Try reading the Constitution, Part II

We’re doing a series of pieces celebrating the US Constitution. Part I is here.

Today, we’ll start the actual exercise of our series with Article I, pertaining to the legislative branch. If you’ve had the idea that the Constitution is hard to understand, too much legalistic language as well as too many archaic words, you might want to give it another try. Feel free to get out your pocket Constitution to follow along.

Article I covers the legislative branch.

Article I

We'll go through these section by section, with a bit of commentary. Here’s Article I, section 1:

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a senate and House of Representative.

You know what legislative means: related to the making of laws. “Herein granted” may not be our normal conversational speech, but “herein” means within this document, the Constitution. And granted means given. Then “vested” is the next slight challenge. It means fully given, or placed, as a legal right or privilege. In today’s speech it would be hard to get clearer. But we might say,

All legislative powers granted by this Constitution are placed in a Congress of the United States…

Then there’s the part about the Congress consisting of two bodies, a Senate and a House of Representatives.

Remember a history lesson about the Great Compromise? That was the way to balance the power of population against the power of the states. Each member of the House would represent a set number of constituents (voters being represented). The Senate would have two members from each state, to represent the states’ interests. The two would have to come to an agreement in order for the legislative branch to pass any law.

Section 2 explains details about the House of Representatives.

·         Members would be chosen every two years, in a vote by the people in the district they represent.

·         Members must be 25 or older.

·         Members must live in the state where chosen (and further, must live within the district they represent).

·         Members would be apportioned according to a count of the people.

o   There would be an “actual enumeration,” a census, every ten years.

o   There would be a representative for every 30,000 people (when written, but the number has changed, because of an upper limit on total representatives).

o   Every state would have at least one representative, no matter how small the population.

·         For vacancies happening mid-term, state executives (governors) would call special elections to fill such vacancies.

·         Members choose their own Speaker (their leader and spokesperson) and other officers.

·         The House shall have the sole Power of Impeachment (calling into question, or charging with a crime for, the behavior of an elected official, such as the president, vice-president, federal justices, or other officers).

Section 3 explains details about the Senate.

·         There are two Senators from each state.

·         Originally these were chosen by state legislatures; the 17^th Amendment changed this to direct vote by the people of the state.

·         Each senator’s term lasts six years. Terms alternate so that one-third are voted on every two years.

·         Vacancies happening during recesses of the state legislature (during the time before the 17^th Amendment) could be filled by governor’s appointment until the next meeting of the state legislature.

·         Senators must be at least 30 years old.

·         Senators must be at least 9 years a US Citizen prior to being elected.

·         Senators must live in the state for which they are being chosen.

·         The US Vice President shall serve as the President of the Senate, non-voting except to break ties.

·         The Senate shall choose their other officers, including a President pro tempore (temporary, a backup president as needed) in the absence of the VP, or when the VP has stepped up to act as US President (as when the president has been incapacitated, has died, or has been removed from office).

·         The Senate has sole power to try all impeachments. (That means, when the House impeaches an office—that is bring forth the prosecution—the Senate conducts the actual trial.

o   If the Senate finds the defendant guilty, they have the power to remove that person from office. While this has happened a number of times with judges, a president has never been removed from office. It’s possible Nixon might have been, but he resigned rather than go through the Senate trial.)

o   The Senate cannot inflict a punishment greater than removal from office and disqualification from further office. In other words, the Senate does not have the power to fine or inflict prison or execution.

o   The convicted person could still face indictment, trial, and punishment according to the law.

Section 4 explains times, places, and manner of holding elections for Senators and Representatives.

Section 5 explains that the Senate and House shall set their own rules and processes for conducting their business. And they must keep a record of all proceedings.

Section 6 explains compensation and privileges:

·         Legislators shall receive payment from the US Treasury (not from their states or local jurisdictions—so that all members shall be equal).

·         Legislators shall be exempt from arrest—except for treason, felony (serious crimes), and “Breach of the Peace.” The founders were trying to prevent using the law as a political attack while still preserving protection against betrayal of the country.

·         Legislators can’t create a civil office or increase the emoluments (payments) for such an office and then, during their term, be appointed to such an office. The founders were trying to prevent legislators from creating ways to use their office to financially benefit themselves.

·         Legislators can’t be a member of both bodies at once. For example, being elected to, or appointed to, one before their term in the other has expired. Once they take the new position, they are considered to have vacated the previous one.

Section 7 relates to budget issues:

·         Bills (proposed laws) for raising revenue (such as taxes, tariffs, or fines) originate in the House.

o   The Senate may propose or concur with amendments, as on other bills.

·         Bills must have passed both the House and the Senate. (Bills can originate in either body, and then be passed to the other body. If the second body makes significant amendments, the bill goes back for reconciliation. Both bodies must agree on a bill before it is considered passed.)

