Letters from an Ohio Farmer

The American Conversation

To My Fellow Citizens:

It is Constitution Day again. Two-hundred-and-twenty-five years ago, on this day in 1787, the delegates to the Constitutional Convention in Independence Hall in Philadelphia signed the document which, when ratified by the people, would become the "supreme Law of the Land." This act was the culminating episode in the historic drama begun in the same hall 11 years earlier when the Declaration of Independence, appealing to the "Laws of Nature and of Nature's God," proclaimed to the world the experiment in self-government being inaugurated by the newly sovereign American people.  

In 1776, the American Revolutionaries had pledged their lives, fortunes, and sacred honor to what Lincoln would later call America's "philosophical cause." At the heart of that cause was the central idea from which all other American political ideas radiate, the self-evident truth that "all men are created equal."  These most American words contain within themselves the idea of limited self-government—the idea of political freedom itself: All men are equally endowed with certain unalienable natural rights, governments are instituted with the limited purpose of securing these rights, and the just powers of government are derived from the consent of the governed.

In 1787-88, in the greatest constitutional conversation the world has yet seen, the American Framers would author and the American people would authorize a Constitution intended to establish forms through which Americans might more perfectly achieve the ends set forth in 1776. The Constitution would be an instrument by which the sovereign consent of the American people might govern not willfully, but reasonably, as the cool and deliberate sense of the country.  Governing ourselves through the forms of the Constitution we would make ourselves a constitutional people, demonstrating to ourselves and to the world, as it had never been done, the capacity of mankind for self-government. 

One-hundred years ago, in his successful 1912 presidential campaign under the banner of the "New Freedom," Woodrow Wilson repudiated this American constitutionalism and the American Constitution itself as outmoded ideas that needed to be replaced by continually new ideas to fit continually new times. He repudiated the Founders' appeals to the laws of nature and to natural rights in favor of the laws of evolution, the laws of History and Progress. More than any other figure, Wilson became responsible for bringing directly into American political life the idea of a "living constitution," a constitution to complement a government whose powers must continually "evolve" and expand to meet continually evolving and ever-expanding needs.  Wilson's New Freedom was the first wave of progressivism in what would become in decisive respects a progressive century.

The New Freedom was soon followed by Franklin Roosevelt's New Deal, in which FDR, bringing up to date the famous first 10 amendments to the Constitution, proclaimed a "second Bill of Rights"—an "economic bill of rights"—that continues to set the progressive agenda to this day. These alleged "rights"—which include, among other desirable things, a well-paying job, recreation, a decent home, a good education, and adequate medial care—have in the eyes of progressives assumed constitutional status under the living constitution. They achieved the status of "entitlements," not through any amendment procedure authorized by the Constitution, but through the mysterious amendment process of history with a capital H and progress with a capital P. To secure such vast entitlements, with which we are allegedly endowed by History and Progress, government must become vast—it must become the "welfare state," which has replaced the limited constitutional government constructed by the Founders to secure our natural rights and the civil rights following from them. 

A generation after Roosevelt's New Deal, Lyndon Johnson's Great Society aimed not only to complete the New Deal, but to expand it immeasurably. "The Great Society," said LBJ, "is a place where every child can find knowledge to enrich his mind and to enlarge his talents . . . where leisure is a welcome chance to build and reflect . . . where the city of man serves not only the needs of the body and the demands of commerce but the desire for beauty and the hunger for community. . . ." LBJ's Great Society aimed not only to relieve all material needs, but to provide spiritual fulfillment to all Americans. To secure these hitherto unimaginable new entitlements would, of course, require government without limit. Limited constitutional government responsive to the cool and deliberate sense of the citizenry was buried under multiplying labyrinthine bureaucracies, staffed by supposed experts.

These three great waves of progressivism, each one offering new transformations of the Founders' Constitution, justified by endlessly evolving History and Progress, constitute an evolutionary revolution that has in the course of a century made limited constitutional government in America almost invisible. "Hope and Change" was intended as the next progressive wave. Barack Obama's promise just before his election in 2008 was perfectly in keeping with the spirit of his progressive predecessors: "We are five days away," he vowed, "from fundamentally transforming the United States of America." He wasted no time proving he meant exactly what he said.

The determined progressivism of the new President and his party sparked a widespread movement among American citizens to restore limited constitutional government in America. The historic 2010 elections brought into office a House of Representatives that insisted in unprecedented ways on respect for the Constitution. The constitutional seriousness of this movement and this Congress was greeted by progressive politicians and intellectuals with arrogant contempt. The arrogance came from the essential progressive article of faith—the belief that, above all, beliefs must go unquestioned—that history with a capital H and progress with a capital P are irrevocable, that "you can't turn back the clock."

But this could not be true, if the moral and political axioms of the American Revolution and Founding are true. Self-government and political freedom are not a wind-up clock. Repealing the President's disastrous progressive Patient Protection and Affordable Care Act (Obamacare) would be one effective way of proving this point, among innumerable other possibilities that present themselves to citizens and their representatives who are not frightened by the bogeyman of "History" and "Progress," and are determined and happy to think for themselves about what might be best for the country.  And so, a constitutional conversation began.

This is the kind of conversation the American people characteristically have at pivotal moments in our history—about the foundations, purposes, scope, and form of our government, about the rights and duties of citizens, and the responsibilities of their representatives. This series of essays modestly hopes to contribute to this urgently necessary American conversation.

Ohio Farmer

A Statesman in Congress

To the Members of the 112^th Congress:

This Friday marks the 160th anniversary of the death of Henry Clay (June 29, 1852). With only a few years excepted, Clay served in the House of Representatives and the Senate from 1803 until his death almost 50 years later. When he died, he was the most famous American of his day and received many, many eulogies. One of them came from a little-known, former one-term Congressman from Illinois named Abraham Lincoln, who eulogized Clay as "my beau ideal of a statesman."

In calling Clay a "statesman," Lincoln chose his words carefully, and he used a term we don't hear much anymore. But it's one we must recapture if we are going to understand the kind of people we need in public office to revitalize the American experiment in constitutional self-government.

To recapture the idea of the statesman, we must, among other things, recall how to distinguish it from the idea of the "leader" bequeathed to us by the Progressive Movement over a century ago. "Leader" is an old word with a respectable heritage—Thomas Jefferson referred to George Washington, for example, as "our great leader."  But the Progressives, beginning with Woodrow Wilson, poured new wine into this old bottle, and our public discourse has been drinking this Progressive vintage ever since.

