Chapter Fifty-eight
Law and Constitution
Constitutions grew larger and more detailed - a useless development,
evidencing only a trick of a group in power to pass a
piece of legislation in a form that would be hard to repeal. Courts
grew more numerous, especially by adding a great many
administrative law tribunals to the system,
these necessitated by the increased numbers of legal complaints
against the increased activities of the bureaucracy --
national, state and local.
Federal courts resisted the New Deal,
then were frightened into allowing it to be mostly constitutional,
then cooperated to the point of over-enthusiasm, then found
themselves being manipulated into taking hot issues from the tender
hands of timid legislators, and finally began to retract earlier
deference to legislative and Presidential power - all of this being the
trend from 1933 to 1997, one mnemonic generation.
Meanwhile, the ordinary burden of the courts grew heavier.
Indictments and civil suits backed up to the point
where prosecuting attorneys indicted less, and
settled more indictments short of trial.
Cases of torts and contracts were more frequently settled out of court.
The frequency with which huge damages were incurred
in cases of medical malpractice, environmental pollution,
and product liability prompted attempts to set limits
to the awards that juries and courts could hand down.
No solution to this problem could be arrived at:
it promised to continue indefinitely, like the annual budget deficits,
for, with every new law and rule,
there came a new tactic of avoidance , costly,
adding delays, spreading confusion.
Computers helped legal research into precedents,
but too much so, for now an infinity of analogous instances
could be located and brought forward into the
legal argument before the court.
Better drafting of laws and regulations and a constriction of the
role of precedent and stare decisis
would help clarify and accelerate court proceedings.
To whose interest would this be? The general public,
and the poor litigant - which is to say,
a largely mythical and toothless force.
Little important federal legislation was vitiated by the judicial system.
Major areas of judicial intervention concerned the
competency of Congress to regulate the economy, Civil Rights, and
the powers of the President. As the century drew to a close, the
Congress had become more free to design regulations affecting
labor, capital, and all parts of the economy. Congress set up a new
system of administrative law to give due process of law in substance
and procedure to individuals and companies affected by the actions
of all agencies of the Government.
The federal courts played a strong role in curbing state
and local restraints on the rights of Blacks and foreigners.
In
this regard the so-called "Warren Court" was outstanding for all
of American history. (A perusal of the opinions of the Court throughout its
history would reveal a "liberal" attitude - counting John Marshall as
a liberal - less than half of the time.)It effectively turned the clock
back to Republican Reconstruction amendments and laws giving
African-Americans equal rights. Bolstered by and assisting the
Presidency and Department of Justice, it blocked every attempt of
state and local authorities to continue the 100-year
War of Reconstruction.
The Chief Justice, appointed by President Eisenhower, had been
three-times Governor of California and was favored both by
Democrats and Republicans of the State. (Son of a Norwegian
immigrant worker, originally called Varran, Warren had climbed
out of poverty, studied law, and took to politics. From a primary
interest in formal law, he evolved a strong sense of law as the
instrument of social justice.)
Two of the principal cases decided during his tenure concerned the
rights of Blacks to equal education and the right of persons to have an
equal say in the election of public officials (the "one-man, one-vote"
slogan). Regarding the first, a simple proposition, in the case of Brown
vs. Board of Education, the Court forbade the longtime legal
permissiveness of the courts to all manner of segregation of Blacks in
public and private institutions and gathering places. The Court
reversed precedent, declaring that a "separate but equal" doctrine was
not only spiritually depriving, but could never be expected to succeed
in giving equal facilities such as educational opportunities to Blacks
and White; hence, the education systems must merge
with all reasonable speed.
Incredibly - to the outside observer of American democracy - several
States opposed actively the process commanded by the Court and the
Executive Branch in keeping with the Court decisions; many lives were
lost to crimes both of racist gangsters and of Southern state and local
authorities; other forms of last ditch resistance were devised, but in the
end, school systems all too slowly merged throughout the nation.
