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Anti-Commandeering Doctrine Federalist #46 Intelwars james madison nullification Strategy Supreme Court

The Anti-Commandeering Doctrine: An Introduction

The anti-commandeering doctrine provides a powerful tool to undermine overreaching, unconstitutional federal power. So, what is this doctrine? What is it based upon? And how can it be used as an effective tool for liberty?

How Do We Confront Federal Overreach?

Most people assume the feds have the final say. When Uncle Sam says jump, states and local government simply ask, “How high?” But given that the federal government was intended to limit its actions to constitutionally delegated powers and all other authority was left “to the states and the people” per the Tenth Amendment, how do we hold the federal government in check? How do we stop it from exercising powers not delegated?

This isn’t a new question. In fact, those skeptical of the Constitution raised it during the ratification debates. James Madison answered it in Federalist #46.

In his blueprint for resisting federal power, Madison offered a number of actions, but most significantly, he suggested that a “refusal to cooperate with officers of the union” would impede federal overreach.

“Should an unwarrantable measure of the federal government be unpopular in particular States, which would seldom fail to be the case, or even a warrantable measure be so, which may sometimes be the case, the means of opposition to it are powerful and at hand. The disquietude of the people; their repugnance and, perhaps refusal to cooperate with officers of the Union, the frowns of the executive magistracy of the State; the embarrassment created by legislative devices, which would often be added on such occasions, would oppose, in any State, very serious impediments; and were the sentiments of several adjoining States happen to be in Union, would present obstructions which the federal government would hardly be willing to encounter.” [Emphasis added]

What Is the Anti-Commandeering Doctrine?

Anti-commandeering is a longstanding Supreme Court doctrine. In a nutshell, the anti-commandeering doctrine prohibits the federal government from “commandeering” state personnel or resources for federal purposes.

In effect, the federal government is constitutionally prohibited from requiring states to use their personnel or resources to enforce federal laws or implement federal programs. State and local governments cannot directly block federal agents from enforcing federal laws or implementing federal programs, but they do not have to cooperate with the feds in any way. For instance, a local sheriff cannot block ATF agents from enforcing a federal gun law, but the ATF cannot force the sheriff’s office to participate in the enforcement effort.

Which Supreme Court Cases support the Anti-Commandeering Doctrine?

The anti-commandeering doctrine rests on five landmark cases, the first dating back to 1842.

Prigg v. Pennsylvania (1842), Justice Joseph Story held that the federal government could not force states to implement or carry out the Fugitive Slave Act of 1793. He said that it was a federal law, and the federal government ultimately had to enforce it:

The fundamental principle applicable to all cases of this sort, would seem to be, that where the end is required, the means are given; and where the duty is enjoined, the ability to perform it is contemplated to exist on the part of the functionaries to whom it is entrusted. The clause is found in the national Constitution, and not in that of any state. It does not point out any state functionaries, or any state action to carry its provisions into effect. The states cannot, therefore, be compelled to enforce them; and it might well be deemed an unconstitutional exercise of the power of interpretation, to insist that the states are bound to provide means to carry into effect the duties of the national government, nowhere delegated or instrusted to them by the Constitution

New York v. United States (1992) the Court held that the regulations in the Low-Level Radioactive Waste Policy Amendment Act of 1985 were coercive and violated the sovereignty of New York, holding that “because the Act’s take title provision offers the States a ‘choice’ between the two unconstitutionally coercive alternatives–either accepting ownership of waste or regulating according to Congress’ instructions–the provision lies outside Congress’ enumerated powers and is inconsistent with the Tenth Amendment.

Sandra Day O’Connor wrote for the majority in the 6-3 decision:

As an initial matter, Congress may not simply “commandee[r] the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program.”

She later expounded on this point.

While Congress has substantial powers to govern the Nation directly, including in areas of intimate concern to the States, the Constitution has never been understood to confer upon Congress the ability to require the States to govern according to Congress’ instructions.

Printz v. United States (1997) serves as the lynchpin for the anti-commandeering doctrine. At issue was a provision in the Brady Gun Bill that required county law enforcement officers to administer part of the background check program. Sheriffs Jay Printz and Richard Mack sued, arguing these provisions unconstitutionally forced them to administer a federal program. Justice Antonin Scalia agreed, writing in the majority opinion “it is apparent that the Brady Act purports to direct state law enforcement officers to participate, albeit only temporarily, in the administration of a federally enacted regulatory scheme.”

Citing the New York case, the court majority declared this provision of the Brady Gun Bill unconstitutional, expanding the reach of the anti-commandeering doctrine.

We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program.

Today we hold that Congress cannot circumvent that prohibition by conscripting the States’ officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policymaking is involved, and no case-by-case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.

Independent Business v. Sebelius (2012), the Court held that the federal government cannot compel states to expand Medicaid by threatening to withhold funding for Medicaid programs already in place. Justice Robert Kennedy argued that allowing Congress to essentially punish states that refused to go along violates constitutional separation of powers.

The legitimacy of Congress’s exercise of the spending power “thus rests on whether the State voluntarily and knowingly accepts the terms of the ‘contract.’ ” Pennhurst, supra, at 17. Respecting this limitation is critical to ensuring that Spending Clause legislation does not undermine the status of the States as independent sovereigns in our federal system. That system “rests on what might at first seem a counterintuitive insight, that ‘freedom is enhanced by the creation of two governments, not one.’ ” Bond, 564 U. S., at     (slip op., at 8) (quoting Alden v. Maine, 527 U. S. 706, 758 (1999) ). For this reason, “the Constitution has never been understood to confer upon Congress the ability to require the States to govern according to Congress’ instructions.” New York, supra, at 162. Otherwise the two-government system established by the Framers would give way to a system that vests power in one central government, and individual liberty would suffer.

Murphy v. NCAA (2018), the Court held that Congress can’t take any action that “dictates what a state legislature may and may not do” even when the state action conflicts with federal law. Samuel Alito wrote, “a more direct affront to state sovereignty is not easy to imagine.” He continued:

The anticommandeering doctrine may sound arcane, but it is simply the expression of a fundamental structural decision incorporated into the Constitution, i.e., the decision to withhold from Congress the power to issue orders directly to the States … Conspicuously absent from the list of powers given to Congress is the power to issue direct orders to the governments of the States. The anticommandeering doctrine simply represents the recognition of this limit on congressional authority.

Taken together, these five cases firmly establish a legal doctrine holding that the federal government has no authority to force states to participate in implementing or enforcing its acts.

Madison’s advice in Federalist #46, supported by the anti-commandeering doctrine, provides a powerful tool that states can use against federal acts and regulatory programs.

Can’t the Federal Government Punish Wayward States By Cutting Funding?

In simple terms, the federal government cannot use funding to coerce states to take a desired action. Independent Business v. Sebelius directly addressed this issue.

The federal government can withhold funding related to any action that a state refuses to take. For instance, if the state refuses to enforce federal marijuana laws, the federal government can cut funding relating to drug enforcement. But it cannot cut unrelated funding to punish the state. In other words, Congress couldn’t cut education funding to punish a state for not cooperating with marijuana prohibition.

How Do We Determine What Is or Isn’t Constitutional? Isn’t that the Supreme Court’s Job?

The short answer is it doesn’t matter. Constitutionality isn’t part of the equation. The anti-commandeering doctrine doesn’t depend on a finding of constitutionality. States can refuse to provide personnel or resources for any federal activity regardless of its constitutionality. The utilization of state recourses, funds and personnel are totally at the discretion of the state government.

Will This Strategy Work?

The federal government relies heavily on state cooperation to implement and enforce almost all of its laws, regulations and acts. By simply withdrawing this necessary cooperation, states and localities can nullify many federal actions in effect. As noted by the National Governors’ Association during the partial government shutdown of 2013, “states are partners with the federal government on most federal programs.”

Partnerships don’t work too well when half the team quits. By withdrawing all resources and participation in federal law enforcement efforts and program implementation, states, and even local governments, can effectively bring the federal actions to an end.

Consider the 36 states that have legalized marijuana despite federal prohibition.

The legalization of marijuana in a state removes a layer of laws prohibiting the possession and use of marijuana even though federal prohibition would remain in effect. This is significant because FBI statistics show that law enforcement makes approximately 99 of 100 marijuana arrests under state, not federal law. When states stop enforcing marijuana laws, they sweep away most of the basis for 99 percent of marijuana arrests.

Furthermore, figures indicate it would take 40 percent of the DEA’s yearly-budget just to investigate and raid all of the dispensaries in Los Angeles – a single city in a single state. That doesn’t include the cost of prosecution. The lesson? The feds lack the resources to enforce marijuana prohibition without state assistance.

The same is true for virtually every federal action, from gun control, to Obamacare, to FDA mandates. The federal government depends on the states. And the states don’t have to cooperate.

The post The Anti-Commandeering Doctrine: An Introduction first appeared on Tenth Amendment Center.

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BILL OF RIGHTS History Incorporation Doctrine Intelwars james madison Today in History

Today in History: Bill of Rights Ratified

Today in 1791, the first ten amendments were ratified by the requisite number of American states. As stated in the Preamble of the document, at the time of the Constitution’s adoption many within the states expressed a desire to prevent “misconstruction or abuse” of the federal government’s power. These ten amendments became known as the Bill of Rights, even though various bills of rights already existed at the state level.

Prior to arriving at 12 proposed amendments to send to the states for ratification, the states listed various proposals for amendments in their original ratification documents, almost all of which were premised upon the idea of limiting federal authority in various ways. Skeptics and opponents of the Constitution did not want to take Federalist assurances at face value, and hoped the amendments would make the boundaries of the federal government explicit and unmistakable. Patrick Henry, George Mason, Melancton Smith, John Lansing, Luther Martin, and Elbridge Gerry were among them.

