THE CONSTITUTION ITSELF
Thus far we have examined the purposes behind the Constitution. We’ve discovered its foundational ideas and have discussed ways to apply those principles to today’s governance. Now that we have this understanding of the Constitution’s “heart,” it’s time to examine the structure and language that are its “bones.”
In the seven articles making up the Constitution, the founders set up a government that has three separate branches, each with distinct duties and powers. Each branch is meant to rein in the other two when they do anything unfair or poorly thought through. This is what is meant by a “system of checks and balances.”
The first branch, the legislative, consists of the United States House of Representatives and the United States Senate; this branch writes the laws of the United States. The executive branch, which consists of the president of the United States, the vice president of the United States, the Executive Office of the President, and all of the cabinet departments, is tasked with enforcing those laws. The judicial branch, which consists of the United States Supreme Court and the federal courts as designated by Congress, has the responsibility of administering justice through a court system.
Our Constitution also defines the kinds of laws that may be created, the process that the legislative branch of our government must follow in creating such laws, and the methods to be used for their enforcement. It further delineates those powers that are specifically granted to the federal government and says that all other powers are retained by the states or the people.
Our Constitution has been in effect for well over two hundred years. It served us superbly when we were relatively small and inconsequential, and it serves us just as well now that we are the most powerful nation in the world. This says a great deal about its versatility and relevance in all situations. In this section we will examine the entire document article by article, seeking to discover its wisdom and learning how to defend it.
In most cases I will talk about the specific provisions in my own words. The full text of the Constitution can be found in this book’s appendix, and I encourage all readers to read it for themselves.
CHAPTER 9
ARTICLE 1, THE LEGISLATIVE BRANCH
“Everyone must submit to governing authorities. For all authority comes from God, and those in positions of authority have been placed there by God.”
Romans 13:1
In my spare time I love to play pool. I find it relaxing and challenging after a long and stressful day, and I enjoy playing it with my wife, who has become a formidable opponent. Whenever I am playing at a location away from home or playing a new challenger at home, the game begins with a statement of the house rules. There are rules about these rules: They must be mutually agreed upon before the game starts, they cannot be changed midgame, and outsiders have no right to change them.
The first article of the Constitution establishes the rules for the branch of our government that writes our laws. It tells us who can make the laws, sets in place the procedures for writing them, and tells us their scope and limits. Without these guidelines the functioning of government would be confusing and dangerous, because the most powerful factions would be able to force their will upon the people.
Known as the legislative branch, Congress is made up of two houses, the Senate and the House of Representatives. Always remember that your senators and representatives are representatives of the people. Your involvement is essential to making sure that they are an accurate reflection of the people’s will. Through your vote you give power to your fellow citizens to make the laws of our nation, so it is your responsibility to choose wisely.
ALL LEGISLATIVE POWERS
The first section of the first article establishes one key principle for American government: Only our elected legislators can make laws. Congress, and only Congress, has the power to create laws. The reason for restricting legislative power to Congress is simple—of all the members of our federal government, the representatives are the closest to the people. The founders wanted to make sure that the people were truly in charge of lawmaking, but they knew true democracy was impractical—imagine having millions of people voting on each issue Congress takes up. Instead they set up a democratic republic, where the people’s elected representatives make decisions on behalf of their fellow citizens. This system, when it works correctly, is both efficient and responsive to the needs of the people.
Our laws are not to be made or remade by the president or by the courts or by anyone else. The president or judges may make suggestions to Congress, and there are situations when the other two branches can rein in the legislative branch, but they have no legal power to write laws.
Unfortunately, both the judicial and executive branches keep ignoring this fundamental principle. In 2012 the Supreme Court actually changed the Affordable Care Act in order to make it constitutional. President Obama, through the use of executive orders, has altered the nation’s immigration policies. Executive orders are constitutional, but they are meant to be used only rarely and in circumstances where such quick action is required that congressional action is not feasible. In this case the immigration issue was not an emergency, and the president used the order to make a political point.
These recent unconstitutional actions should alarm every student of our founding document. We should encourage the courts to strike down illegal executive orders. And we should pay close attention to which players are disregarding the rule of law and vote them—or, in the case of judges, their supporters—out of office at the first opportunity.
