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Chapter V
The United States Constitution
5.1 The Functions Of A Constitution
Therefore, it is not right that any man should be in bondage one to another.
And for this purpose have I established the Constitution of this land, by the hands of wise whom I have up unto this very purpose, and redeemed the land by the shedding of blood.
Have mercy, O Lord, upon all the nations of the earth; have mercy upon the rulers of our land; may those principles, which were so honorably and nobly defended, namely, the Constitution of our land, by our fathers, be established forever. (D&C 101:79–80; 109:54; See also D& C 98:4–8)
Constitutions of both the Federal and State governments serve the following purposes:
1. Establish the framework of government by setting up its branches, the various offices therein and how they are filled:
2. Delegate to each branch the powers it may exercise;
3. Specify the procedures which must be followed by the officers in the exercise of their powers; and
4. Place restraints on government power
We shall discuss each of these matters in turn commencing in this chapter with a brief review of the framework established by the United States Constitution.
One of the most novel and remarkable features of the political system established by this Constitution was the division of powers between the Federal and the State governments. Let us consider how these powers were divided. It is submitted that a correct understanding of this matter is best obtained by recognizing the purposes for which the Federal government was established and then noting the powers which were necessary for it to accomplish these purposes, A study of the conditions which existed among the thirteen tees at the time the Constitution vas adopted and the problems facing them [p. 54] which demanded solutions, discloses that there were three primary motives for uniting under a single government: (1) The threat of foreign aggressor nations; (2) The likelihood of civil strife between the states if they continued to be disunited; and (3) The trade barriers and other economic restrictions which existed between the states and would have continued in the absence of a Federal government. Let us consider what transfer or delegation of powers to a central government was required to solve these three problems.
5.2 Powers Necessary To Cope With The Threat Of Foreign Nations
And it came to pass that I, Nephi, beheld that the Gentiles who had gone forth out of captivity did humble themselves before the Lord; and the power of the Lord was with them.
And I beheld that their mother Gentiles were gathered together upon the waters, and upon the land also, to battle against them.
And I beheld that the power of God was with them, and also that the wrath of God was upon all those that were gathered together against them to battle.
And I, Nephi, beheld that the Gentiles that had gone out of captivity were delivered by the power of God out of the hands of all other nations.
Nevertheless, thou beholdest that the Gentiles who have gone forth out of captivity, and have been lifted up by the power of God above all other nations, upon the face of the land which is choice above all other lands, which is the land that the Lord God hath covenanted with thy father that his seed should have for the land of their inheritance; wherefore, thou seest that the Lord God will not suffer that the Gentiles will utterly destroy the mixture of thy seed, which are among thy brethren.
For it is wisdom in the Father that they should be established in this land, and be set up as a free people by the power of the Father, that these things might come forth from them unto a remnant of your seed, that the covenant of the Father may be fulfilled which he hath covenanted with his people, O house of Israel;
(1 Nephi 13:16–19, 30; 3 Nephi 21:4)
The several states acting separately from one another were comparatively weak both economically and militarily and no match for the armed might of foreign countries. This weakness together with [p. 55] the fact that the vast fertile land areas of America offered great temptations to the empire-hungry nations of Europe, demanded that they unite for their very survival. That unity which had been so necessary for them to achieve independence was equally necessary to preserve it.
To provide this unity and combine their powers into one, it was necessary to make the central government responsible for the national defense and delegate to it those powers necessary to perform this vital function. To this end the Constitution authorized the Federal Congress “to declare war ... to raise and support armies ... to provide and maintain a navy” and, in short, to handle all matters concerning foreign nations. To enable it to obtain the means necessary to carry out this and other functions Congress was also empowered “to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States.” (Art. 1, sec. 8)
To insure that the power of the Federal government was exclusive in this field, the States were specifically prohibited from involving themselves in foreign and federal relations by such clauses as these:
No State shall enter into any Treaty, Alliance, or Confederation; ... No State shall, without the consent of Congress, lay any duty of tonnage, keep troops, or ships of war in time of peace, enter into any agreement or compact with another State, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay. (Art. I, Sec. 10)
5.3 Powers Necessary To Prevent Civil Strife Between The States
Unless the states had formed a national government, vested it with power to settle disputes between them and incorporate into the union the western territories, it is inconceivable that there would not have been armed conflict to resolve these matters. Boundary disputes, conflicting claims to the unsettled land, unredressed injuries both imagined and real would, in all likelihood, have kept the states in constant turmoil and embroiled them in a series of wars such as [p. 56] have racked the nations of Europe for centuries past.
