Some years ago I was testifying before one of Congress’s seemingly countless subcommittees—if you can’t remember a congressman’s name, it’s usually safe to say “Mr. Chairman”—when one of the members got up to go to another hearing just as I was starting my remarks with, “Most of what Congress does today is unconstitutional.” The good man stopped dead in his tracks and, needing no microphone, thundered, “Mr. Pilon, did I hear you say that most of what we do up here is unconstitutional?” “You did sir,” I answered. “Then I’m staying for this hearing,” he replied. And he did.
That’s not the kind of thing most supplicants before Congress are inclined to say. They’re up there to ask for more government goods and services. As a guest said the other day on NPR (speaking of government goods and services): “Politics is about who gets what.” Today it is, alas. The result of this “free for all”—pause a moment on that locution—is a nation deeply divided over “who gets what.” How could it be otherwise? When we believe that the purpose of government is to solve our every problem, then all is politics. And eventually it all ends up in the courts, politicizing the nonpolitical branch in the process. Witness the recent battle over the Supreme Court nomination of Judge Brett Kavanaugh, driving no less than Justice Elena Kagan to remark that it makes the Court look like we’re “junior varsity politicians.”
To a significant extent we’re living today in a post-constitutional republic. The vast redistributive and regulatory powers Congress now indulges are nowhere among the “few and defined” constitutionally authorized powers that James Madison outlined in Federalist 45—he, the document’s principal author. They are ultra vires. But it doesn’t end there. For decades, Congress has not only been legislating beyond its authority but delegating ever more of those powers to the 450 or so executive branch agencies it has created (the exact number is unknown), despite the very first words of the Constitution after the Preamble: “All legislative Powers herein granted shall be vested in a Congress (emphasis added). Not some: all. The Framers wanted Congress to be accountable for its acts. Instead, Congress today passes broadly worded measures, then tells unaccountable agency bureaucrats to fill in the details. Most of the “law” that now binds us is made in those agencies as regulations, rules, guidance, and more. And when Congress fails to act on an issue a president thinks important, rule by executive order is said to be the answer. “I’ve got a pen and I’ve got a phone,” threatened President Obama, echoing Paul Begala, aide to President Clinton: “Stroke of the pen. Law of the land. Kinda cool.” Thus, the modern executive state, legislating. So much for the separation of powers.
And where have the courts been in all of this? When not themselves legislating, they’ve often played handmaiden to the political branches and the states. The Supreme Court has developed the deference doctrines that have enabled Congress to act beyond its authority, enabled it to delegate those legislative powers to the executive branch, and then enabled those agencies to act with little if any judicial oversight. Unleashed thus by less engaged courts, the political branches and the states have behaved as democracies have ever behaved—catering, at best, to majorities, at worst but far more common, to special interests more able to work the system to their advantage.
Nowhere is the outcome of those developments more starkly and disturbingly presented than in our federal debt, which today exceeds $21 trillion and is growing, having more than doubled over the past decade—and our unfunded liabilities vastly exceed that. In fewer than 20 years, our debt-to-GDP ratio has more than doubled, from 33 percent in 2000 to 78 percent today; it’s projected to reach 100 percent in 10 years and continue rising thereafter. Put simply, we’re demanding more than we’re willing to pay for, so we borrow. Our children and grandchildren will bear the costs of our current consumption, if they can. As history shows, this cannot go on
Federalist 51 teaches that constitutions are written to discipline not only rulers but the ruled, we the people. But we have to respect those limits. For much of our history we did, largely. Citizens, politicians, and judges alike took the Constitution and the rule of law it secured seriously. Not that there was any golden age—we’ve always had politics—but there was a time when it wasn’t all politics, when we better understood the proper place of politics within the rule of law. That changed during the Progressive Era. Here’s Woodrow Wilson, who found the document too constraining: “The Constitution was not made to fit us like a straitjacket. In its elasticity lies its chief greatness.” There’s a grain of truth in that, of course, but when we get to the New Deal, the implicit latitude would yield a Constitution the Founders would not recognize. To see that, let’s first outline the original vision, which begins, not surprisingly, with the Declaration of Independence.
The Original Vision
The Declaration, grounded in reason, sets forth universal truths: We’re born with equal rights to freedom. To secure our freedom, we create governments, their just powers derived from the consent of the governed. That vision was captured 11 years later in the Constitution’s Preamble: “We the People … do ordain and establish this Constitution.” All power rests initially, that is, with us. We create government. We give it its powers. The government doesn’t give us our rights. We already have them—our pre-existing natural rights.
That fundamental understanding of the moral, political, and legal order, together with their reading of history and their recent experience with majoritarian democracy in the states under the Articles of Confederation, led the Framers to create a government at once more powerful than its predecessor but also restrained in numerous ways. Principal among such restraints: Federalism, the division of powers between the federal and state governments, most left with the states; separated powers among the three branches, each defined functionally; a bicameral legislature, each chamber constituted differently; a unitary executive with veto power; an independent judiciary with the implicit power to check the political branches and, later, the states; and periodic elections to fill the offices provided for.
But the main way the Framers restrained Congress was by enumerating and hence limiting its powers. Captured in the document’s very first sentence, Congress was “herein granted” only 18 powers or ends, dealing mainly with objects of national concern. And when the Bill of Rights was added two years later, that restraint was made explicit in the Tenth Amendment, which makes it clear that if a power is not found in the document, it belongs to the states or to the people, not having been granted to either government. With the Ninth Amendment stating that we have both enumerated and countless unenumerated rights, we return, through those two concluding amendments, to the Declaration’s vision. Rights first; government second, to secure our rights.
