an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
In The Decline and Fall of the American Republic, Professor Ackerman worries that constitutional scholarship “remains focused narrowly on the judiciary and fails to appreciate that our most serious constitutional problems lie elsewhere.” In this blog, as a prelude to a forthcoming essay, I want to say something about precisely why a focus on the judiciary undermines our ability to recognize a trajectory of constitutional change in our structures and institutions and why certain features of historical and constitutional scholarship contribute to this failure.
I want to briefly recount the constitutional history of the Appalachian Regional Commission to demonstrate how our focus on the judiciary constrains constitutional thought to the question of a violation, and moreover, a violation of a specific constitutional provision. By operating in the framework of violations, we place the debate in a dichotomous framework: violation or no violation. Although higher court opinions are increasingly fractured and multifaceted, the question is framed fundamentally as yea or nay. As a result, even while our system is based on precedent, there is a limited awareness of trajectory.
Additionally, the question is always posed as whether a particular possibility is forbidden rather than whether it is advisable given prevailing directionalities of institutional power. The Appalachian Regional Commission’s constitutional story demonstrates how a focus on violations allows for what might be termed constitutional drift.
The Appalachian Regional Commission developed from John F. Kennedy’s campaign visit to West Virginia. Americans responded to poverty in the region—appalled by conditions that were viewed as inconsistent with the nation as a whole. Kennedy responded by forming his President’s Appalachian Regional Commission (PARC) to develop a plan to target poverty and inequality in the region.
Despite the multiplicity of impoverished rural areas across the nation, the PARC Report presented Appalachia as an area with “unusual problems.” In arguing for an Appalachian Program, PARC described Appalachia as a “region apart” that must be treated “as a unit” to successfully deal with socio-economic issues. The report proposed a regional commission to address Appalachian problems.
The Appalachian Regional Commission possesses a unique structure. The state governors or their appointed representatives govern the board. The president appoints one co-chairman as a federal representative. State governors elect the second co-chairman. Proposals may be initiated at the local level, but must be officially proposed by a state. No proposals can originate at the federal level.
In reading at the Johnson Library archives, I have discovered that the Johnson’s administration, which received the PARC report after Kennedy’s death, recoiled from their proposals. Harold Seidman wrote on Nov. 12, 1963 “We have most serious reservations about the proposal for an Appalachian development organization.” According to Seidman, “the constitutional questions raised by the proposal… are very serious.” Seidman explained that it was not possible to allow “state governors to participate in the direction and control of a federal agency.” Seidman described the ARC as not “responsive to presidential direction and control,” a problem compounded by the inability of the president “to remove any of the corporation’s directors.” Moreover, not only was the president unable to propose policy—since all proposals had to originate at the local level—an action “desired by the president” could be vetoed because “state representatives would have 50 percent of the vote.” Yet Seidman’s memo, like others that would follow it, suffered from one critical flaw: he couldn’t point to a particular constitutional provision or clause that was violated.
Although minority views in the Public Works Committee Hearings describe the ARC as “a new federally controlled regional octopus,” as the bill was debated, poverty overwhelmed any serious discussion of the ARC’s experimental structure. In addition, support for the bill was so substantial that the Johnson Administration felt constrained from voicing their constitutional concerns.
Barely two years later, Senator Randolph proposed substantial amendments. Attorneys in the Bureau of the Budget analyzed the amendments for Johnson, concluding that the amendments “would make major and highly undesirable changes,” and that “several provisions of his bill raise serious issues of policy and precedent—and may present constitutional questions.”
The ARC had been making recommendations that were then funneled through the relevant federal agency. With the new amendments, appropriations would be made to the President who would pass them on to the ARC, allowing the agency to develop its own programming with independent funding.
With no powerful opponents to Randolph’s bill, the House Public Works committee concluded that the amending bill “provides only minor changes in the structure of the Commission.” With respect to the original plan of having the ARC make recommendations to other federal agencies, the Public Works Committee found that “It was probably wise to adopt this system for a 2-year trial period,” but that “the considerations which prompted it are past.” Without questioning the constitutionality of such changes, the Committee simply concluded that “the Commission’s record of accomplishment during the 2 years of its existence has established clearly that it is capable of making sound decisions,” and therefore that it was appropriate for the amendments to provide that “the Commission’s judgments shall be final and not subject to further review by the Federal agencies carrying out such program[s].” These comments were deeply ironic given that three years earlier the Public Works Committee had justified the ARC Bill by saying that the ARC was “not an operating agency” precisely because it would have “no authority over other agencies.”
Again, the Johnson administration kept its constitutional concerns under wraps because “the legislation is bound to come out the way Senator Randolph is proposing it.”
Only one of the original constitutional safeguards remained after the 1967 amendments—the ARC funds were still appropriated to the President rather than to the agency directly.
In 1998, when the ARC was again amended, the last constitutional safeguard fell away with no debate when funds were “authorized to be appropriated to the Commission to carry out this Act.” A provision that was once added to allay fears of unconstitutional changes to our structures and institutions disappeared unnoticed.
The ARC’s constitutional history is, regrettably, more about inaction than action, more about disinterest and omission than debate and emotion. For the public, inattention is a product, in part, of modern media. Histories such as the ARC’s do not fit within sound bites. For scholars and historians, our pull to narrative history blinds us. We focus on human agency and social movements because such things are easier understood and easier published—perhaps more naturally compelling.
At the end of his presidency, Johnson reflected on how both executive power and the federal bureaucracy had rapidly expanded and how the ARC had been established with little concern for a new regional governance structure that broke the traditional federal-state dichotomy of our system. Johnson worried about the “nuts and bolts” of governance and, in fact, was deeply concerned about the new patterns of government that had developed during his time in office. Johnson understood at the end of his tenure that structural constitutional changes can take place under the radar, slowly and incrementally, in ways that eventually stress the original balance of powers. Most of all, Johnson was alarmed that substantial, structural constitutional change had occurred and that the American public had not even noticed. For final presidential words, what Johnson wanted was to exhort Americans to pay attention. “This is a self-governing society, and you too must be preoccupied with statecraft.” Johnson’s temporal word choice is critical. He asks Americans to be preoccupied with statecraft—not only to think deeply, but also continually.
While the ARC may not be powerful enough—economically or geographically—to wreck our traditional balances, I believe the ARC’s constitutional history is a strong cautionary tale that supports both Ackerman’s concern and Johnson’s call to preoccupation with statecraft. When we focus on the judiciary and narrow our constitutional questions to violations, we neglect a broader view of trajectories and drifts. When we focus on narrative history, we illuminate the successes and failures of powerful social movements without interrogating their potential for the unanticipated and unintentional: stealth constitutional change.
Jill Fraley is Assistant Professor of Law at Washington & Lee. She is currently completing a book on law & geography and the legal history of Appalachia. You can reach her by e-mail at jill.fraley at yale.edu Posted
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