Aspects of America The United States of America is a large and vibrant country that is often touted as the best

example of a flourishing democracy, while two large, important entities that make up the American government are largely undemocratic. Both the judicial system and the bureaucratic system are essential functions of the American government that make decisions that directly affect the citizens of the United States. However, the judicial system as a whole is more open, fair, balanced, and largely politically independent, while the bureaucratic system is closed, onesided, and politically dependent. The bureaucracies are closer to the people than most any other system of government and are largely inefficient at handling the needs of the people for which the particular bureaucracy was created. The judicial system is also close to the people and is as equally complex as the bureaucratic system. However, the judicial system it is more effective in serving the people, although it can be a slow process that often has a comprehensible outcome. It is the fair, objective balance of the judicial system that I find is the best part of the American government, while I think the political dependence and inefficient nature of the bureaucracy is the most negative aspect of the American government. The American federal judicial system was established with the ratification that made the Constitution the supreme law of the land. The founders of the Constitution realized that disputes over the new supreme law as well as other laws would arise, even among rulings by different courts, and that there would be a need to establish a single Supreme Court. This court would have the final decision to settle such disputes. Thus, the third article of Constitution establishes the Supreme Court. The founders used the concept of English common law, which meant that past decisions would be used to help determine future ones (Bardes, Steffen, and Shelley 291). However, this does not mean that because a decision was handed down, all similar cases will

Lutes 2 receive the same decision. The founders also set up the court system to be available so that anyone with a grievance could have it settled in an unbiased system. To that end, federal judges are appointed for life by the president, and, adhering to the principles of separation of powers, the senate must approve the judicial appointees. Over time a tradition of senatorial courtesy has evolved. When a president nominates a federal judge in the same state as a senator who is a member of the presidents political party, that senator may exercise senatorial courtesy and veto the nomination (Bardes, Steffen, and Shelley 303). In addition, a senator of the opposite party of the president has enjoyed the privilege of senatorial courtesy (Bardes, Steffen, and Shelley 303). These guidelines have allowed the federal court system to remain unbiased and impartial in that the judges do not have render decisions that could affect their job. In other words, the position of a federal judge relies on professional accountability rather than political accountability. This is important because judicial decisions carry the same weight as law itself, and the decision sets the standard for how the law should be interpreted. These guidelines established by the founders, as well as ones that have evolved over time, have helped the judicial system stay fair, balanced, and unbiased. Expansion is essential to growth of business and countries alike; therefore it follows that the governing bodies must grow to maintain their effectiveness. However, nowhere in the Constitution did the founders give the Supreme Court the power of judicial review. It was not until the landmark case of Marbury v. Madison in 1803 that the concept of judicial review was established. It is in the decision of Marbury v. Madison that then Chief Justice John Marshall declared, "It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each"

Lutes 3 (Landmark Supreme Court Cases). It here Marshall establishes that the Constitution as being paramount to all other laws and establishes the judicial system as being independent with exclusive power over what is or is not Constitutional (Grossman). It is interesting to note that John Marshalls decision did two things: it established the legitimacy of the Supreme Court while preventing a feud between the two political parties at the time, and it established the power of precedent in a way that had far-reaching implications that evolved into wide acceptance. Although Marbury v. Madison established the concept of judicial review, it was not until 1887 that it was cited as a basis for judicial review. Judicial review was not used again until 1895, nearly a century after it had been decided (Grossman). Judicial review has withstood the test of time although it is largely a modern practice within the past hundred years and has become an essential part of the American government, as well as all democratic governments in the post World War II era (Grossman). The establishment of judicial review was, in many respects, the final tool needed to level the playing field among all three branches of government by making the Supreme Court independently powerful, while maintaining the checks and balances system envisioned by the founders. The court system is one aspect of the United States government that is close to the people and has or may have direct impact on their lives. There are two court systems in the United States, the federal court system and the state court system. Many states had formed their own court system prior to the ratification of the Constitution. The founders formed the Constitution in such a manner that it preserved state courts and created a federalist governmental structure. Federalism refers to a sharing of powers between the national government and the state governments, where the federal government is paramount to the state and the state has jurisdiction in all matters not reserved by the federal government. The federal and state