To avoid such strife, it was necessary to establish a federal judiciary and give it jurisdiction over such matters as:
controversies between two or more States; between a State and citizens of another State; — between citizens of different States;-between citizens of the same state claiming lands under grants of different states... (Art. 3, Sec. 2)
5.3 Powers Necessary To Remove Trade Barriers And Economic Restrictions
Tariff walls, diverse and unstable monetary systems, differing standards of weights and measures and similar economic impediments which invariably arise between sovereign nations, strongly influenced the colonists to vest the Federal government with power to prohibit such harmful legislation and otherwise unite the nation into a single economic entity. To insure the free flow of commerce and people across the state lines the Constitution provided that:
The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states. (Art. IV)
No state shall, without the consent of the Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws ... (Art. I, Sec. 10)
The power to prevent such restrictions was placed in the Federal legislature by this clause:
The Congress shall have power ... to regulate commerce with foreign nations, and among the several states and with the Indian Tribes. (Art. I, Sec. 8)
To guarantee that every state would have a sound and redeemable monetary system it was provided that:
No State shall ... make anything but gold and silver coin a tender in payment of debts. (Art. I, Sec. 10)
Then to establish a uniform monetary system throughout the nation, Congress was given power: [p. 57]
To coin money, regulate the value thereof and of foreign coin
The states were prohibited from either coining money or issuing paper money as legal tender by this clause:
No state shall coin money; emit bills of credit (Art. I, Sec. 10)
To give inventors and authors the benefit of their efforts throughout all the nation, the National government was authorized to issue patents and copyrights. It was also empowered to establish a uniform system of weights and measures and to handle bankruptcy cases thus insuring equitable treatment for all creditors. To overcome the jurisdictional limitations of state courts and to insure an impartial tribunal for litigants not resident in the same state, the federal judiciary was authorized to handle cases between citizens of different states.
5.5 Miscellaneous Powers
In addition to those powers necessary to accomplish the three main purposes discussed above, there were a few others necessary to enable the Federal government to function without hindrance or interference from state governments. That it might have a home base of operations over which it could exercise exclusive jurisdiction, and to enable it to establish and control military bases within state boundaries, Congress was given power:
To exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular states, and acceptance of Congress, become the seat of the Government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings; ... (Art. I, Sec. 8)
As to land areas subject to jurisdiction of the United States and not a part of any State, Congress was given the power to:
Dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States. (Art IV, Sec 3) [p. 58]
In addition it could:
Define and punish piracies and felonies committed on the high seas, and offenses against the law of nations. (Art. I, Sec. 8)
The Federal government was enabled to prevent its own destruction by being given the “power to declare the punishment of treason.” (Art. III, Sec. 3) It was also authorized to provide for the punishment of counterfeiting the securities and current coin of the United States.
5.6 Governmental Powers Reserved To The States
While it would be necessary to examine the constitutions of the several states to determine the powers possessed by each of them, we can generalize about the division of power between them and the federal by stating that it was intended that they possess the great mass of the powers of government while the national government was to exercise relatively few of them. The following statement by James Madison who deserves, if anyone does, the title of “Father of the Constitution,” is representative of the feelings of the founding fathers regarding this division:
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, 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. (Fed. Papers #45)
Under the federal system then the National government is assigned the duty and power of defending the nation against foreign aggression and of handling foreign and federal affairs. In performing these functions it is empowered to impose taxes on the people and establish military forces. But other than this, it was given very little power over the citizens of the various states. The power to punish [p. 59] crime, to adopt and enforce contract and tort laws, to determine the ownership of property and otherwise perform those functions necessary to protect the lives, liberties and properties of the people was left to the states. It is true that the Federal government was empowered to punish a few crimes such as treason and counterfeiting; to determine property rights in a few cases such as patents, copyrights and bankruptcies; and even to decide other cases when the litigants were citizens of different States. But other than those cases enumerated, it was not empowered to use force against the citizens. To make certain that it would neither claim nor exercise powers other than those granted, the following provision was adopted:
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. (10th Amendment)
5.7 Separation Of Powers Doctrine
The Constitution divides the powers of government six different ways: First between the states and the Federal, and secondly between the legislative, executive and the judicial branches within each. While there is no mention in the Constitution of the necessity of these three departments within the state governments, this division was assumed to be a necessary attribute of the “republican form of government” which the Constitution guarantees to each state. The federal Constitution provides for these three departments as do the Constitutions of every state, and the separation of powers intended appears to be essentially the same in all American Constitutions even though the methods of choosing the officers vary.
The necessity of keeping the powers of government divided, and the danger of not doing so, was explained by Madison in the following passage:
The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny. (Federalist Papers #47)
In the same number from which the above was taken, Madison quotes with approval these words from the celebrated French authority, Montesquieu, on this subject: [p. 60]
When the legislative and executive powers are united in the same person or body, there can be no liberty, because apprehensions may arise lest the same monarch or senate should enact tyrannical laws to execute them in a tyrannical manner ... Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislator. Were it joined to the executive power, the judge might behave with all the violence of an oppressor. (Id.)
