When I'm talking about political institutions, I want to make two sets of distinctions. I see, both from commenters and other conversations, substantial confusion between these two distinctions, so I want to be more explicit about what I'm talking about.
The first distinction, which I'll arbitrarily label "republicanism" vs. "democracy", distinguishes who has day-to-day control over high level public policy decisions. In a republic, the people as a whole choose (or exercise some kind of selective control) those who have institutional authority to make binding public policy decisions on a day-to-day basis. In a democracy, the people themselves, by some sort of institutional means, make day-to-day public policy decisions. (In an authoritarian government, the people exercise no institutional control on the government whatsoever.)
The second distinction is between "pure" and "constitutional" government. In a pure government, the government — i.e. those who make day-to-day public policy decisions — may make any sort of decisions it pleases, and those decisions will be binding. In a constitutional government, there is some sort of well-defined and stable limitation on the kinds of public policy decisions that the government can make and will be binding.
By these distinctions, the present US Government is a constitutional republic. The people as a whole make very few public policy decisions; when they do directly make these decisions, as through ballot initiatives, the process is slow, cumbersome, and infrequent. In contrast, I propose a constitutional democracy: The people themselves take day-to-day responsibility for public policy decisions; and even at the regional and national level, authority is never delegated to individuals. (I'll get into how that works when I describe the People's Government in more detail.) However, I still propose a constitutional democracy: the people will still have limits and constraints on the kinds of decisions they can make binding. My proposal of three more-or-less equal branches of government to provide checks and balances hints, I hope, at the constitutionality of my proposal, but I should of course be explicit.
By placing the implementation of policy in the Civil Service, I implicitly place a constitutional limit on the People's Government: The people may make binding public policy decisions, but it's much more difficult for them to make implementation decisions. The "city government" for example, could not actually issue a building permit: they would have to somehow direct the Civil Service to do so. At the very least, simply making the division into policy and implementation creates a little of a roadblock; I'll talk about additional details that raise additional constitutional roadblocks when I talk about the People's Government and Civil Service in more detail.
By talking about a Judicial branch that closely resembles the US judiciary, I also implicitly bring in a lot of constitutional control. The US judiciary exercises judicial review; the judiciary can directly hold an act of legislation to be unconstitutional and invalid, and refuse to enforce it. For judicial review to be meaningful, there must be explicit constitutional limits on the actions of the People's Government. Second, a judiciary implies a rule of law. Again, I'll talk in more detail later, but the existence of a judiciary, especially a Judiciary of equal standing with the People's Government, entails that the People's Government acts primarily by making general laws rather than arbitrarily deciding cases. (This limitation will apply more to standards of conduct imposed on individuals; the People's Government will have executive authority over the Civil Service and the public ownership and control of capital.)
My fundamental point is not to eliminate constitutional controls on government; I think constitutional government and the independent judiciary are far and away the best innovations of bourgeois capitalism. My fundamental point is to put the people in much more direct control over the institutions of government and the formation of public policy.
Showing posts with label My Constitution. Show all posts
Showing posts with label My Constitution. Show all posts
Tuesday, February 08, 2011
Sunday, February 06, 2011
My Constitution: checks and balances
I want to take a break — perhaps permanently — from writing legalese. Instead, I want to write about my ideas for a communist constitution in ordinary English, at a more abstract level.
At the very highest level, my view of communism is simply thus: the government owns the capital; the people own the government. And I mean really own, especially regarding the latter; not own in theory, not in some abstract philosophical or moral sense, but own in the same "hands on" sense that I own my car or my house, that the (majority) stockholders own a company. The tension, though, comes in keeping a society of some 300,000,000 people functioning efficiently, at the high level (by historical standards) of social cooperation and material prosperity enjoyed by many people (but shamefully, not nearly enough). I don't want to trade cheap air travel or the Internet for freedom: I'm greedy; I want it all.
Keeping a large economy and a large and diverse society functioning relatively smoothly and efficiently seems to require both highly centralized decision-making and specialized expertise, presently provided by our financial institutions (occasionally waving a spoonful of government oversight in their general vicinity). The question in my mind is not whether we need centralized, specialized decision-making, but how to structure the institutions that provide these services. (My anarchist readers may well disagree, but please save your arguments for another post; the question of anarchism will come around again on the guitar in the fullness of time.)
