I have already commented on the importance of the power of the President to nominate candidates for elevation to the Supreme Court. Because it is the Supreme Court that ultimately decides whether an act of Congress which has been made into law is authorized under the scope of the Constitution. This is not an easy task and can result in very different answers depending upon the character and make up of the Court at any given time. There is a likely chance that the next four years may see the replacement of two Associate Justices of the Supreme Court – and a change in the balance of power on the Court which will last for a generation.
The Constitution is viewed as a living document that has adjusted its scope to deal with technology and social change that could not have been envisioned by the authors in Congress assembled in 1787. There are clauses built in to the Constitution that give some flexibility in interpretation – but there is a tendency among more liberal Justices to read more into the Constitution than should be countenanced. This balance is what is at stake in any Presidential election – but particularly this election with Justice Stevens at age 87 and Justice Ginsberg at age 75.
In its basic form, the Congress has a limited number of enumerated powers and, according to the 10th Amendment, “the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”
In addition to the enumerated powers, there are a series of implied powers that are derived from the “elastic clause” in Article 1, Section 8, Clause 18 which authorizes Congress to make all laws that are necessary and proper for carrying into execution the foregoing powers and all other powers vested by this Constitution… for example creating the authority for the establishment of a national bank and the doubling of the size of the Country through the Louisiana Purchase.
The reading of this elastic clause is what gives a judge a reputation as a strict constructionist or a loose constructionist. Unfortunately some legislators, judges and Justices believe that this clause is sufficient to open a floodgate into the Constitution large enough to drive through a full coach with eight white horses and a brass band playing “Happy Days are Here Again”.
There are other clauses which have been popular for expansion of national power – specifically the Commerce Clause which authorizes the Congress to regulate interstate commerce.
Is all this rather academic “stuff” a part of our current political debate ? You bet.
Walter Williams, writing for Townhall.com, talks about the relevance to this years election. By the way, the clause he discusses (the terms “general welfare”) appear twice in the Constitution: first in the preamble and also in Article 1 Section 8 concerning the taxing authority. (“The Congress shall have power to lay taxes… to pay the debts and provide for the common defense and general welfare of the United States…”) The general welfare seems to refer to the states and not to the people – and this clause has been narrowly construed.
Political Loathsomeness By Walter E. Williams Wednesday, April 9, 2008
Do any of the prospective nominees of either party deserve respect from the American people? The answer partially depends on your knowledge, values and respect for the U.S Constitution.
When either Barack Obama, Hillary Clinton or John McCain take office, they are going to place their hand on the Bible and take the oath, "I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."
It will be a phony affirmation, but what's worse is that the chief justice of the United States, who administers the oath, and the average American will believe the new president.
You say, "Hey, Williams, that's a pretty tall charge! Explain yourself." There's a measure introduced in every Congress since 1995, by Rep. John Shadegg, R-Ariz., called The Enumerated Powers Act that would require that all bills introduced in the U.S. Congress include a statement setting forth the specific constitutional authority under which the law is being enacted.
The Enumerated Powers Act currently has 44 co-sponsors in the House. In the Senate, it has never had a single co-sponsor, and that's a Senate that includes our three presidential aspirants. The question one might ask is why would Sens. Obama, Clinton and McCain have a distaste for, and fail to support, a measure binding them to what the Constitution actually permits?
There's a two-part answer to that question. First, few congressmen, including our presidential aspirants, have the integrity, decency and courage to be bound by the Constitution, but more important is that congressmen and presidents simply reflect the constitutional ignorance or contempt held by the American people.
Most of what Congress is constitutionally authorized to spend for is listed in Article I, Section 8 of the Constitution and includes: coining money, establish Post Offices, to support Armies and a few other activities. Today's federal budget is over $3 trillion dollars. I challenge anyone to find specific constitutional authority for at least $2 trillion of it. That includes Social Security, Medicare, farm and business handouts, education, prescription drugs and a host of other federal expenditures. Americans who have become accustomed to living at the expense of another American would not want Congress to obey the Constitution, especially if it left out their favorite handout.
A harebrained politician or lawyer might tell us that the Constitution's general welfare clause authorizes those expenditures. Here's what James Madison, the acknowledged father of the Constitution, said: "With respect to the two words 'general welfare,' I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators."
Later, Madison added, "If Congress can do whatever in their discretion can be done by money, and will promote the general welfare, the government is no longer a limited one possessing enumerated powers, but an indefinite one subject to particular exceptions."
Thomas Jefferson explained, "Congress has not unlimited powers to provide for the general welfare, but only those specifically enumerated."
At one time there were presidents who respected the Constitution. Grover Cleveland vetoed hundreds of spending measures during his two-term presidency, often saying, "I can find no warrant for such an appropriation in the Constitution." Then there was Franklin Pierce who said, after vetoing an appropriation to assist the mentally ill, "I cannot find any authority in the Constitution for public charity," adding, "To approve such spending would be contrary to the letter and the spirit of the Constitution and subversive to the whole theory upon which the Union of these States is founded."
We should consider ending the charade and get rid of our 200-year-plus presidential oath of office and replace it with: I accept the office of president.
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