What would Edmund Burke do? What would he say should be done to save our Constitution and help us recover our republic?

Edmund Burke

This past week I spent some time at the Russell Kirk Center for Cultural Renewal. The incomparable Annette Kirk was hosting a group of students, scholars, and men and women of letters. We spent one morning talking about Edmund Burke. As happens so often in times such as ours, the discussion turned to what Burke might make of our current predicament. Several participants brought up the problem of our “distance” from Burke. The issue is not just one of time, of course, for permanent goods are by definition not bound by time. It is, rather, that our culture has become so corrupted by individualism, emotivism, and the demand for immediacy that it seems difficult to imagine how permanent standards of the true, the good, and the beautiful might be recognized, let alone applied.

Andrea Kirk Assaf (one of Mrs. Kirk’s beautiful and accomplished daughters) sought to bridge the gap with a kind of conversational gambit. “What,” she asked, “would Burke do? What would he say should be done to save our Constitution and help us recover our republic?” Having considered this question myself on many occasions, I had an answer ready to hand.

Burke, I argued, would have a very concrete set of reforms in mind to bring our constitutional order back into line with the first principles of our republic. I tried to indicate that these are principles we must renew and follow if we are to re-establish continuity with our unwritten constitution, adherence to our written constitution, and the grounds for a regenerated constitutional culture. In brief, we must re-establish, in practice, that Congress is and always must be the lawmaking body in our constitutional order. No longer can we tolerate lawmaking from every low-level bureaucrat in the land, from presidents convinced that their “Executive Orders” legitimately can do anything more set down internal rules for their employees to follow, and from arrogant judges operating under the delusion that a law degree qualifies them to serve as philosopher-statesmen.

What would such a program of action entail? At a minimum, it would mean removing our executive agencies—everything from the Environmental Protection Agency to the Department of Education—from the executive branch and returning their functions to Congress, where they belong. Administrators and writers of regulations in executive agencies would have to give up their power to rule according to a code they get to write themselves. They would trade in this power for the more modest duty of drafting detailed, substantive legislation which members of Congress must approve and pass in the form of actual public laws, to be signed or vetoed by the President. Then and only then would the executive branch take up its proper, limited role of enforcing the law through executive officers using the regular court system rather than our current sub-legal system of administrative courts.

This probably sounds a bit arcane as I have written it here. So let me spell it out in brief: Burke would say that the Constitution requires Congress to actually make all the laws. And that means shutting down almost all the executive branch and simply hiring more staffers to help Congress draft detailed laws. In this way, Americans would actually know what the law says before an enforcer shows up at the shop door to shut down the business they either own or work in. It also would mean that Members of Congress would take responsibility for the actual rules Americans must follow instead of claiming “we only said the water should be clean; we never meant to have any of those crazy regulations the EPA is enforcing.” Members of Congress would have to win or lose re-election on the basis of the laws we actually have to follow. And the President, while still having a lot of power, would only be able to exercise that power through open, legal means, overseen by real courts. At this point we would, like our forefathers, be ruled by law, rather than having to accept the bullying of agency heads and their coworkers in the administrative courts. Such a reform would entail a rather massive re-appropriation of power and funds (and responsibility) back to Congress to see that we are following the demands of our Constitution—which says Congress makes the laws and the President only executes them.

I was somewhat surprised at the response to this proposal. I had expected to hear complaints that what I suggested amounted to rearranging the deck chairs on the Titanic, that this was all procedure, and no substance. But people who spend time at the Kirk Center tend not to be so easily confused. Rather, the complaint was that this was too radical a suggestion for the conservative Edmund Burke to contemplate.

This is an understandable concern. Moreover, I do not flatter myself that I have come up with a magical solution everyone in government will recognize, adopt, and put into effect. But the problem is not that these reforms would be “too radical.” They would be no more radical than Burke’s preferred solution for the corruption in French politics of his time—a return to medieval local legislatures before the revolution, then, after the Jacobins had made such reform impossible, open war against them. Moreover, Burke the reformer had proposed several significant reorganizations of public power in Britain during his long political career. He had formulated a thorough reform of the military pay system at a time of massive corruption and other forms of favoritism. Even more important, he had proposed a massive overhaul of the system of honors by which the King had developed and used undue influence over Members of Parliament.

By Burke’s time, English Kings had long been in the habit of doling out positions, rooted in the medieval royal household, by which favorite, loyal servants who also happened to be important Members of Parliament, were given status and large amounts of money. The positions themselves had no real duties attached to them; they were intended as a means of genteel bribery. Burke recognized the system for what it was and became a moving force behind Parliamentary efforts at reform. Americans should be able to recognize Burke’s motivation, here. Parliament’s independence from royal influence had been severely compromised. Its Members were selling their votes and wider support to the King. It had to be stopped through reform.

Our constitutional system is far different from Britain’s, of course. But the principle that no person or institution should be above the law remains common to all free governments. Would that we as a people determined to remove from office any who sought to be above the law, and to reform our political system to make the law supreme.

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