Because I'm American, and because I've studied American government academically and informally for many years, I'm very much enamored with the concept of checks and balances. But simply having any old checks and balances is not enough; we want the right kind of checks and balances. Checks and balances between the legislative (policy setting), executive (policy execution) and judicial (principled independent oversight of policy) seems good in theory, but poorly implemented in actual practice. (The authors of the US Constitution cannot, I think, be blamed; they could not have anticipated modern conditions two centuries in the future.) The problem with the US Constitution is that the Presidency and Congress arguably have been since Jefferson's presidency both become policy setting institutions. Policy execution is (as it has been since every society in recorded history) the domain of the civil service. One enormous problem with the US Constitution is that the role and operation of the civil service is opaque, even at the most local level. So the interaction between the legislative and "executive" have become not a dialectic between policy and execution, but between two policy-setting institutions.
In every corporate and business setting I've studied or participated in both the board of directors as well as the chief "executive" officer create and set policy; it is the vice presidents to actually carry out policy. The interesting dialectic thus occurs not between the CEO and the Board, but between the CEO and the vice presidents. I think there is value in explicitly and directly institutionalizing this dialectic.
So instead of a division between the Congress and the Presidency, I propose an alternative division between the "People's Government" and the Civil Service. The People's Government would assume the role of both the "board of directors" as well as the "chief executive officer", responsible for setting not just fixed, explicit policy but also resolving day-to-day (or month-to-month) situations according to their implicit notions of policy. The Civil Service would then take the role of the "vice presidents" and their various effective departments, responsible for carrying out policy, referring questions that pertain to high level policy to the People's Government on a day-to-day basis.
As to the third leg, I think there's little room to improve on the deep structure of the US judicial system. Yes, the US judiciary provides notable support to the capitalist system, but unlike the Presidency and Congress, this support seems to come properly to the judiciary's "natural" role of independent oversight, rather than being constructed to support capitalism. I find the argument compelling that only the US judiciary (and Western European legal systems in general) has prevented Western capitalism from quickly degenerating into outright slavery and the most crude tyranny. The judiciary ought to be ideologically neutral in structure; just that judges do in fact support capitalism in a capitalist society is therefore not by itself a valid argument against the structure of the judiciary. (Arguments that specific features of the judiciary do indeed privilege capitalism of course remain live.)
I'll talk about the specific structures of these three legs in future posts.
At the very highest level, my view of communism is simply thus: the government owns the capital; the people own the government. And I mean really own, especially regarding the latter; not own in theory, not in some abstract philosophical or moral sense, but own in the same "hands on" sense that I own my car or my house, that the (majority) stockholders own a company. The tension, though, comes in keeping a society of some 300,000,000 people functioning efficiently, at the high level (by historical standards) of social cooperation and material prosperity enjoyed by many people (but shamefully, not nearly enough). I don't want to trade cheap air travel or the Internet for freedom: I'm greedy; I want it all.
Keeping a large economy and a large and diverse society functioning relatively smoothly and efficiently seems to require both highly centralized decision-making and specialized expertise, presently provided by our financial institutions (occasionally waving a spoonful of government oversight in their general vicinity). The question in my mind is not whether we need centralized, specialized decision-making, but how to structure the institutions that provide these services. (My anarchist readers may well disagree, but please save your arguments for another post; the question of anarchism will come around again on the guitar in the fullness of time.)
Because I'm American, and because I've studied American government academically and informally for many years, I'm very much enamored with the concept of checks and balances. But simply having any old checks and balances is not enough; we want the right kind of checks and balances. Checks and balances between the legislative (policy setting), executive (policy execution) and judicial (principled independent oversight of policy) seems good in theory, but poorly implemented in actual practice. (The authors of the US Constitution cannot, I think, be blamed; they could not have anticipated modern conditions two centuries in the future.) The problem with the US Constitution is that the Presidency and Congress arguably have been since Jefferson's presidency both become policy setting institutions. Policy execution is (as it has been since every society in recorded history) the domain of the civil service. One enormous problem with the US Constitution is that the role and operation of the civil service is opaque, even at the most local level. So the interaction between the legislative and "executive" have become not a dialectic between policy and execution, but between two policy-setting institutions.
