Recently President Obama has spoken several times about his intention to use “executive orders” to bypass Congress and pursue things he wants accomplished.
In addition to showing a certain contempt for representative self-government (Congress is elected by the people, is accountable to them, and is not a mere inconvenience to be shunted aside by an aggravated chief executive), Mr. Obama’s approach veers dangerously into murky waters. His potential actions will have to be scrutinized for their constitutionality, not only as to whether they violate something explicit in the Constitution, but also if they create or expand powers about which our charter text is silent.
Extra-constitutionality is no pretext for federal activism. Because the Constitution does not forbid something specifically doesn’t mean such action is authorized by the Constitution inferentially. The propositions of the Constitution define and limit the roles of the federal government, and do so definitively.
Both the Left and the Right use the Constitution’s muteness on any number of things as an excuse for federal legislation or regulation. But this is not to say that the Constitution makes room for them.
Otherwise, why would there be a Tenth Amendment, which states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” How would we know to what this amendment refers if the meaning of text regarding delegated federal powers was somehow opaque?
Or why would there be a process for amending the Constitution written within the text of that document itself? Why amend something whose words can simply be reinterpreted into a meaning commensurate with the political agenda of those in power?
With that said, an originalist reading of the Constitution does not mean that we compel wisdom and common sense to take a holiday. Prudence, the great qualifier of extremism and overreaction, is an intrinsic part of the conservative approach to politics (and life, for that matter).