C.1. Differentiation of Civic Rights and Civic Powers

In a democratic system, governance relies on the participation of the governed. In addition to their Civil and Civic Rights, Citizens enjoy the Civic Power to shape and direct the government, but only if they share the burdens required to make the government function.

Civic Powers represent authority over government earned through civic responsibility. Civic Rights represent personal freedoms that belong to all Citizens regardless of civic participation.

A free society is free in the sense that people can mostly act without restrictions from the government. It isn’t free in the sense of being without cost. “Freedom isn’t free.” We say that all the time to justify sending our military into harm’s way, and rightly so. But the costs aren’t just to the military. I can tell you, as a veteran, I see red when someone tells me that freedom isn’t free, then in the next breath tries to justify why they shouldn’t have to serve on a jury, for example. That civic duty is every bit as vital to maintaining our free society as military service. This Charter recognizes that cost, and states with its full chest that citizens who want to participate in the governance of the state, owe service to our collective civic life. If you don’t want to do the inconvenient and unglamorous work of civic life, you don’t deserve a seat at the table come election day. Not as a voter, and not as a candidate.

"But this creates second-class citizens!” Hardly. Every citizen, regardless of civic participation, enjoys the same Civic Rights. Civic Powers, on the other hand, aren’t rights. They are conditional and have to be retained by doing the work of democracy.

“But voting has always been a right!” Has it been? Is there anything that can be considered a right that can be taken away or denied? People are denied the vote all the time under the current system. Felons can’t vote in some states. In some states, you can only vote with a picture ID. Voting has always been called a right, but it has never functioned as one. This Charter will not pretend it is a right, but it does do the work of expanding eligibility (felons are not barred from voting, for example). It also makes the deciding factor in whether or not you can vote a fair and even measure of whether you participate in the unsexy parts of civic life. And holding office requires vast sums of money to start a campaign. That’s not a right. That is a purchased privilege. This Charter doesn’t entirely erase the need to fundraise, but it dramatically reduces it (we’ll talk more about that in Articles II, III, and VI). And just like voting, the basic qualification is whether you participate or not, rather than whether you are rich or persuasive enough to fund an expensive campaign.

“How do I know that these aren’t just a way to disenfranchise the poor? Or people of color?” That’s an excellent question, and it will be constitutionally addressed in the clause; in Article IV, Section 7.A.3; and in Article VI, Section 1.A. Since that’s spread out throughout the Charter, I’ll deviate a little from the format I use in the rest of this commentary to address the question here. I’ll ask for your patience, because the protections are real, but explaining them needs a lot of discussion.

First of all, in Article I, Section 3.C.2(a), the Charter defines who is a qualified voter – “Citizens who have reached the age of eighteen may vote in Federal elections and referenda.” That’s it, the whole banana. The end of that subclause continues, “Only this Charter may limit or suspend the Power to vote.” So, the basic power to vote is more ironclad than it is in the Constitution of 1789. In its original form, all it said was that the members of the House are to be chosen by “the People of the several States.”[1] That broadly implies that “the People,” who are undefined, can vote for their Representatives. That leaves qualification up to the States. Then, the Fifteenth Amendment says that voting can’t be denied “on account of race, color, or previous condition of servitude.”[2] So a negative prohibition was established – voting couldn’t be denied under certain circumstances, but there still isn’t any clear definition of who can vote. Then, came negative prohibitions on denying the vote “on account of sex,”[3] imposing “poll tax or other tax” on voters,[4] and finally against denying to citizens of at least eighteen years of age “on account of age.”[5] Today, the Constitution of 1789 has no affirmative mandate – no “thou shalt” statement, if you will – that mandates who can vote. It only tells the states who they can’t deny the vote to. On the other hand, this Charter is explicit: if you’re eighteen or older and a citizen, you are presumed to have the power to vote. It grants the states power to establish procedural rules, “provided those rules are consistent with this Charter and do not burden or restrict the exercise of the citizen’s Power to vote.”

