Perspective: 5 ways the Constitution is being violated, according to conservatives

Recent years have seen a proliferation of commentaries openly criticizing the U.S. Constitution. “One of the biggest threats to America’s politics,” writes Jennifer Szalai of The New York Times, “might be the country’s founding document.”

Seeing more people openly questioning America’s foundational principles is alarming to many. Yet for decades now, various other writers and leaders have warned about more subtle and systematic threats to the Constitution. Ezra Taft Benson, who served in the cabinet of U.S. President Dwight Eisenhower and later became president of The Church of Jesus Christ of Latter-day Saints, spoke frequently about these threats — and U.S. Sen. Mike Lee, R-Utah, wrote a 2015 book entitled, “ The Willful Subversion of America’s Founding Document .” (Though serious concerns about constitutional violations are most often voiced from the political right, others including law professor Erwin Chemerinsky have brought distinctive concerns from the left, in “ The Conservative Assault on the Constitution .”)

Yet, whether liberal or conservative, many people today would be hard-pressed to identify how or why exactly some continue to believe the U.S. Constitution is being violated today. That’s why, when some raise concerns about the Constitution being “under attack,” the language can feel metaphoric, if not hyperbolic — with little understanding of what it actually means.

Drawing together observations from leaders, researchers and other political observers, we summarize below what some conservative people mean when they say the Constitution is “under attack.” Whether or not you agree with these concerns, we hope this will help support a deeper public discourse about the meaning of the Constitution in public life.

1. Presidents acting like kings

After a record-breaking flurry of executive orders in Joe Biden’s early days in office, the new president acknowledged “there’s a lot of talk with good reason about the number of executive orders that I’ve signed” — but clarified, “I’m not making new law. I’m eliminating bad policy.” (Biden’s 142 executive orders by September 2024 is significantly less than the 220 executive orders issued by the former administration from January 2017 to January 2021).

Across both major parties, many observers have noted an increasing tendency of U.S. presidents to “rule by executive decree” — passing down new edicts and fiats like a king would do, rather than restricting themselves to executing the law as decided by Congress.

Yet this is not a new problem, as illustrated in this 2017 analysis by a data journalist Dyfed Loesche in the early days of the Trump administration:

Historians document how the presidency “gradually supplanted Congress as the center of federal power” to the point that beginning with Theodore Roosevelt, “the president, and not Congress, established the nation’s legislative agenda.” Richard Nixon’s presidency was especially known for concentrating powers in the executive branch, to the point of being called an “imperial presidency.”

2. Judges acting like legislators or prosecutors

“Legislating from the bench” or “judicial activism” has been another common concern, as critics point to instances of judges straying from their constitutional duties of interpreting the law to instead indirectly dictating new law — effectively succumbing to the same temptation as a decree-making president.

This used to be a critique hailing from the political right (from Roe v. Wade’s “abortion rights” to rulings on sexuality, gender and religion). But with the new conservative majority in the Supreme Court, similar concerns have been raised from the political left — who, for instance, point with alarm to the overturning of Roe v. Wade celebrated by many religious conservatives, efforts to remove pandemic-era restrictions on freedom of worship, or constitutional implications of the recent decision on political immunity.

3. Congress overreaching with states while struggling at its distinctive role

Many observers have lamented the struggle in the U.S. Congress to deliberate and effectively govern amidst escalating rancor and hostility. The failure of the legislative branches to advance needed legislation is sometimes highlighted as a reason why judicial and executive branches feel a need to over-step their duties. “If Congress won’t do their job, then we’ll do what we can” the thinking goes.

If Congress could extricate itself from jurisdictions not its own, others argue, maybe they’d have space and time to do what we really need them to do. For example, both political parties have allowed the federal government over time to cross into state jurisdictions through federal funding. Through the allure of “federal dollars,” states have sometimes sold their sovereignty. The irony is that the only funds the federal government has are taken from the states initially.

One example of constitutional drift

The federal government does not have the constitutional authority to delve into education — with each state responsible for managing their education system independently of the federal government. Yet starting with the 1958 National Defense Education Act and Lyndon B. Johnson’s classroom initiatives in his 1960s’s Great Society, to George W. Bush’s “No Child Left Behind” and Barack Obama’s “Race to the Top” — federal money has been available for states who are willing to align with federal priorities.

By many measures, these federal programs did not produce the results that were promised. And simultaneous with less proficiency in math and writing, we have seen the public school system infiltrated with political ideology. Parental and local control were diminished as a one size fits all approach weakened the educational framework of the country.

