The Green Papers Commentary
 

THE POWERS THAT (MAY) BE
An admittedly cursory examination of
what is really behind that which Americans
usually go on about politically

Thursday, May 5, 2011

by Richard E. Berg-Andersson
TheGreenPapers.com Staff

As I now type this, the 2012 Presidential Election is just about a year and a half away: right now, this future event seems at least the better part of a lifetime away; immediately after it is held, however, the time during which I am now writing this piece will seem to have been but yesterday!

In any event, I thought it would be interesting to now take a quick look at at least some of the things ever lurking in the background of an (indeed, any) American election- particularly a national one, which the election of someone to Our Nation's Highest Office always is (after all, the President and Vice-President of the United States are the only elected officers in America chosen on a nationwide basis, even given the fact that the voters are- whether they realize it or not- really "appointing" their own State's [or District of Columbia's] Presidential Electors and not choosing the President and Vice-President directly). This Commentary, then, is my own attempt to do just that!


Americans have been influenced far more by practical considerations and have shaped their policies to meet actual conditions, rather than to correspond with a priori deductions of political doctrine. Impractical ideals have seldom received wide acceptance in America, nor have Americans been particularly concerned with logical inconsistency in their political principles... Conditions have been met as the need arose; and political theory has usually been able to adjust itself to changing conditions without serious intellectual discomfort, and to state its principles to justify the accomplished fact.--
Raymond G. GETTELL from HISTORY OF AMERICAN POLITICAL THOUGHT [1928]

There is a dirty little- yet, at the same time, altogether open- secret about the modern American electorate at any given time and that is that, in the main, the average American cares little, if anything, for the nuances and details of political and/or constitutional theory. In this way, Americans are- as regards their Politics- no different than as regards their Religion: just as the average worship service-attending American cares little, at least for the most part, about the more obtuse, where not also arcane, aspects of the theology of their own religion- or branch, denomination or sect thereof (within most religious congregations in the United States, the "true believers" are generally outnumbered by the rest of those who might, however theoretically, show up inside the building), the average American most likely to vote in an election cares rather little about how or why their particular political views might, or might not, well dovetail with Constitutional Law and/or Jurisprudence.

Simply put- when it comes to most of the issues of the day (including even the more controversial ones)- most Americans instinctively "know" (or, at least, think they know!) how things are- or are not- supposed to be and then, only "when push might come to shove" at some point later on, seek out a political theory or constitutional justification that might well explain- where not also defend- their own political position. All the date attached to the quotation that heads this section tells the reader is that, contrary to much popular belief here in today's United States of America, this is nothing at all really new (no, dear reader who might be the quintessential political "true believer", "compartmentalization" of one's personal political ideas and ideals did not begin with the 60's Counterculture or, back in the 1930s, FDR's New Deal or the concomitant social dislocation brought about by the Great Depression)-- indeed, such things are just about as old as- if not even older than- the American Republic itself!

This notion that, in the United States, one's own personal political position far more usually precedes its justification via principle tends to drive the "true believers"- whether conservative or liberal, or even further Left or Right- nuts... yet, at the same time, this same notion is what makes each and every major American General Election every two years in November of even-numbered years (that is: the Federal elections with which most State and many local elections are also scheduled) ever interesting: for it is the "bell curve" of the American electorate in the center that, in the end, always becomes the principal arbiter of to whom goes the victory, not those "true believers" either to the left or the right of this "bell curve" come Election Day. It must ever be remembered that a large and significant number of voters who voted for Ronald Reagan twice also voted for Bill Clinton twice (merely do the math based on the Popular Vote election statistics from 1980 and 1984 plus 1992 and 1996 adjusted for the intervening Birth [of those who would turn 18 between 1980 and 1996] and Death [of those who might have voted earlier in this period but were not around to do so towards its end] rates); had most, if not all, of the "bell curve" of voters in said elections have, instead, been "true believers"- whether conservative or liberal- the seemingly contradictory results of a two-term Reagan Presidency followed, within a decade, by a two-term Clinton Administration would not have ever obtained.

Likewise, more than a fair number of those who voted twice for George W. Bush also voted for Barack Obama last time round! And this kind of thing must be kept in mind as the gentle reader might peruse the rest of this piece:

for, in truth, most Americans vote as much with their hearts as with their heads.


