Art 1 Sec 1 – The Separation of Powers

Some Final Thoughts[1] on 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.”[2]

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[3].  The predominant issue of the elections of 2010 was the passage of the Affordable Care Act (otherwise known as “Obamacare”[4]).

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[5], 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.

A Senator who finds the bill unconstitutional has a duty to use the rules of the Senate to oppose and possibly stop the bill.[6]

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.

But it was never intended to end there. As Virginia and Kentucky[7] remind us today, there are more steps in the process.

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


[1] Under the banner of the Article 1 Sec 1 Discussion at any rate

[2] America’s Constitution – A Biography, Akhil Reed Amar, pg 63

[3] 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.

[4] He “loves that name!”

[5] 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.

[6] Usually via the filibuster, but who knows these days?
[7] Interestingly enough, at the time of the Alien & Sedition Act, the oldest and newest States/Colonies
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Posted on January 30, 2013, in Art 1 Sect 1, Article 1, Constitution, Dave, Legislative Vesting Clause and tagged , , , , , , . Bookmark the permalink. 2 Comments.

  1. A follow up to the discussion of the Sedition Act is this posting from the Volokh Daily:

    http://www.volokh.com/2013/01/30/the-sedition-act-and-the-first-amendment/

    The Sedition Act and the First Amendment
    Eugene Volokh • January 30, 2013 2:01 pm

    A commenter writes — apparently arguing in favor of the view that the First Amendment was originally understood as providing only narrow protection — that “The same [Congress] that [passed the First Amendment] passed the sedition act.”

    This turns out not to be so in any useful way (other than the obvious point that the same legal body, the Congress, sent the Bill of Rights to the states and then, nine years later, enacted the Sedition Act). To quote an interesting statistic from David A. Anderson, The Origins of the Press Clause, 30 UCLA L. Rev. 455 (1983):

    Of the ninety-five senators and representatives who served in the First Congress, only eighteen remained when the Sedition Act was enacted in July 1798, and of those only ten voted “aye” [with four voting “nay” and four not voting].

    The debates about the Sedition Act do show, I think, that there was much unsettled about what “the freedom of speech” and “the freedom … of the press” meant during that era. As with many ideas, people may have broadly endorsed the abstraction but had very different views of what that abstraction actually meant. But whatever one might say about those debates, one should not assume that those who voted for the Sedition Act in 1798 — or those who voted against it, the vote being 18-6 in the Senate and 44-41 in the House — were the same people as those who voted for the First Amendment in 1789.

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  2. Washington Times – Feb 1, 2013

    KING: The Constitution always trumps politics
    No Budget. No Pay. And no kidding

    Everyone who takes an oath of office, whether it be for Congress, the judicial branch or the presidency, vows to “preserve, protect and defend the Constitution.” Because of this oath, the American people rightfully expect their public officials to do their job. In Congress, that includes passing a budget.

    Members of the House of Representatives recently cast their votes for the No Budget, No Pay Act. Although I supported the concept behind the No Budget, No Pay bill, the 27th Amendment to our Constitution specifically says, “No law, varying the compensation for the services of the Senators and Representatives, shall take effect” until after an intervening election. The language is clear and unambiguous. All members take their own oath of fidelity to the Constitution, and I respect the view of my colleagues who disagree. However, the No Budget, No Pay Act does not meet constitutional standards. Therefore, my only choice was to vote no.

    The Constitution is the supreme law of the land, and I consider it a high responsibility to uphold its principles and preserve the contractual obligation. As Supreme Court Justice Antonin Scalia has said regarding the importance of the Constitution and the law, “The judge who always likes the results he reaches is a bad judge.” Similarly, the representative who disregards the plain meaning and language of the Constitution, when inconvenient, to pass legislation he favors is not being faithful to his oath.

    President Obama taught constitutional law, yet he has the most fundamental and straightforward process of federal lawmaking backward. Congress is to make the laws, and the executive branch carries them out, not the other way around. Last year, Mr. Obama said, “This is my last election, and after my election, I have more flexibility.” He didn’t realize his microphone was on, but his message rang loud and clear. He unveiled his vision for his second term during his inaugural address last week.

    The president believes that during his first term he was unable to follow through on his agenda, but his constitutional abuses show otherwise. Mr. Obama has violated the rule of law and his oath repeatedly when it was inconvenient for him to work for a constitutional legislative solution.

    By implementing the Dream Act via executive fiat, actually legislating by press conference, Mr. Obama usurped the specific constitutional authority of Congress to craft the nation’s immigration laws. There was no ambiguity in Congress about whether the Dream Act’s amnesty program should be the law of the land, because it has been rejected by Congress several times, yet Mr. Obama issued an executive fiat creating immigration law out of thin air.

    Mr. Obama’s executive elimination of all work requirements of “welfare to work” violated the 1996 welfare reform work legislation, which was signed by President Clinton. Mr. Obama violated the Constitution by waiving provisions that the law specifically stated could not be waived by the president.

    Similarly, the rule published by Health and Human Services Secretary Kathleen Sebelius directing even religious institutional health care providers to offer abortifacients, sterilizations and contraceptives free of charge was unprecedented. This violated the religious convictions of the Catholic Church as well as many other religious institutions. After getting heat from religious organizations, Mr. Obama held a press conference where he announced an “accommodation” for religious organizations and a requirement for insurance companies to provide the very same products “for free.” Again, the president legislated by press conference and presidential edict.

    More recently, the courts have been forced to step in to address the Obama administration’s overreach. Mr. Obama, by attempting to use his recess appointment power to appoint members to the National Labor Relations Board while the Senate was not in recess, clearly violated his constitutional powers as president — and the U.S. Court of Appeals for the District of Columbia Circuit unanimously told him so. The appointments violated the Constitution and resulted in unnecessary uncertainty for job creators who are bound by the law and the Constitution.

    Unconstitutional violations of the separation of powers, rooted in Mr. Obama’s lawless approach to federal policymaking, are exactly the reason the framers of our Constitution designed a three-branch government. James Madison warned in the Federalist Papers that power is “of an encroaching nature,” and that the three branches of government need “practical security for each, against the invasion of the others.” I carefully consider each vote I cast, even when political repercussions are at stake, because it is essential to our posterity that we all “preserve, protect, and defend” the Constitution. The supreme law of the land, our Constitution, towers over our Founding Fathers. It surely must tower over our current president.
    Rep. Steve King is an Iowa Republican.

    Read more: http://www.washingtontimes.com/news/2013/feb/1/the-constitution-always-trumps-politics/#ixzz2JkeE6kq3
    Follow us: @washtimes on Twitter

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