The first question that offers itself is, whether the general form and aspect of the government be strictly republican. It is evident that no other form would be reconcilable with the genius of the people of America; with the fundamental principles of the Revolution; or with that honorable determination which animates every votary of freedom, to rest all our political experiments on the capacity of mankind for self-government. . . . The proposed Constitution . . . is, in strictness, neither a national nor a federal Constitution, but a composition of both. In its foundation it is federal, not national; in the sources from which the ordinary powers of the government are drawn, it is partly federal and partly national; in the operation of these powers, it is national, not federal; in the extent of them, again, it is federal, not national. . . .59
In Federalist 45 (January 26, 1788), Madison wrote:
The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State. The operations of the federal government will be most extensive and important in times of war and danger; those of the State governments, in times of peace and security. As the former periods will probably bear a small proportion to the latter, the State governments will here enjoy another advantage over the federal government. The more adequate, indeed, the federal powers may be rendered to the national defense, the less frequent will be those scenes of danger which might favor their ascendancy over the governments of the particular States. If the new Constitution be examined with accuracy and candor, it will be found that the change which it proposes consists much less in the addition of NEW POWERS to the Union, than in the invigoration of its ORIGINAL POWERS. The regulation of commerce, it is true, is a new power; but that seems to be an addition which few oppose, and from which no apprehensions are entertained. The powers relating to war and peace, armies and fleets, treaties and finance, with the other more considerable powers, are all vested in the existing Congress by the articles of Confederation. The proposed change does not enlarge these powers; it only substitutes a more effectual mode of administering them.60
In addition to the Constitution’s federalist structure, the Tenth Amendment was included among the initial amendments to the Constitution, and it emphasized further the significance of federalism. Again, it reads: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”61
Moreover, the spirit and character of the Constitution, its formulations and purposes, was a reflection of the nation’s personality. In his book The Roots of American Order (1974), Russell Kirk explained:
The true Constitution of any political state is not merely a piece of parchment, but rather a body of fundamental laws and customs that join together the various regions and classes and interests of a country, in a political pattern that is just. The English constitution is said to be “unwritten”: that is, there exists no single formal document which can be called the Constitution of the United Kingdom. Certain great permanent charters, statutes, and usages, and long-accepted political conventions make up that system of practices and principles, vaguely delimited but strong entrenched, which is British constitutional government. Similarly, even the American Republic possesses an underlying unwritten constitution—of which the written Constitution of the United States is an expression. The written Constitution has survived and has retained authority because it is in harmony with laws, customs, habits, and popular beliefs that existed before the Constitutional Convention met at Philadelphia—and which still work among Americans today. The written Constitution produced by the delegates from the several states drew upon the political experience of the colonies, upon their legacy of English law and institutions, upon the lessons of America under the Articles of Confederation, upon popular consensus about certain moral and social questions. Thus the Constitution was no abstract or utopian document, but a reflection and embodiment of political reality in America. Once ratified, the Constitution could obtain the willing compliance of most Americans because it set down formally and in practical fashion much of the “unwritten” constitution of American society.62
As discussed earlier, progressives find this entire governing formulation and its earlier foundational influences intolerable and therefore they have sought to eradicate and replace it. In one of his several manifestos, Constitutional Government in the United States (1908), Woodrow Wilson regurgitated Rousseau’s theory that government and society are akin to living beings with organs that cannot function separately and apart from each other, a frequent theme among progressives promoting the centralization and concentration of power. “It is difficult to describe any single part of a great governmental system without describing the whole of it. Governments are living things and operate as organic wholes. Moreover, governments have their natural evolution and are one thing in one age, another in another. The makers of the Constitution constructed the federal government upon a theory of checks and balances which was meant to limit the operation of each part and allow to no single part or organ of it a dominating force; but no government can be successfully conducted upon so mechanical of a theory.”63
Wilson, like other progressives of the past and present, contended that the American constitutional system is a relic, incompatible with a modern society. “The makers of our federal Constitution followed the scheme as they found it expounded by Montesquieu, followed it with genuine scientific enthusiasm. The admirable expositions of the Federalist read like thoughtful applications of Montesquieu to the political needs and circumstances of America. They are full of the theory of checks and balances. The President is balanced off against Congress, Congress against the President, and each against the courts. Our statesmen of the earlier generations quote no one so often as Montesquieu, and they quoted him always as a scientific standard in the field of politics. Politics is turned into mechanics under this touch. . . . The trouble with the theory is that government is not a machine, but a living thing. It falls, not under the theory of the universe, but under the theory of organic life.” Wilson added: “[Government] is modified by its environment, necessitated by its tasks, shaped to its functions by sheer pressure of life. No living thing can have its organs offset against each other as checks, and live. . . . This is not theory, but fact, and displays its force as fact, whatever theories may be thrown across its track. Living political constitutions must be Darwinian [evolutionary] in structure and practice.”64
However, the purpose of the Constitution is not to supplant or smother the civil society and in turn the free will of the individual with a powerful central government, but to safeguard them—that is, to control the rulers and uphold the society. There is nothing scientific or mechanical about it. The American founding was not an experiment in governmental extravagance but an effort to ensure that the individual can prosper in a just and stable environment. Of course, the Constitution can be modified by its amendment processes under Article V, which requires the consideration, input, and approval of a broad spectrum of the body politic. But for Wilson and the progressives, this is far too cumbersome. Law is useless if not used to empower the state and societal transformation, constitutional constraints and processes be damned.
