The Power
Of The Unelected Branches Of Government
Presented
to The Raleigh Tavern Philosophical Society
By
Kenneth T.
Hern
January
2003
The Effect
of the Courts and Social Activists
Even before, but especially after, World War II the political landscape began to change. Beginning in the late 1930s and early 1940s an alliance developed between the federal judiciary and socialistic political forces. Faced with the threat of Franklin Roosevelt’s court-packing plan, the Supreme Court found it prudent to abandon its ties with the conservative, often times southern faction, and to take up such issues as civil rights and civil liberties.
Unelected socialists enjoyed
access to both the Congress and the Presidency, but the influence of the South
within the New Deal coalition prevented them from relying on these institutions
to protect the rights of racial minorities and political dissenters. For this reason, they found the federal
judiciary an attractive institutional ally.
During the 1950s and the 1960s, in response to cases brought by these
socialist groups, the courts put an end to legally mandated segregation in southern
school systems, strengthened First Amendment guarantees and expanded the rights
of people accused of crimes.[1]
Socialistic activists have also
played a major role in securing the enactment of environmental, consumer and
occupational health and safety legislation that significantly restricted the
prerogatives of business managers.
These statutes not only imposed limits on the goods business firms could
produce and the ways they could produce them but also required companies to
invest capital in equipment that would promote a cleaner environment and safer
products and working conditions. In
addition, environmental and community activists defeated numerous public works
projects and antinuclear activists largely brought the billion-dollar nuclear
power industry to its knees.[2]
The Mass Media
The media of the nineteenth century and earlier were largely subordinate to political parties. Newspapers depended upon official patronage, legal notices and party subsidies for their financial survival and were controlled by party leaders. At the turn of the century, with the development of commercial advertising, newspapers became financially independent. This made possible the emergence of a nonpartisan press. This is an oxymoronic statement because there is no historical evidence of a “nonpartisan” press. The reporter must, and should, observe with as much detachment as he or she can muster in order to simply report a scene or event with accuracy and clarity. But, the human being will respond to human situations. He will at times take sides, if only in his own mind. It can, of course, be said that it is not necessary for an honest, competent journalist, dedicated to the discovery of the truth to wear the chastity belt of strict neutrality. After all, the truth, whatever it may be, is almost never neutral.
The power of the mass media is now more influential than party organizations in the battle for votes. Democrats and Republicans have learned to use allegations of impropriety to discredit and weaken one another. Public officials have become increasingly vulnerable to such attacks, as party organizations have declined.
In contemporary America, journalists have supplanted party leaders as the public’s most important source of information and opinion concerning elected officials, so that when information, critical of an official dominates media coverage, that official’s public support quickly evaporates. As we will discover, political actors with a narrow base of popular support (e.g., journalists, federal prosecutors, and public-interest groups) can end the political careers of big-city mayors and even presidents, who enjoy a wider popular base.
The Executive Branch of government
was the first to recognize the opportunities afforded by the development of an
independent press. By communicating
directly to the electorate through newspapers and magazines, Theodore Roosevelt
and Woodrow Wilson established political constituencies for themselves
independent of party organizations and strengthened their own power relative to
Congress.
President Franklin Roosevelt used
the radio, most notably in his famous, “fireside chats” to reach out to the
voters throughout the nation and make himself the center of American
politics. FDR was particularly adept at
developing close personal relationships with reporters, and these enabled him
to obtain favorable news coverage despite the fact that in his day a majority
of newspaper owners and publishers were staunch conservatives.[3]
Prior to World War II, was the
time when the Presidents, especially FDR, enjoyed a favorable position with the
press.
The best example of FDR’s
relationship can be illustrated by the 1944 Republican charge that he had used
government property for his personal benefit by sending a U. S. Navy destroyer
to retrieve a pet he had left behind on the Aleutian Islands. FDR ridiculed the Republicans for attacking
“my little dog, Fala”.[4]
At that time, FDR’s links to the
mass constituency were too strong to be threatened by the GOP charges, and
therefore, he was in a position to dismiss them with a derisive quip. Today, most elected officials lack such
support and are much, much more vulnerable to allegations of personal
impropriety.
