Perhaps no concept in American politics is more familiar and appealing—yet more vacuous of meaning—than “the rule of law.” A close rival might be the equally indispensable but ambiguous word “constitution.”
While rhetorical ambiguity sometimes proves useful in politics, sustained disregard of the meaning of these fundamental ideas has a demoralizing effect on republican government. Notwithstanding the pragmatic, if not providential, ability of the American people to select worthy leaders through most of their history, to misunderstand or ignore fundamental principles of law and constitutionalism is to begin to undermine what Abraham Lincoln identified as “the strongest bulwark of any Government, and particularly of those constituted like ours”—namely, “the attachment of the People.”
I have returned to the mothership after a great trip to Worcester, Massachusetts earlier this week to speak at Assumption College for its Constitution Day event, albeit a few days after September 17th. The students and faculty at the event were excellent. I thought it worth mentioning that the students in attendance were fundamentally sound in mind and not overwhelmed with ideological convictions, which proved excellent for the talk I delivered. In short, there’s a solid liberal arts tradition at Assumption. And that’s all to the credit of the faculty. If you’re looking for an education in the Humanities for yourself or for a son or daughter, then I would urge considering Assumption. They also permitted me to indulge in a bit of an off-road lecture on Orestes Brownson’s case for political loyalty as the crucial underpinning of our constitutional order. Many thanks to Prof. Bernard Dobski, Chairman of the Political Science Department, for the invitation and to Brother Greg for a wonderful introduction. My talk is below:
Jonathan Rauch of the Brookings Institution, a dear friend and one of the nation’s most insightful and thoughtful political observers, explains in a provocative Atlantic piece “How American Politics Went Insane.” The short answer, more fully elaborated in Jonathan’s earlier e-book, is disintermediation—that is, the demolition of political structures and mechanisms that, in a system of divided powers, make politics work and enable “middlemen” and power brokers to protect the system against crazies. Primaries and campaign finance reforms have weakened the parties. The destruction of the seniority and committee system has disabled Congress from legislating even when a (latent) consensus does exist. “Open government” reforms have constricted the space that is needed for political bargaining. The “pork” that once greased the system has mostly disappeared. Over time, the institutional immune system has collapsed. The ensuing chaos has produced further public disaffection and populist agitation against “the establishment.” It’s a feedback loop, and not a good one.
The Chief Executive of Hong Kong recently lamented that permitting democratic elections there would permit too many relatively poor people to vote. He fears that this group – comprised of those earning less than $1,800 per month, in his view – could vote themselves excessive benefits and endanger Hong Kong’s prosperity.
The irony is delicious – the Chief Executive, vetted for his position by the Communist Party of China, opposes democracy because it empowers the poor. May the communist slogans in China rest in peace!
But does the Chief Executive have a point, at least in the Hong Kong context?
The President’s use of executive power outside and above the bounds of the Constitution is well known at this point. In policies ranging from the railroading of creditors in the auto bailouts, to Obamacare by waiver, eliminating key work provisions in the 1996 welfare reform legislation, Deferred Action for Childhood Arrivals, and to the informed suspicion that he will unilaterally legalize 5 to 6 million illegal immigrants, this President has entered a new realm of abuse of power. Resulting from the stress he’s placing on our constitutional order have arisen significant interventions that attempt to underline how and why we have arrived at this new dimension of executive power, even in the case of Congress there is an attempt to reclaim its authority, if only in a pusillanimous manner.
2014 has been a great year for reading about the tense relationship between the modern administrative state and American constitutionalism. F.H. Buckley’s The Once and Future King attempts to grapple with the accretion of power towards the executive in modern democracies, while Philip Hamburger’s Is Administrative Law Unlawful? explores the challenges that the administrative state poses for the rule of law.
A third contribution by Georgetown Law professor Daniel Ernst, titled Tocqueville’s Nightmare, argues that the tension between bureaucracy and freedom was actually resolved in American history by reformers between 1900-1940. Thus (like Jerry Mashaw’s 2012 book Creating the Administrative Constitution) it seeks to defend the administrative state against accusations that it cannot coexist peacefully without our constitutional system.
Like many others at the moment, I am making my way through Philip Hamburger’s Is Administrative Law Unlawful? One of the most shocking chapters is his chapter on America’s “Return to Extralegal Adjudication,” a problem that constitutional law had originally aimed to constrain, but which has re-emerged in the context of the modern administrative state.
I knew that there were problems with administrative adjudication – I just didn’t grasp how pervasive the problems were until Hamburger laid them out so systematically.
Democrats and Republicans, by entering and exiting the 2013 “government shutdown” without regard to America’s traditional Constitutional practices, practically instituted among us the European practice of single “crisis” votes that enable or disable governments. The remedy lies in removing any doubt as to what the US Constitution means.