Where is the Constitution?

by Scott Johnson in Constitution, History, Supreme Court

Today is Constitution Day, as set in federal law. I didn’t know that — I didn’t know we had such a day — until reading the column in honor of the day by Professor Wilfred McClay, published here in the Oklahoman over the weekend. Professor James Ceaser also observes the day in “Celebrating Madison in Jefferson country.” As befits a historian, Professor McClay stepped back to explain the designation of September 17 as Constitution day in federal law in a 2011 USA Today column.
Like Professors McClay and Ceaser, I venerate our Constitution. Drawing on what Publius referred to as discoveries and improvements in “the new science of politics,” the founders created a frame of government designed to limit the powers of the government by the system of checks and balances with which we are all familiar, at least by reputation. For our freedom we are indebted to it.
The founders were profound students of history as well as political philosophy. As students of history, they warned against the tyranny of the majority. They knew that unconstrained majorities were the bane of liberty. Up through their time, history had shown all known democracies to be “incompatible with personal security or the rights of property.” They formulated the Constitution to protect the rights of citizens against the tyranny of the majority. Publius put it this way in Federalist 10:

The instability, injustice, and confusion introduced into the public councils, have, in truth, been the mortal diseases under which popular governments have everywhere perished; as they continue to be the favorite and fruitful topics from which the adversaries to liberty derive their most specious declamations.

The Founders had in mind the kind of man who presents himself as a tribune of the people — somebody who talks this way to the graduating students of Ohio State University.

Where is the Constitution today? By that I mean, where is the Constitution that established a government of limited powers? Has it survived? Or are calls for lamentation and reform in order? Neither Professor McClay nor Professor Ceaser pauses to consider the fate of the Constitution under the assault waged by progressives/liberals over the past 100 years.

The assault gave us the sixteenth (authorizing the income tax) and seventeenth (providing for the direct election of United States Senators) amendments to the Constitution. I’m inclined to think we would be better off without either. When it comes to the damage done to the original Constitution by the progressives, I would like to call for rollback versus containment (to use the old Cold War foreign policy terms).

But the real issue is the depredation of limited government by the administrative state. As Professor Jean Yarbrough stated here on Power Line recently:

One of the things that truly alarms me is how little our fellow citizens, even moderately well educated ones, know about the parallel universe of the bureaucratic world. The DeMuth and Callanan essays provide a primer in what is going on with the executive and the regulatory agencies.
We need an updated online primer in American government and political thought. We all learn about the separation of powers and federalism, but don’t understand that these restraints do not operate in the administrative universe. Indeed, the administrative state was designed to overcome these obstacles. Our mission should be to educate Americans on the real effects of this turn toward administrative regulations and rules.

Citing the Wall Street Journal column “What happens when a man takes on the feds” as well as stories on the harassment of Catherine Engelbrecht by the IRS reported by Jillian Kay Melchior (NRO) and Sharyl Attkisson (CBS), and you have, Professor Yarbrough held, “not soft despotism, but hidden and rather hard despotism for those who fall into the maw of the administrative state.”

Over at First Things Carl Scott expanded on Professor Yarbrough’s call for an updated primer in American government and political thought in “Our bullying bureaucracy and our need for a real science of American politics.” Please check it out.

How did we get here? The Supreme Court held off the coming of the administrative state in the New Deal for a while, but it quickly gave way. Since then the Court has more or less facilitated the growth of the monstrosity confronting us now.

In the world of respectable academic opinion, legal historian Edward White assessed the Supreme Court’s confrontation with the New Deal in The Constitution and the New Deal. Professor White consciously sought to challenge the conventional narrative involving the triumph of the New Deal in the face of the unreasonable obstinacy of the Court. Somewhat to his own surprise, after reviewing the record, White begged to disagree (somewhat gingerly) with the conventional narrative. Professor Richard Morgan took a look at what White had wrought in the Claremont Review of Books.

What area of our lives is insulated from the reach of the administrative state today? Think hard. As Professor Yarbrough suggests, we not only need to recall the founders’ new science of politics, we need to update it. We need to update it to understand the damage that has been done and to undo it.

 

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