4. An expansion of unelected bureaucrats exercising growing powers

Mike Lee keeps two stacks of documents in his Senate office — the first is all the legislation passed by Congress in 2013 — 800 pages, measuring a few inches. The second stack is eleven feet tall — eighty thousand pages representing all the regulations proposed and adopted by federal agencies that same year.

Far more than through budgetary strings mentioned earlier, federal overreach happens through the explosive growth of what has been called the “administrative state” — a term that is “fitting” according to Charles Cooper in the National Review , “for it has become a sovereign power unto itself.”

“The U.S. Congress no longer passes most of the federal laws, rules and regulations that are imposed on the American people,” Senator Lee writes — going on to describe how legislators routinely pass legislation that “purports to solve a genuine problem,” while delegating many of the details and specifics to “executive-branch bureaucrats” who wield the “power to make legally binding rules” which will “determine the law’s real world impact.”

A whirlwind history of the administrative state

By specifically outlining what jobs the federal government had the authority to perform (in the “enumerated powers” of Article 1 section 8 ), the Founders helped to limit the power of the federal government. But as more laws were passed, different presidents began seeing a need for more assistance in regulating and administering the existing laws.

Congress created the first modern regulatory agency, the Interstate Commerce Commission (ICC), in 1887 — establishing a variety of agencies to regulate interstate trade, water, power, etc., in the decades that followed.

The Great Depression and the New Deal led to a significant increase in federal agencies such as the Department of Labor, which was given jurisdiction over wages and work hours. After opponents of the New Deal turned to the courts to restrict executive agencies, President Roosevelt threatened to “pack the courts.”

The landmark Administrative Procedure Act of 1946 facilitated the continued growth of executive agencies by codifying steps of publishing notices of proposals and final rule making in the Federal Register (which reached 71,152 pages by August just for the year 2024). In 2024, these federal executive powers are wielded by 92 agencies, according to Ballotpedia .

Imagine for a moment a federal government focused exclusively on delivering mail, preserving currency, facilitating trade, monitoring immigration and defending U.S. soil. That’s hard to even conceive today, since federal government is now involved in nearly every area of the day to day life of citizens — including education, moral issues, energy, and health care. On Jan. 29, 2024, the U.S. Department of Energy finalized its efficiency standards for residential cooking products, including electric and gas cooktops and ovens.

Another major 1984 case establishing the “Chevron doctrine” (encouraging courts to defer to an agency’s interpretation of its statutory authority) was overturned by the Supreme Court this year because, as law professor Brian Gray said , “over time, the more conservative justices concluded that federal agencies had expanded their regulatory powers well beyond those delegated by Congress.”

5. Ceding sovereignty by over-committing to international agreements

In May 2024, The World Health Organization sought to finalize their Pandemic Treaty prior to The World Health Assembly — but were stymied in these efforts partly due to a letter from 24 U.S. governors to the Biden Administration asserting the treaty would give unconstitutional authority to the WHO.

Currently, the United Nations is encouraging the U.S. and other nations to sign onto the “Pact for the Future” — eliciting similar concerns about ceding America’s sovereignty to global organizations.

Other ways the Constitution is being undermined could also be discussed, such as increased hostility in the public square toward religious perspectives and a continued curtailing in overall freedom of speech.

Separated powers as key to protecting our freedoms

One root cause of all of these constitutional violations is the erosion of the separation of powers — with the conglomeration of power of special concern to early American founders. Dual sovereignty was part of the genius of the Constitutional Convention in 1787 — with these newly united states creating the federal government with bounded powers.

History proves that almost without exception, as power accumulates the liberty of a people decreases. That’s why many believe it’s time to stand with tenacious determination for the Constitution — reflecting a growing concern that the next generation won’t enjoy the freedoms we have had if our course isn’t changed.

That change starts with state leaders willing to reclaim state jurisdictions and stop the accumulation of power in Washington DC. But it doesn’t end there — with growing numbers of individuals and families discovering ways to get more educated and involved to make a difference.

Even as the month declared by Utah Gov. Spencer Cox as “Constitution Month” closes, let’s not stop our efforts to educate, defend and advocate for constitutional principles.

Note: Additional acknowledgments of the executive order total by the former administration and concerns about SCOTUS overstepping in its ruling on presidential immunity have also been added.

Jacob Hess is a staff writer and Latter-day Saint Voices editor for the Deseret News. Jen Brown is the mother of five boys and a practicing dentist. She is the president of the Why I Love America organization.