The Break With The Presidency
The Vietnam War shattered this
close, trusting relationship between the press and the Presidency. During the early stages of U. S. involvement
American Officials in Vietnam, who disapproved of the way the war was being
conducted leaked information critical of administration policy to
reporters. [5]
Publication of this material
infuriated Presidents Kennedy and Johnson.
On one occasion President Kennedy went so far as to ask the New York
Times to reassign its Saigon correspondent, David Halberstam.
Kennedy’s frustration with the press probably began with the Bay
of Pigs fiasco when, less than a month after this debacle, he castigated the
press in general and the New York Times specifically, for what he called
“premature disclosures of security information”.
Halberstam, who would later share
a Pulitzer Prize for his Vietnam reporting, was consistently sending dispatches
at great critical and pessimistic variance from the reports the Administration
was getting from its own people.
Kennedy’s criticism of “premature disclosures” and his efforts to remove
a nettlesome reporter showed the tendency of an Administration to manipulate
information, spin it as it were, in an attempt to turn the press into the
handmaidens of government.
Kennedy, as beloved as he was of
the press in general, could not accomplish this feat and most assuredly those
who would follow failed even more.
The rift between the President,
and government officials in general, began to widen with the press in
1962. It was during the Cuban Missile
Crisis that the then Assistant Secretary of Defense for Public Information,
Arthur Sylvester, stated that government officials had the right to lie to the
public if the nation was in danger of nuclear destruction.
Although many might begrudgingly
grant Sylvester his point, the record demonstrates that government officials,
on both sides of the aisle, feel they have a right to lie whenever they or
their policies can be advanced.
Sylvester gave his dictum broader
and blunter meaning when, at a later date, he told a group of reporters in
Saigon, “Look, if you think any American official is going to tell the truth,
then you are stupid”.[6]
Gone were the days when the
President could brow beat the press. Gone were the days of intimidation such as
those used by President Franklin D. Roosevelt when, at a press conference in
Washington D. C., he presented a German Iron Cross to a bothersome
correspondent for his, “contributions to the Nazi movement”. The press had had it with any government
official and any and all were now fair game.
The
Most Powerful Mass Media
Television is really the first form of mass
communication—that is, communications that reaches nearly everyone within the
same time frame. Television is
considered by the maddening masses of the world, and certainly in America, to
be the “most trusted” media of communication.
The political power of television is awesome. There is almost a desperate need for most Americans to watch
television and know what is going on every day, even every hour. This need is
in total contrast to the view Michael Oakeshott had when he once told a young,
aspiring journalist, "I think the need to know the news every day is a
nervous disorder."
(I believe another concept of his was to, “Keep the
government small so it can do as little damage as possible,” and I know he once
wrote, "The conjunction of dreaming and ruling generates
tyranny.")
The political importance of
television has emerged relatively recently.
In 1952 only 19.8 percent of all U. S. homes had TV sets, compared to
99.8 percent in 1972. In other words
the United States acquired this form of mass communication in just twenty years
and, in my judgment, insufficient attention has been drawn to the tremendous
impact television has had on U. S. society in general and political life in
particular.
As stated above, television is
really the first form of mass communication.
It can reach the poor, the illiterate, the aged, the sick, the children
and any loafer sitting at home on welfare. An argument can be made that the loafer sitting at home on welfare
is probably not watching the news or a political debate but he is being spoon
fed socialist propaganda pertaining to social reforms, an interest in the poor
and the minorities, and a concern for ecology and quality of life. Even more, he is being led to willingly
accept the use of governmental power to “do good”.
If these loafers are watching the
“news” then the probability is high they are not being forced into the
conservative camps. Except for Fox News
and radio talk show hosts such as Rush Limbaugh, media executives and
producers, as well as reporters, writers, and anchorpersons are more
socialistic in their views than other segments of the nation’s leadership. So, interpreters are likely to cite as
causes of unrest or disaster one of the following: disregard for the
environment, corporate profit motives, racial antagonisms, support of
right-wing regimes abroad, excessive military spending, and the like. This left
leaning bias was recently brought forward by Bernard Goldberg in his book,
“Bias: A CBS Insider Exposes
How the Media Distorts the News”.
Very often, as Goldberg pointed
out, the medias’ suggested remedies to the nation’s ills are usually more
governmental regulations, increased governmental spending, and new governmental
programs and reforms.
