All Lawmaking Power Belongs to Congress
If there were one principle the Founders wanted to make clearly understood in their new system of government it was that the power to make law would no longer belong to a king or dictator or a group of government workers, but would actually belong to those whom the people themselves have elected to office for that very purpose. They also made clear that once the people assign this power to the elected officials, those elected officials could not delegate such power to anyone, especially to those who were unelected. It remained with the elected officials until the people took it back.
As if to emphasize this point, the Founders made this the subject of the very first sentence in Article One of the Constitution, which says:
"All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." (Article. I, Section 1, Clause 1)
As with nearly every other provision of the Constitution written by "We, the people", this provision affirms a particular right of the people. It announces to the whole world that the American people do not consider themselves subject to any dictate or so-called law which has not been put through the law-making process in Congress, which is made up of the people's freely elected representatives and who have been given very specific and limited direction concerning what kind of laws they may make.
As originally conceived, the American lawmaking procedure was just about as foolproof as the Founders could make it. Their legacy to future generations included a series of highly significant guidelines for Congress. Because a number of these have been seriously eroded in our day, it might be well to briefly review their suggestions.
Federal Laws Should Be Few in Number
Madison wrote: "The powers delegated by the proposed constitution to the federal government are few and defined." It turns out that the number of assigned areas of lawmaking was about twenty. Article 1, Section 8 of the Constitution lists about twenty areas in which Congress is authorized to make law. It should be noted also that Article II specifies the president may function in only six areas of responsibility and Article III limits the jurisdiction of the federal courts to eleven kinds of cases. Americans would do well to remember these numbers, 20-6-11. Those are "few and defined" powers.
Jefferson followed this policy when he was President. On one occasion he wrote: "The path we have to pursue is so quiet that we have nothing scarcely to propose [to Congress]. A noiseless course, not meddling with the affairs of others, unattractive of notice, is a mark that society is going on in happiness."
Imagine Congress convening in Washington and the President telling them that he doesn't know of a single new law needed to make the system run more smoothly. The Founders appear to have subscribed to the motto: "If it works, don't fix it." Unfortunately, today many governmental agencies feel that they must continually propose a long agenda of new laws in order to give some reason to justify their existence.
Each Law Should Be Written in Simple, Non-Technical Language
Even though Jefferson was himself a lawyer, he knew that the common people must be able to clearly understand the law they were required to live by. Said he:
"Laws are made for men of ordinary understanding, and should therefore be construed by the ordinary rules of common sense. Their meaning is not to be sought for in metaphysical subtleties which make anything mean everything or nothing, at pleasure."
Jefferson roasted the British Parliament for writing acts that were "tautologous, involved, and parenthetical jargon." He called their statutes "barbarous, uncouth, and unintelligible."
The House to Scrutinize Proposed Laws as the Representatives of the People
One can hardly imagine a Congressman going to Washington today with the express idea of protecting the rights of the people and keeping the power-hungry arm of the federal government within its Constitutionally dictated confines. Yet that is precisely the role of a Congressman. Oliver Wolcott of Connecticut stated:
"The Representatives are to be elected by the people at large. They will therefore be the guardians of the rights of the great body of the citizens. So well guarded is this Constitution throughout, that it seems impossible that the rights either of the states or of the people should be destroyed."
The Senate to Scrutinize New Laws as the Representatives of the States
Originally , U. S. Senators were elected by state legislators with the express purpose to preserve states' rights and to protect the states from the power-seeking tentacles of the federal government. As Charles C. Pinckney of South Carolina said:
"The Senate will be elected by the state legislatures, and represent the states in their political capacity; and thus each branch [the House and the Senate] will form a proper and independent check on the other, and the legislative power will be advantageously balanced."
Unfortunately, this balance was lost with the passage of the Seventeenth Amendment in 1913 in which the states gave away this powerful trump card.
