Legal Ethics and Reform

Do Democratic Republics Need Unelected Decision Makers to Check their Elected Officials?

Alexis de Tocqueville remarked in his famous work, Democracy in America, that this county's experiment in democracy would probably work until the people realized they could simply vote themselves largesse from the treasury. Here he was referring to the process rampant today where the majority elect people who passes bills that give money or benefits to people way beyond the country's ability to pay.

Tocqueville visited American in the 1830's and his prediction has yet to come true; although the mounting governmental debt, with foreign buyers starting to balk at further purchases, is causing alarm. Nevertheless, in the face of this mounting debt, America's current crop of political leaders is forging ahead buying the votes of various voter groups with:

1) an expanded war in Afghanistan, to keep the hawks happy,

2) social security and Medicare systems with inflation escalators, to keep older citizens happy,

3) a universal health care system that adds benefits but doesn't control costs, to keep the poor and uninsured happy.

4) bail outs to protect grredy bankers from their own failures, to keep rich political contributors from the Big Apple happy,

5) additional arms and aid to Israel, to keep the Jewish vote happy, etc.


So what institution are positioned to save the country from the pandering policies of its elected officials? At the top, of the list is the Supreme Court. But other less notable un-elected institutions also act to curb the impulses of the elected branches, these are the federal reserve, certain parts of the executive branch staffed by long time civil servants, and the independent commissions (e.g. FCC, SEC, FTC, CPSC, CFTC, etc.) The existence of these non-elected entities allow the elected officials to pass laws designed to get votes, knowing full well that these enactments will be reigned in once the independent agencies, civil servants, or Supreme Court shapes the final product..

Then at the very lowest level, of this array of unelected people that shape policy and can frustrate the will of the people, is the paid lobbyist. The citizenry is oftentimes frustrated in its desires by the action of lobbyists who intervene at all levels of the process to make certain the desires of large citizen groups that are antithetical to the lobbyist's interest are fully or partly frustrated. If lobbyist fail to get their desire, they will identify the legislators in the system who stood up to them and try to get them removed, neutralized, or bought off somehow.

It could very well be true that the Supreme Court, the Federal Reserve, the independent agencies, civil servants in bowels of the departments, and the lobbyists have been responsible for keeping America from realizing Tocqueville's dire prediction. Of course, such a statement turns the basic assumptions about what America is and how it works on its head.

Nevertheless, assuming the forgoing is true, a closer look at these unelected actors is warranted:


The Supreme Court, which is by far the most powerful and independent of these unelected parts of government, was intended by the founders to be a weak branch of government deciding arcane matters of law (e.g. correcting a lower court that had made errors applying settled law, clarifying meaning of a law were two different readings were possible, and adjudicating where different interpretations were being followed in different parts of the country.) This expectation was set out quite clearly in Federalist #77. Of course, the founders never expected the Court to engage in a brazen power grab which it did in Marberry v. Madison in 1803. Since then the court has been finding Constitutional rights or Constitutional limitations by reading between the lines of the actual Constitution. Following this logic, the Court has been intervening into all aspects of American life making profound changes along the way; consider: abortions are now legal, blacks and whites were separated from each other and given separate but equal accommodations, later black children and white children were forced to attend the same schools, corporations are declared to have the same rights as living individuals, then corporations were allowed to dump mega bucks into election related television advertising attempting to buy the results they want, states can no longer regulate the sale of contraceptives, federal judges can order local authorities to raise taxes so the judge will have the money to remake the local community to his liking, local authorities can take property by eminent domain from one citizen and sell it to another private enity for a non-governmental purpose, etc. All this because of the Court's very expansive, very creating thinking. The point here is not to say that any of these is a good idea or a bad idea, it is to say that the Court can literally implement any reform it wants, it can stop any law it wants. Even if it acts in such a way as to anger 90 % of the people and thus causes the American people to force an amendment to the Constitution overturning the offending decision, the Court still retains the right to interrupt the new Amendment and therefore has the right to overturn that Amendment later. The point here is to show exactly how expansive the Court's powers are, and, by extension, how little power the people of this country have over it.


