Tag Archive for: Article I

Willson v. Black Bird Creek Marsh Company (1829)

, , , , , , , ,
Guest Essayist: Andrew Langer

The Dissolution of the Dormant Commerce Clause:  Willson v. Black Bird Creek Marsh Co.

In The Colorado Kid, author Steven King says, “Sooner or later, everything old is new again.”  This is certainly true when it comes to issues of public policy and constitutional law.  In this essay, we discuss the concept of the “Dormant” Commerce Clause, specifically within the context of navigable waterways.  The issue of who has jurisdiction over “navigable” waters is one that remains a subject of enormous debate—especially as the environmental movement has pushed an ever-more-marginal definition of “navigability” in order to pull more waters under the jurisdiction of the federal government.

Read more

/1 Comment/by

United States v. Curtiss-Wright Export Corp. (1936)

, , , , , ,
Guest Essayist: Daniel A. Cotter

The three branches of the United States government are often questioned with respect to whether their exercise of powers exceeded the limitations imposed upon them by the United States Constitution. In U.S. v. Curtiss-Wright Export Corp. (1936), the issue was the extent of the president’s and executive branch’s power to conduct the foreign affairs of the United States. The decision has been recognized as a very influential one, establishing the president’s supremacy when it comes to foreign affairs.

Read more

/by

McCulloch v. Maryland (1819)

, , , , , , ,
Guest Essayist: Tony Williams

In May, 1818, James William McCulloch was a cashier at the Baltimore branch of the Second Bank of the United States.  McCulloch issued a series of bank notes on which the bank did not pay a Maryland state tax.  The state treasurer quickly sued to recover the money and won a judgment in Maryland’s highest court. The Supreme Court soon accepted the case, which would have a profound impact in defining the principle of federalism, the reading of the Necessary and Proper Clause in the Constitution, and the national vision of the Marshall Court.

Read more

/3 Comments/by

Article I, Section 03

, , ,

Section. 3.

The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote.

Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as equally as may be into three Classes. The Seats of the Senators of the first Class shall be vacated at the Expiration of the second Year, of the second Class at the Expiration of the fourth Year, and of the third Class at the Expiration of the sixth Year, Read more

/0 Comments/by

Common Core: All Too Common Overreach – Guest Essayist: Cynthia Dunbar

, , , , , , , , , , , ,

The three branches of the United States government are the Executive, Legislative and Judicial. The U. S. Constitution lays out the power and authority of each of these separate branches. It is important to note that the powers given to each branch are unique and separate and do not overlap or invade the authority of the other two.

Read more

/7 Comments/by

The Imperial Obama Presidency and the Demise of Checks and Balances – Guest Essayist: U.S. Senator Ted Cruz

, , , , , , , , , ,

Under President Obama, America has witnessed an unprecedented expansion of presidential power.  This is not merely the observation of political opponents.  Liberal law professor Jonathan Turley—who voted for President Obama—has reached the same conclusion:  “We are seeing the emergence of a different model of government in our country—a model long ago rejected by the Framers.”[1]  “What’s emerging,” according to Professor Turley, “is an imperial presidency, an über-presidency . . . where the President can act unilaterally.”[2]

Read more

/17 Comments/by

Federalism On Life Support: The Affordable Care Act And How It Affects You – Guest Essayist: Troy Kickler

, , , , , , , , , ,

Criticism abounds regarding President Barack Obama and executive overreach. To name one example, the Affordable Care Act (ACA), commonly known as “Obamacare,” has raised the ire of many Americans. Expansive government and centralized approaches to political issues, admittedly, started before the Obama administration, but current executive overreach has accelerated the size of the national government and threatens individual liberty.  Various administrative divisions, whether classified as executive agencies or executive departments, such as the Environmental Protection Agency and the Department of Education, have been scrutinized, too. Through “the administrative state,” what some have labeled the “fourth branch of government,” the executive branch seemingly continues to have its fingerprints on more and more aspects of American lives. Read more

/2 Comments/by

Why The U.S. House Is Suing The Obama Administration – Guest Essayist: Hadley Heath Manning

, , , , , , , , , ,

Articles I, II, and III of the Constitution describe the roles of the legislative, executive, and judiciary branches of the federal government. It’s clear that the Founders intended for Congress to make the laws, the administration to enforce the laws, and the courts to interpret the laws.  Although this doctrine of Separation of Powers sounds simple, it’s not. The administrative branch holds great power to promulgate regulations and make executive decisions (orders and actions) that wield the force of law, and today, many fear that this power is being abused. Read more

/5 Comments/by

Article I, Section 09

, , ,

Section. 9.

The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

No Bill of Attainder or ex post facto Law shall be passed.

No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or enumeration herein before directed to be taken.

No Tax or Duty shall be laid on Articles exported from any State.

No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another.

No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.

No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

/0 Comments/by

Essay I by Brutus

, , , , , , ,
Guest Essayist: Justin Dyer, Ph.D., Author and Professor of Political Science, University of Missouri

Scholars generally attribute the authorship of the letters of Brutus to Robert Yates (1738-1801), a prominent New York politician and judge who was a delegate to the Philadelphia Convention in 1787.  After voicing his opposition to the plan of the Convention, Yates returned home to New York. During the state ratification debates, he then became an outspoken opponent of the proposed Constitution. In his polemical essays against the Constitution, Yates’ chosen pen name was Brutus, and his objective was to slay Ceasar. Read more

/0 Comments/by

Amendment XXV, Section 2

, , , , , , , , , ,
Guest Essayist: Hadley Heath, Senior Policy Analyst at the Independent Women's Forum

http://vimeo.com/44178578

Amendment XXV, Section 2:

Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.

The 25rd Amendment, Section 2, explains that in a vacancy in the office of Vice President, the President must act to select a new Vice President, and the Congress must confirm the President’s choice.  More broadly, this Amendment (ratified in 1967) clarifies the line of succession in the executive branch as established in Article II of the Constitution.

Without this Section or this Amendment, it was unclear what to do in the case of a Vice Presidential death or disqualification.  Would the Speaker of the House ascend to this office?  Would the people elect a new Vice President?  Actually, neither happened.  But before the 25th Amendment, the office of the Vice President was simply left vacant 16 times, and it stayed that way until the next election.

Eight times the President of the United States died, and the Vice President left office to become President.  Seven times the Vice President died.  Once, Vice President John Calhoun resigned in order to become a U.S. Senator.

But for the sake of continuity, and in order to keep the important office of Vice President filled, the U.S. ratified this Amendment.  It makes it clear that the President will nominate someone, and the Congress will confirm.  The Congressional confirmation also ensures that the people have a representative voice in approving the new Vice President.

After all, the office of the Vice President carries with it unique Constitutional duties and shouldn’t be left empty.  According to Article I of the Constitution, the Vice President also serves as President of the U.S. Senate, and must cast a vote if there is a tie.  The Vice President is also charged with overseeing, counting and presenting the votes of the Electoral College.

The Vice President also serves an important informal role as the assistant to, or spokesperson for the President.  This role varies from administration to administration, depending on the relationship between the two leaders.

In American history since 1967, only two back-to-back occasions have called for the selection of a Vice President in the manner prescribed by Amendment XXV.  In 1973, Vice President Spiro Agnew resigned.  President Richard Nixon nominated Gerald Ford to the Vice Presidency, and Congress confirmed him.

The following year, 1974, President Nixon resigned.  This meant that Gerald Ford would ascend to the Presidency, allowing him to select a nominee for Vice President to fill his now-vacant office.  He selected Norman Rockefeller, who was also confirmed by the Congress.  This situation resulted in both a President and a Vice President who were not elected in a general election by the Electoral College.

Elections are essential to the American system of governance: They allow the people to select their own leaders.  But, on the rare occasion that these elected leaders cannot perform their duties, Amendment XXV prescribes how new leadership will take charge.

Amendment XXV, Section 2, ensures that the people are at least represented in the selection of this new leadership; the requirement of the new Vice President’s confirmation by Congress means that Members of the House and Senate – the representatives of the people – can check the power of the executive in making this new appointment.

This Section of Amendment XXV serves the important purpose of maintaining the offices of President and Vice President in a manner consistent with government for, of, and by the people.

Hadley Heath is a Senior Policy Analyst at the Independent Women’s Forum.

June 6, 2012

Essay #78

/0 Comments/by

Amendment XXIV, Section 2

, , , , , , , , , , , ,
Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

http://vimeo.com/43382879

Amendment XXIV:

1:  The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any state by reason of failure to pay any poll tax or other tax.

2:  The Congress shall have power to enforce this article by appropriate legislation.

A poll tax is an ancient device to collect money. It is a tax on persons rather than property or activity. As a regressive tax from the standpoint of wealth, it is often unpopular if the amount at issue is steep. But it can also be unpopular for other reasons.

In the United States, such a capitation tax was assessed in many states on the privilege of voting. Amounts and methods varied. One of the last poll taxes of this type, that of Virginia, was just $1.50 per person at the time it was struck down by the Supreme Court in 1966. That is not more than $10.00 in current money, hardly an exorbitant price, except for the truly destitute. But the problem was more than the amount. It was the manner of administration.

The common practice was to require that the tax be paid at each election, and that a potential voter demonstrate that he had paid the tax for a specified number of previous elections. If not, those arrearages had to be paid to register to vote in the ongoing election. The effect of the tax was to hit many lower income groups, but primarily Southern blacks, whose participation in elections dropped to less than 5% during the first part of the 20th century. To be sure, that low rate of participation was not entirely due to the poll tax, but that tax was a particular manifestation of a regime of suppression of political participation by blacks.

The 15th Amendment had been adopted to prohibit overt racial discrimination in qualifying to vote. However, the poll tax and other restrictive measures, such as literacy tests, were not, strictly speaking, race-based, so they did not come within the 15th Amendment. A different solution was needed, according to those who saw the poll tax as intolerable. Literacy tests, if fairly administered (though often they were not), had a clear connection to the responsible exercise of the voting franchise that poll taxes lacked. After all, especially in those years before the electronic media, having a literate electorate was a significant community interest. Republican theory has traditionally looked to having those with the most interest and highest stake take the leading role in the community. Literacy provided a foundation to acquire the knowledge needed for a wise and effective participation in res publica. Poll taxes, on the other hand, are just revenue-raising devices, and, since they are applied equally per capita, they are removed from republican considerations of having those with the highest economic stake in society direct the political affairs of that society.

Opposition to the poll tax increased during the 1930s and President Roosevelt briefly attacked it in 1938. But FDR had to be mindful of the powerful influence of Southern Democratic barons in the Senate and the crucial role that the Southern states played in the politically dominant Democratic coalition. By the 1940s, the House of Representatives passed legislation to outlaw poll taxes but a Southern-led filibuster in the Senate killed the effort. By 1944, the Republican Party platform and President Roosevelt (though not his party’s platform) called for the tax’s abolition.

Eventually, qualms arose about using ordinary legislation to block the tax. Article I of the Constitution places principal control over voter qualification in the hands of the states. The 15th Amendment (race) and the 19th Amendment (sex) had limited the states’ discretion. To many—even opponents of the poll tax—the message from those amendments was that limitations on state power had to proceed through specific constitutional amendment. The opinions issued by the Supreme Court seemed to echo those sentiments, as the Court had accepted the predominant role of the states in that area even when it struck down the racially-discriminatory “white primaries” in the South in the 1940s and 1950s. The debate allowed Southern supporters of the poll tax to characterize the controversy as a states’ rights issue.

The effort to adopt a constitutional amendment to ban poll taxes dragged on through the 1950s into the 1960s, even as support for the tax grew weaker. Literacy tests remained widespread, even in the North. But Southern states, too, abandoned poll taxes until, in 1960, only 5 states retained them. Finally, in March, 1962, the Senate approved what would become the 24th Amendment. This time, no Southern filibuster occurred. In August of that year, the House concurred. The concerns over state sovereignty remained, in that the amendment proposed to abolish poll taxes only in federal elections, leaving states and municipalities free to continue the practice for their internal affairs.

When the amendment was sent out to the states, every state of the old Confederacy, but two, refused to participate, still portraying the matter as a states’ rights issue. The two exceptions were Mississippi, which formally rejected the amendment, and Tennessee, which approved it. Outside the South, every state adopted the amendment between November, 1962, and March, 1964, except Arizona and Wyoming.

But, as mentioned, states were still free to adopt poll taxes for local elections. This apparently was a call to action for the Supreme Court. Casting constitutional caution to the wind, the Court in Harper v. Virginia Board of Elections in 1966 struck down the Virginia poll tax for state and local elections. Creating an odd alloy of different constitutional concepts, due process and equal protection, Justice William Douglas announced for the majority that poll taxes impermissibly discriminated on the basis of wealth and/or improperly burdened a fundamental right to vote. In any event, the opinion announced, the Virginia tax violated the 14th Amendment.

The Court obviously was aware of the 24th Amendment, so recently adopted. But the learned justices must have found the effort to amend the Constitution through the proper Article V process unsatisfying. It appears that the 24th Amendment, having been limited to federal elections to avoid further intrusion into state sovereignty over voting qualifications, was not constitutionally rigorous enough. The Constitution, as it thus stood, was unconstitutional in the eyes of the Supreme Solomons. If the Court was right in Harper, members of Congress and of the state legislatures could have saved themselves much trouble and just used the 14th Amendment to declare all poll taxes unconstitutional. Congress could have accomplished the goals of the 24th Amendment, and more, just by passing a law to enforce these supposed rights protected under the 14th Amendment.

Of course, traditionally the 14th Amendment was not understood to provide direct restrictions on state control of voting qualifications. Otherwise, the 15th Amendment, as it applies to states, would have been unnecessary. The Court had used the 15th Amendment to strike down certain voting restrictions on race earlier in the 20th century, and did not even begin to take gingerly steps towards the 14th Amendment until striking down the “white primaries.”

Not much significance, other than as a symbol and a constitutional curiosity remains of Harper. The Court since then has repudiated the notion of wealth as a constitutionally “suspect” classification entitled to strict judicial scrutiny under the equal protection clause. As well, the notion of voting as a fundamental right protected under the due process clause, has had a checkered history.

Rights conceptually are “fundamental” if they do not depend on a political system for their existence; they are “pre-political” in the sense of the Anglo-American social contract construct that the Framers accepted. Freedom of speech and the right to carry arms for self-defense come to mind. Voting is an inherently political concept that does not exist outside a political commonwealth, and the scope of the voting privilege (that is the meaning of “franchise”) is, necessarily, a political accommodation. Even republics, never mind monarchies, have no uniform understanding of who may be qualified to vote. The great historical variety of arrangements of republican forms of government, and the inherently political nature of defining them, is one reason the Supreme Court has not officially involved itself in defining what is a republican form of government guaranteed under the Constitution.

A final word about the 24th Amendment: Historically, many republics, including the states in our system, required voters to meet designated property qualifications, as a reflection of having a sufficient stake in the community to vote responsibly (and to pay for the cost of government). Strictly speaking, the 24th Amendment does not forbid those. The Supreme Court has upheld property qualifications for voting for special governmental units, such as water districts. One wonders, whether the abolition of such qualifications, if they were required in all elections, would need a constitutional amendment today, or whether the Supreme Court would just wave the magic wand of the 14th Amendment, as it did in Harper.

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/.

June 4, 2012

Essay #76

 

 

/0 Comments/by

Amendment XXIV of the United States Constitution

, , , , , , , , , , ,
Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

Amendment XXIV

1:  The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any state by reason of failure to pay any poll tax or other tax.

2:  The Congress shall have power to enforce this article by appropriate legislation.

A poll tax is an ancient device to collect money. It is a tax on persons rather than property or activity. As a regressive tax from the standpoint of wealth, it is often unpopular if the amount at issue is steep. But it can also be unpopular for other reasons.

In the United States, such a capitation tax was assessed in many states on the privilege of voting. Amounts and methods varied. One of the last poll taxes of this type, that of Virginia, was just $1.50 per person at the time it was struck down by the Supreme Court in 1966. That is not more than $10.00 in current money, hardly an exorbitant price, except for the truly destitute. But the problem was more than the amount. It was the manner of administration.

The common practice was to require that the tax be paid at each election, and that a potential voter demonstrate that he had paid the tax for a specified number of previous elections. If not, those arrearages had to be paid to register to vote in the ongoing election. The effect of the tax was to hit many lower income groups, but primarily Southern blacks, whose participation in elections dropped to less than 5% during the first part of the 20th century. To be sure, that low rate of participation was not entirely due to the poll tax, but that tax was a particular manifestation of a regime of suppression of political participation by blacks.

The 15th Amendment had been adopted to prohibit overt racial discrimination in qualifying to vote. However, the poll tax and other restrictive measures, such as literacy tests, were not, strictly speaking, race-based, so they did not come within the 15th Amendment. A different solution was needed, according to those who saw the poll tax as intolerable. Literacy tests, if fairly administered (though often they were not), had a clear connection to the responsible exercise of the voting franchise that poll taxes lacked. After all, especially in those years before the electronic media, having a literate electorate was a significant community interest. Republican theory has traditionally looked to having those with the most interest and highest stake take the leading role in the community. Literacy provided a foundation to acquire the knowledge needed for a wise and effective participation in res publica. Poll taxes, on the other hand, are just revenue-raising devices, and, since they are applied equally per capita, they are removed from republican considerations of having those with the highest economic stake in society direct the political affairs of that society.

Opposition to the poll tax increased during the 1930s and President Roosevelt briefly attacked it in 1938. But FDR had to be mindful of the powerful influence of Southern Democratic barons in the Senate and the crucial role that the Southern states played in the politically dominant Democratic coalition. By the 1940s, the House of Representatives passed legislation to outlaw poll taxes but a Southern-led filibuster in the Senate killed the effort. By 1944, the Republican Party platform and President Roosevelt (though not his party’s platform) called for the tax’s abolition.

Eventually, qualms arose about using ordinary legislation to block the tax. Article I of the Constitution places principal control over voter qualification in the hands of the states. The 15th Amendment (race) and the 19th Amendment (sex) had limited the states’ discretion. To many—even opponents of the poll tax—the message from those amendments was that limitations on state power had to proceed through specific constitutional amendment. The opinions issued by the Supreme Court seemed to echo those sentiments, as the Court had accepted the predominant role of the states in that area even when it struck down the racially-discriminatory “white primaries” in the South in the 1940s and 1950s. The debate allowed Southern supporters of the poll tax to characterize the controversy as a states’ rights issue.

The effort to adopt a constitutional amendment to ban poll taxes dragged on through the 1950s into the 1960s, even as support for the tax grew weaker. Literacy tests remained widespread, even in the North. But Southern states, too, abandoned poll taxes until, in 1960, only 5 states retained them. Finally, in March, 1962, the Senate approved what would become the 24th Amendment. This time, no Southern filibuster occurred. In August of that year, the House concurred. The concerns over state sovereignty remained, in that the amendment proposed to abolish poll taxes only in federal elections, leaving states and municipalities free to continue the practice for their internal affairs.

