A Constitutional Presidency
Part 2 – Domestic Policy and Foreign Policy
by Kerry L. Morgan
Previous: Qualifications and The Legitimate Exercise of Power IV. DOMESTIC POLICY
What does the principle of equality require of a constitutional President in the context of affirmative action? President Lincoln said at Gettysburg that “our fathers brought forth on this continent, a new nation, conceived in liberty, and dedicated to the proposition that all men are created equal.”28 Lincoln affirmed the Declaration’s assertion that “all men are created equal.” It is this principle which he maintained in his orbit of thinking as President during the Civil War. The principle requires that all men stand equally before the law. Giving any preference or priority to, or imposing any deprivation or suspension upon any class of persons before the law, contravenes the principle of equality. The Supreme Court noted this very principle in 1867, declaring:
The theory upon which our political institutions rest is, that all men have certain inalienable rights – that among these are life, liberty and the pursuit of happiness; and that in the pursuit of happiness all avocations, all honors, all positions, are alike open to everyone, and that in the protection of all these rights all are equal before the law. Any deprivation or suspension of any of these rights for past conduct [in this particular case, participation in the rebellion] is punishment, and can be in no otherwise defined.29
In 1977 the Equal Employment Opportunity Commission (EEOC) adopted “Affirmative Action Guidelines.” The guidelines set quotas which take a man’s color into account in the allocation of employment opportunities. Such a practice is opposed to the proposition that all men are created equal and stand equal before the law.
Affirmative action is also diametrically opposed to the legal principle that past wrongs do not work the corruption of blood. Each man must bear the consequences of his own wrongdoing. The wrongful acts of the parents do not taint the equal rights of the heirs. The essence of this principle, in the context of treason, is reflected in the article III, section 3 prohibition against punishments working the corruption of blood. In addition, color conscious quotas constitute unconstitutional Bills of Attainder.30 Taking care that the law be faithfully executed, means taking care that the domestic policy of affirmative action be abolished. In principle, affirmative action, like slavery, runs contrary to equality.
What does the principle of unalienable rights require of a constitutional President in the context of such issues as abortion, infanticide and euthanasia? The Declaration affirms that “all men are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the Pursuit of Happiness.” This is a binding legal proposition. George Mason declared in the Virginia Constitution that “all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty…. “31 What do these foundational statements of unalienable rights mean? The Declaration asserts that “to secure these rights, governments are instituted among men. . . .” The purpose of government is to secure the unalienable rights of the people. These rights include the unalienable right to life of unborn children, infants, handicapped and the elderly.
The first duty of a constitutional President in this context is to determine the constitutionality of Roe v. Wade32 as it affects the executive sphere. If he finds that the opinion is not lawful because, for example, its trimester scheme constituted the exercise of legislative, rather than judicial power, then he need not consider it binding within his sphere of executive action. If the executive branch is called upon to execute the policy of Roe v. Wade or any law of Congress built on such a policy, which the President has decided to be unconstitutional, he is not bound to conform his sphere of action to that decision. The basis for such inaction is that the Court has no constitutional authority to exercise legislative power, as it did in Roe v. Wade. Thus, a constitutional President is not bound by Roe v. Wade within his sphere of action. Likewise, state governments should challenge Roe in federal court on the same grounds.
Educational matters are also important for a constitutional President. According to the laws of nature and of nature’s God, parents have the natural right and duty to direct the education and upbringing of their children. This prerogative and obligation is acknowledged by the Declaration of Independence which provides “that [all men] are endowed by their Creator with certain unalienable Rights.”33 It is axiomatic that parents or legal guardians alone are endowed with the unalienable right to direct the education of their child or legal dependent. Equally self-evident is the proposition that unalienable rights are broad enough to include the unencumbered exercise of parental liberty with respect to the education of their children.