THE HOUSE OF REPRESENTATIVES
During the Constitutional Convention of 1787, the representatives of the large and small states fought bitterly over how representation would work. The large states argued that they deserved more representatives in the federal government because they had more people. The small states argued that each state should have equal representation so that the large states could not force unfair policies on the small states.1
Fortunately, the parties were eventually able to arrive at a satisfactory compromise. Every state has two senators, which gives all states equal power in the Senate. The number of representatives each state has in the House of Representatives is proportionate to the state’s population, which gives the large states more power in that body of Congress. Currently we have 535 members of Congress, 100 of whom are in the Senate and 435 of whom are in the House of Representatives.
Section 2 of Article 1 outlines the structure of the House of Representatives. It mandates that each state have elected representatives in proportion to its population, requires that those representatives be elected every two years, and sets rules for who can vote and how the population of each state is calculated.
Term Duration and Limits
The founders of our country wanted the representatives of the people to be accountable to the people, so they chose to require elections or reelections every other year. They felt that this frequency would keep the representatives closely connected to their constituents because two years was too short a time to forget about where they came from.
The shortness of the term was also designed to make being a representative possible for more people. Being a representative was initially a tough job with very few perks, so most people would not have been interested in serving for very long. Today being a U.S. representative is a prestigious and well-compensated position, so this is less of a concern.
Many representatives now run for office multiple times, and they tend to become more corrupt with each term. They need to raise cash to finance their repeated campaigns and as a result become entangled with special-interest groups. Ideally, informed voters would recognize cronyism and vote corrupt politicians out of office. However, because apathy and lack of education seem to prevent this from happening, it may be appropriate to consider a constitutional amendment establishing term limits.
Eligibility
W
ho is eligible to be elected to the House of Representatives? The founders decided that representatives must be at least twenty-five years old, residents of the state they represented, and citizens of the United States for at least seven years prior to their election. This would ensure that representatives were mature enough to lead and familiar enough with their constituents to represent them well.
Election Procedure
Initially the founders were unsure of who should be allowed to vote for the U.S. representatives. They resolved the dilemma by allowing each state to determine its own voter qualifications, requiring only that each state use the same qualifications that it used for electing representatives to its largest publicly elected state legislative body.
Determining Number of Representatives
For a system based on population to work correctly, an accurate count of the population of each state must be conducted on a regular basis. Because the count had to be done meticulously, the crafters of the Constitution decided that a census must be done once every ten years. We still use that timetable today.
Because the number of representatives was tied to population, states that had many slaves, indentured servants, and in some cases Native Americans wanted to count these people in the censuses, even though they were not voters. The slave states were particularly eager for power in order to create legislation that would allow for the expansion of slavery throughout the entire nation. In an effort to dilute the power of the slave states, the Northern delegates secured a compromise. A slave would count as three fifths of a person, not because the founders thought slaves were not fully human but because counting them that way gave the abolitionists a fighting chance of ending the evil practice.
An extraordinary amount of trust must be placed in the census system, because any state could gain unfair advantages by inflating the number of its population. There already exist a number of safeguards to preclude cheating, but further measures are constantly being evaluated and should be welcomed. I hope we can continue to find ways to encourage integrity in all aspects of government operations.
Originally each U.S. representative was to represent no more than thirty thousand people, but as our nation grew this became impractical. With that ratio there would be an unworkably large number of legislators in the House of Representatives. For this reason, in 1929 a law was passed limiting the total number of representatives to 435, which is where it remains today.
Vacancies and Leadership
Whenever a House seat is vacated midterm (because of death, resignation, or anything else), the Constitution requires the governor of the representative’s state to order a special election to fill the seat. This is an important clause because it prevents any state governor from appointing U.S. representatives instead of having them elected by the people.
The most powerful person in the House is the Speaker of the House. The Speaker is chairman of all the official meetings of the House of Representatives and has the ability to promote a bill—or to suppress it, even though many other representatives have invested enormous time, effort, and resources in it. The members of the House of Representatives can choose anyone they want to be the Speaker of the House, whether that person is an elected representative or not. If the members of the House were inspired by a judge, a CEO of a corporation, a college professor, or a housewife, they could legally choose that individual to be Speaker of the House. However, the position almost always goes to a representative who is a member of the majority party in the House.
