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Why We Need A New Constitution
by Barry Krusch
WHY WE NEED A NEW CONSTITUTION
AFTER an unequivocal experience of the inefficacy of the subsisting
federal government, you are called upon to deliberate on a new
Constitution for the United States of America. The subject speaks its
own importance; comprehending in its consequences not hing less than
the existence of the UNION, the safety and welfare of the parts of
which it is composed, the fate of an empire, in many respects, the most
interesting in the world.
Alexander Hamilton, Federalist 1
INTRODUCTION
The Constitution of the United States, currently residing in a vault in
Washington, D.C., was drafted in 1787. The America of 1787 was a
country predominantly comprised of farmers, a country with a population
smaller than that of Chicago today. In that Pastoral time (a time which
saw the creation of idyllic works of music like Mozart's Eine Kleine
Nachtmusik), the form of government designed by the Framers may have
been perfectly adequate. But, as the Third Millenium approaches, more
and more Americans are beginning to feel that in many critical
respects, the form of our government is "out of joint" with modern
times. We have had, in Hamilton's words, "an uneqivocal experience of
the inefficacy of the subsisting federal government." Our problems have
steadily mounted, and it is becoming increasingly clear that our
government will not, or cannot, deal with these problems. Consequently,
there has been a noticeable increase in frustration with our political
system, as The New York Times reported in 199 1:
"To many Americans, politics has become remote and sterile, posing
false choices. For all the angry abortion debate, as an example, most
Americans could probably agree in two minutes on a six-word policy:
Discourage abortions but don't ban them. Yet in the political arena,
the extremist fury drags on for still more years, oblivious to urgent
concerns like the blazing spread of measles. In a sobering new report,
the Kettering Foundation's David Mathews cites reaction 'against a
political system that is perceived as so autonomous that the public is
no longer able to control and direct it. People talk as though our
political system had be en taken over by alien beings.'"
However, dissatisfaction with government is nothing new in America,
since our complaints with government are structurally based -- that is,
societal maladies and unrest have arisen directly from the structure of
government instituted by the Framers. For this reason, historical
criticisms appear contemporary. Consider this paragraph, written by
author Frank Cook in 1923:
"The American people were never before so critical of their government
as they are now. They were never before so cynical about their
government. They rail at the politicians, they jeer at Congress, they
blackguard the President, whoever he happens to b e, but they never
stop to inquire whether their government was established to meet the
demands they are making on it. If they did, they would be obliged to
admit that it was not. They ask a rigid, inflexible government to
function as a responsible and f lexible government. They ask a
government of checks and balances to function as a political
manifestation of democracy. They ask a government of co-ordinate and
independent branches to function as a unit. It cannot be done. In spite
of all their arden t devotion to the Constitution, it is apparent that
they know little about the Constitution. They have turned it into a
fetish and they burn a vast quantity of incense before it, but they
have forgotten its origins and have lost contact with its purposes.
What they think it is, or what they think it must be, is something that
it was never intended to be, and can never be made to be, except by a
process of almost revolutionary revision."
The more things change, the more they stay the same. Complaining about
government has become one of the less enjoyable American pastimes. But
as Cook perceptively noted, people have consistently failed to discover
the fountainhead of the American pathol ogy. It has been said that the
one thing people can learn from history is that people have learned
nothing from history, and contemporary experience is providing a
ringing endorsement of that dictum. But somewhere, somehow, the cycle
must stop, and peop le must heed Cook's advice, and begin the process
of constitutional analysis, an analysis that of necessity begins by
examining the symptoms of deep-rooted troubles -- our seemingly
intransigent societal ills.
PART 1
THE PREAMBLE AND OUR PROBLEMS
Government deficits, the spiraling imbalance of trade, inconsistencies
in foreign policy, illegal immigration, unemployment, the decay of our
cities, the abuse of the environment, the staggering cost of elections,
and the piracy of special interest groups -- these problems and a host
of others have led thoughtful citizens to question whether our
political system is capable of meeting the challenge of modern
government.
-- Donald Robinson
We know what the outcomes of a successful Constitution are, since the
Preamble to our Constitution states that it was ordained and
established "in order to" effect six main goals: "form a more perfect
union," "establish justice," "insure domestic tranquil ity," "provide
for the common defense," "promote the general welfare," and "secure the
blessings of liberty to ourselves and our posterity." Therefore, at
least some of the indicators of governmental success or failure are the
extent to which the object ives outlined in the Preamble have been
achieved. This measuring rod established in the Preamble is not
flattering to our Constitution: even a cursory analysis of whether or
not these goals have been met reveals serious inadequacies. For
example, one of the primary goals of the Constitution is to "estab lish
justice." Justice, of course, must by definition mean justice for all.
But as the Brookings Institution Task Force found in their evaluation
of the justice system in the area of civil litigation, this goal has
not been achieved. In America, "ju stice" is meted out to those with
the most spare time on their hands and the deepest pockets:
"In many courts, litigants must wait for years to resolve their
disputes. In the meantime, their attorneys pursue ever more expensive
means of discovery to prepare for trial, often having to duplicate
their preparation when trial dates are postponed. Am ong the bulk of
cases that are never tried but settled, many are overprepared and
overdiscovered. In short, civil litigation costs too much and takes too
long. The high costs of litigation burden everyone. Our businesses
spend too much on legal expense s at a time when they are confronted
with increasingly intense international competition. They pass those
costs on to consumers, who then pay unnecessarily high prices for the
products and services they buy. People who take their cases to court or
who m ust defend themselves against legal actions often face staggering
bills and years of delay. "
Prophetically, Luther Martin, one of the Framers of our Constitution,
indicated that this would be a future concern in an address delivered
to the Maryland Legislature on Novermber 29, 1787. In that address,
Martin referred to an "almost... certain p rospect of ruin... where the
middle and common class of citizens are interested...", and stated that
"the citizen... even if ultimately prosperous, must be attended with a
loss of time, a neglect of business, and an expense which will be
greater than the original grievance, and to which men in moderate
circumstances would be utterly unequal."
The area of civil litigation, of course, is not the only area where
injustice is done. The field of criminal "justice" is a world where the
innocent are imprisoned, where people who cannot afford bail are
incarcerated for months, and a world where dispro portionate and
disproportionately applied sentences abound. As Anne Strick reports in
her 237 page and extraordinarily detailed book Injustice for All,
"Defendants from the world of organized crime are let off five times
oftener than are ordinary persons. Black criminals tend to receive
prison terms averaging nearly one third longer than whites. Poor
defendants serve fully twice as long as those with e nough money to
hire their own lawyers. Suspects brought into New York's overflowing
courts receive lighter penalties than those unlucky enough to be
convicted of the same crime upstate."
So much for mythology. But the failure to "establish justice" is only
one benchmark. A failure to find solutions for the important social
dilemmas of the day -- a failure to "promote the general welfare" -- is
another key indicator of structural inade quacy. Consider Hamilton's
observation regarding the "inefficacy" of government. If even the
passage of simple laws like the Brady bill (a measure requiring a
seven-day waiting period for the purchase of handguns) presents grave
difficulties (as one Rep resentative said,'It has been frustrating
taking a simple commonsense measure and having to invest such enormous
energy and resources in getting it passed... We've had to raise the
visibility of this proposal to an unwarranted level in relation to what
it can do.' ), it should be no surprise that the more problematic
issues of the day pose even greater difficulties. A brief survey of
contemporary journalism reveals real shortcomings in the enactment of
the "general welfare" clause. Consider, for exam ple, the environment,
and the solution our government has promulgated to cope with another
fine mess we've gotten ourselves into, toxic waste dumps (from the New
York Times):
"The Environmental Protection Agency's 'Superfund,' established a
decade ago as the ultimate solution to the nation's toxic waste crisis,
is mired in billions of dollars in administrative costs and attorney's
fees that threaten to make the program the mos t expensive public
policy fiasco in U.S. history. In dozens of interviews, environmental
experts, former federal officials and industrial leaders across the
country told of litigation costs so staggering that the final Superfund
bill could be double that of the savings and loan debacle. Initially,
the Superfund's legislative sponsors expected the cleanup to be
accomplished in a single five-year program costing less than $5
billion. Today, analysis predict that the program could balloon to $1
trillion in industry and federal spending and take half a century to
complete. At least $200 billion of the total, they say, is likely to be
consumed in "transaction costs" that do not include any spending for
actual cleanup. Most of this amount will be for corporate attorneys'
fees in thousands o f lawsuits.... EPA records show that only 33 toxic
waste sites have been fully cleaned and removed from the agency's
National Priorities List of the 1,236 most hazardous sites. 'This is a
program that hardly ever gets anything right,' said Joel Hirsc hhorn,
an environmental consultant in Washington, D.C., and former chief
Superfund researcher at the congressional Office of Technology
Assessment. A 1989 study by the office found that overall, '50 to 70
percent of spending in the Superfund program is i nefficient.' Many of
those familiar with the program say the Superfund was doomed to failure
from its inception because of fundamental flaws in the legislation that
created it. If current projections of Superfund-related expenditures
are accurate, analysts say, the cost will be at least $2,000 for every
American -- reflected in price increases passed along to consumers on
countless chemical and petroleum-based products used in every U.S. home
-- without even covering the removal of hazardous wastes.... Some
analysts believe that an immense government bailout -- at direct
taxpayer expense -- will eventually be needed to finish the toxic
cleanup and to provide emergency bac king for commercial insurance
companies facing enormous Superfund-related liability. 'Where is the
money? How much has been used? On what?' asked Carmine Iannuzzi,
president of Massachusetts-based Camger Chemical Systems, which made
the protective coa ting for the mustard gas suits worn by troops in the
Persian Gulf war. 'It seems like a lot of money has simply vanished
without accomplishing anything.'.... The Office of Technology
Assessment has been advising Congress and the White House of the
Superfund's litigation problems since the mid-1980s, when the program
was reauthorized for the first time. Nonetheless, the legislation was
reauthorized for the sec ond time six months ago, with virtually no
substantial changes and little congressional debate. In the meantime,
according to chemical industry and environmental group sources, as much
as $12 billion has already been consumed in transaction costs -- pri
marily feeding an immense new legal industry that has emerged to
negotiate Superfund cases. About $8 billion has been used for clean-up.
To date, $22 billion in chemical and petroleum taxes has been allocated
by Congress for the Superfund. Of that, abo ut $10 billion has been
spent by the EPA, and private industry is believed to have spent at
least an equal amount. These costs are expected to undergo huge
increases unless major changes are made in the Superfund, analysts say.
According to the study by the Office of Technology Assessment, legal
fees and overhead associated with the Superfund could eventually exceed
$200 billion, or 44 percent of anticipated total costs. Other sources
say the transaction cost, most of which will be borne by private ind
ustry, may equal 60 percent of the total. The most comprehensive
independent research analysis of the Superfund is a 1989 Rand Corp.
study, which is now being updated. Principal researcher Jan Acton said
he could not release the new Rand data, which are scheduled for
publication in August, but added: 'The numbers (for attorneys' fees and
overhead) could be truly staggering.'"
But there are some individuals who enjoy wading in this enviromental
quagmire -- the attorneys:
"It took Dell Perlman 'no longer than my first Superfund negotiating
session' to conclude that the toxic waste crisis is a bonanza for at
least one U.S. industry -- the legal profession. The session, a
preliminary hearing on a hazardous dump, was schedu led recently at a
high school near a contaminated disposal site. 'EPA had to hold it in
the gym, because so many people turned out,' said Perlman, who is
assistant general counsel for the Chemical Manufacturers Association.
'I looked around the stands, and I realized they were full of lawyers,
all billing their time at around $200 per hour,' he said. 'Extrapolate
those kinds of costs over the next 10 years, and you come up with quite
a figure.'... [T]here are more than 20,000 U.S. attorneys now spec
ializing in environmental litigation and issues, up from fewer than
2,000 when the Superfund was created in 1980.... Their needs have
generated a golden job market where none existed barely, a decade ago.
According to the National Law Journal, attorne ys six years out of law
school who have experience in environmental litigation are being
offered salaries of up to $225,000 a year. "
The Superfund legislation may furnish livelihoods, even upper-class
livelihoods, but it is not preventing environmental disasters in the
making. For example, the EPA reported in 1991 that 22,650 U.S. plants
and facilities released 5.7 billion pounds of n ew toxic chemicals into
the environment in 1989 -- new releases and emissions coupled with
legislative and judicial delays against combating these emissions means
that "projected costs rise with each day spent in court -- rather than
at the sites the mselves -- as untouched toxic wastes seep into
groundwater and increase the size of polluted areas that must be
cleaned up...."
In the area of national health, another area which is an intrinsic part
of the "general welfare," our government maintains the existence of a
system that is itself chronically ill:
"The American Health care system is the most expensive in the world,
but for those not in its mainstream, the care it offers is among the
most unsatisfactory. Americans pay $700 billion a year [and] [l]ife
expectancy in the United States is shorter than in 15 other nations,
and infant mortality is worse than in 22 other countries.... In any
two-year period there are 34 million people without health insurance.
But the number who lose their insurance at least temporarily is nearly
double that many, 63 million. For businesses, tension is rising.
Companies watch as health care spending devours ever larger portions of
their profits. In the 1960's, businesses spent about 4 to 8 cents of
each dollar of profits on health care. In 1990, it was 25 to 50 ce nts
per dollar and rising.... But on the Potomac, when there is too much
interest in a subject a political paralysis can result. In Congress
there have been no fewer than 14 proposals to revamp the national
system. At the White House, there have bee n no major proposals, as
political specialists wait for the right conservative proposal and the
right moment -- just before or just after the election -- to put it
forward."
In the area of national defense, an area which could reasonably be seen
one aspect of the "general welfare," the United States is beset with a
military industrial complex that has failed to "provide for the common
defense" in an efficient manner, and has instead given us debacles such
as $640 toilet seats, $1,100 stool-leg caps, and $2000 nuts, not to
mention pork-barrel spending like the B-1 bomber:
"The B-1 was built on time and roughly within cost, but at a terrible
price: it doesn't work as promised. Its electronics system can jam
signals from the airborne radars of Soviet fighters and missiles, but
there are apparently others that the system wi ll not jam without a
complete redesign.... The B-1 will probably limp along with Band-Aid
fixes, always a step behind Soviet air defenses, until in a few years
it is replaced by the B-2. That's a huge waste of $28 billion....
Design driven by service agendas. The Air Force designed the B-1 first,
then its mission.... Contracts not awarded on merit alone. Sometimes
the Pentagon or a powerful state delegation wants to keep a failing
contractor in business or a production li ne open.... Congressional
interests overriding defense. Once the Pentagon has decided on a large
program, the contractor can spread subcontracts to key Congressional
districts, building an unstoppable constituency. Subcontracts for the
B-1 stretched across 48 states...."
The B-2, the B-1 replacement, has turned out to be twice the fiasco at
four times the cost.
The breakdown in the Justice System, the Environment, Health, and
National Defense represent only a fraction of the more obvious symptoms
of deeply-rooted structural inadequacies. More subtle and disturbing
indicators are on the horizon, like the BCCI a nd Savings and Loan
Scandals, and the failure of banks in general:
"As many as 440 banks may fail this year and in 1992, costing the
insurance fund $23 billion and leaving it with a deficit of nearly $6
billion next year. [T]he Band-aid solutions being applied, in the form
of Treasury borrowing, will do no more than postpone the inevitable
bill to taxpayers until after Election Day 1992. 'We're in the grand
denial phase, just like 1987 and 1988, when Congress and the Admi
nistration did nothing about savings and loans,' said Walker Todd, a
lawyer who is on leave from the Federal Reserve Bank of Cleveland to
write a book about the Federal Reserve Board. On Capitol Hill, where
the House banking committee is to begin draftin g legislation Wednesday
to lend billions of dollars of taxpayer money to the battered deposit
insurance fund, lawmakers are running scared. No incumbent sees
anything to gain politically by voting to put more public funds at
risk, although everyone recog nizes something has to be done to avoid
further damage to the nation's financial system. Many members blame
themselves as much as the regulators and the Reagan Administration for
the savings and loan debacle -- Congress, after all, approved the
industry 's deregulation -- and they see the possibility of a repeat
performance...."
