Having recently read and studied the chapter in The Real George Washington entitled, "The Ratification Fight", I have had the strong impression that Washington faced in his day some of the same intensity against the Constitution that we face in our day. The main difference is those who opposed the Constitution in his day felt the proposed plan of government would give too much power to the federal government and lead to tyranny. Today, those who express opposition to the traditional restraints on government as contained in the Constitution are from the other side of the spectrum--they are seen as thinking the Constitution does not contain enough power to solve America's problems and insist the Constitution needs to be stretched to place enormous power mostly in the hands of the executive to deal with today's challenges.
In his day, Washington attempted to quite the fears of the opposition in these simple words:
My creed is simply:
First, that the general government is not invested with more powers than are indispensably necessary....
Secondly, that these powers...are so distributed among the legislative, executive, and judicial branches that it can never be in danger of degenerating into a monarchy... so long as there shall remain any virtue in the body of the people ....
The proposed Constitution...is provided with more checks and barriers against the introduction of tyranny...than any government hitherto instituted among mortals. ( The Real George Washington, p. 503, emphasis added)
After eight states had ratified, Washington wrote to Lafayette, "A few short weeks will determine the political fate of America for the present generation and...a long succession of ages to come." (p. 504-505)
About those "checks and barriers"
We seem today to have our own "few short weeks" to make a difference and save our Constitution from the opposition coming from the other side of the spectrum. It is almost incredible to see the rapid deterioration of our freedom and liberty. What some of us thought may happen over a decade to two is happening over a month or two.
As we observe our new president making friends and deals with foreign leaders, some of whom have been staunch enemies of America, we must remind ourselves of the "checks and barriers" provided in the Constitution to prevent our president from unilaterally making deals with scheming foreign dictators. Here are a few of those protections:
All executive agreements with foreign nations must have the
approval of the Senate or, in some cases, the whole congress
From Article II.2.2 of the Constitution it is clear that the President shall have power, by and with the advice and consent of the Senate, to make treaties, provided that two-thirds of the Senators who are present concur with the provisions thereof. (see Provision #153, The Making of America, p. 548 )
This provision gives the people of the United States the right not to be subject to any agreement with a foreign nation which has not received the consent of two-thirds of the Senators who were present when the matter was presented to them.
By definition, any agreement between two nations must be considered a treaty. Hence it is not constitutionally valid until ratified in Congress.
During the time of the Continental Congress (1774-1781) the only body authorized to make treaties on behalf of the states was the Congress itself. The same principle applied under the Articles of Confederation (1781-1789). However, it was appreciated that under the complexity of the foreign relations arising in the future it would be necessary to allow the executive officers of the government to negotiate various treaties and then present them to some branch of the Congress for approval. Recognizing this necessity, the Constitution provided that this task should fall upon the President and his officers -- but before any treaty could go into effect it had to be presented to the Senate and have the approval of at least two-thirds of its members. There are some treaties which require the concurrence of the House of Representatives. This would include any treaties which involve the expenditure of funds. Until the House has approved a bill authorizing such e xpenditures the treaty cannot be implemented.
As we see our president making agreements with foreign nations, he must be reminded (and he has taken an oath to do so) that no agreement is valid unless it has the Senate's approval after an open and public debate.
The United States is not subject to any international law
without the approval of Congress
From Article I.8.10 of the Constitution it is clear that the people of the states empower the Congress to define and punish offenses against the law of nations. (see Provision #94, The Making of America , p. 436)
This provision gives the Congress the exclusive right to determine by legislative definition the offenses committed by other countries against the United States in violation of the law of nations (commonly referred to as "international law").
Offenses against the law of nations are rules which "reason, morality, and custom" have established among civilized nations of Europe as their public law. Since the United Nations was organized there has been a powerful attempt to bring America under the control of foreign bodies made up of people who are opposed to our concept of unalienable rights and individual freedom. There members want to make America subject to decisions of the World Court, where these laws can be enforced against the citizens of the member countries. For several reasons this is a dangerous practice. First of all, Americans could be hauled up without any protection from their own Bill of Rights. Furthermore, people are often appointed to sit on this court who are sympathetic to the Communist philosophy. The major Communist countries have never joined the World Court; however, they have urged the United States to join. When the United States agreed to have international disputes settled by this court, the Connelly Reservation provided that the United States would reserve the right to determine when the court would have jurisdiction over its American citizens. Several Presidents have tried to get the Connelly Reservation repealed as a gesture of "good faith and good will" toward the World Court concept. Congress, however, has continued to consider the World Court unsatisfactory as a fair tribunal to settle international problems because of the way it is presently structured.
