In an attempt to denigrate the increasing number of principled small-government conservatives being elected to office, the Washington political establishment has developed a meme, “dysfunctional government.”
Not enough can get done in Washington’s contentious atmosphere, claim the insatiable proponents of more government. But that’s actually testament that our constitutional, republican form of government is beginning to kick like a mule.
The meme surfaced last year in the debate over raising the statutory debt limit. President Obama went on national television pleading to go beyond the $14.3 trillion ceiling.
"The American people may have voted for divided government, but they didn't vote for a dysfunctional government," he said. That ignores the obvious, which is that a $14.3 trillion debt was big-government dysfunction, and the Tea Party’s opposition to raising the debt ceiling was the sane and better approach.
Once the meme was issued from on high, however, it must have sounded soothing to big-government proponents, because it became repeated as if it had legitimacy.
This year American Enterprise Institute scholars Thomas Mann and Norman Ornstein claimed Washington is more dysfunctional than they’ve ever seen since planting themselves in the Capital City 40 years ago.
“The GOP,” they lament, “has become an insurgent outlier in American politics. It is ideologically extreme; scornful of compromise; unmoved by conventional understanding of facts, evidence and science; and dismissive of the legitimacy of its political opposition.”
In his moment of defeat to Tea Party-backed Richard Mourdock in the Republican primary of Indiana, Sen. Dick Lugar repeated the big-government meme.
Polarized politics created by electing outspoken, small-government conservatives means that “our government will remain mired in the dysfunction we have witnessed during the last several years,” he complained.
More recently and actually more accurately, but certainly not in the sense that he intended, liberal University of Texas law professor Sanford Levinson penned an article, “Blame the Constitution for our dysfunctional government.”
He writes, “[C]ritics across the spectrum call the American political system dysfunctional, even pathological. What they don't mention, though, is the role of the Constitution itself in generating the pathology.”
Levinson meant his observations to be a criticism that the Constitution itself is inadequate, and partisan rancor instead of a more active federal government is an unfortunate end result.
That’s a belief apparently shared by President Obama, who once called the Constitution an “imperfect document” that was flawed, even fundamentally.
The chasm between views of the Constitution is about as enormous as the divide between the economic worldviews of Karl Marx and Adam Smith, and for a reason.
Professor Richard Epstein of the Hoover Institute explains the small-government constitutional side: “The increased role of the government in the economy has had a negative effect on American society . . . through our conscious deviations from the original constitutional plan.”
The Obama administration’s attempt to advance its economic agenda has been done with a certain and rather brazen contempt for the Constitution. What progressives claim to be dysfunctional government is actually constitutional backlash, and it is occurring in both electoral and legal settings.
Libertarian law professor Ilya Shapiro writes at The Wall Street Journal about three recent unanimous Supreme Court decisions against the Obama administration involving the First, Fourth and Fifth Amendments.
These cases knocking back three different federal agencies, Shapiro says, “suggest that the administration has a faulty view of federal power.” That’s putting it too kindly.
Just as ignorance of the law is deemed no excuse for citizens’ transgressions, government’s violations of the Constitution are a serious matter even when there is room for legitimate disagreement about limits on government power. That the Obama administration’s violations may be based in ideology doesn’t mean they are benign, or lack wrongful and willful intent.
The Obamacare case before the Supreme Court is the granddaddy test for the divergent constitutional views about the scope of federal power. At issue is not just The Patient Protection and Affordable Care Act with its implications for the free-market economy, but the very nature of our Constitution.
Some Democrats including the president have engaged in preemptive attacks against the notion that the Supreme Court may declare the statute unconstitutional.
Such a ruling would rely in part on Marbury v. Madison, where Founder and Chief Justice John Marshall called the Constitution our “fundamental and paramount law” in his opinion known more for articulating the doctrine of judicial review.
Marshall was a Federalist who believed in an energetic federal government. But Marshall recognized that an energetic, legitimate and lasting American government required the law’s binding it. Judicial review provided a remedy against government’s acting in violation of our paramount law.
If Obamacare were declared unconstitutional, but the justices fail to articulate a clear and enduring expression of legal limits on the federal government, then the judicial remedy will be of less value.
There is another form of remedy that Founder James Madison described in Federalist 44 for when “the Congress shall misconstrue . . . the Constitution, and exercise powers not warranted by its true meaning.”
Madison wrote, “[I]n the last resort a remedy must be obtained from the people who can, by the election of more faithful representatives, annul the acts of the usurpers.”
The new tide of principled, constitutional conservatives inhibiting the Washington establishment from doing more damage to the economy and our nation is a remedy borne of our republican form of government. If that’s dysfunction, then the Constitution seems to be working perfectly well in that regard.
Mark J. Fitzgibbons is president of corporate and legal affairs for the American Targeted Advertising, Inc. and co-author with Richard Viguerie of “The Law That Governs Government: Reclaiming The Constitution From Usurpers And Society's Biggest Lawbreaker.”