And problems that hit even closer to home are ignored. Alarming
statistics have been released in recent years regarding children:
500,000 American children are runaways, 360,000 American children are
in foster care, 14,500,000 American children suffer e motional illness
or developmental deviations, suicide is the second leading cause of
death among children, and 1,000 "crack" babies are born daily. Yet in
the face of these appalling statistics, the Legislative branch has
taken no decisive action. Nor has the Judiciary, the protector (in
theory) of individual rights. As Judge Charles Gill stated, "It is
ironic that, although corporations in the United States have long been
held to be 'persons,' and thus are eligible for constitutional
protection, th e extent to which children, as individuals, have
comparable constitutional rights is still not entirely clear." The
working-out of ineffectual social policies continues:
"In 1989, there were 1,200 babies born in the Yale-New Haven clinic.
Ninety percent of those mothers had used illegal drugs during their
pregnancies. Fifty percent had used cocaine within forty-eight hours of
delivery. Child abuse cases are up eighty-f ive percent in the last
decade. Sexual abuse cases are up 250% in the same period. Like most
states, Connecticut has a child protective agency. The Connecticut
Department of Children and Youth Services (D.Y.C.S) has a child abuse
hotline number. It is conceded that sixty percent of such calls are not
afforded any response."
This indicator of social collapse is not confined merely to
Connecticut, according to The United States Advisory Board on Child
Abuse and Neglect, which concluded that "child abuse and neglect in the
United States now represents a national emergency," an d made three
findings:
1. Each year hundreds of thousands of children are being starved and
abandoned, burned and severely beaten, raped and sodomized, berated and
belittled;
2. The system the nation had devised to respond to child abuse and
neglect is failing; and
3. The United States spends billions of dollars on programs that deal
with the result of the nation's failure to prevent and treat child
abuse and neglect.
Of course, the "band-aid solutions" America has offered are the only
ones it can offer, in a Congressional world where substantive political
changes are impossible. This litany of infirmities, and their
persistence over time, indicates a causality that i s chronic.
Something is wrong at the deepest levels of our government -- perhaps
in that vault in Washington, D.C.
Due to these recent developments, it should be no surprise that the
focus in the academic world has turned to our political structure. Many
academics and former officials of government have seen the existence of
these social developments as symptoms of a disease in the body politic,
a disease which is itself rooted in our constitutional structure. Few
have stated the issue as succinctly as Abe Fortas, the former Justice
of the Supreme Court, who wrote that
"The controls that the Founding Fathers adopted are no longer adequate.
The balance that the Founding Fathers ingeniously devised no longer
exists. It has been destroyed by the complexities of modern life, the
vast expansion of governmental function, th e decline of Congress...
and, principally, by its failure to effectively reorganize its
management and procedures, and by the enormous increase in presidential
power and prestige."
Fortas was seconded by C. Douglas Dillon, Secretary of the Treasury
under President Kennedy, who stated that "until we are prepared to
examine the basic structure of our federal system... our problems will
remain... and, in all probability, increase in severity. Over time,
many in the academic community have attempted to "examine the basic
structure of our federal system" in search of the flaws in our
constitutional system. To give just one example, the authors of The
Constitution Under Pressure listed five such structural defects with
the Constitution:
(1) Limited number of representatives results in
(a) higher constituent to representative ratios.
(b) unreasonable workloads for representatives.
(2) Selecting senators on the basis of states
(a) violates the democratic criterion of one-person one-vote.
(b) malapportionment biases power against citizens from large
states.
(3) Non-functionally specialized houses
(a) leaves citizens unable to effectively disaggregate
electorally their policy preferences.
(b) undercuts representative responsibility and accountability
and leads to single-issue voting.
(4) Bicameral passage of all legislation
(a) results in lengthy delays in developing programs.
(b) creates multiple veto points where interest groups can
wield disproportionate power.
(5) No hierarchical accountability between the Senate and the House of
Representatives
(a) undermines long term planning, national interests, and
coordination.
(b) leads to internal committee specialization which
disenfranchises voters from most policy initiation.
This list, of course, is only a starting point. In fact, there have
been several books and many, many articles on the imperfections of our
Constitution. What is interesting is that while there has been
disagreement as to which particular structural feat ure or features are
primarily responsible for the decay of our government and society in
general, there is a general consensus as to the genesis of the problem
-- the political theory of the Framers, which molded the fundamental
shape of our Constitution.
End part 1.
© 1991 Barry Krusch
For further information write Americans for a Constitutional
Convention, 127 E. 59th St., NY, NY, 10022, call 1-212-408-3150, or
send E-mail to 72030,2635. WHY WE NEED A NEW CONSTITUTION
PART 2
THE POLITICAL THEORY OF THE FRAMERS
The very complication of the business, by introducing in a necessity of
the concurrence of so many different bodies, would of itself afford a
solid objection.... a source of so great inconvenience and expense as
alone ought to condemn the project.
-- Alexander Hamilton
The consensus among critics of the Constitution is that many of the
ordeals we are confronted with in our society are directly traceable to
a constitutional structure that was designed by the Framers to be
unresponsive to majority opinion. The structure they instituted has
resulted in paralysis and a lack of governmental accountability, and a
concomitant inability to prevent social breakdown.
This is not completely the fault of the Framers; after all, they were
not designing a Constitution for the 21st Century. They were simply
trying to create a New Constitution for the 18th Century, since
experience with the previous constitution (known as the "Articles of
Confederation") revealed fatal flaws in that document. Consequently,
our Framers met in the Federal Convention of 1787 to draft a New
Constitution for the United States of America. This 1787 Constitution
was formed under several new the ories of government -- most notably
the Separation of Powers and the need for a Bicameral legislature --
which Hamilton enumerated in Federalist 9:
"The regular distribution of power into distinct departments; the
introduction of legislative balances and checks; the institution of
courts composed of judges holding their offices during good behavior;
the representation of the people in the legislature by deputies of
their own election: these are wholly new discoveries, or have made
their principal progress towards perfection in modern times. They are
means, and powerful means, by which the excellences of republican
government may be retained and its i mperfections lessened or avoided."
In one of the most famous essays in The Federalist, Federalist 51,
Madison described how the principle of government divided against
itself into three separate branches would maintain the integrity of the
individual branches:
"To WHAT expedient, then, shall we finally resort, for maintaining in
practice the necessary partition of power among the several
departments, as laid down in the Constitution?... [T]he defect must be
supplied, by so contriving the interior structure o f the government as
that its several constituent parts may, by their mutual relations, be
the means of keeping each other in their proper places.... [E]ach
department should have a will of its own; and consequently should be so
constituted that the members of each should have as little agency as
possible in the appointment of the members of the others...."
A system of checks and balances was instituted, which allowed each one
of the three branches of government, the legislative (the lawmakers),
the executive (the enforcers of the law), and the judicial (the
determinants of whether or not a law was broken ) to restrict in some
manner the actions of the other:
"[T]he great security against a gradual concentration of the several
powers in the same department, consists in giving to those who
administer each department the necessary constitutional means and
personal motives to resist encroachments of the others. The provision
for defence must in this, as in all other cases, be made commensurate
to the danger of attack.... Ambition must be made to counteract
ambition. The interest of the man must be connected with the
constitutional rights of the place."
The Framers knew that it was not enough to rely on politicians to "do
the right thing" and maintain the integrity of the branches themselves;
even the power of voting politicians out of office was not enough to
secure the constitutional structure. Thus , the Constitution would
contain within itself the means of its self-preservation. Under the
Separation of Powers principle, each branch would confront the other.
Government was weakened under the divide et impera [divide and rule]
maxim referred to by Hamilton in Federalist 7:
"This policy of supplying, by opposite and rival interests, the defect
of better motives, might be traced through the whole system of human
affairs, private as well as public. We see it particularly displayed in
all the subordinate distributions of power s, where the constant aim is
to divide and arrange the several offices in such a manner as that each
may be a check on the other -- that the private interest of every
individual may be a sentinel over the public rights."
Since the nature of the powers were different, the nature of the checks
also had to be different. Because the legislative branch was seen as
the most powerful, it was subdivided (again, divide et impera) into a
House of Representatives and Senate:
"[I]t is not possible to give to each department an equal power of
self-defence. In republican government, the legislative authority
necessarily predominates. The remedy for this inconveniency is to
divide the legislature into different branches; and to render them, by
different modes of election and different principles of action, as
little connected with each other as the nature of their common
functions and their common dependence on the society will admit. "
As if this evisceration of legislative power wasn't enough to secure
the objective of the Framers, the executive branch was given what was
actually a legislative power, an overrulable veto, to stop
"encroachments" by the legislative branch. Thus, the for m of
government given to us by the Framers in 1787 was a legislative branch
divided into two separate branches, with that branch checked by a
President with veto power, and a Supreme Court with the power (as it
subsequently developed) to determine laws un constitutional -- a
government which would be permanently divided against itself. This
division sought to preserve the integrity of the branches, but at a
heavy and unavoidable cost: delay in the face of a necessity for
action.
PART 3
THE SEPARATION OF POWERS AND DELAY
[I]t could tend to increase the complexity of the political machine,
and to add a new spring to the government, the utility of which would
at best be questionable... [it] might in practice be subject to a
variety of casualties and inconveniences.
-- Alexander Hamilton (on a separate body for impeachments)
The most obvious source of delay in government through the separation
of powers is the bicameral house -- every law must be passed in
identical form by two separate legislative bodies, a requirement that
allows few laws to emerge unscathed. Even in 177 6, this notion was
seen as counterproductive by an anonymous author, who wrote in "Four
Letters on Interesting Subjects" that
"The notion of checking by having different houses, has but little
weight in it, when inquired into, and in all cases it tends to
embarrass and prolong business; besides, what kind of checking is it
that one house is to receive from another? or which is t he house that
is most to be trusted to?... That some kind of convenience might now
and then arise from having two houses, is granted, and the same may be
said of twenty houses; but the question is, whether such a mode would
not produce more hurt than g ood.... a perpetual and dangerous
opposition would be kept up, and no business be got through: Whereas,
were there a large, equal, and annual representation in one house only,
the different parties, by being thus blended together, would hear each
other s arguments, which advantage they cannot have if they sit in
different houses.... The chief convenience arising from two houses is,
that the second may sometimes amend small imperfections which would
otherwise pass; yet, there is nearly as much chance of their making
alteration for the worse as the better; and the supposition that a
single house may become arbitrary, can with more reason be said of two,
because their strength is greater. Besides, when all the supposed
advantages arising from two house s are put together, they do not
appear to balance the disadvantage. A division in one house will not
retard business, but serves rather to illustrate; but a difference
between two houses may produce serious consequences."
This warning, unfortunately, was not heeded by our Framers, even though
Madison acknowledged that "this complicated check on legislation may in
some instances be injurious as well as beneficial..." Over time, a
committee and seniority system has bee n created in both houses of
Congress which has exacerbated the latent defects of bicameralism.
Under our bicameral system as it exists in the 20th Century, the delay
has been compounded in a way our anonymous author could not have
contemplated:
"In order for the average bill to become a law it must be: (1)
introduced in both the House of Representatives and the Senate; (2)
referred by both houses to separate committees where hearings are held
and recommendations are made; (3) debated and passed in both chambers;
(4) sent to a conference committee if the versions passed in separate
houses are different; (5) approved by each house; and (6) signed into
law by the president. Some bills, which overlap into more than one
committee jurisdiction in ea ch house or must be sent to subcommittees,
have even more obstacles to final passage. The passage of legislation
is extremely difficult under such a decentralized system. The multiple
decision points through which a bill must pass require majority coali
tions at each gate to push the measure along. There is a complex
division of labor in Congress. Responsibilities for specific policy
areas are delegated among numerous committees and subcommittees. There
are 269 committees and subcommittees in both hou ses of Congress.
Broader issues, like the national defense, education and health care
are divided into smaller subissue categories for committee
consideration.... The committees decide which bills will be reported to
the floor for debate and which wil l be placed on the back burner of
the congressional agenda. Favorable committee reports do not
necessarily ensure the passage of the bill on the floor, but the more
favorable the report from committee, the greater the probability for
passage.... In t he Eighty-ninth Congress (1965-1967), 26,566 measures
were introduced, 4,200 were reported from committee and 810 became
public law. A similar trend continued in the Ninety-seventh Congress:
although fewer measures were introduced (only 13,240), 1,877 w ere
reported from committee and 473 became public law. Thus, the committee
system as a gatekeeper of what is debated and what is not debated
remains extremely important... "
As Greenberg (1986) noted, confirming the anonymous author of 1776, the
bicameral system has lead to inevitable postponement of action, and has
even changed the nature of the legislation ultimately passed. The
medium doesn't allow every message:
"[T]he bicameral nature of Congress and its contrasting constituency
bases [districts vs. states] not only serve to slow down the pace of
legislation but also significantly decrease the probability that any
general purpose legislation will manage to wind its way to completion.
These elements of the constitutional organization of Congress make it
halting, conservative, and indecisive. The Constitution further
contributes to these characteristics by specifying that only one-third
of the Senate shall be up for election at any one time, helping to
insulate that body from the tides of popular sentiment. By its
constitutional organization, then, Congress faces barriers to decisive,
popular, and unified action."
While the Framers approved bicameralism, they did so with no empirical
evidence of its ultimate effects, ultimate effects which were, in fact,
seen by them as negative. For example, the result of the bicameral
process was an enfeeblement of government, a nd feeble government was
seen as bad government. As Hamilton stated in Federalist 70, "A feeble
execution is but another phrase for a bad execution; and a government
ill executed, whatever it may be in theory, must be, in practice, a bad
government." Feeble government, like a toothless watchdog, would bite
neither mailmen nor burglars. What Hamilton wrote in a different
context applies equally well to the bicameral system: "The most to be
expected from the generality of men, in such a situation, is t he
negative merit of not doing harm, instead of the positive merit of
doing good." "The postive merit of doing good" was made virtually
impossible because of an institutionalized and debilitating delay, a
delay which was dangerous even in 1787, a far more relaxed time. As Jay
stated in Federalist 64,
"They who have turned their attention to the affairs of men, must have
perceived that there are tides in them; tides very irregular in their
duration, strength, and direction, and seldom found to run twice
exactly in the same manner or measure. To discer n and to profit by
these tides in national affairs is the business of those who preside
over them; and they who have had much experience on this head inform
us, that there frequently are occasions when days, nay, even when
hours, are precious.
There could be no doubt that the legislative process, stodgy by nature,
would be rendered even stodgier by the bicameral requirement. According
to Justice William O. Douglas, "Legislative power... is slower to
exercise [than executive power.] There m ust be delay while the
ponderous machinery of committees, hearings, and debates is put into
motion. That takes time; and while the Congress slowly moves into
action, the emergency may take its toll." Delay feeds vicious circles,
which are vicious enough without help from government. Unsolved
problems mount. A failure to combat drug abuse leads to crack
addiction. Crack addiction leads to crack babies. The existence of
crack babies leads to a diversion of medical resources to help the
babies. In tur n, resources need to be diverted to schools to help
these children, many of whom are brain-damaged, blind, or otherwise
physically or mentally debilitated. Thus, money that could have been
used to create positive effects is wasted in attempting to counte r
negative effects. What most people would see as insane is inevitable,
because in Washington, D.C, structural procrastination is the
impediment to fundamental action:
"A criticism often leveled at the U.S. Congress is its inability to
enact legislation concerned with pressing national problems without
long, arduous delays. It is not unusual for Congress to adjourn after
along session without having dealt with some urg ent matter before it.
