A to-do list for repairing US democracy

 

If we're lucky enough  not to spiral down into dictatorship during this fall's Presidential election in the US, we need to have a ready-made to-do list for repairing democracy.

To start off a conversation on that, here's my current thinking…

Draft Proposed “Freedom Amendment” to the US Constitution

(Rationales, in green, are informational, not part of the amendment.)

In order to solidify and preserve democratic rule within these United States, these changes are hereby ordered to all United States policies and procedures:

1. Voting

1. No Electoral College. The Electoral College is hereby dissolved. Presidential elections shall henceforth be determined directly by majority vote of all United States citizens who are eligible to vote.

2. No commercial interference in elections. No for-profit corporation or company, nor any non-profit corporation or company that as their primary business offers products or services for commercial sale, may contribute to campaigns or other activities that could reasonably be seen as trying to affect election. (The ruling in Citizens United v. FEC is vacated.)

3. Restore the Voting Rights Act. The ruling in Shelby County v. Holder that voided section 4 is hereby reversed, restoring this Act to its full form and asserting full Constitutional backing to the Act. Preclearance is hereby required for all 50 states equally.

4. No “gerrymandering.” The practice of gerrymandering while drawing district boundaries at the federal and state levels is hereby disallowed.

5. Ranked-choice voting. All federal elections shall be handled via a ranked-choice voting process.

2. Ethics & Oversight

1. Supreme Court Ethics Code. The Supreme Court shall henceforth be governed by the same ethics code that binds all federal courts.

2. Congress and the Supreme Court shall be subject to term limits.

   1. Senators may be elected to no more than 3 terms.
   2. Representatives may be elected to no more than 5 terms.
   3. Supreme Court Justices may serve no more than 18 years.

3. No one is above the law. Elected members of all three branches of government are subject to all laws, just like any other person, even though prosecution of such a person for crimes must wait until that person leaves office. In cases where immediate prosecution might be important, impeachment is an option.

4. Senate impeachment votes are not optional. If the House impeaches someone, the Senate must immediately perform all business necessary to assure a timely vote on that impeachment; this process is not optional and may not be postponed. Once an actionable concern has been raised that a public official might have committed a crime, the public has an interest in swift resolution.

5. House and Senate impeachment votes are temporarily private. Impeachment votes by both House and Senate will be recorded and tallied privately, preferably electronically, with only the aggregate result reported immediately. Individual votes will be held securely in private for a period of ten years, at which time all such votes will be made a public part of the historical record.

6. Public office is not a refuge to wait out the clock on prosecution. Any clock for the Statute of Limitations does not run while prosecution is not an option. This applies for all elected persons for whom indictment or prosecution is locked out due to participation in public office, but in particular for POTUS. It may be necessary to the doing of orderly public business not to prosecute a President while in office, however public office is not a refuge in which someone may hide out until the clock runs out on otherwise-possible prosecutions, whether that clock began before or during time in office.

7. Pardon power is subject to conflict-of-interest (COI) restrictions. It is necessary to the credibility of all public officials in a free society that there be some reasonable belief that rules of law do not create options for corrupt officials to abuse the system. Presidents and other state and federal officials embued with the pardon power may never apply such power to themselves, their families, or any other individuals with whom there is even an appearance of conflict of interest. No such person may solicit any action by anyone on promise of a pardon. Any single such action, attempted action, or promise of action where there is a conflict of interest that is known or reasonably should have been know to the party exercising pardon power is an impeachable offense and a felony abuse of power subject to a penalty of ten years in prison.

8. Independence of Department of Justice. The head of the Department of Justice shall be henceforth selected by a supermajority (2/3) vote of the House of Representatives, without any special input from or deference to the Executive.

   Rationale: Assure DOJ operates independently of the Executive, its mission being to fairly and impartially uphold Law, not to be a tool of partisan or rogue Presidential power.

9. Independence of the Supreme Court. Justices of the DOJ shall be henceforth selected by a supermajority (2/3) vote of the House of Representatives.