Impeachment
Finally, section 2 of Article 1 states that the House of Representatives is the sole holder of the power to impeach public officials of the U.S. government. Obviously, a transgression would have to be fairly substantial to prompt initiation of impeachment proceedings. Such violations of the public trust might include treason, bribery, and other acts that are illegal or generally regarded as morally corrupt. In an impeachment proceeding the House acts like a prosecuting attorney, presenting the case to the Senate, which then acts as judge and jury. Unless the Senate agrees with the House on the impeachment, the accused individual cannot be forcibly removed from office.
Fortunately, impeachment proceedings are few and far between, and the bar is set so high that they are seldom mentioned in the corridors of power in Washington. Nevertheless, it is comforting to know that our Constitution contains built-in protections against dishonesty and criminal activity by government officials.
Room for Reform
Although the founders did an excellent job of defining the roles of all the branches of government, including the House of Representatives, today this congressional body has great difficulty getting things done. The repeated gerrymandering of voting districts has resulted in a situation where the vast majority of congressional seats are “safe.” The district lines have been drawn in such a way that the majority of the voting population in each district belongs to a single party. As a result, extreme candidates from both parties tend to win elections. They have a hard time compromising on issues that affect the entire population, contributing to congressional gridlock. In order to preserve our freedom, it may be necessary to resolve these problems by amending the Constitution to enact term limits and eliminate the practice of gerrymandering.
THE SENATE
Section 3 of Article 1 sets up the rules of the Senate. By allocating each state two senators, the founders equalized the power of small and large states to a significant degree. Every state, regardless of its size, would have two senatorial representatives to protect its interests. A coalition of small states would be a powerful opponent of legislation that would benefit only large states and put small states at a disadvantage.
Election Procedure
As the Constitution originally designed the Senate, senators were elected by state legislatures. The Seventeenth Amendment, enacted in 1913, changed that arrangement and mandated direct election of United States senators. Without question, states through their legislatures were more powerful under the old system, but corruption and manipulation were also easier. Many felt that direct election was a more democratic process than allowing state legislators to send their chosen representatives to the Senate.
Eligibility
Unlike representatives, who are elected every two years, senators are elected every six. But rather than having all senators up for election at the same time, the Constitution staggers senators’ elections so that one third of Senate seats are open for election every two years. Because the other two thirds of the senators remain, a sense of institutional memory and stability is provided. The frequent elections keep the senators close to the voters, but the staggering means that the business of the Senate does not have to restart every two years.
The standards for senators are a little bit higher than those for representatives: “No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.” Senators must have at least five years’ more life experience than representatives. Since they each have more power and serve longer, it makes sense that the senators are screened more rigorously. Currently the majority of people entering the Senate have already experienced success in some other career and have a good sense of how things work in the business, social, and international arenas. Whether they possess wisdom is another matter. It is up to the voters to determine whether candidates for the Senate have both sufficient knowledge and integrity to represent them well.
Leadership
The only duty assigned to the vice president of the United States by the Constitution is that of president of the Senate. The vice president learns about all the bills and laws that are being considered and is aware of all official governmental personnel appointments and nominations for congressional approval. The vice president also hears about treaties with other nations and war efforts. When there is a vote in the Senat
e, the vice president does not cast a vote unless there is a tie, in which case he or she casts the deciding vote.
If for some reason the vice president is not available, senatorial business can still be carried out, with the Senate’s president pro tempore (temporary president) acting in place of the vice president. As a long-standing tradition, the most senior senator in the majority party has generally been elected president pro tem.
Impeachment
While the House can initiate impeachment trials, only the Senate has the power to try and convict in those trials. Unless two thirds of the senators vote for conviction, the accused party is counted innocent. The founders did not want impeachment of the president to be an easy thing, because they fully recognized that partisan politics would likely come into play and the desire for revenge would virtually bring the government to a halt every few years.
The most recent high-profile impeachment trial in the United States involved President William Jefferson Clinton, who was charged with perjury and obstruction of justice in cases involving alleged infidelity with two different women. The House voted to impeach President Clinton almost strictly along party lines, but the requirement of a two-thirds vote by the Senate was a high bar and was not met. The wisdom of the Constitution kept a politically motivated charge from being upheld.
A More Perfect Union: What We the People Can Do to Reclaim Our Constitutional Liberties Page 9
