Chapter 3
The Main Provisions of the Constitution
A brief consideration of some of the main provisions of the Constitution will show how the Framers built in those essential requirements.
The Constitution is a fairly short document consisting of seven separate Articles. The first three Articles pertain to the three branches of our government: legislative, executive, and judicial.
Article I—The Legislative Branch
Section 8 of Article I sets forth the lawmaking powers conferred upon the federal government.
Some examples of these conferred powers are powers over interstate and foreign commerce, naturalization of new citizens, coining money and fixing standard weights and measures, establishing post offices and post roads, and powers pertaining to war and the military forces.
The powers listed are consistent with the intention of the Framers and with the understanding of the people at the time the Constitution was drafted and adopted, that the authority delegated to the federal government was to be only in those areas where individual action by the people or the separate states would be inappropriate.
This limited federal government concept is explained by James Madison in The Federalist in these words:
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. [p. 14] 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 of 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.(1)
Constitution Protected Authority of States
The Constitution not only recognized the authority of the states over local matters, but provided a means for protecting that authority against federal encroachment. This was accomplished through giving the states representation in the federal government. Under the Constitution as framed and ratified, the senators were not representatives of the people directly. Instead, they were chosen by the state legislatures as representatives of the states.(2) This representation in the federal government through selection of senators enabled the states to have an element of control over federal legislation and, thereby to protect themselves against federal encroachment.
This function of the Senate in protecting state authority against encroachment by the federal government is explained in The Federalist in these words:
The equal vote allowed to each State is at once a constitutional recognition of the portion of sovereignty remaining in the individual States, and an instrument for preserving that residuary sovereignty.(3)
Another advantage accruing from this ingredient in the constitution of the Senate is, the additional impediment it must prove against improper acts of legislation. No law or resolution can now be passed without the concurrence, first, of a majority of the people, and then, of a majority of the States.(4)
When the 17th Amendment(5) was adopted in 1913, most people who favored it probably thought they were [p. 15] being modern and progressive in providing for direct election of senators. But by depriving the states of their representation in the federal government, this amendment eliminated the principle constitutional device designed to enable the states to protect themselves against federal encroachment.
Article II—The Executive Branch
No part of the Constitution gave the Framers greater difficulty than that pertaining to the executive.(6)
Great concern was expressed over the possibility that the President might become a dictator or tyrant. To prevent this, consideration was given to the advisability of having more than one president at one time, and of making the executive dependent upon the legislature.(7)
The President was made commander-in-chief of the armed forces, but was not given the power to declare war.(8) Under the Constitution only Congress can declare war.(9) Furthermore, congressional appropriations of money to support armed forces are constitutionally limited to two years.(10)
The President makes treaties with the advice and consent of the Senate, but these are not effective until ratified by two-thirds of the senators present.(11)
His principal peacetime duty, as set forth in the Constitution, is to take care that the laws passed by Congress are faithfully executed.(12)
Framers Opposed Popular Election of President
The Framers used great care to design a workable system. One problem they especially avoided was that of placing a function or responsibility upon a part of the [p. 16] government when that particular part was not in a position to perform that function or responsibility successfully.
Their avoidance of this problem is especially evident in the arrangements they devised for the selection of the President. They felt on the one hand that the people should be involved in the selection of the chief executive. But on the other hand, the Framers strongly opposed popular election of the President because they felt that the people were not in a position to make a wise selection.(13) This point of view was expressed in The Federalist in these words:
The immediate election should be made by men most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice. A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations.(14)
This attitude that the people themselves were not in a position to select their chief executive wisely was one of the reasons the Framers provided for the election of the President by a limited number of electors chosen for the specific purpose of selecting the President rather than by the people directly.
