Impeachment - Article 1, Section 2, Clause 5

"The House of Representatives...shall have the sole Power of Impeachment."


Comment: The Framers were concerned that federal officials would not monitor each other. As a result, the Framers wanted a tool that would allow Congress to discipline those who abused their constitutional duties, while at the same time preserving the separation of powers between the branches. In working their way through the issue, one delegate made a proposal that allowed for Congress to remove the President if requested by a majority of the State legislators. However, that proposal was rejected on the grounds that it would subject the President to the manipulation of the States. In the end, the Framers decided to go with what most of the States' constitutions were following.

As expected, the Framers wanted the "sole Power" of bringing charges of impeachment to be vested in the Legislature, because that branch is closest to the people. The Constitution is silent on how the House is to initiate impeachment proceedings; so, early on a Member would rise on the floor and propose impeachment, which would then be assigned to a committee. Currently, Members of the House Judiciary Committee initiate impeachment proceeding with recommendations to the whole House. If the House approves an impeachment resolution, then the Chairman of the Judiciary Committee recommends "managers," which the House also approves by resolution, who then become prosecutors in the trial in the Senate.

Although it seems reasonable to presume that House has some sort of affirmative duty to monitor officials, most experts agree that because the House is vested with the "sole Power," a decision whether to initial impeachment proceeds is not reviewable by the Courts. In any event, only a few impeachments have occurred. In fact, the House has only moved seriously to impeach 18 officials in the more than 200 years since the Constitution was ratified, including two presidents (Andrew Johnson and William Clinton, both acquitted in the Senate; Nixon resigned prior to the House voting), one cabinet member, one senator, and 13 judges.

Primary Source. The Heritage Guide to the Constitution.


http://theconstitutionallawblog.blogspot.com

Speaker of the House - Article 1, Section 2, Clause 5

"The House of Representatives shall chuse their Speaker and other Officers...."

Comment: This provision was generally taken from the Massachusetts Constitution of 1780. It clearly establishes the House's power to choose its own leadership. The House of Representatives elects its Speaker first before the House formally adopts its rules of procedure for the legislative term. A candidate must receive a majority of the votes cast. The Speaker is the primary legislative leader of the body - as a result, the Speaker declares and defends the agenda of the majority party. The Speaker's role has largely been shaped by traditions and customs as the Constitution does not state the duties of the Speaker. Therefore, traditionally, the Speaker does not usually debate, vote, or sit on any standing committees. The Speaker has enormous power, which includes the power to appoint members and chairmen of committees, and the power to control the timing and content of bills brought before the house.

Primary Source. The Heritage Guide to the Constitution.

Executive Writs of Elections - Article 1, Section 2, Clause 4

"When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies." 

Comment: The Framers did not want to see "the people" go unrepresented.  As a result, this clause provides the power to fill a vacant House seat by a special election. The Constitution vests that power with the State Executive - i.e., the State's Governor. The Governor has substantial discretion as to the timing of special elections; but, as a general rule, has affirmative duty to issue writs of election to fill vacancies unless the unexpired term were exceedingly short.


Primary Source. The Heritage Guide to the Constitution.

Allocation of Representatives - Article 1, Section 2, Clause 3

“The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative; and until such enumeration shall be made, the State of

                    New Hampshire shall be entitled to choose three,

                    Massachusetts eight,

                     Rhode Island and Providence Plantations one,

                     Connecticut five,

                     New York six,

                     New Jersey four,

                     Pennsylvania eight,

                     Delaware one,

                    Maryland six,

                    Virginia ten,

                     North Carolina five,

                     South Carolina five and

                    Georgia three.”

