Reviving a Constitutional Congress

Christopher DeMuth
Distinguished Fellow, Hudson Institute

Christopher DeMuthChristopher DeMuth Sr. is a distinguished fellow at the Hudson Institute. He served as president of the American Enterprise Institute from 1986–2008. A graduate of Harvard College and the University of Chicago Law School, he worked as a staff assistant to President Richard Nixon in 1969–1970 and as an administrator in the Office of Management and Budget and executive director of the Presidential Task Force on Regulatory Relief under President Ronald Reagan. From 1976–1980, he taught at the Harvard Kennedy School of Government and directed the Harvard Faculty Project on Regulation. He has also practiced law, and was for a time publisher and editor-in-chief of Regulation magazine.

Restoring Congress to a central position in government will clearly be a heavy lift; but not, I think, impossible. Americans like competition in government—we routinely elect Congresses and presidents of opposing parties, and an all-powerful executive state goes against our principles and traditions. Concentrated power leads to abuse and corruption, of which there is much on display today at the IRS, VA hospitals, and elsewhere. It is easy to imagine a major upheaval paving the way for a congressional resurgence.

Such a resurgence should be of particular importance to those of conservative and libertarian persuasions. This is more than a matter of today’s conservative Congress standing up to today’s liberal President. A government where more decisions are made by Congress and fewer by executive agencies is going to be a smaller government, simply because of the incorrigible cumbersomeness of legislative decision-making. To say that the purpose of congressional reform is to restore constitutional balance is something of a slight: its purpose is also to restore limited government to some degree, because Congress’s sprawling, conflicted membership is itself a bastion of limited government.

Furthermore, Congress is not only a branch of power but also a “selfie” of the nation in full. It not only represents but portrays the populace—not with perfect resolution, but well enough to show each of us where we stand in the throng of fellow citizens who are our legal and political equals. A citizenry that permitted this portrait of its collective self to play a more central role in its government would need to be more classically liberal than ours has become. It would need to be more patient with disagreement, including intractable disagreement; more alert to the improving potential of dialogue, even when no decision ensues; less insistent on comprehensive plans and final solutions and capacious application of state coercion; and more attuned to the relative advantages of imperfect private markets and voluntary ordering.

In 1959, political theorist James Burnham wrote a fine book, Congress and the American Tradition, which identified in an earlier era many of the patterns of congressional decline that we see today. Burnham had many criticisms to level at Congress—don’t we all! But here is his conclusion:

       To ask whether Congress can survive is . . . equivalent to the question: Can constitutional government, can liberty, survive in the United States? This equation between Congress and liberty may at first seem paradoxical. Undoubtedly Congress has sometimes acted . . . in ways that have served to undermine both law and liberty, and it has done so both in consort with and in opposition to the other branches of the government. . . . The tie in this century and this nation between the survival of Congress and liberty is . . . historical and specific. Within the United States today Congress is . . . the prime intermediary institution, the chief political organ of the people as distinguished from the masses, the one body to which the citizenry can now appeal for redress not merely from individual despotic acts . . . but from large-scale despotic innovations, trends, and principles.