Recent controversy surrounds the President Obama’s intention to use an executive order to implement dramatic changes to immigration law, including a generous grant of amnesty for people who arrived in USA in violation of immigration laws.  The President claims to have this power under the constitution.  Naturally, many in congress primarily from the opposition party claim that this is not constitutional.  This controversy motivates me to explore some of my ideas about the question of what is allowed and not allowed by the US constitution.

I am no constitutional scholar and I have no legal training.   I am not going to offer anything authoritative.   As usual, I’m just writing down my thoughts.  Today I’m thinking about how the constitution regulates our government.

The constitution and its amendments enumerate specific powers, responsibilities, and limitations for the three branches of federal government.  The document itself is short and thus each clause is short and general in nature.

There is room to argue about the meaning of the clauses.   Some attempts have been made to reconstruct the thinking of the time to recover the original intent.  Other attempts have been to interpret the clauses in terms of modern understandings and realities.

Personally, I’m inclined to favor the original intent approach although I recognize it is virtually impossible to establish exactly what that was.  The authors are all dead.  My motivation for an original intent interpretation is that I want the constitution to be a legal document I can interpret myself and come to an accurate conclusion about what it means.  I am just a citizen with no official role in government, but I still feel entitled to understand the legal document governing our government.  In my opinion, the legal authority of the document derives from the understanding of those who ratified it.

The legal document of the constitution was negotiated and signed at a particular time by a particular group of people.  The binding agreement was their interpretation of the document.  Although they had their disagreements, they at least shared a world view of an early nation of strong state governments and an economy based on a small business model either for simple industries or agriculture.

They also shared a culture that valued a classical education as a mark of a liberated man: a liberal arts training that started in elementary school.   Although they had disagreements on religion, they largely shared a culture of individual honor and reputation.  In combination, this culture conceived of a citizen who was educated to understand legal documents.  The citizen would also have the strength to follow through on their obligations.

This description of a shared culture is more of a general tendency than an absolute thing.  The entire reason for the constitution was to provide a government to answer immediate needs to define laws and to settle disputes, particularly among the States at the time.  There were plenty of disputes.  They did not live in a perfectly harmonious environment.

Yet, I think the people as whole shared a strong sense of individual responsibility driven by a desire to maintain a good reputation that would be seen as honorable according to their education.

In much of the modern discussion of the US constitution, the concept of original intent typically applies to interpreting meaning of individual words in each of the clauses.  I am suggesting a broader original intent of what it meant to them to be bound by a legal document.   Inherent in that meaning is their respect for their individual education and for their honor that was worth defending to the point of dueling or rebellion.

In particular, they had a strong sense of obligation to be bound by an oath.  An oath was a very powerful obligation.

The oaths that the constitution requires of office holders bound them to abide by the constitution.  Also, through their sense of honor and pride in education, they saw the oath as an obligation to understand the constitution in order to defend it.

I imagine the modern culture to be very different from their culture.  I still prefer the original intent standard for interpreting the constitution to understand what exactly is binding in the document.   The fact is that the original intent is largely inaccessible to us.  Instead of suggesting we can replace our own intent in the wording,  I conclude that the document has lost its meaning.   Because we can no longer understand the original intent, the document is no longer valid.  It should be replaced.

I believe my conclusion of the obsolescence of the document is consistent with the original intent.  The original authors of the constitution were interested in solving the problem of governing their immediate time and for something that would serve their children and grandchildren.   They were not thinking beyond that time frame.   I imagine that they would have expected that future culture far unlike their own would scrap the constitution and replace it with a new one that better suited them.   Although they hoped to have a lasting document, they would not have been surprised if the constitution were replaced every 50 years or so.

To me, the original intent standard for a legally binding document sets an age limit on the document.  If we can’t understand the original intent, then it is time to replace it with something we do understand.  In an earlier post, I described how a new constitution may look like that better captures how we live today.  I tried to capture our modern expectations from government.  Such a new constitution would be one that everyone would find easier to understand its original intent because that intent captures modern life and sensibilities.  Even if I may dislike the provisions, I prefer to live under a constitution that I can read for myself and understand accurately how it affects government.