While many believe the Bill of Rights was an obvious addendum that was popularly supported by all factions, it was not. It was the original position of many prominent Federalists, including James Madison, Alexander Hamilton, Roger Sherman, and James Wilson, that it was wholly unnecessary. This was because Federalists had promoted the Constitution in such a way as to guarantee that the federal government could only exercise the powers listed in the document, reserving all others to the states, and making the assumption of any unspecified power a bold usurpation.

In his famous State House Yard Speech, Wilson claimed the addition of a bill of rights would be “superfluous and absurd.” Echoing this sentiment in Federalist #84, Hamilton asked, “for why declare that things shall not be done which there is no power to do?” Still, the Federalists acquiesced when overwhelming support for a bill of rights materialized in the states, and the ratification of several, including Massachusetts and New York, hinged upon its inclusion.

The First Congress allowed Madison to collate the list of amendments to send to the states for their consideration, and Sherman made the determination that those that were adopted should be affixed to a separate document rather than interspersed throughout the existing text. Although 12 amendments were sent, only ten were ratified by 1791. One of those not ratified at the time, which would prohibit alteration of Congressional pay until after the next election, was finally ratified in 1992.

Ironically, what was originally an explicit list of prohibitions against federal power has gradually turned into an instrument regularly cited by federal judges in the interests of expanding federal power and regulation over individual rights. Whereas the Bill of Rights originally intended to act as limitations against only the general government, the federal judiciary now claims an overarching, supervisory power over the state governments as well.

It does so through a fallacious notion that the 14th Amendment incorporated these prohibitions against the state governments as well, a principle known as the “incorporation doctrine.”

As Raoul Berger demonstrated definitively in his seminal work on the topic, “Government by Judiciary,” this contention is fallacious and does not meet historical or logical scrutiny. The federal judiciary did not even claim this power until 55 years after the adoption of the 14th Amendment.

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Anti-Commandeering Doctrine Intelwars james madison local nullification

There is No Anti-Commandeering Doctrine when Local Governments Take on a State

The Tenth Amendment Center’s practical nullification strategy relies on James Madison’s blueprint for taking on federal power. Madison advised that “a refusal to cooperate with officers of the union” would create impediments and obstructions to federal acts.

The Supreme Court’s long-standing anti-commandeering doctrine supports this nullification strategy. In a nutshell, this legal doctrine prohibits the federal government from “commandeering” state and local personnel or resources for federal purposes.

In effect, the federal government cannot force state or local governments to cooperate in the enforcement of federal laws or the implementation of federal programs. With the Supreme Court affirming this doctrine in five major cases dating back to 1842, the feds are legally powerless in the face of state noncooperation.

A lot of people want to apply this anti-commandeering strategy to state governments as well. The idea would be for a county or local government to simply refuse to enforce a state law. Activists have specifically pushed this strategy to block enforcement of state gun control laws. But local non-cooperation with state laws poses significant problems from a legal standpoint because the relationship between a city or county and a state is much different than the relationship between a state and the federal government.

By their action, the states created the federal government. Even though they make up part of the union, each state remains a sovereign political society. The states delegated some powers to the federal government and within its constitutional authority, the federal government enjoys supremacy. But outside of the federal government’s delegated authority, the states maintain their fundamental independence. In Federalist #32, Alexander Hamilton explained that under the new Constitution, the states would retain their sovereignty and independence, and would only be subject to the general government in those areas where power was specifically delegated to it.

“An entire consolidation of the States into one complete national sovereignty would imply an entire subordination of the parts; and whatever powers might remain in them, would be altogether dependent on the general will. But the plan of the convention aims only at a partial union or consolidation, the State governments would clearly retain all rights of sovereignty which they before had, and which were not, by that act, exclusively delegated to the United States.”

State governments and their local governments have a fundamentally different relationship. Cities and counties are “political subdivisions” of the state. They possess virtually no autonomy unless their state legislatures give it to them. And what the legislature can give, the legislature can take away. In fact, cities and counties exist at the will of the state government. The state legislature can change their borders, split them up, or even dissolve them completely. As a result, counties and cities have a legal obligation to follow the directives of the state government.

From a legal standpoint, no anti-commandeering doctrine exists for cities or counties. They cannot legally refuse to cooperate with state dictates. The state government can commandeer local personnel and resources for state purposes because cities and counties only exist as extensions of the state.

There are some exceptions to this rule. Some states, including Illinois, extend local governments “home rule” privileges, granting them some autonomy. But even in these states, the legislature can override home rule.

In practice, local governments can still refuse to enforce state laws or implement state programs. But unlike states that refuse to cooperate with the federal government, local governments can be punished by the state for their noncooperation. The state legislature can legally cut funding to local governments that refuse to enforce a state law. They even have the power to remove local officials from office or perhaps subject them to criminal penalties.

This makes local non-cooperation with a state government a very difficult strategy to carry out. It could prove successful if enough local entities ban together. But without the anti-commandeering legal doctrine to shield them, it’s much easier for a state to force local and county compliance. The states have legal cover when they refuse to cooperate with the federal government. Local governments enjoy no such legal shield against the state.

From a strategic standpoint, activists should be wary of trying to employ a strategy created for states to use against the feds as a tool for local governments to take on a state. It could be effective if enough local entities work together and create enough political pressure to dissuade the state from cracking down. But you need to be aware that local governments and their employees enjoy virtually no legal protection and the state has significant latitude in how it deals with an uncooperative local entity.

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2020 elections announcements election Election 2020 Intelwars james madison nullification president Richard Henry Lee Strategy Thomas Jefferson

What’s Next? Nullify! And then Nullify Some More

This is last night’s Tenther newsletter, which everyone in the nullification movement gets daily or weekly. Be one of them.

An elective despotism was not the government we fought for
-Thomas Jefferson, Notes on the State of Virginia (1784)

As I write this, it’s midnight, Eastern time – election night. Like you, I don’t know who won. But what I do know is this – no matter what happens with the counting, at the end of the day, we’re still facing the largest government in the history of the world.

I don’t say that lightly. 

When it comes to spending, for example, the so-called “federal” government in Washington D.C. spends nearly double what China does. And it spends almost 8-times more per capita than China’s “socialist state under the people’s democratic dictatorship.”

This is nothing like the government James Madison told us would have powers that are “few and defined.” Not even close.

Richard Henry Lee, in a letter to Samuel Adams on Oct. 5, 1787, might have the best view of what we’re facing today:

“I suppose my dear Sir, that the good people of the U. States in their late generous contest, contended for free government in the fullest, clearest, and strongest sense. That they had no idea of being brought under despotic rule under the notion of “Strong government,” or in form of elective despotism: Chains being still Chains, whether made of gold or iron.

When I started the Tenth Amendment Center back in 2006 (and for at least the next 2 years) establishment Republicans and pundits on the right attacked the TAC for opposing unconstitutional acts from the Bush administration.

“Move to Cuba” is a phrase we often heard when opposing the PATRIOT Act. Our opposition to the Iraq war got us hit with “You’re with the terrorists.” And working in the states to nullify the REAL ID act or federal prohibition, branded us “libtards.”

Of course, the attacks continued when Obama took office, and while the names we were called changed to “racist” or “neoconfederate” – the message was the same: oppose centralized power, and the people who hold that power will see you as the greatest threat to their control.

But, to us, the Constitution matters no matter who’s in power in Washington D.C. – and no matter how much they attack our work.

As Thomas Jefferson put it in his argument against the Constitutionality of a National Bank:

“To take a single step beyond the boundaries thus specially drawn around the powers of Congress, is to take possession of a boundless field of power, no longer susceptible of any definition.”

The essential question, of course, is WHAT’S NEXT?

Jefferson again gave us the answer in his draft of the Kentucky Resolutions of 1798, pointing out that “vote the bums out” is a good strategy “in cases of an abuse of the delegated powers.”

But…

“Where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy

James Madison told us that states are “duty-bound to interpose.”  

Duty. Not just a good idea.

And we’ll continue that duty no matter which team is in power, or what person occupies the White House.

As Samuel Adams put it, “All might be free if they valued freedom – and defended it as they ought.” 

Defending freedom doesn’t mean waiting for the largest government in history to give us permission to live free. It means “we the people” need to learn how to exercise our rights whether the government wants us to – or not.

In the last few years, we’ve gotten more nullification bills introduced – and PASSED – than at any time in history. 

But we’ve got a LOT of work yet to do.

We absolutely cannot be complacent, and we need your help now more than ever. I hope you’ll stand with us in this effort by starting a new membership to support our work. As little as 2 bucks a month means a great deal to us.

With your help, we’ll not only get the job done right now, but we’ll go much further for the Constitution and liberty in the years to come.

JOIN TAC, Support the Constitution and Liberty!
https://tenthamendmentcenter.com/members/

Concordia res parvae crescunt
(small things grow great by concord)

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Constitution delegated-powers Founding Principles Intelwars james madison James Wilson Ratification

The Nature of the Federal Government

We have flipped the American constitutional system on its head. It operates exactly the opposite of how the supporters of the Constitution said it would.

So, what type of government did the Constitution create?

Is it powerful or weak? Is it expansive or limited? How much authority does it wield? Can it act in any situation, or does it have a limited sphere? How you answer these questions will shape your view of American government and guide your understanding of every clause in the Constitution.

During the Philadelphia Convention, many framers favored a strong national government. In fact, James Madison even proposed a federal veto on state laws. But as the convention wore on, delegates voted down proposals to create a centralized government one by one – including Madison’s federal veto. The Constitution that emerged from the Convention created a general government with a few, defined, enumerated powers.