In past years it has failed, for example, to pass a fiscal year
appropriations bill until months after the date when the actual fiscal
year began. This lack of action handicaps orderly administration. It is
not uncommon for Congre ss to approve minor, nondivisive measures in
every session; moreover, in crises it can act quickly. But often it is
unable or unwilling to act on pressing problems unless they reach a
crisis stage.... "
Hazlitt (1945) understood that institutionalizing delay because it was
occasionally beneficial was like refusing to teach people to think
because some would think about committing crimes: "A nation can erect a
complicated set of hurdles and barriers to compel itself to delay
decisions, but... [b]y the obstacles it erects, it discourages itself
from making any new decision, regardless of its merits. The
self-erected barriers tend to bias its decision unduly against the
proposed change." And Hamilton 's fears that "the positive merit of
doing good" would be in jeopardy have come to fruition. Today, a
permanent stasis is apparent in Congress. As Representative Romano L.
Mazzoli (D-KY) stated, "There's a frustration level. It doesn't seem
like any pr oblem is ever solved around here."
Thus, the first defect of the Separation of Powers is that it creates
delay in the face of a necessity for action. But that's only the first
problem.
THE SEPARATION OF POWERS AND ACCOUNTABILITY
Another problem with the Separation of Powers as it exists under our
Constitution is that dividing responsibility obliterates
accountability. This effect was noted by Hazlitt:
"Congress can prevent the President from doing as he wishes but cannot
make him do what it wishes. Responsibility is divided and lost even
within Congress itself. The Senate can block the overwhelming will of
the House, though that will may reflect an e qual sentiment in the
country. Worse, a single Senate committee chairman, chosen by
seniority, can often block the expressed will of the House and prevent
the Senate from expressing a will by his mere inaction. The result of
this system, even in their quiet times, as Bryce pointed out, is that
the nation does not know 'how or where to fix responsibility for
misfeasance or neglect,' and 'no one acts under the full sense of
direct accountability.'"
According to author Harold Laski,
"It is desirable that the source of responsibility for governmental
error or wrong should be clear and unmistakable; the American system so
disperses responsibility that its detection is approximately
impossible. It is urgent that the working of institut ions should be
conducted in the perspective of discussion which educates and clarifies
the public mind; but the essential tasks of operation in America are
almost wholly concealed from the public view.... A governmental system,
moreover, should be sens itive to the opinion of its constituents, and
maximize the opportunity of translating a coherent body of doctrine
into statute; yet it seems the purpose of American institutions
deliberately to avoid the sensitiveness, on the other hand, and to
prevent th e making of coherent policy upon the other."
Accountability was one of the chief victims of the Separation of
Powers: "The great defect of the American system is not merely that it
can bring deadlock between the two houses of Congress) but that it
usually becomes impossible to fix the precise respon sibility for that
deadlock or to do anything about resolving it." Hamilton viewed this
ultimate consequence of the actions of the Framers in a negative light.
As he stated with regard to division of responsibility in the executive
branch, plurality (ass igning the execution of a responsibility to two
separate people or bodies) would obliterate accountability:
"[P]lurality... tends to conceal faults and destroy responsibility. ...
It often becomes impossible... to determine on whom the blame or the
punishment of a pernicious measure, or series of pernicious measures,
ought really to fall. It is shifted from one to another with so much
dexterity, and under such plausible appearances, that the public
opinion is left in suspense about the real author. The circumstances
which may have led to any national miscarriage of misfortune are
sometimes so complica ted that, where there are a number of actors who
may have had different degrees and kinds of agency, though we may
clearly see upon the whole that there has been mismanagement, yet it
may be impracticable to pronounce to whose account the evil which may h
ave been incurred is truly chargeable. 'I was overruled by my council.
The council were so divided in their opinions that it was impossible to
obtain any better resolution on the point.' These and similar pretexts
are constantly at hand, whether true or false. And who is there that
will either take the trouble or incur the odium of a strict scrutiny
into the secret springs of the transaction? Should there be found a
citizen zealous enough to undertake the unpromising task, if there
happen to be collus ion between the parties concerned, how easy it is
to clothe the circumstances with so much ambiguity, as to render it
uncertain what was the precise conduct of any of those parties? [T]the
people remain altogether at a loss to determine, by whose influe nce
their interests have been committed to hands so unqualified and so
manifestly improper. ... [P]lurality... tends to deprive the people of
the two greatest securities they can have for the faithful exercise of
any delegated power, first, the res traints of public opinion, which
lose their efficacy, as well on account of the division of the censure
attendant on bad measures among a number, as on account of the
uncertainty on whom it ought to fall; and, secondly, the opportunity of
discovering with facility and clearness the misconduct of the persons
they trust, in order, either to their removal from office, or to their
actual punishment in cases which admit of it."
This issue is only too contemporary. Take, for example, the topic of
the budget deficit. Congress blames the President. The President blames
Congress. The House blames the Senate, and the Senate blames the House.
The Democrats blame the Republicans, an d the Republicans blame the
Democrats. Who's at fault? As Woodrow Wilson wrote in 1886:
"It is... manifestly a radical defect in our federal system that it
parcels out power and confuses responsibility as it does. The main
purpose of the Convention of 1787 seems to have been to accomplish this
grievous mistake. The 'literary theory' of checks and balances is
simply a consistent account of what our constitution-makers tried to
do; and those checks and balances have proved mischievous just to the
extent to which they have succeeded in establishing themselves as
realities. It is quite sa fe to say that were it possible to call
together again the members of that wonderful Convention to view the
work of their hands in the light of the century that has tested it,
they would be the first to admit that the only fruit of dividing power
had been to make it irresponsible."
Power is divided under our Constitution not only because legislation
must pass two separate legislative bodies in identical form, and not
only because legislation must also survive a potential Presidential
veto, but because legislation, even if passed, m ust be enforced by the
Executive branch. In point of fact, passage of legislation is only the
first hurdle; in actual practice, laws can be vitiated by an executive
branch which does not "take care" that laws be faithfully executed, as
required by the C onstitution. This constitutional (and accountability)
violation is reflected in the headline to an article appearing in The
New York Times -- "Congress and Administration Trade Blame for Keeping
Legislation on Shelf":
"Because of bureaucratic foot-dragging, complex directives from
Congress and in some cases ideological hostility, the Federal
Government has failed to carry out major parts of health, environmental
and housing laws passed with much fanfare in recent years. The delays
have left Congress stymied, consumer groups frustrated and businesses
sometimes paralyzed in the absence of prescribed regulations.... Bush
Administration officials acknowledge that they have missed many of the
deadlines set by Congress f or the new laws. But they say Congress is
partly to blame because it writes laws of impenetrable complexity with
countless mandates and gives Federal agencies insufficient time to
write needed regulations. Federal officials say the problem has become
mo re widespread in recent years. They cite these examples: Two decades
after Congress ordered the Environmental Protection Agency to identify
and regulate 'hazardous air pollutants,' the agency has issued emission
standards for only seven chemicals. In 1987, Congress established a
comprehensive program of assistance to homeless people. But recently
Federal District Judge Oliver Gasch accused the Administration of a
'complete failure' to comply with the law, saying 'pitifully few'
unused Federal pro perties had been made available to assist the
homeless. A 1986 law requiring health warnings in advertisements for
snuff and chewing tobacco was not fully enforced until this month, when
the Federal Trade Commission issued final rules. Federal courts have
castigated the agency for the delays. The Government has yet to issue
final regulations for cleaning up waste storage sites under a 1984 law.
As a result, thousands of companies are operating 'under a cloud of
doubt and uncertainty,' said Theresa Pugh, director of environmental
quality at the National Asso ciation of Manufacturers. 'There are a
million ways for recalcitrant Federal agencies to vitiate a law,' said
Representative Ron Wyden, Democrat of Oregon. 'It is extraordinarily
frustrating. Contrary to what civics textbooks might suggest, passing
leg islation today is just the very first step. After that, you have to
run through a veritable gauntlet of administrative processes and
procedures to get the law carried out.' The Reagan Administration
sometimes used administrative delays as a device to enforce its
philosophy of less government and to save money, and Congress responded
by imposing more specific mandates and tighter deadlines, creating a
cycle that aggravated th e problem.... Congress, lobbyists, the White
House and millions of Americans typically focus on legislative battles,
assuming that a bill takes effect when signed by the President. But the
partisan sparring over legislation often continues long after it is
signed into law. James M. Strock, enforcement director of the
Environmental Protection Agency from 1989 through this February, said
the delays led to a vicious circle: When Congress feels that an agency
is is moving too slowly, it sets deadlines. The agency fails to meet
them, generating further disappointment and distrust on Capitol Hill.
So lawmakers set tighter deadlines and more detailed requirements,
which the agency finds even more difficult to meet.... Disagreements
over new laws are c ommon after a decade in which Republicans
controlled the White House and Democrats dominated Congress.
Regulations can be written to distort or even to thwart the intent of
Congress. To prevent such abuse, Congress writes highly prescriptive
laws that r ead like regulations. Even when an agency is eager to carry
out a new law, it must negotiate with the Office of Management and
Budget, which often demands changes in proposed rules to reduce the
cost or to minimize the burden on private industry. Congre ss itself
may not provide the money needed to carry out or enforce a new law....
Michael J. Horowitz, counsel to the director of the Office of
Management and Budget from 1981 to 1985, said Reagan Administration
officials often viewed 'nonenforcement of the law' as an easy way to
deal with statutes and regulations they disliked. Federal courts
recently criticized the Federal Trade Commission for failing to carry
out a simple 1986 law that required health warnings in all
advertisements for snuff and ch ewing tobacco. The commission exempted
advertisements on promotional products like T-shirts, beach blankets,
baseball caps and coffee mugs. The law prescribed the exact text of the
warnings, which said, for example, 'This product may cause mouth
cancer.'
The F.T.C. argued that people would misread such warnings to mean that
T-shirts and beach blankets caused cancer when they were emblazoned
with advertisements for tobacco. In a study of the Medicaid program,
Eleanor D. Kinney, a law professor at Indian a University, found that
Federal officials issued rules rapidly 'to implement executive branch
initiatives.' But she said officials were 'quite slow' to publish rules
needed to carry out laws opposed by the Administration. Thus, she said,
rules intended to save money were issued promptly, while rules
expanding health care benefits for children and pregnant women were
delayed.... Representative Henry A. Waxman, Democrat of California,
said, 'The E.P.A. often produces carefully considered regulatory pr
oposals, based on an extensive record and lengthy studies, only to see
them dismissed out of hand by White House officials eager to protect
industry from the cost of regulation.'"
Note that our current Constitution, as it exists in practice, is in
effect a tricameral government. What began as a separation of powers
developed into a blending of powers, with legislative power gradually
coming to be vested in the executive branch. T his development has led
to the demise of yet another critical principle: the principle of
majority rule.
THE SEPARATION OF POWERS AND THE DESTRUCTION OF THE PRINCIPLE OF
MAJORITY RULE
In our modern century, this "complicated check on legislation" has
indeed proven to be "injurious," leading not only to delay and a lack
of accountability, but also to the departure of the central maxim of
democracy -- the principle of majority rule:
"The inevitable tendency of our system has been 'to widen the gulf
between the government and the people, to discourage serious political
thinking and debate save at moments of grave crisis, to increase the
power of corrupt machine politics, and to cultiv ate an easy-going
indifference to abuses.... The existing Constitution, however great its
virtues in any particular respect, does not permit of genuine popular
government. The rigidity of the electoral system, the divorce of the
executive from the leg islature, and the well-nigh uncontrollable power
of the courts combine to centralize political power in the hands of a
comparatively few individuals who are only remotely responsible to the
people, and whose acts can be reviewed by the people only at long and
fixed intervals."
The final consequence of our system has been the subversion of what
Hamilton referred to as "the fundamental maxim of republican
government" -- that "the sense of the majority should prevail":
"Bicameralism does not necessarily increase democracy because it
diminishes accountability and effectiveness by providing several more
decision points at which powerful special interests may thwart
legislation which actually reflects majority opinion. Bi cameralism
then serves the interests of powerful, often economically based
minority factions, which can muster the money, knowledge and resources
to engage in machinations in the halls of Congress. Bicameralism does
nothing to serve the interests of mino rity interests which have
traditionally been excluded from societal power structures, and often
results in thwarting majority rule."
Hamilton had warned against solutions which violated fundamental
maxims:
"[W]hat at first sight may seem a remedy, is, in reality, a poison... .
The necessity of unanimity in public bodies, or of something
approaching towards it, has been founded upon a supposition that it
would contribute to security. But its real operatio n is to embarrass
the administration, to destroy the energy of the government, and to
substitute the pleasure, caprice, or artifices of an insignificant,
turbulent, or corrupt junto, to the regular deliberations and decisions
of a respectable majority. I n those emergencies of a nation, in which
the goodness or badness, the weakness or strength, of its government is
of the greatest importance, there is commonly a necessity for action.
The public business must, in some way or other, go forward. If a perti
nacious minority can control the opinion of a majority, respecting the
best mode of conducting it, the majority, in order that something may
be done, must conform to the views of the minority; and thus the sense
of the smaller number will overrule that of the greater, and give a
tone to the national proceedings. Hence, tedious delays; continual
negotiation and intrigue; contemptible compromises of the public good.
... upon some occasions things will not admit of accommodation; and
then the measures of government must be injuriously suspended, or
fatally defeated. It is often, by the impracticability of obtaining the
concurrence of the necessary number of votes, kept in a state of
inaction. Its situation must always savor of weakness, sometimes border
upon anarchy.... When the concurrence of a large number is required by
the Constitution to the doing of any national act, we are apt to rest
satisfied that all is safe, because nothing improper will be likely to
be done; but we forget how much good ma y be prevented, and how much
ill may be produced, by the power of hindering the doing what may be
necessary, and of keeping affairs in the same unfavorable posture in
which they may happen to stand at particular periods."
Unfortunately, our form of government has not only allowed a
"pertinacious" minority to control the majority, it has
institutionalized the phenomenon. What at first sight seemed a remedy
was, in reality, a poison. The multiple decision points required b y
the Separation of Powers have given rise to a government not of, by,
and for the people , but of, by, and for the special interest groups.
THE RISE OF THE SPECIAL INTERESTS
Because the government is complicated and fundamentally unaccountable,
only special interests can afford to get involved in the political
system, since the costs of entry are high, and involvement is not
cost-effective for the average citizen: according t o John Gardner
(Secretary of Health, Education and Welfare in the Johnson
Administration), it is a mistake to think of the Federal Government as
a unified entity; rather, '[i]t is a collection of fragments under the
virtual control of highly organized spe cial interests... In the
special-interest state that we have forged, every well-organized
interest owns a piece of the rock.' This consequence was known to the
Framers, and was properly feared. In fact, Madison was acutely aware of
the threat that s pecial interests (called "factions" in 1787) would
acquire an undue influence over government, and even devoted a famous
essay, Federalist 10, to an examination of this concern. To Madison,
preventing the threat of faction control of government was a key role
for any constitution. Amazingly, however, Madison dismissed the most
critical problem society would face in one sentence. According to Yale
Law Professor E. Donald Elliot,
"What has not attracted sufficient notice about Madison's argument in
Federalist 10, however, is the cavalier way in which he dismisses
"minority Factions" as a potential threat to the public interest:
'If a faction consists of less than a majority, relief is supplied by
the republican principle, which enables the majority to defeat its
sinister views by regular vote, it [a minority faction] may clog the
administration; it may convulse the society; but it will be unable to
execute and mask its violence under the forms of the constitution.'
