A first principles approach to restoring self-government
Our Constitutional order is the best system of government ever created. It is not, however, without its limitations. As James Madison explains in the pages of the Federalist, the Constitution alone can provide nothing more than “parchment barriers against the encroaching spirit of power.” Ultimately, the social compact that binds our Union together is only as strong as the will of the American people to preserve it. To this end, our forefathers resolutely believed that “no free government, or the blessings of liberty can be preserved to any people, but by frequent recurrence to fundamental principles.”
Unfortunately, it has been quite some time since our political system has operated from a commitment to first principles. The effect of this negligence has been detrimental to the health of our body politic. It is no coincidence that as power has become increasingly concentrated in an unaccountable and overbearing administrative state, the people’s faith in our national institutions has drastically declined. Recent polling suggests that as few as four in ten Americans have any degree of confidence in the federal government to handle domestic problems.
The silver lining is that the people’s trust in their state governments remains comparatively high, with roughly six in ten Americans expressing at least a “fair amount” of confidence in their state governments. However, this metric is no cause for celebration in itself. A 60% approval rating may be considered good news for an individual public official by the standards of modern politics. But when talking about the people’s trust in their institutions—the very framework of our constitutional system—being a stone’s throw away from nearly half of the electorate expressing very little to no faith in their state governments is alarming.
If the people’s faith in our institutions does not begin to improve, our constitutional order may soon face a crisis of legitimacy. To both preserve and restore self-government in America, lawmakers must heed the long-neglected wisdom of our forefathers and return to first principles.
Of course, such a return first requires an understanding of what exactly those principles are. Put simply, first principles speak to the very essence of what it means to be a free people. They are what define the ends towards which our society is directed and the best means of fulfilling those great objects. Luckily, our lawmakers need not become philosophers in order to understand the theoretical framework of the American regime; they need only consult the wisdom of our founding documents. A good place to start is the Declaration of Independence and the bill of rights of the state constitutions, which provide succinct articulations of the “self-evident truths” that define our Founding principles.
These principles can be summarized as the belief that all men are by nature free and equal and endowed with certain inalienable rights, that government is instituted for the common good and not for the benefit of a privileged few, and that all legitimate authority is derived from the people, who possess the indisputable right to alter or reform their government whenever they may deem it necessary for their joint happiness.
In support of these higher principles, our Founders devised a carefully crafted science of government premised upon representation, the separation of powers, and federalism. By and large, however, we have strayed from a faithful implementation of our Founders’ science of government at both the state and national level. The reason for this departure is the prevailing belief that our traditional system of government is incompatible with our “increasingly complex society, replete with ever-changing and more technical problems.”
What this view fails to account for is that our Founding principles are not historically contingent on a pre-industrial society. As explained by Alexander Hamilton in Federalist 31, just as there are certain universal truths in mathematics, such as the fact that “all right angles are equal to each other,” so too are there political “axioms” that remain universally valid across time.
These axioms dictate that consent is still the highest measure of legitimate government today as it was in 1776. Nor is the combination of legislative, executive, and judicial authority in a single body any less dangerous to the liberty of the people. The issue then is not whether our society has progressed beyond our Founding principles, but whether we still cherish our liberty above all else.
Today, our national government operates from the misguided belief that “expertise” is more important than consent. So long as states continue to operate on this same standard, they will remain at a perpetual disadvantage. If the contest of who ought to govern is settled according to the standard of expertise, the vast technocratic resources of the federal government will always come out ahead of state administrators. However, if in accordance with first principles, consent and accountability are once again made the standard of just government, then the script is flipped. In terms of embodying the popular will, the unelected bureaucrats of the administrative state will always remain vastly inferior to the duly elected representatives of our state governments.
Therefore, the initial step in reorientating our politics towards first principles involves restoring the proper division of government at the state level. That means any regulations with the force of law are passed by legislatures, rather than promulgated through administrative fiat; it means that administrators are held accountable to the people through their elected representatives; and that regulatory disputes are settled in accordance with the due process of law in a proper judicial setting.
Constitutionally, this would require states to ensure the existence of more forceful separation of powers provisions. Ideally, state constitutions would explicitly forbid the branches of government from delegating their authority or exercising powers that belong to another branch. States would also have to amend their APAs (Administrative Procedures Acts) to deprive agencies of broad rulemaking authority. At the executive level, protections should be reduced for state administrators to ensure accountability to popularly elected governors. Meanwhile, the quasi-judicial function of agencies in adjudicating regulatory disputes ought to be transferred to official courts of law.
It is understandable that state lawmakers may be particularly hesitant to tamper with their APAs. To be clear, a proper constitutional balance does not forbid state legislatures from empowering agencies to respond to contingencies or exercise discretion in administering programs. The goal is to prevent the enactment of policies that will have a significant effect on the people’s liberty without the approval of their duly elected representatives. A pertinent example is the recent decision of several state environmental agencies to ban the sale of new gasoline powered cars after 2035. Such policies are simply too consequential to be enacted without the explicit consent of the American people. So long as state legislatures continue to allow the delegation of broad rulemaking authority to unelected agencies, this most basic standard of just government will continue to be eroded.
Once states have set their houses back in order by restoring their constitutional equilibrium, they will be in a better position to reclaim their proper role in our federal system as the people’s agent of first resort regarding domestic matters. However, institutional reforms are only the beginning. State lawmakers must be prepared for the responsibilities associated with reclaiming their rightful authority and continue to rely on first principles as their guide in the everyday administration of government.
To this end, a first principles approach to governance is not about simply looking at what the Founders did and then applying the solutions of yesterday to the problems of today. Rather, it entails asking what the Founders would do and meeting the challenges of the moment through an adherence to timeless standards of right and wrong. This ability to effectively apply universal principles to particular circumstances is known as prudence—practical wisdom—and is the highest mark of good statesmanship.
Pivotally, when prudence is properly adhered to, it transcends all partisan considerations. Therefore, a commitment to first principles would involve lawmakers becoming less concerned with whether a policy is considered a Democratic or Republican position and begin considering whether a policy undermines or promotes the liberty of the people and the common good.
The lawmakers capable of abstracting from the partisan squabbles of the moment will likely find wisdom in elements of both parties’ traditional platforms. For instance, an election reform law derived from first principles may involve both the elimination of absentee and early voting, but the implementation of open primaries and ranked choice voting. In another instance, it may involve eliminating DEI programs within state systems of higher education, while raising taxes to increase the funding for land-grant universities. Or it may involve reducing unemployment benefits, while providing guaranteed paid family leave for new mothers.
Whatever the case, the policy decisions that will lie ahead for lawmakers once they reclaim their rightful position in our constitutional order will not be easy. It will demand the courage to make controversial decisions on behalf of the common good and be held directly accountable for the consequences by an attentive public. However, if they can restore accountability to the operation of government, they will reap the benefits of the American people’s reinvigorated faith in our institutions. By returning to the fundamental principles of our past, we can restore and revitalize our system of self-government for the future.
Samuel T. Lair is a Ph.D. Candidate at the Hillsdale College Van Andel School of Statesmanship.
