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The Senior US Senator from Illinois, Dick Durbin, said the following just before one of the votes on the health-care insurance reform legislation in December, 2009:

“Thirty million Americans who currently don’t have health insurance  have the peace of mind of knowing that they have health insurance,” Mr. Durbin said. He added, “This is a real debate over whether or not health care is going to be a right or a privilege in America.”

My first reaction after reading this quote was one of perspective—specifically, on how far from this central question of “right vs. privilege” the debate on the health-care legislation had gotten in the obsession over a “public option.”  Health-care can be a right, whether implemented through private, non-profit or public sector organizations (the government funding the poor regardless).   The fundamental question in mandatory health-insurance coverage is whether something that is needed to survive (medical treatment for the sick) is a political right in a society.  If so, then the government has a responsibility to make sure that every citizen has insurance regardless of income.   I suspect that there are many citizens in the US who would say that health-care should not be a right because that right involves economic redistribution.   I believe one poll showed that 87% of Americans who were satisfied with their health insurance said they do not agree to pay for others who would not otherwise be able to afford insurance could have it.  The costly emergency room visits of the uninsured may mean that the insured pay more to have uninsured in society; even so, my point is that we can not assume that rights bearing on sustenance and involving economic redistribution are recognized as rights (rather than as “tax and spend”).   Essentially—and perhaps surprisingly—some people would say that others do not have the political right to life (though some of the same people would say that unborn fetuses have it!).   Unfortunately, given how the debate on health-care insurance has gone, it is difficult to know whether there is a sizable portion of the American society that does not want to recognize that every citizen has a right to basic necessities.   Is political discourse such that it inherently leads to a spirallying out on a tertiary aspect of an issue, rather than on the eye?  If so, how are we to discuss just what are the limits on rights in our society?  Are the rights recognized in law to be byproducts of discussions on implementation (i.e., by business, non-profits or government organizations)?   Furthermore, is a focus on implementation a case of putting the cart before the horse…and letting the horse wander off? 

Thinking of the health-care insurance debate this way—as focused on implementation as if that which is to be implemented follows from it—I submit that there are limits to public discourse.  Hence, Congressional representatives who are led by polls and newspapers may well be a case of the tail wagging the dog.  At the very least, such legislators would not be debating the central questions.   It is dangerous, if not utterly unwise, to legislate this way.   Yet as our system of government becomes more and more democratic (i.e., tailored to the public discourse and polls), we risk running ourselves into a ditch—not looking at where we are going.   Rarely, if ever, did I hear or read references to health-care as a right in the debate.  I heard a lot on process and implimentation, but little on whether a new right that involves redistribution ought to be recognized.  Moreover, we missed an opportunity to debate whether rights that require redistribution are actually rights as distinct from economic egalitarianism.    Not even our elected representatives, who are supposed to act as abuffer to direct democracy (i.e., pulse of the people at the moment), were able to focus on these questions.   Clearly, chasing tails is not the way of leadership.  

Source: http://www.nytimes.com/2009/12/23/health/policy/23health.html?_r=1&ref=us

A republic is characterized by the citizenry electing representatives, who in turn legislate (i.e., make law). As an alternative, the citizenry itself could vote directly on legislative proposals. The latter is called direct democracy. Ancient Athens, for example, practiced it. In the United States, the republic form is the prevalent form of government.  In spite of Wilson’s comment made in the constitutional convention that representation “is made necessary only because it is impossible for the people to act collectively,” direct democracy has typically limited to an occasional “referendum” question even though more vital questions could be put to the body politic directly. Typically, referendums have to do with elections (and thus with representative rather than direct democracy) or with general taxing or spending limits for a government. The rationale for putting general taxing or spending limits up for referendum is that they apply to a government as a whole—this perspective being from that of popular sovereignty (i.e., the citizenry, whose electoral power transcends their government). Rarely, an “issue” is put up to be decided directly by the voters. In 2010, for example, Californians decided on whether to legalize pot in California. I contend that many more matters of policy could be decided directly by the voters. Since the elected representatives represent the citizenry, the former should not be presumed as having the definitive right of such decision. Deciding on matters of general policy are primarily value-judgements, rather than requiring expertise.  Issues such as abortion, gay marriage, the Bush tax cuts, and the Iraq and Afghanistan wars could—and I would argue should—be decided by the voters directly. Beyond issues, the voters could decide more general governance questions, such as whether federalism should be continued. Such a question could lead to more specific proposals at the next election. For example, if the majority of American voters want the US to be of federalism, representatives could work on not only constitutional amendments, but also proposals for the voters on which broad areas of power would be transferred back to the states (or the voters could be asked—assuming a majority still want federalism—whether X or Y areas of power should be transferred back to the States). Should elected representatives counter that we should not trust the people to make such decisions, I would argue that it is nonsensical for an agent to contend that his principal is somehow inferior to himself. In a representative democracy, the representatives are the agents of the people; it is not the other way around.

