DEAR INTERNET USER: CONGRATULATIONS! YOU HAVE JUST DOWNLOADED, AT NO CHARGE, A 300 PAGE BOOK CONTAINING A BRAND NEW CONSTITUTION. I HOPE YOU LIKE IT! SEND ME E-MAIL IF YOU HAVE ANY QUESTIONS. -- B. Krusch Temporary E-Mail Address: bakhc@cunyvm.cuny.edu =========================================================================== BOOK REVIEW FROM "AMENDING AMERICA" (Times Books: 1993) by Richard Bernstein (with Jerome Agel) pp. 237-8: "In 1992 as this book was nearing completion, Barry Krusch published what may well be the most thoughtful and thorough reframing of the Constitution yet attempted. His study, THE 21ST CENTURY CONSTITUTION: A NEW AMERICA FOR A NEW MILLENNIUM, is the first proposed rewriting of the Constitution to take account of the twentieth-century revolutions in information and communications technologies; it is also noteworthy for its intellectual grounding in the American Revolution's series of experiments in government. Krusch, a 34-year-old computer consultant living in New York City, began his labors in 1987, prompted by the commemoration of the Constitution's bicentennial. Struck by the contrast between the political creativity of the Revolutionary generation and the increasing ineffectiveness of their modern counterparts, Krusch pursued two complementary lines of research. He steeped himself in the primary sources produced by the framing and ratification of the Constitution in 1787-1788, and he traced the divergences between the Constitution as written and the Constitution as administered (the "Empirical Constitution"). In 1990, Krusch opened a file on rewriting the Constitution on GENIE, a national computer bulletin board. He posted draft revisions of selected constitutional provisions and solicited comments from other users of GENIE, using the accumulating drafts and comments as the raw material for his first comprehensive presentation of a clause-by-clause revision of the Constitution. Four major themes shape Krusch's proposals. First, emphasizing the vital role that access to information must play in democratic governance, he proposes that modern information and communications technologies be the core of a new constitutional framework. Technological constitutionalism of this type, he maintains, could make it possible for all Americans to take part in government. Second, he seeks to close the gap between the written Constitution and the Empirical Constitution, so that divergences between theory and practice in constitutional government no longer would sap the legitimacy of the constitutional system. Third, Krusch urges the reworking of constitutional doctrines of separation of powers and checks and balances, and the recasting of key institutions such as the Senate, to improve government's responsiveness and efficiency while incorporating added protections for individual rights. Fourth, Krusch stresses the dangers to democracy posed by professional politicians and the major political parties and the need to restore ordinary citizens as the true sources of sovereign power. His proposals therefore would, for example, exclude members of the major parties from holding federal legislative, executive, or judicial posts. Krusch's plan of revision differs in several notable ways from all previous attempts to rewrite the Constitution. His plan is distinct from the parliamentary tradition (though it shares that tradition's dissatisfaction with separation of powers) and from Tugwell's executive- centered model (though, like Tugwell, Krusch seeks to bridge the gap between the theoretical and actual operation of American government). While retaining the structure and much of the original language of the 1787 Constitution, Krusch hopes to construct a form of government in which ordinary citizens retain and exercise power to set national goals and objectives and to monitor effectively the doings of their elected and appointed officials. Finally, thanks to his familiarity with modern computer technology, Krusch has helped to advance the theory of electronic governance beyond the model of the 'electronic town hall' familiar to most Americans from the tantalizing 1992 Presidential initiative of H. Ross Perot." ============================================================================== THE 21ST CENTURY CONSTITUTION BARRY KRUSCH STANHOPE PRESS POB 1177 New York, New York 10163 TEMPORARY E-MAIL ADDRESS: bakhc@cunyvm.cuny.edu Note: Due to my busy schedule, I log on infrequently to this mainframe, so you might be better off sending comments via "snail-mail" if you don't get a reply within a week. This ASCII edition contains virtually all of the complete text of the 300 page book THE 21ST CENTURY CONSTITUTION originally published in 1992, minus footnotes and certain text in the 1787 Constitution. It also incorporates changes to THE 21ST CENTURY CONSTITUTION made by the author, which supersede the text of the 1992 edition. ASCII Electronic Copyright (c) 1994 by Barry Krusch This document may be re-transmitted by any person, group, or organization to any other person, group, or organization in ASCII ELECTRONIC form via any electronic mode or media, including modem, storage on a BBS server, CD-ROM distribution, DAT, Syquest, E-Mail, Ethernet, FTP, ISDN, floppy disc, or any other electronic mode of transmission without financial compensation to Stanhope Press or Barry Krusch, provided that no words are added, substituted, rearranged, omitted or otherwise altered, other than for exclusively personal use, and that no hard copies are made, other than for exclusively personal use. This right does not extend to documents saved in a format other than ASCII. Both copyright notices must appear at the beginning of this document. This ASCII version is 1.1. It was completed and first prepared for posting on April 15, 1994. Hard-Copy Copyright (c) 1992 by Barry Krusch All rights reserved. Except in the case of quotations embodied in critical articles and reviews, no part of this book may be reproduced in any form without written permission from the publisher. Inquiries should be addressed to Stanhope Press, P.O. Box 1177, Grand Central Station, NY, NY 10163-1177. Phone orders: 800-345-0096. LIBRARY OF CONGRESS CATALOGING IN PUBLICATION DATA Krusch, Barry 1958 - Includes bibliographical references and index. The 21st Century Constitution 1. Constitution -- United States -- Proposals to Amend Library of Congress Catalog Card Number: 92-80931 NOTES TO THE READER The heart of this book (the text of the new constitution) begins with Chapter Two. To go to some of the key changes to the 1787 Constitution, select the following text (without selecting the paragraph return symbol), copy it to your clipboard (if you have one), and then paste the selection into your "find" or "search" field. KEY WORDS/PHRASES IN THE 21ST CENTURY CONSTITUTION abide by the regulations alternate alternative points of view amendments shall be incorporated as the national interest requires auditor authorization of Congress chosen every year competent counsel constituent requests constitutional supplement defined by statute delegate its authority democratic form of government designate public policy discrepant disproportionate elections commission electoral college electronic interception electronic post office eligible to the office eligible to vote equal access regulations ethics legislation evaluation of zero evaluations extended by the people federal academy federal committee financially disadvantaged greater than or equal to gross national product he or she hypothetical example impeachment justiciability legislative committee legislative review board legislative veto lobbying national channel national database national initiative national objective national poll national recall national referendum nominate/nominees no person shall serve more than eight years numerical rating obligation to oversee one subject performance rating plainly worded positive obligation potential misconduct power to change the terms presumed innnocent primary election primary legislative responsibility private interests publish the voting record re-enacted representative of the population reproduce its programming request judicial remedies right of access right of parents right to an education right to communicate information right to learn to reason right to learn to write right to privacy right to propose legislation right to travel right to view rights enforcement rules for the proceedings of Congress rules of construction second federal convention act secondary responsibility shall disclose this fact staggered tax bracket timetables unconstitutional legislation verbatim report vote-trading KEY NAMES TO SEARCH FOR IN THE TEXT OF THE BOOK HISTORICAL Bagehot De Tocqueville Ellsworth Franklin Hamilton Iredell Jackson Jay Jefferson Locke Madison Marshall Martin Mason Mercy Warren Montesquieu Randolph Sherman Strong Washington Wilson Yates 20TH CENTURY Biden Black Boren Brennan Burton Byrd Caplan Chemerinsky Corwin Dillon Douglas Fortas Hazlitt Hehmeyer Hughes Kerry Ladanyi Laski Roosevelt Tugwell Wellstone White Whicker TO VIEW THE CLAUSES OF THE CONSTITUTION ONE AFTER THE OTHER 1) First find "we the people." This will take you to the beginning of the New Constitution. 2) Put an "=" sign followed by a RETURN (paragraph) symbol in your find field. Keep hitting return, and you will scroll through the constitutional clauses. PURPOSE OF THE ELECTRONIC ASCII EDITION This electronic text is an ADJUNCT to the text version, not a substitute for it. All the formatting which enhances readability and comprehension, such as bold, italic, different fonts, strikethru text, differing margin sizes, and superscript footnote numbers, are gone from this edition, since the ASCII format does not allow it. Consequently, much of the meaning is lost (the formatting adds another 500K to this document!), meaning which is, as stated before, critical for comprehension. For example, the hard-copy edition uses strikethru type to indicate parts of the 1787 Constitution removed (those words don't even appear here), and boldface type to indicate the terms added by the author (here, the old and new are blended together). However, the search capabilities make up for the loss in readability. READABILITY: 1) This text was set in 10 point Courier with margins set at 0 to 6 inches. You may change this font, but understand that spacing is set with this font and font size in mind. 2) Quote paragraphs are indented with tabs. You can change the tab settings to improve the look of the document. ONE FINAL NOTE TO THE READER: THE PRISONER'S DILEMMA One of the chief goals of this constitution is to solve one of the more critical problems in game theory, and for societies in general, the "Prisoner's Dilemma." This theory, which was formally defined in the fifties by two researchers at the RAND corporation, explains (for this writer) the decay of societies and the the escalation of violence better than almost any other theory extant. It also explains why we HAVE governments, for those of you who were curious regarding this issue, and why a good government is ESSENTIAL for a healthy nation. Because a satisfactory account of this theory would have taken far too many pages in my book, I barely referred to it in the 1992 edition, and assumed, perhaps erroneously, that people were familiar with it. I still do not discuss this theory in Chapter One (choosing instead to focus on more traditional arguments), but could have easily made it the sole topic of discussion in that chapter. Absence of evidence is not evidence of absence: this theory lies in the background behind virtually every significant change I have made to the 1787 Constitution. If you do not understand this theory, I highly recommend the following sources as essential background for further reading, and as an extension to Chapter One. Without an understanding of this underlying problem (a mathematically based problem which locally manifests itself in particular, discrete ways, but globally transcends not only local and national cultures, but also time and space!), there can be no true comprehension of possible solutions. Prisoner's Dilemma by William Poundstone Evolution of Cooperation by Anatol Rapaport Metamagical Themas by Douglas Hofstadter Outline of THE 21ST CENTURY CONSTITUTION SOCIETAL GOALS A MORE PERFECT UNION END AMERICANS TO ESCAPE NATIONAL PRISONER'S DILEMMA MEANS PRIMARY LEGISLATIVE RESPONSIBILITY WELL-FUNCTIONING FEDERAL SYSTEM INSURE DOMESTIC TRANQUILITY END PROVIDE FOR THE COMMON DEFENSE LOW CRIME RATE LOW FEAR MEANS WELL-FUNCTIONING GOVERNMENT (ALL CONSTITUTIONAL PROVISIONS WORKING IN CONCERT) PROMOTE THE GENERAL WELFARE END SECURE THE BLESSINGS OF LIVING TO OURSELVES AND OUR POSTERITY HIGH STANDARD OF LIVING REDUCTION OF WORK HOURS LOW CRIME CLEAN ENVIRONMENT GOOD MEDICAL CARE MEANS WELL-FUNCTIONING GOVERNMENT (ALL CONSTITUTIONAL PROVISIONS WORKING IN CONCERT) ESTABLISH JUSTICE END GUARANTEE FAIRNESS TO THE GREATEST EXTENT POSSIBLE GUARANTEE ALL THE RIGHTS TO WHICH PEOPLE ARE DUE MINIMIZE OR ELIMINATE CORRUPTION MEANS COMPETENT COUNSEL REQUIREMENT PRESUMED INNOCENT REQUIREMENT RIGHT TO PRIVACY DISPROPORTIONATE PUNISHMENT PROHIBITION RELAXED STANDING REQUIREMENT RELAXED JUSTICIABILITY REQUIREMENT EQUAL ACCESS REGULATIONS FINANCIAL DISADVANTAGE CONSIDERATION RE: DATABASE ACCESS CITIZEN VETO POWER FILTERING TAX LIMITATION CHECKS AND BALANCES CITIZEN EDUCATION ENDS INSURE THAT ALL PEOPLE ARE ADEQUATELY REPRESENTED ACCOUNTABILITY MEANS RIGHT TO LEARN TO READ RIGHT TO LEARN TO WRITE RIGHT TO LEARN TO REASON RIGHT TO COMMUNICATE INFORMATION RIGHT TO NATIONAL DATABASE ACCESS NATIONAL DATABASE NATIONAL CHANNEL RIGHT TO HOME EDUCATION GOVERNMENT GOALS POPULAR REPRESENTATION END GIVE ALL AMERICANS A STAKE IN THEIR GOVERNMENT PROPERTY RIGHT: TAXPAYERS SUPPORT GOVERNMENT, HAVE RIGHT TO CONTROL OUTCOMES DERIVED FROM THEIR INCOMES MEANS ANNUAL TERM LEGISLATIVE VETO LEGISLATIVE COMMITTEES ELECTORAL COLLEGE ABOLISHED CONSTITUTIONAL FORMAL RECOGNITION OF