Life in a Consensual Democracy

Rousseau popularized the term social contract but gave it no tidy definition. Most of us see it as any compact that spells out a process for government. Such compacts do not concern themselves with specific laws, but provide the ground rules under which specific laws are made and evaluated.

A social contract for consensual democracy would maximize opportunities for citizens to participate in framing and passing the laws, and making the economic decisions, that affect them most: to perform important guardian functions jointly, in collaboration with fellow citizens, while minimizing reliance on individual guardian roles. Because direct participation, as we’ve defined it, mandates consensus, decisions arrived at through an iterative process of stakeholder consent would have very low cost of enforcement. That is, because the terms of those decisions would have been developed through serial, popular voting, refined and modified after each round of ballots to accommodate reasonable objections, individual acceptance and commitment to them would be high. In public law, this would result in fewer judicial challenges and secret evasions. In business, it would result in greater personal commitment and organizational effectiveness. It would not be utopia, but it would avoid the dystopias created by centuries of compulsory guardianism.

Most likely, a practical social contract, or constitution, for consensual participation would be based in part on principles drawn from contract law, incorporating such ideas as voluntary entry, reciprocity, affirmative obligations, and the means for auditing performance and enforcing key provisions, resolving disputes, and so on. The first big implication of this is that we could no longer force citizenship and lifelong, compulsory guardianship onto people at birth, but would allow them to voluntarily accept or reject self-governance upon reaching legal age. To people steeped in guardian culture, this will sound like a formula for absolute chaos, but it can be implemented in ways that support public order, and respects civil rights (at all ages), yet harness the power of commitment available only from voluntarism and consent.

For example, minors already possess an abridged set of civil rights: there are many things people who have not yet reached legal age simply cannot do. Under consensual democracy, the only change from current practice would be that, upon reaching the age of emancipation, citizens would have the option of voluntarily accepting the rights and responsibilities of full participation, or remaining (also voluntarily) under some form of guardianship until such time in the future, if ever, that they decide to join the demos. Such a society would be freer, (we currently have no choice about accepting or rejecting guardianship as adults) and those–the vast majority, we might assume–who voluntarily accept the mantle of full citizenship would be much more conscientious about, and committed to, participation.

We can imagine this important life passage taking place as a solemn yet joyous public or private ceremony, perhaps individually (the way military officers and public officials are sworn in) or as a group (the way students graduate from high school and college, or immigrants become naturalized citizens). It could even be done on a cohort basis–say, once a year or once every three years–if the demos thought that was wiser. The point is, such civic ceremonies would mark a significant psychological and political rite of passage and create a specific and legally binding locus of powers within each citizen–a kind of “pledge of allegiance to ourselves” that makes the participative social contract reciprocal among all members of the demos. This “license to self-govern” would last a lifetime, or until renounced by the individual (at which time guardianship would be reimposed) or removed by the state after judicial due process, such as a major felony conviction.

What is the substance of this new voluntary citizenship? First and foremost, it would value and emphasize shared autonomy: individualism within a social setting. It would not abandon hierarchy–as human beings, we are incapable of that–but reject involuntary, coercive hierarchies and the institutions that preserve them. Wherever possible, our systems, procedures, and decisions would encourage heterarchy, or coordination of society’s functions by members of co-equal groups, minimizing reliance on centralized and authoritarian command and control by guardians. (Yes, there would still be guardians, if for no other reason than to participate as proxies for those who do not wish to, or cannot, participate themselves; and public officials in the executive branch would still perform many guardian functions–but with oversight and accountability to the demos, not to other guardians–more about that shortly.)

Under heterarchy, citizens would freely choose careers, social and civic roles, place of residence, and marital status, and make consumption and lifestyle choices as they always have. Hierarchies will inevitably form within these voluntary associations, but unlike guardian hierarchies, they would be informal and based on mutual recognition and acceptance of individual merit, accomplishments, and whatever other qualities seemed relevant to the group’s stakeholders–including the skills of consensus-building. These are all qualities that would cause others to look to those people voluntarily for leadership and advice. As long as such hierarchies are informal, permit free entry and exit, hold people democratically accountable for what they do, and facilitate the broader functions of participation, they should pose no threat to freedom and fairness.

To make large-scale heterarchy practical, we would cultivate in our children an appetite for genuine consensus, teaching them (and demonstrating ourselves) the skills and patience needed to achieve it. At the same time, we would devalue the hollow, artificial unity generated by unreflective national and group chauvinism–the divide-and-conquer, faction- and empire-building tools of guardians. Instead, we would hold the common good and general will–as established through actual polling and participation–to be our main criteria for regulating society, being constantly alert for would-be guardians who try to plead special interests as common problems and substitute particular preferences for the general will.

Of course, direct participation has practical limits, and it is here that our commitment to self-governance will face its first big test. It’s hard to imagine a system of consensual democracy that, even theoretically, allows every citizen to exercise all possible democratic rights in every possible situation and location. Everyone would be so busy minding everyone else’s business, as well as their own, that no business at all would get done–a logical absurdity. Instead, we might imagine a more fluid system in which people decide their direct participation is critical in some areas, optional in others, and unnecessary or irrelevant in the remainder.

In the first case, they would register themselves as permanent members of the demos, or set of demos, that affect them most. This is not the bookkeeping nightmare some might imagine. We already do it when we register to vote, pay our taxes, sign up for Social Security, become a shareholder-of-record in a corporation, join a club, receive credit cards or a mortgage, and so on–the processes here would be little different.