Actually, the term "reasonable" was abused, and, lacking the guts to
go farther in breaking down the residential segregation
that was at the basis of de facto segregated schools, state
and local governments instituted the costly, stupid, mentally wasteful,
and disheartening system of busing a great many schoolchildren
to schools far from their homes. Buses,
together with hundreds of thousands of cars pressed into service,
helped pollute the atmosphere and jam traffic.
A second case took up the apportionment of legislative seats
in state assemblies.
The U.S. Senate escaped unscathed . It is the most unequally
apportioned legislative body in the country
(unless the Supreme Court is to be considered a legislative body,
as indeed it is, whatever the Constitution may say
or imply.) A voter casting a ballot for U.S. Senator in Alaska
has a power to the value
(according to arithmetical logic, assuming all values are equal)
of 100 times that of a voter in one of the
populous states to the South.
Justification of equal state representation in the Senate
is commonly deemed an especial requirement,
designed to maintain a federal republic.
This never was nor is what makes the U.S. federal.
It was only another of the many unfortunate
compromises of the Framers.
Most of the states, before the Supreme Court got after them (with
little constitutional justification) in the Baker case, had so
apportioned their legislative districts that city voters and, later,
suburban voters as well, were deprived of representation in
proportion to their numbers. There were several schemes of
prejudiced apportionment, including that of regarding the county,
whatever its population, rather like a state in the U.S. Senate, that is,
giving it an equal voice in the State Senate. The most common
apportionment came to be the failure to reapportion,
so that growing centers were cheated of their fair share
under the law, in favor of rural and small town populations.
The slogan of "one-man, one-vote" (which
logically should be termed the doctrine of "equal-population-districts")
was elevated into constitutional principle, and practically all
legislatures were put on notice to reapportion their seats
promptly and equally.
Before long, all elective jurisdictions in the United States, including
Congress, came under the baleful eye of the Supreme Court; state
constitutions, state and local laws, administrative rules and failures to
enforce laws were invalidated, citing mostly the U.S. Constitution
guarantees to all citizens, national and state, of the
equal protection of the laws.
Significant effects were observed in a number of places - more at
first than later, as if the first flush of victory for the equal-population
districts forces, the "One man, one vote" sloganeers, brought out new
elements of the communities: labor, Afro-Americans, women, and
others who profited from the confusion of
the existing forces to offer themselves as candidates for office.
Because suburbs were growing rapidly and, like the rural areas,
used their seats to discriminate against cities in matters of public
works, roads, energy, taxes, housing and education, this shocking
assumption of political power by the Supreme Court did not have as
much effect as was predicted. The cities were still underdogs.
Some beneficial effects were brought on insofar as
some
legislators,
no longer protected by what had become
malapportionment,
stretched themselves to accommodate new elements in their districts.
Certain state legislatures, zealous to give affirmative
representation to Blacks and Hispanics,
in North Carolina and Texas, for instance, began to draw
maps of equal population, but loaded with voters of a
distinct ethnicity, maps as weird as the original Gerrymander.
Courts could count on many field days in
this new apportionment sport.
It is useless to keen over the Supreme Court's usurpation of
legislative powers and the effacement of the theory of the separation
of powers into three branches, etc.. It has happened many times,
and will happen often again, and it gives bad cess to those who
believe a democracy or republic emerges from certain structures and
no other, and to the strict constructionists of the U.S. Constitution,
who should be, but are not as, dead as the dodo.
Over the period, a tendency was noticeable,
both in State legislatures and Congress,
to draw up highly controversial laws
vaguely and even to pass laws favored by the public in
unconstitutional form, expecting that the courts would fill in the
unpopular details and knock out any unconstitutional provisions.
Both practices, we would say, were and are denials of the validity of
representative government, since the legislatures were deliberately
evading their responsibilities.
Some of the administrative agencies that Congress has set up in the
past century were also given powers to compete,
in their specific spheres, with the powers of the
Legislative and Executive branches of government, making of
the Republic much less a classical or popular democracy,
whether Federalist, Jeffersonian, or Jacksonian, but
bearing marks of their origins in the rapid-change periods of
Woodrow Wilson and Franklin D. Roosevelt,
that could be called bureaucratic democracy.
