I – The Federal System

I.     The law of the nature of authority.

A.     The Delegation Principle. All human authority is delegated, not inherent.

1.     All authority belongs to God as the uncreated Creator. Genesis 1:27; Jeremiah 18:6-10, Ps. 24:1.

2.     Some authority has been delegated to men. Romans 13:1 states that all authority is established, or delegated, by God. Also see Col. 2:10.

3.     What hasn’t been delegated, God reserves for Himself, including the right to destroy, His creation. Ps. 110:5-6, 2 Pet. 3:5-7; Rev. 19:15.

B.     The Limitation Principle. All human authority is limited, not absolute.

1.     Man has only the authority God gives him, since no man is the creator of himself or another. See, Matthew 28:18-20, or Gen. 9:3 (eating meat) or 2 Sam. 24:2,10 (taking census).

2.     Man’s authority is limited by the terms of the delegation. See, e.g., Genesis 1:28 & Gen. 2:7 which did not give anyone authority to rule over another human being. “Thing” vs. “Being.”

3.     Anyone who defines his own jurisdiction will claim too much, which is contempt. Gen 4:15, Deut. 17:9-13.

C.     The Diffusion Principle. Human authority is diffuse, not concentrated.

1.     God has not given all human authority to any one individual or group of people, nor has He covenanted with men only once.

2.     God has distributed authority among men severally as He wills, so that human authority is diffuse and disparate.

3.     Since no man has inherent authority to rule another, all authority must be justified by an express delegation (per covenant principles).

II.     Authority of the People to Institute a Government.

A.     Rights are endowed by the Creator.

B.     Governments are not endowed or imposed by God.

1.     Israel: God appointed; people confirmed (Saul, David, etc.).

2.     God waits for man to act lawfully – He does not usurp the authority of the people.

3.     The example of Joash. 2 Chr 22:10-12; 23:11,16,20.

– Athaliah acted unlawfully to seize the kingdom, yet God did not interpose. Rather, He waited for Israel to restore the rightful ruler.

C.     Governments are instituted among men.

1.     The people have an unalienable right to institute their own government.

2.     The civil ruler has no authority to adopt a new government (rulers propose, people ratify).

3.     Mode of Ratification (was like that of a covenant).

a.     Lonang principle: rulers propose, people ratify.

– Saul: 1 Sam 10:1,24.

– David: 1 Sam 16:13, 2 Sam 2:4; 5:3.

b.     C.J. Marshall (McCulloch): same.

III.     Authority under the Constitution.

A.     Authority of the People. All federal authority is delegated, not inherent.

1.     All authority belongs to the people.

2.     Some authority has been delegated to government.

3.     What hasn’t been delegated, the people reserved for themselves.

9th Amend: The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.

10th Amend: 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.

B.     Enumerated Powers. All federal authority is limited, not absolute.

1.     Federal gov’t has only the authority the people give it.

2.     Federal authority is limited by the constitutional text. The Constitution grants only those powers to Congress which its text expressly enumerates. No legislative act contrary to the Constitution can be valid. “We know of no rule for construing the extent of such powers,
other than is given by language of the instrument which confers them, taken in connection with the purposes for which they were conferred.” Gibbons v. Ogden (omitted from many casebooks).

3.     Public officials do not define their own powers.

There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is executed, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would
be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid. The
Federalist #78.

C.     Separation of Powers. Federal authority is diffuse, not concentrated.

1.     No public official has absolute power.

2.     The separation of powers is mandatory.

3.     The authority to regulate must always be justified.

IV.     History of the Bank of the United States.

– Proposed by Hamilton in 1790, passed in Senate (half of which attended Convention)

– Opposed by Madison (in House): 1) incorporation of bank not among enumerated powers; and 2) bank was only convenient, not “necessary.”

Preamble to bill: The Bank “might be conceived to be conducive to the successful conducting of the finances, or might be conceived to tend to give facility to the obtaining of loans.”

– Nevertheless, House passed the bill.

