...Trying Out the New Constitution
George Washington's first term as President was much like a continuation of the Constitutional Convention, with many of the same participants.
Unwritten Constitutional Modification
It is so difficult to amend the Constitution, we mostly don't do it. Our system is to have the Supreme Court migrate slowly through several small adjustments, watching the country respond. Occasionally we have imported new principles, sometimes not entirely wise ones, adopted without the same seasoning.
..Constitution and Court
Forget all those lawyer jokes you hear. The American legal profession can rightly be proud of the Federal Court System, an achievement of the whole profession. America may be legalistic and overlawyered, but that reflects the rule of law dominated by lawyers. Curiously, the leader of this creation, John Marshall, was not so much a legal theoretician as a relentless Federalist lawyer, determined to reshape the legal profession to be worthy of power.
Original Document. The deliberations of the Philadelphia Constitutional Convention of 1787 were well-kept secrets at the time, although the passage of time allows us to learn many individual opinions of Delegates. What individuals urged is of little importance to us today, because after a century or two it is hard to know how much a Delegate was representing his district. Or, whether he would have been regarded as betraying their interests if they only knew. Patrick Henry and many other Virginians soon expressed outrage at what the Virginia Delegation had been promoting. In other states ratification was achieved by narrow margins. It is a fair assumption that many doubting citizens agreed to give the document a brief trial, and relied heavily on the prospect of making significant modifications. As matters actually evolved there have been few amendments, but vast numbers of "modifications". The famous system of checks and balances was worked out with the Legislative branch in mind, but in fact the voice of the people has been thoroughly filtered through Executive branch appointees of the President, or his Judicial appointees. It seems inescapable that a good constitution has a good beginning. And subsequently, elect Presidents mainly with a view to the sort of people the new leader would likely appoint to the cabinet or the courts. Congress is gradually becoming alert to this buffer layer, and increasingly delays appointments under the "advise and consent" clause. Almost all new presidents have many unfilled appointive offices, a full year after they assume power. Truly confrontational presidents will sometimes find important offices still unfilled at the end of their whole presidential term.
|Bill of Rights|
Bill of Rights. The first ten amendments, the so-called Bill of Rights, are a special case. John Adams was our representative in London, not actively involved in the Convention. Thomas Jefferson was Ambassador to France and hence also out of the country when the Constitution was written. On returning to America, he wasted no time expressing his resistance to it, his preference for the French approach, and his desire at least to amend it with a Bill of Rights. His opposition would probably have been even more strongly expressed, except for his fear of antagonizing George Washington. James Madison, who had mainly designed the Constitution, saw no need for making Congress swear to protect freedom of speech, press, and religion; of course they would. A Bill of Rights was originally a strategy to lock the federal government in a tangle of soaring commandments, just the opposite of the bickering market of negotiated viewpoints which Madison and Hamilton were striving for. At the opening of the new government, proponents had submitted over a hundred micro-managing impediments in the form of amendments to the Bill of Rights. The First Congress was largely composed of former Delegates to the Constitutional Convention, so all proposed amendments were referred to a special committee under the chairmanship of -- James Madison. Leaning on the slogan that God Himself only needed ten Commandments, his committee reduced the Bill of Rights to a handful of tersely-worded Commandments to Congress, and pushed them to adoption. To summarize the situation in modern terms, reflect that the Bill of Rights recently enacted for the European Community is fifty printed pages long. Add to that burden the need to translate each sentence into about twenty-five languages, and it becomes necessary to suppose that powerful forces within the European Commonwealth are determined to keep it powerless to think for itself.
Subsequent Amendments. Although the Constitution has been amended 27 times, with five amendments technically awaiting ratification, almost all are of a small technical nature, and the anti-slavery amendments are unnecessarily divided into three (XIII-XV) amendments. Essentially, the amendment process has been used in a substantive way only five times in two centuries, omitting the Prohibition of Alcohol, which was ratified and then repealed. Aside from the readjustments dating to the Civil War, Amendment XVI enables the Income tax, XVII provides for the direct election of U.S. Senators, XIX extends Women's Suffrage, and XXIV concerns non-payment of Poll Taxes. This handful of successful amendments is too small to permit analysis, except the opinion that the original intention to make amendment difficult has certainly succeeded. A subsequent suspicion would be that incremental changes in Executive Branch regulation, and Judicial modification through awarding court victory to some adversary claim, are simply easier than the prescribed amendment process for achieving the desired result. By this analysis, we reach the Olympian conclusion that tightening up regulatory and judicial procedures would mainly trigger more resort to direct Constitutional Amendment. If a return of power from the Executive Branch to the people is desirable, this is probably the simplest path to achieving it, but that fifty-page European Bill of Rights is a warning where it might lead.
