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Whatever happened to the Constitution?

The Progressive assault on the Constitution of limited and divided powers gave us the sixteenth amendment (authorizing the income tax) and the seventeenth amendment (providing for the direct election of United States Senators) to the Constitution. This past week Paul Moreno decried the impact of these amendments in the column “How the states committed suicide.” When it comes to the damage done to the original Constitution by the Progressives, I would like to call for rollback versus containment (to use the old Cold War foreign policy terms).

But the most difficult issue before may be the depredation of limited government by the administrative state. (The assumption of royal or dictatorial powers by the Obama administration rivals it.) As Professor Jean Yarbrough stated here on Power Line, citing essays by Christopher DeMuth and Brian Callanan:

One of the things that truly alarms me is how little our fellow citizens, even moderately well educated ones, know about the parallel universe of the bureaucratic world. The DeMuth and Callanan essays provide a primer in what is going on with the executive and the regulatory agencies.

We need an updated online primer in American government and political thought. We all learn about the separation of powers and federalism, but don’t understand that these restraints do not operate in the administrative universe. Indeed, the administrative state was designed to overcome these obstacles. Our mission should be to educate Americans on the real effects of this turn toward administrative regulations and rules.

In the age of Obama Professor Yarbrough sees the arrival “not [of] soft despotism, but hidden and rather hard despotism for those who fall into the maw of the administrative state.” Professor Yarbrough cited the cases of Catherine Engelbrecht (IRS, FBI, OSHA, and ATF) and Craig Zucker (Consumer Product Safety Commission).

Last month the New York Times celebrated CPSC Chairman Inez Tenenbaum on the occasion of her departure from the agency:

When Inez M. Tenenbaum took over the Consumer Product Safety Commission in 2009, she found an agency in turmoil and uncertain of its mission to ensure that tens of thousands of products on American store shelves did not present a danger to buyers.

Inez M. Tenenbaum, seated, was given an ovation at her final commission meeting. Ms. Tenenbaum had no product safety experience when she was nominated to lead the agency.

By the end of her four-year term, which came to a close on Friday [November 29, 2013], she can say that she has presided over a significant increase of the agency’s powers. And Ms. Tenenbaum, 62, has not been shy about using them. The agency recently leveled its highest fine ever — $3.9 million — against Ross, the discount retailer, because it continued to sell what the commission said was defective children’s clothing, even after warnings from the agency.

She and the safety commission also waded into one of the most contentious topics in the sports world: protecting football players from head injuries. The result was the Youth Football Brain Safety initiative, which called for the replacement of youth league helmets with safer models paid for by the National Football League, the National Collegiate Athletic Association and the N.F.L. Players Association.

“I just felt like it was something that needed to be done,” she said.

Zucker isn’t celebrating the Tenenbaum or the CPSC; he is fighting back. The CPSC has already succeeded in putting his company out of business without benefit of a hearing. Sohrab Amhari told the story in a brilliant Wall Street Journal column. Now Zucker is resisting only the imposition of personal liability on him for the cost of recalling the perfectly safe Buckyballs product that the CPSC managed to kill without benefit of a hearing.

We have a long, long way to go to get back to limited government. As Professor Yarbrough observes, the road back has to begin with an understanding of how far we have been led astray and how we got here.

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