In the second case, where their interests were only occasionally involved, they would register themselves as conditional members–perhaps subject to some criteria for active participation when decisions of a certain type are required. Again, this may seem like a logistical nightmare until you consider how many categories of conditional or limited participation already exist: taxpayer (city, county, regional, state, and special assessment districts), member (various clubs and service groups, including homeowner associations), owner (general partner, limited partner, common or preferred stockholder, fee-simple land holder, etc.), lender (from personal loans to bond purchasers), and beneficiary (from a plethora of insurance types to welfare and subsidy recipients of government programs). Where there is a will, there is a way–and more likely than not, a form already exists.

In the third case, although they may follow political and economic events in many areas, they would not be considered members of those demos–although they remain potential members because their life situation, such as job or place of residence, may change. In other words, while we may be stakeholders in principle in all the processes and activities of a consensually democratic society, we are material stakeholders in only a relative few; and it is in those areas that we would exercise our statutory rights to participate.

For example, a typical citizen may feel she is a material stakeholder in virtually all the legislation that affects her neighborhood; in most of the legislation that affects her city; and in some of the legislation that affects her state or region. Because national politics potentially affect everyone, she would attend closely to issues proposed for national ballots, especially those in which she feels the common good or some significant moral principle is at stake. Although she would be registered as a material stakeholder in all these various and overlapping political demos, she would not consider herself a material stakeholder in the affairs of other cities and states unless she had some compelling reason to do so, such as a significant economic or social connection to that area. In fact, we can easily imagine the old distinctions of state and county boundaries eventually giving way to more practical divisions of municipalities and regions based on the distribution of population or on other common denominators, such as similar environmental and employment concerns. Political units of the future may very well depend less on geography than on the topology of human thought and actual economic behavior.

In the private sector, she would be a material stakeholder in the enterprise or organization from which she derives a living, as she would be in any affinity, service, and community groups to which she belongs–although here, too, she would make reasonable distinctions among issues and activities nearer to, or more distant from, her practical and moral concerns; and would participate, or decline to participate, accordingly. We might eventually see these peripheral, “boundary spanning” service and community action groups dwindle, since their mission has traditionally been to address social needs unfulfilled by guardians. As the agenda-setting and decision-making demos expands to include the population as a whole, the priorities and resources of government should become better synchronized with the needs and desires of society, making such organizations–at least their lobbying and social service components–redundant.

In both political and economic spheres, we might imagine technology developed specifically to parse stakeholder information speedily and accurately, so that members of each demos need not be inundated with all information about every issue all the time but could self-select information based on personal needs, interests, and intentions. Such technology and services are already in their infancy on the Internet and in cable broadcasting.

Our typical citizen might also consider herself a material stakeholder in the organizations and institutions she depends upon for important products and services, whether those are delivered through market action or by the government; but again, she would not need, or wish, to be a direct participant in all of their decisions all the time. Three criteria would likely guide any citizen’s level of participation in such an open-ended demos: Is the product or service really important to me? Is there a lack of plentiful alternatives? Does the business, organization, or institution have the power to compel my acceptance of their decisions, including price, or dictate the conditions of existence for a significant number of other people? If the answer to these questions is yes, then she might rightly consider herself a material stakeholder and wish to participate in the decisions she feels are most important.

Although the potential for overlapping demos seems infinite, in reality, determining which demos citizens belong to, or want to belong to, in any given instance will generally be a function of their personal “comfort meter.” If they feel pressured to accept and live with a decision made by someone else, and if that decision materially affects their quality of life–including their moral comfort zone–they are probably material stakeholders in that area and entitled to direct participation in those decisions. Why? Because unless their views have been aired and an attempt has been made to accommodate them (along with the preferences of other, like-minded people), the decision, by definition, cannot reflect the common good. Unless you consent to a course of action, or have had a reasonable opportunity to have your preferences (and those of like-minded stakeholders) accommodated, the decision cannot reflect the general will.

At this point, guardians and their boosters will only shake their heads and complain that any society operating under such participative rules will be so cumbersome, unproductive, and contentious that nobody would want to live in it. This attitude is perfectly understandable when you consider that their point of reference is the current guardian system in which economic and political elites consider “public input” purely optional. They accept other views only when they are forced upon them–as in periodic elections, consumer boycotts, and adverse legal judgments. Suppose, however, that the people living in, and voluntarily joining, a directly participative system have not been raised in the current coercive, adversarial guardian culture, but have been brought up to value personal agency and reciprocity, and are well-schooled in the arts of consensus-finding–believing passionately that a fair and inclusive democratic process is at least as important as any specific decision, although the content of that decision may be near and dear to their hearts. Under these conditions, it is not only possible to imagine such a society running smoothly and productively (but with less conflict, not more), and with far more resources available for achieving individual, group, community, and national goals than when those resources must be continually annexed, expropriated, hoarded, and defended from angry, anxious competitors.

Of course, freedom from compulsory guardianship implies the freedom to choose guardianship, in one or more areas, if a citizen thinks it is in his or her best interest. After all, life is composed of cycles wherein our emotional and financial resources wax and wane, where our attention is, and ought to be, focused on personal or family affairs; business and career concerns; community service; or intellectual and artistic pursuits. And even an “aristocracy of everyone” cannot legislate more hours to a day. When a balanced life includes a portion of all the things it takes to be human, we must ration our time. Besides, in a democracy, a healthy demos depends mainly on our joint, ongoing, and cumulative contributions, not the heroic performance of a few “super beings”–the old guardian model. Even if governments and companies don’t actively facilitate these cycles (sometimes they already do, and we would expect them to do more under consensual democracy), they should at least put no barriers in the way of people trying to cope with the changing patterns of life. In addition to taking periodic leave from our duties to the demos, we may wish to empower specific individuals to act on our behalf–to hold our revocable proxy (perhaps a standardized, simple instrument with an automatic expiration date unless it is renewed) and act as our temporary guardian in one or more areas until we wish to resume those duties ourselves.