Madison's argument that popular elections are sufficient to insure that
minority interest groups do not pose a serious threat to the public
interest is simply wrong. Madison's argument depends on the assumption
that majorities will take the steps necessa ry to inform and organize
themselves to protect their self-interest, but this assumption is
demonstrably wrong, as Mancur Olson has shown in his recent book, The
Rise and Decline of Nations.... "
Majority organization is simply not cost-effective, since the benefits
of organizing are very slight (each individual government action with
majority opposition [like a tax loophole for a special interest]
results in only a slight cost to individuals who are not a part of the
favored minority), and the costs of organizing a majority around
discrete issues are high. No such debilitating effects affect the
special interests, who are well-organized, since a) they have the funds
to organize, and b) they have a cost-effective financial interest to
organize [e.g. a special interest tax loophole can have enormous
financial consequences for that faction], and c) they are unified on
the issue which most affects them. In addition, the passage of time has
eroded whatever natural checks there were against the ability of
special interests to capture the government:
"[The Framers] carefully crafted a political system in which various
elements of the federal government would be elected by different
constituencies in the hope that diversity in the distribution of
interests among the varying electoral constituencies wou ld prevent any
special interest group from exercising undue influence over the
government as a whole.... The house of Representatives being to be
elected immediately by the people, the Senate by the State
legislatures, the President by the electors cho sen for that purpose by
the people, there would be little probability of a common interest to
cement these different branches in a predilection for any particular
class of electors. The basic institutional checks designed by the
framers of the Constitutio n to limit the power of interest groups have
long since eroded. First, the seventeenth amendment provided direct
popular election of Senators. Second, the electoral college has now
become largely vestigial, so that as a practical matter, the President
i s also popularly elected. Third, a vast "administrative state" with
broad delegated powers has arisen that lies largely outside the system
of checks and balances crafted so carefully by the framers. Finally, as
both the country and the nature of governm ent have changed, the
principle of geographic diversity of interests, upon which the framers
placed primary reliance, is no longer as potent a check on the power of
special interest groups as it may once have been. Today there are many
interest groups th at are more or less evenly distributed throughout
the country (social security recipients, for example), and they can
bring potent electoral pressures to bear on Representatives, Senators,
and Presidents alike. The cumulative effect of these changes is to
render our political institutions systematically vulnerable to the
influence of well-organized, narrowly-focused groups seeking subsidies
or other forms of preferential treatment from the federal government. T
he current deficit is merely the outward symptom of these more
fundamental problems, resulting from the way in which our political
institutions have evolved."
The existence of latent structural flaws became apparent when the
nation began incurring its first serious budget deficits in the late
60's. The government began its slow and inevitable decline, as the
special interests began to consolidate their power. By 1978, the
systemic nature of our infirmities had become clear, and in November of
that year, The New York Times devoted a three part series to an
examination of this breakdown in government:
"John Gardner, the founder of Common Cause, the public-affairs lobby,
says the nation is being whipsawed by a multiplicity of special
interest groups, resulting in 'a paralysis in national policymaking.'
Daniel Bell, professor of sociology at Harvard, sai d at a recent
meeting of the American Jewish Congress: 'Our political institutions do
not match the scales of economic and social reality. The national state
has become too small for the big problems of life and too big for the
small problems.'... T om Hayden says 'You can take any issue you want,
and the system isn't delivering. There is no glue holding the country
together.' From the White House, Stuart Eisenstat, President Carter's
chief adviser for domestic affairs, speaks of 'an increasingly
fragmented society.' Disarray in government and dissatisfaction with it
have always been part of the American system. John F. Kennedy is
remembered, for example, as a forceful, charismatic President but one
who was unable to effect relatively mild reforms in the early 1960's
after having run on a promise to 'get this country moving again.'...
[T]here is a consensus that no coalition of interests is strong enough
to set priorities for the overall public good to effect reforms that
have wide public support, to root out inefficiency and corruption in
government programs, and to inspire confidence in political leadership.
Many see this disunity as systemic, and therefore separate from, the
failures of individual leaders and institutions, the complex new issues
that have arisen in recent years and the voter frustration and
discontent stemming from government failures. 'I'm not sure anybody
could pull this Government together,' Representative Morris K. Udall,
Democrat of Arizona, remarked....Congress has decentralized itself
until every special interest has access to policy, but the leadershi p
cannot put broad policy objectives into effect. More and more members
of Congress see themselves and present themselves as ombudsmen for
their states or districts, rather than as representatives trying to
effect broad national and foreign policies...."
In a telling prediction, Fred Wertheimer,the senior vice president of
Common Cause noted that:
"'It is a Congress becoming more and more paralyzed in its ability to
make decisions on behalf of all citizens. It is a Congress that in the
not-too-distant future will be drowning in special-interest group
political money.' On July 19, the House declin ed to bypass its Rules
Committee and vote on legislation to establish public financing of
Congressional campaigns for 1980. The Rules Committee, which clears
bills for floor action, is opposed to the measure. Another attempt at
passage will be made next year. However, some supporters fear that the
large amount of money poured into the campaigns of incumbents who won
re-election will make passage of the bill even more difficult, and the
phenomenon of public in terest financing will go on."
The cycle of our time is that big business requires big regulation --
but a constitutional structure inadequate for the passage of necessary
legislation means that power must be delegated, and, since delegated
authorities are not accountable in the tradi tional sense, Congressmen
and/or special interest lobbyists must intervene:
The growing numbers and powers of lobbies have been in part a result of
two decades of increased Government involvement in the affairs of
powerful economic interests. Over the last 15 years Federal laws and
regulations have increasingly put the Governmen t in the business of
overseeing or regulating aspects of the automobile, oil, gas,
education, and health care industries among others. In turn, each of
these interest groups has organized or expanded its effort to influence
Government activities at all l evels, and the success of those efforts
has stimulated the organization of still other lobbies to augment or
oppose the presence of the first in Washington. 'We have a fragmented,
Balkanized society,' Stuart Eizenstat, President Carter's chief adviser
for domestic affairs, has said, 'with an economic proliferation of
special economic interest groups, each interested in only one domestic
program -- protecting it, having Government spend more for it,
unwilling to see it modified.'... Tom Matthew, a co nsultant to several
public-interest groups on the political left, says that probably no
more than 6 percent of the population is involved in the whole beehive
of activity -- from the people sending in contributions to some causes
to the people traveling to Washington or to state capitals to do their
lobbying. The rest of the population only lives with the results.
In what can be referred to as the "pusher" theory of government, the
incumbents of Congress have themselves created the conditions requiring
their intervention:
'The nature of the Washington system is now quite clear, ' Morris P.
Fiorina, Associate Professor of Political Science at the California
Institute of Technology, wrote in a book published last year,
'Congress: Keystone of the Washington Establishment.' 'Congressmen earn
electoral credits by establishing various Federal programs,' Mr.
Fiorina wrote. 'The legislation is drafted in very general terms, so
some agency must translate a vague policy mandate into a functioning
program, a process that necessita tes the promulgation of rules and
regulations and, incidentally, the trampling of numerous toes. At the
next stage, aggrieved and or hopeful constituents petition their
Congressmen to intervene in the complex process of the bureaucracy.'
'The cycle close s,' he continued, 'when the Congressman lends a
sympathetic ear, piously denounces the evils of bureaucracy, intervenes
in the latter's decisions, and rides a grateful electorate to ever more
impressive electoral showings. Congressmen take credit coming and
going. They are the alpha and omega.'
Under the system of rule by special interests, the Congressmen has "two
principal functions: to make laws and to keep laws from being made.. ..
The first of these he and his colleagues perform only with sweat,
patience and a remarkable skill in the han dling of creaking machinery;
but the second they perform daily, with ease and infinite variety."
Congressmen can protect your industry -- for a price. Here are some
examples:
(1) "[I]t was found in extensive experiments that cash housing
allowances worked better in many cities than the cumbersome, costly
subsidy programs. But such allowances were not even under
consideration, a White House official said, because the commercial and
professional interests that feed off the subsidy programs in effect
would surely block such a move."
(2) "A number of proposed changes long supported by a majority of the
people, according to polls of public opinion, have never been enacted
because of special-interest pressure. President Carter sent his tax
package to Congress assured, on the basis of polling data, that more
than 60 percent of the people favored most of the bill's provisions.
But in the House Ways and Means Committee, it was turned into a vehicle
for reducing the capital gains tax as well as for general tax
reduction."
(3) "In 1974, the Senate passed legislation for no-fault auto
insurance, intended to save the public money. The American Trial
Lawyers Association, whose members earn money for trying negligence
suits, set up a political action committee to contribute to
Congressional candidates. In 1973, the Senate defeated the measure.
Common Cause reported that it found that five Senators who were up for
re-election in 1976 switched their votes from 'yes' to 'no' between
1974 and 1975 and, subsequently, received substantial campaign
contributions from the lawyers, who poured half a million dollars into
the 1976 campaigns and have continued to make contributions. Last
summer, the House Commerce Committee killed a no-fault insurance bill
by a vote 22 to 19. The sponsor, Representative Bob Eckhardt, Democrat
of Texas, said opposition from the lawyers was the chief reason for the
bill's defeat."
THE RISE OF SPECIAL INTERESTS AND THE INCUMBENCY EFFECT
The rise of special interest rule has created an incumbency effect;
special interests give money to incumbents, who sit on the committees
affecting these interests. A permanent quid pro quo is established --
votes for contributions. More contributions means a greater ability to
defeat challengers. Challengers, who have nothing to "bring to the
table," are at a tremendous disadvantage, as Phillip Stern noted in The
Best Congress Money Can Buy:
"In 1986, out of 214 House contests in which the incumbent sought
reelection, GE [the General Electric Pac] backed the incumbent in 211
(including 34 in which the incumbent had no opponent). That is, GE
selected the incumbent 98.6 percent of the time. A side from a single
instance where GE backed both the incumbent and the challenger, in only
3 of 214 contests -- 1.4 percent -- did the GE PAC managers find the
challenger preferable to the incumbent. It was as if someone from On
High had issued instruc tions: 'Never mind candidates' party
affiliation, their attitudes toward big business, or their need for
campaign funds. Whatever you do, support the incumbent.'"... [I]n
contests where incumbents were seeking reelection in 1986, PACS overall
gave mor e than 88 percent of their money to them and only 12 percent
to challengers."
The massive influx of cash worked: in 1986, incumbents had a 98 percent
success rate. Incumbents not only receive money from local interests,
but also national special interests, interests that have a great deal
to gain financially from the "right" vote s:
"Dallas's Democratic Representative Martin Frost offers an illustrative
case study of the dairy PACs' generosity to such an urban
representative. His largely big-city district contains, at most, three
dairy farmers -- and some 527,000 dairy consumers. Many of the latter
have incomes below the official government poverty line and can ill
afford to pay the higher dairy prices the government subsidy program
almost surely causes.Therefore, in voting for the higher subsidy level,
Congressman Frost sided wit h the three dairy farmers in his district
against the interests of the hundreds of thousands of consumers. Why? A
relevant factor to consider while pondering that question is the
$45,050 the dairy lobby had lavished on this big-city congressman in
the e ight years 1979 through 1986. That made him the fifteenth-highest
recipient of dairy money among the 435 members of the House, rural or
urban."
Perhaps the most dramatic charts in Stern's book are charts showing
extremely disturbing correlations between funds received from special
interests and votes on legislation affecting those interests. For
example, here are the correlations between money r eceived and votes
cast on the dairy subsidy issue:
OF THOSE RECEIVING THIS... THIS PERCENT
AMOUNT FROM THE DAIRY LOBBY VOTED FOR DAIRY
IN 1979 THROUGH 1986... SUBSIDIES IN 1985
MORE THAN $30,000 100 %
$20,000 TO $30,000 97 %
$10,000 TO $20,000 81 %
$2,500 TO $10,00 60 %
$1 TO $2,500 33 %
ZERO 23 %
This effect, visible on recorded votes, must be even more pronounced
where the votes aren't recorded -- in discussions after-hours and
within the committees. In this manner, the fundamental maxim of
Republican and Democratic government, majority rule, h as been entirely
subverted.
THE SEPARATION OF POWERS AND UNDUE ATTENTION TO LOCAL INTERESTS
Delay. A lack of Accountability. Obliteration of the principle of
Majority Rule. But these are not the only consequences of the
Separation of Powers. In addition, the system as instituted interferes
with an essential criterion for a desirable legislat ure: that the
legislature take a national, as opposed to a parochial view:
"One desirable criterion for national legislatures is the ability of
both individual members and the institution to take a broad national
view of problems and to act in the national interest.... A small
benefit for the nation as a whole, for example, s hould not necessarily
be implemented if serious damage would accrue to a region of the
nation. At the same time, a minor benefit for part of the nation should
not be purchased at the cost of severe hardship to the nation as a
whole." The authoritative allocation of resources often occurs in
national legislatures. This is a critical task and when performed
poorly can result in waste. In some instances the resources being
allocated are scarce. The waste of such resources may inflict harsh
costs on a particular segment in a society or on the nation at large.
The thoughtful allocation of resources in an efficient manner can make
or break the welfare of a nation."
Even though Congress takes action collectively, parochialism results
since voting by Congressmen takes place individually:
"While the national legislature as an entity may receive low popular
ratings, it is possible for individual legislators to receive
undeserved high ratings from their states or districts. Many of these
legislators are reelected and as incumbents appear to benefit from
citizen ignorance. Apparently the electorate perceives that the
problems with the national legislature are caused by representatives
from districts or states other than their own, and legislators often
reinforce this view. Due to ignorance, citizens may not discern whether
or not their representatives are good legislators who can mobilize
support for their bills and pass legislation, thereby solving problems
and implementing their objectives. Citizens may also have difficu lty
identifying merely symbolic action wherein legislators express an
opinion but suggest no policy changes, or make statements of policy
without sponsoring legislation to implement it.... Members may
contribute to voter ignorance and apathy in a varie ty of ways.
Legislators may stress voter access and identification with the
constituents more than what is going on in the national legislature."
This structure inevitably leads to parochialism for financial reasons
-- the delivery of "pork barrel" projects to local constituents:
"Congress is often accused of being parochial, reflecting narrowly
based constituent interests rather than assuming a national view....
One measure of parochialism in Congress is the delivery of pork barrel
legislation to congressional districts and st ates. This may consist of
special projects, new programs, or public works or buildings which
benefit constituents in a particular geographic region and do not
benefit other citizens. The conferment of such benefits is a constant
feature of congressional policy making. Particularized benefits have
two properties: they are usually given out to a specific individual
group or geographic constituency and are usually distributed in an ad
hoc fashion so that the member of Congress representing the benefited c
onstituency can claim credit for the allocation. Representatives and
Senators view pork barrel legislation as crucial to reelection, a
perception which diminishes the incentive among current members to
abolish or limit its use...."