All of these viewers are
participating in politics by passively watching their television sets,
responding with pride, patriotism, anger or cynicism as the drama of politics
is played out for them between commercials.
Many people do not vote (about half the population) and as Gore Vidal
once wrote, "Half of
the American people have never read a newspaper. Half never voted for a
President. One hopes it is the same half." Whatever the case may be, all viewers are nonetheless treated to
year-long media coverage of presidential elections, from the early party
caucuses and the New Hampshire primary to the November general election
itself.
It is impossible, therefore, not
to know that a presidential election is going to be held and who the Republican
and Democratic and Independent candidates are and even if the viewer does not
vote he has, or believes he has, participated by yelling at the TV set when he
heard something he did not like.
Television coverage of war, in
particular, tends to undermine the arguments of national leaders about the
necessity of sacrifice. This is true
even if the media does not take a conscious political position on a war. But, when negative interpretation of a war
is added to sensational reporting, the result is a strong political statement
against military action. George W.
would be advised to remember this axiom if and when he orders American soldiers
into action in Iraq.
This is not true just of war, it
also applies to race relations, the environment or any other cause celeb, but
modern warfare is clearly the most dramatic effect Television can have on
Government’s actions.
As a case in point, television was
particularly important in bringing about the
U. S. withdrawal from
Vietnam. Political scientist, Austin
Ranney, summarizes television’s impact on an important turning point in that
war. As several chroniclers have told it,
the story is this.
In early 1968, after five years of
steadily increasing American commitment of troops and arms to the war in
Vietnam, President Johnson was still holding fast to the policy that the war
could and must be won.
However, his favorite television
newsman, CBS’s Walter Cronkite, became increasingly skeptical of official
statements from Washington and Saigon that claimed we were winning the
war. So Cronkite decided to go to
Vietnam and see for himself.
When he returned, he broadcast a
special report to the nation, which Lyndon
Johnson watched. Cronkite reported that the war had become a
bloody stalemate and that military victory was not in the cards. He concluded, “It is increasingly clear to
this reporter that the only rational way out .. will be to negotiate, not as
victors, but as an honorable people who lived up to their pledge to defend
democracy, and did the best they could.”[7]
On hearing the Cronkite verdict,
the president turned to his aides and said, “It is all over.” Johnson was a great believer in
public-opinion polls, and he knew that a recent poll had shown that the
American people trusted Walter Cronkite more than any other American to “tell
it the way it is”….So, if Walter Cronkite thought that the war was hopeless,
the American people would think so, too, and the only thing left was to wind it
down. A few weeks after Cronkite’s broadcast, Johnson in a famous broadcast of
his own, announced that he was ending the air and naval bombardment in most of
Vietnam and, I think it was in this same broadcast, that he made his shocking
announcement that he would neither seek nor accept his parties nomination to
serve another term as President.
As the above referenced David
Halberstam wrote, “It is the first time in history a war has been declared over
by an anchorman.”
Campaign Finance Reform
The
Money Just Keeps Pouring into
Television Networks
Television is an
industry that has long had unrivaled clout on Capitol Hill, an industry that
receives billions in corporate welfare, an industry whose gifts to – and
influence over -- Washington politicians dwarf the lavishly scrutinized Chinese
or Indonesian or anyone else’s efforts.
Indeed, while
many industries benefit from the current corrupt system of campaign finance, no
other industry benefits more directly than television networks. And, it's hard to think of an industry that
is a bigger impediment to campaign reform.
It wasn't until
recently, the mid to late 1990’s, that national TV news finally began serious
-- and long overdue -- coverage of campaign finance abuses and the limitless
"soft money" to political party organizations.
But one piece of the story has been almost
totally avoided: the huge soft money contributions served up by the owners of
America's top TV news networks.
In the 1995-96-election
cycle, over $ 3.2 million was donated to national political organizations by
the five TV news networks, their corporate parents, subsidiaries or top
officers. The five heavyweights are Disney (ABC), Time Warner (CNN), News
Corp/Rupert Murdoch (Fox), General Electric (NBC) and Westinghouse (CBS).
The national soft
money was split evenly between Democrats and Republicans, although Rupert
Murdoch tipped the balance rightward with an additional $1 million pre-election
gift to the California GOP. (The five firms gave another $1.2 million in PAC
donations or "hard money" directly to federal candidates.)
