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A year after declaring independence from Britain in 1776, representatives of the thirteen states met to draft a constitution. They came up with the Articles of
Confederation, but some felt this document lacked the necessary provisions for an effective government. Ten years later, delegates met again to make revisions. They drafted an entirely new constitution instead. Federal power was split between legislative, executive and judicial branches of government. A system of checks and balances was incorporated. In the first of “The Constitution Today” series, we focus on the separation of powers.
- Edward Whelan president of the Ethics and Public Policy Center, a contributor to National Review Online Bench Memos blog, a lawyer and former law clerk to Supreme Court Justice Antonin Scalia.
- Amanda Frost professor of law at American University Washington College of Law
- Michael Quinn president and executive director of The Montpelier Foundation.
The U.S. Constitution: Full Text
MS. DIANE REHMThanks for joining us, I'm Diane Rehm. Every U.S. president, congressman, senator and judge takes an oath to preserve, protect and defend the Constitution, but this defining document is often misquoted and indeed, misunderstood. For example, it contains no clause called the separation of powers, but its first three articles clearly lay out a system of government divided into three branches.
MS. DIANE REHMAnd that's where we begin our Constitution Today series. Joining me in the studio are Edward Whelan of the Ethics and Public Policy Center, Amanda Frost of American University's Washington College of Law and Michael Quinn of James Madison's Montpelier. We do invite your questions. In fact, we hope you will call with your questions, your comments. Join us on 800-433-8850, send us your e-mail to firstname.lastname@example.org. You can join us on Facebook or send us a tweet. And good morning to all of you, it's good to have you here.
MR. EDWARD WHELANGood morning.
MS. AMANDA FROSTGood morning, Diane.
MR. MICHAEL QUINNGood morning.
REHMThank you for joining us in this first of our series. Michael Quinn, let me start with you. That separation of powers is so embedded in our thinking about the Constitution, but those words are not there. Yet the first three articles of the Constitution clearly lay it out. Was it always a very strong implication?
QUINNYes it was. Really the idea of separating the different powers of government was prevalent in enlightenment thinking of the time and it was also to a certain extent especially important to Madison because he was really looking at state attempts at self-governance that had launched with the Revolution and what he saw again and again was an imbalance between the three branches of government and in his view, it was really resulting in the most severe invasion of private rights. So he came to the constitutional convention with the idea of separation of powers as just sort of a bedrock of principle to frame the constitution on.
REHMIt's interesting to me that ten years prior, the Articles of Confederation had not been deemed satisfactory or sufficiently satisfactory. Amanda Frost, why not?
FROSTI think the concern was that the Articles of Confederation didn't create a strong enough central government to govern this fairly loose confederation of states at the time and so something needed to be done to both empower the federal government and yet also to be sure that it did not run amok, that it did not get out of control. And the way that Madison and the other framers decided that could be done would be to separate the functions of the government and to ensure that there were checks and balances on the branches.
REHMAnd very interesting to me, Ed Whalen, that the Legislative Branch is the first article. Why?
WHELANWell, I think there's a basic logic to the way the articles are spelled out. The legislature makes the laws, the Executive Branch then executes them. In Article Three, you have the courts which then can decide disputes, so I think that temporal logic explains this. Of course, it was recognized that the legislature would also be the most powerful branch and Madison and others took measures to make sure it wasn't too powerful and to try to divide up the power within the Legislative Branch.
REHMAnd yet you have the Second Article being that naming the president of the United States, Amanda?
FROSTYes. And I think what's interesting is to see the changes over the years since the Constitution was written and I think the framers didn't quite envision this...
FROSTThe -- that the president is -- the imperial presidency. The president has become a much stronger actor than I think was originally perhaps envisioned and we think now, you know, the president's Article Two, but it -- the role the president plays in our government looks more like the (word?)...
