Constitutional Power, Unlimited

Every day I receive via email the Founder's Quote Daily which contains historical quotations from the likes of Benjamin Franklin, George Washington, Alexander Hamilton, etc. They're usually one or two sentences long and pertain to our government and society. Today's was no exception.

 

Today's quote was taken from "The Federalist Papers No. 23" which was written by Alexander Hamilton using the nom de plume of Publius. For an explanation of this paper, let's turn to Wikipedia:

In the first 22 Federalist Papers, Publius argued for the importance of the Union and that the Articles of Confederation were insufficient to preserve the Union. Federalist No. 23 begins a series of fourteen articles arguing the basic thesis that an energetic federal government was necessary. Too-powerful governments were a major worry in America, which had declared independence from Britain partly due to a belief that the government in London inappropriately dominated the local governments in the colonies. Hamilton tried to allay popular fears that the new federal government would be no less abusive than the British government so recently rejected.

While large, intrusive, and all-to-powerful government is common today, it was a big worry to American's of 1787. They had just thrown off one government that was too oppressive. In replacing it, they instituted the Continental Congress, which many think went too far the other direction, i.e. not powerful enough. In an effort to fix it's shortcomings, each state sent representatives the Philadelphia with instructions to give as little power as possible to central government; no power would be best.

 

Failing to follow the State's simple instructions to fix the Articles of Confederation, the delegates emerged from Independence Hall with an entirely new constitution. One of the proponents for a large central government was Alexander Hamilton. In an effort to sell the newly-minted constitution to the states, he began to publish papers in newspapers debating the merits of the new constitution. This is, of course, where The Federalist Papers comes from. When you here arguments claiming "original intent," they are usually referencing this collection of papers.

 

Fast-forward to today. Recent events have raised the question of, "How much power does the Executive have?" This administration has worked tirelessly to gather to itself ever more power by claiming powers under the unitary executive theory. Again, let's turn to Wikipedia:

The theory relies on the Vesting Clause of Article II which states "The executive Power shall be vested in a President of the United States of America." Proponents of the unitary executive use this language along with the Take Care Clause ("[The President] shall take care that the laws be faithfully executed...") to argue that the Constitution creates a "hierarchical, unified executive department under the direct control of the President."

The theory goes on to state that only the President has control over his subordinates. They argue that Congress essentially exceeds it's constitutional authority by attempting to limit or control executive agencies or officers from Presidential control. There's more, but I think you get the basic premise that the Executive claims absolute and total authority of it's subordinates and anything less would be a usurpation of power.

 

So, imagine my surprise when I read today's Founder's Quote Daily:

"The circumstances that endanger the safety of nations are infinite, and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed."

~ Alexander Hamilton (Federalist No. 23, 17 December 1787)

My first thought was, "Oh boy, we're in trouble now." The language seems pretty clear. No constitutional restraint of power can be imposed on those charged with defending this country. My next thought: "Was the President correct when he declared that he was within his constitutional authority to order surveillance on Americans?" Looking at Hamilton's quote, I'd have to conclude that he probably was. How can this be?

 

Then a voice inside said, "Check the context!"

 

I cannot count the times I've discovered that when a reporter says so-and-so said this-and-such that, in fact, the reporter actually took the quote out of it's original context, totally changing it's meaning. So, let's look at what Hamilton was actually driving at when he wrote that sentence:

The authorities essential to the care of the common defense are these--to raise armies--to build and equip fleets--to prescribe rules for the government of both--to direct their operations--to provide for their support. These powers ought to exist without limitation: Because it is impossible to foresee or define the extent and variety of national exigencies, or the correspondent extent & variety of the means which may be necessary to satisfy them. The circumstances that endanger the safety of nations are infinite; and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed. This power ought to be co-extensive with all the possible combinations of such circumstances; and ought to be under the direction of the same councils, which are appointed to preside over the common defense. (Emphasis in original.)

What is Hamilton talking about? Let's look at the subjects of "unshackled" restraint:

To raise armies,

To build and equip fleets,

To prescribe rules for the government of both

To direct their operations,

To provide for their support.

These are all powers assigned to Congress under Article 1, Section 8. Therefore, the quote claiming that "no constitutional shackles can wisely be imposed on the power" was pointed at the Legislative and not the Executive branch. In my opinion, this knocks a big whole in the unitary executive theory.

 

What's the lesson learned? Original intent... Always check it.

 

(Note: There's more to this, but my time has expired. I may pick this up again at a later date... We'll see.)