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Yes, it's structural

By Daniel M. Ryan
web posted July 11, 2011

Norman Rockwell - Freedom of SpeechJames Altucher, a successful serial entrepreneur and venture capitalist, came up with what he thought was a neat idea for the July 4th holiday. Seemingly convinced that a representative Republic was decided upon because communications technology made direct democracy impractical, he believes that the Internet now makes it feasible to eliminate the legislature entirely and replace it with a Net-based direct democracy.  Mr. Altucher is like a person who buys an old-fashioned house with many small rooms and decides that the architect didn't know what he was doing because he was born a long time ago. Just knock down a few of those walls and open up the house a bit, making the rooms larger like a newer model. Sounds like a neat idea, until the homeowner realizes that he or she has knocked down a wall that's structural. That desire for a more modern home makes the house far more vulnerable to a collapse, necessitating outright destruction and replacement. For reasons that Mr. Altucher hasn't considered, Congress is a structural wall that had better be left in place even if a breakthrough in electronic telepathy comes along.

Mr. Altucher resembles a kind of person that makes engineers either wince or grin cynically: a rich person who thinks that a huge bank account grants him expertise outside of his specialty. Like the wealthy person buying an old Victorian home and deciding that the walls can be messed with, Mr. Altucher only sees part of the picture and thinks it's the whole. His chief mistake is assuming that Congress is merely a place to originate and vote on bills. Consequently, he believes that replacing a bicameral legislature with a necessarily unicameral electorate, passing bills by referendum, won't make any difference except in making the system more democratic. The fact that the Senate has special duties that the House doesn't have, escapes him.

One of those duties is to advise and consent to treaties. A system with an Internet-based referendum schema, with a Digg-like apparatus to decide which bills are worthy of being voted upon, does take care of the consent. But what about the advice? How is it possible for a body of approximately 212 million eligible voters to give advice? Polls? But what gets left out of polls? Could any advice, other than pre-fab choices on a questionnaire, get through at all?

Like many people who unconsciously believe in the imperial Presidency, Mr. Altucher sees the Senate as merely a thumbs-up or thumbs-down body. He assumes that the President does not, and should not, listen to Senators who oppose a certain treaty or support it with qualifications. It is true that there have been stubborn Presidents who see the Senate as nothing more than an obstacle rather than a place of sober second thought. But why should they be catered to by enshrining their stubbornness through getting rid of the Senate? Why should a President who's more than take-it-or-leave-it be treated as if he or she were a deviant?

That there advice-and-consent wall, it's structural. It holds up the separation of powers, designed to check the Executive body's tendency towards supremacy. Had the Senate been replaced by a unicameral electorate, it's a certainty that the only advice the President will ever seek is from his or her cronies and subordinates. Future Presidents will be more inclined to taking advice that they want to hear, which is precisely what the independent Senate is supposed to check in matters of treaty.

Congress has the power to declare war. Under Mr. Altucher's system, wars would be declared by referendum. There are arguments to be made for such a system: it ensures that any war will be a popular one; any war which doesn't have the active support of a majority of the public will not be authorized. The chief argument against such an arrangement is the necessity of the President to take up demagogy to ensure support for the wars he wants. Remember the Maine?

That there check on popular fevers is structural. It ensures that laws are not passed in the heat of mob rule. It's there to thwart any President who thinks that he can do whatever he pleases provided he stays on the good side of the polls. It prevents a de facto elected dictatorship. 

Curiously, given his predilection for the unpopular chattering-class worldview, Mr. Altucher also forgets about the Bill of Rights. In a system of direct democracy like he proposes, "Congress" is necessarily replaced by "the people." What else can the electorate be? Observe that such a change changes the First Amendment into, "The people shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." Read it carefully. See the sematical difficulty? If you do, give the Ninth and the Tenth Amendments a whirl.

It can be overcome by changing "the people" to "the individual" or "individuals," depending upon context. But, that change opens up a whole new can of worms. It means that the United States is no longer a representative republic where the people are sovereign. Instead, the U.S. would be a limited Republic where the people's sovereignty is explicitly checked by individual rights. The rights of the individual would be a hard constraint upon the sovereignty of the people, just as a written Constitution in a monarchical system is a hard constraint on the power of the Sovereign. The people's sovereignty would be clipped, to the point where disgruntled voters could credibly claim that the people are no longer sovereign. Boy, would the Supreme Court's caseload increase.

