The Revolution, the Constitution, and America's Third Century, Vols. 1-2: The Bicentennial Conference on the United States Constitution 9781512813951

Table of contents :
Contents
Foreword
Preface
Acknowledgments
Academy Bicentennial Committee
Conference Participants
Dedication and Opening
Opening Remarks at Dedication Ceremony
Dedicatory Remarks at Independence Hall
Introductory Remarks at the American Philosophical Society
Keynote Address
Committee I
Values and Society in Revolutionary America
Maintenance of Revolutionary Values
Report on the Deliberations of Committee
Committee II
Effectiveness of Governmental Operations
Report on the Deliberations of Committee II
Committee III
Shaping of Public Policy
Report on the Deliberations of Committee III
Committee IV
The United States and the World
Report on the Deliberations of Committee IV
The Constitution of the United States of America
Index
Front Matter 2
Contents
Biographical Information on Conferees
Committee I
Committee II
Committee III
Committee IV
Discussion
Committee I–Maintenance of Revolutionary Values
Committee II—Effectiveness of Governmental Operations
Committee III—Shaping of Public Policy
Committee IV—The United States and the World
Notes to Discussion Material
Reflections on the Conference
Index

Citation preview

The American Academy of Political and Social Science

THE REVOLUTION, THE CONSTITUTION, AND AMERICA'S THIRD CENTURY

The Bicentennial Conference on the United States Constitution

Volume I • Conference Papers A social and philosophical examination of the Constitution, its two centuries of influence on American life, and its implications for future generations

Published for the American Academy of Political and Social Science by the University of Pennsylvania Press Philadelphia

Library of Congress Cataloging in Publication Data Bicentennial Conference on the Constitution, Philadelphia, 1976 The Revolution, the Constitution, and America's Third Century; The Bicentennial Conference on the United States Constitution. At head of title: American Academy of Political and Social Science. Includes indexes. CONTENTS: v. 1. Conference papers.—v. 2. Conference discussions. 1. United States—Constitutional law—Congresses. 2. United States—Politics and government—Congresses. I. American Academy of Political and Social Science, Philadelphia. II. Title. KF4550.A2B47 1976 342'.73'029 78-65110 ISBN 0-8122-7763-5

The Bicentennial Conference on the United States Constitution and this report on its proceedings were supported by a generous grant from the Sun Company as a public service

Copyright © 1980 by the American Academy of Political and Social Science All rights reserved Printed in the United States of America

Foreword Chief Justice W a r r e n E. Burger

vii

Preface Marvin E. Wolfgang

ix

Acknowledgments

xi

Academy Bicentennial Committee

1

Conference Participants

4

DEDICATION AND

OPENING

Opening Remarks at Dedication Ceremony Marvin E. W o l f g a n g

11

CONTENTS

Dedicatory Remarks at Independence Hall William H. Hastie

13

Volume I

Introductory Remarks at the American Philosophical Society Herbert Wechsler

17

Keynote Address Louis H. Pollak

25

COMMITTEE I Values and Socicty in Revolutionary America Jack P. Greene

43

Maintenance of Revolutionary Values Alfred H. Kelly and Richard D. Miles

63

Report on the Deliberations of Committee I Paul Bender and Martha A. Field

93

C O M M I T T E E II Effectiveness of Governmental Operations Henry J. Abraham

111

Report on the Deliberations of Committee II James O. Freedman and Frank Goodman

131

C O M M I T T E E III Shaping of Public Policy Charles E. Gilbert

163

Report on the Deliberations of Committee III Gerald Frug and John Honnold

215

COMMITTEE

IV

T h e United States and the World Covey T . Oliver

233

Report on the Deliberations of Committee IV Stephen J. Schulhofer and Noyes Leech

267

T h e Constitution of the United States of America

287

Index

307

In Philadelphia, in the s u m m e r of 1776, Jefferson, Franklin a n d John A d a m s and their colleagues voted to sever the political ties connecting the thirteen English colonies with the M o t h e r C o u n t r y . In justification, b o t h to their fellow citizens and to the c o m m u n i t y of nations, they declared their reasons as well as their independence; they recited the m a n y causes of American dissatisfaction with English dominion, and asserted political " t r u t h s " Americans held to be " s e l f - e v i d e n t . " T h o s e t r u t h s were to be the blueprint of a new n a t i o n : " t h a t all men are created equal . . . endowed by their Creator with certain unalienable Rights . . . Life, Liberty and the pursuit of H a p p i n e s s . " T h e s e t r u t h s h a v e been the lode star of American political values ever s i n c e — n o t always perfectly realized but ever the guide. Sharing these values is essential to the ordered liberty of a democratic society. But more was n e e d e d : a system of political organization allocating a u t h o r i t y a m o n g levels and branches of g o v e r n m e n t and b e t w e e n public and private sectors. Designing that political system was the work of the second g r o u p of extraordinary p a t r i o t s — M a d i s o n , W a s h ington, Ellsworth, James W i l s o n , and again Benjamin Franklin-— meeting in Philadelphia t h r o u g h o u t the hot s u m m e r of 1787, w h e r e they w r o u g h t a Constitution. W e must not underestimate the difficulties s u r m o u n t e d by those delegates in d r a f t i n g a d o c u m e n t that they could agree on. W h e n the C o n v e n t i o n reassembled for the very last time, that great elderly figure, Franklin, attempted to offer some perspective on w h a t had been accomplished as he urged the delegates to sign the d o c u m e n t : I agree to this C o n s t i t u t i o n with all its faults, if they are such; because I think a general G o v e r n m e n t necessary f o r us, and there is no f o r m of G o v e r n m e n t but w h a t m a y be a blessing to the people if well administered, and believe f a r t h e r that this is likely to be well administered for a course of years. . . . I d o u b t too w h e t h e r any other convention we can obtain m a y be able to m a k e a better Constitution. For w h e n you assemble a n u m b e r of m e n to have the a d v a n t a g e of their joint wisdom, you inevitably assemble with those men, all their prejudices, their passions, their errors of opinion, their local interests, and their selfish views. From such an assembly can a perfect production be expected? It t h e r e f o r e astonishes me, Sir, to find this system approaching so n e a r to perfection as it does; and I t h i n k it will astonish our enemies. . . . T h u s I consent, Sir, to this Constitution because I expect no better, and because I am not sure, that it is not the best. T h e opinions I have had of its errors, I sacrifice to the public good. In 1976, to celebrate the bicentennial of the Declaration of Independence, a g r o u p of judges, scholars, political leaders, lawyers and representatives of g r o u p s in the private sector was convened in Philadelphia b y the American A c a d e m y of Political and Social Science. T h e i r charge w a s to reexamine the C o n s t i t u t i o n — t o ask h o w well our

system with its unique federalism has worked, how effectively the United States plays its critical role in the world community, how secure are our liberties, and whether we are satisfied with our mechanisms for separation of governmental powers. These volumes are the record of that Bicentennial Conference. It is a record which includes numerous formal papers and much vigorous debate. Such serious meditation upon American practices and values was not present often enough during the 1976 commemoration of our independence. It is imperative that in these next years preceding the bicentennial of the Constitutional Convention of 1787, we turn to the fundamental question as to how the aspirations of the framers of that great charter of government have been realized. As 1976 was an effort to reflect on the aspirations of the Declaration, the interval between that commemoration and that of 1987 calls for a searching inquiry into how well our Constitution has succeeded. It is not enough that we have functioned longer under the ideals of 1776 and the Constitution of 1787 than any other nation. Is the system of divided, separate powers and functions workable in the complex social, economic and political environment of today and for the future? Is that document and are our practices under it now such that we can weather new storms and stresses and preserve popular government in the face of conflicts arising from our divided and concentrated sovereignty, the strains and contests between the several branches— and ultimately can the system withstand the external pressures of a changing and troubled world? The varied insights of the participants to the 1976 conference of the American Academy of Social and Political Science deserve to be widely canvassed. Many lessons—some of them conflicting—can and will be drawn from these materials. But there is one theme which pervades the entire document. It is a theme stated by Mr. Justice Holmes half a century ago, and it captures the essence of our constitutional history: (W)hen we are dealing with words that also are a constitutent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had created an organism; it has taken a century and has cost their successors much sweat and blood to prove that they created a nation. Washington August 1978

viii

Warren E. Burger Chief Justice of the Supreme Court of the United States

PREFACE Since the American Academy of Political and Social Science w a s organized on 14 December 1889, its p u r p o s e has traditionally been " t o promote the progress of political and social science, especially through publications and meetings." W i t h o u t taking sides on controversial issues, the Academy "seeks to gather and present reliable inf o r m a t i o n to assist the public in forming an intelligent and accurate judgment." For the celebration of the 200th anniversary of independence in 1776, the Academy Board of Directors suggested a very special tribute that would at once promote reflection on our Revolutionary values, h o w they were confirmed later in the United States C o n s t i t u tion, and w h a t lies ahead during our third century. Both intellectual history and f u t u r e public policy were anticipated as m a j o r themes of a conference on the Constitution. T h a t conference took place at historical sites in Philadelphia f r o m 5 April to 8 April in 1976 and may be viewed as one of the most important and ambitious undertakings in the history of the A c a d e m y . Since that time, work has continued to edit the original, solicited papers for each of the four committees, to embellish and d o c u m e n t more substantially the summaries written by our r a p p o r t e u r s , and to edit the transcripts of the four working committees so as to maintain the wisdom, information and prescriptions of the participants while reducing redundancy. W e h o p e — a n d believe—our staff h a s succeeded in presenting these materials in such a way as to retain the dynamic liveliness so evident during the proceedings. Discussion about the Constitution almost invariably invites controversy. T h e stalwart stability of its original language, the flexibility of interpretation, and the capacity of the Constitution to be changed invoke defenders of strict constructionism as well as p r o p o n e n t s of significant alteration to levels of intellectual, literary, and sometimes heated advocacy. The Academy, through this conference, is proud to

have fulfilled its function of providing a forum for some of these debates. Perhaps more consensus than dissension is expressed in these two volumes; a careful content analysis would be required to determine the validity of that assertion. Either way, the bold strength of our country's most important document, and the world's oldest single-document organic law in existence, is reassured through the essays and dialogues that are found here. As President of the Academy, I wish to pay tribute to the essayists, rapporteurs, participants, editors, the Board, the organizing committee and the staff of the Academy. All of these persons are identified elsewhere in these two volumes and do not require repetition here. But it must be said that they collectively are the framers of these documents, that it is their erudition, experience and thoughtful insights about the future to which we are indebted. It is also a special tribute to these contributors that this publication enjoys the esteem and respect offered by Chief Justice Warren Burger in writing the Foreword, for which I and the Board are most grateful. The Academy trusts that the publication of these volumes helps to launch the next decade of intensive and wide public interest in the 200th anniversary of the birth of the Constitution in 1789 and will reinforce the well-traveled course our country has taken to uphold political freedom, liberty for the individual, and the state's concern with the welfare of all its people. Philadelphia, Pennsylvania September 1978

x

Marvin E. Wolfgang President

As with any collective project, many persons have been responsible for the imagination and production of these volumes. T h e Board of Directors, the Bicentennial Committee, the Chairman of the Conference, and all of the participants have been, of course, the major

ACKNOWLEDGMENTS contributors. But special acknowledgment should be made to those who worked directly on the post-conference preparation of these materials. T h e Sun Company deserves our special appreciation for its continued and sustained support, both financially and through encouragement to our staff. Dean Chaapel, especially, has never failed to offer advice and support for the project from its inception to its completion. Varney Truscott, who was our gracious Conference Coordinator, was responsible for the general supervision of these volumes. As principal editor, she oversaw all aspects of their preparation with an intelligent coordination of people, ideas, grammar, and style. T h e editor of The Annals, Richard Lambert, was not only instrumental as an architect of the conference, but was deeply involved in the second round of the editing of these volumes as well. His expert experience is reflected especially in the volume that reports the several committee discussions. Without the help of Robert W . Kotzbauer, who initially edited the committee transcripts, this work would be less lively, less coherent. His contribution has been invaluable to the success of the final production. T h e firm of Lewis and Gilman and its staff were involved from the inception to the design of the printed production. T o all who helped we extend our appreciation. T h e staff of the Academy, Ingeborg Hessler, Doris Mackler and Dorothy Lerner, functioned in most efficient administrative ways to provide support for the conference and the final publication. T h e Academy reaches back to 1 8 8 9 . W i t h the help of many persons who contributed to these volumes, the Academy will reach forward, we hope, to many more generations of students, scholars and all others interested in the dissemination of important political and social ideas. Marvin E. W o l f g a n g President

ACADEMY BICENTENNIAL COMMITTEE CO-CHAIRMEN M a r v i n E. W o l f g a n g , President, A A P S S P r o f e s s o r of Sociology and L a w , University of Pennsylvania Richard D. Lambert, Editor, The Annals P r o f e s s o r of Sociology, University of P e n n s y l v a n i a * Lee Benson, P r o f e s s o r of Historical Social Sciences University of Pennsylvania Joseph S. C l a r k , Former U.S. Senator Philadelphia, Pennsylvania A . Leon H i g g i n b o t h a m , Jr., Circuit J u d g e , U.S. Court of A p p e a l s T h i r d Circuit, Philadelphia* C o v e y T . O l i v e r , Ferdinand W a k e m a n Hubbell P r o f e s s o r of L a w , Emeritus University of P e n n s y l v a n i a * Louis H. Pollak, District Judge, U.S. District C o u r t , Eastern District of Pennsylvania Philadelphia* H e n r y W . S a w y e r , III, Partner, Drinker Biddle & Reath Philadelphia V a r n e y Truscott, C o n f e r e n c e Coordinator, A m e r i c a n A c a d e m y of Political and Social Science, Philadelphia * A t the time of the conference, Dr. Lambert w a s Dean of Instruction and Academic Planning, Faculty of Arts and Sciences; Prof. Benson was Professor of History of the American Peoples; Judge Higginbotham was District Judge, U.S. District C o u r t ; Prof. Oliver was Hubbell Professor of L a w ; and Judge Pollak was Dean and Albert M . Greenfield University Professor of Human Relations and Law, University of Pennsylvania Law School.

CONFERENCE PARTICIPANTS Henry J. Abraham James Hart Professor o f Government and Foreign Affairs University of Virginia Charlottesville, Virginia

John Sloan Dickey President Emeritus Dartmouth College Hanover, New Hampshire

John B. Anderson U.S. House of Representatives Washington, D.C. Paul Bender Professor of Law University of Pennsylvania Philadelphia, Pennsylvania

John Diebold Chairman Diebold Group, Inc. New York, New York Hedley Donovan 3 Senior White House Adviser Washington, D.C. David P. Eastburn President Federal Reserve Bank of Philadelphia Philadelphia, Pennsylvania

Lee Benson Professor of Historical Social Sciences University of Pennsylvania Philadelphia, Pennsylvania

Christopher F. Edley Executive Director United Negro College Fund New York, New York

Sam Brown 1 Director, A C T I O N Washington, D.C.

George C. Edwards, Jr. Circuit Judge U.S. Court of Appeals 6th Circuit Cincinnati, Ohio

Fletcher L. Byrom Chairman Koppers Company, Inc. Pittsburgh, Pennsylvania

Thomas Ehrlich President Legal Services Corporation Washington, D.C.

José A. Cabranes Legal Adviser and Director, Government Relations Yale University New Haven, Connecticut

Daniel J. Elazar Director Center for the Study of Federalism Temple University Philadelphia, Pennsylvania

Joseph S. Clark Former U.S. Senator Philadelphia, Pennsylvania T o m C. Clark Associate Justice (retired) Supreme Court of the U.S. Washington, D.C.

Heinz Eulau William Bennett Munro Professor of Political Science Stanford University Stanford, California

Ruth C. Clusen 2 Assistant Secretary U.S. Department of Energy Washington, D.C.

Richard A. Falk Albert G. Milbank Professor of International Law and Practice Center of International Studies Princeton University Princeton, New Jersey

David Cohen President, Common Cause Washington, D.C.

4

John D. Feerick (American Bar Association) Partner Skadden, Arps, Slate, Meager and Flom New York, New York Martha A. Field Professor of Law University of Pennsylvania Philadelphia, Pennsylvania Adrian S. Fisher 4 U.S. Ambassador to the Conference of the Committee on Disarmament Geneva, Switzerland James O . Freedman 5 Dean University of Pennsylvania Law School Philadelphia, Pennsylvania Henry J. Friendly Circuit Judge U.S. Court of Appeals, 2nd Circuit New York, New York Gerald Frug Associate Professor of Law University of Pennsylvania Philadelphia, Pennsylvania Buell G. Gallagher Vice Chairman, National Board of Directors (Emeritus) NAACP New York, New York Richard N. Gardner 6 U.S. Ambassador to Italy Rome, Italy Charles E. Gilbert Richter Professor of Political Science Swarthmore College Swarthmore, Pennsylvania Edwin L. Goldwasser 7 Vice Chancellor for Research and Dean of the Graduate School University of Illinois Urbana, Illinois

Frank Goodman P r o f e s s o r of Law U n i v e r s i t y of P e n n s y l v a n i a Philadelphia, Pennsylvania Jack Greenberg Director-Counsel Legal D e f e n s e and Educational F u n d , Inc. NAACP N e w York, New York J a c k P. G r e e n e 8 A n d r e w Mellon P r o f e s s o r in t h e Humanities J o h n s Hopkins University Baltimore, Maryland Erwin N. Griswold Partner J o n e s , D a y , Reavis & Pogue Washington, D.C. C h a r l e s V. Hamilton W a l l a c e S. S a y r e P r o f e s s o r o f Government C o l u m b i a University N e w Y o r k , New Y o r k Patricia R o b e r t s H a r r i s 9 Secretary U . S . D e p a r t m e n t of Health, Education and W e i f a r e Washington, D.C. W i l l i a m H. Hastie S e n i o r Judge U . S . Court of Appeals, 3rd Circuit Philadelphia, Pennsylvania Louis H e n k i n 1 0 Harlan Fiske S t o n e P r o f e s s o r o f Constitutional Law Columbia University N e w Y o r k , New Y o r k K e n n e t h Holland President Emeritus Institute of International Education New York, New York J o h n Honnold W i l l i a m A. S c h n a d e r P r o f e s s o r of Commercial Law University of Pennsylvania Philadelphia, Pennsylvania

R. Gordon Hoxie President C e n t e r for the S t u d y o f the Presidency New York, New York

Leon Lipson H e n r y R . Luce P r o f e s s o r o f Jurisprudence Yale University New Haven, Connecticut

C h a r l e s S. H y n e m a n Distinguished P r o f e s s o r o f Political Science, Emeritus Indiana University B l o o m i n g t o n , Indiana

James R. M a n n Former M e m b e r U.S. House of Representatives G r e e n v i l l e , S o u t h Carolina

Albert E. J e n n e r , Jr. Senior Partner Jenner & Block C h i c a g o , Illinois Philip C . Jessup Judge Norfolk, Connecticut Sir O t t o K a h n - F r e u n d 1 1 C a m b r i d g e University C a m b r i d g e , England Evron M . K i r k p a t r i c k Executive D i r e c t o r American Political Science Association Washington, D.C. G e o r g e B. K i s t i a k o w s k y A b b o t t and J a m e s Lawrence Professor of Chemistry, Emeritus Harvard University Cambridge, M a s s a c h u s e t t s Richard D . Lambert P r o f e s s o r o f Sociology University of Pennsylvania Philadelphia, P e n n s y l v a n i a N o y e s Leech P r o f e s s o r o f Law University of Pennsylvania Philadelphia, P e n n s y l v a n i a S u s a n Paris L e w i s 1 2 Vice C h a i r m a n Common Cause Washington, D.C. Sol M . Linowitz S e n i o r Partner Coudert Brothers New York, New York

Bayless M a n n i n g 1 3 Partner Paul, W e i s s , R i f k i n d , W h a r t o n & Garrison New York, New York M y r e s S. M c D o u g a l S t e r l i n g P r o f e s s o r o f Law, Emeritus Yale University New Haven, Connecticut Carl M c G o w a n Circuit J u d g e U . S . C o u r t o f Appeals, D . C . Circuit Washington, D.C. R o b e r t B. M c K a y Director, P r o g r a m on Justice, S o c i e t y and the Individual Aspen Institute for H u m a n i s t i c Studies New York, New York Martin Meyerson President University o f P e n n s y l v a n i a Philadelphia, P e n n s y l v a n i a Constance Baker Motley District Judge, U . S . District C o u r t Southern District, New York New York, N e w York James L. O a k e s Circuit Judge U . S . C o u r t of A p p e a l s , 2nd Circuit Brattleboro, Vermont Covey T . O l i v e r Ferdinand W a k e m a n H u b b e l l P r o f e s s o r of Law, Emeritus University of P e n n s y l v a n i a Philadelphia, P e n n s y l v a n i a

5

Richard L. Park Professor of Political Science University of Michigan A n n Arbor, Michigan

Seymour J. Rubin Professor of Law American University Washington, D.C.

J. R. Pole 1 4 Rhodes Professor of American History and Institutions Oxford University Oxford, England

Henry S. Ruth, Jr. 1 7 Partner Shea & Gardner Washington, D.C.

Louis H. Pollak 1 5 District Judge, U.S. District Court Eastern District of Pennsylvania Philadelphia, Pennsylvania

Stephen I. Schlossberg Director of Governmental and Public Affairs United Auto Workers Washington, D . C . Stephen J. Schulhofer Associate Professor of Law University of Pennsylvania Philadelphia, Pennsylvania

Nelson W . Polsby Professor of Political Science University of California Berkeley, California Robert J. Pranger Director of Foreign and Defense Policy Studies American Enterprise Institute for Public Policy Research Washington, D.C. Sir Leon Radzinowicz Fellow, Trinity College Cambridge University Cambridge, England J. Austin R a n n e y 1 6 Co-Director of the Program for Political and Social Processes American Enterprise Institute for Public Policy Research Washington, D.C. Marcus G. Raskin Distinguished Fellow Institute of Policy Studies/ Transnational Washington, D.C.

Whitney North Seymour, Sr. Senior Partner Simpson, Thacher & Bartlett New York, New York Chesterfield Smith Partner Holland & Knight Lakeland, Florida Elmer B. Staats Comptroller General of the U.S. Washington, D.C. John R. Stark Executive Director Joint Economic Committee U.S. Congress Washington, D.C. Clyde W . Summers Fordham Professor of Law University of Pennsylvania Philadelphia, Pennsylvania

George E. Reedy Nieman Professor of Journalism Marquette University Milwaukee, Wisconsin

6

James L. Sundquist Director of Governmental Studies Brookings Institution Washington, D.C.

Henry Teune Chairman, Department of Political Science University of Pennsylvania Philadelphia, Pennsylvania Alpha Trivette Past National President Future Farmers of America Ladysmith, Virginia Joan S. Wallace 1 8 Director School of Social W o r k Western Michigan University Kalamazoo, Michigan Herbert Wechsler Director, T h e American Law Institute Harlan Fiske Stone Professor of Constitutional Law, Emeritus Columbia University New York, New York Charles E. Wiggins Former Member U.S. House of Representatives Fullerton, California John Minor Wisdom Circuit Judge U.S. Court of Appeals, 5th Circuit New Orleans, Louisiana Marvin E. Wolfgang Professor of Sociology and Law University of Pennsylvania Philadelphia, Pennsylvania Esmond Wright Director Institute of United States Studies University of London London, England J. Skelly Wright Chief Judge U.S. Court of Appeals, D.C. Circuit Washington, D.C.

NOTES At t h e time of the c o n f e r e n c e — •Mr. B r o w n w a s T r e a s u r e r of the S t a t e o f C o l o r a d o . SAss't. S e c ' y . C l u s e n was President of the League o f W o m e n V o t e r s o f the U . S . 3

M r . D o n o v a n was E d i t o r - i n - C h i e f , T i m e Inc., N e w Y o r k .

4

A m b . Fisher w a s Francis Cabell Brown P r o f e s s o r of I n t e r n a t i o n a l Law,

G e o r g e t o w n University, W a s h i n g t o n , D . C . 5

D e a n Freedman was P r o f e s s o r of Law.

6

A m b . G a r d n e r w a s Henry L. M o s e s P r o f e s s o r of Law and I n t e r n a t i o n a l

O r g a n i z a t i o n , C o l u m b i a University, N e w Y o r k . 7

D e a n G o l d w a s s e r w a s D e p u t y Director, Fermi N a t i o n a l A c c e l e r a t o r

L a b o r a t o r y , B a t a v i a , III. 8

P r o f . G r e e n e w a s Harold V y v y a n H a r m s w o r t h Professor of A m e r i c a n History,

Q u e e n ' s College, O x f o r d University, England. ' S e c ' y . Harris w a s a partner in Fried, Frank, Harris, Shriver & K a m p e l m a n , Washington, D.C. , 0 P r o f . Henkin w a s Hamilton Fish P r o f e s s o r of International Law and Diplomacy.

" S i r O t t o w a s A r t h u r G o o d h a r t Visiting P r o f e s s o r of Law at C a m b r i d g e University, England. ,2

M r s . Lewis was a m e m b e r of the A d m i n i s t r a t i v e C o m m i t t e e of the N a t i o n a l

W o m e n ' s Political C a u c u s , New Y o r k . " M r . M a n n i n g w a s President of the Council on Foreign R e l a t i o n s , Inc., New Y o r k . , 4 P r o f . Pole was R e a d e r in A m e r i c a n History and G o v e r n m e n t , Churchill College, C a m b r i d g e University, England.

" J u d g e Pollak w a s D e a n and Albert M . Greenfield University P r o f e s s o r of Human R e l a t i o n s and Law, University of Pennsylvania Law S c h o o l . " P r o f . R a n n e y w a s Visiting Professor of Political Science, U n i v e r s i t y of C a l i f o r n i a , Berkeley. " M r . R u t h w a s D i r e c t o r of Criminal Justice Research of the U r b a n I n s t i t u t e , Washington, D.C. 1 8 D r . W a l l a c e w a s Deputy Executive D i r e c t o r of P r o g r a m O p e r a t i o n s , N a t i o n a l Urban League, Inc., New Y o r k .

Conference Participants

7

DEDICATION AND OPENING

I h e r e b y open our constitutional c o n f e r e n c e , which we have entitled " T h e R e v o l u t i o n , the C o n s t i t u t i o n , and A m e r i c a ' s Third C e n t u r y . " W e are mindful that in this Bicentennial year we celebrate 1 7 7 6 and the Declaration o f Independence. W e are also mindful that R e v o lutionary values o f that year extended to 1 7 8 7 and the later adoption of the United S t a t e s C o n s t i t u t i o n . T h e American A c a d e m y o f Political and Social Science was founded in 1 8 8 9 to p r o m o t e scholarly discussion o f political and social issues. It is most fitting that the A c a d e m y hold a conference on the R e v o l u tionary values that were codified in the principles of the Constitution,

OPENING REMARKS at Dedication Ceremony by Marvin E. Wolfgang and we are gratified that we have been able to bring together a distinguished group w h o s e professional lives, in one way or another, have been concerned with m a j o r constitutional issues. For four days, followed b y our annual meeting, we shall meet here and discuss the m a j o r issues o f the C o n s t i t u t i o n during our history. Representatives from law, academia, g o v e r n m e n t , business, industry, labor, and c o n s u m e r interests will meet here to have a scholarly dialogue to discuss the d e v e l o p m e n t o f the Constitution historically and its viability for A m e r i c a ' s n e x t century. It is indeed my privilege and h o n o r on b e h a l f of the Board of Directors o f the A m e r i c a n A c a d e m y and its organizing committee to welcome the c o n f e r e e s to this m o m e n t o u s meeting. It is fitting that we are here in the hallowed hall o f Independence, where men of m u c h merit made the d o c u m e n t s that have been so important to our history. N o t since that Constitutional C o n v e n t i o n has there been a gathering such as we will b e having here this week. T h e r e are differences f r o m that first Constitutional C o n v e n t i o n . W e represent not political states, but intellectual disciplines and various voices o f the public. W e are m e n and, unlike our predecessors, w o m e n . W e are w h i t e and b l a c k ; our society is composed o f free citizens all, not free and slave. O u r function is to discuss and disseminate, not to create an entirely new document. W e shall question and remold, and our final voices will be guides f o r t h o u g h t and decision, not binding rubrics. But neither the W h i t e H o u s e nor C o n g r e s s n o r the Supreme C o u r t can ignore w h a t is said here. I am indeed proud to present to y o u , f o r the purpose of dedicating this constitutional c o n f e r e n c e , the distinguished Senior United States Judge o f the U n i t e d S t a t e s C o u r t o f Appeals f r o m the T h i r d Circuit here in Philadelphia, J u d g e W i l l i a m Hastie, who will now formally open this meeting on " T h e R e v o l u t i o n , the C o n s t i t u t i o n , and A m e r ica's Third C e n t u r y . "

DEDICATORY REMARKS at Independence Hall b y W i l l i a m H. Hastie

This Bicentennial year is a time for sober reflection upon our national beginnings that centered on the place in which we are assembled this morning. But a nation's beginning is a proper source of reflective pride only to the extent that the subsequent and continuing process of its becoming deserves celebration. The lore of our national beginnings contains many anecdotes. A brief one seems apropos here and now. As the draftsmen of our Constitution, their work almost completed, were leaving this building at the end of a long day, a concerned Philadelphia lady stood outside. Addressing a fellow townsman, she asked: " M r . Morris, is it a good Constitution you gentlemen have drafted?" Mr. Morris answered: " T h a t must depend, madam, upon how it shall be interpreted and applied." Today, informed by the experience of two centuries, our appraisal can and should be less Delphic. As political and social scientists and as citizens largely experienced in the functioning of government, the members of this Bicentennial Conference on the Constitution of the United States bring extraordinary expertise to an examination of the merits and demerits of our 200 years of national becoming and the delineation of paths of constructive change as we enter the third century of our national existence. The elegant brochure prepared for this conference by our host Academy quotes this statement of George Washington to his contemporaries who devised our Constitution: " I do not think that we are more inspired, have more wisdom, or possess more virtue than those who will come after us." W e must prove deserving of that expression of confidence. That will not be easy. Forty years ago, observing the great Depression of the 1930s, an eminent British scholar wrote that, under the American constitutional scheme, the powers delegated to the national government were hopelessly inadequate to cope with the economic realities and exigencies of modern industrialized society. Today, al-

though some still question whether Professor Laski has been proved wrong, more voices—certainly the most vociferous o n e s — a r e heard decrying the present extent, not to mention abuses, of national power. I cite these polar views merely to suggest the inherent nature and difficulty of many of the matters that will confront this conference. T h a t which has been characterized as "government of the people, by the people and for the people" is as eternally difficult a business as it is an exciting and inciting idea. I suppose it is human nature on the one hand and the uses of government on the other that make this so. For men will always yearn, and properly so, for both freedom and provision. And in the yearner's mind the relative importance of each will be a variable of time, place, and circumstance. T o the extent that there is want in the midst of plenty or the potential of plenty, men will demand that government be more effectively organized and act more aggressively for greater provision. On the other hand, to the extent that governmental impositions prove burdensome or oppressive, there will be outcry for greater freedom. T h u s , from generation to generation, it becomes more difficult to satisfy, or even to reconcile, the resulting diversity of deserving, but often contradictory, claims. Yes, our political legacy includes intractable problems. Y e t we continue to believe that the genius of the founders of our nation lay in the devising of political institutions that would both command respect and loyalty because of their decency and exhibit flexibility enough for effective adaptation to the needs of other and different times. For that, we cannot give them too much credit. Yet our belief in the excellence of their work is also the measure of our responsibility to make those institutions serve the people well in our times. M a y enthusiasm for participation in that task be the impelling force of this Bicentennial Conference.

14

INTRODUCTORY REMARKS at the American Philosophical Society b y Herbert Wechsler, C h a i r m a n

President W o l f g a n g , fellow conferees, distinguished guests, ladies and gentlemen: I approach this conference with the high hope that it may make a useful contribution and deem it a great honor to be asked to take the chair. Before committing myself to the silence and abstention that a chairman must observe, may I venture a brief comment on the task we are assembled to discharge.

THE AMERICAN CONSTITUTION T w o centuries of national existence surely call f o r the expressions of devotion they will be evoking throughout this year. O u r meeting may well be unique in choosing to commemorate the Declaration and the patriots w h o gave us independence by focusing attention on the sequel to that indispensable achievement, the framing of the polity and government that have endured. Our concern is, therefore, with the Constitution, whose anniversaries it is less customary to observe, though of all the happenings in Philadelphia its formulation has exerted and exerts the largest influence upon the w e l f a r e and the destiny of our nation. In considering the Constitution, we have before us the rich record of the past with its enormous glories and its large frustrations, not the least of which occurred in the election of a century ago. W e must learn from that rich record what we can, ambiguous as its instruction often is. That is, however, just the prelude of our task, which is to concentrate upon the present and the future. The A c a d e m y , in calling us together, speaks as Antonio, though to a better purpose: " W h a t ' s past is prologue; what to come/Is your and m y discharge." It is, of course, much easier to call for an assessment charter in relation to the present and the future than meaningful response to an assignment of that kind. human situation that we see the present only through

of our basic to frame a Such is the a glass and

darkly; our appraisals of the future rarely involve more than the projection of our hopes or our fears. Added to this, the papers that we have before us cover such a range of problems and of speculations than we all would be hard put to do them justice in a period of months instead of days. In this predicament we must count heavily upon the conferees in each of our committees/ guided by their chairmen and keynoters, to focus upon issues that are truly of a constitutional dimension, in the sense that their solution calls for the approval or rejection of specific changes in our fundamental law. This is no doubt to give voice to a lawyer's bias, but as Woodrow Wilson put it long ago, referring to the Constitution: " a written document makes lawyers of us a l l . " I say no more, however, in support of this suggestion than that it will assist us to achieve the most significant conclusions we can reach in the brief time at our command. Think how it helped the Constitutional Convention to agree upon a text that its deliberations started with the fifteen resolutions moved by Randolph, constituting the Virginia Plan. Needless to say, I do not argue that this conference will not fulfill its purpose unless it achieves agreement on a program of amendment. A consensus in this group against the need for change, assuming that defects have been judiciously identified and gains and losses in removing them judiciously appraised, would be a product as important, in my view, as an agenda for reform. In constitutional affairs as in the rest of life, there is wise counsel in the aperçu of Justice Holmes that "imitation of the past, unless we have a clear reason for change, no more needs justification than appetite."

THE CONSTITUTION AND CHANGE However our task may be defined, and our committees are autonomous as they define it, its performance will require us to feel as free to criticize as to extol the constitutional positions we examine. I should consider this too obvious to say had not m y mailbox told me, as yours may have told you, that there is still a sentiment abroad that it is impious or worse to challenge the perfection of our charter. T h a t sentiment, however patriotic in its provenance and motivation, is hostile to the spirit of the Constitution and refuted b y its text. It is well that we repudiate it now. T h e thirty-nine delegates who signed the Constitution did not think the product perfect, not to speak of the sixteen who departed or declined to sign or the eighteen who stayed away. N o more was claimed for the convention's draft than that it would surmount the weakness of the Articles and lead to the " m o r e perfect U n i o n " that was sought. T h a t " a constitutional door was open to a m e n d m e n t , " as Washington put it in his letters to Virginia, so that deficiencies could be eliminated in the future, was the telling argument against the doubters, crucial to securing the approval here and even more so in the state conventions. T h e Bill of Rights could thus be promised as demand for that security became insistent and provided promptly as

18

Herbert

Wechsler

the government was formed. So, too, the system chosen for electing Presidents could be prevented from collapsing by the 12th Amendment, though, as we know today, not all the perils were removed. To be sure, a great consensus is required for amendment, twothirds of the Senate and the House and approval in three-quarters of the states by legislatures or conventions as the Congress may elect when resolutions are proposed. A less onerous procedure would, of course, have paid more deference to Jefferson's insistence that the "earth belongs always to the living generation," the premise of the Declaration's proclamation that governments derive "their just Powers from the consent of the governed." The revolutionaries in the Constitutional Convention could not have been insensitive to that conception, but neither could they yield to it entirely and create a government that would achieve acceptance by the states and gain sufficient strength to last. They had no choice, therefore, but to impose their present in such large degree upon the future, hoping to obtain its acquiescence by the benefits conferred. We may consider that the hope was not misplaced, for we have had our peaceful revolutions, starting, as Jefferson maintained, with his election as the President but more persuasively, I should suppose, in later years. It is important, though, that we remember that the most transforming changes in the cosmos of the Constitution were produced by civil war. That cataclysm notwithstanding, we should recognize that the amending clause, which gives this conference its meaning, represented a significant advance in thought about the nature of organic law. In New Jersey, New York, and Virginia, the first constitutions after independence made no provision for amendment, as there was none in Cromwell's Instrument of Government of 1653. Delaware, Georgia, Maryland, Massachusetts, and Pennsylvania did formulate procedures for revision, but only that of Maryland seems viable upon its face. The Articles, as is well known, conditioned change on the consent of all the states. The framers' plan was, thus, an innovation in support of adaptation, stringent as its requirements may be. That stringency is not without its compensations, for it has contributed to our acceptance of the most distinctive feature of our public law, the scope afforded to revision by interpretation: primarily, of course, interpretation by the courts, with final judgment in the Supreme Court, but also in some part by the Executive and Congress. Bagehot's famous dictum that "the men of Massachusetts could work any constitution," which Wilson properly regarded as a tribute to Americans in general, is supported mainly by the adaptations nurtured in this way. That record is, of course, before us as we move to our deliberations. There are problem areas in which we may consider that the right solution inheres in interpretative changes as distinguished from revision of the text. Such submissions are, of course, in order, and they have the virtue of reducing or eliminating drafting difficulties that might otherwise be fatal. At the risk of being labeled a misogynist, I

Introductory Remarks

19

refer to the pending Equal Rights Amendment as very possibly a case in point.

INTRODUCTION OF COMMITTEES I have spoken of the task we have assumed and of the spirit in which I believe we should approach it. That is all an introduction should attempt to say, and I shall say no more. Dean Pollak, who will shortly give the keynote speech, will speak to the substance of the problems that we have before us. Before I call upon Dean Pollak, I would like to introduce the presiding officers of each of our four committees and the authors of the papers that they have before them as a basis for discussion. They are the people who have planned the working sessions of our meeting and will take the lead in their deliberations. Committee I, with its suggested focus on the "Maintenance of Revolutionary Values," has for its presiding officer Patricia Roberts Harris, and I must confess that I am not quite sure if I should introduce her as professor, dean, ambassador, commissioner, or something else. All of those titles have been hers in a career of great distinction in legal education, government service, philanthropy, business and community service, as well as in the practice of the law. The keynote paper for Committee I was originally assigned to Professor Alfred H. Kelly of Wayne State, whose sudden and untimely death deprived us of a valued friend and depleted our scholarly resources. Much of his paper had fortunately been completed by the time of his attack, and, thanks to his wife and his associate, Professor Richard D. Miles, the submission is before us. It is buttressed by a second paper by another distinguished historian, Professor Jack P. Greene of John Hopkins, presently visiting at Oxford as the Harmsworth Professor of American History. Professor Greene has come to us from England and will make the keynote presentation in Committee I. Committee II will center its attention on "Effectiveness of Governmental Operations." Its chairman is Professor Nelson W . Polsby, a distinguished political scientist, now at the University of California in Berkeley. The author or editor of many works related to our subject and managing editor of the Political Science Review, he has thought long and hard about our governmental institutions, with special emphasis perhaps upon a subject that arouses a slight interest in our time, the relationship of President and Congress. The keynote paper for Committee II was prepared by Professor Henry J. Abraham, the Henry L. and Grace Doherty Professor of Government and Foreign Affairs at the University of Virginia. A perceptive student of governmental processes, with special interest perhaps in the judicial, Professor Abraham established his academic reputation at the University of Pennsylvania before succumbing to the gentle graces of Charlottesville. The emphasis suggested for Committee III, "Shaping of Public Policy," may overlap somewhat that assigned to Committee II, but

20

Herbert

Wechsle

that is no disaster. O u r chairman is the distinguished Comptroller General of the United States, the Honorable Elmer B. Staats. After important service in the executive office of the President, including many years as Deputy Director of the Bureau of the Budget, he was entrusted in 1 9 6 6 with the immense responsibility of directing the General Accounting Office, established by Congress as an organ of the legislative branch. If there is such a thing in the United States as a senior career public administrator, surely it is he and we are grateful for his presence. T h e basic paper for Committee III was prepared by Professor Charles E. Gilbert of Swarthmore, a political scientist with broad, eclectic interest in the problems of self-government, who has written with great insight on many aspects of the subject. He has attempted to provide in his exhaustive paper a guide to the enormous academic literature bearing on this subject during recent years. Finally, Committee IV has for its subject " T h e United States and the W o r l d . " Its chairman, Adrian S. Fisher, was until recently Dean of the Georgetown University Law Center, where he is now Francis Cabell Brown Professor of International Law. Before he took the academic veil, he had had a distinguished career in law and government, including periods of service as general counsel of the Atomic Energy Commission, legal adviser of the Department of State, Deputy Director of the U.S. Arms Control and Disarmament Agency, general counsel to the Washington Post and, last but by no means least, chief reporter for the Restatement of the Foreign Relations Law of the United States of the American Law Institute. T h e issues paper for Committee IV was prepared by Covey T. Oliver, Hubbell Professor of International Law at the University of Pennsylvania. Professor Oliver's career also combines distinguished academic contributions and important public service, including two years as ambassador to Colombia and two more as Assistant Secretary of State for Inter-American Affairs and U.S. Coordinator of the Alliance for Progress. Among his publications, I note with special pleasure that he collaborated with Professor Fisher on the Restatement of the Foreign Relations Law. I wish that time permitted introduction of our conferees, on whom the ultimate success of our venture most depends, but that would plainly be impossible. It is appropriate, however, that I should present the ranking member of the conference, Mr. Justice T o m C. Clark, whose eighteen years of service as an Associate Justice of the Supreme Court of the United States, not to speak of the manifold good works to which he devotes his retirement, merit the thanks of the Republic. W e come now to the main event of our morning, the keynote of the conference, which will be sounded by Dean Louis H. Pollak of the University of Pennsylvania Law School. Dean Pollak is a native of New Y o r k , the son of a distinguished lawyer who was much concerned with civil liberty and justice when such concern was not the

Introductory Remarks

21

fashion of our bar. His own career has carried forward that tradition both in practice and in teaching, including almost twenty years at the Yale Law School, five of them as Dean. Two years ago he moved from Yale to Pennsylvania as the Albert M. Greenfield Professor of Human Relations and Law. Then, as if to illustrate the legend of Samarra, the fate that he believed he had escaped in New Haven befell him in Philadelphia, where he again has become Dean. Louis Pollak is a profound scholar, an able and compassionate lawyer, an ardent citizen and public servant, and withal an unpretentious and delightful man.

22

KEYNOTE ADDRESS by Louis H. Pollak It w a s p r o p e r — i t w a s n e c e s s a r y — t h a t the first session of this conference took place at Independence Hall. That spare and tranquil house across the green is a home place not alone f o r Americans but f o r all those w h o " h o l d these truths to be self-evident, that all men are created equal, that they are e n d o w e d b y their C r e a t o r with certain unalienable R i g h t s , that among these are Life, Liberty, and the pursuit of H a p p i n e s s . " J e f f e r s o n , Franklin, J o h n A d a m s , and the others w h o signed the Declaration w e r e not preachers or publicists. T h e y w e r e leaders and doers, persons trained to accountability and action. T h e y knew that it w a s not enough to assert self-evident truths and unalienable rights, and thereby to proclaim liberty throughout the land. T h e y k n e w that " t o secure these rights, G o v e r n m e n t s are instituted among M e n , deriving their just P o w e r s f r o m the consent of the g o v e r n e d . " S o on behalf of the confederation of f r e e states they constructed a C o n g r e s s which had the appearance of a national g o v e r n m e n t — b u t on which no effective p o w e r to g o v e r n w a s conferred. C o n g r e s s , assembled in Independence Hall, strove ineffectively, and within a decade the " A r t i c l e s of Perpetual U n i o n " wasted into inanition. W h e r e u p o n , M a d i s o n , Franklin, W i l s o n , W a s h i n g t o n , and the rest repaired again to Independence Hall. A n d there, " i n O r d e r to f o r m a more perfect U n i o n , " they drafted and called upon their fellow citizens to " o r d a i n and establish this C o n s t i t u t i o n . " It is this C o n s t i t u t i o n — a m e n d e d , and thereby enlarged, and yet in its central elements intact—which w e are assembled to discuss f o r these f o u r d a y s . H o w do w e address ourselves to our agenda? W e gathered first in reverence at Independence Hall, d r a w i n g inspiration f r o m that place and f r o m the moving w o r d s of the v e r y great l a w y e r and judge w h o dedicated our humble labors to the monumental labors which w e n t before. Listening to J u d g e Hastie, one remembered that the second

purpose of the Constitution, following on the formation of " a more perfect U n i o n , " was " t o . . . establish Justice." And one felt again the force of Holmes's dictum that "continuity with the past is not a duty, it is only a necessity." I think our first undertaking here in the Philosophical Society should be to come to terms with that past, to see if we can reach agreement on what the enduring values and structures are that still connect us with the business taken in hand by the American people two centuries ago. But I doubt that we could have pursued that inquiry in an expeditious and effective way if we had begun our working sessions at Independence Hall. It is not simply that for us to deliberate where they deliberated would have been presumptuous. It is that, had we lingered in the house across the green, our search for the past would have been trammeled by the overwhelming symbols. W e would have engaged in unequal dialogue with that past. W e are better met on ground less hallowed—but venerable enough: in this house where Franklin still presides. I propose that we take active steps to put ourselves in appropriate relation to our beginnings and our growing years before attempting to assess our present condition. T h e catalytic Declaration and the lasting Constitution establish the legitimacy of the work we are to undertake. But, unexamined, they shed little light on the paths we can most usefully pursue. T h e Constitution is with us still, not simply because it has no term of years and no later plebiscite has replaced it with another document. T h e Constitution is with us still because the Declaration summoned it forth to accomplish the Declaration's unfinished purposes. T h e Constitution, Marshall wrote, was "intended to endure for ages to come. . . . " But, unlike the "perpetual" Articles of Confederation, it has no claim on perpetuity except as it continues to fulfill the " t r u t h s " accepted in 1 7 7 6 by three million white colonists of Western European ancestry. And that continuity of fulfillment, 200 years later and in the century to come, depends on the continuing will to freedom in 1 9 7 6 , and afterwards, of 200 million Americans of all colors and cultures, and four billion others with whom we share the Earth. I press the point that as a first order of business we should consider the Constitution-in-process—that is, how our constitutional arrangements have carried us to where we now are—before we can fairly measure the effective congruence of the present Constitution with the vision of those who declared independence. In urging this, I have in mind an admonition voiced by Holmes, speaking for the Court, in 1 9 2 0 — a n admonition which, if some greet it as platitude today, merely bears witness that we as a nation are slowly acquiring a better understanding of our dominant legal processes than prevailed before Holmes began to cut away the undergrowth which obscured the path of the law. Herewith, Holmes, in Missouri v. Holland, laying the foundation for a construction of the treaty power broad enough to achieve the needs of a great nation:

26

Louis H. Pollak

[W]hen we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had created an organism; it has taken a century and has cost their successors much sweat and blood to prove that they created a nation. Holmes, born in 1841, was in his eightieth year when he wrote those haunting sentences. They move us still because they are instinct with his own experience. His sweat and blood were spent at Ball's Bluff, at Antietam, and at Fredericksburg. Those battlefields were part of the Constitution which he wrought from 1903, when he came to the Court, to 1932, when he gave place to Cardozo. Holmes and his contemporaries lived the middle of our history. One of that sturdy company—Jeremiah Smith, born when Van Buren was President—came singularly close to linking our century with our nation's beginning. Judge Smith was the erstwhile New Hampshire Supreme Court justice whom President Eliot transformed into a professor in 1890, and who then taught for twenty years. I still recall my father's fond recital of how, one spring morning in the first decade of this century, Judge Smith walked into his classroom in Austin Hall rather more slowly than was his wont, put his books on the lectern, and said gravely: "Gentlemen"—the honorific apostrophe which is today happily obsolete in every American law school— "Gentlemen, I must apologize if I seem somewhat subdued this morning. This is a sad day in my family's history. This is the onehundredth anniversary of my brother's death." Judge Smith apparently refrained from burdening the embarrassed young gentlemen with the further information that his father, the first Judge Jeremiah Smith, had been wounded at the Battle of Bennington in 1777. No one at this conference, I think, has memories that antedate this century. We, and the people of this nation generally, know America's prior history only at second hand. In this Bicentennial year, we are nearing what Charles Black has called "the beginning of our third life . . . the day when no one is left who was alive when someone still lived who was born before our Constitution came into being." It is against this fact that I ask us to try collectively to repossess some fragments of our past before we contemplate our present and our future. How is this to be done? I wonder if we may take counsel now with Franklin, who so benignly watches over us. I venture the guess that Franklin would be with us in person, if he could, this morning. To be sure, Franklin did not burden posterity, as Bentham did, with the requirement that he be kept in a glass case and produced on ceremonial occasions. But Franklin was equally mindful of the future and equally curious about it. Witness a letter to his friend, Barbeu Dubourg, written in 1773, in which Franklin was responding with interest to Dubourg's speculations about the possibility that

Keynote Address

27

people struck dead by lightning could be restored to life. First, Franklin referred to accounts of toads, trapped in sand, revived years and even ages later; next, he wondered whether delicate plants, uprooted for shipment overseas, might be immersed in mercury and thereby kept alive during a long ocean voyage. Then Franklin said: I have seen an instance of common flies preserved in a manner somewhat similar. They had been drowned in Madeira wine, apparently about the time when it was bottled in Virginia, to be sent hither [to London]. At the opening of one of the bottles, at the house of a friend where I then was, three drowned flies fell into the first glass that was filled. . . . In less than three hours, two of them began by degrees to recover life. They commenced by some convulsive motions of the thighs, and at length they raised themselves upon their legs, wiped their eyes with their fore feet, beat and brushed their wings with their hind feet, and soon after began to fly, finding themselves in Old England, without knowing how they came thither.. . . I wish it were possible, from this instance, to invent a method of embalming drowned persons, in such a manner that they may be recalled to life at any period, however distant; for having a very ardent desire to see and observe the state of America a hundred years hence, I should prefer to any ordinary death, the being immersed in a cask of Madeira wine, with a few friends, till that time to be then recalled to life by the solar warmth of my dear country! Even as a dreamer Franklin was a pragmatist. " A hundred years hence"—except when computing compound interest—was as far a horizon as Franklin cared to look to. But at least this suggests that he would have been willing to meet us halfway. T h e 100 years he proposed were the very 100 years which, in Holmes's retrospective view, were required to "create a nation." And I put it to you that before we commence the discussion of America in 1 9 7 6 , we ourselves might derive advantage from a perspective taken in middle course. I propose, therefore, that, as predicate for our own bicentennial perspective, we make a brief survey of the American political enterprise, as Franklin might have surveyed it 1 0 0 years after his death. Franklin died in 1 7 9 0 , one year after Washington was inaugurated and the First Congress set to work. It was almost as if the good doctor had willed himself to stay alive until the Constitution had taken hold. Let us then suppose that Franklin's 1 7 9 0 casket was a cask of Madeira from which he was to be decanted a century later. Franklin in 1 8 9 0 might have raised himself on his legs, wiped his eyes, and announced his readiness to finish out the last years of the 19th century in the "solar warmth of [his] dear country." And if, to begin his reacquaintance with his countrymen, he had looked

28

Louis H. Pollak

b a c k — t h r o u g h a glass, darkly, as it w e r e — o n the ten decades since his initial death, w h a t chiefly would have engaged his scientific scrutiny? T h e events of the first decade would have interested Franklin, but not greatly surprised him: the establishment of the government departments, and of the federal courts; the adoption of the Bill of Rights; the debate over the First Bank; the W h i s k e y Rebellion, and the campaigns against the frontier Indians; W a s h i n g t o n ' s ambivalence about furnishing Congress all requested information; the schism between the Hamilton and Jefferson factions, paralleling the war between Britain and France; the reluctance of the judges to advise the government on legal matters, or to become entangled in other nonjudicial responsibilities; the election of John A d a m s ; the Alien and Sedition Acts; and Madison's Kentucky and Virginia Resolutions. At the commencement of the 19th century, Franklin would have seen the emergence of two instruments of governance which have proved of decisive importance—the party system and judicial review. Neither of these instruments is described in the Constitution, but each serves to carry out its implicit purposes. T h e party system—or, to be more precise, the two-party system—is the instrument for transmuting parochial interest groups (the factions whose dominance Madison, in his Federalist days, had been apprehensive of in a small republic) into coherent, broadly based and enduring majoritarian alliances capable of governing a large and expanding confederation of states. Judicial review is the instrument for curbing legislative and executive acts—at the local or national level—which tend to subvert the allocations of function or the protections of individual rights prescribed by the Constitution. In 1801 Jefferson took office as President of the United States: he eschewed p a r t i s a n s h i p — " w e are all Republicans, we are all Federalists"—and was the leader of his party. In the same year, Marshall took office as Chief Justice of the United States: he was the principal leader of the scattered r e m n a n t s of the other party. T w o years after taking office, he announced the Court's decision in Marbury v. Madison and eschewed politics: " Q u e s t i o n s , in their n a t u r e political . . . can never be made in this C o u r t . " It is perhaps not surprising that Jefferson and Madison and their fellow Republicans saw Marshall's assertion of judicial authority to review and invalidate acts of Congress, and in a proper case to issue orders to cabinet members, in partisan terms: the Federalists, defeated at the polls, would continue to conduct guerrilla w a r f a r e f r o m the bench. In conversation with Senator John Quincy A d a m s , Senator William Giles of Virginia put it this w a y : If the Judges of the Supreme Court should dare, as they had done, to declare acts of Congress unconstitutional, or to send a m a n d a m u s to the Secretary of State, as they had done, it was the undoubted right of the H o u s e to impeach them, and of the Senate to remove t h e m for giving such opinions, however honest or

Keynote Address

29

sincere they may have been in entertaining them. . . . Removal by impeachment was nothing more than a declaration by Congress to this effect: You hold dangerous opinions, and if you are suffered to carry them into effect you will work the destruction of the Nation. So persuaded, the Republicans impeached that member of the Court who was least restrained about voicing his Federalist opinions from the bench—Justice Chase. But the Senate declined to convict. No justice has been impeached since that day. And Marshall, though he never again struck down a law of Congress, went on to establish federal supremacy over the states, and also the Court's arbitrament of that supremacy: in McCuIloch v. Maryland, which sustained congressional power to charter the Bank of the United States and barred states from taxing the bank out of business; in Gibbons v. Ogden, overthrowing New York's attempt to close the Hudson and the harbor to steamboats other than those of a single private monopoly; and in the other judicial hammer-blows that built a nation. Franklin, leader of so many causes, was an early abolitionist. For him the half century which followed the Louisiana Purchase would have been decades of mounting dismay, as the institution which he hated was claiming a vast new dominion and, in the process, threatening to destroy the union of states which he had helped to establish. Taney's opinion in Dred Scott, announcing that no descendant of a slave could be a citizen of the United States, and holding Congress powerless to end slavery in the territories, would have been hard reading for the Philadelphian who in 1789, when he was eighty-three, presented a plan " t o qualify those who had been restored to Freedom, for the Exercise and Enjoyment of Civil Liberties. . . , " and who in 1790, two months before his death, had called on the First Congress to take the lead in ending slavery in America. W e can suppose that Franklin would have stood with the new Republican, Lincoln, in the great debates with Douglas and the other political campaigns which followed Dred Scott, and also in the military campaigns which followed the political ones. But is it not, also, fair to guess that with the onset of the Civil War, Franklin would have urged Lincoln to hold a tighter rein on those of his subordinates, military and civilian alike, who relied on delegations of presidential authority to imprison thousands of suspected Southern sympathizers, to suspend habeas corpus, and on occasion to muzzle particularly virulent elements of the press? Would not Franklin—would not, perhaps, Lincoln himself—have welcomed the Court's ruling in Ex parte Milligan, decided after Lincoln's death, that military commissions could not try civilians even in time of war if the civil courts were functioning: " T h e Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances." And again:

30

Louis H.

Pollak

This nation . . . has no right to expect that wise and humane rulers, sincerely attached the Constitution. Wicked men, ambitious of of liberty and contempt of law, may fill the by Washington and Lincoln.

it will always have to the principles of power, with hatred place once occupied

For Franklin, 1 8 6 5 should have been a halcyon year—the end of rebellion and the end of slavery. But the stillness at Appomattox was broken by the firing of a revolver at Ford's Theatre. With Lincoln dead, Congress and the President were soon at loggerheads about how to rebuild the shattered nation. On paper, the nation's purposes seemed clear enough: the 13th Amendment ended slavery; the 14th Amendment exorcised Taney's dread dictum that blacks could never be citizens; the 15th Amendment granted b l a c k s — m a l e blacks, that is—the vote. Taken together, the three post-Civil W a r amendments pointed to the horizon described by Justice Miller, for the Court, in the Slaughter-House Cases: " t h e freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly-made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him." But how were these objectives to be achieved, and how and on what timetable were they to be squared with plans for readmission of the rebellious states? With these gravest questions of public policy (and sundry others) unanswered and unanswerable, paralysis of government set in. The dominant Republicans tried to use their power base in Congress as a platform for wielding the executive power; but Andrew Johnson, although unable to effectuate his own policies, refused to surrender his authority to Congress. Then the Republicans, turning back the pages to the Republicanism of Jefferson, tried impeachment. But the Senate of 1 8 6 8 acquitted Johnson, just as the Senate of 1804 had acquitted Chase. Impeachment as an instrument of party conflict disappeared from the constitutional arsenal. The Court in the late 1 8 6 0 s could do nothing to ameliorate the perilous confrontation between Congress and President. And, in the same era, the Court's expositions of the relationship between the states and the United States showed little understanding of Marshall's great nationalizing judgments, let alone a candid recognition that the Civil W a r had changed the equilibrium beyond recall. " T h e general government and the states," said Justice Nelson in 1 8 7 1 , in ordering the federal tax collector to return $ 6 1 . 5 1 of taxes paid under protest by a Massachusetts probate judge, although both exist within the same territorial limits, are separate and distinct sovereignties, acting separately and independently of each other, within their respective spheres. T h e former, in its appropriate sphere, is supreme; but the states within the limits of their powers not granted, or, in the language of the 10th Amendment, "reserved," are as independent of the general

Keynote Address

31

government as that government within its sphere is independent of the states. Little wonder that Henry Adams was later to say, writing of the last year of Andrew Johnson's administration: T h e whole government, from top to bottom, was rotten with the senility of what was antiquated and the instability of what was improvised. . . . [T]he whole fabric required reconstruction as much as in 1 7 8 9 , for the Constitution had become as antiquated as the Confederation. Sooner or later a shock must come, the more dangerous the longer postponed. T h e Civil W a r had made a new system in fact: T h e country would have to reorganize the machinery in practice and in theory. T h e election of a new President—the soldier-hero who had suppressed the rebellion—promised much: but it only resulted in debacles of a new kind. For the eight years of Grant's presidency, the nation wallowed in multiple malfeasances of a magnitude not even dreamed of by Franklin's most enterprising contemporaries. As Henry Adams wrote of the earliest of the many tawdry episodes: " . . . the worst scandals of the 18th century were relatively harmless by the side of this, which smirched executive, judiciary, banks, corporate systems, professions, and people, all the great active forces of society, in one dirty cesspool of corruption." T h e election of Grant's successor took place in 1876. Had Franklin observed the American electoral process in the centennial year, he would have had little ground for confidence in the party system. Save only for Watergate, 1 8 7 6 - 7 7 may fairly be viewed as the nadir of American politics. T h e candidate with the lesser number of popular votes—and, it seems likely, the lesser number of electoral v o t e s — was declared the winner by the 8 - 7 partisanly divided verdict of a jerry-built electoral commission (five Senators; five Representatives; five Supreme Court Justices). Moreover, in exchange for Southern Democratic acquiescence in the installation of Governor Rutherford B. Hayes as President, the Republican leaders agreed to withdraw federal troops from Louisiana and South Carolina, which, in effect, marked the end of popular concern for the great national purpose charted in Slaughter-House: " t h e protection of the newly-made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over h i m . " But did not Slaughter-House suggest that at least the judges would keep faith with the commitment made at Bull Run and Gettysburg and then written into the Constitution? In Slaughter-House, appellant's counsel—John Campbell of Alabama, the erstwhile justice who resigned from the Court at the outset of the rebellion—had unabashedly relied on the 14th Amendment for the proposition that the Louisiana legislature lacked power to confer on a single butchering

32

Louis H. Pollak

syndicate the exclusive right to operate an abattoir outside of New Orleans. Four justices agreed with Campbell. But the five justices of the majority did not: they found that the 14th Amendment provided no footing for a claim to constitutional protection from state interference with pursuit of a common calling, since the 14th Amendment and the other post-Civil W a r amendments were so clearly oriented toward what the Court called " t h e one pervading purpose" of bringing slaves into full freedom. But in the decade following the centennial, the 14th Amendment underwent a sea-change. In 1883 the Court held that the amendment gave Congress no power to require railroads, theatres, and hotels to desist from segregating or excluding blacks. However, the decision in the Civil Rights Cases was not to mean that the amendment was to become a dead letter. Rather, the amendment was to be put at the service of a different constituency. Thus, three years after the Civil Rights Cases, the Court ruled that a corporation was a " p e r s o n " within the meaning of the 14th (and, correspondingly, the Fifth) Amendment, and thereby ushered in the era of constitutional protection of free enterprise from government regulation adumbrated by the Slaughter-House dissenters. Blacks seemed to be falling out of constitutional favor, to be replaced by businessmen. Surveying America in 1 8 9 0 , and in the ensuing decade which closed out the century, Franklin might have noted certain other data and pondered their significance for the future: 1. In 1887 Congress passed the Interstate Commerce Act, establishing a federal commission to govern interstate railroad rates. In 1890 Congress passed the Sherman Anti-Trust Act. Congress was taking the first steps toward national regulation of a national economy and was beginning to improvise new forms of administrative governance. But the Constitution had lagged far behind Congress. T h e Court's first case under the Sherman Act affirmed dismissal of the suit brought by the United States to set aside corporate acquisitions, which gave one company control over 98 percent of the sugar refining capacity of the United States: Slight reflection will show that if the national power extends to all contracts and combinations in manufacture, agriculture, mining and other productive industries, whose ultimate result may affect interstate commerce, comparatively little of business operations and affairs would be left for state controls. 2. T h e census taken in 1 8 9 0 disclosed that the American frontier was a thing of the past. T h e continent was beginning to fill up. And America was beginning to look outward: Hawaii was soon to become American territory, to be followed in a few years by Puerto Rico and the Philippines. Shortly, the Court would consider whether, and in what respects, the Constitution followed the flag. 3. In 1890 the Louisiana legislature passed a law requiring railroads

Keynote Address

33

to provide "equal but separate accommodations" for the two races. The Jim Crow statute was sustained six years later in Plessy v. Ferguson. 4. In 1894, Congress adopted an income tax. In 1895, the Court held the tax unconstitutional. America, Franklin might have concluded in 1 9 0 0 , had lost her innocence and was coming of age.

The America which came of age in 1900 was an anomolous polity. The Constitution which Henry Adams thought antiquated in 1868 was at last obsolete. It was a Constitution sedulously protective of the racist instincts of the many and the acquisitive instincts of the few. It was a Constitution with little feeling for the "truths" proclaimed in 1776 or the structure blueprinted in 1787. And it was a Constitution unfitted to help a modern state govern its own increasingly dynamic economy or its ever-more complex relationships with other nation-states. W i t h the beginning of the new century, we no longer require Franklin to serve as guide. W e enter the years of first-hand recollection of some members of this conference. T h e y can recall for all of us the highlights of the long struggle in this century to restore the Constitution to sensible connection with the needs and purposes of the United States: the 16th Amendment; Holmes and Brandeis dissenting; depression and F D R ' s fight with the old C o u r t ; World W a r II and the subsequent deployment of the treaty power; and, last and foremost, the new constitutional era shaped by the W a r r e n Court—ushered in

by the rejection of Plessy v. Ferguson

and the acceptance of the one-

ness of the American people.

We come finally to Vietnam and Watergate—events which (to use Justice Miller's phrase in Slaughter-House, as he sketched the background of the post-Civil War amendments) are "almost too recent to be called history, but which are familiar to us all." They are the brooding omnipresences overhanging this and every conference on America's future. They are the two Banquos at every Bicentennial celebration. One could reasonably have expected Lyndon Johnson and Richard Nixon to be more adept than all other elected Presidents at understanding and working with Congress; for of all the elected Presidents only they had served in the House, the Senate, and the vice presidency. In domestic matters, Johnson indeed k n e w how to induce Congress, miniaturized since Roosevelt's time, to grow again to life-size—to be the equal partner of the President in the shaping of major national policy. O f this partnership, the Civil Rights A c t of 1 9 6 4 is a triumphant example, and there are others. But when it came to Vietnam, Johnson, from Tonkin Gulf on, induced Congress to grow small again and abdicate the adult exercise of its awesome responsibilities. W i t h respect to the Johnson policies which took us into, and kept us in, that longest of American wars, I am persuaded that they were wrongly

34

Louis H. Pollak

conceived, badly executed, and profoundly damaging to America's inner fiber and her effective leadership of the free world. Some whom I respect regard this assessment as largely or wholly in error. Whatever verdict history renders on the merits of Johnson's Vietnam policies, I am bound to acknowledge that the President had the courage of his convictions. By contrast, at least at the outset of the war, Congress, taken as a whole (of course there were illustrious exceptions: such as Wayne Morse, a double maverick; and Ernest Gruening, the aging New Dealer who kept forgetting that loyalty to party and President and concern for reelection normally take precedence over unswerving fidelity to the nation's welfare), had at the outset of the Vietnam War no courage and no convictions. Johnson is to be faulted for fostering congressional inattention to duty. But the duty and the inattention belonged to Congress. At its doorstep lies the decisive institutional failure. Nor is that failure to be explained away on the basis of some constitutional meta-principle that disagreement with presidential leadership in matters of foreign and military policy is unwise and perhaps even unpatriotic. As a matter of law, the President is of course the negotiator-in-chief and the commander-in-chief, but in both roles the President is subject to legislative constraints even more powerful than those which a sovereign Parliament can readily impose on the Queen's ministers. Nor did the proposition—of which the late Senator Vandenberg was the embodiment—that politics stops at the water's edge amend the Constitution. Indeed, to look at the American experience through the prism of that proposition is not merely to misperceive the Constitution's deliberate separation of functions and authorities, it is to misunderstand our history: America's politics began at the water's edge, when Hamilton and Jefferson divided the Cabinet and the nation on the proper American response to the outbreak of war between Britain and France. Nixon came to the White House seeking peace with honor. Two months later, he determined that the way to peace in Vietnam lay through neighboring Cambodia, where North Vietnamese reserves were massed, and he sent in bombers to blaze the trail. But the new war needed to be unacknowledged: public disclosure that Prince Sihanouk's realm was being bombed, and that he was not objecting, might have tended to embarrass the prince's studious neutrality. Nixon's potential embarrassment—waging a new war without asking leave of Congress—was taken care of by his field commanders in a very graceful way. As later described by the House Judiciary Committee, in laying the factual predicate of a draft article of impeachment which the committee did not approve: On March 18, 1969, the bombing of Cambodia commenced with B-52 strikes under the code name MENU OPERATION. These strikes continued until May 2 6 , 1 9 7 0 . . . . The operational reports prepared after each mission stated that these strikes had taken place in South Vietnam rather than in Cambodia.

Keynote Address

35

Save for a few senior members in whom the Pentagon confided, Congress was not advised that the targets listed in the operational reports were a little wide of the mark. But the official dissemination of these somewhat uninformative reports was not unlawful. We have been reassured on this point of law by the general who was then Air Force chief of staff: For falsification to constitute an offense, there must be proof of "intent to deceive." This is a legally prescribed element of the offense and is negated when the report is submitted in conformity with orders from a higher authority in possession of the true facts. With this aspect of the matter clarified, the only remaining legal question was a technical one: by what constitutional warrant had the President unilaterally initiated and pursued a year-long air war in a neutral country? After the fact, one might even have called it an academic question. But it was a question which continued to worry Congress—the more so, perhaps, because it was the sort of question the federal courts were disposed to term "political," and hence nonjusticiable. And the possibility that the question might arise again, in other guises, led at last to the enactment of the War Powers Resolution of 1973—the first major step in the reestablishment of Congress as one of the three co-equal branches of government. The resolution directs the President, absent a declared war, to report to Congress any significant commitment of armed forces in foreign territory, and to withdraw such forces by a date certain. Nixon vetoed the resolution, but Congress passed it over his veto. In rejecting Nixon's veto, Congress must be taken to have rejected a chief argument contained in Nixon's veto message—namely, that the War Powers Resolution is unconstitutional. Congress must have been very sure of its own constitutional ground, because it well knew that Nixon was a lawyer (at that time), and indeed a very accomplished one. Moreover, Congress also knew that Nixon was a "strict constructionist," which presumably meant that it was not his wont to conclude that an act of Congress was unconstitutional. O n the other hand, Congress may have felt that Nixon was apt to be a more flexible constructionist in judging federal laws imposing constraints on the President. Nixon has always set great store on maintaining unfettered the plenary authority of the President—for example, Watergate. The framers contemplated the dread possibility that some day a President sworn to preserve, protect, and defend the Constitution might find it irksome and might seek to reign under a legal code of his own composition. "This nation," as the Court said over a century a g o in

Milligan,

has no right to expect that it will always have wise and humane rulers, sincerely attached to the principles of the Constitution. Wicked men, ambitious of power, with hatred of liberty and con-

36

Louis

H.

Pollak

tempt of law, may fill the place once occupied by Washington and Lincoln. And so in the end, Nixon, corrupt and sick, quit "the place once occupied by Washington and Lincoln." He yielded to the convergence of two inexorable constitutional mechanisms: impeachment, the great engine intended, not for the exorcism of political foes, but for the trial of those charged with betrayal of the public trust; and the subpoena power of a court of the United States. It will be recalled that Nixon, in United States v. Nixon, had contended that no court had power to determine the President's obligation to comply with a subpoena requiring the production of presidential records—in that instance, tapes of conversations between the President and his advisers—deemed by the President to be confidential. The President's assertion of executive privilege posed a question, so it was argued, committed by the Constitution to the President alone—in lawyer's parlance, a "political question." And the argument was not without some force. After all, in Marbury v. Madison, Marshall, in giving assurance that "questions in their nature political . . . can never be made in this Court," had been at pains to abjure any claims to judicial authority "to intrude into the cabinet, and to intermeddle with the prerogatives of the executive." But Chief Justice Burger and his brethren were unpersuaded. They saw the claim of executive privilege as posing a legal question, not a political one. And, therefore, a different sentence in Marbury v. Madison—"It is, emphatically, the province and duty of the judicial department, to say what the law is"—controlled the result in Nixon's case. As the last chapter of Nixon's downfall shows, the most extraordinary fact about the American governmental process is the range and magnitude of the public issues which lawyers transpose into litigation and which judges then resolve by saying "what the law is." But the fact is not a new one; it is firmly rooted in Marshall's era, and it was clearly perceived by thoughtful observers dating as far back as Tocqueville. Moreover, criticism of spacious judicial intervention in the formation of fundamental public policy is no new thing. Billboards urging "Impeach Earl Warren" seem almost deferential in contrast to the attacks leveled at Marshall and his brethren: " I f , Mr. Speaker, the arch-fiend had in . . . his hatred to mankind resolved the destruction of republican government on earth, he would have issued a decree like that of the judges." Marshall survived his critics. So did Warren. We continue to look to judges to declare the fundamental values of our nation. In our own time, we have not been disappointed. Jim Crow and its monstrous derivatives—such as the incarceration of Japanese-Americans in World War II—were overthrown by what Richard Kluger has called the "simple justice" of Brown v. Board of Education. That single judgment connects our America with Lincoln, and with what Lincoln saw at Gettysburg to be the necessary and proper intendment of the

Keynote Address

37

Declaration. The nine justices who achieved the decision in Brown v. Board of Education have given us the opportunity and obligation at last to fulfill our nation's covenants. W e are honored today by the presence in our midst of one of the members of that Court, Justice Clark. The cases which matter most are those, like Brown, which define the fair purposes and processes of a free society and trace the contours of human dignity. The issues build upon one another, and so the Consituation builds. When, last week, the justices heard Anthony Amsterdam and Robert Bork argue the death penalty, they were working within a framework reared, in part, by an intrepid Louisiana lawyer— our distinguished fellow conferee, Judge J. Skelly Wright—who thirty years ago failed by the margin of one vote to persuade the Court that it was unconstitutional to electrocute a man twice. And perhaps the justices, now closeted with these fateful issues, will see relationships to the issues addressed last Wednesday by the New Jersey Supreme Court, when it held that the parents of Karen Ann Quinlan were entitled to help liberate their daughter from an existence which is no longer life. In similar fashion, but in another part of the constitutional forest, the justices will have the opportunity next year to consider Brown v. Board of Education in a different context. Does Brown apply—or does Plessy's "separate but equal" doctrine have continuing dominion— with respect to a school board policy of assigning students who seek a curriculum of academic excellence to high schools segregated on grounds of sex. The Court of Appeals in this circuit, finding the two schools to be of equal academic quality, a fortnight ago sustained Philadelphia's quaint atavism. The Court of Appeals' view that "if there are benefits or detriments inherent in the system, they fall on both sexes in equal measure," seems less than compelling: the Supreme Court observed as long ago as 1948 that "equal protection of the laws is not achieved through indiscriminate imposition of inequalities." Perhaps, notwithstanding the Court of Appeals' finding that the separate schools are equal, the Supreme Court will detect a fundamental disparagement of women in a policy which sends females to a school named "Girls" and males to a school named "Central." If the Court shows itself capable of sorting out issues of this kind, case by case, within the rubric of the equal protection clause, the case for ratification of the stalled Equal Rights Amendment would be less compelling. Some may think it unmannerly of me to use this public occasion to suggest that our Court of Appeals here in Philadelphia may have fallen into constitutional error and that its judgment should be reviewed, with a view to possible reversal, but the justices in Washington. Perhaps I can make amends by being unmannerly in the other direction—through the indiscriminate imposition of impoliteness on all courts within range. I now put it to you that the Supreme Court took a long backward step three months ago when it reversed our

38

Louis H.

Pollak

Court of Appeals in Rizzo v. Goode. In that case, it will be recalled, the Court of Appeals, on a record showing numerous instances of police mistreatment of local residents, had sustained Judge Fullam's carefully drawn decree requiring the Mayor and high officials of the Philadelphia police department to develop procedures which would facilitate orderly inquiry into citizen complaints of police misconduct. On certiorari, five of the justices disagreed. Unpersuaded "that the behavior of the Philadelphia police was different in kind or degree from that which exists elsewhere"—which, if the justices are right, suggests a general malaise in the legal order which should give all of us pause—they held that the remedy devised by Judge Fullam and approved by the Court of Appeals was an unwarranted federal judicial intrusion into the governance of local affairs. With all respect, I think the greater wisdom lies with Justice Blackmun and those who joined him in dissent: It is a matter of regret that the Court sees fit to nullify what so meticulously and thoughtfully has been evolved to satisfy an existing need relating to constitutional rights that we cherish and hold dear. In voicing these concerns, I am acting on what I conceive to be a citizen duty to monitor the content of decisions affecting important constitutional claims. I believe there is a parallel duty to be concerned about the forms of constitutional adjudication. I think you will agree that careless judging is apt to produce careless judgments. Accordingly, I submit that if, following Marshall's lead, the judicial department is to continue to "say what the law is," and thus to articulate the central values of our society, justices and judges must take the time to hear reasoned argument, and also to render reasoned opinions based on what Professor Wechsler has tellingly called "neutral principles of constitutional law." If I am right in this, I think it follows that serious problems are posed by what appears to be an increasing incidence of summary dispositions in our appellate courts. Last week witnessed a particularly troublesome example of this practice: the Supreme Court had before it an appeal from a three-judge district court which had sustained a Virginia statute criminalizing the homosexual acts of consenting adults. Although a case can certainly be made for the result reached by the district court, one would be hard put to say, in light of Criswold v. Connecticut and subsequent decisions, that the appeal was frivolous. There is certainly no recent Supreme Court decision which flatly concluded the issue in Virginia's favor. And indeed one member of the district court had found that the state lacked constitutional authority to intrude on the private conduct of its citizens in so coercive a way. With matters in this posture, three of the justices voted to set the appeal down for argument. But the majority of the Court overrode their brethren: they voted to affirm, without argument and without rendering an opinion.

Keynote Address

39

Given the seriousness and sensitivity of the issues presented on that appeal, I think the course of adjudication followed by the Court disserved the judicial process. I suppose it may be said in support of the decision not to hear argument that it would have been a waste of precious judicial time to explore issues a majority of the justices were prepared to resolve without benefit of opinion. And I suppose that dispensing with an opinion may be supported on the ground that explaining a decison in writing is hard and time-consuming and unrewarding labor when one is unsure of the grounds for one's decision. But neither line of defense seems very compelling. The short of it is that summary affirmance in a case of this consequence disposes of the particular controversy but gives no guidance to the bench, the bar, or the nation. Dispositions of this kind command obedience to a judicial mandate, but they do not generate respect for it. But respect for a court's mandate is not a resource to be squandered. It is the entire basis of the authority Marshall asserted and we have confidently acquiesced in. Judges must act as judges. As the members of the judicial department must—and I trust will —continue to perform their tasks in ways calculated to command respect, so, too, they must be treated with respect. Not the respect of robes and honorifics and " M a y it please the Court," but the respect contemplated by the Constitution—tenure during good behavior; and, most insistently, a compensation which is suitable to the burdens and responsibilities of judging and which is not to be diminished. The responsibility of seeing to these matters lies with Congress. It is a responsibility Congress has shirked, just as, until enactment of the War Powers Resolution, it shirked responsibility on questions of peace and war. The responsibilities are of comparable dimension. Momentous as they are, the constitutional imperatives to "provide for the common defence" and to "insure domestic Tranquility" are of no higher dignity than the constitutional imperative to "establish Justice." I thought it a mistake to try to litigate the "legality" of the Vietnam War, for it was a tactic calculated to withdraw accountability from Congress. With all respect, I feel the same way about the pending litigation asserting the unconstitutionality of current judicial salaries, eroding under inflation. They are not unconstitutional, they are inadequate, grossly inadequate, and Congress is to blame. The proper venue is in the Capitol, not in the Court of Claims. An extraordinary thing is happening in our Bicentennial year. A few leading English lawyers are beginning to wonder whether English law would not be well served if England were in some manner to adopt a judicially enforceable bill of rights. One of the foremost champions of the idea is Sir Leslie Scarman, an eminent member of the Court of Appeal. In his Hamlyn Lectures two years ago, the learned judge even argued that the idea is not quite the constitutional heresy it would appear to be to English lawyers trained on conventional notions of parliamentary supremacy. He pointed out that neither Holt nor Coke was fully persuaded that Parliament's authority was without limit. And most insistently he quoted Cromwell:

40

Louis H.

Pollak

In every Government there must be S o m e w h a t Fundamental, Somewhat like a M a g n a Charta, which should be standing, be unalterable. . . . T h a t Parliaments should not make themselves perpetual is a Fundamental. O f what assurance is a law to prevent so great an evil, if it lie in the same legislature to un-law it again? In this spirit, and to conclude this prologue to our agenda, I recall us once again to our constitutional b e g i n n i n g s — t o Franklin's words on the last of the Constitutional Convention. I hope they may also serve as epiloque: Sir, I agree to this Constitution with all its faults, if they are such; because I think a general Government necessary for us, and there is no form of Government but what may be a blessing to the people if well administered, and believe farther that this is likely to be well administered for a course of years, and can only end in Despotism, as other forms have done before it, when the people shall become so corrupt as to need despotic Government, being incapable of any other. . . . T h u s I consent, Sir, to this Constitution because I expect no better, and because I am not sure, that it is not the best.

Keynote Address

41

COMMITTEE I

VALUES and SOCIETY in REVOLUTIONARY AMERICA by Jack P. Greene In O r d e r that a . . . S t a t e should long s u r v i v e it is essential that it should be Restored to its original principles. 1 Even if the Bicentennial of the United S t a t e s did not s u g g e s t , the m o o d a n d circumstances of p o s t - V i e t n a m a n d p o s t - W a t e r g a t e A m e r ica would strongly d e m a n d a reconsideration of the relevance of the principles and v a l u e s on which the country w a s originally f o u n d e d . T h e dispiriting and divisive w a r in S o u t h e a s t A s i a followed by a humiliating " p e a c e with h o n o r " and the rapid " l o s s " of V i e t n a m , C a m b o d i a , L a o s , and A n g o l a to the free w o r l d ; the marginal s u c c e s s e s of the federal g o v e r n m e n t in c o p i n g with the bewildering difficulties of s t a g f l a t i o n ; the seeming inability of g o v e r n m e n t — a t all l e v e l s — t o deal effectively with the a p p a r e n t l y intractable p r o b l e m s p o s e d by the proliferation of crime and violence, the d e c a y of the cities, the continuation of racial and sexual discrimination, a n d the pollution of the e n v i r o n m e n t ; the corruption of the political s y s t e m itself to a point that required the resignation of the two h i g h e s t elected officials in the land and permitted agencies of the federal g o v e r n m e n t to violate at will m a n y of the country's m o s t cherished v a l u e s and to o p e r a t e essentially b e y o n d the control of all of the elected delegates of the p e o p l e — t h i s nearly endless litany of a b u s e s , d e f e c t s , failures, a n d , at best, m a r g i n a l s u c c e s s e s over the p a s t two d e c a d e s seems, f r o m a variety of indications, to have led to a m a n i f e s t loss of c o n f i d e n c e — outside a s well as inside the U n i t e d S t a t e s — i n the capacity of the A m e r i c a n political s y s t e m to s o l v e the n a t i o n ' s p r o b l e m s . 2 T h i s l o s s of confidence h a s led, within the United S t a t e s , to a retreat or alienation f r o m public life and, a b r o a d , to w i d e s p r e a d predictions of the death of the liberal state a s exemplified for the p a s t 2 0 0 y e a r s b y the United S t a t e s . In such an a p p a r e n t l y d e s p e r a t e situation, the principal question f o r a g a t h e r i n g such a s this b e c o m e s , not w h e t h e r the principles of

1776 can sustain us for a third or even a fourth century, but whether they still have any relevance at all at this moment, whether social and political conditions have not changed so drastically between 1 7 7 6 and 1 9 7 6 as to render the political system hammered out between 1 7 7 6 and 1789 entirely obsolete or at least in need of fundamental revision. T o put the question another way, is the alleged incapacity of the United States to deal with the massive problems now confronting it traceable not merely to the sudden agglomeration of a series of unrelated or only tenuously connected short-term problems that are susceptible to manipulation by changes in policy and/or leadership but also to the long-term disintegration and ossification of the political system itself, to some deeper systemic failure rooted in the very foundations of the American nation? Yet, the very survival of the American political system for the past 200 years is, at the very least, a powerful testimony to its capacity to respond to the most profound kinds of changes in social and political conditions, while the outcome of Watergate and its associated scandals and abuses of power provides vivid—and heartening—evidence that the old system may still have some life in it. Even if that system and the principles, values, and institutions on which it rests and through which it finds embodiment and expression should not turn out to be the causes of our present discontents, however, it is certainly desirable, in the spirit of both Machiavelli and the founding fathers, to seize the occasion of the Bicentennial to take a careful look at the viability of " t h e original principles" on which the Republic was founded. W h a t the original principles and values of the American Republic as they were formulated during the era of the American Revolution actually were and how they were rooted in and were a reflection of the particular social conditions that obtained in early America are the subjects of this paper. Hopefully, a discussion of these subjects will provide a basis for the consideration of the more pressing questions of which Revolutionary values ought to be reaffirmed, strengthened, and maintained and which eliminated as inappropriate and dysfunctional to a vastly different late 20th century world. THE REVOLUTIONARY

INHERITANCE

[During the Revolution], every thing in America seemed to operate, to promote political knowledge. T h e principles of civil liberty, which were but imperfectly considered in the writings of Locke, Sydney, and Montesquieu, occurred every moment to the views and feelings of the whole body of the people: Instead of being any longer barely the discoveries of a few enlightened philosophers, they became the prevailing sentiments of the whole body of the American citizens: And from that period until now, they have been constantly operating to produce a more natural form of government, a more perfect system of freedom, and a more flourishing state of society in America, than ever had been known before, among all the associations of men. 3

44

Jack P.

Greene

American understanding of precisely what the principles and values of the American Revolution actually were has fluctuated widely according to changing social circumstances, political exigencies, and cultural orientations. Part of a sweeping new movement toward greater sophistication in historical studies/ the analysis of the Revolution over the past quarter century has produced what seems to be a far more accurate and detailed and a far less anachronistic comprehension of most aspects of the era of the Revolution than we have ever had before. In no area is this more true than in the analysis of the principles and characteristics of what Gordon S. W o o d has called the emerging " A m e r i c a n science of politics/' knowledge of which has been enormously enriched by the careful studies of Douglass G. Adair, Bernard Bailyn, Richard Buel, Jr., Martin Diamond, Cecelia M . Kenyon, Perry Miller, Edmund S. Morgan, J. G. A. Pocock, J. R. Pole, Gerald Stourzh, and Gordon S. W o o d , to name only the principal contributors. 5 T h e foundation of the "American science of politics," these new studies have revealed, was a hardheaded and, we would now say, realistic view of human nature. Rejecting the belief of a few of the more radical thinkers of the European Enlightenment in the perfectibility of man, the founding fathers were virtually unanimous in their distrust of the human animal. Man was an imperfect creature whose actions and beliefs were often shaped by passion, prejudice, vanity, and interest and whose boundless ambition, though sometimes diverted into socially desirable channels by his craving for public approval and fame, made it difficult for him to resist the temptations of power and vice. M a n ' s feeble capacities for resistance thus turned power and vice into corrupting and aggressive forces, the natural victims of which (in the public arena) were liberty and virtue, those central pillars of a well-ordered state. 6 Yet, this unflattering view of man was counteracted by a belief that, through reason, man could use his own imperfections as a basis for constructing a stable and effective political system that would provide him with all the benefits that could be expected from political society. That politics, to quote David Hume, could " b e reduced to a science," that the application of intellect to the problem of human governance could yield, in the phrase of the Society for Political Inquiries, a body established by Benjamin Franklin, T h o m a s Paine, and others in Philadelphia, in 1787, "mutual improvement in the knowledge of government, and . . . the advancement of political science," was the confident expectation of most of the men who assumed responsibility for working out the new political systems for the United States during the Revolution. 7 This belief in the efficacy of reason underlay an animated, engaging, and, for the participants, exhilarating search for what the Vermont divine and historian Samuel Williams referred to in the previously quoted passage as " a more perfect system of freedom . . . than ever had been known before, among all the associations of m e n . " There had been no comparable opportunity presented to mankind, said Thomas Paine, "since the days of N o a h . " Americans had it in

Values and Society in Revolutionary America

45

their "power to begin the world over again" by discovering what Douglass Adair has called those " 'constant and universal principles' of . . . government in regard to liberty, justice and stability." Yet, Americans did not, as Paine supposed, have an entirely "blank sheet to write upon." 8 " I n the establishment of our forms of government," said George Washington in his circular letter to the governors of the states at the conclusion of the W a r for Independence, Americans were able to draw upon " t h e treasures of knowledge, acquired by the labours of philosophers, sages, and legislators, through a long succession of years." The classical tradition, the English common law, the writings of 17th century New England Puritans, the political thought of John Locke and other natural rights theorists of the 17th and 18th centuries, the social and political thought of British opposition writers, and the ideas of both the Scottish and the continental European Enlightenment provided Americans with a plentiful stock of political wisdom to which they could, and did, turn for guidance. But practical experience derived from a century and a half of internal self-government, the lessons of which had been vivified by a decade of intense political interchange with Britain just prior to the Revolution, may have been even more helpful in the quest for an American science of politics. For the men who worked out the major components of the new American system were—almost to a man—experienced politicians. In marked contrast to virtually all later political revolutions, the American Revolution occurred in a society that had already undergone extensive political development and had at its command impressive political resources in the form of experienced and acknowledged leaders, tested institutions, and a politically conscious and socialized electorate. 9 If Americans had a large body of theory and tradition and a broad range and deep level of experience to draw upon, however, little of it could be applied to the conditions of an independent America without considerable modification. What emerged from this process of adaptation was a political system that was in its working principles, characteristics, and underlying goals distinctively American. The departures from traditional theory and practice, in relation to most of what may be referred to as the main working principles of government, were in many respects substantial. In the best British tradition, Americans would retain a strong belief in the principle of limited government: they, like Britain, would have a government of laws, not men. But they quickly rejected the contemporary British orthodoxy that the supreme legislative power was omnipotent and could alter the fundamentals of the Constitution as well as ordinary statute law—"the power and jurisdiction of parliament," said Sir William Blackstone in his enormously influential Commentaries on the Laws of England, "is so transcendent and absolute, that it cannot be confined . . . within any bounds." To defend themselves against Parliament's efforts to tax them after 1764, Americans had fallen back on the higher law doctrine of Sir Edward Coke and other 17th century interpreters of the common law who had suggested that the

46

Jack P.

Greene

fundamental rights of Englishmen were beyond the reach of a mere legislative body. Over the next quarter century, they incorporated into the American system of government the basic principles that the natural rights of men were not conferred by but existed independently of a limited government and that neither those natural rights nor any other component of the fundamental law, as laid down by the Constitution, were susceptible to change by government. Indeed, Americans developed the "important distinction," a distinction, said The Federalist papers, that seemed " t o have been little understood and less observed in any other country," between fundamental law and statute law, between " a Constitution established by the people and unalterable by the government, and a law established by the government and alterable by the government." Unlike the British constitution, that amorphous result of a series of discrete actions by the ordinary organs of government, the American constitutions were written documents, ideal designs of government constituted by the people in specially elected conventions and designed to confirm the fundamental rights of the citizenry at the same time that they specified a form of government that would secure those rights. 10 Governments were, moreover, to be limited not only by constitutions established by the sovereign power of the people but also by the very character of government itself. For American government was representative government and representative throughout, not just in one of its parts. Americans rejected the European idea that society was divided into separate orders or estates and that each order needed its own organ of government to protect its special interests. In America, there would be no "distinction of rights in point of fortune," "no distinctions of titles, families, or nobility," no legally privileged "family interests, connexions, or estates," no "hereditary powers." "Representative government," said Paine, "is freedom," and the "floor of freedom" had to be "as level as water." Among citizens, at least, there had to be an absolute equality of rights. Thus, in the American conception of politics, government was divided into separate branches, not because each part represented a different social constituency, but simply because it would act as a check upon the others. Because each branch derived its "whole power from the people," moreover, it was directly "accountable to them for the use and exercise" it made of that power, and the chief "security of the people," Samuel Williams pointed out, derived less "from the nice ideal application of checks, balances, and mechanical powers, among the different parts of the government" than "from the responsibility, and dependence of each part of the government, upon the people." Representative government was to be responsive and responsible government. 11 The notion that all power derived from the people was the foundation for still another and, in many ways, the most crucial innovation in the American science of government: the idea that sovereignty resided in the people themselves rather than in any institution of government. Earlier British and European thinkers had been unani-

Values and Society in Revolutionary America

47

m o u s in their belief that sovereignty was indivisible, and during the 1760s and 1770s British political writers f o u n d the American argument that there might be two or more taxing powers in the same political society, a multiplicity of parliaments each with a separate jurisdiction over a specific area, incomprehensible. Such an argument seemed to imply the existence of more t h a n one sovereign power within a single state, but to most Britons the very idea of an imperium in imperio—a sovereign authority within a sovereign a u t h o r i t y — w a s nothing but a solecism, a total contradiction in terms. The colonies were either part of the British Empire and therefore under the authority of the King-in-Parliament assembled, the repository of sovereign power in the empire, or they were separate states each operating under its own sovereign authority. T h e r e was—there could b e — n o t h i n g in between. Faced with the same problem of h o w the essential powers of sovereignty might be divided between the state governments and the national, American political writers solved the problem of the indivisibility of sovereignty and thereby m a d e possible the creation of a workable federal system, perhaps the most important political innovation of the Revolutionary era, by relocating sovereignty not in governments but in the people themselves. If the people were sovereign, as the federal Constitution of 1787 assumed, the "state governments could never lose their sovereignty because they had never possessed it," and the people could delegate the essential powers of sovereignty to any government or governments they wished, giving some powers to one government and other powers to another. According to this theory, all governments at all levels were the agents of the sovereign people. Thus, as James Madison wrote in The Federalist, both the state governments and the national government were " b u t different agents and trustees of the people, constituted with different powers, and designed for different purposes." Such a distribution of power between state g o v e r n m e n t s and the national government, and the countervailing pressures arising f r o m that distribution, would, in fact, be still another device for protecting the people against too great an assumption of power by either. 1 2 In m a n y ways, the most considerable d e p a r t u r e from traditional political wisdom was the idea that, contrary to the dictum of M o n tesquieu, public virtue might not be requisite for a popular republican government—especially if such a g o v e r n m e n t extended over a large area. T h e establishment of republican governments in the states in the mid-1770s had been accompanied by widespread expressions of the conviction that no popular government could long survive without a virtuous citizenry which would eschew vice and luxury and put aside all individual concerns in pursuit of the common good. By the mid-1780s, however, some writers were beginning to sense, somew h a t in the spirit of Bernard Mandeville, that private vice might render public virtue unnecessary in a f r e e government, that the clashing of self-interest might in fact provide " t h e energy of true freed o m . " H o w precisely this situation might be achieved was, as Doug-

48

Jack P.

Greene

lass Adair has shown, the special insight of James Madison as derived from David Hume and revealed in The Federalist no. 10. Whereas earlier republics had invariably fallen prey to the tyranny of a majority faction, the United States, Madison predicted, would be saved from that unhappy fate by its enormous size and the multiplicity of interests that would necessarily result from that size. With so many separate and diverse interests, there could be no possibility of enough of them submerging their differences and getting together to form a majority faction. In a large republic, Madison thus suggested, the struggle of manifold interests would operate, to quote Martin Diamond, as a "safe, even energizing" force that would operate to safeguard the liberty and stability of political society. Not a single unitary interest, then, but a plurality of conflicting interests was the proper foundation for a free government. Traditional hostility to faction and party as the instruments of partial and self-interested men would no longer be functional in the new American regime: within a generation after the ratification of the federal Constitution, in fact, political parties would come to be seen as essential to mobilize the diverse and multiple interests of the country for the purpose of providing effective government. 1 3 The new science of politics that emerged in the United States during the Revolutionary era was not, of course, in all ways a departure from the past. Traditional skepticism about the political capacities of the broad body of the citizenry, though sharply mitigated by the already highly inclusive character (in relative terms) of American political society, continued to be manifest in a variety of constitutional checks on the power of the electorate: by bicameral legislatures and such institutions as the council of censors in Pennsylvania and Vermont and the council of revision in New York, at the state level, and by the indirect selection of the President, Senate, and Judiciary at the federal level. Similarly, there was no real revision in traditional criteria of who might be admitted to citizenship: all categories of people thought either not to be free from external control (such as slaves, servants, and propertyless adult males) or lacking in sufficient discretion (such as women and free people of color) were routinely denied the franchise, despite a few proposals for universal manhood and even universal adult suffrage. 14 Finally, political leadership continued to be considered as the preserve of the "aristocracy of talent," those people of unusual wealth, education, merit, or talent who were sufficiently expert to provide effective government. American political leadership would, like that in much more traditional societies, designedly continue to be elitist in character and the broad body of electors deferential to their political superiors. The power of the people was still intended not primarily "to facilitate their will in politics but to defend them from oppression." 1 5 What Americans wanted their governments to be like, the specific characteristics they expected them to exhibit, was implicit in these many working principles of their political system. Governments were to be representative (popular and responsive), responsible (com-

Values and Society in Revolutionary America

49

petent and attentive to the general interests of political society), equal (without any distinctions of rights among citizens), open (subject to review by the citizenry), and concerned with the single end of the "public business" and "not the power, the emolument, or the dignity, of the persons employed" in government. A proper concern with the public interest, moreover, necessarily demanded that government also be mild (in the construction and application of the law), simple (with no more officials in either civil or military capacities than were absolutely necessary), and inexpensive.16 But a government exhibiting these characteristics and built upon the principles described above might have been turned to any number of purposes, and the primary question must surely be what goals the American political system as fashioned in the era of the Revolution was supposed to achieve, what values, or larger ends of government, the Revolutionary generation had in mind when it was constructing that system.17 Most of these values were explicit in the major American state papers. The primary purpose for which governments were instituted, said the Declaration of Independence, was to secure the inalienable rights of men, of which the Declaration listed three: life, liberty, and the pursuit of happiness. Security of each of these three rights was certainly among the most fundamental values of the Revolutionary generation. Security of life, the first in the trilogy, and liberty, the second, were ancient goals of British government and require little examination here. But the reader should be reminded that in the American Revolutionary context, liberty was beginning to mean something more than a bundle of inherited liberties and rights that were the prescriptive possessions of citizens. During the Revolution, liberty had in fact come to carry a double meaning: it referred to both the right of the citizen to participate in the political process and, as the American conception of natural rights discussed above suggests, those inherent rights that pertained to all citizens qua citizens which could not in any way or to any extent legitimately be violated by government. Implicit in these first two objects of political society were two further ones that were made explicit in the Preamble to the federal Constitution—order, variously referred to in Revolutionary state papers as safety or domestic tranquility, and justice. If Americans believed in liberty as an end of political society, it was an ordered liberty justly distributed among all citizens by an impartial government. Liberty was not to be confused with licentiousness, which was liberty carried to such an excess as to produce its direct opposite. The "blessings of liberty," said the Virginia Declaration of Rights, could only "be preserved to any people . . . by a firm adherence to justice . . . [and] moderation." Justice had to be the guiding principle behind all government actions. The list of grievances in the Declaration of Independence bristles with indignation at the many alleged injustices of the British government toward the Americans during the previous thirteen years.18

50

Jack P. Greene

"Pursuit of happiness" was certainly the most novel and the most ambiguous of the inalienable rights or fundamental values of political society asserted by the Declaration of Independence. T h e happiness of individual citizens had not previously been considered a concern of government in traditional European thought and practice: unlike property, the third component of the traditional trilogy of rights as laid down by John Locke in his Second Treatise of Government, happiness, as Cecelia M. Kenyon has pointed out, was not susceptible to objective definition and varied enormously from one individual to another. W h a t Jefferson and his colleagues meant to imply by substituting it for property has been a perennial subject of scholarly debate. Almost certainly, however, they did not mean to assert, as an earlier generation of historians assumed, the supremacy of human rights over property rights. Most of the leaders of the Revolution would probably have agreed with Thomas Paine that liberty should always take precedence over "the defence of property." But in the Anglophone world of the late 18th century, few people ever suggested that there might be any conflict between the two. Like most contemporary British political writers, Americans regarded security of property as one of the most important components of liberty, and in the years after 1776 they also assumed a similar link between property and happiness: security of property was, in all quarters, said to be a basic ingredient of happiness. Upon a close inspection, in fact, happiness, as it was conceived by the Revolutionary and later generations, turns out to have been composed of several such ingredients. Not just security of property, but peace and a situation in which citizens might become prosperous and achieve a state of what was referred to as "competency and independence" were said to be important components of happiness and legitimate goals of political society. Whereas systems of government, in the old world, supported themselves " b y keeping up a system of w a r , " Thomas Paine told Europeans in The Rights of Man in 1792, the system of government in the new world promoted " a system of peace, as the true means of enriching a nation" by enriching the inhabitants that composed it. Peace was thus a means of achieving a still more fundamental objective. True happiness, Paine told his European readers, had been discovered in America to be the product of a situation in which every citizen might "pursue his occupation, and enjoy the fruits of his labors, and the product of his property, in peace and safety, and with the least possible expense." Every citizen should have the opportunity to pursue his happiness in peace and safety, and the pursuit of happiness was the quest for property, prosperity, and independence from control by any other man. Government was thus expected both to facilitate the pursuit of happiness by the citizens who lived under it and to protect them in the enjoyment of whatever fruits their efforts had borne. 1 9 If, as Charles Pinckney declared in the Federal Convention in 1787, the "great end of Republican Establishment" was the creation of a government "capable of making" its "citizens . . . happy" by foster-

Values and Society in Revolutionary America

51

ing an environment in which they could, in peace and safety, pursue and enjoy prosperity and independence, the Declaration of Independence suggested through the assertion of the "self-evident" truth that "all men are created e q u a l " that equality, in some form, might be a goal of American political society. W h e t h e r by this assertion Jefferson and his colleagues were talking about equality in the state of nature, a conventional proposition found in the political theory of Hobbes, Harrington, Locke, and most other natural rights philosophers, or equality in civil society, a potentially radical idea, is still an open question. Given the American tendency, noted by Cecelia M. Kenyon, " t o blur the differences which Locke [and others] had either stated or implied between the state of nature and the state of civil society," it cannot safely be assumed, however, that they meant to confine their concern with equality to the state of nature. Certainly, as much of the rest of the Declaration makes explicit, the form of civil equality they had chiefly in mind was equality between Americans and Britons—formerly as subjects of the same empire and thenceforth as members of " s e p a r a t e and equal" political societies. 2 0 But the concept of equality was widely recognized to have far broader implications, and during the Revolution a rough consensus emerged as to precisely what equality in civil society did—and did n o t — i m p l y . It emphatically did not mean that all men were equal by nature, or that all men should have " a n equality of wealth and possessions." W h a t it does seem to have meant was equality both of opportunity and of rights—for citizens. Equality of opportunity connoted the equal right of every individual citizen to pursue his happiness, to achieve the best life possible within the limits of his ability, means, and circumstances; equality of rights meant that all citizens— and certainly not all men who were not all citizens—would, as Samuel Williams put it, have " a n equal right to liberty, to property, and to safety; to justice, government, laws, religion and freedom." T h e American belief in equality of opportunity can be witnessed in the widespread insistence that there should " b e no monopolies of any kind, that all trades shall be free, and every man free to follow any occupation by which he can procure an honest livelihood, and in any place, town, or city, throughout the n a t i o n , " while the commitment to an equality of rights is best illustrated by their rejection of all suggestions for the recreation in America of the European system of privileged "orders and degrees." In America, said T h o m a s Paine, there would be " n o other race of men . . . but the people." How far the Revolutionary commitment to equality extended can be surmised from the treatment of the two issues of established religion and chattel slavery. T h e commitment extended far enough to permit most states to disestablish formerly legally established churches and to enunciate principles of religious toleration and equality of all denominations. T h e n c e f o r t h , each American would be left at "full and perfect liberty, to follow the dictates of his own conscience, in all his transactions with his m a k e r " and " a l l denominations" would " e n j o y equal liberty, without any legal dis-

52

lack P.

Greene

tinction or preeminence w h a t e v e r . " But the commitment was not strong enough to force them to abolish chattel slavery wherever it was economically viable or even to extend citizenship to those people who had successfully escaped slavery. Free people of African and Amerindian descent, like women and children, were not thought to have the discretion requisite for the responsible exercise of citizenship. For the time being, the American commitment to equality would be limited to citizens, that is, to white adult independent males. 21 Another value that was widely manifest the insistence that American political spiritedness or public virtue. Somehow, Americans upon his leaving his command had to acquire

during the Revolution was society encourage publicGeorge Washington told at the end of the war, they

that pacific and friendly disposition . . . which will induce them to forget their local prejudices and policies; to make those mutual concessions, which are requisite to the general prosperity; and, in some instances, to sacrifice their individual advantages to the interest of the [whole] community. Despite the insights of James Madison and others concerning the possibility of building a stable state on the clash of self-interest, most members of the Revolutionary generation still believed that public virtue—as principally defined by a concern for and willingness to subordinate individual and local interests in behalf of the common welfare—was necessary to the successful functioning of any republican political society. 2 2 O n e final value that received strong emphasis during the Revolution was unity. Prior to the 1760s, the disunion of the colonies was notorious. For 150 years they had been, in most cases, more directly connected with Britain than with each other, and they had often quarreled over boundaries and even refused aid to one another against enemy attacks. During the long altercation with Britain prior to the Revolution, however, they learned the importance of maintaining a united front, and, from 1774 through the end of the war, American political leaders, acutely aware of the extreme fragility of the extensive union they were trying to establish because of the multiplicity of conflicting interests and traditions it contained, stressed the importance of a firm and steady union, lest division contribute to the failure of the Revolution b y permitting the British to divide and rule. Following the war, these same leaders emphasized the necessity for a strong and perpetual union as the only device through which the new American states could achieve either their full potential as republican polities or their rightful place among the rest of the nations of the world. O n " t h e Union of the States," said Paine at the conclusion of the war, " o u r great national character depends. It is this which must give us importance abroad and security at home. It is through this only that we are, or can be known in the w o r l d . " In the late

Values and Society in Revolutionary America

53

1780s, The federalist declared hopefully, " t h e utility of the Union" was "deeply engraved on the hearts of the people in every State." But it would take another century and a civil war before such a declaration could be applied with full confidence to the United States as a whole. 2 3 T h e Revolutionary generation did not, of course, give each of these values equal emphasis, and a rough system of priorities can be established among them. They may be broken down into four categories according to their importance to the people of the Revolution. Life and liberty were given the highest priority and belong in the first and most important category. Only very slightly behind them, the pursuit of happiness falls into a second category. O f only somewhat less importance, public virtue, justice, order, and peace comprise a third category, while, as least valued by the Revolutionary generation, unity and equality can be assigned to a fourth and last category.

SOCIAL FOUNDATIONS OF REVOLUTIONARY VALUES In the state of society which had taken place in America, the foundations of her freedom were laid. 24 Unity; public virtue; equality of opportunity and rights for citizens; public happiness as represented by peace and tranquility and the ability of all citizens to strive for prosperity and independence, secure in the knowledge that the property acquired as a result of their strivings would be secure; order; justice; liberty as both the sanctity of individual liberties and the right to participate in the political process; security of life—these were the principal values of the Revolutionary generation, the fundamental goals political society was expected to promote. They were values that were expressive of and appropriate to a special combination of social conditions that obtained in early America. "Writers upon American politics" during the Revolution, Samuel Williams accurately observed, learned their political "principles from the state of society in America," and the salient characteristics of that society, at least as it existed for those segments of the population who were of European extraction, were simplicity, openness, relative plenty, relative equality, and activity. 2 5 Despite the efforts of the colonists to transplant to the new world as much of the world they had left behind as possible, circumstances of life in the colonies had never been congenial to their success. T h e easy availability of land and a high demand for labor to exploit it and the resources it contained produced a wide diffusion of property and a society that was more equal and less differentiated than any in the Western world at that time. Every one of the fundamental supports of the traditional society of the old world-—the legally sanctioned distinctions of rank and degree, the scarcity of land and other resources, the psychology of passive dependence among the vast majority of the population, and the feelings " o f subordination that property, ancestry or dignity of station . . . naturally excited" in Britain and Europe—all of these were either missing altogether or

54

Jack

P.

Greene

extraordinarily weak in the new world. The result was that the traditional patterns of family and corporate authority that lay at the heart of the patronage societies of the old world never managed to achieve much vigor in the new. Thus, as Crevecoeur remarked in his famous Letters from an American Farmer, the European coming to America was confronted with a society totally different from what he had hitherto seen. It is not composed, as in Europe, of great lords who possess every thing, and a herd of people who have nothing. Here are no aristocratical families, no courts, no kings, no bishops, no ecclesiastical dominion, no invisible power giving to a few a very visible one. Instead, he found "a people of cultivators" with but few towns scattered among them, "a pleasing uniformity of decent . . . habitations," and a lexicon "short in words of dignity, and names of honour." As Tocqueville later remarked, free men in America were "seen on a greater equality . . . than in any other country of the world, or in any age of which history has preserved the remembrance." 2 6 Along with an extraordinary laxity of political control on the part of Britain, the vast opportunities and profuse abundance of the American environment exercised a profound effect upon the development of values and personality. Whereas in the old world, many, probably most, of the colonists had been, in the words of Crevecoeur, "as so many useless plants, wanting vegetative mould, and refreshing showers" and had been "mowed down by want, hunger, and war," in America as a result of transplantation they had, "like all other plants, . . . taken root and flourished." "From involuntary idleness, servile dependence, and useless labour," they "passed to toils of a very different nature, rewarded by ample subsistence." As Crevecoeur penetratingly observed, this "great metamorphosis" had " a double effect": first, it extinguished "all . . . European prejudices," encouraged men to forget "that mechanism of subordination, that servility of disposition which poverty had taught" them in the old world, and nourished a jealous sense of personal independence, marked impatience with restraint, and a profound antagonism to any barriers to the pursuit of individual happiness; second, it greatly enlarged their expectations for themselves and their children and prompted them to form "schemes of future prosperity," to marry earlier and produce more children to fill up the vast open spaces, to endeavor to educate their children in preparation for the bright new world they had before them, and to develop "an ardour for labour" unknown in the old world. The ease " o f acquiring subsistence, and estate," said Samuel Williams, both produced "a spirit of universal activity, and enterprise" and encouraged men to preoccupy themselves with the pursuit of their own individual interests to the exclusion of all other concerns. Men were "careful and anxious to get as much as they can," said Crevecoeur, "because what they get is their

Values and Society in Revolutionary America

55

o w n . " In America, then, "nature and society . . . combined" to raise free men from a state of passive dependence to one of active independence, to produce a "natural, easy, independent situation, and spirit," and to nourish a "spirit of freedom," industry, and economy, a thirst for property, knowledge, and improvement, and—because most free men were free from want and too preoccupied with their own pursuits to have time for dissipation and vice—habits of virtue. "Industry, good living, selfishness, litigiousness, country politics [that is, the politics of skepticism and dissent], the pride of freemen, religious indifference"—these were the personal characteristics that were "produced, preserved, and kept alive, by the state of society" in America. 2 7 T h e political system established in the United States during the Revolution was thoroughly compatible with this "state of society" and the character and values of the men who composed it. Government in America was to be the servant of the individual citizens who created and lived under it; they were not to be the servants of the government. Independence from Britain and the establishment of a more perfect union through the federal Constitution were not ends in themselves but means through which the citizenry could help to make sure that neither external interference nor internal divisions would prevent political society from achieving its most fundamental purpose: the promotion of the liberty, prosperity, and happiness of individual citizens. The main object of concern to most Americans, Charles Thomson complained in 1786, was their own "individual happiness," and this strong predisposition among individuals to preoccupy themselves with their own private concerns at the expense of public obligations was productive of a powerful tension between the pursuit of happiness and public virtue, between the insistence upon personal independence and the need for public-spiritedness. This tension, strongly manifest during the W a r for Independence, was temporarily resolved in the early 19th century by giving precedence to the pursuit of happiness over public virtue, by defining the public good as the sum of private happinesses. Except in times of war and public distress, this resolution was workable so long as resources were plentiful and private interests did not interfere excessively with the welfare of the whole society. 2 8 Government, Thomas Paine wrote with the American model firmly in mind, was thus "nothing more than a national association acting on the principles of society." That those principles were not universal, that the " f o r m of government which was best suited to . . . one stage of society" might cease " t o be so, in another," was widely recognized by the men of the Revolution. They also understood that unless a government could adapt to changes in the nature and circumstances of society it would "lose much of its respectability, and power; become unsuited to the state, and injurious to the people." Not just the dangers of corruption, but also the changing character of society itself made a "frequent recurrence to fundamental principles" desirable. What was "written upon paper respecting govern-

56

Jack P.

Greene

merit," said Samuel W i l l i a m s , was not sacred and not " o t h e r w i s e good or bad, than as it is applicable to m a n k i n d , and m a y be b e n e ficial, or disadvantageous to t h e m . " 2 9

CONCLUSION N o policy would appear more puerile or c o n t e m p t i b l e to the people of America, than an attempt to bind posterity to our f o r m s , or to confine them to our degrees o f k n o w l e d g e , and i m p r o v e m e n t : T h e aim is altogether the reverse, to m a k e provision for the perpetual improvement and progression o f the g o v e r n m e n t itself. 3 0 T h a t the values of the Revolution and the s y s t e m o f g o v e r n m e n t through which they were expressed would eventually h a v e to b e modified to meet changing social conditions was clear to most m e n of the Revolution. For the first century of the R e p u b l i c , h o w e v e r , there were no social changes sufficiently profound to d e m a n d f u n d a m e n t a l changes in either the political or the value s y s t e m s that had been articulated during the Revolution. Such changes as occurred tended simply to remove or modify existing anomalies discovered to have been incompatible with the original values of the Republic. T h u s , it is hardly surprising that the principle o f equality should have been given ever greater emphasis in the most egalitarian society in the W e s t e r n world. T h e substitution of faith for skepticism in the political capacities of the broad body of citizens, the e x p a n s i o n o f the suffrage to include all adult white males, and the g r o w i n g insistence upon equal access to public office for all citizens b o t h undermined the last vestiges o f traditional political mentality in the A m e r i c a n political system and testified to the increasing importance o f equality as a political value within American society. Similarly, the abolition o f slavery and the adoption of the 1 3 t h , 1 4 t h , and 1 5 t h A m e n d m e n t s to the C o n s t i t u t i o n committed that society to the eventual destruction of the racial limits within which liberty had hitherto been confined. If American society underwent few basic alterations during the first century of the American Republic, it has c h a n g e d p r o f o u n d l y during the second. It has moved from simplicity and (relative) homogeneity to complexity and (relative) h e t e r o g e n e i t y : from a country o f mostly independent rural proprietors o f British a n d ' o r N o r t h European stock, it has become a nation largely composed o f urban dwellers o f extraordinary ethnic diversity w h o , to a very great extent, depend for their livelihood, either directly or indirectly, upon large-scale business, industrial, and political organizations. As c o n centrations of wealth have b e c o m e greater, so has poverty and social inequality. Relative plenty, vast open spaces, and an optimistic sense o f boundlessness and activity have been replaced b y impending scarcity and anxious fears o f constriction and passivity. T h e n e w state o f dependence in which most Americans have come to live over the past century has produced a widespread and a totally new v a l u e :

Values and S o c i e t y in Revolutionary A m e r i c a

57

economic security or freedom from want. Government has long since ceased to be inexpensive and—for some segments of society—even mild. T h e isolation and reliance upon a pacific disposition in foreign affairs has been replaced by involvement and reliance upon the threat of force. Given the fundamental character of these and other changes, it is perhaps surprising that Revolutionary values have proved as viable as they have. M a n y restraints have had to be imposed upon the pursuit of happiness as Americans discovered early in the 20th century that in a society with resource limitations private vices were not always public benefits, but there has been an enormous expansion of the ideals of liberty, justice, equality (racial and sexual), and privacy—a value that had received little emphasis in the Revolutionary era—to the point, some commentators have argued, that they threaten their companion values of order and stability. T h e adaptability of these values strongly argues, in fact, that they are still laudable and appropriate goals for American society. But changing social and political (especially international) conditions may make it necessary to revivify and to reorder priorities among them, perhaps even to reconstruct the American science of politics so that it may be better able to secure them in a more complex world. Such an effort would be entirely commensurate with the expectations of the founders of the American Republic.

58

Jack P. Greene

NOTES 1. Niccolò Machiavelli, The Discourses, ed. B e r n a r d Crick ( L o n d o n : Peter Smith Publishers, 1 9 7 0 ) , p. 385. 2. The latest H a r r i s Poll in M a r c h 1976 revealed the lowest confidence in A m e r i c a n institutions a m o n g the A m e r i c a n public ever recorded during the ten years during which such polls h a v e been taken. 3. Samuel Williams, The Naturai and Civil of Vermont (Walpole, N.H., 1 7 9 4 ) , p. 310.

History

4. See J a c k P. Greene, " T h e N e w H i s t o r y : From T o p to B o t t o m , " New York Times, 8 J a n u a r y 1975, p. 37, for a brief description of this m o v e m e n t . 5. The works of m o s t of these scholars a r e discussed at length in Jack P. Greene, " R e v o l u t i o n , Confederation, and Constitution, 1763-1787," in William H. C a r t w r i g h t and Richard L. W a t s o n , Jr., eds., The Reinterpretation of American History and Culture ( W a s h i n g t o n : National Council for the Social Studies Social Education, 1 9 7 3 ) , pp. 2 5 9 - 9 6 . But see, also, J. G. A . Pocock, The Machiavellian Moment: Florentine Political Thought and the Atlantic Republican Tradition ( P r i n c e t o n : Princeton University Press, 1 9 7 5 ) , pp. 4 6 2 - 5 5 2 , and Gerald Stourzh, Alexander Hamilton and the Idea of Republican Government (Stanford: Stanford University Press, 1 9 7 0 ) . 6. See, especially, A r t h u r O. Lovejoy, Reflections on Human Nature (Baltimore: Johns Hopkins University Press, 1 9 6 1 ) , pp. 3 7 - 6 5 , and Bernard Bailyn, The Ideological Origins of the American Revolution (Cambridge: H a r v a r d University Press, 1 9 6 7 ) , pp. 55-93. 7. Douglass G. A d a i r , " T h a t Politics M a y Be Reduced to a Science: David H u m e , James Madison, and the Tenth Federalist," Huntington Library Quarterly 2 0 (1957), pp. 3 4 3 - 6 0 ; T h o m a s Paine, " T h e Society for Political Inquiries" ( 1 7 8 7 ) in Philip S. Foner, ed., The Complete Writings of Thomas Paine, 2 vols. (New Y o r k : Citadel Press, 1 9 4 5 ) , vol. 2, p. 42. 8. See Adair, " T h a t Politics M a y Be Reduced to a S c i e n c e " ; Paine, Common Sense, and " T h e Forester's L e t t e r s " (1776) in Foner, ed. Complete Writings, vol. 1, p. 45, vol. 2, pp. 8 2 - 8 3 . 9. Washington's Circular Letter, 8 June 1 7 8 3 , in ed. Jack P. Greene, Colonies to Nation 1763-1789: A Documentary History of the American Revolution (New Y o r k : W . W . N o r t o n & Co., Inc., 1 9 7 5 ) , p. 4 3 8 ; Bailyn, Ideological Origins, pp. 2 2 - 5 3 ; Jack P. Greene, " T h e Growth o f Political Stability: A n Interpretation of Political Development in the A n g l o A m e r i c a n Colonies, 1 6 6 0 - 1 7 6 0 , " in John P a r k e r and Carol U m e s s , eds., The American Revolution: A Heritage of Change (Minneapolis: A s s o c i a t e s of the James Bell Library, University of M i n n e s o t a , 1 9 7 5 ) , pp. 2 6 - 5 2 . 10. Sir William Blackstone, Commentaries on the Laws of England, 4 vols. (Philadelphia, 1 7 7 1 - 7 2 ) , vol. 1, pp. 1 6 0 - 6 2 ; Bailyn, Ideological Origins, pp. 1 7 5 - 9 8 ; Robert R. P a l m e r , The Age of Democratic Revolution: A Political History of Europe and America, 1 7 6 0 - 1 8 0 0 , vol I : The Challenge (Princeton: Princeton University Press, 1 9 5 9 ) , pp. 2 1 3 - 3 5 ; ed.

Values and Society in Revolutionary America

Edward M e a d Earle, The Federalist (Washington, D . C . : National H o m e Library Foundation, 1 9 3 7 ) , no 53, p. 348. 11. Williams, History of Vermont, pp. 3 4 2 - 4 4 ; Paine, A Serious Address to the People of Pennsylvania. . . . (Philadelphia, 1 7 7 8 ) and Rights of Man, Part Second (London, 1 7 9 2 ) in Foner, ed., Complete Writings, vol. 1, p. 3 9 0 , vol. 2, pp. 2 8 2 - 8 3 , 2 8 7 ; and Gordon S. W o o d , The Creation of the American Republic, 1776-1787 (Chapel Hill: University of N o r t h Carolina Press, 1 9 6 9 ) , esp. pp. 5 1 9 - 6 1 8 . 12. Bailyn, Ideological Origins, pp. 1 9 8 - 2 2 9 ; W o o d , Creation of the Republic, pp. 5 2 4 - 4 7 . 13. W o o d , Creation of the Republic, pp. 6 5 - 7 0 , 6 1 0 - 1 1 ; Adair, " T h a t Politics M a y Be Reduced to a S c i e n c e " ; M a r t i n Diamond, " D e m o c r a c y and The Federalist: A Reconsideration of the F r a m e r s ' Int e n t s , " American Political Science Review 5 3 ( 1 9 5 9 ) pp. 5 2 - 6 8 . 14. O n this point, see Jack P. Greene, All Men Are Created Equal: Some Reflections on the Character of the American Revolution (Oxford: Oxford University Press, 1 9 7 6 ) . 15. J. R. Pole, " H i s t o r i a n s and the Problem of Early A m e r i c a n D e m o c r a c y , " American Historical Review 67 ( 1 9 6 2 ) , pp. 6 2 6 - 4 6 ; Richard Buel, Jr., " D e m o c r a c y and the A m e r i c a n Revolution: A Frame of R e f e r e n c e , " William and Mary Quarterly, 3d ser., 21 (1964), pp. 1 6 5 - 9 0 . 16. See Williams, History of Vermont, pp. 342 3 4 7 - 5 9 , for a discussion of the attributes of A m e r i can government. 17. T h e term " v a l u e s " is used here and throughout this paper in its general vernacular sense of the larger goals, purposes, or objects which constitutions, institutions, laws, and other political instruments a r e designed to achieve. See Judith Blake and Kingsley Davis, " N o r m s , Values, and S a n c t i o n s , " in Robert E. L. Faris, ed., Handbook of Modern Sociology ( C h i c a g o : Rand M c N a l l y & Co., 1 9 6 4 ) , pp. 4 5 6 57. 18. M o s t of the major state papers of the Revolution a r e conveniently reprinted in Greene, ed., Colonies to Nation. 19. See Cecelia M. Kenyon, "Republicanism and Radicalism in the A m e r i c a n Revolution: A n OldFashioned Interpretation," William and Mary Quarterly, 3d ser., 1 9 ( 1 9 6 2 ) , pp. 1 5 3 - 8 2 ; Paine, ' T h o u g h t s on Defensive W a r " ( 1 7 7 5 ) and Rights of Man, Part Second, in Foner, ed., Complete Writings, vol. 1, pp. 3 6 3 , 3 8 8 , vol. 2, p. 5 4 ; Williams, History of Vermont, pp. 337, 359. 20. Charles Pinckney, Speech, 25 June 1787, in Greene, ed., Colonies to Nation, pp. 5 3 2 - 3 3 ; Kenyon, " R e p u b l i c a n i s m and R a d i c a l i s m " ; David S. Lovejoy, " ' R i g h t s Imply Equality': T h e Case A g a i n s t A d miralty Jurisdiction in A m e r i c a , 1 7 6 4 - 1 7 7 6 , " William and Mary Quarterly, 3d ser., 16 (1959), pp. 459ff.; J. R. Pole, " L o y a l i s t s , W h i g s and the Idea of Equali t y , " in Esmond W r i g h t , ed., A Tug of Loyalties:

59

Anglo-American Relations, 1765-85 (London: Institute of United States Studies, 1975), pp. 6 6 - 9 2 ; Robert Ginsberg, "Equality and Justice in the Declaration of Independence," Journal of Social Philosophy 6 (1975), pp. 6 - 9 . 21. Williams, History of Vermont, pp. 330, 3 3 6 37; Paine, " S i x Letters to Rhode Island" (1782) and Rights of Man, Part Second, in Foner, ed.. Complete Writings, vol. 1, p. 281, vol. 2, p. 337; Greene, All Men Are Created Equal. Discussions of American considerations of the meaning of equality may be found in Wood, Creation of the Republic, pp. 70-75, and Willie Paul Adams, Republikanische Verfassung und bürgerliche Freiheit: Die Verfassungen und politischen Ideen der amerikanischen Revolution (Darmstadt und Newwied, 1973), pp. 162-90. 22. Pocock, Machiavellian Moment, pp. 527-45. 23. Paine, " T h e American Crisis" (1783) in Foner, ed.. Complete Writings, vol. 1, p. 232; Earle, ed.. The Federalist, no. 1, p. 7.

60

24. Williams, History

of Vermont,

p. 369.

25. Ibid., p. 372. 26. Jack P. Greene, ed., "William Knox's Explanation for the American Revolution/' William and Mary Quarterly, 3d ser., 30 (1973), p. 3 0 0 ; MichelGuillaumme Jean de Crevecoeur, Letters from an American Farmer (1782), as reprinted in Willard Thorp, Merle Curti, and Carlos Baker, eds., American issues, vol. 1 : The Social Record (Philadelphia: J. B. Lippincott Co., 1941), pp. 1 0 4 - i ; Alexis de Tocqueville, Democracy in America (New York: Vintage Books, 1954), vol. 1, p. 55. 27. Crevecoeur, Letters, pp. 1 0 4 - 6 ; Williams, tory of Vermont, pp. 324-33, 372-76. 28. Wood, Creation

of the Republic,

His-

p. 610.

29. Paine, Rights of Man, Part Second, in Foner, ed., Complete Writings, vol. 1, pp. 3 6 0 - 6 1 ; Williams, History of Vermont, pp. 345-46, 358. 30. Williams, History

of Vermont,

p. 346.

MAINTENANCE OF REVOLUTIONARY VALUES by Alfred H. Kelly and Richard D. Miles T h e American system of constitutional liberty, which first flowered in the era of the American Revolution, has roots buried deep within the colonial, English, and Western cultural heritage. Its values and institutional structure have to some extent exhibited an extraordinary continuity; nonetheless, the system has evolved and developed with the growth of the American social and political order and with the successive political crises through which the United States has passed. Paradoxically, as American constitutional liberty enters its third century of national identity, it has not only flowered magnificently once more, it also has entered a new era of crisis which again threatens its existence and which almost certainly will result in profound changes both in the system's values and in its institutional structure. T h e Revolutionary era of two centuries ago saw the emergence for the first time of two or three closely related ideas about man and his relation to the state which were to serve as the foundations of the American system of constitutional democracy. Put too briefly, these were the idea of limited government or constitutional supremacy, the idea of natural rights, and the concept of an open society. All were closely associated both in theory and practice; all had venerable origins, some of which in fact went back to the ancient world. If the modern reader will turn to the first book of Plato's Republic, he will find a dialogue between Socrates and Thrasymachus the S o phist upon the nature of law and the state. Thrasymachus, in a direct anticipation of an argument that Marx would invoke more than 2 , 0 0 0 years later, adopts a totally cynical view of the nature of law. T h e dominant classes in any society, he says, get control both of the priesthood and the instruments for lawmaking; thereupon they fashion both the law and religious belief to suit their own interest, persuading the populace that what they wish to be secular and profane law is, in fact, the command of the gods. But Socrates, whom Plato sets up as Thrasymachus's antagonist, will have none of this. Admittedly, he

says, men in power may seek to corrupt law to their interests. But true law is something much more than that; it reflects certain eternal truths which flow from the nature of the gods themselves. Thus, for the first time the idea of natural law was explicitly stated: that there is a certain natural harmony in the universe which reflects the nature of God himself and which certainly God cannot and would not change. Further, the fundamental principles of natural law can be discovered by the application of human reason, to serve as the foundation of a rational and more legal system. A few centuries later, Cicero, the great Roman lawyer-philosopher, would give expression to the same idea in his De Legibus, proclaiming that man-made law must so far reflect the natural harmony of the universe that if the Senate and the Roman people themselves (the highest source of sovereignty he could conceive of) should make robbery, adultery, or the falsification of wills law, such pronouncements still would not be such, for they would defy the natural harmony of the gods. This notion of a natural harmony in the universe which men could discover by reason and incorporate in a system of rational positive law passed down into the medieval era, where it reappeared in the writings of Aquinas and the other great churchmen. And in the late 16th, 17th, and 18th centuries, it came to maturity in an extraordinary flowering of political theorists, virtually all of whom seized upon the idea of natural law as the theoretical foundation upon which to erect a theory of sovereignty and the parameters of the power of the state. There were a great many such, from Richard Hooker and John Milton to John Locke, Algernon Sidney, John Harrington, Emmerich de Vattel, Samuel Pufendorf, Jean Jacques Burlamaqui, and a host of others. By far the most important of these writers for subsequent American history was John Locke, the theorist of the Glorious Revolution of 1 6 8 8 - 8 9 , whose Second Treatise of Government by the eve of the American Revolution was so well known as to serve as a kind of bible of political theory for the American colonists. Like several other natural law writers, Locke began by formulating the idea of a state of nature—a hypothetical time in the remote past, antecedent to the creation of the state, when men had existed in " a state of nature." T h e state of nature, Locke held, was not one of chaos and anarchy; on the contrary, it was one in which natural law prevailed and under which men recognized certain fundamental principles of right and justice, which determined the relations of men with one another. 1 Locke thereupon argued that because some men would not obey the dictates of natural law, it had become necessary for good men to covenant together to erect the state, into whose hands they surrendered the protection of natural law and the concomitant body of natural rights that now were recognized as derived ultimately from natural law. 2 Thus Locke adopted for himself the compact theory of the state, which, in fact, certain radical Calvinist writers had formulated a century earlier. The concept solved at one stroke both the problem of the legitimate origins of the state itself (a difficult one for

64

Alfred

H. Kelly and Richard

D.

Miles

political theorists after the disintegration of the idea of divine right) and the problem of the theoretical limits upon state power. T h e state, in other words, legitimized by its origins in natural law and by a political compact that brought it into being, in the final analysis existed solely to protect the rights derived from natural law. Thus, the state was obliged to guarantee all men certain fundamental rights, both against one another and paradoxically against government itself. It was this concept of natural law, natural rights, and limited state power to which virtually all the great political theorists of the age subscribed. Locke was very certain what the fundamentals of natural rights amounted to. They were the basic guarantees of life, liberty, and property which were to be found incorporated in successive great charters of English liberty from the time of King John: Magna Charta, the various confirmations of the charter, and so on. By the time Locke's Second Treatise was published, certain of the most fundamental guarantees of liberty and natural rights had been reduced to positive law in the so-called Bill of Rights of 1689. In reality, the English common law courts had for some centuries been engaged in formulating certain fundamental rights of Englishmen which the law guaranteed against the state. Over a long period, these courts had developed a series of procedural guarantees for defendants in criminal prosecutions and for the parties in civil cases, which one day would be described under the rubric of procedural due process. Originally, such guarantees had been developed with little or no reference to natural law or natural right; they were, instead, merely the "rights of Englishmen." But in the early 17th century, Sir Edward Coke of King's Bench had on at least two occasions invoked common law guarantees with language which at least implied a certain link between the rights of Englishmen and natural rights. It was an association which would become very familiar to the pamphleteers and political spokesmen of the American Revolution more than a century and a half later. It is necessary to add here only that the idea of the rights of Englishmen as embodied both in common law decisions and in the great charters, along with both natural law and natural rights theory and the compact theory of the state, made their way to the American colonies in the course of the 17th and 18th centuries, where in intimate association with one another they provided the foundation for the political ideas of the American Revolution. The basic American Revolutionary argument as first stated was that the British government, in the Sugar Act, Stamp Act, and Townshend Acts, was violating the fundamental rights of the colonists, who, as Englishmen, were entitled to all those rights commonly extended to Englishmen in Britain. After about 1 7 6 9 or 1770, the colonists tended to broaden their argument to include the notion that the rights of Englishmen were derived ultimately from natural law and natural right, so that the charters, the critical parliamentary statutes such as the Habeas Corpus Act of 1679, and the great guarantees developed in the corn-

Maintenance of Revolutionary Values

65

mon law courts were no more than expressions of positive law of the great fundamental guarantees inherent in natural law and natural right.

JEFFERSON'S REVOLUTIONARY IDEAS It was this theory of natural law, natural right, the compact theory of the state, and limited government that Jefferson incorporated in the Declaration of Independence, with its affirmation o f the " s e l f evident" truth that "all men are created equal," and that " t h e y are endowed by their Creator with certain unalienable Rights," and that " a m o n g these are Life, Liberty, and the pursuit of Happiness." There were, however, two rather revolutionary ideas in the concept of natural rights as Jefferson set forth the theory in the Declaration: first, that natural rights somehow were associated with a principle of human equality, and second, that there was a more fundamental human right than that of property—"the pursuit of Happiness." 3 T o grasp how revolutionary Jefferson's ideas were in their immediate meaning as well as in ultimate impact, one needs only to reflect that all governments everywhere up until that time, even in Britain, had been based upon what the historian Edward Channing (speaking of London's attitude toward her colonies) called " t h e great plum pudd i n g " principle: the government and the social order at large existed for the benefit of the privileged classes, whose superior wisdom, virtue, and social position entitled them to exploit the state for their own ends. It was this principle which Jefferson now was repudiating. His repudiation was inherent, also, in his rejection of property as the most fundamental human right after life and liberty and in his insistence that there was a greater right: the right of every individual to pursue his self-interest free of the restrictions of class privilege or unreasonable restrictions upon liberty imposed by the state. T o put it differently, the Declaration gave expression to a nascent American idea of equality of opportunity in an open society. It was an idea which Tocqueville would hail some sixty years later as a fundamental operative principle of the American social order. Jefferson did not invent the idea; on the contrary, the growth of fluid class systems and of a measure of political democracy had been distinctive phenomena in several of the American colonies for decades. T h e Revolution strengthened the democratic thrust of these forces and others already at work along the Atlantic seaboard. It destroyed established churches (only three, all in New England, survived beyond 1 7 8 5 , and they died out in the next forty years), liberalized criminal codes, opened the W e s t to mass acquisition of land by the middle class, and liberalized somewhat the franchise requirements. And while the Revolution did not destroy aristocracy anywhere, it shifted its base, ruining many old Tory families and weakening others, thrusting former petty bourgeoisie into new positions of influence, prestige, and power, and generally weakening the hold of the old aristocracy, in particular in the North, upon the social and political order.

66

Alfred H. Kelly and Richard D. Miles

THE MAGISTERIAL TRADITION IN AMERICAN SOCIETY But it must not be assumed from any of the foregoing that the D e c laration and the Revolution completed the putative union between the doctrine of natural rights and the idea of human equality. T h e courtship had begun, but the marriage had by no means yet been celebrated. In a great many critical respects the socio-political structure out of which the Declaration and the Constitutional Convention of 1 7 8 7 came was not democratic at all; indeed, from our point of view, even the impulse to a society in which all men and women were to be conceded real equality of opportunity was only a modest one. M o s t important, that was a society which still tolerated slavery. It is true that the Revolution itself released a substantial antislavery impulse in the United States, which in New England and the middle states resulted either in the outright abolition of slavery by court decision (Massachusetts) or in the passage of gradual emancipation laws, as in Pennsylvania, New York, and New Jersey. And in response to the same antislavery impulse, the Confederation Congress in 1 7 8 7 incorporated in the Northwest Ordinance of that year a provision forever banning slavery and involuntary servitude from the region north of the Ohio and west of Pennsylvania. But most of the Revolutionary leaders were only mildly disturbed, it would appear, at the continued existence of black slavery among them. Either they were blinded by self-interest to the incongruity of their position, o r — a s some Southerners would presently declare—they simply did not believe that natural rights applied to black people. As further testament to the very limited role which the idea of equality and universal human rights played in the early American Republic, it is necessary only to recall that the aristocratic tradition in politics was still extremely powerful. M o s t white males now had the vote, but landed and mercantile aristocrats, together with the more prosperous smaller merchants and small landed gentry along with their lawyer-spokesmen, were expected as a matter of course to take the lead in the political process. Since the early colonial era, there had been a powerful magisterial tradition in colonial politics, in which the magistrates were conceived of as holding power in a kind of trust bestowed upon them through the social compact but which nonetheless left the magistrates free to rule as they thought best. For at least a generation or so after the Revolution, the magisterial tradition continued almost uninterrupted in the state and federal politics of the new Republic. Thus, the convention which met at Philadelphia in 1 7 8 7 and which drafted the Constitution of the United States was very much in the magisterial tradition. T h e convention has on occasion been viewed by certain historians as something of a counterrevolution, which reversed the egalitarian thrust of the Declaration of Independence and restored the idea of magisterial authority. W e believe that is almost certainly an incorrect view of the matter. T h e men who assembled at

Maintenance of Revolutionary Values

67

Philadelphia were, by and large, drawn from the same class as those who had sat in the Second Continental Congress and put their names to the Declaration. (The names of six of the signers of the Declaration, in fact, are to be found among those of the thirty-nine men who signed the Constitution in 1787.) It was not that a counterrevolution was in progress; rather the convention's objective was, of necessity, a radically different one from that of the Continental Congress eleven years earlier. T h e task of the Continental Congress had been to formulate a rationale for revolution, that is, for the destruction of an outworn and unacceptable system of sovereignty. T h e convention's task was an almost precisely opposite one: to establish a new system of sovereignty, to describe, validate, and confine its mechanisms, and to describe, validate, and confine its sweep of power. This task the convention performed with extraordinary wisdom, insight, and success. 4 But the fact that the Constitution in no sense was a counterrevolution should not obscure the generally magisterial character of the gathering. T h e aristocratic tradition in the convention was very strong, as the names of George Washington, Edmund Randolph, Alexander Hamilton, Gouverneur Morris, Robert Morris, George Mason, Charles Cotesworth Pinckney, Rufus King, John Rutledge, John Dickinson, and John Langdon attest. Most of these men had been born to the purple; a few, like Dickinson, Hamilton, and Franklin, had risen to the top of the social order through fortunate marriages, successful business enterprise, or sheer brilliance. But with one or two possible exceptions, they thought and acted within the magisterial tradition; the word "levellism" (the 17th century Puritan Revolution equivalent of advocacy of egalitarian democracy) was a hateful term to them. Moreover, the document which they drafted, while it was an extraordinarily liberal and enlightened document for its day, reflecting as it did the best Enlightenment and Republican thought of the time, was nonetheless essentially a magisterial document. Very cleverly, the framers recognized and fitted the new constitutional system into the prevailing state distributions of political power, as indeed they were obliged to do if the document they were drafting were to have any chance of acceptance by the prospective state conventions. Thus, they equated the electoral franchise for the House of Representatives with that of the most numerous house of the various state legislatures, while in effect they allowed the legislatures of the various states to establish any system they wished for the choice of presidential electors. But in the resultant system, only the House was drawn directly from the electorate, however limited, of the several states. T h e Senate, chosen by the several state legislatures, was two steps removed from the people. T h e President, chosen by electors who conceivably might themselves be elected by the state legislatures, was at least two steps removed from the people; if the electoral college failed to cast a majority for a presidential candidate so that the final election was thrown into the House of Representatives, the chief executive was

68

Alfred H. Kelly and Richard D. Miles

three steps removed from the people. And the members of the prospective new federal judiciary, nominated by the President and confirmed by the Senate, would in turn be three or four steps from the people. The result was most emphatically a magisterial Constitution, highly intelligent and enlightened, but in no immediate sense democratic. T h e saving grace in all this, it would eventually turn out, was that virtually all the critical provisions involved were sufficiently flexible to be adaptable to the rise of political democracy. Without that flexibility and adaptability, the Constitution hardly could have survived.

THE BILL OF RIGHTS T h e amendments submitted to the states in 1 7 8 9 by the First Congress under the new Constitution, ten of which were to be ratified and to become known collectively as the Bill of Rights, represented a return once more to the problem attacked in the first portion of the Declaration: a statement of natural and historic rights, which now were to be translated into positive law. T h e authors of the Constitution had not believed a Bill of Rights to be necessary. As James Wilson put it, the new government, unlike that of the states, was to be one of limited and derived powers rather than residual sovereignty; therefore, under a familiar common law principle, it would be unnecessary to enumerate the limitations upon that government or to state the things it could not do. Such an enumeration, Wilson argued, might even be dangerous; enumeration of specific prohibitions and guarantees imposed on the national government might imply that it possessed other powers not specifically denied it. But this argument had yielded to the exigencies of the ratifying process: the proponents of the Constitution had used the promise of a Bill of Rights to win waverers over to ratification, and the First Congress considered itself to be morally bound to carry out the promises of the Constitution's advocates. T h e guarantees the new Bill of Rights imposed upon the national government fell generally into four categories. Most important for the great growth of constitutional liberty in the 20th century were those laid down in the First Amendment, setting forth what were to be considered the great fundamental guarantees of an open society: the prohibition upon any "establishment of religion"; the " f r e e exercise" clause; and a prohibition upon any abridgment by law upon freedom of speech, press, assembly, and peaceable petition. Every one of these guarantees had a century or more of history behind it; and their original meaning has been the subject of very considerable controversy among historians in the late 20th century. Thus E. S. Corwin thought the establishment clause prohibited only a state church in the formal European sense but not at all other accommodations between state and church, while Leonard Levy has argued that the Jeffersonian "wall of separation" theory was historically correct. And Zechariah Chaffee was to argue that the guarantees of freedom of speech and press radically altered the English common law meaning

Maintenance of Revolutionary Values

69

of these guarantees, literally prohibiting all or very nearly all restraints upon speech, a stance adopted also by Alexander Meiklejohn; while Leonard Levy was to argue with equal conviction that the speech and press provisions of the amendment did no more than incorporate the prevailing English common law guarantee of no prior restraint, leaving the English law of seditious libel still in force. W h a t is certain is that the amendment, except for the little flurry at the time of the Alien and Sedition Acts, was to sleep almost undisturbed into the 20th century, in part because of the obvious fact that the amendment's restrictions applied only to a government already limited by enumeration in its specific powers, in part because of the restricted and cautious role played by federal sovereignty in state-federal relations until nearly the end of the 19th century. Until 1 9 2 5 there was almost no hint of the constitutional "explosion" which has surrounded the amendment since that time, either in church-state relations, sedition law, or censorship. T h e second great set of guarantees, those of the Fifth, Sixth, Seventh, and Eighth Amendments, set down in positive law the ancient common law guarantees of the rights of Englishmen in criminal and civil procedure in the courts. Taken all together, they added up to the great fundamental guarantees of the fair trial which had been growing and developing since Magna Charta: due process, a prohibition upon double jeopardy and compulsory self-incriminating testimony, jury trial, venue in the vicinage, confrontation of witnesses, compulsory process for defense witnesses, the right to be informed of the nature of a criminal charge, and a prohibition upon excessive bail, excessive fines, and cruel and unusual punishment. Lurking behind all these guarantees, also, was a further one scarcely hinted at in the Fifth Amendment but fundamental to constitutional liberty: the subordination of military to civil power and a severe restriction upon the former's legitimate sphere of authority. Significantly, several of the procedural guarantees involved had only lately been the subject of controversy during the Revolutionary quarrel with Britain; thus the Administration of Justice Act of 1774 had grossly violated the guarantee of vicinage trial found in the Sixth Amendment. T h e Second, Third, and Fourth Amendments stated certain traditional guarantees of the rights of Englishmen running back to the quarrel between Crown and Parliament in the 17th century. Significantly, several of these had also been involved in some fashion in the Revolutionary quarrel. T h e Second Amendment's guarantee of the right of the people to keep and bear arms had arisen out of demands of the Puritan militia trainbands before the civil war of the 1 6 4 0 s , while the Third Amendment's prohibition upon the quartering of troops in private houses in time of peace not only antedated the Puritan Revolution but also had been the subject of recent disputes between America and Britain involving the Quartering Acts of 1765 and 1774. And the Fourth Amendment, with its prohibition against unreasonable search and seizure and its stipulation of warrants based upon probable cause, not only stated an ancient English

70

Alfred H. Kelly and Richard D. Miles

common law right but called up for most Americans memories of James Otis's celebrated attack upon writs of assistance on the eve of the Revolution, in 1761. Again, also, the Second, Third, and Fourth Amendments carried the flavor of the supremacy of civil over military authority. Finally, the Ninth and Tenth Amendments fell into a special category: they represented two generalized attempts to guard against the possibility of federal tyranny. The Ninth Amendment sought specifically to counter the Federalist argument that a national bill of rights might, by enumeration, imply a denial of rights which the new amendments did not succeed in listing; it provided that the enumeration of certain rights shall not be construed to deny or disparage others retained by the people. The amendment actually changed nothing and was essentially declaratory, in that it stipulated that which James Wilson and other nationalist lawyers had argued was the case anyway. Not until far down into the 20th century would the amendment acquire any substantial constitutional importance. The Tenth Amendment also was essentially declaratory: it reserved to the states or to the people powers not delegated by the Constitution to the United States or prohibited by it to the states. Significantly, the Congress, at Madison's instance, specifically refused to incorporate the word "specifically" in the amendment. Thus, the proposal left the enumerated powers of Congress potentially open to Hamiltonian and Marshallian construction and thus paved the way for the vast expansion of federal powers, notably through the commerce and taxing powers, which was to take place in the 20th century. Long afterward, states' rights conservatives, arguing that broad construction was a threat to liberty, would attempt to interpolate the word "specifically" into the amendment, but they were destined to ultimate failure. The new Bill of Rights, taken in the large, was entirely consistent with the Constitution ratified two years earlier. Its statement of the doctrines of limited government and an open society, and its enumeration of certain traditional common law guarantees, were like the Constitution itself, entirely within the value system of the Revolutionary era. And just as the Constitution in no sense had added up to a counterrevolution against the values laid down in the Declaration, so the guarantees of the new Bill of Rights were not in any fashion a repudiation of the charter drafted at Philadelphia. T h e amendments, for the most part, expressed familiar ideas which scarcely altered the limited federal Republic the authors of the Constitution had established.

REVOLUTIONARY VALUES AND CONSTITUTIONAL LIBERTY TODAY If we now engage in a great leap forward in time and subject this system of constitutional liberty and natural rights as formulated in the Declaration, the Constitution, and the Bill of Rights to a very broad and generalized scrutiny, it is possible at once to see certain

Maintenance of Revolutionary Values

71

very great evolutionary changes in the ideas of individual rights (they are not often called natural rights anymore), in the character of such rights themselves, and in the means whereby they are defined, implemented, and guaranteed. Crucial to any consideration of modern constitutional liberty is the fact that the very concept of self-evident natural rights derived from natural law has nearly died out of contemporary constitutional theory. In reality, the demise of the idea of natural rights began in philosophic theory in the late 18th century. At the very time that the Declaration gave the concept its noblest expression, David Hume had already launched a devastating attack upon the conception that man could, by a process of reasoning from a priori premises, discover certain fundamental principles of right and justice inherent in the universe, which could in turn be translated into coherent propositions about human right and human liberty. T h e higher law idea lived on throughout the 19th century, although with diminishing vitality, occasionally winning overt expression, as it did from William H. Seward at the time of the slavery extension crisis of 1850. Occasionally, also, the Supreme Court gave it some recognition of sorts. In the 20th century, however, the idea lives on in the writings of only a few Catholic philosophers, such as Leo Strauss. Such thinkers as Roscoe Pound, John Dewey, and Morris Cohen turned away from it completely, recognizing that it was a part of what Oliver Wendell Holmes, Jr., called " t h e illusion of certainty." In short, the great "self-evident" truths of the Declaration and the natural rights philosophers are no longer self-evident. In their place are the truths of various ideologies, grounded in many instances in the great propositions about man and society derived originally from the Enlightenment, but which are no longer capable of demonstration except through an overt stipulation of unprovable premises. T o put the matter differently, the underlying values of our contemporary explosion in civil rights and civil liberties may appear self-evident upon superficial perusal, but upon close inspection they appear to be compounded of our Enlightenment faith in reason and progress, a latter-day utilitarianism (the greatest good for the greatest number), which is in reality a logical extension of the Jeffersonian-Benthamite approach to social theory, and a latter-day concept of egalitarianism— one which in origin goes back to the Declaration and has been nurtured for two centuries by economic dynamism and class fluidity, but which in our own time has taken on a populistic flavor unknown to earlier generations. T o all this, one must add that expressions of so-called rights very often contain a power-relationship component (those associated with the Black Revolution are a good example of this fact) and that they may, on occasion, reflect the half-disguised competition for power of competing pressure and self-interest groups. There is potential for tragedy in all this, for it means that at the very time when the concept of individual rights in everything from due

72

Alfred H. Kelly and Richard D. Miles

process to racial equality is receiving unprecedented h o m a g e , both f r o m the Supreme Court of the United States and f r o m the society at large, the theoretical underpinning which g a v e such rights their vitality is gone. R i g h t s h a v e become pragmatic, not natural. W h a t this m e a n s ultimately is that the rights so confidently proclaimed in the last generation are in reality the product of the shifting realities of the dynamics of the social process. A " r i g h t " which the W a r r e n C o u r t thought to be f u n d a m e n t a l m a y be broken in upon, modified, or become inconsequential at the hands of the Burger C o u r t tomorr o w , simply because the ideological and p o w e r relationships reflected in the Court's membership h a v e changed. T h i s does not mean that the justices themselves do not s u f f e r from " t h e illusion of c e r t a i n t y " in the formulation of the propositions about the nature of right and justice which they proclaim. T h e y do not o f t e n refer to natural law in cultivating truth; rather they discover either historical truths or self-evident sociological truths which are formulated out of certain h a l f - h i d d e n ideological assumptions about contemporary society and the nature of the social process. There is nothing very new in this process; indeed the ideological and rational procedures by which the W a r r e n C o u r t arrived at some of its landmark decisions about private right resemble strikingly the f a s h i o n in which the C o u r t at the turn of the century translated the economic and social m y t h s of laissez-faire capitalism into conceptions of rights in private property against the state. T h e self-evident truths of Lochner v. New York (1905) with its translation, as Holmes put it, of Herbert Spencer's Social Statics into constitutional law h a v e vanished now. But the judicial approach to social reality, while it is a different apparent reality which is approached, and a reality seen through v e r y different judicial glasses, remains unchanged. T h e most spectacular example of this enduring fact is perhaps to be f o u n d in Griswold v. Connecticut (1965), the celebrated decision holding unconstitutional state legislation regarding the dissemination of birth control information. A s Justice Black observed correctly, the C o u r t had resorted in its opinion to essentially the same discovery of a self-evident ultimate r e a l i t y — i n this instance a right of marital p r i v a c y — a s P e c k h a m had indulged himself in in his Lochner opinion sixty years earlier. All this gives rise to a s o m e w h a t disturbing thought: the libertarianoriented rights w h i c h we proclaim so confidently with respect to racial minorities, w o m e n , accused persons, " f a r - o u t " dissidents, and the like, must be seen ultimately as nothing more than the product of the institutions, social pressures, and values of a certain sector of American society. It is not even certain, in m a n y instances, whether they represent majority-held values. In turn, this m a y well mean that they will prove just as frail and as vulnerable to the terrible erosive process of time as the link between due process and vested interest once proved to be. T h e only alternative to such a conclusion is the acceptance of some kind of theory of progressive revelation of social truth as a manifestation of cultural progress. In reality, h o w e v e r , such

Maintenance of R e v o l u t i o n a r y V a l u e s

73

a notion amounts to nothing more than a disguised version of natural law theory. The fact remains that, from the standpoint of a latter-day Enlightenment-oriented observer, the Supreme Court since the 1930s and in particular in the Warren era brought about through the decisionmaking process an extraordinary flowering of the idea of constitutional right and of constitutional liberty. In certain fundamental respects, also, the Court has worked directly within the value system generated by Locke, Coke, Milton, Harrington, Sidney, and the other natural rights philosophers of the 17th and 18th centuries. Other portions of the Court's decisions, those having to do with search and seizure, for example, are directly within the tradition of liberty formulated by the leaders of the American Revolution. Moreover, the Court's vast concern with procedural due process and the rights of accused persons which the Miranda, Escobedo, Powell, Wainwright, and Coolidge cases embody hearkens back to the centuries-long English concern with the rights of accused persons, the formulation of which already had been evolving for centuries at the time of the American Revolution. The colonists before 1770, with their reverence for Coke, had considered them to be integral to the rights of Englishmen, and Jefferson alluded to them in the third portion of the Declaration in the course of his charge against George III. Finally, the present Court is directly within the Revolutionary tradition in its concern for the great guarantees of an open society. Issues having to do with separation of church and state, for example, spring directly out of the Revolutionary movement for the disestablishment of state churches, the Virginia Statute of Religious Liberty of 1785, and the incorporation of the establishment and free exercise clauses within the First Amendment. And the Court's concern for free speech and in particular for the rights of dissident political minorities lies directly within the libertarian tradition of freedom of speech which took its departure from the very limited guarantees of "no prior restraint," but which by the time of the crisis over the Sedition Act of 1798 had progressed to the point where Albert Gallatin and his colleagues in Congress had formulated the first broad American-style guarantees of freedom of expression. A NEW IDEA: ENFORCEABLE EQUALITY Nonetheless, the modern Court's decisions on occasion carry within them implicit value systems which the Revolutionary era doubtless would have found foreign or at least strangely distorted. Thus the concept of equality within which the Warren and Burger Courts have operated has altered vastly since Jefferson first gave overt expression to the idea in the Declaration; indeed the idea of enforceable guarantees of equality as the Court has conceived them has altered substantially within the last thirty years. Since the time of the Declaration, in fact, the American idea of equality, which the modern Court translates into legal right, has gone

74

Alfred H. Kelly and Richard

D. Miles

t h r o u g h four or five distinct stages of evolution. T h e first stage, which Jefferson undoubtedly had in mind in part when he penned the Declaration, had to do with the centuries-old English idea of procedural justice for accused persons (habeas corpus, jury trial, evidentiary safeguards, and the like). T h e English caste system had interfered with the perfection of this system, but in America by the time of the Revolution formal caste as recognized at law had so far disappeared with respect to white persons that procedural equality was everywhere recognized. The second stage in the evolution of American egalitarianism, the extension of equal political rights to all white males, was well under way at the time of the Revolution and was to be consummated almost completely by the time of the Jacksonian era. Significantly, several states between 1820 and 1840 adopted new constitutions which embodied the guarantees of white male political equality. Meanwhile, a novel idea, which Jefferson may well have had in mind in 1776, was working its way into American society: the idea of equality of opportunity, a notion closely associated with the concept of an open society and a fluid class system. Already in the 1830s Tocqueville, Dickens, Harriet Martineau, and Mrs. Trollope remarked upon the American sense of social egalitarianism, which did not at all carry any guarantee of equality of condition, but rather merely that all white men were entitled, without regard to prior rank, family, or social status, to participate equally in the economic scramble incident to a highly fluid society. Associated with this was another nascent Jeffersonian idea: that of the utilitarian approach to public policy. The concept of the greatest good for the greatest number assumed that n o one social group would be favored overtly by the state without reference to the general public welfare. It is this concept of equality of opportunity along with those of equal justice and equal political rights which dominated the American scene far down into the 20th century. With the adoption of the 13th, 14th, and 15th Amendments, the evolution of the American idea of equality entered still another stage: the extension of the guarantees of procedural justice, political rights, and equality of opportunity to a succession of minorities formerly excluded from the American social process. The amendments were, of course, intended principally to liberate the black man and to incorporate him in the body politic. For the first time, the interpretation of the egalitarian ideal became a judicial function. But the Court at first entered this field with extreme caution and even reluctance, refusing to endow the 14th Amendment's "privileges or immunities" clause with any content of consequence, rejecting an interpretation of the equal protection clause which would have allowed Congress to legislate against private discrimination, and reconciling, through the "separate but e q u a l " myth, the idea of a racial caste system with a concept of a constitutional democracy. Within the last forty years, however, as everyone is aware, the Court has become a p o w e r f u l champion of racial equality, first insisting

Maintenance of Revolutionary Values

75

upon a rigorous interpretation of the " e q u a l " standard in the separate but equal formula, then, beginning with Brown I and Brown II, destroying first in education and then everywhere else in public facilities the very concept of separate but equal and legalized caste. The Court, moreover, within the last few years has reached out to extend the benefits of an all-inclusive egalitarian idealism to other minorities hitherto partially or completely shut out from the benefits of an open constitutional democracy and fair system of procedural justice: to women, to illegitimate children, to recipients of public welfare, to impoverished prisoners, and so on. All these are logical and rational extensions of the idea born in the Civil War and Reconstruction era: that it is not logically feasible in a constitutional democracy to exclude any minority from the benefits of an open constitutional society. Even as this process unfolded, however, a novel conception of the egalitarian ideal entered the marketplace of constitutional ideas and found its way both into legislation and into judicial decision: that it was not merely the duty of the government to remove the caste or other legal restrictions upon an open constitutional society but, in addition, the duty of both the federal government and the states to guarantee equality of position within the educational, social, and economic order through positive intervention by government. This is a novel and extraordinary development in the American egalitarian ideal, which to some extent may fairly be said to stand the old notion of equality of opportunity on its head and to replace it—as far as the concept goes—with an enforced equality of position. Insofar as this has received judicial sanction, it appears to be one major way in which the concept of constitutional liberty is being very significantly altered. There are numerous manifestations of this tendency, but undoubtedly the introduction of affirmative action by the Court into school desegregation cases beginning with Green v. County Board of New Kent County (1968) and continuing through the Swann, Wright, Keyes, and Bradley decisions is undoubtedly the most dramatic. It now becomes the duty of the state, once a finding of de jure segregation occurs, not merely to prohibit such segregation, but also to pass beyond that to a positive remedial program to correct the consequences of past racial injustice by altering the distribution of the races in the public schools. On occasion this has meant resort to racial quota systems of a kind which Justice Frankfurter, within another context, only a few years ago pronounced contrary to the spirit of American constitutional liberty. Through Title VI of the Civil Rights Act of 1964, moreover, the federal government, through Health, Education and Welfare, has taken it upon itself to assure the existence of appropriate quotas and salaried equality by race, sex, and cultural origin for university faculties and for student bodies, as well as in the great mass of industries that have any kind of contract status with government. The consequence of all this in many instances has been a curious kind of government-guaranteed equal status altogether at

76

Alfred

H. Kelly and Richard

D. Miles

odds with the traditional American conception of an open m a r k e t equality of opportunity. Very often, however, affirmative action has gone beyond a mere guarantee of equality for the minority or minorities involved and has embraced attempts at inverse discrimination in an effort to remedy long-standing social wrongs, both public and private. W h e t h e r one views such attempts with dismay, in the light of their obvious conflict with the traditional open-opportunity concept of American equality, or considers them to be merely the latest and grandest manifestation of the egalitarian dream released by the Declaration is in considerable part a matter of one's individual value system. T h e Supreme C o u r t thus far has refused to plunge into the maze of constitutional, legal, social, and political issues involved, preferring instead to dispose of the one major reverse discrimination case it confronted, DeFunis v. Odegaard (1974), on a technicality. Sooner or later, however, the Court, and ultimately American society, will have to deal with the inverse discrimination issue. T h e critical questions are obvious: does state imposed discrimination as a means of remedying past social injustice or inequalities in the class system purify such policies of the taint of violating the equal protection clause, as Justice Douglas's tortured and contradictory dissent in the DeFunis case at least implied? O r are such programs, at last, hopelessly unconstitutional? T h e answer, obviously, is tied intimately to the question of w h e t h e r the Court stays with a traditional Tocqueville concept of American equality or adopts the guarantee of position concept of the last few years. Of even greater lasting significance: what are the implications for the long-run structure of American society of a government program of enforced equality of opportunity? Does inverse discrimination penalize superior ability, enforcing a Iockstep of position, achievement, and eventually of class position which may ultimately reduce the creativity of American society? Will it alter class relationships significantly, by lifting hitherto suppressed minorities into adequately competitive positions in the American social order? O r will it prove unable to make any real impression upon the distribution of wealth, income, membership in the professions, and lucrative occupations that have traditionally characterized American society? Will it operate to reduce social tensions, or will it, in the long run, prove to have generated so m a n y hatreds and tensions of its own as to have frustrated more or less completely the noble aspirations such policies have embodied? The answers to all of these questions will ultimately have to work their way into the law of liberty. O n e tentative and highly controversial proposition may be advanced here: in the long run, a p o p u listic conception of rights—one that involves state-enforced equality of position as distinct f r o m the guarantee of equality of o p p o r t u n i t y — may break in very gravely upon a system of liberty which traditionally has been highly individualistic in its legal and theoretical foundations. One notable aspect of the new egalitarianism which calls for par-

Maintenance of Revolutionary Values

77

ticular comment is the proposed Equal Rights Amendment (ERA) for women, which at present writing is at least within striking distance of ratification. No enlightened person can quarrel with the amendment's general objective: presumably the elimination of whatever remains of social and economic discrimination against women in American society. A substantial portion of the criticism directed against the amendment has come from highly conservative traditionalists, who in spite of the major social currents of the 20th century to the contrary still believe that "woman's place is in the home." It constitutes a line of argument not likely to win many friends among those who have watched and studied with sympathy the long struggle, now more than a century old and going back to Lucretia Mott, the Grimke sisters, Carrie Chapman Catt, Susan B. Anthony, and so on, to eliminate discrimination against women in American society. However, analysis of the matter hardly ends there. To paraphrase Justice Holmes slightly, the amendment rests upon the proposition that there are no biological or psychological differences between men and women which either the law or private social institutions properly can take account of. But, in fact, the statute books of the several states are full of protective legislation for women based upon a contrary premise: that both biology and social structure on occasion impose special burdens upon women which in some circumstances demand special intervention and special classification by the state on their behalf. Nor has it been merely benighted males who have defended legislation and court decisions of this kind. The Progressive era—between the turn of the century and World War I—was one in which a great many highly intelligent women, among them Grace Abbott, Sophonisba Breckinridge, Jane Addams, and Florence Kelley, fought strenuous battles on the floor of one state legislature after another to get special protective legislation for females: hours of labor laws, factory sanitary facility laws, pregnancy leave laws, statutes creating special civil rights for women in marriage, special protection for female prisoners, and so on. Much of this legislation is still on the books. But as Professor Paul Freund has shown conclusively, ERA if adopted would cast doubt upon the special position of women at law in a great variety of respects, many of them damaging to women's rights. It is an argument that can hardly be disregarded lightly. There is quite evidently a class element in the debate over ERA. The women who sponsor the amendment most strongly are generally drawn from a professional and business background, for whom the special protective legislation of the Progressive era has little meaning. Thus, Martha Griffiths, lately a Representative from Michigan and a principal sponsor of ERA in the House, has directed her fire in considerable part at the discrimination which women encounter in law, medicine, college teaching, and so on. By the same token, some of the opposition to ERA has come from female labor leaders, among them Myra Wolfgang of the waitresses union, who sees ERA as

78

Alfred H. Kelly and Richard D. Miles

menacing the kind of special protection she still deems to be valuable for working women. It is conceivable, of course, that if the amendment actually wins ratification, it will undergo a process of judicial interpretation which eventually will allow women to have the best of two worlds.

THE FURTHER EXPANSION OF THE OPEN SOCIETY A second major respect in which constitutional rights and the law of liberty have undergone substantial change within the last generation or so is through the vast expansion of the dimensions of an open society. At the time of the Revolution, the concept of an open society already was winning general recognition, but the channels of expression involved were as yet rather limited. So far as the Constitution and the Bill of Rights were concerned, it meant little more than a guarantee of religious liberty and the disestablishment of religion; certain very elementary guarantees of freedom of speech, press, assembly, and petition; and the implicit subordination of military to civil authority. In actual practice, the dimensions of freedom of expression were extremely limited, as Leonard Levy has shown. Moreover, the unwritten philosophic assumptions of an open society were almost certainly stronger and more important than those involving formal legal guarantees: the notion of maximum freedom of movement, maximum economic discretion in a free market, and so on. These were primarily matters of institutional process and the silent operation of mores rather than of constitutional law. For a surprisingly long time, the constitutional dimensions of the American open society changed relatively little. In the area of freedom of expression, for example, the Supreme Court, as late as 1919, in defining the permissible constitutional limits of governmental suppression of seditious activity, could endorse formally the bad tendency doctrine as an offset to the "clear and present danger" which it had accepted the year before. And while the technical constitutional rationale and limits of the bad tendency concept were very different from the rationale the high Federalists had resorted to in 1 7 9 8 in defending the constitutionality of the ill-starred Sedition Act, the practical limits which the doctrine set upon freedom of political dissent were not very different from those of a century and a quarter earlier. Much the same thing might be said of the Court's decision in the Dennis case in 1951, in which, by means of the so-called sliding scale doctrine, it managed to rationalize " b a d tendency" prosecution of eleven Communist party members convicted, in effect, of a charge of having propagated a series of ideas about government and society alleged to be dangerous to national survival. T h e practical dimensions of the Smith Act, it appeared, were not very different from those of the Sedition Act of 1 7 9 8 or the Sedition Act of 1918. It is worth observing, also, that the Court during World W a r II almost completely abdicated its task of protecting the civil liberties of the loyal JapaneseAmerican population, abjectly surrendering to the argument of military necessity to which the Army, the Executive, and Congress in

Maintenance of Revolutionary Values

79

effect all subscribed. T h e result was an infamous 'concentration c a m p " stain on the record of American constitutional liberty. This was a by-product of the gravest of national emergencies, war, as were the suppressions of allegedly seditious activities before and since. But the Cold W a r era, reminiscent in so many ways of the circumstances of the 1 7 9 0 s which produced the first American Sedition Act, produced even more restrictions on civil liberties. Along with the Smith Act and the wave of prosecutions inspired by the Dennis decision, the McCarran Act (1950) and the Communist Control Act of 1 9 5 4 provided further effective checks on freedom of speech and political activity. T o these legislative enactments was added the action of the executive branch with the establishment of loyalty programs by Presidents Truman ( 1 9 4 6 - 4 7 ) and Eisenhower (1953). All of this raised serious constitutional questions, but for the most part, no important judicial assessments of constitutional liberties were forthcoming for some time. This may have been in part due to the reluctance of the judiciary to move against coordinate branches of government, though it may equally be surmised that among the members of the U.S. Supreme Court there was no sure majority of strong devotees of personal liberty. Furthermore, there is ample evidence that determined efforts to strengthen national security, however crude, however abusive of the delicate fabric of constitutional liberty, were popular. Popular will, it seemed, actually supported governmental power to make the open society somewhat less open. And yet, in a sequel familiar in the unfolding story of American constitutional liberty, it became clear that the idea of the open society survived the exigencies of war, both hot and cold, and, indeed, received a reaffirmation which carried it to such lengths as to form a major change in our idea of freedom. The role of popular attitudes was important in this, too—quite possibly the decisive factor in the long run, thus testifying to the profound significance of a newly aggressive populistic democracy in the determination of the dimensions of constitutional liberty. But clearly the resolution of the problem of freedom during dangerous times was achieved by the advent of a new Supreme Court, " t h e Warren Court," as common usage now has it. That presumably conservative decade, the 1950s, saw a remarkable change in the personnel of the Court, as President Eisenhower, in an exercise of appointive power rare in American history, was able to appoint five new justices to that tribunal. And President Kennedy, in his abbreviated tenure, appointed two more. So by the middle or late 1960s, when the new dimensions of the open society became abundantly apparent, it was indeed a decidedly different Court which had accommodated the new thrusts of popular feeling to the law of constitutional liberty. 5 T h e central matter of constitutional concern during the Cold War, the civil liberties of alleged subversives, began to receive constructive judicial attention toward the end of the 1950s. The Warren Court, without actually striking down the Dennis opinion, in Yates v. U.S. (1957) modified its interpretation of the Smith Act so radically as

80

Alfred

H. Kelly and Richard

D.

Miles

virtually to end prosecutions under that statute, while its opinions on the McCarran Act rendered the registration provisions of that law to all intents and purposes unenforceable. And a whole series of state loyalty program laws and loyalty oath statutes failed to pass the Court's scrutiny, most of them condemned because they suffered from the "vice of vagueness" or, by implication, infringed upon First Amendment rights. Even congressional and state legislative investigations, for a moment in 1957 ( W a t k i n s v. U.S.; Sweezy v. New Hampshire), were given a sharp check. Meanwhile, a good many forces were at work in American life to produce an unparalleled growth of egalitarianism: a larger and larger percentage of people were achieving a middle-class standard of living; organized labor became a part of the political and economic establishment; various minority groups (Jews, Poles, and others) were now well beyond the desperate struggles of the urban slums and became significant elements of the mainstream of American culture; there was a comparative decline of the old " W h i t e Anglo-Saxon Protestant" ascendancy; and there was an extraordinary expansion of higher education, which poured into business and the professions a flood of educated men and women, most of whom were libertarian in outlook and aggressively egalitarian in their attitudes toward politics and society. The resulting surge of an importunate spirit, kindled to new heights by the pervasive immediacy of television, wrested striking concessions to the claims of personal liberty from the body of established constitutional ideas. The moderately open society of American Revolutionary tradition was rendered impressively more open. The accommodations to this movement made by the Warren Court, and in many ways continued by the Burger Court, pertained to a wide range of matters; so wide, indeed, as to raise a serious question in the minds of many, including thoughtful libertarians, as to whether the extremes of openness might threaten to replace the fundamental notion of "ordered liberty" with a liberty so disorderly as at last to shake apart the very system long relied on for freedom's guarantee. Such a turn of thought was for some time pretty much restricted to extremely conservative opinion, or to those with a palpable selfinterest in the status quo. Thus the great movement to open American society to black people seemed to have majority support, at least until the appearance of the more advanced development of the idea of equality of position and affirmative action noted above. T h e next major expansion of the open society became important in the 1960s when the Court saw fit to interfere in state legislative and congressional apportionment. T h e new activism of the Court in this matter, launched in 1960 in the Gomillion case, was wholly apparent in Baker v. Carr (1962) and further developed within another two years in the Gray, Reynolds, and Lucas cases, among others. As a result, all voters throughout the United States had something like equal access to representative government, whereas before many had been virtually excluded by the happenstance of residence. When it came to extending the fullest possible measure of con-

Maintenance of Revolutionary Values

81

stitutional liberty to persons accused of crime, however, it began to appear that there might be some incompatibility between the spirit of populistic democracy and important American traditions. The rights of the accused, particularly the very explicit ones of the Fourth, Fifth, and Sixth Amendments, have often been misunderstood and misinterpreted in popular thought. The notion that invoking the Fifth Amendment protection against self-incrimination is a confession of guilt has been a painfully obvious example in recent decades. When the Warren Court undertook, in effect, an extensive reform of criminal procedure as evidenced in the Mapp, Gideon, Escobedo, and Miranda decisions, faithful adherence to constitutional guarantees seemed to produce results which were plainly contrary to justice: the "criminal," it was widely assumed, went free because of some esoteric technicality. This happened at a time when Americans were newly conscious of crime in their lives, for it was dramatized daily, and often quite explicitly, on television; it was prominent on many a page of the newspaper; it was constantly discussed in home, office, and shop; it was summarized in regular announcements of statistical summaries expressing a crime rate; and it invariably summoned up the picture of some repugnant person who was brutal, violent, and probably drunk or drugged. For a great many people, to talk of such a person having constitutional rights strained to the utmost the credibility of the very concept itself. None of this was lost on those running for political office, including the highest in the land. "Crime in the streets" became a theme of the Goldwater campaign in 1964, and contenders for high office have been obliged to discuss the matter ever since. This has provided an interesting case study of the durability of the judicially-promulgated reform of criminal procedure, for Richard Nixon made the matter, through denunciations of the Warren Court and talk of "law and order," a prominent theme of his 1968 campaign. He was the winner that year, and an impressive winner in 1972; he actually did have the opportunity to make four appointments to the Court, including that of a new Chief Justice; and the new Court has had ample opportunity to change the tenor of decisions regarding the procedural rights of the accused in criminal trials. By early 1976, it seemed clear that the Burger Court would at least stop the process of strengthening the constitutional protections of such rights and when at all possible would render decisions sympathetic to those engaged in prosecutions. This was especially evident in Harris v. New York (1971), which limited seriously the Miranda decision, and the reaffirmation of the credibility rule in Oregon v. Hass (1975). Another strong indication is found in Kastigar v. U.S. (1972) where the protection against self-incrimination provided by the Fifth Amendment was further weakened. It would seem, then, that the political process has been successfully employed to check the expansion of constitutional liberty in this area —ominous to some people, heartening to others. It is hard to believe that there are immediate practical consequences in this—that is, that

82

Alfred H. Kelly and Richard D. Miles

the crime rate has been changed by the new pronouncements of the Court. But there is a reenactment of an ancient problem of constitutional government based on the idea of people as the constituent power: how can we prevent the system which the people have created from diminishing the liberties it was intended to serve, when ? current majority wishes to do so? In the matter of criminal procedure, we might say that the Constitution, in the Fourth, Fifth, and Sixth Amendments, seeks to embrace all people in the enjoyment of certain precious rights; but recently it seems that many Americans wish to exclude some from the full access to the protections therein set forth. The eagerness of so many to restrict these rights is distressing to anyone who believes in the enduring value of limited government. No doubt it arises from a sense of crisis about crime in American society, a motive similar to alarm about national security in time of war. T h e extremity of the danger, then, becomes the justification for the limiting of freedom, or at least for a lack of interest in making it secure to all. In the case of war, Americans have generally been confident that the war would some day end, and then the freedoms, which have been suspended rather than canceled, might be resumed. W i t h regard to crime, a somewhat less confident expectation is probably in order, unless we can recover the Enlightenment assumption of the benevolence and perfectibility of our fellow citizens. Meanwhile, we might capitalize on the strong tradition we have from the Revolutionary era to create a truly open society, including therein even the poor and underprivileged, even when they are so unfortunate as to be accused of crime. Anyone who lived as an adult through the 1960s must be impressed with the startling expansion of the dimensions of permissible speech and publication, including movies. When the results are surveyed as of 1976, it seems fair to suggest that American society has accommodated a range of expression in writing, speaking, and pictures which would in some respects astound the Revolutionary generation— though, of course, the content would not really be novel to many of them. More and more people, it seemed, were convinced that there should be virtually no bounds to their utterances and that the First Amendment could be invoked as an absolute bar to legal restraint. The most spectacular controversy was the one over obscenity, still not satisfactorily resolved. It may well continue for some time to be what it was called years ago: " a constitutional disaster area." There had long been something of a tradition that material which was "lewd and obscene" lay outside the protection of the First Amendment. T o a large extent, this had been a widely accepted philosophical premise, a matter of common understanding so well respected as to be generally observed. Review by the U.S. Supreme Court of state laws on the matter had been rather inconclusive when the W a r ren Court in the late 1950s undertook a decisive effort to reconcile the conflict between the new First Amendment claims of free speech with the imprécisions of tradition. The principal result was the finding in the Roth case (1957) which set forth "appeal to prurient interest"

Maintenance of Revolutionary Values

83

as a test of obscenity; yet this elusive quality, which the Court meant to separate from a mere literary concern with the mysteries of sex, was nowhere defined. T o that was added a reliance on "contemporary community standards/' which introduced the supple element of fad and fashion in public opinion. Subsequent to Roth, where censorship was upheld, a number of additional decisions seemed to support the First Amendment claim of free expression. Then came the curious Ginzburg decision with its assertion that marketing methods (pandering) had tainted the materials themselves, and a criminal conviction was thus sustained. Yet in the same year, 1 9 6 6 , the Court found that Fanny Hill, an 18th century book which some of our founding fathers may have known, was not "utterly without redeeming social value," hence protected by the First Amendment. T h e Burger Court in the 1970s has tried to grapple with this matter, and has even undertaken once again a definition of obscenity. In the Miller case (1973) there appeared a reliance on some familiar ideas (contemporary community standards), new verbal puzzles (depicts or describes in a patently offensive way), and a revised reference to value (lacks serious artistic, political, or scientific value). Punishment for the sale of obscene matter and for exhibiting obscene movies was sustained in the 1 9 7 3 decisions (Miller and Davis cases), yet the larger consequences somehow were not consistent with those results. The ensuing proliferation of x-rated films and adult bookstores is familiar enough to anyone who looks around in any city. It may well be that there is a substantial acceptance among the American people that obscenity is more a sin than a crime, hence personal, philosophical, and impossible of legal definition. In some indirect fashion, it may be that private opinion, informally supporting a tradition of an open society will settle this matter more surely than formal constitutional pronouncements can. Religious freedom is one of the most firmly established features of the American tradition. T h e very founding of many of the colonies from which the United States grew was related closely to this matter. Well before the Revolution, a generous measure of religious freedom flourished in several places, religious toleration in many others, and religious pluralism was a distinctive feature of American society. Among the most revolutionary things which happened within America after 1 7 7 6 was the change in public policy regarding religion. To organize a body politic without a preferred state church, which is what happened in all but three states, was a most unusual arrangement, scarcely known throughout Western Christendom, then or now. Following disestablishment in the states, came the Jeffersonian idea of thorough separation of church and state, and then the incorporation of these ideas into the new national Constitution through the First Amendment. Exactly what was meant by the First Amendment, however, became a matter of continuing controversy after World W a r II, much of it centering around the relationship between religion and education. T h e critical question, then and since, has been: how complete must sepa-

84

Alfred

H. Kelly

and Richard

D. Miles

ration of church and state be? T h e Jeffersonian idea, which is the principal 18th century source of American practice, included a strong emphasis on the privacy of religious thought and practice, the neutrality of the state, and the immunity of the citizen from governmental compulsion, including involuntary participation in any particular religion indirectly through an activity of his government which either supported or suppressed this absolutely private enterprise. It is hard to avoid the conclusion that this mode of thought, coupled as it was with a strong aspiration for an open society, calls for the wall of separation to be pretty nearly absolute. Nonetheless, during the last two or three decades, the Court has held otherwise a number of times. T h e arrangements at issue in the McCollum case (1948), it seems, could hardly have been approved, since public school facilities were plainly being used for religious purposes—a rather common practice at the time. But, this case apart, when the support of religious purposes has been more indirect, the Court for a while acted on Justice Douglas's assertion in the Zorach case ( 1 9 5 2 ) that the wall of separation is not absolute and that to assert that it is would be to demonstrate hostility to religion. T o be sure, Justice Black, who had dissented in Zorach, was able ten years later to incorporate a reply to that idea in his opinion for the majority who held in Engel v. Vitale (1962) that a " R e g e n t s ' Prayer" in New York violated the First Amendment. T h e "establishment clause," he said, is not irreligious in spirit; instead it "relied on the belief that a union of government and religion tends to destroy government and degrade religion." And compulsory Bible reading in Pennsylvania met a similar fate when the Court declared the practice unconstitutional the following year. These decisions, though, prompted a renewal of the bitter controversy over the role of religion in the public schools which had lain uneasily quiescent for some years. There was a formidable drive for a " p r o - p r a y e r " amendment, an idea still in the air in the 1970s. As the crisis in school financing became grave, particularly so for parochial schools, in the 1960s, there were renewed demands for federal financial assistance to schools, public, private, and parochial. In 1963, Congress enacted a higher education facilities act which provided construction grants for institutions of higher education, including church-related colleges; and in 1971, in Tilton v. Richardson, the Court sustained the law. By 1 9 6 8 the Court had sustained, in the Allen decision, a New York law which provided for public financing of textbooks in private schools in grades seven through twelve. State laws providing direct subsidies of one kind or another to parochial schools—"parochiaid"—were stricken down by the Court in 1971 and 1973, but the matter is far from settled, for the techniques of indirect aid suggested by the Everson and Allen decisions encourage continuing efforts to find further avenues of support for church schools from public funds. O f all the areas where efforts have been made to expand American society by an even treatment of all, the tradition of state neutrality

Maintenance of Revolutionary Values

85

where religion is concerned is as clear a heritage of the Revolutionary era as any. Yet, of those discussed above—freedom of speech, apportionment, criminal justice procedures, obscenity (extreme freedom of speech), and religion—it is the last which portends the gravest danger, as the potential for divisiveness and antagonism is so great. The development of constitutional meaning here reflects the ambivalence of the latter 20th century on the matter. On the one hand, we have the end of required religious exercises in public schools, including prayers and Bible reading; on the other, we have public funds providing support, if often indirectly, for the operation of schools whose purpose is to a considerable extent a religious one. Historically, Americans have been for the most part an unchurched people, for until about the middle of the 20th century most of them did not profess membership in any church at all. 6 The statistics, of course, have their own peculiar infirmities, but they seem to tell us that in recent decades the small majority of church members has increased somewhat. The relationship, if any, of this trend to an apparently rising crime rate and the widely held belief that there is a decline _n personal morality is not quite the kind of puzzle with which we are concerned. But a constitution must serve an actual people with actual beliefs. One must assume that the populistic democracy prevalent it the dawn of the third century of national life has on its immediate agenda the reconciling of traditional constitutional values respectirg religious freedom and the new, energetic impulse to modify them in important ways. THE NATIONALIZING OF C O N S T I T U T I O N A L LIBERTY Finally, a third major change in the nature of constitutional rights is one which has been an integral part of the advent of enforceable equality and the expansion of the open society: it is the virtual triumph of the recent, powerful tendency to nationalize ccnstitutional liberty. The libertarian values of the Revolutionary era have a far greater reach and play a far more conspicuous part in Anerican lives today than ever before. This is in some measure a proiuct of the apparently relentless expansion of the national governmert so evident throughout American history; but, more important, it is the result of a kind of judicial activism which must have seemed most improbable only twenty years ago. During the first years of the Constitution, there had been some inclination to assume that constitutional liberty in certain fundamental respects flourished throughout the land, simply as a natter of the inherent purpose and meaning of constitutional govenment. And lying directly behind that thought was the philosophy of natural rights so recently and repeatedly proclaimed in the Revolitionary era. Certain federal judges in the 1790s, furthermore, assumtd that such an abstract principle of justice implied that, under the US. Constitution, final authority to articulate such fundamental right! was vested in the federal judiciary rather than in the state legisláures. Thus, Justice William Paterson found an act of the Pennsylvana legislature

86

Alfred H. Kelly and Richrd

D. Miles

invalid in 1 7 9 5 because it was "inconsistent with the principles of reason, justice, and moral rectitude" and "contrary to the principles of social alliance in every free government." And Justice Samuel Chase criticized an act of a state legislature because it was "contrary to the great first principles of the social compact." Such rhetoric, and the awesome magnitude of national judicial power it implied, receded in a few years as new issues diverted constitutional development into new channels. Most of the practical concerns for personal liberty were determined by state and local law, presumably limited by the bills of rights and other restraints on government found in state constitutions. While the 14th Amendment provided another kind of restraint on state government, it became clear in the closing decades of the 19th century that it had not, in fact, brought about the expansion of liberty which its framers had expected. It was not until well into the 20th century that the real potential of the 14th Amendment for constitutional liberty became active. Between 1925 and 1 9 3 2 the Court found in a number of cases that the federal Bill of Rights was a limitation on state police power by virtue of the due process clause of the 14th Amendment; for the most part, it was First Amendment freedoms which were protected in this manner. A most significant resumption of this idea came in 1937 when Justice Cardozo, while denying that the 14th Amendment automatically protected all the rights found in the first eight amendments, nonetheless said the rights "implicit in the concept of ordered liberty" were so protected. He also spoke of principles of justice " s o rooted in the traditions and conscience of our people as to be ranked as fundamental." This was distinctly reminiscent of the language of Paterson and Chase in another era; the 18th century was speaking to the 20th. By mid-century the Court had incorporated fully the guarantees of the First Amendment within the due process clause of the 14th Amendment, and modernized the meaning of First Amendment freedoms in many ways so that constitutional protection was given to picketing by labor unions, meetings in public parks, parades, pamphlet peddling, and other matters which state and local governments had so often forbidden. And one member of the Court, Justice Black, in Adamson v. California (1948) plainly asserted that the Court ought at once to declare the entire content of the federal Bill of Rights formally incorporated in the 14th Amendment. This was rejected by his colleagues at the time, and has not yet quite been embraced by the Court. But the Warren Court (of which Black was a member) ultimately performed most of what Black had urged. This was most conspicuous in the field of criminal trial procedures. In the 1960s, in one case after another, the process was evident, making it clear that the states were restrained by the Fourth, Fifth, Sixth, and Eighth Amendments—and they had long been restrained by the First. As Leonard Levy has said, " T h e Warren Court's criminal-law revolution, then, consisted in nationalizing the Bill of Rights." In addition, the Warren Court formulated a new constitutional law

Maintenance of Revolutionary Values

87

protecting an extraordinary range of private activities against interference by a state. Notable here were a controversial 1965 decision striking down long-standing state birth control legislation as a violation of a new-found right of marital privacy, a judicial nationalization of the law of libel that made public political criticism virtually immune from either private or criminal libel suits, the development of a new law of obscenity which was quite broadly permissive, and the new reach of separation of church and state which banned prayers and Bible reading from public schools. The momentum of change has not been sustained by the Burger Court; yet it had its moment of dramatic humanitarian-liberal activism in 1973 when it found state antiabortion statutes to be an unconstitutional violation of a right of privacy guaranteed by the 14th Amendment. And in a series of cases involving scurrilous, vulgar, and perhaps obscene language provocatively uttered in public, the Burger Court denied state and local authorities the right to prosecute the offenders, very nearly overruling the 1942 decision in Chaplinsky v. New Hampshire where the punishment of somewhat milder language had been sustained. The traditional weight of governmental restrictions on civil liberty in the United States had long been heaviest at the state and local level; this was now substantially lightened. However, it had been achieved by the exercise of a newly expanded power in the federal judiciary. Such activism in the national government would have been shocking and even repugnant to most people in an earlier day, but it now seemed more or less plausible because Americans had for some time witnessed a considerable expansion in government as a whole. Here, then, was a price which had to be paid for the nationalizing of constitutional liberty: the amazing growth in only a generation or two of the national government. If one branch, the judicial, had done much to enhance liberty, what was the record of the other two? As to the legislature, tne record is extremely complex. Many of the nation's new laws during the last half-century or so have been attempts to enhance the status and prospects of large numbers of people. On the other hand, some of those very laws have had mixed and limited results. The Social Security system, for example, virtually confiscates money from both an employee and his employer (who usually have no choice in the matter) for the sake of an extremely modest, if distinct, improvement in the employee's later life after he stops working. And it is remarkable that we have had three major laws which deal with sedition and subversion (1940, 1950, 1954) in this period and only two important ones ( 1 7 9 8 , 1 9 1 8 ) in the preceding century and a half. Presumably Congress is within reach of the people, though, since most of its members must stand for reelection every two years, and one must assume that over a generation's time any laws which are strikingly unpopular will be changed. Yet there is an important check on that process, for there is one person whose vote is worth that of nearly two-thirds of the members of Congress, namely the President.

88

Alfred

H. Kelly and Richard

D. Miles

Here, it seems, in the growth of executive power is a major potential menace to constitutional liberty. It may well be that the sheer growth of government in general is a great departure from the thinking of the Revolutionary generation; the one part of it which is most striking is surely that of modern presidential power. The central theme of the Declaration of Independence was the assigning of the loss of American liberty to the acts of the King; the first organization of a common government was one which had no executive power at all in any direct sense; even the newly devised state governments often provided only a limited executive authority; and the opponents of the U.S. Constitution in the ratification controversy made much of the potential for tyranny in the office of President, expressed by Patrick Henry when he denounced it by saying, " I t squints toward monarchy." Most of modern presidential power has developed in response to the great national crises of recent generations: depression, war, and quasi-war. There had been intermittent experiences with this along the way, of course: one thinks particularly of Lincoln and Wilson as assuming a virtual war-time dictatorship in the interest of national survival. But it was understood at such times that the extraordinary conditions would one day end, and things would return to a less regimented order. Recently, however, there has arisen an unarticulated assumption that we are always going to be menaced with the threat of war or depression, and therefore we must accept great reaches of presidential power in order to preserve the country. The spectacular events of recent presidential history are too well known at this moment to require repeating here; they are still being kept before us in books and movies. The most disturbing dimension of this is the persistence of the idea that we must expect Presidents to exercise great power; that it has been the abuse of power rather than power itself which is the evil; and the faith that this Bicentennial year is, happily, also an election year in which we can find a good person to whom this power may be entrusted. A careful reading of the U.S. Supreme Court's opinion in U.S. v. Nixon (1974) reveals a good deal of judicial self-restraint; most of the awesome power of the President remains intact. Little has been proposed for the reduction of presidential power. The election, it would appear, is expected to solve the problem by selecting an honorable person to whom such power may be entrusted. Few people seem impressed with the old notion that power corrupts. In striking contrast, the new reach of judicial power has generated a good number of proposals for its limitation. Those who have been disappointed in recent rulings have felt a bitter resentment that men in distant Washington have allowed offensive conduct to go unpunished. As one controversial decision has followed another, the ranks of the disappointment have grown. Some are angry about crime, others about pornography, many others about abortion, and perhaps the greatest number of Court-haters are those who are upset by court-ordered busing of school children. All this puts a considerable

Maintenance of Revolutionary Values

89

strain on the American political and constitutional system, just at a time when populistic democracy seems ascendant. T h e dominant thought in many people's minds is that the Supreme Court has frustrated popular will in many states and communities, where strong majorities have wished to close adult bookstores and x-rated theaters, get tough with suspected criminals, outlaw abortion, establish parochiaid, and send their children to the neighborhood schools which prompted them to take up their current residence in the first place. Inescapably, this will spill over into the political process even more conspicuously than it has in the recent past. W h a t elected officers of government can do in response to these pressures is not entirely clear. T h e most serious proposal is for new amendments to the Constitution which have the effect of overruling the Court. There is something of a precedent for this, of course, in the 11th Amendment, which restored a dignity to the states which the Court had destroyed, and perhaps in the 16th Amendment as an example of achieving that which the Court had forbidden. Yet we have been doing a good deal of amending lately. More to the point, no doubt, is the question of whether Constitution-amending is a sound way of formulating social policy. T h e experience with the 18th Amendment is not reassuring. A constitution should endure, and that of the United States gets much of its veneration because of its durability. But it is the durability of constitutional liberty which is the more particular concern. T h e essence of constitutionalism is the limitation of power, the foremost of the principles derived from the Revolutionary era; together with the commitment to natural rights, this made people confident in their expectation of an open society. T h e growth of constitutional liberty in recent decades is impressive, and it has been in the main guided by the values present at the founding of the nation. While grave problems await Americans in their third century of national life, the ideals of Jefferson, Madison, Adams, and the other libertarian-minded founders may still serve the cause of constitutional liberty.

90

Alfred

H. Kelly and Richard

D. Miles

NOTES 1. Thomas Hobbes, who published his Leviathan in 1651, disagreed with Locke; to him, the state of nature had been one of endemic war of "every man against every man," in which life was "poor, mean, nasty, brutish, and short." But Hobbes, who thus disagreed with the great majority of natural law writers, had virtually no influence upon the development of early American political theory. 2. O r as Tom Paine would have it in the opening pages of Common Sense 100 years later, "Governments are founded upon the ruins of the bowers of paradise." 3. It is true that George Mason had used a similar phrase a month earlier in the Virginia Bill of Rights, but it was left to Jefferson to give the idea its universal appeal. 4. William Gladstone, as every student of the Constitution knows, a century later was to describe the Constitution as "the most wonderful work ever struck off at a given time by the brain and purpose of man." O f course, the Constitution, while a brilli-

Maintenance of Revolutionary Values

antly creative work, was not simply "struck off"; it was the end product, rather, of the political philosophy of the Enlightenment in which the framers for the most part were steeped. 5. Two of the members of the Court who were not replaced, Justices Douglas and Black, furthermore, were usually among the most ardent advocates of strong restrictions on government efforts to limit constitutional liberty. 6. According to one set of statistics, church members were less than 35 percent of the total population of the United States in 1890; in all likelihood, the percentage was no larger, and quite possibly was smaller, in earlier years. By 1940, church members were 42.8 percent of the population; by 1950, 56.2 percent. This figure rose to 63.6 percent by 1960. U.S. Bureau of Census, Historical Statistics of the U.S., Colonial Times to 1957 (Washington, D.C., 1960); and U.S. Bureau of Census, Statistical Abstract of the U.S.: 1966 (Washington, D.C., 1967).

91

REPORT on the DELIBERATIONS of COMMITTEE I by Paul Bender and Martha A. Field T h e task of Committee I was to discuss the Maintenance of Revolutionary Values. T h e committee understood this topic as meaning to refer to Revolutionary values relating to individual rights.

SOURCES OF REVOLUTIONARY VALUES It was suggested at the outset that the committee ought to determine what the Revolutionary values were. This proposal led directly to a discussion of the sources of Revolutionary values. T h e committee observed that there were several different possible sources for what might be considered Revolutionary values, and that some of these sources were quite different in content and tone. T h e sources identified were: (1) T h e Declaration of Independence ( 1 7 7 6 ) ; (2) T h e C o n stitution of 1 7 8 7 ; (3) T h e Bill of Rights (Amendments I - X to the Constitution) ( 1 7 9 1 ) ; (4) T h e Civil W a r Amendments (Amendments XIII, X I V and X V ) ( 1 8 6 5 , 1 8 6 8 , 1 8 7 0 ) ; subsequent constitutional amendments such as Amendment X I X ( 1 9 2 0 ) . Discussion of the differences between these sources centered at first on differences between the original Constitution and the Declaration of Independence. T h e Declaration contains ringing phrases concerning rights, including equality, the topic on which the committee spent the major part of its time. T h e original Constitution, by contrast, contains virtually no guarantees of individual rights. This difference was attributed by the committee to the fact that the Declaration was a revolutionary document, an " i n d i c t m e n t , " a "series of impieties," not " a document to form a g o v e r n m e n t . " T h e Constitution, on the other hand, was a sober, responsible document designed to work, to create a stable system that could last. A s one committee member expressed it, when you write a " m a n i f e s t o " you use " h i g h - b l o w n " language, but when you " g e t down to divvying up and deciding who gets what —-when you really form an organization" then you write a document concerned with "organization and the distribution of power: who is

in charge around here and how do you decide when they have overstepped their boundaries." The committee, however, did not take the view that the absence of individual rights guarantees in the original Constitution indicated that the "ringing phrases" of the Declaration—that "all men are created equal," that they are "endowed by their Creator with certain unalienable Rights," and that "among these are Life, Liberty, and the pursuit of Happiness" were words only, rather than reflections of genuine values. As one committee member put it, the Declaration did indeed set forth the political philosophy of the leaders of the country at that time. " W e the People" were, for the first time in the history of mankind, undertaking to establish a government. Some of the declarations in the early part of the Declaration of Independence were to give substance to this notion and to set forth what the framers believed were the basic political philosophies that they wanted to live by. As confirming the fact that the Declaration reflected deeply held values, the committee pointed to the adoption of the federal Bill of Rights shortly after the original Constitution, as well as to the presence of similar declarations of rights in the state constitutions. In comparing the Declaration of Independence with the Bill of Rights, the committee noted the absence of any express reference to equality in the Bill of Rights. The committee observed, however, that the commitment to equality by the signers of the Declaration was not as strong as sometimes supposed. That all " m e n " were thought to be created equal certainly embodied the contemporary view that women were not equal to men. Nor did all men mean, literally " a l l " men, for slaves and perhaps descendants of slaves were excluded. The final draft of the Declaration even deleted what one committee member referred to as "Jefferson's noble condemnation of slavery" (actually a condemnation of the King for permitting slavery) in order to "have all the colonies together." This same committee member went on to observe that "[h]aving deleted the phraseology with reference to slavery, they then proceeded to add a number of references to Providence. This is not, in my judgment, the first nor the last time that piety has been used to cover perfidy." Another committee member thought that the deletion of the criticism of the slave trade "constricted the future by establishing the priority of the Union over the question of equality." The Bill of Rights itself was the product of compromise in the ratification process. In the words of one committee member: The people who were in the Philadelphia convention were not representative of the totality of the people who ultimately participated in the decision-making at the ratification conventions in the states. . . . In general, the haves of the society at that time

94

Paul Bender and Martha A. Field

wrote the Constitution, and in general those who were more or less aligned with the have-nots were the force among the antifederalists who resisted the Constitution sufficiently to secure the adoption of the Bill of Rights. T h e Bill of Rights, in all events, certainly reflected revolutionary values. The committee also believed that the extension of the principle of equality to blacks in the Civil W a r amendments, the further extension to women in the 19th Amendment, and the fundamental judicial development extending the protection of the Bill of Rights to the states through the 14th Amendment, reflected what, for its purposes, should be considered Revolutionary values. The committee, in the end, found itself discussing basic constitutional values relating to individual rights, rather than only those values which it could specifically attribute to the Revolutionary period. In part, the committee appeared to take this view because of its belief that the framers of the Declaration of Independence, the original Constitution, and the Bill of Rights intended a "living" Constitution, an idea discussed in the next section of this report.

THE PROCESS OF CONSTITUTIONAL INTERPRETATION— THE CONSTITUTION AS A LIVING DOCUMENT AND THE ROLE OF THE JUDICIARY Some members of the committee suggested that a useful way of clarifying the constitutional values would be to ask what kind of men the framers of the Constitution were: [ W ] h o were these people who were responsible for the Declaration of Independence and for the Constitution? W h a t strata of society were represented? Were the people really represented? W e know that the blacks, the women, were not represented. T h e framers represented the upper classes; they accepted the caste system that was part of the English situation at that time, modified to some extent by the privations of the New World. W a s it really just a few propertied whites who were responsible for this whole thing? Then after that discussion it would be useful to try to determine which of the English legal principles these men sought to retain. Other members of the committee said that neither small landholders nor merchants were well represented among the framers. T h e views and background of the framers, it was said, would give a better perspective as to which of the expressed values were meant to be taken seriously and which were simply "felicitous phrases," thrown in for their ringing quality, but not intended to be effectuated except, perhaps, in the remote future. The committee appeared to accept a characterization of the framers as upper class and elitist, but less so than other ruling groups in other nations at the time. They came from diverse backgrounds and they

Deliberations of Committee I

95

represented a relatively broad spectrum. In the committee's words, they saw themselves, not as "free agents," but as "responsible to an electorate" and, although it was a "propertied electorate," "there was a higher proportion of property owners in American society than there was in any other." Nevertheless, there was a reluctance to trust even a propertied electorate with too much power, as is shown by the electoral college system of electing the President and the lack of a provision for direct election of senators. Several committee members observed that property qualifications were probably justified in the framers' minds by the theory that, "in order to be a worthy participant and to possess virtue in the public sense of the word . . . it is necessary for the individual to be free of domination by the will of another man," to have "free will." Ownership of property was thought to provide the necessary independence. (A somewhat different view of property qualifications at the time of the Revolution was suggested by a committee member who said that "if people today had property in the same way that people then had property, they would certainly be in jail, and not be free property holders, because by and large it had been stolen from somebody.") The committee did not pursue a lengthy inquiry into the views and background of the framers because it concluded, fairly swiftly, that constitutional interpretation today was not—and should not be—governed to a great extent by what the framers specifically intended. One committee member remarked that, while we tend to think of the Constitution today as "a kind of immutable law," there wasn't the kind of expectation among the bulk of American political society [at the time the Constitution was adopted] that the Constitution would achieve the kind of sanctity that it now has. The expectation was that the Constitution, like all other documents of government, would eventually have to be modified, perhaps in very fundamental ways, as society changed, and that social change would inevitably mean constitutional change. There was general agreement that " a dynamic Constitution is a necessity," that the Constitution is "a living document." From the time of Chief Justice Marshall 1 we have interpreted the Constitution "in line with the political imperatives and the social imperatives of the day." Where the language of the Constitution presents "a blank wall," then amendment is necessary, but otherwise "the language can be informed by the realities of the day and the Constitution is thus preserved." One member of the committee, who is from England, remarked that it is an absolutely fundamental point to me as a European that, as I understand it, here in the United States, what Jefferson meant in the Declaration of Independence, what the fathers of the Constitution meant by the words which they used, is, of course, a matter of profound interest, but only a matter of his-

96

Paul Bender and Martha A. Field

torical interest, . . . a matter for historians and not a matter for lawyers. Words like "people," " m e n , " "liberty," or "equality" all have completely changed their meaning. Here you have a point which distinguishes American legal methods in a very significant way from legal methods on the other side of the Atlantic and especially in England. O n e committee member placed great stress on the amendment process, rather than the judicial process of constitutional interpretation, as the vital aspect of a living Constitution: I think that is the genius of the Constitution and that's why it survived—because it had that built-in device of amendment, and not so much [because of] the interpretation of the meaning in light of contemporary conditions. Every time a major problem has presented itself in the nation, the Constitution has been amended to deal with the problem, as with the right of women to vote and eighteen-year-olds subsequently. [Although it took a long time for the 14th Amendment to be construed] to prohibit segregation in schools . . . the 14th Amendment was [nevertheless] an amendment. . . . But for the amendment provision, the Constitution probably would not have survived. Most committee members, however, saw the ongoing process of judicial interpretation of the Constitution as the most vital element of constitutional dynamics. In one member's view "the most Revolutionary value of them all is the constant reinterpretation of the Constitution." Another member linked the practice of judicial interpretation to serious shortcomings in the original text, and proposed an extremely broad scope for judicial interpretation: I would challenge the rubric under which we are gathered: the maintaining of Revolutionary values. I should think we should be concerned with "attaining" rather than "maintaining," on the grounds that the actions that took place 200 years ago were not what they should have been. They disregarded the real concerns of equality and settled down mainly on the question of liberty. . . . [I]f we box ourselves in permanently to the horizons foreseen by the founding fathers, we will wind up continuing their errors. We need, therefore, to have at least a certain amount of irreverence for that document to which we pay supreme reverence. Or it may be that the most reverent attitude is one which seeks to complete the Constitution's unfulfilled intent. Another member saw the interpretative role of the courts as vital because of the limitations of the other branches of the federal government: [T]he war, if war it is, between the Congress and the Executive— or inside the Congress itself—is so shortsighted, is so immedi-

Deliberations of Committee I

97

ately partisan, that it forgets the longer-term Revolutionary values and ideals, and it is in the courts in this country and in the judges that there is being preserved that vision of an 18th century order, however adapted and changed by our interpretation of it, that is relevant in the 20th century. A number of reasons were given for the belief that, to serve their intended purpose, constitutional provisions regarding individual rights had to have the quality of incorporating new specific meanings. Society, in changing dramatically, has presented us with a whole new set of individual rights problems. In one member's words, the original Constitution assumed a kind of society that was simple and open; one in which there was relative plenty and a small amount of poverty; one in which there was a relative equality, at least among those people who could be considered men; one in which there was an extraordinary amount of activity, industry and enterprise unleashed by the openness, space and opportunities that were available throughout American society; and finally [one in which there was] a preoccupation with individual happiness—people were able to be concerned with that because there was so much space. Another member saw significance in the fact that "growth . . . is visibly running out as a means of giving satisfaction." A third observed that the Constitution was drafted at a time when the frontier was open, when there was a large percentage of land ownership, at least among the white male population. . . . [But] now we face a closed frontier. Now there is a much smaller percentage of ownership. And, more importantly, that percentage of the population which owns a controlling interest in the important institutions of society is smaller now . . . and power is more concentrated. Nobody ever conceived this. They conceived . . . that you should be free from a union between the church and the state. They never conceived of a union between corporations and the state. . . . [Yet] all of a sudden today . . . we are faced with corporations as powerful as the church was when unified with the state and as potentially dangerous to our ongoing freedoms as the church was 200 years ago. A fourth committee member saw enormous significance in the loss of "an assumption of shared values. . . . [A]s we have demonstrated around this table in two days, it's very difficult to identify the values which we may share." Although there was general agreement within the committee that the judiciary had a vital role to play in the process of interpretation

98

Paul Bender and Martha A. Field

of constitutional values, restrictions on judicial f r e e d o m to m a k e value choices f o r society w e r e also emphasized. R e l a t i v e l y little attention w a s paid to f o r m a l restrictions, such as concepts of justiciability. S o m e attention w a s paid to j u d g e - m a d e rules seeking to avoid the resolution of constitutional issues w h e r e v e r possible, 2 and to the judiciary's inability to enforce its o w n j u d g m e n t s , thus requiring ultimate dependence on popular acceptance. O n e committee m e m b e r , a legislator, wanted it made clear that if this g r o u p affirms the right of the S u p r e m e C o u r t to give expanded meaning to the Constitution, that p o w e r which the C o u r t asserts has to be asserted most judiciously. T h e C o u r t can take a leadership role, but if it gets too f a r ahead of the masses, it's going to undermine confidence in g o v e r n m e n t itself, and the reaction will be restrictive, and perhaps v e r y shortsighted, amendments to the Constitution. T h e people can be steered but they cannot be led in the long run in some direction in which they don't w i s h to go. T h e committee as a w h o l e seemed to v i e w judicial imposition of constitutional values as a last resort. A s one m e m b e r , a federal judge, put it: [T]he C o u r t s act w h e n they are c o n f r o n t e d by facts that just are impossible to live with, and I think that w e are going to h a v e to continue basically in that fashion. . . . I think w e m a k e a mistake, a serious mistake, if we look upon the S u p r e m e C o u r t of the United States as the primary tool f o r social change. . . . [ P o w e r flows to the judiciary] w h e n one or another branch of g o v e r n ment fails really to give effect to the aspirations of the peoples of the United States. W h e n the S u p r e m e C o u r t acts on an essentially R e v o l u t i o n a r y concept . . . they do it in extremis. T h e y do it w h e n there isn't anything else that decent h u m a n beings can d o — a n d usually these are essentially decent h u m a n beings w e have on the Court. W h y did they m o v e on the school [segregation] p r o b l e m ? 3 N o t because that w a s a logical w a y to g o about things. T h e y moved because the separate but equal doctrine 4 didn't even begin to w o r k . It w a s being ignored, flouted in e v e r y place in these United States, and they finally m o v e d a f t e r [ O k l a homa had put a black l a w student] in a b o x , a three-sided b o x , so as to screen her f r o m the white students. T h i s w a s such an inhumane thing that the Supreme C o u r t couldn't stand it. 5 . . . O r take Brown v. Mississippi.6 T h e F i f t h A m e n d m e n t has been on the b o o k s since the beginning, since the p a s s a g e of the Bill of R i g h t s , in a n y event. Y e t in Brown v. Mississippi they hung a man, with the deputies w h o were his legal guardians present. A n d they raised him up until he w a s choking, and then they lowered him d o w n and asked him questions. A n d w h e n he didn't give the a n s w e r s they wanted, they raised him up and lowered

Deliberations of C o m m i t t e e I

99

him down again. This was when the Supreme Court acted to enforce the Fifth Amendment against the states under the due process clause. M y point is that so many of these things could be dealt with by the President of the United States, by the Congress. This is the regular route for the validation of the concepts of the Constitution. And when you wait to where the courts are going to act . . . you wait for a period where the court acts in crisis or perhaps even in terrorem. Other committee members also lamented the failure of the executive and legislative branches of the federal government to exercise " t h e kind of leadership which the founding fathers would have thought legislators and presidents would routinely exercise." Several other important points regarding the role of the judiciary in the formulation of constitutional values were discussed. A member of the committee who is a legislator stated his view that the courts act most properly in protecting minority rights: " I f we were to leave it to a majority [such as a democratically elected legislature] to react to the preservation and protection of minority interests, we would move very, very slowly, simply because the majority is looking out for its majority interests." T h e entire committee agreed upon the enormous importance of Congress joining with the courts in furthering constitutional development and implementation. For example, even such a vastly important decision as the school segregation case 7 did not win popular acceptance and was not effectively implemented until supported by Congress through legislation. As a federal judge put it, it's probably true that the courts were ahead of Congress [on the issue of segregation], but the people in this country were not really convinced of the importance of desegregation until Congress moved, and there was no real accomplishment in the schools toward attainment of desegregation until Congress acted [in the Civil Rights Acts of 1964 and 1965], Finally, a number of committee members cautioned against relying too heavily on the judiciary to enforce constitutional values. It has only been recently—a development of the 1 9 5 0 s primarily—that the Supreme Court has assumed the role of leader in the area of individual liberties. Another federal judge observed that [a] 11 these encomia that have been showered on the federal courts and the Supreme Court about being liberal, being interested in human rights and individual rights, should be limited in time. T h e Warren Court is the only strongly liberal Court in our history that was interested in human rights. . . . T h e present Court, as everyone agrees, is likewise interested [to some extent], but there is no question that there has been a cutting back. . . . The history of our court system, particularly the federal court system,

100

Paul Bender

and Martha

A. Field

has been one of conservatism, not individual or human rights. . . . So I don't think we should bask in the sunlight of all this glory that's being heaped on us. I think the federal courts' record has improved only in the last quarter century, and, as I say, we have a period of regressive judgments going on right now. Still another federal judge linked judicial responsiveness to minority political power: " T h e Court began to respond to the demands of blacks [because], by 1954, blacks represented some kind of political group in the society (which had not been true previously) and were beginning to have some political influence." REVOLUTIONARY

VALUES

Equality T h e Revolutionary value most extensively discussed by the committee —indeed, the only value investigated by it in depth—was the value of equality. The committee paid its respects to the irony of this situation since, as has been noted earlier, the principal aspect of the value of equality as we think of it today—i.e., the protection of minorities and politically powerless groups from hostile discriminations—was apparently not an important value at the time of the Revolution and original Constitution. The ccntral statement pertinent to equality in the Declaration of Independence referred to equality only among "all m e n " and not even all men were included—slaves were clearly excluded, freed blacks may well have been excluded, 8 and non-propertied men were excluded, for at least some purposes. Nevertheless, the committee concluded that equality was a Revolutionary value in the sense that there was a principle strongly favoring equality among that group of persons who were recognized as full citizens. T h e development of the principle of equality under the Constitution has, in large part, been a process of adding groups of persons to the category of full citizens; once they are added, the Revolutionary principle of equality becomes applicable to them. There are two respects in which the committee's discussion of the value of equality differed in approach from the constitutional principle of equality as it has been developed in the Supreme Court, primarily under the 14th Amendment. Little attention was paid by the committee to the "state action" limitation in the 14th Amendment, under which only inequalities imposed by the government or its officials (or by a narrow range of private entities that, for one reason or another, are treated as the " s t a t e " for constitutional purposes) are subject to constitutional scrutiny. 9 T h e committee appeared to believe that private discriminatory action often raised the same problems as governmental discrimination. In part, this failure to distinguish between state and private action may be accounted for by the fact that the committee addressed itself to the values that ought to underlie legislative action, as well as to the values shaping judicial interpretation of the Constitution, although the committee did not explore the

Deliberations of Committee I

101

limits that exist upon federal legislative power to enforce the 14th Amendment. 10 A second way in which the committee's discussion of the value of equality differed from the judicial development of the equal protection clause of the 14th Amendment was in the committee's primary focus on the effects—rather than the purposes—of action or inaction challenged as a violation of the constitutional equality guarantee. As will be seen immediately below, the committee was most troubled by the question whether the constitutional value of equality encompassed equality of result, or only equality of opportunity—both questions of effect. The Supreme Court, on the other hand, has often seen equality cases as necessarily involving a challenge to the internal integrity of the governmental process—was it rational, rather than arbitrary; did it betray a hostile or other impermissible purpose? 11 The committee engaged in extensive, and often unstructured, discussions of the nature of the equality value incorporated in the Constitution. There was general agreement that in the United States, unlike many other countries, "people have a fundamental sense that they are all made of the same common clay." There were attempts to break the equality value down into components, and one committee member suggested six possible categories: equality of law; equality of political power; equality of religion; equality of opportunity; equality of esteem; and equality between the sexes. There was no general agreement that these or similar categories were either meaningful, independent of each other, or sufficiently comprehensive. Why, for example, should it be necessary to specify equality between the sexes— why didn't the other equalities take care of that? Ultimately, the committee's discussions focused on the difference between equality of opportunity and equality of result—the latter often referred to as equality of status or of position. Equality of opportunity suggests the obligation to give everyone the same chance at the good things of life, equality of position, the obligation to see that there is, in fact, an equal distribution of those goods. Affirmative action programs, such as minimum racial quotas for hiring or admission to academic programs, represented instances of enforced equality of position in the committee's view, whereas the equal application of identical standards to all applicants represented apparent equality of opportunity. When approaching these concepts as abstract generalities, the committee seemed to favor equality of opportunity, rather than equality of result, as the constitutional ideal, in large part because, as one member put it, "one of the prime values of our American society is diversity and the right to be different. . . . I do not conceive our object to be to make human beings interchangeable." The separation between the two kinds of equality, however, soon broke down. It was observed that true equality of opportunity, viewed from the perspective of the people involved, is impossible unless there is substantial equality of position. A child born into a poor, uneducated family does not often have the same opportunity to compete under equal standards with a child born into a rich, well-educated 102

Paul Bender and Martha A. Field

family. T o consider equal standards as affording equal opportunity to people from advantaged and disadvantaged backgrounds was a delusion. Equality of position is a necessary part of equality of opportunity in a society where economic goods are limited. O n e committee member said that " [ W ] e sort of suppose in these discussions that everybody starts off at the same starting line with the same blocks under their feet to shove off from. T h e fact of the matter is, that just is not so in our society." T h e committee ultimately resolved the dilemma between the ideal of equal opportunity and the reality of vastly unequal position by favoring a compromise between the two concepts. In the committee's view, the constitutional value of equality should be thought to demand the achievement of certain minimal standards of living for every person. These minimal standards would cover, among other things, food, housing, health care, education, and general opportunities for human self-fulfillment. T h e s e minima were necessary to ensure an adequately equal opportunity for every person. Diversity would, of course, exist above the minimum, but the minimum should be provided for all. T h e constitutional basis for ensuring a minimally decent life to all persons was not agreed upon; the committee was not dissuaded by its inability to draw directly upon the text of a particular constitutional provision. Another main thread which ran through the committee's discussions of equality was the concern that there might be an irreconcilable tension between equality and liberty—that achieving adequate equality of opportunity for all people would necessarily deprive some people of their freedom to make full use of their advantages. T h e view eventually emerged that the tension between liberty and equality was less serious than it at first appeared, because limiting the constitutional equality value to equality of opportunity plus the universal attainment of minimal living standards adequately protected both interests. Liberty was essentially freedom from governmental repression. T h e " l i b e r t y " which had to be surrendered to achieve a minimum of equality of position should be seen, not as a loss of liberty, but as a redistribution or sharing of liberty. As one committee member put it, [ejvery single step in the direction of social progress is a limitation of somebody's liberty to do something. I don't care whether you call this a socialist attitude—I think it i s — b u t I am convinced that all discussions about equality of opportunity or equality of anything else are meaningless unless one faces the fact that a considerable restriction of so-called freedom, especially economic freedom, is a precondition for the achievement of anything that is worth the name of equality of opportunity. In the words of another committee member, " t h e liberty of one person to have access to well-paid employment or to go to college may be gained at the expense of the liberty of another person who

Deliberations of Committee I

103

has previously had rather more choice in the matter, or whose class has. I do not see this as a loss of liberties; I see it as a redistribution of t h e m . " In the words of a third, I find myself just sitting here really rejecting the concept that we lose liberties by giving liberty to others. . . . If the liberty we were giving up was to somebody to start oppressing me, I would understand that. But, my Lord, what we are really doing is sharing the liberty concept . . . with people who have been excluded from it. . . . I can't seriously debate the statement that an employer feels restricted by the Equal Employment Act. . . . But the affirmative fact is that we are bringing people into the full light of American democracy who have been excluded before, and that's the way I would like to see us think and talk about it. . . . It seems to me that when most people talk about liberty they are talking about individual freedoms. They are talking about the right to speak, the right to think, the right to worship, the right to live, to hold property, not to govern other people either economically or otherwise. . . . [T]he right to e x p l o i t . . . is not the typical concept of liberty as we know it in this country. The committee spent a considerable time discussing minimum affirmative action quotas, and whether they are consistent with or mandated by the constitutional value of equality. Consistently with its preference for the value of equality of opportunity as contrasted with equality of result, the committee expressed a general distaste for quotas. It appeared to accept them, however, as an appropriate and often necessary remedy, for limited periods of time, to redress past discrimination, even past discrimination not specifically addressed to the people who benefit directly from the quotas, but to the class to which they now belong. T h e committee's apparent theory for requiring result equality here, in the form of minimum quotas, was that only such a remedy would restore conditions to where they would have been had equality of opportunity never been denied. Moreover, quotas in many areas would lead directly to enhanced equality of opportunity. O n e member cautioned, however, that " t h e curse of history, whether it is the great tragedy of the black race in the United States or the social history of a class-ridden country like England, cannot be removed by a stroke of the pen out of the legislature or the judge." There was an interesting discussion of quotas in regard to particular areas of society. Some members of the committee appeared to believe that the legitimacy of affirmative action quotas for minimum hiring depended on the position to be filled. While quotas were generally accepted as proper for hiring police and firepersons, there was skepticism (in a committee made up in large part of lawyers) about their use in bar admissions. Would quotas in the professions establish a group of lower-qualified or unqualified minority practitioners who would primarily serve a minority clientele? A discussion of

104

Paul Bender

and Martha

A.