The Philadelphia Convention reveals much about the framers’ intent, but we find the true meaning of the Constitution in the ratification process. It was there that the people consented to the new system. By studying the debates, we come to understand exactly what the delegates representing the people thought they were consenting to.

The voters in each state were an important part of the ratification process. They elected representatives to conventions convened to approve or reject the document. The debates in these state conventions illuminate their understanding of the Constitution at the time and thus reveal the original meaning, as I discussed in chapter one. As you’ll recall, James Madison affirmed this view of constitutional interpretation in a letter to Henry Lee.

“I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that be not the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful exercise of its powers.”

Many Americans misconstrue the ratification debates, assuming those favoring the Constitution (the federalists) advocated for a strong, central government, while opponents (anti-federalists) wanted a weaker general government. In fact, virtually everybody agreed (at least publicly) that the Constitution was intended to create a limited federal authority, leaving most power to the states. The actual debate revolved around whether the Constitution, as written, would create such a limited government. The federalists insisted that it would, while anti-federalist expressed deep fear that it would not.

The Federalist Papers are the best-known source of federalist arguments. Published in New York newspapers, these essays, written by John Jay, James Madison and Alexander Hamilton, laid out key arguments to support ratification and give us a strong sense of how proponents “sold” the Constitution to a skeptical public. Think of it like the sticker taped inside the window of a used car.

Madison made the clearest case for the Constitution’s limited nature in Federalist # 45.

“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation and foreign commerce; with which the last the power of taxation will for the most part be connected. The powers reserved to the several States will extend to all objects which, in the ordinary course of affairs, concern the lives, liberties and properties of the people, and the internal order, improvement and prosperity of the State.” [Emphasis added]

While the Federalist Papers shed valuable light on arguments used to “sell” the Constitution to the people, they weren’t nearly as influential at the time as you might think based on their popularity today. In fact, the Federalist essays received only limited circulation outside New York. The records of the ratification debates are more important, and provide us with a deeper and more illuminating understanding of the original meaning as it was explained to reluctant convention delegates.

Without exception, these debates record supporters arguing vehemently that anti-federalist fears of a powerful national government were unfounded. It was on this basis that the Constitution was ratified. Had the people believed that the federal government would morph into the all-powerful entity we live under today, they would have soundly rejected its ratification.

James Wilson of Pennsylvania set the stage in his famous State House Yard speech on Oct. 6, 1787. Anticipating objections to expanding power of the general government, he asserted that Congress would have very limited authority, circumscribed by the specific delegated powers. He distinguished between the state constitutions, which empowered government to do anything not prohibited and the new U.S. Constitution, which limited the government’s power to only those objects specified.

“It will be proper … to mark the leading discrimination between the State constitutions and the constitution of the United States. When the people established the powers of legislation under their separate governments, they invested their representatives with every right and authority which they did not in explicit terms reserve; and therefore upon every question respecting the jurisdiction of the House of Assembly, if the frame of government is silent, the jurisdiction is efficient and complete. But in delegating federal powers, another criterion was necessarily introduced, and the congressional power is to be collected, not from tacit implication, but from the positive grant expressed in the instrument of the union. Hence, it is evident, that in the former case everything which is not reserved is given; but in the latter the reverse of the proposition prevails, and everything which is not given is reserved.” 

Wilson’s speech carries even more weight when you realize he was an ardent nationalist and yearned for a powerful central government that would effectively rule over the states. He understood this view would doom ratification and emphasized the limited nature of the general government under the proposed Constitution.

The people, speaking through representatives they elected to their state ratifying conventions, ultimately accepted this view and ratified on that basis.

Fast-forward 232 years. The government looks nothing like the one Madison and Wilson described. In fact, it looks exactly oppositive.

The federal government’s powers are numerous and indefinite. It claims authority over virtually every aspect of our lives, from dictating what kind of lightbulbs we can screw into our fixtures to how much water can flush down our toilets. Meanwhile, the states have effectively been relegated to the role of a servant, left with very few powers at all.

The American system is flipped on its head. We need to flip it back.

This article was adapted from Mike Maharrey’s book Constitution Owner’s Manual: The Real Constitution the Politicians Don’t Want You to Know About. You can get more information about the book at ConstitutionOwnersManual.com.

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4th amendment CURRENT EVENTS FISA Intelwars james madison Surveillance

All Spying All the Time

During this summer of madness in Portland, Oregon, and sadness over COVID-19, two below-the-radar events occurred implicating the insatiable appetite of the United States government to spy on everyone in America. Regular readers of this column know that the feds have been wearing away at our privacy rights using a multitude of means. Yet, these two below-the-fold events this summer have caught the feds flatfooted.

Here is the backstory.

After the calamity of Watergate, Congress investigated the nature and extent of FBI and CIA spying on Americans as ordered by President Richard Nixon. A Senate committee headed by the late Sen. Frank Church, D-Idaho, in 1975 made such startling revelations of warrantless and unlawful spying on Americans pursuant to presidential whims — going back to FDR — that it offered legislation to provide judicial oversight.

The legislation is the Foreign Intelligence Surveillance Act of 1978. It established the FISA Court, with a rotating membership of federal district court judges appointed to it by the chief justice.

FISA is profoundly unconstitutional because it authorizes the judges on the FISA Court to issue search warrants using a lesser standard of proof than what the Constitution requires. The Fourth Amendment requires proof of the likelihood of evidence of crimes in the place to be searched as a precondition for the issuance of search warrants, and it requires specification of the place to be searched or the person or thing to be seized.

When James Madison wrote the Fourth Amendment, his goal was to compel the government to focus its investigative resources on evidence of crimes, not spying on political adversaries, as the British had done to the colonists, and to establish that the natural right to be left alone by the government — privacy — is the default position.

FISA reverses all that. It presumes that the feds can obtain all the business and financial records they want about any person for any reason because they can define “business records” and “financial records” to include anything they want, such as mail from the Post Office or medical and legal records.

FISA also ignores the constitutional requirement of probable cause of crime and substitutes in an amorphous and absurd standard of probable cause of speaking to any person who has spoken to any foreign person. FISA also ignores the specificity requirement of identifying the place to be searched and the person or thing to be seized.

The FISA Court meets in secret in Washington, D.C., and even the judges on the court do not have access to its records. So, the court was hugely embarrassed a few years ago when one of its orders was leaked to the press. It was an order to Verizon directing it to furnish a year’s worth of telephone records to the National Security Agency — America’s 60,000-person strong domestic spy agency — of all 113 million Verizon customers! This was done without the NSA showing probable cause of crime and without identifying a single customer.

The unconstitutional order was granted pursuant to section 215 of FISA. That section purports to permit bulk acquisition of electronic data — print and voice — without identifying whose data is being sought and without requiring any showing of probable cause of crime. Last February, section 215 expired, and Congress made fruitless attempts to revive it.

Last week, Senate Majority leader Mitch McConnell, R-Ky., when he adjourned the Senate for the summer, addressed the issues it will take up in the fall. FISA section 215 was not among them. McConnell’s silence is baffling as he and the intelligence community have been claiming loud and long, for nearly 20 years, that without section 215, the United States is ripe for subversion and invasion.

Was the pro-spying crowd in the government exaggerating all along about its need for section 215, or will the NSA continue to spy without even a tissue of statutory authorization? My friends formerly in the NSA tell me it doesn’t care about the law or the Constitution. Its goal is to spy on all persons all the time.

A few days before the mysterious McConnell silence came a rare public warning from the NSA. These master spies were concerned that military and Department of Homeland Security personnel in the streets of Portland were unwittingly exposing themselves to being spied upon, not by the feds, but by demonstrators in the streets using the same sophisticated spying tools the government uses.

Thus, the NSA warned that the demonstrators were using stingrays — fake cell towers that send signals that lock onto mobile phones permitting the user of the tower to follow the movements of the phones — as many local police departments unlawfully do.

Stated differently, the federal government was not warning Americans about foreign spies or the depth of its own spying. It was warning government employees about the depth of sophisticated Americans spying on them. The failure to abide this warning is surely one of the reasons the feds largely departed Portland’s streets as the demonstrators knew when and where the troops would arrive.

Government spying is a way of life for tens of thousands of government personnel, even outside the NSA. Yet, all of them have taken an oath to uphold the Constitution, which guarantees the right to privacy — privacy as a natural right, as the default position, with its invasion strictly limited to collect evidence of crimes from identified persons when authorized by a judge.

We have come full circle from Madison’s America. He was determined to craft a government that could not do to Americans what the British had done to the colonists. He failed.

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2nd Amendment gun control History Intelwars james madison right to keep and bear arms Second Amendment Thomas Jefferson

Did Jefferson and Madison Believe in Restrictions on the 2nd Amendment? No.

Ever since we ran our report outlining how President Trump has ramped up enforcement of unconstitutional federal gun control for three straight years, I’ve been inundated by excuses. They range from “he has to enforce the law” to “Hillary would have been worse.”

One of the most disheartening excuses is that “The Second Amendment isn’t absolute. It has its limits.”

This sounds an awful lot like Nancy Pelosi’s view of the Constitution.

And it’s flat-out wrong. You won’t find an asterisk after “shall not be infringed.” No terms and conditions apply. The Second Amendment absolutely prohibits any federal infringement on the right to keep and bear arms.

One reader tried to back up his assertion by pointing out that even Thomas Jefferson and James Madison believed the Second Amendment had its limits. His proof? Both men were present at a University of Virginia Board of Visitors meeting that banned firearms on the university grounds.

We’ve heard this exact argument before from people on the left supporting this or that federal gun control, and it reveals a gross misunderstanding of the Second Amendment.

