The Constitution Today - Separation of Powers
http://thedianerehmshow.org/shows/2010-10-19/constitution-today-separation-powers
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.
Guests
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.
Comments
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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.
(In fact, apparently the only significant corporation of the day was the East India Tea Company - a monopoly corporation created by the Kind and thus shed when we won our freedom from England.)
Question: Had there Founding Fathers and Mothers* known of the power corporations would come to wield, would they have included checks and balances on corporate power?
Bob Walker
Bowling Green Ohio
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* I expect there was much discussion at the colonial and post colonial dinner tables and plenty of FF couches slept on when and if spousal opinions were routinely ignored
Background:
Corporations are not mentioned in the Constitution, and mentioned by Federalist Paper author James Madison only in regard to ecclesiastical corporations:
"Besides the danger of a direct mixture of religion and civil government, there is an evil which ought to be guarded against in the indefinite accumulation of property from the capacity of holding it in perpetuity by ecclesiastical corporations. The establishment of the chaplainship in Congress is a palpable violation of equal rights as well as of Constitutional principles. The danger of silent accumulations and encroachments by ecclesiastical bodies has not sufficiently engaged attention in the U.S."
"Monopolies, Perpetuities, Corporations, Ecclesiastical Endowments" James Madison, essay probably written between 1817 and 1832. See:
http://en.wikiquote.org/wiki/James_Madison
THANK YOU for doing this series on the Constitution.
I'm sorry to criticize, but the document shown at the top of the page is not the Preamble to the Constitution. It's the Declaration of Independence.
What baffles me the most is how the constitution explicitly grants the authority to declare war to the legislature. However the executive has long ago seized the defacto authority to make war and the legislature has never challenged the executive's authority. My reading of the constitution says that the president is the commander in chief of our military and that is probably wise since a legislature consisting of hundreds of members would have a real tough time as commander of forces. But the constitution clearly states that the legislature has the authority to raise armies and navies and decide whether to commit them to war.
According to our Constitution, Congress is supposed to declare war whereas the President is only supposed to oversee its execution as Commander in Chief. Please talk about this as Congress has not declared any of our wars since WWII. Also, I would be very interested if your panel would discuss the differences between how Congress creates federal laws and the Supreme Court interprets or strikes them down due to their unconstitutionality.
Thanks for covering this very important topic, Diane,
George Washburn
Florence, NY
I would like to hear discussion of the Bush administration's ideas on 'unitary' executive power in time of war. Did anyone, say Mr Addington, ever come up with arguments with any kind of intellectual respectability, for their position?
I always took their position as the claim that the President, as commander-in-chief of the Army has the right to in essence be the commander-in-chief of the nation, I guess with the exception of steel mills which are covered by explicit and negative precedent.
Also: What do the panel think of Marbury v. Madison? It seems like a big power-grab, but I approve of it---was any _other_ method of removing unconstitutional laws discussed in Philadelphia or in the Federalist Papers?
Useful definitions from 18th-century English:
Constitution --> blueprint or components' description
President --> One who presides over a body
Creature --> Creation, product, as in 'Property is the Creature of Society'
How did the institution of Executive Orders come about? It seems they allow the president to circumvent congress' authority to legislate.
Thanks, Brian. I was browsing the "Charters of Freedom" images on the National Archives website, which includes the Declaration of Independence, and I uploaded the wrong image by mistake. We really appreciate your pointing out errors like this. I've corrected it now. Thank you for listening and visiting our site!
An excellent and readable source for learning about the constitution and how the gov't it describes had started and evolved is:
"Governing America" by L P Schultz, Prof. of Political Science at Assumption College in Worcester MA
It describes the original tension between the Federalists and the Anti Federalists..... and how progressive government has been mainstream since TRoosevelt.
When did the "advise and consent" of congress on presidential appointees become the confirmation process we see today?
Many see the beginning of the partisan divide beginning with Ted Kennedy's opposition to Judge Bork. Thus being "Borked" during the confirmation process, which we now see far too regularly.
