Guest Essayist: Andrew Langer


In the previous essay, we discussed how classical history (i.e., the history of Greek and Roman political structures) informed the debates over the Constitution—and how James Madison drew on history to make the case for the Constitution’s immediate necessity and importance.

In this essay, we focus again on Federalist #38, but this time discussing how the same examination of historic political structures informed the architecture or structure of the U.S. Constitution itself.

Madison and most, if not all, of the other founders were students of classical history, and well-understood how governance had changed through the ancient Mediterranean societies. They learned how Athenians’ political choices compared and contrasted with those of the Spartans and Minoans, and how the Roman Republic came into existence, but eventually turned into an imperial tyranny.

When reviewing these governments, which ranged from benign monarchies to democracies to despotic autocracies, the founders came to a stunning conclusion: that these historic examples pointed to the necessity of a balancing of powers and interests. Concentrate too much power in one person or one body, and that power could become corrupted as happened in Rome as respect for the rule of law degenerated over time, giving rise to the imperial dictatorship.  Rely too much on pure democracy, and it could descend into the rule of the mob, something equally feared.

As Benjamin Franklin is alleged to have said, “Democracy is two wolves and a lamb voting on what to have for lunch. Liberty is a well-armed lamb contesting the vote.”

The statement is a truism (regardless of whether it was Franklin who said it first!), reflected, in turn, in how the architects of the Constitution ultimately designed our federal government. Our system is one that is rooted in the principles of democratic governance—we elect our legislators and cast votes in a presidential electoral system.

But in order to stave off the possibility of “mobocracy,” those democratic ideals are balanced with republican limitations—from a Bill of Rights which underscores limitations on how government exercises its power, to the idea that each branch of our federal government has its powers specifically enumerated.

Consider, for example, the voicing of unpopular ideas—a subject hotly debated today. There are some, there have always been some, who would like to see unpopular speech outlawed or severely restricted, whether it is so-called “hate speech” or speech that is sharply critical of America, to the point of the burning of a flag. In a pure, Athenian-style democracy, the majority declaring this speech outlawed would be it—the “mob” would have spoken.

But our Constitution recognizes that it is unpopular speech that requires the greatest amount of protection; popular speech requires no protection, after all. So, regardless of what the majority of citizens might demand, and regardless of what the Congress might enact, or the Executive Branch attempts to pursue through the administrative process, the First Amendment presents a counterbalance to a majoritarian tyranny.

It is that explicit assignment of powers, and the careful balancing of those powers against one another, that serves to protect the rights of individual Americans.

In Article I, Section 8 of the Constitution, the legislative powers of Congress are laid out. In Article II, the Executive Branch is given the power to interpret and carry out the laws Congress has passed. Under Article III, the Judicial Branch enforces those laws and ensures that both the laws that have been passed and the interpretation and administration of those laws by the Executive Branch withstand constitutional scrutiny.

In theory, this is supposed to ensure that no branch is more powerful than any other branch—and that the creation and administration of federal policies does not injure or harm the individual rights of American citizens.

In theory.

The ongoing concern is similar to that which brought the aforementioned descent of ancient Rome from republic to dictatorial empire—an increasing disrespect for the regular order of governmental processes and the overall rule of law. In Rome, as chaos and corruption grew, first Julius Caesar and then Augustus offered Romans greater safety and security in exchange for their democratic political rights. The result was the end to any real sort of Roman republic and centuries of despotism.

Again, it was Benjamin Franklin who warned, “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.”

In modern America, we see this playing out in a myriad of ways—from those who seek to simply circumvent the Constitution’s rules to those who use Congress’ political propensity to pass vaguely defined pieces of legislation as a pretext to increase the power of the federal Executive Branch.

Because of the manner in which power is distributed and balanced, if Congress passes a piece of legislation in which the subject-matter is vaguely defined, the Executive Branch can, in turn, define it. The result is a situation in which, while the Executive Branch isn’t creating law out of “whole cloth,” the power of the Executive Branch is expanded.

Take the Clean Water Act of 1972, a piece of legislation with the noble purpose of dealing with America’s polluted waterways of the 1970s—rivers were, literally, catching on fire! In it, Congress declared that we cannot “pollute” a “navigable water of the United States.”

But Congress didn’t define “pollution,” didn’t define “navigable,” didn’t define “water of the United States”—and for a half-century, all of those terms have been subjected to intense debate as various presidential administrations have offered a varying degree of definitions, some focusing on the plain-language of the act, but others which seem to encircle not just America’s major rivers but even disparate and unconnected bodies of water, or even patches of dry land, that would otherwise have been under the regulatory purview of state and local governments (the definition of “Waters of the United States” or “WOTUS” is once again under debate in Washington).

In the end, this balancing of interests is supposed to protect the population at large to prevent the kind of overreach we have been discussing and to also ensure that we “look before we leap” in terms of public policy solutions. This is especially true when it comes to foreign policy.

The President is Commander-in-Chief of the U.S. armed forces and the military operates under the auspices of the federal Executive Branch.  But it is only Congress that can declare war.  The President, and his duly-designated officers, have the power to negotiate treaties, but it is within the power of the Senate to ratify them. Moreover, despite the power of the President and the Executive Branch to respond to national emergencies and international crises, and setting aside the legitimacy of the War Powers Resolution which asks the President to report on such actions within 48 hours of them being undertaken, Congress retains the power of the “purse strings” i.e., the power to actually fund the operations of the U.S. government, so the Executive Branch is further restrained.

In all, taking a cue from the governments of the Greek city-states as well as ancient Rome, the founders knew that there had to be a greater division of powers and balancing of interests, that good democratic principles have to be checked by the limitations that a republican form of government provides. When it works, this balance serves to protect the rights of individual Americans.

But we have to make sure that all of the branches are working properly, lest the American experiment become a cautionary tale that scholars two millennia from now examine as an example of what not to do.

Andrew Langer is President of the Institute for Liberty.

 

 

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