Constitutional Lawmaking: The Founders' Vision of Limited Government

Constitutional Lawmaking: The Founders' Vision of Limited Government

Imagine the dawn of a new nation, where the framers of a constitution hold in their hands the power to create a government unlike any the world has ever seen. A government that derives its power from the people, while preserving the sovereignty of existing state governments. This was the reality of the Constitutional Convention of 1787. A monumental compromise at the Convention highlights the mechanism that made this extraordinary system possible. It blended the strength of a national government with the autonomy of state governments. At its core, it reaffirmed that the true source of all lawmaking power is in the people themselves, as expressed through their elected representatives. The genius of this remarkable system is partly captured in Article I, Section 1 of the United States Constitution.

"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."

This concise sentence that opens the world’s oldest constitution underscores the Founders' belief that every citizen has the right to be free from any federal law unless it is carefully considered and endorsed by a majority of the people's elected representatives. The structure of the third amendment illustrates how the founders intended their system to work. Let’s take a look at the wording of this often overlooked amendment.

"No soldier shall, in time of peace, be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law."

It may seem unlikely today that we'd be asked to quarter soldiers in our homes, but this amendment encapsulates two fundamental principles. First, it underscores the sanctity of personal property and emphasizes that the government cannot deprive us of life, liberty, or property without our consent. Second, it highlights the process through which we collectively give our consent in society. In this case, if it were necessary for citizens to house soldiers, a law would need to be passed by the people’s duly elected representatives and not by the president, the Supreme Court, or any other department of the federal government. This reinforces the wisdom of the Founders in vesting "all [law-making] powers... in a Congress of the United States." In essence, by collectively empowering Congress to declare war, we also grant consent to the possibility of quartering troops in our homes during a war emergency, provided it is governed by law. This provision ensures that any bill affecting our life, liberty, and property undergoes thorough deliberation by our elected representatives before becoming law.

Federal Laws Should Be Few and Simple

Since the states came together to create a national government with limited powers delegated to a Congress, a President, and a Judiciary, it's vital to understand that the sole authority for making laws was entrusted to Congress. This means that neither the President nor the Supreme Court was given authority to enact laws. It should further be noted that while Congress was given all lawmaking authority, they were expressly limited to certain areas of legislation as outlined in Article I, Section 8. James Madison emphasized this limitation during the ratifying debates:

"The powers delegated by the proposed Constitution to the Federal Government are few and defined. Those which are to remain in the State Governments are numerous and indefinite. The former will be exercised principally on external objects, such as war, peace, negotiation, and foreign commerce. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people; and the internal order, improvement, and prosperity of the State." (Federalist 45)

In essence, Congress was primarily given authority in external matters such as war, peace, negotiations, and foreign commerce. State governments, on the other hand, are responsible for most issues concerning citizens' lives, liberties, and properties, as well as their overall well-being.

Thomas Jefferson echoed this limited scope of responsibility during his presidency.

"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." (From Thomas Jefferson to Thomas Cooper, 29 November 1802)

He further advocated for simplicity in the laws passed by Congress, emphasizing that laws should be designed for the common understanding of ordinary people.

"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 in metaphysical subtleties which make anything mean everything or nothing, at pleasure."

He believed that laws should be written in plain, common sense language, rather than complicated legal jargon that could make anything mean everything or nothing.

The Roles of the House and the Senate

Through much deliberation and compromise, the Founders created a system where the House of Representatives was elected directly by the people and would serve as guardians of the rights of the ordinary citizens. Simultaneously, representatives in the Senate were originally elected by the state legislatures and represented the interests of the several states. This new political creature was designed to represent the interests of both the people and the states. Regrettably, this ingenious system was disrupted with the adoption of the Seventeenth Amendment in 1913. This left the states without a voice in Congress because senators are now elected by the people, essentially making the Senate another House of Representatives.

Breaking Down Constitutional Boundaries

The Founders designed the Constitution to grant specific powers to a national government, while simultaneously preserving the sovereignty of the individual States. Nevertheless, even in the early years of the United States, the three branches of the national government showed a tendency to test these boundaries and encroach upon state jurisdictions.

Over time, Congress passed laws that preempted state powers, and the executive branch began gaining administrative control over state affairs. The judiciary also began venturing into areas reserved to Congress and the States. All this occurred despite Article I, Section 1's clear declaration that Congress holds exclusive authority to create federal laws, limited by enumerated powers within the Constitution.

