By Harold Pease, Ph. D
It is indeed pathetic that a constituent has to remind Trump, Clinton and Sanders of basic Government 101 constitutional principles of separation of power. None have established confidence with the people that they revere, understand, or will use the Constitution in problem solving. Sadly, none have given any evidence that they have read the document to which one of them, the President Elect, with right hand placed on the Bible, the other raised to the square, will promise the following: “I do solemnly swear … that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”
It is even more pathetic that the people, after having experienced two presidents, Barack Obama and George W. Bush and 15 years of little regard for the Constitution, would elect candidates demonstrating the same. But it is also pathetic that few Millennials have had to read the Constitution in any class of study at the college or university level. So let me outline the basic principles of this document to which every elected person in this country is bound.
First, we have federalism, shared or dual government, the federal government to handle primarily foreign policy and the states to handle domestic policy. Like a good marriage neither ruling over the other—two separate and equal entities. All power not listed in Article I, Section 8, or elsewhere in the document, or added by way of amendment to the Constitution thereafter, is a state power. This concept was so important that it was even more strongly defined in Amendment 10 of the Bill of Rights. “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.”
Any change in the Constitution necessitates the two governments reassembling and the affirmative vote of three-fourths of the states as per Article V. As such, most Trump, Clinton or Sanders campaign promises are outside Article I, Section 8 or are state prerogatives, thus cannot be implemented constitutionally without state permission. Duel government was the principle concept housed in both the Articles of Confederation (our first national government) and thereafter under the Constitution. None of the three federal divisions of power created later, executive, legislative or judicial, can alter this first division of power—only with the permission of the states as provided by Article V.
Second, federal power was then divided into three separate entities, the legislative to make all the federal law that was constitutional, the executive to execute that law, and the judicial to adjudicate that law when challenged, according to the Constitution. Each was restricted in its sphere.
The Legislative branch was limited to only four areas of law-making power: to tax, to pay the debts, to provide for the general welfare and to provide for the common defense. These are laid out in Article I, Section 8, Clause 1 prior to the first semi-colon, so essential to the proper interpretation of Section 8. To tax needed one qualifier that such must be “uniform throughout the United States” but in the same article, Section 7, Clause 1 the power to tax had already been given to the House of Representative to originate. To pay the debts needed no qualifiers. But no one in the Constitutional Convention trusted Congress with a free hand in deciding the two other powers, general welfare and common defense. Either could mean anything to a power grabbing federal congress. Each of these needed eight additional qualifiers so Clauses 2-9 were the law-making powers of Congress with respect to what general welfare is and Clauses 10-17 what common defense is.
The long 18-paragraph sentence (yes, sentence) ended with Congress having the power “to make all laws which shall be necessary and proper for carrying into Execution the foregoing Powers…,” those listed. Congress was never given power to make any law they thought desirable but only within four perimeters and 17 qualifiers. Nor was there power given them to create bureaucracies to legislate for them such as the EPA and BLM or a hundred other such agencies.
As the Congress was not permitted to make any law they liked, the Executive Branch, the president, was also limited in Article II, Sections 2-3 in what he could do. Already noted is his primary responsibility “to preserve, protect and defend the Constitution….” Unfortunately, Barack Obama has become a principle violator of the Constitution. As reported in a previous column, simply stated, the president has two supervisory powers over existing organizations and two shared powers with the Senate; otherwise he pardons, recommends, appoints and entertains. That is it! Notice the absence of power to make any rules and regulations on us. This is the job of Congress alone. The president can only persuade Congress to agree to his proposed changes.
The Judicial Branch, Supreme Court, was limited to only nine areas of adjudication. Two of which, those affecting public ministers and when a state is a party, they were given complete, called original, jurisdiction. In the other seven, appellate jurisdiction, “both as to Law and Fact, with such Exceptions, and under such Regulations as Congress shall make.” The Supreme Court cannot adjudicate wherever they like, only in two areas and the other seven areas only at the permission of Congress.
And, of course, there are areas forbidden to government intervention mostly listed in the Bill of Rights as for example the Second Amendment. If any of these basic principles sound strange or foreign it is because educators and the media have failed to transfer knowledge of the Constitution to our Millennials. In any case, it is doubtful that any of the presidential candidates left will use the Constitution in problem solving.