WE THE PEOPLE: THE CONSENT OF THE GOVERNED IN THE TWENTY-FIRST CENTURY: THE PEOPLE’S UNALIENABLE RIGHT TO MAKE LAW George A. Nation III* As to the people, however, in whom the sovereign power resides, the case is widely different, and stands upon widely different prin- ciples. From their authority the constitution originates: for their safety and felicity it is established: in their hands it is as clay in the hands of the potter: they have the right to mould, to preserve, to improve, to refine, and to finish it as they please. If so; can it be doubted, that they have the right likewise to change it? A majority of the society is sufficient for this purpose . .1 TABLE OF CONTENTS INTRODUCTION ............................................................................... 321 I. CREATING A STRONGER DEMOCRACY ..................................... 329 A. Representative Democracy Is Weak Democracy ............. 329 1. Accountability ........................................................... 329 2. Weak accountability: One thousand votes but only one election................................................................. 331 3. Weak accountability: Poor transparency ................... 333 4. Weak accountability: Strong moral hazard ............... 336 *- Professor of Law and Business, Lehigh University. 1. 1 THE WORKS OF THE HONOURABLE JAMES WILSON, L.L.D. (Lorenzo Press, 1804), available at http://www.constitution.org/jwilson/jwilson.htm. James Wilson and James Madison were the principal architects of the Constitution of 1787. While Madison may be more familiar to- day, Wilson was one of colonial America‘s most eminent men. He was perhaps America‘s best and most well-known lawyer. He was a member of the Philadelphia Committee of Detail and wrote the Constitution‘s famous first three words: ―We the People.‖ While the word ―sover- eign‖ does not appear anywhere in our Constitution, Wilson, in commenting on this, noted that there was only one place where it might have been properly used and that was before the third word, ―People.‖ See Akhil Reed Amar, Of Sovereignty and Federalism, 96 YALE L.J. 1425, 1439 (1987). Wilson was one of only six men who signed both the Declaration of Independ- ence and the Constitution. The great historian Gordon S. Wood noted: ―More boldly and more fully than anyone else, Wilson developed the [popular sovereignty] argument that would eventually become the basis of all Federalist thinking.‖ See GORDON S. WOOD, THE CREATION OF THE AMERICAN REPUBLIC: 1776–1787 530 (1969). Under the United States Constitution, the People may make changes whenever and however they please. As Wilson noted: ―This is a right of which no positive institution can ever deprive them.‖ See 2 THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 432 (Jonathan Elliot ed., 2d ed., J. B. Lippincott & Co. 1891) (statement of James Wilson) [hereinafter Elliot, DEBATES]. 319 320 DREXEL LAW REVIEW [Vol. 4:319 B. Participatory Democracy ................................................ 339 1. Direct involvement of all people in the legislative process ........................................................................ 339 2. Democracy: From weak to strong .............................. 342 a. The democracy continuum ............................... 342 b. The new role of elected legislators .................. 345 c. Characteristics of strong democracy in the United States ....................................................... 346 II. THE BENEFITS OF A PARTICIPATORY DEMOCRACY ................. 348 A. Reducing Moral Hazard ................................................. 348 B. Reducing Political Bargaining ....................................... 349 C. Breaking Washington‘s Partisan Political Gridlock ...... 353 D. Better Citizens ................................................................ 357 E. Better Government ......................................................... 360 III. CREATING A PARTICIPATORY DEMOCRACY: PROBLEMS AND SOLUTIONS ....................................................................... 362 A. Ensuring Fair Process: Adopt a Single Subject Rule and Secret Ballot ............................................................. 362 B. Confusion of the Multitude—Drafting Fair Proposals .. 364 C. The Information Challenge ............................................. 368 D. Voter Apathy/Burnout ................................................... 371 E. The Guarantee of a Republican Form of Government .... 372 F. Will Political Compromise Be Possible in a Participatory Democracy? .............................................. 378 G. Responding to Legislative Emergencies.......................... 379 IV. PROTECTING INDIVIDUAL RIGHTS IN A PARTICIPATORY DEMOCRACY ............................................................................. 