Chapter 1: The American Political Scene: A Blooming, Buzzing Confusion

 

PART 1:

A Reintroduction to Thinking about Politics

Of all forms of mental activity, the most difficult to induce even in the minds of the young, who may be presumed not to have lost their flexibility, is the art of handling the same bundle of data as before, but placing them in a new system of relations with one another by giving them a different framework.

Herbert Butterfield, The Origins of Modem Science

Chapter 1: The American Political Scene: A Blooming, Buzzing Confusion

Chapter Objectives

By the time you have finished reading this chapter you should understand:

• 1. Why it is impossible to "introduce" a college student to American govemment.

• 2. Several reasons why government and politics are difficult subjects.

• 3. Why we must try to avoid both undersimplifying and oversimplifying when thinking about politics.

• 4. What is meant by a "paradigm" and why the U.S. Constitution is an example of one.

• 5. Some advantages of testing our ideas to see whether they are compatible with one another.

• 6. Several reasons why the Constitution is not an adequate paradigm upon which to base a study of modem government.

Key Terms

conceptual acuity
paradigm
inference
simplification

We have seen that scientific and technological discoveries have considerable effects on the development of society. It follows that societies in which scientific and technological discovery is particularly frequent must be societies in which predictions of their future condition is particularly hazardous.*

AN INTRODUCTION

Western political philosophy goes back at least to the ancient Greeks. Several centuries B.C., people like Thucydides, Plato, and Aristotle were trying to think systematically about politics. Their ideas are still worth examining. If you continue to study government, you certainly should and probably will read things by the Greek philoso- phers and their distinguished successors: Thomas Aquinas, Machiavelli, Thomas Hobbes, John Locke, Jean-Jacques Rousseau, Edmund Burke, John Stuart Mill, Friedrich Nietzsche, Karl Marx, and many others. These people had many useful ideas, and this textbook naturally has been greatly influenced by them. But if the present work merely expressed old ideas, it would only be an "introduction" to thinking about politics. it is also a reintroduction. Some of the approaches suggested here have not been tried before. We speak of a reintroduction also because few students will find thinking about politics an entirely new experience. It is impossible to "intro- duce" people to something with which they are already somewhat acquainted.

What Makes Politics Complex?

Politics can be a difficult study for several reasons. Societies are very complex. The number of possible interactions among four billion individuals is incredibly large.

Language. Language, another complicating factor, is part of the basic stuff of politics. Campaign oratory, legislative debates and hearings, communications between bureaucrats, opinions handed down by courts--all are expressed in words. But let us try to answer the simple question, What is the opposite of "go"? There are at least two different answers: "come" and "stop." But these do not mean the same thing and could themselves be considered opposites. "Go" therefore must have at least two different meanings, one of which is the opposite of "come," and the other the opposite of "stop." And this is not unusual! Commonly used political words such as democracy, liberty, rights, segregation, and aggression often have More than one meaning or referent; they express more than one concept. We must consider context in determining what people mean when using words like these.

Students of politics must therefore try to improve their conceptual acuity, their ability to see different concepts expressed by a single term. (When we find this practice a nuisance in others, we ungenerously call it "hairsplitting.") Sensitivity to language is a must for those who would think about politics and make sense. "The meaning doesn't matter if it's only idle chatter." [Footnote 1] If your instructor has not asked you to do so as a part of your course, you would do well to get and carefully read a book such as S. 1. Hayakawa's Language in Thought and Action, Stuart Chase's The Tyranny of Words, or-for real gluttons for intellectual punishment-Alfred Korzybski's Science and Sanity.

The Invisibility of Government. Another complication for students of politics is govemment's invisibility. As Woodrow Wilson once said, "No man has ever seen a government. I live in the midst of the government of the United States, but I never saw the government of the United States." [Footnote 2] All that we can see are specific people, buildings, documents. We can see the president. But the president is not the government. We can see the Capitol Building, but that building is not the government. We can see the Constitution, but the Constitution is not the government. "Government" is a high level abstraction alluding to all of these things and much more. Its invisibility places us in the same position as physical scientists studying such unobservable things as the internal structure of atoms. We must look at what we can see, add to personal observations the credible reports of others, and put together an inferential picture of government, just as physicists and chemists put together inferential models of atomic structure.

Inferences are conclusions about what cannot be observed based upon what can be. In drawing inferences, good logic is all important. We do not want to imitate the six blind men who tried to identify an elephant by experiencing it in different separate parts. [Footnote 3] We cannot rest our notions of government or politics upon our experience of their segments. And if we are to think realistically and creatively, we must be willing to push our logic to its limits, to follow ideas wherever they lead.