   Rationale:

   1. When SCOTUS must rule on the validity of Presidential action, a conflict of interest is created if those Justices might be appointed by that same President or even a majority party.

   2. Since the Constitution requires a supermajority to change its intent, an equivalent degree of protection is essential for choosing those will will interpret that intent. Recent history has suggested that it was easier to change the Court than to change the Constitution, with catastrophic effect decidedly unfair to the majority of citizens.

   3. A President is more than Appointer of Justices, yet that singular capability is so powerful and lasting that it often dominates election campaigns. Citizens need to be free to hire Presidents for other reasons more unique to the moment, such as good judgment; logistical, management, or negotiating skill; expertise in technical or scientific matters; or even just empathy with public issues.

3. Rights of People

1. Corporations are not people. Corporations are legal constructions, nothing more.

   Rationale: To say that they are independent people, is to give some actual people (those who own or control them) unequal, magnified, elitist, or otherwise distorted power over others. There is no place for this in a democracy that purports to speak of all people being created as equals.

   1. No Implicit Rights of Corporations. Any powers and duties of corporations must be explicitly granted to them, as coporations, whether by the Constitution or by legal statute, and henceforth must never be derived from any implication of imagined personhood.

   2. Explicitly Enumerated Rights of Corporations. Long-standing legal powers and duties of corporations such as the right to sign contracts, the right to own property, the responsibility to pay taxes, and any legal responsibility under tort law are hereby acknowledged by express enumeration in support of demonstrated corporate need and are no longer intended to be inferred as part of any preposterous fiction that corporations are just another kind of person.

   3. Non-Rights of Corporations. Alleged rights such as, but not limited to, rights of free speech and religious rights for corporations are hereby clarified to be nullified and without basis. A corporation has no automatic rights of people extending from any metaphor of being person-like. Politics is the province of individual persons, not corporations. Corporations exist for sales, subject to the rules of laws made by individuals, not vice versa.

2. Bodily autonomy right. All mentally competent people have a right to autonomy over choices of medical procedures affecting their own body.

   1. No Forced Pregnancies. From the time of conception to the time of birth, no government nor any other person may have a superseding say over a pregnant person as to any matter relating to a fetus.

      Rationale: This should already follow from the Religious Freedom Clarification, but it is too important to leave to chance. To say that any other person could make such choices would be to allow their religious freedom to infringe the religious freedoms of the pregnant person.

      Also, the term “pregnant person” is used here intentionally to include that adulthood is not a requirement of bodily autonomy. In general, any person who has not been legally ruled mentally incompetent is entitled to self-determination on matters like this. Not even a parent should have superseding control, since a parent will not have to live a lifetime with the consequences.

   2. Fetal Disposition is a Private Matter. Whether a pregnant person wishes to refer to a fetus as simply a fetus, a potential life, an unborn child, or an actual child is a personal religious choice to be made by that pregnant person. No law shall impose a policy on this.

      Rationale: To say otherwise would be to deny the obvous fact that people simply differ on this matter. To assume there were some single right way that everyone must adhere to would be to give dominance to some religious philosophies over others.

      It's a compromise, but the only one that it allows each person the best guarantee of at least some autonomy in a society where not everyone agrees and we are not likely to change that fact by fiat.

      Also, and importantly, some pregnancies are not successful and even in a society where we permit abortion for those who weren't wanting to be pregnant, it would be callous and undignified not to acknowledge the legitimate loss to others who sincerely wanted to carry a pregnancy to term but were unable. It is possible to be respectful in both situations, by feeling the grief of someone who wanted a child and not manufacturing grief for someone else who did not.

3. Right to Choose a Marital Partner. Among consenting adults, the choice to choose who to marry must not be restricted due to race, religion, gender or sexual orientation.

   Rationale: This has been accepted already and it is not appropriate to roll that back. It was a good idea anyway, though, because happy families add an extra level of safety net protection to society. Family members try to take care of one another during sickness and other hard times, and this hopefully reduces some amount of stress on public safety nets.