Given the size of
the donations, it's hard to believe that network TV journalists failed to
notice them. The truth is, TV producers and correspondents know that probing
the political donations of one's boss is not the surest path to job security or
advancement. A surer path is self-censorship.
What were TV
owners hoping to gain from their hefty donations? Were they paying for the
Telecommunications Act of 1996 that gave them unprecedented power over
America's airwaves and cable TV? The act gave TV moguls assorted prizes: the
right to acquire more stations, relaxed license renewal, deregulation of cable
rates, etc.
Or, were TV
owners paying for the federal giveaway of the digital spectrum? The majority of
Americans who get their news from television may have never heard of the
spectrum giveaway.
Then Senator Bob
Dole labeled it "big corporate welfare." The head of the Federal
Communications Commission called it "the biggest single gift of public
property to any industry in this century."
For those who get
the news from television, here's what was missed. The FCC carried out the will
of Congress by awarding valuable new digital frequencies to the current TV
license holders -- and doing so free of charge. If auctioned, it has been hypothesized that, this digital
spectrum would have reaped an estimated $20 to $70 billion.
With the new
spectrum, instead of just channel 7, a broadcaster may soon be controlling
channels 7a, 7b, 7c, 7d, 7e and 7f. TV broadcasters -- long accustomed to high
rates of return -- stand to gain even bigger profits.
"The rip-off
is on a scale vaster than dreamed of by yesteryear's robber barons," wrote
conservative columnist William Safire who is not generally known as a corporate
critic. He went on to write, "It's
as if each American family is to be taxed $1,000 to enrich the stockholders of
Disney, GE and Westinghouse."
Not surprisingly,
it's a rip-off that never got mentioned on any of the nightly network news
segments that focus on government waste -- like NBC's "Fleecing of
America" or ABC's "It's Your Money."
Americans across
the political spectrum are amazingly united in their complaints that today's TV
broadcasters pollute the airwaves with mind-numbing violence, sensationalism
and sleaze -- yet Congress has quietly bestowed still more broadcasting power
on these profit-hungry companies.
So how to explain
what Congress did?
In a word,
Congress got "nabbed" by the National Association of Broadcasters
(NAB). One of Washington's most powerful and feared lobbies, NAB has an annual
budget of $35 million and members in every Congressional district with unique
power to shape the image of politicians for better or worse.
“No one has more
sway with members of Congress than the local broadcaster," said NAB
President Edward Fritts in 1995. It doesn't hurt that Fritts is a longtime
friend and college roommate of Senator Trent Lott but I cannot remember Fritts
coming to the aid of his old roommate earlier this year.
In
early 1996, when several members of Congress suggested that broadcasters pay
something for the new spectrum they were to receive, NAB launched a $2 million
ad campaign with deceptive TV commercials urging viewers to call Congress to
protest a "TV tax" that would end free TV.
In March 1997,
when President Clinton asked that broadcasters set aside free TV time for
candidates, NAB reacted with the indignation one might expect from the NRA if
the President had proposed banning not only assault weapons,
but hunting
rifles, handguns and toy guns. Fritts huffed that mandatory free airtime was
"blatantly unconstitutional" and unworkable.
NAB has good
reason to lobby forcefully to preserve the money-drenched campaign system. In 1996,
TV received $400 million in political ad revenues from candidates and political
parties. TV owners end up pocketing a major share of the funds raised by
politicians, especially in statewide races.
I do not have the figures for the monies spent on the1998 or 2000 or
2002 campaigns but I will wager all would dwarf the $400 million spent in 1996
by candidates and political parties.
To quote former
Senator Bill Bradley, "Today's Senate campaigns function as collection
agencies for broadcasters. You simply
transfer money from contributors to television stations."
With vast
influence over Congress -- and confidence that its clout will be skirted by
network reporters -- the TV lobby is one of the key obstacles to any real
political reform in our country. It's a mark of television's power that this
obstacle remains so shrouded.
Becoming a Litigious Nation
In 1835 the French statesman Alexis de Tocqueville wrote: “There is hardly a political question in the United States which does not sooner or later turn into a judicial one.” His comment is even more appropriate today. The Supreme Court, rather than the President, Congress or the States, has taken the lead in: Defining the limits of free speech and the free press and defining obscenity, censorship and pornography; and,
1.
