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Defending Congress and the Constitution
The culmination of four decades of research and service on behalf of Congress, Louis Fisher's latest work is a fitting capstone to a remarkable career as scholar and writer and presents his most articulate, passionate, and persuasive defense yet of Congress as an institution.
Our nation's leading authority on the separation of powers, Fisher offers a lucid primer on our nation's government and its executive, legislative, and judicial branches while vigorously advocating a robust reassertion of Congress's rightful role within that system. Drawing on a wide range of legislation, Supreme Court rulings, and presidential decisions, Fisher illuminates the contentious contest among the three major branches for power and control of government, presents a panorama of American history, and touches on issues as wide-ranging as federalism, religious freedom, and national security policy.
Fisher is especially critical of the stereotypical view of the Supreme Court's decisions as possessing a kind of effectiveness and absolute finality that transcends the efforts and powers of Congress. Indeed, he argues that Congress, as much or more than the judiciary, has had a major positive impact on protecting individual rights in this country, while the judiciary has fallen short in such areas as child labor regulation and compulsory flag salute-or has attempted to settle a constitutional issue only to have it fester for years, breeding anger and resentment, until the political process forces the courts rethink their views. He highlights legislative accomplishments in many areas, often in the face of judicial opposition and obstruction, but also chides Congress for not protecting its key prerogatives over the power of the purse and going to war.
In yielding to other branches, Fishers warns, lawmakers fail to represent their constituents and cripple the very system of checks and balances the Framers counted on to limit the destructive capacity of government. His book offers a wealth of forceful insights and provides an important reminder of and guide to how our government should really work.
Our nation's leading authority on the separation of powers, Fisher offers a lucid primer on our nation's government and its executive, legislative, and judicial branches while vigorously advocating a robust reassertion of Congress's rightful role within that system. Drawing on a wide range of legislation, Supreme Court rulings, and presidential decisions, Fisher illuminates the contentious contest among the three major branches for power and control of government, presents a panorama of American history, and touches on issues as wide-ranging as federalism, religious freedom, and national security policy.
Fisher is especially critical of the stereotypical view of the Supreme Court's decisions as possessing a kind of effectiveness and absolute finality that transcends the efforts and powers of Congress. Indeed, he argues that Congress, as much or more than the judiciary, has had a major positive impact on protecting individual rights in this country, while the judiciary has fallen short in such areas as child labor regulation and compulsory flag salute-or has attempted to settle a constitutional issue only to have it fester for years, breeding anger and resentment, until the political process forces the courts rethink their views. He highlights legislative accomplishments in many areas, often in the face of judicial opposition and obstruction, but also chides Congress for not protecting its key prerogatives over the power of the purse and going to war.
In yielding to other branches, Fishers warns, lawmakers fail to represent their constituents and cripple the very system of checks and balances the Framers counted on to limit the destructive capacity of government. His book offers a wealth of forceful insights and provides an important reminder of and guide to how our government should really work.
374 pages, Paperback
First published September 1, 2011
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August 3, 2019
I had no idea who Louis Fisher was when I picked up this book. I think I picked it up out of a sense of numinous awe after touring the Capitol in DC (Which has a fantastic visitor center). I infer from the dearth of GR reviews that this book is not, shall we say, a best-seller. The book jacket provides limited about the author and the book's intent: "Fisher is the master of the institutional interests of the U.S. Congress. His important book, the culmination of a career unmatched in its grasp of that institution's history and constitutional role, should be read by everyone concerned about the performance of American democracy".
I think the book would grab tenfold more readers if it extolled the dozens of times that Fisher has provided expert testimony to Congress, and even more so, presaged in any way the epic public battle that transpired between he and the leadership of the CRS (Congressional Research Service). I first learned about this episode starting on page 287 (!), as I was grinding through Fisher's chapter titled "Analytical Support".
As is typical of the entire book, the chapter had been highly technical, describing the various agencies that have been established to help Congress fulfill its legislative and constitutional duties, by providing expertise and analysis to support the crafting of legislation. The Government Accountability Office (GAO) is an example of such an agency. Fisher describes the origin of each agency in turn, and for each, provides specific examples that show the agency performing its function well and/or poorly.