Remember that all political discourse is a mixture of sense and nonsense, and that the two are often integrally related. This is true in the works of Plato, Alexander Hamilton, Karl Marx, in your own ideas and those in this textbook. Your job is to try to figure out which is the sense and which is the nonsense and to avoid the twin pitfalls in uncritical thinking: accepting blindly and rejecting too quickly.

HOW WE CAN INFORM OURSELVES

To be well-informed about American politics, we must read newspapers and magazines, listen to radio and television, and observe what people immediately around us are doing and saying. But if we cannot process them into a composite picture, our efforts to follow current events will only confuse us. Before discussing strategies for clarifying our vision, let us look at today's world without benefit of systematic processing.

An Unsystematic Survey of the World

In Georgia no one can be licensed to work as a commercial photographer unless he can "pass with flying colors a Wasserman test for syphilis." [Footnote 4] Eighteen years after the much-applauded Supreme Court decision striking down racially discriminatory treatment of students by the public schools, an amendment is offered to the Constitution:

This Constitution shall not be construed to require that pupils be assigned or transported to public schools on the basis of their race, color, religion, or national origin.

The proposal draws screams of anguish from civil rights groups.

"Fly now, pay later!" proclaim the travel brochures. Airlines advertise the joys and comforts of their particular planes, meals, and stewardesses. Russell Baker, viewing the same panorama, acidly notes that we "sit strapped in metal containers eating unspeakable messes while being shot through the air at 500 miles per hour." [Footnote 5] To end a strike by Newark, New Jersey, firemen, "state urban aid funds originally authorized for helping the poor, were diverted to salary increases." Footnote 6

An expert predicts that the price of football helmets could increase from $50 to $300 if present trends in liability insurance costs continue. [Footnote 7] The National Association of Parliamentarians decides that parliamentarians must use the word "chairman" rather than "chairperson," noting long usage of the expressions "madam chairman" and "mister chairman." A tax based on the number of times a person engages in sexual intercourse is proposed. Footnote 8

Snow high in acid content falls on North America and Europe. Experts suggest a connection with increased burning of coal. [Footnote 9] Health authorities in a small Pennsylvania town provoke public outcries by efforts to inspect the kitchens of people making things for charitable baked goods sales. Footnote 10

William Howard Taft, the only man to serve both as president and as chief justice of the Supreme Court, observes that "I have heard of the man who went into office with a majority and left with unanimity." [Footnote 11] President Richard Nixon abdicates, but not with unanimous approval. Some Americans would have him stay, for one reason or another. Others will not be satisfied unless he immolates himself on prime time television. Of 120 families offered $500 each to give up watching TV for a month, 93 turn the offer down.Footnote 12

English Prime Minister Edward Heath, who went through college on a pipe organ scholarship, says he had no stomach for the nastiness of a musical career. "I did not want anything to do with unpleasantness, so I went into politics. [Footnote 13] Two coeds at MIT publish an article "in which they rated the sexual performance of 36 male students by name, awarding each from four stars to none. . . . The women said they based the ratings on personal experience." Footnote 14

Dr. Henry Kissinger comments on right wing extremists opposing his arrangements for President Nixon to visit Red China: "They sound very much like leftwing extremists, only their vocabulary is not as good." [Footnote 15] Inflation continues. Unemployment goes down, and then goes up again. New scandals regarding bribes paid by multinational corporations to government officials come to light. Taxes now constitute the largest single item in the average individual's cost of living--more than food, shelter, or clothing--and are also increasing faster than the other items that make up the cost of living. Warning: apricot pits may be dangerous to your health. Pope reaffirms opposition to birth control and abortion. Inflation continues. U.S. attacked in the U.N. Warning: children's pajamas fireproofed by requirement of federal law may be dangerous to health. . . . Plane crashes. . . . Seat belt use in automobiles decreases. . . . Record small voter turnout. Congress continues energy debate . . .

A System for Making Sense of the World: Three Strategies

To avoid being swamped by the facts which are available for our attention, we must adopt intellectual strategies. We will consider three useful strategies here: (1) avoiding undersimplification; (2) being self-conscious about paradigms; and (3) striving for consistency in thinking.

Avoiding Undersimplification. That people are rarely accused of undersimplifying may suggest something about our society. Everybody knows that oversimplifying is bad, but fewer people today seem aware of the opposite danger. Our world offers an infinite variety of events. Literally, we can never step into the same river twice. Different molecules of water are present at different times. The currents, temperatures, lighting, pollution levels, etc., are never exactly the same. As long as we focus on this variety with no theoretical processing, conscious or unconscious, we can never understand our environment. Without processing, our world is a blooming, buzzing confusion.