WOMEN NATIONAL OBJECTIVE NATIONAL POLL NATIONAL INITIATIVE NATIONAL REFERENDUM RIGHT TO PROPOSE LEGISLATION ACCESSIBILITY OF CONSTITUTION (PLAINLY WORDED) EFFICIENCY END CONSERVE RESOURCES OF TIME AND MONEY MEANS INSURE FISCAL RESPONSIBILITY AUDITOR FLEXIBLE AMENDABILITY TIMETABLES NUMERICAL RATING DELEGATION PROVIDE FOR EFFICIENCY IN GOVERNMENT ELECTRONIC POSTAL SERVICE NATIONAL DATABASE FEDERAL ACADEMY DEFENSE EXPENDITURE CAP INTEGRITY END MAINTAIN CITIZEN CONFIDENCE IN GOVERNMENT MEANS PERFORMANCE RATING RULES FOR THE PROCEEDINGS OF CONGRESS PUBLISH THE VOTING RECORD VOTE-TRADING PROHIBITION DISCREPANCY PROHIBITION EVALUATION LEGISLATIVE REVIEW BOARD SENATE OVERSIGHT ELECTIONS COMMISSION DEPARTMENT OF RIGHTS ENFORCEMENT VERBATIM REPORT REQUIREMENT AUDITOR ETHICS LEGISLATION POTENTIAL MISCONDUCT PROHIBITION LOBBYING RESTRICTIONS TERM LIMITATIONS PROHIBITION OF SIMULTANEOUS POLITICAL PARTY MEMBERSHIP AND GOVERNMENT SERVICE CONSTITUTIONAL GOALS CLARITY END SPECIFICITY/NON-AMBIGUITY MEANS SEPARATION OF POWERS ENUMERATION OF POWERS DIRECT INCORPORATION OF AMENDMENTS ONE-SUBJECT REQUIREMENT INTERNAL RESOLUTION OF INTERNAL INCONSISTENCIES FORMAL RULES OF CONSTRUCTION STATUTORY DEFINITION CONGRESSIONAL DEFINITION HYPOTHETICAL EXAMPLE REQUIREMENT FLEXIBILITY END KEEP CONSTITUTION AND GOVERNMENT CURRENT WITH CHANGING TIMES MEANS POWER TO CHANGE TERMS CONSTITUTIONAL SUPPLEMENT STABILITY END MAINTAIN FORM OF GOVERNMENT MEANS PROVIDE A NOMINATING PROCESS FOR ALL BRANCHES OF GOVERNMENT ENSURE THAT OFFICEHOLDERS ARE ADEQUATELY EDUCATED FOR THEIR POSITIONS ALTERNATE SURVIVABILITY END MAINTAIN FORM OF CONSTITUTION MEANS SENATE OBLIGATION TO OVERSEE CONGRESSIONAL OBLIGATIONS PROVIDE MECHANISMS FOR SELF-ENFORCEMENT IMPEACHMENT PROVISIONS NATIONAL RECALL THE 21ST CENTURY CONSTITUTION Contents Introduction Chapter 1:WHY WE NEED A NEW CONSTITUTION Key terms to search for: establish justice shortcomings in the enactment limited number of representatives non-functionally specialized houses bicameral passage permanently divided against itself delay accountability majority rule rise of the special interests not cost-effective keep laws from being made incumbency effect undue attention to local interests delegation and the escape from the constitution the empirical constitution obsolescence end of the line seniority system Chapter 2: THE 21ST CENTURY CONSTITUTION Article 1: The Legislative Power Section 1: Allocation of Legislative Power Section 2: The House of Representatives Section 3: The Senate Section 4: Regulation of Elections and the Legislative Session Section 5: Rules of Congressional Procedure Section 6: Compensation, Privileges, Restrictions, and Responsibilities Section 7: The Legislative Review Board Section 8: Legislative Procedure Section 9: Powers of Congress Section 10: Obligations of Congress Section 11: The Right to an Education Section 12: Other Rights of the People Section 13: Other Limitations on Federal Power Section 14: Other Limitations on State Power Section 15: Legislative Powers of the People Article 2: The Executive Power Article 3: The Judicial Power Article 4: The Federal Article Article 5: The Amending Power Article 6: The Supremacy of the National Government Article 7: The Constitutional Supplement Article 8: Rules of Construction Article 9: The Ratification Article Chapter 3. EPILOGUE key terms psychological and logical impediments legal impediments to establishing a new constitution the constitutional safety-valve what you can do the benefits of action constitutional criteria Further Reading Selected Bibliography Footnotes Topical Index ======================================================================== INTRODUCTION ======================================================================== "People are not so easily got out of their old Forms, as some are apt 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 introduced by time, or corruption; 'tis not an easie thing to get them changed, even when all the World sees there is an opportunity for it." --John Locke, Second Treatise, 1689 "[A]ll experience hath shown, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed." --The Declaration of Independence, 1776 A Nation $4,000,000,000,000 in Debt. The Purchase of America by Foreign Interests. Toxic Waste Dumps. The Rise of a Monolithic and Unresponsive Government Bureaucracy. The Growing Necessity of a Two-Income Family. Crack Babies. Unemployment. Dominance of Government by the Special Interest Groups. Unnecessary and Cruel Animal Research. A Savings and Loan Crisis. A 30 Percent Functional Illiteracy Rate. An Alarming Rise in Violence and Drug Abuse. Schoolchildren Scanned by Metal Detectors. We have many problems in society, but our worst problem is a seeming inability on the part of our Government to deal with our problems. And yet, our form of government was supposed to remediate our problems. The Preamble to our Constitution states that the Constitution was established in order to, among other things, "promote the general Welfare." Yet a cursory analysis reveals that our Government is falling far short of the mark. Does the existence of a $4,000,000,000,000 National Debt help "promote the general Welfare"? No. Does the purchase of $640 toilet seats by the Pentagon help "promote the general Welfare"? No. Does the failure to prevent the leaching of toxic waste dumps into aquifers help "promote the general Welfare"? No. Does the domination of Congress by special interests help "promote the general Welfare"? No. Unfortunately, these problems (and many, many others) have not only 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." The 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! In fact, the mark of the success of Government was the extent to which it solved those problems. Interestingly enough, the situation confronting the Framers was parallel to our own. They were also faced with a decaying Nation (which, among other things, had a National Debt that could not be paid under the existing Constitution), but their response was different from ours, and definitive; they lost no time in going to the root of their problem, by completely revising the existing constitution (known as the "Articles of Confederation"). Needless to say, this was a controversial approach. In 1787, many had argued that the United States was better off remaining a loose confederation of States, and that a strong National Government was not desirable. To counter this assertion, James Madison, Alexander Hamilton, and John Jay had to devote 36 essays in The Federalist, the political classic written in defense of the 1787 Constitution, to the topic of the inadequacy of the Articles for the Union, and the erroneous nature of the major premise of the supporters of the Articles: that "united we fall, divided we stand." As the authors of The Federalist conclusively demonstrated, the more proper formulation was "united we stand, divided we fall." Due to a phenomenon in game theory known as the "Prisoner's Dilemma" (intuitively recognized by the Framers in their writings), a group of confederated States was doomed to inefficient duplication of resources, an inability to pass legislation for the common good, and a tendency to interstate conflict that could be resolved only by war. The Constitution drafted in the Philadelphia of 1787 was designed to solve the Prisoner's Dilemma problems relevant to 1787 which the Articles did not, and did so -- dramatically. But the 1787 Constitution was not designed to solve the Prisoner's Dilemma problems relevant to 1987, and therefore it should be no surprise that many clauses in the Constitution are no longer relevant for modern times. Nor should it be surprising that the Constitution omits many clauses that are necessary for an Information Age. Designing a political system appropriate for the times is one of the most important tasks a people can 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, careful thought. The Framers of our Constitution were well aware of the enormity of the task they undertook, and fully expected future generations to evaluate their handiwork in the light of subsequent experience -- a task we will undertake here. In Chapter One, Why We Need A New Constitution, we will see why the Constitution drafted in 1787, while adequate in many respects, has ultimately led to the violation of seven critical criteria for a just, efficient, and workable Government -- criteria the Framers themselves saw as legitimate. In Chapter Two, The 21st Century Constitution, the only democratic alternative to the 1787 Constitution authored since 1787 is presented -- a constitution far more likely to satisfy the seven critical criteria enumerated by the Framers than the Constitution they drafted. And finally, in Chapter Three, the Epilogue, we will see how the New Constitution will change life in America, and explore strategies to secure its enactment. Let's begin with an analysis of the adequacy of the Constitution in light of contemporary reality. ========================== CHAPTER ONE ================================ WHY WE NEED A NEW CONSTITUTION ======================================================================== "AFTER 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 subject speaks its own importance; comprehending in its consequences nothing less than the existence of the UNION, the safety 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 The Constitution of the United States, currently residing in a helium- filled glass case in Washington, D.C., was drafted in 1787. The America of 1787, a country with a population nearly half that of the New York City of 1987, was a country predominantly comprised of farmers. For that pastoral time (a time which saw the creation of idyllic works of music like Mozart's Eine Kleine Nachtmusik), the form of Government designed by the Framers was perfectly adequate, allowing America's natural magnificence to blossom. However, as the Third Millennium approaches, more and more Americans are beginning to feel that in many critical respects, our form of Government is now "out of joint" with the times. We have had, in Hamilton's words, "an unequivocal experience of the inefficacy of the subsisting federal government." Our problems have steadily mounted, and it is becoming increasingly clear that our Government will not, or cannot, deal with these problems. Consequently, there has been a noticeable increase in frustration with our political system, as The New York Times reported in 1991: "To many Americans, politics has become remote and sterile, posing false choices. For all the angry abortion debate, as an example, most Americans could probably agree in two minutes on a six-word policy: Discourage abortions but don't ban them. Yet in the political arena, the extremist fury drags on for still more years, oblivious to urgent concerns like the blazing spread of measles. In a sobering new report, the Kettering Foundation's David Mathews cites reaction 'against a political system that is perceived as so autonomous that the public is no longer able to control and direct it. People talk as though our political system had been taken over by alien beings.'" However, dissatisfaction with Government is nothing new in America, since our complaints with Government are structurally based -- that is, societal maladies and unrest have arisen directly from the structure of Government instituted by the Framers. For this reason, historical criticisms appear contemporary. Consider this paragraph, written by Frank Cook (editor of the New York World) in 1923: "The American people were never before so critical of their government as they are now. They were never before so cynical about their government. They rail at the politicians, they jeer at Congress, they blackguard the President, whoever he happens to be, but they never stop to inquire whether their government was established to meet the demands they are making on it. If they did, they 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 function as a political manifestation of democracy. They ask a government of co-ordinate and independent branches to function as a unit. It cannot be done. In spite of all their ardent devotion to the Constitution, it is apparent that they know little about the Constitution. They have turned it into a fetish and they burn a vast quantity of incense before it, but they have forgotten its origins and have lost contact with its purposes. What they think it is, or what they 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." The more things change, the more they stay the same. Complaining about Government has become one of the less enjoyable American pastimes. But as Cook perceptively noted, people have consistently failed to discover the fountainhead of the American pathology. It has been said that the one thing people can learn from history is that people have learned nothing from history, and contemporary experience is providing a ringing endorsement of 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 of deep-rooted troubles: our seemingly intransigent societal ills. THE PREAMBLE AND OUR PROBLEMS "Government deficits, the spiraling imbalance of trade, inconsistencies in foreign policy, illegal immigration, unemployment, 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 system is capable of meeting the challenge of modern government. -- Committee on the Constitutional System We know what the outcomes of a successful Constitution are, since the Preamble to our Constitution states that it was ordained and established "in order to" effect six main goals: "form a more perfect Union," "establish Justice," "insure domestic Tranquility," "provide for the common Defence," "promote the general Welfare," and "secure the Blessings of Liberty to ourselves and our Posterity." Therefore, at least some of the indicators of Governmental success or failure are the extent to which the Objectives outlined in the Preamble have been achieved. This measuring rod