QUINNWell, and I agree with that. The great fear at the time of the Constitution is that the president would be controlled by Congress and in fact, that's the reason they created such a convoluted means of electing the president because in the state governments prior to that time, it was quite common for the executive to be elected by the legislature. Well, in their words, that made the executive a creature of the legislature and it led to -- the word they would have used was tyranny, so what they were looking for again and again was a means to make the president independent of the legislature.
REHMSo why, Ed Whelan, was a bicameral legislature so important then to even ratification of the Constitution?
WHELANWell, there are a number of reasons for that. One is, of course, the compromise between the large states and the small states to have one body, the Senate where there was equal suffrage among the states and to have the larger body, the House, apportioned according to population, but there's also a recognition that there was value to having different terms and different modes of selection for the two branches.
WHELANRemember that initially, senators were selected by state legislatures. It wasn't until the 17th Amendment that you had the direct election by the people of senators and it's also, of course, the case that with a six year terms for senators at every election, you'd be electing only one-third of them generally, so that was thought to help prevent some sort of temporary sentiment among the people from early transforming the entire congress.
QUINNAnd again, it gets back to the idea of a concern that power will be concentrated in the legislature, so the Senate was kind of viewed as a check within the Legislative Branch. The longer terms, well, the idea is that would give them some -- a buffer between the day to day passions of their constituents.
REHMAnd what about the different responsibilities, Amanda?
FROSTYes. I mean, the Senate is tasked in the Constitution with, for example, confirming the president's nominees to the courts and other high offices. The Senate and the House play different roles in the impeachment process and I do think that these distinct functions are part of the framers' conception of how these two branches would work together and also check each other -- rather these two components of the same branch, the Legislative Branch.
REHMAnd what about the initiation of financial legislation?
QUINNYes. The House of representatives takes the lead role there.
REHMAnd why? Why did the framers decide that?
QUINNWell, what they were really trying to respond to is the fact that the states -- that the Senate started morphing into something that was really representing the states rather than people and they felt that any bills that taxed people should originate from the House that was closest to the people and that's the House of Representatives, not the Senate.
REHMSo it made sense in their minds?
QUINNIt made sense, it also was a compromise between different views of how to structure the political system. You know, at heart, what they realized is that they are governing people and that government is by people and people are fallible. And what they were striving to do was come up with a system that really would allow the American people to live together in peace, to solve problems and to define their future.
REHMLet's talk briefly about the third component, the judiciary, Ed Whelan.
WHELANWell, the framers' viewed the judiciary as likely to be the least dangerous branch, the least powerful and I think that a good argument that events in recent decades have shown that the court can exercise a great deal of power when it chooses to. But the court, of course, had -- the Supreme Court had its members selected by the president, confirmed by the Senate, so you see there the roles of the other branches.
WHELANAt the same time, there's a protection for federal judges of lifetime tenure, tenure during good behavior. And also the protection that their salaries not be reduced, so I think that illustrates some of the protections that were intended for the third branch as well as the checks on that branch.
REHMAnd I gather it's because those are lifetime appointments that that phrase, good behavior, was added there?
WHELANWell, that's the phrase that really defines the lifetime tenure. It's understood that you can maintain that post for the rest of your life so long as you don't engage in bad behavior and what exactly bad behavior is disputed.
FROSTWell, and I was gonna say I think one thing that's interesting, if you look at the history of the courts, you see that in the beginning, in the early days, there were threats of impeachment quite regularly against the justices and the judges of the federal court system and over time, we've developed a new norm, which is that judges are really only impeached for things like taking bribes. If they issue a decision that is disliked widely by the American people, Citizen's United is an unpopular decision, for example, it is criticized, but there is no threat of impeachment.
QUINNNo, that's correct and I think that they understood that the justice would play a role that really, the role that the Supreme Court takes in today's jurisprudence and understanding the constitution is significantly expanded from what they envisioned.
REHMWhat did they envision with the courts, Michael?
