A More Perfect Union: What We the People Can Do to Reclaim Our Constitutional Liberties (12 page)

In keeping with the spirit of limited government, the Constitution includes restrictions on Congress’s powers in section 9 of Article 1.

In an unfortunate concession to representatives of slave states, the first clause in Article 1: section 9 states that Congress could
not ban the importation of slaves, which would have been a tremendous economic detriment to Southern states. As a concession to the abolitionists, however, the clause allows for the imposition of such a ban after 1808. Though this clause is still in the Constitution, slavery was of course abolished by the Thirteenth Amendment in 1865.

Most people have heard of the right of habeas corpus, mentioned in Article 1, but relatively few actually know what it means. The term is Latin and literally means “you have the body.” Essentially it means that the government is not allowed to hold someone prisoner without bringing him or her before a judge in a timely fashion.

This is an important right, because in many other countries, the rulers can have people arrested and jailed for life without cause. Or they can issue trumped-up charges that never have to be justified. In our system the arrested person can insist that the jailer present the arrestee and the case to a judge within a reasonable amount of time. If the judge determines that the person should be held, the arrested one must be charged with a crime. If there is no criminal charge, the person must be set free. In the case of massive civil unrest or war, habeas corpus can be temporarily suspended but is reactivated immediately upon restoration of peace and calm.

“No Bill of Attainder or ex post facto Law shall be passed.” A bill of attainder is a decree by a legislature to punish someone without the benefit of a legitimate trial. This was a common practice in the Old World and our founders wanted no
part of it in our nation. Obviously, if such a thing could be done, no one would dare disagree with the government. Through political correctness, many still try to silence disagreement, but fortunately we have not reached the stage where official punishment ensues.

“Ex post facto” is a Latin term that means “after the fact.” The founders wanted to make sure that the government did not punish people for activities they had engaged in before such activities were declared illegal. Obviously, without this provision, it would be possible to pass a law to punish anyone you didn’t agree with based on any action they had carried out. As ridiculous as this sounds, it was a common practice in the Old World and happens in some dictatorial regimes even today.

“No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or enumeration herein before directed to be taken.” A capitation tax directly collects money from every citizen “per capita.” According to this part of the Constitution, any such tax would have to be the same for the people of each state. Congress has rarely levied direct taxes upon the citizens of our nation, with the federal income tax (enacted in 1913) being a notable exception.

“No Tax or Duty shall be laid on Articles exported from any State.” This clause allows manufacturers in the various states to trade with other countries without the imposition of onerous taxes by Congress. It encourages a friendly business atmosphere, which is one of the reasons why the United States of America rose to the economic pinnacle of the world in less than one hundred years after the Declaration of Independence.

“No Preference shall be given by any Regulation of
Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State be obliged to enter, clear, or pay Duties in another.” Under this clause Congress cannot play favorites among the various states. This is an important clause because some states are much bigger than others and have many times as many of representatives in the House of Representatives. Without this type of safeguard, those representatives might be tempted to craft legislation favoring their individual states. This clause also facilitates the state-to-state travel of commercial vessels.

“No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.” This means that the only monies from the U.S. Treasury that can be spent by public officials are those designated by specific laws for specific spending. Meticulous records have to be kept so that every penny can be accounted for. The records of all such spending must be available to the public.

Most of our founders were less than amused by the whole concept of royalty and were determined to obliterate any trace of such a thing from American soil. They declared that no titles of nobility should be granted by the country and that no American ruler should accept such titles from other countries. The whole concept of royalty is antithetical to the American way of life. We sometimes treat our athletes and movie stars as if they were royalty, when in fact they are no different from anyone else. We must always cling vigorously to the concept of equality under the law.

The Constitution makes it clear that the states retain all powers not specifically given to the government, but the founders wisely spelled out a few limitations. Clearly, if the states were able to do such things as make alliances with other countries, coin money, or enact laws that conflicted with federal laws, a state of anarchy would soon exist. Accordingly, in section 10 of Article 1, the Constitution declares the limits on state power. States may not arbitrarily punish people without a legal trial. They may not institute export or import taxes. No state is to maintain an army, go to war, or set up a treaty on its own.

Article 1 is by far the most extensive and detailed part of the Constitution. Recognizing that the power to write laws is the power to control lives, the founders were careful to examine every detail of legislative power. Because of their care, we are free from tyrants today, but this freedom isn’t guaranteed. It is our responsibility to responsibly consider amendments that may be required by modern developments. Even more important, it is our responsibility to see that the existing restrictions are upheld. If we are faithful to these responsibilities, our legislative branch will continue to represent the American people, and we will preserve “liberty and justice for all.”

ARTICLE 2, THE EXECUTIVE BRANCH

“A king detests wrongdoing, for his rule is built on justice.”

Proverbs 16:12

E
arly in 2012 President Obama appointed a new director of the Consumer Financial Protection Bureau without congressional consent. He felt that his appointments were being politicized, and he was growing increasingly impatient with what he perceived as unfair treatment by the legislative branch of government, so he flouted constitutional standards. A president can get away with this kind of cowboylike activity if Congress backs down and simply complains without taking action. My hope is that citizens will learn what the Constitution says about the executive branch and will elect congresspeople who will uphold its standards.

The president shouldn’t need others to force him to uphold the Constitution. When presidents take office, they swear the oath written in section 1 of Article 2 of the Constitution: “I do solemnly swear (or affirm) 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.”

When a new president is inaugurated, the new leader is stepping into the most powerful position in the United States of America. Recognizing this, the founders took the role seriously and devoted Article 2 to defining the powers and procedures of the position. The article sets in place definite limits on executive authority, and the founders made it clear that their intent was to err on the side of lessening executive power.

