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:

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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.

Supreme Challenge

Just days ago, the United States Supreme Court said that Presidents are Kings, that their actions are largely immune to prosecution for things that would be crimes if done by others.

This is an amazing amount of power, as we are on track to learn once Biden finishes wasting this power doing nothing and leaves us with Trump as his successor.

“This nation was founded on the principle that there are no kings in America. … Each of us is equal before the law. … No one is above the law, not even the President of the United States. With today’s Supreme Court decision on Presidential immunity, that fundamentally changed. … For all practical purposes, today’s decision almost certainly means that there are virtually no limits on what a President can do. This is a fundamentally new principle and it’s a dangerous precedent because the power of the office will no longer be constrained by the Law, even including the Supreme Court of the United States. The only limits will be self-imposed by the President alone.”

—US President Biden
in a July 1, 2024 address

Trump is not just Biden’s adversary, but he is the adversary of free society. He has said so. He has promised to be a dictator on day one, and he means it. He will not waste this newly conjured kingly power doing nothing, but rather undoing what Biden has done for gun safety, gender equality, environment, etc. Alongside all that, he will proceed immediately to do rampant evil, as laid out in detailed published plans that his ultra-conservative allies are calling “Project 2025.”

But Trump does not yet have this superpower—not until we elect him in the fall, if we are foolish enough to do that. And the polls say we are on track to being just that irredeemably foolish.

For a few months, though, such extraordinary power resides in Biden. And what will he do with this power? He rushes to promise us that he will not use it, not even for good, not even to assure that we do not end up with Trump as dictator. Nor to assure that these ridiculous changes by the Court are rolled back.

Note also that We The People are helpless here, glued to our TVs and phones, sifting news and social media for clues about what will happen to us. Give any one of us the power that the Supreme Court gave Biden, and we could do a lot of good, fix a lot of problems, and make the US safer for democracy than Biden is promising to do. We know that because Biden is promising to do nothing with this extraordinary power. That’s a pretty low bar for any one of us to exceed.

Failing to Protect Us

Biden wants to do things in the same old tired way. He wants to use his centrist tools of inaction, treating any real opportunity to make a difference as something not to do. Something too radical. Not his preferred way.

He’d rather labor slowly, expecting consensus with the MAGA crowd when there is none to be had, and he would rather not use the new tool, a tool that Trump and the MAGA-majority Supreme Court are counting on him not to use. They have given him a loaded weapon and are counting on him to deliver it, still loaded, still unused, to his successor, who will not leave it unused, who will in all likelihood use that weapon to assure he does not ever have a successor, that he just stays in power for life.

“At the outset of our nation, it was the character of George Washington, our first President, that defined the Presidency. He believed power was limited, not absolute, and that power always resides with The People. Always. Now, over 200 years later, with today’s Supreme Court decision, once again it will depend on the character of the men and women who hold that Presidency that are going to define the limits of the power of the Presidency because the Law will no longer do it. I know I will respect the limits of the Presidential powers that I have for three and a half years. But any President, including Donald Trump, will now be free to ignore the Law. I concur with Justice Sotomayor’s dissent today. … She said, ‘In every use of official power, the President is now a King above the law. With fear for our democracy, I dissent.’ So should the American people dissent. I dissent. ”

—US President Biden
in a July 1, 2024 address

We are in danger. Biden sees the danger, but does not see that he is part of the planned delivery mechanism for that danger, and that he is willingly and complacently accepting that role.

It's like Biden sees someone coming at him with a club or a knife in a dark alley and decides to use debate to protect himself even as someone is trying to hand him a pistol. All well and good if he's by himself and can take full personal responsibility for that ridiculous choice, but he is charged here with protecting the Constitution and the nation.

We Need Real Action

Strong language, politely delivered, will not protect us here. An offer of centrist consensus-building with the MAGA right will not protect us either. Oh, sure, he can probably find something to collaborate with MAGA about, but it will amount to mere distraction, one of those inconsequential things that still loses us our democracy even as it adds to his list of accomplishments.

