5 Things Americans Should Appreciate a Little More
1. The Commerce Clause
No, not because of the Affordable Care Act (or not merely because of it). In 1964 Congress relied on powers given to it by Commerce Clause to pass Title II of the Civil Rights Act of 1964, making discrimination in public accommodations (a term that encompasses privately owned hotels) illegal. How? The Commerce Clause of the Constitution gives Congress the power to regulate commerce “among the several States”, i.e., the power to regulate interstate commerce. When the Civil Rights Act was challenged by the Heart of Atlanta Motel which refused to rent rooms to black patrons, the Supreme Court found that, being strategically located near two interstate highways and having 75% out-of-state clients, the hotel’s business clearly affected interstate commerce. Title II of the Civil Rights Act was upheld.
2. Bureaucracy
Yes, I’m serious. The word bureaucracy comes from bureau – a specialized administrative unit of a governmental department; and cracy – a suffix meaning a form of government. A government without subdivisions that carry out specific tasks and represent specific areas of expertise might look something like a dictatorship. Bureaucracy is supposed to make government more efficient – sort of like how assembly lines make manufacturing more efficient. It also provides a system of checks and balances within regulatory bodies. But it is a fine balance, and like anything, excessive or corrupt administrative units lead to unnecessary paperwork, red tape and inefficiency. The point is that bureaucracy itself is necessary, but the problems arise when there is lack of transparency.
3. Class Actions
An American legal innovation and an egalitarian one at that! Class actions are a great leveler – get a big enough group of people together, who have been injured in a similar-enough way, and the big corporation can be held accountable for its bad deeds. Imagine this: Big Oil has a ship that spills off the coast of Alaska; fish (and sea otters) die and Fisherman cannot make a living for two years; Fisherman cannot sue Big Oil company because the costs of litigation outweigh the benefits; Fisherman joins with 10,000 other fishermen and now they have enough money to take Big Oil to court. In addition, Big Oil learns a very big and expensive lesson.
4. Judicial Bias and Life Tenure
With lifelong appointments to the Supreme Court we give the Nine an enormous amount of power and freedom. The electorate doesn’t appoint the justices, can’t vote them out and isn’t represented. Moreover, in the gray areas of adjudication, it is the biases of the justices that, with or without their knowledge, drive the decisions. The Justices of course must base their decisions on precedent – on the historical record of Constitutional law before them – but there are as many ways of looking back as there are opinions sitting on the bench. Sound scary? Sure, but history has shown that most of the time, it works pretty well. By not being directly accountable to the electorate, the Supreme Court justices can push for progress ahead of popular opinion, like when schools were desegregated and the death penalty for children was banned. If the public disagrees, we still have the right to amend the Constitution or call on Congress to make new laws.
5.Sidewalks
Sidewalks are one of those things that nobody really appreciates until they need one and it isn’t there. Have you ever been to a city like Kathmandu, and you are walking down the street with your 60 year old mother and a taxi runs over her toes and she starts crying? Worse, have you ever been to a suburb of New York where the only people without cars are the domestic staff so nobody thinks to build a sidewalk? I dare you to walk to the grocery store. Towns without sidewalks are nutty – they send the message that “walking is bad, and you must pollute the environment with your car at all times, unless you are a maid, in which case we don’t mind if you put your life at risk.”
Well, I am a fan of 3 and 4 especially after having spent the bulk of my legal career as a class action attorney. 5 is, of course, great in theory but some creative thinking could make sidewalks even more environmentally friendly if alternative building materials were considered along with the impact to trees. But 1 and 2 are a bit like an Eric Clapton song. The good or ill of federal power really is in the way that you use it. The Civil Rights legislation was obviously a positive use of the commerce clause. But what happens when federal power expands and then the powers that be use that power in a less desirable fashion? I mean, I don’t think we can assume that federal power will always be used to positive ends or to advance the wishes of one half of the electorate. Everyone loves power until its used against them.