Happy Constitution Day!

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When I was a civil servant in the United Kingdom, I had a friend who worked at the Ministry of Defence. Part of his duties was to brief Ministers for debates in Parliament (under the British system, administration officials generally sit in the legislature). On one occasion, he needed to brief a Minister in the House of Lords about the British military presence in the Antarctic Ocean, which consisted of a specially outfitted ship called an Ice Patrol Vessel. The expense for the vessel had raised questions about whether it should continue operating. Throughout the briefings, my friend referred to it by the acronym IPV. Just before the Minister went to the floor of the House to speak on the subject he asked my friend, “One thing that’s bothered me—what is an IPV?” My friend apologized for his use of the acronym and explained that it stood for Ice Patrol Vessel. “Good, good,” replied the Minister. “And do we have one?”

One might ask the same of the U.S. Constitution. As CEI’s Dan Greenberg explains in a new paper published this week, the belief that the Fourth Amendment means that the government can’t steal our stuff may be misplaced. Legislatures in Florida and Texas have taken aim at the First Amendment, while the executive thinks it has power to stop landlords from evicting tenants or to mandate employers to require vaccines for their workers. Clearly, a plainly worded, short document isn’t enough to stop the people it is there to bind.

Yet the problem is deeper than that. As I explained in my paper “Democratic Capitalism,” we are actually currently living under two constitutions. One is that short, plainly worded document. The other is a shadow constitution of “super-statutes” and judicial precedent that neither Congress nor the courts think they can repeal or overturn. The courts treat these laws and judgments as if they have constitutional force. In particular, this shadow constitution erects a fourth branch of government, the administrative state, with its own courts and rulemaking bodies.

If we are to reclaim democracy, we need to ensure that this shadow constitution is properly subordinate to the real, actual Constitution. The courts could help us by repudiating judgments like Humphrey’s Executor or Wickard v. Filburn. The legislature could help us by reclaiming powers it has delegated to the executive, by passing a law like the REINS Act or by passing a package of measures that CEI’s Wayne Crews has deemed the Abuse of Crisis Prevention Act.

In the meantime, like CEI’s founder Fred Smith, we can recognize that the Constitution may not be perfect, but it’s much better than what we have now.