The “Living” Constitution – Guest Essayist: Will Morrisey
Contributors to this series of articles have shown that executive branch of the United States government, cheered on by Congress and the Supreme Court and abetted by what has become a fourth branch of government—the federal bureaucracy or administrative state—has for some time almost routinely overridden the separation of powers the Framers designed for the protection of American rights. In The Federalist, Publius had argued that the Constitution itself amounts to a bill of rights, preventing the usurpation of powers by the executive by giving the legislative and judicial branches powerful incentives to resist such encroachment.
Whether it is the Environmental Protection Agency ignoring Congress and issuing edicts on global warming, federal land grabs in Alaska, bureaucratic regulations on immigration, the confused and onerous burdens of the Common Core program in our schools or the Affordable Care Act in our hospitals and doctors’ office, warrantless surveillance of American citizens by the National Security Agency, partisan misuse of the Internal Revenue Service, or the overuse of Congressional-Executive agreements and sole executive agreements in lieu of treaties, these essays have described an executive and administrative power that no longer merely executes laws enacted by Congress but itself legislates, with or without Congressional organization, and often with no rebukes from a complaisant Supreme Court.
Why is this happening?
We can enter the trail at any one of the points listed, but let’s use the last one, the international “agreements” that have largely taken the place of treaties since World War II. Some fourteen years ago, John C. Yoo—then as now a professor at Berkeley Law School—wrote an illuminating article in the Michigan Law Review discussing the history of treaties and Congressional-Executive agreements.[i] Yoo later on joined the George W. Bush administration in the Office of the Attorney General and authored rules governing the War on Terror and authorizing the use of “enhanced interrogation techniques” as one instrument of that war. So we aren’t talking about a man who could even remotely be called a libertarian when it comes to Constitutional law. This makes his work all the more useful for our purposes, exempt as it is from any suspicion that it was authored by an enemy of executive power.
Among the principal defenders of the constitutionality of such agreements, Yoo mentions Bruce Ackerman, Sterling Professor of Law and Political Science at Yale Law School and author of (among other books) The Failure of the Founding Fathers, We the People: Foundations and its sequel, We the People: Transformations. Ackerman argues for a constitutional theory that combines the popular sovereignty of Senator Stephen Douglas with the Progressivism of Woodrow Wilson and such prominent recent Supreme Court Justices as William J. Brennan and Thurgood Marshall.
As Yoo documents the matter, between 1789 and 1839 the United States entered into sixty treaties and twenty-seven non-treaty international agreements. But “as the nation entered World War II… statutory devices or even unilateral executive action came to overwhelm the treaty process; from 1939 to 1989, we enacted 702 treaties but 11,698 non-treaty agreements. Writing in 2001, Yoo observes that almost all of these international agreements concerned trade (Bretton Woods, NAFTA, the WTO and the like), but such areas as arms controls treaties and treaties concerning the environment and human rights were still firmly under treaty law. Obviously, only a decade and a half later, this is no longer the case. Non-treaty agreements are now standard practice in all areas of international dealings, not only trade.
Ackerman applauds the trend. Reacting to the failure of the Versailles Treaty (with its concomitant League of Nations), progressives began a push to make international agreements legally equivalent to treaties. One might suppose that the Constitution would block any such effort, but not the Constitution in the hands of progressives. According to Ackerman, the 1944 election of Franklin D. Roosevelt not only gave popular endorsement to his intention to frame and participate in the new League-of-Nations substitute, the United Nations, but actually transformed the Constitution itself. The election, you see, was a revolutionary moment in which public opinion endorsed a fundamental change in Constitutional practice, entitling the executive and legislative branches to bypass the treaty-making power of the Constitution. By 1947, Ackerman claims, such “interchangeability” had “become part of the living Constitution”—the foreign-policy counterpart of the sweeping domestic constitutional changes wrought by FDR’s smashing victory in the 1936 election—which centralized power in Washington, thus compromising federalism and transferred a considerable part of lawmaking power from Congress to the administrative state now ensconced in the capital city. A “New Deal,” indeed.
But where does this notion of the “living Constitution” come from? And what does it mean?