In short, I contend that popular sovereignty ought to be strengthened rather than vitiated. Elected representatives are best suited to working out the technical details rather than deciding broad questions of policy.  An election campaign is a bricollage of factors; it is rare for a victor to be able to claim a mandate on a particular issue. In fact, a representative may be elected for reasons having nothing to do with his or her positions on “the issues.” The midterm election of 2010, for example, could be informed by a mix of factors; it was not even clear whether people voting Republican, for example, were saying yes to that party’s platform or no to the previous two years of legislation (which was informed by both Democratic and Republican law-makers—neither party being able to enact its platform as given).  Even voters blaming the Democratic Party for the resulting legislation is not strictly speaking accurate, as compromises had to be made with Republicans.  So an election of representatives is a broad brush that cannot be divined as a mandate on particular issues.  Regarding particular policies—even foreign policy, such as whether the US Government should continue to support Israel—the only way to know if there is a mandate is to put the matters up for decision by the voters. Political parties could have a say on how the questions are worded so they are objective (or two versions could be provided). Courts would still be able to declare the resulting law unconstitutional, but even here constitutional amendment is possible.  Even in terms of amendments, the voters, rather than their constitutional delegates or state or federal representatives, could decide directly.  For example, the voters could decide whether US Senators should continue to be elected, or whether they should be appointed by the state governments or be the governors themselves (the US Senate being like the European Council of the E.U.). The voters could also decide whether abortion should be decided by the state or US courts, or directly by the voters—by state or US—as an amendment.

At the very least, basic decisions would be made that have been mired in disputes between governmental institutions and/or government officials. We are depending much too much on elected and appointed government officials to “make” policy. Ultimately, the will of the people should be freed up and exercised beyond the confines of simply electing representatives—being subject only to the judiciary protecting individual rights (which can be overruled by constitutional amendment, which can be of the people).  Sadly, those in power—the elected representatives—will naturally and ironically resist efforts to expand the will of the people. Because the election of a representative involves many elements, an elected representative could easily get around interpreting his or her victory as a mandate to expand the will of the people.  This is precisely part of the problem, and it maintains the monopoly of power that our elected representatives enjoy.  I suspect this is no accident. Hence I am not optimistic on any expansion of popular sovereignty any time soon.  Even so, I hope my thoughts here are thought-provoking. Although not the best person to cite, Richard Nixon pointed in one of his books to the need for political development: “In terms of material progress, the twentieth century has been the best in history, but in terms of political progress the record has been disappointing.”  (See Richard Nixon, 1999 Victory Without War, New York: Simon and Schuster, 1988, p. 16). What I am suggesting is that our political system is so antiquated that were it to develop as technology has, our use of elections could make quite a leap forward.  In spite of all the technological change, we tend to hold very rigidly to the way things have “always been done” in politics.  It is time for politics to catch up. In fact, the technological progress could facilitate the expansion of popular sovereignty.  For example, voters could surf the internet for information before voting on general policy areas. The challenge may well be in how to enable illiterate voters to be able to take part.  As one possibility, voters could vote at desks (as in a classroom) while a reader reads through the questions on the ballot. My point is that we can begin to think outside the box and shake loose our assumptions.

Source of Wilson quote: James Madison, Notes in the Federal Convention of 1787. New York: Norton, 1987, p. 74.

In the European singing contest/show in which Susan Boyle competed, she lost the top spot to a rap group of teenagers.  The general public could text in to vote.  The choice was not made by the three judges.  That one of the judges explicitly advocated for her after her final performance (just before the voting) was not sufficient to sway the majority of the votes cast by the public.  To be sure, there were non-music-related reasons to vote against her. For instance, the suggestive comments she made on stage just before her first performance, including, “I’m 48, and that’s not my other half” (accompanied by swinging her hips), were downright emetic, if not strange.  So it is possible that the voters put her personality above her excellent singing.  It is also possible that most of the callers (or most of votes, as people could text more than once) could have preferred rap music.