An "unprocessed" world may resemble that perceived by young babies. To babies, almost all experiences are equally alien and equally interesting. At first, a baby may perceive no patterns, no repetitions, no regularities in the world around it. What parents see as repetitions of the same event, such as changing a diaper, may not seem repetitive to the baby. The words said, the lighting, the order in which cleaning operations are undertaken, may seem to be completely unique occurrences.

We do not have a basis for predicting the future until we can perceive regularities. Until we see "repetitions," we can have no language. Language itself appears rooted in classified experiences, different events lumped into the same "class" or category. To classify, we abstract, we concentrate on similarities and ignore many differences. A simple word like "election," for example, can refer to extremely diverse events: the public rubber-stamping of official candidates in the U.S.S.R., the characteristic two party battles in U.S. presidential politics, the multiringed circuses in European countries with five or more major political parties.

Abstraction, classification, and language itself are thus forms of simplification. They are tools with which we avoid undersimplifying. They help make our complex physical and social environments intellectually manageable. By putting apples into the same category as the moon, Newton was able to formulate the modern laws of motion and gravity. Similar simplifications are equally necessary for thinking about the equally complicated world of politics.

Of course, the more commonly feared problem of oversimplification is itself all too real. "Earth, air, fire, and water" proved to be an oversimplification, and modern chemistry did not take off until the more complex classification of Mendelyeev's periodic table was put forward. As Aristotle indicated over 2000 years ago, "goodness is the quality that hits the mean. . . . [Virtue is] a mean condition as lying between two forms of badness, one being excess and the other deficiency." [Footnote 16] We must seek neither the greatest possible simplification, nor the least. We must aim for that degree of simplification most conducive to profitable thinking about the problems at hand.

Paradigms. A second strategy for thinking about politics is to develop self-consciousness about our use of paradigms. A paradigm is an overall view of things in terms of which particular experiences can be understood. Such a pattern helps us fit perceived facts into a coherent picture and provides basic rules whereby we draw inferences about our observations. If a few facts appear inconsistent with a paradigm they are merely regarded as anomalies, not as reasons for abandoning the paradigm. But too many awkward facts exert pressure to find a way of looking at things that handles observations more gracefully. A scientific revolution, or paradigm shift, may then occur. [Footnote 17] Ptolemy's earth-centered astronomy was a paradigm until the Copernican revolution replaced it. The Aristotelian paradigm in physics was displaced by the Newtonian system, itself overthrown by relativity theory in the twentieth century. Footnote 18

Paradigms are not just found in the physical sciences. Political observers must process their experiences; if they do not employ a conscious paradigm, they will use an unconscious one.

It may not matter whether people whose political actions we observe (votes, speeches, donations, expenditures, aggressions) understand their own paradigms. But as observers, it is important for us to be self-conscious about ours. Paradigms always incorporate assumptions. These may be incompatible with each other or with experience. It is impossible, however, to reject an assumption that we do not know we have made.

Some people claim we should abandon all "metaphysical" speculations, never assuming anything. Their advice cannot be followed. The only alternatives to conscious assumptions are unconscious ones. Mere awareness that we are assuming something is therefore no basis for rejecting a belief The physical sciences themselves rest upon assumptions not provable by scientific methods. Awareness of our assumptions can clarify our thought, help us to become more consistent, and enable us to abandon those ideas whose implications we are not prepared to accept.

Consistency. This brings us to a third strategy for thinking about politics: we should strive for consistent analysis. There are naturally many different ways to interpret any particular fact or limited area of experience. Each interpretation may be compatible with evidence about these limited areas. Nonvoting, for example, may be a sign of extreme alienation, hostility to the very foundations of a political system. But it might only mean that these people are not interested in politics.

When a senator votes against a bill, what does it mean? Does it mean he opposes the bill's stated objective ("helping the poor," for example) or does he doubt the bill will produce the intended results? Does he think the bill uses the wrong means to promoting its objectives, or is he voting against his own views because the bill is unpopular back home and he wants to be re-elected? Is he swapping his vote on this bill, which he somewhat favors, to get another senator's support on a more crucial bill? If we are considering a senator's single action, many conflicting interpretations can be put upon it.

It is harder to find a satisfying, consistent interpretation of a larger range of facts. The fewer facts we know, the more assumptions we must make in interpreting any one of them; the more assumptions, the more flexible our analysis and the easier to defend each of the conflicting interpretations. As we learn more facts, however, they become harder to account for. Explanations based on assumptions that conflict with other facts must now be ruled out, which leaves us with fewer possible explanations. For example, if the senator voting against the bill also strongly supported other bills aimed at the same objective, this tends to contradict explanations of his present actions based on the assumption he is hostile to the bill's goal.

