Hold Politicians’ Feet to the Fire: A Citizen’s Checklist for Assessing Government Actions
FEW PEOPLE STOP TO THINK about the importance of the first three words of the U.S. Constitution: “We the people.” That simple phrase is the heart of a revolution in the history of governance and the key to American exceptionalism. We, the people, grant rights to the government. Rights are not granted to us by a benevolent monarch (whose heirs could change their mind). The people of the United States grant rights to the government, not the other way around—a fact that we emphasize by further limiting the powers of the government through the first 10 amendments to the Constitution. In many ways, this vesting of power with the people, rather than the government, also charges the people with the responsibility to keep their own checks on government action and expansion, demanding correction where necessary.
Constraining the power of the government is a founding principle—perhaps the founding principle— of our country. So determined were the Founding Fathers to express clear limitations on the scope of federal power that their first changes to the Constitution were to clarify the things that the government was not allowed to do.
Contrast this pattern, if you will, to the way that legislation proceeds in modern times, with nearly every focus on adding to the reach and power of the government, be it federal, state, or local. Judges squint at the Commerce Clause to try to find even broader interpretations to legitimize Congressional actions that go far beyond what the framers of the Constitution must have imagined.
But there is a logic inherent in the principle of constraint and limitation, and nearly every other founding principle can be found in its wake. For example:
Individual Liberty. Perhaps the one item on which nearly all Americans can agree, regardless of political persuasion, is the centrality of individual liberty to the American philosophy of government. While we may dispute where the lines of liberty and responsibility cross, or where one person’s liberty should take a backseat to other more fundamental principles, we remain generally united on the principle that the government must not infringe upon certain intrinsic rights.
Respect for Free Enterprise and the Free Market. So much of the history of America’s Founding revolves around the clear desire to conduct one’s business free from government interference. We are, in essence, a country partially founded on the notion that taxation is a serious and generally undesirable matter. Yet, while there is no shortage of defenders of individual liberty, too few note that the free market is an extension thereof. After all, what good is personal freedom if it ends the moment you try to put a roof over your head or food on your table?
Respect for Tradition, Family, and the Foundations of Our Society. Government should not attempt to engage in social engineering or undermine the family. This principle includes respect for both religious freedom and religious liberty, that difficult combination of rights that guarantee both our right to practice our religion and our freedom from government intrusion, denominational favoritism, or even policies that are hostile to religious groups or agencies. It also includes an understanding of the importance of societal mores, the unwritten traditions and practices that are more deeply ingrained than any law and operate as both the glue that holds us together and the oil that allows our society to function.
Judicial Restraint. The courts should practice restraint in the same way that the legislative and executive branches should. This restraint includes staying within their role as an interpreter of law and not expanding their power to create legislation from the bench.
Executive Restraint. While the judicial branch has received more attention for its forays into legislative action, the executive branch has been quietly growing and creating its own body of law based on the regulatory power of the executive agency. Not only does this practice muddy the waters of accountability, but it deprives the people of their usual avenues of redress in legislative matters. The executive’s proper role as enforcer of the law carries with it a position of significant public trust (especially as it wields the force—the gun—that demands adherence to the law). Therefore, we must be as wary of efforts to expand executive power as with efforts to expand the power of all other branches of government.
Legislative Restraint. As with the other branches, it is important for the legislature not to overstep its constitutional bounds. While other branches may dabble in legislation, the way that we identify a lack of restraint on the part of the legislature is by observing that there is too much legislation: laws passed without a sense of accountability or without a practical method of enforcement; onerous laws that place too great a burden on individuals or businesses; laws that meddle in the domain of the family, parental rights, or matters of individual liberty; and laws that abuse the People’s trust as well as their treasury. The list goes on and on.
What do we do when the branches of government fail to check each other or limit assaults on liberty? Ultimately, it is the responsibility of the citizenry to keep watch on them and demand responsibility and accountability. That, of course, raises the question of how to discern the difference between the responsible and irresponsible government action. The following is a guide that helps identify how well the measure in question fares in a point-by-point checklist that evaluates the measure in relation to fundamental principles of good, constitutional government.
Government Action Checklist
In order to evaluate pending legislation or other government actions, ask these questions:
Is the action necessary?
It is astounding how often the inquiry could end after this simple question. A significant amount of legislation and other government action is redundant, spurred by vanity or special interests, incapable of properly addressing the problem it seeks to solve, or otherwise simply unnecessary.
Has there been a realistic and unbiased examination of the probable consequences of the action, including social, cultural, and financial consequences?
Taking responsibility for legislation means knowing as much as possible about the probable results of that measure as well as understanding the law of unintended consequences. While it may not be possible to know every conceivable cause/effect scenario, an effort must be made to evaluate the total impact of the measure in question.
What will the action cost and who will pay?
These questions are obvious ones but are not necessarily easy to get good answers for—a sign, of course, that the measure in question is very troubling and will likely fail a number of other items on this list.
Has there been a serious and unbiased examination of the constitutionality of the action?
The legislature should not shirk its own responsibility to the Constitution by passing off questions of legality to the courts. Not only is this practice one route to the slow erosion of our basic rights, but it also wastes taxpayer funds at every level of government.
Is the proposed law enforceable?
A particular vulnerability of many noble-sounding laws is that they are not enforceable. Enforceability should be considered for every proposed law. The question is not only whether it is possible to enforce the proposed measure, but also whether it is practical to do so given the resources available.
Will the action’s results be evaluated objectively?
The rubber meets the road when we ask whether the consequences of the legislation have been thoroughly considered. If there is no interest in objectively measuring whether the action meets stated goals, then one must wonder what the true purpose of the law is.
Who is responsible for implementing, enforcing, and evaluating the legislation?
Be especially wary of those measures that require new agencies, divisions, or departments in order to be implemented. The natural tendency of government bureaucracies is to grow, and they’re very hard to cut back once they’ve been created. And as government grows, individual rights shrink.
Does the action infringe upon any individual rights or disrupt important societal foundations?
This question concerns not only infringement of basic constitutional rights (like religious liberty or speech), but the maintenance of respect for societal foundations and mores, such as the right of parents to raise their children according to their beliefs. Such rights must be balanced against issues of public policy and safety, but the governmental interest must be a strong one to justify state intervention.
Does the action create a burden for business or infringe unnecessarily upon free enterprise?
The concern here is not just about maintaining public policies that will benefit the economy, but also about a more fundamental notion: that the free market is an essential foundation of individual liberty and therefore the government should keep free enterprise free.
Does the proposed law create accountability for those responsible for passing and enforcing it, ultimately reserving power to reverse it in the hands of the voters?
When every other safeguard fails, the one remaining protection for the people is that they can ultimately hold their elected representatives accountable and thereby find a way to address their errors. In addition, recent history has demonstrated that a lack of willingness to enforce laws already in existence has exacerbated existing problems. Laws should include accountability measures for those required to enforce them so as to ensure that they are involved in the evaluation of the feasibility of the legislation and do not “pass the buck” on their own responsibility once a law is passed.
Ms. Hill is a policy analyst at the Grassroot Institute of Hawaii. This article is adapted from an article previously published by the Grassroot Institute.