·         Bills that have passed in both bodies are presented to the President to sign into law.

o   If the president objects to a law, he can return it to the originating body.

o   If the originating body reconsiders the bill and 2/3 approve, it becomes law, even without the president’s signature.

o   If the president doesn’t sign a bill but neither does he return it to the originating body within ten days (excluding Sundays and days when Congress has adjourned and thus prevents a bill’s return), it shall become law.

Article I, Section 8 covers nearly every enumerated power.

Enumeration of Powers

Section 8 is where it really gets good. Section 8 lists what the legislative branch can make laws to do (followed in Sections 9 and 10 with listed limitation). There are 18 enumerated powers of Congress, as written in the Constitution. To save space here, you can read them directly. Also, we talked about there here, where we add in a couple of additional ones from the Amendments. 

To be thorough, let’s list the prohibitions in section 9 and 10 (some rewording).

Section 9 tells what Congress cannot do:

·         Congress can’t prohibit migration or importation of persons from one state to another until 1808, but a duty of up to $10 per person can be imposed.

·         Habeas Corpus can’t be suspended except in cases of rebellion or invasion that require it.

o   Habeas corpus means that if a person is confined, meaning held in prison, they must be physically brought before a judge to determine if the confinement is lawful.

·         No Bill of Attainder or expost facto Law shall be passed.

o   A Bill of Attainder is a legislative act (bill) pronouncing a person guilty without a trial.

o   An expost facto law is legislation that declares people guilty of violation retroactively, declaring their guilt for acts committed before a law was the law.

·         No Capitation, or other direct, Tax shall be laid.

o   This means no direct per person tax, or in other words, no income tax.

o   This was changed with the 16^th Amendment in 1913, which now allows the income tax.

·         No Tax or Duty on articles (goods) exported from any state.

o   An example would be taxing corn that Nebraska exports to other states or countries. The federal government can’t pick and choose ways to burden particular states.

·         No preference by Regulation of Commerce or Revenue to the Ports favoring one state over another. And vessels (ships) have to pay duties (taxes or fees) to leave one state and enter another.

o   An example would be regulating in such a way that eastern coast ports would have an advantage over gulf coast ports.

·         No money can come from the Treasury unless the legislature has made it legal by passing an appropriations bill. Also the federal government is required to publish a regular Statement and Account of Receipts and Expenditures of all public Money; they have to show their account books.

·         The US does not grant any title of nobility. Also, no public officeholder is allowed to accept any present Emolument (money payment or other profit), Office, or Title from a leader of a foreign state (country).

Section 10 limits the state governments, so they cannot act against the other states, or against the interest of the nation:

·         States can’t enter into any treaty, alliance, or confederation.

·         States can’t grant Letters of Marque and Reprisal.

o   This would allow an attack on a ship, for example, based on the state’s declaration. It is essentially a private war. States cannot declare war, in other words.

·         States can’t coin Money.

·         States can’t emit Bills of Credit.

o   These are promissory notes. It’s a type of money, in other words. They were not to pay debts with anything but legal tender.

·         States can’t impose duties on imports (with the exception of paying for legally required inspections).

·         States can’t keep their own troops, or enter into a compact with other states, or declare or engage in war, except when actually or imminent invasion.

·       So that covers all of Article I.

We’ve covered all that the federal government can do, the sum total. There are some notable things missing:

·         Power to take income from those who earned it to give to those the government chooses to favor (income redistribution).

·         Power to offer charitable services (welfare).

·         Power to guarantee income, food, or housing.

·         Power to supply and/or govern education.

·         Power to force purchase of a service or product (such as health insurance).

·         Power to require payment into a retirement supplement (Social Security).

·         Power to interfere with commerce that doesn’t cross state lines.

·         Power to redefine marriage in a way that is contrary to longstanding law and tradition, and to enforce acceptance of the new definition, even when it violates personal religious beliefs.

·         Power to subsidize any industry (alternative energy).

·         Power to target industries in accordance with a social agenda (gun manufacturing, automobile manufacturing, nuclear energy, oil and gas, fast food, or sugary drinks).

·         Power to use taxpayer funds to support abortion.

·         Power to subsidize or control student loans.

·         Power to take over any industry (as when the Obama administration temporarily took over General Motors and banks).

·         Power to favor or disfavor individuals or groups for hiring, educational opportunities, or other purposes based on their race or religion (for example, affirmative action).

There are certainly more things the government is doing, or trying to do, that are well beyond the enumerated powers.

Some people characterize the very desire for limiting government to our Constitution as hating all government, and then claiming we’re hypocritical for wanting a military or border control to protect our sovereignty. That’s a mischaracterization. The pro-Constitutional view favors government—but a limited government. Government must be limited to its proper role: protecting life, liberty, and property. Or, more specifically, as the Preamble to the Constitution says about what a more perfect union is established to do:

Establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.

