| 摘要 | Editor's Note: This book review originally appeared in The Wall Street Journal on January 2, 2019. It was written by Yuval Levin and reviews Peter J. Wallison's new book, "Judicial Fortitude."
The American constitutional system is out of order. The basic shape of its dysfunction has been clear for decades, though its causes may seem obscure. At the core of the problem is the emergence, over the course of a century, of a fourth branch of government neither conceived by nor desired by the framers of the Constitution: a network of administrative agencies that combine legislative, executive and judicial powers and therefore threaten the integrity of the constitutional framework and the basic rights of the American people. This fourth branch was the brainchild of the early progressives and has generally advanced the agenda of the left, so conservatives have long been wary of it.
But conservatives often misdiagnose the process by which the administrative state has arisen. We emphasize the hyperactivity of the executive and judicial branches, and these are certainly part of the problem. But hiding in plain sight is a deeper cause: the willful underactivity of the legislative branch. In an effort to avoid hard choices and shirk responsibility, Congress enacts vague statutes that express broad goals, empower executive agencies to fill in the practical details, and leave courts to clean up the ensuing mess. The result can look like executive overreach and judicial activism, but the root of the problem is legislative dereliction.
To see that, however, is not yet to propose a solution. Congress is derelict because its members choose to be, so what can constitutionalist reformers do about it? Peter Wallison, a conservative legal scholar and senior fellow at the American Enterprise Institute, has stepped forward with a persuasive answer, and at just the right time. His book “Judicial Fortitude” argues that the dereliction of Congress is enabled by the failure of the courts to enforce the separation of powers, and so to insist that only Congress can make laws.
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Deference to the elected branches (and therefore to the will of the people) can be a judicial virtue. But in setting out the purpose of the courts, in Federalist 78, Alexander Hamilton argued that judges would also sometimes have to resist popular pressures that might deform the constitutional system. In the passage from which Mr. Wallison draws his title, Hamilton wrote that “it would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the Constitution, where legislative invasions of it had been instigated by the major voice of the community.” The particular crisis we now face can be hard to perceive because it takes the form of a delegation of legislative authority to administrative agencies. But it is no less a deformation of the system, because the courts acquiesce to this delegation. |
