MayerBlog: The Web Log of
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The Authority of the Constitution
September 17 marks Constitution Day, the anniversary of the date (September 17, 1787) that the Constitutional Convention in Philadelphia completed its task of drafting a new Constitution for the United States. It’s an anniversary worth celebrating, not because Congress a few years ago tried to force colleges and universities across the USA to do so (see my previous essay, “The Unconstitutional Constitution Day Mandate,” Sept. 15, 2005) – but because of the importance of the Constitution in its own right. In my Constitution Day essay last year, I noted, “Of course, all Americans ought to be familiar with the U.S. Constitution; it is the document that not only creates our national government but legitimizes it, by memorializing those powers that the people of the United States have authorized the national government to exercise – and by limiting the exercise of those powers (as well as the powers of the state governments), to protect individual rights.”
But as I also observed, “Sadly, familiarity with the Constitution is sorely lacking in the United States today: both our government officials and the people generally are abysmally ignorant of the Constitution. Not only have we become unfamiliar with its provisions but we’ve also lost sight of its essential purpose – to limit the power of government. One result is that the Framers’ amazing achievement has become, arguably, a failure – for American government, especially at the national level, is far too big, far too intrusive into people’s lives, exercising powers that the Framers never expected the government to wield (and which the text of the Constitution was meant to preclude). Washington, Madison, Franklin, Jefferson, Adams – even Hamilton (with his `big government’ views) – all would be appalled.”
(“Respecting the Constitution (Reprise),” Sept. 13, 2007). The basic problem is that so few Americans today truly respect the Constitution and the limits it imposes on the powers of government, both federal and state governments. As I wrote in last year’s essay, virtually all the persons who hold federal offices today – President George W. Bush, Vice President Dick Cheney, the heads and members of the various executive departments and federal administrative agencies, the vast majority of the members of Congress, and even most federal judges (including a majority of the justices of the U.S. Supreme Court), all of whom have taken an oath to support and defend the Constitution of the United States – fail genuinely to respect the limits that the Constitution places on government powers and the safeguards it provides for the rights of individuals. In this election year, it’s also important to note that virtually all the candidates for office, from either of the major political parties (the “Demopublican” and “Replicrat” parties, as I call them), also fail to respect the Constitution. In fact, of the candidates for President of the United States this year, I know of only one (Bob Barr, the presidential candidate of the Libertarian Party) who really does understand and respect the Constitution and the limits it imposes on power. All the other candidates for federal office (including both Senators Obama and McCain, as well as the Congressional candidates, whether Republican or Democrat, incumbent or challenger) are ignoring this vital issue of respect for the Constitution – arguably, the most important issue in the federal elections because respect for the Constitution ought to be the chief qualification for holding federal office. Why do the politicians care so little about the Constitution? The answer, ultimately and regrettably, is that they don’t care because their constituents – the American people, including both those who vote and those who don’t vote – similarly don’t care. Americans generally are both apathetic and ignorant: they don’t care about the Constitution because they don’t care about government powers eroding our freedoms, because they (for the most part) don’t care about their freedom. As I’ve previously discussed in several past blog essays, a century (or more) of “Big Government,” regulatory/”welfare state” (or “nanny state”) government programs have turned Americans into a “nation of sheep,” of people who no longer value their individual freedom as their highest political ideal. Rather, they’ve become dependent on a government that they expect to provide “security,” or protection, for them – not just defending the nation from physical attack from foreign enemies outside the country, or even defending individuals from violations of their rights by criminals within the country, but in providing a “safety net” of material “entitlements” (food stamps and other welfare payments, unemployment insurance, Social Security and Medicare, Medicaid, disaster relief, etc.), to protect people from their own folly, from the consequences of their own bad choices or irresponsibility. Even among those Americans who do care about the erosion of their freedoms, there’s a huge problem of ignorance: the average American is sorely lacking in his or her knowledge of civics and American history, including the Constitution of the United States and the history of its adoption and interpretation. To help educate Americans about fundamental facts concerning the Constitution – facts that are not well understood, even by supposed experts (including many college and law school professors who teach constitutional law) – I included in my “Respecting the Constitution” essay a section I called “The Constitution 101: A Short Primer,” which explained the following eight fundamental principles of the Constitution:
This year I’m adding two other fundamental principles to my “Primer.” The first is especially relevant in this presidential election year, when most of the “issues” that the candidates, their campaigns, and the news media talk about are matters not legitimately related to the constitutional authority of the President. The second principle is one I hadn’t included before because it seemed obvious (or implicit in the very idea of a constitution itself), but which I need to explain explicitly today, in response to some arguments advanced by some of my libertarian friends:
Under the American system of separation of powers (and according to the explicit terms of the Constitution itself), the three major functional powers of government – the legislative power (to make laws), the executive power (to enforce, or execute, the laws), and the judicial power (to interpret the law and apply it to particular cases, or disputes) – are put in separate hands, to help prevent abuse of power. Article II vests “the executive power” in the President; his most important constitutional responsibility is to see that the laws are faithfully executed, or enforced. Part of the President’s executive power is his discretionary authority over foreign affairs; thus, foreign policy, with a few exceptions, falls within the President’s legitimate authority. (The most important of those exceptions is the so-called “war power,” which is really a bundle of powers that the framers of the Constitution deliberately split between Congress and the President: Congress is given the powers to declare war and to make regulations for the armed forces; the President is given the power to wage war as well as actual command of the armed forces, through his power as “Commander-in-Chief.”) Except for one minor power granted to the President in Article II – the power to give Congress an annual message reporting on “the state of the Union,” in which he may recommend legislation to Congress – the Constitution grants the President absolutely no authority over domestic policy. Moreover, except for the President’s limited veto power (which was meant as a safeguard against unconstitutional legislation, not a political tool for presidents to use to force their policy agendas on Congress), the President under the Constitution has no legislative, or law-making, power; Article I vests that power in the Congress. Virtually all the major domestic “issues” that the two major-party presidential candidates and their campaigns are discussing this year – energy (including gasoline prices), the economy (including the so-called “mortgage crisis” and Wall Street’s recent downturns), “health care” (typically used as a shorthand for socialized medicine), and so on – are matters that, constitutionally speaking, are properly within the purview of Congress. They are policy questions which ought not directly concern the President at all, except to the extent that presidents may, in their annual messages to Congress, recommend legislation. Yet, in the modern era – especially since the 1970s, with Congress’s passage of the Budget Act and with the rise of the so-called “imperial presidency” under Nixon and his successors (both Democrat and Republican) – Congress has essentially abdicated its constitutional authority to determine public policy and to make the laws to the President. Little wonder that the American people, and the major candidates for that high office, think of the President as “leader” of the country. It’s almost as if the American system of government, with its emphasis on separation of powers, has been transformed into the British system of parliamentary government, with the prime minister (the country’s political leader, who both heads the majority party in Parliament and the executive departments of the Ministry) holding both the legislative and executive powers. That was exactly the system that the framers of the Constitution sought to avoid, with their carefully crafted system of separation of powers coupled with checks and balances. The Framers would be appalled at today’s “imperial presidency” – and at the candidates who seek to exercise such dangerously unchecked powers.
In a fairly famous essay (famous, at least, among libertarians) the great 19th-century anarchist thinker, Lysander Spooner, questioned the authority of the Constitution. Writing just after the end of the Civil War – that is, some 80 years after ratification of the Constitution by the state ratifying conventions in 1787-90 – Spooner argued that the Constitution “has no authority or obligation at all, unless as a contract between man and man,” and that it “does not so much as even purport to be a contract between persons now existing” but rather “at most” was a contract “only between persons living eighty years ago,” who of course were “all dead now.” Moreover, he maintained that the Constitution not only bound nobody circa 1870 but that “it never did bind anybody” because it “was never signed, nor agreed to, by anybody as a contract.” (Spooner, “The Constitution of No Authority,” 1870.) The problem with Spooner’s argument is that it confuses ordinary contract law with constitutional law. It fundamentally misunderstands the whole theory on which the American system of government – and American constitutions – were founded, the philosophy of government of the Anglo-American radical Whig thinkers, who conceptualized government as a special kind of contract. The most famous of those thinkers, particularly in his influence on America’s founders, was John Locke, who in his Second Treatise on Government (published in 1690, just after the English Glorious Revolution), maintained that governments originated when a majority of people living in a given society agree to create a government and to abide by its legitimate laws, in order to better secure their natural rights. As Locke explained (and as America’s founders so well understood), the rights of the people do not come from government; they are inherent in human beings, as human beings. But as Locke argued (and as America’s Declaration of Independence proclaimed as this country’s founding philosophy), government is entirely created by human beings – by the majority of people in a given society – in order to secure these rights, and government derives its just powers “from the consent of the governed.” Consent, to Locke and to America’s founders, never