Neither state nor federal jurisdiction extends to mandatory certification of teachers, approval of curriculum, or setting minimal educational standards. Government has no power to impair the obligation of parental educational contracts. In no case whatsoever does its remedial authority extend to substituting its judgment for that of parents with respect to the content, manner or object of education.34
The exercise of state and national jurisdiction over education also usurps intellectual freedom. It compels the subjection of children to governmentally directed or imposed ideas, opinions or beliefs. The issue is not whether children are compelled to believe certain ideas. The issue is whether children can be compelled to hear government approved ideas. Coercive exposure to governmentally selected and approved ideas is beyond the jurisdiction of civil government.35
The case against the federal extension of jurisdiction over education is equally compelling. Federal jurisdiction over education was rejected at the Convention in 1787. James Madison proposed that the legislative power of the United States included power to encourage by proper premiums and provisions, the advancement of useful knowledge and discoveries. This, however, was rejected along with the power to establish a university and seminaries for the promotion of literature, the arts and sciences.36 On each of these points, Congress has acted contrary to this original intent. National endowments now exist for all of these, as well as a Federal Department of Education.
President Jefferson acknowledged that if the federal government wanted to get into the education business, then the Constitution would have to be amended. Referring to education and the arts in his Sixth Annual Message, he declared: “I suppose an amendment to the Constitution, by consent of the States, necessary, because the objects now recommended are not among those enumerated in the Constitution, and to which it permits the public monies to be applied.”37 Furthermore, when President Madison recommended a university, Congress concluded: “The erection of a university, upon the enlarged and magnificent plan which would become the nation, is not within the powers confided by the Constitution to Congress.”38 President Monroe said the same: “I think proper to suggest also . . . that it be recommended to the States to include in the amendment sought a right in Congress to institute likewise seminaries of learning.”39 President Buchanan vetoed the first legislation bringing the federal government into education:
I presume the general proposition is undeniable that Congress does not possess the power to appropriate money in the Treasury, raised by taxes on the people of the United States, for the purpose of educating the people of the respective States. It will not be pretended that any such power is to be found among the specific powers granted to Congress nor that “it is necessary and proper for carrying into execution” any one of these powers.40
The original 1867 Department of Education, therefore, made a mockery of the Constitution – it was justified as a function of the census and placed in the Department of Interior.
More recently, President Carter signed, rather than vetoed, the Department of Education Act of 1979. That Act reached far into the heart of the unalienable rights of parents. A congressional committee reported:
The Congress declares that the establishment of a Department of Education is in the public interest, will promote the general welfare of the United States, will help ensure that education issues receive proper treatment at the Federal level, and will enable the Federal Government to coordinate its education activities more effectively.41
Congress, by employing the word “promote” rather than “provide,” expressly incorporated the preamble of the Constitution into Congress’ article I powers. The preamble, however, is not an empowering clause or a grant of authority. Congress disregarded the Constitution by acting without an empowering clause. A constitutional President should not execute laws that are so clearly beyond the jurisdiction of the federal government.
It falls to the President, however, to determine what his constitutional oath requires. The evidence points to the fact that the people have not extended by their written consent any general jurisdiction over education to the national government. The patent and copyright provision, and military education are within the purpose of specific constitutional provisions.
In the midst of all the discussion about excellence in education and the government’s supposed duty to ensure excellence, the simple constitutional truth has been lost, though not irreparably. President Buchanan’s warning is clear: “Should the time ever arrive when State governments shall look to the Federal Treasury for the means of supporting themselves and maintaining their systems of education and internal policy, the character of both Governments will be greatly deteriorated.”42 This is true even if the governmental support is indirect.
Perhaps the least understood form of supporting our system of education from the federal treasury is the voucher. Many suggest a federal voucher would increase parental liberty. In actuality, however, the opposite is true; parental liberty would be decreased. Federal jurisdiction would also be expanded over private schools which seek to be approved recipients of federal vouchers via parents.
Parental liberty would be decreased simply as a result of economics. An unapproved private school would have to reduce its tuition in proportion to the amount of the voucher in order to be competitive with approved private schools. The greater the voucher, the less likely an unapproved private school will be able to compete or offer equivalent services. It must sacrifice its quality or go out of business. Likewise, federal jurisdiction over approved schools will necessitate federal oversight and regulations. With these regulations, compliance inevitably follows along with increased administrative costs which eventually escalate tuition. This does not increase parental liberty, nor is it consistent with the exercise of constitutional executive power.
