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.
Expanding Presidential power usually erodes democracy, expands government, and facilitates the rise of an increasingly unaccountable “Imperial Presidency”. Ironically, giving Presidents more power to control spending does just the opposite.
The struggle over government spending has been a fundamental point of contention since the earliest days of our Federal Government. In the last twenty years, this issue has split the Democrats in Congress, frustrated Republican and Democratic Presidents, and generated numerous Supreme Court cases. The 1974 effort to resolve the matter, once and for all, substantively contributed to the current explosion in federal spending.
Article 1, Section 8, Clause 18
18: To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
In a letter to Edward Livingston in 1800, Thomas Jefferson addressed the potential of infinite expansion of national power through the “necessary and proper clause” (Article I, Section 8, clause 18) after Congress chartered a mining company. Jefferson derided the exercise by comparing the constitutional claims of the law’s supporters to a popular nursery rhyme:
“Congress are authorized to defend the nation. Ships are necessary for defense; copper is necessary for ships; mines, necessary for copper; a company necessary to work the mines; and who can doubt this reasoning who has ever played at ‘This is the House that Jack Built’? Under such a process of filiation of necessities the sweeping clause makes clean work..”
Who can doubt this, indeed? Especially when, just last year, in U.S. v. Comstock, Justice Breyer led the Supreme Court in finding that the necessary and proper clause permits the national government to remit into federal civil commitment persons deemed to be sexually dangerous, even though the federal government could no longer hold them on a federal criminal charge. After applying one of the malleable multi-factor balancing tests he so favors, Justice Breyer determined that the necessary and proper clause permits Congress to enact laws that criminalize conduct that threatens the beneficial exercise of its enumerated powers; and that, therefore, Congress can imprison those who engage in that conduct; and that, therefore, Congress can pass laws to govern those prisons; and that, therefore, Congress can act as custodian of its prisoners; and that, therefore, Congress can pass a law that allows the federal government to keep those former prisoners “to protect the public from dangers created by the federal criminal justice and prison systems.” Besides, Breyer averred, the new law was only a “modest expansion” of Congress’s power. Indeed. Were he alive, Jefferson would recognize the game.
The necessary and proper clause is the Constitution’s version of the “implied powers” theory. Congress is the American people’s legislative agent. As such, the people gave Congress certain objectives to achieve. It is a basic principle of agency law that the agent has not only the powers expressly assigned by the principal but, by implication, also those powers necessary to carry them out. But there is no need for application of “implied powers” because the people, as Congress’s principal, themselves provided the means to carry out Congress’s assigned objectives. The necessary and proper clause specifies that Congress has the power to make laws “necessary and proper for carrying into execution” the powers conferred by the Constitution on the federal government.
The clause has long been hotly debated. Opponents of the Constitution, especially New York’s Robert Yates (“Brutus”), repeatedly warned of the dangers from an expansive interpretation of “necessary and proper.” They predicted that an unrestrained power to accomplish formally limited powers itself effectively created an unlimited power to legislate through pretext. Madison, responding to Yates in Federalist 44, sought to tie the clause to the other powers in a luke-warm argument that made the clause sound like the least worst alternative the Framers faced. Moreover, he attempted to narrow the meaning of the clause to those means that were “indispensably necessary” and “required.” Ultimately, however, Madison threw up his hands, effectively conceded the argument about the dangers, but urged the people to remain alert to usurpations by Congress.
The Supreme Court weighed in with McCulloch v. Maryland in 1819. Chief Justice Marshall rejected the restrictive interpretation of “necessary” urged by the old anti-Federalist warhorse, Maryland’s wily attorney general Luther Martin. Martin’s interpretation had support both in the dictionary meaning of the word at the time and Madison’s slips-of-the-pen in Federalist 44. Although this decision is correctly read as providing the constitutional material for the 20th century’s “Big Bang” expansion of federal power, Marshall apparently believed he was much more restrained and cautious. He even took the unprecedented step of defending that view in a pseudonymous battle of editorials in the Richmond papers with Virginia’s chief justice, his cousin Spencer Roane. Marshall insisted that, while the reading of “necessary” was to accommodate the needs of the times, the clause had to be tied to the other enumerated powers. Any such law had to comply with both the letter and the spirit of the Constitution. It was not enough that Congress could somehow connect a law to the form of one of its other powers. Pretextual uses of the necessary and proper, or any other clause, would be unconstitutional.
