The concept of individual rights and the limitation of government is once again becoming a visible political issue, with it's dependable champion, the United States Constitution, acting as the bulwark of limited government and liberty.
As it should.
The importance of this issue, the revitalization of local and state power, and the rejection of overarching federal control on every aspect of law and liberty is enormous, regardless of the area of individual rights addressed.
Whether Tea Partiers, legislators, Governors, or, most importantly, private citizens, it's critical that the provisions of the Constitution are understood as they are written, not as they are widely (and often inaccurately) represented.
It is, I believe, appropriate on this weekend of resurrection, to review the provisions of our Constitution, in hopes of furthering the resurrection of its principles as well.
The U.S. Constitution is the highest law in the land and the foundation on which all U.S. law must be based.
By establishing a structure for the federal government and preserving certain areas of sovereignty for the states, our Constitution has created a system of government that has allowed every area of civil, criminal, and administrative law to serve the needs of society without curtailing those rights it established.
The text of our Constitution is marked by four characteristics: a delegation of power, in which the duties and prerogatives of the executive, legislative, and judicial branches are delineated by express constitutional provisions; a separation of power, in which the responsibilities of government are divided and shared among the coordinate branches; a reservation of power, in which the sovereignty of the federal government is qualified by the sovereignty reserved to the state governments; and a limitation of power, in which the prerogatives of the three branches of government are restricted by constitutionally enumerated individual rights, unenumerated rights derived from sources outside the text of the Constitution, and other constraints inherent in a democratic system where the ultimate source of authority for government action is the consent of the people.
Our federal Constitution comprises seven articles and twenty-six amendments to them.
Articles I, II, and III set forth the basic structure of the U.S. government.
Article I defines congressional lawmaking powers, Article II sets forth the presidential executive powers, and Article III establishes federal judicial powers.
(The first ten amendments to the U.S. Constitution, known as the Bill of Rights, enumerate certain individual liberties that must be protected against government infringement.)
The rest of the Constitution contains other provisions intended to maintain a federalist system of government in which the federal Constitution is the supreme law of the land and the federal government shares sovereignty with the states.
Article I of the Constitution allocates the lawmaking power to Congress. Section 1 provides that "all legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and a House of Representatives."
Article I also requires that candidates running for the House of Representatives be elected directly by the residents of each state. (Originally, Article I endowed the state legislatures with the power to choose members of the Senate. However, the Seventeenth Amendment now requires all senators to be elected directly by the people of their home state.)
Section 8 enumerates specific lawmaking powers that Congress may exercise.
These include the power to declare war; raise and support armies; provide and maintain a navy; regulate commerce; borrow and coin money; establish and collect taxes; pay debts; establish uniform laws for immigration, naturalization, and bankruptcy; and provide for the common defense and general welfare of the United States.
Under this section, both the Senate and the House must approve all bills before they are submitted to the president. (There is no Constitutional provision for "reconcilliation".)
If the president vetoes a bill, Section 7 authorizes Congress to override the veto by a two-thirds vote in both houses.
Because Congress is a public body, this article requires the House and Senate to record and publish its proceedings, including the votes made by any of its members.
Section 8 also grants Congress the power to pass all laws that are "necessary and proper" to the performance of its legislative function.
In McCulloch v. Maryland, 1819, the Supreme Court broadly interpreted the Necessary and Proper Clause to grant Congress the implied powers to enact all laws that are useful, convenient, or essential to fulfilling its lawmaking and fiscal responsibilities.
(Thomas Jefferson had earlier argued that the Necessary and Proper Clause authorized Congress only to enact measures that are indispensable to the implementation of the enumerated powers, which provides a direct insight as to what the framers originally intended.)
Article I of the Constitution not only delegates specific powers to Congress, it also forbids Congress to take certain action.
Section 9, for example, prohibits Congress from passing bills of attainder and ex post facto laws. (A bill of attainder is a legislative act that imposes punishment on a party without the benefit of a judicial proceeding. An ex post facto law makes criminal or punishes conduct that was not illegal at the time it occurred.)
Section 9 further prohibits Congress from suspending habeas corpus (a citizen's right to protection against illegal imprisonment) except as may be necessary to preserve national security in time of rebellion or invasion.
Certain state legislative powers, such as the power to make treaties, alliances, and confederations, are also prohibited by Article I.
Article II provides that "the executive Power shall be vested in a President of the United States … [who] shall hold … Office during the Term of four Years … together with the Vice President."
The electoral college, which provides the method by which the president and vice president are elected, derives its constitutional authority from Article II (as well as from the Twelfth and Twenty-third Amendments).
The president also shares power with Congress in other areas under Article II.
Section 2 authorizes the president to make treaties with foreign governments, but only with the advice and consent of the Senate.
The president must also seek senatorial approval when appointing ambassadors; federal judges, including Supreme Court justices; and other public ministers.
Section 4 states that the president may be removed from office only through impeachment for "Treason, Bribery, or other High Crimes and Misdemeanors."
Article II, Section 2, makes the president the commander in chief of the armed forces.
Yet only Congress has the power to declare war.
Article III provides that "the judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish."
The Supremacy Clause in Article VI makes the Constitution, federal laws, and treaties "the supreme Law of the Land."
Under this clause, state courts may not interpret the Bill of Rights, or any other constitutional provision, differently than does the Supreme Court.
States may not provide less protection for individual liberties than is provided under the federal Constitution.
However, state courts do retain the power to afford their residents greater protection for certain liberties established by their own state constitution than is afforded by the federal Constitution
Constitutional law in the United States is the product of judicial interpretation of the U.S. Constitution in response to the constitutional issues in cases that come before the courts.
Thus, the courts develop a body of case law.
The decisions of the courts in these legal cases establish precedents, decisions that serve as models for future decisions.
Decisions by judges, who interpret and apply the Constitution to specific cases, create constitutional law.
For example, judicial interpretation of the meaning of general phrases in the Constitution, such as “due process of law” or “unreasonable searches and seizures” or “interstate commerce,” establishes constitutional law.
In the United States, the Supreme Court plays the most visible role in developing constitutional law.
Thus, over time these precedents accumulate to become a body of constitutional law against which government action is measured.
Many Americans applaud the constitutionalist and states-rights movements.
Many are also encouraged at the growth of grass-roots, individual citizen levels of understanding of these forgotten principles and foundations.
If this movement continues to grow, prospects for a return to the constitutional guarantees of freedom, limited federal government control, free enterprise, and all the other attendant liberties that gave America our unprecedented level of prosperity and freedom from oppressive government have renewed hope.
Hope for a resurrection of the greatness of America, and the liberty of its people.
Hope for a resurrection of the greatness of America, and the liberty of its people.
"A wise and frugal government, which shall leave men free to regulate their own pursuits of industry and improvement, and shall not take from the mouth of labor the bread it has earned - this is the sum of good government." ---- Thomas Jefferson
"Experience hath shown, that even under the best forms of government those entrusted with power have, in time, and by slow operations, perverted it into tyranny." ---- Thomas Jefferson