It is true Madison and Jefferson were present at the board meeting in October of 1824, along with James Breckenridge, John H. Cocke, George Loyall and Joseph C. Cabell. It’s also true that the board banned students from possessing firearms on the university campus. The ban was part of a long list of rules for student conduct approved by the board.

“No Student shall, within the precincts of the University, introduce, keep or use any spirituous or vinous liquors, keep or use weapons or arms of any kind, or gunpowder, keep a servant, horse or dog, appear in school with a stick, or any weapon, nor, while in school, be covered without permission of the Professor, nor use tobacco by smoking or chewing, on pain of any of the minor punishments at the discretion of the Faculty, or of the board of Censors, approved by the Faculty.” [Emphasis added]

The board also banned students from making “disturbing noises” in their rooms, from making “any festive entertainment within the precincts of the University,” and prohibited “habits of expense.”

It’s important to note that the board did not pass any laws. Violaters could not be charged with a criminal offense. They were only subject to student discipline up to and including expulsion from the university. It was, in effect, nothing more than a student code of conduct. In fact, you could argue that the board didn’t completely ban weapons from campus. It simply prohibited “students” from possessing or using them.

But given that the UVA was a state-funded public university, doesn’t the Second Amendment prohibit this infringement on a student’s right to keep and bear arms?

No.

The Second Amendment was not understood to apply to state governments. The Bill of Rights restricts federal power. The preamble to the document makes this clear. Nobody arguing for the ratification of the Bill of Rights claimed it applied to state or local governments. In fact, if they had, it would never have been ratified. It wasn’t until the Supreme Court invented the “Incorporation Doctrine” out of thin air based on a dubious reading of the 14th Amendment that anybody seriously considered the Bill of Rights as a restriction on the actions of state governments.

Up until the Incorporation Doctrine began to take hold, the actions of state and local governments were only restricted by the bill of rights in the state constitutions. It would have never occurred to Madison or Jefferson that the Second Amendment might be in play when creating a code of conduct for university students. If anything, they would have looked at the Virginia State Constitution of 1776. And the state Bill of Rights did not include any restrictions on regulating firearms.

Based on Jefferson and Madison’s participation on the UVA Board of Visitors and the student weapons ban, you could reasonably conclude that they didn’t believe the right to carry a firearm was absolute. But it does not prove that they believed the Second Amendment has limits. The Second Amendment had no bearing on the UVA’s student code of conduct. Madison and Jefferson’s actions prove nothing about the Second Amendment.

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From 9/11 to COVID-19, It’s Been a Perpetual State of Emergency

This article was originally published by John W. Whitehead at The Rutherford Institute.

“The fundamental political question is why do people obey a government. The answer is that they tend to enslave themselves, to let themselves be governed by tyrants. Freedom from servitude comes not from violent action, but from the refusal to serve. Tyrants fall when the people withdraw their support.”—Étienne De La Boétie, The Politics Of Obedience

Don’t pity this year’s crop of graduates because this COVID-19 pandemic caused them to miss out on the antics of their senior year and the pomp and circumstance of graduation.

Pity them because they have spent their entire lives in a state of emergency.

They were born in the wake of the 9/11 attacks; raised without any expectation of privacy in a technologically-driven, mass surveillance state; educated in schools that teach conformity and compliance; saddled with a debt-ridden economy on the brink of implosion; made vulnerable by the blowback from a military empire constantly waging war against shadowy enemies; policed by government agents armed to the teeth ready and able to lock down the country at a moment’s notice, and forced to march in lockstep with a government that no longer exists to serve the people but which demands they be obedient slaves or suffer the consequences.

It’s a dismal start to life, isn’t it?

Unfortunately, we who should have known better failed to maintain our freedoms or provide our young people with the tools necessary to survive, let alone succeed, in the impersonal jungle that is modern America.

We brought them into homes fractured by divorce, distracted by mindless entertainment, and obsessed with the pursuit of materialism. We institutionalized them in daycares and afterschool programs, substituting time with teachers and childcare workers for parental involvement. We turned them into test-takers instead of thinkers and automatons instead of activists.

We allowed them to languish in schools that not only look like prisons but function like prisons, as well—where conformity is the rule and freedom is the exception. We made them easy prey for our corporate overlords while instilling in them the values of a celebrity-obsessed, technology-driven culture devoid of any true spirituality. And we taught them to believe that the pursuit of their own personal happiness trumped all other virtues, including any empathy whatsoever for their fellow human beings

No, we haven’t done this generation any favors.

Given the current political climate and nationwide lockdown, things could only get worse.

For those coming of age today (and for the rest of us who are muddling along through this dystopian nightmare), here are a few bits of advice that will hopefully help as we navigate the perils ahead.

Be an individual. For all of its claims to champion the individual, American culture advocates a stark conformity which, as John F. Kennedy warned, is “the jailer of freedom, and the enemy of growth.” Worry less about fitting in with the rest of the world and instead, as Henry David Thoreau urged, become “a Columbus to whole new continents and worlds within you, opening new channels, not of trade, but of thought.”

Learn your rights. We’re losing our freedoms for one simple reason: most of us don’t know anything about our freedoms. At a minimum, anyone who has graduated from high school, let alone college, should know the Bill of Rights backward and forwards. However, the average young person, let alone citizen, has very little knowledge of their rights for the simple reason that the schools no longer teach them. So grab a copy of the Constitution and the Bill of Rights, and study them at home. And when the time comes, stand up for your rights before it’s too late.

Speak truth to power. Don’t be naive about those in positions of authority. As James Madison, who wrote our Bill of Rights, observed, “All men having power ought to be distrusted.” We must learn the lessons of history. People in power, more often than not, abuse that power. To maintain our freedoms, this will mean challenging government officials whenever they exceed the bounds of their office.

Resist all things that numb you. Don’t measure your worth by what you own or earn. Likewise, don’t become mindless consumers unaware of the world around you. Resist all things that numb you, put you to sleep, or help you “cope” with so-called reality. Those who establish the rules and laws that govern society’s actions desire compliant subjects. However, as George Orwell warned, “Until they become conscious, they will never rebel, and until after they rebelled, they cannot become conscious.” It is these conscious individuals who change the world for the better.

Don’t let technology turn you into zombies. Technology anesthetizes us to the all-too-real tragedies that surround us. Techno-gadgets are merely distractions from what’s really going on in America and around the world. As a result, we’ve begun mimicking the inhuman technology that surrounds us and have lost our humanity. We’ve become sleepwalkers. If you’re going to make a difference in the world, you’re going to have to pull the earbuds out, turn off the cell phones and spend much less time viewing screens.

Help others. We all have a calling in life. And I believe it boils down to one thing: You are here on this planet to help other people. In fact, none of us can exist very long without help from others. If we’re going to see any positive change for freedom, then we must change our view of what it means to be human and regain a sense of what it means to love and help one another. That will mean gaining the courage to stand up for the oppressed.

Refuse to remain silent in the face of evil. Throughout history, individuals or groups of individuals have risen up to challenge the injustices of their age. Nazi Germany had its Dietrich Bonhoeffer. The gulags of the Soviet Union were challenged by Aleksandr Solzhenitsyn. America had its color-coded system of racial segregation and warmongering called out for what it was, blatant discrimination and profiteering, by Martin Luther King Jr. And then there was Jesus Christ, an itinerant preacher and revolutionary activist, who not only died challenging the police state of his day—namely, the Roman Empire—but provided a blueprint for civil disobedience that would be followed by those, religious and otherwise, who came after him. What we lack today and so desperately need are those with moral courage who will risk their freedoms and lives in order to speak out against evil in its many forms.

Cultivate spirituality, reject materialism, and put people first. When the things that matter most have been subordinated to materialism, we have lost our moral compass. We must change our values to reflect something more meaningful than technology, materialism, and politics. Standing at the pulpit of the Riverside Church in New York City in April 1967, Martin Luther King Jr. urged his listeners:

[W]e as a nation must undergo a radical revolution of values. We must rapidly begin the shift from a “thing-oriented” society to a “person-oriented” society. When machines and computers, profit motive and property rights are considered more important than people, the giant triplets of racism, materialism, and militarism are incapable of being conquered.

Pitch in and do your part to make the world a better place. Don’t rely on someone else to do the heavy lifting for you. Don’t wait around for someone else to fix what ails you, your community, or nation. As Mahatma Gandhi urged: “Be the change you wish to see in the world.”

Stop waiting for political saviors to fix what is wrong with this country. Stop waiting for some political savior to swoop in and fix all that’s wrong with this country. Stop allowing yourselves to be drawn into divisive party politics. Stop thinking of yourselves as members of a particular political party, as opposed to citizens of the United States. Most of all, stop looking away from the injustices and cruelties and endless acts of tyranny that have become hallmarks of the American police state. Be vigilant and do your part to recalibrate the balance of power in favor of “we the people.”

Say no to war. Addressing the graduates at Binghampton Central High School in 1968, at a time when the country was waging war “on different fields, on different levels, and with different weapons,” Twilight Zone creator Rod Serling declared:

Too many wars are fought almost as if by rote. Too many wars are fought out of sloganry, out of battle hymns, out of aged, musty appeals to patriotism that went out with knighthood and moats. Love your country because it is eminently worthy of your affection. Respect it because it deserves your respect. Be loyal to it because it cannot survive without your loyalty. But do not accept the shedding of blood as a natural function or a prescribed way of history—even if history points this up by its repetition. That men die for causes does not necessarily sanctify that cause. And that men are maimed and torn to pieces every fifteen and twenty years does not immortalize or deify the act of war… find another means that does not come with the killing of your fellow-man.

