«EXECUTIVE SUMMARY The Constitution is increasingly eroded with each passing year. That is a tragedy given the volume of blood spilled by patriots to ...»
RESTORING THE RULE OF LAW
The Constitution is increasingly eroded with each passing year. That is a
tragedy given the volume of blood spilled by patriots to win our country’s freedom
and repeatedly defend it over the last 240 years. Moreover, the declining relevance
of our Nation’s governing legal document is dangerous. Thomas Hobbes’s observation more than 350 years ago remains applicable today: the only thing that separates a nation from anarchy is its collective willingness to know and obey the law.
But today, most Americans have no idea what our Constitution says.
According to a recent poll, one-third of Americans cannot name the three branches of government; one-third cannot name any branch; and one-third thinks that the President has the “final say” about the government’s powers.1 Obviously, the American people cannot hold their government accountable if they do not know what the source of that accountability says.
The Constitution is not just
and immaterial to average Americans; it also is increasingly ignored by government officials. Members of Congress used to routinely quote the Constitution while debating whether a particular policy proposal could be squared with Congress’s enumerated powers. Such debates rarely happen today. In fact, when asked to identify the source of constitutional authority for Obamacare’s individual mandate, the Speaker of the House revealed all too much when she replied with anger and incredulity: “Are you serious?”2 And, while the Supreme Court continues to identify new rights protected by the Constitution’s centuries-old text, it is telling that the justices frequently depart from what the document actually says and rely instead on words or concepts that are found nowhere in the document. That is why one scholar observed that “in this day and age, discussing the doctrine of enumerated powers is like discussing the redemption of Imperial Chinese bonds.”3 Abandoning, ignoring, and eroding the strictures of the Constitution cheapens the entire institution of law. One of the cornerstones of this country was that ours would be a Nation of laws and not of men. The Constitution is the highest such law and the font of all other laws. As long as all Americans uphold the Constitution’s authority, the document will continue to provide the ultimate defense of our liberties. But once the Constitution loses its hold on American life, we also lose confidence in the ability of law to protect us. Without the rule of law, the things we treasure can be taken away by an election, by whims of individual leaders, by impulsive social-media campaigns, or by collective apathy.
The Constitution provides a better way—if only we were willing to follow it.
The Constitution imposes real limits on Congress and forces its members to dotheir jobs rather than pass the buck. The Constitution forces the President to work with Congress to accomplish his priorities rather than usurping its powers by
circumventing the legislative process with executive orders and administrative fiats. And the Constitution forces the Supreme Court to confront the limits on its powers to transform the country. Although the Constitution provides no assurance that any branch of government will make policy choices you like, the Constitution offers legitimacy to those choices and legitimate pathways to override those choices.
The people who make those choices would have to stand for election, they would have to work with others who stand for election, and crucially, they would have to play by rules that we all agree to beforehand rather than making them up as they go along.
Of course, the Constitution already does all of this. And thus it bears emphasis at the outset that the Constitution itself is not broken. What is broken is our Nation’s willingness to obey the Constitution and to hold our leaders accountable to it. As explained in the following pages, all three branches of the federal government have wandered far from the roles that the Constitution sets out for them. For various reasons, “We the People” have allowed all three branches of government to get away with it. And with each power grab the next somehow seems less objectionable. When measured by how far we have strayed from the Constitution we originally agreed to, the government’s flagrant and repeated violations of the rule of law amount to a wholesale abdication of the Constitution’s design.
That constitutional problem calls for a constitutional solution, just as it did at our Nation’s founding. Indeed, a constitutional crisis gave birth to the Constitution we have today. The Articles of Confederation, which we adopted after the Revolutionary War, proved insufficient to protect and defend our fledgling country.
So the States assembled to devise what we now know as our Constitution. At that assembly, various States stepped up to offer their leadership visions for what the new Constitution should say. Virginia’s delegates offered the “Virginia Plan,” New Jersey’s delegates offered the “New Jersey Plan,” and Connecticut’s delegates brokered a compromise called “Connecticut Plan.” Without those States’ plans, there would be no Constitution and probably no United States of America at all.
Now it is Texas’s turn. The Texas Plan is not so much a vision to alter the Constitution as it is a call to restore the rule of our current one. The problem is that we have forgotten what our Constitution means, and with that amnesia, we also have forgotten what it means to be governed by laws instead of men. The solution is to restore the rule of law by ensuring that our government abides by the Constitution’s limits. Our courts are supposed to play that role, but today, we have judges who actively subvert the Constitution’s original design rather than uphold it.
Yet even though we can no longer rely on our Nation’s leaders to enforce the Constitution that “We the People” agreed to, the Constitution provides another way forward. Acting through the States, the people can amend their Constitution to force their leaders in all three branches of government to recognize renewed limits on federal power. Without the consent of any politicians in Washington, D.C., “We
the People” can reign in the federal government and restore the balance of power between the States and the United States. The Texas Plan accomplishes this by
offering nine constitutional amendments:
I. Prohibit Congress from regulating activity that occurs wholly within one State.
II. Require Congress to balance its budget.
III. Prohibit administrative agencies—and the unelected bureaucrats that staff them—from creating federal law.
IV. Prohibit administrative agencies—and the unelected bureaucrats that staff them—from preempting state law.
V. Allow a two-thirds majority of the States to override a U.S. Supreme Court decision.
VI. Require a seven-justice super-majority vote for U.S. Supreme Court decisions that invalidate a democratically enacted law.
