CIVICS: WHAT YOU NEED TO KNOW Second Edition CKNOWLEDGEMENTS A The Sandra Day O’Connor Institute For American Democracy wishes to express our appreciation to the following: The Virginia M. Ullman Foundation Professor Russell Muirhead | Dartmouth College Associate Professor Ilan Wurman | Sandra Day O’Connor College of Law at Arizona State University Copyright © 2019 Sandra Day O’Connor Institute. All rights reserved. ACKNOWLEDGEMENTS 2 CIVICS: WHAT YOU NEED TO KNOW here are a number of civics courses out there that list or summarize the basic building blocks of American government: how many representatives do we have, how long is the President's term, T and so on. But if you really want to understand how America's government works and what makes it unique, you need to understand what lies beneath those building blocks and where they came from. Justice Sandra Day O'Connor, the founder and namesake of the O'Connor Institute For American Democracy, has put it this way: I’ve seen first-hand how vital it is for all citizens to understand our Constitution and unique system of government, and participate actively in their communities. It is through this shared understanding of who we are that we can follow the approaches that have served us best over time — working collaboratively together in communities and in government to solve problems, putting country and the common good above party and self- interest, and holding our key governmental institutions accountable. Having a thorough knowledge of the foundations of our democracy provides people with the context and the tools to take effective action as citizens. Scholars and educational organizations over the years have compiled various short-lists of the principles that are critical to the functioning of the American system. This guide will address four of these foundational principles: 1. Representative democracy 2. Federalism 3. Individual rights 4. Separation of powers Each of these is codified in, and protected by, the U.S. Constitution. Let's look at them one at a time. CIVICS: WHAT YOU NEED TO KNOW 3 1. REPRESENTATIVE DEMOCraCY Pericles speaking to the Athenian Ecclesia (assembly). This is not representative democracy. he term “democracy” originates from the Ancient Greek meaning “rule of the people.” This contrasts with monarchy or dictatorship (rule of a single person) and aristocracy (rule of an elite). T In Classical Athens, democracy meant that the people as a whole—in practice meaning all free, adult male citizens—would gather regularly to determine and vote on all laws for the country. Voting was by majority rule, and the assembly had essentially unlimited power. Citizens would also gather to vote on the outcome of criminal trials, as most famously in the Trial of Socrates. Poor judgment by the assembled citizens in cases like this led to Athenian democracy being heavily criticized in its own time by intellectuals such as Thucydides, Plato, and Aristotle. Athenian democracy lasted 186 years, and its underlying philosophy has come to be known as “direct democracy.” This system, where the people vote “directly” on all of the laws, was never revived again at any major scale, though it does exist in some parts of Switzerland today. In its place arose representative democracy. PART 1: REPRESENTATIVE DEMOCRACY 4 n a representative democracy, citizens elect “representatives” who, in turn, run the government and vote on the laws governing society. Representative democracy has many advantages over direct democracy, Iincluding: ADVANTAGES OF REPRESENTATIVE DEMOCRACY 1. Part-time or full-time elected representatives can look into the pros and cons of each proposed law in detail in a way that citizens in a direct democracy usually do not have the time to do. Representatives “refine and enlarge the public views,” as James Madison wrote inThe Federalist No. 10. 2. A division of labor is created where lawmakers can work while the rest of the citizenry can continue to go about their regular business. In direct democracy, by contrast, people would regularly have to stop doing their jobs to come to the forum and vote. 3. Citizens who wish to run for office and enter government can prepare ahead of time, seeking out additional education to study and understand the complexities of lawmaking. 4. Government is simpler, nimbler, and faster thanks to the need to coordinate a vastly smaller number of lawmakers (usually several hundred compared to a 6,000-person quorum requirement at certain points in the Athenian system). 