established in the Preamble is not flattering to our Constitution: even a cursory analysis of whether or not these goals have been met reveals serious inadequacies. For example, one of the primary goals of the Constitution is to "establish Justice." Justice, of course, must by definition mean justice for all. But as the Brookings Institution Task Force found in their evaluation of the justice system in the area of civil litigation, this goal has not been achieved. In America, "justice" is meted out to those with the most spare time on their hands and the deepest pockets: "In many courts, litigants must wait for years to resolve their disputes. In the meantime, their attorneys pursue ever more expensive means of discovery to prepare for trial, often having to duplicate their preparation when trial dates are postponed. Among the bulk of cases that are never tried but settled, many are overprepared and overdiscovered. In short, civil litigation costs too much and takes too long. The high costs of litigation burden everyone. Our businesses spend too much on legal expenses at a time when they are confronted with increasingly intense international competition. They pass those costs on to consumers, who then pay unnecessarily high prices for the products and services they buy. People who take their cases to court or who must defend themselves against legal actions often face staggering bills and years of delay." Prophetically, Luther Martin, one of the Framers of our Constitution, indicated that this would be a future concern in an address delivered to the Maryland Legislature on November 29, 1787. In that address, Martin referred to an "almost . . . certain prospect of ruin . . . where the middle and common class of citizens are interested . . .", and stated that "the citizen . . . even if ultimately prosperous, must be attended with a loss of time, a neglect of business, and an expense which will be greater than the original grievance, and to which men in moderate circumstances would be utterly unequal." The area of civil litigation, of course, is not the only area where injustice is done. The field of criminal "justice" is a world where the innocent are imprisoned, where people who cannot afford bail are incarcerated for months, and a world where disproportionate and disproportionately applied sentences abound. As Anne Strick reported in her lengthy and extraordinarily detailed book Injustice for All, "Defendants from the world of organized crime are let off five times oftener than are ordinary persons. Black criminals tend to receive prison terms averaging nearly one third longer than whites. Poor defendants serve fully twice as long as those with enough money to hire their own lawyers. Suspects brought into New York's overflowing courts receive lighter penalties than those unlucky enough to be convicted of the same crime upstate." But the failure to "establish Justice" is only one benchmark. A failure to find solutions for the important social dilemmas of the day -- a failure to promote "the general Welfare" -- is another key indicator of structural inadequacy. Consider Hamilton's observation regarding the "inefficacy" of Government. If even the passage of simple laws like the Brady Bill (a measure requiring a seven-day waiting period for the purchase of handguns) presented grave difficulties (as one Representative said, "[i]t has been frustrating taking a simple commonsense measure and having to invest such enormous energy and resources in getting it passed . . . We've had to raise the visibility of this proposal to an unwarranted level in relation to what it can do." ), it should be no surprise that the more problematic issues of the day pose even greater difficulties. A brief survey of contemporary journalism reveals real shortcomings in the enactment of the "general Welfare" Clause. Consider, for example, the environment, and the solution our Government has promulgated to cope with another fine mess we've gotten ourselves into, toxic waste dumps: "The Environmental Protection Agency's 'Superfund,' established a decade ago as the ultimate solution to the nation's toxic waste crisis, is mired in billions of dollars in administrative costs and attorney's fees that threaten to make the program the most expensive public policy fiasco in U.S. history. In dozens of interviews, environmental experts, former federal officials and industrial leaders across the country told of litigation costs so staggering that the final Superfund bill could be double that of the savings and loan debacle. Initially, the Superfund's legislative sponsors expected the cleanup to be accomplished in a single five-year program costing less than $5 billion. Today, analysts predict that the program could balloon to $1 trillion 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 in 'transaction costs' that do not include any spending for actual cleanup. Most of this amount will be for corporate attorneys' fees in thousands of lawsuits. . . . EPA records show that only 33 toxic waste sites have been fully 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 Hirschhorn, an environmental consultant in Washington, D.C., and former chief Superfund researcher at the congressional Office of Technology Assessment. A 1989 study by the office found that overall, '50 to 70 percent of spending in the Superfund program is inefficient.' Many of those familiar with the program say the Superfund was doomed 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, the cost will be at least $2,000 for every American -- reflected in price increases passed along to consumers on countless chemical and petroleum-based products used in every U.S. home -- without even covering the removal of hazardous wastes. . . . Some analysts believe that an immense government bailout -- at direct 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?' asked Carmine Iannuzzi, president of Massachusetts-based Camger Chemical Systems, which made the protective coating for the mustard gas suits worn by troops in the Persian Gulf war. 'It seems like a lot of money has simply vanished without accomplishing anything.'. . . . [A]ccording to chemical industry and environmental group sources, 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 Technology Assessment, legal fees and overhead associated with the Superfund could eventually exceed $200 billion, or 44 percent of anticipated total costs. Other sources say the transaction costs, most of which will be borne by private industry, may equal 60 percent of the total. The most comprehensive independent research analysis of the Superfund is a 1989 Rand Corp. study, which is now being updated. Principal researcher Jan Acton said he could not release the new Rand data, which are scheduled for publication in August, but added: 'The numbers (for attorneys' fees and overhead) could be truly staggering.'" But there are some individuals who enjoy wading in this environmental quagmire -- the attorneys: "It took Dell Perlman 'no longer than my first Superfund negotiating session' 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 scheduled recently at a high school near a contaminated disposal site. 'EPA had to hold it in the gym, because so many people turned out,' said Perlman, who is assistant general counsel for the Chemical Manufacturers Association. 'I looked around the stands, and I realized they were full of lawyers, 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 environmental litigation and issues, up from fewer than 2,000 when the Superfund was created in 1980. . . . Their needs have generated a golden job market where none existed barely, a decade ago. According to the National Law Journal, attorneys six years out of law school who have experience in environmental litigation are being offered salaries of up to $225,000 a year." The Superfund legislation may furnish livelihoods, even upper-class livelihoods, but it is not preventing environmental disasters in the making. For example, the EPA reported in 1991 that 22,650 U.S. plants and facilities released 5.7 billion pounds of new toxic chemicals into the environment in 1989 -- new releases and emissions coupled with Legislative and Judicial delays against combating these emissions means that "projected costs rise with each day spent in court -- rather than at the sites themselves -- as untouched 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 Welfare," our Government maintained for many years the existence of a system itself chronically ill: "The American Health care system is the most expensive in the world, but for those not in its mainstream, the care it offers is among the most unsatisfactory. Americans pay $700 billion a year [and] [l]ife expectancy in the United States is shorter than in 15 other nations, and infant mortality is worse than in 22 other countries. . . . In any two-year period there are 34 million people without health insurance. But the number who lose their insurance at least temporarily is nearly double that many, 63 million. For businesses, tension is rising. Companies watch as health care spending devours ever larger portions of their profits. In the 1960's, businesses spent about 4 to 8 cents of each dollar of profits on health care. 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 a political paralysis can result. In Congress there have been no fewer than 14 proposals to revamp the national system. At the White House, there have been no major proposals, as political specialists wait for the right conservative proposal and the right moment -- just before or just after the election -- to put it forward." In the area of National Defense, another aspect of the "general Welfare," the United States is beset with a military-industrial complex that has failed to "provide for the common defense" in an efficient manner, and has instead given us debacles such as $640 toilet seats, $1,100 stool-leg caps, and $2000 nuts, not to mention pork-barrel spending like the B-1 bomber: "The B-1 was built on time and roughly within cost, but at a terrible price: it doesn't work as promised. Its electronics system can jam signals from the airborne radars of Soviet fighters and missiles, but there are apparently others that the system will not jam without a complete redesign. . . . The B-1 will probably limp along with Band-Aid 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-1 first, then its mission. . . . CONTRACTS NOT AWARDED ON MERIT ALONE. Sometimes the Pentagon or a powerful state delegation wants to keep a failing contractor in business or a production line open. . . . CONGRESSIONAL INTERESTS OVERRIDING DEFENSE. Once the Pentagon has decided on a large program, the contractor can spread subcontracts to key Congressional districts, building an unstoppable constituency. Subcontracts for the B-1 stretched across 48 states. . . ." The B-2, the B-1 replacement, has turned out to be twice the fiasco at four times the cost. The breakdown in the Justice System, the Environment, National Health, and National Defense represent only a fraction of the more obvious symptoms of deeply-rooted structural inadequacies. More subtle and disturbing indicators are on the horizon, like the BCCI and Savings and Loan Scandals, and the failure of banks in general: "As many as 440 banks may fail this year and in 1992, costing the insurance fund $23 billion and leaving it with a deficit of nearly $6 billion next year. [T]he Band-aid solutions being applied, in the form of Treasury borrowing, will do no more than postpone the inevitable bill to taxpayers until after Election Day 1992. 'We're in the grand denial phase, just like 1987 and 1988, when Congress and the Administration did nothing about savings and loans,' said Walker Todd, a lawyer who is on leave from the Federal Reserve Bank of Cleveland to write a book about the Federal Reserve Board. On Capitol Hill, where the House banking committee is to begin drafting legislation Wednesday to lend billions of dollars of taxpayer money to the battered deposit insurance fund, lawmakers are running scared. No incumbent sees anything to gain politically by voting to put more public funds at risk, although everyone recognizes something has to be done to avoid further damage to the nation's financial 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 see the possibility of a repeat performance. . . ." And problems that hit even closer to home are ignored. Alarming statistics have been released in recent years regarding children: 500,000 American children are runaways, 360,000 American children are in foster care, 14,500,000 American children suffer emotional illness or developmental deviations, suicide is the second leading cause of death among children, and 1,000 "crack" babies are born daily. Yet in the face of these appalling statistics, the Legislative Branch has taken no decisive action. Nor has the Judiciary, the protector (in theory) of individual rights. As Judge Charles Gill stated, "It is ironic that, although corporations in the United States have long been held to be 'persons,' and thus are eligible for constitutional protection, the extent to which children, as individuals, have comparable constitutional rights is still not entirely clear." The working-out of ineffectual social policies continues: "In 1989, there were 1,200 babies born in the Yale-New Haven clinic. Ninety percent of those mothers had used illegal drugs during their pregnancies. Fifty percent had used cocaine within forty-eight hours of delivery. Child abuse cases are up eighty-five percent in the last decade. Sexual abuse cases are up 250% in the same period. "Like most states, Connecticut has a child protective agency. The Connecticut Department of Children and Youth Services (D.Y.C.S) has a child abuse hotline number. It is conceded that sixty percent of such calls are not afforded any response. This indicator of social collapse is not confined merely to Connecticut, according to The United States Advisory Board on Child Abuse and