Examining Congress and the PresidentPosted: August 21, 2013
When the Constitution was sent to the states for ratification in 1787, many citizens worried that the new national government proposed by the document was a Leviathan in waiting. In other words they viewed the Constitution as this huge monster eagerly awaiting the federal side from coming in and taking over the States.
During the crucial New York ratification debate, James Madison, writing as Publius, sought to allay these fears in the 45th Federalist Paper by emphasizing that adoption of the Constitution would create a government of enumerated, and therefore strictly limited, powers.
Madison said: “The powers delegated by the proposed Constitution to the federal government are few and defined… [and] will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce….” And we have no doubt whatsoever that Madison was a testament with his words.
Federal tax collectors, Madison assured everyone, “will be principally on the seacoast, and not very numerous.”Exactly six months after publication of this essay, New York became the 11th state to ratify the Constitution.
One of the most contentious and long-running Founding-era controversies concerned, of all things, Congress’s enumerated power in Article I, section 8, clause 7 “to establish Post Offices and post Roads.”
For more than half a century, some of the country’s most eminent legal minds, including Thomas Jefferson, James Madison, James Monroe, and Joseph Story, vigorously debated whether this clause gave Congress power to create new roads or merely to designate existing, state-created roads as postal delivery routes. Jefferson and Monroe, among others, staunchly maintained the latter, and the issue divided the Supreme Court as late as 1845 before the matter was definitively settled in favor of congressional power to create roads.
The postal power was also the locus for one of the earliest discussions of the so-called nondelegation doctrine, which explores the limits, if any, on Congress’s power to vest broad discretion in executive or judicial actors. During the Second Congress, in 1791, the House of Representatives debated a proposal to authorize the carriage of mail “by such route as the President of the United States shall, from time to time, cause to be established.”
And the ensuing debate caused some unusual debates. All of this sounds and is relative to our nation specifically, the unconstitutional power bestowed on the President that violated checks and balances with the separation of powers.
Several representatives objected strenuously that the amendment, by granting the President unconstrained discretion to determine postal routes, would unconstitutionally delegate legislative power.
To be sure, one cannot say definitively that Congress chose to specify the precise postal routes solely or even primarily because of constitutional concerns; after all, the power to designate a town as part of a postal route was the 18th century version of an earmark.
But then again this example illustrates the kinds of questions that raised serious constitutional concerns in the Founding era. The amendment was defeated, and the final legislation specifically designated the postal routes town by town.
On November 26, 1796, the city of Savannah, Georgia, was devastated by a fire. Representatives introduced legislation calling for federal aid to rebuild the city. In the course of significant debate on the measure, Representative Nathaniel Macon from North Carolina remarked that:
The sufferings of the people of Savannah were doubtless very great; no one could help feeling for them. But he wished gentlemen to put their finger upon that part of the Constitution which gave that House power to afford them relief…. He felt for the sufferers…but he felt as tenderly for the Constitution; he had examined it, and it did not authorize any such grant.
Representative Andrew Moore of Virginia, among others, agreed: “Every individual citizen could, if he pleased, show his individual humanity by subscribing to their relief; but it was not constitutional for them to afford relief from the Treasury.”
We hope you have enjoyed this comparative type of research writing. We would like to move on via Hurricane Katrina, followed by the Troubled Asset Relief Program and how something as simple as TARP turns into the biggest bail-out known today.