This column originally appeared in the Williston Observer on October 29, 2009.
Thankfully, we're not a democracy
"We live in a democracy!" is an often-heard cry from those who feel unheard in government. The statement, however, has a basic inaccuracy, an inaccuracy that could be described as simple semantics, but certainly is not.
The United States is not a democracy, and we should be thankful for that. What we are, instead, is a representative democracy. That one word makes all the difference in the world.
A democracy, in its purest form, is rule by the people. Every issue of importance is put to the people for a vote, and the majority rules. The system sounds good - everyone has an equal vote, an equal voice, and the will of the people is the will of the majority.
There are, however, many difficulties with such a system, a couple of which I will detail.
The first is one of practicality. It is impractical to put every issue to the people in any but the smallest of societies. It's often been said that the closest we, as modern Americans, come to pure democracy is that staple of March in Vermont, the town meeting.
While I agree that the town meeting is an important institution, it is notable that even small towns have learned that the town meeting is only effective as a method of governance to a specific point. Most obviously, town meetings are only held once per year. The rest of the year, the town is invariably run by representatives. More to the point, most people simply don't want to be involved in the everyday decision-making of the town.
Western society has a rich history, dating a thousand years, of delegating authority. The authority must be kept in check, however, and in the United States, we have devised institutions to do that. Elections are the most basic check, but we also have term limits, checks and balances, and separation of powers.
So basic is the shift from democracy to representative democracy that we see it at every level of government. Not only in the U.S. Congress, but also in the Vermont Legislature, in the Selectboard, even to the FAP Advisory Council in our schools. Representative democracy is all around us, and unlike pure democracy, it works.
Another major problem with a pure democracy is "majority rule". Most of the time, majority rule works just fine. When we are selecting a representative, the candidate with the most votes should be the winner. If the question of a roundabout on Route 2 is put to a vote, then the majority should carry the question.
But some things should not be subject to majority rule - basic human rights, for example. The ability of a person to speak his mind or to worship as she wishes should not be subject to a vote. If a people voted to institute slavery, the fact that a majority voted for it would make it no less a violation of human rights.
The Bill of Rights in the U.S. Constitution and the similar Declaration of Rights in the Vermont Constitution lay out for all to see those principles that we hold dear and which are not subject to a vote. "The people have a right to freedom of speech," the Vermont Constitution says. There is no exception that reads "unless the people of the state vote to remove that freedom from any person or group."
This entire discussion came to mind because of a conversation I've been having with someone who is unsatisfied with our current national government. He advocates the abolition of the Congress and its replacement with the votes of the people. The idea sounds great in sound-bite format: "Your voice will be heard! Your vote will really count! Take the influence of lobbyists out of the government!"
These slogans are rooted in democratic principles, and might be true in a pure democracy. As noted above, though, it is impractical. We do not all want to be part-time politicians. We want to elect people to do that for us.
Democracy is a great idea in principle but a lousy one in practice. What we have done is taken that principle and tweaked the system to make it work for each of our levels of government. It can be improved, no doubt about that; but our attempts to improve the system should not include throwing it out and replacing it with something we know will not work.
Thursday, October 29, 2009
Thursday, October 15, 2009
Confronting Judicial Uncertainties
This column originally appeared in the Williston Observer on October 15, 2009.
Confronting Judicial Uncertainties
Our justice system is one of the best in the world. It exemplifies many of our basic beliefs: that one is innocent until proved guilty; the importance of due process; the concept of equal justice.
As with any human institution, our justice system is not perfect. Over time, a long series of Supreme Court decisions have ensured that our principles are applied.
One of the most famous, 1966's Miranda v Arizona, is the source of the Miranda Warning, which begins "You have the right to remain silent..." The decision in this case ensures that suspects are at least aware of their rights when they talk to police. Whether the suspects take the advice the Miranda Warning gives them is another story entirely.
Another famous case is 1963's Gideon v Wainwright, immortalized in the book Gideon's Trumpet, and the TV movie of the same name. This case ensured that all criminal defendants, even those not accused of a capital crime, must be provided a lawyer. One of my earliest memories of our justice system is watching Henry Fonda, playing Clarence Gideon, writing a motion to the Supreme Court by hand.