The Federal Civil Service grew slowly, then rapidly, exponentially. It
would expand in wartime and maintain the level afterwards.
The number reached well over a million on the civilian
side of the federal government alone after World War II;
double this number to include state and local government employees
and match it with uniformed armed forces personnel.
Inasmuch as these employees were buying and
using material and machines, and most were supporting households,
the government portion of the Gross Domestic Product (GDP),
which embraces all direct and indirect spending for
goods and services, surpassed the 50% mark in the 1960's,
after which, if one wished to call it so, America might be
termed socialist or demi-socialist.
About half the population has recently been working for,
or has been directly dependent upon government,
in a great many different ways.
Between 1789 and 1948, total
federal government civilian spending for all years,
over 150 years, amounted only to $7 billions;
within the next 16 years it rose to $46 billions.
After unconscionable delays, Congress set up a Federal Register to
carry in one central on-going bulletin every single rule of the executive
branch of government. The Register rapidly grew to
hundreds of volumes, emerging from the management of the several
thousand different activities of the federal Government. (If the State
and local governments were all required to do the same, and an
average struck of all the rules governing a large company or even an
individual citizen, the average pile of documents per year would
push through an office ceiling. No citizenry in the world was and is
more heavily governed, unless the pile of restraints that have to do
with giving people liberties is subtracted (but every liberty involved
many rules of restraint).
Commonly, efforts to correct, control and expedite the work of
governmental agencies were left to the courts, who operate very
slowly and according to rules that are too often rigid. In a few
places, a sort of inspector-general or ombudsman was devised whose
task it was to criticize governmental operations.
Congress, with imitations in some States and localities,
organized a General Accounting Office,
whose duties came to include not only
ordinary bookkeeping and auditing, but also the criticism of the
effectiveness, legality and spending practices of the operations of
federal agencies. The GAO became an Inspector-General,
whose studies and reports, initiated by congressmen,
zeroed in on subjects so diverse as the
performance of weapons in the Gulf War and the
degeneration of the physical infrastructure of the country.
The task has become huge, and no Congressional committee,
federal court or office that
acts against malpractice or incompetence or illegality,
after these kinds of conduct have occurred,
can possibly fulfill the need to prevent them.
More radical measures would be required than past critics have
recommended. For instance, an enforced change of job and agency for
everyone twice or thrice in the course of a career
would cause automatically a change of conduct and a variation in
practices in the many types of offices.
Too, a zero-sum activity or even a negative-zero-sum system might
be employed to restrain new activities from being generated
wholesale in legislatures, city councils, school boards, and executive
agencies: no new activity would be established without
defuncting an on-going activity.
There has been a growing identity of processes and problems
between agriculture and business,
and between military affairs and industrial affairs,
also a growing correspondence of functions and processes
between government agencies and private enterprises.
By 1900 large industrially organized
farms assumed a dominating role in regard to numerous crops -
corn, wheat, orchard crops like fruit and nuts, hops -
while the media dreamed on about noble small farmers.
Government bureaucracy and business bureaucracy came to
resemble each other, at first, in the very beginning;
the men who directed the government offices were themselves
inclined to treat government as a business affair.
Hamilton and Morris and Gallatin were such types.
As the spoils system and rotation in office
took over governmental affairs, the distinction
from business operations grew larger. Too, as a result,
entrepreneurial industrialism was a giant in America
when the civil service was still in swaddling clothes
after the Civil War.
But then following World War I, the image of bureaucracy was more
appropriate to governmental agencies, a distinction heightened by the
New Deal and World War II, until for the latter half of the twentieth
century, governmental agency and corporate-industrial concerns
operated very much the same internally. Efficiency is a difficult and
slippery concept, and comparisons of efficiency between any two
entities, and especially between a public and a private entity, are
most uncertain.
