On the Purpose of the Constitution and Structure of the Federal Government

First, a few points on the article you posted. (http://www.theatlantic.com/magazine/archive/2015/10/our-fragile-constitution/403237/).

1. The author’s history may be accurate, but again I must say that it is that it is largely irrelevant—in that there is no stated connection between his history and the enactment of the Constitution. The best history of the Constitution is contained in the Federalist which was written to persuade the states to ratify the new Constitution.

2. The author writes that “the U.S. Constitution was modeled on a system that collapsed into civil war, and that it is inherently fragile.” The truth is that the Constitution wasn’t modeled on any system at all. As Notre Dame Law Professor Charles Rice wrote “The Constitution . . . is the first instance in all history of the creation of a government possessing only limited powers.” [1]

3. The article states in part: “At its head stood a king—an uncrowned one called a president—with sweeping powers, whose steadying hand would hopefully check the factionalism of the Congress.” As we will see below, the President doesn’t have “sweeping powers.” To the contrary, his powers, though important, are very limited.

4. The author characterizes the government as a “presidential democracy.” But it is neither presidential nor a democracy. The Constitution itself was the product of the states. Constitutional amendments require the affirmative of ¾ + 1 of the states. The president is elected by states. Each state, large or small, has two senators regardless of population. That’s also an anti-democratic provision. Each state shall have at least one representative.[2] Each state shall choose a specified number of representatives.[3] Each state shall elect representatives in the manner prescribed by its legislature.[4] The representation of each state shall have one vote in choosing a president.”[5] And when there is an electoral tie, the election goes to the House of Representatives where each state has one vote—again a non-democratic measure.

Mr. Madison, the Father of the Constitution, has this to say about democracy: “Had every Athenian citizen been a Socrates, every Athenian assembly would still have been a mob.”[6]

And Mr. Jefferson on the same: “The mobs of great cities add just so much to the support of pure government, as sores do to the strength of the human body. It is the manners and spirit of a people which preserve a republic in vigor. A degeneracy in these is a canker which soon eats to the heart of its laws and Constitution.”[7]

And his solution was a Constitution to “[B]ind [politicians] down from mischief by the chains of the Constitution.”[8]

“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.”―James Madison [9]

The preeminence of congress was not accidental. As Mr. Madison explained in Federalist № 48, “The legislative department derives a superiority in our government . . . . Its constitutional powers [are] more extensive, and less susceptible of precise limits . . . . On the other side, the executive power [is] restrained within a narrower compass . . . .” [10]

Next is a discussion first on federal legislative power much of which is drawn from my treatise on the Constitution.

Section 3: Federal Legislative Power: ‘Shall Extend to Certain Enumerated Cases’

“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.”—Mr. Madison, Federalist № 45.[11]

“The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written.” Chief Justice John Marshall in Marbury v. Madison (1803).[12]


Powers of congress

Key words and their derivatives in bold

  1. Impose taxes.
  2. Borrow money.
  3. Regulate commerce.
  4. Enact uniform naturalization and bankruptcy rules.
  5. Coin money; set value thereof and of weights and measures.
  6. Make rules for punishment of counterfeiting.
  7. Establish post offices and roads.
  8. Issue copyrights and patents.
  9. Establish lower courts.
  10. Define and set punishment for piracies, crimes at sea, and offenses against law of nations.
  11. Declare war, grant letters of marque and reprisal, and make rules on captures.
  12. Raise and support armies.
  13. Provide a navy.
  14. Make rules for army and navy.
  15. Call militia.
  16. Make rules for militia.
  17. Make rules for federal properties.
  18. Make necessary and proper laws to carry out its powers.
  19. Approve or reject treaties
  20. Take census.
  21. Set punishment for treason.
  22. Prescribe manner of proving laws or judgments of one state in another (full faith and credit laws).
  23. Make rules for admitting new states.
  24. Make rules for territories.
  25. Propose constitutional amendments.
  26. Make rules for prohibiting servitude.
  27. Make rules for enforcing citizenship, privileges and immunities, due process, and equal protection guarantees.
  28. Make rules for enforcing guarantees that the right to vote shall not be abridged for race, sex, or age; and that no poll tax be imposed.
  • 4:4. Summary of presidential powers
  1. Legislation veto
  2. Commander-in-chief
  3. Requesting opinions
  4. Giving reprieves and pardons
  5. Negotiating treaties
  6. Appoint ambassadors, consuls, and public ministers
  7. Other nominations and appointments
  8. State of the Union
  9. Convening and adjourning congress
  10. Faithful execution of laws

Although the above enumeration grants the president very substantial powers and influence within the legitimate operations of the federal government, the president’s enumerated powers seem to add little, if anything, to the external reach of overall federal jurisdiction. Beyond providing a means for implementation of legitimate congressional power, i.e., found especially in the commander-in-chief clause and in the “faithful execution” clause requiring the president to “take care that the Laws be faithfully executed”, the executive powers seem a bit underwhelming in our modern age—an era where the president is commonly regarded here not only as the leader of the Union, but even of the free world. However, the unadulterated constitutional text shows he is rather more an agent than a principal, more a steward than a captain, more a follower than a leader.

Even the royalist Hamilton purported to agree with that assessment. In Federalist № 72 he said the president’s role is the “administration of government . . . [which] in its most usual and perhaps in its most precise signification . . . is limited to executive details, and falls peculiarly within the province of the executive department.”[13] He went on in Federalist № 75 to try to capture the reach of executive power: “[T]he execution of the laws and the employment of the common strength . . . for the common defense, seem to comprise all the functions of the executive magistrate.”[14]

We need not spend a whole lot of time on the scope of the stated executive jurisdiction, for aside from the president’s major legislative role in the congressional legislative and treaty-making processes, and his nominating power, his power is merely ministerial and only derivative of congress’s powers described in Section 3. And in fulfilling those ministerial functions, the president is bound by the same limited subject matter strictures and constitutional restraints that bind congress. As John Jay wrote in Federalist № 64, “All constitutional acts of power, whether in the executive or in the judicial departments, have as much legal validity and obligation as if they proceeded from the Legislature . . . .”[15] In short, the president is limited to carrying out the “executive details” of legislation within those strictures.