Wouldn't Iraq have benefited from a bicameral legislatue, with a Senate and a House of Representatives, given the approximate geographical split between Sunnis, Shiites and Kurds? Why didn't the U.S. encourage such an arrangement in the Iraq Constitution?
In addition to the Constitution itself, is there a suggested book to help us educate ourselves on the Constitution?
Can your guests or in a future show, discuss Thomas Jefferson's statement that in order to have a democracy, there must be a moral society.
Annie
1. Following up on the concern for undue exercise of influence due to power of the purse, I wonder what serious debate there was in the Constitutional Convention in opposition to the creation of the Senate (and particularly the notion of each state receiving 2 seats regardless of population).
Every civilized industrialized nation in the world today - the United States being the sole glaring exception - has universal health care and pays less than 1/2 of the per capita costs than we do in the US - and we have 10s of millions of uninsured or vastly under-insured people. In my view, the fact that all of the most prominent of these nations either do not have a Senate or have one that is vastly weaker than ours and appointed with proportional representation is RELATED to the passage of such progressive social insurances in these nations…
I'm baffled by the recent decision to allow the spending of money to be considered speech, but isn't this also in a way saying it's fine to also bribe officials?
After all, bribery is really just spending money for what you want.
Unlimited, unknown spenders=bribery of the public?
2. The Senate, by its very nature is more subject to Oligarchic influence than the House of Representatives and inhibits most directly that sacred mandate "to promote the general welfare". This is because each Senatorial seat holds far more power than a corresponding seat in the House and a race can be more easily propped up by a heavily funded lobby - esp. since Citizens United - with a far greater return for the buck. For example, if a large corporate lobby like the US Chamber of Commerce is willing to outspend 10 to 1 its progressive rivals in a Montana or Mississippi Senatorial race, it can easily win the seat for its puppet candidate. How can the local population base of working people - who want a minimum wage increase, who want to stop outsourcing, who desire finance & lending regulations - raise enough money on their own to defeat the candidate funded by the PAC of the multinational behemoths - LET ALONE achieve an effective voice by overcoming the arbitrary FILIBUSTER-proof majority (added far after the ratification of the Constitution in 1789)? The US Senate, because of its skewed representation basis, inane rules surrounding committee power, debate, Fillibuster and cloture, and unfair veto and revising power, is far more subject to the influence of corporate and financial lobby than the House.
We should abolish the Senate or drastically change its powers and structure and seek to mimic the parliamentary forms of government found in western Europe, Canada and Japan.
Basing his arguments on the writings of Charles Beard and original sources Michael Parenti has long argued that the primary separation of power is between the Oligarchy and the public. After reading several biographies of the Founding Fathers over several years I have come into almost complete agreement with Parenti. Our Constitution was never ratified by the people but came in under elite conventions held in each state. The Bill of Rights was an afterthought used for quicker passage in more egalitarian colonies. The right of property (and big property at that) is the paramount consideration in this founding document. The military clauses were instituted more for domestic suppression than for external defense. For every right and protection of the lowly citizen there are several overrides. As corporate power has grown the Constitution has been adapted to protect elite contracts that contradict human rights, and to allow the Executive to mobilize force to protect the interests of corporate business overseas. It now seems ludicrous because corporations lack any national loyalty. The usurped resources of the taxpayer are never compensated with jobs or prosperity. The Supreme Court are therefore traitors to the people and the nation for the corporate loyalty reflected in recent precedent ignoring decisions.
Part One
It’s rather annoying that the caller’s question about judicial review was badly answered by the guests. Judicial review wasn’t dreamed up by the courts. It was expected and endorsed by both supporters and opponents of the Constitution. In the Federalist Papers Alexander Hamilton said it was necessary to guarantee a limited government:
“Limitations of this kind can be preserved in practice no other way than through . . . the courts of justice; whose duty it must be to declare all acts contrary to the . . . constitution void. Without this, all . . . rights or privileges would amount to nothing”.
* * * *
“The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges as, a fundamental law. It therefore belongs to them to ascertain its meaning. . . . ” (Number 78, emphasis added.)
