Founding

THE TRIUMPH OF FAITH OVER REASON:

After 1776, the founders designed a government that accounts for ‘a degree of depravity in mankind’ (Donovan Fifeld, July 16, 2026, The Conversation)

Hamilton, Madison and Jay responded to these criticisms as a group. Adopting the pen name Publius, they published 85 essays in New York newspapers supporting ratification. In defense of the Constitution’s proposal to increase the powers of the proposed national government, these authors turned to some of the most basic philosophical questions about humanity.

Each argued that the inherent flaws of human nature necessitated a strong government to check political abuse, self-interest and even violence that they saw as inherent in the fabric of human society. They rallied around the position reflected in Madison’s famous statement in the essay known as Federalist 51 that “if men were angels, no government would be necessary.”

The Federalist Papers include proposals for institutional solutions that sought to redirect the destructive drives of individuals toward positive social ends. To the authors, a new constitutional government that controlled both the impulses of the masses and the abuses of their leaders would serve as the means through which the new United States government could accomplish this task.

Each saw human nature as susceptible to corruption by base impulses and self-interest.

In Federalist 10, Madison argued that faction is “sown in the nature of man.”

Similarly, in Federalist 6, Hamilton rejected the commonly held idea that republics were automatically peaceful. Instead, he argued, political leaders and states were driven by ambitions and jealousies, which he saw as a characteristic shortcoming of the government under the Articles of Confederation as well as a law of nature governing relations between nations.

Hamilton wrote that if the states remained disunited, then “the subdivisions into which they might be thrown would have frequent and violent contests with each other.” To argue otherwise, he wrote, would be “to forget that men are ambitious, vindictive, and rapacious.”

Consequently, as Hamilton asserted in Federalist 15, governments must have effective coercive authority to enforce laws because they cannot rely solely on the goodwill and civic virtue of their citizens: “If there be no penalty annexed to disobedience, the resolutions or commands which pretend to be laws will, in fact, amount to nothing more than advice or recommendation.”

Ultimately, the defense of the Constitution provided by the Federalist Papers sought to frame the new government in terms of a skeptical view of humanity that recognized what Madison called “a degree of depravity in mankind.”

Man is Fallen.

THE KEEPING OF IT:

Nondelegation Without Chaos (John O. McGinnis, 11/03/25, Law & Liberrty)

If one theme unites the Roberts Court’s work in administrative law, it is a counter-reformation that recenters the Constitution’s basic architecture for the administrative state. Congress is to legislate; the president and his subordinates are to execute within a hierarchical, accountable executive; and courts are to exercise independent judgment in interpreting the laws. That settlement, grounded in the Constitution’s Vesting Clauses, animates a series of linked doctrines returning power to the institutions to which the Court believes the Constitution originally entrusted it.

The Roberts Court’s vision for the separation of powers points toward a stricter nondelegation doctrine. Delegation is Congress’s practice of permitting agencies to regulate conduct under broad authorizations that allow the executive substantial policy choice. These delegations have included authority to regulate in the “public interest” without further defining that term or directions to an agency to pursue an objective stated at a high level of generality, such as promoting public health, without indicating how much harm is consistent with protecting the public health. Such broad delegation threatens to make the executive the lawmaker by giving over to that branch the essential policy choices the Constitution entrusts to Congress. […]

The Framers recognized that the legislative power was the most important of all the powers delegated in the Constitution, because it was the only federal authority that could directly affect their domestic liberty. Legislative power—prescribing rules that bind private conduct—belongs only to Congress, and for good reasons. That assignment channels lawmaking through a deliberative, laborious, publicly accountable process. Justice Neil Gorsuch’s dissent in Gundy v. United States articulates this structure crisply: Congress must make the policy decisions; the executive may “fill up the details” or find facts that trigger rules Congress has created. That is the Constitution’s path to stable rules, fair notice, and political accountability.

