About a week ago my friend Michael Gaddy posed a rhetorical question on Facebook to those on his friends list, “If forced to choose between political party loyalty and the Constitution, which would you choose?” He then followed his question with, “HINT: You do it every election.” By the choices people make when they go to vote, and by the things I hear many of them say, I can only come to one of two conclusions; either people don’t know what the Constitution says, or they don’t care what it says.
I would hope that we could at least all agree that the Constitution is the document that established our government; although that is probably the extent of how much else we can agree upon. I find it absolutely incredible that people can honestly believe they are making informed choices at the voting booth when they don’t know the first thing about the specific details found within the Constitution itself. To me, that’s like choosing players for a football team, then letting them play without any of them adhering to the rule book…and not caring about it!
If government could be likened to a football game, then the two opposing teams would then be the Republicans and the Democrats, and we would be the referees. If the referees on the gridiron do not know the rules, how can they be expected to penalize the players for violating them? The same goes for our government, if we do not know how it was supposed to function, the specific powers given it, and even more specifically, the specific powers given each branch, then how are we supposed to know when it is violating the rules?
I suppose any discussion of the Constitution should first begin with a short talk regarding what a constitution actually is. A constitution is a written agreement between a body of men that outlines a form of government. It dictates the shape it shall take, the various functions each branch shall take, as well as any limitations imposed upon them. It may also describe the relationship, or the spheres of power held by those who will form this system of government and those retained by the actual creators of the form of government it is creating. Finally, as is the case with our Constitution, it may also provide a means of rectifying, or correcting any faults found within the document itself; i.e. a process by which it can be amended.
Now that I’ve taken care of explaining what a constitution is, let discuss a few critical facts. The first is that a constitution is similar to a contract in that it is merely words on a piece of paper until the contracting parties agree to it. In a legal contract this is done by the parties signing the contract, and in the case of our constitution it was done by the States holding ratifying assemblies where they discussed, or argued if you will, the merits and the faults of the constitution, and then deciding whether to accept it, or reject it. Prior to the States ratifying the constitution it was merely a proposal with no force behind it; the force came into being when the parties who hold the true political power agreed to accept the terms found within the constitution and submit to the government it established. I will talk more about submission in a few minutes, for the time being it is enough to know that this submission was not to unlimited power, only that which was specifically granted.
The next point, although not discussing the constitution itself, is of just as much importance as what the document actually says; that being that it was written on behalf of the sovereign and independent States that formed the Confederacy. First of all you have to remember that the United States already had a system of government when the constitution was being written. The existing system of government also had its own constitution; The Articles of Confederation.
I don’t want to spend too much time discussing the Articles of Confederation, so let me just provide you with two quotes taken from that document. The first is found in Article II, where it states, “Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.”
The next is found in Article V, where it states, “For the most convenient management of the general interests of the United States, delegates shall be annually appointed in such manner as the legislatures of each State shall direct, to meet in Congress on the first Monday in November, in every year, with a power reserved to each State to recall its delegates, or any of them, at any time within the year, and to send others in their stead for the remainder of the year.” (emphasis added)
Now if you’ll put on your thinking caps for a moment, let’s begin by discussing what Article II says. It first explains something a great many people today don’t seem to realize, that the States were sovereign and independent entities; much like any nation in Europe, South America or Africa are sovereign and independent. This is important, so keep it in the back of your heads.
Next it goes on to say that the States retained every power which was not expressly granted by the Articles of Confederation to the Congress. By inserting the word expressly into Article II they left no room for interpretation, or construction as our Founders would have called it. If the Articles of Confederation did not specifically say that Congress could do something, then it could not do it. Some would argue that this was a blessing, while others might argue that it was a curse. It both restrained the Congress from overstepping its authority, but it also hindered them in the performance of the specific tasks they were established to perform.
