Original Intent 

In discussions with Conservatives of various stripes, the topic of Original Intent and restrictions on Federal Power comes up often. Conservatives generally like a small government with limited powers, and to this end, often cite the ninth and tenth amendments to the Constitution. They in order, affirm the basic sovereignty of the people, and that powers not granted to the government or denied to the states devolve to the people.

If that was all the Constitution had to say about government powers, then Conservatives would have a case. But the fact is, the Constitution both grants a lot of different powers to the federal government, and explicitly denies a lot of powers to the states.  The people alone are sovereign, but the amendment process was set up in such a way as to make it difficult to amend the constitution, but not impossible.  The people really have to get together and grunt to assert sovereignty over the Constitution.

It's important to remember that the Constitution was designed to replace the failing system of a confederacy of nearly autonomous states as laid out in the Articles of Confederation.  The Founders largely agreed the system was failing, with trade wars and threats of embargoes breaking out among the states, and competing and often contradictory legal systems.  It was clear to most of the Founders that a stronger form of central authority would be needed if the US was to survive. Even Thomas Jefferson, very dubious of strong government, wrote to James Madison of the proposed new Constitution, "Malo periculosum, libertatem quam quietum servitutem. Even this evil is productive of good".

Without a fairly strong central government, the American states were destined to end up as insignificant little fealty states, or simply fall back under British governance. It was clear that the larger colonies of Upper and Lower Canada would be the dominant entities on the continent, and might even wrest the Mississippi and the lands west of that river from the control of other European powers such as France and Spain.

The Federalist Papers are a collection of the different arguments for and against the new central government and its powers.  One of the more amusing intellectual convolutions of the right wing is the notion that the Federalist Papers they cherry pick are THE Federalist Papers -- the ones that argue against a strong central government, and uphold notions of state independence and limited powers.  In short, they take the ANTI-Federalist Papers, and call them the Federalist Papers.  One can only assume that it allows them to sound patriotic while attacking the United States.

In any event, the Federalists -- the ACTUAL Federalists -- prevailed, and the United States, under a Constitution permitting a strong central government, came into existence.

Which brings us to what the Federal Government is empowered to do.  It grants specific and wide-ranging powers to the legislative branch, vague but even wider powers to the executive branch, and supremacy to the judicial branch.

Let's start with the Legislative branch, namely, Congress.

Article 1, Section 8 has an entire laundry list of things Congress can do.  First and foremost, Congress has the power to tax.  The only limitation imposed on this power is that taxation not favor one state over any others.  The rules have to be uniform throughout the land.  That's pretty federalist.

Congress is empowered to borrow money, for better or for worse.  It's easy to spot the "worse" -- profligate spending and annual deficits.  The "better" keeps the country in a position where it can deal with the unexpected -- wars, natural disasters, plagues, famines, whichever of the four horsemen happens to be feeling bored in any given fiscal year.  (Parenthetically, this is why the Balanced Budget Amendment was such a rotten idea:  Congress could not spend money it didn't have in an emergency.  Imagine if we were in a crisis like we faced in 1943, when our national survival demanded outlays of three and a half dollars for each dollar in revenue. In terms of 2000 economics, that would mean a budget of some SEVEN TRILLION dollars, and a deficit of FIVE TRILLION -- nearly equal to our total national debt!  Suppose one third of the Senate decided that we really didn't need to be spending that type of money?  Can you imagine the 106th Congress voting to bust the budget to fight Hitler?  I can't).

Congress can regulate commerce, not just with other nations, but among the states.  "Interstate commerce" is an oft-invoked, sometimes abused, but indisputably sweeping power.  It essentially means that anything that crosses state lines is Federal territory, from a law enforcement point of view.