The fundamental flaw, of course, was the document’s oblique recognition of slavery—the Faustian bargain that enabled unity among the states. The Framers hoped the institution would wither away in time. It didn’t. It took a civil war to end slavery and the ratification of the Civil War Amendments, which provided federal remedies against states violating the rights of their own citizens. With those amendments, and the later Nineteenth Amendment providing for women’s suffrage, the promise of the Declaration was at last incorporated into the Constitution.
In sum, the vision implicit in the amended Constitution was straightforward. Most of life was to be lived in the private sector. Private relationships were to be ordered by basic common law principles—liberty, property, and contract—secured mainly by state courts, plus a federal backstop through the Fourteenth Amendment. By contrast, recall the Obama campaign’s “Life of Julia,” the animated woman who turns to government at every stage of life. Earlier Americans wanted to be free, not dependent.
Progressives Rewrite the Constitution—Without Amending It
Progressives found that vision unsatisfying. Arising late in the 19th century, many from elite Northeastern universities, they were social engineers, drawing inspiration from political and social developments in Europe and from the new social sciences at home. Insensitive when not hostile to the power of markets to order human affairs justly and efficiently, they sought to address what they saw as social and economic problems less through litigation than through redistributive and regulatory legislation. Although many were enamored of the direct democracy the Founders feared, many others, paradoxically, called for widespread planning by government bureaucrats.
Perhaps no one put this new vision more starkly than Rexford Tugwell, one of the principal architects of Franklin Roosevelt’s New Deal: “Fundamental changes of attitude, new disciplines, revised legal structures, unaccustomed limitations on activity, are all necessary if we are to plan. This amounts, in fact, to the abandonment, finally, of laissez-faire. It amounts, practically, to the abolition of ‘business.’” This is the same Rexford Tugwell who, more than three decades later, would write, “To the extent that these new social virtues [i.e., New Deal policies] developed, they were tortured interpretations of a document [i.e., the Constitution] intended to prevent them.” They knew exactly what they were doing; they were turning the Constitution on its head.
Pushing mostly at the state level early in the 20th century, Progressives ran often into constitutional headwinds when judges, pointing to the document’s restraints, stood athwart their efforts. And that continued during President Roosevelt’s first term, when Progressives shifted their activism to the federal level. After several setbacks at the Supreme Court, Roosevelt unveiled his infamous Court-packing scheme following his landslide reelection in 1936. The scheme failed, but the famous “switch in time that saved nine” meant that the Court got the message.
Without a legitimating amendment, the Court began, in effect, to rewrite the Constitution, doing so in three main steps. In 1937, it eviscerated the enumerated powers doctrine, thus opening the floodgates to the modern redistributive and regulatory state. A year later, it bifurcated the Bill of Rights, conflating rights and values by distinguishing “fundamental” and “nonfundamental” rights and different levels of judicial review to match. A major effect was to reduce economic liberty to a second-class status. Finally, in 1943, the Court jettisoned the nondelegation doctrine, thus enabling Congress to delegate ever more of its powers to bureaucratic planners in the executive branch agencies. With that, the stage was set for government to grow and liberty to yield—for the emergence of the modern executive state.
Law as Policy, Not Principle
Notice, then, how each of those steps undermined the restraints outlined above. Most important was the demise of the enumerated powers doctrine, because everything else followed from that. Two Progressive Era amendments—the Sixteenth, providing for a federal income tax, and the Seventeenth, providing for the direct election of senators, both ratified in 1913—provided the wherewithal and the incentive to federalize power, but not until 1937 did the Court authorize that expansion. Once it did, federal programs overtook state programs, replacing our original competitive federalism with cooperative federalism, as I discussed in these pages in winter 2015.
But beyond the division of powers, those burgeoning federal programs took a toll on the separation of powers as well, as noted above. For as Congress created ever more executive branch agencies, it empowered them with legislative, executive, and judicial functions. Yet at the same time, with its creation of “independent” agencies, it undercut the appointment powers of the unitary executive, creating agencies that have become laws unto themselves.
Although authorized by the Court, those changes, except for the last, can rightly be thought of as having been imposed by the dominant forces in both political branches, for the Court was influenced (if not browbeaten) by Roosevelt’s threat to pack it with six new members. (He eventually did “pack” it as justices retired or died.) That political pressure helps to explain, if not justify, the Court’s actions, including its bifurcation of rights and levels of review, written from whole cloth. That move undercut a vast sea of liberty, clearing the way for the expansion of both federal and state programs. But most important, by instituting the idea of judicial deference to the political branches, the Court’s actions reversed the Founders’ presumption of liberty first, government second.
The crucial thing to note about this constitutional inversion, however, is that it’s a shift from judge-made to statutory law, from ordering human relationships mainly on the basis of fundamental moral principles—liberty, property, and contract—to ordering them through legislative will. That is a shift from principles, grounded in universal reason as old as humanity itself, to policies reflecting, again, the will of majorities, at best, special interests, more often. It is precisely what the Founders and Framers feared—law as will rather than reason. And it has brought us to today, with politics overwhelming all.
Our demand for ever more “free goods” has led to “entitlements” that are said to be “untouchable.” No wonder that for 20 years, Congress has failed to pass more than a third of the 12 bills that cover “discretionary” spending. Instead, it stumbles on with a hodgepodge of continuing resolutions and omnibus spending packages. When “we’re all in this together,” the politics that is set in motion allows for little else, for redistributive government is a negative-sum game. That’s what happens when constitutional restraints designed to prevent that kind of government are abandoned.
The Court can chip away at the edges of this problem, but only Congress, which created the problem, can directly address it. For that to happen, however, we ourselves must demand less from government, and that will take a cultural sea change. Such is the issue before us in this post-constitutional republic.
Roger Pilon, Ph.D., J.D. is Vice President for Legal Affairs and Founding Director of the Center for Constitutional Studies at the Cato Institute.