WASHINGTON, D.C. — In honor of the 227th anniversary of the signing of the Constitution, Sen. Orrin Hatch took to the Senate floor Thursday to discuss the vital role the Constitution plays in responsible governing. Hatch has spoken several times about the need to restore function to the Senate to ensure the institution lives up to its constitutional duties.
In his remarks, Hatch quoted James Madison, widely considered the” Father of the Constitution”:
James Madison called the Constitution a miracle. I think he was right on point. The Constitution is a miracle because it has endured for over two hundred years. It is a miracle because of what it teaches about prudent government and the need to guard against human failings. It is a miracle because the lessons it provides are just as relevant today as they were 228 years ago. May we ever look to the Constitution for guidance and pay it increased fidelity as we discharge our duties here in Washington and across this great
Hatch also focused on the significance of the separation of powers outlined in the Constitution and the prescription it provides for good governance. Using Obamacare and the president’s unilateral actions on illegal immigration as examples, Hatch discussed the indispensable role the Constitution plays in protecting the American people from executive overreach, calling presidential hubris “the antithesis of fidelity to the Constitution.”
Hatch also described the Constitution as a guide for those frustrated with the legislative process and the difficulty of passing controversial legislation quickly:
Individuals find fault with the fact that the Constitution makes change difficult and requires broad, long-lasting consensus in order to enact major reform. Surely the exigencies of the day, they argue, warrant bypassing or even ignoring the separation of powers, federalism, and other critical elements of our constitutional structure. Although some of these individuals may be well intentioned, they are fundamentally misguided.
The full text, as prepared for delivery, is below:
Mr. President, today marks the 228th anniversary of the signing of the Constitution. 228 years ago, 39 brave and wise men set their names to the document that has guided our government and our politics ever since.
With each passing year I am increasingly astounded by the genius of those who framed our Constitution. The world was a very different place back in 1787. There was no electricity, no railroads, no air conditioning. Crossing the Atlantic Ocean took months. News traveled slowly, on horseback. Our nation, which today covers a continent, comprised only thirteen states with a combined population of 4 million people. That’s roughly the current population of Oklahoma.
Despite these vastly different circumstances, the Framers created a system that has endured for over two hundred years and become an example to the world of stability and strength. They did so by enshrining in the Constitution certain fundamental principles about government and the source of rights, coupled with an objective, honest view of the failings of human nature.
The Framers recognized that our rights come from God, not government, and that it is the role of government to secure, not create, rights. They recognized that government unrestrained is a threat to liberty, and that in order to protect citizens from government’s constant tendency to expand its sphere, ambition must be made to counteract ambition. Parchment barriers, as Madison famously intoned, will never suffice.
Thus the Framers created the separation of powers; federalism; checks and balances; an independent judiciary; a bicameral legislature; and an executive that, while unified, lacked the power of the purse. Each branch of government would have to share power with the others, just as states and the federal government would have to share power as well. By preventing any one branch, or any one level of government, from being able to act unilaterally in its affairs, the Constitution ensured that no one individual or group would be able to run roughshod over any other. And just as important, the Constitution ensured that no major policy change could occur without substantial support from large numbers of Americans at all levels of government and society.
The genius of the Constitution lies in its insight that prosperity requires stability. Temporary majorities come and go. Their favored policies may or may not be wise. Some years ago there was great concern that the earth was cooling. Now there is worry in the same quarters that it is warming. Policies that may have seemed wise at one point in time later reveal themselves to be foolish, even dangerous. By dividing power among branches and between states and Washington, our Constitution helps avert sudden, large mistakes even as it enables more modest improvements supported by broad coalitions.
The Constitution’s division of powers also protects against the natural inclination toward self-aggrandizement. This inclination occurs both at the government-wide level and at the individual level. An unchecked federal government bent on remedying all of society’s ills will tend naturally to swallow the states, each of whom has far fewer resources than the federal leviathan. At the individual level, officeholders competing for power and prestige battle against each other as they try to enact their visions into law. Our constitutional system ensures that the federal government does not altogether consume the states by limiting and enumerating the federal government’s powers and by promising that all powers not delegated to the federal government are reserved to the states. The Constitution also forces rival officeholders to work together, and is designed to prevent any one person from unilaterally making, changing, or eliminating laws.