"If you don't act, we will"

The Founders had meticulously structured the Constitution to ensure a clear separation of national and state powers. However, nationally elected officials adopted a shrewd strategy to pull state power to the national level. When they perceived issues inadequately addressed within the states, they declared their intent to intervene, even in the absence of constitutional authority. They introduced various programs coupled with stark ultimatums: "If you don't act, we will." This approach led to substantial federal funds being allocated to the states, often tied to a web of accompanying regulations. The belief was that states were falling short of federal standards, leading to a cascade of programs to “solve” diverse issues, including safety regulations, land reform, environmental issues, healthcare, education, unemployment, welfare, and more.

While many of these programs had commendable objectives, they were being implemented with a top-down approach and without constitutional authority. What stands out in all of this is that these programs were being implemented largely without the consent of the people. In practice, these unconstitutional programs turned out to cost the American people dearly by implementing them at an inappropriate level of government. Once established, however, these programs took on a life of their own, outside the control or influence of the American people.

Executive Lawmaking

The executive branch's gradual expansion into the domain of lawmaking is a significant development. Since the establishment of the Interstate Commerce Commission in 1887, government agencies have been issuing what's known as "administrative law," which holds the same legal weight as laws passed by Congress. Congress has also passed broad enabling acts, granting the executive branch the authority to issue "executive orders." These executive orders are enforced as if they were laws, despite never receiving formal approval from Congress and being published in the Federal Register. Nowadays, more laws are imposed on the American people through these unconstitutional and irregular means than are passed by Congress.

The concept of the President issuing executive orders as enforceable laws has undergone several stages:

  1. The Constitutional Stage: Initially, executive orders were issued by the President or cabinet officers to manage their departments. These orders were purely administrative and only impacted the government's internal operations, without affecting the public as congressional laws do. Over time, the number and scope of these executive orders increased, extending their influence beyond the government's internal functions and into broader society. This shift marked the transition from the constitutional stage to the "strong President" stage.
  2. The "Strong President" Stage: The change to this stage is evident when examining the number of executive orders issued by different Presidents. For instance, Presidents like Cleveland and McKinley issued relatively few executive orders, but President Theodore Roosevelt dramatically altered the landscape by issuing over a thousand. This marked the beginning of Presidents viewing executive orders as a tool to assert the power of the executive branch to take "independent action." Theodore Roosevelt, in particular, believed he could do anything not explicitly prohibited by the Constitution, broadening the authority of the presidential office.
  3. The World War I Stage: During World War I, President Woodrow Wilson employed the war powers to introduce administrative law and executive orders into various aspects of American life. These included entities like the Food Administration, Grain Corporation, War Trade Board, and Committee on Public Information, all established through executive orders without individual authorization from Congress. The strict interpretation of Article I, Section 1, has never been the same since.
  4. The New Deal Stage: This stage encompassed both the Great Depression and World War II. The use of executive orders became so extensive that legislative powers stemming from the President and the executive branch became a permanent fixture in American governance. The sheer volume of executive orders led Congress to pass the Federal Register Act in 1935, mandating their publication in the Federal Register and their archival with the U.S. Archives. By 1985, over 12,000 executive orders had been issued. While these orders often cited some authority for their issuance, many would seem incomprehensible to the founders.

    In the early 1930s, Congress began monitoring agencies to ensure that executive orders aligned with its original intent. However, in 1984, the Supreme Court ruled that having Congress oversee the administration of the executive branch violated the separation-of-powers doctrine. (Bowsher v. Synar) However, the Supreme Court has failed to address the overreach of the Executive Branch into the legislative arena.

Judicial Involvement in Lawmaking

When the judiciary steps into the legislative realm, it's often called "judicial activism." This comes in two forms: "judicial legislation," where the judiciary takes power from the legislative branch, and "judicial administration," where it infringes on the executive branch's authority. This is often justified by citing necessity, as federal courts may argue that the states or Congress aren't adequately addressing social needs, prompting judicial intervention. However, this reasoning would have surprised the Founders because the Supreme Court has repeatedly used it, claiming it's just implementing "established public policy." Relying on established public policy as a basis for judicial activism is perilous because past policies, like slavery, were once considered "established public policy." Policies are set by Congress, not the courts. The judiciary's role concerns "laws" and "rights," not policies.

The trend of judicial activism has been on the rise for years but gained significant momentum during Chief Justice Earl Warren's tenure. The court began making decisions based on "social necessity" and "established public policy" while overturning numerous previous Supreme Court rulings. It also expanded into administrative responsibilities, overseeing state school systems, prisons, and employment policies.

