Questions and answers

‘Islanders Read the Classics’ takes on the Constitution and the Bill of Rights.

— MV Times file photo.

Anytime is a good time to talk about the Constitution and Bill of Rights. But especially so these days.

With so many references to these documents in newspapers and the media in general, they seem to have become a part of everyday conversation. So let’s discuss and debate them at the Old Town Hall in Aquinnah at 5 pm, Thursday, August 23. The Aquinnah Library’s Summer Lecture Series is holding an open forum in collaboration with “Islanders Read the Classics,” sponsored by The MV Times.

I plan to introduce the subject with some observations, mostly historical, none of which will be pontifical, only educational. We can consider the rise and decline and rise again of executive power, and how presidents past and present (and likely future) use their office to enhance their authority.

Where in the Constitution, for example, do we find presidential power to issue executive orders or executive agreements?

Can a president decide, pretty much on his own (we’ve only had male presidents), to make immigration decisions without consulting Congress? What does the Constitution say? What does federal law say? What did the Supreme Court rule just this past June?

Is there such a thing as “the unitary executive,” when the president acts alone when he decides an imminent threat to national security may harm Americans? Does he need input from the legislative or judicial branches?

Alexander Hamilton once wrote that “energy in the executive is a leading character in the definition of good government.” But did he mean that to the extent of how it has played out in the 20th and 21st centuries? Have presidents become unhinged?

More pertinently, as a result not only of the 2016 presidential election but also the 2000 election — as well as those in 1824 (John Quincy Adams vs. Andrew Jackson), 1876 (Rutherford Hayes vs. Samuel Tilden), and 1888 (Benjamin Harrison vs. Grover Cleveland) — what should we do about the Electoral College?

Lately in the news and on social media, we have been subject to words in the Constitution that we hardly ever think about, such as emoluments, treason, impeachment. These words arise, sometimes in anger, sometimes in disbelief, as we live in a time of increasing divisiveness, rage, and fear.

And what about legislative authority? Unlike Hamilton, James Madison contended that “in republican government, the legislative [branch] must necessarily predominate.”

Has Congress historically predominated? Does it today? What major pieces of legislation has Congress passed since the 2016 election, with the Republicans controlling House and Senate? And of course the White House.

Some observers have called for a renewal in what is known as “congressional government.” Should we do that? Do we want that?

Bear in mind that the very first article in the Constitution (and the longest) is devoted to the Congress, its organization, its powers, and its limitations. Did the framers get it right? Was Madison right? How should we count the census? How should we divide the House into congressional districts? The Constitution is silent.

Clearly Congress is charged with making the laws, but to what extent? Hamilton thought that its powers were not limited to the few outlined in Article I, Section 8. In a way, he was the very first person in government to favor “the administrative state,” or what its detractors call the “deep state.”

And what about the courts? The Constitution mentions only one court, the Supreme Court, and leaves it to Congress to create the rest. Of its powers, Article III only says that the Court shall adjudicate “cases and controversies,” nothing else.

But that’s not the end of the matter. In 1788, Hamilton wrote that the justices’ “duty … must be to declare all acts contrary to the manifest tenor of the Constitution void.” Fifteen years later, Chief Justice John Marshall, the longest serving chief, adopted Hamilton’s vision when he ruled that “it is emphatically the province and duty of the judicial department to say what the law is … This is the very essence of judicial duty.”

Both Hamilton and Marshall emphasized the judges’ “duty,” their responsibility. Today, we would call this “duty” judicial review, empowering the Court to determine whether any law or any action by an executive officer violates any constitutional provisions.

But has the Court gone too far? Have we gone from judicial review to judicial supremacy? Is that a good thing? We can look at its major rulings during the term that just ended and debate these questions.

These are only some of the issues we can cover. And we still haven’t gotten to the Bill of Rights.

Jack Fruchtman, a seasonal Aquinnah resident, teaches constitutional law and politics at Maryland’s Towson University. He will address these issues Thursday, August 23, at the Aquinnah Old Town Hall, at 5 pm as part of the Aquinnah Library Summer Lecture Series and The MV Times–sponsored “Islanders Read the Classics.”


  1. Massachusetts has enacted the National Popular Vote bill.

    The bill is 64% of the way to guaranteeing the majority of Electoral College votes and the presidency to the candidate who receives the most popular votes in the country, by changing state winner-take-all laws (not mentioned in the U.S. Constitution, but later enacted by 48 states), without changing anything in the Constitution, using the built-in method that the Constitution provides for states to make changes.

    It simply requires enacting states with 270 electoral votes to award them according to the nationwide, rather than the statewide, popular vote.

    All voters would be valued equally in presidential elections, no matter where they live.
    Candidates, as in other elections, would allocate their time, money, polling, organizing, and ad buys roughly in proportion to the population

    Every vote, everywhere, for every candidate, would be politically relevant and equal in every presidential election.
    No more distorting, crude, and divisive and red and blue state maps of predictable outcomes, that don’t represent any minority party voters within each state.
    No more handful of ‘battleground’ states (where the two major political parties happen to have similar levels of support) where voters and policies are more important than those of the voters in 38+ predictable winner states, like Massachusetts, that have just been ‘spectators’ and ignored after the conventions.
    We can limit the power and influence of a few battleground states in order to better serve our nation.

    The bill would take effect when enacted by states with a majority of the electoral votes—270 of 538.
    All of the presidential electors from the enacting states will be supporters of the presidential candidate receiving the most popular votes among all 50 states (and DC)—thereby guaranteeing that candidate with an Electoral College majority.

    • The National Popular Vote bill was approved in 2016 by a unanimous bipartisan House committee vote in both Georgia (16 electoral votes) and Missouri (10).
      Since 2006, the bill has passed 36 state legislative chambers in 23 rural, small, medium, large, Democratic, Republican and purple states with 261 electoral votes, including one house in Arizona (11), Arkansas (6), Delaware (3), The District of Columbia, Maine (4), Michigan (16), Nevada (6), North Carolina (15), Oklahoma (7), and Oregon (7), and both houses in California, Colorado (9), Connecticut, Hawaii, Illinois, New Jersey, Maryland, Massachusetts, New Mexico (5), New York, Rhode Island, Vermont, and Washington.
      The bill has been enacted by Connecticut (7), the District of Columbia (3), Hawaii (4), Illinois (19), New Jersey (14), Maryland (11), California (55), Massachusetts (10), New York (29), Vermont (3), Rhode Island (4), and Washington (13). These 12 jurisdictions have 172 electoral votes – 64% of the 270 necessary to bring the law into effect.

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