Independent agencies and the civil servants within the executive agencies are not as powerful as the Supreme Court, but they are a significant factor in curbing or muting the excesses of the elected branches. These entities perform this muting function through delay in implementation, by narrowing the scope of the laws and Presidential directives with "carefully designed" implementing regulations, and through tight control and slow disbursement of the money needed for implementation. These tactics are shaped by the ubiquitous herds lawyers that either run, or serve as staff, in the organizations that implement laws. Of course, every lawyer whether practicing on main street or advising a governmental agency in Washington is always keeping his eye on the Supreme Court from whence he expects to receive the final and best direction as to the real meaning of the law. So the Court's power is found directly in the opinions which it publishes, but its power is also manifested indirectly through every lawyer's projection of what the Court would "likely" decide if faced with the situation facing the lawyer.


Most lobbyists try to influence the legislative process before bills are passed, and they work to shape implementing regulations. They are prepared to initiate lawsuits designed to force the Federal Courts to look at and hopefully negate those aspects of the law that the lobbyists dislike. These organizations influence law making and regulation writing to obtain one or more of the following: get laws passed that reduce taxes or lift regulations for the members of the lobbying organizations, add restrictions or taxes that hold back their competitors, provide some special access to government contracts or waiver of some government regulation, etc. Many people who support or use lobbyists still feel they can provide for themselves if they are given " just" treatment and their "freedom". To such people a special consideration or a reduction in their taxes, or a reduction in the regulation they face is nothing more than a return of their freedom. They are a force countering this country's natural tendency to create more governmental programs that distribute more to the population as a whole. Lobbying activity in Washington, which one might call the steel tip of each lobbying organization's spear, is dominated by lawyers because law firms have greater flexibility with lobbying disclosures and because of lawyer-client secrecy protections that normal public relation firms can't use. Being the steel tip of the spear, lawyers tend to dictate to the organization what it can do legally. A non-lawyer may be president of the organization, but a lawyer will often become the de facto leader through his role as legal advisor.


The organizations mentioned above, including lobbying organizations, use lawyers extensively, or exclusively, to do their job of muting the American majority's willingness to rush headlong toward immediate self-gratification. Of course, the presence of such a high percentage of lawyers is in itself a concern. Lawyers are given very structured training; some have said they get - Marine Corps training for the mind. As advisers they are no doubt essential, but having them as the most prevalent decision makers, or exclusive decision makers, as found on the Supreme Court, is certainly not desirable. America is possessed of a lot of very capable, very thoughtful leaders who are not lawyers. These should be taking the lead in many areas. Churchill once said about economists "they should be on tap, but not on top". In America this quote might be applied to lawyers.

As an aside, it is important to note that there is a severe disconnect between how lawyers view themselves and how normal citizens view lawyers. This essay is not the place to develop these different views fully, but a comment or two is appropriate.

Lawyers feel they are entitled to great respect because they are generally intelligent and have mastered a massive array of material about the law - statute law, common law, case law, Constitutional Law, and processes used in equity, criminal, appellate, and civil courts. Lawyers see themselves as professional practitioners on a par with medical doctors. After all they have studied for years mastering complex material and mastering specialized skills such as brief writing and making a oral legal arguement in stressful situations.

Normal citizens view all this differently. They see a legal system which is terribly complex, very time consuming, costly, and oftentimes producing results which strike the average man, possess of normal moral sentiments, as wrong. People feel that doctors deal with the complexity of the human body, put there by God, whereas lawyers cling to man made complexity most of which strikes people as being unnecessary or worse as a positive barrier to the timely, accurate rendering of justice. As the law becomes more complex, with, for instance, "heightened scrutiny" being endlessly differentiated from "strict scrutiny", the divide between lawyers and normal people widens further.

