by Mitch Kokai
Senior Political Analyst, John Locke Foundation
Jay Cost argues at National Review Online that the federal government’s upper legislative chamber and its highest court hold more power than the Founders would have been likely to support.
In the context of 1787, the design of the Senate made a great deal of sense. Yes, it was a parochial, state-based institution, but it was to legislate for a government that handled only certain, enumerated tasks.
Yet following the Great Depression, the constitutional schema was largely inverted. Whereas once the national government really claimed power only to do what was explicitly allowed under the Constitution, it subsequently began acting as though it was allowed to do anything that was not explicitly forbidden.
Despite this massive increase in federal power, the institutions tasked with wielding this power have remained more or less the same. While the Framers created a sensible balance between structure and power, subsequent generations have vastly expanded the latter while leaving the former the same.
No wonder our system seems so dysfunctional! What we have done since the Great Depression is analogous to trying to build a 50-story skyscraper atop a foundation meant for a two-story home. That would make no sense for an architect of buildings, so why should we expect it to work for an architect of governments?
In the case of recent progressive bellyaching about the Senate, the immediate context is the Supreme Court, which serves as an excellent example of how expansive federal power makes little sense with the limited institutions we have retained.