Dumbocracy Now


Written by Daniel Hoffman who gave permission for its use

How democratic is the Constitution? I understand a “democratic” constitution to be one that acknowledges and alleviates inequalities of power. Not content with formally equal rights that many are in no position to exercise, it aims at equal access to the political process, conferring political rights that enhance the prospects of all citizens for a productive, fulfilling life. Political rights include, first, rights to vote and hold office and, second, rights to participate in other ways that can influence who is elected and what they then do.

Our original Constitution was explicitly republican, not democratic. It prioritized liberty and property, not equality. In his keynote address, Edmund Randolph told the Convention that their primary object was to establish barriers against the “excesses of democracy” in the States. Despite democratizing reforms, the Constitution still is significantly undemocratic. Its structure, text and prevailing interpretations perpetuate built-in inequalities of power.

With regard to voting rights and election procedures, the text is undemocratic in several respects. First, there is no explicit fundamental right to vote. The republican form of government obviously depends on regular elections, but the federal system left their regulation, including the grant of suffrage, up to the States. Initially, few could vote. It is estimated that only about 15% of adult white males participated in electing delegates to the conventions that ratified the Constitution.

While suffrage has been expanded by the 15th, 17th, 19th, 24th and 26th Amendments, significant democratic deficits remain. Even with today’s much broader suffrage and the Court’s one person, one vote rule, State control of elections enables gerrymandering, severe ballot access restrictions, obstacles to registration and voting, etc. Moreover, residents of the District of Columbia, Puerto Rico, etc., are denied full representation.

Second, the electoral college and the equal representation of States in the Senate are hugely undemocratic features of the text. Madison once wrote that bicameralism established the Senate to represent “property,” and so it often does.
Third, even if all states and districts were equally represented, the election system is circumscribed and distorted in other ways. Why is representation purely geographical, when citizens’ identities and interests often are not? With single-member districts, a party with very substantial support may gain zero representation. Moreover, elected officeholders have great advantages in seeking reelection, and they have delegated vast powers to appointed officials not accountable to voters. Great influence is also reserved to “private” actors like Rupert Murdoch and Karl Rove, who are not politically accountable.

A fourth explicitly undemocratic feature is judicial review. Courts not only can block legislative attempts at egalitarian reform, but can even blunt the impact of constitutional amendments, as occurred with the 14th Amendment prior to Brown. The Warren Court did take steps toward greater political equality, but the effects have been modest. More recently, the Court has reverted to its typical historical form, weakening the Civil Rights and Voting Rights Acts and even presuming to decide a presidential election by dictating how a State could count ballots (Bush v. Gore).

In sum, the Constitution mandates some of the undemocratic features of our election system. It permits the rest, and makes them hard to address through conventional politics. Today, most elections are uncompetitive, many people are hindered from voting, and effective participation is extraordinarily costly. Some of this is an ongoing effect of the compromises required to keep the slave States in the union; much of the rest is a politically-won electoral bonus for more modern forms of property.
Political participation consists of much more than voting. A democratic constitution would actively promote effective access to the political process for all citizens. Textually, we do have the First Amendment freedoms of speech, press, petition and, implicitly, association. These provisions enabled the rise of a political party system, not contemplated or intended by the Framers. That system produced, over time, a great expansion of suffrage. It also radically modified the anticipated relationship between Congress and the President, giving us a system in which presidents and bureaucrats are the active agents. The party system has nullified Madison’s assurance in The Federalist #51 that Congress would zealously defend its institutional prerogatives against usurpation. Designed as the engine of government, it instead promiscuously delegates power, and exercises oversight only on a partisan basis, subject to the Senate’s peculiar, supermajority voting rules and customs.

Designed to execute the laws, the modern presidency seeks to avoid congressional mandates and interference as far as possible. Designed to safeguard the separation of powers and personal rights, the Court too often defers to the executive or abstains from deciding. Though less accountable, the Court is unavoidably (though differently) as political as the other branches. That is to say, its members are human.

Madison also opined, in The Federalist #10, that tyranny of the majority was the greatest threat to a republican government. They might, he said, attempt an “improper or wicked project” such as “the equal division of property.” However, it appears that minorities are at least as dangerous, insofar as they are more capable of prolonged, concerted, effective action. The “iron triangles” of lobbyists, bureaucrats, and congressional staff that dominate Washington are built into our ostensibly democratic system. The right to vote against short-sighted, self-interested, sometimes corrupt elites is not the panacea advertised in The Federalist #10—partly due to the checks on democracy built into the Constitution.