Comment:  Remembering back to Article 1, Section 2, Clause 1, the Framers wanted the people to be represented in the House of Representatives (cf. the States were represented by the Senate). To that end, the Framers spent many hours discussing the structure of representation. Here, this provision deals with the number of Representatives to be elected from each state.  Madison wanted the initial number to be 130; however, the majority of delegations decided that 65 Representatives would be a sufficient starting point. The Framers drafted this provision with some flexibility, which allowed for increased representation as the population grew; but, the provision did not allow for more than 1 Representative for every 30,000 persons. The Anti-Federalist were very concerned about the small number of Representatives. Madison answered their objection by explaining that the number of Congressmen would increase as the population increase and that there would be sufficient amount of checks and balances against corruption within the Constitution. Madison, however, argued against any “built-in” increase to the numbers of Representatives. In the end, in 1929 Congress decided to cap the number of Representatives at 435. Since then Congress has applied five different methods of apportioning Representatives among the states.  The present “Hill Method” (a complex formula), which determines when a state may gain or lose a seat, has been used since 1940. See Federalist Paper 10 and 55.

Primary Source. The Heritage Guide to the Constitution.

Enumeration Clause - Article 1, Section 2, Clause 3

"The actual Enumeration shall be made within three Years after the first Meeting of the Congress ofthe United States, and within every subsequent Term often Years, in such Manner as they shall by law direct."

Comment: The Constitution requires that a census be taken every ten years for the purpose of apportioning the House of Representatives. The main issue is whether this provision requires an actual count of every individual or whether an estimate may be used. Those who have concluded that an "estimate" may be used argue that "actual Enumeration" means ''the most accurate possible calculation"; and when further read in conjunction with "in such manner as they shall by Law direct," they believe the Framers intended for Congress to have complete discretion over the method to use to obtain the most accurate count possible. On the other hand, those who argue that "actual Enumeration" means an actual counting of individuals argue that the words mean to count "singly," "separately," "particularly." In debates between the Colonies and England over population figures, the parties would ask that an enumeration - or actual count - be taken, not an estimate. In The Federalist No. 36, Hamilton, discussing taxation issues, stated that "an actual census or enumeration of the people must furnish the rule, a circumstance which effectively shuts the door to partiality or oppression." Also, the Census Act of 1790 (the first census), required an actual counting. However, in Utah v. Evans (2002), the Census Bureau, when it was unsure of the number of residents at an address, inferred population characteristics from its nearest similar neighbor; the Supreme Court ruled that advanced statistical methods were constitutional valid.

Primary Source. The Heritage Guide to the Constitution.

House of Representatives - Article 1, Section 2, Clause 3

"Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons."

Replaced by: Amendment 14. Section 2. "Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State..."


Comment: This provision is called the Three-fifths Clause; it is a rule for counting slaves. At the time many people believed that slaves were just property, not persons, and should not be counted. The North resisted counting slaves for many reasons (e.g., it might cause a reason to have more slaves). As a result, deadlock ensued.  In Federalist No. 54, Madison argued that "we must deny the fact, that slaves are considered merely as property, and in no other respect whatever as persons." He did write, however, that the issue of slaves was a "peculiar" one. In the end, he stated that slaves retain both qualities (personhood and property). In any event, a provision linking direct taxes and representation with apportionment provided a compromise. Slaves were counted as 3/5ths for representation, which did not benefit the South as much had each slave been counted as a whole person; however, the South benefited from the 3/5ths rule for direct tax apportionment, which reduced their total tax liability. The silver lining in this mess is that in the end the Constitution did (in some way) recognize slaves as persons, and not merely as property.


Primary Source. The Heritage Guide to the Constitution.
Federalist Paper No 54

House of Representatives - Article 1, Section 2, Clause 2

"No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen."

Comment: This section deals with the qualifications for becoming a member in the House of Representatives. To that end, the Framers determined that the following three qualifications would apply: (1) one must be at least 25 years old (allowing some life experience for a member), (2) one must be a United States citizen for 7 years (to prevent foreign influence), (3) one must be an inhabitant of the state where he is chosen. They rejected property, wealth, and indebtedness qualifications.

This clause was not litigated in court for almost 200 years until the House refused to seat Adam C. Powell because he had allegedly embezzled House funds and lied to the House. Powell sought a judicial declaration of the matter. In Powell v. McCormack, the Court held that although Article I Section 5 provided that "Each House shall be the Judge of the...Qualifications of its own Members," Article 1 Section 2 specifies exactly three qualifications -- age, citizenship, and residency -- and that implies that there can be no more qualifications added by Congress.