Finally, prepare yourselves for what lies ahead. The demons of our age—some of whom disguise themselves as politicians—delight in fomenting violence, sowing distrust and prejudice, and persuading the public to support tyranny disguised as patriotism. Overcoming the evils of our age will require more than intellect and activism. It will require decency, morality, goodness, truth, and toughness. As Serling concluded in his remarks to the graduating class of 1968:

Toughness is the singular quality most required of you… we have left you a world far more botched than the one that was left to us… Part of your challenge is to seek out truth, to come up with a point of view not dictated to you by anyone, be he a congressman, even a minister… Are you tough enough to take the divisiveness of this land of ours, the fact that everything is polarized, black and white, this or that, absolutely right or absolutely wrong. This is one of the challenges. Be prepared to seek out the middle ground … that wondrous and very difficult-to-find Valhalla where man can look to both sides and see the errant truths that exist on both sides. If you must swing left or you must swing right—respect the other side. Honor the motives that come from the other side. Argue, debate, rebut—but don’t close those wondrous minds of yours to opposition. In their eyes, you’re the opposition. And ultimately … ultimately—you end divisiveness by compromise. And so long as men walk and breathe—there must be compromise…

Are you tough enough to face one of the uglier stains upon the fabric of our democracy—prejudice? It’s the basic root of most evil. It’s a part of the sickness of man. And it’s a part of man’s admission, his constant sick admission, that to exist he must find a scapegoat. To explain away his own deficiencies—he must try to find someone who he believes more deficient… Make your judgment of your fellow-man on what he says and what he believes and the way he acts. Be tough enough, please, to live with prejudice and give battle to it. It warps, it poisons, it distorts and it is self-destructive. It has fallout worse than a bomb … and worst of all it cheapens and demeans anyone who permits himself the luxury of hating.”

The only way we’ll ever achieve change in this country is for people to finally say “enough is enough” and fight for the things that truly matter.

It doesn’t matter how old you are or what your political ideology is: wake up, stand up, speak up, and make your citizenship count for something more than just voting.

Pandemic or not, don’t allow your freedoms to be curtailed and your voice to be muzzled.

It’s our civic duty to make the government hear us—and heed us—using every nonviolent means available to us: picket, protest, march, boycott, speak up, sound off and reclaim control over the narrative about what is really going on in this country.

Mind you, the government doesn’t want to hear us. It doesn’t even want us to speak. In fact, as I make clear in my book Battlefield America: The War on the American People, the government has done a diabolically good job of establishing roadblocks to prevent us from exercising our First Amendment right to speech and assembly and protest.

Still, we must persist.

So get active, get outraged, and get going: there’s work to be done.

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Dr Jekyll and Mr Hyde: Which Hamilton Are You Talking About?

We often hear people referred to as “Hamiltonians.” But that term always makes me wonder, which Hamilton do you mean?

I recently had the opportunity to speak to a class at the West Virginia University School of Law. The subject was the constitutionality of federal marijuana prohibition.

As I told the class, this is an open and shut case. It’s clearly unconstitutional. If you doubt me, ask yourself why alcohol prohibition required a constitutional amendment.

The simple fact is there is no delegated power for the feds to regulate marijuana within the borders of a state.

But over the years, federal courts have reinterpreted various clauses in the Constitution to “authorize” the federal government to do all kinds of things it was never intended to do. As Justice Clarence Thomas said in his dissent in the Raich medical marijuana case, if the federal government can regulate six plants in a woman’s back yard, the federal government has “no meaningful limits.”

And that’s where we are today  – at least according to federal judges and politicians.

As the professor of the class I spoke to put it, this is the Hamiltonian legacy.

During the class, she divided the students up between “Hamiltonians and Madisonians” for a debate. I couldn’t help but interject and ask, “Which Hamilton are you talking about?”

During the ratifying debates, Hamilton was every bit as Madisonian and Madison. He sold the Constitution as a document that gave the federal government only a few limited powers just like all the other supporters of the document. In fact, I use quite a few Hamilton quotes in my book Constitution – Owner’s Manual to explain the limited scope of various constitutional clauses.

But once the Constitution was ratified, he did a complete 180. He became an apologist for a national, centralized government with sweeping federal power – a vision of government that the ratifying conventions would have resoundingly rejected. This is precisely why Hamilton had to make limited government arguments during ratification. It was the only way the Constitution would have ever been adopted.

Consider the general welfare clause. Opponents of the Constitution worried that this phrase would open the door for the federal government to wield almost unlimited power. But in Federalist #83, Hamilton argued that their worry was misplaced because the general welfare clause was strictly limited to the enumerated powers that followed and was not a grant of general authority.

“This specification of particulars [the 18 enumerated powers of Article I, Section 8] evidently excludes all pretension to a general legislative authority, because an affirmative grant of special powers would be absurd as well as useless if a general authority was intended.”

But just seven years after the Constitution was ratified, Hamilton reversed course and argued for an expansive reading of the clause in his Report on Manufactures.

The National Legislature has express authority “To lay and Collect taxes, duties, imposts and excises, to pay the debts and provide for the Common defence and general welfare” with no other qualifications than that “all duties, imposts and excises, shall be uniform throughout the United states, that no capitation or other direct tax shall be laid unless in proportion to numbers ascertained by a census or enumeration taken on the principles prescribed in the Constitution, and that “no tax or duty shall be laid on articles exported from any state.” These three qualifications excepted, the power to raise money is plenary, and indefinite; and the objects to which it may be appropriated are no less comprehensive, than the payment of the public debts and the providing for the common defence and “general Welfare.” The terms “general Welfare” were doubtless intended to signify more than was expressed or imported in those which Preceded; otherwise numerous exigencies incident to the affairs of a Nation would have been left without a provision. The phrase is as comprehensive as any that could have been used; because it was not fit that the constitutional authority of the Union, to appropriate its revenues shou’d have been restricted within narrower limits than the “General Welfare” and because this necessarily embraces a vast variety of particulars, which are susceptible neither of specification nor of definition.

It is therefore of necessity left to the discretion of the National Legislature, to pronounce, upon the objects, which concern the general Welfare, and for which under that description, an appropriation of money is requisite and proper.

According to post-ratification Hamilton, the term “general welfare” did imply a “general authority” after the pre-ratification Hamilton emphatically rejected this reading.

Hamilton made a similar flip-flop on the necessary and proper clause. In Federalist 33, He asserted that the necessary and proper clause (along with the supremacy clause) merely stated a truism and gave no additional power to the federal government.

It may be affirmed with perfect confidence that the constitutional operation of the intended government would be precisely the same, if these clauses were entirely obliterated, as if they were repeated in every article. They are only declaratory of a truth which would have resulted by necessary and unavoidable implication from the very act of constituting a federal government, and vesting it with certain specified powers. [Emphasis added]

Hamilton went on to explain that the act of delegating a power logically implies the authority to “pass all laws NECESSARY and PROPER for the execution of that power,” but it doesn’t authorize the exercise of any additional powers. Hamilton wrote, “If there is any thing exceptionable, it must be sought for in the specific powers upon which this general declaration is predicated. The declaration itself, though it may be chargeable with tautology or redundancy, is at least perfectly harmless.” [Emphasis added]

But again, Hamiton changed his tune just a few years later and claimed the necessary and proper clause gave Congress the authority to charter a national bank, a power nowhere delegated to Congress by the Constitution.

In fact, during the Philadelphia Convention, James Madison proposed a provision “to grant charters of incorporation where the interest of the U. S. might require & the legislative provisions of individual States may be incompetent.” It was voted down 8-3.

Without an explicit constitutional authorization to charter corporations, Hamilton turned to the “perfectly harmless” necessary and proper clause to justify his bank. He rested his argument on the existence of “implied powers,” writing, “It is not denied that there are implied well as express powers, and that the former are as effectually delegated as the latter.”

Of course, this very notion contradicts his ratification-era argument that Congress was limited to its enumerated powers. He went on to argue that Congress is authorized to create a corporation because this implied power is necessary and proper.

“It is conceded that implied powers are to be considered as delegated equally with express ones. Then it follows, that as a power of erecting a corporation may as well be implied as any other thing, it may as well be employed as an instrument or mean of carrying into execution any of the specified powers, as any other instrument or mean whatever. The only question must be in this, as in every other case, whether the mean to be employed or in this instance, the corporation to be erected, has a natural relation to any of the acknowledged objects or lawful ends of the government.”

Hamilton drove his point home insisting the word necessary doesn’t literally mean “necessary,” but can simply mean needful, requisite, or even just incidental, useful, or conducive.

By Hamilton’s definition, the word necessary becomes so expansive as to include virtually anything the government wants to do. This was precisely the construction the anti-federalists objected to during the ratification debates leading Hamilton to accuse them of “exaggerated colors of misrepresentation as the pernicious engines by which their local governments were to be destroyed and their liberties exterminated.”

These two examples demonstrate how Hamilton drastically shifted from the limited federal power perspective taken by all of the supporters of the Constitution during the ratification process to a nationalist pushing for virtually unlimited federal authority. He did a classic bait-and-switch. Hamilton was a duplicitous bastard (literally a bastard.) And we should give his post-ratification pontification about the Constitution no credence.

What he said during ratification – now that matters. Because it was on that basis that the people agreed to approve the Constitution. As Thomas Jefferson said, “On every question of construction let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or intended against it, conform to the probable one in which it was passed.”

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Today in History: James Madison Vetoes “Bonus Bill” as Unconstitutional

Today in 1817, President James Madison vetoed the Bonus Bill of 1817 – a plan that called for the federal construction of various roads, bridges, and canals throughout the country. In a letter to Congress, the president explained his rationale. Out of all historical writings on constitutional interpretation, I believe it stands today as one of the most important.

Madison’s reasoning was simple – although he personally favored the idea of infrastructure construction, writing that he was “not unaware of the great importance” of such things, he denied the policy’s constitutionality on a federal level. Instead of upholding his own personal proclivities and allowing the Constitution to be undermined, he maintained that the Constitution was one of specific enumerated powers, and the document contained no expressed power for the federal government to do such a thing.