QUINNWell, what they were really looking for is to -- again just to separate these powers of government. Madison wrote that the true definition of tyranny is all these powers of government collected in one hand. So again and again, when Madison wrote about the principles of government, he talked about there being an element in every person that you should not trust. At the same time, he recognized that there's greatness in every individual, too, so what he was striving for was to create this culture, the government of culture that would bring out the best.
REHMMichael Quinn, he's president and executive director of James Madison's Montpelier, Amanda Frost is professor of law at American University's Law School, Edward Whelan of the Ethics and Public Policy Center.
REHMAnd welcome back to the first in our series on the Constitution. Today we have with us three scholars, Edward Whelan, he's president of the Ethics and Public Policy Center, Amanda Frost is professor of law at American University's Washington College of Law and Michael Quinn, he's president and the executive director of James Madison's Montpelier. Let's talk about the reasoning behind the qualifications for a person -- and it doesn't specify sex in the Constitution -- the reasoning and the qualifications for a person to become president, Michael Quinn.
QUINNWell, the Constitution lays out very few requirements. Either a natural born citizen or a citizen of the United States at the time the Constitution was adopted.
REHMWhat about of a certain age?
QUINNAnd of a certain age, 35 years or older.
REHMAnd that's it.
QUINNAnd that is it.
REHMWhat do you think of that? Did the founders want to leave that as wide open as possible, Ed?
WHELANWell, I think so. There's also a residency requirement that's, I think, fairly minor, but look, I think what the framers understood is that if a system of representative government was to succeed, you need to have a basic trust in the virtue and judgment of the people. So you're not gonna try to micromanage everything in advance. The genius of the Constitution is to leave the vast bulk of issues to the people to work out through their legislatures at the state and national level and I think the very few requirements for eligibility to become president reflect that.
REHMAmanda, how have the powers of the executive evolved?
FROSTIn a number of ways. First, I just think it's worth mentioning that the framers didn't envision the party system that we have and that -- or they envisioned it, but I think hoped it wouldn't happen. And now the president, as head of his party, can exercise much greater authority when Congress shares the same party with the president. And that's, I think, something that either wasn't envisioned or, as I said, the framers hoped wouldn't come to pass.
FROSTWays in which the president's power has expanded, I think one area in particular is basically the law of war or making war. Although the president is the commander in chief in the Constitution, Congress is supposed to play a primary role. Congress has the power to declare war and to raise and support Armies and the Navy. And yet, the president has taken the lead in so many of our conflicts over the last at least 100 years.
REHMNow, go back to what you said at the start, that is that the framers hoped that parties would not evolve. What was the thinking there? What was -- what do we know about what they thought of parties?
FROSTYou know, I think Mike actually would probably have some thoughts on this, but I believe the concern was that these factions would tear apart the country. This was George Washington's -- one of his notable addresses to the American people, was don't do this, don't tear apart the fabric of our country by dividing and fighting each other in this way. And yet within a decade or two of the Constitution's -- framing of the Constitution, we have two-party system that remains in place today.
QUINNYeah, the founders recognized that faction was part and parcel of mankind. In fact, Madison wrote that faction is sewn in the nature of man. Although we may be born equal, as we grow up, we have different abilities, different accomplishments and that leads to different interests. They were trying to control faction. In fact, that's one of the main reasons that we have separation of powers. But the other reason that Madison was looking at is he used the term extend the republic. And his thinking was is if you've got a really big country, the people of specific interests will be so far apart, it'll be hard for them to discover each other. Now, that's gone in the day of internet. And secondly, he thought that the distance between them and their representatives in Congress would tend to insulate those representatives from the passion of those political parties. That's gone to date as well.
REHMSo surely the echoes of those concerns are with us today, Ed Whelan.
WHELANWell, I think that parties inevitably have a downside as well as an upside. I think it's striking, though, that among the framers' genius, this is one area that they really didn't anticipate. And you look at the way the selection for president was originally structured, with the runner up becoming vice-president, to us it reflects this -- it's a very surprising feature and I think shows that the system didn't develop as they had hoped.
