The U.S. Constitution in a Nutshell: O'Donnell Is Right, Coons Is Wrong

The United States Constitution is short and easy to read. It is far shorter and easier to read than most legislation, excepting such fluff as a declaration of a “National Eat Healthy Day.” The guts of it are that the federal government can lawfully exercise only those powers the Constitution grants; everything else is reserved to the states and to the people. Article X of the Bill of Rights says:


The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Article XIV of the Constitution, among other things, extended to state governments some but far from all of the prohibitions on the federal exercise of power:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Article XV expressly limits the power of both the federal and state governments:

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

Over the years, the impact of federal laws on individual citizens, as well as on the states, has become engorged by minimizing or ignoring constitutional limitations. These expansions originate with the Congress and the administrative agencies the Congress creates, as well as with executive orders. No legislation should be passed, and no executive order issued, without a clear and detailed statement of its constitutional basis. The federal government should not be permitted to rely upon bases not stated if the stated basis fails.

According to this article:

I have been fascinated by Christine O’Donnell’s constitutional worldview since her debate with her opponent Chris Coons last week. O’Donnell explained that “when I go to Washington, D.C., the litmus test by which I cast my vote for every piece of legislation that comes across my desk will be whether or not it is constitutional.” How weird is that, I thought. Isn’t it a court’s job to determine whether or not something is, in fact, constitutional? And isn’t that sort of provided for in, well, the Constitution? In 2003, O’Donnell said of the Supreme Court that “it’s kind of like we have the nine people sitting there in Washington who have a constitutional monarchy and that is an abuse of the system.” So I do wonder a little whether she’s claiming that her view of what’s constitutional trumps theirs. Not a lot of space for checks and balances in that reading.


To the contrary, Ms. O’Donnell got it about right, demonstrating a healthy regard for the Constitution and the separations of powers it created. I would extend the thought to executive orders and also to the actions of our ubiquitous and very powerful administrative agencies, which all too often pay insufficient attention to the statutes authorizing them.

As observed by Judge Tatel of the D.C. Circuit Court of Appeals in an address to folks at the EPA:

As its most fundamental inquiry, administrative law calls upon courts to determine whether an agency’s action falls within the scope of its authorizing legislation. This task often involves no more than reading the law. Then‐Professor Felix Frankfurter, one of the fathers of administrative law, famously admonished his students: “(1) read the statute; (2) read the statute; (3) read the statute!” This is self‐evidently good advice, but you’d be surprised how often agencies don’t seem to have given their authorizing statutes so much as a quick skim. … After all, agency authority comes only from Congress. If the agency can’t reasonably trace its action to a statute, it has no business acting. Although agencies are more accountable than courts, Congress is more accountable still.

As an attorney involved for many years in cases involving the Federal Communications Commission, I know that Judge Tatel was right on point.

The legislative and executive branches obviously do not have the final say on what’s constitutional and what isn’t. That’s up to the courts and ultimately to the Supreme Court. However, the legislative and executive branches do have the first and second says and that’s very important. An imperfect analogy might be made: We The Peons get the first opportunity to decide whether something we want to do is lawful; if we do it and the courts decide that it was unlawful we suffer the consequences (or at least should; sometimes, there are no consequences).

As noted here:

Newsweek’s Ben Adler was aghast at the clause in the GOP’s Pledge to America that Republicans will provide a “citation of constitutional authority” for every proposed piece of legislation. “We have a mechanism for assessing the constitutionality of legislation, which is the independent judiciary,” Adler wrote. “An extraconstitutional attempt to limit the powers of Congress is dangerous even as a mere suggestion, and it constitutes an encroachment on the judiciary.”

A progressive blogger, meanwhile, writes in U.S. News & World Report that such talk of requiring constitutionality is “just wacky.”

Before we get to the historical niceties, a question.

Does anyone, anywhere, think legislators should vote for legislation they think is unconstitutional? Anyone? Anyone?

How about presidents? Should they sign such legislation into law?

Yet, according to this creepy logic, there’s no reason for congressmen to … obey … or even consider the supreme law of the land. Reimpose slavery? Sure! Let’s see if we can catch the Supreme Court asleep at the switch. Nationalize the TV stations? Establish a king? Kill every first-born child? Why not? It ain’t unconstitutional until the Supreme Court says so!


A requirement that all legislation and executive orders state expressly the bases on which they are deemed constitutional would be a constant reminder of the need for constitutional compliance, and might even cause the “unwashed masses” to think more seriously about constitutional authority. These would be very good things. It should improve at least marginally the changes of laws being constitutional and should at least cause the matter to be focused on more thoughtfully.

There could also be a further benefit: if the constitutionality of legislation or an executive order were expressly declared by the Congress/president to be predicated on, for example, Article IV of the Constitution, and if it were later determined by the Supreme Court that Article IV does not support it, then the inquiry as to constitutionality should stop with Article IV. In analyzing legislation, the courts normally review its history to determine its purpose. Were the stated purpose of legislation to keep “red neck Teabaggers” from voting based on a congressional finding that they are uneducated subversives, it would almost certainly be declared unconstitutional. Improper reliance on a specified part of the Constitution should have the same effect. And this possibility might in turn give the Congress pause in deciding whether particular legislation should be passed and the president pause in deciding whether to sign it into law. It should also give the president pause in issuing executive orders.

