I am neither a constitutional scholar nor a legal scholar. Nor do I wish to become one. Instead I decided to do what these "experts" said they had done and that any of us can easily do. I decided to read the Constitution. And while I was at it I decided to read two other key documents from the Revolutionary period. I read the Declaration of Independence and the Articles of Confederation. (If you do not know what the Articles of Confederation are then you are not a constitutional scholar nor are you an expert of the Revolutionary period.) But first a little background.
A number of the founding fathers were well educated people. The others were well informed individuals. At the time of the Revolution the subject of how governments should be put together (constituted) and how they should operate were popular subjects of discussion. Martin Luther published his "95 theses" in 1517. This kicked off the Protestant Reformation and resulted in centuries of political upheaval in Europe. Entire wars were fought over religion. To a lesser degree there were, for instance, big battles over who would succeed to the throne of England with factions lined up along religious lines. This sparked a lot of discussion over the proper relationship between religion and government. Opinions differed, often violently.
A side effect of all this upheaval was a long and serious discussion over how governments should be constituted. One of many to weigh in on the subject was John Locke. I am not going to go into his thinking or that of anyone else's. But all this turmoil led to a lot of people spending a lot of time thinking about the subject in the period leading up to the Revolutionary War. The disputants were not only familiar with various relatively recent models such as those of England or France. They were also familiar with how government worked at other times and in other places. Take the case of ancient Greece. They were familiar with differences between governance in Athens versus that in use in Sparta. They were also familiar with the "Republic" period in ancient Rome and how Roman governance evolved as a series of dictators and emperors replaced the that model with others. In short they had studied a lot of examples of how things should not be done.
Before the American Revolution governments had generally run on the "strong man" principle. You had a strong man, a King, Emperor, Pope, whatever. Whatever he said was the law of the land. One of many examples was the French King Louis XIV. He famously said something that is usually translated as "I am France". Mostly what people argued over prior to the American Revolution period was how succession should work. The strong man generally held his position for life. When he died (or was assassinated) someone else took over. The most common "succession rule" was that the title and job devolved to his oldest son. The next most popular method was that the job went to his designated heir. History is littered with examples of this process going horribly wrong.
It is important to understand that this "strong man" approach was the rule rather than the exception. And in spite of all the times things went horribly wrong (bad strong man, bad succession process) transferring the job to the old strong man's eldest son on his death was by far the most common method of succession. There has to be a reason for this (both the strong man model and a simple succession rule). And that reason is "this is the natural way of doing things". It wouldn't have been as popular at as many times and in as many places if it wasn't. We even see this sort of thing going on today. The most visible example is with North Korea where the only three leaders the country has ever had are Kim, son of Kim, and son of son of Kim. But it pops up routinely elsewhere. Two of the leading Presidential candidates in the US are widely seen as "dynastic" candidates.
If "strong man" is the natural and normal way government is done it follows that the way we do it, Constitutional Democracy with an election determining the successor, is not natural and definitely not the normal way it is done. And that means that there are always forces that want to move us away from it and toward the more natural and normal "strong man" form of government. I could go into some additional analysis about why our founding fathers did what they did. Instead I am just going to focus on what they did. And by "did" I mean the words they put into the three critical documents I am going to review. And I am just going to look at what the plain language says. To work.
I am going to start with the Declaration of Independence. Somewhere along the line I read a book on it and as a side effect I had read it, all of it. But that was a long time ago so I read it again. Like the Constitution most people are only familiar with a few phrases from the Declaration. It starts out with that wonderful phrase "When in the course of human events" (I have preserved the often idiosyncratic capitalization found in the "official" versions of all three documents I consulted) and goes on from there with some language that a lot of us recognize. It ends with another ringing (and very familiar) phrase "we mutually pledge to each other our lives, our Fortunes and our sacred Honor".
The meat of the matter is also short:
That whenever any Form of Government becomes destructive to these ends, it is the Right of the People to alter or abolish it, and to institute a new Government
This is extremely radical stuff. This is the polar opposite of conservatism. Conservatism is about order and continuity. Government overthrow is, by definition, an illegal and revolutionary act. That is neither orderly nor a continuation of what has come before. Boiled down the idea here is revolution is always appropriate if the justification is sufficient. The bulk of the Declaration lays out the tail of woe citing example after example of horrible, very bad, no good things King George III has done. So what are these horrible things?