The Congress controls rules regarding acquisition of citizenship, and landed immigrant status, and has sole power to determine the laws regarding bankruptcies.  (Incidentally, as this is being written, a state judge in Florida has put a restraining order on the Justice Department decision to return six year old refugee Elian Gonzalez to his father in Cuba [11/1/00].  That judge's ruling, if it reaches the point where anyone bothers contesting it, will be struck down, as immigrant status is a determination unique to the Feds.  The states have no power, and that state judge was ruling out of his jurisdiction).

If the Congress decided tomorrow that we were going metric and the President signed it, and some backward state decided meters were a communist plot and passed a law mandating use of feet, pounds, gallons, the courts would strike it down.  Congress has sole authority to determine values of weights and measures.  While states can make legal tender from precious metal, only the feds can use paper or copper and call it money.  States cannot.

Post offices and post roads don't sound like such a big deal in these days of radio, television, Federal Express and email, but in 1787 it was considered a vital power.  It basically gave the federal government control of most of the extant communications grid.

Because the government has never really abused it (at least, not so anyone has noticed) few people realize just how important the power to regulate and grant copyrights really is.  In theory, the government could destroy Microsoft simply by refusing to acknowledge any copyright/trademark applications made by that company.  Microsoft would either have to stop releasing new (unprotected) programs, or watch them get reverse engineered and sold at lower prices by competitors. Even without such types of abuse, copywrite enforcement is a mighty power, ensuring, as it does, that business law remains dependent on the government for enforcement and implementation.  Next time a libertarian grumbles about how getting rid of government would free us, ask him how free we would be if nobody was around to enforce contract law.  Congress is empowered to do that, too.

It can set up federal courts, which have power over state courts.  It's the one of two ways in which the judicial system is kept accountable to the other two branches of government.  (The President is empowered to nominate supreme court justices -- that's the other.)  Judicial powers are sweeping when it comes to constitutional matters, and WHO is on the bench can be vital, as the ongoing power struggle over the judiciary shows.

Congress not only has power to declare war, but has SOLE power to declare war.  Congress also allocates funding and budgeting for the armed forces.  That power along led to dozens of civil wars in Europe, as royalty, aristocracy, parliaments, and churches fought for possession of that, the ultimate national power.

Domestically, Congress is empowered to call out the militia to repel invasions and quell domestic disturbances.  With the militia, they control all aspects of its existence save two:  states may appoint officers in the militias and train the soldiers.  But Congress decides when they should be deployed, how they should be armed, the funding, and everything else.

To prevent a Congressional tyranny, however, the Constitution DOES provide a check on that power.  The Commander-in-Chief of the military is the President of the United States, who is head of the Executive (administrative) branch.

The Constitution finishes up this huge laundry list of powers by granting the Congress the right to make any and all laws deemed necessary for implementation and execution of all those powers.

Even the powers forbidden to Congress reveal the extent of Federal power.  Congress is not empowered to suspend habeas corpus except of course, for when they CAN.  Most people don't realize that Congress is empowered to suspend the flagstone of legal protections for the citizenry "in the cases of Rebellion or Invasion the public safety may require it".

The Executive (Administrative) Branch of government is merely equipped to implement and administer all laws passed by Congress.  That's all.  Oh, and to make regulations in the various administrative departments to aide in the administration of those laws.  Without the administration to enforce laws, Congress is a noisy and futile gaggle of windbags.  (The obvious rejoinder isn't accurate.  And accurate one would be "They are a noisy and POWERFUL gaggle of windbags.") The Constitution doesn't specify administrative powers, because administrative functions pretty much defined themselves.  Those powers are so sweeping as to defy tabulation.  The President is the head of the military, and is free to appoint all officers under the United States not specifically excepted by the Constitution, with Congressional consent.  He can appoint ambassadors, Supreme Court justices, make treaties, and during Congressional recess, can make unilateral interim appointments to any of those posts.  Few kings of middle age Europe had such autocratic power.  In the event that Congress and the President are on good terms (as has been known to happen at times), the joint power they wield in conjunction is awesome, beyond that of many existing national governments, and all quite Constitutional.

