Can Words On Parchment Constrain Executive Overreach?

“Governments are instituted among Men, deriving their just powers from the consent of the governed.”

The Declaration of Independence used these words to legitimize our founding as a nation. Fifteen simple words, but they embodied a world-shattering idea. Kings supposedly derived their authority from God, but the Declaration declared that “all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” These subversive words flipped the divine right of kings on its head. Instead of kings, God endowed all of mankind with natural rights.

Words can be powerful.

That is, unless they’re ignored. The Constitution is the “supreme law of the land,” but many don’t accept that enumerated powers limit government action. Elected officials “solemnly swear … to preserve, protect and defend the Constitution of the United States,” but many view the words as cant uttered during a swearing-in ritual. Lesser laws are based on a reasonable man’s interpretation of the language, but many regard the “supreme law of the land” as a living document that can mean whatever we need it to mean on any particular day.

Did the Founders error in thinking that words scribed on parchment could secure our liberty? The Founders were many things, but naïve they were not. The Father of our Country and the Father of the Constitution had their eyes wide open. George Washington wrote, “No wall of words, that no mound of parchment can be so formed as to stand against the sweeping torrent of boundless ambition on the one side, aided by the sapping current of corrupted morals on the other.”

James Madison added in Federalist 48, “A mere demarcation on parchment of the constitutional limits of the several departments, is not a sufficient guard against those encroachments which lead to a tyrannical concentration of all the powers of government in the same hands.”

The Founders knew that words were not enough. Our republic’s survival has always relied on each generation courageously defending our heritage. The prerequisite, of course, is that each generation recognize our heritage. This used to be such a standard part of American schooling that Constituting America might not even have been necessary. Today my daughter can earn a political science degree from a California university without reading a single Federalist Paper. For the most part, legal immigrants know more about our national heritage than the citizens born and raised within sight of amber waves of grain.

If words cannot constrain executive overreach, what can? Only principled application of the powers bestowed by those words. Action, not recitation. As Madison wrote in Federalist 51, “The great security against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others.”

What assigned powers are available to “counteract” executive overreach?

The legislative branch’s checks on the executive include the power of the purse; impeachment power; authority to declare war; a veto override provision; approval of appointment to fill a vice presidential vacancy; a required presidential State of the Union address to Congress; and Senate approval of appointments, treaties, and ambassadors. Although not quite as obvious of a check, Congress can also refuse to pass a bill the president wants passed. This is relevant today because President Obama believes Congressional inaction somehow transfers legislative authority to him.

The judicial check on the executive is judicial review. The chief justice also sits as president of the Senate during presidential impeach­ment.

The Founders did not restrict the checks to the three Federal branches: They also intended the states to be a potent check on the national government. The Constitution once included five provisions for this purpose: Enumerated powers (later reconfirmed by the Tenth amendment); equal state representation in the Senate; senators elected by state legislatures; limited national taxing authority; and an Electoral College to select the president. Unfortunately, few in Washington consider the enumerated powers a constraint; senators are now popularly elected; the Sixteenth Amendment allows Congress to collect taxes on incomes, from whatever source derived; and the Electoral College is under attack. These provisions have severely weakened the states as a check on a growing national government, so the states have turned to lawsuits as their primary weapon.

Few people see a problem with executive orders that make or alter laws as long as the justification is wrapped in virtuous motives. Good intentions, however, do not make sound government. Even a benevolent authoritarian regime can morph into something quite nasty. It has happened time and again throughout history. It’s past time to correct the trim and steer the ship of state back onto a constitutional course.

Which powers should Congress and the courts use? The sagacious Madison again provides the answer. “The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack.”

This essay was originally published by James D. Best at Constituting America.