Naturally, we can imagine a host of abuses potentially arising from this system–from ambitious would-be guardians snapping up proxies and banking them from disinterested citizens, or citizens pooling them to guarantee support for a particular candidate or initiative–but keep in mind that such “paper empires” can instantly evaporate like morning dew on a given date. And, of course, they would be subject to the same regulations, controls, and audits as other polling methods. The main advantage of such a system is that guardianship, while no longer being imposed on anyone who doesn’t want it, would not be denied to those who do.

Along these lines–particularly during the period of transition from representation to participation (especially during the phasing out of the so-called lower houses of legislation, such as the House of Representatives and state assemblies)–it may be wise to retain some kind of upper house as a “constitutional council,” restoring the original purpose of such bodies: to give “advice and consent” to the executive branch and basic legislative arm. The main function of this quasi-guardian group would be to review, endorse, or send back for further deliberation and refinement the bills originating from citizen initiatives and the executive branch. This “recycling” of a flawed proposal would not constitute a conventional veto–only a measure’s author would have the power to withdraw it. Rather, the council’s focus would be on legal form and congruence to a participative constitution when a bill’s rejection in judicial review seemed likely. Although the makeup of this body should spark a lively and healthy debate, several potential forms seem most obvious and useful.

One method would be to create a “senate” in the original, Roman sense: a body composed of ex-officials previously elected to the executive branch. This has two advantages. First, it guarantees that members of the upper house would have previous, significant government experience–particularly in living with the day-to-day, administrative effects of laws. Second, it means its members, at one time or another, had been democratically evaluated and endorsed by voters. This ex officio duty could carry a fixed term, the way members of the armed forces leaving active duty are obliged to continue in reserve status for several years. This upper house could also be “virtual” in nature; in the age of e-mail, the Internet, teleconferencing, and whatever communication miracles the future has in store, there is simply no reason for its members to ever meet face to face. This would allow the upper house to become very big indeed, harnessing Condorcet’s Rule to make its consensual decisions even wiser. The key thing to remember, though, is that its members would not be guardians in the traditional sense. They could pass no laws binding other people nor could they prevent indefinitely worthy measures from receiving public consideration. They would simply be a rotating panel that assists the demos (of which they are still part) and the executive branch in conducting their lawful business.

Another option would be to fill this advisory council with citizens randomly selected from the broadest possible spectrum of economic and social groups.  Because it would statistically reflect the demos, this council could become a forum for special pleading–a place where interest and identity groups, community activists, and others could receive a forum to air their views in parallel with the citizen initiative system, or to “test drive” their ideas before presenting them to the demos. Of course, recommendations of the council, however constituted, could only go forward on a consensual basis, and membership would rotate fairly frequently, so it would not be a return to “politics as usual.” However, such a forum would give would-be guardians an outlet for their energies during the period of transition and take a certain amount of pressure off the initiative system.

Along these lines, a corollary institution–but one that is permanent and much more decentralized, numerically larger, and useful in a variety of roles–would be a system of civic jury-commissioners. Even under guardianism, citizens currently provide oversight of certain government activities through such standing agencies as police and fire commissions, public utilities commissions, local school boards, and grand juries. While these institutions currently strive in their own way to bring expertise, common sense, and objectivity to the activities they supervise, they all have one common failing: the people who serve on them want to be commissioners. They eventually view themselves not as citizen-watchdogs but as true-blue guardians–and many, if not most, aspire to higher guardian office. (Grand juries are especially vulnerable to guardian abuse, since many trial rules don’t apply at grand jury hearings, and these standing panels often become the pawns of ambitious prosecutors.) While there’s nothing wrong with volunteerism that springs from public spirit and a desire to grow as a human being, volunteering to satisfy a need to control others, or to compel people to accept a particular point of view, is the motivation of guardians, not democrats. Even in our current system, service on trial juries excludes volunteers–and for good reason. While citizens may enjoy serving on a jury and can learn a lot from the experience, they may not seek or campaign to join a particular jury, since that brings a personal agenda to what ought to be, and must be, an impartial public duty.

Thus, in a system of consensual democracy, seats on citizen jury-commissions should go not to people who seek them, but to people who, although willing and qualified to serve, don’t choose specifically how that service will be realized. Rolls for potential juror-commissioners may be assembled and maintained much as jury lists are kept today or rolls of recruits are kept by selective service boards, with vacancies filled by periodic lotteries. This random factor will alarm many guardians, but random selection does not preclude competence if candidates are drawn from an appropriate stratum. Stratified sampling has long been the norm in marketing and social science research, and already forms the basis for trial jury selection, military draft, tax audits, and many other functions. There is no reason why the pool for a particular jury-commission can’t be stratified as to education, age, work experience, and other criteria relevant to a given function, and its members be compensated for a fixed period of service.

