Statesmanship in a post-Constitutional moment
By Russell Vought – 09.29.2022
Whittaker Chambers once said that one of the most important cravings in the modern world is height. The ability to get up and see the lay of the land, above the various forces of history moving us when we don’t know we are being moved. This talk is an attempt to gain some constitutional height about where we are as citizens
We are in a post constitutional moment in our country. Our constitutional institutions, understandings, and practices have all been transformed, over decades, away from the words on the paper into a new arrangement—a new regime if you will—that pays only lip service to the old Constitution. Our system is now much more like an unwritten constitution which operates based on precedents, like the English system. No constitutional amendments have been passed to enact this, but new legal paradigms have been introduced—a “living constitution,” independent agencies, permanent, “expert” civil servants—that have changed the underlying separation of powers at the core of our system.
How did this come to be? The Left at the turn of the nineteenth century were loud critics of the Constitution. Woodrow Wilson wanted an efficient, modern administrative state run by experts that could not be slowed by the Constitution’s separations of powers. He complained that the trouble with the theory of checks and balances, “is that government is not machine, but a living thing. . .. No living thing can have its organs offset against each other, as checks, and live.” But these complaints largely stopped during the historical developments of the twentieth century, and there is rarely any talk of a constitutional amendment on the Left. Why is that? Because the Left quietly adopted a strategy of institutional change that left the constitutional system of separate powers in place but radically perverted how they operated, their incentive structures, and their responsiveness to the American people.
The Left’s legal theorists adopted an approach to interpreting the Constitution based on it being a “living” document, meaning that its provisions should be understood to be malleable, keeping up with a modernizing nation. This was married with increased power assumed by courts, and the notion that nine supreme court justices would make all final decisions without any response from the other branches. Congress created so-called “independent agencies” such as the Federal Reserve or the SEC, meant to be independent from the direction of an elected president, but this principle impacted all the agencies, with career civil servants protected from at-will employment.
Personnel is policy
We see this now with the notion that the DOJ and the FBI are meant to be independent from a president’s priorities. The Centers for Disease Control only has a handful of policy officials appointed by a president—the rest, thousands, are all career officials, making it utterly impossible to manage even in normal times, let alone in a pandemic. And Congress increasingly delegated its authority to make law to the executive branch, evading the responsibility to their voters to make democratic tradeoffs, empowering experts to provide input, but also retaining control at the upper echelons of Congress—congressional leadership, committee chairmen, or senators who can block nominees—to put their thumbs on the scale toward their preferred policy approach. For example, in the Trump Administration there were titanic struggles, involving three or four different cabinet departments, with a constant parade of participating senators, over determining the right blend of ethanol in gasoline, pitting ethanol producers against oil refiners. Making law, away from the floor of the House and Senate, because that is what we were mandated to faithfully execute.
All of this so far is fairly well known, but it gets more complicated the more you study and experience it. Michael Glennon has done us a service by pointing to the concept of “double government” and the work of Walter Bagehot, who Wilson certainly drew on, in describing how the English constitutional system developed from the monarchy holding most power to it holding virtually none. Bagehot drew a distinction between what he called the “dignified institutions”—the monarchy and the House of Lords—that needed to retain its “emotional hold” on the public through its history and theatre, and the so-called “efficient institutions,” such as the House of Commons and the Cabinet, where real power resides.
Glennon writes that, in our system, the same phenomenon has developed. “Together these institutions make up a ‘disguised republic’ that obscures the massive shift in power that has occurred, which if widely understood would create a crisis of public confidence. This crisis has been averted because the efficient institutions have been careful to hide where they begin and where the dignified institutions end.… This promotes continued public deference to the efficient institutions’ decisions and continued belief that the dignified institutions retain real power.” This is double government and describes what we have in the United States. The president and the vast supermajority of the House and Senate are the “dignified” in our system, and the congressional leadership, the committee barons, and the entirety of the administrative state, are the “efficient.”
Grasping the center
What makes it so hard to discern is that the center of gravity of power is spread over the lines of demarcation separating the branches themselves within the Constitution. Yes, power has been delegated to the executive, but the president and the executive branch are no longer quite the same thing, in practice. The agencies care more about the congressional appropriations committees than they do about their president. They draft rules according to the authorizing committees’ interests. And they are all influenced by the values and milieu of a permanent ruling class in a capital city divorced from the everyday concerns and wishes of the American people themselves.
This is the new Constitution. It has been a slow-moving revolution for over a hundred years, but the Constitution we live under is not the one that our Founders gave us, and the Left understands this. They just never say the quiet part out loud. Have you ever wondered why their justices or legislators never get hung up on whether the Constitution allows their preferred policy or strategic approach? Ever. It’s not that they just give lip service to the real one, but it’s because they understand and live and swear allegiance to the new one. Anything they want to do is just new precedent. Whereas conservatives find themselves interpreting a revered document that is no longer in effect, lacking the tools to save their country, and therefore conserving not the Constitution but the new regime. It’s like a marriage that ended over two decades ago, in which one party didn’t tell the other, and the other still thinks the marriage is in effect and operates as such. At some point, reality needs to set in.
