Our Constitutional Crisis Has Nothing to Do with James Comey
President Trump’s firing of FBI director James Comey has been pretty big news, and there will be no dearth of continued commentary about what it means. But what rings hollowest in all the commentary surrounding it have been the nearly uniform claims among the left that his firing represents a “constitutional crisis.”
Does the left now care about the United States Constitution? Because that would certainly be newsworthy. This is the same left which, as David Harsanyi of The Federalist reminds us, didn’t utter a peep of disapproval about President Obama’s efforts to “unilaterally legalize millions of people without Congress.” What about the constitutionality of the federal government forcing people to purchase health insurance, forcing private health insurance companies to cap prices for higher-risk clients, setting school lunch menus, peculiarly targeting conservative groups for tax audits, or executive directives to ignore federal immigration law? The left didn’t care about “constitutionality” when all of those things happened during Obama’s presidency, but now are shouting from the pulpit that Donald Trump’s firing of the current FBI director, whose direct role is to “serve at the pleasure of the president,” is somehow some incredible affront to the liberty guaranteed by the Constitution?
The left’s hypocrisy here is certainly stark, but in a way, it is evidence that the term “constitutional crisis” has been thrown around in so many pithy accusations over the years by the left and right that the phrase no longer has any meaning relative to the actual Constitution of the United States.
Consider that Princeton political scientist Keith Whittington suggests that “[c]onstitutional crises arise out of the failure, or strong risk of failure, of a constitution to perform its central functions.”
The “central function” of our Constitution has always been to limit the authority of the federal government, and to clearly enumerate the “few and defined” powers of the federal government to be held in contrast to the “numerous and indefinite” power of state governments, as James Madison wrote in Federalist No. 45.
Yet today, a great many of the things that we consider to be within the federal government’s purview are absolute affronts to the Constitution, and particularly the Tenth Amendment, which Thomas Jefferson held to be the foundation of the Constitution:
I consider the foundation of the Constitution as laid on this ground: “That all powers not delegated to the United States, by the Constitution, nor prohibited to it by the States, are reserved to the States and the People.” To take a single step beyond the boundaries thus specifically drawn around Congress is to take possession of a boundless field of power, no longer susceptible of any definition.
How can we define our nation to be one of limited federal authority when, every day, we see that the restrictions of our Constitution have become meaningless? And if the limitations of the Constitution (again, its central function) have largely become meaningless, how can it be denied that we have long existed in a state of “constitutional crisis?”
A federal Department of Education (DoE), for example, has absolutely no right to exist in the scope of the Constitution. Congress was beyond its tether when it allowed for this executive institution to have been born. Yet billions upon billions of taxpayer dollars have been thrust into this federal institution to regulate our children’s education, and few ever consider the question as to whether there was the right, in the first place, of the federal government to create such an institution with the immeasurable power it has.
Tell me, where in the Constitution can you find any evidence that the federal government has the right to confiscate wealth from Americans, and then to grant or withhold payment to states based upon this federal agency’s evaluation of their adequate adoption of Common Core curricula? And when you cannot find any such evidence that the federal government has such a right granted by the Constitution, wouldn’t you have to admit that the Obama administration’s having done precisely that is in direct violation of the Tenth Amendment, and thus represents a “constitutional crisis?”
Take a look at the Department of Labor, the Environmental Protection Agency, the Federal Communications Commission, or the Department of Transportation. There is equally no allowance given to the federal government, by the Constitution, to regulate these spheres of assumed jurisdiction. All of these agencies, including the DoE, more embody the planks of Communism found in Marx’s Manifesto than our own Constitution. And yet the mere fact that these federal now agencies exist is enough to give us, with our modern sensibilities, the presupposition that the federal government must have a right to exert its influence in said areas of life, however cumbersome or costly they may be, and however absent any validation for that assumed power might be in our nation’s Constitution.
The reality is that very little of anything Washington considers its day-to-day business today has anything to do with the Constitution. Our constitutional crisis is, and for quite some time has been, that the Constitution no longer matters in our political discourse. Our national conversation about whether a thing is right or wrong tends to be a matter of preference and partisan interest. Yes, the Constitution can be opportunistically invoked by either side as substantiation for any outrage. But it is generally an argumentative substrate of convenience, and rarely of principle.
The left is currently demonstrating this with the furor over Comey’s firing, but I sincerely hope that when conservatives talk about “draining the swamp” in D.C., they are suggesting a return to constitutional principles of limited federal authority, because this thing works both ways.
After all, if Ivanka Trump pushes for a $500 billion federal childcare bill (as she’s doing) because it’s her preferred cause du jour, and Congress indeed acts to provide single mothers with taxpayer dollars for childcare, wouldn’t it be very much like the federal overreach that we once claimed Obamacare represented, and thus be a true “constitutional crisis?” Where does the Constitution define that the role of the federal government to seize wealth from taxpayers to provide childcare for American mothers?
If you happen to like this idea so much, you are free to petition your state to enact such a law with your state’s money to subsidize the payments. I believe it would still be wrong, but this is how federalism works, and how the Constitution was intended to work.
We can only make American great again by again making America what the Constitution intended it to be. And we can only do that by working to rein the federal government back within the boundaries that the Constitution defines.