The key idea here is that juror-commissioner service should be viewed as a citizen duty, not a career move. It should require some, but not unreasonable, sacrifice. Its main reward will be an opportunity to increase one’s democratic learning, improve one’s personal skills and network of acquaintances, and serve the community–doing one’s part to keep the democratic system safe, just as soldiers make sacrifices to defend the nation from aggressors. If the jury-commission system is implemented step-by-step, concurrent with the democratization of education and other social and political institutions, it should produce results no worse than our current system of patronage and careerism, and probably a good deal better.

In short, to a mature and educated democrat, direct participation is not an invitation to micromanage the world, only to play a measured part in determining the common good and achieving the general will. What may seem on the surface to be a hopelessly complex web of interconnected and conflicting interests is, in reality, just a snapshot of how human lives are already being lived. When all our snapshots are assembled into a grand mosaic–a portrait of the demos–it is obvious that some individual tendrils extend more deeply than others into some parts of society. It is the right and prerogative of citizen-workers to decide which of these roots anchor and nourish their lives best at any given time, then act accordingly. It means, as Robert Bellah puts it, “a reapportion of the idea of vocation or calling, a return in a new way to the idea of work as a contribution to the good of all and not merely as a means to one’s own advancement.”124

In politics, it should be no more difficult for an individual citizen to enter the “political market”–say, as a candidate for executive office, or with a ballot initiative–than it is to enter an economic market with a new product or service. That is, the degree of difficulty should be proportional to the level of office or size of the demos affected: neighborhood issues and local offices being the easiest; national issues and offices being the toughest. Agenda-setting and decision-making at all these levels should be open to all members of a particular demos who are willing to put in the time and effort to participate meaningfully. Also like the development of a new product, getting items on the demos’s agenda should involve some practical hurdles. It is to everyone’s best interest to allow thoughtful, necessary, useful, and innovative proposals to move forward while giving impulsive, half-baked, or anti-democratic proposals opportunities for second thoughts, cooling off, and (if still desired) reformulation.

These checkpoints needn’t be too stringent or arbitrary. Rather, they should be based on a reasonable combination of publicly available guidelines plus peer (citizen-jury or constitutional council) review that would either advance a proposal or send it back for further work–decisions that, in case of deadlock or intransigence, could be overturned by gathering more signatures or appealing to the judiciary. However, if the rules governing citizen proposals are themselves developed consensually, the procedure won’t be too onerous. We may take comfort in the knowledge that many, if not most, crackpot and oppressive proposals in the past originated in response to guardian actions or the fear of potential guardian actions. With the threat of non-consensual coercive laws reduced, motivation for extreme proposals will be reduced as well.

Information gathering, personal deliberation, and iterative voting–all aimed at approaching consensus–should be promoted by stewards of the process (government and corporate officials) and should be as easy and straightforward as possible. Some have already proposed that each citizen be given a secure e-mail address to conduct democratic business, including communication with other citizens as well as with state officials–and who knows what better systems future technology may bring.125 For example, Internet expert Steven Johnson foresees decentralized systems that use ideologically neutral filters, screens, and statistical processing to make available to users information about not only the suggestions and preferences of fellow citizens, but the ranking and distribution of reactions to those views, flagging but not marginalizing controversial (and possibly very innovative and useful) new ideas.126

No matter what system is used, however, government and private-sector facilitators must maintain these facilities and rights-related records as scrupulously as they currently maintain social security, tax, and financial accounting information–a tall task, but not an impossible one. Citizen access to the system for purposes of participation, verification, and audit must not be unduly limited or expensive. Such a system would not be cheap, but the human and financial resources wasted over centuries of guardian exploitation and folly have been vastly greater. If a democratic nation can justify lavish spending on anything, it is on the process that keeps them free.

One early, time-consuming but essential task for new citizen-legislators would be to systematically review, renew, modify, or repeal centuries’ worth of guardian law that had been thrust upon us without democratic consent. This process would not be as daunting and destabilizing as some might think. Even under guardianship, old laws are regularly revisited, amended, and repealed; and many states have “sunset law” provisions wherein a statute expires after a given term unless it is specifically renewed. In any case, there is no reason to think that good laws won’t survive consensual citizen review, and that the worst laws won’t perish, as they should. Those that remain would be stripped of their guardian bias and fortified, as appropriate, with democratic values and procedures. This will be an enormous effort–probably taking decades–but it need be done only once. Future generations will not feel burdened by the laws they inherit because that inheritance will include a consensual means for modifying or repealing those rules that no longer work.

Another early and recurring task will be for citizen-legislators to devise and approve an equitable tax policy and allocate public funds to major budget categories. While detailed budget administration will always be a job for the executive branch, allocation of tax money into general budget categories–from defense and public works to welfare–should be made by the demos itself. This power is crucial if democratic choices are to have any meaning, popular control over the bureaucracy is to have any teeth, and democratic learning is to have any depth. Every law has its consequences, including economic costs and other side effects, such as unforseen conflicts with other statutes. Rules for citizen initiatives, guidelines from elected executives, and advice from government agencies (including specialized juror-commissions and a constitutional council) can all help make sure that new laws stay aligned with current allocations, or can trigger new allocations and increased funding, including new taxation or debt financing, when they do not.