The President Scrutinizes New Laws from a National Viewpoint
The Founders' lawmaking process included the presenting of proposed laws to the President for his approval. Here was a chief executive who not only is elected from throughout the entire nation but will have to enforce any future law. Notice, also, that the President was given the power only to veto a law, not to make a law. He could only attempt to negate what Congress does. James Wilson of Pennsylvania said:
"He will, under this Constitution, be placed in office as the President of the whole Union, and will be chosen in such a manner that he may be justly styled the man of the people. Being elected by the different parts of the United States, he will consider himself as not particularly interested for any one of them, but will watch over the whole with paternal care and affection.... I consider it as a very important advantage, that such a man must have every law presented to him, before it can become binding on the United States."
The Courts Must Scrutinize New Laws in Terms of the Constitution
If the validity of a law is challenged, then it is to be scrutinized by the federal courts to make certain that it conforms with the requirements of the Constitution. As is the case with the executive branch, so also the judicial branch has only negative powers concerning any law passed by Congress. This was to be done using the Constitution and the original intent of the Founders as fundamental guides in their decisions. The courts are not authorized to make new law. Alexander Hamilton summarized the view of the Founders:
"The courts were designed to be an intermediate body between the people and the legislature in order, among other things, to keep the latter within the limits assigned to their authority. 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 as well as the meaning of any particular act proceeding from the legislative body."
With so much good advice concerning the lawmaking process, it was no doubt expected that the procedure as set up would remain strictly within its prescribed limits, particularly in view of the statement in Article I, Section 1, that all lawmaking authority would be vested exclusively in the Congress. However, as Dr. Skousen explains that is not what happened.
Shattering the Jurisdictional Chains of the Constitution
The Constitution was designed to make the states sovereign in their realm of responsibility and the federal government sovereign in its realm. The big question was whether or not they might encroach on each other. It is interesting that almost from the earliest years of the nation's existence as a republic, the three branches of the federal government strained at the chains of the Constitution in their endeavor to invade the territory of state jurisdiction. Sometimes this occurred through gradual usurpation as the Congress passed laws which preempted state functions. At other times it has been a question of the executive branch using a modest enabling act of Congress to absorb a massive amount of administrative authority over the states. Finally, there has been the tendency of the courts to favor this federal encroachment on the states by all three branches of government.
Therefore, in spite of the clear and precise declaration in Article I, Section 1, that Congress shall have the exclusive power to make all federal laws, and that those laws would pertain only to the powers enumerated in the Constitution, some strange messages began to be heard coming out of Washington.
Message from Modern Washington Planners: "If you don't, we will."
Perhaps it was inevitable that Washington would develop a paternalistic attitude toward the states. No doubt that is why the structure of the Constitution was designed to keep them separated. Nevertheless, a neat little gimmick was conjured up by federal planners which targeted the states with various programs and attached a message: "If you don't, we will." Thus, if federal monitors perceived a problem among the states which was not being handled to their satisfaction, there was an open declaration that if the states did not take care of the matter, the federal government -- even though it had no Constitutional authority to do so -- would feel compelled to take action.
All kinds of federal money began to be appropriated with federal regulations to go with it, because the states were not complying with "federal standards." These regulations were declared by the Supreme Court to be just as valid on the people as if they were made in Congress, a gross and direct violation of Article I, Section 1, of the U. S. Constitution. Before long the states could say to Washington what the Declaration of Independence had said to George III: "He has erected a multitude of new offices, and sent hither swarms of officers to harass our people, and eat out their substance."
These programs included everything from safety belts and speed limits to land reform, environmental programs, reapportionment of state legislatures, city beautification, central city planning, safety and health regulations, physical facilities for education, hospitalization, day-care centers, nursing homes, local charities, unemployment, job training, and so forth.
The singular part about all of this is the fact that some of these welfare programs and social goals were for the most part wholesome and desirable, but the Founders had said a federal delivery system for these purposes would be wrong. In fact, it turned out to be the most expensive delivery system in the world. It has been operating from the wrong level of government. Once in place, however, it became a gigantic task for anyone to return it to its proper level. (See The Making of America, pages 250-257)
A Simple Principle to Teach
I have found this principle of lawmaking only in Congress to be a powerful and yet simple principle to teach. Many Americans have a difficult time pinpointing some of the roots causes of our problems and, in turn, teaching them to others. Let us remember the very first line in the Constitution. It is powerful and packed with meaning. It is something we can all teach as we work to restore our most precious document of freedom.
Earl Taylor, Jr.