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Common Ground | 1994-10-15 | 433KB | 4,660 lines

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Barry Krusch
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Z,Electronic Copyright
 1994 by Barry Krusch
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About this Document
-The following document is taken from the book
The 21st Century Constitution.
ZNThis document is a digital facsimile of the pages of the book, and consists of
>the table of contents, the introduction, and the first chapter
, entitled
Why We Need a New Constitution.
:For best reading, print out this document on a laserwriter
=The complete text of the book is available in ASCII format at
ftp.netcom.com, /pub/krusch
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+U82THE 21ST CENTURY CONSTITUTION
Contents
zIntroduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Chapter 1:
)GAWHY WE NEED A NEW CONSTITUTION . . . . . . . . . . . . . . . . .
Chapter 2:
)GDTHE 21ST CENTURY CONSTITUTION  . . . . . . . . . . . . . . . . . . .
Times
Article 1:
The Legislative Power
)sC. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section  1:
)8 Allocation of Legislative Power
>. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section  2:
The House of Representatives
)wC. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section  3:
The Senate
)/Y. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section  4:
)83Regulation of Elections and the Legislative Session
#. . . . . . . . . . . . . . . . . .
Section  5:
)8 Rules of Congressional Procedure
9. . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section  6:
)8<Compensation, Privileges, Restrictions, and Responsibilities
. . . . . . . . . . .
Section  7:
The Legislative Review Board
){?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section  8:
Legislative Procedure
)UK. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section  9:
Powers of Congress
)SM. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 10:
Obligations of Congress
)eH. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 11:
The Right to an Education
)jF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 12:
Other Rights of the People
)oC. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 13:
)8"Other Limitations on Federal Power
7. . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 14:
)8 Other Limitations on State Power
;. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 15:
)8!Legislative Powers of the People
;. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Article 2:
The Executive Power
)kC. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Article 3:
The Judicial Power
)^I. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Article 4:
The Federal Article
G. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Article 5:
The Amending Power
)iE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Article 6:
)?(The Supremacy of the National Government
. . . . . . . . . . . . . . . .
Article 7:
The Constitutional Supplement
3. . . . . . . . . . . . . . . . . . . . . . . . . .
Article 8:
Rules of Construction
)nD. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Article 9:
The Ratification Article
)wA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Chapter 3.
)G\EPILOGUE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Further Reading
)Wb. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
UnSelected Bibliography. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
UwFootnotes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
UuTopical Index. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Times
+g99Introduction
@People are not so easily got out of their old Forms, as some are
Bapt to suggest.  They are hardly to be prevailed with to amend the
?acknowledg
d Faults, in the Frame they have been accustom
d to.
:And if there be any Original defects, or adventitious ones
Aintroduced by time, or corruption;
tis not an easie thing to get
!them changed, even when all the W
orld sees there is an
opportunity for it.
John Locke,
Second T
reatise
, 1689
g>[A]ll experience hath shown, that mankind are more disposed to
suffer
9, while evils are sufferable, than to right themselves by
g3abolishing the forms to which they are accustomed.
The Declaration of Independence
, 1776
g'A Nation $4,000,000,000,000 in Debt.  T
oxic W
aste Dumps. The Rise of a
U2Monolithic and Unresponsive Government Bureaucracy
.  34 Million People
6ithout Medical Insurance. The Growing Necessity of a T
    wo-Income
Family
)"<.  Crack Babies.  Spare Parts 1000% Over Cost.  Dominance of
UHGovernment by the Special Interest Groups.  Unnecessary and Cruel Animal
HResearch.  A 30 Percent Functional Illiteracy Rate.  An Alarming Rise in
Eiolence and Drug Abuse.  Schoolchildren Scanned by Metal Detectors.
e have many problems in society
$, but our worst problem is a seeming
U+inability on the part of our Government to
    deal with
our problems.  And yet,
our form of government was
supposed to
)J    remediate
problems.  The
ULPreamble to our Constitution states that the Constitution was established in
4order to, among other things,
promote the general W
elfare.
et a cursory
UManalysis reveals that our Government is falling far short of the mark.   Does
Jthe existence of a $4,000,000,000,000 National Debt that necessitates $300
?billion in annual interest payments help
promote the general W
elfare
ULNo.  Does the inability of government to come up with a health-care solution
help
promote the general W
-elfare
?  No. Does the domination of Congress
U0by special interests help
promote the general W
elfare
?  No.
Unfortunately
, these problems (and many
, many others) have not only
U%persisted over time, but are getting
worse
)  ; to the extent that many people
feel that they will
never
be solved
 that
there
s nothing you can do
about it.
5The Framers of our Constitution did not feel this way
.  They felt that not
only
could
)#<Government solve these and other problems
 it was its chief
reason for
being
6!  In fact, the mark of the success of Government was
U(extent to which it solved those problems
.  Interestingly enough, the
    Helvetica
Second Treatise,
 John Locke,
223, 1
Founders
 Constitution
84-5  (All quotes indicated
Founders' Constitution
are taken from
The Founders
 Constitution
, ed. by Philip Kurland and
U\Ralph Lerner (University of Chicago: 1987)).  All bold emphasis in the text is by the author
Times
+U1Jsituation confronting the Framers was parallel to our own.  They were also
Dfaced with an inept Government (which, among other things, created a
JNational Debt that could not be paid under the existing Constitution), but
Ltheir response was different from ours, and definitive; they lost no time in
Ggoing to the root of their problem, by completely revising the existing
9constitution (known as the
Articles of Confederation
Needless to say
)T7, this was a controversial approach.  In 1787, many had
ULargued that the United States was better off remaining a loose confederation
Fof States, and that a strong National Government was not desirable.  T
UGcounter this assertion, James Madison, Alexander Hamilton, and John Jay
had to devote 36 essays in
The Federalist
)Q", the political classic written in
UGdefense of the 1787 Constitution, to the topic of the inadequacy of the
LArticles for the Union, and the erroneous nature of the major premise of the
Lsupporters of the Articles: that
united we fall, divided we stand.
  As the
authors of
Federalist
)?*conclusively demonstrated, the more proper
formulation was
)m united we stand, divided we fall
 A group of
UJconfederated States was doomed to inefficient duplication of resources, an
Dinability to pass legislation for the common good, and a tendency to
6interstate conflict that could be resolved only by war
The Constitution
UIdrafted in the Philadelphia of 1787 was designed to solve the problems of
1787, and did so
 dramatically
!But the 1787 Constitution was not
UEdesigned to solve the problems of 1987, and therefore it should be no
Isurprise that many clauses in the Constitution are no longer relevant for
Kmodern times.  Nor should it be surprising that the Constitution omits many
Iclauses that are necessary for an Information Age.  Designing a political
Lsystem appropriate for the times is one of the most important tasks a people
Jcan undertake.   Our Framers did so, and we ought to follow their example.
(The issues in this book, needless to say
#, are serious, and deserve serious,
UHcareful thought.  The Framers of our Constitution were well aware of the
Jenormity of the task they undertook, and fully expected future generations
Jto evaluate their handiwork in the light of subsequent experience
 a task
)we will undertake here.  In Chapter One,
Why W
e Need A New
Constitution
)E9, we will see why the Constitution drafted in 1787, while
UGadequate in many respects, has ultimately led to the violation of seven
Ocritical criteria for a just, efficient, and workable Government
 criteria the
3Framers themselves saw as legitimate.  In Chapter T
The 21st Century
Constitution
)E:, the only democratic alternative to the 1787 Constitution
ULauthored since 1787 is presented
 a constitution far more likely to satisfy
Kthe seven critical criteria enumerated by the Framers than the Constitution
they drafted.  And finally
, in Chapter Three, the
Epilogue
, we will see how
UKthe New Constitution will change life in America, and explore strategies to
secure its enactment.
Es begin with an analysis of the adequacy of the Constitution in light
of contemporary reality
Times
+g97Chapter One
Why W
e Need A New Constitution
g8AFTER 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
7subject speaks its own importance; comprehending in its
>consequences nothing less than the existence of the UNION, the
Dsafety 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
LThe Constitution of the United States, currently residing in a helium-filled
glass case in W
)P=ashington, D.C., was drafted in 1787.  The America of 1787, a
U7country with a population nearly half that of the New Y
ork City of 1987,
ULwas a country predominantly comprised of farmers.  For that pastoral time (a
Btime which saw the creation of idyllic works of music like Mozart
Kleine Nachtmusik
2the form of Government designed by the Framers was
U%perfectly adequate, allowing America
"s natural magnificence to blossom.
However
)0A, as the Third Millennium approaches, more and more Americans are
UKbeginning to feel that in many critical respects, our form of Government is
%now
out of joint
 with the times.  W
e have had, in Hamilton
s words,
UBunequivocal experience of the inefficacy of the subsisting federal
Dgovernment.
  Our problems have steadily mounted, and it is becoming
Kincreasingly clear that our Government will not, or cannot, deal with these
problems.  Consequently
5, there has been a noticeable increase in frustration
with our political system, as
    The New Y
ork T
imes
reported in 1991:
@o many Americans, politics has become remote and sterile, posing
gFfalse choices.  For all the angry abortion debate, as an example, most
CAmericans could probably agree in two minutes on a six-word policy:
+Discourage abortions but don
t ban them.  Y
et in the political arena,
gEthe extremist fury drags on for still more years, oblivious to urgent
,concerns like the blazing spread of measles.
3In a sobering new report, the Kettering Foundation
s David
gGMathews cites reaction
against a political system that is perceived as
Eso autonomous that the public is no longer able to control and direct
Fit.  People talk as though our political system had been taken over by
    Helvetica
Federalist 1
).E, p. 2 (Hamilton).  Punctuation and spelling modified for readability
Times
alien beings.
However
)0<, dissatisfaction with Government is nothing new in America,
UFsince our complaints with Government are structurally based
 that is,
)societal maladies and unrest have arisen
directly
from the structure of
UMGovernment instituted by the Framers.  For this reason, historical criticisms
appear contemporary
)t1.  Consider this paragraph, written by Frank Cook
(editor of the
New Y
ork W
in 1923:
g:The American people were never before so critical of their
government as they are now
$.  They were never before so cynical
gCabout their government.  They rail at the politicians, they jeer at
BCongress, they blackguard the President, whoever he happens to be,
;but they never stop to inquire whether their government was
Destablished to meet the demands they are making on it.  If they did,
Bthey would be obliged to admit that it was not.  They ask a rigid,
?inflexible government to function as a responsible and flexible
<government.  They ask a government of checks and balances to
2function as a political manifestation of democracy
.  They ask a
gAgovernment of co-ordinate and independent branches to function as
Ia unit.  It cannot be done.  In spite of all their ardent devotion to the
<Constitution, it is apparent that they know little about the
EConstitution.  They have turned it into a fetish and they burn a vast
Fquantity of incense before it, but they have forgotten its origins and
Dhave lost contact with its purposes.  What they think it is, or what
Ethey think it must be, is something that it was never intended to be,
:and can never be made to be, except by a process of almost
revolutionary revision.
gAThe more things change, the more they stay the same.  Complaining
UHabout Government has become one of the less enjoyable American pastimes.
KBut as Cook perceptively noted, people have consistently failed to discover
*the fountainhead of the American pathology
 .  It has been said that the one
ULthing people can learn from history is that people have learned nothing from
history
)$C, and contemporary experience is providing a ringing endorsement of
U$that dictum.  But somewhere, somehow
!, the cycle must stop, and people
must heed Cook
)^:s advice, and begin the process of constitutional analysis
 an analysis that of necessity begins with an examination of the
    symptoms
)7Bof deep-rooted troubles: our seemingly intransigent societal ills.
    Helvetica
    The New Y
ork T
imes,
July 21, 1991, p. E-16.
Is our Democracy Stagnant?
, June 1923, Harper
s Magazine, quoted in
A New Constitution
pp. 42-43.
Times
THE PREAMBLE AND OUR PROBLEMS
6Government deficits, the spiraling imbalance of trade,
!inconsistencies in foreign policy
, illegal immigration,
g7unemployment, 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
4system is capable of meeting the challenge of modern
government.
&Committee on the Constitutional System
De know what the outcomes of a successful Constitution are, since the
ULPreamble to our Constitution states that it was ordained and established
Horder to
 effect six main goals:
form a more perfect Union,
establish
&Justice,
insure domestic Tranquility
provide for the common Defence,
promote the general W
0elfare,
 and
secure the Blessings of Liberty to
ourselves and our Posterity
  Therefore, at least some of the indicators of
UFGovernmental success or failure are the extent to which the Objectives
.outlined in the Preamble have been achieved.
GThis measuring rod established in the Preamble is not flattering to our
UHConstitution: even a cursory analysis of whether or not these goals have
Gbeen met reveals serious inadequacies.  For example, one of the primary
Ogoals of the Constitution is to
establish Justice.
   Justice, of course, must
by definition mean justice for
%.  But as the Brookings Institution T
UEForce found in their evaluation of the justice system in the area of
civil
ULlitigation, this goal has not been achieved.  In America,
justice
 is meted
Dout to those with the most spare time on their hands and the deepest
pockets:
HIn many courts, litigants must wait for years to resolve their disputes.
DIn the meantime, their attorneys pursue ever more expensive means of
?discovery to prepare for trial, often having to duplicate their
Dpreparation when trial dates are postponed.  Among the bulk of cases
;that are never tried but settled, many are overprepared and
Hoverdiscovered.  In short, civil litigation costs too much and takes too
long.
=The high costs of litigation burden everyone.  Our businesses
g8spend too much on legal expenses at a time when they are
Econfronted with increasingly intense international competition.  They
Apass those costs on to consumers, who then pay unnecessarily high
-prices for the products and services they buy
.  People who take their
gBcases to court or who must defend themselves against legal actions
    Helvetica
.Constitutional Reform and Effective Government
+, James Sundquist (Brookings: 1986), p. ix.
Times
+g2.often face staggering bills and years of delay
Prophetically
)E8, Luther Martin, one of the Framers of our Constitution,
ULindicated that this would be a future concern in an address delivered to the
CMaryland Legislature on November 29, 1787.  In that address, Martin
Ereferred to an
almost . . . certain prospect of ruin . . . where the
middle
common class
)OEof citizens are interested . . .
, and stated that
the citizen . . .
U7even if ultimately prosperous, must be attended with a
loss of time
neglect of business
)q    , and an
expense
which will be
greater
than the
original grievance
, and
to which
men in
moderate
circumstances would be
utterly unequal
gMThe area of civil litigation, of course, is not the only area where injustice
UKis done.  The field of criminal
justice
 is a world where the innocent are
Dimprisoned, where people who cannot afford bail are incarcerated for
Imonths, and a world where disproportionate and disproportionately applied
<sentences abound. As Anne Strick reported in her lengthy and
extraordinarily detailed book
Injustice for All
gCDefendants from the world of organized crime are let off five times
Coftener than are ordinary persons.  Black criminals tend to receive
Aprison terms averaging nearly one third longer than whites.  Poor
Bdefendants serve fully twice as long as those with enough money to
3hire their own lawyers. Suspects brought into New Y
g?overflowing courts receive lighter penalties than those unlucky
1enough to be convicted of the same crime upstate.
gIBut the failure to
establish Justice
 is only one benchmark.   A failure
UMto find solutions for the important social dilemmas of the day
 a failure to
promote
the general W
)W0elfare
 is another key indicator of structural
inadequacy
.  Consider Hamilton
)q+s observation regarding the
inefficacy
UFGovernment.  If even the passage of simple laws like the Brady Bill (a
Jmeasure requiring a seven-day waiting period for the purchase of handguns)
Hpresented grave difficulties (as one Representative said,
[i]t has been
Ifrustrating taking a simple commonsense measure and having to invest such
:enormous energy and resources in getting it passed . . . W
ve had to raise
UNthe visibility of this proposal to an unwarranted level in relation to what it
can do.
C), it should be no surprise that the more problematic issues of the
    Helvetica
Justice for All
(Brookings: 1989), p. 1.
Records
Injustice for All
)@    , p. 146.
Hot Debate Magnifies A Modest Gun Law
    The New Y
ork T
imes,
May 12, 1991, p. E-5,
U%Representative Edward Feighan (D-OH).
Times
+U2#day pose even greater difficulties.
lFA brief survey of contemporary journalism reveals real shortcomings in
the enactment of the
general W
elfare
 Clause.  Consider
, for example, the
environment
)D9, and the solution our Government has promulgated to cope
UFwith another fine mess we
ve gotten ourselves into, toxic waste dumps:
$The Environmental Protection Agency
Superfund,
 established a
g2decade ago as the ultimate solution to the nation
s toxic waste crisis,
gEis mired in billions of dollars in administrative costs and attorney
g@fees that threaten to make the program the most expensive public
policy fiasco in U.S. history
t>In dozens of interviews, environmental experts, former federal
gFofficials and industrial leaders across the country told of litigation
Fcosts so staggering that the final Superfund bill could be double that
 of the savings and loan debacle.
    Initially
, the Superfund
)W+s legislative sponsors expected the cleanup
gEto be accomplished in a single five-year program costing less than $5
billion.  T
7, analysts predict that the program could balloon to $1
gDtrillion in industry and federal spending and take half a century to
    complete.
,At least $200 billion of the total, they say
, is likely to be consumed
gBin
transaction costs
 that do not include any spending for actual
Fcleanup.  Most of this amount will be for corporate attorneys
 fees in
thousands of lawsuits. . . .
=A records show that only 33 toxic waste sites have been fully
g$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
g,Hirschhorn, an environmental consultant in W
ashington, D.C., and
g@former chief Superfund researcher at the congressional Office of
<echnology Assessment.  A 1989 study by the office found that
gBoverall,
50 to 70 percent of spending in the Superfund program is
inefficient.
=Many of those familiar with the program say the Superfund was
gDdoomed 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
)y,, the cost will be at least $2,000 for every
gAAmerican
 reflected in price increases passed along to consumers
@on countless chemical and petroleum-based products used in every
    Helvetica
7All the work was for naught: the Brady Bill, ultimately
, did not pass the Senate.  T
)o    en months
Uclater, in an article titled
Republicans
 Filibuster in Senate Kills Chances for Anti-Crime Bill,
New Y
ork T
Vreported that
The Senate, mired in election-year politics, today virtually killed for
Ubthe year an anti-crime bill that included a five-day nationwide waiting period for handgun sales.
\Thus, all the money and time that was invested in the passage of the Brady Bill was wasted.