One key ingredient–perhaps the most important single element–to this consensual process is abandoning the one-time, win-lose, majority-rule voting system so beloved by adversarial guardians. Serial voting (that is, voting several times on the same issue over weeks or months so that each voter can learn what other voters think, and sponsors can upgrade their proposals as they learn about voter preferences) and multiple-choice ballots (presenting complex issues in a more realistic way than as simple, binary choices) offer one approach to large-scale consensus-building. Each successive vote on major issues would see its authors modify the proposition, a little or a lot, to accommodate minority positions. Eventually, differences in opinions and preferences would narrow until something approaching the general will is established. This form of consensus-building is not perfect, and the demos would have to agree ahead of time on what sort of final majority or number of iterations constitutes an operational consensus. (Since it is not a one-time, win-lose vote, and since the basic proposition will be modified during the serial polling process, the supermajority problem should not arise.) However, even if the final, very small opposing minority still objects to the law, they cannot claim that it was passed unfairly, or impulsively, or with the undue influence of special interests, or at the pleasure of a few guardians, or that every procedural effort was not made to accommodate their views. After all, the goal of a new, consensual democratic social contract is not to eliminate all coercion in government; only to minimize it and ensure that, when coercion is necessary, it will have the moral force of the general will behind it.

Another important area for citizen-legislator oversight is war powers. Too often, guardians use military action, or the threat of war, as a way to suppress dissent or rally support for a troubled administration. Also, armed conflict gives guardians a chance to demonstrate their leadership in dramatic circumstances and “earn their place in history”–a temptation that will continue for chief executives under consensual democracy. To counteract these pressures, Jean Bethke Elshtain counsels a return to the model of the “chastened patriot,” giving war powers to citizens who have “no illusions” and recognize “the limiting conditions internal to international politics....” These “civic beings” would “...not embrace utopian fantasies or world government or total disarmament,”127 but would represent a repository of common sense and moral gravity formed when the people who work and pay taxes, raise children, fight and die as soldiers, or suffer as civilians make the ultimate decisions about war and peace. There is compelling evidence that the more democratic a nation becomes, the less inclined it is to wage war with its neighbors,128 a cause for optimism in a world that is already turning its back on autocrats and oligarches.

There is no question that security for the demos, even in peacetime, requires armed forces that can respond quickly to emergencies. There is no question, too, that the more those armed forces resemble the demos, both in composition and ambitions, the safer the state and its democratic practices will be from military usurpation. Thus, the government’s chief executive, while serving at the pleasure of the demos and commanding the state’s military, should be prohibited from authorizing acts of war under any conditions other than immediate national threat, unless specifically authorized by the demos, or at least the constitutional council. Even then, such acts must be subject to early review, and the decision to continue a war, as well as start one, should be left to the people who will bear its burdens.

In property law, consensual participation means reviving the Enlightenment idea that a corporation is a construct of the state, created to serve the public interest. Corporate social and democratic responsibilities, therefore, would not be options left to the preferences of economic guardians but would be an integral part of the corporate charter, shaped and guided by its material stakeholders. Employees would be defined not just as limited agents of the corporation, subject to (or exempted from) certain labor regulations, health codes, and so on, but a locus of democratic rights–just as customers “purchase” certain democratic rights when they buy and depend upon a product or service.

From this perspective, proprietorships, partnerships, and closely held corporations would behave more like publicly held companies, since their material stakeholders must have the opportunity to participate in decisions that were previously monopolized by owners and financiers. Bellah and Dewey, among others, view democratizing such entities as key not only to improving individual lives, but to creating a true life of the community: “It is a widely held middle-class–and American–view that through work one gains self-respect and the ability to control, at least in part, one’s environment. In this understanding, compassion takes the form of ‘helping others to help themselves.’”129

In the private sector, the trend toward consensual task- and oversight-groups that mix guardians and workers is already well established. It would be a relatively short step to constitute these groups more democratically, without resorting to representation (although that may be a necessary, transitional step), and to give these groups real power to make binding, as well as advisory, decisions once property laws have been updated.

Chief among these legal reforms would be democratizing the rules concerning boards of directors, now filled mainly with a company’s top executives, colleague guardians from other firms, and a few token directors from vocal interest groups, such as unions and social activists. Instead of choosing them by a vote confined to shareholders (usually, endorsement of a fixed slate proposed by current directors, with no competition–a plutocracy in which each share, not each person, counts as one vote), the board would be elected by all material stakeholders, from a pool of all material stakeholders, and perform the function of an upper house as the firm’s “constitutional council,” advising and facilitating the directly participative management of the company’s operational units.

Chief among these democratically controlled operational and planning decisions would be those involving the company’s resource allocations: the acquisition and use of capital and the disposition of any surpluses generated by market action. While such allocations and distributions may wind up essentially the same as under guardianism, participation by material stakeholders will vastly increase their perceived fairness and society’s confidence that economic justice has been done, reducing the threat of public outcry and intervention by the state. Only consensual democracy offers the possibility of distributing wealth unequally but justly–in accordance with the widest possible perception of fairness, especially when that perception changes over time.

However, we can assume that in many enterprises, democratic allocations and distributions may differ substantially from guardian patterns, especially when legal constraints favoring guardians have been removed. For example, stakeholders may prefer that profits be put into a sinking fund (essentially, a revolving debit account) which may be drawn down for any consensual purpose, such as funding new ventures. For individuals, some system of microloans may prove popular and become a substantial substitute for public relief. For real property, proportional ownership would be defined by material stakeholders: those with significant interests in financing and using the property. Lenders would remain material stakeholders, but their rights would be more as limited partners than as proprietors–foreclosure would generally not be an option since it pre-empts, and does not promote, collaborative and consensual solutions. A primary residence purchased through debt or occupied by rents would be viewed first and foremost as a locus of democratic sovereignty, and only secondarily as a commodity. Anyone living in a dwelling would be a material stakeholder in its democratic management, and rights of citizenship would prevail over any competing rights of property–although, if consensual decision-making is observed, these conflicts should be few and none should prove intractable. That percentage of rents constituting economic surplus would accumulate in a portable equity account, which accrues to material stakeholders (including tenants, no matter how many times they move). This account is a tangible claim against the real estate they defend as citizens, and it becomes a source of wealth that may be drawn upon in time of need, or for any other use. To encourage new housing development, we might initially treat rental property like copyrighted material: that is, the developer and financiers could have a temporary monopoly on these benefits, including surplus (as they do now), but only for a fixed and limited period.