Lutes 4 governments use their own court systems to apply and interpret their own laws, but in areas of overlapping jurisdiction, the federal courts have superiority ("Understanding Federal and State Courts"). For instance, since the Constitution gives Congress authority to make laws concerning patents, the Federal Court of Appeals would have jurisdiction since it merged with the patent court and customs court in 1982 ("Federal Circuit About the Court"). Since the Constitution does not give the federal government authority in most matters concerning the regulation of the driving, a federal court would lack jurisdiction in a traffic case. This helps keep a balance between the state and federal laws. What good is a fair, balanced and independent system, if it is not available to all? The United States court system is available to all, and people who have a sufficient stake can bring a case to the court regardless of background. Such was the case for Dr. Robert Kearns, inventor of the intermittent windshield wiper and engineering professor at Wayne State University in Detroit in 1962 (Schudel). According to Matt Schudel of the Washington Post, [Dr. Kearns] got his idea [for the intermittent windshield wiper] on his wedding night in 1953, when a champagne cork struck him in the left eye, which eventually became blind. The blinking of his eye led him to wonder if he could make windshield wipers that worked the same way -- that would move at intervals instead of in a constant back-and-forth motion. Dr. Kearns applied for patents and demonstrated his invention to engineers at Ford Motor Company, who were initially interested, but later terminated all contact with Kearns (Schudel). Ford introduced the intermittent wiper in 1969, two years after Dr. Kearns had received his patent on it, and other automobile manufactures followed soon after (Schudel). This led Dr. Kearns to file lawsuits against Ford, Chrysler and twenty-four other automobile manufactures for patent infringement (Schudel). What followed was a twelve-year-long court battle in which Dr. Kearns fought to be recognized

Lutes 5 as the inventor of the intermittent windshield wiper and his right to maintain the right to manufacture it (Schudel). Over the twelve-year ordeal, Dr. Kearns became divorced as a result of strain of legal battle. He acted as his own lawyer and turned down large monetary offers to settle out of court without recognizing Dr. Kearns as the inventor of the intermittent wiper. In 1990, Dr. Kearns received vindication when a federal jury found that Ford, in fact, did infringe upon his patents and awarded him ten million dollars (Schudel). Dr Kearns, acting as his own attorney, won his lawsuit against Chrysler in a decision that Chrysler appealed all the way to the Supreme Court (Schudel). Dr Kearns proved the United States court system is available to anyone, and any individual who follows the procedures in place and has the motivation can persevere and receive vindication via court system. Another aspect of the government of the United States is that of the federal bureaucracy. Like the court system, the executive body of the government appoints people to top positions. The other positions are filled through a more traditional hiring process (Bardes, Steffen, and Shelley 274). There are different bureaucracies at different levels of government- federal, state, and local. Each bureaucracy at every level is set up to carry out a specific function of that government, which often times has a direct impact on the lives of its citizens. The laws passed by government officials are sometimes vague to avoid political ramifications by their constituents. Therefore bureaucracies are created to clearly define what the laws mean through the implementation of policies that have the rule of law. In other words, the bureaucracy acts as the administrative arm of the executive branch of government. For example, in 2002 President Bush signed the No Child Left Behind Act, which mandated standardized testing for school age children but did not specify the content of the tests or the specific consequences for schools not improving (President George W. Bush's Influence over Bureaucracy and Policy 108-114). The

Lutes 6 former was delegated to the state governments, while the latter was delegated to the Department of Education (President George W. Bush's Influence over Bureaucracy and Policy 108-114). Both the states and the Department of Education were left to define policies that would best accomplish the goals laid out in the No Child Left Behind Act. Politicians, like President Bush, who make the laws, are subject to being replaced. Therefore, a separate system needs to be put in place to administer the laws and provide stability, and that system is referred to as the bureaucracy. Like the courts, bureaucracy has grown in response to the growth of the government. However, unlike the courts, it relies on political accountability rather than professional accountability. Perhaps the one the most prominent example of this is in regard to the explosion of the Space Shuttle Challenger. Engineers for NASA, a bureaucracy itself, warned that the O-rings that acted as seals in the fuel tank could be adversely affected by cold temperature; however, the directors gave in to political pressure not to delay the launch because it was carrying the first schoolteacher into space (Balla and Gormley 12). Just seventy-three seconds after lift off, Challenger exploded, killing everyone on board. It was later determined that a defective O-ring was the reason (Balla and Gormley 13). The lack of proper accountability in bureaucratic systems leads to disorganization, mediocrity and, in this case death. The lack of proper accountability breeds inefficiency with bureaucratic systems. However, it is not the only reason for inefficiency; other reasons inclued lack of clear agenda, complex regulations, and a lack of delegation. David Osborne and Peter Plastrik point out examples of this inefficiency in their book Banishing Bureaucracy. In one instance, a town in Virginia is paying someone overtime to cut grass in cemeteries in October to use up money, while in another town during an emergency a manager, bought a sink below retail cost and was

