How Can Words On Parchment Constrain Executive Overreach? Guest Essayist: James D. Best

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“Governments are instituted among Men, deriving their just powers from the consent of the governed”  The Declaration of Independence used these words to legitimize our founding as a nation. Fifteen simple words, but they embodied a world-shattering idea. Kings supposedly derived their authority from God, but the Declaration declared that “all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” These subversive words flipped the divine right of kings on its head. Instead of kings, God endowed all of mankind with natural rights.

Words can be powerful.

That is, unless they’re ignored. The Constitution is the “supreme law of the land,” but many don’t accept that enumerated powers limit government action. Elected officials “solemnly swear … to preserve, protect and defend the Constitution of the United States,” but many view the words as cant uttered during a swearing-in ritual. Lesser laws are based on a reasonable man’s interpretation of the language, but many regard the “supreme law of the land” as a living document that can mean whatever we need it to mean on any particular day.

Did the Founders error in thinking that words scribed on parchment could secure our liberty? The Founders were many things, but naïve they were not. The Father of our Country and the Father of the Constitution had their eyes wide open. George Washington wrote, “No wall of words, that no mound of parchment can be so formed as to stand against the sweeping torrent of boundless ambition on the one side, aided by the sapping current of corrupted morals on the other.” James Madison added in Federalist 48, “A mere demarcation on parchment of the constitutional limits of the several departments, is not a sufficient guard against those encroachments which lead to a tyrannical concentration of all the powers of government in the same hands.”

The Founders knew that words were not enough. Our republic’s survival has always relied on each generation courageously defending our heritage. The prerequisite, of course, is that each generation recognize our heritage. This used to be such a standard part of American schooling that Constituting America might not even have been necessary. Today my daughter can earn a political science degree from a California university without reading a single Federalist Paper. For the most part, legal immigrants know more about our national heritage than the citizens born and raised within sight of amber waves of grain.

If words cannot constrain executive overreach, what can? Only principled application of the powers bestowed by those words. Action, not recitation. As Madison wrote in Federalist 51, “The great security against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others.”

What assigned powers are available to “counteract” executive overreach?

The legislative branch’s checks on the executive include the power of the purse; impeachment power; authority to declare war; a veto override provision; approval of appointment to fill a vice presidential vacancy; a required presidential State of the Union address to Congress; and Senate approval of appointments, treaties, and ambassadors. Although not quite as obvious of a check, Congress can also refuse to pass a bill the president wants passed. This is relevant today because President Obama believes Congressional inaction somehow transfers legislative authority to him.

The judicial check on the executive is judicial review. The chief justice also sits as president of the Senate during presidential impeach­ment.

The Founders did not restrict the checks to the three Federal branches: They also intended the states to be a potent check on the national government. The Constitution once included five provisions for this purpose: Enumerated powers (later reconfirmed by the Tenth amend­ment); equal state representation in the Senate; senators elected by state legislatures; limited national taxing authority; and an Electoral College to select the president. Unfortunately, few in Washington consider the enumerated powers a constraint; senators are now popularly elected; the Sixteenth Amendment allows Congress to collect taxes on incomes, from whatever source derived; and the Electoral College is under attack. These provisions have severely weakened the states as a check on a growing national government, so the states have turned to lawsuits as their primary weapon.

Few people see a problem with executive orders that make or alter laws as long as the justification is wrapped in virtuous motives. Good intentions, however, do not make sound government. Even a benevolent authoritarian regime can morph into something quite nasty. It has happened time and again throughout history. It’s past time to correct the trim and steer the ship of state back onto a constitutional course.

Which powers should Congress and the courts use? The sagacious Madison again provides the answer. “The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack.”

James D. Best, author of Tempest at Dawn, a novel about the 1787 Constitutional Convention, Principled Action, and the Steve Dancy Tales.

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6 replies
  1. Barb Zack
    Barb Zack says:

    Is it too late for our education system to start again to teach basic Civics and Government courses? Mr. Best writes that his daughter can get a degree in Political Science in California without reading a Federalist Paper. In 1979, I minored in Poly Sci at College without ever picking up the Constitution or a Federalist Paper. The Department chair was a card-carrying Communist…

    It will have to be up to parents and grandparents to teach their children about the true history of our Nation and the implications. It won’t be easy and if we don’t do it, our Nation will be lost in a generation, maybe less. We need websites like this and others to help us.

    I share these posts everyday; we don’t have much time left.

    Reply
    • Ron
      Ron says:

      Barb, google yesterday’s Wall Street Journal article titled “U.S. Students Stagnate in Social Studies,” author Caroline Porter. The stats are pretty poor, with about 80% of eighth grade students deficient in U. S History and Civics. You’re correct, it will take a huge effort by parents and grandparents, and other concerned citizens willing to work and not just complain while spending all their free time engaged in nothing but pleasure. There are many ways we can work on this, but it will not be easy and it will take time. We just have to start.

      Reply
    • James D. Best
      James D. Best says:

      I work with groups of parents that home school. I also lecture at University of Nebraska at Omaha. We all need to get out there and pass down what we know. Strange. It’s almost like we’re returning to an oral history culture.

      Reply
  2. Ralph Howarth
    Ralph Howarth says:

    The states have a few more checks on the executive:

    The A1, S10, Clause 3 State Compact clause is designed so that states can make interstate compacts and keep the federal government out of their business by a mere approval of Congress without any say so from POTUS. Western states already do this with water management. Central states could do this with the Keystone Pipeline. The states could agree to build a pipeline up to the Canadian border without say so from POTUS. A train and truck depot with a pump station and vat could be built near the border that can readily receive a new pipeline connection from Canada. The unconstitutional federal EPA already signed off on the pipeline as well. Reality is that a pipeline has lower risk of pollution and spill than by rail or truck freight.

    The other check is in the notorious A1, S8, Clause 3 Commerce clause craftily is written “…regulate commerce…among the several states…” and does not use the work “control” or “police”. Regulate means simply to “make regular,” which corresponds with the A1, S8, C5 Weights and Measures Clause so that commerce is made standardized and does not grant the power to control the amount of production, prices, or even banning of commerce. That would instead be actual police or control. Regulate is no police or control.

    Deliberation and ratification of the federal Constitution particularly denied internal regulation within states in the arena of Manufactures, Education, and Labor. Nor does that clause use the word “interstate commerce” because “commerce among the states” is not an exclusive power but rather is a shared power WITH the states. If this were not true, then the States Compact clause would not make any sense because if the federal government was given exclusive authority of regulating commerce among the states, then what then if states make a compact concerning interstate commerce under A1, Sec10, C3?

    Reply
  3. Allan Hampton
    Allan Hampton says:

    Decent article Mr. Best, and would have been much better to include Citizens Duty in Citizenship. When exercising a Duty in Citizenship, ballot and jury boxes, citizen’s decision can override or overrule all Supreme Court decisions, all laws ever enacted, and question the validity of every Amendment. As neither SC decision nor laws can amend the Constitution.

    Reply

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