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Tuesday, October 16, 2012

The Transformation of America’s Political Institutions

“We are coming now to realize that life is so complicated that we are not dealing with the old conditions, and that the law has to step in and create new conditions under which we may live, the conditions which will make it tolerable for us to live.” — Woodrow Wilson, The New Freedom, 1913.

In 1913 Woodrow Wilson gave a speech entitled “The Old Order Changeth” as a part of his New Freedom series. In speech Wilson stated:

“We used to think in the old-fashioned days when life was very simple that all that government had to do was to put on a policeman’s uniform, and say, "Now don’t anybody hurt anybody else." We used to say that the ideal of government was for every man to be left alone and not interfered with, except when he interfered with somebody else; and that the best government was the government that did as little governing as possible. That was the idea that obtained in Jefferson’s time. But we are coming now to realize that life is so complicated that we are not dealing with the old conditions, and that the law has to step in and create new conditions under which we may live, the conditions which will make it tolerable for us to live.”

Wilson, while a fan of Thomas Jefferson, did not believe that the United States could survive in the new industrial world by adhering to the outdated model of the Constitution. He believed we needed a new system of leadership where the executive was the political leader of the nation and we needed a cadre of experts to run his new administrative state. This was to be the model for the progressive liberalism’s transformation of America’s political institutions from Madison’s constitutional republic, where laws were made by the legislature, to an administrative state where laws and regulations came down from the executive branch through the hands of commissions of experts and masterminds.

Progressives undertook the transformation of America’s political institutions—in particular the Legislative, Executive, and Judicial branches—to reflect their understanding that government is divided into politics (representation of the will of the people) and administration (development and implementation of civic policies and programs determined by scientific expertise and masterminds). This administrative system, in which Congress delegates its lawmaking authority to regulatory agencies, replaces the centrality of the consent of the governed with the rule of unelected, bureaucratic experts.

As a direct consequence of the idea that government should adapt to the changing needs of modern industrial society, Progressives have transformed the functions of American political institutions and, in so doing, have expanded the power of government. Jettisoning the Founders’ understanding of the purpose of separation of powers (to prevent the tyranny of the passions by enabling reasoned deliberation in legislative matters), Progressives transformed the three branches of government to reflect their desire for a division between politics and administration.

The business of elected politicians, the Progressives held, is to give expression to the will of the people. However, ultimately motivated by their own desire for reelection, politicians merely represent the special private interests of their immediate constituents. Lacking the technical expertise and training required by the complexities of rulemaking in a modern society, members of Congress delegate their lawmaking power to the nonpartisan, bureaucratic experts who staff administrative agencies. In turn, these experts formulate the policies and regulations governing the daily life of citizens.

The Executive and Judicial branches likewise have undergone a transformation. The President is now viewed as the nation’s legislative leader. His primary responsibility is to rally public opinion around certain proposals, and to secure their enactment. He is only secondarily responsible for the execution of laws. The federal Judiciary also currently exhibits the Progressive understanding of its function that the Judicial branch should be thought of as an administrative agency whose expertise is the Constitution. This expertise authorizes it to determine the ultimate meaning of the Constitution, in accordance with the needs of the times and the realities of progress.

In Federalist 49 James Madison wrote:

“The executive power might be in the hands of a peculiar favorite of the people. In such a posture of things, the public decision might be less swayed by prepossessions in favor of the legislative party. But still it could never be expected to turn on the true merits of the question. It would inevitably be connected with the spirit of pre-existing parties, or of parties springing out of the question itself. It would be connected with persons of distinguished character and extensive influence in the community. It would be pronounced by the very men who had been agents in, or opponents of, the measures to which the decision would relate. The PASSIONS, therefore, not the REASON, of the public would sit in judgment. But it is the reason, alone, of the public, that ought to control and regulate the government. The passions ought to be controlled and regulated by the government.”

But by 1913 the liberal/progressives believed as Frank Goodnow and Woodrow Wilson had stated the political leader of the nation should be the president who would respond to the WILL of the people and that administration should be the execution of that will. As you can see this is in total contradiction to what our Founders believed and wrote in the Constitution. The Constitution gives all power to make laws to the legislative body and limited powers to the executive. In essence it is the responsibility of the executive to carry out the laws passed by Congress.

In 1915 Herbert Croly (the co-founder of The New Republic) wrote in his essay Progressive Democracy:

“The mechanism of direct government has, consequently, an essential function to perform in the organization of a social democracy. The realization of a genuine social policy necessitates the aggrandizement of the administrative and legislative branches of the government. Progressive democracy recognizes the need of these instruments, but it recognizes the need of keeping control of them. A strong government with an affirmative policy and effective popular control are supplementary rather than hostile one to another. The realization of such a policy will in the long run demand both an efficient system of representation and an efficient method of direct popular supervision.