The phrase predates the New Deal. It is first seen in Woodrow Wilson’s 1908 study, Constitutional Government in the United States, one of his last scholarly efforts before he left the presidency of Princeton College for the governorship of New Jersey and eventually for the White House. Wilson’s scholarship had long served the political agendum of progressivism, and Constitutional Government didn’t depart from that project. Like all progressives, Wilson maintains that each epoch of human history has had its own distinctive mindset, useful for that time but largely obsolete in subsequent times. If the Declaration of Independence said that all men are created equal insofar as they possess the unalienable rights of life, liberty, and the pursuit of happiness, well, that “leaves to each generation of men the determination of what they will do with their lives, what they will prefer as the form and object of their liberty, in what they will seek their happiness.” As “history” works itself out, through the generations, “leaders” arise to guide them. “A living people needs not a master but a leader”; fortunately, “great passions, when they run through a whole population, inevitably find a great spokesman.” Whereas the Founders had so structured government as to refine and enlarge the public views—to make self-government reasonable government—Wilson is confident that passions will bring a people greatness. The leader is the most articulate spokesman for the ruling passion of his time.
Specifically, in this new, twentieth century we must abandon the Constitutional theory of the Founders. “The makers of the Constitution constructed the federal government upon a theory of checks and balances which was meant to limit the operation of each part and allow to no single part or organ of it a dominating force; but no government can be successfully conducted upon so mechanical a theory.” Rather, we need a government in which a leader may “bring the several parts of government into effective cooperation for the accomplishment of particular common objects—and party objects at that.” The mechanical theory of the Founders derived from the natural-science mechanics of Isaac Newton. But “in our own day, whenever we discuss the structure or development of anything, whether in nature or in society, we consciously or unconsciously follow [Charles] Darwin,” not Newton. Gravitation and the image of planets in orbit have given way to a view of nature that has become historicized or progressive—evolutionary, not stable.
Here is where the “life” of the “living” Constitution comes in. “The trouble with the [Newtonian] theory [of the Founders] is that government is not a machine, but a living thing. It falls, not under the theory of the universe, but under the theory of organic life. It is accountable to Darwin, not Newton…. Living political constitutions must be Darwinian in structure and in practice.” The Constitution “is a vehicle of life, and its spirit is always the spirit of the age”—evolving, developing, aiming at ever-superior life-forms. History—now conceived as ever-evolving toward better forms of society—becomes a series of Ackerman-ish “revolutionary moments.”
To Wilson, this fits exactly with approval of government as primarily an executive—that is to say, a presidential—affair. The president represents the ruling political party, itself on the cutting edge of historical progress as demonstrated by its electoral success, its ability to capture the ruling passion of popular opinion. “He is also the political leader of the nation.” “The President is at liberty, both in law and conscience, to be as big a man as he can. His capacity will set the limit.” In particular, he enjoys “very absolute” control over foreign policy.
In Wilson’s constitutional—some might say “anti-constitutional”—theory we see the genesis of government by executive leadership. Buttressed by a professional bureaucracy staffed by men and women adept at “the science of administration”—the title of then-professor Wilson’s most important early essay—the president becomes the good shepherd of the spirit of the age, sharing our current ruling passion, leading us ever closer to the final “end” of historical progress, that land of peace and prosperity that will leave all of our passions satisfied, all of our dreams fulfilled.
If Americans today find themselves perplexed at government by executive orders and executive “agreements,” it is only because they’ve not seen how such government was carefully prepared by men like Wilson and Franklin Roosevelt, and not in some secret place as a part of some dark conspiracy, but openly and in print in writings that often date back more than a century. The essays here at Constituting America—on the Constitution itself and The Federalist—outlined what the Founders gave us: the framework of self-government for the American people. Now, this series on executive power illustrates how this framework has been dismantled and replaced by advocates of what has been variously called “The New Freedom” (Wilson), the New Republic (journalist Herbert Croley), the New Deal (FDR), the New Frontier (JFK), the Great Society (LBJ), the New Spirit (Jimmy Carter), and finally a movement of “Hope and Change” (Barack Obama). New and great, hopeful and ever-changing, because some of us suppose that they know those old Constitutional principles to be obsolete, and that they know further—and better than we do—how to lead us into the Future.
Will Morrisey holds the William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College; his books include Self-Government, The American Theme: Presidents of the Founding and Civil War and The Dilemma of Progressivism: How Roosevelt, Taft, and Wilson Reshaped the American Regime of Self-Government.
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[i] John C. Yoo: “Laws as Treaties: The Constitutionality of Congressional-Executive Agreements.” Michigan Law Review, Vol. 99, February 2001, pp. 757-852.
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