Happy birthday to the American Republic; now let’s keep it

Originally published in The Hill, September 17, 2018.

In the summer of 1787, 55 men, representing states with interests so disparate that they were viewed almost as separate countries, met in Philadelphia to “reform” the Articles of Confederation. Their meeting produced the most envied and most successful form of national government ever conceived. After much debate, the Constitution of the United States was ratified on Sept.17, 1789.

At the conclusion of the Constitutional Convention 231 years ago, Benjamin Franklin remarked that the Framers had given the people a Republic, “If you can keep it.”

Have we kept it?

While many of the words of the Constitution remain the same, the way the federal government functions bears almost no resemblance to the carefully crafted system of distinct and coordinate branches set up by the Framers. Consider modern American government through the prism of the Supreme Court confirmation hearings of Judge Brett Kavanaugh.

Protestors yelled about the future of judicially invented rights while demanding a say in a confirmation process from which the Framers specifically excluded them, senators took turns grandstanding and issuing the first salvos of their presidential campaigns, and President Trump tweeted about how “mean, angry and despicable” Democrats are. For his own part, Judge Kavanaugh followed the playbook set down by his predecessors by keeping his head down.

How did we get here?

For starters, the Supreme Court was never intended to be the all-powerful super legislature that some say it is today. Judges are supposed to consider a given set of facts and apply the law as required to decide cases. Nothing more, nothing less. As Alexander Hamilton wrote in Federalist No. 78, the court would “always be the least dangerous to the political rights of the Constitution, because it will be least in a capacity to annoy or injure them.” The personal political or policy preferences of individual justices were not supposed to matter.

The overreaction and hysteria over modern Supreme Court nominations is a direct result of the court becoming increasingly more concerned with making law than with doing what the Constitution and laws enacted by Congress require.

Insulated from the passions and prejudices of the democratic electorate, the executive was to be appointed through the function of an electoral college. Presidents never were intended to be the unique representative or voice of the people, and they certainly never were meant to set legislative agendas, unilaterally take the country to war, or use their office to exert pressure on the other branches. The primary responsibilities of the president were supposed to be generally ministerial in nature as they ensure that the laws enacted by Congress are “faithfully executed.”

As for Congress, it is not a coincidence that the article describing the powers of Congress was listed first in the Constitution. Our legislative branch was intended to be the center about which our constitutional constellation would orbit. Congress would be the place where actual policy-making would take place. After all, Congress was the sole branch empowered by the people to make new law. Accordingly, many of the Framers believed that the day that newly-elected members were sworn in would be more cause for celebration than the inauguration day of the president.

Thanks to several dubiously decided Supreme Court cases (such as the ability of Congress to regulate wheat grown on your own property for your own consumption, or unlimited federal spending for the “general welfare”), the scope of congressional power has grown far beyond the limited, specific and enumerated powers originally assigned.

But along with this unprecedented expansion of power, Congress has all but rendered itself irrelevant. Members have given away their law-making power to executive branch agencies. The result has been to not only dangerously tip the constitutional scales, but to place the bulk of lawmaking power into the hands of bureaucrats beyond the democratic oversight of the people.

Empowered by Congress through purposefully ambiguous statutes, and wielding the power to make “rules” with the same force as law, it is no exaggeration to say that the function of executive branch agencies poses the single greatest threat to individual liberty. The original role of the president was to be a chief administrator of sorts, seeing that the laws enacted by Congress are “faithfully executed,” with the majority of their power being reserved to foreign relations and war.

The more Congress shirks its democratic responsibility, the more dysfunction there will be in the executive and judicial branches. The result will be a continuing lack of responsibility, out-of-control executive agencies, and a Supreme Court plagued by partisanship.

Timothy Snowball is an attorney at Pacific Legal Foundation, which litigates to enforce the Constitution’s guarantee of individual liberty.