By Peter Hill

 

 

The Constitution, Part I: Purpose and Structure

 

The next three essays are about the U.S. Constitution. The first is about the constitution’s purpose and structure. What two problems was the Constitution trying to solve, and how does the federal government structure which the Constitution created help to solve those problems? The second emphasizes how the Constitution attempts to limit the federal government by granting to it only listed, or enumerated, powers, and then limits it even more by denying it the ability to restrict liberties found in the Bill of Rights. The third essay will show how the interpretation of the Constitution has evolved so that these limits have been significantly eroded, placing liberty at risk and maximizing power at the federal level.

 

Purpose

 

May we never be so unfortunate as to live through political experiments! None of us want to be a lab rat in an experiment conducted by others, whether biological or political. The Founders lived through two political experiences, one of which might well be characterized as an experiment, and both of which were extraordinarily instructive.

 

The first experience, of course, was colonial government under a monarchy, in which the king (sometimes through Parliament, sometimes through his governors, and sometimes unilaterally, through his Council) made the law all colonials were to obey. The colonials had little say in such laws, and no recourse – except ultimately to arms – if those laws were arbitrary and harmful. We can well understand the American insistence, once war established independence, that the executive power, represented by the king, must be restrained by law and custom. To see an American response to kingly authority, reread the Declaration of Independence.

 

The second experience was more of an experiment. It had never been done before. In reacting against unconstrained executive authority, Americans adopted a form of government that had no executive, and that maximized the authority and independence of each of the former colonies, now states. That form of government was established under the Articles of Confederation. There was no executive – no president, prime minister, or king to represent the new government and execute the laws Congress passed. Nor was there a federal or national court system. There was only Congress, and states were so jealous of their independence that all legislative decisions had to be unanimous. Accordingly, little Rhode Island could, if it wanted, veto any legislative matter, even if agreed to by everyone else. Each state had its own money. Each state had its own army. Each state conducted its own foreign policy. Unless all agreed. This Confederation government was almost no government at all, and its deficiencies were apparent to nearly everyone. That is why a convention was called in the summer of 1787. The delegates represented their various states and were to meet to reform the Articles of Confederation. In short order the purpose changed and the delegates began to debate, not the Confederation, but a new Constitution for a federal government.

 

The basic problem still remained, however. How can the Constitutional federal government be structured so as to do its job, but also how can the Constitutional structure help ensure that the government does not begin to intrude on the rights and authority of the people or of the states? How can it be made this powerful, but no more powerful than this? Madison phrased the problem in this way in his Federalist Paper 51, written in support of the new draft Constitution:

 

In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed [something that was lacking under the Articles of Confederation]; and in the next place oblige it to control itself [something that was lacking under the British monarchy]. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.

 

The solution the Founders found was to give the federal government the power it needed to do its job (something I will examine in the next essay), but to devise a system of “checks and balances” between the new federal government and the states – what we call federalism – and within the federal government itself – what we call separation of powers.

 

The “experience” Madison alludes to in the quote above refers not merely to the history of English kings and an ineffective Confederation. It also refers to the historically demonstrated propensity of people to combine with others to obtain coercive governmental power which they use to persecute and plunder those without the means to defend themselves. This is human nature. We tend to expand our “empire” – our sphere of control or influence – in government, business, and family. One of the Founders’ great fears was that of special interest groups, called “factions” in the Federalist Papers, that will combine to control government. What was their solution? To elect only the best people? Many progressives will say that. But power corrupts, and we should not expect to be ruled by “angels”, or the best people. No. The Founders’ solution was to pit human ambition against human ambition so as to neutralize both factions. As Madison wrote,

 

Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.

 

Consider how difficult it would be today in America for one Christian denomination to establish itself as the national church. Such a move would be opposed not only by secularists, but by the multitude of other denominations. No “faction” or consortium of denominations would be able to coerce the others. The same was true in Madison’s day. He used this example to demonstrate that the key to neutralizing special interest groups, or factions, was not to stamp them out, or try to reduce their number, but by having even more special interest groups!

 

The Founders had an accurate understanding of human nature. So do conservatives. It is typically progressives who insist on trying to find the right people and then giving them power to coerce others.

 

One final thought on “purpose.” What did the new Constitution do for the people? It did very little for them. But it also did very little to them. That was intentional. Every day one can see pictures of people carrying signs that “____ is a human right!” They demand that government “give” them these things – money, health care, dignity, housing, affirmation, education, and so on. They think that “human rights” are benefits, often monetary, that the government grants and disperses. That idea is entirely alien to the Constitution. As we will see, the very structure of the Constitution makes it difficult for the federal government to do things. Its intent was not to guarantee things such as wealth or income, but to keep the people protected from the government. All of these good things are to be sought after, but the Constitution lets people obtain them, or not obtain them, on their own, without assistance or interference from the federal government. In that sense, the Constitution was rather libertarian. The Constitution provides that the federal government is, in large measure, to leave people alone.