379 A. Ordinary Lawmaking by Federal Direct Democracy: The Courts and Judicial Review ..................................... 381 B. Amending the U.S. Constitution by Initiative: Natural Law, the Constitution, Individual Rights, and Trust in the People ................................................... 382 1. Trust the American People ........................................ 383 a. An old and necessary right ............................... 383 b. The People deserve our trust ............................ 384 c. Reducing the perceived risk ............................. 385 d. Individual rights always depend on the will of the majority: from natural law to positive law ......................................................... 386 e. Limits on constitutional amendments by the People: fundamental rights ........................ 387 2. Does amendment of the Constitution by the American People violate states‘ rights? ..................... 389 C. Fair, Deliberative Procedures ......................................... 390 2012] WE THE PEOPLE 321 V. GETTING THERE FROM HERE: MOVING FROM A REPRESENTATIVE TO A PARTICIPATORY DEMOCRACY ............ 391 A. Advisory Referenda to Break Political Gridlock ............. 391 B. Formal Adoption of a Federal Process for Participatory Democracy ................................................ 395 VI. CONCLUSION ............................................................................ 397 INTRODUCTION The People of America love democracy. Americans do not love democracy because it is efficient; in some ways, other forms of gov- ernment may respond more quickly.2 Americans do not love democ- racy because it is without problems; while a strong democracy will prevent the tyranny of the few over the many, it requires constant vigilance to protect individual rights from the tyranny of the many over the few.3 Americans do not love democracy because it is per- fect—it is not; it is only as good as we make it.4 Americans love de- mocracy because doing so is simply part of our culture; our shared love of democracy creates a bond that binds together our diverse people and our vast continent.5 Americans love democracy because it and it alone has the potential to provide a moral, fair, and just government. This is so because our democracy recognizes that the only legitimate source of governmental power comes from those subject to the government‘s exercise of power—the consent of the governed.6 Under our Constitution, neither the federal government nor the state governments are sovereign; nor do these governments somehow share sovereignty.7 In America, the People alone are sov- ereign; all governments (federal, state, and local) are mere agents of 2. For example, a monarch or dictator can make a unilateral decision and take action very quickly. In our democracy elected officials have limited power and must build consensus. The creators of our democracy preferred some disorder and inefficiency over concentrated gov- ernmental power. 3. See infra notes 284–345 and accompanying text. 4. For example, originally our democracy condoned slavery, denied women and blacks the vote, and pursued a policy of extermination of Native Americans. 5. From the rhetoric of our founding documents to today‘s conception of ―America‖ as re- vealed in phrases like ―hey, it‘s a free country,‖ the right of each person to have a say and a vote is a fundamental part of what it means to be American. See, e.g., James v. Valtierra, 402 U.S. 137, 141–42 (1971) (the initiative reflects Americans‘ ―devotion to democracy‖); Alan Hirsch, Direct Democracy and Civic Maturation, 29 HASTINGS CONST. L.Q. 185, 203 n.91 (2002) (citing a 1993 national poll of adults conducted by the Los Angeles Times that found that 65% favored a system of national referenda). 6. See infra notes 299–331 and accompanying text. 7. See Amar, supra note 1, at 1427 (―[T]rue sovereignty in our system lies only in the People of the United States . .‖). 322 DREXEL LAW REVIEW [Vol. 4:319 the People, subject always and in every case to their ultimate au- thority.8 As a result, democracy (popular sovereignty-majority rule) makes possible the creation of a society that fully embraces mutual respect for individual rights while allowing and encouraging just and fair collective action that benefits the overall society. In the United States today, the consent of the governed, on which the strength of our democracy depends, is much stronger than it was in 1788 but is still weaker and more diluted than it needs to or should be.9 Under our representative democracy, voters play only a sporadic and limited role in the political life of the nation.10 Current- ly, especially at the federal level, voters participate