These are just a few ideas for broadening the basis of property ownership and reconciling current differences between domain and dominion. Certainly other, better ideas will follow once the resources of the entire demos begin to address the problem.

Of course, committed guardians will immediately object to this scheme, claiming it would create a bookkeeping nightmare; but remember, similar accounts are already in place, from social security and income tax to credit-card balances and even an airline’s frequent-flyer miles–trivial pursuits compared to the grave issue of domain versus dominion. Besides, “community property” has long been used as a legal fiction for preserving equity in marriages between partners of unequal economic strength. As Harvard’s Joint Center for Housing Studies, interpreting Census Bureau statistics, concluded, current guardian-biased property laws contribute to, “...some of the worst social problems facing the nation, among them slums, discrimination, drugs, unemployment, crime and political instability.”130 It is hard to imagine a social problem more in need of, and more amenable to, democratic solutions.

To participate in all of this, material stakeholders needn’t be paragons of virtue. All they really need do is distinguish their own long- versus short-term interests, because the further we look into the future, the more obvious it becomes that our social cooperation is essential–a form of enlightened self-interest. We’ll need no corporate or political guardians to compel us to make sacrifices for the common good because we, voluntarily and separately as well as jointly, recognize what is essential to our long-term interests. At this stage of enlightenment, we need no longer pass laws enforcing our own version of the work ethic onto welfare recipients, for example, or force assimilation (or conversely, group isolation), onto new immigrants–these issues will take care of themselves through the open-ended agenda-setting and consensus-finding process of direct participation. All we really need do is to imagine the kind of society we each want to inhabit, and want our children to inhabit, and consistently bias our individual decisions in that direction. Through inclusive, democratic practices in both politics and economics, these individual visions will gradually become shared visions. This shared vision, even with the wide variations inevitable in a large demos, will become our first great consensus: that direct democracy is the best possible long-term investment in ourselves.

How might the shift away from guardianism toward full citizen participation begin? What would life in a direct democracy be like, particularly during the all-important decades of transition?

We shouldn’t expect conflict to disappear simply because we’ve reached a consensus that guardianism is harmful and participation is good. In truth, the level of conflict in daily life will undoubtedly increase during our rather extended period of transition from dependency to shared autonomy–mostly because we will no longer have, or feel comfortable about appealing to, parent-guardians for help. We canƒwhe expect our resolutions to those conflicts to be more effective and last longer than they do today; they will not devolve, as they have in the past, into cyclic power struggles where today’s smug, ambitious winners become tomorrow’s bitter, vengeful losers.

Problems will arise where we least expect them. For example, judicial review–originally conceived as a way to keep one branch of government from poaching on another or breaching the constitution–has had just the opposite effect under guardianism. Knowing there are no real penalties for encroachment, guardians wishing to expand their power regularly push their decisions past the limits, relying on activist judges to back them up. We may infer from this that as long as guardian-arbiters are available, ambitious advocates will use them to avoid consensus. One way to minimize this risk is to mandate democratic consensus-finding within the judicial branch as well as the legislative and executive; to limit the ability of any one judge, or small panel of judges, to overturn with ease a decision arrived at through the incremental, consensus-building process.

We might also anticipate problems with people who make a fetish of “original intent.” Thomas Jefferson famously suggested that all laws, including constitutions, should expire every twenty years, forcing each generation to think for itself. By now, it should be apparent that the U.S. Constitution has been re-worked so often over the years—not just by amendments, but by judicial activists stretching the boundaries of the law–that original intent can be used to defend almost any position. What “original intent-ers” overlook is that, where the Constitution is strong–where it has survived with its initial form in tact–is where it deals with process. Where it is weak, and where it has been subject to continual, torturous reinterpretation and abuse, is where it deals with content: what we are supposed to do as opposed to how we should go about it. A new or modified, more directly participative constitution–and the people who use it–would do well to keep this in mind.

Repression by guardians who see their power waning will be another major obstacle to launching consensual democracy. Even the most bloodless and benign “revolution” invites counterrevolution by those who feel they have the most to lose. The real risk to a new, more democratic social contract is not that self-governing citizens will ruin civilization, but that the last generation of guardians will use their remaining powers to repress them–to represent their personal emergency as a public disaster. During times of crisis and uncertainty, attractive and persuasive guardians will always step forward and claim to have a solution. The price of obtaining it will be what it has always been: the freedom of the demos.

In the economic sphere, last-gasp guardian reaction may take the form of an intense and prolonged “capital strike”: intentional misallocation or withholding of investments, compensation, capital goods, and other resources from consensually defined uses as a means of punishing participants and re-exerting guardian control–as least as long as old laws regarding non-democratic property rights still permit it. Such action needn’t be conspiratorial, formal, or even well-organized to have effect; and democratic-minded citizens may find themselves hard-pressed to keep their reforms on track when the economic outlook seems bleak; or, even more dangerously, to resist the urge of abandoning reform and adopting guardian tactics themselves.