The principle of government by written consent requires certain action from a constitutional President in the context of social programs, such as welfare and social security. An honest observance of our constitutional compact demonstrates that the federal government has no jurisdiction over welfare, social security, or health care.43 President Franklin Pierce articulated this principle so clearly, that the quotation is worth commenting on in detail. The major point emphasized by Pierce is that the people clearly did not extend to any branch of the national government authority or power to make or execute any law related to welfare, social security or health care.
President Pierce vetoed an act to grant land to the states for the benefit of indigent insane persons. First, he affirmed the supremacy of the Constitution over that of special interest legislation. He said: “[It is] my deliberate conviction that a strict adherence to the terms and purposes of the federal compact offers the best, if not the only, security for the preservation of our blessed inheritance of representative liberty.”44 Then he affirmed his duty as a constitutional President to uphold the rule of law against the tyranny of men. He observed: “This bill … Presents at the threshold the question whether any such act on the part of the Federal Government is warranted and sanctioned by the Constitution, the provisions and principles of which are to be protected and sustained as a first and paramount duty.”45 Pierce then addressed the text of the Bill:
The question presented, therefore, clearly is upon the constitutionality and propriety of the Federal Government assuming to enter into a novel and vast field of legislation, namely, that of providing for the care and support of all those among the people of the United States who by any form of calamity become fit objects of public philanthropy.
I readily and, I trust, feelingly acknowledge the duty incumbent on us all as men and citizens, and as among the highest and holiest of our duties, to provide for those who, in the mysterious order of Providence, are subject to want and to disease of body or mind; but I cannot find any authority in the Constitution for making the Federal Government the great almoner of public charity throughout the United States. To do so would, in my judgment, be contrary to the letter and spirit of the Constitution and subversive of the whole theory upon which the Union of these States is founded.46
President Pierce maintained the standard of the Constitution as supreme. He was not convinced by the rhetoric concerning the general welfare clause, which today almost every politician and judge blindly asserts as having empowered him to do whatever the political winds require. Pierce said:
I shall not discuss at length the question of power sometimes claimed for the General Government under the clause of the eighth section of the Constitution, which gives Congress the power “to lay and collect taxes, duties, imposts, and excises, to pay debts and provide for the common defense and general welfare of the United States,” because if it has not already been settled upon sound reason and authority it never will be. I take the received and just construction of that article, as if written to lay and collect taxes, duties, imposts, and excises in order to pay the debts and in order to provide for the common defense and general welfare. It is not a substantive general power to provide for the welfare of the United States, but is a limitation on the grant of power to raise money by taxes, duties, and imposts. If it were otherwise, all the rest of the Constitution, consisting of carefully enumerated and cautiously guarded grants of specific powers, would have been useless, if not delusive . . . .47
It is interesting to note that the four-member dissent in Steward Machine Company v. Davis cited Pierce as controlling.48 Steward Machine Company was the case that held Social Security constitutional. A constitutional President, however, must determine if such a decision is lawful. Andrew Jackson said:
Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others. It is as much the duty . . . of the President to decide upon the constitutionality of any bill … as it is of the supreme judges when it may be brought before them for judicial decision.49
A constitutional President need not be bound by such a decision if the faithful execution of his office and preservation of the Constitution render health, welfare, and retirement legislation unconstitutional.
A constitutional President should not be advocating these programs or otherwise usurping power that constitutionally resides in the people. The people never extended to Congress or to the President jurisdiction over these areas. To pretend to act for the people by exercising power not extended by the written Constitution to the national government, undermines rather than secures the liberty of the people. Unconstitutional exercise of power is never in the best interest of the people. This is a basic truth of government under law. Even if the question of jurisdiction were doubtful, it would be wise to adhere to the advice of President Monroe, who said:
In cases of doubtful construction, especially of such vital interest, it comports with the nature and origin of our institutions, and will contribute much to preserve them, to apply to our constituents for an explicit grant of the power. We may confidently rely that if it appears to their satisfaction that the power is necessary, it will always be granted.50
A constitutional amendment is always preferred to usurpation of undelegated power.
