Art 1 Sec 1 – The Separation of Powers
“Ultimately, both enforcement devices, constitutional oaths and constitutional popularity, presupposed that the Constitution spoke not merely to federal judges, but rather to all branches and ultimately to the people themselves.”
In considering the intention of the Framers with regard to the ToTaL separation of powers, it is easy to presume the doctrine of Judicial Review controls the process of determining any particular laws constitutionality. The argument of Marbury v Madison in 1803 essentially established the doctrine. As we have seen recently in California in the attempted ban on video games and even Prop 8, Judicial Review has become the established manner of ultimately deciding a laws standing under the Constitution.
But let us consider the truest meaning of “Separation of Powers.”
Each and every elected official (in California for certain, but certainly any Federal Official) takes an oath of office in which they swear to “uphold and defend the Constitution.” Indeed I took the same sort of oath upon enlistment in the US Navy on May 28, 1981. Every veteran and active duty service person has as well. As I have said on many occasions, on May 28, 1981, I have come to realize that I had no real idea of what that meant.
Even today, as I watch City Councilpersons, Sheriffs, Board of Sheep Members, State Legislators and Executives, on up the ladder to Washington, D.C., I wonder how many of them have carefully considered the words of their oaths? How many have contemplated the power in their own hands, that was intentionally placed there to protect the separation of power and to personally help decide the Constitutionality of any given law?
Before Marbury v Madison, there came the Alien & Sedition Act of 1798. In a very long and complicated story, the Federalist Congress and President rammed through Congress and into courts filled with Federalist appointed Judges a bill which made it illegal and punishable by imprisonment to critique the Government or be involved in certain activities declared to be seditious. Two States, Virginia and Kentucky, objected with resolutions declaring the Acts “Unconstitutional” and stating that they would not enforce them.
Oddly enough, the rest of the States were unsympathetic. In fact, New Hampshire accused the two of “fomenting revolution.” In most cases, the States simply shrugged and went along with the idea that if the Judges had said it was fine, it must be fine.
In 1798, every elected official took the same oath to uphold and defend the Constitution. A majority of Congressmen felt that the Alien & Sedition Act WAS Constitutional and thus voted for it. The President also agreed in his interpretation that is was, and thus signed it. The Justices of the Courts also felt that it was Constitutional and thus began to enforce it and instructed the juries to follow it. Two States objected and for a while it appeared that the same chaos which had engulfed France and had led to the Aliens coming to America with their inflammatory ideals and rhetoric in the first place would soon begin to burn in the new nation.
And then, an amazing thing happened.
Just as Madison had argued in the Federalist Papers, the two year election cycle of Congressmen meant that the People would have a direct influence and say in the overall direction of the lawmaking. And in 1800, the People threw the Federalists – and their Alien & Sedition Act – out of Congress and the White House.
The Alien & Sedition Act faded into history, replaced in three years by the Marbury v Madison ruling which once and for all established the Judicial review doctrine, which would seem on the surface to have bypassed the People’s review authority.
Until one looks at the elections of 2010. One would be hard pressed to claim that the 112th Congress had “learned” the lesson of the 7th Congress (elected in 1800). That Congress allowed the Alien & Sedition Act to be relegated to the trash heap, albeit with some further controversy. The predominant issue of the elections of 2010 was the passage of the Affordable Care Act (otherwise known as “Obamacare”).
After a passionate summer of town hall meetings and debate, the law scraped by in the House, with many so-called “Blue Dog’ Moderate Democrats providing the margin of passage. And in the election of 2010 virtually all of them were thrown out of office, presumably for their support of the bill. The people had once again spoken.
This time, however, the mechanisms were in place to insure that while the People had made their opinions known, the overall will of the Congress and Executive would stand against that expression of will.
So let us for a moment, consider what might have been.
The oath of office was designed to promote an emotional understanding – a sense of personal honor, if you will, that if any given individual in the chain felt that a bill was unconstitutional, he had a DUTY to oppose it and to not support it in the manner which his or her branches designated power allowed them to do so.
A Congressperson could, for example, oppose the bill, using the rules of the House to slow or stop the bill’s passage.
The President has a duty to decide whether he believes the bill to be Constitutional, and if he believes it to be not so, to Veto the bill.
Judges have a duty to examine the bill and determine if they believe personally it is Constitutional. If it is, they are sworn to uphold it. If not, they can void the law.
The Grand Jury can refuse to indict a person accused under a law that its members believe to be unconstitutional. A trial jury can acquit a defendant charged under a law which its members believe to be unconstitutional. And any given voter can choose not to vote for any official who supported such a law, signed it, or enforced it.
The separation of powers extends far beyond the “three branches of government. It is actually in the hands of each and every one of our citizens.
Granted, there are now, as I pointed out, mechanisms in place to prevent the will or the people – as expressed via elections – moot or at least muted. But I love the fact that the Jury system remains in our hands.
Ultimately it may be the source of the remaining power of We the People…
Subaquaneam Secundum Quid – Tuebor Nos Populi
 After vehement protests against the Act, and campaigning against it, the Jeffersonian Democrat-Republicans then tried to turn around and use it against their Federalist opponents. It didn’t work, but it did prove early on that politicians of all stripes are basically hypocrites and willing to do anything to (a) get elected and (b) punish their opponents.
 Oddly enough, not mine (at the time). Congressman Dennis “Horse” Cardoza beat his opponent with ease, mainly because a local radio chat show host despised his GOP opponent whom he had caught lying to him. After winning re-election with a substantial GOP vote in the district, Congressman “Horse” Cardoza then quit after complaining that the same chat show host was too focused on his racing horses and discovering that he could make even more money (to buy more racehorses?) by becoming a K Street Lobbyist. Later the district lines were redrawn and the area was absorbed into two other districts.
Posted on January 30, 2013, in Art 1 Sect 1, Article 1, Constitution, Dave, Legislative Vesting Clause and tagged Article 1, Commentary, Constitution, Constitution Thursday, jury, oath of office, Separation of powers. Bookmark the permalink. 2 Comments.