““Democracy implies and needs some method of representation which will be efficient and responsible enough to carry out a social policy, but which does not imply the delegation of its own ultimate discretionary power to any body of men or body of law. The new system can accomplish nothing without human energy, intelligence, sacrifice and faith, but if those qualities are present, it will make the best use of them.”

“In all three of the principal departments of government, there are essential functions to be performed which must be delegated by a democracy to selected men under conditions which make for technical efficiency and individual independence and self-respect. The Fathers of the Republic were fully justified both in keeping the powers distinguished, and in seeking to balance one against the other. Their mistake consisted in the methods adopted for preserving or readjusting the balance. The preservation of a balance depends upon the harmonious development of several elements which enter into it; and as in the course of nature harmonious development is rare, the preservation of any such balance must usually be contrived by human insistence and intelligence. Only one part of a democratic system is entitled to exercise any such function—the electorate itself. The whole of a democratic political system is divided into three parts, not merely or primarily as a protection to individual and popular liberties, but rather to provide an essential positive individual and popular liberties, but rather to provide an essential positive function for the people to perform—the function of recreating the unity which is necessarily compromised by the no less necessary specialization of governmental function. Such is the part which the people, or the closest possible approximation to the people, have to play in the process of their own nationalization or socialization. They must divide in order to act, to think, to rule, to move on and to aspire; but they must not impose upon any one of the resulting classifications or subdivisions the responsibility of ultimate social cohesion. That responsibility rests with the whole people, and its fulfillment depends upon popular intelligence, sympathy and faith.”

This is in total contradiction to Madison’s beliefs, as expressed I his famous Federalist No. 10 where he spoke of “factions” and “passions” of the people and made the case for a constitutional republic with a bi-cameral legislature and a “check and balance” between the three branches of government with the legislative being the most powerful due to their budgetary control and the judiciary being the least. Madison wrote:

“By a faction, I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community.

The latent causes of faction are thus sown in the nature of man; and we see them everywhere brought into different degrees of activity, according to the different circumstances of civil society. A zeal for different opinions concerning religion, concerning government, and many other points, as well of speculation as of practice; an attachment to different leaders ambitiously contending for pre-eminence and power; or to persons of other descriptions whose fortunes have been interesting to the human passions, have, in turn, divided mankind into parties, inflamed them with mutual animosity, and rendered them much more disposed to vex and oppress each other than to co-operate for their common good. So strong is this propensity of mankind to fall into mutual animosities, that where no substantial occasion presents itself, the most frivolous and fanciful distinctions have been sufficient to kindle their unfriendly passions and excite their most violent conflicts. But the most common and durable source of factions has been the various and unequal distribution of property. Those who hold and those who are without property have ever formed distinct interests in society. Those who are creditors, and those who are debtors, fall under a like discrimination. A landed interest, a manufacturing interest, a mercantile interest, a moneyed interest, with many lesser interests, grow up of necessity in civilized nations, and divide them into different classes, actuated by different sentiments and views. The regulation of these various and interfering interests forms the principal task of modern legislation, and involves the spirit of party and faction in the necessary and ordinary operations of the government.”

Today we live in an administrative state where Congress’ primary function is Constituent services. Our representatives pass broad conceptual laws and then leave the interpretation and enforcement to the experts and masterminds of the administrative state. These bureaucratic experts outlive Congresses and Presidents and are the real power in the United States.

An example is the EPA. When Congress passed the clean water act they had no idea as to how the masterminds at the EPA would interpret, create regulations and enforce them. This was clearly demonstrated when an Idaho couple decided to build a house on their property on which there was a small inland lake. Not only did the EPA prevent them from building their dream home on their own property they also prevented them from having a hearing and going to court to plead their case. Fortunately the Supreme Court granted certiorari and heard their case after the Ninth Circuit Court rejected their case. In Sackett v. United States Environmental Protection Agency the Supreme Court, by a decision of 9-0, rejected the decision of the Ninth Circuit Court and ruled against the EPA.

In his opinion Justice Alito noted in this case “real relief” must come from Congress. The Clean Water Act does not contain clear rules regarding procedure. No one really knows what a wetland is. The EPA takes advantage of the lack of clarity and, like any bureaucracy, grabs power. This is the 40th anniversary of the Clean Water Act. As Congress has not seen fit to clean it up over the decades, it is unlikely to do so now.

The problem is for the Sacketts is that they won the right to sue the EPA, but not the right to build their home. This is another battle that needs to be fought against the masterminds of the EPA and the administrative state.