    The New Y
ork T
, March 20, 1992, p. A-2.
Times
+g1:U.S. home
 without even covering the removal of hazardous
wastes. . . .
=Some analysts believe that an immense government bailout
gAdirect taxpayer expense
 will eventually be needed to finish the
=toxic cleanup and to provide emergency backing for commercial
?insurance companies facing enormous Superfund-related liability
Where is the money?  How much has been used?  On what?
g?asked Carmine Iannuzzi, president of Massachusetts-based Camger
CChemical Systems, which made the protective coating for the mustard
0gas suits worn by troops in the Persian Gulf war
It seems like a lot
gDof money has simply vanished without accomplishing anything.
. . . .
A[A]ccording to chemical industry and environmental group sources,
g?as much as $12 billion has already been consumed in transaction
@costs
 primarily feeding an immense new legal industry that has
@emerged to negotiate Superfund cases.  About $8 billion has been
used for clean-up. . . .
)According to the study by the Office of T
echnology Assessment,
g;legal fees and overhead associated with the Superfund could
Beventually exceed $200 billion, or 44 percent of anticipated total
Fcosts.  Other sources say the transaction costs, most of which will be
borne by private industry
$, may equal 60 percent of the total.
t;The most comprehensive independent research analysis of the
g$Superfund is a 1989 Rand Corp. study
, which is now being updated.
g@Principal researcher Jan Acton said he could not release the new
DRand data, which are scheduled for publication in August, but added:
The numbers (for attorneys
 fees and overhead) could be truly
staggering.
gEBut there are some individuals who enjoy wading in this environmental
quagmire
 the attorneys:
CIt took Dell Perlman
no longer than my first Superfund negotiating
Dsession
 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
gFscheduled recently at a high school near a contaminated disposal site.
@A had to hold it in the gym, because so many people turned out,
g?said Perlman, who is assistant general counsel for the Chemical
Manufacturers Association.
I looked around the stands, and I realized they were full of
g7lawyers, 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 specializing in
    Helvetica
Superfund Costs May T
op S&L Bailout,
San Francisco Chronicle
May 29, 1991, p. 1.
Times
+g1Benvironmental litigation and issues, up from fewer than 2,000 when
)the Superfund was created in 1980. . . .
9Their needs have generated a golden job market where none
existed barely
)J7, a decade ago.  According to the National Law Journal,
g<attorneys six years out of law school who have experience in
Genvironmental litigation are being offered salaries of up to $225,000 a
gCThe Superfund legislation may furnish livelihoods, even upper-class
ULlivelihoods, but it is not preventing environmental disasters in the making.
For example, the EP
)k9A reported in 1991 that 22,650 U.S. plants and facilities
UJreleased 5.7 billion pounds of new toxic chemicals into the environment in
G1989
 new releases and emissions coupled with Legislative and Judicial
Idelays against combating these emissions means that
projected costs rise
Gwith each day spent in court
 rather than at the sites themselves
Euntouched toxic wastes seep into groundwater and increase the size of
(polluted areas that must be cleaned up.
In the area of
National Health
)[(, another intrinsic part of the
general
Jelfare,
 our Government maintains the existence of a system that is itself
chronically ill:
CThe American Health care system is the most expensive in the world,
Ibut for those not in its mainstream, the care it offers is among the most
unsatisfactory
)J0. Americans pay $700 billion a year [and] [l]ife
gDexpectancy in the United States is shorter than in 15 other nations,
@and infant mortality is worse than in 22 other countries. . . .
AIn any two-year period there are 34 million people without health
g;insurance. But the number who lose their insurance at least
&temporarily is nearly double that many
, 63 million.
tBFor businesses, tension is rising.  Companies watch as health care
gEspending devours ever larger portions of their profits.  In the 1960
gGbusinesses spent about 4 to 8 cents of each dollar of profits on health
Ccare.  In 1990, it was 25 to 50 cents per dollar and rising. . . .
@But on the Potomac, when there is too much interest in a subject
g#a political paralysis can result.
In Congress there have been no
gDfewer than 14 proposals to revamp the national system.  At the White
CHouse, there have been no major proposals, as political specialists
Dwait for the right conservative proposal and the right moment
 just
6before or just after the election
 to put it forward.
In the area of
National Defens
)^!e, another aspect of the
general
Kelfare,
 the United States is beset with a military-industrial complex that
    Helvetica
San Francisco Chronicle,
May 29, 1991, p. A-4.
San Francisco Chronicle,
May 29, 1991, p. A-4.
    The New Y
ork T
imes,
May 19, 1991, Section 4, p.1.
Times
+U1Ehas failed to
provide for the common defense
 in an efficient manner
, and
UIhas instead given us debacles such as $640 toilet seats, $1,100 stool-leg
Fcaps, and $2000 nuts, not to mention pork-barrel spending like the B-1
bomber:
DThe B-1 was built on time and roughly within cost, but at a terrible
Dprice:  it doesn
t work as promised.  Its electronics system can jam
Esignals from the airborne radars of Soviet fighters and missiles, but
Bthere are apparently others that the system will not jam without a
Dcomplete redesign. . . . The B-1 will probably limp along with Band-
CAid 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.
. . . [and the reasons?]
#Design driven by service agendas.
The Air Force designed the B-
g!1 first, then its mission. . . .
'Contracts not awarded on merit alone.
Sometimes the Pentagon
gDor a powerful state delegation wants to keep a failing contractor in
*business or a production line open. . . .
-Congressional interests overriding defense.
Once the Pentagon
g9has decided on a large program, the contractor can spread
Dsubcontracts to key Congressional districts, building an unstoppable
constituency
)D/. Subcontracts for the B-1 stretched across 48
states. . . .
gFThe B-2, the B-1 replacement, has turned out to be twice the fiasco at
four times the cost.
FThe breakdown in the Justice System, the Environment, National Health,
UBand National Defense represent only a fraction of the more obvious
Bsymptoms of deeply-rooted structural inadequacies. More subtle and
Gdisturbing indicators are on the horizon, like the BCCI and Savings and
3Loan Scandals, and the failure of banks in general:
@As many as 440 banks may fail this year and in 1992, costing the
Einsurance fund $23 billion and leaving it with a deficit of nearly $6
billion next year
t?[T]he Band-aid solutions being applied, in the form of Treasury
g?borrowing, will do no more than postpone the inevitable bill to
(taxpayers until after Election Day 1992.
re in the grand denial phase, just like 1987 and 1988, when
g=Congress and the Administration did nothing about savings and
loans,
 said W
alker T
)$.odd, a lawyer who is on leave from the Federal
g;Reserve Bank of Cleveland to write a book about the Federal
Reserve Board.
>On Capitol Hill, where the House banking committee is to begin
    Helvetica
    The New Y
ork T
imes,
July 17, 1988, p. E-28.
Times
drafting legislation W
)s0ednesday to lend billions of dollars of taxpayer
gCmoney to the battered deposit insurance fund, lawmakers are running
scared.
?No incumbent sees anything to gain politically by voting to put
gAmore public funds at risk, although everyone recognizes something
5has to be done to avoid further damage to the nation
s financial
g@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
g2see the possibility of a repeat performance. . . .
g@And problems that hit even closer to home are ignored.  Alarming
UIstatistics have been released in recent years regarding children: 500,000
GAmerican children are runaways, 360,000 American children are in foster
Lcare, 14,500,000 American children suffer emotional illness or developmental
Mdeviations,  suicide is the second leading cause of death among children, and
#1,000
crack
 babies are born daily
!et in the face of these appalling
UNstatistics, the Legislative Branch has taken no decisive action.   Nor has the
    Judiciary
)/D, the protector (in theory) of individual rights.   As Judge Charles
UPGill stated,
It is ironic that, although corporations in the United States have
Hlong been held to be
persons,
 and thus are eligible for constitutional
Iprotection, the extent to which children, as individuals, have comparable
1constitutional rights is still not entirely clear
The working-out of
U&ineffectual social policies continues:
.In 1989, there were 1,200 babies born in the Y
ale-New Haven clinic.
gCNinety percent of those mothers had used illegal drugs during their
Epregnancies.  Fifty percent had used cocaine within forty-eight hours
of delivery
):;.  Child abuse cases are up eighty-five percent in the last
g;decade.  Sexual abuse cases are up 250% in the same period.
;Like most states, Connecticut has a child protective agency
.  The
g(Connecticut Department of Children and Y
outh Services (D.Y
.C.S)
g has a child abuse hotline number
'.  It is conceded that sixty percent of
g)such calls are not afforded any response.
gHThis indicator of social collapse is not confined merely to Connecticut,
U@according to The United States Advisory Board on Child Abuse and
KNeglect, which concluded that
child abuse and neglect in the United States
now represents a
national emergency
  and made three findings:
    Helvetica
    The New Y
ork T
imes,
June 16, 1991, p. E-1.
Essay on the Status of the American Child, 2000 A.D.: Chattel or Constitutionally Protected
U3Child-Citizen?
, The Honorable Charles D. Gill, 17
$Ohio Northern University Law Review
543,
p. 551.
$Ohio Northern University Law Review
    543, 548.
$Ohio Northern University Law Review
    543, 552.
Times
+t1@1. Each year hundreds of thousands of children are being starved
g?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
A3.  The United States spends billions of dollars on programs that
g#deal with the result of the nation
$s failure to prevent and treat child
abuse and neglect.
gDOf course, the
band-aid solutions
 America has offered are the only
ones it
offer
6, in a Congressional world where substantive political
UOchanges are impossible.  This litany of infirmities, and their persistence over
$time, indicates a causality that is
chronic
)*$.  Something is wrong at the deepest
U:levels of our Government
 perhaps in that glass case in W
ashington, D.C.
gIDue to these recent developments, it should be no surprise that the focus
ULin the academic world has turned to our political structure.  Many academics
Jand former officials of Government have seen the existence of these social
Jdevelopments as symptoms of a disease in the body politic, a disease which
Lis itself rooted in the structure of the 1787 Constitution.  Few have stated
Hthe 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
Ddevised no longer exists.  It has been destroyed by the complexities
@of modern life, the vast expansion of governmental function, the
*decline of Congress . . . and, principally
, by its failure to effectively
g=reorganize its management and procedures, and by the enormous
,increase in presidential power and prestige.
gCFortas was seconded by C. Douglas Dillon, Secretary of the Treasury
under President Kennedy
+, who stated that
until we are prepared to
UIexamine the basic structure of our federal system . . . our problems will
$remain . . . and, in all probability
, increase in severity
Over time, many in
UHthe academic community have attempted to
examine the basic structure of
Mour federal system
 and identify the flaws inherent in the 1787 Constitution.
o give one example, Whicker
., Strickland, and Moore (1987) listed in their
book
The Constitution Under Pressure
five such structural defects:
    Helvetica
$Ohio Northern University Law Review
    543, 555.
The Supreme Court and the Separation of Powers: A W
elcome Return to Normalcy?
George W
ashington Law Review
668, 722 (1990).
 Constitutional Reform in America
,, Charles Hardin (Iowa State: 1987), p. 177.
Times
))!Limited number of representatives
results in
,higher constituent to representative ratios.
+unreasonable workloads for representatives.
)))Selecting senators on the basis of states
4violates the democratic criterion of one-person one-
vote.
4malapportionment biases power against citizens from
large states.
))#Non-functionally specialized houses
3leaves citizens unable to effectively disaggregate
%electorally their policy preferences.
,undercuts representative responsibility and
0accountability and leads to single-issue voting.
))$Bicameral passage of all legislation
1results in lengthy delays in developing programs.
7creates multiple veto points where interest groups can
wield disproportionate power
))6No hierarchical accountability between the Senate and
the House of Representatives
7undermines long term planning, national interests, and
coordination.
1leads to internal committee specialization which
3disenfranchises voters from most policy initiation.
gIThis list, of course, is only a starting point.  In fact, there have been
several books and many
+, many articles on the imperfections of our
ULConstitution.  What is interesting is that while there has been disagreement
as to which
particular
)A#structural feature or features are
    primarily
ULresponsible 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
UGof the Framers, which molded the fundamental shape of our Constitution.
    Helvetica
!The Constitution Under Pressure,
6by  Marcia Whicker, Ruth Strickland, and Raymond Moore
U;(Praeger: 1987) (hereinafter
Whicker
 in text), p. 191,  T
able 8-1 (emphasis supplied).
Times
+g3#THE POLITICAL THEORY OF THE FRAMERS
AThe very complication of the business, by introducing a necessity
?of the concurrence of so many different bodies, would of itself
Dafford a solid objection. . . . [a] source of so great inconvenience
2and expense as alone ought to condemn the project.
Alexander Hamilton,
Federalist 75
gCThe consensus among critics of the Constitution is that many of the
UIordeals we are confronted with in our society are directly traceable to a
?constitutional structure that was designed by the Framers to be
#permanently divided against itself.
!The structure they instituted has
U?resulted in paralysis and a lack of governmental accountability
, and a
U2concomitant inability to prevent social breakdown.
JThis was not completely the fault of the Framers; after all, they were not
U-designing a Constitution for the 21st Century
.  They were simply trying to
U.create a New Constitution for the 18th Century
, since experience with the
UMprevious constitution (the Articles of Confederation) revealed fatal flaws in
that document.  Consequently
., our Framers met in the Federal Convention of
UH1787 to draft a New Constitution for the United States of America.  This
G1787 Constitution was formed under several new theories of Government
Bmost notably the Separation of Powers Principle and the need for a
5Bicameral Legislature
 which Hamilton enumerated in
Federalist 9
gAThe regular distribution of power into distinct departments
Aintroduction of legislative balances and checks
 the institution
>of courts composed of judges holding their offices during good
Abehavior
 the representation of the people in the legislature by
Adeputies 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
"imperfections lessened or avoided.
d$In one of the most famous essays in
The Federalist
Federalist
UHMadison described how the principle of Government divided against itself
Kinto three separate Branches would maintain the integrity of the individual
    Branches:
Bo what expedient, then, shall we finally resort for maintaining in
g;practice the necessary partition of power among the several
Adepartments, as laid down in the Constitution? . . . [T]he defect
    Helvetica
Federalist 75
, pp. 381-2 (Hamilton).
Federalist 9
, p. 38 (Hamilton).
Times
+g1@must be supplied, by so contriving the interior structure of the
4government as that its several constituent parts may
, by their
g=mutual relations, be the means of keeping each other in their
proper places. . . .
/[E]ach department should have a will of its own
consequently
)H3, should be so constituted that the members of each
gBshould have as little agency as possible in the appointment of the
members of the others.
A system of
Checks and Balances
)~"was instituted, which allowed each
U-one of the three Branches of Government, the
Legislative
(the lawmakers),
Executive
)9$(the enforcers of the law), and the
    Judicial
(the determinants
UJof 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
Bseveral powers in the same department, consists in giving to those
;who administer each department the necessary constitutional
Ameans and personal motives to resist encroachments of the others.
AThe 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
6connected with the constitutional rights of the place.
dIThe Framers knew that it was not enough to rely on politicians to
do the
ULright thing
 and maintain the integrity of the Branches themselves; even the
Fpower of voting politicians out of office was not enough to secure the
@constitutional structure.  Thus, the Constitution would contain
within itself
UMthe means of its self-preservation.  Under the Separation of Powers Principle
5as instituted in the Constitution, each Branch would
confront
)5    the other
U"Government was weakened under the
divide et impera
[divide and rule]
U!maxim referred to by Hamilton in
Federalist
gEThis 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.
e see it particularly
g7displayed in all the subordinate distributions of power
, where
gCconstant 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
gFinterest of every individual may be a centinel over the public rights.
    Helvetica
Federalist 51
, p. 261 (Madison).
Federalist 51
, p. 262 (Madison).
Federalist 51
, p. 263 (Madison).
Times
+d1GSince the nature of the powers were different, the nature of the checks
UIalso 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.
A[I]t is not possible to give to each department an equal power of
Aself 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
Baction, as little connected with each other as the nature of their
;common functions and their common dependence on the society
will admit.
dHAs if this evisceration of Legislative power wasn
t enough to secure the
UJobjective of the Framers, the Executive Branch was given what was actually
a Legislative power
, an overrulable
 , to stop
encroachments
 by the
UDLegislative Branch.  Thus, the form of Government given to us by the
BFramers in 1787 was a Legislative Branch divided into two separate
ABranches, with that Branch checked by a President with veto power
, and a
UHSupreme Court with the power (as it subsequently developed) to determine
0laws unconstitutional
 a Government permanently
divided against itself.
UNThis 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.
    Helvetica
Federalist 51
, p. 263 (Madison).
Times
THE SEP
TION OF POWERS AND DELA
gD[I]t would tend to increase the complexity of the political machine,
?and to add a new spring to the government, the utility of which
Ewould at best be questionable . . . [it] might in practice be subject
.to a variety of casualties and inconveniences.
 Alexander Hamilton,
Federalist 65
(on a
separate body for Impeachments)
The most obvious source of
delay
)!#in Government due to the Separation
U=of Powers Principle as instituted in the Constitution is the
    Bicameral
House
 every law must be passed in
    identical
form by
separate
Legislative
UGbodies, a requirement that allows few laws to emerge unscathed. Even in
F1776, this notion was seen as counterproductive by an anonymous author
U9who wrote in
Four Letters on Interesting Subjects
 that
AThe notion of checking by having different houses, has but little
Hweight in it, when inquired into, and in all cases it tends to embarrass
Cand prolong business; besides, what kind of checking is it that one
Ghouse is to receive from another? or which is the house that is most to
@be trusted to? . . . That some kind of convenience might now and
Bthen 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 good. . . . a perpetual and
=dangerous opposition would be kept up, and no business be got
7through: Whereas, were there a large, equal, and annual
representation in one house
&, the different parties, by being thus
blended together
)b), would hear each others arguments, which
gBadvantage they cannot have if they sit in different houses. . . .
AThe chief convenience arising from two houses is, that the second
g=may sometimes amend small imperfections which would otherwise
Hpass; yet, there is nearly as much chance of their making alteration for
Dthe worse as the better; and the supposition that a single house may
become arbitrary
)Y4, can with more reason be said of two, because their
strength is greater
)g,.  Besides, when all the supposed advantages
g(arising from two houses are put together
, they do not appear to
gBbalance the disadvantage.  A division in one house will not retard
Gbusiness, 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
U!though Madison acknowledged that
this complicated check on
    Helvetica
Federalist 65
, p. 334 (Hamilton).