REHMWhat was the initial fear? Was it based on what they saw of the English system, Michael?
QUINNI think in Madison's case, in particular, it was more what he saw in the state governments because they were also little experiments in democracy beginning with the Declaration of Independence. They all immediately started writing constitutions. And Madison analyzed them very carefully and really identified the flaws of each and took those insights to the convention. So he really drew more on the experience in the state legislatures in deciding that factions were not a good thing.
REHMWe have many callers and I do want to get to them as quickly as possible. But first, what about the right of executive privilege? Surely that's not in the Constitution. How did that come about, Ed?
WHELANWell, you're very right. There's no specific mention of executive privilege in the Constitution, but that's something that presidents going back to George Washington insisted on and said it was clearly implicit in the structure of government.
REHMHow was that first introduced?
WHELANWell, I'm going to have to defer to Mike's expertise here, but I believe there was a demand for the documents related to treaty negotiations during Washington's first term. Washington, as I recall, they declined to provide those.
QUINNIt was the Jay Treaty and there's outrage because they -- so many people thought John Jay had kind of given away the store in his negotiations with Britain and so one response from Congress was to demand to see all the private communications and directions given to Jay and Washington refused. There was another incident where the president has the -- appoints his cabinet officers with the consent of the Senate. Well, then soon came about the situation where Washington wanted to dismiss one and there was a great deal of discussion of whether he could do that unilaterally or whether dismissal required approval of the Senate. And again, Washington asserted the presidential prerogative there.
REHMAnd then you have the issue of national security being used as a way to expand the authority of the president, Amanda.
FROSTYes. I think the fact that we have a unitary executive, that is, we have a single president at the head of the government, has meant that the president is really best positioned to carry on and is given some of these functions in the Constitution to carry on our foreign relations, our national security. And there is some needed secrecy there, yet the president is supposed to consult and work with Congress. And of course, those two things are -- create complex. There's some incompatibility with a need for secrecy and for swift action and the need to work with a multi-member Legislative Branch.
REHMAnd of course, with the modern media, the need for secrecy doesn't function terribly well. Did the founders envision how great the impact of media would be on what government was going to evolve into, Michael?
QUINNWell, they were very appreciative of the positive power of the media. I mean, the freedom of the press they viewed is protected in the First Amendment and they viewed that as an important check on government. I don't think they -- of course they had no inkling of what technology would -- how it would transform our ability to communicate, so they had no ability to foresee the kind of circumstances that we're dealing with today.
REHMAnd finally, before we go to the phones, how well does each of you believe checks and balances envisioned by the founders work today? Ed Whelan.
WHELANWell, if I could offer a couple criticisms, I think that the difficulty in amending the Constitution is a real problem. It's just -- you really it's super majority -- tremendous super majority to do that. I think that stifles popular reactions to, for example, Supreme Court opinions that people believe are mistaken. And I also believe that there are insufficient checks on the judiciary, that Hamilton's prediction that the Supreme Court would be the least dangerous branch and wouldn't overstep its bounds has not proven to be accurate.
FROSTYou know, I think what's sort of remarkable is how this incredibly short document has served us so well. I agree with some of Ed's criticisms. I think the amendment process is essentially broken. It's extremely difficult to amend the Constitution to the point where I think judges, and in my view, rightly read the Constitution in a way that allows it to be evolving and updated to deal with modern society that looks very little like what the framers thought, while remaining true to constitutional principles. But I think if we had a constitution that was a little more easy to amend, we might've saved ourselves some trouble.
QUINNI think without question, the principle of checks and balance has withstood the test of time. It is the right way to structure a government. I think, though, that if you look at what has happened to our government, with -- there have been so many changes. The concept of representation, maybe it is in areas like that where we've kind of lost...
QUINNGerrymandering. You know, the founders thought was that constituents pick their politicians, not politicians picking their constituents. There are issues like that where their concept of separation of powers may be starting to erode.
REHMAnd what about the relationship between the Executive and the Legislative? How will or not has that evolved, Amanda?
