Recently by Terry Hulsey: Ron Paul, After the Convention
Democracy in America has failed. The Framers would not have been surprised.
The central idea of the American Experiment is that our several states have united to form a republic of strictly limited federal power, not a democracy. Without understanding this kernel idea, that the founders repudiated democracy and consciously labored to restrain it, there simply no possibility of understanding the meaning of America. The most concise statement of this idea comes from Madison's Federalist 10:
Hence it is that democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and in general have been as short in their lives as they have been violent in their deaths…. A republic, by which I mean a government in which a scheme of representation takes place, opens a different prospect and promises the cure for which we are seeking. James Madison, Federalist Paper #10
This article is the fourth and last in a series that seeks Madison's "cure" for the form of democracy that was feared as much as any tyranny by virtually all of the Framers of our republic. Previously we asked:
We found the essential defect to be the exaltation of a form of democracy alien to the Constitution. After considering more than a dozen serious proposals to remedy this defect, we found that all had shortcomings, but we also saw that the task before us was clear. Madison's original genius was to take the Enlightenment project of applying science to the problems of society to discover federalism, the only principle known so far to successfully limit the scope of democracy while preserving self-rule in a mass society. Our task was to find a way to replace unlimited democracy, as currently institutionalized, by restoring Madison's original principle of federalism.
After considering the apparatus of the state that confronts any remedy, we found that picking up a musket like the Concord Minutemen was least likely to succeed: Over the course of more than two centuries the state had erected barriers that were most formidable in that they worked unconsciously in the mass of its subjects. However, we saw that we were not without resource, even here. The French political philosopher La Boétie had discovered the nonviolent principle of simply withdrawing support for the state. The refined task then was to come up with a simple and practical tool that applied La Boétie's nonviolent principle.
We found that the tool with the best prospect of success was conditional campaigning, suggested by a colleague and realized in practice at the website ThePoint.com. It overcomes the inertia of mobilizing a mass of citizens in any opposition to a state possessed of the vast resources of its very subjects, or for our ultimate purpose, of mobilizing their peaceful withdrawal from overweening state power, by rewarding their inertia in a clever way. The demoralizing, yet perfectly reasonable complaint of "Why waste my vote?" or "Why waste my time and money?" is silenced: No one need act or invest until a critical mass, a like-minded quorum, is reached; and the enlistment of this conditional support is secured by an effort no greater than a few clicks of a mouse.
The specific conditional campaign that will bridle democracy, that will restore federalism in Madison's sense, is one that mobilizes support for the passage of the Twenty-Eighth Amendment (below) to randomize the election of Congressmen and Senators, and indirectly, the President of the United States.
We answer objections to this proposal.
Objection 1. The Amendment will not provide more capable candidates than the current system, and certainly will not provide more democratically elected ones. Since the best candidates and the less capable candidates will have a "statistically equal chance of selection," the best will assume office only by pure luck. Admittedly, the current system does not provide a philosopher king, but at least the victor has the approval of the majority of voters, who therefore have no cause to show unrest when political choices don't suit them. Since the will of the people would be expressed entirely as a matter of chance, the Amendment would constantly invite possibly violent discontent.
Objection 2. The Amendment does not dampen the presumed ill of democracy — it inflames its worst aspect. Every two years 435 x 300, or 130,500 candidates, would stand for national office — and that's not counting the third of the Senate that stands for office every two years. In the next federal election that would add 33 x 100, or 3,300 candidates — 133,800 in all!
Objection 3. The Amendment will effectively annihilate political parties, which are the only way that the public has of knowing the political outlook of candidates. Without the vetting and approval of the party system, there would be no way of knowing how an elected official will vote on matters of national importance. In Congress, with no party system to enforce fidelity to a published platform of ideas, there would be ceaseless wrangling and nothing would be accomplished. No national agenda would exist, since there would be no party to publish and organize one.
Objection 4. The Amendment will place the election of the President of the greatest nation on earth in the hands of (33 x 99) + (17 x 100) or 4,967 randomly selected people without party affiliation, ignoring the will of the people. Nothing would prevent these Electors from choosing a completely unknown person, whose background and qualifications would lack not only the examination of the party system but also the scrutiny of public campaigning. Any President elected in this way would become the laughingstock of nations.
