The Words We Live By
by
Linda R. Monk

Part I: The 1789 Constitution of the United States

Page Contents

Separation of powers, & checks and balances

Stated objectives of Constitution

Congress

The President

Supreme Court & Judiciary

Full faith & credit

Constitutional Amendments

Federal supremacy

Ratification

FUTURECASTS online magazine
www.futurecasts.com
Vol. 7, No. 4, 4/1/05.

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Introduction

Separation of powers, and checks and balances:

  "Government must be administered by men," James Madison famously pointed out, "and men are not angels." For free peoples, popular suffrage is the primary control over government, "but experience has taught mankind the necessity of auxiliary precautions."
 &

 

"We must never forget that it is a constitution that we are expounding."

 

The Constitution provides the broad outlines of government power.

  The nature of the Constitution of the United States was summed up by John Marshall, the most prominent of the early U.S. Supreme Court Chief Justices. "We must never forget that it is a constitution that we are expounding." It is not a legal civil code concerned with every small detail, but instead provides the broad outlines of government power. This is the source of the strength and endurance of the Constitution. It realistically leaves to future generations the interpretation of its provisions and their proper application to ever-changing circumstances.
 &
  These and many other illuminating details explaining the Constitution and its context are included by Linda R. Monk in "The Words We Live By: Your Annotated Guide to the Constitution." The book is not a legal tome. It is devoid of legal nuance and arcane details. Instead, it is a marvelously accessible guide for academic students and the intelligent lay reader. It succeeds in providing some flavor of the background of the document and its Amendments, and the complex issues of interpretation that are involved in the application of the document to the ever-changing world in which it exists. It is at this useful level that FUTURECASTS reviews it.
 &

Laws, courts and the Constitution itself mean nothing if the people themselves are not determined to live by the words and support the rule of law.

 

The Constitution is a bluntly pragmatic document reflecting the practical requirements of self government. It reflects not only democratic aspirations, but also profound skepticism of democracy.

  The Constitution is not self enforcing, Monk emphasizes right from the beginning. As Judge Learned Hand pointed out, laws, courts and the Constitution itself mean nothing if the people themselves are not determined to live by the words and support the rule of law.

  As FUTURECASTS repeatedly points out, a legally, politically, and economically empowered civil society is an essential part of a properly functioning and secure modern democracy and market-directed capitalist system.

  The Constitution was not an overnight wonder. It was "the culmination of more than 150 years of practical experience with self-government in America." It was also the result of the failures of the Articles of Confederation (hereinafter referred to as "the Articles") under which the new nation was initially governed. It is thus a bluntly pragmatic document reflecting the practical requirements of self government. It reflects not only democratic aspirations, but also profound skepticism of democracy.
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  Monk points out that the Massachusetts state constitution, ratified in 1780, is today the world's oldest written constitution still in operation. It establishes "a government of laws, not of men."
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Constitutional limitations and protections were required "for those situations where representative government cannot be trusted."

  The task was to provide a national government with sufficient power to govern, but in a framework that would inhibit the inevitable abuses of power. Constitutional limitations and protections were required "for those situations where representative government cannot be trusted."
 &
  The primary mechanism applied was to separate the national government's powers into three independent branches - the legislature, the executive, and the judiciary - each authorized to exercise checks on the powers of the other two. Further, Congress - the most powerful branch under the Constitution - was divided into two chambers designed to reflect different interests. Power was further divided by recognizing the continuing sovereign powers of the states.
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  The author notes that the concept of separation of powers was derived from Montesquieu. The checks and balances were included for additional protection against abuse of power.

  The question of the relative powers of the three branches of the U.S. government cannot be answered in the abstract. Nevertheless, abstract statements about this question are common - and stupid. The question must always be examined in the context of individual issues and the relative intensity of concerns.
 &
  As a formal matter, the Congress is the dominant branch of government - as intended under the Constitution. Its legislative power and its power of the purse - together with its constituent support - are inherently the most powerful tools of government. However, it takes an extraordinary degree of unity and determination to fully use these powers in opposition to important Presidential policies or to alter judicial decisions based on interpretation of the Constitution. Such Congressional unity and determination is impossible without the approval of the electorate - again as intended under the Constitution.
 &
  A Congressional challenge to Presidential policy thus involves a contest for public support. Alteration of Supreme Court interpretations of the Constitution require the creation of public support that is sufficiently both broad and deep to either pass an appropriate Amendment or - with the active assistance of the President - appoint a sufficient number of Justices with different views to affect a change of the Court's views. This latter process is precisely what occurred with the waxing and partial waning of Warren Court Constitutional jurisprudence during the last half of the twentieth century.
 &
  To generate such public support, the President today has "the bully pulpit" of intense media coverage. Congressmen have less access to the media, but they can hold Congressional hearings and investigations that sometimes succeed in grabbing media attention and generating vast public support. The media is thus often referred to as the fourth branch of government - its prerogatives protected by the First Amendment to the Constitution.
 &
  However, the vast majority of judicial decisions involve only statutory law or common law, and the vast majority of executive branch policy is of only peripheral importance to the President. Ordinary legislation can alter or reverse such judicial decisions, and administrative agencies readily retreat in the face of any indication of legislative displeasure. The wishes of even individual legislators are carefully addressed by executive branch entities. The budget of every agency is at the mercy of those legislators.
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  On the other hand, Congressional attention itself is limited in nature. Legislators are notoriously less concerned with the execution of the laws and programs that they enact than with the enactment of new laws and programs. The vast majority of administrative actions thus proceed free of Congressional concern - checked only if challenged in the courts by the affected private litigants. The courts, too, can be checked - or even manipulated - by the litigation of private entities or government agencies. The costs of such litigation are high, however, thus limiting this form of public participation to those who are both determined and who have access to sufficient legal and financial resources.
 &
  Because of such factors, the question of the relative power of the separate branches of the U.S. government must always be examined in the context of individual issues and the relative intensity of concerns.

  The finished Constitution was submitted for ratification by conventions of the people in each state rather than by the state legislatures. It was admittedly imperfect, and thus contained a provision for amendment by supermajority votes that deterred capricious alteration but permitted any changes that could earn broad public support.

  There was no pretense that the original Constitution was complete. It resolved what had to be resolved - recognizing the compromises and accommodations required to gain sufficient acceptance for ratification. It resolved what could be resolved in accordance with the practical experience and philosophical wisdom of the day. The rest, it left for legislative consideration, future interpretation and amendment.
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  This style is still strongly in evidence in the nation's ordinary legislation. Statutes are often left vague over issues for which there is inadequate contemporary understanding, as well as over contentious subsidiary matters that must be fudged in order to reach consensus sufficient for passage. This provides substantial opportunity for administrative rule making and, ultimately, imposes a heavy burden of subsequent interpretation on the courts.

  Constitutional government is a never-ending work-in-progress - a grand experiment. See, Monk, "The Words We Live By," Part II, "Amendments to the Constitution."

The Preamble

We the People:

   The broad goals of the Constitution are initially set forth in a section now called "The Preamble."
 &

  These goals are:

  • The formation of a union "more perfect" than that which preceded it;

  • Insuring domestic tranquility;

  • Providing for the common defense;

  • Promoting the "general Welfare;" and,

  • Securing for the indefinite future, the "blessings of Liberty."

