The Constitution and Limited Government

AT ONE TIME OR ANOTHER, sometimes sleepily and at other times more alertly, I have read every published word that was said in the Constitutional Convention of 1787 and that was said in the ratifying conventions of the several states. I believe that I can say also that I have read as much of the unpublished materials relating to those conventions as any other living person. Sometimes I have come to conclusions as to the meaning of a particular provision of our Constitution that I have later changed. I have come to one conclusion that I have never changed. In my article in the June 1956 ABA Journal I referred to the words “herein granted” that George Mason induced Gouverneur Morris to insert in the clause granting legislative powers to the Congress. I said that the insertion of these words in the granting clause of Article I of the Constitution “has more significance than meets the eye.” In 1787 and for at least 25 years prior thereto the doctrine of the separation of powers was so fully discussed in colonial newspapers, in pamphlets and in general works on government that the ordinary layman fully understood that the legislative must make, while the judicial interprets and the executive executes the law in all “balanced” republican governments. Everyone understood that the new federal government, constructed by the Constitution, was grounded on republican principles as they knew them. The people were so adamant on that point that a guarantee of perpetual republican government in the states was thought appropriate in the Constitution itself.

It was well understood in 1787 that there were generally three kinds of laws: (1) Fundamental or constitutional; (2) statute law; and, (3) common law. The Constitution was a “constitution” because it constituted a new government. The new government could claim no such continuity with any preceding as would make the common law any part of it unless the constitution so provided. It was limited and not general and did not so provide. The legislative power conferred by the Constitution was specifically restricted to those objects described and granted in the Constitution itself. That there should be no doubt about it the words “herein granted” were inserted and the specific powers catalogued in Article I. The Congress was required to look to the Constitution for all of its powers. It could not look to the common law or elsewhere for power.

“The executive power shall be vested in a President of the United States of America.”

“The executive power herein granted shall be vested in a President of the United States of America”?

“The judicial power of the United States shall be vested in one Supreme Court, and in such inferior couts as the Congress may from time to time ordain and establish.”

Why didn’t Mason or some other constitutionalist have the words “herein granted” inserted after the words “United States”? The reason “herein granted” was not inserted in Article II or III was because without an extension of power the executive may only execute and the judicial only judge or interpret that which the legislative makes in a republican government. So the limitations of Article I became limitations of Article II and III ipso facto. That was well understood in 1787. When we glance at Article II we see that what it says in effect is that the power to execute the laws enacted by the Congress shall be vested in a President of the United States. Then Section 2 goes further (because it had to go further) and states that (in addition to the power to execute the laws enacted by Congress) the President shall be commander-in-chief of the army and navy of the United State, and of the militia of the several states, when called into the actual service of the United states; that he may require the opinion, in writing, of the principal officer in each of the executive departments, etc. In addition to the power to execute acts of Congress and in addition to the President being commander-in-chief of the army, navy, etc., he was given the power, with the advice and consent of the Senate, to make treaties, to nominate officers, etc., with the proviso that the Congress might take from the President the power to appoint inferior officers and vest it in the President “alone” (without the necessary concurrence of the Senate) or in the courts of law or in the heads of the departments. In addition to those powers the President was authorized to fill vacancies and was required to give Congress information on the state of the Union, and receive ambassadors from other countries. The words in Section 3 of Article II: “He shall take care that the laws be faithfully executed” were unnecessary, but were inserted in an abundance of caution and in order to make it plain to the most ignorant that it was the executive’s job to execute the laws made by the congress with care and faithfulness—not to make them or to judge them.

Article III simply vests in the judiciary the power to judge and interpret the laws made by Congress in “cases.” Cases might arise under the Constitution or under treaties as well as under laws enacted by Congress. Therefore, it was absolutely necessary that Section 2 be inserted to “extend” the judicial power (not to “grant” but “extend”) to all cases arising under the Constitution and under treaties—both beyond the reach of Congress. The judicial power was not extended to the laws of the United States. But it was extended to “all cases” arising under the laws of the United States. The judicial power was extended “to all cases affecting ambassadors,” etc. Congress was not competent to make all laws that might affect ambassadors. The judicial power was extended to ‘all cases’ of “admiralty and maritime jurisdiction.” Again, why “extend”? Admiralty and maritime jurisdiction falls within the domain of international law and is a body of law independent of statute or common law and beyond the reach of Congress. The power was then extended to controversies to which the United States might be a party. Certainly the United States could be a party to a controversy that was not completely controlled by acts of Congress. Controversies between a state and a citizen of another state or between citizens of different states are also controversies not controlled by laws enacted by Congress, etc.

The third paragraph says that the trial of all crimes “except in cases of impeachment” shall be by jury. That “crimes”? The exception demonstrates that the word “crimes” was used in an all inclusive connotation. In the early days of the republic some of the federal judges attempted to try people for common law crimes but later the court saw the light. The Constitution did not “extend” the judicial power to common law “crimes” even if the word was used loosely. Therefore, the court receded from its earlier position.

Much has been written about federal courts having “inherent powers.” One of the so-called “inherent powers” is to adjudge people in contempt. State courts may have inherent powers but federal courts have only such powers as was conferred on them by the Constitution. A contempt committed in the presence of the court and which affects the being of the court itself is punishable of course because there cannot be a “court” without such powers. There may be a “court” that does not “stick out its neck” exercising equity powers granting injunctions. Whatever power a federal court may have to punish for contempt out of the presence of the court would seem to be a power necessary to be conferred by the Congress under the Necessary and Proper Clause of Section 8 of Article I.