Objection 5. The Amendment would replace the current system of elections, however flawed, with a biennial carnival of chance. The character of those presenting themselves to this spectacle would be that of desperados with no necessary knowledge of law, statecraft, or economics.
Objection 6. Since there are two ways to propose an Amendment — a two-thirds vote of both houses of Congress or a call for a national convention by two-thirds of the state legislatures — and since Congress is unlikely to vote to destroy its method of access to power, the process of adopting the Amendment would produce an open national convention, exposing the nation to all of the ills of that untried process. The Amendment's clause to restrict the scope of any national convention to this single Amendment is effectively demanding the enactment of a critical part of its text merely on the basis of considering it.
On the contrary, the Constitution says not one word about democracy, not one word about political parties, and it leaves it to the states to determine the qualifications of its Electors and the details of elections not specifically enumerated in its text.
I answer that, a great mythology has been erected to exalt the power of each voter, when it should be self-evident that a single vote is meaningless in determining the outcome of a national election. A complementary mythology has been erected which supposes that there exists one person who is the best representative of his electorate in national elections. But any national election is a sampling of the desires of a mass of voters at some moment, influenced by unpredictable local and world events, by unforeseen turns in the economy, by rumors and fears, by some fashion of catchwords that passes for popular ideas. To assume that a single sampling at a single time in the capricious national popular mood best represents the voters is a far greater idolatry of chance than a method using a broad sampling, over a longer time, by the mediation of several indirect bodies of voters.
Reply to Objection 1. To admit a distinction between capable federal elective candidates and democratically elected ones is to admit the force of this Amendment. For what is meant by "capable" in such a system? There is the capability of a shipbuilder in building ships, and the capability of the mason in constructing a house; but there is no capability whatsoever either required by law or insisted upon by voters, even when a clearly more professional choice is set before them. Presidents have been drawn from the ranks of soldiers, school teachers, ranchers, tailors, and peanut farmers; Senators have been elected from the ranks of veterinarians, musicians, sports figures, chemists, radio talk show hosts, firefighters, ski instructors, security guards, coroners, morticians, and tugboat captains; and the variety among Representatives is too prolific and spectacular to mention. But nowhere among this wild variety is there a record of anyone elected after campaigning as a philosopher-king; even if it were desirable, the current institution architectonically forbids it. It is clear that the sole "capability" of anyone elected under such a system is his capability of being elected, without insistence upon any objective merit of vocation or experience. The pretense of the current system in expressing "the will of the people" is founded purely upon elective capability, which proves that its "will of the people" is a tautologous ephemera more evanescent than the fiction of "society." The "will of the people" of the current American democracy is nothing more than a talisman that levitates quite ordinary people to the heights of public office. It is becoming increasingly obvious to a restive populace that no one of real ability has a chance of winning the game, and that the pretense of fine-tuning employment, interest, and money — frenetically parsing each fluctuation — by a mass democratic regime for the benefit of its citizens is a machiavellian sham.
Reply to Objection 2. How will the nation's bakers manage all those loaves of bread? At any given time there must be millions upon millions of them for sale! But these millions of loaves are of no interest at all to the one man buying a few loaves from the local market: His interest is on the shelf before him, where he makes careful comparisons and buys exactly what he needs. This is exactly the level of focus encouraged by this Amendment, and by the Framers, who sought to limit the scope of democracy to the local level, where each town hall voter knew each candidate not by the cleverly posed advertisement but by the firmness of his handshake and the soundness of his character. Since the several states control the election process, there is nothing to stop them from dividing each 300-man district into smaller units of 100, 30, or 10 men, if that is more convenient. Indeed, such a subdivision would likely encourage greater familiarity with the candidates, and greater local participation.
Reply to Objection 3. A political party is nothing more than a longstanding faction, despised by the Framers. Various longstanding factions offer their candidates for national office by a haphazard process based on a single criterion: Electability. Of course great abilities are claimed for each candidate, and are advertised with studied melodrama. But any virtues of an individual candidate must be subservient to the criterion of electability because every faction imagines that once in power their loftier goals can be realized, and that nothing can be accomplished while out of power. A political party can never tolerate a disinterested comparison of the abilities of the candidates, for the triumph of the superior candidate of the opposing party always undermines its vested interests as a party. Acrimonious politicking instead of sober deliberation is thus institutionalized by the party system.