The division of functions [in a Federal State] between the common government of the whole and the separate governments of the parts necessarily varies. The general idea is that the federation is to be a whole for external relations while each part is more or less independent in internal affairs. But this principle does not settle how matters external to the parts but internal to the whole are to be determined... and some matters prima facie internal to the parts may expediently be left to the government of the whole, on account of the mischief or inconvenience that would be caused by want of uniformity.--
Henry SIDGWICK from THE DEVELOPMENT OF EUROPEAN POLITY [1903]: Lecture on MODERN FEDERALISM

Despite the title of Mr. Sidgwick's work, the above-quoted definition of Federalism is as applicable on this side of the Atlantic as it might well be on the opposite side of that great ocean: indeed, it cannot help but be, considering that the United States of America was- as it yet remains- the first successful Federal Republic of scale in Human History. But it must be here noted that, on either side of the Atlantic- or, for that matter, the Pacific (as well as along the Indian Ocean: after all, India is the most populous democratic Federation on the globe)- the essential, as well as more common, political issue within Federalism is the relationship of the general government to its constituent regions (whether called Provinces, as in Canada, or States, as here in the United States) and vice versa: the very problem generally placed- at least here in the USofA- under the rubric of State's Rights (as technically incorrect as such rubric might actually be: after all, only persons have Rights; governments- at whatever level- have, instead, Powers) and the vastest majority of the pitched political battles over said relationship involve just how much- if at all!- "matters prima facie internal to the parts may expediently be left to the government of the whole".

In a Unitary state (the condition of most of the independent Nations in the World today), the answer is far more easily discerned: for here the general, central government is the sole governmental Sovereignty and any and all powers exercised by administrative subdivisions (and/or sub-subdivisions, etc.) of the Unitary state are merely "devolved" upon said subdivisions, at least theoretically removable from their legal purview at any time- as well as for any reason- by the central government (unless there be, enshrined in said Unitary state's Constitution, legal process and/or political procedures which regulate said removal of powers otherwise so devolved). And this situation is almost always seen on at least one level even in Federal systems: for here in the United States, counties (or equivalent- such as Louisiana's Parishes), townships (in those States which have them), municipalities, school districts and other civil divisions of a constituent State of the American Union do exercise powers- but these are powers perhaps best described as local "authority" because, constitutionally speaking, all that said subdivisions of an American State are really doing are exercising that which the State itself has authorized them to do.

For example, in my own State of New Jersey, each Municipality (the principal Civil Division of the Counties in this State: Townships in New Jersey are, by law, the equivalent of incorporated municipalities carved out of said Townships over time, thus Townships and Municipalities are- for all intents and purposes- one and the same [hence, for instance, a Jury Duty notice I once got addressed to me as a resident, confusingly to those- even fellow New Jersey residents- who might unfamiliar with this whole situation, of "the Township of (my Borough) in (my County)"]) has its own Police Department (except where, in areas of sparse population, several Municipalities=Townships contract to have the State Police provide police services via what is, in essence, a joint multi-Township police force). First of all, it has to be noted that most of what said local police forces happen to be enforcing is State law (as- to here take one obvious example- the burglary of a home is a crime under the State penal code, not merely a violation of a local ordinance or bylaw: but it will be local police who will be called once the homeowner discovers he or she has been burglarized!); secondly, though- as well as more to the point- the State could, if only theoretically, abolish all local police forces and simply divide each of its counties into police precincts and give an expanded State Police primary law enforcement powers over said precincts. Such a thing might not sit all that well with most of the voters here in my State (one of the biggest fears ever driving continued maintenance of so-called Home Rule for my State's local units of government is that of possibly losing police protection responsible, for the most part, to the local community alone [through a local police department being directly overseen by locally elected officials]) but there would be nothing inherently unconstitutional for the State to do just that...

precisely because the State is the unitary Sovereignty here in the USofA, while the State's Civil Divisions- from its Counties on down- have no governmental Sovereignty per se. Yes, 'tis true that- in American constitutional theory- ultimate inherent Sovereignty resides in the People (in a case such as herein being discussed, of the State of the Union)-- but said People have, also in American constitutional theory, devolved their own Sovereignty upon their State governments via the vehicle of the State's own Constitution (which is the very method by which the State- as a Unitary government- has gained its own governmental Sovereignty to act on behalf of its own People in the first place!).

