this day. Repeated generational transfers of cruel, inhuman norms of conduct toward fellow humans, rationalized by Holy Scripture, have damaged the American psyche. We are a violent people, still sustained by religious fervor.

The American psyche was further coarsened by the national sense of “manifest destiny,“ the idea that God wished us to exercise dominion over the land. Land represented economic freedom and a chance for upward mobility. The land of the continent was there for the taking, even though the land was already occupied by the American Indians. In a cruel electoral calculus, settlers used their government’s military power to legalize their continued encroachments on Indian lands. Settlers voted; Indians did not. The Indians were not enslaved but were nearly annihilated.

The Constitutional Framers, the elites of their day, created a system of representative government that held a monopoly of legislative power that facilitated policies that shame us to this day. Regardless of how much we praise our form of government, it cannot by any stretch of the imagination be called egalitarian or democratic. Our Constitution, creating the structure of representative government, favors elites simply because it was written by elites. And, of course, they did not fail to provide for the continuity of their own power by establishing procedures whereby they could amend the Constitution with Article V and make laws with Article I.

Our Constitution has been extensively copied around the world. Obviously, the structure of representative government does not threaten other elites governing other societies.

The Framers wrote a document that defined the first constitutional representative government in history. Representative government has since been the norm in all democracies except Switzerland, which copied our Constitution but added one very powerful change – a change that represents the next step in the evolution of democracy. The Swiss Constitution, written in 1848, added the people as lawmakers, creating a very successful governing partnership with their elected officials. This was the intended road but the one not taken by the Founding Fathers of America.

The Framers had to exclude the people from the ratification process in order to secure the ratification of their flawed Constitution. They had a daunting task. They had to avoid a vote in the Confederate Congress, where the Constitution would likely not have been ratified. Similarly, they had to avoid votes in the state legislatures by persuading them to refer ratification to state conventions called for that purpose. The convention scenario also permitted the Framers to circumvent the people, denying them a direct legislative role in the ratification process. The process of circumventing the people was made necessary by what had occurred nine years earlier in Massachusetts.

In 1778, Massachusetts placed before its citizens a constitution for ratification that included slavery. The people refused to ratify it. In 1780, a constitution authored by John Adams that excluded slavery was then overwhelmingly ratified. The Framers in Philadelphia were well aware of ordinary people’s attitude toward slavery, so they figured out how to keep them at arms length from the ratification process: that was to have the state legislatures call for state conventions and refer the Constitution for ratification to them. The elites, for and against ratification, then controlled the conventions. This had universal appeal. It offered a way to kill or ratify the Constitution without the existing governments being held accountable. It permitted the political elites for and against the Constitution to gather and fight it out without being pestered by the real people.

Even with the success of overcoming these barriers, it was literally a miracle that the Constitution was ratified at all. Fifteen votes strategically placed in three states would have meant defeat. Would a Constitution without slavery have fared better? I think so. At least the Framers would have had the integrity to put the ratification before the people who, as the Preamble stated, “do ordain…“ The real impact of the people being cut out of this legislative act was to alter the entire nature and the rule of citizens in American governance to this day.

All of the Founders and Framers believed that the people had every right to exercise their legislative sovereignty to make laws. They are quoted frequently, pointing out that future generations have an obligation to alter their governments and constitutions to suit their interests. They also pointed with pride to the seminal lawmaking act of the Declaration of Independence. Nevertheless, they sacrificed the people’s lawmaking right to protect the ratification of their compact with the devil - slavery. They locked slavery so tightly into the Constitution by excluding procedures whereby the people could amend the Constitution that it took a Civil War to make the moral correction.

The Framers’ fears that the people would remove slavery from the Constitution if empowered as lawmakers were well founded. The first lobbying act of the first Congress was an assault on slavery by Pennsylvania Quakers led by Benjamin Franklin. It was successfully thwarted by James Madison and Southern slaveholders with the understanding that the Congress would never address the subject again.

Slavery was so effectively embedded in the Constitution that its removal, short of a civil war, was impossible. Of the five features locking slavery into the Constitution, only one - that of a slave being counted as three-fifths of a person for representative purposes in the U.S. House - had been removed by the time of the Civil War. The other four highly undemocratic features of the Constitution have remained to work their mischief on us to this day, long after the demise of slavery. They are: 1) the Electoral College, 2) Article V, 3) the U.S. Senate, and 4) state control of federal elections.