5. In the forum of a direct democracy, a persuasive orator could convince large numbers of people to vote one way or another based on little evidence, leading to a mob mentality. As James Madison put it inThe Federalist No. 55, “Had every Athenian citizen been a Socrates; every Athenian assembly would still have been a mob.” In Madison’s view, elected representatives are more likely to “best discern the true interest of their country,” less likely to fall prey to narrow self-interest, and will therefore make choices “more consonant to the public good” than “the people themselves, convened for the purpose.” Representative democracy first arose in the Roman Republic (509-29 BC), where citizens could vote on the holders of offices at all levels of government. The American Founding Fathers, including James Madison and Alexander Hamilton, studied the Roman Republic in great detail and took several terms from that era, including the Senate and the Capitol. Representatives today can be elected at all levels from the local to the national: school board members, judges, mayors, state legislators, governors, and members of Congress or (in other countries) Parliament. Drawbacks of representative democracy include the fact that if you, a citizen, want to change, propose, or eliminate a law, you need to convince your representative to vote your way rather than having the power to vote on it yourself. This is complicated by the fact that elected officials inevitably represent a group of people that do not share the same opinions. (Each member of the U.S. House of Representatives today represents more than 700,000 people.) That can make choosing the proper representative for a given group—through campaigns and elections, which only occur every two years at the most—messy and contentious. However, the advantages above far outweigh these disadvantages, which is why all democracies today are some form of representative democracy. PART 1: REPRESENTATIVE DEMOCRACY 5 A democracy formally limited by a constitution is called a constitutional democracy or constitutional republic. Constitutions contain guardrails that restrict the activities and lawmaking power of government to within certain parameters and cannot be changed with a simple majority vote. In other words, unlike the “unwritten” British constitution, which can be changed by Parliament, the U.S. Constitution takes precedence over ordinary law and places limits on Congress. Laws that conflict with the Constitution can be declared by the courts to be “unconstitutional” and thrown out. Amendments to the Constitution require a two-thirds vote of both the House of Representatives and the Senate as well as ratification by three-fourths of the states. The Constitutional Convention in Philadelphia, 1787 t the time of the Founding, the term “democracy” referred only to direct democracy. For James Madison, the “father of the Constitution,” the main difference between such a “democracy” and Aa republic was that republics included elected representatives. Madison argued that having elected representatives wovuld allow the government to extend over a wider area than was possible in a direct democracy. In addition, electing representatives from many large districts was viewed as a way of preventing people across the country from forming into a small number of special interests that would dominate national politics. PART 1: REPRESENTATIVE DEMOCRACY 6 The Founding Fathers were extremely wary of direct democracy, which, left unchecked, can lead to a “tyranny of the majority” where simple majority votes can crush minorities. Because of this, they designed the American system of government with mechanisms that provide some distance between the general public and the way people are chosen to lead the government. For example, the Constitution provides for election of the President not directly by the people, but by a separate group called the Electoral College. (Each state has a number of votes in the Electoral College equal to their number of Representatives plus two for their Senators.) And before the passage of the 17th Amendment to the Constitution in 1913, U.S. Senators were elected by state legislatures rather than by popular vote. In addition, the Constitutional framework helps cool temporary passions and refine and filter the will of the people. Representatives, Senators, and Presidents are all elected for different durations and by a different group of voters. Representatives are elected directly by the people in local districts for two-year terms. Senators are elected for six years and Presidents for four years. Major, nationwide changes in law therefore require a robust majority of the people, distributed across the country and maintained for a number of years. The idea of the states having power and being able to make decisions separately from the federal government leads us to the second major piece of the U.S. governmental structure. PART 1: REPRESENTATIVE DEMOCRACY 7 2. FEDEraLISM “Federalism” refers to the concept that governmental power is shared between the governments of states on one hand and the federal (national) government on the other, with each having certain areas of jurisdiction into which the other cannot intrude. The United States was the first country to develop and use this system. Today, roughly 25 countries use some version of federalism, covering 40 percent of the world’s population. At the time the Constitution was being drafted, there was great concern over creating a federal government with too much power.