Finally, and this takes a bit of discernment on your part, there is subtle distinction made between the sovereign States and the United States itself. This subtle hint is made apparent if you’ll read the final words of Article II, “… which is not by this Confederation expressly delegated to the United States, in Congress assembled.” The United States was the title given the Confederation, but it only existed as an entity through the body of Congress; it was not a national identity, and it was not the citizenship status that people claimed.
Now let’s take a moment to discuss Article V. Article V discusses the means by which the members of Congress shall be chosen. If you’ll notice they were not elected by the people, they were chosen by the State Legislatures. This was done because the members of Congress did not directly represent the people, they represented the States. The people already had a government that represented them; their State Legislatures. The government established by the Articles of Confederation was to act as the representatives of the States, not the people. This is one of the features of a Confederation; the central government has the delegated authority to enact laws that affected not the people, but the States as sovereign entities.
Under the Articles of Confederation the United States had a purely federal form of government. The question then arises, what form of government did the Constitution establish; a federal or a national one?
This is the question that many of those who opposed the ratification of the Constitution had on their minds. Take for instance Patrick Henry’s speech of June 5, 1788 where he said, “I rose yesterday to ask a question which arose in my own mind. When I asked that question, I thought the meaning of my interrogation was obvious: The fate of this question and of America may depend on this: Have they said, we, the States? Have they made a proposal of a compact between states? If they had, this would be a confederation: It is otherwise most clearly a consolidated government. The question turns, Sir, on that poor little thing-the expression, We, the people, instead of the States, of America.”
In a confederation, or federal form of government, the States retain not only their powers, but their identity as sovereign entities. However, in a national form of government the independent entities, or States in this case, are consolidated into a single entity; the United States. This fact is given little discussion in modern politics today; as the terms national and federal are used interchangeably to describe our system of government; but in 1787 the two words described radically different things.
Now that I’ve gotten that out of the way, let’s begin discussing the Constitution itself. However, as this is just a basic discussion of the document. If you want to thoroughly understand it’s intricacies you are going to have to take the time to study it with the same degree of attention that I have.
The purpose for which governments are established is so that laws may be passed which benefit those the government represents. After all, why would they go about creating a system of government if it had no authority to enact laws? Therefore it makes sense that the branch of government bestowed with the lawmaking, or legislative authority, be the first branch which was outlined in the Constitution.
If you ignore the Preamble, the very first words of the Constitution state, “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” It does not say some legislative authority, but ALL LEGISLATIVE authority shall be vested, (meaning that they belong to or are given to), the Congress. These powers do not belong to the President, nor do they belong to the Supreme Court, they are the sole jurisdiction of Congress. So why people vote for presidential candidates based upon their campaign promises is beyond me; as the President has no authority to fulfill those promises.
Unlike the Congress established by the Articles of Confederation, the Congress established by the Constitution is bicameral; that is it consists of two bodies; the Senate and the House of Representatives. On the one hand this conforms to a federal form of government; as the Senate represented the States. But on the other hand it conforms to a national form of government as the House directly represents the people.
The balance between the two forms of government is in the fact that no bill can become law until both Houses of Congress have agreed to it. This ensured that the representatives of the people could not enact laws which threatened the rights and sovereignty of the States, and vice versa. However, that balance was forever obliterated with the ratification of the 17th Amendment; making the election of Senators accomplished by a popular vote of the people. The States were henceforth and forever shut out of deciding what laws the central government enacts. That is of course unless the 17th Amendment is repealed; but with the Constitutional limitations upon government being of little concern, and only partisan loyalty being the determining factor in who gets elected, I don’t think even that would make much difference.
Article 1 then goes on to describe how the members of Congress shall be chosen, the qualifications they must hold, how they will manage their affairs, and the distribution of representation, among other things. Then we get to the meat and potatoes of Article 1…Section 8 wherein the specific powers to enact laws upon are described.