So where do we go from here?
Part of the answer is to become radical constitutionalists. What I mean by that is the Founders designed our system for titanic struggle between the branches horizontally and between the states and the federal government vertically. They gave us a separation of powers which was absolutely essential to protect our freedoms and way of life. In fact, James Madison wrote that, “The accumulation of all powers, legislative, executive, and judiciary, in the same hands whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”
And the way to prevent such an accumulation was to give each branch, “the necessary constitutional means and personnel motives to resist encroachments of the others…ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place.” The branches had a healthy fear of each other. It caused them to pause before encroaching.
Think of Marbury v. Madison where Chief Justice John Marshall sided with the new president Thomas Jefferson (of a different party) by saying Secretary of State James Madison didn’t have to deliver Marbury’s commission after all. Why didn’t he just order Madison to deliver the commission? Because he was afraid Jefferson would order him not to and show the Supreme Court to be toothless. Marshall’s revenge was to articulate the beginnings of the Supreme Court’s authority of judicial review. But it was Jefferson who gave us a glimpse of the posture that prevents encroaching powers.
The Right needs to throw off the precedents and legal paradigms that have wrongly developed over the last two hundred years and to study carefully the words of the Constitution and how the Founders would have responded in modern situations to the encroachments of other branches. Originalism should not just be interpreting the words in their original meaning. It should be to understand the logic of the original Constitution and how these authorities should be used unencumbered by the scar tissue resulting from decades of bad cases and bad statesmen.
The Center for Renewing America is trying to secure the southern border, which the Biden Administration refuses to do. Knowing that the Biden Administration is in office for two more years, we have looked to the Constitution for what the Founders would do if one was a current governor of a border state, and lo and behold, we found Article 1, Section 10, Clause 3, articulating that states cannot engage in war making unless invaded. And in our research, we found that they did not mean threats from foreign nation states, but rather smugglers, militias, Indian tribes, etc. We showed that millions of illegal aliens coming across, and Mexican cartels holding operational control of the border, constitute an invasion that allows regional governors to take steps to apprehend and return illegal aliens to the border without the federal government. My point in bringing this up is that you would be surprised at how hard it has been to get conservative lawyers to see this for no other reason than its novelty. That is what has to change. This is where we need to be radical in discarding or rethinking the legal paradigms that have confined our ability to return to the original Constitution.
The death of Queen Elizabeth II has given us a vivid picture of where the Left is trying to go. An executive in a monarch with massive historic grandeur and symbolism and no remaining authority. A parliament where a Cabinet of MPs head the departments of state, staffed by career civil servants with purported expertise. The Left in the U.S. doesn’t want an energetic president with the power to bend the executive branch to the will of the American people. They don’t want a vibrant Congress where great questions are debated and decided in front of the American people and the tradeoffs made there. They don’t want empowered members. They want discouraged and bored back benchers. They want all-empowered career “experts” like Tony Fauci to wield power behind the curtains.
And in America, the scary part is that this regime is now increasingly arrayed against the American people. It is both woke and weaponized. The national security state, with organs like the FBI, NSA, and CIA, are aligned against the American people, who are outraged by this revolution they never assented to. The FBI is investigating concerned parents attending open school board meetings as domestic terrorists. They are putting political opponents in jail. The NSA is surveilling the conversations of citizens.
Therefore, the hour is late and time is of the essence to expose the charade, rally the country against it toward self-government once again, and seize every leverage point to arrest the damage.
The good news is that it’s not too late. We have 75 million voting citizens and more each day. We have nearly 30 Republican governors where red state sanctuaries can be created. We are on the cusp of Republican majorities in the House and Senate. We have institutions like the Center for Renewing America fighting every day to break the political cartels, while providing an ark for those exercising courageous leadership. And we have the reality revealed by the Left’s fight against Donald Trump and his movement. They know it is an existential threat to their regime. If it wasn’t a threat, they would not care. And the lengths they are going to even now shows we have some remaining time.
But the long, difficult road ahead of returning to our beloved Constitution starts with being honest with ourselves. It starts by recognizing that we are living in a post-Constitutional time. Our need is not just to win congressional majorities that blame the other side or fill seats on court benches to meddle at the margins. It is to cast ourselves as dissidents of the current regime and to put on our shoulders the full weight of envisioning, articulating, and defending what a Radical Constitutionalism requires in the late hour that our country finds itself in, and then to do it. That and only that will be how American statesmanship can be defined in the years ahead.
Russell Vought is the president of the Center for Renewing America. He served as Acting Director then as the 42nd Director of OMB for nearly two years during the Trump administration.