Four Letters on Interesting Subjects,
 1776, 1
Founders' Constitution
Times
+U2Llegislation may in some instances be injurious as well as beneficial . . .
UDOver time, a Committee and Seniority System has been created in both
>houses of Congress which has exacerbated the latent defects of
JBicameralism.  Under our Bicameral System as it exists in the 20th Century
UEthe delay has been compounded in a way our anonymous author could not
have contemplated:
HIn order for the average bill to become a law it must be: (1) introduced
Din both the House of Representatives and the Senate; (2) referred by
>both houses to separate committees where hearings are held and
Brecommendations are made; (3) debated and passed in both chambers;
E(4) sent to a conference committee if the versions passed in separate
Ehouses are different; (5) approved by each house; and (6) signed into
Claw by the president.  Some bills, which overlap into more than one
7committee jurisdiction in each house or must be sent to
:subcommittees, have even more obstacles to final passage.
>The passage of legislation is extremely difficult under such a
gCdecentralized system.  The multiple decision points through which a
Cbill must pass require majority coalitions at each gate to push the
Ameasure 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
Cand subcommittees in both houses of Congress.  Broader issues, like
@the national defense, education and health care are divided into
?smaller subissue categories for committee consideration. . . .
CThe committees decide which bills will be reported to the floor for
g9debate and which will be placed on the back burner of the
8congressional agenda. Favorable committee reports do not
7necessarily ensure the passage of the bill on the floor
, but the more
gDfavorable the report from committee, the greater the probability for
passage. . . .
>In the Eighty-ninth Congress (1965-1967), 26,566 measures were
g=introduced, 4,200 were reported from committee and 810 became
public law
)=2.  A similar trend continued in the Ninety-seventh
gACongress:  although fewer measures were introduced (only 13,240),
<1,877 were reported from committee and 473 became public law
gAThus, the committee system as a gatekeeper of what is debated and
5what is not debated remains extremely important . . .
gCAs Greenberg (1986) noted, confirming the anonymous author of 1776,
UJthe Bicameral System inevitably led to the postponement of action, and has
Ieven changed the nature of the legislation ultimately passed.  The medium
doesn
t allow
every
message:
    Helvetica
Federalist 62
, p. 314 (Madison).
 The Constitution Under Pressure,
 pp. 161-165 (citations omitted).
Times
+g@C[T]he bicameral nature of Congress and its contrasting constituency
Dbases [Districts vs. States] not only serve to slow down the pace of
Dlegislation but also significantly decrease the probability that any
:general purpose legislation will manage to wind its way to
Acompletion.  These elements of the constitutional organization of
<Congress make it halting, conservative, and indecisive.  The
GConstitution further contributes to these characteristics by specifying
Ethat 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
Dsentiment.  By its constitutional organization, then, Congress faces
barriers to decisive, popular
, and unified action.
gFWhile the Framers approved Bicameralism, they did so with no empirical
UOevidence of its ultimate effects, ultimate effects which were, in fact, seen by
Jthem as negative.  For example, the result of the Bicameral process was an
Aenfeeblement of Government, and feeble Government was seen as bad
#Government.  As Hamilton stated in
Federalist 70
A feeble execution is
UFbut another phrase for a bad execution; and a government ill executed,
whatever it may be in theory
(, must be in practice a bad government.
UHFeeble Government, like a toothless watchdog, would bite neither mailmen
Inor burglars.  What Hamilton wrote in a different context applies equally
well to the Bicameral System:
The most to be expected from the
UJgenerality of men, in such a situation, is the negative merit of not doing
3harm, instead of the positive merit of doing good.
The positive merit of doing good
 was made virtually impossible
U6because of an institutionalized and debilitating delay
, a delay which was
UBdangerous even in 1787, a far more relaxed time. As Jay stated in
Federalist
@They who have turned their attention to the affairs of men, must
Dhave 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.  T
o discern and to
gFprofit 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
)4 , even when hours, are precious.
gGThere could be no doubt that the Legislative process, stodgy by nature,
UHwould be rendered even stodgier by the Bicameral requirement.  According
to Justice W
)CAilliam O. Douglas,
Legislative power . . . is slower to exercise
    Helvetica
The American Political System
)~<, Edward S. Greenberg (Little, Brown & Co.: 1986), p. 255.
Federalist 70
, p. 355 (Hamilton).
Federalist 72
, p. 368 (Hamilton).
Federalist 64
, p. 327 (Jay).
Times
+U1@[than Executive power].  There must be delay while the ponderous
Hmachinery of committees, hearings, and debates is put into motion.  That
Jtakes time; and while the Congress slowly moves into action, the emergency
may take its toll.
5Delay feeds vicious circles, which are vicious enough
UEwithout help from Government.  Unsolved problems mount.  A failure to
Kcombat drug abuse leads to crack addiction.  Crack addiction leads to crack
Fbabies.  The existence of crack babies leads to a diversion of medical
Hresources to help the babies.  In turn, resources need to be diverted to
Ischools to help these children, many of whom are brain-damaged, blind, or
Jotherwise physically or mentally debilitated.  Thus, money that could have
(been used to create positive effects is
wasted
in attempting to counter
U1negative effects.  What most people would see as
insane
is inevitable,
because in W
)F?ashington, D.C., structural procrastination impedes fundamental
action:
HA criticism often leveled at the U.S. Congress is its inability to enact
Clegislation concerned with pressing national problems without long,
Garduous delays.  It is not unusual for Congress to adjourn after a long
Csession without having dealt with some urgent matter before it.  In
<past years it has failed, for example, to pass a fiscal year
Fappropriations bill until months after the date when the actual fiscal
year began.
@This lack of action handicaps orderly administration.  It is not
g&uncommon for Congress to approve minor
, nondivisive measures in
every session; moreover
, in crises it can act quickly
.  But often it is
gCunable or unwilling to act on pressing problems unless they reach a
crisis stage. . . .
gFHazlitt (1942) understood that institutionalizing delay because it was
UJoccasionally beneficial was like refusing to teach people to think because
@some would think about committing crimes:
A nation can erect a
Lcomplicated set of hurdles and barriers to compel itself to delay decisions,
Jbut . . . [b]y the obstacles it erects, it discourages itself from making
UOdecision, regardless of its merits.  The self-erected barriers tend to bias its
/decision unduly against . . . proposed change.
And Hamilton
s fears that
the positive merit of doing good
 would be in jeopardy have come to
fruition. T
0, a permanent stasis is apparent in Congress. As
U7Representative Romano L. Mazzoli (D-KY) stated,
There
s a frustration
UElevel.  It doesn
t seem like any problem is ever solved around here.
    Helvetica
Congressional Oversight and the Legislative V
"eto: A Constitutional Analysis,
U!Jacob Javits and Gary Klein,  52
New Y
ork University Law Review
455, 462 (1977).
!The Constitution Under Pressure,
pp. 184-88.
A New Constitution Now
@p. 83 (all quotes taken from the first edition unless otherwise
noted)
    The New Y
ork T
imes,
June 23, 1991, p. E-5.
Times
+g1MThus, the first defect of the Separation of Powers Principle as instituted in
UPthe Constitution is that it creates delay in the face of a necessity for action.
    But that
s only the first problem.
Times
THE SEP
TION OF POWERS AND
ACCOUNT
ABILITY
gDAnother problem with the Separation of Powers Principle as it exists
UKunder our Constitution is that the division of responsibility as instituted
obliterated
accountability
)P%.   This effect was noted by Hazlitt:
g>Congress can prevent the President from doing as he wishes but
Acannot make him do what it wishes.  Responsibility is divided and
;lost even within Congress itself.  The Senate can block the
Eoverwhelming will of the House, though that will may reflect an equal
sentiment in the country
)orse, a single Senate committee chairman,
chosen by seniority
)i1, can often block the expressed will of the House
gCand prevent the Senate from expressing a will by his mere inaction.
FThe result of this system, even in their quiet times, as Bryce pointed
g:out, is that the nation does not know
how or where to fix
Fresponsibility for misfeasance or neglect,
 and
no one acts under the
#full sense of direct accountability
g"According to author Harold Laski,
HIt is desirable that the source of responsibility for governmental error
Aor wrong should be clear and unmistakable; the American system so
Hdisperses responsibility that its detection is approximately impossible.
DIt is urgent that the working of institutions should be conducted in
Ethe 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
)1=, should be sensitive to the opinion of its constituents, and
gCmaximize the opportunity of translating a coherent body of doctrine
?into statute; yet it seems the purpose of American institutions
Bdeliberately to avoid the sensitiveness, on the other hand, and to
4prevent the making of coherent policy upon the other
gHAccountability was one of the chief victims of the Separation of Powers.
UFAccording to Hazlitt,
The great defect of the American system is not
Jmerely that it can bring deadlock between . . . the two houses of Congress
R. . . but that it usually becomes impossible to fix the precise responsibility for
4that deadlock or to do anything about resolving it.
Hamilton viewed this
UNultimate consequence of the actions of the Framers in a negative light.  As he
Istated with regard to division of responsibility in the Executive Branch,
    plurality
)4C(assigning the execution of a responsibility to two separate people
    Helvetica
A New Constitution Now
pp. 4-5.
A New Constitution Now
 pp. 44-5, quoting Harold Laski,
The Dangers of Obedience
)k    (1930).
A New Constitution Now
p. 20.
Times
or bodies) would obliterate
accountability
gD[P]lurality . . . tends to conceal faults and destroy responsibility
g@. . . It often becomes impossible, amidst mutual accusations, to
=determine on whom the blame or the punishment of a pernicious
Dmeasure, or series of pernicious measures, ought really to fall.  It
5is shifted from one to another with so much dexterity
, and under
g>such plausible appearances, that the public opinion is left in
suspense about the real author
.  The circumstances which may
g@have led to any national miscarriage or misfortune are sometimes
?so complicated that, where there are a number of actors who may
.have had different degrees and kinds of agency
, though we may
g=clearly see upon the whole that there has been mismanagement,
=yet it may be impracticable to pronounce to whose account the
6evil which may have been incurred is truly chargeable.
I was overruled by my council.  The council were so divided in
g:their opinions that it was impossible to obtain any better
Cresolution on the point.
 These and similar pretexts are constantly
Aat hand, whether true or false. And who is there that will either
Atake the trouble or incur the odium of a strict scrutiny into the
Csecret springs of the transaction?  Should there be found a citizen
:zealous enough to undertake the unpromising task, if there
@happen to be a collusion between the parties concerned, how easy
8it is to clothe the circumstances with so much ambiguity
, as to
g@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
g9influence their interests have been committed to hands so
'unqualified, and so manifestly improper
. . . .
tA[P]lurality . . . tends to deprive the people of the two greatest
gCsecurities they can have for the faithful exercise of any delegated
power
)";, first, the restraints 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
g3uncertainty on whom it ought to fall; and, secondly
, the
g:opportunity of discovering with facility and clearness the
>misconduct of the persons they trust, in order either to their
Bremoval from office, or to their actual punishment, in cases which
admit of it.
g#This issue is only too contemporary
"ake, for example, the topic of the
UDNational Debt.  Congress blames the President.  The President blames
GCongress. The House blames the Senate, and the Senate blames the House.
BThe Democrats blame the Republicans, and the Republicans blame the
    Helvetica
Federalist 70
, p. 358-60 (Hamilton).
Times
Democrats.  Who
s at fault?   As W
oodrow W
ilson wrote in 1886:
gMIt is . . . manifestly a radical defect in our federal system that it parcels
Cout power and confuses responsibility as it does.  The main purpose
?of the Convention of 1787 seems to have been to accomplish this
Bgrievous mistake.  The
literary theory
 of checks and balances is
Dsimply a consistent account of what our constitution-makers tried to
Ado; and those checks and balances have proved mischievous just to
Bthe extent to which they have succeeded in establishing themselves
Nas realities.  It  is quite safe to say that were it possible to call together
Bagain the members of that wonderful Convention to view the work of
Itheir hands in the light of the century that has tested it, they would be
Dthe first to admit that the only fruit of dividing power had been to
make it irresponsible.
gDPower is divided under our Constitution not only because legislation
UImust pass two separate Legislative bodies in identical form, and not only
Hbecause legislation must also survive a potential Presidential veto, but
Fbecause legislation, even if passed, must be enforced by the Executive
NBranch.  In point of fact, passage of legislation is only the first hurdle; in
Gactual practice, laws can be vitiated by an Executive Branch which does
take care
 that laws be faithfully executed, as required by the
UMConstitution.  This Accountability violation was reflected in the headline to
an article appearing in
    The New Y
ork T
Congress and
U=Administration Trade Blame for Keeping Legislation on Shelf
>Because of bureaucratic foot-dragging, complex directives from
0Congress and in some cases ideological hostility
, the Federal
g9Government has failed to carry out major parts of health,
Aenvironmental and housing laws passed with much fanfare in recent
years.
AThe delays have left Congress stymied, consumer groups frustrated
g?and businesses sometimes paralyzed in the absence of prescribed
regulations. . . .
?Bush Administration officials acknowledge that they have missed
gAmany of the deadlines set by Congress for the new laws.  But they
Fsay 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 more widespread in
g(recent years.  They cite these examples:
>wo decades after Congress ordered the Environmental Protection
g?Agency to identify and regulate
hazardous air pollutants,
?agency has issued emission standards for only seven chemicals.
    Helvetica
Congressional Government,
oodrow Wilson (quoted in
)j The President, Congress, and the
Constitution
)3G, Christopher H. Pyle and Richard M. Pious (Free Press: 1984), p. 160).
Times
+t18In 1987, Congress established a comprehensive program of
gCassistance to homeless people.  But recently Federal District Judge
BOliver Gasch accused the Administration of a
complete failure
comply with the law
)m2, saying
pitifully few
 unused Federal properties
g5had been made available to assist the homeless. . . .
AThe Government has yet to issue final regulations for cleaning up
g$waste storage sites under a 1984 law
.  As a result, thousands of
g?companies are operating
under a cloud of doubt and uncertainty
gDsaid Theresa Pugh, director of environmental quality at the National
Association of Manufacturers.
There are a million ways for recalcitrant Federal agencies to vitiate
a law
 said Representative Ron W
!yden, Democrat of Oregon.
It is
gEextraordinarily frustrating.  Contrary to what civics textbooks might
Lsuggest, passing legislation today is just the very first step.  After that,
>you have to run through a veritable gauntlet of administrative
5processes and procedures to get the law carried out.
>The Reagan Administration sometimes used administrative delays
gDas a device to enforce its philosophy of less government and to save
money
)#;, and Congress responded by imposing more specific mandates
g<and tighter deadlines, creating a cycle that aggravated the
problem. . . .
>Congress, lobbyists, the White House and millions of Americans
gItypically 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
t:James M. Strock, enforcement director of the Environmental
g1Protection Agency from 1989 through this February
, said the delays
gBled to a vicious circle:  When Congress feels that an agency is is
moving too slowly
)e4, it sets deadlines.  The agency fails to meet them,
gCgenerating 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 common after a decade in which
g>Republicans controlled the White House and Democrats dominated
FCongress.  Regulations can be written to distort or even to thwart the
intent of Congress.  T
)x,o prevent such abuse, Congress writes highly
g-prescriptive laws that read like regulations.
3Even when an agency is eager to carry out a new law
    , it must
g?negotiate with the Office of Management and Budget, which often
Cdemands changes in proposed rules to reduce the cost or to minimize
the burden on private industry
&.  Congress itself may not provide the
g.money needed to carry out or enforce a new law
. . . .
t=Michael J. Horowitz, counsel to the director of the Office of
g4Management and Budget from 1981 to 1985, said Reagan
DAdministration officials often viewed
nonenforcement of the law
Times
+g1Aan easy way to deal with statutes and regulations they disliked.
CFederal courts recently criticized the Federal Trade Commission for
gGfailing to carry out a simple 1986 law that required health warnings in
Aall advertisements for snuff and chewing tobacco.  The commission
6exempted advertisements on promotional products like T
-shirts, beach
g(blankets, baseball caps and coffee mugs.
BThe law prescribed the exact text of the warnings, which said, for
g-example,
This product may cause mouth cancer
  The F
.C. argued
g6that people would misread such warnings to mean that T
-shirts and
g;beach blankets caused cancer when they were emblazoned with
advertisements for tobacco.
5In a study of the Medicaid program, Eleanor D. Kinney
, a law
professor at Indiana University
%, found that Federal officials issued
gHrules rapidly
to implement executive branch initiatives.
  But she said
Eofficials were
quite slow
 to publish rules needed to carry out laws
Fopposed by the Administration.  Thus, she said, rules intended to save
money were issued promptly
#, while rules expanding health care
g=benefits for children and pregnant women were delayed. . . .
Representative Henry A. W
$axman, Democrat of California, said,
The E.P
).=.A. often produces carefully considered regulatory proposals,
gBbased on an extensive record and lengthy studies, only to see them
?dismissed out of hand by White House officials eager to protect
&industry from the cost of regulation.
gLNote that our current Constitution, as it exists in practice, is in effect a
polycameral
Government. What began as a
separation
)E    of powers
developed into a
blending
)7+of powers, with Legislative power gradually
UIcoming to be vested in the Executive Branch.  This development has led to
Mthe demise of yet another critical Principle: the Principle of Majority Rule.
    Helvetica
U.S. Laws Delayed by Complex Rules and Partisanship,
    The New Y
ork T
imes,
    March 31,
1991, p. A-1.
Times
THE SEP
TION OF POWERS AND
g$THE DESTRUCTION OF THE PRINCIPLE OF
MAJORITY RULE
In our modern century
-, this
complicated check on legislation
UHindeed proven to be
injurious,
 leading not only to delay and a lack of
Accountability
)N=, but also to a departure from the central maxim of democracy
 the Principle of
Majority Rule
gAThe inevitable tendency of our system has been
to widen the gulf
<between the government and the people, to discourage serious
Apolitical thinking and debate save at moments of grave crisis, to
Cincrease the power of corrupt machine politics, and to cultivate an
Ceasy-going indifference to abuses. . . . The existing Constitution,
Hhowever great its virtues in any particular respect, does not permit of
Fgenuine popular government.  The rigidity of the electoral system, the
@divorce of the executive from the legislature, and the well-nigh
Buncontrollable power of the courts combine to centralize political
Bpower in the hands of a comparatively few individuals who are only
Bremotely responsible to the people, and whose acts can be reviewed
0by the people only at long and fixed intervals.
gCThe 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.
