Woodrow Wilson, Living Constitutionalism, and Our Bloated Administrative State

This article was originally published on the Scholastic Legal Blog’s website.

Woodrow Wilson is best known for pioneering efforts to establish a League of Nation and leading the country through World War I. His contributions to constitutional interpretation, however, often go unrecognized. His novel interpretive framework was devised to sanction an administrative state where bureaucratic experts could compose and enact national policy. There was just one obstacle: the Constitution.

Wilson imagined an administrative state where efficient executive branch cognoscenti could legislate on behalf of Congress. However, the Constitution’s separation of powers clause, considered by many to be more important to safeguarding individual liberties than the Bill of Rights, prohibited the executive from drawing on legislative and judicial branch powers to create and enforce directives. Wilson himself admitted his administrative system had to be “independent of … constitutions.” Wilson believed that the circumstances of the time — a Congress unable to keep pace with Gilded-Age corporate shenanigans — warranted such measures.

In living constitutionalism, Wilson saw a basis for expanding state power; and in Wilson, living constitutionalism had found a champion. “Society,” Wilson argued in his 1908 book Constitutional Government in the United States, “is a living organism and must obey the laws of life, not of mechanics; it must develop.” That is, as society evolves, the Constitution adapts. “Living political constitutions must be Darwinian in structure and in practice,” Wilson avered. Others have explained the theory a different way. Justice Sutherland explained the theory of a living Constitution as “expand[ing] or contract[ing] to meet the new and different conditions.” I personally favor Justice Thomas’s equivalent statement: “You make it up, and then you rationalize it” with vague characteristics of contemporary society.

However, even Wilson recognized the need for a precise governing document — something living interpretations do not promote. Wilson details Britain’s need for a written and specific Magna Carta. “The difference between a constitutional system and an unconstitutional is that in a constitutional system,” Wilson wrote, “the requirements of opinion are clearly formulated and understood, while in an unconstitutional they are vague and conjectural” (emphasis added).

Conjectural indeed was the Supreme Court’s reasoning in the ensuing living constitutionalist opinions. In the decades following Wilson’s book and the nomination of several “innovative” justices, new rights began to appear in the constitution: the “right” of parents to make decisions concerning the custody of their children (Toxel v. Granville), the “right” to abortion (Roe v. Wade), the “right” to die (Cruzan v. Missouri Department of Health).

Yet the coup de grâce of the Darwinian theory is found in its attacks on our separations of powers. These attacks often and unsurprisingly put individual liberties at risk. Since it creeped into the United States Code, the Administrative Procedure Act has allowed Executive Branch bureaucrats to, through Congress’s delegation of power, create national governing rules (a strictly legislative function) and arbitrate cases (a strictly judicial function). These bureaucracies can litigate both public and private rights. Defendants in administrative tribunals have little chance at winning. And even if you were to meet the bureaucrats off of their turf — in a real courthouse — they would still likely win under the Chevron doctrine.

The Chevron doctrine forces judges to accept any “permissible construction” of the statute proposed by the government. The judge is bound to accept the government’s interpretation even if he finds that it is not the most logical one. He is even bound if the government’s interpretation is inconsistent with the government’s previous interpretations of the same statute. This practice deprives individuals of the chance to conform their conduct to the laws, and allows political agendas to infect the judicial process.

Wilson’s vision of allowing efficiency has also backfired. Justice Neil Gorsuch in A Republic, If You Can Keep It details the administrative state’s penchant for overlegislating. Their diktats in 2016 totalled “3,853 rules, while Congress passed and the president signed ‘just’ 214 bills.” In 2012, “the Code of Federal Regulations exceeded the number of pages in the United States Code by a factor of nearly four — topping out at 160,000 pages.” Neither businesses nor even the government can keep track of all the regulations. Such was the case in Caring Hearts v. Burwell, where the government retroactively fined a small business $800,000 for failing to abide by rules that were not in effect at the time of the small business’ actions. “The agency had apparently written so many new legally binding rules that even it had lost track of all the changes.” No votes were cast in these bureaucrats’ names, and Madison’s promise that legal obligations would not be “so voluminous that they cannot be read” has been broken.

Still, some progress is being made to combat our unaccountable administrative state. In Seila Law v. Consumer Financial Protection Bureau, decided earlier this year, the Supreme Court struck down portions of a law which forbade the President from terminating the Director of the Consumer Financial Protection Bureau at-will.

Seila Law brought the CFPB and agencies like it one small link closer to the voter. Its effects on combatting our gross bureaucracy, however, will likely be limited. Only a full return and strict adherence to the system of government our Framers imagined — separations of powers between three co-equal branches — will have a lasting impact.

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