To say that no national agenda would exist is to say that a large deliberative group in a republic cannot arrive at purposeful action without the myth-making, propaganda, and caricaturing of the current longstanding factions. And if the term "national agenda" signifies a centrally-directed secular crusade at the expense of a public sluiced at every vein by taxation, then we concede to the objection: Yes, the annihilation of political parties would be a blessing devoutly to be wished.
Reply to Objection 4. The 4,967 people serving as Electors of the President will be drawn from those carefully selected at the local level, drawn from the pool of would-be Senators. It must be supposed that this number will more sober in their deliberations than a fickle electorate composed of a mass whose single vote is meaningless in itself. It should not be forgotten that the system of Electors is still currently the law of the land, and no novelty. The "will of the people" and "party system" are fictions previously disposed of.
Reply to Objection 5. As explained above, it is the current system which is best characterized as "a carnival of chance" and a kind of idolatry. Because candidates will be selected at the level best suited to the consideration of their character, i.e., at the local level, it is more likely that the Amendment will produce officials of wisdom, sobriety, and true merit, rather than media poseurs whose primary talent is the knack of electability. By inference the objection presents Richard Nixon, Jimmy Carter, George W. Bush, and Barack Obama as products of its system who supposedly are not the laughingstock of nations. Which system is more likely to thwart the wiles of "cunning, ambitious, and unprincipled men"?
Reply to Objection 6. The Eighteenth, ratified in 1919, as well as the Twentieth and all subsequent Amendments have stipulated seven year terms for their ratification. Clearly there is established precedent for an Amendment to define the terms of its adoption.
The 28th Amendment
- Each Congressional district existing at the time of this enactment must at the next biennial election submit to the President of the Senate the names of 300 citizens willing to serve as United States Representatives; and each state, at its next Senatorial election must submit the names of 100 citizens willing to serve as United States Senators. The qualifications and manner of providing each list of 300 Representative candidates and 100 Senatorial candidates are to be determined by the states respectively, with the exceptions that no particular political party affiliation shall be considered a qualification, and that all those qualified who present themselves for selection must have, methodologically, a statistically equal chance of selection.
- Within a week of the receipt of these names, the President of the Senate must choose entirely at random one name from among those 300 for service in each Congressional district, and choose entirely at random one name from among those 100 for service in the Senate. Within one week of the pronouncement by the President of the Senate of its random choice for each seat, the Supreme Court shall validate solely the randomness of each choice made by the President of the Senate and no other merit. For any district not so validated, the President of the Senate shall draw again from the 300 Representative names and 100 Senate names already in its possession until randomness is validated, or until three attempts have been made, after which point a federal employee, chosen at random by the President of the Senate and without Supreme Court validation, and earning not more than one-twentieth the official salary of the United States President, shall while blindfolded draw one name from a basket containing the 300 names, or the 100 names, according to which seat’s randomness is contested, and that choice shall assume office.
- Challenges to the randomness of the names as submitted by each state shall not be heard at the federal level, nor shall any such challenge impugn any name once received by the President of the Senate. Redress shall be found solely within the state so challenged.
- This method of Congressional and Senatorial election shall prevail after the first election, as prescribed above. The phrase "by the People" of Article I, Section 2 is hereby amended to read "randomly by the people"; and the phrase "by the people" of the 17th Amendment is hereby amended to read "randomly by the people".
- In those years when the election of Senatorial candidates shall coincide with the quadrennial election of the United States President, the unchosen remnant of Senatorial candidates, that is, 99 from each state holding a Senatorial election, shall form the Electors for those states. Those states not holding a Senatorial election at the quadrennial election shall nonetheless submit 100 names, as prescribed above, for the purpose of serving as Electors. They shall convene in each of the several states at a time and place appointed by the legislatures of those states, but no later than one week after the random selection of their one state Senator, as prescribed above. At that time they shall perform the duties of Electors set forth in this Constitution, as amended.
- Article II, Section 1, Clause 2 beginning “Each State shall appoint…” is hereby amended to read "No person holding an office of trust or profit under the United States, shall be appointed an Elector."
- Any national convention called for the passage of this Amendment shall limit its scope to this single Amendment. The applications of the several states for such a convention may be differently worded, but must be limited to the consideration of matters set forth above. Passage must be accomplished by January 1, 2020, after which time the amendment process must begin anew.
Terry Hulsey [send him mail] is a writer living in Fort Worth, Texas.