It is interesting to note how similar the electoral college system is to the method of selecting LDS Church officials. In both cases the qualification of persons whose names are suggested are discussed and evaluated by a small group in the light of the requirements of the specific position. The actual selection is then made, not directly by the people to be presided over, but by the small group or by the presiding authority within the small group. Yet in each case, the selected official functions with the consent of the governed. In the Church, this consent is given when the person selected is presented to the larger group involved [p. 17] for its sustaining vote. Under the electoral college system, consent is given in advance through empowering the electors to make the specific selection.
In recent years there have been increased suggestions that the Constitution should be amended to eliminate the electoral college system of selecting the president. One of the reasons given is that the electoral college is no longer performing its intended function because the "electors are now merely 'rubber stamps' registering the opinions of their political party.''(15)
It is sometimes said that the failure of the electoral college system to perform its intended function resulted from the failure of the Framers to foresee the growth of the major political party system. However, the Framers did foresee and were much concerned about the possible future growth of major political parties.(16)
It does seem to be a fact that the influence of major political parties has prevented the electoral college from functioning as intended by the Framers. In considering whether the Framers were wise or mistaken in designing the electoral college system of selecting the President and in opposing political parties, the matters discussed in Chapter 6 entitled "The Framers' Attitude Toward Political Parties" should be carefully considered.
Furthermore, a major purpose of the Framers in providing for the indirect selection of the president was to make the government less democratic. For a consideration of the Framers' attitude toward democracy see Chapter 7 entitled "Did the Framers Establish a Democracy?" One of the objections of the Framers to democracy was that they believed that in a democracy public decisions would tend to be mass emotional decisions of an uninformed or misinformed populace.
Those who have been involved in actual political events, as this writer has, know how different public information [p. 18] may be from the real facts. It would seem that the quality of political information available to the public may not have changed greatly since Thomas Jefferson wrote:
Nothing can now be believed which is seen in a newspaper. . . . The real extent of this state of misinformation is known only to those who are in situations to confront facts within their knowledge with the lies of the day. I really look with commiseration over the great body of my fellow citizens, who, reading newspapers, live and die in the belief, that they have known something of what has been passing in the world in their time. . . . General facts may indeed be collected from them, such as that Europe is now at war . . . but no details can be relied on.(17)
Under the Constitution, the President is to be selected by electors chosen by their fellow citizens for their integrity, wisdom, and knowledge of men and affairs. Is it likely that the greater misinformation of the general public will result in a wiser choice of a President?
Article III—The Judicial Branch
Article III pertains to the judicial power and declares that such power shall be vested in one Supreme Court and in such inferior courts as Congress may from time to time establish.(18)
As designed and drafted by the Framers, federal judicial power does not extend to ordinary matters involving the daily lives of the people within individual states. Instead, it is a limited power extending only to those areas peculiarly appropriate to federal jurisdiction, such as cases pertaining to the Constitution, treaties with foreign nations, the laws of the United States, and controversies between states or between citizens of different states.(19) [p. 19]
These limitations on federal judicial power are in conformity with the already mentioned intent that the power of the federal government be limited to those areas where separate action by the states or the people would not be appropriate because of the nature of the problem.
This separation into the federal areas of authority and the state or local areas of authority was intended as a part of the system of separation of powers and checks and balances. Separation of powers between federal authority on the one hand and state or local authority on the other is sometimes called vertical separation of powers. The expression horizontal separation of powers usually refers to the relationship between the legislative, executive, and judicial branches of government.
It is important to bear in mind that this vertical and horizontal separation of powers under the Constitution resulted in a division of the power of government among four distinct groups. The first three groups are the three branches of the federal government. The fourth group is the separate sovereign state governments.
Significantly, the Framers made the selection of federal judges subject to mutual agreement of the other three of those four groups. The method by which this was done is as follows: The president's authority over selection of federal judges was to be exercised by limiting the choice to those nominated by him.(20) The authority of the legislative branch of the federal government was to be exercised by requiring approval of the Senate.(21) The authority of the state governments was exercised by the fact that the senators were representatives not of the people directly but of the states as states.(22)
Although the Constitution originally provided that the senators were representatives of the states as states and did not directly represent the people, this provision was changed by the Seventeenth Amendment adopted in 1913. [p. 20]
That amendment deprived the states of their previous constitutional control over the selection of federal judges by providing for the election of senators by the people directly.
