PROACTIVE CONSTITUTIONAL STUDIES

The Current Discourse.

Political leaders and journalists are talking incessantly about the need for important political reforms in the United States without clarifying the constitutional premises that link them and, when better understood, would facilitate incremental solutions. Consider some examples:

1. The McCain-Feingold initiative to restrict campaign spending cuts at the root of a basic political problem that is cumulatively undermining citizen control in the U.S. and empowering special interests. Members of Congress and the President, who are major beneficiaries of the existing system, resist the enactment of such legislation even though they give lip-service to its goals. If and when M-F is enacted by Congress and signed into law by the President, will not the great special interests find other ways to influence public policy in their favor?

2. President Bush calls for tax cuts and budget trimming as a way to keep Congress from spending more money just because it's in the Treasury. Will this effort actually undermine the pork barrel funding that swells the budget? May it not, more importantly, swell the income and profits of the wealthiest Americans in a cumulatively unjust way?

3. The Florida Vote highlighted the anachronism of the Electoral College system which has, actually, evolved radically from the collegial assembly that the Founders intended to create as a vehicle for choosing Presidents and Vice Presidents. That vote also revealed so many anomalies in the American electoral system that former President Carter said he would not be willing to act as an "international observer" in the U.S.!

4. The American Bar Association has a secret panel that screens candidates for nomination by the President to become Justices of the Supreme Court. The ABA president claims it is non-partisan and uses only "merit" as a criterion in evaluating candidates. But are not lawyers among the "special interest" groups that influence public policy? Are non-lawyers also able to evaluate the very relevant ethical, historical, political and social values of candidates for judicial appointments? How well are lawyers themselves represented by the ABA which, reportedly, does not include 60% of them among its members?

5. California and other states have legalized the use of marijuana for patients whose doctors certify they can overcome devastating pain and suffering only by using this "drug" which has been banned by the federal government. Current moves to enforce federal law against the states not only raise questions about the rights of states in a federal system of government, but they also make one wonder what interests compel Congress and the Administration to persist in supporting a drug-enforcement policy that is not only terribly costly but it seems to be inherently unworkable.

Constitutional Considerations.

Various other issues could be mentioned. They seem unrelated to each other, but almost always commentators suggest that there are constitutional reasons why existing practices must be maintained. Is the constitution that sacred? While seeking to protect the Constitution as a source of justice and stability in American life, may we not also question some of its key provisions that have become anachronistic and produce unjust effects? Although the Constitution provides a mechanism for making formal amendments to the text of this document, there are various other ways in which, by legislation, judicial decisions, and evolving custom, the living U.S. constitution has, in fact, evolved without amendments. For example, the growing reliance on primaries to nominate presidents has replaced the national conventions, a process with fundamental constitutional implications. The federal bureaucracy has been transformed from the body of retainers selected by incoming presidents by legislation that established a merit system for the recruitment of civil servants, a process that, again, has had profound results for the American constitution. The organization and staffing of the White House, Congressional committees, and proliferating government agencies have all evolved in response to far-reaching transformations in America and the world - the form of organization envisioned by the Founders would be hopelessly incapable of managing today's problems.

Although academics, publicists, think tanks, and government entities often invest a lot of energy in the analysis of specific public policies that raise constitutional questions, they are not able to do so in a coherent way that pools relevant findings and leads to coordinated policy proposals. Would it not be very useful and important for the future of democracy in America to establish a national entity with Congressional funding that could investigate the operations of the American constitutional system and promote research by qualified individuals and institutions?

The National Endowment for Peace provides a good model for such an establishment - for details go to: USIP A list of projects supported by USIP grants related to political systems can be found at: Funded Projects. This list includes some projects that raise constitutional questions, but almost always in relation to the propensity of democracies to be more peaceful than non-democratic regimes - the specific provisions of a constitutional system have not been investigated so far as I can see.

By contrast, a national endowment for proactive constitutional studies would focus on the U.S. Constitution, making comparative studies with other systems that shed light on its problems - such comparisons need to include regimes having similar features, such as the separation-of-powers and federalism. The endowment could not only employ qualified specialists to do in-house research, but it could make grants to outside bodies: citizens' groups, universities, and individual scholars, as does the USIP. By pooling the results and mobilizing concerned citizens through conferences and advisory groups, it could provide options for action that are not even imaginable when each public policy issues is treated as an isolated question and the constitution is viewed as an inflexible body of rules that cannot be questioned.

Are there any existing individuals and groups with a potential interest in this idea? Could they be mobilized to support an act or an amendment to an act by Congress that would establish and fund an institution that could sponsor a coordinated pro-active effort to understand the real working and consequences of the U.S. Constitution? Would such an effort produce specific plans, proposals, and techniques for reforms designed to promote the general welfare in a just and responsible way?

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Posted Updated: 2000