In saying so, we do not in the slightest slight the importance of the president in the constitutional design. Indeed, as we said, the president is the most important force in the legislative process, because the president’s veto power gives him in effect the power to cancel the vote of up to 67 of the 100 senators, and up to 358 of the 535 house members.

But the president’s veto power in no way expands overall federal jurisdiction—for the legislation he can lawfully sign and implement cannot deal with subjects beyond the federal legislative subjects outlined in Section 3.

Nor do we mean to understate the importance of the president’s nomination power, particularly that of nominating supreme court and other federal judges. That power is perhaps the most important the president may have—especially given the politicization of the Constitution by our federal judges. Though congress must confirm the president’s judicial nominees before they take office,[16] in a stand-off, the president probably has the upper hand, for he can always keep sending philosophical soulmates until congress tires of rejecting them. The power of nomination has usually been (with the notable exception of the Robert Bork case) the equivalent of confirmation; most legislators used to believe that the president usually should have his way.

But remarkably, even with his most important executive powers, the president’s jurisdiction is at least partially-derivative of legislative jurisdiction. As we have seen, his power as commander-in-chief of the armed forces is derivative, because congress (again along with the president’s approval or vetoproof disapproval) must first have created those forces through legislation.[17] Moreover, as we have also seen congress has ultimate control over the armed forces even after they are established. Article 1, §8, Cl. 14, allows congress to “make rules for the government and regulation of the land and navel forces.” Perhaps the relationship between congress and the president in regard to his commander-in-chief power could be likened to that between a board of directors and the chief operating officer of a corporation.

For similar reasons, the president’s law-executing or law-enforcing powers also are derivative, because the laws he is to enforce are the creation of congress. If congress hasn’t first created the laws, there is nothing for him to do, except for receiving ambassadors and obtaining cabinet opinions.

The preeminence of congress was not accidental. As Mr. Madison explained in Federalist № 48, “The legislative department derives a superiority in our government . . . . Its constitutional powers [are] more extensive, and less susceptible of precise limits . . . . On the other side, the executive power [is] restrained within a narrower compass . . . .” [18]

Apart, then, from his role in the legislative and treaty-making processes, and his nominating power, the president’s role could rightly be described as the majordomo of the federal household. He is to carry out the laws, but not make them. He is to nominate judges, but not become one himself. He is to carry on the war effort, but not instigate it.

Despite the Constitution’s manifestly “narrow compass” for presidential activity, there are those, including the United States Supreme Court, who have “discovered” far greater powers vested in the office including the powers to declare and wage war without the imprimatur of congress, to make laws rather than merely carrying them out, to act in various judicial capacities, to make treaties as opposed to proposing treaties, and otherwise to exercise plenary power in foreign affairs.

As we will see ahead, just as the New Deal Supreme Court handed congress a blank check to legislate and spend for purposes not authorized by the Constitution, so the same court awarded the president illegitimate and vast war, foreign relations, legislative, and judicial power—powers well outside the constitutional azimuths indicated on his “narrow compass” of power. The result has been a disaster for constitutional government, because, as we shall see, the court’s ultra vires[19] expansion of executive power has begotten a massive proliferation of presidentially-made laws, an “administrative law state” in which presidential delegates act as prosecutors, judges, and juries, a complex web of foreign entanglements, and a spate of unconstitutional wars.

[1] The Bill of Rights, Original Meaning and Current Understanding, Hickok, Eugene W. Jr., Ed., University Press of Virginia, Charlottesville and London (1991), p.11.

[2] U.S. Const., Art. 1, §2, Cl. 3.

[3] U.S. Const., Art. 1, §2, Cl. 3.

[4] U.S. Const., Art. 1, §4, Cl. 1.

[5] U.S. Const., Art. 2, §1, Cl. 3.

[6] Federalist № 55 @ http://www.constitution.org/fed/federa55.htm.

[7] Notes on Virginia, query 19, reprinted in The Writings of Thomas Jefferson, ed. Andrew A. Lipscomb, Vol. 2, p. 230 (1903) @ AFL. [Suzanne stop]

[8] Kentucky Resolutions, Bergh 17:388 (1798) @ http://www.constitution.org/rf/kr_1798.htm.

[9] Federalist № 45 @ http://www.constitution.org/fed/federa84.htm.

[10] Federalist № 48 @ http://www.constitution.org/fed/federa48.htm.

[11] From http://www.constitution.org/fed/federa45.htm.

[12] 5 U.S. (I Cranch) 137, 176 (1803) @ http://laws.findlaw.com/us/5/137.html.

[13] Federalist № 72 @ http://www.constitution.org/fed/federa72.htm.

[14] Federalist № 75 @ http://www.constitution.org/fed/federa75.htm.

[15] Federalist № 64 @ http://www.constitution.org/fed/federa64.htm.

[16] Except in the case of “recess appointments”.

[17] U.S. Const., Article 1, §8, Cl. 12.

[18] Federalist № 48 @ http://www.constitution.org/fed/federa48.htm.

[19] Ultra vires = beyond the powers. http://en.wikipedia.org/wiki/Ultra_vires


Published in: on September 15, 2015 at 6:33 pm  Leave a Comment  

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