In a subsequent holding, the Court ruled in United States Term Limits v. Thornton that the state may not impose its own qualifications. Justice Stevens, writing for the majority, argued that the States can not impose additional qualifications because the Constitution was a creature of the People, and not of the States; and that the States did not retain any power under the 10th Amendment.


 Primary Source. The Heritage Guide to the Constitution.

House of Representatives - Article I, Section 2, Clause 1

"The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualification requisite for Electors of the most numerous Branch of the State Legislature."

Comment: The framers wanted the people to be represented in the House of Representatives (vs. the Senate which represented the States), and they wanted a direct link between the People and the government. As a result, every two Years the People were to choose the Members, not the State legislatures. Madison argues in The Federalist No. 52 that "it is essential to liberty that the government in general should have a common interest with the people, so it is particularly essential that the branch of it under consideration should have an immediate dependence on, and an intimate sympathy with, the people. Frequent elections are unquestionably the only policy by which this dependence and sympathy can be effectually secured." Regarding the Electors - i.e., the People that have the right to vote the Members into the House of Representatives - the framers did not believe they could draft a single provision that would satisfy all States. Therefore, the framers were content with incorporating each State's own laws as to who had the right to vote, which was address within each State's constitution. 


In The Federalist No. 52. Madison writes "The definition of the right of suffrage is very justly regarded as a fundamental article of republican government. It was incumbent on the convention, therefore, to define and establish this right in the Constitution....The provision made by the convention appears, therefore, to be the best that lay within their option. It must be satisfactory to every State, because it is conformable to the standard already established, or which may be established, by the State itself. It will be safe to the United States, because, being fixed by the State constitutions, it is not alterable by the State governments, and it cannot be feared that the people of the States will alter this part of their constitutions in such a manner as to abridge the rights secured to them by the federal Constitution." 


Primary Sources - The Heritage Guide to the Constitution; The Federalist Paper No 52.


Federalist Paper No 52

Legislative Vesting Clause - Article I, Section 1

"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."

Comment: The framers did not want power combined in any one governmental department - the framers instead wanted Separation of Powers. As a result, Articles I, II, III of the Constitution vests the legislative, executive, and judicial power – each in a separate department of the federal government.  Moreover, the Constitution’s scheme is one of enumerated powers. To that end, the only law making power permitted  of Congress are those “herein granted” by the Constitution. Remember that the powers assigned to each branch were to remain within that branch (called the Nondelegation Doctrine), which is central to separation and accountability. As a result, the Constitution states that “All legislative Powers...shall be vested in a Congress,” not the executive or judicial branches. However, the Supreme Court has failed to prevent the delegation of legislative powers to the executive branch (through its agencies that adopt and enforce regulations); and as a result, the separation and accountability as originally designed under the Constitution has been greatly compromised. 

Primary Source - The Heritage Guide to the Constitution.

Preamble to the Constitution of the United States

"We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, 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."

Comment:  The Preamble to the Constitution was written by Gov. Morris. It is important to note that the Preamble does not grant or limit power. The words "a more perfect Union” simply means a better and stronger one than had previously existed under the Articles of Confederation. In order to “establish justice,” the framers believed that it was important to establish an independent Supreme Court, a federal judiciary superior to the states, and prohibit certain state practices. The founders ended up giving Congress ultimate control over the militias and guaranteed to each state a republic form of government and protection against violence, which was to help “insure domestic Tranquility” and protect against rebellions and insurrections. The founders also expected that other wars would occur, so the Constitution needed to “Provide for the common defense” of the United States. At the time of our founding fathers, “Welfare” meant: well-doing or well-being in any respect; the enjoyment of health and the common blessings of life; exemption from any evil or calamity; prosperity; happiness. And by definition “general” means all, entire, or total, not just a few or a part of the people. As a result, “promote the general Welfare” is actually a limitation of power, more so than a grant of power, because the powers granted by the Constitution were meant to promote the happiness and well-being of all the peoples of the United States, not just a few. Life, liberty, and property do not exist because men have made laws. On the contrary, it is the fact that life, liberty, and property existed beforehand that caused men to make laws in the first place. Liberty is defined as: the state of a free person; exemption from subjection to the will of another claiming ownership of the person or services; freedom; -- opposed to slavery, serfdom, bondage, or subjection. To that end, the Constitution makes possible the establishment of a government of laws to secure the “Blessing of Liberty.”