A process which rewards the creation of "pork barrel" legislation must
penalize the creation of legislation in the national interest, and must
inevitably effect the quality of legislation:
"Given [the] number of legislative hurdles, important legislation is
often side-tracked, permanently derailed, or significantly modified by
interest groups at any one of the various gates through which proposed
statutes must pass. Interest groups have be come well aware of the
lengthy, sequential, internally specialized, bicameral legislative
processes. They often manage to impede or alter bills at veto points
along the process. The length of the process is not only ponderous, but
in the Washington envi ronment where the interest group legislative
'hunting season' never closes, the long duration of the process
increases bill vulnerability to special interest attacks.... For
example, in 1965 President Lyndon Johnson suggested a bold solution to
the pro blems of crime and poverty in inner-city slums. As the bill was
originally drafted, about a dozen cities would have received large sums
of money to be spent under federal supervision in order to promote
racial integration and renovate the slums. Passage of this program in
Congress became a study in compromise. Compromise, in itself, is not an
undesirable value, but it can subvert the original purpose of
legislation. Proponents of the "Demonstration Cities" legislation had
to compromise extensively. T hey had to dismiss the goal of racial
integration, loosen federal control over the administration of the
program, and make more cities eligible to participate (approximately
150). What began as a noble attempt to renew decaying urban centers
ended up as another pork barrel project that ineffectively divided
funds among constituencies in Congress...."
According to Lawrence Dodd, the Constitution lacks a centralizing force
which would ameliorate this nascent parochialism:
"The Constitution provides no function or structure to Congress that
would create internal congressional incentives supportive of power
centralization, coordination, and institutional integrity. It merely
assumes that these will be maintained by the natu ral operation of
political life in a simple, agrarian society. When the latter
assumption is no longer valid, when it is no longer true that policy
problems will be simple and congressional life will draw only a few
legislators committed to long-term con gressional careers and power,
there is no provision within the constitutional system -- no incentive
system -- that will lead members naturally to sustain mechanisms of
institutional centralization."
A government without a centralizing force is a government which
compromises by passing bills which benefit local areas, but can only
with great difficulty pass bills in the National Interest.
Thus the problems that have resulted from the political theory of the
Framers. In review, we find the Separation of Powers principle has made
impossible the fulfillment of the Preamble strictures that government
must "establish Justice" and "promote the General Welfare." These two
critical criteria have been violated, and so have four other critical
but unenumerated criteria: efficiency, accountability, majority rule,
and national interest representation. Instead, we universally find in
government dela y, unaccountability, minority rule, and parochialism.
These six criteria violations are serious enough, but there is one
final violation -- in fact, the last that will confront any
constitution: the violation of the principle of constitutional
self-preservation. The Separation of Powers, in seeking to pre serve
the form of government by crippling government, made the formation of a
subterranean, unconstitutional government necessary. As Donald Robinson
wrote, "It is not simply that the separation of powers leads to
deadlock (or gridlock) and stalemate... the separation of powers poses
a deadly danger to constitutional government itself." A principle meant
to preserve the Constitition has led inexorably to its downfall.
End Parts 2 & 3.
© 1991 Barry Krusch
For further information write Americans for a Constitutional
Convention, 127 E. 59th St., NY, NY, 10022, call 1-212-408-3150, or
send E-mail to 72030,2635.WHY WE NEED A NEW CONSTITUTION
PART 4
DELEGATION AND THE ESCAPE FROM THE CONSTITUTION
All legislative powers herein granted shall be vested in a Congress of
the United States, which shall consist of a Senate and House of
Representatives.
_ Article 1, Section 1 of the U.S. Constitution
Tyranny has perhaps oftener grown out of the assumptions of power,
called for, on pressing exigencies, by a defective constitution, than
by the full exercise of the largest constitutional authorities.
_ James Madison, Federalist 20
Article 1, Section 1 of the Constitution states in no uncertain terms
that "All legislative powers herein granted shall be vested in a
Congress of the United States..." This reflects John Locke's view,
stated in his Second Treatise, that "the legisla tive can have no power
to transfer their Authority of making Laws, and place it in other
hands." This principle was etched indelibly into our Constitution in
Article 1, Section 1. According to John Jay, the Framers had "given the
power of making laws t o the legislature..." Therefore, it was no
surprise when Chief Justice Taft stated in 1937 that "it is a breach of
the National fundamental law if Congress gives up its legislative power
and transfers it to the President, or to the Judicial branch.. ."
Under our constitutional system, there are sound reasons to prohibit
delegation of this legislative power. To permit the concept of
delegation would allow the laws created by delegated authorities to
evade the system of checks and balances: under a cons titution of
delegated authority, the people would have no check against unpopular
legislation, a check which was built into the Constitution expressly
for that purpose. If an administrative branch were to pass a law that
the people did not approve, the p eople would be helpless, since they
would not know who voted for that law. And there would be no one to
vote out, since administrative officials are not elected by the people.
Furthermore, even if a counter-law were to be passed by the House of
Represent atives, that counter-law could be checked by the Senate,
President, or Supreme Court -- the three checks against popular action
in the Constitution. The same would be true were the Supreme Court
given legislative power. Again, any attempt by the people t o check
judicial lawmaking[!] directly would itself be checked by the
Constitutional bodies existing for that purpose. For this reason,
delegation was strictly prohibited by our Framers. As Hamilton stated,
"[E]very act of a delegated authority, contrary to the tenor of the
commission under which it is exercised, is void. No legislative act,
therefore, contrary to the Constitution, can be valid. To deny this,
would be to affirm, that the deputy is greater than his principal; that
the servant is above his master; that the representatives of the people
are superior to the people themselves; that men acting by virtue of
powers, may do not only what their powers do not authorize, but what
they forbid."
But here was the dilemma: a government must govern, and a
constitutionally crippled government could not constitutionally govern.
To govern, Congress was forced to delegate its exclusive legislative
authority. The rise of industry in the Twentieth Centu ry necessitated
a veritable explosion of delegation of legislative authority by
Congress to such entities as the Federal Communications Commission, the
Food and Drug Administration, the Environmental Protection Agency, the
Interstate Commerce Commission, the Securities and Exchange Commission,
the Federal Trade Commission, the Internal Revenue Service, the
Occupational Safety and Health Administration -- the list goes on and
on. As the Court noted in Ins. v. Chadha, "[l]egislative authority is
routinely delegated to the Executive Branch, to the independent
regulatory agencies, and to private individuals and groups." According
to the Court, "[t]he effective functioning of a complex modern
government requires the delegation of vast authority which, by vir tue
of its breadth, is legislative or 'quasi-legislative' in character.. ."
And though it was the self-appointed umpire of constitutional
legitimacy, the Supreme Court nonetheless sanctioned this
unconstitutional process: "The Court, recognizing that modern
government must address a formidable agenda of complex policy issues,
countenanced the delegation of extensive legislative authority to
Executive and independent agencies." The scope of delegation escalated
as initial restrictions began disappeari ng: "Theoretically, agencies
and officials were asked only to 'fill up the details,'... [i]n
practice however, restrictions on the scope of the power that could be
delegated diminished and all but disappeared. In only two instances did
the Court find an unconstitutional delegation." Delegation mushroomed.
Over time, Congress not only forfeited its constitutional role as the
exclusive legislative body, but also the primary legislative body.
As Justice White wrote:
"The wisdom and the constitutionality of these broad delegations are
matters that still have not been put to rest. But... by virtue of
congressional delegation, legislative power can be exercised by
independent agencies and Executive departments witho ut the passage of
new legislation. For some time, the sheer amount of law -- the
substantive rules that regulate private conduct and direct the
operation of government -- made by the agencies has far outnumbered the
lawmaking engaged in by Congress throu gh the traditional process."
What are generally referred to as administative "regulations" or
"rules" are, in fact, laws. As Hamilton stated, the "essence" of the
legislative authority was "to enact laws, or, in other words, to
prescribe rules for the regulation of the society..." Again, Justice
White:
"There is no question but that agency rulemaking is lawmaking in any
functional or realistic sense of the term. The Administrative Procedure
Act, 5 U.S.C. 551(4), provides that a 'rule' is an agency statement
"designed to implement, interpret, or prescr ibe law or policy."
(emphasis supplied) When agencies are authorized to prescribe law
through substantive rulemaking, the administrator's regulation is not
only due deference, but is accorded 'legislative effect'... These
regulations bind courts and officers of the Federal Government, may
pre-empt state law... and grant rights to and impose obligations on the
public. In sum, they have the force of law."
Over time, a new branch of government was created without the benefit
of formal approval by the states or the people as required by the
Constitution in Article V. According to Justice Jackson, "The rise of
the administrative bodies probably has been the m ost significant legal
trend of the last century.... They have become a veritable fourth
branch of the government, which has deranged our three-branch legal
theories." On this road there was no terminus. Justice Sutherland, in
United States v. Curtiss -Wright Export Corporation, 299 U.S. 304, 327
(1936), "used language implying that there is virtually no
Constitutional limit to Congress's power to delegate to the President
authority which is 'cognate' to his own constitutional powers.'... In
brief, t he President's duty 'to take care that the laws be faithfully
executed' becomes often a power to make the laws." And the executive
branch did indeed exercise its newly granted power to make laws. As
Senator James Abourezk described the situation in 1 975, "[l]ast year
the Congress enacted 647 public laws while approximately 6,000
administrative rules were adopted by 67 Federal agencies, departments,
and bureaus. More law, in the sense of rules governing our society, is
produced by the executive branc h than is produced by the national
legislature." According to Levitas and Brand (1984) :
"[I]f Thomas Jefferson, James Madison, or any of the other Founding
Fathers were to visit us today, they would be... shocked by the
existence of administrative agencies and by the delegation of lawmaking
power to this part of the executive.... As no ted by Justice Jackson,
'administrative agencies have been called quasi-legislative,
quasi-executive, or quasi-judicial, as the occasion required in order
to validate their functions within the separation of powers scheme of
the Constitution. In effect, all recognized classifications have broken
down and the qualifying prefix 'quasi' is a smooth cover that we draw
over confusion as we might use a counterplane to conceal a disordered
bed.'"
Tugwell viewed the existence of the "fourth branch" of government as
conclusive proof of the inadequacy of the Constitution, an inadequacy
which made escape from the Constitution necessary:
"[B]ecause of its own incapacities... the Congress has created the
regulatory agencies. They are justified by the implication that they
are necessary to protect the public. They deny altogether the principle
of separation.... they carry on highly complicated technical operations
and are largely self-governing. Their immense bureaucracies constitute
a large part of modern government. Their existence is a constant
reminder that escape from the Constitution has been accomplished on a
grand scale an d without notable objection."
Because Congress had delegated its exclusive legislative authority, a
popular backlash arose against government bureacracy in the 70's, which
led to the increasing use of a device which would allow the people to
regain control over the unconstitutional fo urth branch, known as the
one-house legislative veto. Utilizing this provision, Congress could
delegate legislative authority, but any law passed by one of the
administrative bodies could be vetoed by either House of Congress.
Strictly speaking, this ve to was unconstitutional, but delegation was
itself unconstitutional, and the legislative veto attempted to restore
some sort of balance. Unfortunately for the Democratic Congress, it
decided to veto one of President Reagan's arm sales. This legislative
indiscretion led the executive branch to look for a case it could
sponsor for review by the Supreme Court, and hold the legislative veto
unconstitutional. The Executive branch found the case, called INS v.
Chadha. And, in one of their least shining hou rs, the Supreme Court
held the legislative veto unconstitutional, while at the same time
allowing the unconstitutional delegations to continue!
The Supreme Court rejected the legislative veto with this reasoning:
"[t]he fact that a given law or procedure is efficient, convenient, and
useful in facilitating functions of government, standing alone, will
not save it if it is contrary to the Constitu tion. Convenience and
efficiency are not the primary objectives -- or the hallmarks -- of
democratic government..." The Court, after noting "the obvious flaws of
delay, untidiness, and potential for abuse" in our constitutional
structure, stated tha t
"[T]he Framers ranked other values higher than efficiency... The
choices we discern as having been made in the Constitutional convention
impose burdens of governmental processes that often seem clumsy,
inefficient, even unworkable, but... [t]here is no support in the
Constitution or decisions of this Court for the proposition that the
cumbersomeness and delays often encountered in complying with explicit
constitutional standards may be avoided... "
Yet, in a textbook example of the Supreme Court's selective attention,
the Court failed to apply this same reasoning to the Delegation
Doctrine! Justice White, dissenting, attacked this truly bizarre
reasoning, and pointed out the necessity of escaping f rom the
Constitution:
"Without the legislative veto, Congress is faced with a Hobson's
choice: either to refrain from delegating the necessary authority,
leaving itself with a hopeless task of writing laws with the requisite
specificity to cover endless special circumstances a cross the entire
policy landscape, or in the alternative, to abdicate its law-making
function to the Executive Branch and independent agencies. To choose
the former leaves major national problems unresolved; to opt for the
latter risks unaccountable poli cymaking by those not elected to fill
that role...."
The battle over the legislative veto and the general acceptance of the
Delegation doctrine by the Supreme Court reveal that the nature of our
government has changed dramatically. The Delegation doctrine is only
one example of the phenomenon of escalation , which as Eliot Aronson
described, is "self-perpetuating. Once a small commitment is made, it
sets the state for ever-increasing commitments. The behavior needs to
be justified, so attitudes are changed; this change in attitudes
influences future decis ions and behavior." And escalation has indeed
occurred in the political arena. According to Justice White, "From the
summer of 1787 to the present the Government of the United States has
become an endeavor far beyond the contemplation of the Framers." (
Chadha at 2798.) Aronson's "self-perpetuating" insight explains this --
people are likely to accept the political status quo simply because
they accepted the status quo before. The tendency to accept the
accepted is accompanied by the quiescent emergenc e of rules. New laws
are formed. New interpretations are made. New actions are taken. In
this manner, where a government is allowed to "evolve," a government
entirely different from the one first conceived can be established.
The Framers of our Constitution were well aware of this escalation
principle. As Edmund Randolph wrote to the Speaker of the Virginia
House of Delegates on October 10, 1787, "... a bad feature in
government, becomes more and more fixed every day." Mad ison stated
that "abuses... of long standing, would [take] deep root, and would not
easily be extirpated," and warned that these abuses would provide
precedents, each one of which would be "a germ of necessary and
multiplied repetitions." Thus, each a buse or "usurpation of power"
would be "but the first link of a long chain of repetitions, every
subsequent interference being naturally produced by the effects of the
preceding. Hamilton warned that if "an improper spirit of any kind
should happen to pr evail" in society, "that spirit would be apt to
infuse itself into the new members, as they come forward in succession.
The mass would be likely to remain nearly the same, assimilating
constantly to itself its gradual accretions." Hamilton reiterated the
"germ" metaphor of Madison: "[t]here is a contagion in example which
few men have sufficient force of mind to resist."
This ability to surreptitiously change the nature of government through
escalation meant that government would not only shift the allocation of
powers through delegation, but would also gradually assume new powers,
powers not accounted for when the terms of office of our
representatives and our system of checks and balances were established.
Due to the principle of escalation, people have grown used to
usurpations of power by the government. Whether the issue is PAC money,
the shift of legislative power from Congress to the Presidency and the
Supreme Court, the incumbency effect, or even unpalatable societal
developments like the ever-increasing National Debt, we have become
inured to regression. And each acceptance of a small digression from
the norm has laid the foundation for our acceptance of future
digressions, leading to the emergence of new rules and, ultimately, a
new form of government.
PART 5
THE EMPIRICAL CONSTITUTION
I consider the foundation of the Constitution as laid on this ground:
that 'all powers not delegated to the U.S. by the Constitution, not
prohibited by it to the states, are reserved to the states or to the
people'... To take a single step beyond the b oundaries thus specially
drawn around the powers of Congress, is to take possession of a
boundless field of power, no longer susceptible of any definition.
