A More Perfect Union: What We the People Can Do to Reclaim Our Constitutional Liberties (11 page)

Section 3 of Article 1 sets up the rules of the Senate. By allocating each state two senators, the founders equalized the power of small and large states to a significant degree. Every state, regardless of its size, would have two senatorial representatives to protect its interests. A coalition of small states would be a powerful opponent of legislation that would benefit only large states and put small states at a disadvantage.

As the Constitution originally designed the Senate, senators were elected by state legislatures. The Seventeenth Amendment, enacted in 1913, changed that arrangement and mandated direct election of United States senators. Without question, states through their legislatures were more powerful under the old system, but corruption and manipulation were also easier. Many felt that direct election was a more democratic process than allowing state legislators to send their chosen representatives to the Senate.

Unlike representatives, who are elected every two years, senators are elected every six. But rather than having all senators up for election at the same time, the Constitution staggers senators’ elections so that one third of Senate seats are open for election every two years. Because the other two thirds of the senators remain, a sense of institutional memory and stability is provided. The frequent elections keep the senators close to the voters, but the staggering means that the business of the Senate does not have to restart every two years.

The standards for senators are a little bit higher than those for representatives: “No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.” Senators must have at least five years’ more life experience than representatives. Since they each have more power and serve longer, it makes sense that the senators are screened more rigorously. Currently the majority of
people entering the Senate have already experienced success in some other career and have a good sense of how things work in the business, social, and international arenas. Whether they possess wisdom is another matter. It is up to the voters to determine whether candidates for the Senate have both sufficient knowledge and integrity to represent them well.

The only duty assigned to the vice president of the United States by the Constitution is that of president of the Senate. The vice president learns about all the bills and laws that are being considered and is aware of all official governmental personnel appointments and nominations for congressional approval. The vice president also hears about treaties with other nations and war efforts. When there is a vote in the Senate, the vice president does not cast a vote unless there is a tie, in which case he or she casts the deciding vote.

If for some reason the vice president is not available, senatorial business can still be carried out, with the Senate’s president pro tempore (temporary president) acting in place of the vice president. As a long-standing tradition, the most senior senator in the majority party has generally been elected president pro tem.

While the House can initiate impeachment trials, only the Senate has the power to try and convict in those trials. Unless two thirds of the senators vote for conviction, the accused party is counted innocent. The founders did not want impeachment of
the president to be an easy thing, because they fully recognized that partisan politics would likely come into play and the desire for revenge would virtually bring the government to a halt every few years.

The most recent high-profile impeachment trial in the United States involved President William Jefferson Clinton, who was charged with perjury and obstruction of justice in cases involving alleged infidelity with two different women. The House voted to impeach President Clinton almost strictly along party lines, but the requirement of a two-thirds vote by the Senate was a high bar and was not met. The wisdom of the Constitution kept a politically motivated charge from being upheld.

The Constitution makes it clear that impeachment can’t result in anything more than removal from office. The Senate can punish officials only by removing them from office and denying them positions of honor in any other branch of the federal government. It would clearly be inappropriate and unconstitutional to inflict further significant punishment without an official trial by one’s peers, though the convicted government official is still subject to a subsequent trial in the same court system that tries and exonerates or punishes all American citizens.

As mandated by section 4 of Article 1, congressional elections are held on the same day across the nation. The regulations regarding those elections are left in the hands of the states, but Congress has the duty of ensuring that they are fair and honest.
To decrease intimidation, Congress mandates that secret ballots be used and that certain forms of identification be required in most states in order to vote.

In recent years some political entities have argued that requiring voter identification is racist, because people in certain ethnic groups have a difficult time obtaining the appropriate identification. However, in virtually all countries of the world, voter identification is required. And in many of those countries the population is quite uniform, so racism doesn’t seem to be the motivation there. I hope that the energy that is expended complaining that voter-identification laws aren’t fair can be harnessed for good and used to get people registered and equipped with appropriate identification well before elections occur.

Because kings of England had tried to suppress Parliament, section 4 of Article 1 requires that Congress assemble at least once per year. By prescribing at least one annual meeting, the founders guaranteed that Congress would meet to conduct business, regardless of who held power in the executive branch of government. The Constitution also gives the president the power to convene special sessions of Congress as necessary. There is no designated length of time for a congressional session, which means a single session can last for several months if necessary.