Primary Source - The Heritage Guide to the Constitution.

The Law by Frederic Bastiat

Frederic Bastiat- The Law (1848)


THE LAW by Frederic Bastiat  (a short bullet point outline) 

Life is a Gift from God

• Life, faculties, production = individuality, liberty, property = man.

• Life, liberty, and property do not exist because men have made laws. On the contrary, it was the fact that life, liberty, and property existed beforehand that caused men to make laws in the first place.

What Is Law?

•  The Collective Group. The purpose of the collective group’s common force is to do only what the individual forces have a natural and lawful right to do: to protect persons, liberties, and properties; to maintain the right of each, and to cause justice to reign over us all.

The Complete Perversion of the Law

•  The Law in France (and now American) Perverted. The law has placed the collective force at the disposal of the unscrupulous who wish, without risk, to exploit the person, liberty, and property of others. It has converted plunder into a right, in order to protect plunder. And it has converted lawful defense into a crime, in order to punish lawful defense....The law has been perverted by the influence of two entirely different causes: stupid greed and false philanthropy.

A Fatal Tendency of Mankind

• Mankind has the tendency to live and prosper at the expense of others.
• The very nature of man impels him to satisfy his desires with the least possible pain.

Property and Plunder

•  Property: Man living and satisfy his wants only by ceaseless labor; and by the ceaseless application of his faculties to natural resources.

•  Plunder: Man living and satisfy his wants by seizing and consuming the products of the labor of others.

•  Natural bent toward plunder to avoid pain. Because man’s fatal tendency is naturally inclined to avoid pain, and since labor is pain in itself -- men will resort to plunder whenever plunder is easier than work.

•  When does plunder stop? It stops when it becomes more painful and more dangerous than labor.

•  What the purpose of the Law should be – stop the tendency to plunder instead of to work. All the measures of the law should protect property and punish plunder.

•  Law becomes perverted and used as a weapon because of man’s tendency. The law becomes perverted by man’s fatal tendency to satisfy his wants with the least possible effort, explains the almost universal perversion of the law, and end up becoming a weapon of injustice.

Victims of Lawful Plunder

•  Plunder becomes a vicious circle. As soon as the plundered classes gain political power, they establish a system of reprisals against other classes. They do not abolish the prior legal plunder. Instead, they emulate their evil predecessors by participating in this legal plunder.

The Results of Legal Plunder

• The distinction between justice and injustice is erased.
• Many people believe that lawful = legitimate or just.
• So, in order to make plunder appear just, simply make it law.

 Two Kinds of Plunder

•  Illegal. That which the penal code defines, anticipates, and punishes (e.g., theft).
• Legal. That which the law defends and participates in it.

How to Identify Legal Plunder

• See if the law takes from some persons what belongs to them, and gives it to other persons to whom it does not belong. See if the law benefits one citizen at the expense of another by doing what the citizen himself cannot do without committing a crime.

“If so, then abolish this law without delay, for it is not only an evil itself, but also it is a fertile source for further evils because it invites reprisals. If such a law -- which may be an isolated case -- is not abolished immediately, it will spread, multiply, and develop into a system. The person who profits from this law will complain bitterly, defending his acquired rights. He will claim that the state is obligated to protect and encourage his particular industry; that this procedure enriches the state because the protected industry is thus able to spend more and to pay higher wages to the poor workingmen.”

Legal Plunder Has Many Names

• Tariffs, protection, benefits, subsidies, encouragements, progressive taxation, public schools, guaranteed jobs, guaranteed profits, minimum wages, a right to relief, a right to the tools of labor, free credit, and so on, and so on. All these plans as a whole --with their common aim of legal plunder -- constitute socialism.

