June 2015 Archives

An Increasingly Imperfect Union

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             This Fourth of July, as in so many years past, politicians, public figures, and the citizens at large will celebrate the independence of the United States from Great Britain, invoke the inspirational words of the Declaration of Independence, and laud the American experiment as the noblest yet conceived of by man. Yet underneath the platitudes, there is a growing sense of unease. Shrill partisanship and institutional gridlock, as well as intractable economic and social problems, suggest that the 18th century governmental machinery that has guided this country since the ratification of the constitution in 1787 is becoming increasingly sclerotic and unresponsive.


           The Founders of the American Republic, who were inspired by the politics of John Locke, shared his fear of concentrated power. Hence, they devised a constitutional system for the United States in which political power was distributed between the federal government and the individual states. The object, as James Madison commented, was to disperse political power: "The federal Constitution forms a happy combination in this respect; the great and aggregate interests being referred to the national, the local and particular to the State legislatures."


           At the federal level, as a consequence, the government has been divided into three very unwieldy branches. Although each branch has been declared by the text of the constitution to be co-equal, the three branches have very different mandates and in actual practice - as evidenced by number of employees, the resources allocated, and the points of access - they are quite unequal. For those reasons, the exercise of political power, because it is so diffused, is often also unaccountable. In addition, because the process of amending the constitution was intentionally made so cumbersome by the founders, meaningful structural change at the federal level is virtually impossible to effect. 


           To cite only one extreme example that  helps to explain the reasons for the kind of institutional gridlock that now exists in the Congress, each of the fifty states is entitled to two United States senators, irrespective of population. The result of this constitutional arrangement means that today voters in rural America and in less urbanized areas of the country exercise disproportionate political influence over this country's policies and priorities. Hence, for example, the rural and monochromatically white state of Wyoming, with some 582,913 citizens, has the same number of United Senators as the ethnically and economically diverse state of California, which as of 2014 had a population of about 38,000,000 citizens. 


           The growing influence of lobbyists provides additional evidence that the diffusion of power at the federal level, instead of protecting or promoting the interests of ordinary American citizens, has often had the opposite effect from that which Jefferson, Madison and Hamilton imagined: it has permitted the ascendancy of an influence-peddling elite who enjoy virtually unimpeded access to the legislative as well as the executive branches of the government. As of 2013, $3.24 billion dollars was spent by some 12,000 registered lobbyists at the federal level, according to the Center for Responsive Politics, to shape policies and legislation favorable to the interests of their individual clients.


           In 2014 alone, the finance, insurance and real estate interests are reported to have spent $494.34 million in lobbying, the health insurance industry spent $485.35 million, the communication and electronics industries $382.53 million, and the energy and natural gas industry, $345.671. By contrast, organized labor was only able to pony up $ 44.97 million to lobby on behalf of American workers.


           The second branch of the government - the Executive - is equally hobbled by the constraints imposed upon it. Other than the powers expressly granted to the President under Article 2, § 2, as commander-in-chief, and, under § 3 of that same article, to appoint ambassadors and to implicitly conduct foreign policy "with the advice and consent of the Senate," the President's powers over domestic issues are exceedingly limited. Beyond the enumerated powers, and those which some presidents may have arrogated to themselves because of the acquiescence of a timid and craven Congress, "Presidential power is the power to persuade," as presidential scholar Richard Neustadt argued.


           The primary domestic duty of the executive is to enforce the laws of the United States. However, this mandate has often proven to be meaningless in those cases where individuals who were chosen to serve as the executive have been opposed to the enforcement of laws that were enacted to promote civil rights or public health, or have been too politically timid  to reign in the worst excesses of business through administrative regulations.


            Recently, Mark Bittman wrote a column in the New York Times ( "Trust Me. Butter Is Better," June 24, 2015) in which he asked "Why would you buy a processed food that tastes worse than what it was designed to replace, doesn't exist in nature, and helps kill you?" Bittman informed readers that the Food and Drug Administration, an agency of the executive branch of the government, had finally decided to ban food containing trans fats, but only years after overwhelming evidence and litigation made the dangers of those substances clear beyond peradventure. He further noted that "partially hydrogenated oils have benefited no one except their manufacturers and the producers of the junk that includes them" but he lamented that "the three-year phase out means more deaths from people consuming a substance that should have been taken off the market at least a decade ago."