These cases, both decided before I was even born, stay with us today. They are applied in interrogation rooms and courtrooms on a daily basis. The police and prosecutors constantly push the boundaries of these and other important decisions, and the courts are constantly refining those boundaries for the next set of cases.
But even with all these defined boundaries, these legal limits, there still come times when we have to take serious looks at our system. The mere fact that the law and the processes to apply the law need refinement shows that what we have is not yet perfect.
As I watch and read news stories about national and local court cases, I grapple with these conflicts constantly. I'll take two examples to show what I mean.
First is the grand and divisive issue of the death penalty. Vermont, among other states, has decided that the death penalty is not a punishment we want to use. As we've seen in many cases, famous and infamous, those on death row can be placed there in error. The problem with the death penalty is its finality. Once the punishment is meted out, there is no going back.
Because we can, and do, err, my sense of justice tells me that the death penalty is unjust. But at the same time, my sense of justice tells me that in cases like those of now-executed Ted Bundy and Timothy McVeigh, justice was served in a way no other penalty could have satisfied. I struggle with this dichotomy in my own principles.
The second example involves another basic tenet of our criminal justice system: that after a convicted criminal does his time, he is then released back into society, and that's the end of it. It would be the height of unfairness, of injustice, to impose a higher penalty after someone has served his time or at any time after sentencing.
This, however, seems exactly what we do when we put convicted sex offenders on a list for the rest of their lives, and track them, publicly, after they are released. My senses are piqued when I hear about this, because it seems unfair, unjust. But at the same time, as a father, as a neighbor, as a member of the community, this is information I feel the need to know and the right to have.
Questions of fairness, of justice, can be hard to answer. The right thing to do can seem obvious in the abstract, but once you hear the details, see the effects on real people, imagine how you would react as you sat in a jury or if you or a friend or family member were a victim of a crime with similar circumstances, the obvious can be less so.
Fortunately, most of the time, these nagging issues do not become a part of an individual criminal case. Be it embezzlement, drunk driving, stalking, sexual assault, burglary, or murder, most of the details of the case are not cast into constitutional waters. When they are, however, we can be assured that those arguing the case, on both sides, are looking out for all of our best interests, both the interests of the public and the interests of the individual.
Note: the originally published column had Peter Fonda playing the role of Clarence Gideon in Gideon's Trumpet. The actor was actually Henry Fonda.
Confronting Judicial Uncertainties
Our justice system is one of the best in the world. It exemplifies many of our basic beliefs: that one is innocent until proved guilty; the importance of due process; the concept of equal justice.
As with any human institution, our justice system is not perfect. Over time, a long series of Supreme Court decisions have ensured that our principles are applied.
One of the most famous, 1966's Miranda v Arizona, is the source of the Miranda Warning, which begins "You have the right to remain silent..." The decision in this case ensures that suspects are at least aware of their rights when they talk to police. Whether the suspects take the advice the Miranda Warning gives them is another story entirely.
Another famous case is 1963's Gideon v Wainwright, immortalized in the book Gideon's Trumpet, and the TV movie of the same name. This case ensured that all criminal defendants, even those not accused of a capital crime, must be provided a lawyer. One of my earliest memories of our justice system is watching Henry Fonda, playing Clarence Gideon, writing a motion to the Supreme Court by hand.
These cases, both decided before I was even born, stay with us today. They are applied in interrogation rooms and courtrooms on a daily basis. The police and prosecutors constantly push the boundaries of these and other important decisions, and the courts are constantly refining those boundaries for the next set of cases.
But even with all these defined boundaries, these legal limits, there still come times when we have to take serious looks at our system. The mere fact that the law and the processes to apply the law need refinement shows that what we have is not yet perfect.
As I watch and read news stories about national and local court cases, I grapple with these conflicts constantly. I'll take two examples to show what I mean.