Put most simply: a State of the American Union could- if it so wished to do so (at the obvious peril of elected officials of the State who did so possibly no longer serving in their respective offices after the next elections for said offices, should the People themselves not be at all happy with what was being done)- police its own jurisdiction by itself because such is among that which a Unitary state is constitutionally able to do by very definition.

In a Federation, however, there are dual (perhaps one might even say competing) Sovereignties: in the United States of America, the sovereign States are joined together via an overarching Federal Government equally sovereign. Where the resultant federation is clearly acting as "a whole for external relations", there is no conflict (no State of the American Union, for example, can seriously claim that President Obama, in authorizing the recent military operation that killed Osama bin Laden, was not constitutionally acting- in his capacity as the Federal Executive- on behalf of all 50 sovereign States of the American Union "as a whole"); where the States, on the other hand, are clearly acting as "more or less independent in internal affairs", there is also no conflict (my local police department going after suspects in the burglary of a home in my town is not- in and of itself- under the direct oversight of the United States Government). However, conflict between said dual, competing Sovereignties ensues when a matter is, indeed, "external to the parts but internal to the whole"... the question then becomes: where exactly is the line between Federal and State powers to be drawn?

This is precisely the very essence of the continuing debate over Health Care Reform (especially as regards that which its detractors tend to refer to as "ObamaCare": the bill passed by the preceding, 111th, Congress of the United States, the subject of the campaign for seats in both houses of Congress in the 2010 Midterm Elections and the source of many a legal challenge, by many States of the Union, to its provisions). The U.S. Constitution specifically grants Congress Power... [t]o regulate Commerce... among the several States [Article I, Section 8, clause 3] but does this so-called 'Interstate Commerce clause' give Congress any power to regulate Health Care and concomitant Health Insurance?

Again, were the United States of America- like its own constituent States- Unitary, and not Federal, there would be no question at all that the answer would be a resounding "Yes":

For, as regards the States' relationship with its own Civil Divisions (already touched upon above), there are two key legal elements: the resolution of conflicting State/local purposes (which states that a Civil Division cannot prohibit that which the State, by law, already expressly permits nor can a Civil Division permit that which the State, by law, already expressly prohibits [heated arguments in the State legislature over whether, say, an Alcoholic Beverage Control law should read All stores in this State selling alcoholic beverages may stay open until 10 o'clock p.m. every day, excepting Sundays rather than All stores in this State selling alcoholic beverages must close no later than 10 o'clock every day, excepting Sundays usually turn on the fact that the latter language would allow a rural Township to adopt an ordinance or bylaw requiring liquor stores within its boundaries to close at, say, 6 o'clock Monday through Saturday- while the former language would not]) and, much more to the point of this particular piece, the so-called 'Pre-emption Doctrine' (which states that a Civil Division cannot act in a field of Law where the State has already "pre-empted the field" [thus, for instance: a comprehensive State Motor Vehicle Code makes certain that a County or Municipality cannot require a motorist to get a County or Municipal Motor Vehicle Operator's License (attained via the payment of additional fees, of course, as a vehicle- yes, pun intended!- through which to raise more revenue for said County or Municipality without having to raise local taxes) in addition to a driver's license already issued by the State; a State Motor Vehicle Code means that the State has already pre-empted the field of law as regards the regulation of motor vehicles as well as their operators and, thereby, local regulation on the subject is not at all permitted]).

The aforementioned Pre-emption Doctrine well answers the issue of whether "some matters prima facie internal to the parts may be expediently left to the government of the whole, on account of the mischief or inconvenience that would be caused by want of uniformity" for the purposes of a Unitary state, such as a State of the American Union. But can such a concept of 'Pre-emption' ever be made applicable to a conflict between the Federal Government and its constituent States? In other words: can the Federal Government, via "necessary and proper" [Article I, Section 8, clause 18] legislation enforcing the aforementioned Interstate Commerce clause of the Federal Constitution (which, per se, might well trump State Constitutions as "the Supreme Law of the Land" [Article VI, Section 2] in any event), at all so "pre-empt" the field of- in the present instance- Health Care/Health Insurance law?

The arguments over the correct answer to this last question will well pervade the political debate during the next campaign for the Presidency soon to come-- at its heart, it is a question about both "how matters external to the parts but internal to the whole are to be determined" and whether "mischief or inconvenience... would be caused for want of uniformity". But I am not writing all I have written in this section of this Commentary in order to at all attempt to answer this specific question...