When the amendment was sent out to the states, every state of the old Confederacy, but two, refused to participate, still portraying the matter as a states’ rights issue. The two exceptions were Mississippi, which formally rejected the amendment, and Tennessee, which approved it. Outside the South, every state adopted the amendment between November, 1962, and March, 1964, except Arizona and Wyoming.

But, as mentioned, states were still free to adopt poll taxes for local elections. This apparently was a call to action for the Supreme Court. Casting constitutional caution to the wind, the Court in Harper v. Virginia Board of Elections in 1966 struck down the Virginia poll tax for state and local elections. Creating an odd alloy of different constitutional concepts, due process and equal protection, Justice William Douglas announced for the majority that poll taxes impermissibly discriminated on the basis of wealth and/or improperly burdened a fundamental right to vote. In any event, the opinion announced, the Virginia tax violated the 14th Amendment.

The Court obviously was aware of the 24th Amendment, so recently adopted. But the learned justices must have found the effort to amend the Constitution through the proper Article V process unsatisfying. It appears that the 24th Amendment, having been limited to federal elections to avoid further intrusion into state sovereignty over voting qualifications, was not constitutionally rigorous enough. The Constitution, as it thus stood, was unconstitutional in the eyes of the Supreme Solomons. If the Court was right in Harper, members of Congress and of the state legislatures could have saved themselves much trouble and just used the 14th Amendment to declare all poll taxes unconstitutional. Congress could have accomplished the goals of the 24th Amendment, and more, just by passing a law to enforce these supposed rights protected under the 14th Amendment.

Of course, traditionally the 14th Amendment was not understood to provide direct restrictions on state control of voting qualifications. Otherwise, the 15th Amendment, as it applies to states, would have been unnecessary. The Court had used the 15th Amendment to strike down certain voting restrictions on race earlier in the 20th century, and did not even begin to take gingerly steps towards the 14th Amendment until striking down the “white primaries.”

Not much significance, other than as a symbol and a constitutional curiosity remains of Harper. The Court since then has repudiated the notion of wealth as a constitutionally “suspect” classification entitled to strict judicial scrutiny under the equal protection clause. As well, the notion of voting as a fundamental right protected under the due process clause, has had a checkered history.

Rights conceptually are “fundamental” if they do not depend on a political system for their existence; they are “pre-political” in the sense of the Anglo-American social contract construct that the Framers accepted. Freedom of speech and the right to carry arms for self-defense come to mind. Voting is an inherently political concept that does not exist outside a political commonwealth, and the scope of the voting privilege (that is the meaning of “franchise”) is, necessarily, a political accommodation. Even republics, never mind monarchies, have no uniform understanding of who may be qualified to vote. The great historical variety of arrangements of republican forms of government, and the inherently political nature of defining them, is one reason the Supreme Court has not officially involved itself in defining what is a republican form of government guaranteed under the Constitution.

A final word about the 24th Amendment: Historically, many republics, including the states in our system, required voters to meet designated property qualifications, as a reflection of having a sufficient stake in the community to vote responsibly (and to pay for the cost of government). Strictly speaking, the 24th Amendment does not forbid those. The Supreme Court has upheld property qualifications for voting for special governmental units, such as water districts. One wonders, whether the abolition of such qualifications, if they were required in all elections, would need a constitutional amendment today, or whether the Supreme Court would just wave the magic wand of the 14th Amendment, as it did in Harper.

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/.

/0 Comments/by

Article II, Section 4 of the United States Constitution

, , , , , , , ,
Guest Essayist: Julia Shaw, Research Associate and Program Manager of the B. Kenneth Simon Center for American Studies, The Heritage Foundation

Article II, Section 4

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

Impeachment is the only constitutional way to remove a President (or another official or a judge) for misconduct. Publius notes in Federalist 64 that the “fear of punishment and disgrace” will encourage good behavior in the executive. Impeachment is an integral part of maintaining the separation of powers and the republican form of government.

To understand the impeachment process, we must look to the related clauses in Article I. Unlike the Rules and Expulsion Clause, by which the house to which a Member of Congress belongs may expel that member, the legislature and the judiciary participate in the impeachment of a president. A vote for impeachment is not equivalent to a vote for immediate removal. Impeachment refers to the House’s vote to bring charges against an officer, and that vote begins a particular process. After the House impeaches a president, the Senate tries him with the Chief Justice presiding over the proceedings. In Federalist 65, Publius notes that the Senate would have the requisite independence needed to try impeachments: “What other body would be likely to feel confidence enough in its own situation to preserve, unawed and uninfluenced, the necessary impartiality between an individual accused and the representatives of the people, his accusers?” The supermajority requirement guards against impeachments brought by the House for purely political reasons. The president may not pardon a person who has been impeached.

Impeachment disciplines a President who abused his constitutional responsibilities. As Stephen Presser suggests in his essay on Article I, Section 2, Clause 5 in the Heritage Guide to the Constitution, when the President commits an impeachable offense, the Members of the House are obligated by their oath to preserve the Constitution to deal with the offense. But, what constitutes an impeachable offense? At the Constitutional Convention, the delegates initially proposed “mal-practice and neglect of duty” as grounds for impeachment, but the Committee of Detail narrowed the basis to treason, bribery, and corruption. George Mason suggested “high Crimes and Misdemeanors” as another grounds for impeachment when his previous suggestion of “maladministration” was rejected for rendering the President’s too dependent upon Congress. Impeachment was meant to encompass serious offenses, but not to be a political tool to block a president from exercising his authority.

Impeachment is a remedy to be used in extreme situations, and Congress has used this device sparingly over the past two hundred twenty years. Only two Presidents have been impeached (Richard Nixon resigned before the House voted to impeach), and only a handful of judges have been impeached and subsequently removed from office. No president has been successfully removed from office.

In Federalist 77, Publius explains that “being at all times liable to impeachment” would prevent the president from abusing his power. Impeachment is not equivalent to a simple majority vote of no confidence, as is sufficient to remove a prime minister in parliamentary system. Rather, it is a process that engages the legislature and the judiciary in a grave constitutional act to remove the head of state. Perhaps it is so rarely used, and so rarely needed, because the stakes are so high.

Julia Shaw is the Research Associate and Program Manager of the B. Kenneth Simon Center for American Studies at the Heritage Foundation.

/0 Comments/by

Article II, Section 3, Clause 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

Article II, Section 3, Clause 1

He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with respect to the Time of Adjournment, he may adjourn them to such Time as he think proper; he shall receive Ambassadors and other public Ministers; he shall take care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

“Power tends to corrupt, and absolute power corrupts absolutely. Great men are almost always bad men.” Lord Acton, 1887

Mitch Ohnstad (reporter): “Why do you rob banks, Willie?”
Willie Sutton (bank robber): “Because that’s where the money is.”

In Worcester v. Georgia (1832) The United States Supreme Court vacated the conviction of Samuel Worcester, holding that the Georgia statute prohibiting non-Indians from being present on Indian lands without a license from the state was unconstitutional:
Response of President Andrew Jackson: “John Marshall has made his decision; now let him enforce it!”

The above quotations constitute the texts for today’s essay. Readers will understand their relevance for a new century in which the United States President exercises unprecedented personal power, controls unprecedented national wealth and bestrides the separation of powers like a mighty colossus. Such a situation, unconceivable to the Founding Fathers in 1787, places the seemingly innocuous words that I here address into a significantly more worrying perspective.

So let me begin with state of the union addresses. The Founders naturally were concerned to protect the United States from the abuses associated with European monarchs, most especially, of course, King George III. One perceived abuse was the British monarch’s ritual of addressing the opening of each new Parliament with a list of policy ‘mandates’ rather than ‘recommendations. So the word ‘recommendations’ is truly significant as written into the Constitution, as are the words ‘from time to time’. Both insertions are designed to downplay the importance of the occasion.

The first president, George Washington, defined the meaning of ‘from time to time’. Since 1790, the state of the union message has been delivered regularly at an approximately one year interval. Whether such messages would be delivered orally or in writing, however, would depend, until FDR, on each president’s perceived role. The Federalists, Washington and Adams, personally addressed the Congress. The Republican, Jefferson strongly objected to this ritual and initiated the written address. This was continued until 1913 when America’s first Imperial President, Woodrow Wilson, reverted to the oral address, an approach followed by Harding and by Coolidge in his first address. Thereafter Coolidge and Hoover, as strict constructionists, reverted to the written model.

From FDR onwards, U.S. presidents have strutted across the stage making expansive oral addresses designed to project an image of presidential authority across an increasingly credulous national audience. Fortunately, the United States Congress has not (yet) abandoned its legislative authority. Many a presidential state of the union aspiration turns out to be dead-on-arrival once it enters the doors of the Capitol.

Section 3, Clause 1 – which imposes a duty rather than confers a power – is the formal basis of the President’s legislative leadership, which has attained enormous proportions since 1900. This development owes a lot to the rise of political parties, and to an accompanying recognition of the President as party leader, and to the introduction of the spoils system as a means of exerting presidential influence over Congress. Presidents frequently summon both Houses of Congress into special sessions for legislative purposes, and the Senate alone, for consideration of nominations and treatises. The power to adjourn the Houses has never been exercised.

The ‘right of reception’ has been interpreted to reinforce presidential authority most especially in the area of foreign affairs. The term ‘Ambassadors and other public ministers’ embraces not only any possible diplomatic agent that any foreign power may accredit to the United States, but also all foreign consular agents, who, therefore, may not exercise their functions in the United States without an exequatur from the President. The power to receive includes the right not to receive, to request their recall, to dismiss them and to determine their eligibility. These powers have the unfortunate consequence of making the President the predominant mouthpiece of the nation in its dealings with other nations, surely not something that the Founders (Hamilton was an exception) ever anticipated.

The President must ‘take care that the laws be faithfully executed.’ This duty has been used as an ‘open sesame’ opportunity for unscrupulous presidents to transgress the separation of powers. Some presidents have claimed an authority under this provision to impound monies appropriated by Congress. President Jefferson, for example, delayed for over a year the expenditure of monies appropriated for the purchase of U.S. gunboats. FDR and several of his successors from time to time refused outright to expend appropriated monies. In response to such an attempt by President Nixon, the United States Supreme Court finally ruled that such attempts are unconstitutional.

Presidents have also asserted, from time to time, that ‘faithful execution of the laws’ empowers them to suspend the writ of habeas corpus – that most precious legal protection of individual liberty against the state. Article I provides that this privilege may not be suspended except during times of rebellion or invasion. The Supreme Court has determined that such suspensions fall within the jurisdiction of Congress. Yet President Lincoln regularly suspended the privilege during the civil war, albeit eventually and reluctantly succumbing to union-opposition pressures to seek congressional approval.

The Supreme Court subsequently would specifically weaken its own supervisory role in this regard. In Mississippi v Johnson 1867, the Supreme Court ruled that the judiciary may not restrain the President in the execution of laws. In so doing, the Court denied an injunction preventing President Andrew Johnson from executing the Reconstruction Acts, which were claimed to be unconstitutional. Executive acts, when performed, remain subject to judicial scrutiny.

The President’s right to commission ‘all the Officers of the United States’ is also open to serious abuse by unscrupulous incumbents. One of the most famous legal cases in early United States history was induced by such abusive behavior. John Adams, the outgoing Federalist President signed many commissions to the judiciary on his final day in office, hoping as incoming Republican President Thomas Jefferson put it ‘to retire into the judiciary as a stronghold.’ Fortunately, in his haste to complete the coup d’etat, Adams neglected to have all the commissions delivered. President Jefferson and his Secretary of State, James Madison – who knew more than a little about the nature of the Constitution – refused to deliver the remaining commissions.

William Marbury had been appointed by Adams as Justice of the Peace in the District of Columbia; but his commission had not been delivered. So, Marbury petitioned the Supreme Court to force Secretary of State Madison to deliver the documents. However, in its famous 1803 Marbury v Madison judgment, the Supreme Court, with John Marshall as Chief Justice, denied Marbury’s petition, holding that the part of the statute upon which he based his claim – the Judiciary Act of 1789 – was unconstitutional.

It is good to end this essay with an early example where a serious abuse of presidential discretion was reined in. Unfortunately, this would be a rare victory in the battle to constrain America’s increasingly imperial presidency, as the executive branch fairly systematically elbowed its way through the separation of powers in order to impose its own brand of absolutism on the American Republic.

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). All books are available at www.amazon.com. See also www.thelockeinstitute.org and www.charlesrowley.wordpress.com.

/0 Comments/by

May 4, 2010 – Federalist No. 5 – Janine Turner

, , , , , , ,

Tuesday, May 4th, 2010

Howdy from Texas. What a great conversation today. I have to tell you guys, or y’all, I am really learning from not only our guest scholars, but from you who blog. Today was a most thought provoking dialogue. I thank you for joining us and for spreading the word about our “90 in 90.” A great civic discussion, based on the founding principles of our country, is just what our country needs.

I thank Horace Cooper for his wonderful essay today. Thanks Horace!

I related to what Tricia said in her blog today regarding the fact that a union gives us the ability to disagree yet to unite in times of trouble. An analogy would be a family. Families may bicker but – watch out – because they will defend each other when one is confronted or in danger.

In relation to the founding era and Federalist No. 5, there was still so much to be imagined, discovered and resolved. There was an abundance of mystery in America. This is one of the brilliant aspects of Publius – they had such foresight, almost prophetic. They knew there were differences amongst the peoples of America, with a vast portion of America yet to be discovered and claimed, but they also new that it was better to be with each other rather than against one another; to be governed by a unified vision.

As our two hundred thirty -four years have evolved, it has become apparent that our differences did drive stakes into our passions but they did not dismember us. If we had not found stability as a burgeoning union then we would never have been able to survive the challenges that were to be wrought by the civil war and the great depression.. to name a few.

So what is the relevancy of Federalist No. 5 today? It is in defining the boundaries between the federal government and the states in the twenty first century. It is in the understanding of how much power our founding fathers really intended the federal government to have. It is in the reckoning and reconciling of the autonomy the states were intended to have and should have today. The answers to these questions are complex, especially because it is inordinately hard to rein back leniencies that have already been dispersed. Once one foot is in the door, it is very hard to close it again.  Has the federal government planted its boots upon our thresholds too boldly?

I dare say many of us would answer yes. I dare say many of us agree with Arizona in regard to the fact that she has the right to make her own laws, yet look at how her autonomy is disrupting the union. Is this not exactly what Publius was predicting? However, today, is the fault with the state or with the Federal government who failed to protect her and her people?  Or is it the state’s right to defend herself? Is this not addressed in the Constitution in Article I Section 8.16?  I, personally, would like to hear some thoughts from our scholars as to what exactly Article 1 Section 8.16 means in relation to Arizona.

It is only in the educating of America about the United States Constitution that these questions may be answered. Knowledge is power. We cannot appreciate what has been taken away if we have never known what was rightfully ours in the first place.

The monarchies of Europe didn’t want their “people” educated. An educated people meant that they would be able to see the truths. These truths are self-evident: If we don’t utilize our educated voice someone else will speak for us. And all of our rights will be lost.

God bless,

Oh, we have fixed it so all of the comments will be in the same place.. so please comment in the main essay’s comment box  (the guest scholar of the day’s  essay) from now on.. )

Janine Turner

 

/0 Comments/by

May 12, 2010 – Federalist No. 11 – Cathy Gillespie

, , , , , , ,

Thursday, May 13th, 2010

You all are kicking up some dust in the comments today! I love the back and forth.

And thank you to Dr. Postell for your essay! We appreciate your participation and guidance.

Thank you also to Constituting America’s founder and co-chair Janine Turner for her brilliant essay, published early today!  I am burning the midnight oil.

I begin tonight with these sentences, the first sentences of Federalist No. 11:

“THE importance of the Union, in a commercial light, is one of those points about which there is least room to entertain a difference of opinion, and which has, in fact, commanded the most general assent of men who have any acquaintance with the subject. This applies as well to our intercourse with foreign countries as with each other.”

The above quote reflects another area in which the founding fathers showed great insight, wisdom and vision.  Today, African countries are suffering economically from the tariffs and entry fees they impose on each other.  European countries suffered as well.  Only recently have they unified economically, learning from our example. And some see a political unification of Europe as a likely next step.  The founders saw the necessity of economic unity, and acted on it, over 200 years before Europe came to the same conclusion.

It is fascinating to me that in the early stages of our country, the founders could so clearly discern “the adventurous spirit, which distinguishes the commercial character of America,” and recognize that  “the unequaled spirit of enterprise…..is itself an inexhaustible mine of national wealth.”

The power of Congress “to regulate commerce with foreign Nations, and among the several States, and with the Indian Tribes,” found in Article 1, Section 8 of the Constitution, certainly propelled our country to its preeminent world economic leadership position.  The Commerce Clause allows the United States to present a unified economic front to the world, and for individual states to not penalize each other.   But the Commerce Clause has been a double edged sword.  When utilized to keep markets free and unfettered, it allows our Nation to soar, tapping into that uniquely American “unequaled spirit of enterprise.”  But when the Commerce Clause is utilized to regulate and stifle the spirit of enterprise, it can “clip the wings by which we might soar.”

The current health care reform legislation stretches the Commerce Clause further than it has ever been stretched before.  Instead of regulating economic activity between the states, Congress is using its power to mandate that people pro-actively make purchases from private sector companies. I wonder what Mr. Hamilton would think of the federal government’s intervention into that type of “commercial relations.”

Tim W. said it especially well in his post today, “It was refreshing to see Hamilton cast commerce as a virtue, rather than the vice portrayed by some in power and in the larger information media.”  The founders recognized that the most valuable natural resource of the United States is its people ,their “adventurous spirt,” and “unequaled spirit of enterprise.”

Thank you to all of you who are joining us in shining a light on the founding principles of our country, so that they may once again be our guide.  Please continue to spread the word, and invite your friends to read and blog with us.

On to Federalist No. 12!

Good night and God Bless,

Cathy Gillespie

 

/0 Comments/by

Federalist No. 12 – Cathy Gillespie

, , , , , , , , ,

Friday, May 14th, 2010

Federalist Number 12

Thank you to Dr. Paul Teller for your insightful post today, and to Dr. Joe Postell for your enlightening post yesterday! We are blessed to have Constitutional scholars such as yourselves helping us on our journey through the Federalist Papers!  And thank you to everyone who continues to comment, and share your thoughts!  I am learning so much from each of you.

“The assiduous merchant, the laborious husbandman, the active mechanic, and the industrious manufacturer,–all orders of men, look forward with eager expectation and growing alacrity to this pleasing reward of their toils.”

Taxes. No one like them.  Since biblical times the tax collector has been seen as one of the most despised members of society.

