On July 4, we celebrate the 245th anniversary of the day in 1776, when the American colonies declared their independence from Great Britain.
That seems like a long time ago, so I was surprised to realize that I was among the roughly seven million Americans who have been around for more than one-third of the days since then. It seems like a good time to take a look back.
The U.S. was unique when it was founded. It successfully threw off the authoritarian colonialism of the British monarchy. Having been an alliance of 13 independent states, it soon became a federation.
Thirteen years later, the states adopted a constitution establishing democracy in the form of a representative republic, ultimately controlled by the people through Congress and the states through federalism. The American system of government was so original that it was considered an “experiment.”
Checks and balances among the three branches of the federal government and between the federal government and the states were created to protect against anyone gaining too much power.
The experiment continues. But the limited power of the executive and the shared sovereignty of federal and state governments, promised in the Constitution, are fading.
Congress, representing the people and the states, was meant to be the leading federal institution, keeping the president from taking on the absolute powers of a king.
But it has let its authority slip. Faced with increasingly complex and contentious issues, Congress has allowed the president and a host of supposedly independent agencies to exercise its legislative powers.
Presidents (46) use executive orders (15,754 so far) that have the force of law and signing statements (number unknown) that often reveal they will not enforce parts of the bills they sign into law.
President George W. Bush claimed complete, unchecked presidential power. He embraced the “unitary executive theory,” saying that Congress could not limit his powers and refusing to reveal his signing statements. His approach was dubbed “the imperial presidency.”
Taxation is a classic example of the power of independent agencies. Congress has passed a relatively simple tax code but left it to the Internal Revenue Service to make rules that result in a complex body of laws that sometimes bend congressional intent.
Adding to the limits on Congress, the Supreme Court said that it alone can determine whether the laws passed by Congress and signed by the president are allowed by the Constitution. Also, in the absence of congressional legislation, it may make law.
In Roe v. Wade, the Supreme Court ruled that states could not ban abortions, a decision made in the absence of congressional action on the subject. It has led to continual concern that the Court might reverse itself, in effect repealing judge-made law, while Congress remains on the sidelines.
Legislative control by Congress seems to have faltered if not failed. Congress flexes its muscles mainly when it blocks a president of the opposing party by deploying the discredited filibuster. Otherwise, it readily yields power to presidents, backed by their appointed courts.
The relationship between the states and the federal government they created has also deteriorated.
Upon independence, each state government exercised full governmental powers. Because defense, trade, and mail delivery called for common action, Washington and Hamilton led the drive for states to delegate limited powers to the federal government subject to a Bill of Rights protecting certain individual liberties.
In 1819, the Supreme Court ruled that the Constitution gave the federal government implied powers, not expressly delegated, and it was supreme over the states in exercising those powers. Gone was the claim that the states had retained considerable power when they delegated some to the federal government. The system flipped.
The greater power of the federal government to tax and borrow compared with the states also enhanced its dominance. It controls funds for essential public activities ranging from roads to health care.
When the Constitution was amended to require that U.S. senators be elected by popular vote and no longer by state legislatures, that action virtually ended shared state-federal governance.
Checks and balances have eroded, and the focus is more on executive dominance than cooperative leadership. The natural alternative to representative democracy is authoritarian rule, strong and arbitrary government free from control by the governed or their representatives. It could happen here.
The people still retain the voting power, but many states are now moving aggressively to suppress that power based on unfounded and cynical claims about the need for more ballot security.
Though it seems unlikely, Congress might yet act like the lawmaker and not a mere partisan battlefield and revive the essence of the American experiment. That could determine what the U.S. becomes in another 245 years.
Gordon L. Weil formerly wrote for the Washington Post and other newspapers, served on the U.S. Senate and EU staffs, headed Maine state agencies and was a Harpswell selectman.
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