In every corporate and business setting I've studied or participated in both the board of directors as well as the chief "executive" officer create and set policy; it is the vice presidents to actually carry out policy. The interesting dialectic thus occurs not between the CEO and the Board, but between the CEO and the vice presidents. I think there is value in explicitly and directly institutionalizing this dialectic.
So instead of a division between the Congress and the Presidency, I propose an alternative division between the "People's Government" and the Civil Service. The People's Government would assume the role of both the "board of directors" as well as the "chief executive officer", responsible for setting not just fixed, explicit policy but also resolving day-to-day (or month-to-month) situations according to their implicit notions of policy. The Civil Service would then take the role of the "vice presidents" and their various effective departments, responsible for carrying out policy, referring questions that pertain to high level policy to the People's Government on a day-to-day basis.
As to the third leg, I think there's little room to improve on the deep structure of the US judicial system. Yes, the US judiciary provides notable support to the capitalist system, but unlike the Presidency and Congress, this support seems to come properly to the judiciary's "natural" role of independent oversight, rather than being constructed to support capitalism. I find the argument compelling that only the US judiciary (and Western European legal systems in general) has prevented Western capitalism from quickly degenerating into outright slavery and the most crude tyranny. The judiciary ought to be ideologically neutral in structure; just that judges do in fact support capitalism in a capitalist society is therefore not by itself a valid argument against the structure of the judiciary. (Arguments that specific features of the judiciary do indeed privilege capitalism of course remain live.)
I'll talk about the specific structures of these three legs in future posts.
Sunday, December 26, 2010
My Constitution: Article I: The Citizen
Preamble
Article I: The Citizen
Definition of Citizenship
§1 An individual is a citizen of the Nation if he or she was born in the geographical territory of the Nation, was a resident of the territory at the time of adoption of this Constitution, has a natural parent who is a citizen, has been adopted as a minor child by a citizen. A person may become a naturalized citizen if he or she is of the age of majority, is within or enters the geographical territory of the Nation with the intention of permanent residency, can fulfill the obligations of citizenship, and agrees without coercion to abide by those obligations.
Economic Rights and Obligations
§2 Each citizen is entitled without precondition to the economic necessities of a dignified life: food, shelter, clothing. Health being a public good, each citizen is entitled to the equal opportunity to receive medical treatment necessary for life, freedom from pain and suffering, and good health. Education being a public good, each citizen is entitled to he equal opportunity to receive such education that they may successfully acquire.
§3 As each citizen is entitled to the economic necessities of a dignified life, each citizen is obligated work as many hours of labor as necessary on average to provide those necessities, or to pay taxes of at least the median wage times that number of hours. Only provable medical necessity may exempt a citizen from this obligation.
Inalienable Rights
§4 Each citizen has the inalienable right to freedom of speech, of the press, and of peaceable assembly, so long as the exercise of these rights do not foreseeably threaten immediate and proximate harm to the life or health of any person, so long as the exercise of those rights do not immediately and unavoidably comprise the quiet enjoyment of any individual, and so long as falsehood does not foreseeably threaten immediate harm to the reputation of any person. Each citizen has the inalienable right to listen to, read and examine any speech or writing as he or she sees fit. Each citizen has the inalienable right to hold any religious belief, or no religious belief at all, and may exercise and act upon such belief so long as such exercise does not violate any secular law or provision of this Constitution.
§5 Each citizen has the inalienable right to speak and read any language of his or her choice, and to have any laws, acts or proceedings of the government translated to that language at public expense.
§6 Every citizen has the inalienable right to mutually consensual sexual activity, and the right with mutual consent to marry any person or persons of of his or her choice and enjoy the companionship of that marriage. Each citizen has the inalienable right to reproduce, to bear or father children, if he or she is physically capable of reproduction.