4. Religious Freedom Clarification. The right to religious self-determination is a basic human right.

   1. Religious Choice. All people have the right to explore religous choice on their own timeline and terms. No one is required to pick any particular philosophy, or any philosophy at all, or even to make a choice.

   2. Religious Equality. Religious protections span all religious choices (and non-choices), and hence are accorded equally to all people. No person may be accorded second-class legal status on the basis of their religious philosophy—or lack thereof.

      Rationale: So atheists, agnostics, etc. are still due religious freedom protection. Answers to “Is there a God?” are still due religious protection if the answer is “no” or “I don't know” or “I haven't decided” or “I don't know what that means” or “This is not a binary question.”

   3. No State Religion. The so-called “establishment clause” of the First Amendment is hereby clarified to mean that the United States takes no position that might give the appearance of preferring one religon over another.

      Rationale: We are not, for example, a Christian nation. Nor a Jewish nation. And so on. And yet the US is a nation that intends to treat each religion and non-religion in the same supportive and respectful way, and expects each of these religions to be respectful of others. This is how balance is maintained in pluralistic society.

   4. Religion is not a Popularity Contest. The fact that one religious philosophy might at any given point be more common than another does afford that philosophy a greater or lesser status.

   5. No Bullying in the name of Religion. The freedom of religious choice is not a right to bully or coerce, nor to violate law. Each person's right of religious choice extends only to the point where it might infringe on the equivalent rights of others.

Yes, this could be done by separate amendments. But it would be a lot of them, and the discussion would be much more complex. I say do it all at once because every one of these things is absolutely needed.

If anything, there might be a few things I left out.

 

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Author's Notes:

If you got value from this post, please “Share” it.

This post was catalyzed by a single tweet by me on ex-Twitter, but it has been hugely elaborated since, after all, this venue does not have a 280 character limit.

The odd graphic of the scales of justice under repair was created by Abacus.AI's ChatLLM facility, using Claude Sonnet 3.5 and Dall-E and the prompt:

Draw a picture of a grayscale statue of a woman holding the scales of justice in one raised hand and a small wrench and a pair of needle-nose pliers in the other hand, lower, at her side. part of the statue should include a toolbox next to her feet that is open and presumably where she's taken the wrench from. the woman should be wearing a flowing gown, as is traditional for this kind of statue, but she should have a pair of goggles on her head, as one would use in a metal shop to protect one's eyes. The woman should have a pair of protective goggles, like one would use for metal working, over her eyes.

And, yes, I'm aware I did not get the needle-nose pliers got left out. And on this iteration I didn't ask for her to be seated, though I had been thinking of requesting she be seated at a work bench to resolve some unwanted aspects of previous attempts, so I went with this as the best of several tries.

Congressional Pardons

Perhaps Congress should allocate itself the power to both grant pardons and/or to review&veto Presidential pardons.

I see it as a misdesign that the President has an exclusive, unchecked power to pardon, and without a corresponding power held by the people. In a Democracy, an unstated meta-rule is that a consensus of the people through its representatives in Congress, its consensus body, should always dominate decisions by the Executive.

The Executive is just one person, and subject to whim. As I see it, we grant them power not because we think it safer to put all that power in one place, but because we fear Congress might not achieve consensus fast enough or at all in some cases, and we might find ourselves crippled and unable to react fast enough for everything that comes up in the world. However, in any matter of disagreement between Congress and the Executive, if Congress does muster consensus, it seems to me that's generally preferable as a statement of what We The People should want.

A “review and veto” power would be useful as a check just in case there was ever a lawless President promising collaborating criminals a Get Out of Jail Free card. Whether or not one agrees that Congress should always win every contest of wills with the President, it's clear that the unchecked power to pardon fellow criminals must be reconsidered in at least some way.

As for issuing pardons directly, I'd not expect Congress to issue a lot of them itself because each would require a lot of politicians to agree about a single individual, and usually it would not seem worth the risk. But in the case of malicious prosecution by the DOJ, consensus of We The People should ‘trump’ executive power.