In his almost flawless dissent in Comstock, Justice Thomas takes Justice Breyer to task for abandoning the Constitution’s text and Chief Justice Marshall’s boundaries. Thomas points out that the Comstock majority makes no attempt to show that the law itself directly carries into effect any enumerated power of Congress. At best, it does so through an attenuated chain, exactly as Jefferson criticized in his letter to Livingston. The only objective that the Comstock Court mentions that the law directly advances is “to protect the public from dangers created by the federal criminal justice and prison systems.” And that is not an enumerated power.
The necessary and proper clause is not an isolated provision. It is part of the delicate balance of national and state powers the Framers established in the American version of federalism. That balance is made concrete in several other provisions, beginning with Article I, Section 1, which declares that “All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representative.” That premise, along with the very fact of a limited enumeration of Congressional powers, is evidence that the letter, and certainly, the spirit of the Constitution argue against so expansive an interpretation of the necessary and proper clause that Congress is given an unrestricted power to legislate through a constitutional back door.
The Court’s expansive and unfounded reading of necessary and proper reflects the dominant Washington credo. One has heard over and over from certain partisans in the debate over the current administration’s programs that Congress has the power to do whatever it wants and that the Constitution has no part to play in the debate. Indeed, judging by the distaste, indeed hostility, shown by some Congressmen to the reading of the Constitution in that chamber at the opening of the current session, raising constitutional questions about Congress’ actions may represent some novel mutation of hate speech. Of course, indicting the Constitution (especially its formal restraints on legislative power) as an obstacle to “social advancement” is not new. Then-professor Woodrow Wilson and similarly-inclined academics charged that central tenet of Progressivism a century ago. How little has changed in the progressive world-view.
At the same time, it is undeniable that, over the years, the doctrine of enumerated powers has suffered severe erosion, an erosion that could not have occurred over so long without the tacit complicity of the American people. They have not been alert to Congressional usurpations, as Madison urged. It is inevitable, as people intuit, and as writers from Plato to Machiavelli to Yates and Madison have explained, rulers seek first to maintain and then to expand their power. Over time, there occurs an institutional accretion of power at the expense of personal liberty, as each precedent gives rise to an incremental expansion. Again, the contest over ObamaCare now playing out in the federal courts is the latest (and perhaps final) step in the enfeeblement of the doctrine.
An expert on constitutional law, Prof. Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums. Read more from Professor Knipprath at: http://www.tokenconservative.com/ .
Article I, Section 1 : 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
The Constitution of the United States established three separate branches of the federal government, namely the legislative branch, the executive branch and the judicial branch. Superficially, therefore, one might think that it was a matter of chance as to the order in which each branch would be outlined and defined in this founding document. Such thinking, however, would be incorrect. The Founding Fathers did not write the Constitution without careful reference to the prior scholarship of Great Men, and without reference to the history of all prior republican forms of government. James Madison of Virginia, in particular, drawing heavily upon materials sent to him from Paris by Thomas Jefferson, made certain that the Constitution evolved from the past experience of all the republics that had failed, and would not be written out (as would later be the case with the disastrous French constitution) as an act of constructivist rationalism.
