Constitution

What does the Constitution mean?

Signing the Constitution

Signing the Constitution

Think of the United States Constitution as a partnership agreement between the states. The partnership agreement created an agent we call the Federal Government. The states are the “partners” and the federal government is the “agent.” The agent can only exercise those powers delegated by the partners to the agent via the partnership agreement. The partners can exercise any power they want, so long as the partnership agreement does not prohibit them from exercising a certain power. In addition, the partnership agreement is considered the supreme law of the land, along with laws passed by the agent pursuant to its delegated powers. If you understand these basic concepts, you have a better understanding of the Constitution than most lawyers and law students.

Constitutional versus Unconstitutional

It’s important to understand that federal laws are only Constitutional if the law is consistent with and pursuant to one of the Enumerated Powers of Article 1, Section 8 (or any Amendments). In addition, state laws are Constitutional so long as they do not violate any prohibition imposed on the state in Article 1, Section 10 (or any Amendments). Lastly, if the federal government has legislative power in an area and a state law conflicts with the legitimate federal law, then that federal law is supreme and overrides the state law. That’s it. Fairly simple.

It’s also important to note that Constitutional and Unconstitutional are not simple terms of approval or disapproval. A great and wise law may be Unconstitutional, just as a terrible law may be Constitutional. Constitutionality is not a policy question, but rather, a procedural question.

Basic logic of the Constitution

Vertical Powers – Federalism

Sovereignty is vested with the people of each state, respectively, with their own state constitutions, their own bills of rights, and their own representatives. When the Constitution was ratified, certain powers were delegated by the states to the federal government. As such, any power not delegated to the agent must logically be reserved to the states. Any exercise of power by the agent not pursuant to its delegated authority under the Constitution is thus illegal and unconstitutional. This principle underlies the delegated, Enumerated Powers of Article 1, Section 8, but it was also explicitly stated in the Tenth Amendment. Thomas Jefferson considered this principle, embodied in the Tenth Amendment, as the “cornerstone” of the Constitution.

Horizontal Powers – Separation of Powers

In addition to delegating specific legislative powers to Congress, the Constitution creates two other branches of government. Article 1 creates the Legislative branch (i.e., Congress) of the federal government. Article 2 creates the Executive branch (i.e., President). Article 3 creates the Judicial branch (i.e., Supreme Court). These are known as the three branches of the federal government. Each branch is required to separately exercise its authority within its own sphere.

Fourth Branch – Administrative Agencies

United States Constitution - Page 1

United States Constitution – Page 1

Most school children learn about the aforementioned Separation of Powers and its importance for the preservation of liberties. However, school children are not taught about Federalism and the Enumerated Powers, nor are they taught about the glaring logical inconsistency between the “Separation of Powers” and modern, bureaucratic “Administrative Agencies.”

In the modern, post-New Deal world, Americans live under rule making “Administrative Agencies” that create “regulations” with the force of law, that execute the regulations they create, and seat their own administrative courts. In short, these Administrative Agencies exercise the powers of all three branches of government within any one agency. These Administrative Agencies include such household names as the Food and Drug Administration (“FDA“), the Environmental Protection Agency (“EPA“), the Securities and Exchange Commission (“SEC“), etc… To view a complete list of these agencies, click here. These Administrative Agencies are sometimes collectively and euphemistically known as the “Fourth Branch of Government.”

Administrative Agencies have no basis in the Constitution. Federal Administrative Agencies are said to be housed within Article 2 and the Executive Branch of the federal government. However, read Article 2 and try to find any legitimate basis for the existence of these Administrative Agencies that exercise the powers of all three branches of the federal government.

Non-Delegation Doctrine

United States Constitution - Page 2

United States Constitution – Page 2

Article 1, Section 1 of the Constitution says, “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.” A longstanding doctrine, known as the “Non-Delegation Doctrine,” holds that Congress cannot pass a law delegating any of its law making authority. According to John Locke, “The legislative cannot transfer the power of making laws to any other hands: for it being but a delegated power from the people, they who have it cannot pass it over to others… the legislative can have no power to transfer their authority of making laws, and place it in other hands.” However, in the early Twentieth Century, the Supreme Court held Congress had an “implied power” to delegate its law making authority so long as the delegation was within “defined limits.” So that was the end of the Non-Delegation Doctrine and the wisdom of John Locke.

Whether Administrative Agencies are a good thing or bad thing is a separate question. From a Constitutional standpoint, there’s no question Administrative Agencies are unconstitutional and do violence to the Separation of Powers.

What are the delegated powers of the Federal Government in the Constitution?

The powers of the federal government are listed in Article 1, Sections 8 and 10.

