Editor’s note: Constitutional Excesses? This is a controversial piece. I’ve decided to run it and get feedback. While I don’t agree with all the writer’s conclusions, I do think that Alexander Hamilton believed something similar or identical to what Broadus argues. And since Hamilton was an architect of the Constitutional convention, it is hard to claim that his understanding has no place in the document itself. I also think the way our history books treat the United States under the Continental Congress seems really biased.
However, others may (ha! will) disagree…
Most Constitutionalists seem to think that the Constitution limits the power of government in some way. It doesn’t. The purpose of the Constitution has always been to expand the power of the National government, and it has done so since its ratification. The usual tactic, especially in an unchallenged environment, is to point to Article I, Section 8 (what they call “enumerated powers”) as proof that these 17 or 18 powers constitute a comprehensive list of all things that the government is empowered to do. But by its very location, Article I, Section 8 which begins, “The Congress shall have the Power To…” can only apply to the CONGRESS.
Constitutionalists tend to be equally as committed to the somewhat arbitrary concept that there need to be separate branches of government, and the thoroughly inconsistent doctrine called the “separation of powers.” There seems to be a little disagreement, depending on whether you’re dealing with Hamiltonians or Madisonians as to whether the three branches should be “co-equal.” The Madisonians tend to point to the size and detail of Article I as proof that Congress should be the most powerful. The President is given fewer powers by comparison, but few believe that Congress should be able to tell a President what to do in war once one has been declared. Likewise, Article III is curiously absent of specifics. It does not describe how courts are to be set up, how many justices are to sit on them, or even how juries are to operate. Very much that is not reserved to Congress is left to inference. Some have suggested this is proof the courts are supposed to be the weakest branch. But they certainly would not want the courts to be weaker than Congress when deciding laws are unconstitutional.
What remains are the powers which are not enumerated. One of the parts of the Constitution most abused by Leftists is the “necessary and proper” clause. They will say that Congress can pass crazy laws like Obamacare because they are “necessary and proper.” Constitutionalists will usually counter by declaring that the Leftists did not read further into the passage, namely: “Congress shall have the power…To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers…” But Constitutionalists are just as guilty of failing to read the full context as the Leftists. The remainder of the sentence reads: “…and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” This makes clear there are powers granted by the Constitution that are NOT in Article I, Section 8. All one has to do is comb the Constitution in a candid and thorough manner to find such powers.
Focusing on the last relevant term, “Officer thereof,” we have to recognize that this section does not refer to members of Congress. “Officer” refers to any elected or appointed members of the Executive and Judicial branches, including members of the Supreme Court, the President, and his Cabinet, which would also cover the “Departments.” Taken together, the “Government of the United States” Congress has power to do pretty much anything that is “necessary and proper” to carry out all powers granted to the Executive & Judicial branches as well as Congress. Needless to say, there are many—and most are not enumerated. This falls to the first of the relevant terms, “VESTED.” Sadly, I never hear Constitutionalists talking about the “VESTED” powers.
So, what powers are VESTED in Congress? Well, where in the Constitution does it state that Congress is empowered to establish committees, decide how many people in each party should sit on each committee, and what the rules are which govern the committee’s behavior? Where does it say how many staffers each Congressman or Senator gets, and how much their pay is? Nowhere. These are part of the vested “Legislative powers.”
Likewise, Article II vests “the executive Power” in a President of the United States. Wherein does it state that he is empowered to dine with foreign leaders and go to the Olympics on the taxpayers’ dime, attend State funerals, or have his cabinet members go and speak on women’s issues and education? Where does it state that the President may enact the budget and decide how the money which Congress has appropriated is actually spent? Where does it state that he has a “bully pulpit,” or that he may use the State of the Union (which is neither required annually, nor must it be a speech at all) to grandstand and showcase wounded veterans and homosexual activists, or to criticize the supreme Court? Nowhere. If legitimate, these are part of the “executive Power,” and the Congress simply allows him to trample their authority in those which are not.
Article III vests “the judicial Power…in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” Where in the Constitution does it state that justices may instruct juries, or act as juries in their own capacities when a jury is not specified for such courts? Where does it state what rules of jurisprudence they are to use, or ideas such as “precedent” or the absurd notion that when Congress passes a law, they must have intended it to be Constitutional so that the court may re-define words as necessary to ensure the government’s will trumps both the Constitution and the rights of the People? Again, nowhere. This is all to be assumed as part of “the judicial Power.”
None of these powers are enumerated—they are VESTED, and at best can be traced back to tradition or Common Law. The Constitution fails us by not going into any detail on what these powers entail, nor in specifying the Common Law as the source of our legal tradition as many State Constitutions do.
Barack Obama thinks the Constitution is flawed because it doesn’t go far enough to create redistributive justice and alter the fundamental vision of the American Patriots who fought, bled and died in 1776 so we could be free. I believe it is flawed because it goes too far, and has nothing to do with the vision of 1776.
The 11 years that transpired in-between the Declaration and the Constitution saw the States as their own sovereigns, and then united under a Confederation. We are taught to despise those 11 years, but to praise the 228 which followed. It is in those 227 years that the power of government has grown without ceasing. The solution is neither to keep it, nor to amend it, but to start anew.