Rebuild Constitutional Self-Government
America is unique in its dedication to the principles of liberty and constitutional government.
The United States stands for the proposition—proclaimed in the Declaration of Independence and embodied in the Constitution—that all are created equal and endowed by their Creator with unalienable rights to life, liberty, and the pursuit of happiness. Government exists to secure these God-given rights, deriving its just powers from the consent of the governed.
Our Constitution is intended to limit the power of government under the rule of law, creating a framework for a vibrant civil society in which opportunity flourishes. The principles of limited government and representative democracy are woven throughout the Constitution.
Today, however, the federal government has acquired an all but unquestioned dominance over many areas of American life, acting almost without constitutional limits and restricted only by expediency and political will. The breadth and depth of its rules mean that the federal government increasingly regulates more and more of our most basic activities, such as how much water is in our toilets and what kind of light bulbs we can buy.
To make matters worse, most of these expanded functions are carried out by various agencies, bureaus, and departments outside of the democratic process. Unshackled from the cumbersome constraints of elections and the separation of powers, bureaucrats operate on autopilot, largely unaffected by what happens in the political branches, free to enact and enforce regulations and even adjudicate their own rules.
To get government under control, refocus it on its core functions, and reinvigorate our democracy, we must strengthen the still-widespread public sentiment against an expanded reach of the state into a settled and enduring political opinion about the nature and purpose of constitutional government.
The administrative state is deeply entrenched, and unraveling today’s regulatory government will be extremely difficult. Nevertheless, and however far we have strayed from our principles, the objective remains clear: to restore limits on a government that is out of control and increasingly oblivious of constitutional restraint. We must recommit ourselves as a nation to the principles and policies of American constitutionalism.
- All elected officials have a duty to uphold the Constitution. Contrary to a common misconception, the responsibility to uphold the Constitution is not the exclusive prerogative of the Supreme Court, but rather of all government officials at both the state and federal levels. The Constitution clearly stipulates that “The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution.” Those who make, interpret, and enforce the law are required to follow the Constitution above ordinary legislation. For the elected branches of government to turn their authority over to the courts—or for Congress to give its legislative powers to bureaucrats—is an abdication of both constitutional responsibility and popular consent. Just as the Supreme Court must be faithful to the Constitution in interpreting the laws in cases before it, so Congress in making laws and the President in signing and then executing laws must do the same in the exercise of their functions.
- Congress is the key to cutting off the powers of bureaucrats. Although the legislative powers granted by the Constitution are vested in Congress, the majority of “laws” are actually promulgated by agencies and bureaucracies in the guise of “regulations” to implement laws. Key policy decisions that previously were the constitutional responsibility of elected legislators have effectively been delegated to executive branch administrators whose rules have the full force and effect of laws passed by Congress.
- It is the job of the President to faithfully execute the law. Indeed, the President takes a unique oath to “faithfully execute the Office of President of the United States” and “preserve, protect and defend the Constitution of the United States.” The President has unique and powerful responsibilities in our constitutional system as chief executive officer, head of state, and commander in chief, but those powers do not include the authority to make laws or to decide which laws to enforce and which to ignore.
- Judges must take the Constitution seriously. The rise of unlimited government is most familiar and most prominent in the form of judicial activism. The Founders thought the judiciary would be the “least dangerous branch,” but progressive judges have usurped the functions of the other two branches and transformed the courts into policymaking bodies that wield wide-ranging power. Judges should take the Constitution seriously and follow it faithfully. A constitutionalist judge interprets the Constitution and statutes as they are written, regardless of whether he or she personally approves of the laws or would prefer a different outcome in a particular case.
- Constitutional structure is crucial to limited government. The purpose of the United States Constitution is to secure the rights and liberties promised in the Declaration of Independence through an energetic national government of limited powers, focused on core functions. The scope of the federal government should be limited to the exercise of its core functions as assigned in the Constitution and to duties and responsibilities that are consistent with constitutional principles. A key mechanism for limiting government is the vertical separation of power provided by active states checking the federal government and competing with each other within the constitutional structure. Legitimate government functions that are not within the purview of the federal government should be lodged with state governments or localities.
- Law must not encroach on the vast realm of liberty. True self-government requires more than merely shifting bureaucratic authority to states that are themselves often bureaucratic and increasingly dependent on federal largesse. Vast areas of policymaking that are now usurped by the federal government must be returned to states but also to local communities, neighborhoods, families, and individual citizens. Responsibilities and activities that are not inherently governmental should remain the domain of private individuals, free markets, and civil society. Any government function that can also be found in the yellow pages should be a candidate for privatization.
