In an era of ever increasing executive and judicial power in the United States, it is a worthwhile exercise to re-read the Constitution with an eye to its structure. For it is in the way the document was constructed that a better understanding of how to federal government relates both to the People and to the States. In this article, I use the official transcript from the National Archives. Sections that have been modified by amendment are called out in this text, but the original text is left in place, including the spelling and punctuation as written on the official parchment copy in the archives.
It is often stated that the three branches of government (legislative, executive, and judicial) are co-equal. In reality, this is only partially true. The order in which the branches are laid out, and the amount of text devoted to each, speak to the importance of each branch in the eyes of the Founders.The three branches of government are discussed in order of decreasing importance to the People.This holds true even in laying out the two houses of Congress.
All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.
Article I deals with the Congress. Section 1 (quoted in its entirety above) makes one very key point that it seems few are aware of today. Congress is granted its legislative ability. The Constitution is understood in the context of the Declaration of Independence.
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.
In American theory, government is a bottom-up creation. That is, the People establish a government in an effort to secure their liberties, and that government exists only at the pleasure of the People. Therefore, Article I Section 1 makes quite clear that the Congress only has its powers because it has been given them.
The House of Representatives
Section 2 deals with the with the House of Representatives. This is key because it is the only part of the federal government that is supposed to be beholden to the People. In the original text of the Constitution, Senators are selected by the State legislatures (more on that later). The President is elected by the Electoral College (more on that later as well). Judges were, and remain, positions nominated by the President.
The House of Representatives has the least restrictions on who may serve, requiring that a Representative only be the age of 25. And the House of Representatives is designed to have frequent turnover, with every seat being up for election every 2 years. This gives the People the recourse to change their representation if they believe it is not acting in their interests.
As the House of Representatives is the closest to the People, Section 7 grants that House the sole authority to propose tax bills. All forms of taxation affect the People, be they the income tax, a tariff, or any of the other forms of taxation authorized under the Constitution as amended. Therefore, it is of critical importance that the People be able to express their displeasure at their Representatives’ actions. With knowledge of how quickly they stand for re-election, Representatives should take greater care in enacting legislation, such as taxes, that directly impact their constituents. In practice, most of them do not. But that is on us, the People, for constantly re-electing them.
Section 3 creates the Senate. Under the Constitution as originally written, Senators are chosen by the State legislatures. This is a key point which is lost on most people. Again, we turn to the Declaration of Independence for guidance:
We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do.
The States are preexisting sovereign entities. Under first the Articles of Confederation and then under the Constitution, they delegate some of the powers they posses to the federal government because it is in their mutual best interests to do so. The States are also creations of their citizens, and thereby they have some recourse into the actions of their Senators. But under the system of Federalism, outlined in the Constitution, the States are supposed to be represented in the federal government. The 17th Amendment changed this balance of power, by making Senators elected by the People. This is an amendment that should be repealed, as it is further enables the trend of reducing the Constitutionally protected sovereignty of the States.
Senators have more strict requirements on who may serve. They must be 30 years old and be a Citizen for at least 9 years. Additionally, their terms are 6 years and only one third of seats are up for election ever two years. This is so as to act as a counter-balance to the potentially wild swings that can occur in the House of Representatives.
Power granted to, and explicitly denied, the Congress
Section 8 grants very specific powers to the Congress. These are powers enjoyed by the States and the People that they have voluntarily given to Congress, as it is in their mutual interest to do so. Congress actually has very few powers under the Constitution, and yet it has the most powers of any branch. I encourage you to read Section 8 yourself, keeping in mind what has been discussed above, and see how few real powers Congress has. And then ask yourself how much they do that goes beyond these very limited powers.
The final clause of Section 8 is the misnamed “Elastic Clause.” It is widely misinterpreted to mean that Congress has authority to pass whatever laws it sees fit. The actual text reads:
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
The only thing this clause does is grant the power to make laws, but it is explicitly stated that only laws related to the specific powers granted to the Congress and the federal government may be passed. It is not a license to expand the scope of government. It takes a willful misreading of the plain language of this clause to think it grants wide powers.
Section 9 contains items that the Founders thought important enough to specifically deny Congress. Some of these deal with protecting the People (the privilege of the Writ of Habeus Corpus, no laws declaring a person a traitor, etc), some with protecting with equality of the States with respect to one another, and various other items that should be denied or allowed only under certain circumstances.
It is important to note that there are few powers specifically denied the Congress. This is because, under the structure of the Constitution, Congress only has such powers granted to it. Those that are explicitly denied are deemed worthy of special treatment.
