Our Decrepit Constitution: 3. The Silver Bullet
On December 12, 2000, the US Supreme Court decided that George W. Bush would be president of the United States. The Court acknowledged that the Constitution left the election of the president to the people, but decided nevertheless to intervene, something it had never done before.
The Constitution furnishes almost no guidelines for the election of the president, one of the most important political undertakings of the government. The framers intended for the president to be chosen indirectly, by electors elected by the people, not by the people themselves. The framers intended for the electors to meet after the popular vote was taken. Only then would the electors decided the actual winner of the election.
As usual, however, the framers omitted the process to be followed in case of dispute. In particular, they did not specify that the Supreme Court, an unelected body of judges who held lifetime appointments, should not determine the outcomes of elections. In 2000 this led to the election of a president by five such judges after 200 million citizens had cast their votes in the general election. Furthermore, all five of these judges had affiliations to the Republican party, whose candidate they chose as the winner. These judges showed no reluctance to support their party's candidate, despite the express intent of the framers to lift the Supreme Court justices above the fray of electoral politics by giving them lifetime tenure.
Over the years, the citizens of the US became concerned about the influence of corporations and large political contributions. The Congress, responding to the will of the people, passed laws that regulated contributions from corporations. In Citizens United v FEC, the Supreme Court ruled that the concerns of the people were groundless. The Court ruled that corporations were nothing more than associations of individuals and as such were entitled to the same rights as individuals under the First Amendment.
This ruling supported the Court's belief that the rich had more rights to express their opinions, since it is obvious to everyone that the rich can buy more speech than the poor. The Court delared that there cannot be too much speech. Through this ruling, the court overruled the people of the United States, whose common sense tells them that corporations spending vast amounts of money wield inordinate influence over politicians and their decisions.
In Citizens United, the Court once again found a way to support the Republican party. They voted five to four along party lines to permit unlimited corporate contributions. Many groups have been proposed that an amendment to the constitution would resolve this issue. The impartiality of the supreme court is fundamental to the design of the Constitution. The framers designed the Constitution to operate by checks and balances. Without an unbiased Supreme Court, their design fails.
The Constitution conceals this flaw and many others. The framers intended the Constitution to be amendable, yet only 17 amendments have been enacted, other than the Bill of Rights, in over 200 years. There are several reasons for this failure of the original design.
- The United States has many more states than it had originally. When there were only 13 states, the number of legislatures required to ratify an amendment was 10. Today, when ratification requires the approval of 38 state legislatures, the amendment process should be at least 3 1/2 times as difficult.
- The population of the United States is more than 100 times what it was in 1787. Persuading a number of people of the necessity of a change increases with the number of people who must be convinced. The people do not directly vote to ratify amendments, but they do vote for the legislators who must make the decision.
- Both the larger number of states and the larger population make the amendment process more time-consuming.
- The increase in time and energy, and above all money, that can be spent to defeat an amendment makes it unlikely that an issue can achieve a 3/4 approval. Money can be spent liberally to confuse the issues. Confusion will make the amendment less likely to pass.
- The vast amount of money that must be raised to ratify an amendment will make it difficult to pass a complex amendment, such as one that abolishes the Electoral College.
Numerous amendments have been proposed to overturn the Citizens United decision. The opponents of this decision correctly view it as a threat to democracy itself. All of these amendments, however, share a common flaw. These amendments seek to correct a single decision of the Supreme Court, but history has shown that the enemies of democracy will soon find another way to suppress the rights of the people. Given the impediments blocking any Constitutional Amendment and the large errors and oversights in the Constitution itself, there is only one solution. The amendment process itself, as described in Article V of the Constitution, must be changed.
The change required is simple. The Constitution must be amended by referendum and initiative, using the same process as already exists in many states. Such an amendment, known as the National Initiative, has already been proposed.
The existing initiative and referendum laws were proposed during the Progressive Era (1890 – 1930). At that time, people were concerned that big corporations were controlling state legislatures. Corporations are once again threatening our democracy. We need the National Initiative, the Silver Bullet that can rectify many of the Constitutions problems and return the government to its rightful owners, the People.