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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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