The Constitution – How it works

BY Bill Banta

During a conversation a few years ago, my wife asked me how the Constitution actually works.  I thought it was a good question and not just because my wife asked it.  The way the Constitution works is this: unless the Constitution says that the government in Washington, D.C. has the power to do something listed in the 18 short paragraphs of Article I, Section 8, then the government in Washington, D.C. has no legislative authority to deal with a subject.  If a subject is not mentioned, it is beyond reach of the government’s enumerated powers.

When you read the Constitution (it’s only four pages long in the original) you will see how few powers the federal government really has.  In fact, most general powers of government are held by each State individually, not by the government in Washington, D.C.

The Constitution only gives enough powers to the federal government to militarily protect the States from Foreign nations that might otherwise threaten them.  And there are a few other national powers that the Constitution specifies, namely to: print money; regulate business between States or with Foreign nations; foster national citizenship; enact bankruptcy laws; set up post offices; encourage patents, copyrights, and trademarks; and establish Washington, D.C. for a national capital.  But the main idea of a federal government was to protect the States in a Union, the United States of America.

The first 3 Articles (out of 7 altogether) of the Constitution divide operations of the government  in Washington, D.C. into three separate branches: legislative, executive, and judicial.  The remaining 4 Articles variously provide for: certain rights of States or Citizens; amending the Constitution; oaths of office; and ratifying the Constitution.

All other rights and powers are retained by the people or reserved to the States (unless prohibited) or to the people themselves, as the 9th Amendment and the 10th Amendment confirm.  The other 8 Amendments (of the original 10 which are known as “the Bill of Rights”) either emphasize some of the innumerable reserved rights of the people such as speech, assembly, religion, press, and bearing arms, or prescribe judicial procedures that protect the people such as lawful searches; seizures of property; self-incrimination; double jeopardy; due process; speedy trial; jury trial; excessive bail; and cruel and unusual punishments.

As for importance, the Constitution declares itself to be the supreme law of the land.  Thus, no other law can affect it and only an Amendment that is proposed and ratified according to the requirements of the Constitution can alter or change the Constitution in any way.

In addition, Chief Justice John Marshall wrote (in a case titled M’Culloch v. Maryland) that the Constitution is “intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs.”  Nevertheless, “adapting” or “expounding” the Constitution to give “true meaning and operation” according to its terms (as Alexander Hamilton wrote in Federalist No. 22) is subject to the Constitution’s limited powers and authority, which can only be changed by an Amendment that is proposed and ratified according to the requirements of the Constitution.  Therefore, because the Constitution carefully limits the powers of federal government, if Congress, which is the only branch allowed to make laws, went beyond the few powers enumerated, its act or “law” would be ineffective and would amount to no law at all.  As Chief Justice Marshall wrote (in a case titled Marbury v. Madison) “a law repugnant to the constitution is void”.  

The meaning of the Constitution today is exactly what it was when it was ratified by the people in the States.  Therefore, it is not difficult to see whether a law is authorized and binding, or not.  We read the Constitution to see if it says the government is authorized to do something in particular.  If not, then the government in Washington, D.C. has no power to deal with the particular subject matter at all.  No authority, no power; no power, no authority.

For example, let us ask whether the federal government can pass a law providing for school loans to college students.  We read through the 18 short paragraphs of Article I, Section 8 and find nothing concerning either education or loans.  Then, we have the answer.  Since there is no power to make laws concerning either education or loans, Congress cannot make any law providing for school loans to college students.  The key is that the Constitution means exactly what it says and it says exactly what it means.  All we have to do is read it.

To understand why this is so we might consider the purpose behind drafting the Constitution in the first place.  About 200 years ago, a young journalist asked an old militiaman to tell him why the Americans had fought the British in the Revolution.  Was it for liberty or justice? the reporter inquired.  No, the old timer said, it wasn’t that.  Was it for equality? the reporter persisted.  No, no, it wasn’t anything like that, answered the old man. Well, what was it then? said the journalist.  You see, answered the aged patriot, we had been on our own over here for a long time and had gotten used to governing ourselves  .  .  .  but “they” didn’t think we ought to.

Assuming the old patriot had it right, then the Revolutionary War and the Constitution which created the government that followed the Revolution were mainly about preserving self-government.  When we think about it, that is the essence of American freedom – the right of the people to govern themselves.  If we appreciate that fact, then the carefully worded language of the Constitution restricting and binding the government makes sense.  Limiting the powers of the government in Washington, D.C. to only a few that were specified was intended to ensure the freedom of the American people to rule themselves forever.

Bill Banta is a Colorado lawyer in Arapahoe County.  He practices commercial law and litigation, real estate law, probate law, and estate planning.

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