Our founders recognized that our representatives would be human beings with human failings. They knew that we would always have flawed leaders, so they set in place procedural
rules to mitigate those leaders’ failings. By setting in place plans for discipline, attendance, appropriate punishment, and adequate compensation, the framers did the best they could to protect the people’s interests.

In sections 5 and 6 of Article 1, the Constitution outlines the rules of congressional procedure. First of all, Congress has the power to deny a seat to anyone elected in a dishonest way or who they feel is not worthy to occupy a seat. Without this ability, unsavory characters would contrive all kinds of nefarious plans to capture a seat. Fortunately, a two-thirds majority vote is all that is needed to keep an undesirable person from becoming a member of Congress.

The rules of attendance are simple. A majority or quorum of members of each house is necessary to do business. In practice, smaller numbers than a quorum frequently conduct the business of Congress, as long as none of the members present objects. Congress is also given the power to compel members to attend sessions and perform the duties for which they have been elected.

Both houses are to maintain discipline, keep records of their proceedings, and coordinate their actions when in session. It is also important to be able to document the activities of congressional members as they carry out their sworn duties. Many people are familiar with the
Congressional Record
, which records the activities of Congress so that they can be studied by the public. Additionally, the Senate has the
Senate Journal
, and the House has the
House Journal
. These records can be obtained online.

In order to protect the freedom of the legislators, the Constitution declares that they may not be tried for anything
they say—barring treason, felony, or breach of peace. This kind of freedom allows them to openly express their opinions without fear of arrest or litigation. Of course, if they are guilty of egregious acts, they will not be protected.

Our legislators also are to be paid, since they must refrain from holding other government jobs while in office. This requirement ensures that senators and representatives will not be distracted by other government jobs. It further prevents them from creating highly paid jobs for themselves at the expense of the taxpayers.

While the rules for legislative procedures set out in section 7 of Article 1 are not many, they are extremely important, and when they are violated, the people suffer. As an example, the only people with the ability to introduce tax bills are members of the House of Representatives. Fortunately, they are elected every other year, which means that the people have an opportunity to monitor their taxing activities and reelect or reject them accordingly. The people would not have the same kind of control if taxation originated in the Senate, where representatives have six years between elections instead of two.

Harry Reid violated this clause when he introduced Obamacare. The Affordable Care Act was defined by the Supreme Court as a tax bill, but it appears to have originated in the Senate. If only our leaders had followed the letter of the Constitution, we might have been spared the frustrations of this ill-advised legislation.

Fortunately, the Constitution provides checks and
balances to Congress’s power of legislation in case of such abuses. For a bill to be passed by either house of Congress, a simple majority of affirmative votes is needed. A bill that is passed by both houses of Congress becomes law only after it has been reviewed and accepted by the president. This provision of our Constitution dramatically demonstrates the enormous power vested in the office of the president of the United States. With a stroke of the pen, the president can affirm or derail the efforts of hundreds of legislators who represent the will of the people. If that will is strong enough, though, Congress can override a presidential veto with a two-thirds majority in both houses.

The veto provision exists to preclude the hasty passage of unwise laws, and our founders did not anticipate that its use would be necessary often.
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But today if a president has an agenda that to him is more important than the will of the people, he is likely to use the veto pen (or at least threaten to use it) on a regular basis. This should serve as a warning to the people that they must carefully watch the actions of such a president and his supporters in Congress. They must be willing to vote out of office all such people who have agendas that are not consistent with the will of the people.

This system of checks and balances works well when the president and the legislators love their country and have its best interests at heart. It works less well when a majority of the officials are more concerned about their own power or that of their political party than they are about the general welfare of the nation. A wise and vigilant electorate will be able to discern which of their representatives are simply political hacks and which ones are truly concerned about the welfare of all of the people.

Having learned their lesson from inability of the federal government to raise funds under the Articles of Confederation, the founders wrote into the Constitution the ability for Congress to impose enough taxes to meet the financial needs of the government. If the size and scope of the government are reasonable and the taxation system is fair and unbiased, the system should work quite well. On the other hand, if the size and scope of the government and its programs are too great, taxation becomes burdensome and necessarily unfair.