Taxes sparked the American Revolution.  It is in our heritage to resent taxes, especially when we feel we have little or no say in how the money is being spent!

Yet, Alexander Hamilton, in Federalist No. 12 makes an argument we may not like to hear – taxes are necessary.  We must find ways to fund the government :

“A nation cannot long exist without revenues. Destitute of this essential support, it must resign its independence, and sink into the degraded condition of a province. This is an extremity to which no government will of choice accede. Revenue, therefore, must be had at all events.”

The question is how.

It is fascinating to observe the progression of taxation in our country.  From the Article I, Section 8 of the United States Constitution:

The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;

To a federal tax code that is over 7,000,000 words long (thank you to my friend Steve Moore for this fact, cited in a great piece he did for National Review http://article.nationalreview.com/268573/our-income-tax-monstrosity/stephen-moore)

What happened?

In federalist No. 12 Hamilton advocates consumption taxes because they are more fair, people will tolerate them better, and they are easier to collect.   There were no assured means of assessing personal property ownership or personal income during this period in our country, and as Hamilton wrote, “because personal assets are difficult to trace, large tax contributions can only be achieved through consumption taxes.”

In three years we will “celebrate” the 100th anniversary of the income tax, the ratification of the 16th Amendment to the United States Constitution.  It is hard to believe that this complicated, lengthy tax code has been in existence for less than 100 years.  The explosion of this code in such a short time shows the tendency of government to grow and intrude into our life and liberty, unless we vigilantly keep it at bay, guarding the boundaries of our freedom.

It was eye opening to read Federalist No. 12, and see that in the early days of the Republic, an income tax was the furthest thing from the founders’ minds.   These were men of great vision, and this is one more area where their foresight shines.

If only we had listened to them more closely!

Good night and God Bless!

Cathy Gillespie

 

/0 Comments/by

Federalist No. 48 – These Departments Should Not Be So Far Separated as to Have No Constitutional Control Over Each Other, From the New York Packet (Madison)

, , , , , , , ,
Guest Essayist: John S. Baker, Jr. the Dale E. Bennett Professor of Law at Louisiana State University

The states had strict separation of powers in theory, but a dangerous mixture of powers in practice. Taking the opposite approach, Publius undertook “to show, that unless these departments be so far connected and blended, as to give each a constitutional control over the others, the degree of separation which the maxim requires as essential to a free government, can never in practice be duly maintained.”  Theory guided writing of the Constitution; but the text itself is a practical — not a theoretical — document.  As  Federalist #48 states, “After discriminating, therefore, in theory, the several classes of power, as they may be in their nature be legislative, executive, or judiciary; the next, and most difficult task, is to provided some practical security for each, against the invasion of the others.”

The Constitution does not even mention the term “separation of powers.” Rather, the constitutional text formally establishes separation of powers by setting out the powers of each branch in a separate article: Article I (“All legislative Powers herein granted shall be vested in a Congress”); Article II (“The executive Power shall be vested in a President”); and Article III ( “The judicial Power of the United States, shall be vested in one supreme Court and such inferior Courts as Congress may from time to time ordain and establish.”).  Omitting the term “separation of powers,” into which different persons — especially lawyers — might pour their own meanings, the Constitution instead implants into the text the elements of separation of powers necessary to make it operate in practice, e.g. the President’s qualified veto power.

Rather than “the parchment barriers” on which the state constitutions “principally relied,” the Framers consulted experience and concluded “that some more adequate defence is indispensably necessary for the more feeble, against the more powerful members of the government.”  In other words, because the three branches are not naturally equal, simply separating them will not protect the weaker branches.           Experience has shown that the legislative branch will dominate the other two. According to Publius, “The legislative department is every where extending the sphere of its activity, and drawing all power into its impetuous vortex.” It may seem surprising to many Americans that the Framers considered the legislative branch to be the most dangerous. Such an attitude is nothing new because it was prevalent at the time of the Constitution’s adoption. As Publius observed, “founders of our republics,,,,seem never to have recollected the danger from legislative usurpations, which, by assembling all power in the same hands, must lead to the same tyranny as is threatened by executive usurpations.”

Then and today, there are those who view the President as the greatest danger to liberty.  “But in a representative republic,” Publius writes, “the executive magistracy is carefully limited, both in the extent and duration of its power.” Compared to Congress, the President may appear to be more powerful due to the unitary character of the Presidency.  Later, in Federalist 70, 73, and 74, Publius explains the unitary executive as a protection of the liberty, particularly in time of war.

Publius tells us “where the legislative power is exercised by an assembly, which is inspired by a supposed influence over the people, with an intrepid confidence in its own strength; which is sufficiently numerous to feel all the passions which actuate a multitude; yet not so numerous as to be incapable of pursuing the objects of its passions, by means which reason prescribes; it is against the enterprising ambition of this department, that the people ought to indulge all their jeolousy, and exhaust all their precaustions.. (emphasis added).

If today the President seems to have more power than the Constitution, it can only be because the Congress has delegated that power and, in most instances, the Supreme Court has upheld those delegations. Since the 1930’s, the three branches of the federal government have generally cooperated in building “the Administrative State,” dominated by bureaucratic agencies.  While apparently building the President’s power, however, the Congress has 1) avoided accountability and 2) disguised in its de facto influence over executive agencies. Driving this consolidation of power is an opposition to separation of powers.

The Administrative State incorporates certain “checks and balances,” which as discussed in the last essay differs from separation of powers.  Federalist #9, which refers to “legislative balances and checks,” indicates that the term “checks and balances” has a different historical meaning.  The Constitution’s version of separation of powers does include a checking function of each branch on the other. Federalist 48 explains the concern to give checking powers to the weaker branches, i.e., the President and the Judiciary.  The Administrative State has grown because the Supreme Court has approved legislation giving Congress additional checking powers against the President, thereby weakening the Executive Branch. Congress, for example, has created so-called “independent agencies,” which are independent of the President’s control, but under the de facto control of Congress’s power over agency budgets.

Congress’s enhancement of its own powers through the Administrative State confirms the observations in Federalist 48 about the deviousness of legislative bodies. “The legislative department derives a superiority in our governments [because] [i]ts constitutional powers being at once more extensive, and less susceptible of precise limits, it can, with the greater facility, mask under complicated and indirect measures, the encroachments which it makes on the co-ordinate departments.” (emphasis added).

Publius’s indictment of legislative bodies drew “on our own experience.”  The Virginia constitution, for example, required separation of powers; but as Jefferson wrote in his “Notes on the state of Virginia,” quoted by Federalist 48, “no barrier was provided between these several powers.” Publius approved Jefferson’s remark that “An elective despotism was not the government we fought for.”

Federalist 48 concluded “that 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.”

Friday, July 2nd, 2010

John S. Baker, Jr. is the Dale E. Bennett Professor of Law at Louisiana State University.

 

/0 Comments/by

Federalist No. 69

, , , , , , , , , , , , , ,
The Powers of the President, From the New York Packet (Hamilton) – Guest Blogger: Joerg Knipprath, Professor of Law at Southwestern Law School

In Federalist 69, Hamilton responds to the charge by the Constitution’s opponents that the president is an American king. He compares the powers of the “president of confederated America” (interesting phrasing) under the Constitution with those of the king of Great Britain and the governor of New York. He chooses the latter for several reasons. First, the essays of Publius are written during the pendency of the New York and Virginia ratifying conventions and were obviously intended in the first instance to influence those closely-fought skirmishes.

Second, Hamilton was deeply involved in state politics as a member of the downstate faction that favored both the Constitution and, later, the Federalist Party. Though it is hard to believe today, New York City politically was, in many ways, a Tory town. It was a hotbed of Loyalist sentiment during the Revolutionary War, so much so that the British made it their headquarters. Hamilton was intimately familiar with the operation of his state’s government and, given the emerging significance of the city and state, would  find New York’s system more important than others’.

Third, the governor of New York was a rather strong chief executive compared to the state governors at the time. Comparing the president’s powers favorably to those of a republican American state executive would resonate particularly well with the persuadable delegates by avoiding charges that comparing the prerogatives of the president to those of the British monarch was irrelevant to the cause, as no American king was to be crowned.

But there is one more reason. The governor of New York, George Clinton, was the presiding officer at the convention and a staunch Antifederalist. He was also a member of the upstate Albany faction politically opposed to Hamilton. Clinton is the likely author of potent attacks on the Constitution in  “Letters of Cato.” Many historians believe that it was the publication of some of those letters that induced the Constitution’s supporters to organize the effort that became The Federalist. The executive was one of Cato’s particular concerns. In an essay published four months before Federalist 69, Cato labeled the president the “generalissimo of the nation,” assailed the scope of the president’s powers, compared those powers alarmingly with those of the king of Great Britain (especially the war power), and warned, “You must, however, my countrymen, beware that the advocates of this new system do not deceive you by a fallacious resemblance between it and your own state government [New York]….If you examine, you…will be convinced that this government is no more like a true picture of your own than an Angel of Darkness resembles an Angel of Light.” Hamilton had no choice but to respond.

The result is a brief comparative overview, the particulars of which do not matter much today, as the king’s prerogatives, already circumscribed then, are virtually non-existent now. The essay does provide an introduction to various powers of the president, most of which are in Article II of the Constitution. Hamilton will delve into greater detail of various of them over the course of Federalist 73 to 77.

The Framers saw Congress as the most dangerous branch, and the one most likely to encroach on the domain of the others. While there were dangers in an independent and powerful executive, the lessons from the Revolutionary War and life under the Articles showed the need for just such an officer. The turbulence of state governments with weak and dependent executives only proved the point. Most agreed that a strong, independent executive was needed. But, how strong?
What is significant for us is the dog that does not bark, the constitutional clauses that are not mentioned by Publius. Not long after the Constitution was approved, Hamilton used the occasion of Washington’s Neutrality Proclamation in 1793 to advance a broad theory of implied executive powers. His position, vigorously challenged by Madison during the Pacificus-Helvidius debates, was that the president has all powers that are not denied to him under the Constitution either expressly or by unambiguous grant to another branch. That approach has been used by subsequent presidents to fuel the expansion of executive power.

Article II is rather short, and the president’s powers few and specific. Beyond that, the boundaries are vague. It was broadly understood that George Washington would be the first president. The general recognition of his propriety and incorruptibility meant that he would have discretion to define the boundaries of the office. Indeed, Washington was expected to do so, and he was well aware of that responsibility. In addition to the oath of office, there are three clauses whose text suggests room for discretion. Those three, the executive power clause, the commander-in-chief clause, and the clause that the president “shall take Care that the Laws be faithfully executed,” have proved to be generous reservoirs of necessary implied executive powers.

Publius spends little time on the commander-in-chief clause, and essentially none on the others. He portrays the role of the president as if he would be confined to leading the troops in military engagements. While Washington, with Hamilton as his aide, actually dressed in military regalia and mounted up to lead troops during the Whiskey Rebellion, they soon delegated that project to General “Light Horse Harry” Lee. That is the least likely role of the president today. Indeed, even during the ratification debates, that was a questionable view not usually advocated, as it frightened republicans by blurring the line between civilian control and military command and was thought likely to lead to the election of “military chieftains.”

The executive power clause is the principal source for the president’s implied or inherent powers, those that the president’s detractors would disparagingly call royal or prerogative powers. The textual significance is that, while Article I says that, “All legislative powers herein granted shall be vested in a Congress …,” Article II declares that, “The executive power shall be vested in a President …”[italics added]. That affirmative grant to the president has to mean something, and –unlike Article I regarding Congress–it has to mean more than the powers mentioned later in the text. The question ever since has been, “Just what does it mean?” Presidents have massaged that ambiguity and the flexibility of the other elastic clauses mentioned to act unilaterally, as necessity demands, usually in military affairs, foreign relations, and national security matters. Executive unilateralism came under particular scrutiny by Congress, the courts, the academy, and the media during the Bush(43) administration, though interest in that topic has slackened since the election of 2008–perhaps not coincidentally.

Not surprisingly, as advocate for the Constitution’s adoption, Hamilton does not spend time defending, or even recognizing, the theory of implied executive powers that he embraced soon thereafter. The enumeration of specific limited presidential powers and Hamilton’s soothing interpretations in Federalist 69 do not give due credit to the possible sweep of the executive office. His next essay presents a more forthright defense of the need for an energetic executive.

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.  Prof. Knipprath has also spoken on business law and contemporary constitutional issues before professional and community forums.  His website is http://www.tokenconservative.com

 

/1 Comment/by

Articles IV – VII of the U.S. Constitution

, , , , , , , , , , , , ,
Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

Articles IV through VII of the Constitution are, even for many educated Americans, terra incognita. People may know about the first three articles, important as they are in defining the separation of powers at the national level among the three branches and in drawing basic divisions between the national government and the states. Despite their brevity, these often-overlooked articles play significant roles.

When the Constitution was adopted, the framers hoped, as the Preamble declares, to form a “more perfect Union.”  They recognized (in part out of political calculation) that a union already existed under the Articles of Confederation. They wanted to tweak the system enough to place it on a sounder political and economic footing. Part of their plan was to give more independence to a revamped United States government, as the first three Articles demonstrate. But, given the size of the republic and the dispersion of its population, the national government was expected to remain a comparatively restrained political player. While the suspicion over “consolidation” was often in the open, the enumeration of formally limited powers and the practice of a part-time Congress were evidence of the expected state of affairs.

Quite naturally, then, much was left to the constitutional domain and the political discretion of the states. Inter-state collaboration and cooperation were practical necessities. Half of Article IV deals with that fact of political life. The “full faith and credit” clause of Section 1 and the “privileges and immunities,” “extradition,” and (now superseded) “fugitive slave” clauses of Section 2 are testaments to the Framers’ concerns about potential interstate frictions that might undermine union. All but the last were also in the Articles of Confederation, and the same continue to be significant today.

One area of potential constitutional conflict in the future is whether or not a state that does not recognize same-sex marriage is constitutionally obligated to give full faith and credit to a same-sex marriage granted in another state. Currently, the federal Defense of Marriage Act protects non-recognition of a same-sex marriage granted in another state. But that law itself may be unconstitutional under Article IV. It’s a close case, though there is some judicial precedent for the position that a state need not recognize an act of a sister state that is repugnant to its own public policy.

The other half of Article IV deals with obligations of the federal government to the states. In little more than 100 words, Section 3 sets forth Congress’s powers to create new states and to dispose of territory and property of the United States. That section was the source of critical federal policies during the great westward push under Manifest Destiny through which unorganized territory became organized and, eventually, advanced to statehood.

Section 4 obligates the United States to guarantee to each state a republican form of government, to protect each state against invasion, and to render assistance against domestic violence if asked. The state of Arizona may well ask whether the federal government has breached that second obligation in failing to protect the border against armed marauders, thereby necessitating the state to take stronger actions against illegal aliens. The last part of Section 4 is one explanation for why the federal military response to Hurricane Katrina was so “late.” The federal government was constitutionally obligated to wait for a request from the governor for assistance, a request slow in coming.

Article V may be the most important part of the Constitution, as it provides the formal means of amendment. This was an area of laborious compromise and reflects a combination of experience with the Articles of Confederation and the various state constitutions, and the development of American constitutional theories of popular sovereignty that broke with English constitutionalism.

There are two methods of proposing amendments and two methods for ratification. The method used for all amendments to the Constitution, though not for the drafting of the Constitution itself, is to have a vote by 2/3 of each house of Congress. Though the matter is constitutionally not free from doubt, by long-accepted practice, the president’s signature is not needed. Many framers feared, however, that the Congress would not advance amendments that might curtail federal power. Hence an alternative permits 2/3 of the states to petition Congress for a convention to propose amendments. Though this method has not been used, some proposals have come close. There are almost the needed number of states for a balanced-budget amendment, a matter that is taking on added urgency in view of trillion dollar deficits.

If an amendment is proposed, 3/4 of the states must approve, either by legislatures (a “republican” principle) or state conventions (a “quasi-democratic” principle), as Congress directs. All but the amendment to repeal prohibition have gone the legislative route. These supermajority requirements were a compromise between the English constitutional theory (also used in early state constitutions) that allowed constitutional change by simple majority vote of the legislature and the unanimity requirement for constitutional change under the Articles of Confederation. The Constitution, the Framers concluded, must be amendable, but not so freely as to promote instability. Note, though, that the Constitution does not have the “democratic” option of amendment by petition or vote of the people directly, as many states have.

Article VI contains a pillar of our federal structure, the “supremacy clause.” That clause makes the federal Constitution, treaties, and statutes superior to conflicting state laws. The clause is an enhanced version of a blander clause in the Articles of Confederation. It enshrines a principle central to the revised structure of the Constitution, that of a sovereign United States independent of, and—within its delegated functions—superior to, the states. From a political perspective, it is not an overstatement to say that, for better or worse, this is the most significant provision in the development of the current (im)balance that exists between the national government and the states.

Equally important, Article VI expressly binds the state courts to abide by the federal supreme law when there exists a conflict with state law. That provision recognizes that, since the Supreme Court is the only constitutionally required federal tribunal, state courts might operate as inferior federal courts. It also creates a judicial “branch” that straddles the divide between federal sovereignty and state sovereignty more than the political branches do.

Article VII provides for the process of ratification. There are many fascinating historical undercurrents at work in the Article. First, it encapsulates the revolutionary nature of the process that led to the Constitution. It must be recalled that the Articles of Confederation required that the Congress approve any amendment, which then also had to be approved by the legislature of each state. Also, the charge from the Confederation Congress to the Convention was “for the sole and express purpose” of reporting to Congress and the states proposed revisions that still had to be approved by Congress and the states, all in conformance with the existing structure.

The Framers, however, created a completely new structure to replace the Articles. In Article VII, they made it sufficient for initial ratification that only nine states approve. In the resolution to send a courtesy copy to the Confederation Congress, the Philadelphia Convention very pointedly required approval by the states but not the Congress. Moreover, the approval was to be by conventions in the states, not by the legislatures.

The non-unanimity requirement is significant because the Framers faced a practical problem. Rhode Island was so opposed to the project that they had not even sent delegates. They were, therefore, hardly likely to approve. Rhode Island’s non-attendance, by the way, is one reason why the Committee of Style changed the Preamble of the Constitution from “We, the people of [then listed the states]” to “We, the people of the United States.” Moreover, the Articles had taken four years to approve. The concern was that unanimous approval would encourage a similar delay. Delay works against constitutional change, as the supporters of the Equal Rights Amendment found out in the 1970s. The Framers gambled that adoption by nine states would create its own momentum for adoption by the other four. The gamble worked, but it turned out to be a close-run thing.

