The question of size and of effectiveness in American government is beginning to take on aspects of constitutional as against merely political debate. For the better part of a century now, those who have objected to the size of government, especially the national government, have typically been objecting to the new functions the government was seeking to carry out. There was always, that is, a not especially well hidden agenda in the objection to government growth as such. Of late, however, we encounter the argument that government growth has not added to the effectiveness of government, but may even have impeded it. The question appears even where it is not directly posed. Thus, a year after the inauguration of President Jimmy Carter the nation was awash with wonder that so much was being attempted and seemingly so little achieved. At first, political explanations were put forward for this, principally that the President’s difficulties were of his own making. But then, with increasing frequency, commentators began asking whether the more important explanation was perhaps to be found in the way our government at present works, or does not work. It is a matter that deserves inquiry.
Further, to the degree that we are dealing with a question of constitutional dimension, it deserves inquiry carried forward in the spirit of the framers of the Constitution, which was very much a scientific spirit.
The establishment of the American government in the latter part of the 18th century was a distinctive event in many ways, but in none more than the belief of those involved that they were acting upon scientific principles. These included principles of political science which was seen as a branch of an essentally unified science. Hamilton noted, in the ninth Federalist paper, that previous republics had had such stormy histories that republicanism had admittedly fallen somewhat into disrepute. This tendency, however, could be overcome thanks to progress in political science:
The science of politics, however, like most other sciences, has received great improvement. The efficacy of various principles is now well understood, which were either not known at all, or imperfectly known to the ancients.
Hamilton went on to cite, as examples of “new discoveries,” the various constitutional institutions with which we are now familiar: separation of powers, the system of checks and balances, popular representation in the legislature, the independent judiciary, and so on.
Whatever the impression, American government has maintained this early disposition. American political science has for the most part been a pragmatic discipline while American political scientists have not always been impractical men. The sixth president of the American Political Science Association became the twenty-eighth President of the United States. The profession continues in the service of government largely conceived.
It is in order, then, to expect that there should now be forthcoming a considerable effort to diagnose what so many consider to be the sickness of government in our time, a sickness associated with grossness, with the proposition that government is too big and doesn’t work.
Within the federal government (and probably at other levels also) developments now several generations old have caused the executive branch to become greatly enlarged, and, apparently in consequence, to function with greater difficulty. These developments have more recently appeared in the legislative branch, which commences to have similar difficulties. And they are now beginning to appear within the judiciary as well, where, it may be forecast, the same difficulties will also shortly appear.
In the effort to understand this process, a good place to begin is with the familiar notion that by creating three branches and a system of checks and balances which enabled each to impede the functioning of the others, the framers of the Constitution built conflict into the American system. They thought it was inevitable, and on the whole desirable. If they had a disposition, it was for more, not less.
This was a bold idea then and it remains a bold idea today. Most governing systems assume an inherent and ever more manifest harmony of interests and compatibility of behavior. Marxists, for example, presumably still await the withering away of a conflict-free Soviet state. As we look at the experience of the two systems of government, those who devised the American one surely emerge as men who knew more about what the world is really like. Or, alternatively, who were more honest about it.
In that same spirit of realism, James Q. Wilson—the political scientist of our generation who has most usefully studied bureaucracy in its various adversarial modes—holds that organizations come to resemble the organizations they are in conflict with. If one football team begins using offensive and defensive squads, its opponents will soon be doing so too. The German sociologist Georg Simmel pointed out in the early years of the century that organizations in conflict may wish their opponents to resemble them, even, surprisingly, in the degree of their power. Elaborating on Simmel, Lewis Coser writes:
If . . . there exists a rough balance of power, as in pluralistic, multi-group societies, the more strongly organized adversary may actually prefer that the weaker not fight with “unconventional weapons” (corresponding to a different organizational structure), but use weapons similar to his own, making it possible to fight according to comparable rules.
This insight clarifies many otherwise inexplicable phenomena, as in labor relations where after a certain point big employers clearly preferred to deal with big unions; or, conversely, where early on Samuel Gompers, seeking to organize American workers, encouraged employers to organize as well.
The applicability of this theory—which might be called the Iron Law of Emulation—to American government is clear. We may put it thus: whenever any branch of the government acquires a new technique which enhances its power in relation to the other branches, that technique will soon be adopted by those other branches as well.