Consistency in applying assumptions forces us to think about more than one thing at a time. We cannot just assume one thing for one purpose and the opposite thing for other purposes. Assumptions made for one purpose must be applied across the board, wherever they have implications. Any experience that appears to contradict any generalization is relevant.

If we want to assume that Earl Warren was a dedicated Communist in order to explain his behavior as Chief Justice, [Footnote 19] we must also assume that he was either a Communist while governor of California or became one after going on to the Supreme Court. If we find that Warren's record as governor is not that of a Communist, we must conclude that he was converted or that he never was a Communist at all. If we also want to assume that President Eisenhower was a Communist, as the John Birch Society founder charged, we then face a possible dilemma: If Ike was a Communist, why would he appoint a non-Communist as Chief Justice? The question can be answered, but this might require additional assumptions, some of which could conflict with other available facts.

Of course in political life principled, consistent analysis is not always prominent. A politician who can get what he wants by accusing opponents of mutually incompatible sins will not always opt for consistency. Nor will loudly proclaimed principles necessarily prevail when leaders decide they can get better results by violating them. President Thomas Jefferson, a strict constructionist who argued that government could do nothing not expressly authorized by the Constitution, disregarded this principle to buy the Louisiana ter ritory when the opportunity arose in 1 803. The principle, at best a dubious one, was perhaps best ignored; the Louisiana Purchase provided vast new horizons for American expansion. President Nixon imposed wage and price controls in 1971 after denouncing such controls for 20 years. Nixon's principle was probably sound and the action economically unwise, but he correctly saw that controls would be good politics.

Southern senators claiming principles that barred voting cloture to end a filibuster against civil rights legislation, supported shutdown of a liberal filibuster against renewing the draft during the Vietnam War. When Justice John Marshall Harlan (the elder)Footnote 20 issued his famous dissenting opinion that "our Constitution is colorblind" in the Plessy v. Ferguson case (1896), he became the hero of civil rights advocates. The Court's Plessy decision upholding laws requiring "separate but equal" facilities for black people was not swept away until the desegregation cases of the 1950s. By the late 1960s a law school casebook edited by civil rights enthusiasts deleted Harlan's "colorblind" remark-probably the most quoted line from any dissenting opinion in our judicial history. The previously favored principle of colorblindness was now an awkwardness for people urging racial balancing, busing, quotas, and other activities in which an individual's race cannot be ignored.

That political actions do not always show great concern for principled consistency may be disheartening. But this does not justify our being unprincipled in our thinking about politics. There is, presumably, some distinction between politics and political science, just as there is between crime and criminology.

THE PRESENT CONSTITUTIONAL PARADIGM

Americans tend to think about politics in terms of categories suggested by the Constitution. Our Constitution is thus not just a set of legal rules; it is also a paradigm. It is the basis of our thinking about government as well as the basis of our government. For example, from our youngest years we are taught to see a government composed of three branches: legislative, executive, and judicial. Wielding separated powers, these branches are said to constitute checks and balances upon each other, preventing any one part of government from running amuck.

Another major element of our constitutional paradigm is federalism, dividing powers and responsibilities between the central government and those of the various states. Our paradigm also places heavy emphasis on individual "rights," especially the right not to be deprived of "life, liberty, or property" without "due process of law." We will think about all of these things in due course. Our constitutional paradigm still has enough validity that no text on American government can omit chapters on the three branches. Here, these mandatory discussions will be found in Chapters 5, 7, and 8.

No doubt the present constitutional paradigm is vastly better than nothing. It provides a basic map of many governmental institutions, indicating important connections between them. It provides us with a reasonably sophisticated political vocabulary. Any person who understands key constitutional terms has a good foundation for thinking about politics. The Constitution is full of important terms and concepts, such as impeachment, treason, treaty, pardons, full faith and credit, freedom of speech, unreasonable searches, trial by jury, habeas corpus, ex post facto, and equal protection of the laws.

Inadequacies of the Present Constitutional Paradigm

New Elements in American Life. Many of today's institutions, never anticipated by the founding fathers, are not mentioned at all in the Constitution. The federal bureaucracy is a prime example. Only a few hundred people were employed by the early federal government. Even by 1871, only 53,000 civilians were on the payroll. [Footnote 21] Nobody at the 1787 convention could have foreseen the nearly three million federal civil servants by the 1980s. After all, our total population in 1789 was only about four million.

