Constitution Check: Is today’s federal government betraying the Founders?

Lyle Denniston looks at recent thorny claims that today’s federal government is too powerful and not shaped by the ideals of the Founding Fathers.

The statement at issue:

“Following another divisive but peaceful election, America’s democracy and the rule of law appear robust. Closer examination, however, reveals that the country’s separation of powers and constitutional order are being progressively undermined, creating a democratic rule of law far different from what the Founders envisioned.”

– Henry Olsen, vice president of the American Enterprise Institute, in a statement November 28 describing an AEI panel discussion scheduled for November 30 in Washington, on the topic: “Founders betrayed? New threats to democracy and rule of law.”

We checked the Constitution, and…

Americans have a commendable habit of recalling what kind of nation the Founders had brought into being 225 years ago, because that helps to put in perspective the conditions now  prevailing in a country that has changed in many and profound ways.  But with that, Americans also have a habit of attempting to claim the Founders as allies in support of this or that political or cultural sentiment of today.

Even considering that those who established the new nation and gave it a Constitution had bequeathed to later generations many enduring principles of government and liberty, it is worth paying attention if there is a shared belief–or at least a suspicion in some quarters–that today’s government is actually betraying those principles.

In the wake of an election that was exceedingly close nationwide and that resulted in a continuation of a national government divided by party (a division that the people obviously and consciously did choose), it is hard to show that power has concentrated in one place or another in Washington, without working checks or balances to restrain it.

Has too much authority gone into the hands of the president and the executive branch?  Has Congress forfeited its right to be a part of the national governing conversation? Has the Supreme Court surrendered the authority it has had since 1803 to say what the law is, constitutionally?

The Founders definitely wanted to separate governing authority, and they did so across three branches of a national government which operate more or less independently of each other. They also wanted to divide government vertically, and did so by setting limits on national power and reserving the rest for the states and the people. That basic design, which James Madison thought was so essential to the preservation of liberty, has not been altered–at least it has not been changed in its basic architecture.

About Constitution Check

  • In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about its meaning and what duties it imposes or rights it protects.

Still, the scholars and panelists at think tanks are probably entitled to some worry over the consequences of a definite, and perhaps even an accelerating, shift of power from the state and local level up to the federal level. That shift, of course, has been going on at least since the time of Abraham Lincoln, and probably before. (Even Thomas Jefferson, that champion of an agrarian and self-reliant America, added his share to national authority after becoming president: remember the Louisiana Purchase, a grand territorial expansion nowhere contemplated in the Constitution.)

But it is fair to ask whether the shift lately has been changing in character. Just what does the national government now do that is illegitimate for it to be doing? Though the core structure of government has not been altered, are its several parts still functioning equally and efficiently? What should the limits be on national authority, and, once such limits have been agreed upon, who is to enforce them?

Those surely are questions of separation of powers. The whole theory of divided government, one might say simplistically, is to keep it divided. One example that checks and balances may not be working is one that comes quickly to the lips of conservative commentators and academics: a massive new federal health care law that supposedly stretched the limits of national power was supposed to be thwarted by the Supreme Court, but was not.

At the same time, there was something of a referendum on that law in this year’s presidential campaign, and those who gave the nation that law survived in office. Should there be some other check on such legislation? Did the election really mediate that separation of powers dispute adequately?

There is, of course, some talk in the academy about a new move toward giving the states a checking power over national legislation that they deem to be excessively intrusive into their sovereign territory. That, though, has been tried before, without particularly satisfying results.

Beyond separation of powers concerns, there is, as the American Enterprise Institute forum suggests, concern over what it calls the rise of “a democratic rule of law.” If that is meant to suggest that the nation’s legal precepts are being shaped coercively by too much political influence, it is worthwhile to look around for some proof of that. Has there been a noticeable rise in politically driven decisions by the nation’s courts?

Retired Justice Sandra Day O’Connor for several years has been waging a campaign across the country to shield the independence of the nation’s courts. She, apparently, does see a threat to that independence. Might it come, in part, from the massive influx of campaign money into the election of judges at the state level? Judicial elections did draw record amounts of cash this year, and much of it no doubt came from donors wanting something in return.

It could be that, if the system of national government has strayed far from what the Founders thought they had designed, the core problem may be the deterioration in the quality of the nation’s politics, and that, perhaps rather than revising the constitutional structure, may be the better arena for reform.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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