Field

quotas for academic hiring produced a distinct division within the committee, with the academic members generally taking the position that they were inappropriate. High minimum qualifications were necessary, in their view, in the interests of future generations, and only members of academic disciplines could judge, on an individual basis, whether applicants had those qualifications. The judges on the committee, however, saw no distinction between academic and other hiring. Finally, some members of the committee expressed dismay at a developing legal situation in which "a court may order affirmative action which might involve quotas, but if the employer, whether a university or a public agency, attempted to do it privately by admitting, in effect, that it was guilty of a past pattern of discrimination, it might be placing itself in great jeopardy." In the limited situations where the committee endorsed equality of result as an appropriate constitutional value, great concern was expressed over who should pay the price of equalization. A recent decision of the Supreme Court' 2 granting retroactive seniority rights to blacks discriminated against in past hiring practices was the subject of much discussion. It was observed that those who paid the price of retroactive seniority were neither those responsible for the discrimination nor those best able to pay. Instead, the burden of equalization was unfairly placed on persons—i.e., non-black employees— who were only one rung higher on the economic ladder than those discriminated against. The burden should be placed on those at "the top of that ladder. . . . [ O t h e r w i s e what you end up doing is having working class white people feeling that they are having to pay for all the injustices of society . . . and that they're the people least able to pay, and it creates an . . . almost irresolvable class conflict." Some committee members believed that the insulation of persons living in the suburbs from sharing any proportionate economic burden for the problems of the inner cities was an analogous problem. The limitations on the powers and abilities of courts to devise more equitable remedies were stressed, and there was strong sentiment that Congress should turn its attention to these remedial problems. Other Values By the time the committee reached the discussion of Revolutionary values other than that of equality, there was little time to discuss those values in any detail. The format followed was for members of the committee to contribute to a list of those values that were considered most important. The first value discussed was, somewhat surprisingly perhaps, the value of domestic tranquility. The main question raised here was whether this was a true Revolutionary value or whether it was, instead, an expected result of respect for other values, the result of a fair and open society. The question was raised as to how domestic tranquility, if a Revolutionary value in itself, was to be enforced, without violating other constitutional values. With regard to domestic tranquility, one member gave his opinion that

Deliberations of Committee I

105

I don't think that domestic tranquility has to give a picture of America as a cow peacefully chewing her cud in a green meadow on a sunny day. I think domestic tranquility can encompass vigorous debate, can encompass marches in Birmingham, can encompass all sorts of things. [But] I would hope that it rejected violence as an acceptable technique for social progress. Another member suggested that domestic tranquility was not a value at all because " w e all know that inherent in the Declaration of Independence is the right to revolt . . . [w]hen you become sufficiently dissatisfied with the government." Discussion next turned to the possible Revolutionary value of exporting democracy. T h e committee believed that the framers may have thought of their handiwork as a model for the world, but some members expressed concern that any statement by the committee that our governmental system should be so viewed today was both smug and incorrect. At the same time, deep concern was expressed over the fact that in our foreign policy we have often undermined, rather than promoted, democracy by supporting dictatorships over democratic movements. W h e n the suggestion was made that the committee speak out against this practice as inconsistent with the Revolutionary value of serving as a democratic model, the matter was resolved by deciding that the issue was outside Committee I's jurisdiction, but was within the jurisdiction of Committee IV instead. A value that was mentioned often, but was little discussed, was the value of free speech and expression. T h e committee appeared to believe that this was not a controversial value—that it met with universal acceptance within relatively well agreed upon boundaries. Its great importance was assumed. Nor were freedom of religion or the separation of church and state much discussed, again apparently because these values were deemed to be noncontroversial and not under serious attack. One substantive point made regarding free speech was that abstract freedom wasn't enough. More effective platforms needed to be provided for the ordinary citizen: I would hope that the individual people themselves would have more of an opportunity to exercise First Amendment freedoms; not just the networks, not just the newspapers, not just the licensees of radio and television stations. I would like the people themselves to have access. It's not enough to turn over the streets to the people under the harassment of police in order to make parades and assemble and petition. I think in the third hundred years of the Republic . . . the people, the ordinary people, ought to have a means of expression, if that part of the First Amendment is going to mean anything. Another value mentioned was the respect for individual autonomy and privacy. T h e committee believed that this value should lead government to let persons do as they wished so long as they did not

106

Paul Bender

and Martha

A. Field

h a r m others in any tangible way. 1 3 T h i s would require an end to legislation punishing truly victimless crime. Finally, fairness of treatment by government—including fairness of procedures and rules against arbitrariness on the part of the government in treating individuals—was stressed as of the utmost importance. Freedom from harsh government oppression is perhaps the most basic value of all. O n e committee member, a European, volunteered that I suspect that I am the only person in this room who has ever lived under a dictatorship. If one has lived under a dictatorship, the question of what are the important values, the really fundamental values, answers itself: the very elementary fact that if there is a knock at the door it is the milkman and not the Gestapo. O n e member of the committee sought to sum up all the Revolutionary values as follows: I find it difficult, if not impossible, to assign priorities. . . . [ T ] h e [Supreme Court] debates about preferred positions [as between various constitutional rights 1 4 ] have been an astonishing waste of time. I do think, though, that I can find a kind of triad of values which supplement one another and ultimately reduce to a central value. They are freedom of expression—and I include in that the whole range of political, religious, philosophic and aesthetic expressions; the equality value in its total range; and finally the protection of people from being dealt with arbitrarily by the regulating forces of the society. [These three values] reduce to the single central value of the society, which is promotion of individual fulfillment.

CONCLUSION T h e committee concluded its discussions on an optimistic note, although it recognized that there was still much to be accomplished. As one committee member put it, " I wouldn't give anybody the impression that I think the fight is over, that vigilance should not be maintained, that injustice is not throughout this land, and that we should put down our oars and coast. I would not want to be a party to that." T h e committee wished to pay tribute to the enormous accomplishments that have been made, if for no other reason than to encourage attempts at further accomplishments. It is important to note that past efforts have succeeded and that future efforts can succeed as well. O n the other hand, the committee believed that most accomplishments have come relatively recently, primarily since 1 9 5 0 . O n e member said that " a good part of these 2 0 0 years that we have known gives us no reason to be p r o u d . " Some members of the committee also took encouragement from the fact that questions of equality were not exclusively racial any more, that " s e x has been

Deliberations of Committee I

107

thrown into the pot," so that "sex and race are marching side by side in the right direction." Others took encouragement from the belief that there has recently been increased voluntary compliance with constitutional values, which was seen as a sign of increased societal commitment to those values. Frequently mentioned shadows across the optimistic outlook were these: a feeling of "growing apartheid in American cities," flowing primarily from the school segregation situation. Meanwhile the Supreme Court refuses to break the line between the inner city and the suburbs for school integration purposes. 15 An increased amount of crime, especially in the cities, was also noted with alarm. Finally, several committee members emphasized the Supreme Court's recent tendency to reduce federal judicial jurisdiction in both the technical and real senses, so as not to get involved, as the federal courts must occasionally if a living constitution is to work, with some of our most serious current problems. 16 In one member's words, "I think this session should say that the access to the Bill of Rights is being endangered by the closing of the courtroom doors in recent days in the Supreme Court of the United States."

108

Paul Bender and Martha A. Field

NOTES 4 Wheat. 316 1. See McCulloch v. Maryland, (1819): [The] nature [of a Constitution] requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves. That this idea was entertained by the framers of the American constitution, is not only to be inferred from the nature of the instrument but from the language. . . . [W]e must never forget that it is a constitution we are expounding. 2. See Ashwander v. TV A, 297 U.S. 288, 3 4 6 - 3 4 8 (1936) (Brandeis, J., concurring). 3. Brown (1954).

v.

4. See Plessy

Board

of

v. Ferguson,

5. M c L a u r i n v. Oklahoma 637 (1950).

Education,

347

U.S.

483

163 U.S. 537 (1896). State

Regents,

339 U.S.

6. 297 U.S. 278 (1936). 7. Brown v. Board of Education, 347 U.S. 483 (1954). 8. T h e Dred Scott case, Dred Scott v. Sandford, 19 How. 393 (1857), subsequently held that freed blacks or their descendants could not be citizens of the United States within the meaning of the Constitution. This decision was reversed by the first sentence of Section 1 of the 14th Amendment. 9. See the Civil Rights Cases, 109 U.S. 3 (1883). For a leading case treating a formally private entity as the state, see Marsh v. Alabama, 326 U.S. 501 (1946) (involving a company town). A recent case refusing to treat a public utility company as the state is Jackson v. Metropolitan Edison Co., 419 U.S. 345 (1974). 10. See Katzenbach v. Morgan, 384 U.S. 641 (1966); Oregon v. Mitchell, 400 U.S. 112 (1970). Expansive federal legislative power has been recognized under the 13th Amendment, which does not contain a state action limitation, but which is limited to eradicating slavery and the "badges and inci-

Deliberations of Committee I

dents" of slavery. See Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968). In addition, equality concerns can be vindicated by Congress under other affirmative powers, such as the commerce power, having nothing to do with discrimination as such. See Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964); Katzenbach v. McClung, 379 U.S. 294 (1964). 11. See, most prominently, Washington v. Davis, 426 U.S. 229 (1976), decided two months after the committee's meetings were concluded: " [ T ] h e basic equal protection principle [is] that the invidious quality of a law claimed to be racially discriminatory must ultimately be traced to a racially discriminatory purpose." Effects alone have appeared significant to the Court, however, where inequalities touch upon constitutionally protected or certain 394 "fundamental" rights. See Shapiro v. Thompson, U.S. 618 (1969) (right to travel); Kramer v. Union Free School District No. 15, 395 U.S. 621 (1969) (right to vote); Griffin v. Illinois, 351 U.S. 12 (1956) (poor persons effectively denied initial appeal from non-capital criminal convictions). 12. Franks v. Bowman U.S. 747 (1976).

Transportation

Co.,

424

13. In upholding the constitutionality of prohibitions upon the distribution of so-called " o b s c e n e " material to adults wishing to obtain the material, the Supreme Court has recently apparently decided otherwise. See Miller v. California, 413 U.S. 15 (1973); Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973). 14. See, for example, Justice Frankfurter's concurring opinion in Kovacs v. Cooper, 336 U.S. 77 (1949). 15. See Milliken

v. Bradley,

418 U.S. 717 (1974).

16. See, e.g., Warth v. Seldin, 422 U.S. 490 (1975); Simon v. Eastern Kentucky Welfare Rights Organization; 426 U.S. 26 (1976); Rizzo v. Coode, 423 U.S. 362 (1976); Laird v. Tatum, 408 U.S. 1 (1972); Younger v. Harris, 401 U.S. 37 (1971); Stone v. Powell, 428 U.S. 465 (1976).

109

COMMITTEE II

EFFECTIVENESS of GOVERNMENTAL OPERATIONS* by Henry J. Abraham If it has p e r h a p s n o t been universally efficient, t h e r e is b u t little d o u b t that our A r t i c l e III b r a n c h , the judiciary, has b e e n the m o s t e f f e c t i v e o p e r a t i o n a l l y . In a n y e v e n t , despite the w i n d s o f f o r t u n e t h a t h a v e buffeted it, and despite its p o s t u r e as an e a s y target f o r public criticism and b l a m e , it h a s — w i t h but rare e x c e p t i o n s — a l w a y s received a h i g h e r rating o f esteem and regard f r o m the b o d y politic than e i t h e r of the o t h e r two b r a n c h e s . C o n c e d e d l y ,

the

percentage

of

a p p r o b a t i o n is rarely, if ever, m u c h higher t h a n o n e - t h i r d o f polled a m o n g the electorate, yet that figure has b e e n

voiced those

consistently

higher than that accorded the legislative or the e x e c u t i v e b r a n c h . T h i s is hardly an a s t o n i s h i n g fact o f g o v e r n m e n t a l life, f o r , in the m a i n , it has b e e n the j u d g e s w h o have k e p t the A m e r i c a n C o n s t i t u t i o n a l i v e — b y , in A n t h o n y Lewis's w o r d s , giving its 1 8 t h c e n t u r y p h r a s e s the flexibility to m e e t new c o n d i tions while at the s a m e time applying

its b r o a d l a n g u a g e

of

f r e e d o m to meet new d a n g e r s . T h e y h a v e articulated our ideals. 1 W h e t h e r reliance on that judicial p o w e r is wise or even s a n c t i o n e d is a different, and a l w a y s alive, source o f c o n t r o v e r s i a l c o n c e r n — o f w h i c h m o r e b e l o w . B u t w h a t e v e r o n e ' s c o n c l u s i o n s o n t h a t q u e s t i o n , our jurists h a v e long d e m o n s t r a t e d that they are e m i n e n t l y c a p a b l e

of

k e e p i n g the c o n s t i t u t i o n a l " s p i r i t alive b y their j u d g m e n t s and their w o r d s . " 2 R a r e is the visitor to the S u p r e m e C o u r t o f t h e U n i t e d S t a t e s , w h e t h e r he c a m e to praise or scold, w h o d o e s n o t s t a n d in a w e o f its institution and its m e m b e r s — w h o

does n o t willingly

conclude

that it is indeed, in L e w i s ' s p r o s e , " e n t i t l e d , as an i n s t i t u t i o n , to o u r faith."3 *Portions of the original issues paper other issues papers are omitted here.

that

overlapped

with

material

in

the

THE JUDICIARY T h e judicial branch is not, of course, free from either pragmatic or philosophical operational problems. T w o among these most vital to enhanced effectiveness are, first, that eternal question of finding a viable line between "judging" and "legislating" (or, as it might be put more descriptively, "judicial self-restraint" and "judicial activi s m " ) and, second, the ever-alive issue of what may be broadly subsumed under the concept of "court reform." Let us examine the latter first. Any judicial system or structure in democratic society with a constitutional base must essentially meet two basic requirements of public policy: namely, to protect society and to be fair to those accused of infractions of its legal structure. These two are naturally not incompatible, but they do demand the kind of line-drawing and/or balancing of which philosophical as well as pragmatic concepts of government and politics are made. Whatever one's views of the particular success or failure of specific judicial systems to draw these vital and so often vexatious lines may be, in the eyes of knowledgeable students of courts and judges there is always room for improvement. Suggestions abound. In general, they fall into three broad, interrelated categories: (1) those dealing with the institution and modus operandus of the courts themselves; (2) those concerned with the human beings who staff the courts; and (3) those dealing with the legal framework mandated by a society's lawmakers and its constitutional constellation. All three categories presumably are dedicated to the fundamental goals of any free, democratic, judicial system, which are those o f : 1. peaceful resolution of "private" civil conflicts; 2. enforcement of criminal laws; 3. safety valve for the amelioration of "repressive l a w s " ; 4. efficient operation; 5. restraint of government intrusions—both in the realm of individual rights and that of the separation of powers. Couching the following analysis chiefly in the form of questions that are sometimes, but not always, followed by suggested answers, we turn first to the institution of the judiciary and its modus operandus under our particular branch of the common law system. At the trial and pre-trial level, these questions arise: How effective is the adversary process, the "sporting game," in the quest for truth and justice? The late Judge Jerome Frank, in his still indispensable critique of that process and its substructure, Courts on Trial,4 could think of none less effective for and in that quest! Between the "lawyer g a m e " and the " j u r y game" in a system " t h a t treats a lawsuit as a battle of wits and wiles," 5 he could thus visualize none less likely to bring out the truth than our adversary process. Indeed,, it is a system geared crucially to the discovery of facts in a hostile, an adversary, setting in a court of law, in which a body of jurors—who are usually, at best, but marginally qualified to judge the issues and

112

Henry

].

Abraham

are increasingly chosen from panels of noncontroversial individuals whose regular activities society apparently does not value, with ample time on their hands and opinions, let alone training, on preferably nothing—pronounces a verdict more often than not on the basis of its views as to which of the two sides had the better (more colorful?, more attractive?, more vocal?, more charismatic?) lawyer. It may well be doubted that juries are in fact capable accurately to answer the general question of guilt or lack thereof; at best, they can probably respond to specific questions. 6 This is not the place to discuss the ethics of lawyers in an adversary system, but as an increasing body of literature 7 has begun to reemphasize, the average attorney's quest is more often than not victory for his client (and thus concurrently for himself) and not for principled justice. The Canons of Ethics, the Code of Professional Responsibility, seem to offer no serious competition, no particular barrier, in the pursuit of that victory, which is commonly attained—if not without hard work and careful planning— as a direct result of what Judge Frank pungently termed the successful invocation of the " F i g h t " v. " T r u t h " theory cum game. 8 It is one, as he concluded acidly—in words written twenty-seven years ago and still decidedly apposite—in which the lawyer aims at victory, at winning in the fight, not at aiding the court to discover the facts. He does not want the trial court to reach a sound educated guess, if it is likely to be contrary to his client's interests. Our present trial method is thus the equivalent of throwing pepper in the eyes of a surgeon when he is performing an operation. 9 It may thus well be asked whether the continental inquisitory system (the French enquete, featuring the institution of the juge d'instruction) might not be considered as a viable alternative to our accusatory one? How long can our society continue to practice a criminal trial system in which, in the words of attorney Jerry Paul, who successfully defended Joan Little in August 1 9 7 5 in a widely publicized and dramatized murder case, "the question of innocence or guilt is almost irrelevant." 1 0 In an interview following the trial, Mr. Paul said he " b o u g h t " Miss Little's acquittal and that it cost $ 3 2 5 , 0 0 0 . " I can win any case in this country," he cockily-proudly contended, "given enough money. I'm going to tell you the truth. You must destroy the charade, the illusion of justice." Mr. Paul continued that, by admitting that the acquittal was " b o u g h t " — t h e money was there to hire the best counsel, to mount an extensive jury selection process, to hire investigators, to fly in expert witnesses, to spend thousands on "counseling" for Miss Little to prepare her for her testimony—he was pointing up the defects of the s y s t e m . " The presiding jurist in the case, North Carolina Superior Court Judge Hamilton Hobgood, observed that he thought Mr. Paul was quite wrong—that the American legal system, not money, should be credited with the acquittal of the accused. 12 Yet the haunting doubts

Effectiveness of Governmental Operations

113

are not readily stilled. There is a crying need for dramatic change in the adversary system and its protagonists; and as Frank put it, " a considerable diminution of the martial spirit in litigation." 1 3 Neither minor nor major changes, however, can be effected absent active cooperation, and some genuine largesse, by and of the legal profession—whose members, after all, comprise fully two-thirds of the nation's legislators. W h a t of the efficacy and adequacy of the sundry tribunals that presently exist at the trial and the appellate levels of the judiciary? Actually, our federal system of constitutional, special, and legislative tribunals is well-organized, relatively simple in design, and would conceivably be quite capable of handling the enormous load of litigation—were it not for the increasingly overly-easy access (especially to the appellate level); excessive jurisdiction (on both trial and appellate levels); excessive jurisdiction (on both trial and appellate levels); chronic understaffing of lower and intermediate courts; and the almost axiomatic resultant delays (notwithstanding some noble statutory efforts to speed trials—noble in theory, irresponsible in design, for, as the Chief Justice of the United States has consistently complained publicly, the laudable statutory demand for speeding up of trials was not accompanied by the obviously vital statutory authorization for the concomitantly essential increases in court staffing). There is no dearth of advocacy 1 4 for reform to alleviate the fundamental problems alluded to, yet changes in the judicial structure have chronically been even more difficult to sell to the public and its representatives in legislative halls than have other measures and matters. De minimis, the following changes ought to be effected in the federal realm: (a) Three-judge courts should be abolished forthwith; their work has tripled in the past ten years, their jurisdiction and relative promise of Supreme Court review being tailor-made for stimulated as well as genuine litigation. Their functions should be submerged in the general orbit of the district courts. (b) Congress might be well-advised to consider some tightening of the rather generous appellate as well as trial pathways for habeas corpus and in forma pauperis cases, which presently constitute half of the Supreme Court's work load. Legislative tampering with the former is admittedly fraught with danger, yet it should be possible to continue to provide access for bona fide habeas corpus claims without entertaining "court g a m e s " (Justice Douglas's words!) and uncalled for duplicate filings and transfers. T h e latter have gotten out of hand and need jurisdictional as well as statutory remedial consideration. (c) There is simply no excuse for the continuation of the federal jurisdictional luxury of diversity of citizenship suits. These suits, which, of course, ought to be handled at the level of the states— especially since the federal courts have since 1938 been obliged to apply state law 1 5 —now constitute the single most numerous category of cases filed as civil suits. Chiefly comprising insurance claims, automobile accident, and personal injury suits, they should preferably be removed totally from judicial tribunals and placed at the bar of ad-

114

Henry

J.

Abraham

ministrative, ideally arbitration, panels. S o m e states, such as Pennsylvania for its first-class cities, have mandated resort to arbitration panels, requiring resort to such panels in all civil cases up to $ 3 , 0 0 0 in value, and permitting them up to $ 1 0 , 0 0 0 . 1 6 Found administratively at the county court level, Pennsylvania's arbitration panels handle an average of 1 0 , 0 0 0 cases annually—inexpensively, speedily, effectively. 1 7 (d) Notwithstanding Justice Douglas's often-voiced d e n i a l — and indeed his insistence, even during the months immediately prior to his health-dictated retirement from the Court after more than thirty-six and a half years of service thereon, that the highest tribunal was not overworked but underworked!—and, as the Chief Justice once again pleaded in his Year End Report 1 9 7 5 , help is needed. 1 8 T h e Supreme Court's case load is staggering. W h e t h e r the much-debated, widely suggested and almost equally widely condemned, proposal of the creation of a new appellate tribunal between the courts of appeals and the Supreme Court, to be known as " T h e National Court of Appeals," is the appropriate answer to the very real problem, is contentious. In any event, the current debate in the legal profession and in Congress is healthy. 1 9 M y own preference would be for a reduction o f jurisdiction along the lines of some of the above-suggested remedial steps rather than for the establishment of the new tribunal. 2 0 (e) T o increase judicial effectiveness in terms of time utilization at the level of the Supreme Court, it has been suggested that it abandon oral argument; yet the latter's drama, its visibility, and its undoubted educational facets, both internal and external, are born of the kind of commendable values that underlie the democratic process under law. (f) Periodically, C o n g r e s s — a s it, fortunately unsuccessfully, endeavored in the draconian Jenner-Butler Bill in the mid and late 1 9 5 0 s — toys with the notion of depriving the federal courts of significant areas of jurisdiction in favor of state courts. W h i l e there may well be considerable merit in some modest proposals along these lines of what is a periodic love affair with the federal s y s t e m — s o m e have been suggested immediately a b o v e — t h e r e must be no tampering with fundamental constitutional appellate prerogatives (as distinguished from trivial and frivolous ones). T h e presence of a multiple judicial structure of fifty-one separate systems is a fascinating dichotomy of blessing and bane. As long as our federal system endures—and Professor Tugwell makes an intriguing case for what to all intents and purposes is its a b a n d o n m e n t — b o t h the problem and promise inherent in such a structure in terms of the judicial process represents a genuine opportunity for the enhancement of governmental efficiency. But the baby must not be thrown out with the bathwater. Second, what of the status of court personnel, court staffing? There is neither space nor need in this forum to embark upon a detailed examination of the " w h o , " " w h y , " and " h o w " of court staffing—it has very recently been done in two extensive book-length studies for the federal judiciary 2 1 —but a few basic observations 2 2 antecedent to analyzing the profile of that personnel and possible reforms are warranted.

Effectiveness of Governmental Operations

115

The question of the principles that govern the selection of the men and women who sit on our judicial tribunals is both a moral and a political one of the greatest magnitude. Their tasks and functions are awe-inspiring indeed, but it is as human beings and as participants in the political as well as the legal and governmental process that jurists render their decisions. Their position in the government framework must assure them of independence, dignity, and security of tenure. T h e two basic methods of selecting jurists under our system are still appointment and election, although today a system combining the two is becoming increasingly prevalent. Yet the process of selection is assuredly more complex than that suggested by W . Curtis Bok's fictional Judge Ulan in Backbone of the Herring, who quips: " A judge is a member of the bar who once knew a Governor." 2 3 Most of the roughly 12,000 judges on our state and local courts continue to be elected, although the gubernatorial appointive method, often with legislative or bar advice and consent, is being resorted to increasingly—generally a development to be welcomed. On the other hand, the number of states adopting versions of the California and Missouri plans, which combine the elective and appointive methods, 24 is growing rapidly. The founders of the Constitution struggled at length over the selection of the federal judiciary. Under the Randolph Plan of Union, selection as well as confirmation by the "National legislature" was proposed; an inevitable counter-suggestion would have vested that power in the chief magistrate alone. Representatives from the small states were unhappy with the notion of exclusive executive appointment, fearing favoritism toward the large states, which they suspected might "gratify" the President to a greater extent. Madison recommended appointment by the Senate alone, but after second thoughts disassociated himself from this proposal. Ultimately, Ben Franklin's efforts and a spirit of compromise between large and small interests resulted in the adoption of a system modeled after one then being used in Massachusetts. It is still used today, and on balance it has proved to be workable professionally as well as politically. It is not universally understood that no legal or constitutional requirements for a federal judgeship exist—an especially surprising fact since each state in the Union has at least some statutory and/or constitutional requirements for at least some judicial posts. There does exist, however, an unwritten prerequisite for a post on the federal bench—a bachelor of laws degree. No one can become a member of the Supreme Court without that degree. Although it is not necessarily mandatory either to have practiced law or to have been a member of the bar, the American Bar Association Standing Committee on Federal Judiciary not only demands trial experience of a candidate for the judiciary, but also requires some fifteen years of legal practice to qualify the candidate for a passing rating. As a matter of historical record, no non-lawyer has ever served on the Supreme Court of the United States. Yet since most of the important questions to come before the Supreme Court, for one, today raise social and

116

Henry

J.

Abraham

political issues, one might well ask w h y does an appellate jurist, especially at the highest level, h a v e to be a l a w y e r ? In one of his last public statements prior to his retirement and death, Justice Black f o r m a l l y urged the appointment of " a t least one n o n - l a w y e r " to the C o u r t . T h e chances of affirmative action on that proposal are n i l — but it raises intriguing questions about the role of the Court, one so f r e q u e n t l y criticized as " l e g i s l a t i n g " rather than " j u d g i n g . " I n a learned essay calling f o r selection of Supreme Court justices " w h o l l y on the basis of functional fitness," Justice Frankfurter keenly a r g u e d that judicial experience, political affiliation, and geographic, racial, and religious considerations—characteristics that h a v e loomed large, indeed, in presidential selections to date—should not play a significant role in the selection of jurists. 2 5 He contended that, instead, S u p r e m e Court jurists should be at once philosopher, historian, and prophet—to which Justice Brennan, in a conversation with this writer, proposed to add " a n d a person of inordinate patience." Justice Frankf u r t h e r viewed their task as requiring "poetic sensibilities" and " t h e g i f t of imagination," as exhorting them to pierce the curtain of the future . . . give shape and visage to mysteries still in the w o m b of time. . . . [the job thus demands] antennae registering feeling and judgment beyond logical, let alone quantitative proof. . . . One is entitled to s a y without qualification that the correlation between prior judicial experience and fitness for the Supreme Court is zero. T h e significance of the greatest among the Justices w h o had such experience, Holmes and Cardozo, derived not from that judicial experience but f r o m the fact that they were Holmes and Cardozo. T h e y were thinkers, and more particularly, legal philosophers. 2 6 Felix F r a n k f u r t e r was quite right on the " f u n c t i o n a l f i t n e s s " issue. Objective merit, competence—and, w h y not, qualities of "philosopher, historian, and p r o p h e t " — s h o u l d be the sole criteria. Their presence need b y no means vitiate considerations of political and ideological compatibility—there is nothing whatsoever wrong with so-called court packing, provided the selectee is indeed meritorious and competent—but "personal f r i e n d s h i p , " unless quite secondary to the basic qualifications, and " e q u i t a b l e " considerations of g e o g r a p h y , race, sex, and religion should have no place in choice motivations. Even, indeed infinitely, more so than judicial experience, they are rank nonsequiturs qualitatively and should be shunned resolutely. T h e judicial branch was neither intended to be, nor should it be, a representative b o d y ! For representation, let the body politic turn to the legislative and executive branches. T h e judiciary's role is a dramatically different one—and ought to remain so. If the nominating authorities on both the federal and state levels will overridingly base their actions on considerations of merit and competence, there seems little need f o r any drastic overhaul in present selection methodologies—provided they are either of the appoin-

Effectiveness of Governmental Operations

117

tive/elective (Missouri-California model) variety. The practice of election, however—still so widely present in most of the fifty s t a t e s — be it partisan or what is often euphemistically called "nonpartisan," should be shunned resolutely. Neither pragmatically nor philosophically is election compatible with judicial service. With regard to the appointive mode, proposals abound for alterations in present practices, above and beyond the adoption of Missouri-California plans. Although, as suggested, there appears to be no pressing need for changes in the typical appointive practice, assuming the presence of the appointees' qualifications, a good many thoughtful observers, troubled by the continuing practices of senatorial courtesy, executive political cronyism, and the political role of the Department of Justice, have advanced the possibility of moving toward some type of judicial selection commissions. Variously conceived, a typical one of the federal level would be composed of individuals designated by the President upon recommendation of the Chief Justice, drawn from both the organized bar and citizens' groups—confirmed by the Senate or not, depending on the plan's authorship. In either instance, however, the commissioner would recommend circa five candidates for each vacancy, with the President required to select one within thirty days (or advance a viable reason to the Senate why none of the five is acceptable to him and thus request a new group of names). Other plans for alteration of the existing method of selection would vest the appointive function in upper level sitting jurists. 2 1 A matter of infinitely more pressing concern, and of a far more vexatious and subtle nature, is the already severally alluded-to central question in the judicial process of the basic role of the judge or justice, namely, how to confine him or her to judging rather than legislating. A truly fascinating problem, it has defied line-drawing, and will assuredly continue to defy it—with apologies to Professor Wechsler's "neutral principles." Viewing this matter at the highest judicial level, does the Supreme Court, do its justices, merely judge each case on its intrinsic merit or do they also legislate? In textbook theory—and virtually in the eyes of the average observer—all the members of any judicial tribunal do is to judge the controversies over which they have jurisdiction and arrive at a decision in accordance with the legal aspects of the particular situation at issue. Yet the nine justices of the United States Supreme Court especially are often charged with legislating rather than judging in handing down their decisions. This charge usually admits, and indeed grants, that the Court must, of course, possess the power to interpret legislation, and if "absolutely justified" by the particular issue at hand, even strike down legislation that is unconstitutional beyond "rational question." The charge against the high tribunal insists, however, that a line must be drawn between the imposition of judicial judgment and the exercise of judicial will. The latter is described as legislating, presumably the function of the legislature, and hence reserved to it. But, no matter how desirable one may be in the eyes of a good many observers, is it possible to draw such a line?

118

Henry ].

Abraham

It is, of course, impossible. As with every line, questions arise at once as to how, where, when, and by whom it shall be drawn. But it is obvious that the judges do legislate. They do make law. O n e of the most consistent advocates of judicial self-restraint, Justice Holmes, recognized without hesitation that judges do and must legislate. But, he added significantly that they "can do so only interstitially; they are confined from molar to molecular motions." 2 8 Judges are human, as indeed all of us are human—but also they are judges, which most of us are not. Being human, they have human reactions. "Judges are men, not disembodied spirits; as men they respond to human situations," in Justice Frankfurter's words. Justice McReynolds insisted that a judge neither can, nor should, be " a n amorphous dummy, unspotted by human emotions." (He certainly sported many such spots!) And Justice Cardozo spoke of the cardiac promptings of the moment, musing in his lively prose that "the great tides and currents which engulf the rest of men do not turn aside in their course and pass the judges b y . " 2 9 But, being human, as indicated, does not stand alone in the judicial decision-making process. A jurist is also presumably a qualified and conscientious member of the tribunal; he or she is in no sense of the term a free agent—free to render a decision willy-nilly. There is a deplorable tendency on the part of many observers to over-simplify the judicial decision-making process. Judges are "rigidly bound within walls that are unseen" by the average layman. These walls are built of the heritage of the law; the spirit of the Anglo-Saxon law; the impact of the cases as these have come down through the years; the regard for stare decisis (although there are, conveniently, often several precedents from which to choose), for a genuine sense of historical continuity with the past, as Holmes put it, "is not a duty, it is only a necessity"; 3 0 the crucial practice of judicial self-restraint 3 1 —in brief, the taught tradition of the law. Moreover, to reiterate an earlier point, the judges are very well aware of at least two other cardinal facts of judicial life: that they have no power to enforce their decisions, depending, as they do, upon the executive for such enforcement; and that they may be reversed by the legislature, albeit with varying degrees of effectiveness and if not without some toil and trouble—as the Crime Bill of 1968, for one, with its three-pronged attack on the Court, demonstrates. But not only do we often expect too much from the Court, we consciously or subconsciously encourage it to endeavor to settle matters that ought to be, yet for a variety of reasons are not, tackled by the other branches—witness such contentious issues as desegregation, reapportionment, redistricting, criminal justice, and separation of church and state. How to draw the lines? Anthony Lewis has observed perceptively— but hardly definitively—that "judicial intervention on fundamental issues is most clearly justified when there is no other remedy for a situation that threatens the national fabric—when the path of political change is blocked." 3 2 This was the case with the areas of endemic

Effectiveness of Governmental Operations

119

racial desegregation and persistent legislative mal-, mis-, and nonapportionment. But it was not the case with such contentious criminal justice decisions as Miranda v. Arizona.33 There, by reading a particular code of police procedure into the general language of the Constitution, the Court may well have overreached itself (although the police were hardly hobbled by the decision). Nor was it the case with the Court's recent involvement with a host of nonjudicial and perhaps nonjudicious aspects of the vexatious realm of abortion 34 (though I happen to agree with the results it reached), where, in effect, it created a federal abortion code. Nor, to point to another realm, is it true of the Court's increasing involvement—some have styled it meddling—with discipline in the public schools. 35 Even its extended forays into the realm of morals are of dubious wisdom, given profound and widespread popular opposition. Our courts should not be viewed as wastebaskets of social problems, which does not mean, of course, that law does not play an efficacious role in social reform. It does, however, point to the inescapable fact that the other branches must do their jobs. Of course, the Supreme Court of the United States is engaged in the political process. But, in Justice Frankfurter's admonitory prose, it is "the Nation's ultimate judicial tribunal, not a super-legal-aid bureau." 3 6 Neither is the Court, in the second Justice Harlan's words, "a panacea for every blot upon the public welfare, nor should this Court ordained as a judicial body, be thought of as a general haven for reform movements." 37 It may, thus, be questioned on grounds of both wisdom and justifiability—and ultimately governability— whether the Court should be involved, as it has become increasingly, in such realms as economic, as distinct from political and legal, equality, and private as distinct from public morality. Moreover, the type of judicial activism evinced by the highest tribunal in the land is hardly confined to it. Indeed, whether it be because of cue-taking from above, or because of indigenous oat-feeling, the lower federal courts, particularly the United States district courts, have ventured forth in policy-making of the most obvious kind, policy-making that should be left to the legislative function by the people's representatives. Thus, to question just two or three recent federal trial court actions that veritably smack of legislation—no matter how noble their intent and how desirous their consummation at the bar of public policy—is it really a judicial function to decreeprescribe: the F degree of temperature of thermostatically controlled hot water for state mental patients or residential use (110 F at the fixture) and for mechanical dish-washing and laundry use (180 F at the equipment) ; 38 or that dieticians and recreational officers in state penal institutions possess college degrees; 39 or

120

Henry 7- Abraham

that the percentage of women who receive job offers from a certain law firm in the next three years must be at least 2 0 per cent higher than the percentage of women in the graduating classes of the law schools from which the firm recruits new lawyers? 4 0 Decisions such as the above, and a host o f others, give pause for thought and raise fundamental role-questions, not only in the mind of professionals 4 1 and students of government, but also in those of the general public. 4 2 Caveat Judiciary! Withal, that public has continued to turn its face toward the judicial branch for the resolution of issues that had better be settled elsewhere. It has done so because courts in general, and the Supreme Court in particular, seem to provide responses to issues where the other branches, especially the legislature, fear to tread. W h e n all is said and done, the Court, at the head of the United States judiciary, is viewed—and quite properly s o — a s not only the most fascinating, the most influential, and the most powerful judicial body in the world, it is also the "living voice of [the] Constitution," as Lord Bryce once phrased it. As such, it is both arbiter and educator, and, in essence, represents the sole solution short of anarchy under the American system of government as we know it—witness its seminal role in United States v. Nixon.** It must act, in the words of one commentator, " a s the instrument of national moral values that have not been able to find other governmental e x p r e s s i o n " 4 4 — a s s u m ing, of course, that it functions within its authorized sphere of constitutional adjudication. In that role, it operates as the "collective conscience of a sovereign people." 4 5 And no other institution " i s more deeply decisive in its effect upon our understanding of ourselves and our government." 4 6 In other words, through its actions the Court defines values and proclaims principles. Beyond that, moreover, the Supreme Court of the United States is the chief protector of the Constitution, of its great system of checks and balances, and of the people's liberties; it is the greatest institutional safeguard Americans possess. T h e Court may have retreated, even yielded to pressures now and then, but without its vigilance America's liberties would scarcely have survived. W i t h i n the limits of procedure and deference to the presumption of the constitutionality of legislation, 4 7 the C o u r t — o u r " s o b e r second t h o u g h t " 4 8 — i s the natural forum in American society for the individual and for the small group. It must, thus, be prepared to say " n o " to the government—a role which Madison, the father of the Bill of Rights, fervently hoped it would always exercise. T h e r e are many citizens—indeed most, once they have given the problem the careful thought it m e r i t s — w h o will feel more secure in the knowledge of that guardianship, one generally characterized by common sense, than if it were exercised primarily by the far more easily pressured, more impulsive, and more emotioncharged legislative or executive branches. All too readily do these two yield to the politically expedient and the popular, for they are close, indeed, to what Judge Learned Hand once called " t h e pressure

Effectiveness of Governmental Operations

121

of public hysteria, public panic, and public greed." The Court, which thus often has had to act as a "moral goad" to the latter two, is neither engaged in, nor interested in, a popularity contest—its function is emphatically not one of counting constituents! Should that time ever arrive, the supreme judicial tribunal, as we now know it, will have lost its meaning. Even if a transfer of that guardianship to other institutions of government were theoretically desirable, which few thoughtful citizens believe, it would be politically impossible. " D o we desire Constitutional questions," asked Charles Evans Hughes, then not on the bench, in his fine book on the Court, "to be determined by political assemblies and partisan divisions?" 49 The response must be a ringing " N o ! " In the 1955 Godkin Lectures which he was to deliver at Harvard University when death intervened, Justice Robert H. Jackson had expressed his conviction eloquently and ably: The people have seemed to feel that the Supreme Court, whatever its defects, is still the most detached, dispassionate, and trustworthy custodian that our system affords for the translation of abstract into constitutional commands. 50 And we may well agree with Thomas Reed Powell that the logic of constitutional law is the common sense of the Supreme Court of the United States—which continues valiantly and admirably to strive to maintain that blend of continuity and change which is so vital to the stability of our basic democratic governmental processes. FEDERAL SYSTEM Our federal system is the structure that underlies a generous number of both the disappointments and the accomplishments of the American government "of, by, and for the people," as we know it. Federalism is either a failure or a success, depending upon the point of view of the protagonist, both extremes being represented at the Academy's Bicentennial Conference on the United States Constitution in the persons of two leading experts on the subject: Rexford Guy Tugwell and Daniel J. Elazar, respectively. The latter, while duly acknowledging the obvious need for constant reexamination and amelioration, is basically committed to its overall viability; 51 the former, more than twice as old in years and the holder of sundry responsible high government posts in the past, has long been convinced that only radical surgery, perhaps even extinction, will do. 52 A host of views hues to intermediate shadings. Neither the controversy nor the difference in perception is astonishing. For, as a team of contemporary commentators puts it well, the genius of the Constitution is also its vulnerability. A document that gives powers to different political institutions is sooner or later going to be caught in a squeeze when the interests of those are in sharp conflict. 53

122

Henry J. Abraham

T h e answer to the questions—at which level, national or state, (1) was power supposed to lie?; (2) w h e r e does it lie?; and (3) where should it lie?—are basic to both the argument(s) and to any proposed solution(s). But there is no argument, whatever, on the patently obvious fact of federal life that, n o t w i t h s t a n d i n g lip-service to the contrary, and notwithstanding such questionably honest decentralizing concepts or measures as revenue sharing, the long apparent trend toward centralization of federal power at the seat and in the h a n d s of the national government is, at once, an axiom of modern American federalism and irreversible—absent drastic and dramatic constitutional changes, which simply will not take place. N e w York City's 1975 financial Waterloo, its o w n and its parent state of N e w York's desperate turn to Washington for the sole practical source of tangible succor, and the New Year's D a y 1976 urgent appeal by f o u r leading governors to have the national government take over the entire welfare aid program because "it is out of control . . . a p a t c h w o r k . . . and not working" 5 4 are merely the latest and most visible indices of that conclusion's proof positive. This does not, of course, mean that one needs to embrace the off-with-his-head solution of Professor Tugwell; but it does mean listening to his reasoned critique. 5 5 It may well be that there is really no effective reversal of the trend toward centralization of p o w e r — a s s u m i n g we could agree that reversal were in the system's best interest—and that we ought to adapt the s u b t e r f u g e so charmingly suggested severally by ex-Senator George Aiken (R.-Vt.) during the agonizing years of the Vietnam W a r , w h e n he repeatedly, and quite seriously, importuned Presidents to proclaim victory and withdraw all forces f o r t h w i t h ! As I have had occasion to suggest elsewhere, 5 6 federalism is a point on a continuum reaching f r o m complete isolation to complete absorption, neither of which is really ever f o u n d in the actual life of actual states. As Aristotle might have said, there is no such thing as federalism; there are only federal states—states reflecting the federal principle. Hence, the federal idea, defined by the then Governor Nelson A. Rockefeller in H a r v a r d ' s Godkin Lectures as a concept of government by which a sovereign people, for their greater protection and progress, yield a portion of their sovereignty to a political system that has more than one center of sovereign power, energy and creativity, 5 7 features dramatic differences. These differences point to a salient underlying aspect of federalism: its pragmatism. T h u s it was for entirely pragmatic reasons that the Constitutional Convention on Fifth and Chestnut Streets in Philadelphia almost 190 years ago determined upon a federal structure, then as now appropriately k n o w n as a dual form of government, calculated to reconcile unity with diversity: the pressing common interests and purposes shared by the uniting colonies, which were

Effectiveness of Governmental O p e r a t i o n s

123

desirous of securing themselves against any European imperialism, and the desire of each of the uniting communities to maintain their identity and a large measure of independence—a desire that, in part, springs from the same mysterious sources as national pride and national exclusiveness. In those days, the framers' main concern was whether the fledgling nation, about to be created, would and could endure. Today, as has been true for some time, the question must be stood on its head: will the states, that is, the component parts of the nation, endure? Three major developments have occurred that have prompted that role-reversal. In chronological order, they are: (1) the predisposition of the Supreme Court of the United States, and notably its Chief Justice for thirty-four and a half years ( 1 8 0 1 - 3 4 ) , John Marshall, to resolve all doubts in favor of the nation via a broad and decisive interpretation of Article VI, the "Supremacy Clause"; (2) the military triumph of nationalism under Abraham Lincoln in the Civil W a r ; and (3) the still accelerating growth of economic and social welfare service demands by the electorate that have inexorably commanded national action for their solution. The naked facts today, as they have been for several decades, are that it is the federal government that has to deliver the goods. No matter how well-intentioned the component parts may be, they are more often than not incapable of the kind of service performance for which a seemingly steadily increasing popular demand clamors—even while concurrently mouthing platitudes about "returning power to the local levels of government." On the other hand, since the excessive rigidity of centralization is a serious weakness, regional, state, and local governments, with control over matters of unique concern to their own areas, should retain a substantial sphere of independence. And they do—which proves that federalism is not obsolete, although particular aspects may badly need revision. Moreover, as the Canadian as well as the American federal system have proved amply, it is doubtful, indeed, that democratic government could survive except through the device, or at least the trappings, of federalism. Democracy, which essentially is government by consent, needs mechanisms through which to construct electoral majorities that can agree on what the government should do. T h e states and localities, by providing such mechanisms under our federal systems, are often able to settle political squabbles in their decentralized realms without forcing them into the national forum where they might cause the sharpest of conflicts. Federalism, at its best, hence enables many regional interests and idiosyncrasies to have their own way in their own areas without ever facing the necessity of reconciliation with other regional interests. Individuals can thus identify themselves with particular regional interests and find in them a satisfying expression of many facets of their personalities. W h e n thus viewed, federalism approaches the textbook ideal: a device for combining unity and diversity in accordance with the requirements of liberal democratic ideals. T h e problem with the aforegone analysis of federalism is that, 124

Henry J.

Abraham

while undoubtedly true in democratic theory, and devoutly to be wished as a manifestation of the liberal democratic ideal, it but scarcely has practical application to the pressing issues of the day. T h e overriding key contemporary issues are simply beyond local, state, and even regional solution. Witness such as the cascading plight of the great cities of the nation; the incessant augmentation of demands for economic and social security; affirmative egalitarianism; and yes, even the once sacred bastion of local control, education. It is visionary to exhort the states to be innovative: their financial plight—with but rare exceptions, such as Texas—renders innovation a luxury; day-to-day survival is the contemporary preoccupation, inexorably bringing with it longing, albeit not necessarily fond, glances toward W a s h i n g t o n . No wonder, then, that the Advisory Commission on Governmental Relations wondered officially as long ago as 1 9 6 8 - 6 9 whether contemporary crucial questions, such as those of the urban centers, were still solvable by the American federal system " o r if only a centralized and unitary governmental system will be equal to the t a s k . " 5 8 Or can our leadership somehow devise, and sell, reforms that will adapt the venerable federal structure to " t h e needs of a technological, urban society in an age of onrushing c h a n g e ? " 5 9 It is excrutiatingly difficult to still the haunting doubts. And yet, federalism is at least one answer to the vexatious problem of how to conduct effectively the affairs of a nation-state as large, diverse, and complex as ours; provided we do not become the slaves of political theory or terminology; provided that we are not afraid to experiment; provided that we are willing to share/distribute economic bounty (and b a n e ) ; and further provided that we allow an umpire—that is the federal judiciary, with the Supreme Court at its apex—to decide winners and losers in governmental-societal combat. M a n y a crime has been, and undoubtedly is being, committed on the altar of federalism, commonly referred to as " s t a t e s ' rights," particularly when the issue at hand deals with the realm of civil rights and liberties. Yet, considerable advantages have also accrued, and will continue to accrue, from the federal system, not the least of which is that it allows more voices to be heard, more governmental experiments to be rendered—in short, more direct and more personalized political participation at a grass-roots level. Given the inexorable centripetal force of governmental power during the past four decades, however—led by the power of the p u r s e — it may well be asked whether the United States is still properly classifiable as a federal state at all? T h a t the period indicated has witnessed a drastic modification in the role of the constituent states is beyond dispute. Y e t they are hardly in total eclipse, and assuredly not in terms of their identity. T h e i r individualized administrative, basic internal governmental structures continue to exist, antiquated as many of them are; they are usually faithfully, probably too faithfully, represented—at least in terms of state and local interests—by their generally parochial congressional delegations; their often provincial

Effectiveness of Governmental Operations

125

and obstructive veto power is omnipresent (and occasionally omnipotent) vis-a-vis general national programs; grants-in-aid continue to abound; revenue sharing programs, while probably visionary and at least partially self-deceptive in their long-range implications, have provided a proverbial shot-in-the-arm; multitudinous social service and welfare programs of a host of stripes are increasingly financed by the national government, underscoring contemporary facets and notions of cooperative federalism, and, on many a delicate matter involving civil rights and liberties, the states have been taken off the hook by one or more of the three branches of the central government in Washington. The national psyche could probably not accept a departure from the federal arrangement: the knowledge of its existence, far more than its fact, represents a veritable security blanket to the average citizen! Perhaps that knowledge, so dear to our heterogenous society, vitiates basically more crucial questions of its effectiveness in the governmental modus operandus—and, indeed, its future role.

126

Henry ]. Abraham

NOTES 1. Anthony Lewis, " A Day in Court," New Times, 16 October 1975, p. 39. 2. Ibid.

York

3. Ibid. 4. Jerome Frank, Courts on Trial: Myth and Reality in American Justice (New York: Atheneum Publishers, 1963). 5. Ibid., p. 85. 6. For a less than complimentary, extensive analysis of juries, see Henry J. Abraham, The Judicial Process, 3rd ed. (New York: Oxford University Press, 1975), pp. 110-33. 7. For example, Monroe H. Freedman (Dean of the Hofstra Law School), Lawyers' Ethics in an Adversary System (Indianapolis and New York: BobbsMerrill Co., Inc., 1975). 8. Frank, Courts on devastating analysis. 9. Ibid., p. 85. 10. "Justice," New sec. 4, p. 16E. 11. Ibid.

Trial,

York

chap. 6—a

Times,

brilliant,

26 October 1975,

12. Ibid. 13. Frank, Courts on Trial, p. 102. 14. For example, the sixteen-member "Commission on Revision of the Federal Court Appellate System" (known as the "Hruska Commission") and the Report of the Study Group on the Case Load of the Supreme Court (known as the "Freund Report"). See also the Chief Justice's "Annual Report on the State of the Judiciary" (A.B.A. Mid-Winter Meeting, 23 February 1975). 15. Erie v. Tompkins, 304 U.S. 64 (1938). 16. See the description in Abraham, The Process, p. 142, n. 10. 17. Ibid.

Judicial

18. See New York Times, 4 January 1976, p. 1. 19. See the special issue of Judicature, "Bail Out the Supreme Court?," vol. 59, no. 4 (November 1975). 20. Some colleagues have suggested that, conceivably, my position is influenced by the vista of having to revise four books were the proposed court to be established! 21. Harold W. Chase, Federal Judges: The Appointing Process (Minneapolis: University of Minnesota Press, 1972), for lower federal judges, and Henry J. Abraham, Justices and Presidents: A Political History of Appointments to the Supreme Court (New York: Oxford University Press, 1974) for Supreme Court judges. 22. They are taken largely from chaps. 2 and 3 of Abraham, Justices and Presidents. 23. W. Curtis Bok, Backbone of the Herring York: Alfred A. Knopf, Inc., 1941), p. 3. 24. See Abraham, Justices 15.

and Presidents,

(New pp. 1 3 -

Effectiveness of Governmental Operations

25. His one-time colleague on the Court, Sherman Minton, in a letter to " F F , " fully seconded the latter's view: " A copy of your letter should be sent to every member of Congress. Your statement explodes entirely the myth of prior judicial experience. I am a living example that judicial experience doesn't make one prescient." (Frankfurter's Papers, Library of Congress, S. M. to F. F., 18 April 1957. Minton had served eight years on lower courts.) 26. " T h e Supreme Court in the Mirror of Justices," University of Pennsylvania Law Review 105 (1957), p. 781. 27. Ex-Senator Ervin would thus like to see all federal judges selected by a panel of sitting senior jurists, followed by Senate confirmation. Professor Chase, Federal Judges, favors the selection of all lower federal judges by the U.S. Supreme Court alone. Professor Peter Graham Fish of Duke University, also disdaining any senatorial role, suggests the vesting of the appointive power of all judges in the Chief Justice of the United States alone, acting under the "Heads of Department" provision of Article II(2)(1) of the Constitution. 28. Southern Pacific Co. v. Jensen, 224 U.S. 205, 221 (1916). 29. Benjamin N. Cardozo, The Nature of the Judicial Process (New Haven: Yale University Press, 1921), p. 169. 30. As quoted by Alpheus T. Mason and William M. Beaney in American Constitutional Law, 5th ed. (Englewood Cliffs: Prentice-Hall, Inc., 1972), p. xxvi. 31. For a list of sixteen "maxims" of this selfrestraint, see Abraham, The Judicial Process, chap. 9. 32. New York Times, 15 November 1971, p. 41. 33. 384 U.S. 433 (1966). 34. Roe v. Wade, 410 U.S. 113 (1973) and Doe v. Bolton, 410 U.S. 179 (1973). 35. Goss v. Lopez, 419 U.S. 565 (1975) and Baker v. Owen, 44 LW 3235 (1975), 423 U.S. 907 (1975). 36. Uveges v. Pennsylvania, 335 U.S. 437 (1948), at 437. 37. Reynolds v. Sims, 377 U.S. 533, 624 (1964). 38. Wyatt v. Stickney, 344 F. Supp. 373, 382 (M.D. Ala. 1972). 39. New York Times, 14 January 1976, p. 1. 40. Ibid. 7 February 1976, p. 1. 41. See Louis Lusky's searching new book. By What Right?, A Comment on the Supreme Court's Power to Reverse the Constitution (Charlottesville: Michie Co., 1975). 42. See the special issue of U.S. News Report, 19 January 1976, pp. 29-34.

and

World

43. 418 U.S. 683 (1974). 44. Anthony Lewis, New 17 June 1962, p. 38.

York

Times

Magazine,

45. U.S. Court of Appeals Judge J. Skelly Wright, " T h e Role of the Courts: Conscience of a Sovereign People," The Reporter 29 (26 September 1963), 5.

127

46. Alexander Meiklejohn, Free Speech and Its Relation to Seif-Government (New York: Harper & Co., 1948), p. 32. 47. Justice Holmes once stated this (his own) constitutional philosophy to the then sixty-one-year-old Stone: "Young man, about seventy-five years ago 1 learned that I was not God. And so, when the people . . . want to do something I can't find anything in the Constitution expressly forbidding them to do, I say, whether 1 like it or not, 'Goddammit, let 'em do it' " (As quoted in Charles P. Curtis, Jr., Lions under the Throne (Boston: Houghton Mifflin Co., 1947), p. 281). 48. Charles L. Black, Jr., The People and The Court (New York: Macmillan Co., 1969), p. 12. 49. The Supreme Court of the United States (New York: Columbia University Press, 1928), p. 236. 50. Robert H. Jackson, The Supreme Court in the American System of Government (Cambridge: Harvard University Press, 1955), p. 23. 51. Daniel J. Elazar, American Federalism: A View from the States, 2d ed. (New York: Thomas Y. Crowell Co., Inc., 1972). 52. Rexford G. Tugweli, The Emerging Constitution (New York: Harper's Magazine Press, 1974).

128

53. Kenneth Prewitt and Sidney Verba, An Introduction to American Government (New York: Harper & Row, Publishers, 1974), p. 303. See their excellent chap. 10, "White House, State House, and City Hall: Federalism in America," pp. 312ff. 54. See New York Times, 4 January 1976, p. 1. 55. See chap. 3, ' T a r t s and the Whole," pp. 89ff, of Tugweli, The Emerging Constitution. 56. J. A. Corry and Henry J. Abraham, Elements of Democractic Government, 4th ed. (New York: Oxford University Press, 1964), chap. 6, "Federalism" passim (from which much of this section is adapted). 57. ' T h e Future of Federalism," February 1962. 58. Urban America and the Federal System: Commission Findings and Proposals (Washington: U.S. Government Printing Office, 1969), p. 1. 59. Milton C. Cummings, Jr., and David Wise, Democracy Under Pressure: An Introduction to the American Political System, 2d ed. (New York: Harcourt Brace Jovanovich, Inc., 1974), p. 89; chap. 3, " T h e Federal System," pp. 65ff., is a pithy, succinct evaluation and exposition of essentials.

REPORT on the DELIBERATIONS of COMMITTEE II by James O. Freedman and Frank Goodman THE CONCEPT OF GOVERNMENTAL "EFFECTIVENESS" In its opening session, the committee attempted to clarify the concept of governmental "effectiveness" and to agree upon yardsticks for its measurement. At the outset of discussion, two criteria were put forward as appropriate measures of the effectiveness of government in general or of any particular institution of government: 1) the degree of public approval it enjoys; and 2) the extent to which it has been able to provide solutions to important societal problems. Judged by either of these standards, it was agreed, all three branches of our national government would be found seriously wanting. Congress and (in lesser degree) the presidency receive consistently low approval ratings in public opinions surveys; and even the judiciary, the least disfavored branch, falls short of majority approval. Similarly, the existence of unremedied social problems—urban blight, the energy crisis, crime in the streets, and others—would be strong evidence of governmental default if government could fairly be held accountable for all in society that is wrong. M o s t members of the committee, however, were dissatisfied with both criteria. Public disapproval of government, it was noted, may simply reflect an unrealistic level of expectation and demand, a tendency to look to Washington for solutions to problems that are beyond the capacity of government to solve. M a n y writers, moreover, have observed the tendency of the public, both in the United States and elsewhere, to demand more and better government services and programs while at the same time strongly resisting the taxes necessary to pay for them. T h o s e who fail to appreciate that there are no free lunches cannot help but be dissatisfied with whatever lunch is served, whatever bill presented, or both. Furthermore, the increasing unpopularity of the presidency owes much to circumstances that have little to do with how effectively any particular President does his job. In the words of Aaron W i l d a v s k y :

Since the proportion of people identifying with the major parties has shown a precipitous decline, future Presidents are bound to start out with a smaller base comprised of less committed supporters. T h i s tendency will be reinforced by a relative decline of the groups—the less educated and the religious f u n d a m e n t a l i s t — who have been most disposed to give unwavering support regardless of what a President does or fails to do. Education may not m a k e people wise, but it does m a k e them critical. 1 T h u s , Wildavsky concludes, "future Presidents will have to work harder than have p a s t Presidents to keep the same popularity status," and, in the end, the office is bound to become less popular even as it becomes more active and powerful. 2 In the case of Congress, too, popularity data must be viewed with some caution. W h i l e opinion surveys indicate that most people strongly disapprove of the performance of Congress as a whole, they tend to be satisfied with the performance o f their own representatives. T o some of the discussants, however, this seeming contradiction did not weaken the significance of the public disesteem for Congress as a whole but merely helped to explain why members who collectively disappoint their constituents nevertheless repeatedly get reelected. T h e discussants were equally skeptical of the notion that the persistence of important social evils, such as poverty, urban blight, and crime, bespeaks the ineffectiveness of federal government. For one thing, not all of these conditions are properly the government's responsibility. Government, as one m e m b e r of the group put it, is no more to be blamed for crime in the streets than to be credited for the gross national product. Moreover, the failure of government to remedy an undesirable social condition may be entirely consistent with the value preferences of a majority of the electorate, its unwillingness to accept the costs of remediation. T o the extent that social amelioration requires massive transfer payments from rich to poor, suburb to city, region to region, inaction by government may simply indicate the greater political power of the transferor classes. Finally, even if government were thought to be answerable for major social ills, a balanced assessment would have to take account of its accomplishments as well as its shortcomings. W h i l e the federal government has not distinguished itself in certain fields—e.g., energy policy, welfare reform, health-care delivery—it can claim notable achievements in others—civil rights and pollution control, to mention only two. In the last analysis, the discussants agreed, a meaningful evaluation of the effectiveness of government must be built upon a careful balancing of the benefits and costs of each governmental program and agency in relation to the probable benefits and costs of feasible alternatives. In the course of discussion, there emerged for consideration a third possible criterion of " e f f e c t i v e n e s s " — t h e extent to which government succeeds in giving the public what the public w a n t s — t h a t is, adopts special programs and policies demanded or favored by a clear majority of the electorate. T h i s criterion, too, was generally rejected b y the

132

James O. Freedman

and Frank

Goodman

c o m m i t t e e . It was pointed out not only that g o v e r n m e n t has obligations to the minority as well as to the m a j o r i t y but also that, w h e n C o n g r e s s fails to enact legislative measures

(such as gun

control)

clearly favored b y the m a j o r i t y , the reason m a y be that the minority cares about the issue more intensely, a f a c t o r w h i c h , in democratic t h e o r y as well as in political practice, is entitled to no small weight. In the end, the c o m m i t t e e was u n a b l e to agree, at least w i t h o u t substantial reservations, upon any single criterion, or

combination

of criteria, as the operative test of g o v e r n m e n t a l effectiveness. In the ensuing discussions, that concept remained largely undefined. ASSESSMENT OF THE THREE BRANCHES OF

GOVERNMENT

CONGRESS From its threshold exercise in definition and clarification, the c o m mittee moved to an evaluation, one by one, of the three b r a n c h e s o f the federal g o v e r n m e n t . T h e discussion of the legislative b r a n c h took f o r its point o f departure the familiar criticism o f C o n g r e s s as a don o t h i n g body incapable of effective national planning and policymaking. Nearly all the m e m b e r s o f the c o m m i t t e e agreed that this criticism largely misapprehends the nature and proper function o f the Congress. A b o v e all, it was stressed. C o n g r e s s is a political institution, a representative b o d y ; as such it c a n n o t fairly be judged b y the criteria o f rationality, foresight, and p u r p o s e f u l n e s s that are rightly applied to the administrative and b u r e a u c r a t i c sectors o f government. It is the arena in which conflicts o f interest, p h i l o s o p h y , and values within the b o d y politic are thrashed out and c o m p r o m i s e d , the forum in which political issues are crystallized, clarified, and resolved. C o n g r e s s e n a c t s , and properly should e n a c t , only t h o s e legislative measures w h i c h are supported b y a b r o a d popular c o n s e n s u s and is moved to action only after sufficient pressures have built up to o v e r c o m e the i n h e r e n t inertia o f the legislative process. T h o s e w h o seek favorable action from C o n g r e s s must t h e r e f o r e do m o r e than m a k e an a r g u m e n t ; they must build a constituency. D e v e l o p i n g a m e a s u r e of c o n s e n s u s sufficient to m o v e C o n g r e s s is no easy matter. T h e difficulty is compounded b y the a b s e n c e in this country o f a disciplined party s y s t e m on the British or continental model. H e r e it is not enough for a group seeking legislation to bring persuasion or pressure to bear on a few party leaders; t h e y m u s t disperse their efforts a m o n g nearly 5 0 0 individual c o n g r e s s m e n , m a n y o f w h o m are m o r e sensitive to currents o f opinion in their o w n local district than to the prevailing views of the national parties. Indeed, some m e m b e r s o f the c o m m i t t e e expressed the view that the power of the central leadership in b o t h houses to influence the b e h a v i o r o f the rank and file has greatly declined in recent years, and that we are unlikely ever to see again a S p e a k e r C a n n o n , or even a S p e a k e r R a y b u r n . T h e average c o n g r e s s m a n has little to lose b y b u c k i n g the leadership, other than the o p p o r t u n i t y for f a v o r a b l e c o m m i t t e e assignments, and even that threat is far less intimidating than it used

Deliberations o f C o m m i t t e e II

133

to be. T o a considerable extent, Speaker Rayburn's legendary leverage stemmed from his close relationship to the President, and from the latter's power to withhold federal projects from the districts of uncooperative congressmen. Nowadays, however, the mainstream of funds from the federal government to congressional districts flows from ongoing programs rather than isolated projects, and the President is not in a position to turn the faucet on or off. O n e member of the committee was unconvinced that the era of strong leadership in Congress has passed and cited Senator Lyndon Johnson as recent evidence. Others, however, questioned how much even Senator Johnson, as Democratic majority leader, had really influenced the course of legislation, suggesting that the Civil Rights Act of 1 9 5 7 , 3 often credited to President Johnson, would almost certainly have been enacted within five years anyway, and that even the strongest congressional leadership can do little more than advance the time-table of legislation to a small degree. Congressional inertia is reinforced by other considerations: T h e average congressman sees it as more important politically to avoid making enemies than to make new friends, and the risk of making enemies is greater when he supports controversial legislation than when he finds reasons for withholding that support. A vote in favor of the disputed proposal is more likely to be punished at the polls than a vote against that same proposal, assuming supporters and opponents to be equally numerous and caring. T h e phenomenon was perceptively described by Judge Henry Friendly in a passage quoting and paraphrasing a noted French authority: W h e n the legislator is asked to legislate, he knows the benefits he will be conferring on some will be matched by burdens on others; he will have his eye fixed on the relative number of his constituents on one side or the other. Moreover, he realizes that the benefit accorded to some will bring less in gratitude than the loss suffered by others will in resentment; the optimum is thus to do nothing, since failure will be understood by those desiring the legislation whereas success will not be forgiven by those opposing it. If legislation there must be, the very necessity of a text arouses further opposition, hence the tendency to soften it in the sense of compromise or even of unintelligibility. 4 Because of this strong inertial bias, it is usually far easier, even for powerful interest groups, to block adverse congressional action than to generate favorable action. T h e oil industry, for example, has been notably more successful over the years in preserving its special tax advantages than in persuading Congress to deregulate natural gas or relax burdensome statutory restrictions against air pollution. Several committee members noted that racial minority groups seeking protection against discrimination and segregation have found it particularly difficult to move Congress. T h e other branches of the

134

James O. Freedman

and Frank

Goodman

government have been far more responsive. It is no accident that the process of racial desegregation began in the 1 9 4 0 s with presidential action (President Truman's 1 9 4 8 order banning discrimination in the armed forces 5 ), gained momentum in the 1950s with judicial action (most notably, the Supreme Court's 1954 school desegregation decision 6 ) and, only after another decade had passed, culminated in congressional action (the enactment of the Civil Rights Acts of 1 9 6 4 7 and 1 9 6 8 s and the Voting Rights Act of 1975 9 ). O n the other hand, the point about congressional inertia must not be overstated. Conservative critics often lament the ease, even alacrity, with which Congress grants the demands of special interest groups for subsidies of various kinds at the expense of the general taxpayer. Congressional immobility, they argue, is much more in evidence when legislation is opposed by a cohesive and articulate minority than when it is opposed—if that is not too strong a word—by a quiet and unorganized taxpayer majority, which may not object so much to the particular proposal as to the cumulative effect of many such proposals. Prospects for Reform Surprisingly, this perception of Congress as a vessel floating more or less passively on shifting political currents was not seriously challenged. Nor was there any real attempt to evaluate the effectiveness of Congress in terms of this model. There was, however, some discussion, and a measure of disagreement, as to the possible utility of procedural and structural reform. Some committee members felt that no amount of tinkering with the machinery of Congress would significantly affect its work product. According to this view, the presence or absence of the seniority system, the number of committees, the degree of power exercised by committee chairmen, the existence or nonexistence of a rules committee or a seniority system make little difference; Congress will behave in much the same way regardless. Not all members of the group, however, shared this view. It was noted, for example, that the effectiveness of the individual congressman is unnecessarily impaired by lack of information about fiscal matters, about the internal workings of the executive branch agencies subject to congressional oversight and, less importantly, about conditions in society at large. A suggested remedy was the establishment by Congress of a special legislative branch agency responsible for gathering, digesting, and transmitting in usable form such information as Congress may need for purposes of legislation and effective oversight. Other committee members, however, were doubtful that this service would do much good and noted that agencies charged with informing members of Congress already exist. Apart from such procedural and organizational matters, the committee also considered structural reforms of a more fundamental nature. The discussion revolved around two areas of possible reform:

Deliberations of Committee II

135

first, enlargement of congressional districts and corresponding reduction in the membership of the House of Representatives; second, lengthening of the congressional term of office. In support of the first, the main argument was that larger districts would strengthen party responsibility in Congress. Candidates would be forced to campaign on issues of national or at least regional scope rather than on purely local and parochial questions. T h e y would find it more difficult to disassociate themselves from the program and performance of their party at the national level, both in Congress and in the W h i t e House and at the same time would become more dependent upon national-party funds to finance their costlier campaigns. Larger constituencies, it was said, would enhance the prestige of the congressional office, draw more and abler candidates and by the same token, increase voter interest and participation at the polls. Congressional candidates, responsible to a larger and more diverse constituency, would be forced to seek the support of coalitions more closely approximating those to which presidential candidates must appeal. Most of the discussants, however, appeared unimpressed by these arguments. Larger districts, they replied, would make for less effective representation. Congressmen would be less aware of and responsive to the needs and wishes of their constituents, less able to play the ombudsman's role. Members of minority groups would have greater difficulty winning congressional seats. Reduction in the size of the House would result in increased committee burdens for each member and thus impair the quality of the congressional work product. These significant costs would not be offset by any corresponding benefits in the form of party discipline. And the example of the Senate shows that these significant costs would not purchase any real increase in party discipline: party discipline in the Senate, with its statewide constituency, is not stronger, and may be weaker, than in the House. T h e second proposal—to lengthen the term of office for members of the House of Representatives—met with a more favorable reception. Discussants pointed out that the existing two-year term forces congressmen to invest an inordinate part of their time and energies, and those of their staff, in campaigning for reelection. Moreover, facing reelection every two years, congressmen are hesitant to cast controversial votes: the moratorium on serious legislation that observers have noted in every American presidential election year descends upon the House of Representatives every second, rather than every fourth, year. A longer term of office, it was argued, would enable members to devote a large amount of their time to the business of deliberation and legislation rather than to the business of getting elected. It would increase the attractiveness of the office and make elections more competitive and interesting. And with fewer elections, their total cost would be reduced. O n e committee member ventured the proposal, often suggested by critics of the present two-year term, that members of both houses be elected concurrently with the President every four years. 1 0 Under

136

James O. Freedman

and Frank

Goodman

that procedure, members of Congress who belong to the President's party would be forced to defend his record and to correlate their own positions with those of the national party; the President, moreover, would stand a better chance of carrying into office a Congress that shares his goals and policies. Other discussants were unpersuaded by these arguments. They argued that an election is the principal mechanism in our democracy for enlisting public participation in the governmental process, for airing and debating issues and crystallizing public opinion into a consensus. Less frequent elections would lead to greater public apathy about politics. In the lengthened intervals between elections, changing public opinion could less easily make itself felt at the legislative level. Nor would synchronization of presidential and congressional elections actually contribute very much to the strengthening of the party system in Congress or to coordination between the presidential and congressional parties. It is notable that President Eisenhower failed to carry Congress in 1956, and that President Kennedy would have been better off with the House elected in the mid-term of 1958 than with the House elected with him in I 9 6 0 . " Lack of coordination between the presidential and congressional parties is due not so much to the existence of biennial elections as to factors—such as the committee system, the seniority system, and the rules of the House—which would not be affected by changing the length of congressional terms. Congressional Oversight of Regulatory Agencies The committee devoted relatively little attention to one of the central responsibilities of Congress—the oversight of the executive departments and independent regulatory agencies. Congress performs that function through a variety of mechanisms, maintaining fiscal oversight through the appropriations committees, investigative oversight chiefly through the government operations committees, and legislative oversight through legislative committees with specialized subjectmatter jurisdiction. In the view of most observers, these mechanisms have not enabled Congress to maintain effective supervision over the practices and policies of the regulatory agencies, so as to assure that regulation is rational and coherent, in accordance with congressional intent, and effective for its purposes. Neither the appropriations process nor ad hoc investigations provide an opportunity for comprehensive review of agency policies. And, for the most part, the laws creating agencies and defining their missions have been cast in such vague and general terms as to provide them scarcely any policy guidance. 12 Although these regulatory statutes are frequently amended, the amendments seldom revise or refine the original grants of power; more often, they merely confer additional power of an equally vague and unspecific character. There are strong indications that Congress has become acutely conscious of its shortcomings in the field of oversight and of the urgent need both to reform and reorganize the regulatory agencies and to strengthen its own supervisory r o l e . " In the last two sessions

Deliberations of Committee II

137

of Congress, a host of bills have been introduced with a view to accomplishing these purposes. These proposals contemplate a variety of approaches and techniques, many of them highly innovative. One such method, increasingly in vogue, is a device known as the "legislative veto," a statutory requirement that executive or administrative action, before becoming effective, be reviewed by Congress and approved—or in the more typical variation, not disapproved— within a specified period.14 The veto power is sometimes lodged in both houses, more often in one house, occasionally even in a congressional committee. Such provisions are to be found in 196 statutes enacted since 1932, more than half of them (89) since 1970, and nearly one-fourth (46) between 1973 and 1 9 7 5 . " They have been employed in such diverse areas as national defense, foreign affairs, interior affairs, public works, immigration, transportation, and executive reorganization. 16 In the 94th Congress, a bill that would have subjected the administrative regulations of all departments and agencies to veto by concurrent resolution of both houses, or by a concurrent resolution of disapproval adopted by one house and not acted upon by the other, was narrowly defeated in the House of Representatives. 17 The constitutionality of the legislative veto is a matter of sharp dispute. 18 There are those who say that both houses cannot validly delegate to a single house, let alone to a single committee, the power to approve or disapprove administrative regulations; that a congressional veto, whether exercised by one house or both, circumvents the constitutional requirement that every "Order, Resolution, or Vote" be presented to the President for his approval; and that a determination by Congress as to whether a proposed regulation is ultra vires invades the province of the judiciary under Article III. 19 The opposing view is that a law which conditions the effectiveness of an administrative regulation on the subsequent approval (or nondisapproval) of Congress is merely a limitation upon the original, admittedly valid, delegation of rulemaking authority to the agency in question. Constitutionality aside, the legislative veto is also open to objection on practical grounds. Congressional review of the thousands of regulations annually generated by the federal agencies would place a staggering burden on the limited resources of Congress and its staff; would expose each member to greatly intensified pressure from special interest lobbyists of all stripes; would subject the agencies themselves to new political pressures, putting powerful committee chairmen in a position to dictate the detailed content of regulations as the price of their approval; and would add a further element of delay to administrative processes already notoriously slow-grinding. At best, moreover, it is doubtful whether review of individual regulations on a current basis would supply the agencies with that basic policy guidance they have so long needed. Another much discussed oversight mechanism is the "sunset law,"

138

fames O. Freedman

and Frank

Goodman

w h i c h would establish fixed expiration dates f o r federal agencies a n d p r o g r a m s and require affirmative reauthorization b y Congress in o r d e r to p e r p e t u a t e them. T h e device has n o t been widely used to d a t e ; only 14 of t h e 235 agencies, boards, a n d commissions created b e t w e e n 1960 a n d 1973 were given a fixed lifespan. 2 0 Still, the " s u n s e t " idea is not n e w . Justice Douglas once suggested to President Roosevelt that the lifespan of all N e w Deal agencies be limited to ten years. 2 1 M o r e recently, Professor T h e o d o r e Lowi proposed a tenureo f - s t a t u t e s act that would set a time limit of five to ten years on the life of every organic act. 2 2 Supporters of this a p p r o a c h argue that the need f o r continuing renewal of their congressional m a n d a t e s will not only give Congress an o p p o r t u n i t y to reexamine t h e need f o r the agency and weed out obsolete and duplicative p r o g r a m s , b u t will also help to avoid the h a r d e n i n g of arteries that so o f t e n seems to afflict aging regulatory agencies that have outlived their m a n d a t e s . Lloyd Cutler has suggested that the greater vitality and effectiveness that seems characteristic of y o u n g e r agencies " m a y result less f r o m their y o u t h t h a n f r o m their role in pursuing goals that our political institutions have just recently proclaimed and continue to s u p p o r t . " 2 3 But a Senate bill introduced in the 94th Congress a n d reintroduced in the 95th, would comprehensively " s u n s e t " all g o v e r n m e n t activities and programs. 2 4 For each category of program, it would establish a termination date for existing b u d g e t a r y a u t h o r i t y and require, in connection with a n y f u t u r e reauthorization, t h a t the s t a n d i n g committees of both houses conduct, every four years, a zero-based evaluation of all p r o g r a m s within their respective jurisdictions. In this way, all related g o v e r n m e n t a l activities in each area of regulation would be reviewed quadrennially and obsolete and duplicative elements identified and weeded out. Yet a n o t h e r a p p r o a c h to regulatory reform is the congressionally m a n d a t e d presidential reform plan, which would require the President to submit to C o n g r e s s a comprehensive plan of r e f o r m for each of the m a j o r areas of regulation. 2 5 Each such plan would contain an evaluation of the existing regulatory f r a m e w o r k a n d r e c o m m e n d a tions—procedural, structural, and s u b s t a n t i v e — f o r its reform. T h e underlying premise of this proposal is that the President is in a better position to initiate regulatory reform than congressional committees which, over the years, have developed strong vested interests in the existing system. In one proposed variation, the President's r e f o r m plans would in each instance become law unless vetoed by either house w i t h i n a sixty-day period. 2 6 T h e o n e - h o u s e veto approach traditionally used in reorganizations of the executive b r a n c h would thus be extended to regulatory activities outside the executive b r a n c h a n d to m a t t e r s of s u b s t a n t i v e as well as structural r e f o r m . This variation recognizes t h e difficulty of mustering a national, and therefore a legislative, consensus f o r any particular r e f o r m — e v e n w h e n there is universal dissatisfaction with the existing state of a f f a i r s — a n d deals with the problem b y shifting the b u r d e n of overcoming congres-

Deliberations of C o m m i t t e e II

139

sional inertia from those w h o favor to those who oppose the executive-initiated reform, so that the inevitable legislative discordance will result in change rather than perpetuation of the status quo. O n e member of the committee noted these developments in passing but took a dim view of them. Congress, he cautioned, ought not involve itself too deeply in the detailed business of administration. It lacks the resources to do so and, in the attempt, may weaken its effectiveness as a representative body. Even without ambitious new ventures in oversight, congressional committees consume a large proportion of the total staff and informational resources of Congress; the individual congressman, who lacks these resources except in his capacity as a committee member, is hard put to make an independent judgment, on behalf of his constituents, on the great volume of legislation emanating from committees to which he does not belong. V e r y often, perhaps too often, he is forced to defer to the more informed judgment of the committee. This last observation significantly qualifies the earlier general picture of Congress as passively subservient to public opinion. T h a t picture ignores the central role of the congressional committee system. 2 7 T h e 2 0 0 standing committees and subcommittees of both houses, each with its own staff and special subject-matter jurisdiction, is a reservoir of specialized knowledge, competence, even expertise, in many cases rivaling that of the bureaucracy itself. In their committee work congressmen often display a craftsmanship and creativity in the art of legislation, an independence of judgment in matters of policy, that stamps them as far more than mere registrars of their constituents' opinions. Certain committees, moreover, and their powerful chairmen, serve as pressure points upon which minority and other interest groups can exert effective influence without having to buttonhole the entire membership of the Congress. T o be sure, assignment to some House committees (e.g., Interior and Insular, Post Office and Civil Service) is valued chiefly as a means of serving local constituency interests and thus strengthening the member's reelection prospects. Seats on other House committees, however, are viewed as opportunities to promote policy-oriented goals, (e.g., Education and Labor, International Relations) or to enhance the member's prestige and influence in the House (e.g., Appropriations, W a y s and Means). 2 8 In either case, the legislation that emerges from committee is often quite different, in detail and even in basic concept, from that which would be produced (if any would) by men and women interested only in following the orders of those who elected them.

THE PRESIDENCY T h e committee's discussion of the presidency focused almost exclusively upon what might be called " t h e lessons of W a t e r g a t e . " The pervading theme was that the presidency, and in particular the White House staff by which the President is increasingly surrounded and insulated, has grown too great, is insufficiently accountable either to Congress or to the public, and by one means or another should be

140

James O. Freedman

and Frank

Goodman

cut down to size. T h e W h i t e House staff, it was argued—persons appointed without senatorial confirmation and, by virtue of the executive privilege doctrine, largely immune to congressional o v e r s i g h t — cuts the President off from vital sources of information and experience and wields enormous power in his name but often without his knowledge. T w o specific correctives were put forward for discussion: that the appointment of principal members of the W h i t e House staff be made subject to senatorial confirmation and that the concepts of national security and executive privilege be clearly defined and narrowly circumscribed either by statute, judicial decision, or, if necessary, by constitutional revision. Neither proposal found much support among the discussants. Senatorial confirmation of chief W h i t e House aides was viewed as a futile gesture. Rarely if ever would, or should, the Senate reject the President's choice for a position of such close personal trust. T h e President is the best judge of who and how many should labor at his right hand. Furthermore, the power to confirm is not necessarily the power to control and, even if it were, the power to confirm those who nominally hold high ranking W h i t e House titles is not necessarily the power to confirm those to whom the President actually listens and assigns responsibilities. Congressional scrutiny of top W h i t e House appointments would not prevent the President from relying, in whatever way he wished, upon nominally inferior aides of his own sole choosing. T h e W h i t e House is essentially a political institution; its formal structure is unimportant, while its true operating structure cannot be imposed from the outside. " T h e structure of the W h i t e H o u s e , " observed one of the panelists, " i s , inevitably, the structure of a bowl of jello." T h e second proposal—that national security and executive privilege be clearly defined—likewise stirred no enthusiasm. Some discussants took the view that, in the long run, these concepts will mean as much or as little as the President can persuade the country to accept; and, in any case, even if executive privilege were defined more narrowly and governmental secrecy considerably relaxed, it is unlikely that Congress or the public would be any better informed. Pressed for information, the President might simply send to Congress a paper haystack without disclosing where the critical needles of information were to be found. O n e proposal relating to executive privilege did have some a p p e a l — that the privilege should be available only when invoked by the President himself, on a case-by-case basis, in writing and with accompanying reasons. T h e s e procedural requirements, it was hoped, might reduce the number of occasions on which executive privilege is claimed, and even more important, might be the most effective means of scaling down the W h i t e House staff: a President might be more reluctant to surround himself with a legion of assistants if he knew that each could be called before congressional committees without the shield of executive privilege. Some members of the committee questioned whether the W h i t e

Deliberations of Committee II

141

House staff was really a major long-term problem after all. Helpless though Congress may be to affect the matter, the President h i m s e l f — any President who has learned the lessons of Watergate—can be expected, on his own, to scale down his staff. Indeed, it was noted, President Ford had already done so. (It might be added that in February of 1977 President Carter announced that White House personnel would be reduced by as much as one-third 2 9 ). Furthermore, a transfer of functions from the W h i t e House to the cabinet departments might not be an unmixed blessing from the standpoint of increasing the political accountability of the federal bureaucracy. T h e transferred activities might become more amenable to congressional oversight but only by becoming less amenable to presidential direction and control. Indeed, the diminishing ability of the President to impose his policy preferences upon the vast bureaucracies of the executive branch, let alone the independent regulatory agencies, is one of the central problems of American government. In the words of one authority: T h e President is not strong but weak: He has lost control of the departments, of domestic policy, and, as we see in Watergate, even his own House. He has retreated into foreign policy, but even there he must share his authority with Congress . . . So much attention has been given, in recent years, to the growth of executive power that an essential point has been overlooked. It is true the executive branch has taken upon itself extraordinary powers—war, peace, control of the economy. This does not mean, however, that the man elected by the people to the presidency can actually wield these powers. He does not rule, he reigns—with the deplorable result that no one responsive to the people governs the country. 3 0 T h e political unaccountability of the federal bureaucracy is thus a problem which far transcends the White House staff or the executive office of the President. Indeed, the growth of the "presidency" largely represents an effort by successive Presidents from Roosevelt through Nixon to gain more effective control over, and thus increase the political responsibility of, the departments and agencies of the executive branch. Diminishing the "presidency," as a reaction to Watergate, will not solve the larger problem and could even exacerbate it. Still in the Watergate vein, the committee addressed itself also to the problem of impeachment. It was proposed that the Constitution should be amended to make easier the removal of the President who has abused his office or can no longer govern effectively. Several specifics were discussed. O n e was to institute at the federal level the recall device so widely adopted in the states. Another was that Congress, by a suitably large majority, should be permitted to cast a vote of no-confidence in the President and, thereby, secure his removal. Still another suggestion was to relax the present standard for impeachment—"high crimes and

142

James O. Freedman

and Frank

Goodman

misdemeanors"—so as to permit removal for "conduct unbecoming the presidency." None of these ideas got much support. The prevailing view seemed to be that both the recall and no-confidence devices would seriously destabilize the office and that loosening the constitutional standard for impeachment would introduce too large a measure of subjectivity and discretion. The one suggestion along those lines that met no opposition was that the Congress, by statute, should spell out the concept of high crimes and misdemeanors and set up an ongoing institutional mechanism for impeachment, perhaps in the form of a standing impeachment committee with jurisdiction to investigate charges against executive officers. On the whole, the committee's discussion of the presidency seems remarkably narrow in scope. In light of the committee's earlier consensus that Congress could not be looked to as an effective instrument of national planning, one might have expected a searching examination of the strengths and weaknesses of the executive branch as a policy-making body. Instead, the executive was regarded exclusively through Watergate lenses as a potential public enemy which ought to be weakened, rather than strengthened. The central question left unanswered, indeed unasked, was whether in our federal government, there is any institution which can effectively perform the vital planning function, a responsibility that becomes ever more important in a world of shrinking resources, environmental fragility, and inflated public expectations. THE JUDICIARY In discussing the effectiveness of the judiciary, the committee had before it an issues paper by Professor Henry J. Abraham, one of the nation's leading political scientists, who has written extensively on the work of the Supreme Court. Professor Abraham's paper reviewed a body of evidence suggesting that the American people regard the judiciary as the most effective of the nation's major governmental institutions, as well as the one most conscientious in protecting their civil liberties. Why have the American people reached this conclusion? Performance of the Supreme Court Several members of the committee suggested that the Supreme Court, by the character of its performance, has contributed to this high public estimate in at least two important respects. First, the Court has shown decisive capacity, particularly in the last generation, to resolve significant public issues of a kind that the American people believed should be resolved and that the political process had been unable to resolve. When the political process has been paralyzed on the resolution of such issues, the Supreme Court has been the institution that has rescued the nation from the stalemate. Two of the most important recent examples of such action by the Court are Brown v. Board of Education,31 which resolved the historic

Deliberations of Committee II

143

dilemma of segregation, and Reynolds v. Sims,32 which resolved the historic problem of malapportioned legislative representation—issues as to which the political process was peculiarly unable to achieve reform in ways that the American people quite clearly understood reform was needed. Second, the Supreme Court, over the course of generations, has more satisfactorily met public expectations as to its appropriate role in American life than the other major institutions of government. Its decision in United States v. Nixon, enforcing the Special Prosecutor's subpoena for certain presidential tapes, is perhaps a pertinent recent example. 33 By deciding that case at all, the Court met public expectations that it would serve as an umpire in a significant contest between two major centers of power within government. By deciding the case expeditiously—within three months of the issuance of the subpoena by the district judge—the Court met public expectations that it would not permit the constitutional confrontation facing the nation to be protracted. And by deciding the case on the merits in the manner that it did, the Court met public expectations as to the proper result; indeed, the American people almost certainly would have been surprised, if not chagrined, had the result been different. These considerations led many members of the committee to the view that recommendations for changes of a constitutional dimension in the role of the Supreme Court in American government should be considered only with the greatest deliberation. Selection of the Judiciary The committee gave considerable attention to the quality of the nation's judiciary and to the criteria by which judges should be selected. That judges should be selected by merit was readily agreed to. But what constitutes merit, and what qualities in addition to merit may properly be given weight? Few would disagree that professional competence—possession in a very high degree of the technical skills of the lawyer—was an appropriate, indeed essential, factor for a President to take into account in appointing a justice of the United States Supreme Court. One committee member suggested that a lawyer's stature within the profession would provide a President with a reliable index of a prospective nominee's professional competence. Although this will often be the case, the memory of seven former presidents of the American Bar Association asserting that Louis D. Brandeis was not qualified to sit on the United States Supreme Court is not reassuring. 34 To professional competence, some students of the Supreme Court would add prior judicial experience as a desirable, if not indispensable, qualification for effective service on the Court. Measures that would require that Supreme Court justices have judicial experience of a specified duration, either on a lower federal court or on a state court, have been introduced into Congress regularly during the last three decades. The argument that a justice of the Supreme Court should have

144

James O. Freedman and Frank Goodman

some prior judicial experience has a superficial plausibility. But that plausibility dissolves when one examines the history of the Court. Among those justices who had no judicial experience at the time of their appointment to the Supreme Court are some of the most distinguished in that institution's history, including Wilson, Marshall, Story, Taney, Miller, Bradley, Hughes, Brandeis, Stone, Jackson, Black, Frankfurter, and Warren. However, a number of the Court's most distinguished justices did have judicial experience before their appointments, including Brewer, Field, White, Holmes, and Cardozo. The fact that some justices of intellectual distinction had prior judicial experience while others did not suggests the wisdom of Justice Frankfurter's conclusion that "it would be capricious, to attribute acknowledged greatness in the Court's history either to the fact that a justice had had judicial experience or that he had been without it." 3 5 Indeed, Justice Frankfurter argued that, beyond the ad hominem refutation, prior judicial experience " h a s no significant relation to the kinds of litigation that come before the Supreme Court, to the types of issues they raise, to qualities that these actualities require for wise decision." 36 For this further reason, too, he concluded that "the correlation between prior judicial experience and fitness for the functions of the Supreme Court is zero." 3 7 Even if prior judicial experience is discounted as a qualification for a Supreme Court justice, personal qualities of mind and character beyond professional competence are surely desirable. One member of the committee recalled the prescription, attributed to Justice Brennan, that a Supreme Court justice ideally should be a lawyer, a historian, a philosopher, a prophet, and a person of inordinate patience. Learned Hand, perhaps our wisest judge, refined the prescription: I venture to believe that it is as important to a judge called upon to pass on a question of constitutional law, to have at least a bowing acquaintance with Acton and Maitland, with Thucydides, Gibbon and Carlyle, with Homer, Dante, Shakespeare and Milton, with Machiavelli, Montaigne and Rabelais, with Plato, Bacon, Hume and Kant, as with the books which have been specifically written on the subject. 38 In selecting justices of the Supreme Court, a President is often urged to give weight to considerations of geographical distribution and experiential diversity. For Justice Frankfurter, geographical considerations were an irrelevance that could lead a President to a narrower range of choice than that to which the nation was entitled. Had President Hoover heeded such considerations, he might not have named Benjamin N. Cardozo, a New Yorker, to a Court on which two justices from New York already sat. 39 " T h e pride of a region in having one of its own on the Court," Justice Frankfurter concluded, "does not outweigh the loss to the Court and the country in so narrowing the search for the most qualified." 4 0 Yet for some members of the committee geographical distribution

Deliberations of Committee II

145

among the members of the Supreme Court was an important factor in enhancing the acceptability, the persuasiveness, and the legitimacy of the decisions that the Court reached. Thus, the suggestior was made that the decision in Brown v. Board of Education may ha^e gained a greater measure of acceptance in the South because of tie fact that Justice Black, an Alabaman, sat upon the Court that pronoinced it. One member of the committee, in explaining his support for considering geographical diversity, invoked a psychological dmension as to how the values of Supreme Court justices are shaped curing their service. He argued that public officials who live in Washiigton, D.C. for long periods of time tend unconsciously to absorb (or le absorbed by) what he described as an eastern United States world *iew. When decisions of the Supreme Court in a number of significait areas are seen as reflecting a single set of coherent values identified with a particular region of the country, the acceptability of the Ourt's work among those who regard this view as merely provincial is eopardized. The proponent of this argument said that an eastern Lhited States world view could be seen as working itself out in the Court's decisions in areas in which societal standards were changing, tuch as civil liberties and the regulation of morals. He called particuhr attention to decisions involving school prayer, abortion, and the rights of criminal suspects and defendants.41 Whether these decisions ire properly attributable to an eastern United States world view, thee are surely exceptions to the hypothesis, as the Court's recent decisioi sustaining the constitutionality of state criminal regulation of adulf consensual homosexual conduct done in private suggests.42 The arguments supporting experiential diversity as a onsideration in the appointment of Supreme Court justices are easily understood. A Court is strengthened in its competence and self-assurmce when it includes among its members those whose professional erperiences— whether it be as corporate specialists, civil rights litigators, labor negotiators, administrative lawyers, law professors, or jolitical officials—supplement each other. The committee divided sharply, however, when it; discussion moved beyond considerations of professional competency prior judicial experience, geographical distribution, and personal Experience to considerations of race, religion, and national origin. Thosewho argued that a President might properly take such considerations into account in the selection of Supreme Court justices stressed the strengths by way of insight and experience that members of minority {roups in the population can bring to the Court's deliberations. The^ also maintained that the presence of members of minority groups m a court inspires confidence in its work-product. If the Court's decsions are accorded a greater measure of legitimacy and acceptability ii the country at large when they are reached by a group of justices vho are geographically diverse, these committee members asked, why would not the same consequence follow from decisions reached b- a group of justices which included representatives of significant mirorities in the population?

146

James O. Freedman and Frcnk

Goodman

But m a n y committee members argued that consideration of racial, religious, or ethnic factors in the appointment of Supreme Court justices was subversive of the basic American principle that individuals be considered solely on their merits as individuals. T h e y argued further that reliance on the premise that, as a matter of fairness or right, there should be a Jewish seat or a black seat or an Italian seat or a female seat on the Supreme Court could too readily result in acceptance o f such single seats as quotas or limitations upon the appointment of additional Jews, blacks, Italians, or women to the Court, to the possible detriment both of the group and of the institution.

Role of the President and Senate A rather different concern with respect to the appointment process was also expressed: that in recent years Presidents of the United States have chosen increasingly to play little more than a perfunctory role in the appointment of judges to the lower federal courts. T h e institution of "senatorial c o u r t e s y " has traditionally constrained a President's freedom in the nomination of federal judges. Under this custom, the Senate refuses to confirm a judicial nominee if a senator from his state declares him personally obnoxious to him, particularly when the senator making the objection is of the same political party as the President. O n e consequence of this custom has been to permit one member of the Senate to dictate that body's rejection of a President's nominee. Another consequence has been to require the President to share his appointment power with particular senators in particular c a s e s — a consequence that has often prompted private negotiations between the W h i t e House and the senator involved until agreement on a nominee could be reached. 4 3 Several members of the committee reported that Presidents of both political parties have followed a practice in recent years of essentially delegating the task of selecting judges for the lower federal courts to the senators from the state in which the appointment is to be made, so that there is no effective presidential act of judgment in the selection process at all. This means that the quality of individuals nominated to federal judgeships is often no better than the quality of the senators from the state in which the prospective judge will sit. T h i s practice is particularly alarming when seen in light of the fact that the Senate rarely devotes the kind of consideration and scrutiny to the qualifications of those nominated for positions on the lower federal courts that it does to prospective justices of the Supreme Court. T h u s , the formalities of presidential nomination and Senate confirmation do not operate—as the framers undoubtedly intended—as separate stages of independent judgment and of effective restraint upon the appointment of undistinguished individuals to the federal bench. If the quality of the federal judiciary is to be sustained or improved, Presidents must reassert a serious interest in the appointments made in their name, and the Senate must examine the qualifications of judicial nominees with greater care than it has in the recent past.

Deliberations of Committee II

147

Utility of the Adversary System A t the suggestion of Professor Abraham, the committee focused, although only briefly, upon whether the adversary system adequately serves the ends of justice. 4 4 In recent years a number of thoughtful commentators have questioned whether the adversary system is the method best suited to try issues of constitutional significance, to attain justice in mine-run lawsuits, or to provide legal redress to the poor in civil cases. 4 5 Professor Abraham's issues paper had suggested that the United States consider adoption of an inquisitorial system of justice, a system used in many European countries, in place of the adversary system we now use. Under an inquisitorial system, the investigation and assembling of the facts is done primarily by an impartial state official rather than by the lawyers engaged to vigorously represent the interests of the respective parties. T h e role of juries, so central to the functioning of justice in an adversary system, is small or nonexistent. Some commentators believe that an inquisitorial system places a greater value upon the ascertainment of truth and is more expeditious than the adversary system. 4 6 In a period when many persons are concerned that the adversary system contributes to the " l a w ' s d e l a y " and too often turns results on tactical technicalities, consideration of alternate systems of justice is surely desirable. But the committee was not persuaded that adoption of the inquisitorial system was desirable. O n e member argued that the chief virtues of an inquisitorial system were the maintenance of order and the enforcement of discipline, rather than the refined attainment of individualized justice. He added that for this reason inquisitorial systems work best in military contexts, such as courts-martial. Because the adversary system is so deeply embedded in the traditions of our nation, any attempt to replace it, even if only in selected areas, can be expected to be greeted skeptically.

Organization of Judicial Resources T h e committee discussed briefly a series of questions relating to what might be called the organization of judicial resources. T h e questions included the following: First, should the jurisdiction of the federal district courts to hear cases based upon the diversity of citizenship of the litigants be abolished, in order to relieve the federal courts of a class of litigation that many judges and scholars regard as more properly decided by state courts? 4 7 Several committee members suggested that the greatest barrier to elimination of diversity jurisdiction was the bar's conviction that the quality of justice was higher in federal courts than in state courts. Second, should the requirement that certain kinds of federal claims must be heard by three-judge federal district courts, with a direct appeal to the Supreme Court, be modified or eliminated, in order to con-

148

James O. Freedman

and Frank

Goodman

serve federal judicial resources at the trial level and reduce the obligatory workload of the Supreme Court? 4 8 Third, should the salaries of federal judges be raised in order to insure that the most competent men and women are attracted to, and retained by, the federal bench? This subject had a particular immediacy since a number of federal judges had resigned during the preceding year because they said they could not support their families and educate their children on a judge's salary. Some members of the committee thought it contextually inappropriate to argue that the salaries of federal judges should be raised when, at the same time, it was being argued that the crisis of the nation's cities was attributable in part to the excessive salary demands of other public employees who did not happen to be judges, such as postal workers, firemen, policemen, and sanitation men. Election or Appointment of State Court Judges T h e committee considered the relative wisdom of the election or appointment of state court judges. Although most judges were appointed by state governors during the nation's early years, many states moved to an elective system during the period when the theories of J a c k sonian democracy were dominant. T h e election of judges was regarded then as a device for protecting workers and tenants of land against judges too closely allied with the interests of the landed gentry. In later generations, those who support the election of judges have argued that it is more consistent with democratic theory than the appointment of judges, and that it produces a judiciary more nearly reflective of the diversity of groups in the community and more sensitive to the climate of social change. In many states, of course, the elective system has become involved with politics in the worse sense. For this reason, many persons believe that a system providing for the appointment of judges, whatever its faults, reduces the influence of political factors and permits the appointment of judges who would refuse to seek the office in a contested election. Because the evaluation of judicial performance is an inexact art, the question of which system produces the more qualified judges is not easily answered. The Role of the Supreme Court T h e committee spent relatively little time, perhaps surprisingly, on questions of the proper role of the Supreme Court in American society. Professor Abraham's paper had described the most significant of these questions—as well as the most vexatious and crucial—as requiring line-drawing for their resolution: the separation of the judicial function from the legislative function, the delineation of the proper bounds of judicial self-restraint and judicial activism, and the separation of the process of adjudicating winners and losers in lawsuits from the process of making large policy determinations in the course of deciding those lawsuits.

Deliberations of Committee II

149

There was brief discussion of whether the Supreme Court should undertake to play a larger role in the area of national security than it has in the past. One member of the committee argued vigorously that the Supreme Court should assert jurisdiction over cases seeking to place judicial controls upon what he called the police bureaucracy, particularly the FBI and the CIA. The argument was that bureaucrats engaged in paramilitary activities should be judged by the same standards and made subject to the same scrutiny in the exercise of power as other civil servants are. If the Court were to assert jurisdiction in this area, it would in some instances have to change its traditional position, based upon Article Ill's case-and-controversy requirement, that considerations of national security, properly pleaded, render such cases nonjusticiable. Other members of the committee suggested that Article III properly restricts many judicial interventions of the kind proposed because the Supreme Court lacks the resources—for example, its own State Department—to permit it to be adequately informed in deciding such cases. This position was forcefully outlined by Mr. Justice Jackson in Chicago and Southern Air Lines v. Waterman Steamship Corp.,*9 in which the Court held that it could not review presidential orders, issued pursuant to the Civil Aeronautics Act, granting or denying certificates of convenience and necessity to American air carriers for foreign air transport: The President, both as Commander-in-Chief and as the Nation's organ for foreign affairs, has available intelligence services whose reports are not and ought not to be published to the world. It would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret. . . . They are decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and which has long been held to belong in the domain of political power not subject to judicial intrusion or inquiry. 50 FEDERALISM In creating the Constitution, the framers made the national government supreme within its compass. But the national government was limited in that compass to the specific powers granted it. All of the powers not granted to the national government were retained by the states or by the sovereign people. The federal system described by the Constitution thus contemplates that governmental power will be distributed among many political units. One commentator has defined federalism as the mode of political organization that unites smaller polities within an overarching political system by distributing power among general and constituent governments in a manner de-

150

James O. Freedman and Frank Goodman

signed to protect the existence and authority of both national and subnational political systems, enabling all to share in the overall system's decision-making and executing processes. 5 1 B y diffusing governmental power among many constituent units, the structure of federalism seeks to protect the nation against the dangers that might be presented if excessive authority were centralized in the national government. It also permits the constituent units of government, in a theme often sounded by Louis D. Brandeis, to be laboratories for social experimentation, thereby creating the possibility of a greater degree of diversity in governmental styles and political responses than could be achieved if all authority were centralized in the national government. Finally, in a nation of continental scope a federal system permits many policies that affect the daily lives and welfare of the people to be adopted at a nearer rather than a farther reach, thereby creating the opportunity for a greater degree of citizen participation in their formulation. But federalism is more than merely an arrangement of governmental structures. It is also a mode of political activity calling for the creation of a partnership properly balanced to achieve its goals. For much of the nation's history, political scientists regarded the achievement of the efficient delivery of governmental services as perhaps the central goal of the federal system. Under this conception, a well-designed federal system would strive to eliminate the duplication of the governmental services by limiting the provision of any particular service to the governmental unit equipped to provide it most efficiently. T h e possibility that redundancy in the provision of certain services might sometimes be a useful device for accomplishing national goals received little consideration. This conception of federalism was reinforced by many of the attitudes of the Progressive era, which typically sought to find apolitical means of accommodating the nation's governmental structure to the contemporary understanding of political realities. In recent years, political scientists have formulated a more sophisticated conception of the challenges of federalism. T h i s newer conception suggests that questions distributing governmental power among many political units are primarily questions of politics, rather than of efficiency or structure, that must be judged from a political perspective. T h e maintenance of the federal system as a balanced partnership among the constituent units of government requires that political choices be made. In considering the implications of some of the choices that the United States has made, the committee's discussion focused on four major themes: the trend toward centralization of power in the national government; considerations of scale in the design of governmental units; citizen participation in governmental decision-making; and the need for more empirical information on how the federal system a c t u ally works in the administration of specific programs.

Deliberations of Committee II

151

The Trend Toward National Centralization of Authority It is a fact of national life that power in the federal system has increasingly gravitated from the states to the federal government during the past half-century. This trend has been the result of many factors, including the nation's desire for economic regulation and welfare protections that only the federal government could provide. Perhaps the central question for a contemporary consideration of federalism is whether this trend toward national centralization of authority can be reversed or in principle ought to be reversed. As this trend has developed, the shape of our federalism has undoubtedly changed. Some commentators, such as Rexford G. Tugwell, go so far as to argue that federalism as it has evolved no longer serves a useful purpose and should be formally replaced with a pattern of regional governmental units. 52 Many committee members expressed the belief that the scale of modern economic activity and the dimensions of contemporary social problems left the nation no effective alternative to centralizing increasing amounts of regulatory power in the national government. Two examples upon which the committee focused are illustrative. First, control of air pollution is one of the essential goals of the nation's environmental policy. If the achievement of that goal were left entirely to state and local governments, each such government would surely have an incentive to set pollution standards at a level sufficiently low to attract industry to it at the expense of states with more stringent standards. The enactment of low pollution standards by one state would also have a deleterious impact on the environmental quality of neighboring states. In such a situation, the federal government has no alternative to a chaotic competition among states except the setting of national minimal standards. Second, the growth to public prominence of multinational corporations having a momentous impact upon the American and world economy, as well as upon communities, citizens, investors, and smaller businesses, has inspired concern for more effective public regulation. It seems unlikely that such corporations—many of which are larger than some state governments in resources and influence—can truly be regulated effectively by any authority less powerful than the federal government. The fiscal crisis of New York City figured prominently in this discussion. Many committee members thought that New York City's experience demonstrated that local governments could no longer be expected to be effective in responding to economic and social problems of the magnitude of those now facing our urban areas. They argued that centralization of power in the federal government is inevitable if these problems, particularly the care of the poor, the unemployed, the ill, and the elderly, are to be addressed effectively. But what factors caused New York City's fiscal crisis? Two were mentioned most frequently: (1) the federal preemption of control with respect to many programs having a significant local impact, often by

152

James O. Freedman and Frank Goodman

attractive federal statutes m a n d a t i n g local s p e n d i n g c o m m i t m e n t s ; (2) the city's lack of a p r o s p e r o u s tax base a n d a thriving productive capacity. Some committee m e m b e r s believed, to the c o n t r a r y , t h a t N e w York City was itself the a u t h o r of m a n y of its problems, having created its financial crisis by choosing to p a y higher salaries to public employees and to provide a wider range of public services to its citizens than almost any other city in the c o u n t r y . W h a t e v e r the underlying factors, m a n y m e m b e r s of the committee seemed persuaded that N e w York C i t y ' s financial crisis had d e m o n strated the inadequacy of classic f o r m u l a t i o n s of federalism and of conventional a r g u m e n t s for decentralization. T h e events in N e w York City m a y prove to be a watershed in the realization that m a n y of the nation's most severe domestic problems can be solved only by the national g o v e r n m e n t . T h e committee also discussed o n e of the more heralded of recent political initiatives bearing on the allocation of p o w e r in the federal s y s t e m — t h e " n e w f e d e r a l i s m " of the N i x o n administration. 5 3 T h e stated p u r p o s e of that p r o g r a m was to r e t u r n a m e a s u r e of a u t h o r i t y and responsibility to state and local g o v e r n m e n t s b y m e a n s of various revenue sharing devices. But the committee's discussion seemed to suggest that the term " n e w f e d e r a l i s m " w a s more Orwellian than precise. Several committee m e m b e r s reported that the p r i m a r y political consequence of the " n e w f e d e r a l i s m " had been an increase, rather t h a n a decrease, in the authority of the federal g o v e r n m e n t with respect to the substantive p r o g r a m s involved. O n e of the m o s t significant administrative consequences of the " n e w f e d e r a l i s m " w a s a s t r e n g t h e n ing of the authority of the Office of M a n a g e m e n t a n d Budget over programs not previously w i t h i n its ken. In addition, the " n e w federali s m " permitted the President to exercise greater a u t h o r i t y across bureaucratic and d e p a r t m e n t a l lines with respect to diverse p r o g r a m s that had formerly resisted e f f o r t s at a coordinated W h i l e H o u s e domination. In short, m a n y committee m e m b e r s believed that the administrative methods chosen to i m p l e m e n t the " n e w f e d e r a l i s m " had h a d the effect, w h e t h e r coincidental or intended, of increasing the a u t h o r i t y of the President and w e a k e n i n g the p o w e r of the federal bureaucracy, without enlarging the a u t h o r i t y of state a n d local g o v e r n m e n t s in any important respects. A p r o g r a m described as a " n e w f e d e r a l i s m " thus became, in the view of m a n y committee m e m b e r s , a n e w centralization. Some committee m e m b e r s expressed t h e f u r t h e r view t h a t the revenue sharing p r o g r a m s that comprised t h e h e a r t of t h e " n e w federali s m " had been too m o d e s t in dimension to be regarded as significant experiments in federalism, since the f u n d s t r a n s f e r r e d represented only a marginal increase in state a n d local b u d g e t i n g over a wide range of domestic functions. Still, as other committee m e m b e r s contended, these p r o g r a m s had, in small ways, b r o u g h t a n e w public focus to federalism and given

Deliberations of C o m m i t t e e II

153

support, even if only moral or largely symbolic, to the belief that state and local governments are important and responsible units in decisionmaking that affects the people directly. These programs were, in short, at least symbolic gestures toward strengthening the sense of federalism. Many committee members thought that any significant federal attempt to enlarge the dimensions of revenue sharing programs would inevitably be accompanied by the imposition of greater federal control over these programs. Political history suggests that the federal government, in giving substantial amounts of money to the states and to local governments, invariably imposes increasingly restrictive conditions upon how the money may be spent—an action that would reverse the ostensible purpose of delegating power to state and local governments in the first place. Considerations of Scale in Designing Governmental Units If the respective units of government in a federal system are to be efficient as well as responsive to political realities, they must be designed to be appropriate in scale to the functions they are expected to perform. The relationship between scale and function in the performance of tasks generally has been trenchantly discussed in E. F. Schumacher, the British economist, in his book, Small is Beautiful: For every activity there is a certain appropriate scale, and the more active and intimate the activity, the smaller the number of people that can take part, the greater is the number of such relationship arrangements that need to be established. Take teaching: one listens to all sorts of extraordinary debates about the superiority of the teaching machine over some other forms of teaching. Well, let us discriminate: what are we trying to teach? It then becomes immediately apparent that certain things can only be taught in a very intimate circle, whereas other things can obviously be taught en masse, via the air, via television, via teaching machines, and so on. 54 What Schumacher writes of the relationship between scale and function in the process of teaching has equal applicability to the process of governing a nation of more than 200 million people. But how does one decide what is an appropriate scale—an appropriate order of magnitude—for a particular unit of government, whether it be the national government, a state government, or a local government? Put most simplistically, the answer must depend upon the nature of the tasks that the governmental unit is expected to perform. Many functions that government is expected to perform can be performed effectively only by a unit of government as large as the national government itself. The defense of the nation against foreign enemies is a ready example of one such function. Other governmental

154

James O. Freedman and Frank

Goodman

functions are probably performed most effectively by local units of government. Maintenance of streets and parks are examples of such functions. T h e committee began with the premise that the assignment of specific functions to particular units of government must be guided by criteria that seek to optimize such values as the efficient and humane performance of the functions involved, the maintenance of a productive economic and tax base for the unit of government involved, the creation of effective and meaningful opportunities for citizen participation in governmental decision-making, and the provision of cultural activities, recreational resources, and social amenities to all groups of citizens. If all of the basic units of government were alike, it would be possible to ask what the appropriate scale of government should be in order to optimize the desired values in the performance of particular functions. But the reality is that the basic units of government are not alike. Rather, they are almost kaleidoscopically heterogeneous in many significant respects. Thus, many of the major cities of the nation have become poorer every year as middle class families have moved to the suburbs in increasing numbers, leaving the cities with reduced productive and financial resources and a higher percentage of poor people having a disproportionate need for social and welfare services. B y contrast, most suburban communities have become enclaves for the rich and the moderately affluent, with an increasing capacity to provide an expanded range of governmental services. In short, the social and economic bases of many communities have changed drastically. Similarly, some states and counties are relatively compact and have a homogeneous population, while other states and counties are far-flung geographically and embrace diverse kinds of communities. In light of these considerations, the committee's members seemed in agreement that abstract efforts to allocate governmental functions to units differentiated only by the word " s t a t e " or " c i t y " or " c o u n t y " would not produce a workable scheme. Efforts to assign governmental tasks had to be made on a more realistic, more empirical basis. Much of the committee's discussion focused, once again, upon the economic crisis of New Y o r k City. Did that crisis demonstrate, as some members of the committee thought, that cities were obsolete in many significant respects and could no longer be regarded as effective units of government in the federal system? Did it also demonstrate, as other members thought, that a city of eight million people was hardly of an appropriate scale to perform the functions expected of a local government? O r did it further demonstrate, as still other members argued, that the problems of urban areas have become so severe that they cannot be met by city governments as presently designed? Some members of the committee thought that the economic crisis of New York City demonstrated all three propositions and left little alternative to the centralization in the national government of the power to cope with many of the basic problems—such as the provi-

Deliberations of Committee II

155

sion of welfare and the construction of adequate housing—that states and cities have proven quite unable to confront effectively. This conclusion suggests that one of the central challenges for a contemporary theory and practice of federalism is to devise means of meeting the problems of the cities—a task made more urgent by the fact that cities, as one committee member poignantly noted, have been enormously influential social organizations in American life as well as the producers and conservers of much that is valuable in our culture. Citizen Participation in Governmental Decision-making A third theme in the committee's discussion was the implications of federalism for citizen participation in governmental decision-making. What is the appropriate degree of citizen participation in governmental programs? How should a federal system be structured to achieve the desired degree of citizen participation? Would a federal system that placed more authority at the local level result in greater citizen participation in the decision-making processes of government? The impulse toward increased citizen participation in governmental decision-making has been particularly strong during the last fifteen years. The slogan of the War on Poverty—that government policies should be framed and administered with the "maximum feasible participation" of those they are intended to serve 55 —anticipated a number of related developments that were to form a discernable pattern. Included among these developments were the enactment of the Freedom of Information Act 56 by the federal government, the adoption by many states of Government in the Sunshine Acts, and the growth of citizen and consumer groups under the guidance of figures like Ralph Nader. These developments shared some common premises: that the growth of governmental power and bureaucracy had obliterated the voice of the average citizen, and that the government's claim of expertise in the administration of specialized programs was not alone a sufficient guarantor of the formulation of sound public policy or of the consideration of a sufficiently wide variety of views. It now appears that the demand for greater opportunities for citizen participation in governmental decision-making was part of the nation's response to the larger crisis of accountability now attending many of our governmental institutions. 57 For this reason, it is likely that formal opportunities for greater citizen participation in many governmental processes, particularly those of administrative agencies, 58 will increase in the years just ahead. Citizen participation may be regarded as an end desirable in itself— as a symbolic demonstration that sovereignty does indeed reside in the people, as a therapeutic act in the drama of citizenship, as a device to insure that decision-making is kept responsive to the needs of widely representative individuals. The committee's discussion was concerned with exploring how, if at all, effective citizen participation can be achieved. One committee member suggested the need for fundamental con-

156

James O. Freedman and Frank Goodman

stitutional change. He argued that greater citizen participation and control could be achieved b y redefining—in order to r e i n v i g o r a t e — the Ninth Amendment. 5 9 T h e argument was that the Ninth Amendment should be redefined from being concerned primarily with protecting individual privacy to being concerned primarily with strengthening local control and local power. A Ninth Amendment so conceived might, for example, permit local chartering of banks and greater local control over commerce. In any event, so the argument went, the purpose of redefining the Ninth Amendment would be to achieve a fundamental constitutional statement that related issues of the appropriate relationship between scale and function in a federal system to issues of local control and participation. But many committee members seemed to believe that changes of a constitutional dimension were premature in the present state of our knowledge about how citizen participation works and why it frequently does not work effectively. Indeed, these committee members questioned whether the experience of recent years gives any basis for believing that the creation of opportunities for citizen participation results in any significant degree of local control of governmental decision-making. Repeated reference was made to the W a r on Poverty's attempt to enlist citizen efforts in ways that went beyond such conventional forms of participation as voting, becoming active in politics, running for elective office, and lobbying in the legislature. 6 0 T h e W a r on Poverty sought to change the character of citizen participation in the policy-making counsels of government. M a n y members of the committee believed that the W a r on Poverty's efforts in this respect must be regarded as a failure. Few citizens apparently made the effort to participate or succeeded in participating at all, and those who did often found that local government officials were able to successfully resist sharing their decision-making authority with persons whom they regarded as outsiders. Some members of the committee attributed the apparent failure of the W a r on Poverty's efforts in this direction to the fact that the attempt to change the character of participation was conceived b y a few influential officials at the federal level but never received adequate support from the local governments that would be most affected. O t h e r committee members observed that local bureaucrats and professional staff members can always retain control of small units of government, such as county health commissions and community action groups, more readily than they can of larger units. O n e committee member even noted, only partly in jest, that ordinary citizens often complain that town meetings, the most inclusive form of democratic governance, are "status ridden." T h u s , some committee members concluded that the decision of the W a r on Poverty to focus upon small local units of government in an attempt to increase the capacity for, and the degree of, citizen participation in decision-making may have been unwise from the start.

Deliberations of Committee II

157

These melancholy observations on the fate of the W a r on Poverty's efforts to increase citizen participation led several committee members to the belief that the task of structuring effective citizen participation in a federal system may be best achieved at levels other than the local. Some committee members suggested that, perhaps paradoxically, most citizens regard the federal government as the most open of the various units of government to which they are subject, as well as the most responsive to expressions of citizen opinion. If these conclusions are correct, the goal of increasing the scope and enhancing the quality of citizen participation in governmental decision-making may finally be best achieved by structuring the federal system so that opportunities for participation exist especially at the national level, rather than at the state or local levels. The Need for Empirical Studies The committee's final theme concerned the implications of the fact that our knowledge of how the federal system actually operates in the administration of governmental programs is, at best, limited. A number of committee members stated that although there is a considerable body of literature indicating what lawyers believe the public law of federalism ought to be, there are few significant studies that explore the interaction of local, county, state, and federal agencies at the level where services are actually rendered. What we need, they argued, are serious and substantial empirical studies of federalism in operation that approach in quality the studies we have of many of the nation's other governmental institutions. By way of illustration, reference was made to the limited extent of our understanding of how the thousands of community mental health centers that were established during the Kennedy administration actually work. Creation of these centers was part of a new movement to treat the mentally ill and emotionally disturbed in community settings rather than in institutions. It was also part of a movement to commit the federal government to a share of responsibility in an area formerly left to state and local governments. And yet, more than a decade later, we know very little about how the program has worked in practice. W e know little about the effectiveness of the treatment and other services that these centers provide. W e know little about the policies that these centers actually follow, and whether they are established by federal authorities or by local authorities, by bureaucrats, professionals, or citizens. Most important of all, we know little about whether community mental health centers have in any way proven a better method of delivering mental health services because of their relationship to every level of government in the federal system. Committee members suggested that answers to questions such as these must be explored—with respect, of course, to the hundreds of programs administered cooperatively by the various levels of government—if we are to be in a position to decide wisely on what kinds of services are provided most effectively to whom by what levels of

158

James O. Freedman and Frank

Goodman

government. The empirical challenge, as one member of the committee suggested, is a large one, since there are 3,500 counties that administer federally-originated programs; studies would have to be done of at least 100 of these counties if a serious contribution to our understanding of the federal system in operation were to be achieved. T h e committee seemed persuaded that it may be more important at this stage of our political and intellectual development to acquire a more detailed empirical basis for understanding the functioning of "street-level bureaucracy" in administering a governmental program than it is to further refine the political science theories of federalism that the program may implicate. It is surely possible that case studies of the kind envisioned will take a generation to complete.

Deliberations of Committee II

159

NOTES 1. Aaron Wildavsky, "The Past and Future Presidency," The Public Interest 41 (Fall, 1975), p. 56 at p. 59. 2. Ibid., p. 59. 3. P.L. 85-31S, 71 Stat. 634, 9 September 1957. 4. Henry J. Friendly, The Federal Administrative Agencies: The Need for Better Definition of Standards (Cambridge: Harvard University Press, 1962), p. 167. 5. Executive Order 9981 (26 July 1948). 6. Brown (1954).

v.

Board

of

Education,

347 U.S.

483

7. P.L. 88-352, 78 Stat. 241, 2 July 1964. 8. P.L. 90-284, 82 Stat. 7 3 , 1 1 April 1968. 9. P.L. 94-73, 89 Stat. 400, 6 August 1975. 10. A good statement of the pros and cons is found in Nelson W . Polsby, Political Promises (New Y o r k : Oxford University Press, 1974), pp. 101-7. See also Charles M. Hardin, Presidential Power and Accountability (Chicago: University of Chicago Press, 1974). 11. Polsby, Political Promises, p. 104. 12. See generally, Friendly, The Federal Administrative Agencies-, Theodore J. Lowi, The End of Liberalism (New York: W. W . Norton & Co., Inc., 1968). 13. See, for example, Senate Committee on Government Operations, Study on Federal Regulation, 95th Cong., 1st Sess. (1977); Senate Committee on Government Operations, Hearings on Improving Congressional Oversight of Federal Regulatory Agencies, 94th Cong., 1st Sess. (1976). 14. See generally, Senate Committee on Government Operations, Study on Federal Regulation, vol. II, Congressional Oversight of Regulatory Agencies, pp. 1 1 5 - 2 2 ; Geoffrey S. Stewart, "Constitutionality of the Legislative V e t o , " Harvard Journal on Legislation 13 (1976), p. 593; Note, "Congressional Veto of Administrative Action: The Probable Response to a Constitutional Challenge," Duke Law Journal, (1976), p. 285; H. Lee Watson, "Congress Steps Out: A Look at Congressional Control of the Executive," California Law Review 6 3 (1975), p. 983. 15. 1976 Congressional Quarterly Almanac, p. 508. 16. See generally, Senate Committee on Government Operations, Study on Federal Regulation, 95th Cong., 1st Sess. (1977). 17. H.R. 12048, 94th Cong., 2nd Sess. (1976); Congressional Record 122, (daily ed. 21 September 1976), pp. H-l0718-10719. 18. See materials cited supra

note 12.

19. T h e last objection is applicable particularly to proposals which require that the legislative veto be based upon a congressional finding that the proposed regulation is contrary to law, inconsistent with the intent of Congress, or goes beyond the mandate of the legislation it is designed to implement. See, e.g., S. 2258, 94th Cong. 1st Sess. (1975). 20. See generally. Senate Committee on Govern-

160

ment Operations, Study note 13 at p. 130.

on Federal

Regulation,

supra

21. William O. Douglas, Co East, Young Man (New York: Random House, Inc., 1974), p. 297. 22. Lowi, The End of Liberalism, p. 309. 23. Lloyd N. Cutler and David R. Johnson, "Regulation and the Political Process," Yale Law Journal 84 (1975), p. 1395. 24. S. 2925, 94th Cong., 2nd Sess. (1976); S. 2, 95th Cong., 1st Sess. (1977). 25. For example, S. 2258, 94th Cong., 1st (1975); S. 2812, 94th Cong., 1st Sess. (1975).

Sess.

26. S. 2812, 94th Cong., 1st Sess. (1975). 27. Richard Fenno, Congressmen in (Boston: Little, Brown & Co., 1973). 28. Ibid. 29. New York

Times,

Committees

3 February 1977, p. 22.

30. Hugh G. Gallagher, "Presidents, Congress, and the Legislative Functions," in Rexford G. Tugwell and Thomas E. Cronin, eds., The Presidency Reappraised (New York: Praeger Publishers, Inc., 1974), pp. 217, 219. 31. 347 U.S. 483 (1954). 32. 377 U.S. 533 (1964). 33. 418 U.S. 683 (1974). Compare Senate Select Committee on Presidential Campaign Activities v. Nixon, 498 F.2d 725 (D.C. Cir. 1974). 34. Alden Todd, Justice on Trial (New York: McGraw-Hill, Inc., 1964). 35. Felix Frankfurter, " T h e Supreme Court in the Mirror of Justices," University of Pennsylvania Law Review 105 (1957), p. 781 at p. 784. 36. Ibid., at p. 785. Justice Holmes expressed similar views shortly after his appointment to the Court, following twenty years of service on the Supreme Judicial Court of Massachusetts. See Mark deWolfe Howe, ed., Holmes-Pollock Letters, vol. 1 (Cambridge: Harvard University Press, 1941), pp. 109-10. 37. Frankfurter, " T h e Supreme Court in the Mirror of Justices," p. 795. 38. Learned Hand, "Sources of Tolerance," The Spirit of Liberty (Alfred A. Knopf, Inc., New York, 1952), p. 81. 39. See Henry J. Abraham, Justices and Presidents: A Political History of Appointments to the Supreme Court (New York: Oxford University Press, 1974), pp. 191-94. 40. Frankfurter, " T h e Supreme Court in the Mirror of Justices," pp. 795-96. 41. See, e.g., Engel v. Vitale, 370 U.S. 421 (1962) (school prayer); Roe v. Wade, 410 U.S. 113 (1973) (abortion); Miranda v. Arizona, 384 U.S. 436 (1966) (criminal suspects). 42. Doe v. Commonwealth's Attorney for City of Richmond, 403 F. Supp. 1199 (E.D. Va. 1975), affirmed, 425 U.S. 901 (1976). 43. See generally, Joseph P. Harris, The Advice and Consent of the Senate (Berkeley: University of

James O. Freedman and Frank

Goodman

California Press, 1 9 5 3 ) ; Harold W . Chase, federal Judges: The Appointing Process (Minneapolis: University of Minnesota Press, 1972).

53. See generally, Michael D . R e a g a n , The New Federalism (New Y o r k : O x f o r d University Press, 1972).

44. S e e Jerome Frank, Courts on Trial: Myth and Reality in American Justice (New Y o r k : Atheneum Publishers, 1963), pp. 8 0 - 8 5 .

54. E. F. Schumacher, Small is Beautiful (New Y o r k : Harper Sc. Row Publishers, 1973), p. 66.

45. See, e.g., Marvin E. Frankel, " T h e Search for T r u t h : An Umpireal V i e w , " University of Pennsylvania Law Review 123 (1975), p. 1031. 46. M i r j a n D a m a s k a , "Evidentiary Barriers to Conviction and T w o Models of Criminal Procedure: A Comparative S t u d y , " University of Pennsylvania Law Review 121 (1973), p. 5 0 6 ; M i r j a n D a m a s k a , " P r e s e n tation of Evidence and Factfinding Precision, University of Pennsylvania Law Review 123 (1975), p. 1083. 47. See generally, H. M . Hart and Herbert Wechsler, eds., The Federal Courts and the Federal System, 2nd ed. (Mineola: Foundation Press, Inc., 1973), pp. 1 0 5 0 - 1 1 0 2 ; Henry J. Friendly, " T h e Historic Basis of the Diversity Jurisdiction," Harvard Law Review 41 (1928), p. 483. 48. See generally, Hart and Wechsler, The Federal Courts and the Federal System, pp. 4 5 - 4 7 , 9 6 7 - 7 9 ; David Currie, " T h e Three-Judge District Court in Constitutional Litigation," University of Chicago Law Review 32 (1964), p. 1. 49. 333 U.S. 103 (1948). 50. Ibid, at 111. 51. Daniel J. Tlazar, American Federalism: A View from the States (New Y o r k : T h o m a s Y. Crowell Co., Inc., 1966), p. 2. 52. Rexford G. Tugwell, The Emerging Constitution (New Y o r k : Harper's Magazine Press, 1974).

D e l i b e r a t i o n s o f C o m m i t t e e II

55. See Daniel P. Moynihan, Maximum Misunderstanding (Glencoe: Free Press, 1969).

Feasible

56. 5 U.S.C. sec. 552. 57. See e.g., Alexander M. Bickel, The Supreme Court and the Idea of Progress (New Y o r k : Harper & Row Publishers, 1 9 7 0 ) ; Robert A. Dahl, After the Revolution (New H a v e n : Yale University Press, 1 9 7 0 ) ; Herman Finer, The Presidency: Crisis and Regeneration (Chicago: University of Chicago Press, 1 9 6 0 ) ; Lowi, The End of Liberalism; Arthur M. Schlesinger, Jr., The Imperial Presidency (Boston: Houghton Mifflin Co., 1973). 58. See Office of Communication of United Church of Christ v. FCC, 359 F.2d 994 (D.C. Cir. 1 9 6 6 ) ; Roger C. Cramton, " T h e W h y , Where and How of Broadened Public Participation in the Administrative Process," Georgetown Law Journal 60 (1972), p. 525. 59. T h e Ninth Amendment reads: " T h e enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." 60. T h e Economic Opportunity A c t of 1964 (42 U.S.C. sec. 2781(4)) required that anti-poverty programs be carried out with the " m a x i m u m feasible participation" of the residents of the communities involved.

161

COMMITTEE III

SHAPING OF PUBLIC POLICY* by Charles E. Gilbert

This is a drastically abbreviated version of the paper written as background for the Bicentennial Conference on the U.S. Constitution. I thought the original paper stringently selective and even summarily obscure, so its distillation presents a problem. In this version I shall omit some topics of the original entirely and truncate discussion of others severely. T h e four topics of the Bicentennial Conference overlap constructively. In particular, issues about " t h e shaping of public policy" and " t h e effectiveness of governmental operations" seem reciprocal. " T h e Shaping of Public Policy" might equally be construed as the public shaping of policy-—as reflecting concern about the republican or democratic or popular aspects of constitutional government in the United States. T h a t is how I have construed it, with a weather eye on "Revolutionary values," governmental effectiveness, and foreign affairs. In this interpretation, which relates the constitutional order to liberal democratic values primarily, the topic remains immense. Still, if we can refer without hubris to the proceedings at Philadelphia in 1 7 7 6 and 1 7 8 7 , we can see that the popular dimension of government was for the participants in those proceedings just t h a t — a dimension of government presumptively critical for most and pervasive for many, but not the entirety of government for anyone. Liberty, equality, justice, and the effectiveness of government in behalf of security and welfare were all concerns potentially limiting the popular dimensions of government as well as dependent on "popular sovereignty" in degree. But these issues of limitation and dependence—of the scope and structure of "popular sovereignty"—are, I suppose, more difficult today institutionally than they were in the founding period; and there is probably no more theoretical agreement about them today. •Revised 15 N o v e m b e r 1976.

In my definition of the topic and appraisal of the issues it presents, formal revision of the Constitution turns out to be of marginal concern. For the most part this paper deals with extraconstitutional institutions; and I conclude that constitutional amendment is unlikely to contribute substantially to their improvement. This seems to me so despite vast changes in American life since the founding period—changes accompanied, however, by operative changes in the Constitution as well—and despite the changes in our immediate experiencing and in prospect today. But neither my constitutional conclusion nor the changing conditions of American public life should be taken for granted. So this exercise begins with an attempt to identify trends and prospects in American society that seem most likely to be troublesome for the shaping of public policy. I. T R E N D S A N D PROSPECTS Nearly two centuries ago the movement toward the American Constitution was grounded consequentially in analysis of American society and of its relation to the world abroad. Now American society sustains professions for " p l a n n i n g " and " f u t u r i s m , " and our literature of grand analysis and extrapolation is enormous. But there is no avoiding the controversial task of selection from this literature, as well as from one's own observations and speculations; one must ask what tendencies may shape fundamentally the shaping of policy in the nation's third century. I shall identify ten elliptically, prescinding, I hope, from the most obviously topical, attempting to steer between apocalypse and complacency, pursuing no particular order of urgency or priority, and foregoing elaboration. 1. Environmental Constraint This might be termed the Heilbroner prospect, consisting in resource shortages and growing pressure on the human habitat, posing limits to economic growth and prompting prodigies of public regulation or even allocation. 1 If this is ultimately a controversial prospect, scenarios short of the ultimate—nevertheless entailing slower growth and more collective allocation—are less so; and in almost any version of this prospect public regulation appears more pervasive and the "people of plenty" hypothesis about American democratic politics is qualified. 2. The Modern Mixed Economy This economy may be more susceptible to inflation than its preKeynesian precursor—not just politically, but endemically. If so, it poses hard decisions both technically and politically in pressures for regulation and redistribution, complicating social justice; and the destructive effects of inflation on modern democracies have been considerable. This economy is also more characteristically a service economy whose " n e w property" and " n e w income" tend to enlarge dependence on public institutions and collective decisions. 2 T h e governmental sector bulks larger in its national-income accounts, enlarging the scope

164

Charles

E.

Gilbert

of public policy; b u t it also exhibits a growing "third sector" largely dependent on public policy and raising difficult issues of subsidy and accountability. 3 This economy is f u r t h e r characterized by large organizations in all sectors, raising political issues of elephantine pluralism difficult to compass for individual actors and for democratic theory, allegedly generating a bureaucratic symbiosis of public and private organizations and pressure for " p l a n n i n g " in and from the private sector. 4 3. The Changing International Order Certainly international considerations, political and economic, played a large role in the constitutional movement and in the evolution of early American political alignments. Arguably, our international conditions today are more like those of the late 18th century than like those of the late 19th century; but the critical question for the shaping of public policy now is how they may be historically and categorically unique—a question considered more extensively in Professor Oliver's paper. Some aspects of that question stem from topics already m e n t i o n e d — f r o m , for example, environmental and resource controls and the multinational corporation, along with inchoate issues of global income distribution. In the shaping of American public policy national security bulks conspicuously in the federal budget; and foreign affairs nearly preoccupy the President. T h e capacities of political organization and of Congress to relate the national interest to the rest of the world are taxed; and they are strained by the close interpenetration of foreign and domestic policy. T h e issue of political and governmental capacity is perhaps most cogent in foreign affairs, where the case for constitutional reform is perhaps most apparent; but one may also ask w h e t h e r the reality of "bureaucratic politics" is ineluctable in b o t h foreign and domestic policy, regardless of constitutional framework. 4. Postindustrial Society This complex, problematical tendency is a nest of implications. As Daniel Bell and others have a d u m b r a t e d the trend, its educational and professional base poses a prospect of more stringent social stratification, or of meritocratic tensions and the white-collar unionism they tend to engender. 5 T h e large, labor-intensive service sector of this society may generate implicit tensions between social sectors apparently and independently productive in markets and those dependent on public subsidy of the functions they perform. 6 T h e technological and educational bases of such a society may produce d e m a n d s for more explicit policy-making—for " s y s t e m i c " approaches to policy beyond our political, administrative, or intellectual capacity; for more attention to "quality of life" not only in the environment but also in side effects of social transactions on life styles as well as on life chances and in "social" as well as economic development. Arguably, these emphases tend toward a more importunate, moralistic politics in which interests construed as " v a l u e s " are difficult to aggregate or integrate. Histori-

Shaping of Public Policy

165

cally, economic issues are commonly said to have been easier to compromise than social or cultural issues; but these types may be more closely combined in "postindustrial society." 7 In such a society public policies may seem more arbitrary as they are more general; claims for consultation and participation may be more urgent; and sensitivities to "power" may circumscribe public authority. Governmental devolution is apt to seem a logical response to such problems; but it may also exacerbate them while complicating accountability and neglecting general issues of regulation and redistribution. 5. Changing Political Values and Ideologies "Postindustrial society" may or may not materialize as an aggregate; its emergence may or may not rival that of the industrial revolution in profundity of effects on politics and policy. But some putative postindustrial attributes are already affecting American political organization and alignments; and some scholars think they are altering American "Revolutionary values" toward a more ideological and divisive politics. 8 Most speculations I have read suggest growing strains on governmental authority and political capacity resulting from something like elite or middle-class populism. Among the values and attitudes expected to contribute to these problems are: an assumption that public "solutions" to "problems" can and should be handled technologically instead of politically; a kindred expectation of continuous technological change or progress and of institutional "lag," thus challenging institutional legitimacy; a heightened emphasis on active participation, especially in the professional classes, as a moral imperative or mode of self-realization instead of a contingent protection of discrete interests and traditional rights; a resulting inflation of "liberty" toward the negation of "power" construed as arbitrary decision or interference with self-development or failure of consultation and opportunity for participation; a growing stress on equality in the Tocqueville sense of envious leveling down as well as the charitable sense of leveling up—not necessarily with centralizing tendencies, but with chronic meritocratic tensions; more particularistic interests in "communities" defined by attributes of culture or "life style"; increasing attention to "quality of life" through public provision of amenities and environmental regulation; and rejection of political bargaining and compromise, as opposed to participation and integration. Such tendencies may be adduced pejoratively, as threats to political legitimacy and stability, or they may be approved as natural extensions of American Revolutionary values. They might be both; they may not develop anyway. The likeliest trend in "Revolutionary values," I think, is the progressive assimilation of liberty to equality. There is probably also some tension between "Revolutionary values" (including humanistic, altruistic values) and the conditions of largescale, programmatic, and pluralistic government. Apparent disjunctions between "overt" and "covert" policies—between the rhetoric

166

Charles E. Gilbert

of electoral politics, the terms of interest-group negotiations and the mechanics of political coalition can stimulate the issue of " t r u s t , " so much discussed today. 9 While political tolerance and understanding might as plausibly wax in the technological and educational circumstances of "postindustrial society," this seems likeliest to occur in diffusions of authority and devolutions of function at odds with systemic conceptions of policy. In any case, there are outstanding claims for racial equality and social welfare left over from " a g r a r i a n " and " i n d u s t r i a l " stages that can hardly be settled equitably in a generation.

6. Modern Mass Communications Social science seems to be agnostic on the effects of electronic mass communications for individual development and social organization. I think common sense suggests they are pervasive; and I suppose the effects of television for political organization and opinion formation have been profound—taken in tandem with other tendencies mentioned here and together with the role of electronic data processing in election campaigns. The most general effects, I suggest, have been toward more nationalization of political issues and organizational erosion of political parties, especially in presidential politics. Technology, market organization, and professional ethos have arguably tended toward a homogeneity in the mainstream media that has heightened their influence contingently and in agenda setting. The concentration and scale of the major journalistic institutions may entail tendencies of monopolistic competition—marginal product differentiation without risking radical dissimilarity; but common professional conventions and perspectives are also probably no less effective in the working press than in other fields. More serious than that of homogeneity is the allegation that during the past decade the major media adopted a doctrine of active opposition to governmental policy, especially at the presidential level, and emphasized the shaping, not merely the informing, of public opinion. 1 0 O n this view the fourth estate now plays a more deliberate and partisan role in shaping policy, competing more directly with political and governmental institutions. I don't profess to know whether the allegation is well founded with respect to intentions; but I suspect the problem results from the greater scale and visibility of our principal journalistic enterprises and is perhaps reciprocally enhanced by decline of political organization as well as by serious issues of governmental secrecy and publicity, including opportunistic use of the press b y pluralistic public bureaucracies. These factors may intensify the intrinsic journalistic difficulty of steering between cooptation and opposition. The more apparent national scale of the media in television may condition the industry's sense of public responsibility for visible autonomy. It also seems conceivable that concern for audience ratings among more educated viewers could tilt electronic journalism toward personal exposure in national politics after the pattern of local reporting (and there has been ample provocation for

Shaping of Public Policy

167

this). If television has contributed to the decline of party organization in national politics, then its influence has probably gained reciprocally, much as the press is thought to be most influential locally where politics is nonpartisan. Allegations of journalistic partisanship are not new in American politics with respect to either substantial accuracy or systemic bias: remember Thomas Jefferson! Still, the corporate interest and professional ethos of our principal journalistic enterprises are more strictly important issues of public policy today as journalistic insistence on total disclosure contends implicitly with political leadership for institutional authority. And as public policy becomes more technical and multifarious, so do the problems of informative reporting. The technology and economics of electronic journalism seem to predispose it toward the surface and the instant of the news, toward the personal over the circumstantial in its definition, aside from exceptional documentaries. As television marginally displaces print the danger is that even literate viewers may too easily satisfy conventional standards of cognitive civic obligation and vicarious participation without the kind of information that stimulates deliberation. 7. An Urban Society Preceding "postindustrialism" logically and chronologically, urbanization changed American political organization and challenged its Jeffersonian doctrines. This has long been an urban nation; but the problem of the "spread city" is more recent in its demands on politics and policy. These include disparities between territorial "community" and large-scale industrial organization or association." They probably also include the public-service diseconomies of large agglomerations—not only economic and environmental, but also in the problems of bureaucratic capacity and responsiveness in dealing with people directly where they live. Such urbanization has raised potentially serious jurisdictional issues in relating the functional logic of public management to political organization and civic participation based on residential patterns within governmental boundaries, while the urban regions and their jurisdictional divisions are the loci of basic cleavages—racial, class, and cultural—in American politics. They long have been. But these tendencies are more apparent in national policy now and prospectively; and, as remarked below, national policies reach more deeply into local governance today. 8. The Crowing Density and Changing Balance of Federalism Probably the majority view among scholars is that American federalism has always been a system more of shared than of compartmentalized functions as well as of close public-private collaboration, though interpretations differ in degree. 12 But in the last fifteen years particularly there has been a quantum increase of density, complexity, and (less certainly) centralization in American federalism. In that period federal grants to state and local governments have risen from 16.4 to about 28 percent of national domestic expenditures and from 11.6

168

Charles E. Gilbert

to about 21 percent of state and local revenues. Direct federalism (i.e., grants to localities bypassing states), private federalism (i.e., grants to nongovernmental institutions), and regional federalism (i.e., grants to regional planning or functional agencies) are, frequently in combination, responses to problems or importunities in urban and "postindustrial" society. They strengthen new program constituencies and establish new professions; they are sometimes attempts to "target" on national objectives through new jurisdictions or quasigovernments; and their clientele-participation requirements seem an equalizing sequel to earlier civil service requirements. Scholars disagree about whether the balance of centralization and decentralization has really altered much in recent years (prescinding here from the role of the federal courts). 1 3 But the national policy role in such fields as education, child and youth development, and health care has probably grown by comparison with state and local roles since 1960, and federal regulatory measures for environmental control and resource conservation have developed the putative national police power through state and local governments and sanctioned state and local policies through grants. 1 4 Anent the shaping of public policy the new patterns of federalism exemplify tendencies remarked in the preceding topics. They also pose political complexities of their own through new functional or professional constituencies and some further erosion of generalpurpose local government. Thus they raise issues of public accountability at all governmental levels, as well as through devolution to private institutions, even as they create new channels of participation and marginal redistribution. 9. The Modern Administrative State The problems of this topic are familiar enough, although the basic change in scale of the federal bureaucracy has occurred in less than the last half century. 1 5 In the shaping of public policy this has been a change of constitutional importance, although the federal bureaucracy hardly holds the implicit constitutional status of administration in Britain or in some European nations: it raises issues of accountability to elected officials, of internal conceptions of responsibility and technical rationality, of appropriate responsiveness to clients, and of "costproductivity." The inertial properties of bureaucratic pluralism raise obvious problems for popular sovereignty. W h a t effects publicemployee organization and collective bargaining may have at the federal level remain to be seen; but this uncertain prospect assumes a constitutional importance similar to that of the decline of the legal doctrine of "privilege." Both tendencies depart potentially from traditional democratic understandings of administrative responsibility, as do modern "developmental" doctrines of organization and management or, in another direction, conceptions of "efficiency" adapted from conglomerate management. Clearly the organization, staffing, public relations, and managerial premises of public administration are central in the shaping of public policy.

Shaping of Public Policy

169

10. The Changing Character of Public Policy The more public policy there is, the more it is shaping—cumulative and reflexive—as well as shaped. Moreover, in a "systems" conception of politics, policies are not only outputs in response to demands; they generate new expectations, demands, and (perhaps) political "overloads." Such obvious considerations as these seem likely to become more consequential than they already are with the growing density and complexity of policy. One classical democratic challenge lies in the technicality of much of modern policy. The problem of relating layman and expert in governance goes back to Plato; but science, technology, and economics have complicated it in ways still classically identified by Don K. Price.16 Then there is the challenge of connection and comprehensiveness in large-scale government—how everything potentially relates to everything else—which administrative organization can only mitigate. The problem of clustering "policies" under "systemic" priorities and administrative rubrics is an organizational classic, if increasingly acute. In one formulation it is the problem of "planning," which has figured ambiguously in the language of economic policy since the Depression and the Employment Act of 1946, reemerging now in the Humphrey-Javits bill and, with proposals for deregulation, challenging our capacities for more selective, less generally crescive policy-making.17 One harbinger of "postindustrial society" may have been the advent of federal "planning" for professional manpower together with abundant subsidies of research and development in higher education after mid-century. Such policies create personal equities and fiscal entailments that tend to endure: they are hard to plan intelligently and hard to alter politically. In the same period the objectives of social policy have become more explicitly developmental and redevelopmental—by which I mean to suggest the promotion of individual and community improvement or rehabilitation through public services and subsidies. Such policies commonly depend on the motivation of individual subjects and the mobilization of particular communities for their results, so they are hard to implement effectively on a large scale. The range and penetration of public regulations have been extended impressively through national policy: civil rights and equal-opportunity legislation (and adjudication) are examples, as are the intensification of professional regulation and extension of measures for environmental protection and energy conservation already remarked. A well-known analysis of public policies classifies them as distributive (e.g., most subsidies), redistributive, regulatory, and constituent (i.e., alterations of rules, structures, and opportunities for shaping policy).18 One point of this analysis is that the characteristics of policies tend to determine the modes and loci of shaping policies. Conceding that these distinctions frequently apply more to perceptions than to effects (and that the classification seems incomplete), one may still suggest a general tendency to try not only to reach but to

170

Charles E. Gilbert

mitigate redistributive objectives through other types of policy. But it seems likely that redistributive perceptions in policy are becoming more general as policy is more extensive and as the quest for equality quickens. And regulatory measures, as they become more pervasive, may also appear more invidious and redistributive. So the emollient tendency toward " d i s t r i b u t i v e " and " c o n s t i t u e n t " policies is understandable, though it may be running out of room and (as I'll suggest below) may not be unequivocally good for democratic institutions. Finally, this may be the place to note the growing role of the federal trial judiciary in shaping public policy. Environmental and civil rights regulation are leading examples, wherein district courts function roughly as regulatory commissions pursuant to generous statutory delegations under relaxed rules of standing and of extended discovery, finding " l e g i s l a t i v e " facts and fashioning comprehensive remedies prospectively in analogs to equity for grievances based in " p u b l i c - p o l i c y " claims. T h i s extension of civil proceedings to public law has been paralleled by the expansion of statutory interests open to judicial review of administrative action at all levels through congressional objectives, including federal-grant standards, and perhaps through taxpayer standing to press certain constitutional interests against federal policy. 1 9 In short, more national policy is being made by courts (as much local policy long has b e e n ) — n o t through judicial review of legislation, but by judicial participation in administration, and increasingly by trial instead of appeal. Some of the trends and prospects just suggested are undeniably real; others—their projections especially—are problematical. That goes for their institutional implications as well. O n e general implication only need be remarked now. In the terms of the Bicentennial Conference, tensions between governmental effectiveness, the popular role in the shaping of policy, and the evolution of Revolutionary values may continue to intensify. Some trends discussed above—e.g., the administrative state, the modern mixed economy, and the more pervasive regulatory role of the national g o v e r n m e n t — a r e at odds with aspects of the doctrinal Revolutionary heritage. T h e " p o p u l a r " and " r i g h t e o u s " aspects of that heritage are at odds not only with the large-scale " e l i t e pluralism" of major American institutions, but with certain " r e p u b l i c a n " versions of the constitutional heritage that tend to reinforce the bargaining mode in policy-making. T h e s e tensions will be evident in the balance of this paper.

II. THE THEORY OF POPULAR SOVEREIGNTY I take this section title with some reservations from the conference agenda. 2 0 Technically I take popular sovereignty to mean the grounding of g o v e r n m e n t — b o t h its constitution and its continuing r u l e — in the population at large as a legal or contractual understanding; or, practically speaking, " t h e people's ability to control their governm e n t . " 2 1 It is an ancient notion, historically fundamental in democratic development, though fraught with ambiguities and hardly the whole of democratic thought. In modern usage it is apt to convey a

Shaping o f Public Policy

171

populistic emphasis on absolute majority rule at the same time that, in modern political analysis, the formal conception of popular sovereignty is increasingly problematical. 22 In this form popular sovereignty conflicts potentially with conceptions of constitutionalism or limited government. 23 Still, the conception has figured prominently in American Revolutionary values, and in a limiting sense it is a useful rubric under which to consider democratic conditions for the shaping of public policy. Such conditions are considered most summarily here. As to the dominant issues of 20th century constitutional criticism, I suppose the founding compromise was anti-populist but not antipopular or anti-democratic. It provided a system of republican, or representative, government, but with emphasis on arrangements for balancing "responsiveness" by "responsibility." These arrangements —primarily the federal bargain and the separation of powers— reflected serious concerns for liberty, security, tranquility, and official effectiveness; and I believe they reflected also the framers' preponderant view of their society as one in which serious inequalities of condition (as distinct from sharp political competition or animosity) were unlikely to develop within the constitutional provisions for liberty and a national economy. 2 4 According to some closely related lines of constitutional criticism the framework of federalism and imperfectly separated "powers" is at once redundant in distraint of tyranny and overabundant in restraint of majority rule. In the most general version of this view the "large republic" originally created through federalism is the sufficient condition of liberty through its natural pluralism, while the reinforcement of localism and fragmentation of majorities through formal constitutional arrangements are otiose or perverse or both with respect to liberty, equality, and public capacity. But I suspect that this view ignores the founding concern about how factional designs within government might encourage the mobilization of passionate or intolerant publics; and I suppose that this view identifies liberty with equality and responsibility with responsiveness in greater degree than did the preponderant republican opinion of the founders. 25 These issues of assimilation or distinction of liberty and equality, and of responsibility and responsiveness, are a continuing heritage in American democratic theory, I think, though I have to neglect their various implications here. 26 Perhaps it will suffice to say that majority-rule and minority-rights conceptions of American politics, and pragmatic and formalistic conceptions of American politics, remain pertinent tensions in American democracy today in arrangements for the shaping of policy. 27 Finally, I hope it will also suffice here merely to point to the pertinence of certain modern perspectives on American democracy. I'll identify these as elitist, pluralist, popular (or electoral), and participatory. The labels alone may suggest enough for present purposes to readers of contemporary American political science. In certain versions, as I observed in the original paper, each of these perspectives stands for critical attributes of American democratic politics. Within

172

Charles E. Gilbert

l i m i t s these p e r t i n e n t v e r s i o n s include elite p l u r a l i s m and elite electoral d e m o c r a c y , p a r t i c i p a t o r y p l u r a l i s m and p a r t i c i p a t o r y

electoral

d e m o c r a c y ; but I s u p p o s e the t e n s i o n b e t w e e n pluralist and popular c o n c e p t i o n s of A m e r i c a n politics is c e n t r a l , e v e n t h o u g h such

con-

c e p t i o n s o v e r l a p in their a t t e n t i o n to p o p u l a r c o n s u l t a t i o n and electoral c o m p e t i t i o n . T h e y also c o n t e n d at least m a r g i n a l l y with regard to c o n c e p t i o n s o f l i b e r t y and e q u a l i t y , m a j o r i t y rule and

minority

r i g h t s , r e s p o n s i v e n e s s and r e s p o n s i b i l i t y . T h u s s u m m a r i l y

observed,

these four perspectives m a y nevertheless provide some useful orient a t i o n s in t h e f o l l o w i n g m a t e r i a l .

III. THE PRACTICE OF POPULAR SOVEREIGNTY T h e p o p u l a r d i m e n s i o n s o f t h e A m e r i c a n C o n s t i t u t i o n are c o n s t i t u tional e m a n a t i o n s h i s t o r i c a l l y in t h e b a s i c o r g a n i z a t i o n o f t h e p a r t y s y s t e m deriving f r o m f e d e r a l i s m a n d t h e s e p a r a t i o n o f p o w e r s and in t h e c o n s t i t u t i o n a l p r o t e c t i o n s o f political a c t i v i t y . B u t

they

are

m o r e l a r g e l y c o n d i t i o n e d t o d a y b y f a c t o r s o f c u l t u r e and t e c h n o l o g y outside

the

Aristotelian

constitutional

framework.

While

constitutional

s e n s e , a n d w h i l e deeply i m p l i c a t e d

p o l i c y , t h e y are

subject

to s h a p i n g

themselves

in

in the s h a p i n g more

through

an of the

u n d e r s t a n d i n g s o f citizens and p r a c t i t i o n e r s t h a n b y d e l i b e r a t e m e a sures o f p o l i c y — c r i t i c a l as t h e l a t t e r m a y b e on t h e m a r g i n s . F r o m the c o m m e n t s o f the o r g a n i z i n g c o m m i t t e e f o r the B i c e n t e n nial C o n f e r e n c e I t a k e the p r a c t i c e o f " p o p u l a r s o v e r e i g n t y "

to b e

the central c o n c e r n o f C o m m i t t e e III. A n d , in its e x t r a g o v e r n m e n t a l d i m e n s i o n s , I'll c o n s i d e r the p a r t y s y s t e m t o g e t h e r w i t h the i n s t i t u tional c o n d i t i o n s o f political pluralism and p a r t i c i p a t i o n and t h e role o f e l e c t i o n s , o m i t t i n g f r o m t h e original p a p e r m a t e r i a l on t h e f o r m a tion o f public o p i n i o n ( i n c l u d i n g m a s s c o m m u n i c a t i o n s )

as well

as

e l a b o r a t i o n on the f u n c t i o n s a n d f u t u r e o f t h e p a r t y s y s t e m .

1. The Party System It is a c o m m o n p l a c e o f m o d e r n

political

analysis

t h a t parties

strictly critical in e f f e c t u a t i n g p o p u l a r s o v e r e i g n t y — t h a t v a r i a t i o n s in p a r t y s t r u c t u r e and

functions

are

institutional

tend c e n t r a l l y

(but

no

d o u b t not u l t i m a t e l y ) to d e t e r m i n e t h e o r e t i c a l issues discussed in the preceding

section. T h e y

legitimating

do

this, p r e s u m a b l y ,

opposition, organizing

government

by

regularizing

(perhaps

and

especially

A m e r i c a n g o v e r n m e n t , w i t h r e s p e c t to the s e p a r a t i o n o f p o w e r s ) , c o n solidating policy o p t i o n s f o r p o p u l a r c h o i c e while s t r u c t u r i n g public opinion,

providing

labels

and

at

least

rudimentary

organizational

interests to t h e end o f e l e c t o r a l a c c o u n t a b i l i t y , c o n t i n g e n t l y m i t i g a t i n g o l i g a r c h y and " m o b i l i z a t i o n o f b i a s " t h r o u g h e l e c t o r a l

competition,

and ( p e r h a p s ) b y e n c o u r a g i n g p a r t i c i p a t i o n t h r o u g h e l e c t o r a l o r g a n i zation. T h e r e is less a n a l y t i c e m p h a s i s on the c e n t r a l i t y o f p a r t y in d e m o c r a t i c s y s t e m s t o d a y t h a n t h e r e used to b e ; it is h a r d to say h o w m u c h this d i s p o s i t i o n reflects m o d e r n reality on the o n e h a n d or historical reanalysis on the o t h e r h a n d . In a n y c a s e , t h e r e has

always

b e e n a s t r o n g strain o f a n t i - p a r t y t h o u g h t in A m e r i c a n politics and

Shaping of Public Policy

173

society, beginning with the founders' animadversions on "faction" and continuing with concern about partisanship and "the public interest." 2 8 Naturally, some of this thinking has reflected official and factional dislike of opposition, but much of it appeals to views of liberty and justice discussed above. One result of this strain of thought has probably been the weakening of parties as agents of political equality; and, as I'll suggest presently, this strain of thought is strongly recrudescent today. Still, there are ample other reasons for the weakness of party in American politics. One way to explore the role of party is through analysis of several putative party functions in the polity. Such analysis appears in the original paper anent the structuring of public opinion, social integration and the aggregation of policy interests, political "mobilization" and the encouragement of participation, the regularization of opposition and competition, nomination of candidates for office organization of government, and formulation of policy. It must suffice to say here that the American party system holds a monopoly position today in none of these putative functions, liberally but (I think) realistically understood, and approximates monopoly only in nominations—where the direct primary has much mitigated party's original role. As in nominations so in other functions also the organizational role of party has been diminished considerably in the 20th century; and this seems provisionally true of the ideological role of party in public and governmental alignments. Institutional reforms, educational and cultural change, and the progressive complexity of public policy all probably figure in this historical decline of party. The contextual trends can be described as a progress from the conditions of a "traditional" to those of a "modern" party system, less traditionally organized and (perhaps) more rationally aligned. Arguably, such a "modern" party system will at last realize the designs of majoritarians for a more highly coherent, presumptively "responsible" two-party system; but my own argument in the original paper suggests, rather, that neither the organizational nor the ideological conditions of such a party system are cogent today. 29 Instead, the trend has been toward atrophy of party roles in communication, nomination, and organization of government across the separation of powers. Among many secular elements of this trend, recent developments in the presidential primary—abetted as I suppose by development of the electronic media—have perhaps been most influential, pulling presidency away from party in the large and apart from Congress in organization across the separation of powers. So the condition of integral, organized leadership by Presidents in the "responsible-party" formula may be deteriorating. The conditions of party consolidation in Congress might improve a little with party realignment; but party reorganization in Congress has hardly enhanced this prospect. Presidential independence through personal coalitions and preoccupation with the media and bureaucracy may be no less a problem for party responsibility than congressional frag-

174

Charles

E.

Gilbert

mentation or intractability. T h e shaping of public policy follows coalitions of interests, including party. T h e s e may be increasingly discrete from one sector of policy to another. T h e more policy there is the more interests it engages. T h i s might strengthen " p a r t y " against large interest groups; but it may also make it harder for party to hold together homogeneously. T h e reality of coalitions suggests a similarity in all modern democratic systems, whether two-party or multi-party. Some people infer from this similarity that which kind of party system a nation has matters little for the prospects of governmental responsibility, reresponsiveness, and effectiveness. Some remark a convergence of party systems in much of Western Europe, the United States, and the British Dominions from either direction toward a highly qualified two-partyism, or hybrid arrangement, functioning in any case through executive/bureaucratic/interest group coalitions. 3 0 Some think the multi-party variant preferable for the United S t a t e s — m o r e responsive to the tendencies of "postindustrial society," and in any case a logical continuation of institutional developments in the present party system and of the role of minor parties in the past. I won't conceal my own unreconstructed dislike of this idea. O n e needn't be an absolute majoritarian to conclude that responsibility in some balance of accountability, responsiveness and rationality is best served by a two-party system with sufficient discipline to play a considerable role in most of the functions just discussed. And " c o a l i t i o n " as an abstract noun too easily obscures, I think, the traditional distinction between coalitions formed prior to elections and those formed afterward, with its implications for governmental capacity and for obviating conflict. I mention this issue because of its bearing on issues for consideration in section V below. I suppose that certain formal, effectively constitutional changes would much promote multi-partyism in modern America. Scholars disagree strongly on this point; but I believe the evidence compelling that the roots of the American two-party tendency are primarily institutional, having to do with the prevalence of single-memberdistrict plurality elections, with the electoral college (which, with the exception of its aggregate majority requirements, is such an electoral system), and with the separation of powers. (I don't believe I should take space to argue this conclusion here.) Given the qualification "primarily institutional"—in recognition of the fact that institutions are not mechanical in effect but rather condition human aspirations and efforts—I think it problematical that any one of these institutions would suffice to preserve the two-party tendency in both branches under so-called postindustrial conditions. All of them together are not strictly sufficient for unalloyed two-partyism; and this, I think, has been a good thing in our history. Another, related prospect for the American party system is much discussed today. T h a t is its progressive " d e g e n e r a t i o n " or " d e c o m p o sition." 3 1 This forecast starts with the growing independence of voters; the declining institutional and communicative role of party

Shaping of Public Policy

175

with the access of education and the changing popular impact and institutional position of mass media; and the culture of "postindustrial s o c i e t y " with respect to technology, authority, commitment, accommodation, and community. In one systemic version of this prognosis the progressive regional liquidation of party competition after 1 8 7 6 and 1 8 9 6 , sustained by the Progressive reforms that followed, served the interests of industrial capitalism by suppressing relevant economic issues; and so eroded the party system organizationally and psychologically that its recovery in the Depression and N e w Deal realignment was incomplete. T h i s version doesn't logically rule out party restoration through a further, fundamental realignment; but it suggests that the vestiges of party in American practice and opinion are unlikely to sustain such a realignment. In another view, many of the presumptive functions of party in the past are redundant or performed by other institutions today: modern party structures and functions reflect the perceptions and values of postindustrial culture. T h e substantial atrophy o f party is less ineluctable in this perspective, but at any rate probable. In none of these prognoses is the elimination of some kind (perhaps the present kind) of " p a r t y " labels in elections implied; but the label would cover a low-proof, if nonetheless volatile, blend: realignments would occur with high frequency, or electoral (especially presidential) conditions would be continuously labile and unstable. T h e present popular distrust of politics and low turnout in elections would presumably continue, possibly punctuated by populistic movements. 3 2 Government would likely lack effective composite majorities based on prescriptive popular alignments. M o r e minor-party presidential (and perhaps congressional) campaigns would occur, abetted by recent campaign-finance legislation and imaginably by new election laws. Some minor-party continuities might develop, although many campaigns would be personal and episodic: absent effective institutionalization, the American demand for autonomous leadership would intensify. Conceivably some minor parties would in combination forestall electoral college majorities, forcing coalition politics to a new stage and enlarging the role of unpopular political bargaining. A likelier scenario, I suppose, relates the " m o d e r n " presidential primary process to the electoral college: in this prospect a popular candidate counted out in the convention pursues his campaign through the electoral college to Congress and the point of a "corrupt bargain." None of the prognoses has, so far as I know, gone on to speculate in detail about which so-called functions or contributions of the sometime American two-party system would be most seriously diminished or missed in this scenario. T h e distributive implications of such a new populist mode in the educational and occupational " c l a s s " pattern of postindustrial society are, I think, disturbing. Competition for equalization of political influence would probably be destabilizing and perversely effective in the absence of secular "conservative majorities." T h e popular accountability of public bureaucracy and thus

176

Charles E. Gilbert

of much public policy would probably be diminished. So would the " i n t e g r a t i v e " effects of the two-party system if realignment were more substantially perpetual; politics would be much less emollient. Governmental capacity for decision, and the apparent " r e s p o n s i b i l i t y " of policy, would presumably be reduced. So, then, would authority and the prospects of liberal democracy. I believe the foregoing prognoses should be taken seriously. But we are now in a period of some academic and popular skepticism about the contributions of party in the past (and especially in modern democracy), so not everyone will share this concern. Moreover, many scholars believe the prospect 1 have outlined uncertainly is likely to be avoided, indefinitely deferred, or even reversed by emergence of a " m o d e r n , responsible" party system. James Sundquist presents a strong case for the likelihood that the party alignment of circa 1 9 6 0 , appropriately modified, will be restored in the aftermath of issues of the 1 9 6 0 s orthogonal to the a l i g n m e n t . " O t h e r s think that alignment already much changed in its regional and class composition, if perhaps insufficiently so for party stability and capacity. 3 4 Still others think basic party realignment on regional, occupational, educational, religious, and maybe racial grounds possible or likely or perhaps necessary for restoration of the role of parties. Just now the imponderable claims of the young demographic bulge in the electorate are probably of critical significance for long-run consolidation of the party system. And there are others who perceive a trend toward more " r a t i o n a l , " issue-oriented voting in recent presidential elections suggesting that, with appropriate realignment (and perhaps the reorganization of Congress), a more consolidated, " r e s p o n s i b l e " twoparty system will result. 3 5 In this prospect party degeneration and voter alienation are far from inevitable; they are potentially signs of realignment and of demand for party reorganization. If the future of party is in the balance, then we have a critical issue of how to provide for a system of institutionalized national leadership and opposition that is electorally responsible. T h a t includes the issue whether a more consolidated, tightly aligned, and highly programmatic party system is either feasible or preferable to the party system of the recent past. In any case, no satisfactory substitute for party is in sight, or, I think, imaginable. W e cannot count on necessity to reconstitute party. So we should consider the conditions of party restoration. Foremost among those conditions today, I suggest, is some retreat from the current presidential-primary " s y s t e m . " O n e useful modification along this line might be Senator Walter Mondale's proposal for the regional scheduling of primaries. But I'll observe in the concluding section that a large role for the party convention and for congressional delegates in it seems to be desirable. And, lest the scenario mentioned above mislead, I'll also plead for continuation of the electoral college as a likely institutional support of two-partyism in the United States.

Shaping of Public Policy

177

2. The Role of Interest Groups and Associations The issues bearing on group and associational roles in sh.ping policy derive from issues of democratic theory mentioned in secton II. They have to do with elite, pluralist, electoral, and participatcry perspectives on national politics; with the articulation of liberty (or autonomy) with equality; and (ambiguously) with "responsble" versus "responsive" views of the public interest. In particular, tvo concerns mark current discussions of "pluralism" in the shaping (f American public policy. One is whether the "group-competition" system is too considerably elitist and exclusive. The other concern is vhether the shaping of policy is insufficiently "public"—i.e., whether he terms of group interaction with government, combined with concei-ably excessive devolution of policy to participating or autonomous private organizations, impairs governmental responsibility. There is no satisfactory way of settling these issues empirically. The participation of groups and private institutions in poicy shaping is simply too diverse and profuse; and there is no agreed nethodology for analyzing the interaction of group influence and g>vernmental authority, or even its results in, say, the federal budget. I don't mean that patterns of group importunity in government, or specfic decisionmaking procedures, can't be analyzed; and they have been analyzed extensively and intensively. I do mean that ultimately one consults one's general experience of American politics and one's normative conceptions of American democracy to evaluate the cortribution of pluralist arrangements to the shaping of policy. I think American intellectual perspectives on pluralisn have been changing recently, and that the system of organized aid corporate pluralism is increasingly seen as unduly elitist and exclusive. Popular and participatory concerns are more urgent today. So the perception of "undue" pluralism can create a kind of political maaise. At the same time, attempts to counter this in public policy throujh "distributive" and "constituent" policies (see section I. 10 abo/e)—i.e., by extending the pluralist subsystem—may ultimately seen a hair-ofthe-dog cure, warping and mortgaging the substance of pdicy through arrangements for the shaping of policy. 36 In any case, th» problem of organized pluralism in popular and participatory perceptions is, I think, one of both appearance and reality; and, as I've stggested, the reality is hard to evaluate. Pluralist interpretations of American politics usually have to do with cultural tendencies and "potential groups" and wth circles or institutions of leadership, as well as with the direct access of organized interests to government. Pluralist interpretations make caims for the political "functions" of the pluralist system much like those made for political parties; indeed, a crucial issue in pluralism concerns the balance of pluralist with popular (electoral) elements, as well as with elite and participatory elements. For the group-compeition system to serve its purported functions of informing policy, adjusting equal-

178

Challes E. Gilbert

ity with equity, modulating conflict through organization and overlapping membership, and mediating " m a s s s o c i e t y " several conditions have been stipulated by both pluralists and their critics. 3 7 Group membership should be prevalent, overlapping, and voluntary; group interests should be largely homogeneous and group organization basically ubiquitous; group leadership should be responsive or accountable; opportunity for governmental access should be general, equitable, and applicable to all sectors of policy; and group competion or countervailing power should therefore be effective. I think political scientists with no particular ideological axe to grind have increasingly challenged the foregoing assumptions empirically and in degree; and others contest them more categorically. For example, with respect to national politics, organizational membership is considerably less ubiquitous, more perfunctory, and less unprejudicially distributed than the assumptions require in any stringent sense. T h e extent to which overlapping group memberships tend to obviate or mitigate conflict is also uncertain, especially for the population at large, though the theory of "cross-cutting cleavages" with respect to more contingent cultural and economic alignments in relation to political-party identification, finds more empirical support. Such general consensus on liberal-democratic "rules of the g a m e " as might prompt emergent organizational resistance to their violation by group arrangements with government is empirically problematical. So, on close inspection and consideration of potential issues and concerns, are the essential homogeneity of many group interests and the responsiveness or accountability of many group leaders. T h e voluntary nature of interest-group membership is frequently qualified by sanctions or incentives designed to "internalize" the benefits of membership—e.g., the union shop, or professional accreditation. So the organization and political negotiation of groups appear to reflect the entrepreneurialism of leaders more than the demands of members — f r o m which follows a proclivity toward collusive or protective bargaining and the mutual recognition of spheres of influence.' 8 Such findings and inferences (some of them partial or primarily theoretical) tend to qualify the pluralist assumptions. But they are eclectic, as pluralism is disparate. Critics have tended to focus on economic policies—on subsidy, regulation (especially), or protection of certain large economic sectors and factors. Corporations, trade associations, labor unions, and farm organizations come prominently to mind. (Such issues as licensure, franchising, and contracting in state and local politics have seemed troublesome but less portentous.) There has been less concern about the trend of public devolution and subvention in the nonmarket sector that I have termed "private federalism" in section I. 3 9 No doubt whose ox is gored or whose axe is ground affects one's critical perspective. Four major, intermingled concerns about the place of organized pluralism in the shaping of policy may be identified. O n e is the problem of vested, preemptive privilege in the reciprocal pervasion of

Shaping of Public Policy

179

governmental and private purposes. 4 0 A second is the problem of internal group organization—of bureaucratic management and entrepreneurial autonomy. 4 1 A third is the "mobilization of bias" that group strategic position and elite symbolic leadership may contribute to public opinion and electoral politics. 42 And a fourth is the implications of "interest-group liberalism" and group bargaining for administrative responsibility in discretion and administrative rationality in decision. 43 Scholars tend to argue now that congressional lobbying is more protective than aggressive—that constituent pressures and legislators' electoral independence together are, with the prompting of party loyalty and professional staff, effective counterweights. 44 No doubt this depends on the nature of the legislative issue. But scholars tend to worry more today about administrative action— about regulatory "capture," agency "cooptation," bureaucratic decorum, and executive-branch coordination-—where institutional publicinterest norms are appropriately more stringent than in Congress, but also subject to more rigorous public expectations. Such tendencies and concerns suggest an establishmentarian style of policy shaping to populist critics. In response to such concerns populist critics turn first to other topics of this section—to party organization for "responsible" leadership and popular influence through elections, and to distributed participation. The latter approach, as was observed in section II, has lately been a trend of national policy in numerous functional fields. As a subject of public policy it provides, I think, some evidence that pluralism flourishes "innovatively" as well as conservatively. Another option, subject to constitutional limitations, is the promotion, protection, and regulation of opportunities for participation in associations and functional constituencies as an object of public policy. Constitutional law has increasingly sustained legislative regulations of group organization and participation. 45 Here (determinations of socially harmful association aside) the problem is to balance organizational capacity with accountability, and collective purpose with individual rights. American public policy is less pervasive in this field than is the case in democratic nations with more Hobbesian or Rousseauian residues; and it is more normally a state than a national concern. Most commonly in national policy it accompanies group or constituent privilege, as in agricultural or labor organization, and more recently in the social services sector. Few policy issues entail more delicate calibrations of autonomy with equality. And the effective reach of statutory or judicial regulation has its limits, whatever the scope of affectation with a public interest or of formal participatory rights. But this recondite field of policy should not be ignored in contemplation of the shaping of policy. Beside political organization and such regulation of interest-group organization as is politically and constitutionally feasible, two elements of the constitutional order should be considered seriously in concerns about imbalance or immobility in the pluralist demand-

180

Charles

E.

Gilbert

response system. These are the executive branch and the federal system. Anent the executive branch four perennial issues might be considered. One is closer congressional and/or judicial control of legislative delegation. Another is reconsideration of the independentcommission form of regulatory administration, together with selective "deregulation." A third is further "judicialization" of (primarily regulatory) administration through internal procedures, special appellate jurisdictions in the executive branch, or expansion of judicial review. And a fourth is personnel reform toward administrative consolidation and general management through something like the senior civil service proposal of twenty years ago. 4 6 These issues are more appropriately discussed in section V below. Here I'll merely observe that, together with proposals to reconstitute the party system toward enhancement of the "popular" demand-response system, they raise subtle issues of the meaning of "responsibility" in government and politics—issues adumbrated in section II above. Finally, one should consider the larger role for public planning projected tentatively in section II, whatever " p l a n n i n g " may mean. Inter alia, I suppose it means at least an expansion of "regulation" of particular market practices under general legislative standards to the selective direction and control of investment and development pursuant to changing national objectives. Then the question is how national objectives are to be determined; that is, in what balance of governmental and industrial, legislative and executive determination. 4 7 If " t h e prerequisites of more rational collective choice begin with the prerequisites of improving hierarchy and polyarchy"—i.e., public bureaucracy and organized electoral responsibility—then more than marginal alteration of regulatory administration (and probably of legislative delegation as well) is implied. 48 T h e common criticism that regulation might gain in " p l a n n i n g " capacity through more integral location in the executive branch might become more cogent; and highlevel civil service consolidation might become more pertinent in determining the balance of governmental and corporate or associational roles in planning. But ultimately, I suppose, this balance would depend on political organization toward legislative-executive " r e sponsibility," including such patterns of political leadership and public opinion as would tend to preclude domination of the parties by economic organizations and radical instability of national objectives. And that, I think, means something less than the thoroughgoing "responsible-party-government" program, which seems infeasible anyway. I'll return to these issues briefly in section IV. And I'll notice some issues of federalism in the following subsection. 3. Political and Civic Participation The access of large-scale organization and the perceived practice of "elite pluralism" have produced an interesting doctrinal reaction. In this reaction the state-society distinction of "liberal" and classical

Shaping of Public Policy

181

"popular-control" democracy has been challenged both in substantive policy and popular sovereignty—largely on the ground that it no longer consists with political reality. Participatory and popular theorists urge that the scope of policy be extended more broadly into industrial and professional organization so as to broaden participation (and vice versa), both functionally and electorally. 49 In its functional thrust such theory is a partial reformulation of pluralism (with antecedents in early 20th century British and European thinking). This approach may argue for functional supplementation of electoral participation, or it may go further toward displacement of majoritarian electoral control through proportional representation and functional participation. In the latter vein it tends to redefine traditional notions of political equality. In any case, it looks primarily to local government, functional quasi-governments, and regulated industrial self-government in some degree as the arenas of participation. While the first and third of these arenas have been the traditional foci of proposals for participation, the second has figured more prominently in federal public policy: here I have in mind such disparate instrumentalities as soil-conservation districts, communityaction agencies, health-systems agencies. To these random examples one might add the recent consultative and advisory requirements in block-grant programs, or in child development and compensatoryeducation grants. One might also add the modern proposals for "community control," neighborhood government, and the territorial dismemberment of large cities. 50 Conceivably these are straws in a wind listing toward an extended conception of federalism as "distributed self-government." 51 I mentioned above that issues of federalism figure in concerns about pluralism; and this seems an appropriate place at which to notice them. They have loosely to do with perspectives I have termed formalist and pragmatist. One issue concerns the erosion of generalpurpose, broadly responsible local government under modern conditions. If there is a "classical" democratic theory, then one of its antipathies in early utilitarianism was toward separate functional jurisdictions, noncomparable and thus electorally unaccountable in politics. 52 Special-purpose public authorities and subsidized non-profit corporations as governmental surrogates for certain "public" functions, as well as "marble-cake" federalism with its functional bureaucratic articulation, are modern analogues of those concerns about oligarchies and electoral accountability. Such tendencies are ancient and basically irreversible in American politics. 53 Pure jurisdictional homogeneity isn't feasible; and federal-grant requirements are designed about as frequently to contain local "oligarchies" (including political organizations) as to sustain them. Nevertheless, I shall suggest three considerations as critical for "distributed self-government" in the federal system. The first is the potentiality of general-purpose local government for political responsibility and participation; its functional dilution or gratuitous ter-

182

Charles

E.

Gilbert

ritorial e n l a r g e m e n t is u n l i k e l y , I think, to s e r v e " p o p u l a r s o v e r e i g n t y . " T h e s e c o n d consideration is that s t r e n g t h e n i n g of the states in our f e d e r a l m a c h i n e r y can contribute to b o t h local and national capacities r e s p e c t i v e l y t h r o u g h constitutional responsibility f o r local action and p r u d e n t decentralization of national p o l i c y . 5 4 T h i s is to s u g g e s t , f i n a l l y , that f e d e r a l i s m is f u n c t i o n a l f o r m o d e r n constitutional d e m o c r a c y as a s y s t e m of public d e v o l u t i o n s and a p p e a l s — f o r relieving national o v e r l o a d and controlling local i m p r o b i t y or prejudice. It will not be a p p r o p r i a t e to p u r s u e these considerations f u r t h e r . I mention them b e c a u s e issues of centralization and decentralization in the s h a p i n g and i m p l e m e n t a t i o n of policy a r e apt to concern us in discussion. In this connection it seems to m e that, w h a t e v e r the p r o spects f o r i n d i v i d u a l participation and vocational association, civic participation n e c e s s a r i l y d e p e n d s on definitions of locality and c o m m u n i t y or of f u n c t i o n a l responsibility. T h e p r o b l e m is to o r g a n i z e local g o v e r n m e n t to balance c o m m u n i t y and d i v e r s i t y , f o r m a l i t y and r e s p o n s i v e n e s s , f u n c t i o n a l g e n e r a l i t y and political scale, a d m i n i s t r a tive capacity and accountability, fiscal responsibility and distributive e q u i t y — s o as to e n c o u r a g e participation w h i l e protecting rights and p r o m o t i n g m a n a g e r i a l capacities. T h e s e b a l a n c e s will seem b a n a l i t i e s ; but I think they s u p p o r t s u g g e s t i o n s f o r attention to f e d e r a l i s m in the preceding p a r a g r a p h . T h a t is, f r o m the s t a n d p o i n t of participation, they i m p l y local g o v e r n m e n t s subject to r e s p o n s i b l e participation b y o r d i n a r y residents, not s i m p l y b y c o s m o p o l i t a n p r o f e s s i o n a l s ; a n d they i m p l y state a r r a n g e m e n t s f o r protecting rights a g a i n s t local oligarchies or m a j o r i t a r i a n a g g r a n d i z e m e n t s . W h i l e the f o r e g o i n g conception of the f e d e r a l s y s t e m is no d o u b t Utopian, accessible local g o v e r n m e n t seems critical f o r civic participation. A n d civic participation seems p r o s p e c t i v e l y — i n the traditional, liberal v i e w — m o r e consequential than v o c a t i o n a l f o r m s of participation f o r i n d i v i d u a l d e v e l o p m e n t of political skills and f o r the s h a p i n g of public policy. B u t neither a p p r o a c h to participation is as r e l e v a n t to national p o l i c y — o r to the d e m a n d s of m a n a g e m e n t and challenges of large-scale p l u r a l i s m — a s participation relating to elections, especially voting b y " o r d i n a r y " citizens. T h i s seems the m o r e so in the light of recent research s u g g e s t i o n s that, in the context of A m e r i c a n political o r g a n i z a t i o n and i d e o l o g y , participation tends to w o r k p e r v e r s e l y f r o m the standpoint of equalization of influence, r e i n f o r c i n g socio-economic inequalities t h r o u g h its association w i t h social status. 5 5 T h i s i n f e r e n c e , coupled w i t h the w e l l - d o c u m e n t e d e f f e c t s of higher-level education in p r o m o t i n g civic competence a n d participation, and w i t h the speculative tendencies t o w a r d a social-class s y s t e m rather s h a r p l y d e m a r c a t e d b y college education, a n d w i t h the p r o b l e m s of large-scale organization in A m e r i c a n p l u r a l i s m , seems r e a s o n f o r concern about h o w to reduce disparities of i n f l u e n c e in A m e r i c a n politics and policy. P r o f e s s i o n a l , " p u b l i c - i n t e r e s t " participation h a r d l y serves this concern, I s u p p o s e , b y c o m p a r i s o n w i t h m o r e general e n g a g e m e n t of the population

S h a p i n g of Public P o l i c y

183

through partisan and electoral organization in ways to be considered now. 4. The Place of Elections in Shaping Policy Accepting the centrality of elections for "popular sovereignty/' and of party for electoral effectiveness, I'll raise summarily now some complicating issues. Whatever the claims of incumbents, elections are rarely "mandates." While majoritarian convention might conceivably lend elections this character, the ambiguities of party alignment and of political communications (noticed below) leave large margins of official discretion in reality. Voting is probably more often retrospective than prospective. There is no doubt a certain rationality in this perspective: voters need not invest in comprehensive, high-level ideologies to evaluate policy in the light of their own condition; governmental incumbents nevertheless are circumscribed anticipatorily. Still, there is persuasive evidence that the general, programmatic commitments of parties in presidential elections are intelligible and are characteristically honored by incumbents—at least in legislative effort, if not effectively. 56 Through secular alignments primarily, and in some respects more immediately, elections tend to settle basic issues—to remove them from controversy and to establish their resolutions as premises of policy. Subject to these premises, or a "moving consensus," many presidential elections are contested primarily over what have been termed "valence issues"—i.e., which candidate or party or program will better serve an emergent concern; not which party's conception of distributive justice should prevail.57 There is also evidence of congruence between majority opinion in constituencies and the behavior of legislators, though it is reasonably clear that legislative discretion varies with the characteristics of issues and that there is commonly room for maneuver or for assertion of leadership. 58 Yet off-year congressional elections have been plausibly interpreted as referenda on the conduct of national administrations. 59 In these degrees American national elections tend to be meaningful and effective, though our ability to characterize their influence (or their effects on the distribution of influence) more specifically is limited. For example, it appears that tight electoral competition frequently leverages organized groups—that, regarding equalization of influence, popular (electoral) democracy augments pluralist democracy, though it probably tends to redress political effects of largescale organizations. But these permutations have yet to be worked through in democratic theory. Moreover, the logic of electoral coalitions suggests that even in less secular and consensual, more majoritarian systems than the American, there are limits to the electoral pursuit of distributive justice: the claims of small or (in particular) unpopular minorities are still likely to be discounted. Their electoral inclusion is likely to depend on legal protections or direct action within " a scheme of ordered liberty" and on popular allegiance to constitutional values.

184

Charles E. Gilbert

Within modern democratic ideologies, both totalitarian and liberal, popular elections are alleged to foster regime allegiance and stability through civic participation and responsibility. 60 However that may be, the evidence suggests that popular sovereignty in elections is more a matter of influence in government than of direct power over government—a matter of anticipatory circumscription: elections are contextual for the shaping of policy. 61 But this role seems more considerable today than it was in early constitutional expectation: the balance of electoral demand and electoral protection has altered with institutional and ideological evolution, especially in presidential elections. This is a way of saying that "traditional" party organization and alignments no longer control the electoral process so effectively by comparison with other institutions and determinants of opinion and also that electoral demand may tend to outrun electoral support. Some observers believe a more "modern" and "responsible" American party system is now evolving to relieve these tendencies; but this claim raises serious issues of both prediction and evaluation. 5. A Reprise on Party Insofar as partialities of large-scale pluralism, particularities of local participation, ambiguities of political communication, insufficiencies of voter information and sophistication, or limits of electoral accountability pose serious democratic problems, various incremental correctives are theoretically available with respect, e.g., to governmental organization, restraint of legislative delegation, public-personnel administration, reforms of federalism, educational improvement (dubiously), and (perhaps) public-service television. But reflection on such remedies suggests that, while they might be helpful, they also have practical and democratic shortcomings. They don't articulate the electorate with the shaping of policy, nor do they concert or constrain shapers of policy within the statutory and structural margins they provide. In uncertain degree they depend upon political organization, or party, for effective implementation. If the putative functions of party seem easily overstated in the light of other cultural and institutional conditions, this is partly, I suppose, because we tend to take party for granted. But the decline of party, whether or not it turns out to be temporary, now finds ample documentation. 62 Like the phenomenon of party the decline is a matter of both electoral organization and popular alignments. These overlap, though they are distinguishable. In theory a stronger leadership structure (either tangible or ideological) might enable party to function effectively with weaker public identifications, or emergent popular ideologies and alignments on issues might help strengthen party organization; but in practice these factors are probably interdependent. So the question is whether some progressive restoration of party is in sight. As to organization, voluntary and governmental policies have long been tending to weaken party control of nominations and campaigns —especially in recent years with respect to the presidency. The new

Shaping of Public Policy

185

Democratic Party rules tend to render the Party more permeable than ever by other organized groups. 63 The campaign-finance legislation of 1974 tends to make presidential primary elections more partydestabilizing sweepstakes; and, in extending national regulation further into the central functions of party, it makes party a more public entity subject not only to congressional majorities and federal courts but also to the usual cumulative tendencies of regulation. 64 So public policy may tend to weaken party institutionally, appropriating party to the "public interest" and eroding the liberal state-society distinction that party has arguably both bridged and buttressed. As to popular alignments, protagonists of a more "responsible" party system are discovering grounds for optimism in the recurrence of "issue voting" coupled with a rise of "issue consistency," or more nearly ideological voting behavior. Yet this behavior (if it is "behavior") seems also to be associated particularly with voter independence of party; and there are grounds for doubt that traditional party identifications will soon be restored. 65 Perhaps more consequentially, one may question whether any tight popular alignment, either in mass attitudes or interest-group positions, is now in sight or even conceivable that can reasonably comprehend the density, extensity, complexity, and technicality of public policy today. But the logic of future party alignments is too large a subject for consideration here. Party alignments will presumably settle themselves without help from the Bicentennial Conference on the U.S. Constitution. But party organization can probably make a difference in the character of alignments and in their influence on the shaping of policy. So, without opting for the "responsible-party-government" program, there seems good reason to try to strengthen party organization for policy and elections. I'll comment briefly on policy in section V. As to elections, I'll suggest again that attention to presidential nominating procedures is in order, since they are at the heart of party organization, which is arguably impaired by the recent rules and legislation mentioned above. In this spring of 1976 we might well ask whether the role of presidential primary elections has grown beyond compatibility with adequate party organization. IV. THE SHAPING OF POLICY BY PUBLIC OFFICIALS Whatever the requirements of "popular sovereignty" for extragovernmental institutions and public behavior, I suppose these culminate constitutionally in the ultimate shaping of policy by elected officials. How definitive and pervasive one thinks this shaping should be will vary with one's position on issues indicated, but not explicated, in section II. How far one thinks such shaping may feasibly go is in part, though not entirely, another question—one of institutional capabilities and structure. Answers to that question are eternally problematical, but some aspects of it are considered in this section under four headings: the congressional role; the presidential role; problems of administrative responsibility; and prospects of constitutional reform.

186

Charles E. Gilbert

1. Congress In this c e n t u r y " t h e decline of legislatures" h a s become a familiar lament. In the W e s t e r n world p a r t y , lobby, executive a u t h o r i t y , b u reaucracy, and the complexity or exigency of policy have all been blamed f o r legislative " d e c l i n e . " A n d decline implies not only alteration of constitutional balance, b u t of b o t h responsibility a n d r e s p o n siveness in the s h a p i n g of policy. C o n g r e s s h a s not been t h o u g h t e x e m p t f r o m these tendencies; yet C o n g r e s s h a s remained—if in a dispersive rather than a collective or p a r l i a m e n t a r y s e n s e — t h e s t r o n g est W e s t e r n legislature. A critical issue f o r s t u d e n t s of C o n g r e s s is t h a t of the extent to which its s t r e n g t h is constitutionally assured by the separation of powers or d e p e n d s particularly today on the 20th c e n t u r y pattern of congressional decentralization of p o w e r and resistance to p a r t y discipline. T h e r e is a beginning of wisdom in the perception that congressional p e r f o r m a n c e isn't u n i f o r m . T h i s is suggested by T h e o d o r e Lowi's distinction (see section I) b e t w e e n distributive, redistributive, regulatory, and constituent sectors of policy. 6 6 It a p p e a r s in preliminary historical examination that C o n g r e s s h a s p r o b a b l y been more effective (compared with o t h e r factors, g o v e r n m e n t a l a n d n o n g o v e r n mental) in some types of policy t h a n in o t h e r s ; a n d moreover, that C o n g r e s s tends to f u n c t i o n collectively or parliamentarily in some types a n d f r a g m e n t a r i l y in o t h e r types. T h u s C o n g r e s s p r o b a b l y cannot devise an energy policy, b u t it can exercise initiative in environmental regulation; it p r o b a b l y c a n n o t f u n c t i o n i n d e p e n d e n t l y f o r global fiscal or m o n e t a r y m a n a g e m e n t , b u t it can d r a f t tax legislation in copious detail. Congressional action takes different f o r m s in d i f f e r e n t fields. In particular, Lowi argues, C o n g r e s s tends to legislate m o s t a u t o n o m o u s l y and parliamentarily with respect to regulation. Yet it is w o r t h observing that this is the policy sector that gives rise to m o s t concern a b o u t uncontrolled legislative delegation and administrative a g g r a n d i z e m e n t : it seems to be a sector w h e r e C o n g r e s s is politically able to respond to p o p u l a r concern essentially t h r o u g h identification of a " p r o b l e m , " adoption of either a categorical or vague (but in any case c o m m o d i o u s ) s t a t u t o r y s t a n d a r d , and e s t a b l i s h m e n t of an administrative agency or judicial jurisdiction to m a k e t h e necessary a d j u s t m e n t s . W h e r e more particular or perspicuous legislation is required the congressional process tends to be more decentralized, or m o r e d e p e n d e n t on presidential iniative. A f u r t h e r complication is the m u l t i f u n c t i o n a l i t y of C o n g r e s s as compared with most legislatures. 6 7 T h e f u n c t i o n s of C o n g r e s s have been endlessly and variously listed, b u t I shall i d e n t i f y f o u r : legislation; control of a d m i n i s t r a t i o n ; inquiry; and constituent service. In a strict sense, the c o n f u s i o n of the f u n c t i o n s figures in t h e r e p r e s e n t a tive role of Congress as the " r e p u b l i c a n , " nonplebiscitary element of the Constitution. T h i s is so despite the efforts of institutional purists to discover constitutional distinctions a m o n g the f u n c t i o n s . T h u s some critics argue t h a t the job of C o n g r e s s is to legislate

Shaping of Public Policy

187

generally, perspicuously, and parliamentarily; and that Congress should better organize itself to this end. In this view Congress is perceived as less representative of national interests than the President; Congress increasingly lacks legitimacy and legislative capacity. Yet the study of legislative etiology suggests that congressional initiative in policy is more common than appears to be the case in politics considered presidentially; the representative and technical roles of Congress in legislative revision are certainly considerable. 68 Arguably, some of our least successful public programs in recent years have resulted from exigent presidential leadership through large congressional majorities, when the representative role of Congress was attenuated or when Congress abdicated excessively in fields of conventional executive responsibility. Critics who doubt the capacity of Congress to legislate in a sufficiently disciplined way suggest that Congress emphasize instead the oversight of administration in more nearly plenary style: in this residual manner Congress could contribute to policy and accountability through review of performance, statutory revision, and financial provision. 69 Such critics also tend to argue that congressional direction and control of administration are at present too pervasive, dispersive, particular, and irregular; and they have a point. Congress has increasingly relied on substantive understandings attaching to appropriations and "come-into-agreement" provisions to extend control of administration. 70 On the other hand, the decentralization and particularity of congressional oversight as well as its merger with legislative delegation and with statutory specification of administrative detail may in some degree be conditions of congressional effectiveness in this field. British and European parliamentary comparisons do not provide effective models of legislative control of administration; and the political incentives for congressmen and senators to concentrate on general oversight through plenary methods are not considerable. In this sphere congressional effectiveness almost certainly depends on specialization and decentralization—which is not to argue that congressional delegation of outright legislative determinations to committees is legitimate. Such methods of congressional direction and control of administration are constitutionally problematical (so is the legislative veto as a plenary method); but in any case this congressional function is increasingly critical for representative government and presumptively worth some price in rationality. Controversy over the investigative role of Congress relates to oversight of administration where these are combined and to legislation when it appears not to serve that end directly. Its vindictive, privacy-violating, publicity-seeking abuses must be conceded with its uses for fact-finding, opinion sifting, issue definition, and public instruction. As grand inquest of the nation, Congress is sometimes best able to counter presidential prerogative and virtual representation. In oversight of administration congressional investigations are sometimes simply tools of constituent service; and in this sector some congressional reformers have urged a more impartial surrogate, such

188

Charles

E.

Gilbert

as an ombudsman. 7 1 In general the constituent-service function of Congress is subject to criticism for adulterating "policy," perverting bureaucracy, preserving incumbency, and abridging equity. But the potentialities of this function for mitigating bureaucratic inequities are also strong; and its contribution to ordinary citizens' sense of effective representation in the modern administrative state should not be ignored. 7 2 These issues of congressional function are perdurable. So, in a general way, are issues of congressional structure, which are complicated now, however, by the fact of rapid change in Congress. Since World W a r II (to pursue a long tradition no further) Congress has been continuously criticized by reformers for structural obscurantism and particularism encouraging irrational compromise. 7 3 Recommending the consolidation of Congress through "responsible" parties, the critics have usually looked to the President for leadership. Conversely, congressional protagonists have commonly argued against the " p a r t y - g o v e r n m e n t " doctrine on the ground that its realization would relegate Congress to a subordinate role. W h a t critics and reformers o f t e n thought perversely unresponsive in Congress was accepted by some scholars as a system of institutionalized "responsibility" balancing independence of the presidency with insulation f r o m importunate constituency pressures through a decentralized network of leadership resting on incentives and sanctions for congressional careers characterized by longevity in districts where electoral competition was more contingent than regular. If the machinery of Congress was apparently partisan in this system, policy alignments were more ambiguously so, leaving ample room for individual judgment and a d j u s t m e n t to constituency differences. However evaluated, in the House of Representatives this system was electorally conditioned by regional legacies dating from 1876, 1896, and the New Deal; over most of this period the advantages of incumbency increased and the electoral discretion of members on most issues seemed considerable. By the 1970s, however, congressional reformers were having their day. From about 1958 electoral fortune several times favored liberal Democrats, w h o favored congressional reform and organized to bring it about. A n d the balance of legislative-executive relations after 1964 seems to have convinced members of both parties in Congress that they would benefit from some congressional reorganization. So, as a result of such measures in 1972, 1974, and 1975, we are witnessing a test of two common propositions about Congress. O n e is that party alignments and ideologies in Congress are not sufficiently defined or stable enough to sustain strong leadership based on the party caucus. The other is that, since the institutional strengths of Congress rest necessarily on decentralized and segmental procedures, congressional attempts to grapple integrally with national priorities or with policy in the large are likely to cripple Congress. These are critical propositions, but there is no space for their analysis here. N o one can know for certain whether they are sound

Shaping of Public Policy

189

in general, or just conditionally in degree, or even wrong in general. If they are right, then Congress may lose ground to the President again. Under the altered party balance and seniority distribution that now obtain in Congress, together with the current stress on legislative productivity, the evidence will accumulate; and in the meantime the standard academic literature on Congress will have become anachronistic. There remains room for brief comment on three aspects of Congress; committee structure, staffing, and representation. It is perhaps the committee structure and the substantial autonomy of certain (primarily financial) committees that has exercised congressional critics most. This structure of specialization is arguably the source of congressional strength; but, coupled with the seniority rule and secure jurisdictions, it has also during this century been the basis of the dispersed congressional-leadership network. 74 The recent erosion of the seniority rule and redistribution of committee jurisdictions complement the current essay at caucus-based leadership in the House of Representatives. Altogether these developments tend to curb the independence and legislative influence of committees; yet committee performance is so central to congressional careers that strong pressure has developed for more subcommittees and jurisdictional rivalries among committees have increased. Congress has to specialize; morselization of policy seems essential to congressional effectiveness in shaping legislation. And there is probably no single optimal scheme of standing-committee jurisdictions, though Congress may be well advised to seek to cross-cut executive branch organization in this respect. And it can seek more comprehensive purviews through select and non-legislative committees, which, after the pattern of the Joint Economic Committee, might function effectively for several aspects of policy. A striking departure in congressional committee structure has been the enlargement of staff; indeed, the doctrine of "salvation through staff" now applies to political direction and control of government in both branches. So do its practical problems in the theology of popular sovereignty and responsible government: delegata postestas non potest delegari; and too many cooks spoil the broth. The issue here is whether staff proliferation is reaching the point where the question arises seriously, with respect to legislative multifunctionality; is Congress attempting to do too much? Probably the question is less applicable so far to the shaping of policy in the large, where congressional responsibility functions necessarily through negotiation and voting by principals in the end, than it is to intervention with and investigation of administrative implementation of policy, where staffers can navigate independently. 75 In such congressional essays at comprehensiveness as the new budget committees or technology assessment ample professional staffing seems essential. But anyone comparing the Congress of today with that of a decade ago can see the signs of a growth industry and the danger that this form of "institutionalization" is accentuating dispersion and diluting repre-

190

Charles £.

Gilbert

sentation. S o greater emphasis on the pattern of institutionalization manifest in the General Accounting Office and the Congressional Research Service may be worth considering. As to representation, the current emphases on comprehensive attention to priorities and on legislative accomplishment raise the prospect of alteration—marginally or perhaps more drastically—of the institutionalized congressional pattern that developed in this century, primarily in the House of Representatives. T h a t pattern emphasized multifunctionality. In legislative and electoral organization it emphasized insulating properties (seniority, protection of incumbency, distributed leadership sanctions and incentives) to balance necessities o f direct responsiveness. 1 6 This pattern gave Congress a dilatory and particularistic cast and probably favored the influence of "private i n t e r e s t " over " p u b l i c - i n t e r e s t " groups. But it apparently fostered congressional response to aggregate national opinion as this emerged in congressional constituencies and permitted selective congressional initiatives; and it was consistent with the notion that there was no single (presumptively presidential) majority in the nation, but rather competing or complementary majorities attending to different interests and visions. 7 7 For most of the 20th century Congress has served a " c o n s e r v a t i v e " function in this analysis; and it may be now that congressional and presidential roles will be reversed. O r the analysis may no longer be valid, in which case Congress may function less well in protecting particular interests and as a balancewheel in our constitutional machinery. 2. T h e Presidency I cannot avoid the standard observation that the presidential role, like that of Congress, is multifarious—though I shall neglect its specification here. T h e question arises whether the several presidential roles are also integral, mutually enhancing roles. If they are, then they are also apt to be reciprocally deleterious from time to time. There is strength in the combination of formal headship and political leadership; but there is also a danger to legitimacy since, save for generalized allegiance to constitutional values, so much combined responsibility rides on the President personally. Proposals for alteration of the separation of powers can hardly ignore the American problem of fusion of "dignified" and "efficient" functions. 7 8 This problem becomes the more considerable as the presidency cuts loose from party organization progressively through the reciprocal effects of mass communications, popular nominating procedures, and deterioration of party structure. In any case, the presidential constituency tends to be " v i r t u a l " and vague; with respect to issues more nearly susceptible of direct accountability it is highly heterogeneous. Presidential representation thus has plebiscitarian elements and (depending on election-finance laws) plutocratic elements as well. Popular support of presidential performance can be mercurial—subject to precipitous decline and hard to recoup save through election campaigns or spectacular events. T h e dynamics of opinion formation

Shaping of Public Policy

191

figure in this vulnerability, but so do the functional problems of the presidency. With respect to the executive branch the putative tools of the presidency for shaping and implementing policy have had increasingly to reckon with intractibility. Budgetary discretion and control, reorganizational authority, and personnel management are circumscribed by the economy, the Congress, and the conventions of civil service. The presidency is confined to selective initiatives in legislation and selective interventions in administration. The President as energetic general manager of the executive branch is not, I think, a workable conception. 79 Within the ambiguity of presidential strength and weakness the question naturally arises whether the office can be "institutionalized" to the end of "responsibility" in its several significations. Short of constitutional amendment (to be considered below), the chief possibilities, I think, are three. One is progressive reorganization of the party system toward the "responsible" model in which presidential leadership would be more subject to partisan loyalties, collaboration, inhibition, and opposition. But party responsibility implies party organization—more than mere ideological agreement. In particular, the machinery of presidential nomination and campaigning would need reinstitutionalization, extending perhaps to congressional politics as well, and reversing current developments. A second possibility, long advocated, looks to several objectives: stabilizing of executive-legislative relations, consolidation of legislative leadership, and collégial supplementation of the presidency. It takes the form of a legislative-executive council engaging the effective leadership of both branches in the shaping of policy. 80 The congressional membership might be bipartisan, or it might not; the council might de facto expand the Cabinet to congressional positions without portfolio, or legislative and managerial functions might (insofar as feasible) be distinguished. In one version or another this proposal emphasizes the stabilization, depersonalization, and containment of the presidency, or the integration and augmentation of general policy leadership in both branches. A final possibility is movement toward a better balance of consolidation and devolution in the executive branch. This implies some retrenchment of presidential attempts to centralize direction and control in the White House. The managerial and collégial responsibilities of cabinet officers would be emphasized ; the machinery of central administration (e.g., O M B ) would be further institutionalized; perhaps a senior civil service would be established. The limits of presidential ability to manage the executive branch would be acknowledged; regularization of management would be emphasized within these limits; the old reorganization formula of executive branch consolidation in larger departments might be revised to emphasize smaller and more homogeneous departments even if this means that more secretaries must report to the President. These three lines of development are logically compatible, I think.

192

Charles

E. Gilbert

I also think the dispersive tendencies of American politics and administration are unlikely to favor the first and third developments alone or in combination; some governmental fulcrum or nexus is probably essential to either or both. Then the question is whether the second proposal would, in effect, supply enough institutional leadership and conventional leverage to serve the purpose. I suppose the best way to find out is to try it. The trouble is that presidential necessities seem to run the other way, and presidential incentives almost certainly do. The modern presidency seems mortgaged to personal ambitions, popular expectations, and functional contradictions beyond those operable in large-scale organizations generally, so its institutionalization is peculiarly difficult. 3. The Problems of Administrative Responsibility These are, as already indicated, increasingly central considerations in popular sovereignty. Indeed, modern issues of bureaucratic rule, discretion, accountability, rationality, responsiveness, efficiency, and effectiveness are among the central issues of modern democratic theory in any practical sense. 81 Here the concerns of Committee III merge most integrally with those of Committee II. I'll identify these issues in national administration under three heads: constitutional, internal, and external. The constitutional avenues of responsibility are those pertaining to President, Congress, and the courts distinctly and relatively in direction and control of administration. As to the presidency, can the chief executive either lead or manage effectively the shaping and implementation of policy? Could he do so even if Congress were not so prominently in the picture? Has the trend toward White House centralization impaired departmental management? With the enlargement of the presidency, has staff "passion for anonymity" been coupled unduly with autonomy and authority? Are superdepartments or "czars" really superior to a larger number of more integrated departments? To raise these questions is to indicate concerns and at least a qualified perspective on the answer. If the presidential role in shaping policy is necessarily other than immediately and comprehensively managerial, then this implies more reliance on executive office, Cabinet, and departmental management assisted by restoration of presidential reorganization authority (subject to congressional veto), some consolidation of the higher civil service, and selective applications of managerial technique. As to the last of these "the triumph of technique over purpose" is a constant embarrassment of governmental management—one about as likely to emerge in modern policy analysis as in classical administrative methods, as can be seen in recent American experience. 82 The role of Congress in direction and control of administration has been a staple problem in the American separation of powers. But its principal aspects—collective or "parliamentary" versus dispersive or fragmentary congressional oversight of administration, and the desire of presidential protagonists or bureaucratic rationalists that

Shaping of Public Policy

193

Congress retreat from its pervasive administration intervention in many sectors—are basically intractable. Congress relates to administration as it does largely because Congress is organized and electorally conditioned as it is. Congressional priorities may change with imperatives of policy: the new budget procedures, general standardsetting legislation, and more use of the legislative veto (in despite of constitutional purists) are consolidating possibilities. But Congress will typically relate to administration through its committees, where its strength resides; and the more critical issue has to do with "institutionalization" of assistance in legislative oversight through, e.g., the General Accounting Office and Congressional Research Service. While the judicial role in administrative responsibility is too technical for consideration here, it relates to a couple of large issues worth mentioning: the scope of legislative delegation, and the organization of regulatory administration. As to the latter, all three branches might make progress with the regulatory "fourth b r a n c h " together (short of its dismemberment and merger) through provision for presidential directives on general policy, investigation, or jurisdiction subject to judicial review and legislative veto. 83 And as to delegation, congressional provision for more extensive agency rulemaking and policy formulation might help tighten judicial review for consistency of decision, besides which the time may be ripe for more judicial pressure on legislative delegations independently through some sophisticated revival of the dormant non-delegation doctrine. 84 The internal modes of administrative responsibility pose issues in civil service organization and regulation. The American public service is much less a guardian class or autonomous elite, much more a system of social and functional representation, than are most modern national bureaucracies. 85 These attributes are " i n the wood"; they cannot be altered more than marginally with regard to the shaping of policy. Within these traditional limits two alternatives are worth considering anent the higher public service: one is its consolidation as a more corporate career service; the other is extension of presidential appointments to lower levels. 86 O f these I favor the former; but in either case the practical intractability arising from programmatic pluralism and the molecular tenacity of American bureaus, along with resistance from civil service unions, will be fundamentally troublesome. Among the external dimensions of administrative responsibility I'll identify contracting, publicity, clientele participation, and intergovernmental relations for brief discussion. In contracting, especially for research, development, advice, and evaluation, the problem of administrative responsibility is to retain it unimpaired—that is, to maintain public capacities for definition, evaluation, and decision. This is no trivial problem today, but I need not review it here. 87 Administrative publicity (and secrecy) pose similarly well-documented issues—publicity as a form of institutional or programmatic advertising and constituency cultivation, or as damaging persons or properties through adverse publicity attending regulation; secrecy in

194

Charles

£.