Even though the room given the Executive branch given here is less than that given the Legislative branch, the Executive is, in terms of central power, stronger than the Congress.  It can do everything Congress wants, plus a few other things.

Enter the Judiciary.  Here come da judge.  That would be the courts.  They have one real power on the federal level, but it's the most important power of all.  The judiciary can strike down any law, any regulation, any action taken by the Legislative or Executive branches, or any other authority in the United States that interferes with or infringes upon the rights of the people.  Judicial power as described in the Constitution is sweeping, but it's a little frightening that the real power of the courts -- the power to undo unconstitutional laws -- was one the Court essentially granted to itself in 1803.  Marbury vs. Madison was a ruling whereby the court could strike down any law it found unconstitutional.  As with the power to interpret the constitution so often bemoaned by conservatives, the power to strike down specific laws is not mentioned in the Constitution -- but, like the power to interpret, is an obvious necessity if the courts are to perform the tasks that the Constitution DOES assign to them.

They are the thin black line.  They are the ones with the power to undo.  They are the escape key, the eraser, the white-out.  They are the ones who can deal with badly written laws, or malevolent intrusions into peoples' rights, or the unintended consequences of good intentions.

But they are, in general, not a part of the democratic process.  Nor should they be.  The judiciary should be as far removed from the political process as possible.  Your rights mean exactly what Congress and the President think they should mean without the judiciary.  It's the role of the judiciary to keep the people sovereign.

No country is free without a free and independent judiciary.  It's no accident that one of the very first Edicts Adolf Hitler signed was one making judges answerable to the Reichstag for their decisions in law -- they were empowered to fire judges who made decisions they didn't like.  That ended any hope of Germany escaping the horrors of Nazism.  Hitler knew what to do about those liberal activist judges.

America's judiciary isn't as independent as it could be.  Some of that is by design -- the President can nominate and Congress confirm judicial nominations, and Congress has the power to impeach District Court Judges and above.  (It's worth noting that half of the impeachments ended in acquittal or dismissal of charges, and a large majority were based, not on malfeasance, but political expediency).  And quite a few judges and other court officers are elected, in a well meant but essentially wrong-headed effort to democratize the process.  However thought electing district attorneys would result in more honest prosecutors had his head up his ass.

Be that as it may, the judiciary is, in it's reflexive and almost passive way, the most powerful branch of an extraordinarily powerful form of government.  Only the fact that much of that power is put in to negotiating through the separation of powers keeps it the relatively benign entity that it is.

Don't kid yourself.  The Founders did not want a perfunctory government that existed basically to conceal the fact that America consisted of a dozen or so powerless little fiefdoms.  They wanted a big, brawny government with lots of teeth that was there to act as the watchdog for the people.

It's big.  It's powerful.  It's got lots of teeth.  And if people keep pretending it is anything but that, then they will learn the sad lesson of others who neglected to properly train and discipline their dogs.  Government, as Jefferson said, is a wonderful servant and a terrible master.

Ours was given enormous power to fight for us.  The people who want to rob it of that power; the neoConfederate, the new aristocracy of the corporations, the fundamentalists -- they are not fighting for US.  They are pursuing their interests, and government is their impediment.

The most important element of government is that it be loyal, and subservient to, the people.  Control of that awesome power is, as it's always been, up to the people  -- us.

In various decisions, they have affirmed that the Bill of Rights supersedes any state law, as well as federal, and using the 14th Amendment language of "privileges and immunities", argue that all rights enumerated in the Constitution supersede any and all state laws.  Every so often, a neo-Confederate comes along and laboriously explains that the 14th amendment isn't valid because they forgot to touch third base or some such thing, but in fact the same phrase appears in the main body of the Constitution, in even more unmistakable intent:  "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States".  (Throughout the main text, the phrase "several states" means "ALL the states".).

The Constitution also contains the Supremacy clause, which states "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land."  There's no room for equivocation there:  the Founders clearly meant for the Feds to be running the show.