I only write herein to well illustrate that the question actually persists, as it has ever persisted (as regards many another matter besides that related to a Federally-overseen Health Care system) and will ever persist so long as the United States Constitution, as amended, might ever continue in force!

Moreover, it is a question that- going into this 2012 Presidential Election, as it has in previous (and will in future) Presidential Elections- well drive the political debate.


[U]nder the Constitution of the United States, the powers of the Executive department, explicitly and emphatically concentrated in one person, are vastly more extensive and complicated than those of the Legislative... [but t]he President himself is no more than a representative of Public Opinion at the time of his election; and as Public Opinion is subject to great and frequent fluctuations, he must accommodate his policy to them; or the People will speedily give him a successor; or either house of Congress will effectually control his power.--
former President JOHN QUINCY ADAMS [by then a Member of Congress (Whig-Massachusetts)] in his A DISCOURSE upon THE JUBILEE OF THE CONSTITUTION [1839]

Related- however directly or indirectly- to the dual question of where to draw the line between Federal and State power which necessarily includes a notion as to when, for purposes of desirable national uniformity, the Federal Government might still prevail even where the constituent State alone is competent to act is the issue of the extent of- as well as the limitations to- the power of the President of the United States per se (for, should Federal power, indeed, trump State authority as regards a relevant constitutional issue, the principal beneficiary of such a thing will, in fact, be the Chief Executive within the Federal system of governance).

I have, in front of me as I type this very sentence, a copy of one of the many editions, in my own possession, of THE CONSTITUTION OF THE UNITED STATES OF AMERICA: Analysis and Interpretation put out, over the years, by the Superintendent of Documents in the U.S. Government Printing Office: it matters not which edition I currently peruse, by the way, because each such volume contains the complete, original [that is: 1787] text of the Federal Constitution (the Amendments to the Constitution appear in a separate section) in the style of the so-called "Session Laws" (the text of Federal statutes as garnered from the so-called "enrolled Bills" sent to the President for either his signature or veto upon a bill's passage by both houses of Congress and which form the basis of that collection known as the United States STATUTES AT LARGE which are, at least mostly, considered to be the controlling text of any such legislation) and, in addition, is the so-called "Literal Print" (in which certain nouns were originally capitalized in a manner not necessarily seen in later, more modern printings of the document: the alert reader may have noticed that I more usually quote from the Literal Print when citing a provision of the Constitution of the United States [hence my having capitalized 'Commerce' and 'State' in my rendering of the Interstate Commerce clause of that document mentioned earlier in this piece]).

The entirety of the original 1787 text of the Constitution takes up 16 pages in this format: the statements therein as to what Congress can and cannot do (that is: Sections 8 and 9 of Article I of the document) take up a little more than 2 of these pages (76 lines of text all told); but the powers and duties of the President (that is: Sections 2 and 3 of Article II of the U.S. Constitution) takes up less than a page (32 lines in toto). Thus, the basic powers of the Presidency are but 42 percent of the text necessary to delineate the powers (or lack thereof) of Congress!

Therefore, it should be most clear to the reader of this Commentary that, where ol' J.Q. Adams was referring to the powers of the Executive as being "vastly more extensive and complicated than those of the Legislative", he was not speaking in terms of the mere quantity of said powers but, rather, more the quality.

For the powers of Congress, while numerous as delineated in the Constitution, are the more easily limited: we Americans may well argue, amongst ourselves, whether Health Care and/or Health Insurance is, indeed, within the definition of Interstate Commerce but we are hemmed in, regardless of where we might stand on the issue, by the parameters engendered by the very words "Interstate" and "Commerce"... the powers of Congress may well have become stretched by political exigency over the course of American History but they are not, in the main, all that vague!

By contrast, take a look at the powers and duties of Our Nation's Chief Executive: for one, take the requirement that the President shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient [from Article II, Section 3]: but what does this really mean, let alone require? It has long become tradition that the President present an 'Annual Message' to Congress (one which has, almost as long, become known as the 'State of the Union' Message [or more commonly, once President Woodrow Wilson had revived the practice of delivering said Message in person before a Joint Session of Congress, Address])-- originally this was delivered to Congress shortly (within days, at most) after the start of each regular, annual session of Congress but, in recent years and decades, this schedule has gotten more than a little "raggedy" and, nowadays, the State of the Union Address is more likely to be delivered by the President after Congress has already been in session for some weeks!

