The House Judiciary Committee yesterday raised the overarching question of our generation: will the American Constitution stand?
All the laws passed under that Constitution have elaborate enforcement mechanisms backed by armed force -- but the Constitution itself has no such enforcement guarantees. It was designed to be internally self-enforcing, with the powers of government clearly divided among three separate and equal branches of government.
But this self-enforcement mechanism can only work when the powers are evenly divided, when those who exercise those powers are devoted to that Constitution, and when the people insist on it.
This is the great question for which our generation is deeply answerable. Are we allowing the Constitution to disintegrate before our eyes?
The Constitution makes very clear that only Congress may make laws, and that the principle responsibility of the executive is to take care that those laws be faithfully executed. Yet the executive has increasingly asserted sweeping powers to unilaterally nullify laws that it dislikes, to pick and choose who must obey the law and who need not, and even to impose entirely new laws that Congress has explicitly refused to enact.
James Madison, the father of the Constitution, said that its single most important feature was giving the legislative and not the executive branch the decision of war and peace. Yet the executive now asserts the authority to attack other nations without Congressional authorization.
The Bill of Rights protects every American from retribution for expressing their political beliefs; it protects a free press from intimidation; it protects the free and open expression of religious beliefs; it protects the means of individuals to protect themselves and their freedom; it protects every individual from having their records searched or their property seized without due process of law. And yet, these fundamental rights have been made a mockery by the agents of this administration from the IRS to the Justice Department to the NSA.
The rot began long before this administration -- but under this administration it has become a crisis.
All this is happening, we are told, for the common good. Ours wouldn't be the first civilization to succumb to the siren song of a benevolent and all-powerful government. But every society that has fallen for this lie has awakened one morning to discover that the benevolence is gone and the all-powerful government is still there.
Much of the structure of the American Constitution that has preserved our liberty for 225 years, that has contained the unwarranted expansion of governmental power and that has preserved the natural and individual rights of every citizen, has been allowed to decay.
The form is still there -- the institutions continue to function -- but they no longer serve their principle role to protect the rule of law and the liberty of the people.
Here in this Capitol, we are surrounded by the symbols of the Roman Republic. They should be a warning to us. The Roman Senate continued to exist 400 years after the fall of the Republic -- but its nature and purpose had been emptied.
Chairman Goodlatte quoted Gibbon yesterday, who observed that "the principles of a free constitution are irrevocably lost, when the legislative power is dominated by the executive."
That is precisely what is happening.
The institutions of our American Republic continue to operate, but the structures within it are rapidly degrading. In this condition, our Constitution is becoming like a rotting porch: we can still discern its form and purpose, but the structure that gave it strength and support is hollowing out through years of abuse and neglect until one day it will simply collapse.
The Judiciary Committee hearing yesterday was the first step by the Congress to assess the harm already done and to begin reversing that damage before it is too late. But I must warn that in its current, divided condition, Congress cannot do so alone. Ultimately, it will require the active assistance of the rightful owners of the Constitution, the American people.
How ironic it would be if the liberties of this nation, heroically defended by sacrifices of nine generations of Americans on far off battlefields, might someday be carelessly thrown away here at home.
Let that not be the said of our generation. Let it be said instead that just when our Constitution seemed most in peril, this generation rose up, insisted on absolute fidelity to the Constitution by those it elected, and then went on to revive, restore, and preserve that Constitution for the many generations of Americans who followed.