Philadelphia Reflections

Government Features Under Stress

A flexible and adaptable Constitution is not exactly the same as a "Living" Constitution, which has come to imply the courts can amend it without the nation following prescribed procedure for amendment. An exception is made for strictly judicial issues, so some observers prefer to focus on that nebulous boundary. What seems to be missing is a way for the public to express the feeling that liberties are being taken with the Constitution, without reaching for drastic remedies like impeachment. Mr. Dooley famously remarked that the Supreme Court reads the election returns, but it often has more affection for stare decisis than the public does.

Manipulation of the Legislature.

The founding fathers spent much time and energy wrangling about the size of electoral districts, generally agreeing that larger districts produced a better representative. James Madison was persuasive that poor people would always greatly outnumber rich ones and would follow the example of the French Revolution in stripping rich people of their property, with disruptive consequences. Possibly because the Industrial Revolution made a much larger proportion of the population prosperous, or possibly for other reasons, the much-predicted outcome did not significantly occur. Rather, we have seen progressive waves of new immigrants start at the bottom of the economic ladder and work upward in a generation or two. Rather than view poor people as a permanent underclass, we can mostly regard poverty as one stage in a process which usually leads to better positions in society. At the present time, the argument about the relative sizes of the economic classes has devolved into a debate about the optimum size of the immigrant class, which in turn depends mostly on our ability to assimilate those who cannot assimilate themselves. Nevertheless, Hannah Arendt and others have taken Madison at his word and searched the Constitution for clever ways in which that notorious schemer might have had his way. Somehow, the provable fact that affluent classes exercise their right to vote more vigorously than indigents do is taken to be proof of the Madisonian outcome. President Barrack Obama apparently saw some sort of political opportunity in the statistics, and we are therefore likely to hear more about this.

The representatives of the people immediately turn their backs to their elective constituencies after the election and begin to address their new main concern, which is how to deal with their new colleagues.

Influencing elected colleagues is their life; elections are periodic threats to that career.

It can be predicted that Americans will continue to prefer the approach of achieving equality by making poor people richer, to the alternative of making rich people poorer. But it can also be safely predicted that grumbling about republican (representative) government will continue, because of certain features of human nature that were poorly anticipated by the founding fathers. Although it should be obvious we have long outgrown any plausible alternative, the representatives of the people immediately turn their backs to their elective constituencies after the election and begin to address their new main concern, which is how to deal with their new colleagues. If they are fortunate enough to represent a "safe" district, they may not even pause to reflect much on the electorate at election time. They are not to be blamed for this; influencing elected colleagues is their life; elections are periodic threats to that career. It should thus be immediately clear that voters can most readily increase their influence on legislative bodies by maintaining a roughly even balance of political parties within their districts. In a word, gerrymandering has become a far more important obstacle to voter influence than race and social class will ever be. Gerrymandering in the House of Representatives, that is, because the Senate and other districts with immovable boundaries cannot be gerrymandered. Our system requires boundaries to react to population changes; therefore the control of legislative boundaries must somehow be removed from political control. The simplest approach would seem to be to avoid all mention of techniques and specifics, except one. The election should be voided unless it produces a reasonably balanced outcome; one that approximates the vote split of the entire state. Another measurement objective might be to reduce protracted incumbency in cases where boundary adjustments prove impractical.

A sincere representative of the people often finds his worst enemies are the leadership of his own party, seeking to control his vote.

Political families pass these secrets around within the political class, and we become more of an aristocracy than we imagine.

Once elected, a sincere representative of the people often finds his worst enemies are the leadership of his own party, seeking to control his vote. The methods employed to gain power over the freedom of a representative to vote his conscience are numerous, devious and highly effective. The consequence of this game is that experience is so much the master over innocence that families pass these secrets around within the political class, and we become more of an aristocracy than we imagine. No doubt the rules of the chamber evolve over decades or even centuries and respond to realities which most outsiders cannot appreciate. In all probability, the key to making reasonable rule changes is to transform the rules committee into a committee of the whole for a longer time, perhaps a whole week, at the beginning of each session. It is the nature of politicians to scheme in an elaborate game of chess, and it would be unwise to create the chaos of protracted rule modification as part of some devious contraption. But limiting rule changes to a single voice vote at the beginning of a whole legislative season is also unwise.

What might help is drawing the attention of think tanks and colleges to this clandestine issue. In rural state capitols, the first need is for the creation and funding of think tanks, now largely absent. As the newspaper industry experiences relentless shrinkage, philanthropic attention may well be necessary. The assiduous attention of lawmakers to these mundane issues is such that the publication of a few books on the topic might achieve enormous benefit.

Manipulation of the Courts.