Lawyers and judges have devised ways to by-pass complexity in the criminal justice system. Some of these are to be congratulated, some condemned. Special courts have been created for drug offenders, for juveniles, for child abuse matters, etc. On the less desirable side are the techneques used by prosecutors to compel guilty pleas; these include such things as asking for very high bail forcing the accused to sit in jail, charging very bad crimes in the hope of getting the accused to plead to a lesser charge, etc. Progress for good or ill has been made on the criminal side of system, but the civil side seems impervious to attempts to simplify and streamline the system. Judge James Dowd, a retired Missouri appellate court judge who has done great work setting up drug courts, when asked about the failure to reduce complexity on the civil side, remarked that civil litigators want to keep all their options open to implement delaying tactics. He implied that wealthy litigants who have weak cases utilize their wealth and the complexity of the civil justice system to force their more deserving opponents to quit or take small settlements.


With the forgoing in mind, some adjustment to the America's "non-elected" governmental processes need to be made so the excessive reliance on lawyers can be overcome and the demands of subsidarity might be met. Perhaps a nine person panel should be established to review every Supreme Court decision published and every rule and regulation promulgated in the Federal Register. This group would have the ability to mark any of these decisions, rules, or regulation as "unacceptable and must be re-written". They would briefly say why it was unacceptable. Their comments about why the reviewed item was unacceptable should be short and not precisely proscriptive. Comments such as:

+ "Meaning might be made clearer so average people could understand",

+ "Direction of this writing seems at odds with American values regarding ___________",

+ "This writing seems inconsistent with any plain reading of the law or constitution" consistancy should be sought,

+ "Writing seems consistent with earlier promulgations but the resulting thrust is innconsistent with American values regarding ___________, perhaps both current and former promulgation should be reconsidered", etc.

If this panel labeled something unacceptable, it would have to be redone.

By carefully controlling the composition of the panel two problems that have crept into American governence might be corrected: 1) the founders intended that state governments be important, relatively independent actors in the governing process. Since the 1860's the states have been shoved into a largely dependent, subservient role. 2) the excessive influence of lawyers both in elected and unelected decision making positions needs to be muted because lawyers tend to see the world in ways that strike the average American as "off kiliter". Accordingly this group would be composed of former state legislators who were not lawyers, had expressed a desire to serve on this panel, had never served in Washington, had been elected at least three times to a state legislative seat, and who were selected by random selection process to serve a single nine year term on this panel. All ex-state legislators who meet the criteria would be asked if they would like to be considered for the next random selection cycle. The country might be divided into 9 regions of roughly equal population with one panel member serving from each region. The obvious divisions are north east, south west, central, north central, south central, south east, west central, east central, and north west. The pay would be $20,000 per year less than the President. The panel would need a staff of perhaps 50 people. They should meet once every six weeks for three days at a city away from Washington. Otherwise they should do their review work from their usual hometowns.

A unit such as this would probably have saved America from such unfortunate decisions as Missouri v. Jenkins, Plessey v. Ferguson, and Roe v. Wade.

Some might question why should the panel be composed as proposed so a word or two about a few of the criteria for service on the panel is in order:

+ Multiple elections to a state legislative body - assures the person is aware of issues and has a sense of the fundamental values possessed by typical Americas,

+ currently not serving - means the person has time to perform the reviews required,

+ never having served in Washington - means their orientation is not tainted by exposure to the heavy lobbying so prevalent in Washington

+ service in a state Capital - means the person has sense of the importance the Founders assigned to state government with a knowledge of local differences and the desirability of local control, where possible.


The founders had a good idea of the power sharing that should prevail in the in the new country they fashioned. They saw the states playing a major role particularly in domestic affairs. They saw the federal government as important in foreign affairs. They saw the pecking order of the branches of government as being Congress followed by the President and far behind the Courts; and half of the Congress, the Senate, was to be named by State Legislatures. The plans of the founders have of course been turned largely upside down. The pecking order of the branches of government today are the Courts first, the Presidency second, and finally Congress which, being mostly fixated on re-election, is prepared to write the most general of laws letting unelected officials and judges fill in the details. The states have lost essentially all their power. Something has to be done to restore some of what the founders wanted.

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