- - Tuesday, July 5, 2022

Editor’s note: This is one in a series examining the Constitution and Federalist Papers in today’s America.

We often celebrate the fundamental freedoms articulated in the Bill of Rights and advance the notion that the liberties secured to us as Americans therein are somehow unique or particular to the American experiment. That is not completely correct.



Though we rightfully treasure these sacred freedoms, many nations and governments throughout history have articulated similar, if not identical, protections and rights. Take, for instance, the following provisions from the 1977 Constitution of the USSR: “Citizens … are guaranteed freedom of speech, of the press, and of assembly, meetings, street processions and demonstrations. … Citizens are guaranteed freedom of conscience, that is the right to profess or not to profess any religion.”

Really? James Madison and others at the nation’s founding referred to such statements of liberty as mere “parchment barriers,” meaning they were good only until a majority or a dictator decided to suppress them, thereby rendering the rights not worth the paper they were written on.

The late Justice Antonin Scalia had a few choice words on this point: “It is a mistake to think the Bill of Rights is the defining, or even the most important, feature of American democracy. Virtually all the countries of the world today have bills of rights. You would not feel your freedom secure in most of them.”

What then is most essential? The structural protections in the Constitution. Here we have two primary categories: vertical, meaning the allocation of power by and between the national government and the states; and horizontal, meaning the separation of powers by and between the three branches of the national government. Again, Justice Scalia: “Tyrannies have long lists of rights. What they do not have is structural restraints on the power of government.”

What is broken today? How have the structural protections integral to and embedded in our constitutional structural framework failed? Why are our liberties less firm than they should be?

Federalist No. 47 provides illumination: “When the legislative and executive powers are united in the same person or body, there can be no liberty …” (quoting Montesquieu). The most important issue today regarding structural abuse of the Constitution is the intentional and improper delegation of congressional authorities to the executive branch, meaning that two of the three branches are in breach of the jobs assigned to them by the Founders. Congress is negligent, and the executive is imperial. Consequently, freedom suffers.

Routinely nowadays, Congress does not legislate. Its members speak and pontificate on any number of policies, ideas, concerns and issues via hearings and the like, but these activities are largely disassociated from the true legislative function of lawmaking. Congress’ primary focus seems to be collecting revenue from citizens and then spending it to secure reelection. Substantive legislating is nonexistent.

The result? The executive branch assumes authority and de facto legislates via executive order and rule-making. Congress is more than willing to defer because it allows lawmakers to bemoan issues absent true accountability since it never considers and votes on answers. The executive is more than willing to oblige because the White House can fill in the specifics of existing laws to fit its policy objectives through myriad bureaucracy.

What then is to be done? Congress should do its job and guard jealously the obligation to legislate, tackling controversial matters. As an example, the Clean Air Act was last amended in 1990. By all accounts, the language is vague at best regarding the regulation of carbon dioxide, a greenhouse gas. It is not one of the six criteria pollutants, and authors of the 1990 Clean Air Act amendments largely agree that Congress did not empower the Environmental Protection Agency to regulate carbon.

Yet, what do we have? The EPA regulates carbon absent guidelines or direction by Congress. If carbon emissions are an existential threat to mankind, as is often pronounced by overzealous environmentalists, then at least Congress ought to tackle it, providing specific power to the EPA to regulate it and defining how to regulate it. In absence of that, the EPA is acting in an undisciplined and improper manner, and, as the Supreme Court last week ruled, in at least one instance unconstitutionally by violating the “major questions” doctrine.

Many of our problems today as a republic stem from a nonadherence to the Constitution as opposed to any deficiencies in it. It is time to get back to the basics and conduct ourselves in accord with the structural protections proscribed by the Founders. Freedom and liberty would then flow.

Scott Pruitt was the administrator of the Environmental Protection Agency and the attorney general of Oklahoma.

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