Draining the Swamp: An Impossible Task?

 

The administrative state, also known as the Deep State and The Swamp, has been with us for a long time. Recently, however, I heard Professor John Marini talk about his work in “unmasking” the administrative state and I realized the future of the Republic is precarious, if not endangered. I learned about his work when he appeared on Mark Levin’s Sunday night Fox News show, Life, Liberty & Levin.

Professor Marini is one of the few writers who talk about the attack on our constitutional system by the workings of the administrative state:

It might seem odd to look to an avuncular professor of political philosophy to provide the coherence that populist politics needs but cannot supply for itself, but at least in America this makes sense, since the teachings of political philosophy, starting with natural rights, go back further than the Founding itself. What’s far more strange than this is the rarity of such efforts — Marini is one of a small number of writers on politics who have made it their work to question the legitimacy of rule by experts and to expose it as an attack on the constitutional system of the separation of powers, balances and checks, and accountability to the electorate.

The most obvious attack on our government occurred with the Presidency of Woodrow Wilson. He believed that the Constitution was an archaic document that if used at all, needed to be modified periodically, in order to serve the times. Rather than rely on the separation of powers to enact legislation, Wilson supported the governance of experts to decide the needs of the country. Rather than relying on Congress to legislate, that body would only need to provide oversight of the experts who would create the governing rules. The largest source of these experts was academia, where new areas of “science” were being identified on a regular basis.

The Supreme Court has also been complicit in assisting the administrative state:

Marini expresses particular disappointment that the U.S. Supreme Court, rather than protecting separation of powers as defined by the Constitution, has instead facilitated the establishment of the administrative state. Its opinion in Humphrey’s Executor v. United States (1935) was particularly egregious in that it affirmed the power of Congress to create quasi-legislative, quasi-judicial agencies within the executive branch largely free from presidential control. Put another way, it authorized agencies technically within the executive branch to exercise substantially non-executive functions.

Even Justice Antonin Scalia, perhaps the Supreme Court’s greatest defender of the Constitution’s separation of powers was inattentive to the ravages that the administrative state wreaked on the structural provisions of the document. In 1984, two years before Scalia’s elevation to the Court, it announced in Chevron U.S.A. v. National Resources Defense Council (1984) what has come to be known as Chevron deference: the doctrine that courts will defer to an administrative agency’s reasonable interpretation of the ambiguous terms of a statute that it administers.

Essentially, once Congress enacts a statute, it has no control over the agency that implements it; but when an agency enacts a rule, that agency decides what it means and has the final say on how it is implemented. That rule has the same effect as a law.

The explosion of rules and regulations over the last 25 years is mind-boggling:

For an analysis of the mixed results of slowing the enactment of new regulations and removing existing regulations, you can read here.

We now have a Congress that has distanced itself from the populace and we are governed by a group of elitist experts:

The separation of powers, and the governing institutions, no longer serve as the principle defenders of a regime of civil and religious liberty. The rights of individuals, and the rule of law itself, are in the hands of the institutions of the administrative state. Consequently, the paramount problem is how to re-establish partisanship on behalf of constitutional government.

Unfortunately, the Republicans have deferred to the Progressives revision of the separation of powers:

The most politically successful, or progressive, party is the one that has most fully embraced the administrative state as fundamentally just, as the good which justifies self-interest on behalf of progress. The conservative party cannot quite accept the alienation posed by the rejection of the past that is required by rational or administrative rule. But it has accepted the political and moral conditions established by historicist, or progressive, thought. As a result, it has lost the understanding of the theoretical meaning that had established the good of constitutionalism. Not surprisingly, progressive parties are confident of their purpose, whereas conservative parties are merely cautious

