All Lawmaking Power Belongs to Congress
All Lawmaking Power Belongs to CongressIf there were one principle the Founders wanted to make clearly understood in their new system of government it was that the power to make law would no longer belong to a king or dictator or a group of government workers, but would actually belong to those whom the people themselves have elected to office for that very purpose. They also made clear that once the people assign this power to the elected officials, those elected officials could not delegate such power to anyone, especially to those who were unelected. It remained with the elected officials until the people took it back. As if to emphasize this point, the Founders made this the subject of the very first sentence in Article One of the Constitution, which says: "All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." (Article. I, Section 1, Clause 1) As with nearly every other provision of the Constitution written by "We, the people", this provision affirms a particular right of the people. It announces to the whole world that the American people do not consider themselves subject to any dictate or so-called law which has not been put through the law-making process in Congress, which is made up of the people's freely elected representatives and who have been given very specific and limited direction concerning what kind of laws they may make. As originally conceived, the American lawmaking procedure was just about as foolproof as the Founders could make it. Their legacy to future generations included a series of highly significant guidelines for Congress. Because a number of these have been seriously eroded in our day, it might be well to briefly review their suggestions.
Federal Laws Should Be Few in NumberMadison wrote: "The powers delegated by the proposed constitution to the federal government are few and defined." It turns out that the number of assigned areas of lawmaking was about twenty. Article 1, Section 8 of the Constitution lists about twenty areas in which Congress is authorized to make law. It should be noted also that Article II specifies the president may function in only six areas of responsibility and Article III limits the jurisdiction of the federal courts to eleven kinds of cases. Americans would do well to remember these numbers, 20-6-11. Those are "few and defined" powers. Jefferson followed this policy when he was President. On one occasion he wrote: "The path we have to pursue is so quiet that we have nothing scarcely to propose [to Congress]. A noiseless course, not meddling with the affairs of others, unattractive of notice, is a mark that society is going on in happiness." Imagine Congress convening in Washington and the President telling them that he doesn't know of a single new law needed to make the system run more smoothly. The Founders appear to have subscribed to the motto: "If it works, don't fix it." Unfortunately, today many governmental agencies feel that they must continually propose a long agenda of new laws in order to give some reason to justify their existence.
Each Law Should Be Written in Simple, Non-Technical LanguageEven though Jefferson was himself a lawyer, he knew that the common people must be able to clearly understand the law they were required to live by. Said he:
- "Laws are made for men of ordinary understanding, and should therefore be construed by the ordinary rules of common sense. Their meaning is not to be sought for in metaphysical subtleties which make anything mean everything or nothing, at pleasure."
The House to Scrutinize Proposed Laws as the Representatives of the PeopleOne can hardly imagine a Congressman going to Washington today with the express idea of protecting the rights of the people and keeping the power-hungry arm of the federal government within its Constitutionally dictated confines. Yet that is precisely the role of a Congressman. Oliver Wolcott of Connecticut stated:
- "The Representatives are to be elected by the people at large. They will therefore be the guardians of the rights of the great body of the citizens. So well guarded is this Constitution throughout, that it seems impossible that the rights either of the states or of the people should be destroyed."
The Senate to Scrutinize New Laws as the Representatives of the StatesOriginally , U. S. Senators were elected by state legislators with the express purpose to preserve states' rights and to protect the states from the power-seeking tentacles of the federal government. As Charles C. Pinckney of South Carolina said:
- "The Senate will be elected by the state legislatures, and represent the states in their political capacity; and thus each branch [the House and the Senate] will form a proper and independent check on the other, and the legislative power will be advantageously balanced."
The President Scrutinizes New Laws from a National ViewpointThe Founders' lawmaking process included the presenting of proposed laws to the President for his approval. Here was a chief executive who not only is elected from throughout the entire nation but will have to enforce any future law. Notice, also, that the President was given the power only to veto a law, not to make a law. He could only attempt to negate what Congress does. James Wilson of Pennsylvania said:
- "He will, under this Constitution, be placed in office as the President of the whole Union, and will be chosen in such a manner that he may be justly styled the man of the people. Being elected by the different parts of the United States, he will consider himself as not particularly interested for any one of them, but will watch over the whole with paternal care and affection.... I consider it as a very important advantage, that such a man must have every law presented to him, before it can become binding on the United States."
The Courts Must Scrutinize New Laws in Terms of the ConstitutionIf the validity of a law is challenged, then it is to be scrutinized by the federal courts to make certain that it conforms with the requirements of the Constitution. As is the case with the executive branch, so also the judicial branch has only negative powers concerning any law passed by Congress. This was to be done using the Constitution and the original intent of the Founders as fundamental guides in their decisions. The courts are not authorized to make new law. Alexander Hamilton summarized the view of the Founders:
- "The courts were designed to be an intermediate body between the people and the legislature in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges as, a fundamental law. It therefore belongs to them to ascertain its meaning as well as the meaning of any particular act proceeding from the legislative body."