Conservatives Must Reclaim the Founders’ Vision

By Caleb Nunes

Friday, September 08, 2023

 

The 2023 National Review Institute William F. Buckley Jr. Essay Contest had this prompt: “One of the principal tasks of Reagan-Buckley conservatism was to bring government back under the control of the Constitution — a task pursued through judicial appointments but also legislation and popular education. How well has this project succeeded, and where is it falling short?” Open to students who just completed their freshman or sophomore year of college, the contest received submissions from around the country. The winning essay is published below.

 

When the Founders wrote the United States Constitution, they had a clear vision of a democratic republic that rejected the idea of inherited authority and acknowledged the wayward nature of man. The radical idea that “we the people” could create a government with the duty of “secur[ing] the blessings of liberty” differentiated the United States from monarchical and aristocratic governments that distributed power on a hereditary basis and saw liberty as a curse rather than a blessing. Ronald Reagan and William F. Buckley Jr. shared our Founders’ vision, and each fought tirelessly to promote it. Unfortunately, the Left has proved more strong-willed and more powerful than Reagan or Buckley could have imagined.

 

Conservatives today have sought to revive the Founders’ vision of government, but any progress they have made pales in comparison to the long history of the Constitution’s defilement by Congress, the executive branch, and the courts. While recent conservative victories have changed the direction of jurisprudence, the project of putting government back under the Constitution’s constraints has barely begun and may never be finished, given the permanence of the modern administrative state and the current degree of government intervention in the economy.

 

In 1802, the civilian federal workforce included only 3,900 people. Today, almost 3 million people hold jobs with salaries paid by the taxpayers. These jobs constitute the administrative state, part of the apparatus of what’s popularly dubbed the “deep state,” and represent a federal government unrestrained by the nondelegation doctrine. That doctrine arises from the separation of powers between the three branches of government outlined in Articles I, II, and III of the Constitution. In 1892, the Supreme Court declared that Congress can offload its legislative authority into the hands of the executive’s many agencies — in effect, delegating away its own powers. Since 1935, no statute has been invalidated under the nondelegation doctrine. The lack of adherence to this doctrine combined with the 1984 Chevron decision has greatly exacerbated matters.

 

In Chevron v. Natural Resources Defense Council, the Supreme Court ruled that courts must defer to an agency’s interpretation of vague statutes as long as the interpretations are “reasonable.” In part as a consequence of “Chevron deference,” liberty-loving Americans find themselves powerless against the Leviathan: They are made powerless when Congress votes away its constitutional authority. Powerless when bureaucrats play the interpretation game with their newly gained authority. Powerless still when the courts cannot restrain this transferred authority.

 

Fortunately, in the 6–3 decision in West Virginia v. Environmental Protection Agency from 2021, the majority took a step in the right direction by using the major-questions doctrine to declare that Congress had never explicitly given the economically significant power of regulating greenhouse gases to the EPA and that the courts should not assume that the EPA — or any executive agency — has this power. This decision, though, was a drop in the bucket when considered against the accumulated authority of these agencies. President Joe Biden is successfully wielding that authority to implement agenda items for which he lacks popular support.

 

The persistence of New Deal economic programs and other major federal interventions in the economy also illustrates the limited success of the conservative legal movement. The invention of mandatory-retirement and disability-insurance systems by FDR during the New Deal era is an affront to the Madisonian principle of enumerated powers.

 

In Helvering v. Davis, the 1937 decision ruling Social Security to be constitutional under the general-welfare clause, the majority eviscerated even a limited interpretation of that clause, writing that “‘general welfare’ is not static, but adapts itself to the crises and necessities of the times.” The majority even used compassion to buttress its argument, writing that the “hope behind this statute is to save men and women from the rigors of the poor house.” This decision and others like it are seemingly irreparable blemishes on what Ronald Reagan and Bill Buckley saw as the proper role of the federal government.

 

Moreover, in United States v. Darby (1941), the Supreme Court ruled the minimum wage and other parts of the Fair Labor Standards Act to be constitutional on the premise that such regulations are necessary and proper for the protection of states from “unfair” price and wage competition. Contrary to Madison’s vision, the use of the necessary-and-proper clause no longer applies strictly to enumerated powers but seemingly to whatever goodies and regulations our social democracy yearns for — even if such yearnings come at the cost of property rights, free association, or the principle of enumerated powers.

 

This historical apathy toward constitutional limits on federal economic policy combined with pity-laden statements like that in the Helvering decision reflect how “soft” the Supreme Court’s jurisprudence has been for decades.