So those are the facts. We have a Congress that has relinquished its purpose as the legislative branch of government to the administrative state. It cites its role as oversight, but given the number of rules and regulations that have been passed until recently, they probably have little idea of which rules those agencies are creating, except when the most egregious are made (and are widely publicized). Fortunately, the President has demanded the rolling back of many regulations, and restricted the number of regulations that can be written, but given the massive power that has been given to these agencies, and the reliance on their “expertise,” Marini says it will extremely difficult to re-establish the separation of powers and the power balance. He presents a dismal look at the future:

There is no guarantee that Donald Trump can or will succeed in restoring political rule. He has the opportunity to establish a new political landscape, one that is not yet recognizable. It seems likely that the new partisanship he has brought to bear will be at odds with many of the organized interests in Washington. Those interests will defend themselves and their alliances with the bureaucracy. Still, Trump must establish a governing coalition, and this requires the cooperation of a legislature that has been the anchor of the administrative state.

Will Donald Trump receive the support he needs? Do too many Republicans support the status quo? Do they see Donald Trump as a threat to their way of governing?

Donald Trump has been striving to drain the swamp and upend the deep state. He still has a big job in front of him.

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  1. fidelio102 Inactive
    fidelio102
    @fidelio102

    One reason why it is so difficult to drain the swamp is because the level of corruption in Washington is disturbingly high.

    A major contributory factor, seen of course from the point of view of an incorruptible Brit transplanted to (of all states) Florida, is the unhealthy role of cash in the electoral process.

    I am not speaking of the major corruption scandals involving Hillary Clinton and Joe Biden (at last ABC is beginning to ask questions about the activities of Biden père et fils in Ukraine and China), but more generally the special interests behind individual congresspersons’ elections.  Is there any member of Congress who is not lobbying for some special interest group in order to give value for campaign contributions?

    Not that corruption is limited to the Hill.  It is now well-known that George  Soros is funding DA candidates across the country who subscribe to his “liberal criminal reform” agenda, Philadelphia DA Larry Krasner being the classic example. 

    You just can’t drain a swamp so extensive in thirty months.  

    • #31
  2. fidelio102 Inactive
    fidelio102
    @fidelio102

    One reason why it is so difficult to drain the swamp is because the level of corruption in Washington is disturbingly high.

    A major contributory factor, seen of course from the point of view of an incorruptible Brit transplanted to (of all states) Florida, is the unhealthy role of cash in the electoral process.

    I am not speaking of the major corruption scandals involving Hillary Clinton and Joe Biden (at last ABC is beginning to ask questions about the activities of Biden père et fils in Ukraine and China), but more generally the special interests behind individual congresspersons’ elections.  Is there any member of Congress who is not lobbying for some special interest group in order to give value for campaign contributions?

    Not that corruption is limited to the Hill.  It is now well-known that George  Soros is funding DA candidates across the country who subscribe to his “liberal criminal reform” agenda, Philadelphia DA Larry Krasner being the classic example. 

    You just can’t drain a swamp so extensive in thirty months.  

    • #32
  3. DonG Coolidge
    DonG
    @DonG

    Cal Lawton (View Comment):

    MichaelKennedy (View Comment):
    Representative Donald S. Beyer Jr., Democrat of Virginia, said in a statement. “The Trump administration must put a stop to forcing federal employees from choosing either their jobs or their homes in Virginia.”

    Oh really…go count the number of federal offices moved to West Virginia via the late Senator Byrd.

    Let’s move those govt. jobs to Detroit and Gary, IN and Biloxi and …

    • #33
  4. Chris Hutchinson Coolidge
    Chris Hutchinson
    @chrishutch13

    MichaelKennedy (View Comment):
    Caro’s biography of Johnson points out that the Senate, before Lyndon cheated his way in in 1948

    It is such a shame Coke Stevenson didn’t win, as he should have. Can you imagine how different the country would be?

