The Single Most Important Thing We Can Do To Save the Constitution
If James Madison rose from his grave today, he’d be astonished. Not that a demented, corrupt scoundrel was now serving in the same office he once held—as astonishing as that is. Nor that the federal government had metastasized into a liberty devouring leviathan that towers over his great state of Virginia. What would surprise him is that, after nearly 250 years, his Constitution, no matter how tattered and torn, has endured.
Our classrooms have abandoned an appreciation for the profound genius of the Founders and the institutional gifts they gave us. Instead, classrooms breed contempt for our history. The Founders’ priceless legacy is the notion that government is established to protect men’s liberty and, because men are no angels, that government must be limited, accountable, and divided.
Even today, the most elementary constitutional lesson is probably still taught: the legislative branch makes the laws, the executive branch enforces the laws, and the judicial branch adjudicates the laws—but today that’s a lie. Unlike the obvious panoply of deceit cascading from every corner of the government and complicit news media, this lie, although more toxic to our Constitution and more dangerous to our freedoms, goes largely unrecognized.
We have an all-encompassing de facto fourth branch of government—the administrative state, the magnum opus of the progressive movement. The movement’s name itself is diabolical. Who isn’t for progress? Faster, bigger, better—it’s the zeitgeist of America. But the Progressives wanted a different type of progress: to progress beyond the Constitution.
Teddy Roosevelt was our first Progressive president but his real damage was running for a third term under the Bull Moose party, thereby splitting the Republican ticket and ushering in Woodrow Wilson, a true progressive. He was an intellectual blinded by his good intentions and bred with a malevolent contempt for a Constitution that obstructed his ambitions.
Wilson, our only president with a Ph.D. (indisputable proof it should be disqualifying), was corrupted at John Hopkins University by a faculty heavily influenced in the Hegelian tradition (belief in an all-encompassing organic state as opposed to American individualism). Wilson’s 294-page thesis was an all-out assault on our Constitution: “The period of constitution-making is passed now. We have reached a new territory in which we need new guides, the vast territory of administration.” Wilson viewed the Founders’ separation of powers as an “unpleasant wearing friction” depriving expert administrators of the “means of making its authority complete and convenient.”
To Wilson, the Constitution was an anachronistic relic written in the age of fighting kings and wholly incompatible with the modern day. Appealing to “the science” of the day, he claimed “The government is not a machine, but a living thing. It is accountable to Darwin, not Newton. Living political constitutions must be Darwinian in structure and in practice.” They must evolve.
Article V of the Constitution describes precisely how it might evolve but, impatient for change, Wilson had a better idea: “All that progressives ask or desire is permission to interpret the Constitution according to the Darwinian principle.” So modest, so scientific.
But what Wilson wanted was to radically restructure it: “If it could not stretch itself to the measure of the times, it must be thrown off and left behind.” Wilson wanted the government to be run by an “administration of executive agents...virtually supreme in all things.” At his inauguration, it is a wonder the Good Book itself didn’t leap from his hand as he swore to “preserve, protect and defend the Constitution.”
Despite Wilson’s scholarly rhetoric, he was only mildly successful in his diabolical assault on liberty. As history has repeatedly shown—from the Reichstag fire to 9/11 to COVID—it takes a crisis for men to willingly surrender their freedom. For the Progressives, that crisis was the Great Depression.
Image: Surreal Constitution by Andrea Widburg.
Wilson was the father of the Administrative State but FDR was its architect. For an unprecedented four terms, FDR “interpreted” a new Constitution complete with a fourth branch. A branch where executive, legislative, and judicial power were all wrapped up into one. The Progressive’s dream of efficiency was the Founder’s nightmare of tyranny. FDR gave us an alphabet soup of virtually unchecked agencies whose “experts” could regulate every aspect of American life.
To understand the scale of the outrage, the Constitution was written on four pages; the U.S. Code, the law Congress wrote, is 2652 pages; the Code of Federal Regulation, that is, the law of the Administrative State, written by unelected bureaucrats, approved by no one, accountable to no one, is 175,496 pages.
No better example of the unconstitutional tyranny of the Administrative State is the harrowing story of Hillsdale College. Founded in 1844 on the principle of furnishing “all persons who wish, irrespective of nation, color, or sex a literary and scientific education,” it was the first to educate both freed slaves and women even before the Civil War. In the mid-1970s, the Department of Health Education and Welfare (“HEW”) insisted that, because Hillsdale received federal funds, it was required to execute a Title IX compliance form that would have subjected it to all federal regulations. (This requirement, incidentally, originated in HEW, not in Congress.) The college argued, however, that it did not receive federal funds; instead, some of its students received federal student loans.
After six years of fighting at the bureaucratic level, Hillsdale finally put the matter before a real Article III court. However, this was not the path to easy resolution. The system is set up so that the process is the punishment insofar as it bankrupts people fighting the government. In one wetlands case, the EPA demanded $37,500/day for noncompliance, with the potential of a failed Article III appeal doubling the penalty.
Hillsdale’s loyal supporters made it possible to fight on. In the 6th Circuit, Hillsdale defied the odds and won again but a similar case that Groves Community College brought in the 3rd Circuit failed. With a conflict in the two circuits, the matter finally ended before the Rehnquist Supreme Court which, sadly, ruled with the agency: If one student took a dime of federal money, then the school must comply. Unbroken, Hillsdale and Grove, along with 16 other courageous colleges, now refuses to allow a single federal penny to enter its school, directly or indirectly.
Madison’s Constitution has survived, even if in practice it is unrecognizable from his original vision, but within it lies the blueprint for returning liberty to “we the people.” Today, one of the most important administrative state cases sits before the Supreme Court asking whether the agencies should be given complete deference, Chevron deference, for deciding ambiguities and omissions in Article I law.
While the entire administrative state needs to be abolished, just as it didn’t appear overnight, it won’t recede overnight as well. The first small step back from the abyss may start with this decision. To paraphrase the great Ronald Reagan, “if fascism ever comes to America, it will come in the form of an administrative state.”
Huck Davenport is a pseudonym.
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