There could be no clearer expression of the “original intent” for judges to have such power. Hamilton explains this further:
“. . . the Constitution ought to be the standard of construction for the laws, and that wherever there is an evident opposition, the laws ought to give place to the Constitution. But this doctrine is not deducible from any circumstance peculiar to the plan of the [constitutional] convention, but from the general theory of a limited Constitution. . . .” - The Federalist Papers No. 81. [Emphasis added]
Thus the power of judicial review stems from the very concept of a government limited by a written Constitution. It is essential.
Part Two
Judicial review was expected and endorsed by both supporters and opponents of the Constitution. During the ratification debate in Pennsylvania, James Wilson (one of the drafters of the Constitution) declared:
“. . . the legislature may be restrained, and kept within its prescribed bounds, by the interposition of the judicial department. . . . For it is possible that the legislature, . . . , may transgress the bounds assigned to it, . . . ; but when it comes to be discussed before the judges . . . and find it to be incompatible with the superior power of the constitution, it is their duty to pronounce it void; . . . . ” - The Debate on the Constitution, Part One, pages 822 - 3 (The Library of America, 1993).
Oliver Ellsworth (another drafter), speaking at the Connecticut ratification convention, stated:
“This constitution defines the extent of the powers of the general government. If the general legislature should at any time overleap their limits, the judicial department is a constitutional check. ” - Debate, Part One, page 883.
Other drafters agreed. Luther Martin (of Maryland):
“And as to the Constitutionality of laws, that point will come before the Judges in their proper official character. In this character they have a negative on the laws. ” - The Anti-Federalist Papers, page 123, Signet Classic Edition (New American Library, 2003).
While George Mason (Virginia) observed that the judges could declare an unconstitutional law void. (The Anti-Federalist Papers, page 124.)
Part Three
Even the opponents of the Constitution recognized this power in the judiciary. One of them feared it. Speaking of the Supreme Court, “Brutus” (anonymous author of letters to newspapers during New York’s ratification debate) cautioned:
“The power of this court is in many cases superior to that of the legislature. . . . this court will be authorised to decide upon the meaning of the constitution, and that, not only according to the natural and obvious meaning of the words, but also according to the spirit and intention of it . . . . The supreme court then have a right, independent of the legislature, to give a construction to the constitution . . . . If, therefore, the legislature pass any laws, inconsistent with the sense the judges put upon the constitution, they will declare it void; . . . . ” - Debate, Part Two, pages 375 - 6 (emphasis added).
But another opponent, Patrick Henry of Virginia, endorsed this power, fearing only that it would not be used by the Federal judges (as it had by Virginia’s state judges)!
“Yes, Sir, our Judges opposed the acts of the Legislature. We have this land mark to guide us. - They had fortitude to declare that they were the Judiciary and would oppose unconstitutional acts. Are you sure that your Federal Judiciary will act thus?” - Debate, Part Two, pages 684 - 5 (emphasis added).
So the idea that the courts will interpret the Constitution, and declare void all laws contrary to that interpretation, was not something dreamed up by Chief Justice Marshall out of thin air. It was debated, accepted, and expected by those who gave us the Constitution (and by its opponents too). As he wisely and correctly declared:
“It is emphatically the province and duty of the judicial department to say what the law is.” - Marbury v. Madison, 5 U.S. 137 at 177, 2 L.Ed. 60 (1803).
These are interesting provocations but, while the propertied in any age usually have the system rigged to their advantage, in this country and in others there have been exceptions. Take the New Deal: Labor's long haul struggle from 1886 - 1938 went from no work hour limits or wage requirements, from rampant child labor and workplace safety abuses to the establishment of the 40 hour work week for non-farm, non-domestic workers, the est. of a min. wage, the abolishing of many forms of child labor, the legal recognition and protection of Union activity (later eroded by Taft-Hartley, the LMRDA and the courts), and the est. of Social Security. Given the innumerable imprisonments, killings, bustings, firings, bribings, suppression of information, and fierce legislative opposition backed by corporate interests on the Right, it could not be said that the reforms that were made were in the immediate and obvious interest of the profiteers. Therefore, let us hold some stock in this corrupt but not impenetrable system for the transformation of the lives of the masses for the better. Continue the fight!