Tags: republic | alexander hamilton | federal government | constitution

Recovering our Republic From the Federal Leviathan

Image: Recovering our Republic From the Federal Leviathan
(Emmanuel Dunand/AFP/Getty Images)

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Tuesday, 27 Jun 2017 04:07 PM Current | Bio | Archive

Since at least the time of the New Deal (the early 1930’s), the federal government has been expanding into areas of American life which simply were not contemplated by those who founded our republic in the late eighteenth century.

In those years the growth of the central government was prompted first by Congress, following the spectacular election victory in 1932 by FDR, and then was increasingly accomplished by the United States Supreme Court, first when the Court essentially ratified unprecedented Congressional action in the late 1930’s, and then, later, when the Warren Court, in the 1950’s and 1960’s, in a series of remarkable decisions, took power away from our state and local governments in important matters of politics, education, and religion.

This alarming series of developments continued in the next five decades, when the Court created a Constitutional "right of privacy," out of "penumbras and emanations" from provisions of the Bill of Rights, which ultimately resulted in declaring unconstitutional state restrictions on contraception, abortion, sodomy, and same-sex marriage.

In a similarly expansive spirit, the Supreme Court, in 2012, virtually eliminated the Tenth Amendment’s declaration that the federal government was to be one of limited and enumerated powers when it upheld the Affordable Care Act ("Obamacare"), and, for the first time, gave the federal government the authorization to control one-sixth of the country’s economy. The election of Donald Trump, in 2016, ought to be viewed as the manifestation of a popular feeling that the expansion of the federal government (particularly its accelerated aggrandizing under Barack Obama) had gone too far, and that, to paraphrase the Tenth Amendment, it was time to restore power to the states and to the people thereof.

The original Constitutional conception was of a republic — not a democracy — in which the governments closest to the people — those of the states, towns, and counties — were the primary law makers. This is not the system we have now, when we are now essentially under the hegemonic domination of a federal leviathan, what has come to be called the "administrative" or "deep state."

This blog, which Newsmax was kind enough to invite me to author, will seek to participate in what ought to be understood as a broad-based effort of supporters of President Trump and other concerned American citizens to begin, once again, to restore the United States to its original republican conception. This is a republic in which the principle of dual state and federal sovereignty, which political scientists call "federalism," prevails. Equally important to those seeking to bring us back to where we once were — "to make America Great Again," in Mr. Trump’s evocative phrase — is to return our judiciary to the role for it limned in Alexander Hamilton’s famous "Federalist 78," that is, a group of jurists who exercise "judgment, not will," or, more simply stated, to bring us back to a time when judges interpreted, but did not make law. This second notion, the separation of powers, was as important to the framers’ original design as was federalism.

Federalism and separation of powers, however, have been all but ignored in the American legal academy, where I have taught for the last 43 years.

In the law schools, where there has been widely-shared approval of the expansion of the federal government, and where, indeed, there is very little support for conservative and traditional Constitutional theory, there has emerged a consensus that the law has virtually no fixed and certain content, and, really, that law is just another tool of politics.

This pernicious set of notions was not embraced by the late Supreme Court Justice Antonin Scalia, nor is it the view of Justice Clarence Thomas, nor of the newly seated Associate Justice Neil Gorsuch. Those three demonstrated their belief that the only appropriate guide to the Constitution’s meaning was the understanding of the framers, and, especially if a vacancy opens up on the Court soon (as it may do with Justice Kennedy’s anticipated retirement), we are about to be once again engaged in a national seminar about the appropriate judicial role and the nature of our polity.

This blog will participate in that discussion, and seek to set forth what might be called a paleo-conservative perspective on our Constitution and government, one designed to result in the kind of polity Mr. Trump appears to champion. In the blog, I will be commenting on current political, legal, and cultural events, and seeking to participate in the crucial ongoing recapturing of our republican heritage.

Stephen B. Presser is the Raoul Berger Professor of Legal History Emeritus at Northwestern’s Pritzker School of Law, the Legal Affairs Editor of Chronicles: A Magazine of American Culture, and a contributor to The University Bookman. He graduated from Harvard College and Harvard Law School, and has taught at Rutgers University, the University of Virginia, and University College, London. He has often testified on constitutional issues before committees of the United States Congress, and is the author of "Recapturing the Constitution: Race, Religion, and Abortion Reconsidered" (Regnery, 1994) and "Law Professsors: Three Centuries of Shaping American Law" (West Academic, 2017). To read more of his reports — Click Here Now.

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StephenBPresser
Since at least the time of the New Deal (the early 1930’s), the federal government has been expanding into areas of American life which simply were not contemplated by those who founded our republic in the late eighteenth century.
republic, alexander hamilton, federal government, constitution
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2017-07-27
Tuesday, 27 Jun 2017 04:07 PM
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