Progressives who talk about "leadership" also talk about "vision."  They mean that a leader somehow must have a vision, a vision of the future into which he will lead his followers. A progressive leader moves people away from where they are toward some new goal divined by the leader—actually, toward goals that must constantly be renewed as we make endless "progress" into an always receding future. To lead the country into the progressive future requires leading it away from the supposedly outmoded goals, principles, and institutions of the American Founding.

The statesmanship of Clay (and Lincoln after him) was guided by the goals set out in the Declaration of Independence and the Constitution: to protect the "unalienable" rights of every individual to "life, liberty, and pursuit of happiness"; and "to establish justice, ensure domestic tranquility, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity."  A statesmanlike pursuit of these goals requires "vision," too, but vision of a sort very different from the progressive variety.

Statesmanlike vision is part of the virtue that Aristotle called prudence. Prudence does not mean "caution"; it means knowing what the right goals are and seeing how to move toward them in the particular circumstances that you face. The prudent statesman has great political vision, like a great quarterback who can see the whole field and make adjustments at the line of scrimmage. Having that kind of larger outlook can be hard in Congress, where there are so many particular interests and passions always trying to narrow your view. But, as Lincoln said, Henry Clay had that broader statesmanlike perspective: "Whatever Mr. Clay did, he did for the whole country. In the construction of his measures he ever carefully surveyed every part of the field, and duly weighed every conflicting interest."

The right kind of compromise is often part of the statesman's prudence. On at least three occasions (the last in 1850), Henry Clay cobbled together a deal in Congress that held a shaky country together. For this he earned the title "The Great Compromiser"—not because he gave in on his fundamental principles but because his compromises preserved the Union and kept the spark of liberty alive. His deals had their critics, and some of their criticism is not off the mark. But Clay was willing to make imperfect compromises because he knew that in politics consequences matter. It's not enough simply to have good intentions: the right action is also the one that has the best possible results. The statesman's compromise is one that, without violating the larger principles at stake, gets as much good as possible out of imperfect circumstances.

To achieve what Clay achieved in his long career required qualities that set him apart from his sometimes more seemingly successful political competitors. As Lincoln said:

Even those of both political parties who have been preferred to him for the highest office, have run far briefer courses than he, and left him, still shining high in the heavens of the political world. Jackson, Van Buren, Harrison, Polk, and Taylor, all rose after, and set long before him. The spell—the long enduring spell—with which the souls of men were bound to him, is a miracle. Who can compass it? It is probably true he owed his pre-eminence to no one quality, but to a fortunate combination of several. He was surpassingly eloquent; but many eloquent men fail utterly; and they are not, as a class, generally successful. His judgment was excellent; but many men of good judgment, live and die unnoticed. His will was indomitable; but this quality often secures to its owner nothing better than a character for useless obstinacy. These then were Mr. Clay's leading qualities. No one of them is very uncommon; but all taken together are rarely combined in a single individual; and this is probably the reason why such men as Henry Clay are so rare in the world.

Statesmen like Henry Clay are rare, but sometimes our Republic needs them. They don't try to lead us to a new political ideal; they help us see how to return to the principles of our Founding and Constitution. They know that the people are supposed to lead themselves by adhering to the Constitution they set up, not by following a leader as he envisions the next goal revealed to him by the always progressing "living constitution." In helping to keep our Founding principles alive in the minds of the American people, they render a noble and glorious service both to our country and to all mankind.

They come to "belong to the ages," as someone said less than a generation later of the little-known Congressman who once eulogized Henry Clay.

Ohio Farmer

 

Constitutional Letter and Constitutional Spirit

To the Members of the 112^th Congress:

From my first letter, I have spoken of the need for attention to the Constitution if we are to continue to enjoy the blessings of limited government.  It was gratifying, then, to hear the Attorney General say in a recent speech that "our actions must always be grounded on the bedrock of the Constitution." 

The particular action the Attorney General was referring to was the execution of an American citizen without trial, solely on the order of the President of the United States.  On the face of it, nothing could seem less constitutional or legal.  The Constitution is the framework, the set of rules, that prescribes what the government may legitimately do in a regime dedicated to securing the rights of life, liberty, and the pursuit of happiness for its citizens.  These rights exist before and outside the Constitution; the Constitution is meant to serve and preserve them.  We never cede them to the government and we cannot be deprived of them without what the Constitution calls due process, which includes trial by jury. 

How then could the Attorney General claim that it was constitutional for the President to authorize the execution of an American without trial?  I have neglected to mention that the American executed was a terrorist, an American citizen "intent on murdering Americans" and taking a leading role in plotting such murders, as the Attorney General put it.  Moreover, the citizen carried on this plotting in places where it was not feasible to capture him for trial.  In such cases, when the threat to Americans is imminent, the courts have ruled that the normal procedures of due process do not apply.  In this case, "after a thorough and careful review," the President authorized the execution.  According to the Attorney General, citing Supreme Court decisions, this review met the constitutional requirement for due process, and such review will pass constitutional muster in other similar cases involving American citizens.

But how do we know that the American was a terrorist intent on murdering Americans?  The executive decided he was.  The executive branch acted as judge, jury, and executioner.  It thus exercised the powers of the judicial, as well as the executive branch.  A fundamental tenet of our Constitution is that limiting the power of the government to protect the rights of citizens requires separating the powers of government.  In grounding executive action on Court rulings, the Attorney General ignored the spirit of the Constitution.

What evidence did the executive rely on to order the execution of an American citizen?  It relied on intelligence, which includes what a court would call hearsay and would not allow in a trial.  We also know that intelligence may be wrong.  Was it wrong in the case the Attorney General refers to?  We do not know.  Nor will we know in future cases because intelligence is secret.  Not only is the Attorney General advocating a process that nullifies the separation of powers, he is advocating a secret process that defies our tradition of open trials.

The Attorney General assures us that we should not be concerned.  The executive branch orders executions only under "robust oversight."  Congress provides the oversight, "in keeping with the law and our constitutional system of checks and balances."  The Attorney General's words at this point in his speech are artful.  He says that the Executive informs the appropriate members of Congress about the legal framework for its execution of citizens.   Some members of Congress are told, apparently, only of the justification of targeting in general, not of the evidence that justifies targeting in any particular case.  This would be similar to a judge explaining to a jury what the law against murder means without allowing the jury to hear any of the evidence in the case before them.  Would such a proceeding ever be thought compatible with the rights of free men?

In addition, it is the peculiar function of the judicial branch to check and balance the power of the executive branch when the rights of citizens are at stake.  Congress, especially the members of the House of Representatives elected every two years, are too close to the passions of the people, too exposed to immediate political concerns, to protect the rights of someone accused of being a public enemy.  Again, the Attorney General ignored this fundamental tenet of our constitutional system.

