Originally published by Constituting America, January 2018. Republished with permission.
Against the arbitrary rule of George III, the American Founders opposed the rule of law. On the most fundamental level, in their Declaration of Independence, they appealed to the laws of Nature and of Nature’s God against tyrannical violations of the unalienable rights established by those laws. Eleven years later, in designing the human, conventional constitutional law that reframed the federal government, the Founders established a republican regime intended to prevent the return of arbitrary rule to their country.
Of the three branches of government, they put the legislature first; understanding that the perfect, divine Lawgivers established the rule of His laws in nature, the Founders knew that procedures established for imperfect, human lawgivers needed to keep such persons directed toward the defense of the natural laws. Congress also ‘came first’ for a historical reason: In our first constitution, the Articles of Confederation, the legislature was the only branch of government. Not only was Congress itself unicameral, but the executive and judicial powers were folded into it.
Such legislative dominance had seemed to make the rule of law unassailable, but the contrary turned out to be true. Under the Articles, laws passed by Congress couldn’t penetrate into the states to govern individual citizens. This left an apparently formidable, unicameral federal legislature dependent upon the states for revenues and for enforcement. The purpose of the rule of law is to place a layer of protection between the persons enforcing the commands of government and the persons ruled by those commands. But the rule of law is nonetheless a form of ruling. Under the Articles, the states amounted to a second, political ‘layer’ of authority; the federal government could enact laws but it could not rule by those laws. As Publius writes in The Federalist, “Government implies the power of making laws”; it also implies the power of enforcing them.
If the federal government shall truly govern, however, additional safeguards needed to be build into it. A unicameral legislature that made laws but also enforced them and judged cases arising under them, reaching down to individuals within each state, might behave like a many-headed version of George III. Better, then to follow the longstanding recommendation of John Adams and establish a bicameral legislature. With the legislators in one house proportioned to the population of the states, the popular or democratic character of American republicanism would survive. Although women couldn’t vote in most states, the percentage of adults who could vote in the United States was still higher than in any other legislative body in the world at that time—far higher than in the British House of Commons, for example, whose members were elected by no more than fifteen percent of the adult population. By contrast, not only were the House members chosen by a more broadly-based electorate, but members themselves needed to meet no property requirements. Publius observes, “Under… reasonable limitations, the door of the House of Representatives is open to merit of every description, whether native or adoptive, whether young or old, and without regard to property or wealth, or to any particular profession or religious faith.”
The other branch of the legislature, the Senate, exists to protect the states, which exchanged their power effectively to veto federal legislation for a hand in making that legislation. With each state equally represented in the Senate, and with Senators elected by their state legislatures, citizens in every state could feel confident that the federal laws which would now rule them directly would not compromise the rightful powers of the states. In addition, the requirement that any proposed law would need approval of both houses, and that the senators would serve terms three times longer than members of the House, guarded citizens against what Publius calls “sudden or violent impulses” in lawmakers who might otherwise be swept up in the passions of the moment.
Although our contemporaries frequently use the terms ‘democratic’ and ‘republican’ as if they were synonymous, the Founders did not. The purpose of republican or representative government, as distinguished from the pure democracies of ancient Greece, where all acted as legislators and often as judges in the assembly, was precisely to empower reason over passion, to obtain “a cool and deliberate sense of the community,” as Publius phrased it. “Had every Athenian citizen been a Socrates”—a philosopher, a person ruled by reason—”every Athenian assembly would still have been a mob,” so powerful the passions become when human beings begin to orate at one another. Had Athens had a senate, Publius goes on to observe, Socrates would not have been put to death by his countrymen; the existence of a second seat of deliberation would have slowed things down, given Athenians time to think the matter through.
Despite their longer terms in office, and despite the property qualifications required of senators, the United States Senate would be no voice for an aristocracy, no House of Lords, The Constitution prohibits laws establishing primogeniture, the social and economic foundation of landed wealth. Senators may be richer than members of the House, but they are every bit as ‘common.’ All Americans are ‘commoners.’
As a final precaution, the Framers of the 1787 Constitution carefully enumerated the powers of the federal government. Congressional law governs interstate and international commerce, the military (including the militia), and establishes a federal judicial system operating under what Publius calls a “uniform code of civil justice.” Other powers remain in the states, or in the sovereign people.
The design of the United States federal government has been admired and sometimes imitated throughout the world. Yet few Americans today think of their government as very much limited to matters of commerce, military defense, and constitutional law. Given the legal and institutional safeguards the Framers enacted, why then do we now see such an extraordinary concentration of power in the federal government? Part of the answer may be seen in the transformation of Congress, a transformation undertaken and completed in the first seven decades of the last century, but especially between 1933 and 1969.
The same phenomenon has been seen in the states. Although I have never worked in Congress, I have worked on a state legislative staff. At no time did I or anyone else on that staff participate in formulating the bills that became laws. Each of the two major political parties had staffs in the state capital charged with that responsibility, augmented by the Office of Legislative Services, a state agency staffed by attorneys who reviewed all bills to ensure that the language was legally correct. ‘My’ state senator could propose an idea for a law, push to get it out of committee and onto the floor, but neither he nor his staff could have been seriously described as lawmakers.
We were nonetheless quite busy. Doing what? Typically, a constituent would call our office, in some degree of agitation over treatment received at the hands of a state administrative agency. My first task was to determine whether the complaint was likely to be legitimate, which it usually was. It transpired that, on occasion, unelected bureaucrats contract George III syndrome; symptoms included arbitrariness, injustice, and a touch of conceit. I would call the relevant state official (unlike the ordinary citizens, I had a handbook with their names, titles, and telephone numbers) and engage him or her in civil but firm conversation. I would often draft a letter to the relevant department head for the senator’s signature, following up on that conversation, putting a sort of legislative-branch imprimatur upon the point. Given the fact that the legislature retained control of the purse-strings holding the funds which kept bureaucratic lights on, these efforts more often than not had the desired effect.
