- - Tuesday, December 15, 2020

Editor’s note: This is the latest in a series “To the Republic: Rediscovering the Constitution.” Click HERE to read the series.

In Federalist 51, James Madison noted the difficulties of loaning power to a government run by men and not angels. A degree of government is necessary to maintain order and protect liberty, but too much of it can quickly devolve to tyranny. How do you empower it to protect the liberty of the people and yet not grow so powerful that it threatens their liberty? How do you “oblige it to control itself”?

The answer lies in one of the oddities about the American structure of government. Every law passed under the Constitution ultimately is backed by penalties for breaking it. But there is no penalty for breaking the Constitution itself.

How can it stand without external enforcement? Because, unlike other laws, the Constitution is self-enforcing.



Every mother knows exactly how that works. When there’s one slice of pie and two hungry brothers, Mother employs a simple rule to assure both brothers reach an amicable agreement. One brother slices. The other chooses.

The ambitions of one check and contain the ambitions of the other. One brother cannot abuse his powers precisely because of the powers given to the other.

The Founders placed this elegant simplicity into the heart of the Constitution, where it has protected Americans from abuse ever since.

Indeed, it would be a very different story if the same brother who sliced the pie also chose his piece. Madison warned that combining all the powers in the same hands was the foundation of tyranny.

Thus, Article I, the first and longest article of the Constitution, begins, “All legislative powers herein granted shall be vested in a Congress of the United States.” The Founders wanted an ugly food fight anytime a decision was to be made. They wanted every voice in the country to be heard and to have the proposition held up to every conceivable light.

Once a law was made, they didn’t want a menagerie of squabbling prima donnas trying to carry it out. Thus, Article II establishes a single executive will, “The executive power shall be vested in a President of the United States.” It later commands him to “take care that the laws be faithfully executed.”

One brother makes law but cannot enforce it; the other enforces law, but cannot make it. One brother declares war but cannot wage it; the other wages war but cannot declare it. One brother appropriates money but cannot spend it; the other spends money but cannot appropriate it.

And Article III — Mother — establishes the separate judicial branch to settle disputes arising from the exercise of these powers.

There is, however, one caveat. This only works if the powers are separated and evenly distributed. That, in turn, only works if the people who are loaned these powers remain obedient to the Constitution. And that, in turn, only works if “We the People” insist on it through the votes we cast in every election.

The moment the American people cease to insist on fidelity to the Constitution, that document and the freedom and prosperity it has protected for nearly a quarter of a millennium could be forfeit overnight.

That’s worth pondering today. For the last century, government bureaucracies have slowly acquired and combined the powers the Founders meticulously separated. Today, executive agencies make 10 times the laws passed by the legislative branch. The same agency that makes these laws enforces them. Those accused of violating them must first face administrative courts run by the same agencies that made the law, accused the defendant of breaking them and often profit from the fines they exact. Increasingly, they operate independently from the president and are thus increasingly impervious to elections.

More recently, proposals have emerged to place the Supreme Court under the domination of the legislative branch by packing it at will. Impeachment has been used in a manner that would render the president a mere functionary of Congress. Earmarks — the practice of combining the power to appropriate with the power to spend — threaten the next session.

The Founders often worried that a generation might someday arise who didn’t understand or appreciate the fountainhead of their freedom. President Reagan often warned that freedom isn’t in our DNA, but must be learned to be valued and carefully passed on from one generation to the next. Will ours prove to be the generation the Founders and Reagan feared?

⦁ Rep. Tom McClintock represents California’s 4th Congressional District.

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