Ensuring equality of representation and requiring
legislative districts to be equal in population;
2.
Determining the personal liberties of women and deciding
about abortion;
3.
Eliminating racial segregation and deciding about
affirmative action;
4.
Deciding about life or death and permitting capital
punishment;
5.
Defining the rights of criminal defendants, preventing
unlawful searches, limiting the questioning of suspects, and preventing
physical or mental intimidation
Today the federal courts decide
not only sensitive political issues but also issues that were once handled by
local officials, school boards, teachers, parents, churches, and private
citizens. The United States is becoming
an adversarial society; everyone is suing everyone else about matters large and
small. The trend is toward increased
judicial intervention in every aspect of American life. Beginning in the 1950s, in pursuit of what
its advocates have called a "judicial revolution," the Supreme
Court's radical alteration of established interpretations of rights guaranteed
by the Constitution, with some vastly expanded, others restricted, and still
other rights simply invented, this judicial activism has transformed the Court
into an unelected "super legislature," effectively unbound by any
restraints.
Therefore, if you do not like what
an elected official is doing, regardless of the issue or any moral
interpretation thereof, simply find a judge that is willing to hear
your case and the elected official
is in hot oil and will begin to do the St Vitas dance or the Texas Two Step
until the crisis passes or the judge hands down the verdict you wanted. And, when political struggle takes this
form, voters are given little reason to participate.
An
Equilateral Triangle?
Or
A
Wedge for the Losers?
I contend that even a very popular president, one who has won in a landslide, cannot now overcome what I am going to call “An Equilateral Triangle” or perhaps more aptly, “A Wedge for the Losers”.
To prove this point, let’s return to the 1980 elections. Under Ronald Reagan’s leadership, the Republican Party scored a decisive victory in the 1980 presidential election, won control of the senate, and substantially increased its representation in the House. Once in office, Reagan sought to fashion a legislative program that would implement his campaign promises and solidify his relationship with the various groups that had helped bring him to power.
In the first half of his term, he moved to cut taxes, reduce inflation, slash social programs, increase defense outlays, reduce federal regulatory controls over business, and diminish federal efforts on behalf of blacks and other minorities. In addition, Reagan gave his support, although more in word than in deed, to social and religious conservatives who were determined to ban abortion and return prayer to the public schools.
Almost immediately Reagan’s
legislative efforts encountered a number of obstacles. First, efforts to reduce spending on
domestic social problems were hampered by powerful political constituencies
that effectively defended these programs.
This was especially true in the case of Social Security, precisely the
area where spending cuts might have yielded substantial budgetary savings.
Second, Reagan’s efforts to reduce
regulatory controls over business, especially by placing limits on the federal
agencies charged with environmental protection, encountered stiff resistance from
environmentalists. His opponents
mobilized the “Equilateral Triangle” of congressional investigation, media
disclosure and judicial process.
Those out of power and opposed to
the Reagan initiatives used this “Equilateral Triangle” or “Wedge of the Losers”,
to counter attack and win several decisive battles over a powerful, entrenched
opponent.
By driving this weapon into the
exposed flank of the Republicans the ousted party and its supporters won
several skirmishes. In addition, they
also bludgeoned several Reagan appointees.
Most notable were EPA administrator, Ann Buford Gorsuch and Secretary of
the Interior, James Watt.
This weapon the, “Wedge of the
Losers”, had been in place earlier but it began, I think, to grow during
Reagan’s first term and has grown in size ever since.
The sides of the triangle may not
always be equal but its points will always be sharp.
Even if it were isosceles in form,
it would still be a powerful weapon to wound, even kill an opponent. This triangle, in whatever form, is now cast
in stainless steel and will continue to be used by both parties.
The Blurring of the Lines Between the Original
Three Branches of Government
Or
Just How Powerful is the Judicial
Branch?
The Constitutional system, established by the
Framers, has been largely dismantled, releasing government, especially the
national government, from virtually all restraint. Unconstrained government
inevitably has swept aside civil society, replacing it with political
decision-making and bureaucratic administration unaccountable to the
public.