The requirement for conventions was both practical, in that the anti-Constitution forces were more likely entrenched among the political interests in the state legislatures than among more broadly selected conventions. Conventions also reflected better the emerging American political theory that, while legislatures made ordinary laws, constitutions were expressions of shared fundamental political values that went to the very purpose of government. Constitutions, then, were social contracts resting on more direct exercise of popular sovereignty. They were, in the words of George Washington, “explicit and authentic acts” of the people. Since the entire population of a state could not be brought together to deliberate and vote on the Constitution, a convention selected for that purpose from the people of the state was the next best alternative.

A final oddity in Article VII is that the signatories made a rather sterile declaration of witness. In the Articles of Confederation, the signatories declared that they fully ratify and confirm everything said therein and pledged their constituents’ support. In the Constitution, the signatories merely attest that the “States present” (i.e., no Rhode Island) unanimously approved the Convention’s actions. A number of delegates had left the convention because they personally disapproved of the result, as did some of those who remained to sign. In this manner of attesting, there was no personal commitment of support that could prove politically problematic back home. It is like being a witness to a will signing. The witnesses merely attest that the process, such as having the testator sign the document after declaring it to be his will, was completed properly. The witnesses are not declaring their support for the substance of the will. Therefore, if the testator disinherits his family and gives everything to his golf buddies, the witnesses are not morally implicated.

In the end, it was somewhat of a political miracle that the Constitution was adopted at all. It is not a perfect document, and, had the people then been able to see the political reality in which it operates today, they might well have preferred something else. But it endures for many as a symbol of what should be, not only what is—the idea of the Constitution as much as its function.

Monday, April 26th, 2010

Professor Joerg W. Knipprath

http://www.swlaw.edu/faculty/faculty_listing/facultybio/114010

Southwestern Law School

Los Angeles, California

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.

Posted in Articles IV – VII of the United States Constitution, Constitutional Scholar Essays | Edit | 47 Comments »

47 Responses to “April 26, 2010 – Articles IV – VII of the U.S. Constitution – Guest Blogger: Joerg Knipprath, Professor ofLaw at Southwestern Law School”

  1. Daniel Smith says:

    Could states like California and Texas, with the approval of Congress, be divided thereby avoiding the presidential problem of 2000.

  2. Shannon C. says:

    The supremacy clause allows Federal Law to supersede State’s law. But doesn’t that mean the state’s don’t have to adhere to federal law if that federal law is unconstitutional-such as mandated healthcare?

  3. Shannon C. says:

    Do states have the right to secede from the Union?

  4. Susan Craig says:

    The provision for states to propose amendments makes a Constitutional Convention a lot more likely in the present situation as I (and I think most) thought it would entail a redo of the entire document. As I read it, at the next Governors meeting they could convene a convention specificly to draft a balance budget amendment or a strengthening of the 10th amendment change to put before congress. This makes the objections to a ConCon less daunting.

    I, also, appreciated the reminder of the drafters humanity with the inclusion of the errata sheet in the last article.

  5. Reed W says:

    Thanks for clarifying and bringing it all into current events.

  6. Carolyn Attaway says:

    @Shannon – according to sources, Texas v. White, 74 U.S. 700 (1869) was argued before the United States Supreme Court in 1869. The Court held in a 5–3 decision that the Constitution did not permit states to secede from the United States, and that the ordinances of secession, and all the acts of the legislatures within seceding states intended to give effect to such ordinances, were “absolutely null”. However, the decision did allow some possibility of the divisibility “through revolution, or through consent of the States”.[29][30]

    I find the last line fascinating, given all the current legistlation that is being formed in many states since this current administration came to office. It seems the 2 major issues, healthacre and immigration have caused the most uproar given the current number of states suing the federal gov’t over the healthcare mandate and commerce laws, and the new immigration law that was just signed in Arizona.

    However, all states appear to be working on their State Legistlation to prepare for any possible future conflicts with Federal Law. For example on April 1, 2009, (as I understand it) the Georgia State Senate passed a resolution 43-1 affirming states’ rights based on Jeffersonian principles; and for other purposes. Acts which would cause a nullification of federal law include, but are not limited to:
    Further infringements on the right to keep and bear arms including prohibitions of type or quantity of arms or ammunition; Any act regarding religion; further limitations on freedom of political speech; or further limitations on freedom of the press, and Requiring involuntary servitude, or governmental service other than a draft during a declared war, or pursuant to, or as an alternative to, incarceration after due process of law.

    It will be interesting to follow the Supreme Court procedure regarding States Rights in the HealthCare Case. And as I understand it, the healthcare law cannot be challenged until it goes into effect and some one or entity is harmed by the law. Such as a shareholder of a company that goes out of business due to the costs/taxes imposed by the law, they can sue the gov’t for theft. Also, the commerce laws makes no provision to force someone to engage in interstate commerce.

    Also, I appreciated the point made about the Federal gov’t being constitutionally obligated to wait for a State Governor’s request for assistance before intervention can be enacted. The contrast between Katrina and Arizona is striking regarding the assistance from the Federal Gov’t.

  7. Susan says:

    This is so interesting. Yesterday, my husband and I were having a discussion about the new immigration law in Arizona. I see it as unconstitutional and he see’s it as the state having to do something since the Federal Government has not fulfilled its obligation. We had to agree to disagree on this one.

  8. Robert Shanbaum says:

    Shannon C. wrote, “Do states have the right to secede from the Union?”

    Apparently not. See, U.S. Civil War, 1861-1865; an example of a Constitutional dispute not settled by the judiciary.

  9. Robert Shanbaum says:

    Susan Craig, I don’t see where a “Governors meeting” could enter into any call for a Constitutional convention – a petition by “the Legislatures of two-thirds of the several states” is the requirement. The executives of the states are left out of the process.

    Note that there’s no language that suggests that there would be any limit to the amendments that could be proposed at such a convention.

    There’s a requirement in the Connecticut Constitution that requires, every 20 years, a referendum on whether to hold a constitutional convention to amend (or conceivably replace) the state constitution. This was most recently held in 2008, when 59% of voters answered “no.”

    The reason the question failed, I think, is that it was seen as likely to attract activists – persons having one axe or another to grind – to a disproportionate degree. In the pursuit of one’s objective by that means, one runs a substantial risk of getting something one doesn’t want .

  10. Robert Shanbaum says:

    By the way, Shannon C., you may be interested in Andrew Jackson’s response to your question, given 33 years before the issue was settled with finality:

    http://avalon.law.yale.edu/19th_century/jack01.asp

    Jackson could run on; here’s the most apposite passage:

    But each State having expressly parted with so many powers as to constitute jointly with the other States a single nation, cannot from that period possess any right to secede, because such secession does not break a league, but destroys the unity of a nation, and any injury to that unity is not only a breach which would result from the contravention of a compact, but it is an offense against the whole Union.

  11. Susan Craig says:

    State Suffrage? Hasn’t that been abrogated by the XVII amendment? Article V: The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

    The only thing that has been changed is that the State has been deprived of its Suffrage by the XVIIth amendment which removed from the state the right to select its Senators.

  12. Article V is my favorite part of the entire Constitution, for it puts into the hands of the states a way to bring our runaway Congress back under our control. We need additional amendments to:
    1. Impose lifetime term limits of 12 years on Congress
    2. Impose a requirement for a Balanced Budget
    3. Repeal the 16th Amendment and force implementation of a consumption tax(i.e., the Fair Tax.
    4. Impose Congressional integrity that: (a) forces a statement of Constitutional authority to be attached to every bill, (b) forces an affidavit that they have read and understand every bill, (c) prevents them from exemting themselves from any law, and (d) prevents them from enacting any program for themselves that is not available to the general public.

  13. Ron Meier says:

    Thanks, your comments provide some interesting additional color and current relevance that I had not picked up on my initial reading and note taking.

  14. Susan Craig says:

    There is an annual meeting of Governors. If at this years convocation of governors, they got 34 of them to agree that an amendment was needed (say on clarification of the commerce clause, immigration or a balanced budget) would that be a call to convene a Convention for that limited purpose?

  15. Lillian Harvey says:

    I was thinking the same thing, Susan, after reading the Articles and Prof. Knipprath’s blog. Given the political climate today, we certainly can not count on Congress to act on behalf of the People as their will appears to serve the interest of their political party and ideology instead. That’s my opinion anyway. I also don’t feel we could count on all the state legislatures for the same reason. But, some guidance on setting up conventions within the States would be a start.
    A question for the participants: if you were part of a constitutional convention in your state, what issues would you want addressed? Where do you think our biggest problem is? The one condition I would suggest is that the 50 United States remain intact, as I believe our strength has always been in our unity.

  16. ERL says:

    Could the State Legislatures limit the agenda of a Constitutional Convention? For example, could 2/3 of the states approve a resolution calling for a convention, but only to consider specific amendments? Any other topics would be off-limits, and the state delegation would be given strict instrutions to withdraw if any other topic was discussed. The only amendments that could be discussed and acted upon would be those approved by at least 2/3 of the states.

    This would be a means to “control” a convention, and prevent it from spiraling out of control and overthrowing theConstitution itself.

    This method thus imposes three “filters” (or checks, if you will), on a Constitutional Convention.

    First, the agenda items would have to be approved by 2/3 of the states. No other topics would be permitted.

    Second, the Convention, made up of delegations from each state that chooses to participate (even if they did not approve a resolution calling for the convention in the first place), would debate each proposed amendment. The Convention would decide (by majority vote) whether to propose an amendment, and would also approve the final language of the amendment. The debate at the convention would thus be a second “filter” (or check).

    Third, any proposed amendments would be sent to the States for consideration (either by state legislatures, or by state conventions). This would provide the third “filter.”

    Finally, the Convention would be public, and would probably generate a great deal of media coverage and discussion. This openness would serve as a sort of “brake” on the convention, because the public would not accept a radical departure from the Constitution.

  17. Shannon C. says:

    Lillian Harvey , I live in Georgia. My desires would be the following Amendments:

    1. Balanced Budget
    2. Term Limits-one term each, as I am so anti Congress:)
    3. Repeal the 16th Amendment and say a human’s labor cannot be taxed (income tax). A consumption tax would be my choice.
    4. Reword the 10th Amendment to make it understandable to the Big Government Lovers: If it isn’t in theConstitution, stay out of it!

  18. Susan Craig says:

    I feel the relevant portion is as follows; on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; If called for by their governors the individual states legislatures concurring would constitute a call for such a convention and it also says nothing about needing to start from scratch the scope could be as confined as necessary.

  19. Thomas Soyars says:

    @Susan — can you point out a section of the Constitution that makes the Arizona law unconstitutional? What about Article IV Section 4. “and shall protect each of them against Invasion” Look sto me like the federal government has failed in their duty and the state is taking it upon itself to remedy the problem. Congress has also failed to “establish a uniform Rule of Naturalization” (Article I, Section 8).

    @Mike Lowry I agree with most of your recommendations but I have a problem with a balanced budget amendment that is too strict. There may be times (war, severe natural disaster, economic upheaval) that would require the government to run a temporarily unbalance budget. I would propose a measure that teh government be required to have a balanced budget over a rolling five year period. That way you could run a deficit in one or more years and be able to make it up in other years. It would give more flexibility but still provide for a balanced budget overall. I would also add an amendment that the federal government cannot pass unfunded mandates onto the states.

    @Joerg Knipprath — the best blog yet (in my humble opinion).

  20. Joe Rech says:

    -Term limits – three for House, two for senate, two for Pres. Retirement gained in thirds for House, halfs for Senate and Pres.
    -Balanced budget – except in times of national emergency (disaster or war)
    -Repeal taxes – any current taxes enacted for a specific purpose and that purpose no longer exists, immediate repeal.
    -VAT replace income tax, started at some level like 11% and NEVER to exceed 17%, not always levied on all levels of production and not always the same on all products (can be 11% on food, 17% on yachts?)
    -limits on other taxes – 25% inheritance tax on $1mil or more, cap gains tax limits 15%
    -reiterate oath – support and defend the constitution – not interpret the constitution.

  21. Donna Hardeman says:

    Lillian – I agree with Shannon’s List (which is almost identical to Mike’s list). The one thing I would point out, however, is my belief that Congress – either house – be allowed 2 terms. I believe you need some members in Congress who are not “lame ducks” i.e. who know they will have to vote with the will of the electorate if they expect to get elected again. However, by denying the long term benefits of continued “service” we would be denying the chance to get so firmly embedded that political favors, etc. become more important than the people.

    Susan – could you clarify your point about Suffrage being denied? I’m responding to what I think you said but am not totally sure I understood you. Suffrage (voting) rights in the U.S. Senate have not been denied to the States. All States still have 2 Senators representing them. What changed was the manner of selecting the Senators. Originally it was the state legislature and now it’s by popular vote.

  22. Shannon C. says:

    Suasn Craig, You tell ‘em! Good points. Man, I am so glad this site exists. The only thing I wish was a little different is if the guest bloggers could opine in on a few of these a few times a day to answer a few questions.

    Great site!!!

  23. Donna Hardeman says:

    Susan – you and your husband seem to be on 2 different issues in discussing the immigration law. He is certainly correct in saying Arizona took action because the federal government wouldn’t. You may also be correct in saying it’s unconstitutional. Problem is, I couldn’t find the actual text online so I can only comment on what news is out there. It has been suggested that immigration laws are federal rights and not states’ rights. However, if the Arizonalaw simply mirrors the federal law in making it a state crime to be in Arizona illegally, I don’t think this would pose an issue. Also, it’s been suggested that you can’t racially profile by stopping someone solely for the purpose of checking identification. Jan Brewer claims the law simply requires identification to be carried so proof of legality can be shown if someone is stopped for a crime. This also would pose no constitutional problem. If you figure out where the text is, let me know and I can blog a little more intelligently on the subject. Do you have a specific challenge to the constitutionality?

  24. Carolyn Attaway says:

    Hello Shannon C. from a fellow Georgian!

    Our State has to have a Balanced Budget, so I agree that those same rules should apply to the Federal Gov’t. The Pay As You Go is a complete disaster and Congress cannot even stick to their own rules.

    I think it should be a 2-term limit, just because I personally feel that 1 term is not enough time some really good congressmen need to get issues addressed and completed. However, I feel every congressman should pledge to uphold the Constitution, and that impeachment should be allowed if they abuse their time in Congress.

    Along with the 16th, I think the 17th Amendment should be repealed. Senators should represent their State’s interest, and quite going rogue.

    The 10th Amendment can be reworded to be more specific, but I think the problem lies with the States giving to much of their power away in exchange for funds. Over time, all those little crumbs they have been throwing away to the Fed. Gov’t, have now been gathered together, and the States are realizing half their bakery is gone, and managed by someone else.

  25. ERL says:

    Another amendment that should receive serious consideration is a “Single Topic Legislation” requirement. Several states have a provision that each bill considered by the legislature must have a single topic only. So-called “omnibus” bills are prohibited, as are “earmarks” and “riders” that are unpopular expenditures attached to an important bill. (The Stimulus Package passed last year was a hodgepodge of pet projects. It is unlikely that those projects would pass if they stood alone).

    In other words, every proposal considered by Congress would have to stand or fall on its own. This would help reduce deficit spending by forcing Congress to look at each proposal separately, and not as small earmarks on a gargantuan bill.

  26. Debbie Beardsley says:

    “Equally important, Article VI expressly binds the state courts to abide by the federal supreme law when there exists a conflict with state law. ” I am taking this to mean that the states must follow Federal law at a minimum. If so, how and why are the states allowed to “decide” to not follow federal law. Ie, California and the medical marijuana or the wonderful mayor of San Francisco declaring a sanctuary city????? Doesn’t this behavior and the lack of action on the part of the government a big slap in the face to the Constitution?

    I am loving reading and learning but at the same time it is very disheartening to see how far away from theConstitution we have strayed.

  27. Chuck Plano, Tx says:

    In regard to Texas being able to devide itself as was suggested by someone, reference California and Texas dividing in order to prevent a repeat of the 2000 Presidential election, Texas has that right as stated in the Joint Resolution for the annexiation of March 1, 1845 . This right was mantained and specifically quoted in other settlements of border disputes with Mexico in the Treaty of Gadulape Hidalgo and the Treaty of The Gadsden Purchase. This is only one question regarding Texas as Texas entered the United States as a free and Soviourn Nation and yet it’s annexiation was by joint resolution and not a treaty. The Senate rejected a treaty to annex Texas four times in 1844 so did Congress have the right under the Constution to Annex a Nation?? The Constution is silent on this as it refers to territories, article IV Section 3, and not nations.

  28. Andy Sparks says:

    @Robert: Does might make right? Historically there have been many occasions where states have threatened secession: some of the western states when it seemed the U.S. would support a Spanish decision to close off the Mississippi during the early days of the Republic, some radicals in the New England states during the War of 1812, Thomas Jefferson even initially had secessionist language in the Kentucky Resolutions he drafted in 1798 (he was convinced to remove the offending passage before it was submitted). Why would parties threaten to secede if they didn’t think it was a viable option. While the Texas vs. White case put a law on the books regarding the legality of secession in 1869 after the Civil War, it would be interesting to see if it could be held up if challenged. The fact is that the Constitution is fairly quiet regarding the constitutionality of the issue.

  29. Donna Hardeman says:

    Guest bloggers coming in at the end of the day to review some of the comments and questions is a supremely good idea. Shannon – I must admit, it had occurred to me also but I’m glad you put it in writing. Maybe this idea could be incorporated into our learning process. We all have great comments and questions but the experts here could help.

  30. Susan Craig says:

    States Suffrage has been taken away and another Representative has been put in the Senators place. As I read the original articles the House of Representatives was to have been the representative body of the ‘vox populi’ whereas the Senators were to be the corporate representation of the State as a corporate whole. Now there is no longer a corporate representation of the the State but another directly selected Representative of the people.

  31. WeThePeople says:

    Making it so that 2/3 was needed for ratification seems very strategic to me. It seems that the government enjoys that they don’t need everyone’s approval. (As in the 3/5 Compromise in 1787– WHY would being black ever make you less of a person?) I also appreciate that in Article 6 it is stated that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” If religious discrimination isn’t acceptable in government, why is it still so prevalent?
    If one state has a controversial law, like legalizing same sex marriage, would holding a convention be the first step towards creating an amendment? After that it would run through both the houses and then to the people…

  32. Hi all, great stuff again.AZ,Govner is a brave soul, she has pushed the hand as no one has managed to.After reading J, Knippraths comments it seems to me that in Art.4 section 4,(protection fom invasion) might be the key in fighting for the Constitutionality of the States new law.However I have this nagging feeling that there is probably grounds to overturn it… in that perhaps it could be construded that the long, long history of NOT inforcing the laws that are on the book already my be percieved as consent.On top of that when an act that is against the law is ignored, people begin to think of it as “their right” to continue an set aside the law they know exists,but have rendered it without any reach.
    Is this the reason that the laws have been ignored so long, was this the grounds that were maturing as the years wore on( I know that sounds like conspiracy stuff)but I find no sense is the past lack of willingness to act by DC.