As I have written before the liberal/progressives, the advocates of the administrative state, believe as Wilson that the Constitutions is outmoded and is what is holding the nation back from moving forward. Sanford Levinson, a professor of law and government at the University of Texas, Austin believes the Constitution is “Imbecilic.” He writes in his article, “Our Imbecilic Constitution:”

“Our vaunted system of ‘separation of powers’ and ‘checks and balances’—a legacy of the founders’ mistrust of ‘factions’—means that we rarely have anything that can truly be described as a ‘government.’ Save for those rare instances when one party has hefty control over four branches—the House of Representatives, the Senate, the White House and the Supreme Court—gridlock threatens. Elections are increasingly meaningless, at least in terms of producing results commensurate with the challenges facing the country.

“But if one must choose the worst single part of the Constitution, it is surely Article V, which has made our Constitution among the most difficult to amend of any in the world. The last truly significant constitutional change was the 22nd Amendment, added in 1951, to limit presidents to two terms. The near impossibility of amending the national Constitution not only prevents needed reforms; it also makes discussion seem futile and generates a complacent denial that there is anything to be concerned about.”

And then we have Supreme Court Justice William Brennan stating at a Text and Teaching Symposium:

“We current Justices read the Constitution in the only way that we can: as Twentieth Century Americans. We look to the history of the time of framing and to the intervening history of interpretation. But the ultimate question must be, what do the words of the text mean in our time. For the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs. What the constitutional fundamentals meant to the wisdom of other times cannot be their measure to the vision of our time. Similarly, what those fundamentals mean for us, our descendants will learn, cannot be the measure to the vision of their time.

Time works changes, brings into existence new conditions and purposes. Therefore, a principle to be vital must be capable of wider application than the mischief which gave it birth. This is peculiarly true of constitutions. They are not ephemeral enactments, designed to meet passing occasions. They are, to use the words of Chief Justice John Marshall, ‘designed to approach immortality as nearly as human institutions can approach it.’ The future is their care and provision or events of good and bad tendencies of which no prophesy can be made. In the application of a constitution, therefore, our contemplation cannot be only of what has been, but of what may be.

Interpretation must account for the transformative purpose of the text. Our Constitution

was not intended to preserve a preexisting society but to make a new one, to put in place new principles that the prior political community had not sufficiently recognized. Thus, for example, when we interpret the Civil War Amendments to the charter-abolishing slavery, guaranteeing blacks equality under law, and guaranteeing blacks the right to vote-we must remember that those who put them in place had no desire to enshrine the status quo. Their goal was to make over their world, to eliminate all vestige of slave caste.

There are those who find legitimacy in fidelity to what they call the ‘intentions of the Framers.’ But in truth it is little more than arrogance cloaked in humility. It is arrogance to pretend that from our vantage we can gauge accurately the intent of the Framers on application of principle to specific, contemporary questions.”

I guess Justice Brennan, one of the most liberal/progressive justices to sit on the Court, never heard of or reads the Federalists Papers, which give a pretty good idea of what our Founders were thinking.

And then we have the liberal/progressive Thomas Friedman writing about the wonders of China, a totalitarian state in his article “Our One-Party Democracy.”

“One-party autocracy certainly has its drawbacks. But when it is led by a reasonably enlightened group of people, as China is today, it can also have great advantages. That one party can just impose the politically difficult but critically important policies needed to move a society forward in the 21st century. It is not an accident that China is committed to overtaking us in electric cars, solar power, energy efficiency, batteries, nuclear power and wind power. China’s leaders understand that in a world of exploding populations and rising emerging-market middle classes, demand for clean power and energy efficiency is going to soar. Beijing wants to make sure that it owns that industry and is ordering the policies to do that, including boosting gasoline prices, from the top down.

Our one-party democracy is worse. The fact is, on both the energy/climate legislation and health care legislation, only the Democrats are really playing. With a few notable exceptions, the Republican Party is standing, arms folded and saying “no.” Many of them just want President Obama to fail. Such a waste. Mr. Obama is not a socialist; he’s a centrist. But if he’s forced to depend entirely on his own party to pass legislation, he will be whipsawed by its different factions.”

Look at the climate/energy bill that came out of the House. Its sponsors had to work twice as hard to produce this breakthrough cap-and-trade legislation. Why? Because with basically no G.O.P. representatives willing to vote for any price on carbon that would stimulate investments in clean energy and energy efficiency, the sponsors had to rely entirely on Democrats — and that meant paying off coal-state and agriculture Democrats with pork. Thank goodness, it is still a bill worth passing. But it could have been much better — and can be in the Senate. Just give me 8 to 10 Republicans ready to impose some price on carbon, and they can be leveraged against Democrats who want to water down the bill.

