A Bit of Historical Background
American democracy has been under development since Colonial times as settlements, villages, town, cities, and colonies experimented with various forms of self-government. They paid little more than lip service to what was going on in Europe. It’s true that the King of England appointed royal governors for each colony. But England was months away by ship. An emissary had to cross the Atlantic twice to get a message or decision over and back, and so governors usually depended on the colonists themselves to implement the functions of government. Each colony had an elected legislative body (lower chamber) and a privy council (upper chamber) appointed by the governor but made up of colonists. Purely local matters were largely left in the hands of those localities.
In the mid-18th century, relations between England and their American colonies became increasingly bitter as the English King and Parliament began to intervene more directly and forcefully into Colonial affairs, and the colonists objected. England believed that it was only exercising its God-given right to rule; the colonists thought that England was usurping rights of self-government that the colonists had enjoyed for two centuries.
Hence a movement began among the Colonies to separate themselves from England, to declare independence, and to form a new nation.
Bitter argument between loyalists (or Tories) and separatists came to a head in 1776. In January of that year, Thomas Paine published Common Sense, a 48-page screed against the King and Parliament and indeed against all autocratic governments. His essay was a forceful polemic in favor of American independence. American independence was declared at a meeting of all the colonies in Philadelphia in July 1776. Before that meeting Common Sense had gone through multiple printings and reprintings, making it the single most successful political pamphlet in history. Before Independence, historians estimate that about a third of the colonists supported separation from England, a third wanted to remain a part of England, and a third did not care one way or the other. But Thomas Paine’s pamphlet helped swing opinion in favor of independence.
To become and remain a new nation, America first had to fight and win a war against England, the American Revolutionary War (1776-1783). Then America had to setup the mechanics of a new government. The colonies cooperated marginally well during the war, motivated by the urgency of facing a common enemy. But that cooperation was certain to falter once the war was over. For that reason, discussions/meetings/conventions took place from 1777 to 1781. Their purpose was to establish the post-war American Government, uniting the thirteen original states in perpetuity. These meetings finally produced the Articles of Confederation, which lasted as America’s foundational document from 1781 to 1787.
The Articles of Confederation, while perhaps a good first step in creating a constitutional democracy, was flawed in many serious ways. Most importantly, because they mistrusted the kind of strong central government epitomized by England, the authors designed an exceedingly weak national government. The Articles of Confederation gave most powers to the states and gave the central government no enforcement mechanism to ensure that every state lived up to its obligations. The Articles created Congress, a unicameral national legislature that also exercised executive and judicial functions. The Articles of Confederation did not provide for the election of any federal official directly by the people. Rather, each state legislature appointed two to seven Delegates to Congress. All votes in Congress were taken by state, with each state having one vote. Major decisions required the concurrence of nine states; lesser matters could be decided by a simple majority. Further, the Articles required unanimous consent of every state legislature in order to adopt any amendments to the Articles themselves.
Recognizing that the Articles were not working, leaders throughout the states called for a Constitutional Convention, which convened in Philadelphia in 1787. Every state was invited to send a delegation to help write a new foundational document or to at least amend the Articles of Confederation. Every state except Rhode Island sent a delegation. That convention produced the 1787 Constitution of the United States, and ultimately all 13 states ratified it. Interestingly, the 1787 Constitution required only nine states to ratify it, after which it came into full force and effect among those states that had ratified it. The authors knew going in that they would probably not be successful if they required unanimous consent, so they decided to ignore that requirement of the Articles. (That is actually a very good precedent for the solution to our current challenges presented in Part III of this work.)
While the 1787 Constitution corrected many of the faults of the Articles of Confederation, American democratic government remained then (and still remains) a work in progress. Among the most significant improvements of the 1787 Constitution over the Articles of Confederation are the following:
- A far stronger federal government with the power and authority to carry out its duties throughout the United States.
- Separation of the powers of the federal government into three co-equal branches – legislative, executive, and judicial.
- A federal system of governments, composed of a federal government separate and distinct from the several state governments, which remain sovereign within their own jurisdictions.
- A careful system of checks and balances, both between the federal government and the states and among the co-equal branches of the federal government.
- A bicameral legislature, the Congress, consisting of a more numerous lower chamber, the House of Representatives, elected directly by the people and proportional to the population in each state, and an upper chamber, the Senate, consisting of two senators from each state, appointed by the legislatures of each state.
- Election of the president by electors appointed by each state, with the number of electors from each state equaling the total number of senators and representatives from that state. (This is where we got the notion of the electoral college, even though the term “electoral college” does not appear in the Constitution.) Quite interestingly, the 1787 Constitution does not require that the electors from each state be elected by the people, though that is the case today. (In the first presidential election, held from December 1788 through January 1789, only six states held a popular vote.)
