Many people are concerned about Donald Trump’s commitment to the rule of law, a concern I share. But the other choice in this election is a Progressive one, and Progressivism by its nature lacks that commitment. Moreover, its history shows that it permanently damages the constitutional foundations of the United States. And the United States suffers from the fevers of progressivism more than any time since the 1960s. Thus, this election pits a candidate lawless by virtue of temperament against one lawless by virtue of ideology and emboldened by the spirit of the times. The rule of law is under threat, whoever wins.
Progressivism has proved a greater long-term danger than any single individual, because it is born in part out of systematic rather than personal hostility to the Constitution. Federalism and separation of powers are obstacles to the social engineering at the heart of progressivism, and thus progressivism has tried to eviscerate these restraints. Packed with FDR appointees in the 1930s, the Supreme Court gutted the enumerated powers. The administrative state has eroded the separation of powers, making the executive ever more powerful in domestic affairs. The theory used to justify these departures from the original constitution, living constitutionalism, is itself a threat to the rule of law, because it devalues the formal rules laid down by the Constitution.
And today we see all across a society a renewed progressive disdain for the rule of law.
The debate over who will be the next Speaker of the U.S. House of Representatives is really a debate about the structure of power in our political system. Members of the House’s Freedom Caucus argue that power has become too centralized and reforms must open up the legislative process to more members. They allege that the Speaker has become too powerful and that the House is being run as a top-down institution.
If you haven’t heard, there’s a job opening on Capitol Hill. It pays well but, as the outgoing incumbent might tell you, the management duties are pretty stiff. The job, of course, is the Speaker of the House. John Boehner’s surprise announcement that he would be resigning both as legislative leader of the House of Representatives and his seat representing Ohio’s 8th Congressional District has set off a scramble for his successor. The heir apparent, Kevin McCarthy (R-CA), the next most senior party leader, at first seemed to have a lock on the job. But McCarthy’s missteps have caused at least two other Republicans throwing their hats into the ring.
So the House of Representatives can’t bring itself to pass a serviceable tax bill. Whereupon Vice President Biden and Senator McConnell cut some backroom deal, which the Senate passes by a lopsided margin. In the waning hours of the 112th Congress (history as of today), the House passes the bill, unamended, by a 257-167 vote (172 Democrats and 85 Republicans voting yes; 16 Democrats and 151 Republicans no).
Question: in what meaningful sense can this concoction—plainly, a “Bill for raising Revenue”—be said to have originated in the House of Representatives, as required by Art. I Sec. 7 of the Constitution? The answer, upon information and belief, is that the House on August 1, 2012 did pass, on a 256-171 party-line vote, the Republican-sponsored H.R. 8, which would have extended all of the Bush-era tax cuts. The Senate simply “amended” that bill, as explicitly permitted by Art. I Sec. 7. So you see, everything is in good constitutional order on the Hill. Thought you might want to know.