Point is: there is no specific schedule for the President's so "giving... Information of the State of the Union" or "recommending to their Consideration... measures" within the text of the Constitution itself-- this duty, and how it is to be carried out, is- at least based upon a fair reading of the text that creates it- altogether vague and, thereby, rather broad in scope (just what subject matter might not be within the purview of "Information of the State of the Union", really?) Likewise, the President's power as Commander-in-Chief of the Army and Navy of the United States, and of the militia of the several States when called into the actual service of the United States. How far does it go? When does the President not require the approval- or at least stated agreement (via Resolution)- of Congress to send American military personnel overseas?

Questions such as these about the length and limits of the powers and duties of the Presidency, too, are the very stuff of any American Presidential Election and will, most obviously, be in play come 2012 (when Public Opinion will once more be able to impose its Will most directly upon that institution known as the American Presidency)!


[T]here is an obvious gain in separating legislative from executive and judicial functions in such a way that those who execute the law are as much bound to obey it as those on whom they execute it: and that the question whether they have obeyed it or not may always be brought before impartial judges for decision. And observe, even when Sovereignty is placed in the hands of a people- or of an assembly representing the People- this division of function is no less necessary for the security of minorities. A Supreme Assembly may be tyrannical no less than an individual: the only sense in which democratic institutions can be called "freer" than a monarchy is that under a monarchy a majority may be oppressed no less than a minority, while under a democracy it can only be a minority.--
Henry SIDGWICK from THE DEVELOPMENT OF EUROPEAN POLITY [1903]: Lecture on CONSTITUTION-MAKING OF THE 19TH CENTURY

Having said all I have said so far in this Commentary, neither Congress nor the President are permitted- in American constitutional theory- to exercise their respective powers unfettered (and the same can also be said of the legislature and Governor in each of the several States of the American Union). There are ever those famous "checks and balances"-- vertical (that inherent tension between Federal and State power within a Federation such as the United States of America, already discussed above) as well as horizontal (the relationships between the three branches of government- Legislative, Executive and Judicial)-- but the ultimate "check" on power stretched all too far is, of course, the Constitution itself (whether that of a State or the Federal, the same basic premises discussed herein generally apply).

The inherent problem, of course, is that of determining who gets to decide what the Constitution might say about how far governmental power might go?

There are, for the most part, three main strands of answers to said question that have appeared in American History-- the Hamiltonian (aka Judicial Review), the Jeffersonian (aka Legislative Supremacy) and the Madisonian (aka Constitutional Egalitarianism)... though, to be complete and most fair, I here have to note that a fourth strand, that of the Unitary or Discretionary Executive, has also reared its (at times ugly?) head from time to time but it has not seemed as important as the other strands, except at times when a rather extreme form of the doctrine (one in which the President not only wields all Executive power rather unfettered [the very core of the Unitary Executive theory] but does so without any constitutional interference from Congress or the courts [this version of the doctrine was associated with the recent Administration of George W. Bush and was publicly championed by then-Vice President Dick Cheney]) is promoted; the main problem with the Unitary/Discretionary Executive strand of final determination of constitutionality (especially in its more extreme form) is that it smacks so much of the very Tyranny-within-Executive against which Americans fought their Revolution in order to escape it (never mind the fact that, in reality, King George III of Great Britain was actually the first real constitutional monarch in Western Civilization, as regards the development of American constitutional theory, he will ever be the "tyrant" that the propagandists of the earlier portion of the War for American Independence- as well as the language of the Declaration of Independence itself- painted him as being): one of the key tasks of the Constitutional Convention of 1787 was to create a Chief Executive who would be, in essence, an "elected King" without the "tyranny" of the British Crown (as Americans of that time, rightly or wrongly, saw said Crown); a Unitary Executive who holds himself apart from- thereby, above- Congress and the Federal Judiciary is so antithetical to the main currents of American History that, while- perhaps- useful as a political tool in the short term (as in the Bush/Cheney era), it never gains a "shelf life" anywhere near as long as the other three strands.

