The Question of Lawmaking

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I can hear the eyes glazing over. From Article I § 1 “We the People,” in a straightforward sentence loaned limited lawmaking powers to a Congress of the United States. What could be clearer?

Despite the clarity, most lawmaking over the last hundred years drifted from congress to executive branch agencies. Specialists in various disciplines from the environment, workplace and labor relations, education, energy, and the law itself (DOJ), busy themselves writing progressive regulations on behalf of the President. But, for many, the pace of transformation was still too slow. To speed societal progress, a recent democrat congress infamously exempted a couple of new agencies from congressional oversight: the Consumer Financial Protection Bureau, and Obamacare Death Panels. With several winks and nods over decades, the scotus found these and the more familiar administrative state to be thoroughly Constitutional. They are not; they evidence a dangerous corruption of lawmaking that if left unreformed does not bode well for the continuance of our once republic.

I trace much of the turmoil in Western Civilization to the struggle over, “Who or what body makes the law?”

Lawmaking is the central feature of government. In republics, lawmaking is the responsibility of representatives of the component members of society. Notwithstanding our beloved Constitution, I shake my head in disbelief when I occasionally read at conservative websites that modern America is a republic; it is hardly more a republic than Imperial Rome circa 300 AD was a republic just because emperors kept up the charade of republican institutions. Then, as now, what passes for republican government better resembles scenes of power-mad factions going at each other’s throats, rather than constituent members joined in common purpose to advance the best interests of the nation.

Over the next few squibs I will examine, through a unique lens, the chaos and struggle over lawmaking in an era that had big impacts on our Founding and Framing generation. From the experiences and writings of Algernon Sidney (1623-1683) and his times, there are lessons for contemporary America. Sidney’s times were those of transition, violent ones in which civil society ultimately limited the established executive and lawmaking authority of English monarchs. The Glorious Revolution of 1688 and English Bill of Rights in 1689 curtailed the king’s prerogative powers and finally established Parliament as the permanent lawmaking body of the constitution. As in Stuart England, and her mid-18th century colonies, turmoil once again surrounds the question of lawmaking in America.1

While we are fortunate that President Trump rolls back the regulatory state and asks congress for beneficial laws, recall that his predecessor made, ignored, and amended laws as his social justice passions directed him. James Madison warned that his contemporaries in revolution did not fight and die to establish an elective despotism. For those who stubbornly assert America is still a republic, I say that the law in republican free government can never be at the discretion of one man with a pen and a phone.

1. Social justice federal district courts breezily usurp the Constitutional and statutory authority of President Trump to protect the nation from barbarian muslims. In this, they assume for themselves the lawmaking power of congress.