“All legislative Powers herein granted shall be vested in a Congress of the United States . . . ” Thus run the first words of Article I, Section 1, of the U.S. Constitution, clearly laying out the Framers’ understanding of the nature and the role of Congress. Everything else enumerated in Article I—the various powers of Congress to raise an army and to make a declaration of war, to mint currency, to establish uniform regulations for naturalization and interstate commerce, and so on—are all, in the thinking of the Framers of the Constitution, legislative functions to be performed by the representatives of the several states, in Congress assembled. This corporate nature of Congress is something that we often forget—and something which helps point the way toward a restoration of a government that is truly federal, rather than national.
John F. Kennedy’s court historian, Arthur M. Schlesinger, Jr., popularized (though he did not invent) the phrase “the imperial presidency” in his book of the same name. Yet a decade and a half before Schlesinger published his partisan attack, masquerading as political history, on Kennedy’s old foe Richard M. Nixon, a more serious student of the American political tradition, James Burnham, had already written everything that Schlesinger got right, and much more that Schlesinger got wrong.
Burnham’s 1959 book Congress and the American Tradition is his most conservative, and most consistently underrated, work. Asked by publisher Henry Regnery, in the wake of the McCarthy hearings, to write a defense of Congress’s investigatory powers (which are never mentioned in the Constitution), Burnham gave Regnery much more: a serious work of political history that revives the Framers’ understanding of the nature and role of Congress and places that understanding within the Anglo-American (and more broadly European) political tradition.
What Burnham saw, and what Schlesinger and so many others later failed (and continue to fail) to see, is that the legislative power of Congress is as much (if not more) a constituent part of federalism as it is of the separation of powers. Burnham makes a persuasive argument that the structure of the legislative branch, as the Framers conceived it, was intended to prevent the sovereignty of the several states from being subsumed into the sovereignty of the federal government—which, he rightly recognized, meant the power of the executive branch: the imperial presidency.
The federal executive was never meant to be a national office in the sense that we find it today. The president was to act as the head of state when one was required, but more importantly, he was to ensure the faithful execution of the laws passed by the states in Congress assembled: that is, the laws that the representatives of each state agreed were in the common interest of all of their states.
But the evolution (or devolution) of the American constitutional system—both through formal amendments, such as the 17th, which provided for the direct election of U.S. senators, and through the growth of the population beyond the bounds that could be foreseen by the Framers and the destruction of traditional culture—has destroyed the understanding of Congress as an assembly of states gathered to create legislation in their common interest and, consequently, allowed the executive branch to usurp, not only the powers of Congress, but of the states themselves, and of their citizens.
There is a way back, but it requires senators and congressmen to forget everything they think they know about the role of Congress. As long as Congress is regarded as an assembly of individual legislators and simply one of three branches of a national government, the centralization of power in the executive will continue, because the very aim of Congress is wrong.
Should each state delegation begin approaching legislation with an eye toward the good of its state, however, perhaps something of the original understanding could be recovered. Rather than look to Republican legislators to thwart the plans of Democratic presidents (and vice versa), states that began to approach federal legislation as South Carolinians or Illinoisans or Arizonans might begin to question whether such legislation is really in the interest of the people they represent. Such patriotism, it is true, seems unlikely; but the current economic crisis and a massive federal debt that will never be repaid may open up opportunities. In the near future, all federal mandates are likely to become unfunded federal mandates, increasing the burden on the states at the very moment when they are least able to bear it.
In normal circumstances, economic self-interest is a poor substitute for the ties of kith and kin, but in an age when the latter are denigrated, perhaps the former stands a better chance of bringing about change we can believe in.
This article first appeared in the May 2009 issue of Chronicles: A Magazine of American Culture.