America’s Heritage: Constitutional Liberty
by Herbert W. Titus and Gerald R. Thompson
LEGISLATIVE AND EXECUTIVE POWERS
So Moses came and called the elders of the people, and set before them all these words which the Lord had commanded him. And all the people answered together and said, “All that the Lord has spoken we will do!” And Moses brought back the words of the people to the Lord. . . . And when [God] had finished speaking with him upon Mount Sinai, He gave Moses the two tablets of the testimony, tablets of stone, written by the finger of God. [Exodus 19:7-8; 31:18]
Now Moses used to take the tent and pitch it outside the camp, a good distance from the camp, and he called it the tent of meeting. And it came about, that everyone who sought the Lord would go out to the tent of meeting which was outside the camp. . . . [W]henever Moses entered the tent, the pillar of cloud would descend and stand at the entrance of the tent; and the Lord would speak with Moses. . . . Thus the Lord used to speak to Moses face to face, just as a man speaks to his friend. [Exodus 33:7,9,11]
The first type of civil power delegated in the U.S. Constitution, and the first to be examined in detail here, is legislative power. Whereas the executive power is concerned with the enforcement of laws, and the judicial power concerns the judgment of laws, the legislative power is concerned with the creation or pronouncement of laws. The legislative power is no less under the laws of nature and nature’s God for this reason, however. The principal function of a legislature is to bear the law to the people within the legal framework established by God. For the purpose of this analysis, we will first review the legal context for the exercise of civil power, then examine the nature of law, and then ascertain the nature of legislative power within this context.
In spite of the sparse evidence for the exercise of actual law-making power in ancient Israel, the Bible does establish a framework for the exercise of legislative power for all nations. The foremost characteristic of legislative power is that it must pertain to the making of laws, in two respects. First, man’s laws must conform to, and affirm, the law of nature in every subject area addressed by a legislative act. Second, man’s law must conform to the nature of all law. There is a law of nature of what a “law” is, and legislative enactments which fail to meet the criteria for the existence of a “law” are not law at all.
Legislative power is by definition constrained by a pre-existing legal order, called the law of nature, which cannot be abrogated. For example, a legislature has no authority to pass a law changing the law of gravity. For the same reason, and to the same extent, no legislature has authority to decriminalize murder. The laws of murder and gravity are equally part of the law of nature, which no man can change. William Blackstone, in his 1765 Commentaries, said this:
Man, considered as a creature, must necessarily be subject to the laws of his Creator, for he is entirely a dependent being. . . . And, consequently, as man depends absolutely upon his Maker for every thing, it is necessary that he should in all points conform to his Maker’s will. This will of his Maker is called the law of Nature. . . . This law of nature being coeval with mankind, and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe, in all countries, and at all times: No human laws are of any validity if contrary to this; and such of them as are valid derive all their force and all their authority, mediately or immediately, from this original.
Blackstone’s comments not only describe the subservience of man’s law to God’s law, they also describe the nature of law itself, which forms the pattern after which man’s law must follow. As revealed in the Bible, the law of nature is created by God, revealed by God, and imposed by God. The attributes of all laws of nature, and the pattern for all human laws, is that they are fixed in time, uniform as to person, and universal as to place. We will now examine each of these in turn.
As Blackstone said, the law of nature is the will of God impressed upon the creation when He made it. All of creation bears witness of the will of the Creator. Genesis 1 gives the account of the world’s creation and defines the law of physical objects, such as verses 16-18, which describe the law of the heavenly lights. Genesis 1:28 similarly defines the law of man’s dominion over the earth. Job 38:4-5,33 and a host of other scriptures all indicate that God made the world, and determined how it would be governed. The law of nature came from God, and none other, because He is the only uncreated Creator.
The law of nature has also been revealed by God, both in the observable creation and in the Bible. Psalm 19:1-2 declares that, “The heavens are telling of the glory of God; and their expanse is declaring the work of His hands. Day to day pours forth speech, and night to night reveals knowledge.” Romans 1:20 says: “For since the creation of the world His invisible attributes, His eternal power and divine nature, have been clearly seen, being understood through what has been made.” But, the revelation of God’s will in the created order is not limited to a knowledge of the divine personality. It includes a knowledge of God’s law, according to Romans 2:14-15:
For when Gentiles who do not have the Law do instinctively the things of the law, these, not having the Law, are a law unto themselves, in that they show the work of the Law written in their hearts, their conscience bearing witness, and their thoughts alternately accusing or else defending them.