  Glaringly not specified in this initial paragraph is the need to eliminate trade barriers between the states and to facilitate commerce on a nationwide basis. Obstructions imposed by state governments on commerce between the states was one of the primary failures under the Articles and one of the most influential factors in the calling of the Constitutional Convention.
 &
  The establishment of a nationwide market was clearly one of the primary goals of the Constitution and is explicit or implicit in many of its provisions. Writing less than two decades earlier, Adam Smith had highlighted the benefits of a free flow of commerce between the regions of a nation. Yet it is no more than implicitly required for "the general welfare" and for "a more perfect union."

It is the governing authorities that are limited to the powers granted by the people, and the purpose of those powers is exclusively for the benefit of the people.

  Above all, by its initial words - "We the People" - the Constitution makes clear that all sovereign power resides in the people - that government has only those powers granted to it by the people.
 &
  Thus different from most other experiments in democracy, liberty in the U.S. is inherent in the people. It is not something granted from above by monarchs or courts or legislatures or other governing authorities. Indeed, it is the governing authorities that are limited to the powers granted by the people, and the purpose of those powers is exclusively for the benefit of the people.
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  Of course, the identity of "the People" in those days was restricted to white males. The author explains this as due to the attitudes of the times.

  The blunt fact is that a broader suffrage and an end to slavery would have been widely rejected. Like the Wright brothers providing a 747 instead of a powered kite, a Constitution providing for wider suffrage and an end to slavery could never have gotten off the ground given the political power plants available at the time.

  As Benjamin Franklin noted, the Constitution inevitably was limited by the prejudices, passions, errors of opinion, local interests and selfish views of the men gathered at the Convention and broadly held by the public at that time. He doubted that "any Convention we can obtain" could at that time do better.

  Reverence for the "Founding Fathers" of the Constitution is clearly justified. There is a vast host of democracies that have formed and failed in these last two centuries that thus provide irrefutable proof of the wisdom of their efforts. One cringes at the monstrosity that would probably be produced by any modern Constitutional convention. Indeed, it is doubtful if such a convention could produce anything that could gain ratification. The European Union has produced a 485 page monstrosity that is a good example of what could be expected. It is being widely rejected by those people who have been given the opportunity to vote on it.
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  There were many ways in which the founding fathers transcended personal interests - or interpreted them broadly as best served by the public good. The character, learning and philosophic attitudes of the principle actors as a group remains unparalleled in human history. The Constitution that they produced is a political miracle that has served the United States well. Most of its substantive provisions still provide new democracies with preferred templates for self government.

  The goals stated in the Preamble are not an independent source of rights. This has been made clear by interpretative decisions of the Supreme Court.

Article I: The Legislative Branch

Congress:

  The framers expected that Congress would be the most prominent of the three branches of government, and thus dealt with its powers and limitations in the greatest detail, Monk points out.
 &

Equal representation in the Senate for all states and recognition of slavery were compromises essential for the ratification of the Constitution.

  Article one includes the two major compromises essential for the formation of the union. The first is equal representation for all states in the Senate - insisted upon by the smaller states. The second is the recognition of slavery and the counting of slaves as three-fifths of a person for purposes of apportioning Representatives. Without this, the southern states - and many of the "border" states as well - would never have ratified the Constitution.
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  Legislative power is "vested" in Congress and cannot be delegated. However, "administrative law"  pursuant to the rulemaking powers of modern administrative agencies has been subjected only to restraints of a basic nature by the courts. Indeed, when Congress by statute delegates legislative authority to executive branch agencies, Monk notes, it cannot overturn the results except by additional legislation duly presented for Presidential approval.
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  Congress is divided into two chambers - the House of Representative (hereinafter referred to as "the House"), and the Senate. The two separate chambers serve as a further check on legislative power.
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  The members of the House reflect popular interests. Membership is apportioned to each state according to its population, with each state having at least one representative. Election is for just two year terms, so members must be constantly aware of constituent concerns.
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  Senators reflect State interests. Each State has two Senators elected for staggered six year terms.
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The provision for equal representation by state in the Senate is the one provision that cannot be amended.

  In the original Constitution, slaves were counted as three fifths of a "free person" for purposes of apportioning House representation, and Senators were chosen by State legislatures rather than by popular vote. Suffrage was determined by state law, but Amendments subsequently established national standards regarding race, gender, age, and property requirements. Monk relates some of the varying requirements that existed prior to these Amendments.
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  The provision for equal representation by state in the Senate is the one provision that cannot be amended. However, the Seventeenth Amendment in 1913 did provide for direct election of Senators rather than selection by state legislatures.
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  A census is required every 10 years.

 Aside from an actual head count, how that census is to be taken and the information gathered have become subjects of controversy. Those who resent the ever-enlarging scope of government resent the intrusiveness of the extra data collected for purposes of federal programs. Those who claim that minorities are disproportionately missed by actual headcounts want the use of sampling techniques. The possibilities for abuse of such techniques arouse passionate opposition.

  American Indians living on reservations were considered citizens of separate sovereign entities. They were neither taxed nor counted as U.S. citizens, until this status was changed in 1924 by Amendment. The "Indian Wars" ended in 1890 with the massacre at Wounded Knee, South Dakota. They are now dual citizens of the United States and of their tribe.
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Gerrymandering practices enable politicians to choose their voters and prevents voters from choosing their politicians.

  Age, residence and citizenship qualifications for Congressmen are set forth, as well as the limited tie-breaking powers of the Vice President as President of the Senate. There have, in fact, been several occasions when Vice Presidents have cast tie-breaking votes on controversial legislation.
 &
  Representatives must be 25 years of age, 7 years as a U.S. citizen, and resident in the state represented at the time of taking office. Senators must similarly be 30 years of age, 9 years as a U.S. citizen, and a resident of the state represented. Because of this provision, the establishment of term limits would require a Constitutional Amendment.
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  The number of Representatives has been limited by Congress to 435, with each representing an average of 646,000 citizens, according to the 2000 census. Special elections may be called to fill vacancies. Senate vacancies are filled by appointment by state governors pending the next special or general election.
 &
  The redistricting within states as representation is reapportioned each decade has resulted in the abuse called "gerrymandering." Incumbents unsurprisingly redraw districts to protect incumbents. Politicians thus choose their voters instead of voters choosing their political leaders. (A couple of states have removed redistricting authority from their elected officials in order to establish more competitive districts.)
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Unlimited debate permitted in the Senate - the "filibuster" - has been used to block legislation. There is a "cloture" rule that permits debate to be closed by a supermajority vote currently established at 60 percent.

  Both chambers are granted powers over their own procedures and for the resolution of disputes over the election of members. Congress has ultimate authority over election procedures, but state law governs where Congress has not acted. Both chambers may expel "disorderly" members by two-thirds supermajority vote. However, they cannot refuse to seat a duly elected member who meets the Constitutional requirements.
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  The rules of procedure of the two chambers vary. Most dramatic is the allowance of unlimited debate in the Senate. This has been used to block legislation - a "filibuster." There is a "cloture" rule that permits debate to be closed by a supermajority vote currently established at 60 percent.