The founders assumed those government responsibilities enumerated in the Constitution could be managed on about $20 a year (in near-current-day dollars). Imagine how easy it would be to pay off the national debt, in a thriving economy (which happens when government gets out of the way), if government did only what it was allowed to do.

Government by Consent or Expertise

I’ve been going through a Hillsdale online course (their newest, I think) called Congress: How It Worked and Why It Doesn’t. In his introduction, Hillsdale President Larry Arnn points out that the title refers to both past tense—“when it worked”—and present tense—“it doesn’t.” There isn’t anything in the title that says, “And how we get it to work again.” I’m halfway through, but I’m hoping there will be something hopeful like that.

Anyway, in our ongoing primer on the Constitution here, it’s appropriate to talk about what has been going awry with Congress over the past century.

According to Article I of the Constitution, legislation happens in the legislature, composed of two houses: the House of Representatives, which is based on population, and the Senate, which provides equal representation for the states. The two houses have to come into agreement on any legislation that they pass along to the president for his signature, before it becomes law.

But the self-proclaimed progressives, such as President Woodrow Wilson, and others of his time—Herbert Croly, John Dewey, both Theodore and Franklin Roosevelt—thought they knew better than the founders about how things should be run.

They set out, rather matter-of-factly, to overturn the US Constitution, and replace it as they saw fit. And they and their followers, over the course of a century, have been far too successful.

The idea, they claimed, was that life in the industrialized world was too complex to be handled by anyone but experts. They liked the idea of using the legislature to express the general will of the people—a desired outcome, like clean water or safer working conditions, for example—and then turning over all the details to some expert administrative body.

They claimed that this would better do the will of the people, and do it more efficiently—and separately from politics.

Dr. Kevin Portteus
screen shot from lecture 5 of
Congress: How It Worked and Why It Doesn't

Dr. Kevin Portteus, the teacher of this Hillsdale course, in Lecture 3: “Politics and Administration,” offers this definition:

Politics is politics in what we might think of as the ordinary sense, the martialing of votes, the changing of public opinion, and the enactment of a political program. Whereas, on the contrary, administration constitutes the implementation of the broad policies laid out in the political process.

It didn’t matter to the progressives that the legislature would be giving up their lawmaking power. Their “progressive” vision was all that mattered.

So Congress would pass vague “laws” requiring a general desired outcome. And they’d turn over the authority to accomplish that to administrative bodies of bureaucrats, with practically unlimited authority to set the rules, enforce them, and adjudicate disputes—all branches of power in one.

So now, besides voters and elected officials, the process has a third party. Dr. Portteus describes these extra-constitutional lawmakers, and three basic characteristics required in order to be one. Pay attention to the second one; there’s a lot there. And then, if you understand the second, how do you square that with the third?

That’s the bureaucrat, the administrator, the official. What does he look like? Well, Croly says, “The experts charged with the administration of these laws would become the official custodians of a certain part of the accepted social program. In other words, they must implement some portion of the progressive social platform. So if you’re put in charge of EPA, your job is to implement clean air and clean water policy. That’s your corner of a just society that’s your responsibility.

But, in order to do that, we need people who have three basic characteristics.

The first one is that they’re experts. They have to be trained experts in their particular fields. And we’ve seen this.

The second attribute of a progressive bureaucrat is that he be independent of the partisan political process. And this was the driving force throughout the Twentieth Century behind the creation of entities like independent regulatory commissions. Get the policymakers out of the electoral process, and get them out from under the control of elected officials, so that the people—public opinion—and the people’s elected representatives don’t get in the way of the application of expertise to solve these social problems.

It’s kind of interesting, when you think about it, because, in the progressive mindset, we’re going to have bureaucrats who are pretty far removed from the political process. And if you follow the logic of this argument, the end result of restricting the people’s ability to control government officials—the end result of that is going to be greater implementation of democracy. That is to say, the goals stated in the people’s legislation are going to be less likely to be subverted, because the people who are implementing them are going to have no interest except serving the public interests.

It sounds kind of naïve to us, but they really believed this. They really believed that you were going to have these people who were not gripped by self-interest in the way that the rest of us were, that somehow they would be outside of the ordinary limitations or foibles of human nature. And they would be responsive only to the public good.

And they really believed this. This was not cynical on their part. They were serious.

But, there was one other characteristic that you could not get around. And that is that these people must be committed progressives. They cannot be anti-progressives. Because, if they’re not committed progressives, then they will not zealously enforce the mission of the agency of the program over which they were put in charge.

Because, the danger in that circumstance is that, if such a person is put in charge of a program or of an agency, he would use that position as a vehicle for circumventing the will of the people as stated in legislation.

