May 7, 2009 by Daniel Stack
Democracy… while it lasts is more bloody than either aristocracy or monarchy. Remember, democracy never lasts long. It soon wastes, exhausts, and murders itself. There is never a democracy that did not commit suicide.
Your representative owes you, not his industry only, but his judgment; and he betrays instead of serving you if he sacrifices it to your opinion.
– Edmund Burke
I really like the system of government we have in the United States. But it bothers me when people refer to us a democracy. When I refer to democracy what I mean is some form of majority rule, whether by direct voting or by proxy. The Founders of the United States weren’t quite ready to trust their new nation to a democracy. The best description I’ve heard for the system of government of the United States is a Constitutional Republic.
What’s the difference? I have a hard time picturing a democracy with a strong – or even existent – judiciary branch of government. Not that there wouldn’t be judges, but those judges would have no place in judging the constitutionality of laws. And it is also hard to picture a strong executive in such a form of government.
The United States government has elements of democracy, especially in the House of Representatives, where each representative is elected by and represents a little under 0.25% of the population. The Senate has some democratic elements, whereby each senator is elected democratically from the states. But given each state has a different population yet all have two senators, senators from smaller states hahve a proportionately greater voice. This is because the Founders intended both the states and the people to have their voices.
I won’t go into the undemocratic election of the president given the electoral college system. But the chief executive, once in office, has undemocratic powers. He can overturn the will of the Congress by the power of the veto. His power as commander-in-chief of the military is vast. Yet he is constrained – he can’t make cabinet or judicial appointments without congressional approval. Nor can he initiate legislation.
And then there’s the branch that really drives people bonkers – the unelected and unaccountable members of the judiciary branch, home of all those evil activist judges. In my view this is the most undemocratic branch of government. And I think that is a good thing. The judiciary branch, in deciding individual cases, has the power to render a law unconstitutional. For instance, attempts to ban flag-burning have been overturned by the US Supreme Court as violations of First Amendment protections. The Supreme Courts of the states of Iowa and Massachusetts have overturned laws that prevented same-sex marriages.
I view all of this as a good thing. Don’t I trust the people? To be honest, only to a certain extent. We all have our individual prejudices. Direct democracy gives free reign to these prejudices, leading to the “tyranny of the majority”. Greek democracy had problems with this. For example, consider their practice of ostracism: the citizens would vote whether to banish someone. There was no charge, allowing the removal of unpopular people. Democracy is susceptible to the passions of the moment, the charisma of a mob leader. A constitutional republic moderates these passions, allows for careful consideration.
That said, I do believe the democratic method of electing office-holders is vital. It ensures that the office-holder is accountable to the people. Ideally, a member of the House would be most vulnerable to the passions of the moment, with but a two-year term limit. That hasn’t worked so well in practice, given the problem of congressional districts designed to protect incumbents. Senators, on the other hand, do have the luxury of a longer term of office, allowing them to take stands that may initially be unpopular back home. The longer term of office allows for passions to cool and the effects of legislation be seen. This gives the senator a greater ability to break with the current wishes of his or her constituency, though the senator still will eventually stand before them for reelection. And representing a whole state means no redistricting can help an unpopular senator.
This brings me to what motivated this post in the first place. The state of Maine has just legalized same-sex marriage, though a petition-drive is expected to get a ballot initiative to overturn that law. I really don’t like ballot initiatives. I mentioned I only trust people to a certain extent. About a year ago I served on a jury for a minor personal injury case. I was very impressed how seriously all of us on the jury treated the case. So based on that you’d expect me to like ballot initiatives. The difference is the format. We sat through the entire trial, no television or iPods to distract us. The judge gave us specific instructions on what we were being asked to do. On the other hand, a ballot initiative is often a battle of passions, of advertisements which may have some very gross exaggerations or outright falsehoods, without a judge to remove inadmissible evidence. It seems a mistake to short-circuit the legislative process. When you elect a representative or senator you are placing your trust in a lawmaker, one whose positions and/or judgement you presumably support (or tolerate). Citizens aren’t responsible for setting state budgets, yet ballot initiatives are often dedicated to tax rates or funding of certain projects.
That said, my policy against measures being decided at the ballot box is not absolute. I do believe that cases where the “rules of the game” are changing make for good cases to be decided at the ballot box. Examples of this would be ammendments to the state or federal constitution. However, I think this is not something that should be easy or decided by a simple majority. But if the rules under which government is to operate are to change then the people en masse need to have their voice heard. Though using such measures to restrict freedom is particularly ugly, an excellent reason for requiring a super-majority to protect the rights of a minority. And it should not be something easy to get on the ballot, a problem I feel many states have.