  33. hey! It’s Janine Turner. I agree! I would LOVE to get the Constitutional Scholars of the day to chime in at least once more during the day to answer questions. This was my original intent. I am working on it! I am so glad y’all have joined our blog. Isn’t it wonderful to have this opportunity to study our Constitution. I am learning so much – such as why the Preamble states, “We the People of the United States..” That’s a cook piece of trivia. Yes?

  34. Shannon C. says:

    Janine, GREAT thing you are doing. As a dad of two little girls, this is so important for their futures.

    Can someone tell me if I have this right? The Supremacy Clause, as I understand it, means that federal lawsupercedes state law. However, I take the last sentence to mean in today’s language , “UNLESS the federal law is unconstitutional or goes against an existing state law.”

    My point is, just because the federal government mandates somthing like healthcare purchasing, that does not mean it is constitutional.

    Any thoughts?

  35. J.D. Wiggins says:

    Please comment on Article VI “Supremacy Clause.” Couldn’t this be used as a back door for making the Second Amendment null and void?

  36. There are a lot of terrific questions here. I wish we could have a seminar to discuss them all. Let me just address a couple. ERL asked whether the states could limit a constitutional convention to a particular topic. If 34 states call for a balanced budget amendment, technically Congress would call a convention to discuss only that topic. But what if the delegates decided to push further? This is unknown territory, and why most constitutional law professors and most politicians oppose this method. It is less the states than the Congress that is likely to fear a run-away convention. Congress could refuse to forward to the states anything that went beyond the charge to the convention. However, there is a precedent for a run-away convention going beyond their charge and then submitting their product directly to the states. That would be the Philadelphia Convention of 1787. Their action is based on the 18th/19th century theory of popular sovereignty that the people, as soon-to-be Supreme Court Justice James Wilson said at the time, “The people may change the constitutions whenever and however they please.” Kept within the context of Article V, this is not even that radical. Could the people change the Constitution outside Article V, simply by gathering in convention (say, a huge town hall meeting over the internet)? That issue was argued before the Supreme Court in 1849, arising out of just such an attempt to adopt a new constitution in Rhode Island (which controversy produced a small “insurrection”—the Dorr War). The attorneys, including Daniel Webster and other high-powered talent, argued the issue of popular constitutionalism exhaustively; the Supreme Court then ducked the issue, deeming it a non-justiciable political question not suited for the courts. There is insight in that. Ultimately, these basic constitutional issues are political. Could today’s Congress refuse to pass along other constitutional changes demanded by a convention, without appearing to disregard popular will? The Confederation Congress couldn’t oppose the political appeal of the Convention’s action. On the other hand, today’s Congress may not be as sensitive to the popular will.

  37. Let me answer a couple more. The single topic issue. There is a historical argument exactly like that. It arose out of the “line-item veto” controversy, when Congress in the 1990s tried to give the President a limited line-item veto over certain budgetary and tax issues. The Supreme Court found that to be unconstitutional. One argument in support of the law is that the Constitution requires each “bill” or joint resolution to pass both houses and be presented to the President. Some historians analyzed the term and argued that, at the time of the founding, the meaning of “bill” was understood to focus on a single subject. Plausibly, that would have required each budget item to be approved separately, rather than as one “Omnibus Budget Bill.” However, the practice since nearly the beginning has been to allow bills to address more than one subject.
    Merely having governors call for a convention is not enough. Legislatures have to act. Do legislatures have to phrase their petitions identically? Or just enough for Congress to get the message? Again, that is ultimately a matter of political pressure. Could states rescind their petition before a convention is called? Probably yes.
    As to the Supremacy Clause, for the states to be bound by a federal law, it would have to be constitutional. But sometimes states are prohibited from acting, even if there is no specific federal law against them. Sometimes the mere existence of a federal power in the Constitution prevents a state from acting is the state’s action conflicts with the purpose of the provision in the Constitution. That’s called “dormant federal power” theory. If the Constitutionis said to make a certain power “exclusive” in the federal government, the states cannot act in that area at all. One possible example is the federal power over immigration and naturalization. That is one potential problem for parts of the AZ law. If the Constitution intends for federal power to be exclusive, then states cannot act even in trhe absence of federal regulation or even in support of similar federal law. I have posted about this further on my blog.

  38. Robyn says:

    ERL, I agree with a Single Topic/Issue Legislation. Not only would the ‘we, the people’ see the text (hopefully), we would also know who supports the legislation (or is beholden to special interests/lobbyists. And need I say, it would be a short bill! KIS – Keep It Simple!

  39. Lillian Harvey says:

    Hi Georgians and others… Virginian here :-) ). These are my thoughts on the Constitutional Convention.
    First fix some problematic fixes: Repeal the 16th and 17th Amendments.
    -Repealing the 16th returns to Congress the authority to impose import and excise taxes only. How they work within that framework would be an interesting national discussion, whether it be through VAT or Fair Taxation. One thing I like in the Fair Tax proposal is that the percentage of your purchase that is the tax is on your sales receipt. If it is increased, the consumers, We the People, can demand to know why. I am against the Flat Income Tax because we all know that flat tax percentage will increase. Repealing the amendment that allows income to be taxed is critical to me.
    -Repealing the 17th would put Senators back to work for the States they represent. If they are going to be there forever, they better be working for the State legislatures that sent them instead of a political party machine.
    -I would love to see the language clarified on the recess appointments clause. If the Executive can’t get an appointment through the Senate during regular sessions, there is something wrong with the appointment. It sets up too much game playing and distracts from the work that needs to be done. Although worrying to me, it is not as important as the repeals of the aforementioned amendments. I am in a “less is more” mood.

    From what the Professor has written, the Omnibus-type bills Congress seems to love appear to be the source of our budgetary problems. When I think about it, the greatest objection to the Healthcare bill was its size and scope. The call to kill that bill and deal with each component separately so the issues of access, cost and the overall impact on the economy/businesses could be better anticipated was the loudest from We the People. But the Executive and Congressional leadership absolutely refused to do this. Why?
    Now we are in a real mess. You can’t just repeal the bad parts; the whole thing has to go. And it is my belief that it should. If the Congress can not do something correctly, that power to manage these issues should remain with the States. Then Congress can clean up their act or we clean up the Congress in the next election cycle.
    Is there a way to write constitutional language insisting upon one bill, or issue, being dealt with at a time? It seems that the Supreme Court ruling against the line item veto was based on the notion of Congress legislating one issue at a time. Since that is not the case, is the Supreme Court decision relevant?

  40. Shannon C. says:

    Mr. Knipprath, thanks for your willingness to come back and answer some questions!!! You did a good job.

  41. Gitel says:

    @WeThePeople – nobody ever said being black made someone “less of a person.” Remember, the more people in the state, the more representatives the state receives. The problem was if black slaves were counted as part of the population, the southern slave states would be entitled to more representatives. The northern states were against that. Of course, the southern states wanted to count the slaves so they could have the extra representatives.

    The compromise was made so the south wouldn’t be “over-represented” in the northerners’ view. It never says anywhere in the Constitution that a black is “less of a person.”

    Practically speaking, a state would get 1 representative for 30,000 white citizens, but it would take 50,000 black slaves to get another representative.

  42. Robert Shanbaum says:

    @Andy: I do not think that “might makes right”, but I think that might sometimes makes fact.

    As you suggest, the Constitution itself is silent on the issue, although one can trace the commitment to a “perpetual” union stated in the Articles of Confederation through the “more perfect union” objective stated in the Constitutionas one approach to arguing in favor of the voluntary act of union being legally undoable.

    Given that there is no power of secession clearly reserved to the states in the Constitution, it’s hard to see how the question matters much from a practical standpoint. Whether a state would be “allowed” to secede would be determined by the actions of the remainder of the Union, which could either force the issue or not – just like the last time the question arose. There’s no court in which the controversy might be meaningfully resolved; the seceding state would hardly be likely to recognize the jurisdiction of U.S. courts.

    Given our avowed (or maybe I should say “presumed”) commitment to the right of self-determination, at least when it comes to other peoples, I don’t think that the actions of the U.S. in the Civil War were necessarily “right”, but I think I’m glad the Union was preserved – “right” or not.

  43. Chuck Plano, Tx says:

    So Robert if preserving the Union is something that is best for the whole why did the United States at the time Texas declared it’s independence from Mexico the United States was one of the first to recognize that or when the State of Georga declared her independence from the USSR and the other Baltic and Eastern Block countries did the same we seemed as a Nation to think that was the “right” thing to do. It was because we believed that “People” retain the right to self determination and that right is granted to us by “God” not the state.

  44. Mary Lou Leddy says:

    I am so excited about this project. Studying the Constitution has been a real eye opener for me. I must admit it is frightening to see how far this great country has veered from the Constitution . I am however uplifted by reading the blogs from all of you. I firmly believe that by becomimg more aware of the founders thoughts and words we can make much better choices of candidates who run for office. Candidates who are believers and supporters of theConstitution.
    Special thanks to Janine & Cathy

  45. In readiing about a state honoring a homosexual marriage as law when they were not entered into this law was quite surprizing to me. This is what we call a slippery slope where it comes to recognizing something a violitile as this subject is. I would have a difficult time condoning this as constitutional but evidently it is. This is one thing I think the Framers of this constitution would never condone nor would give credence. So the amendment to this law had to be made so that a state would not have to be forced into an immoral state simply because they disagree and have a moral duty to uphold. These fianl articles have an impartail upholding in passing that they needed only witnesses and not a quorum of 2/3 of the staqtes representatives. This was so because one state never was there to cast its vote nd thereby be apart of this constitution.

  46. Andy Sparks says:

    Robert,

    Well put. I would point to the 10th amendment which specifies that those powers not specifically delegated to theConstitution are reserved to the States or the People as an argument for (at least) the possibility of secession. While I may disagree (somewhat) to your argument, I do not disagree with your sentiment. I, for one, am glad the Union won despite being born and raised in Texas.

  47. yguy says:

    “Currently, the federal Defense of Marriage Act protects non-recognition of a same-sex marriage granted in another state. But that law itself may be unconstitutional under Article IV. It’s a close case…”

    It shouldn’t be. The push for same sex marriage is clearly an attempt by some for whom liberty means license to impose their immorality on society at large, and clearly the full faith and credit clause was never intended to facilitate such perfidy.

 

/1 Comment/by

Article III U.S. Constitution – Janine Turner

, , , , , ,

Howdy from Texas. I thank you for joining us on our day 3 of the “90 in 90 = 180 History Holds the Key to the Future.” Juliette read Article III to me in the car today and I found it to be just fascinating how it all fits together like pieces of a puzzle. I hope you are reading the Constitution with your children and/or family or friend and spreading the word about our contest for kids the “We the People 9.17 Contest.” Entries are due July 4th!

It is exciting that you are participating in our national conversational blog/reading. The blog entries are stimulating and though provoking and I thank you for your time and dedication. I also thank Lawrence Spiwak for his perceptive and provoking essay!

I am in awe in regard to how the checks and balances continue to unfold. The Republic of the United States continues to offer the people their voice through their elected representatives even with the Supreme Court Justices. The people in essence nominate and confirm through the President and Senate that we elect. Check. The people may impeach a Supreme Court Justice through the President and Senate whom we elect. Check.

Thus, the relevancy today is to be very careful whom we elect and to know our representative’s thoughts and opinions about the Constitution. The Supreme Court’s job is to uphold the Constitution yet we know in modern society there are differing views about the relevancy of the Constitution and it is continuously under attack, even if subtly.

The other aspect of today’s relevancy that fascinates me is in regard to the Constitution’s diligence in making sure that tyranny could not raise it’s ugly head. The checks and balances came full circle today in reading Article III and in reading Lawrence Spiwak’s essay. Once again it is the mastery of the checks and balances that motivate marvel.

The Legislative Branch legislates potential laws of the land, written indirectly through the people who elected the representatives. Check. The President executes the bill by signing it, fulfilled by the people who elected him. Check. And the Supreme Court, who is indirectly chosen by the people through their elected President and Senate, evaluates the law to make sure it does not violate the Constitution and/or the rights of the citizens or states. Check. The Legislative bill is empowered or disempowered by the President who may execute it or veto it. Check by President. Yet, Congress may override the President by voting the bill into fruition by 2/3 of the vote. Check by Congress. The Supreme Court may hold the new law to the light of Constitution and may either render it valid or invalid. Check by the Supreme Court.

And all the while, the people are ruling through their representative Republic. The people, by voting, have the ultimate check. Vetting and voting seem to be the pivotal words gleaned from Article I, II and III. We need to check out our candidates thoroughly. Mysteries do not serve the process well. But, men are not angels and thus, we have the Constitution to keep us honest.

Brilliant.

See you tomorrow!!!! Articles 4-7.

Have a great night. Check!

Janine Turner

April 23, 2010

P.S. I hope this makes sense. I am exhausted and can barely hold my eyes open!

Posted in Article III of the United States Constitution, Constitutional Essays by Janine | Edit | 12 Comments »

12 Responses to “April 23, 2010 – Article III U.S. Constitution – Janine Turner”

  1. The theory behind checks and balances was established so that not one agency could rule like a dictator. When that came to pass the most logical angecy to stop unwantent power grabs was the Supreme Court. Today we need that august body more then ever to help us as they did when laws were being unconsttutional. This will promote not only a balance but will put the office of the President under strict checks. When he realizes his error he will have to back down once and for all.

  2. “What is human?” GOD’s answer…

    Keven J. Hasson, President of the Becket Fund, recently stated, “…the American and Soviet systems…offered differing visions of freedom and human nature.” The missing element in every human ‘solution’ is an accurate definition of the creature.

    In the Bible, God’s Word has accurately defined the human being as ‘the earth creature endowed with the ability to choose.’ His natural Rights, therefore, are merely an extension and application of natural human endowments, which all humans – everywhere in the world – possess. Even as goldfish, canaries, and puppy dogs require an environment based on their natural features, so humans require external freedom to fulfill their natural internal abilities of choice, selection, election, and consent. Uniquely, America was founded on this definitive paradigm in human nature. All nations should reject foundational human opinion that teaches otherwise.

    Further, God’s gift of criteria for choosing between alternatives supplies us with superior standards for successful visionary choice-making. Humans cannot invent (or replace) criteria greater than self, ACLU to the contrary.

    Defining ‘human’ accurately is the first step in establishing accurate and successful environments, institutions, and creative relationships for earth’s Choicemaker. Middle East governments, and all leaders, would do well to pay attention: nature and nature’s Creator speak with an authoritative voice. Psalms 25:12 119:30, 173 Joel 3:14 Selah

    No one is smarter than their criteria.

    Jim Baxter Sgt. USMC WWII & Korean War semper fidelis http://www.choicemaker.net/

  3. Susan Craig says:

    I have never seen such an accurate and succinct definition of human, Jim. Fair winds and following seas.

  4. Reed W says:

    Reading done through Article III. It’s great to have lesson plan and a course to follow. Keeps me going. Thanks to Cathy for being so kind as to write us! Carry on!

  5. Ken Brown says:

    The purpose of the Supreme Court is to rule on laws based on the Constitution. However, recently it has been viewed as “interpreting the Constitution”. The Constitution is not a living, breathing document as many us of were tought in school, rather it is writen in ink on parchment. Our founders were smart enough to know that some changes were in evitable and thus they left a way to change it thru the ammendment process. Unfortunately, the 17th ammendment altered the checks and balances system that the founders left for us because the ultimate check on the federal government was the States. The only way to restore the full compliment of checks and balances is to repeal the 17th ammendment. That way the States would have a voice before these unfunded mandates were ever passed into law.
    P.S. Well said Jim

  6. Gitel says:

    I want to call people’s attention to the following web site:

    http://www.usconstitution.net/const.html#Article1

    Although the Constitution you have on linked to your site is good, I feel this other site is easier. With one click you can get a definition of an unfamiliar word, and there are also links to explanatory notes.

  7. Kay says:

    Not only reading through the Constitution and the essay are valuable in and of themselves, the comments following by readers shed additional light on the reading. I am so excited to be part of this project, and have spread the word. Next fall I am privileged to teach the Constitution to homeschooled high schoolers, the fourth time in about 10 years. Knowing a short history of what precipitated the writing and thought that caused the Constitution to be written the way it is sets the stage. Not particularly what led up to the Constitution, but way back, back to the events surrounding the Magna Carta, the printing press, the Reformation, the ancient philosophers’ impact on the education of the principal players/writers of the Constitution all produced our document. The time was ripe for a Madison, a Hamilton, a Jay, etc. to put it all together.

  8. Hello to all.I was wondering if there is anyone who would like to opine on the current actions by the AZ.Gov? My take is ,although it seems to be powers given to Congress, I am sympathic to the State acting in it’s own behalf as a result of Congress failing to act at all and for such a long time.What is a state to do (any State) when there is such a gigantic failure of the Legislature to act.Everyone is afraid to be politically incorrect or acting out side the law and possibily stepping on the toes of someones civil rights etc. The inaction of the Feds is at the root of the festering problem and I believe it has to do with seeking and securing a voting block,not enforcing a rule of law .When the motive for action or inaction is not inspired by the rule of law but rather the self interest of Politicians a lobsided foundation results and sets all citizens up for irrational outcomes.

  9. Susan Craig says:

    It is the right thing. It is about time. The State has the duty to do all that it can before it kicks the ball upstairs. But it will be an interesting squabble to watch.

  10. Pricila says:

    What Arizona did is legal. The states still have the right to govern their police as they see fit to protect their citizens living in the state. Thats why the President said that they are going to keep an eye on Arizona.

    Check out the last video, number six.

    http://www.thefoxnation.com/judge-andrew-napolitano/2010/01/11/judge-andrew-napolitanos-constitution-and-freedom-part-1

  11. Louis Palermo says:

    The Supremacy Clause of Article IV declares that the “Constitution…shall be the supreme Law of the Land.” This declaration demonstrates that there is a hierarchical organization of the federal government as it relates to the states. Also known as ‘Preemption’. Under preemption if there is a conflict between this hierarchical relationship, federal law wins. The Supreme Court has interpreted Article IV as limiting the ability of states to discriminate upon ‘out-of’staters’. This is also known as the Privileges and Immunities clause. Article VI reiterates the Supremacy clause.

    Article V of the Constitution prescribes ways to alter the Constitution as is evidenced in your blog. Article VII as we shall see was the Constitutional Convention’s mandate to change the ‘Articles of Confederation’ and thus ‘ the Ratification of the Conventions of nine States shall be sufficient for the Establishment of this Constitution between the States”. So the relevant meaning of all Articles of the Constitution have remained virtually unchanged since its inception. We may quarrel over its interpretation but we must not question the divine wisdom of its underlying principles! The founding fathers’ thoughts created this ‘Document’ for the people then and now!