According to the following provision, the power of passing laws is vested exclusively and solely in the Congress:
All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and a House of Representatives. (Art. I, Sec. I)
Since “all legislative powers herein granted” are vested in Congress, it would be patently wrong for the executive, the judicial or any other agency to exercise law-making powers. Such a power, where held, is vested exclusively in the Senate and House. Legislation from any other source would be unconstitutional.
According to the original plan of the Constitution the people elected the members of the House of Representatives directly while the State legislatures chose the members of the Senate. Since all proposed legislation which becomes law must pass both houses, this system theoretically gave the people a veto power over all laws through their representatives, and it also gave the State governments the power to prevent the Federal Government from destroying the rights of the States through the control they exercised over the Senate. However, in 1913 the 17th Amendment was adopted which made Senators subject to popular vote. This left the state governments without any voice in the Federal.
The executive power of the United States government is vested in a President. He is the Commander-in-chief of the army and navy and has the power, by and with the consent of the Senate, to make treaties, appoint ambassadors, federal judges and other public ministers. He has the power to veto legislation which may then be passed over his veto by a two-thirds majority of both houses. The President together with the Vice-President, who serves as president of the Senate, are elected by electors who are in turn elected by the people. The third branch of government, the judiciary, is established by the following provision: [p. 61]
The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. (Art. III, Sec. I)
In addition to its power to try cases arising between States and the citizens of different States, the judicial power extends to all cases:
1. Arising under the Constitution, the laws of the United States, and treaties made under their authority;
2. Affecting ambassadors and other public ministers;
3. Of admiralty and maritime jurisdiction;
Federal Court judges are not subject to the vote of the people but are appointed by the President by and with the consent of the Senate. They have lifetime tenure, hold their offices during good behavior, and their compensation cannot be diminished while in office. These provisions make them independent of the influence and control of the other branches of government and leave them free to pass judgment on the constitutionality of laws without fear of reprisal.
5.8 A System Of Checks And Balances
The central problem which men face in forming a government was succinctly stated by James Madison in these words:
In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to control the governed; and in the next place oblige it to control itself. (Federalist Papers, #51)
Those who established the United States Constitution solved this problem with unmatched skill. They accurately perceived that while government is essential for the protection of human rights, it is also their greatest danger. The real genius of their accomplishment lay not in conveying to government sufficient power to protect these rights, for that requires little statesmanship. Their consummate wisdom and art was displayed in devising a structure which, while adequate to its task, contained a system of checks and balances skillfully designed to prevent the concentration and abuse of power.
To avoid the concentration of power they divided it between the [p. 62] states and the federal and then between the three branches within each. The legislature being the strongest of the three and the most likely to exceed its authority was again divided.
A series of hurdles were erected to prevent the passage of ill-considered legislation with each branch of government empowered either to prevent or render difficult its adoption. Since all laws require the approval of both houses of Congress, the people, through their elected representatives, could obstruct the passage of laws inimical to their interests. Under the original plan the State legislatures appointed the members of the Senate and could preserve their rights through the control they exercised over that body. The President, while not having an absolute negative, could, through the veto power, prevent the passage of any measure not receiving the approval of a two-thirds majority of both houses. And finally, even though a bill had received the approval of the other two branches, the Supreme Court could declare it unconstitutional if they found that it provided for the exercise of powers not granted by the people.
5.9 The Principle Of Self-Government
Under the American political system, not only are the people the source of all power, but they have a continuing right to govern themselves. To do this they must have an effective voice in determining the regulations to which they are subject, the taxes they are compelled to pay and how those taxes are spent. To have an effective voice in these matters, it is necessary that the individual voter be able to influence those who pass laws.
But the individual’s ability to influence a lawmaker varies inversely with the number of voters in the lawmaker’s district. The greater the number of voters, the smaller the influence. While a voter might be able to have substantial influence on his county commissioner or city councilman, his influence on a national congressman-especially one from another state or district-would be virtually nil.
Therefore, to make the principle of self-government a reality, the taxing and spending powers must be kept as close to home as possible. Government functions must be assigned to the lowest level of government which can perform them. To the extent this rule is violated, [p. 63] to this same extent the right of self-government is denied.