As I mentioned at the start, I wonder about the President’s opposition complaining about the unconstitutional actions of selective enforcement of laws passed by Congress.   Although the present controversy involves President Obama, this controversy also existed with President G.W. Bush through his use of signing statements expressing his intent of selectively executing some law.  Both political parties have had an opportunity to be the President’s opposition to this practice.   Both parties have claimed (at one time or another) that these Presidential acts are unconstitutional.

Reading the raw text of the constitution, I understand the point.  The role of the president is to faithfully execute the laws passed by Congress.   That faithful execution includes following provisions the President personally disagrees with.  The president’s only option to object is to veto new legislation and even that is limited to just legislation passed during his term.

However, I do not think that executive orders or signing statements that deliberately avoid executing certain aspects of the law is forbidden by the constitutional.   I would argue that the President, in his executive role, can do anything he wants to do as long as Congress provides the funds.    When the President acts outside of his enumerated powers, the constitution merely provides an opportunity for a remedy.   The constitution itself does not force the remedy.  The constitution has power to prevent the transgression of the enumerated powers.  It merely provides permissible actions to address the transgression in a peaceable way.

The constitution permits the following mechanisms:

• The voters can elect new president or representatives
• The congress can initiate impeachment proceedings that were deliberately designed to be politically difficult
• The congress can propose constitutional amendments to clarify the enumerated powers
• The states can call for a constitutional convention to address the abuses

The constitution does enumerate powers for each of the branches and reserves non-enumerated powers to the citizens and states.  If these enumerated powers are violated, the constitution permits certain peaceful corrective actions.  However, the constitution does not obligate us to use those actions.

The president can do what ever he wants with funds that are made available to him.  If the voters choose to reelect him, and if congress chooses not to impeach him, and if the states choose not to hold a constitutional convention, then the constitution allows the President to act on his own.   Although the original framers of the constitution specifically wanted to avoid the creation of a tyranny or autocratic government, such a government is possible under the constitution as long as no one exercises the peaceful options permitted by the constitution to stop the President.

A tyrannical President is not incompatible with the constitution if everyone agrees not to exercise the permitted remedies.

Although the constitution does enumerate powers and limitations on each of the branches, the constitution itself lacks any power to force its rules.   As I read the constitution, I see the constitution merely suggesting or permitting certain remedies.  The constitution deliberately leaves these remedies as optional.  The people at the time have to decide whether to exercise the remedies.   The constitution is equally satisfied whether people exercise the remedy or not.

However, I am reading the constitution from a modern understanding.  I prefer to read it from the original intent, but that intent is largely inaccessible to me.   I live in a different time.

I think the constitution had more power in earlier years because an original intent that is now lost to us.  I believe that lost power came from the requirement that each officer of the government take an oath of office appropriate for that office.   We still take those oaths, but those oaths mean something very different today than it did then.

In the earlier years of the republic, the oath of office to defend the constitution turned the permitted actions into obligations.  All of the offices (the president, the representatives, the senate, and the justices) could read the plain language of the constitution and took seriously their oath to defend that language.

The seriousness of the oath is what is lost to us.   Although the earlier years had a lot of diversity in terms of religious thought, the overall culture treated individual honor very seriously.   A violation of an oath, or a neglect to follow the obligations of the oath would have a impact to individual honor that is hard to imagine today.   The violation or neglect would have damaged their very eternal soul (however they may have interpreted that concept).

When the early office holders took their oath of office, they read the constitution from their perspective and defended their understanding of the constitution.   This certainly led to arguments.  Importantly, the arguments were not optional at the time.   Their oath of office obligated them to defend the constitution.  The enumerated remedies to maintain a balance of power were made non-optional by the force of the individual oaths.

A key aspect of the original intent was this interpretation of an oath that obligated actions permitted by the constitution to defend each person’s educated understanding of the constitution.

Over time, the oath as lost this strength.  Our modern culture has a more relative perspective on individual honor that is at stake with the oath.  Our interpretation of an oath is an act that has less risk of long-term or permanent damage to an individual’s honor or reputation.  The oath itself depends on the context.   We agree to defend the constitution only in situations when the conditions demand it.

Earlier office holders would have interpreted their oaths to defend the constitution on absolute terms whether it was beneficial to them or not.  Their oaths of office demanded an interpretation of the remedies for exceeding enumerated powers as obligations not optional.   Today we see them as optional.