Neglect, which concluded that "child abuse and neglect in the United States now represents a national emergency," and made three findings: "1. Each year hundreds of thousands of children are being starved 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 3. The United States spends billions of dollars on programs that deal with the result of the nation's failure to prevent and treat child abuse and neglect." Of course, the "band-aid solutions" America has offered are the only ones it can offer, in a Congressional world where substantive political changes are impossible. This litany of infirmities, and their persistence over time, indicates a causality that is chronic. Something is wrong at the deepest levels of our Government -- perhaps in that glass case in Washington, D.C. Due to these recent developments, it should be no surprise that the focus in the academic world has turned to our political structure. Many academics and former officials of Government have seen the existence of these social developments as symptoms of a disease in the body politic, a disease which is itself rooted in the structure of the 1787 Constitution. Few have stated the 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 devised 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 reorganize its management and procedures, and by the enormous increase in presidential power and prestige." Fortas was seconded by C. Douglas Dillon, Secretary of the Treasury under President Kennedy, who stated that "until we are prepared to examine the basic structure of our federal system . . . our problems will remain . . . and, in all probability, increase in severity. Over time, many in the academic community have attempted to "examine the basic structure of our federal system" and identify the flaws inherent in the 1787 Constitution. To give one example, Whicker, Strickland, and Moore (1987) listed in their book The Constitution Under Pressure five such structural defects: (1) Limited number of representatives results in (a) higher constituent to representative ratios. (b) unreasonable workloads for representatives. (2) Selecting senators on the basis of states (a) violates the democratic criterion of one-person one- vote. (b) malapportionment biases power against citizens from large states. (3) Non-functionally specialized houses (a) leaves citizens unable to effectively disaggregate electorally their policy preferences. (b) undercuts representative responsibility and accountability and leads to single-issue voting. (4) Bicameral passage of all legislation (a) results in lengthy delays in developing programs. (b) creates multiple veto points where interest groups can wield disproportionate power. (5) No hierarchical accountability between the Senate and the House of Representatives (a) undermines long term planning, national interests, and coordination. (b) leads to internal committee specialization which disenfranchises voters from most policy initiation. This list, of course, is only a starting point. In fact, there have been several books and many, many articles on the imperfections of our Constitution. What is interesting is that while there has been disagreement as to which particular structural feature or features are primarily responsible 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 of the Framers, which molded the fundamental shape of our Constitution. THE POLITICAL THEORY OF THE FRAMERS "The very complication of the business, by introducing a necessity of the concurrence of so many different bodies, would of itself afford a solid objection. . . . [a] source of so great inconvenience and expense as alone ought to condemn the project." -- Alexander Hamilton, Federalist 75 The consensus among critics of the Constitution is that many of the ordeals 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 resulted in paralysis and a lack of governmental accountability, and a concomitant inability to prevent social breakdown. This was not completely the fault of the Framers; after all, they were not designing a Constitution for the 21st Century. They were simply trying to create a New Constitution for the 18th Century, since experience with the previous constitution (the Articles of Confederation) revealed fatal flaws in that document. Consequently, our Framers met in the Federal Convention of 1787 to draft a New Constitution for the United States of America. This 1787 Constitution was formed under several new theories of Government -- most notably the Separation of Powers Principle and the need for a Bicameral Legislature -- which Hamilton enumerated in Federalist 9: "The regular distribution of power into distinct departments -- the introduction of legislative balances and checks -- the institution of courts composed of judges holding their offices during good behavior -- the representation of the people in the legislature by deputies 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." In one of the most famous essays in The Federalist, Federalist 51, Madison described how the principle of Government divided against itself into three separate Branches would maintain the integrity of the individual Branches: "To what expedient, then, shall we finally resort for maintaining in practice the necessary partition of power among the several departments, as laid down in the Constitution? . . . [T]he defect must be supplied, by so contriving the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places. . . . [E]ach department should have a will of its own; and, consequently, should be so constituted that the members of each should 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 one of the three Branches of Government, the Legislative (the lawmakers), the Executive (the enforcers of the law), and the Judicial (the determinants of 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 several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The 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 connected with the constitutional rights of the place." The Framers knew that it was not enough to rely on politicians to "do the right thing" and maintain the integrity of the Branches themselves; even the power of voting politicians out of office was not enough to secure the constitutional structure. Thus, the Constitution would contain within itself the means of its self-preservation. Under the Separation of Powers Principle as instituted in the Constitution, each Branch would confront the other. Government was weakened under the divide et impera [divide and rule] maxim referred to by Hamilton in Federalist 7: "This 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. We see it particularly displayed in all the subordinate distributions of power, where the constant 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 interest of every individual may be a centinel over the public rights." Since the nature of the powers were different, the nature of the checks also 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. "[I]t is not possible to give to each department an equal power of self 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 action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit." As if this evisceration of Legislative power wasn't enough to secure the objective of the Framers, the Executive Branch was given what was actually a Legislative power, an overrulable veto, to stop "encroachments" by the Legislative Branch. Thus, the form of Government given to us by the Framers in 1787 was a Legislative Branch divided into two separate Branches, with that Branch checked by a President with veto power, and a Supreme Court with the power (as it subsequently developed) to determine laws unconstitutional -- a Government permanently divided against itself. This 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. THE 1787 SEPARATION OF POWERS AND DELAY "[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 would 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 of Powers Principle as instituted in the Constitution is the Bicameral House -- every law must be passed in identical form by two separate Legislative bodies, a requirement that allows few laws to emerge unscathed. Even in 1776, this notion was seen as counterproductive by an anonymous author, who wrote in "Four Letters on Interesting Subjects" that "The notion of checking by having different houses, has but little weight in it, when inquired into, and in all cases it tends to embarrass and prolong business; besides, what kind of checking is it that one house 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 then 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 through: Whereas, were there a large, equal, and annual representation in one house only, the different parties, by being thus blended together, would hear each others arguments, which advantage they cannot have if they sit in different houses. . . . The chief convenience arising from two houses is, that the second may sometimes amend small imperfections which would otherwise pass; yet, there is nearly as much chance of their making alteration for the worse as the better; and the supposition that a single house may become arbitrary, can with more reason be said of two, because their strength is greater. Besides, when all the supposed advantages arising from two houses are put together, they do not appear to balance the disadvantage. A division in one house will not retard business, 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 though Madison acknowledged that "this complicated check on legislation may in some instances be injurious as well as beneficial . . . ." Over time, a Committee and Seniority System has been created in both houses of Congress which has exacerbated the latent defects of Bicameralism. Under our Bicameral System as it exists in the 20th Century, the delay has been compounded in a way our anonymous author could not have contemplated: "In order for the average bill to become a law it must be: (1) introduced in both the House of Representatives and the Senate; (2) referred by both houses to separate committees where hearings are held and recommendations are made; (3) debated and passed in both chambers; (4) sent to a conference committee if the versions passed in separate houses are different; (5) approved by each house; and (6) signed into law by the president. Some bills, which overlap into more than one committee 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 decentralized system. The multiple decision points through which a bill must pass require majority coalitions at each gate to push the measure 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 and 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. . . . The committees decide which bills will be reported to the floor for debate and which will be placed on the back burner of the congressional agenda. Favorable committee reports do not necessarily ensure the passage of the bill on the floor, but the more favorable the report from committee, the greater the probability for passage. . . . In the Eighty-ninth Congress (1965-1967), 26,566 measures were introduced, 4,200 were reported from committee and 810 became public law. A similar trend continued in the Ninety-seventh Congress: although fewer measures were introduced (only 13,240), 1,877 were reported from committee and 473 became public law. Thus, the committee system as a gatekeeper of what is debated and what is not debated remains extremely important . . ." As Greenberg (1986) noted, confirming the anonymous author of 1776, the Bicameral System inevitably led to the postponement of action, and has even changed the nature of the legislation ultimately passed. The medium doesn't allow every message: "[T]he bicameral nature of Congress and its contrasting constituency bases [Districts vs. States] not only serve to slow down the pace of legislation but also significantly decrease the probability that any general purpose legislation will manage to wind its way to completion. These elements of the constitutional organization of Congress make it halting, conservative, and indecisive. The Constitution further contributes to these characteristics by specifying that 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 sentiment. By its constitutional organization, then, Congress faces barriers to decisive, popular, and unified action." While the Framers approved Bicameralism, they did so with no empirical evidence of its ultimate effects, ultimate effects which were, in fact, seen by them as negative. For example, the result of the Bicameral process was an enfeeblement of Government, and feeble Government was seen as bad Government. As Hamilton stated in Federalist 70, "A feeble execution is but another phrase for a bad execution; and a government ill executed, whatever it may be in theory, must be in practice a bad government." Feeble Government, like a toothless watchdog, would bite neither mailmen nor burglars. What Hamilton wrote in a different context applies equally well to the Bicameral System: "The most to be expected from the generality of men, in such a situation, is the negative merit of not doing harm, instead of the positive merit of doing good." "The positive merit of doing good" was made virtually impossible because of an institutionalized and debilitating delay, a delay which was dangerous even in 1787, a far more relaxed time. As Jay stated in Federalist 64, "They who have turned their attention to the affairs of men, must have 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. To discern and to profit 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, even when hours, are precious." There could be no doubt that the Legislative process, stodgy by nature, would be rendered even stodgier by the Bicameral requirement. According to Justice William O. Douglas, "Legislative power . . . is slower to exercise [than Executive power]. There must be delay while the ponderous machinery of committees, hearings, and debates