First is the grand and divisive issue of the death penalty. Vermont, among other states, has decided that the death penalty is not a punishment we want to use. As we've seen in many cases, famous and infamous, those on death row can be placed there in error. The problem with the death penalty is its finality. Once the punishment is meted out, there is no going back.
Because we can, and do, err, my sense of justice tells me that the death penalty is unjust. But at the same time, my sense of justice tells me that in cases like those of now-executed Ted Bundy and Timothy McVeigh, justice was served in a way no other penalty could have satisfied. I struggle with this dichotomy in my own principles.
The second example involves another basic tenet of our criminal justice system: that after a convicted criminal does his time, he is then released back into society, and that's the end of it. It would be the height of unfairness, of injustice, to impose a higher penalty after someone has served his time or at any time after sentencing.
This, however, seems exactly what we do when we put convicted sex offenders on a list for the rest of their lives, and track them, publicly, after they are released. My senses are piqued when I hear about this, because it seems unfair, unjust. But at the same time, as a father, as a neighbor, as a member of the community, this is information I feel the need to know and the right to have.
Questions of fairness, of justice, can be hard to answer. The right thing to do can seem obvious in the abstract, but once you hear the details, see the effects on real people, imagine how you would react as you sat in a jury or if you or a friend or family member were a victim of a crime with similar circumstances, the obvious can be less so.
Fortunately, most of the time, these nagging issues do not become a part of an individual criminal case. Be it embezzlement, drunk driving, stalking, sexual assault, burglary, or murder, most of the details of the case are not cast into constitutional waters. When they are, however, we can be assured that those arguing the case, on both sides, are looking out for all of our best interests, both the interests of the public and the interests of the individual.
Note: the originally published column had Peter Fonda playing the role of Clarence Gideon in Gideon's Trumpet. The actor was actually Henry Fonda.
Thursday, October 1, 2009
Constitutional FAQ
This column originally appeared in the Williston Observer on October 1, 2009.
Constitutional FAQ
One of the most popular pages on my U.S. Constitution web site is the FAQ. As you may already know, "FAQ" stands for "Frequently Asked Questions." The concept is to place such questions in a central location so that as the same questions arise again and again, the answers can be quickly found.
Despite the FAQ, I still get a lot of the same frequently asked questions, especially, it seems, from students who have come to expect that answers should fall into their laps, rather than come to them through a bit of research. I find these to be "teachable moments," and often refer these students to specific sections of the Constitution, writing "If you read this section, you'll find your answer."
The past year has brought about a whole new set of questions that I had not seen before — whether they will attain "Frequently Asked" status or not, only time will tell.
One perfectly reasonable question often goes like this: "I've searched through the Constitution and cannot find the words 'health care' anywhere. What gives Congress the right to enact health care legislation at all?"
Parenthetically, I usually tell such questioners that the Congress doesn't have "rights" to do anything. It does, however, have the "power" to do things. The discussion of rights versus powers is sometimes an overwhelmingly philosophical one, but the distinction is important.
That detail aside, the answer to many questions of this type have the same answer: Article 1, Section 8 is a list of the powers of Congress. Some of them are quite specific and limited (for example, the power to coin money or establish post offices).
Others, however, are succinct in their phrasing but expansive in their practical effects. Clause 1 is one of the most expansive, granting Congress the power to collect taxes in order to, among other things, provide for the "general Welfare" of the United States.
If health care cannot be called a component of the general welfare of the people, nothing can be.
Clause 18 completes the picture. This clause grants Congress the power to make all laws "necessary and proper" to carrying out the powers listed previously. Whether the Framers of the Constitution understood what they had done when they wrote clauses 1 and 18 is a subject of some debate in historical and political science circles, but for all practical purposes the debate is settled.
When the Bush and Obama administrations were bailing out troubled banks, a common question went like this: "Under what authority does the government gain control of private business by giving or loaning them taxpayer money?"