meant the direct, explicit consent of every single person living in the society; it meant the consent of a majority of persons. It’s practically impossible to require the kind of consent that Spooner demanded; no government could exist under such a unanimity requirement (at least in a large and diverse society). The principle of majority rule thus is a fundamental principle of American government, associated closely with the truly revolutionary American political principle of “popular sovereignty” (the idea that sovereignty, or the ultimate political power in society, remains vested with “the people,” that is, the aggregate of individuals who compose the society, and not with the government at all). Both popular sovereignty and majority rule require some doctrine of implied consent; otherwise, no government could long endure, as both James Madison and Abraham Lincoln were aware of. (Madison argued for the principle of implied consent in his famous exchange with Thomas Jefferson over the question whether the Constitution ought to be revised with each generation, as Jefferson had maintained; Lincoln argued for the principle of majority rule when in 1861 he denied the supposed “right” of Southern states to secede from the Union simply because they were unhappy with the results of the election of 1860.) Nevertheless, it’s equally fundamentally that both popular sovereignty and majority rule are not unlimited, because of the fundamental Lockean (or radical Whig) principle that government exists solely to safeguard the natural rights of individuals. As Thomas Jefferson said in his First Inaugural Address, majority rule “to be rightful, must be reasonable”: the will of the majority prevails, but only so long as it does not invade the legitimate rights of individuals. Some modern libertarians, inspired in part by Spooner’s critique of implied consent, have similarly questioned whether libertarians (including not only anarchist libertarians but also “minarchists,” that is, limited-government libertarians) ought to seek to “restore” the Founders’ Constitution, as some recent books by libertarian authors have argued. (See especially Randy Barnett’s Restoring the Lost Constitution (2005) and Judge Andrew Napolitano, The Constitution in Exile (2006).) In a provocative essay recently published on the Foundation for Economic Education (FEE) website, Sheldon Richman (editor of FEE’s magazine, The Freeman) has argued that it’s basically counterproductive for libertarians to appeal to the “original meaning” of the Constitution because the Constitution itself was “the product of compromise, crafted so as to be acceptable both to Federalists, those who wanted a strong central government, and Antifederalists, those who wanted a weak central government, such as the one under the first [national] constitution, the Articles of Confederation.” The Federalist supporters of the Constitution were themselves divided as to the interpretation of the Constitution, as shown by the political/constitutional debates of the 1790s – such as Hamilton’s proposal to establish a Bank of the United States, versus Jefferson’s and Madison’s opposition to the Bank on the grounds that it exceeded Congress’s powers under the Constitution. Emphasizing that “to constrain the powers of government” is conspicuously absent from the preamble to the Constitution, Richman concludes that the cause of freedom is not helped “merely by invoking a political document written by men who thought the main problem with America was too little, not too much, government.” (Sheldon Richman, “The Goal Is Freedom: Was the Constitution Really Meant to Constrain the Government?” Aug. 8 (emphasis in the original).) Much as I admire Sheldon (and usually agree with him, I respectfully must disagree with him on this point. True, as he argues, the cause of freedom ultimately must be argued – and people (especially non-libertarians) must be convinced on grounds of reason and even ethics, not just on the authority of the Constitution or its framers – nevertheless I believe he fundamentally misunderstands both the Constitution itself and its context in early American political history. The Constitution was indeed, in many respects, a product of political compromises – compromises made by the delegates at the Constitutional Convention in Philadelphia in 1787 – but it distorts the position of the Federalist supporters of the Constitution to say that they “thought the main problem with America was too little, not too much, government.” That might be true of some of the framers of the Constitution – particularly Alexander Hamilton, who thought the national government established by the Constitution was too weak and thus who sought to bolster its powers by his proposed financial program as President Washington’s Secretary of the Treasury. But it was Hamilton’s financial program (particularly his proposal for the Bank of the United States) that prompted Jefferson and Madison to organize the nation’s first opposition political party, the “Republican” party (as they called it) because they believed they were defending the principles of republican government against men like Hamilton who were conspiring (as they saw it) to “Anglicanize” the American constitutional system (in other words, to undo the American Revolution and to reintroduce the British “monarchical” and “aristocratical” system). History – the history of the United States in the 19th century alone – proved Jefferson and Madison right; Hamilton’s Federalist party lost not only the election of 1800 but became a permanent majority party at the national level and was dead by the 1820s. The “era of good feelings,” of James Monroe’s presidency, was followed by the creation of America’s “Second Party System” – the split between the Jacksonian Democrats (the radical wing of the Jeffersonian Republicans) and the National Republicans, or Whigs (the more moderate wing of the Jeffersonian Republicans), the forerunner of today’s “Third Party System,” of Democrats vs. (Lincoln) Republicans. More to the point, founders