    • #34
  5. WI Con Member
    WI Con
    @WICon

    Susan Quinn (View Comment):

    MichaelKennedy (View Comment):

    I blame a good bit of this on the McCain-Finegold Law. Certainly Wilson disrupted things but the Civil War had also made states’ rights indefensible. What McCain and Finegold did, largely I think because McCain was humiliated by his role in the Keating Five scandal, was to force the Congressional members to spend their time raising money while the staffs wrote the laws in their name . The Keating scandal which gave us this bad law came about because four Democrats got McCain enmeshed in order to give the appearance of bipartisan corruption if caught. McCain was already a bit of a stiff necked type. His history as a POW gave him a whiff of sainthood. When questioned about whether he was a resident of the state he wished to represent, he told the questioner that his longest place of residence was the Hanoi Hilton.

    The law was purported to get money out of politics, like all such “reforms.” Does anyone think it accomplished that?

    I’m a bit skeptical about blaming McCain-Feingold for the huge amount of time Congress takes to raise money for re-election, although it may be a factor. Marini said there was an explosion of agencies set up during LBJ’s presidency, so that’s another contributor.

    As much as I like to blame McCain as typical of the ‘Bi-Partisan’ GOPe-type that has aided the State, the Left in their plans, I’d argue that Baseline Budgeting and the budgetary ‘auto-pilot’ we’re on has more to do with the growth of gov’t.

    Still find it interesting how both the GOP House and Senate have managed to keep Freedom Caucus types away from the levers of control.

    • #35
  6. I Walton Member
    I Walton
    @IWalton

    Indeed.  I couldn’t bring up the video, but I agree 100% with the summary presented.  I’ve been ranting about the threat for some years now.  The Federal government is remote, abstract, often well meaning but can’t do what it pretends to do because of its very nature.  The founders limited Federal power assigning most tasks to the States  because the articles of confederation simply couldn’t work to defend the nation but they were aware that Federal power was a threat to the freedom they were trying to establish.  It worked until the last century because our political leaders believed in it.  As it is now it can only end the way every nation (not conquered by other nations)  has ended.  Power centralizes gradually then accelerates until  those who exercise power and receive the wealth begin to strangle those who produce.   Not on purpose, it’s just like all of us, they just want more power and wealth but they don’t have to compete in a market place or extract it from people they know and who know them and can remove them.  We say it must be this way  because the civil war amendments require Federal power, but it can’t be fixed at the Federal level.   Democratic governance must be local, raised to higher levels only when vital and only Defense, trade and  money at the national level

      Washington bureaucrats do things, often trying to do what they think is right, but which is remote, irrelevant, indeed ignorant.  They go home at night, go to local schools, shop in local stores, etc. like the rest of us, but during the day what they do is remote to that life.  The same chemistry exists in highly populated states and giant cities.  Those that govern do things that are removed from their lives, are abstract, remote and mostly harmful.  Local government is what matters and will be limited if there is freedom  because the folks who exercise the power are close to and part of the folks who pay.  As size and remoteness grow, the chemistry changes.  There are many complexities that have to be dealt with by larger political actors, and some things require states to cooperate and it’s complex and not easy and often expensive, but as soon as they are taken over by the nation the cost benefit changes and decay begins. 

    • #36
  7. WI Con Member
    WI Con
    @WICon

    Susan Quinn (View Comment):

    WillowSpring (View Comment):

    Susan Quinn: Will Donald Trump receive the support he needs? Do too many Republicans support the status quo? Do they see Donald Trump as a threat to their way of governing?

    • Not from the establishment republicans, democrats or media.
    • Yes
    • Yes

    This is a fairly old (2017) tweet from Bill Kristol, but I don’t think he has changed since then:

    Obviously strongly prefer normal democratic and constitutional politics. But if it comes to it, prefer the deep state to the Trump state.

    OMG! Seriously? Then again, he’s part of the swamp. And fighting change, tooth and nail.

    Kristol may be hopeless but I wonder about all the staffers and interns that have worked under him? What about the staffers and interns that have worked under the sainted Paul Ryan? Did they learn to ‘muck out the barn’ and continue to fund the beast? 

    Hoping that YAF and Turning Points USA are analogous to the Federalist Society in transforming the Judiciary.

