HELMS SCHOOL OF GOVERNMENT
Submitted To Dr. Timothy O’Brien
In Partial Fulfillment of Requirements of
PhD in Public Policy: National Security Policy
Analytic Paper: Original Intent Assignment
Contemporary Challenges to Constitutional Order and the Role of the State
July 17, 2022
The U. S. Government’s Expansion Over the Past 100 Years,
And Its Impact on National Security,
Relative to the Concept of Federalism
as Intended By the Framers of the Constitution
What is the impact, if any, on National Security, in the Federal Government’s drift from the original intent of the Framers of the Constitution, and its implicit concept of Federalism—separation/limitation of powers?
The Concept of Federalism
Publius (Alexander Hamilton) made it clear, in Federalist No. 69, that the character or the Executive, or The President of The United States of America, contrasted to the King of Great Britain, of whose absolute power each citizen of the new world was painfully familiar, was not one of despotic or tyrannical supremacy. As in all the Federalist Papers, the authors sought to explain the intention of the Framers in this new form of government as it compared to the Articles of Confederation they were accustomed to. This endeavor would prove difficult in persuading the American public that the new Constitution would offer them important advantages as compared to the former loose association of government provided by the Articles of Confederation. With the Articles there was no central government, and each State retained its sovereignty, freedom, and independence. The Articles of Confederation was essentially a treaty among the sovereign States. The wise Framers soon knew this document was insufficient for the future of this great nation. They also knew the sort of government they did not want for America.
Though the concept was not actually realized until later, the idea of separation of powers was in the minds of the Framers. As the Supreme Document was being formed, the Virginia Plan proposed three separate branches of government: legislative, executive, and judicial. As they discarded the old Articles of Confederation, the Framers adopted a resolution creating a national government consisting of these three branches. There were some opposing the centralized form of government, and if the Virginia Plan had been adopted as it stood, the smaller States would have been swallowed up by the might of the larger States, and the Legislative Branch would have reigned supreme over the other two branches. The New Jersey Plan introduced checks upon the central power of the Virginia Plan, and thus a compromise was adopted modifying the centralizing tendency of the Virginia proposal.
The concept of Federalism, though not explicitly stated in the Constitution, is still implicit in all her theoretical structure. When completed, the Supreme Law of the Land—The United States Constitution—stood as neither a centralized political structure nor a mere league of independent States; it is a federal union that limits power by dividing it.
Another implicit concept in the Constitution, along with the Rule of Law, which provides that none are above the law, stands the concept of Separation of Powers. This concept works alongside the first and serves to guarantee that one branch of government does not rise above the others. This implicit concept prevents a concentration and abuse of power.
As the debates at the Constitutional Convention were taking place, there were many who were seriously concerned about any reference to an Executive power. The former Articles of Confederation had not provided for any executive power, and the new Americans were understandably skittish over the thought of it, since hostilities remained strong toward the British Monarchy. There was specific concern over the executive power turning into a monarchy and is noted in the debates in the Anti-Federalist Papers. During specific discussion over the very nature of the new executive power, there were some who suggested as many as three, while others stated that one single man would best “feel the greatest responsibility and administer the public affairs best.” On all sides of the debates it is clear nothing was ever suggested or intended for the Executive Branch of the new government to either amass or retain an unbalanced power over the other branches of government. This is of great importance and will be referred to later in this paper.