Gilbert

the competing requirements of " s u n s h i n e , " journalism, public information, and equalization of interest-group access, or of national security, personal and corporate confidentiality, the encouragement of candor in administrative judgments, and of prudential autonomy in administrative decisions. 88 Such considerations figure ambiguously in the statutes on publicity and disclosure. 8 9 Insofar as publicity is influence and knowledge is power, the regulation of secrecy and publicity will always be critical in the shaping of policy. By clientele participation, I mean arrangements more integral to policy shaping than ordinary negotiation with interest groups. These may range from advice to devolution; from formal to informal. T h e y may be justified b y the shortcomings of ultimate accountability and the need for something more immediate; b y pragmatic or indigenous contributions to administrative information or to client motivation through participation; b y the necessity of winning consent; as programmatic " t a r g e t i n g " and constituency building; as appropriately modulating bureaucratic uniformity; or as civil development through popular involvement. T h e problems of public purpose and governmental responsibility arise over the whole range from advice to devolution, and especially as arrangements depart from formality. In the shaping of policy and in democratic theory functional and electoral responsibility (or participation) are potentially at odds in distribution of the " n e w property" and regulation of the old. How shall we balance the claims of decentralization and participation with administrative responsibility? 9 0 Finally, I'll recur to federalism as an external dimension of administrative responsibility, limiting its consideration to a couple of aspects of federal grants-in-aid. O n e has to do with their regulative effects (incidental or deliberate) on the structure and functions of "distributed self-government." I have in mind not so much the implicit conditioning of priorities through matching provisions as the more thoroughgoing "constituent" policies of restructuring state and local government through professionalization, regionalization, functional particularization, clientele targeting, and participative or consultative requirements. This is simply to suggest again that there is an issue of the future of general-purpose, electorally responsible jurisdictions in the federal system implicit in the programmatic and interest-group pluralism of national policy. A second issue concerns the organization and balance of "fiscal federalism." T h e organizational possibilities range from narrow grant categories through functional or general block grants to true revenue sharing. W e can probably expect this pattern to oscillate more or less as it has in the past. Programmatic categories have tended to reflect congressional concern for accountability as well as congressional response to group importunity. Project grants have favored federal administrative initiatives as well as "private federalism." T h e y have also favored functional, territorial, and redistributive " t a r g e t i n g . " Both categorical and project grants build constituencies. Functional block grants (with or without matching provisions or copious regulations)

Shaping of Public Policy

195

are a means of broadening national priorities and, especially, the federal position of the states. So-called general revenue sharing is likely, I think, to facilitate inflationary response to public-employee unions, though it is also a method of redressing fiscal disparities in the nation and its metropolitan areas while favoring general-purpose government. 91 The question is whether the "constituent" politics of federalism can be squared with a realignment of functions more rational financially and administratively. In the long run such a federal realignment might contribute marginally at least to resolution of problems of political alignment suggested in section III. 4. Constitutional Reform of the Separation of Powers and Federalism More fundamental alteration of federalism—its constitutional abolition or reconstruction—figures briefly in the speculations of this section. But federalism has usually seemed to reformers more pragmatically malleable than has the separation of powers, and Article V is problematically intractable. Since the Civil War constitutional reformers have focused on the separation of powers, as I shall in the following synopsis of reform proposals. Among those who have believed that the distribution of checks and balances in the American branch-banking system tend toward governmental insolvency, four complex strands of revisionist thought can be distinguished. One strand emphasizes party as organizer, normally subject to, and sustaining, more "responsible" presidential leadership. Constitutional reforms most commonly proposed to this end include four-year terms for members of the House of Representatives concurrent with the President's term, the addition of at-large members of the House elected by presidential slate on a winner-take-all basis to provide more national representation with workable executive majorities, and repeal of the "advice and consent" functions of the Senate—sometimes coupled with provision for override of Senate "vetoes" by the House. Along this line of reform the presidential veto power might or might not be retained; or it might become an "item veto." Some reformers would abolish the electoral college, electing the President directly either by national plurality vote or through the weighted electoral college system without its present aggregate majority requirement. In the latter case a presumably critical issue arises regarding the consequences of election law for the two-party system: those who take such consequences seriously (as I do) are likely to favor retention of the present electoral college or, failing that, to fall back on a simple-plurality requirement in the national outcome; but proportional allocation of state electoral votes coupled with a minimum national plurality (usually 40 percent) have been proposed more frequently. 92 In this line of thinking party organization would be consolidated basically through revival of the convention in presidential nominations, together with enlargement of the policy-shaping role of the party machinery. Conventions might comprise members of Congress and congressional candidates primarily or they might be based on

196

Charles

E. Gilbert

grass-roots election of delegates by qualified " m e m b e r s " of more formal party organizations, or they might be structured more pluralistically through the allocation of seats to group interests. In any case, the party platform would assume larger importance in most such reform proposals: conventions might meet annually or biennially to shape the party program; presidential nominees would be expected to follow the party platform explicitly. 9 3 T h e place of presidential-primary elections in this scheme has been ambiguous: some " r e s p o n s i b l e - p a r t y " reformers have favored a role for primary elections, with or without the pledging of delegates, and perhaps in a consolidated national primary; but I think most members of the party-government school would minimize or eliminate presidential primaries in order to enlarge the role of party organization. 9 4 A second strand of t h o u g h t — n o t necessarily inconsistent with the first—emphasizes approximations to parliamentary or "presidentialparliamentary" government, in one version or the other. In the first version the President would be subject to formal votes of confidence in Congress; if he lost, a new election would be held. 9 5 In the other version, Presidents might dissolve Congress, failing a vote of confidence; then either Congress or both President and Congress would run for reelection. 9 6 T h e several forms of this general approach have in common a desire for closer legislative-executive liaison, more cffcctive congressional leadership, and more stringent, contingent electoral discipline. But they differ sharply in their emphasis on Congress or President in the balance of powers. Critics of the former proposal think it would render presidential leadership too contingent and Congress too obdurate or domineering; proponents think it is a step toward more collective national management and prudent consultation. In the latter regard this proposal has affinities with the legislative-executive council or Cabinet discussed in section IV. 2, though the pure constitutional-reform proposal relies more heavily on the electoral sanction (which might, however, be combined with the jointCabinet proposal). Critics of the alternative version argue that presidential dissolution of Congress would risk the reelection of a similarly or more contumacious legislature, settling nothing or exacerbating matters—and that these problems might equally obtain if both branches stood for reelection, thus unsettling everything, including the direction of an already pluralistic bureaucracy. Supporters of dissolution have supposed elections would decide matters one way or the other; but they have also tended to favor reforms discussed above to foster party discipline and presidential leadership. A third strand of thought would go further toward the fusion of powers. In the most tentative version President and Cabinet would sit in Congress, without vote, for the purpose of policy leadership. 9 7 T h e next step would be to repeal Article I ( 6 ) ( 2 ) , thus permitting executive officers regular membership of Congress. And more thoroughgoing versions would move on toward parliamentary or cabinet government: the President's Cabinet would be chosen partly or entirely from Congress, perhaps with a congressional prime minister;

Shaping of Public Policy

197

or the President would also derive from Congress, without independent election. The loose analogues here are present-day France and Britain; and one issue in the difference is provision for a stable chief of state. In all these versions, bicameralism is an obvious problem: short of unicameralism, the Senate might be diminished through constitutional amendments mentioned above, or the 17th Amendment might be repealed and a less popular mode of senatorial "election" contrived. A number of concerns and intentions are combined in this strand of thinking: substitution of collective responsibility for the personalized and independent executive; stronger party organization and electoral accountability; more effective and programmatic support for political leadership; and, within a nationalized politics, a realignment of governmental "powers." As a contemporary analyst states the problem: the American system fragments "powers" and confuses "functions"; parliamentary systems consolidate "power" and provide a more sophisticated institutionalization of functions in which legislative intermeddling in management is minimized and administrative organization is more appropriately specialized—but in which policyshaping power in legislation and administrative coordination is more effective governmentally and more responsible politically.98 Indeed, one question about prospective abolition of the separation of powers today is whether it would adequately alter or consist with American administrative structure and tradition—whether executive direction and control of administration would be strong enough if the congressional role were altered, and whether the congressional role would indeed be altered. Among the other issues raised by parliamentary government in the United States are those of its majoritarian demands on a highly diverse polity, including its conceivable weakening of the two-party system and encouragement of coalition governments—an issue already suggested (section III) that seems to me of critical import. It is hard to imagine a less productive democratic polity than one combining coalition governments with the pluralism of American public administration. One's partiality to this approach is likely to depend as well on evidence that parliamentary governments have outperformed the American governmental system (ceteris paribus) in the past or are better suited to "postindustrial society." The fourth major strand of thinking about constitutional revision begins with reanalysis of governmental "powers" and their appropriate relation to politics and popular sovereignty. One version of this approach figured in the thinking of Woodrow Wilson and, more particularly, Frank Goodnow, reflecting the reception of German doctrine in late 19th century American academic life.99 It issued in the classical distinction between "politics" and "administration": the formulation and the execution of the people's will. Necessarily this approach tends to reprobate the separation of powers, given the modern role of the presidency. But it has always encountered practical problems in separating "administration" from "politics"—especially in the context of our Lockean and leveling tradition where the

198

Charles £.

Gilbert

Rechtstaat is an alien legal notion and the deferential foundations of an administrative elite are lacking. 1 0 0 In Frank Goodnow's thinking, therefore, the distinction was pragmatically redefined in the Progressive tradition, toward the insulation from politics of more or less scientific, judicial, or business activities in government. And in this version (dating practically from, e.g., 19th century state regulatory commissions and local planning boards) the doctrine has been influential. T h e reconsideration of " p o w e r s " was further developed in a more Hamiltonian direction by Rexford Tugwell—first in the conception of "planning" as a fourth branch of government; later by the addition of discrete appointed branches for regulation and for superintendence of political organization. 1 0 1 In Tugwell's thinking the separation of legislative and executive powers has been retained; but two Vice Presidents would be elected with the President: one as executive Vice President for general domestic affairs; the other for the " s t a f f " and international departments—State, Defense, Justice, Treasury. (The next step in this line of thinking might be to elect a plural presidency, or Cabinet, as proposed by Herman Finer, to provide collective executive responsibility and relieve the personal burdens of the presidency.) 1 0 2 T h e reanalysis of " p o w e r s " entails a tendency to inflate conceptions of governance without politics—of rational vision, technical discretion, virtual representation, and ambivalence regarding the liberal "state-society" distinction. American experience on this score has pretty clearly been that "out of (electoral) politics" implies susceptibility to more specialized and less explicit politics. And the American tendency has been to extend judicial controls over such sectors except as markets may provide discipline. But I suspect that "postindustrial" consideration of such problems as economic planning, wage-price adjudication, environmental regulation, energy development and conservation, or technology assessment will, in some dimensions of these topics, prompt further reanalysis of governmental functions or powers and of their institutional relation to politics and policy. O n e can imagine Congress creating its own agencies or ambiguously situated " b r a n c h e s " for advice or initiative on such subjects; and one can imagine their "rationalization" in an uncertain joinder of legislative and executive appointment, oversight, and reliance on their policy-shaping formulation. O n e can also imagine the progressive regionalization of some of these subjects, with implications for federalism, to be considered presently. It is worth observing that the American separation of powers doctrine emerged two centuries ago from a tradition in which natural law and its more or less judicial application to policy bulked as large as popular sovereignty. Moreover, two centuries ago the " p o w e r s " we now identify conventionally were hardly conventional: they had been opaque in the Second Treatise and less than perspicuous in The Spirit of the Laws.103 From this novelty there developed a remarkable uniformity among the "republican" structures of the states, varying

Shaping of Public Policy

199

mainly in application of the late Jeffersonian and Jacksonian principle extending election in all branches. (Within this basic federal framework local arrangements remained more heterogeneous.) One interesting approach to constitutional revision of the separation of powers (or development of new constitutional functions) today would be its essay in some state "experimental chambers," as civic reformers sometimes proposed in the early years of this century. If Pennsylvania could function with parliamentary government then, I suppose, so could any state. As for the nation, one issue worth considering is whether separated powers better serve its extent and diversity through multiple constituencies. This issue bears on the structure of federalism as well. Both those who would abolish federalism and those who would reform it fundamentally tend to agree, I think, on the anachronism of existing governmental boundaries. It is harder, however, to agree on new ones. National "regions" (in the numerical range of a dozen), metropolitan areas, and local communities (urban and rural) figure in most reforming thought. Beyond this four major issues arise. One issue is that of constitutional status: whether federalism in fundamental law should be dismantled; what in any case would be an appropriate allocation of functions; whether this allocation should strive for discreteness or encourage functional interpenetration; and what, if anything, should be done by way of provincial or local representation in the national government. (I'll pass over proposals for a functional, non-territorial federalism based on redefinition of "powers" and of relations between "polity" and "society.") A second issue concerns the number of governmental levels in constitutional or pragmatical standing—that is, those with substantial autonomy or responsibility for supervision of constituent levels. Here conceptions of federalism or decentralization as systems of limited "sovereignties," of review and appeal, of fiscal redistribution and functional superintendence, and of political bargaining come into play. I think these considerations are critical in the mitigation of both central governmental burdens and local governmental prejudice and impropriety as well as in political bargaining. In such considerations the argument for a strong intermediate governmental tier seems to me cogent. 104 Since I'm also persuaded of the contributions of federalism to liberty or autonomy (as many of federalism's critics are not) and of its probable connections with the benefits of appropriate local and jurisdictional identifications, I'd preserve constitutional federalism for a variety of reasons there's no space or occasion to argue here. 105 And I would restrain regionalization of national administration out of deference to the states, whether or not the latter were consolidated in number and geographical logic. As for the last point, the logic of existence is certainly strong, even if not constitutionally ineluctable. Thus a third issue concerns the permanence of territorial and jurisdictional delineations. Some reformers would accord constitutional standing to " s t a t e s " but not to their boundaries and number. 106

200

Charles

E.

Gilbert

Something like a national boundary commission would function (perhaps subject to legislative veto) in territorial and jurisdictional review, either at stipulated intervals or on occasion. A similar mechanism at the state level would function for adjustment of local boundaries. This proposal is easily caricatured as a floating governmental crap game; and it is easily classified as unrealistic in the light of American political traditions (or even of British experience). But, without reference to the national constitution, the state version of it—regarding local government, and probably subject to legislative veto—seems worth serious consideration as bearing on both territorial and functional jurisdiction. Finally, there is the issue of general-purpose government, discussed in section III. 3 above, and related to the issue of the relative segmentation or commingling of functions. I say "relative" advisedly, since nothing more seems feasible or desirable. And beyond that I've already vented concerns on this subject and its implications for political organization and civic participation. In all the constitutional proposals just hastily rehearsed I guess it goes without saying that tradition and the problem of articulation with existing institutions—perhaps especially the two-party system and the pattern of national administrative organization and responsibility—is an important consideration. I don't mean tradition for its own sake, but rather a concern for the prospective fit of reforms with consequential expectations and habits. There seems reason in this consideration for proceeding piecemeal through constitutional adjustments that may have strategic effects rather than through global reforms. But, given my own sense that the American system will probably work as tolerably with as without constitutional revision, this prudential advice may be merely prejudicial. V. PUBLIC POLICIES FOR SHAPING THE SHAPING OF PUBLIC POLICY It was suggested at the beginning of this paper that our ways of shaping policy are as subject to constructive change through public understandings as they are through legislative actions—though I should add that more explicit attention to the reflexive effects of substantive policies through their effects on public institutions is probably in order today. This paper concludes with a list of issues for committee consideration in the Bicentennial Conference—though not all of them have figured in the present version of the paper. T h e measures most worth considering can be classified as constitutional, pragmatic, and prudential for want of better terms—that is, as entailing constitutional reform or its functional equivalent, as subject to statutory action, or as depending on opinion leadership and civic endeavor. In my view the constitutional revisions are for the most part least important. Among the difficulties, present and prospective, identified in section I, I tend to take most seriously the balance of competition and interpenetration between market, governmental, and subsidized "public-

Shaping of Public Policy

201

service" sectors in so-called postindustrial society along with that system's probable propensities toward inflation and cumulative educational "class" cleavages; the ambivalent trends toward centralization and private devolution in modern American government; the complexity of public organization and management resulting from the density and extensity of public policy and the trend toward public-sector trade unionism; the regulatory and allocative problems posed by endemic inflation, materials scarcity, and environmental stringency; the ideological assimilation of liberty to equality along with pressures toward public-service entitlements; and the likely challenges of "planning" in a society characterized by large-scale pluralism. Together with "garrison-state" tendencies, this constellation of difficulties seems likely to render the shaping of policy less subject to "popular sovereignty" as well as less susceptible to political leadership. This is the more so as it contributes—with the secular and reciprocal effects of congressional delegation, presidential aggrandizement, and electronic mass communications—to the erosion of party as a structure of leadership and participation as well as a buffer of responsibility. Certain concerns will probably have been apparent in section II. These include the growing tension between government by institutionalized, electorally responsible elites and the populistic strain in American politics now fortified by highly educated aspirants to participation and respondents to electronic communication. I suppose a productive balance of responsibility and responsiveness in government implies some institutional insulation of decision and an ideological regard for liberty or autonomy consistent with, but not simply assimilated to, political equality. Still, the condition of political inclusion is critical. It implies, I think, not only continuing electoral organization and competition, but the improvement of local governing institutions subject to civic and electoral participation. Other avenues of participation surely contribute to the social conditions of popular sovereignty; but insofar as they tend to adulterate electoral organization and distributed self-government they may also be deleterious. In general, therefore, I suspect that liberal pragmatism and private federalism will tend to generate privilege, to dissipate legislative and administrative responsibility, and to frustrate political inclusion despite the recent reliance on delegation and devolution in national policy to redress imbalance in participation. Several concerns dominate sections III and IV. For the shaping of policy through the concert and control of leadership and the diffusion of influence there seems no suitable substitute for the two-party structure. It is difficult today to take an oracular stand between the "responsible-party-government" optimists and the Cassandras on the score, or between the pluralist complacency of a decade ago and those who favor a corporate politics of programs without reference to party. I'm persuaded that the Cassandras have rightly identified some worrisome prospects for party organization and alignment; and I think the restoration of more than a modicum of party responsi-

202

Charles

E.

Gilbert

bility is a cause of high priority if public policy, leadership, a n d p a r ticipation are to be institutionalized effectively. I guess it will be evident that m y aspirations f o r the p a r t y s y s t e m fall well s h o r t of high m a j o r i t a r i a n i s m . It m a y also be evident that I t h i n k t h e federal system needs attention. Indeed, I'm perverse e n o u g h to believe that the improvem e n t of state g o v e r n m e n t s as policy s h a p e r s and structures of sovereignty in relation to local g o v e r n m e n t is conceivable and (for reasons adduced in sections III and IV) desirable. Inter alia, this implies some sorting out of f u n c t i o n s a n d g r a n t p a t t e r n s at the national level, with early e m p h a s i s on public-welfare policy a n d long-run attention to its c o n t a i n m e n t . I suspect C o n g r e s s will find it increasingly difficult to f u n c t i o n adequately in its multiple roles, and especially in the deliberate s h a p ing of policy. T h e technicality and schematic requirements of m o d e r n policy are less at issue here, I suppose, than decline of the conditions of legislative leadership a n d deterioration of the presidential connection. T h e materials of legislative leadership, like those of p a r t y restoration, are not a p p a r e n t n o w , t h o u g h the importance of preserving the several f u n c t i o n s of C o n g r e s s in its quintessential representative role is m o r e a p p a r e n t t h a n ever. Finally, w h a t e v e r the inevitable dispersive effects of a strong Congress, together with those of liberal-pragmatic doctrines of a d ministrative responsibility, I think w e need to w o r k toward more administrative consolidation. I d o n ' t m e a n b y this larger d e p a r t m e n t s or more immediate presidential supervision or even the bureaucratic merger of appropriately " i n d e p e n d e n t " agencies. I do mean m o r e managerial integration t o w a r d the top and t h r o u g h the line d e p a r t ments. I suppose the conditions of m o d e s t progress on this score lie in more collective consultative presidential leadership and liaison with C o n g r e s s ; in greater organizational integration of the " h i g h e r " civil service; and in managerial doctrine and practice that are b o t h technically sophisticated and politically sensitive. T h e s e are also conditions of response to the challenge of " p l a n n i n g , " not as desirably global and comprehensive, but as sufficiently purposive and articulate to render " p l a n n i n g " selective and politically responsible. Even m o d e s t progress t o w a r d administrative consolidation in this sense is a tall order. Its p r o x i m a t e condition is probably the repair of checks and balances toward a system sustaining more collective leadership in both legislative a n d executive b r a n c h e s and more consultation b e t w e e n them. Some visible party organization and viable party alignments would help a lot in these connections. Here t h e problem is to reconnect presidency and p a r t y , and to that end some retrogression in presidential n o m i n a t i n g a r r a n g e m e n t s might b e helpful. T h a t would m e a n p a r t y conventions w i t h o u t too m a n y pledged delegates a n d with ample r e p r e s e n t a t i o n of congressional m e m b e r s h i p ; and if such proceedings d o n ' t j u s t i f y prime television time then p e r h a p s they could be reported in the n e w s p a p e r s . T o w a r d the connection of President and C o n g r e s s I think the Cabinet e x p a n -

Shaping of Public Policy

203

sion toward a legislative council discussed in section IV is worth trying. If that's insufficient then a constitutional amendment to provide for a vote of confidence might be considered. Save possibly (with reservations) for adoption of four-year terms in the House of Representatives, concurrent with presidential terms, I don't look toward formal constitutional alteration for help. 107 That is partly because, with reference to issues suggested in section II, I suspect the separation of powers makes a practical, beneficial difference for liberal-democratic values in American society, on balance. (Among its institutional benefits a strong Congress and reinforcement of the two-party system merit mention.) In my reading, the founding compromise has served effectively and flexibly, for the most part, to balance responsibility and responsiveness in national leadership, and I doubt the interpretation that it induced civil war in the last century. In the course of this century, it seems to me, the balance of responsibility has gradually tilted too far on the presidential side, exceeding reasonable limits of executive capacity and accountability. Now the system's insulating and plebiscitarian properties there need more institutionalization and, especially, congressional participation in an age of massive administration and mass communication. Measured progress toward a "modern" party system seems paradoxically in order now, when the popular conditions of it seem problematical; but I'll suggest that we might best begin at the top, with presidential and congressional leadership, responding to a sense of necessity through more conciliar responsibility. VI. ISSUES FOR CONSIDERATION The effects of measures aimed at shaping the shaping of policy in the United States can be no more than conjectural. Necessity and uncertainty both suggest an incremental method. As suggested above, the measures worth considering can be classified as constitutional, pragmatic, and prudential. The following list of topics for discussion is simply a catalogue, with references to the foregoing discussion of issues, and concludes this long paper at last. A. Should the separation of powers be attenuated or eliminated? Progressive steps in this direction include: 1. The conciliar approach, without constitutional reform: IV.2, IV.4. 2. The vote of confidence. IV.4. 3. Congressional dissolution, with or without presidential resignation. IV.4. 4. Presidential and Cabinet membership of Congress. IV.4. 5. Parliamentary or cabinet government. IV.4. B. The redefinition of governmental "powers" and constitutional establishment of new "branches." IV.4. C. Constitutional reconstruction of Congress:

204

Charles E. Gilbert

1. T h e four-year term in the H o u s e of Representatives. IV.4. 2. Retrenchment and/or reconstitution of the Senate. IV.4. 3. Unicameralism. IV.4. D . T h e federal s y s t e m . 1. 2. 3. 4.

Its constitutional abolition. IV.4. Consolidation and reduction in the n u m b e r of states. IV.4. M o r e thoroughgoing federal regionalization. IV.4. T h e reconstruction of state g o v e r n m e n t : experimentation with the separation of powers. IV.4. 5. T h e improvement of g e n e r a l - p u r p o s e local government. IV.4, III.3.

E. T h e electoral system. 1. R e f o r m of the electoral college. IV.4, III.l. 2. Alternatives to single-member-district, plurality IV.4, III.l. 3. T h e control of election expenditures. III.5. 4. Registration and minor-party ballot opportunities. 5. Electoral s u b s t i t u t e s : the referendum.

elections.

F. Revision of the First A m e n d m e n t . 1. With respect to regulation of the m a s s media. 2. With respect to regulation of parties and elections. 3. With respect to religious institutions a s objects of policy in a pluralistic society.

public

G. Reconstitution of the party s y s t e m . 1. R e f o r m of presidential nominating procedures. IV.4, III.5, III.l. 2. T h r o u g h legislative-executive consolidation or liaison (above). H. Executive branch reorganization short of constitutional reform. 1. 2. 3. 4. 5. 6. 7. 8. 9. 10.

Civil service consolidation. IV.3. T h e improvement of managerial and analytic technique. IV.3. Larger presidential reorganization authority. IV.3. T h e enhancement of " p l a n n i n g " organization. IV. 3, III.2, 1.2. T h e merger of regulatory organization, or the further insulation of special functions. IV.3, IV.4. T h e restriction of devolution to private parties. IV.3, III.2, 1.8 and 9. T h e control of policy s h a p i n g through governmental contracting. IV.3. Judicialization, ethical and procedural s t a n d a r d s , revision of conflict-of-interest statutes. IV.3. Policy toward public-employee organization and collective bargaining. IV.3. C a n or should the presidency and executive-branch m a n a g e ment be more fully " i n s t i t u t i o n a l i z e d " ? IV.2 and 3.

S h a p i n g of Public Policy

205

I. The reorganization of Congress short of constitutional reform. 1. The committee structure. IV.l. 2. The conditions of leadership. IV.l, III.l. 3. The control of delegated legislation and the role of the legislative veto. IV.3, III.2. 4. Congressional staffing and the institutionalization or professionalization of Congress. IV.l. 5. More effective direction and control of administration. IV.3, IV.l. J. The federal system short of constitutional reform. 1. T h e enhancement of state government through reallocation of functions and alteration of federal-grant patterns. IV.4, IV.3, III.3, 1.8. 2. The balance and makeup of grants: categorical and block; program and project. Forms of revenue sharing. IV.3. 3. T h e balance of special-purpose and general-purpose local government. IV.4, IV.3, III.2, 1.8. 4. The territorial jurisdiction of local government, primarily in urban areas. IV.4, III.3, 1.7. K. The regulation and encouragement of interest groups associations.

and

1. Regulation of group organization and participation opportunities. III.2 and 3. 2. Governmental devolution and subsidy to private organizations. IV.3, III.2, 1.2 and 8. 3. Does the regulation of lobbying need revision in either Congress or executive branch or both? IV.3 and 1. L. Participation as an object of policy. 1. Devolution and "private federalism." IV.3, III.2 and 3,1.8. 2. Group regulation, and industrial self-government. See K ( l ) above. 3. Regulation of political-party organization. IV.4, III.l and 3. 4. The roles of general-purpose and special-purpose local government. See J (3) above. M. Secrecy and publicity in government. 1. The appropriate balance of "sunshine" and discretion. IV.3. 2. The control of institutional advertising by governmental agencies. IV.3. 3. The balance of responsibility between public officials and the fourth estate. IV.3, III.5, 1.6. N. The policy- and opinion-shaping role of the media. 1. How, if at all, should the right to publication be limited? 1.6. 2. Is there a place for public broadcasting in public information; and, if so, how should it be organized? III.5 and 1.6.

206

Charles

E.

Gilbert

3. W h a t

a r e the professional

and cultural

requirements

of

a

" f r e e and responsible p r e s s " ? 1.6. 4 . Is e c o n o m i c c o n c e n t r a t i o n of the media a serious

problem;

and, if so, is it appropriately subject to regulation? 1.6. 5 . W h a t c a n the media c o n t r i b u t e to f u n d a m e n t a l public u n d e r standing and realistic trust in politics? 1.5 and 6. O . Public education toward civic and political c o m p e t e n c e . 1. C a n

we

enhance

political

understanding

and

competence

through the public-school curriculum, and, if so, h o w ? 2. H o w can public education (including p o s t - s e c o n d a r y

educa-

tion) effectively c o u n t e r the m e r i t o c r a t i c class cleavages projected for "postindustrial s o c i e t y " ? 1.4. 3. Is the shaping of educational policy b e c o m i n g too centralized for the welfare of a free s o c i e t y ? 1.8. 4. In

particular,

should

we

more

freely

subsidize

sectarian

schools in the interest o f a pluralistic s o c i e t y ? II. P. H o w might public policy better serve such conditions o f " c i v i c c u l t u r e , " social diversity, and personal welfare as tend to favor liberal d e m o c r a c y ? 1. W h a t options of welfare, civil rights, and

human-resources

policy might be of strategic i m p o r t a n c e for a u t o n o m y , equality, and c o m m o n a l t y ? II. 2. H o w can privileged and d e p e n d e n t relations on

government

best be minimized consistent with a u t o n o m y , equality,

and

c o m m o n a l t y ? II. 3. H o w

should

group

differentiation

and

decentralization

be

balanced with generality and centralization of policy consistent with a u t o n o m y , equality, and c o m m o n a l t y ? II. 4. In the long run, are g o v e r n m e n t a l a r r a n g e m e n t s for devolution to or close liaison with private organizations m o r e or less likely than administrative consolidation to create perceptions of corruption and to impair public t r u s t ? I V . 3 , III.2, and 3. 5. H a v e the density and e x t e n s i t y of national policy carried us beyond our administrative c a p a c i t y , with resultant loss of c o n fidence in politics and g o v e r n m e n t ? I V . 3 , 1.10. 6. E v e n if n o t , can we handle the Phillips curve, the problems of energy supply, and those o f e n v i r o n m e n t a l preservation w i t h out degrees of regulation o r e x p e c t a t i o n s of planning capacity that o v e r t a x our governing and political capacities? IV.3, III.l and 5, 1.1, 2, 4, 9 and 1 0 .

Shaping of Public Policy

207

NOTES 1. Robert L. Human Prospect Inc., 1974).

Heilbroner, Art Inquiry into the (New Y o r k : W . W . Norton & Co.,

2. Charles A. Reich, " T h e New P r o p e r t y , " Y ale Law Journal 73 (1964), p. 7 3 3 ; S. M . Miller and Frank Reissman, Social Class and Social Policy (New Y o r k : Basic Books, Inc., 1968). 3. Theodore J. Lowi, The End of Liberalism Y o r k : W . W . Norton & Co., Inc., 1969).

(New

4. C. W . Mills, The Power Elite (New Y o r k : O x ford University Press, 1 9 5 6 ) ; J. K. C a l b r a i t h , The New Industrial State ( B o s t o n : Houghton Mifflin Co., 1967). 5. Daniel Bell, The Coming of Post-Industrial Society (New Y o r k : Basic Books, 1973). See also Samuel P. Huntington, "Post-Industrial Politics: How Benign Will It B e ? " Comparative Politics 6 (January 1974), pp. 1 6 3 - 9 1 . 6. O n the sectors, see T a l c o t t Parsons, Structure and Process in Modern Societies ( G l e n c o e : Free Press, 1960). O n wage inflation in the service sector, see William J. Baumol, " T h e Macroeconomics of U n balanced G r o w t h , " American Economic Review 57 (1967), p. 415. 7. An interesting statement on this point is that of Peter Drucker, " O n the Economic Basis of American Politics," The Public Interest 10 (Winter 1968), p. 30. 8. T h e speculations I offer here derive primarily from Huntington, "Post-Industrial Politics"; Nicholas Rescher, Welfare (Pittsburgh: University of Pittsburgh Press, 1972), chap. 9 ; and M. Donald Hancock and Gideon Sjoberg, eds., Politics in the PostWelfare State (New Y o r k : Columbia University Press, 1972), esp. pp. 1 - 1 1 3 . 9. O n overt and covert policies, see Robert A. D a h l , Who Governs? (New H a v e n : Yale University Press, 1961). 10. T h e bases of this allegation are discussed in Huntington, "Post-Industrial Politics," pp. 1 8 2 - 8 6 . T h e allegation antedates W a t e r g a t e , and is perhaps most persuasive with respect to the war in Vietnam. 11. T h i s is a prominent theme of Scott Greer, Emerging City (New Y o r k : Free Press, 1962).

The

12. M o r t o n Grodzins, The American System (Chic a g o : Rand McNally & Co., 1966). For the minority view, see Harry N. Scheiber, The Condition of American Federalism: An Historian's View (Washington: U.S. Senate Committee on Government Operations, Committee Print, 1966). 13. N u m b e r s in civilian public employment at the several governmental levels are not, I think, at issue here (cp. n. 15). Since W o r l d W a r II state and local public employment (excluding education) has risen much more rapidly than federal-government employm e n t — a t the state level most rapidly of all, and especially in the 1 9 6 0 s ; and the state-local increase is still larger comparatively if educational employment is included. 14. T h e

automobile

figures

in

208

two

random

ex-

a m p l e s : EPA's mandated standards for state and local air-pollution control programs, currently under litigation (the Clean Air Act of 1970), and the grant condition that state laws permit right-hand turns at red lights (Energy Conservation Act of 1975). 15. Federal civilian employment increased by 70 percent, 1 9 3 0 - 4 0 ; by 97 percent, 1 9 4 0 - 5 0 ; by 17 percent, 1 9 5 0 - 6 0 ; and by 20 percent, 1 9 6 0 - 7 0 . Per 1,000 population it increased by some two-thirds in the 1930s and by some three-fourths in the 1940s, levelling off thereafter in this ratio. 16. See, for example, Don K. Price, The Scientific Estate (Cambridge: Harvard University Press, 1965). 17. O n this argument, see Galbraith, The New Industrial State; and Robert L. Heilbroner, " T h e A m e r i c a n P l a n , " New York Times Magazine, 25 January 1976, p. 9. And consider the preference of business leadership for statutory and administrative regulation over effluent and emission charges a s a form of environmental policy. 18. Theodore J. Lowi, " F o u r Systems Policy, and Choice," Public Administration 32 (1972), p. 298.

of

Public Review

19. See, for example, Flast v. Cohen, 392 U.S. 83 ( 1 9 6 8 ) ; the discussions in Barlow v. Collins, 397 U.S. 159 (1970); and U.S. v. Students Challenging Regulatory Agency Procedure ( S C R A P ) , 412 U.S. 669 (1973). 20. For purposes of discussion in the Bicentennial Conference it seemed important to review various perspectives on our founding, constitutional assumptions, and the conditions of democratic government today. But the limitations of space in publication preclude retention of that material here; and in this severely truncated section I mean simply to point allusively to issues that figure in subsequent sections of the paper. 21. Charles S. Hyneman, Popular Government in America (New Y o r k : Atherton Press, 1968), p. 8. 22. O n the connection with majoritarianism, see Austin Ranney and Willmoore Kendall, Democracy and the American Party System (New Y o r k : Harcourt, Brace & Co., Inc., 1956). For some criticisms of the conception from different perspectives, see Robert A. D a h l , A Preface to Democratic Theory (Chicago: University of Chicago Press, 1 9 5 7 ) ; and Giovanni Sartori, Democratic Theory (New Y o r k : Praeger Publishers, Inc., 1963). 23. S . M. Lipset, in The First New Nation (New Y o r k : Basic Books, Inc., 1963), argues that through the heritage of constitutionalism, American politics was able to maintain a distinction between the source of authority (or sovereignty) and the agents of authority, avoiding populistic excesses, or what Samuel P. Huntington terms "praetorian politics" in Political Order in Changing Societies (New H a v e n : Yale University Press, 1968). 24. A fine analysis of the framers' view on representation is contained in David G. Smith, The Convention and the Constitution: The Political Ideas of the Founding Fathers (New Y o r k : St. Martin's Press,

Charles E. Gilbert

Inc., 1965). M o r e generally, from the compendious literature on the founding intentions one must mention Gordon 5. Wood's magisterial The Creation of the American Republic, 1776-1787 (Chapel Hill: University of North Carolina Press, 1969). 25. Dahl, A Preface to Democratic Theory, and cp. M. J. C. Vile, Constitutionalism and the Separation of Powers ( O x f o r d : Clarendon Press, 1967). See also William H. Riker, Democracy in the United States, rev. ed. (New Y o r k : Macmillan Co., 1 9 6 4 ) ; and Federalism (Boston: Little, Brown & Co., 1964). 26. J. Roland Pennock, "Responsiveness, Responsibility, and Majority Rule," American Political Science Review 56 (1952), p. 791. For an opposing view, advocating constructive accountability to electoral majorities, see Riker, Democracy in the United States. 27. David G. Smith, "Pragmatism and the Group T h e o r y of Politics," American Political Science Review 58 (1964), p. 600; and Lowi, The End of Liberalism, pt. 1. 28. See, for example, Richard Hofstadter, The Idea of a Party System (Berkeley: University of California Press, 1969). See also Charles S. Hynem^n and George W . Carey, A Second Federalist (New Y o r k : Appleton-Century-Crofts, Inc., 1967), pt. IV, for selections from early congressional debates on the role of faction or party. 29. O n the "responsible-party-government" doctrine, see Ranney and Kendall, Democracy and the American Party System, esp. chaps. 6, 17, 2 0 - 2 2 . O n the argument for a larger party role in congressional organization, see Samuel P. Huntington, " C o n g r e s sional Responses to the Twentieth Century," in David B. T r u m a n , ed., The Congress and America's Future (Englewood Cliffs: Prentice-Hall, Inc., 1965). 30. See, e.g., Gordon Smith, Politics in Western Europe (New Y o r k : Holmes & Meier Publishers, Inc., 1973). 31. For divergent views on this prospect see, for example, David S. Broder, The Party's Over (New Y o r k : Harper & Row Publishers, 1 9 7 2 ) ; W . Dean Burnham, Critical Elections and the Mainsprings of American Politics (New Y o r k : W . W . Norton & Co., Inc., 1 9 7 0 ) ; Everett Carll Ladd, Jr., Transformations of the American Party System (New Y o r k : W . W . Norton & Co., Inc., 1 9 7 5 ) ; Samuel Lubell, The Hidden Crisis in American Politics (New Y o r k : W . W . Norton & Co., Inc., 1 9 7 1 ) ; Kevin Phillips, Mediacrncv (Garden City: Doubleday & Co., Inc., 1975); Gerald Pomper, Voters' Choice (New Y o r k : Dodd, Mead & Co., 1 9 7 5 ) ; James L. Sundquist, Dynamics of the Party System ( W a s h i n g t o n : Brookings Institution, 1973). 32. Such current tendencies in the electorate are discussed in Arthur H. Miller, Warren E. Miller, Alden S. Raine, and Thad A. Brown, " A M a j o r i t y Party in D i s a r r a y : Policy Polarization in the 1972 Election" (The Center for Political Studies of the University of Michigan, Mimeo). 33. Sundquist, Dynamics 34. Phillips,

of the Party

System.

Mediacracy.

35. Pomper, Voters'

Choice.

36. A couple of such participatory

Shaping of Public Policy

arrangements

may be provocative illustrations: the community action program and comprehensive health planning (based on legislation of 1964 and 1966). T h e r e were cogent reasons for both in the " t a r g e t i n g " of p o l i c y — in one case largely on neighborhoods; in the other on regions. And there were persuasive " c o n s t i t u e n t " reasons in the countering of state and municipal bureaucracies or of hospitals and medical societies. But in each case there was also much diffusion of policy instead of more focused redistribution of income in the Poverty Program or effective regulation of medical facilities to reach a m a j o r source of escalating health care costs. 37. For example, David B. T r u m a n , The Governmental Process (New Y o r k : Alfred A. Knopf Inc., 1951). 38. T h e vast literature on this subject is reviewed in J. David Greenstone, " G r o u p T h e o r i e s , " in Fred I. Greenstein and Nelson W . Polsby, eds„ Handbook of Political Science, vol. 2 (Reading, M a s s . : AddisonWesley Publishing Co., Inc., 1 9 7 5 ) ; and Robert Salisbury, " I n t e r e s t G r o u p s , " vol. 4, ibid. T w o remarkable recent analytic treatments a r e : M a n c u r O l s o n , The Logic of Collective Action (Cambridge: Harvard University Press, 1965), and James Q . Wilson, Political Organizations (Cambridge: Harvard University Press, 1973). 39. Not that officials of the federal government have been unconcerned about problems of accountability in this trend. See, for example, the looseleaf Grants Administration Handbook of D H E W . 40. Grant McConnell, Private Power and American Democracy (New Y o r k : Alfred A. Knopf Inc., 1 9 6 6 ) ; Lowi, The End of Liberalism. 41. McConnell, Private Industrial State.

Power;

Galbraith, The

New

42. E. E. Schnattschneider, The Semisovereign People (New Y o r k : Holt, Rinehart & W i n s t o n , 1 9 6 0 ) ; Peter Bachrach, The Theory of Democratic Elitism ( B o s t o n : Little, Brown & Co., 1 9 6 7 ) ; M u r r a y Edelman, The Symbolic Uses of Politics ( U r b a n a : University of Illinois Press, 1964). 43. Lowi, The End of Liberalism; Robert A. Dahl and Charles E. Lindblom, Politics, Economics, and Welfare (New Y o r k : Harper & Bros., 1953), chap. 12. See also Smith, " P r a g m a t i s m and the Group T h e o r y of Politics." 44. See, for example, Heinz Eulau, " L o b b y i s t s : T h e Wasted P r o f e s s i o n , " Public Opinion Quarterly 28 (1964), p. 2 7 ; Raymond Bauer, et al., American Business and Public Policy (New Y o r k : Atherton Press, 1964). Compare E. P. Herring, Group Representation before Congress (Baltimore: J o h n s Hopkins University Press, 1929). 45. T h e r e is some discussion of these issues in Hans. A. Linde and G e o r g e Bunn, Legislation and Administrative Processes ( M i n e o l a : Foundation Press, Inc., 1976). 46. Readers may recognize in these s u g g e s t i o n s — the first and fourth especially—the program of Lowi, The End of Liberalism. 47. For some tendentious but provocative views of the former balance today and tomorrow, see G a l -

209

braith, The New Industrial State; and Robert L. Heilbroner, Business Civilization in Decline (New York: W. W. Norton & Co., Inc., 1976). 46. Dahl and Lindblom, Politics, Economics, and Welfare, p. 436. 49. For example, Bachrach, The Theory of Democratic Elitism. 50. Alan Altschuler, Community Control (New York: Bobbs, Merrill Co., Inc., 1970); Milton Kotier, Neighborhood Government (Indianapolis: BobbsMerrill Co., Inc., 1969); Robert A. Dahl, "The City in the Future of Democracy," American Political Science Review 61 (1967), p. 953. 51. On distributed self-government, see Charles S. Hyneman, Popular Government in America (New York: Atherton Press, 1968). 52. See, for example, Elie Halevy, The Growth of Philosophic Radicalism (London: Faber & Faber, Ltd., 1928) pt. 2, chap. 1; pt. 3, chap. 2. 53. Grodzins, The American System. 54. For an interesting discussion of this point, see Daniel J. Elazar, " T h e New Federalism: Can the States be Trusted?," The Public Interest 35 (Spring 1974), p. 89. 55. Sidney Verba and Norman H. Nie, Participation in America (New York: Harper & Row Publishers, 1972). 56. Gerald M. Pomper, Elections in America (New York: Dodd, Mead & Co., 1968). 57. Angus Campbell, Philip Converse, Warren E. Miller and Donald E. Stokes, Elections and the Political Order (New York: John Wiley & Sons, 1968), chap. 9 ; V. O. Key, Politics, Parties and Pressure Groups, 5th ed. (New York: Thomas Y. Crowell & Co., Inc., 1964), chap. 8. 58. Warren E. Miller and Donald E. Stokes, "Constituency Influence in Congress," American Political Science Review 57 (1963), p. 45. As to the expressed policy positions of candidates interviewed, this survey found generally greater congruence with majority constituent opinion among winning candidates than among the losers. 59. Edward R. Tufte, "Determinants of the Outcomes of Midterm Congressional Elections," American Political Science Review 69 (1975), p. 812. 60. Richard Rose and Harve Mossawir, "Voting and Elections: A Functional Analysis," Political Studies 15 (1967), p. 173. 61. Pomper, Elections

in America,

p. 253.

62. On the decline of party in the electorate, see, especially, Norman H. Nie, Sidney Verba, and John R. Petrocik, The Changing American Voter (Cambridge: Harvard University Press, 1976). 63. See, for example, Richard L. Rubin, Party Dynamics: The Democratic Coalition and the Politics of Change (New York: Oxford University Press, 1976); and for some suggestive speculations, Richard M. Merelman, "Electoral Instability and the American Party System," Journal of Politics 32 (1970), p. 115. 64. On this score the comments of Burger, C. J.,

210

dissenting in part in Buckley v. Valeo, 424 U.S. 1 (1976), are suggestive. 65. Nie, Verba, and Petrocik, The Changing American Voter, and Paul R. Abramson, "Generational Change and the Decline of Party Identification in America," American Political Science Review 70 (1976), p. 469. 66. Lowi, "Four Systems of Public Policy, and Choice." The nature of redistributive and regulatory policies will seem clear enough (despite their frequent indistinguishability in practice). "Distributive" policies confer benefits without apparent costs to other parties; "constituent" policies alter institutional opportunities for access and influence. 67. On this point, see Nelson W. Polsby, "Legislatures," in Greenstein and Polsby, Handbook of Political Science, vol. 5. 68. See, for example, J. R. Johannes, "Congress and the Initiation of Legislation," Public Policy 20 (1972), p. 281; and Ronald D. Moe and Steven Teel, "Congress as Policy Maker: A Necessary Reappraisal," Political Science Quarterly 85 (1970), p. 443. 69. For example, Samuel P. Huntington, "Congressional Responses to the Twentieth Century," in Truman, ed., The Congress and America's Future. 70. See, e.g., Michael W. Kirst, Government Without Passing Laws (Chapel Hill: University of North Carolina Press, 1969); Robert W. Dixon, "Congress, Shared Administration, and Executive Privilege," in Harvey C. Mansfield, ed., Congress Against the President (New York: Praeger Publishers, Inc., 1975); John E. Schwartz and L. Earl Shaw, The United States Congress in Comparative Perspective (Hinsdale: Dryden Press, 1976), chap. 7. 71. On proposals for such regularization, see e.g., Walter Gellhorn, When Americans Complain (Cambridge: Harvard University Press, 1966). 72. There is impressive testimony to this contribution in, for example, Robert E. Lane, Political Ideology (New York: Free Press, 1962). 73. Representative treatments include Stephen K. Bailey, Congress Makes a Law (New York: Columbia University Press, 1950); and The New Congress (New York: St. Martin's Press, Inc., 1966); James M. Burns, Congress on Trial (New York: Harper & Bros., 1949); and The Deadlock of Democracy (Englewood Cliffs: Prentice-Hall & Co., 1963); Richard Boiling, House out of Order, (New York: E. P. Dutton & Co., 1966); and Joseph 5. Clark, Congress: The Sapless Branch (New York: Harper & Row, Publishers, 1964). 74. The discussions in Truman, ed., The Congress and America's Future are pertinent to this point. 75. As to the shaping of policy, the rise of some senatorial staff empires, reflecting the financial means of individual Senators as well as more liberal staffing provisions, may well be an unbalancing influence. As to investigative activities, a current case in point as this paper is revised is the House Select Committee on Assassinations, whose chief counsel is recommending a staff of 170. New York Times, 14 November 1976, p. 30.

Charles E. Gilbert

76. Sec, for example, Nelson W. Polsby, " T h e Institutionalization of the U.S. House of Representatives," American Political Science Review 62 (1968), p. 144; H. Douglas Price, "The Congressional Career: Risks and Rewards," in Nelson W. Polsby, ed., Congressional Behavior (New York: Random House Inc., 1971); and Lewis Mayhew, Congress: The Electoral Connection (New Haven: Yale University Press, 1974). 77. A forceful but useful statement of this perspective is Willmoore Kendall, "The Two Majorities," Midwest Journal of Political Science 4 (1960), p. 317. 78. Walter Bagehot, The English Constitution (1867; London: Oxford University Press, 1928). 79. I thing a useful recent treatment of these matters is Erwin C. Hargrove, The Power of the Modern Presidency (Philadelphia: Temple University Press, 1974). See also George E. Reedy, The Twilight of the Presidency (New York: World Publishing Co., 1970). 80. For different versions of this proposal, see Edward S. Corwin, The President: Office and Powers, 3rd ed. (New York: New York University Press, 1948); and Charles S. Hyneman, Bureaucracy in a Democracy (New York: Harper & Bros., 1950). 81. A general discussion of some of these issues may be found in Mark V. Nadel and Francis E. Rourke, "Bureaucracies," in Greenstein and Polsby, Handbook of Political Science, vol. 5, esp. pp. 41129, with references to the large literature of the subject. I sought to identify some of the issues in the meanings and modes of responsibility in " T h e Framework of Administrative Responsibility," Journal of Politics 21 (1959), p. 373. 82. The quoted phrase is that of the late Wallace S. Sayre, who applied it to personnel administration in "The Triumph of Technique over Purpose," Public Administration Review 8 (1948), p. 134. 83. See Lloyd N. Cutler and David R. Johnson, "Regulation and the Political Process," Yale Law Journal 84 (1975), p. 1395, and James O. Freedman, "Crisis and Legitimacy in the Administrative Process," Stanford Law Review 27 (1975), p. 1041. 84. Compare Kenneth Culp Davis, Discretionary Justice (Baton Rouge: Louisiana State University Press, 1969), chap. 2; and James O. Freedman, "Delegation of Power and Institutional Competence," University of Chicago Law Review 43 (1976), p. 307. 85. Kenneth J. Meier, "Representative Bureaucracy: An Empirical Analysis," American Political Science Review 69 (1975), p. 526; V. Subramaniam, "Representative Bureaucracy: A Reassessment," American Political Science Review 61 (1967), p. 1010; Frederick C. Mosher, Democracy and the Public Service (New York: Oxford University Press, 1968); John Armstrong, The European Administrative Elite (Princeton: Princeton University Press, 1973). 86. See esp. Mosher, Democracy and the Public Service; and Paul Van Riper, History of the United States Civil Service (Evanston: Row, Peterson & Co., 1958). 87. See, for example, Report of the Commission on Government Procurement (Washington: GPO, 1972), 4 vols.; Clarence Danhoff, Government Contracting

S h a p i n g of P u b l i c P o l i c y

and Technological Change (Washington: Brookings Institution, 1968). 88. Useful discussions include Francis E. Rourke, Secrecy and Publicity (Baltimore: Johns Hopkins University Press, 1961); Francis E. Rourke, ed., " A Symposium, Administrative Secrecy: A Comparative Perspective," Public Administrative Review 35 (1975), p. 1; Joseph W. Bishop, Jr., " T h e Executive's Right of Privacy: An Unresolved Constitutional Question," Yale Law Journal 66 (1957), p. 477; Douglass Cater, The Fourth Branch of Government (Boston: Houghton Mifflin Co., 1959); Norman Dorsen and Stephen Gillers, None of Your Business (Baltimore: Penguin Books, 1975); James O. Freedman, "Summary Action by Administrative Agencies," University of Chicago Law Review 40 (1972), p. 1; Ernest Gellhorn, "Adverse Publicity by Administrative Agencies, Harvard Law Review 86 (1973), p. 1380; Edward Newman, "Government and Ignorance," Harvard Law Review 63 (1950), p. 929; Archibald Cox, "Executive Privilege," University of Pennsylvania Law Review 122 (1974), p. 1383. 89. On the Freedom of Information Act, see, for example, Note, " T h e Freedom of Information Act and the exemption for Intra-Agency Memoranda," Harvard Law Review 86 (1973), p. 1047; U.S. Senate Judiciary Committee, Freedom of Information Act Source Book (1974). 90. For conflicting views on just two such participative programs, see John D. Lewis, "Democratic Planning in Agriculture,"American Political Science Review 35 (1951), p. 232, and R. Frieschknecht, "The Democratization of Administration: The Farmer Committee System," American Political Science Review 47 (1963), p. 705 on the farm committee system; and Peter Bachrach and Morton Baratz, Power and Poverty (New York: Oxford University Press, 1970); and Daniel P. Moynihan, Maximum Feasible Misunderstanding (New York: Free Press, 1969), on the Community Action Program of the War on Poverty. 91. See, for example, Wallace Oates, Fiscal Federalism (New York: Harcourt Brace Jovanovich, 1972); Charles E. McLure, Jr., "Revenue Sharing: Alternatives to Rational Fiscal Federalism?," Public Policy 19 (1971), p. 457; and Richard A. Musgrave and A. Mitchell Polinsky, "Revenue Sharing: A Critical View," Harvard Journal on Legislation 8 (1971), p. 196. For a politically sophisticated discussion, see Daniel J. Elazar, "Fiscal Questions and Political Answers in Intergovernmental Finance," Public Administration Review 32 (1972), p. 471. 92. Recent contributions to several perspectives on the electoral college include: Alexander Bickel, Reform and Continuity (New York: Harper & Row Publishers, 1971), chaps. 1 - 2 ; Lawrence D. Longley and Alan G. Braun, The Politics of Electoral College Reform (New Haven: Yale University Press, 1972); Donald R. Matthews, ed., Perspectives on Presidential Selection (Washington: Brookings Institution, 1973), chaps. 7 - 8 ; Neal R. Peirce, The People's President (New York: Simon & Schuster Inc., 1968); and Wallace S. Sayre and Judith Parris, Voting for President (Washington: Brookings Institution, 1970). 93. Recent

discussions

211

of

presidential

primaries

and conventions include: Bickel, Reform and Continuity; Paul T . David, et al., The Politics of National Party Conventions ( W a s h i n g t o n : Brookings Institution, 1 9 6 0 ) ; James W . Davis, Presidential Primaries: The Road to the White House (New Y o r k : T h o m a s Y. Crowell Co., Inc., 1 9 6 7 ) ; M a t t h e w s , ed., Perspectives on Presidential Selection; Judith Parris, The Convention Problem ( W a s h i n g t o n : Brookings Institution, 1 9 7 2 ) ; Nelson W . Polsby and Aaron Wildavsky, Presidential Elections (New Y o r k : Charles Scribners Sons, 1 9 7 3 ) ; Gerald Pomper, Nominating the President (Evanston: Northwestern University Press, 1 9 6 6 ) ; and Austin Ranney, " T u r n o u t and Representation in Presidential Primary Elections," American Political Science Review 66 (1972), p. 21. 94. A convenient recent source for the constitutional-reform proposals is Charles M. Hardin, Presidential Power and Accountability: Toward a New Constitution (Chicago: University of Chicago Press, 1974). T h e party-government position is discussed in Austin Ranney, The Doctrine of Responsible Party Government (Urbana: University of Illinois Press, 1954). For statements of this position, see, for example, Henry Jones Ford, The Rise and Growth of American Politics (New Y o r k : Macmillan Co., 1 8 9 8 ) ; American Political Science Association, Toward a More Responsible Two-Party System (New Y o r k : Rinehart & Co., 1 9 5 0 ) ; E. E. Schnattschneider, The Struggle for Party Government (College P a r k : University of Maryland Press, 1 9 4 8 ) ; James M. Burns, The Deadlock of Democracy (Englewood Cliffs: Prentice-Hall, Inc., 1963). 95. See, for example, James L. Sundquist, " N e e d e d : A W o r k a b l e Check on the Presidency," Brookings Bulletin (Fall 1973) ( W a s h i n g t o n : Brookings Institution), p. 7. 96. Perhaps the best statement of this position is in T h o m a s K. Finletter, Can Representative Government do the fob? (New Y o r k : Harcourt, Brace & Co., 1945). As in most versions of this proposal, Finletter favored concurrent terms for the President and both houses of Congress, failing dissolution—in his case, six years. Discussion of this position and of other, more sweeping, constitutional reforms may be found in, for example, William Y. Elliott, The Need for Constitutional Reform (New Y o r k : McGraw-Hill Book Co., Inc., 1 9 3 5 ) ; and C. Perry Patterson, Presidential Government in the United States (Chapel Hill: University of North Carolina Press, 1947). 97. Among Progressives in the early years of this century, this approach may be found in the thinking of Herbert Croly, The Promise of American Life (New Y o r k : Macmillan Co., 1909), and Progressive Democracy (New Y o r k : Macmillan Co., 1914, who advocated it in state government; and in the practice of W o o d r o w Wilson as President. T h e proposal to admit Cabinet members and other presidential officers to Congress to submit to " p a r l i a m e n t a r y " questioning is a variant barely worth consideration, I think. See Estes Kefauver, " T h e Need for Better Executive-Legislative T e a m w o r k in the National G o v e r n m e n t , " American Political Science Review 38 (1944), p. 3 1 7 ; and, on practical deficiencies of the British question period, Bernard Crick, The Reform

212

of Parliament 1965).

(New Y o r k : D o u b l e d a y & Co., Inc.,

98. Huntington, Political Order in Changing Societies, chap. 2. S o far a s I k n o w , Huntington is not a proponent of abolition of the American separation of powers. 99. Frank J. G o o d n o w , Politics and Administration (New Y o r k : M a c m i l l a n Co., 1 9 0 0 ) ; W o o d r o w Wilson, Constitutional Government in the United States (New Y o r k : Columbia University Press, 1 9 0 8 ) ; and " T h e Study o f A d m i n i s t r a t i o n , " Political Science Quarterly 2 (1887), p. 204. 100. O n this point, see Norton Long, " P o w e r and Administration," Public Administration Review 9 (1949), p. 2 5 7 ; " B u r e a u c r a c y and Constitutionalism," American Political Science Review 46 (1952), p. 808; and "Public Policy and A d m i n i s t r a t i o n : T h e Goals of Rationality and Responsibility," Public Administration Review 14 (1954), p. 61. 101. Rexford G . Tugwell, " I m p l e m e n t i n g the Public Interest," Public Administration Review 1 (1940), p. 3 2 ; and The Emerging Constitution (New Y o r k : Harper's Magazine Press, 1974). 102. Herman Finer, The Presidency: Crisis and Regeneration ( C h i c a g o : University of Chicago Press, 1960). 103. See, for example, the discussion in M. J. C. Vile, Constitutionalism and the Separation of Powers, p. 24. Legislation was then, by derivation from positive necessity and popular sovereignty, a reasonably definite function; but its appropriate scope and contemplation in the shaping of national policy were illdefined in relation to magistracy, prerogative, and adjudication as well as to such local institutions as commissioners, justices and juries. 104. See, for example, Paul Ylvisaker, "Criteria for a 'Proper' Areal Division of Powers," in Arthur M a a s s , ed., Area and Power: A Theory of Local Government (New Y o r k : Free Press, 1 9 5 9 ) ; Leonard D. White, The States and the Nation (Baton R o u g e : Louisiana State University Press, 1 9 5 3 ) ; and Charles E. Gilbert and David G. Smith, " T h e Modernization of American Federalism," in M u r r a y S. Stedman, Jr., ed., Modernizing American Government (Englewood Cliffs: Prentice-Hall, Inc., 1968). 105. For the contrary view, see William H. Riker, Federalism: Origin, Operation, Significance (Boston: Little, Brown & Co., 1 9 6 4 ) ; and "Federalism," in Greenstein and Polsby, eds. Handbook of Political Science, vol. 5. S e e also the following exchange of views on federal institutions as better reflecting public preferences than unitary institutions: William H. Riker and Ronald Schaps, " D i s h a r m o n y in Federal G o v e r n m e n t , " Behavioral Science 2 (1957), p. 276; and J. Roland Pennock, "Federal and Unitary Government—Disharmony and Frustration," Behavioral Science 4 (1959), p. 147. 106. For example, Tugwell, stitution.

The

Emerging

Con-

107. O n practical difficulties in the four-year term, sec Charles O . Jones, Every Second Year (Washingt o n : Brookings Institution, 1967).

The Pennfylvania Packet, am [Price Four-Pence.]

W

W E D N E S D A Y,

Ssm

E , the People of the Unit a more per f e d Union, efta Tranquility, provide for mote the General Welfare Liberty to Ourfelves and our Pofterity Conftitution for the United States of A

ert! Cr

J >

[No. 2C90.]

to form infure domeftic mimon Defence, pro« "ie Bleiiings of eitabliih this

REPORT on the DELIBERATIONS of COMMITTEE III by Gerald Frug and John Honnold PRESIDENTIAL PRIMARIES AND THE DECLINE OF THE POLITICAL PARTY SYSTEM Committee III turned its attention first to the role of political parties in the United States. Although the party system has been the traditional method by which the widely divergent groups in our society have shaped their goals into proposals for government action, the strength of the party system has declined in recent years, as evidenced by the rise in split-ticket voting and the increase in the number of people calling themselves independents. Since a major ingredient of this decline has been the rise in prominence of the direct primary as a method for selecting nominees for President, the presidential primaries became the principal focus of the first session's discussion. Our focus on the presidential primary, the committee felt, could help us determine whether the disadvantages of the diminished role of political parties in one of their central functions, choosing a presidential nominee, were offset by other values. Such a focus also served to delimit what we meant by "political parties." The committee's concern was the quadrennial coalition of groups that form the presidential Democratic or Republican party, and not the different entities that constitute the congressional or state parties. In discussing the presidential primary, the committee first turned to the reasons for its existence, reasons articulated by the Progressive movement where the idea of presidential primaries originated. These justifications for direct primary elections were not cited merely as historical references, however, since a number of committee members asserted their continuing validity. Two basic justifications of the presidential primary system were advanced. First, some stated that the basis of the long-standing anti-party feeling in America—a feeling demonstrated by the pride people take in the saying that they vote for the man and not the party—is the belief that nominees will be

better if selected without party domination of the process. Party organizations, it is said, not only fail to add to the process of selection but cause unnecessary and undesirable factors to enter into the selection process. Secondly, even if it could not be shown that the results of the primary system are better than those achieved b y a party-dominated selection process, there is value in itself in democratizing the presidential selection process. By eliminating the party organization separating the people and the nominating process, government becomes more accountable directly to the people. Those who were concerned about the effect of the emergence of presidential primaries on political parties contended that the logical result of the arguments advanced for the presidential primaries would be the creation of one national primary to select the presidential candidates. Such a device, they asserted, would eliminate an important function that the parties have traditionally served: uniting disparate elements of society behind two competing presidential candidates. T h e party system, by requiring potential candidates to negotiate with the divergent elements that make up modern political parties, has helped to reduce the nation's ideological differences. A national primary, on the other hand, would increase those differences, since primaries normally have low voter turnouts, with those voting having strong ideological views. Reliance on a national primary would therefore threaten to produce candidates not truly representative of a broad range of American opinion. A second argument advanced by those who criticized the direct primary system was that there is a danger that primary results can be determined by style, particularly style on television, without adequate reference to substantive programs. T h e committee was referred to the then ongoing process of choosing a new British prime minister. There, the candidates were being screened by fellow members of the parliamentary party, people familiar with their capabilities and views. Thus, it is likely that a candidate would be selected on his record, without reference to matters of style. T h e primary system, on the other hand, offered such rewards of publicity that people were likely to run simply for public exposure. Indeed, the amount of this exposure itself may determine the outcome. Such a process is not likely to eliminate undesirable candidates or to attract to the race candidates capable of the job but wary of the primary process. A final argument against the diminished party role in the nominating process was that a meaningful and effective choice by voters was diminished as well. Presenting the electorate with policy choices was less likely to be achieved in the state-by-state media campaign engendered by the primary system than it would be by the formation of coalitions within a party to gain nomination. Such a lack of content in the electoral choice engenders apathy, weakening the democratic process itself. It at the same time complicates the ability of a President once elected to work with Congress, since the absence of a strong party tie might further fracture the government process, leading to divisions which would undermine the ability to govern.

216

Gerald Frug and John

Honnold

T h o s e who argued in favor of the presidential primary system responded to the arguments in favor of a party role in the nominating process in a number of ways. First, they argued that cohesiveness between the President and Congress based on party ties rarely existed and, when it did, often was undesirable. Secondly, they found the attack on the primary system fundamentally anti-democratic in tone, based on a reluctance to let the people decide themselves on the candidates. Finally, they questioned the proposition that a primary system prevented the adequate formulation of issues. T o the extent that the party was a method of articulating a set of governmental objectives, they argued, the party system was not in a decline. Rather, the decline was in the party as an organization. Party philosophy still affected the voters, and the building of a governing consensus within a party can best be made by allowing a candidate to form coalitions by attracting voters. T h i s process not only increases interest in politics, but also encourages the type of entrepreneurial candidate—the outsider—whom we ought to encourage. T h e choosing of an insider, as in Britain, may not always be desirable. T h o u g h the debate was by no means resolved, there seemed to be a good deal of support from people supporting both points of view for what might be considered a compromise position, a system of regional presidential primaries. Such a plan envisions a series of state primaries on a given day in one region of the country, with other regions holding similar primaries over a period of several weeks. Such a system would allow a second look at the candidates after a first vote, so that new coalitions could form and new candidates could emerge. It also would cut down on campaign costs. M o s t importantly to some, it would permit the continued existence of a type of uncommitted delegate—either elected on a no preference or favorite son s l a t e — w h o could help stabilize and direct the selection process at a convention. Some saw this kind of regional primary as a way to create a balance between the role of the primary system and of the party system in candidate selection.

THE SEPARATION OF POWERS: EXCESSIVE DELEGATION OF CONGRESSIONAL POWER TO THE PRESIDENT A number of committee members were concerned that effective operation o f government required an improved working relationship between Congress and the President. Some argued that the method of achieving this result should be greater congressional control over presidential decisions; others saw instead the need for greater presidential power to gain congressional support for his program. T h e s e inconsistent approaches to a more unified government program both rested on a common assumption: that intergovernmental conflict could threaten the ability of the government to function effectively. Although no committee member argued for a strengthened party system as the principal device for easing this conflict, some felt that greater weakening of the party system would dangerously exacerbate the system's current difficulties.

Deliberations of Committee III

217

The aspect of this problem most extensively discussed by the committee was the excessive extent of legislative delegation of power in recent times to the executive branch. Although some saw hopeful signs of reversing this increase in delegated authority because of the recent formation of congressional budget committees' and the rising influence of party caucuses in developing policies independently of presidential initiative, others argued that the tendency remained for Congress to leave major decisions to the executive. While this tendency derives at times from a congressional determination that details of policy must of necessity be filled in by executive implementation, it stems at other times from the inability of Congress to decide what its policy or program ought to be. The result too often is that Congress merely says to the President: here is a problem—do something about it. Some committee members felt than an extensive amount of delegation to the executive was inevitable, since details could never be adequately decided in advance. In addition, as long as the basic constitutional structure of prohibiting legislators from serving as administrators of public policy remains, 2 there can be no effective congressional role in formulating specific policy through participating in implementation. The issue then became whether there can be a congressional role in policy formulation after policy implementation by the executive has begun. A number of committee members argued that Congress can adequately reassert its authority through legislative oversight of executive action. Given the recently strengthened congressional committee system caused by the decline of its baronial structure, Congress can review how the executive is administering its policies and, through an informal but important give and take, can cause the modification of these policies. Congressional oversight, therefore, allows sufficient latitude for executive discretion, but provides Congress with the ability continuously to monitor and check the exercise of that discretion. Other committee members felt that congressional oversight was an insufficiently powerful tool to control executive action. First, they argued, oversight could be effective only in those cases of delegation in which Congress had agreed on a policy and had delegated only the details of implementation. In those cases in which delegation simply reflected the fact that Congress had never formulated a policy, congressional oversight could not enforce a nonexisting congressional mandate. If a policy dispute between a committee of Congress and the executive agency arose in such a case, there would be no method for resolving it. Only a new act of Congress could effectively cause the executive to change the policy Congress authorize him to adopt. Another troubling result of these types of policy disputes is that recently they have often ended in litigation, thus transferring to the courts the task of determining the policy Congress failed to define. Although some saw this attempt to shift important political issues to the nonpolitical branch of government as an

218

Gerald Frug and John

Honnold

inevitable feature of democratic systems, many felt it to be an inadequate and undesirable method of checking on administrative abuse. The Employment Act of 1946 3 was cited as an example of a delegation of congressional power without adequate definition of policy, leaving Congress unable to check executive policy by oversight. Surely, it was argued, the courts cannot specify congressional policy in such a case. A second problem with reliance on congressional oversight raised by committee members is that even when it can be effective—where Congress has formulated a policy—oversight may come too late, since many executive actions taken are irreversible. Although Congress could correct future abuses in those cases in which policy development is slow and time consuming, in other situations, particularly those involving foreign affairs, executive action may be taken so quickly and be so final that no congressional role is possible. The result is executive domination of government policy. Finally, since oversight is not widely seen as a glamorous part of the congressional function, some feared that oversight would simply be left to congressional staff. The result would be the undesirable situation of one nonelected group of individuals, working for Congress, negotiating with another nonelected group of individuals, working for the President, with their agreement resulting in government policy. This was not seen as an acceptable method of public policy decision-making. Those unsatisfied with reliance on congressional oversight sought ways to force Congress to formulate policy adequately prior to its enactment of legislation. O n e approach suggested was the resurrection of the dormant judicial doctrine of unconstitutional delegation of legislative power. 4 In some cases, Congress should not be allowed to evade its constitutional responsibility to set government policy, and if it tries to do so, the courts should invalidate its delegation of power to the executive. Congress then would be forced to formulate its policy more specifically when it reconsidered the legislation. Another suggestion was the addition of a provision in some legislation for the automatic termination of the legislation at a given date. This device would force Congress to periodically take a look at its programs. In this way, after the executive has had a chance to implement the legislation for a number of years, Congress would be able to specify more clearly its own objectives, thus narrowing executive discretion. The committee also noted the increasingly common provision for a one-house veto of executive action, or even a congressional committee veto of such an action. The constitutional difficulties in relying on these schemes were considered too serious to see them as a solution to the need to check executive discretion. 5 One committee member felt that none of the proposals for recapture of congressional power over policy formulation dealt adequately with the magnitude of the problem. In light of the recent experience during Watergate, he argued, there is a need for congressional ability to force

Deliberations of Committee III

219

a President from office if he is incapable of governing. If the President was handling an economic crisis badly or ineptly managing a war, the Constitution now permits no effective change until the years remaining to the end of the presidential term have passed. Incompetence is not an impeachable offense, and there may be no physical or mental breakdown of the incumbent to bring the 25th Amendment into effect. 6 Such an inability to alter disastrous presidential policies, he argued, was intolerable. One method for preventing such an eventuality was a constitutional amendment giving Congress the power to vote no-confidence in the President, thus forcing him to seek reelection. To ensure that such a vote would not lightly be used, the entire Congress, Senate and House, would be required to seek reelection at the same time. Although use of such a power may be rare, recent events demonstrate that a crisis can arise which may lead Congress to be confident enough of the seriousness of the crisis and of its own position to force a new election. ALLOCATION OF GOVERNMENTAL POWER BETWEEN THE NATION AND THE STATES The committee recognized that at the Constitutional Convention of 1787 it was possible to secure agreement on a stronger national government only by dividing power between the nation and the states—i.e., a "federal" structure. The committee devoted a session to structural problems that have developed as governmental programs have multiplied for the nation and for the states and, most especially, for cities and metropolitan regions. Erosion of General-Purpose Government and of Local Controls The keynoter referred to the progressive erosion of general-purpose government. Part of this erosion has resulted from the creation of special-purpose institutions such as urban-renewal authorities and regional health-planning councils. It was suggested that this development tends to undermine the capacity of the people affected by these programs to participate in the shaping of policy. There were strong pressures toward special-purpose institutions but, in the view of the keynoter, these pressures should be resisted. Attention should be given to ways to enhance popular participation in the shaping of policy at the local level. This would also lighten the load of decisionmaking at the national level. The national government has become overburdened; wherever feasible, decision-making should be redistributed to local units. The keynoter added that in the last fifteen years there has been a striking change in intergovernmental relations. 7 Federal grant policy has produced quasi-governments—private organizations with governmental functions. Attention was drawn to the following dilemma: we need planning at the regional level for health care and other local problems. But we do not have a structure of government at the regional level to control these programs. 8

220

Gerald Frug and John Honnold

T h e keynoter observed that a second significant aspect of the federal system of grants is a pattern whereby grants are made directly to local governments without reference to the states. 9 O n e member observed that it was important to distinguish between two kinds of governmental functions: regulatory functions and those that are predominately the supplying of services. It was suggested that the states are needed to check discriminatory or corrupt behavior of local governments. T h e supplying of services has become increasingly important. T h e crucial problem, when localities must supply the services, is that the sources of tax revenues are not located at the places of greatest social need. T o coordinate tax resources with the need for services, the taxing function must be heavily concentrated on the basis of national uniformity. W h e n the funds are allocated to local communities on the basis of need, one faces inevitably a separation of the responsibilities to impose taxes and to spend the money. Congress could b e expected to establish general standards for the use of funds but, as one member observed, experience in the health-care field indicated that general oversight over expenditures was adequate. T h e problem of oversight would be more acute if a private group were given regulatory power. National or Local G o v e r n m e n t : A D i l e m m a ? Some committee members supported the view that, wherever possible, functions should be allocated to smaller, local groups. It was suggested that important values are inherent in the nature of the political process itself, and that these values may be as precious as any concrete results that could be produced by the governmental process. O n e of these values is the creation of a wide variety of decisionmaking centers—units that can try projects on a subnational scale. It was noted that in many instances, the states and localities had served as laboratories for testing ideas; this testing sorted out projects that were useful from those that had theoretical appeal but presented unforeseen problems of implementation. O t h e r members of the committee responded to the suggestion that one should rely more heavily on the states and localities. This suggestion overlooks the fact that the federal government has taken on problems, such as relief, only because the states weren't doing the job. 1 0 T h e r e is no expectation that m a n y of the states will ever be able to deal adequately with problems such as education and health. In these states, without national assistance, adequate education and health would be denied to entire generations. In addition, it would be an over-simplification to consider merely which governmental unit should do the j o b ; the choice between governmental units determines whether the job would be done. Analytically, one might conclude that education is a local problem. 1 1 But this decision would mean that the strongest resources cannot be tapped for education, with the result that there would be less education. T h i s is borne out by the fact that upper-income taxpayers, who are hit hard by national

Deliberations of Committee III

221

taxes, have generally opposed national programs, while people needing services are in favor of national programs since the national government has the money for financing. T h i s exchange of views recalled the distinction, mentioned earlier in the discussion, between (1) gathering and distributing revenue and (2) shaping and administering programs for the supplying of services. It seemed that the concerns of many members of the committee would be met if the federal government would provide the funds while the states and localities shaped and administered the programs supplying public services. A member of the committee suggested that at both national and local levels, planning in respect to governmental programs often proceeded in the dark for lack of basic information. It was suggested that there was need for independent or institutional fact-finding and for analysis of the facts on a systematic basis; reference was made to the work done by the congressional budget group and the Brookings Institution. Without such advance study, programs are launched without any solid basis for predicting the results of the new programs; this leads to disappointment and waste of resources. Governmental Units Shaped for the Size of the Problem A member of the committee noted that in allocating authority to different governmental units, one might conclude that a separate governmental unit should be constructed for each problem. Thus, for water planning one would create a water basin authority; for air pollution, a different area; and for sewage disposal still another area. But this approach, in spite of its theoretical appeal, is impractical since too many governmental units are created for effective political control. The only practical approach is to use geographical units with boundaries which are rough compromises so that a governmental unit will do reasonably well for a wide range of functions. In support of this approach, it was noted that a large metropolitan area needs to develop a unified approach to a wide variety of problems such as the following: health-care delivery; water pollution; water basin administration; air pollution; education; transportation from home to place of employment and to public services; access to housing. Another member of the committee pointed out that in allocating functions between state, regional and local bodies, it was important to define precisely the function to be performed and that it was inadequate to speak in general terms of transportation or pollution or health. For example, the state of Pennsylvania can handle the pollution problem in the Schuylkill River but not in the Delaware River. T h e committee then turned to problems of government presented by urban areas which cut across state lines; examples mentioned were the metropolitan areas surrounding Kansas City, Chicago and New York City. It was noted that municipal governments depend for powers upon the state, 1 2 and that there is no governmental unit

222

Gerald Trug and John

Honnold

with power to deal with metropolitan problems on a unified basis. It also was noted that some of the most critical social and governmental problems of today are concentrated in such metropolitan areas. T h e problems are aggravated when one of these states offers low tax rates to encourage affluent persons to move to or stay in that state. This leads to further cleavage between the people who have money and the people who need services. Unsolved social problems in one area (such as the center city) lead to ever-increasing flight to the suburbs, so that the fiscal and social problems in the city become unmanageable. In this setting, cities have been appealing urgently for federal help. However, national legislatures have been reluctant to pour adequate funds into the cities. A member of the committee pointed out that, within a metropolitan region, many problems are interrelated. For example, effective healthcare delivery may depend on the establishment of a transportation system that allows the disadvantaged to reach available clinical facilities. In addition, within a water basin it is important to deal on a unified basis with recreation, potability of the water supply and the use of the drainage system for the removal of wastes. It was suggested that such interrelated problems needed to be dealt with by a water basin authority. 1 3 Population Density: A Subject for Control? Concentrating the population in urban centers, one member observed, had proved to be a social disaster. It was suggested that it would be poor national policy to encourage the continuation of such concentrations of the population. If such concentrations were not subsidized, the population would tend to disperse and more viable social units would emerge. It was suggested that the migration of peoples to seek better living conditions—Europe to America; from the East to the W e s t ; from the farms to the cities—had played a vital part in the nation's development. In fact, migrations now seem to be taking place which are reversing the earlier movement from the rural South to the northern and eastern industrial centers. One view laid before the committee was that since migrations of economic units and of individuals were the source of serious social problems, direct control over relocations of businesses and individuals might be considered. T h e committee was generally of the view that direct control over the movement of individuals created unacceptable problems of administration and of human rights. Constitutional protection is now given to freedom of movement, 1 4 and it would be unwise to remove such constitutional protections. And direct controls were considered unnecessary, since zoning could prevent excessive congestion of business and residential units. It was also noted that tax subsidies could be given to industries which located in areas of unemployment or economic underdevelopment. It was noted that these latter indirect measures avoided the problems of administration and of human rights that would be presented by attempt to control directly the movement of peoples or businesses.

Deliberations of Committee III

223

Interstate Compacts for Regional Problems: Can Control be Given to the Region? In connection with the problems of regional governmental units, it was noted that several regional problems have been approached by way of interstate compacts. It was recognized that the Constitution (Art. I, Sec. 10, CI. 3) permits such interstate compacts with the approval of Congress. It was noted, however, that no way had yet been found to establish a regional constituency to control such programs. The following question was posed for the committee's consideration: under the Constitution, would it be possible to give voting power to the people of a metropolitan, interstate region and thereby establish regional control over the program? Examples were given of regional bodies that had run into serious difficulties for lack of a political unit or constituency to exercise oversight and control. Several members of the committee were of the view that strengthening the governmental powers of regional units would be useful, and that there seemed to be no obvious barrier in the Constitution. On the other hand, it was noted that there were serious political barriers resulting from the reluctance of states to enter into such a compact. In addition, implications from the basic structure of the constitutions of the states might bar such reallocation of political powers. These difficulties lead to a further question: in the absence of state approval, would the federal government have the power to establish such regional limited-purpose governmental units? The experience of the Tennessee Valley Authority was considered, but it appeared that the T V A had not been provided with a regional constituency with voting power to control its programs. It was noted that various national programs had included provisions for approval of specific programs by local groups. It was suggested that if the program could be controlled from Washington there should be no legal barrier to relinquishing some of that control to a locality. It was suggested, however, that an attempt by the national government to confer special taxing power on a locality would present difficulties under the Constitution in view of the limitation on the national taxing power (Art. I, Sec. 8) that "all Duties, Imposts and Excises shall be uniform throughout the United States." 1 5 On the other hand, it was suggested that this difficulty might not be fatal. Some regional authorities can raise revenues by charging for services (e.g., bridge or tunnel tolls); where such revenues are insufficient, funds could be provided through grants from the national government. THE EFFECT OF GOVERNMENT ORGANIZATION ON ITS ABILITY TO FORMULATE POLICY In its fourth session, the committee turned to another problem caused by our system of separation of powers. The fear was expressed that our current governmental system fails to provide a way to decide

224

Gerald Trug and John Honnold

m a j o r g o v e r n m e n t policies or to plan f o r an increasingly complex future. In discussing this aspect of the shaping of public policy, the committee turned first to the problems of policy formulation at the state level. A l t h o u g h m a n y people feel that most government policy o u g h t to b e m a d e at the state and local level, the governmental system itself f r u s t r a t e s this objective. State legislators, generally w i t h o u t staff a n d inadequately paid, cannot effectively exercise their responsibility to decide local policy issues. Moreover, most state and local executives also c a n n o t f u n c t i o n effectively. If they seek aggressively to solve local problems, the regressive local tax system and the danger of forcing taxpayers and industry to move to other jurisdictions u n d e r c u t their ability to do so. Too o f t e n the result of aggressive policy is that those w h o a d o p t it find themselves unable to win reelection. Inadequacies at the local government level thus help explain w h y vast a m o u n t s of responsibility have been transferred to the federal executive, not only by Congress but by the states as well. T h e states have tended to a b a n d o n their roles of policy formulation and implementation to become special pleaders for federal f u n d s . W h e n these responsibilities end up at the federal executive level, however, they are handled by an executive branch divided between politically responsive administrators and career civil servants. Reference was m a d e to the political administrators such as the assistant secretary of a cabinet d e p a r t m e n t ; usually his term of office is too short to enable him to learn about, let alone deal with, the problems he faces. An additional problem is that to the extent one appoints officials w h o already have expertise in the field in question, one brings into the g o v e r n m e n t , along with the expertise, a built-in conflict-of-interest. T h e individual, having come f r o m the private sector being regulated, will likely return to the same industry. T h i s problem is particularly severe for the independent regulating agencies, where the likelihood of careful appointment is diminished and the chance is increased of the agency becoming a captive of the regulated industry. T h e result is that policies contemplated in the creation of the agencies are t h w a r t e d by the n a t u r e of the personnel hired to implement them. Some felt that the problems of conflict-ofinterest in administrative agencies are so severe that a return of m a n y functions n o w handled by the independent agencies to cabinet officials responsible to the President would be desirable. T h e basic p r o b lem, however, would r e m a i n — o u r political leadership constantly changes. N o sooner has an official learned his job, than the turnover caused by a presidential election puts another person in it. Beneath the layer of political leadership is the career civil service. Although m a n y committee m e m b e r s expressed concern that the u n r e sponsive n a t u r e of g o v e r n m e n t was enhanced by the civil service system, the committee did not have a chance to explore the issue adequately. Simply stated, the problem is that while sometimes people are pleased w h e n the civil service continues to function while

Deliberations of Committee III

225

the country's political leaders are disabled by crisis, as in 1974, at other times this fact gives us reason to wonder whether either the President or the Congress actually controls the operation of government. As an example of the problems of conflict between the goals of political leadership and established government interests, the committee discussed an issue taken from the local level, the desire to strengthen metropolitan governments. The movement toward regional government in this country has been undermined by the strength of provincial interests seeking self-preservation, interests epitomized to one committee member by volunteer fire departments. Of course, the deeply felt need to control government locally is often constructive, but the fact that no political leadership has been able to curb the entrenched power of local interests, even when metropolitan solution is preferable, underscores the staying power of the current system of governmental organization. 16 Given the inadequacies of state and local government, the divided structure of the federal executive branch, and the conflict between the legislative and executive branches discussed earlier, the critical issue of governmental effectiveness today is whether this governmental system can deal with today's complex problems, such as economic and energy policy. The issue, in short, is whether government as presently constituted can plan. The need for such planning was widely accepted by the committee, with the recognition that the extent of government planning and the extent of governmental intervention into the private sector are two separate matters. Indeed, unexplained and unarticulated governmental intervention was often seen as more dangerous than intervention based on an articulation by the government of its goals and objectives. Planning, then, was supported generally not as a form of gazing into a crystal ball, but as a way of forcing the government to articulate objectives and alternative means of reaching those objectives. Such a plan would serve as a way to educate the public and the Congress, enabling them to formulate policy. Of course, the ability to plan assumes the existence of data—a healthy assumption as some observed—but many felt that such data would never be acquired until the decision to plan is made. If one accepts the need to plan, the question remains: can our government plan? And if it can, can that plan be implemented? On the capacity of the government to plan, some saw signs of encouragement. The Humphrey-Hawkins Full Employment and Balanced Growth Act 17 was seen as an example of a congressional attempt to define broad objectives of government policy and to require the executive to submit plans to meet those objectives. Congress would retain the power to evaluate the plan once formulated. In the bill, planning is thus properly recognized as an executive function, but an important congressional function remains—the power to force revisions in the plan. Some saw greater difficulty in the prospect of a plan being implemented, because Congress has not generally organized itself to con-

226

Gerald Frug and John Honnold

sider a complex piece of legislation as a whole. Rather, numerous individual committees normally review individual proposals, fracturing the process and the hope of an overall attack on a problem. T h e new congressional budget process, 1 8 however, was noted as an example to the contrary, a process encouraging congressional selfdiscipline and allowing an overall congressional proposal to emerge. T h e ability to implement a plan is, of course, always complicated by the fact that our democratic process allows constantly changing values, so that any plan once formulated is subject to modification or abandonment as our values change. W h i l e some saw this a reason for pessimism, others reminded the committee that ours is the oldest functioning democratic government in the world, with democracy today being rare at any age. T h e vitality of the system over 2 0 0 years gave some reason to hope that these future challenges can be met as well.

CITIZEN PARTICIPATION IN AND CONTROL OVER GOVERNMENT T h e final session of the committee was devoted to ways in which citizens can influence government—in other words, the implementing of the democratic ideal. T w o aspects were considered: first, ways to enhance direct participation in the processes of government; second, ways to strengthen control through the ballot.

Direct Participation Citizen participation, apart from the ballot, has been encouraged in recent years by legislative provisions for public hearings before programs are finalized. An early development was the community action program under the Office of Economic O p p o r t u n i t y ; 1 9 more recent instances have been provisions for hearings with respect to environmental problems, and the use of federal funds allocated under revenue sharing programs. 2 0 Members of the committee reported that citizen involvement and influence under these programs had been disappointing. Some noted that the public had not been given adequate notice of the opportunity to participate in public hearings; in addition to providing a formal notice buried in a newspaper, invitations should be extended to the public by announcements on radio and television. O t h e r s suggested that public involvement was limited because of the difficulty of becoming informed about the complex issues involved in public programs. It was also reported that when citizens did present informed views and suggestions they were disappointed and frustrated since there was little indication that officials took account of the citizens' views. O n e suggestion was that officials be required to accompany their decisions with responses to the views that citizens had presented; on the other hand, it was noted that this would merely add to the present overwhelming mass of paperwork, and might contribute to further

Deliberations of Committee III

227

delays and add to the opportunities for obstructive legal attacks. T h e courts, it was observed, had limited capacity to solve governmental problems; excessive demands were being made on the courts to deal with issues that should be resolved through the political processes. T h e committee turned to the role of public interest organizations such as the League of Women Voters, Common Cause, the National Women's Political Caucus, environmental groups and similar citizens' organizations. It was noted that organized pressure by interest groups had long played a significant part in American political life. A significant development in recent years was the attention given issues affecting larger numbers of people, such as the quality of the environment and protection for consumers; even more basic was the attention given issues involving the structure of political processes, such as public financing of elections, and conflicts-of-interest by congressmen. It was noted that public interest groups have little direct impact on votes in the legislature; their major influence was exerted indirectly, by informing voters of current issues so voters could write to congressmen and express an informed choice at elections. It was also noted that conscientious legislators who wanted to make principled decisions on public issues were grateful for the studies and recommendations of groups who were devoted to the public interest. Do public interest groups really reflect the views of their members? In response to this question one committee member reported that he had noted instances where the position of the group had been decided by the leaders with little advance consultation with the members. Representatives of public interest groups acknowledged that advance consultation was not always feasible. T h e general objectives of the organization are known at the time that individuals join; on current issues that arise thereafter the procedures for consultation with members were being improved, but could not always be used with respect to specific steps to further the general objectives of the group. Did the public interest groups divert citizens from participation in party politics? Contrary to this suggestion it was observed that the public interest groups mobilized citizens who were not active in politics. On the other hand, it was noted that television and public financing of elections had made it easier for new groups to take the lead in political campaigns. Were there dangers in democratic pressures? One member reported that insistent demands for added services and benefits had, at least in New York, led to fiscal disaster. W a s it possible to mobilize groups that were interested in long-range issues such as solvency? It was noted that the state and federal government, in helping the city, had imposed controls; the committee also recalled its earlier discussion of the need for larger governmental units for metropolitan regions. Structures for Voting and for Representation The committee also considered proposals for legislative or constitutional changes: universal registration of voters; modification of con-

228

Gerald Trug and John

Honnold

gressional terms; disclosure by candidates and legislators of financial interests; the method of selecting the Vice President. Could wider participation in elections be aided by changes in the process of voter registration? It was noted that many voters were unaware of the deadlines for registration, or did not have the initiative to register in advance of elections. Proposals have been made for simpler registration (e.g., by postcard) or by compulsory universal registration by a door-to-door canvassing comparable to the census. In the past, objections to such proposals had come from varying quarters: from a party that anticipated that the new voters would tend to vote for the opposing party; and from political leaders who were secure in their position with the registered voters and who feared that adding a new group of voters might have an unsettling effect. Most members of the committee favored measures to widen voter registration, and thereby facilitate a larger turnout in elections, although it was recognized that these measures could not be expected to improve the quality of participation in the political process. The committee considered proposals to modify the terms in office of members of Congress. One suggestion, which would require a constitutional amendment, would place an outside limit on the number of consecutive terms: e.g., a limit of six or seven terms for representatives and two or three terms for senators. 21 It was suggested that this would dislodge entrenchcd members and would make legislators more responsive to the voters. It was observed that some of these objectives had been met by recent inroads on seniority as a basis for committee chairmanships. In addition, a limit on the number of terms curtailed the use of accumulated experience, and would override the wishes of the electorate who would prefer to reelect their representative. Most members of the committee did not favor this proposal. Another proposal, also requiring constitutional change, 22 would extend the terms of members of the House to four years. It was noted that under such a proposal, a significant issue was whether the representatives would be elected at the same time as the President or in the middle of the President's term of office. The first alternative would encourage unity between the President and Congress; the second would encourage independence of Congress. It was noted that most congressmen favored the second alternative. The basic proposal for a four-year term was supported on the ground that congressmen now must spend too much of their time campaigning for reelection; in addition, the present two-year term renders congressmen vulnerable to pressures and makes it difficult for them to support measures (like energy conservation) which sacrifice instant gratification for long-range goals. On the other hand, most members of the committee opposed the proposal on the ground that it would make Congress less responsive to the electorate. The Senate, by its six-year term, provided adequate independence; the House of Representatives in contrast, should be closely responsive to the people.

Deliberations of Committee III

229

T h e committee turned to proposals that would require congressmen (as candidates and while in office), as well as administrative officials, to make public disclosure of their income and its sources, and possibly of their assets. It was noted that disclosure requirements could be implemented more readily with respect to persons appointed to public office since legislation could disable them from acting in situations where there was a conflict of interest. A congressman, elected after full disclosure, could not be barred from voting without disenfranchising the voters who elected him. It was suggested that for elected officials, disclosure played its most significant part during a campaign. There was considerable support for some disclosure requirements for legislators, as well as for administrators, but no decision was reached as to the most appropriate scope of disclosure. Should the officials' federal income tax returns be made public? It was noted that requiring disclosure of the complete tax return presented problems, since the return may include confidential and irrelevant material such as medical deductions and charitable contributions. In addition to current income, should total assets (such as ownership of land or corporate securities) be disclosed? O n e view was that disclosure of income should be sufficient. O n the other hand, it was noted that assets that did not generate current income might give rise to conflicts-of-interest. It was agreed that measures for public disclosure were important, and deserved further attention. Finally, the committee considered procedures for selection of the Vice President. It was noted that current procedures can result in hasty and unrepresentative action, with serious consequences when the Vice President must assume the office of President. Attention was given to a proposal that only a President be elected; the President would then nominate a Vice President who would be subject to confirmation by both houses of Congress, as under the 25th Amendment. 2 3 In view of the limited time for consideration, no final position was taken. T h e committee, however, concluded that it was important that further attention be given to the procedures for selection of the Vice President, and that the need to improve the present procedures might well justify amendment of the Constitution. It was also agreed that, under these proposals, the Vice President should become an active member of the administration, so that he would be informed and experienced in the event he must assume the presidency.

230

Gerald Frug and John

Honnold

NOTES 1. T h e C o n g r e s s i o n a l B u d g e t a n d I m p o u n d m e n t Control Act of 1974, P.L. 9 3 - 3 4 4 ; 8 8 Stat. 297, 31 U . S . C . ; sec. 1 3 0 1 et seq. 2. U n i t e d S t a t e s C o n s t i t u t i o n , A r t . I, sec. 6, cl. 2. 3. 1 5 U . S . C . , sec. 1 0 2 1 , et

seq.

4. Panama Refining Company v. Ryan, 2 9 3 U.S. 3 8 8 ( 1 9 3 5 ) ; Schechter Poultry Corporation v. U.S., 2 9 5 U . S . 4 9 5 ( 1 9 3 5 ) ; see g e n e r a l l y , J a m e s O . F r e e d man, "Delegation of Power and Institutional C o m p e t e n c e , " University of Chicago Law Review 43 ( 1 9 7 6 ) , p. 3 0 7 ; J. Skelly W r i g h t , " B e y o n d D i s c r e t i o n a r y J u s t i c e , " Y a l e Law Journal 8 1 ( 1 9 7 2 ) , p. 5 7 5 . 5. S u c h a p r o c e d u r e c a n t a k e t h e f o r m o f e n a b l i n g o n e h o u s e of C o n g r e s s o r o n e c o n g r e s s i o n a l c o m m i t t e e to v e t o p r o p o s e d r e g u l a t i o n s o r e v e n w o r d i n g of s u c h r e g u l a t i o n s w i t h o u t affirmative c o n g r e s s i o n a l a c t i o n . See g e n e r a l l y , H . L e e W a t s o n , " C o n g r e s s Steps O u t : A L o o k a t C o n g r e s s i o n a l C o n t r o l of the E x e c u t i v e , " California Law Review 6 3 ( 1 9 7 5 ) , p. 9 8 3 . 6. U . S . C o n s t i t u t i o n , Feb. 1 0 , 1 9 6 7 ) .

25th

Amendment

(Ratified

7. S t e i n b e r g , State Involvement in Federal-Local Grant Programs ( A d v i s o r y C o m m i s s i o n on I n t e r g o v e r n m e n t a l R e l a t i o n s ) , pp. 1 - 2 , 1 0 - 1 1 ( 1 9 6 9 ) . 8. For m a t e r i a l s d e a l i n g w i t h s o m e of the p r o b l e m s a n d s u g g e s t e d s o l u t i o n s , see F r a n k I. M i c h e l m a n and T e r r a n c e S a n d a l o w , Goz'ernmcnt in Urban Areas, (St P a u l : W e s t P u b l i s h i n g C o . , 1 9 7 0 ) , pp. 8 1 5 - 3 4 . 9. A c c o r d i n g to o n e s t u d y , t h e r e w a s a n a c c e l e r a tion of g r a n t - i n - a i d p r o g r a m s b e g i n n i n g in 1 9 6 1 . T h e s e direct f e d e r a l - l o c a l p r o g r a m s included c o m m u n i t y h e a l t h s e r v i c e s for c h r o n i c a l l y ill and a g e d , air pollution, n e i g h b o r h o o d y o u t h c o r p s , equal e m ployment opportunity, law enforcement, urban beautification, a n d m o d e l cities. See S t e i n b e r g , State Involvement in Federal-Local Grant Programs. 10. See S t e i n b e r g , Local Grant Programs,

State Involvement at pp. 1 0 - 1 5 .

in

11. For d i s c u s s i o n f r o m the point of v i e w stitutional law, see, f o r e x a m p l e , Milliken v. 4 1 8 U.S. 7 1 7 , 7 4 1 - 4 2 ( 1 9 7 4 ) ; San Antonio ent School District v. Rodriguez, 4 1 1 U.S. 44 ( 1 9 7 3 ) ; Epperson v. Arkansas, 393, U.S. (1968).

Federalof c o n Bradley, lndepen1, 4 0 , 97, 104

1 2 . T h i s principle is c o m m o n l y k n o w n a s Dillon's Rule. See M i c h e l m a n a n d S a n d a l o w , Government in Urban Areas at pp. 2 5 2 - 5 5 . 1 3 . F o r a n e x a m p l e o f a n i n t e r s t a t e w a t e r basin a u t h o r i t y , see t h e D e l a w a r e R i v e r B a s i n C o m p a c t , A c t o f S e p t e m b e r 2 7 , 1 9 6 1 . P.L. 8 7 - 3 2 8 ; 7 5 S t a t . 6 8 8 ; N.J. Stat. A n n . , sec. 3 2 ; 1 1 0 - 1 ( 1 9 6 3 ) ; 3 2 P.S., sec. 8 1 5 . 1 0 1 ( 1 9 6 1 ) ; Del. C o d e A n n . 7 ; sec. 6 5 0 1 , 6 5 1 1 ; E C L , sec. 2 1 - 0 7 0 1 to 2 1 - 0 7 2 3 ( M c K i n n e y ' s 1 9 6 1 ) . For

Deliberations of Committee III

a g e n e r a l d i s c u s s i o n of the C o m p a c t , see B r u c e Ackerman and James Sawyer, " T h e Uncertain Search for E n v i r o n m e n t a l P o l i c y : Scientific F a c t f i n d i n g and R a t i o n a l D e c i s i o n m a k i n g A l o n g the D e l a w a r e R i v e r , " University of Pennsylvania Lato Review 120 (1972), p. 4 1 9 . 1 4 . T h e right of i n t e r s t a t e travel o r f r e e d o m of m o v e m e n t h a s r e p e a t e d l y been r e c o g n i z e d a s a b a s i c c o n s t i t u t i o n a l f r e e d o m . See, for e x a m p l e , Memorial Hospital v. Maricopa County, 4 1 5 U.S. 250, 254 ( 1 9 7 4 ) ; Dunn v. Blummstein, 405 U.S. 330, 338 ( 1 9 7 2 ) ; United States v. Gurst, 3 8 3 U.S. 7 4 5 , 7 5 8 ( 1 9 6 6 ) ; and Edwards v. California, 3 1 4 U.S. 1 6 0 , 1 6 3 ( 1 9 4 1 ) . 1 5 . T h e u n i f o r m i t y e x a c t e d by the C o n s t i t u t i o n is g e o g r a p h i c a l u n i f o r m i t y . It h a s long been settled that within the m e a n i n g o f the u n i f o r m i t y c l a u s e a t a x is u n i f o r m w h e n it o p e r a t e s on the subject m a t t e r with the s a m e f o r c e a n d effect in e v e r y s t a t e in w h i c h the s u b j e c t of the t a x is found. See Fernandez v. Wiener, 2 3 6 U . S . 3 4 0 , 3 5 9 ( 1 9 4 5 ) ; In re Estate of Bonash, 432 F.2d 3 0 8 ( 9 t h C i r . 1 9 7 0 ) . 16. See generally. Note, ' T h e Urban C o u n t y : A S t u d y o f N e w A p p r o a c h e s to Local G o v e r n m e n t in U r b a n A r e a s , " Harvard Law Review 7 3 ( 1 9 6 0 ) , p. 5 2 6 . P a r t o f the p r o b l e m involves the effect o f legislative a n d c o n s t i t u t i o n a l h o m e rule p r o v i s i o n s , as well a s the e x i s t e n c e o f a d v e r s e local political c o n ditions. 1 7 . P.L. 9 5 - 5 2 3 , 9 2 Stat. 1 8 8 7 , 27 O c t o b e r 1 9 7 8 . 18. T h e Congressional Budget and Impoundment A c t of 1 9 7 4 , P.L. 9 3 - 3 4 4 , 88 Stat. 297, 31 U . S . C . , sec. 1 3 0 1 et seq. 1 9 . E c o n o m i c O p p o r t u n i t y A c t , 4 2 U . S . C . , sec. 2 7 9 6 (1970). 2 0 . R e v e n u e S h a r i n g A c t , 31 U . S . C . , sec. 1 2 4 1 ( b ) (Supp. 4. 1 9 7 6 ) ( a m e n d i n g U.S.C., sec. 1 2 4 1 ( 1 9 7 0 ) . 2 1 . A r t . I, Sec. 2, P a r a . 1 and 2, d e s c r i b e the t e r m s a n d qualifications for the m e m b e r s of the H o u s e of R e p r e s e n t a t i v e s . N o limit is placed on the n u m b e r of t e r m s a p e r s o n m a y serve in the H o u s e . A r t . I, Sec. 3 a n d the 1 7 t h A m e n d m e n t p r e s c r i b e the election a n d qualification r e q u i r e m e n t s for S e n a t o r s . A s with m e m b e r s o f the H o u s e , there is no limit on the n u m b e r of t e r m s which m a y be served. O f c o u r s e , the P r e s i d e n t is limited to two t e r m s by the 2 2 n d Amendment. 2 2 . See n. 2 1 ,

supra.

2 3 . Sec. 2 o f t h e 2 5 t h A m e n d m e n t p r o v i d e s t h a t " w h e n e v e r t h e r e is a v a c a n c y in the office o f the V i c e P r e s i d e n t , t h e P r e s i d e n t shall n o m i n a t e a V i c e P r e s i d e n t w h o shall t a k e office u p o n c o n f i r m a t i o n by a m a j o r i t y v o t e of both H o u s e s of C o n g r e s s . " U . S . C o n s t i t u t i o n , 2 5 t h A m e n d m e n t (Ratified 1 0 F e b r u a r y 1967).

231

COMMITTEE IV

THE UNITED STATES AND THE WORLD by Covey T. Oliver It would be interesting to know whether the American people believe there is a crisis today in the management of American foreign relations under the Constitution of 1 7 8 9 . M o s t expert American observers o f , or participants in, the conduct of the nation's official dealings with the rest of the world would agree that we have a unique, complicated, energy-depleting system of public law for the allocation of authority for the governance of our official conduct offshore. And they would find the present situation of this system at least somewhat controversial, both at home and abroad. But these same American experts would divide as to whether anything can or should be done structurally. A considerable majority, probably, agree with the general thrust of Appendix L 1 to the Report of the Commission for the Study of the Organization of the Government for Foreign Affairs, 2 that by mutuality, patience, and other attitudinal acts of moderation, the qualified players of the "Foreign Relations G a m e " for the American side can improve the " g a m e p l a n " result for the United States. So far as the evidence from writings goes, it seems that the preponderant opinion of experts, with some exceptions (as always among experts), is that it is unnecessary, unthinkable, or illusory to contemplate changing significantly the structure of American government for any reason linked to " T h e United States and the W o r l d . " Nonetheless, some believe that it might be useful now to go through the exercise of reviewing the basic law controlling America's relationships with the rest of the planet. Basic issues of governmental structure for foreign relations should not always be examined, as they usually are, only from the standpoint of our internal concerns and expectations about the Constitution and our associations with the rest of the world. T h e rest of the world is also vitally concerned with, is affected by, and hence reacts to, how America does things internationally. Let us begin by seeing ourselves as others see us. W e are a country

that in its first 200 years has been phenomenally successful in every way in which the achievements of nations are measured; but usually the world does not credit our institutions and our way of life for this, as we tend to do, but rather believes that the good fortune of natural riches explains our success. Major resources, however, are seriously depleted now; and substitutes have not yet been assured. Some foreigners, following Adam Smith's view as to the fundamental wealth of nations, are willing to credit the American people also for the nation's success. But even this limited perception of us, the people, as the true wealth of the nation, is in decline now. The United States is a federal, participatory democracy, whose state and federal constitutions all incorporate some version of separation of powers with checks and balances—thus requiring the interrelated independence of three branches of government. This makes us unique—truly solitary—in the world community. As Ambassador Moynihan did not tire of saying, democracy itself is no longer the form of government that a majority of states provide for or practice. Within participatory democracies, only a very few (not more than a dozen) states are federal in form, and of these options federalism is a serious legal factor in the foreign relations of only five!3 Finally, no other federalistic democracy has an operational separation of powers/ checks and balances constitutional system. Nor, for that matter, do unitary (non-federal) states often practice separation of powers. In Iberic-America, for example, where the American Constitution was the model, of the few remaining democracies, only in Colombia and Costa Rica have separation of powers problems occasionally arisen in regard to relations with other states. Although in the world community the American system of governance for foreign relations is thus exotic, our national tendency, exhibited even in the evaluation of our Constitution, is to disregard this basic fact and to treat the problem of foreign affairs and the Constitution largely as a matter of internal values and preferences. We ascribe an almost incontestable value to the constitutional status quo and expect the rest of the world to adjust to it; or, at most, we assume that the domestic gains outweigh the possible foreign affairs losses, now and possibly for all time to come. But there is a rising tide of evidence that the rest of the world— especially the shrinking world of our friends—is finding our blandness in this particular increasingly irritating and destabilizing. We should not accept such evidence as conclusive, but we should not disregard it either. Thus, consider two recent illustrations: 1. Alfonso Lopez Michelsen, elected President of Colombia, observed, in regard to an unannounced shift in United States policy (from supporting a Colombian cut-flower export industry as relevant to Colombia's development to a Congress-pressured Treasury investigation of Colombian cut-flower imports as being subject to extraordinary [dumping] duties) that the episode brought sharply to attention questions of the reliability and

234

Covey T. Oliver

authoritativeness of United States foreign policy declarations and assurances. 2. The Prime Minister of Singapore at a White House dinner in his honor remarked in his toast that the friends of the United States are becoming increasingly uncertain and concerned as to who effectively speaks for the United States. 4 Hence, as we proceed in accordance with the wishes and interests of the participants to examine issues of (or close to) constitutional dimensions arising from America's contemporary and projected roles in the world community, let us consider the perspectives of that community, as well as our attachment to our present system. "Interdependence" requires no less. As we go forward, I remind you that the official report cited previously, and whose Appendix L was sent to the conference participants for prior study, is the eighty-third 5 officially commissioned study of United States foreign relations arrangements since World W a r II! 6 These studies are not famed for focus on the types of questions that the conference should focus on here. 7 It has been 200 years, after all, since our government under the Articles began, and the soon-perceived inadequacy of this original system for the conduct of the nation's foreign relations was one of the major inducements to the Constitutional Convention of 1787. That conclave did result in a new system. It seems fitting now to move ahead with réévaluation, freed from the limitations of realism, practicality, and ethnocentricity that seemingly always bind official commissions. Perhaps if the framers had been practical—or realistic—they would merely have adjusted the Articles of Confederation a bit. W e know to our advantage that they let their minds be bold. 8 Let us be bold enough to inquire. FOREIGN POLICY A N D THE S E P A R A T I O N OF P O W E R S The Internal Situation Today The American system of separation of powers with checks and balances is a system that, at the constitutional level, allocates action and commitment authority related to foreign affairs functions between the two political branches of government. T h e nonpolitical (judicial) branch, generally speaking, has shown almost "unjudicial" awareness of the practical needs of untroubled foreign relations where issues have arisen as between people and the executive, 9 but so far the courts have not ventured far into Constitution-level resolution of conflicts of jurisdiction between the executive and the legislative branches. Those who have read Appendix L, who have studied Professor Louis Henkin's elegant small treatise, 1 0 or have otherwise absorbed our constitutional fundamentals know that the Constitution of 1 7 8 9 creates an executive who (although this is not said in so many words) internationally is the American chief of state (not merely head of

T h e United States and the World

235

government). The powers of this executive are not elaborately enumerated, as are those of the Congress. The Constitution says the President has the executive power. It is clear that under the Constitution the President personally or through his delegates is the sole organ of official communication with other states. Broadly speaking, the Constitution as written does not give to Congress a general power to legislate as to foreign affairs, 11 although some of the specified powers, such as over foreign commerce, have high degrees of foreign affairs relevancy. The Constitution gives one-third plus one of the senators present and voting both a veto and a delaying power over "treaties." And in America even the traditional "envoys extraordinary and ministers plenipotentiary" of age-old ambassadorial communications patterns between chiefs of state cannot be appointed by the American chief of state alone, although after Senate approval (by simple majority), office is held at the pleasure of the President. The Constitution makes the President the commander-in-chief of the armed forces of the United States, without specific distinction as to where he may command these forces to be. But only Congress may declare war. This brief recitation of constitutional fundamentals, amply buttressed and elaborated elsewhere, suffices to support these descriptive observations : 1. The constitutional architecture of separation of powers with checks and balances requires executive and legislative cooperation and compromise as to most major or enduring aspects of American foreign relations. A President cannot for very long do very much that is highly significant in foreign relations on his own; and Congress on its own is not legally authorized to deal with other states and international organizations. The result is a dualism. Viewed from abroad, it has happened with some frequency in our history that deficiencies in American reliability that really result from the inherent nature of the system are seen elsewhere as excuses for American manipulation, evasion, and breach of commitment. 2. At best, the Constitution and its gestation are enigmatic as to a question that, had it ever been answered clearly and definitely, would have mitigated the problems sketched in 1, above. The question: between Congress and the President, who is to be master in the realm of international affairs? The Constitution is generally silent—some say secretive—as to the foreign affairs roles of the three branches. There is also reason to doubt the conflicts-resolution utility—if not the authoritativeness— of some rather fanciful Supreme Court "doctrines of obiter" about the direct descent of the foreign affairs executive power from the British Crown to the "executive in Congress" of the Articles and on to the President under the Constitution of 1789. 12 In providing a scheme of government "for ages to come," did the

236

Covey T. Oliver

founding fathers consciously decide to avoid coming to grips with the issue of who is ultimately to be master? If so, why? O r did they assume that Congress remained paramount, as it had perforce been under the Articles? Contrariwise, did they choose to leave it to the two political branches to grapple and contend and eventually to adjust as circumstances would make necessary, from epoch to epoch and from one President and Congress to another? Perhaps, though, the silences of the Constitution simply reflect a now-obsolete perception of the foreign relations process. In this regard, it bears noting that one thread running through several of the viewpoints expressed in Appendix L of the M u r p h y Commission Report is that things really have not changed as to the process, because in our formative years under this Constitution our foreparents in office had to contend with the infinite complexities of America's relations with the convoluted "European System" of the 18th century. 1 3 Do the writers really mean this? Do you agree that picking America's way between revolutionary France and the pre-Concert of Europe presents the policy choices and the operations difficulties that face this country today, on a planet of 150 states, rich-poor, socialist-nonsocialist, oldnew, with nuclear proliferation, run-away arms races, a population explosion, and environmental exhaustion blended in? I personally differ, and furthermore I suspect that the framers did not, in 1787, see foreign relations for what it has become, particularly the rather threatening reality that, in terms of survival—of values as well as of the nation—there is no longer any sharp line between internal and external affairs. Nor should we lose sight of the political fact that the separation of powers system has been bridged almost from the beginning of our history under the present Constitution by party politics, a term and concept as to which the Constitution is entirely silent. A fundamental question cutting through all of the topics of this conference is whether the American people may not have come, after nearly 200 years, to have to try to live for the first time with unrelieved separation of powers. In orthodox American governmental theory, the Congress and the executive were once thought to be coordinated through the President's political leadership of the dominant party in Congress. Woodrow Wilson, early in this century, shifted coordination theory to the concept of the President (if to be "strong," that is, "effective") as the articulate voice, vis-a-vis Congress, of the ideals, values, and wishes of the American people in his time. From time to time, particularly in the aftermath of World W a r II, foreign policy has been characterized as outside political contention—as "bipartisan." Now, however, looking back we note that since World W a r II, Truman, Eisenhower, Nixon, and Ford have been part- or full-time "minority" Presidents and that Kennedy never had, and ultimately Johnson lost, the support of majorities of their own parties in Congress. The Wilsonian version of the strong President putting the fear of

The United States and the World

237

God into the Congress in the name of the people did not, tragically, work for him, or for any President after him except for Roosevelt— and even he failed in efforts to purge senatorial recalcitrants. Bipartisanship in foreign affairs began to die when Eisenhower campaigned on " I will go to Korea," despite occasional efforts since to revive it. Strangely—eerily almost—today there may even be a kind of reverse bipartisanship at work, in that the foreign affairs issues that divide the President and the Congress are not so much based upon political differences as on different senses of mission between the two sets of institutions involved. Certainly today the issue " W h o shall be master?" is not a party issue but an issue of congressional power versus presidential power, as the Democratic Majority Leader in the Senate never hides. 14 Major Issues of Foreign Policy and the Separation of Powers The basic, externally-oriented issues of constitutional limitation are herewith stated and explained. The panel may wish to disregard, debate, restate, or accept them as a backdrop to the evaluation of other issues. As already indicated, I consider these factors to be neglected or undervalued in conventional American appraisals of the Constitution and foreign policy. The issues are mainly ones of separation of powers and of checks and balances, although possible constitutional restrictions upon the types of official actions that representatives of the United States may take are also involved. Issue: What is the capacity of the United States to act in ways and along lines that other states in the world community use? Discussion of Issue: Customary international law and international relations modalities still reflect their origins in Western state systems between 1300 and 1500, when the people and their representatives had no legal power or authorized role in any aspect of foreign statecraft. Even in Great Britain, where Parliament developed to the level of virtual omnipotence in domestic affairs behind elaborate fictions as to the continuation of monarchial prerogatives, the Crown has kept control of foreign relations, including the making of international agreements. Thus, in Britain to this day Parliament is not called upon to approve a treaty as a condition of its coming into existence. 15 Her Majesty's principal secretary of state for foreign affairs, although a member of the cabinet and sitting in Parliament, is usually not effectively questioned 16 —or his party turned out—where issues of controverted foreign choice are present in the political atmosphere. Recently, even, the Court of Appeal has held that, despite the doctrine that no Parliament may bind another, the national legislation required to enable Britain to perform its obligations under the European Community treaties is impervious to fundamental variance by another Parliament thereafter. 17 The American President, acting personally or through the Depart-

238

Covey

T. Oliver

ment of State or other executive agencies, is treated on the world scene as being authorized to act for the United States as if an absolute monarch. He and his subordinates may commit the country, notwithstanding the Constitution, internationally. Lack of capacity domestically is no legal defense internationally to an undertaking made by a chief of state. 18 When presidents, secretaries of state, ambassadors, and other authorized Americans meet with their peers from other countries, the inheritance from what for modern democracies is an outmoded but still living system tends to influence the way things go, especially where the issues involved relate to the intensity with which policy objectives of the chiefs of state are pursued. Despite all this, however, the American chief of state increasingly finds himself cut down well below his peers in the world system as to powers related to foreign affairs operations that even in other modern democratic societies are exclusive to the foreign affairs executive there. And, of course, absolute power-wielding chiefs of state have increased in numbers in modern times as participatory democracy has been displaced or is not practiced in fact. I know of no other government in the world in which the legislative branch claims, as Congress seems to be claiming today, that the executive departments are not privileged to keep internal operations communications to themselves (executive privilege) and that state secrets must be revealed to legislative assemblies. In most other democratic states, the foreign affairs executive is able to maintain executive privacy and state security, because the constitution places the control of parliament in a group of officials who occupy dual roles, those of executives and legislators. Anyone who, knowing of congressional inquisitions in Washington, has observed question time at Westminster and has seen the foreign affairs executive blandly answer, " N o , sir" (which means " N o comment"), to a pointed parliamentary question related to foreign affairs operations understands the difference between the systems. Which is not to say, of course, that one of them is, in the nature of things, preferable to the other. It is only to say that the American executive, charged with giving course and direction to American foreign affairs, is not, in law, as invulnerable to destabilizing internal counterpressures as are his opposite numbers in other countries, including democratic allies as well as dictatorships. In this analytical summary, it is also worthy of brief reference that in the United States, unlike most other states, there are constitutional limitations upon the subject matter of international agreements. The pointed dicta of Holmes in Missouri v. Holland19 and of Black in Reid v. Covert20 establish that it is beyond the capacity of the United States to comply with an international agreement obligation to give internal legal effect to an exercise of authority that the Constitution prohibits, such as a treaty, for example, under which the gist of the agreement is that the contracting states each agree to suppress defamatory utterances about the government, leaders, or people of the other. The Supreme Court, moreover, in Youngstown

The United States and the World

Sheet and Tube

Co.

239

v. Sawyer,21 and in other decisions, has shrunk to negligibility notions that the President has "inherent executive power," linked to foreign policy considerations, under which he may ensure to other states the internal legal effectiveness of mutually agreed foreign policy lines of action that depend upon parallel internal application. Finally, as to constitutional limitations upon the legal capacity or the immunity of American officials from liability when they act abroad, instead of at home, there may be emerging an extension of the old "When does the Constitution follow the flag?" problem. Mr. Dooley, with the Insular Cases 22 of our Spanish-American War period of imperialism in mind, used to say that the Constitution followed the flag on certain days of the week only. But the basic issue in those cases was whether United States governmental action on Americanconquered and -acquired territory offshore was controlled by the Constitution as to process, other fundamental rights, and the like. Today, problems in this regard seem to be much more complicated. Consider the situation in United States v. Jordan,2* recently before the United States Court of Military Appeals: is evidence obtained by search and seizure to be excluded at a court-martial of an American airman charged with off-base burglary in the United Kingdom, because American airbase police accompanied but did not participate in an on-base search of the accused's quarters by the British police? The military appeals court held that the Supreme Court decision in Mapp v. Ohio, a domestic case,24 had shifted the invalid search rule from an evidentiary base to a "positive command of the Constitution," thus compelling the abandonment of all precedents in prior military justice that made inadmissibility of search and seizure evidence in foreign base cases turn upon the participation, vel non, of the American military police in the search. The court concluded: In sum, then, we hold that evidence obtained by search and seizure in a foreign country must meet Fourth Amendment standards in order to be admitted in evidence in a trial by courtmartial, regardless of whether it is obtained by foreign police acting on their own or in conjunction with American authorities. (Emphasis added) Readers who know something about the workings of our Status of Forces Agreements are in a good position to conjecture as to what the consequences of such a decision are apt to be when, in the next case of an off-base, off-duty offense by an American soldier, the United States base authorities wish the host state to yield primary jurisdiction to try the defendant in the American military courts. Yet, could such a reader agree as a matter of constitutional analysis with the dissenting judge? He began: To say that our armed forces carry with them the Constitution as well as the flag is one thing. To say that the Constitution operates against a foreign government in its own country is quite another.

240

Covey T. Oliver

And who among us could give with complete assurance a categorical negative answer to this question: could an American official be held liable, assuming statutory specification, for the violation in another country of the "constitutional rights" of an alien under the Bill of Rights? Another type of restriction on United States power to act in the foreign affairs field exists de facto only, but it exists nonetheless. It is the actual reluctance of the executive to negotiate arrangements with other states, especially self-executing ones, that under the Constitution lie within the range of the treaty power but are believed to be apt to cause objections within the states of the Union—or among congressional groups. This reluctance is not entirely new, but it has certainly become a negative factor of wider ambit since the Bricker Amendment controversy of the 1950s. One embarrassing aspect of this reluctance is that from time to time the United States seeks special exceptions to its obligations under a treaty, to which other states are unconditionally bound, on the ground that "considering its constitutional structure" the United States is obligated only to use its good offices to persuade the states of the Union to perform. 25 The hypocrisy—and known as such in international circles—is that the constitutional structure of the United States does not impose limitations upon the power of the federal government to override "states' rights" by a treaty. As bearing on this Issue very specially (although relevant to some others also), consideration should be given to contemporary courses of conduct of the Congress (mainly through key committees and subcommittees thereof) that trench directly upon the traditional powers of chiefs of state as to the conduct of international relations: 1. Secrets of state: Until contemporary times the general assumption, certainly so within the foreign affairs component of the American executive branch, has been that Congress and its committee staffs have no legal right to share in the knowledge of, and certainly not to publicize without the consent of, the executive "secrets of state," leaving open for the moment the content of this phrase. Until recently, indeed, it was the assumption of perhaps most interested legislators that the classified information collected by the foreign affairs apparatus of the American chief of state could not be demanded under claim of right, but could only be used by the legislative branch at the discretion of the executive. Now, as the activities of the House Select Committee on Intelligence and various proposals for legislation to provide for prior clearance by the Congress of clandestine intelligence operations inform us, different winds are blowing from the Hill. Compare, further, the discussion below of a proposal that, building upon legislation now existent (requiring that all international agreements made by the executive, even those under inherent executive authority, be reported to the Congress) would further provide for legislative rescission of some types of such executive agreements without presidential veto. The trend noted cannot but have inhibiting

The United States and the World

241

effects (even before final determinations of validity, if such are possible) over a very wide field of normal conduct for the chief of state of any state, including, for example, political, intelligence cooperation, international organizations voting plans, and other informal operating understandings. 2. What remains of executive privilege? Also very much under attack from congressional quarters today is the claim of executive privilege (or bureaucratic right of privacy) as to the internal workings of the executive branch with regard to foreign operations. Foreign affairs operations decisions are often "made" by the human affairs equivalent of resultants of forces in traditional physics. And it has been the contention recently of both the President and Secretary Kissinger that required revelation to the Congress (which they imply means virtually always revelation to the media as well) consigns the process just described to unworkability. The issue joined goes out beyond where the legal trail ended in United States v. Nixon,26 for it is to be recalled that the Supreme Court was careful, when balancing public interests in that case, to note that sensitive issues of foreign affairs operations would not be exposed by denying executive privilege under the facts before the Court. 3. Legislative trends toward denying the President the veto: In "Hoover Commission" days, few difficulties were seen with arrangements under which the Congress delegated to the President authority to reorganize the government in accordance with congressional guidelines and subject to congressional invalidation of any particular executive plan by concurrent resolution voted within stated (fairly short) time periods. In modern times, however, Congress has drawn upon the concept that a concurrent resolution, unlike a joint resolution, is not legislation (and hence is not subject to the veto over laws given to the President by the Constitution) to claim for itself a capacity to rescind, as to internal legal effect, international undertakings made by the chief of state. Useful illustrations of the process and of some problems it creates can be found in the Trade Reform Act of 1974. 27 Until renewal of legislative authorizations that ended at midnight, June 30, 1967 (the expiration date of the Trade Expansion Act of 1962), it was not worthwhile for there to be further tariff and non-tariff barrier reduction negotiations (through the General Agreement on Tariffs and Trade or otherwise) in the world community, because the American executive had no authority to put negotiated reductions into effect in the tariff laws of the United States. The executive departments, naturally, bore the brunt of concern about the situation, seeing as imperative the enactment of new trade legislation. Eventually it came, in 1975, burdened with a number of nontrade preconditions required by Congress. (Some of these, such as the Jackson-Vanik Amendment on emigration, were foreign affairs innovations, for hitherto it had not been international practice to attach nontrade conditions to trade concessions.) An important economic need in the new trade legislation was for more effective reduc-

242

Covey T. Oliver

tion of non-tariff barriers to international trade, such as quantitative restrictions (quotas), the valuation of certain imports at "American Selling Price," a n d t h e like. For trade reasons, it was necessary for t h e present executive to accept a n extension of the concept of congressional post hoc review a n d possible invalidation by concurrent resolution of presidential negotiations u n d e r t h e powers delegated to him. (A rather exquisite question here is w h e t h e r the President's n o n v e t o of the trade bill— he could not afford t o — h a s barred him and his successors, by some sort of constitutional-level estoppel, f r o m attacking the circumvention of his normal power t h r o u g h the veto to require Congress to muster two-third votes in both houses to override his rejection of congressional action that has legal effects.) Internationally, the a p p a r e n t p o w e r of the Congress to u n d o a trade negotiation to which the United States is a party is already seen as b o t h inhibiting the chief of state and creating an unsettling degree of uncertainty in regard to the next or " T o k y o " round of multilateral trade negotiations. T h e a u g m e n t a t i o n of earlier usage of the concurrent resolution seems still to be of some interest to groups in Congress. T h e r e is n o w before Congress w h a t m a y possibly be a high-water mark among legislative efforts to insulate f r o m the veto the will of Congress that certain executive agreements not come into effect if disapproved by concurrent resolution. This proposal is not here discussed in detail, because it is still pending. 2 8 4. Selective use of traditional powers by Congress: T h e Issue above directs attention to the actual capacities of the United States as a state a m o n g states and of the American chief of state among chiefs of state. T h e view is f r o m the pit of t h e world arena. It is submitted that the situation of the United States, unique f r o m the beginning, seems to be moving t o w a r d even more unusualness. In this subanalysis, the obvious powers of Congress as to appropriations and investigative post-audit have not been discussed, because as to the first of these powers, history shows that even absolute monarchs have b e e n vulnerable to it and, as to the second, even dictators are reviewed by those w h o o v e r t h r o w them. It does not follow, however, t h a t the use of certain entirely classic and traditional p o w e r s of Congress is always directed truly toward the powers used. Subcommittees of regular committees, such as of G o v e r n m e n t O p e r a t i o n s , A r m e d Services, and, of course, A p p r o p r i a tions, can be and are used by the legislators w h o dominate them to seek to force the executive to m o v e along foreign policy lines that reflect the foreign policy preferences, not of the Congress as an entity, but of particular legislators a n d sometimes those of committee staffers, who, n o more than the executive bureaucracy, were ever elected by a n y b o d y . A newly created discrimination against the D e p a r t m e n t of State that is linked to particularized interests in explicit influence on foreign affairs operations should n o w be n o t e d : it has come to pass that the

T h e United States a n d the W o r l d

243

first ministry to be established under the Constitution of 1789 is now, alone among the established departments of government, required to be reauthorized as an agency periodically by Congress. Watchers of the United States government, here and abroad, have over time become familiar with the fact that a major difference between the permanent executive agencies (the ministries) and temporary agencies, such as, say, the United States Agency for International Development and its many-titled predecessors since the Economic Cooperation Administration of Marshall Plan days, is that the latter die if not periodically reauthorized by Congress. But now, as a result of the "advise and consent" drive of the Senate Foreign Relations Committee from roughly 1964 on, the Department of State carries on under a second-class agency requirement of having to answer on money matters, not only to the appropriations committees, but to the Senate and House committees for foreign affairs at an "authorization" stage. In contrast, the Treasury Department—the second oldest of the established ministries and one of immense consequence in international relations—need not answer in Congress other than as to its actual appropriations. O f course, if Treasury were to support a particular piece of legislation, such as the replenishment of the American share of the soft-loan capital of international development banks, it would have to go on the merits to the relevant committees, one of which is not charged in Congress with general responsibilities for foreign affairs matters. 29 Issue: How will the reaction of other entities in the world community affect United States interests if present constitutional structure and practice thereunder are continued into the next century? Discussion of Issue: To ensure discussion of issues not very often examined in appraisals of the United States Constitution in relationship to international relations, we referred earlier to the evidence of rising foreign impatience with what, in world terms, is a peculiar American system for the conduct of foreign relations. The legal and structural aspects of our present situation in foreign affairs policymaking and performance have also been sketched. Additionally, as to the Issue, there are these questions: 1. Is there buried in a national attitude toward our way of life, including the inertia of normalcy, an assumption that for reasons of virtue, power, or democratic institutional values the United States is entitled to expect to continue to enjoy special toleration for its foreign affairs system? 2. If the answer to (1) is "yes," does world response to rapidly changing world environment (as to international law, forms of government, ideology, resource allocations, population, ecology, neonationalism, irrationality in the conduct of foreign relations, and the like) justify a continued expectation of no-cost toleration?

244

Covey

T. Oliver

T h e s e questions are intended simply to call attention to the undesirability of letting events take us b y surprise, as they have the former colonial powers in one particular and the United States in another. T h e former did not see early enough the end of a cycle and we did not anticipate the present chaos in the national state system that the end of colonialism has brought. It may be offensive to some even to suggest considering that our highly valued constitutional system may be a product of times that, for the world as a whole, have passed or are passing. 3 0 Realistically, nonetheless, for the near future at least, America is not getting the general deference it once could take f o r granted. No matter how we may paper it over to ourselves at home, the world knows that America has been defeated—in a professional, Von Clausewitzian sense—in a war; that, although our institutions worked to turn a power-abusing President out of office, they did not earlier reveal his defects to the electorate that voted him into office; and that for the first time in the country's history the chief of state cannot match the authority that members of Congress derive from having been elected. As we turn again, in the next section, to the more familiar home ground viewpoint, let us ask ourselves whether the sense of mission as to integrity and effectiveness in foreign relations operations that Lomes to characterize virtually all who are involved in the process as acting parties in the executive branch can really be shared by the Congress as a whole or the people as a whole. In all democracies—usually in nondemocracies too—there is a suspicion of those fellow citizens, the "foreign office c h a p s , " who deal with foreigners and become sensitive to their expectations of rights, comity, reciprocity, respect, and even justice. If this reserve becomes rejection, how will the United States ever be able to attempt to explain itself abroad?

PROBLEM CASES THAT TODAY INFLUENCE THE SHAPING OF EXTERNAL RELATIONS Linkages W e are aware that constitutional issues were not considered in a vacuum at Philadelphia in 1 7 8 7 . 3 1 A s to foreign affairs, real problems of national concern about international relations and of the national interest under the Articles existed. T o d a y , many pressing questions of value-choice, rather than of structure, also link to our governance for foreign affairs. I shall attempt to raise the appraisal of these in a governmental context, but without foreclosing others that members of the panel may propose to the chairman and their colleagues. O n e problem, " D i s a r m a ment and Arms C o n t r o l , " I have added to the outline, out of an affectionate respect for the person and profound admiration for the conscience, wisdom, and vision of a Philadelphian so great as to have

T h e United States and the W o r l d

245

assuredly been among the founding fathers had he lived in 1787, Senator Joseph S. Clark. Military Policy Korea, Vietnam, unbelievable budgets, and a general sense that President Eisenhower was saying something of great importance in his farewell warning as to a military-industrial complex have brought about a situation in which many representatives of the people—we do not know as much about the people themselves—feel that Congress must "do something," because the executive will not or cannot control a runaway military state within the state. In contrast, military affairs professionals, not all of whom are in the armed services by any means, look dubiously at detente, appraise what they consider to be an unchanged (and probably unchangeable) threat situation, and align themselves with certain seniority-entrenched elements in the Congress to resist legal and financial restraints upon American military power-in-being. So far, the results of this contention have been rather erratic. To illustrate: a few years ago, there arose within the anti-armaments group in Congress a strong determination to force United States development assistance recipients in Latin America to eschew even a modicum of modernization in their military equipment, such as replacing thirty-five-year-old piston-engined military aircraft with the only kind now manufactured, jets. What then Assistant Secretary of State Lincoln Gordon called an "arms crawl" in Latin America, dominant congressmen called, in support of riders to the Foreign Assistance Act, " a run-away arms race." Actually, Latin America then, as now, spent less of its gross national product on arms and the military than any other sector of the planet. 32 And at that time of amendments to the annual Foreign Assistance Authorization Act enforcing the above views, Southeast Asia, the Middle East—even Ethiopia—were freed by waivers from these congressional controls. 33 Result: more and more, the military took over governments in Latin America and the countries turned elsewhere for modern materiel. Also, the Latin countries saw the United States action as not only interventionist, but what is worse, ridiculous or hypocritical. Structurally viewed, the most significant result of the pulls and hauls partially illustrated here is the War Powers (Joint) Resolution, passed in 1973 over presidential veto. 34 In constitutional terms, the issue presented is between the President's power as commander-inchief to deploy forces and the power of Congress to protect its power to declare war from situational preemption by such deployment. Although at the time of its consideration, enactment, veto, and passage over the veto, issues of constitutionality figured in debate, President Ford has so far bowed to its mandate. While it may be that (standing to sue aside) the decision of the Supreme Court as to the Federal Election Commission, 35 January 30,1976,

246

Covey T. Oliver

will spark a revival of separation of powers adjudications and that the federal courts will not reject the present issue as a political question, the basic issue for us here seems to be whether there should be resolution by constitutional respecification of congressional power to curb the President's volition on deployment of forces. On a somewhat broader front, the landmark decision referred to above may presage a judicial endeavor to set limits beyond which Congress may not go in acting authoritatively under the Constitution with intent to administer, rather than to legislate or investigate. Expenditure Levels There are two possible questions for us here: 1. The control of Congress over expenditure levels and disposition of government property being plenary under the Constitution, should there be some mechanism, other than waiting until the next election, to correct asserted-to-be serious congressional damage to foreign policy goals of the United States stemming from reductions or cutoffs of programs, such as military cooperation, foreign intelligence operations, and support for bilateral and multipartite development assistance? As to expenditures, I join those who say, " W e just have to live with what we have." I do so, because even major constitutional change, such as going to ministerial responsibility, would surely leave the money power squarely with the legislative body. Perhaps there could be experimentation with bicamerally-approved foreign assistance international agreements under which the House of Representatives would be committed, along with the Senate, to fund, for periods of years, certain types of foreign assistance programs. Or, perhaps, the House might initiate a "foreign development tax" to provide for our general welfare through reducing the turbulence of a world otherwise irreversibly divided between rich and poor nations. It is important to ponder, in passing, why it has been that Congress has been so very reluctant to use its most unquestioned and most powerful control over external operations, the money power. American foreign policy is today—and for some time has been—based upon large expenditures of money. Ergo, even foreign policy is controllable under the money power. Answers seem to lie along one or the other of these lines: (1) internal factors that congressmen cannot ignore are also in play; (2) Congress does not want to wreck, but only influence, major aspects of foreign policy, as to the substance of which it does not disagree with the executive; (3) using the money power to enable Congress to shape foreign policy throws the control within Congress to inappropriate committees; (4) Congress is aware that it should not use the money power to distort the Constitution. 2. The question of the constitutionality of executive impoundment of foreign affairs appropriations has not moved in practice beyond President Truman's rejection of a congressional directive to spend on Spain funds that he did not wish to spend on Spain, even though

The United States and the World

247

executive domestic impoundment seems controllable by congressional specification in law. 36 The separation of powers issue as to executive impoundment related to international operations is an issue seemingly left unresolved by the present Constitution. Perhaps it will appeal to some of our participants for further—or divergent—analysis or as a topic for revisionary attention. Again, perhaps, the election law case speaks to the separation of powers issue here, although I doubt that it does. Arms Control and Disarmament The first of Professor Louis Henkin's useful books on the Constitution and America's public affairs projected an international agreement on arms control and disarmament and proceeded to analyze, solidly and imaginatively, the constitutional issues that might be raised.37 Unhappily for us and for the world, Professor Henkin's projections have never had an opportunity to guide events. Today, arms control and disarmament seem far from presenting us with constitutional problems. As with regard to military policy and levels of military expenditure, the heart of the difficulty seems to be that polarizations of viewpoints cut across separation of powers and involve pro and anti alignments in both the executive and legislative branches. The state of readiness/' threat situation professionals in the executive departments find counterparts in the legislative branch, especially among the authoritative chairmen of some key committees. It is very difficult for any responsible person to be detached about the situation, because deeply held moral feelings are so strongly involved, the risks so awful, and the unknowns so enigmatic. Some say the area is one in which nothing much will be accomplished until the world has a severe but survivable nuclear experience or, short of that and in the case of the United States, until the country shall have—if ever it does—an executive chief who is both a fully effective national leader and a person assuredly knowledgeable on nuclear arms and threat matters. It is almost impossible, in my opinion, for steadfast leadership of the required level of effectiveness to develop in Congress, even though substantial numbers of individual legislators be committed to sound principles as to the fundamentals of arms control and disarmament. This observation on the probable exclusive effectiveness of executive leadership on arms control and disarmament derives from personal experience with leadership as to levels and continuity of American contributions to development—to the international war on poverty. Congress has never taken leadership initiatives on foreign aid, and the spiraling-down of our development assistance effort largely reflects presidential disinclinations or perceived inabilities to lead affirmatively in this field. And these two deficiences in leadership may become tragically linked—in a rich-poor world of nuclear proliferation.

248

Covey T. Oliver

THE CONSTITUTION AND UNITED STATES PARTICIPATION IN TRANSNATIONAL GOVERNMENTAL PROCESSES Evolution Beyond the National State System—Something to Consider? Nine democratic, free, developed countries, all allies of the United States, have found it necessary to create by treaty regional institutions that have authority to act directly upon persons, including governmental agencies, within the member states, much as the federal government acts directly within the federal sphere in this country. These countries, too, have a community Court of Justice, which is the final legal authority over national courts on matters of interpretation of the organic treaties creating the European Economic Communities. Several of the European Community countries had to alter their constitutions to permit this result. No one is suggesting that the United States—at this time, at least —seek to join the European Communities or to become a member of a Western hemisphere common market with our Latin American neighbors. The latter would be impossible for the neighbors to live with economically, considering the overwhelming cost-effectiveness of American industrial production in comparison to theirs. But there is Canada, with which we already have a free trade area in motor vehicles and parts, and which could probably hold its own if all tariff walls should come down between us. More importantly, there is the century ahead to think about. The logical result of the "interdependency" that present leaders in the executive and in the Congress support is evolution beyond the present national state system and the present types of international organizations that are not directly organs of human governance. Would Supranationality Be Constitutional? Could the United States under its present Constitution enter into a regionalistic or planetary federalism of limited powers? I fear that, without standing the Constitution, written and unwritten, on its head, we could not. Item: to provide by treaty for an external agency to make and enforce law in the United States would involve the use of the treaty power to do what the Constitution prohibits as to due process, delegation of legislative power, and the exercise of executive and judicial powers; and the Court has said, twice at least, that the treaty power cannot be used to do by treaty that which the Constitution prohibits. Item: American legal opinion, including that of secretaries of state and attorneys-general, has consistently held that the Constitution does not permit appellate review by international tribunals of process in domestic tribunals. Item: beyond the issue of federalism settled by Missouri v. Holland lies the question of whether the treaty power may validly be used to

The United States and the World

249

displace states' rights in favor of some rulemaking and authoritywielding entity other than the federal government. Item: a national plebiscite of the sort that eventually settled—for now, at least— the troubled question of British entry into the European Communities is difficult indeed to fit into our present constitutional system. Are not these matters that are worth thinking about as we peer ahead as best we can into a murky future, from a present in which we are constantly being told that multinational enterprise has already seen the future of society on this small planet better than governments have? THE STATES OF THE UNION AND FOREIGN AFFAIRS Other than the problem of "federal reluctance" to use the treaty power, where doing so invades legal domains that fall to the states in the absence of treaties, and legalistic odds and ends of federalism, such as the recently restored power of the states to impose nondiscriminatory property taxes on imports not yet in the stream of commerce, formal federalistic issues are not of present or of foreseeable future difficulty as to the conduct of foreign relations under the present Constitution. To overstate a bit, whatever remained of "states' rights" in foreign affairs after Missouri v. Holland probably was swept away by the Supreme Court's self-made version of a "nontreaty supremacy clause" in Zschernig v. Miller}* Even the theoretical question of secession in a new guise, selfdetermination of peoples, seems quite remote in a nation increasingly homogenized as to values, tastes, outlooks, and life-styles. The main question about the states of the Union and foreign affairs under the Constitution is whether states "as we know them" (that is, in present numbers and distributions of population) are any longer utile. This is a matter that has been addressed in a stimulating and provocative study by Dr. Rexford Tugwell and others. This is not to say, of course, that the states do not have certain bearings on foreign affairs, as when the state police insist on escorting speeding but immune Soviet diplomats off the New Jersey Turnpike, which the Department of State tells the Russians they must not deviate from in motoring between New York and Washington. And it not to say, either, that the very existence of a federal structure does not impose some restraints upon national foreign policy. It is a reality that the states—and the cities—tend not to become affirmatively involved in foreign relations matters and hence do not give much weight to what is desirable in foreign policy, especially when a transnational perspective threatens an expectation that federal financial assistance to them might be affected. THE PEOPLE AND FOREIGN AFFAIRS The discourse just concluded leads to a very significant matter, one that justifies being stated as a third Issue:

250

Covey

T. Oliver

Issue: Do present constitutional arrangements adequately provide for the participation of the citizenry in value choices related to foreign policy? Discussion of Issue: Statistical realism requires us to admit that a very large proportion of our population does not even understand basic aspects of our Constitution, such as the Bill of Rights, to say nothing of its convoluted arrangements as to foreign relations and its even more complicated unwritten growth in this sector. Nonetheless, modern mass media, T V especially, have brought the world and America's stance therein very close to a concerned minority of the citizenry; and, if an international relations issue is a very big (and therefore a starkly simple) one, even the populace as a whole may involve itself. Assuming a significant degree of popular involvement, particularly in election years, in foreign policy, let us consider constitutional theory and practice in regard to the people's role. In constitutional theory, the President is not chosen by the people; but in practice, and making allowance for the "winner-take-all" effect of our state-linked electoral voting pattern, the people now select the President by popular majority. In doing so, the people elect a chief of state who is not legally or politically explicitly committed for his four-year term to follow any course of action, but only to use his best judgment in giving course and direction to American foreign policy. The House membership is also elected on a theory that the people of a congressional district choose, not "mouthpieces," but wise and good people to go to Washington and make wise and good decisions. Originally the Senate may have had a different function, 39 but since the 17th Amendment, providing for the statewide popular election of senators, there has been a shift from the senator as delegate of his state to the Washington government to the senator as a "supercongressman" (having a bigger district and a longer term, but no higher pay). In practice, over the whole range of political values, the picture is much less clear. The prevailing popular belief is probably that all members of Congress jerk into motion when predominant interests of the left or right, capital-labor-farmer, ethnic) in their electoral constituencies pull the strings. Yet, it is observable fact that some senators and some representatives usually vote as to international issues in accordance with their own judgments, although there are usually also some distortions, for which some otherwise independent solons become well known. Discounting personality factors, what is the line of cleavage? It is the safety of the member's seat; and even with longer Senate terms, there is notable correlation between a senator's independence of mind and his confidence in being reelected. It seems reasonable to conclude that, generally speaking, members of the House and Senate are in practice more independent-minded in foreign relations than in domestic matters, mainly because their constituencies do not have definite views on foreign relations issues,

The United States and the World

251

unless the issue be as basic as staying in or getting out of Vietnam or of electoral district concern. A plausible hypothesis is that the theory of delegation of popular sovereignty to elected representatives works in foreign relations most of the time as the founders assumed and that it does so because the people of the constituencies are not massively attracted to personal involvement in foreign affairs activism. If this analysis is correct, then the people have delegated their popular sovereignty as to foreign affairs to both the President (on a national basis) and their representatives and senators on voting district bases. The result is that the people do not, in practice, decide who wins when there are controversies between the President and the Congress, but only watch the fray. It may well be that our panel should speculate about what the people ought to be doing in foreign relations, how they could be induced to do it, and how they should be prepared infonriationally to discharge their responsibilities if they should become active. This is to ask: for the future on a rapidly changing planet, should the American people more closely couple themselves to the making of basic choices, such as the shaping of external relations, peace or war, negotiated arms reductions or unilateral disarmament, military policy, contributions to development, doing or not doing "dirty tricks" abroad, and many others? Or should the present system continue, with the people leaving these questions to those t h e y select by vote to make choices? Is our present system too reflective of a bygone age at a time when " Y e a - N a y " buttons on the family cable television set could give a national viewpoint on an issue within milliseconds? Or is it still wise and desirable for the people to let others decide values for them, subject to post hoc correction at the polls? If so, why? avoidance of having to decide? specialization of knowledge? an assumption that the representatives chosen are superior to the people in ability to make these decisions? At this point, it is appropriate to make a cross-reference to a later discussion of the question of whether there is utility in considering on the merits a shift in our form of government to a system of "legislative domination with cabinet responsibility." The linkage relevant here was well expressed by a British laborer who, when asked why it was useful to have a general election at a particular time, responded: "So's we can throw the buggers out!" This is another way—an older and pre-TV button way—of bringing the people closer to the actual processes of decision-making. But, as noted earlier, it is not often in the political practices of "ministerial-responsibility" democracies that the "buggers" get turned out on foreign affairs issues. Finally, in regard to this Issue, we should evaluate the roles and the power of modern mass media in foreign affairs choice-making. The American people are not fully informed by their government. (No people anywhere are.) We are just beginning, under the Freedom of Information Act, to use a statutory people's right to know (with security limitations) what has been done in the past. So far, there is no recognition of a citizen's constitutional right to be kept informed as to

252

Covey T. Oliver

ongoing operations. T h e question might be asked, in the light of a present separation-of-powers controversy between the President and two congressional committees, " I f the Congress has a right to know, what about the people?" Note that if only Congress but not the people shall have the right to know, the people—to the extent interested at all—remain ineluctably relegated by informational disadvantage to the secondary and passive role ascribed to them by the 18th century theory of representative government, unless, of course, they decide to intervene on the basis of what the " T V tube masters" and other media "authorities" tell them they should know—and do. THE INTERNATIONAL AGREEMENTS P O W E R S A N D G O O D FAITH PERFORMANCE OF THE I N T E R N A T I O N A L OBLIGATIONS OF THE UNITED STATES Congressional Disregard of International Agreements By judicial decisions and in governmental practice, Congress is recognized as having the capacity to rescind the legal effect of a treaty as internal law, even though to do so puts the United States into breach of the treaty internationally. 4 0 Today, as we have seen, Congress practices veto-proof invalidation of executive agreements based upon congressional authorization, and it may claim the power to review and similarly invalidate executive agreements made under the inherent powers of the President as chief of state and commander-in-chief. In his commentary upon Professor Henkin's presentation in Appendix L to the Murphy Commission Report, Professor Falk calls for greater respect in practice for international law by the United States. This appeal includes a preference for constitutional stipulations under which an international agreement, having internal effect as law, cannot be undone by a later inconsistent act of the legislature. The question of whether the Constitution should be amended to conform in this fashion to the constitutions of some other countries is a matter for consideration. This concern is voiced, of course, against the background that, increasingly, an objective of treaties and other international agreements is to provide for parallel internal legal treatment of matters that touch and concern the interests of all the parties —and often of the planet as a whole. Additionally, Americans should consider seriously whether their assumption that the United States almost always performs its international obligations is correct. There is reason to believe that, largely for structural reasons, there is sometimes ineffectual government agency policing of the requirements of international agreements. Private parties may assert treaty rights affirmatively or defensively in legal proceedings brought in federal and state courts; but, unless a treaty setting performance standards has been implemented by domestic criminal or regulatory law, there is no governmental agency but the Department of State, motivated by diplomatic considerations, to push for observance. And some other former officers of the Department of

T h e United States and the World

253

State might recall, as I do, a tendency within the department to leave worries about seeing to it that an international agreement is "lived up to" to the persons and/or office that negotiated it. This tends to make uberrima fides respect for treaties vulnerable to the passage of time and shifts in the attention and interest spans of the higher echelons. Consider in this regard this question: assume that the Third United Nations Law of the Sea Conference does produce a full-range law of the sea convention, one that, as to nine or ten major areas of normation, involves the spheres and interests of almost every one of our executive departments and a number of independent agencies and commissions as well. What agency will be responsible for the overall coordination of United States application of the convention? If there is no localization of sense of mission as to United States official performance, United States compliance cannot but be disjointed and episodic. The problem is highly important for the future, as it is foreseeable that more and more matters of planet-wide concern will come to be regulated by treaty in the same way for all nations. Should "Treaties" Be Approved Only by Simple Majorities in Both Houses? One of the conference participants, Professor Myres McDougal, with a co-author, demonstrated some years ago to the satisfaction of most students of the subject that "executive-legislative" agreements that come into effect by bills voted in both houses are entirely interchangeable with treaties ratified and promulgated by the President after he has received the advice and consent of two-thirds of the senators present and voting. 41 The fine question whether international agreements coming into effect in this bicameral way are "treaties" within the supremacy clause may be debated here, but the issue approaches mootness as judicial restrictions on the legislative powers of Congress have been relaxed. 42 The more important question now is whether the time has come to "democratize" the treaty process by deleting from the Constitution the old bias in favor of the Senate (the two-thirds principle), which has both made the Senate "the graveyard of treaties" and fed senatorial pretensions that they, but not members of the House of Representatives, are entitled by the Constitution to advise and give consent to presidential foreign policy lines of action that are not sent to the Senate for approval as treaties. In this connection, it is perhaps useful to keep in mind both the well-known account of President Washington's formal consultation with the Senate, 43 never repeated by him or by any other President since, and the uniqueness of the unicameral, weighted majority, upper chamber treaty-approval provision of our Constitution among the constitutions of other modern, developed, democratic states. In most other democratic states, indeed, the upper house is vestigial and can

254

Covey T. Oliver

only delay, but not eventually prevail over, the legislative will of the more populous branch.

Self-Executing Treaties O n most matters, the President and two-thirds of the senators may legislate (give internal effect as positive law) by treaty. Self-executing treaties are possible in a few other democratic systems, but not in most. They are impossible in Great Britain, where there is complete disjunction between the Crown's sole power to bind the realm internationally and Parliament's essential role in making the law of the land. In the constitution of the German Federal Republic, international agreements may only be ratified by legislation that first comes into effect as national law. In the United States, self-executing treaties have given some problems. These are problems of (1) determining which treaties are self-executing and which are not, usually a matter for judicial determination; (2) whether the President and the Senate may, by treaty, preempt the rights of the House to initiate (and a fortiori to vote on) revenue measures and to participate in laws for the disposition of the property of the United States. T h e last-stated problem may become crucial in the proposed new treaty with Panama as to the Canal and Zone. 4 4 Should self-executing treaties continue to be permitted? There is a link between this question and the one posed in the previous section. However, it should be noted that in executive practice—apparently acquiesced in by the Senate—treaties intended to have internal effect as law are no longer put into effect by use of the self-execution principle, because the Department of State no longer forwards treaties to the Senate for advice and consent until any needed implementing legislation is certain of approval by regular majorities in both houses. This practice, of course, tends to slow materially the completion of the treaty-approval process itself; and such delays are inherently contrary to the normal expectations of other nations that ratifications be speedily sought by any party signing a treaty ad referendum to such action.

CONSTITUTIONAL REVISION FOR FOREIGN AFFAIRS REASONS: STRUCTURAL ISSUES AND THE RANGE OF CHOICE W e have now reviewed, mainly from the standpoint of substantive policy preferences, the making and management of foreign policy under the Constitution of 1789. Attention should now shift to some very significant Issues of structure and function and to a sketch of possible constitutional revision, in a range from major change to no change. The Issues set out and discussed immediately following are seen as preliminary or conditioning factors in regard to revision, vel non, the last Issue posed herein.

T h e United States and the World

255

Four Conditioning Issues Issue: Under the present Consitution, is there a reliable and definitive process for deciding the repective foreign affairs authorities of the two political branches of thegovernment? Discussion of Issue: Attenticn here very rapidly comes to adjudication and impeachment-and-renoval-from-office. However, the latter is almost as impracticable an aternative as two others that are only mentioned for analytical competeness, due to their entire inappropriateness to situations of intenational crisis, where speed as well as sharpness of resolution are of :he essence. The two possibilities rejected out-of-hand are: (1) the 'resident or his congressional opposition goes to the country, a la Woodrow Wilson; (2) waiting for a series of "eyeball-to-eyeball" cinfrontations to cause one side or the other to blink—but not necessaily with all blinks in the series coming from a single side. 45 The only additional comment that occurs as to impeachmentremoval-from-office is that it settles nothing in a normative, authoritative manner, being always a lighly political process as well as one that causes discontinuity in government, as distinguished from shifts in the law by which governors are to be governed. The question of whether the judicial process shiiild eiplfld t6 deil With a r e a s clearly within the power of Congress to indict and remove from office, but not yet clearly declared by the Supreme Court also to be within judicial jurisdiction and willingress to adjudicate, is not, analytically, essential to this evaluation. Turning, then, to the fundimentals given to us so far by the Supreme Court, we find one lire of judicial utterances ("holdings" is too strong a word here)—the Curtiss-Wright Export Corporation46 line—that tends to discourage rsort to litigation to resolve separationof-powers issues in the foreigi relations field, precisely because the Court appears to give constitutonal carte blanche to the claimants of power. If, as Justice Sutherland pre-appointment viewpoint that he later wrote into his Curtiss-Wrght opinion asserts, the foreign affairs sovereignty of the nation is rot limited by the Constitution, there seems very little more that thecourts can do to resolve power struggles between the President am the Congress. However, the famous dictum probably lives today manly in l/.S. v. California*1 and its progeny, denying to the states of the Union the benefits of any independent juristic existence in th international legal order; and this is a matter of federalism that is iff the mark for us here. A relevant speculation as to he predictable limits of judicial resolution of the respective foreign ffairs authorities of the President and the Congress must project frcn Baker v. Cart48 through Powell v. McCormack49 to the Federal Election Act decision 30 of this past January. In the first of these cses, known to our political history for "one man-one vote," the Supeme Court (in dealing with the argument that the application of he guarantee of a republican form of

256

Covey T.

Oliver

government to the states had been held a nonjusticiable "political question" in Luther v. Borden11) reviewed the concept of "political question" as a limitation on justiciability. In a discourse designed to show the relativism of "political question," the majority said: Foreign relations: There are sweeping statements to the effect that all questions touching foreign relations are political questions. Not only does resolution of such issues frequently turn on standards that defy judicial applications, or involve the exercise of a discretion demonstrably committed to the executive or legislature; but many such questions uniquely demand single-voiced statement of the Government's views. Yet it is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance. Our cases in this field seem invariably to show a discriminating analysis of the particular question posed, in terms of the history of its management by the political branches, of its susceptibility to judicial handling in the light of its nature and posture in the specific case, and of the possible consequences of judicial action. For example, though a court will not ordinarily inquire whether a treaty has been terminated, since on that question "governmental action . . . must be regarded as of controlling importance," if there has been no conclusive "governmental action" then a court can construe a treaty and may find it provides the answer. Consider whether there is, in the above, any promise of a workable rule for resolution of the problem of this Issue, or in this, from the opinion in Representative Powell's successful suit against not having been allowed by the House to take his seat: Respondent's alternate contention is that the case presents a political question because judicial resolution of petitioner's claim would produce a "potentially embarrassing confrontation between coordinate branches" of the Federal government. But [our interpretation of Art. I, Section 5] falls within the traditional role accorded courts to interpret the law, and does not involve a "lack of respect due (a) coordinate branch of government," nor does it involve an "initial policy determination of a kind clearly for nonjudicial discretion." Baker v. Carr. Our system of government requires that federal courts on occasion interpret the Constitution in a manner at variance with the construction given the document by another branch. . . . Nor are any of the other formulations of a political question "inextricable from the case at b a r . " Baker. Petitioners seek a determination . . . for which clearly there are "judicially manageable standards" (emphasis added) U.S. v. Nixon,52 of course, distinguishes, from what the Court decided in that contention was within its power to say "what the law

T h e United States and the World

257

i s , " an executive-legislative jurisdictional dispute about foreign affairs powers. And Holtzman's effort against Secreta-y of Defense Schlesinger to have the judiciary rule on the constituionality of American combat presence in Southeast Asia attracted oily two justices. 5 3 A s C o x has put it: " T h e task of formulating a vorkable principle for delimiting the President's power to engage in nilitary activities overseas is far from e a s y . " 5 4 T r u e enough for courts, but seemingly not for Congress under the W a r Powers Resolution, uness the courts should be willing (and a movant have standing) to review the Congress! T h e Federal Election Act case 5 5 seems to trick the "Marbury v. Madison revived" line of cases just outlined, that is, while it is indeed the courts' business to say what the law is, they do so largely on the Supreme Court's terms. And these terms seem not sharp enough or predictable enough for reliable resdution of power contention between the two political branches as to their respective foreign affairs authorizations. Hence, the answer to this Issue, it would seem, is " n o . " So the question becomes, should the Constitution be changed so as to fix authority to resolve these contentions speedily, effectively, and normatively? This can be a question of the evolutionaiy structural adequacy of what we have. Consideration o f this questioi need not necessarily lead to a proposal for amendment. Institutional determination by the judiciary might suffice, assuming there are not tflO m i n y doubts about a " B o o k of J u d g e s " approach to America's future governance. Issue: Under present constitutional arrangements and congressional traditions, can Congress act effectively to discharge the new foreign affairs authorities that are being claimed in its name? Discussion of Issue: T h i s conditioning Issue as to future structure is well known to any person who has had acquaintance with Congress at work. There are two basic problems: (1) the conditions under which the executive branch must attempt to cooperate with the Congress; (2) the committee structure and traditional practices of the Congress. Even in the best of times there are conditions of endemic civil war between the two political branches. O n the Hill, executive spokesmen are suspect because, at the least, they are wary. O f t e n they are deceivers. Sometimes they are perjurers. Congress tends to conceive of itself as " u n - e n g a g e d , " as not being a part of the government in the sense of sharing responsibility, even for the continuation of foreign affairs lines of action that would not have 5>een possible without its concurrence at an earlier time, as Dean Rostow's contribution to Appendix L of the Murphy Commission Report demonstrates. T h e committee structure of Congress is notorious for its multifariousness and for the undemocratic seniority system. As bearing upon operations across the separation-of-powers chasm, it is well known that the multiplicity of congressional committees and empirebuilding chairmen and subchairmen depresses the quality of govern-

258

Covey

T. Oliver

ment in a range from undue demands upon the time of ministers and subministers of the executive to legislation-distorting conflicts of jurisdiction between committees and even subcommittees. Also, the committee staffs are growing phenomenally, rapidly tending toward becoming a second bureaucracy. And this second bureaucracy, unlike the bedeviled first (of the executive branch), is not compelled by congressional intervention to be alert to or answerable to public interest. Doubters may resort to a simple test: as a citizen, try to get an answer from (a) the executive bureaucracy and (b) the Hill bureaucracy. You will not get it from (b) unless you are important to an important legislator on that committee or subcommittee. You can almost always command it from (a), if other means fail, by getting your legislator to write to the agency where the executive bureaucrat works. Perhaps the situation just described is merely transitory. In the beginnings of executive bureaucracy under the Constitution of 1789, it may have been that Mr. Jefferson's several clerks at the "Department of Foreign Relations" were as remote from the demands of the citizenry as congressional staffers tend to be now—the mores of primitive bureaucracies being that the clerks answer to their masters, not to the public. And so, an old question repeats itself: Quis custodiet — n o t at the next election, but during the first three or of a " s a f e " Senate term? There are, here, other questions pertinent to the foreign affairs. I limit myself to posing only those of vance, assuming the continuation without substantial the present separation-of-powers system:

ipsos custodes four years, say, governance of particular relemodification of

1. W h y continue the special foreign affairs powers of the Senate? For that matter, why a Senate any longer—at least beyond an upper house that, representing establishmentarian interests, may delay but not prevent legislation? Perhaps our senatorial tradition, amply buttressed by the attitudes of certain members of that " c l u b , " is a bit more Roman than is safe if we are to ensure a non-Roman future. 2. If we were to consider essential unicameralism for the future, is the House too large? Are the terms of representatives too short? 3. W h a t of congressional committee structures, functional nonparallelism with the executive departments, overlapping jurisdiction, seniority? T h e main problem the American people have to face, though, as to the future role of Congress in relationship to foreign affairs, is this Issue: Issue: Does Congress accurately represent the outlooks and attitudes of the American people from time to time as to America's relationship to the rest of the world? O r does it distort both the people's outlooks and their attitudes?

T h e United States and the World

259

Discussion of Issue: Serious appraisers should at least think about the above Issue. Does Congress—always, usually, sometimes, or at this point in time—reflect better the foreign affairs goals of the American people than does the President? If the answer is "always" or "usually," and if what have beep normal congressional attitudes continue, we may have to resign ourselves to a maverick and isolated role in the world community, unless we are willing—and if willing, know where and how—to change our constitutional structure. Alternatively, what of the possibility that Congress might develop a continuous sense of responsibility to the country's relationships with the rest of the planet? As Justice Brandeis used to argue in another context, perhaps it is also true here that only from having real responsibility will true congressional effectiveness evolve. Issue: How much do contemporary problems being experienced by the United States in foreign policy formulation and execution arise from temporary conditions of American politics? and how much from the early stages of structural defects that will eventually require correction? Discussion of Issue: The pattern of increasing discontinuity between the political alignments of Presidents and of congressional majorities has been referred to previously, and the singularity of the Ford presidency is too well known to require comment. The question seems to come to be whether the present situation is too unusual to last, but to others it seems to be whether the present situation is or is not a mere variation of a fairly stable new pattern. It is hard for us to imagine unorthodox change under stress in this country. But ten years ago, unilateral, unannounced internationally unauthorized devaluation of the dollar was also unthinkable, and America's shift toward what other nations do in financial trouble was at first indirect and inadequate. But, before long we engaged in a straight-out write-down, as if we had been France, Germany, Great Britain, or numbers of other countries "less of the law" than these or we. And a President has been driven from office by his vulnerability to legislative trial. Unorthodoxies do happen! It is a simple fact of international life, amply recognized in customary international law, that states are more enduring than their forms of government. Stresses incompatible with governmental structure will change it to preserve the state itself. It is only our good fortune that so far has immunized us from this reality. Or is our Constitution less vulnerable than others have been? If so, why? The Range of Structural Change in the Constitution Issue: Shall there be constitutional revision for foreign affairs reasons, and, if so, what should be its dimensions? Discussion of Issue: It is beyond the function of this issues paper to propose an answer to this Issue or, if it should be answered " y e s , "

260

Covey

T. Oliver

to s u b m i t a plan f o r change. T h e function of this writer ends with the following sketch o f attitudinal alternatives and o f schematic variables that are to be taken as merely suggestive, not as exclusionary or definitive. A Synopsis of Constitutional Revision for Foreign Affairs Reasons I. " P r a c t i c a l i t y " aside, is constitutional change worth considering? W h y or w h y not? II. Alternatives to r e v i s i o n — t h e range o f : ( a ) institutional and individual self-restraint as between the "political b r a n c h e s " and the actors therein; (b) institutional rearrangments not requiring legislation or constitutional c h a n g e : the institutionalization o f executive-legislative cooperation; limits o f , under the Federal Election A c t case, if a n y ; (c) legislative changes not involving constitutional r e v i s i o n — a s against the b a c k d r o p of the proceeding Issue and the Federal Election Act decision. III. C h a n g i n g the C o n s t i t u t i o n — t h e range o f possibilities: (a) m a j o r c h a n g e : a b a n d o n separation of powers and put the executive for foreign affairs in the legislature (a cabinet form o f government for foreign affairs); (b) constitutional adjustments not negating separation o f powers (some possibly by "judicial a m e n d m e n t " ) . 5 6 1. S t a t e the territorial reach of the Constitution, f u n c t i o n - b y function, if need be. 2. Eliminate the exclusive role of the S e n a t e in approving treaties and provide that international agreements (all but very minor or technical ones) come into internal legal effect only b y simple majority approval in both houses. 3. Create a treaty-performance agency to ensure that in day-to-day operations the international treaty obligations of the United States are, in fact, lived up to throughout the federal government and b y the states. (This could probably be done without a m e n d m e n t of the C o n stitution.) 4. Permit certain types of regional or international entities which the United States m a y enter to act directly (erga omnes) upon persons and interests in the United States. 5. Fix the limits o f validity, if any, of executive privilege and of official secrecy in a foreign affairs context. 6. Clarify the authority of the judiciary in contentions between the C o n g r e s s and the executive as to their respective authorities ("political q u e s t i o n s " ) . 7. M a k e structural changes in the C o n g r e s s (not that Congress could not m a k e these without a m e n d m e n t , but because it does not do so). 8. State clearly w h e t h e r the President's power as c o m m a n d e r - i n chief includes sole or controlled authority (other than the congressional m o n e y power) to deploy military force outside the United States. 9. Modernize the concept of declaration o f war.

T h e United States and the W o r l d

261

10. Settle by positive constitutional determination the question whether Congress may participate in foreign affairs operations especially in regard to: (i) negation free of presidential veto of executive agreements made under previously delegated authority and under the President's chief of state (inherent) powers; (ii) mandatory executive application or not of appropriations to fund congressionally chosen foreign affairs goals; (iii) Senate "advise and consent" beyond its treaty-approval function; (iv) constitutional principles of separation of powers unsettled (if unsettlement there was) by the Supreme Court's decision in the Federal Election Act case as to the inability of congressional appointees to engage in other than legislative and investigative functions. 11. Weigh the desirability of giving the people plebiscite, initiative, and referendum powers, possibly by electronic voting. 12. Abolish or curtail the foreign relations powers of the Senate now denied to the House. 13. Provide longer terms and fewer numbers for members of the House of Representatives. 14. Expand congressmen's standing to sue and to object administratively to governmental foreign policy lines of action. 15. Provide that subsequent inconsistent legislation may not contradict the internal legal effect of a treaty until it is legally no longer in effect. 16. State clearly whether the power to end international agreements, including those with internal legal effects, is solely executive; or, alternatively, provide for legislative participation in the treatytermination power. 17. Decide whether the executive shall have (as presently the judiciary claims to have, not in decisions but in approaches to Congress) a right to funds adequate to maintain basic effectiveness as to its foreign affairs responsibilities. 18. Clarify the inquiry power of Congress as to the President's nondepartmental assistants and advisers. 19. Readjust federal-state relationships in the foreign affairs area if any such readjustment seems necessary in the overall interests of the nation. 20. Evaluate a plural presidency or some redistribution at the constitutional level of the present vast range of presidential responsibility. 21. Reexamine the amendment process under the Constitution of 1789 to determine whether it is too rigid and too difficult to achieve. 22. Reappraise, if relevant, the extent to which the Supreme Court has expanded the concept of judicial review and the use of contingent and conditional mandates and decide whether the powers of the courts in these particulars should be moderated or denied. 23. Shall the President be authorized to veto items in appropriations bills relating to the conduct of foreign affairs?

262

Covey T. Oliver

NOTES 1. T h i s report, " O r g a n i z i n g the Government to Conduct Foreign Policy: T h e Constitutional Q u e s tions," was distributed along with this issues paper to participants in the work of Committee IV through the courtesy of the University of Virginia Law Review 61 (1975), p. 747.

arrangements for foreign relations operations. However, Farrand, The Framing of the Constitution, by his time-sequence rearrangement of what went on at Philadelphia, tends to show that no mysteries were involved but, rather, that the framers had far more delicate and difficult internal issues of union than foreign affairs ones to face and settle and, having done so, engrossed their document and adjourned, leaving us with " . . . the 'bundle of compromises' known as the constitution of the United States . . . a practical piece of work for very practical purposes" (p. 201). " [ T h e framersl were dependent upon their experience under the state constitutions and the articles of confederation. John Dickinson expressed this very succinctly in the course of the debates when he said: 'Experience must be our only guide. Reason may mislead us' " (p. 204).

2. Widely referred to as the " M u r p h y Commiss i o n " in honor of its chairman, the Honorable Robert D. Murphy, a distinguished senior American diplomatist, this commission was required by Sec. 603(a) of the Foreign Relations Authorization Act of 1972, P. L. 92-352, 86 Stat. 489. The singularity of the requirement for reauthorization, as distinguished from fiscal appropriation, of the Department of State among the established departments of the executive branch is discussed herein. A livelier account of the origins o f the commission than that of its general counsel in his Introduction to the law review printing cited above is to be found in B. Welles, " T h e Genesis of the Murphy Commission—Congress, Commissions, and C o o k i e - P u s h i n g , " Foreign Service Journal 53 (January 1976), p. 11.

Nowadays, thanks to the Supreme Court's accretive creation of an unwritten constitution, the "foreign affairs legislative power of C o n g r e s s " has become a commonplace. Compare Henkin, Foreign Affairs and the Constitution, chap. 3, pp. 7 4 - 7 6 .

3. Covey T . Oliver, " T h e Enforcement of Treaties by a Federal S t a t e , " chap. 3, 1-1974, Recuei! des Cours, pp. 346, 348, Hague Academy of International Law.

12. T h e reference is to an interpretation of the wide-ranging obiter dictum of Justice Sutherland as the opinion-writer in United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 3 1 5 - 2 0 (1936).

4. R e m a r k s of the Prime Minister of Singapore at the W h i t e House, Weekly Compilation of Presidential Documents 11 (12 M a y 1975), p. 501, at p. 502. 5. T h e tally is that of B. Welles, " T h e Genesis of the Murphy Commission." 6. Even by 1949 in the writer's recollection, " r e organizing the Department of S t a t e " had become rather repetitive in Washington. 7. T h e reasons for modest scope in official reports on the reorganization of the government, especially as to its basic structure, are quite understandable. They are, perhaps, the same reasons the Congress of the United States, under the Articles of Confederation, did not undertake directly the revisory tasks that came to be performed by the Federal Convention of 1787. See, generally, M a x Farrand, The Framing of the Constitution (New Haven: Yale University Press, 1913), chap. 1. 8. J. Brandeis, dissenting in New State Ice Co. v. Liebmann, 285 U.S. 262 (1932), from the thenreigning notion that substantative due process required invalidation of state legislation limiting entry into a business denominated in that legislation as one affected with the public interest. 9. In the matter of the determination of the immunity of defendants from suit under the claim', of " s o v e r e i g n " immunity, settlement of nationalization claims, and so on. S e e generally, Restatement of the Law Second: The Foreign Relations Law of the United States (St. P a u l : American Law Institute Publishers, 1965), sec. 69, R.N. 1; 71; 212; 2 1 3 ; 214. 10. Louis Henkin, Foreign Affairs and the stitution ( M i n e o l a : Foundation Press, 1972).

Con-

11. W h y it did not is often said to be one of the several enigmas of silence in the Constitution as to

The United States and the World

13. Note, particularly, the comments of Professor Gerhard Casper, " O r g a n i z i n g the G o v e r n m e n t , " p. 777. 14. Consult the dissent of Senator M i k e Mansfield to the Report of the Murphy Commission. Welles, " T h e Genesis of the Murphy C o m m i s s i o n , " selects these phrases from this nonconcurrence of a commissioner: " . . . even a cursory reading of the Commission's report reveals a . . . timidity and paucity of substance . . .obvious lack of any consensus among the Commissioners . . . almost total absence of any consideration of the role of Congress." (Emphasis added.) T h e same source quotes Senator Mansfield on interview as characterizing the Murphy Commission Report as " . . . thin gruel . . . served in a very thick b o w l . " 15. See Oliver, The Enforcement of Treaties, chap. 4, pp. 3 6 3 - 6 5 , for a short explanation of the classic British discontinuity between treaty-making and internal treaty performance needing legislation and of the " P o n s o n b y R u l e , " whereby H M G usually provides Parliament with informational scrutiny of treaties by laying them on the table for a time. 16. This generalization is based upon personal observations and the reality that if the foreign minister's party has the votes, the opposition cannot make much of a not untypical " N o , s i r " refusal to respond at question time. 17. Blackburn v. Attorney-General [1971] C o m mon M a r k e t L. Reps. 784 [1971] 1 W . L . R . 1037 (Ct. of App.). 18. Compare Arts. 27 and 46 of the United Nations (Vienna) Convention on the Law o f Treaties; Restatement Second: Foreign Relations Law of the United States (1965), sec. 123, 132, 1 6 3 ; Oliver, The Enforcement of Treaties, pp. 3 5 4 - 6 0 .

263

19. 252 U.S. 416 (1920). 20. 354 U.S. 1, 16-17 (1957). 21. 343 U.S. 579 (1952). 22. Contrast Downes v. Bidwell, 182 U.S. 244 (1901) with Hawaii v. Mankichi, 190 U.S. 197 (1903); Dorr v. U.S., 195 U.S. 138 (1904); Balzac v. Puerto Rico, 258 U.S. 298 (1922). See, generally, Henkin, Foreign Affairs and the Constitution, chap. 10. 23. No. 29, 592, ACM 21707, 22 August 1975. Modified on reconsideration, 44 LW 2466 (1976). 24. 367 U.S. 643 (1961). 25. Loper, " 'Federal State' Clauses in Multilateral Instruments," 1960, University of Illinois Law Forum 1960 (Fall), p. 375 (a reprinting in monographic compendium); Oliver, The Enforcement of Treaties, chap. 6, pp. 404-7. 26. 418 U.S. 683 (1974). 27. P.L. 93-618, 3 January 1975, sec. 102(e), 125, 151, 152, 161. 28. Readers may wish to consider H.R. 4438, 94th Cong., 1st Sess. A high-water mark among legislative efforts to insulate the will of Congress as to the effectiveness of foreign affairs undertakings of the United States from presidential veto is a proposed "Executive Agreements Review Act of 1975," which deserves wider, scientific attention than so far it appears to have received. 29. The key committee in the Congress as to this vital aspect of foreign affairs policy is the House Banking and Currency Committee, not the House Committee on International Relations. In the Senate, consideration is by the Committee on Foreign Relations. 30. This is intended as a serious reflection on what may be the typical political organization of most of the world in a time of resource depletion and population increase, assuming for this purpose that mankind's seeming problems are not dissipated by benign development not now foreseeable. 31. Farrand, The Framing of the Constitution, repeatedly brings his readers back to the fundamental fact that the opposite was true in the beginning and in his time. He summarizes pertinently in his conclusion: Neither a work of divine origin, nor "the greatest work that ever was struck off at a given time by the brain and purpose of man," but a practical, workable document is this Constitution of the United States. Planned to meet certain immediate needs and modified to suit the exigencies of the situation, . . . it has been adapted by an ingenious political people to meet the changing requirements of a century and a quarter. (The year was 1913). But compare Henkin, Foreign Affairs and the Constitution, who ends his book with an approving requotation of what some others have considered "the sneer implicit" in Gladstone's peroration on the American Constitution, quoted and rejected above by Farrand, and the Liberal Prime Minister's contrasting reference to the British constitution as ". . . the most subtile [sic] organism which has proceeded from the womb and the long gestation of progressive history."

264

32. William Giandoni, "Latin Americans Spend Little On The Military," Copley News Service, Dallas Morning News, 10 March 1976, p. 70. 33. The President, who had been given the power to waive these but not all conditions precedent to American development assistance if, in his determination, the foreign affairs interests of the United States should so warrant (but with a burden of reporting and explaining), knew that the congressional groups involved would tolerate waivers as to countries in other areas for a variety of reasons but not as to the recipients of development assistance in the Western hemisphere. 34. P.L., 93-148 (1973). 35. Buckley v. Valeo, 424 U.S. 1, 109 (1976). In holding that the Federal Election Commission created by the Federal Election Campaign Act of 1971 could not continue to function in a rulemaking and executive management way for more than thirty days after mandate, the Court relied upon the separation-of-powers system of the Constitution and, following Springer v. Philippine Islands, 277 U.S. 189 (1922), held that legislative appointees to governmental bodies cannot perform executive functions. Compare H. Lee Watson, "Congress Steps Out: A Look at Congressional Control of the Executive," California Law Review 63 (1975), p. 983, at pp. 1029-48. The holding in part 4 of the lengthy opinion was unanimous in the per curiam decision. 36. I am indebted to William Bailey Lockhart, Yale Kamisar, and Jesse H. Choper, Constitutional Law—Cases, Comments, Questions (St. Paul: West Publishing Co., 1975), pp. 277-88 for very useful notes on impoundment and for reassurances as to the position taken in the text as to impoundment and foreign affairs. A disclaimer provision (Sec. 1001 (1)) declares that nothing in the Congressional Budget and Impoundment Control Act of 1974 ". . . shall be construed as asserting or conceding the constitutional powers or limitations of either the Congress or the President." 37. Louis Henkin, Arms Control and Inspection in American Law (New York: Columbia University Press, 1958). 38. 389 U.S. 429 (1968). Henkin, Foreign Affairs and the Constitution, chap. 9, is more moderate and restrained in his evaluation of this case. In it the Supreme Court, even with a disavowal of foreign affairs concern filed by the federal executive, held invalid an Oregon escheat statute denying inheritances to persons behind the Iron Curtain, unless the Oregon probate courts should be satisfied that these persons would actually be able to receive and enjoy the inheritances. Professor Henkin notes that the Court declared this to be an unconstitutional ". . . intrusion by the State into the field of foreign affairs which the Constitution entrusts to the President and the Congress." He adds: This is new constitutional doctrine. No doubt, an act of Congress or a treaty, probably an executive agreement, perhaps an official executive declaration, possibly even a rule made by the federal courts, could have forbidden what Oregon purported to do. Here there was no relevant exercise of federal

Covey T.

Oliver

power and no basis for deriving any prohibition by 'interpretation' of the silence of Congress and the President. . . . [The case] then, imposes additional limitations on the States but what they are and how far they reach remains to be determined. 39. T h e widely-accepted notion that the framers assumed from the beginning that the Senate should represent the states (almost as if official delegations from the states to the seat of the federal government) may be another of the numerous post hoc myths about the creation; see Farrand, The Framing of the Constitution, chap. 7. T h e Virginia Plan provided for the lower house to elect the Senate from nominees made by each state. T h e small states resisted a system of representation proportional to population in both houses; the " G r e a t C o m p r o m i s e " was to give them an assured two seats in the Senate, not necessarily to provide for the selection of these two by state legislatures. 40. Restatement

of the Law Second,

sec. 145.

41. Myres S. M c D o u g a l and Asher Lans, " T r e a t i e s and Congressional-Executive or Presidential Agreements: Interchangeable Instruments of National Policy," Yale Law Journal 54 (1945), pp. 181, 534. Consult, generally, Henkin, Foreign Affairs and the Constitution, chap. 6. 42. T h e point is often made that at any time since roughly 1938—at the latest—it would not have required a treaty with Canada to provide internal legal effect for preemptive federal legislation on migratory game birds because of judicial relaxation of old judicial limitations upon the subject-matter reach of ordinary legislation under the Article I enumerated powers—or even the evolved legislative powers, such as the "foreign affairs legislative power." Compare Missouri v. Holland, 252 U.S. 416 (1920). 43. Bernard Schwartz, A Commentary on the Constitution of the United States: The Powers of Government (New Y o r k : Macmillan Co., 1963), pp. 101, 150. 44. In some congressional and public opinion quarters, opposition to modification in Panama's favor of the 1903 treaty has taken to a "high ground" defense that, regardless of the constitutional power of the President and two-thirds of the Senate to alter our " a s if sovereign" status in the Canal Zone, the land area is owned (in fee simple) by the United States by purchase and hence cannot be disposed of without the consent of both houses. (Compare Art. IV, Sec. 3 and Art. I, Sec. 8). However, at the present time, the degree of opposition in the Senate itself suggests that even a new treaty arrangement would not receive the requisite extraordinary vote in the upper chamber. 45. Sometimes, as January 1976 news items remind us, the Congress blinks, as when the House refused to uphold the sweeping claims of its Select Committee on Intelligence. 46. United States See supra n. 12.

v. Curtiss-Wright

47. 332 U.S. 19 (1947).

The United States and the World

Export

Corp.

48. 369 U.S. 186 (1962). 49. 395 U.S. 486 (1969). 50. Supra

n. 35.

51. 7 How. 1 (U.S. 1 8 4 9 ) — g u a r a n t e e of a republican form of g o v e r n m e n t ; not a foreign relations "political question" case. 52. 418 U.S. 6 8 3 (1974). 53. 484 F.2d 1307 (2d Cir. 1973), cert. den. with opinions by M a r s h a l l and Douglas, J J , 4 1 4 U.S. 1304 (1973). 54. T h e citation is available t h a n k s to the richness of the notes in Lockhart, K a m i s a r and Choper, Constitutional Law Cases; Archibald Cox, " T h e Role of Congress in Constitutional D e t e r m i n a t i o n s , " University of Cincinnati Law Review 40 ( 1 9 7 1 ) , p. 199, at p. 204. 55. Buckley

v. Valeo.

See supra

n. 35.

56. There are very few proposals for general change on a major scale. See generally, Rexford G. Tugwell, The Emerging Constitution (New Y o r k : Harper's Magazine Press, 1974), issued under the imprimatur of the Fund for the Republic and based upon studies prepared for the Center for the Study of Democratic Institutions. T h i s plan for m a j o r revision is not, on the whole, oriented particularly toward the crisis of separation of powers in foreign relations; but there is a perspective in the introduction (p. xv) that is highly pertinent to the perspective of this issues p a p e r : A serious difficulty with any agreement embodied in a document and widely accepted, as the Constitution of 1787 eventually c a m e to be, is that its provisions eventually tend to b e c o m e scriptural. . . . Because this charter is thus massively founded it may easily . . . become obsolete as economic and social changes occur. The American instance of obsolescence is a serious one, strangely ignored in constitutional commentaries even by students of public law. Adam Yarmolinsky, " O r g a n i z i n g for Interdependence: The Role of G o v e r n m e n t , " Interdependence Series No. 5/Aspen Institute for Humanistic Studies, Program in International Affairs (1976), proposes elaborate reorganization of the executive branch and slight changes in congressional structure as necessary for the United States in a future of planetary " i n t e r dependence." The study also notes the existence now of a congressional bureaucracy, adding that as of the beginning of fiscal year 1976 there were 11,500 members of congressional staffs. T h e m a j o r thrust of the reorganization plan is that there be recognition in law of a diminished role for the Department of State, provision for the redistribution of powers in the executive branch to reflect the senses of mission and of capabilities for coping of a n u m b e r of other executive units, and congressional-legislative cooperation based upon the concept that no valid line exists any longer between " d o m e s t i c " and " f o r e i g n " lines of action. T h e current crisis at the constitutional level and the erga omnes problem are not featured in this study of "interdependence," which is, of course, not necessarily an idealized ingredient o f the future, but a likely necessity.

265

REPORT on the DELIBERATIONS of COMMITTEE IV by Noyes Leech and Stephen J. Schulhofer Part 1 by Stephen J. Schulhofer INTRODUCTION The mission of Committee IV was to assess the present constitutional framework for the conduct of relations between the United States and the rest of the world. T h e committee's deliberations focused upon the strengths and weaknesses of the present system and upon the desirability of changing particular features of our legal framework either by legislation or by constitutional amendment. In the second part of this paper my colleague Professor Leech analyzes those facets of the committee's discussions that focused upon the overall distribution of authority between the President and Congress, and upon the specific legal principles that govern the making and breaking of international agreements. This part of the paper considers the issues that arise, outside the scope of formal agreements between or among nations, in connection with the conduct of military and diplomatic affairs. The problems to be examined accordingly are large ones. They include the formation of American policy toward foreign countries, the day-to-day conduct of our relationships with the rest of the world, control of the military establishment, spending for defense and foreign aid, decisions regarding the use of military force and finally, decisions with particular regard to the use of nuclear force. But the committee did not, for the most part, consider it appropriate to discuss the specific policies that should or should not be formulated with respect to the substance of any of these matters. Rather, the committee addressed only the much narrower question whether we have organized ourselves in such a way as to make sound decision-making on these problems even possible in our third century. The present paper likewise concerns itself only with this relatively limited, structural question.

It is well to stress at the outset that the committee approached its task with a keen sense of the significance of the issues on its agenda. Senator Joseph Clark reminded the panel at the outset of its deliberations that the first question underlying its discussions would, in effect, be " [ I ] s America going to have a third century?" Indeed, at the opening of the Bicentennial Conference, Dean Louis Pollak pointedly drew the attention of all conference participants to the fact that as America closes its second century, it does so under the cloud of the tragedy of Vietnam. 1 The committee therefore undertook, with a strong sense of purpose, the responsibility of examining in some detail the arrangements that condition whether catastrophes of that magnitude, or of even greater, will be among the events that we should anticipate or must anticipate during the one hundred years to come. The committee did not find the kind of tendency observed by Committee III, a tendency on the part of Congress to delegate more and more authority to the executive branch of the government. On the contrary, the committee found in the field of foreign affairs a growing congressional will to participate actively in the conduct of the government's business. The view taken in the committee was that this will should be encouraged, but not encouraged by giving Congress new powers or new weapons to use against the executive. Rather it was the general view that we should seek ways to build bridges that will permit more effective cooperation between the two branches of government. Now, how can this aspiration be fulfilled? The committee considered first the possibility of changes at the constitutional level and then considered a variety of subconstitutional changes. C O N S T I T U T I O N A L CHANGES Among the constitutional changes, one that was discussed in some detail concerned the procedures for declaring war. The Constitution presently provides only the terse statement that " T h e Congress shall have Power . . . To declare War, . . ." 2 The realities of military deployment under contemporary conditions were, of course, scarcely contemplated when this language was drafted, and the committee therefore examined the desirability of modernizing this provision by including specific constitutional requirements for congressional and/ or presidential authorization prior to military undertakings of particular kinds. Other possibilities for constitutional change were also considered. The committee discussed the usefulness of granting explicitly to Congress the executive power to manage certain types of foreign relations activities, such as trade negotiations. The committee also examined the desirability of including in the Constitution a provision spelling out the authority of the executive branch to withhold information from Congress on grounds of official secrecy or executive privilege. With respect to each of these proposals, the general view in the

268

Stephen

J. Schulhofer

and Noyes

Leech

committee was that constitutional change was not necessary or even desirable at the present time. One reason for this reluctance to press amendments to the Constitution was very forcefully expressed by Bayless Manning: W h a t we see or perceive right now in the short-term focus of our political glasses as structural difficulties in the Constitution are profoundly reflective of what are essentially underlying political bubblings and splits. Not only do we have the interjection of a different design for the doing of international business, the Senate, and not only do we have underlying nonconsensus of a political character, . . . and have all of these things simultaneously in the most healed political environment the society has seen since the Civil War. . . . It would seem to me that is hardly the most appropriate time to inquire and to have a clear vision as to whether the structural arrangements which have served with rather remarkable aggregate success for 200 years will continue to serve us. While a number of committee members expressed disagreement with this analysis, they likewise concluded that constitutional change was inappropriate. These committee members found evidence of significant structural weakness in our constitutional system, but took the view that the present constitutional language provides an appropriately flexible framework within which creative solutions for these structural problems may over time evolve. These committee members therefore turned their attention to the kinds of subconstitutional changes that would lay the foundation for this sort of structural improvement. SUBCONSTITUTIONAL

CHANGES

In the course of the committee's examination of proposals for subconstitutional change in our governmental structure, four problems received particularly detailed attention. These were the use of military force, Congress's ability to obtain and use information bearing on foreign relations issues, congressional oversight, and the role of the courts. The Use of Military Force The W a r Powers Resolution, enacted over President Nixon's veto in 1973, 3 marks the beginnings of congressional control over the deployment of American forces. Under the resolution, whenever American armed forces are introduced "into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances," the President must within forty-eight hours provide Congress with a written report explaining the circumstances necessitating the involvement and the estimated scope and duration of the involvement. 4 T h e resolution also provides that the forces must be withdrawn within sixty days unless Congress has declared war,

Deliberations of Committee IV

269

enacted a specific authorization for the continued use of American forces, or enacted legislation extending the sixty-day period. 5 Finally, the resolution requires that without regard for the sixty-day time limit: [A]t any time that United States Armed Forces are engaged in hostilities outside the territory of the United States, its possessions and territories without a declaration of war or specific statutory authorization, such forces shall be removed by the President if the Congress so directs by concurrent resolution [a form of congressional action not subject to presidential veto] ,6 There has been considerable public discussion concerning the constitutionality of this historic legislation. In his veto message, President Nixon asserted flatly that the resolution was "clearly unconstitutional." 7 Although this view is not wholly without scholarly support, 8 there was strong support within the committee for the position that the measure represents a legitimate exercise of powers granted to Congress under the Constitution and does not constitute an improper interference with the President's authority as commander-in-chief. 9 On the contrary, the concern that was expressed, and very forcefully expressed by some members of the committee, was that the War Powers Resolution does not go far enough. In the War Powers Resolution and in congressional action generally, there has been great insensitivity to evolving restrictions under international law upon the use of force. The committee spent some time discussing the nature and effectiveness of these restrictions. The Kellogg-Briand Pact of 1928,10 to which the United States and nearly all other major powers are signatories, 11 provides that the signatory nations "renounce [war] as an instrument of national policy in their relations with one another." Similarly, Article 2(4) of the United Nations Charter provides that "All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state." 1 2 In spite of these apparently clear and unequivocal restrictions, the precise scope of the prohibition against the use of force as an instrument of national policy remains uncertain. In part, this uncertainty is attributable to the fact that the U.N. Charter itself authorizes the use of force in "individual or collective self-defence," 1 3 an exception that continues to defy workable definition. Beyond this, the commentators and publicists continue to debate the validity of other, unwritten exceptions permitting the use of force in anticolonial or humanitarian interventions, and the like. And in the absence of a functioning mechanism for enforcing international law, it seems undeniable that state-supported violence not falling within any conceivable exception continues on a large scale throughout the world. 14 Under these circumstances not all members of the committee were prepared to recognize that meaningful restrictions upon the use of force do exist under international law. But Professor Louis Henkin

270

Stephen

J. Schulhof er and Noyes

Leech

probably reflected a prevalent view among panel members when he concluded that " t h e principle [against the use of force] is firm and generally accepted, [although] the opening up of exceptions has made that, unhappily, less clear than it could b e . " And as Ambassador Philip Jessup put it: [international law is not like a teacup which, when once broken, is irretrievably ruined; and the fact that you have these breaches of international law is no evidence that the rule does not exist. Against this background, Professor Richard Falk stated a view shared by many on the panel when he expressed his shock that " t h e W a r Powers Act itself is completely drafted as if the United Nations Charter . . . never existed, and it assumes presidential discretion to use force in a kind of legal vacuum." A number of participants therefore stressed the need for much greater attention to the evolving restrictions upon the use of force, not only in day-to-day practice, but also in the applicable domestic legislation. Beyond this, the committee saw a need for special attention to the use of nuclear force. Discussed in some detail were the procedures that could permit congressional consultation prior to the use of nuclear weapons. These procedures are not nearly so impractical as they might at first blush appear, because in some situations several days or even weeks may elapse before a decision to make tactical or defensive use of nuclear weapons will be acted upon. Committee members did not generally express support for requiring approval by the full Congress in such cases, but it was considered desirable to explore the possibilities of constituting a standing committee of five or six members of Congress, whose concurrence in this very momentous type of decision would be required. The committee also considered the possibility of imposing substantive limits on the use of nuclear force, as a matter of domestic law. An example of such a limit would be a rule prohibiting first use by the United States. Many members of the committee favored exploring the feasibility of a restriction of this type. The committee's view, it is fair to summarize, was that expansion of congressional control over the use of force, in the various ways described above, would be constitutional. The attitude was somewhat less widespread that all the proposals mentioned would be desirable, but the committee nevertheless endorsed, as a general matter, the notion of exploring these possibilities very seriously. Congressional Ability to Obtain and Use Information Despite the support expressed in the committee for the proposals thus far described, the committee was clearly unanimous in feeling that changes of this kind, whether desirable or not, cannot by themselves accomplish very much. Regardless of the statutory principles in force, the effectiveness of congressional control in the final analysis depends upon Congress's

Deliberations of Committee IV

271

ability to evaluate particular fact situations, usually at a time of crisis. In this Congress has not been particularly successful. Prior to the War Powers Resolution, the experience with Tonkin Gulf makes it quite clear that, even if that resolution had been in effect, Congress would have issued the necessary authorizations based on the information initially available to it. 15 Subsequent to the War Powers Resolution, the initial congressional response to the Mayaguez incident pointed in exactly the same direction. 16 So the committee concluded that there was need for changes of a very different type. This second group of changes concerns getting information to Congress and improving its ability to use that information. Here, the first area of difficulty involves the problems of state secrets and executive privilege. The present procedures for classifying and declassifying national security information are set forth in an executive order promulgated in 1972. 1 7 Even when disclosure of foreign affairs information could not endanger national security, however, Congress and the public may, under some circumstances, be denied access to that information by operation of the doctrine of executive privilege. 18 Many committee members very strongly expressed the view that these privileges of secrecy and confidentiality are invoked far too often by the executive branch of the government. On the other hand, there was a recognition that some confidentiality and indeed a good deal of confidentiality is necessary not only to protect American security but also to insure full debate at the lower levels of government. In this area, the committee saw a need for much greater restraint by the executive in invoking privileges of confidentiality. In addition, a total overhaul of our classification system for official secrets was considered desirable. 19 The other facet of the information problem is the need to strengthen congressional capacity to use effectively the information that, hopefully, it will be able to obtain. In this area, Congress already has three very important arms for research and analysis. These are the Office of Technology Assessment, 20 the Library of Congress 21 and the General Accounting Office. 22 To date, however, these tools have not been used as frequently in the foreign relations area as they could be. The committee found a definite need to strengthen these three arms of Congress and, in particular, to involve them actively in the problems of defense and foreign relations. A notable example of the kind of involvement the committee had in mind was provided some months after the close of our deliberations, with the publication of the General Accounting Office investigation of the Mayaguez incident. 23 The budget process is another area in which Congress has not been well organized for effective action. Until recently, congressional authority over expenditures was dispersed throughout a number of independent committees. Coordinated review of spending priorities and of the overall impact of the budget on the national economy was therefore impossible. In addition, Congress had no staff comparable to the President's Office of Management and Budget, and presidential

272

Stephen

J. Schulhofer

and Noyes

Leech

budget proposals were normally submitted only a few months before congressional action on them was required. 24 In an effort to cope with these problems Congress has recently enacted legislation establishing a budget committee in each house of Congress, and creating a Congressional Budget Office with responsibility for analyzing the impact of budget proposals and reporting on them to the budget committees. 2 5 The legislation also establishes new timetables that will permit better long-term planning and more thorough analysis of requests for expenditure authorizations. Committee members viewed these reforms as most promising and urged that they be put to active use in evaluating military and foreign relations questions. Congressional Oversight Even if all the recommendations in the two areas thus far considered should be fully implemented, the committee unfortunately was not particularly optimistic about the prospects for a vast change in the quality and nature of decision-making. Congressional participation in advance of decisions on major issues is seldom likely to be effective in influencing the result. Therefore, the need that was perceived by many was for a much more active use of the technique of legislative oversight after the event. The committee did not share the reservations that were expressed with regard to this technique by Committee III. The predominant view taken in Committee IV was that Congress should be the Monday morning quarterback and should play that role not rarely and reluctantly but willingly and often, not only when executive actions are unpopular or would appear to be unsuccessful from the military standpoint, but whenever foreign policy or military initiatives of major significance are instituted. T h e proposals for improvement in the three areas thus far considered represent very basic changes, but they do not appear to be barred by constitutional concepts of separation of powers. In the issues paper, Professor Oliver did raise the question whether, in light of the recent Federal Election Commission decision, 26 the Supreme Court may be taking a stricter view of the required division of functions among the branches of government. 2 7 The committee did not view this decision as posing an impediment to the particular kinds of cooperation between the branches that I have outlined. If, however, judicial decisions should evolve in such a way as to cast doubt upon the validity of such measures, then many committee members would endorse constitutional amendment to permit the kind a sharing of authority in the foreign relations field that they considered appropriate. The Role of the Courts T h e committee considered a variety of issues relating to the role of the judicial branch within the constitutional framework for the conduct of foreign relations. In the companion paper Professor Leech

Deliberations of Committee IV

273

discusses the possibility of using the courts to help resolve questions concerning statutes in derogation of treaty obligations. The same possibility arises in connection with questions regarding claims of executive privilege, the validity of deployments of troops under the War Powers Resolution, and other issues of law that might arise under the type of legislation that I have described. The scope of judicial involvement in questions of this kind presently depends upon the various doctrines of "justiciability." In order to be considered justiciable, a dispute must involve a genuine "case or controversy" between the parties, rather than a mere request for an advisory opinion. 28 The dispute also must be "ripe" for decision, in the sense that judicial involvement is not deemed premature, 29 but the dispute must not be "moot," in the sense that judicial involvement is deemed to come too late. 30 The party bringing the case must have "standing," that is "such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions." 31 And the issue presented to the courts must not be regarded as a "political question," 32 a requirement that is easy to state but virtually impossible to define.33 The importance of these doctrines became all too obvious during the course of efforts to challenge the constitutionality of the war in Vietnam. Although the decisions were not uniform, most courts found an absence of "standing" in suits brought by taxpayers 34 or by members of Congress. 35 And where the "standing" requirement was met, as in cases brought by servicemen facing duty in Vietnam, most courts held the suit to involve a nonjusticiable "political question." 36 The view has been expressed, perhaps most notably and most forcefully by Dean Louis Pollak in his President's Lectures last year at the University of Pennsylvania, that these doctrines should be modified by statute so that the courts may play a larger role in determining the validity under our own Constitution of military operations undertaken by the President. 37 Dean Pollak proposed that Congress be given standing to use, in its own name, to obtain a judicial declaration of what the law is, if the executive and legislative branches should be in disagreement concerning the legality of action involving the use of American forces. Some committee members expressed reluctance to take that step. Their concern seemed to center primarily on two factors. First was a hope that restraint will prevail. Several members of the committee argued that in the field of foreign relations, separation of powers will work best if each branch of government refrains from pushing its power to the limit. Second, if a clash between the executive and legislative branches should occur, these committee members argued that the existing doctrines of justiciability provide more flexible and more appropriate tools, with which judges may determine for themselves whether they ought to become involved in questions of this delicate nature. The concern expressed by these members was that a more active judicial

274

Stephen

J. Schulhof er arid Noyes

Leech

role in matters of this kind might put a strain upon the courts and, in particular, upon their ability to contribute to the resolution of the many controversial domestic problems with which they undoubtedly will be faced. O t h e r members of the committee, however, appeared to view a relaxation of the prevailing notions of justiciability as well worth its costs. All agreed, however, that the very sensitive questions concerning the role of the courts should remain in the forefront of those under examination. It is well to stress that there was no unanimity with respect to the various issues that have been discussed. There was, however, a very pervasive attitude in the committee that a more active role by Congress is desirable and that a number of institutional changes, some of as yet uncertain shape, need to be pursued to make this role possible. These changes, all of them subconstitutional, many of them even substatutory, will nevertheless yield what has to be regarded as a quantum change in the level of congressional involvement in the foreign relations field and hopefully a quantum change in the quality of that involvement.

Deliberations of Committee IV

275

Part 2 by Noyes Leech This part of the paper reports the varying responses of a diverse group of individuals to Professor Oliver's paper. It does not report my own point of view and my own reaction to his paper. The committee did not consider the issues paper as an adversary document, but rather as, in fact, what it purported to be: a statement of issues that ought to be considered by the committee. A CONSTITUTIONAL CRISIS? There was a thematic point of view that ran through Professor Oliver's paper, to which the committee members responded. In his statement of several of the issues, Professor Oliver observed that Congress is currently expressing a strong will to participate in the making of foreign policy. He also noted that we are presently operating in a state of unrelieved separation of powers. In his judgment, these two conditions impose serious impediments on the ability of the executive branch, and therefore of the United States, to enter into immediate and reliable commitments with foreign states. 1 Committee members appeared ready to recognize that the phenomenon described by Professor Oliver, namely, the crisis in the exercise of our foreign relations power, did exist in some measure and that this was created by the congressional will to participate, complicated in part by the system of separation of powers. Possibly the clearest expression of this point of view within the committee came from Professor Gardner, who reported: The United States is now behind by quite a few years in its commitments to the replenishment of the International Development Association and various regional development banks. Can we think of any other major country in which a commitment by the president to put money up for international development purposes is two, three, four, five years later not implemented because of the refusal of the legislature? As a second example, we are embarked on a series of multilateral trade negotiations in Geneva in which everyone concedes the heart of the matter to be non-tariff barriers. The agreement of the President's representative in Geneva is a very dubious thing. It has to be implemented under the provisions of the trade bill by Congress, and no one can say with assurance whether the Congress will carry out those commitments. Is there any other major country in the world whose executive branch cannot deliver with respect to commitments on those matters? I think pragmatically, whatever the formalities may be, we are really unique among major countries. However, many members of the committee did not share the view that, in international affairs generally, the United States was in such a peculiar position that it was unduly hampered in its power to carry

276

Stephen J. Schulhofer and Noyes Leech

on foreign relations effectively. Although it was recognized that the requirement either of Senate advice and consent to treaties or of congressional approval of international agreements did impede the making of commitments that could be immediately and confidently relied upon by foreign states, it was observed by committee members that other countries are frequently impeded by parliamentary rules with like effect, although of a different structure. A number of members of the committee voiced the view that the difficulties of the United States in this regard are not necessarily structural but depend upon differing political points of view held by the President and the Congress. 2 In any event, the committee was almost completely of the view that no need presently exists for amendments to the foreign affairs provisions of the Constitution. Although the committee was reminded that its charge enjoined it to look off into the distance of the United States' third century, no one was able confidently to predict that there would be developments that would inevitably require constitutional amendment. However, as I will discuss later, there was recognition of some remote contingencies that might signal the need for some specific amendment. EXECUTIVE A N D CONGRESS In the main, the disposition of the committee was to deal with the relationship between the executive and the Congress as one of continuing political balance that could be comfortably (and by that term I do not mean "serenely") accommodated within the confines of the present constitutional structure. The tension that exists between the two branches was recognized as a more or less permanent feature of governmental structure in the United States, with the ultimate balance of power the product of a process variously described as a "tug of war," "push come to shove," and "ebb and flow." It was emphasized that many of the evils that are seen flowing from the so-called imperial presidency resulted not from Congress's lack of constitutional authority but from its non-use of its admitted powers. The cure for these evils was perceived as attainable through what came to be called in the committee "subconstitutional means": new practices, new institutions, new legislation—in short, through ordinary political and legislative processes. O n e particular point of view about Congress's alleged inability to act with efficiency should be mentioned. This point of view was not shared wholly by all members of the committee, but it does represent a distinct and different attitude that should be described. As Professor Falk posed the issue, it is "the question as to whether, in the absence of a popular consensus, one wants an efficient foreign policy." The argument proceeds somewhat as follows. There is not a popular consensus favoring national action in many matters, for example, United States involvement in Angola. The executive branch should not act without a widespread consensus. Congress is now a better institution than the executive branch to record the existence of such

Deliberations of Committee IV

277

consensus as may develop. The executive should not act until Congress supports national action on the basis of whatever consensus it observes, reports, or represents. If, as a consequence of congressional participation in the process, the executive cannot take immediate action of its own choosing, that is simply an inevitable consequence of a process that promotes desirable political values. Again quoting Professor Falk: So I think a lot of the concern with structure, in a way, is a displaced concern with policy, and I think that is important to keep in mind because it leads one toward looking to constitutional remedies for what are largely political frustrations. . . . I think that one of the characteristics of the present period is that there is a failure of consensus in a number of fundamental dimensions. The most obvious dimension is the dimension of policy. I think the Vietnam experience has created a fundamental policy split between an interventionary activist diplomacy in the world and essentially a predisposition for a kind of neo-isolationist withdrawal. That is part of what is reflected in the congressionalexecutive tension. If you look at the key issues, Angola being the most recent one, it is a congressional predisposition toward withdrawal and nonintervention and an executive predisposition toward activist interventionary diplomacy. In my view, it is better for society as a whole not to be drawn into activist pastures in the absence of a very powerful consensual mandate, because the absence of a powerful consensual mandate is what I think places the domestic system under tremendous strain, as one saw in the latter part of the Vietnam period, where there wasn't a genuine consensus underlying the policy. That led to tremendous encroachments upon a lot of other aspects of congressional patterns of government, just to mobilize enough support to carry on the policy that didn't possess the wide popular basis of support. Professor Falk concluded this analysis with the observation that the "ineffectuality" that has resulted from the present congressionalexecutive tension is taking place in a period of transition toward a new kind of consensus. He saw this as "essentially a healthy byproduct of the constitutional arrangement rather than something one should seek to overcome." Although other members of the committee did not expressly endorse this analysis of the present political position, some of them appeared to agree that the current satisfactions or dissatisfactions with the operation of the separation of powers principle do not arise from constitutional structure itself but rather from what was referred to by one member as "essentially underlying political bubblings and splits." For the most part, the members of the committee were in agreement that it was in order to hold a conference to study the constitutional problems of foreign affairs, as distinguished from the

278

Stephen J. Schulhof er arid. Noyes

Leech

political ramifications of the subject. However, one member, Senator Clark, expressed concern over a narrow reading of the committee's charge which would exclude consideration of a number of issues other than constitutional interpretation, issues he considered essential to " a sound consideration of America's third century." These issues are set forth in the note in the Senator's own words. 3 T h e committee recognized the imposing and impending nature of these problems. Members of the committee nevertheless asserted that it was highly appropriate for the committee to focus its own study on the question of the ways in which the United States could organize itself to deal rationally with those problems. Therefore, it identified the constitutional and subconstitutional issues to which it was addressing itself at this conference as useful questions to be considered in order to create the necessary organization of the resources of the United States government and of its people for the solution of those vital substantive problems. INTERNATIONAL

AGREEMENTS

The challenges posed by Congress's assertion of its will to participate in the making of foreign policy raised a number of discrete constitutional problems. T h e committee considered how certain problems of congressional-executive branch organization relating to international agreements might be approached. These problems are: the making of international agreements, the termination of the effect of international agreements as internal United States law, and joining and participating in the work of international organizations. M y colleague, Mr. Schulhofer, addressed a number of other questions that have arisen in the area of separation of powers; I will deal with these three matters relating to international agreements. Making International Agreements International agreements are made by the United States in three principal forms: (1) the treaty, requiring a two-thirds vote of "advice and consent" by the Senate; (2) the executive agreement made pursuant to authority given by treaty or by Congress; and (3) the executive agreement made pursuant to the President's constitutional authority. 4 A number of members of the committee expressed a preference for entering into international agreements through the device of the agreement made by the executive branch under authorization by both houses of Congress, including in some cases broad policy authorization. Authorization might be given prior to the making of the agreement or by ratification after the agreement has been made. In any event, authorization would be given through the normal legislative process: a simple majority vote by the House and the Senate, followed by the signing of the authorizing bill by the President. O f course, this mode should be contrasted with the treaty-making process, requiring a two-thirds vote by the Senate. 5 The committee gave consideration to proposing an amendment to remove from the Constitu-

Deliberations of Committee IV

279

tion the requirement of two-thirds Senate advice and consent. W i t h such an amendment, the main agreement-making device would then consist of presidential action authorized or ratified by the two houses in the normal legislative process. In the committee there was a widespread feeling that, in principle, the two-thirds vote was not desirable or, indeed, rationally supportable under today's conditions, and that the ability of one-third of the Senate plus one senator to block international agreements should not be imbedded in the Constitution. 6 But most members of the committee were reluctant, and at least one member was unwilling, to assume the serious political costs they thought would be needed to procure that amendment at this time. O n e other member, however, was of the opinion that these costs might well have to be paid at some time not too far in the future. There was inconclusive discussion of the question of the constitutional problems that might arise in connection with the making of a new agreement relating to the Panama Canal. T h e need for such an agreement was perceived as so great that, if a treaty were to be blocked by a minority of senators, it was thought possible that the two houses of Congress might try to approve such an agreement by simple majority vote. 7 It was suggested that this would be a critical test of the survival of the right of a Senate minority to insist upon an exclusive Senate role in the making of international agreements. T h e committee addressed the further question of Congress's regulation of the executive agreement by devices other than normal legislative authorization or ratification. T h e committee considered a procedure that could operate as a congressional veto but that would itself be free of the presidential veto. Under this procedure, all executive agreements would be reported to Congress, but Congress could veto the agreement if, within a period of time, it should vote by concurrent resolution of both houses not to allow the agreement to stand. 8 Since the concurrent resolution does not require presidential signature, this procedure would operate to give Congress a veto over agreements entered into by the President. 9 It was asserted in the committee that, in view of the fact that in congressional practice the concurrent resolution had not been subject to the President's veto and had not been used for basic legislation, 1 0 it was inappropriate to use it to control such basic matters as international agreements. In general, members of the committee accepted this argument, although there was recognition of the fact that one reason there was a movement to give Congress such a strong role in the area of executive agreements was the fact that the Case Act, requiring the reporting of executive agreements to the Congress, had been evaded in the past." Peculiar problems were recognized with respect to one type of executive agreement: the agreement entered into by the President on the basis of his own constitutional authority, e.g., as commander-inchief. 1 2 It was agreed that a congressional veto by way of the concurrent resolution would be unconstitutional if applied to a presidential agreement based on his individual powers. O n e member was con-

280

Stephen

]. Schulhof er and Noyes

Leech

cerned whether the President's constitutional authority, as presently understood, would cover such commitments as an agreement to use nuclear weapons in defense of South Korea. Asserting that an agreement of that scope ought not be made by the executive alone, he suggested that a constitutional amendment was needed to limit the President's power. While not going so far as to support amendment of the Constitution, one other member supported Congress's emerging effort to be involved in the making of international agreements. Professor Henkin sought to sharpen the issue as follows: [T]he question is: involvement in what way? The Case Act is involvement, and if you broaden it, strengthen it, etc., you have congressional involvement. [One of our members] suggested involvement by broad policy outlines in advance, and in areas like trade, which are areas clearly in the congressional domain, n o one would quarrel with that. . . . But if you are talking about involvement in all executive agreements, and if you are talking about this particular device of concurrent resolution, then I have serious problems about certain kinds of agreements, and it seems to me that it is there that we might have some lines to be drawn. 1 3 The committee did not essay to draw those lines, perhaps reflecting Professor McDougal's "individual statement" that "the gentlemen who sat here two hundred years ago thought it most unwise to try to define in detail the powers of the President; they preferred to leave this to future exigence." Termination of Internal Effect of International Agreements It is currently understood to be the law that, although a treaty made under the authority of the United States is the supreme law of the land, 14 if Congress enacts a statute inconsistent with a prior treaty the statute (which is also the supreme law of the land) supplants the treaty as internal law.' 5 The committee deplored the casual use of such a practice by the Congress, since it leaves the country in violation of its international duties under the treaty. There was a strong disposition to devise procedures to make Congress aware of the seriousness of breaching international obligations in this fashion. Suggestions were made—and appeared well received by members of the committee—that treaties be drafted to include sanctions to be suffered by the United States in the event of treaty breach (which would include breach resulting f r o m congressional enactment of inconsistent legislation). It was pointed out that the General Agreement on Tariffs and Trade provides a procedure for making a form of compensation to a party whose interests have been prejudiced by a violation of that agreement. 16 Some thought there ought to be a constitutional amendment that would place the international agreement in a position superior to legislation, even legislation enacted later than the agreement. O n e operative effect of such an amendment could be to allow

Deliberations of Committee IV

281

the Supreme Court to declare an act of Congress ineffective as internal law if it should conflict with an obligation under an international agreement. 1 7 Most who spoke in favor of such an amendment thought it was not presently likely to be adopted. Judge Jessup suggested: Suppose short of . . . constitutional amendment, which I would favor but hold to be away in the future, you set up by statute, which of course could be repealed, . . . that if the President based a veto of a statute on the ground that passage of that statute would be a violation of our international obligations, Congress could then . . . be authorized to take the issue to court and let the court determine whether this was violation of our international obligations and, if so, Congress would not be able to override the veto. 1 8 There was inconclusive discussion in the committee about this suggestion and questions raised about whether a constitutional amendment would be required to accomplish the result. Professor McDougal made a strong plea for preserving largely intact the present system for terminating treaties, which he saw as allowing the Congress to take the lead in some cases, the President to take the lead in others. I don't think there should be any one branch of government that predominates over the others. I like this very fluid system in which they can all get in a say, and it's really priority in time that prevails. W h e n you are dealing with conflicting treaties, conflicting statutes, conflicting presidential agreements, and so forth, if they are within their competence, the Court has always held that the latest in time prevails. . . . [I]t seems to me that in its broad framework this is a pretty good system, and we have a way of ultimately getting answers [that are] compatible with our long-term common interest. The committee reached no consensus on a single way to deal with the question of the enactment of legislation violative of the international obligations of the United States. Political difficulties appeared to stand in the way of some of the suggestions, not the least of which would be the difficulty of procuring the constitutional amendments that would be required in some cases. Professor Lipson thought that repeal of the Connally Reservation 1 9 " m a y be politically difficult . . . but politically a good deal easier" than a number of other suggestions. He asserted: [A] measure that would as a matter of statute declare the willingness of the United States to accept the jurisdiction of an international tribunal, seized with [the] question whether a measure is inconsistent with the international obligations of the United States, would have some difficulty, but repeal of the Connally Reservation would be a step on the way.

282

Stephen

]. Schulhof

er and Noyes

Leech

INTERNATIONAL ORGANIZATIONS T h e question of joining and participating in international organizations resulted from the committee's looking down the years into the next century. T h e committee projected that there would be a desire on the part of the United States to join international organizations of an increasingly sophisticated type. Such highly developed organizations, possibly regional in character and dealing with technical concerns such as economic integration, might follow the pattern of some European organizations that provide for dealing directly with persons and entities within the territory of the member states. 2 0 Organizations of this type do not act simply on the state alone. Professor Oliver posed to the committee the question whether under our constitutional structure (on such matters as the judicial power of the United States 2 1 and the guarantees of the Bill of Rights) the United States could lawfully join such organizations without violating constitutional provisions. It was the view of some of the committee members that the cases that appeared to nullify international agreements that conflicted with the Constitution 2 2 may not in fact do so in this instance. No one argued that the courts should cease to measure the provisions of charters of international organizations by constitutional standards; such charters are a form of treaty in themselves. However it was urged b y some that judicial development might well accommodate the United States' joining such organizations without the necessity of constitutional amendment. This is not to suggest that the courts would not be alert to protect United States citizens against deprivation of liberties. Presumably the courts will insist upon the employment of fair procedures by any international organization of which the United States becomes a member, even though the procedures do not follow the same patterns as those established in this country. Some members of the committee expressed the view that the constitutional problems arising upon joining some kinds of international organizations could be quite complex, if the matter were approached without amendment of the C o n stitution. 2 3 T h e committee members appeared to agree with one member who asserted that this was an area in which the necessity of constitutional amendment ought to be reserved on what he called a contingency basis. If, at some time in the possibly distant future, the courts are not sufficiently sensitive to national needs, and do not interpret the Constitution so as to permit United States membership in highly developed international organizations essential to its interests (and possibly to its survival), he asserted that it would then be necessary to make membership possible in those organizations through whatever amendments of the Constitution were required.

