iSoul In the beginning is reality

Tag Archives: Constitution

U.S. Constitution or constitutions in general

Positive vs. negative authority

In constitutional republics the founding documents provide the positive basis for political authority. In the U.S. the Constitution delineates the authority of the executive, legislative, and judicial branches of government. Thus the President could do only what he (so far only he) is authorized by the Constitution to do: act as Commander in Chief of the armed forces, negotiate treaties “by and with the Advice and Consent of the Senate”, veto legislation, etc. Similarly, the judicial branch with its apex in the Supreme Court is authorized to hear actual cases and controversies only.

The Constitution incorporates “checks and balances” so that if a branch of government exceeded their authority, the other branches of government could stop them. The greatest authority is vested in the legislative branch, the Congress, but the process of passing bills is purposively challenging to prevent excessive use of that authority.

Thus stood the Republic for over two centuries. Now however that is ending. Congress is consistently divided on basic issues and members are reluctant to take a strong stand on any controversial matter. So Congressional inaction is the order of the day. The judicial and executive branches increasingly fill the gap and exceed their positive authority.

What we are seeing is that the executive and judicial branches can do anything that they can get away with. They are appropriating to themselves a negative authority: an authority that extends as far as the limits to what they can be prevented from doing.

The judicial branch “legislates from the bench” and invents rights out of thin air. The executive branch produces directives and regulations that are not based on authorizing legislation. The President wages war without the consent of the Senate and negotiates “agreements” instead of treaties so that the consent of the Senate is not needed; if the Congress cannot stop the President, the agreement is put into effect.

The Constitution is not working. The American people are deeply divided. A tyranny is developing and is even now here. It is a dark time. God help us.

Authorizing legislation

Congress passes a bill to authorize a government program and expenditure of funds before passing an appropriations bill to approve the expenditure of funds. Authorization bills cover multiple years (such as 3 or 6) whereas appropriations are usually annual. Some programs such as so-called entitlements do not follow this process.

One advantage of periodic authorizations is that they allow Congress to make changes to programs. While they can always do so, the difficulty in passing legislation makes it unlikely to happen unless a bill must be passed because an authorization is about to expire. I wrote about a similar situation with the difficulty of repealing legislation here.

I suggest a Constitutional amendment to require authorization bills at least every 12 years. This would ensure that Congress revisits every program at least that often. Without this requirement it is difficult to end programs that no longer are needed; they continue because the process of repealing them is too difficult. But if an authorization expires, there is nothing for Congress to do but to let it expire.

Repealing legislation

The Founders did “better than they knew” when writing the U.S. Constitution. They wisely separated the legislative, executive, and judicial powers. They also wisely made the legislature bicameral with an executive veto to make new laws difficult to enact. However, now that many, many laws have been passed, we can see that the difficulty in enacting legislation makes it difficult to repeal legislation, too.

A case in point is the Affordable Care Act (ACA), officially the Patient Protection and Affordable Care Act, commonly called Obamacare. This was passed by a thin margin in March 2010 and immediately became an issue in the 2010 Congressional elections. In November the electorate spoke and many Representatives lost their seats. In January 2011 the newly-elected House of Representatives voted to repeal the ACA. However, the Senate did not agree and the President would have vetoed it anyway.

But the fact remains that after the electorate changed the make-up of Congress, the ACA would not have been enacted. In short, the electorate was denied the opportunity to repeal a law once enacted. Why? Because a repeal of a law is treated as a law and laws are difficult to enact. One result of this is that laws accumulate on the books and are modified but rarely repealed.

The solution to this is to make repeal of a law less difficult than enacting a law in the first place. This is consistent with making new laws difficult to enact, so the status quo is privileged over change without a consensus for change. However, a law enacted years ago may have led to many things that would be impossible to undo so there should be a limit to how long a law may be repealed without passing a new law.

A simple amendment would be to allow either chamber of Congress to repeal a law by majority vote within two years of its enactment. That would allow one Congressional election cycle for the electorate to speak. New laws would effectively have a two-year probationary period, something that is often done in other situations such as new employment.

The order of life, liberty, and property

The first and second article of the Virginia Declaration of Rights, which was written by George Mason and adopted unanimously by the Virginia Convention of Delegates on June 12, 1776, states:

That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.

The (U.S.) Declaration of Independence, which was primarily drafted by Thomas Jefferson and adopted by the Second Continental Congress on July 4, 1776, states:

We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

I suspect that the omission of “property” from the Declaration was to avoid the potential for this revolutionary document to be challenged as an attempt to abrogate British property rights.  In any case, the rights to “life, liberty and property” are asserted in the Declaration of Colonial Rights, a resolution of the First Continental Congress.  The Fifth and Fourteenth Amendments to the U.S. Constitution declare that governments cannot deprive any person of “life, liberty or property” without due process of law.

The U.S. Civil War can be understood as a conflict over the rights of liberty vs. property.  Slaves were chattel property and their right to liberty was not acknowledged until the war was decided.  The right to liberty trumps the right to property if there is a conflict.

The continuing clash over abortion can be understood as a conflict between the right to liberty and the right to life.  It is greatly to be hoped that the right to life will prevail as liberty means little if a life can be taken without due process of law.

In short, the rights to life, liberty, and property should be acknowledged in that order with life taking precedence over liberty and liberty taking precedence over property.

January 2011