But the Attorney General counsels us further about the Constitution.  He admonishes us that, however disturbing the process by which the President comes to order the execution of an American citizen, however contrary it seems to our most fundamental understanding of what a citizen is due—it is necessary.   We are at war and in war "real-time decisions" must be made, as opportunity dictates.  In these circumstances, the President cannot consult; he must act.

This is true but not relevant in this case.  Again, how do we know that the American citizen to be targeted is in fact a terrorist?  The Attorney General assures us a thorough review of available information takes place before an American is executed.  This takes time.  So does collecting the information on which the review depends.  The actual execution may occur because of an opportunity that must be seized immediately, but the process that leads to seizing that opportunity unfolds deliberately over time.  In this process, is there no opportunity for the judicial branch to play its constitutional role?

Playing such a role does not require a full trial.  In 1978, Congress passed a law that established judicial review of the executive branch's surveillance of individuals, including American citizens, in certain national security cases.  This judicial review is carried out without a trial, and has been done with secrecy and dispatch.  If judicial review is necessary and possible before an American falls under surveillance, should it not also be necessary before he falls under the gun?

It is good that the Attorney General should acknowledge the Constitution.  But it would be better if he and the executive branch were guided by its spirit.

Ohio Farmer

Against All Reason and Justice

To the Members of the 112^th Congress:

I concluded a recent letter by reminding my fellow citizens that "[i]f we have any hope of restoring the Founders' vision of limited, constitutional government, we must regain their understanding of the right to property."

The House of Representatives took an important step in that direction by voting to pass the Private Property Rights Protection Act, which denies all federal economic development funds for a period of two years to any state or locality that commits eminent domain abuse. The bill also gives property owners a legal recourse to fight economic development takings.

The Act was made necessary by the Supreme Court's terrible decision in the 2005 case, Kelo v. New London. A bare majority of the Court held that it did not violate the Constitution's Fifth Amendment for the city of New London, Connecticut, to take Suzette Kelo's cherished, well-maintained home in a decent neighborhood, in order to give it (and other property nearby) to Pfizer Corporation. The Court said that the transfer could help New London's economic redevelopment efforts, so it benefited the public and thereby served a "public purpose." This is despite the fact that the Fifth Amendment explicitly says: "nor shall private property be taken for public use, without just compensation" (my italics).

The Court tried to get around this by saying that "public purpose" is the same as "public use." But it is not. As the dissent pointed out, our Founders understood "public use" to mean that "the government owns, or the public has a legal right to use, the property, as opposed to taking it for any public purpose or necessity whatsoever.... The term 'public use'… means that either the government or its citizens as a whole must actually 'employ' the taken property."

The Founders held this view because of their understanding of the right to property. As I said in my earlier letter, they held that every person has the right to acquire property and to possess it without being interfered with by other people or government. In the Founders' view, one of government's most basic purposes is to protect the right of people to possess their property unmolested.

Every government must have the power to take private property if necessary in order to construct government facilities like jails or public facilities like roads. If it did not have such power, it would not be able to do its job of protecting our natural rights. When we agree to be part of a political society, we implicitly give government (whether local, county, state, or national) this power of eminent domain.

But this power cannot be used to violate the very rights that it is created to protect. The right to possess our property means that we control it and get to keep what is ours. We can admit or exclude other people from it as we see fit ("No Trespassing!"). Under normal circumstances, even the police cannot enter a person's property without a search warrant. Government cannot tax property without our consent, and it cannot even take it for a public use unless it gives us "just compensation."

As the Kelo dissenters pointed out, all of these limitations reflect the Founders' deep understanding that our property is a part of us, and if government can take it from one person and give it to someone else, it denies that we are free people. The dissent quoted Justice Samuel Chase, who wrote in 1798 that "[a]n act of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority.... A few instances will suffice to explain what I mean.... [A] law that takes property from A. and gives it to B: It is against all reason and justice, for a people to entrust a Legislature with such powers; and, therefore, it cannot be presumed that they have done it" (Calder v. Bull).

Justice Chase had it right. And now, as America's constitutional conversation continues, so does the House of Representatives. Some members of Congress supported the bill because public purpose takings tend to appropriate property from poor and minority owners to give it to powerful, politically-connected corporations. That's true, and it's a good reason to oppose them. But it is not the best reason. Any taking from one person (rich or poor) to give to another (rich or poor) undermines the basis of all liberty because it denies that people are by nature free to "dispose of their Possessions, and Persons as they think fit, within the bounds of the Law of Nature," as John Locke put it.

The Supreme Court drifted from the Founders' understanding of a legitimate "taking" because government has drifted from the Founders' understanding of what government should do. Public use has expanded into "public purpose" because government has expanded into so many more purposes than protecting rights: for example, "re-developing" an area of New London that wasn't even blighted.

The American people have taken a lively part in this constitutional conversation. Over 90% opposed the Kelo decision; indeed, they were outraged by it. Many states responded by restricting "public purpose" takings, and some state supreme courts, like Ohio's, struck down this misuse of eminent domain on the ground that it violates their own constitutions. Across the board, Americans saw clearly that Kelo was a decision "against all reason and justice."  Employing many of the political instruments available to them, the people and their representatives have been doing what they can to defend their fundamental right to property against the unreason and injustice that gained a bare toehold in our politics in the Kelo decision.

Now it is the Senate's turn to join in this important American conversation, when it deliberates on the Private Property Rights Protection Act.  We will see if they take the opportunity to recover an important part of our Founders' reason and justice by restoring Americans' right to property.

Ohio Farmer

Regime of Liberty

To the Members of the 112^th Congress:

9-11 changed everything:  so many have said.  But as we reflect on that day, it is good to recall what has not changed in the ten intervening years. 

Seasons have come and gone.  Leaves have turned color in New England's fall; flowers bloomed in the desert southwest with the spring rain.  Snow has piled high in the western mountains and filled rivers and reservoirs.  Drought has beset new areas, as it ended in others.  Torrential rains have brought flood waters; hurricanes have wreaked havoc; earthquakes shaken the West, the East, and points in between.  And the land has brought forth harvest after harvest.

Couples have fallen in love; babies have been born; the young have aged; some of the old, the famous and the unknown alike, have passed away, disease and time taking their toll.  But as always, the population of the United States has increased steadily, by more than 30 million.   Over 11 million people not born citizens became citizens.  All of them, like the millions who have come to us one way or another throughout our history, were drawn by the hope of a better life.

