Haunting this year’s presidential contest is the sense that the U.S. government no longer belongs to the people and no longer represents them. And this uneasy feeling is not misplaced. It reflects the real state of affairs.
We have lost the government we learned about in civics class, with its democratic election of representatives to do the voters’ will in framing laws, which the president vows to execute faithfully, unless the Supreme Court rules them unconstitutional. That small government of limited powers that the Founders designed, hedged with checks and balances, hasn’t operated for a century. All its parts still have their old names and appear to be carrying out their old functions. But in fact, a new kind of government has grown up inside the old structure, like those parasites hatched in another organism that grow by eating up their host from within, until the adult creature bursts out of the host’s carcass. This transformation is not an evolution but a usurpation.
What has now largely displaced the Founders’ government is what’s called the Administrative State—a transformation premeditated by its main architect, Woodrow Wilson. The thin-skinned, self-righteous college-professor president, who thought himself enlightened far beyond the citizenry, dismissed the Declaration of Independence’s inalienable rights as so much outmoded “nonsense,” and he rejected the Founders’ clunky constitutional machinery as obsolete. (See “It’s Not Your Founding Fathers’ Republic Any More,” Summer 2014.) What a modern country needed, he said, was a “living constitution” that would keep pace with the fast-changing times by continual, Darwinian adaptation, as he called it, effected by federal courts acting as a permanent constitutional convention.
Modernity, Wilson thought, demanded efficient government by independent, nonpartisan, benevolent, hyper-educated experts, applying the latest scientific, economic, and sociological knowledge to industrial capitalism’s unprecedented problems, too complex for self-governing free citizens to solve. Accordingly, he got Congress to create executive-branch administrative agencies, such as the Federal Trade Commission, to do the job. During the Great Depression, President Franklin Roosevelt proliferated such agencies, from the National Labor Relations Board and the Federal Housing Administration to the Federal Communications Commission and the Securities and Exchange Commission, to put the New Deal into effect. Before they could do so, though, FDR had to scare the Supreme Court into stretching the Constitution’s Commerce Clause beyond recognition, putting the federal government in charge of all economic activity, not just interstate transactions. He also had to pressure the justices to allow Congress to delegate legislative power—which is, in effect, what the lawmakers did by setting up agencies with the power to make binding rules. The Constitution, of course, vests all legislative power in Congress, empowering it to make laws, not to make legislators.
But the Administrative State’s constitutional transgressions cut deeper still. If Congress can’t delegate its legislative powers, it certainly can’t delegate judicial powers, which the Constitution gives exclusively to the judiciary. Nevertheless, after these administrative agencies make rules like a legislature, they then exercise judicial authority like a court by prosecuting violations of their edicts and inflicting real criminal penalties, such as fines and cease-and-desist orders. As they perform all these functions, they also violate the principle of the separation of powers, which lies at the heart of our constitutional theory (senselessly curbing efficiency, Wilson thought), as well as the due process of law, for they trample the citizen’s Fifth Amendment right not to lose his property unless indicted by a grand jury and tried by a jury of his peers, and they search a citizen or a company’s private papers or premises, without bothering to get judge-issued subpoenas or search warrants based on probable cause, flouting the Fourth Amendment. They can issue waivers to their rules, so that the law is not the same for all citizens and companies but is instead an instrument of arbitrary power. FDR himself ruefully remarked that he had expanded a fourth branch of government that lacked constitutional legitimacy. Not only does it reincarnate the arbitrary power of the Stuarts’ tyrannical Star Chamber, but also it doesn’t even meet the minimal conditions of liberty that Magna Carta set forth 801 years ago.
Adding insult to injury, Wilson, his allies, and their current followers call themselves “progressives,” a fatuous boast implying that they are the embodiments and chosen instruments of the spirit of an ever-improving, irresistible future. In tune with the German idealist philosophy that Wilson and his circle studied, they claim to be marching toward an as-yet-unrealized goal of human perfection. But that perfection, the German philosophers believed, would look something like Prussia’s enlightened despotism. For Americans to think that it is progress to move from the Founders’ revolutionary achievement—a nation of free citizens, endowed with natural rights, living under laws that they themselves have made, pursuing their own vision of happiness in their own way and free to develop as fully as they can whatever talent or genius lies within them—to a regime in which individuals derive such rights as they have from a government superior to them is contemptible. How is a return to subjection an advance on freedom? No lover of liberty should ever call such left-wing statism “progressive.” In historical terms, this elevation of state power over individual freedom is not even “liberal” but quite the reverse.
Depressing as it is, you don’t want to miss a single word of it. And as long as that excerpt might seem, it barely scratches the surface; Magnet covers pretty much all the bases here, and his conclusion sparks what might be the most depressing thought of all:
As the Founders often cautioned, a self-governing republic doesn’t have a governing class. Part of America’s current predicament is that it now has such a class, and the American people are very angry about it.
Umm, well…not quite. If statistics are to be believed, something less than half of them are. The rest love it, and want more of it yet. The one thing we can be certain of is that, want more of it or not, they’re going to get it.