Consider the Bureau of the Budget (now called the Office of Management and Budget), which was established in 1921. The Bureau of the Budget gave the President an enormous advantage over the Congress. In this all-important function of government, the President had a unified, centralized command as against a dispersed and often internally divided congressional force. Congress sustained defeat after defeat as successive Presidents raised federal expenditures to ever new heights. Interestingly, it was only when the time came that Congress for once wished to spend more money than the President—which is to say during the impoundment controversy with President Nixon in 1973-74—that Congress created a Congressional Budget Office of its own, and a rough equivalence of competence with respect to the techniques of fiscal management and disputation was achieved.
It might have been supposed that the executive would have resisted this, but the evidence (confirming Simmel) is otherwise. The executive seems almost to have welcomed the appearance at the other end of Pennsylvania Avenue of an organization similar to its own with which to conduct the annual Battle of the Budget. We can assume that at OMB it is much more agreeable to be dealing with officials at the CBO who know what the GNP deflator for the last fiscal year is, and who care.
This migration of technique from the executive to the legislative has been going on from the beginning of the 20th century. Further thought would likely produce a more respectable taxonomy, but present purposes will be served by a list that begins with buildings and ends with attitudes.
In 1902 President Theodore Roosevelt built the West Wing of the White House, where the Oval Office is located. Of a sudden the President was an executive. He no longer worked in his living room, but had an office building in the manner of the business leaders of the age. (Here one observes the federal government as a whole adopting the techniques of the business world with which it was then increasingly in conflict.) The very next year the House of Representatives voted itself an office building, and the year after that the Senate did also.
As is well known, each branch continues to build more office buildings for itself, each of which fills up (such are the demands of the conflict with the other branches) until overcrowding requires yet another building.
The man who has traveled abroad has an advantage in certain kinds of arguments over the one who has not. President and Congress stayed home until 1905 when President Theodore Roosevelt went to Panama. Next, President Taft went there also. Then President Wilson went to Paris. A generation later, Presidents spent an important segment of their time traveling in other countries. In 1954, Congress began to provide easily accessible funds for its own travel abroad. By now, presidential and congressional groups crisscross each other in the farthest reaches of the planet. The practice seems to have begun of Presidents’ arranging to meet Congressmen abroad, possibly because of difficulty in getting their schedules together in Washington.
The Presidency acquired an investigative organization, the FBI (technically in 1908, but reaching its famous status in 1924, with the appointment of J. Edgar Hoover as director), which was a formidable if not always straightforward weapon. There is now discussion in the Senate of establishing an investigatory arm for such purposes as screening presidential appointees, a function now performed by the FBI.
Access to foreign intelligence is a key element in getting one’s way in disputes over foreign policy. In 1947, the Presidency obtained the Central Intelligence Agency, and for a period was uncontested master of the intelligence “secrets.” Congress retaliated not by establishing an intelligence service of its own, but by creating, in 1976, the Senate Select Committee on Intelligence with complete access to CIA information. The House, in 1977, established a similar committee.
In 1962, the Presidency acquired the Office of Science and Technology, having previously, in 1957, established the President’s Science Advisory Committee. In 1974, Congress acquired the Office of Technology Assessment with an Advisory Council that serves essentially the same function that PSAC once did. (Like the Congressional Budget Office, the Advisory Council to the Office of Technology Assessment was first headed by a Democrat who had been displaced from an equivalent or comparable position in the executive branch when a Republican administration came to power.)
Economic knowledge is, of course, another characteristic technique of modern organization. In 1946, the Presidency obtained the Council of Economic Advisers, a powerful institution not really matched by the Joint Economic Committee established by the same legislation. Still, the staff of that committee does give Congress its own experts with which to dispute those of the President.
This pattern—of the executive branch acquiring a new technique, followed one, two, or three decades later by an equivalent action on the part of the Congress—is now well set; and it has come to involve the Congress in a great many executive functions. Thus in 1963, the Presidency acquired the Special Representative for Trade Negotiations. In 1973, the Senate Finance Committee established a Subcommittee on International Trade whose members are official advisers to the President’s trade negotiators. In part, this mixing of functions may be seen as an attempt by one branch to prevail in conflict by coopting the other, which it invites into the decision-making process so that the final decision will be supported. But in even larger part it is an instance of the Iron Law of Emulation.