_ Thomas Jefferson, 1791
The source of constitutional destruction... lies in the Constitution
itself and its inappropriateness today as a guide to representative
government.
_ Laurence Dodd, 1977
The Constitution was evaded not only because of institutional
inefficiency, but because a strict reading of the Constitution would
have crippled the government. Jefferson's view of a limited
Constitution (i.e., a Constitution that allowed the Federal gov ernment
to pass laws in a particular area only if the power was explicitly
granted) was shattered by John Marshall in McCulloch v. Maryland, 4
Wheat 316 (1819). As John Marshall stated in that famous opinion:
"We admit, as all must admit, that the powers of the government are
limited, and that its limits are not to be transcended. But we think
the sound construction of the constitution must allow to the national
legislature that discretion, with respect to the means by which the
powers it confers are to be carried into execution, which will enable
that body to perform the high duties assigned to it, in the manner most
beneficial to the people. Let the end be legitimate, let it be within
the scope of the consti tution, and all means which are appropriate,
which are plainly adapted to that end, which are not prohibited, but
consist with the letter and spirit of the constitution, are
constitutional."
Marshall later stated in Gibbons v. Ogden, 9 Wheat. 1(1824) that
"narrow construction... would cripple the government, and render it
unequal to the object for which it is declared to be instituted..."
This view was extremely controversial. As Jam es Madison stated (with
reference to the "necessary and proper" clause in Article 1, Section
8), the government could only be given new powers through amendment,
not through judicial interpretation: "Whatever meaning this clause may
have, none can be admi tted, that would give an unlimited discretion to
Congress.... Had the power of making treaties... been omitted, however
necessary it might have been, the defect could only have been. ..
supplied by an amendment to the constitution." But Hamilt on, Madison's
contemporary and a fellow Federalist, argued against narrow
interpretation, and introduced the concept of "implied" powers, which
opened a veritable Pandora's Box of potential "interpretations":
"[T]here are implied, as well as express powers, and... the former are
as effectually delegated as the latter.... The whole turn of the
[necessary and proper] clause... indicates that it was the intent of
the convention by that clause to give a liberal latitude to the
exercise of the specified powers.... [A]n adherence to the letter of
its powers would at once arrest the motions of the government."
But Andrew Jackson stated (many years later) that there were natural
limits to the necessary and proper clause -- for example, delegation:
"It can not be 'necessary' or 'proper' for Congress to barter away or
divest themselves of any of the powers vested in them by the
Constitution to be exercised for the public good." Jackson's view, as
we have seen, was ignored.
James Madison, writing in 1819, could see the handwriting on the wall,
and argued vehemently that if such a broad interpretation were given,
the constitution would not have been ratified:
"[W]hat is of most importance is the high sanction given to a latitude
in expounding the Constitution which seems to break down the landmarks
intended by a specification of the Powers of Congress... [I]t was
anticipated I believe by few if any of the f riends of the
Constitution, that a rule of construction would be introduced as broad
& as pliant as what has occurred. And those who recollect, and still
more those who shared in what passed in the State Conventions, thro'
which the people ratified the C onstitution, with respect to the extent
of the powers vested in Congress, cannot easily be persuaded that the
avowal of such a rule would not have prevented its ratification."
According to Madison, broad interpretation would eviscerate the concept
of a written constitution:
"It has been the misfortune, if not the reproach, of other nations,
that their Govt's have not been freely and deliberately established by
themselves. It is the boast of ours that such has been its source and
that it can be altered by the same authority o nly which established
it. It is a further boast that a regular mode of making proper
alterations has been providently inserted in the Constitution itself.
It is anxiously to be wished, therefore, that no innovations may take
place in other modes, one of which would be a constructive assumption
of powers never meant to be granted. If the powers be deficient, the
legitimate source of additional ones is always open, and ought to be
resorted to...."
This opinion was in line with the views of Jefferson, who had rejected
the road of broad construction, on similar grounds:
"When an instrument admits of two constructions, the one safe, the
other dangerous, the one precise, the other indefinite, I prefer that
which is safe and precise. I had rather ask an enlargement of power
from the nation where it is found necessary, than to assume it by a
construction which would make our powers boundless. Our peculiar
security is in possession of a written constitution. Let us not make it
a blank paper by construction."
It was not to be, however. As Marshall and Hamilton saw, government
could not govern in a growing society under a narrowly construed
constitution. Consequently, as Tugwell noted,
"[A]t the very beginning of the government's operations the
Constitution began to unfold... it was in these earliest years that the
compromising began and the Constitution began to soften and lose its
sharp outlines.... Once strict construction was abandoned, the limits
of implication depended on what powers could be seized and kept."
And this continued over time:
"The Constitution, as a product of [Supreme] Court interpretation,
became more and more ambiguous. What had begun in the nation's very
administration was relied on more as the years passed and
extrapolations became more numerous. Because they were never certainly
permanent, the nation found itself living with a basic law it revered
but could neither understand nor depend on."
Over time, the Supreme Court developed a body of "law" through the
doctrine of stare decisis. Under the policy of stare decisis ("the
decision stands"), law was established by the judiciary through the
observation of their prior decisions as "precedents" -- judicial
determinations that had to be obeyed as if they were laws. This, of
course, directly contradicted the provision in Article 6 that the
Constitution (and not the opinions of the Supreme Court) was the
"supreme law of the land." But, as with t he expansion of Congressional
power, there were pragmatic reasons for accepting the doctrine of stare
decisis (and thus expanding the power of the judiciary as well).
According to Chief Justice Stone, "the rule of stare decisis embodies a
wise policy bec ause it is often more important that a rule of law be
settled than that it be settled right." A grim truth. Nature abhors a
vacuum, and so does society. The Supreme Court filled the vacuum
created by ambiguity and the exceedingly difficult process of c
onstitutional amendment contained in Article V by recognizing its prior
decisions as precedents, even though those precedents may themselves
not have been in line with the written text of the Constitution. This
phenomenon, however, was not intended by th e Framers of our
Constitution:
"What [the Framers] did not foresee is that because of this provision
[Article III, Section 1: "The judicial power of the United States shall
be vested in one supreme court... ], in conjunction with the extremely
difficult arrangements they set up for amending the Constitution, the
federal courts would sometimes pervert and abuse this power and would
in effect write legislation of their own. What they foresaw still less
was that because the members of the Supreme Court as well as of other
federal cou rts owed their appointments to the President and the
Senate, they would be creatures of the central government; and
therefore their 'interpretations,' over the years, would steadily tend
toward the aggrandizement of centralized federal power at the expens e
of states' rights. The Tenth Amendment, in fact, has long been treated
by the Supreme Court as if it did not exist."
Dean Thomas Brennan rejected the notion that the Supreme Court could
legitimatetly either implement or ratify constitutional revisions:
"If indeed, courts may appropriately 'apply values not articulated in
the constitutional text'; if they are to act as 'expounders of basic
national ideals of individual liberty and fair treatment, even when the
context of those ideas is not expressed... in the written
Constitution,'... then it is literally true... that the Supreme Court
exercises veto power over the actions of state legislatures,
executives, and judiciaries, and that the Court is a 'continuing
constitutional convention, updating the meaning of the Constitution as
new times and new situations demand...'"
Indeed, the Supreme Court, in ratifying the usurpations of power by all
branches of government, has functioned as a "continuing constitutional
convention":
"There are those who hold that the American Constitution is not a
written law at all, but is rather the sum total of all those customs,
traditions, institutions and practices which have grown up over the
years, and which influence or control the workings of our national
government. In this view, the Constitution is considered coextensive
with the governing Establishment. It is the way things are. It is the
distribution of power, as it actually exists and is effectively
exercised in modern American soci ety. This might be termed the
EMPIRICAL CONSTITUTION.... It may be that every written code or
constitution is eventually eroded by conflicting customs. It is,
however, peculiar to the American experience that disregard and
diminishment of our writte n Constitution has been a work of great
sophistry, combined with an incongruous deference to the original text.
We have paid lip service to the immutable words of the Constitution. We
have demonstrated great resistance to constitutional amendments propo
sed through the processes established by Article V. At the same time,
our courts have shown blithe disregard for the intent of the authors of
the Constitution and the obvious purposes and understanding of those
who ratified the Constitution, whenever it has seemed practical or
expedient to do so. "
As Former Chief Justice Hughes stated, "We are under a Constitution,
but the Constitution is what the judges say it is." This was confirmed
by the authors of THE CONSTITUTION AND WHAT IT MEANS TODAY, who noted
that there has been an "enormous change in t he meaning of the
Constitution over the last twenty years. One does not fully appreciate
the full impact of that change until he goes over the Constitution
provision by provision." This would not have surprised Robert Yates,
one of the Framers of our C onstitution who later wrote essays against
ratification of the Constitution. According to historian Jackson Turner
Main, Yates observed in 1788 that
"[M]ost of the powers [of the Constitution] were granted 'in general
and indefinite terms, which are either equivocal, ambiguous, or which
require long definitions to unfold the extent of their meaning.' The
meaning of the Constitution would be decided b y the Supreme Court, and
therefore the judges could 'mould the government, into almost any shape
they please.'"
Vague language gave the green light for judicial constitutional
revision, a phenomenon which appeared early on in our Republic, as
predicted by Yates. The Supreme Court, the final link in the
constitutional chain, granted itself the power of exclusive co
nstitutional "interpretation." Jefferson vehemently argued against the
power of the Supreme Court to exclusively interpret the Constitution, a
power which goes far beyond our traditional conception of judicial
review as the power to declare laws unconsti tutional. As Jefferson
said,
"In denying the right they [the judiciary] usurp of exclusively
explaining the constitution, I go further than you do, if I understand
rightly your quotation from the Federalist, of an opinion that 'the
judiciary is the last resort in relation to the othe r departments of
the government [']... if this opinion be sound, then indeed is our
constitution a complete felo de se [a suicide]. For intending to
establish three departments, co-ordinate and independent, that they
might check and balance one anothe r, it has given, according to this
opinion, to one of them alone, the right to prescribe rules for the
government of the others, and to that one too, which is unelected by,
and independent of the nation. For experience has already shown that
the impeachm ent it has provided is not even a scarecrow... The
constitution, on this hypothesis, is a mere thing of wax in the hands
of the judiciary, which they may twist, and shape into any form they
please."
In point of fact, the Constitution has indeed become a "mere thing of
wax in the hands of the judiciary," as the Supreme Court has actually
rewritten provisions of the Constitution by construction, and created
an Empirical Constitution -- that is, the con stitution we actually
live under, as opposed to the one contained in that vault in
Washington, D.C. To take one of hundreds of examples, the Court has
stated on different occasions that the provision "The trial of ALL
crimes... shall be by jury" in Ar ticle 3 of the Constitution [emphasis
supplied] (and a similar provision in the Sixth Amendment) really means
"The trial of all SERIOUS crimes... shall be by jury." The Court, of
course, is to be the arbiter of what distinguishes "serious" from "pet
ty" crimes. In one of the rare acknowledgments by the court of the
extent to which they have revised the Constitution by construction,
Justices Black and Douglas stated in their concurrence in Baldwin v.
New York, 399 U.S. 66, 74-5 (1969) that
"Many years ago this Court, without the necessity of an amendment
pursuant to Article V, decided that 'all crimes' did not mean 'all
crimes,' but meant only 'all serious crimes.' Today three members of
the Court would judicially amend that judicial amend ment and
substitute the phrase 'all crimes in which punishment for more than six
months is authorized.' This definition of 'serious' would be enacted
even though those members themselves recognize that imprisonment for
less than six months may still hav e serious consequences. This
decision is reached by weighing the advantages to the defendant against
the administrative inconvenience to the State inherent in a jury trial
and magically concluding that the scale tips at six months'
imprisonment. Such constitutional adjudication, whether framed in terms
of 'fundamental fairness,' 'balancing,' or 'shocking the conscience,'
amounts in every case to little more than judicial mutilation of our
written Constitution. Those who wrote and adopted our Constit ution
engaged in all the balancing necessary. They decided that the value of
a jury trial far outweighed its costs for 'all crimes' and '[i]n all
criminal prosecutions.' Until that language is changed by the
constitutionally prescribed method of amendm ent, I cannot agree that
this Court can reassess the balance and substitute its own judgment for
that embodied in the Constitution."
A rare admission. But every term of the Court brings new changes to our
Constitution. In a remarkable piece of scholarship, Dr. Thomas Ladanyi
bravely attempted to reduce to writing the Supreme Court's
Constitutional rewrites in his book THE 1987 CONSTI TUTION. The Baldwin
decision explains in part Ladanyi's version of the Sixth Amendment of
the Empirical Constitution, which begins as follows: "In all
prosecution of serious crimes, subject to sentences exceeding six
months...", replacing the original , which simply states "In all
criminal prosecutions..." We have previously noted the Delegation
doctrine. The 1787 Constitution reads as follows:
"All legislative powers herein granted shall be vested in a Congress of
the United States, which shall consist of a Senate and House of
Representatives."
Short, sweet, and to the point. But the Empirical Constitution reads
somewhat differently, after various delegations of power have been
factored in:
"The Congress of the United States, which consists of a Senate and a
House of Representatives, possesses all legislative power herein
granted, with the exception of the following, all of which may have the
same force and effect as a law directly adopted by the Congress:
international treaties initiated by the President, subject to approval
by the Senate and executive agreements with other sovereign states
entered into by the President without Congressional approval, both
relating solely to the external concerns of the Union; executive orders
and regulations issued by the administrative bodies and regulatory
agencies validly created, and the scope of which is properly within the
Congress's authority to delegate; the exercise of war powers by the
Preside nt as Commander-in-Chief; final judgments of courts of law
concerning the interpretation of all laws, treaties, agreements,
orders, rules, regulations and other acts dealt with in this section;
and the Supreme Court's final determinations, in the light of the
dictates and the spirit of this Constitution, as to the validity of all
of the foregoing, as well as its interpretations thereof. While the
Congress may neither delegate its legislative powers to the Executive
and Judicial Branches, nor invest itsel f with their powers, being one
of the three co-ordinate Branches of the National Government, in
carrying out its legislative functions it shall, where proper and
necessary, cooperate with, and, on a mutual basis, provide assistance
to the other two Branch es. Such cooperation and mutual assistance may
include narrowly defined, essential, convenient and fully revocable
delegation of some of its legislative powers."
Note one of the main failings of Supreme Court re-writes. While some
Court decisions have held that Congress may not delegate its powers,
the majority have. This inconsistency is reflected in Ladanyi's
reduction of the Empirical Constitution on the deleg ation issue (may
not vs. may). The Supreme Court is not only poorly equipped to redraft
the Constitution, but their method of operation guarantees an
inconsistency which renders their re-writes permanently ambiguous.
Of course, it is not only Congress which has had its powers revised --
the President's has also. As Hazlitt had noted as early as 1945,
"An American President, it is now generally agreed, has too many
powers, some of them grossly excessive. He has them principally because
the federal government itself has assumed excessive powers, and because
Congress, unable or unwilling to issue thousa nds of regulations and
make a million detailed decisions, delegates its powers to the
President to set up hundreds of regulatory agencies and appoint the
bureaucrats to fill them."
The new powers of the President are dramatically revealed when we
contrast the 1787 Constitution with the Empirical Constitution. Article
2, Section 2, Clause 2 of the 1787 Constitution reads as follows:
"He shall have Power, by and with the Advice and Consent of the Senate,
to make Treaties, provided two thirds of the Senators present concur;
and he shall nominate, and by and with the Advice and Consent of the
Senate, shall appoint Ambassadors, other pu blic Ministers and Consuls,
Judges of the supreme Court, and all other Officers of the United
States, whose Appointments are not herein otherwise provided for, and
which shall be established by Law: but the Congress may by Law vest the
Appointment of suc h inferior Officers, as they think proper, in the
President alone, in the Courts of Law, or in the Heads of Departments."