The section on the CRS proceeds in this manner, as though it was of merely incidental import that Fisher himself spent the bulk of his career in the agency. But it turns out that he published an article in the Political Science Quarterly in December 2003, titled "Deciding on War in Iraq: Institutional Failures". Subsequently this was picked up in a Washington Post op-ed by David Broder, titled "Congress's Cop-out on War". Fisher describes being formally chastised by CRS management, who believed that the CRS was being cast in a bad (ie, biased) light by such writings. (In no sense was Fisher's writing partisan. However, as one comedy wag put it, "the facts were biased against the administration".)
Fisher pushed back forcefully in internal meetings and correspondence, making the essential point that objectivity is not the same thing as neutrality, and that the essence of the value provided by the CRS was analysis that leads to conclusions: conclusions not pre-ordained in the analysis, but conclusions that emerge as a rational outcome of careful, peer-reviewed research. The expert who does such research for Congress has a duty to develop and provide his or her opinion about what position the legislature should take on a given matter. Just because there are two sides to an argument, does not mean that both sides have equal merit.
I conclude it was a conscious decision not to put any mention of this in the cover blurbs, most likely by the author himself out of a sense of scholarly principle and general rectitude: because it takes no marketing genius to recognize that playing up such a public controversy would be a good way to sell more books.
I also think the jacket might have included a remarkable quote by Senator Robert C. Byrd, which nicely sums up the main theme of the book as well as the author himself:
Thus, it gradually dawned on me that the title of the book has two senses: in one sense it is a scholarly dissertation on the proper role of Congress as a co-equal branch of government; in another sense it is Fisher's story of literally defending the institution from general aspersions and from encroachments by the Executive and Judicial branches.
Speaking of the Judiciary: a recurring theme in the book is to highlight examples of bad and poorly-reasoned decisions by the Supreme Court, which "argue against judicial idolatry".
All this being said, my 4-star rating is given in light of the overall level of difficulty of the reading experience, which is rather akin to reading a very long paper in Political Science Quarterly. About a third of the way into the book there was a section on Child Labor (another example of Congress being the bulwark of fundamental justice, and not the SC). I consciously perked up my attention level and really applied myself to the read, convinced that a compelling narrative was at hand. Sadly, I found the section barely comprehensible, and the conclusion indistinct. He quotes a paragraph from a SC decision written by Harlan Fiske Stone. The paragraph affirms the power of Congress to regulate interstate commerce. I checked back through the section but could not find an instance of the name of the case. Consequently, when in the same section he recounts Stone's indictment of a previous decision known as Dagenhart, it's confusing: what was that case even about? One infers that it was one of the previous cases that overturned Congress attempts to regulate child labor. But it's far from clear. To Fisher this is just one of a number of historical instances where Congress, not the Court, has prevailed in a dispute over Constitutional interpretation. He has many examples and limited space to give to any one. I guess as a non-specialist I would more enjoy a smaller number of more vividly developed examples than to have many examples sparsely described in technical language.
I think the book would grab tenfold more readers if it extolled the dozens of times that Fisher has provided expert testimony to Congress, and even more so, presaged in any way the epic public battle that transpired between he and the leadership of the CRS (Congressional Research Service). I first learned about this episode starting on page 287 (!), as I was grinding through Fisher's chapter titled "Analytical Support".
As is typical of the entire book, the chapter had been highly technical, describing the various agencies that have been established to help Congress fulfill its legislative and constitutional duties, by providing expertise and analysis to support the crafting of legislation. The Government Accountability Office (GAO) is an example of such an agency. Fisher describes the origin of each agency in turn, and for each, provides specific examples that show the agency performing its function well and/or poorly.
The section on the CRS proceeds in this manner, as though it was of merely incidental import that Fisher himself spent the bulk of his career in the agency. But it turns out that he published an article in the Political Science Quarterly in December 2003, titled "Deciding on War in Iraq: Institutional Failures". Subsequently this was picked up in a Washington Post op-ed by David Broder, titled "Congress's Cop-out on War". Fisher describes being formally chastised by CRS management, who believed that the CRS was being cast in a bad (ie, biased) light by such writings. (In no sense was Fisher's writing partisan. However, as one comedy wag put it, "the facts were biased against the administration".)