During the debates at the Constitutional Convention of 1787, on September 4, 5, and 6, the discussion focused on the election and the powers of the President. Although some had previously argued for as many as three, or a plural executive, to fill the office, and there was considerable debate as to the manner in which the Executive would be elected, or even re-elected, his eligibility, and also the matters of impeachment if necessary, it is clear that much discussion was made concerning the risk of cabal and corruption. This concern against factions, or groups of conspirators, was ever present on the minds of those debating the principles of the Constitution, and the well-known Framers, as they carefully planned out the future of this great nation. Madison had much to say about these factions in Federalist No 10. It must be duly noted that throughout this debate process, and the Federalist Papers, all the way to the final Ratification of our present Constitution, no matter which side the Framers stood upon or what may have been their opinions concerning the manner in which the three branches of government may be constructed, there is one common theme in it all—the concepts of Separation of Powers—Federalism—and the balance of responsibility and power in the present Constitution. The idea of giving the citizens of this great nation a Supreme Document that would endure for many centuries to come, limit and separate power so that is possible, where the people would be the place where the buck stops, and the preservation of individual liberty, was the current stream of thought in the minds of the Framers. All our nation’s founding documents are saturated with this common theme of balance of power, separation of power, and limits of power, so as to preserve a great nation, and the freedom we have enjoyed for over 200 years.
It would have been, and was, impossible for the Framers, in 1787, to have foreseen the future of this nation and perceive every single incident that it would face. However, those same Framers, as well-educated and knowledgeable as they were, were able to deliver a foundational document that could withstand and assimilate the basic needs of a nation in a changing world.
This is hardly different from constructors erecting a superstructure upon a solid foundation, a foundation designed to withstand the modifications and structural re-designs of future occupants. The foundation would of necessity be constructed so that it may not only support the changes of additional levels or new and heavier materials, but it would also serve to dictate the parameters of the future design, so that future plans could not cause damage to the foundation. Walls and rooms could be designed in new and fashionable arrangements, and the styles of the furnishings would naturally evolve over time, yet the foundation must be built to support the new developments. Jesus spoke of the importance of establishing such a supporting foundation in the Gospel According to Matthew, chapter 7, verses 24 through 29. He spoke of a wise man who built his house upon a rock versus one who built upon sand with no absolute stability. While some may criticize the Constitution and lay claims that it does not address the needs of the current day, yet the fundamental principles are there in place for the superstructure to be modified within the parameters of the capability of the foundation. This is the hidden gem woven within the fabric of our society. These underlying principles permanently support, and are vital to, the future of this nation.
The concept of the necessity of the balance of power has been established and it is clear that such balance must remain. Just as too great a weight on a particular area of a foundation that is out of proportion with the rest, would endanger not only the foundation, but the superstructure, so is the necessity of the balance of power in our government to prevent abuse and damage to our society and the security of our nation.
Expansion of Government
The world has grown exponentially since 1787, and it is not inconceivable to expect governments to grow, as well. Everyone is aware that the United Stares Government has grown quite enormously in the past 100 years. The problem is that most of us have no real idea exactly how much it has grown. What we can discern is that the structure of our government has expanded disproportionately. The following chart demonstrates this unbalanced structure.
Figure 1.1 Organizational Chart of the United States.
In this chart it is clear to see that the Executive Branch has many offices which it oversees. These offices are also known as Regulatory Agencies and they are answerable to the Executive Branch. Are these agencies unlawful? This is a question Philip Hamburger has asked. Before we proceed, let us establish the definition of Administrative Law. Dr. Hamburger writes that traditionally the federal government bound the people exclusively through acts of Congress and judgements handed down by the Judiciary. Pursuant to our previous discussion of separation and limitation of powers, intended by the Framers of the Constitution, the power of the Executive is that of carrying out the judgments and declaration of the Congress and Courts. The term to be bound is to be obligated to the point of being constrained by law. Hamburger writes that what we understand as administrative law, is when the executive makes binding edicts straying into the lanes of the legislative and judicial jurisdictions. To make this matter clear, Hamburger gives examples of what is meant. The executive can manage the treasury agents but cannot publish regulations that alter tax rates. The latter is the purview of the legislature. Another example is that of the Post Office. The Post Office can refuse to mail a letter, but must stop short of prohibiting citizens to avoid private carriers. The executive can deny access to certain government information, yet cannot demand a private business to supply information, unless it is pursuant to a warrant issued by the courts or legislature. The executive has no power of its own; it acts as enforcer of that which is implemented by the other two branches of the government. It can only act in carrying out the binding laws of the congress or the courts.