Article VI, Section 1.A establishes a means to prevent gerrymandering through periodic, independent redistricting commissions, rather than the nakedly partisan process in play in most of the nation now. This preserves and strengthens the voice of the citizen in the ballot box.

I’ve shown that the basic power of the vote is broader in this Charter, but we still haven’t resolved the question of loss of civic powers and why that isn’t broadly disenfranchising. So let’s look next at Article I, Section 2.C.2(d), which is where the Charter deals directly with the loss of civic powers.

The Charter says two things that are important here. I’ll deal with the second one first, because we’ve already discussed it. The last sentence of the subclause says, "Powers suspended following this Charter cannot be restored by statute.” Aha! That’s where they get you! Not so fast. Remember, the last civic right that the Charter enumerated is the Right to Restoration. The Charter language here is simply closing off any attempt by Congress to create an end-run around the loss of civic powers. You can restore your power to vote (as long as you weren’t convicted of treason or terrorism), but only through the restoration process outlined in the Charter.

So, what is the other thing discussed in Article I, Section 2.C.2(d), the first one I skipped over? It flatly states what we have already discussed – you can lose your civic power to vote under certain circumstances. Specifically, a finding of Failure of a Civic Duty[6] will have that effect. So will conviction for Treason[7] or for Terrorism Against the United States.[8] I trust no real explanation of loss of the powers to vote or hold office should be needed for the two high crimes listed. So that leaves us with Failure to Fulfill a Civic Duty and Failure to Uphold Oath of Office.

Firstly, this is considered a “civic offense.” That is, it isn’t a crime, and no punishment or fine accompanies it, only loss of civic power. The citizen has chosen not to participate in all of the work of democracy, so they can’t participate in any of it. The real question at hand is this: what defines this civic offense, and how is it proven? Failure to Fulfill a Civic Duty is explained explicitly in Article IV, Section 7.A, and we will look at it here.

Failure to Fulfill a Civic Duty requires a unanimous jury to find, beyond a reasonable doubt, that the person failed at least twice to perform constitutional civic duties and that they did it with malice, negligence beyond mere oversight, or recalcitrant intent. Constitutional civic duties are called for throughout the Charter and include randomized service on juries, redistricting commissions, election work, and so on. Not only does the definition require at least two incidents, but they have to be:

1. Provably malicious (“I want the system to fail”), or

2. Negligent beyond mere oversight (not “I forgot,” but “I failed to do the reasonable things that would have made it possible for me to do this”), or

3. The result of recalcitrant intent (“I don’t care what the damn law says, I’m not going to do it!”).

There’s a clear definition in the Charter text, and it isn’t unreasonable. But what about inability to serve or undue financial hardship arising from service? Article I, Section 2.C.3(a) gives a broad and precise definition of grounds for excusal from service, including the procedure for securing that excuse. 2.C.3(c) establishes protections and compensation for service – you can’t be fired or retaliated against for service, and you get paid the daily equivalent of 1/3 of the salary of a member of the House of Representatives (which is about $179.49, at present). Not enough to get rich, but sufficient to provide financial protection for serving, and certainly more than the $15-50 per day that is common now.

So, while it is possible to lose your power to vote, the mechanism isn’t arbitrary or careless. You have to really show a pattern of contempt for the hard work of democratic participation, and the financial burdens have been removed for doing so.

A free society, like the one we claim to be, that freedom depends on you participating, not only at the voting booth, but also in the jury box, among other places.

---

[1] U.S. Const., art. I, § 2, cl. 1.

[2] U.S. Const., amend. XV.

[3] U.S. Const., amend. XIX.

[4] U.S. Const., amend. XXIV

[5] U.S. Const., amend. XXVI.

[6] Article IV, Section 7.A.3.

[7] Article IV, Section 7.A.1.

[8] Article IV, Section 7.A.2.