Article 1, Section 8 lists the legislative powers of the federal Congress. This list is known as the “Enumerated Powers.” If the Constitution were drafted today on a word processor, there would be bullet points next to each power… it’s a fairly simple list.

Article 1, Section 9 is worthy of discussion since it places some limits on federal legislative power. This can cause some confusion, but it is best to think of Article 1, Section 9 as a “mini bill of rights.” The logic of this section is identical to the logic of the first ten amendments to the Constitution (i.e., the federal Bill of Rights).

Article 1, Section 10 lays out the limits on state power. Each of the three clauses begins, “No state shall,” or “No state shall, without the consent of Congress.” It’s best to think of this as the section whereby the partners agree to have the federal government enforce certain restrictions on the powers of the states.

Procedure versus Policy

United States Constitution - Page 3

United States Constitution – Page 3

The United States Constitution is a procedural document. The Constitution answers the question of, “who decides?” For example, does the federal government have the power to make the use or production of marijuana or cocaine illegal? That’s a procedural question, and that’s what the Constitution answers. Contrary to what the Supreme Court says, the answer to this particular question is, “no, the federal government does not have this power.” The answer as to why is discussed in, the Commerce Clause and the War on Drugs.

Whether something should be legal or illegal is a policy question, not a procedural question. As such, issues are only up for a policy debate after the procedural question has been answered. For example, whether marijuana or cocaine should be legal or illegal is a policy question. Once it is determined the federal government has no authority to pass drug laws, the issue is left for each state to decide for itself. The Constitution contains some embedded policy, like restrictions on making anything but gold or silver legal tender in payment of debts and restrictions on impairing the obligation of contracts. There are many other examples of imbedded policy, but the Constitution is still a procedural document.

Constitutional Amendments

United States Constitution - Page 4

United States Constitution – Page 4

If Congress wants to pass laws (and thus set policy) outside the scope of its delegated, Enumerated Powers, Congress must follow the requirements of Article 5 of the Constitution. Article 5 requires at least two-thirds of both houses of Congress (the House of Representatives and the Senate) to pass a law asking for that power, then at least three-fourths of the states must delegate that power. Once this happens, Congress can pass laws within this new field of power.

A good historical example of this would be Alcohol Prohibition during the 1920s. Congress knew none of the delegated powers in Article 1, Section 8 authorized the federal government to pass laws banning or controlling the sale or distribution of alcohol. As such, Congress and the states ratified the Eighteenth Amendment which then authorized Congress to pass the Volstead Act, constitutionally authorizing Prohibition.

Many people today believe the Constitution is a “living document” that needs to adjust to changing times. Advocates of a living Constitution are essentially calling for unlimited federal legislative and judicial power. However, these people fail to consider that the Enumerated Powers of Congress were meant to be legitimately expanded over time through the Amendment process, rather than having the federal government unilaterally usurp and expand its powers outside the Amendment process of Article 5. As Thomas Jefferson said more than two-hundred years ago, “Nothing is more likely than that their enumeration of powers is defective. This is the ordinary case of all human works. Let us go on then perfecting it, by adding, by way of amendment to the Constitution, those powers which time and trial show are still wanting.”

George Washington, who ironically was responsible for the first significant federal usurpation of legislative power, warned of the results of aggrandizing federal power outside the scope of Article 5 and the amendment process. President Washington’s Farewell Address warned, “If, in the opinion of the people, the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed. The precedent must always greatly overbalance in permanent evil any partial or transient benefit, which the use can at any time yield.”

Constitution versus Constitutional Law

Constitution

The Constitution consists of seven “Articles” drafted on four large pieces of parchment (paper). The Constitution is what was carefully drafted, debated and ultimately ratified in the several state ratifying conventions. This website discusses the meaning of the Constitution as it pertains to the logic and plain meaning of the Constitution’s text.

Constitutional Law

Constitutional Law is the body of judicial decisions handed down by the United States Supreme Court and the lower federal courts. As this site will generally explain, Constitutional Law has little to do with the Constitution itself. The Supreme Court has handed down decisions blatantly inconsistent with the Constitution since shortly after the Constitution was ratified in 1788. However, the Supreme Court and lower federal courts have been rapidly accelerating this disconnect since the 1930s. Constitutional law is what law students are taught, and the dumbed down version of Constitutional Law is what you are taught in school as a child.

What does Federal mean?

The word, “federal,” is derived from the Latin word, “Foedus or Foederis,” which means, “treaty, agreement, covenant, compact.” The word federal does not appear anywhere in the Constitution. Federal was the word used by the “Framers,” or so-called, “Founding Fathers” to describe the nature of the government created by the Constitution.