Civil Service. The Constitution naturally has little to say about the civil service. It does provide that the president "may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices" (Article II, Section 2.) And the same article decrees that the president shall "nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law." This last power is qualified, however, by a provision that "The Congress may by law vest the appointment of such inferior officers, as they think proper, in the president alone, in the courts of law, or in the heads of departments." Aside from a provision in Article IV that "all executive officers" (among others) "shall be bound by oath or affirmation to support this constitution," the Constitution says nothing else applying specifically to bureaucracy.

Corporations. The Constitution is also silent about big corporations. Some corporations did exist by 1787, but they were relatively small. Large corporations only emerged with nineteenth-century industrialization. The super-corporations now dominating our economic landscape--General Motors, General Electric, General Dynamics, Boeing, RCA, CBS--are recent developments. In 1787 typical Americans lived and worked on family farms or in small towns. Today, they work for huge corporations or for large ones, all gigantic by 1787 standards. Yet the Constitution does not even provide for federal chartering of corporations. Nearly all American corporations are chartered under state laws.

Commenting on this state of affairs, a prominent legal scholar has pointed out that:

The corporation . . . is a constitutional anomaly, a creature that cannot be understood in terms of three-hundred- year-old political theory from John Locke or even in terms of later theory from Thomas Jefferson. The classical economic theory of Adam Smith . . . is also inadequate. The same may be said for the underlying theory of the American Constitution, which assumes that only two entities--the individual natural person and government-- exist or are important. By making no provision for collective activity (the corporation, the trade union, the political party, among others) classical political theory is now outmoded. Footnote 22

Political Parties. As this passage notes, the Constitutionignores unions and political parties as well as corporations. The founding fathersknew about parties, which were already well-established in England, but they werelargely hostile to parties, regarding them as obstacles to good government. While The Federalist complains eloquently about the "mischiefs of faction," the Constitution itself simply ignores the subject. Of course, parties did not take the hint and vanish and have, indeed, strongly influenced American government. Perhaps most dramatically, party discipline has prevented the Electoral College from functioning as intended. Instead of deliberating independently, it simply reflects the majority vote for president in the respective states. Thus, no one can understand how the president is actually chosen merely by reading the Constitution.

Labor Unions. As for labor unions, neither the Constitution nor The Federalist mentions them at all. The founders would undoubtedly be just as amazed by the AFL-CIO, the UAW, and the Teamsters as by the giant corporations. Some of them might be horrified to learn that their concept of "checks and balances" may have encouraged enactment of pro-union laws as a way of controlling corporations. The founders might be amused to find that these unions, governmentally encouraged to limit concentrations of private power, later turned to "organizing" government employees.

Education and Ecology. Many other important things are not dealt with by the Constitution. Mass higher education was constitutionally unheralded. Not even Benjamin Franklin foresaw inventions like radio and TV or their impact on American politics. The founders would have been astounded to learn that President Kennedy would promise the moon and President Nixon would deliver it. Early America had low population densities, apparently limitless natural resources, and production based chiefly on human and animal labor. How could the founders have anticipated environmental pollution or energy problems?

Cities. Consider urbanization! In 1787 America had few cities, none of them big. Constitutional silence makes cities, except for Washington, D.C., entirely creatures of state government. They can be formed, dissolved, consolidated, etc., by simple action of their state legislature. The relation between states and cities is not analogous to that of federal government and states. It is not a federal relationship, but a strictly hierarchical, inferior-superior one. And the cities, according to a literal interpretation of the Constitution, have no direct dealings with the federal government.

Of course, this description of cities is now almost completely untrue. Vast federal grants go directly to city governments for specific purposes or through general "revenue-sharing" programs. Attached to these grants are many strings, federal requirements whose violation leads to a cut-off of future money. Congress has also begun enacting legislation directly restricting how cities as well as state governments can be organized. For example, many cities cannot redistrict councilman elections, or change from single-member districts to at-large elections, without prior consent from Washington. Footnote 23

Exceptions to the Constitutional Rule. As the problem of cities indicates, fitting actualities into the pattern suggested by the Constitution becomes ever more difficult. Even institutions actually provided for in the document do not function as it suggests.

In the Legislature. Congress, for example, is not the national legislature. It does enact some laws, but its members appear to devote most of their time, energy, and staff to other things. Members of Congress act as "ombudsmen," troubleshooters for baffled constituents unable to get satisfaction or sometimes even attention from various bureaucratic agencies. They campaign for re-election. They negotiate details of government spending: how much will be spent on highways, dams, military tanks, and where it will be spent. They hold hearings. They investigate. They go on trips (or "junkets," as they are called by critics).