The answer is another expansive clause of Article 1, Section 8; Clause 3, the interstate commerce clause. Under this clause, paired with Clause 18 again, the Congress has the power to enter into arrangements with business such as it did at the beginning of this year. I hasten to note that the government was not looking for an actual take-over of the affected businesses, but some degree of control was thought necessary (and proper, if you'll forgive the constitutional pun) to bring banks under control. This would give Congress and government agencies time to come up with new regulations to prevent such crises in the future, once the direct government influence of the businesses was removed.
Finally, this question came to me recently: "How does the Constitution say the people can kick out the Congress or the President?"
Questions such as these bemuse me, and it happens quite often. A plain reading of the Constitution reveals that there is nothing like a "recall clause", but the questioner assumes it must be there.
In my response, I told the questioner that there is no such clause in the Constitution, and that it was actually a good thing that it's not there. Recall efforts are disruptive and take attention away from the work that the Congress or the President should be doing. If a member of Congress or the President acts in an egregious manner, there are ways of removing them from office (to wit, impeachment). Short of that extreme and rare measure, the people are free to exercise their rights of free speech, of petition, and, ultimately, the power of the vote.
Constitutional FAQ
One of the most popular pages on my U.S. Constitution web site is the FAQ. As you may already know, "FAQ" stands for "Frequently Asked Questions." The concept is to place such questions in a central location so that as the same questions arise again and again, the answers can be quickly found.
Despite the FAQ, I still get a lot of the same frequently asked questions, especially, it seems, from students who have come to expect that answers should fall into their laps, rather than come to them through a bit of research. I find these to be "teachable moments," and often refer these students to specific sections of the Constitution, writing "If you read this section, you'll find your answer."
The past year has brought about a whole new set of questions that I had not seen before — whether they will attain "Frequently Asked" status or not, only time will tell.
One perfectly reasonable question often goes like this: "I've searched through the Constitution and cannot find the words 'health care' anywhere. What gives Congress the right to enact health care legislation at all?"
Parenthetically, I usually tell such questioners that the Congress doesn't have "rights" to do anything. It does, however, have the "power" to do things. The discussion of rights versus powers is sometimes an overwhelmingly philosophical one, but the distinction is important.
That detail aside, the answer to many questions of this type have the same answer: Article 1, Section 8 is a list of the powers of Congress. Some of them are quite specific and limited (for example, the power to coin money or establish post offices).
Others, however, are succinct in their phrasing but expansive in their practical effects. Clause 1 is one of the most expansive, granting Congress the power to collect taxes in order to, among other things, provide for the "general Welfare" of the United States.
If health care cannot be called a component of the general welfare of the people, nothing can be.
Clause 18 completes the picture. This clause grants Congress the power to make all laws "necessary and proper" to carrying out the powers listed previously. Whether the Framers of the Constitution understood what they had done when they wrote clauses 1 and 18 is a subject of some debate in historical and political science circles, but for all practical purposes the debate is settled.
When the Bush and Obama administrations were bailing out troubled banks, a common question went like this: "Under what authority does the government gain control of private business by giving or loaning them taxpayer money?"
The answer is another expansive clause of Article 1, Section 8; Clause 3, the interstate commerce clause. Under this clause, paired with Clause 18 again, the Congress has the power to enter into arrangements with business such as it did at the beginning of this year. I hasten to note that the government was not looking for an actual take-over of the affected businesses, but some degree of control was thought necessary (and proper, if you'll forgive the constitutional pun) to bring banks under control. This would give Congress and government agencies time to come up with new regulations to prevent such crises in the future, once the direct government influence of the businesses was removed.
Finally, this question came to me recently: "How does the Constitution say the people can kick out the Congress or the President?"
Questions such as these bemuse me, and it happens quite often. A plain reading of the Constitution reveals that there is nothing like a "recall clause", but the questioner assumes it must be there.
In my response, I told the questioner that there is no such clause in the Constitution, and that it was actually a good thing that it's not there. Recall efforts are disruptive and take attention away from the work that the Congress or the President should be doing. If a member of Congress or the President acts in an egregious manner, there are ways of removing them from office (to wit, impeachment). Short of that extreme and rare measure, the people are free to exercise their rights of free speech, of petition, and, ultimately, the power of the vote.
Subscribe to:
Posts (Atom)