“The legislative powers vested in Congress are specified and enumerated in the eighth section of the first article of the Constitution,” he said, “and it does not appear that the power proposed to be exercised by the bill is among the enumerated powers.”

According to Madison, using the Commerce Clause, General Welfare Clause, and Necessary and Proper Clause as justification for the law “would be contrary to the established and consistent rules of interpretation, as rendering the special and careful enumeration of powers which follow the clause nugatory and improper,” adding that an alternative view “would have the effect of giving to Congress a general power of legislation instead of the defined and limited one hitherto understood to belong to them.”

Madison was well aware of this fact, as his original proposal for government in the Philadelphia Convention, a set of resolutions known as the “Virginia Plan,” called for a general legislative power rather than a limited array of enumerated powers. By the end of the convention, however, the delegations settled on specific list of powers instead of the plenary alternative.

Believing that the power to build the infrastructure the bill called for “can not be deduced from any part of it without an inadmissible latitude of construction and reliance on insufficient precedents,” Madison insisted that the federal construction infrastructure would necessitate the addition of a constitutional amendment that allowed for the authority. “I have no option but to withhold my signature from it” until such a time, he wrote.

In retrospect, this juncture demonstrates the extent to which the federal government has abandoned the Constitution, making it effectively dead. To come to the same position as Madison on the federal construction of roads in the contemporary would brand one a lunatic or an apostate. This is despite the fact that such an opinion would align exactly with the so-called “Father of the Constitution.”

Madison’s Veto Message, Mar. 3, 1817

To the House of Representatives of the United States:

Having considered the bill this day presented to me entitled “An act to set apart and pledge certain funds for internal improvements,” and which sets apart and pledges funds “for constructing roads and canals, and improving the navigation of water courses, in order to facilitate, promote, and give security to internal commerce among the several States, and to render more easy and less expensive the means and provisions for the common defense,” I am constrained by the insuperable difficulty I feel in reconciling the bill with the Constitution of the United States to return it with that objection to the House of Representatives, in which it originated.

The legislative powers vested in Congress are specified and enumerated in the eighth section of the first article of the Constitution, and it does not appear that the power proposed to be exercised by the bill is among the enumerated powers, or that it falls by any just interpretation with the power to make laws necessary and proper for carrying into execution those or other powers vested by the Constitution in the Government of the United States.

“The power to regulate commerce among the several States” can not include a power to construct roads and canals, and to improve the navigation of water courses in order to facilitate, promote, and secure such commerce without a latitude of construction departing from the ordinary import of the terms strengthened by the known inconveniences which doubtless led to the grant of this remedial power to Congress.

To refer the power in question to the clause “to provide for common defense and general welfare” would be contrary to the established and consistent rules of interpretation, as rendering the special and careful enumeration of powers which follow the clause nugatory and improper. Such a view of the Constitution would have the effect of giving to Congress a general power of legislation instead of the defined and limited one hitherto understood to belong to them, the terms “common defense and general welfare” embracing every object and act within the purview of a legislative trust. It would have the effect of subjecting both the Constitution and laws of the several States in all cases not specifically exempted to be superseded by laws of Congress, it being expressly declared “that the Constitution of the United States and laws made in pursuance thereof shall be the supreme law of the land, and the judges of every state shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding.” Such a view of the Constitution, finally, would have the effect of excluding the judicial authority of the United States from its participation in guarding the boundary between the legislative powers of the General and the State Governments, inasmuch as questions relating to the general welfare, being questions of policy and expediency, are unsusceptible of judicial cognizance and decision.

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Donald Trump and Syria: A Tough Lesson About Power

President Donald Trump taught a lot of people a tough lesson about power.

Within days of Trump announcing he was pulling troops out of northern Syria, Turkish forces launched an offensive against Kurdish fighters in the region. Trump immediately came under sharp criticism for “abandoning an important U.S. ally.” One Facebook commenter called the president’s actions “treason.”

“He has subjugated our foreign policy to the will of enemies. He has betrayed our partners at the request of our opponents in-theater. From a pragmatic perspective, you couldn’t get much more treasonous.”

But given that virtually the entire mainstream political establishment agrees that the president possesses unilateral decision-making power over the issue of war and peace, and more generally, foreign policy, how can his decisions about who to define as an enemy and who to treat as an ally qualify as treason? Within the system, as it now operates, doesn’t the president define those terms?

Simply put, you cannot charge the person empowered to make decisions about going to war with treason for not going war. It’s his prerogative. Now, if Congress declares war on Turkey and the president refuses to execute said war, come talk to me. Because whether or not the president should constitutionally have this kind of power — that’s another discussion.

And the fact is the president should not. The power to declare war and initiate offensive military operations was delegated to Congress.

In fact, the whole Syria fiasco reveals exactly why the framers of the Constitution vested war-declaring powers in Congress and not the president. They didn’t want a single individual making these decisions based on their own whim. They didn’t trust the chief executive’s discretion. James Madison made this clear in a letter to Thomas Jefferson.

The constitution supposes, what the History of all Governments demonstrates, that the Executive is the branch of power most interested in war, & most prone to it. It has accordingly with studied care, vested the question of war in the Legislature.

Madison expounded on this in even greater detail in his Letters of Helvidius.

In the general distribution of powers, we find that of declaring war expressly vested in the congress, where every other legislative power is declared to be vested; and without any other qualification than what is common to every other legislative act. The constitutional idea of this power would seem then clearly to be, that it is of a legislative and not an executive nature…

 Those who are to conduct a war cannot in the nature of things, be proper or safe judges, whether a war ought to be commenced, continued, or concluded. They are barred from the latter functions by a great principle in free government, analogous to that which separates the sword from the purse, or the power of executing from the power of enacting laws. 

Under the Constitution, as ratified, Congress was intended to “define” the enemy through declarations of war. The president was only empowered to execute the will of the legislative body with rare carefully circumscribed exceptions. The problem is Congress handed that power to the president. It passed open-ended “authorization to use force” that placed the decisions about when, where, and if to launch military strikes at the complete discretion of the president. And in recent years, the president hasn’t even bothered with AUFs. Congress let them get away with it.

Congress passed the buck.

And now all of these Congresscritters and the rest of the political establishment wants to complain about it?

Members of Congress need to either reassert their constitutional authority or shut their yaps. The president sending troops here, there and everywhere at the drop of a hat is exactly what virtually everybody asked for. They wanted a president with the power to make war whenever and wherever he pleased. Well, that’s exactly what they got. If the president gets to exercise this power it means he gets to make decisions they don’t like. This is exactly why war powers were originally vested in Congress where the issues would have to be debated and voted on. It was to prevent a president from just doing whatever he wanted.

Donald Trump taught a lot of people a tough lesson about power: when you unleash it, you don’t get to control it when the guy you don’t like has it.

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Marshall and Madison on Immigration Power

I’ve now had time to read and think about John Marshall’s comments on Congress’ power over immigration (or, strictly speaking, the comments in the 1799 report of the minority of the Virginia Legislature, attributed to Marshall), recommended by Kurt Lash in the context of previous posts on the immigration power.

To recap, the Federalist-dominated Congress enacted the Alien and Sedition Acts in 1798, which among other things authorized the removal of aliens the President identified as dangerous to the United States.  The Virginia Legislature passed a resolution objecting to the Acts as beyond Congress’ constitutional power.  In response, Henry Lee submitted “An Address of the Fifty-Eight Federal Members of the Virginia Legislature,” dissenting from the Legislature’s resolutions (thus, defending Congress’ power to pass the Alien and Sedition Acts).  The Address itself did not identify an author, but Professor Lash and others argue persuasively that the author was John Marshall.  (In this post, I will assume that is correct).  James Madison then wrote a response to the Address (and to other arguments against the resolution) which was adopted by the Legislature’s majority.

Two points stand out in my reading.  I’ll discuss the first in this post.  As Professor Lash indicates, the “Address” and Madison’s response are powerful evidence against the idea of inherent or extraconstitutional immigration powers arising merely from national sovereignty (as suggested, for example, in this post by Patrick Charles).  Marshall, defending Congress’ power to pass the Alien Acts, does not even hint at an inherent congressional power.  The Address opens with a theoretical discussion of federalism, arguing that matters of national concern should be left to the national government.  It then says, though, “it is admitted, that if in the formation of our constitution a different arrangement is made, that arrangement, however inconvenient, must be sacredly obeyed till constitutionally changed.”  (p. 17).  Marshall continues by observing that “[t]he government of the United States … possesses only delegated powers, and it is proper to enquire whether the power now under consideration [that is, the power over aliens] be delegated or not.”

The Address then argues that the power to remove dangerous aliens stems from three specific textual powers: the power to declare war and grant letters of marque and reprisal; the power to punish offenses against the law of nations; and the power to protect the states against invasion. (pp. 18-19).  It also argues (p. 17) that although the power to exclude dangerous aliens isn’t mentioned expressly in the Constitution, that alone does not foreclose it: the Tenth Amendment, it specifically says, requires powers to be delegated but omits the word “expressly” (found in the comparable clause of the Articles of Confederation), thus showing that under the Amendment powers may be delegated implicitly.

This presentation, it seems to me, devastates the claim that the founding generation understood Congress to have an inherent power over immigration that arose from national sovereignty outside the Constitution and in spite of the Tenth Amendment.  Marshall, who was defending Congress’ exercise of power over aliens, had every incentive to make that argument if it was at all plausible.  He did not.  Instead, he conceded both that the national government had only delegated powers and that the Tenth Amendment applied to the question of immigration power.  Operating wholly within the framework of delegated powers, he argued that three specific clauses contained the power at issue (that is, the power to remove dangerous aliens) — although notably his arguments did not expressly claim or implicit add up to a general congressional power over immigration.