While Congress, supposedly the legislature, spends most of its time otherwise, other agencies are busy legislating. The courts formulate legal rules as they decide their cases. The president issues executive orders having the force of law. Each month, bureaucratic agencies issue thousands of pages of new legal rules, all published in the voluminous Federal Register.

According to the constitutional paradigm, legislation is what the legislature does. People have therefore been reluctant to call the work of other agencies "legislation." To handle this problem, the expression "quasi-legislative" was invented when the bureaucracy was in its period of rapid growth. Likewise, "quasi-judicial" was devised to refer to adjudication by the independent regulatory agencies, which conflicted with the constitutional paradigm's implication that adjudication (employment of general rules to decide specific cases) was a function of the courts.

In the Judiciary. To say that courts are the judiciary no longer adequately describes American government. Likewise, courts are now doing things our constitutional paradigm would have us expect the executive or legislative branches to handle. Outstanding examples are those court decisions ordering money spent even though no legislature has appropriated it. [Footnote 24] When a federal court orders a state or local government to spend money, expectations deriving from the "federalism" component of our paradigm are confounded. Such orders directed against another branch of the federal government raise the issue of separation of powers, as well as offend the specific constitutional provision that "no money shall be drawn from the treasury, but in consequences of appropriations made by law" (Article 1, Section 9).

Expansion of the Constitutional Regulations: The Amendments. The paradigm suggested by our Constitution is inadequate also because judicial interpretations have gone far beyond its literal words. Nearly 200 years of interpretations have accumulated. The Supreme Court alone has written more than 400 volumes of decisions, and in the process the interpretations seem to have swallowed up the document. In many respects our actual Constitution is therefore just as "unwritten" as that of Great Britain. Today, to study American constitutional law, you do not read the Constitution; you read leading Supreme Court decisions.

On Church and State. For example, the Bill of Rights, taken literally, restricts only the central government. The First Amendment, setting the tone for the whole, begins "Congress shall make no law respecting an establishment of religion . . ." (emphasis added). The Bill of Rights was added to appease people who were skeptical of the new document, but whose support was needed to secure ratification. These skeptics feared that a stronger central government might abuse its powers. They were not worried about abuses by state governments, whose powers were certainly not increased by the new Constitution. Accordingly, the Bill of Rights restricted only the federal government.

When the Bill of Rights was ratified, some state governments still had established churches. No one thought that the First Amendment, with its prohibition against the establishment of a church by Congress, made it unconstitutional for a state legislature to do so. Since the 1930s, however, the Supreme Court has gradually expanded the meaning attributed to the Bill of Rights; today, most of its provisions are considered restrictions on state governments. Thus, by 1948, the Supreme Court had struck down an Illinois public school "released time for religious education" program as a violation of the Establishment Clause of the First Amendment. Footnote 25

On Capital Punishment. The capital punishment cases are other examples of judicial conclusions extracted from the literal Constitution only with considerable imagination. In 1972 the Supreme Court struck down all existing death penalty provisions, in spite of explicit constitutional provisions for capital punishment: In the Fifth Amendment, the Grand Jury Clause refers to a "capital crime"; the Double Jeopardy Clause, to being "twice put in jeopardy of life or limb," and the Due Process Clause, to the right not to be "deprived of life, liberty, or property, without due process of law" (emphasis added). Likewise, deprivations of life with due process of law are expressly contemplated by the Fourteenth Amendment. The Supreme Court justices, however, apparently based their decision in Furman V. Georgia [Footnote 26] on the haphazard and discriminatory way death sentences were imposed. Disproportionate numbers of those executed were poor or black, implying denial of the equal protection of the laws. When several states responded to this case by enacting mandatory death for certain crimes, however, the Court struck this down, too. Such laws, denying courts adequate chance to consider mitigating circumstances, were "cruel and unusual" and violated the Eighth Amendment. [Footnote 27] Still, some new capital punishment statutes were upheld. Footnote 28

Two justices, William Brennan and Thurgood Marshall, consistently voted against capital punishment in every case. They argued that death is inherently a "cruel and unusual" punishment, hence always a violation of the Eighth Amendment. Here, certainly, was doctrine that would have startled the founders, or anybody reading constitutional language in a straightforward way. The Eighth Amendment with its "cruel and unusual punishment" clause was enacted simultaneously with the Fifth, which contains several overt references to the death penalty. Why would the founders place restrictions on circumstances in which death could be imposed in one clause if they were banning it completely in another?