But Article 2, Section 2, Clause 2 of the Empirical Constitution is an
animal of an entirely different stripe:
"He shall have the power, by and with the advice and consent, or
consent with reservations and amendments, of two-thirds of a quorum
present in the Senate, to make bilateral or multilateral international
treaties negotiated by him on proper subjects not v iolative of
fundamental individual rights granted herein, but other Constitutional
and States rights may be affected in the national interest if no
feasible alternative solution is available. He may optionally effect
treaty aims by entering into executiv e agreements without the Senate's
consent, exercising his own power over foreign affairs and as
Commander-in-Chief, or seek subsequent Senate ratification thereof,
thus turning them into treaties, but shall in all cases promptly advise
the Congress of the contents of such agreements. Non-selfexecuting
treaties and executive agreements requiring implementation by
legislation shall be effectuated at the discretion of the Congress.
Claims of foreign sovereigns, individuals or other entities arising
under t he terms of treaties and executive agreements shall be
resolved, as their nature require, by the President, the courts, or,
where legislative implementation or funds are required, by the
Congress. The President shall exercise broad powers under treaties
with the Indian Nations, and to enter into executive agreements with
them over the disposition of public lands. Treaties and executive
agreement shall terminate by their terms, renegotiation or denunciation
by the President, or alteration or repeal by th e Congress, all subject
to judicial review concerning compliance with the Law of Nations, but
the Congress shall not be compelled to legislate in order to give
effect, where required, to any resulting judicial determination. The
President shall nominate, and by and with the advice and consent of a
majority of a quorum in the Senate, shall appoint ambassadors, other
public ministers and consuls, justices of the Supreme Court,
secretaries, undersecretaries and assistant secretaries of executive
departments , and heads of major quasi-departmental offices established
within the Executive Branch. He shall appoint without such consent, or
delegate the power to appoint, members of his staff, and those of his
executive office, his personal agents, including his diplomatic
representatives abroad, and all members of the civil service in the
Executive and Judicial Branches, consisting of inferior officers
subordinate to heads of executive departments and offices, chiefs of
federal courts, and judges of federal cour ts inferior to the Supreme
Court, but the Congress may by law modify this power, and assign parts
or all of it to the courts of law, or the heads of executive
departments as well. All his non-judicial appointees, including those
approved by the Senate, o r whose dismissal is expressly constrained by
it, may be removed by the President at will, but non-judicial members
of the civil service can only be dismissed for good cause, while
judicial appointees must be terminated by impeachment. Heads and
appointe d officers of administrative agencies and other bodies created
by Congressional legislation shall be removed in accordance with causes
and procedures prescribed therein. In matters concerning presidential
communications relating to the exercise of execut ive authority, an
incumbent President shall not be compelled by the co-equal Branches of
the National Government to testify before them or to reveal the
contents of his or his executive office's papers and other documents,
and this privilege of executive confidentiality extends to his
subordinates, if requested by the President, who may be required to
testify about their conversations and all other forms of communication
with the President, and about presidential papers and other documents,
but, except in vital national security, diplomatic and military
matters, the presumption in favor of protecting the privilege may
challenged, and, considered in camera in court, be rebutted, in order
to obtain essential evidence in a criminal investigation or trial. A n
incumbent or former President shall be immune from tort claims for
damages arising from his exercise of executive powers."
The Judicial Branch, needless to say, has also greatly expanded its own
powers. Article 3, Section 2, Clause 1, originally 12 lines, occupies
THREE PAGES in Ladanyi's book, and is too long to reprint here. But
some of the flavor of the changes to that p rovision may be seen in the
changes to the Preamble found in the Empirical Constitution:
"We the Justices of the Supreme Court of the United States, in order to
maintain and strengthen the Union, redraw the jurisdictional lines
among the legislative, executive and judicial Branches of the National
Government, redefine the Rights of the States , determine the areas of
final authority between various State constitutions and this
Constitution, establish greater, more uniform and equal Justice,
preserve and assure the maintenance of Domestic Tranquility, facilitate
the Common Defense, promote and expand the General Welfare, broaden and
secure the Blessings of Liberty, and provide for affirmative judicial
action to secure and assist in the implementation of these Aims, and in
line with the present needs, necessities, hopes and desires of the
People , including citizens and all other persons within the United
States and its Territories, living in drastically changed material
circumstances, possessed of altered and more varied ideological,
social, political and cultural values, and their Union being p art of a
vastly different world, do ordain that the 1787 Constitution of the
United States and Amendments thereto, and as implemented by appropriate
Congressional legislation and the proper exercise of Presidential
powers, be interpreted as reflected in the Articles that follow, and
that such interpretations be recognized as the Supreme Law of the Land
and be applied with the same authority, force and effect as the 1787
Constitution, as amended, has come to have in the years since its
adoption."
Amend the Constitution? What Constitution? Which Constitution? As
Tugwell stated, "The pretense that a body of agreed higher law exists
is a kind of national conspiracy, maintained because of need. A
Constitution is necessary to the American system. That it no longer
exists is an intolerable thought."
End Parts 4 & 5.
© 1991 Barry Krusch
For further information write Americans for a Constitutional
Convention, 127 E. 59th St., NY, NY, 10022, call 1-212-408-3150, or
send E-mail to 72030,2635. WHY WE NEED A NEW CONSTITUTION
PART 6
THE OBSOLESCENCE OF THE 1787 CONSTITUTION
To have anticipated the country's condition in the 1880's from the
situation in the 1780's would have required something more than
foresight. The Framers would have to be seers.
Rexford Tugwell, THE COMPROMISING OF THE CONSTITUTION
The existence of the Empirical Constitution is irrefutable evidence
that the Constitution as framed in 1787 is no longer relevant for
modern times. As Rexford Tugwell wrote:
"The Constitution... has, to put it plainly, become in many respects
obsolete. The succeeding generations still living within its directives
are confronted with conditions radically different from those known to
the original framers. The arguments it emerged from are no longer
relevant and its governance of the nation has become more mystical than
real.... Does anyone believe that if the Constitution in its entirety
should be submitted to referendum now, and relieved somehow of its
traditional san ctity, it would be ratified? If it would not, and if
constitutional government is desirable, then it follows that an
acceptable one ought to be devised. This simple logic seems
irrefutable; actually it is universally evaded. It is even widely
regarded as reprehensible to make such a suggestion."
But reason must prevail. Dean Brennan, quoting Chief Justice Warren
Burger, noted that
"'[W]e should examine the changes which have occurred over two
centuries and ask ourselves whether they are faithful to the spirit and
the letter of the Constitution, or whether with some, we have gone off
on the wrong tracks.' Justice Burger points out that... [c]ongressional
staffs have expanded to the size of George Washington's army....
Constituent services, committee work, and management of administrative
staff have all grown in importance, dwarfing the parliamentary function
of congressmen and senators. At the same time, because of the growth of
our population from three million to nearly a quarter billion, each
congressman and senator must represent vastly more citizens than
originally intended. The corollary of t hat proposition, of course, is
that each citizen is vastly more remote from the national legislature
than Madison and Hamilton assumed would be the case. The volume of
congressional business is so great that members are physically unable
to read all the bills they are expected to vote upon."
Brennan pointed out further inadequacies, such as the obsolescence of
the $20 guidepost in the civil jury trial provision:
"Jury trials are assured in suits at common law, but there are no suits
at common law within the Federal Judicial System anymore. Jury trials
are assured where the value in controversy exceeds $20.00. The
jurisdictional minimum in diversity cases in Fed eral courts is now
$10,000. Modern state constitutions have substantially altered the
common law concept of civil jury trials. In England, jury trial in
civil cases has all but disappeared. With civil litigation mounting,
dockets burgeoning, delay pili ng upon exasperating delay, modern court
systems seek new methods of dispute resolution which can more
adequately serve the needs of 20th and 21st century society...."
One of the more dangerous obsolescences is the inability of the
Constitution to prevent the existence of the military-industrial
complex Eisenhower warned against in his Farewell Address. The Framers
feared standing armies, and for good reason:
"Whatever the two year limit on army appropriations may be understood
to mean in Washington, D.C. in 1982, it does not seem to have any
restraining force with respect either to appropriations or the raising
and supporting of armies. Certainly the Pentago n would be stunned to
hear that congressional expenditures for land forces were circumscribed
by a term limitation which did not apply to naval forces. With the
technological advancements which have changed the entire concept of
national defense, the necessity of long range planning, and the
commitment of resources over substantial periods of time are commonly
accepted. But the argument from modern nece ssity does not change the
plain language of the Constitution. The most ingenious semantic
machinations cannot change the meaning of that restrictive phrase... .
What a far cry from the focus and concern of the framers are the words
of 10 U.S.C.A 2301 e t seq. describing the process of military
procurement. 'The head of an agency may enter into contracts for
periods of not more than five years....' Detailed citation should not
be necessary to support the proposition that American military
expenditur es are substantial; that vast standing armies are
maintained; that appropriations are made for the purpose of raising and
supporting armies for longer periods than two years....The point need
not be belabored further. The founders had a real distrust of standing
armies. As Madison said: 'as armies in time of peace are allowed on all
hands to be an evil, it is well to discountenance by the Constitution.'
Since the second world war, the United States has continuously
maintained a military establishme nt consisting of more than three
million persons, of which, in 1978, 757,000 were members of the United
States army on active duty. The air force accounted for an additional
567,000. It is clear that forces of this magnitude cannot be
maintained, equipp ed, and supplied with short term appropriations.
Obviously, the language which Madison and his colleagues inserted in
the Constitution is no longer operating. It is simply being ignored by
the government in Washington. Doubtless, no one now would argue with
much enthusiasm for the enforcement of the two year limitation. But a
limitation ignored is no limitation at all. We permit our only
constitutional protection against standing armies to be ignored. At the
same time, we fret about an international arms race that imposes
enormous economic burdens on the American people. The founding fathers
thought the matter a proper subject for constitutional legislation. If
we do not think ourselves competent to such a task at this time in
history, we ought to say so in clear terms. If we think the two year
appropriation limit too stringent, we ought to remove it, before some
elected officials come along and endanger our security by the innocent
act of obeying the Constitution."
Brennan then cited some of the many areas requiring revision, and
called for action.
"Jury trials; standing armies; disqualifications for office; these are
but a few areas sorely in need of constitutional attention. Much of our
basic charter has grown pathetically out of date because we have
focused upon a few popular phrases which have been seen as flexible..
.. The Constitution contains many narrow, rigid, outdated terms. It
omits many things which could easily be included, if the document is to
serve our generation and those to come as aptly as it was conceived to
serve those who w ent before us. There is no call to be shy or timid.
Surely after 200 years, we are not premature to consider amendments. If
anything, we may be too late."
Brennan's final question is a very important one -- are we too late?
PART 7
THE END OF THE LINE
The most visible example of our constitutional inadequacy is our
burgeoning National Debt, which threatens to obliterate our economy
either by "bang" (crash) or "whimper" (foreign ownership). As The Wall
Street Journal reported, since 1980
"[A]ll debt outstanding -- governmental, business, and individual --
has swelled to nearly $11 trillion from less than $4 trillion. Today's
total -- close to $43,000 for each man, woman, and child in the U.S. --
exceeds 1.9 times the gross national produ ct, up from 1.7 in the mid
1980s. In the 1950s, 1960s and 1970s, debt ranged only from 1.2 to 1.4
times GNP. Just since 1989, the debt load has mounted nearly $2
trillion.... The federal budget 'is out of control' says Charles B.
Reeder, an economic consultant in Wilmington, Del., who isn't given to
hyperbole. The deficits 'will be a drag on the economy,' he predicts,
since 'they preclude the possibility of either tax cuts to stimulate
demand or new spending programs to deal with serious social and
economic programs.H. Erich Henemann, economist of Ladenburg, Thalmann &
Co., worries especially about the deficit's impact on saving and
investment. 'The more Washington borrows, the lower national saving
will be, ' he warns. 'Low saving equals low inve stment. In turn, low
investment will lead to slow growth and a decline in the U.S. standard
of living relative to other nations, particularly Japan and Germany..
.. As recently as 1984, state and local governments, taken as a whole,
sported an operatin g-budget surplus of about $20 billion. Last year,
in sorry contrast, they sustained a record operating deficit of $34
billion, and many forecasters anticipate still deeper state and local
deficits in the year ahead. To help make up the shortfall, 20 to 30
states plan 'major' tax increases in the year ahead, according to the
National Center for Policy Analysis. This would tend to worsen the
federal deficit, since state and local taxes are largely deductible
from federal taxes. The upshot will be 'leaner and meaner -- not
gentler and kinder -- times,' forecasts Laurence B. Rossbach Jr., and
analyst at Smith Barney, Harris Upham & Co."
This crisis has been brewing for three decades. In fact, over 32 states
had petitioned Congress for a Constitutional Convention for a balanced
budget amendment by 1987. As the Grace Commission reported eight years
ago, the problems of waste in governmen t required "immediate
attention. Many are dependent on institutional changes to bring about
long-term improvement. If the problems identified are left uncorrected,
they can only deteriorate and result in 'opportunities lost,' leading
to the loss of nati onal vitality and the erosion of freedoms."
But in the face of this pressing concern, all Congress could manage to
do was pass the ineffectual Gramm-Rudman bill, the most significant
portion of which was found unconstitutional by the Supreme Court, and
thus eviscerated (the separation-of-powers pri nciple in action).
Deprived of even this abortive band-aid remedy, deficits swelled to new
heights: a record $360 billion in 1992 alone. Freed of any form of
structural restraint, Congress was free to be collectively
irresponsible, an irresponsibility w hich "is most evident when members
express concern over mounting deficits and growth of government but
insist on funding programs that benefit their individual constituencies
..." Vivid evidence of this irresponsibility was displayed on the floor
of th e House of Representatives on October 3, 1991, as Representative
Dan Burton (R-IN) argued vainly for fiscal restraint:
"In this bill we have a ton of pork barrel projects, and I am going to
have other amendments to cut them out. The fact of the matter is that I
know as I stand here, I say to my colleagues, that I do not have a
chance of a snowball in Hades of getting any of these amendments
passed, and that is why I get so frustrated. Members know it is pork,
and I know it is pork, but nobody is doing anything about it. The
reason that happens is that so many of us in this body, and in the
other body, continue to ask f or special pork barrel projects. One
subcommittee of the Appropriations Committee in this body had 385
Members ask for over 3,000 special projects. Where is it going to end?
As I said before, I know that I am now jousting with windmills, and I
know I a m just a voice in the wilderness here, but I am telling the
Members that we had better do something about it. We are mortgaging the
future of our kinds, and we are headed for financial disaster at some
point in the future. I do not know where that is, b ut it is going to
happen. We cannot continue to spend $300 billion, $400 billion, or $500
billion more per year than we take in and incur the kind of debt we
have, a $4 trillion national debt, without some kind of disaster
occurring in the future. And w e are all going to be responsible."
Individually responsible, perhaps, but collectively irresponsible. The
vote was 252 to 162 in favor of the appropriations -- once again, a
failure to act in the face of a necessity for action, but a mere detail
in the working-out of this self-defeating Clockwork Orange known as the
United States Government -- a tragic Shakespearian determinism parading
before our eyes.
This failure of our government to act creates a feeling of helplessness
-- and, even more incredibly, some people simply become bored with
these important issues. How many times can a person request action on
an issue and get no result without either giv ing up or losing
interest? As The New York Times reported,
"This time last year the budget was front page news.... On Monday, Mr.