FROSTWell, we've really had to come up with another branch of government to deal with the problem. And we have yet to speak of this, but it's sometimes called the fourth branch and that is the Administrative State. All the agencies that govern so much of our lives, like the Food and Drug Administration, for example. And we have this Administrative State now where the legislative and executive branches share control over making a regulation and enforcement of regulation. And while I think it's worked fairly well and it's a necessity for our modern society, it was not envisioned by the framers and it's not in the Constitution.
WHELANI agree very much with Amanda. I think the Administrative State is also part of what is described as cause of the president's vastly increased power over the centuries. And it raises very difficult questions about the respective roles of Congress and the executive and, you know, is the -- are agencies exercising law making power that should have to be exercised by Congress?
QUINNYou know, if anything, I'm concerned that the balance of power between the branches is a little out of whack. You know, the framers really were thinking of not a static form of government, but powers being balanced and I think at times it seems as if, if there's a lack of power in one branch, the other two sort of move in and in some way I feel like Congress is the weakest link in that balance of power now.
REHMMichael Quinn, he's president and executive direction of James Madison's Montpelier and you're listening to "The Diane Rehm Show." And we're going to open the phones now, 800-433-8850. First to Dallas, Texas. Good morning, Will, you're on the air.
WILLHi, Diane. Thank you.
WILLMy question for the panel is whether or not they think the Electoral College is still a valid format.
REHMFor electing the president.
QUINNWell, it certainly is not operating the way originally intended and probably never really did. The original idea was that you're creating kind of a refined democracy, people who represent American people and they make the choice and that would hopefully end up selecting people with the greatest character, the most public spirited. And then the reason the Electoral College was the one to do it is that they would immediately go out of existence so they would not exert continuing control over the president.
REHMSo how many electors were there in that first presidential election?
QUINNI think it was 67.
QUINNYeah, and George Washington was unanimously elected with 67 votes.
REHMAnd the question of whether that still operates in a good way for this country today.
WHELANWell, I'd emphasize that the composition of the Electoral College, at least the relative proportion of the states, is tied directly to the continued existence of the Senate. So I think that you can't look at the existence of the Electoral College apart from the question of, do we think that the Senate ought to continue to exist as it does. Of course, the Constitution itself provides that you can't amend the equal separates in the Senate. I think that the Senate does provide a nice counterbalance to the House and I see no problems with the Electoral College.
REHMAll right. Let's go to Chaz in St. Louis, Mo. Good morning, you're on the air.
CHAZGood morning. I love your show, but I have to say I'm really happy to hear you're gonna do this series on the Constitution. I think it's something that's not been getting nearly enough coverage. I'd like to ask your panel to comment on what they think the state of the Constitution is right now. I feel that it's been very much under siege for awhile now with the Patriot Act, Military Commission's Act, Presidential Signing Statement, refusal of anyone to want to prosecute President Bush or Chaney for illegal wire tapping. It seems like our rights are under assault and no one, even the conservatives who say they want to stand up for the Constitution, it seems like they don't want to when it comes to individual rights.
REHMAll right. Amanda.
FROSTYou know, I think one response to that is that the Constitution is a terrifically important document that sets the structures of our government, but in the end, the values in the Constitution, in order for those to be upheld, we have to rely on ourselves and we have to elect people to office who share our vision of the values and the constitutional values that we hold dear and so I think in the end, if we're unhappy with the way elected decision makers or even judges are deciding cases, the answer is to vote for the right people and to create a culture that respects those values. Just to remind you, judges are selected by the people we vote into office. So even though they're not directly accountable to us, even judges are political actors in that way.
QUINNYeah, I think if you really look at the history, I think our Constitution's pretty much been under attack almost from the beginning. And I think that's was probably something anticipated because the founders recognizes that you're really setting up the different branches of government to contend with each other and that is, in fact, how you keep each from becoming a tyrant.