Lutes 7 publicly flogged for not filling out the proper form first (Osborne and Plastrik 3-4). These egregious acts can go on because the bureaucratic system in which it is happening is a closed system, with little or no public oversight. However, laws have been passed to help bring more attention to these corrupt acts, such as the Freedom of Information Act in 1966 and the Government in the Sunshine Act in 1976 (Balla and Gormley 13). Many politicians have touted bureaucratic reform, but few have done anything to accomplish it. Bureaucracy is a necessary evil. However, it not something that can be easily fixed because it is large, complex, and above all necessary. While the laws passed in 1966 and 1976 have brought some bureaucratic atrocities to light and the Supreme Court, the court system is like a fire alarm: someone has to act before the court can respond (Balla and Gormley 86). Some popular ideas for fixing the bureaucratic system include: spending more money, spending less money, providing incentives to employees, making it more business like, and hiring better people (Osborne and Plastrik 13). The problem is that not one of these ideas will work by themselves, and combining them all will not solve the problem either. It is the careful combination of a couple of these ideas in the appropriate circumstances with a change in the culture of the bureaucracy that could drastically improve the American Bureaucracy (Osborne and Plastrik 56). The culture is the feeling the civil servants in the bureaucracy have when they go to work (Osborne and Plastrik 19). If you have someone collecting overtime by cutting grass in October and someone else getting humiliated for buying an economical sink in an emergency, that creates an imbalance which does not promote a healthy work environment (Osborne and Plastrik 26). However, by empowering the right people for the right jobs, providing incentives for performance and contracting out certain projects to companies that specialize in them would go a long way in making the bureaucratic system more efficient and customer friendly.

Lutes 8 Both the judicial system and the bureaucracy of the United States Government are the least democratic portions of the government. However, the manner in which they conduct themselves is vastly different. The judicial system conducts itself in a very restrictive way and has become a staple element of democracy. The one considerable power the court gave itself that of judicial review, has been used with care and restraint while maintaining an objective balance. Over time this has helped the court stay credible and worthy of the power of judicial review. However, the bureaucracy has shown itself to be corrupt, lacking balance and uniformity. This is a dangerous combination when making policies that have the effect of law and decisions that interpret how that policy is enforced. As a believer in small government and someone who has personally used the court for my own defense, I find the actions and integrity of the court to be most in line with my values. While I recognize the need for the bureaucratic system, I believe that it is a system in need of reform to make it effective, and it should be a system that exercises restraint like the courts. Just because one has the power does not mean one should use it.

Lutes 9 Works Cited

Balla, Steven J., and William T. Gormley Jr. Bureaucracy and Democracy: Accountability and Performance. Washington, D.C.: CQ Press, 2003. Print. Bardes, Barbara A., Steffen W. Schmidt, and Mack C. Shelley. Cengage Advantage Books: American Government and Politics Today, Brief Edition, 2008-2009 (Thomson Advantage Books). Belmont, CA: Wadsworth Publishing, 2008. Print. "Federal Circuit | About the Court." United States Court of Appeals for the Federal Circuit. N.p., n.d. Web. 17 Nov. 2009. <http://www.cafc.uscourts.gov/about.html>. Grossman, Joel B. "FindLaw's Writ - Grossman: The 200th Anniversary of Marbury v. Madison." FindLaw's Writ | Legal Commentary. N.p., n.d. Web. 13 Nov. 2009. <http://writ.news.findlaw.com/commentary/20030224_grossman.html#bio>. "Marbury v. Madison, Landmark Supreme Court Cases." Landmark Supreme Court Cases HOME. N.p., n.d. Web. 13 Nov. 2009. <http://www.landmarkcases.org/marbury/home.html>. "Marbury v. Madison." LII | LII / Legal Information Institute. N.p., n.d. Web. 13 Nov. 2009. <http://www4.law.cornell.edu/supct/html/historics/USSC_CR_0005_0137_ZS.html>. Osborne, David, and Peter Plastrik. Banishing Bureaucracy: The Five Strategies for Reinventing Government. New York: Addison Wesley Publishing Company, 1997. Print. Schudel, Matt. "Accomplished, Frustrated Inventor Dies (washingtonpost.com)." washingtonpost.com - nation, world, technology and Washington area news and headlines. N.p., n.d. Web. 17 Nov. 2009. <http://www.washingtonpost.com/wpdyn/articles/A54564-2005Feb25.html>. "Understanding Federal and State Courts." U.S. Courts | The Federal Judiciary. N.p., n.d. Web.

Lutes 10

13 Nov. 2009. <http://www.uscourts.gov/outreach/resources/fedstate_lessonplan.htm>. Watts, Tim J. Politics and the American judicial system: A bibliography (Public administration series--bibliography). Monticello, IL: Vance Bibliographies, 1990. Print. President George W. Bush's Influence over Bureaucracy and Policy: Extraordinary Times, Extraordinary Powers (The Evolving American Presidency). New York: Palgrave Macmillan, 2009. Print.