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The Daily Signal
The Mythical
Constitution
Joseph Postell
September 14, 2017
The nation marks the 230th birthday of our Constitution this weekend.
On Sunday, many Americans of all political persuasions who are aware of
Constitution Day will praise the Framers of that document and express
gratitude that they live under its protections.
They will celebrate the fact that we have a representative democracy,
where the laws are written by people who must stand for re-election at
regular intervals.
They will praise our system of separated powers, where no person has
the power to be lawmaker, investigator, prosecutor, judge, jury, and
executioner. And they will cheer for the Bill of Rights, which
guarantees our freedoms from searches without probable cause and from
self-incrimination, and secures our rights to due process.
One problem, though.
That Constitution—the one taught to students in high school civics
classes—doesn’t really exist anymore. Nowadays, American government
follows a process that barely resembles the basic principles
established in our fundamental law.
Of course, we haven’t parted with the Constitution officially.
Congress still enacts laws from time to time, and we still elect its
members. The president’s election is independent from Congress, unlike
many parliamentary systems, and federal judges are independent of the
legislative and executive branches because of their tenure during good
behavior and their fixed salaries. It would be incorrect to say that
today’s system is completely unconnected to the Constitution’s
structure.
The problem is that our textbook description of American government
conceals the reality of the administrative state. Most of the rules
that govern our behavior are made by administrative agencies, not by
Congress. Administrative agencies also investigate, prosecute, and
enforce violations of these rules.
The agencies have the power to “adjudicate” disputes stemming from
their rules, in what Columbia law professor Philip Hamburger calls
“miniature courts” within the agencies themselves. Administrative
judges and administrative law judges are new features of our political
system, so that even the judges are no longer independent.
In many cases, the Bill of Rights itself has been considered
inapplicable.
Unlike traditional law enforcement, many bureaucrats have power to
search private property without a particular warrant. In administrative
proceedings, the right to avoid self-incrimination is frequently
dispensed with. The right to trial by jury, guaranteed by the Seventh
Amendment, is not always recognized, even in administrative decisions
where millions of dollars of fines are on the line.
This amounts, in essence, to a policymaking process that exists in
limbo, somewhere outside the normal constitutional process and the
normal constitutional constraints. Almost everyone paying attention
acknowledges that the existence of this administrative state raises
important constitutional questions. But to many, it seems like
bureaucratic government is just one of those things that we’re stuck
with as a necessary part of modern life.
This is not the path we had to take.
Regulation and administration have existed throughout American history.
There were building codes, environmental, health, and safety rules, and
plenty of regulatory programs during the first years of our nation. The
difference is that those regulations were enacted by elected
representatives passing laws, or by judges who applied the principles
of common law to resolve disputes among citizens.
The regulations were merely enforced, and carried out, by the
administrative agencies that today are often the lawmakers,
investigators, judges, juries, and executioners. We had administration,
but not an administrative state.
It was more difficult, admittedly, to regulate through these
constitutional mechanisms. But people agreed that the Constitution’s
principles were important enough to accept the inconvenience of
following them. Looking back at how they managed to enact regulations
within the Constitution’s boundaries is something we should be doing
today.
For several years, Congress has taken a closer look at reforming this
administrative state that has grown up around the Constitution and
threatens its core principles. But thus far, very little has been
completed.
The path back to constitutional government will be long and difficult
from this Constitution Day, but many good ideas have been offered for
bringing our administrative behemoth back into the constitutional
framework.
It is the responsibility of Congress to rein in the administrative
state and begin the slow, arduous task of rebuilding constitutional
government.
Read this and other articles at The Daily Signal
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