To give an example, a while ago, about ’99 or 2000, Bill Clinton had to fill a spot on the Federal Elections Commission, and he chose to fill that spot with a man named Bradley Smith. Now, Brad Smith is the expert in federal campaign finance law. And, so, there’s no doubt that he knows his stuff. And by putting him on the commission, he would be independent of the partisan political process. Now, Smith recounts in his book on free speech that his chief opponent, when he was nominated, was Clinton’s own vice-president, Al Gore. And, as Smith recounts in his book, he says, “The reason that Gore opposed me was not because I didn’t know my stuff, and it’s not because I was going to be a captive tool of special interests, because I had my position on the committee. What he objected to was the fact that I questioned the wisdom and the constitutionality of current and proposed campaign finance restrictions. In other words, that I was not committed to zealous enforcement of federal campaign finance programs and the implementation of new and ever more restrictive programs.”

So, you can’t have someone who doesn’t believe, for instance, in greater restrictions on pollution at the head of the EPA. That person is, by definition, because of ideology, ineligible for the position. He must accept—the progressive administrator must accept the basic progressive impulse of society and of the program he is supposed to run. And, as Croly says, “He qualifies for his work as an administrator quite as much by his general good faith as by his specific competence.” So, in other words, as important as his technical ability is his commitment to progressivism.

So, non-progressives, if you want to call them conservatives, are by definition ineligible to hold any of these administrative positions.

You saw similar dismay over various Trump appointees, but in particular Betsy DeVos over Education. The Department of Education still exists at the federal level after almost two years—which is disappointing to some of us. But the fear from the other party is that she might “gasp!” find something to cut. And the very nature of a federal agency is that it must keep growing. Reagan found similar pushback on his policies as well, even failing to end the then-new Department of Education.

In this and other agencies, some of the difficulty come from within the agency. Perhaps not every employee in an agency is a fully committed progressive (which means Democrat or socialist, but only very rarely a non-conservative Republican). But most are, by definition.

Thomas Sowell
image from here

There’s a story, a pivot point Thomas Sowell talks about his time at the Labor Department, after finishing his PhD in Economics as a Marxist. In short, he was studying the sugar industry of Puerto Rico, and whether the Labor Department’s setting of minimum wages was leading to unemployment. There was a way to test whether this was true, or whether a competing theory about hurricanes harming the crops was the cause. Thomas Sowell figured out they could get data about crops standing in the fields before hurricanes to tell them. That data wasn’t in the Labor Department; it was in the Department of Agriculture. There was huge pressure not to even ask for it, but he filed a request:

That was 1960. I have yet to receive an official reply to my request.

This was more than an isolated incident. It forced me to realize that government agencies have their own self-interest to look after, regardless of the interests of those for whom a program has been set up. Administration of the minimum wage law was a major part of the Labor Department’s budget and employed a significant fraction of all the people who worked there. Whether or not minimum wages benefited workers may have been my overriding question, but it was clearly not theirs. They had reasons to want to believe that it did, but no real incentive to probe too deeply to find out.[i]

Learning that the administrative state had nothing to do with helping people, but only in preserving their own jobs, or putting forward their own ideology—that’s when Thomas Sowell went from Marxist to free-market economist.

In Lecture 5, “Legislation and Regulation,” Dr. Portteus says that government by consent, which we have in the Constitution, and government by expertise, as in the administrative state, are mutually exclusive.

What’s more, any intention of insulating the administrative lawmaker from politics is an abject failure. As Dr. Portteus concludes: 

It does not insulate rule makers from legislative politics. Regulatory agencies are buffeted by all of the political forces that affect legislators and sometimes more so.

It does not base rules on expertise, or even reason. And the CAFE[i] standards example is a wonderful case in point in this regard. And at the end of the day, it doesn’t serve the public interest. That is to say, this process gives undue weight to organized special interests, who influence the regulators and key politicians.

This is why, for instance, it has become so critically important, if you own a business of even modest size, that you have a lobbying operation….

So the regulatory process is something very different from the legislative process…. Over the course of the 20th Century, the regulatory process developed and established in the Administrative Procedure Act is a very different way of making policy from the process established in the Constitution for making laws. The modern one attempts to substitute for, and posit itself as, the parallel legislative process. But it really leads to a transformation of the regime, because it yields a transformation in the way legislation is made.

Another day we can talk about what Congress is doing with its time, if it isn’t making laws. But for now, let’s just remind ourselves of this Spherical Model axiom:

Whenever government attempts something beyond the proper role of government (protection of life, liberty, and property), it causes unintended consequences—usually exactly opposite to the stated goals of the interference.

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[i] Thomas Sowell, A Person Odyssey, © 2000, pp. 130-131.

[ii] CAFE is Corporate Average Fuel Economy