A democratic Constitution must address the relationship between political power and other forms of power—especially those, like economic power, that are most easily translated into political power. Our Constitution, however, protects private property. Given the market’s entrenchment of unequal wealth, political equality requires secure barriers between economic and political power. These are difficult to design and even more difficult to enact. Now we find that the Court will not permit them anyway. Its First Amendment doctrine does not protect the equal political rights of citizens. Instead, that doctrine protects the translation of unequal property into unequal political power. The so-called “free marketplace” of political ideas is anything but free. Most of the effective speaking is procured and formulated by the small number of large campaign contributors, lobbyists and media moguls who can afford it. Reform efforts like the equal-time and fairness rules for broadcasting have been honored in the breach or revoked. Under Buckley v. Valeo, limits on campaign spending are said to infringe on the freedom of political speech—a right now bizarrely extended by Citizens United to inanimate entities that cannot vote or hold office.

In addition, the two-party system limits choices more severely than a more democratic system would. Despite the clear distaste of the Framers, the party system seems to have acquired constitutional status, for the Court brusquely dismissed First Amendment questions in decisions like AETC v. Forbes, allowing restricted participation in debate broadcasts, and Burdick v.Takushi, holding that the write-in vote is not a constitutional right.

The internet does offer less costly, hence more democratic access to the marketplace of ideas. However, there are signs that the net is producing a more fragmented public, less open to two-sided argument. The traditional commercial media, always interested in sensational stories, have helped bizarre stories on the internet go “viral” by publicizing them. The principle of “net neutrality” is under pressure from those who seek to buy or sell privileged access to those who can pay more. Pervasive spying by government and business may chill internet political speech. Thus, the democratic potential of the internet is, at best, fragile and inchoate.

Another lacuna in First Amendment doctrine is that one cannot speak meaningfully about matters that are not known. Current First Amendment doctrine does not address pervasive secrecy. Like governmental powers, personal rights can and should be construed in ways that facilitate achievement of their underlying purposes. The primary purpose of political speech is to generate sound, enlightened policy and electoral judgments. Since secrecy directly frustrates those aims, the First Amendment ought to be understood to incorporate a broad right to know what government is doing and what actions it is contemplating. Instead of recognizing this right, the Court has done the opposite, creating a historically baseless doctrine of executive privilege. Article I, section 5 gives to Congress—not to the President–the power to decide what information becomes public. Yet today, what we know is what literally millions of officials, given classification authority by executive order, want us to know; their incentive is usually to disclose as little as possible. The Freedom of Information Act is riddled with loopholes, and leakers are not protected by the First Amendment; instead they are subject to threat of prosecution, leaving officials too often unaccountable for incompetence, broken promises and even crimes.

First Amendment doctrine also protects most misleading, even knowingly false statements, which can hinder rational decision making at least as much as secrecy does. The harms caused by lies and misinformation are not easily mitigated, and deserve to be taken seriously when efforts to mitigate them are challenged on free speech grounds. Our doctrine reassures us that the cure for such harmful speech is more speech. As an empirical claim, the validity of this depends on how many who know the truth have access to the media of mass communication. It also depends on the beliefs, attitudes and attention span of the audience. Today, dissident officials are silenced by confidentiality agreements and other pressures, while relentless negative messages, exaggerated if not downright false, poison our political discourse with distrust and hatred.

These behaviors might be of little concern were the electorate highly sophisticated, but today, surveys and anecdotes show alarming levels of ignorance. Millions want government to “keep its hands off our medicare.” Research suggests that “many citizens seem unwilling to revise their beliefs in the face of corrective information, and attempts to correct those mistaken beliefs may only make matters worse.”

Educating the expanded electorate has proved a more formidable challenge than the Framers anticipated. In Pierce v. Society of Sisters, the Court guaranteed an alternative option to public schooling, with the result that elites need not personally suffer if government neglects the public schools; moreover, funding schools according to neighborhood wealth is not unconstitutional (Rodriguez). “Local control of schools” empowers local school boards to dumb down their curriculum and thereby degrade textbook content nationwide. Meanwhile, formal education, whatever its quality, must compete with the stupefying effects of commercial media, whose aim is not to enlighten, but to profit by manipulating emotions such as covetousness, fear and anger. The ignorance and the negativity so often displayed in opinion surveys are, in part, a systematic product of fear-arousing news broadcasts and talk shows, embedded in a relentless barrage of violent, lurid “entertainment” and deceptive advertising. Not surprisingly, those who resist spending on public education tend to oppose government support for public broadcasting as well.