John Locke’s seminal book, Two Treatises of Government – the book that provided the intellectual justification for England’s Glorious Revolution of 1689 – provides the rationale for placing the legislative branch of government at the very beginning of the Constitution: ‘The great end of Men’s entering into Society, being the enjoyment of their Properties in Peace and Safety, and the great instrument and means of that being the Laws establish’d in that Society; the first and fundamental positive Law, which is to govern the Legislative it self, is the establishing of the Legislative Power;…This Legislative is not only the supream power of the Commonwealth, but sacred and unalterable in the hands where the Community have once placed it; nor can any Edict of any Body else, in what Form soever conceived, or by what Power soever backed have the force and obligation of a Law, which has not its Sanction from that Legislative, which the publick has chosen and appointed.’ (Locke, II, para. 134)
The Founding Fathers wisely embraced Locke’s argument establishing the legislature as the central pivot of any social contract through which individuals would consent to place their lives, liberties and properties under the protection of a civil or political society. It is no accident that Article I of the United States Constitution deals first with the legislature. Although commentators frequently describe the three branches of government as ‘separate but equal’, the Constitution is silent on that issue. Although the Founders designed the three branches to be inter-connected, each branch checking the power of the others, they surely relied on Locke’s Second Treatise in recognizing the legislative branch as the fulcrum of the social contract.
The decision to separate the three branches, as defined in Articles I-III, by no means was set in stone when the Convention first assembled in Philadelphia. James Madison, in particular, was deeply impressed by the 1765 Commentaries of William Blackstone, who favored a single unified branch system: ‘It is highly necessary for preserving the balance of the constitution, that the executive power should be a branch, though not the whole, of the legislature. The total union of them, we have seen, would be productive of tyranny; the total disjunction of them for the present, would in the end produce the same effects, by causing that union, against which it seems to provide. The legislature would soon become tyrannical, by making continual encroachments, and gradually assuming to itself the rights of the executive power.’ (Blackstone, Commentaries, 1, 149)
Following up on this argument, James Madison while awaiting the arrival of other delegates, etched out a Virginia Plan that envisaged one branch only – the legislative branch. This branch would be responsible for appointing the executive and the judiciary, although these legislative agents jointly would be empowered to veto legislative decisions under certain circumstances. However, even such vetoes would be subject to legislative override by some unspecified super-majority.
According to the Virginia Plan, there were to be two chambers of the legislature (a bicameral legislature). Each state would be represented in each chamber in proportion either to its financial contributions or to its number of free inhabitants. The small states perceived such an arrangement to constitute an inordinate potential threat to their liberties by some effective coalition of the more populous states. In the Connecticut Compromise of June 29, 1787, the delegates abandoned the Virginia Plan in favor of a bicameral legislature in which the lower chamber (The House) would be based on state populations and the upper chamber (the Senate) would have equal representation. In reaction to this Compromise, James Madison etched out an ultimately successful case for separating the three branches of government as added checks and balances against the greatly-feared forces of faction.
The question whether the legislature should be composed of a single chamber (unicameral) or two chambers (bicameral) was far from fully resolved at the outset of the Convention. When George Mason proclaimed to the gathered delegates that ‘the mind of the people of America’ was ‘well settled’ in its attachment to the principle of having a legislature with more than one branch, he was not truly asserting that the matter was beyond contention. True, eleven of the thirteen states enjoyed bicameral legislatures. However, the Continental Congress consisted of but a single chamber and Pennsylvania, host to the Convention (and the home of the First American, Benjamin Franklin), operated with a unicameral legislature.
Ironically, the major forces in favor of bicameralism at the Convention were the example provided by Britain on the one side and the colonial experiences of the People on the other. On the one side – and despite the War of Revolution – there lingered a long-standing admiration for the British constitution, at least in its mythic, uncorrupted, form. From this perspective, the vision of a truly balanced legislature, government, and society gave special authority to the British model. On the other side, most of the colonies had already developed an upper legislative chamber out of their governors’ councils, which typically represented the concentrated power of great landlords and wealthy merchants.
For persons of property, as all the delegates to the Convention assuredly were, an upper chamber that might check the predations both of a covetous popular assembly and of an aggrandizing executive was especially attractive. For the populist-minded, the check provided by the upper chamber on executive powers was also not without its attractions. Thus, the case for bicameralism could be argued both from a quasi-aristocratic and from a profoundly-republican point of view. Thus it came to pass that discussion of a second upper chamber presumed that its’ membership would be smaller, that members would hold longer terms of office, and that members would be more select, than in the case of the lower chamber.