Darman is to release this year's mid-year review. It will show a
deficit of perhaps $315 billion or $320 billion for the next fiscal
year, nearly $100 billion above the figure las t July, $35 billion or
$40 billion above what was forecast as recently as February and far and
way the biggest deficit ever. But nobody seems to care.... The
economists and political scientists who filled the nation's Op-Ed pages
last year with doomsday columns about dangers of the deficit have
turned their attention elsewhere...."
"Turned their attention elsewhere." Not surprising. This effect was
known to De Tocqueville over a century ago, as this excerpt from
DEMOCRACY IN AMERICA shows:
"Subjection in minor affairs breaks out every day, and is felt by the
whole community indiscriminately. It does not drive men to resistance,
but it crosses them at every turn, till they are led to surrender the
exercise of their own will.... The will of man is not shattered, but
softened, bent, and guided; men are seldom forced by it to act, but
they are constantly restrained from acting: such a power does not
destroy, but it prevents existence; it does not tyrannize, but it
compresses, enervates, ext inguishes, and stupefies a people, till each
nation is reduced to be nothing better than a flock of timid and
industrious animals, of which government is the shepherd."
Even Harvard professors are reduced by this phenomenon to the role of
"timid" animals. The Times article continued:
"Benjamin M. Friedman, a professor of political economy at Harvard,
said he believed just as strongly as he did last year, when he was
writing regularly about the subject, that the deficit was 'ruining the
country.' But he said he felt like someone who had tried unsuccessfully
to persuade an alcoholic friend to stop drinking. 'You've done
absolutely everything you can do, and now it's not at all clear it will
do any good to continue harping.'... Now, the President's budget
director puts forth the bi ggest deficit in history. How can the
Democrats be silent?... They signed the deal that put off further
debate on the budget until after the 1992 election.... They forfeited
their right to criticize President with a stratospheric popularity
rating o n the one issue on which he seems vulnerable."
Indeed, the political parties, accomplices in the budgetary fiasco,
colluded on a deal to prevent discussion of the critical issue before
elections. According to Virginia governor L. Douglas Wilder,
"Washington has so mismanaged the nation's finances that in order to
save their own skins, the elders of both parties met behind closed
doors for weeks and then emerged to join hands in the Rose Garden to
support the most regressive tax package in history , and a set of
budget priorities that lock us into the status quo for several years --
all so everyone can get re-elected."
It is, or ought to be, apparent that the National Debt problem will
not, and cannot, be solved under the present Constitutional structure,
a structure run by incumbents and their special-interest clientele:
"the deficit, properly understood, is a surface symptom of more
fundamental problems in our political institutions.... we cannot expect
incumbents in Congress to change the present system." Richard Snelling,
the former governor of Vermont, summarized:
"Four years ago, as chairmen of the National Governors Association, I
met with Congressional leaders to discuss the nation's economic
problems. At one session, within a few minutes' time, I heard both Pete
V. Domenici, Republican of New Mexico, the chair man of the Senate
Budget Committee, and James R. Jones, Democrat of Oklahoma, then
chairman of the House Budget Committee, declare that the budget and the
debt were wheeling out of control. But they said Congress could not act
in the face of the combined onslaught of the hundreds of big, powerful
special-interest groups based in Washington. What was true four years
ago remains true today. Each of these special-interest groups endorses
the notion that the deficit must be shrunk. Some are willing to agr ee
that spending must be cut, others that revenue must be increased. But
each group expects the cuts to be ways that do not affect its own tax
obligations. Mayors, for example, oppose cuts in urban programs, and
the Chamber of Commerce is opposed to any tax increases its members
would have to pay. In 1981, Jones summed up the situation: 'There is a
constituency for national defense. There is a constituency for every
item of the domestic budget. There is a loud constituency for tax cuts.
But there r eally is no constituency for a balanced budget.'"
For structural reasons, the predicament our officials have placed us
into will not be defused by them. Deficits are created by the
inordinate influence of special interests on incumbents, and attempts
to cure the defect are fought off by those same speci al interests.
According to Yale Law School professor Elliot,
"[M]embers of Congress are rational actors who pursue the
self-interested goal of re-election.... a rational politician
interested in maximizing the chances of re-election will not pay equal
attention to the preferences of all the district's voters.... a
rational, self-interested politician will pay particular attention to
the desires of those citizens who have managed to form themselves into
coherent group organized around particular issues.... organized
citizens have a greater influence on the behavior of politicians, who
must continually seek re-election, than citizens who are not organized.
... [C]itizens are rational and self-seeking.... if a large group of
citizens all share a common interest that can be promoted by forming an
organiza tion will be small, but the additional benefits to each member
of the group from joining the organization will be small, it will be
virtually impossible to form such an organization. This is because it
will be rational for each member of the group to "le t George do it."
But if everyone depends on someone else to do the dirty work, it never
gets done. Through a series of decisions that are individually
rational, a result is reached that is collectively irrational: the
group will not be formed, even tho ugh all of its potential members
would be better off if it were formed than if it were not....[A] small
group of firms, each one of which is affected in a relatively
significant way by what the government does, is more likely to organize
and expend tim e, effort, and money to procure and influence government
policy than is a diffuse and disorganized public. ... Most government
spending programs provide significant benefits to relatively
concentrated, and, therefore, relatively well-organized and polit
ically effective constituencies. On the other hand, the costs of
government spending are spread over a large and diffuse group --
taxpayers. Because the incremental cost of each government spending are
speculative and difficult to appropriate, public ch oice theory
predicts that it will be difficult, if not impossible, to organize the
broad mass of taxpayers, as such, into an effective counterweight to
spending that benefits 'special interest groups' with more narrowly
focused interests. Thus, public ch oice theory implies that there is an
inherent bias built into the political system in favor of spending to
benefit organized constituencies, even when the total costs of a
program exceed its benefits.... [G]roups of taxpayers frequently do
lobby and en gage in political activities to obtain changes in the tax
code that will benefit them. It is worth noting, however, that most of
the tax code issues that generate robust political activity tend to
benefit relatively narrow groups, such as the oil industr y or real
estate investors. It is much rarer that groups are organized
successfully to lobby to reduce general tax rates, as opposed to
supporting particular deductions."
A second central problem is that those who are really opposed to the
deficits we are running haven't been born yet! Elliot continued:
"But that alone, if true, would not explain the deficit, which is the
joint product of government decisions as to revenue as well as
spending.... politicians 'enjoy' appropriating money to benefit their
constituents, but they do not 'enjoy' taxing the m.... the causes are
structural -- that is, they inhere in the system of incentives facing
politicians, regardless of personal preferences... . [B]y creating a
deficit and borrowing to finance it, politicians are able to confer
benefits on current vo ters while imposing a portion of the costs on
future generations who will have to pay the bill.... the interest group
that is the weakest politically is one that is even more difficult to
organize than taxpayers -- the unborn. Future generations are tr uly
subject to 'taxation without representation,' because today's
politicians can vote to implement programs to benefit today's voters
but to be paid for in part by tomorrow's taxpayers. When someone who
cannot vote can nonetheless be made to pay the cos ts for something
benefits someone who can vote, a powerful incentive is created for
politicians to follow what Bruce Ackerman, John Millian, and I have
called the 'cost-externalization' strategy, the politician's
'equivalent of a free lunch.' Cost-extern alization arises most
frequently in a geographic context, when politicians in one state seek
to obtain benefits for the voters in their state while imposing
disproportionate costs on the citizens of another state. One of the
functions of the commerce cla use of the Constitution is to restrain
politicians from pursuing this tempting type of cost-externalization
strategy. Deficit spending provides functionally similar opportunities
for politicians to engage in cost-externalization, but across temporal,
rat her than geographic, boundaries.... [P]owerful incentives are
inherent in the existing political structure for politicians to engage
in inter-temporal cost-externalization. Unlike the commerce clause,
which protects (albeit imperfectly) citizens in other states from
geographic cost-externa lization, our Constitution provides no
restraints or defenses against inter-temporal cost-externalization."
The final nail in the coffin is the desire of these incumbents to stay
in office:
"The essential reason why we cannot expect Congress to initiate the
kinds of changes that will be necessary to deal with the deficit is
that incumbents are among the prime beneficiaries of the present
system. The present system allows incumbents to enhan ce their
prospects for reelection by catering to well-organized interest groups
and imposing costs on future generations. There is no reason to assume
that Congress will volunteer to be part of the solution, because
Congress is part of the problem."
After the meticulous cataloging of these insights, it is not surprising
that political scientist Laurence Dodd would observe that "the
Madisonian system is self-destructing." Even if an individual member of
Congress did want to solve the problem, s/he wo uld have to bypass the
impassable Constitutional hurdles:
"As a Congress composed of members who are concerned about public
policy becomes increasingly and necessarily enmeshed in institutional
immobilism -- an immobilism that may result from the very genuineness
of members' policy concerns -- Congress faces the external checks and
balances built in the Constitution. Ironically, since the Founding
Fathers thought that Congress was the most dangerous branch, the really
powerful checks, such as veto and judicial review, were given to the
president and the Court to use against Congress. The inability of the
legislature to know its will thus is exacerbated by the ability of the
president and the Court, separately or in alliance, to debilitate any
congressional will that may exist by throwing in front of Congress t he
requirement that it make legislative policy not by majority vote but by
two-thirds vote."
In light of all the foregoing, there must be one final question --
whether or not people can or will be able to organize quickly enough to
head off financial disaster.
THE NEED FOR A NEW CONSTITUTION
[L]aws and institutions must go hand in hand with the progress of the
human mind. As that becomes more developed, more enlightened, as new
discoveries are made, new truths disclosed, and manners and opinions
change with the change of circumstances, insti tutions must advance
also, and keep pace with the times. We might as well require a man to
wear still the coat which fitted him when a boy, as civilized society
to remain ever under the regimen of their barbarous ancestors.
Thomas Jefferson, 1816
The words of the Constitution as it stands at any given moment of time,
may not... suffice to solve the problems of the day. But to whatever
extent our people are competent to solve their problems, faithfulness
to a scheme of government founded upon a written constitution, and
changeable only by deliberate amendment offers the surest hope for
solving them. The growth of our population; advances in high
technology; poverty in the cities; racism; pollution; the threat of
nuclear annihilation; these and all the other urgent concerns of today
and tomorrow can only be addressed by a government which functions
consistently, efficiently, and legitimately.
Dean Thomas Brennan, 1982
Due to the deficit fiasco, as previously noted, by 1987 32 states had
requested a Constitutional Convention to consider a balanced budget
amendment. But, as economist Glenn Pascall wrote, a balanced budget
amendment would merely be "an admission in the C onstitution that the
form of government designed by the Constitution no longer worked on
budgetary matters." As we have seen, the source of our infirmities is
deep -- very deep: "the causes of the deficit lie in the structure of
our modern political ins titutions. Until we resolve the underlying
institutional issues, no stop-gap measure can truly resolve the problem
of the deficit." Band-aid fixes like balanced budget amendments and
line-item vetos for the President are "solutions" to fundamental stru
ctural inadequacies that are too little, too late. Our maladies can
only be cured by creating a constitution appropriate for our time, and
appropriate for the 21st Century, in line with the dictum in the
Preamble that we should "secure the blessings of l iberty to ourselves
and our posterity...". Dodd stated the obvious:
"In light of these considerations, a successful end to the debilitating
cycles of the twentieth century requires that we direct attention not
to internal congressional reform but to fundamental alterations of the
constitutional system itself. We must cre ate an incentive system
within the Constitution that, while sustaining a degree of
congressional decentralization that will allow for innovation and
expertise, will lead members of Congress naturally to support
centralizing mechanisms that can sustain ins titutional integrity. We
also must reconsider the nature of the checks-and-balances system with
the intent of strengthening the position of Congress. Simultaneously,
we can redirect the values by which we wish institutional politics to
be conducted, shi fting from a politics of minority veto and policy
inaction toward majority government and social justice."
Needless to say, devising a proper constitutional form involves much
careful thinking -- it is important, however, to design a Constitution
in line with 21st Century ideals, ideals which are more progressive
than those used by the Framers at a time when a n African-American
slave was considered 3/5 of a person:
"As we consider movement toward alternative constitutions we must
realize that constitution making is serious and difficult business. It
requires realistic and hard-headed assessment of human nature, of the
implications of different institutional arrange ments, of the social
conditions within which politics is to be conducted, and of the
consequences that will derive from the interaction of these three
elements of political life. In many ways Madison's performance in the
Federalist Papers is still the be st guide to this type of undertaking.
A proper respect for his intellect is always advisable. Yet we also
must unlock ourselves from the infatuating clarity and logic of
Madisons' arguments that continue to exert a seductive hold on our
imaginations lon g after the supporting conditions assumed by them have
passed. The transformations of our society in the last century undercut
the accuracy of his forecasts. The changes in our values, and hopefully
the growth of a greater commitment to majoritarian gov ernment and
popular justice, alter the goals to which anew or modified
constitutional arrangement should be committed."
At a time when we are moving towards crisis scenarios in many segments
of our society, it is imperative that we take this necessary first
step. As Hazlitt stated,
"Our Constitution, at the time it was adopted, was a document far in
advance of its age. Even today there could be no nobler statement.. .
than one particular part of that Constitution, the Bill of Rights. But
that part of our Constitution which deals with the mere machinery of
government must now be candidly reexamined... The Constitution exists
for the country, not the country for the Constitution. We must not make
a fetish of a rigid legal document.... We must be at least as ready to
make progressive changes in government as our forefathers were when
they framed our basic law. No one today thinks that the proper way to
show our admiration for the Wright brothers' original biplane would
have been never to design anything better. Nor is this the way to show
our admiration for the enterprise of the men who framed the
Constitution."
The obvious answer to our problems is to do what the Framers did when
they were confronted with structural problems -- to hold a
Constitutional Convention, where the flaws in the Constitution will be
analyzed, and the defects remedied. With one or more a lternative
Constitutions before us, we will be better able to make the
determination as to which form of government will be most suitable for
the United States in the 21st Century.
© 1991 Barry Krusch
WHAT YOU CAN DO TO HELP
AMERICANS FOR A CONSTITUTIONAL CONVENTION ("ACC") is an organization
whose charter recognizes five main objectives:
(1) to analyze the defects in the current Constitution;
(2) to propose whatever changes to the Constitution are necessary to
cure the defects;
(3) to create a set of rules for a future Constitutional Convention;
(4) to publicize the need for a Constitutional Convention;
(5) to educate the People of the United States as to the viability of a
Convention by holding an actual convention.
The first 1200 Sustaining members of ACC will be guaranteed a seat at
the Constitutional Convention, which will be held in either
Philadelphia, New York, or Washington, D.C. in 1993 (the members to
decide). This Convention will supported entirely by the members of the
ACC, and while the Constitution or Constitutions it issues will not be
ratifiable by the states, they can and will be submitted to the people
via some form of teledemocracy such as 900 numbers. We will finally
discover the extent to which the structure of our government is
approved by the majority of the people, if at all.
ACC needs your support. If you are interested in joining one of the
following committees --
Public Relations Rules The Second Federal Convention Act Federalism The
Necessary and Proper Clause The Guarantee Clause The Presidential Veto
The First Amendment The Second Amendment The Fifth Amendment The Ninth
Amendment Judicial Review Bicameralism Tax
or any other relevant committee, please send E-Mail to 72030,2635. You
may also call 1-212-408-3150, or write 127 E. 59th Street, NY, NY
10022. There is no charge to be a member of ACC, or to serve on a
committee -- indeed, your participation is most w elcome.
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