On Corporate Law. A third important example of our judicially- elaborated Constitution involves corporations. Corporations, important centers of economic production, inevitably litigate a lot. Courts have therefore had to decide to what extent constitutional rights are enjoyed by corporations as well as individuals. The basic legal question was whether a corporation is a "person" in the sense that the term is used in the Constitution. For example, is a corporation a "person" for purposes of the following Fifth Amendment provisions (emphasis added)?

Nor shall any person . . . be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law. . . .

For purposes of the Due Process and Equal Protection clauses, the courts do consider a corporation to be a person and, hence, protected. However for purposes of the Self-Incrimination Clause, as well as Privileges and Immunities clauses in Article IV and the Fourteenth Amendment, a corporation is not a person and, hence, is unprotected. Footnote 29

New World Experiences. A more basic cause of the inadequacy of our political paradigm is that the Constitution is not based on the principled analysis of human associations now possible. This is no reflection on the founders. These men were unusually well educated. They were avid readers, philosophically sophisticated and historically well versed. Their document has lasted longer than any other written constitution. But there has been a great deal of new experience with governments during the last 200 years. The world has changed from domination by monarchies to domination by republics. The twentieth century alone witnessed the fall of monarchies in Russia, Germany, Austria-Hungary, Turkey, China, and elsewhere. New patterns of government have emerged and, sometimes, disappeared again. We have the Nazis in Germany, the Fascists in Italy, the Peronists in Argentina, and the Communists in the U.S.S.R. and elsewhere. Governments peculiar to local conditions have developed in such countries as Japan, Mexico, India, and Thailand. Since the end of World War II in 1945, several large European colonial empires have disintegrated. Three world wars have already been fought in the twentieth century: World War I in Europe (1914-1918), World War II in Europe, the Far East, and the South Pacific (1939-1945), and World War III (1964-1975), the overt hostilities of which were largely conducted in Vietnam, Laos, and Cambodia.

Surely what has happened abroad since 1787 can teach us something about human associations; but much can also be gained by studying internal developments. Every foreign war has had domestic complications. The Civil War proved to be educational as well as bloody. We have tried many policies and programs-- the protective tariff, subsidies of waterways, the Homestead Act, the Land Grant Colleges Act, antitrust policy, conservation efforts--all leading, for example, to our national parks, labor policy, housing policy, welfare policy, race relations. Some of these experiments have been successful, others have been disasters. All provide food for thought. In addition, the United States has many governments. There are the fifty states and almost 80,000 lower units of government: cities, counties, education districts, mosquito control districts, library districts, irrigation districts, and so forth. Our country has been called a "laboratory of federalism" because each government is a center of experiments from which new knowledge may be distilled.

Should We Go Beyond the Present Constitution?

Increasing numbers of talented lawyers and academicians are trying to think methodically about the experience we are accumulating. This, too, is an asset which the founding fathers did not have. We have more shoulders to stand on than the founders did, including theirs; it is no reflection on them that we may be able to see a little further along the road. Therefore, we can say that not only is it possible to go beyond the paradigm of the present Constitution, but it is advisable. Under present conditions, misunderstandings which would have been harmless in former times have become harmful indeed. For example, we will see that the term "law" was used in the Constitution in at least three very different senses. Confusions in these three meanings were inconsequential as long as government bureaucracy was small, budgets were tiny, and there was little regulation of the national economy. We will see, however, that under present conditions a paradigm blurring or concealing the distinction between these three different meanings of "law" is highly mischievous. This is especially true when the body failing to make the distinction is the Supreme Court of the United States.

SUMMARY

As we have seen, complex societies and events can easily seem like unfathomable chaos. Complexity forces us to rely on language-symbols referring to categories of experience-in order to gather and process the countless individual observations necessary to put together an inferential picture of invisible government. Language, with its classification of merely similar things into identical categories, is part of a more general strategy of simplification which we can use in grappling with complexity. Another strategy is to think in terms of a "paradigm," an overall view of things in terms of which particular experiences can be understood. Still another strategy is to test ideas for consistency both with our other ideas and with experience.

The American Constitution is, among other things, a paradigm. It provides us with an overall view of our government, enabling us to put details into perspective and to see how they fit into the larger picture. It gives us the basic categories in terms of which we perceive and think about government. Unfortunately, our Constitution is now inadequate. Among the important elements that it does not put into place are some of the most important parts of today's political experience: bureaucracy, giant corporations, political parties, unions, mass higher education, and urbanization. When a paradigm conflicts this baldly with experience, it no longer serves its purpose. But it is an old political axiom that you cannot replace something with nothing. In the following chapters, we will be thinking together about politics from the perspectives suggested by a possible replacement for the present Constitutional paradigm.

QUESTIONS FOR DISCUSSION

• 1. Define an inference and give an example of one.