Most of them seem pretty obscure and hard to figure out now. For instance: "He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people, and eat out their substance." Are any specific examples provided to bolster this statement? No! It is assumed that the specifics are common knowledge and beyond dispute. And this is true of many of the examples. There are no specifics. Nothing about taxes on tea or the "stamp act", items which featured prominently in my early education. Another example of this pattern of general accusation followed by a lack of specifics is "He has refused his Assent to Laws, the most wholesome and necessary for the public good." There are many other examples along these lines that I could cite. But I won't. Instead I will confine myself to taking a quick look at only one more of King George III's "injuries and usurpations" before I leave the Declaration and move on.
Apparently, "He has endeavored to prevent the population of these States; for the purpose of obstructing the Laws of Naturalization of Foreigners; refusing to pass others to encourage their migrations hither". Population increase, the Declaration declares, is a good thing. Naturalization (converting non-citizens into citizens) is a good thing. Immigration ("migrations hither") is a good thing. So we started a revolution because we were for a population increase, for naturalizing immigrants, and for immigration. I will let my gentle readers decide which of the current crop of Presidential Candidates stands with the sentiments expressed in Declaration and which profess to be unalterably opposed to these very same sentiments. With that let me pass on to the Articles of Confederation.
The Articles were finalized on November 15, 1777 and came into force on March 1, 1781 when they had been ratified by enough states. This was the law governing the operation of the Continental Congress. There main purpose was to allow and enable the Continental Congress to pursue the Revolutionary War. So there was a lot of detail pertaining to this. And the name "The United States of America" comes from this document. It grants citizenship to "the free inhabitants of each of these States" with the exception of "paupers, vagabonds, and fugitives". So slaves are explicitly excluded from citizenship. Women are also excluded but not explicitly. The "paupers, vagabonds" language was used to restrict the right to vote to land owners. You could be as wealthy and upstanding as could be but if you didn't own land or other real property you couldn't vote.
More importantly the Articles are noted for what they did not contain. The US government of the time consisted of the Continental Congress. There was no executive and no permanent judiciary. There were elaborate and complicated provisions laid out to create temporary "commissioners or judges to constitute a court" to handle various kinds of disputes. But each commission was a "one off" effort created to hear and pass on a single specific dispute. Once that dispute was resolved the court would be dissolved and another one would have to be created from scratch to handle any other dispute.
The Congress did have some power beyond just the prosecution of the war. It could step in to handle disputes between the states. But the way it stepped in was to create one of those "one off" courts I just finished discussing. It also had the power to manage international relations. In fact, the states were specifically prohibited from going around the Congress on international matters. But they frequently did so anyhow.
And Congress had the power to levy taxes. But the taxes were on the states. The Congress would set a rate. Then a formula was applied to calculate each state's share. Then the state was required to pay that share over to the Congress. This was all fine in principle. But the states frequently refused to fork over the money. And the Congress had no way to enforce its edicts. So in practice the Congress, and by extension, the US went broke and stayed there. Theoretically the Congress had an army that reported to it but the Congress paid the army (and everyone else) in Continental Dollars and by the end of the Revolution they were worthless. So by shortly after the end of the Revolutionary War the Continental Army ceased to exist anywhere but on paper.
By the end of 1786 it was obvious to everyone that the government created by the Articles of Confederation was a complete failure. Something needed to be done and done quickly. So in Philadelphia, starting on May 14, 1787 and running until it finished business on September 17, 1787, a convention was put together to come up with a fix. The initial idea was to amend the Articles but the convention quickly decided to completely replace it instead. The result was a proposed "Constitution" that went into effect on March 4, 1789 after nine states had ratified it. All thirteen original states had ratified it by 1790. This was important because the Articles required all thirteen original states to ratify amendments before they went into effect. Almost immediately amendments to the Constitution were proposed. The first was proposed in September of 1789 and ratified in 1791. We have been at the amendment process ever since.
The system of government in the Constitution was completely different. There were now three main components. An executive and a permanent judiciary were added. And instead of one legislative body, the Continental Congress, we now had two. The US Senate had an organization similar to the Continental Congress. In the Continental Congress each state could send a number of delegates but got only one vote. In the Senate, the delegate count was standardized at two delegates and each one got a separate vote. The House of Representatives was a complete divergence from the old model. Here the size of the delegation was determined by the state's population and each delegate got a separate vote. Legislation generally passed through both legislative bodies and was implemented by the executive. The judicial got the final word on whether it was constitutional.