Fortunately, the threat of a serious capital strike imperiling a nation like the United States is remote. For one thing, America is just too big a marketplace to be ignored for long. The temptation for some guardians to break ranks and resume productive activity will be too strong, especially if the bottom line really is their chief concern: nothing about democratic governance says a firm must be unprofitable. Although economic guardians will lose their monopoly over resources and the use of surplus, they will still have say in the process. After a suitable show of outrage, punctuated no doubt by lengthy lawsuits, we might expect these clever and acquisitive minds to go back to doing what they do best: figuring new angles for wringing profit and power out of whatever the system has to offer. Besides, in the last analysis, sovereignty is trumps. Economic guardians can do only what the law allows, or else they become outlaws–and going to jail is bad for business.

Many people–ordinary citizens not just guardians–will also complain that consensual democracy, with its frequent, serial, multiple-choice ballots and all the requisite controls, communications, and information services in place, is just too time-consuming and expensive, as is the process of citizen initiatives. They will advocate expediency over procedure and ignore the long history of hidden costs that is the legacy of guardianism: human and monetary costs which, over the centuries, dwarf those of even the most ambitious participative systems. After a rather confusing and unsettling period of transition, though, government under consensual democracy will unquestionably be cheaper because, with the rules of political economy based mostly on consensus, fewer laws (and legal loopholes) will exist, the cost of enforcement will be lower, and the wasteful flip-flops of policies and programs endemic to competitive guardianism will be a thing of the past. This, perhaps, is consensual democracy’s most wonderful paradox: the larger it gets, the smaller the machinery of state coercion needs to be.

The relationship between the demos and mass media will also change under consensual democracy. Right now, print and broadcast policies are based on long-established rights of property: they are empowered by law to promote the media owners’ view,131 or to sell as many papers (or as much advertising) as possible, which often means pandering to the sensational and accentuating the negative–things that appeal most to a disengaged and cynical mass audience. However, as the number of guardians dwindle, the owners of mass media will have fewer guardian allies to promote or guardian enemies to pillory, and the value of their partisan “editorial product” will diminish. Further, as more guardian functions are undertaken by rotating juror-commissioners and by the demos itself, the news will likely become more issue-driven and less focused on sensation and celebrity. Although top elective, executive-branch offices and senior bureaucratic positions will always attract natural guardians, the more these offices are viewed as noble and necessary–but unglamorous–positions whose powers are circumscribed by the democratic process, the fewer Napoleons and Caesars will seek them. The commercial mass media will always have a role in entertainment, information, and advocacy. But as its policies are increasingly set by stakeholder consensus and its monopoly on mass communications undercut by the Internet and other future, citizen-to-citizen technologies, its power to act irresponsibly or capriciously will be limited.

James Madison proclaimed that a sovereign people has a right to make a constitution on “great extraordinary occasions.” Legal historian Bruce Ackerman, surveying America’s civil upheavals, offers a rule of thumb for recognizing when such conditions exist.132 In order to justify altering a fundamental basis for government, he says, some 20 percent of citizens must give the proposed change “deep support.” That is, they must have given it at least as much thought as they would to any major life decision, such as getting married, changing a career, having a child, or submitting to a risky medical procedure. Additionally, another 31 percent–citizens who are less politically aware, but are responsible people who look to opinion leaders for their cues–must agree that change is needed. This provides a bare majority, enough to gain the attention of guardians and pollsters. If discontent is sufficient and a better alternative seems feasible, this majority can serve as a critical mass upon which consensus for change is built. Certainly, if such percentages are ever approached, they would represent a vastly greater number of people, even as a fraction of the population, than the number of Americans who ratified the first constitution or supported the Revolutionary War.

Like most major life changes, the transition to consensual democracy is best made in incremental steps. Participative democrats are, after all, mature citizens: evolutionaries, not revolutionaries. They do not recognize their need and capacity for self-governance overnight. They do not expect to remake in six Biblical days a culture that took millennia to create. However, incremental steps do not preclude milestones. Here are some that might serve as significant waypoints on this path to a better future.

Advocates of direct participation–Cronin, Barber, and others–have made practical proposals for establishing a national initiative system which, given the general trend toward more democratic institutions and the strong social contract that has arisen between citizens and the federal state, now seems inevitable to even the staunchest guardians.133 Most of these are modeled on successful state systems, and all operate in parallel with the existing congressional system. Whichever is adopted, it will be our college for large-scale democratic learning, just as state systems have been our nursery. However, this will not be the end of our democratic education or our experiments in self-government, only the beginning.

When it comes to deeper levels of participation, it is likely that guardians in one state, or states in a region known for strong individualist traditions such as the Northeast or Rocky Mountain West, will trust their citizens enough to make a substantial shift toward large-scale democracy in economic institutions and at other levels in government. These pilot experiments will require enabling laws (not the least of which is a waiver of Article IV, Section 4, of the U.S. Constitution, which requires all states to be republics), including corresponding amendments to each state’s constitution. The vehicle for change here would not be the usual organs of representation–laws passed by legislatures with diminishing powers–but a coherent structure of amendments and laws, passed through initiatives, that would take effect over time, perhaps even decades, giving stakeholders plenty of time to anticipate new procedures, simulate their workings, and iron out as many bugs as possible before they begin to use them.