Whicker (1987) noted,
ABicameralism . . . diminishes accountability and effectiveness by
@providing several more decision points at which powerful special
Ainterests may thwart legislation which actually reflects majority
Copinion.  Bicameralism then serves the interests of powerful, often
@economically based minority factions, which can muster the money
gAknowledge and resources to engage in machinations in the halls of
>Congress.  Bicameralism does nothing to serve the interests of
>minority interests which have traditionally been excluded from
Bsocietal power structures, and often results in thwarting majority
rule.
gDBut Hamilton had warned against solutions which violated fundamental
maxims:
    Helvetica
A New Constitution Now
!p. 39, quoting William McDonald,
A New Constitution for a
New America
(1921).
Federalist 22
, pp. 105-6 (Hamilton).
!The Constitution Under Pressure,
p. 198.
Times
+g1'[W]hat at first sight may seem a remedy
, is, in reality
, a poison.
gB. . . 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 operation is to
g:embarrass the administration, to destroy the energy of the
Dgovernment, and to substitute the pleasure, caprice, or artifices of
=an insignificant, turbulent, or corrupt junto, to the regular
5deliberations and decisions of a respectable majority
In those
g>emergencies of a nation, in which the goodness or badness, the
Fweakness or strength, of its government is of the greatest importance,
Gthere is commonly a necessity for action.  The public business must, in
some way or other
, go forward.
If a pertinacious minority can
g!control the opinion of a majority
, respecting the best mode of
conducting it, the majority
&, in order that something may be done,
g@must conform to the views of the minority; and thus the sense of
4the smaller number will overrule that of the greater
, and give a
g:tone to the national proceedings.  Hence, tedious delays
=continual negotiation and intrigue
 contemptible compromises
Cof 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
Anumber of votes, kept in a state of inaction.  Its situation must
7always savor of weakness, sometimes border upon anarchy
. . . .
t9When the concurrence of a large number is required by the
gAconstitution to the doing of any national act, we are apt to rest
Csatisfied that all is safe, because nothing improper will be likely
to be done
)<3; but we forget how much good may be prevented, and
g;how much ill may be produced, by the power of hindering the
doing what may be necessary
$, and of keeping affairs in the same
g8unfavorable posture in which they may happen to stand at
particular periods.
Unfortunately
)J&, our form of Government has not only
allowed
pertinacious
 Minority to stifle Majority preferences, it has actually
institutionalized
)]9the phenomenon.  What at first sight seemed a remedy was,
in reality
).D, a poison.  The multiple decision points required by the Separation
UJof Powers Principle as instituted in the Constitution have given rise to a
Government not of, by
, and for the
People
, but of, by
, and for the
Special
Interest Groups
    Helvetica
Federalist 22
, pp. 107-08 (Hamilton).
Times
The Rise of the Special Inter
g7Because the Government is complicated and fundamentally
UGunaccountable, only special interests can afford to get involved in the
Kpolitical system, since the costs of entry are high, and involvement is not
Lcost-effective for the average Citizen: according to John Gardner (Secretary
of Health, Education and W
.elfare in the Johnson Administration), it is a
UFmistake to think of the Federal Government as a unified entity; rather
[i]t is
UGa collection of fragments under the virtual control of highly organized
Pspecial interests . . . In the special-interest state that we have forged, every
2well-organized interest owns a piece of the rock.
gCThis consequence was known to the Framers, and was properly feared.
UOIn fact, Madison was acutely aware of the threat that special 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. T
)?6o Madison, preventing the threat of faction control of
U:Government was a key role for any constitution.  Amazingly
    , however
UEMadison dismissed the most critical problem society would face in one
&sentence!  As Elliot (1985) reported,
7What has not attracted sufficient notice about Madison
s argument
Federalist 10
)O    , however
):!, is the cavalier way in which he
gAdismisses
minority Factions
 as a potential threat to the public
    interest:
-If a faction consists of less than a majority
, relief is supplied by
tBthe 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
)23s argument that popular elections are sufficient to
gDinsure that minority interest groups do not pose a serious threat to
$the public interest is simply wrong.
Madison
s argument depends
gBon the assumption that majorities will take the steps necessary to
Ginform and organize themselves to protect their self-interest, but this
>assumption is demonstrably wrong, as Mancur Olson has shown in
his recent book,
)W The Rise and Decline of Nations.
gEMadison was wrong because Majority organization is not cost-effective
U)when the benefits of organizing are very
slight
(i.e., individual Government
    Helvetica
    The New Y
ork T
imes,
November 14, 1978, p. 1.
Constitutional Conventions and the Deficit.
 E. Donald Elliot, 1985
Duke Law Journal
U11093-94  (footnotes omitted) (emphasis supplied).
Times
+U1Mactions with potential Majority opposition, such as tax loopholes for special
Pinterests, result in only a slight cost to individuals who are not a part of the
Jfavored Minority)
 and the costs of organizing a Majority around discrete
issues are
9.  No such debilitating effects affect the well-organized
U)special interests, who a) have the funds
organize, b) have a
cost-effective
UMfinancial interest to organize [e.g., a tax loophole can have enormous short-
Bterm financial consequences for the special interest], and c) are
unified
UHthe issue which most affects them.  Compounding these effects, as Elliot
Hfurther observed, the passage of time has eroded whatever natural checks
Nthere were against the ability of special interests to capture the Government:
C[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
Binterests among the varying electoral constituencies would prevent
Cany special interest group from exercising undue influence over the
government as a whole. . . .
0The house of Representatives being to be elected
2immediately by the people, the Senate by the State
;legislatures, the President by the electors chosen for that
=purpose by the people, there would be little probability of a
7common interest to cement these different branches in a
2predilection for any particular class of electors.
g=The basic institutional checks designed by the framers of the
BConstitution to limit the power of interest groups have long since
Aeroded.  First, the seventeenth amendment provided direct popular
Celection of Senators.  Second, the electoral college has now become
0largely vestigial, so that as a practical matter
, the President is also
gCpopularly elected.  Third, a vast
administrative state
 with broad
Cdelegated powers has arisen that lies largely outside the system of
Achecks and balances crafted so carefully by the framers.  Finally
g?both the country and the nature of government have changed, the
Fprinciple of geographic diversity of interests, upon which the framers
Dplaced primary reliance, is no longer as potent a check on the power
7of special interest groups as it may once have been.  T
oday there are
g=many interest groups that are more or less evenly distributed
Ethroughout the country (social security recipients, for example), and
Ethey can bring potent electoral pressures to bear on Representatives,
Senators, and Presidents alike.
AThe cumulative effect of these changes is to render our political
g@institutions systematically vulnerable to the influence of well-
Corganized, narrowly-focused groups seeking subsidies or other forms
Cof preferential treatment from the federal government.  The current
Times
+g1?deficit is merely the outward symptom of these more fundamental
Dproblems, resulting from the way in which our political institutions
have evolved.
gAThe existence of latent structural flaws became apparent when the
UHNation began incurring its first serious budget deficits in the late 60
s (as a
consequence of the V
ietnam W
)4'ar).  The Government began its slow and
UMinevitable decline, as the special interests began to consolidate their power
U@By 1978, the systemic nature of our infirmities had become clear
, and in
November of that year
    The New Y
ork T
!devoted a three-part series to an
U,examination of this breakdown in Government:
John Gardner
)H7, the founder of Common Cause, the public-affairs lobby
g?says the nation is being whipsawed by a multiplicity of special
Einterest groups, resulting in
a paralysis in national policymaking.
@Daniel Bell, professor of sociology at Harvard, said at a recent
gDmeeting of the American Jewish Congress:
Our political institutions
6do not match the scales of economic and social reality
.  The national
gGstate has become too small for the big problems of life and too big for
the small problems.
 . . .
om Hayden says
)q'ou can take any issue you want, and the
g>system isn
t delivering.  There is no glue holding the country
together
t9From the White House, Stuart Eizenstat, President Carter
s chief
gCadviser for domestic affairs, speaks of
an increasingly fragmented
society
t>Disarray in government and dissatisfaction with it have always
g(been part of the American system. John F
. Kennedy is remembered,
gAfor example, as a forceful, charismatic President but one who was
;unable to effect relatively mild reforms in the early 1960
s after
gBhaving run on a promise to
get this country moving again.
 . . .
?[T]here is a consensus that no coalition of interests is strong
gFenough to set priorities for the overall public good to effect reforms
Fthat have wide public support, to root out inefficiency and corruption
>in government programs, and to inspire confidence in political
leadership.
DMany see this disunity as systemic, and therefore separate from, the
gGfailures 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.
m not sure anybody could pull this Government together
gERepresentative Morris K. Udall, Democrat of Arizona, remarked . . . .
BCongress has decentralized itself until every special interest has
access to policy
)`,, but the leadership cannot put broad policy
    Helvetica
Duke Law Journal
)L01094-95 (footnotes omitted) (emphasis supplied).
Times
objectives into effect.
<More and more members of Congress see themselves and present
gEthemselves as ombudsmen for their states or districts, rather than as
<representatives trying to effect broad national and foreign
policies. . . .
In a telling prediction, Fred W
    ertheimer
, the senior vice president of
Common Cause, noted that:
It is a Congress becoming more and more paralyzed in its ability to
Gmake decisions on behalf of all citizens.  It is a Congress that in the
Anot-too-distant future will be drowning in special-interest group
political money
t@On July 19, the House declined to bypass its Rules Committee and
gBvote on legislation to establish public financing of Congressional
Fcampaigns for 1980.  The Rules Committee, which clears bills for floor
"action, is opposed to the measure.
1Another attempt at passage will be made next year
.  However
, some
g>supporters fear that the large amount of money poured into the
@campaigns of incumbents who won re-election will make passage of
Bthe bill even more difficult, and the phenomenon . . . will go on.
gJThe cycle of our time is that big business requires big regulation
 but a
ULconstitutional structure inadequate for the passage of necessary legislation
2means that Legislative power must be delegated to
bureaucrats
; and, since
UEbureaucrats are not accountable in the traditional sense, Congressmen
1and/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
Gaffairs of powerful economic interests.  Over the last 15 years Federal
@laws and regulations have increasingly put the Government in the
Dbusiness of overseeing or regulating aspects of the automobile, oil,
8gas, education, and health care industries among others.
DIn turn, each of these interest groups has organized or expanded its
gHeffort to influence Government activities at all levels, and the success
Jof those efforts has stimulated the organization of still other lobbies to
0augment or oppose the presence of the first in W
ashington.
'e have a fragmented, Balkanized society
 Stuart Eizenstat,
President Carter
)Z8s chief adviser for domestic affairs, has said,
with an
g@economic proliferation of special economic interest groups, each
?interested in only one domestic program
 protecting it, having
AGovernment spend more for it, unwilling to see it modified.
. . .
    Helvetica
Governing America,
)\    The New Y
ork T
imes,
November 12, 1978, p. 1.
    The New Y
ork T
imes,
November 13, 1978, p. B-9.
Times
om Matthew
)D7, a consultant to several public-interest groups on the
g@political left, says that probably no more than 6 percent of the
Bpopulation is involved in the whole beehive of activity
 from the
<people sending in contributions to some causes to the people
traveling to W
)K4ashington or to state capitals to do their lobbying.
t7The rest of the population only lives with the results.
gDIn what can be referred to as the
pusher
 theory of Government, the
UGIncumbents of Congress have themselves created the conditions requiring
their intervention:
The nature of the W
)r#ashington system is now quite clear
 Morris P
gCFiorina, Associate Professor of Political Science at the California
Institute of T
)O    echnology
)8%, wrote in a book published last year
Congress:  Keystone of the W
ashington Establishment.
Congressmen earn electoral credits by establishing various Federal
programs,
)N5. Fiorina wrote.
The legislation is drafted in very
gCgeneral terms, so some agency must translate a vague policy mandate
;into a functioning program, a process that necessitates the
7promulgation of rules and regulations and, incidentally
, the trampling
g>of numerous toes.  At the next stage, aggrieved and or hopeful
Cconstituents petition their Congressmen to intervene in the complex
process of the bureaucracy
The cycle closes,
 he continued,
when the Congressman lends a
sympathetic ear
)Z,, piously denounces the evils of bureaucracy
intervenes in the latter
/s decisions, and rides a grateful electorate to
gAever more impressive electoral showings.  Congressmen take credit
1coming and going.  They are the alpha and omega.
gGUnder the system of rule by special interests, the Congressman has
UKprincipal functions:  to make laws and to keep laws from being made . . . .
JThe first of these he and his colleagues perform only with sweat, patience
Land a remarkable skill in the handling of creaking machinery; but the second
they perform daily
)g , with ease and infinite variety
Congressmen can
U=protect your industry
 for a price.  Here are some examples:
[I]t was found in extensive experiments that cash housing
gCallowances worked better in many cities than the cumbersome, costly
:subsidy programs.  But such allowances were not even under
8consideration, a White House official said, because the
?commercial and professional interests that feed off the subsidy
3programs in effect would surely block such a move.
    Helvetica
    The New Y
ork T
imes,
November 14, 1978,  p. B-14.
    The New Y
ork T
imes,
November 13, 1978, p. B-9.
Obstacle Course on Capitol Hill
-, Robert Bendiner (McGraw Hill: 1964), p. 15.
Times
A number of proposed changes long supported by a majority of
gAthe people, according to polls of public opinion, have never been
Henacted because of special-interest pressure.  President Carter sent his
?tax package to Congress assured, on the basis of polling data,
Athat more than 60 percent of the people favored most of the bill
provisions.  But in the House W
ays and Means Committee, it was
gGturned into a vehicle for reducing the capital gains tax as well as for
general tax reduction.
In 1974, the Senate passed legislation for no-fault auto insurance,
g!intended to save the public money
.  The American Trial Lawyers
gBAssociation, whose members earn money for trying negligence suits,
Bset up a political action committee to contribute to Congressional
=candidates. In 1973, the Senate defeated the measure.  Common
CCause reported that it found that five Senators who were up for re-
@election in 1976 switched their votes from
 between
1974 and 1975 and, subsequently
, received substantial campaign
gFcontributions from the lawyers, who poured half a million dollars into
Athe 1976 campaigns and have continued to make contributions. Last
summer
)':, the House Commerce Committee killed a no-fault insurance
g$bill by a vote 22 to 19. The sponsor
, Representative Bob Eckhardt,
Democrat of T
)O4exas, said opposition from the lawyers was the chief
reason for the bill
s defeat.
The Rise of Special Inter
ests and the Incumbency Effect
g1The rise of Special Interest Rule has created an
Incumbency Effect
UEspecial interests give money to Incumbents, who sit on the committees
(affecting these interests.  A permanent
quid pro quo
is established
 votes
UHfor contributions.  More contributions means a greater ability to defeat
Mchallengers.  Challengers, who have nothing to
bring to the table,
 are at a
2tremendous disadvantage, as Philip Stern noted in
The Best Congress
Money Can Buy
g@In 1986, out of 214 House contests in which the incumbent sought
Ereelection, GE [the General Electric Pac] backed the incumbent in 211
C(including 34 in which the incumbent had no opponent).  That is, GE
selected the incumbent
98.6 percent of the time
.  Aside from a single
g>instance where GE backed both the incumbent and the challenger
g3only 3 of 214 contests
 1.4 percent
 did the GE P
AC managers
gFfind the challenger preferable to the incumbent.  It was as if someone
Cfrom On High had issued instructions:
Never mind candidates
 party
Caffiliation, their attitudes toward big business, or their need for
    Helvetica
    The New Y
ork T
imes,
November 14, 1978, p. B-14.
Times
+g1"campaign funds.  Whatever you do,
support the incumbent
 . . .
t?[I]n contests where incumbents were seeking reelection in 1986,
<ACS overall gave more than 88 percent of their money to them
g"and only 12 percent to challengers
g?The massive influx of cash worked: in 1986, Incumbents had a 98
percent success rate.
,Incumbents not only receive money from local
USinterests, but also National special interests, interests that have a great deal to
(gain financially from the
right
 votes:
Dallas
)$?s Democratic Representative Martin Frost offers an illustrative
case study of the dairy P
 generosity to such an urban
gGrepresentative.  His largely big-city district contains, at most, three
>dairy farmers
 and some 527,000 dairy consumers.  Many of the
Blatter have incomes below the official government poverty line and
Dcan ill afford to pay the higher dairy prices the government subsidy
program almost surely causes.
>Therefore, in voting for the higher subsidy level, Congressman
gDFrost sided with the three dairy farmers in his district against the
:interests of the hundreds of thousands of consumers.  Why?
BA relevant factor to consider while pondering that question is the
gD$45,050 the dairy lobby had lavished on this big-city congressman in
@the eight years 1979 through 1986.  That made him the fifteenth-
=highest recipient of dairy money among the 435 members of the
House, rural or urban.
g*Perhaps the most dramatic charts in Stern
s book are charts showing
UEextremely disturbing correlations between funds received from special
Pinterests and votes on legislation affecting those interests.  For example, here
Dare the correlations between money received and votes cast for dairy
subsidies:
    Helvetica
OF THOSE RECEIVING THIS
. . . THIS PERCENT
AMOUNT FROM THE DAIRY LOBBY
VOTED FOR DAIRY
IN 1979 THROUGH 1986
SUBSIDIES IN 1985
g{
MORE THAN $30,000
100 %
$20,000 TO $30,000
$10,000 TO $20,000
$2,500 TO $10,00
$1 TO $2,500
The Best Congress Money Can Buy
*, by Philip Stern (Pantheon: 1988), p. 33.
The Best Congress Money Can Buy
, p. 36.
The Best Congress Money Can Buy
, p. 46.
The Best Congress Money Can Buy
, p. 47.
Times
+g@DThis effect, visible on recorded votes, must be even more pronounced
UKwhere the votes aren
t recorded
 in discussions after-hours and within the
committees.  In this manner
&, the fundamental maxim of Republican
UBDemocratic Government, Majority Rule, has been entirely subverted.
Times
THE SEP
TION OF POWERS AND
UNDUE A
TTENTION TO LOCAL INTERESTS
Delay
.  Unaccountability
)f2.  Obliteration of the Principle of Majority Rule.
UCBut these are not the only consequences of the Separation of Powers
HPrinciple as instituted in the Constitution.  In addition, the system as
Ninstituted interferes with an essential criterion for a desirable Legislature:
that the Legislature take a
National
, as opposed to a
)[    Parochial
, view
gHOne desirable criterion for national legislatures is the ability of both
Dindividual members and the institution to take a broad national view
Jof problems and to act in the national interest. . . . A small benefit for
=the nation as a whole, for example, should not necessarily be
=implemented if serious damage would accrue to a region of the
Hnation.  At the same time, a minor benefit for part of the nation should
Bnot be purchased at the cost of severe hardship to the nation as a
whole.