WHELANWell, there's always a tendency to believe that the Constitution reflects one's own policy preferences, but I agree with Amanda. I think the Constitution recognizes that it's up to us to get the government we deserve.
REHMEd Whelan, he's president of the Ethics and Public Policy Center. We're going to take just a short break. More of your questions, your comments about the Constitution and the separation of powers when we come back.
REHMAnd here's the first question posted on our website saying -- it's from Bob, who's in Bowling Green, Ohio, he says, "I hope the discussion will consider that at the time the Constitution was drafted and adopted, corporations did not exercise the immense power they have in today's world." Ed Whelan.
WHELANWell, I think that's true and lots of other things have changed since that time. Again, the genius of the framers was to set up a framework in which the people could form policies and revise them over time to address the challenges, so I think that the fact that things have changed in so many ways doesn't undermine the existing system.
FROSTBut just to sort of bring us to a present day issue, there's been a lot of concern and talk about government regulation and government interference with our day to day lives, but if you look at our history, there's been -- before government involvement, we had domination of society of labor of the marketplace by unregulated corporate entities and I think that there has been a real concern about the need to protect the people against those forces as well, and indeed, as a result of the legislation in the 20th century, the government has played a role in limiting corporate power. We may be seeing the pendulum swing back today, but...
REHMBut now, Michael, going back to the founders, weren't there a lot of vested interest at the table? These guys were not all pure thinkers thinking only about the best interest of the people. You had the landholders, you had the slaveholders...
REHM...you had the farmers, you had the men in business...
QUINNThe merchants, yeah.
REHM...every -- yeah, everybody looking at it from his point of view.
QUINNOh, absolutely. You know, they did not have corporations, I mean...
QUINN...I think the corporate entity really was -- really didn't exist at the time, but you're absolutely right about the competing interest and they were dealing with those, those competing interests even at the Constitutional Convention. Small states versus large was the most prevalent, but you also had the whole issue of slavery which was a North/South issue even then and given the level of intensity over those issues, it's really remarkable that they came together and all put their signatures on this document presenting it to the American people as their wisdom.
REHMAll right. To Orlando, Fla. Good morning, Adam, you're on the air. Adam?
ADAMThank you very much.
ADAMJudicial review is not something that was written into the Constitution. Judicial review of case of laws or constitutionality, it came about as a result of one Supreme Court holding early in the Constitution's life. Was this something that derailed the framers intent? Was it a power grab by the Judicial Branch?
FROSTWell, there had been some historical basis for Judicial review, but I agree with you that it was not clearly laid out in the Constitution what role the courts would play in reviewing and striking down legislation they thought was unconstitutional and as your comment suggests, Chief Justice Marshall established that the Supreme Court would play that role in a case called Marbury v. Madison, creating a much more powerful court than it had been up until that point and it's not clear whether the framers envisioned that or not. But Marshall read the Constitution as requiring the court to police the constitutional boundaries and that's been a very important role the courts have played.
WHELANWell, Alexander Hamilton Federalist 78 clearly understood and spelled out to -- that the courts would the power of Judicial review, that has the power to determine whether laws violate the Federal Constitution, so while I agree with the caller that that power is not expressed in the Constitution, I think it is fairly implied for the reasons that Hamilton explains.
REHMAll right. To -- let's go to Louise who's here in Washington, D.C. Good morning to you.
LOUISEGood morning to you. Great show, great series.
LOUISEMy question has to do with the Preamble to the Constitution. You're doing a great job, your speakers are doing a great job of talking about the thinking behind the articles, but if you think of the Preamble as kind of the mission statement for the country or the mission statement for the Constitution, then the articles are really the operationalizing of that. I wonder if anyone would like to speak to that.
REHMAnd let's have Michael read that Preamble.
QUINNI -- Diane, I think that's exactly the way to think of it because the Preamble is telling you that government is a good thing, it's a necessary thing and it's the way to create a nation. Here are the words, "We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for 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. Those are the purposes, justice, peace, welfare, union and liberty.