- The Senate’s “advice and consent” role in confirming presidential executive and judicial appointments and in ratifying treaties as well as other limitations on the power of the president.
- A fairly detailed list of the powers of Congress, limitations on the powers of Congress, powers of the states, and limitations on the powers of the states.
- Jurisdiction of the federal courts.
While ratification of the Constitution was being debated, many critics thought the role of the federal government would be too powerful vis-à-vis both the states and the individual citizen. Therefore, a series of amendments was proposed to make the rights of the people and of the states more secure. These amendments would then be submitted to the states for their approval as soon as the Constitution itself was adopted. Ten of these amendments were ratified in 1791 and became known as the Bill of Rights. Many of our most precious rights as American citizens derive directly from the Bill of Rights. These first ten amendments are as follows:
Amendment 1: Freedom of religion, speech, the press, and assembly
Amendment 2: Right to bear arms
Amendment 3: Limits on the quartering of soldiers in private houses
Amendment 4: Limits on searches and seizures without a warrant
Amendment 5: Rights of defendants in criminal cases: indictment by a grand-jury; protection against double-jeopardy and self-incrimination; prohibition against the loss of life, liberty, or property without due process of law; limits on eminent domain
Amendment 6: More rights of defendants in criminal cases: speedy trial by an impartial jury, access to information concerning the accusations against them, confrontation of witnesses, compulsory evidence for the defense, and the assistance of counsel
Amendment 7: Right to a trial by jury in civil cases
Amendment 8: Prohibition of excessive bail, excessive fines, and cruel and unusual punishments
Amendment 9: Rights of the people beyond those enumerated in the Constitution
Amendment 10: Powers not given to the Federal Government by the Constitution are reserved to the states and to the people.
The original 1787 Constitution was less than perfect from the outset, and it did not create a most perfect union. Even the Framers themselves, or many of them, recognized that their work was incomplete – hence the insistence on the Bill of Rights, adopted as amendments to the Constitution during George Washington’s first term as president.
After 1791, the long course of American history bends in favor of the expansion of democracy, enfranchisement of wider segments of the populace, and giving more power to the people. Each change had detractors, and some remain quite controversial. Nevertheless, all these changes expand citizen rights, empower individuals and groups, and/or ensure equality before the law. We have made major improvements through constitutional amendments, judicial decisions, laws, and customs. Examples in each category follow:
Expansion of democracy through constitutional amendments
- Abolition of slavery (13th Amendment, 1865)
- Citizenship rights (14th Amendment, 1868)
- Right to vote regardless of race (15th Amendment, 1870)
- Direct election of Senators by the people (17th Amendment, 1913)
- Women’s right to vote (19th Amendment, 1920)
- Limit of president to two terms of office (22nd Amendment, 1951)
- Right to vote for president extended to the District of Columbia (23rd Amendment, 1961)
- Elimination of poll tax or other impediments to voting (24th Amendment, 1964)
- Right of all citizens to vote at age 18 (26th Amendment, 1971)
Expansion of rights through Supreme Court decisions
- Brown v. the Board of Education of Topeka, Kansas (1954): Made school segregation illegal
- Miranda v. Arizona (1966): Requires law enforcement to advise suspects in custody of their right to remain silent (right against self-incrimination) and of their right to an attorney
- Loving v. Virginia (1967): Banned laws which forbade interracial marriage
- Roe v. Wade (1973): Established a woman’s right to an abortion before the third trimester of pregnancy
- District of Columbia v. Heller (2008): Established the Second Amendment right of an individual citizen to own a firearm for traditionally lawful purposes, such as self-defense within the home
Expansion of rights through federal laws
- Social Security Act
- Voting Rights Act
- Freedom of Information Act
- Right to organize unions
- Child labor laws, minimum wage laws, and laws concerning workplace health and safety
- Equal access to education for women, the disabled, minorities, and the poor
- Expanding access to healthcare: Medicare, Medicaid, Veterans Health Administration, and the Affordable Care Act
- Environmental protection laws – the EPA, clean water, and clean air
- Right to privacy
Although we have made progress toward the achievement of “a more perfect union”, much remains to be done. The balance of Part I of this paper discusses the principal challenges we face today. Part II proposes constitutional amendments, laws, and procedures which would go a long way toward meeting those challenges. Finally, Part III proposes a rewrite of the 1787 Constitution, titled Constitution II, an easier and more straightforward path to meeting all these challenges at once, empowering citizens, making our country more democratic and more representative of its citizens, and “forming a more perfect union”.
The six principal challenges are these:
- Deficiencies in the manner of choosing the president and vice president
- The Non-Representative U.S. Senate
- Gerrymandering of Congressional Districts
- Other counterproductive characteristics of current federal election practices
- Undemocratic rules in the House and Senate
- The incomplete Bill of Rights