A NECESSARY FUDGE:

Two Rulings That Are Impossible to Reconcile (David Dayen, June 29, 2026, American Prospect)

You can make at least a colorable argument that a president should be allowed to have control over their subordinates, despite the damage it does to an agency structure set up by Congress. But when you add in the carve-out for the Federal Reserve, it quickly becomes totally ridiculous. There is no way to hold the two rulings together at once.

This is entirely accurate: as a constitutional matter, the Fed can not be independent.

WE ARE ALL GORSUCHIAN NOW:

After Trump: Proposals for a Post-Authoritarian America (Shikha Dalmia and Andy Craig, Jun 15, 2026, The Bulwark)

The Declaration not only affirms the right of a self-governing people to “alter or abolish” an abusive government; it affirms their duty to “institute new Government.” And our constitutional system established mechanisms by which Americans could restructure our government when necessary. After FDR broke the two-term norm, the Twenty-second Amendment imposed presidential term limits. Following Nixon’s abuses, Congress enacted a suite of guardrails—the National Emergencies Act, the War Powers Resolution, the Impoundment Control Act—to constrain an overweening presidency.

Trump knocked down each of these, and they will need to be not just rebuilt, but strengthened. Internal guardrails such as inspectors general, expert commissions, and the nonpartisan civil service must be insulated from at-will removal by the president. But Trump has created a blueprint for future authoritarians, so restoring the pre-Trump status quo won’t be enough. Two deeper structural reforms are essential.

First, strip the executive of the massive powers that have accumulated over the last century. Congress must claw back discretion over war, economic policy, and emergency powers it has ceded to the president. Many statutes will have to be completely rewritten. Most urgently, Congress should enact an automatic thirty-day sunset on presidential emergency powers unless it approves an extension—reversing the current perverse arrangement wherein Congress must pass a veto-proof resolution to stop powers already invoked. Had such a rule restricting the exploitation of emergency powers been in place, Trump could not have used them to impose his “Liberation Day” tariffs.

Second, make the powers retained by the executive subject to greater oversight with real consequences for abuse. No president should fill the cabinet with loyalists and rogues whose chief qualification is personal allegiance, or fire experienced officials for refusing to do his illegal bidding. Congress should sharply limit acting appointments and ensure major executive roles cannot be filled indefinitely without Senate approval. White House staff, advisory by design, should be statutorily barred from issuing directives to Senate-confirmed agency heads—as Stephen Miller has done, creating a shadow chain of command beyond constitutional accountability.

Congress must also adopt “for cause” standards for oversight officials, require written findings before removals take effect, and—most crucially—tie department funding to compliance with these safeguards. Treasury Secretary Scott Bessent might have thought twice before stonewalling the Senate Finance Committee this month on whether Trump and his family retain IRS audit immunity if he feared having Treasury’s funding halted.

Reseparate the powers.

WE ARE ALL GORSUCHIAN:

PODCAST: Neil Gorsuch on the Declaration of Independence, Originalism, and Separation of Powers: “There was nothing inevitable about it. Absolutely nothing,” the Supreme Court justice tells Reason’s Nick Gillespie. (Nick Gillespie, July 2026, reason)

Reason: What is the main lesson America should be thinking about as we approach our 250th birthday?

Gorsuch: We’re going to have a lot of fireworks, and there are going to be some good barbecues and parades, but I hope we take a moment, too, to reflect on the gift we’ve been given and the challenge we face. What I mean by that is, the Declaration of Independence had three great ideas in it: that all of us are equal; that each of us has inalienable rights given to us by God, not government; and that we have the right to rule ourselves.

Our nation is not founded on a religion. It’s not based on a common culture even, or heritage. It’s based on those ideas. We’re a creedal nation. I hope we take a moment to reflect on that and to recommit ourselves to that.

One more thing: the courage it takes to defend those ideas. They were not inevitable. The stories of the men, women, and children in the book, I hope, will inspire children to realize the courage it takes to carry those ideas forward in their own time.