We the People: Naderism (Episode 2)

There is a body of scholars and citizens who have expressed reluctance in deferring to the legislature because Representatives are always running for re-election instead of doing the work of the people (credit: Professor Derrick Bell) and Senators are too rich to be connected to the needs/desires of the common man (credit: my two cents). A logical deduction of this proposition is that Congressmen’s hands are tied by contributors and special interest thus being unable to lend a helping hand to those constituents most in need.

As a law student I have been privy to conversations about legislative deference, and in those conversations the majority of spoken opinion seems to be based on idealism rather than realism. By that I mean, the reservations to showing legislative deference are based on legislators not meeting the ideal level of democratic accountability; were it based on realism, we would acknowledge the power The People have to ensure they are properly represented. Have we lost all faith in citizens to take the actions necessary to wield that power? Have citizens allowed that power to lay dormant for so long that we no longer believe there is water in the well? The concern expressed about deferring to Congressmen should be secondary to the concern over our acquiescence to the notion that a collection of like-minded people cannot serve as a check against their representatives.

Pardon me if I generalize the sentiments of those who have spoken up on the issue, but far too many of The People seem jaded with the quality of representation and as a result do not feel that courts should show absolute deference to legislative intent when they interpret statutory language.

Be that as it may, there are citizen groups based on professional or social causes taking on one issue at a time. They develop economies of scale in their efforts by using the same strategic tools each time they take on a new goal (letter writing, phone banking, trips to the legislature w/ t-shirts and signs). Over time they gain more understanding of not only their representatives but also of other representatives either who favor their cause or who may be able to derive political capital by joining their coalition of support. The vast majority of the wealth in the country is held by a few which makes it that much more important for the other 90% to be active. These citizen groups are the check that keeps our democracy from operating as an oligarchy. However, being few in number makes it difficult for these citizen groups to out duel “Special Interest Groups.”

In searching for a counter punch to the influence exerted by Special Interest Groups, let us engage in a hypothetical. Under this hypo, in addition to bills being drafted in the offices of legislators or by lobbyists and passed on to legislative staff, The People would put forth legislation in the form of referendums. The process of passage would go in three phases: local, regional and state.

On the local level some concerned citizen or group of like-minded citizens would propose legislation on an issue and get other neighbors to sign a supporting petition. If 30% of the registered local voters sign the petition then it can move to the regional level. I chose 30% arbitrarily but it feels like a number high enough to require some serious leg work but not so high that it would deter citizens from kick starting the process.

The regional level would be the towns/cities included in that Congressional district. At this level, the citizen(s) must be more strategic about how they achieve the 30% support since they are doing this in purely a grassroots manner; here, there would not be a formal election placing their new legislation on the ballot because this is all about the people free of the political chicanery associated with formal elections. Success on the regional level requires that there be an additional pool of like-minded citizen(s) ready and willing to bolster the initial organized coalition to gain support from 30% of the region’s registered voters.

Let’s include two more hypothetical facts to this scenario: first, let us assume that once the citizen legislation has made it through the local and regional levels and is considered at the state level, it has been refined and polished by some like-minded citizens who also have some experience/expertise in drafting legislation. Second, let us assume that on the last Saturday of January, May, and September all citizen drafted legislation that made it past the regional level will be made available for ratification at citizen organized polls in every municipality, town and city in the state. Once ratified on the state level the referendum would become law. By adding this mechanism to the legislative process, the people would become more empowered and accordingly less fearful of misrepresentation.

Under this hypothetical ragtag system, citizens could make it crystal clear how they want their Congressmen to vote on pertinent issues. However, my belief that this system is in the least bit practical or possible shows that similar to the afore mentioned citizens who are reluctant to give legislative deference I too suffer from idealism rather than realism.

We the People: Speech as a Check (Episode 1)

“The extraordinary protections afforded by the 1st Amendment carry with them something in the nature of a fiduciary duty to exercise the protected rights responsibly, a duty widely acknowledged but not always observed…” Chief Justice Warren Burger made this statement in reference to newspaper and broadcasting enterprises’ duty to protect the right of fair trial by unbiased jurors; however, this statement also captures the essence of the fiduciary duty The People have to serve as a check against the government. History tells us that the drafters debated whether the people were intelligent enough to know how they should be governed and thus worthy to be entrusted as an unnamed check against the government. Over time, consistently keeping our voices silent when we feel wrongs have been committed and not taking immediate action to rectify those wrongs supports the Hamiltonian belief that America should be under the control and guidance of a few able men with the general population deferring to their wisdom.

Citizens have effective tools at their disposal to incite change: the freedom to assemble and the freedom of press together create a powerful voice protected by the freedom of speech. Effective advocacy of contentious issues requires the assembly of like-minded advocates pressing for change or restitution. Such assemblage personifies liberty and should be exercised without hesitation. Supplementary to this advocacy is the role of the press in facilitating “informed public opinion, the most potent of all restraints upon misgovernment.” Now that technology has increased the prevalence of citizen journalism, The People have an even greater duty to keep each other informed and to convey the thoughts of a few to the masses. Steady dialogue on our thoughts and principles will strengthen society and repair the divisions hindering our advancement as a nation. The collaboration of assembled citizen advocates, real and virtual (internet), and the free press is the lifeblood of “speech…the essence of self government.” Appropriately, the people should actively exercise their freedom to engage in the “debate on public issues…” in an “uninhibited, robust and wide open” manner.

In addition to the legal maneuvering that took place in Bush v. Gore, the lesser acknowledged but equally dreadful aspect of that historic moment was that The People didn’t rise up and vehemently contest the outcome. Immediately after the Supreme Court “stole the election” those citizens who felt robbed should have taken to the streets of Washington and, pardon my French, raised Holy Hell. There should have been advocates spewing rhetoric fiery enough to elicit “unity and action in a common cause.” Citizens should have drafted pamphlets with the revolutionary tone of Thomas Paine’s Common Sense coercing the government to take corrective action. The revolutionary reaction shouldn’t have been akin to the recent violence in Kenya but it should have resulted in more than the release of Fahrenheit 9/11.

Like-minded citizens joining in a collective effort towards a common end sits at the root of the American political process. Citizens should not stand by and watch representatives abuse our trust without exercising our right to protest. While I trust that the majority of representatives won’t indulge in mischief, if and when improper behavior does take place, it is up to the people to not only vote those people out of office but to publicly denounce those actions. The People should actively protest in the streets, on the Capitol steps and in the press.