When pointing to the state governments, we mean more than the state attorneys general. When the legislatures and governors object to an unconstitutional federal law, their protest carries more weight. And the state governments hold in reserve two other constitutional powers: to ask Congress for a constitutional amendment, and — the nuclear option — to call for a convention of the states to propose such an amendment if the Congress will not.
The Constitution wisely separated the powers of government, not only to prevent tyranny but also to enable each branch to perform its functions well. When the separation of powers worked unimpaired, it helped to prevent the disease we call Big Government. That ugly term implies, among other things, a centralization of administrative authority in Washington, or, to put it differently, a bureaucracy that thinks it possesses the wisdom and the right to administer state and local affairs all around the country. Big Government thus strikes simultaneously at federalism and the separation of powers, at the external and internal checks on the federal establishment, inasmuch as a bureaucracy of this sort must combine legislative, executive, and judicial powers to be effective.
For a hundred years, liberalism has worked to overcome the constitutional separation of powers, winning many battles — but not quite the war. In the current crisis, conservative efforts to restore the separation of powers may even be more important than a campaign to shore up federalism. TARP, for example, was an unprecedented delegation of legislative power to the Treasury secretary, of all people. It was a desperate, essentially lawless grant resembling the ancient Roman dictatorship, except that the Romans wisely confined their dictators to six-month terms. Obamacare is a 2,000-page monstrosity that will need thousands, perhaps tens of thousands, of pages of additional regulations before it can operate. These will be issued by more than a hundred new bureaucracies, each a source of unaccountable power wielded over individual Americans. These multiplying centers of petty tyranny will accelerate our transformation from a republic of laws to a corrupt regime of muddled and ever more arbitrary power.
To unravel these new structures of unconstitutional power — and their predecessors, added primarily since the mid-1960s — is an enormous challenge. But our efforts can start with the restatement of the constitutional goal, and the resolution that at least we shall go no farther toward centralizing and combining what should be separated. Obamacare must be repealed, even if the older bureaucracies cannot be. No new TARPs — and let us usher this one into the grave as quickly as possible. No new delegations of legislative power to unaccountable bureaucracies. We need to constitutionalize the government we have, as far as we can: to pare it back as much as possible to the functions it was designed to perform, and where that is not possible, to prefer more constitutional to less constitutional means in every policy area. Here is the beginning of an agenda for conservative legislators and presidents, and for citizens, to guide us back — or rather forward — to a healthier, more responsible, and more constitutional political life.
– Charles R. Kesler is a senior fellow of the Claremont Institute, editor of the Claremont Review of Books, and professor of government at Claremont McKenna College. This article originally appeared in the May 17, 2010, issue of NationalReview.