The 28th Amendment


One of the most valuable lessons I learned from working for other people was the importance of internal dissent, the right to challenge the strategies and tactics employed to reach the organization’s goal. But that was just half the exercise.  Effective dissent requires more than identifying what one dislikes, but also offering an alternative.

As suggested in yesterday’s post, passage of the GOP tax plan that accelerates, rather than addresses, income inequality in the United States should be a catalyst for an organized “get out the vote movement” in 2018.  Several news outlets and pundits have compared the backlash to the political tsunami which inundated Democrats following passage of the Affordable Care Act in 2010.  As succinctly stated by Dana Milbank in this morning’s Washington Post, “Congratulations, Republicans. Now you have your own Obamacare.”

How does this happen?  All you need to do is listen to some of the justifications espoused by Republicans who voted for the measure, especially when challenged on its merits as an economic stimulus and middle-class tax relief.  The fallback position goes something like this.

This is what voters in 2016 sent us to Washington to do.  We were given a mandate.  We need to keep our promise to cut taxes.

Nothing could be further from the truth.  In fact, I would argue NEVER in American history has an election been a mandate for a specific piece of legislation.  Even Abraham Lincoln’s election in 1860 was not a mandate on the abolition of slavery.  Much of the debate focused on the how slavery would be treated in the territories (not the existing states) and the broader question of states rights.  I am sure none of Lincoln’s voters thought they were casting a ballot in favor of the Civil War, and I doubt any of John Breckinridge’s supporters did either.

Which brings us to 2016 and some valuable insights from the exit polling?  When asked, “What is the most important issue facing the country,” voters responded “the economy” by an overwhelming 52 percent.  But even among this cohort, more Democrats (52 percent) chose this issue than Republicans (41 percent).  You can bet your 401K or IRA those Democrats were not urging the winner to drastically cut taxes for corporations and the wealthiest Americans.

Equally important, one can argue the election turned on factors having nothing at all to do with policy.  Even stipulating Russian interference did not affect the outcome (which I personally do not), there were multiple influences which could have made the difference in voter preference–e.g. the Clinton e-mails, the Access Hollywood tape.  On this basis, I voice my dissent the 2016 election was a mandate for the Tax Cut and Jobs Creation Act of 2017 or what I call TRUMPCARE, as it takes CARE of the wealthy donors who underwrote TRUMP’s campaign.

What is my alternative?  I hereby propose a 28th amendment to the Constitution which provides a mechanism by which the American people, by referendum, can reverse an act of Congress.  Such referendum would require an express percentage of voter signatures to be placed on the ballot during the next general election (presidential or mid-term).  Sound radical?  Consider the fact 26 states and the District of Columbia now include some form of public initiative in their constitutions.

  • 15 states allow voters to initiate both statutes and constitutional amendments
  • 6 states allow only statutory initiatives
  • 3 states allow only constitutional initiatives
  • 2 states allow only public referenda

The basis for this proposal is two-fold.  First, it undercuts the influence of lobbyist and wealthy donors.  It is significantly more difficult to curry favor with a majority of 135 million voters than it is to buy the support of 535 members of Congress.  I know some will say those same lobbyists and donors can spend millions of dollars (thanks to Citizens United) to influence the outcome on any public referendum.  California Proposition 8 in 2008 which made same-sex marriage illegal will be held up as an example.  But, as we learned in this case, public initiatives are subject to judicial review.  Therefore, there remains a system of checks and balances for referendums which violate the Bill of Rights and other constitutional protections.  Within constitutional boundaries, if proponents of a specific measure can garner a majority of voter support for their policies, more strength to them.

Second, voter initiatives provide a non-violent means of honoring Thomas Jefferson’s suggestion “a little rebellion now and then is a good thing.”  In those instances when either political party misinterprets the electoral process as a justification to serve special, or worse personal, interests, I argue “a little rebellion” is exactly what the founders called for.  Do not confuse this with the alt-right’s misquoting of Jefferson, “Every generation needs a new revolution.”  In his 1787 “Tree of Liberty” letter, Jefferson is very clear.  He was responding to the British press, who reported the Shays’ Rebellion as anarchy and the end of the American democratic experiment.

Where did (anarchy) ever exist, except in the single instance of Massachusetts? And can history produce an instance of rebellion so honourably conducted?  I say nothing of it’s motives. They were founded in ignorance, not wickedness. God forbid we should ever be 20 years without such a rebellion. The people cannot be all, & always, well informed. The part which is wrong will be discontented in proportion to the importance of the facts they misconceive. If they remain quiet under such misconceptions it is a lethargy, the forerunner of death to the public liberty.

In other words, Jefferson reminded us the health of a democracy depends on open, public debate, even if at times it seems chaotic.  Especially when our elected officials prefer to conduct business behind closed doors in the dead of night.

For what it’s worth.