A more subtle process involves the emulation by one branch of another in order to eliminate any appearance of disparate levels of legitimacy. In 1941, the executive branch established the Committee on Fair Employment Practices. In 1975, members of the House established a Fair Employment Practices Committee (with an interesting mix of Representatives and staff members). A Senate bar on employment discrimination was adopted in 1977.
Similarly with ethical standards. For members of the executive, such standards, including financial disclosure, were promulgated by President Johnson in 1965. The House created a Committee on Official Conduct in 1967. In 1976, the Commission on the Operation of the Senate, chaired by former Senator Harold Hughes, advocated the adoption of explicit standards. The task was completed by a committee chaired by Senator Gaylord Nelson, and resulted in the Senate’s adoption of such a code in April 1977.
The bureaucratized and differentiated structure of the executive and, increasingly, the legislative branches has not yet appeared in the judiciary. But there are signs that the judiciary is beginning to take on functions which are invariably associated with bureaucratization and differentiation. This is the rise of what Abram Chayes, in a May 1976 Harvard Law Review article, has called “public-law litigation.” Traditionally, adjudication has been understood to be a process for resolving disputes among private parties which have not been privately settled. But Chayes holds that this traditional view cannot account for much of what is now actually happening in federal trial courts. Civil litigation increasingly involves determination of issues of public law, whether statutory or constitutional, and frequently terminates in an ongoing affirmative decree. The lawsuit does not merely clarify the meaning of the law, remitting the parties to private ordering of their affairs, but itself establishes a regime ordering the future interaction of the parties and of absentees as well, subjecting them to continuing judicial oversight.
Professor Chayes contends that such a role for the courts, pursued through decrees in class-action suits, is unprecedented and raises serious concerns of legitimacy. He allows that the experience so far has been mixed. Reapportionment decrees, as an example, have in his view worked well, but it remains to be seen how successful federal judges will be at running mental institutions. He is, however, optimistic:
[D]espite its well-rehearsed inadequacies, the judiciary may have some important institutional advantages for the tasks it is assuming:
First, and perhaps most important, is that the process is presided over by a judge. His professional tradition insulates him from narrow political pressures, but, given the operation of the federal appointive power and the demands of contemporary law practice, he is likely to have some experience of the political process and acquaintance with a fairly broad range of public-policy problems.
Second, the public-law model permits ad-hoc applications of broad national policy in situations of limited scope. The solution can be tailored to the needs of the particular situation and flexibly administered or modified as experience develops with the regime established in the particular case.
Third, the procedure permits a relatively high degree of participation by representatives of those who will be directly affected by the decision. . . .
Fourth, the court, although traditionally thought less competent than legislatures or administrative agencies in gathering and assessing information, may have unsuspected advantages in this regard. . . .
Fifth, the judicial process is an effective mechanism for registering and responding to grievances generated by the operation of public programs in a regulatory state. . . .
Sixth, the judiciary has the advantage of being non-bureaucratic. It is effective in tapping energies and resources outside itself and outside the government in the exploration of the situation and the assessment of remedies. It does not work through a rigid, multilayered hierarchy of numerous officials, but through a smallish, representative task force, assembled ad hoc, and easily dismantled when the problem is finally resolved. . . .
But if the federal courts are going to make law (a legislative function) and enforce law (an executive function)—which is what Chayes’s term “the public-law litigation model” implies—they are inevitably going to find themselves in conflict with the legislative and executive branches. In that conflict they will be just as inevitably led to adopt the techniques of the other two branches in order to prevail in the ensuing conflict; and, as Simmel would have it, they will be encouraged to do so. They will thus develop a “rigid multilayered hierarchy of numerous officials” of their own.
On this point I find Donald L. Horowitz, in his fine study, The Courts and Social Policy (1977),1 rather more persuasive than Chayes. After examining four cases of “public-law litigation,” Horowitz concludes:
The four cases make plain the impotence of the courts to supervise the implementation of their decrees, their impatience with protracted litigation, and their limited ability to monitor the consequences of their action. Called upon increasingly to perform administrative functions because they are not burdened with administrative rigidities, the courts are also not blessed with administrative capabilities.