  "In effect, this means that a bill must have sixty allies in the Senate to guarantee passage, not just a mere majority. Because of its larger size, the House of Representatives began to limit debate in 1841." 

Although nowhere mentioned in the Constitution, legislative committees perform almost all legislative work.

 

As part of the separation of powers, the simultaneous holding of a Congressional seat and an executive or judicial office is forbidden.

  The legislative powers of the two chambers, the President's veto powers, and the legislative power to override vetoes by supermajority votes of two-thirds of both chambers are also provided in Article I. Although nowhere mentioned in the Constitution, legislative committees perform almost all legislative work. Congress can also conduct investigations as an inherent part of its legislative authority.
 &
  An official record of proceedings must be kept, but secrecy is permitted. Both chambers must convene and adjourn together and in the same place. This doesn't apply to adjournments of three days or less. Congressional pay comes from the national government, not from the states represented. As part of the separation of powers, the simultaneous holding of a Congressional seat and an executive or judicial office is forbidden. This is in direct contrast to parliamentary systems that know no such separation of powers and routinely fill ministerial positions with members of parliament.
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Constitutional Amendments do not have to be approved by the President before being sent to the states for ratification.

  Both chambers must pass identical bills to send to the President. Differences are ironed out in conference committees and then resubmitted for approval in both chambers. Revenue bills must originate in the House - the chamber closest to the people and whose members are most frequently subject to elections. However, the Senate is free to amend revenue bills. Appropriations for government expenditures and bills that create fines may originate in either chamber.
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  The President has ten days - not including Sundays - to veto a bill. Otherwise, it automatically becomes law - unless Congress first adjourns. In that case, the bill dies if the President doesn't sign it. This is called a "pocket veto." Constitutional Amendments do not have to be approved by the President before being sent to the states for ratification.
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  The Supreme Court has ruled against the Constitutionality of line item veto legislation that would give the President more power to limit budgeted expenditures. Many governors have such power. Efforts to pass a line item veto amendment have so far failed. (Even with line item veto powers, states seem to have no trouble in getting into budgetary trouble.)
 &
  The House chooses its own officers, headed by the Speaker. In practice, the majority party chooses these officers. Under the 1947 Presidential Succession Act, the Speaker is next in line of Presidential succession after the Vice President.
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  The Senate chooses a "President pro tempore" to preside in the absence of the Vice President. He is next in line of Presidential succession after the Speaker of the House. However, the majority leader, chosen by the majority party, is the most influential Senator.
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Removal from office is the only penalty. All officials are nevertheless subject to the criminal laws.

  The House has power of Impeachment - the Senate has jurisdiction to try impeachments. Conviction in the Senate requires a two-thirds supermajority vote of Senators present. The trial is not a judicial proceeding - although the Chief Justice of the Supreme Court presides over trials of impeached Presidents. Otherwise, the Vice President presides. The Senate establishes the rules of procedure. Monk briefly explains current procedure:

  "The Houses appoints 'managers,' who act as prosecutors, and the accused may be represented by counsel. Senators must take a special oath for an impeachment trial, but they are not technically jurors. Senators are not allowed to speak during the trial, but they can present written questions for a witness to the presiding officer. Once the evidence has been presented, the senators deliberate in closed session and then vote in open session."

  Two Presidents have been impeached: Andrew Johnson in 1868, and Bill Clinton in 1998. Both were acquitted in the Senate. Richard Nixon resigned in 1974 just before he would have been impeached.
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  The Supreme Court has upheld reliance on a Senate Committee's recommendations in lieu of a full Senate trial in the impeachment of a judge. As of 2001, Monk notes, there have been 7 convictions - all of judges - out of 16 impeachments. Removal from office was automatic, but only 2 were further disqualified from future federal office. One convicted judge who was barred from  federal office was subsequently elected to Congress.
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  The Supreme Court considers the impeachment process final. There is no appeal to the courts. Benjamin Franklin opined that impeachment was a better alternative than assassination as a means of removing judges and executive officers. Removal from office is the only penalty. All officials are nevertheless subject to the criminal laws. Monk sets forth the history of this process. While the grounds for impeachment are criminal in nature, impeachment is not a criminal law proceeding. As Chief Justice William Rehnquist noted, it "can never be wholly divorced from politics."
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   Congressmen are accorded temporary legal immunity during and while traveling to and from sessions. They have absolute immunity for speech and debate in session. However, this Speech or Debate Clause immunity doesn't extend to unofficial statements like press releases and constituent newsletters.
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Congress has the "enumerated powers" granted in the Constitution, plus "implied powers" which can be inferred from the enumerated powers.

  Section 8 lists specific powers granted to Congress. Congress has the "enumerated powers" granted in the Constitution, plus "implied powers" which can be inferred from the enumerated powers. Monk cites the power to draft people into the armed services inferred from the enumerated power of raising an army.
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  There are also "inherent powers" recognized as essential parts of sovereignty - such as the power to regulate immigration and conduct foreign affairs.
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  The primary powers provided in Section 8 are those of debt payment, provision "for the common defense and general welfare," and taxation - which must be uniform throughout the nation. Congress is also granted power to:

  • "borrow Money on the credit of the United States;"

  • regulate interstate and international commerce;

  • enact uniform laws governing citizenship and bankruptcy;

  • coin money and fix standard weights and measures and the value of the nation's currency;

  • punish counterfeiting;

  • establish post offices and post roads;

  • issue patent and copyright privileges "for limited Times;"

  • establish a federal court system "inferior to the Supreme Court;"

  • punish piracy and other maritime and international offenses;

  • declare war and establish rules for military conduct and for captures;

  • appropriate moneys for up to a maximum of two years at a time to raise and support armies;

  • "provide and maintain a Navy" - with no limitation on duration of individual appropriations (sailing ships could be away from port for many years at a time);

  • provide for the raising and "calling forth" the militia, and establishing the "discipline" pursuant to which the states will appoint officers and conduct training;

  • "exercise exclusive legislation" over the capitol district and over federal facilities.

  These legislative powers are then extended to "all Laws which shall be necessary and proper" for their execution and the execution of all other powers of the national government.
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The courts no longer inquire into the motives for passing tax laws.

  Under the Articles, Congress lacked the power of the purse. It had to request funds from the states. The Constitution provided Congress with limited powers for raising revenues. These were greatly expanded by the Sixteenth Amendment which authorized income taxes. Supreme Court interpretation has viewed these powers broadly.
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  Although previously restricted by the Supreme Court, the use of tax laws for purposes other than the raising of revenues has become commonplace since the New Deal in the 1930s. The courts no longer inquire into the motives for passing tax laws.
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  Similarly, the power to spend is now viewed broadly by the courts, providing the federal government with additional massive power to influence state policy. Monk cites a 1984 law that used restrictions on federal highway funds to induce states to raise their minimum drinking age to 21.
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  There is no Constitutional limit to the deficits the federal government can incur.
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Today, anything that in any way impacts interstate commerce can be regulated by the federal government under its Commerce Clause powers.