Part of the problem is that Biden thinks that the doing of everyday horse trading is his job. At this point, it is not. He doesn't need more legislative successes. If the successes he has are not impressing anyone, adding more will not fix that. He has a lot of experience as a Senator, but at this point, we need him to stop being some kind of Senator in Chief and just be the Commander in Chief.

He needs now to secure democracy. That is his job. And it cannot be done by compromising with the party that seeks to disassemble democracy. It must be done by actually confronting that party, using any and all tools at hand. He thinks he's doing all he can, and maybe he is doing all he can. But he is not doing all that could be done. Inaction at this point is dangerous.

The tool he's been given, this new superpower, may not be Biden's preferred tool, but it IS adequate to the task. He is just choosing not to use it because he doesn’t like the look of it. That alone is sufficient reason for We The People to want a different leader, both now while that power exists and in the next Presidential term if possible.

Coaxing the Genie back into the Bottle

It’s good that Biden knows this new Presidential immunity poses a danger to democracy, but it’s not enough to just know it. He needs to insist that the Court take back that power now, not taking “no” for an answer.

Inaction is insufficient. Fortunately, given this new superpower, better options are available. I’ll offer a hypothetical, just for conversation, but hopefully it will demonstrate that stronger and more effective action is possible, and that it is neither necessary nor advisable to wait until the election.

After all, the election could go very awry. It is reckless to wait and hope it will not. This new reality entitles him to not just suggest but insist it be dealt with now. He can insist that the Supreme Court create ethics rules, term limits, and accountability.

So here is my hypothetical scenario for discussion:

Biden could explain that, in order to preserve Democracy and hold Monarchy at bay, he is ordering poor old Seal Team Six to hunt down and execute all conservative justices on the Supreme Court so that he can install judges with better sense, but that he has stayed execution of that action—for which he has absolute immunity—by 3 weeks, just in case the Court can move (expeditiously, for once) to find a better way to protect the Constitution and the nation with less bloodshed, for example by vacating their recent extraordinarily ill-advised and outright reckless ruling, removing the power of Presidents to take such actions confident of their immunity.

I like to think that such an approach would end with better accountability for Presidents and no one injured. It might seem an extreme way to get there, but it absolutely pales by comparison to what we should expect if Trump is elected.

Supreme Blind Spot

An action with parameters such as I’ve described would also help SCOTUS see the very real danger they’ve created. Fixing the problem would allow a happier outcome for us all, even SCOTUS themselves. They may not realize it, but they are in danger due to their own ruling in ways that they’re not taking seriously enough. They blithely discuss a President authorizing SEAL Team Six to take out political rivals, yet fail to see that they themselves might be such rivals?

It leaves me questioning not just their lack of neutrality, but their competence. It is short-sighted and dangerous, and poor judgment to the point of recklessness. I expect more of Supreme Court Justices.

Biden Isn't The Leader We Need

This is no time for Biden to sit on his hands. It’s a time for bold actions proportional to the danger, actions suddenly well within the scope of Biden’s new powers, and capable of being done with noble purpose, not that the new Supreme Court ruling requires noble purpose for President acts any more. That's part of the problem.

The Court has given Biden this power, so they must intend him to use it, right? Or maybe they just intended the power for Trump and calculated that Biden was too wimpy to use it.

I'd concur with them on that calculation, by the way. He is too wimpy. He's confirmed that by prematurely promising not to use it. That's a self-inflicted wound. He didn't have to say that, for the same reason that Presidents don't say “we won't strike first with atomic weapons.” It's not that we plan to, but we don't want our adversaries relying on our self-restraint.

I don't think Biden wargamed this. I think he just tied his own hands without thinking. Now, if he uses the power, even to help eliminate it, he'll have people fussing at him.

