Friday, February 22, 2008

The Real Constitution: I

This is the first installment of an effort to contrast the present, judicial interpretation of the Constitution with its original meaning, section by section and clause by clause. I draw heavily on The Heritage Guide to the Constitution (hereafter Heritage Guide). All quoted passages of the Constitution (including the Bill of Rights and other amendments) are from the version published by the National Records and Archives Administration.


We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
The Preamble has no substantive legal meaning, but it is significant because it specifies the Constitution's purposes. The most commonly misunderstood term in the Preamble is "general Welfare," a term which recurs in the Spending Clause of Article I, Section 8. I will deal with the Spending Clause in its turn. As for the Preamble:
The word "Welfare" is crucial: in the eighteenth century the definition of welfare included well-being., but it also and equally encompassed happiness.

The Preamble as a whole, then, declares that the Constitution is designed to secure precisely the rights proclaimed in the Declaration [of Independence]. The Constitution was therefore not the negation of the Revolution; it was the Revolution's fulfillment.

Forrest McDonald, Heritage Guide, p. 46
All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

(Article I, Section 1)
Much of what Americans and American businesses are permitted to do, under the regime that controls our lives and livelihoods, is determined not by legislation but by regulation. Congress has divested much of its legislative authority to the executive branch, where regulators do the work of legislators:
In 1928, the [U.S. Supreme] Court upheld a statute delegating the the President the power to adjust tariffs to any rate, within a wide range, he found necesary to "equalize the ... differences in costs of production in the United States and the principal competing country." J.W. Hampton, Jr. & Co. v. United States. In that case the Court for the first time set out what remains the governing standard: a "legislative action is not a forbidden delegation of legislative power" if the "Congress shall lay down by legislative act an intelligible principle to which the person or body [to whom power is delegated] is directed to conform."...

[Thus t]he Court found in Whitman v. American Trucking Associations, Inc. an intelligible principle in Congress's directive to the Environnmental Protection Agency to promulgate air quality standards "requisite to protect the public health" with "an adequate margin of safety." Because no standard could eliminate all significant adverse effects to health, the statute effectively delegated to an unelected and unaccountable agency the decision how far our society should go and how many billions of dollars should be spent to reduce the adverse health effects of industrial pollution, a decision that seems quintessentially legislative, but undoubtedly one for which legislators would prefer to avoid responsibility.

Douglas Ginsburg, Heritage Guide, pp. 47-8
See "The Constitution: Myths and Realities".