September 17 is Constitution Day. This is our annual celebration of our frame of federal government. Every year, orators praise it, odes are written and pompoms are shaken. Most everyone remarks that it is the oldest written constitution in the world still in effect. But, although the ancient parchment is still in the National Archives, do we really live under it? If we don’t, how can we say it is the oldest written constitution in effect?
The delegates to the Constitutional Convention of 1787 in Philadelphia were the architects of an unique edifice. The blueprint emerged after a hot summer of debates and political compromises. The Constitution of the United States is that blueprint. In 1788 the architectural design was approved, although narrowly, by their clients, the people of the original states, acting through their elected delegates to state ratifying conventions. ( Only 11 approved it at first. The State of New York ratified it by only 3 votes. In 1789, when Washington took the oath of office as our first President and the first federal Congress convened, Rhode Island and North Carolina weren’t in the Union.)
The Constitution called for a federal government of limited, enumerated powers, which were divided among three branches. All legislative power “herein granted” (meaning that legislative power was limited to what the Constitution gave) was vested in Congress. The President was Commander in Chief of our military and naval forces and was obligated to “take Care that the Laws be faithfully executed.” The Supreme Court was given judicial power over cases arising under the Constitution, laws and treaties of the United States. As a further separation of powers, the Constitution left everything else to the states.
At the outset the federal government was the elegant structure promised by the words of the Constitution. It was like an early Federal Period building, simple yet functional. But, since then, generations of “progressive” political tenants have “modernized” it in many ways, without bothering to get approval from us, the people who own it, for changing the blueprint. They didn’t use the amendment process, they just did it. We the People neglected to chastise the tenants, our federal bureaucrats, judges and legislators.
Our Constitution is still here, though. That simple Federal Period house lies beneath the drop ceilings, Chinese drywall, linoleum, quicki-marts, betting parlors and other incongruous additions to the house made by Progressives, which have given us close to $20 trillion in debt and perhap $100 trillion in unfunded liabilities. The underlying, written text still has its original meaning, as understood by the people of the ratifying generation. The Constitution has been amended, but none of the amendments have changed the basic framework of a federal government of limited, enumerated powers. Some amendments, like the 14th, have given Congress power to enforce civil rights, but no amendment allowed the federal government to lash about doing good (or ill) as it sees fit.
In many cities, historic restoration projects have rejuvenated classic old structures and have revitalized communities. I propose that we embark on an historic restoration project for the Constitution of the United States.
Let’s park a dumpster outside the federal edifice. Then let’s strip down federal programs that don’t fit the federal “style” and toss them in the dumpster. How will we know them? They’re the ones that aren’t in the blueprint. That’s how restoration works.
The progressives also ripped out some fine features. They can be restored. For example, progressives didn’t like the doctrine of separation of powers. Congress is vested with legislative power. The federal courts are vested with judicial power. Proressives didn’t like the old oak pocket doors that kept the Executive Branch from entering at will into the rooms reserved for legislative and judicial power. So they tore them out. Their moderne open floor plan now allows bureaucrats in federal agencies to legislate and adjudicate.
The Supreme Court has been almost as useless a guardian of the Constitution’s separation of powers as the Vestal Virgins were of the Roman republican constitution. The Supreme Court has blessed delegations to bureaucrats of lawmaking and adjudicating authority that supposedly convey “intelligible principles,” even though most such sanctified statutes contain only unintelligible, unpredictable non-principles, like “fairness.”
Under current Supreme Court doctrine, you can be prosecuted and sent to jail for violating a regulation promulgated by an agency under a vague “delegation” of power by Congress. To make it worse, the federal courts will be deferential to the interpretation of the statute adopted by the very agency that is prosecuting you.
Agencies now commonly have prosecutorial, legislative and judicial powers. This is a combination that James Madison called “the very definition of tyranny.” The Securities Exchange Commission, for example, prefers to have charges decided by its own appointed administrative law judges, rather than by independent federal district court judges who have lifetime appointments. Why? Because the SEC wins more often before its own quasi-judges than before independent district court judges. Who would have thought it? Well, the Founders did, about 150 years before the federal judicial priesthood neglected to remember the point.
The Supreme Court rarely admits its mistakes. However, Congress has the power to correct many of them, as well as its own. Congress could re-separate powers. It could revoke agency rulemaking powers. It could enact a Sunset date for existing rules, which would expire unless reenacted by Congress itself. This would be the equivalent of putting the pocket doors back in.
This would not be impractical. The agency rulemaking process is now so protracted that requiring the rules to go through Congress would not likely be a greater delay, except insofar as Congress applies democratic brakes. Congress would have to educate itself on the details of legislation, to incorporate in laws what would otherwise be left to agency rulemaking, but why shouldn’t we expect our elected lawmakers to do so? When legislative powers were delegated decades ago, members of Congress didn’t have staffs or even office space. They only had their desks on the floors of the House and Senate. Members now have specialized committee staff in every program area, paralleling the rulemaking staffs of agencies. Let’s demand that Congress work harder. Let’s also demand that Congress take responsibility for the laws that govern us, instead of, as now, whining about the rules issued by agencies to which Congress surrendered its discretion.
Any member of Congress, and any citizen, worried about what a future chief executive will do with a “pen and a phone,” as President Obama remarked, should favor acting to restrain the unconstitutional powers of executive agencies. We should unite in this, without regard to who is or becomes President. In fact, even the President, if he or she cares about the Constitution more than personal power, should support this. The potential abuse of power, in either a left or right direction, should be curbed.
Once we’ve confined the federal bureaucracies to their Executive Branch butler’s pantry, what would be next? There’s a lot more that can be put on the restoration agenda. I’ll deal with it in future posts, but I welcome your ideas.
There would, of course, be some desirable federal programs that we’d like to keep, even though they don’t fit the blueprint. We would seek new homes for them, in state governments, in interstate compacts or in private efforts, or let them go. For federal programs that don’t fit the restoration plan, it would be something like a yard sale.
The metaphor of federal government as “this old house” can, of course, become strained. I wouldn’t want to live or work in a federal-era house that didn’t have electricity. But the Constitution allows Congress to enact measures that are “Necessary and Proper” (i.e., indispensable, but not forbidden) for exercising its enumerated powers.
[1 See, The Documentary History of the Ratification of the Constitution (Wisconsin Historical Society), 26 volumes to date. In the State of New York, for example, the Constitution was ratified by only 3 votes.