Saturday, March 15, 2014

Core Value: Constitutional Government (1)

The Tea Party Movement core value of constitutional government can be summarized under four points:


--separation of powers

--checks and balances

--principle of representation

Let's look at them one at a time.

Federalism, or a federal government,  describes that feature of our Constitution that creates divided or concurrent jurisdiction between the general government and the state governments.

Alexander Hamilton in Federalist 9 described the concept in his defense against the accusations that the Constitution created a consolidated, national government:

"The definition of a Confederate Republic seem simply to be an "assemblage of societies" or an association of two or more states into one state. The extent, modifications, and objects of Federal authority are mere matters of discretion."

"The proposed constitution, so far from implying an abolition of the state governments, makes them constituent parts of the national sovereignty by allowing them a direct representation in the Senate, and leaves in their possession certain exclusive and very important portions of sovereign power. This fully corresponds, in every rational import of the terms, with the idea of a Federal government."

James Madison in  Federalist 39 also addressed this question. He argued that the new general government is part national and part federal. It is national in the operation of its powers: it acts directly on American citizens. It is federal in the extent of its powers: it possesses jurisdiction only in particular, limited objects appropriate for a general government. It "leaves to the several states a residuary and inviolable sovereignty over all other objects."

This introduces a second aspect of federalism: the idea of limited federal powers.

Madison elaborated on this topic in  Federalist 45:

"The powers delegated by the proposed constitution to the federal government are few and defined. Those which are to remain it the state governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which the power of taxation will for the most part be connected. 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."

In Federalist 46, Madison summarized this view and addressed another objection raised by some opponents of the Constitution: there cannot be two sovereigns. History, they said,  has never known such a construction.

Madison suggested a novel, even radical idea: sovereignty resides with the people.

"The Federal and State governments are in fact but different agents and trustees of the people, instituted with different powers and designated for different purposes. The adversaries of the Constitution  seem to have lost sight of the people altogether in their reasonings on this subject; and to have viewed these different establishments, not only as mutual rivals and enemies, but as uncontrolled by any common superior in their efforts to usurp the authorities of each other.  These gentlemen must be reminded of their error. They must be told that the ultimate authority, wherever the derivative may be found, resides in the people alone . . . ."

The constitutional conservatism of the Tea Party Movement and its adherence to the federal principle is hardly radical, as is charged by tea party opponents. It is the most fundamental of constitutional principles established by our founders.

What is radical is the idea that Congress can legislate at its pleasure, that the President can use his pen and phone to issue executive orders on any object, and that the Supreme Court can extend its judicial power to all cases whatsoever.

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