REHMBeautiful, beautiful words. Thanks for calling, Louise. To Jonesboro, Tenn. Good morning, John, you're on the air.
JOHNGood morning, Diane. My question for the panel is since December 7, 1941, only one president has gone to Congress for a declaration of war. Where did we go off track with getting the country behind our war efforts?
FROSTWell, it's interesting because this has been an ongoing tension or conflict between Congress and the president and indeed, Congress enacted legislation to try to force the president to come and seek Congress' approval before waging war or at least after a month or two of waging war, if there was a need for immediate action. And the answer's been that presidents have managed to avoid that requirement sometimes and Congress had continued to financially support wars that it claims not to have either supported or been properly asked to support.
QUINNWell, I agree with Amanda on this and this is not at all what the founders were thinking. At the same time, you know, the whole concept of war has changed enormously in that time. In the 18th century, war was almost an extension of a political relationship. Look at the war of 1812. That really was launched by Madison as a way to really secure the final independence from Britain and it wasn't intended as World War II and most of the wars of the 20th century to result in the unconditional surrender of our enemy.
REHMBut doesn't the Constitution give the authority for declaration of war to the Congress?
QUINNIt does, absolutely.
WHELANThough I think there's a dispute as to what exactly that power means.
WHELANSome argue, and I have no fixed view on this, that the power to declare war is in essence a legislative power to trigger certain international obligations. It's Congress declaring, we are in a state of war with you and it's just (word?) from the power of self-defense or the power to make war, that's one argument. Now again, others take a more expansive view of the power to declare war, but I think there's at least -- there's a serious issue there over what that power carries with it.
REHMAll right. Thanks for calling, John. To Albuquerque, N.M. and Steve. Good morning, you're on the air.
STEVEThank you, Diane. My question is simply this, it's a little bit in the vein of an earlier caller and what it relates to is the Legislative Branch over a period of time has created the number of special rules which defines new powers on committee chairs, minority and majority leaders, even the speaker of the House, the president of the Senate and those rules, I'm wondering who approved them and where did they come from? And unlike the Patriot Act, which we can always go to the courts for redress, how do we go to the courts or who do we appeal to if we don't like these special powers that they've imparted to certain persons?
FROSTIt's a great question.
REHMEverybody's pointing to you, Amanda.
FROST(laugh) Well, it's such a great question because it's one of the many examples of important principles of government or rules of government that are nowhere laid out in the Constitution and yet which affect our policy making. The filibuster, one of our -- the infamous rule from this past couple of years that's having a great effect on legislation is not a constitutional rule, it's a rule of the Senate.
FROSTThe Constitution gives the two Houses of Congress the authority to create their own rules and they have done that and those rules are now very much influencing the legislative process. And what I -- all I can say about this is if you are unhappy with the way committee chairs have this authority to basically veto laws or nominees they don't like, I think the answer is our political process. Elect people that will change the rules of the House and Senate.
REHMAnd in just a couple of weeks, of course, you will have the opportunity to do that. Amanda Frost, she's professor of law at American University, Michael Quinn of James Madison's Montpelier, Ed Whelan, he's president of the Ethics and Public Policy Center and you're listening to "The Diane Rehm Show." We'll take another caller, Anne in Tahlequah, Okla. Good morning, you're on the air.
ANNEGood morning, Diane.
ANNEThank you very much. My question is about the Federal Reserve Act and the constitutionality of it, whether it's ever been challenged and how our central bank has garnered so much power.
REHMWhen did the Federal Reserve come into existence? Michael.
QUINNDiane, I'm gonna have to pass on this question (laugh) to our other experts.
WHELANWell, I claim no expertise in this. There was a case in the 1820s, I believe, in (word?), Md. in which there was a challenge to the existence of a national bank in the first place. The Federal Reserve, I believe, was established around the time of World War I or shortly thereafter, but I'm not aware of wither its existence has been disputed.