What experience suggests, however, is that if an organization in need of administrative capabilities does not have them, it will seek to acquire them.
Politics, as Maurice Cranston contended in his inaugural lecture at the London School of Economics (1971), is an argument about the future. Rarely, one would add, is any person or party entirely correct. Usually predictions are significantly wrong, and this is the problem the courts confront. Up until now, the primary task of the federal courts has been to rule on the meaning of existing laws, the Constitution foremost. The judges and justices can with some equanimity rule on just what the Founding Fathers intended, for it is extremely difficult to prove they are wrong, and, in any event, they never are wrong until they themselves so decree. (Thus the Brown  decision declared Plessy v. Ferguson  to have been wrong. At this moment a considerable number of scholars, notably Walter Berns in his recent The First Amendment and the Future of American Democracy , hold that the Court’s interpretation of the “establishment clause” of the First Amendment is simply wrong. But until the Court changes its mind, the interpretation stands.)
But what about predictions of the future, where most of us mostly are wrong and can be shown to be? What about predictions of the therapeutic consequences of one form of psychiatric aid as against another? A court without an elaborate bureaucracy to fuzz the results and conceal its mistakes will soon be judged no court at all, but merely a panel of well-intentioned amateurs exposed to all the world as bumblers. The Court will get a bureaucracy.
And more, if some “master plans” are implemented. In 1975, the Architect of the Capitol was authorized by Congress “to prepare studies and develop a Master Plan for future developments within the United States Capitol Grounds, for the future enlargement of such grounds. . . .” Phase II of the Architect’s report appeared in August 1977. Note these passages concerning the Supreme Court:
The Office of the Marshal and the Administrative Assistant to the Chief Justice have outlined the Court’s current and future space needs based on trends in employment and the Court’s load. Since 1970 there has been a steady increase in support positions. To maintain the high quality of judicial consideration of an increasing case load, additional law clerks, secretarial, and messenger positions were added to the staffs of the Justices’ Chambers. This has also led to the creation of a Legal Office staffed by career professionals. Of similar importance has been the appearance of career professionals in various offices of the Court to meet the challenges that have been experienced throughout the federal and state Judiciaries.
In predictable response, the executive has been getting itself judges. In August 1972, the title Hearing Examiner within the executive branch was changed to Administrative Law Judge. Indeed, there are now 1,071 administrative-law officers in the executive branch who are formally designated Administrative Law Judge, almost 600 more than the total of federal District and Appellate Judges. Twenty-nine agences of the executive branch now have such judges; the Social Security Administration alone has 660. In the meantime, there are another 100 examiners, attorneys, and appeal-board members within the executive branch who seem to have appropriated the title of Administrative Judge, though this is not a “proper” civil-service category.
Once again, a more elaborate taxonomy will perhaps be developed some day, but the general pattern seems distinct. We don’t yet think of this as a generalized pattern, but we behave as if the pattern had become general. Thus in the 1930’s the congressional party (as it were) directed its strongest attack against the growth of the executive under the New Deal. A generation or so later, the presidential party in the person of Gerald Ford attacked the “Billion Dollar Congress.” In that same election year, the successful candidate, Jimmy Carter, attacked both, with special emphasis on the “bloated, horrible bureaucracy.”
In recent Senate hearings Claiborne Pell of Rhode Island, an exceptionally careful and perceptive committee chairman, observed that the Senate budget for Fiscal Year 1978 was to be greater than the budget of seventy-four countries. The Washington Post Magazine of April 23, 1978 featured on its cover a story entitled, “The Senate: Snarled in Bureaucracy?” This story, well done, was nonetheless perfectly recognizable as the same story that began to be written about the executive a generation or so earlier. The judiciary’s time is at hand, as evidenced by the appearance of scholarly works—like Nathan Glazer’s “Towards an Imperial Judiciary” (Public Interest, Winter 1975)—which will in due course be followed by journalism.
The most consequential result of all this is overwork. It may come as a surprise to the public to learn that persons in positions of authority in government are overworked, but almost all are. (Whatever, if anything, scientific management may have to say on the subject, I offer the impression that overwork begins at some point between a sixty- and seventy-hour work-week made a year-round routine.) To be sure, persons who are overworked do not necessarily achieve a great deal. Overwork typically appears at a point where productivity begins to fall off. The whole of modern government is made up of men and women trying to jam ever greater resources into the ever tightening angle of an asymptotic production curve.