When our president and other executive officials express fondness for laws, philosophies, and customs of other countries it is in direct conflict with the Constitutional requirement that Congress is the only body that can define our law and declare when we are in violation of those laws. It is a dangerous practice to turn such power over to international bodies such as the United Nations. The authors of our Constitution foresaw this situation.
Only Congress can set rules concerning the treatment
and disposition of captured people and land
From Article I.8.11 of the Constitution it is clear that the people of the states empower the Congress to make rules concerning that which may be captured on land or on water. This provision gave Congress the exclusive right to regulate the capture of prisoners or the taking of land from the enemy. (see Provision #93 in The Making of America, p.443)
When we see our president make decisions as to detainees and other military matters, we must remind ourselves that it is our representatives in Congress that have the authority to make such rules in such matters, not the president.
Only Congress can build up the military by calling up the state militias
From Article I.8.15 of the Constitution it is clear that the people of the states empower the Congress to call forth the state militia when needed to: (1) execute federal laws, (2) suppress insurrections in the states, or (3) repel invasions from abroad.
This provision gave the Congress the right to order up the state militias singly or en masse to accomplish any of the three purposes specified in this provision.
It will be noted that the calling forth of the various state militias is not within the power of the President but must be done by the Congress. Even the Congress is restricted to three situations:
1. To execute the laws of the union -- the requirements of the Constitution, the acts of Congress, and the treaties.
2. To suppress insurrections -- which are open and active opposition to the execution of the law.
3. To repel invasions by an enemy intent on military conquest or the overthrow of the government.
Here again, both the President (who is not granted authority to call up the militia) and the Congress (which is limited to the circumstances when the militia may be called) are prevented from achieving an armed dictatorship and go around attempting to police the whole world.
Only Congress can authorize expenditure of tax money and then
only for those enumerated powers when they benefit the entire nation
From Principle #79 (from Article I.8.1): The people of the states empower the Congress to expend money (for the enumerated purposes listed in Article I, section 8), provided it is done in a way that benefits the general welfare of the whole people. (see Provision #79 in The Making of America, p. 387)
This provision gave the Congress the right to expend funds for all of the purposes itemized in Article I, section 8, provided that it was done for the general welfare of all the people and not for individuals or preferred groups.
From the days of the Founders a continuous storm of controversy has gravitated around the proper interpretation of this provision. In the Constitution this provision simply says: "The Congress shall have the power ... to pay the debts and provide for the common defense and general welfare of the United States." However, we have stated the meaning in Principle 79 (above) the way Jefferson and others said it was supposed to be interpreted.
Thomas Jefferson explained that this clause was not a grant of power to "spend" for the general welfare of the people, but was intended to "limit the power of taxation" to matters which provided for the welfare of "the Union" or the welfare of the whole nation. In other words, federal taxes could not be levied for states, counties, cities, or special interest groups , private businesses, etc.
For decades, the Constitutional spending restraints of the Founders have been so ignored by Congress and the president that it is a pure political free-for-all in the United States' Treasury.
A lasting foundation for happiness
When the Constitution was finally ratified and the cries of the anarchists subsided, George Washington was the first to recognize the power that had guided their hands to produce such a remarkable document of balanced and limited government. Said he:
We may, with a kind of pious and grateful exultation, trace the fingers of Providence through those dark and mysterious events which first induced the states to appoint a general convention, and then led them one after another...into an adoption of the system recommended by that general convention, thereby, in all human probability, laying a lasting foundation for tranquility and happiness, when we had but too much reason to fear that confusion and misery were coming rapidly upon us. That the same good Providence may still continue to protect us, and prevent us from dashing the cup of national felicity just as it has been lifted to our lips, is [my] earnest prayer. (The Real George Washington, p. 505-6)
Is this not the same prayer of concerned Americans today as we seek to restore the beautiful plan of government we call the Constitution?
Earl Taylor, Jr.