FROSTWell, if I can just sort of answer a little more generally, I'm also not an expert in this institution, but more generally, I think the question raises concerns about maybe independent agencies and the role that these sort of executive or bodies with executive power play that act independently of the president or at least...
REHMAnd of course this particular one has such incredible power over what happens in the economy. Thanks for calling, Anne. And to Bristol, Ind. Good morning, Mary.
MARYGood morning. Thank you for taking my call.
MARYOne of your guests said he felt the -- in terms of the balance of power that the Legislative Branch was the weakest of the three. I'm not quite sure I understand what he's saying because in my -- as I see it, they have a great deal of power when they can -- one senator can block the -- taking a nomination for a judge and not even identify who is blocking or when they can simply not fund something the president wants to do.
REHMSo indeed, what you're saying is, the Legislative is now more powerful almost than the presidency?
QUINNWell, if I could elaborate a little bit, what I was trying to point out is that the founders had this concept of three fairly equal branches of government and what we now hear is that the Judicial Branch is overreaching the imperial presidency is overreaching, if those two would -- you rarely hear about Congress and if the first two are right, then it does make you question, is Congress functioning the way that it really was intended to maintain that balance of power.
QUINNI think the issues the caller has also raised get more to the operation of the different -- of Congress and one thing that the founders were against was allowing minority control. And once you start having filibusters that require a super majority to bring to an end, what you're really creating is the ability of a minority to control legislation and that probably is something that should be reconsidered.
REHMAll right. And to Smyrna Beach, Fla. Good morning, Tom.
TOMGood morning. I have a question and a comment.
TOMI wanna send you something, so I need to know how your last name is spelled.
REHMIt's R-E-H-M. Go right ahead, sir.
TOMOkay. I heard it mentioned the power of the press.
TOMI think that's commonly misunderstood by the general public what that means and my understanding is you have the power to run a press and then if you happen to print something that's liable, then you stand -- you know, you better be able to afford an attorney. But in reality, people think that gives the press the right to print the truth and in reality, I find that that isn't always the case.
WHELANWell, there is a serious dispute over the proper meaning of the First Amendment protection of freedom of the press and as the caller indicates, there's an understanding that it prohibited prior restraints but that folks would be -- could be held liable for liable and other wrongs, so there's a question whether the 19 -- the case in the 1960s of New York Times v. Sullivan is faithful to a proper understanding of the First Amendment.
FROSTThe Supreme Court has been very active in First Amendment jurisprudence and has protected the press and speech and made it very difficult to sue reporters for even, you know, factually incorrect statements, especially about public figures or public issues and there is a debate about whether those court rulings were in proper interpretation of the -- certainly the original intentions.
REHMHow did the founders regard the press? You talked about that earlier, Michael.
QUINNThey regarded the press as a indispensable element in many ways. I mean, to begin with, the press communicated what government was doing to the people and secondly, it was a means for people to express their views and opinion through letters to the editor, if nothing else. So it really was considered an instrument of enabling a people to govern themselves and govern themselves well.
REHMBut surely there had to have been a little antipathy that went on from time to time early on.
QUINNOh, absolutely, even in Washington's administration. From the very beginning, you had newspapers that were just incredible partisan, but what they -- and don't forget that the Federalist Papers themselves were really op ed pieces published in newspapers.
REHMMichael Quinn, he's president and executive director of James Madison's Montpelier, Amanda Frost is professor of law at American University, Ed Whelan is president of the Ethics and Public Policy Center. This was the first in our series on the Constitution. Next Monday we'll be talking about the Bill of Rights. I hope you'll join us. Thanks for listening, I'm Diane Rehm.
ANNOUNCER"The Diane Rehm Show" is produced by Sandra Pinkard, Nancy Robertson, Susan Nabors, Denise Couture and Monique Nazareth. The engineer is Tobey Schreiner. Dorie Anisman answers the phones. Visit drshow.org for audio archives, transcripts, podcasts and CD sales. Call 202-885-1200 for more information.
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