We have held two Presidential elections; over 130 elections to the Senate; over 1700 elections to the House of Representatives; and almost countless elections of Governors, state legislatures, judges, district attorneys, sheriffs, school boards, municipal commissions, and numerous other offices of public trust.  Some of these elections were barely contested, others bitterly fought, all part of the oldest continuing tradition of democratic politics known to history.

All of these events and many others have unfolded since 9-11, following a pattern unbroken since our Republic came into existence.  They manifest the unending concerns of the American people and of the republican government of, for, and by the people that has been ours for over 200 years.

Like floods, hurricanes and droughts, enemies remain part of our life as a people.  Among our current foes are those who oppose us because they do not accept the idea of the sovereignty of the people.  Only God, they believe, can be sovereign or all-powerful.  God must rule, therefore, not the will of the people.  Calling the people sovereign is blasphemous, and blasphemers must be punished or destroyed. 

Americans know that on this earth the rule of God always means only the rule of men, who claim to act in God's name and with his unlimited power and act merely in their own self-interest.  Americans reject such tyranny.  They long ago concluded that an all-powerful God may be disappointed in what His creatures do but could not be threatened by their exercise of his gift of freedom.  We suspect that those who kill and destroy in the name of a supposedly threatened God actually kill and destroy to defend their own privileges or their fragile sense of self-righteousness. 

In attacking the rule of the people, our current enemies are like those we have confronted and defeated before.  Nazis and Marxists similarly disparaged the sovereignty of the people, in favor of rule by a supposed master race or master class.  Not only did these former enemies disparage American principles, they disdained the American people.  They thought us cowards or too soft and divided to defend ourselves.  Our current foes made the same mistake.

It is understandable that our enemies underestimate the resolve and power of the people.  We do on occasion ourselves.  But when we do, we should recall what Thomas Jefferson understood, something else that has not changed.  A regime resting on the sovereignty of the people, a regime of liberty, will release immense energy and creative force.  More important, only such a regime can satisfy the age-old longing for justice—a human longing that will not be denied.  That is the true source of our power and our resilience.  It is in the light of this fact that we should contemplate the demands of peoples across the Middle East, especially the young, for governments based on the sovereignty of the people.  A sign of the weakness of our current enemies, of their impending defeat, is not their death but the rejection of their ideas by their own children.

As for ourselves, we should remember that government of, for, and by the people has never been easy, but it is best.  And it will endure and prosper, as will the people it serves.

Ohio Farmer

Changing Direction

To the Members of the 112^th Congress:

Much good has been done in Washington recently.  I do not refer to the details of the debt reduction agreement, some of which we have already noted, but to the change it signifies—a change of course for the country. Turning around a fleet of aircraft carriers is child's play compared to turning around the ship of state, but I believe we see before our eyes the signs of a great, ponderous movement of America in the right direction. We owe this hopeful movement largely to the determination of the constitutional conservatives within the GOP and to the good judgment of the new Speaker of the House of Representatives.

If you wonder why liberals are in a funk, why the President's approval ratings are hitting rock-bottom, why he signed off on the debt reduction agreement in virtual secrecy, why he is being criticized openly by progressives and even being compared to the feckless Jimmy Carter, why there is disarray within the Democratic Party, you need look no further than to those who elected a GOP majority in the House, the courage of the Representatives who were elected, and the prudence of Speaker Boehner.  He got almost everything he could reasonably have hoped for in the debt reduction agreement, producing the most radical reorientation of government in our generation. President Obama and the Democrats agreed to massive spending cuts, with more to come, and no tax increases.

This is a strategic and tactical disaster for the progressives and the Democrats, but, far more important is that the debt ceiling debate exposed what Speaker Boehner calls "the arrogant habits of Washington" and opened fundamental political and constitutional questions.  The debate in Washington is shifting away from the favors government might bestow to the question of the proper role of government. As satisfying as his political victory must be, Boehner should be most encouraged by the opening now created to begin a broader conversation about big-government liberalism—really limitless-government liberalism—and why it must be reined in.

If those who brought this about remain resolute, there is a chance of bringing American government back within the bounds of the Constitution.  Boehner and his Republican supporters are beginning to disprove an assumption held by progressives and liberals (and the media) since the New Deal: that government will always grow in size and scope, that all spending increases are permanent. This is a historic change, a movement toward re-establishing public recognition that there are some things it is better not to ask government to do (see Constitutional Lines). The ear of the public is now listening to the argument for limited self-government. If their elected representatives and other public leaders can continue to explain why limiting the power of the federal government is a good thing, we have the opportunity to form public sentiment into a durable governing consensus.

During the debate over the debt ceiling, much was said about how our government is so divided that it is dysfunctional, and how the solution to the perceived problem is bi-partisanship. Some went so far as to assert that the purpose of government is efficiency. Others argued or implied that a parliamentary system would be preferable to the constitutional one we have. After all, there are problems in the world, and our government is not solving them. 

We continue to hear such assertions on a daily basis, but they miss the point. The fact is that our Constitution builds in division (see The Sense of the People); it deliberately makes it difficult to form majorities, and even more difficult to hold them. The Constitution's purpose is not efficiency.  Our constitutional government is not unified, as is, for example, the British Parliamentary regime (we note in passing that the British prime minister speaks for the government, while our president speaks for his administration, only a part of the government). With its federalism, separation of powers, bi-cameralism, and other inventions of prudence, our republican regime intentionally divides, checks, and balances power, so that,

in the extended republic of the United States, and among the great variety of interests, parties, and sects which it embraces, a coalition of a majority of the whole society could seldom take place on any other principles than those of justice and the general good.

Of course, this means that large issues cannot be quickly resolved. Changing direction in our constitutional regime is wonderfully and deliberately complicated.

The easiest and quickest way to form part of our constitutional majority is through the House of Representatives.  Should we be surprised that the new majority in the House—formed but two years into the majority that won the presidency and both branches of Congress for the Democrats—should assert itself?  And should we be surprised that the President's response is to ask this newest majority to become bi-partisan (read "Democrat")?  Politics is not rocket science.

The election of Ronald Reagan in 1980, along with the first Republican Senate majority since 1954, alerted us to divisions in the American electorate that had been muffled during the prior fifty years. Since then noisy debates have continued, with Republicans losing the Senate, then regaining it, losing the presidency, then winning the House, then losing it, and so on. We will need more than a few electoral cycles—and continued conversation and persuasion from the Republicans—to see whether the determination to limit government will take root in public opinion and become the principle of a new governing majority in American politics. In the meantime, let the divisions and the arguments for and against constitutional limits continue. Public reflection and constitutional deliberation is our strength, not our weakness.

