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Why We Need A New Constitution: Part 12 of 21

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O THE SEPARATION OF POWERS AND
UNDUE ATTENTION TO LOCAL INTERESTS

Delay. Unaccountability. Obliteration of the Principle of Majority Rule. But these are not the only consequences of the Separation of Powers Principle as instituted in the Constitution. In addition, the system as instituted interferes with an essential criterion for a desirable Legislature: that the Legislature take a National, as opposed to a Parochial, view.

One desirable criterion for national legislatures is the ability of both individual members and the institution to take a broad national view of problems and to act in the national interest. . . . A small benefit for the nation as a whole, for example, should not necessarily be implemented if serious damage would accrue to a region of the nation. At the same time, a minor benefit for part of the nation should not be purchased at the cost of severe hardship to the nation as a whole.

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The authoritative allocation of resources often occurs in national legislatures. This is a critical task and when performed poorly can result in waste. In some instances the resources being allocated are scarce. The waste of such resources may inflict harsh costs on a particular segment in a society or on the nation at large. The thoughtful allocation of resources in an efficient manner can make or break the welfare of a nation. [1]

The need to restrain the effects of Parochialism were well-known at the Federal Convention. A susceptibility to parochial interests was, indeed, one of the fatal flaws of the Articles of Confederation, as pointed out by Pennsylvania Delegate James Wilson on June 8:

We are now one nation of brethren. We must bury all local interests & distinctions. . . . No sooner were the State Govts. formed than their jealousy & ambition began to display themselves. Each endeavoured to cut a slice from the common loaf, to add to its own morsel, till at length the confederation became frittered down to the impotent condition in which it now stands. Review the progress of the articles of Confederation thro' Congress & compare the first & last draught of it. To correct its vices is the business of this convention. One of its vices is the want of an effectual controul in the whole over its parts. . . . leave the whole at the mercy of each part, and will not the general interest be continually sacrificed to local interests?[2]

But the structure of Government given to us by the Framers did not achieve their stated goal that Government should promote the general welfare, and not the local welfare. Part of the reason for this is that even though Congress takes action collectively, voting by Congressmen takes place individually, a structural phenomenon leading to Parochialism:

While the national legislature as an entity may receive low popular ratings, it is possible for individual legislators to receive undeserved high ratings from their states or districts. Many of these legislators are reelected and as incumbents appear to benefit from citizen ignorance. Apparently the electorate perceives that the problems with the national legislature are caused by representatives from districts or states other than their own, and legislators often reinforce this view.

Due to ignorance, citizens may not discern whether or not their representatives are good legislators who can mobilize support for their bills and pass legislation, thereby solving problems and implementing their objectives. Citizens may also have difficulty identifying merely symbolic action wherein legislators express an opinion but suggest no policy changes, or make statements of policy without sponsoring legislation to implement it. . . .

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Members may contribute to voter ignorance and apathy in a variety of ways. Legislators may stress voter access and identification with the constituents more than what is going on in the national legislature. [3]

Our constitutional structure inevitably leads to Parochialism for another reason - the delivery of "pork barrel" projects to local constituents:

Congress is often accused of being parochial, reflecting narrowly based constituent interests rather than assuming a national view. . . .

One measure of parochialism in Congress is the delivery of pork barrel legislation to congressional districts and states. This may consist of special projects, new programs, or public works or buildings which benefit constituents in a particular geographic region and do not benefit other citizens. The conferment of such benefits is a constant feature of congressional policy making. Particularized benefits have two properties: they are usually given out to a specific individual group or geographic constituency and are usually distributed in an ad hoc fashion so that the member of Congress representing the benefited constituency can claim credit for the allocation. Representatives and Senators view pork barrel legislation as crucial to reelection, a perception which diminishes the incentive among current members to abolish or limit its use. . . . [4]

A process which rewards the creation of "pork barrel" legislation must penalize the creation of legislation in the National Interest, and must inevitably effect the quality of legislation:

Given [the] number of legislative hurdles, important legislation is often side-tracked, permanently derailed, or significantly modified by interest groups at any one of the various gates through which proposed statutes must pass. Interest groups have become well aware of the lengthy, sequential, internally specialized, bicameral legislative processes. They often manage to impede or alter bills at veto points along the process. The length of the process is not only ponderous, but in the Washington environment where the interest group legislative 'hunting season' never closes, the long duration of the process increases bill vulnerability to special interest attacks. . . .

For example, in 1965 President Lyndon Johnson suggested a bold solution to the problems of crime and poverty in inner-city slums. As the bill was originally drafted, about a dozen cities would have received large sums of money to be spent under federal supervision in order to promote racial integration and renovate the slums. Passage of this program in Congress became a study in compromise. Compromise, in itself, is not an undesirable value, but it can subvert the original purpose of legislation. Proponents of the 'Demonstration Cities' legislation had to compromise extensively. They had to dismiss the goal of racial integration, loosen federal control over the administration of the program, and make more cities eligible to participate (approximately 150). What began as a noble attempt to renew decaying urban centers ended up as another pork barrel project that ineffectively divided funds among constituencies in Congress. . . . [5]

According to Lawrence Dodd, the Constitution lacks a centralizing force which would ameliorate this nascent Parochialism:

The Constitution provides no function or structure to Congress that would create internal congressional incentives supportive of power centralization, coordination, and institutional integrity. It merely assumes that these will be maintained by the natural operation of political life in a simple, agrarian society. When the latter assumption is no longer valid, when it is no longer true that policy problems will be simple and congressional life will draw only a few legislators committed to long-term congressional careers and power, there is no provision within the constitutional system - no incentive system - that will lead members naturally to sustain mechanisms of institutional centralization. [6]

A Government without a centralizing force is a Government which compromises by passing Bills which benefit local areas, but can only with great difficulty pass Bills in the National Interest.

Thus the problems that have resulted from the political theory of the Framers. In review, we find that the Separation of Powers Principle as implemented in the Constitution has made impossible the fulfillment of the Preamble strictures that Government must "establish Justice" and promote "the general Welfare." These two critical criteria have been violated, and so have four other critical criteria: Efficiency, Accountability, Majority Rule, and National Interest Representation. Instead, we universally find in Government Delay, Unaccountability, Minority Rule, and Parochialism.

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These six criteria violations are serious enough, but there is one final violation - in fact, the last that will confront any constitution: the violation of the Principle of Constitutional Self-Preservation. The Separation of Powers Principle, in seeking to preserve the form of Government by crippling Government, made the formation of a subterranean, unconstitutional Government necessary. As Hardin (1987) wrote, "It is not simply that the Separation of Powers leads to deadlock (or gridlock) and stalemate . . . the Separation of Powers poses a deadly danger to constitutional government itself."[7] A Principle meant to preserve the Constitution has led inexorably to its downfall.

END PART 12: TO BE CONTINUED

FOOTNOTES

[1] The Constitution Under Pressure, p. 180.

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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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