a limit to the number of issues an individual can master at any one time. By contrast, in the Executive Branch, new office space can be built and new staffs hired to handle new or expanded responsibilities. At a certain point, however, the proliferation of programs will outstrip the ability of any president to provide the bureaus and agencies under his titular control with meaningful direction.
Today, the sheer size of the federal establishment defies coherent oversight. To compound a president’s problems, Congress has entrusted the management of a host of executive responsibilities to bureaus and agencies that together form a de facto fourth branch of government. These are staffed by essentially irremovable civil servants who exercise enormous influence over just about every facet of American life. And as a practical matter, they operate largely beyond the reach of even the most determined president.
Even in the case of cabinet departments headed by his own appointees, a president is apt to face almost insurmountable problems in getting his programs implemented. White House policy directives have a way of disappearing into bureaucratic black holes, and the cabinet secretaries themselves are often so caught up in detail that they lose sight of some of their administration’s most pressing goals.
A president, of course, is still free to exercise energetic leadership during periods of international crisis. The fact remains, however, that, like Congress, the Executive Branch is experiencing its own institutional gridlock. No matter how large his margin of victory, the most a new president can expect in four or even eight years in office is to nibble away at the edges of his agenda.
The third branch has not fared so badly, even though litigation in federal courts has become one of the great growth industries of the past twenty-five years. Thanks to the proliferation of federal laws and regulations, the continuing discovery of hitherto-unsuspected constitutional rights, and the disposition of Americans to have a court decide almost any dispute, the number of appeals filed in federal courts has skyrocketed from 3,900 in 1962 to 37,000 in 1987. [By 2009, they had risen to 57,740.] The ninefold increase has had its inevitable impact on both the workload and the quality of the work of federal appellate judges, whose numbers have only doubled over the same period.
Nevertheless—and there are those who would consider this a very mixed blessing—the judiciary appears to have suffered neither gridlock nor paralysis. In a sense, the federal judiciary has proven a prime beneficiary of the expansion of federal authority. Thanks to the exploding body of law federal judges are called upon to decipher and apply, they are exercising more power today than could ever have been imagined two hundred years ago; and some are exercising it in remarkably creative ways. Take, for example, the federal district judge who, among other things, ordered a school district in Kansas City, Missouri, to build indoor Olympic-sized swimming pools, operate a twenty-five-acre farm, and install greenhouses and amphitheaters; the judge then directed the district to increase its tax rates to help pay for it all.
Whatever complaints one may lay at the feet of federal courts these days, judicial paralysis is certainly not one of them. On the contrary, the focus of the current debate is over judicial activism. One observation I would make on this prickly subject is that to the degree that federal judges treat the Constitution as no more than a repository of values to be applied without reference to original meaning, to that degree do they undercut the legitimacy of judicial review in the constitutional arena. Instead of interpreting laws, they dispense them.
In Marbury v. Madison, John Marshall asserted the Supreme Court’s right to invalidate an act of Congress by affirming that the Constitution was “superior, paramount law,” and that “it is emphatically the province and duty of the judicial department to say what the law is.” Thus, when the Court concludes that the Constitution and an act of Congress are in conflict, the latter must yield. This seems to me a rather straightforward proposition: The Constitution is law, and, like any other law, it has a meaning that judges are trained to ascertain and apply.
I find it hard, therefore, to reconcile John Marshall’s approach with that suggested by Justice Brennan in a 1985 address at Georgetown University. On that occasion he observed that “the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs.” He stated that “The act of interpretation must be undertaken with full consciousness that it is, in a very real sense, the community’s interpretation that is sought.” This statement, it seems to me, begs the question of a Supreme Court justice’s competence to speak for the community at large.
Justice Brennan also spoke of the Bill of Rights as “a sparkling vision of the supremacy of the human dignity of every individual,” and stated that it is the function of federal courts to bring that vision to full fruition in the light of “the evolution of our concepts of human dignity.” Once again, I am troubled by his implicit assumptions. On the matter of capital punishment, for example, Justice Brennan acknowledged that his own views were shared by neither a majority of the Court nor a majority of his fellow countrymen. Nonetheless, he asserted that “On this issue, the death penalty, I hope to embody a community striving for human dignity for all, although perhaps not yet arrived.” Thus Justice Brennan seems to be saying that he found the authority for his votes on this issue—and, one wonders, on how many others as well—not in the explicit language of the Constitution, nor in community sentiment, but in his own perception of what is required by an enlightened understanding of human dignity. It seems to me that this is the thinking not so much of a jurist as it is of a philosopher king.
Unfortunately, it is the unstated premise of much of the debate over recent Supreme Court nominees that Supreme Court justices ought to serve as philosopher kings. I submit that if the view of a judge as lawmaker is allowed to take root, we will have politicized the selection process and jeopardized the Court’s independence. I fear, from the questions asked at confirmation hearings, that that process is well advanced, as a number of senators seem far more interested in how the nominee might vote on politically sensitive issues than in how he would approach the task of determining what vote the Constitution requires.
This is about as far as I can appropriately go in dealing with the judiciary, so let me return to the problems I see facing the Legislative and Executive Branches. Here, I must confess, I am profoundly worried. I believe that at the national level, we are rapidly losing our capacity for effective government: government in which politically difficult decisions can still be made, problems thought through to ultimate solutions, and long-term commitments undertaken in the confidence that they will be honored; government in which each branch will respect the prerogatives of the others and understand the limits of its own.
As the problems afflicting both Congress and the Executive are essentially structural, they are not prone to easy solution. There are no doubt many causes of the paralysis I see creeping over Washington, but I feel by far the most significant of these has been the virtual abandonment of the principle of federalism. Accordingly, I believe the surest road to true reform is to rediscover and reapply that principle, and, in that way, to reduce the scope of federal responsibilities to manageable size.
I do not suggest that it is possible or even desirable to replicate the division between state and federal authority that once obtained in this country, and that until relatively recently was thought to be constitutionally mandated. Too much water has gone over the dam; too many fundamental changes have occurred in American life. What I do urge is that we reaffirm the wisdom of the original constitutional design, in which only those functions that are deemed essential to the effective conduct of truly national business are assigned to the federal government, while all others are reserved as the exclusive province of the states; and that we then determine, in the light of today’s conditions, which level of government should be doing what.
There will always be an argument as to where the line is to be drawn. But I think that where it is drawn is less important than the principle that a line must be drawn that leaves no question as to the outer limits of federal authority. Of course, having done this, all parties would have to take a blood oath to abide by the new dispensation.
This means that if the more enlightened folk who gravitate to Washington do not like the way the citizens of Illinois, or Hawaii, or Arkansas choose to manage their own affairs,