BThe authoritative allocation of resources often occurs in national
gDlegislatures.  This is a critical task and when performed poorly can
Eresult in waste.  In some instances the resources being allocated are
Ascarce.  The waste of such resources may inflict harsh costs on a
?particular segment in a society or on the nation at large.  The
Ethoughtful allocation of resources in an efficient manner can make or
break the welfare of a nation.
gGThe need to restrain the effects of Parochialism were well-known at the
UMFederal Convention.  A susceptibility to parochial interests was, indeed, one
Fof the fatal flaws of the Articles of Confederation, as pointed out by
Pennsylvania Delegate James W
ilson on June 8:
$e are now one nation of brethren.  W
e must bury all local
g?interests & distinctions. . . . No sooner were the State Govts.
6formed than their jealousy & ambition began to display
<themselves.  Each endeavoured to cut a slice from the common
@loaf, to add to its own morsel, till at length the confederation
?became frittered down to the impotent condition in which it now
Cstands.  Review the progress of the articles of Confederation thro
5Congress & compare the first & last draught of it.  T
o correct its
gGvices is the business of this convention.  One of its vices is the want
Eof an effectual controul in the whole over its parts. . . . leave the
Bwhole at the mercy of each part, and will not the general interest
-be continually sacrificed to local interests?
    Helvetica
!The Constitution Under Pressure,
p. 180.
Records
166-67 (June 8).
Times
+g1BBut the structure of Government given to us by the Framers did not
U=achieve their stated goal that Government should promote the
general
UMwelfare, and not the local welfare.  Part of the reason for this is that even
though Congress takes action
collectively
, voting by Congressmen takes
place
individually
)C2, a structural phenomenon leading to Parochialism:
gCWhile the national legislature as an entity may receive low popular
Hratings, it is possible for individual legislators to receive undeserved
Khigh ratings from their states or districts.  Many of these legislators are
Ereelected and as incumbents appear to benefit from citizen ignorance.
>Apparently the electorate perceives that the problems with the
Dnational legislature are caused by representatives from districts or
Fstates other than their own, and legislators often reinforce this view
t?Due to ignorance, citizens may not discern whether or not their
gArepresentatives are good legislators who can mobilize support for
>their bills and pass legislation, thereby solving problems and
Aimplementing their objectives.  Citizens may also have difficulty
Aidentifying merely symbolic action wherein legislators express an
Copinion but suggest no policy changes, or make statements of policy
6without sponsoring legislation to implement it. . . .
5Members may contribute to voter ignorance and apathy
g>in a variety of ways. Legislators may stress voter access and
Fidentification with the constituents more than what is going on in the
national legislature.
gIOur constitutional structure inevitably leads to Parochialism for another
UGreason
 the delivery of
pork barrel
 projects to local constituents:
ACongress is often accused of being parochial, reflecting narrowly
@based constituent interests rather than assuming a national view
. . . .
t?One measure of parochialism in Congress is the delivery of pork
gCbarrel legislation to congressional districts and states.  This may
Gconsist of special projects, new programs, or public works or buildings
Cwhich benefit constituents in a particular geographic region and do
Anot benefit other citizens.  The conferment of such benefits is a
@constant feature of congressional policy making.  Particularized
Fbenefits 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 constituency can claim credit for the
Fallocation.  Representatives and Senators view pork barrel legislation
Eas crucial to reelection, a perception which diminishes the incentive
8among current members to abolish or limit its use. . . .
    Helvetica
!The Constitution Under Pressure,
p. 183.
!The Constitution Under Pressure,
pp. 184-8 (citations omitted).
Times
+g@FA process which rewards the creation of
pork barrel
 legislation must
UGpenalize the creation of legislation in the National Interest, and must
inevitably effect the
quality
of legislation:
gCGiven [the] number of legislative hurdles, important legislation is
Foften 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 become well
aware of the lengthy
)z/, sequential, internally specialized, bicameral
gElegislative processes.  They often manage to impede or alter bills at
Eveto points along the process.  The length of the process is not only
ponderous, but in the W
(ashington environment where the interest
gEgroup legislative
hunting season
 never closes, the long duration of
Lthe process increases bill vulnerability to special interest attacks. . . .
 For example, in 1965 President L
yndon Johnson suggested a bold
gFsolution to the problems of crime and poverty in inner-city slums.  As
@the bill was originally drafted, about a dozen cities would have
Breceived large sums of money to be spent under federal supervision
>in order to promote racial integration and renovate the slums.
APassage of this program in Congress became a study in compromise.
FCompromise, in itself, is not an undesirable value, but it can subvert
Fthe original purpose of legislation.  Proponents of the
Demonstration
1Cities
 legislation had to compromise extensively
.  They had to
gGdismiss the goal of racial integration, loosen federal control over the
?administration of the program, and make more cities eligible to
Bparticipate (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. . . .
gGAccording to Lawrence Dodd, the Constitution lacks a centralizing force
U1which would ameliorate this nascent Parochialism:
CThe Constitution provides no function or structure to Congress that
Bwould create internal congressional incentives supportive of power
9centralization, coordination, and institutional integrity
.  It merely
gAassumes that these will be maintained by the natural operation of
,political life in a simple, agrarian society
.  When the latter assumption
gGis no longer valid, when it is no longer true that policy problems will
Abe simple and congressional life will draw only a few legislators
6committed to long-term congressional careers and power
, there is no
gBprovision within the constitutional system
 no incentive system
Gthat will lead members naturally to sustain mechanisms of institutional
    Helvetica
!The Constitution Under Pressure,
pp. 184-8 (citations omitted).
Times
centralization.
g?A Government without a centralizing force is a Government which
UIcompromises by passing Bills which benefit local areas, but can only with
6great difficulty pass Bills in the National Interest.
EThus the problems that have resulted from the political theory of the
Framers.  In review
)m4, we find that the Separation of Powers Principle as
UJimplemented in the Constitution has made impossible the fulfillment of the
3Preamble strictures that Government must
establish
Justice
 and
promote
the general W
)R?elfare.
 These two critical criteria have been violated, and so
U-have four other critical criteria: Efficiency
, Accountability
, Majority Rule,
UEand National Interest Representation. Instead, we universally find in
Government
Delay
Unaccountability
Minority
, and
Parochialism
gHThese six criteria violations are serious enough, but there is one final
UPviolation
 in fact, the last that will confront any constitution: the violation
#of the Principle of Constitutional
Self-Preservation
. The Separation of
UBPowers Principle, in seeking to preserve the form of Government by
;crippling Government, made the formation of a subterranean,
unconstitutional
Government necessary
)x%.  As Hardin (1987) wrote,
It is not
UHsimply that the Separation of Powers leads to deadlock (or gridlock) and
Astalemate . . . the Separation of Powers poses a deadly danger to
"constitutional government itself.
!A Principle meant to preserve the
U0Constitution has led inexorably to its downfall.
    Helvetica
Congress and the Quest for Power,
 Lawrence C. Dodd,
Studies of Congress
U((Congressional Quarterly: 1985), p. 516.
 Constitutional Reform in America
, p. xi.
Times
DELEGA
TION AND
g THE ESCAPE FROM THE CONSTITUTION
6legislative Powers herein granted shall be vested in a
Congress
)79of the United States, which shall consist of a Senate and
House of Representatives.
 Article One, Section One (emphasis supplied)
gBA weak constitution must necessarily terminate in dissolution, for
@want of proper powers, or the usurpation of powers requisite for
the public safety
)\0.  Whether the usurpation, when once begun, will
g:stop at the salutary point, or go forward to the dangerous
8extreme, must depend on the contingencies of the moment.
:yranny has perhaps oftener grown out of the assumptions of
power
, called for
)K(, on pressing exigencies, by a defective
g:constitution, than out of the full exercise of the largest
constitutional authorities.
 James Madison,
Federalist 20
gIArticle One, Section One of the Constitution states in no uncertain terms
that
7legislative powers herein granted shall be vested in a
    Congress
the United States . . . .
This reflects John Locke
s view
, stated in his
Second T
reatise
that
Legislative
)@#can have no power to transfer their
U7Authority of making Laws, and place it in other hands.
This Principle
UKwas etched indelibly into our Constitution in Article One, Section One, and
&was well understood by the authors of
The Federalist
.  According to John
, the Framers had
given the power of making laws to the legislature
. . .
, and  Hamilton wrote that
the legislature . . . prescribes the rules by
UBwhich the duties and rights of every citizen are to be regulated.
was a power that
)k2could not be transferred by the Legislative Branch
UJaccording to Madison,
[a]s the people are the only legitimate fountain of
Ppower . . . it seems strictly consonant to the republican theory to recur to the
Fsame original authority . . . whenever it may be necessary to enlarge,
8diminish, or new-model the powers of government . . . .
Therefore, it was
U no surprise when Chief Justice T
.aft stated in 1937 that
it is a breach of the
UGNational fundamental law if Congress gives up its legislative power and
Atransfers it to the President, or to the Judicial branch . . . .
    Helvetica
Federalist 20
, p. 97 (Madison).
(emphasis supplied).
Second Treatise,
141, John Locke, 1
Founders' Constitution
Federalist 64
, p. 328 (Jay).
Federalist 78
, p. 373 (Hamilton).
Federalist 49
, p. 255 (Madison).
Hampton Jr
. & Co.
, 276 U.S. 394, 406 (1928).
Times
+g1DUnder our constitutional system, there are sound reasons to prohibit
U$delegation of this Legislative power
"o permit the concept of Delegation
U8would allow the laws created by delegated authorities to
evade
the system
UFof Checks and Balances created by the Framers: under a constitution of
delegated Legislative authority
"People would have no check against
UDunpopular legislation, a check which was built into the Constitution
expressly for that purpose.
*According to Madison, the Bicameral System
U1instituted in the Constitution would insure that
[n]o law or resolution
UD[would] be passed without the concurrence . . . of a majority of the
people . . . .
5But lawmaking by an unconstitutional
Administrative
Branch would allow
evasion
)0)of this Bicameral requirement.  If such a
Branch were to pass a law
+that the People did not approve, the People
UGwould be helpless, since not only would they not know who voted for the
!there would be no one to vote out
$, since Administrative officials are
U%appointed, not elected by the People.
"Furthermore, even if a counter-law
UIwere to be passed by the House of Representatives, that counter-law could
Hbe checked by the Senate, President, or Supreme Court
 the three checks
Lagainst popular action in the Constitution.  The same would be true were the
%Supreme Court given Legislative power
#.  Again, any attempt by the People
UFto check Judicial lawmaking[!] directly would itself be checked by the
MConstitutional 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
g1commission under which it is exercised, is void.
No legislative act,
g9therefore, contrary to the Constitution, can be valid.  T
o deny this,
gBwould be to affirm, that the deputy is greater than his principal;
Ethat 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.
g8But here was the dilemma: a Government must govern, and
UFconstitutionally crippled Government could not constitutionally govern
UAThus, a Bicameral Congress hobbled by an institutional delay was
forced
U,delegate its exclusive Legislative authority
.   W
ith the rise of industry in the
Hwentieth Century came a veritable explosion of Delegation of Legislative
UDauthority by Congress to such entities as the Federal Communications
?Commission, the Food and Drug Administration, the Environmental
Protection Agency
)d8, the Interstate Commerce Commission, the Securities and
UGExchange Commission, the Federal Trade Commission, the Internal Revenue
JService, the Occupational Safety and Health Administration
 the list goes
    Helvetica
Federalist 62
, p. 314 (Madison).
_The delegation of legislative power to unelected bodies, thus, creates an obvious violation  of
the People
),&s right to vote for their legislators.
Federalist 78
, p. 395 (Hamilton).
Times
+U1&on and on.  As Justice White noted in
I.N.S.
Chadha,
462 U.S. 919 (1983),
legislative authority is routinely delegated to the Executive Branch, to
Cthe independent regulatory agencies, and to private individuals and
groups.
;According to Justice White,
the effective functioning of a
UCcomplex modern government requires the delegation of vast authority
Swhich, by virtue of its breadth, is legislative or
quasi-legislative
 in character
. . . .
=And though it was the self-appointed umpire of constitutional
legitimacy
)5@, the Supreme Court nonetheless sanctioned this unconstitutional
U    process:
[T]he Court, recognizing that modern government must
UFaddress 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
U/restrictions began disappearing:
Theoretically
, agencies and officials were
U@asked only to
fill up the details,
 . . . [i]n practice however
, restrictions on
UEthe scope of the power that could be delegated diminished and all but
Jdisappeared.  In only two instances did the Court find an unconstitutional
delegation.
3Delegation mushroomed. Over time, Congress not only
U)forfeited its constitutional role as the
    exclusive
Legislative body
, but also the
primary
Legislative body
.  As Justice White observed,
gCThe wisdom and the constitutionality of these broad delegations are
Ematters 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 without the
Epassage of new legislation.  For some time, the sheer amount of law
Bthe substantive rules that regulate private conduct and direct the
6operation of government
 made by the agencies has far
<outnumbered the lawmaking engaged in by Congress through the
traditional process.
dIWhat are generally referred to as Administrative
regulations
rules
UHare, 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
U"regulation of the society . . . .
Justice White wrote that
gCThere is no question but that agency rulemaking is lawmaking in any
Hfunctional or realistic sense of the term.  The Administrative Procedure
EAct, 5 U.S.C.
 551(4), provides that a
 is an agency statement
designed to implement, interpret, or
prescribe
    or policy
  When
agencies are authorized to
prescribe
through substantive
    Helvetica
I.N.S.
Chadha,
984 (1983).
Chadha
at 989.
Chadha
at 999.
Chadha
at 985.
Chadha
at 985-86 (citations omitted).
Federalist 75
)3(, p. 380 (Hamilton) (emphasis supplied).
Times
rulemaking, the administrator
$s regulation is not only [given] due
g6deference, but is accorded
legislative effect
 . . .
These regulations
g@bind courts and officers of the Federal Government, may pre-empt
Astate law . . . and grant rights to and impose obligations on the
+public.  In sum, they have the force of law
g1Over time, a new Branch of Government was created
without the
UIbenefit of formal approval by the States or the People as required by the
Constitution in Article Five
1.  According to Justice Jackson,
The rise of the
ULadministrative bodies probably has been the most significant legal trend of
the last century
)V9. . . . They have become a veritable fourth branch of the
U@government, which has deranged our three-branch legal theories.
On this
U4road there was no terminus.  Justice Sutherland, in
United States
Curtiss-
right Export Corporation
*, 299 U.S. 304, 327 (1936),
used language
UEimplying that there is virtually no Constitutional limit to Congress
s power
UDto delegate to the President authority which is
cognate
 to his own
5constitutional powers.
. . . In brief, the President
s duty
to take care that the
UElaws be faithfully executed
 becomes often a power to make the laws.
UGAnd the Executive Branch did indeed exercise its newly granted power to
Fmake laws.  As Senator James Abourezk described the situation in 1975,
[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 branch than is produced by the
national legislature.
&According to Levitas and Brand (1984):
gB[I]f Thomas Jefferson, James Madison, or any of the other Founding
Fathers were to visit us today
$, they would be . . . shocked by the
g=existence of administrative agencies and by the delegation of
@lawmaking power to this part of the executive. . . . As noted 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
5might use a counterplane to conceal a disordered bed.
    Helvetica
Chadha
) 2at 985-86 (citations omitted) (emphasis supplied).
FTC v
. Ruberoid Co
., 343 U.S. 470, 487 (1952).
$The Constitution and What It Means T
pp. 194-5.
The American Political System
)~    , p. 269.
Congressional Review of Executive and Agency Actions after Chadha:
The Son of
Legislative V
)56eto
 Lives On,
 Elliot Levitas and Stanley Brand,  72
Georgetown Law Journal
810 (1984).
Times
+g@=Tugwell (1976) viewed the existence of the
fourth branch
UHGovernment as conclusive proof of the inadequacy of the Constitution, an
=inadequacy which made escape from the Constitution necessary:
D[B]ecause of its own incapacities . . . the Congress has created the
Eregulatory agencies.  They are justified by the implication that they
=are necessary to protect the public. They deny altogether the
Iprinciple of separation. . . . they carry on highly complicated technical
8operations and are largely self-governing. Their immense
Bbureaucracies constitute a large part of modern government.  Their
Fexistence is a constant reminder that escape from the Constitution has
Abeen accomplished on a grand scale and without notable objection.
gBBecause Congress had delegated its exclusive Legislative authority
U@popular backlash arose against Government bureaucracy in the 70
s, which
ULled to the increasing use of a device which would allow the People to regain
>control over the unconstitutional Fourth Branch, known as the
    one-house
Legislative V
3. Utilizing this provision, Congress could delegate
Legislative authority
)q1, but any law passed by one of the Administrative
UKbodies could be vetoed by either House of Congress.  Strictly speaking, the
Legislative V
)N3eto was unconstitutional, but Delegation itself was
unconstitutional, and the V
.eto attempted to restore some sort of balance.
Unfortunately for the
Democratic
)C(Congress, it decided exercise this power
over a
Republican
)D5Executive Branch.  This attempt by the Legislature to
UHcheck the Executive led the Executive Branch to look for a case it could
Csponsor for review by the Supreme Court, and hold the Legislative V
U8unconstitutional. The Executive Branch found the case
I.N.S.
Chadha.
BAnd, in one of its least shining hours, the Supreme Court held the
Legislative V
)E=eto unconstitutional (voiding nearly 200 laws utilizing the V
in one fell swoop
    ), while
at the same time
allowing the unconstitutional
Delegations to continue!
,The Supreme Court rejected the Legislative V
eto with this reasoning:
[T]he fact that a given law or procedure is efficient, convenient, and
Huseful in facilitating functions of government, standing alone, will not
Jsave it if it is contrary to the Constitution.  Convenience and efficiency
Aare not the primary objectives
 or the hallmarks
 of democratic
government . . . .
3The Court, after noting
the obvious flaws of delay
ULuntidiness, and potential for abuse
 in our constitutional structure, stated
    Helvetica
&The Compromising of the Constitution,
,Rexford Tugwell (Notre Dame: 1976 ), p. 167.
See the discussion in the book
)}4Chadha: The Story of an Epic Constitutional Struggle
U`Barbara Craig (Oxford University Press: 1988), and especially Chapter 6 (and pages 165 and 184).