Agriculture relates directly to the Presidency in an important way. The Constitution is a grant to Congress of several enumerated powers. They relate chiefly to war, peace, foreign and domestic commerce, and other subjects which may be best exercised solely by the federal government. All other powers are reserved to the state governments or to the people. These powers must be kept separate and distinct if the system is to function as intended.
One such provision gives to Congress power to collect taxes in order to pay the debts and provide for the common defense and general welfare of the United States (article I, section 8, clause 11). Nothing in the deliberations during the Constitutional Convention indicates that this provision for general welfare was ever intended to grant general, discretionary legislative authority to Congress. The powers of the federal government were instead carefully enumerated. James Madison affirmed the limited nature of this grant of power when he asserted:
[I]t exceeds the possibility of belief, that the known advocates in the Convention for a jealous grant & cautious definition of federal powers, should have silently permitted the introduction of words or phrases in a sense rendering fruitless the restrictions & definitions elaborated by them.51
Madison noted that if Congress used the “general welfare clause” as a distinct grant of broad power, it would have the disastrous effect of creating two Constitutions. He stated:
Consider for a moment the immeasurable difference between the Constitution limited in its powers to the enumerated objects; and expanded as it would be by the import claimed for the phraseology in question. The difference is equivalent to two Constitutions, of characters essentially contrasted with each other; the one possessing powers confined to certain specified cases; the other extended to all cases whatsoever ….52
Yet in 1856, Congress asserted that the Constitution’s general welfare clause empowered it to establish a Federal Department of Agriculture for the purpose of collecting agricultural statistics, promoting agriculture, and procuring and distributing seeds, cuttings and bulbs.53 The proponents of the Bill claimed that the general welfare could
in no way be better advanced or promoted, than by such means as shall secure the largest amount of wealth from its original source, the cultivation of the soil; than by inciting to habits of industry and economy, by securing intelligence, and promoting moral and political virtue among all classes of people, upon whom rests the maintenance and perpetuity of our free institutions.54
After several years of debate in Congress, President Lincoln signed, in 1862, the act to establish a Department of Agriculture. The language of the new act was consistent with the general assertions of 1856. The President acknowledged that while the department was established for the “immediate benefit of a large class of our most valuable citizens,” it should eventually become “the fruitful source of advantage to all our people.”55
In January of 1863, the Commissioner of Agriculture submitted the first annual report of the Department. The Commissioner stressed that “a great national department of agriculture” could “augment the wealth, the prosperity, the permanency, and the glory of the republic.”56 He further justified the department by asserting that “whatever improves the condition and the character of the farmer feeds the life-springs of national character, wealth and power.”57
The Commissioner affirmed that one of the chief objects of the Department was collecting, publishing and disseminating statistical and other useful information in regard to agriculture. During the first year of its operation, the department spent $60 thousand.58 The Department of Agriculture’s budget for 1988 is over $65 billion, including items such as price supports, direct income benefits, payments for non-production and storage.59
Constitutionally, the creation of the Department of Agriculture rested on a defective foundation. Congress has never possessed the constitutional authority to create such a department. No such power is found among the specific powers granted to Congress, nor is it “necessary and proper for carrying into execution” any one of the enumerated powers. The states may have this power, but not the Congress.
By establishing the Department of Agriculture and its functions, Congress has made the rule of expediency, rather than the rule of law, its benchmark for constitutional interpretation. It has elevated its own opinions over the Constitution, and therefore, has departed from the fundamental maxim that the intent of the lawgiver is the law.
A constitutional President must decide what his oath requires. He must choose between a broad interpretation of the general welfare clause, which contravenes the Founders’ intent, or a limited construction of the provision as it was intended. If the President construes the provision in the latter manner, then the Department of Agriculture and its functions must be abolished. If Congress refuses to repeal the enabling act, the President should not use his executive power to perpetuate such an unconstitutional usurpation of power.
