Photo: Flickr/IXQUICK

Government is growing ever more intrusive and arrogant, George Will argues in an important new article:

The original constitutional structure has, [law professor Elizabeth Price Foley] says, been inverted: Citizens are required to convince the courts that laws restricting liberty are “irrational”; government should be required to articulate justifications for limiting liberty. The Founders’ goal — in John Adams’s formulation, a nation of “laws, and not of men” — has, Foley believes, “been taken much too far.”

The courts, Will concludes, “incit[e] governmental arrogance by deferring to it. So judicial deference often is dereliction of judicial duty.”

While Will describes a case at the local level, this trend is particularly worrisome at the federal level, where judges have assented to the growth of an extra-constitutional administrative state. Administrative agencies, Gary Lawson ably explains, justify their broad, unchecked powers using a dubious “rationality” argument. And “constitutional law buffs know that ‘rationality’–so-called rational basis review–is code for ‘the government wins.’”

Lawson sums it up colorfully: “When the basic institutions of modern administrative governance are at stake, the Court closes ranks and hurls the constitutional text into the Potomac River.”

This isn’t to say that we need “conservative activist judges” to undo the damage. Instead, we need judges who recognize the importance of the Constitution and America’s first principles. In their decisions, former attorney general Ed Meese insists, jurists should recognize “the importance of grounding their decisions on the bedrock of original understanding instead of the shifting sands of public or personal opinion.”

Photo: Flickr/Mr. T in DC

Fifty years ago, the states ratified the 23rd Amendment to the Constitution, which allowed the District of Columbia to appoint electors for President as if it were a state. Yet while District residents may vote for President, they remain without representation in Congress.

Writing in the New York Times, Northwestern’s Kate Masur argues that race and partisanship are the principal reasons why the District lacks representation:

The 23rd Amendment is a reminder that support can be rallied for greater democracy for the district. And yet, in our polarized political climate, the powerful argument for voting representation in Congress seems perpetually stymied.

One problem is indifference; most Americans are unaware of the capital’s anomalous status, the city’s “Taxation Without Representation” license plates notwithstanding. A second is partisanship; to establish a vote in Congress for Washingtonians, who are overwhelmingly Democrats, Republicans would have to place a moral imperative ahead of partisan interests.

Another is race. A half-century after the dawn of the civil rights era, many Americans still have a hard time seeing African-Americans as citizens entitled to the rights that so many white people take for granted. For residents of a place once known as “Chocolate City,” these attitudes are a sadly familiar obstacle to equality.

Even if Masur is right that partisanship and race define the politics of granting representation to the District, Congress still has an obligation to uphold the Constitution. As Andrew Grossman and I explained two years ago, “Congress lacks the constitutional authority to grant the city a representative by legislation; the District of Columbia is not a state, and representation is limited to states alone.”

This is not to say there’s no moral case for representation. The District’s status violates the principle of consent of the governed.

Fortunately, there are solutions to this problem that do not violate the Constitution. For example, Grossman and I argued that

Congress could propose an amendment granting the District a representative in Congress, perhaps using the 1978 proposal noted earlier as a model. Adding such representation directly to the Constitution would by definition avoid running afoul of the nation’s supreme law. In addition, the amendment solution would retain the Founders’ intention that the capital city remain subject to the “exclusive legislation” of Congress–even as it grants the city’s residents a more direct voice in that legislation.

Another, less constitutionally problematic approach would resolve the “taxation without representation” complaint by eliminating federal taxes for the District.

No matter the solution, it’s important that it be consistent with the Constitution. Even a powerful moral grievance is no excuse for ignoring the nation’s highest law.

In the current crisis, conservative efforts to restore the separation of powers may even be more important than a campaign to shore up federalism. TARP, for example, was an unprecedented delegation of legislative power to the Treasury secretary, of all people. It was a desperate, essentially lawless grant resembling the ancient Roman dictatorship, except that the Romans wisely confined their dictators to six-month terms. Obamacare is a 2,000-page monstrosity that will need thousands, perhaps tens of thousands, of pages of additional regulations before it can operate. These will be issued by more than a hundred new bureaucracies, each a source of unaccountable power wielded over individual Americans. These multiplying centers of petty tyranny will accelerate our transformation from a republic of laws to a corrupt regime of muddled and ever more arbitrary power.

It is the U.S. Constitution, and not some competitive agglomeration of communities or constituencies, that makes a citizen the sovereign of his own home and privacy. There is absolutely no legal requirement to be polite in the defense of this right.

Superficially, this is quite correct. The Constitution does protect an individual’s right to free speech and the sanctity of his home.

But the Constitution is not, as Hitchens suggests, the origin of these rights. Even were they not mentioned in the Constitution, these rights would still exist: an individual would remain “the sovereign of his own home and privacy.” These “unalienable Rights” derive not from a simple document written by fallible men, but, as Thomas Jefferson put it, from “the Laws of Nature and of Nature’s God.” And it is “we the people” that grant the Constitution its powers, not the other way around.

Hitchens is right to revere the Constitution and the rights it protects, but he must remember that the Founders crafted the document to protect the existing natural rights of individuals. To argue that the Constitution is what “makes a citizen…sovereign” is in fact to diminish these rights and make man not sovereign at all but just another subject.