is put into motion. That takes time; and while the Congress slowly moves into action, the emergency may take its toll." Delay feeds vicious circles, which are vicious enough without help from Government. Unsolved problems mount. A failure to combat drug abuse leads to crack addiction. Crack addiction leads to crack babies. The existence of crack babies leads to a diversion of medical resources to help the babies. In turn, resources need to be diverted to schools to help these children, many of whom are brain-damaged, blind, or otherwise physically or mentally debilitated. Thus, money that could have been used to create positive effects is wasted in attempting to counter negative effects. What most people would see as insane is inevitable, because in Washington, D.C., structural procrastination impedes fundamental action: "A criticism often leveled at the U.S. Congress is its inability to enact legislation concerned with pressing national problems without long, arduous delays. It is not unusual for Congress to adjourn after a long session without having dealt with some urgent matter before it. In past years it has failed, for example, to pass a fiscal year appropriations bill until months after the date when the actual fiscal year began. This lack of action handicaps orderly administration. It is not uncommon for Congress to approve minor, nondivisive measures in every session; moreover, in crises it can act quickly. But often it is unable or unwilling to act on pressing problems unless they reach a crisis stage. . . ." Hazlitt (1942) understood that institutionalizing delay because it was occasionally beneficial was like refusing to teach people to think because some would think about committing crimes: "A nation can erect a complicated set of hurdles and barriers to compel itself to delay decisions, but . . . [b]y the obstacles it erects, it discourages itself from making any new decision, 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. Today, a permanent stasis is apparent in Congress. As Representative Romano L. Mazzoli (D-KY) stated, "There's a frustration level. It doesn't seem like any problem is ever solved around here." Thus, the first defect of the Separation of Powers Principle as instituted in the Constitution is that it creates delay in the face of a necessity for action. But that's only the first problem. THE 1787 SEPARATION OF POWERS AND ACCOUNTABILITY Another problem with the Separation of Powers Principle as it exists under our Constitution is that the division of responsibility as instituted obliterated accountability. This effect was noted by Hazlitt: "Congress can prevent the President from doing as he wishes but cannot make him do what it wishes. Responsibility is divided and lost even within Congress itself. The Senate can block the overwhelming will of the House, though that will may reflect an equal sentiment in the country. Worse, a single Senate committee chairman, chosen by seniority, can often block the expressed will of the House and prevent the Senate from expressing a will by his mere inaction." The result of this system, even in their quiet times, as Bryce pointed out, is that the nation does not know 'how or where to fix responsibility for misfeasance or neglect,' and 'no one acts under the full sense of direct accountability.' According to author Harold Laski, "It is desirable that the source of responsibility for governmental error or wrong should be clear and unmistakable; the American system so disperses responsibility that its detection is approximately impossible. It is urgent that the working of institutions should be conducted in the 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, should be sensitive to the opinion of its constituents, and maximize the opportunity of translating a coherent body of doctrine into statute; yet it seems the purpose of American institutions deliberately to avoid the sensitiveness, on the other hand, and to prevent the making of coherent policy upon the other." Accountability was one of the chief victims of the Separation of Powers principle as it was implemented under the 1787 Constitution. According to Hazlitt, "The great defect of the American system is not merely that it can bring deadlock between . . . the two houses of Congress . . . but that it usually becomes impossible to fix the precise responsibility for that deadlock or to do anything about resolving it." Hamilton viewed this ultimate consequence of the actions of the Framers in a negative light. As he stated with regard to division of responsibility in the Executive Branch, plurality (assigning the execution of a responsibility to two separate people or bodies) would obliterate accountability: "[P]lurality . . . tends to conceal faults and destroy responsibility. . . . It often becomes impossible, amidst mutual accusations, to determine on whom the blame or the punishment of a pernicious measure, or series of pernicious measures, ought really to fall. It is shifted from one to another with so much dexterity, and under such plausible appearances, that the public opinion is left in suspense about the real author. The circumstances which may 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 clearly see upon the whole that there has been mismanagement, yet it may be impracticable to pronounce to whose account the evil which may have been incurred is truly chargeable. 'I was overruled by my council. The council were so divided in their opinions that it was impossible to obtain any better resolution on the point.' These and similar pretexts are constantly at hand, whether true or false. And who is there that will either take the trouble or incur the odium of a strict scrutiny into the secret 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 it is to clothe the circumstances with so much ambiguity, as to 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 influence their interests have been committed to hands so unqualified, and so manifestly improper. . . . [P]lurality . . . tends to deprive the people of the two greatest securities 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 uncertainty on whom it ought to fall; and, secondly, the opportunity of discovering with facility and clearness the misconduct of the persons they trust, in order either to their removal from office, or to their actual punishment, in cases which admit of it." This issue is only too contemporary. Take, for example, the topic of the National Debt. Congress blames the President. The President blames Congress. The House blames the Senate, and the Senate blames the House. The Democrats blame the Republicans, and the Republicans blame the Democrats. Who's at fault? As Woodrow Wilson wrote in 1886: "It is . . . manifestly a radical defect in our federal system that it parcels out power and confuses responsibility as it does. The main purpose of the Convention of 1787 seems to have been to accomplish this grievous mistake. The 'literary theory' of checks and balances is simply a consistent account of what our constitution-makers tried to do; and those checks and balances have proved mischievous just to the extent to which they have succeeded in establishing themselves as realities. It is quite safe to say that were it possible to call together again the members of that wonderful Convention to view the work of their hands in the light of the century that has tested it, they would be the first to admit that the only fruit of dividing power had been to make it irresponsible." Power is divided under our Constitution not only because legislation must pass two separate Legislative bodies in identical form, and not only because legislation must also survive a potential Presidential veto, but because legislation, even if passed, must be enforced by the Executive Branch. In point of fact, passage of legislation is only the first hurdle; in actual practice, laws can be vitiated by an Executive Branch which does not "take care" that laws be faithfully executed, as required by the Constitution. This Accountability violation was reflected in the headline to an article appearing in The New York Times -- "Congress and Administration Trade Blame for Keeping Legislation on Shelf": "Because of bureaucratic foot-dragging, complex directives from Congress and in some cases ideological hostility, the Federal Government has failed to carry out major parts of health, environmental and housing laws passed with much fanfare in recent years. The delays have left Congress stymied, consumer groups frustrated and businesses sometimes paralyzed in the absence of prescribed regulations. . . . Bush Administration officials acknowledge that they have missed many of the deadlines set by Congress for the new laws. But they say 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 recent years. They cite these examples: Two decades after Congress ordered the Environmental Protection Agency to identify and regulate 'hazardous air pollutants,' the agency has issued emission standards for only seven chemicals. In 1987, Congress established a comprehensive program of assistance to homeless people. But recently Federal District Judge Oliver Gasch accused the Administration of a 'complete failure' to comply with the law, saying 'pitifully few' unused Federal properties had been made available to assist the homeless. . . . The Government has yet to issue final regulations for cleaning up waste storage sites under a 1984 law. As a result, thousands of companies are operating 'under a cloud of doubt and uncertainty,' said 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 Wyden, Democrat of Oregon. 'It is extraordinarily frustrating. Contrary to what civics textbooks might suggest, passing legislation today is just the very first step. After that, you have to run through a veritable gauntlet of administrative processes and procedures to get the law carried out.' The Reagan Administration sometimes used administrative delays as a device to enforce its philosophy of less government and to save money, and Congress responded by imposing more specific mandates and tighter deadlines, creating a cycle that aggravated the problem. . . . Congress, lobbyists, the White House and millions of Americans typically 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. James M. Strock, enforcement director of the Environmental Protection Agency from 1989 through this February, said the delays led to a vicious circle: When Congress feels that an agency is is moving too slowly, it sets deadlines. The agency fails to meet them, generating 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 Republicans controlled the White House and Democrats dominated Congress. Regulations can be written to distort or even to thwart the intent of Congress. To prevent such abuse, Congress writes highly prescriptive laws that read like regulations. Even when an agency is eager to carry out a new law, it must negotiate with the Office of Management and Budget, which often demands changes in proposed rules to reduce the cost or to minimize the burden on private industry. Congress itself may not provide the money needed to carry out or enforce a new law. . . . Michael J. Horowitz, counsel to the director of the Office of Management and Budget from 1981 to 1985, said Reagan Administration officials often viewed 'nonenforcement of the law' as an easy way to deal with statutes and regulations they disliked. Federal courts recently criticized the Federal Trade Commission for failing to carry out a simple 1986 law that required health warnings in all advertisements for snuff and chewing tobacco. The commission exempted advertisements on promotional products like T- shirts, beach blankets, baseball caps and coffee mugs. The law prescribed the exact text of the warnings, which said, for example, 'This product may cause mouth cancer.' The F.T.C. argued that people would misread such warnings to mean that T-shirts and beach blankets caused cancer when they were emblazoned with advertisements for tobacco. In a study of the Medicaid program, Eleanor D. Kinney, a law professor at Indiana University, found that Federal officials issued rules rapidly 'to implement executive branch initiatives.' But she said officials were 'quite slow' to publish rules needed to carry out laws opposed by the Administration. Thus, she said, rules intended to save money were issued promptly, while rules expanding health care benefits for children and pregnant women were delayed. . . . Representative Henry A. Waxman, Democrat of California, said, 'The E.P.A. often produces carefully considered regulatory proposals, based 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.'" Note that our current Constitution, as it exists in practice, is in effect a polycameral Government. What began as a separation of powers developed into a blending of powers, with Legislative power gradually coming to be vested in the Executive Branch. This development has led to the demise of yet another critical Principle: the Principle of Majority Rule. THE 1787 SEPARATION OF POWERS AND THE DESTRUCTION OF THE PRINCIPLE OF MAJORITY RULE In our modern century, this "complicated check on legislation" has indeed proven to be "injurious," leading not only to delay and a lack of Accountability, but also to a departure from the central maxim of democracy -- the Principle of Majority Rule: "The inevitable tendency of our system has been 'to widen the gulf between the government and the people, to discourage serious political thinking and debate save at moments of grave crisis, to increase the power of corrupt machine politics, and to cultivate an easy-going indifference to abuses. . . . The existing Constitution, however great its virtues in any particular respect, does not permit of genuine popular government. The rigidity of the electoral system, the divorce of the executive from the legislature, and the well-nigh uncontrollable power of the courts combine to centralize political power in the hands of a comparatively few individuals who are only remotely responsible to the people, and whose acts can be reviewed by the people only at long and fixed intervals.'" The 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." As Whicker (1987) noted, "Bicameralism . . . diminishes accountability and effectiveness by providing several more decision points at which powerful special interests may thwart legislation which actually reflects majority opinion. Bicameralism then serves the interests of powerful, often economically based minority factions, which can muster the money, knowledge 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 societal power structures, and often results in thwarting majority rule." But Hamilton had warned against solutions which violated fundamental maxims: "[W]hat at first sight may seem a remedy, is, in reality, a poison. . . . 