  12. AllisonW says:

    More and more evidence of the checks and balances system seem to emerge with each Article and Section!
    According to Section III of Article III, the Supreme Court shall determine if a person shall be convicted of treason, while Congress “shall have power to declare the punishment.”
    Isn’t it a marvel how the founding fathers allowed the three branches of government to function with balance and fairness?

/0 Comments/by

Article III of the U.S. Constitution – Cathy Gillespie

, , , , , , , ,

What an exciting first week we have had!  Articles I, II, and III of the United States Constitution, with some outstanding guest bloggers: David Bobb, Andrew Langer and Lawrence Spiwak.

A big thank you today to Lawrence Spiwak for his thoughts on Article III.  Mr. Spiwak clearly explained the delicate system of checks and balances working  in concert with a strong and independent judiciary.  I loved Mr. Spiwak’s point that the best mechanism for change in the judicial branch is to let the electoral process play out.  That is the best mechanism for change in any branch of the government, but it first requires informed, educated, engaged, and enthusiastic citizens, citizens who know the United States Constituion and our country’s founding principles!

When reading Article III, I was struck by its brevity, as compared with Articles I and II, and how much latitude Congress was given in establishing the Court system – another example of checks and balances at work.

I was also very interested in the Alexander Hamilton quote Bill posted from Federalist 78, so I looked it up and thought it worth posting in its entirety:

“Whoever attentively considers the different departments of power must perceive, that in a government which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the constitution; because it will be least in a capacity to annoy or injure them.  The executive not only dispenses the honors, but holds the sword of the community.  The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated.  The judiciary, on the contrary, has no influence over either the sword or the purse, no direction either of the strength or of the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither Force nor Will, but merely judgement; and must ultimately depend upon the aid of the executive arm even for the efficacy of  its judgments.”

“Neither Force nor Will, but merely judgement.”   I had never thought of the differing powers of the three branches in those terms before, but it is true – the executive and legislative branch have many more enforcement mechanisms and sheer power and will at their disposal, than the judicial branch.

Thank you for joining us this week as we explored the three branches of government in Articles I, II, and III of the Constitution.   The Assignment for the weekend is to read Articles IV, V, VI, and VII and be ready to blog on them, on Monday!  Tuesday we will blog on the Amendments, and Wednesday we will blog on the the first Federalist Paper.

Have a Blessed weekend!

See you on Monday!!

Cathy Gillespie

April 23, 2010

3 Responses to “April 23, 2010 – Article III of the U.S. Constitution – Cathy Gillespie”

  1. Jim Baxter says:

    The Founding principles of our Constitution clearly state that
    the powers of government are permanently in the mind and
    hand of The People of the United States of America. Thus,
    every elected person is a temporary steward of their office
    and obligated to serve The American People while in office.

    Such elected officials need to be reminded that they do not
    own the office. WE, The American People, are the owners and
    may give orders to the elected & appointed stewards of the office.

    I have yet to hear this important point-of-failure on the part of
    those who seek to ‘change’ our way of life to an historically
    failure-oriented system of non-representation of stewardshp
    to The People. Why?

    Begging compromise won’t work with the ignorant! Freedom is
    the proper enlargement – not fewer choices for the choicemaker!

    semper fidelis
    Jim Baxter
    Sgt. USMC
    WWII & Korean War

    pointman/follower of The Lion of Judah

    + + +

  2. Clearly our Founding Fathers constructed our Republic on Biblical Principles and like anything else our morality MUST have a “Standard of Measure”, because God’s Word never changes and is always JUST. If we depend on what man’s values are we will always fall short of Justice and the Scales will no longer be balanced. Observing how politicians try to “fundamentally” change our society and inplement their idea of “values” is it any wonder why our country is so divided? Consider what would happen if we changed the “Standards of Measure” for other things, (Science, Mathematics, Music, etc.) The Bible says that the “devil is the author of confusion…..” All this does is separate and divide. However I see many coming back to their conservative principles and I’m thrilled.

  3. valerie says:

    In 1787, the year the constitution was written, Congress passed the Northwest Ordinance. It states that formal education is to include religion, a “fundamental system of beliefs concerning man’s origin and relationship to the cosmic universe as well as his relationship with his fellowmen.”

    In his farwell address Washington stated, “Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensible supports . . . And let us with caution indulge the supposition that morality can be maintained w/o religion.”

    Jefferson wrote a bill for establishing elementary schools in Virginia. It includes the following statement, “No religious reading, instruction, or exercise shall be prescribed or practiced inconsistent with the tenets of any religious sect or denomination.” He must have assumed religion would be taught.

    Franklin outlined five fundamentals in all “sound” religion: one God, the Creator of the universe; said God should be worshipped; the most fundamental good we can do for him is to be good to others; and the soul of man is immortal and will be treated with justice in the afterlife in regards to his conduct here.

    Samuel Adams called the above the Religion of America and equated it with the religion of all mankind.

    These tenets run thru the founder’s writings, and they thought they were so important in “providing good government and the happiness of mankind” that they wanted them taught in school.

    It is obvious from the founder’s own words that they viewed separation of church and state very differently than it is seen today.

    Above facts come from The 5000 Year Leap

/0 Comments/by

Article II of the U.S. Constitution

, , , , , ,
Guest Essayist: Andrew Langer, President of the Institute for Liberty

While much attention has been focused on Congress and Article One’s legislative powers, the Constitution provides for three branches of government and Article Two  of the U.S. Constitution outlines powers for the executive branch i.e., the office of the President and those who serve under him. In addition to enumerations of the powers to nominate appointees (with the advice and consent of Congress), the power to make treaties (which have to be ratified by the Senate),  and his executive or enforcement authority Article 2 also discusses the wholly unique system of electing a president, known as the electoral college.

In this particular post, we will focus on two aspects of Article Two: the enforcement of laws passed by Congress, as well as the issue of the Electoral College.

As is clear through the structure of the Constitution itself, power flows from the people to the government via the legal structure called the Constitution.  In its opening statement, Article 2 reaffirms this concept, making it clear that power “vests” in an “executive” branch of government—meaning that it administers, oversees, and “executes” what is the legislative “will” of the people.

Because the system is one of checks, balances, and diffusion of power (the founders were skeptical of concentrated government power), powers enumerated to the federal executive are undercut by powers enumerated to Congress under Article 1 (and vice-versa).  The President is  Commander-in-Chief of the military under Article 1, but it is only Congress that can declare war.  On the other hand, while Congress passes laws, Article Two vests with the Executive Branch the requirement that those laws are “faithfully executed”.  In the modern executive branch many of these tasks are carried out under what is called “administrative law” via the federal regulatory state.

Issues have arisen when the agencies carrying out the execution of Congressional laws appear to exceed their statutory mandate and often challenges arise charging that an agency has effectively undermined Congress’ power to make the law.  While there may be an inevitable tension between the executive and the legislative branch in terms of the scope of their power, Article Two contemplates that the Executive branch engage in enforcement and execution of laws with little to no lawmaking like behavior occurring.

Critics charge that as Congress grows more unwilling to take proper care in writing laws that are clear and limited in scope, they have invited the Executive Branch to assume far more authority in the interpretation and execution of those laws leading to a greatly convoluted regulatory state.    However as the writers of the Constitution make clear the powers of the executive are to be checked by those of the other two branches such that a significant deviation from the Constitution could be subject to challenge in Court or by Congress through its powers to tax and appropriate etc.

Now let us turn to the electoral college.

When envisioning the Republic, the founders recognized that competing interests would require that the demands of a majority group be weighed against the impact of those demands against the rights of minority groups (political or otherwise).  Thus, we are not a pure democracy, but a representative republic—and, the American Electoral College was born out of those notion.

One of the challenges to the Republic, the founders knew, would be the inherent conflict between the interests of rural Americans and those who lived in cities.  Different things are important to people living in farming communities than to those who live within urban centers—there are different public policy priorities, at the very least, and possibly different sets of values and societal mores.  But in a pure democracy, regions with the highest populations would drive the public policy agenda, potentially sacrificing the interests of those in rural or desolate regions on the altar of the regions with the most people.

The founders didn’t want the selection of the President to be by “urban center fiat”, so they devised a mechanism to level the playing field.  It is akin to how the World Series is played:  it isn’t decided in one single game, or which team scored the most runs in a series of different games.  It is broken down into a “best of seven” contest, leveling the playing field by allowing each time numerous chances to score incremental victories.

As initially envisioned, each state gets a number of votes equal to the sum of the number of House members plus the number of Senators.  That way, even the states with the smallest population have a minimum of three votes, and are thus equalized.  Moreover, when combined, the electoral votes of these smaller or less populous states could challenge or overcome the electoral votes of larger and more populated ones.  Thus, the common interests of more rural states could be effectively aggregated, and their rights protected.

Unlike many other systems which rely on simple majorities our system ensures that the President actually presides over “united” states and has a built in constituency that is broad and enduring.   The end result is the President of our nation ultimately chosen by the electoral college far more broadly represents the interests of the nation as a whole.

April 22, 2010

Posted in Article II of the United States Constitution, Constitutional Scholar Essays | Edit | 73 Comments »

/0 Comments/by

Article I of the U.S. Constitution

, , , , , , , , , , , , ,
Guest Essayist: David Bobb, Director and Lecturer in Political Science | Allan P. Kirby, Jr. Center for Constitutional Studies and Citizenship | Hillsdale College

“He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people, and eat out their substance.”

This complaint, however current it might sound, was lodged not against any occupant of the White House.  Rather, American revolutionaries made this claim against King George III in the Declaration of Independence.

Imbued with the “Spirit of ’76,” and given voice by a young Thomas Jefferson, early Americans also indicted the British King in the Declaration “for suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.”

The Crown had assumed all legislative, executive, and judicial powers, the colonists claimed.  Thus they declared that the “prince” (King George III) had become a “tyrant.”  And a tyrant “is unfit to be the ruler of a free people.”

To understand Article I of the Constitution—and the entirety of the “supreme law of the land”—you have to understand the argument of the Declaration of Independence.  The Declaration indicts the King for aggrandizing his power at the expense of the people.  It also acts as a blueprint for limited government by making the bold claim that our rights come not from any government but instead from the Creator.

The Constitution, then, gives structure to our liberties—and to limited government.  Article I of the Constitution is the foundation of this structure. Made up of ten sections, Article I is the longest of the Constitution’s seven articles.  Its length should not confuse us, however, for its meaning is clear if we read it carefully.

Article I, Section 1 says that the law-making authority in the national government resides in Congress.  Not in the Crown, and not directly with the people.  We the people should not vote directly on every issue, the Founding Fathers held.  That strictly democratic form of government can too easily lead to tyranny.  Instead, we the people will elect representatives.  This is republican rule, and conduces more to liberty than any other form of government.

The national legislature is bicameral, with a House of Representatives elected directly by the people, and a Senate originally composed of members elected by the state legislatures.  The Seventeenth Amendment, adopted as part of Progressive reforms in the early 20th century, required direct election of senators, a significant departure from the Founders’ Constitution.  Each state, the original Constitution specified, gets two senators (this is the only part of the Constitution today that cannot be amended).

Article I, Section 8 gives an enumeration, or list, of the powers of Congress.  When compared to the anemic Articles of Confederation, which even denied Congress the power to tax, the enumerated powers were quite expansive.  Compared to the scope and scale of congressional authority today, the enumerated powers seem quaint, kind of like a powdered wig or tri-cornered hat.

“That’s all we get to do?  That’s it?”  One can almost hear the response of many members of Congress today if they were to read Article I, Section 8 of the Constitution.  Asked to cite the constitutional justification for the recent health care bill, for example, one member of Congress said he doesn’t “worry about the Constitution on this.”  Another member, the chairman of the House Judiciary Committee, claimed that the legislation was authorized by the “good and welfare clause” (he was probably thinking of the General Welfare Clause of Article I, Section 8, Clause 1)  Still others have cited the Interstate Commerce Clause (I.8.3), while a number have cited the Necessary and Proper Clause (I.8.18).

I hope that we can discuss and debate the constitutional status of the health care law as part of this blog.  Whether you’re a Republican or Democrat, for or against the law, it seems that we should all agree that for a bill to legitimately become law it has to be grounded in the Constitution.  Otherwise Article I doesn’t mean what it says, and the foundation of our liberties is left shaky and unsure.

It’s lately been said that politicians should prepare for elections by abiding by one simple rule, “It’s the economy, stupid.”  The economy is important, to be sure, but I hope that in our national debate, today we can remember most of all that “It’s the Constitution.”  We’d be stupid not to.

Wednesday, April 21st, 2010

Posted in Article I of the United States Constitution, Constitutional Scholar Essays | Edit | 138 Comments »

140 Responses to “April 21, 2010 – Article I of the U.S. Constitution – Guest Blogger: David Bobb, Director and Lecturer in Political Science | Allan P. Kirby, Jr. Center for Constitutional Studies and Citizenship | Hillsdale College”

  1. Richard says:

    This is certainly an enlightening dialogue and many of the comments are well supported. I would like to add that taxes “being applied uniformly throughout the States” is interesting because we certainly do not have a fair tax system as so many pay nothing and get most of the benefits. Our Founding Fathers never intended to have this extreme level of “vote buying” by taxpayers funds. The progressive tax we have today is applied uniformly within the states, however it is not applied uniformly among the people. Whereas a flat tax would do this. A constitutional amendment limiting the tax to less than 15% would take away the congressional power and ability to “buy votes” through entitlements. Another view might be to restrict a citizens vote in any year in which they receive an entitlement exceeding $1000.00 or some similar amount. Niether would be unconstitutional.

  2. Richard says:

    This is certainly an enlightening dialogue and many of the comments are well supported. I would like to add that taxes “being applied uniformly throughout the States” is interesting because we certainly do not have a fair tax system as so many pay nothing and get most of the benefits while a few pay the majority and are constantly asked for more. It is a path to economic destruction. I have visited several socialist and communist nations in my travels and Americans have no idea of the human suffering, death, and poverty of a controlling communist or socialist goverment that always limits the individual freedoms we take for granted. Our Founding Fathers never intended for our “tax system” to have this extreme level of “vote buying” by taxpayers funds or social engineering. Envy is one of the biblical seven sins for a good reason. We have lost our national moral compass as we pit hatred (class envy) against hard work and success. Some citizens with a lacking moral compass want to covet what thier neighbor has. The Founding Fathers wanted to remove the chains of government on the individual and let them strive for thier own happiness and dreams. Progressives were certainly instumental in removing the biblical moral teaching from our schools. The progressive tax we have today is applied uniformly within the states, however it is not applied uniformly among the people. Whereas a flat tax would do this. A constitutional amendment limiting the tax to less than 15% would take away the congressional power and ability to “buy votes” through entitlements. Another view might be to restrict a citizens vote in any year in which they receive an entitlement exceeding $1,000.00 or some similar low amount. Niether would be unconstitutional.
    The constitution also grants power to the federal government to provide for the common defense. If we have to disband the armed forces every two years we would soon be overtaken by our enimies and if Officers we appointed by the states there would be no uniformity within the military. We would have lost WWII if we had to disband after two years, ditto for the Civil War, Revolutionary War, WWI, Korean War. We gain peace through military strength by constantly training, testing, and improving weapons systems so our enimies understand the high price they would pay for trying to dominate or rule our citizens.
    On heathcare, I beleive it violates all aspects of “the Right to Life, Liberty and the Pursuit of Happiness” as unelected goverment workers will decide who and what type of care an idividual may have. (Surgery or pain pills). A citizen can no longer pursue thier individual health choices. Government can directly limit thier life and happiness. I hope this can be repealed as it will cause severe pain to citizens to watch loved ones be denied the proper healthcare because the govenment has to ration care as in all other nations that have moved to socialized government healthcare.
    I look forward to tomorrows comments….

  3. Lillian Harvey says:

    Article 1, Section 7: the process for passing legislation states “..the votes of both Houses shall be determined by yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively.”

    When House Minority Leader Boehner called for the vote of each individual to be recorded at least one week before the Healthcare vote was taken in the House, and also that night on the floor of the House again, why did the “Speaker” ignore the request or call it “out of order”? It seems to me that it is out of order for the people being represented not to know exactly who voted Yes to this bill. We know all the Republicans voted no, but not which Democrats voted yes or no. It seems to me that this tactic makes things very slippery and murky for those being represented.

    Raymond mentioned needing an amendment to force government to be open. It appears the mechanism for transparency in the votes already in place for 220 years isn’t honored and We the People are left guessing. Someone above mentioned that the devil is in the details. I think God is in the details and this is another one of them for us to look at carefully.

  4. Tammy Beard says:

    Maggie,
    Question: If “all Duties, Imposts and Excises shall be uniform throughout the United States;”
    how can there constitutionally be different income tax brackets? Doesn’t seem very uniform.

    This deals with indirect taxes, not income taxes. The indirect taxes must be the same from state to state. In 1913, the Sixteenth Amendment was passed allowing income taxes.

  5. Richard says:

    I wanted to add one thought to my earlier comment on taxes. Actually the Constitution specifically said there will be no tax on individuals (Income Tax), but the progressives worked around this by adding the XVI amendment which will come later in our readings. This Amendment was originally passed to fund WWII and who was going to vote against funds to fight Germany and Japan’s agressive war of world dominance. It was to be repealed after the War but amazingly was not and has been modified to mirror class envy and morphed into a progressive tax on those who work hard and are successful. It will be interesting to hear the history from those who know on this matter as the current administration has openly confirmed the goal of redistribution of individual wealth by the government to whim they choose. It is similar to the british crown taxing colonist hard work to support the royal elitists power and position.

  6. Gitel says:

    @Richard – I’m not sure where you got your information. The income tax was proposed in 1909 and ratified in 1913. That was before WWI, and years before WWII.

  7. Gitel says:

    Actually, I meant to say the 16th Amendment, not “income tax.” There were income taxes before the 16th Amendment.

  8. Kristine says:

    Well-framed question, Debbie Beardsley, to which I say amen! What your blog entry asks is precisely what I would like to know. And in a related sense, Party aparatus in the Houses seem to be causing we the people who are supposed to be represented to feel as though we are being completely ignored! How can this be. How can Representatives be made to represent when they do not even listen? Being only 1/300 millionth of the population and with powerful moneyed interests, how do we know OUR STAND is represented for sure? We suspect, it is NOT. That begs the questions, WHAT DO WE DO ABOUT THAT?

  9. Will says:

    Anna Marie says:
    April 22, 2010 at 12:56 am
    “… in the end we will become a stronger nation, a nation UNDER GOD!!!”
    ——–

    Taking a strict constructionist viewpoint, neither God or Jesus is mentioned anywhere in the Constitution’s text and therefore has no place in federal governance.

  10. Thomas Soyars says:

    I have to disagree with some of what R. B. McGinnis said in relation to the economy. The power to tax, though no direct, capitated or income tax, tariffs, regulation of interstate commerce were not designed to regulate the economy but to pay for the functions of government enumerated in the Constitution. How else were they to pay the debt, their own salaries and the salaries of the militia? Was the intent to fund the limited operations of government laid out in the constitution or was the goal to regulate the economy?