What I am getting to is this: a tension or outright contradiction can exist between meritocracy and democracy.  Plato and Aristotle both claim that there is a dark side to each system.  Meritocracy can slide into aristocracy and democracy into government by selfish and uninformed mob.  What struck me about the results of the singing contest was that the rap singing wasn’t good singing. The teenagers seemed to be playing around, their performance being more about dancing than singing.   It was not a dancing contest.  The voters could use any reason (or none) in deciding who to vote for.  Furthermore, it can be safely assumed that most voters were not experts on what makes good singing.  They were not trained to separate their own tastes from a critical perspective focusing on the voice.  The judges presumably could do that, but they were relegated to making their views known—views that the voters could ignore without any imprecation.
In a representative democracy, popular election is held to be the best political decision-making device regarding choosing representatives because the government is supposed to be for the people.  It is not that the people will necessarily make the best decisions, even where their own interest is concerned.  The US and EU relish popular election, yet both governmental systems contain safeguards, or checks, on it by having various lengths of terms and some officials appointed rather than elected.  Yet popular election is generally regarded as sacred in both Unions and in their respective states.    But not so fast.  This is not absolute.
In the case of Susan Boyle, a good case could be made that the three judges should have decided who won because they had greater expertise concerning singing.  Or take movies: I would wager that the Oscars, whose awards are determined by members (i.e., people who have expertise in the various fields of filmmaking), is more esteemed than are the People’s Choice Awards.  I would argue that the results of the Oscars are more credible and accurate because expertise is not chucked for a flavor of the month.  For instance, in the 2010 Oscars, Hurt Locker beat Avitar for Best Director and Best Picture.  Hurt Locker was largely an Indie (i.e., on the fringes) film, whereas Avitar broke box office records and was no doubt more popular with the general public.  The Academy members were able to weight improved 3D effects, story and direction without allowing the technical dazzle to overshadow the latter two, which are very important to an excellent picture.  The most popular film is not necessarily the best.  Of course, Academy voting is not perfect.  The 5000 plus membership may be sufficiently small that cronyism or, its opposite, grudges, may play a role.  Avitar’s Cameron is apparently not the most-liked man in Hollywood, but on the other hand so many techies worked on his movie that he had his own voting bloc.  I suspect that both of these were factors, but were not determinative.  I must admit that I saw a television clip a few months before the 2010 Oscars showing Cameron being very rude to a fan who simply wanted an autograph at LAX. So I was rooting for his ex-wife and her movie.  No selection process, or person for that matter, is perfect.

My point is that in watching Susan Boyle as well as the Oscars, I would not be surprised if there were not a general recognition in society that there are drawbacks to popular election, such that it is not necessarily the best method in every case (even in terms of selecting government officials).  I am not arguing for a society ruled by philsopher kings or judges, or, moreover, by an elite (even though I suspect this is already the case).  Rather, I am arguing that maybe we don’t esteem popular election as much as we think. Ignoring our reservations has caused problems in the past.

Most notably, we have eviscerated the check that was to have been made by the Electoral College in the selection of a US President.  A charismatic, though vastly inferior, candidate can be elected if he appeals to the passions of the moment being enjoyed by the general public.  We can’t even be sure that winner was elected on the basis of one of his positions.  For example, we can’t assume that Barak Obama was elected US President because he was advocating government subsidies on the uninsured (health).   The President of the EU is selected by a body comparable to what the US Senate was until 1913 (i.e., before its members were popularly elected).  When the first EU President was appointed (or elected) in 2009, some Europeans criticized the lack of democracy in the process.  “The people had no voice!” one person claimed.  Well, the people did have a voice because they elected all of the people who made the decision.  In fact, electing a state-level official is closer to the people because the electorate is smaller.   The cases of Susan Boyle losing at the European “Idol” show and Avitar losing at the Oscars suggests that having a buffer on a popular election is perhaps not a bad idea.  Too much democracy by popular election in a system of government has its downside.  To be sure, popular election does have value. It can be used to hold officials accountable when unelected officials would let them remain in office.

