The Rise & Decline of
Constitutional Government in America
by Thomas G. West and Douglas A. Jeffrey
A Publication of The Claremont Institute
This essay explains the principles of the American founding. It shows how those principles gave rise to constitutional government and a free society, and how freedom was extended to all Americans after the Civil War. It will also show how the Founders' principles were opposed by a new theory that arose in the Progressive Era; how that new theory finally came to dominate American politics in the 1960s; and how that theory has changed our government and our society, and threatens our liberty.
Implementing the Theories of Modern liberalism:
The Welfare State
The Framers of the Constitution designed American government to protect equal rights. A written Constitution, separation of powers, federalism and various public supports to morality were means to facilitate this goal. But as we have seen, over the past century, the goal of government has increasingly shifted to producing an equality of condition. Given this new goal, one would expect new government arrangements and practices to follow. This occurred, resulting in the new administrative or welfare state.
Constitutionalism Derailed: Institutions Transformed
As a matter of logic, the denial of human nature and rejection of natural rights undercut the very idea of constitutionalism-the idea enshrined in the American founding by the existence of a fundamental written law. The purpose of constitutionalism is to limit the ordinary operation of government in order to protect equal rights. It becomes an impediment when the government seeks to subvert equal rights in the pursuit of other ends. As Woodrow Wilson put it: "Living political constitutions must be Darwinian in structure and practice." They must be open to constant reinterpretation to allow government wide scope to accomplish its evolving goals. Limited government, the legacy of the Founders, must be transformed into unlimited government.
As a practical matter, the separation of powers, the cornerstone of the Framers' Constitution, has been effectively dismantled since the late 1960s.
Judiciary. Under the Framers' Constitution, the job of the courts was to take the laws passed by Congress and the fundamental law of the Constitution and apply them to particular cases in which one party claims that another has done wrong. In the words of Chief Justice John Marshall, they were to be "servants of the law." Under today's "living constitution," the courts have taken on a new role of participating actively in the formation of public policy, in effect giving themselves a legislative and executive role.
An example of legislating based on a pretense of interpreting the Constitution is Roe v. Wade, the 1973 Supreme Court decision striking down state laws restricting abortions. The justices clearly knew that there is not a right to abortion in the Constitution. They just did not care. As Justice William Brennan said in 1986, the Framers' Constitution belongs to a "world that is dead and gone," and therefore their "values" do not apply to our world. For this reason, most modern judges care little about the original meaning of the Constitution in their constitutional jurisprudence.
An example of judicial legislation based on a pretense of interpreting congressional law is our current policy regarding wetlands. Congress never passed any law giving government the authority to regulate wetlands. The relevant portion of the Clean Water Act simply required permits for discharging materials into the "navigable waters" of the United States. Yet federal courts have ruled that "navigable waters" include potholes and dry land that has certain kinds of "hydrophytic" plants growing on it.
Examples of courts executing the law are takeovers by federal judges of local school districts (to implement busing to achieve racial balance) and state prison systems (to give prisoners more pleasant conditions). In the former case, courts in effect had to throw out existing law, create new law, and then go on to execute the law that they declared contrary to the law of Congress. After all, the 1964 Civil Rights Act explicitly forbids courts "to issue any order seeking to achieve a racial balance in any school by requiring the transportation of pupils from one school to another."
Executive. Under the Framers' Constitution, we had a single executive-the president. Under today's "living constitution," we have multiple executives: the policy-makers in the various federal agencies. In many of these agencies the president is forbidden by law or by court order to control agency activity. Law also forbids him to fire most federal employees, even if they are working actively against the policies of his administration. Thus the president is no longer able to fulfill his constitutional duty to "take care that the laws be faithfully executed."
Legislative. Under the Framers' Constitution, Congress's role was to deliberate and pass general laws. Checks and balances aimed to keep it from encroaching on the powers of the executive. Under today's "living constitution," Congress has consolidated extensive control over the executive branch by numerous devices: It imposes reporting requirements on some agencies that are so frequent and detailed that they bring Congress into day-to-day decision-making. There is constant contact between congressmen and their staffers and sympathetic executive branch officials. Recalcitrant bureaucrats are threatened with reduced budgets or abolition of their jobs. Congress also uses committee reports to give detailed instructions-instructions that are not laws and therefore are neither voted on by Congress nor signed by the president-to executive agencies. At the extreme, Congress has initiated criminal investigations of executive officials whom Congress especially dislikes.