            "Why wait three years?" Bittman asked," Why not get these heart-stopping products off the shelves now, as we do when food is contaminated with E. coli? If the evidence is that trans fats are more harmful than other fats, and other fats exist, why delay? Protecting Big Food's profits is the only possible answer."


            A few years earlier, New York Times correspondent Eric Lipton  ("Safety Agency Faces Scrutiny Amid Charges," September 2, 2007) reported another appalling example that involved a decision by the Consumer Product and Safety Commission in which the agency chose to protect corporate interests to the detriment of consumer safety and the public interest.


            The Consumer Product and Safety Commission was established by the United States Congress in the 1970s in response to complaints concerning consumer safety first revealed by Ralph Nader. In March of 2005, the Commission called together the nation's top safety experts to confront the data which showed that 44,000 children who drove all terrain vehicles were injured the previous year, including 150 fatalities. Based upon her analysis, the agency's hazard statistician, Robin L. Ingle, recommended that sales of these vehicles be banned to children under 16 years of age. However, her recommendation was overridden by the agency's director of compliance, a former lawyer for the ATV industry, John Gibson Mullen, who had been a member of the law firm of the Whitewater and Clinton Special Prosecutor, Kenneth Star. Mr. Mullen was quoted as having said, "My own view is the situation is not necessarily deteriorating. We would need to be very careful about making any changes."


           The federal judiciary, as the third, unelected branch of the federal government in which judges enjoy "life tenure for good behavior," is also a significant part of the problem. In contrast to the the Marshall and the Warren Courts, since the onset of the  Nixon administration, the federal courts have done little except to mirror and to ratify the increasing distance between ordinary citizens and their government. Since the 1970s, led by an increasingly reactionary Supreme Court, the federal judiciary has expressed pronounced hostility toward increased government regulation, enforcement of civil rights laws, and legislation in the public interest. The net effect of this jurisprudence has been to empower corporations and to increase the influence of the 1%.


            The doctrine of "original intent," as conceived by Scalia among other jurists, is especially destructive since that it has been invented solely to thwart the continued evolution of American politics and jurisprudence - by imposing a requirement that all laws must be analyzed within the framework of an eighteenth century worldview. In the guise of a purported respect for the understanding and interpretation of the U.S. Constitution which the Founding Fathers evinced, this doctrine is, in actuality, a most radical form of judicial activism. It ignores the explicit language of  the "necessary and proper clause " of  Article 1,§ 9, c.18 of the U.S. Constitution and it imposes the dead hand of the past, in the form of a fossilized litmus test, upon an instrument which, since the time of John Marshall, had been viewed as a living, evolving document.


            The recent case of  Horne v. Department of Agriculture illustrates the destructive effect of that kind of literalism as the Supreme Court overturned settled regulatory law that during the New Deal was enacted to protect farmers from the volatility of unregulated agricultural markets. Yesterday also, in the case of Michigan v. Environmental Protection Agency, a 5-4 majority of the justices, based upon a cost-benefit analysis, chose to protect the interests of the coal and electric power industries and their right to pollute with  toxic, mercury-laden emissions rather than protect the public health. Once again, the ever petulant and sanctimonious Antonin Scalia opined that, "It is not rational, never mind 'appropriate,' to impose billions of dollars in economic costs in return for a few dollars in health or environmental benefits."


             Previously, in 2008 in District of Columbia, et al v. Heller, another scant 5-4 majority of the court divined to discover a previously unknown constitutional right under the Second Amendment that empowers individuals to possess guns and that, once again, curtails the ability of government to protect the safety of ordinary citizens through regulation in the public interest. Historically, the Second Amendment had universally been construed by the federal courts to grant to the people- collectively and not to individuals - the right to keep and bear arms as members of a well-regulated militia (today's National Guard). However, in the name of an abstract right of the individual right to own a gun, Scalia, joined by his four other ideological fellow travelers, denied the right of concrete human beings - who have died and will continue to die because of handgun violence - to be safe from harm: "We are aware of the problem of handgun violence in this country," Scalia piously intoned, "but the enshrinement of constitutional rights necessarily takes certain policy choices off the table."


