This past weekend the nation marked the 230th birthday of our
Constitution. This past Sunday, many Americans of all political persuasions who
were aware of Constitution Day praised the Framers of that document and expressed
gratitude that they live under its protections.
They celebrated 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 praised our system of separated powers, where no person
has the power to be lawmaker, investigator, prosecutor, judge, jury, and
executioner. And they cheered 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 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.
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