– Pres. Washington asked cabinet to address constitutional issues. AG Edmund Randolph & Sec’y/State Jefferson agreed w/ Madison.

– Hamilton’s defense: 1) Gov’t may employ any means applicable to attaining the ends of its powers; and 2) constitution grants implied, as well as express, powers.

The degree in which a measure is necessary, can never be a test of the legal right to adopt it. … The relation between the measure and the end, between the nature of the mean employed towards the execution of a power and the
object of that power, must be the criterion of constitutionality, not the more or less necessity or utility.

– Washington signed bill into law, which lapsed in 1811.

– Second Bank of U.S. chartered in 1815, Madison (as Pres.) approved bill (difficult experience in federal gov’t borrowing money from state banks).

– Opposition came from states, whose banks lost federal business.

V.     U.S. Constitution – Law or Politics?

A.     Constitution embodies covenant principles.

1.     Maryland’s view.

– Constitution => treaty btw. states, not a covenant by the people.

– States had ultimate sovereignty and could “pull out”.

2.     Marshall’s view: Constitution is a covenant, not a treaty.

a.     Embodiment of covenant principles.

– “we the people” => justification of authority. Only the people have power to constitute a government.

– people are party to the document => mutuality.

– one people/nation/”Union” => community.

– immutable rules => perpetuity.

B.     The law of the nature of a covenant.

1.     The Constitution is not like a statute.

a.     Not the “prolixity of a legal code.”

b.     Constitution specifies ends, not means. Ends => Object/purpose analysis.

c.     Ends are intended to be permanent. Means change: ends do not.

2.     Law v. Politics. Defined: Law/ends/absolutes/fixed meaning v. Politics/means/matters of degree/evolving standards.

a.     Though of political origin, the constitution embodies fundamental law.

b.     The Constitution is primarily a legal, not a political, document. i.e., object analysis is quintessentially a legal analysis.

c.     Matters of degree/politics do not guide constitutionsal interpretation.

3.     “It is a constitution we are expounding.” The nature of the document is special, and important to know to interpret it.

C.     The law of implied powers (means).

1.     Enumerated powers are construed according to their purpose. Purposes must be expressed or they do not exist – there are no implied purposes for Congressional power.

2.     The means to carry out the enumerated powers of Congress may be implied, if not expressly denied by the Constitution. However, these implied powers can never expand the scope of legitimate purposes of legislative power.

3.     Necessary and proper clause refers solely to means, not purposes. Congress has the power to make all laws necessary and proper for executing any enumerated power expressly granted to it.

VI.     Constitutional rules of interpretation.

A.     The law of nature framework.

1.     The nature of a constituted government: prerequisite to examining the text.

2.     The nature of enumerated powers

a.     Enumerated powers are supreme (“Plenary”) w/in their sphere.

b.     Means of exercising power are implied, not enumerated. (Derived from construction of the whole instrument.)

c.     Purposes/ends are never implied.

3.     The nature of the specific issue.

a.     A corporation is a means for some other purpose.

b.     A legislature has power to legislate.

c.     Congress can punish violations of federal law.

B.     The meaning of the text: “necessary and proper”.

1.     The text itself:

a.     Clause not required to vest Congress with legislative power.

b.     “Necessary” is not restrictive. “Necessary” => useful or convenient.

c.     “Necessity” is by definition a matter of degree. Cmp. with “absolutely necessary” in Art. I, Sec. 10. Necessity pertains to politics, not law.

2.     Contextual understanding:

a.     Relation to “and proper” and lack of modifiers to “necessary.”

b.     Placement among the grants of power.

c.     Terminology of a grant of power, not a restriction.

3.     Historical context: Contrast with Art. of Confederation.

C.     Conventional Rules of Application.

1.     There must be a legitimate end. Legitimate end: national fiscal operations.

2.     The means must be appropriate, i.e., plainly adapted to the end (protection against legislative pretext). Means is appropriate, although degree of necessity is a legislative question.

3.     The means cannot be expressly prohibited. No prohibition of forming a corporation.