    • #37
  8. Kevin Schulte Member
    Kevin Schulte
    @KevinSchulte

    WI Con (View Comment):
    Still find it interesting how both the GOP House and Senate have managed to keep Freedom Caucus types away from the levers of control.

    Parliamentary procedures of the majority in the party. Bought and paid for rats. Set in stone by the majority leader.

    Mitch has shown if he wants something it happens. The house is harder to control. However, Paul Ryan has shown, if he doesn’t want something, it didn’t happen.

    Can’t defund planned abortionhood with control of both houses and the presidency. Holy cow, did that strip some masks off.

    • #38
  9. Susan Quinn Contributor
    Susan Quinn
    @SusanQuinn

    Rodin (View Comment):

    @susanquinn, thank you for this post. I started a post on this but due to my misunderstanding about how “save” and “preview” interact I lost more than half my post and gave it up. This is an extremely important topic because it explained how the electorate has become irrelevant in the operation of government. Get that? The electorate is irrelevant to the operation of government! “We the People” is on life support. (sigh)

     

    If you are still having trouble with Save and Preview, send me a PM; I now use them a lot. And we are clearly in alignment!

    • #39
  10. Susan Quinn Contributor
    Susan Quinn
    @SusanQuinn

    Cal Lawton (View Comment):

    That video has been chopped for infringement, but here is Dr. Marini at Hillsdale in DC:

    https://www.youtube.com/watch?v=bIN2XdB_axc

    Thank you, @callawton! It looks like a good one. I’ll take a look.

    • #40
  11. Susan Quinn Contributor
    Susan Quinn
    @SusanQuinn

    WI Con (View Comment):
    Still find it interesting how both the GOP House and Senate have managed to keep Freedom Caucus types away from the levers of control.

    Excellent point, @wicon! We only see Mark Meadows and Jim Jordan on the sidelines, although I love to see Jordan at committee hearings–what a lion!

    • #41
  12. Jon1979 Inactive
    Jon1979
    @Jon1979

    One of the clarifying things I think has occurred over the past 10-15 years is the realization that there is far more of a collective ideological hive-mind among the various bureaucracies in Washington than most people had previously believed — i.e., there were certain departments, like Labor, Education, EPA, State, that were considered the main bastions of liberal think in Washington, while energy/law enforcement/military departments were seen as where conservatives were more likely be be housed, with other departments falling somewhere in-between the two.

    But over the past 15 years, you’ve seen more and more indications that while the lower-levels of places like the FBI, the Pentagon or the CIA might lean less to the left than your average EPA office does, that’s not true of the higher levels, especially after eight years of a liberal Democrat in the White House. Even before the current scandal involving the Steele dossier came out, a lot of people on the right had decided that even the areas of the federal government that previously had been considered sympathetic to their positions were now more focused on growing their own bureaucracies and power,  and the people in charge had no problem working with the party more favorable to bigger government.

    Once you feel no one in Washington shares your views, and all areas are more concerned about growing their own influence, you end up with a large part of one political party feeling they have no stake in anything D.C. does. So ‘Drain the Swamp’ becomes shorthand for taking down the power of a federal bureaucracy that is now seen at the highest levels as being completely in the tank for one political party, as opposed to having at least some balance between the two sides in the various agencies. And conservatives’ war on Washington will continue as long as they continue to feel Washington is at war with them, to the point that those with power have no qualms about weaponizing it against their ideological opponents.

    • #42
  13. Susan Quinn Contributor
    Susan Quinn
    @SusanQuinn

    Jon1979 (View Comment):

    One of the clarifying things I think has occurred over the past 10-15 years is the realization that there is far more of a collective ideological hive-mind among the various bureaucracies in Washington than most people had previously believed — i.e., there were certain departments, like Labor, Education, EPA, State, that were considered the main bastions of liberal think in Washington, while energy/law enforcement/military departments were seen as where conservatives were more likely be be housed, with other departments falling somewhere in-between the two.

