The Power Of The Unelected Branches Of Government












Presented to The Raleigh Tavern Philosophical Society




Kenneth T. Hern


January 2003












      The Power of the Unelected Branches of Government




Up until the end of World War II, an elected party had a mandate to govern and the winning party had the capacity to govern until the next election.  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.   This was not always so and I will site instances where this was not the case but, by and large, elections brought a sense of closure until the next election.


                                                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?


                                                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


                              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