But so be it. I see it as dereliction of duty if he declines to use it. Letting his successor, probably Trump, be the first to explore this unlimited power is terrifying because it will be too late at that point for the public to react in any meaningful way to defend itself. It was reckless even just to say out loud that he wouldn't use the power.

I get why he wanted to. I get why it's uncomfortable. But right now he is the one we have elected to do the uncomfortable things. Better him than Trump. He, at least, is acting in the nation's best interests, not just his own.

Sadly, I’m pretty confident Biden isn't up to it. I think he'll disappoint us. Not just disappoint us, but outright fail us. He sees its use as lacking decorum, even as somehow he sees no lack of decorum in abrogating his responsibility to protect us and leaving us at material risk of a Trump presidency with unlimited power still in full effect.

He thinks by saying these are the stakes that surely no one will elect Trump. That's a dangerous game and one we're all too likely to lose.

Our Weakened Voting System

A partisan SCOTUS has weakened the Voting Rights Act enormously. States bent on voting rights abuse, bolstered by SCOTUS, have indulged gerrymandering and other actions that injure fair voter participation. Trump has raised baseless questions about election integrity. Republican media has echoed him to the point that Republican voters and lawmakers do, too. Fake electors were conjured using illegal schemes. Some have been brought up on charges or sent to jail, but Republican state lawmakers have worked to make it easier to do the same shady things legally this time around. Trump and GOP are mustering armies of lawyers to challenge elections this time around. Election 2024 will be about procedural tricks and challenges. That's a problem.

Telling us to go vote is just not adequate. Assuring us that we have the final say would be laughable if not so serious.

It will be great to rely on voting once a proper democracy is restored, but right now there is no guarantee of the vote’s outcome, or that the outcome won't be challenged, ultimately winding up in the Supreme Court to be overturned by the same folks that brought us the recent Presidential immunity ruling. They have meddled in elections before, and nothing stops them from doing it again, especially now that they have lost all shame.

Immediate action is needed to put things to right, while Biden has the power. He must use that power. Carefully. But he must use it. The safety of the Constitution and the nation demands it.

I doubt he is up to this most important of tasks. But I'll be happy to be surprised.

A Nation of Laws

Our nation needs to be a nation of laws. For everyone. No exceptions.

We already make exceptions for acts that are necessary. We have laws against murder, but we let people off if it’s self defense. We have laws about copyright violation, but we let people off for fair use. But we have not had laws that expressly said that people could walk free merely for who they are, only laws that insist they are doing things for good motive.

Will that scare some Presidents? It’s never scared them in the past. Or maybe the ones that it did scare didn't run for office. Good for them.

Presidents have always had to fear that breaking laws might get them in trouble and yet the nation has functioned well for two and a half centuries. Let Presidents continue to fear the Law. Let them continue to have to justify deviations.

If a President hesitates to start a war or authorize a covert action or explode a weapon of mass destruction, well, that’s good. Hesitation isn’t bad. I want a President to know that breaking the law cannot be a casual decision. It cannot be just another day on the job. They must be prepared to later justify questionable actions.

Having to account is part of the job. It is what makes us a democracy. The President is accountable to The People, not the other way around. Let Presidents assume that We The People understand these are hard decisions, and that we’ll make exceptions for technical breaches of law that are justly done in the best interest of the nation. But let them sweat a bit. That’s healthy.

By contrast, this newly conjured law, brought into existence out of nowhere Monday by a rogue Court, not Congress, that says Presidents must not be made to sweat, must not be asked to account, is not healthy.

Some have advanced the fairytale notion that voting is how Presidents should be called to account. But it is not a crazy hypothetical to think that a President might try to stay illegally in power. We’ve seen evidence that Trump might do this. He’s said aloud that it’s something he thought about.

And, anyway, there is a lot of damage that can be done in the four years between elections, if we're lucky enough to ever have them again after a President decides he wants to be a dictator. So elections are not an appropriate check. We need better.

Let Presidents sweat. We’ll be safer for it.

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