Deliberations of Committee I V

283

NOTES Parti 1. Louis Pollale, "Keynote Address," The Annals of the American Academy of Political and Social Science 426 (July 1976), p. 9 at p. 18. 2. U.S. Constitution, see Art. I, Sec. 8, CI. 11. 3. P.L. 93-148, 87 Stat. 5SS, 50 U.S.C. Sec. 1541 et seq. (Supp. III, 1973). 4. Ibid., Sec. 1543(a)(1). 5. Ibid., Sec. 1544(b). The President can unilaterally extend the sixty-day period by not more than an additional thirty days, if he certifies that military necessity requires the continued use of American forces to effectuate the prompt and safe removal of these forces. 6. Ibid., Sec. 1544(c). 7. "Veto of War Powers Resolution," Weekly Compilation of Presidential Documents 9 (27 October 1973), p. 1285, at p. 1286. 8. For example, Eugene Rostow, "Great Cases Make Bad Law: The War Powers Act," Texas Law Review 50 (May 1972), p. 833. 9. For a full development of this view, see, for example, Raoul Berger, "War-Making by the President," University of Pennsylvania Law Review 121 (1972), p. 29. 10. 46 Stat. 2343, 94 U.N.T.S. 59 (1929). 11. See Noyes Leech, Covey T. Oliver and Joseph Sweeney, The International Legal System (Mineola: Foundation Press, 1973), p. 1210. 12. 1970 Yearbook of the United Nations, p. 1001. 13. See Art. 51, ibid., p. 1007. 14. For a useful collection of materials dealing with these matters, see Leech, Oliver & Sweeney, The International Legal System, at pp. 1202-68. 15. See Gulf of Tonkin Resolution, P.L. 88-408, 78 Stat. 384 (1964), repealed, P.L. 91-672, sec. 12, 84 Stat. 2053 (1971). Information that subsequently became available put the matter in quite a different light. See Hearings on the Gulf of Tonkin, the 1964 Incidents, Before the Senate Committee on Foreign Relations, 90th Cong., 2d Sess. (1968).

taps," Indiana Law Journal 49 (Spring 1974), p. 399; Note, "National Security and the Amended Freedom of Information Act," Yale Law Journal 85 (1976), p. 401. 20. See Technology Assessment Act of 1972, 2 U.S.C, sees. 471-81 (1973). 21. The Library of Congress was established on 24 April 1800. See 2 Stat. 56. Its responsibilities which have expanded substantially over time, are set out in 2 U.S.C, sees. 131-69 (Supp. 1975). See also Office of Federal Reporter, U.S. Government Manual (Washington: Government Printing Office, 1975), pp. 53-58.

16. See generally, Jordan Paust, " T h e Seizure and Recovery of the Mayaguez," Yale Law Journal 85 (May 1976), p. 774. Eighteen months after the incident, the General Accounting Office issued a report taking a far more critical view of the way the incident had been handled. See G A O report, "The Seizure of the Mayaguez: A Case Study of Crisis Management," ID-76-45, 11 May 1976.

33. See Louis Henkin, Foreign Affairs and the Constitution (Mineola: Foundation Press, 1972), pp. 2 1 0 - 1 6 : Louis Henkin, "Is There a 'Political Question' Doctrine," Yale Law Journal 84 (1976), p. 597.

17. Executive Order No. 11, 652, 6 March 1972, Federal Register 37, 33 C.F.R. sec. 339 (1974), p. 5209.

35. See, for example, Holtzman v. Schlesinger, 484 F.2d 1307 (2d Cir. 1973), cert, den., 416 U.S. 936 (1974); Gravel v. Laird, 347 F. Supp. 7 (D. D.C. 1972). Contra, Mitchell v. Laird, 488 F.2d 611, 614 (D.C. Cir. 1973).

18. See University p. 1383.

Archibald Cox, "Executive Privilege," of Pennsylvania Law Review 122 (1974),

19. For a discussion of some of the principal shortcomings of the present system and suggestions for reform, see Charles R. Nesson, "Aspects of the Executive's Power over National Security Matters: Secrecy Classifications and Foreign Intelligence Wire-

284

22. The General Accounting Office was created by the Budget and Accounting Act of 1921, 31 U.S.C, sec. 41 (1976). For an analysis of its present responsibilities, see U.S. Government Manual, at pp. 44-49. 23. See GAO, ' T h e Seizure of the Mayaguez: A Case Study of Crisis Management." 24. For discussion of these matters, see the Report of the House Rules Committee on the Congressional Budget and Impoundment Control Act, H.R. Rep. 93658, 93rd Cong., 1st Sess. (1973). 25. Congressional Budget Act of 1974, P.L. 93344, 88 Stat. 297 (1974). 26. Buckley

v. Valeo,

424 U.S. 1 (1976).

27. Covey T. Oliver, "The United States and the World," The Annals of the American Academy of Politica! and Social Science 426 (July 1976), p. 166. 28. United States v. Freuhauf, 365 U.S. 146 (1961); Muskrat v. United States, 219 U.S. 346 (1911). 29. Postum Cereal 272 U.S. 693 (1927). 30. California 308 (1893).

Co. v. California

v. San Pablo

Fig Mut Co.,

& T.R. Co., 149 U.S.

31. Baker v. Carr, 369 U.S. 186, 204 (1962). See also Flast v. Cohen, 392 U.S. 83 (1968). 32. Luther v. Borden, 48 U.S. (7 How.) 1 (1849); see Baker v. Carr, n. 31, supra.

34. See, for example, Pietsch v. President of the United States, 434 F.2d 861 (2d Cir. 1970), cert, den., 403 U.S. 920 (1971); Velvel v. Nixon, 415 F.2d 236 (10th Cir. 1969), cert, den., 396 U.S. 1042 (1970).

36. See, for example, Da Cosna v. Laird, 471 F.2d 1146 (2d Cir. 1973); Luftig v. McNamara, 373 F.2d 664 (D.C. Cir. 1967), cert, den., 387 U.S. 945 (1967); Atlee v. Laird, 347 F. Supp. 689 (E.D. Pa. 1972), aff'd., 411 U.S. 911 (1973). In one contrary

Stephen

]. Schulhofer

and Noyes

Leech

decision, the Court held the question not to be " p o l i t i c a l " and reached the merits, but then rejected the challenge to the constitutionality of the war on the ground that Congress had in fact authorized or ratified the relevant military operations. Orlando v.

Laird, 443 F.2d 1039 (2d Cir. 1 9 7 1 ) , cert, den., 404 U.S. 869 (1971). 37. Louis H. Pollak, " T h e Constitution as an Experiment," University of Pennsylvania Law Review 123 (1975), p. 1318, at pp. 1 3 3 7 - 3 8 .

NOTES Part 2 1. Indeed, Professor Oliver spoke to the committee of the " c o n c e r n , irritation and loss of confidence abroad in the predictable performance of the United States along this or that foreign affairs line of act i o n " and asserted " t h a t our potential capacity is somewhat limited and that our actual capacity for operations in the world arena as other states operate is significantly limited n o w . " 2. As pointed out in the committee, the basic difficulty in the foreign affairs field arises from the fact that the executive and the legislative branches may represent different political parties. Structural (i.e., constitutional) changes would be required to change that fact, as for example to institute a British parliamentary style of government. 3. " O n e , is there a need for a new world order? " T w o , are global resources so finite that we must plan better on a global basis for their just use? " T h r e e , what limits, if any, should be imposed on national sovereignty? "Four, what are Americans going to do about poverty, hunger, and disease, if anything? "Five, is there a need for improved population control, and, if so, what does America do about it? " S i x , how can we build effective machinery to keep the peace? " S e v e n , what should American policy be with respect to the oceans? "Eight, air and water pollution. How should America deal with them in a global setting? " N i n e , what should our policy be with respect to international trade and monetary reform? " T e n , what should our attitude be towards expanding the scope of international l a w ? " 4. T h e constitutional bases for the making of international agreements are detailed in sees. 1 1 7 - 2 1 of Restatement of The Law Second: Foreign Relations Law of the United States (St. P a u l : American Law Institute Publishers, 1965). See also, Daniel Patrick O'Connell, International Law, 2d ed. ( D o b b s Ferry: Oceana Publications, Inc., 1970). T h e author sets forth a select list of executive agreements entered into by the United States in recent years (categorized by reference to prior and subsequent congressional approval and by inherent presidential power). T h e list is reprinted in Leech, Oliver and Sweeney, The International Legal System, p. 1013. See supra n. 11. 5. United States Constitution, Art. II, Sec. 2. 6. One member asserted that even at the time of the framing of the Constitution there was no rational basis for the two-thirds rule and that the rule was a compromise that had led, over the years, to the development of the congressional-executive agree-

Deliberations of Committee IV

ment device to by-pass the strict treaty-making process. See generally, M y r e s S. M c D o u g a l and Asher Lans, " T r e a t i e s and Congressional-Executive or Presidential A g r e e m e n t s : Interchangeable Instruments of National Policy," Yale Law Journal 54 (1945), pp. 181, 534. In committee discussion it was asserted: Nobody has been able to give a rational reason in contemporary times. If the one-third is needed to protect some special interest, it is a special interest. If you ask yourself what special interest is to be protected, if you don't relate it to long-term common interests, it's just naked power, and there is no place for that in our constitutional structure. 7. See the account in William W . Bishop, Jr., International Law, 2nd ed. ( B o s t o n : Little, Brown & Co., 1962) at p. 103 of the admission of T e x a s to the Union by joint resolution after S e n a t e rejection of an annexation treaty. 8. T h e Executive Agreements Review Act of 1975, H.R. 4438, 94th Cong., 1st Sess., provides for transmittal to Congress of each executive agreement regarding a "national c o m m i t m e n t " (defined to cover agreements on deploying armed forces abroad or the provision of military or nuclear technology or other resources to a foreign country). T h e bill provides for the coming into effect of the executive agreement sixty days after such transmittal unless both houses by concurrent resolution state they do not approve the agreement. 9. U.S. Constitution, Art. I, Sec. 7 provides: " E v e r y Order, Resolution or Vote to which the Concurrence of the S e n a t e and House of Representatives may be necessary . . . shall be presented to the President of the United S t a t e s " (and be subject to his veto). Under long-standing congressional practice, concurrent resolutions have not been submitted to the President, under an interpretation of the foregoing provision. 10. " I t has been employed as a means of claiming for the houses the power to control or recover powers delegated by Congress to the President." Edward S. Corwin's The Constitution and What It Means Today (Princeton: Princeton University Press, 1973), p. 31, (citing the Reorganization Act of 1939, the Lend-Lease Act of 1941, the First W a r Powers Act of 1941, the Emergency Price Control Act of 1942, the Stabilization Act of 1942 and the W a r Labor Disputes Act of 1943). 11. 1 U.S.C., Sec. 112b (Supp. V 1 9 7 5 ) : T h e Secretary of State shall transmit to the Congress the text of any international agreement, other than a treaty, to which the United States is

285

a party as soon as practicable after such agreement has entered into force with respect to the United States but in no event later than sixty days thereafter. However, any such agreement the immediate public disclosure of which would, in the opinion of the President, be prejudicial to the national security of the United States shall not be so transmitted to the Congress but shall be transmitted to the Committee on Foreign Relations of the Senate and the Committee on Foreign Affairs of the House of Representatives under an appropriate injunction of secrecy to be removed only upon due notice from the President.

17. There is an analogy to the Supreme Court's declaring a statute ineffective because it conflicts with a provision of the Constitution (i.e., it declares the statute "unconstitutional").

12. For example, armistice agreements are entered into under that authority. The famous Litvinoff Assignment arose under the President's constitutional power to recognize foreign governments. (U.S. Constitution, Art. II, Sec. 3 : " . . . receive Ambassadors and other public Ministers"). See United States v. Belmont, 301 U.S. 324 (1937).

19. 61 Stat. 1218. As is well known, the so-called Connally Reservation to the submission of the United States to the compulsory jurisdiction of the International Court of Justice contains a provision whereby the United States itself determines whether or not a matter falls essentially within its domestic jurisdiction. This "self-judging" reservation is thought to give the United States the power to decide in a particular case whether or not it will submit to the court's jurisdiction, the antithesis of a genuine compulsory submission to that jurisdiction.

13. The Trade Agreements Act of 1934 inaugurated Congress's delegation of power to the President to make agreements in this field. The current legislation is to be found at 19 U.S.C. sec. 1351. 14. U.S. Constitution, Art. VI, CI. 2. 15. "This Court has also repeatedly taken the position that an Act of Congress . . . is on a full parity with a treaty, and that when a statute which is subsequent in time is inconsistent with a treaty, the statute to the extent of the conflict renders the treaty null. Reid v. Covert, 354 U.S. 1, 18 (1957). 16. The General Agreement on Tariffs and Trade of 30 October 1947, 61 Stat. Part 5, A 12, 55 U.N.T.S. 187, provides in Art. XXVIII for a reciprocal withdrawal of tariff concessions by a party confronted by another state's modification or withdrawal of a prior concession.

286

18. With respect to the standing of Congress to maintain such a suit, the committee member recalled an analogous suggestion by Dean Louis Pollak that, under certain circumstances, Congress by concurrent resolution should be authorized to bring suit in its own name in federal court in connection with certain issues under the War Powers Resolution. Pollak, " T h e Constitution as an Experiment," at p. 1338. See supra n. 37.

20. In the European Community, individuals and corporations, though nationals of member states of the community, can be found by the community's commission to have violated its antitrust laws and other regulations. 21. " T h e judicial power of the United States, shall be vested in one supreme court, and in such inferior courts as the Congress may from time to time ordain and establish." U.S. Constitution, Art. Ill, Sec. 1. 22. For example, Reid v. Covert; see supra n. 15. 23. See, for example, Nathaniel L. Nathanson, "The Constitution and World Government," Northwestern University Law Review 57 (1962), p. 355.

The Constitution OF THE UNITED STATES OF AMERICA

We the People of the United States, in Order to 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, do ordain and establish this Constitution for the United States of America. ARTICLE I. SECTION 1. 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. SECTION 2 . The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature. No Person shall be a Representative who shall not have attained to the Age of twenty-five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen. [Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three-fifths of all other Persons.]* The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they

'Changed by section 2 of the fourteenth amendment.

287

shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand,* but each State shall have at Least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode-Island and Providence Plantations one, Connecticut five, New-York six. New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five. South Carolina five, and Georgia three. When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies. The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment. SECTION 3. The Senate of the United States shall be composed of two Senators from each State, [chosen by the Legislature thereof,]** for six Years; and each Senator shall have one Vote. Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as equally as may be into three Classes. The Seats of the Senators of the first Class shall be vacated at the Expiration of the second Year, of the second Class at the Expiration of the fourth Year, and of the third Class at the Expiration of the sixth Year, so that one-third may be chosen every second Year; [and if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies.]*** No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen. The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided. The Senate shall chuse their other Officers, and also a President pro tempore, in the absence of the Vice President, or when he shall exercise the Office of President of the United States. The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present. Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law. SECTION 4. The Times, Places and Manner of holding Elections for ' R a t i o in 1965 was one to over 410,000. " C h a n g e d by section 1 of the seventeenth amendment. " ' C h a n g e d by clause 2 of the seventeenth amendment.

288

The Constitution

of the United States of

America

Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Place of Chusing Senators. The Congress shall assemble at least once in every Year, and such Meeting shall [be on the first Monday in December,]* unless they shall by Law appoint a different Day. SECTION 5 . Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide. Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two thirds, expel a Member. Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal. Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting. SECTION 6 . The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place. No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office. SECTION 7 . All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills. Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration ' C h a n g e d by section 2 of the twentieth amendment.

The Constitution of the United States of America

289

two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two-thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by Yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law. Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by twothirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill. SECTION 8. The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States; To borrow money on the credit of the United States; To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States; To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures; To provide for the Punishment of counterfeiting the Securities and current Coin of the United States; To establish Post Offices and post Roads; To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries; To constitute Tribunals inferior to the supreme Court; To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations; To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years; To provide and maintain a Navy; To make Rules for the Government and Regulation of the land and naval Forces; To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining the Militia,

290

The Constitution of the United States of America

and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress; To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;—And To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof. SECTION 9. The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person. The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it. No Bill of Attainder or ex post facto Law shall be passed. No capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken."' No Tax or Duty shall be laid on Articles exported from any State. No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another. No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time. No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State. SECTION 10. No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any BUI of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility. No State shall, without the Consent of the Congress, lay any *But see the sixteenth amendment.

The Constitution of the United States of America

291

Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing its inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress. No State shall, without the Consent of Congress, lay any duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay. ARTICLE II. SECTION 1. The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows. Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector. [The Electors shall meet in their respective States, and vote by Ballot for two persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Maimer chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote; a quorum for this Purpose shall consist of a Member or Members from two-thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President.]* •Superseded by the twelfth amendment.

292

The Constitution of the United States of America

The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States. N o person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States. *[In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the same shall devolve on the Vice President, and the Congress may by Law, provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.] The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be encreased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them. Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:—"I do solemly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States." SECTION 2 . The President shall be Commander in Chief of the Army and N a v y of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion in writing, of the principal Officer in each of the executive Departments, upon any subject relating to the Duties of their respective Offices, and he shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment. He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session. ' T h i s clause has been affected by the twenty-fifth amendment.

The Constitution of the United States of America

293

SECTION 3. He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States. SECTION 4. The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors. ARTICLE I I I . SECTION 1 . The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office. SECTION 2. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;— to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;—between a State and Citizens of another State;—between Citizens of different States;—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects. In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. The trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed. SECTION 3. Treason against the United States, shall consist only in levying W a r against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

294

The Constitution

of the United

States of

America

The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted. ARTICLE IV. S E C T I O N 1 . Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof. S E C T I O N 2. T h e Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States. A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime. [No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.]"' SECTION 3. New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress. The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State. S E C T I O N 4. T h e United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence. ARTICLE v .

The Congress, whenever two-thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two-thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three-fourths of the several States, or by Conventions in three-fourths thereof, as the one or 'Superseded by the thirteenth amendment.

The Constitution of the United States of America

295

the other Mode of Ratification may be proposed by the Congress: Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate. ARTICLE V I .

All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation. This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States. ARTICLE V I I .

The Ratification of the Conventions of nine States shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same. in Convention by the Unanimous Consent of the States present the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and Eighty seven and of the Independence of the United States of America the Twelfth.

DONE

In Witness whereof We have hereunto subscribed our Names. Go WASHINGTON Presidi and deputy from Virginia New

Hampshire.

John Langdon Nicholas Gilman

Pennsylvania.

Massachusetts. Nathaniel Gorham Rufus King New Wil : Livingston David Brearley.

296

Wm Paterson. Jona: Dayton

Jersey.

B Franklin Robt. Morris Thos. FitzSimons James Wilson Thomas Mifflin Geo. Clymer Jared Ingersoll Gouv Morris

The Constitution of the United States of

America

Virginia.

Delaware.

John Blair James Madison Jr.

Geo:Read John Dickinson Jaco: Broom Gunning Bedford jun Richard Bassett

North

Wm Blount Hu Williamson Richd Dobbs Spaight.

Connecticut. Wm Saml Johnson Roger Sherman New

Carolina.

South

Carolina.

J. Rutledge Charles Pinckney Charles Cotesworth Pinckney Pierce Butler

York.

Alexander Hamilton Maryland. James McHenry Danl Carrol Dan: of St Thos Jenifer Georgia.

William Few Abr Baldwin Attest: WILLIAM JACKSON,

Secretary.

Articles in Addition To, and Amendment Of, the Constitution of the United States of America, Proposed by Congress, and Ratified by the Legislatures of the Several States, Pursuant to the Fifth Article of the Original Constitution.* (The ftrst 10 Amendments were ratified December 15,1791, form what is known as the "Bill of Rights")

and

AMENDMENT I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press ; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. AMENDMENT II

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. •Amendment XXI was not ratified by state legislatures, but by state conventions summoned by Congress.

The Constitution of the United States of America

297

AMENDMENT I I I

N o Soldier shall, in time o f peace b e quartered in a n y house, w i t h out t h e c o n s e n t o f the O w n e r , nor in time of war, b u t in a m a n n e r to b e prescribed b y law. AMENDMENT IV

T h e right o f the people to b e secure in their p e r s o n s , h o u s e s , papers, a n d effects, against unreasonable searches and seizures, shall n o t b e violated, and no W a r r a n t s shall issue, but upon p r o b a b l e cause, supported b y O a t h or affirmation, and particularly describing the place to b e searched, and the persons or things to b e seized. AMENDMENT V

N o person shall be held to answer for a capital, or o t h e r w i s e inf a m o u s crime, unless on a presentment or indictment of a G r a n d J u r y , except in cases arising in the land or naval forces, or in the Militia, w h e n in actual service in time o f W a r or public d a n g e r ; nor shall a n y person b e subject for the same offence to be twice put in jeopardy o f life or l i m b ; nor shall b e compelled in any criminal case to b e a witness against himself, nor be deprived o f life, liberty, or property, without due process o f l a w ; nor shall private property be taken f o r public use, without just compensation. AMENDMENT VI

In all criminal prosecutions, the accused shall e n j o y the right to a speedy and public trial, b y an impartial jury of the S t a t e and district wherein the crime shall have b e e n committed, which district shall h a v e been previously ascertained b y law, and to b e i n f o r m e d of the n a t u r e and cause o f the accusation; to b e confronted with the w i t n e s s e s against h i m ; to have compulsory process for obtaining witnesses in his favor, and to have the A s s i s t a n c e o f Counsel for his defence. AMENDMENT VII

In suits at c o m m o n law, w h e r e the value in controversy shall exceed t w e n t y dollars, the right o f trial b y jury shall b e preserved, and no fact tried b y a j u r y , shall b e otherwise reexamined in any C o u r t of the U n i t e d States, than according to the rules o f the c o m m o n law. AMENDMENT VIII

E x c e s s i v e bail shall not b e required, n o r excessive fines imposed, n o r cruel and unusual punishments inflicted. AMENDMENT IX

T h e enumeration in the C o n s t i t u t i o n , o f certain rights, shall not b e construed to deny or disparage others retained b y the people.

298

The Constitution

of the United States of

America

AMENDMENT X

T h e powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. AMENDMENT XI

(Ratified February 7, 2795) The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. AMENDMENT XII

(Ratified July 27,

1804)

T h e Electors shall meet in their respective states and vote by ballot for President and Vice President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the S e n a t e ; — T h e President of the Senate shall, in presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;—The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from twothirds of the states, and a majority of all the states shall be necessary to a choice. [And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice President shall act as President, as in the case of the death or other constitutional disability of the President.—]* The person having the greatest number of votes as Vice President, shall be the Vice President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be neces* S u p e r s e d e d by section 3 o f the twentieth amendment.

The Constitution of the United States of America

299

sary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice President of the United States. AMENDMENT XIII

(Ratified

December

6,1865)

SECTION 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. SECTION 2. Congress shall have power to enforce this article by appropriate legislation. AMENDMENT XIV

(Ratified

July

9,1868)

SECTION 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. SECTION 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age,* and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State. SECTION 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability. SECTION 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions "•Changed by section 1 of the twenty-sixth amendment.

300

The Constitution of the United States of America

and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void. SECTION 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article. AMENDMENT XV

(Ratified February

3, 1870)

SECTION 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude— SECTION 2. The Congress shall have power to enforce this article by appropriate legislation. AMENDMENT XVI

(Ratified February

3,1913)

The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration. AMENDMENT XVII

(Ratified April 8, 1913) The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures. When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct. This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution. AMENDMENT XVIH

(Ratified January 16, 1919) [SECTION 1. After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited. [SECTION 2. The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.

The Constitution of the United States of America

301

[SECTION 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.]* AMENDMENT XIX

{Ratified August

18,1920)

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex. Congress shall have power to enforce this article by appropriate legislation. AMENDMENT XX

(Ratified January

23,1933)

SECTION 1. The terms of the President and Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin. SECTION 2. The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3d day of January, unless they shall by law appoint a different day. SECTION 3. If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified. SECTION 4. The Congress may by law provide for the case of the death of any of the persons from whom the House of Representatives may choose a President whenever the right of choice shall have devolved upon them, and for the case of the death of any of the persons from whom the Senate may choose a Vice President whenever the right of choice shall have devolved upon them. SECTION 5. Sections 1 and 2 shall take effect on the 15th day of October following the ratification of this article. SECTION 6 . This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission. •Repealed by section 1 of the twenty-first amendment.

302

The Constitution of the United States of America

AMENDMENT XXI

(Ratified December

5, 1933)

SECTION 1 . The eighteenth article of amendment to the Constitution of the United States is hereby repealed. SECTION 2. The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited. SECTION 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several States, as provided in the Constitution, within seven years f r o m the date of the submission hereof to the States by the Congress. AMENDMENT XXII

(Ratified February 27, 1951) SECTION 1 . N o person shall be elected to the office of the President more than twice, and no person w h o has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once. But this Article shall not apply to any person holding the office of President when this Article was proposed b y the Congress, and shall not prevent any person who may be holding the office of President, or acting as President, during the term within which this Article becomes operative from holding the office of President or acting as President during the remainder of such term. SECTION 2 . This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission to the States by the Congress. AMENDMENT XXIII

(Ratified March 29, 1961) SECTION 1 . T h e District constituting the seat of Government of the United States shall appoint in such manner as the Congress may direct: A n u m b e r of electors of President and Vice President equal to the whole n u m b e r of Senators and Representatives in Congress to which the District would be entitled if it were a State, but in no event more than the least populous State; they shall be in addition to those appointed by the States, but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a State; and they shall meet in the District and perform such duties as provided by the twelfth article of amendment. SECTION 2. The Congress shall have power to enforce this article by appropriate legislation. AMENDMENT XXIV

(Ratified January 23, 1964) SECTION 1 .

T h e right of citizens of the United States to vote in any

The Constitution of the United States of America

303

primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax. SECTION 2. T h e Congress shall have power to enforce this article by appropriate legislation. AMENDMENT XXV

(Ratified

February

10,1967)

SECTION 1 . In case of the removal of the President from office or of his death or resignation, the Vice President shall become President. SECTION 2. W h e n e v e r there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress. SECTION 3. Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President. SECTION 4. Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President. Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within fortyeight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.

304

The Constitution

of the United States of

America

AMENDMENT XXVI

(Ratified

July 1, 1971)

SECTION 1. The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age. SECTION 2 . The Congress shall have power to enforce this article by appropriate legislation.

The Constitution of the United States of America

305

INDEX

SUBJECT INDEX

Adair, Douglass G. on majority factions, 4 8 - 4 9 on science of politics, 4 5 - 4 6 Adams, Henry on Andrew Johnson's administration, 32 on Ulysses S. Grant's administration, 32 Aiken, George D., on Vietnam W a r , 123 Amendments to the U.S. Constitution 1st, 6 9 - 7 0 , 74, 8 3 - 8 5 , 87, 205 2nd, 7 0 - 7 1 3rd, 7 0 - 7 1 4th, 5th, 6th, 7th, 8th, 9th, 10th, 11th, 12th, 13th, 14th, 15th, 16th, 17th, 18th, 19th, 25th,

7 0 - 7 1 , 8 2 - 8 3 , 87, 240 33, 70, 8 2 - 8 3 , 87, 9 9 - 1 0 0 70, 8 2 - 8 3 , 87 70 70, 87 71, 1 5 6 - 5 7 3 1 - 3 2 , 71 90 18-19 30, 57, 75, 95 3 1 - 3 3 , 57, 75, 87, 95, 1 0 1 - 2 31, 57, 75, 95 34, 90 198, 251 90 95 220, 230. See also Bill of

Rights; Equal Rights Amendment American political system and American "science of politics," 4 5 - 5 8 , passim British traditions in, 4 6 - 4 7 and capacity to change, 44, 57 and compact theory of state, 65 criterion for effectiveness of, 1 3 1 - 3 3 effect of on foreign policy decision-making, 233-45 on public policy-making, 2 2 4 - 2 7 of limited government, 4 6 - 4 8 , 6 3 - 6 6 loss of confidence in, 4 3 - 4 4 and political leadership in Revolutionary era, 4 9 - 5 0 of popular sovereignty, 4 7 - 4 9 relevance of Revolutionary values to, 4 3 - 5 4 as representative government, 47, 49-50 Articles of Confederation, 1 8 - 1 9 , 2 5 26 Bagehot, Walter, 19 Bell, Daniel, 165 Bill of Rights British antecedents in, 6 9 - 7 0

and Constitution, 1 8 - 1 9 , 6 9 - 7 1 and Declaration of Independence, 71-72, 94-95 guarantees in, 6 9 - 7 1 nationalization of, 8 7 - 8 8 as statement of natural rights, 69 See also Constitution Black, Charles L„ 27 Black, Hugo L., 145 and Brown v. Board of Education, 146 on Criswold v. Connecticut (marital privacy), 73 on incorporation of Bill of Rights in 14th Amendment, 87 on religion and education, 85, 88 on Supreme Court appointments, 117 Blackstone, Sir William, Commentaries 46 on the Laws of England, Bok, Curtis, Backbone of the Herring (on selection of judges), 116 Brandeis, Louis B., 145 on federal system, 151 Brennan, William J., Jr., on Supreme Court appointments, 117, 145 Bryce, l ord, on U.S. Supreme Court, 121 bureaucracy. See President; public policy; regulatory agencies Burger court on concept of equality, 74 on individual rights, 8 1 - 8 2 , 84, 88, 100 on natural rights, 73 Cabinet. See

President

Cardozo, Benjamin, 145 on judicial "legislating," 119 on scope of 14th Amendment, 87 Case Act, 280 Chaffee, Zechariah, on 1st Amendment, 69-70 Channing, Edward, on English government and social order, 66 Chase, Samuel, 30, 87 church-state relations and 1st Amendment, 6 9 - 7 0 , 74, 8 4 85 and religion and education, 8 4 - 8 5 , 88 Cicero, on the nature of law and state in De Legibus, 64 citizen participation in government, 227-30 effect of, on electoral process, 1 8 1 84 in foreign affairs, 2 5 0 - 5 3 , 262

citizen participation in g o v ' t . — c o n t . through local government, 1 8 2 - 8 3 , 206 public education toward, 207 under revenue sharing, 2 2 7 - 2 8 and voter registration proposals, 229 civil rights affirmative action, 7 6 - 7 7 , 1 0 4 - 5 alleged subversives, 8 0 - 8 1 Brown v. Board of Education, 38, 75-76 Civil Rights Act of 1957, 134 Civil Rights Act of 1964, 34, 76, 135 Civil Rights Act of 1968, 135 Civil Rights Cases, 33 criminal procedures, 74, 8 1 - 8 2 discrimination against women, 7 7 - 7 8 equality of opportunity, 52, 66, 75, 7 7 - 7 8 , 102 equality of position, 7 6 - 7 7 , 1 0 2 - 3 expansion of " o p e n society," 52, 5 4 55, 66, 7 4 - 7 5 , 7 9 - 8 1 reverse discrimination, 77 separate but equal doctrine, 3 3 - 3 4 , 38, 7 5 - 7 6 , 99 slavery, 3 0 - 3 1 , 9 4 Voting Rights Act of 1965, 135. See also constitutional rights; Equal Rights A m e n d m e n t ; equality civil service. See President; public policy Civil W a r , effects of on Constitution, 3 1 - 3 2 on federal-state relationship, 3 1 - 3 2 on racial equality, 76 Civil W a r amendments. See Amendm e n t s : 73th, 14th, and 15th Clark, Joseph S., on third century issues, 279 Cohen, M o r r i s , 72 Coke, Sir Edward, on common law, 4 6 - 4 7 , 65, 74 Commission to Study the Organization of the Government for Foreign Affairs, report of, 233, 235, 237 Congress civil liberty, effect on, of, 88 committee system of, 140, 190, 218, 258-59 concurrent resolution, use of, by (see Congress, and legislative veto) and declaration of war power, 246, 261, 2 6 8 - 6 9 and disclosure requirements, 230 foreign affairs powers of, 236, 2 5 8 60 inertia of, 1 3 3 - 3 5 , 2 7 7 - 7 8 legislative delegation of authority by, 181, 194, 2 1 7 - 2 2 0

310

and legislative veto, 138, 219, 2 4 1 43, 2 8 0 - 8 1 oversight of regulatory agencies by, 137-140 party alignments in, 189 party reorganization in, 1 7 4 - 7 5 public view o f , 132 reform (procedural and structural) of, 1 3 5 - 3 7 relationship of to executive, 31, 188, 1 9 2 - 9 3 , 203, 2 1 7 - 2 0 , 268, 271, 273, 2 7 7 - 7 9 to interest groups, 135 to State Department, 2 4 3 - 4 4 reorganization of, 2 0 4 - 6 role of in in in in

budget process, 190, 2 7 2 - 7 3 constituent services, 1 8 8 - 8 9 constitutional development, 100 control of expenditure levels,

247-48, 272-73 in deployment of military forces, 269-71 in foreign affairs, 2 4 1 - 4 2 , 2 5 0 - 5 1 , 2 5 9 - 6 0 , 268, 2 7 1 - 7 3 , 2 7 5 - 7 6 , 279 in handling of international agreements, 2 4 1 - 4 2 , 2 5 3 - 5 4 , 276-77, 279-82 in investigations, 188 in legislation, 1 8 7 - 8 8 in Mayaguez incident, 272 in representation, 191, 2 5 0 - 5 1 , 259-60 in shaping public policy, 1 8 7 191, 1 9 3 - 9 4 , 199, 203 in trade negotiations, 2 4 2 - 4 3 , 268, 276 in V i e t n a m W a r , 3 4 - 3 5 , 40 staffing of, 1 9 0 - 9 1 , 259 and standing to sue, 262, 274 subconstitutional changes in powers of, 2 6 9 - 7 3 and sunset laws, 1 3 8 - 3 9 and sunshine laws, 157 terms of office in, 229 treaty approval by, 236, 2 3 9 - 4 0 , 254-57, 279-80 and W a r Powers Resolution, 36, 246, 258, 2 6 9 - 7 1 Constitution allocation of foreign policy powers in, 2 3 6 - 4 5 amendment of, 19, 97, 262 and Declaration of Independence, 26, 71, 9 3 - 9 4 drafting of, 6 8 - 6 9 framers of, 6 7 - 6 9 , 9 3 - 9 6 lack of guarantees in, 9 3 - 9 5

Index

judicial interpretation of, 97-99 See also Amendments to the U.S. Constitution; Bill of Rights; Constitutional Convention of 1787 Constitutional Convention of 1787 character of, 6 7 - 6 9 , 9 3 - 9 6 and determination of federal system, 1 2 3 - 2 4 , 220 and foreign relations powers, 2 3 6 37, 245, 281 objectives of, 68 constitutional rights and criminal procedures, 8 1 - 8 2 as distinguished from Revolutionary values, 9 4 - 9 5 and free expression, 8 2 - 8 4 and growth of egalitarianism, 66, 72, 7 4 - 7 9 , 81 nationalization of, 8 6 - 9 0 and religious freedom, 8 4 - 8 6 . See also natural rights Continental Congress (Second), 6 7 - 6 8 Corwin, Edward S., on 1st Amendment, 69 Cox, Archibald, on President's military power, 258 Crevecoeur on freedom in America, 5 5 - 5 6 Letters from an American Farmer, 55 Cutler, Lloyd, on regulatory agencies, 139 Declaration of Independence and Bill of Rights, 71 and Constitution, 26, 71 Jefferson's revolutionary values in, 66 notion of equality in, 66 as statement of British government injustices, 50 as statement of governmental goals, 50, 52 Dewey, John, on a higher law, 72 Diamond, Martin, 49 Dickens, Charles, on American egalitarianism, 75 Douglas, William O., 77, 85, 139 economic security, as a new value, 5 7 58. See also Revolutionary values Eisenhower, Dwight D., 237, 246 F.lazar, Daniel )., on federal system, 122 electoral college abolition of, 1 9 6 - 9 7 as conceived by Constitutional Convention, 6 8 - 6 9 reform of, 205

Index

relationship of, to two-party system, 176-77 Equal Protection clause. See Amendments to the U.S. Constitution; 14th Equal Rights Amendment, 1 9 - 2 0 , 7 7 - 7 9 equality absence of, in Bill of Rights, 94 and affirmative action quotas, 7 6 - 7 7 , 104-5 changes in American concepts of, 74-78 conflict of, with liberty, 1 0 3 - 4 court interpretation of, 7 5 - 7 7 as expressed in Declaration of Independence, 5 1 - 5 2 , 94, 1 0 1 - 2 of opportunity, 66, 75, 77, 102 of position, 7 6 - 7 7 , 1 0 2 - 3 and reverse discrimination, 77 as a Revolutionary value, 52, 94, 101 for women, 7 7 - 7 9 . See also Revolutionary values executive agreements. See President executive branch. See President executive-legislative relationship, 31, 188, 1 9 2 - 9 3 , 203, 2 1 7 - 2 0 , 268, 271, 277-79 and constitutional revision of foreign policy structures, 2 5 5 - 6 2 , 2 6 8 - 6 9 in foreign policy-making, 3 4 - 3 5 , 236-37, 256-59, 279-81 and legislative delegation of power to executive, 181, 194, 2 1 7 - 2 0 and legislative oversight of executive action ( s e e regulatory agencies) and legislative-executive council, 192 and military and nuclear policymaking, 3 4 - 3 5 , 269, 271, 274 and presidential-parliamentary government, 197 and sharing in government planning, 226-27 subconstitutional changes in, 2 6 9 - 7 3 tension in, 31, 226, 2 7 7 - 7 9 during Vietnam W a r , 3 4 - 3 5 and W a r Powers Resolution, 36, 246, 258, 271. See also C o n g r e s s ; President executive privilege. See President Talk, Richard on consensus in foreign policy, 277-78 on U.S. adherence to international agreements, 253 on W a r Powers Resolution, 271 federal-state relationship effect of Civil W a r on, 31 and federal supremacy, 3 0 - 3 2

311

federal-state relationship—continued in foreign affairs, subconstitutional changes in, 262. See also federalism federalism (the federal system), 1 2 2 26, 1 5 0 - 5 9 , 234 and allocation of governmental power, 204-5, 220-24 and centralization of power, 123-26, 151-54, 168-69 and citizen participation, 156-58 constitutional reform of, 200-201, 205-6 empirical studies of, 1 5 8 - 5 9 and erosion of general-purpose government, 2 2 0 - 2 1 and grants-in-aid, 195-96, 220 and interstate compacts, 224 and "new federalism," 153-54 and population density problems, 223-24 and public policy-making, 1 8 2 - 8 3 and regional level control, 222-24 and revenue sharing, 1 5 3 - 5 4 , 227 and state and local governments, 48, 158-59, 182-83, 195, 200-201, 2 2 1 22, 2 2 4 - 2 6 and the states in foreign affairs, 250, 256, 262 and supremacy clause, 124 Federalist, The on factions, 49 on federalism, 48 on fundamental law, 47 on the union of the states, 53, 54 foreign affairs bipartisanship in, 2 3 7 - 3 8 and Connally Reservation, 282 as conducted in Great Britain, 238, 255 and congressional foreign relations powers, 2 4 3 - 4 4 , 259 and constitutional revision, 2 5 5 - 6 2 , 268-69 effect of military policy on, 2 4 6 - 4 7 and internal effect of international agreements, 262, 2 8 0 - 8 2 and international agreements powers, 253-55, 2 7 9 - 8 2 and Law of the Sea Conference, 254 major constitutional issues of, 2 3 8 45 and Panama Canal treaty, 255, 280 and the people, 250-53 and "political questions," 36, 2 5 6 - 5 7 , 261, 274 role of media in, 2 5 2 - 5 3 and secrets of state, 2 4 1 - 4 2 and self-executing treaties, 255

312

separation of powers, effect of, on conduct of, 2 3 5 - 4 5 and states of the Union, 241, 250, 256 transnational (international) governmental participation in, 249-50, 283 and treaty enforcement agency, 2 4 9 50, 261 and treaty power, 236, 254-55, 2 6 1 62, 276-77, 2 7 9 - 8 0 foreign policy. See foreign affairs Frank, Jerome, Courts on Trial, 112-14 Frankfurter, Felix, 76, 117, 120, 145 Franklin, Benjamin, 25-41 passim on abolition of slavery, 30 on Constitution, 41 Freund, Paul, on protective legislation for women, 78 Friendly, Henry J., on congressional inertia, 134 Gallatin, Albert, on freedom of expression, 74 Gardner, Richard N., on U.S. commitments to foreign powers, 276 Giles, William, on judicial review, 29-30 Goodnow, Frank, 198-99 Gordon, Lincoln, 246 Grant, Ulysses S., presidency of, 32 Griffiths, Martha, on discrimination against women, 78 Hand, Learned on courts and public opinion, 1 2 1 - 2 2 on qualifications for judgeship, 145 Harlan, John Marshall, 120 Hayes, Rutherford B., election of, 32 Heilbroner prospect, 164 Henkin, Louis on arms control and disarmament, 248 on executive, 235 on international agreements, 280 on use of military force, 2 7 0 - 7 1 Henry, Patrick, on Constitution, 89 Holmes, Oliver Wendell, 73, 145 on Constitution, 2 6 - 2 7 on discrimination against women, 78 on judicial "legislation," 119 on past, 18, 26 Holmes, Oliver Wendell, Jr., 72 Holtzman, Elizabeth, 258 House of Representatives as conceived of in Constitutional Convention, 68 and enlargement of congressional districts, 136

Index

and enlargement of congressional districts, 136 representative function of, 2 5 1 - 5 2 lengthening terms of, 1 3 6 - 3 7 , 196, 262. See also Congress Hughes, Charles Evans, 145, on Supreme Court and public opinion, 122 Hume, David on human rights and liberty, 72 on politics as a science, 45 impeachment House Judiciary Committee draft article of, 35 of Samuel Chase, 2 9 - 3 0 of Andrew Johnson, 31. See also President individual rights. See constitutional rights; natural rights interest groups regulation of, 206 role of, in shaping public policy, 1 7 8 - 8 1 , 206, 228 international agreements. See Foreign affairs Jackson, Robert H., 145 on judicial review, 150 on Supreme Court and public opinion, 122 Jefferson, T h o m a s on Constitution and change, 19 on equality, 52, 75 on partisanship, 29 Revolutionary values of, 52, 66 Jessup, Philip on internal effect of international agreements, 282 on international law, 271 Johnson, Andrew administration of, 32 impeachment of, 31 Johnson, Lyndon, Vietnam W a r policies of, 3 4 - 3 5 judicial activism as compared to judicial restraint, 112, 119, 1 4 9 - 5 0 and judicial " l e g i s l a t i o n , " 112, 1 1 8 21 in nationalizing constitutional liberty, 86. See also judicial branch judicial branch (federal and state) and adequacy of federal tribunals, 114-22 and adversary process, 1 1 2 - 1 4 , 148 and appellate courts, 39 as conceived of in Constitutional Convention, 69

Index

and diversity jurisdiction, 1 1 4 - 1 5 , 148 and effect of federal trial courts on public policy, 171 and interpretation of constitutional values, 9 7 - 1 0 1 and judicial review, 29 public view of, 111, 1 4 3 - 4 4 and r e f o r m and reorganization of federal courts, 1 1 2 - 1 8 , 1 4 8 - 4 9 role of, in conduct of foreign relations, 2 7 3 - 7 6 , 283 and selection of judges federal, 1 1 6 - 1 8 , 1 4 4 - 4 7 state, 149 staffing of, 115 subconstitutional changes in, 261 and three-judge district courts, 114, 1 4 8 - 1 4 9 . See also Supreme Court judicial restraint. See judicial activism judicial review. See judicial branch Kellogg-Briand Pact of 1928, 270 K e n y o n , Cecelia M., 45 on equality and happiness as Revolutionary goals, 5 1 - 5 2 Laski, Harold, 1 3 - 1 4 legislative-executive relationship. See C o n g r e s s ; Executive-legislative relationship; President Levy, Leonard on 1st Amendment, 6 9 - 7 0 , 79 on W a r r e n Court, 87 Lewis, A n t h o n y , on judicial branch, 111, 119 Lincoln, A b r a h a m , 30 Lipson, Leon, on Connally Reservation, 282 Locke, John on definition of natural rights, 6 4 - 6 5 Second Treatise of Government, 51, 64, 199 Lowi, Theodore, 139, 187 M c D o u g a l , M y r e s S., on international agreements, 254, 2 8 1 - 8 2 Madison, James on factions, 49 on federal-state relationship, 48 on political parties, 29 on Supreme Court, 121 Mandeville, Bernard, 48 M a n n i n g , Bayless, on constitutional amendment, 269 M a r s h a l l , John, 145 on Constitution, 26 on federal supremacy, 30, 124 on "political questions," 29, 37

313

Martineau, Harriet, 75 Meiklejohn, Alexander, on 1st Amendment, 6 9 - 7 0 military subordination to civil power, 7 0 - 7 1 , 79 Miller, Samuel F., 31, 145 Morris, Gouverneur, on new Constitution, 1787, 13 Moynihan, Patrick, on democratic governments, 234 natural law. See natural rights natural rights American view of, as departure from British tradition, 4 6 - 4 7 and Bill of Rights, 6 9 - 7 1 as contrasted to magisterial tradition in American society, 6 7 - 6 9 in Declaration of Independence, 66-67 as defined by Locke, 51-52, 6 4 - 6 5 and egalitarianism, 67, 72, 75, 81 as emerging in Revolutionary era, 63 evolutionary changes in theories of, 71-74 and fundamental rights of Englishmen, 6 5 - 6 6 , 74 Jefferson's concepts of, 66 philosophers of, 52, 63-65, 72 Nelson, Samuel, on federal-state relationship, 3 1 - 3 2 New York City's fiscal crisis, 123, 15253, 155-56. See also federalism Nixon, Richard M. article of impeachment re, 35 U.S. v. Nixon, 37, 89, 121, 144, 242, 257-58 Otis, James, 71 Paine, Thomas on equality, 5 1 - 5 2 on formation of government, 4 5 - 4 6 on liberty, 51 Rights of Man, 51 on role of government, 47, 56 on union of the states, 53 Paterson, William, 8 6 - 8 7 Paul, Jerry, on Joan Little trial, 113 Pinckney, Charles, on purpose of government, 5 1 - 5 2 Plato, on nature of law and the state in Republic, 63-64 Pocock, J. G. A., 45 Pole, J. R., 45 political parties decline of, 173-77, 1 8 5 - 8 6 , 215-17 effect of on popular sovereignty, 173-77

314

on presidential primaries, 177, 1 8 5 - 8 6 , 197, 215-17 on separation of powers, 237-38 erosion of, as leadership factor, 202-3 function of, 215-17 and influence of two-party system on public policy shaping, 174-77, 202-3 and issue voting, 186 and President, 175, 2 0 3 - 4 realignment of, 174-77, 186, 189 and reorganization of party system, 192, 196-97, 205-6 as representative of diverse interests, 29, 49 Pollak, Louis, on congressional standing to sue, 274 popular sovereignty, 171-86 delegation of, to elected representatives, 251-52 and elections, 184-85 practice of, in policy shaping, 1 7 3 86 as a Revolutionary value, 4 7 - 4 8 theory of, in policy shaping, 171-73 Pound, Roscoe, 72 Powell, Thomas Reed, 122 President ability of, to shape policy, 191-93 and arms control and disarmament, 248 and Cabinet, 197 and commander-in-chief role, 35, 236, 246, 261, 269-70, 280-81 commitments of, to foreign powers, 276 congressional delegation of power to, 181, 194, 217-20 and control of bureaucracy, 142, 180, 192, 225-26 effect of White House staff on, 140-42 and executive agreements, 253, 2 7 9 81 and executive branch reorganization, 193-96, 205 and executive-legislative relationship, 31, 188, 192-93, 203, 217-20, 268, 271, 277-79 and executive privilege, 141, 239, 242, 261, 268-69, 272 foreign affairs powers of, 35, 2 3 5 36, 241, 276-78 and impoundment of funds, 247-48 and presidential primaries, 185-86, 197, 215-17 removal of, from office, (impeachment), 142-43, 219-20, 256

Index

role of, in selection of federal judges, 147 and secrets of state, 2 4 1 - 4 2 . See also C o n g r e s s ; executive-legislative relationship presidency foreign view of, 2 3 8 - 4 3 , 2 7 6 - 7 7 as an institution, 1 4 0 - 4 3 public view of, 1 3 1 - 3 2 subconstitutional changes affecting, 269-76 Price, Don K., on shaping of public policy, 170 Progressive era political traditions in, 199 and protective legislation for women, 78. See also civil rights public interest groups. See interest groups public policy changing character of, 1 7 0 - 7 1 civic and political participation in, 181-84 congressional role in, 2 1 8 - 2 0 effect on of bureaucracy, 169, 181, 194, 225-26 of changing federalism, 1 6 8 - 6 9 of changing international order, 165 of changing political values and ideologies, 1 6 6 - 6 7 of elections, 1 8 3 - 8 5 of environmental constraints, 164 of federal trial courts, 171 of governmental organization, 224-27 of interest groups, 1 7 8 - 8 1 , 206, 228 of modern mass communications, 1 6 7 - 6 8 , 185, 206, 216 of modern mixed economy, 1 6 4 - 6 5 of political leadership, 2 2 4 - 2 7 of postindustrial society, 1 6 5 - 6 6 of public officials, 1 8 6 - 2 0 1 , 2 2 4 27 of public service sector, 2 0 1 - 2 of regulatory agencies, 180-81, 194, 225 of secrecy in government, 1 9 4 - 9 5 of urban society, 168 as shaped by trends, 1 6 4 - 1 7 1 utilitarian approach to, 75. See also foreign affairs; interest groups; popular sovereignty Rayburn, Sam, 133-34 Regulatory agencies congressional oversight of, 1 3 7 - 4 0

Index

judicialization of, 181 and legislative veto, 138 in public policy-making, 1 8 0 - 8 1 , 194, 225 sunset laws, 1 3 8 - 3 9 Revolutionary values and compact theory of state, 6 5 - 6 6 domestic tranquility, 105 effect of social conditions on, 5 4 - 5 5 equality, 52, 5 4 - 5 8 , 6 6 - 6 7 , 7 5 - 7 7 , 1 0 1 - 5 , 172 evolution of, in public policy shaping, 1 6 6 - 6 7 , 171 fair treatment by government, 107 and free speech and expression, 69, 74, 106 justice, 50, 54, 58 liberty, 5 0 - 5 2 , 57, 63, 65, 7 1 - 7 2 , 8 6 90, 172 limited government, 63, 6 5 - 6 6 order, 50, 54 peace, 51, 54 popular sovereignty, 4 7 - 4 8 , 1 7 1 - 7 2 privacy, 8 7 - 8 8 , 1 0 6 - 7 property, 5 1 - 5 2 , 54, 6 5 - 6 6 , 96 public virtue, 48, 5 3 - 5 4 , 56 religious freedom, 69, 8 4 - 8 6 sources of, 9 3 - 9 5 unity, 5 3 - 5 4 . See also equality Rockefeller, Nelson A., on the federal principle, 123 Schumacher, E. F., Small is Beautiful, on the scale of government, 154 school desegregation case. See civil rights Senate as conceived of, in Constitutional Convention, 6 8 - 6 9 representative function of, 2 5 1 - 5 2 , 259-60 role of in selection of judges, 147 in treaty approval, 236, 2 5 4 - 5 5 , 2 6 1 - 6 2 , 2 7 6 - 7 7 , 2 7 9 - 8 0 . See also C o n g r e s s ; foreign affairs separate but equal doctrine. See civil rights separation of powers and allocation of foreign affairs authority, 233, 2 3 5 - 4 5 , 2 5 6 - 6 2 , 267-69 constitutional reform of, 1 9 6 - 2 0 1 , 204-5 and delegation of legislative power, 181, 194, 2 1 7 - 2 0 and constitutional revisions in foreign policy structure, 2 5 5 - 6 2 , 268-69

315

separation o f p o w e r s — c o n t i n u e d effect o f , on conduct of foreign relations, 2 3 5 - 4 5 , 2 7 6 - 7 7 a n d legislative oversight of executive action, 2 1 8 - 1 9 , 273 a n d m a j o r issues in foreign policy, 238-45 subconstitutional changes in, 2 6 9 - 7 5 as a Revolutionary value, 47. See also executive-legislative relationship S e w a r d , W i l l i a m H., and the slavery extension crisis o f 1850, 72 slavery attitudes toward, in Revolutionary era, 5 2 - 5 3 , 67 ban against, in Northwest Ordinance, 67 in D e c l a r a t i o n o f Independence, 94 Society for Political Inquiries, 45

United Nations C h a r t e r , 2 7 0 - 7 1 . also foreign affairs

See

V a n d e n b e r g , Arthur, on conduct of foreign policy, 35 Vice President, procedures for selection of, 230 Vietnam War and C a m b o d i a n b o m b i n g , 3 5 - 3 6 Johnson administration policies during, 3 4 - 3 5 legality legislation, 40, 258 Nixon administration policies during, 3 4 - 3 6 and T o n k i n Gulf Resolution, 3 4 - 3 5 Virginia Declaration o f Rights, 50 Virginia Plan (Resolutions), 18 Virginia Statute of Religious Liberty, 74

Spirit of the Laws, 199

state action doctrine, 101 state constitutions, 19 Sundquist, James, on party alignments, 177 S u p r e m e Court and resolution o f constitutional issues, 1 2 1 - 2 2 , 1 4 3 - 4 4 and executive privilege, 89, 121, 144, 242 and free expression, 8 2 - 8 4 and individual rights, 7 2 - 7 3 , 7 4 - 7 7 and nationalization of constitutional liberty, 8 6 - 9 0 on religion and education, 8 4 - 8 5 role of, 1 4 9 - 5 0 on seditious activity, 7 9 - 8 1 selection o f justices of, 1 4 4 - 4 7 on separation o f powers, 273 subconstitutional changes in, 261 treatment o f "political q u e s t i o n s " by, 36, 2 5 6 - 5 7 , 261, 274 See also judicial branch T a n e y , R o g e r , 30, 145 T h o m s o n , Charles, on private versus public interests, 56 Tocqueville, Alexis de, on equality in A m e r i c a , 55, 66, 75 T o n k i n G u l f Resolution. See V i e t n a m War treaty power. See C o n g r e s s ; foreign affairs; President Tugwell, Rexford G . on federal system, 115, 122, 152 on separation o f powers, 199 on states in the Union, 250 two-party system. See political parties

316

W a r on Poverty, 1 5 6 - 5 8 . See also citizen participation in government W a r Powers Resolution. See C o n g r e s s ; executive-legislative relationship W a r r e n Court, 145 on concept of equality, 74 on constitutional rights, 100 on 14th Amendment, 8 7 - 8 8 on nature of right and justice, 7 3 - 7 4 on " o p e n society," 8 0 - 8 1 on reconciling 1st Amendment rights, 8 3 - 8 4 on Smith and M c C a r r a n Acts, 8 0 - 8 1 . See also Supreme Court W a s h i n g t o n , George on formation o f government, 46 on new Constitution, 1787, 13 on public interest, 53 W e c h s l e r , Herbert, on neutral principles of constitutional law, 39, 118 W i l d a v s k y , Aaron, on presidential popularity, 1 3 1 - 3 2 Williams, Samuel on early American spirit, 54 on equality, 52 on reason in government, 45 on role o f government, 47, 5 5 - 5 6 on societal values, 54 W i l s o n , James, on Bill of Rights, 69, 71 Wilson, Woodrow on Constitution, 18 on government and politics, 198 on presidency, 2 3 7 - 3 8 W o l f g a n g , M y r a , on Equal Rights Amendment, 7 8 - 7 9 W o o d , Gordon S., 45

Index

CASE INDEX

Adamson v. California, (1947), 87

332 U.S. 46

Baker v. Carr, 369 U.S. 186 (1962), 81, 257 Board of Education v. Allen, 392 U.S. 236 (1968), 85 Bradley v. School Board of the City of Richmond, 461 U.S. 696 (1974), 84 Brown v. Board of Education, 347 U.S. 483 (1954); 349 U.S. 294 (1955), 37-38, 76, 143, 146 Brown v. Mississippi, 297 U.S. 278 (1936), 99-100 Buckley v. Valeo, 424 U.S. 1 (1976), 246, 256-58, 262, 273 Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), 88 Chicago and Southern Air Lines v. Waterman Steamship Corp., 333 U.S. 103 (1948), 150 Civil Rights Cases, 109 U.S. 3 (1883), 33 Coolidge v. New Hampshire, 403 U.S. 443 (1971), 74 Davis v. Parker, 413 U.S. 906 (1973), 84 Dennis v. U.S., 341 U.S. 494 (1951), 79-80 Dred Scott v. Sandford, 19 Howard 393 (1857), 30 Engel v. Vitale, 370 U.S. 421 (1962), 85 Escobedo v. Illinois, 378 U.S. 478 (1964), 74, 82 Everson v. Board of Education, 330 U.S. 1 (1947), 84 Gibbons v Ogden, 9 Wheat. 1 (1824), 30 Gideon v. Wainwright, 372 U.S. 335 (1963), 74, 82 Ginzburg v. U.S., 383 U.S. 463 (1966), 84 Gomillion v. Lightfoot, 364 U.S. 339 (1960), 81 Gray v. Sanders, 372 U.S. 368 (1963), 81 Green v. County Board of New Kent County, 391 U.S. 430 (1968), 76 Griswold v. Connecticut, 381 U.S. 479 (1965), 39, 73, 88 Harris v. New York, (1971), 82 Kastigar 82

401 U.S. 222

v. U.S., 406 U.S. 441 (1972),

Keyes v. School District, No. 1, Denver, Col., 413 U.S. 189 (1973), 76 Lochner v. New York, 198 U.S. 45 (1905), 73 Lucas v. 44th General Assembly of Colorado, 377 U.S. 713 (1964), 81 Luther v. Borden, 7 Howard 1 (1849), 256-57 Mapp v. Ohio, 367 U.S. 643 (1961), 82, 240 Marbury v. Madison, 1 Cranch 137 (1803), 29, 37 McCollum v. Board of Education, 333 U.S. 203 (1948), 85 McCullough v. Maryland, 4 Wheat. 316 (1819), 30 Miller v. California, 413 U.S. 15 (1973), 84 Milligan, Ex Parte, 4 Wall. 2 (1866), 30-31, 36-37 Miranda v. Arizona, 384 U.S. 436 (1966), 74, 82, 120 Missouri v. Holland, 252 U.S. 416 (1920), 26-27, 239, 2 4 9 - 5 0 Oregon 82

v. Hass, 420 U.S. 714 (1975),

Plessy v. Ferguson, 163 U.S. 537 (1896), 30-34, 38 Powell v. Alabama, 287 U.S. 45 (1932), 74 Powell v. McCormack, 395 U.S. 486 (1967), 256-57 Reid v. Covert, 354 U.S. 1 (1957), 239 Reynolds v. Sims, 377 U.S. 533 (1964), 81, 144 Rizzo v. Goode, 423 U.S. 362 (1976), 89 Roth v. U.S., 354 U.S. 476 (1957), 83-84 Slaughter-House Cases, 16 Wall. 36 (1873), 3 1 - 3 3 Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971), 76 Sweezy v. New Hampshire, 354 U.S. 234 (1957), 81 Tilton v. Richardson, (1971), 85

403 U.S. 672

U.S. v. California, 332 U.S. 19 (1947), 256 U.S. v. Curtiss-Wright Export Corp. 299 U.S. 304 (1936), 256

U.S. v. Jordan, No. 29, 592 ACM 21707, 22 Aug. 1975, 240 U.S. v. Nixon, 418 U.S. 683 (1974), 37, 89, 121, 144, 242, 2 5 7 - 5 8

Yates v. U.S., 354 U.S. 298 (1957), 8 0 81 Youngstown Sheet S Tube Co. v. Sawyer, 343 U.S. 579 (1952), 239-40

Wright v. Council of Emporia, 407 U.S. 451 (1972), 76 Watkins v. U.S., 354 U.S. 178 (1957), 81

Zorach v. Clauson, 343 U.S. 306 (1952), 85 Zschernig v. Miller, 389 U.S. 429 (1968), 250

318

Index

fZ^ ^STHff®

X

The American Academy of Political and Social Science

THE REVOLUTION, THE CONSTITUTION, AND AMERICA'S THIRD CENTURY

The Bicentennial Conference on the United States Constitution

Volume II- Conference Discussions A social and philosophical examination of the Constitution, its two centuries of influence on American life, and its implications for future generations

Published for the American Academy of Political and Social Science by the University of Pennsylvania Press Philadelphia

The Bicentennial Conference on the United States Constitution and this report on its proceedings were made possible by a grant from the Sun Company as a public service

Copyright © 1980 by the American Academy of Political and Social Science All rights reserved Printed in the United States of America

CONTENTS

Biographical Information on Conferees

Volume II

DISCUSSION Committee I—Maintenance of Revolutionary Values

7

27

Committee II—Effectiveness of Governmental Operations

127

Committee III—Shaping of Public Policy

231

Committee IV—The United States and the World

337

Notes to Discussion Material

441

Reflections on the Conference Herbert Wechsler

451

Index

461

Herbert Wechsler

W i l l i a m H. Mastie

T.ouis H

M a r v i n E. W o l f g a n g

Poflak

R i c h a r d D . Lambert

BIOGRAPHICAL INFORMATION ON CONFEREES Herbert Wechsler (Conference Chairman) Director of the American Law Institute, and Harlan Fiske Stone Professor of Law, Emeritus, at Columbia University. A former special assistant to the attorney general of the United States, 1940-44, and assistant attorney general in charge of the war division, 1944-46, he served for ten years as chief reporter in the preparation of the Model Penal Code approved by the American Law Institute in 1962, and as principal technical advisor to the American judges in the Nuremberg trials. By appointment of the Supreme Court, he served as a member of the committee that drafted the Federal Rules of Criminal Procedure. He was a member of the President's Commission on Law Enforcement and Administration of Justice, which reported in 1967, and a member of the Commission on Revision of the Federal Court Appellate System of the United States, which reported to the President, the Chief Justice and the Congress in 1975.

Louis H. Pollak (Conference Keynoter) U.S. District Judge, Eastern District of Pennsylvania. Until recently he was dean and Albert M. Greenfield University Professor of Human Relations and Law at the University of Pennsylvania Law School. He is a former vice president of the NAACP Legal Defense and Educational Fund, Inc. William H. Hastie (Speaker, Dedication Ceremony) Senior Circuit Judge, U.S. Court of Appeals for the Third Circuit. A former governor of the Virgin Islands, dean of the Howard University Law School and assistant solicitor, U.S. Department of the Interior, he was a fellow of the American Academy of Arts and Sciences and a member of the American Philosophical Society. Judge Hastie died in 1976.

Marvin E. Wolfgang (President of the Academy) President of the American Academy of Political and Social Science, he is Professor and former Chairman of the Department of Sociology and now Director of the Center for Studies on Criminology and Criminal Law at the University of Pennsylvania. A former president of the American Society of Criminology, and a consultant to the President's Commission on Law Enforcement and Administration of Justice, he is a fellow of the American Philosophical Society. Richard D. Lambert (Editor, The Annals) Editor of the The Annals and Professor of Sociology at the University of Pennsylvania. He is a former president of the American Academy of Political and Social Science and the Association for Asian Studies and vice president of the International Study Association. He was until recently dean of instruction and academic planning of the Faculty of Arts and Sciences at the University of Pennsylvania.

Patricia Roberts Harris

Jack P. Greene

Sam Brown

Christopher F. Edley

George C Edwards, jr.

Buell G. Gallagher

Jack Grc-enberg

Charles S. H y n e m a n

Albert E. Jenner, Jr.

COMMITTEE I

Patricia Roberts Harris (Chairperson)

Secretary o f Health, Education and Welfare. O n leave from her Washington, D.C. law firm, Fried, Frank, Harris, Shriver & Kampelman, Mrs. Harris was first appointed Secretary of Housing and Urban Development by President Carter. She is a former dean and professor of law at Howard University and U.S. ambassador to Luxembourg.

Jack P. Greene (Keynoter)

Andrew W . Mellon Professor in the Humanities at the Johns Hopkins University and, during 1 9 7 5 - 7 6 , Harold Vyvyan Harmsworth Professor of American History at Oxford University. His extensive writings deal with chapters of American history.

Sam Brown

Former Treasurer o f the state of Colorado, the antiwar activist of the 1960s is now director of A C T I O N , the only federal volunteer agency.

Christopher F. Edley

Executive Director of the United Negro College Fund, the largest black private fund-raising effort in the United States. He is a former program officer in charge of government and law at the Ford Foundation.

George C. Edwards, Jr.

Circuit Judge, U.S. Court of Appeals for the Sixth Circuit. He is a former president of the Detroit Common Council, associate justice of the Michigan Supreme Court, and chairman of the U.S. Judicial Conference Committee on the Administration of the Criminal Law.

Buell G. Gallagher

Vice Chairman (Emeritus) of the National Board of Directors of the National Association for the Advancement of Colored People. He is also president emeritus of the City College of New York. A veteran educator and a civil rights worker, he has authored books dealing with the problems of American higher education.

Charles S. Hyneman

Distinguished Professor of Political Science, Emeritus, at Indiana University as a specialist in American constitutional law. A former president o f the American Political Science Association, he is currently engaged in an effort to collect and make accessible the best thought on republican government and the establishment o f state and national governments following separation from Great Britain.

Albert E. Jenner, Jr.

Senior Partner in the Chicago law firm Jenner & Block. He served as chief special counsel to the minority of the House of Representatives Committee on the Judiciary in the impeachment inquiry respecting President Richard M . Nixon. He also served as senior counsel to the Warren Commission, and as a member of the Presidential Commission on the Causes and Prevention of Violence in the United States. He is the author o f several legal publications in the fields of trial practice, evidence, pleading and procedure.

Jack Greenberg

Director-Counsel of the N A A C P Legal Defense and Educational Fund, Inc. An adjunct professor of law at Columbia University, he is a leading exponent of the strategy of lawmaking and the role of private attorneys-general in public interest law efforts.

Conferees

9

Sir Otto Kahn-Freund

Constance Baker Motley

Chdiles E Wiggins

f. Skelly Wright

J. R. Pals

John Minor Wisdom

Paul Bender

Whitney North Seymour, Sr.

Esmond Wright

Martha A. Field

COMMITTEE I

Sir Otto Kahn-Freund

During 1 9 7 5 - 7 6 , Arthur Goodhart Visiting Professor of Law at Cambridge University. He is a former professor of law at the University of London, professor o f comparative law at Oxford University, and president of the International Society for Labour Law and Social Legislation. A fellow of the British Academy, he has served as visiting professor in several American universities and is the author of books on labor law, comparative law, and conflict of laws.

Constance Baker Motley

U.S. District Judge, Southern District of New York. She is a former borough president of Manhattan, the first woman to hold that elective office, and New York state senator.

J. R. Pole

Rhodes Professor of American History and Institutions at O x ford University and Fellow of St. Catherine's College. Until recently he was a reader in American history and government at Cambridge University and vice-master of Churchill College. Prof. Pole is a specialist in American history and the author of numerous publications in the field.

Conferees

Whitney North Seymour, Sr.

Senior Partner in Simpson Thacher & Bartlett, New York City. He is a former president of the American Bar Association, the Association of the Bar of the City of New York, the American College of Trial Lawyers, the Legal Aid Society, the American Bar Foundation, the Institute of Judicial Administration, and the Joint Conference on Legal Education in the State of New York.

Charles E. Wiggins

Mr. Wiggins recently retired from the House o f Representatives, where, as Representative from California's 39th congressional district for six terms, he served on the Judiciary Committee and the House Administration Committee. He was considered one of the most articulate conservative spokesmen in Congress.

John Minor Wisdom

Circuit Judge, U.S. Court of Appeals for the Fifth Circuit. He serves also on the MultiDistrict Litigation Panel, of which he is chairman, and the Special Court, Railway Reorganization Acts of 1973 and 1976.

Esmond Wright

Professor of American History at the University of London and Director of the Institute of United States Studies. He is a specialist in American history and the author of numerous publications on the American Revolution.

J. Skelly Wright

Senior Judge, U.S. Court of Appeals for the District of Columbia. He is a former U.S. District Judge, Eastern District of Louisiana, and the author of more than 900 published opinions.

Paul Bender (Rapporteur)

Professor of Law at the University of Pennsylvania, he previously served as law clerk to Supreme Court Justice Felix Frankfurter and to U.S. Court of Appeals Judge Learned Hand. He is co-author of a volume on political and civil rights in the United States.

Martha A. Field (Rapporteur)

Professor of Law at the University of Pennsylvania, she was law clerk to Supreme Court Justice Abe Fortas and to U.S. Court of Appeals Judge John Minor Wisdom. She has authored several articles on constitutional cases.

11

Henry J. Abraham

Jose A. Cabrane*

Daniel J. B a r a r

John D. Feerick

Henry j . Iritndly

Charles V. Hamilton

COMMITTEE II

Nelson W. Polsby (Co-chairman)

José A. Cabranes

James L Oakes (Co-chairman)

Tom C. d a r k

Professor of Political Science at the University of California, Berkeley, and managing editor ( 1 9 7 1 - 7 7 ) , of the American Political Science Review. A scholar of the presidency and the Congress as institutions, Dr. Polsby contributes extensively to journals dealing with political science, sociology and law.

Circuit Judge, U.S. Court of Appeals for the Second Circuit. A former attorney general of Vermont, Judge O a k e s served as U.S. District Judge, Vermont, as a two-term Vermont state senator, and as president of the Vermont Bar Association.

Henry ). Abraham (Keynoter)

James Hart Professor of Government and Foreign Affairs at the University of Virginia. He served as a consultant to the U.S. Senate Judiciary Committee's subcommittee on the separation of powers, and has written extensively on constitutional law, civil rights and liberties, the comparative judicial process, American government, comparative government and public law.

Legal Adviser and Director of Government Relations at Yale University. He is a former special counsel to the governor of the Commonwealth of Puerto Rico, and administrator of the Office of the Commonwealth of Puerto Rico. A specialist in international law, Mr. Cabranes has written extensively on interAmerican relations.

Retired Associate Justice of the Supreme Court of the United States and former U.S. Attorney General. He was a former president of the Federal Bar Association, chairman of the board of directors of the National College of State Trial Judges, and a fellow and former president of the Institute of Judicial Administration. Justice Clark died in 1977.

Daniel J. Elazar

Director of the Center for the Study of Federalism and Professor of Political Science at Bar Ilan and Temple Universities. He is a recognized authority in the fields of federalism, state and local politics, American government and politics, and constitutional law, and has written extensively on these subjects.

Heinz Eulau

William Bennett Munro Professor of Political Science at Stanford University. He is a former president of the American Political Science Association and senior fellow at the Hoover Institution on W a r , Revolution and Peace, and the author o f numerous books on various aspects o f political behavior.

Conferees

John D. Feerick

Partner in the New York law firm of Skadden, Arps, Slate, Meagher & Flom, he is chairman of the federal legislation committee of the Association of the Bar of the City of New York. He is a constitutional scholar who has served as head of several American Bar Association committees dealing with election reform, presidential succession and the impeachment process, and has written three books about the Constitution and the vice presidency.

Henry J. Friendly

Circuit Judge, U.S. Court of Appeals for the Second Circuit. He is a member o f the advisory committee of the U.S. Judicial Conference on Federal Appellate Rules, and lectures widely on legal and constitutional issues.

Charles V. Hamilton

Wallace S. Sayre Professor of Government at Columbia University, he is also president of the Metropolitan Applied Research Center, Inc. He is a former vice president of the American Political Science Association, and is a trustee of the Twentieth Century Fund and a director of the N A A C P Legal Defense and Educational Fund, Inc. He has written extensively on the role of black voters in American politics.

13

Ii. Gordon Hoxie

Jantes R, Mann

Robert B. McKay

Sir Leon Radzinowicz

Marcus G. Raskin

George E. Reedy

Chc-sterfield Smith

Joan S. Wallace

James O. Freedman

Frank Goodman

COMMITTEE II

R. Gordon Hoxie

President of the Center for the Study of the Presidency. He is a historian and political scientist, a former president of C. W . Post College and chancellor of Long Island University, and has written books and articles on political science with emphasis on the United States presidency.

James R. Mann

Formerly a member of the House of Representatives from South Carolina's Fourth District, Mr. Mann was a member of the House Judiciary Committee and its subcommittees on crime and criminal justice, and chairman of the subcommittee on the judiciary of the House District of Columbia Committee.

Robert B. McKay

Director of the Program on Justice, Society and the Individual at the Aspen Institute for Humanistic Studies. A former dean of New York University School of Law, he also served as president of the Legal Aid Society of New York City, chairman of the New York State Special Committee on Attica, and chairman of the Board of Correction, New York City.

Conferees

Sir Leon Radzinowicz

Fellow of Trinity College at Cambridge University. An internationally renowned criminologist, Sir Leon has headed the criminology department at Cambridge since 1959, served in various universities in the United States as well as in England, and written several books on criminology. He is a former director of the Cambridge Institute of Criminology.

Marcus G. Raskin

Distinguished Fellow, cofounder and former co-director of the Institute for Policy Studies/Transnational, an independent center in Washington, D.C. devoted to research on public policy questions. A former member of the special staff of the National Security Council during the Kennedy administration, he is a frequent lecturer at major universities, and his articles on foreign policy, political philosophy and education have appeared in major journals.

George E. Reedy

Nieman Professor and former Dean of the College of Journalism at Marquette University. A former special assistant and press secretary to President Lyndon Johnson, Mr. Reedy recently returned from five months in the Far East, where he spoke on American politics, government and press under the Department of State's cultural exchange program.

Chesterfield Smith

Partner in the law firm of Holland & Knight in Lakeland, Florida. He is a former president of the American and Florida Bar Associations, and chairman of the Florida Constitution Revision Commission.

Joan S. Wallace

Director of Western Michigan University School of Social Work, she is a former deputy executive director, program operations of the National Urban League, Inc. Dr. Wallace is active in the Council on Social Work Education, the American Sociological Association and the American Psychological Association.

James O. Freedman

(Rapporteur) Dean of the University of Pennsylvania Law School and recent professor of law and associate provost at the University. Formerly with the New York law firm of Paul, Weiss, Rifkind, Wharton & Garrison, he served as law clerk to then U.S. Court of Appeals Judge Thurgood Marshall.

Frank Goodman

(Rapporteur) Professor of Law at the University of Pennsylvania. He served as research director of the U.S. Administrative Conference, and is a former professor of law at the University of California, Berkeley.

15

Eimer 8, Staats

Charles E, Gilbert

John B Anderson

Lee Benson

Fletcher L Hyrou

Ruih C. Ckiseis

David Cohen

Medley Donovan

David P. Eastbiiü!

Edwin L. Goldwasser

Erwin N. Griswold

Evron M. Kirkpatrick

COMMITTEE III Elmer B. Staats

(Chairman)

Comptroller General of the United States since 1966. A former deputy director, U.S. Bureau of the Budget, he is active in numerous associations in the areas of public accounting and political science, and writes extensively on both subjects. Mr. Staats is a director of the American Academy of Political and Social Science. Charles E. Gilbert

(Keynoter)

Richter Professor of Political Science at Swarthmore College. He is a former senior fellow of the Brookings Institution and fellow of the Rockefeller Foundation. His publications deal with government planning and administration. John B. Anderson Member of the House of Representatives from the 16th District of Illinois. A ten-term legislator, he was chairman of the House Republican Conference and the ranking Republican member on the former Joint Committee on Atomic Energy. His major efforts have been political campaign-financing practice reform and congressional budget reforms. Lee Benson Professor of Historical Social Sciences at the University of Pennsylvania. He is a former president of the Social Science Historical Association, and has done research and published in American political behavior, theories of social conflicts and historical public opinion studies.

Conferees

Fletcher I . Byrom Chairman of the Board, Koppers Company, Inc. He was chairman of the President's Export Council, chairman of the Conference Board and vice-chairman of the Committee for Economic Development. Ruth C. Clusen Assistant Secretary for Environment in the U.S. Department of Energy. She was president of the League of Women Voters of the United States. A member of the league's national board since 1966 and active in civil rights and women's issues, she was a delegate to the International Women's Year Conference in 1975, and has worked with the Department of State on global environmental problems. David Cohen President of Common Cause. As a public interest lobbyist, he has participated in numerous issue battles such as civil rights, consumer affairs, urban affairs, anti-poverty and end-the-war legislation. He has published many articles on the need to revitalize the operations of Congress. Hedley Donovan Senior White House Adviser. He was editor-in-chief of Time Inc., from 1964 until his retirement in June 1979, having joined Fortune's staff in 1945. He is or has been a trustee of New York University, Mount Holyoke College, the Ford Foundation, the Carnegie Endowment for International Peace, a director of the Council on Foreign Relations and a fellow of the American Academy of Arts and Sciences.

David P. Eastburn President of the Federal Reserve Bank of Philadelphia, with which he has been associated for thirty-five years. He lectures frequently on economic topics and has authored numerous articles for business and financial publications. Edwin L. Goldwasser Vice Chancellor for Research and Dean of the Graduate School at the University of Illinois. He was recently deputy director of the Fermi National Accelerator Laboratory. A researcher into cosmic rays and the interaction of elementary particles, and a former member of the general advisory committee of the U.S. Atomic Energy Commission, he is active in efforts to strengthen high energy physics research facilities in the United States. Erwin N. Griswold Partner in Jones, Day, Reavis & Pogue, in Washington, D.C. He is a former Solicitor General of the United States, and longtime dean of the Harvard Law School. He is a past president of the American Bar Foundation and the Association of American Law Schools. Evron M. Kirkpatrick Executive Director of the American Political Science Association. Formerly chairman of the board of trustees of Operations and Policy Research, Inc., he is active in many educational organizations and the author of several books on American government and politics.

17

Susan Paris Lewis

Carl McCow.111

Robert J Pranger

Austin Ranney

Henry S. Ruth, Jr.

Stephen I. Schlossberg

•'.ihn R. Stark

Clyde W

James L. Sundquist

Henry Teune

Gerald Trug

John Honnold

Summers

Alpha Trivette

COMMITTEE III Susan Paris Lewis Vice Chairman, Common Cause and chairman of its energy task force. She is a former member of the administrative committee of the National Women's Political Caucus. Carl McGowan Circuit Judge, U.S. Court of Appeals for the District of Columbia Circuit. He served as a member of the council of the Administrative Conference of the United States, and is a former chairman of the legal research committee of the American Bar Foundation. He is a member of the ALI-ABA Joint Committee on Continuing Legal Education and the council of the American Law Institute. Robert J. Pranger Director of Foreign and Defense Policy Studies at the American Enterprise Institute for Public Policy Research. Dr. Pranger is a former deputy assistant secretary for Near East and South Asian affairs and for policy plans and National Security Council affairs in the Office of International Security Affairs, Department of Defense. Austin Ranney Resident Scholar at the American Enterprise Institute for Public Policy Research. Former visiting professor of political science at the University of California, Berkeley, and professor of political science at the University of Wisconsin, he is a past president of the American Political Science Association, and has lectured widely in the United States and Europe on the American political party system and the governmental process.

Conferees

Henry S. Ruth, Jr. Partner in the Washington law firm of Shea & Gardner and former general counsel of the United Mine Workers of America, Health and Retirement Funds. A former director of criminal justice research at the Urban Institute, he was deputy special prosecutor and then special prosecutor of the Watergate Special Prosecution Force. Prior to that, he served as director of the Mayor's Criminal Justice Coordinating Council, New York City. Stephen I. Schlossberg Director of Governmental and Public Affairs, United Auto Workers. He is a former U A W general counsel, law school professor and official of the U.S. Mediation and Conciliation Service. John R. Stark Executive Director of the Joint Economic Committee of the U.S. Congress. He is a former faculty member at the George Washington University Law School and is presently on the faculty of its Graduate School of General Studies. He is a former official of the executive office of the President and the U.S. Labor Department. Clyde W. Summers Fordham Professor of Law at the University of Pennsylvania. He is a member of the International Society for Labour Law and Social Legislation, the National Academy of Arbitrators and the American Bar Association. His numerous articles concern labor law and collective bargaining, internal union problems, comparative labor law, problems of local governmental structure and collective bargaining of public employees.

James L. Sundquist Director of Governmental Studies at the Brookings Institution. A former Deputy Undersecretary of Agriculture, he has been both a White House and a U.S. Senate staff aide, and is the author of numerous books and articles on government and politics. Henry Teune Chairman of the Department of Political Science at the University of Pennsylvania. He has written extensively on various aspects of political science. Alpha Trivette Past national president of the Future Farmers of America. He is now with the Farm Bureau Federation of Virginia. Gerald Frug (Rapporteur) Associate Professor of Law at the University of Pennsylvania. He is a former health services administrator of New York City, and a special assistant to the chairman of the U.S. Equal Employment Opportunity Commission. John Honnold (Rapporteur) Schnader Professor of Law at the University of Pennsylvania. He is the author of a casebook on constitutional law and of books on commercial law. He served for five years as chief of the international trade law branch of the United Nations, and was the chief of court review of the U.S. Office of Price Administration.

19

Covey T. Oliver

Joseph S. Clark

John Sloan Dickey

John Diebold

Thomas Ehrlich

Richard A. Falk

Richard N. Gardner

Louis Henkin

Kenneth G. Holland

COMMITTEE IV Adrian S. Fisher

(Chairman) U.S. Ambassador to the Conference of the Committee on Disarmament in Geneva. Former Francis Cabell Brown Professor of International Law and Dean, Georgetown University Law Center. He is also a former deputy director of the U.S. Arms Control and Disarmament Agency and legal adviser of the Department of State. He was a technical adviser to the U.S. judges of the International Military Tribunal at Nuremberg and legal adviser to the U.S. delegation to the United Nations in Paris.

Covey T. Oliver

(Keynoter) Ferdinand Wakeman Hubbell Professor of International Law, Emeritus, at the University of Pennsylvania. He served as U.S. ambassador to Colombia, Assistant Secretary of State for InterAmerican affairs and U.S. coordinator for the Alliance for Progress, U.S. executive director of the World Bank Group in 1969, and as a member of the U.S. delegation to the Paris Peace Conference in 1946.

Joseph S. Clark

Former Mayor of Philadelphia and U.S. Senator from Pennsylvania ( 1 9 5 6 - 6 8 ) . He is a former president of the World Federalists, U.S.A., founder and first chairman of the Members of Congress for Peace Through Law, a trustee of the Fund for Peace, and a member of the American Academy of Arts and Sciences and the American Philosophical Society.

Conferees

John Sloan Dickey

Richard N. Gardner

President Emeritus of Dartmouth College. Mr. Dickey served in the Department of State as a consultant to the U.S. mission to the United Nations, and to Secretary of State Dean Acheson, and as a member of President Truman's Committee on Civil Rights. Considered an expert on Canadian-American relations, he has written extensively on this and other subjects.

U.S. Ambassador to Italy. Formerly Henry L. Moses Professor of Law and International Organization at Columbia University, he is a specialist in international law. He was a Deputy Assistant Secretary of State and delegate to the United Nations, senior adviser to U.S. ambassador to the United Nations Arthur J. Goldberg, and a U.S. delegate to several U.N. agencies.

John Diebold

Louis Henkin

Founder and Chairman of the Diebold Group, Inc. His firm is management counsel to such corporations as Xerox, Westinghouse, IBM, General Electric, DuPont and Kodak, as well as other major companies and over 100 municipal, state and foreign governments. He is a pioneer in the field of automation and a leader in the field of management and technology.

Thomas Ehrlich

President of the Legal Services Corporation. He is a former special assistant to the legal adviser of the Department of State, special assistant to the Under-Secretary of State, and law clerk to U.S. Court of Appeals Judge Learned Hand. Until 1976, when he assumed his current position, he was at Stanford University as Richard E. Lang Dean and Professor of Law.

Richard A. Falk

Albert G. Milbank Professor of International Law and Practice and Associate of the Center of International Studies at Princeton University. He is a senior fellow at the Institute for World Order, has authored or edited more than sixteen works on international law and world affairs, and has written numerous articles on American foreign policy.

Harlan Fiske Stone Professor of Constitutional Law at Columbia University. Until recently, he was Hamilton Fish Professor of International Law and Diplomacy and Professor of Law at Columbia University. He is president of the U.S. Institute of Human Rights and a member of Columbia's War and Peace Institute. Associated with the Department of State for more than fifteen years, he is the author of numerous books and articles on international and constitutional law, and a member of many foreign policy and international law societies.

Kenneth G. Holland

President Emeritus of the Institute of International Education. As an educational administrator, he served as director of the Department of State's office of educational exchange and on the Presidential Commission on Latin American Affairs. He was chairman of the board of Multinational Management Education. Mr. Holland died in 1977.

21

Seymour J. Ruhin

Noyes Leech

Stephen J. Schulhofer

COMMITTEE IV Philip C. Jessup A renowned international legal scholar, retired judge and former U.S. ambassador-at-large. Judge Jessup served as legal adviser to U.S. government officers at international conferences and embassies and as a U.S. delegate to the United Nations. He sat as judge on the International Court of Justice from 1961 to 1970, and was for thirty-five years on the faculty of Columbia University. George B. Kistiakowsky Abbott and James Lawrence Professor of Chemistry, Emeritus, at Harvard University. Known for his work in physical chemistry, he participated in the development of the atom bomb at Los Alamos during World War II. He was science adviser to President Eisenhower, served as adviser to several U.S. government agencies and has written widely on his research. Sol M. Linowitz Senior Partner in the New York law firm Coudert Brothers. A former chairman of the Xerox Corporation and U.S. ambassador to the Organization of American States, he was appointed by President Carter with rank of ambassador as co-U.S. negotiator of the Panama Canal Treaties.

Conferees

Leon Lipson Henry R. Luce Professor of Jurisprudence at Yale University. As an expert in international law and a former official of the Department of State, he is the writer and co-author of many books, articles and reviews. He is a former chairman of the American Bar Association's committee on Soviet law in the section on international and comparative law. Bayless Manning Partner in Paul, Weiss, Rifkind, Wharton & Garrison, New York City. Former president of the Council on Foreign Relations, Inc., and a former dean of the Stanford University Law School, he has served in the Department of State as a member of several special presidential commissions and panels, and as a consultant to other governmental agencies. He is the author of several books and articles on law and public affairs. Myres S. McDougal Sterling Professor of Law, Emeritus, at Yale University. He is a former president and honorary president of the American Society of International Law and a former president of the Association of American Law Schools. He is the author of many books and articles in the field of international law, and was a member of the U.S. delegation to the United Nations Conference on the Law of Treaties in Vienna.

Richard L. Park Professor of Political Science at the University of Michigan. A former dean of social sciences at the University of Pittsburgh, and president of the Association of Asian Studies, he was director of the University of Michigan's Center for Southern Asian Studies, and representative for the Asia Foundation in India. He is a consultant to the Department of State and has written and co-authored a number of publications on Asia, especially India. Seymour J. Rubin Professor of Law at American University and Executive Vice President of the American Society of International Law. He also serves as U.S. representative to the United Nations Commission on Transnational Corporations, and is a member of the Inter-American Juridical Committee. He has written several books and many articles dealing with foreign relations. Noyes Leech (Rapporteur) Professor of Law at the University of Pennsylvania. He is a member of the American Society of International Law and a coauthor of The International Legal System. Stephen J. Schulhofer (Rapporteur) Associate Professor of Law at the University of Pennsylvania. He served as law clerk to Supreme Court Justice Hugo L. Black, and has written several articles relating to criminal law.

23

i BÈI

ÊfWSi'

liMII

For three days in the spring of 1976, a group of distinguished statesmen, scholars, jurists and public representatives gathered in Philadelphia's historic Powel House, built in 1765, to examine the Constitution in terms of current issues and national goals. Dispersed into four working committees that met concurrently, they focused their discussions on the major conference themes that had been outlined in previously prepared papers. Those position papers, and the summary reports prepared by the rapporteurs for presentation to the full assembly on the fourth and final day of the convocation, appear in Volume I of The Bicentennial Conference on the United States Constitution. The transcribed proceedings of the working committees appear in the Conference Discussions on the following pages.

COMMITTEE I

MAINTENANCE OF REVOLUTIONARY VALUES

Chairperson: W e have two position papers. A s Professor Wechsler indicated this morning, the preparer of the first paper, Professor Alfred Kelly, died, and we were fortunate, even with this great loss, to have his colleague Dr. Miles finish the paper for us. A n additional background paper has been prepared by Professor Jack P. Greene. He has come to us from an assignment in England, and his keynote will combine an examination of both his issues paper and that by Professors Kelly and Miles.* Greene: I am not a constitutional lawyer or a constitutional historian. M y paper is not an issues paper, but a background paper, and as such, was intended to complement Professor Kelly's paper. When I first received this assignment, I was somewhat mystified by what was meant by the term "values." I was even more mystified when I read Professor Kelly's paper, because it seemed to confuse what I would call ordinary working principles of government with those larger objectives of political society which I would call values. M y paper attempts to define the central values of the founding fathers. These include those laid down as inalienable rights in the Declaration of Independence: life, liberty, and the pursuit of happiness. I defined " l i b e r t y " as both sanctity of the individual liberties in the traditional British sense and in a conception that was just coming to the fore at the end of the 18th century, as the right to participate in the political process, a right that was, of course, limited to a small segment of the population in 18th century America. More people had that right in British America than in any other political society at that time. But the criterion for who deserved liberty was not much different in America than it was elsewhere: liberty to participate in the political process was confined with few exceptions

* B o t h p a p e r s a r e printed in V o l u m e I.

to adult, white, independent males. Other values, especially justice and order, seem to be implicit in life and liberty and were subsequently given explicit formulation by the Constitution. The most interesting of the explicit values of the Declaration of Independence is the third in the trilogy, pursuit of happiness. Considerable scholarly debate has revolved around precisely what the founding fathers meant by that phrase, an obvious substitution for property in the traditional conception of rights. For a long time, especially during the period from the first decade of this century through the 1940s, historians generally believed that this was a deliberate substitution designed to show the commitment to human rights over property rights. The consensus now seems to be that the security of property—the sense of property has remained strong throughout American history—was meant to be subsumed under the term, "pursuit of happiness." But that term also included other things: the notion of peace, safety, a society in which there would be no dangers to property and liberty through perpetual tumult, chaos, or threat of external aggression, and, more importantly, the ability of all citizens to accumulate and to strive for property. Even more emphasis, I suspect, should be put upon the value of personal independence, which was extraordinarily important, at least to males of the Revolutionary generation, in defining who should be a citizen and, indeed, who was really a man. I have argued elsewhere that the most critical word in the phrase "all men are created equal" in the Declaration of Independence is really "men" and not "equal." Colonial America was certainly an unequal society from top to bottom. More important, a full man was conceived of in the 18th century Anglo-American world as essentially somebody having freedom from the control of another man, as a person who has a free will, which automatically excluded large segments of the population, not just most women, who were dependent on husbands, or children dependent on fathers, or servants dependent on masters, but even Catholics, who were thought to be dependent on Rome. The final two values which I singled out were: equality, which primarily meant an equality of rights for citizens—not for everyone— and equality of opportunity, which was also generally limited to citizens; and the value of public virtue, by which they essentially meant public spiritedness, the capacity to rise above self-interest in behalf of service to the common good. It might be interesting to develop a rank order among these various values. I have broken these values down into four groups. The highest priority would go to life, independence, and liberty—again, for citizens; just slightly below that, public virtue, justice, order, and peace; and considerably below that, the idea of equality. Of all of those values, I think equality was the one that was least important to the founders, and the one whose ramifications have been most thoroughly developed and expanded in the last 200 years. These political values and the constitutional form of government in which they were embedded were products of a particular kind of 28

Committee

I

society. The Constitution is a social document as much as anything else. It assumes certain characteristics about the nature of society and is an expression of those assumptions, assumptions that were peculiar to that time and place. It assumed a kind of society that was simple, open; one in which there was relative equality, at least among those who could be considered men; one in which an extraordinary amount of activity, industry and enterprise was unleashed by the openness, both in space and opportunities, that was available throughout American society; and finally a preoccupation with individual happiness, the pursuit of happiness which probably made it unique. I quote Charles Thomson, the first secretary of the Continental Congress, who once remarked that the trouble with Americans was that their main interest was in the pursuit of their own individual happiness, as implying that it was hard to get them to act in public spirited ways. Calvin Coolidge, according to most observers of the Revolutionary American scene, seems to have had it right: from the very beginning, the business of America was business, at least in the sense of business as the private pursuit of one's own life. The Constitution, the Declaration of Independence and the Bill of Rights are all expressions of that fundamental characteristic of American society. At the time it was written, the Constitution was not viewed as immutable law, and most Americans did not expect the Constitution to achieve the kind of sanctity that it subsequently attained. The expectations were that the Constitution, like all other documents or frameworks of government, would eventually have to be modified, perhaps in very fundamental ways, as society changed, and that social change would inevitably mean constitutional change. Given that expectation, I am not sure that Benjamin Franklin and his colleagues would not be extraordinarily surprised to see the extent to which there has not only been an adherence to the values of the Revolutionary era, but a rather considerable expansion of them. The discussion of this development through the expansion of constitutional rights is perhaps the most interesting part of Professor Kelly's paper. That discussion could provide a framework for our sessions. He describes the extraordinary flowering of the ideas of constitutional right and constitutional liberty, especially since World War II. He puts forth three interrelated ideas. First, the idea of enforceable equality. He traces changes in the idea of equality through the first stage in which Jefferson, he says, undoubtedly had in mind the old English idea of procedural justice for accused persons, an equality of rights, through a second stage, stretching from early in the 19th century u p to the 1840s, which was marked by the extension of equal political rights to all white males, to a third stage during which the meaning of equality was elaborated to include the idea of equality of opportunity. A fourth stage, beginning after the Civil War, was characterized by the extension of the guarantees of procedural justice, political rights, and equality of opportunity to a group of minorities, begin-

Maintenance of Revolutionary Values

29

ning first with the former slaves, and finally extending to women. Both groups, of course, had to wait a considerable time after they received formal legal equality until they received real equality. Finally, we come to the present situation, a fifth stage, marked by what Professor Kelly calls enforceable equality; that is, the idea that it is the duty of government not merely to remove the legal restrictions on an open constitutional society but to guarantee equality of position within the educational, social, and economic order through positive governmental intervention. With this notion of enforceable equality, Professor Kelly links two other ideas: the expansion of an open society and the nationalization of constitutional liberties. They are especially evident in recent court decisions expanding individual rights in the area of criminal trial procedures, birth control, abortion, obscenity, and separation of church and state. There is in Professor Kelly's paper the suggestion that we may have too much of a good thing; that while equality, liberty, and humanity are in fact desirable values, the courts may have gone too far. That is not a view I share. Both papers tend to end on a rather optimistic note: Professor Kelly praises the kinds of achievements which have been made, and suggests that the values of the founders are capable of further modifications, and may still serve the cause of constitutional liberty. To me it seems that some recent events, most particularly the outcome of the Watergate investigation, suggest that there is an adaptability to these early values and goals which are sufficiently adaptable to make them in modified form still appropriate, though perhaps with different priorities than the founding fathers themselves would have given them. That adaptability may make the values viable in the third century. The central question to be considered is whether society has changed in sufficient ways to call for altogether new values. Liberty and Equality Chairperson: You have heard Professor Greene outline those values he identifies as the preeminent Revolutionary values: life, liberty, justice, order, pursuit of happiness, independence, equality and public virtue. I would agree with this list. Are there any anachronistic values among those identified by Professor Greene, and are there any values omitted? Gallagher: In both the Declaration and the Constitution the notions of liberty and equality are present. But there is no mention of fraternity. Liberty and equality in themselves are mutually cannibalistic; they feed on each other. The greater the liberty, the less the equality; the greater the equality, the less the liberty. Without the reconciling fraternity, one has a continuous warfare between liberty and equality. This is most clearly seen in the controversy and the disposition of the Declaration of Independence itself.

30

Committee

I

There were at least two significant changes of substance that I would like to note. One was the deletion of Jefferson's noble condemnation of slavery. That was achieved in the fight between Adams and Rutledge in which the Rutledge forces won because they threatened not to join the Union unless their desire to have that phrase stricken was granted. Having deleted the reference to slavery, they then proceeded to add a number of references to Providence. This is not the first nor the last time that piety has been used to cover perfidy. It was not an accident that the Declaration did not define what it meant by "all men." It was deliberate. Not only the philosophical considerations which Professor Greene has rightly mentioned, but a practical concern for the future of a nation, in which all colonies had slaves, was before the men who were debating in Independence Hall. And that concern came down to the simple question of whether there would be any future nation at all if equality of all men were declared as fact. Professor Kelly's notion of the natural law invites a footnote or two. In Plato's Republic the debate rages about whether democracy is a good form of government. Through Socrates Plato cites the fact that one third of Athens' inhabitants were slaves, who could not be declared equal. The law said that a slave must be treated as an equal in the streets. You could not strike him or push him out of the way. But there was nothing of a humanitarian impulse there. It was prudential and economic. The economic welfare of the city depended on slave labor. Plato objected that this made unequals into equals. This was reinforced by Aristotle a dozen years after Plato's death when he said that the fact that a human being was a possession, a slave, made him by natural law unequal. Natural law which favored elitism was seen as a defense against manmade laws of equality. While it was natural law to which men of the 18th century appealed, its original premises were precisely the opposite of equality. J. S. Wright: It would be useful, at least initially, to get our views about the kind of people who drafted the Declaration of Independence and the Constitution. What strata of society were represented? Were the people really represented? W e know that blacks and women were not represented. The founders were drawn from the upper strata, continuing the English caste system slightly modified by the privations of the New World. Was it really just a few propertied whites who were responsible for this whole thing? It would be useful to determine which parts of the English law, English principles, these men sought to retain. Jenner: Or to reject. /. S. Wright: Which to reject and protect themselves against and which were just hopes for the future, or felicitous phrases. For example, I think that "pursuit of happiness" was a felicitous phrase that was just tossed in, and it has become now one of the more important phrases through the long process of constitutional interpretation.

Maintenance of Revolutionary Values

31

Wisdom: I wish Professor Kelly were here because he seemed obsessed with the idea of natural rights. The whole discussion of natural rights is confused and ambiguous. W e must not confuse the ideas of Plato, an elitist, with later ideas of natural rights. I'm not sure, for example, that it had any relevance to the Declaration of Independence or the Constitution. Not that I don't think these rights are essential, because I do. Skelly Wright's question is well taken. W h o were these people? Many of the small landholders were not represented. Moreover, merchants, women and others were not represented. Chairperson: Is the purpose of the question to identify what the words we have denoted as values really meant in terms of the 18th century experience? Are you saying we really cannot look at words and identify values except in terms of the experience of those who adopted the words? J. S. Wright: Right. And what they were trying to do. Jenner: You look to the words. You also look to the ambitions that existed at that time. You ought to look also to the state conventions and state legislatures, because this Constitution had to be approved by them. W h o were they? What were these politicians thinking of in presenting a document and then a Bill of Rights? Were they going to be able to obtain approval? The Constitution initially, aside from its Preamble, is just a basic document establishing a government. You have to look at the Bill of Rights which came along in 1791. You have to look at the amendments of the Constitution that occurred thereafter. Greene: Although the people who wrote the Declaration of Independence and the Constitution were clearly traditional political leaders from the upper classes, many of them were not from old families. James Wilson was a good example. But, as you suggest, they were consummate politicians who had lived in a political society and had had wide political experience. It never occurred to them that they were not responsible to an electorate. To suggest that they, any more than our own leaders, represented only people or groups or interests from the same socio-economic background is a fallacy. They represented those people who sent them there, a broad-based society at that time. /. S. Wright: You know that electorate was a propertied electorate. Greene: Yes, but one also understands that there was then a higher proportion of property owners in American society than at any other time. There were relatively few people in either 1760 or 1 7 9 0 among adult whites who did not own land at some point in their lives. As a matter of fact, there were not many free people of African descent who did not own property, and could not meet the property requirements for voting. They were excluded on other grounds. But anyone who was free and well in that society and had reasonable ambition and industry could in ten or fifteen years, if not sooner, acquire property.

32

Committee

I

But the point I want to make is that these men were being responsive. T h e y k n e w they had to take the documents back for ratification. T h e y k n e w the Declaration of Independence would not work unless it had broad support. And they were not totally free agents operating in a tightly controlled political system that depended somehow on coercion of the electorate. T h e electorate regularly voted people out, just as it does now. E. Wright: W e are in danger of confusing the Declaration of Independence, which is one thing, and the Constitution of 1787, which is another. Haven't we to distinguish between a series of pieties sometimes piously put? The twenty-six charges against George III may, perhaps, be better described as impieties rather than pieties. But they are a series of " t r u t h s , " which may or may not be politically true to the circumstances of the day, but have had permanent validity for generations and centuries afterwards. R u n n i n g through both papers is an emphasis on some measure of an aristocracy perhaps of birth, which is being discarded, certainly of talent, as Jefferson would have said, and perhaps of landed class. George M a s o n , the most radical of them all, may even have agreed. So there was some notion of leadership by an elite. Perhaps one question we have to ask is where do we find and how do we train an elite in a democratic society. A special feature of the Constitution is not merely the tripartite balance of power, but the unwillingness to trust the people, even those with property, with real political participation. You must go back to the people for consultation. Government is for them, of them, but rarely by them. And I would have thought that it was m a n y years before that risky venture was tried. The point that needs stressing is the importance of an elite. In the 18th century the test was still owning property. The right of suffrage went with owning land and with having a stake in society. Wisdom: Aren't you simply saying that what we did in the Constitution was to set up a representative government, not a democracy? E. Wright: Probably. Wisdom: But that's what the Constitution is. You certainly are correct in saying that we should distinguish between this document, which was meant to be a working basis for a government, and the Declaration of Independence, which was a manifesto to justify independence. Chairperson: To what degree, if any, did the Declaration of Independence inform and influence the Constitution? Pole: T h e appropriate and immediate contrast to the Declaration of Independence was the state governments. A great deal happened between 1776 and 1787. T h e state governments were almost immediately contemporary with the Declaration of Independence. The Declaration obviously was not an instrument of government, but a manifesto. The new states were instruments of government and m a n y of them contained declarations of rights which illustrate effectively

Maintenance of Revolutionary Values

33

the point that Jack Greene has been making about the importance of the concept of independence. "All men are born equally free and independent" is the opening of the actual philosophical statement of the Virginia Declaration of Rights. Virtually the same words were used in Massachusetts a few years later, not too surprisingly because John Adams probably drafted them both. But that does place a great deal of emphasis on the fact that in order to be a worthy participant and to possess virtue in the public sense of the word, it was necessary for the individual to be free of domination by the will of another man. The quality of independence is necessary to the fullness of being a human. Moreover, it is quite interesting to note that in the Articles of Confederation the clause which anticipates the comity clause of the Constitution excludes vagrants and beggars. They are not conceded the rights of citizens. They are an unsafe element. However, as Jack Greene suggests, there was a note of optimism at the time these documents were being drawn up in America. There was a feeling that the expansion of the economy would bring the shiftless, rootless, unpropertied and unsafe element into the political society. Chairperson: Do we all agree that as far as the Constitution itself is concerned, with the possible exception of the Preamble and absent the Bill of Rights, there is little connection between the expressions of the Declaration and what is continued in the Constitution? Gallagher: I would dissent on this point. The compromise necessitated in the striking of the manifesto fixed the bounds within which it became possible to write a Constitution. I think the manifesto constricted the future by establishing the priority of the Union over the question of equality. Follow the sequence in which priorities are established in the original Declaration and carried into the Constitution. You can talk about the pursuit of happiness and other unimportant appendages in the Declaration. But the intentional, conscious striking from the Declaration of any reference that would give content to the meaning of equality is the basic point. Pole: The real center of that celebrated deleted passage is a denunciation of the slave trade, not slavery itself. It's also a devious passage because it denounces the King of England for having foisted slavery upon an apparently unwilling planter class. Values For Today Wiggins: I don't find it profitable to get into the thicket of why these values were enunciated 200 years ago. I'm satisfied that they were and that the drafters of the Declaration picked a good list when they described life, liberty and the pursuit of happiness. Professor Greene placed them in a rank order in 1776 of liberty first, pursuit of happiness second, then justice, followed by equality.

34

Committee

I

I thought about how I would rank them in 1976. I come up with a wholly different ranking in terms of reality today. Current opinion would put equality close to the top rather than fourth. By equality, we mean now more than political equality; it has come to mean social and economic equality as well. Justice is listed just beneath equality. I'm not sure whether it belongs there or as number one. But it's near the top, in any event. Liberty in today's society has an ill-defined separate meaning. It really is subsumed in these other values of equality and justice. Pursuit of happiness has very little separate meaning and takes its meaning in today's society only in terms of justice and equality. So there are two primary values today: equality and justice. M y current concern is the cost of achieving equality, as we now understand it, in justice because there is always a tension that exists between those who are denied equality, as they see it, and those who have it. Usually it's the minority who seeks the equality and the majority who is comfortable. Any society that puts the majority against the minority puts the minority in an extremely vulnerable position. Their rights exist only at the sufferance of the majority in the final analysis. Finally, what would a modern day Jefferson or any other p e r s o n — considering the problem of proclaiming a Declaration of Independence in 1 9 7 6 — s e e as the great values today? I suggest that they might include peace, justice, equality, and a new value that is taking on current meaning, security, a value which was not considered separately 200 years ago. Chairperson: Could you define it? Wiggins: No. I think security is in the eyes of the beholder. But security is coming to be understood in economic terms in our society. People are coming to believe that they have a right, secured by their government, to a certain level of freedom from want. That's a very expensive value to achieve because the level of such freedom keeps escalating. Chairperson: Would you include order as one of your 20th century values? Wiggins: Professor Greene incorporated justice and order together. Order is clearly an important value in our modern society, and I am sure it was then. And that's something that causes me to include in my 1976 Declaration of Independence the concept of peace, because it is a value which is understood to mean domestic tranquility as well as international security. A modern day Jefferson would probably include peace in his Declaration of Independence. Wisdom: Mr. Congressman, did I understand you to say that you would eliminate liberty? Wiggins: Judge, it's not that I would eliminate it. I'm trying to say what I think society believes now: that liberty is obviously a valuable right, but that it's subsumed within the meaning of other rights at the present time; that justice and equality are perceived to be tantamount to liberty in the eyes of the general public.

Maintenance of Revolutionary Values

35

Wisdom: I would disagree with you. It may well be subsumed in the idea that there cannot be unrestrained liberty; that you are not free to cause harm to others. Jenner: Whether you call it liberty, whether you call it privacy, whether you call it the pursuit of happiness, there is a major concern in American society which has existed for a long time, of privacy in the home, privacy in the office. In 1787 perhaps that's what I think they thought of as pursuit of happiness. Four years later, with passage of the Bill of Rights in 1791, what were they emphasizing? I suggest religious freedom, freedom of the press, freedom of speech, the right to assemble and petition, the right to be secure in one's person against unreasonable search and seizure, the necessity that a warrant be issued only upon probable cause, protection against testifying against yourself in a criminal case, due process of law under the Fifth Amendment. These were all directed to the federal system; in those days they didn't apply to the states. It wasn't until the 14th Amendment that the Court began to make the provisions of the Bill of Rights applicable to the states. I don't think you can leave out the sense of reasonable security—the feeling that you can go safely out in the street, to the store, to a movie and that others cannot enter your home or interrupt your meetings without your permission. Chairperson: Are you saying that you agree with the Congressman's listing, but would add liberty, privacy and pursuit of happiness? Jenner: Yes. Wisdom: Those are substantially my views. Wiggins: If we include liberty, something that I would be happy to include, I think it would be for the purpose of exhorting future governments to recognize it. It is a value which has been eroded in order to achieve social order. Wisdom: That's very interesting, because to me the thrust of the Kelly paper is that there has been a shift from equality of opportunity to enforced equality of position, which can only be accomplished by some diminution of individual freedoms. Pole: So long as these are personal choices, they presumably represent liberty. There does seem to have been a shift. It is valuable to have security introduced because it isn't present in 18th century thought. Security in 18th century thought was provided by families, by networks of kinship. It was not the responsibility of the state at all. W e have had to adapt old words to things we feel to be matters of great moral responsibility and obligations of society, but they represent choices. Highly developed systems of social security, insurance, job security, and so on, represent a social choice, which conflicts with a highly anarchic but volatile system of individual incentives. E. Wright: In 1976 we accept liberty as privacy and security against the state. Wouldn't some of us say, " W h o will guarantee social security?" To whom do you turn for better government, for an extension of a wider social concern? You turn, don't you, to the

36

Committee

I

government? Don't you then get into a difficult conflict between what you mean by liberty or liberties? Liberty Versus Equality Kahn-Freund: Someone said there was a tension between the concepts of equality and liberty. This seems to be absolutely fundamental from the point of view of both the Declaration of Independence and the Constitution. W h a t does it mean? T h e German sociologist Max W e b e r made a careful distinction between freedom from, and freedom to do, which is, of course, a democratic concept. I don't know whether the word " l i b e r t y , " as used in the fundamental documents of the United States, has to be seen purely in the light of the historical experience of England in the 17th, and of America in the 18th century. For us the word liberty must have a different meaning from what it had in those days. Does it mean liberty only from oppression by government, or does it also mean liberty from oppression by social forces which are not government? The whole development since the founding of the United States seems to be a constant endeavor, sometimes successful, often unsuccessful, of finding a synthesis between these intrinsically antithetical conceptions of liberty and equality. Jcnner: T h e Professor has raised a point: freedom against, or opportunity to do. In the 18th century it was against. It was a fear of government itself which they rebelled against. Opportunity, as I think they thought then, was freedom of opportunity with respect to upward mobility. These men were not all elite; and even if many were, there were some who had looked back to see from whence they had come. A wide variety of opportunities had been essential to the achievement of the high estate which they had attained. They had children. They were going to have grandchildren. They were thinking of the future as well as of the immediate present. W e are concentrating too much on 1776 and 1787 and not giving them credit for having looked forward. They were trying to establish something that would work in the future. Chairperson: W h a t , if any, difference does it make for us today what equality meant then in view of the experience we now have with concepts of equality and liberty? I would like to bring us back to the values of the Declaration and the Constitution. W h a t difference does it make what the founding fathers had in mind in view of developments since? Pole: Your question puts me in mind of a remark of Mr. Justice Holmes, that continuity with the past is not a duty; it is only a necessity. Edley: As long as we have strict constructionists and liberal constructionists there will always be those who will go back to the literal meaning of the words of the founding fathers. But there are restraints. Free press versus fair trial, for example, is still with us. If we are asking what are the values as we would write them today, rather than what are the values as they have been interpreted

Maintenance of Revolutionary Values

37

through time, we are getting at some fundamental issues in terms of where we go from here. Original Meaning Wiggins: The only importance of original meaning is as it relates to judicial restraint. If we abandon all original meanings of words and phrases, then we yield to our judges the ability to rewrite the Constitution on a daily basis, and there is no consistency within it. We would admit to the possibility of de facto amendments to the Constitution. But a dynamic Constitution is a necessity. Whenever original meaning clashed with current firmly established social imperatives, original meaning has always yielded. One of the most recent examples of that was the way the Court anguished over the death penalty in Furman v. Georgia.1 There has been a movement away from the original meaning of cruel and unusual punishment to a more modern interpretation which has social acceptance. Hence, we must keep in mind original meaning for restraint and consistency, but it does not require religious adherence to it. Wisdom: W e really have had at least two Constitutions; the 13th, 14th and 15th Amendments changed the Constitution through the expanding concepts of due process and equal protection of the laws. By virtue of those two important clauses, we now have a different theory of equality. For example, we have affirmative action, a doctrine that really calls for equality of position rather than pure equality of opportunity. Motley: I think we have had three constitutions. T h e Bill of Rights was the first new Constitution, incorporating the concept of individual liberty which the framers of the initial Constitution had omitted completely. T h e y were so preoccupied with setting up the framework of government that they just overlooked, or felt they might not have had time to concentrate on, individual liberty. But within two years after the Constitution was adopted, people in the states realized there would be a time when this newly created government might do exactly what the British Crown had done and all the reasons for fighting a revolution would have been lost. T h e n , as Judge Wisdom says, we got the second new Constitution with the 1 4 t h Amendment, which made these rights applicable as against state governments.

Tenner: Although their major concern was setting up the government of the United States, Mr. Madison did raise the matter of a Bill of Rights in September at the convention. Kahn-Freund: I would like to go back to what Jefferson meant in the Declaration of Independence, what the fathers of the Constitution meant by the words they used. Here you have a point which distinguishes American legal methods in a significant way from legal methods on the other side of the Atlantic, especially in England. The English theory of statutory interpretation is that words have to be interpreted as understood by those who wrote the statute and not

38

Committee

I

in the light of social or political or economic developments which have taken place since. This difference has immense practical importance. If you take, for example, the interpretation of the commerce clause by the Supreme Court, at least since 1936, and compare it with the interpretation of the corresponding clause in the Canadian Constitution by the Privy Council: " W e must read this as it was understood by those who wrote the British North America Act in 1 8 6 7 . " This led to totally different and antithetical conclusions from those to which the U.S. Supreme Court came. Therefore, the question of what those who wrote the Constitution meant by words like "people," " m e n , " "liberty" or "equality," all words which have completely changed their meaning, is purely a matter for historians and not a matter for lawyers. J. S. Wright: The Professor knows that our great Chief Justice Marshall in one of his early opinions—or maybe in several—said that the Constitution was a living document. He told us that this Constitution was a document that was to live for ages to come. So he wanted us to interpret the Constitution, as the Congressman has indicated, in line with the political and social imperatives of the day. Only in cases where the language will not accept bending is an amendment to the Constitution necessary. Pole: Perhaps one could reverse the question by asking if you are skeptical about the proposition that the meaning of the language at some point in the past has ceased to be relevant, then at what point in the past did it cease to be relevant? For example, did it cease to be relevant in 1 8 6 8 when equal protection was written into the Constitution? Everybody knows that in the Brown case, 2 the Court actually sent counsel back to the question of legislative intent in 1868. The answers to that were rather uncomfortable. W e all know Congress was establishing segregated schools in the District of Columbia at the same time it was approving and adopting the 14th Amendment. But the question of what the language meant then was at least considered by the Supreme Court to be a relevant question. Are Amendments Necessary? Wiggins: I'm thumbing through the Constitution here, looking at the amendments and asking myself, in light of current understanding of law, how many of these amendments would be necessary today. I believe probably the first four are necessary, but thereafter, except insofar as the amendments that change the structure of government in some way, such as the manner of selecting a senator or a representative of the District of Columbia, that probably any modern court would recognize these rights without amendment. This demonstrates cogently that it is a dynamic document indeed. The 14th Amendment was essential after the Civil W a r . I'm not arguing that it is not necessary today, but in view of judicial inventiveness, I'm not sure.

Maintenance of Revolutionary Values

39

Wisdom: There is a good deal in what you say, but I would not go all the way with you. For example, courts have had too much trouble with the terms "unreasonable search and seizure" and "probable cause" to be able to say that we would not need that language in the Constitution. ]enner: You don't think that the prohibition against testifying against yourself in a criminal case is one you would have to include? Wiggins.- I just suspect that if it weren't there, those values of fairness and justice which are embodied in the Fifth and Sixth Amendments would be found to exist in our Constitution under some other word. Motley: Do you mean all male judges would have given us females the right to vote without the 20th Amendment to the Constitution? Wiggins: They did that ultimately. Chairperson: Without the amendment? Pole: I wonder whether Representative Wiggins would have said that twenty years ago. Wiggins: Probably not. Pole: Moreover, if this concept of fairness has so permeated the minds of judges that they would formalize it now, is it not because it has been there for such a long time? Wiggins: The notion that people are finding truths in our Constitution which have existed for 200 years boggles the mind. We rediscover original meaning all the time. Wisdom: The right of trial by jury is certainly a right that would not exist but for the language in the Constitution. It doesn't exist in England in most civil cases, nor in many states and many European countries. So it cannot necessarily be considered a fundamental right. Wiggins: Judge, I'll concede that I was too sweeping in my statement. Motley: The genius of the Constitution and its survival are due more to the built-in amendment device than to interpretation of the meaning in light of contemporary conditions. Every time a major problem presented itself to the nation, the Constitution was amended to deal with it, for instance, the right of women and eighteen-yearolds to vote. J. S. Wright: What about segregation? Motley: The 14th Amendment later was construed to prohibit segregation in schools. The genius of the framers was that they provided for amendment of the Constitution by ratification by the states. But for that, the Constitution probably would not have survived. 7. S. Wright: But the Congressman's point is that when the moral, political, social imperatives demand a change, usually it can be worked out without formal amendment. There was segregation, as Mr. Pole said, in Washington, D.C., as well as throughout most of the country in public schools at the time the 14th Amendment was passed. So it was clear that when that was passed it was not intended to abolish segregation in public schools.

40

Committee

I

But along came 1954, and the Supreme Court held that after 100 years the 14th Amendment does say that the changes in our society demand this interpretation, not at all in line with what the framers of the amendment intended. Applying The Constitution Hyneman: The proposition the Congressman has given us is that the function of the Constitution, or let us say the charter between the people and those who are to exercise the authority of government, has served its purpose when the charter has become well understood. Be assured there are two Constitutions. O n e is the Constitution that is known to the lawyer and the judge on the court. T h e other is the Constitution known to those farmers I visit at my brother's place. They know about the Constitution too. They cannot quote it, but it's terribly important to them because it supports and bolsters their notions. Let's take the Watergate situation. T h e y thought the President was too arrogant. They have a notion that there is something in the Constitution that says things ought not to be this way and it supports their notion that they ought to do something about this. I would like to go further because of the earlier question about whether liberty has a meaning today. I was thinking about the behavior of the black people in the South in the 1 9 5 0 s and 1960s. It would have been no suitable answer to them if you had said, " Y o u cannot get equality. The white man is not going to let you get equality." I do not think they would have then said, " W e l l , we'll give up! We've got nothing else to try f o r . " A Constitution, like the Bible, is a common reference point where statements sum up human aspirations and experience. It is important to the non-elite to have those things to turn to. I taught constitutional law for many years, and I never settled the question of how you make a judge an interpreter of the Constitution and yet subject the judge to the Constitution. Maybe it's only an interplay in which the untutored and even the ignorant say, " T h i s has gone far enough," and the judge thinks, " I cannot go too far too fast." Or, let us say, the more reluctant and hesitant members of the court dissent on the ground they can't go too far too fast. That interplay keeps this a document for the whole population and not just for the judges. Brown: Professor Hyneman taught constitutional law in the same part of the county I come from. It may be that I come only with the understanding that your farmer has of it, because I am not a lawyer by training. I don't regard "pursuit of happiness" as merely a felicitous phrase. Before I got into politics, I spent some time reading, among other things, Thucydides, who talked about pursuit, not attainment, of happiness. I think that Jefferson was familiar with that. I think he

Maintenance of Revolutionary Values

41

had a clear notion of what was meant when they talked about pursuit of happiness. As a pamphleteer of sorts in the late 1960s, I got around to writing some occasional things and used high-blown language. W h e n you get down to divvying up and deciding who gets what, when you form an organization, then you have a different process. T o a great extent the Declaration of Independence separated itself from the distribution of power question, central to the Constitution. T o try to impute to it the same principle is a fundamental mistake about the nature of organization and the distribution of power. This is what the Constitution is about: who is in charge and how do you decide when they have overstepped their boundaries? As I recall constitutional history, the second Constitution, the Bill of Rights, was, in fact, the result of a demand in the Massachusetts ratification convention. They simply wouldn't ratify a document that didn't have some guarantees. That then became the widespread concern among the other ratifying conventions. They said, " W a i t a minute. W e want a certain amount of protection that isn't there but was promised before ratification." They were afraid of the distribution of power. They were afraid of what happened to power. The Constitution didn't think about some of the elements of distribution of power which are now absolutely fundamental in our society. If we are to look ahead, we have to deal not with what they thought at a time when the frontier was open. W e are now in a closed frontier. Now there is a much smaller percentage of ownership. More importantly, that percentage of the population which now owns controlling interest in the important institutions of society is smaller than it was forty years ago. Power is more concentrated. Nobody ever conceived this. They conceived in the First Amendment not that you should be free to believe something—that's not the importance of the freedom of religion clause—but that you should be free from a union between the church and the state. They never conceived of a union between corporations and the state. All of a sudden today we are faced with institutions as powerful as the church and as dangerous to our ongoing freedoms as the church was 200 years ago. Those are the fundamental questions we face. W e are all going to give up something when we get down to dividing up what we have. Judicial Interpretation Chairperson: Is it the consensus of this group that the Constitution is what it is because of judicial interpretation of words, not on the basis of their original intent, but in terms of experience? T h e amending process is there, but it is not the primary way to determine the Constitution. I, for one, think a consensus on that, a point of view I obviously share, ought to be noted as part of the report of this group on the maintenance of Revolutionary values. Wiggins: If it is going to get into the report that this group affirms the right of the Court to give expanded meaning to the Constitution,

42

Committee

I

it o u g h t to b e mentioned that the power has to b e asserted judiciously. T h e C o u r t can take a leadership role, but if it gets too far ahead o f the m a s s e s , it's going to undermine confidence in g o v e r n m e n t . T h e reaction will b e restrictive and perhaps shortsighted. T h e people can b e steered b u t they cannot be led in some direction they d o n ' t wish to go. Wisdom: W e have m a n y judicial disciplines and restraints which act as countermeasures. For example, we are not supposed to reach the constitutional question if we can avoid it. J.S. Wright: A n d , second, we can't enforce our own j u d g m e n t s . Wisdom: Right. I'm very doubtful about the wisdom o f taking any c o n s e n s u s on this point because it would have to b e so qualified. Chairperson: Let me suggest that w h a t struck me about J u d g e W r i g h t ' s c o m m e n t was that, indeed, what Chris Edley said was true: it's important to k n o w what the original meaning was. It's not determinative or definitive; it is merely historical and instructive. T h i s was the suggestion o f Professor K a h n - F r e u n d . If we have a consensus we ought not lightly to pass over it. J. S. Wright: W o u l d it be more acceptable to state it in these t e r m s : the history o f the last 2 0 0 years has confirmed the truth o f C h i e f Justice M a r s h a l l ' s statement that the Constitution is a living d o c u ment intended for ages to come? Chairperson: Yes. Seymour: A n d to the extent that judicial interpretation has been applied to various parts o f the Constitution, having taken into account the original intention and the other considerations to m a k e it a living d o c u m e n t , it has on the whole been able to keep it a living document without, except in a few cases, the actual process o f amendment. Wisdom: But we have had to amend the C o n s t i t u t i o n , and that should not be minimized. W e had to add the Bill of R i g h t s . W e had to add the 1 3 t h , 1 4 t h , and 1 5 t h A m e n d m e n t s . S o you c a n n o t say that the C o n s t i t u t i o n as it was written without the a m e n d m e n t s is necessarily a living d o c u m e n t . It just isn't. Seymour: T h a t ' s right. But to keep it a living d o c u m e n t , m o r e a m e n d m e n t s are required. I wouldn't like to overstate the role o f the amending process because it's been less important than the role o f interpretation. Gallagher: I dissent from the present consensus. I challenge the rubric under which we are gathered in this c o m m i t t e e : the m a i n taining of Revolutionary values. W e should be concerned with attaining, rather than maintaining, on the grounds that the actions that took place 2 0 0 years ago were not what they should have been. T h e y disregarded the real concerns o f equality, settled down mainly on the question o f liberty, and this has come down to us through the legacy both o f legislation and of judicial action. T o d a y , the b e s t concession we hear about the meaning of equality is equality o f opportunity; and t h a t is, once again, a definition o f liberty. It is not a definition o f equality.

M a i n t e n a n c e o f Revolutionary Values

43

If we box ourselves in permanently to the horizons foreseen by the founding fathers, we will wind up continuing their errors. W e need to have some irreverence for that document to which we pay supreme reverence. It may be that the most reverent attitude is one which seeks not its perfection but rather its completion in terms of unfulfilled intent. J. S. Wright: The living Constitution doesn't help you? Gallagher: Living in the sense that we have a necessity to observe the meaning of the Constitution? Necessity has a peculiar ring. It means that it is inevitable, foreordained. Unless we recover the freshness of the spirit of dissent, which is supposed to be guaranteed in the Constitution, dissent from the original meanings and content poured into it, we are not going to get the right kind of revolutionary spirit. I would again say that we have not yet begun, either through legislation or litigation, to arrive at the meaning of equality which was originally prescribed. Chairperson: Prescribed where? Gallagher: Prescribed in the sense that it meant not what it said in terms of all men being created equal. I'm talking about the Declaration which became the intent of the Constitution. It limited equality to certain selected persons. The Constitution speaks of "equal protection," "due process," and things of that sort, but it gives no affirmative direction. Now we have legislation seeking affirmative direction. W e couch that once again, not in terms of equality, but in terms of inequality. Wisdom: Mr. Gallagher, aren't you restricting the definition of equality to equality of opportunity? Gallagher: No. Wisdom: It seems to me that you are, because we also have the equality of position whenever we put into effect an affirmative action program such as reverse discrimination. But you do have it when you recognize certain seniority rights among minorities. Gallagher: Yes, I understand your point. Wisdom: I think it applies in other fields, too. It might apply to education. It's not just equal opportunity; it's equal position. Gallagher: Yes. And more than that, it's opportunity to be equal and to be considered as equal. This notion is not currently in the minds of either the legislature or the judiciary. Chairperson: Let me get to your dissent from the consensus. I would suggest that you are saying we ought to pump a little more adrenalin into the Constitution and make it live more abundantly, rather than saying that it is not a living Constitution. But do you disagree with the basic notion that the judiciary, in applying the Constitution, must consider experience not contemplated by the founders? Gallagher: I don't disagree with that. I dissent from the implied notion in the discussion that we recognize no inadequacies in the original conception. I'm talking about looking squarely at the choices

44

Committee

I

made at the time the Constitution and the Declaration were written, recognizing that there are things which need correction. Chairperson: You hear more in the consensus than any of the rest of us. I don't think it goes that far. As a matter of fact, some among us were not contemplated in the Constitution at all, so the reverence we have must be limited in that regard. Motley: Legally speaking, that's been corrected by the 14th Amendment. Let's concede that blacks were not included in " w e the p e o p l e " initially, because slavery was abundant in the country and slaves were not included. But the 14th Amendment rectified that. It said no state shall "deprive any person of life, liberty, or property," and the whole design of it was to bring blacks into the status of legal equality with whites; not practical equality, but legal. M a k e them a part of the body politic. T h e Supreme Court recently interpreted the 14th Amendment in a way I never thought I would live to hear. 3 T h a t is, if we are ever to rid ourselves of the burden of inequality in this nation, the white community, the white majority, must share a part of the burden of passive equality. Attaining Equal Rights Edley: T h e r e is a limitation to that, and we do not know how great those limitations will be in the future. W h e n some get their rights from one paragraph and others get rights from a footnote, they aren't identical. They may eventually be identical, but at this moment you must distinguish, justify and show how you are to be the beneficiary. I'm pleased with how things are going, but I'm not satisfied that the correction has been emplaced, and I am not satisfied that at any point in history the correction can be made unless the Constitution is rewritten in its entirety and no distinction is made with regard to race. Motley: W e are confusing the practical situation with the legal situation. W h a t I intended to say was that the legal proposition has been corrected. I'm not saying that blacks have a status of equality with whites, but that to a large extent the law has been changed to read blacks into the society. Edley: Are you saying that you are satisfied that a black citizen enjoys all of the constitutional liberties and privileges that whites enjoy? Motley: Yes, in law, on paper. T h a t ' s what I'm saying. Edley: On paper, but not in fact? Motley: T h a t is right. Edley: W e have no disagreement. Wiggins: In fact, you would find a lot of people, not separated by color, who do not enjoy de facto equality. Jenner: Yes, there are other minorities. Edley: I will give you a brief hypothetical. There are certain rights that the Supreme Court and other courts will not be bothered with because they are of a minimum importance. Whites enjoy some of

Maintenance of Revolutionary Values

45

those rights because they have always been construed as a part of citizenship. But they are not material enough for a court to recognize or to render a decision on; or the Supreme Court will postpone accepting the case for many years until the issue is better framed in the lower courts. Take busing. T h e Supreme Court has heard any number of cases with regard to busing, but still the legal remedy has not been effective in giving blacks the same freedoms and liberties within the school situation that whites have. I find it difficult, therefore, to say that the amendments have placed blacks in the same constitutional position as whites. The Court has tried. The language of the amendments perhaps has tried. But that's an inherent imperfection that has not been cured. If you ask a person to wait a year for the vindication of a right that another citizen has already, the status is not legally the same. Meaning of Equality Chairperson: In the Kelly paper there is a term which may cause as much trouble as forced busing. This is "enforceable equality," which has a pejorative quality to it. There is consensus between Professor Kelly's paper and Professor Greene's paper on one issue that we should acknowledge: that equality was not at the top of the hierarchy of values set forth either in the Declaration or in the Constitution. We are concerned about the notion of not only what was intended by the founding fathers but also what is and should be intended now by the concept of equality. Wisdom: This is the basic thrust of the Kelly paper. He is concerned that there has been a shift from equality of opportunity to equality of position, and that the shift will impinge on individual values that were originally called natural rights. Chairperson: The issue I would like us to deal with is the meaning of equality as it presently exists in our system of values. Let's have some comment on the validity of Professor Wright's notion of equality as a training of elites. I guess it's what most of us have some addiction to because we are probably the products of it; that is, the meritocratic-democratic experience, of people moving from one status to another. Have we rejected this notion of equality? Should we reject it? If so, what is to replace it? Here is the nub of the issue of what equality ought to be in contrast to what it was. It has been suggested that there is a basic conflict between the drive for equality and the wish for liberty, as well as the issue of justice and liberty, justice and equality, as Revolutionary values. Has the drive for equality come to the point where it endangers individual liberty? Give some thought to the nature of the term "equality," whether it is equality of opportunity, or equality of result, which has been alleged to be the present nature of equality. What, in our judgment, is the present accepted meaning of the term "equality" as it relates to the constitutional protections that

46

Committee

I

Professor Hyneman's farmer sees as the meaning of equality? Pole: Agreement doesn't exist about that question. That is a highly complex question, and it cannot be answered without breaking it down into its components. What the farmer is appealing to is a sort of residual idea, but we're involved in a process of analyzing the sources and components of these ideas. It is possible to discern six different categories. They have different emphases on different periods of American history. But I'm speaking in an analytical sense as though they were all present at any one time, but not rating them in a hierarchy. One is equality of law. Another is equality of what political scientists call political power, though I prefer to call it political equality, because it often does not involve much power. It means one person, one vote, in constituencies of equal size. A third is equality of religion. In the 18th century it meant equality as among different religious sects. It has come to mean recently something more subtle, according to the Supreme Court, equality of conscience. The Court seems to have said that a secular conscience is as deserving of respect as is a religious conscience, as in a Vietnam conscientious objector case. Another category is equality of opportunity, which was not really articulated in the 18th century at all. Another is a basis for almost all the others, what I call equality of esteem or respect. And then there is another category, equality between the sexes. It is troublesome because there is genuine disagreement about some of its implications, which disagreement doesn't simply divide the sexes. If you take those categories, the emerging principle is that equality should mean equality as among individuals. The state consists of individuals. The Constitution acts upon individuals. Individuals are accountable for their actions. And if individuals are equal in any or all of the categorical respects mentioned, then equality means interchangeability. It's not very difficult to see the way that concept developed among the egalitarians of the 18th century, like Tom Paine and among the early socialists. In either case, a peasant was as good as a lord. It's rather interesting how these two different streams of thought—that one individual is as good as the next—actually converged. Incidentally, when James Bryce was writing his famous book on the American commonwealth, 4 he was struck by the sense in America of something like this. Writing in England in the 1880s, and as British ambassador, of course, he felt that Americans had a fundamental sense that they were all made of the same common clay. That a duke is something fundamentally different from a laborer is a notion not present to Americans. Bryce said that Americans respected, even revered, men of great wealth. But Americans didn't feel that one man was made of porcelain and another only of earthenware. That imagery expresses something many of us from Europe still feel some sense of in this country.

Maintenance of Revolutionary Values

47

At any rate, the idea of interchangeability seems to be a workable one. It presents obvious difficulties in the light of whether equality of result begins to interfere with individual liberty. Field: Why do you mention equality between sexes instead of equality between races and other groups? Pole: It reflects my way of thinking about it. The idea that a peasant and a lord, other things being equal, could do the same jobs; that a black and a white, a Jew and a gentile can do the same jobs; this doesn't fit the concept of equality between sexes. Field: You think equality of opportunity would take care of it for the other categories but not for the sexes? Pole: The reasoning of the Equal Rights Amendment may take care of it for the sexes, but I would allow a little play there for either question. For the sake of analysis, it's the one category I would insist on the least. Equality Before The Law Kahn-Freund: I am puzzled by the first two categories: equality before the law in the wording of the Constitution and the 14th Amendment and equality of political power. What does equality before the law mean? It was understood in the 18th century as a pure form of equality. That is to say, the duke and the laborer have by legislation the same opportunities of getting a fair trial. But equality before the law is not social equality and economic equality. Equality before the law is in itself meaningless; it derives its meaning from the social organization and economic organization in which it operates. When we begin to analyze the word "equality," even in its most obvious connection with the Constitution, we are faced with the fact that any analysis in terms of purely political and legal institutions is completely insufficient if it does not take into account the economic side of the matter. What does equality of political power mean? That there are equal voting rights? That there are no property qualifications, no sex discriminations, no race discriminations? It doesn't mean anything of the sort. The person with a million dollars has a million times more political power than the person with one dollar. He can influence the press, organize political opinion, influence the channels of communication. The term "equality of political power" derives its meaning from the attitude about the relationship between the state and the economy. I cannot see how this discussion of equality can ignore the matter of government influence on the economic organization of the country, and, therefore, on liberty, particularly liberty of the use of property. If we analyze the term equality we cannot separate the legal and political from the economic sense. Seymour: That is undoubtedly true. But in approaching this problem we must be aware that there are some problems that no Constitution can solve. One must address the problems that might be manageable by constitutional development. The Gideon case5 in 1963,

48

Committee

I

requiring counsel for poor persons in criminal cases, was a great step. But providing counsel in civil cases is still wide open. That is a step where future constitutional change ought to be developed. Wiggins; Without attempting to subdivide equality for purposes of analysis, I am becoming convinced that equality means the absence of governmental classifications of individuals on an irrational basis. What is rational and what is not is not a static concept. It is dynamic and reflects a growing awareness of relative values. The growth of our country and the recognition of new values make a previous rationality irrational today. Pole: The Constitution does not say what sort of economy the United States should have. Equality before the law is procedural, developing into the American concept of due process. But that is its least full manifestation. It means the laws themselves should be equal laws. That wasn't recognized until Yick Wo v. Hopkins in 1886, 6 when the Court said that the guarantee of equality before the law means the guarantee to all of equal laws. The current feeling is that if the laws are not equally accessible to all, they are not equal. The point I really wanted to make from my list is that these categories of equality are not necessarily compatible. Has equality reached the stage at which it threatens some other values? The system encourages the development of inequalities of result. Economic Equality Chairperson: Do you assume that the constitutional concept of equality is neutral with respect to notions of economic distribution and economic fairness? Pole: It cannot be neutral. Chairperson: I'm talking about the purpose, the expected application at this moment, going back to the point of the establishment of these notions as norms. Pole: The categories I've suggested are not actually explicit in the Constitution. They have to be sought. These components have been present over the past 200 years in varying degrees and for different people. Chairperson: I do not see and hear the concepts that Mr. Wiggins has talked about, equality with a component of security, and equality of ability to manipulate the economic system in a manner satisfying to the individual versus persons without any power. Is it your judgment that the concept of equality is neutral in terms of result, that it is neutral on the issue of economic equality, economic justice? Pole: The concept of equality of opportunity is capacious and flexible. Anything can be included in it. J. S. Wright: Does it include equality of result? Chairperson: Can we find over our 200-year history an attention to the concern that Professor Kahn-Freund articulated? You have

Maintenance of Revolutionary Values

49

answered that probably it was within the concept of equality of opportunity to at least give some attention to this. Pole: Yes. It has been the subject of comparatively little attention in American history. Greenberg: These various equalities may have a definite relationship to one another. It may be significant that with changing economic and social perceptions, needs, and the rise and fall of groups, it is really impossible to have equality before the law. It is difficult, perhaps impossible, to have equality of esteem without economic equality. We may find that in different periods of economic distribution, tensions, and the impact of various societal forces, the requirements as to a particular aspect of these equalities come to the fore and have implications for others. Edwards: We started out with an observation that's really the opposite of what we're talking about. One of the prime values of American society is the right to be different. I do not conceive our objective to be to make human beings interchangeable. Our British friends have given us a feeling that we should debate this in fine analytical terms. The meaningful problems of equality in America today are vivid and real, and approaching crisis stage. The gentlemen who framed the Constitution and who, after much bitter battling, added the Bill of Rights, did have some sense that equality wasn't supposed to be applicable to slaves as far as the great majority of them were concerned. What they gave us was not a set of rules to live by, but a set of ideals to achieve someday, somehow, somewhere. It took 100 years for this country to get from the Declaration of Independence, the Constitution, and the Bill of Rights to the 13th, 14th, and 15th Amendments, which abolished slavery. Then we backslid for most of the subsequent century until the Warren Court reminded us that there was an objective in American life, to give hope to people who have little hope, and that this applied to blacks as well as whites, and to people of all religions, creeds and colors. Now we're backsliding again at a rapid rate. The concept of equality before the law is not a sterile one. Equality before the law is the most meaningful single legal principle we have available. This country never said anything about equality in economics until the War on Poverty legislation in President Johnson's administration. It was a magnificent declaration, very little implemented, and killed as quickly as possible by the successor administration. That is not in the Constitution, except in the sense that Congress has the right to do it if it sees fit. What does equality before the law mean? It's going to depend upon the nine gentlemen on the Supreme Court of the United States. The majority of those nine, for a considerable period of our lives, thought that equality before the law meant action by government to increase the opportunities for upward mobility, underpinning the legal thought of the Warren Court. We are now closing doors all over

50

Committee

I

America to the opportunities for upward mobility, with the majority on the Supreme Court leading in that direction. W e could be at the beginning of an era not far removed from the days of the Taney Court when people were not able to see ahead. We're headed toward a situation in which twenty large cities in America, all black, are surrounded by white suburban rings and located in states where the political and economic power is all white. Can anyone think of a formula more destructive to the American ideal of democratic government? Chairperson: Do you believe that equality of opportunity has had a meaning which may now be in the process of being reversed? Edwards: You heard me with reasonable accuracy, but I am not through. When we see jobs being denied, people being laid off, cities threatened by bankruptcy, restriction of opportunity in a host of meaningful ways, it is not a time for academic definitions. We need to consider real problems that lie ahead. Chairperson: The purpose of this exercise is to start with a level of abstraction. What you have done is to pull us back. Professor Pole's articulation of a set of descriptions of what's involved in this term is not a luxury we can long stay with. We have to come to the reality of conflicting perceptions of what various individuals are entitled to. Economic Opportunity Pollak: Judge Edwards has performed an important service by concentrating on essential problems confronting a nation that is dedicated, among other things, to equality. He has talked about a pathology most dangerous to the American body politic. He has described a range of problems that can be considered in terms of the equality values in the Constitution. Is the Constitution neutral with respect to economic matters? We can clearly answer in the negative. The equality concept tells us that the Constitution is not neutral. What its implications are as to the nature of the economic order have changed over history. If we start from the beginning, we could say that the privileges and immunities clause in the original Constitution was to be a declaration that all of us—slaves aside, of course—were to be free to carry on our economic affairs without essential limitation anywhere within the Republic. This is an important statement about economic opportunity. It connects with a Jeffersonian view of the kind of country we were going to build, not concentrating people in the cities. When we amend our Constitution to make possible an income tax, we've done so to accomplish, among other things, important purposes that have income redistribution implications. Today, when one thinks of the extraordinary decisions that Judge Motley, Judge Wisdom, Judge Edwards and Judge Wright have had occasion to make, they have been decisions that at various times in various ways have determined resource allocations. Whitney Seymour urged us to bear in mind that the Constitution, to the extent that it's a directive to judges, is a directive that has to

Maintenance of Revolutionary Values

51

be couched in terms of what courts can accomplish. There are institutional capabilities that courts have, and far larger institutional capabilities that legislatures have. When Judge Edwards referred to the War on Poverty and how little it has accomplished, he was referring to initiatives ultimately taken much too late by the Congress. Are those initiatives not initiatives that have a constitutional momentum behind them? I would say they do. Title VII of the Civil Rights Act of 1964 7 is a legislative project based on the commerce clause. The legislative commitment to insure equality of opportunity in employment is a commitment which can be soundly based on constitutional imperatives. Title VII could be redrafted as an implementation of the 14th Amendment. But the courts can't reorganize the economy in that affirmative sense. Chairperson: Does not the Constitution speak with equal imperative to each of the three branches of the government? Pollak: Congressman Wiggins and his colleagues have an obligation to supplement the constitutional efforts of judges. That's part of the constitutional canvas. Brown: One of the problems about defining equality from some sense of economic justice in the Constitution is that there was a perception at the time of the writing that those forms of equality did not necessarily impinge on each other. You didn't have to remove one person's equality before the law in order to make other people equal before the law. You didn't have to diminish one person's religious equality in order to grant another person equal recognition of religious rights and beliefs. To give people equality of economic opportunity, you did not necessarily have to diminish someone else's economic opportunity. Equality of economic opportunity assumes unlimited economic goods to which everyone should have equal access or equal opportunity to attain. That simply is not an accurate reflection of the world in which we now live. I am deeply concerned about the Court's recent decision about retroactive seniority rights, 8 but not because I think the decision was wrong. This was a right that should have been granted. But in order to do that the distributive impact was to take it away from other people who were in roughly similar economic circumstances. The cost of that economic equality was extracted, not from the people most able to pay, but from the people only slightly more able to pay. In short, we are effectively forcing the lower middle class to pull up the lower class, and the upper middle class to pull up the lower middle class. Meanwhile, basically, the upper economic stratum of society is not affected by those costs or is not paying those costs in any proportionate share. That is a question with which we are going to have to deal quickly if we are to avoid having the kind of cities that Judge Edwards talks about. More importantly, we have to get away from the notion of economic opportunity and get much more directly to that unpleasant phrase of enforceable equality or equality of result.

52

Committee

I

Equality of Result Chairperson: With enforceable equality you have to have enforceable equality of result. Pole: For 200 years the idea of opportunity has been linked to the idea of growth. And it does not follow that what you had was equality of opportunity. What you had was opportunity, and equality was a gloss on that. You can still redefine equality of opportunity in an economy that is not linked to growth. The essential thing is to think about the relationship of growth to what is essentially political justice. Chairperson: Are you including a new concept of equality for the future, which is an equality of deprivation? Brown: Probably. Hyneman: Or maybe a better word would be "sacrifice," where a sacrifice must be equalized. Brown: I prefer that. Chairperson: Equality of sacrifice? Brown: We can tie it back to what Mr. Gallagher said yesterday, the absence of "fraternity" in the Constitution. I like the word "community" better. Wiggins: Must we persevere in the sacrifice until everyone is the same? Brown: No. Wiggins: You do tolerate inequality in this great world of equality as you've described it? Brown: I am not sure it is a great world. It is a painful world, and I don't think any of us is going to like it very well, because everybody here will probably end up with less. Wiggins: How much less is acceptable, relative to somebody who has still less? Brown: I'm not sure what the differentiations can be. But I know that what has to be done is to look where one person's acquisitions impinge another person's basic needs. W e haven't begun that yet. That's the city-suburb problem. I don't see how you deal with the cities until you start dealing with the way in which the suburbs ride on the back of the cities. Hyneman: I presume that two things are highly valued: one of them is some measure of equality; the other is a capacity to maximize one's talents and natural gifts as resources to provide the greatest service to one's fellow man. Native talents vary in people and the extraordinarily gifted person ought to be allowed whatever resources are required to realize his potential for contributing to the common good, including giving vent to expressions of arrogance, display and showing off. If you put these two together and say, " I don't think we have allowed this genius more of society's choice goods than was necessary to maximize his capacity," have you an equality between him and another man who has all the goods he needs to maximize his usefulness? E. Wright: If all men are created equal, one has to put some empha-

Maintenance of Revolutionary Values

53

sis on the notion that God created them equal. Equality in the eyes of God indicates equality of esteem. This was not just an American thesis. It was the idea of natural rights for all mankind. Mr. Gallagher touched on fraternity or community. M r . Brown is confining this very much to an American setting. W e should not forget, if we're talking about Revolutionary values, that this is a society held as a prototype by suffering mankind. W e have to keep that other constituency, a great world, in our sights. T h e most moving social comment this morning came from a judge. He has a sharp awareness, not so much of the political or even contemporary arguments inside the Congress, but of an interpretation of a social dilemma. This is an aspect of Revolutionary values in American society which is rather strange. Am I wrong that the war, if war it is, between the Congress and the executive—or inside Congress itself — i s so immediately partisan that it forgets the longer-term Revolutionary values and ideals? Is it the courts and judges in this country who preserve that 18th century vision? Somehow the balance of powers, the tripartite character of government, is a deterrent to Revolutionary values. In a more simple, less sophisticated society, you can get your social revolution carried through more easily than here. O r am I being just theoretical? Wisdom: It is probably true that the courts were ahead of Congress. But the people in this country were not convinced of the importance of desegregation until Congress moved. T h e r e was no real accomplishment in the schools toward attainment of desegregation until Congress acted in 1 9 6 4 and in 1965. Perhaps the most important action was the adoption of the Voting Rights Act 9 which gave blacks the right to vote.

Establishing Justice Motley: There was perhaps another concept in the minds of the framers which has not been mentioned here. W e ' v e talked about equality stemming from phrases in the Declaration of Independence that "all men are created equal." Perhaps the lofty ideals of the D e c laration were not incorporated in the Constitution, but I think they were. T h e r e is one concept in the Preamble to the Constitution that says, " W e the people of the United States, in order to form a more perfect Union, . . . do ordain and establish this Constitution. . . . " But the second objective set forth in the Preamble is to "establish justice," and that is why we're setting up a national government. So that in addition to insuring equality, another objective or responsibility of the courts is to establish justice. Going back to the Supreme Court's decision involving retroactive seniority, the Supreme Court was establishing justice. It has for the last decades grappled wi'i-h the concept of equality, particularly as it applied to the black community, and has through a series of decisions wiped out all legal impediments to equality for blacks. Because of the cases being brought to it, the Court is concerned

54

Committee

I

with the kind of remedy given to blacks trying to pursue their right to happiness, or whatever you want to call it. W h a t last w e e k ' s decision represents is an attempt to define justice and to tell the white community that blacks have equality but the issue now is justice. W h a t is justice? Justice m a y be rough around the edges because it m a y deprive a f e w whites of their seniority. But one of the functions of the national government is to establish justice. C o n g r e s s too must be concerned with establishing justice and has a responsibility for saying to the white community that justice in the society requires that something be done about the plight of the poor blacks and whites in the cities. W e are at that stage in our society when we're beginning to deal with new groups w h o are demanding justice. Prisoners f o r the first time in our history are making a major drive to secure justice f r o m society. T h e question is not of equality with respect to prisoners, but rather of what is just with respect to the w a y w e treat people w h o come into conflict with the law. Is our criminal justice system f a i r and just? Pollak: I appreciate a great deal of w h a t Judge Motley has said. But w e ought not to lose track of the issue that M r . B r o w n is rightly a s k ing us to focus on. W h e n the courts take steps to make advances in the area of procedural due process, insuring that all accused get substantially the same rights that only the rich accused heretofore did, that enlargement of access to the due process system doesn't subtract f r o m a n y body else's due process. W h e n we're giving somebody an identifiable person's seniority, it is usually at the expense of some other identifiable person's seniority. T h e n it is hard to determine exactly w h o the people are that are being benefited and detrimented. But that sort of trade-off is perceived to be involved by a great many people. T h o u g h I'm prepared to see these kinds of determinations go f o r ward as implementations of an equality principle, I don't think w e can avoid examining what Mr. B r o w n has said. There may be a m o m e n tum here which is going to lead us to find that w e are living in a situation that is increasingly unpleasant. People are going to say, " I s this a just s o c i e t y ? " I hope it can be. But we're living now in a world of finite resources. This country is still very affluent. There is still a lot of redistribution we can do, and still e v e r y b o d y in this room will be a lot better off than any one of us needs to be. Brown: T h e substance of the question involved with economic justice is fundamentally a distributive question. T h e Supreme C o u r t ruling last w e e k was not wrong. It is correct to say that there needs to be retroactivity in establishment of those economic rights that h a v e been denied. But justice requires that you try to extract the cost f r o m those most responsible f o r the past behavior and those most able to pay. From that standpoint, justice is not served by extracting it f r o m the people w h o have been promoted in the place of black people, but

Maintenance of Revolutionary Values

55

rather from the people who promoted them in the place of black people. In a larger sense, economic justice requires that, insofar as possible, the costs of attaining justice not be extracted simply from the next rung on the ladder, but hopefully from the top of that ladder, from those most able to pay for those most in need. Motley: Nobody disagrees that the people who can best afford to give something to blacks should be required to do so, but when the Court has before it a specific case as to how to remedy past discrimination, it asks what is a just remedy; and it says that in order to get past the burden of past inequality in this country the burden has to be shared by the white community. Brown: The white community ought to pay for that historic injustice, but who within the white community should pay? It is fundamentally a class question which the Court may not be able to answer. It may very well require a change in the fundamental charter to reach that. But unless it is reached, we are on a rocky road and may not end in justice at all. If you extract the cost from the people least responsible and least able to accept it, that is not justice. Greenberg: My first observation is that the problem that is expected to arise out of pitting particular blacks against particular whites in specific seniority situations may not be as severe as anticipated. In the case in point, which had to do with a rather large industrial installation involving trucking companies, probably fewer than a dozen people were affected by the Court's decision. The Court's dissenting opinion in that case said that the whites should be kept in their jobs, but the blacks should be paid as well, what they would have earned in the jobs. This puts the burden on the employer to pay twice, and then pass it on to the public, which raises other kinds of questions about equal application. The Court has come up with the only statutory remedy available to it under a statute which it has to enforce. But that does not necessarily mean it's the end of the problem. It would be entirely acceptable for further remedial legislation to see that the black workers are put where they ought to be and the white workers not disadvantaged. Tenner: Once the Court has decided a case, that stimulates society generally, and it stimulates Congress to look. You cannot, Mr. Brown, through the Court suddenly accomplish what you are speaking of. This is a representative form of government. There will be pressures brought on Congressman Wiggins and his fellow congressmen, on Senators Percy and Stevenson of my state and other senators. A rectification will ultimately occur. Professor Pole has raised considerations within the term "equality." I don't like to use the term "equal opportunity." It's opportunity, really, to attain. The mother thinking about her son, her daughter, grandchildren, is not thinking so much of herself, but what is going to be afforded to them. The privileges and immunities provision in Article IV has a meaning which the public expects the courts to accomplish.

56

Committee

I

The decision last week was revolutionary in the sense that it suddenly brought to the attention of the country a particular problem that will have an effect on the upper echelon. The employer, looking down the road, will know that he must pay attention to that. It is the future effect of these decisions that is important. Courts and the Law Chairperson: We should remember who we are and what we represent, because it affects our optimism and acceptance of the viability of the system and its manipulatability. That optimism may be related to our ability to manipulate the system. The assumption is that not only does the Court exercise a leadership role, but that this role is consistent with the essential preferences of the system; i.e., the Court makes a decision and triggers the legislature to look at a problem and then legislate. Is not this assumption in and of itself a perversion of a basic Revolutionary value, that change, movement in the society, grew out not of a decision by governmental elite but out of whatever this base of equal man was? Kahn-Freund: From my point of view as a European lawyer, this is the fundamental question to be addressed to American law as a whole. How far is this state of affairs an inalienable consequence of the federal system? Let me be specific. I have observed, with my inadequate knowledge of American law, that the Supreme Court over the last twenty years has, in effect, written important elements of a federal criminal procedure through a series of important decisions. Would there have been a need for this action by the Supreme Court if Congress had had the power to regulate criminal procedure in the state courts? Is it not a fact that the limitation of Congress's power has made it necessary for the Supreme Court to jump into the breach? Has it something to do with the nature of the legislative process in the United States, perhaps at both federal and state levels? Is not the adversary element in the legislative process more prominent in the United States than perhaps in many other countries? Does not the absence of a public-interest pressure group make it necessary for the courts, and particularly for the Supreme Court of the United States, to do what perhaps in some other country is done by the legislature? The expectations attached to legislation in this country, in matters in which the Supreme Court has to intervene, are somewhat dim. The whole of American jurisprudence has been shaped by this relationship between the courts and the law. Dean Pollak's phrase, " W h a t the Court does, supplemented by legislation," stuck in my memory. This is something which no one outside the United States could possibly say. We're talking here about the values expressed in the Bill of Rights and the 14th Amendment. Is the significance of court interpretation so fundamentally important here because of other constitutional characteristics, among which I would rate the federal system first?

Maintenance of Revolutionary Values

57

Edwards: Regarding the role of the courts vis-a-vis change, we make a serious mistake if we look upon the Supreme Court as the primary tool for social change. Our form of government was not put together with that concept at all. In a system where theoretically there is an equal division of power, power flows among the branches of government when one of the branches fails in its functions to effect the popular aspirations. The Supreme Court acts when there is nothing else that decent human beings can do. Why did they move on the school problem? Not because that was the logical way to go about things. They moved because the "separate but equal" doctrine 10 did not even begin to work. It was being ignored, flouted every place in these United States. After the Court had put down an order that said Oklahoma had to let a man— Motley: A woman. Edwards: I didn't know that. —had to let her into the law school, they built a box for her. Chairperson: That was McLaurin v. Oklahoma.11 Edwards: They put her in a box to screen her from the white students. This was such an inhumane thing that the Supreme Court couldn't stand it. Take Brown v. Mississippi:n The Fifth Amendment has been on the books since the passage of the Bill of Rights. Yet, they hung a man with the deputies, his legal guardians, present. They raised him up until he was choking, and then lowered him down and asked him questions. When he didn't give the answers they wanted, they raised him up and lowered him down again. This was when the Supreme Court acted in relation to due process of law in the Fifth Amendment and other rights that have become a part of our law. Many of these problems could be dealt with by the President, by Congress, the regular route for validation of constitutional concepts. When you wait for the courts to act, you wait for a period of crisis. Look at the problem of the death penalty. The fifth man on the Supreme Court who votes for the death penalty has to be conscious that his vote kills 500 people. That's a decision that should have been made by Congress a long time ago. Wiggins: Parliamentary bodies are by definition majoritarian. They represent the majority. Accordingly, I think we can understand why the majority would at least move slowly toward the protection of minority rights. They're not utterly insensitive to them, but bear in mind it is the majority which carries the day in every democratically selected parliamentary body. The courts, on the other hand, react to cases. The don't sit to simply proclaim great rights, absent the case or controversy before them. The cases which are brought to court for resolution are, in almost every instance, the protection of a minority interest. That's the only forum that the minority has. So it's understandable that the courts take the lead in proclaiming minority rights. If we were to leave to a majority body to react to the preservation and protection of all manner of mi-

58

Committee

I

nority interests, we would move very slowly. That probably explains why Congress is not at the forefront with respect to recognition of minority rights. There are exceptions. The Voting Rights Act is a good one. Greene: What you say is true, but nonetheless the courts have acted because of a default in leadership in the other two branches of government. The point about the old American value is not a correct one. The founders did not get their instructions from the people. The hope was that people in government had superior expertise in political matters and would provide leadership for all people. During the Cuban missile crisis, a senator was complaining about the behavior of the executive branch, and the newscaster said, "Well, what should we d o ? " The senator said, " W e l l , I don't know what we should do because I haven't asked my constituents." That kind of democratic metaphysic inhibits elected officials from exercising leadership. The Voting Rights Act is one of the few instances when one or the other of the two branches exercised the kind of leadership the founding fathers would have thought absolutely necessary in all legislators and Presidents. Professor Wright asked how one trains a political elite. I ask if it is possible in this particular society? The failure of leadership and the movement of the exercise of leadership to the courts by default is not necessarily the result of the federal system. It is more the result of the notion that we can't act until we know what the people want. How do we encourage people in our government to exercise leadership? That is a question that this group and all four of these committees should confront. Chairperson: Was not the assumption of the responsibility of the governed community to exercise leadership based upon an assumption of shared values? Greene: Yes. Chairperson: Is it not true that that kind of assumption cannot be made at this moment because, as we have seen, it is difficult to identify the values we may share? Greene: If that is true, then we really ought to be talking about what those values are. Chairperson: I will tell you how we got where we are. One of my initial questions was what was the notion of equality that Professor Hyneman's farmer had. I don't consider the notion of Professor Hyneman's farmer irrelevant to the maintenance of Revolutionary values. Professor Pole said the value of equality as seen by the farmer is a complex of assumptions and attitudes. Nonetheless, we should decide what equality is, and what equality must become. Notions of equality, fairness and justice are commonly held by people who relate in a negative w a y to what they see as distortions of their value system by the elite, authoritarian judicial system. Are there any general community concepts of equality and fairness that give rise to the tensions alluded to by Mr. Brown, and of which

Maintenance of Revolutionary Values

59

we are all aware as we look for community response to the decisions of the Court? Hyneman: Are you asking what do they demand? Chairperson: Yes. Separation of Powers Wisdom: We've been talking about Revolutionary values. The most important Revolutionary value was the contribution of the theory of separation of powers, and checks and balances. Though it came from a misunderstanding of the British system, it is a permanent value and persists today. I am on the whole optimistic, and one of the reasons is because of the doctrine of separation of powers. Not that these are watertight compartments, but when the President gets out of line, he's brought back into line. When the courts go too far, the courts are brought back into line. When Congress steps out of bounds, the courts have the power to say that it is out of bounds. This doctrine is truly revolutionary and is the great contribution our Constitution makes. Those other words are to some extent camp words of a political manifesto. Not that I do not believe in fairness, justice, liberty, equality and fraternity. But certainly the success we've had over 200 years has in large part been due to the separation of powers. I would never say that the judiciary is an elite, authoritarian group, nor the legislature. Wiggins: I don't see the courts as the ultimate elite by any means, but in the major cases involving the rights we have been talking about, you find the same names recurring on the briefs. There are probably several hundred people in our society who are impacting the courts with their points of view. It is not a majority. Some are seated in this room. I am not talking about it in a pejorative context. A narrow group of people—call them elite if you will—are applying their philosophical approaches to the problems of this country, and their views are gaining acceptance. Again, I don't wish to be critical. Chairperson: It shows how egalitarian we are that the use of the term "elite," even though it is merely descriptive rather than pejorative, makes us uncomfortable. Everyone of us around this table is a part of an elite in terms of what we're doing, in terms of our leadership roles. Pole: The separation of powers was a constitutional innovation. It is not a value; it's an instrument. It is important to keep clear the distinction between values and instruments for the implementation of values. In fact, the constitutional history of the United States is largely the history of the breaking down, the continuous infraction, of the separation of powers, which was never intended or conceived as operating in any exclusive, definitive sense. The separation of powers is a principle which has created at least as many problems as

60

Committee I

it has solved. M o s t people from the unitary countries are not quite as enamored of it. Chairperson: T h e value is a diffusion of power in the federal system, and as a consequence of the existence of sovereign legislatures in the several states, was both an organizing approach and a value. T h e power would not be concentrated in a single legislature, in a single executive, or indeed in a single system. T h i s value was a philosophical commitment to an organization of society. 7. S. Wright: W e should not mislead our European scholars. All these encomia that have been showered on the federal courts in particular, and the Supreme Court even more so, about being liberal, interested in human rights, individual rights, should be understood as limited in time. T h e W a r r e n Court is the only strongly liberal Court that was interested in human rights, in individual rights in our history. W e might have some differences of opinion about that. T h e present Court, as everyone agrees, is likewise interested. But there is no question that there is a cutting back from the W a r r e n Court. T h e pendulum swung to the left, if you will, under the W a r r e n Court; now it's swinging back a bit. But the history of our court system, particularly the federal court system, has been conservative, not active on behalf of individual rights, human rights. It has been the legislative branch over the years that has tried to protect individual rights and human rights. G o back to the question of slavery. It was the Congress that tried first to do something about slavery. It was the Supreme Court in the Dred Scott decision 1 3 which held the act unconstitutional, which brought on the Civil W a r . T h e n as we come to the turn o f the century, we have the Congress and the state legislatures trying to rid us of the sweatshops, trying to protect women's working rights, trying to prohibit child labor by passing legislation. In each one of those cases, the Supreme Court came along and held almost every one of them unconstitutional. W e should not bask in the light of all this glory that is being heaped on us. T h e federal courts' record has improved only in the last quarter century. Chairperson: Judge W r i g h t , why was it that state legislatures at the end of the 19th century, early 2 0 t h century, were able to deal with critical questions that concerned people? W h a t was the critical factor then? J. S. Wright: It was the Populist movement. T h e legislatures moved because of the excesses of our industrial society at the turn of the century; this gave birth to the Populist movement. T h i s had its influence on the legislatures, both state and federal. Motley: T h e legislatures may have been responding to the fact that we had merging groups in the society, largely immigrants, working in the factories, who represented a new political power. It may also be true that the Court began to respond to the demands of blacks for the same reason. By 1 9 5 4 , blacks were beginning to have some political

Maintenance of Revolutionary Values

61

influence. T h e y have much more now, but not sufficient political strength to wage their own battles. Even though it appears now that the Supreme Court is retreating from its activist role with respect to blacks, it may have to change again because of the situation we described earlier. T h e industrial cities are essentially black and the suburbs essentially white. But the suburbs are where the political power is, where the majority is. T h e majority is going to look out, as Congressman W i g g i n s said, for its own interests. T h e Court may be compelled once again, because of the inequality in the black political power versus white majority political power, to be the one institution in society that guards the rights of the political power minority, which is black.

Inequalities of Result Chairperson: T h e question still unresolved is what of the Revolutionary value of equality remains, if anything? And what are the operational imperatives, if any, with respect to the doctrine of equality as we see it at the present moment? And what are the implications of such imperatives, if it does still remain, with respect to liberty? Hyneman: I make a plea that we find time for at least the citation of certain principles and values other than equality and liberty. Chairperson: T h e papers seemed to focus on the present agitation around the concept of equality and the concept of the invasion of liberty by demands for equality. Around the table, over and over again, the discussants stated that the demand for equality meant a restriction upon liberty. Professor Pole pointed out that his listing contained concepts of equality that are not necessarily consistent one with the other. Would you elaborate? Pole: W h e n I suggested the categories, it was as a guide to thinking clearly about the possibilities contained in the subject. Equality of opportunity fairly obviously has always led to inequalities of result. And these inequalities of result are passed on and become hereditary inequalities. This has been obvious since the 1830s. Jefferson didn't believe for one single moment that people were endowed with equal attributes or equal abilities. W h e n he proposed his own selective plan of public education in the state of Virginia, a process of grade schools culminating in the University of Virginia, he wrote to a friend describing the process of selection of children for the grammar school system and said " s o m e twenty geniuses will perhaps be raked from the rubbish annually." T h a t roughly exhibits J e f ferson's idea of the distribution of natural abilities. W e ' v e been reminded that there are problems in the selection of the elite. Jefferson was trying to select the elite of natural talent by giving people the training needed to help to run the country's affairs. Incidentally, there is other evidence that he also, on the whole, believed they would be the children of the socially better-off class. W h a t J e f -

62

Committee

I

ferson did believe in was an equality of rights. That is what we derive from the Declaration of Independence, that there was an equality of rights. Greene: For citizens. Pole: Well, yes. There is an equality of rights for those among whom there is an equality of rights. I was asked a moment ago to say where we stand now. Fairly obviously, we are in the presence of a powerful movement for equality of outcome, starting incidentally with education. T h e way this started was with the Coleman Report of 1966. 1 4 Coleman said that a distinct polarization of equality of opportunity and equality of outcome has occurred. Equality of result is a means of measuring what has happened. If you are aiming to achieve equality of result, you are aiming to bring about a situation in which inequalities will be fairly distributed instead of unfairly distributed. Inequalities will exist anyway. If, however, equality of result is transmuted from being a means of general measurement into what is happening actually in specific cases, then you have a situation in which you have to look at individuals. You will then have to ask whether justice is being done to groups identifiable in a variety of ways, partly by skin pigmentation, partly by wealth or poverty, partly by religion. While these things have all happened in the past, the emphasis now is on race. There is a great discontent developing now, already quite visibly in some of the professions and particularly in the universities, about the equality of outcome, due to the feeling that people are being pressed forward without what appear to be the requisite professional qualifications. There is a great deal of massive government machinery behind it now. I'm quite sure this is the next item on the public policy agenda in the United States. Chairperson: I do want to raise one question. Mr. Greene said that the initial concept of equality was for citizens only. Is there a major change in the notion of equality? Has the concept of equality been generalized to a great degree now that makes citizenship irrelevant to the application of the doctrine of equality? Pole: There was no clear concept of United States citizenship until the Constitution; you can't find it before that. There were citizens of states from 1776 to 1787. Greene: What has changed is the expansion of the idea of who should be included in that term " m e n " in the Declaration of Independence, of those people who should have equal rights. Bill of Rights Tenner: W e should consider this in light of the Bill of Rights also. Though it came fifteen years after the Declaration of Independence, it was raised in the 1787 convention. T h e Bill of Rights speaks in terms of all citizens. The discussion troubles me in the sense that we are considering the Constitution as having been the work of twelve sepa-

Maintenance of Revolutionary Values

63

rate sovereign states who were then seeking solely to create a country and a union. The basic document was to bring these sovereign states together into a country, a union. That was accomplished by September 1787. Then the nagging issue of individual rights arose near the end of the convention. Madison raised it, and it was then assumed that the First Congress would undertake the Bill of Rights. Massachusetts refused to approve the Constitution until there was an absolute preservation of individual rights, and privacy, and what their concept of liberty was. You have to look at the legislatures or the people in each of the thirteen states to get a complete viewpoint. Chairperson: Mr. Gallagher suggested that the major objective was not equality, but unity. W e need to keep that in mind. Perhaps we could capsulize the meaning of equality into three headings: equality of esteem, equality before the law, and an acceptance of the basic humanity of the persons affected by the instrument. Is it fair to say that citizenship is no longer the basic determinant of the availability of the Revolutionary values? Have we moved from the concept of men, who are citizens by definition, to men and women who are human beings, subject to the laws of the United States? Has humanity won out over the parochialisms and special preferences that would have excluded blacks and women from consideration? Jenner: That is supported by Article IV, Section 2: " T h e citizens of each state shall be entitled to all privileges and immunities of citizens in the several states." Also, "No person shall be held to answer for a capital . . . crime," in the Fifth Amendment. No person. Chairperson: That's the key word. Jenner: And in criminal proceedings—Sixth Amendment—the "accused." I cannot accept the proposition that the framers, at least when they got to the Bill of Rights, were not thinking of people, that they were excluding the blacks and the nonpropertied. Greene: The Bill of Rights does not say that all people should have a right to participate in government, does it? All it says is that the government is limited in certain ways in acting upon the people who live within it. Jenner: I think it does. Otherwise, it's too narrow a viewpoint. Edwards: There are different people with different views who participated in writing the two documents, the Constitution and the Bill of Rights. In general, the haves of the then society wrote the Constitution, and those who were more or less aligned with the have-nots were the force among the antifederalists who resisted the Constitution sufficiently to secure the adoption of the Bill of Rights. You certainly can't say that Hamilton had the same view of the country, of the government, as Patrick Henry. W e make a mistake if we fail to recognize that after the adoption of the Constitution there was a bitter struggle over ratification. Some states held out. A number of states that ratified, including Virginia and Massachusetts, did so with the demand for a Bill of Rights as amendments to the Constitution. It wasn't Madison, really, who was the father of the Bill of

64

Committee

I

Rights. Madison was opposed to a Bill of Rights during the Constitutional Convention. The Bill of Rights was proposed to the Constitutional Convention by George Mason and was squarely rejected by a majority of delegates of all the states. The people in the convention were not representative of the totality of the people who ultimately participated in the decision-making at the state ratification conventions. Wiggins: W e overlook the fact that "we the people" did not refer to the blacks. The holding in the Dred Scott decision was not simply that blacks were not citizens; historically, blacks were not considered a part of "we the people." Therefore, Mr. Jenner has given an incorrect reading of the language of the Bill of Rights. Even though it refers to "people" or "persons" or the "accused," at the time of the writing of the Constitution and the Bill of Rights, blacks were not considered part of the "people." That is the importance of the first sentence of the 14th Amendment because it referred to "persons" and "citizens." The Bill of Rights refers to people, persons, and accused, but not citizens. Edwards: I agree. As we have noted, there were two major changes after the Constitution. One was the adoption of the Bill of Rights and the other was the adoption of the 13th, 14th, and 15th Amendments, which made the Bill of Rights applicable to blacks. The adoption of the women's suffrage vote provision finally made it applicable to all people in these United States. E. Wright: We have established something which I would hope is a consensus where constitutional history is concerned. If I may recall Edmund Burke, we must always guard against the search for abstractions and universals. Right through this discussion we were erecting abstractions and universals, seeking what we mean by equality, irrespective of time. Without dragging this endlessly back to 1776 and 1787, what strikes me is the repetition of phrases about greater and lesser, in order to establish " a more perfect union," not a perfect union; a more natural form of government, ar more perfect system of freedom, a more flourishing state of society. They weren't saying there is one universal abstraction for all time. They were creatures, as we are, of an age and circumstance. Our preoccupation with blacks or with women reflects the fact that we happen to have reached that state. Mr. Brown's preoccupation with the economic dimension is because maybe that's the next stage. We should avoid getting into the situation which the founding fathers did not themselves. They were aware that it's an endless system of growth. One of the points Jack Pole made which never got attention this morning was the phenomenon of growth which has eased the transition and made the whole story a steady progress. In other words, everything turns, again, in the Burkian phrase, on the "little minor circumstances" in the world you live in. We're in danger if we try to say our concerns are the same universals as those of the founding fathers.

Maintenance of Revolutionary Values

65

Equality of Opportunity Chairperson: I would like us to examine whether we all agree that equality of opportunity is a major component of this complex of concepts under equality. Wiggins: Not in historical terms. Equality of opportunity has become closely related to economic values rather than political values. Equality of opportunity is something that has become popular and supportable, a desirable goal in the last fifty years, perhaps, but not 200 years ago. The equality that our founding fathers were talking about was more of a political equality, equality before the law, equality in the eyes of government, not an economic or social equality, which now seems to be the meaning given to equality of opportunity. Chairperson: Congressman, if we all can concede that, which I am prepared to do, would you care to respond to the centrality of the concept of equality of opportunity in contemporary United States society? Is it now central? Wiggins: I think it's probably secondary. Chairperson: Secondary to what? Wiggins: Secondary to political equality. That is the name of the game. Chairperson: In Professor Pole's list he had equality of political power. Is that what you are talking about? Wiggins: If we mean by that equality before the law, equality in the treatment by government, yes, that's what I mean. Pole: I defined it in basic terms as one person, one vote in equal constituencies. Obviously, if powerful corporations can influence the way whole constituencies vote, or the way political decisions are made, through indirect access, it has a heavily modifying effect. Wiggins: One man, one vote does not hold up historically. Pole: No, no. It doesn't hold up until the 1960s. Wiggins: Yes, but if the question is whether or not that kind of equal representation is a fundamental historic definition of equality in this country, I would except to that. Chairperson: Most of us do not take issue about the limited meaning of some aspects of the concept of equality as enumerated by Professor Pole and expanded upon or limited by others. The question is what now is, in terms of legal doctrine, societal expectations and our understanding of the consequences of the two, the accepted content of the term "equality." Is equality of opportunity an imperative in contemporary society? Pole: Opportunity for what? Creenberg: Equality for what? Each of the equalities is perhaps a means of achieving some of the others. It may be that there is no meaningful equality unless there is equality across all or a large part of a range of various equalities. Equality of political opportunity is used to obtain economic opportunity. Wiggins: But this equality of opportunity has been expanded in modern times, as much through the commerce clause as by any of 66

Committee I

the provisions of the Bill of Rights. The notion that one can be denied the right of an equal chance by a private employer is repugnant to us, but you find little help in the Constitution. You've got to rely on a statute. Chairperson: That is the reason we're talking about Revolutionary values as they relate to contemporary and future society, isn't it? Creenberg: Perhaps to define the Constitution we have to look beyond the Constitution. There are some antitrust laws, and Title VII for example, which are not really part of the Constitution in any function and sense. Kahn-Freund: There is a conceptual difference between the meaning of equality in connection with opportunity, and in connection with what has been called position or situation or result. Equality of opportunity has never been achieved in any society, but it can conceivably be achieved. If one could think of a society in which there were real equality of opportunity, it would be a society without a lot of inheritance, with complete educational equality. But equality of position or result is incompatible with an organized society, because somebody must give orders that others must obey. You can never have an approximation of what is an equality of rewards. You cannot in any society, in any conceivable world, except perhaps among angels, have a society in which there is equality of position. Wiggins: You said it was incompatible with an orderly society. It's incompatible with a free society. It will impinge upon liberties because it is an unnatural state and can only be imposed upon a people by the force of law or government, forcing an unnatural result. Edwards: What would be the unnatural result? Wiggins: It is the natural order of things for some qualified people to achieve an inequality with their fellow citizens. And if we seek a social order in which each must come out in the same place, then that contravenes the natural order and can exist only if imposed upon people, and would then diminish their freedom. Edwards: I'd like to talk for a minute about this concept of equality of opportunity and where it starts. W e suppose in these discussions that everyone starts at the same starting line with the same blocks under his feet, when, in fact, that just is not so in our society. W e want to understand some of the most intricate problems of making our democracy work in the sense of having an educated populace, people who are capable of participating in running government and are capable of developing their own potential to the fullest. We have to look to some degree at the deprivations in the early stages of life. I served for four years as a judge of juvenile court in Wayne County, Michigan,—a jurisdiction of three million people— back in the 1950s. One of the cases involved a family brought in on negligence charges in relation to the parents. There were ten members of the family: eight children, two parents, both subnormal in intelligence. There had been nine, but the baby suffocated under the weight of the other children sleeping on top of it in one bed. The stench in the

Maintenance of Revolutionary Values

67

courtroom when that family was there was such that the window had to be opened on a cold winter day. All of the children, no matter what their ages, were retarded in their development. I jump from that to a picture of children in a poor school in Cincinnati, half Appalachian white, half black. Incidentally, poverty in these United States is still considerably more a white problem than a black problem in terms of total population. Children come to sit in classrooms of thirty-three persons, taught by one teacher. They come from a fantastically impoverished background. Compare that to the children whom we are acquainted with in our own families, sons and daughters of professors or lawyers, of professional people who have been read to from the cradle. These other children come from homes where there are no books. Compare children from secure families, where they are loved, cherished, where they are made to feel this is their world and where they sop up learning like a sponge sops up water, with the child who comes to school having spent the night in a home torn apart by marital quarrels or drunkenness. Something can be done about it. We could as a society apply the educational process in a meaningful way. I suggest to you that in areas of economic deprivation, teaching loads of thirty are a deprivation of opportunity in the most meaningful way known to man. If, when society first meets a child in an official capacity, it did so in a meaningful way with a teacher/pupil relationship of no more than one to fifteen, you might begin to approach the problem of the deprived children of our society. This might not only create a potential for their lives, but also might favorably affect the crime problem in these United States. The child who is an aggressive youngster in the third grade, who can't read and has already failed at home, failed in the community, now fails in school. If an introvert, he will stand in a corner and suck his thumb and end up in a mental hospital. If an extrovert, he has a good chance of ending up in a penitentiary because he has enough in him to want to fight the system that is defeating him. Here is where we could do something meaningful to implement the American concept of equality, and serve the well-being, peace and enrichment of our total society. E. Wright: That poses quite a new dilemma. By using equality in that way you reach the notion of justice. Fine. That's perfectly legitimate in terms of what the founding fathers may well have meant. But there is the alternative view, today, that the only way you can do that is by massive intervention. Bear in mind the Jeffersonian view that the sort of society he was assuming was a limited society, that government is best which governs least. We're in a 20th century world in which there is a basic contradiction. Ours is the only society that would deal with your problem, but you're suggesting that there has to be some form of socialist state in which there is an acceptance of a common cross which we all carry as suffering mankind. There would be other Jeffersonian Democrats who would say that part of freedom is a limited

68

Committee

I

state, and there is danger of the interventional state becoming in the end a positive menace to freedom. In other words, by talking thusly about equality, and reaching the notion of justice, we are really beginning to raise the fundamental question of how free can you be. I conclude that the only way to cope with your problem is by some denial of the very freedoms which I think the founding fathers were trying to enshrine. Chairperson: That may be at the crux of our discussion. Minimum Standards Edley: I don't fully agree with you that the consequences are so great. It seems clear to me that the system has already evolved to where things are done about things like that. Almost every family court or juvenile court in the country has the authority to intervene if the parents are indeed remiss in providing a certain minimum standard for the children. That minimum standard can pretty much be decided by the sitting judge. W e do the founding fathers an injustice in always looking at the republican form of government as a cop-out, as something to protect vested interests. As I see it, in fact, it answers the dilemma that Congressman Wiggins noted about the majoritarian point of view. I'm not sure that the electorate which sends a congressman to Washington is saying to the congressman, " W e want you to vote as we would vote if we were there." I think they are saying, " W e selected you, and we have faith in how you think, and your intelligence, and your ability to confront new problems and come up with wise solutions." So, it is truly a delegation of power to act in their behalf. If we're going to get the leadership out of Congress, that is how we do it. Equality deals with access and procedure rather than substance. Fortunately, it produces substance. For example, it is important in the civil rights field that blacks have an equal opportunity to purchase a home wherever they can afford to purchase that home without there being barriers. But that is procedural. It doesn't mean that if the right exists, they are going to exercise it. Similarly, people today have a sense of what equality means no matter what labels are put on it. They accept a differentiation among the people in society. They recognize that some are going to be elite. We challenge ourselves too hard when we suggest that there is something wrong in that. Theoretically, you can say that a congressman or a senator or a judge is not elite in the full sense of that term because they are there by agreement of the people. It is something that is bestowed upon them rather than something that they have been born to. The problem is that the police officer, whether he is directing traffic or apprehending criminals, does not see himself as the servant of the people. He will not say, "yes, sir," and "no, sir," to citizens. W e have allowed a situation to develop where he thinks that he is superior to citizens. He doesn't understand that his power is derived from those citizens he is ordering around.

Maintenance of Revolutionary Values

69

When you get into the commercial area, there is a more serious problem. Revolutionary values can support a society where there is a differentiation of wealth and of talent without our saying that it is the antithesis of an egalitarian type of society. That is the thread we have lost in not going far enough back to the philosophical underpinnings that really make the officials the servants of the people. I believe firmly in that. As long as the courts interpret it that way, we are in no danger of losing the Revolutionary values. The perception of fairness in the marketplace is an important ingredient of what we would label equality today, whether we call it equality of opportunity or not. Brown: The question of fairness as a fundamental underpinning of people's agreement to go on in society is something that has to be maintained. It is critical. You will not be surprised to hear that economic questions are at the core of many problems, such as how do you pay for classes of fifteen pupils. I sit on the state board of equalization in Colorado. How do you pay for schools? From property taxes. And what do you do when the tax base declines? Unless you can reach out to another constituency to subsidize the poor constituents, you can't do it. Edwards: You can't do it in Detroit. Brown: I can speak with certainty about only what I know. I know the taxpayers of Denver can't bear a higher burden. The current level of taxation is enough to encourage people to leave. Obviously every time someone leaves, the mill levy goes up because that's that much less tax base to pay for the school system. This then results in the educational inequality which we all presumably deplore. There is a widespread perception among people even without wealth that the opportunity for their children and their children's children to get wealth is very real, but that the virtually confiscatory inheritance taxes limit that. These are not simply the Rockefellers or other rich who say this. You can't go to a union meeting and talk about taxes and come out with any votes. That's my experience. Does it limit one's freedom to take care of that poor family? I presume that most people here would say that that family described by Judge Edwards is one which society has a responsibility to help and maintain, support and help pull out of that environment. There may be disagreement, but I suspect there is pretty widespread consensus in the society. I have a problem, however, when a court says Amish kids have to go to public schools. That gets very quickly to precisely the question that was raised by Professor Wright about an inadequate education because they're teaching something that is outdated and old-fashioned that we don't particularly like. Do we have a right as a society to take the children out of that environment? It applies to the Amish and to parochial school children, and to hippies who want to teach their kids at home. Chairperson: Aren't you saying that a society which begins to regulate such aspects of human life and experience as those mentioned by Judge Edwards tends to become procrustean in its application? The

70

Committee

I

difference between Judge Edwards' example and the Amish is very clear. Brown: Except, the court ordered them to go to public school. Chairperson: I understand that. But I happen to disagree with the notion that taking care of sick children, or children who are deprived of parents' love and concern, means that you automatically force the Amish into the public school system. Edwards: Those are two different things. Brown: But that is the way it works. Chairperson: Are you saying that that is the way it has to work? Brown: Theoretically, no; practically, yes. Chairperson: That is a valid point of view. The system, because of the nature of governmental intervention, is such that it cannot consider individual differences. Are we in agreement on that? Edley: Not quite. Wiggins: There is a difference between government imposing minimum standards and imposing a cap on the pursuit of excellence above a minimum standard. If there is inequality in a system which recognizes the floor, that might be antithetical to this notion of pure equality. I find nothing offensive at all in government establishing minimum standards below which we will not tolerate people to descend, but above which we tolerate them to rise consistent with their ability, their resources, or whatever. Brown: To equate minimum wage with minimum educational standards is to do exactly what I think happened. A minimum educational standard which says you have to know a certain amount about science, for instance, is a different set of value judgments from a minimum wage standard. Edwards: That's not what he is talking about. Congressman Wiggins is talking about a minimal standard of opportunity to get an education, not a minimal standard of what you achieve. Nobody is going to be able to control that. Edley: The juvenile case was a poor case to bring into this discussion. Edwards: My example was to argue for a commitment that government should provide a minimum standard. Motley: Minimum standard of what? Edwards: Education, probably economics. Edley: That's good; but I don't think the cases get in juvenile court for that purpose. At the turn of this century the juvenile court theory developed that the state is superior to the parent. That whole area raises the question whether the state should override the family. Legislation has been introduced in Congress during the past three or four years that gets deeply into that. Fortunately, it hasn't passed. W e have to be clear on what is the position of the court. You cannot use that as an example of government intervening into details which are inappropriate, because a special court was set up that was expected to deal with detailed family matters.

Maintenance of Revolutionary Values

71

Edwards: I picked that case as an example of the problem of minimal standards of education, and it would be applicable to everybody in the country.

Equality of Opportunity Motley: This discussion has pointed up the central definition of equality. What w e mean by equality, even now, is equality of opportunity. In the Brown case, if my memory serves me correctly, what we were seeking was equality of opportunity; as in cases after that involving job discrimination, and other things. If we're going to go beyond that and try to deal with questions raised by Judge Edwards, we're talking about something entirely different; that is, we're talking about whether it's the responsibility of government to provide for the general welfare of people, and see that they have a minimum standard of living, and meet a minimum standard of performance. Is it the business of government to care about these families? What does government do about those individuals? Doing something doesn't necessarily mean giving them equality. The discussion has reaffirmed in my mind that the only workable concept of equality today is equality of opportunity. That tends to get obfuscated by attempts to provide a remedy for past discrimination. When dealing with a case, for example, of race discrimination in the public school system in the South, the courts have required that boards of education take affirmative action to remedy the past discrimination. The Supreme Court said the same thing last week with respect to discrimination in employment. It's not equality that we're talking about at that point, but how you remedy the discrimination of the past. The government should not sanction any private barrier to whatever your pursuit in life might be. That's the definition of equality that we ought to seek to maintain. The only achievable equality is to make it possible for people to do whatever they want without artificial barriers such as race or sex or poverty. Chairperson: Judge Motley has articulated the equality of opportunity which to a large measure we have managed to achieve. She said earlier that we had come close to eliminating the legal barriers to the exercise of opportunity. But if I hear Mr. Brown and Judge Edwards correctly, they are saying that the achievement of this has enabled us to see conditions that interfere with the achievement of equality and yet do not have anything to do with race, sex, and evil activity by government. The removal of the barriers imposed by law, and the elimination of status predetermination, has indicated that some of the ills will not be dealt with. Motley: Look what has happened as a result of leveling all the legal barriers to equal opportunity in America for blacks. Blacks have moved up in the society. Of course, there are a lot of poor blacks, but the reality in 1976 is that there are two black communities: the black community that could take advantage of opportunity and moved up to the middle class, and the poor blacks left behind.

72

Committee

I

What can you do for them except to say that opportunities must be kept open. W e do have social programs designed to help people move out of the ghetto or to raise themselves educationally or economically. Those things probably ought to continue to be provided by the legislative body. One of their tasks, just like the court's task, is to provide justice in the society, to do something for people who are very poor. Chairperson: Is it essential to make equality of opportunity meaningful to people who are, let us say, unable because of past conditions to exercise it fully? Motley: Well, yes. The same thing applies to the white society. W e assume that whites don't have the same problem if they are poor. Yet, there are many white people who aren't going anywhere either. That's the reality we face in the United States today. We're beyond race in the sense that it's a class struggle. The people who are out there fighting today say, "Well, look at those black people going to Harvard and my son can't even go to the local junior college." It's an economic class struggle that we're going to face from now on. The Supreme Court is not ready to say that poor people are entitled to equal protection of the law with rich people the way they've said that black people are entitled to equal protection with white people. Greenberg: Doubtless, Judge Motley is correct. It is probably the dominant factor in any consideration of equality in the nation. But she has not had the opportunity to hear about many of the situations in which black people are being kept out of the exercise of many rights, as in employment and the perpetuation of discriminatory lines of seniority. Motley: Well, that's equality of opportunity. Greenberg: Yes, but that continues to persist on a racial basis in a great many situations. It is probably true that even during the days of segregation, probably the greatest problem facing the country was one of economic opportunity even with all the racial segregation that existed. A great deal of it has been leveled. But a sufficient amount of it persists and remains a significant problem. It is hard to know to what extent employment discrimination is a factor which perpetuates the economic inequality we've been talking about. Motley: I didn't mean to suggest that we had nothing left to do with respect to eliminating discrimination in employment. It all comes down to what equality we are talking about. We're still talking about equality of opportunity, as we pursue the leveling of employment barriers under Title VII and housing under Title VIII of the Civil Rights Act. I didn't mean to suggest that it's all over for blacks on this score. I thought we were trying to define whether there has been a change, whether there's some other kind of equality abroad. Professor Kelly injected an unfortunate term into this whole discussion when he used the term "enforceable equality." He was probably talking about the Court enforcing the rights, which it says blacks have, to equal opportunity in education and employment, housing,

Maintenance of Revolutionary Values

73

and so forth. Is that what he means by "enforceable equality?" If so, then it's not properly described. What we're really talking about is the Court finding an equitable solution to remedying past discrimination. Creenberg: If a university were to adopt an affirmative admissions policy, admitting black high school students who had SAT scores somewhat lower than what would be required of whites, in order to attain some substantial mixture of black students, would you call it equality of opportunity or equality of result? Motley: I would say that the university was trying to remedy past discrimination. There is nothing in the Constitution which prevents a state university, if that's what we're talking about, from remedying past discrimination. Greenberg: Then you might be meaning something other than what some people thought you meant. Many would call that equality of result, not equality of opportunity. Chairperson: No. Equality of result would be to graduate students who had not met the normal standard for graduation. Greenberg: I suggest we have a whole new discussion here. Motley: I want to set the record straight. I would not have advocated, at any point, admitting blacks to a state university—I'm talking about the state university because we're talking about the 14th Amendment—blacks whose scores were below that of whites. What happened was that some people in their enthusiasm injected this. If we had taken more time to select blacks who were even then qualified, they would have gone into these white institutions and their performance would have been substantially the same as whites. What happened was that many people reached beyond the black middle class into the ghetto in their enthusiasm to see results and the picture was distorted. A more careful selection would not have brought us some of the current results. Chairperson: Before proceeding, is there agreement that the present concept of equality includes equality of opportunity to the pursuit of happiness, to economic competition, to competition for political power and position, to competition for political influence, and equality of opportunity for status? Does anyone disagree with that as a base line? Constitutional Rights? Wiggins: Yes. I don't want to concede that all of those are constitutional rights. I will concede that the government may confer those rights statutorily, but I'm not prepared to say that all of them are based upon a constitutional right. Edwards: That's an important distinction. Pole: In other words, they're not subsumed under equal protection. Edwards: These things that we're talking about are things which may flow from the general concept of the Declaration of Independence. It's far and away the most Revolutionary document we have. The Declaration of Independence would move us in the direction of affirmative action on a whole host of different directions above what may

74

Committee

I

be f o u n d in the C o n s t i t u t i o n , Bill of Rights, 1 3 t h , 1 4 t h , a n d 15th Amendments. Chairperson: Both the papers agreed t h a t t h e concept of equality in the h i e r a r c h y of Revolutionary values w a s n e a r t h e b o t t o m . N o w we feel t h a t t h e concept of equality h a s b e e n moving u p a n d n o w h e a d s the list of values. Edwards: T h a t eliminates some history. Jefferson in writing the Declaration of Independence w a s mirroring t h o u g h t s of his age. T h e French Revolution came along on the heels of t h e American Revolution w i t h liberty, equality, fraternity. T h e r e were people w h o were t h i n k i n g a b o u t equality, a n d some of t h e f o u n d i n g f a t h e r s even h a d sense e n o u g h to look ahead to see that a state f o u n d e d on t h e p r i n ciple of equality couldn't live with slavery forever. M y basic point is this: we have a right to look to the C o n s t i t u t i o n f o r o u r inspiration as well as for our legal controls. In looking to it for inspiration, w e have a right to think of w h a t w e can do to m a k e ours a viable democratic society t h r o u g h legislative m e a n s as well as t h r o u g h the courts. I h a v e the feeling that some are saying t h a t the p r o b l e m of race discrimination h a s been licked in America. I w a n t to tell you t h a t w h e r e I live, a n d w h e r e I sit, that is not so. I c o n s t a n t l y see situations w h e r e power is being wielded, w h e r e there are n o blacks present at all. I see where black d e f e n d a n t s are having their cases decided in a c o u r t r o o m where there is not a black face anywhere. Just one black face m a k e s a difference. Motley: I d o n ' t believe that. Edwards: T h e n you d o n ' t k n o w white society as y o u should. W e have debated " s t o p and f r i s k " 1 5 b e f o r e the American Law Institute in a room in which there w a s not one black face present. " S t o p and f r i s k " w a s i m p o r t a n t , at t h e time it w a s being d e b a t e d , primarily to the black communities. W e have one black judge o u t of n i n e on our Court, so p e r h a p s t h a t ' s equality of something or other. But he can't be there all the time. W e d o n ' t have e n o u g h black lawyers to begin to meet the needs. Chairperson: Is there equality of o p p o r t u n i t y f o r black p e r s o n s in today's society to participate in the competition f o r p o w e r ? M r . W i g gins, you said that you didn't think t h a t w a s constitutionally protected. Wiggins; I question w h e t h e r it's a constitutional right that can be enforced. Wechsler: You're focusing on " r i g h t " w i t h o u t giving any articulation to w h a t its correlative is. If you are talking a b o u t state deprivation, then C o n g r e s s m a n W i g g i n s would n o t b e in d i s a g r e e m e n t with you. If you are talking a b o u t affirmative action on t h e p a r t of the g o v e r n m e n t or private people to p r o m o t e equality of o p p o r t u n i t y , then this line b e t w e e n constitutional dimension a n d merely a legislative target becomes very i m p o r t a n t . A f t e r all, is Title VII a constitutional m a n d a t e ? It's law, happily. Chairperson: Judge Motley suggested that equality of o p p o r t u n i t y

Maintenance of Revolutionary Values

75

was the removal of state-imposed barriers. There is a difference among us about whether that is the degree to which we wish to have the concept of equality of opportunity applied. Wechsler: Applied as a constitutional concept or as a social ideal? Chairperson: I have not limited it. W e have been talking about the maintenance of Revolutionary values, and focusing unfortunately on the judicial branch as the determiner of rights and implementer of so-called Revolutionary values: I have deliberately not stated whether equality of opportunity should be constitutionally enforceable, that is, enforceable through the application of asserted constitutional doctrine or whether it is a Revolutionary value that we believe requires extended application beyond what Connie Motley is talking about. We have to decide what the Revolutionary values are, which ones ought to be maintained, and whether they are sufficient. Kahn-Freund: The problem of equality of opportunity does not end, but begins, at the point where the state has removed barriers. The case put so eloquently by Judge Edwards is one I would have thought of as welfare rather than equality. In light of the discussion this is a real problem of equality of opportunity. These children and many other children just do not have the same equality of opportunity as children of other families. In fact, equality of opportunity of the child depends on his father. This calls for action. You may feel it calls for action in terms of your Revolutionary values. It calls for action in terms of the most elementary social ethics and in terms of the most elementary social expediency. If a society wishes to advance, yet it disadvantages some children as compared with others because of the economic position of parents, society damages itself. If this is true, then the state must take affirmative action. You may call this affirmative action a restriction of liberty. Perhaps it is. The introduction of the first factory legislation imposing safety standards on employers, imposing limits on hours of work, was a limitation of freedom. Every single step in the direction of social progress is a limitation of somebody's liberty to do something. I don't care whether you call this a socialist attitude or not. I am convinced that all discussions about equality of opportunity or equality of anything else are meaningless unless one faces the fact that a considerable restriction of so-called freedom, especially economic freedom, is a precondition for the achievement of anything that is worthy of the name of equality of opportunity. Equality of Result Wisdom: I am concerned that we are limiting the discussion to equality of opportunity. Equality of result may be described in terms of a remedy, but the effect is to produce an equality of position. For example, if we tell the state of Alabama that 20 percent of the police force must be black, that's not really equality of opportunity. And you have the same thing when the Supreme Court recognizes the

76

Committee

I

principle of seniority. I think that we are moving from equality of opportunity toward equality of position. I agree with Professor KahnFreund that a price has to be paid. Somebody has to suffer. It involves a balance of the interests of society against the liberties of the individual. Jenner: Judge Motley, in my judgment, was not saying that blacks had won the fight. Edwards: I didn't say that. Jenner: That's what I interpreted you to say. What she was saying was that they had won materially, but that it was necessary to keep fighting. She criticized those who push too hard, with which I agree, but that is a political judgment. All of this has constitutional underpinning. What is permissible under the Constitution? When we reach a point at which we can find it not permissible, then we must amend it. So there are two things that are involved: rights and permissibility. I agree with Professor Kahn-Freund that when you form a government of individual liberty, necessarily you say to yourself, "In order to afford the greatest possible liberty and aspiration for everybody, necessarily each of us must give up something." I have trouble with equal opportunity. We don't all have equal opportunities. W e do have aspirations and we're seeking to afford opportunity to realize these aspirations to the extent of our own mental and physical capabilities. Chairperson: Again, whatever we may consider to be the present limits of the concept of equality of opportunity, there is a surprising expression of a point of view that somewhere in the system there is a responsibility to provide some kind of basic, decent life for citizens. Is it a fair expression that somewhere in the society we have a responsibility? Pole: An obligation. Wiggins: Yes, a moral obligation of civilization. Chairperson: That is a point of view about the concept of equality; that is, equality below which nobody would be allowed to drop in our society. That is a significant extension of the concept of equality that existed at the beginning. W e have applied the equal protection doctrine to existing programs so that all persons shall be permitted to share equally. But we have stated no constitutional requirements of a minimum standard of decency. Is there anybody who wishes to take issue with that observation? Edley: May I ask what is your reference point when you use "equality"? Is it the Declaration of Independence? Chairperson: I don't have any reference point. Edley: I agree with the floor, but why do we get the floor from a discussion of equality of opportunity, rather than from the promotion of the general welfare, if we're talking about welfare-type matters? The Preamble might be a superior reference point, at least in the welfare area, although I assume that when you say "equality," you wouldn't limit it to welfare. You'd take it across the board.

Maintenance of Revolutionary Values

77

Growth and Progress Chairperson: It seems we have an underlying agreement here that in order to effectuate any concepts of equality we have to deal with the concern that certain kinds of economic disability impact negatively upon any concept of equality, and particularly upon any concept of equality of opportunity. My suggestion in the context of the discussion in which it arose is that we all agree about the direction in which the equality value takes us. Are you saying you don't want to do that? Edley: No, no, no. I was quibbling perhaps with you on the source for it, but not with the notion that there is a floor. W e might all differ as to what the minimal floor of decency and right is. E. Wright: I want to put in a footnote of qualification. I'd be happier if there were a document to which we put our names, spelled out in terms such as housing, social services, schooling, rather than a blanket statement of equality of opportunity. Chairperson: The term I used was a "floor of decent life" for its citizens. E. Wright: A floor of decent life, yes. I would accept that. This might only be possible—dare I say it—in an affluent society, assuming an economic growth, and moved by what might normally be called capitalist entrepreneurial forces. If you were to apply this concept to a non-growth society, we would be entering into a very different social order. Edley: I disagree with that. It goes too far. If there were never to be future growth in the United States, we would be left with a floor of minimum standard of living to maintain, perhaps lower for what I would call the wealthier class than what we are bestowing upon them now. But there still would be a floor. E. Wright: Yes, but the assumption of economic growth, the ease of economic growth, does remove the potential for revolutionary clash. Edley: We are dealing here with an organic document, and in the past we have always assumed that the principles and values evolved in an expansive way. They can also retreat. The beauty of keeping it at the generality stage is that a hundred years from now it is going to be different, hopefully, a higher standard of minimum decency. As long as we're dealing with the basic Constitution and keeping it general, legislatures and courts will always be in a position to determine it according to the external circumstances of society. Kahn-Freund: I am not convinced that economic growth is a precondition to the maintenance of the standard of decency you've been talking about. I am even less convinced that economic growth presupposes capitalist entrepreneurial activity. I am not in the least convinced that the pursuit of growth is a necessary condition for the pursuit of happiness. In fact, I am beginning to suspect that sometimes the pursuit of growth may be the opposite of the pursuit of happiness. Pole: The idea of growth is another of these ideas that require further refinement. There is going to continue to be technological inven-

78

Committee

I

tiveness and activity. It's quite possible that w e should h a v e to w o r k h a r d e r , more inventively, and ever m o r e ingeniously to remain a p proximately w h e r e we are, w i t h the d i f f u s i o n of c o n s u m e r goods a n d services that we already have. G r o w t h has m e a n t the ever-increasing diffusion of an ever-increasing quantity of c o n s u m e r goods. T h e r e is n o particular reason to b e lieve that that g r o w t h will go on forever. It's visibly r u n n i n g out as a m e a n s of giving satisfaction, as a m e a n s of keeping the e c o n o m y materially healthy. So a great deal of r e t h i n k i n g is required of w h a t is m e a n t by g r o w t h , w h a t g r o w t h is intended to serve, a n d w h a t are t h e services that do, in fact, give satisfaction. £. Wright: D o n ' t m i s u n d e r s t a n d me. I'm n o t for a m o m e n t saying that there is an absolute need f o r a capitalist system to m a i n t a i n this. I'm simply trying to register a p o i n t of t h e cost of w h a t w e are saying. O n c e we start to direct m i n i m u m s t a n d a r d s f o r a large u r b a n i z e d and suburbanized industrialized society, t h e cost is considerable. It does have the consequence of a larger f u n c t i o n a n d role f o r g o v e r n m e n t , of an intervening sort, t h a n w a s envisaged. Kahn-Freutid: If we were to go into this, we would h a v e to define not only growth, b u t also that most essential of all concepts, waste. Chairperson: W e can, with respect to this question, n o t e t h e obligation that society takes u p o n itself, b u t additionally t h e p r o b l e m s entailed in the a s s u m p t i o n of that obligation. O u r British colleagues are in the throes of trying to deal at this m o m e n t with exactly this question. Certainly this obligation is seen to carry p r o b l e m s of a m a g n i tude not yet c o m p r e h e n d e d . Pole: In contrast to w h a t you m e n t i o n e d , British society seems to have accepted the concept for a m u c h longer time t h a n A m e r i c a n society has that society h a s a n o t h e r obligation to its m e m b e r s , while American society h a s accepted t h e concept of equality m u c h longer than British society has. T h e y seem to be converging in a most curious way. Chairperson: T h a t highlights exactly our differences. 7. S. Wright: From w h a t in t h e C o n s t i t u t i o n does this obligation arise? Chairperson: I am not certain that it does arise in t h e C o n s t i t u t i o n . O u r charter today w a s to discuss the m a i n t e n a n c e of Revolutionary values, and one of the values w e identified is equality as modified and extended by society's experience. P a r t of t h a t value h a s been included in the 14th A m e n d m e n t , the equal protection concept, a n d p a r t of it is to be found in our sense of t h e direction in w h i c h the legislature a n d the executive o u g h t to go. Looking at the C o n s t i t u t i o n to find the application of Revolutionary values is u s e f u l f o r courts; b u t it is n o t the sole place to find t h e obligations or the place of implementation. Pole: You really can't get very f a r w i t h o u t the 14th A m e n d m e n t . Chairperson: Is there a n y t h i n g in the 14th A m e n d m e n t t h a t compels the assumption of this obligation to p r o v i d e a decent floor which C o n gressman Wiggins a n d I are talking a b o u t ?

Maintenance of R e v o l u t i o n a r y Values

79

J. S. Wright: This might arise out of the Preamble to the Constitution—to "insure domestic tranquility." Wisdom: And Article I, Section 8. Greene: And justice. J. S. Wright: I think the founders recognized that unless there is a floor, there is going to be no domestic tranquility. Chairperson: Did they really? 7. S. Wright: I think so. Chairperson: I think that's a comforting assumption, but I don't think that's true. /. S. Wright: Unhappy people might revolt, just as they are revolting, or revolted ten years before. Chairperson: What you have articulated might be true. But what you have subsumed under that was an obligation of society to provide a decent floor of life. If you ask me, it was contrary to the notion of individual exploitation of the environment. This is a major redirection of our notion of societal equality, societal responsibility. Wiggins: This is a political duty and not a constitutional one. Chairperson: W h y do we need to find a source in the Constitution for a commonly accepted value that we think emanates from the basic document? Greenberg: If you were talking about decided cases, you're not going to find it. If you were talking about credible theories, there have been a number of them. The courts, particularly the Supreme Court, as constituted now have shown no sign of adopting any such theory, but they are there. It has been said that Brown v. Board of Education can be interpreted to mean that there is a constitutional right to have an education, although Brown really dealt with equality of educational opportunity once such education is provided. Chairperson: Again this goes to what we talked about the Constitution being. It may be difficult to determine the source of the value. I find it an equality concept, but clearly it is one of the things that may very well activate the courts under the rubric of constitutional interpretation. Greenberg: A number of people have said that the courts are not the only organs that interpret the Constitution. One of the problems the courts face in dealing with this particular problem is the problem of distributive justice. The courts can't tax or appropriate money, but Congress can. Equal Rights Amendment Chairperson: T o what degree does equality of opportunity apply to the concerns of women for position and status? Let's focus on the Equal Rights Amendment. The notion of women's rights more than anything else asks for equality of position and status as opposed to equality of opportunity. 7. S. Wright: You're speaking about women like you and Judge Motley. You're not speaking about the traditional woman who is happy in the home with a family, being taken care of by a father fig-

80

Committee

I

ure as a husband. I don't think women uniformly want this. Pole: But the question is women having as much right as men to choose. 7. S. Wright: T h e difficulty is that there are many laws on the books in this country which provide special privileges for women which might dissolve with an ERA. Pole: The ERA case, as everybody knows, is that there should be protections for people who need to be protected. Many of these specific protections have, in fact, been used to keep women out of trades, professions or activities which men monopolized. There used to be laws in some states that women might not own a taproom or saloon; that only the wife or the daughter of the owner might serve at the bar. Protection should apply to the difficulty or danger of the work rather than to the sex of the individual. Nobody should be required to do work where it is dangerous without special precaution, without provisions for compensation. Nobody should be required, in the course of his or her work, to lift weights which that particular person can't lift. J. S. Wright: But the statute already covers that particular problem. Pole: So what is remaining? You brought up the question of women who wish to remain at home. No law is proposed that will rout women out of the home and force them into a profession. Motley: This is an argument to defeat the Equal Rights Amendment, that it would rout women out of the home. T h e amendment isn't directed at that at all. The thrust of the women's movement is that there should be no artificial barriers imposed on those women who desire to or must enter the professions or public life by the state or by custom or social policy. T h e amendment rails against these artificial barriers to women who do seek to participate in the mainstream of life. Wiggins: O f course, it goes beyond that. Chairperson: In what way? W e hear general statements of its consequences, which when taken to their specifics tend to melt. W e have a position paper which suggests that a limitation on liberties would result from adoption of the ERA. Wiggins: ERA is proposed as an amendment to the Constitution. Accordingly, I must believe that it is intended to work a change. T h e 14th Amendment of the Constitution, as interpreted by the current Court, prohibits invidious discrimination against women, puts them in a suspect class, much as race is now a suspect class. Greenberg: No case holds sex a suspect classification. 7. 5. Wright: The Congressman means that the statutes in effect give that position. Greenberg: I thought he said ERA. Wiggins. No, not ERA. I'm saying that current interpretations of the 14th Amendment have elevated sex to that protected and preferred position to which race has been quoted for some years. It's clear to me that the ERA is intended to go beyond 14th Amendment protections. If it were not, then we wouldn't need it at all.

Maintenance of Revolutionary Values

81

Chairperson: But the 14th Amendment has been interpreted as not including the elimination of classification by sex for invidious purposes. You may differ with what is invidious, but I would certainly adopt as among those the classification that prohibits a woman serving behind a bar. Wiggins: You can cite some of these fifty-year-old cases as a current reflection of judicial mores, but you're wrong. That is not the way the law is going. In any event, having sat through hearings, it was clear to me that the proponents of this amendment sought to write a new meaning of the word "equality" into the Constitution. I think we all know the proposed amendment says that equality of rights under the law should not be denied or abridged by any state or by the United States on account of sex. Since the word "equal" appears now in the Constitution and has an understood meaning, one of the very first questions developed in the hearing was whether or not the word "equality" in the Equal Rights Amendment was to be given that same definition as the word "equal" which appears in the 14th Amendment. And the proponents of the amendment, to a man and woman, agreed that it was not; that the meaning of the word "equality" in this new amendment was to mean sameness, identity of treatment under the law, "admitting of no exceptions." Accepting that, where does it lead us? It leads us down some irrational roads. The Congress may adopt a different standard for qualification of widows to benefit programs than widowers, and has done so historically. The proponents of ERA always say that the adoption of the amendment would elevate men to the preferred status of women. History suggests the contrary. Every time this issue is raised, it's the women who take the beating; that is, they drop to the level of the male standard. That's been true in the employment cases in the Ninth and other circuits. It's always a man who brings the case to court saying that he is being denied his rights under the law, and the courts agree, not by elevating the status of men to that preferred position of women, but by reducing the level of a woman's protection under the law. We shouldn't clutter up our Constitution with what is really no more than a ringing declaration of sexual equality, something that I support. The kind of equality that we recognize under the law for blacks, for whites, and for women does not mean identical treatment. That is, rich people need not be treated as poor people; young people need not be treated as old people. Motley: The current women's rights movement is like the black movement. Women are seeking a new definition of justice. I'm sure you realize that women are discriminated against in society. Wiggins: I agree, and the courts have been negligent in not correcting it. Chairperson: Courts or legislatures? Wiggins: The blame could be shared. Motley: The purpose of the amendment would be to redefine the

82

Committee

I

social situation; the impact of that would be far-reaching and immeasurable. You can't measure the impact of it on women's thinking either, particularly these women who oppose it. T h e amendment is necessary just as the 14th Amendment was necessary. M a y b e without the 14th Amendment, blacks might not have advanced to where they are now. You would have a statement, as with blacks, that women cannot be prevented from advancing in society and developing their skills to the fullest. Wiggins: But it goes beyond the rights of blacks. A case could be made for a constitutional statute conferring a special benefit upon blacks in a given case with the proper factual predicate for that statute. Under the E R A , you could never develop a case for a special benefit for women simply because the mandate of the amendment is equality or equal treatment, and by that I mean identity of treatment. Motley: I don't know what specific legislation you have in mind, but much of this protective legislation for women is outmoded. W e have a different economy from what we had when some of these laws were adopted. Laws that said women shouldn't be required to work at night, or more than eight hours a day, arose when women were given the lowest paid and most undesirable jobs. Wiggins: A particular case comes to mind because it happened right here during the ERA debate. As you know, there were sex discrimination cases going forward in the federal courts under Title VII of the Civil Rights Act. A major factory in my district employed many women. A case, decided in the Ninth Circuit, said that the state law which prohibited women working more than ten hours in one day, but did not make that prohibition applicable to men, was a violation not of the Constitution but a violation of the federal statute. T h a t happened right during the middle of the ERA debate, and apparently counsel for the corporation involved advised the corporate managers that they could no longer prevent women from working at night. T h e rule in this plant was that if a replacement, that is, the next shift, did not show up, the person was expected to work a double shift. It apparently was written into the labor contract in some way. So the employer put slips in all of the women's paychecks saying they would have to work an extra shift at night if the replacement didn't show up. This is a requirement now under recent interpretations of Title VII. Many of these women wrote me and said, " F o r God's sake, W i g gins, support the Equal Rights Amendment to protect us from this kind of discrimination, being forced to work at night. W e have to get home and cook dinner for our h u s b a n d s , " they said, " a n d pick up our children at school." Chairperson. I see the difference that statutes could make, because I am female. I am not shocked by that. I am not offended b y that. But I can see that this represents a problem that makes it difficult to get universal acceptance of the notion of equality. T h e special legislation was wrong when enacted, and is wrong now, because it does place special burdens on women who wish to work extra time, and prohibits

Maintenance of Revolutionary Values

83

men from taking advantage of opportunities to limit their employment. Since, as a woman lawyer, I don't get the benefit of any special conditions at all, I'm not sure that I see this as a necessary benefit. This points up the differences of perspective, certainly of women who have been working women by choice, as opposed to those by necessity, and are doing professional jobs. This is the source of the movement for equality. Equality of Result Let me summarize the discussion so far with respect to equality and suggest questions for the rest of our discussion. We have not laid to rest the question of equality of result, whether it is relevant and useful to determine whether this equality of result is in fact a modification of the concept of equality of opportunity. Secondly, assuming the validity of our definitions and points of view with respect to the nature of equality in the third century of the Revolution, what specific liberties are threatened by our notion of equality? If we are talking about equality of result, if it is not a shortrun remedial part of equality, what liberties that we wish to protect are threatened, if any? Finally, what Revolutionary values, in the relationship between government and the individual, if any, do we need to attend to and protect going into the third century of the Declaration of Independence? Several of you have raised the issue of privacy. Professor Pole referred to equality of result as a measure, and predicted that equality of result might become a requirement instead of a measure. That is something we ought to look at, especially in the context of remedial requirements versus long-run consequences and goals. 7. S. Wright: That's what the Supreme Court has been trying to do, not necessarily to achieve equality of result. In areas where there has been discrimination and segregation by law, the Supreme Court has tried to provide remedies. Even in the Denver case, 16 where there was no discrimination by statute, the Supreme Court did provide a rather large scale remedy. I think that's the end of it. Whether any kind of remedial assistance such as has been provided by the Court in the Charlotte-Mecklenburg case 17 or in the Denver case can achieve equality of result is certainly questionable. Seymour: Isn't that a question of whether the Court is beginning to recognize that there are limits to what judges can do? Some of these things are so complicated that they wouldn't have time for anything else. One example that comes to mind is the problem of state bar examinations. There is no doubt, certainly in New York and in other states, that the record on the bar examinations of black graduates is not as good as the record of white graduates. Yet there is not the slightest evidence that the bar examiners have any information as to the race of the people examined, or that the examinations are in any way constructed to bring about that result. It's evident that the result stems from the long absence of adequate training, going way back to pre-

84

Committee

1

college days, of many of the black law students. T h e only remedy for that is to change the educational background or decide that we are going to have two classes of lawyers in the United States, one qualified and one not qualified. Nobody would accept that. Wisdom: W e just had the same experience in Louisiana with our bar exams. T h e statistics showed that approximately 85 percent of all those who took the bar exams passed. T h e statistics also showed that the blacks who went to Tulane, LSU, Loyola, or good out-of-state law schools had the same percentage of success as whites. T h a t would lead me to the same conclusion that you came to, plus the fact that it was evident that the faculty in local predominantly black law schools is itself the product of many years of inadequate education. That should eventually be overcome by general improvement in education. Also, judges are not totally helpless. T h e whole doctrine of affirmative action originated as a result of judges trying to do something positive to reach an equality of result. W e required that the teachers represent in each school the same ratio that they represented in the general teaching population. Now, that's equality of position. Seymour: M y only point is, you couldn't change the result on the bar examinations by any direct action by the courts. Wisdom: No, there are situations that you just can't improve. But there are other situations where something can be done. The assignment of pupils is affirmative action that brings about a certain equality of position regardless of equality of opportunity. Setting Quotas Seymour: The current fad in the field of affirmative action is to set quotas. Wisdom: I think quotas are an example. But recognition of seniority rights, and the retroactive application of seniority rights, are other examples of that, too. A quota is an example of equality of position. Seymour: You don't find any difficulty with the idea of setting quotas? Wisdom: No, I don't. Chairperson: Should we not defuzz the difference between goals and quotas? I thought when you said " q u o t a " you meant a rigid assignment of a percentage of places to a defined class. Seymour: That's the way the quota is being used. Chairperson: Now, " g o a l " for some people means quota; for other people it means result. So are you saying that you accept " q u o t a " in the sense of a defined required number of persons from the defined class? Wisdom: I would accept both, depending on the situation. W h e n it comes to firemen or police, where there have been no blacks at all, then I would certainly accept a quota in the sense of requiring a fixed number of blacks and women to be employed. Chairperson: How long would you impose a requirement of meeting that quota? Wisdom: I would be willing to limit that and say that two blacks

Maintenance of Revolutionary Values

85

shall be hired for each white, let's say for sake of argument, until a 20 percent quota has been reached. Thereafter, you would hope that the presence of 20 percent blacks among police and firemen, depending on the black population, would establish a policy. Tenner: That's what the court did in Chicago with the police department.1* It set a quota of sixteen women, forty-two blacks and other minorities, and forty-two whites, to remain in effect until it sees a good faith effort to attain the ultimate goal of the general interspersion of blacks and women into the police department. It was the court's great regret that, because of the animosity of Mayor Daley and the city administration to submit any plan, the court had to resort to quotas. We all abhor quotas and try to avoid them. But where they are clearly necessary in order to remedy an ingrown pervasive situation, the courts must do something, and a resort to a temporary quota is proper. Seymour: Would that be equally feasible and desirable in connection with the university faculty? Tenner: I would say " n o " as an abstract. On the other hand, there may be faculty situations in particular colleges or universities where that is necessary. Wisdom: Especially as you go higher in the scale of the educational institutions. For example, you have a graduate who is as proud of Grambling's football team as a Harvard graduate may be proud of the Harvard faculty. They don't want to see Grambling integrated in such a set way that it will lose its football team. The same thing is true of persons who are proud of Southern University's great band. They are not anxious, by a quota system or merger or anything else, to lose the identity of the institution. While we can make a few general statements about equality, we should recognize that these statements do not have universal application. The bar examination problem brings out the serious situation we face in inadequate education, starting with kindergarten. Chairperson: What does that have to do with women, for example, on the faculty of the University of Pennsylvania? Wisdom: It doesn't necessarily have anything to do with it, except that it reduces the pool of adequately trained faculty. Greenberg: Poor training is more true of blacks than of women. The statistic that I was shocked to hear the other day is that Yale University has only two women professors. One might say that there was no discrimination in selecting someone other than a woman. But there has to be something else working there. Greene: If you want to hire full professors, you have a difficult time, because there are very few women, age thirty-five to fifty-five, who can be recruited at the rank of full professor. Not many women at that age went into academic life. Edley: While a court may order affirmative action, which might involve quotas to accomplish an immediate remedy, if the employer attempted to do it privately by admitting that he was guilty of a past pattern of discrimination, he might be placing himself in great jeopardy. Is this so?

