October 28, 2015


The Countdown to the Convention series previews some of the outstanding panels and events at our upcoming 2015 National Lawyers Convention. Join us November 12-14, 2015 in Washington, DC for three days of debates, discussions, and networking with preeminent legal minds. 15 days to go…

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When the Federalist Society asked me to moderate the “Original View of Congress” panel discussion, I noted that I could claim no insights on that subject. I was assured, however, that the expertise would be provided by the panelists. Nevertheless, I am able to affirm that whatever that original view may have been, the Congress we have today has wandered a fair distance from the one the Founders had planned to give us.

Those who crafted our Constitution were a remarkable group of men who had immersed themselves in the history of democratic governments over the prior two millennia. What they learned was that the historic enemy of individual freedom was the drive for power that is imbedded in human nature, whether exercised by an individual despot or a parliamentary majority. They therefore placed careful limits on the powers with which Congress would be endowed.

During our first 140-odd years, Congress and a pattern of presidential vetoes did a pretty good job of maintaining those limitations. This self-discipline, however, began to unravel with the advent of the New Deal. Thanks to expansions of congressional authority that the Supreme Court has sanctioned in a series of unfortunate decisions, virtually all of the restrictions that its framers had so carefully written into the Constitution have now been dismantled.

As a result, for decades now Congress has been so overloaded with responsibilities the framers never intended it to assume that it has felt compelled to delegate more and more essentially legislative responsibilities to administrative agencies that, as a practical matter, are accountable to no one. The result is that the directives that most directly affect Americans today are to be found not in the 34 or 35 volumes of the U.S. Code, but in 235 volumes of fine print regulations that have the force of law and now reach into every corner of our lives.

For better or worse, that is the administrative state that Congress has given us. Our panelists, who are accomplished constitutional archeologists, will describe the one that the framers of the Constitution had intended.


James L. Buckley is the moderator of the NLC Showcase Panel “The Original View of Congress”

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