The U.S. Constitution in a Nutshell: O’Donnell Is Right, Coons Is Wrong

October 17th, 2010

By Dan Miller

The Constitution is short and simple but fragile and endangered. We should not allow politicians to euthanize it.

The United States Constitution is short and easy to read. It is far shorter and easier to read than most legislation, excepting such fluff as a declaration of a “National Eat Healthy Day.” The guts of it are that the federal government can lawfully exercise only those powers the Constitution grants; everything else is reserved to the states and to the people. The Tenth Amendment of the Bill of Rights says:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The Fourteenth Amendment of the Constitution, among other things, extended to state governments some but far from all of the prohibitions on the federal exercise of power:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The Fifteenth Amendment expressly limits the power of both the federal and state governments:

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

Over the years, the impact of federal laws on individual citizens, as well as on the states, has become engorged by minimizing or ignoring constitutional limitations. These expansions originate with the Congress and the administrative agencies the Congress creates, as well as with executive orders. No legislation should be passed, and no executive order issued, without a clear and detailed statement of its constitutional basis. The federal government should not be permitted to rely upon bases not stated if the stated basis fails.

According to this article:

I have been fascinated by Christine O’Donnell’s constitutional worldview since her debate with her opponent Chris Coons last week. O’Donnell explained that “when I go to Washington, D.C., the litmus test by which I cast my vote for every piece of legislation that comes across my desk will be whether or not it is constitutional.” How weird is that, I thought. Isn’t it a court’s job to determine whether or not something is, in fact, constitutional? And isn’t that sort of provided for in, well, the Constitution? In 2003, O’Donnell said of the Supreme Court that “it’s kind of like we have the nine people sitting there in Washington who have a constitutional monarchy and that is an abuse of the system.” So I do wonder a little whether she’s claiming that her view of what’s constitutional trumps theirs. Not a lot of space for checks and balances in that reading.

To the contrary, Ms. O’Donnell got it about right, demonstrating a healthy regard for the Constitution and the separations of powers it created. I would extend the thought to executive orders and also to the actions of our ubiquitous and very powerful administrative agencies, which all too often pay insufficient attention to the statutes authorizing them.

As observed by Judge Tatel of the D.C. Circuit Court of Appeals in an address to folks at the EPA:

As its most fundamental inquiry, administrative law calls upon courts to determine whether an agency’s action falls within the scope of its authorizing legislation. This task often involves no more than reading the law. Then‐Professor Felix Frankfurter, one of the fathers of administrative law, famously admonished his students: “(1) read the statute; (2) read the statute; (3) read the statute!” This is self‐evidently good advice, but you’d be surprised how often agencies don’t seem to have given their authorizing statutes so much as a quick skim. … After all, agency authority comes only from Congress. If the agency can’t reasonably trace its action to a statute, it has no business acting. Although agencies are more accountable than courts, Congress is more accountable still.

As an attorney involved for many years in cases involving the Federal Communications Commission, I know that Judge Tatel was right on point.

The legislative and executive branches obviously do not have the final say on what’s constitutional and what isn’t. That’s up to the courts and ultimately to the Supreme Court. However, the legislative and executive branches do have the first and second says and that’s very important. An imperfect analogy might be made: We The Peons get the first opportunity to decide whether something we want to do is lawful; if we do it and the courts decide that it was unlawful we suffer the consequences (or at least should; sometimes, there are no consequences).

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10 Responses to “The U.S. Constitution in a Nutshell: O’Donnell Is Right, Coons Is Wrong”



  1. Tom Carter |

    The Constitution does not include the idea that the Supreme Court is the final arbiter of the constitutionality of acts by Congress or the Executive Branch. It was assumed that all three branches of government would adhere to it. That changed fairly quickly in 1803 with Marbury v. Madison, in which the Supreme Court under Chief Justice Marshall established the principle of judicial review. It might seem logical that the Court would perform that function, but it didn’t necessarily have to be that way.

    Congress and the President both have clear responsibility for acting constitutionally, both through their oaths of office and in their power and authority. For example, if the Court were to rule that the individual mandate in the health care law is not consistent with the Commerce Clause, Congress could amend the law and establish the penalties as taxes, which undoubtedly would be constitutional. Beyond that, Congress has the power to limit the jurisdiction of the federal courts (Article III). To say, then, that a member of Congress should not consider the constitutionality of a law before voting for it is inane. The Supreme Court may have evolved as the final arbiter, but it certainly isn’t the only one.


  2. Brian |

    Tom said

    For example, if the Court were to rule that the individual mandate in the health care law is not consistent with the Commerce Clause, Congress could amend the law and establish the penalties as taxes, which undoubtedly would be constitutional.

    No more constitutional than any other penalty/fine the federal government prosecutes persecutes us with for failing to act. The income tax comes to mind.


  3. Tom Carter |

    Brian, you’re conflating what you wish were true with what actually is the Constitution and the law. The income tax and taxes in general are constitutional and lawful. If you don’t want to pay taxes, or only taxes for things you approve of, then you need to drum up enough public support to amend the Constitution and pass new laws. Good luck.


  4. Brian |

    Tom, in spite of what the courts have held, enforcing income tax law is a direct violation of the 4th, 5th, and 6th amendments. The definition of “due process of law” has been conveniently changed/ignored in order to have Title 26 enforcement compliant with constitutional principles.

    So, like I said, changes to health care law where the penalties magically become “taxes” doesn’t change the nature of the beast. At best, we’re just putting frosting on a turd.


  5. Tom Carter |

    This is like debating how many angels can dance on the head of a pin. Some may find it interesting, but in practical terms it doesn’t mean anything. The 16th Amendment, which is part of the Constitution, says “The Congress shall have power to lay and collect taxes on incomes….” That means, plain and simple, that the income tax is constitutional.

    Like I said, gather up enough support and get the Constitution amended again. Note, however, that your amendment will have to specifically say that an income tax is prohibited because the basic document is silent on the question.


  6. Brian |

    Note, however, that your amendment will have to specifically say that an income tax is prohibited because the basic document is silent on the question.

    Actually, that silence has ALWAYS been taken to mean that there is no authority to do it.

    Do not divorce yourself from reason simply for the sake of the 16th amendment. Does Title 26 grant the government the POWER to have access to your person, papers and affects without a warrant? Does Title 26 obviate your right to not provide self-incriminating evidence to the government? Does Title 26 not deprive people of property without benefit of a trial by a jury of their peers?

    Of course it does, and it’s sophistry to argue otherwise. But the courts have said the the federal government can get away with this. Therefore, it’s “constitutional.”


  7. Tom Carter |

    You’re flogging a dead horse. A simple reading of the 16th Amendment doesn’t require that reason be abandoned. It says what it says. The income tax is constitutional, regardless of whether you think the Constitution did or did not permit it prior to the amendment. I don’t see what’s so hard to understand about that.

    As far as the investigative and enforcement powers given by law to the IRS are concerned, I agree that they’re overbroad. But that’s a question of the law, not constitutionality. Again, if you don’t like it, get the law changed.


  8. Brian |

    I can tell you with no equivocation that if I had done, as an officer in the Houston Police Department, what the IRS routinely does vis-a-vis the 4th, 5th, 6th and 14th amendments, I would have been fired and sent to federal prison.

    Those amendments do not list exceptions for tax code enforcement. They are very strict prohibitions on the what government may do when attempting to deprive free people of life, liberty, or property.

    I am acutely aware that tax law has been granted, unconstitutionally I might add, a “special privilege” when it comes to such things. That doesn’t mean that it comports with the constitution, it just means that the entire system is either corrupt or misguided.


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