In the words of U.S. Supreme Court Justice Anthony Kennedy: "You cannot preserve what you do not revere. You cannot protect what you do not comprehend. You cannot defend what you do not know." To that profound statement, I would add: You cannot find what you do not know is lost.
Over the last century, our great nation has experienced a steady, and sometimes deliberate, drift away from its founding principles. Many have questioned whether our Constitution has been lost in the process — not physically lost, of course, but lost in the sense that, in forgetting about many of that document's most important features, we have ceased to uphold them and lost the protections they offer. Nevertheless, I am convinced that these features are not gone forever but lost in plain sight.
What is abundantly clear to most Americans is that big government spies on, lies to and targets us as citizens. It taxes us too heavily and regulates our lives relentlessly. And it does so in a manner that cannot be reconciled with the text and history of the Constitution. Americans intuitively understand that we have lost something over the years; they sense something is missing but aren't sure what it is or where to find it.
In my office in the Senate, I keep two stacks of documents, a visual reminder of one of the things that is lost when elected officials and citizens lose sight of the Constitution. The first is a collection of all the legislation passed by Congress in 2014; just a few hundred pages in length, this stack is only a few inches tall. The second is a collection of regulations adopted by federal agencies that same year; it is roughly 11 feet tall. The contrast is startling and serves as a reminder that most of our laws are now put in place not by Congress — which, according to the Constitution, possesses "all legislative powers" within the federal government — but by federal bureaucracies.
To be clear, bureaucrats have not stolen lawmaking authority from Congress. Instead, Congress has delegated that power to the executive branch by legislating in broad, lofty terms and then outsourcing the tedious and often controversial task of filling in the details.
The problem with this arrangement is not that members of Congress are inherently wiser than their bureaucratic counterparts; nor can it fairly be said that the latter are somehow incompetent or malevolent. The men and women who write our federal regulations are, for the most part, well-educated, hardworking and well-intentioned.
The problem is that far too many of our laws are made by men and women who are not elected and therefore are not accountable to the people governed by the rules being promulgated.
The Constitution gives Congress, not third-party federal employees, the power to make law. When Congress delegates that power, it interrupts the delicate system of accountability designed by our founding fathers. This system is neither liberal nor conservative, neither Democratic nor Republican; it is simply American. To the extent we have adhered to that system, it has served us well. But our willingness to neglect the Constitution has made us less free and subjected us to a form of government not of our own choosing.