    Another item relates to the quote relating to the KATZENBACH v. McCLUNG, 379 U.S. 294 (1964) case. The court ruling said “Confronted as we are with the facts laid before Congress, we must conclude that it had a rational basis for finding that racial discrimination in restaurants had a direct and adverse effect on the free flow of interstate commerce….” Note the term rational basis. It was not decided on a constitutional basis but on what they could rationally support. The court has continued to swing on the issue of what is allowed under the commerce clause. Cases have been decided that operating a steamship on a river within one state is interstate commerce and subject to regulation. Minimum wage, child labor, and agricultural relief laws were all found to be items that the U.S. government had no right to regulate under the commerce clause. Mining, liquor, oil and electrical production were all deemed to be outside the commerce clause while meat production and wheat were found to be within (production of wheat for one’s own consumption could be subject to national quotas because that could impact national wheat prices). After, Gibson v. United States, 166 U.S. 269 (1897) the court rarely ruled on the commerce clause. During the New Deal the court changed the focus of how the court viewed commerce and what was to be regulated. A central issue was whether the courts or the legislature should decide what commerce is and the courts began deferring to congress saying that determining whether legislation impacted commerce was a legislative function. At question was whether it was more appropriate to address the issue through the courts or the ballot box and they basically fell on the side of the ballot box, thereby abdicating their responsibility to be a check and balance over congress. Finally, the Supreme Court in United States v. Darby Lumber Co., 312 U.S. 100 (1941) said that the 10th Amendment is but a truism and was not considered to be an independent limitation on Congressional power, thereby essentially ruling that congress is not limited by the Constitution.

    I agree with the decisions of the court in the cases of Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964) and Daniel v. Paul. 395 U.S. 298 (1969) but not based on the commerce clause. For that, I go back to the preamble and rely on establish Justice. Slavery, the treatment of Native Americans, and Asians Americans during World War II and

  11. Thomas Soyars says:

    Debbie, there is no prohibition on the President proposing legislation to Congress or lobbying for specific items. the Constitution prohibits the President from passing legislation or acting as a judge over it other than by veto. The problem arises when one party holds the presidency and both houses of congress by a super-majority. In that case the president can propose legislation and have limited resistance.

  12. Ann says:

    How are the classes for Senators determined? Is it by State? My State has 1 class I Senator and 1 Class 2 Senator. Does that ever change? Am I correct in assuming the class only has to do with making sure only 1/3 is up for re-election at a time? They all serve 6 years regardless of class right?

  13. I must confess that I’m going to have to reread after I finish this 90/180. I’ve read the Amendments, but this is the first time I’ve read the Articles of the Constitution. Apparently I’m not the only one having a little trouble with the double negatives. I’ve been telling everyone I know about this, hopefully they will be able to go back on this Web site to the days they haven’t read to catch up. I love the dialogue and the experts input on the Constitution. I have just recently purchased “Original Intent” by David Barton I haven’t read it yet I’m trying to keep up with all the reading recommendations. I do know that “America’s God and Country” by William Federer is a must have, I love this book. It is an Encyclopedia of Quotations from our Founding Fathers and others. There is no question what the intent of the Constitution was and that it we were designed to be a Christian Nation.

  14. Thomas Soyars says:

    One last comment on commerce, in Gonzales v. Raich (previously Ashcroft v. Raich), 545 U.S. 1 (2005), the U.S. Supreme Court held that marijuana gone at home for personal use was subject to the Commerce Clause. Justice Thomas dissented saying “Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything – and the federal Government is no longer one of limited and enumerated powers.”

  15. Robert Shanbaum says:

    The question was raised as to whether the health care reform bill, as a bill requiring appropriations (whether that makes it a “bill for raising revenue” notwithstanding), did not have to originate in the House.

    The question may be mooted by the fact that it did originate in the House, having been introduced as H.R.3590 on 9/17/2009 by Rep. Rangel – even though it eventually became known as “the Senate Bill.”

    But there is an interesting Constitutional question here: the original contents of H.R.3590 were completely replaced by amendment in the Senate. So, did the bill “originate in the House?”

  16. Debbie Beardsley says:

    Thomas,
    It just seems to me that by the President strong arming members of Congress or bribing them to vote the way he wants he is in effect legislating. Isn’t Congress supposed to represent the people and not the President?? Once it is submitted to him he can then decide to sign it or veto it but until it gets to him he should keep his hands off.

  17. Spider says:

    I have seen a few comments on the 17th Amendment, and thought I might expand on it here, as well as give a couple of reasons why I believe it should be repealed. We will get into the Amendments when we read them on Monday, April 26, but I wanted to include this here, as it pertains directly to Article 1, Section 3, Clause 1.

    James Madison explained States representation in the Federal Government as such:

    “Whenever power may be necessary for the national government, a certain portion must be necessarily left with the states, it is impossible for one power to pervade the extreme parts of the United States so as to carry equal justice to them. The state legislatures also ought to have some means of defending themselves against the encroachments of the national government. In every other department we have studiously endeavored to provide for its self-defense. Shall we leave the states alone un-provided with the means for this purpose? And what better means can be provided than by giving them some share in, or rather make them a constituent part of, the national government?”

    At the time the Constitution was written, U.S. Representatives were to represent the people and were to be elected by the general population of a state by popular vote.

    U.S. Senators were to represent the States and were to be elected by the State Legislatures. From Wiki: “It was believed that while an unqualified candidate might win a popular-vote majority through demagoguery or superficial qualities, the legislature, which could deliberate on its choice, and whose members had been selected by their constituents and had experience in politics, would be safe from such folly.”

    The 17th Amendment took away the States representation by requiring that U.S. Senators be elected by the general population of a state, effectively reducing them from an equal partner with the Federal Government to, at best, another Representative, and at worst just another lobbyist, vulnerable to special interests influence, which has resulted with the loss of State Sovereignty and States’ Rights.

    There were two main reasons the 17th Amendment was adopted in 1913; One was the deadlock of State Legislatures when electing U.S. Senators. The other was the corruption of the State Legislators.

    One possible protection from dead-locked State Legislatures is the provision that if a State Legislature does not fill a vacancy or elect a U.S. Senator within say, 30 days for example, the Governor shall appoint the U.S. Senator.

    Our protection from corrupt State Legislatures are open caucuses, campaign disclosure statements, term limits, and the fact that we now have highly visible public information, freely accessible with the World Wide Web.

    Thanks for letting me expand on this subject. Tell me what you think, and keep up the great discussion!

  18. Robert Shanbaum says:

    @Gitel, a minor correction: there were indeed income taxes prior to the XVIth Amendment, from 1862-72, and again in 1894-95, when taxes based on income derived from property (interest, dividends, rents) were ruled unconstitutional by the Supreme Court in Pollock v. Farmer’s Loan & Trust (by a 5-4 vote!).

  19. Sharon Pharr says:

    It seems to me so far, that the Congress was to hold a few specific roles and jurisdictions, and the people, then the states everything else. Things are turning upside down. I think we should repeal the 17th amendment, return the selection of Senators to the states, and expand the 22nd Amendment, to include restricting terms of the members of Congress. The wisdom of that provision is shown in the career politicians that now dominate Congress, with power empires, and inflated influence. This would also attract talented people who have successful careers in other areas to serve. I also believe that in returning power to the states and local jurisdictions, it would be easier to weed out the potentially corrupt.

    I have a question, if the Healthcare Bill coerces a citizen to buy insurance under penalty of fines, and enforced by the IRS, doesn’t that make the insurance payment a form of taxation, even though the money goes to a 3rd party, the insurance company?

  20. Philip Thorrez says:

    I’m new at blogging and if my protocols and forms are incorrect, please excuse me:
    I realize I’m a bit late to this reading but have to ask:
    @Thomas Soyars said: “Finally, the Supreme Court in United States v. Darby Lumber Co., 312 U.S. 100 (1941) said that the 10th Amendment is but a truism and was not considered to be an independent limitation on Congressional power, thereby essentially ruling that congress is not limited by the Constitution.”

    This is the scariest comment I’ve ever heard and I wonder: has there been much further testing of this ruling and how entrenched in precedent is it? I mean “a truism”?! How much clearer does it need to be that this amendment was MEANT to be a restriction of federal power.

  21. Spider says:

    @Philip Thorrez: Welcome to the discussion – better late than never. Your “protocols and forms” are just fine. Leaving comments in a public forum such as this is just like any other public interaction; be polite and civil, and you’re way ahead of the game.

    As to your question, might I suggest taking a look at West’s Encyclopedia of American Law for a comprehensive overview of the Supreme Court’s various interpretations of the 10th Amendment through history.

    It’s really pretty stunning to realize just how often the 10th Amendment, something Thomas Jefferson once described as “the foundation of the Constitution,” has been virtually ignored or trivialized.

    I truly hope the upcoming challenges to the President’s health care reform law will once again put some more authority back into the 10th Amendment. I’ll probably be disappointed, but one can ‘hope,’ right?

  22. Anthony Viola says:

    Will says “Taking a strict constructionist viewpoint, neither God or Jesus is mentioned anywhere in the Constitution’s text and therefore has no place in federal governance.”

    You missed ths: “In the Year of our Lord one thousand seven hundred and eighty seven..”

  23. AllisonW says:

    Interesting fact I thought to share:

    According to Article I Section III, the Vice President, President of the Senate, can vote on any piece of legislation whenever the members of the Senate are “equally divided.” So whenever the vote is split 50-50, the Vice President can essentially decide the fate of the bill.

  24. […] April 21, 2010 – Article I of the U.S. Constitution – Guest Blogger: David Bobb, Director and Le… […]

  25. Taylor Michael says:

    A very intriguing paragraph I discovered in the first article is the last paragraph in Section 9.
    It says ;

    “No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State”

    What I find so interesting about the subject is the fact that America already declared itself independent from Monarchal England, however the founding fathers make sure that we as a country do not associate ourselves at all with any Monarchy, and if someone does, than the United States shall not recognize it at all, and they will not accept any “present … of any kind whatever, from any King, Prince, or foreign State”, thus putting the icing on the cake, so to speak, of total detachment from any kind of English Monarchal society.

  26. Kristine says:

    I would like to understand the electoral college better from Article 1, section 2.

    I realize we are now beyond that, but it is not clear to me if we directly elect our representatives as I thought we did, or if electors are doing the electing .

    If anybody has insights and links, please reply.

    Thanks.

    Kristine

  27. Kristine says:

    I figured it out. Article 1, Section. 2 first paragraph meaning of Electors refers to a state’s voters and not electors in the electoral college for the presidential elections. That is what I thought; however, for a while there I thought I might have been wrong all my voting life. I’m relieved to have this cleared up and it was good to re-read Articles 1 and 2.

  28. Bob Greenslade says:

    Kristine-hope this helps.

    What are the constitutional provisions for the electoral system?

    The electoral process is set forth in Article II, Section I, Clauses 2-4 of the Constitution for the United States. Clause 3 has been superseded by the 12th Amendment as ratified by the several States in 1804. Provisions of the 12th Amendment have been superseded by the 20th Amendment as ratified by the States in 1933.

    Do the American people vote directly for a President and Vice President when they cast their ballot?

    No. When the American people cast their vote in a presidential election they are actually voting for individual within their State called an “elector.”

    Who are the electors?

    The electors are representatives just like the members of Congress. Unlike members of Congress who are elected for a specific term of years and cast numerous votes while in office, electors perform a single function once every four years. They are entrusted with the responsibility of voting for the President and Vice President of the United States.

    How are the electors chosen?

    The legislature of each State is authorized by Article II, Section I, Clause 2 of the Constitution to prescribe the mode for appointing its electors. State election laws generally entrust that duty to the various political parties because each party has a slate of electors pledged to their candidates. Thus, if a State has five political parties qualified for the ballot, it will have five separate blocks of electors―one block for each political party.

    How are the electors in each State chosen to vote?

    The electors chosen to vote for each State are those of the political party that wins a plurality of the popular vote within the State. For example. If an Independent Party candidate wins the popular vote in California by one vote, then that party’s slate of electors are elected to vote for the State of California. In Maine and Nebraska, two electors are chosen at-large by the statewide popular vote and the rest are selected by the popular vote in each congressional district. This allows for a split slate of electors to be chosen in those two States.

    In the event of a tie in a State’s popular vote, the laws of that State would determine the procedure for breaking the tie. If there was still a tie after a re-count, there would probably be a run-off election to determine the winner.

  29. Lillian Harvey says:

    Thomas, Philip & Spider, well said! I appreciate the real push back to what you’ve all implied is the trivializaion of the 10th Amendment. Almost half of the States are involved at this time, 42%. In an earlier post, I was reacting to these readings by thinking a Constitutional Convention was needed to solve some of the problems. Now, I feel that some amendments may need to be repealed and others have their language clarified to reflect life today, like the recess appointments clause. But even allowing a small opportunity for any group to do away with this incredible document is inconceivable to me. No convention for sure. But calls for Constititutional language that fortifies Amendments like the 10th, oh yes! I love that our clarifications and corrections are recorded into the document as amendments. As humans, we make mistakes, learn and grow. This amazing document records our growth as a free society, correction & forgiveness of mistakes included. The Federal gov’t has taken powers from the States never intended for it. No matter how long it takes, we can’t give up the fight to re-fortify the 10th Amendment. Enough is enough.

    I love the phrase, think globally and act locally. It is a modern day sound bite for James Madison’s eloquent explanation of where power really resides in a free society. A state or community problem may become part of the national narrative, but the way to resolve it works best as locally as possible. Let each community see the problem through its own special lens, apply meaningful solutions and the people are served well. If a national element is needed, add an amendment to the Constitution. It takes time to do that and, if the locality can’t resolve the problem themselves, the final amendment will help the process along.

    Taylor, I feel your post underscores the “kick in the gut” reaction most people have when they see any of our Presidents bowing to kings or foreign rulers. They represent the United States of America – We the People. We the People do not bow to kings. We do not serve their will. Americans shake hands in greeting. If these kings do not want to shake hands, fine. But no bowing in our name, thank you very much.

    Allison, great question! If a bill must be passed by 2/3 of the Senate, how is a tie ever significant? The bill passes or it doesn’t. Too simple?

  30. Bob Greenslade says:

    Philip Thorrez-the reason the 10th Amendment is a truism can be found in the words of James Wilson.

    In October of 1787, in a speech at Independence Hall, Wilson, a Federalist from Pennsylvania, explained the proposed constitution and answered some of the criticisms being leveled against it. In his speech, Wilson succinctly stated why a bill of rights had been omitted from the proposed constitution. He also explained the system of limited government that would be established if the document was ratified:

    “It will be proper…to mark the leading discrimination between the State constitutions and the Constitution of the United States. When the people established the powers of legislation under their separate governments, they invested their representatives with every right and authority which they did not in explicit terms reserve…if the frame of government is silent, the jurisdiction is efficient and complete. But in delegating federal powers, another criterion was necessarily introduced, and the congressional power is to be collected, not from tacit implication, but from the positive grant expressed in the instrument of the union. Hence, it is evident, that in the former case everything that is not reserved is given; but in the latter the reverse of the proposition prevails, and everything that is not given is reserved.

    This distinction being recognized, will furnish an answer to those who think the omission of a bill of rights a defect in the proposed constitution; for it would have been superfluous and absurd to have stipulated with a federal body of our own creation, that we should enjoy those privileges of which we are not divested, either by the intention or the act that has brought the body into existence. For instance, the liberty of the press…what control can proceed from the Federal government to shackle or destroy that sacred palladium of national freedom? * * [T]he proposed system possesses no influence whatever upon the press, and it would have been merely nugatory to have introduced a formal declaration upon the subject—nay, that very declaration might have been construed to imply that some degree of power was given, since we undertook to define its extent.”

    Wilson, who had unsuccessfully advocated a strong national form of government in the Federal Convention, clearly understood the system of limited government that would be established by the proposed constitution. Since the federal government would be granted limited enumerated powers, every power not granted would be denied irrespective of whether the document contained a bill of rights.

    Thus, even if the 10th Amendment, which was part of the Bill of Rights, had not been adopted, the principle, as stated by Wilson, that “everything…not given is reserved” would still be in operation-just not enumerated.

    The Amendment is a re-statement and affirmation of the principles of limited government and enumerated powers. They exist independent of the 10th Amendment.

  31. Robert Shanbaum says:

    @Lillian – Here’s an historical note that you may find interesting, since you mentioned shaking hands. After having been inaugurated as president, Washington refused to shake hands, thinking it beneath the dignity of the office.

    Also, for a bill to finally pass the Senate does not require a 2/3 vote – the procedural step that requires a 2/3 vote is to end debate on a motion (called “cloture”, a feature of the rules of the Senate, which you now know are left up to the Senate by the Constitution), which is a necessary step that precedes an actual vote on whether the motion shall be adopted or rejected.

    Yesterday, for example, in a vote to end debate on a motion to allow a financial reform bill to proceed to the floor (which is itself a required procedural step) the yeas came up short of the 60 votes required by the rules… so technically, I guess you could say that the debate on that motion will go on until the end of the current session, at which point, the motion vanishes, having never been directly voted upon.

    As mentioned, the only relation of Congressional rules to the Constitution is that it explicitly leaves them up to the each House. But I rather doubt that any of the participants at the Philadelphia Convention would have aniticpated a rule effectively requiring a supermajority in the Senate.

  32. Robert Shanbaum says:

    @Lillian – I neglected to mention Washington’s preferred mode of greeting, given that he did not shake hands.

    He bowed.

  33. Debbie Beardsley says:

    Re: Anthoney Viola – I do not think there was any reference to God intended by placing Year of our Lord before a date. It was a common term used at the time and is included in the Julian and Gregorain Calendars to reference the epoch after Jesus was born. Anno Domini is the Latin way to say the same thing.

    Stop looking for religious reference where none was intended. Thats how we get in trouble and move very far away from the Constitution.

    I fully believe the founders intent was not to support a specific belief or church but to allow everyone the freedom to choose what they belive in.

  34. yguy says:

    ‘…the 10th Amendment is a truism…’

    ‘Thus, even if the 10th Amendment, which was part of the Bill of Rights, had not been adopted, the principle, as stated by Wilson, that “everything…not given is reserved” would still be in operation-just not enumerated.’

    Similarly it could be argued that Congress would have no authority to legislate against freedom of speech and so on had the first amendment not been ratified, but I don’t think I’d call it a truism; and if Justice Marshall’s observation that “[i]t cannot be presumed that any clause in the Constitution is intended to be without effect” is accurate, I think we may rest assured that the framers of the tenth amendment considered it as necessary as the other “declaratory and restrictive clauses” in the Bill of Rights.

