Article V

The other day we were discussing whether or not populist democracy was allowed in America. We all know that our government properly labeled is a representative democracy. Most of the time, that is what we want, too: Let our elected officials design and debate the laws that will govern. The majority of us lack the training, expertise, (and often the interest!) to really consider a law, its potential ramifications, and think outside our own self-interest to determine if it may be good for society.

However, Colorado's Constitution has been used in recent years to promulgate a kind of popular democracy. A friend had heard that someone was going to bring a lawsuit against that behavior under the grounds that we are not a populist democracy, and that such lawmaking by the people was unconstitutional.

As he pointed out, too, such lawmaking has the flavor of lawmaking by coin-toss: The resultant laws seem almost random, unconsidered. Might it be better to let our elected officials make the laws, and defer to a representational form of government?

As a side project, I'm working my way through Akhil Reed Amar's "America's Constitution: A Biography". In one of those wonderful coincidences, I was to the section that discusses Article V - Which outlines the manners in which the Constitution should be amended.

So, I read with great interest Amar's recounting of the facts of Article V's Text, the history the surrounded it, and even more, as he delved into exactly this topic!

Article V sets out that amending the National Constitution can be done by a two-thirds convention of Congress, which must then be approved by three-fourths of the states. And here's where a little ambiguity and interest sets in. Although it would indicate that the approval process would be done by the elected officials, it doesn't exclusively say that must be so. And, Amar points out: The Constitution itself was ratified by popular vote. Would it not be reasonable for the people to retain and return to popular democracy when the need arose?

Contemporary arguments at the Nation's founding by James Wilson would also back that up. Wilson argued that "The people may change the constitution whenever and however they please. This is a right of which no positive institution can ever deprive them." "A majority of society is sufficient for this purpose." Furthermore, Wilson's arguments where supported by the actions of many state legislatures as they re-wrote and subsequently amended their constitutions after the ratification of our new, National Constitution. Populist Democracy was in the air.

It would be unfortunate if a ruling was made that we couldn't alter our laws by popular vote: It would give a monopoly to lawmakers, who could then alter the underlying structures of government to give themselves new, greater powers - perhaps even to post-pone elections, change voting requirements, so that they could no longer be held accountable through regular elections and removed when we grew tired of them, or determined that we wanted society (and its laws) to proceed in a new direction.

So, although I agree that in general we (as in the general populace) shouldn't be making our laws, I fully believe that we need to retain the power and the possibility of full popular, or direct, democracy.

The matter is hardly settled, either. Amar indicates that James Madison's opinion is currently more popular: That Article V supplants our right to direct democracy (rather than supplements and implements it). But, as he says, there is still a lot of constitutional history to be written. And, Amar points out that interpreting the Constitution by looking at contemporary laws, both those that fed into its drafting and those that were not considered, shows us that our Founders had a different, and in many ways, much more populist idea of how democracy should be.

References: Amar, Akhil Reed. America's Constitution - A Biography. Random House, 2005. Pages 302-305. Quote page 303.