Another public policy issue involves constitutional amendments. Balanced budget, school prayer and pro-life amendments are being discussed today. The President may also recommend amendments to the Congress or states. President Jackson, however, warned: “When an honest observance of constitutional compacts cannot be obtained from communities like ours, it need not be anticipated elsewhere … and the degrading truth that man is unfit for self-government admitted. And this will be the case if expediency be made a rule of construction in interpreting the Constitution.”60
The present need for a balanced budget amendment is a direct result of the federal government spending for programs beyond its jurisdiction. The battle is over money. For instance, defense costs are played off against education. These are false alternatives. Defense is a legitimate object extended to the national government by the Constitution. Education is not.
An attempt to balance the budget by an amendment without first considering the constitutionality of the objects of spending is nonsense. Refusal to consider first the constitutionality of spending for present purposes demonstrates that an honest observance of the Constitution cannot yet be found among our politicians. Amendment supporters are saying, “Let’s amend the Constitution to force the Congress to balance the budget.” The Congress, however, does not obey the Constitution as it is presently written. They tax and spend for unenumerated purposes or objects, several of which have been addressed above, particularly for education and agriculture. It is foolish to believe that a constitutional amendment will help when Congress does not obey the present Constitution and amendments. The only explanation for this unconstitutional activity, is adherence to a rule of construction based on expediency and a rejection of the rule of law.
While a detailed examination of a constitutional President and foreign policy is beyond the scope of this article, there are certain themes which should be discussed. First, Congress has power to regulate commerce with foreign nations. Second, the President and the Senate (as agents of the state governments though now popularly elected), have power to make treaties. Third, the President is Commander in Chief, but Congress controls the actual declaration of war and has the power of the purse. Foreign policy always involves commerce, treaties and military involvement. The relationship between the power to regulate commerce with foreign nations and the power to make treaties was described early in our history. It was noted by judge Davis in United States v. The William:
The care, protection, management and control, of this great national concern [commerce], is . . . vested by the Constitution, in the Congress of the United States; and their power is sovereign, relative to commercial intercourse, qualified by the limitations and restrictions, expressed in that instrument, and by the treaty making power of the President and Senate ….61
Commercial relations, therefore, are subject to terms of any treaty touching the same object. In other words, congressional statutes regulating foreign commerce may be pre-empted by prior treaties. Of course, the Constitution itself recognizes this in article VI.
Both commercial statutes and treaties, however, depend upon the United States Government’s previous recognition of a foreign regime as the lawful government in authority. The executive branch should stipulate several preconditions which must be fulfilled by a foreign regime prior to a grant of official recognition. These principally relate to the assessed capacity of their people for self-government, government by consent, and the likelihood of the regime to secure the unalienable rights of the people. The more likely a foreign regime can conform to these standards, the more likely a meaningful treaty or commercial intercourse is desirable or possible. Many politicians do not understand the desirability of such an approach. With some regimes, no treaty should ever be made nor should these “governments” be officially recognized as representing their people. In such cases, the United States should make known that it may recognize a faction within a country as a legitimate government because that faction respects the basic criteria for government under the rule of law. The policy, however, of working with and negotiating with totalitarian governments, which we have officially recognized, only lends credibility to their official oppression of factions seeking self-government from within.
A constitutional Presidency must re-examine the extent to which certain regimes should be recognized. To acknowledge totalitarian (and in many cases, also imperialistic) regimes as lawful, can only be self-destructive. Such recognition accepts the proposition that legitimate regimes need not be established on a legitimate foundation – that lawful governments need not be based on the rule of law. The United States harms itself, the freedom it represents, and those who struggle worldwide against oppressive regimes and governments, by continued insistence that meaningful treaties or diplomatic relationships can be solidified with those governments that neither respect the rule of law nor unalienable rights.