• 2. Who is the president of the United States at this moment? To what extent is your answer an inference?

• 3. Why can we not rely on personal observation for all of our knowledge about American politics?

• 4. As this chapter notes, many murder victims are criminals killed by other criminals trying to get or keep a piece of the action. If we assume that these victims are no loss to society, does it not follow that their murderers are performing a public service? How could we arrive at a contrary conclusion without rejecting the assumption?

• 5. It is easy enough to see why we should seek simplicity. But why should we also "distrust it"?

• 6. Pick an example from recent political events that can be interpreted more than one way, and explain briefly some of the different interpretations which can be placed upon it.

• 7. If that government is indeed best which governs least, why not anarchy?

• 8. What is the purpose for raising, in this text, the issue of Earl Warren's alleged membership in the Communist Party? Is your answer to this question an inference? Explain why or why not.

• 9. What are some differences between politics and political science?

• 10. What does it mean to say that the Constitution is a paradigm as well as a body of legal rules?

• 11. Considering that our Constitution does not mention political parties, corporations, and labor unions, how can it provide the basis for a government that works as well as ours does under modern conditions?

• 12. List a number of ways in which the world has changed since the year the Constitution was written. Also list some ways it has remained the same. Which list is more important? What are your criteria for determining importance? Do you think on the whole, since 1789, things have changed for the better, or for the worse? Why? How do you suppose future students, looking back on our time from the perspective of 200 years, will answer similar questions?

• 13. How do you react to the unorthodox assertion that the Vietnam involvement can be considered the third world war? Just because it is not presently fashionable to do so, is it wrong to classify it as such? What qualities must a war have to constitute a world war? Who has the right to decide?

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Footnotes

* Harold B. Acton, The Morals of Markets (London: Longman Group Ltd., 1971), p. 92.

1. Gilbert and Sullivan, Patience (1881).

2. Quoted in Forbes, November 15, 1975, p. 13.

3. See John Godfrey Saxe, "The Blind Men and the Elephant," in George Hornby (ed.), Poemsfor Children and Other People, New York: Crown Publishers, 1975, p. 52.

4. Walter Gellhom, "The Abuse of Occupational Licensing," 44 University of Chicago Law Review 6 (1976), p. 14.

5. New York Times, February 22, 1977.

6. New York Times, August 7, 1969.

7. Oregon Statesman, July 22, 1977.

8. Boston Globe, January 10, 1971.

9. Christian Science Monitor, August 15, 1977.

10. Toledo Blade, September 14, 1975.

11. H. F. Pringle, The Life and Times of William Howard Taft. New York: Farrar and Rinehart, 1939, Vol. 1, p. 381.

12. Adrian Daily Telegram, November 1, 1977.

13. Time, date uncertain.

14. Toledo Blade, May 15, 1977.

15. Toledo Blade, December 10, 1972.

16. Aristotle, Ethics. Baltimore: Penguin, 1953, pp. 65-66.

17. Thomas S. Kuhn, The Structure of Scientific Revolutions. Chicago: University of Chicago Press, 1962.

18. The current orthodoxy in physics has not gone unchallenged. See especially the works of Dewey B. Larson, whose work helped inspire the present text in many ways: The Structure of the Physical Universe (1959), The Case against the Nuclear Atom (1963), Beyond Newton (1964), New Light on Space and Time (1965), Quasars and Pulsars (1971), Nothing but Motion (1979). Portland, Oregon: North Pacific Publishers.

19. See John A. Stormer, None Dare Call It Treason. Florissant, Missouri. Liberty Bell Press, 1964.

20. John Marshall Harlan, who served on the Supreme Court from 1877 to 191 1. Not to be confused with his grandson with the same name, who served on the Supreme Court from 1955 to 1970.

21. Leonard D. White, The Republican Era. New York: Free Press, 1958, p. 2.

22. Arthur Selwyn Miller, The Supreme Court and American Capitalism. New York: Free Press, 1968, pp. 7-8.

23. See City of Richmond v. U.S., 422 U.S. 358 (1975).

24. Millikan v. Bradley (11) 433 U.S. 267 (1977).

25. McCollum v. Board of Education, 333 U.S. 203 (1948).

26. Furman v. Georgia, 408 U.S. 238 (1972).

27. Gregg v. Georgia, 428 U.S. 153 (1976).

28. Roberts v. Louisiana, 428 U.S. 325 (1977).

29. Santa Clara County v. S. Pac. RR Co., 118 U.S. 394 (1886); Ozborn v. Ozlin, 310 U.S. 53 (1940); B & 0 RR Co. v. L CC, 221 U.S. 612 (191 1).