Rights Alienable by Due Process of Law
§7 Each citizen of the age of majority has the right to participate in the democratic process as described in Article II unless found unable to participate by due process of law based only on medical inability to exercise that right to his or her own benefit.
§8 Unless deprived by due process of law, each citizen has the right to reside or move freely anywhere within the geographical territory of the Nation. Unless deprived of freedom of movement by due process of law for a felony, any person, citizen or non-citizen, may leave the geographical territory and jurisdiction of the Nation at any time.
§9 Unless deprived by due process of law, each citizen has the right to own personal property necessary for the efficient and comfortable conduct of his or her daily life.
§10 Unless mandated by due process of law for crimes committed within the jurisdiction of the Nation, or crimes committed against a citizen of the Nation, no person may be compelled to or prohibited from entering the geographical territory or jurisdiction of the Nation.
§11 Unless deprived by due process of law, warrant specifying probable cause, or the reasonable suspicion of immediate and proximate danger to the life or health of any person, every citizen has the right to the privacy and security of his or her dwelling, personal effects, and information reasonably and broadly considered private.
§12 Unless deprived by due process of law, every citizen has the right and obligation to bear arms under military or police discipline for the defense of the Nation or security of the community. Any person who by reason of conscience refuses to bear arms under any circumstances is obligated to serve in a manner acceptable to his or her conscience. It is an affirmative defense that the specific or general fulfillment of this obligation would cause harm to any person or persons that would outweigh the value of the defense of the Nation or the security of the community.
§13 Unless deprived by due process of law, every citizen has the right to engage in profitable Private Enterprise as set out in Article II of this Constitution.
Article I: The Citizen
Definition of Citizenship
§1 An individual is a citizen of the Nation if he or she was born in the geographical territory of the Nation, was a resident of the territory at the time of adoption of this Constitution, has a natural parent who is a citizen, has been adopted as a minor child by a citizen. A person may become a naturalized citizen if he or she is of the age of majority, is within or enters the geographical territory of the Nation with the intention of permanent residency, can fulfill the obligations of citizenship, and agrees without coercion to abide by those obligations.
Economic Rights and Obligations
§2 Each citizen is entitled without precondition to the economic necessities of a dignified life: food, shelter, clothing. Health being a public good, each citizen is entitled to the equal opportunity to receive medical treatment necessary for life, freedom from pain and suffering, and good health. Education being a public good, each citizen is entitled to he equal opportunity to receive such education that they may successfully acquire.
§3 As each citizen is entitled to the economic necessities of a dignified life, each citizen is obligated work as many hours of labor as necessary on average to provide those necessities, or to pay taxes of at least the median wage times that number of hours. Only provable medical necessity may exempt a citizen from this obligation.
Inalienable Rights
§4 Each citizen has the inalienable right to freedom of speech, of the press, and of peaceable assembly, so long as the exercise of these rights do not foreseeably threaten immediate and proximate harm to the life or health of any person, so long as the exercise of those rights do not immediately and unavoidably comprise the quiet enjoyment of any individual, and so long as falsehood does not foreseeably threaten immediate harm to the reputation of any person. Each citizen has the inalienable right to listen to, read and examine any speech or writing as he or she sees fit. Each citizen has the inalienable right to hold any religious belief, or no religious belief at all, and may exercise and act upon such belief so long as such exercise does not violate any secular law or provision of this Constitution.
§5 Each citizen has the inalienable right to speak and read any language of his or her choice, and to have any laws, acts or proceedings of the government translated to that language at public expense.
§6 Every citizen has the inalienable right to mutually consensual sexual activity, and the right with mutual consent to marry any person or persons of of his or her choice and enjoy the companionship of that marriage. Each citizen has the inalienable right to reproduce, to bear or father children, if he or she is physically capable of reproduction.
Rights Alienable by Due Process of Law
§7 Each citizen of the age of majority has the right to participate in the democratic process as described in Article II unless found unable to participate by due process of law based only on medical inability to exercise that right to his or her own benefit.
§8 Unless deprived by due process of law, each citizen has the right to reside or move freely anywhere within the geographical territory of the Nation. Unless deprived of freedom of movement by due process of law for a felony, any person, citizen or non-citizen, may leave the geographical territory and jurisdiction of the Nation at any time.