  Under the Articles, Congress had no power to regulate commerce. The states readily succumbed to protectionist impulses, leading to a fragmentation of the nation's economic market. One of the primary driving forces behind the Constitution was the need to prevent such costly foolishness, so Congress was given unlimited power to regulate interstate commerce.
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  This power, too, has since 1937 been broadly interpreted by the Supreme Court. Today, anything that in any way impacts interstate commerce can be regulated by the federal government under its Commerce Clause powers. Prior to that, a string of Supreme Court decisions had recognized real limitations on this power, overturning federal Commerce Clause legislation applying antitrust law to manufacturing, establishing child labor practices, and establishing New Deal industrial policy under the National Industrial Recovery Act.

  The grain raised by a farmer to feed to his own cattle is subject to federal Commerce Clause agricultural policy legislation.

  Today, Commerce Clause powers support federal wages and hours legislation and the 1964 Civil Rights Act forbidding racial discrimination in privately owned public accommodations. However, recently, the Supreme Court has indicated that there are still some limitations to this power. It struck down Commerce Clause legislation establishing gun-free school zones and the Violence Against Women's Act as not sufficiently pertinent to interstate commerce.
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  Citizenship was not defined until the Fourteenth Amendment in 1868. The first federal law restricting immigration was the 1882 Chinese Exclusion Act. Recently, the Supreme Court has ruled that immigrants - both legal and illegal - are protected by the Due Process Clause of the Fifth Amendment. Deportable immigrants cannot be held indefinitely if they cannot be returned to their home country.
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  Under the Articles, both the States and Congress could coin money and issue currency. This caused substantial financial uncertainty. The power to coin money was extended to paper money in the "Legal Tender Cases" in 1871. These are the exclusive prerogatives of Congress under the Constitution.
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  District and appellate courts established under Article I are governed by Article III. However, special courts established to deal with specific issues - such as military law, bankruptcy or tax law - are not covered by Article III, so their judges do not have the Article III protections of lifetime appointment and irreducible salaries.
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  Congress has declared war on only five occasions. The ability of the President to deploy troops in armed conflict without a declaration of war or similar Congressional approval is a matter of repeated controversy. (See, Boot, "The Savage Wars of Peace.") The Supreme Court has repeatedly shied away from involvement in these disputes. The 1973 War Powers Act was supposed to resolve the issue, but has failed to do so.

  Ultimately, Congress can force the issue by refusal to fund military actions, but this is a drastic remedy that Congress has used on only a few occasions. Its most prominent use was to bar any support for South Vietnam when that country was ultimately invaded and conquered by North Vietnam in the mid 1970s. In the 1980s, Congress blocked the funding of Reagan Administration support for insurgencies against Soviet client states in Central America and Africa. These insurgencies were successfully bleeding the Soviet Union financially and undoubtedly hastened the end of the Cold War.

The Necessary and Proper Clause provides the source of the federal government's implied powers. The actual extent of implied powers continues to generate hotly contested disputes and litigation. Most federal criminal law is based on this clause.

  Under the Articles, only the states could raise armies and recruit forces for the Continental Army. The War Powers Clauses provides authority for the raising of national military forces. It also provides authority for the seizure of the assets of enemy aliens, and the regulation of the wartime economy. This authority continues for the duration of the wartime emergency. The Uniform Code of Military Justice is promulgated under this authority. Some of the protections of the Bill of Rights do not extend to military justice.
 &
  Under the Articles, the national government had only the powers specifically listed. Now, the Necessary and Proper Clause provides the source of the federal government's implied powers. The actual extent of implied powers continues to generate hotly contested disputes and litigation. Most federal criminal law is based on this clause.
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  Section 9 imposes specific limitations on the powers of Congress. Most notably, Congress was prohibited until 1808 from regulating immigration or the importation of slaves. Congress promptly banned the importation of slaves in 1808, but was politically unable to restrict the domestic slave trade.
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  Congress was also prohibited from:

  • suspending habeas corpus (an order to deliver "the body" of a detainee to court) "unless when in Cases of Rebellion or Invasion the public Safety may require it;"

  • enacting "ex post facto" (retroactive) laws or "Bills of Attainder" (legislated punishment without trial);

  • levying direct taxes not based on population;

  • taxing exports;

  • imposing non-uniform regulations or taxes on interstate or international commerce or otherwise treating the states as separate markets instead of as undifferentiated parts of the national market;

  • authorizing payments without specific appropriations and public accounts;

  • granting titles of nobility.

  Public officials are forbidden to accept gifts from foreign governments without permission from Congress.
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  The writ of Habeas Corpus is one of the earliest civil liberties in Anglo Saxon law. It forces the arresting authorities to show cause for the arrest. The Supreme Court has taken a very narrow view of the power to suspend this writ.
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  Direct taxes
- usually based on the value of land - are now seldom used by the federal government for raising revenue. It prefers income taxes authorized by the Sixteenth Amendment.
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  Congress cannot tax a state's exports. This was an important accommodation of southern state agricultural interests.

  "Also, Congress cannot favor certain ports. Neither can the states make one another pay duties on their vessels, as though they were from foreign countries, which was a problem under the Articles."

  Appropriations legislation is required before the executive branch can spend any money. This was the requirement violated by Lt. Col. Oliver North in the 1980s when he financed the Nicaraguan contras with money from weapons sales to Iran. Specific appropriations legislation is needed even for activities being conducted pursuant to statutory authorization.
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  Section 10 limits the sovereign prerogatives of the states. It makes many Congressional powers exclusive by pertinent restraints on state powers, and extends to the states many of the limitations on the powers of Congress. Any regulation of interstate or international commerce by the states without Congressional consent is forbidden, as is the maintenance of military forces except when invaded or under immediate threat of invasion. Interstate compacts also require Congressional approval.
 &
  Foreign affairs and the creation of money are exclusive federal activities. Bills of Attainder and ex post facto laws or the granting of titles of nobility are banned. Contractual rights cannot retroactively be impaired by legislation except pursuant to bankruptcy laws. (When in conflict with other Constitutional provisions, this Contract Clause is not accorded the same prominence today as it was in the early 19th century.)

Article II: The Executive Branch

The President:

  Article II vests the executive power in the President and his appointees.
 &

  The method of election provided is by "Electors." The method of election by Electors - and the Succession to the Presidency - have been modified by Amendment. See, "The Twelfth Amendment," "The Twentieth Amendment," "The Twenty-Third Amendment," and "The Twenty-Fifth Amendment" in Monk, "The Words We Live By," Part II, "Amendments to the Constitution."

  Since apportionment of Electors is according to the number of Senators as well as Representatives for each state, this is another way in which the smaller states were provided an advantage to ease their fears of being rendered powerless to protect their interests.

  Qualification for the Presidency is now limited to natural born citizens at least 35 years of age and 14 years resident within the United States. The President cannot receive any pay other than his federal salary, which is a fixed sum during his Presidency. Currently, that salary is $400,000 per year, but Congress also provides a vast expense account.
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  The President must swear to "execute the Office of the President," and "protect and defend the Constitution of the United States."
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  The President is Commander in Chief of the Armed Forces. This assures civilian control of the military. The primary executive branch officers serve at his pleasure. He has the power to grant pardons and reprieves except in cases of impeachment.
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The President has the power to conduct foreign affairs and "take care that the Laws be faithfully executed."