The men who established our National and State governments adopted this rule. To the Federal they delegated only those powers of national defense and foreign and federal relations which state and local governments could not perform. State governments were assigned only those functions which the local could not handle. This principle was succinctly expressed by Thomas Jefferson in the following words:
...The way to have good and safe government is not to trust it all to one; but to divide it among the many, distributing to everyone exactly the functions he is competent to. Let the National Government be entrusted with the defense of the nation, and its foreign and federal relations; the State governments with the civil rights, laws, police and administration of what concerns the state generally; the counties with the local concerns of the counties and each ward direct the interests within itself. It is by dividing and subdividing these republics, from the great national one down through all its subordinations, until it ends in the administration of every man’s farm and affairs by himself; by placing under every one what his own eye may superintend, that all will be done for the best. What has destroyed liberty and the rights of man in every government which has ever existed under the sun? The generalizing and concentrating all cares and powers into one body, no matter whether of the autocrats of Russia or France, or the aristocrats of a Venetian Senate.
There have been many tributes paid the United States Constitution. The most sincere praise is found in the fact that it has been emulated and its principles incorporated into the political systems of so many other nations. The British statesman, Gladstone, said of it:
The American Constitution is the most wonderful work ever struck off at a given time by the brain and purpose of man.
And the historian, John Fiske, praised it in these words:
It was one of the longest reaches of statesmanship ever known in the world. [p. 64]
5.10 The Moral Code Of The Constitution
Probably no one has more succinctly and accurately stated the moral code upon which our American Constitutional system is based than did Washington when he said in his first inaugural address:
...(T)he foundation of our national policy will be laid in the pure and immutable principles of private morality.
Those principles were derived, of course, from the Christian religion to which the Founding Fathers subscribed. To them the Bible was the word of God and was the only reliable source of moral law upon which to erect a political structure. And so they turned to that source for guidance.
In the Ten Commandments and the rules given in connection therewith, they found listed that conduct which was so evil that it should be discouraged with physical punishment. Also, the penalties (or judgments as they were called) which should be inflicted were given. These laws were tempered with the fundamental concept of Christian justice which decrees that punishment shall never be inflicted unless the accused has violated his conscience — unless he has done to another that which he would believe wrong and harmful if done to him. In the laws given to Moses, it was also provided that those who either intentionally or negligently injured their neighbor should make restitution. These principles of justice formed the basis of the private code of morality which was incorporated into the Constitution and laws of this nation.
The Common Law of England which the colonists adopted provided for punishing evil and making restitution for injuries. But the part of the laws of England which they refused to accept were those which violated the Christian moral code. It was their position that governments themselves must obey the moral law; that their powers are limited to punishing evil and providing restitution, and anything more than this is evil; that anything which is evil or unjust for the individual to do, is equally wrong for men to do in the name of government.
It was because the English had undertaken to impose upon them laws which violated this moral code that the Revolutionary War was fought. It was because the nations of Europe had enacted such laws that the Pilgrims had come here seeking freedom in the first place. [p. 65] And so, in the Declaration of Independence the point was made:
That whenever any form of Government becomes destructive of these ends, (securing man’s rights) it is the Right of the People to alter or to abolish it, and to institute new Government ...
The concept that governments are themselves obligated to obey the moral code they are established to enforce was truly a revolutionary idea. No government at that time was so confined. And yet this was a very vital part of the moral code of the Christian religion. The Bible clearly teaches that rulers should confine themselves to punishing only that which is evil. It instructs them to be just; to observe the Golden Rule; to never do to another that which they would consider wrong if done to themselves. There is no principle of Christian justice more firmly established than this: that an innocent person shall not be punished.
And so the Founders built into the system they established protection against violation of this vital principle. Those safeguards were of two kinds: (1) Procedural, and (2) Substantive. The procedural defenses against injustice were largely contained in the Common Law of England which guaranteed the accused the right to a jury trial, the privilege against self-incrimination, the right to be faced by his accusers, the right to counsel, etc. But they wanted to provide against a danger which was, if anything, even greater: the adoption of unjust laws. To them it was as much a violation of the moral law to convict and punish a person who was guilty of violating an unjust law, as it was to convict and punish one who was not guilty of violating a just law. And so great care was taken to limit the power of government accordingly. This principle is strictly in harmony with the natural law developed in Chapter III which decrees that: “Government shall punish nothing except the intentional violation of duties.” It also conforms to the thought developed in Chapter IV that since government is a derived power, it can do nothing which would be wrong for the individual to do for himself.
In the succeeding chapters we shall discuss how the moral code of the Constitution was implemented. In the chapter on crimes we will discuss the punishment of evil. The chapters on torts and contracts will consider the principle that governments should be available for compelling restitution for injuries to the elements of freedom. We shall also point out the natural limits on the power of government as it performs these functions. [p. 66]
We believe in being subject to kings, presidents, rulers, and magistrates, in obeying, honoring, and sustaining the law.
(Articles of Faith No. 12)
And if a man or woman shall rob, he or she shall be delivered up unto the law of the land.
And if he or she shall steal, he or she shall be delivered up unto the law of the land.
And if he or she shall lie, he or she shall be delivered up unto the law of the land.
(D&C 42:84–86)
[p. 67]
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