Yet, today, writes Hamburger, the executive oversees agencies that exercise power of constraint, in binding Americans. It enjoys binding legislative and judiciary power. The agencies under the rule of the executive legislate rules dictating what Americans can grow, manufacture, transport, smoke, and eat or drink.
It is clear to see that what the Framers feared may come to pass has come to pass, and Americans have allowed it either due to ignorance or deception. While a good idea, yet the seatbelt law is an after the fact safety measure for the most part. Laws are in place in virtually all corners of our nation and they carry heavy fines. Still seatbelts are essentially an after the fact device. How about we focus on avoiding accidents as much as possible. This was once the focus, but all I hear these days is how I had better buckle up or face a fine. Yet, I can ride my Harley without a helmet. Is this all about my safety? Then why the conflicting regulations?
The exponential growth of American government has taken place largely in association with crises and war time. It appears that this serves as an opportunity to create or take advantage of the moment to insert a change. Though not writing of anything political, yet the principle is still the same, Lawler and Worley, denote steps for an organization to undergo change, often necessary to growth. In this particular context, it is understood that organization resist change much as all humans resist it as we are creatures of habit. They say that change is necessary but viewed as a necessary evil. Some even say that an organization must be unfrozen, shocked, and changed; a crisis must be created, and a thus a case for change articulated and sold. Lawler and Worley go on to explain the best ways to introduce change into an organization, yet one cannot help but wonder about the coincidence concerning those who might not only take advantage of a crisis, but perhaps even seek to create one to advance their agenda.
It doesn’t require much to allow our minds to wander to recent events and crises that have arisen. For fear of their lives many have begun to change not only many of their habits, but also the way they think. Just recently, one of our grandsons who is only 3 years old was taken to the Emergency Room for pains in his abdomen. Our daughter said the medical professionals checked the child, “for every virus known to man,” yet missed the apparent fact that he had a ruptured appendix. Though unusual at that age, it should be one of the basic things looked for, but the times seem to have us changing the way we think. We are not angry at the medical folks, everything turned out alright, but what are we doing? What sort of change are those who claim to be in charge injecting into our daily lives? Is this how government got so big? Are they jumping aboard every train that passes to advance their agenda for fundamental change in America? The Executive that uttered these words several years ago has probably never thought that some guy like me would remember them very well. I was listening.
It will not be easy, but we must seek to correct the current trending unbalance in our government structure before it topples. This unbalance is dangerous to our democracy and to our national security. This smacks of what our founders were so concerned about. The answer to my original thesis question is, Yes!
As this trend continues, and unchecked it will, we will find ourselves beyond the point of repair or return. At some point a new constitution will be demanded. Oh, wait, that’s already happening, isn’t it?
Gifis, S. Law Dictionary, Fifth Edition, Barron’s Educational Series, Inc. 2003
Hamburger, P. Is Administrative Law Unlawful? Available from: MBS Direct, University of Chicago Press, 2014
Higgs, R. Crisis and Leviathan: Critical Episodes in the Growth of American Government. The Independent Institute, New Copyright by Robert Higgs, 2012
Hamilton, A. Federalist No. 69, The Real Character of the Executive, From the New York Packet, Friday, March 14, 1788.
_ Federalist No. 10, The Union as a Safeguard Against domestic Factions and Insurrection, From the Daily Advertiser, Thursday, November 22, 1787.
McClellan, J. Liberty, Order, and Justice: An Introduction to the Constitutional Principles of American Government. The Liberty Fund, Inc. 2000
Lawler, E. & Worley, C. Built to Change: How to Achieve Sustained Organizational Effectiveness. Jossey-Bass, A Wiley Imprint. 2006
Office of the Federal Register, The United States Government Manual, 1983/84. (Washington, DC: U. S. Government Printing Office, 1083) p. 810
The Anti-Federalist Papers: and the Constitutional Convention Debates, The Clashes That Gave Birth to our Government. Ralph Ketcham, Ed. Signet Classics, 1986