As a further aspect of separation of powers, once the judges are appointed, the Constitution makes them independent of those involved in appointing them. This is done by providing that they may not be removed during good behavior and that their salaries may not be reduced.(23)
This independence of the judicial branch is a necessary part of the system of separation of powers and checks and balances. For example, Alexander Hamilton wrote in The Federalist:
The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority. . . . Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void.(24)
Does the power to declare acts of Congress unconstitutional make the judiciary superior to the other branches? This question is discussed in The Federalist as follows:
Nor does this conclusion by any means suppose a superiority of the judicial to the Legislative power. It only supposes that the power of the people is superior to both—and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former.(25)
How Constitution Protects Against Judicial Usurpation
It will be noted that the comments just made pertain to the right and duty of the judicial branch to prevent [p. 21] usurpation of authority by Congress. What checking and balancing provision does the Constitution contain to protect the constitutional system if the Supreme Court should itself misconstrue the Constitution and usurp authority?
In drafting the Constitution, the Framers also provided a method of checking and balancing the power of the judicial branch. The Constitution provides that the jurisdiction of the Supreme Court over all cases, except those involving representatives of foreign countries and the states of the United States, is subject to the control of Congress. This is handled in the Constitution by making the appellate jurisdiction of the Supreme Court subject to such exceptions and regulations as Congress shall make.(26) Since nearly all cases heard by the Supreme Court are there on appeal, this provision gives Congress the power to deprive the Supreme Court of the right to hear most of the cases now decided by it. Congress also has the power to control the jurisdiction of the lower federal courts by virtue of its power to "ordain and establish" them.(27)
The above-mentioned authority of Congress over the jurisdiction of the Supreme Court and the lesser federal courts is not a conjectural interpretation, but has been repeatedly recognized.(28) It has even been used in the extreme case of taking from the Supreme Court the power to decide a specific case upon which it had already heard arguments.(29)
While Congress is not likely to modify greatly the jurisdiction of the Supreme Court and other federal courts except in unusual circumstances, the power to do so gives the legislative branch an effective method of checking and balancing the judicial branch. [p. 22]
Article IV—General Matters Concerning States
Article IV pertains particularly to general matters concerning states.
It includes provision for recognition by each state of the laws and judicial proceedings of the other states.
It contains the privileges and immunities clause, under which no state may discriminate against citizens of other states without some independent reason for a different classification .
It provides for the admission of new states, and guarantees to every state a republican form of government.
Article V—Amendments
Article V pertains to amendments to the Constitution. The Framers intended that it be difficult to change the Constitution with its safeguards of liberty. They felt that a constitution subject to change with the same ease with which laws are passed and repealed would not provide any real deterrent to enactment of laws restricting liberty.
The Federalist contains the following worthwhile statement by James Madison concerning ease or difficulty of the amendment procedure:
It guards equally against that extreme facility, which would render the Constitution too mutable; and that extreme difficulty, which might perpetuate its discovered faults.(30)
Under the Constitution, there is not only a difficult procedure for initiating proposed amendments, but it also provides that proposed amendment is to be valid only when ratified by the legislatures of three-fourths of the states, or by conventions in three-fourths of the states.
Article VI—Miscellaneous Provisions
Article VI covers several miscellaneous items and includes the supremacy clause. This clause provides that [p. 23] the Constitution, laws of the United States, and treaties of the United States shall be the supreme law of the land.
The supremacy clause does not increase the powers granted to the federal government or make the federal government supreme over the states in all matters.
What the supremacy clause does is make clear that in those areas where power has been granted to the federal government, state court judges shall enforce federal law rather than state law.
Article VII—Ratification
Article VII pertains to ratification by the states when the Constitution was originally proposed. Its significance is mainly historical. [p. 24] [p. 25]
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