Overwork begins as a technique, a new way of achieving a goal, usually that of prevailing in conflict. But it soon becomes a condition in its own right, rather like bureaucracy itself. And as with most of the techniques we have discussed, overwork first appeared in the executive.
In general, the modern economy has brought about an inversion of effort as between managerial and production workers. What were known as “bankers’ hours” certainly obtained in the government offices of the 19th century when there really wasn’t that much for bankers or bureaucrats to do. Recall Trollope’s portrait, in The Three Clerks (1874), of Mr. Fidus Neverbend, the premier workaholic in the civil service of his time:
Mr. Fidus Neverbend was an absolute dragon of honesty. . . .
A quarter of an hour spent over a newspaper was in his eyes a downright robbery. If he saw a man so employed, he would divide out the total of salary into hourly portions, and tell him to a fraction of how much he was defrauding the public. If he ate a biscuit in the middle of the day, he did so with his eyes firmly fixed on some document, and he had never been known to be absent from his office after ten or before four.
This compulsive wretch worked a full six-hour day!
Or consider the rather more inspiring figure of Henry L. Stimson as Secretary of State during the administration of President Hoover, a time of vast international crisis. Hoover responded by spending ever more time on the job; Stimson responded by horseback riding. In On Active Service in Peace and War, Mr. Stimson and McGeorge Bundy write:
Mr. Hoover was a worker, capable of more intense and prolonged intellectual effort than any other man Stimson ever met; his cure for all his troubles as President was more and harder work. Stimson was not made that way; his strength depended on regular rest, substantial vacations, and constant physical exercise, nor did he accept as suitable exercise Mr. Hoover’s game of medicine ball—it seemed to him as dull as weight lifting, and about as refreshing. More and more after the middle of 1930, Stimson found himself oppressed by the official atmosphere of Washington.
As with much else in the New Deal, then, overwork began with Hoover, and was soon institutionalized. Government became something of a trial of strength. Those in the Cabinet and the White House not capable of sixteen-hour days were driven from the field as inexorably as were the fainthearted and weaklimbed in the tournaments of medieval courts.
Inevitably, overwork in time appeared in Congress. President Roosevelt’s Hundred Days are so designated because his first Congress met March 9, 1933, and went home June 15, not to return until the following January (for a long session that lasted until June 18). To the Jeffersonian mind, after all, a great attraction of Washington as the seat of government was that it turned malarial in April, so that a Congressman who stayed on until May might not be back in December! But with the 1930’s, sessions began to lengthen. Then came war, and the first session of the 77th Congress (1941) met for 365 days. After the war, the duration of sessions dropped back, but in the 1960’s it lengthened again. The first session of the 91st Congress (1969) ran 355 days. The Congress is now almost permanently in session.
The number of votes per session has increased considerably more than the number of days. In the first session of the 83rd Congress (1953), there were 80 votes in the Senate and 71 in the House. In the first session of the 95th Congress (1977), there were 636 and 706 respectively. A congressional study committee in 1977 found that for one-third of their day, Members of the House were supposed to be in at least two places at once, this being the result of multiple committee assignments.
Time, of course, is what is most in demand in an overworked institution. Energy is what is most lacking. “Energy in the executive,” said Hamilton, “is a leading character in the definition of good government.” Something not different is the case with the legislative. But energy is the first quality to disappear when the workload becomes too heavy. Energy and creativity.
Thus, in the sixteenth month of the Carter administration the Wall Street Journal reported “combat fatigue” had already set in: “A key White House aide talks of leaving. The general reason: loss of the exhilaration needed to endure seventy-hour work weeks.” Good men and women, who should be just about, in an earlier image, getting their second wind, were already used up. An absurd waste, but part of the system they were caught up in. To relieve the burden, President Carter proposed just the wrong remedy. In February 1978, he asked Congress to authorize an additional 100 “supergrade” and “executive-level” employees for his immediate White House staff. This is surely startling in a chief executive who came to office not just formally pledged to cut the size of his office (as Presidents now routinely do) but seemingly determined to do so. Any new top executive will, of course, require that those already there work even harder to keep up with one another.
