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Why We Need A New Constitution: Part 3 of 21

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As we can see from the following excerpt, little has changed in the 17 years this was written. Take the Superfund ecample discussed below.

In 1991, 1236 sites were on the National Priority List. And, at the end of 2008, 17 years later there were 1255 sites. Only 332 sites were delisted, with others taking their place. In short, little progress.

And look at the quote immediately below, written in 1986. Doesn't it seem like it was written today?

Barry Krusch
June 19, 2009

Government deficits, the spiraling imbalance of trade, inconsistencies in foreign policy, illegal immigration, unemployment, the decay of our cities, the abuse of the environment, the staggering cost of elections, and the piracy of special interest groups - these problems and a host of others have led thoughtful citizens to question whether our political system is capable of meeting the challenge of modern government.

- Committee on the Constitutional System[1]

We know what the outcomes of a successful Constitution are, since the Preamble to our Constitution states that it was ordained and established "in order to" effect six main goals: "form a more perfect Union," "establish Justice," "insure domestic Tranquility," "provide for the common Defence," "promote the general Welfare," and "secure the Blessings of Liberty to ourselves and our Posterity." Therefore, at least some of the indicators of Governmental success or failure are the extent to which the Objectives outlined in the Preamble have been achieved.

This measuring rod established in the Preamble is not flattering to our Constitution: even a cursory analysis of whether or not these goals have been met reveals serious inadequacies. For example, one of the primary goals of the Constitution is to "establish Justice." Justice, of course, must by definition mean justice for all. But as the Brookings Institution Task Force found in their evaluation of the justice system in the area of civil litigation, this goal has not been achieved. In America, "justice" is meted out to those with the most spare time on their hands and the deepest pockets:

In many courts, litigants must wait for years to resolve their disputes. In the meantime, their attorneys pursue ever more expensive means of discovery to prepare for trial, often having to duplicate their preparation when trial dates are postponed. Among the bulk of cases that are never tried but settled, many are overprepared and overdiscovered. In short, civil litigation costs too much and takes too long.

The high costs of litigation burden everyone. Our businesses spend too much on legal expenses at a time when they are confronted with increasingly intense international competition. They pass those costs on to consumers, who then pay unnecessarily high prices for the products and services they buy. People who take their cases to court or who must defend themselves against legal actions often face staggering bills and years of delay. [2]

Prophetically, Luther Martin, one of the Framers of our Constitution, indicated that this would be a future concern in an address delivered to the Maryland Legislature on November 29, 1787. In that address, Martin referred to an "almost . . . certain prospect of ruin . . . where the middle and common class of citizens are interested . . .", and stated that "the citizen . . . even if ultimately prosperous, must be attended with a loss of time, a neglect of business, and an expense which will be greater than the original grievance, and to which men in moderate circumstances would be utterly unequal."[3]

The area of civil litigation, of course, is not the only area where injustice is done. The field of criminal "justice" is a world where the innocent are imprisoned, where people who cannot afford bail are incarcerated for months, and a world where disproportionate and disproportionately applied sentences abound. As Anne Strick reported in her lengthy and extraordinarily detailed book Injustice for All,

Defendants from the world of organized crime are let off five times oftener than are ordinary persons. Black criminals tend to receive prison terms averaging nearly one third longer than whites. Poor defendants serve fully twice as long as those with enough money to hire their own lawyers. Suspects brought into New York's overflowing courts receive lighter penalties than those unlucky enough to be convicted of the same crime upstate. [4]

But the failure to "establish Justice" is only one benchmark. A failure to find solutions for the important social dilemmas of the day - a failure to promote "the general Welfare" - is another key indicator of structural inadequacy. Consider Hamilton's observation regarding the "inefficacy" of Government. If even the passage of simple laws like the Brady Bill (a measure requiring a seven-day waiting period for the purchase of handguns) presented grave difficulties (as one Representative said, "[i]t has been frustrating taking a simple commonsense measure and having to invest such enormous energy and resources in getting it passed . . . We've had to raise the visibility of this proposal to an unwarranted level in relation to what it can do." [5] ), it should be no surprise that the more problematic issues of the day pose even greater difficulties. [6]

A brief survey of contemporary journalism reveals real shortcomings in the enactment of the "general Welfare" Clause. Consider, for example, the environment, and the solution our Government has promulgated to cope with another fine mess we've gotten ourselves into, toxic waste dumps:

The Environmental Protection Agency's 'Superfund,' established a decade ago as the ultimate solution to the nation's toxic waste crisis, is mired in billions of dollars in administrative costs and attorney's fees that threaten to make the program the most expensive public policy fiasco in U.S. history.

In dozens of interviews, environmental experts, former federal officials and industrial leaders across the country told of litigation costs so staggering that the final Superfund bill could be double that of the savings and loan debacle.

Initially, the Superfund's legislative sponsors expected the cleanup to be accomplished in a single five-year program costing less than $5 billion. Today, analysts predict that the program could balloon to $1 trillion in industry and federal spending and take half a century to complete.

At least $200 billion of the total, they say, is likely to be consumed in 'transaction costs' that do not include any spending for actual cleanup. Most of this amount will be for corporate attorneys' fees in thousands of lawsuits. . . .

EPA records show that only 33 toxic waste sites have been fully cleaned and removed from the agency's National Priorities List of the 1,236 most hazardous sites.

'This is a program that hardly ever gets anything right,' said Joel Hirschhorn, an environmental consultant in Washington, D.C., and former chief Superfund researcher at the congressional Office of Technology Assessment. A 1989 study by the office found that overall, '50 to 70 percent of spending in the Superfund program is inefficient.'

Many of those familiar with the program say the Superfund was doomed to failure from its inception because of fundamental flaws in the legislation that created it.

If current projections of Superfund-related expenditures are accurate, analysts say, the cost will be at least $2,000 for every American - reflected in price increases passed along to consumers on countless chemical and petroleum-based products used in every U.S. home - without even covering the removal of hazardous wastes. . . .

Some analysts believe that an immense government bailout - at direct taxpayer expense - will eventually be needed to finish the toxic cleanup and to provide emergency backing for commercial insurance companies facing enormous Superfund-related liability.

'Where is the money? How much has been used? On what?' asked Carmine Iannuzzi, president of Massachusetts-based Camger Chemical Systems, which made the protective coating for the mustard gas suits worn by troops in the Persian Gulf war. 'It seems like a lot of money has simply vanished without accomplishing anything.'. . . .

[A]ccording to chemical industry and environmental group sources, as much as $12 billion has already been consumed in transaction costs - primarily feeding an immense new legal industry that has emerged to negotiate Superfund cases. About $8 billion has been used for clean-up. . . .

According to the study by the Office of Technology Assessment, legal fees and overhead associated with the Superfund could eventually exceed $200 billion, or 44 percent of anticipated total costs. Other sources say the transaction costs, most of which will be borne by private industry, may equal 60 percent of the total.

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Barry Krusch is president of Intelligent Communities, Inc., sponsors of The Intelligent Community Initiative. He is also author of 2 books, The 21st Century Constitution and Would The Real First Amendment Please Stand Up?
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