 

Thankfully, Supreme Court appointments made by the Trump administration have permitted the possibility of judicial restoration of constitutional principles. Recent rulings such as West Virginia v. EPA, Axon Enterprise, Inc. v. Federal Trade Commission, and Securities and Trade Commission v. Cochran have opened up the door to increased litigation against the administrative state. Students for Fair Admissions v. Harvard and the companion case Students for Fair Admissions v. University of North Carolina reaffirmed the principle of a color-blind Constitution, and Biden v. Nebraska reminded the president that Congress, not the executive, has legislative power.

 

But despite these conservative judicial victories, a sense of pessimism persists. Victories in the Court are simply not enough.

 

There has been no recent legislation passed to substantially restrict the government’s capacity to intervene in its citizens’ affairs. It is unlikely Congress will vote to shut down any of its extra-constitutional agencies or decide that our current culture of entitlement (thanks, FDR) should be replaced by a culture of individual and local responsibility. The absence of meaningful legislation is rooted in a failure to inculcate civic virtues or transmit ancient wisdom to our children. This distinction between legislative and judicial success creates a problem for the current Supreme Court majority: No matter how constitutionally sound the reasoning may be, any significant attempts to roll back government power via the courts will be immediately met with public backlash. Without a Congress willing and ready to return power to the people, any attempts by the Court to do so will be viewed as legislating from the bench and further erode the already fading faith in our nation’s highest court, an outcome that would have alarmed both Reagan and Buckley.

 

With this dilemma in mind, conservatives must consider two questions.

 

First, given that perverted tales of our Founding have completely infested all tiers of education, how will the Right challenge and replace these phony narratives? In many schools, public and private alike, students are taught that the ideas contained in our founding documents are discredited by slavery. Their logic usually runs as follows: The Founders did not end slavery during their lifetimes, thus they were racist, and this racism necessarily means the ideas they advocated — an emphasis on natural rights, limited government, etc. — perpetuate white supremacy. Without reclaiming the narrative of our nation’s conception, the divide between conservative legal intellectuals and the electorate will only become more pronounced, demanding that this question be answered.

 

Second, with legal scholars John McGinnis and Michael Rappaport noting in a recent paper that “overruling all nonoriginalist cases . . . would plunge society into chaos,” how will conservatives approach cases that have a great bearing on programs established by previous legislation? The government’s practically ubiquitous presence would have been repulsive to Reagan and Buckley (as it is to me), but it brings comfort to many. Given that Social Security, disability insurance, agricultural programs, and minimum-wage laws are welcomed and accepted by the electorate, it is unlikely that they will be rolled back by the Court or legislated away. To avoid the chaos that comes with overturning certain precedents, McGinnis and Rappaport propose the use of prospective overruling, where cases would have only future, but no retrospective, effects on law. Prospective overruling has attracted both criticism and support from originalist thinkers and should be debated by the Right, as it may be the best way to resolve the question presented above.

 

Conservatives have a lot of work cut out for them. For two centuries, arguments for greater federal authority over the lives of Americans centered on our founding documents’ language and differing interpretations as to how tightly the Constitution constrained Congress and the executive. But by the time today’s law-school students graduate, the debate will have fully shifted to one with a large racialist component. The dissent by Justice Ketanji Brown Jackson in the recent affirmative-action case is a harbinger of this new discourse. In the eyes of Justice Jackson and my left-leaning peers, a sufficient argument for preserving affirmative action was that racial preferences ensure there are more black medical students (the assumption is that the MCAT is racist) and that black patients have better outcomes when treated by black doctors. Although that false claim is based on a statistical fallacy, many in my generation believe disparate-impact analysis to be the holy grail of legal thought.

 

Take arguments for the free-ranging authority of the EPA, for example. The racialist Left now argues that environmental protection is akin to the civil-rights fight of the 1960s. Somehow, water contamination and air pollution in poor communities are tantamount to the de jure segregation of schools during the 20th century. This transformation of debate puts the onus of moral righteousness squarely on conservatives’ shoulders. No longer do we have to disprove only the scientific efficacy of intervention or its constitutionality, but we also must prove that our arguments fit within the ever-changing definition of justice.

 

Thankfully, much of the necessary infrastructure for “re-constitutionalizing” government exists today. For example, the Federalist Society has built a network of over 70,000 attorneys, and college students can go to the National Journalism Center to be instructed in the ways of Stanton Evans, Frank Meyer, and Bill Buckley. When my Young Americans for Freedom chapter at Northwestern hosted its first event, we anticipated only 20 audience members but attracted over 100 students. Creating legions of young, happy conservative warriors is difficult, but these organizations provide the framework to do so. There is still hope that the Reagan-Buckley vision for government can be achieved, but such goals unfortunately demand we do more than “stand athwart history, yelling Stop.” It is time to stand up and set a course for the future our Founders envisioned.