Congress limits the president’s power to executing the laws passed by Congress. The president may not legislate and is given power only to make sure that the will of the people, as expressed through Congress, is carried out. Anything else is overreach.

The founders had personally experienced the horrors of living under tyrannical rulers who were interested only in their own personal gain and felt no compassion for the people. They were especially concerned about potential overreaches by the executive branch of government, because it was led by a single individual, the president, who could become intoxicated with power and establish a de facto monarchy. The executive branch also controls the military, increasing the danger if any president were to become a dictator.

To prevent executive abuse, the framers enabled Congress and the courts to rein in executive overreach. Congress can defund virtually any governmental department or program and every presidential perk. The courts can declare an executive action illegal. By having three separate but equal branches of government, each of which would be interested in maintaining its power and influence, the founders believed that a representative government could be achieved on a long-term basis.

These days Congress is divided. This provides a distinct advantage for the executive branch if it truly wants to engage in power grabbing. Congress must once again concentrate on becoming an effective body, and not just to prevent presidential power grabs. It is my hope that readers of this chapter will recapture the founders’ original vision for the presidency and will elect presidents who fit that vision and congresspeople who will uphold all of the details of the second article of the Constitution.

Article 2 begins by defining the executive branch, which today includes the office of the president, the office of the vice president, all of the cabinet departments, and the president’s administrative staff. The president has a staff of thousands to help with his numerous executive duties. No one person can effectively deal with the thousands of issues that arise on a daily basis, so the president is wise to depend on capable individuals with expertise in a variety of different areas. Failure to do so will almost certainly result in a failed presidency.

The office of the vice president is less well defined, and the vice president in many ways is a utility player, filling in where needed. A vice president with particular expertise in a problem area can be a tremendous asset to the president and to the country. Aside from that, he or she must be fully competent to assume the duties of the president in case of the president’s death or incapacitation. And, of course, the vice president acts as the president of the Senate.

Though most Americans are more aware of presidential elections than of any other election, few really understand how the electoral process works, assuming that the voters elect the president directly. But that’s not how the founders set things up. In fact, between the modified electoral college and party politics, our presidential elections bear little resemblance to the system described in Article 2.

Rather than having the general public elect the president, the writers of our Constitution wanted an engaged group of people who were knowledgeable about political events to choose executive officials. Accordingly, section 1 of Article 2 states that the state legislatures should choose “electors.” The number of electors designated for each state was to be determined by the combined number of senators and representatives that each state had in Congress. There was no mechanism for all of these electors to meet together, so each state’s electors were to vote in the state’s capital. Each state’s electoral votes were to be reported to the president of the U.S. Senate, who would tally the votes and present the results publicly.

In the original plan the Electoral College votes were to be counted in Congress. The person receiving the most votes would become president, and the one receiving the second-most votes would become vice president. This resulted in bizarre teams—imagine if Al Gore had become George W. Bush’s vice president because he came in second. Having a president and vice president of different political persuasions meant the executive branch was far from united. Even worse, the setup incentivized assassination, because the death of a president could benefit the other party. After one of these
pairings (Democratic-Republican Thomas Jefferson serving under Federalist John Adams), Congress decided a change was needed. In 1804 the Twelfth Amendment changed the electoral process to solve this problem. The Twelfth Amendment requires electors to indicate both the person they want for president and the person they want for vice president.

The system of electors is still in place. This means that when you vote for president, you are really voting for an elector who you think will vote for the candidate you prefer. In reality, electors do not have to vote for the candidate they are associated with, but it is rare for an elector to renege on the expectation.

If the American populace becomes more involved with the political process and the number of voters increases, it might be worthwhile to move to a popular-vote model. In the meantime, we must work with the system we have, electoral college and all.

We also have to reckon with the reality of political parties, even though the two-party system was not in existence when the Constitution was written. Today the candidates for president and vice president are chosen by the parties. This began with the first national political party convention in 1827. At first, these conventions highlighted many candidates and the politics of its particular party. Party leaders from throughout the country held national conventions to nominate a presidential and vice presidential candidate. Since the 1970s, now before the conventions the party’s candidates compete against one another for votes and are assigned delegates based on
how well they do in state primary elections. Those delegates attend party conventions and vote for their candidates. The first candidate to reach the requisite number of delegate votes generally wins the nomination as the party’s candidate to run for president. That individual then has the opportunity to choose as his or her running mate any eligible citizen of the United States.

Another important function of the political conventions is the establishment of the party platform. Each party formulates a statement of its beliefs and values and goals. It is important for voters to read these platforms and be familiar with them. Many people would be surprised if they actually familiarized themselves with the platform of the party that traditionally garners their support.

Under the party system, politics becomes at least as important as substance. The unity of our nation should trump any political considerations, but politicians often end up being loyal to their party at the expense of the nation. Politicians become so involved in making the other party look bad that they are unable to recognize the destructive tendencies of their partisan philosophical bickering. When issues like demanding transparent inspections of Iranian nuclear facilities become political issues, we are in trouble. Our leaders should be able to unite around existential threats instead of trying to score a point off the opposing party.

Because of the toxicity of the two-party system, many outstanding citizens will not even consider entering the political arena. The environment has changed so dramatically from the days of the founders that ordinary citizens are out of place in Washington, and professional politicians rule the day. This is not the vision of Article 2, and it’s time “we the
people” rise above the political infighting and choose sensible executives based on their qualifications, not the letters after their names.