Madison famously said that if men were angels, no government would be necessary. He further posited that if “angels were to govern men, neither external nor internal controls on government would be necessary.” Well, we’re not angels, and we need controls on government to keep it in its proper sphere. The Constitution provides these controls by dividing and diffusing power and by forcing those who seek change to work with others who may not share their views.
Unfortunately, there are some today who view the Constitution as an obstacle to overcome, a barrier to supposed progress. These individuals find fault with the fact that the Constitution makes change difficult and requires broad, long-lasting consensus in order to enact major reform. Surely the exigencies of the day, they argue, warrant bypassing or even ignoring the separation of powers, federalism, and other critical elements of our constitutional structure. Although some of these individuals may be well intentioned, they are fundamentally misguided.
The fact is that the Constitution is not an obstacle — it is a guide. A guide for how we should approach our contemporary problems, for how we should think about our roles as citizens and legislators, for how we should conduct ourselves as we debate the problems of the day.
The Constitution limits government in order to preserve freedom. It makes each branch the equal of the others and the states the equals of Washington, DC. It provides a check on all government action. It divides power among multiple sources because no one individual or office can be trusted with all authority. And it requires cooperation at all levels and all stages to ensure that changes in law are thoroughly vetted rather than rammed through by temporary majorities. These are the principles that should guide us as we seek solutions to our Nation’s challenges.
These principles apply in any number of situations. A law that coerces states into creating or expanding programs against their will by threatening to cut off all funding for noncompliance makes states the subordinates, not equals, of the federal government. Executive action that purports to suspend vast swaths of our nation’s immigration laws does not honor Congress as a coequal branch. Nor do statements threatening that if Congress does not act, the President will. The Constitution does not give the President a blank check. It requires him to work with Congress — a coequal branch — to move the ball forward. Executive hubris is the antithesis of fidelity to the Constitution.
More in line with what the Constitution teaches is a willingness to reach out, to include fellow officeholders. A President who works all levers of government to find broad agreement understands the Constitution’s lessons. President Reagan did this with tax reform and entitlement reform. President Bush did it with education reform and financial-sector reform.
Legislation that preserves the separation of powers rather than delegating vast lawmaking authority to an unelected bureaucracy also honors the Constitution’s teachings. So do regulations that stay within the bounds of agency authority. When agencies exceed their statutory mandate, they do violence to the Constitution’s careful system of checks of balances. They assume power that is not theirs to take and remove decisions from the give-and-take of the democratic process. This is particularly problematic when the obvious purpose of the agency action is to bypass Congress.
EPA’s recent carbon rules are but one example. When the administration found itself unable to pass cap-and-trade even through a Democratic Congress, it turned to administrative fiat. It mattered not that the Clean Air Act provides no authority for the administration’s exceptionally harsh rules — rules that will depress economic growth and cause energy costs to soar, I might add. What mattered was the goal of reducing carbon emissions.
But the Constitution does not give the President power to right all wrongs. It requires him to work with Congress, so that the two bodies together can address our nation’s problems. Cooperation, the Constitution teaches, yields better results than imprudent unilateral action.
More generally, all laws that expand government risk ignoring the Constitution’s lessons. When we vote to expand government we set ourselves against the very purpose of the Constitution — to restrain the powers of the federal government. True, the Constitution created a more robust government to remedy the defects in the Articles of Confederation, but in creating a more robust government it placed check upon check upon check upon check on that government. A government that can compel citizens to purchase products they do not want, or to provide products repugnant to their most deeply held religious beliefs, is a danger to liberty. Whenever we carve out new space for the federal government, we must be exceedingly careful not to upset the Constitution’s careful balance.
The Constitution also provides more subtle lessons on how we should conduct ourselves as Senators and elected officials. The overarching genius of the Constitution, as I have said, is its recognition that flourishing requires stability. Unchecked majorities are dangerous not only because they tend to invade minority rights, but also because in their enthusiasm for change, they may enact policies that cooler reflection would reveal to be unwise.
