Congress’s re­pair job

The Washington Post Sunday - - SUNDAY OPINION - georgewill@wash­

Un­like most of the 111 that pre­ceded it, the 112th Congress must be­gin the process of restor­ing the na­tional regime and civic cul­ture the Founders be­queathed. This will re­quire re­viv­ing the rule of law, re­assert­ing the rel­e­vance of the Con­sti­tu­tion and af­firm­ing the re­al­ity of Amer­i­can ex­cep­tion­al­ism.

Many con­gres­sional Repub­li­cans, and surely some Democrats with in­sti­tu­tional pride, think Congress is be­ing dero­gated and marginal­ized by two de­vel­op­ments. One is the apoth­e­o­sis of the pres­i­dency as the main­spring of the govern­ment and the cus­to­dian of the nation’s soul. The sec­ond is the grow­ing au­ton­omy of the reg­u­la­tory state, an ap­pa­ra­tus re­spon­sive to pres­i­dents.

The eclipse of Congress by the ex­ec­u­tive branch and other agen­cies is Congress’s fault. It is the re­sult of lazy leg­is­lat­ing and lax over­sight. Too many “ laws” ac­tu­ally are lit­tle more than pi­ous sen­ti­ments en­dors­ing so­cial goals — en­vi­ron­men­tal, ed­u­ca­tional, etc. — the mean­ings of which are later de­fined by ex­ec­u­tive-branch rule-mak­ing. In cre­at­ing faux laws, the na­tional leg­is­la­ture of­ten cre­ates leg­is­la­tors in the ex­ec­u­tive branch, mak­ing a mock­ery of the sep­a­ra­tion of pow­ers. And Congress makes a mock­ery of it­self when the Fed­eral Reg­is­ter, a com­pi­la­tion of the reg­u­la­tory state’s ac­tiv­i­ties, is a more im­por­tant guide to gov­er­nance than the Con­gres­sional Record.

Un­for­tu­nately, courts long ago made clear that they will not se­ri­ously in­hibit Congress’s scan­dalous del­e­ga­tion of its law­mak­ing func­tion to oth­ers. So Congress should stop whin­ing about the ac­tions of the EPA (emis­sions con­trols), the FCC (“net neu­tral­ity”), the In­te­rior Depart­ment (re­clas­si­fi­ca­tions of pub­lic lands) and other agen­cies and should start reread­ing Shake­speare: “ The fault, dear Bru­tus, is not in our stars, but in our­selves, that we are un­der­lings.”

Con­ser­va­tive sen­a­tors pass­ing through the Capi­tol re­cep­tion room should pon­der the por­trait of Ohio’s Robert Taft (d. 1953), who was con­ser­vatism when it stressed con­gres­sional supremacy. Amer­ica was born in re­coil against an over­bear­ing ex­ec­u­tive’s “re­peated in­juries and usurpa­tions” (the Dec­la­ra­tion of In­de­pen­dence); mod­ern con­ser­vatism was born in re­ac­tion against ex­ec­u­tive ag­gran­dize­ment, first by Franklin Roo­sevelt, then by his acolyte Lyndon John­son.

But be­gin­ning in 1968, Repub­li­cans won five of six and then seven of 10 pres­i­den­tial elec­tions, and ex­pe­ri­enced rap­ture with Ron­ald Rea­gan. Then they lost their whole­some wari­ness of ex­ec­u­tive power. To­day, con­ser­va­tives should curl up with a good book by a found­ing edi­tor of Na­tional Re­view — James Burn­ham’s “Congress and the Amer­i­can Tra­di­tion.”

Re­gard­ing the rel­e­vance of the Con­sti­tu­tion, you must re­mem­ber this: Rep. Nancy Pelosi, asked about the con­sti­tu­tion­al­ity of the health-care leg­is­la­tion — a sub­ject now be­ing se­ri­ously lit­i­gated— said, “Are you se­ri­ous? Are you se­ri­ous?” She was se­ri­ous.

She se­ri­ously can­not com­pre­hend that any­one se­ri­ously thinks James Madi­son was se­ri­ous when he wrote (Fed­er­al­ist 45), “ The pow­ers del­e­gated by the pro­posed Con­sti­tu­tion to the fed­eral govern­ment are few and de­fined.” Un­for­tu­nately, for too long too many supine courts have flinched from en­forc­ing the doc­trine of enu­mer­ated pow­ers, and too many Con­gresses have en­joyed eman­ci­pa­tion from that doc­trine. So re­straint by the ju­di­ciary must be re­placed by con­gres­sional self-re­straint.

The idea of Amer­i­can ex­cep­tion­al­ism is ob­nox­ious to pro­gres­sives, who, ev­i­dently un­aware of the idea’s long pedi­gree (it traces to Alexis de Toc­queville) and the rich schol­ar­ship con­cern­ing the idea, as­sume it is a crude strain of pa­tri­o­tism. Amer­ica, Toc­queville said, is unique be­cause it was born free — free of a feu­dal past, free from an en­trenched aris­toc­racy and es­tab­lished re­li­gion.

The Amer­i­can Revo­lu­tion was a po­lit­i­cal, not a so­cial, revo­lu­tion; it was about eman­ci­pat­ing in­di­vid­u­als for the pur­suit of hap­pi­ness, not about the state al­lo­cat­ing wealth and op­por­tu­nity. Hence our ex­cep­tional Con­sti­tu­tion, which says not what govern­ment must do for Amer­i­cans but what it can­not do to them.

Amer­i­cans are ex­cep­tion­ally com­mit­ted to limited govern­ment be­cause they are ex­cep­tion­ally con­fi­dent of so­cial mo­bil­ity through per­sonal striv­ing. And they are ex­cep­tion­ally im­mune to a dis­tinc­tively mod­ern pes­simism: It holds that in­di­vid­u­als are pow­er­less to as­sert their au­ton­omy against so­ci­ety’s vast im­per­sonal forces, so peo­ple must be­come wards of govern­ment, which sup­pos­edly is the lo­cus and en­gine of so­ci­ety’s cre­ativ­ity.

Two years into Barack Obama’s pres­i­dency, we now know what he meant about “ hope” and “change” — he and other pro­gres­sives hope to change our na­tional char­ac­ter. Three weeks into his pres­i­dency, Newsweek, un­hinged by ado­ra­tion of him and al­low­ing its wishes to fa­ther its thoughts, an­nounced that “we are all so­cial­ists now” and that Amer­ica “is mov­ing to­ward a mod­ern Euro­pean state.” The elec­torate em­phat­i­cally dis­agreed and cre­ated the 112th Congress, with its ex­cep­tion­ally im­por­tant agenda.

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