Overwork is typically followed by efforts to improve efficiency along lines of what is termed organizational rationalism. The first such effort in the executive, the Commission on Department Methods, headed by Assistant Secretary of the Treasury Charles Hallin Keep, was established in 1905. President Franklin D. Roosevelt established the more noted Committee on Administrative Management, headed by Louis Brownlow, in 1936. The first congressional committee of this sort was the Joint Committee on the Organization of Congress, established at the end of 1944 and chaired by Senator Robert La-Follette, Jr., of Wisconsin. Many of its recommendations became part of the landmark Legislative Reorganization Act of 1946. It was this law which established “professional” committee staff for the Congress, the congressional variant of the civil service, to be appointed “without regard to political affiliations and solely on the basis of fitness to perform the duties of the office.”
The most recent, and notable, effort in the legislative branch was the Commission on the Operation of the Senate established in 1975. The report, Toward a Modern Senate, was notable for a refreshingly candid statement of the nature of a Senator’s day—“long, fragmented, and unpredictable. On the average, Senators put in an eleven-hour day”—and a not less candid statement of the goal to help Congress organize to counter the expanding power of the Presidency and the executive branch, “an expansion that recently threatened to upset the constitutional separation of powers. . . .” Predictably, the commission proposed that the Senate adopt more of the techniques of the executive.
Already the legislative branch had acquired one of the more important powers of the executive, the Congressional Veto, which was created by the Reorganization Act of 1932, and serves very much as does the executive veto provided in the Constitution. In 1975 alone, congressional veto provisions were incorporated into fifty-eight laws.
As in the case of its acquisition of judges, the executive branch has responded in turn to competition from the legislative by emulating some of its techniques. We could, for example, interpret the establishment, and now proliferation, of independent regulatory commissions—standing committees, as it were—as a legislative technique planted in the executive. This began, of course, with the Interstate Commerce Commission in 1887, an era of relative congressional ascendancy over the Presidency.
Another, subtler, example—and one suggestive of the damage that the Iron Law of Emulation has done—may be found in the way Presidents now seem to negotiate with and mediate among their bureaucracies, much in the manner of House and Senate conferees working out their differences over a bill. Thus in the spring of 1978, after one full year of interdepartmental negotiation, President Carter announced his urban policy. It contained no new initiatives of any consequence. It was rather an immensely complex agreement as to what new resources would be allocated to dozens of different, and already established, programs. Indeed, it was not a policy at all, for nothing of that order could have been achieved by negotiation.
The ultimate result of these parallel developments may be simply stated: stalemate. As each branch acquires more of the techniques of the others, especially as executive-branch techniques migrate to the other two, each becomes more capable of thwarting the others’ purposes, and probably more disposed to do so. For while there is surely a disposition to leave to others tasks for which one has no special capacity, this disposition disappears when everyone “knows” everything because everyone has his own information and experts—as is increasingly the case with each of the three branches of our government.
Is it not also likely that as the techniques of the three branches become more alike, the branches will become more homogeneous? Or is that a tautology? No matter. The point is that the branches were intended to be distinctive and to attract distinctive personalities; and they have long done so. The judicial temperament is a real thing. Anyone who has been required to make choices for the judiciary comes to know it and respect it, even if he cannot too closely define it. The ability to manage is a distinctive gift which we associate with persons called executives, and is, we hope, to be found in the executive branch. The genius, the central, the all-informing, all-pervasive principle of the legislative branch is that of representativeness. As each district, each state, is different, so each Representative and Senator is different and should be. None is alike, and none is expected to be. If there is pressure on the individual, it is for him not to conform to his fellows. That is what is lost when bureaucratic routine and Weberian predictability take over from the principle of representativeness.
If a large (and unsupported) forecast may be permitted, it is that the long-run effect of competitive emulation will be to create government by submerged horizontal bureaucracies that link the three branches of government. They will speak their own language and stay in place while their constitutional masters come and go. (For some time, political scientists have recognized vertical bureaucratic ties that link state, local, and national government: the highway profession, for example, or social welfare.) Thus President Carter began by ordering each of his cabinet officers to read all regulations before signing and promulgating them. But this soon became impossible. The bureaucracy writes them and signs them, and, as the Washington Star bravely strives to establish, heaven help any outsider who tries to read them. They are probably comprehensible to the committee staff of the Congress, who draft the legislation which the regulations typically carry out. But I know it to be true in my case, and I cannot suppose I am alone, that most legislative language is incomprehensible to me. I depend utterly on translators. One has the impression— little more—that judicial decrees are increasingly the work of professionals. The end result of all this is surely predictable, almost, again, tautological: a great falling away of democratic, elective government.
