I have often thought that after Abraham Lincoln, Woodrow Wilson was our worst president. By worst is meant least faithful to the Constitution and most destructive of personal liberty.
With the exception of Lincoln’s dictatorship — during which the federal government used violence to crush the states’ natural right to secede from a union they had voluntarily joined, and instead brought about the systematic murder of 750,000 Americans, many civilians — America from its founding to the early part of the 20th century more or less enjoyed the James Madison model for the federal government.
Under this model, the federal government could only legislate, regulate, spend and govern in the 16 discrete areas of governance that the Constitution delegated to it. All other areas of human behavior and governance were left free to individual choices or governance by the states.
From and after Wilson’s presidency, the Madisonian model was replaced by the Wilsonian one. Under this model, the feds could legislate, regulate, spend and govern in any area of human behavior for which there was a national political will, except for those areas that are expressly prohibited to them by the Constitution.
It would take another generation before the courts fully caught up to this, during which they gradually permitted Congress basically to write any law, regulate any behavior, spend any money, tax any event and intrude upon any relationship so long as it did not confront an express constitutional prohibition.
The Constitution itself — which Madison designed both to establish the federal government and to limit it — has been a dismal failure as an instrument of limitation. Madison himself wrote that only a structure external to the Constitution could effectively keep the federal government in its place.
He was referring to the power of the states to nullify acts of the federal government that the states determined were outside its constitutional authority. He was also referring to secession — the natural right that individuals and political sovereignties and subdivisions have to leave the government. Just as the 13 colonies seceded from Great Britain, Madison argued, individuals can reject the government; smaller subdivisions can leave larger ones, and states can leave the feds.
In his masterpiece “Democracy: The God That Failed,” Hans-Hermann Hoppe articulates the truism that one is not truly free if one cannot leave the government. This applies to persons as well as to political subdivisions. The forced retention of persons and groups under the government’s monopolistic jurisdiction is totalitarian.
Without the threat of nullification and secession, there is no effective restraint on the feds.
Now back to Wilson. His governmental sins were many — World War I, the Espionage Act, the federal income tax, the popular election of U.S. Senators, the Federal Reserve; and his government by experts, known today as the administrative state.
This last insidious structure is neither fish nor fowl; it is not clearly in any branch of constitutional government. It writes rules, enforces them and interprets them. As an example, the U.S. Tax Code, enacted by Congress, runs to 2,600 pages. It is an indecipherable monstrosity. But the IRS’s own regulations — written by IRS experts, not by Congress — run to 9,000 pages. And the IRS’s experts’ interpretations of IRS regulations run to 70,000 pages!
This is Wilson’s government by experts.
According to the late Justice Antonin Scalia, giving away regulatory power to experts is an unconstitutional delegation of Congress’ legislative powers to entities that are not answerable to the voters. Administrative agency heads are appointed by the president and confirmed by the Senate. But the folks who write the rules are permanent bureaucrats who do not change, no matter who is in the White House.
Until now.
Last week, President Donald Trump began the systematic dismantling of government by experts. He rightfully has complained that the administrative agencies answer to no one. They make rules, they enforce them, they prosecute those who allegedly ignored them and they even judge their own prosecutions. In Administrative Law courts, the judges are not independent. They work for the same boss as the prosecutor — the administrative agency.
He’d be on sounder constitutional ground if he did the dismantling by legislation, not fiat.
But he’s fed up with these agencies. In recent times, these unanswerable and unaccountable agencies declared mud puddles to be navigable waters, told all Americans without scientific basis to stand six feet apart in public but not in private, and even forced federal agents onto ships in the high seas to count the number of fish caught — and then billed the fishermen for the salary of their unwanted federal guests!
The courts have rarely interfered with administrative agencies because of a monstrosity called the Chevron Doctrine. This rule told courts that they must show deference to an administrative agency’s interpretations of its own rules, because its employees are — channeling Wilson — experts.
Last year, as if a precursor to Trump’s second term in office, the Supreme Court finally rejected Chevron.
Hereafter, when a person challenges an administrative agency in court, or is challenged by it, the litigants stand as equals — and the government must prove its case. There is no longer a presumption that the experts were correct.
All regulations interfere with personal liberty. When the government interferes with liberty, not only should there be no deference; there should be a presumption that the government’s behavior is immoral, unconstitutional and unlawful.
Why? Because freedom is the default position. Government is the negation of freedom. Freedom is everyone’s personal natural birthright. The sovereignty of the person — made in the image and likeness of the Creator — can never be equal morally and legally to a gaggle of politicians running an artificial monopoly of power in a geographic area.
Our rights are either inalienable or they’re not. If they’re not, freedom is an illusion. If they are inalienable, the government must leave our freedoms alone.
To learn more about Judge Andrew Napolitano, visit https://JudgeNap.com.
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