A Crucial Element of Democracy

This is a blog by Robert Gutierrez ...
While often taken for granted, civics education plays a crucial role in a democracy like ours. This Blog is dedicated to enticing its readers into taking an active role in the formulation of the civics curriculum found in their local schools. In order to do this, the Blog is offering a newer way to look at civics education, a newer construct - liberated federalism or federation theory. Daniel Elazar defines federalism as "the mode of political organization that unites separate polities within an overarching political system by distributing power among general and constituent governments in a manner designed to protect the existence and authority of both." It depends on its citizens acting in certain ways which Elazar calls federalism's processes. Federation theory, as applied to civics curriculum, has a set of aims. They are:
*Teach a view of government as a supra federated institution of society in which collective interests of the commonwealth are protected and advanced.
*Teach the philosophical basis of government's role as guardian of the grand partnership of citizens at both levels of individuals and associations of political and social intercourse.
*Convey the need of government to engender levels of support promoting a general sense of obligation and duty toward agreed upon goals and processes aimed at advancing the common betterment.
*Establish and justify a political morality which includes a process to assess whether that morality meets the needs of changing times while holding true to federalist values.
*Emphasize the integrity of the individual both in terms of liberty and equity in which each citizen is a member of a compacted arrangement and whose role is legally, politically, and socially congruent with the spirit of the Bill of Rights.
*Find a balance between a respect for national expertise and an encouragement of local, unsophisticated participation in policy decision-making and implementation.
Your input, as to the content of this Blog, is encouraged through this Blog directly or the Blog's email address: gravitascivics@gmail.com .
NOTE: This blog has led to the publication of a book. The title of that book is TOWARD A FEDERATED NATION: IMPLEMENTING NATIONAL CIVICS STANDARDS and it is available through Amazon in both ebook and paperback versions.

Tuesday, September 22, 2015

A COAT THAT FITS

From time to time, a teacher knows he or she needs to cover some material that might not be the most scintillating subject.  Amending a constitution is one such subject, but it is fairly important.  One approach is to use a related issue as a takeoff that can lead to the other aspects of the subject matter.  In the case of amending a constitution, one such issue is how easy the process is to change the document by ratifying an amendment.  Why is this an issue?  Because a constitutional process that is too prone toward change is one that encourages people to lose sight of a very important constitutional quality; that is, the quality that holds the constitution as a fundamental law.  Let me explain.

What is a constitution?  In our system, one that follows the federal model, it is an agreement.  For readers of this blog, this will sound familiar.  The agreement is among the people of a society who have come together, usually through representation, to write the agreement that will be proposed to the people for their approval.  The agreement is one that establishes a government.  It more specifically identifies the purposes motivating the proposal, a list of general principles in the form of a bill of rights, a structural plan for the government, a list of special powers and/or limitations of powers (this includes provisions for those who do not live up to the agreement), and the signatures of the representatives who agree with the document.  By signing the document, the representative is pledging allegiance to the provisions of the document.  Usually, the requirement is that all the representatives sign the agreement.  In order to get that unanimous approval, many negotiations have to take place.  The process then calls for a ratification of the constitution.  This latter provision calls on the people to directly or through more localized representatives to vote in approval or disapproval.  If a super majority, say two-thirds or three-fourths, agrees with the constitution, it goes into effect at a given time.  This vote not only indicates whether the people agree with the document, but also is a pledge or promise to live by its provisions.  For those who vote against the document, they also are bound by the provisions if they choose to continue being a part of that society.  If the pledge calls on God as a witness, it is a covenant; if it doesn’t, it is a compact.  Our national constitution is a compact.

Now here is the issue.  Since the constitution is the fundamental law of the land, should it be easy to change?  Now the issue does not apply to our national constitution since it is very difficult to change, but state constitutions are something else.  The prime example of an amendment process that can be considered as too easy is that of California.  There are more ins and outs involved, but that state’s process includes a proposal phase in which a mere eight percent of the electorate sign a petition and the proposal is placed on an upcoming election ballot.  If a simple majority agree, the proposal becomes part of the constitution.  But that is only the most egregious example.  Other states not only have fairly open processes but also the substance of proposed amendments in many states falls far afield from the type of topics I outlined above.  For example, many states have constitutional provisions that govern economic policies, regulation policies, and cultural policies.  For example, here in Florida we recently voted on two amendment proposals, one that would allow the sale of marijuana for medical purposes and another providing funds for public land acquisition.  I know this is a matter of opinion, but to me these are policy questions that should be handled by regular statutes, not constitutional provisions.  I will add, though, that in order to be ratified, a proposal has to have a sixty percent approval rate in Florida.  What seems to be the biggest concern is that by being able to easily change the constitution or opening it up to more day to day issues, the constitution loses its lofted sense of importance; it loses the “sacred” aura that I believe it should inspire.  The constitution is the vehicle by which we commit ourselves to each other.

On the other hand, can the process be too severe?  In the case of our national amendment process, has it proven to be too burdensome?  Some ask whether, by making it as difficult as it is, we have made it near impossible to meet the challenges of a changing society.  About this, Thomas Jefferson, during the later years of his life, wrote:
I am certainly not an advocate for frequent and untried changes in laws and institutions. . . . But I know also, that laws and institutions must go hand in hand with the progress of the human mind.  As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times.  We might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regime of their barbarous ancestors.[1]
Yes, times change and even our basic notions about life, in general, and all of its aspects, including how we govern ourselves, need to keep up with those changes if we wish to prosper and even survive as a viable society.  Today is no different.  For example, our inability to control the amount of money that influences our politics has made our system less democratic, less respectful of our commitment to equality.  Yet any talk of proposing and having a constitutional amendment ratified is readily dismissed given how difficult it is.  Another legitimate constitutional problem that needs addressing is how we draw up congressional districts and the associated problem of gerrymandering.  Again, this is a problem that can be solved only through changing our constitution and is therefore seen as being beyond solving.

Once students understand the function of constitutions, the process by which constitutions are amended, and the issue of how easy or difficult that process should be, students could be assigned to address the issue described above; that is, they can come up with a constitutional provision that would hit upon the right balance between a process that is too easy or too hard.

So, I know you’re just dying to see what my solution happens to be.  Here it goes:  first, adopt a process that is as difficult as our national constitution calls for, but add the following.  Institute a modified constitutional convention provision in which a convention of representatives – voted on for this specific purpose – convenes every twenty years.  The convention is to propose a new constitution.  The document they propose can be just a copy of the constitution already in effect or it can have a few or many changes or it can be a whole new document.  After the document is issued, the people get to voice their acceptance or rejection.  A sixty percent approval rate sounds about right.  If the proposed constitution is just an exact copy of what is in effect, then the vote would be a simple expression of allegiance as the constitution is already assured to continue.  I believe that an active statement of approval is important; it reminds us of the centrality of a constitution.  This process, if adopted at either the national or state level, I think, would meet that balance between a too difficult or too easy a process.  Also, since highlighting the process with a convention would bring added attention among the populace, the process might discourage some of the more “unconstitutional” type of proposals from being brought up – this could be further enhanced if some instructional programming on TV or social media accompany the calling of the constitutional convention.  For, after all, as Jefferson so aptly put it, we need a constitution that fits our current realities, but maintains the dignity of a true constitution.



[1] As quoted in Hofstadter, R.  (1948).  The American political tradition.  New York, NY:  Vintage Books.  Citation on p. 44.  One can interpret Jefferson’s use of the term “institutions” as including constitutional provisions.

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