The amending process described in Article V is so undemocratic that the chambers (House and Senate) of the 13 smallest states can stop any national reform - a population ratio considerably less than 10%. Little wonder why so few changes have been made to update the Constitution to meet the needs of the 21st century since its ratification in 1788. Other than housekeeping, the only changes to the Constitution have been the expansion of the voting franchise. The property ownership requirements were essentially removed at the state level prior to the Civil War. The expansion of the voting franchise to male blacks was the product of the Civil War Reconstruction amendments. The way was paved for a federal amendment to include women in 1920 - as a result of repeated passage of initiative and referendum laws granting women the right to vote by state governments.

From my perspective, the most damaging legacy of slavery on the Constitution, other than the exclusion of the legitimate exercise of the people’s legislative power, is the control of federal elections by state governments. By controlling who could get elected to federal office - president and members of Congress - states asserted real power many times superior to the federal power based in the Constitution. This issue is better understood as “states’ rights.“ It has kept in contention the supremacy of the federal government. This treatise is too short to treat the havoc that this issue has wrought on the nation.

The first fundamental change in American governance since ratification in 1788 took place at the turn of the last century without amending the Constitution. Starting in 1898 and up until the First World War, more than 20 states amended their constitutions to permit their citizens to initiate and enact laws and amend their constitutions. The motivation for Initiative, Referendum, and Recall (IRR) laws was the abusive corruption of government by the business community in the post-Civil War boom and the “robber baron“ era.

The legislative role of the people with different laws from state to state has not been consistent. Additionally, citizen lawmaking has not been independent of representative government, which has sought to use its control to continually diminish the people’s legislative role.

The problem of citizen participation in government applies not only to those states with initiative law, but also to all states and at all levels of government. It has never been easy for people to participate in the political process except under the direction and control of political parties that hold a monopoly over the electoral process.

No force in history is more oppressive than government. There is never a guarantee that successful governance in one era will be passed down in a straight line to subsequent generations. So many factors come into the chain of human events that nothing can be guaranteed, and malevolent forces are always at play.

Representative government frequently falls prey to the dark side of human nature and more so because of the competitive, confrontational representative structure of government itself. At the federal level the Congress has a legislative monopoly. The Constitution distributes congressional representation geographically where the economic, resource and special interests of each state and each district come into competitive confrontation for the limited wealth of the whole government. Add to this a committee system designed to compartmentalize the specialization and expertise of individual members, who are ruled over by committee chairmen and ranking members who acquire control of legislative empires by a seniority system, regardless of individual competence.

I have yet to touch upon where the real machinations of the legislative process take place and where the ultimate control of government resides—in the political parties. They are not even referred to in the Constitution, and the Founders universally disdained them as odious “factions;“ yet, they appeared in the first presidential administration of George Washington and to this day carry more clout than any power defined by the Constitution. Historically, they evolved around regional economic ideologies into a two-party monopoly, which they jealously guard with the full force of the law and the police power of government. It is to this unsanctioned power that gravitate the special interests of the nation, special interests who seek to influence the direction of public policy in a venue hidden from public view.

The above description of representative government is not meant to be pejorative in any way. It’s how I experienced and understand the process. I do not believe those within representative government can correct it. There are only two venues for change: the government and the people. I believe the solution is obvious. The People must be brought into the governing process in the only possible role - that of lawmaker. I do not mean to imply that the people as individuals are superior in intellect to their leaders as individuals. Not at all. But the people acting as a constituency of the whole, legislating by majority rule, do not have barriers in making decisions involving the public interest. The constituent majority identifies and votes its enlightened self interest. That is not the case with representatives in government, who have generic barriers in dealing with the public interest that in many cases do not coincide with their personal self interest, the financial interests of their backers, or the interests of their political party in gaining or retaining power.

Will laws enacted by majority decisions of citizens be perfect? Far from it. But they will be much improved over the minority rule we now suffer. When people make mistakes, they will be more inclined to make corrections. That is not the case with representatives, who are averse to admitting error for fear of having that information used against them in the next election.

I conclude with the simple observation that the answer to the problems of human governance lies with the people - and not with their leaders. The design of representative government maintains citizens in civic adolescence. We want the largesse of government, but are reluctant to pay for it. We blame our elected officials when things go wrong, when in fact we are responsible for putting them in office. That is the definition of adolescence. By becoming lawmakers and becoming responsible for public policy, the consequences of which we will enjoy or suffer, we will facilitate our civic maturation - a human development that will benefit all facets of human life.

Civic maturity is the most important result of turning to each other as lawmakers to exert control over our system of representative government. The American dream envisioned in the Declaration of Independence is the vision of all human beings. We have yet to realize it in America, and when we do, I predict it will race around the world with the speed of light. Cicero defined freedom as participation in power. Lawmaking is the only role for the people to participate directly in power and enjoy freedom - a birthright, if the People choose to claim it.