I’ll bet most people are not aware that the Constitution only grants Congress the authority to enact laws which touch upon 16 specific areas. Section 8 of Article 1 begins by giving Congress the power to lay and collect taxes; which was one of the deficiencies it had under the Articles of Confederation. However, the power to lay and collect taxes is not a specific area where the jurisdiction of Congress extends; at least not directly. The power to lay and collect taxes is the means by which our government can fund its operations; but that funding MUST be in accordance to the specific powers which follow.
In 1791, when Thomas Jefferson argued against the constitutionality of a national bank, he explained the power of taxation thusly, “To lay taxes to provide for the general welfare of the United States, that is to say, ‘to lay taxes for the purpose of providing for the general welfare.’ For the laying of taxes is the power, and the general welfare the purpose for which the power is to be exercised. They are not to lay taxes ad libitum for any purpose they please; but only to pay the debts or provide for the welfare of the Union.”
Next up are the specific areas which Congress has the authority to legislate upon. Among those powers is the power to coin money and regulate its value, to establish a uniform rule of naturalization, and to declare war. If you have the time, I suggest you find a copy of the Constitution and peruse Article 1, Section 8 to read the entire list of powers given Congress. You might be surprised to see that 99.9% of what our government currently does is not found to be authorized by the specific powers given it; and I’ll get to how that came about in a few minutes.
The final clause of Article 1, Section 8 is the tool by which many of the violations of the Constitution have been perpetrated; the Necessary and Proper Clause. I don’t know if you’ve ever taken the time to read all of the amendments which have been made to the Constitution, but beginning with the 13th Amendment many of them end with, “Congress shall have power to enforce this article by appropriate legislation.” This is similar to the Necessary and Proper Clause in that it gives government the leeway to perform the specific tasks it is authorized to enact.
One of the arguments during the convention which produced the Constitution was over whether or not to include the word expressly in regards to the powers given Congress. Many felt that the inclusion of the word expressly was one of the faults of the Articles of Confederation; as if a power was not expressly granted to Congress then they could not perform that task. So, if Congress enacted a tax; which was within their authority, they could not compel the States to pay; because that was not expressly granted. On the other hand, many of those who opposed the ratification of the Constitution felt that by including a Necessary and Proper Clause it opened the doorway, or created a loophole by which all manner of mischief might be committed.
To put it simply, the Necessary and Proper Clause was included so that Congress, or the Executive, would have the ability to enforce the laws that our government passed. But these laws had to be in pursuance of the specific powers granted it. But I’m getting ahead of myself; as that is found in Article 6.
If a person gives another under his control the specific order to build him a couch, but does not give them the ability to purchase wood, nails, or fabric, what good is the order to build a couch? It is therefore implied that the order to build a couch is connected to the authority to purchase the required materials to perform that task. That is the sole purpose of the Necessary and Proper Clause; it is not a blank check, so to speak, giving Congress unlimited authority to enact whatever laws they deem necessary and proper any more than the General Welfare Clause is a blank check to do whatever is in the best interests of the country regardless of the limitations imposed upon government.
This was affirmed by James Madison when he argued against the passage of a bill which would have granted bounties, or subsidies, to Cod Fisheries during the second Congress in 1792, “If Congress can employ money indefinitely to the general welfare, and are the sole and supreme judges of the general welfare, they may take the care of religion into their own hands; they may appoint teachers in every State, county and parish and pay them out of their public treasury; they may take into their own hands the education of children, establishing in like manner schools throughout the Union; they may assume the provision of the poor; they may undertake the regulation of all roads other than post-roads; in short, everything, from the highest object of state legislation down to the most minute object of police, would be thrown under the power of Congress… Were the power of Congress to be established in the latitude contended for, it would subvert the very foundations, and transmute the very nature of the limited Government established by the people of America.” (emphasis added)
The next Article of the Constitution established, for the first time, an executive branch; a person whose job is to act as the representative of the United States when dealing with other foreign nations, and to ensure that the laws passed by our government are faithfully executed. If Congress is the legislative body, then the office of president is the executing body; hence the title Executive. It is not within his power to sidestep the legislative authority of Congress with Executive Orders or Presidential signing statements; it is his job to either approve of the laws that Congress sends to him, or veto them with his reasons why. But once a law goes into effect, it is his sworn duty to ensure that it is upheld.