That this new non-legislative task now forms the core of what’s still called the legislative branch of the federal government—that the procedure I followed was very far from restricted to the government of just one state, or even all the states, but extends to Congress itself—was confirmed at that time by political scientist Morris P. Fiorina, who published the current edition of his book on the subject in 1989. Cogently titled Congress: Linchpin of the Washington Establishment, this study has deservedly become a standard text in colleges throughout the country.
Fiorina began by contrasting the rate of turnover in the biannual House elections of the nineteenth century with that seen since the 1960s. In the 1880s and throughout that century, 40-50% of House members were replaced in each election. By the 1980s, the replacement rate had dropped to 15%. Being generally more elderly than their House colleagues, Senators die or resign more frequently, but that is no measure of voter sentiment, except in those cases when a Congressman may resign in anticipation of losing. So, for example, since 2008, 43% of Senate seats have ‘turned over,’ while the House has held steady.
Why the difference between the early Congress and the modern Congress?
Fiorina identified two principal causes. In the nineteenth-century House, committee assignments had been determined by the Speaker of the House, but Progressive-era reforms included a system of committee advancement based on seniority. Once years in service counted towards a member’s eventual chairmanship of committees and subcommittees, voters had a reason to keep ‘their guy’ in office; the more seniority he has, the more federal dollars he can direct to your district.
More important, however, was the Progressives’ expansion of the federal bureaucracy, which spiked upwards in the New Deal of the 1930s and then again with the Great Society programs of the 1960s. With a substantial and complex centralized bureaucracy now in place, combining legislative/regulatory, executive, and judicial/administrative-court powers within its agencies, Washington developed what the English call an ‘establishment’—a permanent ruling class. Legislators still legislated, but in a different ways; they still did favors for constituents, but also in a different way.
The good-humored and slightly cynical Professor Fiorina described it in terms of a certain sort of clever circularity. Congress enacts a law, signed by the President and sometimes initiated by him, through his allies in Congress. Congress couches the law in vague, general terms. This leaves the bureaucracies with the task of filling in the regulatory details; since the proverbial devil happily resides in details, this makes many Washington establishmentarians very happy indeed. Here’s where you, the citizen, come in: lost in the bureaucratic maze, confused by paperwork, whipsawed (as you think) by persons you didn’t elect, who consequently care little for your plight.
Ah, but now you turn to your rescuer, your friendly, local Congressman. He (or rather his staff) intervene heroically on your behalf, setting things right, winning your approval and, more usefully still, your vote and a reputation as one stand-up guy. To top it all off, your devoted representative can do this while inveighing against bureaucratic red tape and burdensome paperwork, imposed upon hardworking taxpayers by faceless and unfeeling bureaucrats. Thus Americans may detest ‘Congress’ while re-electing their own Congressmen time and time again. They just can’t stand the other 434 members of the House. Or, as legendary House Speaker Thomas P. “Tip” O’Neill put it in the 1980s, “All politics is local.”
This new and symbiotic relationship between Congress and the Washington bureaucracy has resulted in larger Congressional and administrative staffs. For Congress, Fiorina cites statistics that are now familiar. As late as 1960, House members’ office staffs averaged nine positions. By 1977, that doubled. Senators had larger staffs to begin with, but these staffs doubled, too. Less lawmaking was going on, on the Hill, but more pork-barreling and a lot more ‘constituent casework’ had been added.
In the past three decades, things have changed again, although not back to the old norm. Staffs have been reduced, now averaging 14 for House members, 34 for Senators. (One might observe that desktop computers have also made staffers more productive, with less need for typists and file clerks.) The real change isn’t in staffing, however, but in public opinion. All politics is still local when it comes to helping constituents with routine problems. But (as Fiorina himself has written in recent articles) our political life has become much more ‘national’ in terms of the issues addressed in local Congressional campaigns. Here, the turning point was the 1994 House election campaign engineered by House Minority Whip New Gingrich. Gingrich persuaded House Republicans to run on such national issues as welfare reform, term limits, tax cuts, and a balanced budget amendment. It worked; his party won enough seats to take the majority for the first time in forty years.
Since then, a semi-‘nationalized’ electorate hasn’t ‘polarized’—meaning, separated itself into ‘Left’ and ‘Right’ factions, with no centrists—quite as much as commentators claim, although it has polarized somewhat. In Fiorina’s term, political and media elites have “sorted” themselves into such factions; there are no more conservative Democrats, and no more liberal Republicans. A few moderates remain, grabbing headlines on close votes, but Democrats like Senator Russell Long and Republicans like Jacob Javits no longer exist. A middle-of-the-road electorate has no comfortable home in either party; a substantial portion of our fellow-citizens consider themselves ‘independent voters.’
Fiorina’s analysis should be supplemented by observing that the increase in national sentiment among voter and also ideological conflict among elites has sharpened in part becaue more people now question the post-World-War-II consensus, which consisted of broad approval of Progressive-style government policies. The difference between, say, Richard Nixon and Hubert Humphrey in the 1968 election was a matter of degree. The difference between Ronald Reagan and Walter Mondale in 1968 was not, nor was the difference between Donald Trump and Hillary Clinton in 2016. Reagan and Trump ran against the administrative state itself. That has caused the heirs of Progressivism to take their battle positions in defense of their status quo—nowhere more so than in the “linchpin of the Washington establishment.”
Another way of putting it is: For the first time in a century, Congress is getting interesting, again.
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