In section 8 of Article 1 the founders outlined the rules for direct and indirect taxation and mandated that taxation be spread evenly across the country. A constitutional amendment, as well as multiple court cases, have adjusted the guidelines for taxation since then, but the main principles remain constant: The founders wanted to be sure the government could fund itself, to prevent the redistribution of wealth from one part of the country to another and to limit tyrannical taxation. Their foresight in recognizing these potential problems is truly a blessing for which we should be quite grateful.

Much of the Constitution is devoted to stating what the federal government
cannot
do. In section 8 of Article 1, we see instead a list of Congress’s positive powers. From borrowing money to regulating trade to establishing an army, Congress has the right to do whatever is “necessary and proper” to keep the country moving.

The founders recognized that there might arise situations when the government would need large amounts of cash beyond what was available through the United States Treasury. Accordingly, they gave Congress the power to take out loans. However, our early leaders were also concerned about leaving debt to the next generation and expended great energy to remain fiscally solvent.

The Constitution gives Congress complete control over all trade between the United States and foreign countries. Congress is in charge of making sure that we don’t export products that are badly needed in this country and that we don’t bring in from other countries things that would be harmful to this nation. Congress also protects American businesses and industries from unfair foreign competition through the use of tariffs and taxes and other legal maneuvers.

Interstate commerce also comes under congressional authority. Interstate roadways, railroads, air travel, and electronic communications are all regulated by the federal government. It doesn’t take a great deal of imagination to see that attempting to regulate these things on a state-by-state basis, with each state having a different agenda, would create an untenable situation.

For similar reasons no state is allowed to enter into a trade agreement with another nation. Domestic commerce also is controlled on the national level, which prevents the states from taxing one another in an unfair manner. This is all part of promoting domestic tranquillity.

When it comes to immigration, Congress alone has the power to decide who can become an American citizen. No foreigner has a right to American citizenship, even if he or she has managed to evade authorities and slip into the country illegally. The rules that are created by our congressional representatives regarding immigration, both legal and illegal, should conform to the will of the American people. At no point should Congress or the executive branch unilaterally decide to pass immigration policy that is opposed by the majority of American citizens who have worked hard to build a desirable nation.

Fortunately, the United States remains a dream destination for people all over the world. This means we can formulate laws that allow us to pick the cream of the crop based on our needs as a country. If we are wise, we can significantly strengthen our country by creating and enforcing immigration policies that bring talent and resources to our country. If we are unwise, our policies will bring in people who must be supported rather than those who contribute.

Many of our founders saw while living in other countries the devastating effect that bankruptcy could have on an individual and his or her family. By giving Congress the power to pass laws to protect individuals who owe money as well as those to whom it is owed, they afforded protection from extreme abuse on a fair basis. Congress should seldom bail people or institutions out of financial trouble when they have brought it upon themselves through poor business decisions, but at the same time Congress has to evaluate the
overall effect of large bankruptcies on the general welfare of the nation.

The recent bailouts of General Motors, Chrysler, AIG, and some other large financial players happened because our government decided that the bankruptcies of these entities would have such a negative impact on the entire nation that exceptions should be made. It is hard to know whether or not these were the right decisions, but I hope lessons were learned both by our government and by the private sector about risky financial dealings with other people’s money. Many of the lessons that were learned after the stock-market crash in 1929 and in the ensuing years were forgotten as time went on. We have had two opportunities to learn important lessons about risky financial behavior, and I hope that will be enough.

Congress has the power to design our money and to determine how much it is worth. This applies to both paper money and coins, which have to be uniform throughout the country. Initially our money was based on foreign coins and then precious metals, but more recently it has been based on our good name and credit. There are some countries in the world that are trying to return to a gold standard, and they could present a challenge to our system at some point in the future, particularly if we do not get our debt under control. We do have enough time to take care of this problem if we don’t play ostrich and stick our heads in the sand.

Congress also has the power to establish a single system of weights and measures, which is important to the unity of the nation. Obviously, the use of different measurements in
different parts of the country would create enormous difficulty and problems with commerce. Similarly, counterfeiting money is a federal offense because it has the potential to create havoc in our financial markets. For this reason congressional oversight of this offense is warranted.

Congress is given the authority to establish a postal system, which of course benefits the expansion and development of the nation. This includes authority to develop the various routes for mail delivery, including land, sea, and air. Congress also ensures that we have standardized postal rates and a dependable national distribution system at a reasonable price.