Chadha
at 967.
Chadha
at 944.
Times
+g1B[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
)E7, inefficient, even unworkable, but . . . [t]here is no
g>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 . . . .
/et, in a textbook example of the Supreme Court
s selective attention,
UIthe Court failed to apply this same reasoning to the Delegation Doctrine!
HJustice White, dissenting, attacked this Judicial doublethink (reasoning
which
simultaneously
held that agency rulemaking
lawmaking
U#therefore a one-house Legislative V
violate the Bicameral
requirement
that agency rulemaking
was not
lawmaking
therefore
DID NOT
)68violate the Bicameral requirement!), and pointed out the
U,necessity of escaping from the Constitution:
=ithout the legislative veto, Congress is faced with a Hobson
gAchoice: either to refrain from delegating the necessary authority
gFleaving itself with a hopeless task of writing laws with the requisite
Dspecificity to cover endless special circumstances across the entire
Cpolicy landscape, or in the alternative, to abdicate its law-making
=function to the Executive Branch and independent agencies.  T
gCchoose the former leaves major national problems unresolved; to opt
Dfor the latter risks unaccountable policymaking by those not elected
to fill that role.
g!The battle over the Legislative V
%eto and the general acceptance of the
UFDelegation 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
UOdescribed, is
self-perpetuating.  Once a small commitment is made, it sets the
Kstage for ever-increasing commitments.  The behavior needs to be justified,
Nso attitudes are changed; this change in attitudes influences future decisions
and behavior
:And escalation has indeed occurred in the political arena.
According to Justice White,
From the summer of 1787 to the present the
UEGovernment of the United States has become an endeavor far beyond the
contemplation of the Framers.
Aronson
self-perpetuating
 insight
UEexplains this
 people are likely to accept the political status quo
simply
because
they accepted the status quo
before
.  The tendency to accept the
UJaccepted is accompanied by the quiescent emergence of rules.  New laws are
    Helvetica
Chadha
at 959.
Chadha
at 968.
The Social Animal,
)R4Elliot Aronson, 3rd Edition (Freeman: 1980), p. 114.
Chadha
at 978.
Times
+U1Fformed.  New interpretations are made.  New actions are taken. In this
manner
)&9, where a Government is allowed to
evolve,
 a Government
U/entirely different from the one first conceived
can be established.
gBThe Framers of our Constitution were well aware of this Escalation
U<Principle.  As Edmund Randolph wrote to the Speaker of the V
irginia House
UEof Delegates on October 10, 1787,
. . . a bad feature in government,
%becomes more and more fixed every day
Madison stated in
Federalist
)=@that
abuses . . . of long standing, would [take] deep root, and
U would not easily be extirpated,
"and warned that these abuses would
provide
precedents
);3, each one of which would be
a germ of unnecessary
and multiplied repetitions.
%Thus, these abuses or
usurpations of
power
Bwould be
but the first link of a long chain of repetitions, every
UFsubsequent interference being naturally produced by the effects of the
preceding.
7Hamilton warned that if
an improper spirit of any kind
U$should happen to prevail
 in society
that spirit would be apt to infuse
UJitself into the new members, as they come forward in succession.  The mass
Pwould be likely to remain nearly the same, assimilating constantly to itself its
gradual accretions.
*Hamilton reiterated the
 metaphor of
UIMadison:
[t]here is a contagion in example which few men have sufficient
force of mind to resist.
gGThis ability to surreptitiously change the nature of Government through
UGescalation meant that Government would not only shift the allocation of
Fpowers through Delegation, but would also gradually assume new powers,
Hpowers not accounted for when the terms of office of our representatives
Band our system of Checks and Balances was established.  Due to the
JPrinciple of Escalation, people have grown used to usurpations of power by
'the Government.  Whether the issue is P
AC money
, the shift of Legislative
U@power from Congress to the Presidency and the Supreme Court, the
KIncumbency Effect, or even unpalatable societal developments like the ever-
Hincreasing National Debt, we have become inured to regression.  And each
Jacceptance of a small digression from the norm has laid the foundation for
Kour acceptance of future digressions, leading to the emergence of new rules
and, ultimately
, a new form of Government.
    Helvetica
Records
Federalist 50
, p. 259 (Madison).
Federalist 41
, p. 204 (Madison).
Federalist 41
, p. 204 (Madison).
Federalist 44
, p. 227 (Madison).
Federalist 61
, p. 311 (Hamilton).
Federalist 61
, p. 311 (Hamilton)
Times
THE EMPIRICAL CONSTITUTION
=I consider the foundation of the Constitution as laid on this
9ground: that
all powers not delegated to the U.S. by the
EConstitution, not prohibited by it to the states, are reserved to the
 states or to the people
 . . . T
o take a single step beyond the
g>boundaries thus specially drawn around the powers of Congress,
3is to take possession of a boundless field of power
, no longer
susceptible of any definition.
 Thomas Jefferson, 1791
gC[I]t exceeds the possibility of belief, that the known advocates in
;the Convention for a jealous grant & cautious definition of
Bfederal powers, should have silently permitted the introduction of
Bwords or phrases in a sense rendering fruitless the restrictions &
definitions elaborated by them.
6Consider . . . the immeasurable difference between the
gAConstitution limited in its powers to the enumerated objects; and
Aexpanded as it would by the import claimed for the phraseology in
    question.
):#The difference is equivalent to two
Constitutions
g:characters essentially contrasted with each other; the one
@possessing powers confined to certain specified cases; the other
(extended to all cases whatsoever . . . .
 James Madison, 1830
g=The Constitution was evaded not only because of institutional
inefficiency
)==, but because a strict reading of the Constitution would have
U$crippled the Government.  Jefferson
)s view of a limited Constitution (i.e., a
UBConstitution that allowed the Federal Government to pass laws in a
Jparticular area only if the power was explicitly granted) was shattered by
Chief Justice John Marshall in
    McCulloch
Maryland
, 4 Wheat 316 (1819).
U*As Marshall stated in that famous opinion:
=e admit, as all must admit, that the powers of the government
gBare limited, and that its limits are not to be transcended. But we
Bthink the sound construction of the constitution must allow to the
Bnational legislature that discretion, with respect to the means by
Cwhich the powers it confers are to be carried into execution, which
Cwill enable that body to perform the high duties assigned to it, in
8the manner most beneficial to the people. Let the end be
    Helvetica
Opinion on the Constitutionality of the Bill for Establishing a National Bank,
 Thomas
U Jefferson, February 15, 1791, 3
Founders' Constitution
DLetter from James Madison to Andrew Stevenson, November 17, 1830, 3
Records
(emphasis supplied)
Times
+g1Clegitimate, let it be within the scope of the constitution, and all
>means which are appropriate, which are plainly adapted to that
Eend, 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
Hunequal to the object for which it is declared to be instituted . . . .
UJview was extremely controversial.  As James Madison stated (with reference
Hto the
Necessary and Proper
 Clause in Article One, Section Eight), the
2Government could only be given new powers through
    amendment
, not
U"through Judicial interpretation:
&Whatever meaning this clause may have,
U@none can be admitted, that would give an unlimited discretion to
DCongress. . . . Had the power of making treaties . . . been omitted,
Ehowever necessary it might have been, the defect could only have been
3. . . supplied by an amendment to the constitution.
But  Hamilton,
Madison
)3=s contemporary and a fellow Federalist, argued against narrow
UEinterpretation, 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
g*are as effectually delegated as the latter
. . . .
t9The whole turn of the [necessary and proper] clause . . .
gDindicates that it was the intent of the convention by that clause to
Fgive 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.
gDBut Andrew Jackson stated (many years later) that there were natural
UDlimits to the Necessary and Proper Clause
 for example, Delegation:
can not be
)B    necessary
proper
 for Congress to barter away or divest
UHthemselves 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
U    ignored.
FJames Madison, writing in 1819, could see the handwriting on the wall,
UIand argued vehemently that if such a broad interpretation were given, the
 Constitution would not have been
ratified
g<[W]hat is of most importance is the high sanction given to a
    Helvetica
Founders' Constitution
Founders' Constitution
497-98.
The Bank Bill,
 James Madison, House of Representatives, February 2, 1791,
Founders' Constitution
Opinion on the Constitutionality of the Bank,
 Alexander Hamilton, February 23, 1791,
Founders' Constitution
248-50.
 eto Message,
 July 10, 1832,  3
Founders' Constitution
Times
+g1<latitude in expounding the Constitution which seems to break
?down the landmarks intended by a specification of the Powers of
Congress . . .
B[I]t was anticipated I believe by few if any of the friends of the
g@Constitution, that a rule of construction would be introduced as
Abroad & as pliant as what has occurred.  And those who recollect,
;and still more those who shared in what passed in the State
CConventions, thro
 which the people ratified the Constitution, with
>respect to the extent of the powers vested in Congress, cannot
Aeasily be persuaded that the avowal of such a rule would not have
prevented its ratification
g?According to Madison, broad interpretation would eviscerate the
U"concept of a written constitution:
BIt has been the misfortune, if not the reproach, of other nations,
Cthat their Govt
s have not been freely and deliberately established
Eby themselves.  It is the boast of ours that such has been its source
;and that it can be altered by the same authority only which
Destablished it.  It is a further boast that a regular mode of making
7proper alterations has been providently inserted in the
FConstitution itself.  It is anxiously to be wished, therefore, that no
@innovations may take place in other modes, one of which would be
Aa constructive assumption of powers never meant to be granted. If
Dthe powers be deficient, the legitimate source of additional ones is
/always open, and ought to be resorted to. . . .
gFThis opinion was in line with the views of Jefferson, who had rejected
U3the road of broad construction, on similar grounds:
AWhen an instrument admits of two constructions, the one safe, the
Eother dangerous, the one precise, the other indefinite, I prefer that
>which is safe and precise.  I had rather ask an enlargement of
1power from the nation where it is found necessary
, than to assume
g;it by a construction which would make our powers boundless.
AOur peculiar security is in possession of a written constitution.
1Let us not make it a blank paper by construction.
It was not to be, however
.  As Marshall and Hamilton saw
, Government
U@could not govern in a growing society under a narrowly construed
Constitution.  Consequently
, as Tugwell (1976) noted,
    Helvetica
;Letter from James Madison to Spencer Roane, Sept. 2, 1819,
Founders' Constitution
Founders' Constitution
$The Compromising of the Constitution
%, p. 75 (Letter from Thomas Jefferson
to Senator Nicholas of V
irginia).
Times
+g1*[A]t the very beginning of the government
s operations the
gJConstitution began to unfold . . . it was in these earliest years that the
@compromising began and the Constitution began to soften and lose
its sharp outlines. . . .
AOnce strict construction was abandoned, the limits of implication
g1depended on what powers could be seized and kept.
And this continued over time:
AThe Constitution, as a product of [Supreme] Court interpretation,
>became more and more ambiguous.  What had begun in the nation
g>very administration was relied on more as the years passed and
=extrapolations became more numerous.  Because they were never
Gcertainly permanent, the nation found itself living with a basic law it
3revered but could neither understand nor depend on.
dBOver time, the Supreme Court developed a body of
 through the
doctrine of
stare decisis
.  Under the policy of
stare decisis
the decision
UIstands
), law was established by the Judiciary through the observation of
their prior decisions as
precedents
 Judicial determinations that had to be
UHobeyed as if they were laws.  This, of course, directly contradicted the
"provision in Article Six that the
Constitution
(and not the opinions of the
UCSupreme Court) was the
supreme Law of the Land.
  But, as with the
 expansion of Congressional power
", there were pragmatic reasons for
accepting the doctrine of
stare decisis
)I (and thus expanding the power of
U@the Judiciary).  According to Chief Justice Stone,
the rule of
stare decisis
ULembodies a wise policy because 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
UDby ambiguity and the exceedingly difficult process of constitutional
Iamendment contained in Article Five by recognizing its prior decisions as
Hprecedents, even though those precedents may themselves not have been in
Iline with the written text of the Constitution.  This phenomenon, however
U4was not intended by the Framers of our Constitution:
DWhat [the Framers] did not foresee is that because of this provision
E[Article Three, Section One:
The judicial power of the United States
Eshall be vested in one supreme court . . .
], in conjunction with the
=extremely difficult arrangements they set up for amending the
BConstitution, the federal courts would sometimes pervert and abuse
Dthis power and would in effect write legislation of their own.  What
Cthey foresaw still less was that because the members of the Supreme
    Helvetica
$The Compromising of the Constitution
, p. 72.
$The Compromising of the Constitution
    , p. 107.
U.S.
Underwriters Assn.
)L1, 322 U.S. 533, 579 (1944) (Chief Justice Stone).
Times
+g1CCourt as well as of other federal courts owed their appointments to
Dthe President and the Senate, they would be creatures of the central
Bgovernment; and therefore their
interpretations,
 over the years,
Dwould steadily tend toward the aggrandizement of centralized federal
-power at the expense of states
 rights. The T
enth Amendment, in fact,
gBhas long been treated by the Supreme Court as if it did not exist.
g?Brennan (1982) rejected the notion that the Supreme Court could
UAlegitimately either implement or ratify constitutional revisions:
DIf indeed, courts may appropriately
apply values not articulated in
Dthe constitutional text
; if they are to act as
expounders of basic
Gnational ideals of individual liberty and fair treatment, even when the
<context of those ideas is not expressed . . . in the written
KConstitution,
 . . . then it is literally true . . . that the Supreme Court
Hexercises veto power over the actions of state legislatures, executives,
Cand judiciaries, and that the Court is
a continuing constitutional
Aconvention, updating the meaning of the Constitution as new times
"and new situations demand . . . .
gCIndeed, the Supreme Court, in ratifying the usurpations of power by
Branches of Government,
*functioned as a
continuing constitutional
convention
There are those who hold that
"the American Constitution is not a
gEwritten 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
)A , the Constitution is considered
gCcoextensive with the governing Establishment.  It is the way things
$are. It is the distribution of power
, as it actually exists and is
g0effectively exercised in modern American society
This might be
termed the
empirical constitution
. . . .
t?It may be that every written code or constitution is eventually
g.eroded by conflicting customs.  It is, however
, peculiar to the
gBAmerican experience that disregard and diminishment of our written
/Constitution has been a work of great sophistry
, combined with an
g.incongruous deference to the original text.  W
e have paid lip service
g.to the immutable words of the Constitution.  W
e have demonstrated
gBgreat resistance to constitutional amendments proposed through the
"processes established by Article V
$.  At the same time, our courts have
g;shown blithe disregard for the intent of the authors of the
@Constitution and the obvious purposes and understanding of those
    Helvetica
A New Constitution Now
7Henry Hazlitt, 2nd Edition (Arlington: 1974), pp. 31-2.
Return to Philadelphia,
 Thomas Brennan, 1
Cooley Law Review
1, 35 (1982)  (footnotes
U    omitted).
Times
+g1Bwho ratified the Constitution, whenever it has seemed practical or
expedient to do so.
g)As Former Chief Justice Hughes stated,
e are under a Constitution,
U3but the Constitution is what the judges say it is.
This was confirmed by
the authors of
)O$The Constitution and What It Means T
, who noted that
UEthere has been an
enormous change in the meaning of the Constitution
Mover the last twenty years.  One does not fully appreciate the full impact of
Hthat change until he goes over the Constitution provision by provision.
U&This would not have surprised Robert Y
ates, one of the Framers of our
UKConstitution who later wrote essays against its ratification.  According to
 historian Jackson Turner Main, Y
ates observed in 1788 that
gC[M]ost of the powers [of the Constitution] were granted
in general
Eand indefinite terms, which are either equivocal, ambiguous, or which
Erequire long definitions to unfold the extent of their meaning.
  The
Bmeaning of the Constitution would be decided by the Supreme Court,
Aand therefore the judges could
mould the government, into almost
any shape they please.
Jague language gave the green light for Judicial constitutional revision, a
UCphenomenon which appeared early on in our Republic, as predicted by
Mates.  The Supreme Court, the final link in the constitutional chain, granted
UJitself the power of exclusive constitutional
interpretation,
 even though
IJefferson had vehemently argued against the power of the Supreme Court to
exclusively
)A:interpret the Constitution
 a power which goes far beyond
our traditional conception of
Judicial Review
as the power to declare laws
U(unconstitutional.   As Jefferson wrote,
>In denying the right they [the Judiciary] usurp of exclusively
Fexplaining the constitution, I go further than you do, if I understand
 rightly your quotation from the
Federalist
, of an opinion that
Judiciary is the last resort
in relation
to the other departments of
the government
] . . .
)&,if this opinion be sound, then indeed is our
constitution a complete
felo de se
[a suicide].
For intending to
gCestablish three departments, co-ordinate and independent, that they
#might check and balance one another
!, it has given, according to this
gCopinion, to one of them alone, the right to prescribe rules for the
Dgovernment of the others, and to that one too, which is unelected by
g%and independent of the nation. . . .
The constitution, on this
g@hypothesis, is a mere thing of wax in the hands of the Judiciary
    Helvetica
Cooley Law Review
1, 35-6 (footnotes omitted).
$The Constitution and What It Means T
, p. xiii.
$The Constitution and What It Means T
    , p. vii.
The Anti-Federalists
)Q0, Jackson Turner Main (Norton: 1974), pp. 125-6.
Times
+g2:which they may twist, and shape into any form they please.
gEIn point of fact, the Constitution has indeed become a
mere thing of
U!wax in the hands of the Judiciary
 as the Supreme Court has actually
U    rewritten
)8>provisions of the Constitution by construction, and created an
UIEmpirical Constitution
 that is, the constitution we actually live under
U4opposed to the one contained in that glass case in W
ashington, D.C.
UCtake one of hundreds of examples, the Court has stated on different
Poccasions that the provision
The trial of all crimes . . . shall be by jury
GArticle Three of the Constitution (and a similar provision in the Sixth
Amendment)
really
means
The trial of all
serious
crimes . . . shall be by
 The Judicial Branch, of course, is to be the arbiter of what
U?distinguishes
serious
 from
petty
 crimes. In one of the rare
Eacknowledgments by the Court of the extent to which they have revised
Lthe Constitution by construction, Justices Black and Douglas stated in their
concurrence in
Baldwin
New Y
, 399 U.S. 66 (1969) that
g@Many years ago this Court, without the necessity of an amendment
pursuant to Article V
)z-, decided that
all crimes
 did not mean
g-crimes,
 but meant only
all serious crimes.
oday three members
g?of the Court would judicially amend that judicial amendment and
>substitute the phrase
all crimes in which punishment for more
!than six months is authorized.
