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We the People: The Consent of the Governed in the 21st Century: The People’s Unalienable Right to Make Law.

George A. Nation III, Lehigh University

Abstract

My article argues in favor of federal direct democracy. Congress should recognize and facilitate the People’s right to make law via the tools of direct democracy (the initiative and referendum) at the federal level. Arguably, the national People already have this right though they have never used it. What is needed is the establishment of a clear process for the People to follow when exercising this right.

In the United States today the consent of the governed, on which the strength of our democracy depends, is weaker and more diluted than it needs to be or than it should be. Under our representative democracy voters in fact play only a sporadic and limited role in the political life of the nation. Currently, especially at the federal level, voters participate in the political process only periodically via elections. Periodic elections are a weak manifestation of the ideal consent of the governed that democracy envisions. For most of our history, this weak form of democracy was justified primarily by practical limitations related to travel, communication, information availability and voting. The Athenian model of direct democracy may have been our ideal, but in practice there were simply too many voters spread over too great a distance to allow citizens to participate directly in making law. As a result, our democratic ideals could be implemented at the federal level only through a representative democracy. Today, however, for the first time in our history it is possible to overcome the practical/logistical limitations of the past that required a representative democracy. The revolutionary developments in communication technology that occurred in the late 20th and early 21st centuries have made it possible for the United States to dramatically alter the way it puts its democratic ideals into practice. For example, before the Patient Protection and Affordable Care Act (ObamaCare) was considered by Congress, the People could have and should have been given an opportunity to directly express their views on the proposed law via an advisory referendum. Today, thanks to the communication revolution it is quite possible to present the bill on line or in print to the People, allow them to discuss it in person via email, linkedin, or facebook etc. and to vote (online or in person) on the bill. My article argues that today, given our technological advances in communication, the failure to seek direct guidance from the voters violates basic principals of democracy and republican government.

Today, for the first time we can, at the federal level, move dramatically toward a strong direct democracy. Also, communications technology continues to improve and as a result, so will our ability to implement federal direct democracy. A federal direct democracy will reduce the moral hazard that is inherent in a representative democracy, will create better law, better citizens, and will break the partisan gridlock that is preventing Congress from being able to deal effectively with important national problems. In short, federal direct democracy will allow us to enjoy the full benefits of democracy rather than the more limited benefits provided by a representative democracy. This article argues that the time is now for the United States to adopt legislation that recognizes the Peoples’ right to make law and specifies the procedures the People may use in exercising this right.

Suggested Citation

George A. Nation III. 2011. "We the People: The Consent of the Governed in the 21st Century: The People’s Unalienable Right to Make Law." ExpressO
Available at: http://works.bepress.com/george_nation/2

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