Given all of these limitations on voting rights and distortions in the marketplace of political discourse, my thesis is that our political system, far from being truly democratic, is best classified as government by the rich over the bewildered. In Greek terminology, one might call it a plutocratic dumbocracy.

The “law and economics” movement has had some success in arguing that legal rights should be awarded, free of charge, to those who could and would pay the most for them. This program is unlikely to win elections, but judges are free to follow it. The Constitution, as amended, provides substantial space for democratic reforms, but today, some openly seek to restore the Constitution as it was originally, or in 1800, or 1936. Some even advocate repeal of the 17th Amendment! They must imagine we could turn the clock back successfully without returning to the physical boundaries, the economic system, the social homogeneity, and the modest global role of those years.

What shall we do if we want to make the system more democratic? If my analysis is correct, the first democratic desideratum is more competitive elections. The right to vote is currently enjoyed, in most cases, as a right to live in, or move to, a district safe for our party. We ought to insist on real choices, including easier ballot access. We should end partisan gerrymandering, or adopt some version of proportional representation. Although the courts seem stymied by gerrymandering, there are no valid constitutional objections to ending it through the political process. Incumbents will resist, but incumbent protection is not a valid public interest and should play no role in redistricting, let alone in broader election reform.

We should also support public funding of campaigns, with mandatory coverage of debates by publicly licensed media. There are many difficult questions about the best way to do this, but few if any legitimate constitutional objections once equal access is accepted as a fundamental democratic norm.

Beyond election reform, we should insist that citizens have a fundamental right to know what government is doing and contemplating, free of unilateral, unreviewable exceptions. Statutory changes such as FOIA amendments, press shield laws, and a legislated classification system could greatly facilitate the flow of valuable information, if Congress embraced that goal.
It might also be wise to experiment with legal incentives for exercising the right to know. “Literacy tests” are prohibited by the Voting Rights Act. Nevertheless, ignorance is not a category constitutionally protected against discrimination. Anyone who confidently creates and grades exams should agree that it is possible, in principle, to construct valid, unbiased tests to qualify people for a variety of governmental privileges and benefits.

To the extent that constitutional doctrine may stand in the way of democratic reforms, Article V amendment is not a promising alternative. Amendments opposed by powerful elites would probably not be adopted, though some that may appear to be democratic in nature might be attainable and turn out to be counterproductive. For example, I believe that the primary effect of term limits would be to expand executive power vis-a-vis the legislature.

The Article V alternative of a constitutional convention is tempting, but it would almost certainly be dominated by the usual elite interests. Let us fantasize about an electronic “teledemocracy” convention in which all citizens could participate on equal terms. Here we confront a large question: Who are “the people of the United States” today who want to “take our country back,” and from whom? We seem to be polarized about the best reading of the powers of government and the scope of personal rights, and we would be at least as polarized about proposals for major textual revision. Today, any Constitution accepted by even a large majority would be widely viewed as illegitimate. How much could be done by consensus?

Let me resort to some wishful thinking. My aim is to make government more democratic, more effective (end gridlock), less monarchical, and more accountable. Were we to start from scratch, we might be best off with a unicameral legislature, small enough to be effective, in which some seats are filled by single-member district representatives and others by nationwide proportional representation. Eligibility to vote would be nationally determined, though States, if we keep them, could enfranchise additional voters. A preferential voting system for the single-member districts, in which voters rank the candidates in order of preference, would open the door for third parties and independents. Redistricting would be done by bodies as nonpartisan as possible. Elections would be funded exclusively by public moneys. Presidents would be chosen by national majorities, again with preferential voting and public funding. The President and legislators would serve parallel four-year terms.

Legislators would have access to all information possessed by other branches. The power of executive officials to act without prior legislative authorization would be severely limited, because in the electronic age, rapid consultation will virtually always be possible. All elected officials would be subject to removal by the legislature, but members voting to remove them would have to resign their own seats, and could not run in the next election.

Judges would be nominated by the nonpartisan redistricting panels and confirmed by the president for limited terms. Judicial interpretations of the Constitution would be subject to override by legislative supermajorities. No official would be immune from suit for intentionally or negligently inflicted harms.

If you like these ideas, please write me in on your ballot for the position of platonic guardian emeritus.

~ by mickeyhoffman on January 2, 2011.

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