§9 Unless deprived by due process of law, each citizen has the right to own personal property necessary for the efficient and comfortable conduct of his or her daily life.
§10 Unless mandated by due process of law for crimes committed within the jurisdiction of the Nation, or crimes committed against a citizen of the Nation, no person may be compelled to or prohibited from entering the geographical territory or jurisdiction of the Nation.
§11 Unless deprived by due process of law, warrant specifying probable cause, or the reasonable suspicion of immediate and proximate danger to the life or health of any person, every citizen has the right to the privacy and security of his or her dwelling, personal effects, and information reasonably and broadly considered private.
§12 Unless deprived by due process of law, every citizen has the right and obligation to bear arms under military or police discipline for the defense of the Nation or security of the community. Any person who by reason of conscience refuses to bear arms under any circumstances is obligated to serve in a manner acceptable to his or her conscience. It is an affirmative defense that the specific or general fulfillment of this obligation would cause harm to any person or persons that would outweigh the value of the defense of the Nation or the security of the community.
§13 Unless deprived by due process of law, every citizen has the right to engage in profitable Private Enterprise as set out in Article II of this Constitution.
My Constitution: Preamble
Preamble
We the working people of the world have thrown off the chains of capitalist oppression and exploitation. We are grateful, to an extent, to the capitalist class for having built a mighty engine of material prosperity and productivity, but we are appalled at the price in blood, pain, poverty and misery, this effort has cost humanity. But these sins are now in the past, and it is our duty to look to the future.
We have inherited an industrial civilization, and the task now falls to us to transform it to a civilization of prosperity for not just a few but for all. We must transform our civilization to one where justice is more than the adherence to arbitrary rules, and instead the mutual benefit of all. Just as we have thrown off the chains of feudalism and phony "noblesse oblige", of chattel slavery, of vicious sectarian warfare, we must too finally throw off not just the explicit rule of the capitalist class, but also the relations of exploitation and oppression that after centuries of capitalist rule now permeate our society. We must throw of these relations not with hatred and with anger, but gently, and with love for humanity. But throw them off we must.
Only the working people of the world are fit to rule, but each and every person may join this class. There is much work to be done: to rebuild our roads and schools; to exercise fit stewardship of the Earth and all the living things on whom not just our prosperity but our very survival depend; to bring material prosperity to the remaining pockets of impoverished humanity; to treat and cure the ills of the body that still afflict us; and to rise from the cradle of humanity and explore the vast and limitless universe that beckons to us.
To achieve these noble goals, prosperity, happiness, justice, security, and the fulfillment of the best that humanity can be, we the working people of this nation do ordain and establish this Constitution.
We the working people of the world have thrown off the chains of capitalist oppression and exploitation. We are grateful, to an extent, to the capitalist class for having built a mighty engine of material prosperity and productivity, but we are appalled at the price in blood, pain, poverty and misery, this effort has cost humanity. But these sins are now in the past, and it is our duty to look to the future.
We have inherited an industrial civilization, and the task now falls to us to transform it to a civilization of prosperity for not just a few but for all. We must transform our civilization to one where justice is more than the adherence to arbitrary rules, and instead the mutual benefit of all. Just as we have thrown off the chains of feudalism and phony "noblesse oblige", of chattel slavery, of vicious sectarian warfare, we must too finally throw off not just the explicit rule of the capitalist class, but also the relations of exploitation and oppression that after centuries of capitalist rule now permeate our society. We must throw of these relations not with hatred and with anger, but gently, and with love for humanity. But throw them off we must.
Only the working people of the world are fit to rule, but each and every person may join this class. There is much work to be done: to rebuild our roads and schools; to exercise fit stewardship of the Earth and all the living things on whom not just our prosperity but our very survival depend; to bring material prosperity to the remaining pockets of impoverished humanity; to treat and cure the ills of the body that still afflict us; and to rise from the cradle of humanity and explore the vast and limitless universe that beckons to us.
To achieve these noble goals, prosperity, happiness, justice, security, and the fulfillment of the best that humanity can be, we the working people of this nation do ordain and establish this Constitution.
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