Ohio Farmer

Constitutional Lines

To the Members of the 112^th Congress:

We have observed in these letters that the recent debt ceiling debate reflected deep divisions in Washington, D.C., but that those divisions, in turn, reflected the citizenry’s ambivalence about how big government should be, how much it should do, and how much it should tax, borrow, and regulate.  The first phase of the debt ceiling debate ended with legislation to raise the nation's legal borrowing authority by $900 billion and to cut planned federal spending over the next decade by a little more than that amount.  Thus, Congress and the president achieved Speaker of the House John Boehner's goal to match any debt ceiling increase, at least dollar-for-dollar, by deficit reductions.

The legislation also sets in motion a second phase, where a "super committee" of six members of the House of Representatives (three from each party) and six senators (also three from each party) will endeavor to reduce the nation's deficit spending over the next ten years by a further $1.5 trillion.  If the committee agrees on a plan by November 23, 2011, Congress approves it in an up-or-down vote without the possibility of offering amendments by December 23, 2011, and the president signs it, the debt ceiling will be increased by $1.5 trillion.  If the committee can't agree on a plan, or submits one the Congress votes down or the president vetoes, the debt ceiling will be increased by $1.2 trillion, and automatic reductions of federal spending by the same amount over the next decade will take effect – spending cuts evenly divided between discretionary domestic programs and national defense spending.

It is remarkable that, three years after the Democrats' across-the-board victories in the 2008 elections, deficit reduction has become the top item on the national political agenda.  The most important cause of this change in the political weather is the emergence of the Tea Party movement, which took shape in 2009 and propelled Republican gains in the elections of 2010.  That movement remains disparate – it has no headquarters, no single leader, and no agreed upon platform.  Yet some core ideas do connect all of the Tea Party's factions and actions. One friendly observer described the Tea Party essence as "populist constitutionalism," since its "divergent groups agree that the federal government has, over the last several decades, stepped further and further outside of the bounds of the Constitution."  Some of the movement's prominent figures describe themselves as "constitutional conservatives."

The endeavor to re-establish limits to the government's sphere of action and authority is highly laudable, and fully consistent with the logic and spirit of the American founding.  That undertaking will, however, be an intellectual challenge.  Reasonable patriots may disagree about the location of the line the authors of the Constitution drew separating what the government may do from what it must not do.  They may disagree, as well, about whether the logic of the Constitution countenances informal adjustments to the location of the government's boundaries over time, or demands formal adjustments only, using one of the procedures for amending the Constitution specified in its fifth article. 

For example, the power of Congress to declare war, specified in Article I, has fallen into disuse.  America hasn't declared war against any nation since 1941, yet has been involved in a number of wars over the past 70 years, some of them large and prolonged.  Does constitutional conservatism, rightly understood, entail retroactively designating all of these wars – including Korea, Vietnam, Operation Desert Storm, Iraq, and Afghanistan – illegitimate for never having been formally declared?  If so, then either Congress must declare war to authorize future martial actions, or the nation must amend the Constitution to give explicit legitimacy to the kinds of authorizations Congress has come to rely on, such as the Tonkin Gulf resolution that was the legal basis for the war in Vietnam.  If not, then resolutions and authorizations that fall short of formal declarations of war have acquired a de facto constitutionality: They aren’t mentioned in the Constitution, seem not to have been envisioned or favored by the Constitution’s authors, have not been the subject of any constitutional amendment, yet have gained acceptance as the way the federal government arrives at decisions about military actions.

The fact that there are disputes about the location of the line between what the government may and may not do, and about whether that line is bright and tight, or wide with shades of gray, does not invalidate the constitutional conservative argument that erasing any such line renders America a very different kind of republic.  James Q. Wilson, one of the preeminent American political scientists of the last half century, helps us understand this. The ultimate meaning of the triumph of the New Deal, according to him, is the collapse of the "legitimacy barrier."  Since its fall, he argued, "political conflict [has taken] a very different form.  New programs need not await the advent of a crisis or an extraordinary majority, because no program is any longer 'new'—it is seen, rather, as an extension, a modification, or an enlargement of something the government is already doing.  Since there is virtually nothing the government has not tried to do, there is little it cannot be asked to do."

The correct label for the alternative to limited government is not big government, but unlimited government.  The destruction of all legitimacy barriers creates a new constitutional logic in which government grows, not just very big, but limitlessly big.  All the forces – political, economic, and judicial – that might constrain it are rendered ineffectual.

This deformation of our republic has gone on so long, and acquired so much inertial strength, that the Tea Party movement's mission is politically as well as intellectually audacious.  We have had occasion to note in these letters Abraham Lincoln's argument that "public sentiment is everything" in American democracy: "With public sentiment, nothing can fail; without it nothing can succeed.  Consequently, he who molds public sentiment goes deeper than he who enacts statutes or pronounces decisions.  He makes statutes and decisions possible or impossible to be executed."

The ultimate goal of constitutional conservatism is to mold public sentiment into a broad, durable consensus in favor of rebuilding legitimacy barriers in American government.  This is not a task that will be accomplished by one legislative fight over the debt ceiling, or in one or two election cycles.  Conservatives, constitutional and otherwise, sometimes speak as though the establishment and perpetuation of the New Deal is the result of some kind of coup d'état.  The fact is, we have this bloated government because we, the people, have shown our favor to the expansion of government's activities far more reliably than to their contraction.  The success of constitutional conservatism will depend on exercising the statesmanship that carefully leads the people to set aside their acquired tolerance for a government that purports to have a program for every problem, and rediscover their older apprehensions that any government strong enough to give you anything you want is also strong enough to take away anything you have.

Ohio Farmer

The Sense of the People

To the Members of the 112th Congress:

In the negotiations over increasing the national debt ceiling, one fact is so obvious it has barely been mentioned: America has a government that can be, and currently is, divided. A Democratic president and Senate majority leader sit at the table with a Republican Speaker of the House.

Were the configuration otherwise, as it was between the 2008 and 2010 elections when Democrats controlled the House of Representatives as well as the Senate and the presidency, the debt ceiling debate would probably not be taking place at all. When Democratic majorities in both houses of Congress passed an increase in the debt ceiling in 2010, Republican legislators made some critical speeches but the bill moved swiftly to President Obama's desk for signature.

