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July 2016 Brief: Volume 23, Number 20

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Our Dangerous Retreat From the Constitution

 

by John Hendrickson

 

 

Claes G. Ryn, a noted political philosopher at the Catholic University of America, wrote that “since the adoption of the Constitution American government and society have changed radically.”[1] In the aftermath of the ratification of the United States Constitution, there were numerous debates over the role and responsibility of the federal government. It also can be argued that the American Civil War represented a war over constitutional questions. But in order to examine how the nation arrived at our current time of constitutional drift and divide, we must examine the consequences of the Progressive Era.

 

The Progressive Era, whose origins began in the late 19th century when the United States was turning into an industrial and manufacturing power, was a political force and ideology which argued that the Constitution was a “living” document, that is, that the Constitution changes with the times and conditions of society. Progressives argued that a limited government was obsolete and “progress” should not be hindered by the enumerated powers of the Constitution.

 

Progressives also argued for a powerful presidency, believing that the executive branch of government needed more authority. Thus during the Progressive Era, the presidential administrations of Presidents Theodore Roosevelt and Woodrow Wilson became the symbol for a modern powerful presidency in American government. Over time, Congress as an institution has surrendered more power to the executive branch and the corresponding administrative agencies of the federal government. Christopher DeMuth, a Distinguished Fellow at the Hudson Institute, argues that the decline in the powers of Congress “has resulted from presidents, executive agencies, and courts seizing congressional prerogatives.”[2]

 

DeMuth provides recent examples of how President Barack Obama “has effectively rewritten important provisions of the Affordable Care Act and immigration law, while circumventing the Constitution’s requirement of Senate approval for senior executive appointments.”[3] Congress itself has not done much to recapture its rightful constitutional powers under the Constitution. As DeMuth states:

 

In recent years, Congress has even handed off its constitutional crown jewels — its exclusive powers, assigned in Article 1, Section 8 and 9, to determine federal taxing and spending. Several executive agencies now set and collect their own taxes or generate revenues in other ways, and spend the proceeds on themselves or on grant programs of their own devising, without congressional involvement.[4]

 

Senator Mike Lee (R-UT), along with other members of Congress, are attempting to reverse this trend with the Article 1 Project, which is working to reform Congress back to its appropriate role within the constitutional system.[5]

 

The Progressives were also successful at undermining federalism in the early 20th century with the passage of two amendments to the Constitution — the 16th Amendment (progressive income tax) and the 17th Amendment (direct election of U.S. Senators) — which transformed the relationship between the states and the federal government. As constitutional scholar Randy Barnett argues:

 

[Progressives] adopted the 16th and 17th Amendments, which formally amended the text to weaken our federalist structure by providing for a power in Congress to impose an income tax — enabling it to bribe and extort each state to do its bidding with the money taken from its own taxpayers — and for the direct election of Senators, depriving state legislatures of a check on federal power.[6]

 

Progressives, especially during President Franklin D. Roosevelt’s New Deal and President Lyndon B. Johnson’s Great Society, also expanded the federal government through a broad interpretation of the Constitution, especially the powers of Article 1, Sec 8, which lists the enumerated powers of Congress. It was Roosevelt’s New Deal that transformed American government, and a large part of this was the Supreme Court upholding the progressive interpretations of key elements of the Constitution. Judge Robert Bork described the New Deal as “an economic and governmental upheaval” in regard to its impact on government.[7] The New Deal, Bork argued, “stood for a sudden and enormous centralization of power in Washington over matters previously left to state governments or left in private hands.”[8]

 

As we can see, our retreat from the Constitution today has many consequences resulting in the decline of the United States. The solution to this problem will not be easy because it is both political and cultural. It is political in the sense that we need elected officials and members of the federal judiciary to defend the Constitution and the intent of the Founding Fathers, but in a cultural sense society must rediscover the values that shaped the Constitution. As Claes Ryn argues:

 

Many defenders of the old American Constitution seem to think that all that would be needed in order to save the Constitution would be to persuade Americans of the correct interpretation of the Framers’ intent. These ‘constitutionalists’ live in a world of abstractions, a dreamworld of their own…there is only one way to revive American constitutionalism, and that is for Americans, from leaders to people in general, to revive or freshly create something like the older type of morality and to start living very differently.[9]

 

Endnotes:

[1] Claes G. Ryn, “Power Without Limits: The Allure of Political Idealism and the Crumbling of American Constitutionalism,” Humanitas, Vol. xxvi, No, 1 and 2, 2013, National Humanities Institute, Bowie, Maryland, 2013, <http://www.nhinet.org/ryn26-1.pdf> accessed on June 10, 2016.
[2] Christopher DeMuth, “Reviving a Constitutional Congress,” Imprimis, Vol. 44, No. 11, November 2014, Hillsdale, Michigan, <https://imprimis.hillsdale.edu/reviving-a-constitutional-congress/> accessed on June 10, 2016
[3] Ibid.
[4] Ibid.
[5] Senator Mike Lee, “A1P: At a Glance,” Office of Senator Mike Lee, February 3, 2016, <http://www.lee.senate.gov/public/index.cfm/2016/2/a1p-at-a-glance> accessed on June 10, 2016.
[6] Randy E. Barnett, Our Republican Constitution: Securing the Liberty and Sovereignty of We the People, Broadside Books, New York, 2016, pp. 247-248.
[7] Robert H. Bork, The Tempting of America: The Political Seduction of the Law, The Free Press, New York, 1990, p. 53.
[8] Ibid.
[9] Ryn.

 

John Hendrickson is a Research Analyst with Public Interest Institute, Mount Pleasant, Iowa. Contact him at Public.Interest.Institute@LimitedGovernment.org.

 

Permission to reprint or copy in whole or part is granted, provided a version of this credit line is used:"Reprinted by permission from INSTITUTE BRIEF, a publication of Public Interest Institute." The views expressed in this publication are those of the author and not necessarily those of Public Interest Institute. They are brought to you in the interest of a better-informed citizenry.

   

 

 

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