We hear it all the time – someone says the government is doing something that is “unconstitutional.” As an example, President Obama’s recent Executive Order on immigration is said to be “Unconstitutional” by many of the Republican Senators and Representatives. When we hear such proclamations, we often hear the word “expressly” used as it relates to powers the Federal Government is supposed to be limited to performing. The argument will claim that the Federal Government is constrained to exercise only those powers “expressly” given to it and no more. We’ve heard this argument so often that we pretty much accept it as fact and wouldn’t challenge it because we know it is right – right?
Well, it isn’t right! And, it isn’t right for a very good reason which I will explain.
Allow me to back up to the Constitutional Convention. It was supposed to convene in Philadelphia on Monday, May 14, 1787, but a quorum of State representatives was not yet present so there was a delay. Finally, on Friday, May 25th, 1787 a quorum had arrived and the convention could be called into order. General George Washington was elected unanimously to serve as the President of the Convention.
As I wrote in my book, A Broken Sausage Grinder; Is Our Government Fundamentally Flawed?, General Washington was uniquely qualified to serve in this role. He had commanded the Continental Army under the provisions of the Articles of Confederation and he certainly had personal knowledge of some of the shortcomings of that document. If you do a bit of research into the time it will soon become clear that a major shortcoming was funding for the war effort. The Articles of Confederation did not give the Central Government the authority to tax so funding for the war was extremely problematic. Each of the thirteen States was supposed to contribute to the war effort according to a funding mechanism set down in the Articles, but many either didn’t contribute or were delinquent in meeting their responsibilities
The United States in Congress assembled couldn’t just come up with a funding plan of expediency because Article II of the Articles of Confederation restrained them as follows:
“ARTICLE II. Each state retains its sovereignty, freedom and independence, and every power, jurisdiction and right which is not by this Confederation expressly delegated to the United States in Congress assembled.”
There it is! There is that pesky word, “expressly” that we hear people using when it comes to what our Federal Government can and cannot do. Clearly, if the States didn’t “expressly delegate” a certain power to the United States in Congress assembled, the power belonged to each of the sovereign states. Further, if there was any attempt to change the Articles of Confederation it would require the unanimous support of all thirteen states. It wasn’t supposed to be easy to change the central governing document, but in reality, it was pretty much impossible because the State of Rhode Island did not send delegates to the Constitutional Convention.
The new United States Constitution, according to its preamble, was supposed to do a better job of establishing the central government to do those things necessary and appropriate for a central government. Notice how the preamble changes the underpinnings of the governmental authority:
“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”
If it tells us nothing else it has to tell us that the differences between the Articles of Confederation and the United States Constitution were made with malice aforethought. The United States Constitution, without any Amendments, spends most of its content on how the new Government is to be organized rather than what the new Government is supposed to do. It broadly describes the responsibilities of each of the Branches of Government, but offers little in the way of how those responsibilities are to be met.
It is my contention that the Founding Fathers knew that there were situations in the future that would challenge the limits they might impose and they were more interested in letting the Governments of the future make their own decisions using the tools established in the Constitution rather than hemming them in with limits that might be inappropriate for the future situation. In other words, I believe they knew that there were things they didn’t know, they knew that they didn’t know what they didn’t know, and they didn’t want to constrain future Governments with the things they didn’t know – they wanted to make sure the future Governments could govern.
As the new Constitution was coming together, there was great disagreement about inclusion of what was known as a Bill of Rights. Some of the delegates felt strongly that the Bill of Rights must be contained in the basic document while others were equally rigid in the belief that a Bill of Rights had no place in the basic document because no rights would be infringed until the Constitution was ratified. The majority of the delegates took up the second stance, but a series of twelve Amendments were drafted for ratification on a parallel track with the basic Constitution. Ten of the twelve were ratified initially and became known as the Bill of Rights.
The tenth Amendment to the United States Constitution offers clarification of the Founding Fathers intent on the powers of the new Federal Government. The timing of the Amendment should tell us that there was disagreement about the language contained in the original Constitution as it relates to the powers of the Federal Government. Even so, the text of the tenth Amendment still leaves lots of room for interpretation by future Governments.
“Amendment X – 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.”
We need to remember that the Founding Fathers wanted the future Governments to have the ability to Govern. And, it wasn’t long before one of these situations came along.
In 1790 there was a bill to incorporate the First National Bank of the United States as part of the effort to service the United States Treasury which had tax revenue to manage. Secretary of State Thomas Jefferson, Attorney General Edmund Randolph, and Speaker of the House James Madison had taken a constructionist view of the Constitution and argued that since there was no specific authority for the incorporation of a national bank, it would be unconstitutional for Congress to take such a step. Secretary of the Treasury Alexander Hamilton argued that since incorporation of a national bank was not specifically prohibited, it would be constitutional for Congress to create one. President Washington sided with his Secretary of the Treasury and signed the legislation into law.
This is the first example of what is known as the “implied powers” argument of the Federal Government. The power is “implied” because it is necessary for the accomplishment of a power that is specified by the Constitution. Said differently, if you have the responsibility to do something, you must have the authority to do everything necessary to meet your responsibility even if some of those actions are not specifically authorized.
It is also interesting to consider that in the absence of clear authority for a particular power at either the Federal or State level, the People still have such a power and their power can be exercised by the People’s Government whether it is Federal or State. The only clear way to finalize arguments such as these is for the Judicial Branch to be called upon – this is how the Founding Fathers intended for such disagreements to be settled.
The Sausage Grinder is broken; will you help to fix it?
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