like Jefferson and Madison were equally concerned about state governments abusing their powers as they were about the national government abusing its powers. Indeed, the framers of the Constitution inserted in the document (in Article I, Section 10) several important limits on the powers of the states; and Madison, in the amendments he proposed in 1789 that eventually became the federal Bill of Rights, the first ten amendments to the U.S. Constitution, also sought (unsuccessfully) to further limit state powers, by explicitly protecting such fundamental individual rights as freedom of religion, freedom of the press, and the right to a jury trial. (Madison understood an important point that some modern libertarians sometimes seem to ignore: that the rights of individuals are just as endangered, and often are even more endangered, by the powers of state and local governments as they are by the powers of the national government. Today, for example, think of the power of eminent domain and how much power local government authorities have over homeowners’ property rights.) Eventually, after the Civil War, when the Fourteenth Amendment was added to the U.S. Constitution putting important additional limits on the powers of the states (and thereby safeguarding the fundamental rights – the “privileges and immunities” -- of the people of the several states), one can say that the Founders’ vision of a Constitution constraining the powers of both the states and national governments was finally realized, at least on paper. Nor is it at all informative that the framers of the Constitution omitted from the preamble its purpose was to constrain the powers of government. We should not expect them to have said so, because it was clearly understood by all Americans of the founding period – which produced not only the first national constitution, the Articles of Confederation, but also the first state constitutions – that the most essential purpose of a constitution was to constrain the powers of government. Why have written constitutions at all? America’s founders understood that constitutions not only could contain structural devices for limiting power (devices like separation of powers, checks and balances, enumeration of powers, and declarations of rights as well as explicit limits on powers), but that the text of a written constitution itself becomes an embodiment in writing – in other words, a memorialization – of the sovereign authority of “the people” and especially of the powers they (or a majority of them) have granted to the national government. (With regard to the U.S. Constitution, that’s not the people of the United States as a whole but rather the people of the several states that compose the United States, which is a union of the states.) Because the federal government legitimately has only those powers granted it by the people of the several states, as memorialized in the U.S. Constitution, the power-granting clauses of the Constitution are especially important. This is where the “original meaning” of those clauses becomes especially relevant, to this day. No one – whether a popular president like Franklin D. Roosevelt, or even a majority of justices of the U.S. Supreme Court (including the justices of the “Roosevelt Court” of the late 1930s and early 1940s, pro-New Deal justices whom FDR appointed to “pack” the Court and who helped foster the so-called “New Deal Revolution” in constitutional interpretation) can change the meaning of those clauses from what a majority of the people at the time they were added to the Constitution understood them to mean. Justice Clarence Thomas, for example, is right in his concurring opinion in the 1995 case of United States v. Lopez, when he maintains that the Court since the late 1930s has misinterpreted Congress’s power under the so-called Commerce Clause (its Article I, Section 8 power to “regulate commerce among the States). The Court is wrong not only because it has increased that power well beyond what the framers of the Constitution meant by those words, but also (and more fundamentally) because the Court’s “liberal” justices and their “broad” reading of the Commerce Clause power as virtually a blank check for Congress to legislate on whatever the hell it wants amounts to a complete subversion of the whole text of the Constitution and its system of enumerated federal powers. The Constitution does have an objectively true meaning, determined not by subjective “intent” of its framers but rather by the objective evidence of the text of the Constitution itself and the context in which those words were put into the Constitution. There is indeed a right way and a wrong way of interpreting the Constitution, and for most of the 20th century (and right up to today), unfortunately, the majority of justices of the Supreme Court (along with the presidents, the vast majority of members of Congress, and indeed much if not most of the American people) have interpreted it the wrong way. (For more on this, see my essay on “Interpreting the Constitution Contextually.”) We must remember the words of the Declaration of Independence, the statement of our nation’s founding principles: “that to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.” The people of the several states who compose the United States have consented to grant the national government only those powers explicitly given it in the text of the Constitution. The Supreme Court justices, by taking a “broad” reading of the power clauses of the Constitution, cannot legitimately add to those powers because the only legitimate way – the only constitutional way – to add to federal powers is by the process stipulated in the Constitution itself, an amendment to its text, under the procedures outlined in Article V. As Thomas Jefferson noted in 1803, “Our peculiar security is in possession of a written Constitution. Let us not make it a blank paper by construction.”
| Link to this Entry | Posted Tuesday, September 16, 2008 | Copyright © David N. Mayer |
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