Madison’s response to Marshall confirms the general rejection of inherent national powers.  First Madison re-asserts in uncompromising terms (p. 2) the doctrine of delegated powers:

in all contemporary discussions and comments which the Constitution underwent, it was constantly justified and recommended, on the ground, that the powers not given to the government, were withheld from it; and that, if any doubt could have existed on this subject, under the original text of the Constitution, it is removed, as far as words could remove it, by the 12th [Tenth] Amendment, now a part of the Constitution, which expressly declares, “that the powers not delegated to the United States, by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”

Madison notes his opponents’ reliance on “a late doctrine, which opens another source of federal powers, not less extensive and important, than it is new and unexpected.”  But this alternative view, which he works hard to refute, is not the idea of inherent powers — rather, it is Hamilton’s idea of Congress’ “general welfare” power found (supposedly) in Article I, Section 8 but not tied to Congress’ other enumerated powers (a point Marshall did not argue).  Madison’s response spends no time at all discussing or refuting the idea of inherent national power over immigration, apart from his unqualified restatement of the delegated powers doctrine quoted above.  Instead, in addition to refuting the “general welfare” argument, he engages the three specific clauses Marshall listed as sources of Congress’ power and rejects each of them.

Madison’s response is consistent with the natural reading of Marshall’s Address — that Marshall accepted the idea of delegated powers both generally and as applied to power over aliens, and that Marshall thought the national power over aliens, if it existed, had to come (implicitly) from a specific textual grant of power to the national government.

Of course, one can debate the value of post-ratification evidence to the Constitution’s original meaning.  My view is that the ratification-era evidence against inherent national powers is so strong that one need not look at post-ratification history at all.  But for those inclined to credit arguments in favor of inherent national power, the Marshall-Madison exchange of 1799 seems hard to explain.  Marshall was a moderate nationalist, defending the exercise of congressional power over aliens — he had every institutional and rhetorical reason to advance an inherent powers argument if he thought it would have any traction.  Yet he did not make the argument (and Madison did not think the argument worth a detailed response apart from a citation to the Tenth Amendment).  Either Marshall did not think of the argument or he thought it so unpersuasive as to be not worth mentioning (and indeed, he implicitly conceded it by arguing purely in terms of delegated powers and acknowledging the applicability of the Tenth Amendment).  In either event, it seems difficult to escape the conclusion that inherent national power over aliens was not a background assumption of the founding generation, as Marshall and Madison understood it.

Of course, that underscores the mystery of how the founding generation actually did think about the power over aliens, which I will consider next.

Marshall and Madison on Immigration Power, Part 2

I previously noted that neither Marshall nor Madison gave any credence at all to the idea that Congress might have an inherent extraconstitutional authority over aliens as a consequence of national sovereignty.  They both assumed that the structure of delegated powers indicated in the original Constitution and confirmed in the Tenth Amendment applied to power over aliens.  But since the Constitution’s text doesn’t mention power over aliens directly, where did they think it could be found?  Some thoughts:

1.  Neither Marshall nor Madison suggested that Congress had a single unified power over aliens.  As described previously, Marshall’s defense of the Alien Acts identified three textual powers that (he said) gave Congress power over supposedly dangerous aliens (the target of the Alien Acts).  Two of Marshall’s clauses (the war power and the power to punish offenses against the law of nations) clearly did not apply to aliens generally.  The third, the power to protect states against invasion, might be read that way (if one thought of unwelcome immigrants as invaders), but that doesn’t seem to have been Marshall’s meaning.  He said that the power allowed removal of dangerous aliens because “[t]o cause to depart from our territory the individuals of a nation from whom invasion was apprehended, is most obviously a measure of precaution dictated by prudence and warranted by justice.”  (p.19).  That is, in the particular situation removal was warranted in anticipation of impending nation-to-nation hostilities.  This wouldn’t amount to a general power over aliens.  Madison, in response, of course denied that Congress had even as much power over aliens as Marshall contended.  His position was essentially that Congress had power only over enemy aliens (that is, citizens of a nation with which the US was at war).

2.  Neither Marshall nor Madison discussed the naturalization clause as a possible source of Congress’ power.  That’s a bit problematic for people who think that clause is the best candidate for a general textual power over immigration.  Notably, David Currie’s account of the congressional debates over the Alien Acts similarly indicates that the naturalization clause wasn’t regarded as a likely source of Congress’ power.  (The Constitution in Congress: The Federalist Period, pp. 258-259).  I wouldn’t say that that completely settles it.  The naturalization clause still looks good: under the 1790 Naturalization Act, eligibility for naturalization turned principally on how long an alien had lived in the United States.  (The first of the 1798 Alien Acts added more requirements, but time in the US remained a central qualification).  Thus one obvious way for Congress to exercise control over naturalization was to control who could come into and remain in the US.  Further, the naturalization clause gives power to “establish a uniform Rule of Naturalization,” and any rule that turned on time spent in the country wouldn’t be entirely “uniform” if states had different rules on admitting and removing aliens.  That might be enough to make Congress’ control over aliens’ entrance and residency necessary and proper to the naturalization power.  But apparently it didn’t seem a worthwhile argument in 1798-99 — naturalization clause proponents need some explanation, or some more weighty evidence in their favor, I’d say.

3.  Marshall and Madison both thought the states had some power over aliens.  Both referred to Virginia’s 1792 statute on dangerous aliens.  Marshall pointed out (p. 21) that:

Our [i.e., Virginia’s] laws expressly authorize the executive to apprehend and secure or compel to depart this commonwealth, all suspicious persons being the subject of any foreign power or state, from whom the President of the United States shall apprehend hostile designs against the said states.

No one, Marshall said, thought the Virginia law was unconstitutional.  Madison agreed (p. 11), but distinguished the Virginia law as applying to aliens with “hostile designs” while “the act of Congress relates to aliens, being the subjects of foreign powers and states, who have neither declared war, nor commenced hostilities, nor from whom hostile designs are apprehended.”  (Madison’s distinction was actually pretty weak, as there did not appear to be a great deal of difference between the Virginia statute and the Alien Act; Madison seemed to be implying that a broader statute at the state level might be unconstitutional, but he didn’t say why, and it obviously wasn’t because he thought the power was reserved to Congress.)  Madison did elsewhere seem to affirm that the power over aliens was (or could be) a residual power of the states (p. 11, responding to the Federalist argument that if Congress couldn’t regulate aliens no one could, which would be absurd).

Further, Marshall in particular seemed to understand Article I, Section 9 (the migration clause) to imply a state power to refuse admission to aliens.  That clause provides:

The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year one thousand eight hundred and eight.

One of the arguments against the Alien Acts was that they violated the migration clause by prohibiting migration prior to 1808.  But, Marshall said, pointing to the Virginia statute, the aliens in question were not ones Virginia had “thought proper to admit,” since they were removable under state law as well as under federal law: “No law of this state authorizes the migration in to it of persons of the description comprehended in the act of the United States. … [T]he state of Virginia does not admit, but excludes from her territory all those who are contemplated by the alien law.”  (He also argued that Section 9’s general prohibition on laws against migration didn’t apply to specific laws responding to national security threats).  Marshall’s account of the migration clause assumes that states have the constitutional power to “choose to admit,” or to not admit, aliens generally (which seems consistent with the clause’s text).

4.  Finally, it’s interesting that the 1792 Virginia law specifically refers to a determination of dangerousness by the US President.  Congress’ Act also delegated almost complete discretion to the President: “[I]t shall be lawful for the President of the United States at any time during the continuance of this act, to order all such aliens as he shall judge dangerous to the peace and safety of the United States … to depart out of the territory of the United States.” There are surely hints here that the President has a special role in dealing with aliens, but neither Marshall nor Madison develops the idea in the arguments.

Of course, this exchange as a whole was about the removal of aliens rather than the initial decision to admit them; at best it’s reflective of thinking among legislators in Virginia, and in any event it took place a decade after the Constitution’s ratification.  And it’s somewhat inconclusive, in that neither author attempts a comprehensive theory of the power over aliens.  But with these qualifications, it seems to offer support for two additional conclusions (beyond the rejection of inherent power): Congress might not have a comprehensive power over aliens, and the states seemed to have some, though perhaps not unlimited, power to remove or refuse to admit aliens.  In other words, it’s consistent with the tentative thoughts Mike Rappaport outlined here.

EDITOR’S NOTE: This article was originally published as two blog posts (here and here) at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.

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Intelwars james madison Political Observations War war powers

James Madison on War as a Great Threat to Liberty

Excerpted from Political Observations, 20 April 1795

Of all the enemies to public liberty war is, perhaps, the most to be dreaded, because it comprises and develops the germ of every other. War is the parent of armies; from these proceed debts and taxes; and armies, and debts, and taxes are the known instruments for bringing the many under the domination of the few. In war, too, the discretionary power of the Executive is extended; its influence in dealing out offices, honors, and emoluments is multiplied; and all the means of seducing the minds, are added to those of subduing the force, of the people. The same malignant aspect in republicanism may be traced in the inequality of fortunes, and the opportunities of fraud, growing out of a state of war, and in the degeneracy of manners and of morals, engendered by both. No nation could preserve its freedom in the midst of continual warfare.

Those truths are well established. They are read in every page which records the progression from a less arbitrary to a more arbitrary government, or the transition from a popular government to an aristocracy or a monarchy.

It must be evident, then, that in the same degree as the friends of the propositions were jealous of armies, and debts, and prerogative, as dangerous to a republican Constitution, they must have been averse to war, as favourable to armies and debts, and prerogative.