    But over the past 15 years, you’ve seen more and more indications that while the lower-levels of places like the FBI, the Pentagon or the CIA might lean less to the left than your average EPA office does, that’s not true of the higher levels, especially after eight years of a liberal Democrat in the White House. Even before the current scandal involving the Steele dossier came out, a lot of people on the right had decided that even the areas of the federal government that previously had been considered sympathetic to their positions were now more focused on growing their own bureaucracies and power, and the people in charge had no problem working with the party more favorable to bigger government.

    Once you feel no one in Washington shares your views, and all areas are more concerned about growing their own influence, you end up with a large part of one political party feeling they have no stake in anything D.C. does. So ‘Drain the Swamp’ becomes shorthand for taking down the power of a federal bureaucracy that is now seen at the highest levels as being completely in the tank for one political party, as opposed to having at least some balance between the two sides in the various agencies. And conservatives war on Washington will continue as long as they continue to feel Washington is at war with them, to the point that those with power have no qualms about weaponizing it against their ideological opponents.

    An insightful comment, @jon1979. There is definitely a culture in bureaucracy that says we’ve got the power and we will use it. And within that attitude is, “Get over it. We’re not going anywhere.” It’s pretty discouraging.

    • #43
  14. CJ Inactive
    CJ
    @cjherod

    The answer is “yes,” draining the Swamp is impossible. As Hans-Hermann Hoppe brilliantly argues in “Democracy – The God that Failed,” our current state of affairs should not surprise anyone when you have public ownership of the State. Certainly the Framers tried their best to set up a scheme whereby a central government would be perpetually self-limiting. We can all see how spectacularly that has failed. The State inevitably takes anything meant to limit it and turns it on its head to justify its own expansion. The ratchet always goes in one direction–always. To put it bluntly, the Framer’s theory about the efficacy of separation of powers has been proven false.

    I live with optimism and joy because I recognize the comical incompetence of our human rulers, and the wondrous sovereignty of God.

    Conservatives should stop wasting their time fighting over the zombie corpse of late-stage democracy, and begin to realize instead that the State is our enemy.

    • #44
  15. Kevin Schulte Member
    Kevin Schulte
    @KevinSchulte

    CJ (View Comment):

    The answer is “yes,” draining the Swamp is impossible. As Hans-Hermann Hoppe brilliantly argues in “Democracy – The God that Failed,” our current state of affairs should not surprise anyone when you have public ownership of the State. Certainly the Framers tried their best to set up a scheme whereby a central government would be perpetually self-limiting. We can all see how spectacularly that has failed. The State inevitably takes anything meant to limit it and turns it on its head to justify its own expansion. The ratchet always goes in one direction–always. To put it bluntly, the Framer’s theory about the efficacy of separation of powers has been proven false.

    I live with optimism and joy because I recognize the comical incompetence of our human rulers, and the wondrous sovereignty of God.

    Conservatives should stop wasting their time fighting over the zombie corpse of late-stage democracy, and begin to realize instead that the State is our enemy.

    On the merits I agree with you. However, if the Lord’s return is not for a generation or two. Shouldn’t we be about preserving as much liberty as possible for our progeny ?

    The only way to do that is to remain in the struggle.

    • #45
  16. CJ Inactive
    CJ
    @cjherod

    Kevin Schulte (View Comment):

    CJ (View Comment):

    The answer is “yes,” draining the Swamp is impossible. As Hans-Hermann Hoppe brilliantly argues in “Democracy – The God that Failed,” our current state of affairs should not surprise anyone when you have public ownership of the State. Certainly the Framers tried their best to set up a scheme whereby a central government would be perpetually self-limiting. We can all see how spectacularly that has failed. The State inevitably takes anything meant to limit it and turns it on its head to justify its own expansion. The ratchet always goes in one direction–always. To put it bluntly, the Framer’s theory about the efficacy of separation of powers has been proven false.