86

Committee

I

Chairperson: The question is, will the institution suffer a detriment if it proceeds to institute procedures without court order? It becomes something of an admission, which can be used against the party. Greenberg: There are those who think that a white, or a male, or a black who is not employed can then say that he was discriminated against. For example, a California school system consulted our office, saying that in the current recession it wanted to lay off teachers. It had few blacks and wanted to lay them off in a ratio of the number of blacks on the faculty to the number of whites. If they did it by seniority, all the blacks would be laid off first. They undoubtedly could do what they wanted if they confessed to having engaged in racial discrimination in the past, and that this quota would be a remedial measure. But if they confessed to past discrimination, they would open themselves to lawsuits by blacks. And, if they didn't confess to it, they might open themselves up to lawsuits by whites. They face a dilemma because the law is not entirely clear. T w o Classes of Citizens? Chairperson: Are there other institutions of government that ought to intervene to establish a policy in this area, and are such policies desirable? Should someone order that ten percent of all the persons admitted to practice law be black? Seymour: That would mean you would have two classes of lawyers. Chairperson: That's right. ]. S. Wright: The quota business is troubling because of who's involved: law teachers, university professors, lawyers, doctors. These professions and individuals are not really fungible, as are police and firemen. Police and fireman are more susceptible to a quota remedy than lawyers, doctors and university teachers. The segregation through the years continues right on through the professions, even to the clients and the patients of a profession. If we lower standards to have black lawyers, those black lawyers will be serving black clients primarily, because black clients are not preferred clients of white lawyers. The same holds true of doctors. So when you set up separate qualifications for doctors and lawyers, you are consigning the blacks who would be their clients and their patients to second-class treatment. It applies to university professors as well. Also, black teachers are more comfortable in black schools. I'm not sure it's good for black students, just as I'm not sure that black patients ought to be, in effect, required to go only to black doctors. They ought to have the right to go to the doctor and the lawyer of their choice. Wisdom: I agree with everything Judge Wright has said, but I'm not sure that there shouldn't be some recognition of different problems. You run into a question that crosses racial lines; for example, the number of people in this country who may not be indigent and therefore are not eligible for legal aid, but also do not have enough money to hire lawyers or doctors. So far as the lawyers are concerned, many of those people have

Maintenance of Revolutionary Values

87

small problems. They want a will drawn, and it's a simple estate. Or they may have a simple personal injury suit. But they don't have access to lawyers. So I would be in favor, so far as the legal profession is concerned, of setting up two classes. Seymour: With the possibility arising of advertising by lawyers, you'll have flashing neon signs: "Upstairs, $10 first consultation," "Upstairs, $5 first consultation." Wisdom: You don't have to go as far as flashing neon signs. I would be in favor of lawyers soliciting or making known that they handle volume business for a reasonable figure. Chairperson: What you have suggested is that second-class citizens have second-class lawyers. Edley: Specific cases are very troublesome. But there are certain underlying values, liberties or rights that really are the controlling factors here. The individual college student ought to be able to go to the college of his choice and not be denied admission; a qualified person applying for a faculty, whether a woman or a black, is entitled to be considered as a qualified applicant for that job. These are principles that we have been applying in employment discrimination cases for two decades. No one is saying that a faculty has to hire a person who is not qualified. Fairness within the system requires the black, the woman and other eligible people to be considered in a competitive fashion without leaning over backwards to admit them. Our values do not require us to get to the point of two classes of lawyers, unless we can show there has been a pattern of discrimination to justify it. Seymour: Would you address your value analysis to the problem of bar examinations? Edley: There is no difference between a bar examination and any other qualifying examination given to enter a job or a profession. The case law developing on that relates to whether or not the examination is relevant. We don't really know what training produces the good lawyers. There are studies to indicate that you can predict how a certain type of student, born to the upper middle class, will perform on the college entrance examination board and the law school admission test. It is possible that the bar examination is not the most relevant examination for determining whether a person will be the best practicing lawyer. There should not be two classes; we shouldn't lean over backwards to admit blacks on a disqualifying basis. With regard to the black school issue, it seems clear that white students who want to attend these schools must be admitted; that where federal funds are involved, there can be no racial discrimination; that we must follow the constitutional principles that apply and let the future take care of itself. We know that there are certain underprivileged people in this society who have not acquired an adequate education. That gets to the more fundamental question: what is someone's right to an education? We haven't dealt with that value. Kahn-Freund: It's quite obvious if we attempt to change social

88

Committee

I

mores by law, this problem is put particularly sharply here in the United States with regard to racial differences. Edwards. And in England. Kahn-Freund: T h e problem is there in England, too, in connection with social differences. T h e child who comes from a cultured home and has known books all his life is institutionally privileged compared with the child who comes from a humble home without any intellectual interests. In my own academic experience this has been a problem of overwhelming importance. In your assessment of students, how do you make up for this in-built distinction? This cannot be changed by law, only by a gradual change of mores. T h e curse of history, whether it is the great tragedy of the black race in the United States or the social history of a class-ridden country like England, cannot be removed by a pen stroke of the legislature or the judge, although both the legislature and the judge should contribute. M a y I give you another illustration to do with sex discrimination? W e have had in England on the statute books since 1 9 7 0 the Equal Pay Act, which was initiated by Barbara Castle, then Minister of Labour. It provides not just equal pay for equal work, but equal pay for work of equal value, which is a different proposition. W o m e n were always given a less well-paid job. Jobs regularly done by women were systematically rated at lower levels. In order to implement this law, employers had to embark upon some sort of job evaluation. W e have now a system under which the court must insist on the positive affirmative action of job evaluation in order to get an assessment of the socalled value of work. I am only giving this as an example—I don't believe at the moment that it has any actual relevance in the labor law of the United S t a t e s — to show how nothing can be achieved simply by saying, " W e l l , equal pay for equal w o r k , " without those concerned being forced to take affirmative action. Chairperson: I'm not sure we have looked at affirmative action in quite the same way with blacks as with women. W e have looked at it with respect to qualifying examinations which have been used in an effort to determine who shall be employed and who shall not be employed. T h e law now is that the examination must bear some relevance to the task to be performed. So there has been a need to evaluate the test, the content of the job. Greenberg: In some tobacco cases, it was seen how companies will maintain different plants at different locations. W h e r e the plant is all or predominantly black, a job will be called one thing and paid at a lower rate. An industrial engineer evaluating it would look at the j o b at a white plant and say, " I t ' s really the same job, essentially the same kind of operation. T h e y have to be paid at the same rate." Seymour: There are problems that lend themselves to judicial actions, problems that lend themselves to administrative actions, and then problems that don't lend themselves to actions of either sort.

Maintenance of Revolutionary Values

89

Chairperson: I was a bar examiner who had once been a professor in a law school whose student body ranged from very good to extraordinarily poor. As bar examiner, I was never able to ascertain who the blacks were and who the whites were. Subsequent to every bar examination I came to know some of the people who had failed. What interested me was that the people who failed, whom I knew and had taught, were of two types: people who had had an extraordinary situation develop before the bar examination, failed it, but passed the next time. A woman who had a baby a month before; a man who had become emotionally disturbed. The others were people I would have predicted in the second year were going to have great difficulty finishing law school and qualifying. We have to find out the academic history of the people who fail the bar examination. If they are high risk to begin with, I would not consider it a failure that the risk eventuated. Remedial action, it seems to me, is at the law school admissions point. Does uniformity of result mean once he is admitted, he must be graduated? Some white teachers, because they want to avoid dealing frontally with the issue of risk, do indeed graduate law students and medical students, knowing that they are going to be cut down later. Where does the remedial action stop? At what point do courts, policy-makers and others decide that the affirmative action to insure equal opportunity ceases? Court Action Edwards: The easiest thing to ask judges to do is not to take jurisdiction, to say, "This is a legislative problem." It makes for less work. These cases are so agonizingly difficult that nobody I know in the federal judiciary looks on having to deal with a race or sex discrimination problem with any joy. Courts act when they are confronted by facts that just are impossible to live with. We are going to have to continue basically in that fashion. These problems could be handled elsewhere. The school problem never had to be in the courts. It could have been handled by the states and the federal government. Seymour: The courts really, Judge, made distinctions between de jure segregation and de facto segregation. Now they are stuck with the problem of de facto segregation, which reaches way beyond the school problem and into the whole suburban problem. Can the courts deal with all that? Edwards: Let's go back to the bar examination. I have yet to see anybody establish that the bar examinations have been skewed deliberately to exclude blacks. There has been no need for any such thing. In fact, few blacks have been getting to the bar examinations. But, that's not the situation in instances where the courts have applied something approaching quotas. It's intransigent, historic, deepseated, deliberate discrimination that the courts have had to grapple with. You just can't persuade me that the exclusion of blacks from police

90

Committee

I

forces around the country has the same basis as the fact that, percentagewise, black students don't pass bar examinations with the same celerity as white students. I spent two years breaking the race barriers in the Detroit police department. They had such a limited number of black officers that there weren't enough to break into all the promotion classifications. The methodology of exclusion was simply incredible. And the truth of the matter is that I never managed to get an honest job done on that score in the two years that I was there. Since then there has been a court order in the Detroit police department, and it has succeeded in achieving some considerable difference. I reject quotas as a general principle. I don't see how, under our American system of government and under the variety of populations and groups and religions, we could begin to administer a society which employed quotas as a principle. I would not use quotas except where there was a record of intransigent discrimination on a race or sex basis which was incurable by any other means. W h e n you have established a record of such discrimination, using figures as a guide to when affirmative action must start, and when it has performed satisfactorily, is a quite different thing from saying that law schools, bars, police departments shall have certain quotas. I don't accept the idea of two classes of lawyers, at least not in relation to a higher and a lower class. The remedy should be affirmative action in enriching the education, either at the law school level, or supplemental education after the bar failure. Wisdom: When the desegregation of schools started, we tried one grade at a time. Even then, the assignments were subject to the pupil placement laws. These were devices, or shams, which set up twenty criteria for assignment of pupils, any one of which could be used as an excuse not to assign a black pupil to a school. Then we had socalled freedom of choice, but for various reasons that didn't work. So, experience showed that the only way we were going to be able to integrate the public schools was by the mandatory assignment of students. That necessarily involved some busing. There was nothing to do except assign students. And we did not call them quotas. Greenberg: School desegregation did not begin in earnest until about 1969 in the Green v. New Kent case, 19 in which the court said, "It's got to work, and you can just pick students and assign them by race." The fact is, if you have a measurable requirement to which you must live up, then you are going to get some results. If you don't, and you have a defendant or an institution that wants to evade, the opportunities for evasion are infinite. Reverse Discrimination Seymour: I have heard a good deal about quotas in connection with educational institutions. The suggestion is made that when the em-

Maintenance of Revolutionary Values

91

ployer has had a terrible record on dealing with discrimination, he has forfeited his right to complain about being directed to have quotas. I see that a court is challenged to apply a kind of a penalty to his past behavior. But I can't overlook the fact that if we are dealing with something as subtle as an educational institution, or perhaps with somebody who from the age of six wanted to be a policeman, when he is turned away because of a quota of past discrimination, his sense of inequality is the same as those who were discriminated against before. Maybe that's the penalty we have to pay in society for the past. But it ought not to be overlooked that it does operate that way. Chairperson: Is he in a different position than if all of the persons occupying the position he sought were white? Suppose he had wanted to be a policeman since age six. He applies for a job and there is no opening because they are only employing blacks for this job. Seymour: I think the social consequences of that judicially-declared discrimination may be quite serious in the society. Edley: There is also a converse problem. There are fully qualified blacks who have been turned down for positions. When I finished law school, most of the major law firms were not hiring black lawyers. There are tens of thousands of blacks in the society who have had to live with the same kind of rejection. Take the De Funis case, 20 for example. There is no remedy for this, as I see it. Seymour: Consider it as a man would who was told, " W e are just hiring women this month under the judge's orders." Edley: The frustration of that individual is counterbalanced. If a qualified black had to live with the injustice wrought by the system, perhaps some others will have to also. The tragedy is that whites who benefited from the preference over a qualified black and others are the ones who should be paying. E. Wright: It does seem to me education is a continuing process. And if there is appalling disadvantage among poor whites as well as many blacks, then the only way is to give them continuing help. Greenberg: Whitney Seymour is correct that the white who is turned away feels terrible about it, but the black who is turned away also feels terrible about it. That leaves you nowhere. What should you do about it? We have discussed that a quota in many situations is the only way. His argument has force in that there are ten times as many whites as blacks. And witnessing the busing backlash, if enough preference is given to blacks over whites, it will create repercussions that will be counter-productive. Wisdom: It has philosophical force in terms of John Stuart Mill's theory of the rights of individuals.21 Chairperson: Now, that's where I hope we are going to end up, the liberty of individuals. Wisdom: There is no question about it. We have to pay a price to get this equality of position. Chairperson: We have a black and a white, and each seeks the exercise of the same liberty. Are you saying that, given the history of

92

Committee

I

segregation, the state probably ought to remain neutral? Or are you saying that they may have to reinforce the liberty of one as against the other? Wisdom: No, I'm saying just the reverse; that we may have to go through an agonizing period when some individual rights will have to suffer. E. Wright: I would have thought you could, if you used the John Stuart Mill parallel, say that it's a legitimate extension of Jeffersonian ideas of liberty, to say that by the mid-19th century anyway, British liberalism was reaching a point where they were saying there is a need for intervention by the state, or it's the state's function to be the hinderer of hindrances to the good life or the particular things that only the state can deal with, but to thereafter leave the state open. Role of Institutions Pole: This has been an extraordinarily interesting, but in some ways inherently inconclusive, argument because there is in fact no one answer. W e have to look at the social function and purpose of employment and institution in each case. There is a broad distinction between fairly straightforward jobs which anybody could do, given the requisite training, and jobs which require exceptional skills. There is a limited pool in society of people who can do some of these jobs. Ronald Dworkin argued in an article on the De Funis case, which appeared several months ago in the New York Review,22 that De Funis did not have a right to go to law school. The article is actually called " T h e Right to Go to Law School." In fact, nobody has the right to go to law school. The law school has a duty to make certain types of decisions about the social service it performs. There is a marginal area within which different values have to be balanced against each other. Different institutions serve society in different ways. The police force and the fire brigade serve society in ways that may be very significantly reflected in their actual social composition. On the other hand, if you are trying to split a small substance like the atom, you don't presumably employ a nuclear physicist on the basis of his social background. We began this discussion with an extremely provocative remark about universities being privileged sanctuaries of discrimination. It is important to realize—and I must say this is frequently overlooked in Parliament—that one of the primary reasons for the existence of universities is the advancement of research, scientific knowledge and scholarship. They are in fact the main depositories that society has. Most of us think that the best universities are places where research and teaching are also done. The risk you take if you separate them is to have entirely separate research institutions, as exist in the Soviet Union—not the best way to communicate the advancement of knowledge to students. This does inherently make universities places that are to a large extent the judges of their own function. It is easy to see that universities have also reflected social values, which most of us reject, in many of

Maintenance of Revolutionary Values

93

their policies. However, it is dangerous to insist, in the case of universities, on conformity to visible measurement standards. If you do that, and if you make mistakes, the consequence is something like forty years of teaching and forty years of research by somebody of inferior abilities. That person is not only blocking access to the job of the other people who are of possibly superior abilities, but is blocking it for the next thirty or forty years. Edley: It's not his fault if you can't fire the incompetent later. Pole: This gets entangled with questions of tenure which are also very important aspects of academic freedom. Edley: But not necessarily to society at large. Chairperson: Don't you have an underlying assumption here that may not be provable: that there are minority people who are qualified for employment on police forces, but there are not enough persons with academic qualifications to make it worth requiring the institution to search more carefully for them? Pole: Institutions in this country are now required to search very carefully and to justify their results. On the whole, that is doing no harm. Chairperson: Then you do not object to the application of these standards to higher education? Pole: It's almost certainly true, for sociological reasons, that over several years there will be a short supply. And during that period of short supply, it is extremely dangerous to the integrity and standards of the profession itself, and, therefore, for the service it can render to the community, if you insist on the university's making appointments which are below its standards. No less important is equality of esteem. Nothing is more damaging to the esteem in which a particular group is held, and eventually in which it holds itself, than a knowledge that it is connected with an inferior standard of performance, and which assumes that only a certain class of people will bother to be taught by such people. There have been offenses in the past. The gentleman's C at Harvard, which I am told only came to an end as recently as 1949, was disgraceful. But universities have become sensitized to their own professional integrity. Given a heightened social consciousness, which has been brought about by political pressures, the institution must remain the final judge. Chairperson: The question is, who becomes the judge of the degree to which that heightened social pressure— Greene: Searching is one thing, but you are not suggesting that any of these judges should tell me what person I should hire as a historian, are you? Creenberg: Why not? Greene: There is a good reason. I'm better able to make that choice. Greenberg: There are some good reasons why not, and there are some reasons why yes. I'm as much in favor of high standards as anyone. But we delude ourselves if we think that the bar standards are as

94

Committee

I

high as among our colleagues. A large number of lawyers, perhaps most lawyers, are not very competent. Seymour: There are several hundred law schools in California. Creenberg: Many lawyers end up being high-class real estate agents. That, perhaps, calls for a réévaluation of the professions. But a few elite universities, and that portion of the bar that gets invited to conferences like this, have some sense among them that everybody else is like that. They are not. Seymour: You tolerate a two-tiered bar? Greenberg: There is a two-tiered bar. Seymour: A bar for the poor people and a bar for the rich. Greenberg: That's precisely what exists now. I don't like it, but it does exist right now. There are store-front lawyers. Wisdom: And there are people who have no access at all because they don't have enough money. Greenberg: Not only that. I have no doubt that someone graduating from any law school in America today, who has been admitted under the stringent standards they now have, but who fails the bar examination, is likely to be more competent than 25 percent of the people now practicing law. Wisdom: Let me add, in the state of Louisiana there are 6,000 lawyers, but only fifty black lawyers. Greenberg: When I started practicing law, in Louisiana there was only one black lawyer, one in Georgia, and one in Delaware. Edwards: I don't know about Louisiana. But in Michigan the percentage of blacks who failed the bar may be higher than the percentage of whites who failed the bar. But few of them fail on their second or third effort. A small minority are actually excluded in the state I am most familiar with. Now, that may not be true in Louisiana. Wisdom: No. It's not true in Louisiana. The ones who fail continue to fail. Edwards: Then they should never have completed law school. Jenner: That's certainly true throughout the country. Edwards: O u r four law schools have a high record of success at the bar. College Recruitment Hyneman: I served on what we called at my university the Equal Opportunity for Education Committee for a few years in the early 1960s. O u r problem was getting blacks into Indiana University. We were number one in the Big Ten in the percentage of blacks in the total enrollment. Yet we had something like only 200 blacks in the total undergraduate enrollment of 16,000. We quickly gave up the idea that we were going to get bright blacks, highly recommended by their teachers, to come to Indiana University. They were going to Harvard, Williams, Haverford and so on. W e could however lower the requirements of an intellectual or capa-

Maintenance of Revolutionary Values

95

bility character. So we did. W e talked to them, we sent the recruiters, put on the pressure and got more black students down there. Nine freshmen from one high school all failed in spite of the fact that we paid for graduate student tutoring. T h e y are out because they cannot be kept under any grade requirements we were willing to live with. W h y did they fail? T h e y were too unhappy. There was not a spot in Bloomington, Indiana, then a town of probably 25,000, that played the kind of music the black students wanted to hear. At the same time they were surviving and graduating from Evansville College, and in Terre Haute at Indiana State University, and not because the expectations of the faculty there were less. Terre Haute has its own night spots. Blacks can go there and find their music. Evansville, a city of 150,000, long had a considerable black population, which Bloomington never had. So the students feel at home there Clearly something had to be done at Indiana University to obtain black students. But I don't relate that to the notion of equality. Chairperson: Your case is this: you have an institution which forty years ago perhaps discriminated against black people and did not admit them. At a date to be ascertained, you made a decision to make an effort to secure a number of black students to correct a past discrimination and a present absence of blacks. You brought blacks in. They were physically and factually present. I'm assuming these are the facts. Hyneman: This is the condition. Chairperson: But for no reason of misbehavior or failure, or omission by the institution or its agents, the blacks decided they did not wish to avail themselves of the institution's offerings. Query: is there a basis for a court to require you to integrate? Is there a basis for an administrative agent to require you to find black students and bring them there? Should there be a policy that says, regardless of the facts, you are culpable because you do not have blacks? Hyneman: You are talking today with attention to immediate adjustments, without considering what would be a just society in fifty years. T h e courts, the judges, the lawyers, by verbalizing it in terms of equality, are complicating communication, and fixing thought patterns that are creating the next generation's problems. Wisdom: Would you settle for an approximation of a just society fifty years from now without making an effort to get blacks into the University of Indiana today? Hyneman: As of right now I would, certainly. I would first inquire what is the reaction of the black community. Would they rather be at Indiana University or somewhere else? Edwards: How are you going to define the black community? Hyneman: T h a t is difficult. Edwards: That's like defining the white community. Hyneman: It may be the black elite, as I have been told by more than one black. Chairperson: Let me ask if you are rejecting the individualistic notion of equality, and if you have moved to a group determination of the application of principles of justice. W h e n you say you are going to

96

Committee

I

the black community, you are dealing with a group concept, not with the concept of the single student and the institution confronting each other. Pole: I suggested earlier that the idea of equality can be reduced for practical purposes to the idea of interchangeability. What is involved is freedom of access on an-individual basis. Other things being equal, individual blacks and individual whites, Jews, gentiles, Catholics, Protestants, could achieve the same things and fulfill comparable ambitions. That is the formulation. Hyneman: Well I don't know. If you are thinking in terms of goal, my goal has always been that conception of race shall cease. I've had to fight the blacks on that. The goal must be incorporation of the black into the total society where consciousness of race would disappear. And I entertain the notion that it will be accomplished only by intermarriage. Freedom of Choice Chairperson: Before we move, let me say that it is clear that the issue of race in American concepts of equality, and concern for the future, is as central to what we ought to do in the next 100 years as it was to what we decided to do in the first 200 years. Some of the compromises of the Constitution had hidden within them a failure to deal with the issue of race and slavery. W e here have had inconsistent, mutually incompatible, solutions for the problem of movement of blacks into a condition of equality, because of our perception of the cost to institutions affected and the cost to the nonblack individuals who appear to be affected. That might take us into the question of the liberties that we see being affected by our concern for equality, particularly of the black person in this country. Is one of the requirements of liberty that some institutions must be left to decide for themselves the way and the degree to which they will be amenable to the demand for equality for certain groups? Edwards: The same thing will be demanded by the General Motors Corporation and the bricklayers' union. Chairperson: Underneath the question are a series of complexities for higher education. Professor Greene has said you cannot tell the university what history professor to employ. Professor Pole said something similar about the special mission of the research institution, and the requirement that it make its own judgments with respect to qualifications of persons, regardless of the social imperatives of equality. The reason I think we need to push this is that earlier Mr. Brown questioned the impact of the Supreme Court retroactive seniority rights position, not with respect to the black remedy, but with respect to its placing the burden on the lower part of the economic and social order. We seem to be saying that regardless of the importance, there are differences in the nature of jobs and the institutions in society. Some

Maintenance of Revolutionary Values

97

jobs can be done without a great deal of training, and there you can apply quotas. But, there are others where you cannot apply quotas. There is a perception, certainly in the United States, that insofar as affirmative action is a penalty, the penalty is being borne by the nonelites in society while the elites—universities, professions, shareholders—do not share the burden of the imposition of the penalty. Would you agree that this is as it should be? Are there reasons of liberty, of value, that make it necessary? Greene: It has nothing whatever to do with liberty; it has a great deal to do with competence and capacity for judgment. In fact, the courts and the legislature should insist that educational institutions not go out seeking people in patently discriminatory frames of mind. They should consider any competent applicant no matter what the person's condition. If my dean had said to me when I was chairman of my department, " I want some role in deciding who this historian is going to b e , " I would have laughed at him. If some judge said that to me, I might have to accept it, but I would find it infinitely more laughable. Edwards: Business agents of building trades have been laughing at courts on this score with exactly the same rationale over the years. Greene: It is a very different situation. Edwards: You should read their briefs about how vastly important is their expertise in making selections for mechanics and plumbers. You would begin to find yourself in their words. There are areas where the courts are going to have to judge whether there has been discrimination. But I hear the suggestion that at some high levels of professional standing there are situations that are exempt from constitutional requirements. I do not buy that. Tenner: I don't either. Seymour: There are violations of the requirements for equality which can only be cured by the imposition of judicial or other remedies which enforce a departure from the past and an acceptance and adherence to the rule in the future. But not every situation lends itself to that kind of rather heavyhanded treatment. In the imposition of the heavyhanded treatment—the requirement that you hire 42 percent blacks, 42 percent whites, and 8 percent women—it is important to have in mind whether the penalties fall in an equitable way. Thus, if the effect of the particular requirement is to have the whole weight of it fall upon the people least able to bear it, then it ought to be reformed so that it falls somewhat differently. If the present perception of all these problems by the courts, implemented b y congressional action, is adequate to deal with the problem, then no constitutional amendment to add to existing authorities seems to be necessary. One other aspect of the penalty thing troubles me. Not only does the penalty fall on the person lowest down on the ladder, but where the corporation is subject to astronomical damages for the fact that it did not hire blacks forty years ago, that, too, falls on the people who really are least able to bear it; to wit, the stockholders. There are

98

Committee I

stockholders who ought not to be required to contribute for forty years of discrimination. Greenberg: It was just twelve years ago that the Civil Rights Act was passed. Seymour: What I am saying is that with a new civil rights act, the full impact is only now being felt and understood. To impose penalties for the fact that the percentage of blacks in the plants didn't reflect the black percentage of the population could result in a class action and recovery of millions of dollars, a burden ultimately borne by the stockholders. That seems to be a surprising and anomalous result. Greenberg: But that's never happened. Wisdom: The Supreme Court required particular individuals to prove they had been discriminated against. Greenberg: They had to have some proof, and that recast the burden. Edwards: They have to mitigate damages. Greenberg: You have a two-year statute of limitations. There is no such thing as you describe. Seymour: I know of a case involving a different kind of discrimination, not on the grounds of race where apparently the damages are astronomical. Greenberg: There are two kinds of cases: the hiring case and the promotion case. In the hiring case, you would have to find all those people who were turned away, close to impossible if you are talking about twelve years ago. So the damages would be quite slight because you have a small identifiable class. Chairperson: I find the use of the term "penalty," rather than "remedy," interesting because it is your penalty, my remedy. The real question has been raised about whether the application of the concept of equality, as it applies to remedying the consequences of racial discrimination, is such that we should consider the burdens to either corporations or potentially to universities. Governmental Intervention Can we resolve the issue of the degree to which government should intervene in the application of the Revolutionary value of equality? Should we try to continue? Or should we just state that we question how much of a burden the society should be required to pay? £. Wright: I get an uneasy feeling we are trying here constantly to deal with a specific problem, and raising all sorts of conscientious issues which one would hope would in the end disappear. I am not for a moment suggesting that it is not fundamentally important as a contemporary political and perhaps even judicial problem. But I am rather wearied by the notion that seems to be implicit: that our state, the state we are accepting, unlike the Jeffersonian, is interventionist or remedial. Where do you draw the line at intervention? For instance, Jack Pole raised a very important question of the au-

Maintenance of Revolutionary Values

99

tonomy of some institutions—not just universities—which some people would hold is part of freedom. Do you say that some functions of the universities, because they are passing on knowledge, are a social obligation? How do you make that impossible distinction? I'm a little wearied by the notion of the doctrine of all but total intervention. W e have been thinking essentially of black and white and many decades of discrimination, perhaps marginally, of men and women. But this is a large society. I take it when you say black, you mean Puerto Rican. Wisdom: Chicano. £. Wright: Do you also mean immigrants, many of whom have been less advantaged than native Americans? Or, at the other end of the scale, what about those people who are in what we in Britain call the "brain drain," well-trained doctors for instance, trained extensively in Britain, whom we lose because of the greater advantages here? Do you say to them, as part of equality, "You must make a contribution, whether to Britain that trained you, or to the new society to which you come"? If you do this, what about other Americans who have these advantages without having to meet these requirements? Once you start to say the state has to intervene for remedial purposes, you are making a profound step away from the Jeffersonian liberal state. Maybe we want to make that step. Chairperson: It makes a difference whether you have a category that is black, which is finite, and whether you move on to other minorities in terms of the degree of deprivation and state involvement in their status. But was that decision about state intervention not made with the 13th, 14th, and 15th Amendments as to blacks for special reasons? Have we reached the point, as to blacks, where we have developed all the doctrine that ought to be developed? Have we developed all the doctrine that we feel comfortable with? Do we stop at open opportunity at the preliminary level, or are we prepared to go into the privileged sanctuaries of elite institutions and deal with their problems? Kahn-Freund: The distinction made earlier between equality of opportunity and equality of position may now be of some practical value for the discussion. If you impose quotas on admission to the legal profession or to the medical profession, you are dealing with people, black or white, who will operate in a competitive market. That is equality of opportunity. But I couldn't agree more with what Professor Pole said earlier about the position of universities. I confess my bias immediately because I'm in a university. There, if you create quotas for the appointment of university teachers or research workers who enjoy tenure, you have stopped creating equality of opportunity and have, with a vengeance, tried to create an equality of position. Therefore, one cannot treat these two different situations alike. Chairperson: Let us suppose that you have fifty black applicants, who have published and are top scholars, apply to a sociology de-

100

Committee

I

partment in a college of liberal arts which has not a single black person? Kahn-Freund: I would look at the quality of the applicants, each individually, and trust myself to be able to disregard the color of the skin. I would choose the ablest person and the person whom I would consider to be best fitted to the job. Edwards: You wouldn't second guess your own judgment, after that length of time, as to whether or not subconsciously you were discriminating? Kahn-Freund: I would try to scrutinize myself with the utmost care, and I would also consult others. I hope I would also consult black as well as white people to see whether a discriminatory element has gone into my judgment. But the ultimate judgment would be a judgment as to the ability of the person. We have had this in the past. This issue of discrimination is not new. It is not something that has arisen only in connection with the racial problem in the United States. In Europe we have much intellectual inbreeding. W e are much more cursed than you in the United States with the preferences for the children of the people whom we know. This nepotism has had the most adverse result. Are you going to revive the disadvantages of past nepotism and preferences of children of certain families under the stress of the racial situation in the United States? Is this not a terribly dangerous thing to do frcm the point of your future generations? Chairperson: No, because the institutions survived a reverse kind of meritocratic selection, and I am convinced that they will survive this imposition of inclusion and fairness, coupled with a base line of competence. Subjective Judgments J. 5. Wright: It seems to me that the universities are not above the law. Edley: Thank you. ]. S. Wright: If our mores, if our morals, if our politics, if our social requirements eventuate into a consensus which becomes law, then it's got to go across the board. Greene: The price is very high. Wisdom: Have you not instances in Europe where persons serve as teachers who are not selected on merit? Kahn-Freund: Well, certainly. Wisdom: Isn't it well to avoid that? Kahn-Freund: Certainly. Wisdom: Doesn't that lead you to some form of review? Kahn-Freund: Yes, certainly. J. S. Wright: Do you want to review it in a closet? Kahn-Freund: Nothing that I said was intended to refer to the admission of students.

Maintenance of Revolutionary Values

101

Chairperson: No, no. We are talking about your peers, your colleagues. Kahn-Freund: Yes. And I would say that the best man or woman should get the job without regard to race, sex or any other irrelevancies. I would regard it as dangerous, from the point of view of future generations, to put in a share of injustice for future generations by not having the best man or woman on the job. Edwards: If you are discriminating against people who are competently trained, then you are perpetuating that evil. Pole: Proof is not forthcoming because the judgments are subjective. The best judgment of the most intelligent people available at the time is the best judgment you are going to get. Edley: That may not be good enough. Chairperson: W e have concentrated the issue on the statement just made that there is no judgment better than the academic who is choosing his peer. I would say that there rests the nub of the differences between the two sides. We who are common lawyers have the sense that judges properly informed can make judgments even in areas as arcane as this, and are prepared to have them make it. Edwards: But we would use a record that was built by people from the specific disciplines involved. I see this as really a ridiculous argument. I was never able to buy the notion that the President was above the Constitution. I can't buy the notion that the professors in choosing their research fellows are above the Constitution either. Greene: Above the Constitution? What a ridiculous suggestion. Pole: This is a dangerous situation, and it has come from two learned judges on the other side. There is no question of being above the Constitution or above the law. The question is what results we are trying to bring about. We are trying to bring about the best results for what universities do. The formulation that I suggest is that the specific function of the institution is relevant to the method of appointing to it. The specific function of the medical profession, plumbers, legal profession, pure research institutions are all slightly different from each other. Some considerations of the same kind apply to them all. I would regard it as very strange and suspicious if there were in fact no members of minority communities or no women on the faculties of leading institutions. My curiosity would be aroused by such a situation. But the judgment, the intellectual standards, and the integrity of the people making the appointment is in the last analysis what has to be consulted. Wisdom: Will you not concede that to some extent one's judgment may be colored by one's views? For example, you may be an extreme liberal or an extreme conservative, and measure a person to some extent by whether you think he is out in left field or out in right field. Pole: Many of my colleagues are extremely guilty of this. Wisdom: All of us are subject to these prejudices. Edley: I am totally and completely against you. In every area that you have mentioned, there is gross unfairness in this selection proc-

102

Committee

1

ess. Our judges are not able to designate and select the people who go on the bench. You are, in effect, arguing for a privileged position. There is a better way. The University of Pennsylvania can specify the job requirements for a dean or a professor, then ask a selection committee from the W e s t Coast to select the person best qualified in the United States to do it. They do not have to do it themselves. They do it themselves because there are a lot of subjective factors. You say that there is no perfect way to do this; therefore, you do it the best way. You are going to deny someone's rights on the basis of that. W h e n you are equating the operating conditions of a university as they exist today with the rights of individuals being denied, you have a very distorted notion of values. You can proclaim the mission of great universities, but there is trouble with an acceptance by a lot of rank and file Americans that research is the most important function of the university. That is an elitist viewpoint. Jenrter: I would like to say that equality is a realizable goal. There is opportunity for attainment. It all gets down to the fundamental that when people seek to live together in a society reasonably structured, as new stresses come along, some must yield, with pain on occasion, for the greater good, not merely for those who exist today, but for those who will follow us. The Preamble speaks in terms of posterity, not merely of those who were framing the document. The Preamble is not authoritative, as are the various articles and sections; it is a goal to be achieved. Shared Responsibility Chairperson: W e started out on the subject of equality when we listened to the papers presented to us and to the assertion of the values in the Declaration of Independence and the Constitution. Among these was the value of equality, defined by Professor Greene as equality of rights. As we discussed the values that are still of significance, there appeared to be agreement that the value that had remained was equality, and that, while we might have some difference of opinion about the other values, from pursuit of happiness through independence, life, liberty, justice and order, equality was one about which there was continuity of agreement. W e moved to a discussion of the questions raised in Professor Kelly's paper about the enforcement by the courts of this value of equality. We discussed the nature of equality and the role of the Court in dealing with issues raised by both the Civil W a r Amendments and the statutes of the 1960s. W e arrived at some of the harder specific questions of Professor Kelly's paper about the consequences, the legitimacy of the Court's intervention in applying remedies for past discrimination and enforcing a standard of equality for the present time. I would say we are close to consensus about the propriety and le-

Maintenance of Revolutionary Values

103

gitimacy of the courts' intervention in remedying past inequality and achieving present equality of both opportunity and result, in areas such as integration of police and integration of schools and probably the armed services. The point at which we arrived at some disagreement was over what action should be undertaken by the governmental institution, administrative, judicial or legislative, as well as the cost assumed by the persons to whom the remedial action was directed. Our academic friends felt that it was inappropriate for governmental institutions to attempt to substitute their judgment for that of the trained academic who knows best what are relevant, essential qualifications. One of our number felt that it was unfortunate to impose remedies which placed a heavy monetary cost upon persons such as shareholders. Mr. Brown questioned having lower economic classes bear the burden of the remedies. We have a fairly good consensus that the state does have some role in remedying past inequality of opportunity. Am I right? What we question is the extent of the court activity and where it applies the remedies. Tenner: Not only the courts, but also the legislatures. Chairperson: I'm sorry. I really ought to talk about governmental institutions. 7. S. Wright: And we should make clear that initial steps ought to be taken by the officers of the state, the Congress, and the President, all of whom have taken an oath to support the Constitution of the United States. Their first responsibility is to see that the principles of the Constitution, as flavored by the Declaration of Independence, become a reality in the next 100 years. The Court should play a supporting role. The Court should simply intervene in those areas where the states, the Congress, and the President have abdicated. The courts should move in the name of justice and constitutional law to undo the damage that is being done to our basic principles. Wisdom: Both Mr. Greenberg and I have pointed out that there was no effective desegregation of schools until Congress acted. /. S. Wright: I think that's absolutely true. The Congress was stimulated by the Supreme Court in 1954 at Little Rock. Wisdom: It was stimulated by cases which led to Brown. 7. S. Wright: And the whole line of cases we talked about earlier. In effect, nothing was done until Congress took a hand. We were struggling in New Orleans to put two little children in a 150-population school system. It was a grade a year. And it was not until 1964 that Congress came forth with money and finally got something done. It is important to put the responsibility where it belongs, on the states. They took an oath to support the Constitution. It belongs also on Congress and on the presidency. Greenberg: It would be even more fair to say that Congress and the President caught up with the Supreme Court. 7. S. Wright: There is no question about that. Chairperson: Would you add to your hierarchy of responsibilities

104

Committee I

the suggestion that private institutions must, before the imposition of governmental intervention, find a way to deal with these problems, to obviate the intervention of government; but that it is that failure that leads to the imposition of the governmental responsibilities? J. 5. Wright: There is no question but that the private sector does have a great responsibility. But, as you know, the only way the courts really get into acting on the private sector is through Congress. Congress has to pass the equal employment law, and then the courts move in to implement what Congress has enacted. Chairperson: All right. But this does suggest an interventionist or supportive view of government in the protection of civil rights and the values of equality. Creenberg: The private sector is rather complex. It is not a unitary thing, responsive to the will of someone who is running, let us say, even the General Motors Corporation or a municipal or state civil service bureaucracy. What you have are levels of management at which frequently top management wants to do something, but is totally frustrated by union contracts, civil service rules, and bureaucratic foot-dragging. I have seen a good number of situations in which top management will ask a civil rights litigating outfit to bring suit, or indicate that it will accept a suit being brought, because it will enable them to break up a situation they cannot cope with internally. Chairperson: Then we have tied up the responsibility that we are agreed exists with the government in the application of this value. J. S. Wright: The private sector has a great responsibility. The only thing that I suggested was that the courts could not operate directly on the private sector. The intervention of Congress or maybe the states is required. imposition of Quotas Seymour: I hope, if this is going to become an effort at consensus, there will be at least a reservation on the issue of quotas. There is certainly doubt in many quarters about the wisdom of quotas, not only in the universities but in other places. There are many people, including the Jewish organizations, for example, that are disturbed about the imposition of quotas. Chairperson: Let me see if we have agreement about even this subject: insofar as it becomes necessary for courts to impose specific remedies upon specific defendants, there is no substitute for the assignment of certainty through the designation of numbers. That's what Judge Wisdom was saying, was it not, when he said he has no choice? Wisdom: I did not go that far. I said we did not speak in terms of quotas, but to bring about effective desegregation of schools, it was necessary that there be mandatory assignment of pupils. This is not the same as quotas. On the other hand, when it comes to the fire or police departments, I saw no objection to imposing a system of quotas which would be effective until a certain date.

Maintenance of Revolutionary Values

105

Seymour: Let's reserve the problem of quotas. While there may be some cases where the requirement of a particular number of employees is the only remedy, the committee does not desire to encourage the development of the quota system in any fields we can think of. In my view there is the gravest doubt about the effect of the imposition of quotas on the individual liberties of many people. We ought not to embrace that without expressing some reservation. Chairperson: It is clear that we have not dealt with the issue of result over a period of time; but we have not disapproved what Judge Wisdom stated as the imposition or assignment of specific numbers. Jenner: Where it reaches a situation in which the matter before the court cannot be rectified, and the court then finds that every other possible means is ineffective, then a quota perhaps should be established, but managed in a fashion so that by either a fixed time or level the quota can be abandoned completely. Society generally is concerned about the imposition of quotas. But I do not agree that we shouldn't use them at all. /. S. Wright: What about this: imposition of quotas should be avoided except where no other reasonable remedy is available to relieve the injustice? Greenberg: That still has a negative tinge to it. I would put it a little more cordially. I would say that quotas, like any other remedy, may be employed if appropriate and necessary for the situation. That is rather different than saying it must be avoided like the plague, but do it if you have to. Chairperson: Since we are searching for consensus, do we not have an agreement with the concept suggested by Judge Wright? Greenberg: I do not disagree with his formulation. I do disagree with its tone, which is that quotas are inherently offensive. They're not any more inherently offensive than scores of other standards we use in society, indeed, the necessity to enforce an injunction. 7. S. Wright: Does this help it at all: imposition of quotas must be avoided except where other reasonable remedies are unavailable to relieve the injustice? Greenberg: That's moving a little closer to my position. Social Revolution Seymour: Somewhere in any statement on this general subject there should be recognition that in the last ten or fifteen years, enormous progress has been made, and that we are perhaps close to the doctrine that the measure of a civilization is the degree of its obedience to the unenforceable. I see in New York and around the country an acceptance of equal opportunity and equality of employment rights. We are getting to a point where court enforcement is less and less necessary, perhaps not in school segregation, but in other fields. It might be all right to strike a mildly optimistic note in a report about the Revolutionary values. What makes the country run is the acceptance of these develop-

106

Committee I

merits and the fact that, in one way or another, there is obedience to the unenforceable. E. Wright: T h e thing that strikes me on visits to this country is the scale of the social changes and the social revolution that indeed you have passed through without any visible way of measuring it. You can credit the civil rights acts. Y o u can point to the particular decisions of the courts. But it's been a steady and happy change, and deep down, a human and almost psychological change, going well beyond what the courts say or what the politicians decree. T h e r e has been in effect a social revolution. There is a danger in our quite proper, natural preoccupation with this wearying problem of equality of opportunity, particularly black and white. If we were to inscribe that as our sole subject of discussion and debate, historians a century later would forget that massive social optimism that I believe is a feature. Seymour: O r they would say that we had forgotten. E. Wright: Yes. An outsider might see this far more than you do. If I may say so, Americans tend to underplay their achievement in this area. J. 5. Wright: I wouldn't give anybody the impression that the fight is over, that vigilance should not be maintained, that injustice is not throughout this land, and that we should put down our oars and coast. E. Wright: No, I'm not saying that. I'm just trying to pay tribute to what has been done. 7. 5. Wright: I would be all for paying tribute, and I would go further and say, put the responsibility initially on the states, on the Congress and on the President. T h e n put the ultimate responsibility, in the absence of success in those areas, on the courts, after recognizing how far we have gone. But I would not want to suggest that the fight is won and there is nothing more to be done now. £. Wright: W h e t h e r it is fully won, or only in the process of being won, it is a fight to do something to remedy centuries of discrimination. But wouldn't it be proper to ask, if we were thinking of Revolutionary values, and if we were thinking of this in terms of other societies such as Russia or certain African states, if there would also be a need for humanity and fraternity? If you can interpret humanity as the rights of the individual, you can also talk about humanity in the sense of all mankind. If we were looking at this in the light of all eternity, we would have to ask if it is enough to put your own house in order, to remedy your own centuries of trouble, for which we, the English, in part are to blame. At some point perhaps we have to look at this in terms of a wider world than just the United States. Chairperson: Using that as a point of departure, earlier, Congressman Wiggins, in response to a request to suggest new values that we might now pose for application in the next century, suggested peace as one that would have been included were the founding fathers meeting now in Philadelphia. Are we agreed that this is a value which at

Maintenance of Revolutionary Values

107

least equals, if not transcends, those we have been talking about? Is it one we want to consider? Wisdom: May I suggest that you are leaving too soon the point raised by Mr. Seymour and Professor Wright that we should take pride in the accomplishments so far. Our report should not be too pessimistic, because we have accomplished a great deal. Greenberg: That's essential. Otherwise our report would indicate that we ought to make no efforts in the future because past efforts have failed. Nevertheless, we can't forget that the black unemployment rate has doubled. Wisdom: I was going to say, fighting unemployment. Edwards: I want to join in the idea that we have made progress, great progress. When I look back at the world I grew up in as a boy in Texas, I never dreamed we would be at this point in my lifetime in relation to the issues we have been talking about. I would never have thought that we could move that far that fast. Yet we have. But, on the other hand, I cannot join in that without saying that the growing apartheid in American cities is a source of deepest concern. Seymour: We ought to indicate that we have made progress, that much remains to be done, and that the ghettoization of American cities is a terrible threat. J. S. Wright: I agree. I think we have a consensus here. Chairperson: Do you wish to limit your statement of progress to, at least by implication, progress on racial matters? Would you like to extend this to the development of notions of equality for nonfreeholders? Seymour: You ought to include that there is progress in the field of sex as well as race. /. S. Wright: It isn't necessary to dwell on the past too much because the past is not encouraging. We did have all these great brave promises after the Civil War, and you remember what happened after that. We had a little relapse. We have to continue to be alert to these matters. Seymour: The ghettoization of the cities is a problem we have to worry about. Chairperson: You mean making them into black ghettos instead of white ghettos? Wisdom: Whatever you want to call them. Chairperson: What we are really talking about is the balkanization of our American society by race. Wisdom: The destruction of the central core of the city. /. S. Wright: The most important and most encouraging thing that happened in this whole area is that sex discrimination has been thrown into the pot. We are going to make more progress now than in the past, because sex and race are marching together in the right direction. Sacrifice of Other Rights? Chairperson: I would like now to go on to the third question that we have been trying to get to: values other than equality that we feel

108

Committee

I

it imperative to protect and enhance, going into the third century of the Constitution. I question whether we agree with Congressman Wiggins that peace is a new value that we wish added to the pantheon. Wisdom: We should still concentrate on the individual's rights which have to be sacrificed to some extent, but must be preserved as much as possible, in obtaining any equality. When we get equality, we do it at the expense of individual rights. W e should be careful to recognize that the attainment of equality is at the expense of rights that we are dedicated to preserve. Chairperson: All right. What rights do we wish to protect which are interfered with, limited or eliminated by the imposition of equality? It is not enough to say that we lose rights and liberties. What are the ones we lose that are endangered? ]. 5. Wright: W e don't have to talk about that. W e ought not to warn that this is going to be at a cost of individual rights. Obviously, there is going to be some sacrifice of individual rights. Order requires that there be some limitations on liberty. Chairperson: That may well be. But we keep making the statement that equality means giving up liberties; and if we care about liberties that are given up, we ought to identify some. Wisdom: We have increased rights of privacy, and I am sure there are other rights which are increasing. At the same time that we give up rights, we also preserve rights. W e have more First Amendment rights, among them the right of privacy and the right of free expression. Pole: The liberty of one person to have access to well-paid employment, or to go to college, may be gained at the expense of the liberty of another person who has previously had more choice in the matter. I do not see this as a loss of liberties; I see it as a redistribution of them. W e shall be on a sticky wicket if we start saying that we are giving up liberties in favor of other rights. In fact, we are couching this in terms of abstractions of the sort that are emotive without actually being concrete. We may be redistributing liberties; we are not diminishing them. Greene: I agree, it is not a matter of losing liberties. What we are required to lose, and what we have already lost for a long time, is some of that individual unrestrained pursuit of happiness. Chairperson: What " w e " ? Wisdom: My right of contract as an employer is severely limited by recent— Greene: It's not a matter of liberty; it is pursuit of happiness. Wisdom: Whatever you want to call it, it's reduction of my sphere of activity which I enjoyed before. Hyneman: Restriction of choice. J. S. Wright: It's so obvious I don't think it has to b e — Chairperson: Now, Judge Wright, we are not talking about the loss of liberty; we are talking about the loss of freedom by one segment of the community to do what it previously did, in order to provide a

Maintenance of Revolutionary Values

109

cognate liberty to another part of the community. When you say " w e " have the freedom, you mean you, a white male. You don't mean me, because I did not have it. Greene: Some of us. Chairperson: Some of you had it, but we did not have it. Today " w e " have it, and that's the difference, if you want me to personalize it. I say that it is neither obvious nor necessarily true that what you say is reality. There is a redistribution of liberties among a broader group in the society; that is, blacks now join you in certain liberties. Your liberties are restricted, but the course of liberties, indeed, is expanded. Edwards: I find myself rejecting the concept that we lose liberties by giving liberty to others. If the liberty we were giving was to somebody to start oppressing me, I would understand that. But what we are really doing is sharing the liberty concept, which has been a part of our history and our law since the Civil War, with people who have been excluded from it. If we are going to make this idea of democracy work, it's got to be a concept that this is one America, not a combination of divisive classes by race and creed and color. And to the degree we form a more perfect union, we serve all of us, and we serve our nation as a whole. To me this is the most affirmative of goals. It ought to be stated in the most affirmative of terms. I can't seriously debate the statement that an employer feels restricted by the Equal Employment Act. 23 But the affirmative fact is that we are bringing people into the full light of American democracy, people who have been excluded before. Wisdom: All I mean to say is that these are relative terms. To the extent my liberty is increased, your liberty may be reduced, and vice versa. 7. S. Wright: I would like to put this more affirmatively that we are sharing our liberties. We are sharing our liberties to form a more perfect union. Greene: What liberty is being given up? Lots of people have had to accept certain restrictions on the scope of maneuver they enjoyed in the past. That is part of what our founders would have called the pursuit of happiness. /. 5. Wright: The Preamble of the Constitution says to "secure the blessings of liberty." We know it was not to secure the blessings of liberty to the black people. Greene: That is true. The people who formulated that liberty have not given up any liberty. 7. S. Wright: We are now sharing these blessings of liberty referred to in the Constitution. £. Wright: This is a little like the argument over mercantilism in the 17th century. There is a fixed sum of money. If you share it one way, then someone loses some things. What is forgotten is that things grow; that by creating more liberty, you enhance other people's. Edwards: You enhance the liberty of everyone.

110

Committee

I

Seymour: This is a good way to polish off the statement about the progress we have made. Chairperson: If you were to look at this transcript over three days, you would find the recurring statement that giving equality means the restriction of liberty. ]. 5. Wright: But we don't want to dwell on that. W e know when people are bumped to give somebody else a job, the person who is bumped has had his liberty interfered with. W e know all that. But why keep bringing it up? Chairperson: Because this is the core of the Kelly paper, and if we had left it where I feared we were going to leave it, we would be concurring. You are no longer concurring in this concept of an inelastic supply of liberty which, when diminished in a specific situation for one person for the given moment, can never be restored to him, and which results in a diminished pie of liberties for us all. That is not what we meant. Liberty as Power Kahn-Freund: The word "equality" can bear very different meanings. I would suggest that the word "liberty" also has many different meanings, and that one of the uses, or probably misuses, of the word liberty is that it stands for power. Very often when people talk about liberty here in America and in Europe what they mean is the exercise of social power, a power of command over others, a power to organize, a power to engage in enterprise, especially a power to command. That power to command is restricted by the more advanced notion of equality which prevails today. The liberty of the individual is not really restricted in the sense in which you formulated it, Madame Chairman, but in the sense that one's social power is restricted by this compulsion to comply with certain standards of equality. /. 5. Wright: Is this an individual power or the power of the state? Kahn-Freund: I'm not talking about the power of the state, but the power of economic forces in society. The power of big enterprise, for example, is restricted by the need for observing certain criteria of selection. Edwards: When most people talk about liberty they are talking about individual freedom. They are talking about the right to speak, to think, to worship, to live, to hold property; not the power to govern other people, economically or otherwise. I don't dispute the fact that there are industrialists who would think that liberty for them was the right to exploit. But that is not the typical concept of liberty as we know it in this country, or at least as I have heard it. Chairperson: But it is the liberty to determine what wage rates should be in the light of productivity and the market for the product being manufactured. Whether you want to call that power over individuals or not, its consequence does make that point of view con-

Maintenance of Revolutionary Values

111

sonant with the suggestion made by Professor Kahn-Freund, does it not? Edwards: He has a defensible definition. I am just saying that it is not the definition that customarily comes to the mind of the average American citizen, and it is not one that I would want to see employed. Greene: It is not the definition that the founders would have employed for liberty either. It is the definition that some industrialists and others at the end of the 19th century would have used. Kahn-Freund: Are you talking about Lochner v. New York?24 Edwards: There is no question that they employed it for a while. Chairperson: What liberties that we wish to protect will be limited or eliminated by the application of the value of equality as we have described it here? Edwards: None. Chairperson: That is what I thought. Peace and Domestic Tranquility Greene: What about peace? Chairperson: That's exactly where I am going, to peace. Greene: All I want to say is that it would be a terrible calumny on the founding fathers to suggest that this is a new value. And I thought that I had spelled out in my paper and in my summary of it that peace was one of those important Revolutionary values. 7. S. Wright: Is that the same thing as domestic tranquility? Greene: They included peace with domestic tranquility. Edwards: Personally I prefer domestic tranquility because I understand what it means. Peace is a word that gets into metaphysics. Greene: They meant domestic tranquility, but they also meant a pacific disposition toward the rest of the world. And they meant that very powerfully. Chairperson: Yes, but not under the concept of domestic tranquility. Greene: Domestic tranquility was part of peace. But there was another aspect of peace that was a pacific disposition toward the rest of the world. Chairperson: It seems to me that in the context in which the term was used by Congressman Wiggins, and the statement made by Professor Wright a few minutes ago, there was the concept of peace in terms of external relationships, not domestic tranquility. Greene: Yes. Chairperson: He said he thought this would be a high and articulated value. Greene: It was very high in 1776, too. They were not a militant people. Edwards: If we get into this, we get into something else of tremendous importance in our world. We are losing all sense of American Revolutionary zeal, all sense of the idea that democracy is a concept fit for export, all sense of being supportive of democracy and democratic trends elsewhere in the world. A flat affirmation of peace 112

Committee

I

without likewise amplifying the desire for spreading democracy is an unfortunate use of the term. E. Wright: Let me underwrite that. If you look at all the great charters of American history, not just the Declaration and the Constitution, but the Gettysburg Address, they have always been in a setting of awareness of the American role in the world, a model, a prototype, an example for all mankind. It is important for that to be said, that the very struggle for equal rights in this country is not purely domestic. Look at the rest of suffering mankind, whether it is in a less ordered society or in a totally controlled one like the Soviet Union. In none of them has equality been remotely as successful as here. So, if one is introducing into our statement a manifesto of equality, it would have to speak for all suffering humanity. Seymour: I would like to see the statement include the Revolutionary value of domestic tranquility. As a result of the work of Justice Holmes and others, this now means an expansion of the concept of freedom of speech and freedom of the press. Truth is not shouted down by those who would destroy domestic tranquility. A blow can be struck for free speech and freedom of the press. In addition, the Revolutionary values which we see as being important today, like those originally adopted, are part of America's duty to make clear both here and abroad. We are a standard both to ourselves and to others. J. S. Wright: I agree. But in what context? Seymour: We are going to have a list of additional Revolutionary values which will emerge from our discussion. And then one would start by saying that among the Revolutionary values which the founders saw was the importance of domestic tranquility and the importance of having the American institutions of freedom set a standard for other countries. E. Wright: In Jack Greene's paper there is a summary which begins "Social Foundations of Revolutionary Values." After the quote from Samuel Williams is a list: "Unity; public virtue; equality of opportunity and rights for citizens; public happiness as represented by peace and tranquility and the ability of all citizens to strive for prosperity and independence, secure in the knowledge that the property acquired as a result of their strivings would be secure"—we haven't discussed that aspect. Perhaps we are taking it for granted—"order; justice; liberty as both the sanctity of individual liberties and the right to participate in the political process; security of life—these were the principal values of the Revolutionary generation, . . ." These would fairly well stand for the surviving values of our own generation. I would have thought we would need to look a little more sharply at "life." There is a major public debate on the death penalty, abortion and other similar issues. W e have a whole new set of political anxieties about " l i f e " which were missing in the 18th century. Hyneman: If we in some way endorse the idea of domestic tranquility, are we saying that we think no problem should be expected to arise which excites people to raucous behavior? Are we making a dec-

Maintenance of Revolutionary Values

113

laration to the effect of getting all social conditions so regulated that such problems will not arise? Or do we believe that solutions can be found so quickly that there will not be raucous behavior? Everybody hopes there is domestic tranquility until a problem gets to the point where people feel they can't get justice without disturbing the tranquility. I am puzzled as to why we want to write domestic tranquility along with equality and certain other things. I wonder why we shouldn't say, "And we do entertain a hope that if these other things are attended to, the nation will enjoy the blessings of tranquility." That's where tranquility seems to come in. Seymour: I had hoped that we could add to the bare bones of domestic tranquility the concept which I think has emerged from decisions of the Court, that rational discussion of our problems is an important part of our system. And that that is the way domestic tranquility could be maintained. Chairperson: Was there not inherent in this further step, beyond a rational discussion, the assumption of the responsiveness of the system to the results of the rational discussion? If rational discourse does not change objective conditions, can there be domestic tranquility? Edwards: Domestic tranquility doesn't have to give a picture of America as a cow peacefully chewing her cud in a green meadow on a sunny day. Domestic tranquility can encompass vigorous debate, marches in Birmingham, all sorts of things. I would hope that it rejected violence as an acceptable technique for social progress. /. S. Wright: I thought the idea was to suggest that, because of the progress we are making in providing a shared liberty among our citizens, domestic tranquility increases. At the same time, the right of all of us to exercise our First Amendment freedoms is insured. Chairperson: Do you say that without progress there will not be domestic tranquility? Hyneman: Yes. J. S. Wright: We all know that inherent in the Declaration of Independence is the right to revolt. After all, it was a revolt. When you become sufficiently dissatisfied with the government, the Declaration of Independence indicates that you have a right to revolt. Tenner: Without it there would be grave danger. J. S. Wright: But I would think that the success we have had, the progress we made in the last thirty or forty years, would tend to insure the domestic tranquility that the founders had written the Constitution to protect. It would also provide for a vigorous exercise and protection of First Amendment freedoms. Seymour: And coupled with that is the concept that the system which emerges may hopefully provide a pattern for other countries. Catalogue of Values Chairperson: Let me suggest that we go around the table, starting with Mr. Greenberg, for a brief statement of the Revolutionary value, other than equality, that you think needs the greatest attention in the next 100 years.

114

Committee

I

Greenberg: The issue of equality is certainly the most pressing. But closely related is what I would call the issue of fairness of procedures and humaneness of treatment of individuals by government and large entities which wield as much power as government. That is something which has been in the Constitution since the due process clause. But I'm not merely talking about due process. I'm talking about legislation which implements procedural fairness. I'm talking about such things as the availability of counsel which make such a hope a reality. This was a rather growing notion in the past decade. But it has almost come to a halt with the imposition of a number of procedural and other barriers and the cessation of growth of the state action doctrine 25 which we have seen recently. If one were to make an effort to expand personal freedoms in years to come, it would be necessary to devote attention to institutions such as the police, the prisons, the large utilities, the bureaucracies, the welfare systems and so forth. There is a danger of perhaps overbureaucratizing, and creating problems which begin to approach those that one is solving. But perhaps it might be done in a way which creates habits of conduct and attitude that would be a natural way of dealing with people and problems. Wisdom: I'm still uncertain as to what were the Revolutionary values. At that time the founding fathers put a great deal of value on as little restraint from the government as possible. I see a great shift towards increase of governmental responsibility, particularly of the national government. I don't see this as something bad. Hamilton foresaw it. It was necessary. That's why we have the doctrine of incorporation of the Bill of Rights through our second Constitution, the 13th, 14th, and 15th Amendments. Those amendments have unquestionably restricted freedom from governmental restraint. It was probably a good thing in the interest of society. W e have gone through a social revolution with relatively little violence. W e can be proud of that. I look forward to increased equality of position, as distinguished from equality of opportunity, which I am not sure exists. I look forward to increased First Amendment freedoms, particularly the right of privacy. Probably included would be the right to be free from criminal prosecution for victimless crimes. I can see great changes coming, most of them resulting from cross-currents resulting from increasing First Amendment freedoms. At the same time, I see increased governmental restraint on individuals and corporations, except in the area of the First Amendment, in the interests of equality of position. Kahn-Freund: I would be less than truthful if I said that I was an uncritical admirer of American society as it is at the present moment. I would also like to say that restraint on governmental action is important, but that, standing by itself, it is of no value. Governmental power is only one of the many restraining powers in society. The power of big enterprise is as powerful a restraint as the power of government.

Maintenance of Revolutionary Values

115

I suspect that I am the only person in this room who has ever lived under a dictatorship. If one has lived under a dictatorship, the question of what are the important values, the really fundamental values, answers itself. The elementary fact is that if there is a knock at the door it is the milkman and not the Gestapo. Is that one of your Revolutionary values? I suppose it is. T o say that it is very important is an understatement. In other words, the fundamental values, call them Revolutionary or not, are to me a matter of very intensive experience. Fundamental is the rule of law which means that no one—no police authority or any other authority—is above the law. Incidental to that, the First Amendment freedom of speech. And the Fifth Amendment, not to be deprived of life and liberty, and also, though less important, property, without due process of law. It is terribly primitive. But if one has lived even for a short time in a system in which this doesn't exist, it isn't terribly difficult to answer the question about the fundamental values of the Constitution or the Bill of Rights. Pole: This country has very successfully until recently appeared to solve many of the problems which other peoples have struggled to solve. That's the exemplary aspect. This country is now, and has for some fifteen years, been less successful than other countries in controlling violence in the most elementary physical form. I have become increasingly fearful here. When the police or other civic authorities warn us of the dangers which menace us in Britain, they always take the American example: "You know, in five or ten years the cities of Britain will be like those of the United States." This is something which people are learning to live with here, in the sense in which Indian children learned to avoid snakes as they ran through the grass. It becomes instinctive. Certain precautions are taken. But it is a highly unsatisfactory state of affairs. Things will not be satisfactory until the need to control comes from inside, not just imposed by governments and police. Shortly before his death, Martin Luther King warned the black community that they had a lot to set right in their own house. A large number of crime victims are blacks. A large amount of crime is perpetrated by blacks. There seems to be a certain despair about this. I don't sense yet where the control is going to come from. Judge Wisdom mentioned the First Amendment. We must all surely be thinking of First Amendment aspects now after the exhaustive discussions we have had, and obviously certain aspects of privacy. Privacy includes privacy against being bombarded by a great many things which other people want to do, including smoking in public and making immense noise. A major problem can be placed under the heading of the word "accountability." It is a fundamental Whig principle, which became a Republican principle, that those who make and administer the laws are as subject to them as those for whom they are made. That was a prime principle forgotten by the Nixon administration. But it is nor-

116

Committee

I

mally forgotten by many city administrations. Accountability of government to those who are governed is a principle that needs absolutely incessant reinforcement. Seymour: First, if we say anything in the record about the expansion of the right of defendants, or limitations on their rights, I would like to couple that with some consideration of the rights of the public's convenience in connection with law enforcement. Herbert Brownell gave a very good Cardozo lecture 26 a couple of weeks ago to the Association of the Bar of New York in which emphasis was placed on the need to make sure that adequate facilities were provided to keep cases from being adjourned indefinitely. I don't know if we are going to say anything about the rights of defendants. If we do, we ought to emphasize also the importance of protecting the public's rights in connection with criminal proceedings. T h i s is really a development stemming from the Connecticut birth control case 2 7 in which I filed an amicus brief. Where the right of privacy was extended by the court, it now seems to be somewhat reduced. But the Supreme Court of New Jersey has just struck another ringing blow for it in the disposition of the Quinlan case. 2 8 Next, the controversy between the courts and the press on the proper role of the press in connection with reporting trials is a subject of great interest in the administration of justice. This is a relatively new area of controversy. Finally, in the area of free speech, there is an increasing concern with the ability of communities to deal with the pornography issue. W h a t is happening in all American cities is that the cities are embracing the degradation of the human spirit. If this matter were returned to the police power of the states, under supervision by the courts to keep them from excess, people would feel easier than they now do about it. Edwards: I think of equal rights for all people, as guaranteed by the Bill of Rights, made effective by the 14th Amendment. They have greatly increased since 1954 in the area of voting rights, racial equality and the equality of the sexes. Secondly, I regard the Bill of Rights as directly responsible for what I term the magnificent diversity of our American society at present day. W h e n we succeed—and I hope we will—in defeating the problems of discrimination and poverty, this magnificent diversity, which is another way of defining liberty, may prove to be the greatest of the results of the American Revolution. That diversity I see as being underpinned by the First Amendment rights of freedom of speech, press and religion. It is also founded upon the great concepts of due process of law, jury trial and search warrant procedures which we inherited from the English common law. W e should say that access to the Bill of Rights is being endangered by the closing of courtroom doors in recent days by the Supreme Court. Tenner: O f course, we are talking about Revolutionary values; that

Maintenance of Revolutionary Values

117

is, values regarded by those who engaged in the Revolution and not revolutionary values in the sense of revolution today. I don't see any need for amendment of the Constitution. Nothing of the gravity that faced us in 1868 is present today. There is sufficient diversity and flexibility in the present Constitution, coupled with the good will of the people, to work out our problems. As to government, it is my view that the people create their government. W e would not have the society we have at the moment without a government within the framework of the Constitution. And when I say Constitution, I always include the Bill of Rights. Once created, it must be policed, so that the government itself doesn't engage in excesses which harm the people. Whatever restraint that may come from government must be only the restraint that the people permit. It is a government of the people in the true sense of the word, in my judgment. I would urge that in any consensus we do not permit any tones of pessimism, which I have noticed from time to time in our discussions of individual issues and problems through the past several days. I liked the expression that what comes must come from the people, not from the government and so imposed on the people. We have seen in the last three or four years an administration led by a President who disregarded the people's individual rights and weakened and abused their legal institutions. The people became both offended and apprehensive. It came to the point at which the people themselves, through their representatives in Congress, engaged in the process of impeachment. I recall, during the early days of my association with the House Judiciary Committee, some of the members saying that impeachment was an awesome thing and we should get at it promptly, get it over with, or not pursue it at all. But the people did not fear to act. It was through their exercise of this constitutional instrumentality and their representatives in the Congress that their chief magistrate was brought to brook. The people also functioned through the sessions of the Senate Select Committee. 29 Thus, through the people's representatives, abuses of privacy and disregard by President Nixon of substantially every one of the individual protections and rights incorporated in the Bill of Rights were brought into public view and dealt with. When I say we should avoid pessimism, I would like all of us to keep in mind what happened. W e did embrace the Constitution with respect to a President who was a despot. The Constitution does afford the people an opportunity through its representatives in a republican form of government to reach to these crises. This they did. The people saw the impeachment committee debates night after night and day after day on television. Ninety-five million people in this country, the pollsters say, saw that debate. As I go about the country now, especially among the young, I see a resurgence of faith in this government, our Constitution and in our legal systems. Our system works. There is opportunity within the Constitution for the people to govern themselves.

118

Committee

I

Individual Liberty J. S. Wright: I would underscore w h a t B e r t J e n n e r just said a b o u t our progress over the last thirty or f o r t y y e a r s in the a c h i e v e m e n t o f all the R e v o l u t i o n a r y values. I would place particular e m p h a s i s o n w h a t I c o n s i d e r the p r i m a r y Revolutionary value, individual liberty. I would define this as liberty limited only b y the need for order, and t h e n o n l y to the e x t e n t n e c e s sary to protect liberty in others. T o me this involves the limitation on g o v e r n m e n t itself. I would h o p e that the R e v o l u t i o n a r y value o f equality o f opportunity for all our people, irrespective o f race or sex or n a tional origin, will c o n t i n u e to b e e x p a n d e d , with renewed emphasis on all o f the First A m e n d m e n t f r e e d o m s . I would h o p e that the people themselves have m o r e of an o p p o r t u n i t y to exercise First A m e n d m e n t freedoms, not just the n e t w o r k s , not just the n e w s p a p e r s , not just the licensees o f radio and television stations. I would like the people themselves in s o m e w a y to have access. It's not e n o u g h to turn over the streets to the people, under the h a r a s s m e n t o f police, to m a k e parades and a s s e m b l e and petition, and so on. O u r modes o f c o m m u n i c a t i o n m u s t b e m o r e sophisticated. T h e ordinary people o u g h t to have a m e a n s o f expression if the First A m e n d m e n t is going to mean a n y t h i n g . A n d then I would hope also that we would achieve the R e v o l u t i o n ary value of d o m e s t i c tranquility b y sharing our f r e e d o m s a m o n g all our peoples. B y our u n d e r s t a n d i n g and our c o m p a s s i o n , let all our people k n o w that we do w a n t to help each o t h e r , and that through cooperation we can c o m e to a shared sense of liberty that can b e as good as and as c o m p l e t e as the real world will allow it to be. Hyneman: T h e value which I am quite certain the f o u n d e r s were deeply attached to and which I t h i n k the c o u n t r y m o s t needs to c o n template vis-a-vis its future is virtue, virtue in the population and virtue in its public officials. I will read from the Pennsylvania Constitution of 1 7 7 6 : T h a t a frequent recurrence to f u n d a m e n t a l principles and a firm adherence to justice, m o d e r a t i o n , t e m p e r a n c e , industry and frugality are absolutely n e c e s s a r y to preserve the blessing o f liberty and keep a g o v e r n m e n t free. T h e people o u g h t , t h e r e f o r e , to pay particular a t t e n t i o n to these points in the choice o f officers and representatives, and to have a right to exact, a due and c o n s t a n t regard to t h e m , from their legislators and m a g i s t r a t e s in the m a k i n g and e x e c u t i n g such laws as are n e c e s s a r y for the good g o v e r n m e n t o f the s t a t e . 3 0 T h e r e is no question that they are talking a b o u t qualities and attrib u t e s of the general population, not simply of its leadership. Industry and frugality are relevant to the w h o l e b u s i n e s s o f m a i n t a i n i n g or assuring the a u t o n o m o u s citizen. T h e r e f o r e , in all our p r o g r a m s w h i c h are designed to reduce a d v a n t a g e and equalize o p p o r t u n i t y , it is n e c e s -

Maintenance of Revolutionary Values

119

sary to consider whether or not we are also encouraging autonomy on the part of individuals, not removing from them the necessity of participating in their own livelihoods. Second, I see in the academic literature of our time, and on the part of the "intellectuals" and the communicators for the nation, the notion that the citizen should consider only the issues. It is important to evaluate the candidates themselves. The nation ought to consider whether the function of the press is to say to the voter, " Y o u are not sovereign in the sense of deciding what tests to apply in your choice of public officials. You are entitled to the information you think you need." Lastly, this idea of moderation, or temperance, implies that the demands which people put upon their government will always be put with concern for the public welfare. This should not be an arena where powerful groups come to win in whatever way they can. There is an obligation of the citizenry and the leadership to moderate their demands so there can be a domestic tranquility. E. Wright: I am an admirer of the American way of life and of the American system even though I stay British, holding a British passport. It would be improper to talk only of pride in the achievement. That point has been made. There should be no tone of pessimism in the statement that finally comes out from this committee. But it would be equally false to the spirit of the Constitution if we didn't identify several areas of concern. The three in my mind are, first, the extension of liberty has involved the growth of the state. Running through is a worry that the price we pay for freedom does involve the big state, the non-Jeffersonian state, the hardly controllable bureaucracy behind the state. There is a need for vigilance where the invisible government is concerned. So I would register concern there. And I say this because we have to insure that vast areas for real freedom, autonomous individuals do remain. One of the guarantees of American constitutional advance is economic prosperity, by whatever process won and under whatever form of economy. This is a free society economically as well as politically. Second, what's come through in my listening here is that the Constitution itself, including the first ten amendments, is probably the most Revolutionary tool of all. It's quite striking that the advances that we have talked about in the last thirty or forty years have been won by the use of the Constitution in one way or another. The judges in this country have been more active and perhaps more liberal than in Britain, where live the proponents of individual freedom. Therefore, I agree that it was the first ten amendments in the Bill of Rights that are as important as the Revolutionary values in the Declaration of Independence. My final point is one that has already been anticipated by Jack Greene's discussion: public virtue. Watergate reminded us all not just of the dereliction of a duty, but of a decline of virtue in a public officer and in a number of people around him. It could only have been abetted by a slump in public virtue in the country as a whole. I would

120

Committee

1

want to see more concern than we have had thus far with education for that virtue. I referred earlier to an education for an elite. This may sound Jeffersonian. Citizenship? Is that what I am saying? Some campaign against apathy, which seems to be a problem in this country? It does seem to me that we have to go back, as Madison would have, to the Greeks and Romans, and talk about education for society, education for the civic state. There are other areas of concern, such as privacy. W e might want to talk much more about what we mean by " l i f e " . In 1 9 7 6 it's beginning to have a political significance different from when Jefferson used it in 1776. My primary concerns are the overmighty state and the need for the training and preparation of vigilance in every citizen if he is really going to be a useful member of society. Chairperson: Earlier, in a brief discussion, Mr. Edley pointed out that for significant numbers of members of this body politic there has been less than the beginning of the realization of the values of the Constitution. It seemed to him that it would be useful to note the absence of at least one. He said, " O n e of the values we should have is the right to a speedy trial." I said, " B u t that's a constitutional value." He said, "Observed in the breach, but not one applied to the reality of most people in the trials of the criminal justice s y s t e m . " Without raising the question of the accuracy of the universality of that observation, it seems that he might say, were he here, that we need to be sure that people presently excluded from the application of constitutional principles be consciously included. Religion and Speech Pole: That religion has virtually disappeared from public debate may be considered to be a great success for the ultimate ramifications of the implementation of the First Amendment. It does represent actually a much greater change than most people realize from the Revolutionary values that were held at the time. W h a t the First Amendment meant was that the federal government should not interfere with the private religious arrangements of the states, which were quite free to have established religions, as most did. At the time it was generally agreed that this was a Protestant country. In his Farewell Address, Washington complimented the American people on being united, among other things, in religion. T h a t the people are united in religion is one of the things that makes a republic possible. Now we belong to an age where diversity is what makes a republic possible. T h a t is a change. If you just hold on to what appear to be Revolutionary values, you are not understanding what you have now. There is a greatly changed set of values. Incidentally, there is a problem as to how diverse the moral values of a society can be. This is a question which the next century may have to face. Kahn-Freund: These Revolutionary values may contradict each other. The thing that comes to mind most easily when one is a lawyer

Maintenance of Revolutionary Values

121

is the clash between what is now interpreted as the principle of free speech in the First Amendment and the principle of fair trial laid down in the Fifth and 14th Amendments. Quite frankly, when I came for the first time to the United States from England, the way the press reported on pending cases was a shock. If the document which emanates from this committee is intended to make people reflect on the Revolutionary values, this is really something to reflect upon. The fact that the press is free to comment on a pending case, in circumstances where the comment may be noticed by the jury, may perhaps be a requirement of freedom of speech. But is there freedom to be as sensational in the presentation of news as one can be to increase the circulation? It seems to me that, as interpreted now, the principle of freedom of speech is simply incompatible with the principle of a fair trial. We have elaborate laws on evidence to prevent the jury from getting irrelevant information which may influence the verdict. But they can read whatever they are not supposed to know in the press. This is a fundamental issue. Chairperson: This was the critical question I thought needed to be raised. We had the enunciation of the First Amendment by certain people, enhancement of the protection of the First Amendment. But Mr. Seymour raised among his points the increasing concern of communities with pornography, which in his words was embracing the degradation of the human spirit. Now a concern with pornography immediately raises the issue of the conflict with free speech, free expression of rights under the First Amendment. Should we deal with what values should limit the application of the First Amendment? Edwards: One could easily spend all of tomorrow and the following night and weekend on the free press-fair trial conflict and the obscenity issue. Jenner: In which the bar of this country has been engaged for fifteen years? Edwards: They are such specific and intricate and difficult questions that we cannot contemplate resolving them in this brief a session. I suggest we not try to. Chairperson: But how do we deal with the conflict posed by these competing values as we go into the next 100 years. Jenner: The framers of the Constitution, despite the suggestion of Mr. Justice Black, did not think they were speaking in terms of absolutes in the Bill of Rights, the First Amendment and other amendments. I admired Mr. Justice Black, but his theory of absolutism31 regarding the Bill of Rights always bothered me. Because if you have absolutes, nothing will work. You must have some flexibility. Chairperson: Is there any significance in the assertion that, at the time of the adoption of the Constitution, we had more shared assumptions about the nature of our society and the nature of our values and the directions in which we want to go than we do now? Jenner: They had more shared values because they were creating something. 122

Committee

I

Greene: No, there were more shared values because the society was less heterogeneous, less complex. Seymour: Religion in the family played a much larger role. Tenner: But scholars say that to a great extent there weren't shared values because of the slaves and because women were denied the right to participate in the government. Chairperson: W e have to cut them out of the body politic for the moment in the determination of shared values. With respect to those who were expected to be participants, was there not a consensus about the source of values, the goals for the society, a consensus greater than any we could achieve at this moment? And, if that is true, what are the implications with respect to this long list of priorities? Edwards: The more I read of the history of the Constitution, and more particularly of its ratification debates and the origins of the Bill of Rights, the more convinced I am that the total document, the Constitution plus the Bill of Rights, was the product of widely diversified forces which were in direct conflict in many situations. They came to compromise on a strong central government, which one side primarily wanted, with a strong set of individual rights, which the other side primarily wanted. Chairperson: Do you think that quality of compromise is still possible within the body politic? Edwards: I profoundly hope so. Jenner: There is just as much of a shared value concept in the people in this country now as there was in the people back in 1776, and perhaps more. E. Wright: But it is much more remarkable today than then. I would have thought that there was then no real debate on major fundamentals. There was certainly a different emphasis between 1781 and 1787 as to whether you had a strong central government or more authority in the states. Need I go further and say there were very commonly shared values between Britain and what became the United States? If you read that study of William Benton, 3 2 a Whig loyalist, the striking thing is how many of the Whigs were loyalists and how many loyalists were Whigs. Individual Freedom Pollak: I find it difficult, if not impossible, to assign priorities. I can find a kind of triad of values which supplement one another and ultimately reduce to a central value. They are freedom of expression, and I include in that the whole range of political, religious, philosophic, aesthetic expressions; the equality value in its total range; and finally, the protection of people from being dealt with arbitrarily by the regulating forces of the society. T h e y reduce to the single central value of the society, promotion of individual fulfillment. Chairperson: going.

T h a t sums up well the direction in which we were

Maintenance of Revolutionary Values

123

There has been a remarkable agreement and recurrence of concerns among us. There were some assertions of interest articulated in a different way; to wit, a concern for the community's ability to deal with pornography. This came to be an expression of a judgment about the nature of the individual and the human spirit, and apparently an assumption about the nature of pursuit of happiness with which many among us might disagree. But it was coupled with a concern for the security of the individual, and the right of privacy, and matters with which everybody around the table concurred, including the person who couched a concern in terms of the need to control crime by decriminalization of the individual through internal control. But, again, it seemed to be a recurrence of the concern about the individual. This was expressed in other places in terms of reducing the impact of government upon the individual. We returned constantly to a reiteration of respect for those elements of the Constitution that protected the individual and the individual's expression of self and spirit. So we did arrive at a remarkable agreement about the central element, as stated by Lou Pollak, the promotion of the individual spirit. Edwards: The pursuit of happiness. Chairperson: The pursuit of happiness is where we agreed. Despite the remarkable difference in preliminary methods of articulation of both the problem and its solution, we did manage to come to a rather surprising consensus. I did not have a sense of strong disagreement among us on any issues or elements that we had identified as significant. The method of attack of course was due to the direction in which we were taken by our issues papers, to the value of equality. Some of us are not unhappy about it. Others of us may have preferred to have started with freedom of speech or pursuit of happiness. But since one must wade into that hierarchy of values, where we started did not preclude our ending with the individual, but was not as effective as if we had started with the First Amendment and its expression. It's been a pleasure working with you. Thank you very much. Jertner: Madame Chairman, on behalf of all the committee, we thank you. We appreciate very much the manner in which you conducted the meeting without a fixed agenda, permitting us to range widely. You did not restrict discussion; rather, you encouraged it, yet you did very well to keep us on track. We thank you very much. E. Wright: May I second that, Madame Chairman, and just say how sorry we are that your role in the chair prevented your really taking an active part in the discussion.

124

Committee

I

COMMITTEE II

EFFECTIVENESS OF GOVERNMENTAL OPERATIONS Chairman: Our paper* is by Professor Henry Abraham, who for many years was a member of the faculty here at the University of Pennsylvania before moving on recently to the University of Virginia. Abraham: How does one begin to talk about the effectiveness of the governmental system? There are definitional problems; there are problems of coverage. The topic of the paper is "effectiveness," not efficiency. We are concerned with the effectiveness of the governmental system; and I feel that we seem to be managing to achieve it only by virtue of a muddling through process. A basic question arises in any discussion of the effectiveness of the governmental system. What do we mean by "effectiveness"? I am not certain of what we can say ex'cept to try to find some frame of reference. Trust in Government Basic to any theory and practice of governmental effectiveness is the degree of confidence and faith that the public has in its government. I realize this is a chicken and egg theory in some measures. Perception by the public, by the electorate, or the sovereign is crucial here, and if we measure that in terms of the effectiveness of the governmental system, the answer is not a very happy one. Measured by any standard, faith is absent in all but marginal degree in our times. Public approbation, according to the latest reports, rarely if ever reflects the attitude of even one-third of the electorate. It is highest for the courts, but even there it rarely goes above a 35 percent response. At the moment Congress is second and the executive last. The other two-thirds of the electorate see government as "incompetent, inefficient, and unworthy of our confidence and trust." This is the response to a poll conducted by the Nezv York Times and CBS. That response manifests *The paper is printed in Volume I.

an absence of the essential requirement of the effectiveness of the governmental process, namely instilling trust, without which the government cannot really be responsive. That is a general and theoretical observation. With respect to some pragmatic, contemporary deficiencies of governmental effectiveness, let me suggest a few failures. They are all obvious. One is the continuing, worsening socioeconomic plight of the inner cities. It has become almost impossible to walk the streets of our cities without fear of attack. This is a failure of government to be sufficiently perceptive to protect its citizenry. Also, there is the failure to address the energy problem in realistic terms. Despite much jawboning and grandiose schemes, a people who went to the moon and developed atomic weapons cannot handle its energy problem. Government leadership seems to be absent. The unwillingness or inability to stand up to the burgeoning excesses and irresponsibilities of organized public service employees is another failure. The employees are the masters and the public, slaves. It is an intriguing development, not at all uncommon in the history of democracies. We have seen many examples of it in France and in Italy. We may be seeing in San Francisco at the moment an interesting denouement of attempts to regulate the public employee sector, but in New York City there's a surrender. Finally, there's the continuing persistent buck-passing to the judicial branch of major issues of public policy. That branch of the government is most ill-suited because, as Alexander Hamilton said so well in The Federalist papers,1 in effect, the court, after all, has no power except the power to persuade, with purse or sword being in other hands. Obviously the courts have some power. But the courts are not agencies of effective government. The judiciary is not a branch that should engage in prescriptive policy-making by virtue of the failure of the other branches to do the job. These are some of the things which evidence a lack of effectiveness in our governmental system. There is a host of others. To ameliorate the problem we have to participate. Until we get more control over our public servants, unless we insist upon accountability in leadership, we are not going to alter the present state of affairs. We will continue to muddle through. There will be many commendable public policies adopted, but by and large the response would be a negative one. How to Measure Effectiveness Chairman: How do we distinguish between a measure of the effectiveness of government and the policy preferences of an observer at any given time? Abraham: It's a matter of choice. Obviously I bring a value judgment to it. As Mr. Justice Marshall said in a recent decision, 2 these are based on sliding scales of perception. Certain things are probably beyond argument. Not being able to walk the streets without looking over one's shoulder is one indisputable proof of how government

128

Committee

II

doesn't seem to reach us. T h e energy problem is probably a bad example. This back and forth between Congress and the executive may be nothing more than politics, but obviously someone is not coming to grips with the problem. My concern is about developments in the public service sector. That's crucial to the governmental process. Reedy: Is what is being detailed here ineffectiveness of government or ineffectiveness of society itself? M y biggest objection to Dr. Abraham's paper lies in the congressional end. There, I see a number of prescriptions which, from my own experience in the Congress, would not make the slightest difference. If every one of his prescriptions were adopted—compulsory retirement of congressmen, further modification of the seniority system, larger staffs, more computerization— you would get the same legislation or lack of legislation. T h e problem is you are really not getting to the basis of the problem. Congressmen are not people who sit in seminars and discuss subjects. They represent people who think they have a vital stake in certain issues, and for whom they have to perform. When we look at the so-called congressional unresponsiveness to issues today, we must recognize that Congress is being responsive to the public mood. The lack of congressional action is due to the fact that it is a representative body. When you have a nation which is as confused and divided as ours and lacks a basic consensus, I do not see what Congress can do unless it forgets the democratic structure of government and decides as an elite group to act whether the people want something done or not. Let's take the question of public service employees. I can see the end of our civilization on this if it's pushed too far. However, what can elected representatives of the people do when they are elected by the very people who are pushing these demands? How many mayors in the United States are going to be reelected against the combined option of the firemen, policemen and garbage collectors? I am not certain that your theories of deficiencies are really addressing the effectiveness of government. One might argue that our government is too responsive. What can the government do about inability to walk the streets in safety? I spend a lot of time in South America, where the danger in walking the streets is far greater than it is here, and I have no problem. I have become accustomed to a certain level of security. Outside of Mexico City today there are armed guards wherever you sleep. The hotel owners hire them. Are we talking about effectiveness of the government or are we talking about our society? I suspect we are talking about our society. Hamilton: W e have to take into account the strong inclination in this society for that government which governs least. Street Crime Radzinowicz: Obviously crime does create a feeling of insecurity and fear. Irrespective of the statistical fact that our chances of being attacked are incredibly smaller than, for instance, dying of a heart

Effectiveness of Governmental Operations

129

attack or in a car accident, it is a psychological thing. W e expect to be able to walk the streets in a civilized country with little fear, and to feel if a certain degree of security is not produced that our government fails us. My American friends feel strongly about crime because the incidence of street robbery, certainly in the big cities of the United States, is much higher than in Western Europe, except for Italy, where the feeling of insecurity may already be heightened considerably. If it were only in the United States that this feeling of insecurity existed, then I would be inclined to blame inefficiency of government. But if the same phenomenon occurs in other parts of the world with similar intensity, then I cannot say it is the inefficiency of the machinery of justice in the United States. I must look for something else. The point is that street robberies increase all over the world. In London I used to walk quietly from my club to St. James Park at one o'clock at night. I would be a bold man today if I were to undertake this kind of adventure. Our security is still much higher obviously than yours. Therefore, you must draw upon comparative experience, because our own experience gives us a particular perspective. My second point is the complexity of the problem. It is not easy to prevent street robbery. It is a random crime committed by young people who run quickly. They select easy victims; they do it when it is dark, and run; and it is extremely difficult to catch them. The big cities, with certain racial tensions, with an opulence which exhibits itself so easily, cannot be secure places any more. We must reduce our expectations, and therefore reduce the weight of criticism of the government. I do not say that the government could not improve its methods of catching criminals more quickly, trying them in a faster way, and punishing in a way that will restrain them. These elements vary according to the machinery of justice, but the problem remains with us. Abraham: Inherent in my general outline is the proposition that we are the government. The question that Mr. Reedy, Professor Hamilton, and Sir Leon ask is, can we govern ourselves? If we can no longer govern ourselves as a society, perhaps then we will have to move to Madame Gandhi's India or adopt the Chinese approach. There is little crime in China and Madame Gandhi would declare that things are going well in India, because the government is sitting on everyone. Clark: In the last four to six years the federal government has spent about $5 billion a year fighting crime. Yet the situation has deteriorated. To fault the Congress for not doing enough in that area is certainly not appropriate. I would assume there must be something wrong with our criminal justice system if four out of five prisoners are recidivists, and the crime rate is mounting at such a rate that we cannot control it. In the last decade we improved the efficiency of the constabulary many-fold. Ten years ago we had few training schools for them.

130

Committee

II

N o w we have training in every city, in the states and in the federal government, but you can't see any improvement. Perhaps our society has changed to such an extent that we o u g h t to have some other system. W h y don't we study w h e t h e r heavier p u n i s h m e n t would have any effect? Perhaps we could experiment. W e should admit we have not been successful, despite the billions spent, and seek some other method. Mann: W h a t do we mean w h e n we ask w h a t is the federal role in law enforcement? W h e n I ran for Congress for the first time in 1968, H u b e r t H u m p h r e y and Richard Nixon b o t h were going to solve the crime problem as well as the war. This caused state and local governments to sit back and wait. It was a psychological transfer of responsibility. I found myself having to defend Ramsey Clark for his alleged soft approach. I knew that city ordinances and state laws were where the action was on crime. T h e major federal effort was the O m n i b u s Crime Control Act of 1968. 3 I am n o w on the subcommittee reviewing extension of the Law Enforcement Assistance Administration. It spent $4.4 billion during those eight years and learned virtually nothing. W e are no closer to identifying the problem, much less the solution. Congress is going to insist that f u n d s be spent for research, demonstration projects, and evaluation of existing programs, because there has been inadequate information as to successful programs. T h a t is an appropriate federal role. But the legislature failed in not overseeing the LEAA program for results; and of course the executive failed in not effectively administering the program. W e are so far from k n o w i n g w h a t the answers are on corrections that we are going to start warehousing people and forgetting about rehabilitation, which has only a 20 percent success rate. T h e criminal justice system, the sentencing process, speedy trials—we are approaching these things like amateurs. W e need a better evaluation system. Oakes: Some basic research on cities remains to be done, as opposed to research primarily of the criminal justice system, which needs it also. W h y have we become so complex and so a n o n y m o u s that the neighborhood spirit, which helped catch law violators and created respect for the police, is gone? W h y have we gotten into a situation where the city is simply an a n o n y m o u s jungle? W e have spent money on temporary panaceas. Until we spend money identifying the underlying problems of the city, we are wasting it. Feerick: O n e area that troubles me, as I compare our laws with those of other countries, is g u n control. There is some basis for believing that effective gun control legislation might reduce crime to some extent. Subcommittees of b o t h houses of Congress have concluded that there should be more effective gun control legislation in this country. Yet special interest groups commit a great deal of money seeing that effective legislation does not result. W h y is it that C o n gress cannot come to grips w i t h that? Despite the studies done, we still have n o legislation on the subject.

Effectiveness of Governmental O p e r a t i o n s

131

Special Interest Groups Friendly: I don't believe that the mood of the people is to resist all legislation. T h e people would overwhelmingly support a better gun control law. T h e people want an energy law. I read that some people are saying that importing Arab oil is the best solution and are not too worried. But I also read that the Cubans have moved to Somalia, where they can seal the exit to the Persian Gulf whenever they please. T h e trouble is not with the people but that there are so many disparate groups, ranging from the oil companies, on the one hand, to the most extreme environmentalists, on the other, who oppose any energy law. Professor Gilbert said that one thing Congress is good at is passing tax laws. Well, they haven't passed a comprehensive tax law since 1 9 5 4 . Everybody knows the present law has all kinds of trouble in it, but consider again the disparity of special interest groups. T h e oil and gas producers don't want the depletion allowance touched, although Congress summoned enough courage to do something about that. T h e corporate executives got the 5 0 percent ceiling on earned income. Others are interested in preserving the deduction for interest on personal borrowing. I don't suppose any one of those groups could prevent a new tax law, but combined they can. O n e must feel sympathy for the individual congressman who has to get himself reelected. Professor Abraham suggested revitalization of the party system, which would help. T h e lobbies would go to work on the parties, but would be a lot less powerful. It was when they put their weight to bear on the individual congressmen that they licked the gun control law. Maybe longer terms for the representatives would help. But until we solve the problem of special interest groups, we are going to be in a state of legislative paralysis which threatens our continued existence. Hoxie: W h a t Judge Friendly is saying with regard to special interest groups on domestic policy also applies to foreign policy. A glaring example was the action of the Congress in cutting off aid to Turkey in order to register displeasure over the Cyprus issue. W h e n you ask members of Congress why, they say because of our Greek constituency, rather than what is the national interest. Turkey is a vital area, particularly to N A T O . W e were forced to leave some twenty bases in Turkey as a result of what probably was a well-meaning intention of Congress. Similarly with Senator Jackson and Congressman Vanik, it may have pleased some of their friends that changes in the trade law were made to encourage a relaxation of Jewish emigration from the Soviet Union, but it worked exactly the opposite. In both foreign and domestic policy we face an overwhelming influence of special interest groups to the detriment of the national interest. Reedy: O n the gun control law, if you wonder why you aren't getting it, question the individual congressmen who voted for it the last time it was before the House. M o s t of them are thankful they survived. It almost defeated Mike Mansfield. It defeated quite a few in Maryland. All of the outdoorsmen and hunters in the Bronx were

132

Committee

II

outraged that somebody was going to t a k e their sport away f r o m them. There is no sense deploring the lack of a gun control law. You are not going to get a gun control law until you get intensity of feeling for it that at least matches the intensity against it. T h e polls are absolutely worthless on this point because it's respectable to be for g u n controls. It's manly to be for guns, and as long as that is the case, you are not going to get a gun control law. This is democracy in operation. Your complaint is not against the Congress here; your complaint is against democracy. O n this question of national interest versus special interest, one has to be careful, A long time ago I learned w h a t the national interest is: anything I am for. I learned w h a t special interests are: anything I'm against. If we go around this table and ask those w h o are not academics, or not part of the legal establishment, you are going to find that the national interest to a m a n u f a c t u r e r is quite different f r o m the national interest to the head of the N A A C P . I will wager that Mr. Woodcock has quite a different definition of the national interest than does Mr. Meany, and there you have two people w h o theoretically have the same base. T h e most we can hope for is a consensus. W h a t bothers me about our country today is not that there is a lack of dedication to national interest. Everybody is dedicated to the national interest. W h a t bothers me is there is no consensus on w h a t the national interest is. There is no basic set of touchstones. W h a t are those words of Yeats, " T h e center will not h o l d " ? T h a t ' s w h a t ' s really happening to us in this world. T h e best of us are filled with endeavors, and the worst of us with passionate conviction and national interest. Respect for Public Officials McKay: In February 1976 I participated in W e s t Berlin in a conference called " C o m p a r a t i v e Criminal Sanction." T h e purpose was to determine whether the W e s t e r n European countries really have done better than we have in this country, as m a n y of us believe, and, if so, to find out w h e t h e r there is any way their experience can be translated into the criminal justice system in this country. W e came up with inconclusive answers, but we identified a n u m b e r of areas where it might be useful to have f u r t h e r comparative criminal study. W h a t was most striking to me, however, was that in W e s t e r n European countries, particularly the Scandinavian countries, the Netherlands, West Germany and England, they do not have to worry, as much as we do in shaping their criminal justice systems, about public reactions. W e operate differently in the relationship between our legislatures and the public. In Europe the g o v e r n m e n t is more in the hands of experts, and people follow, not lead. I do not k n o w how we can restructure our system to m a k e possible a similar reaction in this country. Cabranes: W h a t you are saying, if I u n d e r s t a n d you, is that there is a difference in W e s t e r n Europe as to those w h o hold power. McKay: T h e y turn to the criminologists, for instance, in the crim-

Effectiveness of Governmental Operations

133

inal justice system; whereas in this country the criminologists are largely disregarded. Cabranes: A major cause for concern is the disrepute of public office holders. In general, the country does not have a high regard for elected officials. Indeed, the fact that only one of the members of this committee is a member of Congress is a good indication that we don't believe public office holding is high in the hierarchy of public values. Wechsler: I can assure you other invitations were issued. McKay: I disagree with Joe Cabranes on that. I have the greatest confidence that the senators and members of Congress are individually well qualified in terms of practical experience and education, and, in general, well motivated for the national interest. Mann: We can recall the slogan of a couple hundred years ago: if we don't hang together we will surely hang separately. The successful efforts by the President and by the press in recent years to attribute to the whole Congress the most extreme statement by any one member tend to cause each of us to want to dissociate ourselves from the Congress as a body. So we go home and we are therefore more responsive to our constituents. I am reminded of something that happened at lunch in Washington the other day. A congressman walked up to the table and said, "Well, fellows, I just came from my district and everybody's pretty well satisfied with me, but they are not sure about you other guys." Congress is nearer the image of America than you think. Unfortunately, efforts to identify Congress in the eyes of the public as a monolithic conspiratorial institution have succeeded. In the parliamentary and European situations, or in the strong party situations that we referred to, you could hang together better. In our case we want to disassociate ourselves from the company in that it is "too responsive." We can define that term in different ways, and that's what is wrong. We thus tend to be too responsive to perceived parochial concerns and not responsive or responsible enough with reference to national interests or goals. Chairman: Are you saying then it isn't just Presidents who run against Congress, but congressmen who run against Congress? Mann: Absolutely. Wechsler: What about giving attention to the structure of the constituency? The size of the House is subject to legal and constitutional dimensions. This also recently had a bearing on the drawing of district lines. Would anybody think that reduction in the size of the House would help, so that the constituency would be larger? Smith: My own experience has been that rarely is the majority right. We ought to make government hard. The rights we ought to protect are minority rights and not majority rights. Effective government may be one that does not always move where the majority is. I have now reached the stage in life when I think we need a plan whereby our elected representatives are not trying to vote by poll, but instead by judgment. We could do that if we had a unicameral federal legislature in which congressmen were elected on a one-man, onevote basis, served ten years, and were not eligible for reelection. 134

Committee

II

Abraham: Mr. Reedy pointed out that, by and large, Congress is representative of the public. I have always defended that. The average individual congressman is bright and able. There are some exceptions. Reedy: Quite a few. Abraham: However, you withdrew somewhat from your encyclical; namely, Congress is always responsive to the public. Your gun control example doesn't persuade me at all. You have to admit that gun control is unachievable largely because of the techniques of lobbies and pressure groups. Reedy: I would dispute that. Abraham: The American public still does want some sort of gun control. If you put it on a ballot, with pictures, you would get a majority at least for the regulation of some guns. We should indeed look towards the lessons of the comparable government structures abroad, but we must also point out that in Europe legislatures have a much easier time because the countries are more homogeneous. When you deal with an electorate that is homogeneous, intelligent, well trained, and with generally the same outlook on life, it doesn't make such a difference whether it believes in the expertise of the leaders or not. They all understand one another. We can't lose sight of the fact that effectiveness of government is attainable to a considerably greater degree when you have a homogeneous society. It makes life less interesting, but perhaps ours is too interesting. Oakes: Which is another way of saying that instead of there being a national interest, there are many interests. Smith: Should you be able to get a law, such as gun control, simply because most people want it? Shouldn't it be hard? Abraham: Yes. Our courts are helping along those lines, although recently the courts have become majoritarian. Hoxie: I was glad to see Mr. Smith emphasize in his comment regarding Congress the virtues of judgment. In the final analysis, that's what we are seeking to strengthen. In his paper, Professor Abraham made reference to Alexander Hamilton's observations on the power of the executive with the sword and the Congress with the purse. Hamilton indicated that in the final analysis the value of judgment may be more powerful than either the sword or the purse. Many people feel we ought to make the Congress and the President more responsive, one to the other. One such proposal is to have the House, Senate and President all run for four-year terms. It would preclude members of the House from having to start running virtually the day they enter office. They could concentrate more on policy. It would mean that a President would not almost inevitably lose in two years what little support he may have garnered with his election and built towards a legislative program. Man n: I don't want to pass this gun control issue without using the word "emotional." Gun control is one of those emotional issues where you know opponents will be out beating the bushes against you and will affect up to 8 percent of the vote. You know that also

Effectiveness of Governmental Operations

135

with regard to "right to life" and to one or two environmental issues. You are sensitive to those situations because they make a difference in your election. One further thought. The Congress doesn't do well on the energy issue because nobody knows what to do. There is no consensus concerning the solution, quite apart from political considerations. Congressional Oversight Clark: Congress from time to time has created oversight committees. Why not have a joint committee on oversight, composed of the leadership and charged with the duty of seeing that monies appropriated are properly expended and laws are properly enforced? For example, over fifty acts have been passed by Congress since Roosevelt's time authorizing the President to act in certain emergencies, and none of them has ever been repealed or changed. A President can use those acts in dire emergencies to do things perhaps Congress might not have intended. Under one of them Truman was going to seize the railroads and put them under the Army. 4 Why are there these fifty old acts? Why don't we put the burden on the President to show why they are still necessary? The Congress passes laws now requiring the executive to file an environmental impact statement before it can build something. I sit in the circuit courts and sometimes in the trial courts, and see cases pour into this funnel called the court system. Congress keeps passing laws but they never increase the size of the spout on the funnel. It takes a case three years to get to the courts. Mann: We just passed another speedy trial law. Clark: One passed not long ago, requiring trial in ninety days. As a matter of fact, except the civil cases, which lag maybe two or three years behind, most of our federal courts are current to ninety days. An impact statement would cut down the number of laws and possibly refine those that were passed. It would focus on where the problem is. Chairman: You are talking about a congressional impact statement similar to a report that accompanies a bill? Oakes: Impact on the judicial system? Clark: Impact on all the systems. When a bill is introduced, it goes to the impact committee to determine costs of such and such a program. Some say an impact committee would delay legislation, but we have enormous delay already. You could have an impact statement prepared while the bill is waiting for a committee to consider it. Mann: I would agree that both things are needed. It has been estimated that each congressman costs $488,000. Isn't that awful? Representative government is costing my constituents a dollar a head a year. For me to favor the kind of staffing required by your suggestion is unthinkable. Clark: Why not have each congressman take one person off his staff and give it to the oversight committee?

136

Committee

II

Mann: W e need to add several hundred others. During the impeachment proceedings I was appalled by the public ignorance about how our system works. Now the swollen presidency is evidence of how they don't appreciate the representative form of government. Clark: It looks as if you and I haven't taught them. Mann: How? I'm encouraged by a movement back home. T h e fundamentalist preachers took over the Republican party in Greenville County, South Carolina two weeks ago, saying we need to get involved in politics. I've been saying that too. It is an encouraging sign that the churches now recognize that the First Amendment doesn't keep them from being involved. Public involvement is sorely needed. W e hoped that the eighteen-year-olds would take an active interest, but they have not. Public education is sorely needed. Hamilton: Professor A b r a h a m used a good political science term, "muddling t h r o u g h . " W e have " a d h o c ' d " our governmental adaptation to some vast major changes in this society over the last couple of centuries. W e ' v e seen a tremendous change in the way people run for the presidency, reflecting the new technological innovations. But we haven't seen much in the way of political structures adapting to the new technological and demographic changes in our society. While I am struck by the continuity and the strength of tradition of our institutions, how anachronistic many of them seem in view of tremendous technological and demographic changes. W e have a highly automated industrialized society. W e have experienced a fantastic migration in our society in the last fifty years. W e have seen a fantastic increase in the politicization, and therefore the expectation, of large numbers of new groupings in our society. O u r political institutions, particularly the Congress and presidency, have substantially changed structurally to accommodate these vast innovations. Treedman: I want to underscore the question of expertise in government. Many thoughtful people believe that the American experience differs dramatically from the European experience because we have not created in our governmental bureaucracy the degree of expertise that the European nations have. Richard Hofstadters's important book, Anti-Intellectualism in American Life,5 shows how the anti-intellectual rhetoric of American life has often been spoken even by the intellectuals themselves. M e n like W o o d r o w Wilson made considerable political capital campaigning against expertise in government and against excessive reliance upon intellectuals. I wonder, as I hear people talk about the increasing complexity of our national problems, whether they are saying that greater expertise is needed to solve them. If they are, what makes them think we can make expertise work in government? O u r major experience in trying to do that is the federal administrative agencies. I don't suppose that anyone would strongly defend the proposition that the American administrative process has invariably represented the triumph of expertise over social dilemmas or social difficulties. T h a t experience demonstrates that often it takes government a generation to learn how to apply a particular expertise effectively, and by then the problems have changed their configura-

Effectiveness of Governmental Operations

137

tion. Moreover, how does one make reliance upon expertise consistent with the norms of democratic government? Hoxie: Getting back to the presidency, Mr. Justice Clark has put his finger on an area of genuine concern. In all discussions regarding the so-called imperial or swollen presidency, there's been little attention to the declarations of national emergency. There have been four major declarations of national emergency, including FDR's first one of March 1933, which have not been repealed. Immediately after the Korean War turned sour, Truman declared a national emergency. There were two that followed in the Nixon years and all four still exist. This has become a concern of the Senate. The irony is that sometimes the congressional antidote almost seems to further change that sensitive balance between the legislative and executive. The proposed national emergencies bill may do this. As another example, the antidote of the War Powers Act, 6 in many persons' opinion, has actually enlarged the President's war powers. On the other hand, even with these declarations of national emergency, the founding fathers did not create a government that would readily get itself completely out of hand. What happened in 1952 when President Truman declared a state of emergency? He sought to exert authority as commander-inchief to seize the steel mills. Mr. Justice Jackson in his opinion said that the President didn't have the authority as commander-in-chief, with all his pronouncements of national emergency, to seize the steel mills.7 Electoral College Oakes: What overall structural or institutional changes can we propose that might increase individual participation in government? Perhaps the electoral college is wholly anachronistic and should long ago have been eliminated. Individual involvement starts with voting for the highest office in the land. But as long as we have an electoral college, the individual is going to feel one step removed from electing the President. Feerick: I second that. After all, we speak of the President as having a national constituency. The electoral college procedure has built into it some fairly objectionable features, such as the House of Representatives having to elect a President in the event of a tie. A strong case for reform has been made. Chairman: By the American Bar Association. Feerick: Among others. Chairman: I don't think the abolition of the electoral college would have any bearing on people's feelings or extent of their participation. McKay: I want to say a good word for the federal bureaucracies and the administrative structure. It may not seem the best way of doing the government's work, but it's the only way. In a society as complex as ours has become, somebody has to do the work. I would much rather reform the administrative bureaucracy, if that's possible, than suggest we do away with it.

138

Committee II

Freedman: Nevertheless, it is often difficult to defend the federal bureaucracy as having applied expertise effectively to social dilemmas and social problems. We have all seen circumstances in which Congress has indicated support for what it wants done, only to find that the particular agency involved then generates a momentum that goes beyond the electoral and legislative processes. McKay: I would dispute that. Wallace: How would you see using the experts? McKay: Take for example the Securities and Exchange Commission, which uses experts fairly well. W e may disagree with some of their conclusions, and some of the details of them, but the SEC has a body of experts who draw upon the vast experience and best testimony that's available in this country on the subject. I suspect the same is true of other agencies, though some may be at fault. Cabranes: I do not doubt the importance of experts and expertise, but a much larger question is the erosion of respect for our governmental institutions. Our best people are simply not expected to run for public office. When they do, there is widespread surprise. Judge Friendly is a person whose career, public and private, is one of great distinction, but I daresay he never once considered running for elective office. Friendly: You are right. Cabranes: In this country we have very little respect for people who hold public office, particularly those who are elected to office. Elazar: Three things have been mentioned so far that involve some kind of reform, and all three bring me to a skeptical position. One is electoral college reform. Second is the use of expertise. The third is governmental modernization. W e all have heard them before, and while I see the importance of symbols, these have come up against some hard realities. The drop in voting for the President doesn't have to do with the fact that people are discovering the electoral college is a barrier between them and the candidates. If anything, they seem to want more barriers between them and the candidates, and that's why they are not going to vote this fall. That's been a secular trend over the past several elections. It is not a disrespect for the institutions. If anything, the last few years have proved there is a high respect for institutions, so high that here in 1976 we hold a conference, not on the Declaration of Independence, but on the Constitution, which properly shouldn't be commemorated for another eleven years. Everybody in the country is talking about the Constitution and not the Declaration. The problem may be in the candidates, the parties and the times. People don't feel that alternatives are being presented to them. One can hardly call them fools; nor will artificial devices for stimulation of their interest, including technical reforms of things which have not caused great public problems, change this. The same thing applies when you are talking about expertise. We have come through a period in which there was a huge failure of the one set of experts whom we relied upon as secular priests, the econ-

Effectiveness of Governmental Operations

139

omists. Which expert has the expertise we should be following? I challenge any partisan of expertise in any country to suggest which experts we should choose. The same thing with modernization. I used to take pride when I went abroad in how efficient Americans were. Now we are reaching paralysis as a result of overreliance on technology, and our efficiency is dropping. Other countries that are historically inefficient have managed to approach us a little bit. To introduce technology into the system of political decision-making, as the basis for designing institutions, could only have the same result. There is no reason whatsoever to believe that anything different will happen. Political Responsiveness Goodman: One criterion of effectiveness, mentioned from time to time, is political responsiveness. The ineffectiveness of government has been thought by some to be indicated by the failure of Congress and our federal institutions to give the majority what it wants. I am not sure that point has been persuasively made. In some instances the majority doesn't get what it wants because a combination of minorities defeats it. In some instances a single intensive minority, as in gun control, defeats it. Whether one can say this is an indication of the ineffectiveness of the institution, or an indication of the ineffectiveness of the society, or an indication of ineffectiveness at all, seems to me a moot point. What Congressman Mann said about his constituents— they think he is great, but Congress is terrible—is a general phenomenon. It tends to cast doubt upon the evidence that Henry Abraham cited that the public is generally profoundly disillusioned with Congress as an institution. It is true that the average American has some contempt for politicians in the aggregate, but he probably thinks quite well of the politician as an individual. Congress as a decision-making institution is basically politically nonresponsive because no individual member of Congress ever has to answer to his constituents for what Congress as a body does or has failed to do. It is largely its failure to do things that makes the public dissatisfied with congressional performance. Each individual congressman answers only for what he does. Largely, he tries to do that which will maximize his chances for reelection. He will probably lean to the side of inaction. And the net effect of each individual congressman's doing what will maximize his own reelection chances is that Congress as a whole does that which is least satisfactory to the public as a whole. Perhaps there ought to be some method by which we could make individual congressmen responsible politically for what Congress as a body does. That sounds a little like the parliamentary system of strong parties and party regularity, and like Professor Wechsler's suggestion that we reduce the membership of the House of Representatives. Those steps might tend to equate the individual member's performance with the performance of the body. It is troubling that this central pivotal institution in our government is politically not held responsible for its collective action.

140

Committee

II

Hoxie: T o briefly respond to Judge Oakes on the electoral college, since this is a specific reform, with some hesitation I agree that the electoral college may have outlived its usefulness. It was inspired, not just by a distrust of the people, but by a view that illustrious electors would select the best possible persons for service. Its other inspiration was the federal principle, which may still be valid, of voting by state rather than by popular vote. Moreover, if we go to a popular vote, we certainly are going to invite a splintering of parties.

Congress and Consensus Smith: I want to point out that effectiveness in government is not responding to majority will. The Constitution itself was a compromise. A minority can block, and I subscribe to making it hard to override minorities. I don't believe anybody here believes that the majority is always right. We might well look at that basic principle and see if we want to tamper with it. For instance, in case of a tie in the electoral college, should the election, instead of going to the House of Representatives, go to a direct vote of the people? There are all kinds of things that we can tamper with. Oakes: The electoral college, or the abolition of it, is not a pet project of mine. I was trying to get the discussion focused on how we get greater public involvement in government. There are any number of tools and mechanisms. We have to first face the question whether more public involvement is desirable. Reedy: That is a strange premise. For a long time there has been a rather respectable amount of opinion, with which I do not agree, that there should be less public involvement in the government. A whole foreign policy operated for about forty years upon Dean Acheson's thesis that foreign policy was none of the people's business. Vandenberg's statement about politics stopping at the water's edge always struck me as odd. You can't automatically assume that everybody thinks greater public participation is the answer. Many people don't. Chairman: Walter Lippmann was one. Reedy: Yes. He set aside certain areas in which the public, at the most, should be allowed to acquiesce. Chairman: Yet, you argue, do you not, that the effectiveness of democratic government is in some sense bound up in its popularity. Abraham: I would be satisfied if policies were generally tolerable. Chairman: That's an important distinction, because you can tolerate something without actively approving of it. Toleration is measured by lack of unrest. We don't have street mobs in this country. Is public acquiescence an adequate measure of effectiveness? Then, it seems to me, you would have to say that the Constitution as it stands right now is highly legitimate, and therefore by this standard highly effective. Abraham: We did not say it was not legitimate. We just wanted to underscore certain improvements which seem to be necessary or certain ameliorations which would make the public happier. Chairman: Would the pursuit of any particular energy policy tend to increase the acceptability of governmental institutions? Congress-

Effectiveness of Governmental Operations

141

man Mann argued that there was no consensus with respect to an energy policy. My conclusion would have to be that until such consensus exists, the capacity of the government to adopt a policy would decrease its acceptability. Eulau: The issue is whether the presidency is conducive to creating the consensus. If you start off with the assumption that we are living in a highly complex, highly pluralistic society, you can easily come to the conclusion that the present institutions do an enormously effective job in bringing about consensus. One must operate on the assumption that there are two majorities, the presidential majority, which is created every four years, and the congressional majority. Tinkering with the congressional election system would not make any difference. That is what bothers me about Professor Abraham's paper. In spite of enormous decline in popular trust, the institutions are reasonably effective. Look at any other system, the British parliamentary system, the Italian system, the Soviet system. Is their legislation any better? What criterion do you have to evaluate the relative value of legislation? Inflationary rates range from 8 percent in this country to 350 percent in Argentina. Dictatorial regimes are apparently as ineffective in stopping inflationary rates as the pluralistic system under which we operate. However, what really worries me in the Abraham paper is his treatment of the committee system. You just cannot compare the House Labor and Education Committee, Agriculture Committee and Government Operations Committee. They work on different tasks, have different functions and operate differently. They are composed of different people. It's an expensive and demanding operation. It takes maybe eight or ten years to develop an energy policy. Obviously if you want to develop a policy tomorrow, then you have to establish a dictatorship. That would be most "effective." Hamilton: Are you saying you cannot systematically alter the congressional committee system? Eulau: The Education Committee was so composed from 1948 on that until 1964 you never could get through an education bill. Why? Because the churches didn't want federal participation in secondary and higher education, that's why. The Agriculture Committee is composed of people who are in the agriculture business, and in general is doing what the constituency wants it to do. When we speak of effectiveness, we have to introduce a variety of dimensions in time and space, the size of the country, on the one hand, and the time it takes to develop the consensus, on the other. How long does it take? In foreign relations, Congress has been less involved because often the time dimension is short range. Decisions have to be made quickly. Congressional operations are not well geared to quick decisions; they are geared to long-range decisions. Reedy: There are two standards here. One is, do we have effective institutions if we can create a consensus? Or do we consider them effective if they can take a consensus and operate with it? Wallace: If we are trying to define effectiveness of institutions, 142

Committee II

doesn't that also have to do with the implementation of legislation and policy? That is implicit in the Preamble to the Constitution. It is just not the passing of legislation. Reedy: Of course. A congressional bill is just a hunting license. Congress passes a bill, and somebody's got to go do it. Wallace: That's why it is ineffective. Eulau: One has to talk about this in terms of the total range of issues. Gun control is of minor importance compared to energy. To put them in the same category is ridiculous. W e know why the gun laws don't go through; we don't know why energy legislation is not passed. Friendly: If you take the view that there has to be a consensus before Congress can do anything, you are bound to suffer terrible defeat. If that had been the attitude in Philadelphia in 1787, you never would have had a Constitution. There were four or five different views at least, perhaps there were as many as the delegates, but they were able to work out a compromise. To be sure, they were operating under both easier and more difficult circumstances. We know we are going to have an energy program. The question is, are we going to have one in 1977 or 1982? The American people have every right to be critical of Congress and the President if we don't have one in 1977. That's what these institutions are here to do, to work things out. I was interested in the remark that we don't know enough about our legislature, that we actually don't know our representatives. In my earlier days, we knew the names of the people who authored the important amendments to the Interstate Commerce Act. We knew about Senator Elkins. We knew about Senator Hepburn. Those were people who had the guts and the willingness to work. The ability to get on a committee, to get the votes. They were known throughout the country. Why isn't that happening today? I am sure the people in Congress are just as good, probably better. Is it because of the failure of Congress to legislate that we have so few great pieces of legislation? The trouble isn't with the acts that Congress passes; it is with the ones it doesn't pass. Elazar: In earlier days, high school teaching involved memorizing the names of the Tariff Act and other great acts. Nowadays, we hardly bother with the date the Declaration of Independence was adopted. Then, the media did not focus attention on the presidency and claim that the President authored all legislation as is the case now. Also, it is not that there is less legislation now, so that there are fewer names, but that there is more. In those days fewer major acts came out of any session of Congress, but they were landmarks. Today there is an abundance of legislation, but of questionable quality. Cabranes: To go back to the test of effectiveness, we all know the cities of this country are falling apart. Our major unsolved problems tell us something about the effectiveness or ineffectiveness of the national government. The decay of our cities and the absence of an energy policy are examples.

Effectiveness of Governmental Operations

143

Chairman: How far would you be willing to push that? Would you for example give the government credit for our high GNP? If you are willing to give them a demerit for other large societal happenings, why don't you give credit in the same way? Cabranes: I will be happy to. In addition to the question of the cities is the fact that such a large part of the economy is controlled by organized crime, a fact no one denies. No one wants to talk about it because it is an embarrassment. There is no elected or appointed public figure in the country who is willing to make organized crime a matter of primary concern. We are dealing with the siphoning off of billions of tax-free dollars from the economy. Organized crime is a force which corrupts a large part of our civilization. Chairman: The markets for organized crime are created by law, aren't they? Cabranes: That's right. A large part of the society is run by outlaws. Those are two major problems. There is no public admission of the problem, and the government can't deal with it. These are fair indices of whether we are coping. Eulau: When I hear the phrase "failure of Congress" I don't know what that means. Failure of Congress to act means there is not enough support somewhere in the system; in other words, in the society. Abraham: The failure of Congress to act by standing by itself is obviously not an answer. If I propounded that as a criticism, I deserve to be censured for it. If I say failure of Congress to act in specific areas, at least I have something to talk about. The U.S. Conference of Mayors is as strong a lobby as you can find in the country and is well represented in Washington. Why don't they get more things done? Because there are other forces, obviously, which counteract the U.S. Conference of Mayors. Even more complex than that, there are other congressional policies that have created all the abandoned houses. I am not familiar with New York, but in Philadelphia, every single abandonment means some family got better housing. What is being abandoned are houses which cannot be fixed up. I am not talking about the social consequences of large areas of the city being abandoned. It is a problem of success, not a problem of failure. The reason you don't get abandonment like this in Paris is because in Paris a third of the population is willing to live without indoor plumbing, which we never talk about when we make the comparisons. The Court System Radzinowicz: This committee has been thinking about criteria by which the effectiveness of a governmental agency can be measured. It is attractive to have such indicators, but I have reached the conclusion that we simply cannot evolve five or six indicators by which we measure the effectiveness of an agency. To give again an example out of my own field, you can have a country where crime has been reduced or remains stationary, but it is because the freedom of citizens has been drastically curtailed. They have really no opportunities to commit 144

Committee

II

crime. It doesn't mean that the government is effective. T h e governm e n t has produced this effect by curtailing certain other marginal or fundamental rights in society. W e can survey certain agencies and point to certain limitations and deficiencies. If the defects are many and grave, we can say the agency is passing through a crisis. T h e agencies which are underdeveloped are the crime control agencies. Felix Frankfurter and Roscoe Pound said, in their famous Cleveland Report of 1 9 2 2 , 8 that the U.S. criminal justice system of the 20th century relates almost to another country. T h i s is still true. All the study commissions reveal fundamental limitations in the agencies concerned with crime control. It may not be the fault of the agencies. It may be the complexity of the problem itself. But if the founders of your great country would come today, they would say, " W e l l , here we are disappointed." It interested me that there's so little done about the problems of crime by the Department of Justice. Looking at all the departments going back many years ago, I would say that the Justice Department, whose power is increasing, becomes a vulnerable indicator of many problems of society. Abraham: T h e judicial branch, with the Supreme Court at its apex, has been more effective in doing its task, as perceived by the public, than either of the other two branches. However, there have been two or three major problems: for instance, the judiciary's role in communicating its decisions as well as its functions. T h e American public frequently does not understand just what it is that the judiciary has done. I refer now to Chief Justice Warren's statement at the time of Brown v. Board of Education,9 which he repeated to a group of my students at the University of Virginia a year before his death. W h e n he was asked, " D i d you write the opinion, s i r ? " he said, " I wrote every blessed word of it." And the student said, " W e l l , sir, that was relatively short, wasn't it? It was so complex a m a t t e r . " And he said, " Y e s , son, that was relatively short because it had to be. I had to get it across. I had to communicate. And the public will not read anything more than the newspapers can print on one page. And if you will rem e m b e r , " he said to the student, " t h e New York Times printed the whole thing on one page. I wrote every blessed word, and I can say we can be proud of it." He did get through. It is enormously significant to establish lines of communication. However, the Court failed to get through the clear message that Justice Black attempted to convey in Engel v. Vitale.10 It too was a short and pithy opinion, whatever you may think of its contents. But the press had erroneous headlines about doing away with religion and prayer. It took Justice Clark's opinion in the Abington Township School c a s e " to clarify the issues. T h e communication factor is important, because in the final analysis the public does look to the Court to save the country in many ways, while of course lambasting it from pillar to post. Ultimately though in United States v. Nixon,12 the public looked to the Court to draw the line. T h e public had seen a magnificent display

Effectiveness of Governmental Operations

145

of effectiveness by the House of Representatives, although I wish the House had gone all the way. The judicial branch has always been regarded as the focal point of the constitutional constellation. But of course there are far greater problems with the effectiveness of the judicial branch than mere lack of communication. They fall into two categories. One is complex, although it can be stated briefly, the question of line-drawing between judging and legislating. The most vexatious role in the judicial process, the most misunderstood, the most crucial, is the importance which is often given to value judgments. No wonder then that such an intriguing work as Professor Wechsler's "Neutral Principles" 13 is still used a great deal. One of the most intriguing elements of this vexatious problem is that erstwhile advocates of judicial activism now advocate restraint. I was amazed by Louis Lusky's recent book, By What Right?14 in which he outlines a total denouement from his erstwhile perception of the judicial role. He has come full circle from once advocating justified judicial activism to now discovering that the courts are doing too much and getting into difficulty. The other issue is concerned not so much with the high court, but with the lower courts too. If you want to understand either the effectiveness or lack of effectiveness of the judicial process, look at the lower courts, in particular the federal trial courts. They are doing most of the work and causing most of the grief for which the public blames the Supreme Court. Our system, to be truly effective, needs some major surgery. The surgery is needed at that level of the process of the judicial function. For example, at the trial level there have been increasing doubts which have not been alleviated even by the successful denouement of such major events as United States v. Nixon. I've had increasing doubts about the validity of the adversary process. I'm not at all sure we should continue to place our faith in the resolution of major constitutional issues by the adversary process. Should it not have been possible for someone to stop the United States v. Nixon denouement without having to go to the courts? There are many other questions which present themselves, such as the role of the judiciary, the nature of the courtroom proceedings, the perceptions of the juries, and the ability of juries to render fair verdicts. Another problem which the Chief Justice has repeatedly expressed is the question of jurisdiction and overloads. We discussed how Congress mandates new policies which necessitate new judicial involvement, but does not increase the number of judges. I'm more concerned with the changes of jurisdiction. The Chief Justice speaks at least two or three times a year of abolishing three-judge federal district courts, 15 doing away with the almost comical diversity of citizenship requirements. Another problem of the judiciary is certainly court staffing. In order to make this a perfect judicial world, the legal framework, both in substantive and procedural terms, should probably be closely examined in other areas as well: the exclusionary rule, standards of

146

Committee

11

proof, bail, counsel, self-incrimination, juvenile courts, and so forth. W e are talking about the most effective branch of our government, that branch in which I am willing to place the fate of my civil liberties more than in any other, and that branch which preserves the greatest constitutional safeguards. But that doesn't mean we should not examine it and propound certain changes. Judicial Appointments Cabranes: Before getting to some of the issues you raised, can we deal with the question of appointments? You indicate the importance of merit and competence in appointments, but find something wrong with considerations of geography, race, sex and religion. You indicate that the judicial branch is not intended to be, nor should it be, a representative body. I submit that this viewpoint is wrong. W e may get agreement that a President should appoint meritorious judges and competent judges, but these appointments need not be, as they say, "on the merits." Charles Evans Hughes was meritorious. William Howard Taft was an intelligent person and perhaps deserved to sit as Chief Justice. Earl Warren was a meritorious person. But none of these gentlemen was appointed "on the merits." I would state the proposition that good politics is inclusive politics, and that there is nothing wrong with the notion, for example, of a Jewish seat on the Supreme Court. It embarrasses some people, but it certainly does not trouble me. I don't mean that a particular seat has to be a Jewish seat. But there is nothing wrong with the notion that the Supreme Court ought to be a place in which there is a black justice and a Jewish justice. If we go back to the 1950s, you will recall that the appointment of Justice Brennan was widely regarded as an appointment of an Irish Catholic to the bench. There's nothing wrong with that, assuming that the person is meritorious and competent. It's not a bad idea to consider questions of race, sex, religion and geography in appointments to the bench. Chairman: W h y is it a good idea? Cabranes: It's a good idea because it gives people confidence in the system. In a society such as ours, it's possible to appoint to the Court of Appeals for the Second Circuit meritorious persons, all of whom are white Protestants. But it would not give the people of Connecticut, Vermont and New York a sense of confidence in the judicial process to know that there is no Jew, Irish Catholic, Italo-American or black on that bench. Judicial Independence Feerick: I'd like to put my bias on the table right at the outset. Professor Abraham said that there's no need for change apart from some areas of jurisdiction and maybe some reforms in the adversary process. The fact that the judiciary has engendered the respect and faith of the American people is reason for us to go slowly about making changes in this area. What disturbs me is the increasing assault on the independence of the federal judiciary. I'm personally disturbed about

Effectiveness of Governmental Operations

147

the proposals of the organized bar, as well as some members of Congress, that would set up commissions to remove federal judges for other than impeachment causes. I'm disturbed about the whole area of judicial pay. I also question the extent to which the Courts of Appeals and the Judicial Conference should regulate and supervise the conduct of our lower federal judges. We've had a good system because of the independence of our federal judges. Clark: I applaud that. Having had something to do with two appointments to the Supreme Court, not counting my own, I know a little about it. I believe Justice Brennan was right when he said you have to be something of a historian and something of the philosopher and, if possible, a prophet. Certainly, a wide territorial coverage is good. When I sat on the Court there were three justices from Kentucky, all good men. Another time there were three from New York, and that's a little disproportionate. Cabranes: For New York or Kentucky? Clark: Both. The power of the Court depends largely on its acceptance. The Court can't use the army to enforce its rulings. The only thing it has is what Chief Justice Marshall pointed out so well, the common sense of our opinions and the ability of the public to understand them. It is helpful to have a good cross-sectional representation among the justices. The mix of the Court when I was there couldn't have been better. Brennan, Stewart and Harlan; Bill Douglas from the SEC, who knew administrative problems; Felix Frankfurter from the Harvard Law School. I was a former Attorney General; Burton and Black had been senators; and Vinson, a legislator as well as an executive. The cases are assigned often on the basis of mix. That's why I wrote so many deportation cases, because I had been in the Department of Justice. I will never forget when Chief Justice Warren asked me to write Graham,16 a patent case. I didn't know anything about patents— nobody did. We had been denying patent cases for ten or fifteen years, and he gave me four patent cases to write. Of course, I said, "Sure, I'll be glad to write them." The Lord had his arms around me. But those are things that are the realities of life. As to selection of the Court, under the circumstances we have about as good a mix as you can get. I wouldn't quarrel with having a commission which would suggest maybe five names to the President, and he could select from them. But I don't think we've done too badly. Mr. Truman's two appointments, Minton and Burton, both turned out to very good justices. They rise to the occasion. The idea of a President thinking he can control the Court by his appointments is absurd. It's historically untrue. Just the contrary; Mr. Nixon learned a lesson in that: on busing, capital punishment and abortion. They say Mr. Truman was irritated with me on Youttgstown. That's understandable. He thought his only avenue was to seize the steel mills, and I'm not one to question his judgment on it. My job was to

148

Committee

II

say whether it was constitutional. He's supposed to get the job done, and I'm supposed to correct him. It's just that simple to me. I rather think in the long run we do a pretty good job. As to the matter of judging and legislating, I will admit that there's some judicial legislation in our opinions. The Constitution is written so it has to be that way. Why do you think they put in language such as "unreasonable search and seizure"? They could have put a more definite word than "unreasonable," but they put "unreasonable." Why do you think they used "due process"? They could have used some other words, but they didn't, deliberately, in order that it might be interpreted. The Congress can pass an act and say, "I'm sorry, court. You misinterpreted our act." What do we do? We're bound by the language plus the legislative history, and we try to interpret the language by what is said by the authorities at the time the bill was passed, that is, the chairman of the committee from which the bill came or the author of the bill. I grant you, there's conflict in language. Every piece of legislation is a compromise. We do the best we can to interpret by the guides we have. W e make mistakes. Geographic Distribution Elazar: I want to endorse Henry Abraham's sentiments about the judiciary as an institution, and how it has worked. I'm somewhat hesitant to talk about major reforms or changes. Even though Jewish, I am less worried about a Jewish seat on the Court than about the degree to which the U.S. Supreme Court is biased in its decisions towards the world view shared on the eastern seaboard of the United States. Even if you exclude the South with its particular set of circumstances, this bias seems to be quite pronounced. It may be that the eastern seaboard is ahead of the rest of the country, but there may be a self-fulfilling prophesy in that, as if its people wrote the rules. There are many other institutions in American society that reinforce that trend. There is a kind of an imposition of minority rule through Court decisions which is substantial, especially as the Court has seen fit to widen the scope of its jurisdiction, the number of cases, and the kinds of issues that it will consider. Chairman: What sorts of issues? The only thing I can think of offhand would be railroading regulations. Elazar: It has been in almost everything. It has gotten into the regulation of morals, the protection of individual rights in the area of criminal procedures, and into the question of school prayers. It has been into almost every question of public policy. In a sense it has to do with changing standards in the country as a whole with respect to what is a fair constitutional demand. The Court has widened its scope vastly in the past two decades. It has then been reinforced in additional ways. Congress has built into the Constitution certain restrictions on the federal court system: for example, the requirement that federal judges be appointed and that judicial districts not cross state boundaries.

Effectiveness of Governmental Operations

149

Clark: That's not constitutional. Elazar: No; that has become constitutional for all intents and purposes. Clark: No, it isn't. Elazar: There is a question about trying a person outside of the jurisdiction. Oakes: Article III, Section 2, says that "the trial of all crimes shall be by jury, and such trial shall be held in the state where the said crimes shall have been committed"; that's the only stricture on district. Elazar: At one time there was a limit to this northeastern bias, when Supreme Court justices spent part of the year riding circuit. This meant their views of the country were more encompassing. One of the characteristics of all branches of the American federal government today is that the people who hold the most responsible positions and wield the most power are located in Washington most of their time. This affects what kind of perceptions one has of problems. In effect, they have become residents of Washington whether they come from Kentucky or from New York, and this has certainly shaped their perceptions. I don't have any recommendations to make in terms of constitutional changes in this matter, but I would like to submit it for deliberation. Friendly: The geographic distribution has great historical precedent. Circuit riding almost required that the justices be appointed from different circuits. I recall one tempest over the fact that a President appointed two judges from the same circuit. I think the nomination was rejected. I doubt that one could prove a correlation of views according to the section of the country a judge is from. Take the Southwest. I doubt there would be much resemblance between Justice Rehnquist and Judge Hufstedler if she were appointed to the Supreme Court. Still, it is a good thing to have a geographic distribution, recognition of different religions, races and sexes; but, of course, you must have merit. State Courts I wonder whether the judiciary is as highly regarded as is assumed. It is true of the Supreme Court; I hope it's true of the lower federal courts. But I wonder whether it's true of the state courts. The basis for my wonder is the reactions I've encountered from lawyers throughout the country in my long and thus far completely unsuccessful crusade against the diversity of citizenship jurisdiction of the federal courts. What's bothering the lawyers is they don't think they always get a square deal in state courts. They believe some state judges are subject to influence, especially on decisions that are not subject to effective review, such as temporary injunctions. Also, that some are lazy, and a few incompetent. We benefit by broadening our sights a little and looking at the whole judiciary, not at the federal judiciary alone. Oakes: Diversity jurisdiction is a congressional and not a constitutional matter. I agree with Henry Friendly's remarks in reference to

150

Committee

II

the attitude towards state courts, but it doesn't stem from a thought that state court judges are more apt to be influenced. T h e plaintiff in a lawsuit selects his forum. He can go into a state or federal court. In Vermont, where I practiced law for many years, you went into federal court because generally speaking the verdicts were higher. T h e y were higher because the jury selection was from a broader area, the jurors were paid more than the jurors in state court, and the atmosphere of the federal court was better. T h e courtroom wasn't shabby. T h e federal procedural rules were somewhat simpler. T h e federal judge seemed to be forward-looking. And so as a plaintiff, you chose the federal court if you possibly could. T h i s situation has changed in Vermont. T h e state courts now pay the same to jurors, and they have improved the atmosphere of the courtrooms, refurbished them over recent years. T h e state has adopted federal rules of procedure. T h e state judges selection process has resulted in better, more forward-looking judges. And the state court verdicts have correspondingly risen. T h e federal courts have gotten bogged down. T h e r e has been a sharp reduction in the number of cases brought in the federal courts in Vermont, a sharp increase in the number of cases brought in the state courts, and the diversity jurisdiction problem that existed before has tended to disappear. Smith: As a lawyer who has an obligation to the system of justice, I favor the abolition of diversity jurisdiction. As a trial lawyer, I'd like to have as many choices as I can have. Sometimes I want a shabby courtroom, sometimes I want a competent judge, and sometimes I'm not so certain that I do. If the adversary system forces you into trying to win, you look at legitimate considerations within the bounds of law and make your choice. T h e prime reason we have to consider the state courts with federal courts is that every time you change one little thing in one system you impact tremendously on the other. You can't adjust jurisdictions in one place without causing an impact on justice elsewhere. If you abolish diversity jurisdiction, you increase the case load in the state courts. Friendly: By one percent. Smith: Yes, just one percent, whatever it is. I'm willing to do that. W h i l e we're talking about the Supreme Court, the system works well and I would not feel the urge to tamper with it. But the system hasn't worked so well when people don't do their constitutional duty. T h e President and the senators both get involved in appointing Supreme Court justices. But when it get down to a district court judge, the President is hardly involved at all. Some of his minions get involved a little bit. But basically it is a political negotiation with a senator. T h e quality of judges at the trial level is exactly equivalent, no more and no less, to the quality of the senators whose turn it is to make the pick. It's a bad system. Clark: Illinois, for example, has a good trial bench, largely due to Senator Percy. W h e n I was Attorney General, M r . Barkley used to call me up and say, " I have a seat over here on the court of appeals

Effectiveness of Governmental Operations

151

that's become vacant." I said, " N o , there is not a vacant seat over there." He said, " O h , yes, I have a retirement f r o m judge so-and-so." T h e judge would have sent his notice of retirement to him rather t h a n to me. Despite this, we have increasing i m p r o v e m e n t in the trial bench. I agree it's the most important level. T h e trouble at the state level is the elections. Forty states have some type of merit selection. T h e problem there is largely politics. Court Management M a n a g e m e n t is lacking in both federal and state systems. W e ' r e getting more in the federal system with w h a t is called a circuit council. Until the last ten years, the circuit council has been relatively inactive. In controlling dockets, putting in new methods, the Congress has been better to us lately. W e now have $5 million to put into a computer system. That's not the answer, b u t it helps. W e can find out where the backload is, where jams occur. But we need to go through the system, and determine what the judge should sign himself and what he can let the clerks or paraprofessionals take care of. W e have ninety-four districts in the United States. I'd say eighty-nine of them have more than one judge. W h e r e there's more than one judge, you have a chief judge. He's chief because he's senior, not because he wants to be chief. W e ought to change that. Perhaps the President should appoint a chief judge, or the Chief Justice designate one. As far as the basic structure is concerned in the federal system, there's not much need for change. I don't agree at all about the justices being circuit riders. N o one could be more eloquent than H u g o Black about what happened when he was a child in Alabama. Harold Burton would tell about what happened w h e n he was a councilman in Cincinnati, Bill Brennan about N e w Jersey, and Earl W a r r e n was always saying, "In California, here's w h a t h a p p e n e d . " D o n ' t think for a m o m e n t that they lose that tie w i t h local experience ; they bring it right on to the Supreme Court. Elazar: I was hardly surprised w h e n M r . Justice Clark suggested that one's boyhood and early m a n h o o d experiences are recalled in the Court. But that is precisely the problem. W h o of us, of whatever age, has not witnessed tremendous transformations? But one does not then apply the changes f r o m rural Alabama to M o n t g o m e r y or Birmingham or Mobile, or a small town in Alameda C o u n t y to O a k l a n d or Berkeley. One's later experiences are essentially of a different order. I have not had any real contact with members of the Supreme Court, but in contact with the members of Congress, I have come to feel that these are people whose perception of problems is no longer that of their home states; it is that of the metropolitan W a s h i n g t o n area. Not that they forget their home states—they are often back several weekends a m o n t h — b u t they lose a certain touch. The transformation almost freezes them in their perceptions of w h a t it was like back home forty years ago, not w h a t it is like back h o m e at the present moment.

152

Committee

II

Clark: But it would just destroy the Supreme Court if they had to go out and circuit. I served the circuit for eleven years. Once a year I met with the district judges. I talked with them about their cases and was more frank that most justices were. I have had my circuit call me up about administrative matters and I'd advise them. I wouldn't say, " W e have to wait until the case gets here." These are administrative matters that do not have anything to do with the ultimate merits of a question. Perhaps one of our problems is that we are too reticent in taking over more power. You'd think that we would grasp it. As a matter of fact, we try to take as little as possible. We don't have a unified structure in most states. The Supreme Court is not in charge; no one's in charge. In some states the judges go from district to district and they can't be transferred unless they wish to be. That's why it's difficult to work systematically. Suppose you did that in a corporation? Suppose the company president didn't have the power to move his people to Louisville or Seattle? Second, we have the elective system, which is very bad. And third, we have a proliferation of courts. Some states have fifteen or twenty jurisdictions: a justice of the peace, a municipal court, a county court and an appellate court. All of them have different little jurisdictional powers. What we need is somebody to take charge in the state system and get some order, control and unification. The Courts and National Security Raskin: Mr. Justice Clark raises crucial questions concerning the task of the President to get the job done, and the task of the justice to judge the Constitution. I take it that the Supreme Court, or the courts generally, have been doing well. The system has been working. But more and more in this generation, there's been the development of a whole apparatus in society that is outside legal or judicial control. It has to do with national security and with the peculiar relationship of foreign affairs to presidential and bureaucratic powers. One of the questions is whether or not the judiciary should move into the area of national security, and there are certain aspects of presidential power that have to be controlled, or a bureaucratic power that has to be judged. There are two ways that can occur. One is to have the justice system folded into the bureaucracy. That, it seems to me, is what is going on with regard to our Justice Department. The second is in effect to say that the national security apparatus will be judged on the same terms that the civil society is judged, that there will not be one law for United States officials and another law for people in the civil society. I hope it is possible to talk through these questions at the root of the Nixon case, at the root of the entire Watergate affair. Indeed, in this last generation there is a question of the control of activities of the National Security Agency, the CIA, other sorts of intelligence and police operations, and military operations, matters that the judiciary has assiduously stayed away from, because it was either a political question or a foreign affairs power of the President.

Effectiveness of Governmental Operations

153

Clark: We have stayed away from foreign affairs, but this observation would not include our concern with some of the things that Nixon did. I'm assuming that President Nixon was sincere in advising his Attorney General about what he thought his powers were. The problem is, you see, we can't act directly as Congress can. We have to wait until the case or controversy comes before us. So when we get a case or controversy involving the CIA, I'm sure the Court will pass on it. Raskin: I don't think so. Clark: Until that time comes, we can't pass on it. We have to wait. In foreign affairs, the President is supreme. Ordinarily we won't violate this. When I was on the Court we did get into foreign affairs. We did pass down opinions, depending on the circumstances. Wechsler: You changed the Passport Office. Clark: We did, and we had two or three cases, in Cuba and South America. You understand that the Court isn't a State Department. The Court is a small institution. When I was there we only had two law clerks and a secretary and a messenger. Each justice now has just two secretaries and three law clerks. It's a very small office. When I was there, appropriations were $1,800,000. Now they are $4 million. So, you have to remember that we're circumscribed by the case or controversy rule, which is a good one. And we just don't have the facilities. Hoxie: In response to the observations on the Court and national security policy, I realize many persons have been frustrated. They have felt that the courts have not been aggressive enough. I recall the frustrations of a number of activists in 1973 when Congresswoman Holtzman was seeking to get a case against Mr. Nixon with regard to military operations in Cambodia. 17 As a historian, I felt the courts were absolutely right in saying there was no case there and that the President was acting in his role as commander-in-chief. Much has been said with regard to there being two presidencies. Aaron Wildavsky achieved some fame in speaking of a presidency for war and a presidency for peace; or a presidency in domestic policy and a presidency in foreign policy.18 The courts have made that distinction. At the same time we shouldn't say that the courts have ignored national security policy or foreign policy. What Congressman John Marshall had to say in 1800, just a few months before he became Chief Justice, has been the position of the Court; that is, there is inherent in the executive power a responsibility for a national security policy and a certain degree of primacy in the area of foreign policy. This was clearly the Lockean doctrine that the framers were looking toward. Many persons have been concerned that the Curtiss-Wright decision19 reffirmed what Marshall had said in 1800 with regard to the primacy of the executive in national security policy. The Court suggested that the executive branch by its nature was better qualified than the Congress in the conduct of foreign relations. It seems to me that the Court has a sense of when national security

154

Committee

II

is at stake. In 1952, when Harry Truman sought to exert his role as commander-in-chief in the Youngstown Sheet and Tube case, the Court clearly indicated it was not a case of national security. Accordingly, it refused to countenance the seizure of the steel mills. I don't believe the record indicates that the courts have been ignoring the areas of national security. Rather, they have been reluctant to interfere in wartime. Moreover, I believe that from Marshall on there has been this recognition of presidential primacy in national security affairs, and rightfully so. Judicial Salaries McKay: Might it not be useful to inquire if we agree that diversity jurisdiction should be limited or eliminated? Whether three-judge courts should be eliminated? And, if we're going to talk about selection of judges, I want to be sure that we don't adopt the position that there should be a Jewish seat, and a black seat, and a female seat, and by inference then a Chicano seat, a Puerto Rican seat and an Irish Catholic seat. Chairman: And if possible all occupied by the same person. McKay: There might be something we could say about selection of judges on the basis of experience of the American Bar Association's Standing Committee on the Federal Judiciary. W e might reach consensus on the mundane issue of money. For all the difficulties there are in the selection of federal judges and justices at the present time, the most important barrier to getting the best people is salary. The American Bar Association's committee found that a number of people whom the senators and the President would like, people who are undoubtedly well qualified, are declining nomination at the present time. There's an unprecedented surge of members resigning because they simply cannot stand the financial loss. This is a difficult issue for the American public, to say that $40,000 to $45,000 is not enough to live on. Mann: There's an issue involved in trying to tie congressional salaries to the courts so that judicial pressure will help raise our salaries. Although I participated in the impeachment proceedings, I don't like to blame everything on Richard Nixon. Yet, I blame him for not having submitted to the Congress in 1973 the quadrennial recommendation for a commission to avoid some of the political flak that comes from raising salaries. He failed to do it. He sent it up in 1974. But that was an election year, so it was rejected by a Senate vote on March 6, 1974. Had it been done in 1973, we would not be in the crunch we're in now. It isn't bad basically to have the salaries tied together, unless something goes wrong, as it did in 1973. I don't believe the pressure is going to build this session to separate the two. Now, if something goes wrong in early 1977 so that the quadrennial recommendations run into some difficulty, then maybe with the pressure of the American Bar Association and the judicial community, there may be a basis to try to separate the two. Wechsler: You might consider James Madison's suggestion in the

Effectiveness of Governmental Operations

155

Constitutional Convention, that the judges be paid in wheat rather than money! Reedy: If we do express a consensus for increasing the compensation of judges, I hope no one notes that there's a paper before us decrying the exorbitant demands of public employees. And if someone doesn't make the comment, then the consensus may be due to the fact that jurists are quite well represented in this group, but there are no firemen, garbagemen, policemen or public school teachers. Chairman: I'm a public school teacher, and undercompensated, I might add. Supreme Court Appointments Reedy: I'm strictly of the Jesuit school, and though possibly we should be the public, we aren't. The question of appointments is a fascinating one because a general principle of government is involved here, something that may be helpful in trying to determine effectiveness. I quite agree with Dr. Abraham that there should be absolutely no religious standards, no geographic standards, no economic standards in selecting judges. On the other hand, if I were a President of the United States, I might awaken some morning and to my pleasant surprise find I had appointed a Jew or a black or a Chicano unbeknownst to myself. You have here an area of government worth noticing. You have to have a series of prescriptive samples, or a series of exactnesses, or areas in which things are done sensibly, not in violation of any of the standards. Maybe one of the tests of government effectiveness is that it has succeeded in devising standards which are observed, but which at the same time leave open the possibilities for a humane and human administration. I'm not at all concerned for instance about having a Jewish seat on the Supreme Court. It would disturb me, however, if there were a rule by which a Jew had to be selected, because the prestige of the Court is very important. So-called Court legislation should be exercised very rarely. Every once in a while a society reaches a point where there are issues that must be resolved, but the political institutions are incapable of meeting them. This happened with civil rights in the early 1950s. The beauty of the Court's stepping in on cases like that arises out of the lack of precision of the English language. The concept that courts perform their tasks by standards other than political ones is terribly important. In other words, if Congress acts on a civil rights issue, that is a political act, and really the best way of handling it. But there is somehow a public perception that if the courts act upon it, it is no longer a political issue, that the courts are deciding according to certain sacrosanct standards. The difficulty with that is, if the courts do it too many times, they're spending money in the bank. Right now, the courts have a definite need to put some money back into the bank and to try once again to

156

Committee

II

reestablish themselves as being something other than of this grubby thing called politics. I don't know why they make "politics" a grubby word. It's a noble one to me, but not to the average American. Abraham: I have sympathy with those who would like to see a certain amount of structuring or focusing on some of the central issues w e attempted to raise earlier. O n e is the diversity jurisdiction field. M r . Smith quite correctly pointed out that if we remove diversity jurisdiction from the federal bench, it may have to go to the states. I suggest that doesn't have to be true. M o s t of you are familiar with Philadelphia, where an average of 8 , 0 0 0 to 9 , 0 0 0 cases are handled outside the courts by arbitration. T o be sure, those are confined to civil cases and to an upper limit of $ 1 0 , 0 0 0 , and practiced to a small degree at the criminal level. T h e Philadelphia arbitration system consists usually of three lawyers volunteered by law firms, usually young partners or associates, who do this for about sixty dollars a session. They have enabled the common pleas courts here, at the county level, to be freed of some 1 0 , 0 0 0 cases a year. It's worked beautifully. I've never seen any reason, speaking as a layman, why automobile accident cases have to go to the courts merely because you have diversity litigants. I see no reason why negligence cases couldn't be handled by arbitration. Inquisitorial System Chairman: O n e thing I missed in your paper was any representation that there were any costs at all to an inquisitorial system. Abraham: I think the inquisitorial system in a sense mitigates the game which M r . Smith mentioned earlier and which leaves a bitter taste. Chairman: W h a t is the advantage of the inquisitorial system? Abraham: I don't know whether it would work here. I've seen it in France. It is a system which signifies the attainment of justice with a de-emphasis on the game. You have your juge d'instruction who obtains data from and confronts witnesses by tape recorders, witnesses who in the last few years are allowed to have lawyers. T h e judge asks questions and collects evidence right there. Evidence does not have to be brought out in court by virtue of the game. After he has gathered the facts, he presents it to trial before another judge. This is not ideal, but it mitigates the game aspect. I have no illusions that we'd ever accept it, but there are certain elements of our system which do not inspire confidence in terms of the quest for justice. Clark: D o n ' t you think we've eliminated most of the game in our discovery procedures? Abraham: I don't think so. Clark: A good lawyer can find out even the most minuscule points the opposition has. Abraham: But he still has to be good; he has to be alive and alert, and have the research and the tools. Chairman: So does your investigatory judge in an inquisitorial system.

Effectiveness of Governmental Operations

157

Abraham: Yes. But he doesn't have to buck the adversary system. Clark: We'd have to give up some of our most precious rights, it appears to me. Abraham: I realize I'm treading on very thin ice. Oakes: The Sixth Amendment. Abraham: Yes. I also seem to be attacking the basic concept that one is innocent until proven guilty. Chairman: Yes, in a sector where you claim things are doing well. Do you know what public acceptance is in France, Russia and in other places where they use the inquisitorial system? Abraham: I don't know. Smith: Adversary justice certainly costs too much. We ought to consider the inquisitorial system for its economy. Reedy: What Dr. Abraham is describing bears a very suspicious resemblance to the court-martial system of World War II, which is the only participation I ever had in the judicial system. I was a defense lawyer. I was a trial judge advocate, believe it or not. I didn't have a degree out of a telephone book, let alone a legal degree. But it was quite adequate because, as I recall, the objective of that system was not to determine guilt or innocence. It worked quite well at the lower levels, where six months was the outermost sentence. An investigating officer would make certain findings, and you could be fairly certain that the court would go along with that investigating officer. Again, in a summary court-martial it didn't matter, for the sentence was only a month at the most. In a special court-martial, it began to matter because that could be a six-month sentence. But at the general court-martial level, it seemed to me, in many instances the question of guilt or innocence wasn't too crucial. This is what worries me about an inquisitorial system. It would be similar to the military judicial system, a device not for rendering justice, but for maintaining order and discipline in military society. Abraham: The French would not accept the analogy that way. Diversity Jurisdiction Feerick: Back to abolition of diversity jurisdiction—there's no reason why the state courts can't handle personal injury cases. But part of the rationale for the diversity system is the potential biases of the local courts and juries in situations involving out-of-state residents. May there not be some validity to allowing those cases to remain in the federal courts? Chairman: So there are some aspects of the game, you're suggesting, which may have a foundation more legitimate than the need to increase the income of a trial lawyer? Feerick: Right. Abraham: Some of the rationale that underlies the acceptance and perpetuation of diversity jurisdiction cases is gone because of Erie v. Tompkins.20 As long as you were governed by the older system, I

158

Committee

II

could see shopping around. Now, as I understand it, federal courts have to apply state law in diversity cases. Clark: Sometimes we abstain. We ask the state courts to tell us what the law is. Oakes: Mr. Feerick's point is well taken. Diversity jurisdiction is not the greatest problem of the federal courts. One's views as to diversity jurisdiction, as a lawyer or as a judge, depend largely on where one comes from. In the cities I think it has absolutely no use at all. In the country it may well have a use along the lines that John Feerick has just mentioned. There tends to be a bias against the out-of-stater, the out-of-city person. And as a country lawyer, I would defend diversity jurisdiction to the death. As a city judge, I think it's ridiculous and I'm torn constantly between these two opposites. Friendly: To say that this is not a big problem is just wrong. It's true the proportion of the federal cases which consist of diversity has dropped, but their absolute number has increased. They represent close to 25 percent of the civil dockets of the district courts. To get rid of that is no inconsiderable achievement. As to discrimination against the non-resident, we have the anomaly which has existed since 1789 that federal jurisdiction is available to the resident suing the nonresident. The American Law Institute's proposal21 was directed simply to correcting that. I don't see any defense for that portion of the diversity jurisdiction, but now the time has come to do the whole job. Another thing has transformed the situation. As distinguished from what the framers envisioned, of an individual New Yorker suing an individual Pennsylvanian in Philadelphia, the basis for diversity is now generally that you're suing a big corporation incorporated in, say, Delaware. I can't believe that even in the rural areas the nonresident motorist suing a Delaware trucking company is at any particular disadvantage. Even the defenders of diversity jurisdiction have given up the argument that transferring to the state courts would impose an additional load on those courts. The Freund Study Group made a careful study of that. 22 Of thirty states surveyed, there would be about a one percent increase in case load for the state courts, which is probably less than their normal increase in a month. In many states it was less. While one can't deny there may be an occasional case of discrimination against the out-of-stater, I think they're few. The value of preserving diversity jurisdiction in those few cases is completely outweighed by the burden cast on courts having to devote themselves to important questions of protection of civil rights and issues of national policy. What remains is only the understandable desire of trial lawyers to have as many options open to them as possible. McKay: When we pose as the only alternatives the adversary system or the inquisitorial system, we force the issue on wrong terms. We need not choose between those as if they were the only means of dealing with the issue. The inquisitorial versus the adversary is an issue only on the criminal side. Even on that side there are many things that can be done with the criminal system now without abandoning

Effectiveness of Governmental Operations

159

the adversary system altogether. W e could decriminalize; we could depenalize; we could impose fines. But on the civil side, the issue is whether the adversary process works effectively and fairly. The argument can be made that the adversary system on the civil side works best in the great social, political, and economic issues of our time where the courts have well trained adversaries on both sides, where the courts are well equipped to take complex issues, to marshal the facts, to deal with the social science evidence and to come up with reasonable results, where legislative and executive bodies sometimes are unable to do so. The adversary system does not work well in small cases. W e have erected a structure in which we give the greatest possible protection to due process, individual liberties, and the ways of discovering the truth. That works very well in the large case, but in the small case it does not. I'm heartened by the fact that in Pennsylvania and other places there are attempts by arbitration to take some of these small cases out of the courts. The terrible irony of the system is that the protections are designed for the individual, and yet when we come to the poor person, particularly in a civil case where there is no constitutional assurance of representation, the very complexity of the issues almost certainly means that that individual is not effectively represented and cannot be effectively heard in court as a plaintiff or defendant. Thus we need to give serious attention to getting some of those problems out of the complexities of the court. And we need to find some better way of effective representation for poor persons. W e do not have it now. Judicial Appointments Abraham: One more word on appointments. I'm deeply committed to the proposition that the only criterion for appointment to the courts ought to be merit. If in the nature of things, one might wake up and find that one has appointed someone to fit the political prescriptions, fine. But I would side with Mr. Justice Clark, that the only real justification is that of functional fitness. Chairman: Aren't you ignoring the issue of acceptance and legitimacy? Are you giving sufficient consideration to the problem that sometimes courts, particularly the Supreme Court, decide issues which go to deeply held beliefs of people? Isn't it possible that by scanning the social identities of those who render decisions, people may come to feel that it isn't ignorance which led to this decision, and thereby some acceptance can be gained? A perfect example is Mr. Justice Frankfurter's view of his position on Brown v. Board of Education. He pressed very strongly upon the Chief Justice to write that decision, and said it was important that the Court be united behind him. Frankfurter felt he could not write it because of his social identity. Likewise, it seems to me, had there been a woman on the Court at the time the abortion decision was made,

160

Committee

II

and had the woman participated in the majority decision, it would have been far more convincing to an important part of the population. M y point is simply this: you have to consider the persuasive character of the social identities of people who sit on the Court. Raskin: You also have to define more carefully what you mean by "merit." Abraham: That is a professional classification. I'm giving due benefit to the serious motivations of the nominator. In a good many instances merit was forced upon them. An excellent illustration, of course, was President Hoover's nomination of Cardozo. Smith: Should the Congress look at the same things in confirmation? Abraham: The Congress is as justified as the President in considering background, qualifications and, if it wishes, political philosophy. I'm not shocked because members of the Senate have considered the prejudices of nominees. The Senate, being a partner, has every justification. It is at the stage where the Senate should consider such issues. However, once individuals get on the Court, they work out their own particular philosophies, generally. Chairman: But you're not addressing the acceptance question. Abraham: The acceptance question is being overstated. Justices form their philosophies and their impact once they've reached the bench. If there's one thing true in the history of appointments to the Court, it is that no nominator can ultimately control the nominee. Chairman: No, you're not talking to the point. The point is acceptance by the populace at large. Abraham: I think you're overstating that. Smith: The Chairman means, the acceptance of, say, Brown v. Board of Education because Justice Black was on the Court. Abraham: Well, the response would be that since he was a Southerner, he should have known the region. As he once said to one of my seminars, "I knew things weren't equal because I lived there." Chairman: But the point is, had there been no Southerner, would it have been as easily accepted? Reedy: Are you going to prescribe that there be a Southerner on there and a Jew? O f course there's going to be a Southerner. The political people know what they're doing. Cabranes: We can agree that no one suggests the abandonment of merit tests or the establishment of religious, sex or racial tests. Rather, the bench generally, and the Supreme Court particularly, should be sufficiently representative and inclusive to assure widespread respect for its legitimacy and authority. Chairman: Would you accept that, Professor Abraham? Abraham: I certainly do, but I think it works itself out. Chairman: All right. But that's different from simply prescribing merit and not being willing to consider these other things. Reedy: Your problem, Mr. Chairman, is trying to prescribe certain political standards in advance. This is one field in which you cannot

Effectiveness of Governmental Operations

161

have advance prescriptions. Politics is the business of the politician. I assume Presidents, as long as they can get elected, will have some concept of how to set up a nomination to give it public acceptance. I suspect that as long as congressmen get elected, they'll do the same thing. Eulau: What worries me about use of the word "representative" is that there are other things to be represented on the Court, namely ideologies. Cabrones: Sure. No one denies that. What we're addressing is the untrue statement that geography, race, sex and religion have no place in choice motivations. Eulau: The representative character of the Court will emerge over time because the Court itself is exposed to the same pressures to which the executive and the Congress are exposed. In any one decision it may not be, but over time the pressure is always there. Reedy: In the political world no standard is immutable. Whatever you've got is obsolete by the time you get it adopted. The political system has a flexibility to it that accommodates these things. Cabruñes: But would you also set down a prescription that considerations of geography, race, sex and religion should have no place in choice motivations? Reedy: I wouldn't prescribe it. I would just say that the standard is merit and just not prescribe the others. Raskin: I'm lost on the meaning of merit. On the one hand, it's clear that we're arguing that if a person is meritorious, this helps his legitimacy factor. In other words, if a wise man says something that other people feel is true, people will accept that by authority. Chairman: I don't think that's what's meant by merit. What's meant by merit goes something like this: there are certain technical qualifications which, when skillfully employed, make a judicial decision intelligible below and to future litigants. Raskin: Yes, but the technical qualifications we talked about are philosopher, historian, prophet, man of inordinate patience. Abraham: There are other prescriptions I would accept, and which Mr. Justice Clark was satisfied with. Raskin: Then how are we to test that? Abraham: It's the totality of a man's life, of his performance as perceived by the nominator. Raskin: I would ask Mr. Justice Clark, is that a standard you would accept, that before anybody joins the Court, he be a philosopher, historian, prophet and man of inordinate patience? Clark: No, I wouldn't. I had a strange system myself depending on the background of the President. With Eisenhower, a military man, the Attorney General had an easier time because Eisenhower didn't know any lawyers, and had had no experience other than with military courts. As a consequence, he had no preferences. I had a practice of giving President Truman three names, one from Congress, because he had been a senator, and I would take someone whom I thought had the qualifications that you've enumerated here: merit and geography.

162

Committee

II

Geography has a place in it, particularly to avoid having three or four people on the Court from one state. My second choice was from the courts. It may be good to have someone on the Supreme Court who is familiar with the judicial process. He will have studied a lot of problems, and it would be well to have someone act as a rudder, or an anchor, you might say. Then the third one was from the bar. You don't have to be a lawyer to be on the Supreme Court, but we've always had them. So I would give President Truman choices from those three fields, and in selecting them, I would try to apply the general principles which you've enunciated here, merit, geography. I might consider race. I might consider religion. I remember when Justice Minton came to the Court. He had been on the Seventh Circuit. His wife was a Catholic. At the time we didn't have a "Catholic" seat on the bench, because when Murphy went off I succeeded him, and I was a Protestant. I think President Truman in appointing Minton considered all these elements: his wife was a Catholic; he was a former member of the Senate; he had been on the Seventh Circuit for ten or twelve years; and had been at the White House when Roosevelt was there. Once I talked to Chief Justice Hughes, then retired, about a Chief Justice to succeed Stone. We had an unusual problem in the Court. There was a bit of animosity between two justices. As Attorney General, I knew some of the justices quite well, and was able to talk to them. Mr. Truman himself suggested I talk to Chief Justice Hughes, who then suggested Vinson. Hughes said he had appointed Vinson to the Special Court, and when he was on the Court of Appeals of Discipline, Hughes had found him a good arbitrator and negotiator, a middle-of-the-road guy, who could probably placate the animosities. So I just took Vinson over to the White House and the President nominated him that afternoon. You want to act quickly, too, before the President changes his mind. What is Merit? Reedy: There's a trap here we ought to avoid, and that is attempting to quantify the concepts of merit. One of the problems of the modern world is rendering the certificative society, where the mere fact that somebody wanders around with a certificate is supposed to entitle him to something. We're trying to take what is basically an existential problem and reduce it to analytic geometry. My concept of merit is more likely stature. There are certain men known as having this stature. Few people would have argued about Holmes or about Brandeis. Basically, there are certain men who make an impression upon their colleagues. If you poll the legal profession, lawyers who practice in front of judges naturally always want one who's going to win their case for them. You can learn something about judges, whether they should be on the court or not, but you are not going to quantify this. Similarly

Effectiveness of Governmental Operations

163

in journalism, I could give you a list of journalists who really are outstanding. I wouldn't quantify it by the amount they write, or by the number of degrees they have, or the certificates they hold. Chairman: Could you get agreement among a number of people with respect to it? Reedy: Yes, I certainly could. Chairman: Of course, that's a form of quantification. Reedy: No, for quantification, you'd have to send a questionnaire around. But you can't prescribe the standards of merit. You have to assume a sensitivity on the part of the political leaders to the realities of society, sensitivity that enables them to determine who the men of distinction are. This may get into the appointment of a Jew or Chicano, unbeknownst to themselves. Cabranes: That's not true. Reedy: There are certain things you cannot do, and one of them is to prescribe sensitivity and merit. Cabranes: But you also can't prescribe the exclusion of certain factors. Reedy: I don't believe in exclusion. What I am stating is there is a certain point where the government must leave questions to the sensitivity of political leaders. Now, God help us if these political leaders are a bunch of bums. But I just don't know what else you can do. Smith: It's important to talk about what merit is. The rhetoric helps everybody make his own individual suggestive judgment; but the outcome, since it is a subjective judgment, won't be the same. Therefore, it's important to the constitutional system that no one source make that subjective judgment. At present, the President and the Department of Justice look at merit and make a judgment on a Supreme Court nominee. And then the Senate, Mr. Abraham said, should use the same criteria in the confirmation process. But at the same time, we're falling down completely on lower court judges where there is a merit determination made by a senator which is checked on by the Department of Justice. The Senate as a whole no longer checks that. It's senatorial courtesy. They pop their finger and that's the judgment. So always in talking about merit, we want more than one judgment, as many as we can get. McKay: There's one significant negative screening that is being done at the present time. It doesn't work perfectly, but it helps some. That's the American Bar Association's special committee, which reviews rather carefully the names being considered for the Supreme Court. They also review all names suggested for the lower federal courts. The most they can do is check for professional qualifications, which is a kind of merit judgment. And they do check with a wide variety of sources to make that judgment. It becomes less subjective then. They have standards that are articulated to some extent. So at least there's that negative protection in the process now. Friendly: It does seem to me that there's been a complete reversal in the nominating process for the inferior federal courts. During the Eisenhower administration, the practice was for the Attorney General

164

Committee

II

to formulate a list. In the long run that had to be cleared with the senators. But the initiative was always with the President acting through the Attorney General. I can't speak as to what happened during the Kennedy and Johnson administrations, but my impression was it was more or less the same. Then came Nixon and the process was completely reversed. I can speak with some feeling on this because I remember that in my brief tenure as chief judge, when we had something like seven vacancies in the Southern District of New York, I went down and talked to Mr. Kleindienst. And he said, "Well, we're powerless. W e can't do anything. W e can't get any nominations from the senators." And I said, "Well, Mr. Attorney General, you've amended the Constitution. You've changed the situation so that now the senators, at least when they're Republicans, shall nominate, with little prior investigation by the Department of Justice or the American Bar Association. The senators appoint with their own advice and consent." It does seem to me that the President acting with the Attorney General in appointments is important. Court Self-Regulation Hoxie: Mr. Chairman, I would like to ask one question regarding the courts in the areas of self-regulation and congressional regulation. What about Congress and the courts policing themselves? I have a feeling Congress is getting its fingers into just about everything these days. It certainly is regarding the presidency. Is it doing the same thing as to the Court? Is the Court itself engaged in self-regulation in making up its own rules? Chairman: The first question is congressional usurpation of court functions. For that we have a distinguished member of the House Judiciary Committee. Mann: I see no organized effort to do anything but the remedial type of legislation to which Mr. Justice Clark referred. There have been threats from time to time to resort to the use of Article III, Section 2, paragraph 2 pertaining to appellate jurisdiction, and particularly in reference to busing or other such issues. However, there is no pending substantial movement or group within the Judiciary Committee or within the Congress, of which I am aware, that's attempting to do anything to the jurisdiction of the Supreme Court or the federal court system. Perhaps there have been resolutions that deal with the problem of habeas corpus, but nothing has really happened. The Court is doing something within its own framework to deal with that problem. So I know of no actual court reform legislation pending. Abraham: Except, Mr. Mann, insofar as there may be in S . l , the Senate's bill. Mann: Yes, and S . l will be a matter for my subcommittee on criminal justice. Hoxie: S . l is what? Mann: The revision of Title XVIII of the Criminal Code. We've

Effectiveness of Governmental Operations

165

been working on it now for two and a half years, but I don't expect us to get around to it in any substantial way this year. Hoxie: Well, if the Congress is not, which is reassuring to me, is the Court itself engaged in self-regulation? Mann: The Supreme Court, under its rulemaking authority, promulgated the Federal Code of Evidence two years ago. Congress, acting again through this subcommittee on criminal justice, passed a bill which provided that we take affirmative action for those rules to become law, which we did. A similar situation occurred this year with reference to the substantial amendments to the Code of Criminal Procedure. So the Court is doing substantial things. Oakes: Earlier Mr. Feerick questioned the independence of the judiciary. I think that both Congress and the courts themselves are tending to interfere with the independence of the federal judiciary, not yet in a direct way, but by erosion. For instance, this new speedy trial law is going to create inflexibility and present difficulties that should better have been handled by the courts themselves, and were being handled at least in Vermont courts. As another example, matters of disqualifications, which were being handled under the Canon of Ethics, have now been put into statutory form to a degree that borders almost on the ridiculous. In the courts themselves there's talk about setting up a self-governing body that, short of impeachment, would review the conduct of judges and recommend those who should retire at an early date. That concerns me lest it intrude on individual independence. In short, the federal judiciary is not quite as independent as it was in 1966, and that tends to be a bad thing. Federalism Chairman: Let's turn to federalism. Abraham: Federalism—my expertise is nil in the field. Some years ago I co-authored a book with a genuine expert on federalism, Professor J. A. Corry of Queens University in Canada. 23 I learned a great deal from him. I'm one of many who, at one time in their academic lives, labored with Rex Tugwell in rewriting The Emerging Constitution.24 Tugwell, as he often did, took on federalism and eradicated it with his twenty republics, with governors and other things. His conclusion was to do away with it. The Tugwell proposal will never become part of our Constitution because, psychologically speaking, we could no more do away with our federal structure than the Canadians would do away with theirs. Being the heterogeneous and centrifugal nation we are, our charge should be to look at its effectiveness in terms of governmental process. Whether or not the federal structure is effective depends on what one expects from the federal system. It is present in any facet of our lives. It is certainly present on the Court. We have some rather strange decision-making on the part of some Supreme Court justices on whether or not a certain issue is federal or state. Witness Mr. Jus-

166

Committee

11

tice Harlan, certainly a jurist's jurist, who went one way in Roth v. United States and another way in Alberts v. California25 on the right of the federal or the state government to regulate obscenity. We see this in a number of circumstances. When I was in Utah, I picked up the paper and saw that the Chief Justice of the Supreme Court of Utah had just found that the Bill of Rights does not apply to the states, citing Barron v. Baltimore.26 The Utah court held that the First Amendment did not apply to the states because every school child knows the Bill of Rights was written to apply to the national government. Elazar: I suppose Henry Abraham is correct in that effectiveness of federalism is in the eye of the beholder. In some respects it is hard to separate federalism from other topics because federalism informs the American system and touches every issue. We have begun to move away from the notion that the efficient operation of any system is based upon the elimination of duplication. The real questions that must concern us are questions of politics. They have to be judged from a political perspective and not shunted aside with questions of some abstract cultural perception or esthetic view of efficiency. For a long time, the tendency has been to take hard, political problems and seek apolitical solutions for them. This goes back at least to the Progressive era in the United States. It may have older roots than that. But up to that time, Americans who thought about these problems tried to accommodate structures to their understanding of political realities. At that point, there was a shift toward the view that since political realities are entrenched and difficult to grapple with, it would be better to turn to apolitical means to overcome them. I think we are now coming out of that period. The Tugwell constitution was an appropriate set of 1930s ideas, but it did not excite the young reform elements in America. Quite to the contrary. Chairman: Two years ago he came out essentially against federalism. Elazar: He came out for twenty or twenty-two republics. Chairman: This was amidst the movement toward revenue sharing. Elazar: Yes. Chairman: Strikingly, reformers in Great Britain are trying to get what they call devolution going. Their constitutional reformers are busily hastening toward decentralization, the other direction from what's fashionable here. No doubt they'll meet Tugwell in the middle. Reedy: Independence for Scotland and Wales. Chairman: That's right. Elazar: And maybe Cornwall and Yorkshire. Chairman: It's a good deal more than just independence movements. They're getting very serious about localism across the board. So am I right in thinking that that's the way things are headed at this stage? Elazar: The United Kingdom will not use the term "federalism," of course. That goes against the entire political tradition of Great Britain. President Nixon talked about the "new federalism," which was kind

Effectiveness of Governmental Operations

167

of a new centralization. There have been seventy-five "news," just as there have been seventy-five constitutions from Mr. Tugwell. But the trend is clearly in that direction. Forty percent of the population of the world today lives under systems which purport to be federal. Chairman: Do you include the Soviet Union? Elazar: Yes. Forty percent live under formal federal structures, and another 32 percent live under systems which have or purport to incorporate federal principles without going all the way. This is so in the United Kingdom today, which provides separate Scottish and Welsh administrations to some degree. There's a separate law in Scotland and a separate church. The Queen becomes Presbyterian when she crosses the border. Raskin: I wonder what the feeling is about the phrase, "It may well be that there's really no effective reversal of the trend towards centralization of power." Eiilau: W e know very little about the function of the American federal system today as it actually operates at the grass roots level. We know nothing about the intersection of local, county, state and federal agencies at the street level. Certainly no research has been done. Elazar: I don't agree with you. Consider the Anderson-Weidner studies done in the late 1940s. 2 7 Eulau: Of course we have case studies of particular counties in the country, but we have 3,500 counties in this country. You would need a sample of a hundred to see how the various levels operate at the grass roots where services are rendered to citizens. That is presumably the whole objective of the federal system. The public law lawyers always talk about federalism from the Washington level, but we must look at it from the county level. Let's take mental health. Mental health at the local level is an enormously complex system today. It's difficult to say whether it is effective or not. W e know little about how the system really operates. Chairman: Exactly what do you want to know? Eulau: W e know the War on Poverty program didn't work very well. At most, 5 percent of those presumably qualified to participate in making decisions about their own fate in the big cities did so. What expectation should one have about citizen participation at the lowest level where presumably the federal system has an impact? Raskin: What sort of questions should be decided? Eulau: There are both policy and administrative problems. Taxing is another decision. I wish you would give us your perception of the federal system as it works today. Elazar: That is obviously a tall order because it works differently with regard to different functions. It is not a system designed to foster "participatory democracy" in the 1960s sense. The model of all governments in the United States is based upon what we now accept as conventional forms of participation. People can vote, be active in politics, run for office, be active in a political party and lobby their

168

Committee

II

legislators. That is what participation means in a city as well as in the federal government. The attempt to change the character of participation was pushed by one segment of the federal government, with certain allies in the states and localities, but without any strong support from the organs of general government, federal, state or local. Any program that is essentially domestic and local in character comes to involve almost anybody who wants to get involved. There is a predisposition to local involvement and to local control, when it is a question of services. They are moving away from that when it comes to regulations. Revenue Sharing Eulau: How true is it of revenue sharing? To what extent are funds going to the cities being used for ordinary services, fire, police and what-not, while the welfare services are not benefiting? Elazar: It shows that there is a local decision being made about this. Eulau: If you believe in categorical programs, you take a dim view of revenue sharing. Elazar: Yes. If you believe in focusing money, you would have to take a dim view of revenue sharing. I'm not very excited about it now. It represents a small fraction of the total funds transferred by the federal government to states and localities. It represents essentially a marginal increment in federal, state or local budgeting for domestic functions in the United States. Eulau: You do not see it as a strengthening of the federal system? Elazar: Its primary role has been symbolic. This is important only because nobody understands categorical programs. Nobody understands how states and localities really control most of the money that comes from the federal government, including many of the direct federal expenditures. Revenue sharing brought a certain amount of attention to the states and localities as if they were suddenly given something that they did not have before. There is no evidence that's true. Has the money been used wisely? Even the money for physical expenditures was used, for the most part, wisely, given the local situation. It was a marginal increment of uncertain duration, during a period in which there was an intense pressure nationwide to reduce the property tax burden, or at least stabilize it. Chairman: Wait a minute. Your criterion for wise use of funds is not creating new clientele for that money, I take it. Elazar: Right. Not creating new clientele that cannot be supported. Not to use the money in such a way as to simply add to what was being covered in other federal and state-aided programs; that is to say, to bury it in redundancy. The interesting thing, of course, is that there were opportunities for creating new services, or serving clienteles which had not been created before, with the notion that this could be continued by giving a slight impetus. When the first two payments went out, everybody immediately had to use the money and show some results. By the second

Effectiveness of Governmental Operations

169

year's payments, you could see an increase in the number of social programs being funded. So you have to be careful in over-generalizing about how much was used for physical improvements. How much of the discussion of these kinds of things starts on the assumption that money spent for physical improvements is bad, and money spent for social programs is good? That is to say, if you paid the salaries of three more social caseworkers, that's good, that's a social program. But if you provide a neighborhood residents' association with money to buy desks for an office, that's equipment, so that's bad. I have some direct personal experience with that, both in research and in my own civic activities. In at least three cases that I know of, money spent for social programs would have been taking things out of the hands of the people, and money spent for physical equipment would have been putting things into the hands of the people. Everybody opted for social programs because that supported the professionals who were looking for money to strengthen a line which they, in all sincerity, believed was going to be more helpful to the community. Eulau: Do I hear you say the disbursal of the funds to smaller cities strengthens the system? One could argue that the money should not be disbursed further than the state, or as far as the county. You said it made a small marginal difference, another $50-75,000, or so. Is this your notion of a reasonable trend? Elazar: I don't think revenue sharing is where to look for the trend. Revenue sharing, for the short run, has served perhaps to strengthen the sense of federalism, and state and local responsibility in America to a minor, but not insignificant, degree. It has had the effect of marginally increasing the chances for perpetuation of small generalpurpose local governments. Again, I don't think any of them were in danger of surrendering their authority before. But this made it even more difficult. Having more money in the long run probably works against federalism, works for centralization, because Congress won't let it go without imposing conditions. New Federalism Hoxie: That's where I am confused, referring to the "new federalism" and a new centralism. With all the things that Mr. Nixon had rightly been tarred and feathered with, there was a conscious desire on his part in revenue sharing to get decision-making down to the state and local levels. It was to actually strengthen the federal system. Chairman: Or at least to weaken the national bureaucracy. Hoxie: Everyone who has recommended these things seemed absolutely sincere in it and felt they were making a step to overcome this top-heavy bureaucracy, centralism. They were getting decisions out into the field. The part that bothers me is your statement that the "new federalism" is really a new centralism. If that's the case, then I must treat with the greatest of cynicism all of these efforts.

170

Committee II

It was suggested that the term "new federalism" was nothing more than a scheme to centralize everything in the new Office of Management and Budget. Those who worked on the Ash Council reports, 2 8 out of which both the O M B and the Domestic Council emerged, and many of us who gave our support to the Domestic Council concept, believed it would be a means to rejuvenating the cabinet departments. I believe it was an earnest attempt to bring cabinet officers into the policy-making, not simply to centralize policies in the OMB. Centralization had come along before 1970. Arthur Burns had been a counselor to the President before he became chairman of the Federal Reserve Board. As chairman, he and Treasury Secretary Simon were among those who insisted up to the eleventh hour that the federal government not bail out New York City, in keeping with a philosophy of attempting a more federalized system. Casper Weinberger, as Secretary of HEW, put it exceedingly well, that there is nothing he could do except administer the programs which year after year were compounded by Congress. As he put it, by the year 2000, 50 percent of the total GNP of the nation would be in federally supported social programs. He went out of office blaming Congress, not the President, for compounding these programs. Raskin: I think that Nixon's new federalism led to much more stringent centralization through the development of the Office of Management and Budget. His federalism pulled together a variety of programs so that the people at the top would be able to cut the bureaucratic relationships between the different cabinet departments and people locally. It put the power of decision-making in the hands of a few super-cabinet officers. Hoxie: But isn't that separate and apart from federalism? To me, centrality in the presidential office is separate and apart from federalism. Chairman: Not if that's the fate. Raskin: Exactly. That was the purpose in it, you know, the development of administrative regions oriented in that particular direction. Capitalism Now, the interesting question to ask is whether that is in the nature of capitalism. As you develop larger and larger corporate units in society, such as General Motors or U.S. Steel, does it become necessary to have a disinterested bureaucracy of policy-makers dealing with the large corporate units of our society because those are the only ones that are able to control corporations and unions? Or if you are a so-called enlightened businessman, do you need that sort of bureaucracy so that you are able to move capital and make decisions in the most efficient and administrative way? You don't want to be bothered with the sorts of questions which may be raised by local citizens. Chairman: In which modern socialist country are these identical questions not raised?

Effectiveness of Governmental Operations

171

Raskin: Well, they may well be raised. That's a separate issue of what the nature of socialism is. Chairman: You used the word "capitalism" as though it creates a unique property of a system. Raskin: I think that's a fair enough point. You see, the issue of scale—as to participation, deliberation and control—is absolutely crucial to the development of a democracy. What I'm interested in is looking at the nature of our system as it relates to the question of control from the bottom. There is something in the nature of authoritarian institutions—the military is a case in point—whether under socialism or capitalism, or in the nature of the present economic system which is in the United States, which seems to press toward centralization of power. In a sense, the federal system becomes a fig leaf for this reality. The question is whether this has to be. That raises a number of interesting points. Very serious consideration has to be given to fulfilling the meaning of the Ninth Amendment in a public rather than a private sense. The rights of the people are not issues of privacy, as the cases suggest under the Ninth Amendment, but rather issues of participation and control. Such an observation results in a different formulation of what the federal system should be. Otherwise, we're in the most extraordinary situation where cities as large and as great as New York City or states as large as Massachusetts are not able to solve their problems. If pornography is viewed as a local matter, it may well be that control over commerce should be viewed as a local matter by the courts. In effect, you'd be able to control General Motors locally and the free flow of commerce by the same principles. If it makes sense to develop regulations over banks, there's no reason why there should not be public enterprises in New York City to develop a city-owned banking system, with its purpose the redevelopment of New York City, and the use of pension funds for that particular purpose. Chairman: I think I've got a name for it: Big Mac. Raskin: No, not quite. What is happening is that funds are invested by private bankers for the so-called highest return to a great extent in international corporations without concern for the development or rehabilitation of New York City. The point I'm making is that it would be useful to try to relate the structural issues of federalism, and control from the bottom, to real questions of economics, defense and security. Elazar: I think federalism has done probably as well as it can, given the thrust of not so much capitalism as 20th century industrialism, whether manifested through capitalism or socialism. Calvin Coolidge vulgarized things a bit when he said the business of America is business. But the American people take much of their esthetics from the world of commerce. Our notions of which power arrangements are right and which are wrong have a lot to do with the esthetics of or-

172

Committee 11

ganizational structures. What appeals to us is a proper way of doing business. The original esthetic was a lot of relatively small, relatively equal commercial units competing with one another in a framework that accepted the boundaries of competition. The Constitution of the United States and the federal system created in that Constitution reflect that. The Industrial Revolution, which came in the middle of the 19th century, brought with it a new esthetic of commerce; a pyramid, a large corporation with a single man at the head, either a robber baron or a great entrepreneur, depending on your point of view. Almost everybody, even muckrakers, esthetically admired the power of a Hill, a Morgan or a Carnegie, or whoever tied that pyramid together. Within about a generation, the latter wanted to apply the pyramid idea to government. About twenty-five or thirty years after the emergence of these great entrepreneurs came Edward Bellamy's Looking Backward.29 The people who read Edward Bellamy as children then went into the New Deal. Raskin: The strength of the federal system is both great and important. I'm suggesting that the corporations are chips off the sovereignty of the state, not vice versa. The second part of this goes to the participatory sense of democracy in a more generalized way. The issues around, say, free speech and assembly in the work place become crucial. One way of beginning to get control over the corporate, economic enterprise, and using federalism in its broadest sense in terms of local participation, would be to apply First Amendment rights to places which are now excluded. For example, on the job. That opens up the whole question of participation and control in different forms from what we presently have. Chairman: Are you betting that if workers were given the choice— between productivity gains translated into a shorter work week and higher wages versus productivity gains reinvested into political institutions which make it possible for them to participate more fully in decision-making at the work place—that they would choose the latter? Raskin: I don't know. It would go in stages. My argument would be that people will choose the less abstract thing. I am not interested in the specific outcome. I'm interested more in the democratizing process at this point, and how indeed we begin to make clear where sovereignty is in the American system. The major problem of the Constitution is it is unclear as to where sovereignty is. Eulau: Democratic decision-making is much easier to manipulate in small units than in large units. Take programs in the mental health field. It is extremely difficult to get the local boards actively participating so as not to be controlled by the county health commissions. Urban Problems Chairman: Goodman:

The classic town meeting is status ridden. Until the New York debacle in the last couple of years,

Effectiveness of Governmental Operations

173

there was talk about the need for decentralization of the American government, for a transfer of powers and functions from the federal government to the states. I think Dick Goodwin30 and others from the liberal side were arguing this. Then, with the coming of the energy crisis and serious inflation, and the sudden emergence of the politics of less, and the New York crisis in particular, that kind of talk has all but disappeared. To many people, the New York crisis demonstrates the inadequacy of our federalism. It argues for a national takeover of welfare, especially if the problems of New York City and State become the problems of other cities and states. It argues that the states cannot solve their problems. Many of these problems can be solved, if at all, only at the national level. Is this wrong? Why? Why isn't it correct that the New York crisis simply demonstrates that we need more centralization rather than less? Raskin: The problem is that these are, in a way, different fashions in politics. In other words, you could construct situations which make it clear that New York City has the power to do certain things. For example, that X percent of the taxes of New York City, rather than going to the federal government, stay in the city. For whatever reason, a city might decide to do that. It doesn't like the federal defense system, or it feels it's not getting a fair shake, whatever the reason. You could say that money should stay here, go for social services. A different form of development would occur for the owning of land and for the banking structure. This would be controlled by a city. Cities and states would repair sovereignty in the decision-making sense. Goodman: You're saying then that somehow New York City has had loaded onto it all kinds of spending responsibilities? Raskin: That's right. It doesn't have the taxes or the enterprise capability to do differently. You have to have things to deliberate about and control in order for people to be serious about an issue. Our jury system works because people have things to deliberate about. Jurors are very serious, in the sense that they care. Eulau: Look what we do. We lock them up in hotel rooms. Raskin: Even given that, there still remains the serious purpose when people judge issues. That's the sort of issue which should be debated: what are the powers of sovereign units in society at this point to do particular things? Are their objectives going to maximize participation? Reedy: The city issue goes a little deeper. Our cities have ceased to be efficient economic communities. They've become too big. Their arteries are clogged. Try publishing a newspaper in a large city and getting the trucks through the streets to deliver the papers. What you are getting is a trend toward cities becoming reservations for those incapable of paying, for all sorts of reasons, including past discrimination. They haven't been trained; society has been against them. We're placing those citizens in the large cities, sort of setting aside informal reservations.

174

Committee

II

One of the biggest problems New York City is having right now is loss of its tax base because the efficient production units are leaving the city. It may well be that we're going to have to consider our large cities as federal reservations for the dispossessed, for the people who arrived too late to get a piece of the economy. I'm not sure just how this affects federalism, but you may find that most of the production of the country is likely to be in places like Armonk, Poughkeepsie or Stamford. Maybe the real problem here is not that something is happening to federalism, but that something is happening to the economic and social base of the country that is dislocating things. We're still thinking of cities in terms of something they're not. Elazar: I agree. W e don't have enough money to spend on something we want, or we have committed ourselves to spend more than we can raise or the consensus of the society will allow us to devote, and we are up against social problems that we really don't know how to solve. I doubt whether more money would substantially reduce those problems that the big cities and a few older suburbs face. New York City's freedom under revenue sharing brought on its problem. New York was able on its own to spend more money, paying higher salaries to take aim at social problems which at one time almost everybody thought we could solve, but which we now know we do not know how to solve. So New York's freedom, in a sense, created its own crisis. The question is the source of that freedom and the consequences of it. One of the rights that the federal system seeks to protect is a right to fail as well as to succeed. Otherwise freedom is meaningless. That is true for people as well. Maybe New York City violated some basic canons that things should be appropriately scaled. For some national things you need a national arena; for local things you need a local arena. No government that serves 8 million people is a local government. New York is virtually the only city in the United States saddled with welfare costs. Other cities do not have to pay for welfare. W h y ? Because New York consists of five counties put together. Instead of letting each county pay for welfare, they run it through the city budget. Maybe one of the things we should suggest is that local matters should be locally scaled. You shouldn't be in a position where a few people can irresponsibly decide expenditures of money without everybody paying, including the people who are beneficiaries. That is exactly what has happened in New York City. The big cities in America have become obsolete. They cost far more than they take in. They still attract all the attention because we rely on metropolitan radio, television and newspapers located within them, though 80 percent of the U.S. population is located elsewhere. Metropolitan dailies focus on the inner city, which becomes a smaller share of the paper's circulation area. Coverage is limited because it is easier for reporters to work from the editorial offices in the inner city than from hundreds of different jurisdictions.

Effectiveness of Governmental Operations

175

Lack of Local Participation Eulau: Let's assume you could decentralize New York into the federal programs cutting across all local programs. The assumption that the city is the best point of access to programs locally is not necessarily so. People may have more access to the federal system. Raskin: That was the assumption of the maximum feasible participation notion. Eulau: Then why do people not participate? Why do people not take advantage of the programs over which they have certain control? If they do not participate, the control moves away. Reedy: In some respects there is a greater degree of participation on the local level than there was twenty-five or thirty years ago. Eulau: Much more. Reedy: The same is true of the interest in political races. In Wisconsin today there is considerably more attention paid to the state supreme court, or to a county executive race in Milwaukee, than there is to the presidential race. This is something under a citizen's control. I'm not as certain as I used to be that money has the same controls over activities that it once had. Our cities have become refuge areas for the poor, miserable, hopeless and homeless. The country area, what is left, is now turned over to the respectable people who have made it literally impossible to live there without a lot of money. So you get an unhealthy physical growth of the large cities, but no economic growth. There you're going to get a reversal. I live in about as large a city as can be efficient in today's world. Eulau: With regard to economic measures, we know little how the programs interact at the local level in terms of advocacy participation. Citizens' groups need their own advocates. Chairman: You mean people who hire lawyers? Eulau: Lawyers, architects. Chairman: All social trends lead in the same direction—employment for lawyers. Eulau: Sure. The question is, is access to the federal government within the federal system easy? Is the federal government likely to be more responsive over the long haul than state or local governments? As an old New Dealer, I have strong biases in this direction; it's much easier to get to federal officials than to local officials. Abraham: In writing these few comments on federalism, I sought answers to questions which occur to all of us as we study governments and theories. What do we do about such mundane problems as welfare programs? Our cities are becoming enclaves for the dispossessed. How do we govern them? Are they going to be able to throw themselves, as the Penn Central Railroad did, on the mercy of the government? Chairman: Let's stop right there. Is there any reason for treating New York City differently from Lockheed or Penn Central? By what criteria do you distinguish the case of New York from the case of

176

Committee II

Penn Central or Lockheed? The main distinction is that the city has a taxing power which the states and federal government have taken unto themselves. Many cities have to rely on a property tax, which is a mistake. If you give the city back some of its taxing powers, it might be able to manage better. Elazar: New York is a city that has virtually every taxing power that has been used in the United States. I don't know what share of the revenues of New York comes from the property tax, but it is not all that much. They have an income tax, a sales tax, and fees. Chairman: How does that relate to their need for the federal bailout, as compared with private enterprise? Elazar: The Penn Central was looted by people who are living off these gains. There should be a recovery of misused assets in the private sector before there is a bail-out. Chairman: That's a Jeffersonian versus the Hamiltonian point of view. Elazar: Right. As far as the cities are concerned, the federal government may provide assistance to the states to bail them out. The states can assist cities in restructuring themselves into solvency. McKay: It's misleading to talk just about New York City. It's a much larger problem than a single city. If New York City goes down, there goes New York State, Yonkers, probably Buffalo, probably Albany and perhaps others. Philadelphia is not in great shape either. The urban market values in this country are very high and are going to remain high. People are going to stay in the cities and surrounding areas. So we must make it possible for cities to survive. I heard three Democratic candidates for President say that the localities should not pay the cost of welfare. Two of them said it should be entirely federal. Jimmy Carter said it should be partly state and partly federal. We need an overall concern for the cities and for the welfare of the large proportion of the American people who live in the cities. Reedy: We'd better see what we're talking about when we talk about the failure of New York City. New York City may be physically incapable of meeting its welfare payments, paying its employees, getting the garbage off the streets, and maintaining the ordinary services. If you had a genuine bankruptcy, New York City would be bailed out. You'd be on the verge of revolution if the honest-to-God thing happened. You're simply not going to let it happen. Goodman: There's a consensus that everything the government performs should fall at the appropriate scale. New York is vastly oversized. If I understand Marc Raskin correctly, he thinks a lot of other things are oversized too and argues for a kind of miniaturization and localization of everything. If we had a country where all the basic units of government were homogeneous, which we obviously don't, we might discuss an appropriate scale for performing this or that governmental function. W e might find that certain functions now centralized at the national level should be at the state and local level. But what is the optimum scale? Is it making all the units interde-

Effectiveness of Governmental Operations

177

pendent? If we're going to have one nation and accept responsibility of one unit for another and one class for another, the thrust is in the direction of interdependency of units and centralization. Welfare Dilemma Reedy: We might look at what is going to stop the welfare system. Anyway you look at it, it's unpleasant. Our welfare dilemma today is due to the fact that we have people of other cultures who came in too late for the opportunity to integrate themselves into the economic system. How do they handle it in other parts of the world? Argentina put a bounty on the head of every Indian. Chile built reservations in the mountains, and put them there. India allows a continuing malnutrition until the poor become weak and helpless. There's no problem with the welfare class in Calcutta today because they're too weak to do much. We're not going to solve it in the classic American style because there are no longer opportunities for totally unskilled people. The days of the melting pot are over. I've been involved in programs for slum kids to train them to be television technicians. They are very skeptical: "Oh, Whitey, don't give me that jazz." Somebody must come up with extraordinary ingenuity, or we're going to have to keep people in some sort of reservation status. The whole thing bothers me. Chairman: There are four groups who came relatively late, to whom that pessimistic analysis does not fully apply: Cubans, Puerto Ricans, West Indians, Chinese. How do you reconcile them with your statement? Reedy: You're going to find relatively few Puerto Ricans making it. Chairman: You're talking about generations now. I was accepting your time scale. Reedy: Where are they going to go? I don't see they're on any track. The Chinese have such a high structure of family life, they're not coming over in huge groups. But the Puerto Ricans are having even more trouble in many respects than the blacks. They are both black and speak Spanish, which can cause misunderstandings. Raskin: In other words, there is a welfare class of people who are black and Indian, and who cannot be integrated into the American system? I would suggest that the problem is far more long-term and much more serious. From 1931 through 1941, unemployment topped 20 percent four times. Every time a recession has occurred since 1958, the number of unemployed has stayed at 7 or 71/2 percent. We're talking about not a so-called welfare class of blacks only, but about the proletarianization of the middle class in this country. People's consciousness is one thing. Their income is something else. In terms of family units, approximately 45 percent of the country exists on $9,500 a year or less. Eulau: A family unit is what? Raskin: Four. Eulau: The median is about $15,000?

178

Committee

II

Raskin: N o ; it's about $13,500. W e ' r e talking about a country of working class people where the reality of unemployment is becoming more and more serious every year and where the debts of families keep increasing. In effect, we have a situation where the harder people work, the more they get in debt. Those with an income of $10,000 to $12,000 a year, over a course of five or six years of married life, find that their debt is much greater than it was in the first year. So I would argue that the welfare question is far more profound and systemic than it appears at first. Chairman: This cuts politically in two directions. O n e implication you w a n t us to draw is that there are more people on welfare than we think. Another implication is that there's a rather substantial class of people who do not consider themselves welfare recipients and who are annoyed that immediately below them are people ripping off the government. The answer for them is not going on welfare themselves, but decreasing the rip-off of the people immediately below them. Raskin: Indeed, the interesting question politically is what is the relationship of those people who see themselves as middle class, but in fact are working class, to a so-called welfare class who receive certain benefits. Some of the people in the upper classes of the country, who in fact have ripped off the middle class in terms of tax benefits and retained earnings, cannot be reached by the political system, or indeed be understood by the people making $10,000 or so a year. W e have developed a subsidy system without understanding that there really are the welfare classes and the privileged classes. The newspapers and the academic community are silent on this. Chairman: Have you included in your calculations f u t u r e interest in pension plans? Raskin: No. The pension plan system is going to explode everything, w h e n it becomes clear that it will be harder to make good on pension plans, which have been used to keep people in their place, when it becomes clear that the money isn't there. Reedy: You mean geographically? Raskin: I'm talking politically and geographically. People over a period of a generation kept their mouths shut, seeing themselves as a part of a corporate structure because they thought there was money at the end of the road. W h e n they come to understand that the pension system is not working, that the trusteeship arrangements are shaky, then indeed there will be another situation similar to the problem of the bail-outs. Bail-out is not the issue in terms of the cities. I'm sure people will say, "Look, we have to save the cities because there will be havoc in the streets otherwise." The real question is whether, under the present constitutional system, it is possible now to plan, to deal with those obvious questions and come to grips with these issues in advance. Reedy: W h a t is the exit f r o m the welfare system? Has anybody got an idea? Cabranes: The kind of intellectual engineering you speak of, putting people on reservations, implies coercion. It can just as readily be

Effectiveness of Governmental Operations

179

employed in making these populations competitive or bringing them into the system. You suggested the impossibility of bringing whole ethnic and racial groups into American society. There's very little evidence to suggest that that effort will fail, like the effort of teaching students audio-visual techniques. There might be some forms of coercion in our cities, the abridgment of civil liberties, if you will, for the whole population. But if you are going to use coercion, you might as well use it to bring people into the system rather than to keep them out. Reedy: Where is the room? Raskin: Are we talking about a capital system? Cabrones: We're speaking of making unskilled people skilled. Reedy: We're speaking of it, but there isn't even much room for skilled people. There is plenty of evidence to suggest that the exits are rapidly being closed. Why can't the pie include more shares for some of the outsiders? Because ycu can't just take the pie and slice it into smaller pieces. Cabrones: Why not? Reedy: Because there are certain irreducible minimums. In the past, when immigrant groups were able to make it, there was a constantly expanding pie. The slices kept getting bigger and bigger. Eulau: But the labor force is increasing, and unemployment is increasing at the same time. Reedy: If you have an overall increase in the population, you are going to have an overall increase in the labor force. But is it comparable to when the immigrant groups made it? Cabrones: Our cities are becoming reservations for the dispossessed and poor. So the question naturally develops, in trying to deal with the city, one of three tiers of our federal system, what do we do with the dispossessed? This has become synonymous with the city. How do we break the cycle of poverty? How do we break the welfare class? Elazar: The cities are not simply reservations; they are also vehicles for mobility. There are people who are passing through and coming out with more than what they had. We understand that our society is influenced by federalism. It's not a question of division of powers. It's a question of the whole set of political relationships which animate the American policy in the federal, state and local dimensions. Obviously, if you are going to have a certain segment of society that is crippled, because of a lack of either resources or food, it is going to affect the federal system. To deal with it, both federal and local governments must work together. I don't agree that because we are now at a temporary hiatus in growth that the size of the pie is forever frozen. We have been at this point before in our history and have moved on to what can be called new frontiers after going through such periods. But there is a problem which is true of all countries; that is, success breeds a kind of failure. The more mobility there is in society, the

180

Committee

II

more likely y o u ' r e going to create a cycle of poverty, or a cycle of failure, among those w h o can't make it. W h y did England h a v e such w o n d e r f u l policemen f i f t y years ago and w h y does there now seem to be a diminution of the police force? P r o b a b l y because increased social mobility has left them with a smaller pool of talent to d r a w from.

Trend Toward Centralization Mann: B y w h a t constitutional right do we designate cities as part of our federal s y s t e m ? A r e n ' t we giving them a status that they don't deserve under the Constitution? A r e n ' t they, in their thirst f o r power and federal f u n d s , taking on services that rightfully belong to the states or to other political subdivisions to provide? M y city w o u l d n ' t dream of fooling with welfare. W e ' v e given up the city health department because there's a county health department. T h e greatest expectations h a v e been promoted b y city politicians. Because of the city vote, the politicians have tried to take unto themselves a particular constituency, w h e n it's rightfully a state constituency. N e w Y o r k could have solved its problem by not assuming certain services that belong to the state of N e w Y o r k or to the federal government. I don't say that block grants are going to solve this. But if I were running the average-size city in this country. I would surrender services and call upon states to render them. W e lose sight of the fact that cities are merely places where a lot of people live. Raskin: In one sense I agree with Congressman Mann. T h e problem is, supposing N e w Y o r k decided to be the fifty-first state or Philadelphia decided to be the fifty-second. Chairman: Y e s . T h e y ' d have votes in the Senate. Elazar: A n d t h e y ' d break up because undoubtedly they'd want local governments within them. Mann: T h e y ' d escape state taxes. Raskin: A r e y o u saying that those cities should become states? Mann: Y o u r suggestion has possibilities. Oakes: Isn't one of the problems that the federal government, over a long period of time, has been pursuing a number of programs, including h i g h w a y building, sewers, housing subsidies? Doesn't this encourage a d r i f t a w a y f r o m cities of the v e r y people, businesses and industries which constitute the base of their support? Isn't it true that federal policies f o r the past decades have tended to f r a g m e n t the cities and fractionalize them? Reedy: T h e r e ' s another problem there. This would really require a tremendous reversal of the trend, that cities like Chicago, f o r instance, h a v e had with the state legislature. Large cities in early d a y s found that not only w e r e states not doing things f o r cities, but states were hampering the cities in doing things. I doubt that many of our large

Effectiveness of G o v e r n m e n t a l Operations

181

cities could go back to the states for help. There's too much history against it. Chairman: If cities were in fact only places where people live, we wouldn't be agonizing over the problem the way we are. The cities have emerged as rather complex social organizations with many functions. They are exceedingly valuable as economic engines, as producers and conservers of culture. Civilized people will put up with a great amount of difficulty to preserve that. It's because cities have for so long in so many different ways proved of such enormous value as social organizations that when they run into difficulties, you have to think twice before you give up on them. Friendly: The idea of getting away from centralization is like Secretary Morganthau's famous plan to turn Germany into a pastoral country: it's simply wishful thinking. The welfare problem is obviously beyond the power of any city or state to handle. The trick is how to get Texas and South Carolina and others to help the problems of the northeast and north central sections of the country. It hasn't helped New York City or State over the last twenty or thirty years that two neighbors had no income tax. Millions of dollars of New York tax revenues have been lost to Connecticut and New Jersey. You may ask how those states got along without an income tax and New York couldn't. They didn't have some of the problems that New York City had. I don't mean to minimize the welfare and social security problems, and the problem that's going to hit us when the baby boom cohort gets to age sixty-five, but we're talking about a small part of the problems here. How are the states going to handle environmental law? We met one phase of this to some extent by setting federal minimums. Otherwise you'd have absolute chaos. You'd have one state bidding against the other by lowering environmental standards. There's another phase we're going to have to deal with soon. How long can we live with the system where an industry with the necessary federal permits has to start all over and get state permits in a state that has higher standards? There is concern about the business corporation situation in Delaware. How long are we going to allow that state to attract revenues and lower general corporate standards below what other states have thought are reasonable? We are in a world where we're bound to have more centralization. As I said before, how do we get some of the states that enjoy the benefit of a good climate, and lack a large proportion of relief candidates, to pitch in? Let's address that task rather than that of returning power to states which don't have the power to perform. Chairman: The American way is subsidy. The states that you mentioned benefit right now from heavy postal subsidies, from reclamation activities and all kinds of development subsidies. Elazar: We overlook counter-elements in this. As soon as states tried to limit who could settle within their boundaries, the court ruled that was not a reasonable restriction. When it became clear that the

182

Committee

II

Northeast was going to have economic power and control much of the finance and capital for development in this country, states in the South and West acting through Congress got the federal government to function redistributively. There is a certain countervailing element. We can't suggest it works perfectly by any means, but it has worked relatively well over the long haul to balance politics and economics. The Presidency Oakes: Since our chairman has taken ill, I have been asked to chair these next sessions. On the subject of the presidency, would you, Professor Abraham, pinpoint four or five areas for discussion and attempt to confine the discussion around those areas? Abraham: One or two things are obvious, but need at least restating in an introductory sense. We are talking about the most visible and the most exciting section of government in many ways. The people feel the President is America, whether negatively or positively. He is the government. Therefore, he is fair game for our love as well as hate. There is no question that the presidency represents the elective kingship—that's Arthur Schlesinger's term—or imperial presidency, or the plebiscitary presidency. All these to some degree are true and depend upon one's perception. His power is awesome. Our presidency is unique in that it combines the powers of chief executive and chief of state. The latter may not mean very much, but it means a lot in terms of allocation of his energies. One could talk about some impossible remedial suggestions being voiced with abandon by everyone: getting two or three Presidents, or two Vice Presidents with each assuming certain functions; increasing the President's term by two to six years; or ultimately repealing the 22nd Amendment. I would like to see that done. However, it's probably not going to happen. I have always felt there should be no artificial limitations on the candidacy of any public officer, except the Comptroller General. I didn't say I don't want statutory limitations, but I don't want any artificial ones. The 22nd Amendment is a spite amendment which was directed at Hyde Park. If the people want the same man again, let them have him. If they want to get rid of him, they ought to be able to get rid of him more easily than they can now. In the order of their remedial needs, the first one is to harness the inner circle of the presidency, limiting Presidents to two terms. I agree with Arthur Selwyn Miller, 31 who says a change has taken place from presidential assistants to assistant presidents. There is not necessarily anything wrong with having assistant presidents; you do need assistant presidents. When President Roosevelt called Jim Byrnes from the Court, it was with the words, " I want you to be assistant president of the United States for domestic affairs." Whatever you may think of it, he was. However, these people must be harnessed or at least reachable

Effectiveness of Governmental Operations

183

through public accountability. The first step of doing that is to have them confirmed. How far up or how far down the ladder do you go in senatorial confirmation of the presidential top assistants? Should you include people who hold the post that Mr. Reedy once held? People like Haldeman and Ehrlichman, with the power they were allowed to wield implicitly or explicitly, must be confirmed. I would be more comfortable if there would at least be a statutory attempt to force accountability via the Senate for the confirmation of top officials. The presidential press secretary doesn't need to be confirmed. O n the other hand, he might be the divine eminence behind the presidency. I realize you can say, how about people like Harry Hopkins? No one knew what he would be like. Recall the stories that made the rounds after Mr. Nixon's demise, that during his last few days in office, Defense Secretary Schlesinger had given orders that no White House emergency order was to be sanctioned absent his specific personal concurrence. The rationale that was offered was simply that we couldn't trust the White House people. We couldn't trust General Haig either because General Haig was not totally the White House. The power in the White House had descended to such a degree that it had become unregulated. Second, we have to define, either legally, judicially or constitutionally, national security and executive privilege. The former is probably impossible to define. The latter is definable, although not perhaps actionable. If one reads United States v. Nixon, there are the beginnings at least of some kind of limitations upon executive privilege. National security depends entirely on how one analyzes it. Third, I am not one who wants to take the presidency and make it into mashed potatoes, but even if we manage to harness some of the exercise of power, I still want some way of getting at him as well as at all other public officers who are either elected for long terms or who are appointed. The process should be easier, less traumatic, and less encumbered than the impeachment process. One of three suggestions I made to the Ervin Committee 32 was to initiate the recall. You could use either Mr. Tugwell's prescription, that after a certain number of years in office, with two-thirds of the electorate voting, you could get rid of an official, or you could employ the method in use in twelve states under which Senator Joe McCarthy was almost removed. That campaign fell short by only about 50,000 votes of the number required. Feerick: What type of election would you have? Like the electoral college system? Abraham: No, sir. There are two types of recall in our country. At the moment we have twelve states and a thousand cities with a recall procedure. Some people have been recalled, like the secretary of agriculture and the governor of North Dakota, the mayor of Los Angeles. They recently recalled the school boards in Sacramento and Oakland. There are two ways of doing it. One, an unfair way, is to list the question "shall we get rid of the rogue?" and at the same time put on the ballot someone else. That's card stacking. It gives people a way

184

Committee II

out. T h e y don't know whether or not he or she did anything wrong, but why take a chance? I would have a regular referendum-type question. I would make it difficult to get a petition going. In other words, not the usual initiative referendum petition of 10 percent. I would insist on 25 percent perhaps of the votes cast in the preceding election. Then I would insist on probably a two-thirds majority. The reason Senator McCarthy wasn't recalled, even though he was on the downslide, was because Wisconsin required two-thirds of the votes cast for the office in the preceding election. They came close, but didn't quite get it. Cabranes: It is a system in which Harry Truman would have been recalled for firing General MacArthur. Abraham: Well, that's the chance one has to take. I would have certainly worked against that recall. White House Staff Chairman: Let's discuss the harnessing of the inner circle of the presidency. Reedy: Yes, because there is a problem here. None of these points can be put in perspective without a comprehension of the extraordinary character of the presidency. W e should consider together the confirmation of assistants and the definition of national security and executive privilege. W h e n one is contemplating the White House, definitions, distinctions, structure, lines of authority are totally and completely irrelevant. There is nothing you are going to do structurally to the office of the presidency because it is a political institution. Political institutions are indifferent to structures. Political institutions can always accommodate themselves and get what's wanted regardless of what the structure says. If the structure is too strong, that's when you get revolution. It doesn't matter whether you confirm the presidential assistants or not, because the facts of life are that the presidential assistants are going to be those to whom he pays attention. It's just that simple. If you require that certain assistants be confirmed, you are going to wind up with some assistants who will be there for show, and behind them will be the people doing the work. Let me give you an example: one of the original purposes of the National Security Council was to be certain that the President had adversary debate before he reached a decision on an important national security measure. W h a t actually happened when I was in the White House—and I don't think that Lyndon Johnson was the only President who would do something like this—was the day before, he would have lunch with the two or three people he really listened to. They would fix up the things the way they wanted. T h e next day the National Security Council would meet. There would be a notebook in front of Lyndon Johnson which outlined what the chief of staff was going to say, what the Secretary of State was going to say and what his responses would be to each.