  With the advice and consent of the Senate by two-thirds supermajority vote, the President can make treaties. With majority vote of the Senate, he can appoint Ambassadors, Supreme Court Justices, and federal statutory judges and officers. He has the power to make recess appointments to fill vacancies, but these are limited in duration to the end of the next Congressional session.
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  The President is also required to deliver "from time to time" a "State of the Union" message. He may also recommend legislation. He has the power to convene extraordinary sessions of Congress and resolve disputes between the chambers over adjournments. He has the power to conduct foreign affairs and "take care that the Laws be faithfully executed."
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  Article II also makes clear that all civil federal officers, both Constitutional and statutory, are subject to the impeachment process and removal for conviction of "Treason, Bribery, or other high Crimes and Misdemeanors."
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There was widespread fear of creating a monarchy or tyranny.

 

As a result of this controversy and uncertainty, the President is merely invested with the "executive power" and a few particular powers without any effort to define the limits of executive power. The extent of that power is thus open to interminable interpretation.

  The lack of an efficient executive was a primary weakness under the Articles. Under the Articles, the president was appointed by the Congress from its members, and he acted as a presiding officer, not a chief executive. Executive departments were created and civil officers were appointed by Congress to administer them.
 &
  Monk sets forth the contentious disputes at the Constitutional Convention over the nature of the executive branch. There was widespread fear of creating a monarchy or tyranny. However, in George Washington, the Convention knew it had the perfect President. He had willingly relinquished his command after the Revolutionary War, and firmly refused to consider unelected leadership - a rare (almost unique) virtue in victorious revolutionaries. Ultimately, he willingly relinquished the Presidency after two terms - a tradition that was followed until Franklin D. Roosevelt and WW-II.

  No other modern nations have had a "George Washington" during their formative period - or at least they didn't until Nelson Mandela. This willingness to serve and then relinquish power is rare, indeed - one of the primary reasons why Washington is still considered by knowledgeable people as the nation's greatest President.

  As a result of this controversy and uncertainty, the President is merely invested with the "executive power" and a few particular powers without any effort to define the limits of executive power. The extent of that power is thus open to interminable interpretation.
 &

The President also has "absolute immunity from damages liability" for his official acts - but not for actions unrelated to his official conduct.

  The Supreme Court has supported the view that there are "inherent" executive powers - especially in foreign affairs. It has also recognized a certain degree of "executive privilege" so the President can receive confidential communications. As Pres. Nixon found out, however, this does not outweigh a demand for evidence in a criminal trial, unless national security issues are involved. The President also has "absolute immunity from damages liability" for his official acts - but not for actions unrelated to his official conduct.
 &

In times of military or economic emergency, Congress generally accords the President great autonomy - but sharply pulls it back during normal times or in cases of abuse of authority.

  The influence of the Presidency has waxed and waned. It is neither "imperial" nor "imperiled" as some have foolishly contended at different times. Congress has the tools to effectively balance and even constrain the President as desired. Also, the electorate has an effective say in the matter every two years in response to Congressional actions or inaction.
 &
  Congress can use - and has used - its power of the purse to constrain Presidential actions. However, if it is not willing to do that, the President has the initiative. In times of military or economic emergency, Congress generally accords the President great autonomy - but sharply pulls it back during normal times or in cases of abuse of authority.
 &
  When the same political party controls the Presidency and both chambers of Congress, the President is generally given great leeway. However, as Pres. Clinton discovered, the electorate can quickly cost a party its control of the House of Representative if a President oversteps his electoral mandate.
 &
  Even the President's control over the executive branch - the federal bureaucracy - is limited. Monk quotes Harry Truman speaking of his successor, Gen. Dwight Eisenhower.

  "He'll sit here, and he'll  say 'Do this! Do that!' And nothing will happen. Poor Ike -- it won't be a bit like the Army. He'll find it very frustrating."

  Truman further explained:

  "I sit here all day trying to persuade people to do the things they ought to have sense enough to do without my persuading them - - - -. That's all the powers of the President amount to."

  The obvious fact is that Presidential power is constantly in flux - constantly subject to a form of negotiation with the Congress and - ultimately - with the electorate. The courts are not infrequently called in to arbitrate otherwise irresolvable disputes.

  Alexander Hamilton was the most forceful advocate of a strong, "energetic" Presidency. Monk sets forth his views as presented in The Federalist Papers - newspaper articles written in support of ratification of the Constitution. However, Hamilton was also aware of the dangers, and thus favored a four year term that would force a President to remain accountable to the electorate.
 &
  The role of the Vice President was given little thought. Originally, the Vice President was the runner up in the Presidential election, and so could be an opponent of the President. This was changed by the Twelfth Amendment, which required a separate ballot for the President and Vice President. For all practical purposes, this assured they would come from the same party. Until recently, the office of the Vice President was much derided.
 &

The smaller states will never surrender their advantages under the current electoral college system, so efforts at abolition will remain just talk.

  The power to elect the President is vested in the States, not in the people. The states quickly began to allow their citizens to vote for the state's presidential electors, and today that is the universal practice. However, in Bush v. Gore (2000), the Supreme Court affirmed the right of the states to take back the right to choose their electors.
 &
  The electoral college remains controversial, and there are always advocates for its abolition surfacing in the media. Defenders of the system point out that it assures prominent federal consideration of regional and local issues. The smaller states will never surrender the advantages of the current system, so efforts at abolition will remain just talk.
 &
  Each state has considerable leeway in how it apportions electoral votes. All but two use "winner take all" systems. However, allocation proportional to voting strength is possible. Two states - Nebraska and Maine - award their individual electors according to results in each Congressional district, with the two extra electors awarded to the statewide winner.
 &
  Citizens of United States Territories have no vote in Presidential elections. The District of Columbia selects three electors as if it were a state, with Congress regulating how they are chosen.
 &

  Under the Twelfth Amendment, the House of Representatives selects the President if no candidate achieves a majority of electors' votes. However, each state delegation has just one vote when selecting the President. Only in 1800 and 1824 has the House had the opportunity to select the President. The Senate selects the Vice President in such cases.
 &

  Political parties are not contemplated by the Constitution, were not contemplated by the founders, and were deplored by Washington. However, after his administration, they formed naturally to contest elections and have become a central factor in the political system.
 &
  With the unexpected advent of political parties, electors now run in each state as a slate dedicated to one or another of the Presidential candidates. The author notes that the system has generally reflected the majority or plurality vote, except in 1876, 1888, 1960, and 2000, and perhaps in 1824 as well. There is a statutory procedure for resolving contested electoral votes.
 &
  Four Presidents have been killed while in office - Abraham Lincoln (1865), James Garfield (1881), William McKinley (1901), and John F. Kennedy (1963). William Henry Harrison died while in office (1841), as did Franklin D. Roosevelt (1945), and Warren G. Harding (1923).
 &

Presidential powers:

  The "Take Care" clause has been recognized by the Supreme Court as a source of sweeping Presidential powers. To carry out the law, "the army of the nation, and all its militia, are at the service of the nation."
 &

To carry out the law, "the army of the nation, and all its militia, are at the service of the nation."

 

Executive orders have the force of law unless and until Congress enacts conflicting legislation, the courts overrule them as in conflict with existing law, or they are rescinded.