And, of course, God’s law is revealed in the Bible. The “Law” mentioned in Romans 2:14-15 refers to parts of the Old Testament. The two forms of revelation of God’s law are sometimes called “General Revelation” and “Special Revelation.” Blackstone referred to the two forms of God’s revelation as the law of nature and the divine law. In the Declaration of Independence, and this book, they are referred to as “the laws of nature and nature’s God.”
Just as God created and revealed His law for all men, so He alone has imposed it upon all men. The first characteristic of this imposition is that law is fixed, not relative in time. Psalm 148:5-6 proclaims, “Let them praise the name of the Lord, for He commanded and they were created. He has also established them forever and ever; He has made a decree which will not pass away.” Matthew 5:18-19 affirms:
For truly I say to you, until heaven and earth pass away, not the smallest letter or stroke shall pass away from the Law, until all is accomplished. Whoever then annuls one of the least of these commandments, and so teaches others, shall be called least in the kingdom of heaven; but whoever keeps and teaches them, he shall be called great in the kingdom of heaven.
The second characteristic of God’s imposition of law is that it is uniform, not relative to person or circumstance. This is exemplified in the account of man’s fall in Genesis 3:11-13: the command not to eat of the tree of the knowledge of good and evil was given only in Adam’s presence (Genesis 2:16-17), but it applied to Eve as well.
Thirdly, God’s law is universal, not relative as to place. Indeed, Acts 17:26 says that God “made from one, every nation of mankind to live on all the face of the earth, having determined their appointed times, and the boundaries of their habitation.” Having created the whole earth, God’s law extends to all men.
The attributes of law can be illustrated by the law of sin and death and the law of life in Christ Jesus. God first created and revealed the law of sin and death in Genesis 2:16-17, prohibiting the man from eating of the tree of the knowledge of good and evil. This law was imposed on the whole creation, as indicated by Romans 5:12: “through one man sin entered into the world, and death . . . spread to all men.” Thus, the law of sin and death applies to all successive generations of men, is universal in its application (Romans 3:23), and is the same in every nation (John 3:16).
Similarly, the law of life in Christ Jesus was created by God before the foundation of the world (Ephesians 1:3-4), and revealed from the beginning (Hebrews 1:1-3). God imposed the law of life in Christ Jesus according to Romans 6:23, which law is fixed (Hebrews 13:8), uniform (John 14:6), and universal (John 11:25-26). Praise God that His free gift of salvation has been made available to all men without exception!
Man, who is made in the image of God, has been given authority to “rule over the earth.” Necessarily, man must promulgate laws to effectuate this rule. God’s image in man means he has the capacity to be a “mini-creator” after the pattern God has established. Man, when he makes laws to assist him in ruling over the earth, must conform his laws to the nature of all laws, as established by God. Accordingly, unless man’s law conforms to the standards of being fixed, uniform and universal, it is not law at all.
Since man makes laws to effectuate his rule over the earth according to God’s command, it may be said that the general purpose of human laws is to implement the laws of God among all men. In other words, God’s law is not just for Christians, but it is for all men. Indeed, 1 Timothy 1:9 states that “law is not made for a righteous man, but for those who are lawless and rebellious.” The specific purpose of human laws is to give sinners a knowledge of their sin, and so lead them to Christ, as indicated in Romans 3:9-23.
Similarly, God’s law is for every nation, for He is the creator of all nations (Acts 17:26 and Genesis 10:32-11:9). Many of the prophets such as Jeremiah were sent not to Israel alone, but to all the nations to proclaim the word of the Lord. See Jeremiah 1:5,10. And, it is evident from Romans 13:1-7 that civil rulers in every nation are to punish wrongdoing, according to standards of right and wrong set by God. Thus, it is no surprise that the Lord commands us to take the law of God to every creature (Mark 16:15-16) and to every nation (Matthew 28:18-20), for His gospel applies to every man.
