Now, tell me something I didn't already know: Unelected bureaucrats are running our lives:
Watching the ongoing clown show in Washington, Americans can be forgiven for asking themselves, “Why did we give this bunch of clowns so very much power over our nation and our lives?”
Well, don't feel so bad, voters. Because you didn't actually give them that much power. They just took it. That's the thesis of Columbia Law Professor Philip Hamburger's new book, The Administrative Threat, a short, punchy followup to his magisterial Is Administrative Law Unlawful? Both deal with the extraordinary — and illegitimate — power that administrative agencies have assumed in American life.
Hamburger explains that the prerogative powers once exercised by English kings, until they were circumscribed after a resulting civil war, have now been reinvented and lodged in administrative agencies, even though the United States Constitution was drafted specifically to prevent just such abuses. But today, the laws that actually affect people and businesses are seldom written by Congress; instead they are created by administrative agencies through a process of “informal rulemaking,” a process whose chief virtue is that it's easy for the rulers to engage in, and hard for the ruled to observe or influence. Non-judicial administrative courts decide cases, and impose penalties, without a jury or an actual judge. And the protections in the Constitution and Bill of Rights (like the requirement for a judge-issued search warrant before a search) are often inapplicable.
And we keep electing people who promise to go to Washington to tame the federal beast and return power to the people. Of course they never do, partly because it would just be so hard to accomplish and partly because they get sucked into the machine. Since they don't really have that much to do with governing anyway, then it doesn't matter all that much who we send to the swamp. It will never get drained, at least not by the people living in it. The great constitutional republic we all love, with its empowering participatory democracy, is just a sham.
Many of us whose cynicism has been growing for all these years now think there's only one thing that can make a difference: an Article V constitutional convention. If we can trust the system to be changed from the inside, our only choice is to yank it down.
Some say a convention is a drastic step, and I guess it is. So far, 33 amendments have been proposed by Congress and approved. Not one has come from a convention of the states. But it's also a complicated process. For there even to be a gathering dedicated to proposing constitutional amendments, two-thirds of the state legislatures have to call for it. Then anything it proposes must be ratified by three-quarters of the states. If a "runaway convention" would really propose a series of dangerous, insane amendments, as some people seem to fear, at least they wouldn't become part of the Constitution unless an overwhelming majority of people wanted them to. A more likely danger, it seems to me, given how fractured this country is right now, is that a convention wouldn't come up with anything a majority could agree to, especially something as drastic as I'd like to tame the federal government.
But it's all we have, so we keep trying.
A big supporter of an Article V convention right now is former Oklahoma Sen. Tom Coburn, who says, correctly, that the only way to "muzzle the alligators in the swamp" is by " reducing their authority back to what it was originally intended to be.”
For a convention to take place, all state applications must deal with the same topics. So far, 12 states out of the 34 necessary have submitted such an application. All 12 currently submitted call for amendments limiting the scope of the federal government, imposing a balanced budget on Congress, and giving term limits to Washington politicians. Coburn claims that 85 percent of the American people across the political spectrum support a balanced budget amendment. I'm not sure about that, especially if you start asking people what they'd be willing to give up that they get from the federal government. But the longer it goes, the more they will be getting and the harder it will be for them to give it up.
Conservatives, alas, are not 100 percent behind the idea. I would simply ask them: What's your solution then?