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The National Referendum Act

By Bruce Walker
web posted January 13, 2003

In 1789, representatives of the American government decided that their second plan for an American government was not working as well as it should. Representatives gathered in Philadelphia and with George Washington presiding, Benjamin Franklin guiding, and James Madison leading, these representatives - who had been sent by their states only to improve the old system - instead proposed an entirely new structure of government.

What these men did was, technically speaking, illegal. They clearly and intentionally exceeded their authority. They acted not as representatives of their government, but as individuals who had helped make the Revolution and who had helped create the first American government, the Continental Congress, and its successor, the Articles of Confederation.

How could these men deal so cavalierly with the process of presenting a third form of government to our new nation in less than a dozen years? Because these men did not consider the structure of government nearly as important as the purposes of government. These purposes were articulated clearly in the primary document of American government, our Declaration of Independence, which noted certain self-evident truths, which were:

"That all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty and the pursuit of happiness; that to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed; that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles and organizing its power in such form as to them shall seem most likely to effect their happiness and safety."

These words in the Declaration of Independence describe the political miracle we call "America" but that document did not invent the principles of limited government. The colonists - so often maligned today by the snippy, politically correct professors of forged history - had already created small polities in places like Pennsylvania, Rhode Island, Georgia and Connecticut which proved such principles could work in the real world.

The primary question after 1776 was this: which overriding system would be the optimum means of combining these small successes into a greater whole? Was it the Continental Congress, the Articles of Confederation or the Constitution? Everyone at Philadelphia in 1776 and in 1789 understood that the perfect is the enemy of the good: any national government would have problems in practice.

This surely proved true with the Constitution. We tend to forget that freedom of speech is not protected in the Constitution, but by the first of those ten amendments which we call the Bill of Rights. Even these amendments were almost immediately ignored; the infamous Alien & Sedition Acts, which blatantly violated First Amendment freedoms, were enacted into law after the Bill of Rights was added to the Constitution and its provisions were enforced by the Supreme Court.

The Eleventh Amendment was intended to protect sovereign states from private litigation in federal courts, and that proper changing of the Constitution has been blithely ignored for a long time. Indeed, the whole process of amending the Constitution has become high comedy. The Civil Rights Amendments, noble in intention, were not effective until congressional, executive, and judicial actions - critically supported by social, economic and moral pressures - allowed blacks to vote, to use common public facilities, and to exercise the other rights of free men.

Many amendments are housekeeping measures related to modest subjects like lame duck congresses, poll taxes, and electoral votes for the District of Columbia. Other amendments, like direct election of senators, have trivialized important concepts in the Constitution. The intention of granting state governments - not state populations - a veto over federal policy was very much at the heart of the Great Compromise (depriving any state of its equal representation in the Senate is the only matter which the Constitution itself permanently prohibits changing by amendment.)

The general irrelevance of the formal amendment process in Article V of the Constitution does not mean that the Constitution has not been amended a great deal; it means instead that the amendment of the Constitution has come in other ways, primarily through federal judicial amendments and secondarily by presidential amendment by executive order and similar devices.

The present "interpreted" Constitution bears only faint resemblance to the document presented to the people of the nation more than two hundred years ago. The vast majority of changes have been bad, not good changes, but there is a more serious problem than the quality of the changes themselves. The very right to change our basic law - the structure upon which statutes, court decisions, administrative actions, taxes and appropriations are justified - has been taken from the people and granted to lawyers, judges, professors and pundits.

Almost inevitably, the result has been a disconnect between the fundamental principles of the Declaration of Independence and its subordinate instrument to implement those principles, the Constitution of the United States. How often do jurists now rule against "the consent of the governed" and in favor of their own perspectives of good and bad government?

The Declaration of Independence is the basic law or "constitution" of the Constitution, and just as statutes and other federal actions may not properly violate the Constitution, the Constitution may not properly violate the Declaration of Independence. But what can be done to return sovereignty to the people?