The Constitution does not directly mention English Common Law, and strictly read could be held to limit the federal court system to disputes under the statutes and treaties created by the legislative and executive branches. That is, a Court of enumerated powers to match the enumerated powers of the Legislative branch. At present, many lawyers seek to transfer cases to Federal Court because the Judges are superior to state judges. The resulting competition is often salutary, but it is a sad commentary on the typical state judiciary. Since the nation began to function without any statutes passed by the Congress at all, and until the time of the Civil War had less shelf space devoted to all of the accumulated statutes than to the volumes of Common Law, it would have to be assumed it was intended by the Constitutional convention to let the courts themselves decide how much weight to give to the laws of our former masters. In any event, that is about what happened. One by one, as cases came before it, the Supreme Court made references to particular points of common law that became binding on the lower jurisdictions. This unspoken and somewhat obscure process gave rise to a rather questionable concept known as The Law, and therefore sometimes to conflicts between statutes and The Law. The early courts were careful to avoid open conflicts as much as they could, and tended to search for technical and procedural flaws upon which to base their determinations. John Marshall, who did most to forge new concepts of the role of the courts, was particularly careful to avoid open conflicts with clearly specified statutes until he was ready to declare the Supreme Court's right to "review" them. Step by step, the common law was restated to originate with the Court. In time, the findings of the Court became an extension of the Constitution. Americans scoff at the interminable volumes of the proposed European constitution, contrasting them with the few short statements of our own. But if the accumulated findings of the U.S. Supreme Court were appended to the brief preamble we call the Constitution, ours would be far larger. It might claim to be far more flexible but it is also more arbitrary. Flexible or arbitrary, its main weakness is to be so hidden from public view that one bad mistake would cripple its effectiveness. Roe v. Wade came pretty close.

A question has to be raised whether the Supreme Court missed an opportunity to organize and proclaim the organizing principle of Common Law, which in its present form was created by Lord Chancellor Sir Francis Bacon. Picking up on Galileo and other early 16th Century thinkers, Bacon's common law follows the principles of science. A hypothesis is offered, then it is tested and revised hypothesis is offered. Then the new hypothesis is tested and revised. It is called the scientific method, but might just as well be called the legal method. No principle endures unless it withstands continuing testing. The hypothesis from any source is given a respectful hearing, but it is not allowed to stand unless it is lawful. That is unless repeated testing confirms its validity. Statutes, on the other hand, are created by the opinion of half the voters, plus one. We thus have created half the system of the scientific method by passing laws and sending them to the courts for the accumulation of experience. The life of the law said Holmes, has not been logic, it has been experienced. What our system lacks is for some way to recirculate the experience of the courts back to the legislators, for reconsideration.

System Overload

Paper Stress

We may be a nation of laws but not of men, but that does not mean the more laws we have, the better. The United States Congress currently considers about 25,000 bills each year, but at least they have fairly adequate staff to help them, and they work full time, year round. By comparison, it is more appalling to learn that the New Jersey Legislature considers 10-12,000 bills a year since you have to multiply that by fifty on the assumption other states act the same way. And almost more disconcerting to learn that New Jersey passes 300 laws a year, meeting thirty times a year in three-hour sessions. It must then be reflected that new laws are then sent to the executive branch for implementing regulations. The regulatory process ordinarily results in a notice of proposed rule-making, a comment period, evaluation of public comments, and then finally the issuance of final rule-making. The Federal Register publishes all this activity and runs to more than a hundred thousand pages a year. Periodically, the whole business is restated in the Consolidated Code. Even though each enacted law only goes through this process once, quite a large industry is created just to disseminate new laws. In the process, we make a travesty of the ancient doctrine that ignorance of the law is no excuse . No one at all knows what the law is. The legal profession has been driven to specialization and subspecialization, just so one lawyer can claim a comprehensive grasp of a tiny portion of this stuff. Consequently, we see law firms of a thousand or more lawyers emerge in an effort to cover the entire field and keep up with it. Law firms thus are driven into the communication system employed by ant hills and beehives, as well as rising administrative and communication costs. The public is terrified of involvement in a system which was designed to protect their rights and promote their interest, but with charges of $600 per hour can easily bankrupt anyone who has a serious issue. The country watched Richard Nixon and William Clinton accumulate millions of dollars in legal costs; when the President of the United States, himself a lawyer, cannot afford to defend himself, things are reaching some sort of limit.

A few years ago, overcrowding in the Philadelphia prisons got to the point where a Judge Shapiro ordered Mayor Ed Rendell to stop sending any more prisoners to jail until conditions improved. That was fine for convicted felons, but enthusiasm in the rest of the community was restrained. The overloaded judiciary tends to respond to the avalanche of litigation by almost forcing litigants to settle rather than go to trial, and if a trial is unavoidable, to seek a lighter sentence by foregoing a right to trial by jury. Plea-bargaining is routine. Finally, a whole section of this legislative torrent has been moved away from challenge by the concept of "standing". Using the principle that someone may not use the courts to settle a grievance unless he can show some harm to himself has been caused, or some advantage to him would result from winning the case, the concept of standing has been driven by court overload to be ever more strictly applied. I cannot sue my town for having too few school crossing guards since I am too old to need them, and personally no better off if we have lots of them. It thus is inevitable that concerned citizens are driven away from the courts for relief from high-handed behavior by government, or inefficiency, or unnecessary cost. Directed by the courts to further their goals in the legislature, the citizen finds that legislatures can do little except pass more laws. Passing too many laws is already the underlying problem. The political parties have lately chosen to take sides on de-regulation and re-regulation, but this formulation is really intended to influence the relative size of the private and public sectors of the economy. That's quite a different issue from excessive particularization of instructions and warnings, and excessive use of the legal system in both the private and public sectors. There's a concept known as "capricious abuse of judicial process", for which citizens can be punished, but legislatures somehow cannot. Those who designed and sanctified limited government in 1787 when we started with no statutes at all, do not seem to have anticipated the danger of excessive growth.

Originally published: Tuesday, February 17, 2009; most-recently modified: Tuesday, May 21, 2019