    I live with optimism and joy because I recognize the comical incompetence of our human rulers, and the wondrous sovereignty of God.

    Conservatives should stop wasting their time fighting over the zombie corpse of late-stage democracy, and begin to realize instead that the State is our enemy.

    On the merits I agree with you. However, if the Lord’s return is not for a generation or two. Shouldn’t we be about preserving as much liberty as possible for our progeny ?

    The only way to do that is to remain in the struggle.

    Yes, I agree. The question is, what to struggle over. Trying to control the State is a dead end. What I think we need a Christian abolitionist movement that recognizes that the State is a moral abomination.

    I think the biggest obstacle is the lack of faith people have in non-coercive means to protect their security. It can and would be done in a free society. Would it be perfect and prevent all crime? Of course not.

    A territorial monopoly of violence is never defended from universal moral principles, but instead with appeals to situational ethics (consequentialism/utilitarianism).

    • #46
  17. WillowSpring Member
    WillowSpring
    @WillowSpring

    CJ (View Comment):
    The ratchet always goes in one direction–always. To put it bluntly, the Framer’s theory about the efficacy of separation of powers has been proven false.

    I think I mostly agree, but I doubt that the Framer’s thought that we would actually pass amendments that would reduce the power of states (17th Amendment, making Senators like Senior House members instead of representing the States themselves)

    I also think they would be surprised that the legislators wrote laws that due to their vagueness and complexity gave most of the authority to an unelected bureaucracy.

    Maybe it would help to limit laws to some humanly readable length like 100 pages (or some low limit, certainly no longer than the constitution itself) and insist that they are read before a vote.  I remember trying to work through the ObamaCare law and it was impossible many references to other laws and so on.  It they say that 100 pages is not enough, then they are trying to cram too much into a single law.

    • #47
  18. Susan Quinn Contributor
    Susan Quinn
    @SusanQuinn

    CJ (View Comment):
    Certainly the Framers tried their best to set up a scheme whereby a central government would be perpetually self-limiting. We can all see how spectacularly that has failed.

    I’ve thought about this further, @cjherod, and to me, it’s too drastic an assessment. I think we could say that what they drew up is flawed, wounded, struggling, but I’m not ready yet to say it has failed.

    • #48
  19. Kevin Schulte Member
    Kevin Schulte
    @KevinSchulte

    Susan Quinn (View Comment):

    CJ (View Comment):
    Certainly the Framers tried their best to set up a scheme whereby a central government would be perpetually self-limiting. We can all see how spectacularly that has failed.

    I’ve thought about this further, @cjherod, and to me, it’s too drastic an assessment. I think we could say that what they drew up is flawed, wounded, struggling, but I’m not ready yet to say it has failed.

    If it fails, it is we who have failed it by not abiding by it.

    Not to say it is perfect, but to say it was sufficient.

    • #49
  20. CJ Inactive
    CJ
    @cjherod

    WillowSpring (View Comment):

    CJ (View Comment):
    The ratchet always goes in one direction–always. To put it bluntly, the Framer’s theory about the efficacy of separation of powers has been proven false.

    I think I mostly agree, but I doubt that the Framer’s thought that we would actually pass amendments that would reduce the power of states (17th Amendment, making Senators like Senior House members instead of representing the States themselves)

    I also think they would be surprised that the legislators wrote laws that due to their vagueness and complexity gave most of the authority to an unelected bureaucracy.

    It should go without saying that the Framers would be surprised by what has happened–if they’d expected it, they would have tried something else! But, given how smart they were, it would not have taken them long to see the root problem. (We have the huge benefit of hindsight, so I don’t assign much blame to them.)

    One of the key insights of the Framers was that human nature is corrupted by power, so they attempted to put mechanisms in place to guard against it. The fatal flaw is that it required their successors to act in good faith to work within and maintain those mechanisms. So here we have a contradiction–corruptible man cannot be trusted with power, so we must put man in charge of the mechanisms to limit his power. The ostensible safeguards to liberty are seized, recast as weapons against that liberty.