It might also have occasional value in other situations. For example, if Congress decides that marijuana possession, use, or even sale should not be criminalized after all, perhaps regretting that it ever was, then along with a change in the law, it could order blanket pardons of those convicted under prior law, rather than waiting for the Executive or the courts to sort that out, and assuring a more uniform application of new social understanding.

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Author's Notes:

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The essay which became this post started as a tweet thread by me earlier today.

Our much-touted checks and balances have proven slow and ineffective at fending off attacks on the Constitution and our system of Democracy. We need to find ways to strengthen the power of the people against tyranny. That begins with discussions like these.

Disobedience, Civil and Not-So-Civil

Disobedience of the Civil Kind

I have a beef with certain people who enagage in civil disobedience and then expect to be treated as if they did nothing wrong. Should they be treated with human decency and respect? Of course. But should they be treated as if they did nothing at all? No, I don't think so. I want to say why.

It's not the idea that people should be allowed to walk free that bothers me. There are reasonable arguments made about why we might sometimes not want to punish someone who commits an act of civil disobedience. We all know that's true. We tell people not to kill one another, but there are times when we all agree that it's legitimate to do so—certain cases of self-defense, for example. So my gripe here isn't about that.

“Non-violence, publicity and a willingness to accept punishment are often regarded as marks of disobedients’ fidelity to the legal system in which they carry out their protest.”

  —Civil Disobedience

(Stanford Encyclopedia of Philosophy)

My gripe is that people who commit acts of civil disobedience seem to have come to expect to be let off. It's almost as if they see civil disobedience as a right, and they are morally indignant (not to mention surprised and terrified) if they are arrested.

When I was in college at MIT, I attended a meeting in which activists who were concerned about the Seabrook nuclear plant trained others on how to protest. (I think I was there as a reporter covering the event, by the way. I wasn't especially political back then.) Among the things they explained was how to behave if people wanted to be arrested. That wasn't the main thrust of the protest, it was like an extra credit aspect they said some might want to do. In fact, it was pretty carefully explained that not everyone should do this, that only people who really understood the consequences of being arrested and were willing to pay that price should do. They weren't planning anything violent, but they did think it was a legitimate choice to be more-than-average obstructionist if the person was willing to pay that price of being arrested and having a mark on their record. In fact, it was the price they would pay that made the action noteworthy.

Refusing to move when instructed by the police was not seriously going to keep the nuclear plant from being built. But their willingness to spend time in jail peacefully might get them time on the news, since it would arouse sympathy in the population, who might think it awful they'd had to make such a sacrifice just to be heard. But once such a penalty is removed, or routinely waived, why is it be noteworthy? Sacrifice is only sacrifice if you lose something, and if you're assured you won't, you're not making one.

Disobedience of the Not-So-Civil Kind

I want to turn now to another issue that I will ultimately tie in with the above, and that's the issue of ticking time bombs. And no, in case you're worried, I am not going to suggest that these are some good form of civil disobedience. But the discussion of their existence at all will set up something else that I want to talk about.

As you probably know, the ticking time bomb scenario involves the notion that there will be imminent harm to many people very soon, that you are the one who must interrogate a suspect, and that everyone is depending on you to avert a catastrophe. “What would you do to get the needed information?”

And, indeed, here on Open Salon, DJohn posted such a question just the other day in a thread to which I responded. I've lifted my response to him into this post here (with very light editing) to make sure my thoughts on the matter didn't get lost in the shuffle.

The fallacy here is that you think this problem is unique to torture. It is not. Consider any law we have. There are laws against driving fast on highways, against breaking into buildings, and against killing people. We know, for example, that there are sometimes extraordinary reasons why good decent people need to drive beyond the speed limit, break into buildings, and even kill other people. And we do not say, therefore, that there must not be laws against driving beyond the speed limit, against breaking into buildings, and against killing one another. Rather, we expect brave souls to do in extraordinary times what needs to be done, consequences be damned. In some cases, we will exonerate them afterward for breaking a rule because we agree that circumstances warranted it. In some cases, we will not, and we will hold them accountable and they will console themselves knowing that they sacrificed themselves for something they believed was more important.