Some things were carried over from the Articles. The US government, not the states, was responsible for international relations. The new government was now more explicitly responsible for relations between the states. And the US government, specifically the Congress (a combination of the two legislative bodies), had the power to declare war. Article I Section 8 states "The Congress shall have the power To . . . declare War". The US Government also had the power to "lay and collect Taxes, Duties, Imposts and Excises". This government was no longer dependent on the states doing their duties. This government could "lay and collect" money directly.
Article I of the Constitution lays out a lot of areas where it is appropriate for the legislature to make laws. If that's not enough, there is also some "catch all" language. Congress has the power to "make all laws which shall be necessary and proper for carrying into Execution the forgoing Powers, and all other Powers vested in this Constitution in the Government of the United States or in any Department or Officer thereof."
Article II covers the President. Section 1 starts out in a very general manner. "The executive Power shall be vested in a President of the United States of America." That's it. After that it wanders into the length of his term in office, a bunch of minutia about how he will be elected, what qualifications he must have to stand for the office (i.e. "attained the Age of thirty five years"), some "succession" language, the oath of office, etc. Nothing about his powers. That has to wait for section II.
Section 2 starts by saying that he "shall be the Commander in Chief of the Army and the Navy of the United States". He also "may require the Opinion, in writing" of various government officials. Next, he may "make Treaties", "appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court", and "other officers . . . not otherwise provided for". Sounds good. But in my compression I have left the infamous "Advice and Consent" language out. He has to consult the Senate when making appointments. What specifically "Advise and Consent" means has been argued about for hundreds of years. If you want to make a contribution I suggest you read the language herein carefully and go for it.
Section 3 tells us he "shall from time to time give to the Congress Information of the State of the Union". This is the language underpinning the now annual "State of the Union" speech current Presidents give toward the start of the calendar year. Does the constitution require the President give it in person? No! For a long time Presidents sent written messages. Does it require it be given annually near the beginning of the calendar year? No! That's just the modern tradition.
In terms of power, that's it. The President has the power to be the chief executive. He has the power to be the commander in chief of the armed forces. (There was no Air Force at the time. And the status of the Marines, Coast Guard, and Merchant Marine are more or less ambiguous as they did not exist in their current forms at that time.) He has the power to appoint various people but the appointment power is subject to "Advice and Consent", whatever that means. That's it.
Article III lays out the Court component of the government. But it is pretty process oriented. The Supreme Court is laid out in some detail. But the workings of "such inferior courts" is left to Congress. "Congress may from time to time ordain and establish" the details. Notice that this is another power given over to Congress. The founding fathers' intention was that Congress would set policy. They have the power to create statues governing how things will be done. The executive (President) is passive. He just executes the statutes. He has no control over what they direct him to do or not do. The role of the courts in all this is left completely ambiguous.
It hasn't worked out that way. To see why just look at the modern Congress. It is broken down into numerous factions. No faction has enough power to actually govern. They only have enough power to impede things and block the efforts of other factions. The President is the single chief executive. He sets the agenda for the entire executive branch. Theoretically, he could easily be thwarted by the legislature. All they have to do is pass a statute directing that this be done or not done. When they act in a coherent manner they can control policy. President Obama has failed to close Guantanamo because Congress has been able to get statutes passed into law that force it to stay open. Contrast this to the whole issue of War.
As I indicated above, the Constitution specifically gives the power to declare War to congress. But the last time Congress actually declared war was in late December of 1941 after the Japanese had bombed Pearl Harbor and the Germans had declared war on us. President Johnson famously went to war in Vietnam based on a vague piece of legislation called "The Gulf of Tonkin Resolution". Congress and the executive have been battling back and forth about this for over 50 years now. Congress has effectively ceded power in this area in spite of the plain language of the Constitution by a combination of actions and inactions. Congress controls the purse strings (see Article I). But they tend to be reluctant to cut the money off so Presidents find a way to have wars and pay for them.
But its even worse than that. The whole battle has devolved into something called an AUMF, an Authorization for the Use of Military Force. Congress passed a number of them in the immediate aftermath of 9/11. They are still being used today to justify a number of military actions. So it's the President's fault for abuse of executive powers, right? Nope! President Obama has specifically asked that the current AUMF laws be updated. He has even sent sample language (which he is not required to do) to Congress. All they have to do is repeal the old AUMF statutes and replace them with whatever they want even if that is nothing. But they have not acted. They have not held hearings. They have not introduced alternatives to the President's proposal. They have not acted, nor does it look like they are going to act soon, an any proposal. They have done exactly nothing. Well, they have created a vacuum and they have expended vast amounts of hot air criticizing what the President is doing or not doing.