  Executive orders are also authorized by this Clause. They have the force of law unless and until Congress enacts conflicting legislation, the courts overrule them as in conflict with existing law, or they are rescinded. Monk notes that there have been more than 15,000 executive orders since 1789. (A large percentage of them are merely ceremonial.)
 &
The President's War Powers
are implied from his authority as Commander in Chief and from any declaration of war approved by Congress. As a practical matter, judges and Congressmen are loath to accept accountability for military conflicts, and so leave the President with great leeway to conduct military activities - even in the absence of a declaration of war.
 &
  Franklin D. Roosevelt authorized the internment of 120,000 Japanese American citizens during WW-II pursuant to his war powers. The Supreme Court upheld this action. "The Constitution has not greatly bothered any wartime President," FDR's attorney general Francis Biddle commented.
 &

  Presidential and executive branch discretion is an important factor in how vigorously laws and programs are executed.

  There are a vast array of obsolete federal, state and local laws that are totally ignored but that have not been repealed. The courts, too, have discretionary powers of this type. There notoriously are even Constitutional clauses and Amendments that the Supreme Court has decided to ignore or substantially reduce in influence - such as the Reserved States Rights provision in the Tenth Amendment. Prosecutorial discretion is always a vital factor in criminal law proceedings.

  However, Congress can insist on executive branch action. For example, it has by statute restricted the President's discretionary authority to "impound" properly appropriated funds. When Congress appropriates funds, it wants those programs executed.
 &

  A Presidential pardon is absolutely within his discretion. Neither Congress nor the courts can review pardons. However, it is illegal to give or receive a bribe in exchange for favorable treatment by the President or any other government official.
 &
  President's have frequently relied on "executive agreements" with foreign states to avoid the need for Senate ratification of treaties. The 1945 Yalta agreement to divide Germany and the 1980 agreement with Iran to end the hostage crisis are examples.
 &
  The implications of this type of agreement remain unresolved. The Supreme Court is not anxious to weigh in on such matters. The President's authority to alter or refuse to enforce a treaty is another question the Supreme Court has refused to consider.
 &

  The President's Cabinet is comprised of the "principle Officer" of each of the major executive branch departments. Their influence varies with the administrative style of each President and the Cabinet members themselves. The bureaucracy also includes a host of independent administrative agencies and other offices, as well as the military and intelligence services.
 &
  The power of the President to fire subordinates has been upheld by the Supreme Court as part of his obligation to see that "the laws be faithfully executed." Pres. Andrew Johnson was impeached as the result of a dispute with Congress over this power of removal.
 &
  The President cannot introduce legislation. However, as the leader of his party, he has great influence and can generally find members to carry his legislative agenda. He plays an integral part in the nation's legislative process, in its enactment as well as in its execution after enactment.
 &
  No President has ever adjourned a session of Congress.

Article III: The Judicial Branch

The Supreme Court and the Judiciary:

  Article III establishes a single "supreme Court" and authorizes Congress to "ordain and establish" inferior courts. To assure suitable independence, all Article III judges have life tenure and a salary that cannot be reduced.
 &

  Congress did not get around to creating appellate courts until 1891. Until then, Supreme Court Justices had to ride lengthy circuits to hear cases. (That's one way to force resignation of decrepit elderly Justices. Unfortunately, no substitute for this mechanism has been devised.)
 &
  The Chief Justice is the only judicial official mentioned in the Constitution. He is "The Chief Justice of the United States," and the head of the entire Article III Judicial branch. John Marshall, appointed Chief Justice in 1801, developed the Supreme Court as an equal branch of the government.
 &
  Congress determines the number of Justices on the Supreme Court. This has varied between six and ten, but has settled at nine since the end of the Civil War. During the Great Depression, Franklin D. Roosevelt threatened to expand the Court to give him an opportunity to appoint Justices who would accept the Constitutionality of New Deal programs. However, a change of attitude of one of the sitting Justices made that unnecessary.
 &
  There are no Constitutional requirements for Justices. Monk asserts that many - including such prominent Justices as Marshall, Earl Warren, and Felix Frankfurter - had no prior judicial experience.

  However, Earl Warren had served as California Attorney General, and Frankfurter was a graduate of and professor at the Harvard Law School.

  The dates of the Supreme Court's term are set by Congress. It presently starts on the first Monday in October and ends in June.
 &

  The "judicial Power" - the jurisdiction - of the courts, the cases over which the Supreme Court has original jurisdiction, the right to trial by jury, and the location - the venue - of proceedings, are set forth in Section 2 of Article III.
 &
  Jurisdiction, Monk explains, is "the legal authority of a court to hear and decide a case." Jurisdictional limits are set by the Constitution and by legislation. These limits can be based on geographic locations, or by subject matter such as cases in law and equity or tax or claims against the government or admiralty. Jurisdiction can also be based on the parties involved, such as cases affecting government officials or government entities or citizens of different states.

  "The goal of [Section 2] of Article III was to avoid the possibility of prejudice by state courts against the federal government or citizens of other states. To lighten the workload of the federal courts, Congress in 1988 required that cases between citizens of different states -- known as diversity jurisdiction -- must involve a minimum dispute of more than $50,000."

  Judicial jurisdiction is limited to "cases and controversies" by the Constitution. Hypothetical cases are prohibited. It is important that opposing parties have a personal stake in the outcome and will thoroughly advocate their positions to provide appropriate guidance to the courts. Advisory opinions are similarly prohibited.

  The "management" of litigation is nevertheless a common tactic. Government and private entities with a continuing stake in particular aspects of the law look for attractive cases to litigate through the appellate process to establish favorable precedents. They settle unattractive cases before they reach the appellate level. When regulatory or contract provisions fail to provide favorable litigation outcomes, the provisions are altered until favorable litigation outcomes are obtained.
 &
  Thus, for those with a continuing stake in various aspects of the law, a particular win or loss is not nearly so important as is reasonably expeditious procedures - something that is a frequent problem - and competent and reliably consistent judgments.

The Court issues writs of certiorari if any four justices accept a petition. It receives thousands of petitions, but accepts less than a hundred in any given year. The most frequently accepted petitions are those that involve conflicting decisions in the circuit courts of appeal.

  The Supreme Court's appellate jurisdiction can be changed by Congress. Most mandatory appeals have gradually been eliminated, permitting the Court to concentrate on those cases that it considers most important. In the 1996 Antiterrorism and Effective Death Penalty Act, Congress restricted but did not eliminate habeas corpus appeals in order to prevent death penalty appellate procedure from continuing interminably.
 &
  Discretionary appeals are obtained by petitioning the Court to issue a writ of certiorari that directs a lower court to transmit case records. The Court issues such writs if any four justices accept a petition. It receives thousands of petitions, but accepts less than a hundred in any given year. The most frequently accepted petitions are those that involve conflicting decisions in the circuit courts of appeal.
 &
  The  Supreme Court's original jurisdiction is set by the Constitution and can only be changed by amendment.
 &

  Treason is the only substantive law provision set forth in Article III. It is the only crime defined in the Constitution. Reacting to abuse of this drastic charge under the English monarchy, it is carefully defined and strictly limited to "levying War" against the United States, or "adhering to their enemies, giving them aid and comfort." Punishment is strictly limited to the person and property of the perpetrator, and cannot be extended to family or friends.
 &
  Trial by jury in criminal cases is one of the few individual rights protected in the original Constitution, the author notes. The Fifth, Sixth and Seventh Amendments provide respectively for grand juries to screen criminal charges, and trial by jury in criminal cases and in civil cases.
 &

  Alexander Hamilton considered the Judiciary "the least dangerous branch" because it could not enforce its judgments and had "no influence."

