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Week of: March 11, 2001

Support and Defend the Constitution

by F.R. Duplantier

"The electoral controversy in Florida has brought into focus some fundamental issues facing our constitutional republic."

"Will we remain a federal constitutional republic with a government of limited powers or continue our drift toward a centralized, national plebiscitary democracy with an essentially unconstrained national government?" ask Edward Crane and David Boaz of the Cato Institute. "The Electoral College reflects several compromises made by the members of the Constitutional Convention in 1787. It is by no means a perfect electoral system," they concede, "but it has several essential strengths. It reminds us that the United States is a federal republic, not merely a unitary nation-state. It encourages political parties and candidates to pay attention to all parts of the country, not just a few population centers. It reflects our intention to be a constitutional republic under representative government, not a direct democracy."

In a recent issue of Policy Report, a bimonthly publication of the Cato Institute, Crane and Boaz argue that "the case for the Electoral College is a central part of the case for a constitutional republic. Those who appreciate that the Constitution establishes a government of delegated, enumerated, and thus limited powers; those who believe that most political decisions should be made in the states and communities; those who believe in liberty and federalism . . . understand that the Electoral College is a key element of our federalist system."

Crane and Boaz emphasize that "every person elected or appointed to office takes an oath to 'support and defend the Constitution of the United States.'" They argue that Presidents who exceed their constitutional authority "should be held accountable for those abuses of power," but insist that "Congress should be primarily responsible for holding them accountable."

Crane and Boaz recognize that "no more momentous decision can be made [by a government] than the decision to go to war. For that reason, in a democratic republic it is essential that that decision be made by the most broadly representative body: the legislature." They urge Congress to "reclaim its power under the Constitution to make such momentous decisions."

Presidential lawmaking via executive orders is "a clear usurpation of both the legislative powers granted to Congress and the powers reserved to the states," Crane and Boaz contend. "The President's principal duty under the Constitution is to 'take care that the laws be faithfully executed' -- not to make law, as Presidents increasingly have done." They call on Congress to "assert its authority" and stop any President who seeks to impose his own agenda by executive order.

Crane and Boaz criticize Congress' "habit of passing broad laws and leaving the details up to administrative agencies. Congress likes to proclaim noble goals, promise good results, and leave it to unelected bureaucrats to deal with the inevitable tradeoffs and costs of such goals," they complain, but "Congress cannot constitutionally delegate its lawmaking authority to any other body, nor should it want to do so."

Crane and Boaz exhort Congress to consider "the constitutionality of every proposed law." If there is no constitutional justification for it, they advise, "members of Congress should not vote for the bill. And then, if the President or federal regulatory officials should attempt to legislate on the matter extraconstitutionally, Congress should strike down the executive order or regulation."


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