The situation of national security is no different. Were there really a case where millions could die and there was a chance torture might work, I expect someone would try the torture. If it worked, I imagine he'd be found a hero and forgiven. If it failed, I imagine he'd be court-martialed for his foolish notion. That's not much reassurance, but it ought not be. That's what it is to be illegal, to say that the risk of doing the thing is entirely to be engaged at a personal level. It's what we heard every week in Mission Impossible growing up: Should you or any of the IM Force be caught or killed, the secretary will disavow any knowledge.

It's an uncomfortable truth but an honest one. It doesn't just give a wink to someone saying “it's ok, we know you'll need to do this and we'll forgive you later” it says “if you think this is your only option, you'd damn well better have examined every other one and it better really be because this is not one we'll forgive lightly.” For things that are truly (rather than merely rhetorically) one's only option, who asks for permission?

Anyone who tortures should never do it as a matter of process. He should do it as a last resort knowing that he is potentially sacrificing his life or freedom. That's a nice high bar that I'm comfortable won't get misused. Anything less, I'm not so sure.

Kent Pitman
April 19, 2009 01:22 AM

Checks and Balances

The traditional argument goes that “The Constitution is not a suicide pact.” Fair enough. That's a theory that goes quite a ways back in history, well before its recent formulation in words. But it was always about “above board” (pardon the unfortunate waterboarding pun) action. The problem isn't that the Bush administration wanted to change the policy, the policy is that they did so without informing the public and without subjecting themselves to trial. Having seen the need to do it, they should have done what they needed to and then marched straight to court demanding a trial. In the worst case, they should have told the public what they were doing so that the public could decide.

The claim by Bush echoed claims made by Nixon, who in turn quoted Lincoln when he was interviewed by David Frost: “Actions which otherwise would be unconstitutional, could become lawful if undertaken for the purpose of preserving the Constitution and the Nation.” I don't even propose to debate that here; it might well be right. Let's assume it is. The critical difference between Lincoln and Nixon on this point is that Lincoln's actions were public and subject to scrutiny by the electorate. Nixon was secretive, and so was Bush.

Secrecy matters a great deal because the Constitutional foundation of allowing the Executive this much power is not that we like trusting the Executive with this much power, but rather we understand that some decisions must be made quickly, before the populace or perhaps even Congress could offer advice. And some decisions must be made coherently to avert the effect of Congress tearing our nation limb from limb by each Congressperson going in a different direction. A President must know when he acts on his own that he is still doing so at some risk of being judged harshly, and if he does it in secret, that risk is averted. The essential check on Presidential power is the option to impeach or at least not to re-elect. And even for those who will not be re-elected, we have the option to publicly discuss with new candidates for the office whether they subscribe to such doctrine. We are robbed of all of that when such actions are taken in secret, and we end up making decisions about the Presidency without critical information that would allow us to make good decisions.

Summary

And so I'll close with the point I opened with, that there is a relationship between civil disobedience as it has become and this kind of not-so-civil disobedience. In both cases, the actions have become so comfortable that the high bar of sacrifice has been removed. With that bar removed, the acts in question are too easy to do and too hard to later judge. We must repair that.

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Author's Notes:

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Originally published April 26, 2009 at Open Salon, where I wrote under my own name, Kent Pitman.

Tags (from Open Salon): recourse, impeachment, impeach, informed electorate, re-election, election, democracy, we the people, democratic rule, checks and balances, dick cheney, cheney, george w bush, george bush, bush, frost/nixon, frost, nixon, lincoln, abraham lincoln, 24, time bomb, ticking, torture, ticking time bomb scenario, war, co, conscientious objector, unjust law, civil disobedience, politics