(By the way, if only in passing, the Unitary/Discretionary Executive concept never has had all that much play on the State level in America: most State Constitutions purposely grant some Executive power to officers elected independently of the Governor- such as an elected State Attorney General or Comptroller and the like; so long as, say, an Attorney General is no less responsible to the People of the State who elected him or her as is the State's Governor, it is altogether difficult for a Governor to claim Unitary/Discretionary Executive power [in effect, the State Attorney General in such a case acts as an extra "check" on the Governor; the same could be said of any other statewide independently elected official exercising specific executive functions]. Problems on the State level regarding the Unitary Executive may, however, ensue where the Governor [with or without a Lieutenant Governor elected on the same ticket] is the only statewide elected official [for instance, as I type this, the Governor of my own State of New Jersey, Chris Christie, has recently claimed the authority to outright ignore a State Supreme Court order that he fund the State's school system more than he intends to in his own budget; he is largely able to publicly claim what, at least on the surface, appears to be a Unitary Executive position because he is the only elected State executive officer (again, here not counting my State's Lieutenant Governor because said officer is not elected independently of the Governor)-- of course, whether or not his position will ultimately pass State constitutional muster is yet to be seen.])

The Jeffersonian view (again, Legislative Supremacy) argues that the Legislative branch, as the makers of the laws (All legislative powers herein granted shall be vested in a Congress of the United States... [Article I, Section 1 of the Federal Constitution]), is the ultimate arbiter of the constitutionality of its own actions: the theory here is that, should the People not like that which the legislators are doing, they can "throw the bums out" at the next election (and, I suppose, replace them with new "bums" who will, presumably, bow to Public Opinion and reverse the course of such undesirable legislation). This is actually the constitutional theory in many a Parliamentary Democracy in which Parliament (or equivalent) is the ultimate governmental Sovereign power-- the Executive (the Premier [Prime Minister or Chancellor] and his Cabinet [Ministers]) being responsible to Parliament, removable by mere vote of No Confidence (which, if in the affirmative, forces a new Government, if not a new election!) and Parliament, or some portion thereof, exercising at least some Judicial authority (either directly or indirectly). In the United States of America, Legislative Supremacy came closest to coming to the fore during the period of Reconstruction immediately following the American Civil War when the so-called "radical Republicans" controlled Congress and brazenly attempted to make the Executive branch and the Federal Judiciary beholden to Congress alone.

The Madisonian view (Constitutional Egalitarianism) argues that all three branches of government are truly co-equal and, thereby, act as a check on each other: the existence of three branches allows two branches acting in concert to check a third branch "not going along with the program" but each branch- Legislative, Executive and Judicial- is permitted to interpret the Constitution (that is, decide the constitutionality of its own actions, yes, but also pass judgment on the constitutionality of the acts of the other branches as well) on its own. 2 versus 1, thus, ultimately determines what is- and is not- constitutional (but notice that- in Constitutional Egalitarianism- no branch gets to alone decide constitutionality as is the case in either Legislative Supremacy, the Unitary/Discretionary Executive or [what is about to be discussed below] Judicial Review). President Abraham Lincoln was one who adhered to the concept of Constitutional Egalitarianism (indeed, it was largely in reaction to this that, after Lincoln had conveniently left the scene, the radicals of Lincoln's own Party attempted to force through Legislative Supremacy via their "Congressional Government", as noted in the previous paragraph).

Finally, we have the Hamiltonian view- that which came to be known as Judicial Review and which has, more or less (if only, at times, by default) won out throughout most of American History so far. In Judicial Review, the Judiciary is the ultimate arbiter of the constitutionality (or lack thereof) of governmental action. There are two bases for this: first off, the notion that such "governmental action" refers only to acts of what judges have traditionally called "the political branches" (that is: the Legislative and Executive)- here, the Legislative and Executive are seen as active (in that they each can act upon any aspect of policy at any time), while only the Judiciary is reactive (in that judges can only influence the Law such policy eventually becomes if and when a live case or controversy is brought before a court via either a lawsuit or a criminal prosecution: unlike the "political branches", judges can't pick and choose which policy to adjudicate at any time the judge so chooses); secondly, there is the logical sequence of Jurisprudence suggested by the order in which each branch of government appears in the Constitution itself: the Legislative branch makes Law; the Executive branch enforces the Law thus made; and the Judicial branch applies said Law, so made and enforced, to any and all instant cases brought before it; since the Judiciary is the one and only branch so applying a given law otherwise executed generally across the entire population to, say, Joe Six-pack in particular who happens to be suing to enjoin enforcement of said law on grounds that it violates his constitutional Rights and Liberties (which are- in American constitutional theory- superior to the powers exercised by government as regards their protection [That to secure these rights, Governments are instituted among men, deriving their just powers from the consent of the governed-- so says the Declaration of Independence]), it is the Judiciary alone that gets to decide, on its own, whether Joe Six-pack is right or not (and, if the court should, indeed, find that the law in question has violated poor Joe Six-pack's Rights and Liberties, the law is ipso facto unconstitutional and, thereby, null and void and utterly unenforceable, no matter that a majority of the People- having expressed their collective will at the polls back when they elected the legislators and executive who passed/approved said law- wanted said law adopted in the first place...