%This definition of
serious
 would be
g;enacted even though those members themselves recognize that
<imprisonment for less than six months may still have serious
Bconsequences.  This decision is reached by weighing the advantages
@to the defendant against the administrative inconvenience to the
FState inherent in a jury trial and magically concluding that the scale
#tips at six months
  imprisonment.
!Such constitutional adjudication,
gBwhether framed in terms of
fundamental fairness,
balancing,
shocking the conscience,
 amounts in every case to little more
5than judicial mutilation of our written Constitution.
    Those who
g?wrote and adopted our Constitution engaged in all the balancing
    necessary
)3=.  They decided that the value of a jury trial far outweighed
gLits costs for
all crimes
 and
[i]n all criminal prosecutions.
  Until that
@language is changed by the constitutionally prescribed method of
Bamendment, I cannot agree that this Court can reassess the balance
8and substitute its own judgment for that embodied in the
Constitution.
    Helvetica
@Letter from Thomas Jefferson to Spencer Roane, Sept. 6, 1819, 3
Founders' Constitution
Baldwin
at 74-5.
Times
+g1HA rare admission.  But every term of the Court brings new changes to our
Constitution.
(In a remarkable piece of scholarship, Dr
. Thomas Ladanyi
U9bravely attempted to reduce to writing the Supreme Court
s constitutional
rewrites in his book
The 1987 Constitution
.  The
Baldwin
decision explains
in part Ladanyi
)`1s version of the Sixth Amendment of the Empirical
U>Constitution, which begins as follows:
In all prosecution of
serious
crimes,
U)subject to sentences exceeding six months
. . .
, replacing the original,
which simply states
!criminal prosecutions . . . .
e have previously
UHnoted the Delegation Doctrine.  The 1787 Constitution reads as follows:
    Helvetica
\Here are some of the differences between the Written and Empirical Constitution, as authored
U!or condoned by the Supreme Court:
0The Written Constitution
7The Empirical Constitution
%legislative power vested in Congress.
Some
%legislative power vested in Congress.
crimes tried by jury
Some
crimes tried by jury
'Congressional laws against free speech.
.Laws against speech permitted if they serve a
compelling interest.
&Congress creates rules for the Supreme
(The Supreme Court creates its own rules,
Court.
depending on the circumstances.
Congress must declare war
"The President can conduct
covert
operations.
(Treaties must be ratified by the Senate.
+Treaties called
executive agreements
 need
not be ratified by the Senate.
Minors and military personnel
Minors and military personnel
citizens.
are not
citizens.
No two-party system.
wo-party system is permissible.
$20 jury trial requirement.
$10,000 jury trial requirement.
ex post facto
laws.
criminal ex post facto
laws.
)wo-year limit on military appropriations.
Five-year limit.
Exclusive copyright.
Fair use
 allowed.
(People have right to petition government
%People have right if courts allow it.
for a redress of grievances.
*Bill of Rights other than First Amendment
*Bill of Rights applies to States only when
applies to states.
Supreme Court says so.
)Congress must publish all appropriations.
-Congress need not publish all appropriations.
Federal powers limited.
Federal powers broad.
Times
+g1:All legislative Powers herein granted shall be vested in a
BCongress of the United States, which shall consist of a Senate and
House of Representatives.
EShort, sweet, and to the point.  But the Empirical Constitution reads
somewhat differently
)s2, after the various Delegations of power have been
factored in:
AThe Congress of the United States, which consists of a Senate and
Ba House of Representatives, possesses all legislative power herein
Cgranted, with the exception of the following, all of which may have
:the same force and effect as a law directly adopted by the
DCongress: international treaties initiated by the President, subject
=to approval by the Senate and executive agreements with other
6sovereign states entered into by the President without
<Congressional approval, both relating solely to the external
Bconcerns of the Union;  executive orders and regulations issued by
9the administrative bodies and regulatory agencies validly
Acreated, and the scope of which is properly within the Congress
Bauthority to delegate; the exercise of war powers by the President
7as Commander-in-Chief; final judgments of courts of law
@concerning the interpretation of all laws, treaties, agreements,
Eorders, rules, regulations and other acts dealt with in this section;
Aand the Supreme Court
s final determinations, in the light of the
Gdictates and the spirit of this Constitution, as to the validity of all
Dof 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 itself with their
:powers, being one of the three co-ordinate Branches of the
ANational Government, in carrying out its legislative functions it
!shall, where proper and necessary
, cooperate with, and, on a
gAmutual basis, provide assistance to the other two Branches.  Such
?cooperation and mutual assistance may include narrowly defined,
Cessential, convenient and fully revocable delegation of some of its
legislative powers.
gENote one of the main failings of Supreme Court re-writes.  While some
U,Court decisions have held that Congress may
delegate its powers, the
U:majority have. This inconsistency is reflected in Ladanyi
s reduction of the
UFEmpirical Constitution on the Delegation issue (may not vs. may).  The
JSupreme Court is not only poorly equipped to redraft the Constitution, but
Itheir method of operation guarantees an inconsistency which renders their
 re-writes permanently ambiguous.
HOf course, it is not only Congress which has had its powers revised.  As
    Helvetica
The 1987 Constitution
, pp. 5-6.
Times
Hazlitt (1942) noted,
?An American President, it is now generally agreed, has too many
@powers, some of them grossly excessive.  He has them principally
Cbecause the federal government itself has assumed excessive powers,
?and because Congress, unable or unwilling to issue thousands of
Gregulations 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.
gAThe new powers of the President are dramatically revealed when we
UJcontrast the 1787 Constitution with the Empirical Constitution.  Article T
U    Section T
wo, Clause T
)C-wo of the 1787 Constitution reads as follows:
He shall have Power
)v+, by and with the Advice and Consent of the
Senate, to make T
)m,reaties, provided two thirds of the Senators
g:present concur; and he shall nominate, and by and with the
<Advice and Consent of the Senate, shall appoint Ambassadors,
@other public 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
g8established by Law: but the Congress may by Law vest the
;Appointment of such inferior Officers, as they think proper
, in the
g%President alone, in the Courts of Law
, or in the Heads of
Departments.
But Article T
wo, Section T
wo, Clause T
)E wo of the Empirical Constitution
U-is an animal of an entirely different stripe:
He shall have the power
(, by and with the advice and consent, or
g<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
>violative of fundamental individual rights granted herein, but
=other Constitutional and States rights may be affected in the
Cnational interest if no feasible alternative solution is available.
?He may optionally effect treaty aims by entering into executive
;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
Dtreaties, 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
Bshall be effectuated at the discretion of the Congress.  Claims of
    Helvetica
A New Constitution Now
, 2nd Edition, p. 26.
Times
+g1Cforeign sovereigns, individuals or other entities arising under the
@terms of treaties and executive agreements shall be resolved, as
6their nature require, by the President, the courts, or
, where
gBlegislative implementation or funds are required, by the Congress.
AThe 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.  T
reaties and executive
g;agreements shall terminate by their terms, renegotiation or
=denunciation by the President, or alteration or repeal by the
>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
8and consuls, justices of the Supreme Court, secretaries,
7undersecretaries 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
Eof 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,
Aconsisting of inferior officers subordinate to heads of executive
@departments and offices, chiefs of federal courts, and judges of
>federal courts 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
)J5, or the heads of executive departments as well.  All
g<his non-judicial appointees, including those approved by the
ASenate, or whose dismissal is expressly constrained by it, may be
Aremoved by the President at will, but non-judicial members of the
Bcivil service can only be dismissed for good cause, while judicial
>appointees must be terminated by impeachment. . . . In matters
?concerning presidential communications relating to the exercise
of executive authority
%, an incumbent President shall not be
g=compelled by the co-equal Branches of the National Government
>to testify before them or to reveal the contents of his or his
Aexecutive 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
Atheir 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
gAmatters, the presumption in favor of protecting the privilege may
?challenged, and, considered in camera in court, be rebutted, in
Times
+g1Aorder to obtain essential evidence in a criminal investigation or
=trial.  An incumbent or former President shall be immune from
>tort claims for damages arising from his exercise of executive
powers.
g$The Judicial Branch, needless to say
#, has also greatly expanded its own
U!powers.  Article Three, Section T
"wo, Clause One, originally twelve
lines
occupies three
pages
in Ladanyi
)=-s book, and is too long to reprint here.  But
UFsome of the flavor of the changes to that provision may be seen in the
<changes to the Preamble found in the Empirical Constitution:
Be the Justices of the Supreme Court of the United States, in order
g?to maintain and strengthen the Union, redraw the jurisdictional
Clines among the legislative, executive and judicial Branches of the
ANational 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
g8Justice, preserve and assure the maintenance of Domestic
ranquility
)83, facilitate the Common Defense, promote and expand
the General W
)R3elfare, broaden and secure the Blessings of Liberty
gCand 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
Aerritories, living in drastically changed material circumstances,
gCpossessed of altered and more varied ideological, social, political
;and cultural values, and their Union being part of a vastly
Ddifferent world,  do ordain that the 1787 Constitution of the United
4States 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
)>4, and that such interpretations be recognized as the
g>Supreme Law of the Land and be applied with the same authority
gBforce and effect as the 1787 Constitution, as amended, has come to
%have in the years since its adoption.
Amend the Constitution?
Constitution?
Which
Constitution?   As
UETugwell (1976) stated,
The pretense that a body of agreed higher law
'exists is a kind of national conspiracy
 , maintained because of need.  A
UNConstitution is necessary to the American system.  That it no longer exists is
an intolerable thought.
    Helvetica
The 1987 Constitution
, pp. 35-37.
The 1987 Constitution
)\1, pp. 4-5 (word
 omitted before
do ordain
$The Compromising of the Constitution
p. 108.
Times
+g3)THE OBSOLESCENCE OF THE 1787 CONSTITUTION
Ao have anticipated the country
s condition in the 1880
s from the
g?situation in the 1780
s would have required something more than
3foresight.  The Framers would have had to be seers.
 Rexford Tugwell,
The Compromising of
the Constitution
gHThe existence of the Empirical Constitution is irrefutable evidence that
UJthe Constitution as framed in 1787 is no longer relevant for modern times:
-The Constitution . . . has, to put it plainly
, become in many respects
gHobsolete.  The succeeding generations still living within its directives
Care confronted with conditions radically different from those known
Eto the original framers.  The arguments it emerged from are no longer
Brelevant and its governance of the nation has become more mystical
than real. . . .
CDoes anyone believe that if the Constitution in its entirety should
be submitted to referendum now
, and relieved somehow of its
traditional sanctity
)f-, it would be ratified?  If it would not, and
g?constitutional government is desirable, then it follows that an
$acceptable one ought to be devised.
This simple logic seems
gJirrefutable; actually it is universally evaded. It is even widely regarded
+as reprehensible to make such a suggestion.
gABut reason must prevail.  Brennan (1982), quoting Chief Justice W
arren
Burger
, observed that
[W]e should examine the changes which have occurred over two
Gcenturies and ask ourselves whether they are faithful to the spirit and
Fthe 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
g expanded to the size of George W
ashington
s army
. . . . Constituent
g@services, committee work, and management of administrative staff
Dhave all grown in importance, dwarfing the parliamentary function of
Bcongressmen and senators.  At the same time, because of the growth
Fof our population from three million to nearly a quarter billion, each
@congressman and senator must represent vastly more citizens than
Foriginally intended.  The corollary of that proposition, of course, is
Ethat each citizen is vastly more remote from the national legislature
@than Madison and Hamilton assumed would be the case.  The volume
    Helvetica
$The Compromising of the Constitution
p. 153.
$The Compromising of the Constitution
, pp. 6-7.
Times
+g1Aof congressional business is so great that members are physically
<unable to read all the bills they are expected to vote upon.
gEBrennan pointed out further inadequacies, such as the obsolescence of
U4the $20 guidepost in the civil jury trial provision:
.Jury trials are assured in suits at common law
, but there are no suits at
gCcommon law within the Federal Judicial System anymore.  Jury trials
?are assured where the value in controversy exceeds $20.00.  The
Bjurisdictional minimum in diversity cases in Federal courts is now
C$10,000.  Modern state constitutions have substantially altered the
Icommon law concept of civil jury trials.  In England, jury trial in civil
!cases has all but disappeared.  W
&ith civil litigation mounting, dockets
g0burgeoning, delay piling upon exasperating delay
, modern court
g=systems seek new methods of dispute resolution which can more
;adequately serve the needs of 20th and 21st century society
. . . .
g?One of the more dangerous obsolescences is the inability of the
UHConstitution to prevent the existence of the military-industrial complex
DPresident Eisenhower had warned against in his Farewell Address. The
4Framers feared standing armies, and for good reason:
9Whatever the two year limit on army appropriations may be
understood to mean in W
,ashington, D.C. in 1982, it does not seem to
gGhave any restraining force with respect either to appropriations or the
Braising and supporting of armies.  Certainly the Pentagon would be
Dstunned to hear that congressional expenditures for land forces were
?circumscribed by a term limitation which did not apply to naval
forces.
9ith the technological advancements which have changed the
g?entire concept of national defense, the necessity of long range
Eplanning, and the commitment of resources over substantial periods of
9time are commonly accepted.  But the argument from modern
Anecessity 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
et seq
) $. describing the process of military
gAprocurement.
The head of an agency may enter into contracts for
Iperiods of not more than five years. . . .
  Detailed citation should not
>be necessary to support the proposition that American military
Gexpenditures are substantial; that vast standing armies are maintained;
;that appropriations are made for the purpose of raising and
    Helvetica
Cooley Law Review
1, 44.
Cooley Law Review
1, 52.
Times
+g1;supporting armies for longer periods than two years. . . .
'The point need not be belabored further
.  The founders had a real
gEdistrust 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
Adiscountenance them by the Constitution.
  Since the second world
:, the United States has continuously maintained a military
gFestablishment consisting of more than three million persons, of which,
Ain 1978, 757,000 were members of the United States army on active
B.  The air force accounted for an additional 567,000.  It is clear
gAthat forces of this magnitude cannot be maintained, equipped, and
(supplied with short term appropriations.
    Obviously
)6/, the language which Madison and his colleagues
gHinserted in the Constitution is no longer operating.  It is simply being
ignored by the government in W
!ashington.  Doubtless, no one now
g?would argue with much enthusiasm for the enforcement of the two
Fyear limitation.  But a limitation ignored is no limitation at all.  W
gDpermit our only constitutional protection against standing armies to
Gbe 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
Gconstitutional 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
gDwe think the two year appropriation limit too stringent, we ought to
Dremove it, before some elected officials come along and endanger our
9security by the innocent act of obeying the Constitution.
gHBrennan then cited some of the many areas requiring revision, and called
for action.
KJury trials; standing armies; disqualifications for office; these are but a
Bfew 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
gDomits many things which could easily be included, if the document is
<to serve our generation and those to come as aptly as it was
Dconceived to serve those who went before us.  There is no call to be
Gshy or timid.  Surely after 200 years, we are not premature to consider
-amendments.  If anything, we may be too late.
Brennan
)2+s final question is a very important one
we too late?
    Helvetica
Cooley Law Review
1, 56-8.
Cooley Law Review
1, 58.
Times
THE END OF THE LINE
@The most visible example of our constitutional inadequacy is the
UJburgeoning National Debt, which threatens to obliterate our economy either
 (crash) or
whimper
 (foreign ownership).  As
The W
all Street
Journal
reported, since 1980
gA[A]ll debt outstanding
 governmental, business, and individual
Ahas swelled to nearly $11 trillion from less than $4 trillion.  T
gCtotal
 close to $43,000 for each man, woman, and child in the U.S.
 exceeds 1.9 times the gross national product, up from 1.7 in the
Dmid 1980s.  In the 1950s, 1960s and 1970s, debt ranged only from 1.2
to 1.4 times GNP
)Z4.  Just since 1989, the debt load has mounted nearly
$2 trillion. . . .
=The federal budget
is out of control
 says Charles B. Reeder
economic consultant in W
#ilmington, Del., who isn
t given to
g7hyperbole.  The deficits
will be a drag on the economy
 he predicts,
gDsince
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.,
g%worries especially about the deficit
s impact on saving and
investment.
The more W
%ashington borrows, the lower national
gBsaving will be,
 he warns.
Low saving equals low investment.  In
Bturn, low investment will lead to slow growth and a decline in the
IU.S. standard of living relative to other nations, particularly Japan and
Germany
 . . .
tCAs recently as 1984, state and local governments, taken as a whole,
gDsported an operating-budget surplus of about $20 billion.  Last year
gCin sorry contrast, they sustained a record operating deficit of $34
Ebillion, and many forecasters anticipate still deeper state and local
deficits in the year ahead.
>o help make up the shortfall, 20 to 30 states plan
major
gAincreases in the year ahead, according to the National Center for
EPolicy Analysis. This would tend to worsen the federal deficit, since
Estate and local taxes are largely deductible from federal taxes.  The
Dupshot will be
leaner and meaner
 not gentler and kinder
 times,
!forecasts Laurence B. Rossbach Jr
., and analyst at Smith Barney
Harris Upham & Co.
gGThis crisis has been brewing for three decades.  In fact, 32 States had
UIpetitioned Congress for a Constitutional Convention for a Balanced Budget
AAmendment by 1987.  As the Grace Commission reported in 1984, the
Dproblem of inefficiency in Government required
immediate attention.
    Helvetica
The W
all Street Journal
, September 18, 1991, p. A-16.
Times
+U1B[Opportunities to make Government more efficient] are dependent on
Linstitutional changes to bring about long-term improvement.  If the problems
Hidentified are left uncorrected, they can only deteriorate and result in
opportunities lost,
 leading to the loss of national vitality and the erosion of
freedoms.
gIBut in the face of this pressing concern, all Congress could manage to do
UKwas pass the ineffectual Gramm-Rudman bill, the most significant portion of
5which was found unconstitutional by the Supreme Court
, and thus
UMeviscerated (the Separation of Powers Principle in action).  Deprived of even
this abortive band-aid remedy
0, deficits swelled to new heights: a record $360
UObillion in 1992 alone.  Freed of any form of structural restraint, Congress was
Ifree to be collectively irresponsible, an irresponsibility which
is most
Fevident when members express concern over mounting deficits and growth
Jof government but insist on funding programs that benefit their individual
constituencies . . . .