Perhaps a good solution would be  to look back at the Electoral College and understand why the Founders wanted a such a buffer.  It wasn’t until after the 1860s that in every state the people elected their respective state’s electors.  Andrew Jackson has urged that the people choose the US President back in 1828, and the contagion spread so much that the people of the American republics felt entitled to directly determine the President of the Union.   In 1913, a constitutional amendment was ratified whereby US Senators had to be directly elected by the people (at the cost of directly representing their state governments in the General Government). Today, the US Supreme Court is the only branch of the US Government not directly choosen by the American people. Originally, the US House was the only body in the US Government designed for popular election because it was supposed to reflect the immediate passions of the people (hence the short term of two years).   The US Senate was meant to be a buffer on the passions of the moment, as well as to protect the turf of the state governments against usurption by the General Government of the Union.  The US President was meant to protect the long-term viability of the Union (which hardly best served by polls).
It is perhaps no accident, kein Zufall, that the long-term viability of the Union gets short-changed for what is expedient—and that this game is now played mostly in Washington.  Blinded by the allure of popular election, we can’t have enough of it and we have adjusted our institutions accordingly.  Yet at the same time, we take the Oscars as the default and hardly pay attention to the People’s Choice Awards.  In short, we have one hell of a blindspot going on here.

So I suggest that we have annual elections for the US House (as had been suggested in the convention, but for the hardships of travel in 1786).  Further, as the appointment of US Senators was rift with corruption when the state governments did it, why not fashion the Senate on the example of the European Council?  The sitting governors themselves would periodically meet (regular summits, as they do represent semi-sovereign governments…just like the US Government itself is semi-sovereign).   That leaves the US President and the people’s entitlement.  A continent-wide election puts the candidates very far from their electors, which means a very imperfect selection (more of a popularity contest, actually).  We must bite the bullet and buffer ourselves from ourselves.  This is perhaps the hardest thing for the American people to do—we are really so arrogant concerning ourselves.  We think we can’t be wrong.  How squalid that is!  How ugly!   I would rather see Susan Boyle fully displayed in Playboy than gaze upon this attitude.  Yes, I am a native (American)—no, not an Indian. I was born and bread in the heartland, yet I can smell the air and look around me—the human pollution being palpable.   Concerning selecting a President for the Union, the trouble in creating a buffer from excessive democracy is in avoiding corruption.  I was going to suggest having both the state governments vote in one body and the people in another and where the same candidate is not chosen through the election to the US House (each state having one vote).  But this is too complicated.   As we are  Union of States and the latter have been marginalized, perhaps the US President ought to be selected by the state governments.   Perhaps the governors could nominate a candidate and the senates confirm.  The states’ executives would begin the process whereby the Union’s executive is selected, and the confirmation would be a check against corruption between a candidate and a governor.   It would give the people an added reason to pay attention to their senate races. That the people elect their governor and state senators means there would be a link to democracy.   Contrary to a continental popular election, the governors and even the state senators could have a greater opportunity to meet the candidates and thus make a better judgment, at least in removing any real losers whose marketing could nonetheless say the people.   Considering that some candidates come out of nowhere, getting to know them is important.  Consider Carter in 1976 (virtually unknown nationwide before the primaries), or Obama in 2008.  It is risky to elect people we have just met on the basis of televised debates and commercials.

If we ignore the problem of excess democracy in the presumption that we can’t be wrong, we will risk repeating on a grander scale the sort of election outcome that went against Susan Boyle.   She may not be the best looking woman, but is that really relevant to listening to her voice?  The most votes is not necessarily indicative of the best.  Ironically, in proffering an alternative that moderates the popular election element, I am asking us to rise to our best.

For the drawbacks in the Oscars voting, pls see: http://www.time.com/time/arts/article/0,8599,1970502-1,00.html

