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.” 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.”
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.” Congress itself has not done much to recapture its rightful constitutional powers under the Constitution. As DeMuth states:
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.
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, 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. 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.”
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:
 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.
John Hendrickson is a Research Analyst with Public Interest Institute, Mount Pleasant, Iowa. Contact him at Public.Interest.Institute@LimitedGovernment.org.
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