Consent of the Undead versus Living Democracy

The basis of how we are governed is expressed in laws in the form of legislation and constitutions (for the purposes of this discussion common law and the relationship it has with democracy is not being considered).

Constitutions are generally entrenched, meaning that they are hard to change, having a threshold for change higher than a simple majority, possibly having multiple thresholds that need to be met to achieve change.

This has generally been construed to reflect that the laws expressed in constitutions are fundamentally more important, more basic, than other laws, and thus need to be protected from the hurly-burly of day-to-day politics and considered somewhat sacrosanct.

In practice this has proven innately extremely conservative and required workarounds like the concepts of a living constitution where the interpretation of the document can be stretched and changed and read into due to the inability to actually change the text. Often anything construed as requiring constitutional change is abandoned as being inherently too difficult.

In a sense all laws are entrenched to an extent as generally the status quo is difficult to change even if theoretically only a majority is required to vote for change, because various hurdles will exist to mitigate against moving to a vote, if nothing else just the innate inertia of the status quo, the time it takes to change one law in the context of the number of laws.

Then of course there is the inherent defense of the status quo where laws are often protected by concentrated vested interests versus a more disperse group who would stand to gain from any change. Laws are further protected by the lack of representation in representative democracy. So laws passed at a particular point in the past are to some extent or another hard to change, that is are entrenched.

On reflection however it should become clear that entrenchment is innately in conflict with the democratic principle of consent of the governed in that it is means laws, constitutions especially, are reflective of a point in time, often a point significantly in the past, and therefore often don't represent the current constituency, but possibly a generation long since passed on.

Ideally to satisfy the principle of consent of the governed laws should be required to constantly prove they have the support of the current constituency. In practical terms this has not historically been possible though it is possible though generally not done to require periodic renewal of laws.

Times have changed and Liquid democracy has now been developed as a way to spread the practice of democracy to all with a mix of direct and representative democracy, but as generally construed it is still constrained by entrenchment. However liquid democracy is ideal to incorporate the concept of living democracy where decisions only remain in force for so long as they retain majority support.

The direct democracy and transferable proxies of Liquid democracy mean that support for decisions can be tracked on an ongoing basis. We are perhaps not ready to use such a system at the level of the state but we could introduce it in our civil society associations.

New members can take position on previous decisions directly or by proxy, former member's positions are removed, current members as always can change position. Therefore all decisions could be constantly subject to a de facto motion of confidence, an ongoing mechanism testing consent of the governed.

The foundations of our democracies cannot themselves be fundamentally undemocratic. We should not be bound by those who have gone before, or conversely bind those yet to come, and we now have a way to make rules prove that they have our continuous consent.