Lawmaking Powers

The eighth principle of the United States Constitution is found in Article I.1.1 (Article I, section 1, paragraph 1). This principle is: All legislative or lawmaking powers granted by this Constitution shall be vested exclusively in the Congress of the United States. This principle means that we as the people of the United States have the Right to expect the majority of our representatives to review and approve every proposal before it becomes a federal law. Our Founding Fathers made the law-making procedure as safe and secure as they could possibly make it. "Their legacy to future generations included a series of highly significant guidelines for Congress" (W. Cleon Skousen in The Making of America - The Substance and Meaning of the Constitution, p 250). Skousen included a list of the safeguards desired by the Founders: 1) "Federal laws should be few in number," 2) "Each law should be written in simple, non-technical language," 3) The House had the responsibility to "scrutinize proposed laws as the representatives of the people," 4) The Senate had the responsibility to "scrutinize new laws as the representatives of the states, 5) The President had the responsibility to scrutinize "new laws from a national viewpoint, 6) "The Courts must scrutinize new laws in terms of the Constitution." Skousen continued, "With so much good advice concerning the lawmaking process, it was no doubt expected that the proper procedure would remain strictly within its prescribed limits, particularly in view of the statement in Article I, section 1, that ALL lawmaking authority would be vested exclusively in the Congress. However, that is not what happened" (The Making of America, p 251). The Founders intended that each state would remain sovereign in its responsibilities and that the Federal government would stick to its own responsibilities. Congress gradually passed laws that encroached on the rights of the states, and both the Executive Branch and the Judicial Branch began "writing laws" in their own unique ways. Since 1887, requirements known as "administrative law" has been issued by various governmental agencies. These "administrative laws" are enforceable in the courts just like laws made by Congress. In addition, Presidents have taken to writing executive orders, which are also enforceable in the courts. Executive orders started as administrative orders to the government agencies but did not affect the public. These executive orders gradually increased in number and influence. An example of how gradual they grew is a comparison between the 71 executive orders written by President Grover Cleveland and the 51 issued by President William McKinley with the 1,006 issued by President Theodore Roosevelt. By January 1985, the official count of executive orders numbered 12,498, and there have been many written since that time. The Founders required that all treaties with foreign governments be approved by the Senate, but Presidents began making secret executive agreements with foreign nations. The Yalta Agreement in 1945 between President Franklin D. Roosevelt, Winston Churchill, and Joseph Stalin is an example of the agreements made. Neither the Senate nor the American people know today all the commitments made by Roosevelt at Yalta. The Judicial Branch also got into the act of "writing laws." The courts would take authority from Congress to do "judicial legislation" or authority from the Executive Branch to do "judicial administration." It is obvious that all three branches of the Federal Government have a difficult time sticking to the Constitution! The Founders provided two means of safety for the lawmaking process, whether the laws are made by Congress or the courts. The first way gave the state legislatures power to reverse decisions made by Congress or courts by calling for a convention to amend the Constitution. This regulation was written in such a way that neither Congress nor the courts could prevent it. Alexander Hamilton said, "In the fifth article of the plan [as provided in the Constitution], the Congress will be obliged on the application of the legislatures of two-thirds of the states to call a convention for proposing amendments which shall be valid, to all intents and purposes, as part of the constitution, when ratified by the legislatures of three-fourths of the states, or by conventions in three-fourths thereof." Hamilton continued, "The Words of this article are peremptory [mandatory]. The Congress `shall call a convention.' Nothing in this particular [provision] is left to the discretion of that body…. We may safely rely on the disposition of the state legislatures to erect barriers against the encroachments of the national authority" (as quoted in The Making of America, p 256). The second means of safety for the people was the common jury. This was thought by the Founders to be the most powerful weapon of defense against abusive government - but the Supreme Court took away half of its power in 1895. Since that time the people do not have the right to judge the law. If the people of the United States are to regain control of the Federal government, the "first safety net - the power of the state legislatures to call a convention and reverse the Congress and the courts - must become operational. As of 1985 it has never been used. This device could then be employed to restore the powers of the common-law jury. After that a carefully structured "New Bill of Rights" could be submitted to a constitutional convention, which would restore the original genius of a divided, balanced, and limited government as envisioned by the Founders…. We must have a generation of Americans who believe in the Founders' original success formula and who have the ingenuity and grit to restore it as the Founders initially planned it" (The Making of America, p 257). I have not found any indication that a constitutional convention has ever been held, but I did read somewhere that one was threatened until Congress approved one of the Amendments that we now have. This health care bill that is currently working its way through Congress may just be the one that forces a constitutional convention. I do not know of a simple way to teach this principle to children because I am having a difficult time getting my own brain around this concept - or at least why we are having problems with it today. I believe that we can put the blame for this problem on the progressive movement also since the bigger problems have come about in the past hundred years since the progressive movement began.