America at 250: Restoring the Founders' Constitutional Design
With Americans about to begin their celebration of 250 years since the country’s founding, 2026 is a ripe year to reflect on some of the longer trends in our country’s legal and political life. A recent lengthy meditation by Prof. R.J. Pestritto of Hillsdale College traces the rise of the modern administrative state to a rejection of the American Founders’ constitutional design by Progressives of the late 19th and early 20th centuries. In this useful missive published by the Claremont Institute’s Center for the American Way of Life, Pestritto further details recent efforts to turn the tide against what was once considered a one-way-ratchet toward what he calls “government by the unelected.”
What’s notable is that while neither NCLA nor any public interest litigation firm is mentioned in Pestritto’s Government by the Unelected: How it Happened, and How It Might Be Tamed, these recent efforts to turn the tide against “government by the unelected” would be inconceivable were it not for the yeoman’s work of public interest shops tirelessly committed to restoring the Founders’ constitutional design. In the last ten to fifteen years, these firms have reshaped the legal landscape and made possible the notable “wins” that Pestritto recounts. A brief survey of Pestritto’s notable decisions from the Supreme Court from this period includes: Free Enterprise Fund v. PCAOB (2010), Lucia v. SEC (2018), Seila Law v. CFPB (2020), Corner Post v. Federal Reserve (2024), SEC v. Jarkesy (2024), and most notably Relentless/Loper Bright (2024). All these major victories were either delivered by public interest firms representing courageous clients or were the product of public interest firms’ tireless efforts to power amicus support of these cases through the lower courts up to the Supreme Court.
Pestritto, however, cautions against triumphalism. His primary concern is that these victories, while welcome and important, largely provide the necessary conditions for the full restoration of the Founders’ constitutional design. Congress must fulfill its role in delivering sufficient legislation to meet our constitutional moment. For example, in light of Loper Bright/Relentless, Congress is back in the driver’s seat to craft legislation that no longer rewards administrative agencies through the drafting of ambiguous statutes. Courts abiding by Loper Bright/Relentless are now required to discern the best ultimate meaning of a statute, without deference to an agency’s own interpretation.
Pestritto is pessimistic though that Congress will take up this mantle through “its own legislative program of restoring popular government.” He predicts that we will continue this fight to restore popular government with a Congress uninterested in these battles, and instead between an elected president and unelected bureaucrats in courts presided over by unelected judges. While recent history would suggest as much, emerging trends on the political Left and Right toward reform of the Senate’s filibuster present at least the possibility that past congressional inaction does not suggest indefinite inaction going forward. Nevertheless, if Pestritto is correct in his pessimism, it only underscores the importance of public interest firms such as NCLA to continue shaping the arguments that animate a restoration of the Founders’ constitutional design.