This view is not advancing isolationism or interdependence. The purpose is to assess the type of government we are dealing with and to select the appropriate constitutional response with options ranging from peaceful and mutual intercourse, to self-defense and perhaps war. The United States must not lose sight of the proposition that American government, which is expressly founded on certain “self-evident truths,” can never afford to be dependent on or interdependent with regimes centrally founded on inequality and slavery. Experience has demonstrated that our own Union was not meant to be half-slave and half-free; a house divided against itself cannot stand. The same is true about our relationship with other countries. A constitutional Presidency cannot carry out a forward strategy for peace and freedom with some countries and, at the same time, enter into meaningful treaties with countries that refuse to secure the unalienable rights of its citizens.
Presidential recognition of a government or regime is the first item on any constitutional foreign policy agenda. The bottom line is that a regime that systematically employs its power to enslave its people or crush their unalienable rights is not a lawful government. Indeed, “whenever any Form of Government becomes destructive of these Ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its Foundation on such Principles, and organizing its Powers … to effect their Safety.”62 United States foreign policy should not be a partner with foreign governments, communist puppets or terrorist organizations, which “become destructive” of the unalienable rights of their own people. An American foreign policy that continues to recognize “any form of government” destructive of its own people evidences just such a partnership. In the end, such a policy of recognition will work to our detriment.63
With respect to the military, the principle of government by consent requires a constitutional President to assume an attentive posture. The purpose of civil government is to secure the unalienable rights of the people. The national government is constitutionally empowered to secure this object. Some of the jurisdiction of the national government’s military is extended to the President under article II. He is the Commander in Chief of the military forces.
A constitutional President is one who employs military power under article II in order to secure the liberty of the people. The President is empowered to defend our rights and liberties from foreign governments and terrorist regimes because the Constitution extends that power to him in writing. President John Quincy Adams said that “[t]he declaration of war is in its nature a legislative act, but the conduct of war is and must be executive.”64 In recent years, Congress has put unconstitutional restraints upon the executive branch in the discharge of this obligation. Congress has also impaired the lawful means by which the executive may prepare to defend the country.65 Adams, however, observed the correct relationship between the two branches, concluding: “However startled we may be at the idea that the Executive Chief Magistrate has the power of involving the nation in war, even without consulting Congress, an experience of fifty years has proved that in numberless cases he has and must have exercised the power.”66 Of course, a constitutional President must work with the Senate in forming treaties, but with respect to his obligation as Commander in Chief, he has a constitutional duty to independently assess the situation and conduct the military as his judgment yields.
The conclusion of the matter raises some crucial questions. Are we ready for a constitutional Presidency? Do we want the rule of law and a government that respects constitutional restraints? Or do we believe that mankind is incapable of self-government, thus subverting the whole theory upon which the union is founded? Many of the conclusions and recommendations noted in the text are far from denying self-government; nor do they require the subversion of our form of government. As such they are far from the mainstream of American political thought. To say it differently, American political thought is far removed from the mainstream of the legal and constitutional truths which inspired the founding of America.
The American regime was built line upon line, precept upon precept. It has its foundations in the law of nature. Its structure consists of constitutional principles. We cannot expect the structure to remain intact, however, if the assaults on the foundations continue. With the demolition of the law of nature and the principles of the Declaration of independence, our constitutional government, our rights and our liberties will not remain secure.
If we oppose the self-evident truths of the founding, it is because we do not yet fully perceive the tyrannical nature of the alternative. If we recoil at the thought of a constitutional government of limited and enumerated powers, it is because we have not brought to memory past and present governments which turn upon their own people and devour their property, liberties and lives under the pretense of the general good of the people.
If we do not insist on a constitutional President, then we must live with the alternative. In our day and age, the alternative is far more disturbing than any of the public policy conclusions articulated in the text. Such an alternative places us under no law at all, constitutional or otherwise. For there can be no security in the rule of men subject to no other law than that which they create. Nor can the passage of time and precedent breathe legitimacy into such folly as is commonly supposed.
The challenge of a constitutional Presidency stands in stark contrast to the alternative. Every four years, the people are called upon to decide which type of President will govern them in an executive capacity. We should insist upon a President committed to the immutable precepts of the rule of law and its reflection in the American legal and policy arena.