Not Our Democracy, but Our Constitution

American democracy, we are told, is threatened by Donald Trump’s victory. A headline from Vox.com, for example, averred, “Donald Trump has won—and American democracy is now in grave danger.” Common Cause lamented that a second term for Trump is a “threat to the core principles of our democracy.” A quick internet search reveals dozens of similar statements.

These mourners seldom recognize that the United States is not a democracy but a constitutional republic. By “our democracy” they likely mean our omnipotent Administrative State—the rule of experts in the federal bureaucracy. And the Administrative State (a/k/a the Deep State) is a target of the incoming presidential administration.

Anti-Trumpers don’t fret about “our Constitution” because they would rather not call attention to the republic’s governing document. If they did, the people might actually read it and see that democracy is not in peril—constitutional government is. Our elites—both Right and Left—have treated the Constitution as a list of suggestions rather than fundamental law.

The Administrative State is a perfect example. The Constitution does not provide for this fourth branch of government. Yet most rules that govern our lives are crafted by bureaucrats in the alphabet-soup federal agencies such as the EPA, SEC, and FTC. Moreover, these agencies exercise quasi-legislative, quasi-executive, and quasi-judicial power all under one roof. The agencies promulgate laws, send officials out to enforce them, and de al with challenges to the enforcement in front of agency hearing officers or administrative law judges. In Federalist No. 47 James Madison averred that the accretion of powers “in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”

The Administrative State is just part of the story of the constitutional tragedy. Let’s consider the president’s powers. Just a few days ago President Biden ordered air strikes on more than 75 locations in Syria. Under the Constitution, Congress is the branch authorized to declare war, raise armies, and call out troops to repel invasions. While the president is commander-in-chief of the armed forces, this title simply establishes civilian leadership over the military. It is not a license to assume Congress’s powers and drag the United States into a war.

Congress has its own problems with the Constitution, which provides an enumeration of congressional powers in Article I, Section 8. James Madison described in Federalist No. 45 the listed powers as “few and defined,” whereas those left to the states were “numerous and indefinite.” Congress ignores constitutional limits through untenably broad interpretations. For example, it has the power to regulate commerce, which the Framers understood as trade or traffic in goods. The purpose of this power was twofold: (1) retaliation if European trading partners restricted American exports, and (2) the creation of a free-trade zone among the 13 states.

Today Congress uses its commerce power to regulate anything, in the aggregate, that it believes could affect the national economy. Using such reasoning Congress has enacted a general federal criminal code even though the Constitution limits its criminal jurisdiction to counterfei ting, piracy, and a few other areas. Under the substantial effects doctrine, it tells farmers how much wheat they can grow, regulates labor relations, and polices the environment. Congress knows few bounds to its powers.

The Supreme Court is also outside its constitutional bounds. The Framers created the Court as a coequal branch with the power to review the acts of the other branches as part of a case or controversy. Today the Court claims superiority and insists that it has the final say on what the Constitution means. While it surely must interpret the Constitution in performing its work, judicial supremacy elevates judges to the status of Platonic Guardians. A republic cannot endure with such power in the hands of unelected and unaccountable officials.

The crowd caterwauling about the dangers to “our democracy” (whatever that is) should be lamenting the state of our Constitution. Republicans and Democrats in Washington, D.C., have ignored basic constitutional limits on the federal government. Americans should be concerned, but not because Donald Trump poses some threat. They should be concerned because our two parties have rendered the Constitution a two-bit player in our governmental drama.