A republic is characterized by the citizenry electing representatives, who in turn legislate (i.e., make law). As an alternative, the citizenry itself could vote directly on legislative proposals. The latter is called direct democracy. Ancient Athens, for example, practiced it. In the United States, the republic form is the prevalent form of government.  In spite of Wilson’s comment made in the constitutional convention that representation “is made necessary only because it is impossible for the people to act collectively,” direct democracy has typically limited to an occasional “referendum” question even though more vital questions could be put to the body politic directly. Typically, referendums have to do with elections (and thus with representative rather than direct democracy) or with general taxing or spending limits for a government. The rationale for putting general taxing or spending limits up for referendum is that they apply to a government as a whole—this perspective being from that of popular sovereignty (i.e., the citizenry, whose electoral power transcends their government). Rarely, an “issue” is put up to be decided directly by the voters. In 2010, for example, Californians decided on whether to legalize pot in California. I contend that many more matters of policy could be decided directly by the voters. Since the elected representatives represent the citizenry, the former should not be presumed as having the definitive right of such decision. Deciding on matters of general policy are primarily value-judgements, rather than requiring expertise.  Issues such as abortion, gay marriage, the Bush tax cuts, and the Iraq and Afghanistan wars could—and I would argue should—be decided by the voters directly. Beyond issues, the voters could decide more general governance questions, such as whether federalism should be continued. Such a question could lead to more specific proposals at the next election. For example, if the majority of American voters want the US to be of federalism, representatives could work on not only constitutional amendments, but also proposals for the voters on which broad areas of power would be transferred back to the states (or the voters could be asked—assuming a majority still want federalism—whether X or Y areas of power should be transferred back to the States). Should elected representatives counter that we should not trust the people to make such decisions, I would argue that it is nonsensical for an agent to contend that his principal is somehow inferior to himself. In a representative democracy, the representatives are the agents of the people; it is not the other way around.

In short, I contend that popular sovereignty ought to be strengthened rather than vitiated. Elected representatives are best suited to working out the technical details rather than deciding broad questions of policy.  An election campaign is a bricollage of factors; it is rare for a victor to be able to claim a mandate on a particular issue. In fact, a representative may be elected for reasons having nothing to do with his or her positions on “the issues.” The midterm election of 2010, for example, could be informed by a mix of factors; it was not even clear whether people voting Republican, for example, were saying yes to that party’s platform or no to the previous two years of legislation (which was informed by both Democratic and Republican law-makers—neither party being able to enact its platform as given).  Even voters blaming the Democratic Party for the resulting legislation is not strictly speaking accurate, as compromises had to be made with Republicans.  So an election of representatives is a broad brush that cannot be divined as a mandate on particular issues.  Regarding particular policies—even foreign policy, such as whether the US Government should continue to support Israel—the only way to know if there is a mandate is to put the matters up for decision by the voters. Political parties could have a say on how the questions are worded so they are objective (or two versions could be provided). Courts would still be able to declare the resulting law unconstitutional, but even here constitutional amendment is possible.  Even in terms of amendments, the voters, rather than their constitutional delegates or state or federal representatives, could decide directly.  For example, the voters could decide whether US Senators should continue to be elected, or whether they should be appointed by the state governments or be the governors themselves (the US Senate being like the European Council of the E.U.). The voters could also decide whether abortion should be decided by the state or US courts, or directly by the voters—by state or US—as an amendment.

At the very least, basic decisions would be made that have been mired in disputes between governmental institutions and/or government officials. We are depending much too much on elected and appointed government officials to “make” policy. Ultimately, the will of the people should be freed up and exercised beyond the confines of simply electing representatives—being subject only to the judiciary protecting individual rights (which can be overruled by constitutional amendment, which can be of the people).  Sadly, those in power—the elected representatives—will naturally and ironically resist efforts to expand the will of the people. Because the election of a representative involves many elements, an elected representative could easily get around interpreting his or her victory as a mandate to expand the will of the people.  This is precisely part of the problem, and it maintains the monopoly of power that our elected representatives enjoy.  I suspect this is no accident. Hence I am not optimistic on any expansion of popular sovereignty any time soon.  Even so, I hope my thoughts here are thought-provoking. Although not the best person to cite, Richard Nixon pointed in one of his books to the need for political development: “In terms of material progress, the twentieth century has been the best in history, but in terms of political progress the record has been disappointing.”  (See Richard Nixon, 1999 Victory Without War, New York: Simon and Schuster, 1988, p. 16). What I am suggesting is that our political system is so antiquated that were it to develop as technology has, our use of elections could make quite a leap forward.  In spite of all the technological change, we tend to hold very rigidly to the way things have “always been done” in politics.  It is time for politics to catch up. In fact, the technological progress could facilitate the expansion of popular sovereignty.  For example, voters could surf the internet for information before voting on general policy areas. The challenge may well be in how to enable illiterate voters to be able to take part.  As one possibility, voters could vote at desks (as in a classroom) while a reader reads through the questions on the ballot. My point is that we can begin to think outside the box and shake loose our assumptions.

Source of Wilson quote: James Madison, Notes in the Federal Convention of 1787. New York: Norton, 1987, p. 74.