The lower chamber (the House of Representatives) thus came to be viewed as an embodiment of the popular will, an assembly of representatives who would come close to being reflexes of the people. Such a body was widely viewed as a necessary foundation of popular government based upon consent. Standing alone, however, the reflexes of such a body might become as passionate, tyrannical and arbitrary as those of the people that it represented. An upper chamber (the Senate), capable of checking the foolish or irrational impulses of the population at large, could be viewed as an essential safeguard to the lives, liberties and properties of those who otherwise might be exposed to the untrammeled excesses of the popular will. The later descent of the French Revolution – with its over-simplified constitutional settlement – into tyranny, bloodshed, and ultimately into the dictatorship of Napoleon Bonaparte, would amply justify these reservations advanced so serendipitously in 1787 by delegates to the Philadelphia Convention.
Eventually, the grand design fell into place in Philadelphia and, following a great national debate, was ratified into a magnificent social contract. Article I, Section 1 of the United States Constitution merely sets the stage. The full play unfolds in the remainder of this most precious of all constitutional documents.
Charles K. Rowley, Ph.D. is Duncan Black Professor of Economics at George Mason University and General Director of The Locke Institute in Fairfax, Virginia. He is author of Liberty and the State (The Locke Institute 1993) co-author (with Nathanael Smith) of Economic Contractions in the United States: A Failure of Government (The Locke Institute and the Institute of Economic Affairs 2009) and the author of Never Let A Good Crisis Go To Waste (The Locke Institute 2010). For further details see www.thelockeinstitute.org
22 Responses to “February 22, 2011 – Article 1, Section 1 of the United States Constitution – Guest Essayist: Charles K. Rowley, Ph.D., Duncan Black Professor of Economics at George Mason University and General Director of The Locke Institute in Fairfax, Virginia”
- Ron Meier says:
There are some excellent points in this essay to keep in mind as we watch events develop in the Middle East. We can see the passion of the people at work, but are there checks in place that will “safeguard the lives, liberties and properties of those who otherwise might be exposed to the untrammeled excesses of the popular will.” Also interesting to watch is how the checks in the state systems work to constrain the passions of the populace in Wisconsin and other states that will follow in Wisconsin’s footsteps as state budget problems are addressed. Very timely that we should be starting this study at this historical moment.
- Shannon_Atlanta says:
Thank you Dr. Rowley. It amazes me that these men created our government in a timely and relatively quick manner. Compare that to today where it takes months and months for our “leaders” to pass a budget; I am always amazed at what all they accomplished-filled with God’s will in my humble opinion!
- Susan says:
I found it interesting the evolution of the Senate. Out of the House of Lords via the wealthy to a voice of the States as a corporate entity as a counter balance to the tendency of democracies to devolve into mob tyranny.
- Shannon_Atlanta says:
Sue, good points. I think many of us feel that our Founders hated the British system. From what I have read, they actually admired many aspects of the government-thus they borrowed from it. They also were well read on the Anglo-Saxon political system, which England had slowly gotten away from; thus men like Jefferson wanted to get some of their ways back-free will, republican government, etc.
- Cutler says:
The relatively novel idea of having the legislative power invested in two distinct houses shows the genius (God’s?!) at work when the Founding Fathers created the House and the Senate.
- steve b says:
I did not know Pennsylvania originaly had a unicameral legislature. Our Founding Fathers were indeed true statesman. I fear we will never again have the leadership and vision our Founding Forefathers had.
- Charles K Rowley says:
It is indeed quite remarkable how well educated and knowledgable many of the Founding Fathers truly were. At a time when books were scarce, distances hard to travel, and in a country that had experienced a major internal war, James Madison, Benjamin Franklin and others somehow made the effort to read and understand why past republics had always failed. On that basis they were able to craft a Constitution that would survive at least for two centuries, though now, of course, it is tattered and torn. In 2011, when books are easily available and the internet immediately accessible, how many American politicians, from the President down, are well read in such literature. Until January 2011, how many elected politicians had actually read the Constitution? Sadly, knowledge appears to regress as the opportunities to access it expand. I am sure that Benjamin Franklin would have had an amusing way of making that point!
