Constitutional Morality and the Rise of Quasi-Law
by Bruce P. Frohnen (Author), George W. Carey (Author)
Americans are increasingly ruled by an unwritten
constitution consisting of executive orders, signing statements, and other
forms of quasi-law that lack the predictability and consistency essential for
the legal system to function properly. As a result, the U.S. Constitution no
longer means what it says to the people it is supposed to govern, and the
government no longer acts according to the rule of law. These developments can
be traced back to a change in “constitutional morality,” Bruce Frohnen and
George Carey argue in this challenging book.
The principle of separation of powers among co-equal
branches of government formed the cornerstone of America’s original
constitutional morality. But toward the end of the nineteenth century,
Progressives began to attack this bedrock principle, believing that it impeded
government from “doing the people’s business.” The regime of mixed powers,
delegation, and expansive legal interpretation they instituted rejected the
ideals of limited government that had given birth to the Constitution. Instead,
Progressives promoted a governmental model rooted in French revolutionary
claims. They replaced a Constitution designed to mediate among society’s different
geographic and socioeconomic groups with a body of quasi-laws commanding the
democratic reformation of society.
Pursuit of this Progressive vision has become
ingrained in American legal and political culture―at the cost, according to
Frohnen and Carey, of the constitutional safeguards that preserve the rule of
law.