Effectiveness of Governmental Operations

185

Yes, you can have these assistants confirmed if you wish, but the President is still going to operate the White House as he sees fit and listen to those he wishes to. When you get into defining national security and executive privilege, the definition of national security will always be whatever the President can persuade the public it is. These words are not immutable. If the President wants to determine that national security involves his confidential conversations with an assistant on whether he is going to tap Congressman Mann's telephone, if he can get away with it, that is going to be national security. The point about Mr. Nixon was not that he transgressed a series of laws or that he stepped over certain bounds and the rules committee of the club expelled him. What happened to him primarily was that he pushed another institution—Congress—too far, and the institution fought back. Consequently, I am skeptical of formal structural things. They are pleasant exercises. If you have a President who wants the White House running on a highly institutional basis, you will have a President like Dwight D. Eisenhower. He was accustomed to the Army staff and command system, which he brought into the White House. If you want a free-wheeling White House, you are going to have a free-wheeling White House. It depends on what the President wants and what he can get away with. If I were asked to name one weakness in the Constitution, it is the graceless method of changing the chief executive when he becomes incapable of running the country. However, the more I look at it the more I am skeptical that we are ever going to be able to do anything about it. If you set up a recall, you would have to have a situation which might bring on impeachment anyway. You would merely be bringing political forces to bear under another name. You are not going to solve that problem without going to a parliamentary system where you don't have to demonstrate corruption or anything else. I don't believe this leaves us completely helpless. T h e structural approach is wrong because the structure of the White House is a bowl of jello. The press secretary has a real function. He rents hotel space, charters airplanes for the press, and appears to speak for the President in situations where the President can't speak for himself. The National Security Council secretary controls cable traffic. How that is run depends upon the personality of the person. The President will listen to whomever he wants to listen to. However, you can arrange certain political forces. Instead of trying to define executive privilege, it would be worthwhile to insist that it be invoked in writing in each individual case. Some Presidents have agreed verbally that they would do that, but they didn't. Congress could pass that kind of law, and it would be very effective. Presidents are not going to evoke executive privilege too many times because they are political preachers. Even though they have become isolated from reality, they know what that means. If you require this invocation in writing, the White House staff

186

Committee II

would shrink rather rapidly. It has swollen fundamentally because of executive privilege. The Presidents have a feeling they can do as they please with the staff and no one from a congressional committee is going to call them on the carpet. Controlling the Presidency Raskin: A way to begin the discussion is not with particular but with certain general questions. Is the nature of the presidency now beyond the system so that it can't be controlled? If the answer to that is " n o , " then perhaps it's possible to develop specific recommendations, whether it's assistant presidents, or whatever. But it would be useful to begin by asking if we want parliamentary government, to debate whether that develops a new form of party discipline around program, and whether it aids in the control over the leadership. It is clear that the President does what he can get away with. To the extent that he represents the largest forces in society, to the extent that he cuts a deal with them, he is all right. That is a reality a President calculates. The question of national security has become a frightening concept because it allows the President and the bureaucracy to operate the intelligence agencies, the covert activity of the government, without much control or participation from Congress or the judiciary. The President is co-opted by a system of national security, which he becomes the agent for without necessarily being that much in control over what goes on. If you were to look at what happened in Chile, the President of the United States, Kissinger and several other people did two things. They undertook to run a covert activity directly from the White House while the CIA ran its own covert activity, using in part the socalled Forty Committee. 33 In a sense you had two separate criminal activities going on simultaneously, with the President saying that we are not doing anything wrong, and Kissinger saying we are not doing anything to destabilize or intervene in the affairs of Chile. One asks what mode of responsibility could be developed to control that kind of activity. Eulau: Don't you think the President as an individual is the prisoner of, or dependent on, the huge bureaucratic institutions? Reedy: That reminds me of Lyndon Johnson's pet statement, that he was just a prisoner of his staff. Raskin: I suggest that most Presidents turn out to be brokers among institutions. Their task, both psychologically and politically, is to represent the national will or national interest, and bring those organized interests of society together in some way. He becomes the front for them. For example, say that the national will is represented by bringing together management and labor on a particular issue. The solution which management and labor may come up with may or may not be a good solution, but that becomes the position which the President would legitimize. What happens though with strong Presidents is that each time they legitimate, they charge. In other words, as the phrase

Effectiveness of Governmental Operations

187

goes, they are interested in having capital in the bank. So they keep adding to the bank, so that what they want to undertake, they are able to do because they get the support of leaders of different institutions. T o the extent that the President begins to say, as Nixon did, that the establishment has lost the will to govern, and he attacks the different established powers of the society, then he is in trouble. That is what happened with Nixon. In 1972 he asked for the resignation of all the bureaucratic leaders, 2,500 people. He announced to various people over and over again that the East Coast group had lost the will to govern. He indeed attempted, in my view, to centralize power under the theory of "new federalism" while simultaneously undercutting his base. The major question around the presidency is whether you accept Professor Reedy's analysis that to the extent the President wants, he is able to order activities which are uncontrollable. You can either trust in that man or make certain structural transformations such as a parliamentary government system. Anything in between is not going to deal with the question of unauthorized power. Reedy: It may sound like there is disagreement between Marc Raskin and me, but I don't think there is. He is saying that the President must deal with the institution, the C I A , and anything else. M y point is that in dealing with them, the man has an extraordinary amount of freedom. He can make a fool out of himself and get into bad trouble or he can handle it skillfully. However, whatever structural changes you get should not be directed at the White House but at the things with which he must deal. Raskin: That's the central point. Feerick: I still retain a fairly simplistic view of the system, that we need an independent and strong presidency. We have within the present system the checks and balances that can make the President accountable. We have to focus more on using what the framers intended. Congress has an oversight responsibility with reference to a number of programs. We can get greater accountability from the President, as Congress seems to be moving, in the area of greater openness of the processes of government.

National Security In the area of executive privilege, the judiciary has a far greater role. When we have questions of executive privilege, I agree that the incamera type of requirement is desirable. Judges should have access to what the President is claiming under executive privilege so they can examine the basis for the claim. So my point is, let's improve congressional oversight. Let's adopt legislation that gives the judiciary a greater role. In terms of recall, it is tantamount to impeachment. I would be distressed if every shift of public opinion would produce a recall petition. That would render the presidency unstable, destroy the office and in effect take from the President his leadership role. If he exercised strong leadership in a particular area, he might lose an election.

188

Committee II

W e can benefit from confirmation of assistants because, if I read the Constitution correctly, it's confirmation that makes an executive assistant a civil officer and therefore subject to impeachment. The Preamble has quite clearly articulated a concept of national security for which the President has a strong responsibility. Hoxie: I'm glad to see our friend make reference to the Preamble. W e seem to be departing from the Constitution, and clearly they did come together in Philadelphia to provide, among other reasons, for the common defense. Raskin: That's a different conception of national security. Hoxie: Only because you have made that comment will I make one regarding our discussion about federalism, specifically about the permanence of high unemployment. I didn't see the relationship between that and the suggestion of the degradation of our limited capital system. O n e country that our center works closest with, Egypt, has zero unemployment. With all of the poverty, I am heartened by their efforts to move towards a capitalist system. I don't like to see us spending an hour on federalism talking about the degradation of the private capital system. I seem to have to arise occasionally to defend the number one whipping boy as though everything began with Richard Nixon. Both Secretary James Schlesinger and General George Brown absolutely deny that rumor that no one was to answer the White House phone in those last days. I would like to add that related to that rumor was the suggestion that the commander-in-chief was acting irresponsibly in declaring an alert during the Egyptian-Israeli war. A study of it would indicate that it was handled with great care and skill. So far as the structure of the office is concerned, since we are focusing on national security policy and the creation of the National Security Council, this was an attempt to institutionalize the effective role of FDR, who had an unstructured way of handling things. The National Security Council has sometimes been referred to as Forrestal's revenge. It did not come into effective utilization, although it was instituted in 1947, until after the outbreak of the Korean War. It blossomed into its most effective utilization under President Eisenhower, who did more to effectively institutionalize the presidency than any other modern President. Interestingly enough, we have gotten the false view that he wanted everything reduced to the lowest level, and therefore there were no choices. Quite the contrary. If you examine the sessions of the National Security Council, which increased during his presidency—and he presided at all of them except six during his illness—he enlarged the size of those meetings. Many of them contained fifty or sixty participants. The point I am making is that later, particularly in the Johnson presidency, second and third levels were cut off entirely from input into national security policy. That created a great deal of their frustration. These levels had full opportunity in the council as it was run

Effectiveness of Governmental Operations

189

during Eisenhower's years with Robert Cutler or with Gordon Gray as assistant for national security affairs. Chairman: Getting back to the inner circle of the presidency, is there anything more to say on this subject? George Reedy says it can't be harnessed by making it confirmable. Reedy: I didn't say it couldn't be done; what I said was confirmation would not do it. Mann: He has said that harnessing the inner circle is so wound up with national security and executive privilege that it is hard to separate. Based on that, we can still express opinions about harnessing it with confirmation procedures. I feel that it's a ceremonial act, and little more. During confirmation hearings certain commitments are made by nominees about how they would employ executive privilege, for example. There may be something gained by putting them through that philosophical exercise. But I agree that the President is going to listen to whom he wants. He has such flexibility with his staff that he can name somebody janitor and use him as his chief adviser. In those cases where the inner circle has achieved an institutional identification like the Office of Management and Budget, and therefore has taken unto itself certain independent powers that don't derive on a day-today basis from the President, the process of confirmation would perform a limited purpose. Chairman: You are suggesting that there is an area where there are actually legal powers being exercised by presidential assistants or White House staff who are not subject to confirmation? Mann: Significant, independent judgment, discretion and power. Raskin: Isn't the OMB Director now confirmed? Reedy: That's the executive office of the President, however. That's not the White House staff. Eulau: One of the problems in the Nixon tragedy was that the assistants were perceived by the departments as having powers of their own. Reedy: Well, they do have derived powers. Eulau: However, they were attributed and ascribed powers over which nobody had any control. If I consider somebody by reputation to be powerful, I treat him as being powerful. Haldeman and Ehrlichman were perceived as being powerful, whether they were controlled inside or not, and hence when Haldeman picked up the telephone, he got what he wanted. Reedy: The White House assistant can have power because of presidential inattention. Yet the President can take it back any time he finds out about it. Feerick: Is it clear that if there isn't confirmation, the assistants are subject to impeachment? Mann: It is not clear. Feerick: To me that's an argument in favor of confirmation. Mann: I agree.

190

Committee

II

Notion of the Presidency Raskin: One of the problems is the distinction between the President and the presidency. The presidency notion is new, coming out of the 1930s. The Constitution deals with the President. It does not deal with the presidency. In effect, what you have now is a rather large bureaucratic structure of the executive office of the President, plus the White House staff, which sits somewhere in between the President and the government itself. When I was an adviser in the Bureau of the Budget, one of the leaders of the bureau said to me, "I want you to understand that we do not serve the President. We serve the presidency." He had a very clear institutionalized view of what the role of President and staff is. Smith: The only thing that I would do, perhaps by constitutional amendment for the psychological impact on the Congress and the people, is make grounds for impeachment "conduct unbecoming a President." It wouldn't have to be "high crimes and misdemeanors," so that you get the argument as to what that means. I would clarify further that once the House had acted and then the Senate, it was not reviewable or appealable insofar as the Court was concerned. I think it is now. I would not favor a no-confidence vote, recall, or anything else. Chairman: Let me make sure we have your proposal. You would amend the Constitution to change the term "high crimes and misdemeanors" to "conduct unbecoming a President?" Smith: Or some similar words. Chairman: You would bar appeals from the conviction of impeachment? Smith: There were arguments that impeachment required commitment of a crime, and that the Supreme Court could determine whether the factual matters alleged amounted to a crime and were triable. I would clarify both. Eitlau: Suppose Mr. Nixon himself had been blameless, but the presidency was misused by his staff assistants. The President himself may be a very honorable man, but the men surrounding him may not. Or further, to what extent are agency people deferential towards the staff? Reedy: If the White House assistants misuse the presidency, the accountable person of necessity is the President. He appoints them; he can fire them. He does not have to worry about any formal procedure whatsoever. Eulau: That's the simple view. Reedy: Those are the facts. Eulau: The fact is that the people who got telephone calls from Mr. Ehrlichman and Mr. Haldeman did not know whether they were speaking in the President's name. There was always the assumption they were. How do you know when they are not?

Effectiveness of Governmental Operations

191

Mann: It is a question of degree. Eulati: Given the isolation of the President, he doesn't know what goes on. Reedy: You can't impeach a presidential assistant unless you are ready to impeach the President. I am not now talking about the executive office of the presidency. That's a different thing. I am talking about the White House assistants. Impeachment is no remedy where a White House assistant is concerned, because if the President insists on retaining the services of a White House assistant who is impeachable, then the President should be impeached. Don't forget, the original concept of impeachment, if you trace it back in history, was to reach people who otherwise could not be reached. Its origins in Great Britain were directed at appointees who had a certain status, possibly noble, where they could not be hauled before a court of law and tried. That was where impeachment began. Now, when you are impeaching a President or for that matter a sitting judge, you are impeaching men who cannot otherwise be reached. Eulau: You make an assumption that the power of the White House assistants really derives from the President. Reedy: It does. Eulau: I'm not so sure. Reedy: If they are out of the White House, they are nothing. Raskin: When we talk about the President, we should talk about building or not building the Cabinet. The cabinet officers are the senior officers of the Republic. The question for the President is, how should he deal with the Cabinet as the central organizing instrument of the government? Given the nature of governing, the Cabinet should be seen as more important than White House staff officials. What happens is that a White House assistant will attempt to appear to speak for the President. What will happen is that a departmental person will undertake to test that. If that test shows that the President will support that assistant on that particular case, the department will stop testing, even though it may be the only time that the President would support that assistant over the others. At that point, the assistant can begin speaking for himself. As time develops, a particular assistant will have a portfolio, so to speak, and will speak for all things in an area. The only way to undercut that system is by strengthening the cabinet structure of government, so that, for example, the Secretary of State is more important than the presidential adviser on national security. Eulau: The presidency has become enormously powerful, but the President has become weaker and less effective because he is only one person in a larger institution. Franklin Roosevelt had a fairly small staff which he could control reasonably well. The President becomes more and more dependent on the staff which constitutes the presidency. Reedy: If you start impeaching White House assistants you would give the President one of the most beautiful outs. If something goes wrong, the President should be held accountable.

192

Committee

II

Eulau: All I am saying is that the larger the institution, the less you rely on any one person in that organization to keep house. Hoxie: Mr. Chairman, we make generalizations about the swelling of the presidency, when in fact the W h i t e House staff has been substantially cut under Mr. Ford. It had reached its peak in the Nixon years. T h e executive office of the President and the Office of M a n a g e ment and Budget peaked out at about 1,200. It is now down to about 900. Reedy: O f course, it may resume. W h e n you are talking about 1 , 2 0 0 , you're talking about the White House payroll. If you want to know the number of people working in the White House under M r . Nixon, it was about six to seven thousand. I don't mean only the Park Service and Secret Service. W h a t happens is that they detach people from every agency in government. You can't find how many people are actually working in the W h i t e House unless you go through and count the heads. Hoxie: I am talking about staff people. I agree with George Reedy that there are still too many. However, the point is that there has been a substantial reduction in these staff positions during the Ford years. Eulau: T h e President can't be responsible for 9 0 0 people. Presidential Accountability Mann: W h a t is the level of accountability of the President? Eulau: A modern view of the Constitution should deal with the presidency, not with a particular individual. As Mr. Reedy suggested, the presidency is a political organization. T h a t ' s what makes it so complicated today. Mann: It isn't political insofar as his ability to hire and fire people. W h a t should his degree of accountability be? I agree with Chesterfield Smith that "conduct unbecoming the President" would cover this situation. T o the degree that one of his assistants or staff members misbehaves, he is being accountable if he fires him. W h a t is his accountability if he goes off to Vail, Colorado, for six months and doesn't communicate, or sits in the W h i t e House office and lets Haldeman and Ehrlichman do their thing? It's the same, neglect and lack of accountability. Eulau: W h a t you want is to prevent the misuse of power by the assistants. Mann: I don't advocate something impossible, telling the President what duties he can assign his assistants and who may look over his shoulder. W e have to hold him accountable for proper action upon misconduct or abuse of power by his assistants. His failure to do that has to be attributed to him. Eulau: Not even in the English parliamentary system today is the prime minister responsible for his ministers. In the olden days, in the classical period of the parliamentary system, the prime minister would resign. Not now. Mann: T h e prime minister is still responsible to act in the face of misbehavior by any of his cabinet.

Effectiveness of Governmental Operations

193

Eulau: It's now recognized that the prime minister cannot be held responsible for his ministers. The prime minister isn't what he was in 1880. Reedy: The point is, you can remove the prime minister much more easily. Eulau: But it doesn't happen anymore even in the English system because the institution has become so big. The Congress of the United States 200 years ago was a small committee. It is a totally different institution today. The presidency today is powerful and the President is not. He is totally dependent on his staff, on his advisers. That's what makes it so complicated. Goodman: The theme that has run through several comments is that the President himself has become in a certain sense a prisoner of the executive branch generally, or of the executive office more narrowly, or of his White House staff. Also, that this is bad and we must find ways of curbing the White House staff. One suggestion was by somehow strengthening the Cabinet, and increasing the President's dependency on the Cabinet. I am not clear what values are at stake in the distribution of power between the White House staff and cabinet departments, or what would be gained by the transfer of power from the former to the latter. The Constitution doesn't talk about the cabinet departments specifically. These departments have grown astronomically, just as the White House staff has. Professor Neustadt in his famous book on the presidency34 stresses that Presidents feel they push buttons and nothing happens in any of the departments. If you believe in democratic accountability to the electorate, the one elected officer of the executive branch is limited to the extent that he, the President, has no control over the cabinet bureaucracies. One of the reasons for the rise of the White House staff and the executive office of the President is precisely to provide the President more power vis-a-vis the executive bureaucracies. Raskin: Your analysis is right. Goodman: If it is true that the presidency has grown large, and the President himself correspondingly feeble, I suggest two things. It seems inevitable, as the responsibilities of the executive branch increase, that a single person can't handle them. He will inevitably be forced to depend on a larger number of assistants. When you have a do-nothing President, you have a small staff. When you have a dosomething President, you have a larger staff. You can conclude from that that we should make the staff accountable to a greater degree. They are totally accountable to the President, to Congress and to the public. If the President can't hold them in control because he doesn't know what they are doing, why should we assume that anybody else can? The departments have less fact-finding investigative resources than the President. If their direct accountability to the President doesn't suffice to curb them, how will any other mechanism? Raskin: There are two separate issues here. One is the development of a personal accountability law where you have standards of behavior 194

Committee

II

for government officials, whether in the White House or in the departments. That system could work out well, as people know that they could be held personally accountable for their own decisions and activities. That's one way of removing the shield from bureaucracies. The point about presidential feebleness shouldn't be overstated. We are involved in a series of interesting paradoxes and contradictions. The President of the United States has the ability to destroy the world, but not the ability to send fifty registrars to Mississippi. Eulau: In the next 200 years the political organization of society is going to get larger and more complex, regardless. Raskin: The political organization of society is different from its administrative instrument. You could argue that we have larger administration and less politics, so that in a sense politics is depoliticized as you get larger and larger administrations. Abraham: I realize all the objections to attempting to structure change in the executive branch. I realize that a structure is only as good as the people responsible to it and for it and who obey it. My experience with respect to formalized structure is that when something is down on paper, individuals tend to obey the structure who otherwise wouldn't. That was certainly true in the civil rights rrtovement. There were a number of instances when people began to follow the law, the structures of the legislative prescriptions, only because they were on paper. Otherwise they would never have accepted the spirit of the movement nor any moral imperative. Reedy: We don't make the presidency strong. The President makes it as strong as he can at any given moment. You can set up your structure, and they will obey the structure, but what are you going to have? Raskin: I can agree with Professor Abraham that there is utility to certain legislation or to the confirmation system. However, it should be seen in much broader terms of the presidency or of the executive branch. A better way of looking at this question is in the context of personal accountability by government officials where standards are set and they are held to particular standards of behavior. These can be enforced under Title VIII of the U.S. Code or they can be enforced through the resignation system. Executive Privilege Chairman: Let's return to the subject of national security and executive privilege. Reedy: Given the scope of what we are trying to do here, maybe the real question before us is not executive privilege but whether the presidency is the kind of office to govern the affairs of the United States under the conditions that prevail. Other questions are all interesting, but are they crucial? Do they address what our purpose is? Goodman: What are the alternatives to the presidency? Reedy: You can have quite a few. You can discuss the possibility of the parliamentary system, or having something with a more corporate structure in which the President is no longer selected by a free poll.

Effectiveness of Governmental Operations

195

Vou might discuss whether there should be additional barriers around the President, whether he should have additional powers, or this question of the assistant presidents. Hoxie: Since we talk often of the parliamentary system, it may be pointed out that executive privilege is a lot stronger in England than it is in the United States. In Great Britain cabinet members on occasion simply refuse to respond to parliamentary questioning in areas of national security policy. Radzinowicz: It is true that the parliamentary procedure in England is much stronger than the system in this country. I wonder whether, because of recent events, you may not be inclined to go possibly to the extremes now. Can one run a government of a great country if you weaken executive privilege, if you weaken the leadership too much? And are you then not inviting other dangers? Raskin: What other dangers? Reedy: You are talking about executive privilege here and executive privilege in England. Executive privilege here is basically a function of the fact that the President is an independent part of the tripartite government. You can't infringe upon certain of his prerogatives without having one branch infringing upon another. In England you have a situation where the government is legally a creature of the parliament. Parliament can get rid of the government any time it wants. Our Congress cannot get rid of the presidency. Radzinowicz: Is it not true, sir, that you raise the fundamental point, who should lead the United States? Raskin: Under the Constitution there are those of us who believe the Congress is the preferred branch. Eulau: The first branch. Raskin: If you like. There are those who believe that executive privilege is used by an executive bureaucracy to do pretty much as it wants. The only checks up to now that Congress has had are contempt and subpoena, or holding up appropriations: the only ways Congress gets information out of an executive. Reedy: Executive privilege always depends upon the strength of the President exerting it. If a President is sufficiently stubborn, no legal decree or any decision by the Supreme Court will matter. The American government is a constant interplay of forces chivvying each other. At the moment, the presidency has been badly chivvied because of the bad mistakes that were made. I do not agree that the presidency is impotent; at the moment it is probably weak because the nation is lacking sufficient united fiber. The strength of the presidency and the strength of the nation are almost synonymous. There will be a later period when you will find that the President will get away with just as much as he wants in executive privilege, and somewhere along the line he is going to abuse it as the last one abused it, and Congress will assert itself. This has been the story of the United States. It is a sort of trial by combat, a balance of forces. Raskin: We should try to distinguish between the issue of secrecy

196

Committee

II

and the issue of executive privilege, which may or may not relate to secrets. Reedy: Executive privilege is a totally different thing. Raskin: I know, but people relate the classification system of secret, top secret, etc. to executive privilege. Chairman: Can each of you give a half-minute definition of executive privilege? Reedy: T o me, executive privilege is based upon the concept that you can't really interfere with the presidency, that he is entitled to his private thoughts and private advice. Certain people become an extension of the President, and to meddle with them is to meddle with the President. Secrecy is usually a classification of certain types of information on the assumption that its publication would do injury to the United States in varying degrees. I should add, by the way, that secrecy is a question of executive order, not of law. Enlau: What bothers me is that it is a fiction that everything becomes an extension of the President. The bureaucracy is not an extension of the President. Reedy: The point still remains that the House Judiciary Committee cannot subpoena the President to appear. If they ever do, he will tell them where to go. Eulau: But if some assistant secretary of state goes up there and says he doesn't have to answer questions because of executive privilege— Raskin: Your point was made by Kleindienst when he said everybody in the executive branch can be covered by executive privilege. Reedy: I don't know what you are going to do about it unless you try to advance the proposition that Congressman Mann can subpoena a President. If you aren't going to say that, there is no answer to your dilemma. Chairman: Is there any constitutional change that could in any way bear on this? Reedy: I would like to see it written into law what some persons have agreed to do voluntarily, that is, to claim executive privilege in writing. Once ten or fifteen of those pile up, you would find it wouldn't be a popular pastime. Mann: In the field of neither national security nor executive privilege are we dealing with a likely constitutional change. We are dealing with an ongoing necessity for the Congress, or the country, for that matter, to determine a better definition of national security. Arthur Selwyn Miller, to whom Professor Abraham referred earlier, asked what is acceptable government behavior and what is not. There are different rules and laws in the conduct of external affairs and domestic affairs. Miller says that Congress should assert its constitutional duty to participate in making national security decisions. But he recognized that ultimately, as far as detail is concerned, those decisions are executive in nature. There is a necessity for an ongoing effort on the part of Congress which is really not being done, to define national security, particularly

Effectiveness of Governmental Operations

197

in the realm of external affairs vis-a-vis domestic matters. The same thing is true of executive privilege. Arthur Miller refers to the fact that executive privilege is the least used of the methods for nondisclosure by the executive to the Congress. That's true. Nondisclosure, though, is something that can be overcome by subpoena power, by putting up with delays that are inherent in trying to get answers out of bureaus and the executive departments. Reedy: You are not going to get any more information if you abolish executive privilege, or if you abolish the secrecy system. What is really happening in the modern world is that the simple way to keep information from Congress is not to let them know it s there, or send them five truckloads with permission to go through those truckloads. If I were an administrator, I would send you all the Pentagon papers at once and you would be helpless. The only reason I am for some sort of clampdown on executive privilege is that it may lead to some diminution of the White House staff, which I personally regard as a desideratum. The White House staff has become a blanket of insulation. Secrets and Secrecy Radziriowicz: You can't run a modern government without executive privilege and without a certain amount of secrecy. It is impossible. Even small countries like Switzerland can't do it. We in England have it today. Every country in the world has it. It is a question of degree, and how it is carried out. No one can say that President Roosevelt had less executive privilege and less secrecy than President Nixon. The only thing one might say is some Presidents do it better than others. You can't weaken the United States because the whole world depends on you. Reedy: Sir Leon, I would agree with you, but at the moment I am not quite satisfied for this reason: the most important problem before the United States is to reestablish cohesion and unity. The whole secrecy system has bred a suspicion to which there is no answer. There is no way of knowing that everything is properly classified. The secrecy system is not really of great importance in terms of information withheld from the American people. I have held every clearance there is, including some where even the name of the clearance is classified. Out of all that I could turn 96 percent of it over to the newspapers or the Soviet foreign office without any trouble. Most of it is dull stuff indeed. As a practical matter, if you abolish the entire secrecy system, there would still be a lot of secrecy merely by not telling people what is happening. Radzinowicz: I don't deny that the secret way of operating may have been carried too far in this country. Reedy: Something has to be done to reestablish the confidence of the American people, who have had an idea that there is a man with a top secret stamp classifying all sorts of merely embarrassing things.

198

Committee

II

T o some extent there is a justification for it. Y o u have to think of the political effects. Goodman: D o e s n ' t the recent experience of the Pike Committee 3 5 and the C I A leaks suggest that the American people might be just as disenchanted, if not more outraged, by rampant disclosure? Reedy: I don't think so. W e have to cauterize the wound, and the wound is deep. Raskin: It would be very useful to take a look at the role that secrets and secrecy play in society. Sir Leon, what do you want to keep secret? Radzinowicz: A great number of things relating to security, to foreign affairs, to certain plans that I can't put into effect. Eulau: However, your argument is really what people find objectionable. You are arguing that because the United States has a role to play in the world you must deny the American people a certain amount of knowledge. T h e r e are a lot of people who think that the United States shouldn't play a great role in the world. Hoxie: T h a t ' s a distinction of sovereignty, whether you're in Switzerland or the United States. It is inherent in executive power. Eulau: It becomes a circular argument. Because we are threatened from the outside, therefore executive privilege is justified. It makes no sense. It is the determination of the danger which is at issue, and who is to decide whether the United States is in danger? Raskin: How does one decide who should have the secrets? Is it the case that the people who hold the secrets become a separate class as against the people who don't? Radzinowicz: I would like to ask you, sir, without being accused of being flippant, on what ground were you against admitting the New York Times reporter? 3 6 T h e ground of secrecy? Reedy: Fairness. This had been stated as a meeting closed to the press. Several newspapermen asked me if I would keep notes for them, and I told them I would not. T h e n I find one newspaper asked for special privilege. Radzinowicz: Now may I say that the same principle can be extended to public affairs. In fairness to other people with whom you negotiate, and while you don't yet have your mind made up about an issue, you want to have a certain secrecy. T o me, secrecy is as important in life as openness. O u r life cannot be based on one element only. It must be a mixture, a balance. It may well be there has been too much secrecy. A great number of friends of the United States feel the same way. In this I can see the danger to society, but I can also see the danger to society and to cohesiveness if everything is left completely open and accessible. Reedy: Y o u have to realize that even if the secrecy system were abolished by law, many things would still not be open. Suppose you have an international negotiation. T h a t doesn't mean that those negotiations get published every day. T h e negotiators can meet in secret. W e are talking about an executive order which does allow certain levels of security to be stamped upon a document. M o s t of the silly things,

Effectiveness of Governmental Operations

199

such as classifying the New York Times top secret—which has happened—are happenstances of a rule which says that in a group of documents the lowest must take on the security stamp of the highest classification. There you have the real problem. Fundamentally, that was supposed to hide military secrets. I doubt there are any military secrets anymore. We still have this idea of a mad scientist in the cellar with the cracked microscope who is fiddling with some dials. The thing goes "bleep bleep" and out comes a death ray. The reality is that we have a group of scientists, and the Soviets have a group of scientists, and the Chinese have a group of scientists. They all study under the same professors; they all read the same books; they all write letters to each other. This is a highly structured world we live in, and I am not sure that from a military standpoint there are any secrets anymore. One of the more famous stories—I don't know if it's true or not, but it seems to me it could well be true—is of the newspaperman who was trying to find out how many people there are in the CIA building. Of course, he was treated as though he were asking to commit a terrible crime. He eventually called the Soviet Embassy, where they gave him a figure right away. A bit baffled, he asked how they got it. They said it was very simple. They had taken optical equipment, measured the dimension of the building, then checked the local building code which specified the amount of cubic airspace required for each person. Knowing the cubic airspace requirement within that building, they could determine the number of people in it. Eulau: That's not what we are talking about. We are talking about cases where the government withholds information on Angola which should have been made public. Suddenly it was on the front page of the New York Times, making it quite clear that things were going on in Angola long before it hit the headlines. Congress is entitled to know. Reedy: There I don't know what you can do about it. Raskin: According to the Constitution, Congress has the power to keep part of its journal proceedings secret. As far as I know, that power does not relate to the President. The issue around secrets and secrecy is an important one relating to shared knowledge. It's obvious that there are secrets in life. The wife keeps information from her husband. We have rights to privacy, and journalists and Presidents want to have their private files. However, none of these really goes to the enormous question of a system where secrecy develops a separate government, a separate ethos, a separate point of view. It becomes a blood oath of people who supposedly are in the know. It becomes an instrument of keeping information of one cabal within the executive against another cabal within the executive. It doesn't have to do with the Congress or the American people. It becomes an instrument of power, of one group against another within the administrative structure itself. My experience in government was that the greater the immorality, indecency and crime, the higher the secrecy classification. Beyond that

200

Committee

II

is the question of the importance of debate about matters in a democracy, and the importance of legitimating conclusions. It may not be the case that the country would have concluded not to intervene militarily in Angola. In my view, had we intervened it would have been a horrible thing. At the very least, such decisions should be debated publicly. T h e notion that 25 or 100 people are involved in S A L T talks with the U.S.5.R. is crazy, because hundreds of millions of people's lives depend on the results of those talks. In that sense, secrecy becomes the instrument of most mad results. Hoxie: I agree wholeheartedly about public debate. That is basic. Much of the tragedy of getting deeper into the Mekong River Delta was due to the absence of public debate. By contrast with the Gulf of Tonkin Resolution 3 7 ten years before, on the question of intervention, there was a vigorous public debate. In 1954 Mr. Eisenhower had asked the Congress whether he could go in and save the French at Dien Bien Phu. Congress told him in no uncertain terms how it felt. T h e way the executive invites these things is the key and is essential to the health of our democratic system. Congress made it emphatically clear it didn't want to have anything to do with going into Dien Bien Phu, despite the persuasion of the chairman of the Joint Chiefs of Staff. Impeachment Chairman: It's obvious that all these topics are interrelated. Should we amend the Constitution along the lines Chesterfield Smith suggested, using language of "conduct unbecoming the President" to loosen the power to impeach? Raskin: That's much too subjective. Chairman: Should we make the process of impeachment or removal from office constitutionally easier? Abraham: I would be happy to accept Mr. Smith's idea. I have no doubts in my own mind, as a sometime student of Madison, that impeachment lies in betraying the public. W h e n a magistrate betrays the public trust or the public faith, said Madison, he has forfeited that trust and is removable. You do not have to amend the Constitution. I would certainly opt for some clarification, if that seems to be needed. Increasingly, I am coming around to two thoughts I expressed at the very beginning. The effectiveness of the governmental process does depend on the faith the respondents bring to the government. All we have heard goes to that, and the discussion has not changed my skepticism or pessimism. I am dedicated to the proposition that the only way this government is going to function is by muddling through, because we are apparently unwilling to, or incapable of, arriving at a fairly specific modus operandi of procedure. Unless the public has faith in its government, no machinery is going to atone or bring about the kind of goals we want. Unless we are willing to take certain steps, be they drastic or band-aids, as

Effectiveness of Governmental Operations

201

Arthur Miller says, or as Professor Mosher 3 8 suggests, adopt some thirty-five specific reforms, we are going to be muddling through. Sometimes it will be better and sometimes it will be worse. Sometimes it will be accepted by 20 percent of the people, sometimes by SO percent. Eulau: When you use that phrase "muddling through," we have nicer words for that. W e can talk about exchange theory, coalition formation. You are loading the dice right away. You can see the American system as an enormous attempt at continuous coalition formation between the tremendously diverse interests in this society which are continuously engaged in exchange. The public domain resembles what we call a market. That is one model. I can see the market as an orderly system where values are exchanged, where bargains are struck. In a reasonably free society that is a preferred value to the kind of organizational models which may resemble the General Motors Corporation, or even the university. The university model is not particularly appropriate for the public domain. Congress is my favorite institution, the first branch. If your goal is to maximize the kind of values which I cherish, then "muddling through" looks good to me. Even if you have thirty structural changes, they will be obsolete in no time, and you will get further "muddling through." W e shouldn't discuss these structural things apart from substantive issues. We cannot be politically neutral with regard to the substantive issues which concerned the framers of the Constitution. The landholders of Virginia and the merchants of New York were very interested in the writing of the Constitution. Feerick: I see the merits of Chesterfield's suggestion, but it's always been my belief that if we are going to amend the Constitution, a burden of proof has to be sustained. I don't believe a need for amendment dealing with removal has been demonstrated. When we look at the history of impeachment, we have at least two impeachments of federal judges for conduct that was not necessarily violative of a criminal statute. W e have the recent example of the House Judiciary Committee articulating in a magnificent report 39 the point of view that betrayal of trust, as ambiguous as it is, is a standard. That was applied recently in the Nixon case. The Constitution is quite clear in terms of the sole power of impeachment and sole power of removal. The fact that a question was raised about the meaning of "high crimes and misdemeanors" did not deter the House Judiciary Committee, did not interfere with the working of the process. I would be much concerned about any structural change that could weaken further the institution of the presidency. Mann: I tend to agree. The problem is the public perception of what the language means, and the political pressure brought on Congress to keep it from acting in cases where it should. For example, Congress doesn't have an ongoing mechanism to deal with impeachment. W h o would you complain to about the activity of a civil officer? If it is a judge, you complain to another judge, perhaps. If it

202

Committee

II

is a cabinet member, you complain to the appointing authority, maybe. But not to the House which has the punitive power. It's partly because of the phrase "high crimes and misdemeanors." In the case of judges, the Constitution says they hold office during good behavior. T h a t explains the impeachment of judges. I would rather see the Constitution amended to make the term mean what is intended. The House Committee acted according to its concept of what was abuse of the office, or betrayal of the public trust. Future Congresses will do the same. However, from the political standpoint, there almost has to be evidence of a high crime or misdemeanor to get the procedure started. There are going to be impediments to the procedure, trying to be overcome by ideas like the Reuss proposal 4 0 and others. T h e neatness that Chesterfield Smith suggests, I am afraid, is impractical. T h e imperative is not there. Feerick: I recognize that one cannot define all acts that might constitute high crimes and misdemeanors. But if we were able to frame legislation dealing with some of the questions on national security, that legislation would constitute a body of positive law. Then if there were a violation by the President, there would be general acceptance that a high crime or misdemeanor was indeed committed. Mann: Well, that's a good thought. It goes along with the suggestion you made earlier about trying to define the parameters of national security. It would also help if the Congress set up a mechanism. Three years ago upon the departure of our great friend, Emanuel Celler, I led a little effort in the Judiciary Committee to reorganize and provide for the long list of duties of each of the subcommittees. Impeachment was on that list. As it turned out, we renamed the committees, gave some direction as to responsibilities, but didn't adopt a specific or detailed list. The House Judiciary Committee could, probably without anything other than committee action, establish a gathering place for information. Chairman: One thing you have both suggested is that there is really a large unwritten Constitution in the United States. T h e House Judiciary Committee report, while not quite enshrined in the Constitution, nevertheless is an important precedent. It may not be binding, but is likely to serve as a guide in further impeachment proceedings. Another question relates to removal, whether the Constitution adequately deals with the situation, where a President becomes ill, mentally or otherwise. Hoxie: It seems to me that the 25th Amendment wrestled with that, and I believe we ought to give it a fair trial. Removal and succession are extremely delicate matters. Abraham: T h e more critical question was raised by Mr. Reedy. Without calling it that, his examples all went, not to the physical illness, but to the "otherwise incapable" or "otherwise unsatisfactory." He plowed a furrow much more dangerous than mine of recall. Eulau: He can't get rid of himself the way Harold Wilson could resign the other day.

Effectiveness of Governmental Operations

203

Abraham: Harold Wilson didn't resign; he was totally incapacitated. Raskin: The President can resign. In any case, you are raising the fundamental question again of a vote of no-confidence, which would cause the President to resign. Chairman: Or recall. Eulau: There are always two votes of no-confidence in the English Parliament. One is a general vote, and the other is on particular legislation which the prime minister lays down, where he is more likely to get support. This is why he does it. Raskin: At present, it appears that a President is able to govern, as Nixon said, with one-third of one house plus one vote. That's all he needs. Recall Process Abraham: We have too lightly dismissed my recall proposal. It has worked in twelve states. While Oklahoma has overdone it—there was a time when they impeached or recalled every one of the supreme court justices—it has worked in many places. It has worked quite recently in subsidiary units of government. All I am saying is, it can work. It's not frivolous. Raskin: I don't think there's anything frivolous about it. But why is this something peculiar to the President and not to the Congress? Abraham: I apply it to everybody. Raskin: In that case it seems to be a perfectly sensible notion. It picks up on the whole Progressive movement of the early 1920s. Abraham: In the paper, I apply it to all public officers, but I don't think it would apply to the House. People like Mr. Mann have to run constantly. Hoxie: Looking at the modern presidency, there is now a rather high regard for Harry Truman, yet a system of popular recall could have come close to removing him in his last year of office. According to the polls, he had the lowest level of support of anyone who has occupied the office. I'm glad presidential tenure is not based on polls or petitions. Feerick: The part of the proposal that bothers me is not the twothirds vote, but that 25 percent provision that triggers a period of uncertainty as to whether or not the same individual will remain in the White House. There are so many potential issues of great emotion in this country that to allow 25 percent of the people to trigger this mechanism would sharply curtail the independence of the President. Abraham: You are raising the crucial question of transition. Feerick: I see the rationale for the electoral college—that the people could not be trusted to give us capable leaders—as very relevant to the recall proposal. I reject that rationale. Eulau: In California we have recall in local jurisdictions. All too often it's simply regarded as a political tool. It's not that the whole council has engaged in unbecoming conduct, but just that some people don't like its policies, so they have a recall election. That makes for an unstable government. The recall is used frivolously.

204

Committee

II

Abraham: Is it always being used frivolously? Eulau: I have not come across any recall of a particular councilman because he embezzled money. It's used as a stick. It comes out of the Progressive movement, to make it possible for citizens to intervene in the policy process. You may be in favor of that, but don't fool yourself that recall is being used to keep city councilmen honest, because it's not. Chairman: The President sometimes is too responsive to the public, to polls, and such. Wouldn't it be helpful sometimes to have a President who could take an unpopular position? Hoxie: Precisely. Raskin: I would agree that the President should stop worrying about the polls, because those are passing half-uttered feelings of individuals who responding to questions. But it's different where an active community begins to say, "Look, we don't want this particular thing." I see it not for the purpose of punishing an embezzler, but as a policy instrument for holding officials accountable. Eulau: Well, then you have to discuss the virtues of participatory as against representative institutions. Raskin: Right. Congress Chairman: Gentlemen, let us discuss the Congress. Abraham: I propose one or two specifics, and will lead with an observation I stress in the paper. If one accepts Dean Pollak's indictment of the legislative process in his keynote, namely, that Congress represents "a decisive institutional failure," and that it persistently shirks its duties, it is probably true for two basic reasons, which underlie my own criticism of Congress. From whatever point one may wish to view our governmental process, Congress is we. This is our branch, the one that represents our sovereign implications. In many ways, if it has been a failure, it is because we have been a failure. It is a very representative body. If it isn't of the quality that some may wish, it is our own fault. However, if we accept Dean Pollak's indictment, there are two reasons. First is the federal structure on which the legislative system is based. Federalism is not an easy institution with which to deal. Second is the absence of a strong disciplined political party system. With that background, let me cite one major issue which has major implications for the federal structure as well as for separation of powers. We ought to seriously consider some kind of parliamentary system. If you give each political scientist a piece of paper and ask him to put down the perfect system of government, absent any consideration of responsibility or even historical proof, they would say the British parliamentary system. The fact that the system is having some problems would not gainsay the response. At any rate, without suggesting that we adopt the parliamentary system, we ought to consider something that is before Congress now.

Effectiveness of Governmental Operations

205

This is a proposal, House Joint Resolution l l l l , 4 1 which as now amended calls for a vote of no-confidence which Congress could bring against the President. Congress too would have to resign and stand for reelection with the President. This proposal has been advanced seriously by a man of considerable experience and intellectual province. We have a responsibility to look at it. Although initially he did not want to bracket it with congressional reelection, in order to get a modicum of support, he found it necessary to do so and thereby, of course, enhance the notion of responsibility inherent in any such arrangement. Freedman: Does that go to the effectiveness of Congress as an institution? I wonder whether most legislative concerns today may not be so incredibly complex that the system by which Congress informs itself and reaches judgments about them simply is no longer adequate. Can we make Congress more effective? Is Congress institutionally capable of doing the job it is supposed to do? Abraham: This resolution would represent a change in the whole conceptualization of the separation of powers. Some reservations might result from that particular consideration. Congressman Reuss makes a point of abjuring any thought of scuttling our system in favor of a truly parliamentary structure, but it certainly would be a major step in that direction. If he were here, he would say, "I propose that in large measure because I don't consider us ineffective, but because we are too frequently at war with the executive branch for reasons that should not be advanced as warlike." Reedy: I don't think Congress has failed. Quite simply, nobody gets what he wants out of the Congress, because a nation this size wants so many different things, there must be a compromise. As long as these human conditions prevail, Congress is always going to look like a failure except in those rare periods when some crisis creates a temporary majority. Eulau: Yet we criticize them for that, too. Reedy: Then we say they are rubber-stamping things. The point remains. All that is happening here is that in this extremely complex partisan world of ours, we have a habit of mistaking the failure of achieving our own goals for a failure in the system. One of the major mistakes made in the consideration of Congress is to regard it solely as a part of the decision-making process. I do not believe that the fundamental purpose of the Congress is to make decisions, in the sense that the President's or administrators' purpose is to make decisions. Congress is the focal point at which we resolve political differences. Political differences are very strange things. It's not that fifty people here and severty-five people there automatically carry the day. It is trying to get some microcosm of society, in which Congress is an imitation, a simulation of the forces in society. The forces in society are not equal. Sometimes they become more or less so. We are talking about a constantly shifting process. The fundamental thing that Congress does is act as the arena in

206

Committee II

which we fight out our political differences. W h e n Congress does not do something, the material is not there to permit a resolution of the differences. When Congress does do something, the material is there. This can be altered by more or less effective leadership. Take civil rights, for example. If Lyndon Johnson had not been there, I believe we would have had a civil rights bill by 1960 or 1961. With Johnson there, we had one in 1957. A civil rights bill was not possible earlier for all sorts of reasons. T h e point is that Congress is not a body that goes out and collects facts as is done in judicial process, or as a President should do. This may sound cynical, but it is not. Facts are somewhat irrelevant to Congress. What counts in Congress are attitudes, how you resolve differences between people who don't like each other very much. W h e n you start looking at it from that standpoint, Congress is an effective instrument. Too many so-called reforms consider Congress as an administrative body. W h e n it comes to structural reform of Congress, the same kind of legislation comes out. It doesn't matter whether you change the Rules Committee, or the 21-day rule, 42 whether you have a speaker on a committee or not. The thing that does change Congress is when you change the political base. No matter whom you put in there, that person still has the problems of constituent relationships. And if that person steps over too many constituent relationships, they are going to get rid of him and get somebody else. W e are told that Congress has failed to do so many things. Almost everything Congress has not done has been because the majority vote was not there. W e talk about an energy policy. There's only one way you are going to get that, and that's to turn the decision-making over to a group of experts. I don't know how you are going to select them. Somewhere along the line you will get an energy bill, but not now because you do not have the necessary relationship. There is only one other point I want to make about a lack of a disciplined party system. I don't think you can have a disciplined party system by calling for it. The British disciplined party system is a result of an evolutionary development which matches their government. A disciplined party system is not possible in a separation of powers government. It would not serve the country if it were. W e have developed a structure in which there is no method of securing a coalition government. You can't coalesce one man. The cabinet officers are servants of the President, nothing else. You cannot run a country this size without having the coalition concept in there, but what we have done, without planning it, is by evolution developed a coalition nominating system, which is what our political parties are. Our parties do not even exist between elections, except as an office in Washington trying to pay off the debt of the last election and prepare for the next convention. The only place you have genuine parties in the United States is in local areas, like Cook

Effectiveness of Governmental Operations

207

County where Dick Daley used the Democratic Party as a patronagedispensing device. If you examine the platform appearances of each party, you find the same people show up at both of them. Our real political life in this country is not spent in the political parties but in the AFL-CIO, the garden clubs, in the Sons and Daughters of the American Revolution, the John Birch Society, etc. All those organizations go before both platform committees every four years and try to get a piece of the action. There is no way you can sustain disciplined parties. W e had them in the Senate up to 1912 when senators were selected by state legislatures. I am one of the few people to have seen the minutes of the Senate Democratic leadership back in 1903. It's fascinating to trace what happened after they went to the direct election of senators. The first two years, of course, they still had complete party discipline. The second two years it began to crumble because one-third had been elected directly. The third two years it sagged badly because two-thirds of the Senate had been elected -directly. The last time, when all of the Senate had been elected directly, they forgot it. You are not going to have disciplined parties as long as congressmen and senators have direct access to their constituencies. Cabranes: You are speaking of state party discipline. Reedy: True. But national party discipline was possible for some bosses in Washington if they had sufficient contact with people around the country. Congressional Budget Office Eulau: The Congressional Budget Office, from what I understand, is trying to set a ceiling for the Congress as against a ceiling set by the President. Mann: It's going to help, but it is little more than an inter-disciplinary improvement in procedures. We involved ourselves for the first time in evaluating the President's revenue estimates which affect the deficit. W e adopted an overall budget figure, and then we cut the costs to fit the pattern through the appropriations committee. Eulau: I just wanted to ask whether that doesn't modify the general statement. Reedy: Not in the slightest. When I came back from the Army after World War II, the first story I covered was the Legislative Reorganization Act of 1946. 4 3 The purpose was to reduce committee structure and regularize it. There were 55 House committees and 39 Senate committees, and they were going to reduce them to 29 House committees and 19 Senate committees. The House wasn't happy with it, but they had to vote themselves an increase in pay, and were afraid to do it without having a congressional reform act. So they adopted the 29 House committees and 19 Senate committees, and promptly set up 255 subcommittees, each complete with chairman, stationery and staff. That gives you a pretty good idea how Congress handles reform. Eulau: Well, the budget thing is really of a different nature.

208

Committee

11

Hoxie: One of our hangups is to make separation of powers an inflexible barrier between the branches. It is clear the framers had in mind something far different. Their inspiration was Montesquieu's The Spirit of the Laws,44 and Montesquieu's model was the British constitution. What is emphasized in The Federalist papers is not just a separation of powers, but also a commingling of the branches working together. Madison emphasized the importance of effective cooperative relationships. The other principal source the framers read was Locke. Although it is unpopular to espouse the Lockean concept of executive power, they had it much in mind. They realized we needed a strong national government, and they were writing an effective policy for it. This included erection of the office of commander-in-chief. In The Federalist papers Hamilton sought to allay fears regarding this new office. Arthur Schlesinger and others like to quote him therein as saying the commanderin-chief is no more powerful than the principal general or admiral. Hamilton's purpose was to secure ratification of the Constitution. That is not the Hamilton who several years later expounded Lockean doctrine so brilliantly during the course of the Jay Treaty deliberations. Hamilton: How much credibility or relevance would you attach to Montesquieu, Locke and even Berger in terms of understanding what our structure should be today? Hoxie: The spirit of shared responsibility in policy formulation is as valid today as then. If one wants to get a fuller view of the interpretation of the relative powers and relationship between the Congress and the presidency, one has to examine the development of those relationships in the first twelve years of the national experience. Hamilton: I understand. Eulau: Now apply it to the overall budget of the United States in 1976. Hoxie: All right, let's be specific. There is the Budget Reform Act, 4 5 designed in part to enable Congress to maintain its power of the purse. This is in the spirit of Montesquieu of a commingling of authority, in this instance a sharing in the budgetary process. Congressional Responsiveness Feerick: There are some specific things that could be done to improve the responsiveness of Congress in serving the people. The sort of thing I have in mind is campaign financing. There is a relationship between a contribution and a congressman's responsiveness. A case can be made for a great deal of reform in that area. While lobbyists perform a valuable function, there are times when certain lobbyist groups have too dominant an impact on the system. I see a need for more effective legislation in that area. I applaud efforts to open up government through "sunshine laws." That development should be encouraged. Hamilton: I keep coming back to the Reedy-Eulau school, that

Effectiveness of Governmental Operations

209

you'll get it when sufficient forces in the Congress or operating on Congress want it. Eulau: Congress not only resolves conflicts; it also crystallizes conflicts. It brings out conflicts which otherwise would not be brought out. Reedy: Congress usually tries to sweep things under the rug. One thing congressmen do not want is trouble. Eulau: However, you cannot resolve conflict until you have clarified it. Reedy: Conflicts usually force themselves upon the Congress. Eulau: Somehow the conflict is being articulated by somebody. I see Congress as the major conflict crystallizing, clarifying, resolving institution of the society. What do you think? Reedy: Crystallization, yes. Eulau: The "shoving under the rug" business occurs when it isn't clear that resolution can be had. These three functions are critical in this complex pluralistic system. Hamilton: Would not shoving something under the rug be a form of resolution? Eulau: Yes. Reedy: You are assuming a Congress that is separated from a social process. I am assuming that Congress is intimately bound with the social process. Hamilton: You are right. Reedy: And the way you get things out of Congress is not to go to Congress and present a case. First you get a constituency, then you go to Congress. Cabranes: Yes. If you have small constituencies, or unimportant constituencies, the absence of party structure and discipline only means it will take longer to deal with certain problems which are significant. Take civil rights. If the constituency is dormant or weak, the mobilization of that constituency is a much longer process than if you have a strong party structure in which the elite sympathize with civil rights matters. Let me give you a somewhat obscure example. A month and a half ago, the Senate completed action on the incorporation of the first colonial territory under the American flag since the acquisition in 1917 of the Virgin Islands. Virtually no one is aware that the Congress has done this by approving the administration's proposal to dismember the trust territory of the Pacific Islands, and take the most compliant of those island groups, the Marianas, and convert them into something called the Commonwealth of the Northern Mariana Islands. For me as a former colonial, it was a rather outrageous business. Mind you, it was all done with the apparent consent of the people, as are all American colonial experiments. In this case, 10,000 people in the Western Pacific are being offered, quite literally, a subvention of $1,000 per head, the ultimate McGovernite dream, plus a one-time payment of some $19 million in return for the right to build bases in the Mariana Islands. There is no con-

210

Committee

II

stituency in this country that cares at all about this matter. There just isn't anyone interested except a few academic ankle-biters. So despite respectable editorial opinion in the New York Times, the Washington Post, and other papers, since the military was interested and there apparently was no constituency in opposition, it flew through the House by voice vote. In the Senate a bit of screaming and yelling by a strange coalition of liberals and conservatives delayed it for four or five months. But the annexation proposal inevitably succeeded. If you had organized political parties, if you had party discipline, it's conceivable that the elite could have an impact upon the congressional party in matters which are important but do not seem to touch a large number of people. Reedy: How are you going to get the disciplined parties? Cabranes: I agree it is quite impossible. I am simply pointing out one of the defects of the system. In situations which involve questions of social justice or "principle," but which involve small constituencies, there is no way those constituencies can have an impact. Reedy: The only way I can see of remedying this defect is to abolish democracy. Cabranes: I'm not certain it's that simple. Let's take the example of colonialism in postwar Britain. The readiness of the British Labour Party to decolonize after World War II had nothing to do with a constituency in Britain. That doesn't make it any less democratic a system; it's just different. Reedy: They did have certain things to do with it. Cabranes: The leadership of the Labour Party was sensitive to certain kinds of problems and certain principles. But decolonization had little to do with the Trades Union Congress and the other constituencies of the British Labour Party. It had everything to do with the intellectuals and the elite of the Labour Party. Reedy: It also had something to do with the strain on the British budget. Before World War II it was a strain that could be borne because England was profiting economically from those colonies. Cabranes: And they would have continued to profit. Reedy: No. They weren't continuing to profit because they no longer had the possibility of working in any of those colonies with what amounted to slave labor. Cabranes: Howard K. Smith described the decline of Britain and correlated it to what he called the end of the looting of the British Empire. It was arguable in 1946 in simple economic terms, and in terms of the interests of the various constituencies of the British Labour Party, that colonialism was a good thing. It was not argued because of the impact of the elite upon a well-disciplined party which was ideologically committed to decolonization. Reedy: Also, what it would take to get enough forces into places like India to resist Gandhi, who at that time had mobilized tremendous numbers of people. The constituency does not necessarily have to be in England. As long as they were controlling India they had to have a

Effectiveness of Governmental Operations

211

lot of British soldiers there. They had to pay and feed those soldiers. Many were getting killed in Malaya. Britain was having difficulty around the world. You can't say it was solely a question of ideological purity that moved the British. Protest and Petition Hamilton: The alternative to a nonresponsive Congress is not abolishing democracy. When you get that kind of a situation where small constituencies have limited access because they don't marshal their resources, you have a political system that is going to be rather crisis reacting. Therefore you have to have an increasing round of protest politics. There are two dates interesting to me. August 5, 1965, Watts, was followed in ten days by the passage of one of the most important pieces of legislation, the Voting Rights Act of 1965.46 A lot of people said, "Well, why is it that they would riot when we just passed the Voting Rights Act?" They perceived that piece of legislation as relevant to the needs of a lot of people who were rioting. We had to wait until we got some fairly good pieces by Wildavsky and Pressman, the book on Oakland,47 and Moynihan's Maximum Feasible Misunderstanding,48 to understand the difference in response from certain constituencies to congressional action. My point is, we don't have to abolish democracy to get what we are talking about. You are going to aggravate in the minds of some people the legitimacy of protest politics, to the extent that the electoral political system remains the way we have described it, and that's unfortunate. Reedy: How are you going to get bills through Congress without a majority, and where are those majorities going to come from? Cabranes: Professor Hamilton is saying, in effect, by rioting. Hamilton: That's one unfortunate way. Eulau: If you ask how Congress differs from the executive and the Court as an institutional structure, it's that it basically has no goals. It is not like a shoe factory and doesn't have a five-year plan. The executive sets certain goals. The President comes in with a program. The Court deals with specific cases. The Congress as such doesn't have a program. The notion of that model of administrative efficiency in Congress is not right. What you are saying now is there should be a congressional program in the interest of minority groups who have great difficulties of access. Jehovah's Witnesses in Nazi Germany did not have access. The Tyrolians in the northern part of Italy don't have much access to the Italian parliament. The Watts riots were most unfortunate, but basically there is the right to petition. What's the alternative? The English Labour Party, the socialist party originally, had a program. They were ideologized in a reasonably homogeneous society. However, it is the unique quality of our legislatures that they do not have goals. We talked about expertise, professional knowledge and how it can

212

Committee II

be brought to bear on the political process. The answer is in bringing the experts and politicians together over a long period of time in a relationship of trust. A professor walking into a congressional office in Washington is nonsense. The whole problem of bringing certain particularized, specialized goals of minorities to the attention of the Congress, so that ultimately these dreams can be addressed, is a long process. Democracy is an extremely expensive governmental operation to perform. I have never been a student of Congress, only of state legislatures and city councils. With the tremendous turnover in politicians at the state and local level, it takes a long time get a "program objective" into the legislative hopper. Minority groups have sometimes not understood this. It is most unfortunate, but the right to petition is still presumably the avenue by which one gains access. Cabranes: Yes, but all we are saying is that even in the exercise of the right to petition, certain minorities, even those who adhere to constitutional values, will find this legislative system does not fulfill certain values which are important. The access you have described did not assure blacks in this country that the values we now recognize to be universal were values which Congress would fulfill. Reedy: Actually, what you have to do is go to nonpolitical parties, principals, on the question of the black minorities. The first real action came from presidential action, but the President was rather restricted in what he could do. The next real action came from the Court. It was more effective. But there is a peculiar thing: it was more effective because people assume that what the Court does is not political. However, no issue is really settled until it goes through Congress. What both the President and the Court did was to provide the impetus. You did not begin to get momentum until the matter went to Congress, and the constituencies began to work their will. The only way in a democracy is to go to nonpolitical bodies, which may not give you satisfactory responses, but can give you some response. Chairman: Are you suggesting that the courts, and the administrative agencies to which Congress delegates all this power, are the ones who have to resolve the real conflicts? Do I understand you to say Congress is passing the buck? Reedy: Ultimately Congress has to resolve the conflict, or you do not have an adequate resolution. But sometimes an issue reaches the point where something is required but the political bodies cannot act. In that case you have to indulge in a bit of sorcery and have the executive agencies and the courts do something that they really should not do. The difficulty is they can only go so f a r or they will lose their credibility. The strength of the courts is that people regard them as nonpolitical. When a judicial decision comes down there is a seal of divinity on it. After two or three decisions that are clearly political, people stop looking at that seal of divinity. This is w h y the Court goes in spurts. There is a need, sometimes, to fall back and start putting some more deposits in that bank.

Effectiveness of Governmental Operations

213

Abraham: You say Congress cannot act; therefore, items are bucked along to other branches. I would substitute that they don't want to act in many instances. The difference in the two verbs becomes crucial to me in my analysis of the judicial role. I agree that much is bucked to the Court; for example, the desegregation controversy, the abortion controversy, elements of the criminal justice process, church-state areas. All of these I should have rather seen settled by the legislative branch. Reedy: I can't prove this, but I am convinced that at the time of Brown v. Board of Education, Congress was incapable of acting. The pro-civil rights majority was phony. Hoxie: We are particularly fearful about the powers of the commander-in-chief. Yet, Presidents Truman and Eisenhower, in their commander-in-chief capacity without the passage of any legislation, did exercise that power to desegregate the armed services. Eulau: That's true. Abraham: They can always act when they want to. But there are certain areas where they don't. Eulau: Congress doesn't deal with one issue alone. There may be other things which must be bargained over at the same time. Not only the goal problem and the conflict problem, but the simultaneity of a variety of issues, make Congress an enormous exchange market. Credit is spent and credit is accumulated. Congressional Oversight Mann: I am afraid my viewpoint is not quite as broad or as philosophical as yours. There are studies which allegedly show a correlation between judicial activism and a weak Congress and President. What is weak, and what is the pressure for the social issues concerning which they eventually legislate, is arguable. Of course, that is a good cop-out for the Congress and the President. I agree with George Reedy's analysis of the function of a legislature. What bothers Congress at the moment is the public perception that it has administrative responsibilities that it doesn't, and really shouldn't, have. As a result, we hear more and more about oversight. Yet oversight means that we are going to assume more and more administrative supervision. It's demonstrated by a bill that was recently reported out of the Judiciary Committee's administrative law and governmental relations subcommittee. 49 It creates a congressional veto on all regulations promulgated by the agencies, in effect, a ninety-day veto period where before the regulation goes into effect it is sent to the appropriate committee of Congress and either body can veto it. Let me go back to three items. Campaign financing. I am not certain what you refer to. Last week we refused to include congressional offices in public financing, but we do have a campaign financing law that is rather complete and rather strict. The same subcommittee on administrative law and governmental relations will report out in the next couple of weeks a bill it has been working on for a year or so on 214

Committee

II

the lobbying question. 5 0 It's a question of degree: how many phone calls one has to make before the businessman has to register himself as a lobbyist. I think it will be reported out. T h e Sunshine Law 5 1 was acted on by the full Judiciary Committee yesterday. Even though we are moving in those areas, they have little effect on what bothers me. Ever since I have been in Congress, when we haven't known what to do, we called for boldness on the part of the leadership. W h y don't we do something? Let's create another agency of government, if necessary, to get us necessary investigative information. George Reedy says these factors are not going to make much difference. I don't know. It would be great to know that Congress had the capacity. W e are talking about centralizing staffing, not about the individual congressman's staffing. Individual staffs are almost totally occupied with constituency-service in politics, with little legislative research capabilities. T h e typical member does not have access to committee staffers to any substantial degree. Most of us are familiar with S . l . W h e n the subcommittee on criminal justice got S . l two or three years ago, we had one lawyer for the minority, one lawyer for the majority, and they shared a secretary. T h a t was our staff. W e were to revise the United States Criminal Code. There had been some preliminary work done, but the responsibility was ours. If that job were entrusted to any other institution, whether it was the Attorney General or the American Bar Association, there would be not less than fifty lawyers assigned to the task. There has been a substantial change in the last two years. T h e Boiling committee, 5 2 although generating few substantive changes in the committee system, made a small business select committee into a full time standing committee. W e still have grossly inadequate central servicing and staffing. Computerization? The executive has 6,450. W e have seven, if you count the two at the G P O , the two at the Library of Congress, the one that handles our electronic voting, the one that handles the payroll and the one that the House Committee on Administration has. That is our computer capacity, Which is virtually nothing. Committee System One more point: the committee system still exists. You can talk about constituencies, organized political parties, innovation, initiative; but, gentlemen, the fate of legislation lies in the hands of the subcommittee chairman. If he is interested in it, it is going to move. If he is not, it is not going to move. Each subcommittee, because it is based, as is Congress, on the seniority system, achieves a special interest in its area of jurisdiction. And what motivates it to move primarily is the subcommittee chairman. Nevertheless, that structure is an impediment to the responsiveness of Congress. How can that be overcome? It won't be easy, but it can be ameliorated by a strong party caucus, by an involved strong party steering committee which polices the progress of significant legisla-

Effectiveness of Governmental Operations

215

tion, and by a central leadership which isn't locked into the traditions of the past, a past when government was less complex and the business of Congress was less burdensome, in terms of sheer numbers of matters, and when seniority was more sacrosanct. Frankly, I don't feel that our leadership has moved boldly enough to keep pace with the changing role of Congress in terms of organization, computerization and centralized service. So the committee system, although necessary for handling the 19,000 bills and resolutions, has built-in inefficiencies and obstacles that are the product of the personality and special interests of the subcommittee chairman. Hoxie: Are you saying the seniority system should be done away with in the committee? Mann: The changes we have made in the past three years have defanged it considerably. What is the alternative? The Boiling committee sought to restructure the committee system, but in the final analysis it would have even more narrowly defined a committee's special interests. It would have split up the Education and Labor Committee into two committees. Then there is a problem arising from the rather "free choice" system of selection of committees by members that has been too little discussed, and is giving rise to a dangerous situation. I refer to the rather obvious motivation of members, mostly new but sometimes old, to select committees that either are politically sexy or are of some special interest to them individually or to their constituencies. The latter motivation results in a gradual conversion of a committee or subcommittee to an advocacy group. When I first came to Congress, I compared committees to small legislatures having characteristics of bipartisanship and a degree of objectivity. As we have democratized our system of committee selection, I have seen the objectivity fade, and I have seen special interest, paternalism and bias gain control as the members with axes to grind have increasingly taken over the committees. Thus even with my impossible workload, I find that I can no longer rely upon the product of a committee with confidence that its decisions were arrived at objectively. Congressional-Presidential Communication Hoxie: Between Congress and the President, in the final analysis then, isn't much of the difficulty a communications problem? In regard to computers, perhaps there is a necessity for an information retrieval system for Congress if it is to share intelligently in those crisis decisions and in national security policy formulation. Moreover, instead of fifteen different congressional committees converging on foreign affairs, perhaps there should be a composite committee which would represent congressional interests with the President in these matters. It's impossible for him to physically communicate with fifteen different committees in policy formulation. Mann: I would have to endorse what you say 100 percent. My major frustrations since going to Congress in January 1969 have been

216

Committee

II

the lack of information, the lack of access to information and the lack of investigative staffing to get information. T h e typical action by a subcommittee when a bill is introduced is to write the appropriate executive agency for an administration position. You may get a response in thirty days, but more likely in six months. You may never get a response. You may get an incomplete answer. It's the things you don't know to ask for that affect your ultimate action. When I write an executive agency in connection with any matter, I receive a typical bureaucratic answer that says no more than it has to say in order to respond to the precise language of my letter. There ought to be a crossfeed, an independent capacity in the Congress to get information. You know how the typical appropriations committee works? It calls in those asking for money to justify their requests. " T h a n k you, Admiral, see you next y e a r . " That's the process. T h e new budgetary procedure, which will provide through the Congressional Budget Office a sizable staff, is doing better work, including, as I have already indicated, an examination of income estimates and governmental policies that affect revenues. T h e President can say we are going to get $4 billion from oil and gas leases next year when we know that we are not going to get a dime. That happened the last fiscal year and could well happen this fiscal year. When Jerry Ford was first appointed, he came to the Hill once or twice, and indicated his intention to have communication, but that faded. Eulau: That varies a good deal from subcommittee to subcommittee, doesn't it? Some subcommittees have excellent relationships with some agencies. In fact, if you want justification of the seniority system, it certainly produces knowledgeable people over time. Abraham: I am not opposed to the seniority system. Eulau: W h a t you said about the subcommittee is right, but it has some good functions. Over time, some subcommittees develop close relationships with the administration. Mann: The expertise that a committee develops because of the seniority system is almost an essential ingredient. Eulau: The subcommittee is an identifiable target for interest groups, in the agriculture field, in the labor field, and so on. You can target it fairly quickly. Mann: I began to recognize that groups I had voted with during my first session in Congress came along the second session and patted me on the back. They said, " Y o u are our friend. W e know you are going to vote with u s . " All of a sudden I realized I was nonobjective. That kind of influence develops in the subcommittee structure because of cooperation, expertise, working with, whatever you call it. However, I don't know the alternative to it. Hamilton: W h a t would cause you to be more vulnerable than you are now to the leadership within the Congress? You said you don't really feel that vulnerable to it. Is it possible to increase that vulnerability? Mann: The fourth district of South Carolina elects me. I guess I

Effectiveness of Governmental Operations

217

am a maverick insofar as the party is concerned. They have almost given up asking me how I am going to vote, much less try to pressure me. There would have to be built-in sanctions relating to my committee status. What else is there? The possibility of achieving a leadership position is not that attractive to the typical member that he will compromise in order to get it. There is little the party can do. When I first came to Congress, the Democratic caucus would meet once a month. All that would happen would be that one of my colleagues would try to convince the Democrats that his particular revenue amendment bill to the Social Security Act was a good thing, that the caucus ought to endorse it, thereby putting pressure on the committee to vote it out and get his bill passed. We got bored, and the caucus lapsed into sporadic activity and accomplished nothing. Two and a half years ago we organized a Democratic policy and steering committee, which I hoped would have the effect of identifying party positions with reference to legislation, something behind which the party could throw its weight. It has functioned partially that way. It is better than the old system. Because anybody can have access to the full caucus to present a pet project, it has not yet developed into a cohesive body for the purpose of effecting the progress of legislation or the enactment of a program. It has none of the elements of long-range planning or goals. It has that capacity. There is no reason that the caucus could not organize itself in such a way as to develop longer-range carry-over programs. Hamilton: Sanction is just not going to be there. Reedy: We have a leadership that's not very determined, Congressman. This is new to me. Cabranes: What if they were determined? What could they do? Mann: People keep quoting Sam Rayburn to me, about how he could get things done. Well, if I were there and Sam Rayburn said, "Young man, go do this," I don't know what he could have done that would have caused me to do as he said. Eulau: Well, leadership is predicated on a positive relationship to the White House. Reedy: I think you would have found some of your appropriations going down the drain or your private bills having difficulty getting out of committee. Mann: This is possible. I would assert that the parochial interests of congressmen are not nearly what they used to be. So many programs have been developed with objective criteria administered by the executive branch that Congress no longer controls project by project. Reedy: I think that's true in the big cities. Congressional Reforms Chairman: Congressman, you mentioned that you have inadequate committee staffing, yet you have the majority staff and minority staff. It always struck me, as a lay observer, that there should be one staff for the benefit of all. Is this totally unrealistic and ridiculous? Mann: Particularly when we are talking about a subcommittee of

218

Committee

II

seven to fifteen members who have worked together and presumably p u t partisan considerations aside. At the subcommittee level partisan considerations are of little importance. Frequently staff, more t h a n members, will develop opposition among themselves. It is a vicious thing to have minority and majority staffs, but the minority insists u p o n it. T h e r e are many things the minority party in Congress does that seems obstructionist, but they feel that the majority party is better organized and imposes upon them. Eulau: They keep the majority clean. Mann: T h e majority could be a little more objective. T h e minority party is always much better disciplined. In any event, that is a bad system, but nevertheless is going to continue. Radzinowicz: Would you say it is the consensus of this meeting that it is a bad system to have majority and minority staffing? Are you all in agreement on this point? Chairman: No. Reedy: This was one of the great reforms. This is w h a t intrigues me. Every fifteen years we abolish the reforms of fifteen years before. T h e majority and minority staff concept was hailed as one of the shining lights of the last reform movement. Cabranes: Is there a consensus on the legislative veto as a good or bad idea? It's probably a bad idea. Mann: The one 1 refer to relates only to regulations promulgated by agencies. Chairman: T h a t ' s pretty broad veto power. Cabranes: T h e objection, which makes a lot of sense, is that vetoing administrative decisions, executive decisions, invites pork barrel decision-making. Abraham: It violates the separation of powers. Eulau: Senator Proxmire wants to have every proposal of the N a tional Science Foundation submitted to Congress. Cabranes: T h e National Science Foundation case is a particularly outrageous one. A f t e r all, the NSF system is a system for distribution of monies according to a system of merit. Mann: Yes. And a proposal for congressional veto of their grants did come up, but was not enacted. The bill that has been receiving action was introduced as H.R. 3658 by Congressman Elliott Levitas of Georgia. His bill would have allowed a veto of administrative regulations only if they contained penal provisions. However, that bill was broadened by the House Judiciary Committee to apply to all regulations promulgated by executive agencies, not merely those with penal sanctions. At the same time, it is my opinion that this bill is not intended to apply to financial allocations by agencies. This bill, H.R. 12048, recently passed the House Judiciary Committee by voice vote and will probably reach the House floor for action during this session. 53 Cabranes: It's a tremendous problem. It's the use of the formula first devised, I guess, in the Reorganization Act of 1946. Freedman: There are those who argue that reorganization-type acts

Effectiveness of Governmental Operations

219

are unconstitutional. There was a fascinating dialogue between Senator Ervin and Professor Bickel several years ago in which Bickel argued that the delegation by Congress to one of its committees of the power to engage in unreviewable lawmaking was unconstitutional. ChairmanThe power of the whole Congress to veto administrative regulation is obviously constitutional, however. Mann: The committee itself cannot take enforceable action. Abraham: As I listen, the comments prompt me to conclude again that we are committed to muddling through. W e obviously have no intention of engaging in any wholesale change of our governmental process. If we do, we would really have to do it in a rather drastic fashion, which I hesitate to advocate. The conclusion is inevitable that we are dedicated to continuing to muddle through. That is perhaps just as well. I'm not upset about this. Goodman: Professor Wechsler suggested that we consider enlarging congressional constituencies, particularly in the House of Representatives, thereby reducing the size of the House membership. You will recall Mr. Smith's proposal that we have a unicameral rather than bicameral federal legislature. I would like to table both those suggestions. What differences would those changes make? To what extent is the present size of the House of Representatives an efficient one? Would it become a more effective instrument if there were fewer or more members? Does the size of the body enable it to examine a wide range of legislative subjects more carefully than it would if it had a fraction of its membership? My guess is that it does. The House is generally much more expert than the Senate. But would the cost of that expertise be justified by the benefits of party discipline? If you cut down the size of the body, would having a much larger constituency make it feasible to have party discipline, now impossible because each member has a small and parochial constituency to which he is responsible? Reedy: You still have to get elected no matter what the size of the constituency. Your senators have a very large constituency. Goodman: Party discipline is no greater in the Senate. Reedy: Less, much less. Goodman: W h a t would be the merits and demerits of enlarging the constituencies and reducing the size of the House? Eulau: The larger the constituency, the more independent presumably is the incumbent. There are more interest groups; he can play off more people. O n the other hand, it may well increase the competition in the district, and turnover may be higher than it is presently. What is it? About 90 percent get reelected? Mann: It has not been quite that high lately. Eulau: However, the larger the constituency, the more difficult the whole problem of representation. Hamilton: You would get substantial objection, I am sure, from the new black elected officials beginning to move into the Congress. Reedy: Very strong. If you are going to have a larger House con-

220

Committee

II

stituency, all you are going to do is have a somewhat weaker Senate. In other words, what's the point of going a half step to the Senate or going as far as the Senate? It is true, if you had a larger House constituency you would have a greater independence. On the other hand, do you really want to remove House members from that kind of pressure? In some black districts, if expanded, the representatives from those districts would no longer worry about the blacks. Hoxie: Let's leave the Congress the same size. Would we make our executive-congressional relationships more effective to have everybody go on a four-year term—the House, the Senate, the President—all elected at the same time rather than staggered? The congressmen, as soon as they get in, are running again. The President, who may have come in with a very narrow margin, nine times out of ten is going to lose support after two years, before he has been able to enact his programs. Would such a reform have any merits? Or would it be less amenable to public opinion? Reedy: I am not sure that I want the government to be so all-fired efficient. The Gestapo was efficient and so is the KGB. Aside from that, you would have a tendency to lose what I regard as a healthy competition between the executive and the legislative. I see no harm in the executive and legislative fighting; it's healthy. Length of Terms Hamilton: My big problem is the two-year term. I am not sure that this two-year term is long enough. Reedy: One of the beauties of the House's smaller constituency is that when it comes to raising minority problems, the small constituency and the two-year term are ideal. When it comes to resolving them after they have been raised, you have a much better resolution in the Senate, which is a more graceful body and capable of doing things more subtly. There is a need for a volatile body, the House. Hamilton: You are right. Isn't it true, many of the representatives start running immediately after they are elected? Reedy: Nothing wrong with that. Mann: People say that maybe the Congress is too responsive. That's a negative approach. Whoever said a congressman's job is to get reelected didn't misstate it too far. If you are representative of your people, meaning responsive, you are going to get reelected. That's your job. That goes against the independent judgment theory of Congress, which I subscribe to, but nevertheless it is so true that it diverts us from our jobs. Journalists started predicting in December that this session of the Congress would be nonproductive because it was an election year. It is true, each of us becomes more responsive, more political during this year. W e devote much of our energy, time, attention and, often to a questionable degree, staff time to this business of politicking. The prospects of getting it changed are slim. Congress is not going to pass

Effectiveness of Governmental Operations

221

a resolution for a four-year term, and be accused of perpetuating itself in office, or be accused of not wanting to be close to the people. Every time I hear the statement that we don't want Congress to b e too efficient, I have to agree. In an effort to solve this problem, I will take Mr. Nixon's one-term presidency and a three-year House. Let the Senate stay six years. Put the three-year House out of phase with the President so they corrupt each other once every twelve years, or something like that, and you've got a happy compromise. Hamilton: Could the House member succeed himself? Mann: Oh, yes. Abraham: That's really quite original. Goodman: A six-year, one-term President? Reedy: I want to come out against the six-year term for President. I saw that in Chile. Eulau: T h e reason for limiting the presidential term obviously is that that's the end of the road. But for a congressman a limited term would be to cut out all competition. Reedy: That's the trouble with the six-year term and with the twoterm limit; it is the end of the road. A President has nowhere to go. He can't run for Pope. So the result is he forgets all about the people and becomes responsible to history. Unwritten history is a poor guide. Mann: You must realize that I am a product of my own environment in the Congress. I saw Richard Nixon use the awesome power of the federal government to run for reelection for four years, and that frightens me. That's why I would rather have a six-year lame duck. Reedy: You are in bad shape any time you say the American people cannot vote for somebody. That's what happened in Chile. W h a t people really wanted was a man they couldn't vote for. Hoxie: Would you like to have the 22nd Amendment repealed? Reedy: Yes. It is a mischievous thing. Actually most Presidents can't go beyond two terms. It's mischievous to have on the books the provision that the people can't vote for somebody. Abraham: I think we are almost unanimous on that point. Goodman: Repeal of the 22nd Amendment? I am not sure the Congressman would favor that. Mann: No, I don't think I would. Hoxie: The A B A has reservations about it, too. T h e memory of a four-term President lingers. Feerick: I can't get excited about it. I agree with Mr. Reedy's observation that the way the modern Presidents have been going, it is unlikely we are going to have one more than two terms. Reedy: It's poor policy. I really would like to repeal parts of the succession amendment. The second part really bothers me. I can see the possibility of a coup d'état. I don't see anything wrong with the first part which assured Ford's succession. Abraham: The 25th Amendment is too long. Reedy: One tip-off is the language is so prolix. It has been my experience that when people discover they really do not have a solution to a problem, they write around it. They were trying to solve some-

222

Committee

II

thing: " W h a t do we do if the President goes insane." And they didn't find any real answer to it. So they came up with 5 0 0 or 600 words. Congressional Research Assistance Feerick: Cyrus Vance and others have suggested the creation of an independent institute that would service Congress. 5 4 It would be nonprofit, funded by public monies, and would be a vehicle for members of Congress to get research assistance in connection with various matters of interest. Do you think something like that would be useful? Mann: I certainly do. I had been hoping that the Government Operations Committee, which is primarily the group to deal with these problems, would call on the G A O to expand its investigative power. It could be converted into an organization of the type that you referred to even though it is governmental and under the legislative branch. Goodman: What do you mean by independent agency? Feerick: Independent in the sense that private citizens would actually handle the apparatus of the agencies. For example, a mixture of distinguished citizens throughout the country would constitute the board of directors. If a member of Congress wanted a study done on something, the agency would find people in either political science or the law to do it. That study would be made available to members of Congress. Goodman: Isn't that what the legislative reference service of the Library of Congress does right now? Eulau: The National Research Council serves the administration all the time. Endless reports on technical matters come out of the National Research Council or the National Academy of Engineering. Mann: There are two problems here. One would relate to the inadequacy of the services now available. W e have gradually expanded them, but they are grossly inadequate. Second is having the institutional framework or procedure that puts it in the hands of those who can make use of it. This business of information-gathering can be a cop-out. W e get it, and what do we do with it? Eulau: I've been under the impression you get swamped with stuff which you cannot digest. Mann: That's the point. It would have to be institutionalized in such a way that it would be useful to the users. Reedy: W h a t would happen to that organization when it produced figures demonstrating that milk is cancer-producing, that oil should be seized and held as a national asset by the federal government, that coal should be taken over by the federal government, that wheat has become a highly inefficient food, and that we should get rid of cattle altogether because they are eating too many smaller grains that should go to humans? W h a t would happen to their appropriations after two or three reports like that? Mann: I see the organization as telling us what's going on in the government, not what society's problems are. Eulau: I didn't quite understand when you talked earlier about the

Effectiveness of Governmental Operations

223

difficulty of getting information out of the agencies. Were you speaking as a member of Congress or as a chairman of a subcommittee? Do chairmen of subcommittees have the same difficulties? Mann: Oh, yes. Eulau: Is that true of the most substantive subcommittees, say, the commodities subcommittees of the Agriculture Committee or the education subcommittee of the Education and Labor Committee? Can you not get a response from the Office of Education within twenty-four hours? Mann: It varies with each subcommittee. But I will volunteer this: as a member of the Judiciary Committee, my subcommittee has no identifiable oversight responsibility. Nobody has legislative oversight responsibility with reference to the FBI. Therefore, we didn't know whom to ask what questions to get information for our use. That's part of the problem. Eulau: It's probably the same in some appropriations subcommittees. Mann: My biggest hangup is fiscal information. The average congressman has no access to reports on the current monetary status of a program. How much is in the pipeline? What's it doing? And information of that nature. Yet if he had it, the average congressman couldn't absorb it all. Goodman: What was your answer to the question about whether this is just a deficiency in the average congressman's access or a deficiency in the relevant subcommittee's access? Eulau: We have some very good studies of education and labor, of appropriations, and of agriculture and some defense committees. In fact, the complaint is that the House subcommittee structure has so adjusted itself that its format is determined by the administrative arrangements in the bureaucracy. The complaint seems to be, at least from some people, that there is too close a collaboration between the subcommittee chairman and the bureaucrats, and that the oversight function is not being fulfilled. Mann: I would feel that is true in some cases. Executive-Legislative Consultation Hoxie: My special concern is crisis management. We talk in terms of domestic and foreign policy. Have we done everything we can to get an effective working-together in crisis management? I know of no event in our national history where there was not time for appropriate consultation. There have been many occasions in which there has not been that consultation. The most classic example is the Korean War. I think we were absolutely right to be in it, but so many of the actions, such as the deployment of troops, were taken without any consultation. The War Powers Act says just one thing: in forty-eight hours you make a report. But that's not consultation. Mann: Well, the intelligence investigation has brought that subject up again. Hopefully, consultation will become a part of the guidelines 224

Committee

II

with reference to the resolution of the CIA and other problems. As I recall, the War Powers Act includes language which encourages consultation. Hoxie: Congress isn't presently geared for it. You can't march fifteen committees over there to consult. Mann: No. All of the proposals are very realistic. One or two senior committee chairmen of the House and one or two of the Senate, or three at the most, would meet on this type of issue. Hoxie: The War Powers Act has been on the statute books for three years, but nothing has institutionalized consultation. Reedy: Can you institutionalize a crisis? Hoxie: You can institutionalize your management procedures. Reedy: You can overinstitutionalize your management procedures for a crisis. You are going to do in a crisis what you have done all through our history, handle it as it comes. Chairman: That is not necessarily good, however. Senator Aiken used to say, regarding the Vietnam War, that he didn't have the faintest idea what was going on in Vietnam; that he was not told anything by the White House. Maybe they were considered unknowledgeable, but two leading senators on the Foreign Relations Committee, Aiken and Mansfield, were not being consulted about the war. Reedy: Judge, here is a point that I made when we started. When you are dealing with political forces, you always have a great deal of difficulty determining what is real and what is being done with mirrors. If Lyndon Johnson were to walk into this room right now, he could make one of the most impressive speeches you ever heard, and would probably convince everyone in this room that he had been consulted thoroughly. Johnson would cite you name, chapter, verse. He would have somebody walking behind him with a briefcase pulling out memoranda, proving that on such and such a date he consulted with somebody. This is why I get so terribly skeptical about all of this institutionalization of political forces. Lyndon Johnson was an amazingly persuasive man, but not the only persuasive man in history. Radzinowicz: Winston Churchill was another, and maybe even a greater one. Reedy: Those two deserved each other. Too bad there was never a confrontation between them. You could have sold tickets. Chairman: What I am saying is, he did not persuade Senator Aiken. Senator Aiken wasn't being consulted at all, and in the end, Lyndon Johnson lost touch with the people. Reedy: That's my point. I don't care what procedures you set up, a President is going to consult when he wants to. They will consult, yes, but listen and do exactly as they please. There is one rule you have to remember: Presidents are politicians. Ultimately, the only guarantee you have that a politician is going to listen to somebody is if he has to, and the President doesn't usually have to listen to members of Congress. There are good, prudent reasons why he should, but from a standpoint of his ordering troops somewhere, he doesn't have to. This is one of the beauties of the War Powers Act, which I

Effectiveness of Governmental Operations

225

regard as good. It does have one little knife thrust in there which will cause Presidents to listen. Goodman: Another concern, I take it, is that he should inform Congress so that they can decide what they want to do about the crisis. Wouldn't institutionalization of the consultation process require the President, even if he doesn't want to, to tell Congress? Eulau: Who decides what is a crisis? The President? Obviously, if there is an attack on Honolulu, that's clear. But what is a crisis? Reedy: What is Congress going to do if the President decides there is a crisis and he sends troops? The Congress doesn't command any troops; it commands the sergeant-at-arms and the deputy assistant sergeant-at-arms and an assistant to the deputy assistant. And it has the Capitol police force, which is composed mostly of college students studying medicine or law at Georgetown. What are they going to do? If the President wants to send troops, he will send troops. Hamilton: Might it not have some voluntary effect in terms of ultimate acceptance? Reedy: This is interesting. Lyndon Johnson's case might not have persuaded Mike Mansfield or George Aiken, but to the public, the fact of the consultation actually legitimized enactment. Hamilton: That's what I am getting at. Reedy: That's one thing. You can call these members down, and you can give them a couple of drinks and a magic lantern slide show, and then you go before the public and say, "I have consulted the leaders of Congress." Who is going to listen after that, unless of course the President's position is deteriorating. Mann: I gather from what you said that Gerald Ford probably has an informal arrangement to confer with the chairmen of the Armed Services and Foreign Relations Committees. He can do it if it is politically expedient to do so, and not do so if it is not. Reedy: Some Presidents will have some under-the-table arrangements where they try to get cooperation. There were two or three members of the House and Senate who actually knew about the atomic bomb. They had to put the appropriations through somehow. There was a bit of consultation, but it was a consultation in which the President needed Dick Russell's help. Those appropriations had to be hidden, and you couldn't hide them without a lot of help. When you start to institutionalize political forces, you are getting into a dangerous field, because what you are quite likely to do is put the Good Housekeeping seal of approval on what is actually a shell game. Hoxie: The man who was the principal architect, when it came to national security policy, Alexander Hamilton, recognized the necessity in certain instances for limits on consultation. He said we need an intelligence fund, or secret service, and he was wrestling with what to do with authorization and oversight functions of the Congress. What he finally said was, " W e can do it with a committee of not more than three from the lower House and committee of not more than three from the upper House. As long as we limit it to those, then we can have our intelligence fund."

226

Committee

II

Reedy: I have seen Dick Russell look through a Defense Department justification involving billions of dollars and all of a sudden stop, look up, and the man who had brought him that justification would start squirming. Russell knew the figures so well that all he had to do was to look at the totals, and he recognized immediately when there was something wrong. Mann: The complexity and the size of the government and its operations have outpaced our staffing. You are arguing for seniority too, expertise in handling. Reedy: I don't argue seniority for that reason. Mann: However, it is the proliferation of programs and spending that— Reedy: The Defense Department appropriations were up to $ 6 0 , $70, $80 billion, but I don't think a lot of irregularities got through. Senator Russell became a little too cozy with the Defense Department, which is what happens to many committee chairmen. Nevertheless, they weren't hiding anything from him. T h e y didn't dare. Public Understanding of Congress Eulau: It seems that the public understanding of Congress, in contrast to the presidency, is very deficient. That's why you hear about the failure of Congress, quite apart from the kind of technical criticisms that can be made. T h e Congress does not have its own public relations as an institution. Mann: I received a report that the Rules Committee is working on televising the proceedings of Congress, the day-to-day sessions. Apparently, there is to be an early solution to that problem. They have already developed rules which they think are acceptable to the members, and will be presenting them soon. Eulau: There will be more public reports of committee operations? Mann: Any time T V is interested in committee proceedings now, they inquire, and very few if any committees have refused television coverage of committee meetings. I have repeated this business about how the Congress loses in the public relations battle so much that I may have even said it here in the last three days. Nobody speaks for the Congress. It is a babble of voices and the press will pick up the most extreme one. Everything good that comes out of the government has the President's name on it, and if it's popular legislation, the headlines report that the President signs it into law. The identification of Congress, as I have said earlier, is as a monolithic and conspiratorial institution in the eyes of the people because the President is the source of all good things and is so identified. Like lawyers, we have lost the PR battle and we have lost it badly, and I don't know what the solution is. T h e problem of the media is so complex. The ability of the President to speak with that single voice causes the White House press corps to follow him around. T h e American public's impulse to treat the President as royalty is so strong that

Effectiveness of Governmental Operations

227

I don't know how the Congress is going to get equal treatment and public understanding. Hamilton: Didn't you put your finger on it earlier? You said earlier that Congress has no program. What would a PR person say? Eulau: But that itself has to be explained to the public. Reedy: They can't handle a program, really. I don't think a PR man can help you. Hamilton: I am using it in the broader sense. What would they say? " W e are grappling with issues and we are going to move incrementally?" Eulau: The Congress does work every day. Hearings are held, newsworthy events. Chairman: It investigates. Hamilton: Do those get in the press though? Reedy: Congress as an institution can never win. However, the individual congressman can win, and that's what saves the institution. I go back to Clement Zablocki; they may think the Congress is a bunch of bums, but by God, he is the greatest statesman since John Sobiewski. That's what really keeps Congress alive. They all dislike Congress, but their congressman is a hero. Hamilton: That might be the best you can get. Reedy: It is. Individual congressmen, by the way, sometimes get tremendous publicity. When Senator Borah died, he absolutely dominated the press for four or five days, and to my surprise I couldn't discover anything he had ever done. Mann: O n e elementary but very widespread misunderstanding about the Congress is the complexity of it. Whenever the press carries a story about what one subcommittee is doing, I get letters, " W h y don't you all quit that and spend some time working on energy?" W e have 200 subcommittees working on all these things at one time, and the public thought we spent a whole year working on nothing but impeachment. You couldn't convince them we were doing anything else, and yet reports published during that very period indicated that the Congress was meeting more hours and producing more legislation than any Congress in decades. Reedy: You are the victim of a newspaper style sheet, and there you have another problem. Newspapers have developed a method of writing which is probably about the best method of presenting news. But there are some instances where it is totally inadequate, and no one has yet figured out a substitute. Congress is one of those areas. The difficulty is that this whole method of presentation depends on an event or a statement. Newspapermen, unfortunately, in order to be what they call objective, must always have a source. It is the necessity for a source that kills you congressmen. I have been connected with journalism all my life, and I do not believe that for most purposes there is a better style for handling news, but it is inadequate when it comes to reporting on legislative bodies. Hoxie: Points of view depend, in part, upon position. I am reminded of John Quincy Adams, who is unique among Presidents,

228

Committee

II

having served later in the lower House. If one looks at the views of John Q u i n c y Adams in the executive branch, and then later in the Iegisaltive branch, we can get to the problem. Arthur Schlesinger, noting A d a m s ' views when he was in the Congress, talked about the Adams who was concerned that the powers of the President in national security policy were completely unchecked. T h e John Quincy Adams of an earlier era in his personal writings in 1 8 1 7 as Secretary of State took a different view. He was asking why those constitutional fathers ever shared with the United States Senate the treaty-making power and why all of national security policy formulation was not lodged in the chief executive. Years later then, in the House, his views were 1 8 0 degrees different. If we can just—coming back to separation of powers—get a better understanding of what the founding fathers were about, we can visualize Congress and the President working together more effectively. Rather than a strict compartmentalization, Madison conceived of separation of powers as a mandate for cooperation. T r u m a n was a great man in many ways, but he did not work effectively with the Congress on many matters. He did not seek their views. Eisenhower, by contrast, had the Madisonian view of the importance of consultation. Again and again he went to the Congress saying, " I want your views on Taiwan, Lebanon," and what were they saying in response? They were saying in essence, " Y o u don't need our views. You know that you have our support." Would they have taken that view if their opinion had not been sought? W h a t did Fulbright say at the very end of the Eisenhower period? He said, in essence, " A l l we have done is pick and intrude and not stuck to matters of policy." W e are dealing in human relationships here. T h e founding fathers suggested a system to make it work—separation of powers—which envisioned consultation and cooperation. Feerick: Frankly, I leave with a great deal of confidence that we do have the best Constitution that we can put together. I am convinced from some of these discussions that no case for any major change of that instrument has developed.

Effectiveness of Governmental Operations

229

COMMITTEE III

SHAPING OF PUBLIC POLICY Chairman: Charles Gilbert will summarize his paper.* Gilbert: It is a large topic. T h i s paper is primarily about the public aspects of the shaping of policy, the peculiarly democratic dimensions of the American Constitution. It may be a harder topic to talk about productively and pointedly than is true in some other committees, harder because of being less subject to statutory attack or attack through constitutional revision. Three points about this paper: one is that w h e n w e consider the shaping of policy today, we consider it in a radically different context f r o m that of even a decade or fifteen years ago. W h a t I call the density and complexity of policy h a v e accrued to a degree that they pose problems for popular engagement in the shaping of policy. T h e y h a v e to be taken seriously when w e think about h o w accountability or responsibility of policy to the public can be made more or less real. So when one thinks about w h a t to do about popular engagement in the shaping of policy, one has to think about the substance of policy, and how we can contrive policies so that they are sensitive to, and respond to, popular preferences. Secondly, as part of our constitutional and general democratic doctrine in the shaping of policy in its popular dimensions, we must also think about political processes. A great deal of policy is shaped administratively in the executive branch of the government. A n y attempt to distinguish sharply between political processes out in the country, or even in Congress, and the bureaucratic aspects of policy shaping is unrealistic. T h i r d l y , I deliberately did not deal with the role of courts in the shaping of policy. If one were going to i d e n t i f y a present trend, it is the increased role of courts in the shaping of policy. In much of our civil rights and environmental policy the courts are in the position of T h e paper is printed in Volume I.

administrative agencies through the fashioning of remedies, through decrees that are not simply terminal, but are prospective and continuing in nature, and take in the interests of a large number of parties. The courts are now subject to broad legislative delegation. Our regulatory policy has been expanding rapidly. Chairman: We thought a good kickoff point would be the party system, particularly as it relates to presidential primaries; the strengths and weaknesses of the present party system; the primary system as it operates; the best one that could be devised to nominate presidential candidates; how campaign financing affects the party system; the changing role of the media, particularly T V ; the use of presidential polls; the problem of nominating a Vice President; the question of disclosure; candidates' backgrounds, financial interests, and all of this. A second topic we should discuss is the question of separation of powers, focused particularly on the legislative process between the legislative and executive: what happens when you have split party control between the Congress and the White House; the range of discretion given the executive by statute, referring here to the legislative veto upon some line-item controls in the budget; the War Powers Act; Angola, and so forth; problems created when differing organizational structures do not mesh; congressional oversight; all of which focus on separation of powers. The third would be to look at the federal system: the changing relationships of federal, state and local governments; financing relationships; revenue sharing; special needs of the large metropolitan areas; complications created by urbanization and whatever implications they may have on state governments; possible devolution of authority within the present financial relationship of state and local government; and accountability. The fourth topic might be to look at ways we can improve the legislative process. W e could deal with the internal organization of the Congress—committee structure, the congressional budget process, the question of whether oversight can or should be separated from legislative committee responsibilities, the information and analytical staff capabilities available to the Congress. There is a proposal to establish an institute for the Congress that would examine the role of the party caucus, the congressional reform program sponsored by Dick Boiling and others. All of this would be focused on improving the legislative process. Finally, a fifth topic might be citizen participation and confidence in government; the whole question of responsiveness and alienation which we hear so much about today; the role of interest groups; avoiding conflicts of interest; codes of ethics; the role of the media; voter registration; voter participation; political activity by civil servants as evidenced by proposed repeal of the Hatch Act; attracting more able young people into public service; and the role that educational institutions and professional organizations play in this respect.

232

Committee

III

Presidential Primaries Let us start with the party system and the role of presidential primaries. T h e party system is particularly appropriate with the primaries under way. Ranney: Chuck Gilbert merges considerations of policy process and policy content. He faces directly the question: do policy processes make a difference? If we can only improve our processes, are we going to get better policies, or do we get better policies without regard to the processes we have? M y generation of political scientists admired the British political system, processes, and parties, saying that we would do better to adopt policies and institutions stressing party lines like the British. T h e paper strongly emphasizes the point that there are important values in the processes themselves, apart from whether they are going to produce solutions to environmental questions, the energy crisis, or race relations. Does it really make much difference what kind of parties we have, whether we have separation of powers, federalism, and whether we have direct primaries, in terms of what are the likely outputs? Our party system and the nature of political parties are quite unlike those of any Western country. In the strict sense, the United States is the only country that has ever had direct primaries for nominating candidates for election. O f all of the party reforms adopted in this country—and there have been many since the early 1820s, far more than in any other democratic country—the most radical change was the adoption of the direct primary in the early 1900s. It is simply impossible to understand the peculiarities of the operation of American political parties without paying a great deal of attention to the direct primary system. It was advocated in the 1 8 9 0 s and the early 1 9 0 0 s by leaders of the Progressive movement, most notably Senator Robert La Follette, Sr., of Wisconsin. One objective was to produce better candidates. T h e notion was that under the old convention caucus system, the party bosses would pick party hacks as candidates. Party hacks were manning most of the offices of government; they were people of mediocre ability, with ties to the bosses. It was believed that if persons could be nominated for public office without being beholden to the bosses, then a better quality of public officeholders would result. There is no objective, scientific way of determining if one officeholder is better or worse than another. But as regards the presidential selection process, it would be interesting to compare the Presidents selected after the adoption of presidential primaries, which really first became significant in the 1 9 1 2 election, and Presidents nominated before. The other objective of the direct primary, the presidential primary in particular, might almost be called a good thing in itself. Speaking before the 1 9 0 3 session of the Wisconsin legislature, which adopted

Shaping of Public Policy

233

the first statewide primary, Bob La Follette said it is fundamentally undemocratic for a third body to interpose itself between the sovereign people and the selection of nominees for office. If you do, you are thereby devolving the right of the people to select their public officials. So, therefore, on the principle that democracy, as the Progressives defined it, is in itself a good thing without regard to whether it produces better nominees, better policies, or better anything else, it ought to be adopted. For many years, presidential primaries were a significant element, but only one of a number of elements in the process by which presidential nominees were selected. Relatively few candidates rode to the nominations because of their sweeping of the primaries against the bosses. Indeed, a number of nominees, Adlai Stevenson and Hubert Humphrey, for example, did not enter any primaries. In both instances, they were nominated over candidates—Estes Kefauver and Eugene McCarthy—who had done well in the primaries. That situation has now changed, probably permanently. One statistic deserves mention. In 1968 and before, never more than 40 percent of the delegates at either party's nominating convention were selected or bound by direct primaries. In 1976 the figure is 76 percent. There are a good many people who eight years ago didn't want a national presidential primary because they favored a situation where it is possible to compromise, to negotiate, to deal, to get a candidate who will unite the party, rather than a one-shot referendum where there are no second choices and no possibility to negotiate compromise. Many of those people are now saying that the 1976 situation is worse, and either go back to 1968 or go all the way to some kind of democratic national presidential primary. This is not to predict we are not going to have a national presidential primary. We are much nearer to it than we have been at any time since the primaries were first instituted. It is a possibility worthy of some thought. Political scientists in the past ten years or so have studied the operation of direct primaries, less at the presidential level than at the state and local levels where the great bulk of the primaries are operating. They have reported several significant empirical findings. One invariable finding is that voter turnout in primary elections is much smaller than the turnout in general elections. A good rule-ofthumb for turnout in presidential primaries is that half or less of the people who will vote for a particular office in the November election, Democrats versus Republicans, will vote in the Republican or Democratic primary. We have a different electorate operating in primary elections from that in general elections. What are those electorates like? Are they representative samples of the general electorate? Are the 30 percent that turn out in a presidential primary a representative sample of the 70 or 75 percent who will vote in November? No, they are not. The persons who vote in primary elections differ from the persons who vote in general elections: they are better edu-

234

Committee

III

cated, have higher incomes, are generally more interested in politics, and generally feel more strongly on issues. They are, if you like, somewhat more ideological than are the rank and file who vote in the general election. Consequently, presidential nominating politics is substantially different from presidential election politics. The strategy you must follow, the kind of support you must win, and the kinds of things you must do to win support, particularly now with the primaries playing such a critically important role, are substantially different from the strategy and politics needed to defeat the opposition in the general election. For good or for ill, we have far more elections in the United States than occur in other democratic societies. It places upon the voters and the parties a burden of making nominations and electioneering far beyond what the political parties in any other democratic country carry. That being the case, whoever is elected President of the United States is a very tired man. He will have to campaign continuously for months or, perhaps, even for years. Primary elections exacerbate the problem of money in politics. Increasingly, primary elections have to be fought, like general elections, with large organizations. They require considerable exposure to the media, campaign consultants, polling, all of the elaborate paraphernalia of the new politics. To a considerable degree, the direct primary has succeeded as an institution in its avowed intention, weakening the role of the party leaders in the selection of nominees. In a number of states and localities, party leaders endorse candidates in advance, and, more often than not, those candidates will win in the primaries. However, in a considerable number of instances, they are defeated. As V. O . Key' and others have said, the direct primary system encourages an individual entrepreneurial kind of politics in which you get your own organization, your own financing, and go for yourself. It's how you appeal to that 25 or 30 percent of the electorate that determines whether you get the nomination, and not a relatively few party leaders. That, in turn, certainly weakens the party. It's almost undeniable that the political parties are playing an even smaller role now in the selection of presidential nominees than they have done for a long time. The contests going on now, in both the Democratic and Republican primaries, are entrepreneurial conflicts among a number of different candidates, with the parties providing neutral arenas for the conflict to take place. One of the things that we look forward to is a more tightly organized national political party, more capable of developing and implementing policy, and more capable of bridging the gap between the executive and legislative branches. If anything is clear, it is that the extension of the primary system runs directly counter to that. Participatory parties, open to anybody, or more tightly organized, more programmatic, more disciplined parties; we may have one or the other, but not both at once. The fundamentally anti-party thrust,

Shaping of Public Policy

235

strong and explicit in Bob La Follette's mind when the direct primary was instituted, continues to operate. Chairman: Would regional primaries meet some of the concerns you outline? Ranney: They would not. One thing could be said for regional primaries as against a one-shot, one-day primary: the regional primaries at least would give some time for individual candidates to test themselves and for more coalitions to be formed. But in terms of making the process more entrepreneurial and nonparty, there's not much difference between the regional and the one-shot national primary. Party Discipline Kirkpatrick: I agree with most of what has been said. There is another aspect, however. What Austin Ranney has been describing is a conflict between two desires. One is to democratize the process to engage wider participation in the choice of candidates; the other is the determination of party business or the formation of a platform in the state or national convention. Because we believe in democracy and participation, the history of the party reform represents a pressure in that direction. Professor Ranney's recent book, Curing the Mischiefs of Faction,2 shows that. On the other hand, there has been a desire on the part of many people to have somewhat more disciplined parties that could more easily adopt a position, some element of choice between parties representing different things, and a better way of disciplining the members. We have run into a conflict between these two desires. In this country we don't know what we mean by being a member of a party. We don't have, as most other countries do, dues paying by which membership is easily definable. As we have pressed for democratic reforms, we have weakened the party. The direct presidential primary is a very clear case. For the first time the presidential primary has played an important role in the selection of delegates. Nonetheless, I don't see any retreat from the number of primaries that, in fact, are going to weaken the national parties in a significant sense. I am not an ardent advocate of a disciplined, responsible party system. Within a democratic society it is probably difficult to achieve. There is even doubt that it actually exists in Britain. Parties are an essential instrumentality in the operation of democratic government; hence, the most serious problem we face today is the weakening of the parties. An example of this is the increase in the number of people who describe themselves as independents. The campaign finance law3 also tends to weaken the parties. In other words, we are moving in a direction in which a large number of electoral reforms are weakening the parties. Perhaps the Democratic Party has moved more rapidly in this direction, but the Republicans are right behind. We are not going to substantially decrease the number of primaries, nor do I see an effective way of moving toward a national primary. If you move to a national primary, you can't avoid

236

Committee

III

having two of them. If you have multiple candidacies, to avoid the nomination of a minority candidate, you have to have a runoff. S o b e t w e e n the primary, the runoff, and the general election you have three national elections in any given presidential year. Chairman: W h a t part do you think the growing use o f T V has played in the weakening of the party structure? Kirkpatrick: Some. I find the J i m m y C a r t e r p h e n o m e n o n puzzling. T h e r e , I don't think T V plays such a role, but the media generally play a very significant role. A year ago, I would never have predicted the current situation in the D e m o c r a t i c Party with respect to the presidential nomination. Sundquist: Regarding the effects of the primary system on the parties, does the present primary s y s t e m get us better Presidents, which is one objective o f the presidential selection process? T o fill a job, you usually design a selection system where the qualifications required can be examined in some rational and comprehensive way. O u r primary system, as it has evolved, is so haphazard, so r a n d o m , it no longer serves that purpose. C o m p a r e it with what is going on in G r e a t Britain. T h e y select their n e x t prime minister in the person o f a party leader. T h e electorate in the House of C o m m o n s is 3 1 9 people. T h a t ' s the ultimate range o f recruitment as well, a severe limitation perhaps. In any case, the man selected will be chosen by his peers, who all have k n o w n him intimately, many for twenty or thirty years, and have seen him in all kinds of situations. T h e y don't always select the best man either, I suppose. But that kind of screening process does weed out persons w h o lack the character or competence to be prime minister. It may screen out the geniuses as well, of course, and it may be that you are more likely to have mediocrity. But our presidential selection process, as a whole, is fraught with extreme risks. T h e primary process, obviously, puts a great premium on popular appeal, on the kind of impact a candidate makes on television. T h a t is an important factor in being President, but it certainly isn't the only one. It requires great administrative ability to be President; you have to k n o w h o w to run a large organization. T h e r e is nothing in our primary process that assures that the candidate will have that ability. T h e primary system gives a great advantage to a man w h o has a lot of time. T h i s is a new phenomenon. J i m m y C a r t e r could not have gotten w h e r e he is today if he were still governor of G e o r g i a ; he had to be an e x - g o v e r n o r to be able to spend two years doing nothing else but organizing his campaign. It's an incredible ordeal. A sane and rational m a n like W a l t e r M o n d a l e might have been the selection o f the D e m o c r a t i c m e m b e r s o f the S e n a t e as one of the best qualified for this job. B u t he looked at w h a t he would have to go through to b e c o m e President, and said, " N o m a n ' s life is w o r t h that kind of an o r d e a l . " S o the primary s y s t e m screens out everybody but the person w h o m W o o d r o w W i l s o n described m a n y years ago as a " w i s e and prudent athlete." I liked the s y s t e m we had prior to 1 9 6 8 , a balance b e t w e e n the pri-

Shaping o f Public Policy

237

mary system and the smoke-filled room. A man's popular appeal was tested in three or four places. You would find out whether he could communicate, make a good speech, organize a campaign, and how he stood on the issues. At the same time, you would have the screening process of the delegates who did not come out of the primary. To a large extent they might have been party bosses, but there was a possibility at least of their getting together and screening out an unqualified man. A national primary would remove what remaining screening there may be by the few delegations nominated by politicians. That would base the nomination entirely on the impressions made on the public in fleeting moments over television. It would put a heavy premium on name recognition, on ability to raise money. The other extreme, forbidding primaries, seems beyond the range of possibility. It would be inconsistent with the whole trend towards participatory democracy that most of us believe in and the country has embraced ever since the Progressive era. There is no practical way, either, that a party or even Congress could limit the number of primaries. The remedy that has the most promise is the one Austin Ranney discussed a while ago. You can rationalize the process to a degree, and avoid the difficulties of a national primary by a system of staged regional primaries. A bill now in Congress suggests that the regions draw lots to choose dates. New Hampshire and New England wouldn't always be first. You would have six or eight regional primaries at intervals of about two weeks, maybe fewer. That wouldn't screen out the candidate who didn't have a lot of money. He could go into a regional primary. While he couldn't afford to compete nationally, he could campaign locally. The party would, in effect, say that any state can have a primary. But if you have a primary, it must be on the same date as the other states in your region. Kirkpatrick: The process of selection in relation to the ability to do the job isn't solved by the regional primary system. I am thinking of the increasing number of favorite-son candidates in the primaries. If you add to that the sizable number of uncommitted delegates in the primary and caucus convention states, there are enough uncommitted and favorite-son delegates so that any candidate who ignores them does so at his peril. We are creating a situation in which there are no party leaders who can deliver anybody. You certainly will see two kinds of campaigns going on: the campaign for the primary delegates, and the campaign for the uncommitted or those committed to a candidate who is not viable. Yet how does the candidate campaign for those? There is no party leadership he can talk to. This is not a screening process that will consider the ability of the candidate to do the job. It may lead to a situation where the most competent cannot be nominated. Sundquist: Add to that the possibility which Dave Broder4 has been talking about, that eight or twelve years from now the party organiza-

238

Committee III

tion might be so weak that we will have independent candidates running for President, and the ballot might look like the nonpartisan city election for mayor of Los Angeles. Chairman: Does that mean that you might have a multiple-party system in the United States? Sundquist: Broder is not talking so much about multiple parties as about individuals running without benefit of party as George Wallace did in 1968. He had something called the American Independent Party, but it was really not an organized party; it was an independent campaign. La Follette ran in 1924 without a party, so there is a tradition. Can Parties be Strengthened? Schlossberg: Given the present fragmented situation and that 76 percent of the delegates are chosen from a minority electorate, can a party through its platform develop an ideology which will strengthen it with the people and with its own members? Ranney: I don't know. The presidential party is a sometime thing, every four years rising out of dormancy. It's tied so closely to the presidential candidate and largely disappears afterwards. Whether the presidential candidate is the incumbent, the challenger, or just a candidate, he dominates the party platform. W e ought not to kid ourselves that a regional primary would strengthen the parties as such. It's just a less bad way of decomposing the parties than the national primary system. In some states the party organizations, either formally or informally, hold pre-primary conventions. They designate candidates, and those candidates usually win the primaries. There could be a national party organization, perhaps an enlarged national committee of the sort the Democrats now have. Were there such a visible national party organization, it might meet in advance of the national or regional primaries. Schlossberg: Would they resign if they were repudiated? Ranney: No. Schlossberg: They would be on the outside of that candidate's campaign, wouldn't they? Ranney: Yes, they would. So the chances are that even that would not be terribly effective. Schlossberg: Suppose a candidate runs entirely on style. He is appealing and people like him. That's no qualification, as you say, to run a government. W h a t kind of program does he have? How will he fill the executive posts? The agencies? Is there not a responsibility on the part of the party leadership, perhaps, to tie the stylistic star down to a program so that the voter has a chance to make an intelligent choice? Sundquist: The party is the electorate now. The party organization has no authority except what the delegates give it. Ruth: Has there been research on why the party system has declined? W h y have people deserted the parties? They join a party

Shaping of Public Policy

239

supposedly because it does something for them, or they get some satisfaction out of it. If the people don't want to belong to the parties any more, so be it. To go back to the first question of whether a national primary makes a difference, are we going to get a better candidate one way or another? You might just research the way people want their politicians elected. They must have deserted the parties for some fundamental reason. Maybe it's the complexity of the issues. Gilbert: That's three questions: about popular attitudes towards parties, about "alignments," and about organization. There is a lot more independent voting, and a lot weaker party identification and affiliation, and it may or may not be related to the reasons for the gradual atrophy of the party organization. Ruth: I was merely asking why people now answer " n o " when asked if they belong to a political party. Gilbert: There's a lot of disagreement about why that is. Kirkpatrick: The lack of party identification, as it is expressed, doesn't mean what it sometimes says. Data on party identification indicate that sometimes the independents are stronger party identifiers than the party identifiers. Ranney: Research by the Center for Political Studies at the University of Michigan shows that people who say, "I'm an independent but lean to the Republicans," or "I lean to the Democrats" are much more like strong Democrats or strong Republicans than like weak Democrats or weak Republicans. They, for example, have a higher voting turnout, are more likely to vote for the presidential candidate of the party that they lean toward, are more likely to hold similar positions on public policy, and are more likely even to vote a straight ticket. The independent independents are independent almost entirely, not because they are neutral between the parties, but because they are apathetic about politics in general. As to the change in party identification that has come about, the independent independent figure has increased about three percentage points since 1964. The great change has come in the sharp drop in the number of people who call themselves strong Democrats, to an almost exactly corresponding rise in the number of people who call themselves independent Democrats. In fact, those independent Democrats are more likely to vote Democratic than are the weak Democrats, more likely to vote the issues, and more likely to vote the primaries. It's important to remember that when you are talking about American politics, you must distinguish between presidential politics and almost all other politics. Unfortunately, we have spent most of our time studying presidential politics. If you look at, say, congressional politics, you discover that party identification, far from being weak, is very strong, indeed. As a matter of fact, over the last ten off-year congressional elections, you can take the proportion of Democratic party identifiers of all three grades in the research of the Center for Political Studies, and

240

Committee

III

come within three points of the total vote for Democratic members of the House of Representatives. And so if you chart the rise and fall of Democratic party identification, and the rise and fall of the Democratic total vote of the House of Representatives, it stays right there. The presidential vote fluctuates, way u p with Lyndon Johnson, way, way down with George McGovern, hovering around the middle with Hubert H u m p h r e y or Jack Kennedy. Presidential politics is an entirely different kind of thing. W i t h apologies to Congressman Anderson, who is highly visible to his constituents and an exceptional congressman, our studies indicate that in the typical congressional constituency less than a quarter of the voters are able to identify their congressman by name, even though most of them vote. It's a very different kind of situation with presidential politics. Party identification is alive and well as far as congressional voting is concerned. Anderson: Threaded through our discussion has been the notion that political parties are valuable as aggregating, as consensus-forming institutions, and that we ought to preserve them. Yet there is a conflict between strong parties and the idea of popular sovereignty as it affects the nominating process. Strong parties require strong leaders, and some people would even call them "bosses." The strongest party organization in my state of Illinois is known to have what some people would refer to as dictatorial identity. I want to challenge Professor Ranney's comment that people who vote in primaries are ideological and feel more strongly on the issues. The question has already been raised as to what effect the electronic media have had on the electoral process. I wonder whether the electronic media, if they play this overwhelming role in the nominating process, haven't changed party control a bit. In this most recent primary in my county we had a rather astonishing turnout. As I recall, in the 1974 general election only about 38 percent of the people, nationwide, voted in the congressional elections. W e had a 48 percent turnout March 16. I would opt for the regional primary, as opposed to either a single national primary or the crazy-quilt pattern of thirty individual state primaries, as we have today. Campaign Financing I say that because of the impact that these primaries are having on campaign financing, and the fact that it's exacerbating the money problem, even with matching payments available to presidential candidates. T h e inordinate cost of this campaigning has not been solved. I have another somewhat personal reason for deploring the extent to which presidential primaries this year are absorbing so much money. Last week we lost the bill to reconstitute the Federal Election Commission. There was an amendment to extend the matching

Shaping of Public Policy

241

principle to congressional and Senate races, the same proposition I had co-sponsored in a previous congress. It went down two to one because one of the members opposing it equated it with primaries, when we were talking about matching payments in connection with the general election. Nevertheless, if you have a candidate who suspends rather than cuts off his campaign to hold onto the option of picking up a little matching money to pay his debts, that whole concept has been discredited. I doubt whether it's going to get much farther in the next Congress, and we are right back at the old problem, how do we keep the big money out of presidential, congressional and senatorial campaigns? You have to have matching payments as an incentive to producing the small contributions we need. One of the provisions of the Senate bill, which may survive in conference, is the provision that would establish a twenty-man national commission to investigate the nominating process as it affects candidates for President. Chairman: Isn't there also a provision which says that if you don't get 10 percent of the votes in two successive primaries— Anderson: That was the Taft amendment, which was adopted. After two primaries, if you didn't get 10 percent of the vote, unless you have elected to take a pass on one of the primaries, you would be disqualified until you came back and proved your merit by getting the required percentage. You need two succeeding primaries, something to that effect. Clusen: You could screen this out by not meeting consecutive primaries, couldn't you? Anderson: Yes, but again, the financing question is just one more important reason why a regional primary would make some sense. It would have to because of the overlap with the media, particularly in more populous areas of the country. It would be easier for a candidate to finance one campaign on a certain date in a region than it would be to mount five or six campaigns on succeeding Tuesdays in the area. Donovan: The press is just one of the forces at work in the body politic. In spite of the large numbers of people who say they are bored with politics, or bored so far this year with campaigns, in a country of this size, politics is a popular spectator sport. The complexity of the primary system has some resemblance to football playoffs. It corresponds to some interest or attitude in the American public. It would be difficult to simplify it, even if you had national and regional primaries or a runoff. You might still get extra-legal or natural popular preliminaries springing up. W e have had fourteen or fifteen declared Democratic candidates this year, and at least one important non-declared candidate. W e see a trend toward running for the sake of running. With the publicity and exposure that comes from it, and with the possibility of some federal financing, it's quite an attractive thing for a politician to do. I don't quite see how we could reverse that, even if the federal financing were

242

Committee

III

r e m o v e d . T h e publicity incentives a r e still so p o w e r f u l , with the aid of T V , that this proliferation of candidates c o r r e s p o n d s to the highly competitive tendency in democratic society. So I suspect we have arrived at a s y s t e m that, like it or not, corresp o n d s to underlying traits in the public psychology, in the way we o p e r a t e and communicate with each other. It d o e s n ' t necessarily m a k e it g o o d , but it has more of an organic reality than we are g r a n t i n g it. Chairman: W h a t is the role of the media as they affect the political parties, particularly the electronic media? It is b r o a d e r , p e r h a p s , than the others. Donovan: I would like to be able to drive the term " t h e m e d i a " out of existence. It implies a monolithic institution, which d o e s n ' t exist. T h e r e is no question but that television with its amplification possibilities does p r o f o u n d l y affect the political process. T h e qualities t h a t come over well on television, which a r e n ' t necessarily i m p o r t a n t to higher office, have acquired a t r e m e n d o u s influence in the process. Print is much less distorting, b u t not totally w i t h o u t some distortions. W e have something like 1,800 daily n e w s p a p e r s , 1,000 television stations, 8,000 radio stations and 10,000 magazines. It's a diverse set of voices. Jimmy Carter, for instance, d o e s n ' t catch fire solely because of a Time magazine cover story. It's more intricate t h a n t h a t ; a good m a n y other things are at work. I lean toward a s o m e w h a t more m o d e r n view of the influence of the press in all its f o r m s if it is acting against any popular grain. If it comes on top of something that's already r u n n i n g in society or is a b o u t ready to be precipitated, then it can be very i m p o r t a n t . Neither the press nor any part of it can create a candidacy out of n o t h i n g or, indeed, can create issues out of nothing. T h e y have to be there already. Party Organization Benson: H o w does one account for the present a n t i - p a r t y attitude? Is there a n y basis for it? Is it entirely irrational for various segments of the American population to have tried to c h a n g e the w a y s that political parties f u n c t i o n e d ? W a s there some justification f o r w h a t "Fighting B o b " was doing? W h e n was this golden age of the American parties that you would like to go back to? If you can't identify a period since 1861, d o e s n ' t that suggest that something m u s t be w r o n g with the p a r t y s y s t e m ? T h e proposed changes m a y not be the solutions. I agree, we d o n ' t have essentially strong and responsible parties. T h e questions are: H o w come they are not? W h a t can be done to m a k e them f u n c t i o n as strong and responsible parties? Gilbert: I d o n ' t w a n t to m o v e t o w a r d m u c h stronger parties. But I sure d o n ' t w a n t to move t o w a r d m u c h w e a k e r parties. T h a t ' s w h e r e we are headed pell-mell. W h e n w a s the golden age? W h y t h e current disillusionment with parties? Americans have a l w a y s been disillusioned w i t h parties. T h e political party has not been a p o p u l a r institution in t h e sense that it h a s been well t h o u g h t of at a n y time in our history.

Shaping of Public Policy

243

Benson: T h e r e were strong parties to 1860. Gilbert: There was always a paradox in that. As parties were more or less strongly organized in state a n d local terms, they were decentralized in national terms. T h a t was characteristic of the American party system. W e have seen in this century an atrophy of party organization, partly as a result of Progressive reforms. I would like to go back, h a l f w a y at least. W e had a good balance before 1968. It's probably true that w h e r e we are coming out reflects something f u n d a m e n t a l , b u t I d o n ' t see a n y t h i n g very good about where we are. I am concerned by the dissociation of the President f r o m the rest of the party. In our constitutional a r r a n g e m e n t , that has serious implications for the shaping of policy and for the stability of governments. If we are headed toward something you call a more modern party system, it will involve a more educated electorate with rather clear choices, and two pillars of like-mindedness, Democratic and Republican parties. Given the complexity of the issues, I can't see people being very explicit in their issue identifications with party. They aren't going to expect of presidential or any elections a precise demand-response system. T h e beauty of the old system was that you had a stability of party alignments, and you got out of that a degree of support for a candidate or for a party that was, in the w o r d s of some political scientists, diffuse rather than specific. It simply rested on party identification, and that gave leadership room for maneuvering. There is in a large society no demand-response system that can work with the kind of precision you may expect f r o m a modern party system. I would like to see if we can't reconstitute a modicum of party organization. I would like to see m e m b e r s of Congress rather deeply engaged in presidential nominating. In a sense, the functions of party, always partial and fragmentary, are getting peeled away. T h e communicating function is increasingly lost to the media, especially the electronic media. It is more of a system of monopolistic competition, which means that you get marginal product differentiation, but on the whole a good deal of homogeneity is purveyed. I would like to repair the bridging of the separation of powers function, pretty well atrophied with the presidential primary and the separation of President f r o m party. I can't see any way to do it by going f o r w a r d , so I would retrogress if possible. The regional primary, of which there are any n u m b e r of variations, might be a straight regional thing. O r , it might be within any region, or each state might pursue its o w n regulations about the pledging of delegates. I would like to get away f r o m the pledging of delegates. Benson: I assume that the regional primaries are designed to produce delegates who will, in fact, stand for particular candidates. Otherwise, w h y p u t that show on? Is it just a medicine show to fool people? Is it that we w a n t to give people the sense that they have participated, b u t d o n ' t really want them to participate? T h a t ' s precisely what

244

Committee

III

has turned off the American people since the 1860s. It did become a show. The actual output of public policy is the answer to why antipartyism developed. Gilbert: I doubt that. Anti-partyism was always around. People regarded it as a show then. The more you democratize the nominating process, the tougher you make it for people to have something cogent and continuing and organized to vote for in general elections. However populistic our expectations, we cannot simply democratize it all the way and still have party organizations, party traditions and party alignments that are functional. Anderson: W h y do you assume that an uncommitted delegate is necessarily going to be the archetype of the corrupt individual in the smoke-filled room? Couldn't he be, in contrast, the thoughtful, responsible leader in the community who respects his trust, as you trust your representative in Congress to cast his vote for you on important issues on which you haven't made up your mind yet? Benson: How will the voters know anything about this uncommitted delegate? Anderson: I assume it's going to be a meritocratic contest where people of proven reputation, ability and knowledge participate in the political process by running as uncommitted candidates. Ranney: This anti-party feeling is very pervasive in both our elite and in our masses, and it's fundamentally rooted in a fear and dislike of political conflict in general. You know the notion that if men of good will would only reason things out, we would have an end to factions and strife. The idea of a party system just grew brilliantly and convincingly. It wasn't until the 1820s and the rise of Martin Van Buren that the object of party conflict stopped being to drive the other party out of business, not by putting them all in jail, but by convincing everybody to join the one patriotic unity party. What is it that people don't like about parties? Parties create conflict where otherwise none would exist. It would be better in all elections if we had no party names on the ballot. It's a dislike of conflict. Incidentally, this is also important in why, when the three branches of government are compared as to popularity, the President is always first by a wide margin, even at the depths or the heights of the Nixon era. The Supreme Court is a fairly distant second, and way down at the bottom always is Congress. Why? Conflict, which is the business of Congress, is more visible by far. Every time you read something about Congress, a congressman is criticizing another, or they are taking a vote. There is also conflict in the Supreme Court, but most of it takes place in an esoteric, secretive way. Despite the divided votes and dissents, the Court is perceived as doing something. The President is one man. He is always working and speaking for the best interests of the country. There is an attitude pervading mass politics in America that con-

Shaping of Public Policy

245

flict is an unfortunate aberration caused by shortsightedness, and that if we could get the right institutions or people of good will in there, the whole society would march toward the public welfare. Conflict is, of course, not only inevitable, but is the very essence of democratic society. It's healthful, but that is not the way it is perceived. Pranger: On the one hand, parties cause conflict, and on the other hand, parties defuse conflict. One of the chief criticisms of the two-party system is that it does not differentiate in the way of conflict in society. Contemporary criticism of the two-party system has nothing much to do with nostalgia for a society without conflict. It is exactly the opposite: participatory politics has a much greater tolerance for living with fragmentation and diversity than does the two-party system. You make this distinction between participatory and programmatic. Participatory democracy is apparently an end in itself, and the parties are programmatic. One of the great criticisms of the two-party system is that it is not sufficiently programmatic, and not sufficiently oriented toward contemporary issues. Participatory democracy has an abundance of programs. Criticism of the two-party system, and the reason for such an emphasis in contemporary politics on participation, ought to be addressed. It is not related to nostalgia, nor do its followers have a clear sense of lineage with Robert La Follette's Progressivism. If anything, one of the arguments against participatory politics has been that it is ahistorical. This is a frequent criticism from the more established party people. Sundquist: I want to challenge the premise that the parties are in a severe state of decline. At a recent conference on the subject, it wasn't until the end of the second day that we realized we were talking about decline of parties in two totally different senses. One is the point about identification of people with parties. The other is the state of the party organization. While one can be going up, the other may be going down. As far as the decline of identification goes, there is nothing to be severely alarmed about. What happened is that from the time polls began on the subject in the 1930s until the mid 1960s, these lines changed very little. In answer to the question, "Are you a Democrat, or a Republican, or what?" the Democrats consistently got between 45 and 50 percent, the Republicans got consistently between 30 and 35 percent, and the other 20 to 25 percent called themselves independents. Nothing happened to those lines until the mid 1960s when zoom, both the Republican Party and the Democratic Party went down, and the independents went up. Independents got about five million voters from each of the two major parties. The fact that this happened suddenly says that this was not the result of some long-term secular trend which would concern us. It was a result of something that happened in the mid 1960s, a series of prominent, emotion-rousing, cross-cutting issues. The issues paper

246

Committee

III

refers to them as "issues running orthogonal to the line of cleavage." With a party system organized on a rationale formed in the 1930s around, generally speaking, domestic and economic issues, liberalism and conservatism, we were hit with a Vietnam War, a race issue, and a whole series of social issues which aroused the country. These are things with which that party system was not designed to cope. People who thought Vietnam was the overriding issue of the time found the two parties too wishy-washy. The issue cut them in half. Neither party would take a stand. Nor did they take a very effective stand on any of the other issues in the mid-1960s. The people concerned with segregation ran off with George Wallace; and the young people ran off with Gene McCarthy. W h e n those issues disappear from the scene and the old issues upon which our party system is organized—good old domestic, economic issues—return, people will return to the parties as rapidly as they left. There are signs already that that's happening. The Democratic Party is close to its peak, around 45 or 47 percent. Democrats shouldn't be alarmed. There is latent strength in the Republican Party. But they are temporarily handicapped by the residue of Watergate. As soon as that wears off, and domestic, economic-type issues return to center stage, the Republicans will get back their share too. In terms of party identification, there has not been any severe loss. There hasn't been any anti-party feeling other than a temporary turning away from the parties during the time they were incapable of handling the issues at hand. We expect that; it's a cyclical phenomenon. Party organizations are an entirely different matter. W e have seen a transition from the old-type organization to a new style. The last of the old style of the Democratic side is the Daley machine in Chicago, and one day that will go. I am not familiar with the Republican machines, but I assume they are not what they used to be either. When Mr. Anderson says that strong organizations need strong bosses, I would dispute that. W e are getting a new kind of party organization without a boss. The cement holding the party organization together is not patronage and booty, the basis of the old machine. It's an ideological adherence to the party principles. And where on the Democratic side it has made that transition, we have the strongest party organization ever. I will give you some states: Minnesota, Wisconsin, Michigan, New Hampshire, Vermont, where they just elected a senator. The Democratic Party has never been stronger in those states than it is right now. I suspect that it's true on the Republican side too. They have converted from the old fashioned, out-of-date kind of organization to the new one. The best example is in the South, where they have strong, ideological parties, built on principles, not offering their members rewards other than having people in office believing as they believe.

Shaping of Public Policy

247

Decline of Party System Clusen: I have very mixed emotions about this as we go along. There is a great deal in what we have just said. It depends upon what party we are looking at. In Wisconsin, where I know the parties, both have undergone rejuvenation. You can point to other places where this is distinctly not true. The decline of the party system is partially due to the general malaise that people feel about politics and government. In a sense, parties have done it to themselves. There has been for a long time a lack of identification with party labels on the local level, where it is hard for the people to identify easily with a party's stand or the benefit from belonging to it. It's no longer a Tammany Hall club. It doesn't solve your immediate neighborhood problem, and that's what most people are concerned about, rightly or wrongly. Other things have happened to parties. There is less definition of where a party stands on questions. There is less understanding of party platforms. People watch congressmen break party lines when they vote on the issues. By and large, people think parties as such have no solutions to the nation's major problems. They drift along looking for individuals who do without party labels. Part of it has been the splintering within both parties. In the last presidential election, both parties nominated candidates who were not really in the mainstream of the party. Teune: Do we have an alternative to retrogression, in order to get a better balance between the populistic principle and the hierarchal organizational principle of political parties that was dominant some time ago? Even if party identification improves, will our society and social organizations support a return to some older pattern? I distinguish two different attitudes in our discussion. The first attitude is that we are undergoing some kind of change, and we have to determine what will move us back toward more "normal" forms of politics that seem to have worked better. The second is that we have undergone such substantial changes in the last decade or two that that option of going back is no longer open. I speak of the party as an organization. We want the party to screen candidates who can govern; to structure choices so that a democratic process is meaningful at least at the presidential level; and to mobilize support to control or check the President. Can the parties act as points of popular aggregation on a few simple ideological differences? Is the complexity of groups and individuals in society such that the old orientations of the parties would be sufficient to aggregate people in a stable fashion? I have some doubts whether more ideologically oriented parties really can operate in a political system that is well designed to allocate material resources, but not well designed to cope with substantial ideological issues. The old party organization and the reforms of introducing uncommitted delegates to conventions are predicated on an assumption that

248

Committee III

a large part of the people's orientation is confined to a physical locality where they can get to know other people. I question whether that kind of relationship between place and social organization is strong enough to produce accountable delegates. Byrom: I wonder if there isn't something more fundamental taking place in our society than just the question of what's happening in the field of political science. Some years ago SRI did a monograph called "American Values/' 5 which was based on an analysis of the nature of change that would take place in American society as the affluence of the society changed. As people moved towards self-actualization, they would become much more pluralistic as a society with a great deal of suspicion of institutions. I am thinking, for example, of the difficulties that the various religious denominations are having. Resistance to the church seems to be not to its teachings, but to the tendency on the part of the hierarchy of the church to try to institutionalize social action on behalf of people who are members of that denomination. I find myself very much in this position with regard to party. As I find it easier to make an individualistic decision about various candidates, I find less need for the party system. I wonder, really, if part of what is happening isn't that we have moved to one of the most highly educated societies in terms of average level of education. We have moved towards individualism and pluralism in almost everything. We have developed a high degree of suspicion of any concentration of power which is remote from us. I am wondering if it isn't a much more fundamental change taking place in the very character of our society today, and not necessarily a rejection of something that is political. Chairman: There has been a lot said about confidence in government. What you are suggesting is that maybe this reflects a more critical attitude toward the governing process as a whole. Byrom: Towards institutions generally, and to a tendency towards pluralism. Let's look at the executive branch as an example. We talk about a pluralistic society, but we have a pluralistic executive. There is no commonality of purpose between the agencies of the executive branch of the government today. There is a high degree of pluralism among agencies which by their very nature should have a commonality of purpose. Schlossberg: Wouldn't you call that a lack of coherency and cohesion rather than pluralism? Byrom: No; it is inadequacy in direction. It's a completely different sense of purpose on the part of individuals within the agencies. Sydney Harris 6 has argued that we are incapable of doing anything on the basis of positive constructive motivation. We respond to crises with heroics. Our problem may be that we don't perceive the crises deeply enough. Ruth: I don't hear mention of a high goal in all of this, a reason for

Shaping of Public Policy

249

strengthened party systems or dispersed party systems. T h e greatest danger to democracy is when its people get apathetic. You would want that kind of election system which most discouraged apathy and most encouraged participation, and I would think that would be a multiprimary system. A second goal would be to minimize the effect of personal wealth, or ties to corporate or institutional wealth, for presidential candidates. Raise the money from other sources. W e are still faced with this dilemma. Even with the FEC and the Supreme Court decision, 7 if you get rid of public financing, you are back to only wealthy candidates who are now allowed to spend as much as they can. T h e dilemma with public financing is that too many people get into the race who perhaps aren't very serious about it. As long as we have public financing and multi-primaries, we have to talk about whether that is or is not the best way to encourage participation and reduce apathy, versus the old system where a few wealthy people could put up a candidate. Schlossberg: You are talking about the Federal Campaign Amendments of 1974. T h e parties are given some status and prestige in that. T h e presidential election is entirely publicly financed. The parties may spend an additional sum of money which might be significant to a candidate, $4 or $5 million. That's significant when you are talking about no contributions from interest groups or individuals at all. You shouldn't say that the amendments to the campaign law have really, in all cases, diminished the status and power of the parties. They have given the party, if it raises the money, some power it didn't have before. Byrom: I was very disappointed with the papers in that all of them were attempting to seek the solution to a problem that hadn't been defined. T h e first order of business is to determine what the mission of the United States is going to be in global society fifty years from now, and then attempt to recognize that until that is done, nothing is going to be accomplished of any great value. W e need to seek the measurable objectives that would allow us to accomplish that mission. W e have reached the point where an entity like the state of Pennsylvania has no justification for existing. Philadelphia and Pittsburgh should not be in the same state. The nature of the problems society faces are not susceptible to solution under the organization we have inherited. Organization is merely the means by which you communicate what is necessary to the implementation of your goals. Until we have decided what our goals are, we are wasting our time talking about how to organize. Ruth: Mr. Gilbert did talk about increasing technological complexity, and whether we were going to have a planned economy, and how you pit that against various forms of government. Byrom: I hesitate to use anything as pragmatic as the organization of a corporation, but we found that the last thing we wanted was a highly rigid organization, because the nature of change was taking

250

Committee

III

place so fast that we needed to have a highly flexible kind of system. I don't know how you do that in a political society. Summers: I am not sure what is meant by "strengthening the p a r t y . " A r e we thinking of the development of some organizational structure that will be more tightly knit, make decisions of policy, screen candidates? If the party is neither Congress nor the President, then of whom is it composed and to whom is it responsible? I am not enthralled with the notion of creating a party made up of city bosses. Nor am I anxious to have a party made up of congressmen and senators who then decide what the policy will be. If there is a strong party system, what is its responsibility and how does it get channeled, particularly in a system where there is such a diversity of views and interests? The congressional Democrats or congressional Republicans do not act as a unit. Presidential Role Strengthening a party in the long run, given the nature of our structure, means the strengthening of the presidential role in the operation of the total system. Gilbert: It was commonly thought that the disciplined party system argument was a recipe for presidential aggrandizement, especially with respect to Congress, but we are not talking about a party system in our society that would have that kind of discipline. We are talking about whether there would be sufficient party to serve certain purposes. But what purposes? W h y would we want it? W e would want it, within limits, to render general elections more meaningful and effective. In a society with a strong participatory bent, people will be consistently disillusioned if there isn't a modicum of organization that sorts things out. W e therefore have to pay a price. We have to get enough of an organization to enable that to happen, or people will be disillusioned with the democratic process. One could go some considerable distance toward a disciplined two-party system and still not confront a serious prospect of presidential aggrandizement. The route of congressional protection against this is deep and strong. Ranney: I'm not sure that's an adequate answer. Whatever the nation decides doesn't mean that everybody in the nation is going to agree that those are the goals. We will make that kind of a decision piecemeal. The effective real goals will be what to do, and as regards the parties and their role in the whole thing. Suppose we were to make all our national elections nonpartisan. Suppose w e prohibited the use of party labels f o r elections of congressmen, senators, President. Suppose we elected our President by having a first-round primary. A n y b o d y who was eligible and wanted to, could run. And we then held a runoff between the two highest finishers. T h a t is a system used to select the mayors of a number of communities. The same thing could be done for the selection of individual senators and representatives. Would we want that? I would

Shaping of Public Policy

251

confidently predict that turnout would plummet by about half or more. The fact is that would make politics so confusing, so meaningless, that apathy would greatly rise. One of the ways you lessen apathy and increase participation is not by multiplying the number of decision points and making more complex the role of politics. Rather, it is by giving it some kind of order and structure. What those labels, Republican and Democrat, do better than anything else in our society is to give an order and a meaning to it that would otherwise be absent. W e would be losing an enormously precious value if we were to go the nonpartisan route. Anderson: To answer the concern Professor Summers expressed, maybe in advocating strong political parties, we are bargaining for something we don't really want. If I understood him correctly, it might lead to the destruction of the doctrine of separation of powers. You would end up with a Congress totally submissive to presidential leadership. Since 1966, about 91 percent of congressional incumbents have been reelected. Members of Congress, because they perform a unique ombudsman-like role, have certain ties with their constituencies that can defy even a strong national party trend. My district, which went strongly for Lyndon Johnson over Barry Goldwater in 1964, still reelected me. I am sure that even if a Democrat is elected this November, I will be returned to office. As a result of both Vietnam and Watergate, we have the War Powers Act. 8 Nixon's veto of that act was overridden with a strong assist from the Republican side of the aisle. The Budget Act 9 and other reforms have been enacted because of the presidential impoundments. There is a certain institutional pride in Congress, if you will, that goes beyond mere party loyalty, and will result in a continued reassertion of the congressional role, regardless of what happens in the presidential election and the emergence of a strong national party. Summers: I didn't mean to suggest that it would totally disorganize or control the Congress. But to the extent that the party machinery comes under the control and domination of the President, it increases his relative power. If you are going to get Congress in step with the President through the use of party machinery, and if he is in control of the party, then it does mean that he exercises more relative control over Congress than is now the case. I realize the congressional perception of the relative roles of the President and Congress may be one thing. But from the viewpoint of, for example, Philadelphia, Congress at times seems unable to develop and adopt policies against presidential resistance. Even a relatively weak President seems to exercise a degree of control that makes me uncomfortable. Gilbert: There are some things Congress does well and other areas where, without strong presidential leadership, Congress is not apt to be very effective. The problem is to get a bridge and a pattern of consultation such that it isn't simply Congress coming into accord with

252

Committee III

the President. Rather, it should be through a process of consultation, and the President coming into accord with Congress. T h a t means a presidential process of cultivating sufficient majorities in Congress to get the job done. And that is, in some degree, a party job. McGowan: Regarding presidential primaries, one of the best gauges of how a man functions under pressure, in an emergency, or responds to requests for statements of position, is the experience of facing the electorate. W e learn a lot about people watching them perform in the heat, dirt and dust of an adversary election. W e learn a lot about how they would perform as President, and this has proved to be valuable. If we retain the presidential primaries at all, probably the best procedure would be a regional primary, binding less than 50 percent of the delegates at the convention. Griswold: W e tend to overlook how good our present system is. This is a vast country, the biggest in history that has undertaken to operate in as nearly a democratic manner as it can. It's amazing that it works as well as it does. Just think of the process of trying to select out of 215 million people two names to end up on the ballot. There has been talk about the party in a kind of monolithic sense. Professor Ranney and others referred to the differences between the national, state and local parties. I would emphasize that there isn't one Republican Party in this country; there are thousands of them. Ever since 1928, Massachusetts has voted for a Democrat for President, yet constantly elects Ed Brooke as Senator, Leverett Saltonstall as Senator, Elliot Richardson to two offices, Sargent as Governor. Most voters are Democrats, but they habitually vote for Republicans for many of the important offices in the state. T h e suggestion is that's a great weakness, that we ought to have more consolidation, votes of confidence, and possibly new elections after a failed vote of confidence. I shudder at the thought. O n e of the great things about the party system is that it enables us to get along with strong and deep divisions of opinion, avoiding serious strife in the process, and giving us time to work those things out. Regardless of the Republican nominee next fall, there will be a great number of people in the Republican Party who won't have favored the candidate. Yet my guess is that 95 percent of them will support the chosen candidate and undertake to persuade the independents to do the same. Instead of antagonizing people and forcing polarization, the purpose of our party system is to give a fair opportunity to state one's views and then work together in terms of the common consensus. There are many issues in this country. Any effort to decide what our goals are to be fifty years from now is utterly futile. Our objective is to derive the means and the system which will enable us to face these issues as they come out, to find a way to resolve them peaceably with strong differences of opinion, but without clashes and conflict. O n the whole our system does that pretty well. Most issues in a democracy should not be decided until a real consensus develops.

Shaping of Public Policy

253

Separation of Powers Gilbert: In our society when people talk about formal constitutional revision, they are more likely to talk about the separation of powers and its alleged defects than any other aspect of the Constitution. T h e degree of separation of powers in this society is, among modern Western industrialized societies, more or less unique. People who have wished to revise the party system toward a more majoritarian, disciplined, so-called responsible two-party system, have thought by that means to bridge the gap between separation of powers with party. People who are concerned about the presidency, either that it is dangerously strong, or too weak and unstable, or both, often want to revise the constitutional arrangement for the separation of powers. People who are concerned about congressional leadership or congressional organization, who think it is incoherent, insufficiently disciplined and productive, look to revision of the separation of powers. People who are concerned about the role of administration, the federal bureaucracy, and the shaping of policy, or are concerned about the extent to which the federal bureaucracy is not accountable to anyone, either President or Congress, have also looked to revision of the constitutional separation of powers for help in curing that problem. W e have learned to live with what we have reasonably well, and learning to live with something else radically different would be a task for generations. In a society in which the executive branch has become as prominent as it has in the shaping of policy, the endemic constitutional issue of the relationship between the President and Congress is perhaps the most serious issue in the separation of powers. T h e problem is how to render accountable public administration in a context of basic constitutional ambiguity. W h e n we say Article II puts the President in charge, as a matter not simply of constitutional theory, but of democratic theory, that requires that somehow he have control over the executive branch commensurate with his constitutional responsibility for managing it. T h e n he can reasonably and plausibly be held accountable. T h a t ' s one point of view. T h e other view is that Congress is the more popular branch, the basically democratic branch in our constitutional system, that it has the legislative power to make policy—this is conceptually and practically inseparable from the carrying out of policy—and that Congress to do its job must directly control the administration. There is a direct conflict between these two points of view and there is no easy compromise between them. This is a prime problem of the separations of powers. W h a t are the solutions? O n e would formalize what has often been an informal arrangement, a legislative-executive council drawn from the leadership of both houses of Congress, amounting in some sense to an expanded Cabinet. This requires no formal constitutional amendment for its creation, although one might amend the Constitution to

254

Committee

III

provide for it. T h i s would have the presumptive advantage of stabilizing, as Corwin put it years ago, " t h e personalized and unstable political standing of the President" 1 0 by a necessity to consult regularly with Congress. It would create a more collective leadership in our society. T h e next step would seem difficult to work through. It's the vote of confidence. Congress could declare an issue to be a vote of confidence, deny a President its confidence, and thereby force the President to seek reelection. This would be a mitigation, perhaps, of the constitutional separation of powers, but it would not abolish it. T h e r e are intermediary minor steps such as both the President and Congress going to the country, or the President could dissolve C o n gress and force Congress to go to an election. T h e next major step is simply an adoption of parliamentary or cabinet government on the model of the British system. T h e one reform that people have talked about most is the four-year term for the House of Representatives, a measure that might go some distance towards mitigating the political differences that occur in the separation of powers. It was proposed seriously by Lyndon Johnson. Congressional elections would thus be co-terminous with presidential terms. Some House members think it's a good idea, but feel that congressional terms ought to be off-year instead of coinciding with presidential terms. Some Senate members would oppose it because it frees members of the House to run against members of the Senate for their seats, unless you make a member of the House give up his seat in order to run for the Senate. McGowan: In some respects, at least, there is a relationship between this problem and the one we talked about earlier. Although my personal preparation for the Bicentennial year has not been extensive, I did read Professor Bernard Bailyn's book, The Ideological Origins of the American Revolution.'1 He attributed great significance to the discontent which the colonists had, not so much with Parliament, but with the fact that Parliament was being run by the monarchy. This was a great contributing cause to the break. Strengthening the party system would probably make the President stronger in relation to the Congress. T h a t might conceivably raise the same kind of question because the President does have, as the King had in 18th century England, ways to coerce the members and the actions of the legislature. In our court, separation of powers is a point frequently raised. But in my time there have been relatively few occasions when the resolution of the case before us required resting it on a view of the separation of powers. There have, however, been two exceptions in my time. O n e was in the field of executive privilege. W e had two cases in our court on that. Nixon v. Sirica'2 involved the subpoena by the grand jury of the first group of the Nixon tapes. T h e argument made by counsel for the White House was an all-out separation of powers argument, to the

Shaping of Public Policy

255

effect that the President had untrammeled discretion, because of the separation of powers, to decide what he would and would not make available in response to the grand jury subpoena. Although we were overshadowed by the later case in the Supreme Court, 13 we decided in that first test of separation of powers that Nixon had to respond to the grand jury subpoena. Three or four days after the decision, the White House threw up its hands, as far as that case was concerned, and decided not to seek Supreme Court review. Then we had a case involving the same tapes. This time the Ervin committee 14 was seeking to get those tapes. The case had lost some of its significance because our court had already ordered the tapes in question transferred to the House Judiciary Committee for the purposes of their impeachment hearings. In any event, we distinguished sharply between that case and Nixon v. Sirica, that is, between the grand jury subpoena on the one hand and a congressional committee subpoena on the other. Although there was a divided en banc court in Nixon v. Sirica, we had a unanimous court in denying the Ervin committee subpoenas. A lot of people had trouble understanding why our court could reach the result we did in one case and a completely different result in the other. It seemed to us the whole history of relations between Congress and the President, with respect to the obtaining of information, has fallen more in the area of political struggle. The President hangs on if he thinks the country is with him in refusing to turn over materials requested by Congress. In the same way, I am sure Congress would hang on against a request from the President for papers if the politics of it were in its favor. These controversies between the Congress and the President over the release of information, almost since the beginning of our Republic, have been resolved by political pressures. That's not a bad way. It is in sharp contrast, however, to the grand jury seeking papers as part of its function to investigate the possible commission of criminal acts. It was true in our court, and it was true later in the Supreme Court with respect to a different group of tapes, that the grand jury should prevail and the separation of powers should not prevent it. The other case we recently had also turned on the separation of powers. That was Buckley v. Valeo in regard to the Federal Election Campaign Act Amendments. The separation of powers point was critical in connection with the Federal Election Commission. It turned principally upon the fact that, of the six members of that commission, two were designated by the President and four by the Congress. A very strenuous claim was made that that violated the separation of powers. It was argued that the President should appoint all the members of the commission. There were other provisions in that statute that involved the same issue. Congress had gotten a little expansive on the commission's power to initiate criminal prosecutions on its own motion. W e thought we had an agreement in open court between the commission counsel

256

Committee

III

and the Department of Justice counsel that the commission would never exercise that power. That was represented to us as being satisfactory to the Department of Justice. The Department of Justice changed its mind about that when it got to the Supreme Court. W e decided we could postpone many questions which weren't yet to the point of the actual exercise of specific powers. But we decided that the separation of powers concept has sufficient flexibility in it to embrace that kind of appointment of a member of the commission because there were certain rationalizations which made sense. After all, an incumbent President tends to have a great stake in elections and in the financing of elections. It could be argued that it made some sense in this instance to disperse that power between the President and the Congress. Well, we didn't get a single vote in the Supreme Court in support of our position on that issue. If you read the Supreme Court opinion closely on the election commission, you will see that they made repeated reference to the fact that a number of months had elapsed since we had decided the case. The fair inference from that was that the Supreme Court had been reading the newspapers for those last several months during which a House committee had been laying a heavy hand on the commission. Incidentally, Mr. Chairman, your office figured prominently in that argument. Although you are appointed by the President, it was argued vigorously that it would be quite appropriate for Congress to appoint the Comptroller General because he is in a sense a representative of Congress. Delegation of Authority One of the most pressing problems of the separation of powers that I see at the moment, in cases that come before us, is the unconstitutional delegation of legislative authority. Congress over the last few years, and increasingly so, has fallen into a pattern of making broad delegations of power to executive agencies in the environmental field. We had a classic case which I hope will go to the Supreme Court, the leaded gasoline case. 15 Congress made a delegation to the administrator of the Environmental Protection Agency which could practically eliminate the leaded gasoline industry if he found that it might endanger public health. When I asked counsel for DuPont, the chemical company involved in this case, why he hadn't raised the question of unconstitutional delegation of power, he said that it has been assumed for many years that you get nowhere with that argument. I said probably that was assumed for many years before the Schechter]6 and the Panama Refining^17 cases. It was just possible that the Supreme Court once every forty years would shake up Congress by holding that the delegation was bad. Congress seems to salve its conscience by writing in judicial review,

Shaping of Public Policy

257

as if the courts will take care of any problem, unfairness, or inequity. That is a problem, particularly in an area like environmental protection where you get experts lined up on both sides who don't know for sure what the consequences will be. This is particularly true of an agency where there is "informal rulemaking." An informal rulemaking record resembles the kind of record made by a congressional committee considering legislation: letters, expert memoranda filed by both sides. There are no findings by the administrator in the way that would be done in an adjudicative proceeding. That kind of record puts the court in essentially the position of making a legislative judgment on the basis of diffuse evidence. This has all kinds of implications. One is that the courts, generally, may tend to affirm whatever the administrator does, whether he holds for or against the industry. From the standpoint of representing a client, if you don't win these battles at the legislative level, you are not likely to win them in judicial review. You can also say that where the standard is as imprecise as that, judicial review can't guard against the consequences. The Ethyl case will be a good case for the Supreme Court to see what's going on in the way of broad legislative delegation with reliance on judicial review. It imposes difficult problems upon the regulatees and a burden upon the courts. The public may think courts can discharge it efficiently, fairly and wisely, but it is not really the business of the courts to decide what is wise legislation. Neither the separation of powers, nor any other doctrine, contemplates that the courts are going to be effective in voting on the merits of legislation. This leaves them in a position of being a legislator. Chairman: This last point is a growing concern to a great many people in the federal government. Part of it seems to stem from a lack of decision-making points within the executive branch that can weigh, particularly in the environmental and safety areas, the burden versus the benefit. The courts are being called upon by citizens and interest groups to resolve what the executive should resolve. McGowan: That's right. We had a food-stamp case 18 recently where Congress debated for months what the level should be. They finally decided to delegate the whole decision to the Secretary of Agriculture. Congress has a sort of child-like faith in the courts. Let the courts handle it. It's time the Supreme Court addressed the question. Gilbert: That's one of our more serious problems in society—legislative delegation and its scope. But there are rather obvious limitations on Congress's ability to be more specific. Our system of separated powers makes heavier demands on the legislative body towards specificity than other systems do. The scope of legislative delegation in Britain is characteristically broad. There is no separation of powers there. The administrative agencies are still formally under the control of the cabinet, and, in turn, formally under the control of the legislative body. McGowan: In a democratic system, the people have a right to have

258

Committee

III

Congress vote specifically w h a t it wants, rather than have it passed along to the courts where it's essentially undemocratic. Gilbert: O n c e Congress as a whole gets through with the broad delegation, then administrative action is parceled out to committees or frequently to individual Congressmen. From a national-interest standpoint, it is bothersome, and lends itself to rather specialized intervention in behalf of rather specialized perspectives. Chairman: Well, what would happen if the courts just refused to act on a case of that type on grounds that it is not the proper process? Gilbert: O r that they haven't a sufficient statutory standard. McGowan: A court could do that b y holding it an unconstitutional delegation. Sundquist: T h e Schechter case w a s the last such holding? McGowan: N o federal statute has been held an unconstitutional delegation of legislative power since that case. Schlossberg: A s recently as establishing w a g e and price controls in the f a c e of private contracts and without guidelines? McGowan: Yes. T h a t came to a three-judge district court. 1 9 T h e y had a serious problem about delegation because the grant was a broad one. Schlossberg: A n d very v a g u e ; there w a s no standard. W a s n ' t the separation of powers the controlling argument in the case where the President impounded f u n d s ? McGowan: Y e s , that w a s involved. T h e only case that I was in that related to impoundment w a s a Housing Act case. 2 0 There the record s h o w s that Secretary R o m n e y had decided to suspend these programs because they simply weren't working and were wasting the taxpayers' money. So he just suspended them. T h e record showed quite clearly this had nothing to do with budgetary considerations. Schlossberg: T h e water and rivers 2 1 and the poverty program 2 2 cases were budgetary. McGowan: Yes. T h a t ' s w h a t I call true impoundment—cases where the record clearly shows the decision to suspend the program was due to a Budget Bureau warning. Sundquist: Y o u left that price and w a g e control case without talking about the outcome. W h a t w a s that? Schlossberg: T h e delegation w a s upheld. Schechter is still the last case. McGowan: It was fashionable in the law schools to teach that the delegation question w a s no longer relevant. Perhaps so, but Congress is now f o l l o w i n g a pattern which is going to raise the issue again, probably f o r Supreme Court consideration. Justice Brandeis in the Schechter case took a dim view of excessive delegations. Chairman: T h e impoundment issue w a s a fascinating case in illustrating executive-legislative separation of powers. It is an area you cannot strictly define in legal terms. W e have the responsibility n o w to make that definition. W e don't think Title X of the Congressional Budget A c t is a good idea. A s a matter of f a c t , w h e n this issue came up, beginning with President

Shaping of Public Policy

259

Truman, we and the Justice Department both said that it was not a legal question, but a political one. It's in the realm of executivelegislative negotiation. Schlossberg: But it became a legal issue when the issue was forced into the open. Chairman: That's right. The Congress had little alternative to writing Title X. The question really hasn't been fully resolved yet. The law says now that the President can defer spending within a fiscal year, and the Congress can, by one-house action, override that at any time during the course of the year. The other is what is defined as a rescission. What is a rescission? This issue will come to the courts. Now we have the authority to go into court if we make a finding that there is a rescission, and the agency does not take action after forty-five days to release the money. We filed suit in one case in the housing area—over $200 million was involved—and the Justice Department brief claimed that we had no standing on the grounds that we were an agency of the legislative branch. It didn't argue merit at all. As the case proceeded, they released the money based on what we understood to be informal advice from the Justice Department that they could not win their case. One-House Veto McGowan: Another issue emerging is this question of the one-house veto. Congress passes a statute saying that it shall be implemented by issuing regulations. Of course, the regulations have to be within the statute's framework. Sometimes Congress puts in a one-house veto. There is a bill in Congress which provides that one house of Congress can veto any regulation made pursuant to authority conferred by Congress. The Justice Department is opposing this very strongly on the grounds of unconstitutionality. There are doubts about how one house can, in effect, nullify its own statute by vetoing the regulation simply because members don't like it. Chairman: An even more extreme case is where the statute requires a committee to approve actions prior to their being taken by an agency. McGowan: This came up in the Presidential Papers Act, 23 which provided that these papers' accessibility to the public must be governed by regulations issued by GSA, subject to the ability of one house to veto. When the regulations were first submitted to Congress, a Senate committee staff had gone over them carefully, and didn't like some of the regulations. It vetoed all of them and said to bring them back by October 15. In this case there was a three-judge district court that considered challenges to the constitutionality of the statute. Mr. Nixon was the first President in history who never had a chance to throw away his papers. That created a problem. The court thought that the ultimate constitutionality of the act might well turn on the nature of the regulations. If, for example, there were regulations which put some limitations on access for ten or twenty years, that might be relevant

260

Committee

¡11

to the question of the constitutionality of the act. There is going to be a lot of litigation over these regulations whenever they do become effective. Actually, the regulations were resubmitted in October and withdrawn in January. T h e y become effective in ninety days with the one-house veto. T h e y were withdrawn in J a n u a r y in order to be reexamined in the light of the court's opinion, but they are due to be resubmitted later this month. Judicial review is provided for those regulations, and there will be a number of attacks on them, I am sure, particularly if they do include some access restrictions for a period of time. Then you will see the split among the Reporters' Committee on Freedom of the Press, the American Historical Association and groups like that. Frug: One of the reasons Congress doesn't want to write specific legislation is because it's hard to say at the outset of any particular program what's binding f o r the future. T o what extent would it be possible to give Congress the authority, in terms of implementation of congressional statutes, to have some sort of continuing responsibility to run a program? It might make Congress less a critic of presidential implementation and more responsible f o r getting the job done. It would give Congress a different focus if it not only had to set some sort of broad outlines, but had to make day-to-day decisions. T h e problem with that is there are probably some serious constitutional problems. Section 6 of Article I of the Constitution provides that no person holding any office under the United States shall be a member of either house during his continuance in office. One basic issue is whether it makes sense to provide such a sharp break between implementation and congressional membership. Gilbert: That is the basic separation of powers provision of the Constitution. T h a t ' s really what distinguishes our system from others. Stark: We should not forget the oversight function. Congress may have erred in recent years, but oversight may be a viable answer to some of the questions raised. Chairman: Something short of delegation of authority can be effective. That is through an oversight process, short of requiring committee approval or one-house action. T h e tendency is for executive agenices to want somehow to come to agreement with Congress on an informal basis. T h e problem is that you usually end up with inadequate arrangements for oversight and interface discussions, short of forma] action by the committee. Except f o r a committee report, there is no formal action binding on the executive agencies. Judicial R e v i e w Ranney: W e m a y be overlooking an important point here—the impact of judicial review and the impact of separation of powers. T h e schoolbook notion of three fiercely jealous branches of government, each wanting its own power and greatly resenting interference

Shaping of Public Policy

261

by the others, is not entirely accurate; in fact, it's a buck-passing system with the courts as the residuum of it. It is not quite so simple as that. There are other countries with a parliamentary form of government that do not have judicial review as we would define it. But even in the British system, there's a version of judicial review that gets little attention from us because we don't recognize it. That's the role of the House of Lords. It's a legislative body of somewhere between 900 and 1,000 members, of which a quorum for doing business is three. The fact is that the House of Lords does serve as a committee of experts, and has many eminent ex-justices, many eminent ex-politicians and experts in the various fields of life. It is understood when a bill has passed the House of Commons, Lords will have a look at it, not with a view to changing its basic policies—that hasn't been possible since 1911—but with a view to catching some things. Most of the amendments which the House of Lords suggests, the House of Commons accepts. The House of Lords is not elected; its members are there for life. That's very important. Political scientists don't know, but suspect, that this buckpassing thing, which we might all deplore, is more a feature of judicial review than it is of separation of powers. Judicial review has been debated not only since Marbury v. Madison;24 some cases in the Massachusetts courts go all the way back to the 1780s. Thirty years ago, it was an issue we were much exercised about as a hangover from the New Deal court-packing scheme. That's not a live issue today. Judicial review is a fundamental part of our system. If you accept that, then a number of the things you are suggesting, Judge McGowan, would disappear. Gilbert: Even if we weren't to retain judicial review, we would still come out the same way because buckpassing to the bureaucracy would occur. People would say, "Well, that's where the expertise is; we'll draft the legislation in broad terms because we don't have the technical know-how to do it more specifically," which I think normally is not the case. The real problem is one of legislative agreement. Legislative Oversight By rom: On this oversight question, we might take a leaf from process technology or from ordinary good management practice. At the point these things are legislated there is some objective; there is a purpose. Rather than look to judicial review, what we need is a sensing mechanism. It's typical in process technology and in management practice that as you follow progress towards a goal, sometimes you find the goal wasn't proper. You have to revise it, or change the nature of the organization set up to implement the goal. In our system, we fail to have that sensing mechanism. The committee responsible for the original legislation ought to have some kind of responsibility for review as to what has happened in implementation of the legislation.

262

Committee

III

Chairman: T h e Boiling committee, 2 5 which recommended improvements in the operation of the C o n g r e s s , recommended a separate oversight subcommittee f o r each of the legislative committees. His committee felt that the Congress w a s not adequately discharging its responsibilities. Byrom: Frequently there are things that I am responsible f o r improving in our company. W e then delegate it to somebody to do. I certainly would not be fulfilling m y responsibility if I didn't check to see how it's going. Stark: One finds in Congress a good deal of w h a t you are saying. M a n y of the reform-minded members feel that the old entrusted chairmanship g a v e rise to this w a y of gaining oversight. Gilbert: Incentives in C o n g r e s s tend to run the w r o n g w a y on this. T h e y go in f a v o r of making policy, and the g r u b b y w o r k of oversight carries no glamour and wins no votes. A s to whether y o u can institutionalize Congress f o r oversight, it is a staff function to some degree, and the size of congressional staffs threatens to o v e r w h e l m elected congressmen even now. Perhaps the Congressional R e f e r e n c e Service, or similar kinds of institutions, could do the best job. Stark: I see change coming because the budget is a growing burden. Sundquist: A f t e r you h a v e improved oversight as f a r as possible, there are still grave limitations on its effectiveness, essentially because it's all after the fact. T h e same is true of judicial review. If you are going to prevent something disastrous from happening, oversight has to take place during or b e f o r e the act. T h i s is w h y Congress has the feeling it has to be in on decisionmaking in some systematic w a y . If you hold an oversight hearing and find that something illegal has been done or is going to be done, w h a t can you do about it? Y o u can't rewrite the law. Chairman: Oversight means looking at an ongoing program to see how it is doing and how it should be changed. T h e Joint C o m mittee on Atomic Energy probably has done as good a job with oversight as any committee in the Congress. It has a requirement that the agency keep it fully and continuously informed of all actions. Gilbert: Surely there have been times w h e n there was a serious question as to w h o was running the Atomic Energy C o m m i s s i o n ? Chairman: Y e s , and you get into the problem of whether they were, in effect, making management decisions. Byrom: There is a certain rate of progress in implementation which you expect. It's possible to set up automatic sensing devices based on transactional data. For example, I can be a w a y f r o m m y c o m p a n y and once a month get a set of data which, in three hours, tracks performance e v e r y w h e r e in such a w a y that I k n o w whether I should ask a question. There is such a thing as after-the-fact management w h e r e b y corrective measures can be taken b e f o r e there is too much damage. Sundquist: T o establish a mechanism w h e r e b y every proposed order affecting the environment would go up to Capitol Hill, and s o m e b o d y

Shaping of Public Policy

263

up there would review it, is impossible. Let's apply that to leaded gasoline. You find out about the leaded gasoline order after it's been issued. At that point an oversight hearing is held. The congressmen think it was a bad idea, but it's been done. If it's going to wipe out the leaded gasoline industry, it may have already taken effect. The committee may say, " W e disagree with what you did." But the agency will say, "Well, it's within our discretion. You go ahead and disagree. If you want to change it, pass a law." It may take two years to pass a law, and after two years it's a fait accompli. What oversight was there on the Mayaguez affair? The President did it overnight. He could get us into war. Byrom: Maybe the legislation creating the delegation should have anticipated that problem. Can't you vary the degree of delegation with the nature of the thing you are trying to do? Sundquist: The only way you can modify a piece of legislation delegating power is to have a come-into-agreement provision: before you can act, give us the right to veto the rule. That raises a constitutional question whether a committee can veto what the whole Congress has passed. Summers: There are some decisions that are irreversible. The ongoing process of governing and delegating, however, is either reversible with minor damage or incremental. Aren't there two sources of broad delegation which ought to be distinguished, particularly in terms of oversight? One is where much of the reason for delegation is that Congress simply can't work out details, can't foresee the evolution of the problems. This delegation may be very broad, but it's susceptible to oversight as the policy evolves. The other situation, such as in the ethyl gasoline case, is when Congress can't agree on where to go. So the role of delegation comes from an inability of Congress to make a decision. Oversight is not going to solve that problem. The agency will act. Or you will have an impasse so that what the agency has done is allowed to stand because nobody can agree to overrule. One cannot think in terms of effective oversight when congressional indecision is at the root of the problem. Pranger: The problem may be incapacity. How one gets coherent policy when interests are so diverse, and becoming more and more specific, has not so much to do with the failure of individuals to be courageous, as with the number of people who support a given interest. Schlossberg: Let's take as an example the Employment Act of 1946. 2 6 It allegedly embarked this country on a full employment policy; it gave certain duties to the Council of Economic Advisors and to the President. Full employment was coupled with price stability. Gilbert: And "full" was stricken. Schlossberg: Yes. What happened was when you had a Democratic

264

Committee

III

President he emphasized the employment policy. W h e n you had a Republican President, like Eisenhower, he emphasized stability. A n d it didn't work. T h a t ' s w h y you have the H u m p h r e y - H a w k i n s bill, 27 because the full employment compact fell apart. T h e r e have been two lawsuits alleging that the President and the Council of Economic Advisors were disregarding the Employment Act of 1946. Those lawsuits are doomed because there is so much discretion in the executive and the Council of Economic Advisors. But there seems to be an understanding that this compact has been breached; that Humphrey-Hawkins is needed to renew this. W e have to get a new consensus. Stark: T h a t ' s right. The main criticism of the act is that the goals are not specific enough. Indeed, the use of outmoded ideology has resulted in an increase in unemployment on a chronic basis without any commensurate offset in inflation. Byrom: W e should understand what we are talking about w h e n we question the Employment Act of 1946. It did not include any reference to price stability. It implied that the executive and the legislature were responsible for maintaining a consistent level of employment, using fiscal policy. It did not state any measurements of expansionary impact and price stability. That has been read into it. Add to that the fact that we do not have a set of indices on unemployment that are measurable and meaningful. W e talk about 4]/2 or 5 percent u n e m ployment. This is a mixture of 38 percent unemployment for sixteento nineteen-year-old nonwhite teenagers and 3 percent u n e m p l o y m e n t for twenty-year-old male heads of household previously employed. W e mix those two numbers and come up with 8 percent or 6 percent or 5 percent, and then presume to establish fiscal policy on that basis. You and I are in agreement that it's a bad law. Schlossberg: Right. Byrom: But here is another case where the law has not been tracked. Stark: There has been a continuous debate on what we could do under the Employment Act. The critics have held that if there were higher goals, they could be achieved. Summers: Isn't this a classic case in which Congress can't develop a policy? It has been twenty years. W e talk about oversight w h e n everybody knows there is a problem, yet we do not get any legislative action. Pranger: The issue, as Mr. Schlossberg rightly points out, is the removal of the compact. And the term "compact" means coming to some kind of agreement within the legislative process. There may not be a national compact on this issue because the groups involved have actually intensified the adversary positions with other groups n o w also in the picture since 1946. Stark: W h a t we have is a fundamental ideological difference as to what can be achieved in the way of high unemployment and maximum resources. Sundquist: The act said that the administration shall take such

Shaping of Public Policy

265

steps necessary to bring about maximum employment, production, and purchasing power, but somebody in the course of passing that act inserted a clause which said, "consistent with all of the other objectives of the government." This makes clear that Congress would not say in 1 9 4 6 , or any other year, that this set of objectives is going to be preeminent. So it has to delegate to the President much discretion to balance the needs of employment with those of price stabilization. Byrom: Yes, but it implies that fiscal policy is the means by which you deal with unemployment, whether structural or susceptible to change. Sundquist: I don't think that's true. T h e act says, take whatever means are necessary, and that includes fiscal policy as well as all kinds of structural measures. Byrom: No. The bill says that fiscal policy should be the mechanism to deal with the problem. Stark: Well, the act provided no new powers, either to the Congress or to the President. One could say that the state of the art was such that we used macroeconomic policy and fiscal, monetary, and Keynesian theories. Ironically, we are at a point where that's under question. Byrom: The bill was passed when we thought we were facing an employment crisis. T h e whole thing was aimed at trying to make sure that we didn't run into catastrophic unemployment in the United States after the war. Sundquist: But under the Employment Act, Presidents have proposed legislation to deal with unemployment. The Area Redevelopment Act 2 8 came up in the economic report; the War on Poverty was launched in the economic report. If the President chooses to take a broad definition of the act, he can certainly make an attempt to cover all kinds of things. Schlossberg: They did. In the early days different Presidents emphasized different aspects. In the last two administrations the emphasis has all been one way. T h e act is meaningless, and needs looking at again. I don't think that a lawsuit would knock it out. Stark: The Joint Economic Committee has reviewed performance under the Employment Act regularly, but there hasn't been enough specificity in the standards. W e have also had ideological differences as to how one achieves full employment. That's a matter of the state of the art rather than the law itself. Sundquist: The Housing and New Development Act of 1970 2 9 is somewhat like the Employment Act of 1946. It required that there be a national growth policy and that the President recommend one in a report every two years, similar to the economic report. T h e President disagreed. W h a t can Congress do to get the President to do what the law very clearly directs him to do? Chairman: I would suggest that if Congress settles all these issues the way we are inclined to say they should, it would deprive all of the presidential candidates of campaign material.

266

Committee

III

Party Control in Congress Stark: As to this question of separation of powers, one sees a considerable growth of party strength at work in the Congress. By that, I mean the ability of the majority to coalesce and decide on major policy issues. This party role is expanding. O n e can look to the growing power of the Democratic caucus and the decline of the old baronial committee system. A striking example of the kind of party responsibility that I can cite is energy. The President presented his energy program in 1974 or early 1975, and the House went to work on an alternative and came up with a bill. At the same time in the Senate, Mansfield appointed a committee under Pastore, and another version was prepared. These were worked out in joint meetings, and then the delegations went to the W h i t e House and developed a compromise with the President. Now, regardless of how one might regard the final product, there is evidence here of a new process at work. It conforms with the ideas of some of the early reformers. Another example is the tax reduction of 1975 where, again, there was considerable congressional effort which provided an alternative to the President's proposal. O n a more pervasive level, we have the Budget Control and Impoundment Act, which I see as a rather extensive effort on the part of Congress to assert a much greater control over the spending patterns. So far there has been a greater assertion of party, a majority decision-making process. There is considerable interest now in planning, in developing some kind of permanent procedure and mechanism for setting long range goals. Isn't it strange that these developments occur in a period when we are told that the government is widely held in low repute among the electorate? Chairman: There is one school of thought which says that the President and the Congress are natural antagonists under our constitutional separation of powers. It has been true whether or not the President and the Congress are of the same political party. How does it look to you? Perhaps it's the presidency that's under a cloud rather than the Congress. Stark: In my fifteen years as a staff adviser, that's been true most of the time, pronouncedly so now. But it's not so bad. M y experience has led me away from the notion of a strong President. If we had more strength in the presidency, we would be no better off. If the President had dominated the Congress, I would question whether the body politic would be in any better shape. Chairman: Austin Ranney suggested that with T V the President is the one person all people visualize as the government. That gives him an advantage as far as the Congress is concerned. Kanncy: Quite surprisingly, it doesn't show in the polls. T h e relative popularity of the President, Court, and Congress has stayed the

Shaping of Public Policy

267

same right through Watergate, although there has been a reduction in the percentages for all three. Byrom: I don't agree that we have gotten along. I hope I am wrong. Our system of analysis, our understanding of the nature of change, as it is taking place, is not sufficiently broad for us to perceive our problems. For example, we have an energy crisis and we have not done a thing about it. Capital-intensive industry is moving to where it will not be able to replace itself, not because of governmental policy, but simply because our society doesn't appreciate the function of profits in a private enterprise system. It doesn't perceive the function of retained earnings as a means of increasing the production base. These things take a statesmanlike long-range understanding. If you don't do something about it today, when the problem hits you in 1990, it's too late. As far as I am concerned, our political institutions today are incapable of dealing with the problems of our society. Stark: I am talking in a relative context. You agree that we have a simplistic and somewhat naive set of measures to deal with fundamental long-range problems. Byrom: You and I understand that our knowledge of the microeconomic organs of our system are nil. Stark: Right; we have to develop that capability as a people. Donovan: We should consider the separation of powers within the executive branch, between the President and the independent agencies, the professional military, the civil servants, the entire bureaucracy. I recall Truman's remark before Eisenhower came in: "Wait until he gets to that desk and pushes a couple of buttons, and nothing happens." With the size of government, the public disaffection is not so much with the President as an individual, or with individual congressmen. Candidates are running this year against government in the abstract, and its vast extent. Maybe we have arrived at more of a separation of powers than we really intended. Maybe the restoration of some kind of healthy balance between the Congress and the executive could be accomplished, not by the President invading the powers of Congress, but by the President acquiring more control over his own executive establishment, and becoming more fully accountable himself for what is done within the bureaus and departments. Kirkpatrick: This is very much like Richard Neustadt's 30 view that the President is in many ways closer to, and has a much more sympathetic relationship with, Congress than with the bureaucracy. He has as much trouble getting them to do anything, or getting anything out of them, as does Congress. Legislative Oversight Cohen: I generally like to defend the changes that have occurred in Congress; I think they have been real and substantial. Yet there is often an absence of impact in most public policy that we adopt. That's part of the difficulty we see in the delegation of power. A couple of

268

Committee III

changes have worked well in which there was impact, like public accommodations, Title II of the 1 9 6 4 Civil Rights Act 3 1 or the 1 9 6 5 Voting Rights Act. 3 2 It was designed with little delegation. It was as close as we have come to something that is self-executing, and the impact has been profound. I had my share of success in the 1960s, slipping amendments into the Housing Act, only to watch them be ignored in a Democratic administration as well as in a Republican one. I am also struck by the tremendous built-in difficulty Congress has in changing itself. T h e Boiling committee recommendations on jurisdictional changes, referred to earlier, finally were adopted after all sorts of prodding. None of us knew what would happen when the Senate finally created a committee, for the first time in thirty years, to look at itself. Look at the budget process difficulties in the House. Dealing with impoundment was the seduction to get Congress to discipline itself on the budget process. W e don't know whether it will work or not. There is difficulty in legislative institutions changing, and of course the escape from responsibility seems a permanent condition. W e have to find ways to get built-in reviews, knowing that the current appropriation and authorization processes don't result in the necessary reviews. One way of doing that is considered in the Muskie-Percy approach: building in review of programs so the relevant committees are forced to examine them. That is the " s u n s e t " approach. The other possible way of doing it is when Congress does delegate, it ought to find a way of reviewing the experience, actually writing it into the legislation so that the oversight means something. Teune: T o offer a slightly different perspective on separation of powers and oversight, our separation of powers was an attempt to design a control system to make certain things happen and certain other things not happen. T h e veto power is cheap. How do we solve problems such as energy while we continuously increase the structure and reduce the cost of vetoing in the system? How can we come to a consensus and then design a control system that would ensure that we get where we want to go? It isn't entirely a problem of agreeing on the goals. In reference to Mr. Byrom's "proportional control" or "deviation-reducing control" systems, the data are continuous. There are certain kinds of norms that one can establish in terms of performance. O n e can put control points at appropriate levels. This is well understood in control system engineering. That is easier than the kind of problems we face in designing a political control system. You don't spot the problem until the deviation has already taken place. This is most dramatic in the area of foreign policy. In the political system there are substantial difficulties in designing any kind of oversight system that will work. One more point. Congress may not be up to that because one of the problems is information, how to aggregate it at a level sufficient to hit a large range of points in the system. Congress is a limited hierarchy

Shaping of Public Policy

269

in comparison to other organizations where one can aggregate the entire range of relevant information for the particular kind of control you want to exercise. As long as Congress is an elected body of peers, the points of aggregation it can demand are always going to be limited. A tracking system is not likely. Pranger: The issue of veto is important because it is precisely this phenomenon which students have pointed to as being prevalent in an egalitarian situation. That is to say, if Congress is moving away from seniority toward a more non-hierarchical structure, the work of Congress is going to be even more impaired in terms of a leadership function. Investigative committees don't produce positive results or greater congressional leadership of a national program. Where one finds greater prevalance of the veto, there is less emphasis on leadership. That Congress is gaining in oversight functions in the legislative subcommittees does not mean congressional leadership is increasing. Congressional Planning Eastburn: We have talked here a great deal about congressional oversight, and John Stark used the word "planning." We are groping for ways to plan. Congressional participation in that process is rather dim. I can see a planning process whereby Congress is a sounding board. For example, say we have a congressional resolution where the Federal Reserve presents, once a quarter, its goals for money growth, and the House and Senate committees react to this. If that's what we mean by planning, perhaps that is a workable process. But if we think of planning as involving Congress in a more detailed sense, participating in outlining goals, checking and monitoring them, is this a meaningful hope for us? Stark: You have to distinguish between substantive uncertainty in the broadest sense—how do we use our resources, what inducements do we use, capital flows—and procedural reforms. You will never solve the substantive uncertainties with procedural reform, but you can bring together a mechanism for considering these problems in a more coordinated and intelligent way. The startling fact is that the federal government is a dominant element in the economy, with the $400 billion budget, massive tax effects, and monetary policy. The government invests, regulates, has a massive set of credit programs, and nowhere in that whole establishment is there an effort to coordinate the effect of all these on the economy. You have to make the executive branch do it, and get Congress into it. It's up to them to decide what dispositions through law we are to make in this matter. Eastburn: You don't call that planning, do you? Stark: It's a more cohesive, extensive effort to allocate all of our resources, not in a controlled way, but in a way that would coordinate alternatives.

270

Committee

III

Schlossberg: It would be desirable to have some consistency within a branch and within the g o v e r n m e n t , and to have the most i n f o r m a tion, the best data, and to use whatever methods will m a k e that data more useful, both to g o v e r n m e n t and to the private sector. T h e kind of planning I am talking about is the will of the people to demand just those things; to d e m a n d consistency and coherency so that you d o n ' t have an energy policy which conflicts with your environmental policy. This gets back again to responsibility and accountability. T h e Domestic Council could lend coherency and consistency to planning. It does absolutely nothing. Stark: It seems to be an ad hoc assignment. Schlossberg: T h a t ' s right. But that's one f o r m of planning. The other kind is the accumulation of data, the use of input-output so that long-range alternatives are presented. You collect data and make certain assumptions. W e can make national choices. T h e only way to do that is through effective procedures. You need a research instrument that goes beyond the two-year term, the four-year term, the six-year term, and beyond one administration; an instrument that has a responsibility beyond political terms, whether it's an instrument like the Federal Reserve or some other instrument that would be thinking about such problems. T h e trouble is that they have to not only think, b u t act. G o v e r n m e n t has to evaluate what it finds. Chairman: W e had a national resources planning board back in the 1930s. The Congress didn't like it and cut off its funds. Byrom: Let me t h r o w out the hypothesis, forgetting the rest of the world and thinking of the United States as an island, that probably less than 10 percent of the people can produce all of the material wealth that possibly could be consumed b y the other 90 percent. W e talk about stimulating the industrial sector to provide for employment. W e need to stimulate the industrial sector, or allow it to stimulate itself, but not to be sopping up a lot of unemployed people. Looking down the line, we have to as a society decide whether we are going to have 10 percent of the people produce the wealth which 90 percent of the people consume, or decide that 100 percent of us work 10 percent of the time with 90 percent leisure, or some mixture between those two extremes. T h e market system isn't going to do that. I am not going to go to a t w e n t y - h o u r week in our company. Because our society isn't capable of organizing it, Mr. Schlossberg and his group will be the ones to initiate it. T h e n the automotive industry would fight it because they would be at an economic disadvantage compared with other industries in terms of purchasing power. The social sciences have failed to keep up with the potential of technology. Because of that they continue to refuse to allow us to exploit the potential of technology. T h e y try to use arbitrary methods of fragmentation to prevent abuses. If we don't figure out a new system, we are going to gradually move to the point where our only ability to deal with the problem is by conservation. A democracy has difficulty disciplining itself by imposing

Shaping of Public Policy

271

austerity. If that's where we are moving, we are moving toward an authoritarian society. Chairman: Aren't you talking about presidential leadership? Byrom: I don't know. W e need to study the nature of change taking place. There is no single approach to the problem. Chairman: In spite of the talk about the Congress reasserting itself, getting better organized, it still waits for the President to take the initiative on most things. Five hundred and thirty-five people don't really have much capability as an organization. Presidential Impeachment Sundquist: Before we leave separation of powers, let's recall a year ago last summer when we had a President who was discredited and had lost his capacity to lead and govern. The processes of government, except the routine functions, were at breakdown. However discredited and out of control, even of his own faculties, he could have stayed in office for two, three, almost four years more. The disability amendment is very limited. The essence of that amendment is that you have to have a real demonstrable physical breakdown. Many people believe the President was incapable of governing, in a sense disabled, but not in the sense of the disability amendment. But let's return to the impeachment process. What you must have is a provable, indictable crime committed by the President himself. It wasn't until the "smoking-pistol" tape that you had the proof of that crime. Although there may be crime all around him by his close associates, a President can't be removed for that. There is a dispute as to what the impeachment clause really means and was intended to cover. The impeachment clause is whatever at least one-third plus one of the Senate says it is. You can be sure, since there will be that many senators of the President's own party, that they are going to demand proof of an indictable crime. Well, when Nixon finally resigned, everybody said the constitutional system really worked. The system did not work. If it hadn't been for a series of accidents Nixon would still be President. For two years we would not have had a government. W e had ten years, from 1964 to 1974, of essentially one-man governments. There is no protection of the kind of plural government that you have with parliamentary systems. If you are going to have an effective government, you can't limit that safeguard to instances of crime; a grievously bad judgment should be enough. In Britain, Neville Chamberlain was just losing the war. Nothing criminal about it. He was just letting the country go down the drain because he couldn't lead it in a wartime crisis. The British have a simple way of changing leaders overnight. In our system if a President were losing a war and there were three years left on his term, we would lose that war; nothing would be done about it.

272

Committee

III

Professor Gilbert suggested two or three ways by which the President could be brought under control. T h r o u g h some kind of legislative joint direction of the government is one way. T h i s would bring the presidency under restraint and give a plural rather than an individual leadership to the country. T h a t would be clumsy and probably unworkable. T h e President was not elected to deal with that kind of a council, and he could bypass it anyway. S o it seems that a certain amount of oversight power works well enough in routine cases, but we have to deal with the extraordinary situations. W h a t do you do then? A simpler method of removing Presidents has to be introduced in such a way that it is not too destabilizing. I like the Reuss r e s o l u t i o n , " which provided that the Congress for any reason can vote noconfidence in the President, and remove him. Schlossberg: D o e s it require a two-thirds vote? Sundquist: I am not sure what the current version is. It may be 6 0 percent now, but I don't think the protection ought to be in numbers. A majority probably, as in parliamentary government, ought to suffice. Y o u do need a restraint so that it won't be done just for whimsical reasons. In the Reuss resolution, as an appropriate safeguard, every member of Congress would also have to take his case to the country. In a time like 1 9 7 4 , when the public outcry against the President was sufficient, where he was staying in office against the majority will of the country, if the senators and congressmen didn't act to remove the President, they would jeopardize their own positions anyway. Chairman: W e r e n ' t you talking essentially about more liberal grounds for impeachment than we have today? Sundquist: No. T h e trouble with impeachment is that it requires two-thirds to convict. T h a t ' s too high, and you have the tradition surrounding the impeachment idea that this is for a crime. Schlossberg: I like the Reuss proposal because it makes Congress put itself on the line too. Sundquist: It also might go some way toward solving the whole problem of oversight. T h e President, if he had to command the confidence in Congress at all times, would take the Congress into his confidence in a more regularized way. Chairman: You wouldn't have so much executive privilege. Sundquist: Certainly n o t ; he wouldn't ride roughshod all the time. Byrom: During the period you are talking about, the government continued to run. Except for a crisis in foreign policy, where there has to be use of military force or economic embargo, our government doesn't really need either the Congress or the President. T h e agencies continue to operate, and the impact of Congress and the President on any of those agencies, or the direction of them, is small. It takes a long time to fundamentally change anything that they have started to do. So what we are talking about is international crisis or domestic insurrection. Sundquist: If you have a downturn in the economy or an inflationary surge you have to act quickly.

Shaping of Public Policy

273

Byrom: But we don't have it now. Chairman: You may recall that back in the Truman administration in the 80th Congress, Senator Fulbright proposed that any time the Congress is of one party and the President another party, the President should resign and have the Congress name a successor. Summers: That kind of a proposal is troublesome. It isn't that Congress lacks adequate instruments to bring pressure or control on the President; it wasn't that Congress couldn't have done anything about Nixon. Congress has control over appropriations and a whole range of investigative devices. As I saw the episode evolve, Congress just couldn't bring itself to do anything. Everybody else in the country knew something had to be done, but Congress was creeping up on it with caution and unwillingness to use any of the powers available to it, and couldn't even muster majorities, much less two-thirds votes. Pranger: The argument of Congress at the time of the Nixon impeachment was that it had to proceed slowly. There were institutional questions at stake. This sense of institutional guardianship was clear in the Judiciary Committee's proceedings and the way in which Chairman Rodino moved. The founding fathers designed the institutions to work separately from the passions of the moment. You are tampering with institutions in a major way, given the impulse behind them in the first place. Sundquist: I admit it is contrary to the design of the founders. Mr. Summers said, in effect, that Congress now has the means to exercise the control. There are many cases where that just is not true. Suppose the President is losing the war through sheer administrative incompetence, inability to lead and mobilize the resources of the government. Congress cannot do that for him. You have to get a new man in that chair. The Congress cannot substitute for administrative incompetence. The appropriations power has limits. Congress, even though it learns that the President is misusing the CIA or the IRS, cannot cut off the appropriations. It may choose instead to veto a series of presidential appointments. But that does not get to the root of the problem; it only immobilizes the government. Federalism Chairman: W e are going to discuss the federal system and what may lie ahead in the next 100 years. Gilbert: A progressive erosion of general-purpose government has been taking place at every level, creating more and more specialpurpose institutions. This process undermines, at the state and local level, the popular capacity for participation in the shaping of policy. There are good and often sufficient reasons for this, but we ought to resist it wherever we can. W e should talk about what we can beneficially decentralize in this political system, both for the facilitation of popular participation in the shaping of policy at the local level, and to take the load off governmental decision-making at the national level.

274

Committee

III

Especially in the last fifteen years there has been a significant change in our intergovernmental relations. W e see a good deal more of what I call "private federalism," the creation through federal grant policy of essentially quasi-governments, nonprofit private organizations with governmental functions. Some of that simply reflects the government's intention to establish voluntary agencies to do things that now serve public purposes. However, one question raised is the increasing dependence of voluntary organizations on government subsidy or largesse. Another is the use by essentially private, nonaccountable institutions of aspects of governmental authority and the kind of penumbra of authority that attaches to government. Both of these are potentially dangerous developments. An example is in the community action program of the War on Poverty. Another good example is the creation of quasi-government agencies in health planning. W e need planning at the regional level for health care, but we don't have government at the regional level. W e also have to deal with the constituency of providers, which is largely private rather than public. So the attempt is made to solve two problems: how to get a regional organization, and how to infiltrate and take over the private health providers. So you establish something like comprehensive health planning under the 1966 legislation, 34 now superseded by the Health Services Agency. These are special-purpose, quasi-governmental units vested with governmental powers, but not really constituted as governments. There are strengths in these, including public participation by clientele groups. There are weaknesses in the sense that these agencies are not broadly accountable and are not part of the governmental system in which people participate. They are not part of the governmental system which creates constituencies within which people can make comparisons about priorities. That seems to me one special purpose of government. We have had a change in the federal grants pattern in several respects. One is this tendency toward private federalism, and another is toward "direct federalism," that is, the pattern of federal grants directly to local governments, bypassing the states. In the urban affairs area most H U D programs follow that pattern. It's the pattern now of the community development block grant. There is also a growing tendency to use federal grants to restructure local governments toward more participatory mechanisms. There are vague admonitions in the general revenue sharing legislation, for example, on that score, and in the community development block grant, as well as in grant programs such as model cities or the poverty program. T h a t whole process of creating regional planning organizations with federal subsidy, for review and comment on local proposals for federal grants, is an attempt to bring about a regionalization of local government. My own view, and it's probably a minority, reactionary view, is that the federal system is a thing of enormous importance; that state governments have a potentially strong role to play in our system; and

Shaping of Public Policy

275

we ought to be strengthening state government as fast and as seriously as we can. We need an intermediate tier of government which interposes a structure of sovereignty with respect to local government. A supervising agency of local government gets you around all kinds of invidious, discriminatory and often corrupt behavior of local governments where they are not subject, as they commonly are not, to open political competition because they are small. Chairman: Are you speaking here of the state government level or more of a regional concept? Gilbert: I will leave it at the state level for now. I would like it strengthened, both for the supervision of local government, and to relieve the load on the national government. The question that next arises is whether you want to work with the present fifty states, or recast the state boundaries. Fletcher Byrom suggested that Pittsburgh and Philadelphia don't belong in the same state. Chairman: You might keep in mind how you are going to deal with the problems of New York City within the confines of the state. The GAO is involved in trying to develop a model or format for the economic base for the region, leaving aside what kind of organization could do something about it. As we see it, New York City's problem is not a three-year problem. The most acute problem is down the road five or ten years from now. Summers: We must keep in mind the different dimensions of the problem. Professor Gilbert mentioned the distribution of powers or functions in the hierarchical arrangement between the federal, state and local governments. When we look at the distribution of function, it may be useful to think in terms of rough categories of functions which are predominantly regulatory and functions which are predominantly service-performing. The problems of the exercise of powers and the political structures may be quite different depending upon which of these functions you are involved in. Frequently, and certainly in the grant-in-aid program, there has been a great deal of intermixing of expenditure, grant function, and regulatory functions. A third dimension is the distribution of functions between what we might call the government itself and the quasi-government or private organizations which perform some of the governmental functions. On the whole, I feel that the wider the distribution of power, as long as agencies can be kept under a modicum of control and responsibility, the better in terms of responsibility. Although it may be inefficient, I am generally in favor of fragmentation. What are the forces that tend to centralize power in the national government? To some extent, among lawyers, law professors, political scientists, academics and maybe many others, there is a great appeal for symmetry, system, neatness, efficiency. To a large extent that's unfortunate because it tends to put the emphasis in the wrong place. What it tends to lead to is the argument that there is need for uniformity. In the labor law area, for instance, there is a constant appeal for uniformity, an appeal for intellectual neatness rather than for actual need.

276

Committee

III

A second thing that leads to a centralization of power is that any time a particular group wants particular legislation, certain things done by government, there is a tendency to try to get it done wherever it can. Most interest groups are unprincipled in these terms. It's frequently difficult to get certain things done by local or state governments, and particularly by all of them. So if it can be pushed through Congress or through the federal government, it will be done there. There is always a turning to the federal government, at least as the last resort. If we move away from the regulatory process to what I would call the expenditure-service functions of government, local governments are predominantly service institutions. Generally, the functions of government at all levels increasingly have been expenditures and the provision of services. The problem in the federal system is that this tax-expenditure-service function has some compelling needs for uniformity. The tax base available for money to be used for these purposes is unevenly distributed. The needs for the services are also unequally distributed. The tax resources and the need for services or expenditures don't have any particular coordination. To a certain degree, the taxing function must become more heavily concentrated on a basis of national uniformity while the redistribution function has to be based on the needs of local communities. The question is whether we can design in the long run a political system which will make those who spend not directly responsible to those who tax. Chairman: You are speaking more broadly than of just revenue sharing? Summers: Revenue sharing is a small fragment of it. It is a preliminary effort to raise money from federal taxes and distribute it to the local units to decide how they want to spend it. It is an effort to preserve the local and state governments' effectiveness to function for service. The real question in revenue sharing is whether over a long period of time you can get Congress to vote taxes to be spent by local officials in the way that local choices dictate, particularly since there is some national interest in the way the money is redistributed. For example, are you going to let every state and locality decide what is an adequate welfare level? What I am concerned about is whether we either explicitly or by default leave what is essentially a regulatory power in the hands of private groups, whether they are regulating among themselves, like medical associations, or are in fact regulating other people. For the most part, we have let the private groups which exercise regulatory power just go their own way. Sundquist: I agree with what the legislative policy of the national government ought to be. But in this particular field of federalism the Constitution has lost virtually all of its meaning. The Constitution certainly intended that federalism would be a check and balance, and that we would have a limited national government.

Shaping of Public Policy

277

The Supreme Court, at any rate, so interpreted it at the outset. There was a case prior to the Civil War 3 5 when the Supreme Court ruled that the national government and the states are separate and distinct sovereignties, each in its own sphere. After the Civil War the grant-in-aid was discovered. The first grant-in-aid was for teaching materials for the blind. W h o could be against that? Then there was a program for grants-in-aid for homes for Civil War veterans. It then became a contest to see who had enough influence to introduce federal support programs, invading what had been considered the sphere of the states. This got by the Supreme Court in what you have to call a legal fluke. The Supreme Court decided that you can't bring taxpayer suits into the national courts as you can in some state and local courts. 36 The expansion of the federal government through the means of grantsin-aid was then unchecked. The earlier Supreme Court opinions tell us that had these cases been considered, this whole grant-in-aid system would have been thwarted in its early stages. By the 1930s the Supreme Court removed the last barrier to this expansion of national power. Schechter was the last case where a law was declared unconstitutional because it was a broad delegation of legislative responsibility. It was also in the 1930s that the last case was adjudicated where states' rights were upheld, 37 and the federal government was stricken down for invading the prerogatives of the states. As a practical matter, there is now no limit to what the federal government can do. This is very much a party question. Realignment of Political Parties Ranney: Do you think that this is a question of party philosophy, Republican against Democrat, or is it in-parties against out-parties? Historically, we have had a great switch in party positions. The Republicans once were for centralizing all power in the federal government while the Democrats were the states' righters up to the 1930s. Each party has now reversed its position 180 degrees. It has been argued, as you know, that any party in power in the federal government over a substantial period of time becomes identified with that government and is, therefore, going to be expansionist. Sundquist: As you say, the switch in party alignments took place in the 1930s. W e were in the middle of the Depression, and the Republican Party under Herbert Hoover took the view that the national government should not get into the field of direct relief for the suffering, that work relief and direct relief were not proper federal responsibilities. The elections of 1932, 1934 and 1936 turned on whether this was proper national responsibility. Should the national government have a responsibility for relief and massive intervention in the economy? It was on that issue that the people sorted themselves into the present pattern of parties. Since then the two parties have been quite consist-

278

Committee III

ent, whether they are in or out of power. All of the great waves of federal expansion have been under the Democrats. Ranney: But the Republicans have been in power for so little time. Sundquist: Well, they were in eight years under Eisenhower and eight years under Nixon. Ranney: But not in control of both the White House and Congress. Sundquist: Right. But Eisenhower came into office on a platform in 1952 that said this whole expansion of the national government was a Democratic plot to establish "national socialism." That was the phrase, and the Republicans pledged themselves to dismantle the socialistic apparatus. Eisenhower discussed it in his campaign speeches. In his first message to Congress, with all of the problems then facing the country, it is interesting that he highlighted the thing he most wanted to do: dismantle the federal government. Chairman: The Kestnbaum Commission 3 8 was set up. Sundquist: The Kestnbaum Commission labored over this question, and concluded that there is no field of any consequence in which the national government does not have an interest. In their specific chapters they recommended more expansion than contraction of the federal government. Eisenhower didn't take that for an answer, and at the governors' conference in Williamsburg in 1957, he proposed that, since the national government was usurping state powers and muscling into the state territory, an action commission be set up which would include both cabinet members and governors. He talked the language of dual federalism, an idea which goes back to the early 19th century. That commission, which couldn't have begun under better auspices, struggled with this question, and at the end of two years it came up with only two functions in which the national government had no role: vocational education and water pollution control. The latter seems odd these days. Benson: Is there in the Democratic Party, particularly within the younger element, a tendency to move away from reliance upon the federal government to local government? Does this not threaten a split within the Democratic Party? Sundquist: That seems to be happening. It could be transitory. The posture, though, of the Nixon Administration has been the same as Eisenhower's: let's do something to reduce the size and scope and power of the national government in favor of the lower levels of government. And so we have the grants consolidation and revenue sharing programs. But this is a current policy question, not a constitutional question, and that's what it should be. The Constitution is fine the way it is. Let's leave it alone. Ruth: There is a new field called "implementation research" which concerns how and why the execution of a program usually looks different from what the planners had in mind. W e don't understand exactly why. For that reason, it probably doesn't make any difference whether it's categorical grants or block grants or revenue sharing because no matter which way something is planned, things get out of hand before

Shaping of Public Policy

279

we have had a chance to analyze them. Eisenhower set up HEW in 1958. I doubt if he knew what that meant in terms of the future. The factual base is not there until you set up these quasi-independent or institutional fact-finding and analysis groups, such as the congressional budget group or the Brookings Institution, to figure out what happens when you change programs. Schlossberg: If I hear everybody correctly, there is some nostalgia for states' rights, not necessarily by amending the Constitution. It doesn't sound right to me. The reason the federal government got into these relief and other programs was because the states weren't doing their job. To return the responsibility to the states is retrogressive. We have states in the South that are fortieth in education, fiftieth in education, fiftieth in mental health. We are losing whole generations of people. Do you want George Wallace to decide if he is going to meet the needs of the people of Alabama? This is one country, and thank God we have moved to the national government to put some meaning in the general welfare clause. What would you do about the difference in the welfare standards and the medical health standards? Would the lowest common denominator govern? Is the most efficient city the one where they let people die, where they don't care whether kids get an education? Would you penalize the city where people move so that they can go on relief and get a little education? Pranger: One could argue that certain states have been ahead of the national government in certain areas such as health and education. In fact, the national government's role in education has largely been subsumed under national defense. It would be totally misconceived to put every state at the lowest level, rather than at the highest, in terms of welfare spending. Typically, the arguments against devolution of function have tended to focus on the state with the least per-capita spending rather than the most in education or social welfare. Michigan, for example, the size of Sweden, has a welfare program that is roughly comparable to Sweden's. The issue of devolution in terms of function is not related only to local, state, and national forms of devolution. We are talking here also about community action, neighborhood programs. There is interesting research both in terms of the failure and success of federal programs and the failure or success of devolution. We do not lack information. But this information has to pass through the American political system. The question of always looking at that worst case may be the first principle of political warfare, but it can't possibly be the basis for solid policy. Local Control Clusen: There was some thought emerging that government closest is of necessity the best. All of us have lived through too much to really believe that. What we are trying to say is that the federal system, by managing major programs and parceling out money, which is

280

Committee

III

the stuff that holds it all together, in a sense equalizes the opportunity. It is not a matter of good or bad examples, but how can we use federal funds in most cases to equalize opportunity, whether in education, employment, or health care. Earlier, someone said that spending money is not so difficult to control. I have deep questions about that, because at the local and state level it seems hard to control it. Since revenue sharing, we have tried to get people to participate at the state and local level in deciding how money is to be spent. Spending is very difficult to control, even with elaborate guidelines. W e are seeing an example now in revenue sharing. But this is not a constitutional question. Eastburn: It's a management problem of deciding what we want to accomplish, what our goals are for the nation, regardless of the governmental level. Then, what is the most efficient managerial strategy to go about this? You have to look at decentralization, as corporations do, to see whether this kind of practical solution applies. You have to look at revenue raising from a practical and managerial point of view: where is the money and how can you raise it most efficiently? Chairman: When you get to the structure and powers of local government, which are clearly within the domain of state government, there is a constitutional question of whether the state governments really are adequate to cope with the problems. This is particularly true where large urban areas cut across lines like the metropolitan areas of Kansas City, Chicago and New York. Byrom: I was chairman of a regional voluntary planning association before the community health program began. One of the great fears I have is that we will fund the present health-care delivery system before we effect a change in it. If we do, we are going to cast in concrete a costly, inefficient, inadequate resource allocation system. One of the best things that could be done about health-care delivery would be to create a transportation system that allows the disadvantaged to reach the available clinical facilities on a regional basis. By the same token, the question of the cost-benefit ratios of dealing with a particular water basin as a resource for recreation, potable water supply, acceptor of contamination, ought to be handled by a water basin authority. The ability to accept contamination is one of our natural resources, and there is no reason why it shouldn't be utilized to the degree that it can be accomplished without degradation of the environment. If you look at a metropolitan area such as Philadelphia, Camden and Wilmington, the problems relate to one another. Take health-care delivery, water pollution, water basin administration, air pollution, educational opportunities, transportation, housing. These problems are regional, but in more cases than not, the organization of the local system constitutes a barrier to, rather than an enabler of, progress. If that's true, shouldn't we recognize it? O r do we say the system can't be changed; therefore, we are going to have to muddle along until the whole thing falls apart? Ruth: One of the problems of regional government is that when

Shaping of Public Policy

281

you have a regional entity for a particular purpose, it lacks accountability to any one governmental constituent. Chairman: A very good point; there is no accountability system. Byrom: 1 am not suggesting that a regional authority necessarily fulfills the purpose under our present system of organization. Benson: I would like to redirect attention to goals and priorities. Steve Schlossberg confuses short-term considerations and long-term considerations. It may be that over the short term, such as how to get Alabama to have a minimum level of decency, there might be need for federal intervention. But over the long term that might be counterproductive. Perhaps the underlying question of this conference is, do you really want a—small-d—democratic political system in the United States? Can such a system work effectively for the general welfare? If we think that it can work, what would be its general and specific organization, and how would it differ from the ones we have now? If we know what needs to be done, how can we get it done? That turns on the distribution of political power, and what is happening now is an ideological differentiation developing in the American party system. It is moving toward ideologically differentiated parties, strong, responsible, responsive, and disciplined, and that's the only way the system can work. The Constitution—and here I will be radical—was a disaster. Intellectually and politically it never worked. It's a delusion to think that it worked. Within a short time the political elites had to abandon it in fact. That is the reason the party system was improvised. It was a series of disastrous improvisations, one reason it is so different than any other party system in the world. And that seems to be the crucial problem. How can we get an effective political party system? The constitutional process is the way to do nothing. It is not going to change. Madison and Hamilton deliberately made it impossible to bring about any basic constitutional change. Summers: I agree, it's not a constitutional question. It's a purely political question and therefore very important. The things that courts handle may be of lesser importance in the long run. In terms of the distribution between federal, state and local government, the first major mistake a person makes is to ask, is welfare a federal, state or local function? Or is health care? That's as good as asking the question, is pollution a local function or federal function? We have to ask, what aspect of which problem, given the situations, can we handle appropriately at which level? How do we get money to support the welfare system? It has to be at the national level because we are involved with maldistribution of the tax resources of the nation. If one is talking about adequate levels of welfare, then the federal system must support it because the states don't do an adequate job. But this doesn't mean that the whole system has to be federalized in the sense that it's run by the federal government. But how do we allocate responsibility where it will best be performed? The fragmentation of power, insofar as you can make it work, is a 282

Committee

III

value in and of itself. This problem of distribution is one of the underlying problems we have. Think of a water-planning area, a water basin—that's one geographical area. Air pollution—that's another geographical area. Sewage disposal—that's another. If one thinks of the most appropriate geographical region to be covered by any function, you end up with total disparity. If you try to regulate through such a system, you will end up with irresponsibility. W h o is going to control all these various agencies? What one ultimately does is end up with governmental units that are geographically rough compromises of something which will do adequately well for a wide range of functions. Then we try to develop interrelationships, coordinating units, area governments. To start out designing local government in terms of a theoretical, rational system ultimately leads to insanity. Pranger: It's interesting to hear that the party system arose to make the Constitution work. The party system hardly arose for such functionally political reasons, but was related to socio-economic factors. In many cases parties don't work well because of what is going on in society, the socio-economic movements of populations. Los Angeles had no air pollution until it expanded considerably. This is hardly the fault of the federal system, but rather of significant shifts in U.S. population. One might argue that we should adapt institutions to these changes, but before we do, maybe we ought to find out what these changes portend in the way of governing the United States. How can one, for example, control any of the institutions short of distributing identity cards or using a Soviet-type system? The movement of populations in the United States, the sheer mobile aspect of Americans, would have to be addressed. Before one blames the institutions, one ought to examine the socio-economic factors in American history which have created, in my estimation, not only the parties, but many of the other problems we now face. Policy-Making Rcirmey: Mr. Ruth and Lee Benson asked what difference does it make. If all we are talking about are the structural realities, it doesn't make any difference that more fundamental features are not amenable to rational control. They just happen. W e can say that a particular policy-making system is no guarantee of good policy. Take, for example, air and water pollution control. There is no doubt that one of the great success stories in the world today is what has happened in London. Those who know London have seen over the period of twenty or twenty-five years an absolute miracle. How was that done? Not by persuading local authorities to cooperate. It was centralized planning by Parliament and a centralized party system that adopted the policy. We can take equally centralized regimes, like the Soviet and Hungarian regimes, and see that air and water pollution in Moscow and Budapest are in the American style. In fact, a good deal worse.

Shaping of Public Policy

283

If the only criterion we apply to the policy-making process is what's the outcome, then we are forever going to be groping in the dark. But there are other considerations. Human beings, whether they be in a highly centralized or decentralized regime, are fallible, dealing with incomplete information in a situation of uncertainty, juggling values, and making calculations which perhaps will come out right or perhaps come out wrong. No set of institutions is going to guarantee good results. There are other values as well. I hope that we never, in this country or in this room, lose sight of the fact that there are certain values concerning the process itself that are at least as precious as any outcome. Many people recently were so absolutely convinced that a particular end—ending the Vietnam War or reelecting Richard Nixon—was so important that any means were justified. As far as I am concerned, morally and ethically, the people who blew up the physics building at the University of Wisconsin are exactly the same as the Watergate people. They had an important end, and felt that any means were justified in achieving it. If you accept that principle, you reject most of the values I think most of us hold. In my youth I was told of the virtue of the federal system, that it did set up a variety of decision-making centers which were able to act as an experiment. You could try out something on a subnational scale and see whether it worked. In fact, a good deal of the policies we have adopted in the United States, which most of us regard as our more successful ones, have been tried out on the state level first. There is always going to be a state that ranks fiftieth even though that fiftieth ranking may be way above what it is right now. What Mr. Schlossberg was concerned with, and we all are, is that the fiftieth provide a minimal decent level of education and welfare. W e tried a lot of experiments in Berkeley, California, which have well warned the nation not to follow. About three years ago, the Berkeley city council decided that the internal combustion engine, when encased inside an automobile, is ruining the amenities of life. So they proceeded to set up all over Berkeley a series of traffic barriers, one-way streets, making it hard to get around. Ambulance drivers now have to study for about six months the way to the emergency entrances of most of the hospitals. There is now a referendum to decide whether this experiment should cease. A good deal of study has been done with that experiment. I think the preliminary judgment of right-thinking people, which is not necessarily the same thing as the majority of voters in Berkeley, would say, "That's an experiment that has been given a good try, it's a ghastly flop, and whatever else we want to do with the automobile and the internal combustion engine, that is not the way to do it." Sundquist: I wanted to comment on whether this ought to be viewed as a management problem. Some have said that we ought to parcel out functions according to where they are best performed and

284

Committee

III

not according to any ideological basis. This seems to be impossible. Organization does become a matter of ideology and gets into politics whether we want it to or not. Harold Seidman 3 9 likes to say that organizational questions are never neutral. If you decide that there is a national problem, then it becomes a national objective to solve this problem. Therefore, W a s h ington should take it in hand and decide whether it should be centralized or decentralized. W h e n federal aid to education was debated about twenty years ago, the opponents asked why this was a national problem. And the proponents replied that the population was mobile and if the kids aren't educated in Mississippi, they wind up in Chicago. S o there is a real value judgment as to what is a national question. If you leave the question to the state, less gets done, less money is spent, the public sector is smaller, and the private sector is larger. T h i s isn't a management problem; this is a question of policy and value judgments. Should the national government extend itself further into the field of education and transfer more resources from the private to the public sector? This doesn't lend itself to any kind of mathematical analysis. T h e most crucial point is, when you move something from the state or local level to the national level in terms of financing, you move the burdens from one group of taxpayers to another. T h e people who have been in favor of nationalization and those who have been against it have both been aware of this important pocketbook aspect. State and local taxes are, generally speaking, regressive; national taxes are progressive. National taxes are the only taxes that hit corporations hard. They pay 5 0 percent of their profits, or something like that, to the national treasury. Upper income taxpayers are hit hard by national taxes. That's one of the reasons, although not the only reason, that the people of the well-off class—the corporations and the organizations that speak for them—have generally been against the whole trend of nationalization, and why the people Mr. Schlossberg speaks for, generally speaking, have been for it. Benson: Isn't that changing now? Someone made the point that participation tends to be greatest, most intense, and knowledgeable about things closest at hand. For a very long time, state and local governments have been an even greater disaster than the federal government. You go to the federal government because that's the only place to get relief. Now many states have moved towards community participation. T h e emphasis upon those mechanisms which actually provide for maximum meaningful participation would seem to be against your argument. W h a t had been true in the past seems to be rapidly changing as a result of basic changes in the participation process in the American government. I'm teasing now, but do you want to return to the New Deal? Chairman: I ask again whether this is a constitutional issue. I have a feeling that it is.