- Ralph T. Howarth, Jr. says:
Part of the end run of the bicameral system came out of the right of sufferage. It became a grand principal that it is unjust to demand citizens to obey laws that they have no say in the writting and amending of such laws. So it was that the rights of land owning free-holders that were 90% in the majority at the time balanced against the future influx of non-land holding immigrants that was expected to come. The Founders thought it best that the bicameral system would be predominant land-holders in one house and populist commoners in the other house. This also did away with the “mixed government” feature of Parliament where the caste system of seats designated to caste members of society to represent the various interests of society. Congressmen now are elected upon full popular vote of the electorate in their district regardelss of class.
As for the presupposition that that the THREE branches of government are separate and EQUAL, the legislature is actually the most powerful branch of government. In Federalist #51 James Madison said: “But it is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates.”
The legislature indeed is the most powerful branch for it has more checks on the other branches of government than any other branch. First, it passes statuatory law. The executive cannot act nor the judiciary pass judgement without laws to act on. And if the judiciary makes an opinion that is in a quandary with the law, Congress simply can pass more statuatory law. Congress consents to appointments of officers in the other branches; and has the power to impeach and remove the same. Congress has the power to tax and appropriate funds and so can effectively defund any operation of government and is another form of congressional oversight on the other branches of government. At the last, Congress has the power regulate the appellate jurisdiction of the Supreme Court such that Congress may deny the SCOTUS of hearing particular cases among the states. And contrary to popular opinion: judges do not make or repeal laws. Judges simply decide whether or not one party in a case suffers harm from another party and then gives an opinion why they decide as such. Court decisions are not law therefor they are called OPINIONS.
- Debbie Bridges says:
It is interesting to watch the three branches of Government in today’s political arena. Health Care for instance. This was originally passed in the Legislative but with the change of political power in the House and the will of the people the House has voted to defund it. Hopefully the Supreme court will hear the case and rule it unconstitutional. At the same time though, I worry because the President seems to circumvent the Legislative Branch through Executive Orders and appointing Czars not subject to the normal Advise and Consent process of the Senate.
- zac allen says:
This is an interesting discussion at this very moment in time in this country. We have educators, media pundints, and all sorts of people talking about democracy in action. Our Founders knew through the lens of history, that true democracy , mob rule, was no way to run a government. It eventually destroys the individual, as does collective bargaining.
Representative democracy with a republican form of Government is what they created…. and now we have Progressives trying to undermine that principle. Bi-Cameral houses with each a distinct role. Incredible… isn’t it….. sorry for the skipping around
- Charles K. Rowley says:
Ralph, Debbie and Zac all make great points on the issue of checks and balances and the role of the legislature. Before FDR, the constitution worked well. Then the legislature began to divest regulatory powers to the President and the Supreme Court buckled under the threat to increase its numbers with progressive appointees. In consequence, the balance shifted. Now the President is far more powerful than was ever envisaged, and the Supreme Court offers excessive deference to the legislature when reviewing laws for their constitutionality. Yet, save for a few bad amendments, the Constitution’s wording has not changed. That is the problem. How can America move back to the true Constitution under such circumstances?
- Janine Turner says:
Dr. Rowley, I thank you for your most informative essay!
It is worth noting how our founding father’s based their decisions, regarding the drafting of the Constitution, on two basic principles: knowledge and history.
They were well read and acquainted with what had worked and what had not, in regard to government, in the past. They also were well acquainted with superb political and philosophical works of great minds throughout history. Their prudence was based on practical precedents.
The checks and balances and bicameral legislature are of brilliant design and most relevant to today as we: 1) still practice it today 2) need to vigilantly maintain these principles.