The argument about original intent usually address the contemporary meanings of words in each of the clauses.  Arguments about word-meanings have been unconvincing.   In any case, the impact of interpreting individual words is small compared to the impact of the interpretation of the oath of office.   The original understanding of the oath demanded an obligation to act when anyone saw the constitution being violated by his peers in government.   The constitution provides legal remedies.  For the constitution’s enumeration of powers to have any meaning, the office holders or citizens have to execute those remedies.   The original understanding what that it would be natural for the office holder to take his oath so seriously that it would would obligate him to exercise these remedies.

Oaths do not have kind of power today.  I seriously doubt modern oaths have any motivating power all.   The oath to office is a formality that may evoke some emotions during the ceremony, but has no long lasting implications.   The call to defend the constitution is conditional on an assessment of whether the constitution is under attack and whether the best of the ability is capable of defending it.   The modern oath does not require observing constitutional violations as warranting defense.  It also does not require that the oath-taker have any ability to defend it.    I suspect both of these qualities were widely expected at the start of the republic, but they have virtually disappeared today.

The oath has lost its power.  Unfortunately, the oath of office is the only force that the constitution has to assure that the separation of powers are maintained.   Someone has to fight the transgression.  In the constitution, that someone is either the office holders, the states (in calling for a convention), and the public (in participating in government to make informed voting decisions).   If none of these exercise their voices, then the constitution offers no constraints on power.

While the oath has lost its power, we have also made a change in attitude about who is responsible for deciding the constitutionality of any case.   I have always heard that the early 19th century Supreme Court ruling in Marbury v Madison was the case that established the Supreme Court as the final decider of constitutional questions.   I understand that this was not an innovation of the court because it was well expected that legislation would be subject to judicial review for conforming to the constitution.   However, it was the first case for the court to assert this right.

The reason why the case even reached the court was because of a healthy expectation that the individual office holders (the president and the members of congress) can decide on their own whether some action is constitutional.   The very nature of the balance of power means that there will be disagreements about what will be constitution.   In this case, the ruling had to do with a case where the opposing power no longer commanded a majority of congress to use the constitutionally provided remedies to fight the new President’s actions.   They chose to take their case to court.  This gave the court the opportunity to judge a legislation as unconstitutional.

However, had the opposing party had the strength in congress, they could have impeached the president.  Alternatively, they could have rallied the states for yet another constitutional convention.   They lacked that strength.  If they had that strength, I suspect they would have used it even with the contrary court decision.  The court could decide on what is constitutional, but they were not the only ones who could make the choice.  In this case, the losing side lacked the power to exercise the other options.

For this post, I am discussing my own impression that this case is a pivotal one for setting the supreme court as the final decider for constitutional questions concerning legislation.   I suspect the case had a minor impact initially because this was not a surprising assertion for the court to make.   There was still room for individuals to decide on their own whether some acts were constitutional and if not what to do with it.   Making such decisions were not solely reserved for the Supreme Court alone.

Over time, though, there became an attitude that because the Supreme Court has the final say in matters about the constitution, then it should have the only say in those questions.   My impression is that the Supreme Court’s assertion starting with Marbury v Madison set into motion a trend in thinking that no one else but the Supreme Court has the authority to decide constitutionality of legislation or actions.

Over time, office holders in the other branches gradually lost interest in their ability to interpret and defend the constitution.   They chose an attitude to do whatever they want and leave it for the Supreme Court to say whether that action was permitted or not.

Certainly, we still hear plenty of references to constitutional limits in political debates in the legislative and executive branches.   However, these debates are for political purposes only.  They never raise to the level of action to defend the supposed interpretations.   The modern vision of the Supreme Court is that it is somehow overseeing the political process and will step in when needed.

The image that comes to mind is in a home with parents sitting by while the children are playing and arguing with each other.   The children may get rough fighting with each other, but at some point the parents will intervene to stop the fight and issue a ruling of who is right or wrong.

I get the impression that that image describes the political fights between the House, Senate, and President.  They will argue politically, but this argument not get too rough because the Supreme Court is watching.  There is an expectation that the Supreme Court will intervene before the fight gets too far out of hand.

I do not think this is reality.   Unlike the parents in my metaphor, the Supreme Court is not monitoring the day to day political fights.   They will only consider cases that are presented to them, and they will decide only those cases they choose to decide.  If there really was a crisis between the President and Congress, for example, I don’t expect the Supreme Court to voluntarily inject itself into the fight.  This is inherent in the constitution.  The separation and balance of powers requires each branch to defend its own territory.   I am just observing that the arguments between the branches appear to proceed as if they expect the Supreme Court to be supervising them.