4ivid evidence of this irresponsibility was displayed
UCon the floor of the House of Representatives on October 3, 1991, as
DRepresentative Dan Burton (R-IN) argued vainly for fiscal restraint:
EIn this bill we have a ton of pork barrel projects, and I am going to
Fhave other amendments to cut them out.  The fact of the matter is that
DI 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
Fpassed, and that is why I get so frustrated.  Members know it is pork,
Band I know it is pork, but nobody is doing anything about it.  The
6reason that happens is that so many of us in this body
, and in the
other body
)=8, continue to ask for special pork barrel projects.  One
gAsubcommittee of the Appropriations Committee in this body had 385
BMembers ask for over 3,000 special projects.  Where is it going to
CAs I said before, I know that I am now jousting with windmills, and
gEI know I am just a voice in the wilderness here, but I am telling the
3Members that we had better do something about it. W
e are
gCmortgaging the future of our kinds, and we are headed for financial
Gdisaster at some point in the future.  I do not know where that is, but
it is going to happen.  W
(e cannot continue to spend $300 billion,
gE$400 billion, or $500 billion more per year than we take in and incur
Cthe kind of debt we have, a $4 trillion national debt, without some
Ekind of disaster occurring in the future.  And we are all going to be
responsible.
g4Individually responsible, perhaps, but collectively
irresponsible
.  The
UJvote was 252 to 162 in favor of the Appropriations
 once again, a failure
    Helvetica
ar on W
,, Grace Commission, p. 25 (MacMillan: 1984).
Bowsher
Synar
, 478 U.S. 714 (1986).
The Constitution Under Pressure
    , p. 127.
Congressional Record,
October 3, 1991,
)G)H7344 (Representative Dan Burton (R-IN)).
Times
+U1Kto act in the face of a necessity for action, but a mere detail in a tragic
GShakespearian determinism parading before our eyes
 the working-out of
?this self-defeating Clockwork Orange known as the United States
Government.
KThis failure of our Government to act in the face of a necessity for action
UCengenders a feeling of helplessness within the populace
 even more
incredibly
, some people simply become
bored
with these important issues.
UHHow many times can a person request action on an issue and get no result
1without either giving up or losing interest?  As
q    The New Y
ork T
U    reported,
CThis time last year the budget was front page news. . . . On Monday
!. Darman is to release this year
s mid-year review
.  It will show a
gHdeficit of perhaps $315 billion or $320 billion for the next fiscal year
g.nearly $100 billion above the figure last July
, $35 billion or $40
gCbillion above what was forecast as recently as February and far and
way the biggest deficit ever
.  But
nobody seems to care. . . .
t>The economists and political scientists who filled the nation
s Op-
g=Ed pages last year with doomsday columns about dangers of the
deficit have
)A'turned their attention elsewhere. . . .
Turned their attention elsewhere.
  Not surprising.  This effect was
known to De T
)U8ocqueville over a century ago, who described in his book
Democracy in America
g0Subjection in minor affairs breaks out every day
, and is felt by the
g whole community indiscriminately
.  It does not drive men to
gCresistance, but it crosses them at every turn, till they are led to
Fsurrender the exercise of their own will. . . . The will of man is not
Fshattered, but softened, bent, and guided; men are seldom forced by it
Dto act, but they are constantly restrained from acting: such a power
does not destroy
)Z7, but it prevents existence; it does not tyrannize, but
gIit compresses, enervates, extinguishes, and stupefies a people, till each
@nation is reduced to be nothing better than a flock of timid and
9industrious animals, of which government is the shepherd.
gEEven Harvard professors are reduced by this phenomenon to the role of
timid
 animals.  The
article continued:
gBBenjamin M. Friedman, a professor of political economy at Harvard,
5said he believed just as strongly as he did last year
, when he was
gFwriting regularly about the subject, that the deficit was
ruining the
country
 But he said he felt like someone who had tried
    Helvetica
    The New Y
ork T
imes,
July 14, 1991, p. 10.
Democracy in America
, Alexis DeT
)33ocqueville, ed. by Richard Heffner (Mentor: 1956),
U>pp. 303-5 (order of sentences separated by ellipses reversed).
Times
+g1@unsuccessfully to persuade an alcoholic friend to stop drinking.
ve done absolutely everything you can do, and now it
s not
g=at all clear it will do any good to continue harping.
 . . .
, the President
)Q0s budget director puts forth the biggest deficit
in history
)1).  How can the Democrats be silent?. . .
tDThey signed the deal that put off further debate on the budget until
gFafter the 1992 election. . . . They forfeited their right to criticize
DPresident with a stratospheric popularity rating on the one issue on
which he seems vulnerable.
gDIndeed, the political parties, accomplices in the budgetary debacle,
UPcolluded on a deal to prevent discussion of the critical issue before elections.
According to V
irginia governor L. Douglas W
ilder
'ashington has so mismanaged the nation
s finances that in order to
gBsave their own skins, the elders of both parties met behind closed
Adoors for weeks and then emerged to join hands in the Rose Garden
5to support the most regressive tax package in history
, and a set of
gFbudget priorities that lock us into the status quo for several years
#all so everyone can get re-elected.
g%It is, or ought to be, apparent that
#the National Debt problem will not,
U@and cannot, be solved under the present Constitutional structure
UFstructure run by entrepreneurial Incumbents and their special-interest
Jclientele:
the deficit, properly understood, is a surface symptom of more
Jfundamental problems in our political institutions. . . . we cannot expect
5incumbents in Congress to change the present system.
Richard Snelling,
the former governor of V
ermont, summarized:
gDFour years ago, as chairmen of the National Governors Association, I
5met with Congressional leaders to discuss the nation
s economic
gCproblems.  At one session, within a few minutes
 time, I heard both
Pete V
)#9. Domenici, Republican of New Mexico, the chairman of the
g8Senate Budget Committee, and James R. Jones, Democrat of
>Oklahoma, then chairman of the House Budget Committee, declare
Dthat the budget and the debt were wheeling out of control.  But they
Dsaid Congress could not act in the face of the combined onslaught of
>the hundreds of big, powerful special-interest groups based in
ashington.
/What was true four years ago remains true today
.  Each of these
gDspecial-interest groups endorses the notion that the deficit must be
Dshrunk.  Some are willing to agree that spending must be cut, others
    Helvetica
    The New Y
ork T
imes,
July 14, 1991, p. 10.
The W
all Street Journal
, September 18, 1991, p. A-16.
1985
Duke Law Journal
1079 (footnote omitted).
Times
+g1Cthat 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
BCommerce is opposed to any tax increases its members would have to
tAIn 1981, Jones summed up the situation:
There is a constituency
gDfor national defense.  There is a constituency for every item of the
Gdomestic budget.  There is a loud constituency for tax cuts.  But there
1really is no constituency for a balanced budget.
gIFor structural reasons, the predicament our officials have placed us into
UNwill not be defused by them.  Deficits are created by the inordinate influence
Gof special interests on Incumbents, and attempts to cure the defect are
+fought off by those same special interests:
>[M]embers of Congress are rational actors who pursue the self-
Iinterested goal of re-election. . . . a rational politician interested in
Emaximizing the chances of re-election will not pay equal attention to
$the preferences of all the district
+s voters. . . . a rational, self-interested
gIpolitician will pay particular attention to the desires of those citizens
8who have managed to form themselves into coherent groups
Corganized around particular issues. . . . organized citizens have a
Fgreater influence on the behavior of politicians, who must continually
=seek re-election, than citizens who are not organized. . . .
C[C]itizens are rational and self-seeking. . . . if a large group of
gDcitizens all share a common interest that can be promoted by forming
Ban organization, but the additional benefits to each member of the
Ggroup from joining the organization will be small, it will be virtually
Dimpossible to form such an organization.  This is because it will be
Drational for each member of the group to
let George do it.
  But if
Deveryone depends on someone else to do the dirty work, it never gets
Fdone.  Through a series of decisions that are individually rational, a
Iresult is reached that is collectively irrational:  the group will not be
Gformed, even though 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
gFrelatively significant way by what the government does, is more likely
=to organize and expend time, effort, and money to procure and
>influence government policy than is a diffuse and disorganized
public. . . .
>Most government spending programs provide significant benefits
gEto relatively concentrated, and, therefore, relatively well-organized
Gand politically effective constituencies.  On the other hand, the costs
Bof government spending are spread over a large and diffuse group
    Helvetica
1985
Duke Law Journal
1087-8 (footnote omitted).
Times
+g1:taxpayers. Because the incremental cost of each government
Fspending decision is relatively insignificant to individual taxpayers,
=and because the benefits from organizing to oppose government
Dspending are speculative and difficult to appropriate, public choice
Itheory predicts that it will be difficult, if not impossible, to organize
Ethe broad mass of taxpayers, as such, into an effective counterweight
=to spending that benefits
special interest groups
 with more
Dnarrowly focused interests.  Thus, public choice theory implies that
Ethere is an inherent bias built into the political system in favor of
Aspending to benefit organized constituencies, even when the total
-costs of a program exceed its benefits. . . .
A[G]roups of taxpayers frequently do lobby and engage in political
gHactivities to obtain changes in the tax code that will benefit them.  It
is worth noting, however
', that most of the tax code issues that
gDgenerate robust political activity tend to benefit relatively narrow
Fgroups, such as the oil industry 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.
g/A second central problem is that those who are
really
opposed to the
deficits we are running
haven
t been born yet
gJBut that alone, if true, would not explain the deficit, which is the joint
Bproduct of government decisions as to revenue as well as spending.
>. . . politicians
enjoy
 appropriating money to benefit their
Gconstituents, but they do not
enjoy
 taxing them. . . . the causes are
Dstructural
 that is, they inhere in the system of incentives facing
6politicians, regardless of personal preferences. . . .
D[B]y creating a deficit and borrowing to finance it, politicians are
gEable to confer benefits on current voters while imposing a portion of
Hthe costs on future generations who will have to pay the bill. . . . the
Ginterest group that is the weakest politically is one that is even more
9difficult to organize than taxpayers
 the unborn. Future
Cgenerations are truly subject to
taxation without representation,
because today
)Q7s politicians can vote to implement programs to benefit
today
)#0s voters but to be paid for in part by tomorrow
s taxpayers.
t;When someone who cannot vote can nonetheless be made to pay
g=the costs for something that benefits someone who can vote, a
Bpowerful incentive is created for politicians to follow what Bruce
DAckerman, John Millian, and I have called the
cost-externalization
strategy
, the politician
)^%s
equivalent of a free lunch.
 Cost-
gDexternalization arises most frequently in a geographic context, when
Hpoliticians in one state seek to obtain benefits for the voters in their
Fstate while imposing disproportionate costs on the citizens of another
    Helvetica
1985
Duke Law Journal
1088-1091 (footnotes omitted).
Times
+g19state. One of the functions of the commerce clause of the
HConstitution is to restrain politicians from pursuing this tempting type
 of cost-externalization strategy
. Deficit spending provides
gEfunctionally similar opportunities for politicians to engage in cost-
=externalization, but across temporal, rather than geographic,
boundaries. . . .
F[P]owerful incentives are inherent in the existing political structure
gAfor politicians to engage in inter-temporal cost-externalization.
?Unlike the commerce clause, which protects (albeit imperfectly)
Bcitizens in other states from geographic cost-externalization, our
FConstitution provides no restraints or defenses against inter-temporal
cost-externalization.
gIThe final nail in the coffin is the desire of these Incumbents to stay in
office:
BThe essential reason why we cannot expect Congress to initiate the
Hkinds of changes that will be necessary to deal with the deficit is that
Cincumbents are among the prime beneficiaries of the present system.
CThe present system allows incumbents to enhance their prospects for
Ereelection by catering to well-organized interest groups and imposing
?costs on future generations.  There is no reason to assume that
DCongress will volunteer to be part of the solution, because Congress
is part of the problem.
gJAfter the meticulous cataloguing of these insights by Eliot and others, it
UKis not surprising that political scientist Laurence Dodd would observe that
the Madisonian system is self-destructing.
Even if an individual member
of Congress
8want to solve the problem, s/he would have to bypass the
U"impassable Constitutional hurdles:
9As a Congress composed of members who are concerned about
>public policy becomes increasingly and necessarily enmeshed in
Einstitutional immobilism . . . Congress faces the external checks and
/balances built in the Constitution.  Ironically
, since the Founding
g@Fathers thought that Congress was the most dangerous branch, the
8really powerful checks, such as veto and judicial review
, were given
gFto the president and the Court to use against Congress.  The inability
Iof the legislature to know its will thus is exacerbated by the ability of
Ithe president and the Court, separately or in alliance, to debilitate any
Bcongressional will that may exist by throwing in front of Congress
Dthe requirement that it make legislative policy not by majority vote
    Helvetica
1985
Duke Law Journal
1091-1093 (footnotes omitted).
1985
Duke Law Journal
1098 (footnote omitted).
Studies of Congress
)P    , p. 516.
Times
but by two-thirds vote.
gLIn light of all the foregoing, there is only one final question
 whether or
UEnot people can or will be able to organize quickly enough to head off
financial disaster
    Helvetica
Studies of Congress
,  pp. 516-7.
Times
THE NEED FOR A NEW CONSTITUTION
?[W]hy is the experiment of an extended republic to be rejected,
Cmerely because it may comprise what is new?  Is it not the glory of
Bthe people of America, that, whilst they have paid a decent regard
@to the opinions of former times and other nations, they have not
)suffered a blind veneration for antiquity
, for custom, or for names,
gBto overrule the suggestions of their own good sense, the knowledge
@of their own situation, and the lessons of their own experience?
 James Madison, 1787
gA[L]aws and institutions must go hand in hand with the progress of
5the human mind.  As that becomes more developed, more
?enlightened, as new discoveries are made, new truths disclosed,
2and manners and opinions change with the change of
Acircumstances, institutions must advance also, and keep pace with
the times.  W
)K4e might as well require a man to wear still the coat
which fitted him when a boy
%, as civilized society to remain ever
g/under the regimen of their barbarous ancestors.
 Thomas Jefferson, 1816
gAThe 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
gAwhatever 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;
g?poverty in the cities; racism; pollution; the threat of nuclear
Bannihilation; these and all the other urgent concerns of today and
>tomorrow can only be addressed by a government which functions
consistently
, efficiently
, and legitimately
 Thomas Brennan, 1982
gGDue to the Debt Crisis, as previously noted, 32 States have requested a
UBConstitutional Convention to consider a Balanced Budget Amendment.
EBut, as Pascall (1985) wrote, a Balanced Budget Amendment alone would
Gsimply be
an admission in the Constitution that the form of government
    Helvetica
Federalist 14
, pp. 66-7 (Madison).
=Letter from Jefferson to Samuel Kercheval, July 12, 1816, 12
orks of Thomas Jefferson
Cooley Law Review
1, 42 (1982).
Times
+U2Ddesigned by the Constitution no longer worked on budgetary matters.
UHAs we have seen, the source of our infirmities is deep
 very deep:
Pcauses of the deficit lie in the structure of our modern political institutions.
MUntil we resolve the underlying institutional issues, no stop-gap measure can
*truly resolve the problem of the deficit.
Unaccompanied
band-aid
U8fixes such as Balanced Budget Amendments and Line-Item V
etoes for the
UIPresident are
solutions
 to fundamental structural inadequacies that are
Ptoo 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
UJthe dictum in the Preamble that we should
secure the Blessings of Liberty
to ourselves and
our Posterity . . . .
  Dodd stated the obvious:
gFIn light of these considerations, a successful end to the debilitating
Ecycles of the twentieth century requires that we direct attention not
Fto internal congressional reform but to fundamental alterations of the
 constitutional system itself.  W
!e must create an incentive system
g:within the Constitution that, while sustaining a degree of
Acongressional decentralization that will allow for innovation and
=expertise, will lead members of Congress naturally to support
@centralizing mechanisms that can sustain institutional integrity
gAalso must reconsider the nature of the checks-and-balances system
:with the intent of strengthening the position of Congress.
Simultaneously
)P-, we can redirect the values by which we wish
gCinstitutional politics to be conducted, shifting from a politics of
@minority veto and policy inaction toward majority government and
social justice.
Needless to say
)W5, devising a proper constitutional form involves much
U+careful thinking
 it is important, however
", to design a Constitution in line
UHwith 21st Century ideals, ideals which are considerably more progressive
Ethan those used by the Framers in a time when an African-American was
$considered three-fifths of a person:
@As we consider movement toward alternative constitutions we must
Grealize that constitution making is serious and difficult business.  It
Erequires realistic and hard-headed assessment of human nature, of the
Cimplications of different institutional arrangements, of the social
?conditions within which politics is to be conducted, and of the
Aconsequences that will derive from the interaction of these three
2elements of political life.  In many ways Madison
s performance in the
Federalist Papers
)g4is still the best guide to this type of undertaking.
g:A proper respect for his intellect is always advisable.  Y
et we also
    Helvetica
The T
rillion Dollar Budget
)S , Glenn Pascall (University of W
 ashington Press: 1985) , p. xii.
1985
Duke Law Journal
1104.
Studies of Congress
)P    , p. 517.
Times
+g1?must unlock ourselves from the infatuating clarity and logic of
Madison
)3:s arguments that continue to exert a seductive hold on our
gAimaginations long after the supporting conditions assumed by them
Dhave passed.  The transformations of our society in the last century
Cundercut the accuracy of his forecasts.  The changes in our values,
@and hopefully the growth of a greater commitment to majoritarian
@government and popular justice, alter the goals to which anew or
8modified constitutional arrangement should be committed.
gFAt a time when we are moving towards crisis scenarios in many segments
of our society
)H:, it is imperative that we take this necessary first step:
gCOur Constitution, at the time it was adopted, was a document far in
Badvance of its age.  Even today there could be no nobler statement
H. . . than one particular part of that Constitution, the Bill of Rights.
;But that part of our Constitution which deals with the mere
    machinery
)<3of government must now be candidly reexamined . . .
t'The Constitution exists for the country
, not the country for the
Constitution.  W
)Z3e must not make a fetish of a rigid legal document.
. . . W
)%:e must be at least as ready to make progressive changes in
gAgovernment as our forefathers were when they framed our basic law
gBNo one today thinks that the proper way to show our admiration for
the W
)#9right brothers
 original biplane would have been never to
design anything better
)z-.  Nor is this the way to show our admiration
g:for the enterprise of the men who framed the Constitution.
g2Here, then, is a Constitution for the 21st Century
    Helvetica
Studies of Congress
, pp. 517-18.
A New Constitution Now
pp. 8-9.
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