  In modern times, courts have increasingly commanded affirmative actions of the other branches.

  Monk provides several pages dealing with the controversy over the power of "unelected judges" to "interpret the laws." She provides some useful thumbnail definitions.

  • Judicial restraint: a judicial philosophy under which judges avoid if possible decisions overturning statutes and precedents. "Judges must show great deference to popularly elected legislatures and previous court decisions - and thus be slow to make drastic changes in public policy." Changes in public policy are supposed to be made by elected legislators not unelected judges.

  Many state court judges are elected, and many that are appointed are required to stand for election after being on the bench a certain number of years.

  • Judicial activism: a judicial philosophy under which judges do not where possible avoid decisions overturning statutes and precedents.  "[Judges] play an important role in public policy and [need not be so reluctant] to overturn laws and precedents."

  • Strict construction: a judicial policy of construing the Constitution's text narrowly to limit government power. Enlargement of the powers of government is a political act intended to be considered by the political arms of government through legislation and Constitutional amendment.

  This is a misstatement of the meaning of "strict construction." There are statutes and Constitutional provisions that are meant to be construed broadly - like the government's powers to conduct foreign relations. Whether broad or narrow, strict constructionists attempt to stay within the definable intent of statutory or Constitutional provisions.

  • Loose construction: a judicial policy of construing the Constitution's text broadly to allow flexible government power. The Constitution is not a "wordy legal code." It was intended to give "general guidance about basic principles" leaving broad "play in the joints" for subsequent interpretation. The Constitution is an evolving document - "The Living Constitution" - that grows and changes over time to meet society's changing needs. Judges determine those needs and "find" that changing law.

"How are judges to apply the law in a way that is consistent with democratic self-government? How do they interpret law and not make law?"

 

Without grounding in text, intent, precedent, history, and established policy and principle, judges too often read their own personal preferences into the Constitution and statutory law.

 

Different framers and members of state ratifying conventions had varying opinions on the meaning of Constitutional provisions, and many modern issues were beyond their contemplation.

  The proper role of "unelected" judges has been one of the most controversial issues under the Constitution, Monk explains.

  "On the one hand, Americans rely on judges who are independent of the political process to protect minority rights. On the other hand, such independent judges also limit majority rule, the essence of democracy."
 &
  "How are judges to apply the law in a way that is consistent with democratic self-government? How do they interpret law and not make law? Justice Oliver Wendell Holmes, Jr., believed that judges should not second-guess the opinions of the majority, as expressed in laws enacted by the legislature, unless the Constitution clearly prohibited such action. To Holmes, the mere fact that a judge disagreed with the wisdom of a law was not sufficient to make it unconstitutional."

  The author cites Justice Scalia as a "textualist" or "originalist" "who relies on the original meaning of the words -- rather than the intent of the framers - - -." The Constitution "should not be construed leniently: it should be construed reasonably, to contain all that it fairly means." Scalia believes that the "evolving document" approach gives unelected judges too much power.
 &
  Judge Robert Bork is cited as a proponent of the "framers' intent" method of interpretation. He fears the noxious impact of the politicization of the Judiciary as it is increasingly transformed into an unelected policy making body. Without grounding in text, intent, precedent, history, and established policy and principle, judges too often read their own personal preferences into the Constitution and statutory law.
 &
  Critics of these views, however, argue that intent is often impossible to determine. Different framers and members of state ratifying conventions had varying opinions on the meaning of Constitutional provisions, and many modern issues were beyond their contemplation.

  In Roe v. Wade (1973), the abortion rights decision, the Supreme Court based its decision neither on Constitutional text nor intent nor precedent nor history nor any established Constitutional policy or principle. Instead, Justice Blackmun, writing for the Court, referred to the "emanations" and the "penumbra" of the Constitution as the basis for decision.
 &
  Of course, one man's "emanations" or "penumbra" will be different from those of other men. This is an obviously weak rationalization for a blunt assertion of judicial power. It demonstrates a keen contempt for the Constitutional constraints that make the difference between rule of law and rule of men. With this kind of rationalization, the Constitution says only what the Court says it says, and the Court is free to alter it at will.
 &
  This rationalization had been used before by activist Justices during the previous Warren Court (1953 - 1969), but this time it created a firestorm of outrage in those opposed to the decision. The weakness of this approach has been clearly revealed by the results.
 &
  Most important, a highly contentious issue was arbitrarily removed from determination in the political arena. The losers rightly took umbrage, and a major segment of the population lost faith in the Court. No longer able as a practical matter to contest the issue by means of ballots, a few even resorted to bullets and other acts of violence.
 &
  The courts have since increasingly become recognized as just another political arm of government, control over which must be subject to intense partisan struggle. An increasing number of sharply divided Supreme Court decisions rest uncertainly on the shifting sands of future judicial appointments. Almost 20% of the Court's decisions are by narrow 5-to-4 majorities. This is not rule-of-law but rule by nine Philosopher Kings on the Supreme Court bench who have sharply differing ideological perspectives.
 &
  Roe v. Wade was a major tactical  victory for the liberal agenda, but it has been a major strategic defeat. It has galvanized a passionate opposition that has played a major role in frustrating further liberal advances and at least temporarily ended the Democratic Party's half century reign as the nation's majority party. The controversy over judicial appointments gets increasingly bitter every decade.
 &
  It is true that courts must "find" the law where it is not already evident or where new circumstances arise. However, that must be constrained by established principled methods of interpretation to maintain the essential characteristic of judicial impartiality. Without that, respect for the courts will wither. As a practical matter, the Supreme Court cannot afford to similarly anger a second group of similar size and passion. Faced with an even greater firestorm of popular outrage, it judiciously backtracked to more pragmatic positions from Warren Court decisions on the death penalty and other aspects of the criminal law.
 &
  It must be emphasized, here, that this controversy applies only to politically sensitive issues. The vast majority of mundane casework is still performed competently and impartially by the judiciary - maintaining the rule-of-law on which all else depends. Monk's slim book - and this review - just scratch the surface with respect to the issue of judicial interpretation of the Constitution and the laws.

  A brief note on the importance of John Marshall, the Supreme Court's fourth Chief Justice, is included in this chapter. Marshall established the Court as an equal branch of the government. Relying on such provisions as the "Necessary and Proper Clause" of Article I, Section 8, and the history behind the writing and ratification of the Constitution, he interpreted the powers of the national government far more broadly under the Constitution than they had been under the Articles - as clearly intended by the founders.

Article IV: The Federal System

Full Faith and Credit:

  Article IV governs relationships among the states and between the states and the national government.
 &

The "Full Faith and Credit" requirement binds the states to "acknowledge the validity of another state's laws even when they disagree with the outcome."