“China is going to eat our lunch and take our jobs on clean energy — an industry that we largely invented — and they are going to do it with a managed economy we don’t have and don’t want,” said Joe Romm, who writes the blog,”

I always knew Thomas Friedman was a lefty-progressive, but a believer in a totalitarian dictatorship of experts and masterminds who have complete control over their citizens is quite another matter. No less a figure than Karl Marx argued that administrative bureaucracies would not, in fact, be free of their own self-interests. I wonder how Mr. Friedman would feel if the government began to censor his articles and tell him what he could or could not write under pain of imprisonment.

With the power of the legislature diminishing and the rise of the administrate state the liberal/progressive have no taken to the courts to establish their control over the governed. Most people believe it was Marbury v. Madison that gave the Court power over the constitution. Over the years the Court has ruled on many issues with dubious Constitutionality; Dred Scott, Plessey v Ferguson, Wickard v. Filburn, Korematsu v. United States, and the latest example of the ruling on ObamaCare.

Now our legislation emanates from the bench and the liberal/progressives love it. If they can’t get their agenda through the legislature and the executive does not support them they turn to the bench. The final interpretation of the Constitution is now in the hands of 9 unelected members of the Supreme Court and by a 5-4 decision these justices can write new laws. This proven in the 1958 landmark case of Cooper v. Aaron which held that the states were bound by the Court's decisions and had to enforce them even if the states disagreed with them.

While the progressives hailed the 9-0 decision some legal scholars criticized the Court's rationale in Cooper. Perhaps the most famous criticism of the case was that of a former US Attorney General, Edwin Meese, in his law review article entitled The Law of the Constitution. There, Meese accused the Court of taking too much power for itself by setting itself up as the sole institution responsible for the interpretation of the Constitution. He wrote that while judicial interpretation of the Constitution binds the parties of the case, it should not establish a supreme law of the land that must be accepted by all persons.

In the abstract of his paper presented at the presented at the Citizen's Forum on the Bicentennial of the Constitution (New Orleans, LA, October 21, 1986) Meese states.

“This paper discusses the distinction between the Constitution and constitutional law. The Constitution is the fundamental law of the United States. It creates the institutions of government, enumerates the powers of these institutions, and delineates areas government may not enter. The Constitution is the instrument by which the consent of the governed is transformed into a government. Constitutional law is that body of law which has resulted from the Supreme Court's adjudications involving disputes over constitutional provisions or doctrines. A constitutional law decision does not establish the "supreme Law of the Land" that is binding on all persons and parts of government, henceforth and forevermore. Rather, Constitutional law is the product of judicial interpretation of the supreme law of the land, the Constitution. Officials of the executive and the legislative branches of government also have the duty and responsibility to interpret the Constitution.”

My final quote is from Peter Orszag, Obama’s former formerly Obama's director the Office of Management and Budget (one of those bureaucratic masterminds), and now a vice chairman at Citigroup. He recently penned a column in the New Republic titled: "Too Much of a Good Thing: Why We Need Less Democracy." In which he said:

“THE PROBLEM WITH such commissions is that, like automatic stabilizers and backstop rules, they reduce the power of elected officials and therefore make our government somewhat less accountable to voters. Larry Diamond of the Hoover Institution at Stanford puts it this way: “There is something undemocratic about entrusting the formation of big policy decisions to expert commissions.” And yet he also goes on to note that “the process is not less democratic than having nine unelected justices with lifetime tenure and no political accountability to anyone but themselves decide such basic questions as when a woman can have an abortion and where a child can go to school.” He concludes that, despite the risks, rising polarization justifies the increased use of these types of commissions.

As the debt-limit experience vividly illustrated, by polarizing ourselves, we are making our country more ungovernable—and no one has come up with a practical proposal to deal with the consequences. I wish it were not necessary to devise processes to circumvent legislative gridlock, but polarization isn’t going away. John Adams may have been exaggerating when he pessimistically noted that democracies tend to commit suicide, yet, as we are seeing, certain aspects of representative government can end up posing serious problems. And so, we might be a healthier democracy if we were a slightly less democratic one.”

Liberal/progressives, at least since Woodrow Wilson, want to replace the will of the people with the will of the bureaucrats. They want a society run by experts and masterminds — like the ones that run our failed "stimulus," TARP and the Fed.

Fact is, they don't trust you to run your own lives, and they have a barely concealed contempt for the very people who voted them into office. They want to rule you by curbing your democratic rights — by force, if needed.

The consent of the governed is being replaced by the rule of the experts and masterminds of the administrative state. Politicians come and go, but bureaucrats are forever.

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