Fisher pushed back forcefully in internal meetings and correspondence, making the essential point that objectivity is not the same thing as neutrality, and that the essence of the value provided by the CRS was analysis that leads to conclusions: conclusions not pre-ordained in the analysis, but conclusions that emerge as a rational outcome of careful, peer-reviewed research. The expert who does such research for Congress has a duty to develop and provide his or her opinion about what position the legislature should take on a given matter. Just because there are two sides to an argument, does not mean that both sides have equal merit.
"Neutrality and objectivity are not the same. Objectivity and the scientific method attempt to analyze evidence for the purpose of understanding what is true. Procedures and attitudes to ensure objectivity are important in this quest for knowledge. Neutrality is too vague and spiritless. Generally it means opposition to taking sides. ... Being nonpartisan is essential for a congressional support agency, but it has nothing to do with neutrality."CRS management didn't see Fisher's work in that way, and in February 2006 the dispute became public with a WSJ article titled "Expert on Congress's Power Claims He Was Muzzled for Faulting Bush".
I conclude it was a conscious decision not to put any mention of this in the cover blurbs, most likely by the author himself out of a sense of scholarly principle and general rectitude: because it takes no marketing genius to recognize that playing up such a public controversy would be a good way to sell more books.
I also think the jacket might have included a remarkable quote by Senator Robert C. Byrd, which nicely sums up the main theme of the book as well as the author himself:
"Lou Fisher is a scholar of integrity and insight. He has assisted me on many occasions. Dr. Fisher understands that the Constitution's Framers purposely placed the People's Branch at the front of this government. The Republic needs people who understand the role of the Congress, who share a determination to protect the people's liberties, and who are unafraid to point out when Congress abdicates that role or when another branch of government tries to steal it away. Quite simply, the Congress needs people like Lou Fisher with the brains and the backbone to help us do our work. I only wish that more people, including some who have sworn to protect and defend the Constitution, shared his passion."
Thus, it gradually dawned on me that the title of the book has two senses: in one sense it is a scholarly dissertation on the proper role of Congress as a co-equal branch of government; in another sense it is Fisher's story of literally defending the institution from general aspersions and from encroachments by the Executive and Judicial branches.
Speaking of the Judiciary: a recurring theme in the book is to highlight examples of bad and poorly-reasoned decisions by the Supreme Court, which "argue against judicial idolatry".
"Few people who read judicial opinions, including those of the Supreme Court, could describe them as invariably skilled, disinterested, or articulate."The examples tend to show Congress as the historically more effective branch when it comes to defending and defining the basic liberties promised by the Constitution.
"Settling something [by SC decision] is successful only when the outcome receives public understanding and support."A classic example Dred Scott: President James Buchanan, speaking at his inaugural, opined that "a particular issue is before the SC, where it will be speedily and finally decided." Fisher notes: "the decision was speedy, but hardly final." Dred Scott is just one of many examples. Fisher quotes Earl Warren, writing about the "wretched" SC decisions in the 1940s that upheld the wartime detention of Japanese-Americans:
"The fact that the Court announces a given program constitutional does not necessarily answer the question of whether, in a broader sense, it actually is."
All this being said, my 4-star rating is given in light of the overall level of difficulty of the reading experience, which is rather akin to reading a very long paper in Political Science Quarterly. About a third of the way into the book there was a section on Child Labor (another example of Congress being the bulwark of fundamental justice, and not the SC). I consciously perked up my attention level and really applied myself to the read, convinced that a compelling narrative was at hand. Sadly, I found the section barely comprehensible, and the conclusion indistinct. He quotes a paragraph from a SC decision written by Harlan Fiske Stone. The paragraph affirms the power of Congress to regulate interstate commerce. I checked back through the section but could not find an instance of the name of the case. Consequently, when in the same section he recounts Stone's indictment of a previous decision known as Dagenhart, it's confusing: what was that case even about? One infers that it was one of the previous cases that overturned Congress attempts to regulate child labor. But it's far from clear. To Fisher this is just one of a number of historical instances where Congress, not the Court, has prevailed in a dispute over Constitutional interpretation. He has many examples and limited space to give to any one. I guess as a non-specialist I would more enjoy a smaller number of more vividly developed examples than to have many examples sparsely described in technical language.
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