Shaping of Public Policy

285

Interstate Compacts Honnold: I suspect you are right. The problem arises where we are trying to deal with problems that need to be dealt with on a regional or multi-state basis. Colleagues here have been saying that there may be problems of accountability for regional programs. What is the constituency that controls a multi-state water basin, or irrigation basin, or environment-control basin? Without accountability to some appropriate constituency, hasn't experience shown that some regional bodies run amuck? Various regional problems have been approached by way of interstate compacts. The Constitution provides for interstate compacts through agreements of the states with the consent of Congress. I can't think of an interstate compact that has set up a regional system of accountability. It is worked out by agreement between a representative of the states and the Congress, and approved by the states and by Congress. Chairman: And funded by the respective bodies. Honnold: The controlling body is a commission which has state and national representation, but no local taxing power, no local voting constituency. Sometimes what the governor's man on the commission may be instructed to do may not be in the interest of the region. Indeed, it may be hard to get a compact system set up with enough power to do the regional job with the built-in accountability that some of you have suggested is important. It would be feasible to do something that has not yet been done so far as I can recall under the compact clause, that is, to delegate to the people of the region affected the power to vote—to control and to tax for the support of the regional program. That may be a shocking idea, but it's a structural question that we might raise. Chairman: If my recollection is correct, there have been delegated authorities for eminent domain where the acquisition of land is involved. Honnold: There, the responsible political bodies have agreed to it. It would be a strange Constitution, indeed, that said that what the states in New Jersey and New York, representing the localities, and the Congress, representing the national policy, all agree to, they couldn't do. So if you ask the question, is it constitutionally possible, it's difficult for me to say that it is not. But here perhaps political experts will say there is a political barrier to getting states to agree to this kind of allocation of legislative authority. To the people of the region, it may be politically impossible to get the consent of the legislatures of each one of the affected states. If that is true, then that would drive one on to a further constitutional question: should the authority to create regions rest within the strictures of the compact clause calling for the consent of all the states? Could Congress alone launch the regional program? McGowan: Of the regional entities that have been created by inter-

286

Committee

III

state compacts, the one most familiar to me is the Washington Metropolitan Area Transit Authority, 4 0 which was created by interstate compact. It operates the new subway and rapid transit system going out into the states of Virginia and Maryland. I am quite certain it has no taxing authority. I can't think of any that have taxing authority or voting power for the residents of the region. The counties in Virginia and Maryland are being asked to provide money for the extension of the transit authority into those suburban areas. The Port of New York Authority doesn't have taxing authority or any kind of lawmaking or voting. W e should consider whether that could be given them; there might be some constitutional problems about that. Byrom: In the CED's paper on improving the quality of the environment, 4 1 this question is addressed. The only place that I know in the world where it is being done is in the Ruhr Valley of Germany. The resource people on the CED study committee came up with no legal or constitutional barriers. They concluded that it was a practical thing. McCowan: They may be right. I don't know enough about the reach of the interstate compact authority. Byrom: All that have been created have been relatively sterile in terms of their ability to impose any kind of sanctions. Summers: Can you create effective interstate authority by compact arrangements? There doesn't seem to be much of a problem if at the onset the states and the federal government agree. Next is the problem of voting. Can you create an electorate for that agency? That depends on whether the state governments will agree to it. From the states' standpoint, that may be a constitutional question. But there will be a federal constitutional issue, and that is that you probably will be bound by a one-man, one-vote process. You couldn't have, for example, one representative elected from each state, each area, and so on. You probably would be bound by proportional representation. As to taxation, there is no problem if the states agree to allow the authority to levy taxes. They can do so. Many states will have constitutional obstacles, however, because the state constitutions will regulate the taxing authority in such a way that they can't delegate it wihout amending their state constitutions. Now comes the question: to what extent could the federal government impose upon an area a regional authority, a governmental unit, if the states don't agree? Chairman: The TVA is, of course, your prime example. Summers: You could create the agency, but can you create an electorate system? Can you create a taxing authority in the area to support the operation? There is a provision in the Constitution about levying taxes on a uniform basis. This was an obstacle to the income tax at one time, so then we had the income tax amendment which says that "The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several

Shaping of Public Policy

287

states, and without regard to any census or enumeration." Congress might not give the authority to tax, but would tax the income of the people in the area to support that agency. Pranger: There are really two kinds of extra-federal agencies. One would be from the federal government, such as the TV A, where a constituency is created. The other would be where there is some type of spontaneous compact among citizens across state lines where it's not a question of the federal government imposing taxation. Under the federal system would that jurisdiction have independent powers? Chairman: One difficulty, of course, with compacts is that they take a long time to negotiate. It took five years to negotiate the Washington Metropolitan Transit Authority Compact. The Delaware River Basin Compact42 took about as long. Anywhere along the line one state can veto, water down, and force others into agreement. It's a clumsy arrangement. During the Depression, Kansas, Oklahoma, and Texas entered into a compact to limit oil production as a way of maintaining prices. I am not sure what happened to that. McCowan: Didn't that go to the Supreme Court?43 Chairman: I think it did. Sundquist: That was ruled as an unlawful burden on interstate commerce. Chairman: I wonder if in the regional compacts or authorities there is a constitutional issue? McGowan: There could well be constitutional problems. You indicated that might derive in large part from the varying provisions of the state constitutions. I don't understand how the state can by joining in the compact do things or agree to things which its own constitution does not permit. State constitutions vary greatly. They have many anachronistic phrases in them. I think there would be a constitutional problem which might arise in the case of interstate compacts. Sundquist: But not the federal Constitution? McGowan: If the state itself had no impediments from its own constitution on what it agrees to do, the only problem is that the interstate compact might entrench upon federal functions that are vested in some federal agency. Chairman: It might be able to impose taxes on the population within the area concerned in contravention of state or local taxes. It might result in creation of another level of government above the state. McCowan:

It certainly could.

Urban Areas Donovan: Isn't there a larger problem beyond the three or four cities which have difficult state boundary lines? Cities that are completely, or 90 percent, within one state have an enormous political problem as to whether they can continue indefinitely into the next century, letting people flee tax obligations where they earn their money. The difficult aspect of New York's problem is that such a large and affluent part of the population of metropolitan New York 288

Committee

III

lives in Nassau, Suffolk, Westchester, and, to a lesser extent, Rockland counties. If there were a political will and agreement within the state, and if public opinion and the political leadership mobilized to prevent non-residents from escaping most of the problems of the city, you might make a change. In this respect, our governmental arrangements today are a fiasco. T h e weakest aspect of our government today is the inability to identify true responsibility and a true share of the costs of keeping u p places where almost 80 percent of the American population now lives, urban areas. Sundquist: Can the federal government use its vast power to clean up the mess in metropolitan areas within the states or within groups of states? The federal government could intervene and do w h a t the states have the power to do, if the federal government concludes that its concern is warranted. This came up w h e n revenue sharing was on its way through the Congress. Henry Reuss proposed an amendment which would condition federal aid on state constitutional and structural reform. 4 4 It died for lack of a second. There is the A-95 program where federal grants for local projects are conditioned on the existence of a regional body which approves, or at least comments on, the feasibility of each particular project. It compels the development of regional planning. You could by the same means, through revenue sharing, compel the elimination of outmoded and obsolete units of government. But there has been great resistance in Washington to interpose itself in an area like that, for essentially constitutional reasons. T h e states have the power, and w h y should the federal government supersede them? Gilbert: I am a bit unreconstructed on this subject. W e tend to overstate the archaism of our local arrangements and to overstate the range of functions that are appropriately, or, as we usually put it, necessarily regional. If you review the list of functions that are arguably regional, ones that have a utility or quasi-utility function that can be put in special districts and priced in terms of user charges, they don't raise serious problems of accountability. The serious problem is the fiscal problem. Revenue sharing is a partial answer to that. Revenue sharing returns in higher proportion to the poor central city than to the rest of the metropolitan area. So one way to attack this problem is through intergovernmental taxing and grants. And the other way is through regional reorganization. Chairman: The other day w h e n Mayor Beame and Governor Carey were testifying about New York's financial situation before the Senate Banking and Currency Committee, they were suggesting that the federal government pick up N e w York City's welfare load as a way of dealing with the problem. This would add up to $800 million a year. But Secretary Simon asked where you draw the line, because after welfare there are schools, police, fire prevention. W h y pick welfare? It illustrates a point: where do you stop centralization and governmental functions?

Shaping of Public Policy

289

Donovan: New York welfare rates and regulations did attract a welfare population from all over the country, whereas the school system did not. Population Redistribution Teune: One of the more interesting comparisons of the United States system with some other countries is what I call the "open migration rule." We do not impose political barriers on people moving in and out of localities. Some eastern European countries do: to reside in a city you must get approval. Chairman: In Moscow you can't even get a house without a permit. Teune: Our social and economic problems are distributed poorly across the country. And we use taxation and transfer payments to equalize the problems, which is one alternative. There is another alternative: allowing direct residential political pricing for migration. Chairman: There is a redistributive feature in practically all of the federal grant programs through the federal matching grant. It runs from 10 percent to 90 percent. So revenue sharing isn't the only way to get redistribution. Gilbert: No, and the total package, if you look at the flow of federal grants today, is strongly redistributive in terms of central cities as against the rest of the metropolitan areas. Byrom: Professor Teune has just underlined one of the things I have been trying to get at for two days, a horrible thought. W e all are revolted at the thought of having to conduct ourselves in such a way where the solution to our problem is increased imposition of austerity. There is no way that the democratic system has that kind of discipline. W e will default into an authoritatian society. And we had better recognize that's the road we are on. Benson: But that's not entirely true. The Swiss, who are a democratic society, have regulations about cantons. Free population mobility came about as a reaction to serfdom and feudalism. It wasn't something intrinsic, unless one subscribes to a natural rights philosophy. Byrom: It's what we consider freedom and a whole lot of options available to us as part of those freedoms. Teune: If mobility could be restricted, which is a constitutional question, then local communities could be enormously strengthened. Summers: It's impossible without amending the Constitution. You have Edwards v. California,45 and the Shapiro case 46 where California was trying to keep out Okies. The courts said you couldn't do it. They tried to put limitations on residency for welfare, and that has been declared unconstitutional. You would have to amend the Constitution, or change the Supreme Court. Clusen: Use moral suasion to encourage people not to come, as the governor of Oregon did. Chairman: Let's come back to the New York situation, a good illustration of the problem. Power costs in New Jersey are 50 percent of what they are in Manhattan. You have a great differential in the tax

290

Committee

III

burden as well. T h e more you try to deal with New York's financial situation, the more you cut down services, lay off workers, and add taxes. Union Carbide did a cost-benefit study, and moved to Connecticut. A T & T is going to move to Connecticut. In the last year about 4 0 0 businesses have left New York City. Is this a national problem? Is it a regional problem? O r is it a problem of the state of New York? New York State can't solve it by itself. M a y b e it could enter into a compact with New Jersey and Connecticut, but New Jersey and Connecticut are not going to enter into a compact on that issue. Benson: T h e Swedes, I understand, have a law which prohibits movement of enterprises from one place to another without some social welfare impact consideration. Would that be desirable or democratic? Chairman: You have I2V2 percent unemployment in New York City right now, and it is going to go up. Byrom: If you contemplate passing such a law, you are going to cause the greatest exodus from New York before the law gets passed. Benson: The issue is, what are the consequences of unrestricted migration of individual enterprises and the like in a modern complex society? How does one deal with the consequences of it? Byrom: You are dealing with a fundamental freedom. Benson: Both the Kelly paper and the Green paper* point to how the very concept of fundamental freedom has changed since 1776. Teune: There are two sides to the coin on the open migration rule. For instance, you allow others to change their environment on the basis of individual choice. Either the company leaves, or I will move it next to you, even though you don't like me. From that standpoint, the open migration rule is not necessarily a freedom for all. O n e does not have a choice about one's environment with such a rule. Byrom: But these are fundamental questions. Ruth: W e have to remember general economic factors. Eric Sevareid said in one of his comments, " T h a n k God the American people don't listen to these political scientists, and instead go when and where they want to g o . " You had a great migration from the South into the Northeast because of conditions in the South. The South began to remedy that, and now the migration seems to be going the other way. If people organize in too great concentrations so that the governmental system can't handle it, the natural reallocation might, in the long run, be a better solution than having wizard government planners try to tell people where they can live. I say that, having lived and worked in New York City and having seen the suffering there. It's an ideological question as well. In the long run, people might be better with the natural adjustments than with some government planner telling them which apartment in the South Bronx they are allowed to live in. 'Both issues papers are printed in Volume I.

Shaping of Public Policy

291

Honnold: Would you apply that same line of thought to proposed subsidies to New York City, to make it possible for an economic unit to remain together in a larger concentration than otherwise would be possible? Ruth: I would be against it. I think New York was and is a great and noble social experiment. People working in New York City at the time didn't realize what would happen, although in hindsight the people who would not pay the taxes for those programs are blaming the politicians for the adverse results. They tried free health service, low-cost housing, liberal welfare programs, and open admission to the university. They tried great, noble social experiments, but learned that financially they couldn't carry them off. Teune: Many disruptive migrations have come about as a result of the unanticipated consequences of governmental subsidization of technology, especially for the South. Is that a process that ought to be supported? Ruth: That fits in with what I said earlier. W e are making choices, not knowing what they mean. The post-World W a r II programs of low mortgage rates, mortgage interest deduction, and highways rather than mass transit, contributed to suburban development without people realizing it. We ought to know more when we make those policies. Sundquist: If you decide New York ought to be saved, Hedley Donovan is on the right track on how you go about it. You don't forbid business to leave New York; you subsidize enterprises to locate jobs there. In other words, you decide it's good national policy to take employment where the people are, rather than forcing people to uproot themselves and go where a job is located. This essentially is the way the democratic European countries have gone about it. They have not forbidden the movement of people, but they have exercised strong influence on the geographic distribution of employment opportunities. They have done that first through the imposition of controls which are not much different in concept from our zoning controls. If you want to put a factory in the London metropolitan area, or anywhere in southeast England, you have to demonstrate to the government agency that you can't put your enterprise someplace else. If they decide it can work someplace else, you don't get your permit to put it in the London region. This is the only way to keep the London region from growing completely unmanageable. The imposition of these controls has reduced the population of London, and now it's to the point where maybe they have gone too far. The other method is heavy subsidies—20 or 25 percent of the cost of a plant if you build the plant where the wizards in the national government decide is a good place for it to be. This is done on a basis of analyzing where the unemployed are. It is fairly automatic. If a city like Glasgow is in decline, and the people begin to leave in order to work, then Glasgow becomes eligible for subsidy. This could be done in this country. It's perfectly constitutional, and doesn't control the movement of individuals at all. Teune: It's not necessarily a wise policy to pay for the undesirable

292

Committee III

consequences of Iocational decisions through the taxation of firms and transfer payments. It's another form of taxation to say that you must stay in some place even if you don't want to. Sundquist: You don't say to anybody, " Y o u must s t a y . " If you do stay, you get a subsidy. Teurte: If we are interested in building viable local political communities, then we have to look at the consequences of our present policies and constitutional arrangements for allowing organizations and individuals to move freely. Sundquist: If you carry that to a logical conclusion though, aren't you outlawing such accepted things as zoning which forbids somebody to have an abattoir in a residential neighborhood? Summers: W h y do you have to carry everything to a logical conclusion? Isn't it just a matter of pragmatically deciding to go this far, and not going any further? Donovan: This is not so much a matter of subsidizing as of removing artificial subsidies. If you move out, it is observed that you don't have to pay New York State income tax. I have just been through this, moving 4 0 0 people out of Manhattan. Just the tax difference at the corporate level is staggering. Consider the savings to individuals on the personal income tax. This is a ridiculous differential to be existing just across a city line. Pranger: Earlier, we talked of the desirability of getting some states to raise their levels of education. Migration is a powerful and nationalizing force in society. W h y wouldn't it be just as feasible to let the migration continue and to let institutions float? As people move in from one community to another, let the new people have some juxtaposition with the older local institutions. W h y wouldn't it be possible to provide incentives for more spontaneous forms of local community to develop unhindered by the more established community—in other words, to even have multiple school districts, schools created by these new immigrants for their children's needs, as contrasted with the other schools? It perhaps is an opportunity for creating greater freedom of political expression, rather than going in a more restrictive direction. Unrestrained Migration Benson: The issue is what the consequences are of unrestrained migration in the complex and increasingly interdependent world. Individuals simply cannot be allowed to operate as though everybody has a God-given right to do whatever he or she wants to do. T h e question is what kinds of constraints will increase human welfare. There is an assumption that constraints are intrinsically undemocratic and bad. If we examine how that freedom of movement came about, it may very well have outlived its purpose and use. You would hardly regard the Swedes as an undemocratic society. But Sweden is increasing these kinds of restraints on migrations of population or industry. Sundquist: I am on your side.

Shaping of Public Policy

293

Pranger: The Swiss and the Swedes are not models for a nation of 200 million people on the move. Sundquist: No. They concluded that it was bad for the country as a whole that the population all piled up in the big cities, drained out of most of the country, and centered in Paris and London and Stockholm. That's a perfectly logical conclusion for a society to reach: what should the internal geographic distribution of the people be? Pranger: But they have one capital city. In our society, people move all over the place. Honnold: Before we assume that the world is really closing in, the greatest step in political economy in recent years has been the establishment of the European Economic Community. The central fact of that is the free flow, not only of capital, but also of workers; workers in the Common Market can go where they choose. Byrom: Now, wait a minute. You have an imported labor force in Germany which is controlled by the German government. Honnold: Are you speaking of the Yugoslavs and Spaniards? Byrom: No, I am talking about the Turks and Italians. Honnold: Turks are subject to exclusion, but not Italians. Byrom: I am talking about their coming into Germany. Benson: If one looks at the consequences of it, one sees the same types of intense cultural conflict, racism, ethnic hatreds, religious hatreds, that marred American history during the 19th and 20th centuries. One sees this all throughout Western Europe now. And one asks, what are the consequences of unrestrained migration? Is racism in England a desirable thing? Are the Nottingham riots particularly desirable? Are the bidonvilles outside of Paris desirable? What are the consequences for human life as a result of unrestrained migration? That is an issue one cannot dodge by saying that individuals should have the right to move wherever they like. I wish I didn't have to observe traffic lights when I drive in town. But I know that in the long run it's for my own and everyone else's good. The question is, what kinds of restrictions are really undemocratic restrictions? Are all kinds of plans and all kinds of restrictions undemocratic? Stark: I doubt that would sell. Summers: No, I think that really misconceives how the problem arises. It arises with the Governor of Oregon saying, "You are not welcome" or communities saying, " W e will zone and give building permits in such a way as to allow planned expansion." If you set up a zoning system in a community and say you will allow only a certain number of houses to be built in a year's period, you have done the same thing. Stark: Well, you are talking about zoning and positive measures of that kind, which we have carried out in many different ways. Teune: With regard to individual migration, we use a housing pricing system to create barriers. That's done explicitly and is well understood by local community managers. Or it's done as a result of an accumulation of decisions.

294

Committee III

W h a t has occurred is that, many incentives to move are not a result of freedom of choice or preferences. Rather, they are a result of accumulated political decisions regarding taxes, land pricing, and utility costs. W h y not consider whether one can devise stronger political devices? It may strengthen the viability of local communities and politics. Chairman: We still return to the question of what level of government is responsible for a metropolitan region like New York. There is a basic conflict here. T h e other day when Mayor Beame was testifying, Senator Proxmire said, " W h y don't you take off rent controls and get the housing industry going again?" The mayor said, " I don't really want to take them off. That's my policy." Well, he is mayor of New York. He wasn't about to let the federal government tell him to remove rent controls. But is there a national interest in the viability of the New York City region? Goldwasser: Is there or should there be? Chairman: I say, is there? All right, you can ask, should there be? If you listen to bankers around the country, they say we can't let New York go down the drain. But I don't see any mechanism today that can view this as a regional problem. The state can't deal with it; the city can't deal with it; so where else is the buck going to stop except in Washington? Summers: Isn't the problem that the revenue needs of New York are simply out of line with the available tax base for those needs? If one thinks in terms of overall equity, can we create something less than a national financing entity? Chairman: You have a different kind of a problem: you have a metropolitan area wholly within the confines of a single state, but many of the city workers live out of state. Gilbert: You can say it's the state's responsibility. Chairman: In Detroit you have the city workers at least living within the confines of the same state, the area of responsibility. Donovan: You could ask if it is right for the states of Mississippi or Arkansas to advertise, in effect, " N o taxes for ten years if you come and move your plant here." That's part of our problem. Should we have such a free market among governments within the United States, with thousands of taxing bodies all free to strike their own deal with any itchy company? Chairman: The textile mills of New England all moved South because of the T V A and power rates. Eastburn: I am having a lot of problems with this discussion. The point was made earlier about the unreality of the federal government coming to grips with the kind of restrictions or removal of subsidies necessary to make this possible. Benson: But it's astonishing how what seems to be unreal in American political history turns out to be real two years later. The strength of the American political system has been its capacity for ignoring the Constitution and for making necessary changes.

Shaping of Public Policy

295

Sundquist: When Nixon's proposal to restore the investment credit was before the Senate in 1971, Senator Pearson of Kansas and Senator Ribicoff of Connecticut put in an amendment47 which provided that if the standard rate were 7 percent for the country, the rate in depressed areas, including the urban and rural depressed areas, would be 10 percent. It passed the Senate by a margin of sixty to nineteen. So it's entirely feasible for the federal government to enact a crude measure which would have a substantial effect on the distribution of employment opportunity and the distribution of people. Eastburn: If it did get implemented, it would be weighed down by red tape. Sundquist: No. There wouldn't be any red tape; it would be done through the tax system. People take their tax credit as they fill out their return. Except for the auditors, nobody has to approve it. Byrom: Part of this country's difficulty is a result of the so-called free enterprise system which has never been in existence in my working career. It's been a private system with a high degree of government intervention. One intervention continually requires another intervention to the point where we are just creating chaos. For example, highly marbleized beef is a result of government intervention that created an industry that didn't deserve to exist. Now we are trying to figure out what to do about it, and it was basically due to government intervention dealing with the problem of perceived grain surplus. Chairman: I suggest we go around the table and bring up particular points or topics we haven't yet covered. They don't have to be related to improving the legislative process. Gilbert: I would say first that the planning problem, whatever planning turns out to mean, is important—how it is made consistent with the machinery and values of the democratic society. We should talk about the presidency, the executive branch, in particular its inertial pluralism, and our expectations of presidential management. One tends to think about the shaping of policy as a political and public matter, when it is very much a bureaucratic and administrative matter. The President and the Bureaucracy Clusen: We have to give some passing reference to the role of the President and the executive branch in the shaping of public policy and to the public role, if there is one, in shaping policy on the part of the executive branch. We can't deal with the separation of powers without talking about the War Powers Act and the trends which exist as to where the responsibility lies within the executive branch and in the legislative branch. Ruth: I have been trying to think through who in our society can still take the initiative, and I come down to just the President. Having been in local government, and to some extent in state and federal government, it seems to me that governors and mayors are busy consolidating and holding the line as to whom to cut. They are not able to 296

Committee

III

t a k e any initiative. W e talked about Congress's innate inertia because of diversity and the problem of how the President makes policy and administers. That is the most important. W e haven't discussed the Domestic Council's powerlessness. I've never seen any justification for that body. Cabinet secretaries run huge departments; why not let them run them? T h e old saying that the President can't control the bureaucracy is nonsense. If any administrator wants to control the bureaucracy and has the courage, he can. W e are locked in by employment considerations, and where to put federal projects. I would like to discuss a little more how the President can run the government. Goldwasser: I have been concerned about the same thing. I am not as confident as Mr. Ruth that the President can control the bureaucracy. Ruth: I would just add that Governor Brown, whether he is doing a good or bad job, shows you can do something about it, if only by attrition, across-the-board cuts, or abolishing agencies. Gilbert: I doubt that the President can do it. Goldwasser: It does disturb me that the system seems to have such tremendous inertia, that it gets more and more difficult to act firmly. T h e energy crisis is one example. W e are so busy looking for the best solution that we are doing nothing. Byrom: I wish we could somehow or other get the word "planning" out of our vocabulary. It implies control, and immediately frightens people. W e are talking about the analysis of the probable implications of the alternatives available to us. It doesn't require precise forecasts. If we can get people thinking more realistically, then the only argument is with those who feel there are people ready to misuse the information. From my experience as chairman of an advisory council to the President, there is no such notion that the bureaucracy is controllable. One reason the government ran during the Watergate period was because of the 160 or 170 bureau chiefs who have their own committees, constituencies and lobbies. They operated fairly independently on the mandate they feel comes directly from their particular legislative authority. I know, for example, that the President charged my committee with a specific assignment. Yet I find that State, Treasury, the Federal Reserve, and O M B are doing everything they possibly can to subvert the actions the President asked us to undertake. One of the tricks these days is to issue a draft report which never gets published, and to broadcast it generally through the government. O M B does this frequently. T h e draft report never issues, but it's understood as policy, and everybody proceeds to operate on the basis of that draft report. You can't get at it because if you are outside of the government, you have no right to this draft report. Teune: O n e of the problems is big government, size, budget, regulations, complexity. Another issue we don't analyze well is the extent

Shaping of Public Policy

297

to which government is involved in various aspects of social life. In the last twenty years, this extension of government has been fairly unlimited, largely stimulated by the courts. This has prompted two kinds of criticism of the American political system by observers abroad. One is that the problem with the American political system is basically that we fail to take the final step to aggregate the primary forms of capital accumulation for investment and control through a major planning agency or nationalization of certain industries. The criticism is that we ought to become more state controlled and be honest about it instead of trying to have a private-plus-government system. The second criticism is that with all of our interdependence and all of the effective mechanisms that we have in society, our government is involved in too many things. There are all kinds of other alternative means for self-control. We ought to get government out of postoffice subsidies, children's rights and things of that kind. Byrom: A point of clarification. Do I understand, Professor, that you are saying we might as well face up to the fact that the private enterprise system is not an appropriate way in today's world to be operating the primary means of production of the nation? Teune: Well, there are two criticisms. One is that we don't have a state system, and we ought to go to a state-controlled system. Byrom: You are recommending that? Teune: No, I say that that is an issue we can address. The other issue we don't handle well is not simply the size, scope and budget of government, but rather the extent of the government. There is a word for it in European parlance: to "destate" the system, to get the state out of activities. You could have a government of the same size but not have it involved with the management of families. Byrom: Again, for clarification, do I understand you not to be proposing one position or the other, but saying that the nation should decide what it wants to do about these things? Teune: "The politicalization of American life" is a clearer way of stating the issue. Chairman: Another way of expressing it would be: how can you accomplish the goals of government without the government getting too much involved in the day-to-day life of families, individuals and local groups? Teune: Related to that is this issue of planning and control which requires information. Information is costly. Most of us prefer not to have information about ourselves in the public domain. Chairman: W e are going to be dealing with privacy, but your point is broader than that. It does relate to the planning question. Byrom: Yes. Independent Agencies Schlossberg: Does someone have an idea how we can improve public accountability and responsibility by those who run the agencies, the 5,000 people appointed by the President who set our airplane

298

Committee III

rates, tell our children what to watch on television, set our train rates, and decide what we pay for gas? This quasi-government branch is more important to the ordinary citizen in many ways than either the Congress or the Cabinet. Other than expressing a general philosophy by voting for one candidate or the other, the citizen has no control. Couldn't we have better standards for Senate confirmation, or recall of some of these people, or public reports? I am not opposed to agency government, but isn't there some way to make it more accountable? McGowan: There was a recent proposal addressed to this subject, Lloyd Cutler's piece in the Yale Law Journal about presidential veto of independent agencies. 48 After all, the President is elected by all of the people, and it is argued that he should not have to stand by and see an independent agency do something which he thinks conflicts with the public need. Ruth: That means that the Washington law firms would have to lobby only one man. McGowan: The Washington law firms would have to lobby only one man instead of seven. But as Mr. Schlossberg says, there are a lot of decisions affecting the people being arrived at in a fairly undemocratic way by judicial review. Schlossberg: About all the people get is a result. Byrom: We are dealing with real zealots who are dedicated and sincere. McGowan: That's not the only problem. It's over thirty-five years since the Procedure Act 49 and the beginning of the independent commission. We have never created a tradition of excellence in those jobs. They are a miscellaneous group. They don't stay very long, and politics often enters into their selection. There are conspicuous exceptions, of course, but we have never insisted upon standards of selection commensurate with the importance of the jobs. I doubt that the presidential veto is the way to solve it. Schlossberg: W e could talk about standards of confirmation, or codes, and methods of accountability or responsibility. I am not sure I go for the presidential veto. McGowan: I am not sure that I go for it. It's just an effort to address the problem. Chairman: Secretary Lynn is saying that the President has no control over the regulatory agencies because Congress doesn't want him to have any control. Therefore, it's Congress's worry. He has some support for that from people like Senator Metcalf, who doesn't want the budgets of these commissions to go through the President, but to be submitted directly to Congress on grounds that they are legislative bodies. Schlossberg: They are nonelected legislative bodies; that's the point. Summers: There is a rather common problem in terms of any shaping of policy from any direction, and that is the pervasive problem of access to relevant information. It shows up in its gross form in executive privilege, but it shows up in other decisions made without ex-

Shaping of Public Policy

299

planation or even notice. How does one get better access to information, not only in terms of litigation, but as a matter of course? Second, we have a widely distributed veto power which has a paralyzing tendency. Maybe it's no worse now than it ever was; maybe that's endemic in our system and is no special problem. But what's the source of this veto power, and is there any way of alleviating it? Eastburn: I would like to see the record of this committee's discussions indicate a concern about increasing centralization, and what this does to powers down the line. I read an interesting comment that the result of centralization is apoplexy at the center and anemia at the extremities. Frug: People talk about the President's not wanting to control the independent agencies. When the current Secretary of Health, Education and Welfare was appointed, he seemed to make a point of saying that it was not his job to run that agency, but rather to be some sort of ombudsman. You wonder, if that's true, whether it's healthy to have the government have a life of its own. You also wonder whether Henry Ruth's example of Governor Brown is an example of someone controlling the bureaucracy by cutting back, or simply not controlling the bureaucracy and therefore cutting back. Byrom: I am a member of the Federal Hospital Council 50 which has to do with regulations dealing with Hill-Burton situations. The regulations were in a state of change, but when we had a meeting about a year ago, the requirement was that the Secretary could not issue a regulation which was not approved by our advisory council. He didn't have to do what we told him to do, but he couldn't do something we didn't approve. We had quite an argument over the question of the responsibilities towards free care, for instance. After considerable discussion, the council by unanimous vote took a position against one of the Secretary's intended regulations. They proceeded to tell us that the law was being changed, and within six months or so they wouldn't need our approval. They just wanted to warn us in advance that probably no action would be taken until the law was changed, and they would then do what we had unanimously disapproved. I think this is rather typical of the arrogance of bureaucratic agencies. Schlossberg: I say they are arrogant; I am just looking for a better method of control. Shouldn't we consider the question of civil servants and policymakers, and whether this goal of a nonpoliticized civil service, which is unreachable and untouchable, really provides the most efficient or best kind of government? Does it not slow down the possibility of constructive change? Has the career service, which is never changed, no matter how the so-called policy-makers on the top may change, had a deadening effect on policy? Summers: Apart from the arrogance of some civil servants, it seems they are characterized as much by a kind of timid blandness. Survival depends on never doing anything unusual. Chairman: The ban on political activity by civil servants by the

300

Committee

III

Hatch Act is relevant to this problem. Other points have been made about the role of the executive in policy-making. W e have had the civil service statute on the books now for almost 100 years; we have had all kinds of investigations of the Civil Service Commission. A current concern is our inability to prevent politicization of the career service. Other topics are: the role of the executive in policy-making; the ability of the executive to control the executive branch of government; the so-called nonresponsiveness of the executive branch; how we can do a better job of looking to the future without using the word "planning"; the expanding role of government; the burden, the interference, and the inability of government to act speedily. State Governments Kirkpatrick: State legislatures are very important today. Whatever we may think of them, state governments are more important today than ever before. T h e y relate to more aspects of people's lives and provide more services. Yet, if we are concerned about the problems of democratic government and accountability and representativeness, what we want is improvement of the state legislatures which are deficient in many ways. T h e accountability of state regulatory agencies and the state civil service is virtually nil. Chairman: Do you think if the state governments had done their job better, we wouldn't have moved to Washington on many of these problems? Kirkpatrick: I find a fairly widespread feeling in the electorate that things could be removed from Washington and given back to the state and local communities. If we do that, we have to improve the institutions at that level because they simply are not prepared for such an undertaking. Chairman: Most of us see the governors and mayors as needing more funding. McCowan: W h e n I first went into state government, I knew very little about it, and had a low opinion of it. But I came out feeling there were many aspects of our public life that could be handled by the states if they had the kind of leadership, facilities and resources that are at the federal level. For instance, things like the salaries of state legislators—most of them don't even have an office where they can sit down and write on a piece of paper. Ten or twelve years ago I was shocked to learn of the high turnover rate of first-term governors. This stems from the fact that when the governors are first elected, the good men raise taxes where they need to be raised to get things going that ought to be going. The mortality rate at the end of the first term for these good governors has been distressingly high. In the states in which I served I found no continuity. You have a distinguished governor for a couple of years, and he is out; you have a couple of interludes of mediocrity, but no continuity. Schlossberg: How do you solve that problem unless you make state

Shaping of Public Policy

301

government more exciting and more remunerative and give it more status in our society? You are never going to attract the right people. Byrom: There is another aspect to this: the inability of the voluntary system to do many things which in failing creates a vacuum that invites governmental intervention. The planning of regional health care, the hospital system, was very much in the hands of the voluntary system. If it had imposed proper discipline on itself, which it had the ability to do, but refused, it wouldn't have invited this whole mess that we are going to end up with in the health planning area. Kirkpatrick: There is no way of holding the voluntary agencies accountable. Chairman: We have been talking about career people being unresponsive. How can you get a good individual to come in cold to a position like an assistant secretary, and be out of the post in eighteen months? He hardly knows his way around the building before he is gone. How can you reconcile this dilemma of getting people who are capable, knowledgeable, and who know the technical problems, to become involved in these programs, and still have a political system that runs these people through on a short-cycle basis? Federal Regional Councils One of the things this administration did was to establish regional councils of federal agencies. The Departments of Labor, HEW, HUD and Transportation were represented—those with funds to dispense— and the councils were to work with state and local governments. You could get decisions in Philadelphia rather than coming to Washington. This hasn't worked because the agencies are fearful of delegating that much authority to their regional managers. Part of that comes back to the situation when a senator asks the status of a certain application, he wants the answer right away. They want that kind of an answer available in Washington. The scheme needs some refinement. Sundquist: With regard to the regional councils, the only thing that gives me pause is that the President would appoint the wrong people to those jobs. Chairman: We recommended people from OMB, but the executive branch was reluctant to make this more than just a consolidation-type arrangement for fear that somebody would say that the focus was changing from cabinet officers to the lower level officers in the organization. Teune: The discussion seems to dwell on how to evolve from one level of government to another. It is not so much a question of which of these levels performs best. Local government has been dismantled in the last few decades, and there have been attempts to reform it, for example, by giving professional staff to the committees in state legislatures. These efforts seem to be unsuccessful. Canada has managed to establish in each metropolitan area a reasonably effective government over the past few decades. We have not been able to do that anywhere except when political scientists fantasize about Dade County, Florida. We tried desperately to do so

302

Committee III

t h r o u g h o u t the country f r o m 1948 to 1952. W e attempted to create metropolitan governments, commissioning a b o u t 160 reports directed to municipal governments. N o n e was successful, except in minor f o r m . T h e f r a m e r s of the Constitution w a n t e d a system that would not be effective, and to that extent they succeeded. T h e y have bequeathed to us a system that requires hard work to make improvements here and there. W h y w a s C a n a d a able to make changes that we were not able to make? Goldwasser: It may have to do with the character of the industrial situation. Teune: It's hard to isolate a factor. It may also be the character of the population. Byrom: Indianapolis has moved toward metropolitan government. In Pittsburgh we have 129 political organizations. Chairman: T h e r e are 800 in Philadelphia. Benson: You know, I d o n ' t w a n t to seem too rhetorical, b u t ancestor worship and a kind of fetishism are involved here in treating the Constitution as something sacred and the epitome of political science. It was dashed off in a terrible h u r r y , and its seems extraordinarily illogical to be bound by a document which is so extraordinarily inadequate. I don't think it's possible to amend or change it radically. T h e issue is what, in fact, can be done to pay lip service to the Constitution, disregard it, and operate in ways that are absolutely necessary and desirable. Gilbert: A considerable part of the regional metropolitan program could be resolved at the state level. It wouldn't handle your interstate problem, but it would handle the rest, and could be implemented as state business. Chairman: A b o u t twenty years ago, the first legislation that provided for federal aid for natural disaster was enacted. It was a limited concept. T o d a y disaster relief is in the h u n d r e d s of millions of dollars for snowstorms, tornadoes and such. T h e federal g o v e r n m e n t awards grants that do not involve just life and property, but permit restoration of things like high school buildings. It used to be the responsibility of state and local governments to deal with those disasters. Government Regulations I was appointed to something called the "Federal Paperwork C o m mission," 5 1 modeled a f t e r the Hoover Commission, which has been holding hearings around the country. W e are learning that the paper itself really is not bothering the people; it's the regulations, the burden of government, inconsistencies in actions, failure and inability to get decisions. It has really been an outpouring of concerns a b o u t big government as it impacts on local people. It has been both business people and labor groups w h o have been most vocal. T h e r e are some horrible stories, b u t the area that has come through m o s t sharply is education, particularly higher education. We have decided to continue this process of hearings around the

Shaping of Public Policy

303

country. W e are getting a lot out of it, not only in specific terms, but a general impression about the impact of government that was unanticipated as far as the commission was concerned. Eastburn: Do you have a feeling that the kinds of complaints you are getting suggest that these regulations could be issued at a lower level of government? Or is it simply the process, and the way it is done? Chairman: It's too early to be certain about our conclusions. One thing is clear: the government is issuing regulations, blanketing the country without enough discretion at the state, regional and local levels to modify them to meet local circumstances. There is not enough consideration given to impact. W e are considering requiring some kind of a paperwork impact statement, a burden versus benefit test. Clusen: Are you going to issue a report? Chairman: Yes. In addition, the President will issue instructions to set up task forces in each of the major agencies. Our commission is going to meet with the regulatory commission chairmen to set in motion an action program now. Eastburn: This is interesting from another point of view. The Federal Reserve Bank, as you know, has been issuing regulations pursuant to legislation in such matters as equal opportunity in credit. It has created tremendous flak among commercial bankers. When you ask why, you find that the bankers didn't take the opportunity to give input to the writing of the regulation. This illustrates another defect of the regulation process. You don't get input from the people who normally are affected. Sundquist: Insofar as this is a constitutional question, part of it grows out of the separation of powers. It is one more adverse effect of that structure, because the people who write the laws have no responsibility for their administration. The amount of attention given on Capitol Hill to the administrative workability of a particular statute is practically nil. Then the executive branch says, "It won't work," and there is bureaucratic foot dragging. Chairman: At one of our hearings in Washington, three authors of the Employee Retirement Income Security Act (ERISA) 5 2 appeared. They were taking none of the responsibility, but the facts are that they rammed this legislation through against the advice of the Labor Department and the IRS, and gave them very little time to prepare for it. Now they are criticizing the irresponsible bureaucrats who took the law, distorted it, and are now reacting adversely to it. Byrom: The truth of it is that the law didn't say anything. It had to be written by the agency which was given the responsibility. Lawyers tore their hair out looking at it. Chairman: It was a poor law. So there has to be some way you can get proper feedback on impact before things get so locked in that they can't be changed. Byrom: Let's realize that there was a great deal of feedback to the

304

Committee

III

legislators on ERISA. W e were disturbed about that legislation before it was ever passed. Chairman: W e talked the other day about whether the Congress ought to have a one-house veto or a committee veto. What could have been done in that case before the regulations went into effect? There could have been consultation, not only with the people affected in the industry and labor groups, but with the people who wrote the law. There has to be some better process or interaction. National Economic Policy Stark: W e have talked about the growing responsibility and assertiveness of the Congress vis-a-vis the President. My former colleague, Arthur Miller, used to talk about Congress bleeding from self-inflicted wounds through delegating away its powers. That trend is certainly being reversed. Mrs. Clusen mentioned the War Powers Act. That is historic in the sense that this trend probably began with Senator Fulbright's reversal on the Tonkin Gulf Resolution 53 episode, for which he deserves some credit. The Budget Control Act is a basic initiative. It is not only important in terms of the congressional function, but could well provide a basis for a more constructive interrelationship between the Congress and the executive. As most of you know, it provides a new mechanism for limiting spending, determining the overall spending totals, and, more important, for relating revenues to spending. I remember Senator Herman Talmadge meeting with Lyndon Johnson's Business Advisory Council at the time that Vietnam spending, superimposed on a full-employment economy, was causing some trouble. One of the advisory councilors said to the committee, " W e are worried about the deficit. Aren't you fellows concerned?" Talmadge, an articulate man, said, "You know, when we talk about the spending patterns, we get individual bills at different times, and none of us thinks much about the total. Revenues are considered completely separately, and we never see them in their entirety." A pall settled over the group. It seems to me we now have some answer to that rather basic problem. The budget act can permit Congress to improve the quality of spending by considering for the first time the whole pattern of $400 billion in a cohesive and coherent way. It's perhaps natural that this would lead to a next initiative in the form of a balanced growth act. The title "Full Employment and Balanced Growth Act of 1975" derives from the concern Mr. Byrom voices about our basic problem of resource allocation. The act attempts for the first time to deal with resource allocation, growing unemployment. The purpose is to provide an open process under which annual economic goals are proposed, reviewed, and established, and provide for the development of a long-range plan for full employment and balanced growth. It requires the President, through the Council of Economic Advisors,

Shaping of Public Policy

305

to produce each year a balanced growth long-range plan, recommendations for long-term goals for full employment, production, and purchasing power, and proposals for a system of priorities and programs to achieve these goals. More specifically, it sets forth a goal of 3 percent adult unemployment to be attained as promptly as possible, but within not more than four years. It's no secret that this was the occasion of considerable debate. There is another provision which requires that the President, through the council, set forth a program for improving the efficiency and economy of the federal government, including a review of existing rules and regulations to determine if they still serve a purpose. It further requires an annual evaluation of 20 percent of the dollar volume of existing federal programs. There again, there has been considerable discussion of how onerous that burden may be. There is further reference to proper use of fiscal and monetary policies. W e have been employing those for many years. But it does require that the Federal Reserve Board make an independent report to the President and to Congress, identifying the extent to which the board will support the goals recommended in the President's report. If they cannot support such goals, or deviate from them, they are required to provide a statement justifying their action. There are further provisions dealing, not only with the more obvious aspects of inflation, but analyzing problems in the supply of goods, services, labor, tight capital markets, short supply of materials, and recommendations to improve productivity in the private sector, as well as recommendations for administrative and legislative action which might help deal with inflation. And the act sets up an advisory committee. One thing that would interest you is the provision that long-range plans, including any employment or regional development plans, be coordinated with the state and local governments and with the private sector to the greatest possible extent. Some of us felt in contributing to this legislation that we ought to have specific provisions for regional hearings. We went to the point of urging that there be a ninety-day provision for regional hearings, at least the opportunity for mayors and governors to contribute their views before the proposals were processed in the Congress. The feasibility of this suggestion is being debated. As to congressional review, the bill would provide that the Joint Economic Committee review the long-range goals as set in the act and report to the Congress by resolution, permitting the Congress to work its will more or less as is done now with the budget ceiling. There is further provision for the long-range goals program to be reviewed by the appropriate committees of the Congress, including the budget committees and the legislative committees. It's interesting to see the effort to bring together the executive and the legislature in a constructive and comprehensive long-range development of a national economic policy. The lack of coordination in the

306

Committee III

massive federal economic intervention has resulted in little effort to consider the impact of regulatory agencies on full employment or resource use. The extensive credit programs of the government are done often with specific and probably worthy beneficiaries in mind, but without reference to their effects on the economy or on resource use. For that reason, you can make a good case for the increasing danger to our economic destiny through failure to coordinate various efforts to deal with the economy. One also sees a good deal of evidence of contradictory effect where one policy may work against the other. For example, through extensive credit subsidy we may shorten credit for other purposes. Byrom: I hope this isn't more of the same where, by a series of minute interventions, we keep playing with the system. We talk about capital formation. Whether we intended to or not, we have biased the system towards consumption for twenty-odd years. Then we are surprised that we have inflation. Rightly or wrongly, I was given credit for being the one who got the administration to go for the Asset Depreciation Range or A D R a few years ago. The first thing I knew, an organization I had contributed to filed a class action suit claiming that the A D R imposition by the government was an unconstitutional action. Sundquist: What is A D R ? Byrom: It's a means by which you can take more depreciation than is otherwise allowed under the IRS rulings. The truth is that if we would just relax the depreciation rules, we would defer the revenues of the government for a year or two, but quickly accomplish one of two things: either a significant improvement in profits, which would show up in tax revenues, or a reduction in prices, which would benefit society generally. Depreciation is simple and relatively nonpolitical. Outside of the labor movement nobody really understands what depreciation is. It probably could do much to improve capital formation. This would start to provide for balanced growth and increase the production base, which would create material abundance, and allow us to improve the quality of life. It's so simple nothing happens on it. Instead of that w e come out with a whole new law on how we are going to try to improve the economic balance in our society. My point is, part of the trouble is that we continue to intervene, intervene, and intervene. Stark: The best response to your statement is an answer I got from Gunnar Myrdal, the Swedish economist. He said, " Y o u Americans are so proud of the fact that you have no economic planning. We in Sweden have economic planning, but it is a democratic one which is not compulsory. T h e result is that you suffer from all kinds of interventions. We have less." Chairman: Because they have done it indirectly through the tax system. Byrom: That's right.

Shaping of Public Policy

307

Chairman: They have probably the most elaborate system for capital formation, even though they are considered a socialist-type economy. Schlossberg: Ninety percent of industry in Sweden is free enterprise. Stark: That's right. Byrom: With a significant ability to make free choices, but they are heavily taxed. Schlossberg: The income tax is about 70 percent. Chairman: If you buy a security there and hold it for ten years, you pay no capital gains tax at all. It's a sliding scale, so you have a great incentive to hold it. That is one way they have been able to get capital formation. Stark: By having a plan, a target, they have open discussion of it and the alternatives. Here, it's all done sub rosa. The Ways and Means Committee meets, with the lobbyists hovering around outside. Eastburn: Isn't the real issue not whether we should have planning, but how this should be divided among the branches of government? If the public wants planning, a perfectly legitimate thing for Congress to do is require the executive branch to specify its goals and objectives. Then Congress could review these goals and objectives, and track their progress. Chairman: W e have the President's economic report, on which the Joint Economic Committee holds hearings. W e have the annual budget document, which under the new congressional budget act is required to project government programs at least five years in advance. There is a lot of interest in the so-called social progress report, or economic report, but the question is what the Congress does with the information. Byrom: What do you do about a situation where the government, by its tax policy with regard to depreciation, is in effect expropriating a piece of every capital enterprise each year? Eastburn: I would rather know what the goals and objectives of the government are. If they are spelled out, I would know where all these things fit as a national plan. Byrom: I will buy that. Schlossberg: First, you must gather data. But just to gather it and put it in a data bank or computer and forget about it is no good. The Office of Emergency Planning had a huge data bank, but nobody used it. It must be given to policy-makers to determine possibilities and alternatives. You constantly change goals in the light of the real world. You offer alternatives to the people. As we go along, we want to improve the participation of the public. W e want to educate the public. The public has to be interested in our destiny, economic, social, as well as political. The planning process is not forecasting. In forecasting, the economists have shown about as much ability as the political scientists.

308

Committee

III

Byrom: Let's be sure we understand. I believe in input-outputs, but it's no good if the data you are getting is 1 9 6 7 data. Schlossberg: That's why you have to spend money to accumulate the proper data.

Government Planning Sundquist: How in our constitutional system can you possibly have planning? Intellectually, I support the idea, but I despair of accomplishing planning in our system where powers are so fragmented. T h e executive can come up with a plan. It can have within it forty pieces of legislation which will go to eighty congressional committees, any one of which may vitiate the whole idea. A plan has to be an articulated unit to amount to anything. There is no way for Capitol Hill to orchestrate anything now except through the budget. O n e of the strengths of Congress is that powers are dispersed. As soon as you start to centralize them, the question is: whom do you centralize them in, and whom does he represent? You take a lot of democracy out of the system. You would have to have in Congress something equivalent to the office of the President. There is no office of the Congress as a whole. Chairman: I hope that the Congress has now committed itself to review the budget and budget priorities the same way the President does. It will give us a better basis for setting priorities. You can link that with the requirement that it make decisions on taxes and unemployment, tied into the employment act. Sundquist: That much you can accomplish, but you wouldn't be dealing with capital formation. Schlossberg: Sure you would be dealing with capital formation. Byrom: T h a t ' s what bothers me. Schlossberg: But you wouldn't be dealing just with the national government, but with regional planners, state planners, and you would look for a cohesive way to handle these things. Byrom: I knew I was throwing in something extraneous, but what about depreciation? This country for two years has almost agreed that we need to do something about capital formation. W h e n Common Cause involves itself in a class action, a constitutional argument over depreciation, how do you ever get anything done? Chairman: Your point in reference to Myrdal seems very appropriate here. T h e confusion, partly, is that we identified planning and intervention being synonymous, and they don't have to be. Let me give you an illustration: we did a study on coping with commodity shortages, 5 4 growing out of what everybody knows is increasing reliance on foreign sources of raw materials. W e found fortytwo different government agencies collecting data on raw materials. No one had put that together at a single point anywhere in the government. W e suggested that all the information on raw materials be given to someone with the responsibility to develop long-term options

Shaping of Public Policy

309

of how to deal with the situation, since in practically all raw materials we are no longer a surplus country. We carefully avoided the word "planning." Some accused us of advocating more government control, more government planning. Subsequently, the Congress established the Commission on Supplies and Shortages 55 with Don Rice, head of Rand, as chairman. It's a study group that's supposed to make a report at the end of the year. We have the case of the grain problem with Russia. Earl Butz still argues today that the government ought to keep out of this entirely because it represents intervention in the private sector. That is a weak argument. The executive doesn't take the leadership. Eastburn: That's a good point. Planning is an executive responsibility. Congress's role is not to plan, but to prod the executive and to review. It's a good distribution of powers. Teune: Why is it that our system, in comparison to many other systems, cannot plan? Even if we could come up with a plan, I doubt if we could implement it. How can a system decide basic issues such as unemployment, a target for growth, and a target for capital formation when it is engaged in continuously changing leadership, and addressing basic value questions underlying any plan? For instance, the question of equality in this country is a basic issue. Does that mean that everyone should have equality of position? We can't address that kind of problem. Can we come to a decision about local communities in this country? What is their shape? Do we want to redistribute the population across the country in terms of smaller communities? If you can't decide about those things, then how meaningful is it to talk about unemployment targets or growth targets? Planning has to take place within some general parameters. Gilbert: You are saying that if we are the principal democratic nation that can't plan, largely because of the nature of the political system, what is implicit is a reasonably powerful legislative body. I can't think of another modern Western democratic nation having a legislative body with real autonomy. That entails serious problems. But I suspect it also entails serious gains in the maintenance of the democratic society. We haven't sorted out what we would mean by "planning." That is a problem something like indicative planning, essentially information-gathering. I don't see why that's not feasible within a system of separation of powers. It is more difficult, no doubt, than it is in Britain, which suffers from excessive intervention and too much planning. It isn't clear to me why planning isn't a function for executive leadership and legislative response. The congressional budget process is analogous to the planning process. I guess I am less despondent about our ability to do a planning job which is selective and indicative within a system of separated powers. Schlossberg: It does require some values. Byrom: We talk about planning as though we could do it if we wanted to. The fact of the matter is that we do not have adequate

310

Committee

III

data retrieval or adequate data collation. So talk about planning is sheer nonsense for at least a ten-year period. W h a t has to be initiated is some kind of opportunity to find out what is going on. Chairman: If you want exhibit A : energy. Schlossberg: W e don't even have an inventory of resources. Byrom: Let me tell you how antiquated our retrieval system is. W e have an industrialization reorganization bill, 5 6 introduced by Senator Hart of Michigan, which is a follow-up to the Kefauver studies in 1958. It purportedly uses an analysis of the concentration in the marketplace. It uses an SIC Code, which is the census of manufacturers and was never intended to measure concentration or competition in the marketplace. In 1958 I testified before the Kefauver subcommittee in this regard and demonstrated that the information they had about the particular industry I was testifying on was completely nonvalid. Our major competitor didn't even show up in the same four-digit code. There was no way you could relate the data. They admitted it. But they went on and said, " D o n ' t worry about it because it doesn't matter whether the data is valuable or not; the important thing is to get the concern before the public." W e now have a bill that says we will fragment industry if the data show there is a concentration in the industry which causes potential abuse of power. Now, all I am saying is that their excuse for using that data is that there is no other mechanical means of collecting what they need. T h e fact that it is a nonuseful piece of information doesn't make any difference to them at all. T h e fact is that somebody ought to collect data, and this is the only way they can do it. Sundquist: T h a t doesn't seem to be a valid argument against the principle of planning, though. W h e n we enacted the employment act, our economic statistics weren't perfect. Byrom: But are you going to use the SIC code as your means of determining planning? If you are, I am going to fight you all the way down the line, because it's a nonvalid set of statistics. Sundquist: I assume that if it's nonvalid you move to valid statistics. Byrom: Except that there is no means of getting the valid statistics. Sundquist: Ever? Byrom: Not at the present time. Let's stop talking about planning and start talking about how we design a data retrieval system which has some value. Schlossberg: That's the first step to planning. Goldwasser: W e are talking too much about data as if it's a wellestablished truth we can agree on. In fact, we know too well that statistics can do whatever you want them to do. T h e best test is to make it possible to plan and to implement planning with some kind of rational time-constant associated with it. O n e of our problems is this time-constant problem. Mr. Teune was suggesting that our policies, our values, change at a rate too rapid to make it possible to implement a plan. I think we can adopt a plan.

Shaping of Public Policy

311

One of the problems may be the articulation of budgeting and planning. If you make a firm five-year plan, you somehow have to be able to project a five-year budget, a commitment of appropriations which will implement that plan on a rolling time schedule so that you commit yourself. Your policies may change and your goals may change in a three-year period, but you won't change those commitments. That will give you some stability and some opportunity to test the plan. Chairman: It's a planning process rather than a plan per se that we are looking for. But this issue is not an either-or matter. If you go through the process of trying to develop your options, that in itself is going to be the discipline you need to get the information to support those options. Regulatory Commissions The independent regulatory commission is relevant to what we have been talking about. One of the first cases brought forward by the executive branch is deregulation of the airlines. Every single airline is lined up against it. It's a form of intervention which does not meet their needs as they see them. The question here is really not one of planning, but rather of intervention and the role of the independent regulatory bodies. The ICC has been more an umbrella to avoid competition than to encourage competition. Until recently the railroads, truckers and buses were comfortable with the ICC. It was a form of intervention that suited their requirements. Would we have been better off without these socalled independent regulatory commissions in these two cases? Schlossberg: We are better off than to have had them controlled by the industries they were supposed to regulate. The ICC doesn't have to be the creature of the railroads and the truckers. The ICC could serve a useful function and permit competition, new routes, and new people. It doesn't have to be the handmaiden of administered prices of the industry it is supposed to regulate. McGowan: W h e n I was a railroad lawyer, over 90 percent of the railroad rate cases at the ICC were proposals by the railroad to decrease rates. Those were opposed by truckers or barges. I always thought that the populist farmers who fought, bled, and died to pass the Interstate Commerce Act, to regulate the rates of a railroad monopoly, would have been whirling in their graves if they knew that now most of the rate cases involve rate reductions opposed by other forms of competition. This is all due to Congress, whose national transportation policy appears to require the Interstate Commerce Commission to keep everybody in business. Byrom: You just put your finger on something that's fundamentally different about our so-called free enterprise system. One of the freedoms our system has denied is the right to fail. W e hold an umbrella over the least efficient producer in the system. Every other indus-

312

Committee III

trialized nation that I know concentrates production in the hands of the most efficient, and we operate to the opposite extreme. Not intentionally, I am sure, but that is the way the system works. McCowan: The moral I draw from that experience is that we have a great capacity in this country for devising governmental machinery to deal with new problems. That was the case in 1888 when they passed the ICC Act. The railroads were throwing their weight around; they had no competition from anybody; they could raise the rates any time they wanted to. But we have absolutely no capacity to dismantle that machinery after the problems have changed or disappeared. Chairman: The form of the organization became part of the protection, and it's in a no man's land today. Many of these commissions will argue that they are legislative in nature; that they are not executive and not responsible to the President. Sundquist: Most of the trouble with the regulatory commissions goes back to the way members are selected. Those are high visibility offices from the standpoint of the industry being regulated. They zero in on getting their people on the commissions. They are low visibility offices from the standpoint of the President and the general public. So they tend to get taken over by the people who really care. The solution is to run these agencies much as the executive branch operates in any other area; in other words, have single administrators so that the responsibility is clear, there is complete executive control, and the President is responsible. The way in which Transportation Secretary Coleman decided the Concorde dispute seems to me right. He took responsibility. The Department of Agriculture, in the person of the Secretary, probably has more regulatory power than any one of these commissions. It has never caused a bit of trouble because there is an appeal procedure and an administrative court system within the department. A combination of those two seems the direction in which we ought to move. McGowan: The percentage of direct review in our court of the independent agencies is high in relation to direct review of regulations issued by the departments. Citizen Participation Chairman: I hope to wrap up our discussion by looking at the general subject of citizen participation, government responsiveness, and confidence in government. Many subjects could come under this general heading: the role of general interest groups, voluntary action, utilization of the private sector, avoidance of conflict of interest, codes of ethics, political education, continuing education, the role of the media, public TV, paperwork, environmental and economic impact statements, voter participation, voter registration, political activity by civil servants, attracting more able young people into public service, the role of educational institutions and professional organizations.

Shaping of Public Policy

313

Clusen: Generally, how you feel about citizen participation, its usefulness, its effectiveness, the extent to which it is used, how much it is available to the general public, depends upon where you are in the system, and whether you see it as an individual or as a part of a group. In a general way, of course, we are all part of the public, engaged in participation of some kind. But that's not what we are talking about. Essentially, we are talking about nongovernmental interest groups. There is no doubt that the electoral process is the most obvious form of participation, even though it is not a highly satisfactory tool for most people nowadays. It selects people, but it doesn't have much to do with the shaping of policy. How great is the opportunity for participation and what are the new tools? There is a growing tendency to build a public role into all legislative matters. Sometimes it's a cosmetic one, but much new public legislation, particularly environmental legislation, involves the hearing process, which works out satisfactorily. Most major legislation does now mandate a public voice, a new trend in the last twenty years or so. The opportunity has increased, but the most frustrating part of it still is the lack of feeling that you can influence the outcome in any way except peripherally. Part of that happens because there is no real feedback. You go to hearings, send statements, write letters. But in most cases there is no feedback, no process of accommodation. It is frustrating to work hard at a piece of complex legislation, and then meet silence. Unless you are a part of a major lobbying organization, you don't have any feeling that you affect the outcome. One of the problems which most special interest groups have is difficulty in competing with experts. Legislation is so complicated because it so often involves economic, technological and scientific problems which many are not competent to deal with. Sometimes legislation provides some money for public information and education. But this continues to be frustrating, particularly in the field of foreign policy and economic affairs. If there is one thing that people feel helpless about, it's the role of the citizen in shaping foreign policy. The State Department at times tries to help people understand how foreign policy is made, but it is not a satisfying experience. Regulatory agencies are another point of great public frustration. Our organization deals with rulemaking, with what's put into the Federal Register for comment, regulations that affect our daily lives. The options as to how you can influence policy differ greatly at various levels of government. It's still true that people feel most effective when they go to their town meeting or their county board, because they are talking to their neighbors about the corner street light or the garbage collection. But government at that level is no less influenced by pressures of developers, pressures of realtors, and pressures of economy.

314

Committee

III

T h e proliferation of special districts—health, air pollution—has also affected the public input. They are the least accountable, least reachable, and least responsive. Unless you know people, you have no redress, not even the ballot box. There is no doubt that it's an elitist group that tries to influence the shaping of policy. The concept of the fire department, the village school, the town hall, is still alive in some parts of the country, but, in general, the government is deficient in its communication with citizens. Government, whether elected or bureaucratic, forgets that people remember the little things. It's the form letter that answers the question they didn't ask that turns people off. T h e involvement of citizens in things like environmental impact statements is regarded as a hazard rather than a benefit, something that slows down the process. Most of all, as we move into the next century, we should be looking for new ways to build opportunities people can use, rather than to further the frustration people have in trying to deal with the government. Chairman: What kind of reaction do you get through the League on citizen participation in revenue sharing legislation? Clusen: We do a great deal of lobbying on the Revenue Sharing Act. 57 One of the reasons we are supporting it is that it's the only game in town if you want money for certain programs. Categorical and block grants are disappearing. We did a study in eleven states on the public role in determining how money should be spent after it gets out there. The results were not good. The federal government challenges strongly the citizen participatory functions, or lack of them, in determining how the money should be spent. There is a lack of consultation with any except the top layer of local government on community needs and allocation of money. Other evidence showed that use of funds has worked in a discriminatory way against minorities and women in a good many cases. We are trying to strengthen the legislation in respect to those two things, but without a great deal of success. Chairman: Have you done any how-to-do-it educational work at the local level on how people can become involved? Clusen: Yes, indeed. W e tell them how to produce, in quantity, information for distribution in the community on how you can help to decide how money shall be spent. Part of the problem is with the local officials who think revenue sharing is the way to relieve the budget. The general public doesn't know the opportunity exists. But we are trying to inform them. Chairman: These problems are not dealt with at the local level. I recall not too many years ago when the city of Pittsburgh didn't even publish its budget. Gilbert: Most of the cities I am familiar with feel that they are satisfying the requirement by the normal public hearings on their budget. Chairman: What constitutes a normal public hearing?

Shaping of Public Policy

315

Gilbert: If we want voluntary civic action, the obligation of the local government is to publish the notice that there is going to be a public hearing. Then it's up to the public to get there. Chairman: What about public radio and public TV? In some large metropolitan areas with minority language newspapers, the local government satisfies the statutory notice requirement by publishing in a newspaper of "general circulation." But in some parts of Chicago people don't read that paper at all. Byrom: We don't have that problem. In Pittsburgh there is good opportunity for the public to participate in discussions because city council and the mayor haven't been friendly with each other. The county commissioners and the city have been at odds. Therefore, each of them is criticizing the other's budget suggestions, and there is open discussion. Sundquist: How would you enforce this requirement? Clusen: You mean if there were written into the act a provision for increased citizen participation? Part of it is accessibility. The notices on the back page of the paper along with the last minutes of the city council are not sufficient notice. You could require that they be published two or three consecptive times; that notices be posted in all government buildings; that there be accessibility of information to the public. In most cases now there is no way of determining the impact that revenue sharing has on a budget. Sundquist: This would be enforced by the Treasury Department? Chairman: It would have to be done the same way as in discrimination: somebody makes a finding usually based on a complaint by somebody else who feels that adequate attention has not been given to the particular subject. Sundquist: But you would have to work from complaints rather than have a reporting procedure. Teune: When we began with the Constitution, it was understood that participation in the system would be relatively limited. That was achieved through a limited electorate, insulation of officeholders from direct contact with the electorate by the electoral college and legislative election of Senators. Those understandings have radically changed. We have a relatively unlimited electorate, on the one hand, and relatively uninsulated officeholders in direct contact with the population, on the other. The way we organized people's activities and participation was by counties, township, and such. There used to be issues that could be decided in localities. We now have new forms of structures of participation. The question is, can you really get people to participate in a meaningful fashion? Is it going to matter whether we have more primaries, elections, referenda and hearings? The promise of participation does not seem to stimulate people; after they participate, they don't feel they have had a meaningful impact. Can we, through education and more elections, make the government more responsive to democratic participation? 316

Committee

III

The United States government is based on the concept of the consent of the governed. What does that mean? Consent once for the Constitution? Consent all the time, every day, through informal or formal mechanisms? There is high expectation on the part of the government and the populace that consent can be meaningful. I don't know another system that makes that kind of promise. Goldwasser: I am surprised by your emphasis on participation in the processes of government and your de-emphasis of participation in elections. You asked for feedback, for example. The ultimate feedback seems to be our opportunity to put a person back in office or not. What we have been working on for many years now is to strengthen the election system, to increase participation in elections, responsiveness, the education of people who are participating. W e have been unsuccessful in accomplishing that. We still have only 50 to 60 percent voter participation in a presidential year; 30 percent in an off-year; and 25 percent in primaries. If we could educate people so they could participate intelligently in those processes, we would be much better off than in this serendipitous participation in the actual processes of government. That disturbs me. I have my own job; I have my own things to do; I can't have the demands and the burdens of being involved in government, even in those areas where I am expert. I have to depend on my representatives in government to do this job well. And if they don't do it well, I have the prerogative of voting for somebody else the next time around. I am worried about the influence of people who have more time, more resources than I, to participate in lobbies. They can contravene my ideal of how democracy should work more than contribute to it. Clusen: One reason we don't have a higher level employee is that we still make it difficult for people to register to vote. One could attack it either way. But because we are talking about shaping pclicy, I chose first to talk about how citizens try to affect public policy. Chairman: You are talking about two different levels of feedback here: the election of politically responsible officers and feedback in terms of citizens' efforts to comment on proposed rules in the rulemaking process. There is a lack here. There are certain statutory requirements for publication of proposed regulations in the Federal Register. But there is no requirement of record in the final issuance as to the disposition of inputs made by individuals. Public Interest Groups Paris: The most significant thing that has happened in the last ten years on this score is the rise of the public interest group and the concept of public interest as opposed to special or business interests. The provisions you are talking about have always been useful for the wellorganized interest groups.

Shaping of Public Policy

317

T h e point m a d e about being a busy person and not reading registers all the time is important. But we o u g h t to pay some attention to the success t h a t interest groups have had, b o t h substantively and procedurally, and look to that as the way for real public participation between elections. As to sources of frustration, it is n o t that people don't h a v e information, or can't get at the significant problems. It's this incredible absence of leadership on critical choices which have to be made in energy, taxes, health, even capital formation. There is understanding among most people that these are real problems, and that they require difficult trade-offs, b u t there is no public philosophy. T h e r e is no way of developing a public philosophy, a philosophy of intervention by governmental entities, that might get at these problems. You will find that Congress is as far behind as any other segment in society in its willingness to grapple with this. T h a t ' s the most critical source of f r u s t r a t i o n that people have. Chairman: David Cohen is back f r o m W a s h i n g t o n . Are you going to talk about this? Cohen: T h e reason I was away was that Common Cause today filed a complaint against C o n g r e s s m a n Sikes with the House Ethics Committee for violations of House rules that we feel are conflicts-ofinterest. Yesterday forty-five members complained to the Ethics Committee. T h i s is a f t e r nine m o n t h s of trying to get one congressman to file a complaint himself. T h a t says something about some of the items we are talking about here. W h a t h a p p e n s w h e n the process fails between elections, or doesn't respond? You have to worry about declining voter participation, and making it simpler to participate in an election. W e have done some things to be proud of in that regard. T h e 1965 Voting Rights Act really worked. There are blacks holding office now in the South who fifteen years ago couldn't even register. T h a t ' s going to multiply quickly in the Southwest to the Mexican-American and other Spanish-speaking parts of the country. But even if we made our voting system perfect, I see a rise of issue politics, which is not ideological. W i t h the rise of issue politics have come d e m a n d s on the political system which are not met. W h e t h e r it's absence of leadership, or whatever, the system ends u p not dealing w i t h citizens' concerns. T h a t ' s part of the dissatisfaction. W h a t worries us, as part of the public interest movement, is that with decline of confidence in government comes decline of public service, a lack of zest about politics. It's not the calling that the f o u n d i n g fathers t h o u g h t it was. Important in the rise of the public interest movement is that it attracts people with some disposable income. Even if they are not wealthy, they have more m o n e y that other people and perhaps more leisure. W h a t is being addressed here is an effort to inject some competition into the system. It's an important aspect of public interest that the traditional alliances o f t e n result in some issues not being faced.

318

Cortmittee

III

That sometimes has a short-run salving effect, but problems get postponed and choices in the end get limited. The other aspect of it that's important is that there are people who really do want to participate, not in the conventional sense, but learning how to use the tools of democracy. It is remarkable to see the effect on people who have taken the plunge and have just set up a meeting with their local congressman. It's really tough to get people to that level, but once there, there is no turning back. This suggests that we have to keep using what we have available; otherwise, it really does waste away. Participation is a healthy thing. Leadership has to be exercised. Part of working with people is recognizing that there is no instant gratification. You don't tackle a problem or influence representatives right away; it takes a while. You have to educate them, and you aren't always successful. One aspect of participation was tried in the state of Washington. How do you form a compact? How do you get some understood agreements in the society? In that state, experimentation and leadership made the difference. Governor Evans wanted this to happen, and he worked to get citizens involved. They got not only the citizens who come to meetings; but they did random surveys; they did newspaper interviews; they had whole sections of the Sunday paper that people could respond to; they did telephone surveys. The most important thing shown was that you could help people work their way through an issue. They started with the growth issue. When they started discussing it, people were for "no growth." Then they saw what the effects of " n o growth" meant. Chairman: Are you talking about the " n o growth" in relation to environmental considerations? Cohen: That's correct. They were able to show that children would be leaving the state or be unemployed. They then began to figure out what the trade-offs were: how to protect the environment and still have a policy of growth. Another thing was the relationship between citizens and experts. You know, experts can scare citizens away. Even we national lobbyists can overwhelm citizens with our expertise. W e can scare citizens away. All of us have to watch that. Yes, even in Common Cause. There are no exceptions, including reformers. Obviously, we are fallible. But people are in awe of those who seemingly have knowledge. You have to work hard at bringing the experts in at a point when the citizens have some confidence in their own judgments. Some experts couldn't relate to that world, and so they didn't end up participating. But it was a healthy thing in showing how citizens can be informed without being overwhelmed at the beginning by experts. Now, Washington is a small state, not as heterogeneous as Pennsylvania or Illinois. Maybe those things can't happen everywhere, but it is worth looking at as an effort to build agreement in a community. It brought a whole host of elements together. As we grapple with what our philosophy of intervention ought to

Shaping of Public Policy

319

be, and the different approaches to a public philosophy, and how people influence choices, we have to find a variety of methods of participation that don't prevent things from happening, but serve as feedback and as checkpoints. Mr. Staats and others have been vigorous commentators on how revenue sharing ought to operate in terms of participation, in terms of how citizens have a chance to influence the decisions of local government. Because there isn't a sense of representation, people need these processes so that officials get a sense of priorities, of what issues ought to be debated, and how it ought to be done. There is a rich field of policy development to work here. It's tied to making government understood and respected, enabling a sense of public service to come out of government. Chairman: One criticism I hear expressed about public interest groups is that they rely too heavily on the courts rather than on the political process. They have been more effective in terms of delaying or stopping action than in resolving some of these trade-offs. Cohen: We shouldn't kid ourselves; there is nothing monolithic about the public interest movement. It has some very real tensions within it, such as whether you have membership participation or whether your role is solely as a watchdog, whether you block matters or propose remedies. One of our failures, and part of the reason there is so much negative use of the courts, is that we haven't really designed appropriate approaches to resolving difficulties. If some department hasn't learned about filing an environmental impact statement, the court becomes an obvious remedy. But I believe the less you go to court, the better. That's another way of saying that the things we are talking about are political and ought to be resolved by being worked out publicly. To take another issue like busing, at some point you have to find a political approach and concentrate energies in that area. McGowan: I certainly agree. There is wide diversity in the public interest groups and some are more eager to go to court than others. The former are much less sophisticated in their understanding of what limitations there are on courts. Several public interest litigations have been going on now for halfa-dozen years. Public interest groups, like all the rest of us, need good advice about what the courts are set up to do. Byrom: I tend to be an individualist. I have been accused of being an idealist. I may be a bit naive, but when Common Cause was initiated, I joined it with the understanding that there was going to be a referendum among the members as to issues we considered important. Then our funds would be used to research those issues, and we would be informed on both sides of the question and given an opportunity to determine what our position was. Then we would be guided as to how we as individuals could influence the decision. I thought it was a hell of a great idea. Furthermore, I have great respect for John Gardner.

320

Committee

III

I became disillusioned by the group's tendency to institutionalize its action on my behalf. I am against this sort of thing. I am at constant war with the Presbyterian Church, of which I am a member, for trying to do this for me. A s I mentioned earlier, to my consternation, I found Common Cause taking a class action suit on the nonconstitutionality of A D R , which I had advocated. You had never really asked me as a member, you know, whether I was interested or not. You took a position which was counter to my interest, so forthwith I resigned with a four-page letter to John Gardner, which was never acknowledged. I believe there is a place for the kind of thing Common Cause purported to be when it started. I don't think it's that today. What can we do about it? How do we do what you said you were going to do when you started. Cohen: You clearly have us on the point that we ought to better organize so that you at least get an acknowledgment of your letter. It was a mistake on our part, and let me tell you how we work now. We never purported to be on both sides of the question. We are an advocacy organization. Byrom: At least you were going to explain the rationale of the advocacy. Cohen: Yes, that's right. I think that's very much what we are doing. Lobbying This goes to the sense and question of participation and to representation. The public interest movement that is not court-oriented is giving people a sense of representation at least on the issues they care about. To do that effectively requires participation on the part of our members. The fact is that neither the League of Women Voters nor Common Cause influences votes. That's a tough thing to acknowledge, because people want to be represented, and they think lobbyists work miracles. All they really do is diagnose the scene. Byrom: You have a little more influence than a trade association lobbyist because you tend to represent votes; whereas a trade association doesn't. Cohen: We are constantly tested on every issue we are working on through membership participation, which means you do have to explain the rationale. Getting a person to write a letter requires more effort. People want to know what the key arguments are so that they sound intelligent, particularly those who know a congressman or people who move in that circle. In a real sense we are market-tested every time we get involved in an issue. That's the reason I said we made a mistake on ADR. The issue of tax reform was high in people's minds then, as high as it is today. But it wasn't until we began to do some reasonably sophisticated

Shaping of Public Policy

321

surveys that we discovered what people meant by tax reform in terms of Common Cause. There have been some vast changes. Chairman: Do you have a mechanism to get members' viewpoints on something like campaign financing, upon which you have been so instructive? Cohen: It's fair to say that on campaign financing the organization proceeds on a high degree of faith. When you are talking about subjects like seniority, campaign financing, financial disclosure, and conflicts of interests, there is a high degree of trust in group opinion. That means that we have taken the overall view, in terms of public financing versus nonpublic financing, but we never get into what are really the technical details of a piece of legislation. No, we didn't ask people whether to draw the line at $1,000 or $3,000 on contributions. But on issues which are less clear, you have to probe hard. Right now, on a question of energy policy, we are probing the nuclear question, even whether we should be in it. Chairman: We are talking here mostly about organizations that operate outside of the political party structure. But it seems that voter participation, citizen participation, voluntary action, and confidence in government are all part of a package, all interrelated. Perhaps Susan Paris will tell us about the Women's Political Caucus. Do you operate within the political framework or not? Would you consider yourself a public interest group rather than a political action group within the party framework? Paris: The caucus is an effort that grew out of the rise of issue politics that David Cohen talked about, as well as out of the civil rights movement. It started in the early 1970s and combined with the antiwar movement. But it is an explicit effort to get more women to participate as candidates and political people in the electoral process. It has been gratifying to see the tremendous increases—50, 60, 100 percent every two years—in women involved in school board elections, city councils, and state legislative races. It's come at a time when you have had substantial reform in the political process itself, in the way campaigns are financed, and in standards of accountability and openness. O u r candidates, by having been out of the system so long, have been able to take advantage of some of the new rules. They have seemed fresher, and have had an advantage in being available to more regular citizens. One problem we are beginning to deal with now is that once you get people elected, there are inadequate networks and sources of information to keep them good public officials. Take budget making. Some know the techniques; some don't. But there's little good information for city councils on some of the major questions that municipalities ought to be dealing with. We have had to substitute for political parties. W e have had to raise money, provide technique and expertise in how you run a campaign. The parties were simply uninterested in expanding their base. McGowan: The Federal Election Campaign Act Amendments case 58

322

Committee

III

is a good example of where participation by Common Cause and the League has been helpful. Voter Registration Chairman: What about voter registration? As you know, there has been a proposal for a postcard voter registration system. The theory is that people either don't take the trouble to register, don't understand the process, or don't get informed about the date. So this would be a way of increasing voter participation. Have you all taken any position on this? Paris: W e are supporting that. Cohen: So are we. But at the national level it is partisan and political. The Ford administration is resisting it because the people who would register would tend to be people from the lower income groups, and that would help the Democrats. Within Congress you see some very interesting twists. Many representatives, including the one who represents the district south of here in Philadelphia, and other big-city congressmen, work to keep postcard registration off the floor. They like a lower turnout, too. They live in a very safe district, what amounts to rotten boroughs. There is no competition in many of these big cities. We see newer southern Democrats working to get this legislation on the House floor, but northern Democrats from big cities beating it. Ruth: New York City is the only place I have been where you feel public pressure in the day-to-day operations of most offices. It is rare that there are no pickets in front of some office or other, or your furniture isn't gone, or whatever. What it amounts to is that citizen participation is mostly based on self-interest. What each of us must take into consideration is whether the politician is overwhelmed. There is no politician in America who could have resisted the demand for services in New York City which led to budgetary gimmicks and random planning. Those things which would have been good to happen, long-range projections, were overwhelmed by the citizen participation I saw in New York. I am not a New Yorker. Maybe you have to see it to believe it. It caused every politician, one way or another, to give in at budget time. There was no way to resist the unions at that time. It could have meant a general strike, and no one was willing to risk that. When the budgetary crisis became a true crisis, what could the politicians realistically think about? Now it's in the hands of the bankers, which is worse. You could say that citizen participation was so overwhelming that it caused that situation. Wechsler: How could I as a citizen of New York, opposed to this form of citizen participation, effectively prevent that capitulation which has brought us so low? Ruth: I don't know. Wechsler: Go down and picket on the other side? Ruth: Perhaps there aren't enough public interest groups to point

Shaping of Public Policy

323

out what was inevitable. I would have thought that people putting up the money for bonds would have been smarter. They kept putting money out without any alarm bells ringing. Maybe they were intimidated. Maybe you should have gotten the picket sign. I would have joined you. Wechsler: I am suggesting that we haven't figured that out. We have figured out how those who want change can manifest their desire. But we haven't figured out how others can manifest their view that they ought to be resisted. Ruth: We seem to be happy with so-called public participation when the average income of the participants is $20,000 or above. We assume they are enlightened. But when the bulk of citizens, the ones who live or die by what the government does, get involved, we get alarmed. We ought to face up to that situation. Political Parties Chairman: Aren't these public interest groups a consumer movement as some people see it? Or were they developed because other institutions failed to function? I am thinking about the political parties particularly or perhaps the bureaucracy or the executive branch of the government. Benson: Is there anything comparable to the explosion of public interest groups or special interest groups in other developed Western countries? Is it a failure of political parties to bring about effective participation which leads to this kind of ad hoc citizen participation? Cohen: There is no question about it being the failure of political parties. I suspect the League is very similar to Common Cause. There are two types of people in Common Cause. Some are veterans and others are rookies. The veterans are people who have had the experience, the frustration and the dissatisfaction of political party participation. The rookies haven't been welcomed. I have not discussed this at length with people in other developed countries, except a little in England and France and some Scandinavian countries, but they see it as an American phenomenon. Clusen: Two issues, however, have emerged in other countries, particularly the westernized ones, which created the same kind of special interest groups. One is the women's movement—this was never better documented than in Mexico City—and the other is the environmental movement. Byrom: People talk about the "Brazilian miracle" in terms of economics. The "Brazilian miracle" was the organization that got one million women out into the streets. The overthrow of the communist regime in Brazil came about because one million women protested against the Goulart government, and at that time the Army took heart. It was what changed the nature of the government of Brazil and saved it from communism. Teune: It would be interesting to entertain the proposition that spe-

324

Committee

III

cial interest and public interest groups are harmful in that they preempt the possibility of a party being developed or parties being strengthened. Cohen: I am pessimistic about the parties. I have watched the parties' inability in this election—at least when there were multiple candidates on the Democratic side—to provide elementary services in such states as Iowa. The candidates went through Iowa, raised money, took it out of Iowa, put it elsewhere, without staging one public event where voters could see the potential presidential candidates. I think the parties sank themselves. W e didn't knock them out. The vacuum was there and it was filled. There are a lot of aspects of the public interest movement which have special interest characteristics. I would not ever want to have public interest placed on a higher pedestal. But there is one aspect about membership that's important. People are part of whatever their own special interests might be. What they are saying is that there is something else that motivates them on some questions. It's an effort at being responsive to leadership to solve a problem, and wanting to know what's going on. That's part of the reason for organization. In my reading of the literature of reform, there is far more sensitivity in the last ten years to power relationships. When the League and Common Cause get involved in campaign finance reform, we are changing the ground rules. When you change the ground rules, you are changing people's access and ability to influence. When we get involved in seniority, that's a change of ground rules. That affects power, and there are high minded reasons for electing committee chairmen. When you decapitate three of them, you have changed power in a tough institution. Sundquist: I protest the linking of two ideas: the explosion of these public interest groups and the failure of political parties. There hasn't been any new failure of the political parties that has caused an explosion of something. That reflects a fundamental misunderstanding of what a political party is supposed to be to the public. A political party is designed to run the government, not to make presentations and protests to the government. As long as we have had government, we have had groups outside the government not responsible for decisions who are presenting petitions and making their cases. W e simply have more interest groups, more kinds of interests, and more organized representation than we ever had before. Chairman: But the difference in this case is that they are not identified as to a particular clientele with an economic interest in something. Ralph Nader's success has been largely due to his lack of selfinterest. Sundquist: But he is representing a point of view. Chairman: So are Common Cause and the League of Women Voters. These groups are not economically motivated in terms of anything they are trying to get the government to do for them.

Shaping of Public Policy

325

Sundquist: Exactly. Before we had Common Cause we had the national civil service reform league. And the budget reform league put into effect the budget system by agitating for it in the Progressive period. We had organizations to promote the direct primary. Every political reform has come about through a public interest group; it's nothing new. The political parties are clearly more permeable now, easier to take over, more open than they have even been. If you had a closed group, then people would have a reason to organize and push the system over. It's particularly true of the Democratic Party, but also the Republican, that they are easier for the general public to move into, become part of, and take over the management of, than they have ever been. Benson: The question of the link between parties and the explosion of the public interest groups is precisely in terms of what you said the parties are supposed to do, namely, run the government. It was what they were doing when they were running the government that resulted in the extraordinary disillusionment, the resentment, and the sense that you had to do something to destroy those existing parties. I don't know why Mr. Cohen is pessimistic. Common Cause is doing a splendid job. Cohen: I am just pessimistic about the parties. Benson: You have done a splendid job in the sense of destroying them as they were, and providing for their rebirth. Is it possible, given the existence of the Constitution and the enormous numbers of issues, for people to participate on every minor question? Don't we need political parties to be responsive and responsible? Ruth: In discussing parties, I don't think we should forget the old role of parties in furnishing services and jobs. They lost both of those roles, and that was critical for the party movement. Paris: People are assuming that parties, aside from providing services, are also a reasonable place to shape policy. They are not suitable instruments for developing alternative policy possibilities. We are really lacking mechanisms whereby decision-makers can have pluralistic policy possibilities provided for the discussion of issues we talked about. By rom: I am disturbed that while we have moved in recent years to undo some things that needed undoing, to redirect the emphasis, and to introduce a pluralism that wasn't available before, we have been dismantling the old mechanism. I fail to see a new mechanism that is going to allow positive constructive decision-making. That's frightening to me because, as I perceive our society today, it is incapable of making rational choices between difficult alternatives. Cohen: The constructive decision-making worries us, too. That's why I find myself extraordinarily encouraged by the Washington state effort. There you have all of the actors, of which leadership was the principal variable. Governor Evans really wanted public involvement in decision-making; that's why it happened. He knew he

326

Committee

III

couldn't rely on his existing b u r e a u c r a c y , so he assembled a lean staff. It showed that people can w o r k their w a y through an issue.

Public Opinion and Voting W h a t w e h a v e missed in this discussion, w h a t ' s o f t e n misleading about the G a l l u p and Harris polls and the list of the t w e n t y biggest grievances, is that they don't indicate w h a t leadership can do to bring people along. A poll b y some S t a n f o r d political scientists in 1 9 6 6 5 9 w a s designed to show that if President J o h n s o n had w a n t e d to, he could h a v e settled the w a r with the agreement of the A m e r i c a n people, N o w , whether that poll w a s valid is not the point. T h a t w a s what opinion s u r v e y s ought to be about. T h e r e are plenty of people in g o v e r n m e n t w h o w a n t to make that constructive decision, and they need reinforcing. Part of what people h a v e to do outside of the g o v e r n m e n t is find w a y s to bring about that reinforcement, because y o u are n e v e r going to stop people from picketing. Chairman: It's worth noting that the political parties opposed publicly financed campaigns in the beginning on the g r o u n d s that they would lose control, that the f u n d - r a i s i n g and f u n d - d i s p e n s i n g w a s vital to the organized f o r m of the party. If y o u had public financing, this kind of discipline w o u l d no longer be in the picture, they said. It seems to take an organization outside the political party f r a m e w o r k to bring about what the general public is n o w supporting. Benson: I suggest that the policies themselves have had an enormous impact on participation. W h y the a p a t h y ? W h y the explosion of a wide variety of institutions? W h y the citizen march on y o u r office in Washington? T h e y are a function of w h a t actually w a s done or not done. That's the element that seems to be different. In fact, I do agree with M r . B y r o m on the enormity of problems facing American society, the absolute inadequacies of the solutions, and the primary responsibility of the parties f o r those inadequacies. T h e y failed in that, and as a result of that failure, there is an enormous amount of frenetic, ad hoc, frustrated activity to fill that gap. I am encouraged that that g a p is being filled. A m e r i c a n parties are highly likely to become strong, responsible, responsive, ideologically coherent, and ideologically divided. I am extremely optimistic about the possibility of creating a genuinely m e a n i n g f u l democratic participatory system in spite of the Constitution. Parties are much more porous than they ever h a v e been. It is possible for high minded public service types to m o v e into the parties, and bring about r e m a r k a b l e kinds of changes. T h a t ' s h o w the V i e t n a m w a r was ended. Chairman: I w o n d e r h o w m a n y people w o u l d b u y the proposition of compulsory voting. I guess the United States is one of the f e w countries that doesn't impose penalities f o r not voting or h a v e some requirement to vote. Paris: W h a t about the A r i z o n a provision w h e r e b y if y o u do vote, y o u can vote " n o n e of the a b o v e " ? I think if " n o n e of the a b o v e " gets

Shaping of Public Policy

327

more than 30 percent of the vote, they have to hold a new election, and none of the people who were on the ballot may appear on the ballot in the subsequent election. Kirkpatrick: Increased voting would go a long way beyond what we are talking about. We are not going to get it with postcard registration. Let's go to automatic universal registration. It's done in most democratic countries today: Britain, Canada, for example. I don't see why the government shouldn't be responsible for seeing that everybody gets registered to vote. Nothing would increase the amount of voting as much as that. Goldwasser: We already each have a number; why do you need to do more than that? Clusen: Another way would be to have the elections on Sunday, as a good many countries do, which is shown to encourage voting. Chairman: How many would favor some kind of a system of either compulsory voting, or registration, or some penalties attached which would probably add up to the same thing? Eastburn: You would have to separate the registration from the voting. Goldwasser: There is a lot to be done beyond encouraging voting. I would be rather unhappy with penalties for not voting in the same sense that I would be unhappy with restrictions on movement around the country. I wouldn't mind subsidies to mix people up a little bit. I would favor starting with education and going on through all kinds of possibilities, but not to go that last step to a penalty. Byrom: If you require voting, would you have the opportunity to register a no-vote and have it count? That's done in some South American countries. Chairman: An abstention vote? Byrom: A vote that is counted, so that just as you know how many uncommitted delegates there are, you know how many voted. McGowan: I would think automatic registration, making everyone eligible to vote, would be a great step forward. I don't see any reason why that shouldn't be done; it is mechanically feasible. Sundquist: I would say the main reason people don't register to vote in the county where I live is because the local tax collector is likely to find them. Ruth: Or else you get called for jury. Sundquist: So that's another reason for having automatic registration. Chairman: All right. I will amend the motion. Who is in favor of automatic registration? How many hands do I have then? All right. We have agreement on something. Teune: There are a lot of problems with that. It denies a choice, one form of political expression. Why must I be in the system even if I want to be out? Benson: If you were registered and didn't vote, that's the most elementary form of protest. Teune: For what other purposes would such a list be used? What

328

Committee HI

w o u l d happen if it's the government's responsibility to h a v e registered you? Chairman: I don't see w h y it's a government responsibility a n y more than if y o u move and don't give the post office y o u r f o r w a r d i n g a d d r e s s , you don't get y o u r mail. Ruth: M r . C h a i r m a n , in terms of what this committee m a y or m a y not agree on, I don't think w e have had a serious discussion about a n y particular change in the Constitution. I don't k n o w if that reflects a consensus or not. But it seems to me w e have had two and a half d a y s to propose something. Since we didn't, does that reflect a consensus that w e do not need to amend our Constitution? Chairman: Part of the ground rules are that if w e want to come up with suggestions, fine, but that isn't really the prime focus. A s f a r as I can recollect, the only one that w e h a v e had reasonable agreement on that might require some change in the Constitution is the one on possible regional authorities with revenue generating responsibilities. Paris: W e also discussed the no-confidence vote. Gilbert: T h e four-year term in the House came up, but soon v a n ished. Chairman: Could that be done by l a w ? Automatic registration is a constitutional amendment, isn't it? Sundquist: N o , it could be done by law f o r federal elections. Paris: W e talked about other w a y s of removing a President aside f r o m impeachment. Ruth: Which included the Senate and House having to put themselves up for election at the same time. Four-Year House Term Chairman: C h u c k Gilbert said w e shot d o w n the f o u r - y e a r term f o r House members. Gilbert: W e didn't shoot it d o w n ; it never got off the r u n w a y . Sundquist: Some members of Congress feel that they w o u l d like a f o u r - y e a r term, if the election could be in the o f f - y e a r rather than with the President. T h e y would like to run independently. If you take 1956, 1968 and 1972, a f o u r - y e a r term f o r the members of the House, as President Johnson proposed, wouldn't serve his purpose because a Democratic House w a s elected when w e had a R e p u b lican President. T h e only w a y you could assure a House of Representatives supporting the President would be to require them to run as a ticket like the President and Vice President. T h a t would require a constitutional amendment, as would a change of term. M e m b e r s w h o f a v o r a f o u r - y e a r term do so mostly because they w o u l d like to run less often. But I don't k n o w that w e should organize the House of Representatives f o r the convenience of the members. A s a citizen, I would like to take a crack at them every two years. It's a chance f o r the citizenry to give direction to the government. Clusen: T r u e , but there's another side of the coin. T h e y spend their whole two years running, and I would like them to pay a little more

Shaping of Public Policy

329

attention to business. They no sooner get elected than they have to start running. Their eye is on the district. It isn't that I don't want them to have contact with their constituents; but they are not there in most cases finding out what the constituents think. They are running for office, speaking at fund-raising affairs, going through the whole rigamarole. Sundquist: But it does make them responsive to the citizenry. The theory of the founding fathers was that the Senate would be remote and removed, but you had to have one popular house. Chairman: A lot of people say that it makes them overresponsive to the pressures and the sources of funds which mean life or death in the political arena. Paris: That's why you have to have public financing for Congress. Kirkpatrick: I am against the four-year term. I think somebody did poll the members of Congress, and they were overwhelmingly against it too. I like the idea of the members of one of the houses having to be responsible to the voters every two years. Goldwasser: One concern I have in limiting the number of congressional terms is you may limit your choices at the beginning; that is, a person who feels he wants to make a career of politics may hesitate if he knows he can only do it for eight or ten years. You may screen out some people who were ready to dedicate their careers to it. Benson: If there were strong parties, the representatives wouldn't be as worn out as they are. The reason they are so worn out is precisely because they are individual entrepreneurs. They have to continually face guerrilla warfare, factions, cliques, and the like. Two years with responsible parties, with people who stand for specific things, gives the electorate an opportunity to make some judgment about them. That's different than senatorial terms, which are all-state. So you can, in fact, get genuine responsiveness and participation without the kind of strain and drain that comes about now. But if the trade-off is going to be four years and entrepreneurialism against two years and entrepreneurialism, it's better to have the two years. Chairman: I favor the four-year term because the House is overresponsive to pressure now. Many members would like to take a more independent position, but they can't. Financial Disclosure What about disclosure of financial interests, the receipt of income from your business back home, or the industry which you are regulating? Would this take a constitutional amendment? Byrom: No, I don't think so, and I don't know what the problem is. Chairman: Shall we apply the same rules to a senator as to a cabinet officer, that he put his holdings in trust when he comes to office? Byrom: You may never get anybody to come to office. Cohen: There is some experience on it. There are thirty-seven states that require financial disclosure. Some of the states are quite sweeping. You find people willing to serve, and you find only a few people re-

330

Committee

III

signing. The courts are upholding it. This is a pretty settled question. Chairman: W h a t about being able to go out and earn $90,000 in the course of a year in honoraria? McGowan: You can't do that anymore under the Campaign Act. Chairman: The Senate just removed it from the Federal Election bill. Teune: In some ways there is a problem of people earning money while in office. But more interesting is the phenomenon of officials doing things while in office so that when they leave office they can exploit what they have done. That's much more serious. Chairman: If you are a lawyer in the executive branch, Justice Department, or any agency, you must abide by a code of ethics. You can't take a job in an industry that you might have had any relationship with. There is a completely different standard for the legislative branch. They can continue to take income while they are in office; there is no prohibition against any activity they have when they leave. Cohen: You need some ground rules. But even on the executive side people can leave an agency, and then serve as counsel representing companies or interests as long as they are not working on the same matters as they were when they worked in government. Chairman: You can be a member of a law firm or a tax firm, but you cannot handle any cases before that tribunal. Cohen: You could do it in another court, though, or you could handle it in a court and not appear before the FTC or the FDA. But apart from having strict ground rules, I would like to argue for rewarding public service if you are a commissioner, or the administrator of the FDA, or something like that. Some of the former commissioners I have talked with put forth the idea of a kind of half-way house in which a person could spend a year or two outside of public office waiting to reenter the private sector. The universities are natural places for such people to be. Treat it as a sabbatical for one year or two so you don't have this constant pressure on commissioners, regulatory administrators and high public officials. You see, the FDA general counsel, who recently left, is now working for a law firm in Washington representing drug companies, but is representing them everywhere except before the FDA. Benson: Is there substantial support for the idea of national standards of financial disclosure for congressmen? Chairman: There is a provision now 60 that all senators and staff making more than $25,000 have to file their financial statements with me, but no one can see them. The only purpose is to take it out of the control of an individual member, so that if the Senate Ethics Committee should need that, it's in our custody. The new legislation would require public disclosure. The arrangement we have with the Senate now is of little value. It has involved Senator Gurney because of the accusations brought against him. But that's the only case in about eight years that has been raised. If you don't have public disclosure, it doesn't really mean anything.

Shaping of Public Policy

331

You have a question as to at what level you want to require disclosure. Do you want to limit it to a top policy-making group or do you go all the way down the line? I am talking about both officials and legislators. The legislation being considered would apply to any government official—legislative, executive, judicial, military or civilian —who makes $25,000 or more. This adds up to some 300,000 people. W h o would favor public disclosure by policy-making officials? McCowan: Are you talking about their annual income or disclosure of all their property? I have always thought that the problems that center around the public interest, including those of congressmen and judges, could be solved by a simple disclosure of individual income tax returns. They need not show everything they own. Chairman: The proposal under consideration would require listing all assets and all income reported on your income tax statement for yourself and immediate members of your family. McGowan: I would vote in favor of a disclosure of income tax returns each year. Byrom: You are talking about making the tax return a public document? McGowan: Sure. Cohen: We have resisted the tax return route because there are sometimes items on the tax return that are really private: the medical deduction, the charitable contribution, that kind of deduction. But we could frame it in terms of income and liabilities for that year, and major transactions. Wechsler: I never understood why the approach to this problem should be in terms of disclosure rather than rules of disqualification for interest in dealing with particular issues, the kind of rules that apply to judges. Chairman: The argument is that if you have full information on a disclosure basis, and if the people go ahead and elect you anyway, they do it knowingly and are willing to accept you. Whereas, if you don't have disclosure, then they are, in effect, being deceived. Wechsler: When they make that choice, they won't even have the disclosure, unless it applies to candidates as well as to incumbents. Cohen: The bill the Senate passed applies to candidates. I think any legislation probably would if it ever passes. Eastburn: Isn't there a question of conflicts that may not be financial, too? You may have conflicts of interest that do not show up in either income or assets. Chairman: What would be an example of that? Eastburn: Associations and boards of directors. Memberships in organizations. McGowan: Judges report all those things now. Byrom: There is a tendency in the United States to beat the system. There is nothing that you can set up in the way of an audit procedure which is reasonably economical that will catch the guy who wants to be consistent on any contemporary term. W e need to spell out our intention, and to ask a person to certify that he has not betrayed his

332

Committee III

assignment. Get him to sign it every year. That's a lot better than trying to set up a bunch of do's and don'ts, and then have an auditing procedure. Ruth: You may want to draw a distinction between the executive, judicial, and the legislative. In the Department of Justice we all filed our financial statements, and they were examined and audited. M a y b e even G A O audits those. The problem is that the legislature has no enforcing mechanism. There is no way to make your fellow brother accountable. Y o u don't have a hierarchy in a legislature the way you do in the executive system and, hopefully, in the judiciary. The Vice President Chairman: W e ought to talk about the way the Vice President is selected. Should it be on a separate ticket? Sundquist: No. Harvey Mansfield has written a convincing paper 6 1 suggesting we shouldn't have a Vice President at all. His experience has shown that probably less attention goes into the selection of the Vice President than any other office in the system. It's usually done overnight; it's done very badly, and we have had some extremely unfortunate cases. He says that it would make better sense for the President to designate at any given time the official in his administration who would succeed him in case something happened. T h a t official would be, in effect, acting Vice President and would be confirmed, as under the present amendment. Then when the President wanted to make a change in his successor, he would go through the process again. This makes a lot of sense. W h o e v e r the man is, he ought to be somebody presumably high in the administration: the Secretary of State, perhaps, if we are in a foreign crisis. Now the Vice President is out of the channel; he is not experienced; there is no continuity. W h y not have the acting President be the man chosen as best for the job, and one who is part of the President's official family. Chairman: You would have a Vice President, but you would not have him on board until you go through the election of the President? Sundquist: He would not be elected and he would not have tenure. He would not necessarily hold office until the President's term expired. Normally, he would be a cabinet member or a W h i t e House assistant. McGowan: Would you have his name made public, or would this be a sealed envelope? Sundquist: No. His name would be presented to the Congress just as Nixon presented Ford's name and Ford presented Rockefeller's. He would be confirmed through that process. Chairman: You could conceivably have a President die before he takes office or within a week of taking office. Clusen: Then we would have a nonelected President. Chairman: T h e concern most people have is the way the Vice President is selected now. It's settled in the backroom after the President is nominated, and nobody knows who he is going to be. W h e n Nixon was selected by Eisenhower, Eisenhower never even knew him. He

Shaping of Public Policy

333

was chosen on the grounds that he was representative of a young generation from the West Coast. Sundquist: There is less of a character, record, and medical check than there is for a Grade-15 civil servant. Teune: What would this do to the electoral politics for the President? The vice presidential candidate now is a factor in managing a campaign, for placating a losing group, or attracting a region. Sundquist: Given the present method of selection, you cannot assign him any role. Every Vice President is different. The only thing he has to do now is preside over the Senate, and do whatever the President asks. The Mansfield proposal has the added advantage of building up a man by giving him responsibility. Whoever is the President's real deputy would be the one who would succeed him. Wechsler: And he wouldn't preside over the Senate? Sundquist: No, that function would be removed. The procedure would have the President succeeded by a real understudy instead of someone who comes from a hostile faction of the party, who has to reform the whole government when he takes over because the old crowd has to go out when the new crowd comes in. Chairman: This would obviously require a constitutional amendment. There would probably be no disagreement in this group that we need to redefine the method of selection and the role of the Vice President. Well, you have been a good group. It's been good fun. Thank you very much.

334

Committee

III

COMMITTEE IV

THE UNITED STATES AND THE WORLD Chairman: T h e table of contents of the issues paper* was designed to serve as an agenda. I will turn the matter over to the keynoter, M r . Oliver. Oliver: Last Friday, f o r the eighth time, I took the oath to preserve, protect and d e f e n d the Constitution of the United States against all enemies, foreign and domestic. N o w I am reassured that it is not a violation of that oath to suggest that we review our fundamental law f r o m the standpoint of its adequacy for the conduct of the country's foreign a f f a i r s , now and for the beginning of the next century. In " P e r s p e c t i v e , " I begin with the issues that are of or near to the constitutional level, but not every matter we take up is one that raises a constitutional question. I do believe, however, that stress-induced change will be our lot if problems discerned in this review are not given the benefit of foresight. T h e focus throughout is our constitutional system in action in the field of foreign relations. Finally, the attainability of immediate change should not be our primary concern here. W e must avoid confusing ourselves with the founding fathers. W e do not have the deadline or the compulsion they had to w o r k under. But the Constitution is in need of appraisal. It is time. If the results of this appraisal become a part of the coinage of thought about the Constitution and America's place in the century to come, w e will h a v e attained our objective here. I want to mention a f e w key words and phrases f r o m m y paper that are related to the crisis over value-choices in U.S. foreign a f f a i r s , although w h e t h e r this is a crisis that the people are a w a r e o f , or a crisis that only experts perceive, is unclear.

*A revision of the paper is printed in Volume 1 .

One phrase I want to emphasize is the solitary position of the United States in the world community as to our basic law concerning the conduct of foreign community relations. No other country in the world is a federal democracy, operating at the federal and state levels under a system of separation of powers. And this separation is unrelieved for the first time in our history. From the beginnings of our nation, the rigor of the doctrine of Montesquieu to protect us from tyranny was relieved by the rapid development in our constitutional history of party machinery as a political bridge across separation of powers. However, for the moment politically we seem to be in a situation where the bridge has failed us. Next, I want to mention "interdependence" in the world community. Is interdependence operationally possible for the United States under an unrelieved separation of powers system? Next, I want to bring to your attention the terms "blandness" or "insensitivity" or "self-satisfaction" at home with regard to our system of government as it impinges upon America's relations with other countries. Finally, the terms "concern," "irritation" and "loss of confidence" abroad in the predictable performance of the United States along this or that foreign affairs line of action. To begin with our solitary position among nations, I suggest that our capacity to act in the world arena be evaluated from the standpoint of potential capacity to act as other states do in a range of possible legal lines of action, or at least authorized lines of action; secondly, to consider actual capacity as distinguished from potential legal capacity, and to think also of forecasts about both potential and actual capacity. I find that our potential capacity is somewhat limited, and that our actual capacity for operations in the world arena as other states operate is significantly limited now. There may be differences among nations in their evaluation of our method of foreign affairs policy determination, but I have an impression that foreign reaction is generally negative. I wish to suggest some aspects of what I call an "immediate crisis" in the effect of the separation of powers upon the conduct and management of our foreign relations. First, tension between the executive and legislative branches over the determination of foreign policy has heated up, and a considerable struggle is going on today. This struggle is clearly linked to a "will to participate" on the part of Congress as an institution or entity of government, not through its political relationship to the President. There are many evidences of this will to participate and many identifiable motivations. Of course, the will to participate by Congress also creates certain systemic problems. One such is directly involved in a recent decision of the Supreme Court in the election board case, Buckley v. Valeo, last January.1 If that decision is projected into a reaffirmation of a wall between the managerial functions of government and the legislative-investigative functions, it will cut off the possibility of institutionalizing collabora-

338

Committee

IV

tion between the executive and legislative branches in the field of foreign affairs. This is a serious structural problem. A s you will note from Professor Henkin's contribution to the appendix to the Murphy Commission report, 2 and from other writings and the work of the American Bar Association, going back to the early fifties, a favorite way of getting out of our separation of powers dilemma has been to institutionalize collaboration between the executive and legislative branches. I had not thought that the Supreme Court would say it is unconstitutional—if that is what the Court says — f o r Congress to attempt to participate in decision-making in foreign affairs. Coming to "Problem C a s e s , " most of the issues are of near constitutional dimension because of their public policy significance and their unclear resolution in basic American public law. The only one I wish to elaborate on pertains to military policy. Military policy is a key problem, and its most important aspect is the military establishment. That establishment has grown. It has consolidated its position. We no longer have a slender peacetime army, navy and air force. W e are at considerable force levels of strength and a considerable state of readiness at all times. The executive commands the military establishment, but does it follow that the military establishment is a part of the executive apparatus? The answer depends upon one's appraisal of the military establishment's relationship to the Congress, and in part to its own internal sense of being and strength of continuation. In regard to military policy, I mention the legal problems attending the War Powers Resolution 3 with particular reference to the power reserved by C o n g r e s s to review and decide presidential actions by nonreviewable or nonvetoable concurrent resolution. Others may find more fundamental objections to the War Powers Resolution. I raise the question whether it might not present issues of needed legitimation of the present situation, or refinement to achieve congruity. Moreover, the effect of this resolution may be to strengthen either the power of the President as commander-in-chief of the armed forces or the power of the military establishment. In the section on " T h e Constitution and Participation in Transnational Processes," I suggest that the nation-state is probably not the final stage in social evolution. The road beyond the nation-state may lead to regional clusterings before the world achieves a single governance. Federalism may very predictably be a part of future evolution, although only after countries in the world practice it as states. That raises the question whether the United States is in a constitutional posture to participate in such federalistic arrangements. This is one of the major problems, and one that well fits within M a d i s o n ' s admonition that if we are to live by a document which will be valued for ages to come, we must be conscious of the changes that the ages may bring. Under the topic " S t a t e s of the Union and Foreign A f f a i r s " we must

The United States and the World

339

think of the cities as well as of the states, and I see attitudinal, although not legal, issues that are important in America's foreign affairs operations. On the whole, the states and the cities are not in any general way, except in self-serving ways, involved in or concerned with foreign relations activities. The actors seem to be the federal government, including the Congress and the people, but hardly their states or their cities. In the section on " T h e People and Foreign Affairs," I see the conflicting perceptions of Hamilton and Jefferson about the people. To Hamiltonians, is "the people" a great beast for foreign affairs as for other purposes? Or have we adopted Jefferson's imagery of the farmer somewhere in the piedmont with little concern about the world beyond? The people and foreign affairs involves, in the age of Walter Cronkite and Harrison Salisbury, the people's role in relationship to the media masters, the fourth estate's expertise, or at least asserted confidence, about foreign affairs matters. The big point for summary here is: are the people to be bemused spectators at a gladiatorial contest between the President and Congress, or are they to participate effectively so as to insure that both President and congressmen heed their wishes in this field? Under the heading "International Agreements Powers and Good Faith Performance," I make a point that regrettably comes to me from observation in government and not from study. The United States' record in performance of its international obligations is not as good as we the people and the media masters tend to believe. The treaty performance problem of the United States is directly linked to our constitutional structure. Would we improve our performance, reliability and credibility in the world by democratizing the treaty power, by removing the present capacity of one-third of the senators plus one to delay or bury a treaty? What should we do, if anything, to bring internal law into harmony with certain treaty commitments reflecting shared expectations of nations? Pollution is a good example. Should we continue a system under which self-executing treaties are possible, though rarely used, and leave to the executive branch its present policy of hardly ever using the self-executing treaty power until it is reasonably sure that implementing legislation itself will be enacted by Congress? I like the German Federal Republic's basic law system. It provides that the act that gives the internal legal effect to a treaty be the same act by which a majority gives ratification to that treaty. Should we make treaties invulnerable to subsequent inconsistent unilateral legislation by Congress? That is difficult to do. It is difficult to conceive of the President and two-thirds of the senators making domestic law which Congress can't change. Perhaps it would not be so difficult to envision something comparable to the French constitution—which makes treaties not only supreme law for the moment but supreme law for subsequent change—were the two branches of Congress to participate, equally and democratically, by simple majority

340

Committee

IV

vote, in the approval of treaties. Might not the process also of simple democratic approval of treaties reduce the problem of executive agreements in U. S. foreign affairs operations today?

Major Issues As to possible constitutional revision, I leave the details to others, and limit myself to calling attention to four major issues: One, is there a reliable and definitive process for deciding the respective foreign affairs authority of the two political branches of government? I say there is none. Two, is Congress so structured that it can effectively discharge its foreign affairs responsibilities? The answer there for me is " n o . " Three, does Congress accurately represent the outlook and attitudes of the American people on our relationship with the rest of the world? M y estimate is that it distorts them. Four, and finally, are we in a crisis of the moment, or are we in the early stages of basic structural difficulties which will eventually require correction of some sort? I believe that, despite the unusual character of Mr. Ford's presidency and the present conflict between the executive and legislative branches, we are in the early stages of a set of problems that will be with us for some time and that will probably get worse. As to the range of possible response to the situation, I repeat my view that Buckley v. Valeo is a part of our present crisis. W e must free up the separation of powers system so as to permit effectively structured and responsible congressional or popular participation in foreign policy formulation and execution. Chairman: I had not read Buckley v. Valeo as outlawing historical congressional consultation or designation of two congressmen or two senators to the U.N. delegation. Oliver: I agree. Chairman: It may be more difficult as to whether Buckley v. Valeo is the handwriting on the wall for the " n o w you see it, now you don't" type of congressional action: the President can do it unless Congress tells him he can't. It is conceptually closer than having Senator Mansfield sit in the U.N. Theoretically, they do not formally take the oath. They have already done so as congressmen. Oliver: I agree with what you say as to those situations. My comment was directed toward the notion that by act of Congress, there should be some institutionalization of shared knowledge, shared decision-making and even shared operations between the executive and legislative branches. One of the earlier proposals was that the National Security Act of 1947* be amended to permit participation at the National Security Council of key congressional figures, not as observers, but as full participants, including the vote. That is rendered extremely doubtful by

Buckley v.

Valeo.

Clark: I suggest we consider expanding the scope of our inquiry. W e have in this group a number of experienced constitutional lawyers,

The United States and the World

341

but also some, including myself, who have an interest in America's next century. W e will not have successful discussion of America's third century if we confine ourselves to points of constitutional law and various Supreme Court decisions. There are at least four nonconstitutional law issues within the framework of America's third century we should discuss. First, is America going to have a third century? Our expert on that is George Kistiakowsky, who has made a serious study of arms control and disarmament. Second, is the nation-state here forever? W e might give some attention to the problem of the status of our military; whether we have lost civilian control of our government since the assassination of John Kennedy; what can and should we do to get civilian control back. Several years ago Sol Linowitz put out under the auspices of the Urban Coalition 5 a report which indicated that $30 billion could be cut from military spending without the slightest danger to our national security. This is a vital question in America's third century. What is the proper status of the military in relation to the conduct of foreign affairs? Finally, we are all aware of the study made by the Aspen Institute on Interdependence, "Organizing for Interdependence: The Role of Government," by Adam Yarmolinsky, 6 which involves "A Declaration of Interdependence," written by Henry Steele Commager 7 and widely circulated here in Philadelphia. I hope these are subjects we can discuss during the next four days. Chairman: I plead guilty to dealing with the constitutional problems because the conference was basically called for that purpose. We can also deal with survival problems. It's not in the Constitution, but in ourselves. With respect to the nation-state, I assume that will have to be dealt with on a constitutional basis. Covey Oliver does so in analyzing whether the nation-state is here to stay. If it isn't, what are you going to do to change it? Military problems: Have we lost control? W h o is running whom? Are they really running us? By the time the budget gets through, isn't it too late for anyone on the Hill to do anything about it? Has the provision of the Constitution dealing with expenditures for two years and no more become such a dead letter that we either scrap it or do something about it? Interdependence: it is relevant to our entire discussion. Clark: Then you agree that those four subjects are within the periphery of this discussion? Chairman: I think so. Interdependence occurs in a variety of forms, sometimes economics, sometimes other things, but our exercise will cover it. The other three are specifically on the agenda. We have to discuss foreign affairs in the light of the real world, and whether or not it makes sense to have our current constitutional structure.

342

Committee

IV

Is Our System Unique? McDougal: I appreciate the paper overall, but have one or two reservations at the beginning. I think the reference to the solitary character of our structure is exaggerated. Twenty-five years ago, a Bulgarian student of mine made a comparative study of the constitutions of the world. Professor Lans and I decided there wasn't much difference in the major constitutions. The executive always had the initiative in the formulation of the policy; the approval of treaty policy, by making something internal law, was always—except in the United States, Liberia and Guatemala—a parliamentary function by a majority vote of the senate. The only thing unique in our Constitution is this two-thirds veto in the Senate on certain kinds of agreements. Since the congressional-executive agreement device has developed, we are really not so unique. We now have an alternative which is in accord with the rest of the world. We also studied the English system in comparison with our own and discovered that it wasn't quite as different as the paper makes out. In Britain the executive can make agreements, can ratify them, and give consent to be bound without the vote of Parliament, but if it changes the law of the land, it has to get approval of Parliament. The only function of federalism is representation within the country. Given the modern attitude towards federal states in international law, the principle of federalism is dead in foreign affairs. Our structure is not very different from those in the rest of the world. Chairman: How did you come out on that with Canada? McDougal: Canada is different. It has Quebec; yet under international law, the fact that it is a federal state makes no difference. Oliver: Separation of powers, you would have to agree, is a unique characteristic of the U.S. government. No other democratic government in the world has "our kind" of separation of powers. McDougal: I would debate that. Oliver: The point I make now is that operationally we are always having to explain to foreigners that, while we want to do this, we can't. We haven't the authorization from Congress. I mention the hypocrisy of the federal-state clause. In due course, you may want to tell us what you think about federal-state clauses in American negotiations. Gardner: There is something special about the United States. Let's just test it. The United States is now behind by quite a few years in its commitments to the replenishment of the International Development Association and various regional development banks. Can we think of any other major country in which a commitment by the President to put up money for international development purposes is not implemented two to five years later because of the refusal of the legislature? As a second example, we are embarked on a series of multilateral trade negotiations in Geneva in which the heart of the matter is nontariff barriers. The agreement of the President's representative in

The United States and the World

343

Geneva on a non-tariff barrier package is a dubiois thing. It has to be implemented by the Congress under the provisiois of the trade bill. No one can say with assurance whether the Conjress will carry out those commitments. Is there any other major cointry in the world whose executive branch cannot deliver with resject to its commitments? Pragmatically, whatever the formalities ma/ be, we are unique among major countries. McDougal: Is the defect a structural one, or meely a condition set by particular people? Ehrlich: Before the word "solitary" in the set of key words was the word "crisis." Perspective counts a lot, and it has changed in the last few months as we have shifted our attention iway from foreign affairs. That word "crisis," as I understand you' suggestion, is in major measure attributable to our constitutional structure. But I question the extent to which it is attributable to constititional structure. Jessup: I agree with you on that. Lirtowitz: There are two different elements: proHems in the conduct of foreign policy which call for constitutional «vision, and those which call for a different course of conduct undei the existing structure. Chairman: Is the United States different? Hov different are we? How much does it hurt us to be different? What ihould we do about it? I don't see any constitutional amendments maerializing soon on this. I see things like the Morgan-Zablocki bill »n executive agreements. 8 I detect the biggest area of tension in the House as it begins increasingly to declare itself into the act. It feels t has been running behind for a long time. The political changes in the last election were substantially greater in the House than in the Senite. You have more "Young Turks" in the House now than in the Seiate because of the post-Watergate turnover. I don't consider it a crisis. We have a rather hijh degree of tension on a constitutional level. The "squeaky wheel" i; the House, where people are beginning to "feel their oats." Rubin: There is a saying in Washington that fie more intelligent the House is, the less effective it will be. There ire many effective, very hardworking, intelligent congressmen. Whei they all want to get into the act, you usually get no action. It is the same in the domestic as in the foreign policy field. The paper was very good, although the lines vere drawn a little too strongly. The Buckley v. Valeo extrapolation vas a little extreme. I agree that our treaty structure is an impedimeit to doing international business. The basic structures, so far as the United State? is concerned in its foreign agreements, are on the congressional-e:ecutive agreement level. We have in effect at the present time sone 947 treaties and 4,359 executive agreements, and 98 percent of thise executive agreements are the congressional-executive type rather han straight executive. There is a drawing together of the legislatve branch and the

344

Committee

IV

executive, despite the federal election board decision by the Supreme Court. I worry about our concentrating strictly on what we want to do, rather on how we want to do it, because some of our problems arise from the kind of government we have. The value of freedom is implicit in this. It's conceivable that we could have a strong executive which would do things without involving the Congress. That might be a more efficient way of doing business. But is it the method we would like? If we are bogged down in multilateral trade negotiations because Congress won't approve an agreement to eliminate non-tariff barriers, or if Congress won't carry out an obligation which the executive entered into to replenish the International Development Association funds, is that not because we have a Congress with democratic values which, poorly or well, reflects the views of the American people? Is that a fact which we can ignore in this field? We ought to bear in mind that we are not talking about foreign policy in isolation. Perhaps there is too little discussion in the paper of the fact that politics does not stop at the water's edge. Almost everything we do in the foreign affairs field either has strong domestic implications or is an outgrowth of our domestic concerns. W e decide to make a wheat deal with the Russians or cut the Japanese off from soybean exports. Is that foreign policy, or is that really a reflection of the domestic policy of the United States in response to what the farmers want? Foreign affairs is just a portion of overall policy. Oliver: No comment. My role is not to present a major premise and follow it through, but to present issues. My job is to be Annie Oakley's helper, and throw the glass balls into the air for others to shoot at. Legislative-Executive Tension Gardner: There is something different about the way we participate as a nation in world affairs. That difference is vindicated because of certain basic values about the kind of society we are, and the importance of popular congressional participation. There is one element of our difference, however, which seems to be avoidable. It would take a constitutional amendment. I will admit in advance it's probably unattainable as a matter of practical politics, but let me put it on the table. Our system does not work well when we have a chief executive of one party and a Congress of another party. That makes foreign affairs virtually impossible. Much of our difficulty today in Washington derives from the fact that we have different parties in control of the two branches of government. Any commitment on the part of Congress to deliver on promises of the Secretary of State, particularly in an election year, has vanished. How do you avoid that? You could make it less likely if you had four-year terms for congressmen and senators. This is a rather big change; but if you agree that part of the problem is different parties in control of different parts of the government, then you ought to

The United States and the World

345

consider how you would avoid that outcome. It would still be mathematically possible for one party to win the presidency and not Congress, but less likely than now. Chairman: The noise you hear is President T r u m a n turning over in his grave. During the 80th Congress, w h e n both the House and Senate were Republican and T r u m a n a lameduck President, the degree of legislative and executive cooperation was, in my judgment, at its height. It got worse by 1949. M a y b e it was a special case due to Senator Vandenberg. But historically the period of 1947 and 1948 was probably the high point of legislative-executive cooperation in the field of foreign relations. It was w h e n T r u m a n was running against the "don o t h i n g " 80th Congress, calling the Taft-Hartley Act "slave labor," that trouble began. Oliver: It was bipartisanship. Clark: For six years under Eisenhower, when Congress was Democratic, we had a good working relationship. It's not necessarily dangerous to have Congress as one party and the President another. Ike was an extraordinary man. He could get along with almost everyone. Kistiakowsky: Ike could get along with almost everyone. But what he had to say privately about Democrats in Congress was a different thing. Clark: Yes, but that doesn't count. M a n y of you are familiar with the pamphlets which the Aspen Institute has been putting out under Harlan Cleveland's direction. One of the conclusions of the National Commission on Coping with Interdependence was that the most important adjustment to be made in America is the interface of domestic affairs and international affairs. Dickey: I have deep personal reservation about the one-sided unanimity so far expressed concerning the structural aspect of the problem. Having worked on the treaty power and the executive agreement problem now for forty years, I believe we dispose of this too readily. The M u r p h y Commission 9 disposed of it unadvisedly on grounds that better behavior and wiser statesmanship will take care of the problem. Of course, this is a problem central to the separation of powers aspect of our system. The procedural process aspect of cooperative foreign policies is relevant to almost every problem in this document. I agree with the author that the world today is not to be compared, as readily as the Murphy Commission did, with the world of the 18th century. This is not even the world I knew in the Department of State. It's not the world that I work on academically. Interdependence is reality. It's a condition of life and work that touches every facet of the h u m a n community today. It is particularly relevant to the way a nation-state protects its own national interests in the making of its policies. The making of national policies is going to be increasingly dependent upon a workable, reliable procedure for the authorization or approval of international agreements. I use the term " a g r e e m e n t s " to embrace the treaty procedure in our system. I question whether we have a workable, reliable procedure in our

346

Committee

IV

system today, in spite of the developing usage of the joint resolution procedure as a substitute for the treaty procedure. D o we have a workable procedure for the making of American policies which increasingly must have an international dimension if those policies are going to serve our national interests in the interdependent world? There are few problems raised in this document which are as basic as the question of a genuinely workable, reliable process for the authorization or approval of international agreements.

Popular Consensus Falk: T h e r e is a fundamental kind of Hamiltonian-Jeffersonian issue that underlies our discussion; namely, whether in the absence of a popular consensus, one wants an efficient foreign policy. T h e failure to distinguish structural issues from policy issues is partly a reflection of how people feel about the drift of foreign policy. Concern with structure is, in a way, a displaced concern with policy. This is important to keep in mind because it leads one to look to constitutional remedies for things that are largely political frustrations. I would take the Jeffersonian view that it is better to have an inefficient, ineffective foreign policy in the absence of a genuine consensus. O n e of the characteristics of the present period is that there is a failure of consensus in a number of fundamental dimensions. T h e Vietnam experience created a fundamental policy split between an interventionary-activist diplomacy in the world and a kind of neoisolationist-withdrawal predisposition. T h a t is part of what is reflected in the congressional-executive tension. If you look at the key i s s u e s — and Angola is the most recent one—it is a congressional predisposition toward withdrawal and a nonintervention diplomacy. It's better for the society as a whole not to be drawn into activist postures in the absence of a powerful consensual mandate, because that is what places the domestic system under tremendous strain, as seen in the latter part of the Vietnam period. There wasn't genuine consensus underlying the policy, and that led to encroachments upon other aspects of government. O u r attitude toward the Constitution was framed when the United States was not so clearly an important country. Now, especially in the context of foreign policy and the Constitution, we are trying to think as a nuclear superpower, capable of decisive and rapid action. T h e whole notion of the distribution of power over the conduct of war, a fundamental issue in the constitutional context, is difficult to implement under contemporary circumstances. T h e special position of the United States in the world relates to the concerns Joe Clark voiced: namely, a genuine split emerging within the society and its leadership as to whether or not to pursue a traditional kind of national interest perspective in implementing America's participation in the world, or to adopt more of what Brzezinski calls "global humanism," or planetary political perspectives, something that tries to take a practical, as distinct from a rhetorical, account of a change in world circumstances.

T h e United States and the World

347

In other words, part of our identity is global, and we must realize this leads to dissatisfaction within the body politic. It makes it difficult to mobilize the consensus that works smoothly within the constitutional structure. That kind of ineffectuality in a period of transition, hopefully to a new consensus, is essentially a healthy by-product of the constitutional arrangement, rather than something one should seek to overcome. Park: Covey Oliver has raised a good point on the difficulty of explaining to others the nature of our foreign policy system. M y experience has been that members of foreign governments understand the complexities reasonably well, although publicly they sometimes use the complexities of our system as a scapegoat to make their own policies appear more clear. Many academicians see parliamentary systems, particularly in the British form, as an ideal. Some political scientists and lawyers conclude that something of the British style is more in order for ourselves. This perspective, however, fails to account for factors that also make parliamentary government complex. For example, how can one deal with a Labour Party government in Britain without recognizing the strong role of the trade unions? So far as the concentration of authority is concerned, parliamentary systems appear to be clear. But in political terms, each of these parliamentary governments has its own unique set of complications. I also am concerned about consensus theories in American politics. At this particular juncture, anything approximating a consensus in foreign policy seems to be lacking. But what consensus often amounts to is an agreement among the elite not to disagree, rather than a broad, well-understood, deep consensus among millions of citizens. Consensus can lead to a centralization of understanding among a ruling group that, in turn, can lead to serious public controversy. In my view, as a specialist on Asian governments, in the current Indian situation, for instance, an apparent consensus has led to obvious hypocrisy and may lead, step by step, to dictatorship. I conclude that the separation of powers has much merit. As I have observed the collapse of other governments around the world, it has not been the legislatures at the root of the collapses; on the whole, executive power has caused the difficulty. When I think of possible constitutional changes in foreign affairs, we are likely to move for a clarification of executive authority. Frankly, in American political life, I would prefer to continue what appear to be somewhat unclear lines of authority, a system in which there is tension and struggle between legislative and executive powers. Oliver: In forecasting issues, I thought beyond the present superpower status of the United States, U.S.S.R. and possibly the People's Republic of China. To "throw weight" is not the final test of a nation's true power in the world today. However controversial Ambassador Moynihan may have become, his identification of this country's isolation—not isolationism—and the outrageous double standard by

348

Committee

IV

which the United States is treated in the United Nations presents serious problems that relate to our capacity to respond effectively in the foreign affairs field. A s to Professor Park, my experience in another area of the developing world, Latin America, convinces me that military power has come about in Latin America as a result of the failure of legislatures. A classic example is Brazil, where the legislature was not responsive; ergo, its functions disappeared under a Latin American doctrine that the ultimate protector of the constitution is the military establishment. M y experience in international relations with Latin Americans is stated thus in the paper: " V i e w e d from abroad, it has happened with some frequency in our history that deficiencies in American reliability, that really result from the inherent nature of the system, are seen elsewhere as excuses for American manipulation, evasion, and breach of commitment." O t h e r nations may understand how the system works, but they think it has worked to their disadvantage. T h a t may be because Latin Americans, unlike South Asians, are given to conspiracy theories. T h e y don't believe you when you say, " I t ' s not our fault; it's Congress that won't follow through." " B u t you control t h e m , " they always say. Political Bubblings and Splits Manning: I would not use exactly the vocabulary Dick Falk does and perhaps my perceptions might differ as to what are the axes of underlying disquietude in the Republic today. I agree that some of what we perceive today in short-term focus as structural difficulties in the Constitution are in fact reflective of basic new political bubblings and splits. Going to Senator Clark's comments, it is now generally accepted that the thir line between domestic and international affairs has been almost obliterated. This has come upon us only recently. Even if we had not had Vietnam, or the aftermath of the imperial presidency, or a recession, or debates about intervention and nonintervention, the erosion of the sharp break between domestic and international affairs would in itself compel Congress to become more interested in, and participate more in, international matters. Once, the W h i t e House could operate foreign affairs largely as an executive prerogative. But issues as domestically sensitive as the price of gasoline can in no way be handled m this country without involving the Congress. T h a t is a profound political fact. Therefore, not only do we have before us a basic trade-off problem, not only must we worry about the issue of the effectiveness of our foreign policy, but increasingly apparent is the issue of the representative character of our Congress and of our government. Not only does the United 5tates have a unique design for the conduct of international business, and not only do we lack an underlying political consensus, b u t these conditions have arisen simultaneously in the most heated political environment since the Civil W a r , when we have a non-

T h e United 5tates and the World

349

elected President in the White House, and in a time of major social and value change on many fronts. This can hardly be an appropriate time for a clear and balanced vision as to whether the constitutional arrangements which have served with rather remarkable aggregate success for 200 years will continue to serve us. It should be a time for extreme caution in trusting our current judgments and perceptions on such underlying questions. Clark: I almost totally disagree. The year 1976 is the ideal time to have this conference. I may say this because I am a politician out of office, to be sure, but I am a strong believer in the impact of participatory democracy on United States policy. I foresee a vindication of all of the idealism. W e are going to get a Democratic President who lives in the 20th century, a Democratic Senate and House with fine, new, young people, and a potential for moving this country in the years ahead back into the mainstream of attempting to solve our critical problems. Stopping the arms race is only one problem. The whole spectrum of problems raised by Dr. Commager in the Declaration of Interdependence is involved. There is a good chance we can get off the dime we have been sitting on since the assassination of President Kennedy. There is no better way to prepare for this than to bring together the extremely able people here to give to the coming consensus some sort of intellectual vitality. Secrecy and Executive Privilege Chairman: There are four specifics to analyze: state secrets, rather closely related executive privilege, the problem of the new structure of Congress, and then the legislative trends, mainly the single-house or double-house veto of executive agreements. There are other uses of traditional congressional powers, such as the power to appropriate, which we will never see changed. I can't see any basic change in the structure. We have already had one basic change for the time being: a nonconstitutional change in improving the appropriations budgetary process whereby the Congress has adopted a procedure for balancing expenditures against revenues, which every corporation in the last 200 years that ever stayed in business has been using. My first political experience of some difficulty was before the House Un-American Activities Committee when I was refusing to discuss the contents of an FBI file. A feisty young congressman was telling me what terrible things I was doing, and that I was going to go to jail. He happened to be Richard Nixon. W e have both changed our positions on executive privilege somewhat. It's fair to say he has changed his a bit more drastically than I. Many people think that the Supreme Court opinion in U.S. v. Nixon10 changed the concept of executive privilege. This is ridiculous. It's still alive and well. The doctrine as such is still there. Oliver: The four issues are in the paper to focus attention on whether the United States, despite its superpower status, is in a posi-

350

Committee

IV

tion to be a peer of other states with whom it deals in the international arena. That's the question. I don't mean to imply that executive privilege and the keeping of state secrets by the executive are good in themselves. I am simply asking, how does our system come out? Are we running too many risks, paying too high a price in the world community for our unusualness? How can we lower our risks without losing our basic freedoms? Would we lose our basic freedoms by melding executive and legislative powers in the foreign affairs field, provided we keep the judiciary independent and capable? Falk: Whatever constitutional and structural handicaps or inhibitions there are, they have to be placed alongside the United States' geopolitical advantages. Anyone looking from the outside at the American role in the world would do so from his own perspectives. Government officials might see that we have certain asymmetrical handicaps, but I think the general perception would be the opposite. The United States is one of the least confined actors in the world with regard to foreign policy. Whatever help the United States can get from its own internal legal, political and constitutional structure is beneficial. I would not like to see us assess constitutional and structural asymmetries without relating them to geopolitical asymmetries. My second point, an internal one, is responsive to Bay Manning's conjecture that we distinguish between transitory interests and more fundamental structural ones. The problems posed by secrecy, the use of complexity to mobilize political will, the reliance on experts and on intelligence estimates as a way of securing support for executive positions, all pose a fundamental threat to the constitutional order. As soon as One claims that secrecy is a general characteristic of the foreign policy process, and that the issues are too complex for the citizenry or for the Congress to deal with efficiently, one is moving very much toward an imperial presidency. It is not a matter of a particular President or a particular mood, but a matter of how information is manipulated in order to sustain given courses of foreign policy. I regard the issues that were posed by the release of the Pentagon Papers and by the Watergate period as much more than transitory issues. They strike at the viability of democratic principles with respect to foreign policy. It seems clear that most of the use of secrecy and complexity by the executive branch is anti-democratic in its motivation, and is gratuitous. It represents an attempt to exclude public participation from the foreign policy process. So much of what was in the Pentagon Papers had to do not with keeping secrets from foreign societies or enemies of the United States, but with keeping secrets from the American people and the American Congress. The role of secrecy, therefore, which is justified under the rubric of national security, really has to do much more with the attempt to restructure American society in an anti-democratic direction. It is important then to take a strong position against, or at least to limit, secrecy and executive privilege to the narrowest possible scope. Chairman: Dean Pollak made this point in his speech about the

The United States and the World

351

secrecy in the Cambodian bombing. I am surprised the newspapers didn't pick it up from the interrogatory former President Nixon replied to for Morton Halperin. Nixon said that opening up secrets was a terrible violation of the national security because it made it impossible for us to continue a program that might have saved American lives. W h y did it make it impossible to continue? It made it possible for Congress to find out about it and stop it. Your point is well taken. I have told of my indiscretion a couple of years ago while testifying on the national security issue for Dr. Ellsberg. I am afraid I made him mad because under the rather peculiar language of the Espionage Act, 11 I was saying that the papers were not that important. Ellsberg made the sacrifice of his life, you see, and then someone from Washington says, " W h o cares?" The issue was there, and you could find it in the response of the President to Halperin's interrogatories. Rubin: If you have a policy which is basically wrong, a certain amount of inefficiency is a good thing. Maybe the problems which result from executive privilege and secrets of state not really being secrets make it less possible for the United States government to operate efficiently when the people are not in favor. That's all to the good. W e haven't really had many well-kept secrets of state. I went through the same period that Butch Fisher talked about when we were trying to prevent Joe McCarthy from getting hold of internal State Department documents. I still favor certain types of executive privilege, but this isn't a major issue which is going to affect basically the capacity of the United States to operate abroad. Similarly, the other issues seem to yield to a certain extent to the geopolitical issues which Dick Falk mentioned. By and large, the United States is able to act about as effectively as other governments do. W e may have some difficulty in getting ratification of an agreement, but other governments operate under much more severe constraints: a sort of precensorship instead of postcensorship. Basically, the United States has been able to live up to most of its obligations as well as other governments have. There is a citation in the paper about our unilateral devaluation of the dollar. We might have violated an international obligation, but we were following a path established by the French and the British. These problems don't seem to point to a lack of capacity of the United States to act in a responsible way. Oliver: M y reference to dollar devaluation was to possibly grimmer future crises. The context is that if a coup ever comes to America, and it involves a foreign affairs issue, it probably would come by indirection in the same way that the United States, when it devalued, did so by indirection. There is a technical violation of the International Monetary Fund agreements in what was done finally. But that violation, as you say,

352

Committee

IV

was one for which we had ample precedent in the British import surcharge of 1964. That wasn't my point. M y point was that we get accustomed to deviating, not easily, but eventually. Limits of Executive Privilege Jessup: T h e question of executive privilege in terms of secrecy must be kept within narrow limits. The generalizations made about executive privilege are so widespread that they cover even the confidentiality of conversations. The contrast between that and the Cambodian thing is something we all need to keep in mind. Chairman: President Johnson handled the executive privilege case politically. He made a big announcement: "From now on, no one in this government can claim executive privilege except me, and in case of doubt please refer to me for decision." That meant the minor bureaucrats were off the hook. He gave the greatest protection to people claiming executive privilege by saying they couldn't do it. It sent the buck right square up to his desk. It was perceived as denouncing executive privilege. No one read the fine print, and everybody was happy. Ehrlich: If you are in the executive branch, it is sometimes difficult to negotiate an economic agreement when you have to come back to Congress. But on many economic issues, it is not only almost inevitable, but correct, that there be substantial congressional involvement. In the other example that has been mentioned, Angola, it seems to be also correct, and indeed inevitable, that Congress be involved. The question is not, are there serious problems that the United States faces? The problems are more serious domestically than internationally. If the coup you referred to, heaven forbid, occurs, I suspect it would come for domestic, not international, reasons. Kistiakowsky: I agree that executive privilege has been too widely used, and the insistency on secrecy has become absurd. Yet, there are areas where secrecy and executive privilege go together. W e must keep our communications with our negotiating teams abroad—whether it be trade or arms control—private for quite a while. Certainly any issues relating to command and control of military forces—let's use submarines as an elementary example—have to be kept secret for a long time. Once it becomes known how we did it a few years ago, it becomes much easier to figure out how we are doing it now. Since we have enjoyed discussing Mr. Nixon, let me contribute my bit to intelligence secrecy. Just before Khrushchev visited the United States in the fall of 1959, the Soviets hard-landed on the moon a large iron ball, the first landing on the moon. Khrushchev tactlessly presented a model of it to Eisenhower when he visited the White House. It was a pure accident, he said, that the two events coincided. Mr. Nixon was at that meeting and obviously was irritated. Speaking subsequently to the reporters, he said, " B u t they failed twice before they managed to land the thing." Later, a senior intelligence official came to my White House office, bitterly complaining about the

The United States and the World

353

"big shots blabbing in public." He said, " N o w the Soviets have so tightened the security of their missile and space shots that it has become exceedingly difficult to find out what they are doing." McDougal: T h e maintenance of a high degree of secrecy may be necessary for the conduct of foreign affairs in all branches of the government. Security is maintained today on the delicate positioning of nuclear submarines and monitoring devices. These depend upon arrangements with people around the world. If we couldn't keep much of this secret, we would be in more peril than we are. This Watergate-Vietnam episode has caused us to overstate the need for openness. I am not sure that fundamental freedoms are really in peril by the secrecy necessary for the conduct of foreign affairs. Lower-ranking people in government require a good deal of protection if they are going to talk candidly to their superiors, even to the President. Maybe we have exaggerated the need for freedom and underexaggerated the need for security and efficiency. Congress can't get the information it requires unless it can insure secrecy to the people who obtain and communicate that information. Certainly the Supreme Court couldn't open its sessions to let us hear their deliberations. The effective conduct of foreign affairs requires a good deal more restraint than has been mentioned in public discussion. There were many actions that Lend-Lease didn't want made public. Park: Although I agree with previous speakers on the need for shorter-range rules for certain types of secrecy, I have come to two conclusions—perhaps rather cynical—concerning the nature of our political society and feasibilities in foreign affairs. One is that most of our secrets eventually are opened for everyone to see, usually sooner rather than later. It is part of our inquisitive nature, whether it comes from the media or academia. Therefore, any long-term style of secrecy in American foreign policy strikes me as unwise. Exposés break secret diplomacy. Secondly, long-term strategic policies in foreign affairs also seem not to be part of our nature. I could cite the Vietnam War. Any effort that is too long, anything that involves long-term economic, psychological or informational commitments, breaks down in our society for a variety of reasons. I see a linkage between long-term security and policies that have long-term strategic implications. Unfortunately, our people tire of issues. I conclude that a minimum of secrecy, and strategies that appear to have shorter-term commitments, are more likely to work in our society. This has nothing to do with structural factors respecting the Constitution, but it has a lot to do with styles in the making of foreign policy. Concurrent Resolution Proposal Ehrlich: May I shift to the structural issues noted in the list of questions? Our keynoter properly points to the current proposal that would allow, by concurrent resolution, Congress to nullify an execu-

354

Committee

IV

tive agreement. T h e question is how much less than that would be constitutional. I suspect your view of this particular proposal is that it goes beyond the Constitution. Is that wrong? Oliver: You have brought me into the discussion now. I am a participant from this time on. Ehrlich: I would be interested in the general approach as to how far those in this room think the Congress can go. Perhaps all the way to that proposal? Perhaps even further? Oliver: At this point, it is worthwhile noting that some of the problems we have singled out here as foreign affairs problems are really problems of government operations across the board. I have no doubt that Congress is being tempted beyond the Hoover Commission report days to engage in veto-proof activities. There is a question of good faith application of the Constitution under those circumstances. If we have a Constitution that gives the President the veto power over legislation, should those who take the oath to preserve, protect and defend, as congressmen do, subvert that power by clever arrangements? I don't have any constitutional problem with Congress delegating a tariff barrier or a negotiating authority to the President, and then saying that what you negotiate in Geneva will not become effective until Congress approves it. I don't think that's a good way to run a railroad as foreign affairs negotiations go, but I don't see it as unconstitutional. W h a t is probably unconstitutional is the Morgan-Zablocki proposal — t o provide for concurrent resolution disapproval of executive agreements made under the inherent power of the President—unless you are willing to say that there is no inherent executive power to make executive agreements. Clark: An experienced negotiator in the area of arms control and disarmament said that S A L T negotiations must be kept completely secret or else the Russians won't play. I also have had the feeling that this has been a protection to our negotiators. Is there any legitimate reason why we should not state in broad, general principles what our objectives in a new S A L T negotiation might be? Would this be something that would just blow everything up? W h y couldn't we say when we go back to the negotiating table on S A L T next time that we Americans will propose the elimination of all landbased nuclear weapons, the elimination of all bombers, the drastic curtailment of the number of submarines capable of firing nuclear warheads? And add that we would hope that our friends from Moscow would reciprocate. Is that something that couldn't be done? Chairman: M y only experience on this was my two weeks in Moscow with Harriman on the test ban treaty, 1 2 and ten days or so in Geneva on the nonproliferation treaty. 1 3 Do we use the Soviet desire to maintain more secrecy than is absolutely necessary to get along with the Soviets? M y answer is "probably y e s . " They are secretive until they decide to go public. What do you think about that? You have been watching these things far longer than I have. I don't know about S A L T . I was getting ready to go to Finland in August of 1 9 6 8 when Czechoslovakia hap-

The United States and the World

355

pened, so I didn't go. SALT didn't start for another two years, and by that time we had MIRVs. Kistiakowsky: Anything public but a very general statement would irritate the Soviets during negotiations and would create additional difficulties. Their basic resistance to making public statements, I think, is now apparent. Our administration is so unwilling to engage in real disarmament that it would rather not make public its stand until it is closer to having a large display of agreement with the Soviets. Then we pretend that we have reached a "generation of peace" because they agree with us. I am overly cynical, possibly. Rubin: Let's return to Dr. Park's comments in the context of whether the United States can or should make long-term commitments. As someone who was the first general counsel of the Agency for International Development, where we tried to make long-range commitments and were shot down by the Congress, I appreciate some of the difficulties. But the statement you made seems a little exaggerated. We have had many programs in the United States. I recognize all the difficulties with our commitment to the International Development Association and others. But we have been able to follow through on overall commitments. Take a look at the economic aid programs the United States has had, beginning with the Marshall Plan. Sure, we have to go to Congress and get beaten around the ears every year. But we have had some kind of aid program going on for a long time, and in the trade field our programs have been generally consistent. By and large, the United States has a reasonably good record of adhering to overall long-range programs. Confidence in Government Manning: A comment regarding the secrecy question. I start from a different premise concerning the alleged long period of "consensus" which we are said to have experienced in this country in the conduct of our foreign policy. What we actually had can be better described as a delegation of authority based on confidence. My own view of the long period called bipartisanship or consensus is that it was a time in which the populace was sufficiently confident of the good will, capacity and knowledge of its leaders that it was willing to delegate to them the conduct of foreign affairs without too much review. Following the debacle of Vietnam—participated in by both parties and by several successive Presidents—that general delegation has been withdrawn. The fundamental phenomenon that one is seeing politically now—often described as the secrecy question—is that withdrawal of confidence. No matter what is done, what kind of structural changes are made, you will not reestablish a willingness on the part of the American people to allow its officials to conduct foreign affairs confidentially and secretly until you reestablish that confidence. Correspondingly, when that political confidence is restored, then public concern about the secrecy issue will also recede. The people as a whole will then be

356

Committee

IV

willing to accord the necessary latitude for confidentiality which the conduct of foreign affairs requires. Therefore, we are essentially talking about a particular political environment that I believe will pass away in time—if official behavior is of the proper quality—and cannot be made to pass away except over a substantial period of time. Dickey: The ability to restore such confidence is closely related to the quality of deliberation that takes place with respect to our foreign policy actions. W e haven't focused on that yet. But here is where faulty structural arrangements have invited a bypassing of a realistic deliberation with respect to the content of our policies. Until we introduce better structural arrangements for the deliberation of our policies in Congress, it's not realistic to hope for the restoration of confidence. These two go closely together. Lipson: One of the many merits of the paper was that it took a position that was comprehensive and informative, but it did not present this as sort of tapioca. We've been given hard tack, perhaps brittle, but until it crumbles, quite stiff. Now, part of Professor Oliver's point of view was an honest and forthright bias in favor of the executive. It had a disposition to object to, grieve over, deplore, the difficulties made for the executive by the incursions, especially of the Congress, but to some extent of the people. As Tom Ehrlich suggested, the constitutional arrangements make life difficult for the executive branch. No doubt it's harder, especially for ambassadors, to explain these mysteries where they serve. That in itself does not mean that we are ineffective. As for secrecy, I would add only that some of the experience recently developed in the relationship between senior members of the Congress and the executive, as with the armed services and the CIA, suggests that there has been a certain corruption of inter-branch arrangements. But Congress has not been the only corrupt side in that relationship. One of the specific features of the current situation is that various institutional actors in our country's constitutional scheme have tended to press their formal authority and powers to adopt ideological extremes. They seek everything the document might permit them. We have been accustomed in the past to desist from those attempts whenever it looked as though one or another branch was approaching the brink. As a consequence of some dangerous and ominous brinkmanship on the part of one branch, another branch has now taken advantage of an opportunity to go to the brink on its own. W e have to hope for a period when all sides will draw back, and adjustments, subconstitutionally viewed, can be made again. Linowitz: I am a devout believer in separation of powers. It has served us well, and continues to serve us well. Indeed, if handled properly, the executive can often negotiate more effectively simply by saying that whatever we agree on here requires the approval of Congress. It can strengthen our hand. To the extent it becomes more difficult to negotiate, the country is

The United States and the World

357

not ready for the course of action that's being proposed. If tomorrow a Panama Canal treaty were presented to the Senate, it would be defeated because the country isn't ready for it. W e have to realize that the separation of powers makes it necessary to get public support, without which foreign policy can't operate effectively. Oliver: In due course, we will want to discuss whether in foreign affairs the Congress accurately reflects prevailing public attitudes. As to the expectation that the Panama Canal treaty will fail because the American people are not ready for it, in reality, one-third of the senators plus one are not ready for it. They are not ready for it because they know the House would rise up in arms if the Senate used the treaty power to give away American property. I doubt if the people really care. Bridging Separation of Powers Professor Lipson, with a suave deftness worthy of the 18th century, found me "forthrightly and honestly biased" in favor of the executive. This may arise from his knowledge of where I have worked, or it may arise from my description in the paper of the overreach by Congress in certain areas, and of the notoriously poor structure of Congress to do almost anything, not only in foreign affairs. I do, however, recognize that there is a will of Congress to participate in foreign affairs. That will has been seen now for some time. It's not only related to Cambodia; it goes back as early as Senator Fulbright's drive for Senate participation under the rubric of advise-andconsent in foreign affairs decision-making. I wish to see that will to participate accommodated. But I do not believe we can operate in a world community on the basis of executive and legislative accommodations and from a pure, unrelieved separation of powers system. One of my important points is that we are trying now to cope with a separation of powers problem unlike any we've had in history. I can see the breakdown of all bridges over separation of powers in the foreign affairs field. I personally seek bridges over separation of powers. It's essential that we try to work out reliable bridges that both work and do not threaten us with tyranny. Perhaps this leads me to favor the executive over Congress in foreign affairs. However, the paper doesn't argue this course. The paper tries to be neutral on that issue. I do not advocate unimpeded executive domination in the foreign affairs field. On the contrary, if Congress shapes up, I want a role for Congress, even if strict separation of powers has to be moderated. My reference to "crisis" means simply that there is a degree of systemic dysfunction in the conduct of U.S. foreign relations. I don't suggest that there should be much ado made about a crisis, but it is quite another thing to say there is none. A crisis is a fact which we appraise. Our response thereto need not be linked explicitly to this or that course of action. My final point is on an important matter Richard Falk raised about consensus in relation to structuralist lines of action in regard to the

358

Committee

IV

Constitution. Despite his interesting and significant models of possible new institutions for world order, he has not said how the United States is going to get there in an orderly and legal way. I don't disagree that the ultimate requisite for meaningful evolution is a significant preponderance of preference, which is a slightly less demanding term than Professor Falk's " c o n s e n s u s . " But along the way we should take account of structural impediments to the effectuation of these preferences. T h e very existence of the impediments, the very existence of systemic dysfunction, reduces the political force of the emerging preference itself. I don't doubt that there's an essential interaction between the two. But separation of powers in the foreign affairs field may not really be very important to protect us from tyranny as long as the Supreme Court and other courts sit and are kept as an independent or separate branch of G o v ernment. Military Establishment Kistiakowsky: I'd like to make some observations on M r . Oliver's excellent paper. M r . Oliver asked, " I s the military establishment really a part of the executive, or is it m o r e ? " From my observations and otherwise, I conclude it is more. O n e obvious external piece of evidence is that, uniquely, the military has offices in the congressional office buildings. T h e y are fullfledged offices with telephones listed in the directory. T h e y have liaison people, colonels, some of whom are stationed on an essentially full-time basis in the front offices of key congressmen and of the military affairs and appropriations committees. As something which no other part of the executive does, it formally distinguishes the military. In addition, the President seems to have to accommodate the wishes of the military to a far greater extent than he does any other part of the federal bureaucracy. Now, coming to the various points. M y feeling is that the actions of Congress on military budgets are frivolous or, at best, reminiscent of an oriental bazaar. A simple example: a year ago the military budget was cut by $5 billion even though it was, in terms of constant dollars, less than the year before. This year M r . Ford increased the budget by $ 1 4 billion. So what does the military affairs committee do? It adds $ 2 billion. There have been sincere efforts by some highly competent legislators, like Congressman Aspin and Senator Proxmire, to keep the military budget under control, but I don't think they've been very successful. All of you are aware of the gradual fuzzing of the borderline between peace and war that's been going on for many years. An example, of course, is the massive military aid and subsequent stationing of so-called advisers in South Vietnam. B y the time President Kennedy was assassinated, we had something like 1 5 , 0 0 0 advisers there doing the flying and dying. Y e t supposedly we were at peace. T h e T o n k i n G u l f Resolution 1 4 then fuzzed the borderline altogether

T h e United States and the W o r l d

359

because it gave the President a free hand to engage in warlike activities in time of peace. I feel that the War Powers Resolution, to the extent that a nonlegally trained mind can understand it, was very well intentioned. Without interfering with the actions of the President as commanderin-chief in time of war, it tried to define the transition from peace to war, sharpen it and therefore claim for Congress the original constitutional authority to declare war. But certainly our handling of the Mayaguez incident was not encouraging. Here was a case of "overdoing it," to put it mildly. The net result was that many Americans and many more Cambodians were killed, some after the crew members were already returned. And yet the Foreign Relations Committee apparently endorsed Mr. Ford's action, and thereby precluded any further investigation on why and how it was done. Nuclear Weapons As we acknowledge a borderline between war and peace, there is another borderline just as critical for the country: the transition between conventional and nuclear war. Again I regret to say the executive in the last decade or so has been systematically trying to fuzz the difference. We hear about the use of mini-nukes, the so-called little weapons, which of course have actually more explosive power than the biggest conventional blockbuster, the so-called daisy-cutter, which the Air Force has. We hear about counter-force or controlled nuclear war, the Pentagon assuring the populace that it isn't going to get hurt, that only the missile silos will be hit. This is predicated on the assumption that the other side will be considerate enough not to respond in kind. I once heard a military briefing to President Eisenhower that was characteristic. Assumptions were made about what the enemy would do. If assumptions made sense from the briefer's point of view, then the scenarios proved that we would prevail without much hurt and pain. But what would happen if the other side were not so obliging as to follow the briefer's wishes was not discussed. This somewhat displeased Mr. Eisenhower. The same thing is true of current arguments about controlled nuclear war. If the other side responds in kind, the notion of limited nuclear war is purely academic. Now, what can be done about sharpening this borderline? At present, not by any act of Congress, but by constitutional powers as commander-in-chief, the President has the authority to use nuclear weapons. He has unfortunately partially delegated that authority to some military commanders. In earlier days there was pressure for reversal of that process. In some cases delegation is not terribly dangerous, such as to the North American Air Defense Command, because that involves defense missiles over our territory. But with potentially offensive weapons, such

360

Committee

IV

as allowing a Polaris submarine commander this authority, it is much more serious. Should the authority to use nuclear weapons be left strictly in the hands of the President? If it is left in his hands, it should be made very clear that he is the responsible party. There should be no fuzzing of responsibility. Should Congress be involved? The proposal has been made that the President be required to seek congressional approval. I don't think it's a good idea. But it's an interesting issue for the country to debate. Now, to come to disarmament, I must say, I'm very pessimistic. The reason is, as I said, that the military establishment is more than a part of the executive structure. And the senior military has a firm and sincere belief that any agreement on arms control is more dangerous to our national security than is the arms race. We can win the arms race; we may not win agreements. With the tremendous political influence of what Eisenhower called the "military-industrial complex," a President has to accept this situation. Until the power of the military-industrial complex—and that goes for the Soviet Union as well, which has a more politically powerful military organization than we have—until these forces are reduced in strength, it's very questionable whether major progress will be accomplished. In the meantime, the Soviet Union has a substantial public relations advantage because they urge general and complete disarmament without what they call the spying operations on which we insist under the name of monitoring. Chairman: For a sense of perspective, we ought to point out that the practice of advisers did not begin with Vietnam. It began in Greece with the Turkish aid program. We had advisers with combat roles in 1947. It worked there. It had some congressional support. When the British pulled out of Greece, Mr. Truman went on the air. But he wasn't too explicit as to the role of the advisers. The success in Greece was largely due to the de-Stalinization of Yugoslavia. So the first time it was tried it worked. The first time we engaged in hostilities without any major form of congressional action was, of course, Korea. Kistiakoivsky: The situation in Korea was a little different. Chairman: There's no question it was different. It wasn't a gradual escalation. Kistiakowsky: And our military had to run away or fight. Under those conditions, fighting appeared more tempting than when landing in a country in which there were no American military, and involving ourselves in the conflict. Chairman: The military at the time in Korea were not in organized forces; they were advisers. The organized forces got there awfully fast. Kistiakoivsky: To protect and evacuate American citizens. Chairman: Yes. Clark: I'd like to comment that the problems George Kistiakowsky

The United States and the World

361

discussed are not constitutional. They do not involve analysis of Supreme Court decisions or a determination whether the Constitution needs to be amended. They are political and they can be solved by political processes. We've all been brainwashed by the Pentagon for years. The power of the military is essentially un-American and must be curbed through the political process. Every senior officer in the Pentagon has a conflict of interest. If we were to achieve meaningful arms control or disarmament, they would lose their jobs, and have to go to work for Lockheed. But Lockheed wouldn't have any contracts anymore. So we shouldn't take what they say particularly seriously. I'm much more optimistic than you are about the capacity of the American people, acting through the political process, to cut the Pentagon down to size. I've already mentioned that our colleague Sol Linowitz five years ago came up with the Urban Coalition study indicating that an ultimate figure of $30 billion might be expected to be cut from the military budget without the slightest threat to our national security. This is not a constitutional problem either. Falk: Going back to the earlier deployment of advisers to Greece, which illustrates the theme pursued to some extent in our earlier discussion, the public's constitutional sensitivities are aroused less by the structural problem than by their approval or disapproval of the policies. It reinforces the distinction I was trying to draw between the situation where there is a consensus, a general satisfaction with the way in which the foreign policy prerogatives of the state are exercised, and where extreme concern with constitutional constraints is apparent. Even though Korea had many constitutionally dubious aspects about it from the point of view of the war powers, it didn't raise any kind of constitutional issues for the public. The Vietnam experience did. I maintain that this is part of what the constitutional setting envisions, a process which is more difficult to implement when enough people don't like it to create a significant dissensus within the society. The paper reveals an insufficient sensitivity to that dimension of the current situation, in a desire to streamline the separation of powers problem. In a period of "policy transition," it is more desirable from the perspective of the state to have the tensions and "inefficiencies" and difficulties of effectuating policy that presently exist. I would be unhappy about any effort to make it possible to execute controversial foreign policy during a period of fundamental dissensus within the society. International Legal Framework Secondly, I wanted to reinforce what George Kistiakowsky said about constitutional issues of a structural rather than a transitory character. There really are some aspects of the constitutional framework that seem insufficient. One is a continuing unwillingness, both on the level of policy and within the constitutional structure itself, to take account of the changed legal status of the use of force in international affairs.

362

Committee

IV

The War Powers Resolution itself is drafted as if the United Nations Charter and the Nuremberg principles nexer existed. 15 It assumes presidential discretion to use force in a legal vacuum. That legal vacuum did exist when the Constitution was drafted. There was no set of serious legal norms directed at the authority of the national government to use force. Here the Constitution is silent as to an important sector of foreign affairs initiative. It's probably inconceivable that any kind of constitutional revision could take place, but at least it seems important at the subconstitutional level that we express sensitivity to this altered legal framework. It is more a matter of leadership than structural revision, but it does go to the point of whether the United States takes seriously the notion that use of force in international affairs is limited to defensive situations. Leaving aside the technical argument of what is an armed attack and what is self-defense, it is more a matter of whether society is prepared, from the perspective of long-term realism or short-term morality, to condition its use of force on legal principles that statesmen and political processes have enforced over a period of time. Manning: Is it your suggestion that the War Powers Resolution should contain some kind of a definitional parameter within which the President may act? Falh: Yes. I am trying to make two points simultaneously. The failure to have that kind of conditioning language within the War Powers Act is symptomatic of an insensitivity to constraints that have evolved in international law. Secondly, it would be desirable if they were part of the language of any attempt to describe war powers. As to nuclear weapons, both in terms of the effects of using these weapons that cause genetic damage, involve widespread contamination of the atmosphere and induce radiation sickness, and because of their dubious legal status, their very use, as the General Assembly resolution suggested, 16 would itself be a crime against humanity. It seems that one should want to have some kind of constitutional sensitivity to the nuclear threshold. It is not important whether this is achieved through a procedural mechanism, such as participation of Congress in the initial use of nuclear weapons, or whether it would involve a nofirst-use legislative declaration, incorporating reference to customary principles of international law. What is important, when one is trying to look at the next century, is how to create a normative context in which the distinctive dangers to civilization posed by nuclear technology are taken into account. We have a constitutional framework that really isn't sensitive to the new urgencies posed by this kind of technology. McDougal: Article 2 of the U.N. Charter is not the law of the land? Falk: It is technically the law of the land. What I'm trying to suggest is that the insensitivity of those who govern the society in all branches is such that they don't take it seriously. It applies to the political question doctrine 17 in a judicial context. It's applied as if there were no legal norms in the context of war and peace. Now, this was true when the doctrine was originally formulated

The United States and the World

363

and when the whole Curtiss-W right notion of foreign affairs was originally articulated. 18 But the law of the international community has evolved to make these kinds of discretionary notions about the use of force either inconsistent with the subsequent development of the law, or so insensitive to their encroachment as to be virtually the same thing. Henkin: Obviously it's true that where you have areas of uncertainty and ambiguity, and you are trying to apply old notions to current situations, we are then likely to do what Dick Falk is charging us with. But we can't make constitutional doctrine on the assumption that we would like the United States to be on the side of not acting. That is where people like Dick Falk would like to be. The same doctrine must apply when many of us might be on the side of the United States' taking action. Constitutional determinations have to take into account both possible postures at different times. W e are now in a mood where more people are in favor of inaction, but there are situations where I personally may not be in favor of that. We have to keep in mind that possibility when we decide constitutional distribution of authority. W e have all kinds of tensions between the framers' original intentions and present needs. I was interested in Dr. Kistiakowsky's reminder that there are essentially two different constitutional principles in the original intention: one is civilian control of the military, and the other is legislative war power authority as regards the executive. On all of the major issues, the expenditure for weapons, disarmament, and even the engagement in hostilities, these two principles probably have not worked as intended. Instead of civilian control and legislative authority, we may have legislative authority at the behest of the military, and therefore military control. It's that relationship we somehow have to sort out if we're going to devise a system which will adhere to original principles. I'm not sure the War Powers Resolution hasn't been effective, despite the Mayaguez incident. Its chief purpose was to discourage Presidents, and it has had a deterrent effect regarding Angola. Kistiakowsky: It's too bad that Angola came out that way. W e couldn't test the resolution. Henkin: That's right. But how can you test deterrence? That's one of the great problems. Our military reliance on deterrence is one of those things you never test. You know that it has worked or it hasn't worked, but what made it work or not work you never know. I've never been high on the War Powers Resolution, because Congress is great on legislating general principles, but a " p a t s y " when it comes to particular situations. There's nothing in the War Powers Resolution that would prevent another Tonkin Gulf situation. On the question of nuclear weapons, I'm with Dr. Kistiakowsky. Congress has the constitutional authority to control war. Use of nuclear weapons in any circumstance would inevitably be an act of war and therefore the War Powers Resolution would automatically be in play. Even if one questioned the power of Congress to legislate in

364

Committee

IV

regard to hostilities short of war, the use of a nuclear weapon surely would mean a war situation. I wouldn't like to have that decision made by the military. Kistiakowsky: Suppose there is a legal state of war and the war is conventional, as might happen in N A T O . If there's war in Western Europe, and the use of nuclear weapons is being considered, would you want Congress involved in that? Henkin: I would want somebody from Congress involved. I wouldn't want a resolution. I'm essentially in favor of the Cranston bill or the proposal of the Federation of American Scientists in Washington, 19 which would require some participation by representatives of Congress. There would be a committee of four to six people on a standby basis to be consulted before there is any first use of nuclear weapons. I would not want to leave this to a vote of Congress, which presents a hopeless situation. McDougal: Could Dr. Kistiakowsky arrange time for Congress to have a voice in this? Kistiakowsky: I'm not for Congress deciding this, so that question should not have gone to me. Henkin: Like Dr. Kistiakowsky, I favor investigation, even after the fact. I would let the President act, then I would thoroughly investigate the actions. That serves as a deterrent, working backwards as well as forwards. It is clearly within Congress's power, but is a weapon not used effectively now. Congress should have investigated the Mayaguez incident. Kistiakowsky: Are you sure the decision to use nuclear weapons in a state of war is not an explicit part of the responsibility of the President as commander-in-chief? Once you take that away, where do you stop? Henkin: It is my view that, although the President is commanderin-chief, Congress is still in charge of war. On major issues, which should include the use of nuclear weapons, Congress can speak. I don't say the President can't act in the absence of Congress; he can. But if Congress says otherwise, it has the power to prevail. Declaration of War Jessup: Covey Oliver mentioned the completely altered status of the declaration of war. That meant something when it was written into the Constitution. It's now absolutely meaningless. Yet we're told that everything in the Constitution has meaning. What is the contemporary equivalent of the congressional power to declare war? I agreed with Senator Javits, when they were drafting the War Powers Resolution, that you couldn't proceed on the basis of arguing about the declaration of war. That was absolutely inconsequential and insignificant, and had no point. You had to proceed on some other basis. In addition, you have the congressional power to define and punish offenses against the law of nations. There was an attempt in the nuclear test ban case in the international court 20 to get the court to

The United States and the World

365

determine that it was a violation of the law of nations to have atmospheric testing of nuclear weapons. Nothing came of that. But there is a possibility that something can be done along that line. I understood Dr. Kistiakowsky to say that the President simply had to concede certain powers to the military; that he couldn't buck the military-industrial complex. This was the general view after the Spanish-American War, that the Quartermaster Corps and the Corps of Engineers had absolute power through their contacts in Congress for money that would flow into the congressional district for local bridge building, dredging, and that kind of work. Secretary of War Root bucked that very effectively. An executive with courage could control the military. Kistiakowsky: That degree of power would be more than I intended to attribute, but they're much more than a part of the federal bureaucracy. Ehrlich: Crisis is not a fact but a conclusion. It is based on values as well as facts. I favor an open and public clash of views, and Congress can provide a better forum for that clash than can the executive branch. It often does, though not in foreign affairs. That clash is likely to produce a result with more wisdom and public support than would the decision reached by a closed group of advisers in the executive branch. If there is general agreement, then there may be no problem. I realize there are problems with congressional minorities, sometimes with key committee chairmen. Given the seniority system, particularly in the military field, it can be an acute problem. The problem may be how to develop more legislative involvement as opposed to legislative authority. Authority now rests in a few members of Congress. The War Powers Resolution seems to encourage a different kind of legislative involvement. It calls for the executive branch to articulate the basis for its actions in a way that wasn't previously encouraged by Congress. The executive branch can avoid that, but at least it must do it more consciously than before. Time can be a problem, though; I will agree with that. The argument that the executive must act quickly, however, has been used as a ruse to avoid open public debate, as on Vietnam and the Dominican Republic. Holland: On this question of civilian control of the military, I was interested in Senator Clark's statement that he thought we could get the Pentagon under control. Did Elihu Root exercise some control? Jessup: Yes. Holland: I suppose my long association with Senator Fulbright has made me somewhat skeptical. In his book, The Arrogance of Power,21 and in conversations, he has said the Foreign Relations Committee of the Senate just could not get the facts out of the Pentagon. They were, I guess, feeding it to those they thought were friends, but Bill had a harder time. He said the military-industrial complex is so well organized that in practically every congressional district there's a factory producing war materials. So every congressman, because of his constituents, has a

366

Committee

IV

stake in a large military appropriation. He also described the way the military would spend $4 or $5 million just before appropriations time and propagandize for their budget by entertaining businessmen at military maneuvers. With the new campaign financing legislation, perhaps the arms manufacturers and the unions are not able to contribute to the election of congressmen in the way they could in the past. Toward the end of Fulbright's career, he was quite cynical and bitter over the military-industrial complex, which President Eisenhower had warned us about. I was interested in Covey Oliver's statement that there could be liaison officers from Congress located in the executive departments. This could result in a close working relationship, which I don't think exists at present. Clark: There has been since the beginning of the Republic a tug of war between the White House and the Congress, which I doubt anything we recommend is going to change. It's inherent in the whole constitutional system. Second, there are agencies through which the powers of Congress can be strengthened. One is the Office of Technology Assessment, directed by former Congressman Dan Daddario of Connecticut, which has not yet got into arms control and disarmament and the arms race, but which is prepared to do so. Third, the only answer to nuclear weapons is to abolish them. We're temporizing with the issue unless we can make an earnest effort with the Soviet Union and the other nuclear powers under United States leadership to abolish them. There is at least one presidential candidate who has publicly committed himself to the abolition of nuclear weapons. We have to reorganize and upgrade the Arms Control and Disarmament Agency. We have to eliminate military control of the Congress, and that's got to be done by the President. It won't be done by the Congress, although many military hardliners have left, including that charming Southern gentleman, Mr. Hébert. Their place is being taken by more moderate and intelligent people. I'm high on the War Powers Resolution. Finally, with respect to the Tonkin Gulf Resolution, Lyndon Johnson lied to us. He lied to all the members of the Congress; the only people who caught him up were Wayne Morse and Ernest Gruening. It's one of my great regrets that I wasn't smart enough to know he was lying. If he had been telling the truth, the Tonkin Resolution would never have been passed. Use of Nuclear Force McDougal: There has been a change in the expectations of the global common law. But it has to be carefully understood. There's a difference between the formulation of policy, the expression of aspiration, and the application of policy. Most people, certainly most of the

The United States and the World

367

spokesmen who address themselves to these problems, do think that the U.N. Charter's Article 2 (4) has worked a tremendous change in our law. At the same time, they invoke it selectively to serve their purposes, just as the Constitution is invoked selectively to serve certain purposes. By the very nature of the problem, aggression and self-defense are complementary and highly ambiguous concepts. They have to be applied in each particular instance. At the same time, we would be naive to assume that people are willing to trust in this prescription for their security. If we take a realistic view of the world, we know there's a delicate balancing of power which is dependent upon the spacing of submarines and monitoring devices, sabotage and espionage, and counter-intelligence around the world. This is the kind of world we live in. Any statesman who trusted in a definition of aggression and self-defense for the security of his own country ought to be impeached immediately. It was not the actions of Lyndon Johnson or Jack Kennedy that fuzzed the distinction between war and peace, but the world we live in: we are engaged in almost a death struggle of different ideologies. The more we can make sensitivity to the new aspirations a part of our own law, while at the same time not going overboard, the better. I'm skeptical about many things I've heard here. There will never be detailed consensus about public issues in any country. Leadership has to come from the better informed, the better positioned people in the community. The problem is to get leaders in foreign affairs who will be creative, who will recognize the desperate situation we're in, and move toward making Article 2 (4) and our other aspirations meaningful. I wouldn't want a President who bowed to every Gallup Poll, or to what the Washington Post or the New York Times urged. There's much more involved. Chairman: George Kistiakowsky, what do you think about the views of the international community as to force in general and nuclear force in particular? Kistiakowsky: There seems to be some organized effort at circumscribing the use of force. The United Nations Charter, for one, is a major step in that direction. At the same time, there has been a drift toward fuzzing the distinction between peace and war. The use of force has been expanding, and that's not good. I'm against urging that Congress be given the right to vote on the use of nuclear weapons. That's totally unrealistic. O n the other hand, constraints ought to be put on presidential use of nuclear weapons. I don't know exactly how to formulate them; they're not constitutional issues. But you want to assure that he will not engage in a rash, emotional act. That certainly could have happened in the last year or so. This whole business of mini-nukes is very frightening because the propaganda almost makes them sound as if they weren't really nuclear weapons.

368

Committee

IV

Chairman: T h e question is whether there has been an increased perception of general international law banning the use of force, growing out of Nuremberg and Article 2 (4) of the United Nations Charter, which makes nuclear weapons a matter for international law. Falk: Also, law that alters the status of discretionary decisions to use force in international affairs. Article 2 (4) really is independent of Nuremberg. The U.N. Charter goes back to the Kellogg-Briand Pact. 2 2 Chairman: It seemed as if I spent ten years at Nuremberg, when the international trials lasted only a year. I spent a good deal of time working with the opinion, and arguing with the late Judge Parker that they shouldn't have had an international ratiocination about the trial, because the charter says they have no jurisdiction to examine the validity of the charter. Oliver: I have lawyer friends who say that treaties are good only as long as they last. And of course a few lawyers who are not international lawyers know that at least in constitutional law terms, treaties last only until Congress makes inconsistent legislative arrangements. Finally, in my experience, there is considerable impatience and skepticism among the military about notions of substantial change toward restraints on the will of states. T h e big question is: do those who have the power under certain circumstances to disregard such arrangements see things in the same way we here do? Henkin: I might distinguish among the three components that Dick Falk mentioned; that is, Nuremberg, Article 2 (4) and nuclear weapons. Nuremberg has not become effective law. If you take the charter and everything that's happened since, I can't say that people consider Nuremberg as effective law. T o start at the other extreme, it's harder to talk about the legality of nuclear weapons for similar reasons. Nuclear weapons were not included in the charter. You'd have to find your prohibitions either in the Geneva Conventions 2 3 or in General Assembly resolutions, with the United States strongly opposing the notion that nuclear weapons are illegal, and the Russians also strongly opposing it. In fact, everybody who has weapons opposes that view. On Article 2 (4) I feel quite strongly that the charter meant what it said about firm prohibitions against force. Those prohibitions remain. Having said that, one trouble is that the lawmaking process has begun to carve exceptions, one for anticolonialism and others for humanitarian interventions. W h e n you start making exceptions, others begin to suggest, say, an implied aggression that consists of continuing an occupation, as on the West Bank. So although the principle is firm and generally accepted, the opening up of exceptions has made that prohibition unhappily less clear than it could be. I agree that increased sensitivity is very important. I would suggest, however, that any attempt to articulate it is likely to be counterproductive. That is, if we tried to tell Congress to put something in the resolution to reflect that sensitivity, you might get some general language, but you wouldn't get any meaningful limitations on the powers of the United States to use force. The United States thinks it

The United States and the World

369

always acts legally. You remember the debates about the legality of our action in Vietnam. Oliver: Yes, we're very self-righteous. Holland: When I read the Kellogg-Briand Pact now, I wonder why we were so naive when we supported it. I'm skeptical about any declaration that war is outlawed, or is not to be an instrument of national policy. It seems that there are other fundamental foundations that have to be laid—economic, military, political, educational—before these fine statements will have any meaning. International Sanctions Dickey: My perception of this question concerning international bans on the use of force would be both " y e s " and " n o " , but probably mostly "yes," on the grounds that what we're looking at are major prohibitions, not merely simple pronouncements. When you have major moves of that sort in the human community, rarely is there not deposited a residue of long-run acceptance. It's also important in looking at a question of this sort to move from preoccupation with the international community to our perception of American society, particularly if we're talking about American policies. This is not done sufficiently by most of us as practitioners or students of international affairs. I recently looked at the continuing evolution of our attitudes as reflected in our law and practices with respect to the use of force in American society itself. Take the family. Going back even fifty years, you'll see a steady progression in the law involving family affairs, particularly in respect to the use of force on children within the family. With respect to the authority of the teacher, there probably aren't more than three states in the country where within the past fifty years the use of force in the classroom has not been circumscribed. The processes of sanction governing this form of force in American society are immensely more developed than they were fifty years ago. When you move into the area of police and prisons, you find revolutionary changes with regard to sanctions for the use of force by the police and with respect to prisoners. I shall not go into the matter that's now before the courts, the ultimate use of force in the death penalty. But here as elsewhere, the broad picture is one of progressive constraint with respect to the sanctions for the use of force. Leech: I differ in putting too much faith in the prohibition of Article 2 (4) as a statement of positive law rather than as a statement of aspiration. The structure of the U.N. Charter has fallen apart. The exceptions we're building into Article 2 (4), through the self-defense area, bother me. States are using force unilaterally under the guise of selfdefense, presumably permitted by Article 51. I become more convinced, in looking at what has happened in the last twenty-five years, that the positive law against force is considerably less of a prohibition than we once thought. Park: In terms of the spread of public understanding on the use of force, I have noticed in the liberal arts curricula how little interna-

370

Committee

IV

tional law is t a u g h t compared with twenty-five years ago. T h e subject is l e f t to the law schools and to other special professional schools. T h e substitute in m a n y cases has been national security studies, which tend to put issues in a quite different context, mostly on military options. H a v i n g been a faculty m e m b e r at the National W a r College and on the war college lecture circuit, I have gotten to k n o w the senior military quite well in the last ten or fifteen years. O n e thing that strikes me is that it has become commonplace, in war games and conflict simulations, that we always "lose," and s o m e o n e — o f t e n a civilian—is all too ready to press the nuclear-option b u t t o n . McDougal: I d o n ' t regard any one set of words as being the only communication. I would add N u r e m b e r g to the charter, to the KelloggBriand Pact, to all the utterances that go on in the United Nations. W e have a continuous flow of communications here. T h e attitudes expressed by this flow of communication are different f r o m w h a t they were even twenty-five years ago. T h e P a n a m a Canal is an example. W h a t constitutes aggression, w h a t constitutes self-defense, would be argued in terms of Article 2 (4) if we used force against the Panamanians. A n y c o m m u n i t y must have a conception of authorized and u n a u thorized coercion. In a relatively unorganized world it's just Utopian to h o p e that you can ever get rid of the concept of self-defense. This b o d y of law is in better shape than m a n y people realize in the sense of a prescription being available. T h e application of it leaves much to be desired, but the law moves in incremental steps. W e have aspirations and needs here that will eventually become more comparable to our o w n law against murder. Nuclear w e a p o n s cause a difficult problem in ascertaining w h a t the genuine expectations of the people of the world are. T o y Feliciano, a Filipino, and I w r o t e a book on this law fifteen years ago 2 4 and f o u n d that underlying all the prohibitions on the use of weapons were two c o m p l e m e n t a r y policies: humanitarianism and military necessity. Military necessity is a fairly open-ended concept. People h a v e n ' t been able to decide w h e t h e r military necessity is for winning a particular battle or f o r national security. W e invoked our present Secretary of State, then an assistant professor at H a r v a r d , on military necessity for national security. Chairman: W h i c h one of his books? He changed his views a little. Henkin: Nuclear Weapons and Foreign Policy?25 McDougal: T h e r e were two of them; he had this conception in both of them. W e said w h e n you come to nuclear w e a p o n s — t h i s was fifteen years a g o — w i t h their t r e m e n d o u s destruction, perhaps the time had come for the lawyers to head for the door. In the light of times since, with the public utterances, the discussions of nuclear tests, and the U.S. debates, there's beginning to be a considerable b o d y of opinion, especially by the people w h o d o n ' t have the w e a p o n and think any use of it is u n l a w f u l .

The United States and the World

371

International Law Coming back to the basic question, how international law is to be introduced into our constitutional structure, this is difficult. I guess Dick Falk and John Moore, as opposed as they are on many things, have agreed that the executive branch might have a special assistant, sort of an ombudsman, to tend to this job. The point I was making, when I asked if Article 2 (4) of the United Nations Charter wasn't part of the law of the land, was that it is the law of the land. The President is the voice that the rest of the world expects to be responsible for compliance with international law. I'm not sure a constitutional or structural change is required. Maybe just some modifications or administrative staffing. But the real problem is how to infuse these notions of international law into the whole community. I've been working on a book on human rights, using all the new conventions and customary law in the United Nations. To make out a law of human rights we have to draw upon the common principles of mankind, the national constitutions. I'm astonished to see how little the lawyers in this country use international law; there's case after case where international law is relevant, but the lawyers apparently never even think of it. This is a problem that transcends the use of force. It is the whole problem of the maintenance of order within our own country, bringing international law to bear on it. Lipson: If we take the question to be whether there is a developed consensus on the illegality of the use of force as an instrument of national policy, my answer will be " n o . " Certainly not yet. But first I'd like to pick a quarrel with the question. Some of us have been assuming that once there is a developed consensus, that settles it. If our constitutional history has any lessons, one of them is that a strong, developed national consensus is not thereby decisive. Mr. Holland has reminded us of the Kellogg-Briand Pact. Perhaps in 1929 or 1930, had the question been asked, the answer would have been that there was a developing consensus. Now we are wiser in the ways of public opinion and the sophistication of government officials, or we think we are. Our paper distinguished between the views of the people and the views of the elite. Even there, it's not quite so easy. I'm not aware of any definition of "elite" that would exclude Dean Acheson. Yet we all remember that famous statement of his, in the proceedings of the American Society on International Law after the Cuban missile crisis, 26 that when the sovereignty and security of a great power like the United States are at stake, legal issues go out the window and the real issues take over. Acheson was not representative, but his view has to be taken into account. If we try to approach an answer to the question by asking whether the amount of state-supported violence in the world has declined, and if we are not blinded simply by the absence of nuclear war and the absence of conventional war involving the United States, then we'd have to conclude that there has been quite a lot of state-supported

372

Committee

IV

violence, not least by the United States, under the umbrella of nuclear deterrence, and accompanied by a vast rise in the amount of elite public opinion which says resort to the use of force is illegal. Sanction Processes M r . Dickey drew analogies from constraints on the use of force in domestic situations, especially in the family, school and domestic criminal law. I'd like to take off from his observations by pointing in our field to the weakness of the sanction processes. T h e machinery available to afford an authoritative, official, coercive, sanctioning determination of the legality of a given use of force is defective on an international plane. None of this means that all we have is cynical, self-serving statements by power politicians who manipulate their military while making pious statements of normative content. O n e recalls the episode of the Cuban missile crisis, in which even those who thought it was a superpower confrontation had to take into consideration the use of international law arguments by the Americans vis-a-vis the Russians. W e have been talking as though the United States ought to consider its policies with respect to the governmental organization for foreign affairs action without always considering the views of other countries which affect our own. The issues paper pointed out the discontinuities between the organization of our government and the organization of other governments. W e ought not to suppose that we can dominate the development of international law in the normative sense by unilateral decisions. W e are no longer as dominant as we thought we were in the 1950s, and leadership is not necessarily the same as dominance. O u r executive, our legislative, and our public opinion leaders have to be aware of the limits on the reach of their writ, and of the duality of their functions as trustees of the national interest and custodians of enormous power. Jessup: My approach to international law is uneducated and antediluvian. I don't think or talk in terms of expectations; I don't even use consensus in the way that Leon Lipson does. But it seems you certainly want to look at the U.N. Charter as a whole and emphasize Article 51 along with Article 2 (4). As to Acheson's famous remarks about international law and sovereignty and risk, I recall Elihu Root's famous statement that international law is not like a teacup which, once broken, is irretrievably ruined. T h e fact that you have these breaches of international law is no evidence that the rule does not exist. If you take the way restraints develop in the international community, one is influenced by what John Dickey said about how constraints develop in other human communities. The process isn't much different in the international community. Acheson was, in my opinion, saying in that speech to the American

The United States and the World

373

Society, "In this situation you disregard the law." He didn't say it isn't the law; he was saying you disregard it. My general answer to constraints on use of force is "yes." People think it's a long time since 1945, but it's really short in terms of international developments. It is premature to assume that no international legal rules have developed along these lines, or that they would in the future be even less effective than they are now in terms of constraints. Ehrlich: The answers "yes," "no," and "maybe" have been given to a question that seems to have been restated in different terms. I thought the issue was: haven't there been changes in international law not contemplated by our constitutional framers? If that is the question, the answer is "yes," but no more changes than have occurred in other aspects of political and military matters on the international scene. Indeed, there have been far fewer changes in international law than there should have been. The issue may be most sharply focused when we get to the question of supranational federal arrangements. I am not nearly as strict a constructionist on the constitutional level as the paper would suggest. Indeed, the range of different kinds of arrangements in the nuclear arms control field for dealing with international affairs suggests a variety of approaches to the kinds of problems that I expect will occur in terms of supranational arrangements. Focusing particularly on the use of force, whatever can be done should be done to encourage attention to that most important norm of the charter, Article 2 (4). It has not precluded and will not preclude an international delinquency any more than domestic law has fully precluded juvenile delinquency, but to say that it hasn't worked is a vast overstatement. The question for the future, I hope, will be: how can we find ways consistent with our charter to give content to the U.N. Charter? What kinds of processes within our executive, legislative and judicial branches will work? An executive branch that cares—sadly, I don't think we've had one for a period of time—working through international organizations, can provide a good deal of content. It's particularly important that it be given, because while state-supported violence in the world certainly continues, its character has changed much more toward civil strife in the last decade. There is, sadly, every indication that civil strife and issues of foreign intervention will be with us for some time to come. The need, therefore, is underscored for constraints on foreign intervention in civil strife in our government as well as in other governments. This brings me back to the notion that congressional involvement in that process is not only desirable, but possible, and that the War Powers Resolution was an affirmative step in that direction. Norms and Uses of Force Talk: My first point has to do with the so-called small exceptions: humanitarian intervention, anticolonialism, and allegedly il374

Committee

IV

legal occupation. T h o s e norms in the charter did not actually preclude community-endorsed state violence. You may not like what the community is endorsing, but there is a difference between the modern effort of the international law to prohibit governments from unilateral decisions about the use of force and exercises of more collective judgment when the use of force is appropriate. Unlike a lot of people here, I view as something generally positive the United Nations distinction between authorized and unauthorized uses of force. W e need change as well as stability in the world. Basically, the kinds of changes that have been promoted in the last twentyfive years have been on balance positive, and have promoted more independence, more self-determination than previously existed. O n the Acheson remark, one often exaggerates the significance of a remark like that coming from such an important figure in American life, who had such a gift for the flamboyant articulation of his views. All law is rather irrelevant to extreme situations. It applies just as much to the role of law in periods of severe crisis where there is a firm governmental tradition. T o point that out in the international context is to belabor the obvious, and it's only because international lawyers tend to be defensive that they rose in such solidarity to the bait. M y third point goes back to the analogies between the growth of traditions in our own civic order concerning the use of violence, and whether this is a learning experience that is indicative of what's taking place within the human community. M y view is that it is, but that unfortunately there are contradictory tendencies exhibited. Alongside the developments you point to is an increasing arming of many domestic societies, increasing militarization of the governance process in m a n y parts of the world, and an escalation in the technology at the disposal of the police in enforcing order within the communities. T h e same thing has happened in the international community. Together with the rise of the normative traditions has been a set of contradictory tendencies, the legitimacy of the use of force, and the technology with which force is used, making its use much more destructive. O n balance, however, there is a cumulative drift that does support a positive learning experience with regard to the legal prohibition on uses of force. W e tend to take too short a time horizon. W h e n one is really talking about changing the basic role of war in human affairs, one has to think in terms of centuries, not years or decades. T h e fact that there have been violations isn't inconsistent with the broader historical observation that there is a definite discontinuity in attitudes toward the use of force on the state level. This discontinuity is translated into formal legal terms which are acknowledged frequently by statesmen and leaders. If one is thinking of the next century, it is desirable to reinforce that cumulative drift in the direction of having our leaders take these kinds of normative aspirations more seriously. M y view has always been that the reason to adhere to these norms is basically for our self-interest. In other words, I've taken the position

T h e United States and the World

375

that given what the Soviet Union is doing, we would still have been much better off in the last twenty-five years if we had seriously tried to apply the norms that we believed important for international society as a whole to our own actions. This kind of self-restraint promotes, rather than retards, the pursuit of national interests under present international circumstances. Obviously, there can be disagreement as to what those norms applied to a particular situation require; but, nevertheless, the notion that you're better off as a nation because you can violate international law doesn't seem well-founded in any kind of realistic assessment of the longer-term tendencies in human affairs. A context of long-term realism would dictate a much more serious attempt to integrate these norms into the political consciousness of the society. It is this which seems to be the principal challenge: can we create the kind of process that spreads the basic wisdom embodied in these norms in such a way as to influence the leadership and public opinion in our society? Because the United States is such an important actor in the world, inevitably, if we take these things seriously, it will have a tremendous effect on the way others act. What I'm saying is equally true for other societies in the world; they rarely have much to gain in the present world context by illegal uses of force. Henkin: It was said that I was "making room" for some exceptions allowing use of force. I wanted to clear that up. I don't make room for them. In my view, there were and should be no exceptions, short of a narrow self-defense one. What I was suggesting is that the process has thrown them up. It's important to recognize that they haven't been accepted as widely as perhaps my statement might have implied. Humanitarian intervention has been involved once—in Bangladesh. A few of my professorial colleagues thought that was great, but I'm not sure even that has been accepted widely. An exception for the occupied territories has not been accepted. It is true that the international system intended to distinguish between a unilateral act and community-approved resolutions. The trouble is that the community now is approving them on principles other than those reflecting the spirit of the charter; namely, on political considerations. Nuclear Weapons and International Law Chairman: I agree that Nuremberg, the Pact of Paris, and Article 2 (4) have to be looked at as a continuum. People forget, particularly in the high rhetoric of the anti-Vietnam movement, how much of a pure, positive law Nuremberg was. You had the Pact of Paris, you had a series of conventions dealing with treatment of prisoners of war and people in occupied territory, and a generally recognized view that at least those later conventions were subject to military enforcement. There could be good argument, and some have been made, for the Pact of Paris. You had the term "a crime against humanity," which was one of the greatest put-ons in history. An act of crime against

376

Committee

IV

humanity is defined as a whole group of crimes when committed in connection with another crime. The primary purpose of putting it in the charter was to make it possible to put in evidence the treatment of the Jews in Germany. Traditional international lawyers hadn't developed yet the concept of international civil rights. They wanted to be able to deal with the treatment of the Jews in Germany in connection with the war crimes review. T h a t raises the problem of what is the enforcement machinery. You're not going to get a Nuremberg situation too often with a major war and an unconditional surrender. I agree with what's been said about 2 (4) and the U.N. Charter. Lou Henkin thinks that the exceptions should be narrow, but in fact the international community hasn't even fully accepted the charter. Let's deal with whether there is a question of a special vedette with respect to nuclear weapons. Clearly there is in one situation. In a defensive action, is the use of nuclear weapons within 2 (4)? It isn't just a use of force. The second you see the mushroom cloud, it's pretty hard to start making that argument. Is there a general rule about violation of international law by the use of nuclear weapons? There's the question of strategic deterrence. The name of the game is to prevent a major strategic nuclear exchange from happening. If this ever happens, your dissatisfaction with the forum for adjudicating disputes will be rather understated. O n e of the beauties of the nuclear deterrence is that you really don't know exactly what the other guy's is like. On the main strategic deterrent, I'm not for spelling it out too much; except for being sure it's in presidential power. Now, what about the other nonnuclear weapon countries? It is true that nonnuclear powers say that it's a violation of international law to use nuclear weapons against a nonnuclear power. I don't know if that's ever reached the stage of a consensus; I know the U.S. government has never accepted it. Is there a developed concept of international law about the use of nuclear weapons against the nonnuclear power? I think it's getting there. There's clearly a developed concept of nuclear weapons that you can't use nuclear weapons and say, "I'm sorry, it didn't come under Article 2 (4)." N o w I personally regard the supposed control of nuclear war against the Soviet Union that the military is developing as utter madness: "We're just going to hit your missile sites, Buddy, not you." I consider that irresponsible to the point of madness. It's just not going to happen. The only qualification is to keep alive the N A T O structure, which is still very important to us, and to avoid a greater danger of a nuclear war. Maybe I spent too much time trying to persuade the German government to sign the nonproliferation treaty. Maybe I'm too sensitive to that. But I consider that in some ways a greater danger than a slip-up in the N A T O front, because I think the Soviets' reaction would be absolutely ghastly.

The United States and the World

377

Clark: Should we discuss whether the doctrine of nuclear deterrence is obsolete, as Pugwash27 is said to have resolved within the last few months? Executive Agreements Chairman: We might try to get some further sense of the meeting on foreign policy and the separation of powers. There are two suggestions to allow Congress a greater role: one is the legislative veto, and the other is selected use of traditional congressional powers such as appropriations. There has been a good deal of agitation about executive agreements. One of the superagitators is one of the most mild-mannered senators I've ever known except when he gets irritated, Clifford Case. He thinks the Case Act, 28 requiring the President to submit to Congress international agreements other than treaties, has been obfuscated, not complied with. He is opposing the treaty on treaties29 because only an international lawyer would know that violation of a local constitution invalidates the treaty. Senator Case wants to put in a reservation stating that the U.S. President lacks unilateral authority to make executive agreements as opposed to treaties. He feels other nations ought to know about this constitutional limitation. The other reaction to this is Morgan-Zablocki. The basic bill says the President can't enter into an international agreement, other than a treaty, without first transmitting it to the Congress. If after sixty days both houses haven't vetoed it by concurrent resolution, it then becomes effective. My own reaction to this, when I first testified before Sam Ervin about three years ago, was that it is wrong in two ways. With the large number of executive agreements, so many of which are approved by Congress, this would make it that much easier for the executive to get them through. I said, "What are you guys trying to do, give us a piece of cake here?" We counted the years I spent on the St. Lawrence Seaway trying to get an executive agreement approved. It was up on the Hill for twelve years. Had the Case bill been law, the seaway agreement would have gone into effect the first year. On the other side of the coin, if the President really has the power to enter into such an agreement under the Constitution, Congress can't take it away from him by contrary resolution. What about the more traditional methods by which Congress can support or undercut an agreement? Dick Gardner raised the situation where the President signs an agreement to provide certain money, and Congress hasn't approved the appropriation. Are we prepared to say that an international commitment to provide money automatically appropriates the funds? It seems far out. Our chances of getting that, even if we wanted it, are fairly obscure. That could lead to a change in the Constitution, that money could be appropriated without an act of Congress. Oliver: With regard to one-man subcommittee pressure from the

378

Committee

IV

W a y n e Hays types, we should have your explanation of the State Department reauthorization problem. D o you regard it as being a pejorative vis-a-vis the foreign office of the U.S., as I do? Chairman: W e who have spent many years before appropriations committees speak our own jargon. T h e reauthorization is not required by the Constitution; it's required by the rules of the House, primarily, and the Legislative Reorganization Act of 1 9 4 6 . 3 0 It may be a little bit worse when we have a new budget act. You can't just go in and say, "Please appropriate me some m o n e y . " You have to have an authorization bill passed by the legislature. For many years, the Department of State had been authorized appropriations under the bill setting up its structure. It was a permanent authorization, so all it needed to do was to persuade Mr. Gruening to give it the money. If he didn't, then persuade Mr. McClellan. W i t h those two easy political tasks you were home free. I always envied that, because during the period I was in A C D A , we did not have a permanent authorization, but had to persuade Congress for an authorization every other year. W e were in the same appropriation bill as State. All military procurement bills and all State Department buildings programs have to jump two hurdles. One wonders whether this double hurdle, as it has worked out with the military procurement bill, is any worse than a single hurdle in each house. But there's no doubt about the impact of the authorization and appropriation procedure on State. Ehrlich: With all deference, I think the authorization matter is a quite trivial symptom of a much more serious problem. Chairman: I agree. Congressional Involvement Ehrlich: It may not be trivial to other agencies that may need a permanent authorization in terms of status. But the problem of involving the legislature in international agreements is a much deeper one, by no means unique to our legislature. It's true in Canada. In the particular case you raised, Congress is saying: " O k a y , we can't be involved in making them, but, by God, we ought at least to be able to be involved in stopping them." How does the legislature get involved in the making of international agreements in a useful, constructive way, given all the problems? W i t h a bill like Morgan-Zablocki, or when you have international agreements like the coffee agreement, Congress is saying, " W e ought at least to be able to stop this agreement from going forward." T h e reaction of the executive branch normally is: " I t is unconstitutional, and you can't do it." If you read T o n y Scalia's memo, 3 1 what he says is that the executive should always consult with Congress; that it's best to consult. He says that with the best of intentions. But when one sees what actually happens, it's not surprising that many in Congress get frustrated. How far, under our Constitution, can Congress go? Can a concur-

T h e United States and the World

379

rent resolution nullify any agreement entered into by the executive branch? Are there steps short of that? In the coffee agreement, Congress said in the implementing legislation that the President signed: " A n y time the price of coffee goes below X level, then the United States shall get out of this international agreement." In my own view, that is within the Constitution. But the question is, how far along the spectrum between the Zablocki bill, on the one hand, and the legislation I just described, on the other, can the Congress get itself involved in the process? M y own sense is, pretty far. While the desire to get involved is a symptom of something much deeper, namely, a sense of concern about the conduct of foreign policy, it does have a structural consequence with definite constitutional implications. I hope we might say something about those constitutional implications. Clark: Let's have for the record a succinct definition of the difference between a treaty and an executive agreement. Chairman: By and large, I have opposed the dichotomy between treaty and executive agreement. It is quite misleading. International agreements break down into roughly four categories: International agreements authorized by treaty. The classic case of this is the Girard case, 3 2 wherein the Supreme Court said there was a treaty function in advance, and thus no undue delegation of authority had occurred. The next batch of nontreaty international agreements are treaties approved by specific acts of Congress, either in advance or subsequent to the signing. In all the cases where it made a difference, the executive powers picked up where the treaty power stopped. There's another type of agreement whereby the Congress votes a general authority to negotiate agreements, such as civil air, bilateral trade or postal agreements, for example. Then, finally, there is the executive agreement, whereby the President acts on his own inherent executive authority as President of the United States. Oliver: Potsdam. Chairman: Maybe. Is that really an international agreement? What about Henry Kissinger's agreements to provide money to North and South Vietnam? There has been a small, specific caveat, particularly in trade agreements, wherein Congress gives authority, but limits authority by reserving the right to withdraw it if it is not satisfied with a term in an agreement. Despite screams of unconstitutionality, the administration has accepted that approach in trade bills. The real problem is, is it good for the Congress to create a new category of agreement that absorbs all the other nontreaty agreements? Congressional Veto But our main category is treaties requiring approval by two-thirds of the Senate. Executive agreements, in the future, would be subject to congressional veto by concurrent resolution. There have even been

380

Committee

IV

some bills to provide for a single-house resolution; if either house objects to it, it could fall. McDougal: It's been thirty years since I worked with these matters. W h y is it that the President can't veto a concurrent resolution? Henkin: The Constitution says so. In effect, it defines a concurrent resolution as one which is not subject to veto. McDougal: But what is the scope of a concurrent resolution? Henkin: Ah, that's the point; it doesn't tell you what you can use concurrent resolutions for. McDougal: It seems incredible that they can use it to kill the President's powers. Chairman: The trouble is that they've given the President power to enter into agreements. If an agreement has been entered into, Congress can't say, " W e decided we don't like it." To protect against this, they say, "Mr. President, if you want to enter into an international agreement other than a treaty, you can do it. But, if we pass a concurrent resolution saying it's bad, it doesn't happen." The President either signs the bill or the bill is passed over his veto. Then, pursuant to that bill, he enters into an executive agreement. McDougal: And you assume that's an area in which he has no independent powers? Henkin: That's the assumption. Chairman: Where he has independent powers, the Congress can't do that. Only about 3 percent of international agreements other than treaties are independent power agreements. The real question is, is such a veto by Congress a subconstitutional development that we would look on with praise or with disapproval? You have this double-stage operation for nonconstitutional agreements in the future, all of them entered into pursuant to either doublehouse veto or single-house veto. Personally, I'm opposed. McDougal: I suppose as long as Congress is making the policy, the procedure would be hard to attack. But insofar as it tried to control the day-to-day conduct of foreign relations, it could all come under constitutional attack. Henkin: This problem has arisen apart from the executive agreement problem in connection with delegated authority. W h e n Congress gave the President the right to grant Lend-Lease, it also said, " W e reserve the right to take this back by concurrent resolution." In other cases they reserved the right to take it back by single resolution— that is, one house—or to take it back by committee vote. So, we are asking to what extent an executive agreement is different from delegated authority. W e may want to discuss also withdrawing delegated authority by less than a regular legislative enactment. McDougal: The question would resolve to what delegated authority relates to the conduct of foreign relations, and what doesn't. Henkin: That's right. McDougal: Most of the Lend-Lease matters did relate to the conduct of foreign relations. Henkin: But that doesn't necessarily mean it's solely within the

The United States and the World

381

President's executive power, at least if you're talking about foreign trade. McDougal: The day-to-day negotiations and exchanges couldn't possibly be a congressional function. Henkiti: Giving weapons to another country? McDougal: Yes, giving weapons. Rubin: What about the trade field? Congress itself used to set the tariffs. McDougal: This does not involve negotiations with representatives of other countries. Rubin: Well, as you go through the trade process, you sit down with representatives of other countries. McDougal: The congressmen do this? Rubin: No. But Congress could conceivably argue that they once had the power to decide on individual tariff items before the reciprocal trade agreement program began. There was so much detail that Congress had to delegate the power. McDougal: Because they can control the policy doesn't mean they can control every little step in the execution of the policy. Rubin: It's sort of an unconstitutional conditions argument. Chairman: This procedure got started in the reorganization act field when the Congress said to the President, "You can change the structure of the government, but we want to review your proposals." That was the first time the camel's nose got under the tent. Then it was applied to Lend-Lease, a form of foreign aid; then finally to the atomic energy field, and now to the treaty field. Concurrent Resolutions Well, I think the sense of this group is that if there's any direct presidential power, the Congress can't say no by concurrent or single resolution. We will now not say precisely what the direct presidential power is. Do we look with pleasure or concern at the gradual development of this procedure, whereby—in that fairly large number of executive agreements that are either entered into pursuant to an act of Congress, or later to be approved by Congress—an agreement goes into effect unless it has a concurrent resolution veto? Is that a good constitutional development? McDougal: We look with concern unless it involves only the framing of broad policies, not day-to-day operations. Oliver: My concern is very much that which Dean Ehrlich mentioned. The attitudes that underlie these actions are somewhat petulant efforts at congressional participation in foreign affairs decisionmaking. The problems here are symptomatic of a malaise linked to the lack of an effective foreign affairs bridge over separation of powers between the executive and legislative branches. From the standpoint of our relations with the rest of the world, at a policy level but below the constitutional level, it certainly isn't good 382

Committee

IV

to negotiate a set of GATT agreements and risk their being invalidated by Congress. The foreign countries—no matter how knowledgeable they may be about our system, and how aware they may be of the Vienna Convention on the Law of Treaties provisions about internal legal limitations—cannot clearly estimate what the ultimate effect of the negotiation will be. A negotiator is not in good shape if what he is negotiating is something he probably can't deliver. Chairman: You have to figure out whether you can deliver. To the extent a negotiator can't deliver on his negotiations, he isn't actually any different from anyone else. Oliver: Let me rejoin on that. Before our trade delegation goes from the Tokyo round to Geneva, U.S. negotiating positions have gone through meticulous preparation within the executive branch. Also, signals from the Hill with respect to what will pass muster are being followed. With careful pre-preparation, the negotiations can go forward. However, a determined minority group in some committee in Congress, for some unexpected or aberrant reason, can upset by double veto this fairly elaborate negotiation. For example, suppose our people think they can negotiate a selling price for benzanoid chemicals? Rubin: They did. That's what they thought they could do; they got clobbered by the Congress. Henkin: I'm not sure what the constitutional power of Congress is, but the concurrent resolution threatens the distinction between treaties and executive agreements. If I were President, I would never send anything up as a treaty, for the same reason that I'd never send it up for a joint resolution. I'd rather rely on the concurrent resolution. We ought to ask, can Congress regulate executive agreements? If so, which ones? And then we might ask, should they? And then, how? We're really addressing ourselves to whether a particular form of regulation is a desirable form. McDougal: Could you tell me which section of the Constitution says that the President can't veto a concurrent resolution? Henkin: It doesn't say that, but it's Article 1, Section 7. McDougal: Section 7 doesn't say anything like that. Leech: "Every order, resolution, or vote to which the concurrence of the Senate and House of Representatives may be necessary . . . shall be presented to the President of the United States." It all depends on your interpretation of what is necessary. The negative implication is that it is not necessary. McDougal: W h a t does that mean? Chairman: We would be making fools of ourselves if we said that we think the President can veto a concurrent resolution. We would not be making fools of ourselves if we said that in view of the practice of concurrent resolutions, as opposed to joint resolutions, not being subject to the veto, they should not be used for purposes which involve fundamental matters. Henkin: Exactly. Chairman: That's the way I prefer to approach the problem be-

The United States and the World

383

cause people have been passing concurrent resolutions for 186 years. And they've never been submitted to the President. If you would accept that in practice the concurrent resolution has not been subject to the veto, we can address ourselves to the proper subject of a concurrent resolution. McDougal: I'm willing. Could you amend your statement to say that we don't think the concurrent resolution should be used to deprive the President of his power of veto where under our historic practice he has had the power of veto? Chairman: Well, that doesn't bother me, except when you say, "under our historic practice he's had the power to veto." That begs the question, too. I'd rather put the question: do we think the development of a practice under which the three traditional types of congressional-executive agreements and the one presidential executive agreement are changed to treaties and all executive agreements being subject to a concurrent resolution veto would be good? McDougal: You have one vote that it's bad. Secret Executive Agreements Falk: I'm uncomfortable with the discussion of the issues in terms of these formal categories. One category which certainly has raised concern in recent years has been secret executive agreements involving commitments to foreign governments. I'm thinking of the two Nixon letters 33 on American re-intervention in the Vietnam War that were incident, I suppose, to the negotiations of the Paris Agreement. 34 It was one of the things that aroused Senator Case's anger about noncompliance with the Case Act. There is a series of issues in the national security area where it is important to secure congressional participation. One possible commitment which would be very undesirable, if secured by presidential action alone, would be an agreement to use nuclear weapons in the defense of South Korea as a matter of government-to-government negotiation. How does that kind of obligation to a foreign country, undertaken by executive authority, fit into this discussion and our alleged consensus? If it seems like it is something within the President's authority, then a constitutional amendment is certainly needed. Chairman: Have any of you recently reread the various agreements, such as N A T O and SEATO, wherein an attack on one is an attack on all? That means we react pursuant to our constitutional processes. But who's going to tell us what our constitutional processes are? Senator Case's bill has been evaded. You can amend the Case Act with a proviso that an agreement cannot be relied on as "the commitment by the United States to which the United States is bound," and that the President is to bring the content of this bill to the attention of all countries with whom he conducts international negotiations.

384

Committee

IV

Now, how do you handle the problem of the Thieu-Nixon letters? How would you handle the problem of an agreement to use nuclear weapons in South Korea? How do you handle the agreement to use nuclear weapons in the N A T O defense structure? Talk: It would be the same issue regardless. There are some agreements on a state-to-state basis. Supposedly, there was one dealing with Thailand for a while. T h a t kind of agreement should not be kept out of the public political process. Does the Constitution allow it to be kept out of the public political process? Henkin: By "public political process," do you mean reporting to congressional committees in secret, or do you mean public political process? It might be subject to the Case Act in secret. Chairman: I remember being struck when reading The Guns of August35 by the way contingency plans can gradually become commitments. W e had a bit of the same problem in setting up SHAPE. W a s that just organizational planning, or did that involve a commitment? There is a penumbra here. W e can't ever say that we could never have a contingency plan. But there is a penumbra where the plan suddenly becomes a commitment, in which case you're required to report it under the Case Act. They should put some teeth into the Case Act. Ehrlich: Do we see an emerging effort by Congress, in particular through the use of this instrument, to be involved in making international agreements? M y answer is " y e s . " It's a good thing, with some exceptions. I certainly hope there wouldn't be a consensus opposing that effort. Yes, there have to be lines drawn. I realize that you disagree with the desirability of this legislative involvement. It doesn't seem in practice, so far, to have been particularly abused. It has indeed done some useful things. Henkin: T h e question is, involvement in what way? T h e Case Act is involvement, and if you strengthen it, you have congressional involvement. Myres McDougal suggested involvement in developing broad policy outlines in advance. In trade, which is clearly in the congressional domain, no one would quarrel with that. But if you're talking about involvement in all executive agreements, and if you're talking about involvement by this particular device of concurrent resolution, then I have some serious problems with that. McDougal: Suppose the agreement is about the monitoring of nuclear weapons around the world? Would you want Congress participating in or even knowing about those agreements? Chairman: T h e y do. McDougal: Well, they don't know the details. Henkin: They always have. Chairman: W h e n I went back into the executive branch in 1 9 6 1 , I was interested in knowing the current status of the so-called bilateral nuclear arrangements, whereby U.S. nuclear weapons were attached to N A T O - o w n e d delivery systems. The Joint Committee on Atomic Energy knew all about that. In the nuclear field, because of the

T h e United States and the World

385

McMahon Act 36 and the idea of an oversight committee, it's awfully hard to say they shouldn't know about nukes, because they do. McDougal: Are you sure the Russians and Chinese knew that they knew? Ehrlich: I would draw the line between Congress being involved in a specific situation, and the other extreme, in all executive agreements. In the specific situation, if X happens, the United States' participation in the agreement ought to terminate. This is different from "Any time we think it ought to be stopped we'll pass a concurrent resolution." There seems to be more to be said in favor of the former. W e could say at the outset of our entry into a particular international agreement that we are worried about this problem. If so and so happens, then automatically the United States' participation ceases. That seems more acceptable. McDougal: If they stay within their own powers and don't encroach on the President's. Ehrlich: Yes, but isn't that the issue? McDougal: Well, the President certainly has some independent powers as commander-in-chief and chief executive. Ehrlich: W e agree. The question is, in what areas? Limits of Congressional Involvement Rubin: Could we narrow the issues a bit? It seems this business started with concurrent resolutions. The use of the concurrent resolution to achieve a legislative result is the gravamen of the difficulty. Leaving aside the question of congressional involvement for the moment, when the end result of action taken by Congress is an enforceable law, the concurrent resolution technique of blocking agreements is not appropriate. Then, basically what you have is a legislative act of the United States in all its majesty and legislative authority. You shouldn't use the concurrent resolution technique in that situation. Congress would still have power, by way of a joint resolution which is subject to veto, to say, " W e don't like your exercise of the power which we have previously granted you." The basic question is congressional involvement. The President certainly has some constitutional authority in the foreign affairs field to receive ambassadors, for example. How do you define the limits of that authority, as well as the limits where Congress has power, or should have a role, whether it has a constitutional authority or not? Chairman: What we're talking about in Morgan-Zablocki is Congress, within a set period, saying, "All bets are off." You can describe that as a legislative veto. Where you have a treaty, of course, you have a veto by one-third plus one of the Senate, which doesn't have to exercise a veto within sixty days; it can sit on the matter for some time. The fact that that procedure is complicated is the reason the concept of the congressionally-approved executive agreement developed.

386

Committee

IV

W e can't express concern about the legislative desire to get involved. That there is that much concern indicates that any proposal we make to prohibit it would have all the effects of whistling Dixie to the Grand Army of the Republic. On the other hand, as political scientists and lawyers, we can express views as to how involvement can best be expressed. I have no doubt that the presidential executive agreement is being suppressed by veto, and that's wrong. McDougal: If this is the attitude you're going to take, I'd like to make an individual statement. The gentlemen who sat here 200 years ago thought it most unwise to try to define in detail the powers of the President; they preferred to leave this to future exigency. It's very unwise to put limits on the President. This will work only if each branch of the government has a decent respect for the competencies of the others. I would view with concern these recent legislative encroachments. Chairman: I'm not sure I would define them as "legislative encroachments." Your statement and mine are not that far apart. The current procedure of setting up a structure, even though theoretically you could make a constitutional argument for doing it, will be resolved fifty years from now in a congressional-legislative relationship for everything other than treaties. That is not very good. But I will also say we ought to do something about putting some teeth in the Case Act. Joint Resolution Dickey: Just theoretically, would we be as deeply perplexed if the treaty power called for making treaties by joint resolution of Congress? Chairman: Well, we face that all the time. Many large international agreements were entered into pursuant to congressional approval. Dickey: I know. I'm talking about a different proposition. McDougal: The answer to that is " y e s , " because, as with the concurrent resolution, the joint resolution would mean operating by majority vote. I would be delighted to get a majority vote in both houses to approve agreements instead of this minority veto. Dickey: You may be taking that a little fast. You've got to give some regard to the status of the treaty under the treaty power. It seems to me that it is not just legislation; it is a review of an international act. Frequently, it's legislation in its outcome, but it's also an international act which is, by the Constitution, the law of the land. McDougal: This doesn't mean that all agreements have to be reviewed that way. Dickey: No. I'm just putting out a theoretical question to cast some light on the perplexities of the present situation. They seem to be very real when we come to the use of the joint resolution procedure for the authorization of agreements, not primarily as legislation, but simply as international engagements.