Trusting neither
the written word of the Constitution nor self-restraint on the part of
officeholders to enforce the necessary limits, the Framers devised a complex
system of checks and balances in which various political actors were placed
deliberately in permanent opposition to one another.
This tension was
intended to ensure that the energies and ambitions of the respective groups
would be directed against one another, thereby protecting civil society from
unwanted interference. The best known of these safeguards the division of the
national government into three competing branches: executive, legislative, and
judicial has proven both effective and durable despite two centuries of change
with the most dramatic changes occurring in past 100 years, but, the rate of
change has become exponential.
How Were the Safeguards Dismantled?
This carefully
constructed system remained largely intact for over 100 years; but beginning in
the early part of the last century, the ability of the states to perform their
constitutional role of limiting the national government has been progressively
reduced to the point that it has been virtually eliminated.
The process was a
lengthy and complex one, but its principal landmarks have been:
The ratification in 1913 of the 16th and 17th Amendments, which removed key restraints on the national
government by giving it unlimited taxing authority and by mandating that
Senators were to be elected by popular vote rather than selected by state
legislatures.
As
a result, Washington secured the resources necessary for an open-ended
expansion of its functions even as the states were removed from the making of
national policy and eliminated as the principal bulwark against expansion by
the national government.
The national
emergencies of the Depression, World War II, and the Cold War, legitimized political forces arguing for greater
power at the national level to deal with domestic and international problems.
The powers and functions assumed by Washington in times of emergency have
remained long after their original justification has passed. In fact, many of
the emergency powers of the 1930s were vastly expanded in the 1960s and 1970s
in such programs as the Great Society and the War on Poverty, each of which
further increased Washington's power by giving it an activist leading role in
areas of the economy and society never before assumed by any level of government.
Beginning in
1937, the Supreme Court's
abandonment of its traditional role of enforcing limits laid out in the
Constitution through a series of decisions that have removed virtually all
constitutional restraints on the national government.
The power of
the national government to regulate interstate commerce, for example, has been reinterpreted as being
virtually unlimited, extending to virtually every area of the economy and
society; the Tenth Amendment, in effect, has been gutted.
Judicial Activism
Judicial activism
now extends to all areas of public and private life because the Supreme Court
and the federal judiciary have succeeded in granting themselves virtually
unlimited power. Federal, state, and local laws, duly enacted by elected
officials, have been struck down; state and local government functions such as
schools and prisons have been taken over by the federal courts and subjected to
their increasingly minute direction; and state constitutions have been
rewritten at will. Referenda passed with overwhelming public support are
annulled. The courts even order that taxes be imposed directly on populations
deemed incompetent to govern themselves.
The courts have
engaged in highly subjective and selective interpretations of the Constitution,
creating rights by locating them in previously unnoticed "penumbras"
and "invisible radiations" even as they ignore other, clearly
expressed constitutional provisions. This has led to inconsistent and confusing
judicial decisions with little, if any, basis in the Constitution, or even in
common sense.
The First
Amendment's guarantee of "speech" has been interpreted to include aggressive panhandling, while the
provision that Congress "shall make no law respecting an establishment of
religion" has been interpreted to mean that the Ten Commandments may not
be used in classrooms but that prisoners demanding pornography must be
accommodated.
The Second
Amendment is regularly circumscribed
with the permission of the federal courts despite the fact that it states explicitly
"the right of the people to keep and bear arms, shall not be
infringed."
The language
of the Tenth Amendment, which states
with magnificent clarity that "the powers not delegated to the United
States by the Constitution...are reserved to the States respectively, or to the
people," has been dismissed as a mere "truism" with no real
application to the national government's authority.
In short,
unelected, unrepresentative, and ideologically driven courts have dispensed
with democratic choice and constitutional procedure to impose sweeping changes
in the law. Intended as a clear and agreed-upon set of rules, the Constitution
has become a document subject to the most arbitrary revision by the federal
courts.
Thus, the system
established by the Framers has largely ceased to exist. Of the elaborate
restraints they placed on the national government, virtually none remain other
than those that Washington chooses to impose on itself.
This is not a
subjective judgment on my part: In recent questioning before the Supreme Court,
the Solicitor General of the United States was asked to name just one area that
could be considered beyond the national government's legitimate reach under the
current interpretation of the Commerce Clause (its constitutional authority to
regulate interstate commerce in order to prevent the states from erecting
barriers against one another). He was unable to provide a single example.