    • #50
  21. Susan Quinn Contributor
    Susan Quinn
    @SusanQuinn

    CJ (View Comment):

    WillowSpring (View Comment):

    CJ (View Comment):
    The ratchet always goes in one direction–always. To put it bluntly, the Framer’s theory about the efficacy of separation of powers has been proven false.

    I think I mostly agree, but I doubt that the Framer’s thought that we would actually pass amendments that would reduce the power of states (17th Amendment, making Senators like Senior House members instead of representing the States themselves)

    I also think they would be surprised that the legislators wrote laws that due to their vagueness and complexity gave most of the authority to an unelected bureaucracy.

    It should go without saying that the Framers would be surprised by what has happened–if they’d expected it, they would have tried something else! But, given how smart they were, it would not have taken them long to see the root problem. (We have the huge benefit of hindsight, so I don’t assign much blame to them.)

    One of the key insights of the Framers was that human nature is corrupted by power, so they attempted to put mechanisms in place to guard against it. The fatal flaw is that it required their successors to act in good faith to work within and maintain those mechanisms. So here we have a contradiction–corruptible man cannot be trusted with power, so we must put man in charge of the mechanisms to limit his power. The ostensible safeguards to liberty are seized, recast as weapons against that liberty.

    That is what is happening. Even though evil and deviousness are not unique to our times, and neither is abuse of power, I don’t think think the Founders could have imagined just how destructive future government employees could be. I don’t know if any of us would have guessed this 100 years ago.

    • #51
  22. Dr. Bastiat Member
    Dr. Bastiat
    @drbastiat

    WillowSpring (View Comment):

    This is a fairly old (2017) tweet from Bill Kristol, but I don’t think he has changed since then:

    Obviously strongly prefer normal democratic and constitutional politics. But if it comes to it, prefer the deep state to the Trump state.

    Holy freakin’ Toledo…

    • #52
  23. Clifford A. Brown Member
    Clifford A. Brown
    @CliffordBrown

    CJ (View Comment):

    WillowSpring (View Comment):

    CJ (View Comment):
    The ratchet always goes in one direction–always. To put it bluntly, the Framer’s theory about the efficacy of separation of powers has been proven false.

    I think I mostly agree, but I doubt that the Framer’s thought that we would actually pass amendments that would reduce the power of states (17th Amendment, making Senators like Senior House members instead of representing the States themselves)

    I also think they would be surprised that the legislators wrote laws that due to their vagueness and complexity gave most of the authority to an unelected bureaucracy.

    It should go without saying that the Framers would be surprised by what has happened–if they’d expected it, they would have tried something else! But, given how smart they were, it would not have taken them long to see the root problem. (We have the huge benefit of hindsight, so I don’t assign much blame to them.)

    One of the key insights of the Framers was that human nature is corrupted by power, so they attempted to put mechanisms in place to guard against it. The fatal flaw is that it required their successors to act in good faith to work within and maintain those mechanisms. So here we have a contradiction–corruptible man cannot be trusted with power, so we must put man in charge of the mechanisms to limit his power. The ostensible safeguards to liberty are seized, recast as weapons against that liberty.

    Yet, we have always had the solution within our power, put there by the Framers in Article V. Has a defacto 4th branch of government emerged? Place real checks on it with an amendment that formalizes real limitations on the administrative state. Same for the courts, which demonstrated almost from their outset that they were NOT the “least dangerous branch” and needed real, real time checks that would prevent or immediately remedy overreach.

    We limited presidents after FDR broke the unwritten constitutional provision created by George Washington’s example. We’ve changed the voting age, finally gave half the population the right to vote… funny how none of these unleashed some wild rewriting of the whole Constitution. 

