It’s usually considered bad form to show up late for a party and then trash the guest of honor. But at a recent Constitution Day event (held two days after the actual Constitution Day), Harvard law professor Michael Klarman attempted not to praise our nation’s governing charter but to bury it.
“The Constitution provided for far less democracy at the federal level than most Americans had become accustomed to at the state level by the 1780s,” Klarman declared. “In addition, it was ratified in a process that was stacked against democratic deliberation. It’s not obvious why we should want today to pay blind obeisance to a Constitution that was adapted in that way and with those substantive provisions.”
The Founders, of course, weren’t trying to set up a democracy. They aimed to create a republic. What’s the difference? A republic, as James Madison explains in Federalist 10, is a “government in which the scheme of representation takes place.” Unlike a democracy in which the citizens themselves pass laws, in a republic such as ours, citizens rule through the representatives they elect.
Under that republican form of government, the people remain sovereign, but they cede certain carefully delineated powers to elected representatives. Thus the Constitution remains what it has been for more than 225 years: a blueprint to limit the reach and scope of the federal government.
Rather than trashing the Constitution, Heritage’s Matthew Spalding urges Americans to return to its principles. “The most difficult task ahead—and the most important—is to restore constitutional limits on government,” he writes. “It won’t be easy to return to the founding principles. We’ll have to move one step at a time and walk back decades worth of bad decisions by members of all three branches of government. But it can be done, if we use the written Constitution as our guide and we believe that it means what it says and says what it means.”
On that point, Klarman actually makes some sense. “The framers thought Congress would actually legislate, strange idea,” he noted. “Instead Congress passes meaningless vague statutes, which are simply turned over to administrative agencies and courts to fill in the gaps within.”
It’s an apt summation of Obamacare, Dodd–Frank, environmental statutes, and other recent “laws” that are passed by Congress but are truly written by bureaucrats in the executive branch. The proper response to this problem isn’t to toss out the entire Constitution and start over; it’s to insist that legislators begin living up to their assigned duties.
“Congress should cease delegating excessive legislative power to administrative agencies,” Heritage’s Bob Moffit says. “Congress needs to stop passing vague laws, seeding bills with broad and even aspirational language and transferring to administrators untrammeled power to fill in the blanks.”
The problem in the U.S. today isn’t the Constitution, and it isn’t a lack of democracy. The problem is that so many elected officials don’t take their constitutional duties seriously.