Sunday, October 2, 2005

Defects in the American Constitutional System

Now that President Bush has made his first successful selection for the Supreme Court, it is a fitting time to consider the Constitution that the Supreme Court often construes. This will not be the usual Fourth of July rah-rah about the Constitution’s being the oldest functioning written constitution, or its role in guaranteeing our liberties, etc., etc.
All of this is of course broadly true; but our Constitutional system is not without problems or defects: most of which are the product of social, political and technological developments unforeseen in 1787, or of later amendments to the document, and/or faulty construction of the founding document by the Supreme Court. Also, some of what in fact comprises the constitutional “system” of the United States is not part of the written constitution, but has developed alongside of it, and although unwritten, product of judicial decision, or a creature of statutory law, is nevertheless in fact part of our Constitution.

I have been thinking on this subject for awhile, and it seems to me, that the American constitutional system, as it has developed, is open to criticism on at least the following points:

1). Term of office. Presidential terms are too short, and the 22nd Amendment's prohibition on re-election after two terms creates a lame duck. A six-year term with infinite re-eligibility for re-election would be better. The electorate is wise enough to determine for itself when a politican's usefulness has ceased. Similar criticism can be leveled at the short terms of members of the House of Representatives. Two years is barely enough time to learn the job, let alone accomplish anything. Four year terms would be better.

2). Power of the Federal Courts. In practice, the federal courts have acquired an excessive degree of power, at the expense of the political branches (the President and Congress). Primarily this has been because of the incorporation doctrine and its various permutations extending the Bill of Rights to the States, and the increased willingness to find congressional enactments unconstitutional to achieve results perceived as desirable.

3). Power of the Bar. A contributing factor to the problem in No. 2 has been the excessive power of the Bar, which is driven by the ease of litigation. Litigation is too easy because of (1) the contingent fee system, which makes it excessively affordable to litigate, because if a claim proves to be a bad one, the litigants bear their own attorney’s fees, (and the plaintiff loser often doesn’t have to pay the winner defendant’s), which removes the incentive to be selective about claims. Bad investments are made up for by the great payoff of a successful action (where the loser defendant does often pay the winner plaintiff’s attorney’s fees, one way or another – because the attorney collects, often, 33 percent of the recovery, sometimes more. Also (2), even bad claims can be prohibitively expensive (or good claims take too long to resolve) because of the bias towards giving almost everybody a jury trial.

4). Common Law. Another contributing factor is the common law legal system, which, although flexible, affords too much power to judges (unelected in the Federal system). A civil law judge (as in Europe, Latin America or Louisiana) has his discretion strictly limited by the written terms of a statute, which he is bound to interpret strictly and literally, and his interpretations are usually subject to being overturned by the legislature. Also, courts have no inherent powers, unlike the case here (see the note on equity, below). In our system, unwritten customary law and the ability to interpret the law allows judges to produce results they consider desirable, whatever the intentions of the legislative bodies – and this can be stretched with the inherent power of contempt. Both liberal and conservative judges have been able to engage in what they consider desirable social engineering, in a manner that would be unthinkable in, say, the French, system.

5). Equity Jurisdiction. All of this is related to the persisting existence of the species of remedial justice known as “equity” and equitable remedies. (For non-legal readers: “Equity” is a historical curiosity of English jurisprudence, and defines a series of remedies available to courts that are independent of or existing alongside “law” where courts have wide discretion to formulate relief (e.g. injunction) independent of the statutes or the common law. It used to be executed by its own system of courts. It was a by-product of the struggles between the kings, the nobles, and what became Parliament).

The merger of equity powers into regular courts of law, alongside the development of judicial review – the self-declared power of the courts to determine what is and what is not constitutional -- make the courts, as distinguished from Congress, the final arbiters of political and economic power in the American system. Federal judges are not elected and in practical terms are not accountable or responsible to the people, who are in theory sovereign. The Federal Bench is the equivalent of an American House of Lords.

6). The Decline of Federalism. Federalism has been a dead letter since the Civil War. This is partly because of the increased power of the executive and its attached bureaucracy, which occurred primarily because of the world wars, and because of the courts (see no. 2). The courts have accelerated this process. Much of the police and regulatory power seized by the Federal government intrudes into matters best left to the States -- such as abortion, and sundry less-visible issues such as the 55 mph speed limit.
7). The Senate. The abolition by the 17th Amendment of the indirect election of Senators by the State legislatures was pernicious, because it ensured that local oligarchies and power arrangements went un-represented in Congress. The House of Representatives is directly elected by the people, and ensures their representation in the legislative process. Directly electing the Senators short-changes the people, because it creates a second chamber of politicos more beholden to Washington lobbies than the lobbies back home. If indirect election of the Senate was bad, why not just abolish the Senate entirely ?

8). Increased reach of Federal Powers. This has occurred primarily via the abuse of implied powers by the Federal Government to enact legislation for which it has no competence. Again, driven by the world wars, and abetted by the courts. The 14th Amendment – used by the courts to extend the bill of rights to the States, has also helped.

9). The Media. The power of the electronic media, particularly television has expanded to such a degree as to actually threaten the ability of those governed to protect their own liberties, and it interferes with the power of the duly elected officials to accomplish anything at all. I am not writing primarily of the newspapers – although their political positions and instincts are the same as electronic media, they have less influence. I really am referring to television. The rise of the electronic media was not contemplated in 1787, but the power of the media is very real, is largely unaccountable, and permits powers and interests that are not politically accountable or responsible to exercise political power.

We now have an un-elected “opinion” oligarchy, which in alliance with academia, often exploits the ignorance of the public for the promotion of a liberal, and anti-national, agenda, on matters which favor its own interests. The media also operates to subvert or dictate support for particular policy choices made by elected officials. The electronic media is in fact a fourth branch of government, more powerful than the other three combined. It is not elected and cannot be held responsible, even for slander.

10.) Vetoes. The US constitution suffers from the lack of a line-item veto, at least for appropriations, and the lack of a requirement that all bills before Congress be limited to one subject, which combine to permit logrolling to an excessive degree. Prior to the Nixon era, the Presidents got round this by the use of “impoundment” – that is, acting to avoid expenditure of appropriated funds for projects they deemed unworthy, but the Supreme Court has since held this to be unconstitutional.

11). Civil Service. The creation of a professional civil service, (in lieu of the “spoils system”) which precludes punishment of unpopular bureaucrats by election of a new administration has operated to remove power from the people and their elected officials. Prior to civil service reform in the late 19th Century, a new President or new party in power could remove all the Federal bureaucrats and appoint its own. The modern civil service system insulates the bureaucracy from political pressures, thus giving it a great deal of unchecked political power – particularly combined with sovereign immunity – the inability, except under very limited circumstances, of citizens to sue government officials.

12). Regulatory Authority. The ability of the bureaucracy to interpret and enforce statutes by the promulgation of regulations amplifies the problem in No. 11. (e.g., the regulations established by the EPA, the FDA, the IRS, Homeland Security – take your pick). These may be useful and necessary, but they have the force of law, can result in fines, jail time, etc, and are issued by bodies that are un-elected and are not accountable to the people. The Constitution contemplates that the President shall see that the laws are executed (Art. II, § 1), and this would cover the issuance of regulations. However it is not contemplated that un-elected bureaucrats, not accountable to the president, should issue such regulations. This represents what appears to be an illegal delegation of legislative powers of Congress, and executive powers of the President. This has been upheld, (I believe wrongly), by the Supreme Court.

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