Nonetheless, only God can create or alter the law of nature, and only God is eternal, governs everywhere, and rules all men. Thus, one may ask how man can pass rules which qualify as “law”. But, God does not require man to possess divine attributes. He merely requires man to follow the divine pattern, to the extent man has jurisdiction. Man’s laws do not have to be, and indeed cannot be, unalterable. The example of the law of the Medes and Persians, which could not be altered (see Daniel 6:8) is not the pattern to follow. Man is not called to legislate the law of nature, because that law proceeds solely from the will of the uncreated Creator.
Rather, man has been given liberty to choose the means to implement the law of nature. The perfect law of liberty, according to James 1:25, reckons a man as blessed when he is “an effectual doer,” that is, he puts into practice what he knows. God has established the immutable rules of conduct by which man is governed, but man has a choice as to the means used to effectuate those immutable rules. For example, God prescribes that men should exercise care not to harm their neighbor, but man prescribes speed limits on the highway, in order to effectuate God’s purpose. So long as man’s law is not destructive of the immutable purpose of God, he has complete liberty as to what level to set a speed limit at, or whether to have a specific speed limit at all.
It is within this context that the legislative power of the United States must be examined. Article I of the U.S. Constitution specifies that “All legislative Powers herein granted shall be vested in a Congress of the United States.” Yet, Article I does not define the term “legislative powers.” Rather, it presumes a framework for understanding legislative power based upon the law of nature. Thus, we will begin examining the American constitutional understanding of legislative power with that framework in mind.
The constitutional understanding of the nature of legislative power is traced from English legal experience. One of the earliest expositors of the nature of legislative power was Sir Edward Coke, who laid the groundwork for a legislature under law in the common law history of England. According to John C. H. Wu, in The Fountain of Justice,
At at time when political speculation was tending to exalt a sovereign person or body above the law, Coke had the insight and the courage to resort to the law of God and the law of nature. . . . In Calvin’s case, he declared that “the law of nature is part of the law of England,” that “the law of nature was before any judicial or municipal law,” and that “the law of nature is immutable.” . . . He said, “The law of nature is that which God at the time of creation of the nature of man infused into his heart, for his preservation and direction; and this is lex eterna, the moral law, called also the law of nature. And by this law written with the finger of God in the heart of man, were the people of God a long time governed, before the law was written by Moses, who was the first reporter or writer of law in the world.”
Sir Coke had also read Exodus 18, because he knew that Moses as judge had made known the laws and statutes of God before God ever gave him the Ten Commandments in writing. Moses was applying the law of God revealed in nature in Israel before the law of God had been revealed in writing. In Dr. Bonham’s case Coke laid down the law governing legislative power:
And it appears in our books, that in many cases, the common law will controul Acts of Parliament, and sometimes adjudge them to be utterly void: For when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will controul it, and adjudge such an Act to be void.
William Blackstone agreed with Coke, and further formulated that the law of nature defined what a “rule” of law was, setting the pattern for all human laws. “Municipal law [i.e., civil law] is properly defined to be ‘a rule of civil conduct prescribed by the supreme power in a state, commanding what is right, and prohibiting what is wrong.'” He then focused on the definition of a “rule” as “not a transient sudden order from a superior to or concerning a particular person; but something permanent, uniform, and universal.”
Blackstone also distinguished a rule from things which are not law, based upon this definition. A rule is not an “order,” because orders apply only to certain persons, whereas laws apply to all men generally. A rule is not “advice or counsel,” because the latter is only a matter of persuasion, whereas law is a matter of injunction, acting upon the unwilling as well as the willing. Neither is a rule the same as a “compact or agreement,” for the latter embodies a promise voluntarily given, whereas law is a command imposed.
The necessity of restricting legislative actions to the promulgation of rules was recognized early in American history. The framers of the U.S. Constitution were particularly concerned about the possibility that the English practice of issuing legislative orders would carry over to the United States. Thus, Article I, Section 9, Clause 3 prohibits Congress from passing any “Bill of Attainder or ex post facto Law.” The states are likewise restricted in Article I, Section 10, Clause 1.
Bills of attainder were legislative findings of criminal guiltiness directed at persons whom the executive chose not to prosecute, or who had escaped judgment for some other reason. Clearly, a bill of attainder was more in the nature of an order than a rule, because it applied only to specified individuals, not all men generally. Ex post facto laws were legislative enactments which made a past act wrongful, even though it was not wrongful at the time it was committed. Ex post facto laws were invariably passed for the purpose of being directed at the specific acts of certain individuals, else their retroactive effect would have been unnecessary. Hence, ex post facto laws also partook of the nature of an order, not a rule.