Selection of Judges. Throughout the judicial system, it is likely the greatest unsolved problem is how to select judges. The judge runs the courtroom, applies considerable pressure on litigants to settle cases or go to trial with them, can often make decisions on his own, and by making procedural errors can provide the basis for appeal. The justices of state and federal supreme courts are the administrative officers of lesser judges within their sphere, and therefore have enormous invisible power over the court system. Most judges like their job immensely, even though the salaries are comparatively modest. However, it is very difficult to define a good system for selecting the right judge for the job. If the judge is appointed, he is appointed by a politician. If the judge is elected, he is a politician. Judges are mostly elected in Pennsylvania, and the weakness of having politicians control the nominating process is soon evident. In the general elections, the cost of campaigning ordinarily makes the judge candidates beholden to the seamy side of politics. Most of the money contributed to judge elections is contributed by trial lawyers who will appear before the judge in high-value cases, and that's a problem. If most of the money is contributed by someone with nothing visible to gain, the suspicion of bad motives is very strong, even without a shred of evidence. Election, selection or endorsement by Bar Associations throws the issues into the seamy hidden cauldron of professional politics. There seems to be no good way to elect, appoint, or endorse judges. In close decisions, the suspicion of hidden favors is always raised.
Among Philadelphia lawyers, the opinion seems to be general that the Federal courts are superior to the state courts, and therefore that Federal judges are in some way superior to state judges. It is not clear why that would be so, and perhaps it isn't so. It seems natural to expect federal salaries to be moderately higher than state ones, but that is a proposition which is not easy to defend. In any event, it scarcely seems like a reason for marked differences in judicial quality. Nor does the length of appointment seem sufficient, even if it might include lifetime appointment. In most professions, having a light work load is a cause for contempt, not envy. Perhaps some scholar should look into the value of having state judges regularly eligible for federal appointment; sometimes, being on the lowest rung of the highest ladder will itself increase the desirability of an office. Surely, among fifty states some will do things one way, and others will vary from that. Some sort of evaluation of the outcome might suggest some possible solutions.
Substitution of Statutes For Common Law. On the day the new Constitution was ratified, the nation had no federal laws, and might not be able to produce a new, well-considered set of laws for decades to come. The individual states did have existing laws covering most things, although potentially they had thirteen different views. The courts were aware there had been laws and courts for centuries before there were constitutions or even established governments, and had worked out expedients for managing the situation. Out of this mixture of traditions, the courts set about a novel approach, that of methodically replacing existing law with statutes. There was thus an opportunity to go through the entire universe of existing law, reconsidering all of it in an American context. It was only by the time of the Civil War that the volumes of statutes exceeded the books of Common Law in coverage, greatly reducing the amount of quaintness and ambiguity in the process. In this, it might well be said that the entire American legal system participated in the review. While it may be that this experience gave the Legal profession the impression they know more about the law than do those officially in charge of it, it is probably also true the American legal profession has more loyalty to the Law and the laws, than do many other legal professions coming from different traditions. It also pays more honor to words and documents than other nations do, and hence honors wisdom and justice, somewhat less.
Executive Branch Regulation With the Force of Law. In 1972, I was suddenly in need of consulting the Federal Register. After an afternoon of frantic calls to the most likely places, I concluded that it was not possible to find a copy of the Register in Philadelphia, even though it certainly seemed likely that a half-dozen or so copies were to be found, somewhere. This federal publication contains the regulations with the force of law, issued by the executive departments of the federal government; my recollection is that it ran to 28,000 pages in 1972, and today its 76 volumes run 84,000 pages. Today, there are many more copies of this book in Philadelphia; it would be difficult to run a hospital without easy access to the rules. These are just the rules promulgated this year.
|Chris Dobb and Barney \Frank|
In the fall of 2010, two bills were referred to Congress, and President Obama expected them to be passed within 24 hours. One was the health bill, or so-called Obama-care. A week or so later, the second bill called the Dodd/Frank bill or the regulation of the financial industry was passed with the same speed. Both of these bills were about two thousand pages long; they had been written by unknown unelected persons within the Executive Branch, and the general public was able to watch on television how these leviathans were being dumped on the desks of outraged members of the congressional health committees, with political orders to the majority party to pass them within a day or two. Two months later, a reporter for the London Economist was assigned the task of reading every word of the Dodd-Frank legislation and report on its virtues. This somewhat left-leaning foreign magazine put a satirical cover on its issue, which reported the finding that almost every page of the law mandated a dozen regulations, each one with a dozen or more reporting items. The probable cost to the financial industry seemed enormous to the reporter. The editorial page of the magazine ran a highly critical leader. A financial TV commentator offered the world his opinion that the greatest criticism of the American system he knew of, was the fact that a person of Chris Dodd's capabilities was in a position to issue such a bill.
The quickest way to answer that TV commentator would be to say, Dodd probably didn't write it. In all probability, it was written by an appointive member of the Executive branch, passed through the Congress under retaliatory threats from the majority political leaders of both Houses, and returned for the Presidential signature. By which is meant it returned to the executive branch from which it came, to be inflated to five or ten times its length in regulations with the force of law. The health bill alone covers 16% of the Gross Domestic Product. The two combined, approach half of the American economy. Many of the Congressmen who voted in favor of these laws they did not read, have already been voted out of office. It's not even clear you can impeach such a person. Up until this experience it seemed like a good thing for the Constitution to provide that "for any Speech or Debate in either House, they shall not be questioned in any other Place." — Perhaps it is this clause which calls for close reading, because it only exempts speech from criticism.