to those who might, thereafter, ask "what happened here to the Consent of the Governed?", the answer is ever "Government power must be just in order for it to be constitutionally derived from said Consent"; put another way: the majority of the Governed cannot consent to an exercise of unjust power by Government on their behalf and, where Joe Six-pack's Rights are insecure as a result of just such an unjust exercise of power, the Government must be prevented from so failing to so secure them if only because, by very definition, unjust powers derived from Consent of the Governed are not at all "just powers derived from the Consent of the Governed".

There are those who argue that Judicial Review is all legal fiction because the words "Judicial Review" themselves do not at all appear in the Constitution of the United States:

True enough... except that the Constitution does say the following: that [t]he judicial Power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time establish [from Article III, Section 1]- thus, Federal judicial power is exercised by Federal courts apart from the Judiciary of the several States of the American Union- and that, among other specific things mentioned later in the same clause, above all [t]he judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their authority [Article III, Section 2, clause 1]- in other words: if someone brings a lawsuit to, or there is a criminal prosecution in, Federal court involving the Federal Law- in the broadest sense of that term- the Judiciary, again, is the only branch of the Federal Government constitutionally competent to apply said Federal Law to the instant case and, in so applying it, is going to necessarily be determining how the Constitution directly impacts upon the individual party to said lawsuit/in said prosecution, unlike either the Legislative or Executive branches.

Further: in the so-called 'Supremacy Clause' [Article VI, Section 2 which reads: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding], we can see that the very language of that clause incorporates the very same language found in Article III, Section 2, clause 1 (in that which is herein made the Supreme Law of the Land is the very thing over which the Federal Judicial power, by definition, extends). More to the point: who is specifically required to be bound by said Supreme Law of the Land? The judges in every State-- note: not State legislators, not the State's Governor or any other State executive officers-- only the judges! Why? Because it is here presumed that said judges in every State will themselves be reining in the State's own Legislative and Executive branches (that is: it would be the State's judges who will be determining the constitutionality, under the State's own Constitution, of the acts of the State's own Legislative and Executive branches in the course of applying State law- made by said Legislature and enforced by said Executive- to cases brought before the courts)! And what it has been presumed the judges in every State will be doing (hence the wording of Article VI, Section 2) is also what it is presumed the Federal judges would also be doing (hence the wording in Article III, Section 2, clause 1)!

Nonetheless, arguments are made, to this very day, against Judicial Review in favor of either Legislative Supremacy (occasionally), the Unitary/Discretionary Executive (rarely) or Constitutional Egalitarianism (more usually) and such arguments over whether or not the Judiciary should, indeed, have the power to ultimately determine the constitutionality of governmental actions as well as of the laws themselves under which such actions have been justified will also play a rather large role come the 2012 presidential campaigns.


Ignorance of the Law excuses no man; not that all men know the Law but because 'tis an excuse every man will plead- and no man can tell how to refute them.--
John SELDEN, 17th Century English jurist in his TABLE TALK: section on LAW [1689, first published 35 years after Selden's death]

But, in the end, will most of the American People really be paying all that much attention to such argumentative arcana as I have posited in the previous three sections of this Commentary as they decide for whom to vote for President of the United States in either a pre-nomination Primary or Caucus or in the General Election come Tuesday 6 November 2012 itself?

No, most likely not.

Those who have had a "gut" feeling that Judicial Review is all a crock- or who are angry at that which they perceive as "judicial activism" or even fear the power of judges to seemingly set aside laws by mere judicial fiat- have been more or less predisposed to feel that way well before they came up with reasoned arguments as to why their positions might be constitutionally valid; meanwhile, those who are grateful that the courts have the power to set aside unconstitutional legislation, regulations, or actions by government officials when an argument against such things is presented in a court of Law are so grateful long before they might come up with reasonable answers as to just why the courts constitutionally have such powers.