This is what the Founders described as a separation of powers; the Congress has certain powers that it is authorized to exercise, and the president has others. For our system to operate as designed it is crucial that no branch overstep their authority and exercise the powers given another.
A perfect example of how this separation of powers has not been maintained is in how our presidents have sent our military off to fight when there has been no formal declaration of war by Congress. Not since World War II has Congress issued such a declaration; yet how many wars, or conflicts has the U.S been involved in since then? Korea, Vietnam, Kosovo, the first and second Gulf Wars all have been undertaken without a formal declaration of war by Congress.
The more I learn about George Washington, the more my respect for him diminishes. For one thing he listened to closely to that snake in the grass Alexander Hamilton. Yet for all that he still said some things which are worthy of note. One of those comes from a letter he wrote to William Moultrie on August 28, 1793, “The constitution vests the power of declaring war in Congress; therefore no offensive expedition of importance can be undertaken until after they shall have deliberated upon the subject and authorized such a measure.” Yet that has not stopped presidents from sending our servicemen and women off to die in unconstitutional wars.
Since 1973 most of the wars our presidents have involved us in have been due to the Congress passing the War Powers Act of 1973 which gave the president the authority to commit U.S. forces to conflict without first obtaining a formal declaration of war.
That was clearly unconstitutional on the part of Congress; not to mention that it violates the legal concept of delegatus non potest delegare, which means “one to whom power is delegated cannot himself further delegate that power.” If Congress obtains its power by the delegated authority given it by the Constitution, it cannot legally hand that power over to another branch of the government without first proposing an amendment to the Constitution and having it ratified by the States.
It was believed that these separations of power be maintained if our government was to serve the purposes for which it was established. James Madison said as much in his Memorial and Remonstrance Against Religious Assessments, “The preservation of a free government requires, not merely that the metes and bounds which separate each department of power be invariably maintained, but more especially that neither of them be suffered to overleap the great barrier which defends the rights of the people.”
The president may enter into treaties with other nations, with the advice and consent of the Senate, but he cannot enter into any treaty which requires that the people of this country surrender any of their rights, or that the States surrender any of their sovereignty. Every treaty the President negotiates must be in accordance with the Constitution. Therefore, if the Constitution does not authorize the central government to commit U.S. military to the defense of other nations; such as it has to Taiwan then the President cannot lawfully enter into that treaty without violating his oath of office to support and defend the Constitution.
Then there is the fact that we have had presidents since 1983, when President Reagan signed into law the Simpson/Mazzoli Act who have refused to enforce the immigration laws it established. Not that I’m supporting Trump, but now that he is in office and is attempting to enforce some of the statutes, he is encountering resistance and opposition; particularly from the judiciary; which is the next area of discussion.
To sum up so far, our Congress makes the laws, and it is the job of the president to ensure that they are faithfully executed. The president cannot pick and choose which laws he chooses to enforce. If a president feels a law is unconstitutional he can recommend to Congress that it be repealed, but as long as that law remains in effect it is his job to enforce it.
Article 3 of the Constitution establishes the Judicial Branch of our government. The purpose of the Judicial Branch is to apply the Constitution in all questions between parties where the Supreme Court has jurisdiction. However that distinction has been forgotten since John Marshall issued his ruling in the case of Marbury v Madison; forever establishing the principle of judicial review; or as I like to call it, legislating from the bench.
Judicial review is the principle where a court not only applies the law, it decides what the law means and determines for itself whether or not a law is constitutional. Judicial review can best be explained by something Justice Charles Evans Hughes said, “We are under a Constitution, but the Constitution is what the judges say it is.”