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 embarrass the administration, to destroy the energy of the government, and to substitute the pleasure, caprice, or artifices of an insignificant, turbulent, or corrupt junto, to the regular deliberations and decisions of a respectable majority. In those emergencies of a nation, in which the goodness or badness, the weakness or strength, of its government is of the greatest importance, there is commonly a necessity for action. The public business must, in some way or other, go forward. If a pertinacious minority can control the opinion of a majority, respecting the best mode of conducting it, the majority, in order that something may be done, must conform to the views of the minority; and thus the sense of the smaller number will overrule that of the greater, and give a tone to the national proceedings. Hence, tedious delays -- continual negotiation and intrigue -- contemptible compromises of 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 number of votes, kept in a state of inaction. Its situation must always savor of weakness, sometimes border upon anarchy. . . . When the concurrence of a large number is required by the constitution to the doing of any national act, we are apt to rest satisfied that all is safe, because nothing improper will be likely to be done; but we forget how much good may be prevented, and how much ill may be produced, by the power of hindering the doing what may be necessary, and of keeping affairs in the same unfavorable posture in which they may happen to stand at particular periods." Unfortunately, our form of Government has not only allowed a "pertinacious" Minority to stifle Majority preferences, it has actually institutionalized the phenomenon. What at first sight seemed a remedy was, in reality, a poison. The multiple decision points required by the Separation of 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. The Rise of the Special Interests Because the Government is complicated and fundamentally unaccountable, only special interests can afford to get involved in the political system, since the costs of entry are high, and involvement is not cost- effective for the average Citizen: according to John Gardner (Secretary of Health, Education and Welfare in the Johnson Administration), it is a mistake to think of the Federal Government as a unified entity; rather, "[i]t is a collection of fragments under the virtual control of highly organized special interests . . . In the special-interest state that we have forged, every well-organized interest owns a piece of the rock." This consequence was known to the Framers, and was properly feared. In 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. To Madison, preventing the threat of faction control of Government was a key role for any constitution. Amazingly, however, Madison dismissed the most critical problem society would face in one sentence! As Elliot (1985) reported, "What has not attracted sufficient notice about Madison's argument in Federalist 10, however, is the cavalier way in which he dismisses 'minority Factions' as a potential threat to the public interest: If a faction consists of less than a majority, relief is supplied by the 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's argument that popular elections are sufficient to insure that minority interest groups do not pose a serious threat to the public interest is simply wrong. Madison's argument depends on the assumption that majorities will take the steps necessary to inform and organize themselves to protect their self-interest, but this assumption is demonstrably wrong, as Mancur Olson has shown in his recent book, The Rise and Decline of Nations. Madison was wrong because Majority organization is not cost- effective when the benefits of organizing are very slight (i.e., individual Government actions with potential Majority opposition, such as tax loopholes for special interests, result in only a slight cost to individuals who are not a part of the favored Minority) -- and the costs of organizing a Majority around discrete issues are high. No such debilitating effects affect the well-organized special interests, who a) have the funds to organize, b) have a cost-effective financial interest to organize [e.g., a tax loophole can have enormous short-term financial consequences for the special interest], and c) are unified on the issue which most affects them. Compounding these effects, as Elliot further observed, the passage of time has eroded whatever natural checks there were against the ability of special interests to capture the Government: [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 interests among the varying electoral constituencies would prevent any special interest group from exercising undue influence over the government as a whole. . . . The house of Representatives being to be elected immediately 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 common interest to cement these different branches in a predilection for any particular class of electors. The basic institutional checks designed by the framers of the Constitution to limit the power of interest groups have long since eroded. First, the seventeenth amendment provided direct popular election of Senators. Second, the electoral college has now become largely vestigial, so that as a practical matter, the President is also popularly elected. Third, a vast "administrative state" with broad delegated powers has arisen that lies largely outside the system of checks and balances crafted so carefully by the framers. Finally, as both the country and the nature of government have changed, the principle of geographic diversity of interests, upon which the framers placed primary reliance, is no longer as potent a check on the power of special interest groups as it may once have been. Today there are many interest groups that are more or less evenly distributed throughout the country (social security recipients, for example), and they can bring potent electoral pressures to bear on Representatives, Senators, and Presidents alike. The cumulative effect of these changes is to render our political institutions systematically vulnerable to the influence of well-organized, narrowly-focused groups seeking subsidies or other forms of preferential treatment from the federal government. The current deficit is merely the outward symptom of these more fundamental problems, resulting from the way in which our political institutions have evolved." The existence of latent structural flaws became apparent when the Nation began incurring its first serious budget deficits in the late 60's (as a consequence of the Vietnam War). The Government began its slow and inevitable decline, as the special interests began to consolidate their power. By 1978, the systemic nature of our infirmities had become clear, and in November of that year, The New York Times devoted a three-part series to an examination of this breakdown in Government: "John Gardner, the founder of Common Cause, the public- affairs lobby, says the nation is being whipsawed by a multiplicity of special interest groups, resulting in 'a paralysis in national policymaking.' Daniel Bell, professor of sociology at Harvard, said at a recent meeting of the American Jewish Congress: 'Our political institutions do not match the scales of economic and social reality. The national state has become too small for the big problems of life and too big for the small problems.' . . . Tom Hayden says 'You can take any issue you want, and the system isn't delivering. There is no glue holding the country together.' From the White House, Stuart Eizenstat, President Carter's chief adviser for domestic affairs, speaks of 'an increasingly fragmented society.' Disarray in government and dissatisfaction with it have always been part of the American system. John F. Kennedy is remembered, for example, as a forceful, charismatic President but one who was unable to effect relatively mild reforms in the early 1960's after having run on a promise to 'get this country moving again.' . . . [T]here is a consensus that no coalition of interests is strong enough to set priorities for the overall public good to effect reforms that have wide public support, to root out inefficiency and corruption in government programs, and to inspire confidence in political leadership. Many see this disunity as systemic, and therefore separate from, the failures 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. 'I'm not sure anybody could pull this Government together,' Representative Morris K. Udall, Democrat of Arizona, remarked . . . . Congress has decentralized itself until every special interest has access to policy, but the leadership cannot put broad policy objectives into effect. More and more members of Congress see themselves and present themselves as ombudsmen for their states or districts, rather than as representatives trying to effect broad national and foreign policies. . . ." In a telling prediction, Fred Wertheimer, the senior vice president of Common Cause, noted that: "'It is a Congress becoming more and more paralyzed in its ability to make decisions on behalf of all citizens. It is a Congress that in the not-too-distant future will be drowning in special-interest group political money.' On July 19, the House declined to bypass its Rules Committee and vote on legislation to establish public financing of Congressional campaigns for 1980. The Rules Committee, which clears bills for floor action, is opposed to the measure. Another attempt at passage will be made next year. However, some supporters fear that the large amount of money poured into the campaigns of incumbents who won re-election will make passage of the bill even more difficult, and the phenomenon . . . will go on." The cycle of our time is that big business requires big regulation -- but a constitutional structure inadequate for the passage of necessary legislation means that Legislative power must be delegated to bureaucrats; and, since bureaucrats are not accountable in the traditional sense, Congressmen and/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 affairs of powerful economic interests. Over the last 15 years Federal laws and regulations have increasingly put the Government in the business of overseeing or regulating aspects of the automobile, oil, gas, education, and health care industries among others. In turn, each of these interest groups has organized or expanded its effort to influence Government activities at all levels, and the success of those efforts has stimulated the organization of still other lobbies to augment or oppose the presence of the first in Washington. 'We have a fragmented, Balkanized society,' Stuart Eizenstat, President Carter's chief adviser for domestic affairs, has said, 'with an economic proliferation of special economic interest groups, each interested in only one domestic program -- protecting it, having Government spend more for it, unwilling to see it modified.'. . . Tom Matthew, a consultant to several public-interest groups on the political left, says that probably no more than 6 percent of the population is involved in the whole beehive of activity -- from the people sending in contributions to some causes to the people traveling to Washington or to state capitals to do their lobbying. The rest of the population only lives with the results." In what can be referred to as the "pusher" theory of Government, the Incumbents of Congress have themselves created the conditions requiring their intervention: "'The nature of the Washington system is now quite clear, ' Morris P. Fiorina, Associate Professor of Political Science at the California Institute of Technology, wrote in a book published last year, 'Congress: Keystone of the Washington Establishment.' 'Congressmen earn electoral credits by establishing various Federal programs,' Mr. Fiorina wrote. 'The legislation is drafted in very general terms, so some agency must translate a vague policy mandate into a functioning program, a process that necessitates the promulgation of rules and regulations and, incidentally, the trampling of numerous toes. At the next stage, aggrieved and or hopeful constituents petition their Congressmen to intervene in the complex process of the bureaucracy.' 