In short, the courts no longer adjudicate the law, but legislate based on personal beliefs. The President no longer executes the law, but finds his powers reduced by a bureaucracy beyond his control. The Congress still makes laws, but decreasingly deliberates and increasingly administers.
Under the Framers' Constitution, the national government was limited to areas of national concern. One could see this in practice by the fact that when bills were introduced in Congress, there was often debate about whether it fell into Congress's purview. The day-to-day administration of the laws remained decentralized. Under today's "living constitution," nothing is out of bounds to the national government. Administration of the day-to-day lives of Americans has become highly centralized. Roads, bridges, and schools are paid for in part by federal money and subject to federal regulation. Indeed, not a mile of sewer can be laid anywhere in America without federal permission. Running a major business, and sometimes even a small business, requires constant attention to what is going on in Washington, D.C. The authority of state and local governments has been much reduced; these governments often stand to the national government as claimants for federal dollars, in effect becoming tools of Washington, D.C.
Administrative centralization also renders it impossible for the government to act consistently with the rule of law, as opposed to ad hoc rule making, with exceptions for those who complain most effectively-typically major donors to politicians. Regulating the details of American life-who hires whom, who builds what, etc.-cannot be done with general rules. In other words, a return to the rule of law would require Congress to return vast areas of policy-making to the states and localities, and to private citizens.
Under the Framers' Constitution, moral education was publicly promoted and public decency upheld in numerous ways. Under today's "living constitution" this is much less the case. There are two reasons.
First, the citizen character necessary for constitutional government-combining the virtues of self-restraint, self-reliance, and liberty-loving self-assertiveness-is quite different from the character that gets along in the welfare state. The latter would be non-assertive about defending rights, and/or inclined to seek special treatment on the basis of needs or disabilities and an incapacity for self-reliance.
More deeply, the denial of human nature at the root of the "living constitution" has an amoral implication: absent a common human nature, there is no rational basis for an objective understanding of right and wrong. In this view, moral principles are simply prejudices and all "life styles" are equal. This explains the aversion of modern liberals toward any hint of government promotion of traditional morality or religion.
Four members of the Supreme Court recently gave voice to this side of liberalism as follows: "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." If one has the right to define the meaning of the universe and the meaning of life, one certainly must have the right to define right and wrong. This is the basis of the doctrine of "value relativism," which states that all moral judgments of right and wrong are "values," and all values are subjective and relative, nothing more than personal preferences.
Whatever else might be said about this understanding, it is completely opposite the view of Jefferson, the author of the Declaration of Independence, who once wrote that human beings "are inherently independent of all but moral law," and who believed that right and wrong were grounded in self evident truths about an unchanging human nature.
What about the requirement that government operate by the consent of the governed? In the Declaration, this followed logically from natural rights. Does the rejection of natural rights mean that government need no longer seek the consent of the governed?
Woodrow Wilson presented the Progressive form of government as more democratic than the Founders' constitutionalism. He and many subsequent liberal leaders assumed that the people would follow them in pursing their visions of a better society. This faith faltered in the late 1960s when it became clear that a "silent majority," as President Nixon called it, continued to believe in the older conception of rights, or at least to have serious reservations about the new. This is the majority that has continued to vote in every presidential election since 1968 for a candidate who believed, or said he believed, that the national government was too big and intrusive and needed cutting back.
In response, a new conception of unelected representation-one that enables needy or disabled groups to have special access to government-was developed to replace the older system. Rather than passing general laws, to be executed by the executive power and upheld by the courts, Congress began setting up federal agencies with broad responsibility-creating a safe environment, for instance, or preventing job discrimination.
these agencies, with input from congressmen and help from the courts, then began making ad hoc rules for different industries and individuals and different parts of the country. It is over this implementation process-what will be the specific rules and who will be exempted from these rules-that the real policy-making process occurs today. The process is extra-constitutional, and as such unaccountable-indeed largely invisible-to the American people. The main players are bureaucrats, congressmen, judges, and organized interest groups. It is these groups, rather than the voters, who are best represented in today's system of government.
On the cutting edge of liberal theory today, further assaults on the mechanics of consent are being proposed. Liberal constitutional law scholar Cass Sunstein, for instance, has suggested that in order to keep certain segments of society from becoming too powerful, government should start regulating and redistributing speech rights as it now does property rights. And President Clinton's original nominee to the top civil rights post in the U.S. Justice Department was well known for her support of the idea of doing away with the principle of one man-one vote in order to control the outcome of elections.