The Way Forward
- Dismantle the administrative state. The Constitution creates three branches of government, yet administrative agencies and vast bureaucracies operate in practice as a headless fourth branch. Rather than micromanaging the bureaucracy through oversight, Congress should reassert its authority as the nation’s legislature by refusing to delegate its power to bureaucrats and taking responsibility for all the laws (and regulations) that govern us.
- Legislate clearly and openly. For too long, Congress has passed massive laws written behind closed doors and filled with arcane cross-references that most Members of Congress neither read nor understand. Each house of Congress should adopt a rule requiring the public posting of the text of each bill and major amendment not less than 72 hours before floor debate on that bill or amendment. In addition, for the sake of clarity and accountability, all language in proposed legislation should be accompanied by a document clearly marking all changes and deletions from existing law, as is now often done for committee-reported bills.
- Reverse the explosion of federal criminal law. Federal criminal law originally focused on inherently wrongful conduct that involved crimes against the national government or were interstate or international in scope: treason, murder, counterfeiting, and the like. Today, an unimaginably broad range of conduct is criminalized by scores of federal departments and agencies. The Congressional Research Service estimates these offenses to be in the “tens of thousands.” Congress must halt this federal overcriminalization rampage, especially laws that criminalize conduct of individuals who act without criminal intent or criminalize matters that should be left to the states.
- Repeal unconstitutional provisions. Rather than deferring to courts, Congress can and should repeal unconstitutional legislation enacted by previous Congresses, consider the constitutionality of pending bills, and assert constitutional limits on the size and scope of government. A good place to begin is with Obamacare and its vast delegations of power to unelected bureaucrats and its mandate requiring all Americans to maintain or buy health insurance.
- Pursue a path rather than a silver bullet. The restoration of constitutional government will not occur all at once or across the board. Nor will it result from one judicial decision, presidential order, or comprehensive piece of legislation. We must think strategically, defining and pursuing a realistic path that measurably reintroduces constitutional limits by focusing government on its primary obligations, restoring its responsibility and democratic accountability, and correcting its worst excesses. Those who are committed to the task of rebuilding limited constitutional government should not be distracted by illusory silver-bullet solutions that do not solve problems. Rather, they should focus on concrete reforms that move substantially toward constitutional government.
- Execute the law rather than make it up. The President takes an oath to preserve, protect and defend the Constitution. President Obama has taken actions disregarding the powers of the legislative branch in favor of administrative decision-making without, and often in spite of, congressional action. This violates the spirit—and potentially the letter—of the Constitution’s separation of legislative powers and the executive power. Presidents should defend and vigorously exert legitimate executive powers, but they should also recognize that those powers are not arbitrary or unlimited and are distinct from the legislative authority vested in Congress. And Congress should do its duty and take all appropriate actions as necessary to check executive overreach of its constitutional limits.
- Appoint and confirm constitutionally faithful judges. Rather than fulfilling their duty to interpret the Constitution and laws as they are written, judges often seek to impose their own policy preferences on the nation. Candidates and officeholders should promote robust debate regarding the importance of approving constitutionalist judges. Judicial appointments and confirmations are important opportunities for Presidents, nominees, and the Senate to advance and explain the proper role of judges and the legitimate parameters of constitutional interpretation. Most important, the President should appoint, and the Senate should use its advice and consent role to confirm, only constitutionally faithful judges.
- Encourage the dynamism of federalism. Structural federalism cannot be revived without a decided reversal of administrative centralization in the United States. Instead of performing so many functions poorly, Congress should focus on the limited set of functions intrinsic to the federal government’s responsibilities. Multiple federal programs should be returned to the states. The best way forward for Congress starts with practical but significant reforms that will change the federal–state dynamic in key policy matters such as health care, education, transportation, criminal law enforcement, and homeland security—all issues that in recent decades have increasingly become federal concerns but are better dealt with at the state and local levels of government. The states, meanwhile, should individually and in coordination challenge federal government policies in court and through legislative action and otherwise continue to serve as proving grounds for successful conservative innovation and policy implementation.
- Build a public consensus favoring limited government. One of the most important tasks of public officials is to articulate how the principles and limits of their constitutional responsibilities inform and guide their actions and the public-policy choices they make. Senators and Representatives should do this in committee deliberations and floor debates on proposed legislation; judges in their written opinions interpreting the real meaning of the Constitution in the cases before them; and Presidents in executive orders, in any statements upon signing legislation, and especially in official addresses. State and local officials should also articulate the principles of ordered liberty whenever appropriate. This will foster and build a new public understanding of and consensus favoring limited government, reforming and reshaping public policy to reflect a constitutional framework of limited government.