The United States and the World

387

Chairman: We've done it in some fairly important international acts. O u r joining the Food and Agriculture Organization, the World Bank, the Monetary Fund, was not done by treaty. McDougal: Nor the St. Lawrence Seaway. Chairman: The St. Lawrence Seaway was a whole different problem. The trouble was that the St. Lawrence Seaway for twelve years was argued on the basis of a joint resolution agreement that would have approved both the seaway and the dam. That got licked. Finally, in the last days of the Truman administration, Jack B. Tate discovered that we already had authority to improve the dam and the boundary waters to it. So the legislation that went up was just for the seaway. That meant that all the utility interests were taken out of the game. Had we had the Morgan-Zablocki bill, we'd have had the agreement in sixty days. After I told Sam Ervin and Clem Zablocki that, they gave me this "beware of Greeks bearing gifts" look. "You mean you're telling us that it makes it too easy for the executive? W h o are you talking to?" They didn't believe it. It's a sound structure, whether it makes it too easy for the executive or too hard for him, but it's a bad way to reflect a discontent. Dickey: There is no doubt in my mind that the two-thirds rule for making treaties has created an endemic sensitivity in the Congress which has resulted in some unwise moves for getting congressional involvement in these matters. I wonder whether we would have got into this position quite as deeply had the executive not utilized the joint resolution procedure and the independent executive agreement as extensively as it did from 1934 on. The point where the joint resolution procedure really finally broke through as a systematic device for prior congressional authorization for international arrangements was the Reciprocal Trade Agreements Act of 1934. You can work that under the treaty power or under your joint resolution. And, as you said, it is being used both ways today—prior authorization and subsequent approval. I want to ask whether at some point, as we move increasingly into the necessity of international arrangements for the accomplishment of national interests comparable to domestic legislation, somebody is not going to have to face the fact that the two-thirds rule for making treaties is an invitation to, at best, unnecessary political argument and distraction. This can be a severe handicap to deliberation on the merits of the policy. W e saw this happen when the World Court Protocols were defeated in 1935. 37 Let's not imagine for a moment that this is a problem primarily of one party having control of the presidency and one party having control of the Senate. In 1935, Roosevelt had more than a twothirds majority in the Senate, an occurrence for only the second time since the Civil War. Both parties had in their platforms the endorsement of the World Court Protocols. Even though the treaty got a majority vote, it didn't get the two-

388

Committee

IV

thirds, in large part because the two-thirds rule itself invited opposition as a way of giving Roosevelt a tumble. You just can't avoid that potential political hazard. As long as you've got to meet that twothirds rule requirement, it's going to load cooperative foreign policy actions with a potential for prerogative and partisan controversy. It has a serious impact on the willingness of State Department personnel to go to the secretary—let alone the secretary to the President—with propositions requiring a two-thirds vote. Hull, who was as politically shrewd as any Secretary of State in modern times, simply would not contemplate it as a procedure for tariff negotiations. It's well for anyone approaching this problem seriously to reckon with the possibility that at some point, to have a proper procedure for dealing with our international arrangements, we will have to get this two-thirds rule changed. Schulhofer: W h a t specific subject-matter areas are seen as being inappropriate for congressional involvement? W h a t types of techniques of involvement are seen as inappropriate? And, if possible, I would find it helpful if there could be some articulation of what the policy disadvantages of those kinds of involvements seem to be. Chairman: There's a sense that the Morgan-Zablocki bill sets up a structure that most of us don't like. O n the other hand, how would we like it if we substituted a procedure that doesn't have a concurrent resolution veto, but requires affirmative action of both houses? You're giving the President a real present there, aren't you? Independent Executive Authority Would it be good or bad, since we know that no act of Congress can resolve the extent of the President's independent executive power, to set up a procedure for judicial determination of that? O r is that involving the courts in something we ought to keep them out o f ? McDougal: No. Something should be said by the courts. It will be like Milligan's case, 3 8 only this question would be long after the President would have acted in emergency. You could review and discuss it now at a time when there is no crisis. Falk: M y bias is in the direction of greater, rather than lesser, legislative participation at this stage in the historical process. M a c McDougal's comments do not take adequate account of this period of tremendous executive usurpation of the generally understood notion of separation of powers through the use of secrecy and manipulation of information. W h a t is now happening is an attempt to rectify that sense of imbalance. Part of the health of the constitutional order is precisely this actionreaction process. Even though one might not like it at a particular time, the process is in itself a healthy and desirable one. M y own sense is to encourage the tendency toward legislative encumbrance of executive discretion, particularly as it involves secret national security commitments. I will not comment on whether one needs to isolate that problem substantively in order to avoid bringing chaos to the whole constitu-

T h e United States and the World

389

tional arrangement, or whether that should be handled as a constitutional amendment. There is too much mythology about needing secrecy. Much of it is for the purpose of domestic political support, and not to avoid exposure of the country to potential foreign adversaries. Clark: It seems to be the consensus of this group, which I share, that the treaty is the hardest way to go because of the two-thirds requirement. Therefore, wherever he can, a wise President will ignore the treaty route. But the joint resolution of Congressionally-approved executive agreements is a sensible procedure. The wise President would be well advised to follow that route. Where he makes an executive agreement without going to Congress at all, and particularly where secrecy is involved, he does it at his peril. That would not be the route most of us would recommend. Does that make sense, or is it too superficial? Chairman: Well, it's not superficial; it's a little bobtailed. We know how congressional action is taken, if it's taken in advance. Yet it probably should be in advance to obtain broad guidelines, as in the case of most agreements, rather than with the concurrent resolution veto. If it acts subsequently, of course, Congress takes the agreement as it finds it, while the President, if he acts on his own, does so at his peril. There's been a general recognition by the courts that he does have some authority. Clark: Not well defined. Chairman: Not completely defined. Rubin: "The executive power shall be vested in a President." Chairman: The executive powers have been vested in the President. Most executive actions have been in truce agreements or recognition of foreign governments. The question is not, can he make a truce or recognition, but what are the limits to his actions to obtain the truce or recognition? One example, controversial at the time, but not too much right now, was the recognition of the Soviet Union. There isn't anything in the Constitution that says the President must receive an ambassador and recognize his claim. The Court said he could. The question is, can the President make a commitment to supply millions of dollars of economic assistance? Henry Kissinger tried, but didn't get very far. Jessup: When you're saying "truce," do you mean ending war? Chairman, Yes, cease-fire. Jessup: No, not a cease-fire; a complete declaration that the war is over. Chairman: Does that mean a peace treaty? Jessup: It may. McDougal: Do you mean agreement, too? Chairman: How would you characterize what we have done in Vietnam? You can end hostilities by a simple cease-fire. We ended the

390

Committee

IV

war in Germany not on the basis of treaty, as you know, or congressionally-approved treaty, or agreement, but by a simple declaration of Congress. Henkin: Both wars. Jessup: You can have legislation saying that there is a state of emergency during the war and the President may declare when the state of emergency is ended. Rubin: If one is talking about the ebb and flow of authority and power between the branches of government, doesn't one really have to talk about the kind of ebb and flow in a specific area? In the area of secrecy, I would agree that perhaps there are attempts to evade, a sneaking around. I would agree that a lot of what is classified as secret is secret only from the American people, and should not be. On the other hand, the President is given the authority to execute the laws of the United States. As I understand the Federal Election Commission case, the President has to do something and Congress cannot interfere with that. Then you get back to the area of trade, and the question of concurrent resolutions of Congress. Are they violating a constitutional mandate? They've attached a little curlicue on that part of the authority. You have to distinguish between secrecy and invasion of the authority of the executive branch. It's a question whether it's an invasion by the Congress of the President's power to see that the laws shall be faithfully executed. You can't really talk about this on the broad basis of more or less power in the Congress. You have to talk about this in terms of the subject matter which is at issue. Oliver: There is some deviant or "sneaking" conduct both ways. That conduct, executive and legislative, is part and parcel of the same basic problem. There is not an available effective working relationship between the two branches. Behind it all is an endemic civil war between the executive and legislative branches, which manifests itself in many ways. A hopeful view would be to suggest that if we can work out a better institutionalized working relationship between the executive and Congress, in this field particularly, that maybe the illness will tend to cure itself. Henkin: I want to comment on the ebb and flow concept. W e ought not to assume that this is a new development. The worst deceivers in history were, perhaps, Thomas Jefferson, James Madison and James Monroe. As Presidents, they had to deceive even more because they saw their own powers as limited. This is not a new problem; I'm not going to blame it all on recent administrations. Second, I agree on the proposition of congressional participation, depending on the form. I would like for those forms of participation which do not necessarily create a bias against action to be considered here. Clark: How do you view the Louisiana Purchase? Was there congressional approval there? Henkin: Well, the "unconstitutionality" of the Louisiana Purchase

The United States and the World

391

was not what everybody thinks it was. The constitutional question was whether the United States could acquire the area in the first place, by any means. Oliver: The acquisition of land was much debated in Philadelphia. Henkin: If you really want to have some fun, look at what Jefferson, Madison and Monroe concealed, what they prevaricated about. Oliver: With the help of probably the best Secretary of State we ever had. Henkin: John Quincy Adams. Need For Congressional Participation Lipson: Let me ask Dick Falk about his notion of the cyclical functions and abuses of the two branches. You did not seem to want to synchronize your judgment of the respective appropriate roles of the branches with your judgment of the wisdom of the result for which they separately, respectively stood. Yet, there are other times when it seems that by the device of appraising the trustworthiness or openness of the two branches, and linking that to the specific wisdom of the policies they recommend, it turns out that there's a high degree of synchrony between the result you approve and the branch which you think ought to have the most power. Falk: I'll admit that's fair, but it reflects the failure to be clearer about the role of "consensus." Part of my feeling is that national security commitments should be based on a broad popular consensus. The reason I'm in favor of broader congressional participation is that it gives some greater assurance that what commitments are made will be made with a fairly wide mandate that includes the elected congressional representatives and ultimately the citizenry. I prefer this to an executive level decision which locks the country into a process that unfolds in unexpected ways. It is part of my feeling, talking in these ebb-and-flow terms, that one doesn't have the substantive sophistication represented by the congressional initiative. So one has to choose between going along with the present distribution of authority, or trying to rebalance it in terms of greater legislative prerogative. I disagree where the decisive issue is a national security issue. If there is a negative consequence in other areas as a consequence of altering the ebb and flow, then that is the price one has to pay. Henkin: You could also distinguish security cases from others; for example, commitments of manpower, commitments of financial resources. These are forms of line-drawing which we should talk about. Clark: It all gets back to defining the lines of national security, which we haven't done. Chairman: Could we summarize? I detected in the sense of our meeting that the capacity of the United States to act in ways other states in the world community act is not quite as far out of line as our issues paper suggests. We have

392

Committee

IV

just discussed ways in which we could make it less out of line. In our discussion on secrets of state and what remains of executive privilege, we don't really think there is a particular cause for alarm as far as the capacity of the United States to engage in foreign relations is concerned. Is that a reasonably fair statement? Clark: D o you mean that secrecy is not a problem? Chairman: T h e fact is that secrets of state are not quite as highly developed here as they are in other countries, and that executive privilege has had a slight knock on the head. Clark: Does that mean that you do not consider executive secrecy a serious problem? W h a t about the C I A ? Chairman: N o ; it is the other way around. T h e issues paper says that secrecy has gone so far down the hill that we're not in a position to rectify it. I'm saying that the sense of this meeting, notwithstanding the issues paper, is that we don't see a cause for alarm. Schulhofer: You stated what I had perceived. It's not whether this impedes us from negotiating abroad, but whether it impedes other kinds of evaluations. Chairman: D o you mean that the problem was the fact that our outlook on secrecy was too narrow? Schulhofer: Not too narrow, but too broad, and that institutional arrangements should possibly be established to narrow it. Chairman: W e have a specific agenda item on t h a t : " D o present constitutional arrangements adequately provide for the participation of the citizenry in value choices related to foreign p o l i c y ? " It's fair to say, though, that the thrust of the discussion on these items was that there was no expression of concern. Secrets of state are disappearing, and executive privilege has had a knock in the head. McDougal: T h e r e was the suggestion that this shouldn't be carried too far. Chairman: Sure, but the k n o c k s on the head haven't been as serious as most people thought they were. W e have all agreed there should be increased congressional participation, but we're not sure of the form it should take. W e are more inclined to increase the participation with respect to policy definition but not to the congressional veto, whereby Congress gives and takes back. It has worked in some areas, but we were doubtful whether it should be given general application. T h e r e is residual congressional power, but how much we're not in a position to say. W e leave that to the push and pull of the separation of powers. Oliver: There are people who say that the courts have a great unfulfilled role to resolve the separation of powers issues between the executive and legislative branches. Chairman: If we're going to go into that, I suggest we summarize what we said earlier. W e were expressing a slight unhappiness about the dominant role of the military over the executive branch. W e expressed unhappiness about the way in which military expenditure levels were actually determined. W e saw rays o f hope that the Office of Technology Assessment and the new Congressional Budget Office

T h e United States and the W o r l d

393

would be means by which other priorities would have to be weighed against military expenditures. Oliver. As Dr. Kistiakowsky remarked, and the group as a whole concurred, the military establishment is not truly subservient to the executive. If it is manageable at all at the present time, it is managed in part by both the legislative and executive branches. That means that the way to deal with the military establishment is to have a combined civilian force in the executive and legislative branches do it. Clark: Yes, I think that's fair. International Tribunals Oliver: May I make a further comment before we go on? Dean Manning's question assumed that the Congress can, by subsequent inconsistent legislation, alter international obligations as far as their internal effects are concerned. Chairman: Do you say that is bad? Oliver: I personally think it's bad, but it's a serious step to say that once the President and two-thirds of the Senate make a treaty with international effect, then the lower house is forever bound. That's the problem. Chairman: What does the Constitution have to say in regard to this? Jessup: I don't think that the Constitution would hinder us in entering into regionalistic or planetary federalism of limited powers. So, to the item about no appellate review by international tribunals of process in domestic tribunals, I don't know what the paper means by "process." You have numerous cases—the Prize Cases39 in the Civil War was one—in which decisions of the Supreme Court of the United States were found by the international tribunal to be contrary to international law. While the international tribunal could not reverse the domestic decision, it could require the United States to pay damages. And you have the provision, which is now often found in arbitration treaties, that provides if the judicial sentence or the arbitral decision is in whole or in part contrary to international law, and if the constitutional law of that state does not permit or only partially permits the consequence of the decision in question to be annulled, the parties agree that the judicial sentence shall award equity to the injured party. So in terms of judicial decision, I find no difficulty in our entering into some larger, federal system. Then Covey Oliver speaks of the power "to make and enforce law." I'm not quite sure what he has in mind by "enforce." You've been talking, I think, about the European Community. I'm not clear as to what element of enforcement you have in mind in regard to the European Community. There is certainly a difference between "make" and "enforce." We provided by treaty in the U.N. Charter for the Security Council to make law, which we are bound to carry out. But the charter doesn't

394

Committee

IV

give the Security Council the power to call out troops, or anything of that kind. Oliver: The focus here is the take-off point, or the dicta of Holmes in Missouri v. Holland40 and of Black in Reid v. Covert;41 that is, the treaty power, the international agreements power, cannot be used to do that which the Constitution prohibits. I agree with what you say about the effect of the U.N. Charter on the United States as a nation among nations, and as a member of the U.N. The real question is whether our Constitution and the Bill of Rights would permit what we in our trade sometimes call an erga omnes effect. The European Community does not enforce treaties only against member states; it enforces them against nonmember states. lessup: What do you mean by "enforce"? Oliver: The European Community brings charges against the individual firm in the member country and, if necessary, in nonmember countries. The other one means just what it said: appellate review of the case of an individual or firm X. I mean a writ of error for the Supreme Court of the United States to X tribunal in the case of X versus Y. That's the problem. Chairman: In Reid v. Covert, of course, Fritz Weiner had already persuaded them that they were entitled to trial. The argument was made that we had committed ourselves not to have a trial by jury. It was a false argument, subject to military review. Regarding arguments about constitutional rights, Black said, in effect, we could not agree not to give Mrs. Covert a trial by jury if she were entitled to it by the United States Constitution, even though that trial by jury was not requested. On the other side of the coin, you have a case where she was prepared to accept the review of the domestic tribunal by the ICJ. It turned out they took the traditional route, not having exhausted the local remedies, particularly in the business area. You do have the Cirard case, where the procedures were basically fair. I'm not sure the Bill of Rights is that much of an inhibition. If we were, for example, to change the nature of the International Atomic Energy Agency, it would probably work out so they could have some form of power, although I don't think we could try Americans, let alone foreigners here, without a change in the structure. Jessup: But the thing that's not clear to me is the word "process" again. Are you testing the whole question of our participation in some suprafederal system by its application solely to human rights and processes in criminal cases? Oliver: Yes. The erga omnes effect of supranationality would, under conventional doctrine, raise Bill of Rights issues. That's what all of this is saying. I wish they didn't raise Bill of Rights issues. The reasons for putting this in here is to suggest that if, like the Netherlands, we should ever have international arrangements, we would have to modify the Constitution to permit it.

The United States and the World

395

Henkin: I think Phil Jessup is saying we really ought to distinguish Bill of Rights cases from others. If the institutions were not sitting in the United States, you might have different rules. I'm suggesting that it's a very complicated subject, but I'm also suggesting that it's not likely to happen soon. Jessup: It's in the next century. Henkin: In that case, the only consensus I would like to see is one which says that it is a complicated subject that raises many issues. It would require too much of a precise articulation of what is involved. I once tried to explore the precise complications of whether the tribunal is exercising the judicial power of the United States, or the judicial power of something else, or whether it's sitting in the U.N. headquarters or the United States or Paris, operating directly on the individual or on the state. Chairman: If you're thinking of international organization problems in the economic field, it isn't quite that bad. Henkin: That's right. McDougal: I wrote an article 42 on this twenty-five years ago when leaders of the American Bar Association were attacking the Genocide Convention. 4 3 The argument of the bar leaders was that we couldn't agree with other nations with respect to action of this country in the matter of genocide. Richard Arens and I concluded we could. W e pointed not only to the Prize Cases, but to consular courts and a half a dozen other things. Chairman: T h e " A r m y wives" have shot this down a little bit. McDougal: I've read those cases. Chairman: M y principal advice in the first Army wives case 44 was to tell Fritz Weiner my feelings as to how to handle Felix Frankfurter's objection to the court cases. Those cases are different; transportation and everything else is different now. McDougal: These Army wives cases simply held that they couldn't be tried by military tribunal without following due process. Chairman: W h a t about trial by jury? I would say that the sense of the meeting is that, at this stage of the game, while the rights of the individual under the Bill of Rights are not that well defined, they still have to be respected in areas where we anticipate international organizations having some sort of direct effect on entities other than governments. Oliver: Could I just say that your summation was good, but there are some doubts we should consider resolving. O n the whole, the Constitution is susceptible to growth to permit our participation in regional and world organizations that have exercised supranational powers over firms, individuals, etc. It would be useful to have the group give that opinion. W e ' r e not going to get a constitutional change of this sort, but it would be useful to simply examine this Constitution in terms of changing world conditions. Jessup: Would you exclude the possibility that in the year 2076 the Supreme Court might change its attitude?

396

Committee

IV

Oliver: Not at all. T h e Supreme Court might change its attitude in the year 2076. Federal-State Clause Jessup: Where did you bring in the federal-state clause on treaties? I want to register a mild dissent on that. A great many states are taking advantage of that. It was created originally in the International Labour Organization constitution, and was welcomed by many countries. Oliver: There couldn't be many, because according to my count of federal states, other countries where federalism makes any difference in foreign affairs, there are at most only four or five. Henkin: That's five out of 150. Chairman: But I was never sure whether the federal-state clause was just a hedge against a bad bet on Missouri v. Holland or whether it was intended to change the special status of federal states in international law. I never had a satisfactory resolution on that. Jessup: But the paper says: " T h e United States is obligated only to use its good offices to persuade the states of the Union to perform." T h e original ILO clause merely says that where the government considers that it would be appropriate to have action by their federal states instead of by the central government, then they may defer action and merely recommend that action should be taken. This doesn't seem to be hypocritical; this was the device to get the U.S. into the ILO. Chairman: "Appropriate" always bothered me. Does that mean appropriate in the absence of a treaty? Jessup: No, appropriate in terms of their other constitutional system. Chairman: Yes, but this still begs the question. Does that mean appropriate under Missouri v. Holland? Jessup: The state may choose as to what is appropriate. There's no external force or body that determines whether it's appropriate, and it may be appropriate in one decade and not in another. Chairman: Well, there's a certain unilateral specification of that; it reminds me a little of the Connally Reservation. 4 5 . Oliver: I will check the clause. I was only mentioning it in this context to show that the United States, because of its constitutional system, does ask for special or unusual treatment. Henkin: W e haven't done it recently. W e lost interest in this clause for whatever reason because no one would pay the slightest bit of attention to us. The People and Foreign Affairs Dickey: The paper's disposal of the interest of states in foreign affairs is a little overstated, particularly with the resurgence of the fisheries issues in New England, and the pollution problems of the International Joint Commission between the United States and Can-

The United States and the World

397

ada, which are acute states' interests today. There's a good bit of evidence that the states are going to be increasingly interested in our borders—for example, the Mexican border, which presents an immigration problem. Oliver: Are you saying I'm unfair in suggesting that states' and cities' views of foreign affairs tend to be parochial? Dickey: No, I'm not challenging that. I'm saying that you seem to go beyond that when you say that congressmen are more independent in foreign matters than they are in domestic matters because their constituencies do not have definite views on foreign relations. Today that statement doesn't stand up. McDougal: Let's not forget the continental shelf and marginal sea. Dickey: Up around New England today, you will find there are real and well-informed constituencies on many foreign affairs issues. Oliver: I didn't really mean to say there weren't. Chairman: Normally, the states don't operate around foreign affairs interests. Dickey: That's right. But today they're being more active about the states' international interests. Oliver: I'm trying to pursue what makes solons act the way they do in the foreign affairs field. The basic hypothesis I'm developing is that, on the whole, the legislators are freer to follow their own bents, their own sense of what is desirable in foreign affairs, than they are in domestic matters. Dickey: Let me give you another example. The position the Midwestern senators and congressmen are taking on the question of where the gas pipeline should come down from the Mackenzie Delta in Canada involves strong political interests on the part of Midwestern state officials. Oliver: All right, fine. Henkin: On trade, generally there are local constituencies: grain farmers. And on ethnic problems there are local constituencies. Jessup: Take the Greek lobby on the Turkish aid program. Oliver: There is also the old China lobby. But these are special interest groups which I don't think one can point to to say that the American people are well informed. Dickey: But increasingly there are constituencies which are well informed. I wouldn't be surprised if the statement that you made was more valid twenty-five years ago than today. For example, the U.S.Canada relationship, which I'm now familiar with, the progressive economic integration that has taken place, has produced constituencies in the states that are much more extensive and serious politically than was the case twenty-five or fifty years ago. The pipeline would be a classic example. Oliver: I'm aware that there is supposed to be a constituency on foreign assistance; but this consists mainly of those firms whose goods would be sent as aid. My problem is, are those constituencies linked to some entities or institutions such as states, cities, or are they constituencies that form and change, coalesce and vary from people

398

Committee

IV

to people? What I'm trying to deal with here is the popular sovereignty aspect of foreign affairs. Dickey: The New England governors got involved in the fisheries issues, and they'll be even more involved depending on the outcome of the Law of the Sea Conference. Jessup: The off-shore oil issue is very close to other foreign matters. Oliver: I understand, but the big question nonetheless is, is the individual more effective, the American citizen, his family, and the like, in dealing with choices in foreign relations more abstract than peace or war? That's where the Council on Foreign Relations and the Foreign Policy Association and World Affairs Councils are helping. The sad thing is that just at the time when it's needed, there's less money for these organizations that help educate people for intelligent participation. I hope that my remarks don't sound defensive or pedantic. I reflect upon the discussion from the standpoint of being one of the organizers of this meeting, and then having undertaken to do the issues paper. So I speak occasionally from the standpoint of our objectives and hopes as to the meeting, and also as one who has tossed up the balls for you to shoot at. Do you know of any other full-field reviews of our form of government and foreign affairs in the longer-range future? The only thing I found was a fairly cursory discussion in The Emerging Constitution, Rexford Tugwell's book. 4 6 The Murphy Commission, as my notes attest, seems to be fairly status quo oriented, but it of course has a shorter focus. I make that request for bibliographical information. Jessup: Rex Tugwell's work was originally developed at the Center for the Study of Democratic Institutions. The center magazine had several issues in which Rex and others discussed his projects. Oliver: My next point is to suggest that we engineers of the agenda saw a built-in linkage between "The People and Foreign Affairs" and one of the four conditioning issues with respect to study of revision of structure. The question is raised whether key figures from the legislature, prominent performers in the drama of the separation of powers in the foreign affairs field, represent prevailing views of the public, or under our system do they tend to be left a considerable degree of independence as to the formulation of ideas? If that is so, is it good or bad? Finally, my statement relates to what we ought to be doing here. It's not only the past, but immediate operations problems, difficulties and the like that should be viewed from the longer-range perspective. Take the issue of our participation in supranational organizations. It may be that the present Constitution without change is flexible enough to accommodate to supranationality. That may be, but the perspective should be the longer-range one. I am simply saying we are taking a "scientific" risk in looking to the year 2000 and beyond. It is in the context of that longer perspective that the agenda item was fashioned.

The United States and the World

399

This country goes into a new century somewhat diminished in the world community. Under those circumstances, the question is whether our cherished idiosyncrasies in governmental structure will serve our interests then. W e all want to avoid having so stiff an upper lip that we find ourselves caught short both in ideas and in forethought when different circumstances become known to us. Today, we will be getting into issues of choice: the treaty power, the international agreements power, that could be more closely coupled to the present than some of the other issues we have talked about. Our time span, though forward-looking, is in a sense relativistic. Some things would be good to do right now if they weren't too disruptive of the body politic. Other things should begin to be thought about now. The main motivation in all of this is to sum up. The literature contains nothing that puts into the universe of discourse and thought ideas about the longer-range adequacy of what we have now and cherish so much. Ten Critical Problems Clark: W e have a confusing mission, if you will excuse my saying so. W e are supposed to deal with America's third century, focusing on the United States and the world, all within the circle of the Constitution. The very able issues paper has confined itself to the constitutional issues. It, therefore, does not deal with many of the critical problems of the United States' third century which confront both America and the world. Now, since we haven't much time left to finish our task, I suggest we give some consideration to the following ten questions which I believe are essential to a sound consideration of America's third century: One, Is there a need for a new world order? Dick Falk thinks so. Two, Are global resources so finite that we must plan better on a global basis for their just use? Three, What limits, if any, should be imposed on national sovereignty? Four, What are Americans going to do about poverty, hunger and disease, if anything? Five, Is there a need for improved population control and, if so, what does America do about it? Six, How can we build effective machinery to keep peace? Seven, What should American policy be with respect to the oceans? Eight, How should America deal with air and water pollution in a global setting? Nine, What should our policy be with respect to international trade and monetary reform? Ten, What should our attitude be toward expanding the scope of international law? I suggest that these ten problems are only peripherally concerned

400

Committee

IV

with the Constitution of the United States. But as I read our charge from the American Academy, they are all within the scope of America's third century, America and the world. Chairman: I have interpreted our charge to be that to the extent that these are problems we have to deal with, we have to address ourselves to whether our constitutional structure is capable of a rational adjustment. Maybe we are too optimistic on the problems Joe Clark thinks we ought to tackle. This may involve a complete surrender of national sovereignty, starting with the Bill of Rights. I am not persuaded that the continental system of justice, which is quite different from ours, is inherently worse. Our system is still largely based on the old idea that the king and the yeoman are fighting each other. You get twelve of your friends and take on the Crown. That was fine during the development of English freedoms. I am not sure it works in the ghetto. Our own Bill of Rights has had some adjustment because of that. I don't disagree that you raise issues we must face in the next 100 years. But I conceive our job here primarily as judging whether we have a constitutional structure capable of dealing with those problems. McDougal: Mr. Chairman, taking Senator Clark's general comments quickly, the question here is one of priorities. There are two different problems. How does this government even plan nationally to cope with the problems that Joe Clark talks about? How do we set up our own constitutional processes to participate most effectively and most rationally, taking into account our long-term encounters with other nations, and see that they have a voice in the ultimate disposition of the problems on the merits? You ask if we have need for a new world economic order. That isn't the question. W e have to have a new order, whether we want it or not. The question is, how do we organize ourselves rationally to participate in it? Second, our global resources are so finite that we need global planning. Again, we have it. The question is, how do we organize ourselves to participate in it so that it is done rationally and effectively? Third, are there any limits on our sovereignty? O f course there are. Sovereignty is always limited by international law. Again, the question: limits about what? In what detail? And how rationally? In hunger, poverty and disease, of course, we should do everything about them. Population control? W e all know if something isn't done about it, there is no point in doing anything else. Negotiating the law of the sea is taking three or four years. Our government is hopelessly unprepared to handle this. It's not because of any structural defects but because of the incapacity of certain men to envision the future. The question is one of priorities. How do we organize ourselves to get the information to make the plans, and to act rationally on all our problems? I share your concern, Senator, and Dick Falk's concern. You

The United States and the World

401

cannot talk about the foreign affairs power without talking about what it is being organized to do. Bear with us to help us get organized so we can cope with these problems. If we have time, there is nothing more I would love. I work with this all the time. Every one of them is our daily risk. We're scared to death and deeply disturbed by our own government's lack of actual participation. I don't happen to feel it's due to structural defects; it's due more to personalities. Clark: I agree. Chairman: Many of the problems Senator Clark raises are directly related to the agenda. Item 10 is the next one on the agenda, the " I n creased Role of International Law." The next item on our agenda is "Congressional Disregard of International Agreements." If that doesn't relate to the constitutional problems of international law, I don't know what does. Internal Effect of Treaties What about "Congressional Action in Violation of International Law"? Should we recommend that some greater respect be paid to international law, and particularly to specific treaty obligations, than is now paid under Cook v. United States?41 Cook is based on Congress's saying they meant to overrule a treaty. W e bend over backwards to say we haven't violated a treaty. But if Congress admits, " W e meant to violate it; we didn't mean to produce a result inconsistent with the treaty," is Congress paying respect? Oliver: The same thing is to say that if Congress decides it wants to undo a treaty as to internal effect, this is one instance where the courts get into the act. The courts say Congress shall not be treated as having violated a treaty unless Congress makes it unmistakably clear that that's exactly what it intended. Chairman: But if the courts decide Congress made clear that they wanted to produce a result inconsistent with the treaty, that view of Congress will be respected as a matter of internal law. Oliver: The reason there is so much concern about the power of Congress to undo a treaty by subsequent inconsistent legislation is that more and more the purpose of treaties is to create parallel conditions of governance in different countries. That is, the internal effect of treaties is becoming more and more the most important effect of treaties. Chairman: W e can deal with economics; we can deal with human rights. The internal effect is the name of the game. Oliver: There being no supranational legal order, as treaties bring nations more into phase with each other as to matters governed by internal law, the importance of the internal effect of treaties increases. Therefore, the destabilizing effect of the congressional power to substitute inconsistent internal law becomes more serious. I need only refer to pollution and atomic waste disposal. Interdependence for most purposes means parallel national policies and laws. Manning: It is unquestionable that the process you describe is

402

Committee

IV

occurring in an increasing degree. I thought you were indicating to us, however, that you foresee a time when that will be the primary manifestation of international law and of treaties. Is that your view? Oliver: In the dark glass that I look into dimly, the effect of treaties is exponentially increasing. I don't want to go any further than that. McDougal: Other things will continue to be important. Chairman: The chilling effect of the power of Congress to say that a treaty doesn't affect United States internal law anymore is getting to be increasingly significant and detrimental. You are talking about supranational organizations. Do you see another term involved in that? This started with the ILO. How you treated your own people with respect to wages and hours and working conditions became a matter of international concern. Jessup: Would it be possible to develop a practice, perhaps formalized, by which whenever the Congress exerts its powers to terminate the internal effect of a treaty, there is an avowed clear acknowledgment by either the executive or the legislature that certain international obligations of the United States persist. Also, that the President is not only authorized but obligated to proceed to negotiate with the other party involved concerning the adjustment of our international obligations? McDougal: That's the state of affairs now. Jessup: But can it be formalized? McDougal: The President has made compensation for decisions in the Supreme Court time after time. Jessup: But in many of these cases, where Congress cancels the domestic effect of a treaty, it doesn't acknowledge it. Chairman: Both Congress and the President have to. McDougal: The other country will kick us in the shins. Chairman: You mean they will take us to the International Court of Justice? McDougal: No. They will order our monitoring devices out, stop our space stations. They have all kinds of ways of striking back. Chairman: They can do that whether or not we go along with treaties. You are getting into the power area. W e can suggest a somewhat more formalized remedy, such as the Falk suggestion of postconstitutional amendment, as in many of the continental countries, where international law is made part of their domestic law. A constitutional amendment would say international law is part of the domestic law of the United States, to be applied under all circumstances on the same basis as the Constitution. McDougal: Except for the Sabbatino case, 48 it's the law now. Chairman: Not really. Oliver: Not in the sense of the German constitution. Chairman: W e have never had a case where the court said, " I declare this statute invalid because it's in violation of international law." That's the Falk position. You wouldn't go that far. I don't think I would either. McDougal: I will buy it. It's not a bad idea.

The United States and the World

403

Rubin: Whose international law? Chairman: I take it, as determined by the Supreme Court. Jessup: That's an admirable objective to search for during the next century. Chairman: We could join the thousands who have urged repeal of the Connally Reservation, which would have the same impact. McDougal: Is there any indication where the Court has ever held an act of Congress unconstitutional because of international law? Chairman: Not to my knowledge. The way the Second Circuit walked away from it following the Sabbatino case and the Supreme Court denied certiorari makes it clear that they didn't. Rather diffuse observations of Justice Harlan about the international law on nationalization of foreign companies, however, fudge that up. Jessup: I was just thinking about some of the rum-smuggling cases. The Court didn't give primacy to the liquor-smuggling treaties. McDougal: What about some of those prohibition statutes? Chairman: In Cook v. United States they did it on interpretation. Jessup: Didn't they go further than interpretation? Chairman: In most of the cases where the Court has knocked out the subsequent statute, the statute had been amended by treaty and was recodified. The Court picked the recodification—the statute as made by the treaty. This was basically the case in Cook. Treaty Violations Rubin: We have two entirely different questions here. One is, what happens if the United States violates an international obligation, whether by treaty or by executive agreement? Obviously there must be some kind of compensation. In some cases we contemplate that happening. In the General Agreement on Tariffs and Trade, for example, we say that if there is a violation of our international obligations, there is a regular procedure for making compensation to the person whose interests have been prejudiced. I see no particular difficulty in making this more explicit, saying that the United States, whether it's the Congress and the President acting together, or the Congress alone, should make some kind of compensation. The other question is whether you should allow the Congress to violate an international obligation of the United States all by itself over the President's veto. The state of the law is perfectly clear. Congress can do that. McDougal: Without the President's concurrence? Rubin: Sure. Chairman: No. Rubin: I am talking about a legislative Act of Congress. Both houses of the Congress pass a law. McDougal: They can't pass a law without the Presider.t's concurrence. Chairman: They can override a veto. Rubin: Which is what I started out saying.

404

Committee

IV

Oliver: O r b y concurrent resolution. Rubin: Let's leave the concurrent resolution thing to one side. If you do that, then you have the question of how important is it that Congress can, under our present state of affairs, violate an international obligation. T h a t has something to do obviously with the obligations of the United States, but it's not the same question. How important is it that Congress have this authority in international affairs? T h e record doesn't support the allegation that the United States is more guilty of violating international obligations than anybody else. If you look at one of the most explicit international obligations that exist at the present time, the Treaty of Rome, 4 9 and look at what is happening in Europe with the violations among Italians, French and Dutch, you will see that other countries are violating their international obligations more than the United States. So I come back to the question of how important is this particular aspect of the American constitutional procedure. M y own conclusion is, it would be nice if you could prohibit Congress from violating an international treaty, although I would want to make some kind of reservation on that in national security cases where there really is an emergency. Pollak: I take it that Phil Jessup was proposing, with respect to the first question, that there were some formal, significant procedural issues that ought to be explored so long as Congress can repudiate treaty obligations. If we are going to live as adults in an international world, perhaps we ought to think more systematically about how we address that. T h e problem does not arise operationally when Congress passes a statute and the President signs it. T h e problem arises operationally when the Court of Appeals for the District of Columbia says, " W e reluctantly conclude that Congress meant to repudiate our treaty obligations." It does not always result in a matter in which the other party is entitled to compensation. If the obligation we violated is to all of our fellow signatories of the charter, then it's not a liquidatable dollar amount. Rubin: Even in the example I cite, compensation is often not paid because the demand for compensation turns out to be worse from the point of view of the offended country's interest than just forgetting about the thing. That's the case in many of our trade situations. Chairman: W e are dealing with how to handle the problem that Congress b y legislative action can set aside a treaty as the internal law of the United States. Now, there are a variety of ways to deal with it. In some areas an attempt has been made to deal with it by saying what we hope we can do if this unfortunate event happens. It has to be expressed in terms of hope, because it involves money, and you are never sure that Congress will appropriate the money. Normally, this sort of matter is dealt with only in a variety of specific trade arrangements. T h e r e is a whole series of other arrangements where it is not expressly recognized. Phil Jessup suggested some sort of heavy mandate on the President

The United States and the World

405

to compensate, whether or not the international agreement says to. Another suggestion, maybe too broad, is to put "international law," as determined by the Supreme Court, on the same level as constitutional law. The Supreme Court could then say that the proposed Equal Rights Amendment is unconstitutional or invalid because it's a violation of international law. I am not suggesting this because, watching how others haven't accepted some form of international adjudication in this area, it may be that this problem isn't as big as we say. Congressional Standing to Sue Jessup: May I suggest a variation? I have in mind Lou Pollak's suggestion, in his article in the University of Pennsylvania Law Review,50 that under certain circumstances Congress by concurrent resolution would be authorized to bring suit in its own name in the federal court in connection with certain issues under the War Powers Resolution. Suppose, short of Falk's constitutional amendment, you set up by statute that if the President based a veto of a statute on the grounds that passage of that statute would be a violation of our international obligations, Congress then could take the issue to court. The court could determine whether this was a violation of our international obligations. If it was, Congress would not be empowered to override the veto. Chairman: Is Congress apt to take it to court if you merely authorize them? Wouldn't it be better to have the President take it to court? Jessup: Any way, but get a court determination and allow Congress to sue. Manning: You'd better amend the case or controversy clause too. Chairman: No, the case or controversy clause has been amended. When the D.C. Court of Appeals permitted Teddy Kennedy to bring suit51 claiming a pocket veto of a bill for which he had voted was invalid, they in effect held the clause invalid. There is a growing tendency to increase the type of justiciable interest that underlies case or controversy, including the performance of an official function. Since one of the official functions of the President is to conduct international negotiations, it might be to see that treaties are complied with. If Teddy Kennedy could bring a suit based on the fact that a pocket veto is illegal, he had a strange basic case or controversy. He sued the man who runs the General Services Administration to make him print a bill in the Statutes-at-Large. The court relied on the official interest, based on these vote cases, such as Baker v. Carr.52 I am not sure this is the way Justice Brandeis would have viewed it, but it's with us, so we might as well take advantage of it. Dickey: I think Sy Rubin made a helpful contribution by reminding us of the provision for compensation in such trade arrangements as the GATT. My personal judgment would be that the further extension of that provision could invite more bad things. My judgment would

406

Committee

IV

be that it's just as well to take care of this in the particular statute itself and not fool around with attemping to establish some extension that probably is not desirable. Chairman: I am not at all sure that in the pocket veto case there was a specific reference to standing. It was going to be treated as statutory law. Y o u couldn't say standing shouldn't be treated as statutory law for the violation of international agreements unless you had a constitutional amendment. M a y b e Article III does give us a problem there, even though you don't have the standing issue. W h a t about the Vietnam W a r cases? W h a t was the standing there? T h e power to appropriate money? Oliver: Well, the Court ruled that Elizabeth Holtzman lacked standing to sue Schlesinger. 5 3 Chairman: T h e r e is a clause in the current United States draft of the mutual and balanced force reductions that is very close to the G A T T language. It's called reciprocal nonadherence, and is based on the assumption that the normal United States tendency is to pull the temple down, which is the way we theoretically forced the test ban treaty. It is more or less recognized that if Congress really makes it clear, it can set aside international obligations as the law of the land. It is generally recognized that this problem is increasingly serious, as treaties are basically reciprocal. O n e way this has been dealt with in the past is as an expressed recognition in the treaty itself. A suggestion which received general approval was that in the event a bill was passed over the President's veto, there should be an expression that it was a violation of the treaty. Leech: You left out a vital element, and that is, by what substantive standard would the court adjudicate? You say there will be a right to refer this to the court. You haven't, by constitutional amendment, statute or otherwise, suggested a standard by which the courts will judge whether or not Congress may pass a law which violates our international obligations. Jessup: But that is not a question for the courts. T h e question is whether it would be a violation of the international obligations. Leech: I understand that. W i t h what judicial effect? Jessup: Under my theory, then, the veto could not be overridden by Congress. Leech: But that requires a constitutional amendment, which is what Butch Fisher's formulation didn't include. Chairman: W h a t do you think? Are you prepared to buy a constitutional amendment on this? Jessup: If necessary. I am afraid I haven't got the price to purchase it though. McDougal: I am not sure that I share all the concern expressed here about the impact o f the separation of powers on our foreign affairs power. I don't see a rigid separation during the last 2 0 0 years. It seems to be more a balancing or a sharing of power, as Dean Rostow has put it. I wrote an article thirty years ago 5 4 in which I

T h e United States and the W o r l d

407

approved all the different modes of terminating internationaJ obligations because of their flexibility and their role in this balancing. W e looked at the ways that international commitments can be made. W e had all the varieties, at least the four important ones that we mentioned earlier. Externally, we may be bound no matter what mode of termination was adopted internally. But this variety, this fluidity, did seem to produce a balancing that both protected our common interest, the interest in freedoms, security, and so forth, and provided for enough effectiveness to get the job done. T h e thing has worked pretty well. I'm not as much against congressional action as our discussion here would suggest. W e have had some bad examples of congressional interference against the common interest. If we could work out some way to preserve the internal flexibility and to take care of external obligations, it would be good. Chairman: Well, you are not going to involve the Court if you limit the issue to the effect on external obligations. Political Question Doctrine McDougal: This takes us into the first issue: "Under the present Constitution is there a reliable and definitive process for deciding the respective foreign affairs authorities of the two political branches of the government?" Except for the Sabbatino decision, I rather like the flexibility the Court has had under the political question doctrine. For a long time, I felt that the political question doctrine was really just a way of ducking the issue. The Court was afraid that the case was too hot to handle, and headed for the door. I have had students work on this, however, and one can see a certain uniformity in these decisions. Moreover, as Dean Rostow says, many of these decisions represent a genuine feeling by the Court that it is not competent to handle some of these problems, and that the executive or legislative branches are more competent. O n the other hand, when the Court does feel competent, as in the Dunhill case, 5 5 it should come in. There is a difference between application of broad declarations of policy, the interpretations of transnational expectations, what we call international law, and the conduct of foreign affairs. T h e Court is competent to do the former and should do it. But when we get into detailed day-to-day conduct of interactions with other countries, the Court should back off. I don't think any one branch of the government should predominate over the others. I like the fluid system in which they can all get a say and in which it's priority in time that prevails. W h e n dealing with conflicting treaties, statutes, presidential agreements, if found within the competence of the parties, the Court has always held that the latest in time prevails. I hate to be complacent. I am going to object to some other things later; but it seems that in its broad framework this is a good system. W e have a way of ultimately getting answers that are compatible with our long-term common interests.

408

Committee

IV

I would agree that Congress has acted badly in recent years. There is need for structural change, as I indicated in my article on this thirty years ago. Subsequent experience has confirmed my views. There is absolutely nothing favorable to be said today about the fact that one-third of the Senate can block an international agreement. No reason for this was given in the Constitutional Convention discussions. None of the arguments holds water. The end result was a compromise that left things open, as Franklin himself said, for the development of congressional-executive agreements. Nobody has been able to give a reason in contemporary times. If the one-third veto is employed to protect some special interest, and if that interest cannot be related to long-term common interests, it's just naked power. There should be no place for that in a democratic constitutional structure. Thirty years ago, only Liberia and Guatemala had this kind of provision. The time has come for a simple majority approval. As I said before, I had a Bulgarian student make a study of the constitutions in the world, and we found substantially the same structure in every constitution we examined. The executive had the initiative in formulating policy. The parliament always participated in policy if it changed the law of the land, as in Britain. The executive always had charge of the actual conduct of the negotiations. There is practically a uniform pattern around the world. Two-Thirds Rule Chairman: Do you think it makes any difference? McDougal: I don't think it makes much difference if you have the majority vote instead of the two-thirds. The only thing is practicality. With us, one has to appear before four committees to get any money, and this takes a great deal of time, as any government lawyer knows. It's a nuisance. It's not a structural defect, but it might be. Judge Wright threw out something last night that I confess I hadn't thought of until some of us were walking home from dinner. He asserted that we had a relatively unique structure. I questioned Covey Oliver's presentation of this on the grounds I have just indicated, but Judge Wright said the difference is that our executive is not a part of the parliamentary group. The parliament doesn't fall if he falls. It's conceivable that one might get a stronger executive that way. I feel we have a weak presidency, that we need a stronger presidency. We need creativity to help plan what Senator Clark is calling for, somebody who c^n anticipate these important problems, and take the initiative in getting policy formulated and statutes passed. I am not a constitutional lawyer. I don't know whether Judge Wright is correct that our system is unique in terms of the executive. Maybe some of you know. Leon Lipson said Saudi Arabia is certainly executive and not parliamentary, but this is a slightly different structure. We have more stability in our structure. I hate to think of our

The United States and the World

409

getting into the same situation as France, the United Kingdom, and others recently. W e have to balance stability w i t h the need for creativity. I a m not sure I would buy creativity at the risk of disturbing the relationship which, for me, has produced a pretty good balance for 200 years. I would only urge getting rid of the one-third minority. Chairman: W o u l d you view proposing a constitutional amendment on the problem? McDougal: W e are establishing the position otherwise, you see, so I d o n ' t k n o w that we need one. It's going to take courage on the part of the President, who, like a congressman, is a political animal. I have just returned f r o m a week in Panama talking with both P a n a m a n i a n and American friends about the canal treaty. W e are going to be tested on this problem soon if Senator T h u r m o n d and a third of the senators d o n ' t change their minds. T h e St. Lawrence Seaway didn't involve a thing the Panama Canal doesn't involve. W e put that through by majority vote. W e are going to have to come to some agreement with the Panamanians. If we don't act within six or eight m o n t h s after the election, we will n o t have any canal. Senator T h u r m o n d and others may say we can use force against Panamanians. If we do use force, any asset the United States has south of the Rio G r a n d e isn't going to be w o r t h the paper it's written on. W i t h today's power structures and world opinion, we cannot use force. Under international law, Panama is as entitled as we are to interpret that agreement, and they h a v e n ' t changed one iota since 1903. T h e y said our interpretations were u n l a w f u l f r o m the beginning, and they still say so. Therefore, we may be faced with the question whether an arrangement with Panama can be approved by a majority vote rather than two-thirds. This would be the critical test. If it can be, then m a y b e we d o n ' t need a structural change, an a m e n d m e n t , b u t I am hoping Congress will see the situation in realistic terms. Clark: I repeat my earlier statement that the whole relationship between Congress and the President is one of ebb and flow and change, depending on a n u m b e r of complex factors, not the least of which is personalities. W h e n I was a senator, I wrote a book in which one chapter was on the tug of war between the Congress and the W h i t e House. 5 6 T h a t was written in the days w h e n D w i g h t Eisenhower was President and the Democrats, at least ostensibly, controlled both branches of the Congress. Chairman: T h e y weren't tugging very hard. Clark: T h a t ' s the point. Ike didn't tug very hard because he was not, with all his w o n d e r f u l virtues and as a great h u m a n being, a strong President. Congress was standing u p to him. I wrote that we needed a stronger presidency, more party responsibility, and that the tragedy was to have a President of one party and a Congress of another. I looked forward to an executive and legislature of the same party. W e got it, and look w h a t h a p p e n e d : Lyndon Johnson. After Lyndon Johnson, the memory lingered on with Richard Nixon, al-

410

Committee

IV

though we saw a swing between the control of Congress and the control of the executive. It showed me that a strong President like Richard Nixon can run the show without regard to Congress. My guess is that this situation is going to ebb and flow again. McDougal: Don't you think what happened to Richard Nixon showed that our system in some way justified itself? Clark: Yes. It does if it goes far enough; if the arrogance of power affects either body to such an extreme extent that impeachment and resignation become practical alternatives. But most times it is well within those limits. Oliver: I agree with what you said in terms of collaboration between the President and Congress. But some day we are going to have to evaluate Buckley v. Valeo in exactly those terms. How far can Congress go, other than kibitzing on the edge of things, in really participating in a decision-making way in foreign affairs as a result of that decision? As to the Senator's ebb and flow theory, it's fine if you want to give hostages to fortune in the next century. I do not expect to see the day when the President, as chief of the party, will harmonize the executive and legislative branches through the political function. The big point is that personalities and institutions relate to structure. You can't separate the two. There is an interaction between how things are set up and who does what when. We seem to be persistently overlooking that fact. W h y does the Senate act the way it does? W h y does the Senate have its arrogance of power? Because the Senate is set up in that way. Chairman: There is nothing in Buckley v. Valeo that says a thing about putting agreements up for approval by both houses. I was asking whether it would be good to recommend a constitutional amendment on this point. Would that have a negative effect? When and if you do get it, you will have some senator saying, " I will not be a party to diminishing the role of this great body." Even the proponents admit you need a constitutional amendment. McDougal: I am reasonably happy with the present situation. I confess I haven't studied Buckley v. Valeo. I have simply read the newspaper. From what I understand, all the Court did was hold that the Congress couldn't participate in the appointive power. Wasn't that it? Oliver: But it was for the reason that Congress itself could not manage affairs under separation of powers. McDougal: We do not want it to manage affairs. W e want it making policies, as it makes laws and authorizes and approves the management of affairs. Self-Executing Treaties Another thing we have are self-executing treaties. Some of the unhappiness in Congress is directed against the one-third minority veto, as well as against the President. The position we took on this thirty years ago was that it was harder to get a two-thirds vote in the

The United States and the World

411

Senate than a majority of both houses, that the two-thirds vote in the Senate really was legislative approval, that there is no reason why we should not have the supremacy clause, and that a two-thirds vote of the Senate was enough of a legislative approval. So I wouldn't bother about the self-executing part. There has been a lot of nonsense written on what "self-executing" means: it's non-self-executing if it requires congressional action; it is self-executing if it doesn't so require. If the people in charge of the legislation think about it, there isn't the slightest problem. They can make clear whether an agreement is to become the law of the land. Chairman: If you go to the practice of both houses of Congress, won't all the steam be taken out of the self-executing argument? Isn't it better to go that way? McDougal: Sure. I think it is. Oliver: That is why I like the chairman's way. Parliamentary acceptance becomes internal law automatically. McDougal: A final point I want to make is on the role of the Court. The Court should have a substantial role in the making and applying of international law. Our Court has always had, except for the Sabbatino aberration. There are literally hundreds of cases in which the Court has played a role. They made the law. This has been its historic function. Justice Harlan happened to be educated at the same place I was, the University of Oxford, and he knew little international law. The political question doctrine does give the Court considerable freedom to decide when it has the capabilities to play a role, and when it doesn't. On some of these delicate international negotiations, the Court appropriately says there are political questions it cannot handle. These are questions for the larger community to bring pressure on the legislature and on the executive to get different decisions. There are no long-term criteria by which the Court can appropriately dispose of the problems. In sum, we have already a fairly good structure. Our founding fathers perhaps did better than we could do today. Chairman: Where do you stand on the concept of a formal structure to get an adjudication on whether this Congress is in violation of our obligations under a treaty? McDougal: Well, I would stand with Phil Jessup. Lipson: We passed a little blithely over the Connally Reservation. The repeal of the Connally Reservation on the self-judging provision may be politically difficult. But it seems to be politically easier than most other things we have been talking about, although it has been considered improper as well as unlikely under the supremacy clause for a judicial determination to declare the primacy of treaties over a flatly contradictory subsequent statute. I take it that nobody has floated the idea of an appeal to an international tribunal from decisions of the domestic courts. Phil Jessup's idea, which would enable the federal courts to judge whether a proposed statute or measure is inconsistent with the international obligations of the United States, would raise some difficulties.

412

Committee

IV

A measure that would, as a matter of statute, declare the willingness of the United States to accept the jurisdiction of an international tribunal would meet some difficulty, but repeal of the Connally Reservation would be a step on the way. Chairman: One possible argument against repeal of the Connally Reservation is that it would be difficult for the executive branch to defend the repeal action before the international court, having taken a strong position for it all these years. I was involved in that question when one of the various Hickenlooper amendments sent us to the court in a case involving the rights of Americans in Morocco, 5 7 the first case the United States had ever had. M y co-counsel, Mr. Rubin, is here. O n e of the problems was that we had already headed off a purported injunction against an action we were permitting. W e had headed it off on standing, not on the grounds that the action taken was not in violation of our rights under the treaty. But even there we got all this flak from Hickenlooper, who said we had already been defending the French action, and now we were going to deal with it in court. He said if we were going to deal with some sort of an anti-Connally Reservation, we would have to have a doubt or dubitate, or something on that, while forcing the President to international court. The only way he gets there is that he had already said we are wrong. I have participated in something close to that and can assure you it is not comfortable. Treaty Obligations Pollak: I want to identify, without having any quarrel at all, what seemed to be Leon Lipson's admirable summary. W i t h respect to one element of the summary, there is an assumption we seem to be joining in. It seems that under the supremacy clause, it was competent for the majority of both houses of Congress, with the acquiescence of the President, to set aside a treaty obligation. Is this an assumption under which we have been operating? T h a t is an assumption built into Myres McDougal's formulation that we have a government in which, when the various agencies of government act within their competences, that is fine. T h e structure has worked reasonably well under that system. But the suggestion is that it is within the competence of both houses of Congress and the President—very likely a different President and a different Senate from the ones who originally entered into a treaty obligation with two-thirds of the Senate doing it—to make that change. I am not certain why we made that assumption, so long as we are still wedded to a system in which the initial incurring of a treaty obligation is done by two-thirds of the Senate with the acquiescence of the President. I am in many ways sympathetic to the feeling that we should be moving effectively and perhaps by constitutional amendment to a situation in which treaty undertakings don't require two-thirds of the Senate. But so long as we have a system which requires it, I would at least like to flag the question for myself. I don't know that it follows that it is within the competence of only a majority of the Senate plus

The United States and the World

413

a majority of the House, with the acquiescence of the President, to abrogate that treaty. It is not. McDougal: It has been so held many times. Pollak: I appreciate that it has been so held many times, but I also appreciate the fact that once something has been decided does not prove it is worthy. Chairman: It would help our colleague to conclude whether we can get it changed. Pollak: I am only raising a small question. Chairman: As to raising structural changes, it is going to be hard for us to have it both ways. It's hard for us to say we ought to go the simple majority route from now on. Even when you have the simple majority route, the simple majority that giveth can taketh away. Going in the direction of simple majority is probably better than saying only the Senate giveth. If two-thirds of the Senate gives, the simple majority cannot take away. You have got to decide what way you opt. Pollak: If we have to make that choice, I agree with you. Chairman: A subsequent act of Congress, either passed by both houses and signed by the President or overriding the presidential veto, can set aside as internal law a treaty obligation. This is modified only by the fact that the courts look at it very seriously to see that Congress really meant it. That's a rather crude statement of the rule of law. Taking the challenge of our conference keynoter, is this really the law, or should it be the law? What do you think? Rubin: I would like to mention the keynoter's query whether when there is an international obligation made by act of the President with concurrence of two-thirds of the Senate, may a simple majority of Congress later override even that kind of obligation? Since we all are agreed that there is no basic difference between the commitment in an executive agreement and a treaty obligation, I don't regard that particular query as being very important. Chairman: If the waiting executive and the waiting Congress took the size of Mr. Lipson's doughnut and acted on it, and never submitted anything again in the form of an international agreement, except one to be approved by both houses of Congress, your comment would be quite right. Unfortunately, somewhere along the line they won't do it that way. Dickey: You might well cite the fact that right now we have the President and the State Department sending up the Spanish bases proposal, not only under the treaty power, but also for a joint resolution by Congress, a practice in respect to international arrangements that has not had much appeal since the Dingley Tariff Act of 1897. It is important to repeat that the potential for such trouble, as long as the two-thirds rule remains in the Constitution, is great. You cannot avoid the possibility of a political hassle over prerogatives. Clark: Isn't the Versailles treaty the best example of that? Dickey: I wouldn't say it's the best example. The Versailles treaty fight was so fouled up with amendments. This is one of the great vulnerable aspects of the two-thirds rule. You can put an amendment on

414

Committee

IV

by majority vote, and by the time you put on two or three amendments, you have killed the amended treaty. Amending the Two-Thirds Rule Chairman: We have now, I take it, a general consensus that the two-thirds rule is bad. I haven't heard any clear voice on how to get away from it. There are some who favor working around it; others who say we need an amendment. Until you get an amendment, you always have the prerogative argument. The second you propose an amendment, you almost have an admission that unless you have the amendment, you can't do it. Maybe whatever is written about this can "waffle" on it by saying that an amendment really isn't necessary. Recent practices indicate that if an amendment ever gets knocked down because it isn't necessary, then the prerogative argument is dispersed. Manning: Regarding the two-thirds rule, I am familiar with the thesis in Mac McDougal's earlier article and the strong feeling held by many that the rule should be eliminated. To debate the point is a useful intellectual exercise, an educational one. But if we are talking about a practical recommendation, I would think it a poor idea to go to the Senate and House to get this provision amended. The costs in the intensity of the ensuing contest would be very great. And, if a change were made, the change itself would negatively impact the nation's willingness to engage in serious international discourse and contract. Also, I do not think it would ever pass. I am perhaps the only person here who feels that the Supreme Court's decisions on the power of Congress to provide an " o u t " in domestic matters are right. They are politically right. I think the Supreme Court has seen the part of wisdom and provided what is in effect a politically indispensable escape hatch. Whenever the Congress acts contrary to an international commitment of the nation, that fact must be brought forcibly to its attention so that the Congress is made fully conscious of what it is doing. But as a matter of political process, the present situation is balanced. Congress is brought to recognize that an international obligation exists and if it is violated, some form of compensation will be required, and our international reputation will be somewhat harmed. But the elected representatives of the people are still left free to take the step if they are willing to take that heat and pay the costs. That arrangement is intelligent politically. It is unlikely that violations or aberrations will occur frequently. If, by contrast, the rule were that the Congress may not get out of a treaty by domestic legislation, we would have more political consequences like the rejection of the Versailles treaty and the great fight about the Bricker amendment. 58 The political feelings that underlay those events are still around, and will continue to be around. I do not share the view that the nation will enter into large numbers of international arrangements that also set up domestic legal regimes. There may be more than in the past, yes. But I doubt that there will

The United States and the World

415

be many. In any event, I am arguing that if such arrangements are envisioned, it will be all the more necessary to couple them with an escape-hatch rule. Rubin: That was part of what I had in mind when I said you do have escape clauses in these other agreements. You cannot negotiate a trade agreement without some kind of escape-clause mechanism. Manning: I agree in the trade field. I was taking the principle and applying it across the board. It seems to be a direct counter-argument to what I would have gathered when I heard the word "consensus" mentioned. Chairman: Let me ask you a question. I take it you do not object to Phil Jessup's approach in terms of renegotiating with the country involved if the President thinks he violated an agreement. Manning: No. Chairman: What would you think? I don't think we should ever put this into a report about some sort of a structure that involves a proceeding in a court of claims, because it's too detailed. That would require statute but not constitutional amendment. Manning: Filed by the other country? Chairman: Yes, by the other country, and with the recognition that in the event they weren't satisfied by the court of claims, they had exhausted their local remedies. Oliver: Let me give you another type of treaty situation which is coming up against compensation under G A T T . My colleague at Penn, John Honnold, has been working five years on a new set of treaties under the rubric of the United Nations Commission on International Trade Law. Those treaties will, among other things, revamp the carriage of goods at sea convention 59 and the Brussels convention of 1924. 6 0 That UNCITRAL convention is supposed to govern; it has been carefully worked out to accommodate a series of intricate, differing interests among the shipping nations of the world. The first risk, just to get the present system out of the way, is that we would repeat what we did about the first carriage of goods at sea convention. It took us from 1928 to 1936 to get part of it through the Senate. Then when the Congress enacted the legislation to implement the treaty, they varied from the treaty terms. Now that is one problem. W e have had a lot of case law on that convention. W e have yet another statute dealing with the responsibilities between shippers and carriers. It goes back to earlier legislation in the 1890s. If we go into a new convention of this sort—and there are three or four others in this same package of UNCITRAL—we put them into effect by domestic legislation explicitly as the treaty is written. The possibility, not of wholesale disregard, but of significant variance by later legislation becomes a problem. Chairman: Is it going to go up as a treaty? Oliver: Yes. It is all well and good to say that we just ought to present it as legislation. But will the State Department go ahead and do that for most treaties? I don't think the State Department is in

416

Committee

IV

many instances going to run the risk of offending the Senate by putting international agreements into effect as domestic law by majority legislation in both houses. The jurisdictional interest of the Senate Foreign Relations Committee to act on treaties and to recommend to the full Senate is in play in such situations. Full Congressional Approval Chairman: Incidentally, I lived through the Bricker amendment era. I see the verge of another Bricker amendment debate starting. In the legislative branch the cast of characters has changed. Oliver: And is changing. Chairman: It is the anti-Vietnam liberals who are making Bricker amendment noises. I wake up and pinch myself. Which side am I on? Kistiakowsky: What are they proposing? Chairman: They are proposing a structure under which all agreements other than treaties would be referred to the Congress for sixty days, and would then become law if they were not vetoed by a concurrent resolution saying they should not become law. On its face, that looks simple because all you have to do is enter into an executive agreement, and then fight off for sixty days objections in one house or the other. On the other hand, we saw this adopted in limited areas, such as the Middle East. And if it happens, it will extend from limited areas to across the board. The gradual delegations of authority should involve broad policy, and not involve the veto, which is what started in Congress forty years ago. So you will end up with a structure wherein Congress will be asserting the right to veto by legislation agreements which the President has constitutional authority to make on his own. This is a serious constitutional problem. Without exploring this further, we can say there is broad support for the concept of greater use of approval of both houses of Congress, either subsequent or prior to a particular agreement with increased delegation. Clark: It is unrealistic to expect to get a constitutional amendment through the Senate. Oliver: I emphasize that we are not discussing a draft of another Constitution! We are trying to float ideas. The subject we are discussing has hardly ever been in play as discussion before. Chairman: Certainly the St. Lawrence Seaway wasn't a political issue. Myres McDougal said he would agree to get out of the Panama Canal, but thirty-eight senators are saying we can't do it. Oliver: That is one side. The other side is that the House, even those who realize we have to have a modernized treaty with Panama, are tense because they say we bought the Canal Zone, we own it in fee simple, and it's government property. The Senate and the President can't give away government property. The Constitution says it can only be done by act of Congress.

The United States and the World

417

Clark: They are going to say that so long as Dan Flood is in the House. It gets back to personalities all the time. Chairman: I don't think that the House will make the constitutional argument if you put the Panama issue to the House. Flood would make it a much more political argument. Clark: But don't you think the House will go with him? Chairman: I am not sure. Oliver: Could we say a good word in favor of the Department of State's present practice under which treaties are not sent to the Senate for its advice and consent until the executive branch has good assurance that implementing legislation is in sight in both the House and the Senate? We would never need a constitutional amendment for that; but, of course, a future Department of State might shift away from that practice. There are some who criticize the present practice. Jessup: Would you consider your remark about speedy ratification, and qualify that so it does not apply to the general multilateral conventions where few countries are expected to ratify quickly? Your remark is quite apt for a bilateral treaty, but for many of the multilateral treaties I don't think there is any expectation of speedy ratification. Do you? Oliver: That is the voice of realism. You are right. I am thinking of the Law of the Sea Convention, for example, if we ever get one. Jessup: But they have still not ratified the 1958 conventions. 61 Chairman: I have one comment with respect to the 1958 Law of Sea Conventions. In 1958 we got together to codify forever the law of sea, and how long did it last? Arthur Dean was unhappy that he hadn't been able to settle on the six-mile territorial limit. If we had done that, we would have tied down the six-mile limit forever. The People and Foreign Affairs Let's go back to " T h e People and Foreign Affairs." Dr. Park. Park: My comments will be in two parts: a prologue and a question. First, I want to thank the many members of this panel for giving me an excellent education in recent developments in administrative and international law. I suggest, however, that there probably wouldn't be many countries where such a discussion would be quite as insistently legal as ours has been. The issues involved are primarily philosophical. Power of course leads to this. Perhaps it is characteristic of American government. Many of you know better than I that we are a highly legalistic society, and therefore it is perhaps natural, when turning to issues of this kind, that we do it in the context of administrative and international law. However, I do see this propensity leading us into problems having to do with the people and international affairs. I have looked at a great deal of the raw material gathered by the Institute for Social Research at Ann Arbor on both domestic and foreign affairs in terms of the public's knowledge of given issues. You can calculate that about 55 percent of the people have no real idea about what the domestic issues are. They can identify many issues, but can provide no details.

418

Committee

IV

The percentage of those versed in foreign affairs is even lower. That fact has an unfortunate implication for the relationship of constitutional arrangements to the shaping of foreign affairs. Many of us assume, because of the organization of our legislative structures—in the states, but more particularly in the federal structure—that congressmen can act as links to the people. They do, but not so much on international issues as on domestic ones. As a matter of fact, congressmen often can be better statesmen in the international field than in the domestic, but that's one man's observation. As for other elements that are not structurally tied to the Constitution—our schools and colleges, World Affairs Councils, the Foreign Policy Association, the Council on Foreign Relations, its committees around the country, all kinds of other voluntary instrumentalities that supplement formal constitutional arrangements—all certainly play roles in linking citizens to foreign policies. It is discouraging, nevertheless, to see how minor the impact of all of these forces, both formal and informal, has been over the years. The problem is not so much a constitutional issue; it may be a statutory one. What is the reaction of Congress to funding and initiatives which might add to international outreach, to understanding, to a linkage to the people away from generalities to specifics? Both the executive and legislative branches have been backward in this respect. My conclusion on whether our constitutional arrangements are adequate is that they might be adequate if other influences were more effective. Recently the Department of State tried to pull together various voluntary organizations to advise the department. I was invited to that conference. I didn't go because the consultants were a combination of well-intending—some uninformed, and other quite well-informed— people, experts on particular subjects, all mixed up. The department seemed vaguely interested. I am certain that they didn't intend to be much influenced by the conference. I wrote a letter to an assistant secretary, saying that we were not interested in consulting in this way, but that we would like to advise on specific issues in a professional and technical fashion. There was no answer. We have become legal in our approaches. It seems to be a characteristic of our society, and I am not sure it's wholesome. Second, even if our constitutional arrangements are not particularly good, I have no structural changes to suggest. W e need more effective ways to introduce informed citizen participation in the shaping of foreign policy. Oliver: I want to link that viewpoint and our discussions on consensus. In one range of Professor Falk's discourse, consensus seems to be populistic, or at least mediaistic. In another sense, it seems to be elitist. I still don't know what consensus is. How can consensus be effectuated? Clark: W e have other comments we haven't discussed at all: whether we don't fundamentally have an elitist society in America

The United States and the World

419

with a lot of revolutionary undertones. Everybody around this table is fundamentally an elitist and able to make some contribution to the subjects we are discussing. That leads me to the State Department's effort. Though no admirer of me, the State Department has indicated to me their interest in what the U.N. nongovernmenal organizations are thinking about the whole range of foreign policy. That first conference last June was a disaster, but they learned something from it. They are trying to create mechanisms by which they can sound out knowledgeable public opinion. Therefore, I am optimistic about it. Chairman: Participation in treaties has been up to the Senate. The founding fathers didn't consider the Senate to be representative of the people, but rather to represent the states. Since then, the Senate has gone to popular election and is more representative. We are now proposing broader congressional participation in treaty-making. Is that enough or not? We're dealing with a structural matter under which the present constitutional authority, two-thirds of the Senate, or the majority of the Senate and the House approves international agreements. That means you rely on your touch with "grass roots," through the committees and their constituencies. Is that enough, or should we recomment something more? Clark: You also have what Professor Park said, intervention of the Department of State in attempting to find out what public opinion really is. This is noncongressional and nonconstitutional. Chairman: Well, let he who has never attended a public affairs briefing be the first to issue a strong disagreement with Professor Park. I have been one of the briefers of the NGOs. Park: I am sorry, M r . Chairman, but I am not quite sure where we are disagreeing. T h e issue concerns more than treaties; it is basic policy decisions. T h e only thing we have discussed on this is a not too unfriendly nod in the direction of formal public participation at some points in treaty negotiations. It is in revised Circular 175, 6 2 the only place it is formalized other than in the informal briefings at State's office of public affairs.

Clark: I suggest there is not a person around this table today who would not want to get his views considered by the Department of State or the Congress. In a meaningful way, you can't get it done. Oliver: I would say as a citizen that I could not get it done. I would get a bedbug letter from the Department of State. I found I can't get, as a researcher-teacher, anything out of the second bureaucracy— that's the 11,500 staffers working on the Hill. They work for senators and representatives. They don't care about me as a citizen, whereas the executive bureaucracy will give you some kind of response for fear of my asking a congressman to put the pressure on. Holland: If we agree that the constitutional arrangements don't need amending, can we urge the American Academy of Political and Social Science to recognize that the work of Bay Manning and the

420

Committee

IV

Council on Foreign Relations and the Foreign Policy Association deserves attention and some support? These are the organizations that attempt to inform people so they can vote for a congressman or a senator, or take a stand on Panama and other questions. Chairman: Well, Congressman Gross voted against you because you are a member of the Council on Foreign Relations. Manning: I feel strongly about Professor Park's point that public education about international affairs—the public knowledge level—is probably a minus number. Because of the scale and dimension of our society, and because of the way in which our political process works, I see no possibility that our best-intentioned public officials or party leaders can significantly improve that situation. I am informed that 65 percent of all news conveyed to the American public today is electronically delivered. Print media as a mechanism for public education seem not to be a working practical option. In these circumstances, how can we hope for responsible public participation in the conduct of foreign affairs? Either we should put foreign affairs in the hands of a small number of select people, a step from which I recoil and which I do not trust, or we will have to go farther in the direction of mandating public affairs broadcasting on private and public electronic channels. Yet, I am confident that as soon as I say that, all my civil libertarian friends in the nation's law schools will tell me we cannot do that because it is forbidden by the First Amendment. Chairman: Can't you mandate, consistent with the First Amendment, public airing, and then offer the opposition equal time? Manning: Maybe. In any case, we must design some such solution or we will run grave risks of survival. Rubin: One broadly philosophical statement about the nature of our society: we don't really have a democracy; we have a representative form of government, a republic. Are we ever going to be able to get the farmer in Iowa informed about the intricacies of my own specialities in trade, for instance? It is possible. I don't know whether or not you call labor groups, consumers' groups, the Council on Foreign Relations, various American societies, this particular institution, elitist groups, groups which can be informed and represent views of constituencies. That is not as unmanageable a problem as the business of taking a public opinion poll as to whether the man in the street has ever heard of Zaire as distinguished from the Congo. To a certain extent, despite what I consider to be the completely public relations aspect of the recent State Department effort, it and other government agencies and Congress have been moving in the direction of setting up public advisory panels which do bring in people such as Ralph Nader and Common Cause, labor unions, and so forth. To that extent, there is a considerable amount of movement in the direction of getting representative public participation and representative public knowledge.

The United States and the World

421

Secrets of State and Executive Privilege Schulhofer: Mr. Chairman, talking about the capacity of the United States to act in ways that other states can, we considered secrets of state, executive privilege, congressional involvement in the making of foreign relations, and separation of powers generally. W e concluded that the United States was not so severely hampered as was indicated in the paper. W e did not consider whether executive privilege, national security, and so on are appropriate from perspectives other than foreign relations. Chairman: What is our view about secrets of state and executive privilege in this context? My own sense is that no one felt any current erosion of "secrets of state." Oliver: I regard the insistence with which groups in Congress have sought to penetrate secrets of state, and to do away with executive privilege, as being manifestations of a congressional will to participate in foreign affairs decision-making; that is, more than the political contention between members of one party in Congress and a President of another, and more than an aftermath of Watergate and Vietnam. That is my view. It may be a minority one. This urge to know operations has been around and noticeable for a number of years. Kistiakowsky: Without disagreeing, I must say that in my long experience in Washington, dealing largely with issues which involve technology, I found that the insistence of the executive branch on secrecy was really much too excessive. Oliver: I agree with that. Kistiakowsky: Appallingly so. There are a number of cases where insistence on secrecy can be justified only in one way; namely, "It will be embarrassing to us if this becomes known. It will weaken our defensive position," however unreasonable that position may be. Oliver: There is no contradiction between what I said and what you said. Chairman: Speaking as an individual, I could not agree to decrying the present trend. Right now the balance is probably still in the area of excessive secrecy. I would not agree to anything that said the erosion of the secrets has been a bad thing. It ought not to go across the board. Obviously there are going to be some secrets from Congress. But the Joint Atomic Energy Committee knows about our custodial arrangements with nuclear weapons in the NATO countries. They haven't leaked. W e can't expect to make decisions without the Congress knowing about them. They have actually improved them somewhat. Rubin: Let's broaden this discussion to include executive privilege. I don't feel there is much violation or much danger in the present arrangement. CIA reports go through the Congress like water through a sieve. But executive privilege seems to be a topic hard to generalize about. There are certain circumstances in which the doctrine of executive

422

Committee

IV

privilege should be continued and maybe strengthened. T h a t is when Congress wants to know about every internal memorandum within the Department of State, or any other department, or to get an internal memorandum from the Supreme Court justices. Chairman: W e really have to look at executive privilege the way it has been left by both the push-pull of executive-legislative competition and the relatively rare cases where it gets to court. W h e n it is executive privilege against a grand jury, it will always go to court. Oliver: That is United States v. Nixon. Chairman: That's a bit beyond the scope of this group. W h e n a grand jury is investigating possible criminal action involving foreign policy and thinks executive privilege should be waived, we really don't want to say, " S o r r y , you can't do it." So that means we are talking about executive privilege with respect to the Congress, which has been asserted in a variety of ways. It got an assist in Select Committee v. Nixon,63 where due to a special act, it was subject to judicial review, and the court took a different view. There are only two ways executive privilege can be put to adjudication. O n e is prosecution under the pertinent section of the criminal code. Normally that gets to be a key issue only when you are claiming executive privilege at the end of an administration, and are aware that a new Attorney General will begin before the statute of limitations has run. T h e other way in which executive privilege is raised is the relatively rare occasion when one house of Congress cites you for contempt. They summon you to the bar, and then you have a trial, like an impeachment trial, only it's only the one house. Theoretically, the House can send you to jail only for the duration of the term. T h e Senate, being a continuing body, can put you in for quite a time, until you purge yourself of contempt. In the Supreme Court's ]urney v. MacCracken ruling, 6 4 the defendant had some difficulty purging his contempt because he destroyed all the documents. As to the whole problem of the internal memorandum, I don't see any real assault on that worse than that in 1952, and it survived in 1952. O n the other hand, you should be able to rely on executive privilege as far as discussions between an ambassador and the department in asking for instructions for negotiating positions. Therefore, talking about the present assault on executive privilege without specifying executive use of it, is just pointing out that this is going to be a "push comes to shove" operation. How did Select Committee v. Nixon get decided? Because Congress passed a bill, 6 5 which I believe the President was afraid to veto, providing that they could get classified information. T h e court then said executive privilege does exist. It is alive and well, although there are certain times when it does not exist. Normally executive privilege exists unless there is evidence of malfeasance. Rubin: I wasn't suggesting that executive privilege is always being

T h e United States and the World

423

misused. It would be worthwhile to mention, however, that these cases you are talking about are only the tip of the iceberg. Covey Oliver says that the whole system of government operates only if you have mutual respect and mutual restraint on the two sides. What I am suggesting is that the Congress ought to pay some attention to the proprieties of conducting the executive branch of the government. Sometimes they have done that; in fact, often. But in a lot of cases where we are talking about change at the constitutional or subconstitutional level, it is a question of what is good practice under our Constitution. Chairman: But if this committee calls attention to the current attack on it, that implies that the attack has gotten past "push comes to shove." I am speaking as one who has probably claimed executive privilege more than anybody in this room. In the Truman administration we had an executive and Congress of the same party, 1948 to 1952. My first cLaim of executive privilege was in the 80th Congress against Nixon, threatening contempt of Congress—McCarran and Ferguson. The balance is not too much against the executive in this area now. It was once, when someone in the Department of Defense slipped my old friend, Craig Hosmer, an instructional telegram which had been given to me. I was duly called up before the joint committee to answer. Hosmer didn't subpoena it; but someone gave it to him, you see. So I can't really say that that was a violation of executive privilege. Someone gave it to him because they thought we were getting close to the test ban, and they didn't want it to happen. The present balance is reinforced by the Court's support of executive privilege in the grand jury case. Even though they didn't let Nixon claim it, they said, "Sure, it exists; but in this instance you may not use it." In the congressional committee case, the court said executive privilege exists and is not relinquished. If you can claim it on the basis of Select Committee v. Nixon, that would seem to cover almost any other case you have mentioned, as far as the Congress is concerned. Bureaucratic Right of Privacy Oliver: That seems to tie this discussion in with Dr. Rubin's differentiation between state secrets and executive privilege. I call executive privilege a bureaucratic right of privacy, which may not be a good term, but it reflects what we are talking about. The second one affects the public's right to know. I don't think the public, through their congressmen, should be authorized now or for the long-range future to upset free thought, which is a kind of intellectual democracy which goes on in the executive branch. The important thing is that in certain agencies of our government there is a good deal of internal free thought until a decision is made. You can't have that in the State Department without some degree of executive privilege.

424

Committee

IV

Chairman: After Select Committee v. Nixon, the Court of Appeals decision tipped the balance for executive privilege against Congress a bit too much. It is stronger than it should be. You can still protect the names of officials. W e delivered to Senator McCarran the names of those assistant secretaries in whose areas the decision was made on the theory they were politically responsible. They had been appointed by the President with the advice and consent of the Senate. They ought to defend the positions. During the Truman administration the bureaucratic privacies stopped at the assistant secretary level. The assistant secretary had to defend himself. Mr. Acheson was the most zealous in protecting his subordinates. He took great delight in telling congressmen to go jump in the lake. Once Acheson was being asked who drafted a letter for him to Congressman Keating refusing to disclose a certain document. When Keating asked, " W e l l , you tell me who drafted the letter," he hoped Acheson would say " n o . " But Acheson said, "Adrian Fisher did it. He is the legal adviser. He is appointed by the President with the advice and consent of the Congress, and is therefore politically responsible." "Fisher, tell him why you did it," Acheson said. Oliver: It blew your cover. Chairman: We decided not to claim executive privilege for politically responsible officials. We drew the line at presidential appointees. When a deputy assistant secretary became acting—that is, a nonpolitical responsible official was acting assistant secretary—-he had to assume the responsibility while acting. Dean accepted that, although reluctantly. The current balance of executive privilege does not justify our decrying the current attack. Oliver: I want to get back to the notion that the United States is unique and operationally disadvantaged in the sense of not having as easy a way of doing things as some other states. I do not draw, and did not intend to infer, any expression of operational preference in favor of giving the United States as a nation all the immunities from public scrutiny or congressional scrutiny of our affairs. Far from it. The logical conclusion of the opposite would be that totalitarian government is the only form of government usable for the conduct of foreign affairs. I certainly didn't mean to imply that. I didn't want to come in on this, but the argument is being made that state secrets and executive privilege are good and desirable because they remove disadvantages that we suffer. The real issue that we should face is the socio-political cost-benefit. Surely it costs you something to be a democracy in today's world. There is no question. Rubin: Harold Nicolson said it a long time ago. 66 Schulhofer: I take it the feeling is that the present arrangements with respect to executive privilege adequately provide for popular participation in the formation of foreign policy. Kistiakowsky: No. There is far too much secrecy. Maybe you

The United States and the World

425

couldn't call it executive privilege, but there is just an unhealthy amount of secrecy. Chairman: It is claimed to be executive privilege when the Congress goes after it. As long as the Congress isn't after it, the only problems you have about secrecy are the leaks, which often come from the top rather than the bottom. Probably more people think there is too much secrecy than too little. Oliver: Let's do this. Let's differentiate secrets of state from executive privilege by the simple expedient of defining executive privilege narrowly. Secrets of state are one thing; the internal functioning of the bureaucracy, as between inferiors and superiors, is something else. Chairman: They overlap, because often the executive privilege and bureaucratic right of privacy is something in itself that is classified. That being the case, you can make the argument, if something is bonafidely classified, executive privilege can apply. So you can have an executive privilege case where there is no independent right of classification. On the other hand, in almost all state secrets cases, the only time it really comes up, except when there is a leak, is when there is a request by the Congress to get information. Jessup: Wouldn't this state your position, that we would not weaken the safeguards provided by the present system, but we recognize and regret the abuses? That seems to be what it comes down to. Kistiakowsky: Yes, I buy that. Chairman: There is a possible crack in this dike: that is, the amendment to the Freedom of Information Act, 6 7 which requires that you can no longer classify as you could in £. P. A. v. Mink.6* The law now provides for a hearing in camera where you have to explain why something is to be classified. Having watched The Forrestal Diaries69 go through that process, I think you would be surprised how much the necessity to explain reduces the classification problem. Oliver: That suggests a point we might dispose of quickly. In the paper I differentiate between the Freedom of Information Act, even as expanded or amended, to get post hoc information needed by interested people, and being informed simultaneously with decision-making as to what is going on. Chairman: That leaves it up to a judge. I can't imagine any judge in his right mind under the Freedom of Information Act requiring you to give out an unexecuted negotiation instruction. That might be grounds for impeachment. The classification system, however, does not take into account the relatively short time between a high classification and no classification in the negotiating arena. There again, you might have to argue with the judge. Someone will say, "Well, we don't want the Soviets to know what we are thinking before we finally come to an agreement." Kistiakowsky: How long would you keep it secret? Chairman: About a year. It depends on the nature of the thing. Nothing in the Pentagon Papers involving Ellsberg, which happened in 1968 when they were trying to get the Vietnam peace talks started,

426

Committee

IV

made a bit of difference by 1971 when the talks were already under way. That was three years. Now, had it been two weeks, I don't know. It was never shown that he gave the stuff to the Soviets. The problem was, he gave it to Russo, who was unauthorized. Could the information have been a danger to the United States? Not, did it hurt the United States, but could it have? I don't know whether it is necessary to say that the Freedom of Information Act puts a new dimension on this. That is getting a little detailed. T h e act is going to be with us for some time. It's going to give a new dimension to state secrets, a more healthy one. Rubin: Contrary to that is the right of privacy, on the basis of which the State Department is no longer even publishing the biographic register. They won't give out the information where a diplomat has served and what his salary is. Oliver: Not to know what a government official makes is an outrage. Rubin: O r what his experience has been. Court Adjudication Chairman: I think we are down to what might be called the bottom line. Having gone through all this, what do we really think about it? Oliver: W e have the four conditioning issues to consider. T h e first is debatable: " U n d e r the present Constitution, is there a reliable and definitive process for deciding the respective foreign affairs authorities of the two political branches of the government?" In my summary I said the answer is " n o , " and I stand by that. There is not now a reliable and definitive process. Mac McDougal said the same thing. The question is, do you agree, and if so, what do you want to say ought to be different? Rubin: I agree with you, the answer is " n o . " But up to now, we have been fairly well served by a process of mutual accommodation and restraints. Manning: I have almost exactly the same reaction. I would be inclined to think we do not have a reliable and definitive process. Oliver: There are a number of people who believe that the courts have the golden solution for the separation of powers problem between the two political branches. Where the Constitution may in original premise have intended the two political branches to grapple and contend from time to time, people now say the courts should decide. Chairman: D o we have any alternatives to improve it, since we are looking to the next century? Are there any ways of improving our present arrangement? Is there any judicial solution? T h e current judicial solution is almost accidental. T h e case where the executive agreement power has been obtained, of course as we all know, is Pink.10 I personally never paid too much attention to CurtissW right.

T h e United States and the World

427

Oliver: No one does anymore. Chairman: Pink has made clear that a treaty or executive agreement is not a political question, that it can be adjudicated. Do we think there should be a structure under which this matter could be set up for adjudication? Don't we want to address ourselves to whether we can change, or should change, how authority over foreign affairs is decided, whether it can be changed within our constitutional structure or whether this is worth a constitutional amendment? One way is based on Kennedy v. Sampson. Here we're not concerned with "standing" mentioned earlier. A suit by a congressman or senator on behalf of the Congress or the Senate could bring an adjudication, because here you have a constitutional issue. You don't have a problem of breaking a treaty. Would it help or hurt our negotiators if the Court were asked whether it is within the President's sole power to enter into an executive agreement? If a congressman wants to, he can bring suit in the district court, although it may take a couple of years. I can't see any adjudicatory solution, other than accidental adjudicatory solutions, that would not involve some delay. Now, is that good or bad? Oliver: Those who would prefer the courts to "push comes to shove" struggles between the executive and legislative branches are wrong. T h e courts will not honestly bite bullets in this field. My general feeling is that our court system tries to avoid what they regard as embarrassing involvement in foreign affairs situations. Look at the classic way the courts have misread the Department of State's views with respect to recognition and allowance of sovereign immunity. Under those circumstances, political questions, with all the variables that the courts have put in, should be left alone. The courts can't and should not do the job in this field as between two co-equal departments. There are better ways to moderate this contention between the branches. The best of them is to bridge separation of powers, as I mentioned before. Chairman: That's not totally satisfactory, but we are not able to come up with anything better. I take it, the sense of the group is that anything other than an accidental judicial solution would be a mistake. You clearly wouldn't want to rely on Kennedy v. Sampson, where one Senator could tie the thing up in litigation for a couple of years. You would have to have a statutory structure that requires concurrent resolution or signed resolution. Would you prefer that? Lipson: It seems that the willingness of a court to determine where to intervene will shift with its sense of the danger presented by the existing situation. As a matter of constitutional policy, we ought to leave it there, although upon many occasions we may want to move the court in a given direction. The instrument for moving it is not constitutional change. Chairman: And not forced adjudication.

428

Committee

IV

Oliver: I second that. Lipson: The fact that we may be in favor of the courts adjudicating some of these issues more readily than the courts do now isn't enough to make the case for constitutional change. The converse is that having denied the necessity for constitutional change does not preclude us from urging the courts now and then to shift the line on political questions, on justiciability, and on a number of other doctrines that they have used. Chairman: The problem here has not been justiciability. The problem is standing. I am not sure that the natural urging of the courts is to make a friendly nod in the direction of Kennedy v. Sampson in the executive agreement field. Oliver: I think that standing is simply another variable that judges use to explain their inarticulated preference as to whether to deal with a particular case. I don't want to freeze things. As things are now, standing means judges deciding where there are and are not claims of right on the part of plaintiffs, and that ought to be left a little open. I suppose I should not be allowed to bring a declaratory judgment proceeding, or to seek an injunction, against enactment of a MorganZablocki bill assault on separation of powers, but something short of that ought to be left to the courts, unless we want to take the courts out of action. Congressional Foreign Affairs Powers The next issue is the true bottom line, as far as I am concerned. "Under present constitutional arrangements and congressional traditions, can Congress act effectively to discharge the new foreign affairs authorities that are being claimed in its name?" I suggest there is only one possible answer to that. Chairman: What are the new foreign affairs authorities that are being claimed in Congress's name? Oliver: Those relating to a low immunity of the executive for state secrets and for executive privilege; their complete vulnerability to selective use of hearings and investigative powers by Congress; legislative trends toward denying the President the veto; and more broadly, what I call Congress's will to participate. I want to see the will to participate in foreign affairs encouraged. But I wouldn't want to see a Congress, as presently set up, have any foreign affairs powers beyond those it now has. I am even unhappy about its having some of those. Chairman: You say powers as "claimed in its name," and you mention four different powers. Some of them it can effectively exert, but not selective use of congressional hearings. Oliver: You are right. These are claims by people, not by institutions. Let me try again. The Fulbright et al. claim is that the power to advise and consent to treaties is also the power to advise the President and to participate with him in the formulation of foreign policy.

The United States and the World

429

That claim has been made in Fulbright's books. It is a claim that in everyday practice is asserted routinely by Senator Church and other members of the Foreign Relations Committee. Chairman: And by Senator Vandenberg in the Vandenberg Resolution. 7 1 Oliver: One of my difficulties with this whole discussion is that the main foreign affairs business of a country is no longer the making of international agreements, a classic 18th century idea. The really important decisions are what you want to do in the world arena, and whose side you want to tilt towards, to use Kissinger language. Chairman: W e have already expressed our view that congressional veto of the purely executive agreement is not a good idea. Dickey: This is one area where we have to be careful that we don't try to codify it too closely, because political adjustment, political judgment, is immensely important to making the separation of powers work. W e don't want to cast a shadow on the kind of effort that Roosevelt and Hull made in preparation for the U.N. Charter. They consciously decided not to repeat the Wilsonian position. The Secretary counseled the people in the department who were working on this to be sure that Senator so-and-so was informed and understood it. Maybe they went too far. Oliver: The point is, that was ex gratia from the executive to Congress. W h a t I am talking about now are claims of right on the part of Congress. That's something else. Dickey: I understand that distinction, but I want to know whether those don't blend a bit. Oliver: They do. Let me just put the question, is Congress well set up, as we view it, to do whatever its job is in the foreign affairs field? I personally don't think so. It's a standard viewpoint that Congress is willing to reform almost everything but itself. The kind of Congress I want to see is one that works effectively in the field of foreign affairs in a blended or melded power system. Congress is different now. I do not have great expectations for Congress in this field. The term of representatives is too short. There are too many of them. The Senate has too many extraordinary privileges. Are things all right on the Hill as far as foreign affairs operations go? Committee Structure Chairman: W e ought to address ourselves to committee structure. If we are going to lean hard on maximum use of self-executing treaties, we ought to insist on reorganization of the committee structure. The sense of this group is not for blending executive and legislative functions in foreign affairs, but for something more limited. W e don't need to suggest structural changes. Perhaps a change in organization? Going back to the St. Lawrence Seaway; it was before the House Public Works Committee. There wasn't quite the jealousy in the International Relations Committee that there is today. But if you put

430

Committee

IV

that thing before the Public W o r k s Committee today, you would have a riot on your hands. It seems to me that the sense of this group is that we prefer committee structure changes. Manning: I thought we were talking about the Constitution. Chairman: W e are talking about the Constitution and constitutional practice. Most of us didn't want a change in the Constitution on the two-thirds vote issue. If we decided on change in constitutional practice, as opposed to the Constitution, to go the practical way to change the two-thirds vote to one of simple majority, it can't be too bad. Manning: I feel strongly that Congress has to do something about its committee processes in matters international. But I would not have thought that topic was within the ambit of this conference. Chairman: Well, I think we can get away with it. Clark: W h a t committee changes do you recommend? Chairman: If we have decided that the best way to send up agreements is not in treaty form but as international agreements to be approved by both houses of Congress, should we not recommend that that procedure be accepted by an administration? W e are trying to make it easy to get out from under one-third of the Senate. Clark: W h a t does that have to do with the jurisdiction of congressional committees? Are we saying, get rid of two-thirds and move to the joint resolution approach? Chairman: Yes. Clark: I am with you there. Now, what are you going to do about the jurisdictional dispute? Chairman: W h a t is going to happen when we do that? Which committee is going to get it? Someone is going to get it. Clark: I would assume Foreign Relations and International Relations. Chairman: It hasn't always been the case. Oliver: In the Senate it's not as bad. T h e Foreign Relations Committee gets most of it. The problem is in the House. Chairman: I would like to have both houses of Congress sufficiently sensitive to the fact that it is harder to get an agreement through two committees in each house than it is to get one through the Foreign Relations Committee and two-thirds of the Senate. If they become sensitive to that fact, and make changes to prevent that from happening, then the recommendation we all agreed on could actually work. The unsettled committee jurisdiction problem is one of the reasons things aren't sent up as executive agreements to be approved by joint resolution. Clark: W h a t you are saying is that, generally speaking, the treaty approach, which requires a two-thirds approval by the Senate, is not a wise way to handle international relations problems in the congressional sphere. Therefore, you want to move to a situation where you have a joint resolution of Congress. I agree with that. I don't see any serious jurisdictional problems in the Senate, and I take it you don't either. You already have a well-established procedure in the Senate, and to some extent in the House too. Questions of this sort, which

The United States and the World

431

might be within the jurisdiction of more than one committee, are referred seriatim to both. Chairman: That happens in both houses. It may make our recommendation for going the joint resolution route a dead letter, and we ought to say so. Clark: W h e n there is any international agreement which involves an appropriation, do you or do you not want it to go also to the Appropriations Committee? Chairman: I don't think we can avoid that. Even with specialized agreements like GATT, going to the Finance Committee and the W a y s and Means Committee with sort of a pat on the head from the substantive committees may be workable. But it will collapse if they adopt a general practice of having all agreements take that route. Manning: The observation I would make is that the present procedure is not working so badly. If we were sitting here writing a new Constitution on a blank sheet of paper, I would not favor the twothirds rule in the Senate. Even if we reconstruct the politics of 1789, including the trade-off on money bills originating in the House and the need for some kind of matching special grant to the Senate, the two-thirds rule was not a good idea. But that is a different question f r o m asking whether one thinks it ought to be changed now. Now we have it. It's an institutional organism that has been collecting barnacles and growing sprouts for 200 years. How do we deal with it? W e build around it and accommodate to it by the extraordinary constitutional creativity that is characteristic of the Republic. We use various techniques, of which the joint resolution in both houses is one and the executive agreement is another. I am therefore not ready to suggest use of the joint resolution only. Congressional committee structure is not geared to deal with today's international problems. I have some thoughts about that, and hope before long to publish an article containing some suggestions. 7 2 But, I'm not inclined to remit all issues of international affairs uniformly to any one particular mechanism, and would preserve, to the extent I could, all options in the hands of the President and Secretary of State. Clark: Could I suggest a possible compromise? The group feels that, generally speaking, the route to the approval of executive agreements lies through joint resolution rather than treaty. This may raise serious questions of committee jurisdiction, which we recommend should be carefully studied. Jessup: I am wondering why you concentrate on the committees and not the subcommittees. The New York Times said the other day that twenty-eight Senate subcommittees held no meetings in 1975. Chairman: If you handle the overall problem of committee jurisdiction, I assume the subcommittees will stay in line. I have seen problems with committee jurisdiction, but never a squabble between two subcommittees, that held up the executive branch. Usually the chairman takes a firm hand on that.

432

Committee

IV

Organization of Congress Oliver: Is there any utility, in terms of general public education on issues, of restating the generally held view that Congress is not well structured to carry its part of the foreign relations job? W e are not arguing what its part is. Congress, for better or worse, has been and may be seeking additional powers. In foreign affairs, h o w can Congress do better to organize itself? This begins with little things like how an executive branch man is treated. Y o u can't legislate on that, but you can create new traditions. T h e r e is a mutual suspicion between the two branches, an attitude of endemic civil war. Park: It is my observation that, even with the new Congressional Budget Office and the staff structure in individual congressmen's offices, congressmen are not well staffed. T h e r e has been a tremendous improvement over the last twenty or thirty years, but it isn't enough. W e could take a stand on that. Clark: If we are going to do that, we ought to be specific and not just say Congress is not well organized to carry out its responsibilities in the foreign relations field. I personally think it is, particularly with these new arrangements of the Congressional Budget Office, the Library of Congress research service and the Office of Technology Assessment. It's pretty well organized. T o say it's not shows an executive bias, which I deplore. Oliver: Let's note that not just from executive bias, but from political science, there is a general, across-the-board inadequacy of Congress in all fields, not only foreign relations. Manning: I am in concurrence with your position and the Senator's that if we are going to make much noise about that, we ought to decide how Congress might be internally altered for the better. It's not a constitutional problem. I manage now to find myself on three different sides of what is apparently the same issue as a result of the way it is now formulated. O n the merits, I agree with you completely and I disagree with the Senator. I don't think the Congress is organized at all to do the job. But I think we can live comfortably with what was written in this city two hundred years ago. Oliver: T h e changes you are working on are operational changes in government structure. Manning: T h e y go very much in the direction that you want to go, of increasing collaboration between the branches. Your reading of Buckley v. Valeo carries it farther than I would. M y guess is that the Court will not read it as you do, if, when, and as genuine functional, operating political sinews begin to develop between the Congress and the President in the field of international-domestic issues. Oliver: I hope I never have to quote you in a brief amicus, but that's reassuring. Manning: You are focusing on what is happening in the international area, but the domestic side must also be considered. Look at the oil question. T h e r e is no possible way to deal with it except as a par-

T h e United States and the W o r l d

433

tially domestic issue, and that will in time compel a joint working relationship that will be different from what we have seen before. It is idle to talk about strengthening the executive branch to the exclusion of the congressional in such "intermestic" issues. Lipson: That doesn't exclude the preservation of a distinction between executive authorities and congressional oversight, even while they share a great deal of information as well as restrospective responsibility for what went wrong. Manning: I agree. Oliver: That leaves us then with the question as to whether we have enduring problems, whether we are in the first stage of new problems, or whether we are just in a transition. Chairman: Are the problems going to get worse or go away? Do they arise from a temporary condition of American politics? Can we just say these are contemporary problems being experienced? Manning: I believe the answer is that the contemporary problems we have are temporary, but they are in part attributable to some basic problems which won't go away. Chairman: Would you suggest that the issue is how much of the contemporary problem being experienced by the United States arises from contemporary political conditions? And how much are derived from the early stages of structural defects? Jessup: That's right. Constitutional Revision? Chairman: At the very end of our paper, we have a long list of constitutional changes. Some of us feel that constitutional changes might be possible. Some of these are a little rich for the blood. Rubin: Any minor change of the Constitution is a major change, in my way of thinking. What if I go back to what Phil Jessup suggested earlier: create a treaty-performance agency to ensure that in day-to-day operations the international treaty obligations of the United States are in fact lived up to throughout the federal government and by the states. That agency would also say that if we violate one of our international agreements, we will assess penalties against ourselves, or go to the international court, or a variety of other things. That doesn't necessarily involve even a minor constitutional change. Manning: That could be done statutorily. Oliver: One aspect of Judge Jessup's remarks about supranationality came through to me. He was saying not to worry about explicit amendment; that the Constitution will grow. The only way I know of the Constitution growing is through judicial interpretation. That's authoritative growth through judicial interpretation, but that is nonetheless functionally a constitutional adjustment. Chairman: Does anyone wish to speak on abandoning separation of powers in favor of a cabinet form of government for foreign affairs? Oliver: Yes, I am in favor of that change. But rather than "abandonment," I would have institutionalization through statute, statute 434

Committee

IV

which I hope would pass Supreme Court scrutiny, for providing a managerial role expressed for Congress in certain aspects of foreign affairs. Chairman: What about, "the territorial reach of the Constitution, function by function"? Oliver: That's a constitutional follow-the-flag point: officers overseas, Americans acting against aliens outside the country, and the like. It isn't important. Chairman: Next point: "Eliminate the exclusive role of the Senate in approving treaties and provide that international agreements (all but very minor or technical ones) come into internal legal effect only by simple majority approval in both houses." This one, compared to some of the others, is relatively conservative. Manning: That is not necessarily an argument for it, particularly where it says "only." Chairman: Is there enough general support for this to keep it in? I think there is. Oliver: Let's take " o n l y " out. Chairman: Let me go back to the idea of a treaty-performance agency to ensure that the United States lives up to its international agreements. Does that need to be a constitutional amendment? We thought it didn't have to be. Wouldn't it be more sensible and more consistent with what we came up with to have that statutory rather than constitutional? Oliver: Statutory. Chairman: One might argue that we already have such an agency, but it doesn't really work that way. Oliver: It does not work very well. Chairman: It didn't work that way under Meeker. Now, could the next point be considered under constitutional adjustments; that is, to "permit certain types of regional . . . entities which the United States may enter to act directly . . . upon persons and interests in the United States"? Oliver: Leave it to the courts. Isn't that what Judge Jessup said? W e trust that the courts will not worry about it. Chairman: Do you want a constitutional amendment? Jessup: No. Chairman: If it's to be by judicial action, I would be for fixing limits on executive privilege and secrecy in foreign affairs, the next point. You will never get a constitutional amendment on that, but you will get judicial action on it. I'm also for clarifying the "authority of the judiciary as to contentions between the Congress and the executive." How about, making "structural changes in the Congress"? Oliver: I was embarrassed to put this in, but if Congress never tends its own house, should it be required to? Take it out. Chairman: All right. Should we clarify the President's power as commander-in-chief in deploying military forces? I say " y e s . " Oliver: Yes. Chairman: "Modernize the concept of declaration of war"?

The United States and the World

435

Kistiakowsky: It's very desirable. Leech: W h o is to decide? Chairman: That will be decided by the courts. Oliver: The courts, yes. The courts are to decide whether, for instance, the War Powers Resolution is constitutional. Is that too flat a way of putting it? Chairman: This refers to deploying military forces outside the United States. W e had Wilson v. Girard.13 This is designed to clarify a situation involving constitutional law, which may be done either by constitutional amendment or by court decision. There may be a draftee who could sue saying, "You got me into this, you shipped me out without proper authority." Oliver: It's inelegant, but it deals with the President's sole power or congressional control. Dr. Kistiakowsky says it should stay in. Chairman: Next is "constitutional determination" of Congress's participation in foreign affairs. Haven't we already covered that? Jessup: W e certainly discussed veto-free executive agreements which were made under congressional authority. Oliver: Yes. W e didn't discuss appropriations. Jessup: Does this have to do with impoundment? Chairman: Harry Truman, on the recommendation of one person in this room, and a couple others, once refused to accept a directive to make a loan to Spain. He would accept that as an authorization if, in the foreign policy of the United States, it made sense. But he wasn't going to if told, " I have to make the loan." He never got impeached. Is there anything stronger here than the impoundment legislation? Jessup: I don't see how anybody can deny the next one, weighing "the desirability of giving the people" voting power in foreign affairs, "possibly by electronic voting." Chairman: What about, curtailing "the foreign relations powers of the Senate"? Isn't it implicit in your proposed constitutional amendment? Oliver: Take it out. There is a lot of support for longer House terms and fewer members. Manning: Especially if that means higher qualifications. Lipson: The question of qualifications, terms and numbers of members of the House is relevant, and far more complicated than the reference materials available to this committee. Oliver: Higher qualifications go out, I agree, but what about longer terms and fewer members? Kistiakowsky: That's not personally offensive. Oliver: I think most people feel the House is too big to be effective. Chairman: Next. I would frankly be in favor of letting congressmen sue on foreign policy. That's worth detailed consideration. Whether you can ever get an amendment through on this, I don't know, but we have spoken in favor of it judicially. Oliver: Yes, I think we have. Chairman: W e have discussed providing "that subsequent incon-

436

Committee

IV

sistent legislation may not contradict the internal legal effect of a treaty until it is legally no longer in effect." Some people here feel that is an important issue. 7essup: Keep it in. Oliver: You can say the committee examined a certain range of possible changes, and advised the keynoter as follows. Chairman: I recommend it stay in. It's a matter we have discussed. Schulhofer: My sense of the committee's general feeling was that that could be described as an aspiration, but not something desirable at the present time. When you say leave it in, is it the notion that it should stay in to be identified, or is there a suggestion now that it would be favored? Chairman: Not favored, but should be considered. Oliver: It is not too far-out. W e are not trying to bind you to anything. W e are trying to distinguish the far-out from that which has enough merit to be considered for the future. Chairman: Next has to do with the power to terminate international agreements. 7essup: I would keep it in. Chairman: The next point on executive right to funds is pretty farout. Oliver: I think that ought to go out. It really would be a violation of a congressman's constitutional oath to vote a zero appropriation for the executive branch. Chairman: In regard to clarifying Congress's power to query the President's advisers, is that under executive privilege? Is it special for the President's office. Oliver: I stated it as neutrally as I could. I don't see why Henry Kissinger sitting in the West Wing should be immune from a summons by the Hill, and others sitting in Foggy Bottom should not. Chairman: "Readjust federal-state relationships in the foreign affairs area."? Oliver: Take it out. Manning: I am in favor of readjusting it, if necessary. Oliver: The "plural presidency" is in current discourse. That's the only reason I put it in. It's in Tugwell's book, for instance. Rubin: There hasn't been any discussion of it here, has there? Kistiakowsky: I want to say something about it. President Eisenhower talked a great deal and fondly about creating the position of first minister or first secretary, higher than the Secretary of State, essentially the prime minister. Wouldn't that fall under this point about redistributing some of the President's responsibilities? Chairman: Yes. There are a variety of concepts. In the parliamentary system, you still have the distinction between head of state and head of government. Manning: The phrase, "plural presidency" does not communicate what you mean. That's what used to be in Uruguay. Oliver: Or presently in the Swiss confederation.

The United States and the World

437

Manning: If you want to include something like the first secretary, or a chief of state, someone who primarily cuts ribbons, I don't think the presidency reaches that. Chairman: W e can just rephrase it to take out any reference to redistribution of the vast range of presidential responsibility. Oliver: W e can say, evaluate, within the executive branch, a redistribution. W e don't have to say at the constitutional level, do we? Leech: But that would include a troika. Oliver: It would. It would also include a President and a first minister. Should we reexamine the "amendment process"? Is it too rigid and difficult to achieve? Manning: W e have had twenty-six amendments in 200 years. That's a pretty good clip. Chairman: They tend to come in batches, though. The first ten were a package deal. Oliver: The next point regarding "judicial review" is incomprehensible. Take it out. Chairman: The next point is, "Shall the President have the power to veto items in appropriations bills" relating to the conduct of foreign affairs? Could we put this in the context of dealing with the Truman and Spain incident? Oliver: Yes. The question is whether the President is fully restricted as to impoundment, not if there is a non-impoundment rule. It's arguable. Rubin: This refers only to foreign affairs purposes? Oliver: That's what is in our province. Rubin: Then shouldn't you delete "appropriations bills"? What if there is an irrelevant bill? Oliver: Money bills. Would you think it would be a good thing for the President to be able to veto the Hickenlooper amendment to the Foreign Assistance Act? 7 4 Rubin: That's what I was thinking. Manning: The item-veto issue has been an interesting one for a long time. I am not sure, if I were to file my best brief in favor of it, that it would have any particular bearing on the foreign policy argument. The issue is a sweeping one. I doubt that it has a special grounding in the foreign affairs area. Chairman: Its only grounding is the assertion by at least one President, and maybe by others, that his constitutional impoundment was greater in the foreign affairs field than it was domestically. I am going back to Truman who said, " I won't accept a directive to do something involving another country." To that extent, you can make a constitutional amendment. Manning: I see the point. Oliver: What do we call it? Rubin: Appropriations bills relating to the conduct of foreign affairs. Chairman: Appropriations or authorizations?

438

Committee

IV

Rubin: Or bills. Chairman: That takes you a great deal further down the road. Manning: Only in foreign affairs. Oliver: In authorization and appropriations bills relating to foreign affairs. Okay. Manning: I would like to offer the prospect of two potential or contingent amendments that I would view as perhaps indispensable, but I stress the word contingent. Both of these topics have come up. The first one relates to international agencies, and ties back to Phil Jessup's observation that the Supreme Court will find evolutionary ways to permit the Constitution to let this country deal with emerging closely-knit international agencies. If it should emerge that he is wrong, and the Court does not permit it, then in the next 100 years we probably would adopt amendments to the Constitution to permit it. Cooperative Channels Second, I believe it is essential, as I have argued before, for a new level of cooperative action in the foreign affairs field to emerge between Congress and the President. If it should happen that I am wrong in my projection that the Court will tolerate that—if it should happen that Covey Oliver's worst fears on the Buckley case are realized— then I believe we will be forced to make an adjustment in the Constitution that will permit it. I see no other way to conduct the government. Chairman: Many people have expressed the same view in regard to international agencies. As to Congress and the executive, this presents more problem of what sort of cooperation you are thinking of. We have discussed things which I felt were not within Bucklcy v. Valeo; that is, congressional members of delegations appointed by the President. But everybody knows they aren't. Everybody knows congressional members normally object to congressional members on advisory commissions. I dont' know whether they can buy it if they are not designated by the leadership and appointed by the President. If you have sort of a joint commission, then you get into Buckley v. Valeo. You might not, if the members of that commission were actually appointed by the President. I don't know how far along the question of cooperation you had in mind. Manning: I was deliberately vague and stretching my own view that we are on the verge of a series of institutional innovations in order to develop cooperative channels between the two branches. If it should happen that the Supreme Court is so ill-advised as to say, "No, you may not do that," then you will find me in the forefront of those arguing that we must change the Constitution. But I don't believe that is going to happen. That is why I put both of these in this contingent form. Given reasonable statesmanship and insight on the part of the Supreme Court, I believe there are grounds for hope that the necessary institutional adjustments that will be required in the next 100 years can be accommodated in this document.

The United States and the World

439

Chairman: How far do you think we will have to go, just as a matter of interest? What sort of things are going to develop? Manning: I am prepared to propose some radical suggestions about the installation of congressmen on NSC-type committees. Oliver: So am I. Manning: We need new bodies that sit halfway up Pennsylvania Avenue. My guess is that another step toward cooperation is for the Senate and the House to create a joint committee dealing with "intermestic" issues, with a corresponding group being created within the executive branch. Between the two groups we would need adjustments of the kind we are beginning to see in the intelligence areas with different kinds of oversights, checks and joint working relations. Chairman: That point was made on a contingency basis, and there was no disagreement with it. Oliver: These are very important points dear to my heart. Rubin: I am generally in favor of Bay Manning's statement. It seems to have some implications for discussion of the concurrent resolution in the handling of foreign affairs. We all seem to be more or less in opposition to it. There is an inconsistency here. Chairman: It's not inconsistency; it's creative ambiguity. In other ways we find it acceptable. We have not said we found the subsequent veto by concurrent resolution unacceptable to us. We bought it a little bit. But to buy it across-the-board would wreck the system. Oliver: I would like to say there is one custom in the inter-American system that I think is worthy of emulation generally. That is to make flowery speeches thanking the chairman for his able direction.

440

Committee

IV

NOTES TO DISCUSSION MATERIAL Committee I I. Furman v. Georgia, 408 U . S . 238 (1972), held that the death sentence under Georgia statutes constituted cruel and unusual punishment because juries had unchecked discretion to impose or withhold the death penalty. 7 Prawn V. Board of Education, 347 U.S. 483 (1954) and 349 U.S. 294 (1955), held that the doctrine " s e p a r a t e but e q u a l " had no place in public education as segregation of children, though facilities may be equal, deprives minority children of equal educational opportunities. Brown II, the implementing decision, required school districts to m a k e a prompt and reasonable start toward full compliance with Brown I. 3. Franks v. Bowman Transportation Co., Inc., 424 U.S. 747 (1976), held that an award of seniority, retroactive to date of individual j o b application, was appropriate under Title VII of the Civil Rights Act of 1964, as affirmative action to redress an employment discrimination. 4. James Bryce, The American (New Y o r k : Macmillan Co., 1888).

Commonwealth

5. Gideon v. Wainwright, 372 U.S. 335 (1963), held that appointment of counsel for an indigent criminal defendant was a fundamental Sixth Amendment right, essential to a fair trial and obligatory upon the states by the 14th Amendment.

Congress had no power to prohibit slavery in the territories, and found the Missouri Compromise unconstitutional. 14. J a m e s S. Coleman, Equality of Educational Opportunity ( W a s h i n g t o n : Government Printing Office, 1966). T h i s report concerns the lack of equal educational opportunities for individuals by reason of race, color, religion or national origin in public educational institutions. 15. Terry v. Ohio, 392 U.S. 1 (1968). Policemen may m a k e a reasonable search for weapons for their own protection (stop and frisk), where they have reason to believe they are dealing with an armed and dangerous person, regardless of whether they have probable cause to arrest the individual for a crime. 16. Keyes v. School District Col, 413 U.S. 189 (1973).

7,

Number

17. Swann v. Charlotte-Mecklenburg cation, 402 U.S. 1 (1971).

Denver,

Board

of

Edu-

18. United States v. City of Chicago, 385 F.Supp. 543 (N. D. 111. 1974). T h e hiring and promotion practices of the Chicago police department were shown to have an adverse effect on blacks and Hispanics, and new procedures were required. 19. Charles C. Green v. County School Neiv Kent County, 391 U.S. 430 (1968).

Board

of

6. In Yick Wo v. Hopkins, 118 U.S. 356 (1886), the court considered the application of a San Francisco ordinance too exclusionary (against Chinese). Because it was applied b y local authorities, and thus represented the state itself, it amounted to a denial by the state of equal protection under the 14th Amendment.

20. De Funis v. Odegaard, 416 U.S. 312 (1974). Action was brought by an unsuccessful applicant to a state university law school charging that an admissions policy giving preferences to less qualified minorities was an unconstitutional denial of his application. Case was moot as D e Funis was later in final year of law school and any decision on the substantive issues would not have prevented his graduation.

7. Civil Rights Act of 1964, P.L. 8 8 - 3 5 2 , 78 Stat. 241.

21. John Stuart Mill, On Liberty, Alburey Castell, ed. (New Y o r k : Appleton-Century-Crofts, Inc., 1947).

8. See n. 3 above. 9. Voting Rights Act of 1965, P.L. 8 9 - 1 1 0 , 79 Stat. 437. 10. Plessy v. Ferguson, 163 U.S. 537 (1896), sustained a Louisiana law requiring " e q u a l but separate a c c o m m o d a t i o n s " for white and black railroad passengers, saying that the 14th A m e n d m e n t was not intended to enforce social, as distinguished from political, equality. II. McLaurin v. Oklahoma State Regents, 339 U.S. 637 (1950), held that the 14th Amendment precluded differences in treatment by the state based on race, which in this case was the required use of separate facilities by the races at a state university. 12. Brown v. Mississippi, 297 U.S. 278 (1936), held that use of a confession, extorted b y brutality and violence, to obtain a conviction of crime, was a denial of due process. 13. Dred Scott v. Sandford, 19 How. 393 (1857), held that the word " c i t i z e n " in the Constitution was deemed not to include the Negro race, and thus the rights and privileges conferred b y the Constitution upon citizens did not apply. It also declared that

22. Ronald M. D w o r k i n , " D e Funis Right to go to Law S c h o o l , " New York Books, 5 February 1976.

Case: The Review of

23. Equal Employment Opportunity Act of 1972, P.L. 9 2 - 2 6 1 , 86 Stat. 103, amends Title V I I of the Civil Rights Act of 1964. (See n. 7 above.) 24. Lochner v. New York, 198 U.S. 45 (1905), held that a New York State law which limited the number of hours bakery employees could work per week was overreaching the state police power and was thus violative of the due process clause. 25. T h e state action doctrine is the concept that only that activity depriving a citizen of due process or equal protection that is related to state regulated affairs or performed by state employees in their role as state employees is unconstitutional. 26. Benjamin N. Cardozo Memorial Lectures, Herbert Brownell, " T h e Forgotten Victims o f C r i m e , " delivered to the Association of the Bar of the City of New York on 4 M a r c h 1976. This lecture is published in The Record of the Association of the Bar of the City of New York 31 (1976), p. 136. 27. Griswold

v. Connecticut,

381 U.S. 479

(1965),

441

held that a law forbidding the use of contraceptives, rather than regulating their manufacture or sale, violated the right of privacy guaranteed by the Bill of Rights. 28. Matter of Quinlan, 70 N.J. 10 (1976), ruled that the parents of Karen Quinlan, who was in a noncognitive, vegetative state, could on her behalf decide to terminate her life; that her right to privacy could be asserted by her parents in this instance. 29. Senate Select Committee on Presidential Campaign Activities (known as the " W a t e r g a t e Committee"), chairman, Senator Sam Ervin, met from February 1973 to June 1974. 30. Art. XIV of The Declaration of the Rights of the Inhabitants, Pennsylvania Constitution, adopted 1776, as printed in The Federal and State Constitutions . . ., ed. Ben Perley Stone, 2nd ed. Part 1, p. 1542. 31. "Black's theory of absolutism" refers to Justice Hugo L. Black's interpretation of the First Amendment: that it granted absolute protection to free speech. This contrasted with the majority Court opinions which used a variety of judicial tests, including the "balancing test," on a case-by-case basis to determine if the speech in question was entitled to protection. See, for example, Black's opinion in New York Times v. Sullivan, 376 U.S. 254, 293 (1964). 32. William Benton, Whig Loyalism (Rutherford, N.J.: Fairleigh-Dickinson University Press, 1969).

Committee II 1. Alexander Hamilton, The Federalist No. 78. " T h e judiciary on the contrary has no influence over either the sword or the purse, no direction either of the strength or the wealth of the society, and can take no active resolution whatever." 2. San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973). Justice Marshall argued for the Supreme Court to use a sliding scale approach in equal protection analysis. He suggested that when discrimination against important individual interests with constitutional implications and against disadvantaged or powerless class is involved, a variable standard of review should be used. 3. Omnibus Crime Control and Safe Streets Act of 1968, P L. 90-351, 82 Stat. 197. 4. By Executive Order No. 9727, "Possession, Control and Operation of Certain Railroads," of President Truman, the government in 1946 took over operation for purposes of public health and welfare. 5. Richard Hofstadter, Anti-Intellectualism in American Life (New Y o r k : Alfred A. Knopf, Inc., 1963). 6. War Powers Resolution, P.L. 93-148, 87 Stat. 555, directs the President to consult with Congress, when possible, before and during the commitment of U.S. armed forces to hostilities abroad, and denies the President authority to commit forces overseas for combat for more than 120 days without specific congressional approval. 7. Youngstown Sheet & Tube 343 U.S. 579, 634 (1952).

Company

442

v.

Sawyer,

8. T h e Cleveland Foundation, Criminal Justice in Cleveland: Reports of the Cleveland Foundation Survey of the Administration of Criminal Justice in Cleveland, Ohio, Roscoe Pound and Felix Frankfurter eds., (1922). 9. In Brown v. Board of Education, 347 U.S. 483 (1954) and 349 U.S. 294 (1955), the Court declared the doctrine of "separate but equal" as having no place in public education as segregation of children by race deprived minorities of equal educational opportunities. 10. Engel v. Vitale, 370 U.S. 421, 422 (1962), invalidated the daily recitation of prayer in New York State public schools. 11. School District of Abington Township (Pa.) v. Schempp, 374, U.S. 203, 205 (1963), declared invalid Bible reading and recitation of the Lord's Prayer in school classrooms. 12. United States v. Nixon, 418 U.S. 683 (1974). The Court affirmed the District Court order that the President did not have the power through executive privilege to withhold information necessary to a grand jury investigation and to refuse confidential communication sought by a subpoena duces tecum. 13. Herbert Wechsler, "Toward Neutral Principles of Constitutional Law," in Principles, Politics and Fundamental Law (London: Oxford University Press, 1961). This essay attempts to formulate and apply the minimum criteria of a defensible judgment by the Supreme Court in interpretation of the Constitution. 14. Louis Lusky, By What Right?, A Comment on the Supreme Court's Power to Reverse the Constitution (Charlottesville: Michie Co., 1975). This is a survey of the decisions of the Supreme Court since 1937 and a criticism of those judicial actions beyond the Court's constitutional powers. 15. The diversity of citizenship rule requires that plaintiffs and defendants be citizens of different states. When diversity of citizenship exists and the amount in controversy exceeds $10,000, the case may be heard in the federal courts. 16. Graham v. John Deere U.S. 1 (1966).

Co. of Kansas

City, 383

17. Holtzman v. Schlesinger, 484 F.2nd 1307 (2nd Cir. 1973) and 414 U.S. 1304 (1973). 18. Aaron Wildavsky, " T h e Two Presidencies," an essay in Perspectives on the Presidency, Stanley Bach and George T . Sulzner, eds. (Lexington, M a s s : D. C. Heath &: Co., 1974). 19. United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320 (1936). T h e Court upheld a congressional delegation of authority to the President and, in dicta, referred to the "plenary and exclusive power of the President as the sole organ . . . in the field of inter-national relations." 20. Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), ruled that, except when the Constitution, treaties or statutes of the U.S. otherwise provide, state laws should be regarded as rules of decision in trials at common law in federal courts. 21. Study of the Division of Jurisdiction Between State and Federal Courts, published 1969.

Notes tc Discussion

Material

22. Report of the Study Group on the Caseload of the Supreme Court, 1972, by the Study Committee on the Caseload of the Supreme Court, Paul A. Freund, chairman. (Federal Judicial Center—57 F.R.D. 573.) 23. Henry J. Abraham and J. A. Corry, Elements of Democratic Government, 4th ed. (New York: Oxford University Press, 1964). 24. Rexford G. Tugwell, The Emerging Constitution (New York: Harper's Magazine Press, 1974). 25. Roth v. United States, 354 U.S. 476 (1957) and Alberts v. California, 354 U.S. 476 (1957), ruled that obscenity was not within the area of constitutionally protected freedom of speech or press under the 1st or 14th Amendments, and the standard for judging obscenity was whether, to the average person applying community standards, the dominant theme of the materials appeals to the prurient interest. 26. Barron v. Baltimore, 7 Pet. 243 (1833), ruled that the just compensation provision of the Fifth Amendment applied only to federal laws, not to state laws. 27. William Anderson and Edward W. Weidner, eds., Intergovernmental Relations in the United States (as observed in Minnesota) (Minneapolis: University of Minnesota Press, 1960). This is a series of ten volumes studying the relations of the governments in such areas as education, fiscal relations, social welfare and the courts. 28. The President's Advisory Council on Executive Organization, created in 1969 and chaired by Roy L. Ash, president of Litton Industries, Inc., prepared a series of memoranda on reorganization of various departments and agencies, some of which were not publicly released by President Nixon. 29. Edward Bellamy, Looking Backward 2000-1887 (Boston: Houghton Mifflin Co., 1966). 30. Richard Goodwin, The American Condition (Garden City: Doubleday & Co., Inc., 1974). 31. Arthur Selwyn Miller, "Implications of Watergate: Some Proposals for Cutting the Presidency Down to Size," Hastings Constitutional Law Quarterly 2 (Winter, 1975), p. 68. 32. Senate Select Committee on Presidential Campaign Activities (known as the "Watergate Committee"), chairman, Senator Sam Ervin, met from February 1973 to June 1974. 33. A United States national security working group, headed by Henry A. Kissinger under Presidents Nixon and Ford and composed of the undersecretaries of the Departments of State and Defense, and the chairman of the Joint Chiefs of Staff, to review covert actions submitted by Defense and the CIA. 34. Richard E. Neustadt, Presidential Power, The Politics of Leadership (New Y o r k : John Wiley & Sons, Inc., 1960). 35. House Select Committee on Intelligence, chaired by Congressman Otis G. Pike, created 19 February 1975, ended May 1976. 36. O n 5 April, a reporter from the New York Times sought and obtained admission to the Committee II discussions, despite the wishes of the conference planners to close them to the press in the inter-

Notes to Discussion Material

est of open and uninhibited discourse. In a committee vote, the First Amendment claim by the reporter was overruled by the right of privacy of the discussants, one of whom based his exclusion vote on an unwillingness to accord special privilege to this reporter. 37. Tonkin Gulf Resolution, H. J. Res. 114S, P.L. 88-408, 78 Stat. 384, approved 10 August 1964 and repealed by S. Con. Res. 64, 10 July 1970, and sec. 12, P.L. 91-672, 84 Stat. 2053. 38. Frederick C. Mosher, et al., Watergate: Implications for Responsible Government (New York: Basic Books, Inc., 1974). 39. Impeachment of Richard M. Nixon, President of the United States, Report of the Committee on the Judiciary, U.S. House of Representatives, No. 1305, 93rd Cong. 2nd Sess. 20 August 1974. 40. Rep. Henry S. Reuss introduced on 15 August 1974 H.J. Res. 1111 to propose a constitutional amendment regarding a congressional vote of no-confidence in the President. This resolution was not acted on. But see Congressional Record, 15 August 1974, p. H-8506. 41. See n. 40 above. 42. The 21-day rule allowed the chairman of a standing committee in the House of Representatives to call up a reported bill after 21 days if it had not been granted a rule by the Rules Committee, an effective means of forcing the committee to release a resolution authorizing House considération of a bill. Since the 90th Congress, the rule is no longer in effect. 43. Legislative Reorganization Act of 1946, P.L. 7 9 601, 60 Stat. 812, 2 August 1946. 44. Charles Montesquieu, The Spirit of the Laws, Thomas Nugent, trans. (Chicago: Encyclopaedia Britannica, 1955). 45. Congressional Budget and Impoundment Control Act of 1974, P.L. 93-344, 88 Stat. 297. 46. Voting Rights Act of 1965, P.L. 89-110, 79 Stat. 437. 47. Jeffrey L. Pressman and Aaron Wildavsky, Implementation: How Great Expectations in Washington are Dashed in Oakland (Berkeley: University of California Press, 1973). 48. Daniel P. Moynihan, Maximum Feasible Misunderstanding (New Y o r k : The Free Press, 1969). 49. H.R. 12048 reported 6 April 1976, which failed to pass the House 21 September 1976, would have amended Title V of the U.S. Code to improve agency rulemaking by allowing public participation, procedures for congressional review of agency rulemaking, and judicial review. 50. H.R. 15, introduced 14 January 1975, passed thé House 29 September 1976. The Senate did not consider it. The purpose of the bill was to inform the public and government officials of the nature, extent and identity of lobbying organizations. 51. Government in the Sunshine Act, P.L. 94-409, 90 Stat. 1241, 13 September 1976, 5 U.S.C. 552b, provides that certain agency meetings shall be open to the public. 52. Boiling Committee. House Select Committee on

443

Committees, reported 21 March 1974. H. Rept. 916, 93rd Cong., Part 2. 53. See n. 49 above. 54. John Gilmore, "Institute Set up to Provide Specialists to Aid Congress," New York Times, 28 December 1975, p. A-26.

Committee III 1. V. O. Key (1908-63), American political scientist whose most famous work is Politics, Parties and Pressure Croups (New York: Thomas Y. Crowell Co., Inc., 1964). 2. Austin Ranney, Curing the Mischiefs of Faction: Party Reform in America (Berkeley: University of California Press, 1975). 3. Federal Election Campaign Act of 1971, P.L. 92225, 86 Stat. 3, and Federal Election Campaign Act Amendments of 1974, P.L. 93-443, 88 Stat. 1263. 4. David S. Broder, Washington political correspondent, author of The Party's Over (New York: Harper & Row Publishers, 1972). 5. A. Mitchell and M. K. Baird, American Values, Report No. 378 of the Long Range Planning Program (Menlo Park: Stanford Research Institute, June 1969). 6. Sydney J. Harris, columnist syndicated by Field Newspaper Syndicate, Chicago, III. 7. Buckley v. Valeo, 424 U.S. 1 (1976). The Court held that, among other things, the provisions of the Federal Election Campaign Act that limited campaign expenditures were unconstitutional. 8. War Powers Resolution, P.L. 93-148, 87 Stat. 555, directs the President to consult with Congress, when possible, before and during the commitment of U.S. armed forces to hostilities abroad, and denies the President authority to commit forces overseas for combat for more than 120 days without specific congressional approval. 9. Congressional Budget and Impoundment Control Act of 1974, P.L. 93-344, 88 Stat. 297. 10. Edward S. Corwin, The President: Office and Powers, 2nd ed. (New York: New York University Press, 1941). 11. Bernard Bailyn, The Ideological Origins of the American Revolution (Cambridge: Belknap Press, 1965). 12. Nixon v. Sirica, 487 F.2nd 700 (D.C. Cir. 1973). The court held that the Constitution did not confer upon the President the absolute discretion to withhold material subpoened by a grand jury, and that it was for the court and not the President to determine the applicability of executive privilege. 13. United States v. Nixon, 418 U.S. 683 (1974). The Court affirmed the District Court order that the President did not have the power through executive privilege to withhold information necessary to a grand jury investigation and to refuse confidential communication sought by a subpoena duces tecum. 14. Senate Select Committee on Presidential Campaign Activities v. Nixon, 498 F.2nd 725 (D.C. Cir. 1974). Suit was brought to compel enforcement of a subpoena duces tecum. When the requested mate-

444

rial was later given to the House Judiciary Committee, this action was dismissed. 15. Ethyl Corporation v. EPA, 541 F.2nd 1 (D.C. Cir. 1976). Cert, denied, 426 U.S. 941 (1976). The court upheld the determination of the EPA that lead emissions presented a risk of harm to health and that the regulations reducing the content of lead in gasoline were not arbitrary. 16. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935). The Court ruled that the codemaking authority conferred on the President under a provision of the National Industrial Recovery Act (NIRA) was an unconstitutional delegation of legislative power. 17. Panama Refining Co. v. Ryan, 293 U.S. 388 (1935). The Court held that because of the absence of a controlling standard, a provision of the NIRA was an improper delegation of power. 18. Rodway v. United States Department of Agriculture, '514 F.2nd 809 (D.C. Cir. 1975). Although administrative convenience and necessity of the administration of the food-stamp program may be considered, easily quantified and verified differences among recipients may not be ignored. 19. Amalgamated Meat Cutters v. Connolly, 337 F.Supp. 737 (D.C. D.C. 1971). The court held that the Economic Stabilization Act of 1970, which granted presidential authority to stabilize prices, was not unconstitutional as a delegation of legislative power. 20. Commonwealth of Pennsylvania v. Lynn, 501 F.2nd 848 (D.C. Cir. 1974). The court upheld the authority of the Secretary of Housing and Urban Development to suspend certain low-income housing projects where these projects were not achieving their congressionally intended purposes. 21. Train v. Cr'fy of New York, 420 U.S. 35 (1975). The Court affirmed the lower court ruling to compel allotment of funds authorized by the Federal Water Pollution Control Act. 22. Possibly a reference to American Federation of Government Employees v. Phillips, 358 F.Supp. 60 (D.C. D.C. 1973), which held that the act of the director of the Office of Economic Opportunity in terminating funding was unauthorized. 23. Presidential Recordings and Materials Preservation Act. P.L. 93-526, 88 Stat. 1659 and Nixon v. Sampson, 389 F. Supp. 107 (D.C. D.C. 1975). 24. Marbury v. Madison, 1 Cranch 137 (1803). 25. House Select Committee on Committees, reported 21 March 1974. H. Rept. 916, 93rd Cong., Part 2.

26. Employment Act of 1946, P.L. 79-304, 60 Stat. 23. 27. The Full Employment and Balanced Growth Act of 1975, the so-called Humphrey-Hawkins bill, was introduced 15 January 1975 as S. 50 in the Senate and H.R. 50 in the House. No final action taken. S. 50 and H.R. 50 were reintroduced 10 January 1977. H.R. 50 was signed into law 27 October 1978 as P.L. 95523, 92 Stat. 1887. 28. Area Redevelopment Act, P.L 87-27; 75 Stat. 47.

Notes

to Discussion

Material

29. Housing and New Urban Development Act of 1970, P.L. 9 1 - 6 0 9 , 31 D e c e m b e r 1 9 7 0 ; 84 Stat. 1770. Title V I I concerns new communities development. 30. Richard E. Neustadt, Presidential Power, the Politics of Leadership (New Y o r k : John W i l e y & Sons, Inc., 1960). 31. Civil Rights Act of 1964, P.L. 8 8 - 3 5 2 , 78 Stat. 241. 32. Voting Stat. 437.

Rights Act

of 1965,

P.L. 8 9 - 1 1 0 ,

79

33. H.J. Res. 1111, introduced by Rep. Henry S. Reuss on 15 August 1974, would have proposed a constitutional amendment relating to a vote of noconfidence in the President. No action was taken on the resolution. But see Congressional Record, 15 August 1 9 7 4 , p. H - 8 5 0 6 . 34. Comprehensive Health Planning and Public Health Services Amendments o f 1966, P.L. 8 9 - 7 4 6 , 80 Stat. 1180. 35. Ableman v. Booth, 62 U.S. 506, 21 How. 506 (1858). T h e Supreme Court has appellate power when the decision of a state court is against a right claimed under the Constitution or federal laws. 36. Possibly a reference to Vrothingham 262 U.S. 447 (1923). 37. Possibly a reference to Carter Co., 298 U.S. 238 (1936).

v.

Mellon,

v. Carter

Coal

38. T h e Kestnbaum Report was the final report of the U.S. Commission on Intergovernmental Relations issued on 20 June 1955 as Report to the President for T r a n s m i t t a l to Congress ( W a s h i n g t o n : Government Printing Office, 1955). 39. Harold Seidman, Politics, Position and (London: O x f o r d University Press, 1970).

Power

40. W a s h i n g t o n Metropolitan Area T r a n s i t lation C o m p a c t Act, P.L. 8 6 - 7 9 6 , 74 Stat. 1031.

Regu-

41. More Effective Programs for a Cleaner Environment, report released April 1974 by the Committee for Economic Development; I S B 0 - 8 7 1 8 6 - 0 5 3 . 42. D e l a w a r e River Basin Compact Act. P.L. 328, 75 Stat. 688. 43. Sterling

v. Constantin,

87-

287 U.S. 378 (1932).

44. O n 22 January 1971 Rep. Henry S. Reuss introduced H.R. 1092, to improve governmental relationships by providing federal block grants to states and localities where there is a demonstration of state intention to modernize state and local government. See Congressional Record, 17 D e c e m b e r 1970, p. H-12032. 45. Edwards v. California, 314 U.S. 160 (1941). T h e Court struck down a California law m a k i n g it a misdemeanor to bring into that state any indigent person who was not a state resident, holding that this law was an unconstitutional burden on commerce. 46. Shapiro v. Thompson, 394 U.S. 618 (1968). T h e Supreme Court ruled that state provisions which denied welfare assistance to residents who have not resided within the jurisdiction for at least one year immediately preceding their applications for assistance were unconstitutional.

Notes to Discussion Material

47. O n 16 November 1971 Senators Ribicoff and Pearson introduced amendments to the Revenue Act of 1971 (H.R. 10947) which would provide tax incentives to industries locating in depressed areas. See Congressional Record, 16 November 1971, p. S - 4 1 5 0 1 - 5 . 48. Lloyd N. Cutler and David R. Johnson, " R e g u lation and the Political P r o c e s s , " Y a l e Law Journal 84 (1975), p. 1395. 49. Administrative Procedure Act, 5 U.S.C, sec. 500 et seq. (1970). 50. Federal Hospital Council, established by the Hospital Survey and Construction Act. P.L. 7 9 - 7 2 5 , 58 Stat. 682, is in the Department of Health, Education and W e l f a r e . 51. T h e Federal Paperwork Commission, created by P.L. 9 3 - 5 5 6 , chaired by Rep. Frank Horton, issued a Final S u m m a r y Report ( W a s h i n g t o n : Government Printing Office, 3 O c t o b e r 1977). 52. Employee Retirement Income Security Act 1974, P.L. 9 3 - 4 0 6 , 88 Stat. 829.

of

53. T o n k i n Gulf Resolution, P.L. 8 8 - 4 0 8 , 78 Stat. 384, approved 10 August 1964, repealed by S.Con.Res. 64, 10 July 1970, and sec. 12, P.L. 9 1 - 6 7 2 , 84 Stat. 2053. 54. G.A.O. Report to Congress: U.S. Needed to Cope with Commodity Shortages, 1974 ( B - 1 1 4 8 2 4 ) .

Actions 29 April

55. Government and the Nation's Resources, report issued by the National Commission on Supplies and Shortages established by the D e f e n s e Production Act Amendments of 1974, P.L. 9 3 - 4 2 6 , 88 Stat. 1166 ( W a s h i n g t o n : Government Printing Office, December 1976). 56. S. 1 1 6 7 was introduced 12 M a r c h 1973. Extensive hearings were held, but no final action was taken. S. 1959, introduced 17 June 1975, had no action taken. 57. Revenue Sharing Act, P.L. 9 2 - 5 1 2 , 86 Stat. 919. 58. See n. 3 above. 59. " P u b l i c Opinion and the W a r in V i e t n a m , " released 15 M a r c h 1966, was an independent studv bv Sidney V e r b a , Gordon Black, Richard A. Brody, Paul Ekman, N o r m a n H. Nie, Edwin B. Parker, Nelson W . Polsby, Peter H. Rossi and Paul Sheatsley of Stanford University, in cooperation with the National Opinion Research Center at the University of Chicago. 60. S e n a t e Resolution 110, 1 April 1977, to establish a code of official conduct for the members, officers and employees of the U.S. Senate. 61. Harvey C. Mansfield, " R e o r g a n i z i n g the Federal Executive B r a n c h , " Papers on the Institutionalized Presidency ( W a s h i n g t o n : Brookings Institution, 1972).

Committee IV 1. Buckley v. Valeo, 424 U.S. 1 (1976), held that, among other things, the Federal Election Commission could not function in a rulemaking or adjudicatory capacity because of the separation of powers doctrine. 2. Louis Henkin, " 'A M o r e Effective System' for Foreign R e l a t i o n s : T h e Constitutional F r a m e w o r k , " statement before the Commission on the Organization

445

of the Government for the Conduct of Foreign Policy, 20 May 1974. Text edited and footnotes added for reprint in Virginia Law Review 61 (1975), p. 747, 751. 3. W a r Powers Resolution, P.L. 9 3 - 1 4 8 , 87 Stat. 555, directs the President to consult with Congress, when possible, before and during the commitment of U.S. armed forces to hostilities abroad, and denies the President authority to commit forces overseas for combat for more than 120 days without specific congressional approval. 4. National Security Act of 1947, P.L. 8 0 - 2 5 3 , 61 Stat. 495, established, inter alia, the National Security Council and the Central Intelligence Agency. 5. "Counter-Budget: A Blueprint for Changing National Priorities, 1 9 7 1 - 1 9 7 6 , " Robert S. Benson and Harold Wolman, eds., foreword by Sol M . Linowitz, released March 1971 by the National Urban Coalition. 6. Adam Yarmolinsky, "Organizing for Interdependence: T h e Role of Government," a paper prepared for the National Commission on Coping with Interdependence, Aspen Institute for Humanistic Studies (January 1976). 7. Henry Steele Commager, " A Declaration of Interdependence," written for the Philadelphia World Affairs Council, 1975. 8. H.R. 4438, 94th Cong. 1st Sess., would have provided for congressional review of international agreements which create a national commitment and for nullification by concurrent resolution of executive agreements. No final action was taken. 9. See n. 2 above. The report, together with seven volumes of appendices, was issued 27 June 1975. (Washington: Government Printing Office.) 10. United States v. Nixon, 418 U.S. 683 (1974). The Court held that the mere generalized claim of executive privilege, as distinguished from a specific assertion of such privilege against disclosure of diplomatic or military secrets, could not prevail over the due process demands for disclosure of all the relevant evidence in a criminal trial. 11. Espionage Act, U.S.C. Title 18, Sec. 791 et seq. 12. Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Underwater, T I A S 5433, entered into force 10 October 1963. 13. Treaty on the Non-Proliferation of Nuclear Weapons, entered into force 5 March 1970. 14. Tonkin Gulf Resolution, P.L. 8 8 - 4 0 8 , 78 Stat. 384, approved 10 August 1964, repealed by S. Con. Res. 64, 10 July 1970, and sec. 12 of P.L. 9 1 - 6 7 2 , 84 Stat. 2053. 15. "International Military Tribunal, Nuremberg," Whiteman's Digest of International Law (Washington: Department of State, 1968), 11, chap. 35, sec. 6, p. 880. 16. U.N.G.A. Resolution 1762 (XVII), 6 November 1972. 17. The political question doctrine is the concept that some constitutional issues are nonjusticiable because they are "political." See Baker v. Carr, 369 U.S. 186 (1962). 18. United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320 (1936), referred to the "plenary and

446

exclusive power of the President as the sole organ . . . in the field of inter-national relations." 19. Federation of American Scientists, Public Interest Report on First Use of Nuclear Weapons, September 1975 and November 1975. 20. Australia v. Prance, ICJ Yearbook, 1972-73, vol. 27, p. 130; New Zealand v. France, ICJ Yearbook, 1972-73, vol. 27, p. 133. 21. J. W . Fulbright, The Arrogance of Power (London: Jonathan Cape, 1967). 22. T h e Pact of Paris, the so-called Kellogg-Briand Pact, was signed 27 August 1928 by fifteen nations condemning recourse to war for the solution of international disputes. 23. Geneva Conventions on treatment of prisoners of war (6 U S T 3316); Care of wounded soldiers in the field (6 U S T 3314); Care of wounded sailors at sea (6 U S T 3217); and Protection of civilians during wartime (6 U S T 3516); dated 12 August 1949 and entered into force for the U.S., 2 February 1956. 24. Myres S. McDougal and Florentino P. Feliciano, Law and Minimum World Public Order: The Legal Regulation of International Coercion (New Haven: Yale University Press, 1961). 25. Henry A. Kissinger, Nuclear Weapons and eign Policy (New York: Harper & Bros., 1957).

For-

26. Dean Acheson, "Panel: Cuban Quarantine: Implications for the Future," remarks by the Honorable Dean Acheson, American Society of International Law Proceedings 57 (1963), p. 13. 27. The Pugwash Conference on Science and World Affairs was a meeting, convened periodically from 1953 until his death in 1979 by Cleveland industrialist Cyrus Eaton at this Canadian retreat, for the purpose of furthering world peace. 28. Transmission to Congress of International Agreements, the so-called Case Act P.L. 92-403, 86 Stat. 619, 22 August 1972. 29. Vienna Convention on the Law of Treaties, signed by the U.S. on 24 April 1970, received by the Senate as Ex. L. 9 2 - 1 . 30. Legislative Reorganization Act of 1946, P.L. 79-601, 60 Stat. 812, 2 August 1946. 31. Antonin Scalia, Assistant Attorney General, Office of Legal Counsel, Department of Justice. Memorandum, "Authority of the President to Enter into Executive Agreements," 15 December 1975, submitted to the House Judiciary Committee's Subcommittee on Separation of Powers. 32. Wilson

v. Girard,

354 U.S. 524 (1957).

33. Correspondence between President Richard M. Nixon and President Nguyen Van Thieu dated 14 November 1972 and 5 January 1973. 34. Agreement on Ending the War and Restoring Peace in Vietnam, text found in White House Press Release, 24 January 1973. 35. Barbara Tuchman, Guns of August Macmillan Co., 1962).

(New York:

36. McMahon Act of 1946, U.S.C. Title 42, sec. 2011 et seq. set up the Atomic Energy Commission

Notes to Discussion

Material

and Joint C o m m i t t e e on Atomic Energy to control atomic energy for peaceful purposes.

periment," University of Pennsylvania 123 (1975), p. 1318, at p. 1338.

37. T h e Resolution of U.S. Adherence to the W o r l d Court Protocols concerning recourse to the P e r m a n e n t Court of International Justice for settlement of differences between the U.S. and other states received a vote in the S e n a t e in 1935 of 5 2 - 3 6 , short of the required two-thirds vote.

51. Kennedy 1974).

38. Ex parte Milligan, 4 W a l l 2 (1866), held that Congress had no power to establish military commissions with judicial authority over citizens in states where neither war nor insurrection existed. 39. 2 Black 635 (1863). President Lincoln, in fulfilling his duties as commander-in-chief, had the power to institute a blockade of ports in possession of the states in rebellion, which neutrals were bound to observe. 40. Missouri v. Holland, 252 U.S. 416, 430 (1920), upheld a federal statute which implemented a treaty in conflict with a state law. 41. Retd v. Covert, 354 U.S. 1, 2 (1957). Dependents of military personnel could not constitutionally be subject to court-martial in a military court in a capital case. 42. M y r e s S. M c D o u g a l and Richard Arens, " G e n o cide Convention, and the Constitution," Vanderbilt Law Review 3 (1950), p. 683. 43. International Convention on the Prevention and Punishment of the Crime of Genocide, Ex. O . 8 1 - 1 , signed by the United States, 11 December 1948. 44. See n. 41 above. 45. T h e Connally Reservation (S.Res. 1 9 6 ; 61 Stat. 1218) to the United States Acceptance of Compulsory Jurisdiction of the International Court of Justice, 2 August 1946, reserves the right of the U.S. to determine which matters are within its domestic jurisdiction. 46. Rexford G. Tugwell, The Emerging Constitution (New Y o r k : Harper's Magazine Press, 1974), published under the auspices of the Center for D e m o cratic Institutions, S a n t a Barbara, California. 47. Cook v. United States, 288 U.S. 102 (1933). The U.S. under a treaty of 22 M a y 1924 with Great Britain was entitled to board British ships beyond the three-mile limit of territorial waters to ascertain whether the vessel was endeavoring to import alcoholic beverages into the U.S. However such boarding was forbidden if the vessel were beyond the threemil limit and not within one hour's sailing distance from the coast. 48. Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964). T h e judiciary would not examine the validity of a taking of property by a foreign sovereign government within its own territory in the absence of a treaty even if the complaint alleged that the taking violated customary international law. 49. T h e European Common M a r k e t and Euratom treaties were signed in R o m e on 25 M a r c h 1957. T h e E C M came into existence on 1 January 1958 with the aim of removing tariff, trade and other barriers among the member countries. 50. Louis H. Pollak, " T h e Constitution as an Ex-

Notes to Discussion Material

v. Sampson,

Law

Revieic

511 F.2nd 430 (D.C. Cir.

52. Baker v. Carr, 369 U.S. 186 (1962), finding no obstacle to the political question doctrine, held that malapportionment of state legislatures may constitute a violation of the equal protection clause and that federal courts are empowered to find a remedy. 53. Holtzman v. Schlesinger, 484 F.2nd 1307 (2nd Cir. 1973) and 414 U.S. 1304 (1973). 54. Myres S. M c D o u g a l and Asher Lans, " T r e a t i e s and Congressional-Executive or Presidential Agreem e n t s : Interchangeable Instruments of National Policy," Y a l e Law Journal 54 (March 1945), pp. 181, 534. 55. Alfred Dunhill of London, Cuba, 425 U.S. 682 (1976).

Inc. v. Republic

of

56. Joseph S. Clark, Congress, The Sapless Branch (New Y o r k : Harper &: Row Publishers, 1964), see esp. chap. " T u g of W a r with the W h i t e House." 57. Rights of Nationals of the United States of America in Morocco, Judgement, I.C.J. Reports 1952, p. 176. 58. T h e so-called Bricker Amendment (1952) to the Constitution sought to prevent a treaty or any international agreement from coming into effect if it conflicted with the Constitution, and to prevent a treaty from coming into effect in domestic law except by enabling legislation. T h e proposal was defeated. 59. Carriage of Goods at Sea Act, 46 U.S.C., sec. 1300-15. 60. T h e Brussels Convention of 1924, amending the Hague Rule of 1921, was to establish uniform ocean bills-of-lading to govern rights and liabilities of carriers and shippers in international trade. 61. Convention on the Territorial Sea and the Contiguous Zone, Convention on the High Seas, Convention on Fishing and Conservation of the Living Resources of the High Seas, Convention on the Continental Shelf, entered into force 10 September 1964, 30 September 1962, 20 M a r c h 1966 and 10 June 1964 respectively. 62. Department of State Circular 175, Procedures, 11 Foreign Affairs Manual, chap. 700, sec. 720.2(d) and 722.3(c), " T r e a t i e s and O t h e r International A g r e e m e n t s , " revised 25 O c t o b e r 1974. 63. Senate Select Committee on Presidential Campaign Activities v. Nixon, 498 F.2nd 725 (D.C. Cir. 1974). T h e Court of Appeals ruled not to enforce a subpoena duces tecum served on the President because the material was not critical to the committee's performance of its legislative functions. 64. lurney v. MacCracken, 294 U.S. 125 (1935). T h e power of a house of Congress to punish a private citizen who obstructs performance of its legislative duties includes the authority to cite for contempt a witness charged with having permitted the removal and destruction of papers which he had been subpoened to produce. 65. W a t e r g a t e Investigation Court Jurisdiction Act, P.L. 9 3 - 1 9 0 , 87 Stat. 736.

447

66. Harold Nicolson, The Evolution of Diplomatic Method (New York: Macmillan Co., 1954). See chap. 4. 67. The Freedom of Information Act of 1966, P.L. 89-554, 80 Stat. 378, requires government agencies to publish in the Federal Register their opinions, orders, and a description of their various activities. 68. Environmental Protection Agency v. Mink, 410 U.S. 73 (1973). The Freedom of Information Act of 1966 provides that government agencies shall make available to the public a broad spectrum of information, but exempts from its mandate certain specified categories of information. 69. James Forrestal, The Forrestal Diaries, Walter Millis, ed. (New York: Viking Press, 1951). 70. United States v. Pink, 315 U.S. 203 (1942), is a

448

leading case giving legal effect to an international agreement made by the President on his own authority. 71. The Vandenberg Resolution, S.Res. 239, 80th Cong., 2nd Sess. 11 June 1948, reaffirmed United States policy to achieve peace through the U.N. 72. Bayless Manning, " T h e Congress, the Executive and Intermestic Affairs: Three Proposals," For eign Affairs 55 (January 1977), p. 306. 73. See n. 32 above. 74. The amendment concerns the suspension ot U.S. foreign assistance under certain circumstances. See Legislation on Foreign Relations with Explanatory Notes, February 1979 (Washington: Government Printing Office, 1979), Vol. I, p. 101 for sec. 620(e) of the Foreign Assistance Act of 1961, as amended.

Notes

to Discussion

Material

REFLECTIONS ON THE CONFERENCE by Herbert Wechsler I may say that, when I was asked to take the chair at the conference, I deemed it a great honor. I did not realize, however, how small the function was that I would be called upon to perform, so that I, for the first time in my life, have been the incumbent of a position that I can only describe as a sinecure. That was due, of course, to the genius that went into the organization of this conference, on the part of both the Academy committee and the superb staff headed by Mrs. Truscott, the coordinator. I run many conferences myself, and I have never encountered one where the participants were so unanimously grateful for the arrangements made, the solicitude of their host, and the pleasure of the meeting. It is perfectly true that the target was not thought by most of the conferees to be to produce an agenda for reform, and I make no apology for the fact that many of them had as a very serious purpose merely the improvement of their own minds. In this age of activism and activity, such simple, personal desires as the desire for understanding and information are often lost sight of, but it surely was appropriate, from the point of view of the Academy, that that purpose be given the priority that it received in the conference. The format was such that the advantages that we perceived in the interchange over the days that we were together will, through careful editing and significant publication plans, be made available in the future to all our colleagues in this field. I should say a word about the people who were present, because I don't think you have had any information on that score. As f a r as I can see, aided by Mrs. Truscott, w e had between seventy-five and eighty participants, not all of whom were present all the time, but most of whom were with us most of the time. A s you would suppose, it was a fairly heavily academic group. We had twelve law professors, ten professors of political science, four professors of history, two professors of sociology. The significant

point about these academics was, however, a point that I think is important in our culture—that though they are academics now, they haven't been all their lives. They illustrated the mobility that our culture provides among government, educational activities, pedagogy, business, and other forms of participation in the life of our time. In any event, the present academics were not alone in the group. There were three sitting congressmen, an ex-United States senator; there were government officials, both federal and state, labor union people, people in business, management of corporations, practicing lawyers— and again that illustrates the point. One of the practicing lawyers was the former Solicitor General of the United States, Erwin N. Griswold, one of the best solicitors, I think, in many years. He is now in private practice but was, as you know, for so many years dean of the Harvard Law School; so—government official, teacher, lawyer, all in the person of the same man. Then we had ten active judges, sitting judges, five drawn from the United States Courts of Appeals, all of great ability and distinction in my profession. Mr. Justice Tom C. Clark, a retired justice of the Supreme Court, after eighteen years on the bench, was also present. He is still sitting, as a retired justice may, in the lower federal courts. There were also two journalists, and so it went. While I suffered from the inexorable limitation of not being able to be in more than one place at once, I did make an effort to move around from group to group, and I never encountered a moment where the interchange was not hot and heavy. I thought some pretty stupid things were said and some very wise things were said, and it was, perhaps, the pace and quality of that dialogue that even our superb reporters were not quite able to put before you in their summaries, because the nature of their task was, of course, to impose order upon chaos, which they did superbly. The chaos was, however, both instructive and interesting. I hope that the final publication will draw more heavily on the actual text of the dialogue in these proceedings, which were stenotyped, taped, video taped—I don't suppose anything in the history of the world has ever been as fully recorded as these discourses. For that, we are indebted to the Sun Oil Company, as we are for the other aspects of the great hospitality that we enjoyed. At the opening of the conference, I took the occasion to speak very briefly, and one of the things that I mentioned—because of some of the mail I had been getting—was that the idea seems still to be abroad that it is impious or worse to undertake to criticize our basic charter. I asked the conferees to repudiate that point of view, and to feel as free to criticize as to extol. This was a bit of advice that I'm glad to say they followed. I must confess, however, that I felt a little supererogatory in making that point to a group of people who didn't need it made to them. But I felt quite vindicated the next day when there appeared out front a band of pickets who were denouncing us as traitors and conspirators. When I saw them, I thought I had done very well as an inadvertent prophet. They provided a formal demonstration of what I was talking about in referring to that sentiment in the land.

452

Herbert

Wechsler

I wish those pickets knew, however, how little basis there was for their suspicions in the actual deliberations of the conference. Indeed, on Thursday, Senator Clark, as you may know, attacked us bitterly as a bunch of mossbacks and conservatives because we didn't really take on the problems of nuclear war and the threatened destruction of the world. In Senator Clark's view, there is grave doubt whether there will be a third century, and he thought we should somehow deal with that doubt. Well, maybe we would have had something to contribute on that score, but I doubt it. The other incident that was amusing to me—because in my professional career, I represented newspapers in cases involving First Amendment problems, including the New York Times—was that we were roundly castigated for not admitting the press to these committee discussions. Indeed, here in Philadelphia, I think you've seen enough of that in the papers. I must say that this was not an unforeseen problem. W e had been pressed in the preliminary planning to open the entire conference to the press, and I want to express my admiration for the Academy committee, your committee, in standing firm for the proposition that admitting the press to these committee discussions would simply have destroyed the spontaneity and usefulness of the proceedings. But that response did not satisfy the reporters who wanted to get in, because they knew something about the First Amendment, and it was put to us that they had a First Amendment right to sit in our proceedings. When President Wolfgang pointed out to them that the Constitutional Convention had been closed and that the fathers had pretty well agreed that, if it hadn't been closed, there wouldn't have even been a Consituation, my old friend Mr. Israel Shenker of the New York Times made the insightful lawyer's observation that that was before the First Amendment. Well, having represented the New York Times and knowing the publisher and many of the editorial staff, I thought to myself that it would be amusing, when I get back to New York, if I wrote a letter to Mr. Sulzberger demanding the right all the next week to attend the editorial conferences of the New York Times, placing my demand, of course, on First Amendment grounds and invoking Mr. Shenker in support. I must say, as I read what has been published, I think it provides a visual demonstration of how useful it was to close the committee sessions. For what has the press found interesting about our conference? The only things that the reporters have been disposed to give attention to are the few inflammatory and critical remarks that were made in the course of the plenary session on Thursday. And that, of course, is exactly what would have happened if they had been sitting around during the committee deliberations. I wonder if the time may not sometime arrive when we will have a press that is able to take ideas seriously and not feel the need to ferret out inflammatory headlines on which to hang a story. But I'm still prepared to fight and die for their right to make fools of themselves, as they do.

Reflections on the Conference

453

I am sure you were intimidated, if you looked at the program, to see that I am scheduled to make a speech on major themes of the Bicentennial Conference. Of course, the thing that you need at this point is a summary of the summaries you have been listening to for the last couple of days! I can assure you that I have no such intention, and ought to be forcibly removed if I did. But I do wish to say a few things that simply embody some reflections of mine on what might be called the thrust or the conclusions of the conference. I'm reminded of a story told about Gertrude Stein. On her deathbed, her biographer and great friend, Alice Toklas, was leaning over her and heard her whispering something. What she heard was: "What is the answer? What is the answer?" When no one responded, she said: "Well, then, what is the question?" And at that point, she died. I think this has a certain application to the work of our conference. I would be far from saying that the days produced answers, but I think youH find—have already found from the reporters' and keynoters' participation here, but will find it more clearly when you study the record—that we did produce a marvelous canvass of the questions. And I mean by that the questions that people who are serious about our government and our culture and our future ought to focus on as they participate in our political and governmental processes and ruminate about our prospects. At the start of the conference, I had attempted to stimulate the conferees to take a precise focus on constitutional issues, that is to say, on issues that could be resolved either by agreeing to, supporting, or rejecting specific proposed changes in the fundamental law. That little speech of mine was like the chaplain's prayer before a political meeting, of which it has been said that it is always unexceptionable in itself, but never determinative of the subsequent proceedings. My suggestion certainly was not determinative of the subsequent proceedings, because the committees ranged very broadly over problems of government in general. But as I wandered around, I concluded that this was a virtue rather than the contrary. That is to say, how could you tell whether the fundamental law was in need of change unless you assessed the problems that government faces and may be expected to face in the future and the means that are available for the solution of those problems? And so it was, I think, enormously significant that it was the general view of these conferees, and the four groups in which they talked for so long, that we could not perceive major problems of our government, culture, and social order that we could say were insoluble within the framework of our present charter. That is a negative conclusion, if you like, and yet, it seems to me, a conclusion of enormous importance. Even here, I must say, I had made an effort at the beginning to stimulate attention to what I thought might be taken to be a problem, namely, the enormous obstacle that the Constitution as it stands poses to amendment. That is, the provisions of Article V, the amending

454

Herbert

Wechsler

clause, require a two-thirds vote in each house in support of a resolution of amendment and then ratification in three-quarters of the states, either by their legislatures or by conventions, as Congress may determine when the amendment is proposed. Whether a country of over 200 million people can live with a fundamental law born in the 18th century and supplemented, as Dr. Wolfgang said, only really significantly by the Civil W a r Amendments, with change possible only by a consensus of that magnitude, seemed to me, in itself, a constitutional problem of major significance. Well, again, the chaplain's prayer. You will be interested to know that no one on the four committees even considered this an issue worthy of consideration. So, I must read the record to mean that our conferees, at least, are satisfied with the amending process as it stands. Again, I think this is an enormously significant conclusion. I don't say that it's wrong, I say that it's significant. Now, how could this be the case? Well, obviously only because the framers were perspicacious enough to establish a governmental structure with sufficient flexibility in the joints so that adaptations can be made as needed, to a very considerable degree at least, without the necessity of amendment. I thought this general satisfaction with the amending clause particularly surprising, I may say, in relation to the role of the Supreme Court of the United States as the final interpretative voice of the Constitution, since I put it to you that the impact of the amending clause, as it stands, really falls most heavily there, in the magnitude of the political support required to overcome a decision that is restrictive of the legislative power. That is, in the structural part of the Constitution, the establishment of the organs of authority—bicameral legislature, and so on—even today, one would be hard put to persuade that a different structure would produce a better result. It's simply too incalculable. It's too hard to prove, to envisage what different consequences might be. The difficulty of amendment does not weigh heavily upon that area of our polity. But as to the Bill of Rights and the 14th Amendment, we know that, to a very considerable degree, the moral standards of our culture have been transformed by decisions of the Court in our own lifetime, and that that Court continues to exert a major role in the unfolding of safeguards for individuals, the autonomy of individuals, that no other government in the history of the world has ever achieved or, indeed, is ever likely to achieve. And for the most part, the sole escape from such determinations of the Court is by amendment! Well, this problem was discussed in Committee I, but as the report of that committee indicated, that committee viewed the changes wrought by decisions of the Supreme Court not as a problem, but, indeed, as one of our principal glories as a people, a nation and a government. I was struck by this consensus, I must say. I've been a politician too long not to remember when it wasn't so. Indeed, did any of you attend the meeting of this Academy forty years ago, at which Thomas Reed Powell, speaking of a very different Supreme Court imposing very different kinds of restraints, produced a cheering audi-

Reflections on the Conference

455

ence b y his denunciation of that august body and the substance and reasoning of its decisions? I wondered, I must say, how representative the view of Committee I was in its complete and total acceptance of the role that the Court has performed in recent years. W e had no one who apparently objected to the decision on school prayers, for example, or to the decision on abortion. W e had no exponent of the current Boston view on busing and, indeed, it wasn't even there, but in another committee, that there was extended discussion on problems of crime and the call for greater security in the streets. I should like to think that the acquiescence and acceptance and approval of Committee I and, indeed, its incitement toward an even greater judicial drive toward the realization o f equality of opportunity, which you heard in the report, does represent an American consensus. I have my doubts about it, however, and was impressed by what was said in Committee II by George Reedy, a man of considerable wisdom and experience, who you remember was press secretary to President Johnson. He said he liked what the Court was doing but could not avoid the apprehension that it was taking an awful lot of money out of the bank and would do well to put a little money back from time to time. I thought that was a rather nice way of expressing a concern that, I think, the conference might have examined in greater detail than it did, J?ut please don't construe this as an attack on the Supreme Court or on any particular decisions. I do not mean it that way. I do mean to say that any serious consideration of the Constitution must reflect on the fact that the Supreme Court is called upon to apply to the varying demands of humanity over time such brooding phrases as privileges and immunities of citizens of the United States, due process of law, equal protection of the law, and so on. I'm reminded, in this connection, of a passage in Professor Fairman's current volume of the Supreme Court history, quoting a comment b y Congressman Boutwell of Massachusetts about Congressman Bingham of O h i o , the draftsman of Section I of the 14th Amendment, particularly concerning the privileges and immunities clause: " I t s euphony and indefiniteness of meaning were a charm to h i m . " W e l l , its euphony and indefiniteness of meaning have given the Supreme Court the enormous role that it performs in our lives, and this is neither politically, governmentally nor socially a matter to be passed over lightly. I had the pleasure only the other day of reading the lectures given by Archibald Cox at All Souls College in O x f o r d , the Chichele lectures of 1 9 7 5 , just published by O x f o r d Press under the title The Role of

the Supreme Court in the American System of Government.

Professor

C o x , who is in general, as I am, a supporter of the Court, develops in an enormously perceptive way in these five lectures the concerns to which I have briefly alluded. I had another surprise in the conference. Both Committee II and Committee III devoted an enormous part of their time, particularly Committee III, to talking about presidential primaries, and I don't

456

Herbert

Wechsler

think it was only that this particular form of divertissement is occurring right at the moment. This was a matter of serious concern about governmental problems; and you remember they had thoughts about regional primaries and the like, all of which are interesting. But the thing that surprised me was that there was not a single voice that considered that changes in the basic constitutional method of presidential choice were worthy of consideration. I don't have in mind now merely the old issue of the electoral college, which really has ceased to be much of an issue, because, really, what difference does it make if you count up state choices by counting real people in the electoral college or using a mathematical formula allotting the same weight to the voters in each of the several states? But what I should have thought terribly important to focus on is that provision of the 12th Amendment, going back really to the original plan, that throws the choice of a President to the House of Representatives, in the event that no candidate receives a majority of the electoral votes, and that calls for voting in the House of Representatives by states rather than per capita, so. that the vote of Nevada would have the same weight in the presidential choice by the House as the vote of Pennsylvania or California or New York. Now, of course, you can say that that's an abstract concern. But I'm surely not alone here in remembering the election of 1 9 4 8 , in which the Dixiecrat candidate got, as I recall, thirty-nine electoral votes, and a shift of 2 5 , 0 0 0 or so popular votes in O h i o and California would have thrown the election to the House. And what would the position then have been the House delegations? T h e names before the House would have been, of course, T r u m a n , Dewey and Senator Thurmond. Well, I don't suppose T h u r m o n d could have been elected, but he might have had enough delegations to support him to prevent a majority vote of states in the House and permit Alben Barkley, the vice presidential candidate who would have been elected by the Senate, to succeed to the presidency. T h a t was, at least, one of the game plans of that time and there, of course, were others. I am not privy to the deliberations of the Wallace campaign, but could it be that such thoughts may, from time to time, have been ventilated in those quarters? In any event, I say that I was rather surprised that this matter did not receive attention, the more so since President Lyndon Johnson did propose that there be a change on that score and that, in the event of failure of a majority, the choice should fall to a per capita vote of both houses, as it does under the 25th Amendment now, when there's a vacancy in the vice presidency and a nomination is made by the President in office. T o be sure, Arthur Schlesinger and Senator Kennedy seem to think that the 25th Amendment was a failure and ought to be reexamined. I regard it as one of the great constitutional achievements of the recent past; and I should suppose that the succession of President Ford, far from demonstrating that some other plan was needed, shows what a great success it w a s — n o t that I am announcing my support for President Ford, but I am announcing my happiness that a succes-

Reflections on the Conference

457

sion was achieved and achieved as peacefully and easily as it was. I am not disposed to feel greater pleasure in the vote of the parliamentary Labour Party to supplant Prime Minister Wilson by Mr. Callahan, simply by that vote, than in a process in which the entire Congress of the United States takes part. After all, it was just the barest accident that the Constitution came out of Philadelphia without a plan for the President to be chosen by Congress. T h a t was the plan until very near the end, and it was only the desire for greater presidential independence of Congress that led to the provisions that developed. I guess the one thing that present experience teaches us is that you can have a President confirmed by vote of both houses who doesn't suffer from undue reliance or dependence on the Congress. Whatever else one may think of Gerald Ford, I don't think the historians will say that he suffered from subservience to Congress. The main contribution of the conference was, of course, the conclusion which has been expressed earlier, that, despite the wealth of reflection given to our current governmental problems, there was a close approach to a consensus that they are soluble within the present framework. O n e might say that the lesson was embodied in the words that Shakespeare has Cassius address to Brutus: " T h e fault . . . is not in our stars, but in ourselves." And I think it is splendid for the Academy to carry that message to the American people, that despite the magnitude of our problems, domestic, foreign, scientific, cultural, economic, ethnic and moral, the future lies within our grasp as a nation and its shape will depend upon ourselves.

458

Herbert

Wechsler

tMVv+'H«*!'* | \ IM. A hin-

of

tritv«f

rtwumimiA

Q

s

a

o

o

p

J 5 3 ng P Q 2 3 3 1 S S H S l C S K Ì C? O 3 3 Î S J X i assi

iWfi ÄKf priSSJGSi tiO» ¡jte^M Attor

HftifflTíf »

INDEX

SUBJECT INDEX

Acheson, Dean, 141, 3 7 2 - 7 5 , 425 Adams, John Quincy, 229-29, 392 affirmative action. See equality Aiken, George D., 2 2 5 - 2 6 Amendments to the U.S. Constitution 1st, 42, 1 1 4 - 1 7 , 119, 1 2 1 - 2 2 , 137, 167, 173, 455 5th, 36, 40, 58, 64, 116, 122 6th, 40, 64, 158 9th, 172 12th, 459 13th, 38, 43, 50, 64, 100, 115 14th, 36, 3 8 - 4 1 , 43, 45, 48, 50, 57, 64, 74, 79, 8 1 - 8 3 , 100, 115, 117, 122, 457-58 15th, 38, 43, 50, 64, 100, 115 16th, 2 8 7 - 8 8 20th, 40 22nd, 183, 222 25th, 203, 222-23, 272, 459. See Bill of Rights; Equal Rights Amendment America's third century, critical

also

problems of, 4 0 0 - 4 0 2 American Bar Association, 155, 164, 222 American Law Institute, 159 Anderson-Weidner studies on intergovernmental relations, 168 Aristotle, 31 Arms Control and Disarmament Agency ( A C D A ) . See disarmament Articles of Confederation, 34 Ash Council reports, 171 Aspin, Les, 359 Asset Depreciation Range ( A D R ) , 307, 321 Bailyn, Bernard, The Ideological Origins of the American Revolution, 255 Bangladesh, 376 Beame, Abraham D., 295 Bellamy, Edward, Looking Backward, 2000-1887, 173 Benton, William, 123 Bickel, Alexander, 220 Bill of Rights, 38, 4 2 - 4 3 evolution of, 6 3 - 6 5 , 401, 457 and international tribunals, 3 9 5 - 9 6 pursuit of happiness in, 29 and Utah Supreme Court, 167. See also Constitution Black, Hugo L„ 122, 152, 161 in Engel v. Vitale, 145 Boiling Committee, 2 1 5 - 1 6 , 232, 263, 269. See also Congress, committee system in Borah, William E„ 229

Brandeis, Louis D., 163, 259 Brennan, William J., Jr., 152 British Labour Party, 2 1 1 - 1 2 Broder, David S„ 2 3 8 - 3 9 Brown, George S., 189 Brown, Jerry, 297, 300 Brownell, Herbert, 117 Bryce, James, 47 budget reform act. See Congress, and Congressional Budget Office; Congressional Budget and Impoundment Control Act bureaucracy, 171, 1 8 5 - 8 6 , 1 8 9 - 9 0 , 192, 1 9 9 - 2 0 0 , 223 and national security matters, 153-55, 184-85 and President, 1 8 7 - 8 8 , 194, 197, 254, 268, 273, 2 9 6 - 9 8 and public policy-making, 231, 296-98 reform of, 1 3 8 - 3 9 . See also independent agencies; President Burke, Edmund, 65 Burns, Arthur F., 171 Byrnes, James F., 183 Cabinet. See President campaign financing. See C o n g r e s s ; political parties; presidential primaries Carriage of Goods at Sea Act, 416 Carter, Jimmy, 237, 243 Case Act (Transmission to Congress of International Agreements), 378, 3 8 4 - 8 5 , 387 Case, Clifford P., 378, 3 8 4 - 8 5 Castle, Barbara, 89 Center for Political Studies (University of Michigan), 2 4 0 - 4 1 Central Intelligence Agency, 153, 1 9 9 200 Church, Frank, 430 church-state relations, and 1st Amendment, 42 citizen participation in government, 232, 3 1 3 - 1 7 and confidence in government, 232 and Congress, 341, 345, 399, 419 in foreign relations matters, 314, 340, 351, 3 9 7 - 9 9 , 4 1 8 - 2 1 , 425 through public interest groups, 3 1 7 - 2 1 , 3 2 3 - 2 4 , 421 and voter participation, 317, 323, 327-29 civil rights and Civil Rights Act of 1957, 207 and Civil Rights Act of 1964, 52, 73, 83, 99, 269 and Congress, 2 0 6 - 7 , 214

civil rights—cont. and courts, 2 1 3 - 1 4 and discrimination against women, 8 0 - 8 1 , 91, 109 and Equal Employment Opportunity Act, 111 and individual rights, 61, 1 0 4 - 5 and quotas, 87, 9 1 - 9 2 , 1 0 5 - 6 and racial discrimination, 72-75, 83, 87, 91, 97 and reverse discrimination, 9 1 - 9 2 and separate but equal doctrine, 58 and Voting Rights Act of 1965, 54, 5 8 - 5 9 , 212, 269, 318. See also constitutional rights; Equal Rights Amendment; equality Civil Service Commission, 301 Clark, Tom C., in School District of Abington Township (Pa.) v. Schempp, 145 Cleveland Foundation report on criminal justice in Cleveland, 145 Cleveland, Harlan, 346 Coleman Report on equality of educational opportunity, 63 Coleman, William I., Jr., 313 Commager, Henry Steele, 342, 350 Commission on Supplies and Shortages, 310 Committee for Economic Development, 287 Common Cause, 309, 3 1 8 - 1 9 , 3 2 1 - 2 2 , 324-26, 421. See also interest groups concurrent resolution, 344, 350, 393, 417, 430, 440 constitutionality of, 339, 3 5 4 - 5 5 , 378-84 legislative alternatives to, 3 8 6 - 8 9 and standing to see, 428-29. See also executive agreements; executive-legislative relationship; legislative veto Congress, 204-29 and Angola, 200-201, 347, 353, 364 and Bricker amendment, 4 1 5 - 1 7 and campaign financing, 209, 2 1 4 - 1 5 , 322 and citizen participation in government, 341, 345, 399, 419 and civil rights, 2 0 6 - 7 , 214 committee system in, 142, 215-17, 267, 4 3 0 - 3 1 and Congressional Budget Office (budget process), 2 0 8 - 9 , 217, 267, 2 6 9 - 7 0 , 280, 350, 3 9 3 - 9 4 , 433 (see also Congressional Budget and Impoundment Control Act) and criminal justice system, 57, 165-66

464

as decision-making body, 140, 144, 202, 2 0 5 - 7 , 210, 2 1 2 - 1 4 and Dien Bien Phu, 201 and economic aid programs (LendLease) 354, 356, 3 8 1 - 8 2 effect of political parties on, 252, 267 and energy legislation, 132, 136, 141-43, 207 and executive agreements, 385-86 (see also executive-legislative relationship; President) and financial disclosure, 3 3 0 - 3 3 and foreign relations responsibilities, 341, 343, 349-50, 358, 379, 4 2 9 - 3 0 , 433 (see also concurrent resolution; executive-legislative relationship; foreign relations ; President; treaties; War Powers Resolution) and General Accounting Office, 223 and gun control legislation, 131-33, 135, 140 and independent agencies, 299-300, 306-7 and individual rights, 61, 1 0 4 - 5 and Joint Committee on Atomic Energy, 263, 385, 422, 424 and Joint Economic Committee, 266, 306, 308 and legislation, 143, 217-18, 3 0 4 - 5 and Mayaguez affair, 264, 360, 3 6 4 65 and military establishment, 339, 3 5 9 - 6 0 , 362, 366-67 and minority interests, 5 8 - 5 9 , 69 and national security matters, 1 9 7 98 (see also executive-legislative relationship) and "new federalism," 170-71 and President Nixon, 186, 274 and Office of Technology Assessment, 367, 3 9 3 - 9 4 , 433 organization of, 433 and oversight of independent agencies, 136, 214, 262-65, 2 6 8 70 (see also concurrent resolution; executive-legislative relationship, and legislative delegation of authority; separation of powers) party discipline in, 205, 207-8, 210, 215, 217-18 and political consensus, 142-43 (see also foreign relations, popular consensus in matters of) and public policy-making, 231, 254, 2 5 7 - 6 6 , 268-72, 3 0 8 - 9 public view of, 127, 134, 214, 2 2 7 28, 245, 267-68

Index

reform of, 2 1 8 - 2 1 , 263, 269 and removal of President, 206, 2 7 0 72 research assistance for, 2 2 3 - 2 4 responsiveness of, 135, 144, 209, 215, 341, 345, 399 and right of petition, 2 1 2 - 1 3 and societal changes, 137 staffing of, 215, 2 1 8 - 1 9 , 263, 433 and standing to sue, 4 0 6 - 7 , 4 2 7 - 2 8 , 436 and sunshine laws, 209, 215 and treaties, 3 4 0 - 4 1 , 4 0 2 - 5 , 4 0 7 - 1 0 , 4 1 3 - 1 7 , 435, 437 (see also executive-legislative relationship; Senate, treaty power of) use of appropriations by, 3 7 8 - 7 9 use of joint resolution by, 3 4 6 - 4 7 , 3 8 6 - 8 8 , 390, 4 3 1 - 3 2 , 435 ( s e e also concurrent resolution; executivelegislative relationship, and congressional-executive agreements) and voter registration, 323 and "will to participate" in foreign affairs, 338, 358, 383, 422, 4 2 9 - 3 0 , 433. See also executive-legislative relationship; House of Representatives; S e n a t e Congressional Budget and Impoundment Control Act, 209, 252, 259, 267, 305 Connally Reservation (to U.S. adherence to International Court of Justice), 397, 404, 4 1 2 - 1 3 Constitution amendment of, 3 9 - 4 0 , 4 2 - 4 3 and Bill of Rights, 38 and Cabinet, 194 and changed U.S. world role, 347, 363 as compromise document, 141 and concurrent resolution provision, 381, 383 and Declaration of Independence, 33-34 on declaration of war authority, 365 distribution of power in, 42 and economic matters, 51, 173 and fraternity, 30 ideals in, 50, 75 judicial interpretation of, 4 2 - 4 3 , 149, 457-58 original meaning in, 3 2 - 3 3 , 3 8 - 3 9 , 4 3 - 4 5 , 364 and political participation, 33, 316 and political party system, 2 8 2 - 8 3 , 254-55

Index

and President, 186, 191, 460 reverence for, 303 as social document, 29 treaty approval in, 343, 409, 420. See also Amendments to U.S. C o n s t i t u t i o n ; Constitutional Convention of 1 7 8 7 ; constitutional clauses; constitutional rights Constitutional Convention of 1787 attitudes of framers of, 3 1 - 3 3 , 143, 202, 209, 303 Bill of Rights during, 6 4 - 6 5 , 1 2 2 - 2 3 and President, 460 and treaties, 409, 420, 432 Constitutional clauses case or controversy, 4 0 6 - 7 commerce, 39, 52, 6 6 - 6 7 compact, 2 8 6 - 8 7 due process, 38, 44, 115, 458 equal protection, 3 8 - 3 9 , 44, 458 federal-state, 343, 397 general welfare, 280 privileges and immunities, 51, 56, 458 supremacy, 4 1 2 - 1 3 . See also Amendments to U.S. Constitution constitutional rights and Congress, 61 and courts, 61, 458 development of, 29, 64 and evolution of equality, 2 9 - 3 0 , 74 nationalization of, 30 privacy, 36, 64. See also civil rights; Equal Rights A m e n d m e n t ; equality Coolidge, Calvin, 29, 172 Corry, J. A., 166 Corwin, Edward S., 255 Council of Economic Advisors, 2 6 4 65, 3 0 5 - 6 courts (federal), 1 4 4 - 6 6 and adversary process, 1 4 6 - 4 7 , 1 5 7 60 and civil rights, 2 1 3 - 1 4 communication by, 1 4 5 - 4 6 constitutional interpretation by, 4 2 43, 149, 4 5 7 - 5 8 and criminal justice system, 1 3 0 - 3 1 , 144 in discrimination suits, 90 and diversity jurisdiction, 146, 1 5 0 51, 155, 1 5 7 - 5 9 and free p r e s s / f a i r trial issue, 1 2 1 22 and independent agencies, 313 and inquisitorial system, 1 5 7 - 6 0 and judicial activism, 146, 1 5 6 - 5 7 , 215

465

courts (federal)—cont. and judicial independence, 147-49 and judicial salaries, 155 management and staffing of, 136, 146, 152-53 and national security matters, 1 5 3 55, 188 (see also Supreme Court) and public interest groups, 320 and public policy-shaping, 231-32 public view of, 127, 146, 2 5 8 - 5 9 selection of judges for, 1 5 1 - 5 2 , 16061 self-regulation of, 165-66 and three-judge district courts, 146, 155 and treaties and international law, 4 0 2 - 4 , 4 1 2 - 1 3 , 427-29, 4 3 5 - 3 6 (see also Supreme Court) courts (state) and diversity jurisdiction, 146, 15051, 155, 157-59 and federal courts, 150-51 management of, 152-53 self-regulation of, 166 Cox, Archibald, 458 crime and criminal justice system, 130-31, 133, 144, 165-66 and gun control legislation, 131 and Law Enforcement Assistance Administration, 130 and Omnibus Crime Control Act, 130 street, 129-30 criminal justice system. See crime Cuban missile crisis, 372-73 Curing the Mischiefs of Faction, 236 Cutler, Lloyd N., 299 Cutler, Robert, 190 Daley, Richard J., 86, 247 Declaration of Independence and Constitution, 33-34 and equality, 30 framers of, 3 1 - 3 3 and fraternity, 30 ideals in, 50, 74 and liberty, 30 as manifesto, 33 pursuit of happiness in, 29 Delaware River Basin Compact, 288 disarmament, 355-56, 360, 367, 379. See also military establishment Domestic Council, 170, 297 Dworkin, Ronald M., The Right to Co to Law School, 93 economic security, 35. See also equality

466

Eisenhower, Dwight D., 201, 279-80, 333-34, 353-54 on consultation with Congress, 229, 346, 410 on military, 3 6 0 - 6 1 on presidential responsibilities, 214, 437 and White House staff, 186, 189-90 electoral college, 204, 316, 459 reform of, 1 3 8 - 3 9 , 141 Ellsberg, Daniel, 352, 4 2 6 - 2 7 Employment Act of 1946, 264-66 Employee Retirement Income Security Act (ERISA), 304 Equal Rights Amendment, 48, 8 0 - 8 2 equality, 34-35, 5 9 - 6 0 and affirmative action, 38, 44, 76, 85-86, 89-90, 98 of economic opportunity, 49-52, 66, 71, 73-74, 78 of educational opportunity, 67, 7 0 71, 73, 84-85, 8 7 - 8 8 , 9 0 - 9 7 , 102-3 in employment, 73, 9 8 - 9 9 , 1 0 5 - 7 evolution of concept of, 28-30, 38, 44, 75 government's role in achieving, 9 9 100, 104-5, 115-16 before the law, 4 8 - 5 0 and liberty, 30-31, 37, 4 3 - 4 6 , 64, 69, 77, 84 minimum standards for, 69, 71-72, 77-80, 99-100 of opportunity, 36, 46, 51, 63, 6 6 67, 73, 75-78, 100, 104 of political power, 47-48, 6 1 - 6 2 of result (or position), 30, 36, 44-46, 53, 62-63, 67, 74, 76-77, 84, 92, 100, 104, 115, 310 between sexes, 48 Ervin, Sam, 184, 220, 256, 388 European Economic Community, 294, 3 9 4 - 9 5 , 405 executive agreements. See concurrent resolution; Congress; executivelegislative relationship; President; treaties executive-legislative relationship, 209 and Case Act, 378, 384-85 and congressional-executive agreements, 343-44, 380-82, 386-87, 390-91, 409, 431 (see also Congress, and executive agreements, use of joint resolution by; President, and executive agreements; treaties) and consultation, 216-17, 224-29, 252-55, 267, 410-11, 433-34, 4 3 9 40

Index

and declaration of war authority, 36-61, 3 6 4 - 6 5 , 368, 4 3 5 - 3 6

(see

also W a r Powers Resolution) effect on of political parties, 235, 255-56,

320

decision-making in, 283-85 and distribution of functions, 2 7 6 83, 289

and federal grant policy, 275, 290,

338

of split-party control, 232, 274, 345-46,

and citizen participation, 315-17,

410-11

and executive privilege and secrecy, 197-200, 256, 389-91, 393, 4 2 2 - 2 6 ,

429, 435, 437 (see also President, and executive privilege, independent powers of, and secrecy) and Federal Election Commission, 241-42, 250, 256, 391 ( s e e also Buckley v. Valeo) in foreign policy-making, 341, 3 4 5 and impoundment of funds by and legislative delegation of authority to executive, 257-61, 264, 305, 381 (see also Congress, and oversight of independent agencies) and legislative-executive council, 254-55

and nuclear policy matters, 360-61, 364-68, 3 8 5 - 8 6 (see also President, and executive agreements; W a r Powers Resolution) and subconstitutional revision in foreign policy structures, 4 3 4 - 4 0 358-59,

378-94

310

and revenue sharing, 167, 169-70, 175, 275, 277, 2 7 9 - 8 1 , 289, 315,

320 (see also federalism, and "new federalism") as Revolutionary value, 57, 61 and state governments, 168-70, 172, 174, 180-82, 275-76, 281, 3 0 1 - 2

and Supreme Court, 166-67 and use of subsidies and taxes, 292-96

and W a r on Poverty, 52, 168 and welfare costs, 176-82. See also New York City financial crisis 209 The Federalist, Food and Agriculture Organization, 388

and trade negotiations, 343-45, 353, 356, 380, 3 8 2 - 8 3 , 388, 406.

See

also Congress; President; separation of powers; treaties; W a r Powers Resolution executive privilege. See executivelegislative relationship;

91, 2 9 3 - 9 4 , 302-3, 315

438-39

tension in, 3 3 8 - 3 9 , 3 4 5 - 4 8 ,

278, 280-81, 285, 316

and "new federalism," 167-68, 1 7 0 71, 188 (see also federalism, and revenue sharing) and population redistribution, 2 9 0 and regional problems, 281, 283, 286,

46, 3 4 8 , 357, 429, 4 3 3 - 3 4 executive, 2 5 9 - 6 0 , 436,

303, 315

and foreign affairs, 339-40, 3 9 7 - 9 9 in Great Britain, 1 6 7 - 6 8 and interstate compacts, 286-88 at local level, 168-69, 176-77, 275,

President

E v a n s , D a n i e l J., 3 1 9 , 3 2 6 - 2 7

Ford, Gerald R., 193, 217, 226, 3 5 9 - 6 0 foreign relations and allocation of authority, 341, 347, 427

and citizen participation, 314, 340, 351, 3 9 7 - 9 9 , 4 1 8 - 2 1 , 425

and congressional involvement, 378-94 and courts, 4 1 2 - 1 3 ,

Federation of American Scientists, 365 Federal Election Commission, 241-42, 250, 256, 391. See also Buckley v. Valeo

427-29

effect of political party system on conduct of, 3 4 5 - 4 6 and federalism, 3 3 9 - 4 0 ,

397-99

interface of, with domestic affairs, 345-46, 349, 433

Federal Hospital Council, 300 Federal Paperwork Commission, 303 Federal Register, 314, 317 Federal Reserve Bank, 304 Federal Reserve Board, 306 Federal-state relationship. See federalism

involvement of states and cities in,

federalism, 166-82, 232,

secrecy in, 354, 3 9 2 - 9 3 tension between executive and

and capitalism, 171-73

Index

274-78

339-40,

397-99

and media, 340, 421 popular consensus in matters of, 3 4 7 - 4 8 , 356-59, 362, 392, 435

popular sovereignty aspect of, 340, 397-99,

418-21

467

foreign r e l a t i o n s — c o n t . legislative branches over, 3 3 8 - 3 9 , 345-48, 358-59, 378-94 and U.S. advisers in Greece, 3 6 1 - 6 2 and U.S. troops in Korea, 3 6 1 - 6 2 use of force in, 3 6 2 - 6 4 , 3 6 7 - 7 6 . See also concurrent resolution; executive-legislative relationship ; military establishment; separation of powers; treaties; W a r Powers Resolution Frankfurter, Felix, 145, 160, 396 free enterprise system and capital formation, 298, 3 0 7 - 9 , 312-13 and governmental intervention, 268, 271, 296 Freedom of Information Act, 4 2 6 - 2 7 Freund study group on the caseload of the Supreme Court, 159 Fulbright, J. W . , 229, 274, 305, 3 6 6 - 6 7 , 429-30 Arrogance of Power, 366 Full Employment and Balanced Growth Act of 1975, 2 6 4 - 6 5 , 3 0 5 - 6 Gardner, John W . , 320 General Agreement on Tariffs and T r a d e ( G A T T ) , 3 8 2 - 8 3 , 4 0 6 - 7 , 416, 432. See also executive-legislative relationship, and trade negotiations Geneva Conventions, 369, 376 G e t t y s b u r g Address, 113 Goodwin, Richard, 174 government centralization of, 277, 2 7 9 - 8 0 , 285, 300 distribution of functions in, 2 7 6 - 8 3 , 289, 298 expertise in, 1 3 7 - 4 0 at local level, 1 6 8 - 6 9 , 1 7 6 - 7 7 , 275, 278, 2 8 0 - 8 1 , 285, 316 modernization of, 1 3 9 - 4 0 and organized crime, 144 planning by, 3 0 9 - 1 2 public confidence in, 232, 249, 3 5 6 57 public involvement in, 141, 3 1 3 - 2 3 regionalism in, 281, 283, 286, 3 0 2 - 3 , 315 at state level, 2 7 5 - 7 6 , 281, 3 0 1 - 2 , and taxation, 277, 287 Gray, Gordon, 190 Gruening, Ernest, 367 The Guns of August, 385 Haig, Alexander M . , Jr., 184

468

Hamilton, Alexander, 64, 282 on citizen participation in government, 340 on Congress and the executive, 135, 226 on national government, 209 on Supreme Court, 128 Harlan, John M a r s h a l l , 1 6 6 - 6 7 , 404, 412 Harris, Sydney J., 249 Henkin, Louis, 339 Henry, Patrick, 64 Hickenlooper, Bourke B., 413, 438 Hofstadter, Richard, An ti-Intellectualism in American Life, 137 Holmes, Oliver Wendell, 37, 113 in Missouri v. Holland, 395 Holtzman, Elizabeth, 154 Hopkins, Harry, 184 Hosmer, Craig, 424 House of Representatives and electoral college, 138, 141, 459 and executive privilege, 423 and foreign policy conduct, 344, 394, 431 ( s e e also Congress, use of joint resolution b y ; executivelegislative relationship, and congressional-executive agreements) and Judiciary Committee's impeachment hearings, 2 0 2 - 3 , 256, 274 proposed change in terms of, 135, 2 2 1 - 2 2 , 255, 3 2 9 - 3 0 , 345, 436 reduction in size of, 134, 2 2 0 - 2 1 . See also Congress Hughes, Charles Evans, 147, 163 Hull, Cordell, 389, 4 3 0 Humphrey, Hubert H., 234 Humphrey-Hawkins bill. See Full Employment and Balanced Growth Act of 1975 independence. See

Revolutionary

values, liberty independent agencies and Congress, 2 9 9 - 3 0 0 , 304, 3 0 6 - 7 effect of, on policy-making, 2 9 8 300, 3 0 3 - 7 , 3 1 2 - 1 3 presidential control of, 2 9 9 - 3 0 0 , 3 0 6 - 7 , 313 role of, 3 1 2 - 1 4 . See also bureaucracy; Congress; public policy-making individual rights. See constitutional rights Industrial Revolution, 173 interdependence, 342, 346 and regional governments, 339, 3 9 9

Index

under separation of powers system, 338 interest groups, 232 issue politics, 318, 321 lobbying, 321 political parties, 3 2 4 - 2 7 public interest groups, 3 1 7 - 2 1 , 3 2 3 24, 421 special interest groups, 132, 135, 144 International Development Association, 343, 345, 356 International Labour Organization (ILO), 397, 403 international law and constitutional law, 406 and international sanctions, 3 7 0 - 7 1 , 373-75 and international trade law, 416 and international tribunals, 3 9 4 - 9 6 , 435, 439 and Nuremberg principles, 363, 369, 371, 3 7 6 - 7 7 and supranational organization, 339, 399 and use of (nuclear) force, 3 6 2 - 6 4 , 3 6 7 - 7 7 . See also treaties International Monetary Fund, 3 5 2 - 5 4 , 388 Interstate Commerce Commission, 312-13

Javits, Jacob K., 365 Jefferson, T h o m a s , 3 9 1 - 9 2 on citizen participation in government, 340 o n equality, 29 on limited government, 51, 68 on natural talent, 33, 6 2 - 6 3 on pursuit of happiness, 4 0 - 4 1 on slavery, 31 Johnson, Lyndon B., 185, 187, 2 2 5 - 2 6 , 329 a n d civil rights legislation, 207 and executive privilege, 353 and four-year House terms, 255, 329 and National Security Council, 185, 189 and presidential succession, 459 a n d Tonkin G u l f Resolution, 367 and W h i t e House staff, 187 Justice Department and selection of Supreme Court justices, 1 6 4 - 6 5 and societal problems, 145 judicial branch. See courts; Supreme Court

Index

Kefauver, Estes, 234 Kellogg-Briand pact (Pact of Paris), 369-72, 376-77 Kennedy, Edward M., 4 0 6 - 7 Kestnbaum Commission on Intergovernmental Relations, 279 Key, V. O., 235 Khrushchev, Nikita, 3 5 3 - 5 4 Kissinger, Henry A „ 187, 371, 380, 390 Nuclear Weapons and Foreign Policy, 371 Kleindienst, Richard G., 197 Korea, 384 La Follette, Robert M., Sr., 2 3 3 - 3 4 , 236, 239, 243, 246 Law of the Sea Convention, 399, 418 League of W o m e n Voters, 315, 3 2 1 22, 3 2 4 - 2 5 legislative-executive agreements. See executive-legislative relationship, and congressional-executive agreements legislative-executive relationship. See executive-legislative relationship Legislative Reorganization Act, 208, 2 1 9 - 2 0 , 379 legislative veto of independent agency decisions, 2 1 9 - 2 0 , 232, 305 constitutionality of, 260. See also concurrent resolution Lippmann, W a l t e r , 141 Locke, John, 209 Louisiana Purchase, 3 9 1 - 9 2 Lusky, Louis, By What Right?, 146 Madison, James, 282, 3 9 1 - 9 2 on Bill of Rights, 6 4 - 6 5 on Constitution, 339 on judicial salaries, 1 5 5 - 5 6 on public trust, 201 on separation of powers, 209 Mansfield, Harvey, 3 3 3 - 3 4 Mansfield, M i k e , 2 2 5 - 2 6 Mariana Islands, 2 1 0 - 1 1 Marshall, John on Constitution, 39, 4 3 on executive powers, 154 Marshall, Thurgood, 128 Mason, George, 33 on Bill of Rights. 65 M c C a r t h y , Eugene J., 234, 247 M c C a r t h y , Joseph R „ 185 media changing role of, 232

469

media—cont. effect of, on political parties, 237, 242 and foreign affairs, 340, 421 Metcalf, Lee, 299 military establishment civilian control of, 364, 366 and Congress, 339, 359-60, 362, 366-67 and disarmament policy, 361-62 and executive branch, 339, 359, 39394 and foreign policy, 342 and military-industrial complex, 361, 366-67 and military spending, 342, 359, 362 and nuclear weapons, 360-61, 3 6 4 69, 371, 385-86 ( s e e also executive-legislative relationship, and nuclear policy matters) Mill, John Stuart, 9 2 - 9 3 Miller, Arthur Selwyn, 183, 197-98, 201-2, 305 Minton, Sherman, 163 Mondale, Walter F., 237 Monroe, James, 391-92 Montesquieu, Charles, 338 The Spirit of the Laws, 209 Moore, John, 372 Morgan-Zablocki proposal. See concurrent resolution Morganthau, Henry, 182 Morse, Wayne, 367 Mosher, Frederick G., 202 Moynihan, Daniel P., 348 Maximum Feasible Misunderstanding, 212 Murphy Commission report on foreign policy conduct, 339, 346, 399 Myrdal, Gunnar, 307 National Academy of Engineering, 223 National Research Council, 223 national security. See bureaucracy; Congress; President; Supreme Court National Security Agency, 153 National Security Council, 185-86, 189-90, 341 National Women's Political Caucus, 322 natural law. See natural rights natural rights, 31-32, 46, 54 Neustadt, Richard E„ 194 New York City financial crisis, 1 7 1 82, 276, 288-93, 323. See also federalism; urban areas

470

New York Times, 455 Nicolson, Harold, 425 Nixon, Richard M. and Cambodia, 154 as congressman, 350 and executive privilege, 198, 256 and Housing and New Development Act of 1970, 266 and investment tax credit, 296 and judicial salaries, 155-56 last days in office of, 184, 189, 272, 274, 410-11 and "new federalism," 167-68, 17071, 188 and presidential papers, 260-61 and revenue sharing, 279 and secrecy, 352-54 and Thieu-Nixon correspondence, 384-85 and U.S. v. Nixon, 145-46, 184, 256, 350 use of presidential power by, 222 and veto of War Powers Act, 252 as Vice President, 333-34 and White House staff, 190-91 Non-proliferation Treaty, 355, 377 nuclear weapons. See executivelegislative relationship; foreign relations; international law; military establishment Office of Management and Budget, 171, 190, 192 Panama Canal (treaty), 358, 371, 410, 417-18 parliamentary (British) system, 193— 94, 196, 205, 233, 237, 255, 262, 343, 348, 437 peace, as new value, 35, 107-9, 112 Pearson, James B., 296 Pentagon Papers, 351-52, 426-27 Plato, Republic, 31-32 political parties (party system) and campaign financing, 232, 236, 241-42, 250, 327 and Congress, 252, 267 and Constitution, 254-55, 282-83 effect of on executive-legislative relationship, 235, 255-56, 338 on separation of powers, 254-55, 282-83 effect on of foreign policy and social issues, 247 of independent voting, 240 of public interest groups, 324-27

Index

function of, 251-53, 338 and party discipline and organization, 219-20, 236-41, 243-49, 25152, 254, 278 (see also Congress) and President, 244, 251, 255 and presidential primaries, 232-39 and split-party control, 232, 274, 345-46, 410-11 Pollale, Louis H., 406-7 Pound, Roscoe, 145 Powell, Thomas Reed, 457-58 presidency, 182-204 under Dwight D. Eisenhower, 189 and executive privilege, 184-88, 190, 195-97 under Lyndon B. Johnson, 189-90 and national security, 153-55, 18487, 189, 195, 197 under Richard M. Nixon, 190-91, 193 notion of, 191-94, 196 and political consensus, 142 power of, 183-84, 187-88, 194-96, 254 and presidential assistants, 183-85, 189-91, 196. See also President President accountabil ity of, 188, 193 and Angola, 200-201 and bureaucracy, 187-88, 194, 197, 254, 268, 273, 296-98 and Cabinet, 192 as commander-in-chief, 154, 339, 360-61, 363-66, 386, 435 (see also executive-legislative relationship, and declaration of war authority; War Powers Resolution) and Constitution, 186, 191, 460 and electoral college, 138-39, 459 and energy policy, 143 and executive agreements, 341, 344, 354-55, 378-85, 390-91, 417, 4 2 7 28, 431-32 ( s e e also executivelegislative relationship; President, independent powers of) and executive office, 190, 194 and executive privilege, 184-88, 190, 195-99, 256, 350-54, 393, 422-26, 429, 435 ( s e e also executive-legislative relationship ; President, independent powers of, and secrecy) impeachment of, 201-3, 272-73 (see also President, removal of) and impoundment of funds, 259-60, 436, 438-39) (see also executivelegislative relationship)

Index

and independent agencies, 299-300, 306-7, 313 independent powers of, 355, 3 8 0 81, 389-91, 417, 427-28, 436 and military establishment, 339, 359-62, 366, 393-94 and national emergency powers, 138, 389-90 and national security, 153-55, 1 8 4 87, 189, 195, 197 and nuclear policy matters, 360-61, 365, 368 (see also War Powers Resolution) and political parties, 240-41, 244, 251, 255 and presidential primaries, 232-38, 242 proposed change in term of, 135, 221-22

public view of, 127, 245, 267-68 removal of, 184-86, 188, 196, 202-6, 270-73 (see also President, impeachment of) redistribution of responsibilities of, 437-38 and secrecy, 197-201, 350-53, 357, 389-91, 393, 422-26, 429, 435 (see also executive-legislative relationship; President, and executive privilege) and selection of Supreme Court justices, 164-65 and U.S. treaty obligations, 343-44, 402-7, 434 (see also treaties) use of experts in administration of, 137-40 and Vice President, 333-34 and White House staff, 185-87, 1 8 9 91, 193-94, 198. See also executive-legislative relationship ; foreign relations; presidency; State Department Presidential Papers Act, 260 presidential primaries and concept of regional primary, 236-39, 241-42, 244-45, 253 effect of on campaign financing, 241-42, 250 on political party system, 232-39 influence of press on, 242-43 and party discipline, 236-40 Progressive era, 167, 204-5, 233-34, 238, 326 Proxmire, William, 359 public interest groups. See interest groups

471

public policy-making and bureaucracy, 231, 296-98 citizen participation in, 313-24, 327-29 congressional role in, 231, 254, 25766, 268-72, 308-9 and data retrieval, 308-11 effect on of political parties, 236-57, 27880, 324-27 of presidential primaries, 232-36 and federal regional councils, 302-3 and federalism, 274-78, 283-85 and government planning, 308-12 by independent agencies, 298-300, 303-7, 312-13 influence of courts on, 231-32 and interstate compacts, 286-88 and national economic policy, 305-7 and population redistribution, 29096 processes of, 233, 283-85, 296 role of state and local governments, 281-83, 301 and urban areas, 289-90 Rayburn, Sam, 218 regulatory commissions (agencies). See independent agencies religious freedom. See Amendments to the U.S. Constitution, 1st Reuss, Henry S., 203, 206, 273, 289 Revolutionary values domestic tranquility, 112-14 fraternity, absence of, 30, 54 general welfare, 72 individual fulfillment, 123 justice, 28, 30, 35, 54-56, 68 liberty, 27-28, 30, 33-35, 37, 41, 43, 46, 64, 69, 77, 92-93, 109, 111-12, 119, 120 order, 28, 30, 35 privacy, 36, 64, 109,115-16, 121, 124 public virtue, 28, 30, 119-21 pursuit of happiness, 28-31, 35-36, 41. See also equality Ribicoff, Abraham A., 296 Rodino, Peter W., Jr., 274 Roosevelt, Franklin D., 183, 189, 192, 198, 388-89, 430 Root, Elihu, 366, 373 Rostow, Eugene V., 407—8 Russell, Richard B., 226-27 St. Lawrence Seaway, 378, 388, 41117, 430-31 S.A.L.T. negotiations. See disarmament

472

Scalia, Antonin, 379 Schlesinger, Arthur M., Jr., 183, 209, 229 Schlesinger, James R., 184, 189 school desegregation. See civil rights; Brown v. Board of Education Securities and Exchange Commission, 139 Senate committees of, 432 and election of senators, 208 and executive privilege, 423 and financial disclosure, 321-22 Foreign Relations Committee of, 360-66, 430-31, 417 party discipline in, 219-20 proposed change in terms of, 135, 221-22, 345 role of, in selection of federal judges, 161, 164 treaty power of, 340-41, 343-44, 346-67, 380-81, 386, 388-90, 394, 400, 409-15, 429, 431-32, 435 (see also treaties) and Vietnam War, 225. See also Congress seniority system. See Congress, committee system in separation of powers, 232-334 passim, 337-418 passim, 427-40 passim as constitutional renovation, 60-61 and executive-legislative relationship, 232, 252-55, 254-57, 259, 267, 302-3, 391-92 and foreign policy conduct, 338-39, 341, 343, 346, 352, 357-59, 382-83 (see also foreign relations) and independent agencies, 304 and judicial review, 257-58, 261-62 and political party discipline, 207, 244, 252, 254-55 (see also political parties) and Revolutionary values, 54, 60-61 and secrecy, 389-91, 393 (see also executive-legislative relationship) versus parliamentary government, 205 Sevareid, Eric, 291 Shenker, Israel, 455 Sikes, Robert L. F., 318 Simon, William E., 171 slavery and Congress, 61 and Declaration of Independence, 31, 34, 75 and 15th Amendment, 50 Smith, Howard K., 211

Index

special interest groups. See groups

interest

Stanford Research Institute, 249 State Department, 3 7 8 - 7 9 , 389, 414, 4 1 6 - 2 1 , 4 2 3 - 2 5 , 427 state governments, 3 3 - 3 4 , 38, 40, 61 and federalism, 1 6 8 - 7 0 , 172, 174, 1 8 0 - 8 2 , 2 7 5 - 7 6 , 281, 3 0 1 - 2 ( s e e also public policy-making) ratification of a m e n d m e n t s by, 40 Stevenson, Adlai E., 234 Supreme Court appointments to, 1 4 7 - 5 0 , 1 5 5 - 5 6 , 160-64 and Buckley v. Valeo, 256-57 and case or controversy rule, 154 communication by, 1 4 5 - 4 6 constitutional interpretation by, 4 2 43, 4 5 7 - 5 8 and criminal procedures, 57 and death penalty, 58 on federalism, 1 6 6 - 6 7 geographic distribution of justices of, 1 4 9 - 5 0 , 152 and individual rights, 61, 104 and judicial review, 2 5 7 - 5 8 , 2 6 1 - 6 2 and lower court m a n a g e m e n t , 1 5 2 53 and national security matters, 1 5 3 55 and "political q u e s t i o n s , " 153, 363, 4 0 8 - 9 , 412, 415, 428 public view of, 245, 2 6 7 - 6 8 self-regulation of, 1 6 5 - 6 6 and social change, 5 0 - 5 1 , 58, 62 and treaties and international law, 4 0 2 - 6 , 408, 4 1 2 - 1 3 , 439 under Chief Justice W a r r e n , 50, 61 T a f t , William Howard, 147 Talmadge, Herman E., 305 Tennessee Valley Authority, 287, 295 Test Ban Treaty, 355, 365, 407 T h o m s o n , Charles, 29 Thucydides, on happiness, 41 Tonkin G u l f Resolution, 201, 305, 3 5 9 - 6 0 , 367 treaties, 344 on disarmament, 3 5 5 - 5 6 , 360 and executive agreements, 3 8 0 - 8 3 federal-state clause in, 397 implementing legislation for, 340, 343-44, 416-18 internal effect of, 394, 4 0 2 - 7 , 4 1 2 14, 437 judicial consideration of, 4 0 2 - 4 , 412-13, 427-29, 435-36

Index

negotiations of, 3 4 6 - 4 7 , 3 5 5 - 5 8 , 3 8 1 - 8 4 , 389 and secret executive agreements, 384-85 self-executing, 340, 4 1 1 - 1 2 , 430 and Senate treaty power, 3 4 0 - 4 1 , 344, 3 4 6 - 4 7 , 3 8 0 - 8 1 , 386, 3 8 8 - 9 0 , 394, 400, 409, 415 and treaty performance agency, 434-35 and U.S. treaty performance, 340, 402-4 violations of, 4 0 4 - 8 , 434. See also concurrent resolution; Congress; executive-legislative relationship; international law; President Treaty of Rome. See European Economic C o m m u n i t y T r u m a n , Harry, 163, 185, 204, 214 and aid to G r e e c e , 361 and cooperation with Congress, 229, 346 and impoundment issue, 2 5 9 - 6 0 , 436, 438 Tugwell, Rexford G. The Emerging Constitution, 399 on presidential recall, 184

166-67,

United Nations Charter, 363, 3 6 8 - 7 7 , 3 9 4 - 9 5 , 430 United S t a t e s - C a n a d a International Joint Commission, 3 9 7 - 9 8 United States Conference of M a y o r s , 144. See also urban areas

interest groups

local political participation in, 1 7 6 77 and New York City financial crisis, 171-82, 288-90 problems of, 1 4 3 - 4 4 , 1 7 5 - 8 2 , 2 8 8 - 9 0 public service sector in, 1 2 8 - 2 9 street crime in, 1 2 9 - 3 1 and welfare costs, 1 7 6 - 8 2 , 2 9 0 Urban Coalition, 342, 362 Van Buren, M a r t i n , 245 Vance, Cyrus R., 223 Vandenberg, Arthur H., 141, 346, 430 Versailles treaty, 4 1 4 - 1 5 Vice President, 3 3 3 - 3 4 Vienna Convention on Law o f Treaties, 378, 383 Vietnam W a r , 347, 354, 356, 359, 3 6 1 62, 380, 384, 3 9 0 - 9 1 Vinson, Fred M . , 163 Virginia Declaration of Rights, 34

473

Wallace, George C , 239, 247 War Powers Resolution, 138, 224-25, 232, 252, 305, 339, 360, 363-66, 374, 406, 436 Warren court. See Supreme Court Warren, Earl, 147, 152 in Brown v. Board of Education, 145 Washington, George, 121 Washington Metropolitan Area Transit Authority, 287-88 Weber, Max, 37

474

Wechsler, Herbert, on neutral principles of constitutional law, 146 Weinberger, Caspar W., 171 Wildavsky, Aaron, 154, 212 Wilson, Harold, 203-4 Wilson, Woodrow, 137, 237, 430 World Bank (IBRD), 388 Yarmolinsky, Adam, 342 Zablocki, Clement J., 229

Index

CASE INDEX

Ableman v. Booth, 62 U.S. 506 (1858), 278 Alberts v. California, 354 U.S. 476 (1957), 1 6 6 - 6 7 Amalgamated Meat Cutters v. Connally, 337 F.Supp. 737 (D.C. D.C. 1971), 259 Baker

v. Carr,

369 U.S. 186 (1962),

406 Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964), 4 0 3 - 4 Barron v. Baltimore, 7 Pet. 243 (1833), 167 Brown v. Board of Education, 347 U.S. 483 (1954) and 349 U.S. 294 (1955), 39, 73, 80, 104, 145, 1 6 0 - 6 1 , 214 Brown v. Mississippi, 297 U.S. 278 (1936), 58 Buckley v. Valeo, 424 U.S. 1 (1976), 250, 2 5 6 - 5 7 , 3 2 1 - 2 2 , 3 3 8 - 3 9 , 341, 391, 411, 433, 439 Commonwealth of Pennsylvania v. Lynn, 501 F.2nd 848 (D.C. Cir. 1974), 259 Cook v. United States, 288 U.S. 102 (1933), 402, 404

Edwards v. California, 314 U.S. 160 (1941), 290 Engel v. Vitale, 370 U.S. 421 (1962), 145 Environmental Protection Agency v. Mink, 410 U.S. 73 (1973), 426 Ethyl Corporation v. Environmental Protection Agency, 541 F.2nd 1 (D.C. Cir. 1976), 2 5 7 - 5 8 , 264 v. Bowman

Transportation

Co.,

Inc., 424 U.S. 747 (1976), 45, 52, 5 4 56, 97 Furman v. Georgia, (1972), 38 Gideon

408 U.S. 238

v. IVainwright,

lurney

v. MacCracken,

294 U.S. 125

(1935), 423 Kennedy

v. Sampson,

511 F.2nd 430

(D.C. Cir. 1974), 4 0 6 - 7 , 4 2 8 - 2 9 Keyes v. School District Number 1, Denver, Col., 413 U.S. 189 (1973), 84 Lochner

v. New York,

198 U.S. 45

(1905), 112 Marbury

v. Madison,

1 Cranch 137

(1803), 262 McLaurin v. Oklahoma State Regents, 339 U.S. 637 (1950), 58 Milligan, Ex parte, 4 Wall 2 (1866), 389 Missouri v. Holland, 2 5 2 U.S. 416 (1920), 394, 397 Nixon v. Sirica, 487 F.2nd 700 (D.C. Cir. 1973), 2 5 5 - 5 6

De Funis v. Odegaard, 416 U.S. 312 (1974), 93 Dred Scott v. Sandford, 19 How. 393 (1857), 61, 65 Dunhill of London, Inc. v. Republic of Cuba, 425 U.S. 682 (1976), 408

Franks

Holtzman v. Schlesinger, 484 F.2nd 1307 (2nd Cir. 1973) and 414 U.S. 1304 (1973), 154, 407

372 U.S. 335

(1963), 4 8 - 4 9 Griswold v. Connecticut, 381 U.S. 479 (1965), 117 Green, Charles C. v. County School Boqrd of New Kent County, 391 U.S. 430 (1968), 91

Panama Refining Co. v. Ryan, 293 U.S. 388 (1935), 257 Prize Cases, 2 Black 635 (1863), 394 Quinlan, 117

Matter

Reid v. Covert, 396

o f , 70 N.J. 10 (1976),

354 U.S. 1 (1957), 394,

Rodway v. U.S. Department of Agriculture, 514 F.2nd 809 (D.C. Cir. 1975), 258 Roth v. United States, 354 U.S. 476 (1957), 1 6 6 - 6 7 Schechter States, 278

Poultry Corp. v. United 295 U.S. 495 (1935), 257, 259,

School District of Abington Township (Pa.) v. Schempp, 374 U.S. 203 (1963), 145 Senate Select Committee on Presidential Campaign Activities v. Nixon, 498 F.2nd 725 (D.C. Cir. 1974), 256, 423-25 Shapiro v. Thompson, 394 U.S. 618 (1968), 290 Sterling v. Constantin, 287 U.S. 378 (1932), 288 Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971), 84

Train v. City of New York, 35 (1975), 259

420 U.S.

United States v. City of Chicago, 385 F.Supp. 543 (N.D. 111. 1974), 86 United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936), 154, 365, 427 United States v. Nixon, 418 U.S. 683 (1974), 145-46, 184, 256, 350, 4 2 3 24

476

United States v. Pink, 315 U.S. 203 (1942), 427-28 Wilson v. Girard, 380, 395, 436

354 U.S. 524 (1957),

Y i c k Wo v. Hopkins, 118 U.S. 356 (1886), 49 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), 138, 148-49, 155

Index

fiiCOGN^EOB> ntwOt-UTlOt BCCNTtWMl.

Historical prints courtesy of the Historical Society of Pennsylvania Photography by Harvey Michael Newman Designed by Robert M . Luebbers