As stated above, early on, the separation of power between the Executive, Legislative and Judicial branches of American government were clear and each segment of these branches played their specific, historical roles as established and envisioned by the Founding Fathers. Today the central purpose of the Constitution limiting the power of government has been forgotten, and many of the mechanisms for enforcing those limits have been dismantled.
The federal judiciary has permitted, even mandated, an open-ended expansion of power by the national government, arrogating to itself the role of legislature of last resort and imposing a socialist agenda explicitly, an agenda often repeatedly rejected by the electorate.
The Untethered Judiciary
Even if elected
officials could be made more responsive to the public's preferences they would
remain subject to the unelected judges of the federal courts. The Supreme
Court, and the federal judiciary as a whole, have arrogated to themselves a
dominant role in every public and private institution in society. Federal
judges have taken charge of wide areas of state and local jurisdiction and
imposed on them their own dictates, from which there is little appeal.
Individual judges overturn and rewrite laws, suspend whole sections of state
constitutions, impose detailed mandates, order actions by officials at all
levels, and even mandate the imposition of taxes on populations which refuse to
vote for them.
No area of
American life can escape detailed examination and reconstruction by the Supreme
Court. Little but their own self-restraint binds members of the Court. Cynics
often say that the Constitution is whatever the Supreme Court says it is. In
fact, no less an authority than Chief Justice Charles Evans Hughes stated in a
1907 speech: "We are under a Constitution, but the Constitution is what
the judges say it is." But the reality is even worse: It is whatever any
five of the Court's nine justices say it is. A 5 to 4 decision one day can be
abruptly reversed the next; what was once legal may become illegal, and vice
versa; wrenching changes can be produced by the replacement of a single
individual on the Court, or even by a change of opinion by any one of the
justices, regardless of the language of the Constitution or the preferences of
the public.
Long-established
rights may be cast aside, while newly mined ones are put in their place. No
law, constitutional provision, popular referendum, community standard, or
tradition, regardless of its support among the people or their elected
officials, has any meaning or standing other than that which the federal courts
choose to give it. All may be set aside, and the public has no recourse. It is
for this reason that the once-routine confirmations of Supreme Court justices
have become brutal political contests.
Based on the
above, I contend and conclude that television has become the most powerful
medium when it comes to getting elected and staying in office. No candidate is capable of waging a campaign
to be elected or stay in office, regardless of how well funded he or she may
be, if for some reason, ABC, NBC or CBS decides that a candidate does not meet
their criteria.
I further contend
and conclude that we no longer have three branches of Federal Government. The courts, especially the Supreme Court,
are overwhelmingly too powerful and, government now takes the form of an
oddly shaped rectangle with Television
being the Fourth Branch of Government.
Were it not for
the “force of Television”, this newly created Fourth Branch, the Federal
Government would take the shape of an isosceles triangle with the base, The
Judicial, being infinite and the two sides, The Executive and The Legislative,
being almost indiscernible.
This newly formed
rectangle, has two very long sides, The Judicial and TV, and two relative short
sides, The Legislative, which is the shortest, and The Executive, which is
longer than The Legislative, but shorter than either The Judicial or TV. It is an odd shape at best and clearly not
a parallelogram, which, as we all know, is a rectangle, all of whose angles are
right angles. This new form, with four
unequal sides is left leaning, I think, but I know of no geometric shape that
would describe or define this tangled mess that has been created.
[1] Martin Wattenberg, The Decline of American Political Parties (Cambridge, Mass.; Harvard University Press, 1982.
[2] Morris Fiorina, Congress: Keystone of the Washington Establishment ( New Haven: Yale university Press
[3] James MacGregor Burns, Roosevelt: Lion and the Fox ( New York: Harcourt, Brace & World, 1956
[4] John P. Diggins, The Proud Decades; America in War and Peace, 1941-1960 ( New York: W. W. Norton, 1988), 21
[5] Neil Sheen, A bright Shining Lie (New York: Random House, 1988)
[6] Morley Shafer, “TV Coverage of the War,” published in Dateline, the publication of the Overseas Pressclub, April, 1966.
[7] “Channels of Power” pp 4-5