 

Structure

 

How did this awareness of the unpleasant truth about human nature affect the structure the Constitution designed for the new federal government? As mentioned above, in two ways: federalism, and the separation of powers.

 

Federalism refers to the constitutional allocation of power between the federal government and the states. The most important thing about the federal government is that its power is strictly limited. It can only do a few things. Most of these things can be found in Article I, section 8, where Congress is given several powers, including such things as collecting taxes, regulating interstate commerce, making uniform laws of naturalization, establishing courts, declaring war, and maintaining an army and navy. Importantly, it can also make laws “necessary and proper” for accomplishing this list of tasks. The President is given the authority to “see that the laws are faithfully executed.” But the federal government is forbidden from doing anything else. It is not authorized to pass laws that are “really good ideas”, or that “will make the people more equal”, or “will make us more democratic”, or other justifications typically used by progressives.

 

Can no governmental official accomplish other governmental tasks, ones not mentioned in the Constitution? Of course. We call them governors and state legislatures. These authorities have the power to do anything their state constitutions authorize, and state constitutions (as is Kentucky’s) are typically much longer and give much more authority to state actors, such as the governor, than the federal Constitution gives to federal actors, such as the President. Federalism limits the federal government by giving it only enumerated powers, and giving all the residual power to the states. The obvious conclusion is that the Framers, and the Constitution, intend for most decisions which affect people to be made by states or the people themselves. That is one reason why the federal constitution is so short.

 

Separation of Powers, or Checks and Balances

 

But the framers also used separation of powers to limit the danger posed by faction, and use ambition to counter ambition. That is, they used both the inherent human drive toward empire building, as well as the institutional separation of the federal government’s branches, to limit the damage each branch and the federal government as a whole could do to society and liberty. These are controls based on how the federal institutions are structured, and based on the natural human nature trait to dominate and control. Separation of Powers, or Checks and Balances, refers to the horizontal allocation of power within the federal government among the three branches of the federal government.

 

Federal governmental power was separated into three branches, and often requires cooperation between them. If one branch does not cooperate, that power cannot be exercised. One the one hand, Congress can declare war, but cannot elect a commander in chief. The Constitution has already provided that the President is the commander in chief. Congress is given all legislative authority “herein granted” by the Constitution. Accordingly, the President is not to legislate. That is not his function. And when he does, a federal court can hear a case or controversy, decide the President has acted unconstitutionally, and strike down the law.

Consider a recent example of this in the “Eviction Moratorium.” President Biden thought it would be a good idea if renters who did not pay their rent were prevented from being evicted. They might have lost income because of COVID. They might spread COVID if they moved from one place to another. But President Biden did not have a Congressional law to enforce. He had the Centers for Disease Control (CDC) enact a regulation imposing a moratorium on evictions. Landlords opposed this because it prevented them from evicting non-paying tenants. They sued, and won. The Supreme Court ruled that it is up to Congress to enact legislation, whether good or bad. The President was legislating without Constitutional authority. The CDC regulation, having the force and effect of law, was struck down. The Court held that “If a federally imposed eviction moratorium is to continue, Congress must specifically authorize it.” This August 26, 2021 case can be found here: 21A23 Alabama Assn. of Realtors v. Department of Health and Human Servs. (08/26/21) (supremecourt.gov)

 

Many politicians and commentators decry federal government “gridlock”, but fail to consider that the Constitution itself builds in difficulties to enacting legislation. The exact same law must pass through four reviews and approvals in order to become the law of the land. A bill must be approved by the House or the Senate. Then the other assembly must pass the exact same bill. If it does not, the bill dies. Then the President must sign the exact same bill. If he does not, the bill dies. Then the Supreme Court must find that the statute passes Constitutional muster. If it does not, the law is null and void. Four different bodies in three different branches must approve of the law. That is separation of powers. That is checks and balances.

 

This procedure was not accidental, but by design. “Gridlock”, or at least difficulty, was built into the process. The fact that legislation is difficult does not surprise anyone familiar with the Constitution. Only those who are impatient with Constitutional constraints express surprise and frustration with the process. Conservatives recognize both political and constitutional controls on legislation or Presidential action. Legislation requires political consensus and a constitutional basis. Progressives want only political controls, not constitutional controls, on a majority. If they can get a majority or political power, they oppose constitutional limits on their authority to enact policy through legislation or a Presidential directive. For progressives, power to enact their preferred public policy outcomes is more important than following the constitution.

 

If you think we should follow Constitutional provisions in enacting laws, you are likely a conservative. If you think the President, like a king, should be able to issue laws that are “really good ideas” during his term of office, you are likely a progressive. So, are you a Constitutionalist, or a monarchist?

 

© Peter Hill, 8 Feb 22