'The cycle closes,' he continued, 'when the Congressman lends a sympathetic ear, piously denounces the evils of bureaucracy, intervenes in the latter's decisions, and rides a grateful electorate to ever more impressive electoral showings. Congressmen take credit coming and going. They are the alpha and omega.'" Under the system of rule by special interests, the Congressman has "two principal functions: to make laws and to keep laws from being made . . . . The first of these he and his colleagues perform only with sweat, patience and a remarkable skill in the handling of creaking machinery; but the second they perform daily, with ease and infinite variety." Congressmen can protect your industry -- for a price. Here are some examples: "-- '[I]t was found in extensive experiments that cash housing allowances worked better in many cities than the cumbersome, costly subsidy programs. But such allowances were not even under consideration, a White House official said, because the commercial and professional interests that feed off the subsidy programs in effect would surely block such a move.' -- 'A number of proposed changes long supported by a majority of the people, according to polls of public opinion, have never been enacted because of special-interest pressure. President Carter sent his tax package to Congress assured, on the basis of polling data, that more than 60 percent of the people favored most of the bill's provisions. But in the House Ways and Means Committee, it was turned 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, intended to save the public money. The American Trial Lawyers Association, whose members earn money for trying negligence suits, set up a political action committee to contribute to Congressional candidates. In 1973, the Senate defeated the measure. Common Cause reported that it found that five Senators who were up for re-election in 1976 switched their votes from 'yes' to 'no' between 1974 and 1975 and, subsequently, received substantial campaign contributions from the lawyers, who poured half a million dollars into the 1976 campaigns and have continued to make contributions. Last summer, the House Commerce Committee killed a no-fault insurance bill by a vote 22 to 19. The sponsor, Representative Bob Eckhardt, Democrat of Texas, said opposition from the lawyers was the chief reason for the bill's defeat.'" The Rise of Special Interests and the Incumbency Effect The rise of Special Interest Rule has created an Incumbency Effect; special interests give money to Incumbents, who sit on the committees affecting these interests. A permanent quid pro quo is established -- votes for contributions. More contributions means a greater ability to defeat challengers. Challengers, who have nothing to "bring to the table," are at a tremendous disadvantage, as Philip Stern noted in The Best Congress Money Can Buy: "In 1986, out of 214 House contests in which the incumbent sought reelection, GE [the General Electric Pac] backed the incumbent in 211 (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 instance where GE backed both the incumbent and the challenger, in only 3 of 214 contests -- 1.4 percent -- did the GE PAC managers find the challenger preferable to the incumbent. It was as if someone from On High had issued instructions: 'Never mind candidates' party affiliation, their attitudes toward big business, or their need for campaign funds. Whatever you do, support the incumbent.' . . . [I]n contests where incumbents were seeking reelection in 1986, PACS overall gave more than 88 percent of their money to them and only 12 percent to challengers." The massive influx of cash worked: in 1986, Incumbents had a 98 percent success rate. Incumbents not only receive money from local interests, 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 PACs' generosity to such an urban representative. His largely big-city district contains, at most, three dairy farmers -- and some 527,000 dairy consumers. Many of the latter have incomes below the official government poverty line and can ill afford to pay the higher dairy prices the government subsidy program almost surely causes. Therefore, in voting for the higher subsidy level, Congressman Frost sided with the three dairy farmers in his district against the interests of the hundreds of thousands of consumers. Why? A relevant factor to consider while pondering that question is the $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. Perhaps the most dramatic charts in Stern's book are charts showing extremely disturbing correlations between funds received from special interests and votes on legislation affecting those interests. For example, here are the correlations between money received and votes cast for dairy subsidies: OF THOSE RECEIVING THIS . . . THIS PERCENT AMOUNT FROM THE DAIRY LOBBY VOTED FOR DAIRY IN 1979 THROUGH 1986 . . . SUBSIDIES IN 1985 MORE THAN $30,000 100 % $20,000 TO $30,000 97 % $10,000 TO $20,000 81 % $2,500 TO $10,00 60 % $1 TO $2,500 33 % ZERO 23 % This effect, visible on recorded votes, must be even more pronounced where the votes aren't recorded -- in discussions after-hours and within the committees. In this manner, the fundamental maxim of Republican and Democratic Government, Majority Rule, has been entirely subverted. THE 1787 SEPARATION OF POWERS AND UNDUE ATTENTION TO LOCAL INTERESTS Delay. Unaccountability. Obliteration of the Principle of Majority Rule. But these are not the only consequences of the Separation of Powers Principle as instituted in the Constitution. In addition, the system as instituted interferes with an essential criterion for a desirable Legislature: that the Legislature take a National, as opposed to a Parochial, view. "One desirable criterion for national legislatures is the ability of both individual members and the institution to take a broad national view of 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 nation. At the same time, a minor benefit for part of the nation should not be purchased at the cost of severe hardship to the nation as a whole. The authoritative allocation of resources often occurs in national legislatures. This is a critical task and when performed poorly can result in waste. In some instances the resources being allocated are scarce. The waste of such resources may inflict harsh costs on a particular segment in a society or on the nation at large. The thoughtful allocation of resources in an efficient manner can make or break the welfare of a nation." The need to restrain the effects of Parochialism were well-known at the Federal Convention. A susceptibility to parochial interests was, indeed, one of the fatal flaws of the Articles of Confederation, as pointed out by Pennsylvania Delegate James Wilson on June 8: "We are now one nation of brethren. We must bury all local interests & distinctions. . . . No sooner were the State Govts. formed 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 stands. Review the progress of the articles of Confederation thro' Congress & compare the first & last draught of it. To correct its vices is the business of this convention. One of its vices is the want of an effectual controul in the whole over its parts. . . . leave the whole at the mercy of each part, and will not the general interest be continually sacrificed to local interests?" But the structure of Government given to us by the Framers did not achieve their stated goal that Government should promote the general welfare, 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, a structural phenomenon leading to Parochialism: "While the national legislature as an entity may receive low popular ratings, it is possible for individual legislators to receive undeserved high ratings from their states or districts. Many of these legislators are reelected and as incumbents appear to benefit from citizen ignorance. Apparently the electorate perceives that the problems with the national legislature are caused by representatives from districts or states other than their own, and legislators often reinforce this view. Due to ignorance, citizens may not discern whether or not their representatives are good legislators who can mobilize support for their bills and pass legislation, thereby solving problems and implementing their objectives. Citizens may also have difficulty identifying merely symbolic action wherein legislators express an opinion but suggest no policy changes, or make statements of policy without sponsoring legislation to implement it. . . . Members may contribute to voter ignorance and apathy in a variety of ways. Legislators may stress voter access and identification with the constituents more than what is going on in the national legislature." Our constitutional structure inevitably leads to Parochialism for another reason -- the delivery of "pork barrel" projects to local constituents: "Congress is often accused of being parochial, reflecting narrowly based constituent interests rather than assuming a national view. . . . One measure of parochialism in Congress is the delivery of pork barrel legislation to congressional districts and states. This may consist of special projects, new programs, or public works or buildings which benefit constituents in a particular geographic region and do not benefit other citizens. The conferment of such benefits is a constant feature of congressional policy making. Particularized benefits 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 allocation. Representatives and Senators view pork barrel legislation as crucial to reelection, a perception which diminishes the incentive among current members to abolish or limit its use. . . ." A process which rewards the creation of "pork barrel" legislation must penalize the creation of legislation in the National Interest, and must inevitably effect the quality of legislation: "Given [the] number of legislative hurdles, important legislation is often 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, sequential, internally specialized, bicameral legislative processes. They often manage to impede or alter bills at veto points along the process. The length of the process is not only ponderous, but in the Washington environment where the interest group legislative 'hunting season' never closes, the long duration of the process increases bill vulnerability to special interest attacks. . . . For example, in 1965 President Lyndon Johnson suggested a bold solution to the problems of crime and poverty in inner-city slums. As the bill was originally drafted, about a dozen cities would have received large sums of money to be spent under federal supervision in order to promote racial integration and renovate the slums. Passage of this program in Congress became a study in compromise. Compromise, in itself, is not an undesirable value, but it can subvert the original purpose of legislation. Proponents of the 'Demonstration Cities' legislation had to compromise extensively. They had to dismiss the goal of racial integration, loosen federal control over the administration of the program, and make more cities eligible to participate (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. . . ." According to Lawrence Dodd, the Constitution lacks a centralizing force which would ameliorate this nascent Parochialism: "The Constitution provides no function or structure to Congress that would create internal congressional incentives supportive of power centralization, coordination, and institutional integrity. It merely assumes that these will be maintained by the natural operation of political life in a simple, agrarian society. When the latter assumption is no longer valid, when it is no longer true that policy problems will be simple and congressional life will draw only a few legislators committed to long-term congressional careers and power, there is no provision within the constitutional system -- no incentive system -- that will lead members naturally to sustain mechanisms of institutional centralization." A Government without a centralizing force is a Government which compromises by passing Bills which benefit local areas, but can only with great difficulty pass Bills in the National Interest. Thus the problems that have resulted from the political theory of the Framers. In review, we find that the Separation of Powers Principle as implemented in the Constitution has made impossible the fulfillment of the Preamble strictures that Government must "establish Justice" and promote "the general Welfare." These two critical criteria have been violated, and so have four other critical criteria: Efficiency, Accountability, Majority Rule, and National Interest Representation. Instead, we universally find in Government Delay, Unaccountability, Minority Rule, and Parochialism. These six criteria violations are serious enough, but there is one final violation -- in fact, the last that will confront any constitution: the violation of the Principle of Constitutional Self-Preservation. The 1787 version of the Separation of Powers Principle, in seeking to preserve the form of Government by crippling Government, made the formation of a subterranean, unconstitutional Government necessary. As Hardin (1987) wrote, "It is not simply that the Separation of Powers leads to deadlock (or gridlock) and stalemate . . . the Separation of Powers poses a deadly danger to constitutional government itself." A Principle meant to preserve the Constitution has led inexorably to its downfall. DELEGATION AND THE ESCAPE FROM THE CONSTITUTION "All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." -- Article One, Section One "A weak constitution must necessarily terminate in dissolution, for want of proper powers, or the usurpation of powers requisite for the public safety. Whether the usurpation, when once begun, will stop at the salutary point, or go forward to the dangerous extreme, must depend on the contingencies of the moment. Tyranny has perhaps oftener grown out of the assumptions of power, called for, on pressing exigencies, by a defective constitution, than out of the full exercise of the largest constitutional authorities." -- James Madison, Federalist 20 Article One, Section One of the Constitution states in no uncertain terms that "All legislative powers herein granted shall be vested in a Congress of the United States . . . ." This reflects John Locke's view, stated in his Second Treatise, that "the Legislative can have no power to transfer their Authority of making Laws, and place it in other hands." This Principle was etched indelibly into our Constitution in Article One, Section One, and was well understood by the authors of The Federalist. According to John Jay, the Framers had "given the power of making laws to the legislature . . .", and Hamilton wrote that "the legislature . . . prescribes the rules