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Why We Need A New Constitution: Part 9 of 21

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THE SEPARATION OF POWERS AND
THE DESTRUCTION OF THE PRINCIPLE OF MAJORITY RULE

In our modern century, this "complicated check on legislation" has indeed proven to be "injurious," leading not only to delay and a lack of Accountability, but also to a departure from the central maxim of democracy - the Principle of Majority Rule:

The inevitable tendency of our system has been 'to widen the gulf between the government and the people, to discourage serious political thinking and debate save at moments of grave crisis, to increase the power of corrupt machine politics, and to cultivate an easy-going indifference to abuses. . . .

The existing Constitution, however great its virtues in any particular respect, does not permit of genuine popular government. The rigidity of the electoral system, the divorce of the executive from the legislature, and the well-nigh uncontrollable power of the courts combine to centralize political power in the hands of a comparatively few individuals who are only remotely responsible to the people, and whose acts can be reviewed by the people only at long and fixed intervals.'[1]

The final consequence of our system has been the subversion of what Hamilton referred to as "the fundamental maxim of republican government" - that "the sense of the majority should prevail."[2] As Whicker (1987) noted,

Bicameralism . . . diminishes accountability and effectiveness by providing several more decision points at which powerful special interests may thwart legislation which actually reflects majority opinion. Bicameralism then serves the interests of powerful, often economically based minority factions, which can muster the money, knowledge and resources to engage in machinations in the halls of Congress. Bicameralism does nothing to serve the interests of minority interests which have traditionally been excluded from societal power structures, and often results in thwarting majority rule. [3]

But Hamilton had warned against solutions which violated fundamental maxims:

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[W]hat at first sight may seem a remedy, is, in reality, a poison. . . . The necessity of unanimity in public bodies, or of something approaching towards it, has been founded upon a supposition that it would contribute to security. But its real operation is to embarrass the administration, to destroy the energy of the government, and to substitute the pleasure, caprice, or artifices of an insignificant, turbulent, or corrupt junto, to the regular deliberations and decisions of a respectable majority. In those emergencies of a nation, in which the goodness or badness, the weakness or strength, of its government is of the greatest importance, there is commonly a necessity for action. The public business must, in some way or other, go forward. If a pertinacious minority can control the opinion of a majority, respecting the best mode of conducting it, the majority, in order that something may be done, must conform to the views of the minority; and thus the sense of the smaller number will overrule that of the greater, and give a tone to the national proceedings. Hence, tedious delays - continual negotiation and intrigue - contemptible compromises of the public good. . . . upon some occasions things will not admit of accommodation; and then the measures of government must be injuriously suspended, or fatally defeated. It is often, by the impracticability of obtaining the concurrence of the necessary number of votes, kept in a state of inaction. Its situation must always savor of weakness, sometimes border upon anarchy. . . .

When the concurrence of a large number is required by the constitution to the doing of any national act, we are apt to rest satisfied that all is safe, because nothing improper will be likely to be done; but we forget how much good may be prevented, and how much ill may be produced, by the power of hindering the doing what may be necessary, and of keeping affairs in the same unfavorable posture in which they may happen to stand at particular periods.
[4]

Unfortunately, our form of Government has not only allowed a "pertinacious" Minority to stifle Majority preferences, it has actually institutionalized the phenomenon. What at first sight seemed a remedy was, in reality, a poison. The multiple decision points required by the Separation of Powers Principle as instituted in the Constitution have given rise to a Government not of, by, and for the People, but of, by, and for the Special Interest Groups.

END PART 9: TO BE CONTINUED

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FOOTNOTES

[1] A New Constitution Now, p. 39, quoting William McDonald, A New Constitution for a New America (1921).

[2] Federalist 22, pp. 105-6 (Hamilton).

[3] The Constitution Under Pressure, p. 198.

[4] Federalist 22, pp. 107-08 (Hamilton).

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Barry Krusch is president of Intelligent Communities, Inc., sponsors of The Intelligent Community Initiative. He is also author of 2 books, The 21st Century Constitution and Would The Real First Amendment Please Stand Up?

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