Only with a keen knowledge of our Constitution’s contents can we preserve our liberties. I thank you for your generosity of time, as it helps me to understand more clearly my call to action!
- Ron Meier says:
re Dr. Rowley,
And, add to that the significant increase in the number of Czars in the current White House. This seems to be adding even more power within the office of the President. Should the Congress do something to disallow power to these czars?
- Jon says:
May I offer a few items in response to “How can America move back to the true Constitution under such circumstances?”
Thomas Jefferson, 1825 in response to William B. Giles who expressed his concern over encroaching federal power.
“I see, as you do, and with the deepest affliction, the rapid strides with which the federal branch of our Government is advancing toward the usurpation of all the rights reserved to the States, and the consolidation in itself of all powers, foreign and domestic; and that too, by constructions which, if legitimate, leave no limits to their power. Take together the decisions of the federal court, the doctrines of the President, and the misconstructions of the constitutional compact acted on by the legislature of the federal branch, and it is but too evident, that the three ruling branches of that department are in combination to strip their colleagues, the State authorities, of the powers reserved by them…”
“And what is our resource for the preservation of the Constitution? Reason and argument? You might as well reason and argue with the marble columns encircling them. The representatives chosen by ourselves? They are joined in the combination, some from incorrect views of government, some from corrupt ones, sufficient voting together to outnumber the sound parts…”
“We must have patience and longer endurance then with our brethren while under delusion; give them time for reflection and experience of consequences; keep ourselves in a situation to profit by the chapter of accidents… meanwhile, the States should be watchful to note every material usurpation on their rights; to denounce them as they occur in the most peremptory terms; to protest against them as wrongs to which our present submission shall be considered, not as acknowledgments or precedents of right, but as a temporary yielding… This is the course which I think safest and best as yet.”
William B. Giles took Jefferson’s advice; he ran for and won the Governorship of Virginia in 1827.
Jefferson alluding to our success, the law of nature IE; Locke.
“A great revolution has taken place at Paris. The people of that country having never been in the habit of self-government, are not yet in the habit of acknowledging that fundamental law of nature by which alone self government can be exercised by a society. Of the sacredness of this law, our countrymen are impressed from their cradle, so that with them it is almost innate. This single circumstance may possibly decide the fate of the two nations.”. 1800 Thomas Jefferson
Adam’s regarding education, including the law of nature IE; Locke
“Let us tenderly and kindly cherish, therefore, the means of knowledge. Let us dare to read, think, speak, and write. Let every order and degree among the people rouse their attention and animate their resolution. Let them all become attentive to the grounds and principles of government, ecclesiastical and civil. Let us study the law of nature…” John Adam 1765
- Ray Simoneaux says:
Janine, I found out about Constituting America by watching Freedom Watch. Thank you and your organization taking on the project. I am truly amazed of just how many people I talk with daily, who have never read the Constitution ( I personally have three pocket size editions; home, office and vehicle). I look forward to learn more of the analysis of OUR Constitution!
Dr Rowley, your reply to Ralph, Debbie and Zac is exactly how I feel about the Constitution! I really get frustrated when talking with friends or co-workers who “believe everything the see or hear on the news.” I often get strange looks/comments when those people close to me, hear me make the statement, “Where in the Constitution does it give them (the politicians) the authority to do that?” I have come to the conclusion that they have never read/understood the Constitution, therefore they don’t know what our politicians can/can’t do. Thank you for your assistance to the Constituting America Organization in their project.
- Shelby Seymore says:
Again, I agree with Cutler. They actually set up this government out of the Bible in Leviticus. This wasn’t a just a remarkable appearance of a government that worked. It’s not the big bang theory! There was Divine Providence and they knew it.
- Charles K Rowley says:
The insights offered by Janine and Jon are very important at this time. The checks and balances written into the Constitution serve a great purpose in slowing down the popular impulse. But this works both ways. When the political situation becomes bleak, as it surely was prior to November 2010, the checks and balances slow down constitutional recovery. The good constitutionalist acknowledges this and bides his time. Any true reversal of fortune must await November 2012, a change in President and a change in Senate majority. This can only occur if key actors understand the Constitution and work cautiously to reinforce constitutionalism rather than to skirt around it. This will irritate the impatient, but the long-run objective must always be kept in mind. In the meantime, some Republican Governors are performing well in their attempts to re-assert states’ rights.