    • #53
  24. CJ Inactive
    CJ
    @cjherod

    Clifford A. Brown (View Comment):
    Yet, we have always had the solution within our power, put there by the Framers in Article V. Has a defacto 4th branch of government emerged? Place real checks on it with an amendment that formalizes real limitations on the administrative state.

    I have noticed that when a government program invariably fails to achieve its stated objectives, the program never really goes away. Instead a new layer (more regulation, a whole new program) is slapped on top of it, to mask the stench and rot that lies beneath. This seems to be the approach suggested here.

    Clifford A. Brown (View Comment):
    Same for the courts, which demonstrated almost from their outset that they were NOT the “least dangerous branch” and needed real, real time checks that would prevent or immediately remedy overreach.

    This recognizes that the Constitution is a failure, while at the same time ignoring the flaw that I mentioned. The old checks having failed, who do you imagine are these men who will enforce these new checks? Who are these better angels who will be tasked with preventing the knaves and dupes from becoming the stewards of your new layer of checks?

    Clifford A. Brown (View Comment):
    We limited presidents after FDR broke the unwritten constitutional provision created by George Washington’s example. We’ve changed the voting age, finally gave half the population the right to vote… funny how none of these unleashed some wild rewriting of the whole Constitution.

    I don’t understand. Are you suggesting that provisions of the Constitution that were intended to limit the government have not been reinterpreted to expand the government? Are you suggesting that the Constitution has worked to keep the government small? Or are you merely making the narrow observation that the literal text of the document has not been significantly altered?

    • #54
  25. Clifford A. Brown Member
    Clifford A. Brown
    @CliffordBrown

    CJ (View Comment):

    Clifford A. Brown (View Comment):
    Yet, we have always had the solution within our power, put there by the Framers in Article V. Has a defacto 4th branch of government emerged? Place real checks on it with an amendment that formalizes real limitations on the administrative state.

    I have noticed that when a government program invariably fails to achieve its stated objectives, the program never really goes away. Instead a new layer (more regulation, a whole new program) is slapped on top of it, to mask the stench and rot that lies beneath. This seems to be the approach suggested here.

    Clifford A. Brown (View Comment):
    Same for the courts, which demonstrated almost from their outset that they were NOT the “least dangerous branch” and needed real, real time checks that would prevent or immediately remedy overreach.

    This recognizes that the Constitution is a failure, while at the same time ignoring the flaw that I mentioned. The old checks having failed, who do you imagine are these men who will enforce these new checks? Who are these better angels who will be tasked with preventing the knaves and dupes from becoming the stewards of your new layer of checks?

    Clifford A. Brown (View Comment):
    We limited presidents after FDR broke the unwritten constitutional provision created by George Washington’s example. We’ve changed the voting age, finally gave half the population the right to vote… funny how none of these unleashed some wild rewriting of the whole Constitution.

    I don’t understand. Are you suggesting that provisions of the Constitution that were intended to limit the government have not been reinterpreted to expand the government? Are you suggesting that the Constitution has worked to keep the government small? Or are you merely making the narrow observation that the literal text of the document has not been significantly altered?

    The Constitution is not a government program. Read the 11th and 12th Amendments. Why were they proposed and ratified so quickly after the base document was ratified? Problems identified, problems fixed. 

    There were no effective checks on the Article III courts. Once they pronounced themselves the final and supreme authority on the law and the Constitution, the threat was obvious but the president and Congress played along. The right answer then and now was to place real, effective checks, such as creating a state legislatures’ veto on Supreme Court decisions and a recall process on federal judges and justices.

    Now we see that the size of government in a nation of over 300 million people exposes additional gaps in the original design. Of course, the Framers recognized this likelihood and provided for a proper, constitutional means of addressing new conditions. 

    Article V, not the whims of 5 lawyers draped in black robes..

    • #55
  26. CJ Inactive
    CJ
    @cjherod

    Clifford A. Brown (View Comment):
    The Constitution is not a government program.

    What is the Constitution? I know, at least, that it is not a contract, since nobody now existing has ever signed it.

    • #56
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