And the whole AUMF debacle is a frequent occurrence. Congress leaves a vacuum and the executive fills it. The cases where they actually do the work to set policy as in the Guantanamo example are far less common. But the most common situation is actually the situation where things work as they should. Congress passes a bill that sets general policy. But they leave the details to the executive. Statutes frequently include language directing some portion of the executive to draft regulations co cover "details" like implementation or rates or who specifically is affected and how. The legislation covering the EPA (Environmental Protection Agency) says "regulate cancerous chemicals". The EPA then decides which chemicals are cancerous and to what extent they should be regulated. The Constitution itself is a classic example of the adage that you can't write a law to cover every situation. You want to allow the system some flexibility.
The flexibility in the Constitution comes in two forms. First, it is purposefully vague in a lot of areas. This is most obvious in Article III, the one dedicated to the courts. It is very vague. Over time the details have been filled in and now how our legal system works has been determined in exquisite detail. But that detail is entirely missing from the Constitution. Secondly, the Constitution includes an amendment process. The first use of this process was to add the ten "Bill of Rights" amendments. But it has now been successfully amended 27 times and will most likely be amended some more in the future.
In starting to wrap things up I want to take a look at Section 1 of the 14th amendment. It reads "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of the citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny any person within its jurisdiction the equal protection of the laws."
This amendment was passed after the Civil War to make it abundantly clear that former slaves are full citizens. But many conservatives are "strict constructionists". That means they believe that the way you interpret the meaning of a provision of the Constitution is to look at the plain language. So let's consider the plain language. You are a citizen if you are born in the US. How do you establish where you were born? You point to your birth certificate. It is unconstitutional for a state to "abridge the privileges" of a citizen. And many privileges hang on whether you are a citizen or not. So it is an abridgment if a state impedes a citizen's ability to prove he or she is a citizen.
Texas and other states are denying birth certificates to children manifestly born in Texas and, therefore, the US. Being born in Texas (or any other state) is all it takes to make them a citizen. By my logic the state's action is unconstitutional based on a plain language interpretation of the Section 1 of the 14th amendment because they are abridging the privileges of a citizen by denying that citizen a birth certificate. But it is conservatives, the very ones who claim to be the protectors of the Constitution and the supporters of strict constructionism, who are holding up the issuing of birth certificates.
One of the privileges of citizenship is the right to vote. Yet conservatives in Texas and many other states are erecting barriers that make it hard for some but not all citizens to vote. This is an "equal protection" violation. And note that the phrase "equal protection" is taken directly from the section quoted above. It is certainly reasonable to require proof of citizenship. But the appropriate document for that is a birth certificate (or naturalization papers). It is not photo ID. Birth certificates do not now and have never in the past included a photo ID. And many "valid" forms of photo ID do not guarantee that a person is a citizen. Another thing some states have done is to make polling places hard to get to in some areas but easy to get to in other areas. I contend that the plain language I quoted above makes these kinds of things unconstitutional.
I will now warn you that the Constitution has things to say about citizenship and voting rights in other places. I leave it as a homework assignment for you to hunt them all down then try to reconcile them. It is common to find that two or more provisions of the Constitution sometimes come into conflict. One of the most important functions of the judiciary is to identify these conflicts and come to a resolution. Often this is done by making reference to the facts of the specific case under consideration and making a determination that in this case one right takes precedent over another. Which right? It depends. In other words, nothing is absolute.
Let me finish wrapping things up by going back to the main text of the Constitution, specifically Article IV. It reads in part "all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land". In plain language what this means is that any provision of a ratified treaty is exactly the same as if that same provision was part of a US law. There has been a line of argument that "it's just a treaty. So it's not a real law. So we can just ignore it if that is convenient." No! The Constitution explicitly says that a ratified treaty is, in fact, the law of the land. The US government signed the Geneva Conventions. The US government ratified the Geneva Conventions. The Geneva Conventions are treaties. They are the Law of the Land in the US no matter how inconvenient that might be to some people. Why? 'Cause the Constitution says so.
There's lots left that I have skipped over. I invite everyone to do what I did and read these three documents. All three can easily be read in an afternoon. It won't make you a Constitutional scholar. But it will definitely give you a much better idea as to what's actually there (and, just as importantly, what's not there). And you will end up with a much better idea what it means than you would get by listening to most of the "experts" on TV.