  35. JoeSwiss says:

    Art 1, S 10: No state shall, without the consent of Congress, … or engage in War, unless actually invaded …

    This was a point I had missed.

    First, it seems a state may engage in war with the consent of Congress.

    Second, it seems a state may engage in war without the consent of Congress once it has actually been invaded.

    Seem to be relevant points in the current contest of opinions over Arizona’s late legislative actions. Arizona is currently under invasion by illegal aliens.

  36. al williams says:

    Can anyone explain article 1 sec 9 para 4
    “No Capitation, or other direct, Tax shall be laid,unless in Proportion to the Census or Enumeration herein before directed to be taken.”

  37. Susan Craig says:

    Yes they did not want to tax incomes (head tax).

  38. al williams says:

    So,was this section repealed by the 16th amendment?

  39. Ralph T. Howarth, Jr. says:

    Will says:
    April 22, 2010 at 1:59 pm

    Taking a strict constructionist viewpoint, neither God or Jesus is mentioned anywhere in the Constitution’s text and therefore has no place in federal governance.
    ————
    True; but a strict constructionist must be thorough and construct from all the organic documents declared by the First Congress in the midst of passing the Bill of Rights.

    They are:

    1) The Unanimous Declaration (of Independence)
    2) US Articles of Confederation
    3) The Northwest Ordinance
    4) US Constitution

    Such can be found reproduced here and is at the very beginning of the US Code 1.
    http://uscode.house.gov/download/pls/organiclaws.txt

    The very first congress instituted the Organic Laws declaration as a reference of the founding documents of the US as a collection foundational proofs of where rights, laws, and governance comes from. The US Constitution alone does not stand alone and provide enough information to describe what the legal basis of the document stands on. Legal basis did not just appear out of thin air but is predicated on legal terms and underpinnings found in the Constitution that correlate to the English Common Law and the history of constitution writing.

    Inspection of the Organic Laws finds the following words concerning religion and morality:

    Year of our Lord (Constitution, Articles, Ordinance)
    Divine Providence (Declaration)
    Creator (Declaration)
    Nature’s God (Declaration)
    Appealing to the Supreme Judge of the world (Declaration)
    the Great Governor of the world (Articles)
    Religion (Bill of Rights, Articles, Ordinance)
    Establishment of Religion (Bill of Rights) [aka: state run church]
    Morality (Ordinance)
    Mode of worship (Ordinance)
    Religious sentiments (Ordinance)
    Blessings of Liberty (Constitution) [blessings: lit. “anoint with blood”]
    Good Behavior (Constitution, Ordinance) [syn. “morality”]
    Common law (Bill of Rights, Ordinance) [that law contains many Biblical references]

    Remember also, that some states would not ratify the Constitution without assurances of a bill or rights, which includes free exercise of religion. If you strictly construct just from the text of the Constitution alone without the amendments, you can rest assure that the Constitution would not have been ratified and be moot. The Bill of Rights had to be pushed for ratification quickly to head of a call for another constitutional convention that would have rewritten the constitution. Had that movement been successful, then it may have happened that the original would have been another anal to the Organic Laws and we have a different constitution today.

    So for a strict constructionist to stop right at the Constitution and observe Jesus and God is not mentioned, and to possibly excuse Lord as being a cultural custom, and not consult supporting text, is akin to taking out an insurance policy and saying that any riders, insurance laws, and governing policies have no place in insurance governance and insurance claims.

  40. Ralph T. Howarth, Jr. says:

    @yguy — James Madison, and other Federalists, contended that the Constitution did not need a bill of rights because it was strictly a positive law document: what the federal government can do. He contended that introducing a negative law document such as a bill or rights: what the federal government cannot do, would wiggle leave room for creative inventions of new powers of government by implication and completely bypass the amendment process.

    @al williams says: so,was this section repealed by the 16th amendment?
    –Capitation tax is a head tax…not exactly an income tax. Such was more akin to a poll tax or census tax. A direct tax essentially was any tax on property like real estate or durable goods; hence the federal government does not do property taxes; but such was not entirely prohibited. If the federal made a capitation or direct tax scheme that was proportional to actual populations in a state, then the federal could lay such a tax and it would be regardless of a person’s level of income. When the income tax amendment came along, it removed the census proportion requirement on that form of tax as it would be construed as a direct tax on property being income considered as a form of your property or estate. For perspective: an indirect tax would be akin to a sales tax as a tax on commerce.

/0 Comments/by

Article I of the U.S. Constitution – Janine Turner

, , , , , , , ,

Howdy from Texas! What a great first day of blogging. How exciting to be having a national conversation about the reading of the U.S. Constitution. Don’t forget to read it with your kids at the dinner table, in the car, before bedtime! Perhaps they will then want to enter our, “We the People 9.17 Contest” for kids.

I want to thank David Bobb for being our first Guest Blogger. We have the link to his site at the Kirby Center on our site and they offer a fabulous five hour seminar about the Constitution that is broken down into 45 minute segments.

I get such a thrill when I read the Constitution. Our forefathers had such vision and  such wisdom! The Preamble is masterful and within it lies thoughts to ponder. Some relevant phrases today are: “promote the general welfare.” It does not say “specific welfare of every individual.” We are given liberty to pursue our welfare as we wish.

This leads to the second relevant phrase: “secure the Blessings of Liberty to ourselves and our Posterity.” Well, let’s see.. the word Blessings is in there. Blessings are not from “government” but from God. We then have the word, “Liberty.”  How does one define Liberty? I looked up the word, “Liberty.” Here are two of the definitions:  “immunity from arbitrary exercise of authority: political independence.” Another definition is: “freedom of choice”; “liberty of opinion”; “liberty of worship..” If we are to take an inventory of our immunity form arbitrary exercise of authority and/or political independence today, then I think it is safe to say that these liberties are being infringed upon. How about freedom of opinion? It would certainly appear that the negative labeling of the Tea Party is an attempt to stifle freedom of opinion. How about freedom of worship?  What about the child in Massachusetts who was taken out of class and sent to the psychiatrist because the child drew a picture of the cross of Jesus?  Thus, in the Preamble, alone, I see many aspects that are both relevant and endangered.

Article I Section 8 drew my fascination. Our founding fathers intended for the two Senators from each state to be chosen by the State Legislature. The Senate was to be the State’s house and the House of Representatives the People’s House. This was changed, as we read today, by the XVII Amendment in 1913  – during the Progressive era. This was not our forefather’s intention. One has to ask  would the healthcare bill have passed today if the Senate was operating within it’s original intent – the Senate representing the States? Somehow, I do not think so.˜

The other clause that captured my attention was in Article 1 Section 8 Clause 8: “to promote the Progress of Science and useful Arts, by securing for Limited times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” I think that this security of ownership gave people the desire and passion to spread their wings and fly. This clause gave Americans the burst of inventions and creativity that made America great. Promoting progress and giving the Inventors exclusive rights – in other words- giving the people their Liberty and keeping government out of their affairs – led to the fulfillment of human genius. Big government, the kind we face today, stifles the spirit of democratic ingenuity and deflates desire.

The list goes on and the study is broad. Yet, I am so grateful to have this opportunity to be reading, blogging, thinking about the U.S. Constitution with you all. I thank you for your participation. I look forward to hearing from you tomorrow and spread the word!

Blessings,

Janine Turner

April 21, 2010

Posted in Article I of the United States Constitution, Constitutional Essays by Janine | Edit | 10 Comments »

10 Responses to “April 21, 2010 Article I of the U.S. Constitution – Janine Turner”

  1. Jeff Phinney says:

    Last year I bought and began reading “The Words We Live By – Your Annotated Guide to the Constitution” by Linda R. Monk.

    One of the passages I highlighted was a quote by Judge Learned Hand during WWII that emphasizes that the constitution depends on the citizens for its support:

    “I often wonder whether we do not rest our hopes too much upon constitutions, upon laws, and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it”

    Miss Turner, thank you for the opportunity to allow us citizens to learn and hopefully support our Constitution and the documents that are the foundation of this great nation.

  2. Kristine says:

    Good of you to point out in your blog the distinction of who elects members of each house (originally): state legistlators to elect Senators and the people to elect Representatives . I read but did not register the import of the words written.

  3. Robert Shanbaum says:

    It is certainly interesting to see how a given passage (of any kind, I suppose) can be read so differently by different people. For example, Article I, section 8, paragraph 8 is usually read to empower the federal government to award copyrights and patents – both of which are an intrusion of the government into what would otherwise be an unregulated marketplace for intellectual property. That hardly can be said to constitute “keeping the government out of [the people’s] affairs.” On the contrary, like all the grants of power in the Constitution, it is a grant of power to the government to establish and enforce laws intended to produce a civil society that promotes “life, liberty, and the pursuit of happiness”, or if you prefer, the “general welfare”, better than one that lacks such laws, or such a government.

  4. Dale Pettit says:

    Shame on all of us for neglecting our citizenship responsibilities to the United States Constitution. We have, over the past 100 years or so, been willing to allow our so called elected leaders to deviate from the true meaning of Liberty and Freedom! We could of course, claim we were busy making a living, busy with our own lives. Yes, fiddling while “Rome” burned or the “Titanic” sank etc.

    The media of the day, News Papers previously, TV comentators later and those same so called elected governement officails were and still do believe that the “common citizens” are not intelligent enough to govern ourselves. Now, the internet has opened up the shared discovery of this responsibility at the speed of light.

    We Trusted for too long our responsibilities to others. This program of self study of the constitution demonstrates the importance and true nature of the US citizens. Congratulations for a great spark of ingenuity, may it flame across America and the world.

    Thank you!

  5. Susan Craig says:

    It was originally thought that the Senators would be the advocates for the State the represented as a whole while the Representative proposed to be the populist advocates.

  6. John says:

    the 16th amendment my not have been ratified properly ???? this needs more investagtion

  7. Louis Palermo says:

    The Constitution must be understood as a catalyst to the events that preceded it! The Constitution is the Symbol of the United States- a sacred symbol. It is a symbol for liberty and justice. It is our attempt to limit its ability to be victimized; to protect itself from itself. The power behind the Constitution is that it limits government and protects our most sacred rights!
Article I creates legislative power and vests it in Congress. It creates national government and separates power. It accomplishes this by dividing power between the federal and state governments. This is Federalism in its most fundamental state. The Constitution may only be amended and not changed by statute. This important to understand because it conveys the history of this very instrument and how it was created in the first place. It was the founding father’s insight that was desired to be governed under it. 
Article I specifically drafted by the forefathers to create ’specific’ powers of Congress. Not powers of ’statute’ which could be altered by a tyrannical government. We need to keep the separation of powers- and the Constitution is the instrument that has stood the test of time and kept our most cherished values. We should continue to be suspicious by powers or persons that doubt the power of the Constitution. There is reason why those in power are required to take an oath to uphold the Constitution and that is primarily to limit any change by the ‘political’ majority. That is to keep a system of checks and more checks. Article I is the system of checks and balances that accomplishes that. 
So, furthermore, Article one is relevant today as it was 200 years ago to Keep the Power balanced! So the final issue is how the Constitution goes about keeping the balance. This ‘balance’ manifest itself through ‘interpretation’ of the very instrument-the Constitution.

  8. R. B. McGinnis says:

    Article I Section 8 drew my fascination. Our founding fathers intended for the two Senators from each state to be chosen by the State Legislature. The Senate was to be the State’s house and the House of Representatives the People’s House. This was changed, as we read today, by the XII Amendment in 1913 – during the Progressive era. This was not our forefather’s intention. One has to ask would the healthcare bill have passed today if the Senate was operating within it’s original intent – the Senate representing the States? Somehow, I do not think so.˜

    Ms Turner, With all due respect you may wish to review the historical context in which the XII amendment was adopted. Contrary to the opinions of Glenn Beck and other revisionist historians the early 1900s under the leadership of Presidents Roosevelt and Taft was an extremely necessary readjustment the American society. As a result of excesses of the robber barons in creating the cartels and trusts the interests of the ordinary citizens of the United States were protected from rapacious greed by the adoption of laws such as the food and drugs legislation providing for food inspection and safe medicine. All you have to do is read the “Jungle” to see the excesses of meat packing industry in the way immigrant labor was treated and the tainted meat that was being sold to the public. The creation of the Interstate Commerce Commission protected the interests of American framers from the exorbitant freight rates charged by the railroad cartels.
    I would also suggest that you make self of aware of the history of Montana, my state, regarding the election of William A. Clark as one of the first Senators of Montana. He essentially bought the Montana Legislature to secure his election. He bribed each legislator on the average of $12,000 per vote. The election was so fraudulent that the Senate refused to seat him. I will be happy to provide you with several historical references to this event. But, this blatant act of fraud was the major impedance for the adoption of 12th amendment.

  9. Sean Montgomery says:

    Janine, I heard you and about this on Bill Bennett Monday morning, and I’m so glad I did. My eight-year-old wrote down on his to-do for today to “Read Constitution first seven articles” which I printed for him. We will be discussing each Article each night at the dinner table so the whole family can benefit.

    God bless you.

  10. yguy says:

    “The Preamble is masterful and within it lies thoughts to ponder.”

    I’d go a lot farther than that. I’d say the Preamble is to the rest of the Constitution what the Two Great Commandments are to Mosaic law, which is to say any act or law which is a hindrance to the objectives in the Preamble is unconstitutional.

    I think a good example of this is Lincoln’s suspension of the Great Writ during the civil war, an act thought by many to be unconstitutional, but evidently deemed necessary by Lincoln to preserve the Union. Assuming he was correct, one only need look at Zimbabwe to reasonably surmise that the consequences of his failure in that regard would have been grim at best and horrific at worst.

/0 Comments/by

Article I of the U.S. Constitution – Cathy Gillespie

, , , ,

What a fantastic conversation we have going on the first day of the 90 in 90 Blog! It is fascinating to scroll through the comments, and see how knowledgable you all are!

We have received several emails from teachers who are assigning participation in the reading and blogging as either course requirements or extra credit! We welcome students, children, parents, and families.  And we remind all young people grades K-12 to enter our We The People 9.17 contest!  We need your entertaining short films, PSA’s, cool songs, thoughtful essays, and younger kids, we look forward to your poems and holiday cards!

Thank you especially for making the effort to answer each other’s questions!   Many of you have made suggestions for improving the Constituting America website and blog.  We take your ideas seriously, and appreciate you taking the time to share them.

It is late, and I have been driving all day on a quick trip up north and back, but I wanted to share a few thoughts before we turn our attention to Article II in the morning!

It is no accident that the United States Constitution begins with the words, “We the People.”  It is also no accident that Article I sets out the structure and  legislative powers of the  U.S. Congress.  The U.S. Congress, and especially the U.S. House, are the governmental bodies closest to the American people.   By beginning with the words “We the People,”  and placing the Congress in Article I, our United States Constitution leads with the most important element of our government – us, the people.

I worked as a staff person in Congress for many years, and my former boss, Congressman Joe Barton, was fond of pointing out that the U.S. House of Representatives is the body of government closest to the people.  While Elections every two years may cause Members of Congress and their staffs to feel they are perpetually engaged in a never-ending campaign, the two year term of office keeps U.S. House members accountable to the people who elect them.  And if they stray too far from the will of their constituents, the voters have a frequent opportunity to express their displeasure.   It is the beauty of the system described in Article I that allows the people a mechanism to express their approval or disapproval in a timely way.  The system only works, though, when “we the people” are educated, engaged, and motivated to exercise our rights, especially our right to vote.

I am looking forward to our journey through the U.S. Constitution and the Federalist Papers together! I am already learning a great deal from the blogs posted over the past two days.  Please spread the word on Facebook, Twitter, and forward our website link via email.  We want to create as large a national dialogue as possible about our founding principles! Thank you again for your participation.  See you tomorrow!

Blessings,

Cathy Gillespie

April 21, 2010

Posted in Article I of the United States Constitution, Constitutional Essays by Cathy | Edit | 5 Comments

5 Responses to “April 21, 2010 Article I of the U.S. Constitution – Cathy Gillespie”

  1. Gitel says:

    I’m really impressed by how many people are really interested in learning about our Constitution. In some ways I think the Health Care Bill was a good thing. It finally woke people up to what has been going on in the US for many years.

    Maybe now that people realize the problems with the elected officials, they won’t be so quick to vote for “the lesser of two evils” and realize there are other people out there who want to uphold the Constitution. Maybe now they will look a little closer at the candidates, and their records, before voting.

    I am, at long last, hearing what many of us have been saying for decades. The Constitution has been trampled on, and this has been done because most people didn’t care enough to learn the Constitution and pay enough attention to what their government was doing.

    We can only hope that it isn’t too late.

  2. Alysoun Eversole says:

    Cathy, I could not agree more with you paragraph 6. What are your thoughts on term limits?

  3. Raising the question on the need of term limits gives rise to other questions that need to be answered. There is an organization GOOOH which has a plan to replace all 435 US House Members with ordinary citizen legislators who have been chosen by citizens from their own Congressional District. The Candidate thus chosen signs a contract with the congressional district citizens to email no more than two terms (may be expanded to three terms – under discussion). In addition, the candidate will not raise any money (funding for the campaign will be by the members of GOOOH), will not have any Party pressure, and will not beholden to Lobbyists.

    Over the years, we have fallen into the trap of re-electing 95 percent of incumbents to office of the House. It is time we have other choices for our vote. The day of career politicians must come to an end.

  4. Gregory Boyle says:

    The Constitution has been effectively removed from our government. it remains only in the hearts and minds of those Americans who cherrish what this country once stood for. I have friends and family who proudly served this nation in the armed forces. They fought, bled and died to protect this nation and the Constitution that they swore an oath to. It is now time for the citizens of this nation to put up or shut up. If we do not stop complaining and move to action then the greatest nation the world has ever seen will cease to exist in our lifetime. We expect our soldiers to fight and die for all the freedoms most of us take for granted. We also expect them to refuse to obey illegal orders. The current administration has passed and will pass, more legislation that is in direct contradiction to the United States Constitution. These laws, will in effect, issue orders to be followed by the citizens. Now it is time for We The People to do that which we expect from our soldiers. Refuse to comply. The states need to assert their Tenth Amendment power by passing Enumerated Powers legislation. As more states take a stand and limmit federal power within their borders, we will get the changes we seek in Washington D.C. As long as we continue to fight this battle on the terms that have been laid down by Washington, they have the advantage and victory will remain beyond our reach. The time has come for the American civilian population to prove that we deserve all the sacrifices we have expected and accepted from those who have served throughout our history. Are we willing to get off the bus and actually take a stand, or will we just hold signs until it is all gone?

  5. Term limits seem the antidote to anaccumulation of improper power.Power has the ability to corrupt and these life time Senators and Conressmen are a blith on “we the people”.Their arrogance is alarming and indicates the dangers we have fallen into while we were sleep walking. This health care Bill has set off many many alarm clocks. Thank heavens.

 

/0 Comments/by