The possibility of divided government inheres in a constitutional republic where both houses of a bicameral legislature and the head of the executive branch are all elected by the people, but not by the same people at the same time. As our civics textbooks teach us, each Representative is elected for two years by voters in one of the 435 congressional districts. Senators are elected every six years, state-by-state. Because those six-year terms are staggered, only one third of the Senate faces the voters in any given election, while the entire membership of the House does. Presidents are elected every four years by the entire, constitutionally organized, national electorate.

Divisions like America's could never occur in a parliamentary democracy where the people elect the entire legislature at once. The party that wins a majority forms a government, and the prime minister – a member of the legislature, as are all the cabinet members – submits legislation that his party invariably passes. Such systems have been described as "dictatorships punctuated by elections."

More than a century ago, the American Progressives began their historic assault on our constitutional system, yearning for the clarity and dispatch of a parliamentary system. Woodrow Wilson, for example, sought sweeping reforms that would "make self-government among us a straightforward thing of simple method, single, unstinted power, and clear responsibility." H.L. Mencken, Wilson's contemporary, offered a less celebratory expression of the same idea: "Democracy is the theory that the common people know what they want, and deserve to get it good and hard."

One strand of the political philosophy woven into the Constitution is that sometimes the people don't know what they want, and other times they think they do, only to wind up regretting their "settled" opinions after some reassessment. The Constitution's authors believed, as one of them stated in Federalist 63, that "where the concurrence of separate and dissimilar bodies [such as the House and Senate] is required in every public act," the republic is best prepared to navigate "particular moments in public affairs when the people . . . may call for measures which they themselves will afterwards be the most ready to lament and condemn." The objective, as we have had several occasions to observe in these letters, is that "the cool and deliberate sense of the community" will "ultimately prevail."

Each party would clearly prefer to deal with the debt ceiling, and the nation's long-term fiscal problems, on its own terms, with both houses of Congress and the presidency under its control. If the Democrats had their way, that would mean higher taxes, especially on the rich; more borrowing, especially until the unemployment rate is much lower; and few spending cuts, especially from domestic programs. If Republicans controlled both ends of Pennsylvania Avenue, they would emphasize spending cuts, especially to domestic programs; less borrowing; tax reforms to apply lower, simpler tax rates to a broader, more vigorous tax base; and regulatory reforms to stimulate economic growth.

Which approach best reflects "the will of the people"? That may be a question that doesn't, at least for the moment, really have an answer. It's not as though either party's philosophy has been hidden over the past years, or undergone profound changes. The voters knew what they were getting when they gave Republicans control over all the federal elected branches from 2002 to 2006, and then when they disliked the results, and chose to check a Republican president with a Democratic House and Senate. The voters knew, or should have known, what they were getting when they empowered Democrats to run everything in 2008, and then again two years later when they decided to return the Republicans to a majority in the House to curtail the Democrats' policy-making latitude.

It would be fair to say, in other words, that the electorate has serious misgivings about both the Democrats' "big government" approach and the Republicans' "limited government" one. After signing up for either, the people quickly succumb to buyer's remorse and avail themselves of the opportunity to weaken or impede the "mandate" they conferred an election or two ago.

Americans didn't used to hedge their political bets this way. From 1900 to 1980 the White House, Senate, and House of Representatives were controlled by the same party for a total of 56 years, 70% of the time. Those 56 years included 14 consecutive years of Democratic control, from 1932 to 1946, when the New Deal was launched, and eight more from 1960 to 1968, which saw the beginning of the Great Society.

By the time the ballots from the 2012 election are counted, the same party will have controlled both houses of Congress and the presidency for only 8 of the preceding 32 years, or 25% of the time. This new era, in which divided government is the rule rather than the exception, was ushered in by the election of Ronald Reagan to the presidency, and GOP victories that gave the party its first Senate majority since 1954.

It's hard to believe that these two developments – the emergence of a credible conservative opposition to the governmental activism promoted by FDR and LBJ, and the beginning of a long era in which partisan majorities are rare and transient – are coincidental. Roosevelt and Johnson spoke to and for an American majority that liked the benefactions big government bestowed. Reagan spoke to and for a majority grown skeptical about the taxes, borrowing, and regulatory intrusions big government required.

That skepticism was sufficient to slow the growth of big government, but not to dismantle the New Deal/Great Society. For the past thirty-one years the American people have straddled an untenable position: voting in favor of most of what big government does, but against most of what big government requires. The debate in Washington over the debt ceiling is an echo of the debate, across America, over the proper scope and cost of government, a debate that seeks a resolution it has not yet found. The cool and deliberate sense of the national community will ultimately prevail, but it must first settle on one or the other of two alternatives that are fundamentally opposed.

Ohio Farmer

Willful Majorities or Constitutional Majorities

To the Members of the 112th Congress:

The 2012 elections loom in the near distance, and the presidential race could well be tighter than in 2008. So pundits, professors, and some politicians express concern, as they do every four years, that the candidate who wins the majority of the national popular vote might not win a majority of the Electoral College vote. I know this is a mathematical possibility; I think it has happened four times in 56 presidential elections. But does this possibility somehow violate the principles of fundamental fairness, disenfranchise the American voter, and bring disgrace to American democracy?  This is what is alleged every four years by those who advocate overturning the Electoral College. 

By the testimony of the Framers of the Constitution themselves, designing the office of the presidency was the most difficult task they faced. They began with the idea of having an executive chosen by the national legislature; they considered having him chosen by state legislatures, state governors, directly by the people, by special electors, and by various combinations of these methods. The mode of selection was a question inseparable from other questions: what powers to be granted to the office, the term of office, the question of reeligibility, whether the executive should be single or plural. These questions were also related to the foundations, powers, and structures of the other branches. And all these questions were related to the overarching question of how to construct a government that would best secure the safety and happiness of the people. 

After weeks of deliberations, the Framers came up with a mode of selecting the president that has managed to provide for the relatively seamless transition of government for over two hundred years.  Aside from this commendable record, the Electoral College seems to have other desirable effects. It discourages regional parties, moderating local interests by inducing them to seek a national and federal base; it provides protections for minorities, beneficently affects the character of majorities formed in selecting a president, and makes the president beholden not to the passions of a numerical majority, but to the Constitution.  In all these ways, the history of the Electoral College has justified Alexander Hamilton’s conclusion that, if this mode of selecting a president is not perfect, it is nonetheless "excellent." 

Dismissing all these interesting ingredients of our constitutional politics, opponents of the Electoral College demand simple national majoritarianism in the selection of our presidents.  But they recognize that they do not themselves have the constitutional majority necessary to amend the Constitution.  So, with no apparent sense of irony—dubbing themselves now the “National Popular Vote” movement (NPV)—they have devised a way of nullifying the Electoral College by substituting a constitutionally dubious, potentially minority vote for the constitutional majority required in the amendment process.  The NPV has launched a movement to persuade states representing 270 electoral votes—the number it takes to win the presidency under the current electoral college system—to agree through a “compact” to award all their electoral votes to the presidential candidate who wins the popular vote nationwide.  