by which the duties and rights of every citizen are to be regulated." This was a power that could not be transferred by the Legislative Branch; according to Madison, "[a]s the people are the only legitimate fountain of power . . . it seems strictly consonant to the republican theory to recur to the same original authority . . . whenever it may be necessary to enlarge, diminish, or new-model the powers of government . . . ." Therefore, it was no surprise when Chief Justice Taft stated in 1937 that "it is a breach of the National fundamental law if Congress gives up its legislative power and transfers it to the President, or to the Judicial branch . . . ." Under our constitutional system, there are sound reasons to prohibit delegation of this Legislative power. To permit the concept of Delegation would allow the laws created by delegated authorities to evade the system of Checks and Balances created by the Framers: under a constitution of delegated Legislative authority, the People would have no check against unpopular legislation, a check which was built into the Constitution expressly for that purpose. According to Madison, the Bicameral System instituted in the Constitution would insure that "[n]o law or resolution [would] be passed without the concurrence . . . of a majority of the people . . . ." But lawmaking by an unconstitutional "Administrative" Branch would allow evasion of this Bicameral requirement. If such a Branch were to pass a law that the People did not approve, the People would be helpless, since not only would they not know who voted for the law, there would be no one to vote out, since Administrative officials are appointed, not elected by the People. Furthermore, even if a counter-law were to be passed by the House of Representatives, that counter-law could be checked by the Senate, President, or Supreme Court -- the three checks against popular action in the Constitution. The same would be true were the Supreme Court given Legislative power. Again, any attempt by the People to check Judicial lawmaking[!] directly would itself be checked by the Constitutional 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 commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that 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." But here was the dilemma: a Government must govern, and a constitutionally crippled Government could not constitutionally govern. Thus, a Bicameral Congress hobbled by an institutional delay was forced to delegate its exclusive Legislative authority. With the rise of industry in the Twentieth Century came a veritable explosion of Delegation of Legislative authority by Congress to such entities as the Federal Communications Commission, the Food and Drug Administration, the Environmental Protection Agency, the Interstate Commerce Commission, the Securities and Exchange Commission, the Federal Trade Commission, the Internal Revenue Service, the Occupational Safety and Health Administration -- the list goes on and on. As Justice White noted in I.N.S. v. Chadha, 462 U.S. 919 (1983), "legislative authority is routinely delegated to the Executive Branch, to the independent regulatory agencies, and to private individuals and groups." According to Justice White, "the effective functioning of a complex modern government requires the delegation of vast authority which, by virtue of its breadth, is legislative or 'quasi-legislative' in character . . . ." And though it was the self-appointed umpire of constitutional legitimacy, the Supreme Court nonetheless sanctioned this unconstitutional process: "[T]he Court, recognizing that modern government must address 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 restrictions began disappearing: "Theoretically, agencies and officials were asked only to 'fill up the details,' . . . [i]n practice however, restrictions on the scope of the power that could be delegated diminished and all but disappeared. In only two instances did the Court find an unconstitutional delegation." Delegation mushroomed. Over time, Congress not only forfeited its constitutional role as the exclusive Legislative body, but also the primary Legislative body. As Justice White observed, "The wisdom and the constitutionality of these broad delegations are matters 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 passage of new legislation. For some time, the sheer amount of law -- the substantive rules that regulate private conduct and direct the operation of government -- made by the agencies has far outnumbered the lawmaking engaged in by Congress through the traditional process." What are generally referred to as Administrative "regulations" or "rules" are, 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 regulation of the society . . . ." Justice White wrote that "There is no question but that agency rulemaking is lawmaking in any functional or realistic sense of the term. The Administrative Procedure Act, 5 U.S.C. Section 551(4), provides that a 'rule' is an agency statement 'designed to implement, interpret, or prescribe law or policy.' When agencies are authorized to prescribe law through substantive rulemaking, the administrator's regulation is not only [given] due deference, but is accorded 'legislative effect' . . . These regulations bind courts and officers of the Federal Government, may pre-empt state law . . . and grant rights to and impose obligations on the public. In sum, they have the force of law." Over time, a new Branch of Government was created without the benefit of formal approval by the States or the People as required by the Constitution in Article Five. According to Justice Jackson, "The rise of the administrative bodies probably has been the most significant legal trend of the last century. . . . They have become a veritable fourth branch of the government, which has deranged our three-branch legal theories." On this road there was no terminus. Justice Sutherland, in United States v. Curtiss-Wright Export Corporation, 299 U.S. 304, 327 (1936), "used language implying that there is virtually no Constitutional limit to Congress's power to delegate to the President authority which is 'cognate' to his own constitutional powers.'. . . In brief, the President's duty 'to take care that the laws be faithfully executed' becomes often a power to make the laws." And the Executive Branch did indeed exercise its newly granted power to make 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): "[I]f Thomas Jefferson, James Madison, or any of the other Founding Fathers were to visit us today, they would be . . . shocked by the 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 might use a counterplane to conceal a disordered bed.'" Tugwell (1976) viewed the existence of the "fourth branch" of Government as conclusive proof of the inadequacy of the Constitution, an inadequacy which made escape from the Constitution necessary: "[B]ecause of its own incapacities . . . the Congress has created the regulatory agencies. They are justified by the implication that they are necessary to protect the public. They deny altogether the principle of separation. . . . they carry on highly complicated technical operations and are largely self-governing. Their immense bureaucracies constitute a large part of modern government. Their existence is a constant reminder that escape from the Constitution has been accomplished on a grand scale and without notable objection." Because Congress had delegated its exclusive Legislative authority, a popular backlash arose against Government bureaucracy in the 70's, which led 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 Veto. Utilizing this provision, Congress could delegate Legislative authority, but any law passed by one of the Administrative bodies could be vetoed by either House of Congress. Strictly speaking, the Legislative Veto was unconstitutional, but Delegation itself was unconstitutional, and the Veto attempted to restore some sort of balance. Unfortunately for the Democratic Congress, it decided exercise this power over a Republican Executive Branch. This attempt by the Legislature to check the Executive led the Executive Branch to look for a case it could sponsor for review by the Supreme Court, and hold the Legislative Veto unconstitutional. The Executive Branch found the case -- I.N.S. v. Chadha. And, in one of its least shining hours, the Supreme Court held the Legislative Veto unconstitutional (voiding nearly 200 laws utilizing the Veto in one fell swoop), while at the same time allowing the unconstitutional Delegations to continue! The Supreme Court rejected the Legislative Veto with this reasoning: "[T]he fact that a given law or procedure is efficient, convenient, and useful in facilitating functions of government, standing alone, will not save it if it is contrary to the Constitution. Convenience and efficiency are not the primary objectives -- or the hallmarks -- of democratic government . . . ." The Court, after noting "the obvious flaws of delay, untidiness, and potential for abuse" in our constitutional structure, stated that "[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, inefficient, even unworkable, but . . . [t]here is no 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 . . . ." Yet, in a textbook example of the Supreme Court's selective attention, the Court failed to apply this same reasoning to the Delegation Doctrine! Justice White, dissenting, attacked this Judicial doublethink (reasoning which simultaneously held that agency rulemaking was lawmaking -- and therefore a one-house Legislative Veto DID violate the Bicameral requirement -- AND that agency rulemaking was not lawmaking -- and therefore DID NOT violate the Bicameral requirement!), and pointed out the necessity of escaping from the Constitution: "Without the legislative veto, Congress is faced with a Hobson's choice: either to refrain from delegating the necessary authority, leaving itself with a hopeless task of writing laws with the requisite specificity to cover endless special circumstances across the entire policy landscape, or in the alternative, to abdicate its law- making function to the Executive Branch and independent agencies. To choose the former leaves major national problems unresolved; to opt for the latter risks unaccountable policymaking by those not elected to fill that role." The battle over the Legislative Veto and the general acceptance of the Delegation 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 described, is "self-perpetuating. Once a small commitment is made, it sets the stage for ever-increasing commitments. The behavior needs to be justified, so 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 Government of the United States has become an endeavor far beyond the contemplation of the Framers." Aronson's "self- perpetuating" insight explains this -- people are likely to accept the political status quo simply because they accepted the status quo before. The tendency to accept the accepted is accompanied by the quiescent emergence of rules. New laws are formed. New interpretations are made. New actions are taken. In this manner, where a Government is allowed to "evolve," a Government entirely different from the one first conceived can be established. The Framers of our Constitution were well aware of this Escalation Principle. As Edmund Randolph wrote to the Speaker of the Virginia House of Delegates on October 10, 1787, ". . . a bad feature in government, becomes more and more fixed every day." Madison stated in The Federalist that "abuses . . . of long standing, would [take] deep root, and would not easily be extirpated," and warned that these abuses would provide precedents, each one of which would be "a germ of unnecessary and multiplied repetitions." Thus, these abuses or "usurpations of power" would be "but the first link of a long chain of repetitions, every subsequent interference being naturally produced by the effects of the preceding." Hamilton warned that if "an improper spirit of any kind should happen to prevail" in society, "that spirit would be apt to infuse itself into the new members, as they come forward in succession. The mass would be likely to remain nearly the same, assimilating constantly to itself its gradual accretions." Hamilton reiterated the "germ" metaphor of Madison: "[t]here is a contagion in example which few men have sufficient force of mind to resist." This ability to surreptitiously change the nature of Government through escalation meant that Government would not only shift the allocation of powers through Delegation, but would also gradually assume new powers, powers not accounted for when the terms of office of our representatives and our system of Checks and Balances was established. Due to the Principle of Escalation, people have grown used to usurpations of power by the Government. Whether the issue is PAC money, the shift of Legislative power from Congress to the Presidency and the Supreme Court, the Incumbency Effect, or even unpalatable societal developments like the ever-increasing National Debt, we have become inured to regression. And each acceptance of a small digression from the norm has laid the foundation for our acceptance of future digressions, leading to the emergence of new rules and, ultimately, a new form of Government. THE EMPIRICAL CONSTITUTION "I consider the foundation of the Constitution as laid on this ground: that 'all powers not delegated to the U.S. by the Constitution, not prohibited by it to the states, are reserved to the states or to the people' . . . To take a single step beyond the boundaries thus specially drawn around the powers of Congress, is to take possession of a boundless field of power, no longer susceptible of any definition." -- Thomas Jefferson, 1791 "[I]t exceeds the possibility of belief, that the known advocates in the Convention for a jealous grant & cautious definition of federal powers, should have silently permitted the introduction of words or phrases in a se