XXIV. The Duty and Limit of Power of the Executive Office

Catechism of the Constitution Book CoverThe Federalist Papers has posted a PDF copy of an Elementary Catechism on the Constitution from 1828 written by Arthur J. Stansbury. I’m publishing it on Mondays in a series of posts. Because the date of publication was 1828, some content has been changed by later Constitutional amendments. There are no sections in the book, so I’m dividing it into any natural breaks of topics and the posts will vary in length. Any emphases within the text are Stansbury’s.

The Framers of the Constitution, knowing the wont of all men to usurp power, intended there to be checks on the execution of duties of the presidency—indeed, of all three branches of our Constitutional Republic—when its bounds were overstepped. In a Senate Judiciary Committee hearing held on October 5, 2011, Supreme Court Justice Scalia gave some excellent commentary when he said American “should learn to love the gridlock”! The below excerpt is from the linked post at Hot Air. You’ll also find the C-Span video there. Here’s the Senate transcript. Justice Scalia’s remarks begin on page six of the transcript, which is page ten of the PDF document. He says some other things that are well worth reading.

I ask them, “Why do you think America is such a free country? What is it in our Constitution that makes us what we are?” And I guarantee you that the response I will get — and you will get this from almost any American *** the answer would be: freedom of speech; freedom of the press; no unreasonable searches and seizures; no quartering of troops in homes… those marvelous provisions of the Bill of Rights.

But then I tell them, “If you think a bill of rights is what sets us apart, you’re crazy.” Every banana republic in the world has a bill of rights. Every president for life has a bill of rights. The bill of rights of the former evil empire, the Union of Soviet Socialist Republics, was much better than ours. I mean it. Literally, it was much better. We guarantee freedom of speech and of the press. Big deal. They guaranteed freedom of speech, of the press, of street demonstrations and protests, and anyone who is caught trying to suppress criticism of the government will be called to account. Whoa, that is wonderful stuff!

Of course, it’s just words on paper, what our Framers would have called a “parchment guarantee.” And the reason is that the real constitution of the Soviet Union — you think of the word “constitution” — it doesn’t mean “bill” it means “structure”: [when] you say a person has a good constitution you mean a sound structure. The real constitution of the Soviet Union *** that constitution did not prevent the centralization of power in one person or in one party. And when that happens, the game is over, the Bill of Rights is just what our Framers would call a “parchment guarantee.”

So, the real key to the distinctiveness of America is the structure of our government. One part of it, of course, is the independence of the judiciary, but there’s a lot more. There are very few countries in the world, for example, that have a bicameral legislature. England has a House of Lords, for the time being, but the House of Lords has no substantial power; they can just make the [House of] Commons pass a bill a second time. France has a senate; it’s honorific. Italy has a senate; it’s honorific. Very few countries have two separate bodies in the legislature equally powerful. That’s a lot of trouble, as you gentlemen doubtless know, to get the same language through two different bodies elected in a different fashion.

Very few countries in the world have a separately elected chief executive. Sometimes, I go to Europe to talk about separation of powers, and when I get there I find that all I’m talking about is independence of the judiciary because the Europeans don’t even try to divide the two political powers, the two political branches, the legislature and the chief executive. In all of the parliamentary countries the chief executive is the creature of the legislature. There’s never any disagreement between them and the prime minister, as there is sometimes between you and the president. When there’s a disagreement, they just kick him out! They have a no confidence vote, a new election, and they get a prime minister who agrees with the legislature.

The Europeans look at this system and say “It passes one house, it doesn’t pass the other house, sometimes the other house is in the control of a different party. it passes both, and this president, who has a veto power, vetoes it,” and they look at this, and they say (adopting an accent) “Ach, it is gridlock.” I hear Americans saying this nowadays, and there’s a lot of it going around. They talk about a dysfunctional government because there’s disagreement… and the Framers would have said, “Yes! That’s exactly the way we set it up. We wanted this to be power contradicting power because the main ill besetting us — as Hamilton said in The Federalist when he talked about a separate Senate: “Yes, it seems inconvenient, inasmuch as the main ill that besets us is an excess of legislation, it won’t be so bad.” This is 1787; he didn’t know what an excess of legislation was.

Unless Americans can appreciate that and learn to love the separation of powers, which means learning to love the gridlock which the Framers believed would be the main protector of minorities, [we lose] the main protection. If a bill is about to pass that really comes down hard on some minority [and] they think it’s terribly unfair, it doesn’t take much to throw a monkey wrench into this complex system. Americans should appreciate that; they should learn to love the gridlock. It’s there so the legislation that does get out is good legislation.

Serious problems arise when executive orders, rules, and regulations are wrongly written and executed to the point that they become de facto laws, and Congress refuses to act as a check on this abuse of power.

XXIV. The Duty and Limit of Power of the Executive Office

Q. Who executes the laws which Congress have made, that is, who takes care that every body shall obey the laws?

A. The President of the United States.

Q. Can he make the law?

A. Not at all. These two powers, of making law, and executing law, are kept by the Constitution, entirely separate ; the power that makes the law cannot execute it, and the power that “executes the law cannot make it. (The one of these powers is called the Legislative, and the other is called the Executive power.

Q. Is there any advantage in this?

A. Certainly; it is the great safeguard of freedom; because, if the one makes oppressive laws, the other may refuse to execute them; or, if the one wishes to do tyrannical acts, the other may refuse to make a law for them.

In the heading under Charters of Freedom, you will find a copy of the Constitution as well as links to other pertinent primary documents and commentary on the Constitution, including essays at The Heritage Guide to The Constitution:

Elementary Catechism on the Constitution posts:

Elementary Catechism on the Constitution (Preface)
I. The Necessity of Government and Its Forms
II. The American Revolution
III. The Occasion and Purpose of the Constitution
IV. State and National Laws
V. The House of Representatives
VI. The Senate
VII. Impeachment
VIII. Impeachment of the President & The Rule of Law
IX. Meetings of Congress
X. Members of Congress
XI. The Making of Federal Laws
XII. Taxes, Duties, Imposts, and Excises
XIII. Finance and Commerce
XIV. Courts & International Offences
XV. Declaration of War
XVI. State Militia
XVII. Congressional Governance of Washington, D.C. & Military Facilities
XVIII. Congressional Authority On Enactment Of Laws
XIX. Slaves
XX. Habeas Corpus, Bill of Attainder & Ex Post Facto Law
XXI. Direct Tax & the Census, Seaports & Duties, Treasury & Appropriation
XXII. Titles of Nobility
XXIII. Powers Prohibited To The States
Book image from The Federalist Papers. Other reading formats of the Elementary Catechism on the Constitution can be found here.

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