The recent ObamaCare legislation is a case in point. It was emphasized during the legislative process that reliance was on the Commerce Clause — Article I, Section 8 — and not on the taxing power of the federal government under Article I Section 8 or Article XVI. Indeed, President Obama denied that the mandate to buy insurance, enforced by financial penalties, was equivalent to a tax. The law as passed has multiple “findings” dealing with how the Commerce Clause authorizes it, even though the Congressional Research Service recognized that:


Despite the breadth of powers that have been exercised under the Commerce Clause, it is unclear whether the clause would provide a solid constitutional foundation for legislation containing a requirement to have health insurance. Whether such a requirement would be constitutional under the Commerce Clause is perhaps the most challenging question posed by such a proposal, as it is a novel issue whether Congress may use this clause to require an individual to purchase a good or a service.

Currently, the Obama administration is defending ObamaCare principally under the taxing powers:

When Congress required most Americans to obtain health insurance or pay a penalty, Democrats denied that they were creating a new tax. But in court, the Obama administration and its allies now defend the requirement as an exercise of the government’s “power to lay and collect taxes.”

And that power, they say, is even more sweeping than the federal power to regulate interstate commerce.

Administration officials say the tax argument is a linchpin of their legal case in defense of the health care overhaul and its individual mandate, now being challenged in court by more than 20 states and several private organizations.

Since it is up to the Congress to decide initially upon the factual and legal bases for legislation and not for the courts later to go sniffing around for other bases should those relied upon fail, the Congress should be stuck with the bases it relies upon in passing legislation. A requirement that it articulate the bases in the body of the legislation would be a good step in this direction. Ditto the president and executive orders. Such a process might even help to wean our CongressCritters from passing 2,000+ page legislation without reading it and at least attempting in good faith to understand it.

As noted here:

The debate over whether the courts are the final word on the Constitution is more than 200 years old. The debate over whether they are the sole arbiter of constitutionality is extremely recent and extremely silly.

But it’s also necessary because too many politicians — in both parties — have abdicated their most solemn duty: to support and defend the U.S. Constitution. George W. Bush signed campaign-finance reform even though he thought much of it was unconstitutional. Nancy Pelosi thinks the Constitution has as much relevance as a pet rock. When asked if the health-care bill was constitutional, her perpetually wide-open eyes grew perceptibly wider as she incredulously asked, “Are you serious?”

The real issue is quite simple. If more politicians were faithful to the Constitution, the government would be restrained. And restraining government is “weird,” “wacky,” and “dangerous” to so many liberals today.


President Obama and many at his end of the political spectrum are unhappy with the Constitution because its limitations on governmental power seem to them outdated and excessive. During the presidential campaign, Senator Obama lamented:

The Supreme Court never ventured into the issues of redistribution of wealth and sort of more basic issues of political and economic justice in this society. And to that extent, as radical as I think people tried to characterize the Warren Court, it wasn’t that radical. It didn’t break free from the essential constraints that were placed by the founding fathers in the Constitution, as least as it’s been interpreted, and Warren Court interpreted in the same way that, generally, the Constitution is a charter of negative liberties, says what the states can’t do to you, says what the federal government can’t do to you, but it doesn’t say what the federal government or the state government must do on your behalf. And that hasn’t shifted.

Consider what Professor Goodwin Liu, one of President Obama’s dream (and my nightmare) judicial appointees, stated in a Yale Law Journal article abstracted here and noted here:

In his article titled, “Education, Equality, and National Citizenship,” Liu argues, “the Fourteenth Amendment authorizes and obligates Congress to ensure a meaningful floor of educational opportunity throughout the nation.” Liu argues that the guarantee of citizenship in the 14th does more than confer legal status, due process, and equal protection under law to the former slaves — “it obligates the national government to secure the full membership, effective participation, and equal dignity of all citizens in the national community.”

That’s code for the feds must provide health care, child care, job training, and other “rights.”

The key words, of course, are “authorizes” and “obligates Congress.” To Mr. Obama, Liu is nothing less than a constitutional genius for having found previously indiscernible meaning in the Constitution. Such a “break” from constitutional “constraints” would take the federal government to the next level, enabling it to pronounce positive rights and wield unlimited power over the states and the people.


Whoopee! If there is sufficient popular support for changes to the Constitution, the Constitution itself provides the procedure. President Obama and Professor Liu seek to nullify those procedures and to implement others, quite different and more to their liking. That process has already gone way too far.

The United States Constitution is a precious thing. It is in a sense a “living document” but not in the sense that the words are used by President Obama, Professor Liu and others of their persuasion: it is a “living document” in the sense that they want to kill it; were it already dead, they would have no need to do so.

The Supreme Court is ultimate guardian of the Constitution but does not give advisory opinions — it decides actual cases and controversies after they arise. Sometimes long after. The federal — as well as the state — legislatures and executives must respect and abide by the Constitution to the best of their abilities, and that requires thinking about the constitutional implications far more often and far more deeply than they do — not with a view to evading or eviscerating them but with a view to abiding by them.


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