The job of Supreme Justice would be made harder in another way. In the present system, a judge that strikes down a law can say that the people were misled by an overly ambitious Congress. In this way, a justice can act as a mandatory of the people when striking down a bad law. But what if the people themselves are responsible for the bad law, as they would be under Mr. Altucher's system? How would that change the attitude of the Supreme Court justices? How would it change the Supreme Court once justices have to be confirmed by the people directly…or be appointed by the President solely?

That there house, it's not the same as yours. It's a different design entirely, even though it looks like your could be made the same by knocking down a few walls.

Under such a system, "great" Presidents would necessarily be demagogues. As long as they stayed on the good side of the polls, they could do what they wanted. That potential for abuse brings up the question of impeachment. Under the current system, the House decides whether or not to impeach. A trial is then scheduled for the Senate, which decides whether or not to convict. Should Congress be collapsed into the unicameral electorate, there's no venue for a trial. No chamber of sober second thought where the President can defend him- or herself or fail to do so. How could a trial be held in public, and be adjudged upon by exactly the same body from which the indictment came? It's as if criminal trial were to be decided by the same grand jury that handed down an indictment.

In the matter of impeachment, Mr. Altucher's direct-democracy gizmo makes it both too easy and too hard to impeach. Any President that doesn't cleave closely to the polls runs the risk of being impeached simply for his or her policies. That Supreme Court docket is getting more and more weight put on it. As for real high crimes and misdemeanors, what President who has the knack of staying on the good side of the mob would be vulnerable to an article of impeachment?

That there modern-looking house you want, it looks an awful lot like the imperial Presidency. If that's what you want, you might as well knock down the house you have because it's going to need a new foundation and frame. Better make sure you have a good idea of how much more load the Supreme Court wall is going to have to hold. Based upon what you've told me, the wall's going to bear a lot more than what you seem to think.

Ideas like Mr. Altucher's come easily to twenty year olds. I should know, because I heard the exact same idea in 1991 at the age of twenty-one. When I was twenty-one, it sounded like a grand idea. Using BBSs to implement direct democracy sounded neat-o and progressive. Back then, I knew nothing about the history of Tammany Hall. I would have been too naïve to realize that any constraints upon Tammany Hall's proven record of bribing whole swaths of the electorate cheaply would be repealable by that same electorate. Unless the sovereignty of the people was to be limited further, that is.

That same idea looks a lot less neat-o now that I have umpteen years of watching politics under my belt. I'm experienced enough to know better.

Addendum: Here's an example of how to game Mr. Altucher's system. Lobby hugely for a law that says "The United States shall not be disparaged." Use the soft sell for it when patriotic feeling is swelled. Say that this law is little more than a resolution, like the first sentence of the fourth section of the Fourteenth Amendment. The soft sell would be used to soften up those who think the law would breach the First Amendment. (It will, but I'm getting ahead of myself.)
Then, once passed, go out of your way to show mildness and open-mindedness. Speak out against prosecutions under that law, to the point where the hot-heads are calling you a traitor or sellout. Make a point of telling everyone what the hot-heads now think of you. If necessary, appear as an expert witness for the defense in a high-profile trial where someone is charged under that law. Keep being mild-mannered until the time is right, such as during war. The First Amendment has bent a lot during wartime, and the Supreme Court has okayed those bends.

Once the clime is right, it's time to turn the screw. This time, side with the prosecution in a case which features an alleged disparagement that "even reasonable Americans can't tolerate." Court as many former prosecutors in the mainstream media that you can; get as many as you can on your side. Use your prior reputation in doing so. By the time you get the screwdriver out, the Supreme Court will have begun adjusting to the idea that they striking down a law is directly checking the people's sovereignty. They being dicier than previously is a necessary enabler. If the clime is right, "The United States shall not be disparaged" will grow teeth. ESR

Daniel M. Ryan is an occasional contributor to The Gold Standard Now and has penned fourteen works of goldbug fiction. He can be reached at danielmryan@primus.ca.

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