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.”