Hawaii, Illinois, Maryland, Massachusetts, New Jersey, Vermont, Washington state, and the District of Columbia have already agreed to this compact. A bill to make California part of the compact (AB 459) has just been approved by the California legislature and awaits the signature of Governor Jerry Brown. If California’s 55 electoral votes are to be added to the compacting states, they will be about half way to the 270 votes needed to activate the compact. In each of the states participating in the compact, the majority vote of the states’ citizens is to be dismissed—or, actually, reversed—if it disagrees with the majority vote of the nations’ citizens. If a candidate wins a state but loses the national popular vote, this compact requires the state to allocate its electoral votes not to the candidate who wins in the state, but to the candidate who loses—some democracy!  

The NPV seeks constitutional authority for its effort in Article II, Section 1, of the Constitution, which says regarding the election of the President:  “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress.”  Their ambitious reading of this article shows the respect for the Constitution that one would expect from a movement seeking to undermine the constitutional requirements for elections by circumventing the constitutional requirements for amendments. 

As to Article I, Section 10, of the Constitution, dealing with interstate compacts, the National Popular Vote movement dismisses it as irrelevant. This is what the Constitution says:  “No State shall, without the consent of Congress…enter into Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay” (emphasis added). But the NPV argues that their “compact” is none of Congress’s business.  Do you think presidential elections are none of your business? 

We Americans are a constitutional people. From the beginning, we insisted that our politics must be answerable to the consent of the governed, and we devised constitutional ways of constructing and shaping our authoritative consent so that our choices would not reflect mere willful majorities but would reflect the cool and deliberate and just sense of the community.  If we are to change the electoral system in a fundamental way, we should engage, not in constitutional trickery, but in the constitutional deliberation provided for the purpose—as we have done several times in the past.  We should always be skeptical of attempts to circumvent provisions very deliberately put into the Constitution, just because a loud interest group of the moment finds them inconvenient. Where populist passion seeks to circumvent the Constitution in order to remove a constitutional check on populist passion, we should be all the more skeptical. 

Ohio Farmer

A Republic If We Can Keep It

To the Members of the 112^th Congress:

That America is emphatically an “experiment” in self government is a prominent theme of these letters. It is a noble experiment. We are honorably determined to stake the fate of our country on the capacity of Americans to govern themselves, knowing full well that this capacity is a rare and difficult thing for human beings to achieve and maintain. The capacity to govern ourselves is the capacity to set reasonable limits for ourselves. Our greatest act of self government in this sense was the act by which “we, the people” submitted our sovereign power to the Constitution, which is at once our creation and the Supreme Law over us.  We have seen in earlier letters various ways in which the Progressive project—which produced the New Deal, the Great Society, and their contemporary successors—aims to replace the Constitution with a “living constitution,” removing in principle all limits on what government might do or how it might do it. This has been the great challenge to self government for the past century. It remains the great challenge for us. It has not been, and it will not be, easy to meet it.

In his speech on April 13 at George Washington University, President Obama explained in his own way why this is the case. “You see,” he said, by way of explaining America’s deficit problem, “most Americans tend to dislike government spending in the abstract, but like the stuff that it buys.” Here, I think, the President is saying essentially what former Speaker of the House of Representatives, Thomas P. “Tip” O’Neill, meant by his most quoted maxim: “All politics is local.” The Progressive agenda counts on the fact that we Americans like the stuff government spending buys, just as Tip O’Neill counted on all politics being local. 

Whenever it was that O’Neill uttered that nugget, he was speaking as a politician, not a political scientist.  A Democrat who won his first election—to the Massachusetts legislature—in 1936, the year voters endorsed the New Deal by overwhelmingly reelecting President Franklin Roosevelt, O’Neill won his last election—to a 17th term in Congress—in 1984, the year Ronald Reagan won his landslide reelection by challenging the propriety and feasibility of continuing the New Deal’s commitment to activist government.  In saying that all politics was local, O’Neill was pushing back against Reaganism, insisting that even if Americans had become dubious about activist government in general, they were still good New Dealers when it came to the particular benefits their own towns and neighborhoods could receive from government programs.  Like Tip O’Neill, President Obama thinks—and not without reason—that Americans will be good New Dealers when push comes to shove. They will like the “stuff” they can get from government so much that, despite their self governing inclinations, they will not be able to resist making themselves more and more dependent on government. 

Reagan and O’Neill, the two antagonists of the 1980s, fought to a draw.  Government spending on social programs grew more slowly under Reagan than under any other modern president, but he was never able to make good on the promise, announced in his first inaugural address, “to curb the size and influence of the Federal establishment.”  At the same time, the nation remained so wary of government’s ambitions that two years after O’Neill’s death a Democratic president, at the start of his own reelection campaign, found it necessary to declare, “The era of big government is over.” 

This political ambivalence, in which Americans have been constitutionalists in principle but Progressives in practice (recognizing the dangers of unlimited government in the abstract, but liking “the stuff that it buys”) has been durable, but there are signs it is becoming untenable.  At the “local” level, the New York Times reported last year that many bond market experts “fear that as states struggle with their growing debts, investors could decide not to buy the debt of the weakest state or local governments,” which “would force a crisis, since states cannot operate if they cannot borrow.”  The crisis seems most formidable in states like California, Illinois, New Jersey and New York—“blue” states, where big government remains very popular.  

At the national level, we read of numbers that tend to numb the minds of even the most public-spirited citizens: the Congressional Budget Office recently forecast that the path charted in President Obama’s 2012 budget would require the federal government to borrow $9.5 trillion over the next ten years.  Federal government debt held by the public equaled 36% of the U.S. Gross Domestic Product in 2007, before the recession began, and 62% of GDP in 2010.  By 2021 (just ten years from now), according to the CBO’s scenario, it will equal 87% of GDP, $20.8 trillion, a level most economists believe would be debilitating, especially since the forces increasing federal deficits are likely to be even stronger in the third decade of this century than in the second.  To cite just one problem, CBO projects interest payments on the national debt will rise from 1.7% of GDP in 2012 to 3.9% in 2021, by which time they will exceed $900 billion per year. That’s just the interest, as the President reminded us. 