The fact accordingly appears to be, that they were particularly averse to war. They not only considered the propositions as having no tendency to war, but preferred them, as the most likely means of obtaining our objects without war. They thought, and thought truly, that Great Britain was more vulnerable in her commerce than in her fleets and armies; that she valued our necessaries for her markets, and our markets for her superfluities, more than she feared our frigates or our militia; and that she would, consequently, be more ready to make proper concessions under the influence of the former, than of the latter motive.

Great Britain is a commercial nation. Her power, as well as her wealth, is derived from commerce. The American commerce is the most valuable branch she enjoys. It is the more valuable, not only as being of vital importance to her in some respects, but of growing importance beyond estimate in its general character. She will not easily part with such a resource. She will not rashly hazard it. She would be particularly aware of forcing a perpetuity of regulations, which not merely diminish her share; but may favour the rivalship of other nations. If anything, therefore, in the power of the United States could overcome her pride, her avidity, and her repugnancy to this country, it was justly concluded to be, not the fear of our arms, which, though invincible in defence, are little formidable in a war of offence, but the fear of suffering in the most fruitful branch of her trade, and of seeing it distributed among her rivals.

If any doubt on this subject could exist, it would vanish on a recollection of the conduct of the British ministry at the close of the war in 1783. It is a fact which has been already touched, and it is as notorious as it is instructive, that during the apprehension of finding her commerce with the United States abridged or endangered by the consequences of the revolution, Great-Britain was ready to purchase it, even at the expence of her West-Indies monopoly. It was not until after she began to perceive the weakness of the federal government, the discord in the counteracting plans of the state governments, and the interest she would be able to establish here, that she ventured on that system to which she has since inflexibly adhered. Had the present federal government, on its first establishment, done what it ought to have done, what it was instituted and expected to do, and what was actually proposed and intended it should do; had it revived and confirmed the belief in Great-Britain, that our trade and navigation would not be free to her, without an equal and reciprocal freedom to us, in her trade and navigation, we have her own authority for saying, that she would long since have met us on proper ground; because the same motives which produced the bill brought into the British parliament by Mr. Pitt, in order to prevent the evil apprehended, would have produced the same concession at least, in order to obtain a recall of the evil, after it had taken place.

The aversion to war in the friends of the propositions, may be traced through the whole proceedings and debates of the session. After the depredations in the West-Indies, which seemed to fill up the measure of British aggressions, they adhered to their original policy of pursuing redress, rather by commercial, than by hostile operations; and with this view unanimously concurred in the bill for suspending importations from British ports; a bill that was carried through the house by a vote of fifty-eight against thirty-four. The friends of the propositions appeared, indeed, never to have admitted, that Great-Britain could seriously mean to force a war with the United States, unless in the event of prostrating the French Republic; and they did not believe that such an event was to be apprehended.

Confiding in this opinion, to which Time has given its full sanction, they could not accede to those extraordinary measures, which nothing short of the most obvious and imperious necessity could plead for. They were as ready as any, to fortify our harbours, and fill our magazines and arsenals; these were safe and requisite provisions for our permanent defence. They were ready and anxious for arming and preparing our militia; that was the true republican bulwark of our security. They joined also in the addition of a regiment of artillery to the military establishment, in order to complete the defensive arrangement on our eastern frontier. These facts are on record, and are the proper answer to those shameless calumnies which have asserted, that the friends of the commercial propositions were enemies to every proposition for the national security.

But it was their opponents, not they, who continually maintained, that on a failure of negotiation, it would be more eligible to seek redress by war, than by commercial regulations; who talked of raising armies, that might threaten the neighbouring possessions of foreign powers; who contended for delegating to the executive the prerogatives of deciding whether the country was at war or not, and of levying, organizing, and calling into the field, a regular army of ten, fifteen, nay, of twenty-five thousand men.15

It is of some importance that this part of the history of the session, which has found no place in the late reviews of it, should be well understood. They who are curious to learn the particulars, must examine the debates and the votes. A full narrative would exceed the limits which are here prescribed. It must suffice to remark, that the efforts were varied and repeated until the last moment of the session, even after the departure of a number of members; forbade new propositions, much more a renewal of rejected ones; and that the powers proposed to be surrendered to the executive, were those which the constitution has most jealously appropriated to the legislature.

The reader shall judge on this subject for himself.

The constitution expressly and exclusively vests in the legislature the power of declaring a state of war: it was proposed, that the executive might, in the recess of the legislature, declare the United States to be in a state of war.

The constitution expressly and exclusively vests in the legislature the power of raising armies: it was proposed, that in the recess of the legislature, the executive might, at its pleasure, raise or not raise an army of ten, fifteen, or twenty-five thousand men.

The constitution expressly and exclusively vests in the legislature the power of creating offices: it was proposed, that the executive, in the recess of the legislature, might create offices, as well as appoint officers for an army of ten, fifteen, or twenty-five thousand men.

A delegation of such powers would have struck, not only at the fabric of our constitution, but at the foundation of all well organized and well checked governments.

The separation of the power of declaring war, from that of conducting it, is wisely contrived, to exclude the danger of its being declared for the sake of its being conducted.

The separation of the power of raising armies, from the power of commanding them, is intended to prevent the raising of armies for the sake of commanding them.

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Constitution Executive Branch executive power Intelwars james madison power Woodrow Wilson

Does the Executive Branch Have Too Much Power?

Does the president of the United States have too much power?

That question has been asked lately with respect to President Donald Trump’s use of federal funds to construct 175 miles of sporadic walls along portions of the 2,000-mile common border between Texas and Mexico. After Congress expressly declined to give him that money, Trump signed into law — rather than vetoed — the legislation that denied him the funds he sought and then spent the money anyway.

It has also been asked with respect to his imposition of sales taxes — he calls them tariffs — on nearly all goods imported into the United States from China, taxes that only Congress can constitutionally authorize. And it has been asked in connection with the presidentially ordered mistreatment of families seeking asylum in the United States by separating parents from children — in defiance of a court order.

This question of presidential power is not an academic one. Nor is it a question unique to the Trump presidency, as it has risen numerous times before Trump entered office. But the audacious manner of Trump’s employment of presidential powers has brought it to public scrutiny.

Here is the backstory.

The Constitution was written in the aftermath of the American Revolution, a war fought against a kingdom, most of whose domestic subjects articulated that the king had been chosen by God to rule over them.

The colonists in America, prodded by radicals like Sam Adams, Patrick Henry and Thomas Jefferson, profoundly rejected that idea. They argued that each individual was sovereign and a repository of natural rights. Jefferson articulated as much in the Declaration of Independence.

So, when it came time to craft a new government here, the drafters of the Constitution, led by Jefferson’s friend James Madison, made certain that there would be no king. Congress would write the laws. The president would enforce them. The judiciary would interpret them. This separation of powers is what the late Justice Antonin Scalia called the most unique and effective aspect of American government.

Why is that?

For starters, Madison feared the accumulation of too much power in any one branch of the government. With the exception of the uniqueness and violence of the Civil War, for 130 years, the branches remained within their confines. For that matter, the federal government did so as well.

Congresses and presidents accepted the Madisonian view that the federal government could only do what the Constitution affirmatively authorized them to do, and all remaining governmental tasks would be addressed by the states. This, too, was part of Madison’s genius in order to impede the concentration of too much power in the hands of too few.

All that changed when a former professor of constitutional law — who was not a lawyer — entered the White House. Woodrow Wilson believed and behaved as though Congress could legislate on any problem for which there was a national political will, except that which was expressly prohibited by the Constitution.

The Wilsonian view of government and the Madisonian view of government are polar opposites.

At the same time that Wilson was turning the Constitution on its head, he was also signing legislation that created the agencies of the administrative state. These agencies, he argued, should be filled with experts in their fields — the Food and Drug Administration, the Federal Trade Commission, to name a few — because experts would bring better government.

The agencies were authorized to write regulations that have the power of law, to enforce those regulations and to interpret them. This slippage of constitutional authority to creatures alien to the Constitution — which branch of government are they in? — masked a parallel slippage of power from Congress to the presidency.

Just as Wilson persuaded Congress that the feds needed experts to run parts of the government, he and his successors persuaded Congress that the presidency should be the repository of emergency powers.

The Constitution does not authorize any emergency powers; nevertheless, the War Powers Resolution lets the president fight any war for 90 days without congressional authorization, even though the Constitution makes clear that only Congress can declare war. Other national emergency statutes give presidents short-term near-dictatorial powers — like imposing taxes by calling them tariffs — without defining what is an emergency.

Scalia railed against all this — and the Supreme Court often struck down power transfers from Congress to the president. It did so not to preserve the institutional integrity of Congress but to uphold the principle of the separation of powers that Madison crafted as a bulwark against tyranny. The constitutional allocation of power among the branches is not for them to alter.

Its equilibrium was intended to maintain tension and even jealousy among the branches — and thereby undergird personal liberty. Madison’s articulated fear was “a gradual concentration of the several powers in the same” branch. Scalia called this gradual concentration of power in the presidency a wolf in sheep’s clothing that became a bare naked wolf.

After years of faithless Congresses legally but unconstitutionally ceding power to the presidency, we have arrived where we are today — a president who spends unappropriated funds, raises taxes, defies courts and changes immigration laws on his own. I have written before that the Republicans who rejoice in this will weep over it when a Democrat is in the White House. No president should have unconstitutional powers.

I have also written that the guarantees of the Constitution — separation of powers foremost among them — are only effective when the folks in whose hands we repose the Constitution for safekeeping are faithful to their oaths to uphold it.

When they are, our freedoms flourish. When they aren’t — power abhors a vacuum — the temptation of tyranny arises.

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