Congress also has power “to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” This clause is one of the things that made America into a great destination for creative people. It created an environment that was conducive to innovation and creativity, and our country was and has been richly rewarded with unimaginable talent that has brought wealth, advancement, and entertainment to millions.

Some have criticized our system, because they do not believe that individuals should be able to benefit financially from good ideas that are useful to everyone. They feel that everything should belong to everyone. This is one of the big differences between capitalism and communism. An
objective comparison of the communist system and the capitalist system will quickly demonstrate that our system has far outperformed any communist system on the planet. Fortunately, we are also blessed with the most generous society in the world, and I hope we will always encourage people to share the wealth.

The judicial branch of government includes not only the Supreme Court of the United States but also the federal court system as established by the Congress. The federal courts can be set up and changed as needed by the Congress. The courts of appeals, the district courts, the Court of Claims, and the tax court are among the courts that have been established for specific purposes by Congress. If for some reason this court system is not functioning properly, Congress has the ability to restructure or adjust it.

Congress also has the power to enforce orderly conduct outside the boundaries of the United States when our citizens are involved. Through Congress, we have the ability to protect and control all of our ships as well as our citizens even when they are outside of our nation. When our citizens commit crimes or misdemeanors in other countries, they still have protective rights that can be worked out by cooperating with the nation involved. When the United States projects an image of great strength and consistency, the likelihood of people and governments in other parts of the world interfering with our citizens decreases significantly.

Only Congress has the legal authority to declare war. It will generally do so only when the interests of our nation are at stake, and that includes the lives of our citizens. This power is given to Congress because its members represent the people of the country and are likely to engage in a study of the facts before making a hasty decision about war. Sometimes the president, who is the commander in chief, has to quickly engage our armed forces in combat roles, which can be seen as a declaration of war. This happened after the attack on our forces in Pearl Harbor in 1941 and again in 2001 after the attacks on the Pentagon and the World Trade Center on 9/11. In these cases Congress met to declare that a state of war existed.

The provision about granting letters of marque and reprisal was important in the past, when private United States citizens actually commanded ships that were prepared for battle and sometimes were able to capture enemy vessels. Obviously this is no longer the case, but Congress still has the power to establish rules for capturing property of our enemies outside of this country. There have been times in the past when we have captured land and assets of our adversaries, and there may be future times when that will again become necessary. Assets also include enemy combatants, and their treatment should be under congressional control.

Congress has a great deal of military authority when it comes to establishing and supporting the needs of our armed forces. It can compel citizens to join the armed forces and it can compel them to adhere to military laws. Congress supplies the money to support our military endeavors, but the founders mandated that no more than two years of financial support could be provided at once, so that Congress would
have continuous control over the military. If enough money were supplied to support ten years of military activities, the military might decide to ignore Congress and establish its own authority. Today the military is funded on an annual basis.

The rule of law is important to the survival and advancement of any society. Our founders recognized that civil unrest with widespread rioting, looting, and violence would undermine the authority of the government and shake the confidence of the populace. This was the reason for the formation of state militias, which have morphed into the National Guard of today. Initially these were funded by the states, but now they are largely funded by the federal government. They consist of ordinary citizens who have been trained to use military tactics and weaponry to maintain order. They can be used in the same capacity as the regular military and in fact can be called to serve as active-duty participants when necessary. Even though they are called the National Guard, each unit remains under the control of the respective state governors.

Congress has control over the District of Columbia, which is the seat of our national government. Washington, DC, has a mayor, a city council, and commissioners, but because it is the headquarters of our national government, it is truly governed by Congress. The federal government has historically purchased a great deal of property throughout the United States, such as national parks, post offices, and historical sites. This
makes our government by far the largest landowner in the country. It is responsible for the maintenance of these vast properties. There is no requirement that the government own so many national resources, and this may be an appropriate topic for Congress to take up in the future.

Finally, Congress has power “to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” This part of the Constitution has been called the “elastic clause,” because it gives Congress the ability to interpret virtually any law or rule in a way that will allow it to carry out its duties. The powers of Congress can be stretched in unimaginable ways through application of this clause, but fortunately there are 535 members of Congress, which means that there is little likelihood that the clause will be severely abused. If, however, Congress oversteps its boundaries, our system of checks and balances allows it to be reined in by the executive branch or the judicial branch.