Of all the branches of government, the Judiciary is the one Thomas Jefferson feared the most. In an 1820 letter to Thomas Ritchie, Jefferson said this about them, “The judiciary of the United States is the subtle corps of sappers and miners constantly working under ground to undermine the foundations of our confederated fabric. They are construing our constitution from a co-ordination of a general and special government to a general and supreme one alone.”
People take the rulings of the Supreme Court to be as set in stone as the Ten Commandments, but they are, especially of late, simply the attempts by the Court to justify the expansion of governmental power and authority beyond the specific powers granted it by the Constitution. If the federal government cannot enact a law upon a specific issue, how can the Supreme Court, which is part of the federal government, rule upon a case that involves that same issue?
Take Roe v Wade and the question of whether or not a woman might obtain an abortion. The authority to enact laws on this particular issue is not given Congress; therefore how could the SCOTUS rule that it was a woman’s right without overstepping the boundary which separated State authority from federal authority? Not to mention that, but then there is the fear that a right leaning SCOTUS might overturn Roe v. Wade. How could that even be possible if the SCOTUS was strictly adhering to the Constitution, instead of interpreting it according to the political ideologies of the individual Justices?
I won’t go too deeply into Article 4 of the Constitution other than to say that it primarily deals with how the States treat each other and the process by which new States shall be admitted to the Union.
Article 5, on the other hand, is one which provides the people with the means to expand, or place further limitations upon, the powers held by our government. It is through the process outlined in Article 5 that our Bill of Rights came into existence, and it is the only lawful way by which the powers of our government can be expanded beyond those specifically listed in Article 1, Section 8.
In his Farewell Address to the people, President George Washington spoke of the process of amending the Constitution when he said, “If in the opinion of the People, the distribution or modification of the Constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed.”
Article 6 of the Constitution is commonly known as the article which places the federal government above all others; making it supreme. That is only true when the laws it enacts are in pursuance of the specific powers granted it by the Constitution. The text of Article 6, Clause 2 states, “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby…” (emphasis added)
Only those laws that are passed in pursuance of the specified powers are to be considered the supreme law of the land. What does that mean for all those laws that are not in pursuance of the specified powers? Well, to put it simply the States, if they cared one whit about their sovereignty would simply ignore them; considering them to be null and void from the get go and therefore non-binding upon them.
That leads us directly into Article 6, Clause 3, where it states, “The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution…”
This was one of the reasons why it was so imperative that the States retain their sovereign identities and not bind themselves to the federal government by becoming pawns of the same political party’s which control government at the federal level. If the members of the federal government chose to ignore their oaths of office to support and defend the Constitution there was always the States to act as a final check upon usurpation and tyranny by simply nullifying these laws by non-compliance.
But that has not happened either. It seems that very few of the provisions found within the Constitution are currently being upheld.
Finally, Article 7 is, for all intents and purpose, of no relevance, as it only outlines the means by which the Constitution should be ratified. It has already been ratified; therefore Article 7 does not come into play in post-ratification America.
Well, there you have it, a very basic outline of what the Constitution says. Had I gone into any greater detail this would have been hundreds of pages long.
Yet there is one final point I want to make. In 1866, immediately following the end of the Civil War, the Supreme Court heard the case of Ex parte Milligan. When they handed down their decision, the Court held the following, “The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of men than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism.” (emphasis added)
Although you have not taken an oath to support and defend the Constitution, such as your elected representatives and those serving in the military have, know that you are also bound by the limits the Constitution imposes upon our government. If you choose to vote for candidates whose campaign promises are blatantly in violation of what the Constitution authorizes government to do, then you are as equally to blame as those who actually enact the laws. It is your DUTY to choose only those candidates who will limit their actions to the specific powers granted government, and refraining from overstepping the boundaries which separate their powers from those of the other branches.
I hope that this has given you some insight to what was intended when the States agreed to adopt the system of government the Constitution outlines; and how it has morphed into something entirely different. You can choose to continue supporting it by voting for whomever you believe has the best vision for America’s future; but know this, you are not voting for a government that has any resemblance to the one originally established in 1789.