Comment: Give the People What They Want: The Failure of "Responsive" Lawmaking

Congress is unpopular. This is hardly a controversial statement. Dissatisfaction with the national legislature emanates from a widespread belief that its Members do not listen to the voices of the people who sent them to Washington, D.C. Indeed, only 33 percent of the American public believes that elected officials care about what the public thinks. This cynicism is rooted in the perception that Congress is out of touch with the American public. Implicit in this perception is the notion that constituents want a more responsive legislature. In spite of, and perhaps because of, this perception, there are signs that Congress is becoming increasingly "responsive."

This Comment argues that the legitimacy of the Congressional institution should not hinge on whether it responds to a critical mass of individual preferences registered daily in the form of phone calls, letters, and electronic mail – the features of what I will call "phone call democracy." The polls that indicate that Congress is distrusted because it fails to listen to constituent voices suggest that constituents link the legitimacy of the institution with the level of responsiveness it exhibits to individualized concerns. This Comment challenges that notion and argues that, rather than rehabilitating the legitimacy of a greatly distrusted institution, hyper-responsive politics will produce measures with unanticipated results. These results, in turn, will beget both a cycle of bad politics, in that they are unlikely to increase public confidence in Congress, and bad law, in that the measures are frequently ineffective and ill-considered.

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This Comment discusses two aspects of the phenomenon of phone call democracy: first, that it distorts the Framers’ conception of representative government; second, that it produces ill-conceived solutions. Section I of this Comment defines phone call democracy and ascribes a rise in contacts by individuals with Members of Congress. Section II places this trend in context by summarizing the debate surrounding the drafting of the Constitution over choosing a representative – rather than a directly democratic – legislature. Section III examines the relationship between the increase in direct democracy at the state level and the increased influence of phone call democracy at the national level. Section IV grounds these concepts by discussing the recently enacted Violent Crime Control and Law Enforcement Act of 1994 (the "Crime Bill"), and examines how phone call democracy did not promote sound policy. Finally, Section V applies two models of representation put forth by current scholars to the Congressional institution and concludes that the structure and procedural rules of the Congressional institution itself offer the best defense against the hyper-responsive lawmaking inherent in phone call democracy.

Comment: The Native American Graves Protection and Repatriation Act: Unresolved Issues Between Material Culture and Legal Definitions

By enacting the Native American Graves Protection and Repatriation Act (NAGPRA) in 1990, Congress mandated that museums and federal agencies re-evaluate the concept of possession with respect to their collections of Native American objects of material culture. Specifically, museums and federal agencies must identify human remains and funerary objects, sacred objects, and objects of cultural patrimony for possible repatriation to Native American communities throughout the United States, and they must expeditiously return such remains and objects upon the request of the appropriate Native American descendants or tribe.

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In short, NAGPRA addresses a deeply important set of cultural and political issues: the control and importance of material culture to the identities and histories of America’s native people.

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This Comment considers the particular difficulties and issues involved with distinguishing objects of art and other forms of material culture from sacred objects and objects of cultural patrimony, investigating the viability of the legal categories of sacredness and cultural patrimony. By drawing upon the histories of museums and the functions of their objects, it argues that the histories of collections and the ethics of their acquisition ought to play the central role in the evaluative processes of NAGPRA. These histories and ethics command a utility that lack the legal definitions [set forth in NAGPRA] lack. Thus, the purpose of this Comment is not to catalog examples of objects within NAGPRA’s legal definitions but rather to illustrate why historical inquiries, as a process, can inform the efforts of museums and Native American groups to arrive at workable and appropriate resolutions to their particular concerns about ethnographic and archaeological collections.