The consequence is that the branches have adopted an attitude that they do not have to take the constitution seriously.  They can push the limits because they have delegated to the Supreme Court the thinking about the constitutionality to their actions.

It is my belief that this is a very different attitude from the start of the republic.  In the beginning, everyone had an equal authority to interpret the constitution for himself and to defend that interpretation.   The Supreme Court offered a final answer only when other avenues (such as new elections, impeachment, or conventions) are unavailable.   If those avenues were available, then there would be no appeal to the Supreme Court.  They would not hesitate to resolve conflicts about constitutional interpretations by themselves without involving the Supreme Court.

Again, I am not a student of history.  I am just describing my impression of my limited knowledge of history.  My impression is that the first few decades of the republic was a much more vigorous period in terms of defending individual interpretations of the constitution.

Today, despite a very deep partisan divide in the government, there does not seem to be much attempt to assert an individual authority to interpret and defend the constitution.   A good example of this is the recent attempts by the House of Representatives to submit a lawsuit to sue the President for not faithfully executing the duties of his office.   The complaints in the lawsuit appear to satisfy high crimes and misdemeanors that would justify an impeachment, but the House chooses to submit a lawsuit (that at this date has not even been submitted).  The purpose of the lawsuit is to take the matter to the Supreme Court.  It also excuses them from having to use the more direct confrontation permitted by the constitution.

The House is acting like the children seeking the parental figure to decide their argument.   They are not asserting their authority to take up this matter themselves through the tools they have available: initiating impeachment, forming new constitutional amendments, or encouraging states to call for a constitutional convention.  Instead they are begging the Supreme Court to settle this dispute.   Even if the Supreme Court decides in their favor, no one is any closer to forcing the president to change.  The president can just continue to act as he always has.

In their defense, they are not taking these actions because they have no hope they will win.  Realistically, the lawsuit is the only thing that is likely to make any progress and even that has the challenge of convincing the courts to take the case.

However, this realism illustrates the weakening of the oath of office.   If the members of the house really believe the President is acting outside of the bounds of the constitution, the force of their oath of office should compel them to proceed with the remedies described in the constitution, no matter how unrealistic their chances of success.

Their predecessors in the early 19th century would have taken up that fight.   They would have done so because they accepted their own authority to interpret the constitution and based on that authority conclude that a fight was necessary to defend their interpretation.  Their oath put their honor on the line if they did not fight, no matter how poor the odds of success.

The analogy for their time was their readiness to enter into duels to settle arguments.   Dueling came with the real chance that they can be severely injured or killed did not discourage them from participating in the duel.   They took that same fighting spirit with them in the execution of the office.  The oath was what made that possible.

This is eagerness and readiness to fight comes from a certain understanding of the oath.  The reason for the constitution mandating each office holder take and oath was to bind these individuals to commit to fight when they saw (on their own authority) that constitution needed defending.

The oath lost that power to compel a fight despite the odds of failure.   Culturally, we lost this sense of long-term honor to a name or reputation.   But also, within Congress and the Presidency, the office holders lost the sense of authority for deciding what is constitutional and what is worth fighting for.

Today, that fight belongs in the courts alone.  The legislative and executive branches see the courts as the final decider of their differences, instead of settling the differences themselves without the court.   The example of the proposed lawsuit by the House of Representatives is interesting because the Courts have repeatedly signaled a disinterest in settling differences between the other two branches.   I doubt that the lawsuit will ever get any hearing in the court at all.  And yet, that is seen as the only way to resolve this dispute between Congress and the President.

Although a majority in the House feel that the President is not faithfully executing his duties, they lack the conviction of their authority to make this decision themselves, and they lack any sense of obligation from their oath to take up the fight immediately with the tools they have available.

That tool that no one dares to touch is impeachment.  The process of Impeachment is much like the old practice of dueling.  Once the challenge is presented either party may win and the other will be severely injured.  This is reality.   My point about the original intent of the oath is that it would compel the oath-taker to take this risk and enter the fight when he feels the situation calls for it.  That intent is lost, and with that loss we lost the constitution.