Moreover, despite populist themes and claims of popular will, progressives prefer domination. Obviously, centralized governmental decision making provides social engineers and planners far greater latitude to act. Consequently, the power center for Wilson and the progressive is, unsurprisingly, the executive branch.
Wilson proclaimed: “Some of our Presidents have deliberately held themselves off from using the full power they might legitimately have used, because of conscientious scruples, because they were more theorists than statesmen. They have held to the strict literary theory of the Constitution . . . and have acted as if they thought that Pennsylvania Avenue should have been even longer than it is
; that there should be no intimate communication of any kind between the Capitol and the White House; that the President as a man was no more at liberty to lead the houses of Congress by persuasion than he was at liberty as President to dominate them by authority,—supposing that he had, what he has not, authority enough to dominate them. But the makers of the Constitution were not enacting Whig theory, they were not making laws with the expectation that, not the laws themselves, but their opinions, known by future historians to lie back of them, should govern the constitutional action of the country. They were statesmen, not pedants, and their laws are sufficient to keep us to the paths they set us upon. The President is at liberty, both in law and conscience, to be as big a man as he can. His capacity will set the limit; and if Congress be overborne by him, it will be no fault of the makers of the Constitution,—it will be from no lack of constitutional powers on its part, but only because the President has the nation behind him, and Congress has not.”65
Wilson’s disingenuousness is stark. He inverted the Constitution and the framers’ intent to advance a theory of government that would destroy what they established and gainsay the principles they repeatedly advocated. As is all too common among progressives, Wilson exploited the language of the Constitution, which he abhorred, to justify his ideological ends. Consequently, Wilson insisted that the president best represents the people, speaks for the people, and sets the political policy agenda for the nation. The president, under Wilson’s model, is a unitary voice of the government and the executive in charge of the administrative state. He can hold the rest of government accountable to the people, which, of course, is another perversion of republicanism. Unfortunately, there is little debate that this is a more accurate description of the current federal government than that which was actually established by the Constitution. Professors Bruce P. Frohnen and George W. Carey lamented that “presidents increasingly are claiming for themselves, and being accorded, the old, royal power to act outside the law so long as it is in some sense ‘in the public interest.’ ”66
Indeed, Congress, which was to be a coequal branch of the federal government, if not the most important, now occupies a lesser role than the others due to its own conferral of lawmaking authority to the executive branch’s administrative state or by inaction when the president seizes more legislative authority or unilaterally rules over the top of Congress. The evidence of executive legislating is overwhelming. In matters large and small, the administrative state rules. The constitutional structure has been significantly diminished. The Congressional Research Service recently reported that according to the Office of the Federal Registrar, “the number of final rules published each year [by the executive branch] is generally in the range of 2,500–4,500.”67 The Competitive Enterprise Institute determined that by December 30, 2016, in a record-setting Federal Register of 97,110 pages, agencies had issued 3,853 rules and regulations, 43 more than 2015 and eighteen times the number of laws (Public Laws) Congress passed during the year.68
The Unconstitutionality Index
Public Laws vs. Agency Rulemakings
Year
Final Rules
Public Laws
THE “INDEX”
2003
4148
198
21
2004
4101
299
14
2005
3975
161
25
2006
3178
321
12
2007
3595
188
19
2008
3830
285
13
2009
3503
125
28
2010
3573
217
16
2011
3807
81
47
2012
3708
127
29
2013
3659
72
51
2014
3554
224
16
2015
3410
115
30
2016
3853
211
18
Such administrative legislating also contravenes Montesquieu’s warning about the nature of lawmaking. Montesquieu explained that the promulgation of laws by republican governments must comport with the nature of the society and the government. Otherwise, a country risks decline or tyranny. He wrote: “Laws must relate to the nature and the principle of government that is established or that one wants to establish, whether those laws form it as do political laws, or maintain it, as do civil laws.”69 “There are two sorts of tyranny: a real one, which consists in the violence of the government, and one of opinion, which is felt when those who govern establish things that run counter to a nation’s way of thinking.”70 “The legislator is to follow the spirit of the nation when doing so is not contrary to the principles of the government, for we do nothing better than what we do freely and by following our national genius. If one gives a pedantic spirit to a nation naturally full of gaiety, the state will gain nothing, either at home or abroad. Let it do frivolous things seriously and serious things gaily.”71
Of course, the entire progressive enterprise is about zealously and endlessly reformulating, reconfiguring, reengineering, remaking, etc., the nature of society and the individual through a growing labyrinth of departments and agencies, and rules and decrees. There is relentless planning, programming, regulating, overseeing, etc., by the administrative state, often in contravention of the public will and without the consent of the people’s representatives. All is in a state of flux and perpetual motion except, of course, the fact of the progressive ideology and agenda, which finds permanence within the Leviathan it has created.