The Seductive Lure of Socialism

• Here I encounter the most popular fallacy of our times. It is not considered sufficient that the law should be just; it must be philanthropic. Nor is it sufficient that the law should guarantee to every citizen the free and inoffensive use of his faculties for physical, intellectual, and moral self-improvement. Instead, it is demanded that the law should directly extend welfare, education, and morality throughout the nation. This is the seductive lure of socialism.

The Roots of Plunder

• Legal plunder has two roots: human greed (see above - man fatal tendency) and false philanthropy.

•  Legal plunder defined: When a portion of wealth is transferred from the person who owns it -- without his consent and without compensation, and whether by force or by fraud -- to anyone who does not own it, then I say that property is violated; that an act of plunder is committed.

Three Systems of Plunder

• Protectionism, socialism, and communism are basically the same plant in three different stages of its growth.

Law Is a Negative Concept

• The purpose of the law is to prevent injustice from reigning. But when the law, by means of its necessary agent, force and imposes upon men a regulation of labor, a method or a subject of education, a religious faith or creed -- then the law is no longer negative; it acts positively upon people. It substitutes the will of the legislator for their own wills; the initiative of the legislator for their own initiatives.

...The Law and Charity...The Law and Education...The Law and Morals...The Influence of Socialist Writers...The Socialists Wish to Play God...The Socialists Despise Mankind...A Defense of Paternal Government...The Idea of Passive Mankind...Socialists Ignore Reason and Facts...Socialists Want to Regiment People...A Famous Name and a Frightful Idea...Legislators Desire to Mold Mankind...A Temporary Dictatorship...Socialist Vision of Equality...The Error of the Socialist Writers...

What Is Liberty?

• Is it not the  union of all liberties – liberty of conscience, of education, of association, of the press, of travel, of labor, of trade, freedom of every person to make full use of his faculties, so long as he does not harm other persons, destruction of all despotism, restricting of the law only to its rational sphere of organizing the right of the individual to lawful self-defense; of punishing injustice

• Liberty is largely thwarted, because legislators desire to set themselves above mankind in order to arrange, organize, and regulate it according to their fancy.

...Philanthropic Tyranny...The Socialists Want Tyranny...Dictatorial Arrogance...The Indirect Approach to Despotism and Passive Mankind...The Vicious Circle of Socialism...

The Doctrine of Social Democracy

• The strange phenomenon of our times -- one that will probably astound our descendants -- is the doctrine based on this triple hypothesis:
• the total inertness of mankind,
• the omnipotence of the law, and
• the infallibility of the legislator.

...Socialists Fear All Liberties...The Socialists Reject Free Choice...

The Enormous Power of Government

• As long as these ideas prevail, it is clear that the responsibility of government is enormous. Good fortune and bad fortune, wealth and destitution, equality and inequality, virtue and vice -- all then depend upon political administration. It is burdened with everything, it undertakes everything, it does everything; therefore it is responsible for everything.

...Economics Proceeds Politics...Proper Legislative Functions...Law and Charity Are Not the Same...The Road to Communism...Law is Justice...Freedom, Dignity, and Progress...Do Not Claim to Know More than God...

Let Us Now Try Liberty

God has given to men all that is necessary for them to accomplish their destinies. He has provided a social form as well as a human form. And these social organs of persons are so constituted that they will develop themselves harmoniously in the clean air of liberty. Away, then, with quacks and organizers! Away with their rings, chains, hooks, and pincers! Away with their artificial systems! Away with the whims of governmental administrators, their socialized projects, their centralization, their tariffs, their government schools, their state religions, their free credit, their bank monopolies, their regulations, their restrictions, their equalization by taxation, and their pious moralizations!

And now that the legislators and do-gooders have so futilely inflicted so many systems upon society, may they finally end where they should have begun: May they reject all systems, and try liberty; for liberty is an acknowledgment of faith in God and His works.