Three recent cases challenge the statutory and constitutional bases of legislative delegation to executive branches.
With this I end with thanks a month-long stint as a Law and Liberty blogger. It’s been great fun, even with the distractions that came from pushing my book, The Once and Future King: The Rise of Crown Government in America.
The book’s thesis is that, from an admirable patriotism and a less attractive ignorance of history, American libertarians do not adequately defend liberty.
We are all patriots first and philosophers second—and that is just as it should be. For American theorists, patriotism means elevating people such as James Madison to the pantheon of political philosophy. The British have Hume and Burke, the French have Rousseau and Tocqueville—and the Americans have Madison and Hamilton. To be sure, they’re not mediocrities. But then they’re not the people who made the deals that produced the Constitution, or whose beliefs informed its content.
The hagiography that surrounds the authors of The Federalist wouldn’t be harmful but for the spin this gives to the Constitution. It takes a remarkable ignorance of history to take Hamilton as an authority on the subject of executive power, unless perhaps one is a “national greatness” conservative with a political agenda. As for the separation of powers, my book argues that that doctrine should be demoted as the touchstone of the Constitution, that a fear of executive power better explains what motivated the delegates.
The separation of powers was meant to constrain an overreaching president, to be sure. Today, however, it serves to immunize a president, and that is why the libertarian should reconsider his devotion to The Federalist. He might recognize that the greatest threat to liberty in America comes from a dominant executive branch, that the American Constitution did not export well, that parliamentary regimes without a separation of powers are more favorable to liberty. And having done that, he will see that what is exceptional about America is that it is free in spite of its Constitution.
A word more about Madison, the hypochondriac who outlived them all. He came to Philadelphia with a plan that the Senate should be an appointed body, that Congress should appoint the president and that the federal government should have the power to veto state laws. On all of these he was voted down. If he is the father of the Constitution, this is one of those cases, not unknown in delivery rooms, where the child did not resemble the father.
Not that I think these necessarily are bad ideas. All of them were adopted in Canada. If one wants to call Madison the father of the constitution, then, be careful of which country you speak. Mind you, it takes a remarkable foolishness to launch a war against Canada—and then to lose it.