The question, then, is of a constitutional order. Americans, understandably, tend to think of constitutional change in terms of the amendment process. But this is not the only way change takes place, as John Marshall demonstrated when he established that the Supreme Court had the right of judicial review of acts of Congress. In this sense the American Constitution can evolve rather in the way the British constitution is said to evolve, and indeed does. And the British experience ought to serve as a particular lesson to us just now.
I do not pretend to any special competence here, but I believe it is fair to say that in the course of the 20th century the British have more or less abolished Parliament. I cannot imagine that at any point in the process the British electorate would have voted to do this; but successive incremental changes over three-quarters of a century have brought it about as an accomplished fact. Every five years or so, as things now are, the British elect a body of persons (still called Parliament in accord with the British willingness to change anything but the appearance of things) which in turn elects a chief executive called Prime Minister. This Prime Minister takes over the executive branch (called Whitehall) and governs with only the barest reference to Parliament for the next five years. Legislation takes the mode of the executive order under the American Presidency. The bureaucracy drafts it, the Prime Minister sends it to Parliament, and with the rarest exception, the bills are enacted by the Prime Minister’s majority which exists by definition, else he would not be Prime Minister. On five occasions since 1945 a British Prime Minister lost his majority in an election. He was then replaced by another Prime Minister who ruled in precisely the same manner. Parliament as such has no power to differ with the Prime Minister on any issue save the ultimate one of who should be Prime Minister.
In the Sieff Memorial Lecture at the Royal Institution in 1977, Roy Jenkins allowed that in theory Parliament is sovereign, but in practice,
What parliamentary sovereignty really means is party sovereignty: and a party that wins a bare majority of seats in the House of Commons enjoys the full fruits of sovereignty, even if it has won the votes of well under half the electorate. So long as its members obey the whip, such a party can force through whatever legislation it wishes, even on matters which in most other democracies would require an amendment to the constitution. Although the courts have begun to show more willingness to challenge the executive than they used to do, their ability to resist a determined government with a parliamentary majority at its back is severely limited.
Jenkins in fact suggests that the British at last get themselves some measure of judicial review to deal with the enormous and effectively unchallenged power of the civil service. In passing, he notes that the impotent Westminster Parliament “is notoriously overworked.” Precisely so: for it has nothing to do.
That the British, who think of themselves as caring very much about such matters and as attending to them, have let their institutions decline so is not a good omen for us. But then we are in a far less etiolated condition. Our situation is not one of a single branch superseding the others. For some time we have had a pattern of one branch frustrating the efforts of the other, with moments of intensive cooperation coming at most every generation or so. We do not really have stalemate yet. But signs do appear.
Consider the question of the roving political elites, whose quest for power takes them first to one branch, then to another, bringing new techniques of conflict and casus belli with them. First the White House staff, then the congressional committee, then the judicial chambers. The quest is essentially undemocratic, and their enthusiasms diminish as democracy catches up. They move on. But gigantism remains and stalemate grows. This pattern needs to be identified more frequently, and very much to be resisted.
How might we respond? Here I would be adventurous. I would dare to think that the American polity is as capable now as it was at the outset of adopting wise modes of government because we think them wise. What James Q. Wilson writes is probably true. What Simmel wrote is probably true. Yet it is also true that a people that sees its self-interest in not doing what comes naturally can do otherwise. That may be more a wish than a rule, but who will know unless we try?
If the Iron Law of Emulation is to be broken, it must first be recognized. We require some consciousness-raising. The tendency to introduce new conflict techniques can be restrained by the knowledge that they will almost certainly be matched. Hence we need first to become more aware of the pattern of one branch adopting the techniques of the other, and to sense the futility of it all. Just this much might have real consequences.
1 See also his article, “Are the Courts Going Too Far?,” COMMENTARY, January 1977.