- Ralph T. Howarth, Jr. says:
Chares K Rowley said: How can America move back to the true Constitution under such circumstances?
Tom Woods has an answer to the question: State Nullification
The premise of the State of Virginia ratifying the U.S. Constitution was on the very question of what if the general government department assumes powers not given in Art 1. Sec 8? The answer was that the State of Virginia is a sovereign state free to disregard such federal acts.
- Charles K. Rowley says:
Ralph’s point is exactly correct. But the principle was overriden by the War of Northern Aggression and the victory of the North over the South. Since then nullification has not proved to be an attractive option for States even when the rights of their citizens have been seriously eroded by the federal government.
- Ralph T. Howarth, Jr. says:
My new favorite phrase for townhall meetings is:
“3/4ths the states never ratified such a measure!” More astonished looks.
@Charles K. Rowley,
Another remedy is another Constitutional Convention. Three times we came rather near to having one. Just the imminence of a ConCon can make Congress react. There is a lot of anxiety about having one as there really is no agenda that can be enforced on a ConCon. On the other hand, much of the “horse and buggy” provisions in that 1787 instrument is exploited by political graft no matter whose administration is in office. I have a draft instrument coined “Congress 2.0″ of nearly two dozen amendments which includes a confederate vote measure where a 1/5 dissent on germaneness of a bill, or a bill riding measure, in both federal houses then remands the measure to the states for a confederate vote of 2/3rds majority. A compact soveriegnty of states measure. I also have a lame duck provisional legislation and adjournment/recess appointment and pocket veto bypass amendments, and measures to assure members of Congress spend more time with their constituents; and for Senators, the constituency is the state capitol, affording remote visual conferencing be allowed for members to vote. It sure could use more scrutiny and maturation with tweaks and polished.
- Seth Richardson says:
This section, in conjunction with Article II, Section 1 and Article II, Section 3, delineating the powers and duties of the President are of particular interest at this moment, what with the President deciding all on his own that the Defense of Marriage Act (DOMA) is “unconstitutional” and his directing Attorney General Eric Holder not to further defend it in court.
The question of a President’s authority to refuse or fail to enforce duly-enacted laws of Congress is a serious one which I address in some detail at my blog, The Broadside.
The essence of the problem is that if the President has authority to decide for himself what laws are constitutional and what laws are not, he is usurping both the legislative authority of Congress and the judicial authority of the Supreme Court.
It is my view that this comprises an impeachable offense. This very matter was the subject of an impeachment of Andrew Johnson in 1868. Johnson only survived removal by the Senate by one vote.
As for Holder, he is employed by the United States, which is the People, to represent our interests in court, and to zealously defend ALL laws duly enacted by the Congress, not just the ones he wants to defend or that the President tells him to defend.
He should therefore be disbarred and fired.
- Charles K. Rowley says:
Ralph’s suggestion about a constitutional convention has been discussed recently with respect to the balanced budget amendment proposal. As yet, it falls short of the number of states (two-thirds) required to call the convention. Ralph is correct that even the threat of such a convention tends to bring Congress to heel. The risk is whether a convention – once called – can be constrained to the issue it is supposed to address. After all the 1787 convention ignored its mandate, which was to reform the Articles of Confederation.
Seth’s concern about Presidential overreach is really important. If the United States enjoyed an independent judiciary that is precisely where the federal courts should intervene. But they are filled with inadequates who will not challenge a President. Impeachment is now an entirely political issue and the Congress does not have the votes to impeach and convict a Democratic President. So, such an attempt would be a huge waste of time. Holder holds his position pretty much at Obama’s discretion. And there is not a snowflake’s chance in Hell that Obama will remove a carefully selected ‘brother’ at this time.