Although bills of attainder and ex post facto laws are not a current legislative problem, we nonetheless live in an age when Congress often enacts legislation which is not in the nature of a rule. Many modern national governmental functions are performed by an administrative agency which has the ability to promulgate regulations under statutory authorization. Congress, in granting this authorization, often enacts little more than a policy statement to be implemented by the agency. These policy statements are not in the nature of an order, but neither are they in the nature of law. Of course, a legislature is not supposed to enact orders, but it is supposed to enact laws.
For example, the Federal Communications Act of 1934 created the Federal Communications Commission (F.C.C.) to license and regulate radio and television broadcasting according to its determination of “the public interest, convenience, or necessity.” Under this Congressional mandate, the F.C.C. has promulgated a host of regulations dealing with such matters as chain broadcasting, radio frequency assignments, license transfers, ownership and placement of facilities, strength, type and direction of signal output, hours of operation, etc. In addition, the F.C.C. hears and decides all matters of dispute and application related to broadcasting, and as a branch of the executive department, has full capability to enforce its judgments.
The constitutional validity of the Federal Communications Act was litigated in the 1943 case of N.B.C. v. U.S. before the Supreme Court. The Court upheld the constitutionality of the Act based on its belief that “radio is inherently not available to all . . . and that is why, unlike other modes of expression, it is subject to governmental regulation.” The Court believed that the purpose of the Act was “to define broad areas of regulation and to establish standards for judgment adequately related in their application to the problems to be solved.” The problems of broadcast regulation were assumed to be beyond the capacity of Congress to administer itself, hence, the need for the F.C.C.
Yet, the major problem with the Act was not addressed by the Court. That is, the Act is not in the nature of a law: matters of “public interest, convenience, or necessity” are not fixed, uniform, or universal. What is convenient today may not be so tomorrow, what is convenient here may not be convenient there, what the public interest is with respect to broadcast networks may be different compared to independent stations, and the degree of necessity for any regulation is by nature a matter of politics, not law. Instead of enacting a law, Congress has passed what may be compared to a frame of government – a “fourth branch” of the national government. And the F.C.C. is just the tip of the iceberg – most federal administrative agencies have a similarly broad mandate to regulate as they see fit.
Let us now turn to an examination of executive power, beginning with its biblical foundation:
Then Amalek came and fought against Israel at Rephidim. So Moses said to Joshua, “Choose men for us, and go out, fight against Amalek. Tomorrow I will station myself on top of the hill with the staff of God in my hand.” And Joshua did as Moses told him, and fought against Amalek; and Moses, Aaron, and Hur went up to the top of the hill. So it came about, when Moses held his hand up, that Israel prevailed, and when he let his hand down, Amalek prevailed. But Moses’ hands were heavy. Then they took a stone and put it under him, and he sat on it; and Aaron and Hur supported his hands, one on one side and one on the other. Thus his hands were steady until the sun set. So Joshua overwhelmed Amalek and his people with the edge of the sword. Exodus 17:8-13.
The example of Moses and the judges and kings after him illustrate what executive power is. The primary significance of executive power comes from the word “execute,” that is, the wielding of power under the law to perform or enforce the law. Executive power includes the administration of government functions, police regulation, foreign policy, and national defense. Indeed, the authority of commanding the armed forces is a primary indication that executive, rather than judicial or legislative, power is being exercised.
In addition to these kinds of “subject matter” attributes of executive power, there are three principles describing the nature, or purpose, of executive power which can be derived from biblical examples. First, the executive has no power to promulgate rules, that is, to make or change laws. This is illustrated in the case of Saul, who attempted to change the rules of war which bound him. Deuteronomy 20:16-17 bound the king to utterly destroy the Amalekites, but Saul, in 1 Samuel 15:9, spared the king of the Amalekites and the best of the sheep. Consequently, Saul was judged as having violated the law, which he had no power to alter. The executive power is distinguished from legislative power in this respect.