The "bottom line" can no more be taken as an indicator of efficiency or
virtue than can an average grade of public employees on a civil service
examination. Or the correctness with which the government agency
spends every last cent and no more of its appropriation for the year. It
would be prejudiced and foolish to maintain that American business
has had a record of efficiency over the past century superior to that of
government agencies.
All things being equal - though they never are - the very occurrence
of a large profit in a business operation may signify that competitors
and clientele were inefficient in some crucial regards.
Or a sharp improvement in market conditions.
Or a stroke of luck. Or other causes.
Management, owners, and economists, not to
mention the mass media and politicians, are - what shall be the
estimate? - several times more inclined to find a force for good in a
business than in a government agency.
Concerning the national, state, and local
bureaucracies, six points call for emphasis:
l.
The growth of civil service has been an ethnically, racially, and
religiously equalizing force for almost a full century.
2.
Since a large proportion of persons entering the civil service and
becoming specialized workers would have pursued other occupations,
and many would have been civically and politically active,
there occurred a loss of broad and general civic attention and
activity among the well-educated.
3.
The civil service had a grave inherent fault. The civil servant loses
little or nothing by delaying business and may enjoy his work more;
whereas the subject citizen loses time, money, control of his planning
and operations - a great deal; therefore the
relationship is always in this sense intrinsically
punitive and unequal.
4.
The civil service (national, state, and local) has conducted
thousands of activities from building and maintaining huge dams
to inspecting meat. Probably nearly all of these government
activities could be privatized, that is, owned and operated
by different kinds of companies under government oversight.
The possibilities of enhanced productivity,
flexibility, accountability, reform, and creativity would be large.
5.
The whole Federal system has evidenced changes that inefficiently
make the Federal government master of the States and localities. It is
mastery without accountability. States and local government
suffer loss of prestige, power, and initiative. Still, unhappily,
when an activity of the federal government is devolved or
decentralized onto states or localities,
no increment of innovation or creativity is to be noticed
nor any increase in efficiency.
6.
Finally, government regulation fell heavily upon the small
enterprise, the small business, the small foundation, the small school,
etc. The large accounting, legal and public relations staffs
of the great corporations could confront the civil
servants one-to-one. Meanwhile, the officers of big business
readied themselves for free sailing around the world,
and threatened to hoist anchor.
A measure of government direct participation in
policy-making of corporations, probably like the NIRA, a fascistic
kind of corporatism, may eventuate in the attempt to control these
groups of giants whose loyalty to the USA fluctuates with the
bottom line of their profits and loss accounts.
Something like a Third House of Congress - not lobbies, media, or
political parties - but a constitutional addendum and coordination of the
vast power and public interest of the large companies of the land,
many of them bigger than many states and great cities,
would appear to have been needed for a long time
- since the first outcry against monopoly -
but nothing important was done (except for the brief and
apparently unsuccessful NIRA) was attempted over the whole century.
American character, ideology, and legal system were opposed.
For a memorial generation after the organization of a
civil service recruited by tests, sheltered from
politics, and granted tenure, government activities were
not myriad and huge, so that politicians and
legislators might ordinarily intervene on behalf of
private interests and constituents anywhere in the pyramid of offices.
With
the great wars and depressions,
and the growth in complexity of the economy,
however, the plethora of agencies proved to be
too much for the most aggressive politicians.
One reaction was to set up a system of administrative
courts to operate semi-independently
within agencies themselves, so as to give
private interests affected by the agency a full
day in court and a due process of law.
Politicians and legislators were overwhelmed by
petitioners of all kinds and could not cope with the
new big government. They added staff,
but never enough, it seemed, for there was no end to
complaints and the bureaucracy seemed endlessly capable
of resisting
interference with its workings.
Strangely, no systematic code of conduct was ever drawn up to govern
the universe of procedures relating the offices of politicians
to the offices of administration. Between the politician and
the civil servant there stood a generally unbridgeable
barrier of suspicion. The representation directly of
private interests, and the interminable service,
"messenger boy" function of politicians continued to
use up half of their time and energies and
almost their entire staff.