The core of present problems is one of erosion and not seismic shock. The center of the solution to present problems should likewise be to create a system through which the right to control the Constitution can gradually be returned to the governed, and the most straightforward way to do this would be for the President to announce that he is placing in the power of the voters the right to interpret what the Constitution means by passing a National Referendum Act.

This federal statute would create a process for doing what the Supreme Court and other jurists do today: decide what should mediate between the text of the Constitution and its amendments and the daily operations of government in America. This federal statute would also allow the people directly to enact supra-legislative proposals (laws which supercede other federal statutes and regulations.) At first blush, this might frighten conservatives - we, after all, rightly note that we live in a republic and not a democracy. This fear is misplaced.

The Contract With America that Newt Gingrich brilliantly proposed to America in 1994 was clear; the intention of each item was obvious; and the commitment of House Republicans to vote on each measure was absolute. Moreover, though liberals are loath to acknowledge it, everything in the Contract With America was done: House Republicans called each item for a vote of the House exactly as promised.

Why have liberals not come up with an equally successful populist list of proposals? Because they have no agenda, no ideas, no sentiments, which can be incorporated into text. They rely exclusively upon confusion (resolved by politically suitable "experts") and rage (which sputters poorly in written words, but flowers in noise and images). Even the pseudo-democracy of public opinion polls is hopelessly skewed by the calculated trickery of questions asked.

Consider also the contempt which liberals express toward the processes of initiative petition, referendum, direct election of judges, term limits and recall of elected officials. If liberals cannot even fashion winning legislative proposals which panders to the masses in liberal states like Oregon, what chance have they of convincing the majority of Americans on fundamental issues about what the Constitution should mean?

The language of this novel statute should create reasonable hurdles before an issue is presented to the people for a vote, but many states have addressed just such problems before and solved them. Questions could be referred by resolution of each House of Congress or by national petition or by resolution of a majority of state legislatures (or some other sensible threshold).

Popular approval could also require more than just a simple majority. Approval could require sixty percent of the vote or a national majority with a majority in most of the states or a simple majority of all registered voters. People should feel comfortable that popular approval reflected a meaningful majority approaching genuine consensus - much like the original process of amendment in Article V described.

There are only two ways that liberals could effectively fight this proposal. Liberals could rely upon those "impartial" referees of the political system, our judges. Conservatives must attack this issue directly, and note that judges have a compelling vested interest in remaining unaccountable aristocrats, and by noting that judges, too, derive their power from a government founded upon the consent of the governed.

We should not deny that this law is extra-constitutional, but emphatically reject the argument that it is unconstitutional. The Constitution itself was approved by the people and their local representatives. There was nothing in the Articles of Confederation which permitted this procedure - it was simply done, and then considered legal. Pointedly, even Anti-Federalists like Thomas Jefferson accepted and defended it when it was adopted according to the rules of adoption in Article VII of the Constitution.

The second line of defense would be obstruction in Congress by filibusters, legislative maneuvering and the defection on nominal Republican "moderates." But like term limits, this proposal could provide a powerful political mallet with which to pound those who currently hide behind the black skirts of Supreme Court justices.

If President Bush defined the National Referendum Act in simple language and argued for its passage, then it would be the grim task of liberals to go back to their constituents and tell them ordinary people cannot be rusted with the power to determine what the Constitution means. That is effectively like asking people to vote for politicians who consider them incompetent, unethical and irrational.

The question is not whether this argument fails politically, but how long the patricians preach down to us plebeian before realizing that we do not like condescension. This proposal and its adoption into law would not only restore the Constitution to its original and better meaning, but it would also extract a political cost to those who have gained so much by smug reliance on actual rule by the unelected and unaccountable over the people.

Bruce Walker is a senior writer with Enter Stage Right. He is also a frequent contributor to The Pragmatist and The Common Conservative.

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