Second, the executive power is initiative, not responsive. That is, the executive does not wait for someone to ask him to wield power, he simply wields it whenever he sees fit. God, in His executive capacity as the divine prosecutor, came looking for Adam when he had sinned, rather than waiting for the man to come to Him. Similarly, Saul “summoned the people” in 1 Samuel 15:4 to go out to war, following the example of Moses and Joshua. Saul, as leader of the army, did not wait for the people to ask him to wage war. This is in contrast to judicial power, which is responsive in nature.
Third, the executive has some lawful discretion in the performance and enforcement of the law. Not every case of possible, or even probable, wrongdoing must be prosecuted by the executive, but only those cases which are capable of being brought to a successful prosecution, depending on the evidence available, etc. The executive also has complete discretion in appointing officers in the government. And, as illustrated by Solomon’s judgment in 1 Kings 3, wherein he ordered a baby to be cut in two, but instead gave him to his mother, the executive has a choice of means in executing the law. This element of executive discretion is again contrasted with judicial power, which is strictly non-discretionary, as we will examine in the next chapter.
Let us now examine the executive power vested in the President of the United States by Article II of the Constitution. Section 1 of Article II describes the qualifications for office, the manner and term of election, and the executive oath of office. Section 2 of Article II grants to the President the power to be the Commander in Chief of the armed forces, and the power to make treaties with other nations and appoint ambassadors, etc. These powers are in accord with the law of nature of executive power, that is, foreign policy and national defense. In addition to the general grant of executive power in Article II, Section 1, the President is also charged to “take Care that the Laws be faithfully executed” in Section 3 of that Article.
Yet, nowhere in Article II, or elsewhere in the Constitution, is “executive power” defined. Rather, the framers assumed that people knew what executive power was, because it was defined by the law of nature.
This understanding of the Constitution is still occasionally evident today. For example, in the 1952 case of Youngstown Sheet & Tube, the Supreme Court reviewed an action by President Truman to seize the nation’s steel mills to compel them to produce steel. After examining the text of the President’s order effecting the seizure, the majority of the Court decided that the order was in the nature of a rule, not an order. Consequently, the order was found to be unconstitutional, not because it was beyond the power of the national government through Congress, but because it was a legislative act promulgated by the executive branch. Thus, the Court reasoned its conclusion consistent with the law of the nature of executive power which prohibits an executive from promulgating rules.
The second principle of the law of the nature of executive power is that executive power is initiative, not responsive. Justice Vinson, writing a separate opinion in Youngstown Sheet & Tube, dissented from the majority’s holding partially on that basis. That is, he saw President Truman’s action as initiative in nature, therefore consistent with past executive practice in producing war materials (remember that the context of the case was during the Korean War). Apparently, Justice Vinson thought it was sufficient that the President was not exercising judicial power for him to seize the steel mills.
The third principle of the law of the nature of executive power was discussed in the case of Marbury v. Madison, namely, that there is a distinction between the law governing executive power, and executive discretion. In that case, Marbury had been named a justice of the peace for the District of Columbia by outgoing President John Adams, but before his commission was delivered, Thomas Jefferson took office. James Madison, Secretary of State under Jefferson, was directed to disregard the commission, and Marbury sued to compel its delivery. One of the principle issues was whether the President was under a legal obligation to deliver the commission, or whether it was a matter of executive political discretion.
Chief Justice Marshall, writing for the Supreme Court, acknowledged that the executive office, by nature, was conferred with both political and legal authority. He reasoned that, “the President is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience.” In such matters, there can exist “no power to control that discretion.” However, the President may be directed to perform certain acts by law or the Constitution, which he is under a legal obligation to perform, “and cannot at his discretion sport away.”
The upshot of Marshall’s analysis is that law and politics differ in kind, not degree, and this difference is itself defined by law. That is, the exercise of discretion and the discharge of obligation are two fundamentally different things. The President cannot discharge his duties on a discretionary basis, and he cannot be constrained in his exercise of discretion. But the question of whether executive obligation or discretion applies in any given case is determined by the terms of the Constitution and applicable law, not past practice, the need of the moment, or the acquiescence of others. The exercise of discretion as to whether to act, when the executive is under a duty to act, is unlawful.
* Copyright © 1987, 2006 Herbert W. Titus and Gerald R. Thompson. Used with permission.