Mark Pulliam rightly criticizes nonoriginalist judicial activism but wrongly would depart from the original meaning in other cases.
In a recent post, I wrote about how allowing the President to initiate war-making did not merely promote more wars, but also caused the Congress to become infantilized, not having an incentive to take responsibility for decisions about war. This problem results from not following the Constitution’s original meaning in the separation of powers area.
A distinct, but similar problem occurs in the area of Congress’s delegation of legislative authority to the executive branch – where once again departures from the original meaning concerning the separation of powers have problematic consequences. Here Congress actually takes the action of delegating legislative authority to the executive, in large part because this allows Congress to avoid political responsibility for the regulatory decisions that the agencies take. These delegations, however, violate the Constitution’s requirement that the Congress make the basic policy decisions.
If Congress were prohibited from delegating power to the executive, it would be forced to take responsibility and make the decisions about regulation. In situations where there is divided government, which is most of the time, that would mean that enactment of regulations would require compromises between the political parties. As a result, there would be more moderate regulations.
By contrast, under delegation, the President largely makes the decisions. A progressive President, under divided government, is spurred by his ideology and his party to take aggressive regulatory actions. A conservative President is led by the same forces to take much more limited regulatory actions.
As a result, delegation leads to polarization. Under divided government, Presidents of both parties use their regulatory authority to promote their agenda without having to compromise much. Without delegation, Congress and the President would need to compromise and there would be less polarization.
Thus, once again, a departure from the original meaning allows Congress to deviate from its constitutional role to the detriment of the country. People bemoan the increased polarization of the political parties. Rarely, however, do they place the blame on nonoriginalism.