  Section 1 provides that "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State."
 &
  This binds the states to "acknowledge the validity of another state's laws even when they disagree with the outcome." Congress is given authority to determine "the effect" of state laws, records and judicial proceedings.
 &
  States are permitted to make certain exceptions on "public policy" grounds. Monk notes the refusal to recognize marriages that involve incest or polygamy. This has current prominence for gay marriage disputes. However, taken together with the Equal Protection Clause of the Fourteenth Amendment, it is arguable that only a Constitutional amendment can prevent "nationalization" of same-sex unions. The 1996 Defense of Marriage Act will be attacked on Fourteenth Amendment Equal Protection grounds.
 &

Citizens are free to move between the states, and engage in commerce on an equal footing throughout the nation.

  Section 2 entitles all citizens to "all Privileges and Immunities" of citizens of the several states. This section also provides for extradition procedures to deal with fleeing criminals - and - another accommodation for the slave states - for the return of escaped slaves.
 &
  The Privileges and Immunities Clause, along with the Commerce Clause in Article I, is "intended to create a national economic union," Monk points out. Citizens are free to move between the states, and engage in commerce on an equal footing throughout the nation. Monk does note one exception recognized by the courts - a right for states to charge nonresidents more for admission to state universities since they do not pay taxes to support the schools.
 &
  In 1987, the Supreme Court ruled that federal courts could order governors to extradite fugitives. One state cannot grant asylum to fugitives from another state or inquire into the validity of the arrest or possible punishment.
 &
  The Fugitive Slave Clause was overturned by the Thirteenth Amendment.
 &

  Article IV also provides for the admission of new states, and Congressional governance of territories and federal property. All states must have a "Republican Form of Government." In 1987, Congress used its Article IV authority to block statehood for the District of Columbia.
 &
  The federal government is obligated by Article IV to protect the states from invasion and intervene when requested in cases of "domestic violence." The risks of domestic violence were quite real. Shay's Rebellion broke out in 1786-1787 in western Massachusetts. It involved debt-ridden farmers and Revolutionary War veterans. Southern states feared slave revolts. Four major revolts broke out between 1800 and 1831. They were all put down without the need for federal intervention.

Article V: Amendments

Amending the Constitution:

  The procedures for alterations to the Constitution are provided by Article V.
 &

  Providing a meaningful amendment process was viewed as essential in order to add the Bill of Rights as promised by the Federalists who supported ratification. Amendments under the Articles had to be by unanimous state approval - and there were none. None of the framers considered the Constitution as perfect or beyond improvement.
 &
  There are two methods for initiating amendments. The first is by proposals supported by supermajority votes of two-thirds of both chambers of Congress. The President's approval is not required. The second is by Constitutional Convention upon application of two thirds of the state legislatures. The second method has never been used.
 &

There has been no definitive ruling on whether a state may subsequently rescind a ratification decision, but it seems probable that a state may subsequently approve an amendment previously rejected.

 

The framers were concerned that the Constitution be open to change, but not subject to the whim of a simple majority like an ordinary law.

  Proposed amendments take affect when ratified by a supermajority of three fourths of the states - either by their legislatures or by state ratifying conventions, as determined by Congress. Only the Twenty First Amendment repealing Prohibition used the state ratifying convention method.
 &
  Beginning with the Eighteenth Amendment, Congress has frequently included a time limit for ratification. The Twenty Seventh Amendment concerning Congressional pay raises, ratified in 1992, had been proposed as part of the Bill of Rights more than two centuries prior to ratification.
 &
  There has been no definitive ruling on whether a state may subsequently rescind a ratification decision during the state ratification period, but it seems probable that a state may subsequently approve an amendment previously rejected.
 &
  Two of the primary compromises and accommodations that made the Constitution possible are protected from elimination. The slavery provision of Section 9 of Article I - which is now moot - cannot be amended. Nor can state entitlement to equal suffrage in the Senate.
 &
 Monk points out:

  "Article V makes the amending process difficult but not impossible. The framers were concerned that the Constitution be open to change, but not subject to the whim of a simple majority like an ordinary law. In Federalist 43, James Madison sets forth the balance that the framers sought to achieve in Article V: 'It guards equally against that extreme facility, which would render the Constitution too mutable; and that extreme difficulty, which might perpetuate its discovered faults.'"

  Some of the scholarly rationalizations for getting around the difficulties of Article V amendment procedures are summarized by Monk. She also notes the belief that the Supreme Court decisions and major events like the Civil Wars and the Great Depression have already forced informal changes in the Constitution without acquiescence of "We The People."
 &
  Monk reports that over 11,000 amendments have been introduced in Congress. Only 33 have been approved and sent to the states, and 27 of those have been ratified. Monk lists the 6 that were not ratified - most recently, the 1977 Equal Rights Amendment and the 1978 District of Columbia Voting Rights Amendment.

Article VI: The Supreme Law of the Land

Federal supremacy and credit:

  The Constitution, and the laws and treaties of the United States, are the "supreme Law of the Land." They bind all state judges and other officials regardless of conflicting state constitutional and statutory law.
 &

The Supreme Court has ruled that the treaty making power under the Constitution can be broader than the lawmaking power of Congress.

 

All federal and state officials are "bound by oath or affirmation to support this Constitution."

  Article VI also assures creditors of the national government under the Articles that their claims will remain valid under the Constitution. Ultimately, Alexander Hamilton decided that the national government should assume the war debts of the states.

  This established the credit of the United States through to the present time. Establishing and maintaining the credit of the United States was a primary concern of Hamilton and many others at the Convention. This has served the nation well for over two centuries. There is always the risk, however, that the nation's strong credit will be abused and lost.

  The Supreme Court has ruled that the treaty making power under the Constitution can be broader than the lawmaking power of Congress. Thus, the Senate could ratify a treaty with Great Britain regulating the hunting of migratory birds even though the full Congress had no authority to pass it as legislation.
 &
  Religious tests for public office are banned. This is one of the few civil rights expressly included in the original Constitution. All federal and state officials are "bound by oath or affirmation to support this Constitution."

Article VII: Ratification.

Approval of the original Constitution:

 

&

    Monk notes the sharp divisions that existed over the Constitution. Only 39 of the 55 Convention delegates signed it, and their signatures appear in Article VII. (Not all the delegates stayed in Philadelphia until the end of the Convention.) The nation was divided between Federalists and Antifederalists. By promising a Bill of Rights to further limit the powers of the Federal Government as soon as Congress convened, the Federalists won the day.
 &

Ratification was to be by state ratifying conventions, thus bypassing the state legislatures.

 

We have a republic - if we can keep it.

  Article VII stipulated that the Constitution would take effect upon ratification of nine states. Ratification was to be by state ratifying conventions, thus bypassing the state legislatures. There were intense debates in the newspapers. Especially influential were 85 articles written mainly by James Madison and Alexander Hamilton, known collectively as the Federalist Papers. They have become "the leading source of information about the intentions of the framers of the Constitution."
 &
  The Constitution took effect and the new Congress was convened in March, 1789, with 11 states ratifying it. By May 29, 1790, all 13 states had ratified it.
 &
  Monk highlights the importance of George Washington. He presided as President of the Convention, supported the Constitution during the ratification process, and was trusted by the people to be their first President.
 &
  After the Convention, Benjamin Franklin was asked by a citizen: "What have we got, a republic or a monarchy?" "A republic," Franklin replied, "if you can keep it." (This is the essence of all republican government.)

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Copyright 2005 Dan Blatt