Even earlier, the court laid the foundation for what became an effective amendment to the Constitution in the 1936 Butler case. The interpretation of "general welfare" expanded to include special welfare, leading to a substantial increase in the federal budget.

During the Warren court era, the court curtailed the states' authority to address subversion and internal security, asserting, without congressional action, that the federal government intended to take control. It effectively removed residency requirements for voters in the states, mandated the election of state senators based on population instead of senatorial districts, imposed federal procedural standards on local police, upheld executive orders imposing federal standards on air and water quality, speed limits, safety regulations, and health standards in the states. This was a significant intrusion into the exclusive domain of the states. Much of this judicial activism was driven by well-intentioned moral objectives. However, the method of delivery and administration was flawed, leading to corrosive and corrupting effects on the constitutional system.

This rapid encroachment of unconstitutional authority by the courts was anticipated by Thomas Jefferson. He detected hints of it even in his own time and perceived it as a gravitational force pulling power away from the states and concentrating it in Washington. In 1821, he articulated this concern:

"It has long, however, been my opinion ... that the germ of dissolution of our federal government is in the constitution of the federal judiciary ... working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief over the field of jurisdiction, until all shall be usurped from the States, and the government of all be consolidated into one. To this I am opposed; because when all government shall be drawn to Washington as the center of all power, it will render powerless the checks provided ... and will become as venal and oppressive as the government [of George III] from which we separated."

Two Safeguards

The Founders implemented two safeguards to shield the people from unconstitutional actions by either Congress or the courts.

The first safeguard empowered state legislatures, under Article V of the Constitution, to reverse decisions made by Congress or the courts. They could do this by calling for a constitutional convention to propose amendments. This process was intentionally designed to be beyond the influence of Congress or the courts. As Alexander Hamilton made clear:

"In the fifth article of the plan [in the Constitution], the Congress is required, upon application by two-thirds of the state legislatures, to convene a convention to propose amendments. These amendments, when ratified by three-fourths of the states' legislatures or conventions, become an integral part of the Constitution."

Hamilton emphasized that the language of this article is mandatory, leaving no room for discretion on Congress's part. He had confidence in state legislatures to act as a check against federal overreach.

The second safeguard was the common-law jury, which retained its full authority until 1895 when the Supreme Court limited its powers. In its original form, the American jury had the power to not only determine the facts of a case but also to judge the law itself. This meant that if a jury believed a particular law was unjust or unconstitutional, they could deliver a verdict of "not guilty," regardless of what Congress or the courts had decreed.

The Founders considered this jury power as the people's ultimate defense, a last resort against abusive government. Chief Justice Theophilus Parsons of the Supreme Court of Massachusetts explained this concept:

"The people themselves have the means to resist usurpation without resorting to armed conflict. An act of usurpation is not binding or legal, and any individual can be justified in resisting it. If the general government considers him a criminal, only his fellow citizens can convict him. They serve as his jury, and if they find him innocent, the powers of Congress cannot harm him. And they will undoubtedly declare him innocent if the law he resisted was an act of usurpation."

As noted, in 1895, the Supreme Court removed the authority of American juries to judge the law. This responsibility became the exclusive domain of the courts. While the court had always been allowed to interpret the law for the jury and provide guidance on how the law should be applied in a particular case, this interpretation was advisory. Jurors were informed that they could make their own decisions, even if they disagreed with the court's interpretation.

Since 1895, jurors have been obliged to accept the law as explained in the judge's instructions. This arrangement has allowed judges to sway the jury's decision-making, potentially leading to different outcomes than if the jury had authority over both the law and the facts.


Article I, Section 1 of the United States Constitution stands as a pivotal clause that underscores the Founders' commitment to preserving a system of government that derives its power from the people. This section grants exclusive authority to a national Congress, representing the people through their elected state and national representatives, to create federal laws. This allocation of lawmaking power was designed with meticulous care by the Founders to safeguard individual rights and maintain the sovereignty of state governments, ensuring that any federal law is the result of deliberation and approval by duly elected representatives.

In the face of national challenges, it is crucial to revisit and reaffirm the principles of limited government, respect for individual rights, and adherence to the system of checks and balances enshrined in the Constitution. Only by doing so can we hope to protect the rights and freedoms of all citizens.


Oct 24, 2023
Scott Root

Good article. Too bad our legislators do not take our Constitution seriously and deem all the errors repealed and void.

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