Powers specifically denied to the States
Section 10 contains a listing of various powers that are denied to the States. This is essentially a mirror to Section 8; denying to the States those powers which they granted the federal government. These are the only powers denied to the States, and this is expounded upon in the Tenth Amendment, which explicitly says that the States retain the powers not denied to them.
It is fashionable these days to call for the abolition of the Electoral College. This is in large part due to the misguided notions that the United States is a Democracy, that the States are political subdivisions of the United States, rather than sovereign entities themselves, and that the Presidency is a powerful office with dramatic impact on people’s lives. However, Article 2 quite clearly dispels this last notion.
Powers of the President
These are the enumerated powers of the President
Article 1, Section 7 grants the President the power to sign or veto legislation approved by Congress, and even then Congress is capable of overturning a veto.
Article 2, Section 1 states that the President has the executive powers of the Federal Government.
Section 2 states that the President is Commander-in-Chief of the naval and armed forces of the United States. This creates civilian control over the miltiary.
Section 2 also states that the President has the power to fill the various posts of the Executive and Judical branches of government, but even this power is checked by requiring advice and consent from the Senate for each nominee. The Senate is not a rubber-stamp for the President.
Section 3 gives the President some limited ability to call Congress into session, grants him power to recommend legislation to Congress, receive ambassadors, faithfully execute the laws of the nation, and commission the officers of the armed services.
This is it. Those are all the powers the President has. The only influence the Office of the President should have on the citizens is by signing and executing laws. The vast apparatus of the regulatory state, the portion of the Executive that most touches people’s lives, is not authorized under the Constitution, as those regulation carries the force of law. That represents a massive, and improper, delegation of legislative power by the Congress to the Executive. The Executive cannot, and should not, be able both to craft legislation, and enforce it.
When looking at the enumerated powers of the President, it becomes clear why the occupant of the office is not elected by a simple majority of the citizens. The office simply has little impact on people’s lives. Furthermore, the Founding Fathers were well-aware of the importance of protecting the interest of the less populated states against those of the more populous states. Indeed, this is why the House of Representatives and Senate are apportioned the way they are. The Electoral College rectifies the imbalance in population across the States by granting each State a number of Electors equal to the number of Senators (2) plus the number of Representatives (minimum 1) from that state. It is up to the States to determine how their Electors are apportioned, while still increasing the power of the more populous States. Most use a winner-take-all approach to deciding the slate of Electors, but to my knowledge there isn’t a requirement for the States to hold a popular election; I believe they free to simply have their Legislature determine the Electors.
The Elector College creates a system wherein the candidates for President and Vice President must campaign across the entire country. In a purely nationwide popular vote scenario, it would only be necessary to campaign within about 50-100 miles of the coasts, effectively disenfranchising the vast interior of the nation. For these reasons, the Electoral College should remain.
The Supreme Court is the only Court explicitly created by the Constitution. Congress has the sole authority to create the inferior Courts of the United States.
Article III, Section 2 lays out the powers of the Judiciary, and of the Supreme Court explicitly.
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;— between a State and Citizens of another State,—between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
A modification to these powers is made in the Eleventh Amendment:
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
The concept of Judicial Review became entrenched in the United States in the early Supreme Court case, Marbury v. Madison. The plain language of Article III, as amended, doesn’t really seem to indicate that the Supreme Court has the ability to determine constitutionality of a law. Having such a power is both good and bad. It is good in that it provides a check on both the Legislative and Executive branches. It is bad in that the power is easily abused by the Courts, effectively giving them the power to overturn law on whim, unconstrained by any other body. The only recourse is through the removal of Justices via impeachment and attempting to pass the law again, or via the intentionally difficult process of amending the Constitution. The concept of Judicial Review has certainly been an avenue to upsetting the balance of powers in the Federal Government, both by the expansion of Executive power, but also of Judicial power, both at the expense of the Congress, the only branch of government designed to be responsive to the People.
It is obvious that the Supreme Court does not hold itself infallible. Consider that the Court has first upheld the doctrine of Separate but Equal as being Constitutional, and then has held it unconstitutional and overturned its own precedent. However, its decisions, whether they are right or wrong, have very far-reaching consequences and little ability to be checked. This is especially troubling, given that the Supreme Court is the branch furthest removed from the People. Its Justices are appointed by the President and confirmed by the Senate, and those Justices serve for life, assuming they are not impeached. And this last point is essential to removing the Court from political pressure.
Article III is ultimately the part of the Constitution most ripe for abuse, but it is admittedly hard to come up with a better way to handle the Judiciary. Ultimately, the best way to rein in the Judiciary is for politicians and prospective Justices to be grounded in an understanding of the Constitution as I have laid out.
I hope this has been an interesting read, and has given you food for thought if you have never been exposed to this understanding of how the American government is supposed to work.