The Administrative State Is Put Back in Its Constitutional Place (THE EDITORS, June 28, 2024, National Review)

Scarcely anything was more central to the people who framed our Constitution than the separation of powers. John Adams, in the Massachusetts Constitution of 1780, wrote that it was designed “to the end it may be a government of laws, and not of men.” It was a topic upon which the men who gathered at Philadelphia in 1787 were effectively unanimous, having already incorporated it in the constitutions of their several states. Even more so than federalism, individual rights, or enumerated and limited powers, it was the separation of lawmaking, law-enforcing, and law-interpreting powers that they saw as the safeguard against the erosion of all the other elements of the constitutional system. And at the tip of the spear of the law, they placed the jury system, giving a share of the judicial power to ordinary citizens.

This system has always had its critics. The framers of the Confederate constitution of 1861 watered it down in their own version. Woodrow Wilson and other Prussian-inspired intellectuals thought it was old-fashioned, inefficient, and an obstacle to rule by modern experts. Wilson’s heirs to this day defend the bureaucratic administrative state, which interprets its own laws, runs its own courts, and is insulated from removal by the executive.