The ongoing debacle of Obamacare is an example of this in action. Flush with the presidency, a majority in the House, and their first filibuster-proof majority in the Senate in over 30 years, Democrats enacted fundamental changes to American healthcare that have forced millions of Americans off their plans, caused premiums to skyrocket, and further insinuated government into decisions that should be made between doctors and patients.
Had my colleagues on the other side of the aisle paid greater heed to what the Constitution has to teach, they might not have rushed so headlong into these problems. The Constitution teaches the virtue of prudence and incremental reform. Rather than seeking fundamental change, as President Obama promised during the 2008 campaign, Democrats should have focused on retaining those aspects of American health care that work well — including doctor choice, innovation, and quicker access to treatment — even while attempting to correct deficiencies.
A more modest package that sought to preserve what worked rather than an omnibus bill so large that no one had time to actually read it could have avoided many of the problems Obamacare is now causing. It might even have attracted some Republican votes. Instead, my colleagues on the other side of the aisle chose a party-line vote using an obscure legislative procedure that became necessary only after the people of Massachusetts — Massachusetts! — elected Scott Brown to block the bill. And they did so in such a rush that, as Speaker Pelosi so memorably revealed, they didn’t even know what was in the bill. My colleagues across the aisle, along with the rest of America, are now paying the price for their imprudence.
Mr. President, my remarks on this Constitution Day have focused on the lessons the Constitution has to teach, as well as the dangers we risk when we ignore its wisdom. I would like to close by calling on my colleagues to pay greater heed to the Constitution’s lessons when writing and voting on legislation. There is an unfortunate tendency, in my view, to think of the Constitution as the courts’ domain, to leave it entirely up to the courts to decide whether a law is constitutional or not. We here in Congress just write laws; it’s up to the courts to do the constitutional stuff.
This tendency to leave things to the courts diminishes our role in the constitutional system and misses the many lessons the Constitution has to teach. The judiciary’s role in assessing constitutionality is a narrow one. Courts do not ask whether a law is consistent with the Constitution’s overall spirit, or the principles that animate it. Rather, they ask whether it satisfies some legal rule announced in a previous case. Is the regulated activity commerce? Is the punishment for noncompliance a tax or a penalty?
But fidelity to the Constitution is about much more than narrow legal reasoning. Honoring the Constitution involves looking to the principles that undergird it — values like individual liberty, separation of powers, federalism, respect for civil society, and democratic accountability — in determining whether a given course of action is wise.
Obamacare again provides an example. Obamacare, in my view, is unconstitutional not only because it exceeds Congress’s powers under the Constitution, but also because it violates many of the enduring principles made manifest in the Constitution. It invades liberty by compelling individuals to purchase insurance against their will. It undermines federalism by coercing state governments to expand Medicaid. It dilutes the separation of powers by transferring vast legislative authority to the Executive. And so on.
The same is true of the President’s order suspending immigration laws for up to 5 million illegal immigrants. It attempts to transmute legislative authority to determine who may lawfully enter our country into an unbounded executive prerogative not to enforce the law. It end runs democratic accountability by ignoring the wishes of the people’s duly elected representatives. And it undermines respect for civil society by sanctioning conduct contrary to our laws.
Whether or not a law meets whatever legal tests the Supreme Court has set forth does not end the inquiry for those of us who seek the Constitution as our guide. We would do well to revive what James Ceaser and others call political constitutionalism: the notion that it falls mostly to political actors such as ourselves making political decisions to protect and promote constitutional goals.
For some programs, such as Obamacare, that means repealing the program root and branch and replacing it with one that is both more effective and more in line with our constitutional values. For other programs that have become more embedded in the fabric of American society, advancing the cause of constitutionalism will involve more incremental reform. All of our entitlement programs need improvement. We must think hard about how we can reform these programs to better serve those whom they were intended to help.
Mr. President, James Madison called the Constitution a miracle. I think he was right on point. The Constitution is a miracle because it has endured for over two hundred years. It is a miracle because of what it teaches about prudent government and the need to guard against human failings. It is a miracle because the lessons it provides are just as relevant today as they were 228 years ago. May we ever look to the Constitution for guidance and pay it increased fidelity as we discharge our duties here in Washington and across this great land.
Thank you, Mr. President.
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