It will not be easy for Americans to be constitutionalists in theory and Progressives in practice if our elected government cannot pay its bills.  If the lenders it depends on grow deeply skeptical about its ability to raise taxes or control spending, they will refuse to buy government bonds.  (The manager of the world’s largest bond fund recently reduced the percentage of its holdings in U.S. government-issued debt to zero.)  Less drastically, lenders will demand a costly interest premium to offset the risk of default by state and local governments, or of inflation sponsored by a federal government to reduce its debt by devaluing the currency.  At some point, the question becomes, not whether people like it when the government gives things to us and does things for us—as the President knows, both logic and experience demonstrate conclusively that we do—the crucial question becomes whether people like Progressive government’s endeavors enough to pay for them.  

If we don’t, if it becomes democratically impossible either to raise the taxes necessary to fund the government’s operations, or to reduce the scope of its activities to a level that can be accommodated by the taxes the people are willing to pay, then the Progressive project collapses.  The people will no longer mediate the disparity between what they demand from government and what they surrender to it.  Instead, decisive power over governance will pass to the lenders who keep public-sector operations afloat.   

Such a result would be a financial debacle.  The hard choices the people and their elected representatives now refuse to make will, in retrospect, be far easier than the policy changes an unsentimental bond market insists on as the price for further credit.  But the political failure will be even more deplorable.  In the well-known anecdote already recalled in these letters and sure to be noted again, Benjamin Franklin, upon being asked after the final meeting at Independence Hall in 1787 what kind of government the constitutional convention had fashioned, is supposed to have said, “A republic, if you can keep it.”  It is to America’s credit that we have kept the republic, and in many ways strengthened and improved it, for 224 years.  But we won’t be able to keep it for many more years if we do not return to our self governing ways. 

Ohio Farmer

Reconstitutionalizing America

To the Members of the 112^th Congress:

To bring American government back within the bounds of the Constitution —to reconstitutionalize it—will be no easy or simple task.  How dismissive of the Constitution our government has become was memorably expressed by then Speaker of the House, Nancy Pelosi, in two widely quoted remarks about the health care bill that ultimately became the Patient Protection and Affordable Care Act (PPACA), whose constitutionality is seriously in dispute right now.  It is worth recalling her words, because they are a surface expression of an attitude toward our politics that is deeply entrenched and must be replaced by a very different attitude if we are to recover constitutional self-government. In October 2009 when a reporter from CNSNews.com asked, “Where specifically does the Constitution grant Congress the authority to enact an individual health insurance mandate?” Pelosi replied, “Are you serious?  Are you serious?”  Then in a March, 2010, speech, Pelosi said, “We have to pass the bill so you can find out what’s in it.”

Her rhetorical question—“Are you serious?”—was, of course, meant not to begin but to end conversation. Such contemptuous dismissal of citizens’ serious concern about constitutionality made many voters indignant last November, and they carried their well justified indignation with them to the ballot box.  The arrogant contempt continued in the sniffing dismissals that greeted the new Congress’s show of respect for the Constitution.  This arrogance comes from a belief that is held to be unquestionable. This is the belief that the New Deal irrevocably transformed America into a country whose central government has the authority to address any social or economic problem, and to mandate or proscribe any individual conduct plausibly related to alleviating that problem.  To the former Speaker and those who agree with her, it is preposterous—mind-boggling—that any 21st century American should presume to question this article of faith. The same arrogant incredulity struts and postures angrily in Wisconsin and Ohio and other states where public employee unions and their advocates in the media assert a right to collective bargaining that is somehow supposed to be regarded as sacred and beyond question. Whatever citizens may think of the merits of the question, the arrogance of such assertions sticks in the craw of those who cherish self-government.  

Pelosi’s second statement acknowledges that in this post-New Deal America, when Congress does something, it’s not really Congress that does it.  We have to pass a bill to find out what’s in it because what’s “in” it resides nowhere in the language of the legislation, but in the rulings and regulations that will be handed down, months and years after the bill-signing ceremony, by administrative agencies empowered by Congress to make all the practical policy determinations. What one New Dealer advocated in 1937 has come to pass—every important law enacted by Congress is really “a declaration of war, so that the essence of the program is in the gradual unfolding of the plan in actual administration.”  In PPACA’s declaration of war on the problem of people being uninsured, under-insured, or over-insured, it creates 159 new federal entities to devise and execute a battle plan.

Representative Pelosi is right about the way America is governed now: The federal government can do just about anything it wants, and can do it just about any way it wants.  It can do this because, in the course of the last two generations, the federal government has assumed responsibility for the social and economic well-being of every American.  This required the creation of programs for managing in minute detail all the social and economic relations between all the different members and segments of American society—employers and employees, producers and consumers, doctors and patients, husbands and wives, parents and children, and on and on. Because Congress cannot possibly write legislation governing so many details of so many interactions, it must outsource rule-making to boards, agencies and commissions, such as the Elder Justice Coordinating Council or the Cures Acceleration Network created in PPACA.   

As the New Deal was gathering steam the Supreme Court held, in 1935, that such “delegation run riot” violated the Constitution’s assignment of legislative power to Congress.  That is, the Constitution does not permit Congress to delegate its powers to any other governmental entity.
The Court has never explicitly overturned that decision, though it has implicitly negated it over the subsequent 76 years by acquiescing as Congress plunged ahead in riotous delegation.  When Congress delegates real governance in this way to agencies not answerable to the American people, it creates the conditions for lawless policy, subjecting every detail of American life to regulators bound by nothing but their own will.  

In the reading of the Constitution with which the newly elected House of Representatives began its first session, one hopes that every member gave full attention to Article One, Section One: “All legislative powers herein granted shall be vested in a Congress of the United States.” Supreme Court justice Hugo Black famously wrote about the First Amendment that “‘No law’ means no law.”  By the same token, we cannot reconstitutionalize American government until jurists, legislators, and citizens begin to insist, “‘All legislative powers’ means all legislative powers.”

This reconstitutionalization would have been assisted if the House had also sat for a reading of the Declaration of Independence, especially the part about governments “deriving their just powers from the consent of the governed.”  The 62nd Federalist Paper warned us against the sort of hyperactive government needed to secure every citizen’s socioeconomic well-being: “It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be tomorrow.”  The predicament becomes much worse when the blizzard of edicts is issued, not by “men of our own choice,” but by appointed and usually life-tenured civil servants who cannot be removed or rebuked by mere citizens.  This arrangement dilutes and attenuates the consent of the governed so severely that it deprives the government of what the founders considered the only source of legitimate power.   We should bend our efforts to recovering the full range and authority of the constitutional consent from which the just powers of government are derived.

Ohio Farmer