Renewing American Purpose (article)

October 1, 2022

Renewing American Purpose by Russell Vought

Statesmanship in a post-Constitutional moment

Whittaker Chambers once said that one of the most important cravings in the modern world is height. The ability to get up and see the lay of the land, above the various forces of history moving us when we don’t know we are being moved. This talk is an attempt to gain some constitutional height about where we are as citizens.

We are in a post constitutional moment in our country. Our constitutional institutions, understandings, and practices have all been transformed, over decades, away from the words on the paper into a new arrangement—a new regime if you will—that pays only lip service to the old Constitution. Our system is now much more like an unwritten constitution which operates based on precedents, like the English system. No constitutional amendments have been passed to enact this, but new legal paradigms have been introduced—a “living constitution,” independent agencies, permanent, “expert” civil servants—that have changed the underlying separation of powers at the core of our system.

How did this come to be? The Left at the turn of the nineteenth century were loud critics of the Constitution. Woodrow Wilson wanted an efficient, modern administrative state run by experts that could not be slowed by the Constitution’s separations of powers. He complained that the trouble with the theory of checks and balances, “is that government is not machine, but a living thing. . .. No living thing can have its organs offset against each other, as checks, and live.” But these complaints largely stopped during the historical developments of the twentieth century, and there is rarely any talk of a constitutional amendment on the Left. Why is that? Because the Left quietly adopted a strategy of institutional change that left the constitutional system of separate powers in place but radically perverted how they operated, their incentive structures, and their responsiveness to the American people.

The Left’s legal theorists adopted an approach to interpreting the Constitution based on it being a “living” document, meaning that its provisions should be understood to be malleable, keeping up with a modernizing nation. This was married with increased power assumed by courts, and the notion that nine supreme court justices would make all final decisions without any response from the other branches. Congress created so-called “independent agencies” such as the Federal Reserve or the SEC, meant to be independent from the direction of an elected president, but this principle impacted all the agencies, with career civil servants protected from at-will employment.

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Russell Vought is the president of the Center for Renewing America. He served as Acting Director then as the 42nd Director of OMB for nearly two years during the Trump administration.