          Decades earlier, in the U.S. Supreme Court's 1976 decision in the matter of Buckley v. Valeo, as one of its effects, severely undermined public confidence in the political system. In that decision, the court upheld some modest limits imposed by the U.S. Congress upon individual campaign contributions. More importantly, however, the court held that the campaign contributions by corporations and other large entities were protected by the U.S. Constitution. Congressional attempts to impose restrictions on the financial contributions by corporations and other organizations, because they conflicted with First Amendment guarantees of free speech, would, henceforth, invite strict scrutiny by the court and would require that a compelling state interest had to be shown to pass judicial muster.


           Thirty-four years after the Buckley decision, an even more reactionary court declared any restrictions upon campaign financing by corporations violate the free speech provision of the First Amendment. In the matter of Citizens United v. Federal Elections Commission, Justice Kennedy, writing for the majority in 5-4 decision, reversed two previous precedents which had upheld modest campaign finance regulations. Justice Kennedy opined that the Court had previously recognized that First Amendment protection extended to corporations and that "Under the rationale of these precedents cited, political speech does not lose First Amendment protection 'simply because its source is a corporation;" further "corporations and other associations, like individuals, contribute to the 'discussion, debate, and the dissemination of information and ideas' that the First Amendment seeks to foster."


           By its decisions in Buckley v. Valeo and Citizens United v. FEC, a bare 5-4 majority of the justices of the Supreme Court reaffirmed their theological commitment to Locke's belief that the primary purpose of government is to protect property and its owners above all other rights. Henceforth, corporations and other immortal, non-natural entities, because of their ability to influence political decisions through their wealth and property, have been accorded a constitutional protection to influence the course of government greater than that of mortal, ordinary citizens. As a result of these two decisions, the voices of ordinary citizens and their ability to be heard have been reduced to an almost inaudible whisper in the "marketplace of ideas."


           Finally, at the state and local level, political power in the United States is exercised through fifty state legislatures and executives, and thousands of administrative agencies, commissions and departments. In 2002, there were reported to be 87,525 units of local government. The existence of so many competing and overlapping spheres of political power creates a kind of modern-day feudalism which ensures that the  influence of a few, powerful and connected interests, usually moneyed, will be carefully considered and acknowledged while the ability of ordinary citizens to influence these political entities is negligible. 


            Divided government, with its diffusion of power vertically and horizontally, has contributed to an appalling lack of accountability that enables the office-holders in each of the fifty states and in the three branches of the federal government to point accusing fingers at one another while refusing to accept responsibility for their own decision-making.


             Not surprisingly, the diffusion and distribution of political power within the political system of the United States has today resulted in something profoundly different than what the founders could ever have imagined or anticipated: The liberal consensus that gave birth to the American republic, emerged historically in England as a democratic force to challenge to feudal privilege and the tyranny of kings. But in the United States, where all who have been born are held to be equal before the law and where the Constitution expressly prohibits the granting of any titles of nobility, John Locke's politics has created its own antithesis: rule by oligarchs and corporate plutocrats, in which the rights of the wealthy individuals and their corporations are accorded a greater protection than the rights of ordinary Americans and are protected by a constitutional system that is virtually impossible to change, no mater how desperate the need.


            In contemporary American society, the anti-social individualism that is the essence and legacy of Locke's political philosophy has been given free reign, unencumbered by the restraints, modifications and caveats to which it was subjected in England and in other European political systems. There the ties of the traditional society and medieval ideas which place an emphasis upon cooperation and extol communitarianism have not unraveled and continue to inform and bind the political discourse. As a consequence, in Europe, Locke's individualism was given nuance and context; whereas in America, in the context of the political tabula rasa of the New World, the self has become the avatar.


            The metamorphosis of Locke's politics into the American political psyche and its constitutional system has contributed to the existence of significant institutional and structural problems at the federal, state, and local level. Because Locke's political philosophy has been constructed upon a foundation that recognizes and envisions only solitary selves, a concept of the whole- the public interest, what we owe to one another as citizens - is largely missing from American public discourse. Whether the issue is universal medical coverage, poverty, antiquated labor laws that harm workers and benefit employers, access to education, the need to rebuild our economy and to address decaying infrastructure, the impediments - which are the legacy of Locke's politics -remain: parochialism, special interests, and, all too often, an inability to see beyond the refrain of "What's in it for me?"


             Other vibrant democracies in the Western World have revisited and updated their constitutional schemes of government when the evidence showed that the governmental machinery no longer served the public interest. Why should we be any different?