Andrew's Blog

The United States is, or claims to be, a constitutional republic. Let's examine what that means.

A constitutional form of government is one in which the government is obligated to follow the law. The US Constitution is, it says, “the supreme Law of the Land” — the law before all other law. But more than that, it's the law that brings the federal government into existence, and the only font of legitimate government authority. The “will of the people” set the Constitution in motion, and the Constitution set the government in motion. A law needs to be constitutional or it's no law, and any exercise of power that doesn't find its justification in the Constitution is a crime.

Let's Make Amends

The Constitution contains the means of its own amendment. This is important. Since the Constitution is the paramount law of the land, and the Constitution provides the means by which it can be modified, it follows that that is the only way in which the Constitution “evolves”. The operation of the Constitution doesn't change by “finding a new interpretation” compatible with prevailing opinion; it changes by (in the words of George Washington) “an explicit and authentic act of the whole people” — or, in more practical terms, when an amendment is duly proposed, and ratified by three quarters of the states.

If “the majority of the people” want something the Constitution forbids, then it's entirely intentional that the majority should be frustrated. The law isn't a club to be wielded by state against state, or neighbor against neighbor. The Constitution exists to protect the 49% against the 51%. It's the levee that stems the tide of chaotic public opinion unless it finds a consistent, near-unanimous direction.

Most of the great crises in American history have arisen from this conflict between those who believe that the government is obligated to follow the law, and those who believe that the government is obligated to “do what's right” — i.e. bow to a prevailing opinion that doesn't have the clout to achieve its ends legally. In many cases through history the “do what's right” crowd has won, to great celebration. But the continuous erosion of the Constitution occasioned by those victories has left the people without their protection against mobocracy, and eroded away the entire concept of rule of law. People aren't supposed to live in fear that one day they will wake up and find that the law targets them for abuse and destruction — but today they do.

A Matter of Interpretation

So, the Constitution can't be swerved from its original intent except by amending it, but at a remove of hundreds of years, sometimes there are legitimate questions of just what that intent was. We can refer to the minutes of the constitutional convention, where alternatives were discussed and rejected, and there are a great deal of writings by the Framers and their contemporaries, but a crucial source of enlightenment comes from the ratifying debates in the individual states.

The Constitution wasn't universally loved at its introduction, and its passage was far from certain. There were many who believed (with some justification) that the stronger federal government it created would be able to trample on the rights of the states and the people. They argued long and hard against its ratification, and offered changes that would have to be made before they would accept it. But in the end, the Constitution was adopted, on the condition that the Bill of Rights accompany it.

That the ratification passed, was largely a result of the efforts of Federalists who set out to address each objection. So for instance, when Spencer raised an objection to the extent of federal jurisdiction in the convention of North Carolina, Maclaine reassures the group that

The powers of Congress are limited and enumerated. We say we have given them those powers, but we do not say we have given them more. We retain all those rights which we have not given away to the general government. [...] It is as plain a thing as can possibly be, that Congress can have no power but what we expressly give them. There is an express clause, which, however disingenuously it has been perverted from its true meaning, clearly demonstrates that they are confined to those powers which we have given them. This clause enables them 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 any department or officers thereof. This clause specifies that they shall make laws to carry into execution, all the powers vested by this Constitution, consequently they can make no laws to execute any other power.

Which gives a clear exegesis of the “necessary and proper” clause. The Constitution was ratified on the basis of that interpretation. It must rest on that interpretation. The words of Maclaine and others like him should be in the ears of every judge and justice, second only to the text of the Constitution itself, unless they're superseded by amendment to that text.

The President

The Constitution doesn't provide for any direct way for the people to elect the President. It doesn't even require that the people are indirectly asked who they want the President to be. It leaves it up to the states to decide how to choose their Presidential electors, and in the early days many state legislatures did so without putting the matter to a vote at all. Why wasn't this a bigger issue than it was?

I'll claim it was because the Constitution did not, and still does not, give the President any power, or any discretion, over the peacetime domestic affairs of any citizen. The President is the administrative servant of Congress, charged with ensuring that the laws are “faithfully executed”, and the public face of Congress, charged with dealing with foreign powers on their behalf.

The President has a head of state's power to make treaties — only with the consent of the Senate. The President makes appointments — only with the consent of the Senate. The President commands the armed forces — but only Congress can declare war. The President has the power to veto bills — but Congress may override it.

The President is responsible for the smooth operation of the executive, but the duties of the executive are set by law. The President can't order anyone to do anything except what the law (rooted in the Constitution) requires of them, nor order them not to perform any duty the law requires of them. Any such order would be illegal and contrary to the oath of office.

The Future and the Past

If there's to be any hope of a future for democracy and civil rights in the US, or anywhere in the world, it needs to proceed from the principle that the government and the people alike are bound by the law, and that the “consent of the governed” is mediated by a Constitution which sometimes (even frequently) ties the hands of the majority in order to protect the diverse individual needs of the minority.

Unfortunately there is no political party which embraces such a principle. In neglecting it they put the freedom and the very lives of their constituents at risk. But perhaps the problem lies in the nature of party itself. In 1796, when George Washington wrote those words I quoted above about the Constitution, he was tired and angry at Thomas Jefferson for gathering an opposition. In his “Farewell Address” he writes about the dangers of parties. He wouldn't acknowledge that, in truth, he was the spokesman for the nation's first party, doing his best to shut down its second. But despite that he was surprisingly prescient when he wrote that, if we don't cut them off at the knees, political parties will result in “the alternate domination of one faction over another, sharpened by the spirit of revenge”, and will put into power “cunning, ambitious, and unprincipled men” who will invite corruption, use government for their own ends, and leave our politics open to meddling by foreign powers. You might think he had a crystal ball on 2025, but the truth is that it was an entirely foreseeable outcome 250 years ago, when some clever people tried to build a machinery to prevent it. Unfortunately the machine, the Constitution, has been plagued by mechanics who never read the manual, and by vicious drivers.