Similarly, those who are opposed to what they call "ObamaCare" are generally so opposed long before they rationalize their opposition by appeals to constitutional provisions through which to make their case; in the meantime, those who think a nationwide Health Care system is a good idea so think well before they justify their political position through an argument that such a thing is a perfectly acceptable application of Federal power.

I have now brought this particular Commentary full circle, back to my premise nearer its beginning that the "bell curve" of Americans- those who are not necessarily "true believers" on either side of the ideological/political divide- don't, for the most part, care all that much about the very arguments I have herein outlined. A businessman who fears added costs to the company he owns because of the Obama Health Care plan is more opposed to same because of what it may well cost him than any argument against it on constitutional grounds, while a middle-aged woman who has lost her health care because she was laid off from her job is going to favor national Health Care insurance more because of her own current situation than because of a strongly held position on how far Federal power may, in the end, go.

In the first portion of this piece, I made an analogy between how most Americans- those who are not "true believers"- treat their Religion and how most Americans treat their Politics: this was not to suggest that a person's religious beliefs are, somehow, not at all important to him or her; rather, it was to make the point that most Americans do not wear their religion on their sleeves and that the same is generally true about their politics. But there is an even better analogy and that is how most Americans treat Law itself:

Earlier the very evening on which I am now typing this last segment, I drove to the supermarket to get a few small, relatively inexpensive items- a loaf of bread, a half gallon of milk, etc. On my way there and back again, I had to stop at a few intersections regulated by a stop sign as well as drive through a couple intersections controlled by stoplights (where the light was red, I- of course- stopped); in all that time, I did not- even once- consciously consider that, at a stop sign or red light, the law requires me to come to a "full and complete stop"... I simply stopped my car when so required to do so.

In the store itself, the total at the registers came to $11.30... I did not- even once- think about the fact that the round coin with a side view of George Washington and called a Quarter I was handing to the cashier was worth exactly 5 times the smaller coin with the face of Thomas Jefferson and called a Nickel I was also handing to her because there were Federal statutes, rules and regulations- enforceable by the U.S. Department of the Treasury- mandating this: the same with the fact that the generally green piece of paper with a picture of Alexander Hamilton I pulled out of my wallet is worth 10 times the green piece of paper with a picture of George Washington on it I also produced.

Only as I was typing the words seen in the previous two paragraphs did I at all purposely think about the legal underpinnings of the money that was the medium of exchange as regards my transaction at the supermarket (the law, thereby, protecting the value of my purchases) or the rather negative legal ramifications I might have faced had I not stopped at a stop sign or red light enroute to and from the store.

Now, this is certainly not Ignorance of the Law (though one must ever bear in mind that Ignorance of the Law is, in fact, no defense [hence my quotation from Selden at the head of this section of this piece] and, therefore, even had I not all even known what the law in each case [when a car must be brought to a stop/how much is each coin or bill worth] actually was, I would still have been beholden to follow it anyway) for I am certainly, as has been demonstrated just above, well aware of what the law is!...

rather, it is (for lack of a better term) Noncognizance of the Law. And it is with such Noncognizance of the Law that most Americans go about their everyday business most of the time (just as I did on my little jaunt, by car, to the local supermarket, during which I obeyed and was protected by the law but was not really conscious of so obeying or being so protected).

Likewise, there is a certain "Noncognizance of Political Argument" that accompanies most Americans as they daily watch and/or read the news and, thereby, come to conclusions about how they might feel- politically- about what they are, thus, observing. When a news-viewer sees an item on TV about how the United States Senate voted on a particular bill of importance (for whatever reason) to him and her and immediately reacts with, say, "Just who do these politicians think they are?" (suggesting more than a little unhappiness with the result of the Senate vote in question), the arcane arguments as regards the most necessary and proper division- where not also distribution- of constitutional power are here not- or at least not immediately- at all brought to bear. The reaction, instead, is a "gut" reaction- truly visceral- and it is just such visceral feelings over the issues of the day that will the more come into play when the news-viewer in this little vignette becomes a voter alone in the privacy of a voting booth.

Nonetheless, the voter in question will certainly hear, throughout the election campaigns, at least echoes of all that I have written within the bulk of this Commentary and the person observing the 2012 Presidential Election- whether American citizen preparing to vote therein or outsider witnessing American politics from afar- should be well aware of the constitutional issues ever present behind the arguments over whether this or that makes better public policy!

 


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