VII. Restore the balance of power between the federal and state governments by limiting the former to the powers expressly delegated to it in the Constitution.
VIII. Give state officials the power to sue in federal court when federal officials overstep their bounds.
IX. Allow a two-thirds majority of the States to override a federal law or regulation.
Our Nation was built on one principle above all others—the Rule of Law. As James Madison explained in the Federalist: “If men were angels, no government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”4 As the
Founders envisioned it, the rule of law offered the solution to that great difficulty:
the law could check the ambitions of men who were far from angels, and the law could moderate the excesses of governments that were far from benevolent.
The miracle of our Nation’s birth is that the Founders were willing to sacrifice their personal ambitions and egos to the rule of law. The Founders could have picked a monarch and made themselves courtiers. But they knew first-hand what happened when a king, who was a law unto himself, had license to do whatever he wanted. They knew first-hand how much blood was spilled to liberate our country from the yoke of a lawless ruler. And they knew, in John Adams’s words, that “good government is an empire of laws.”5 They responded by laying down a law—our Constitution—that protected the rights of the governed and limited the powers of government. That law is external to the will of any one person or group of people; it was laid down before our lifetimes and will endure long after we are gone. And as long as both the people and the government agree to be governed by the Constitution rather than the caprice of individual rulers, then ours will “be a government of laws, and not of men.”6 It is difficult to overstate the significance of the Founders’ insights and accomplishments in framing our Constitution. Our Constitution was a singular victory for popular sovereignty, in which “We the People” came together to ordain and establish a government that was accountable to law and democracy. That is why Arthur L. Goodhart, who held the Oxford Chair of Jurisprudence between 1931 and 1951, described our Constitution as “the most important single legal document in the history of the world.”7 Today, however, the Constitution and the rule of law are under unprecedented attack in our Nation’s capital. The President touts his unilateral power to change the law when he does not like the results of the democratic process.
Congress is full of members who care more about the trappings of power than actually performing their constitutional roles. And the Supreme Court is dominated by individuals who substitute their personal policy preferences for the Constitution and laws of the United States.
There have been many casualties in Washington, D.C.’s war on the rule of law. But perhaps no one has lost as much as the States. Under the Founders’ original design for our Nation, “the States will retain, under the proposed Constitution, a very extensive portion of active sovereignty.”8 The same
-5RESTORING THE RULE OF LAWConstitution that created our government of laws, and not of men, was intended to preserve the States as coequal and sovereign governments because they were closest—and hence the most accountable—to the people. The States were supposed to be energetic and powerful, and in the spirit of the Constitution’s checks-andbalances, State leaders were supposed to have the power and opportunity to check any attempt by federal officials to overstep their bounds. And Madison argued that was essential to the constitutional plan because strong States would provide “a double security... to the rights of the people. The different governments [viz., state and federal] will control each other, at the same time that each will be controlled by itself.”9 Indeed, the entire structure of the Constitution was premised on the idea that the States would be stronger than the national government. As Madison explained, “[t]he State government will have the advantage of the Federal government, whether we compare them in respect to the immediate dependence of the one on the other; to the weight of personal influence which each side will possess; to the powers respectively vested in them; to the predilection and probable support of the people; to the disposition and faculty of resisting and frustrating the measures of each other.”10 It was not as if Madison made those observations unthinkingly. The Constitution’s chief critics—who were collectively known as the “Anti-Federalists”— penned a series of essays under pseudonyms like “Federal Farmer,” “Brutus,” “Cato,” “Agrippa,” “An Old Whig,” and “Centinel.” And the Anti-Federalists principal complaint with the Constitution was premised on their fear that it would turn the States into “useless and burdensome” relics.11 Madison passionately rebutted those concerns by insisting that the States would remain the most powerful and important organs of American government.
If only we had heeded Madison’s solutions to the Anti-Federalists’ concerns, our Nation would not be mired in this constitutional conundrum today. But over the last 227 years, in fits and starts, through baby steps and giant leaps, our government lost its way; it left the Constitution in its rearview; and it pushed States into the roadside ditch.
Consider a few examples:
In the 1930s, the federal government started making law through an alphabet soup of administrative agencies—even though such agencies have no basis whatsoever in the Constitution. As every school kid learns, the Constitution specifies how a bill becomes a law: it has to pass both houses of a democratically elected Congress by a majority vote and be presented to a democratically elected President for his signature. Today, though, nameless and faceless bureaucrats can bypass that process and make federal “law”—and even preempt the
States’ lawmaking efforts—without so much as telling a single person who ever stood for election at any level of government.
In the mid-1930s, the Supreme Court began to routinely enforce the views of five unelected judges rather than the text of the Constitution.
Eighty years later, that “living” document has evolved into a Frankenstein that somehow affords a constitutional right to make sexually explicit “animal crush” videos but denies a constitutional right for a woman in Connecticut to protect her home from being forcibly taken from her by private developers. And the same handful of Supreme Court justices who embrace those results can veto enormous swaths of state law—ranging from the broadest laws of statewide significance down to and including every criminal judgment rendered by a State court in an individual case.