At the national level, such changes must eventually be codified in a new or revised constitution. This could be done through the traditional amendment process, but this procedure gives most power to state and congressional guardians–the very people most likely to view such changes as dire personal threats. Even worse, constitutions forged and implemented by existing governments (that is, constitutional convention representatives who go on to rule in its name) have not fared well. Such constitutions lose value as social contracts and are quickly viewed as mere guardian legislation, subject to frequent appeals and modification. Thus, the sovereign demos itself, using sequential, consensual methods, is a much better custodian of this framing process and its ratification. To ensure social and economic stability during this period, it seems wise to view the new constitution as an extension of the old one and to continue certain guardian roles during this time. After ratification, the basic unit of democracy would shift from guardians to individual citizens. For the first time in our history, we would truly be a government of, by, and for the people.

Let nobody doubt it: shifting from guardianism to self-governance will open a Pandora’s Box. It will bring forth both anticipated and unforeseeable problems as well as a wealth of new energy and benefits–more profound than our shift from monarchy to republic. We will have tasted forbidden fruit, become aware of our political nakedness, and found shame in our status as dependents. When we realize that such knowledge has expelled us forever from our previous fool’s paradise, the serious and joyful task of building a truly self-governing society can begin.

While most people will flourish as collaborative, self-directing democrats, some will not; and establishing a thoroughly just and prosperous society through our own efforts will be as difficult as the process of growing up. History shows that the people who do best during times of turmoil often do poorly when things return to normal: when ambiguity gives way to certainty, patience and compassion replace ambition and agitation, and due process, not heroic improvisation, becomes the norm. No less a pragmatic visionary than John Maynard Keynes reminds us that “...the task of transmuting human nature must not be confused with the task of managing it.”134 Russian radical Alexander Herzen wrote in the mid-1800s that a new form of human sacrifice had arisen in his time: the proffering of human beings on the altars of abstraction and slaughtering them wholesale in the name of nation, church, party, class, progress, or to summon an inevitable future. Our instincts, alas, haven’t changed much since his day. Isaiah Berlin warned that a society’s first public obligation is to avoid extremes of suffering–wars, revolutions, assassinations, and pogroms of various kinds–and that remains good advice. A decent society, one based on moral behavior including economic justice and consensus, must not violate other, deeply held and equally important convictions, such as our right to live (or even to seriously mislead) our lives in peace. If this caveat disappoints rabid democrats who may be anxious, once again, to “refresh the tree of liberty with the blood of tyrants,” then I am sorry; but as Einstein promised, “There is no a priori reason for believing that the truth, when it is discovered, will necessarily prove interesting”–or exciting, or glorious–or will be consistent with the ambitions or teachings of great guardians from the past.

Our political economy–the sea in which we swim as social animals–is the base matter from which we have fashioned all our golden ages. Our self-direction is the spark that ignites the flame our nobler instincts and lets them shine. The ultimate guardian argument against popular government is that citizens should not be encouraged to think too much about which laws they’ll obey. For guardians, no law or tradition is so sacrosanct that it can’t be changed or ignored once “our own people” rise to power. As a result, we have inherited a vast patchwork of laws and customs that are both essential and superfluous, valid and invalid, useful and wasteful. Some enjoy a high degree of consensus–like our laws against abusing children. Others, like the antique “blue laws” of a bygone puritan past, are observed by practically no one. They are the whirlpools, backwaters, and riptides of our communal sea. If we citizens ever claim our natural right to rule ourselves, then the guardian leviathan will sink back into its depths, joining other half-forgotten Western myths–cautionary tales of older, more savage times when giants ruled the earth.

Such a vision is neither conservative nor liberal... It does not seek to return to the harmony of a “traditional” society, though it is open to learning from the wisdom of such societies. ...it insists...that human life is lived in the balance between faith and doubt. Such a vision arises not only from the theories of intellectuals, but from the practices of life that Americans are already engaged in. ...Above all, such a vision seeks the confirmation or correction of discussion and experiment with our friends, our fellow citizens.135
  1. 124. Bellah. Habits of the Heart. 287.
  2. 125. Aversa, Jeannine. Associated Press. “Give Everyone an E-mail Address, Report Says,” San Francisco Chronicle, November 22, 1995; FM-2030 “Our Political Process Suits the 18th Century,” Los Angeles Times, May 15, 1992; Katch, M. Ethan, The Electronic Media and the Transformation of Law. Oxford: Oxford University Press. 1991; Morris, Regan. Associated Press. “Singapore Ruled by E-Government,” San Francisco Chronicle, December 12, 2000; “Dell enters electronic voting venture,” (AP), San Francisco Chronicle, June 5, 2001.
  3. 126. Johnson. Emergence. 161.
  4. 127. Elshtain, Jean Bethke. Women and War. New York: Basic Books. 1987.
  5. 128. Weart, Spencer R. Never at War: Why Democracies Will Not Fight One Another. New Haven: Yale University Press.
  6. 129. Bellah. Habits of the Heart. 287.
  7. 130. Cunniff, John. Associated Press. “Home ownership may be key to solving social problems,” San Francisco Examiner, March 19, 1995.
  8. 131. Associated Press. “4 in 10 Journalists Soften, Avoid Stories Due to Pressure,” San Francisco Chronicle, May 1, 2000.
  9. 132. Ackerman, Bruce. We the People: Vol. I, Foundations. Cambridge; Harvard University Press. 1992.
  10. 133. Broder, David S. Democracy Derailed: Initiative Campaigns and the Power of Money. New York: A James H. Silberman Book/Harcourt. 2000.
  11. 134. Keynes, John Maynard. The General Theory of Employment, Interest, and Money. London: Macmillan. 1936. 374.
  12. 135. Bellah. Habits of the Heart. 296.

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