The Constitution Establishes the Basis for “Rule of Law”

The Founders wrote the Constitution for the benefit of the nation’s citizens as the Founders understood their character.  They also had in mind appealing to foreigners who would want to come here and be part of this nation for those same reasons.  The U.S. Constitution establishes bare bones requirements for government services at the federal level and leaves all other requirements to the States. What are required national services?  The Constitution enumerates them, as for example:  To regulate weights and measures, coin money and regulate its value, establish uniform naturalization and bankruptcy laws, and more.  The entire enumeration takes no greater space than this one-page essay.  There are also a few prohibitions of power upon the States, such as: NOT to conduct foreign policy, levy tariffs on foreign or interstate commerce, declare war and a few more.  Nothing is missing because the Tenth Amendment provides that powers not delegated by the Constitution to the United States nor prohibited by it to the States, are reserved to the States or to the people.  We can conclude with certainty that the Constitution contains all value-choices belonging to either the federal government or to the States. All new power to Congress must come only by Amendment!

The rule of law at the federal level of government is established by legislation or changed by the Judiciary.  The Constitution vests all legislative power in Congress, but that power is limited by the Constitution.  From time-to-time Congress exceeds the limits.  The Founders expected checks and balances of the federal structure would constrain Congress by two sources.  Competition for power among ambitious people within the Congress, Presidency and Federal Judiciary are expected as one type of check.  A second results from four separate constituencies or institutions authorized to initiate overturning unnecessary or unconstitutional laws of Congress. The President has veto power to kill a law before it becomes effective.  Thereafter, citizens (including corporate persons), States (including their municipalities), and agencies of the Executive Branch have standing to sue the government in federal court if they can show harm from an unconstitutional law.  The federal judiciary then convenes a trial to determine whether or not Congress has exceeded its legislative powers.  From the time the Constitution was ratified to the end of the Civil War, the Constitutionality of federal law has seldom been challenged in federal Courts, and seldom have plaintiffs won.  Most effective in stopping legislation have been presidential vetos, which tended to inform Congress their actions were out-of-bounds, and should cease.  

Two types of Legislative powers are given by the Constitution to Congress; limited and general.  Limited powers are explicitly defined in Article I, Section 8, Clauses 2 through 18.  Furthermore, these enumerated powers are limited by the Tenth Amendment from being expanded.  That amendment states: “All powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”  A single general power is provided in Article I, Section 8, Clause 1.  That clause gives Congress power: “To pay the Debts and provide for the common Defence (sic) and general Welfare of the United States.”  The Tenth Amendment does not apply to Clause 1. 

In the history of the United States very small percentages of federal laws have been invalidated by courts.  That does not mean laws have become more stable; the opposite has become true. The words of laws – including the Constitution — have meanings at the moment they were passed or ratified.  Some of the more important words have obtained a new life by clever politicians and law professors, capable of twisting the Constitution or law to express new intentions. There are many such examples, but most egregiously the power of Congress to provide for the “general welfare” of the United States; Article I, Section 8, Clause 1 has been compromised at great cost to liberty.  The word “general” applying to welfare means:  welfare widespread, affecting or concerning all or most of the people”. The clause requires the scope of  welfare to be for the United States (in its entirety).  The clause is self-limiting, if that construction be maintained.  It is not for just some States, but all at once. The breakdown occurs when Federal Courts conduct trials in which absurdly reasoned interpretations of the correct meaning of “general welfare” are presented.  There are two separate essays following.  First, is one that affirms what the Founders would have expected; a bad law was declared unconstitutional.  In the second case, Congress passed a law by a means the anti-federalists feared most for the future of Constitutional government.  The law expressed unlawful Constitutional values, but the Supreme Court declared it as valid law.  The remarkable thing about both cases is they were decided within five months of each other by the exact same justices in each instance.  Politics made the difference.                                                                                              October 10, 2020