The iconic Scottish economist and philosopher Adam Smith (1723–1790), a contemporary of the American Founders and friend of Edmund Burke, smartly diagnosed the difference between the man of true public spirit and the man of arrogance and conceit, praising the former and condemning the latter. In his acclaimed essay The Theory of Moral Sentiments (1759), Smith stated:
The man whose public spirit is prompted altogether by humanity and benevolence, will respect the established powers and privileges even of individuals, and still more those of the great orders and societies, into which the state is divided. Though he should consider some of them as in some measure abusive, he will content himself with moderating, what he often cannot annihilate without great violence. When he cannot conquer the rooted prejudices of the people by reason and persuasion, he will not attempt to subdue them by force; but will religiously observe what, by Cicero, is justly called the divine maxim of Plato, never to use violence to his country no more than to his parents. He will accommodate, as well as he can, his public arrangements to the confirmed habits and prejudices of the people; and will remedy as well as he can, the inconveniencies which may flow from the want of those regulations which the people are averse to submit to. When he cannot establish the right, he will not disdain to ameliorate the wrong; but like Solon, when he cannot establish the best system of laws, he will endeavor to establish the best that the people can bear.
The man of system, on the contrary, is apt to be very wise in his own conceit; and is often so enamored with the supposed beauty of his own ideal plan of government, that he cannot suffer the smallest deviation from any part of it. He goes on to establish it completely and in all its parts, without any regard either to the great interests, or to the strong prejudices which may oppose it. He seems to imagine that he can arrange the different members of a great society with as much ease as the hand arranges the different pieces upon a chess-board. He does not consider that the pieces upon the chess-board have no other principle of motion besides that which the hand impresses upon them; but t
hat, in the great chess-board of human society, every single piece has a principle of motion of its own, altogether different from that which the legislature might choose to impress upon it. If those two principles coincide and act in the same direction, the game of human society will go on easily and harmoniously, and is very likely to be happy and successful. If they are opposite or different, the game will go on miserably, and the society must be at all times in the highest degree of disorder.
Some general, and even systematical, idea of the perfection of policy and law, may no doubt be necessary for directing the views of the statesman. But to insist upon establishing, and upon establishing all at once, and in spite of all opposition, everything which that idea may seem to require, must often be the highest degree of arrogance. It is to erect his own judgment into the supreme standard of right and wrong. It is to fancy himself the only wise and worthy man in the commonwealth, and that his fellow-citizens should accommodate themselves to him and not he to them. It is upon this account, that of all political speculators, sovereign princes are by far the most dangerous. This arrogance is perfectly familiar to them. They entertain no doubt of the immense superiority of their own judgment. When such imperial and royal reformers, therefore, condescend to contemplate the constitution of the country which is committed to their government, they seldom see anything so wrong in it as the obstructions which it may sometimes oppose to the execution of their own will. They hold in contempt the divine maxim of Plato, and consider the state as made for themselves, not themselves for the state. The great object of their reformation, therefore, is to remove those obstructions; to reduce the authority of the nobility; to take away the privileges of cities and provinces, and to render both the greatest individuals and the greatest orders of the state, as incapable of opposing their commands, as the weakest and most insignificant.72