We all intuitively understand – we need rules. And we must follow them.
The U.S. Constitution provides a framework, the rulebook, if you will, for the federal government; each clause, each principle, carefully crafted for a specific reason. The entire document aims to define, constrain and control federal power. When we begin to ignore and rewrite various checks and balances written into the Constitution by the framers, we tear at the very fabric of the Republic. And we run the risk of unleashing a torrent of power that will soon wash away the freedoms and liberties the founders cherished.
Thomas Jefferson said, “…in questions of power then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the constitution…”
A football game would degenerate into chaos without set rules and adherence to them. If referees arbitrarily awarded touchdowns, the game would cease to have any real meaning. Can you imagine the ridicule that would pour down on an NFL official claiming to have unlimited power to make up rules on the field, regardless of the rulebook?
Althusius wrote, “All power is limited by definite boundaries and laws. No power is absolute, indefinite, arbitrary and lawless. Every power is bound to laws, right and equity.”
Yet many Americans act as if the president, the Congress, or the Supreme Court possesses unlimited power. They may express frustration with unconstitutional overreach, but ultimately, they shrug and accept it. “The Supreme Court ruled, so that’s just how it is,” they argue. Pundits and average citizens alike react in horror at the mere suggestion that state governments should defy a court ruling, ignore a presidential executive order or nullify an unconstitutional act.
Most Americans, at least tacitly, accept the idea that the federal government wields unlimited, absolute, supreme power- a sort of national political football game not bound by any rules.
The founders never intended such a thing.
Delegation of Power
A referee’s authority to officiate an NFL football game flows from the league. When a candidate meets the criteria set by the NFL, league officials authorize him to don the striped shirt and referee games. He must call the contest according to the rules set by the NFL, rules enumerated in the official rulebook. He can’t just make up rules as he goes. And he can’t willy-nilly insert his own interpretation of the regulations. The referee must call the game according to set and established criteria. He enjoys a delegation of power from the league, but he must exercise it within its prescribed limits. No calling touchdowns because he decides it will make the game more exciting, or because he wants to inject his sense of fairness into the contest.
And it is self-evident that if the NFL hired me to referee football, it wouldn’t give me the authority to umpire a Major League Baseball game, referee an NHL hockey game or arrest a drunk driver. An NFL ref’s authority extends only to a limited arena – the NFL football field.
The NFL official operates within a delegation of power from the league. The referee, in essence, serves as an agent. The league acts as the sovereign. A sovereign can always revoke delegated power. The NFL can revoke the ref’s authority at any time. It can change the rulebook or demand the ref adhere to a given interpretation of the rule. It can even dissolve the league. The referee enjoys no such authority or prerogative. He merely wields the power given to him – he simply refs the game.
The NFL is boss.
In the same way, a government serves as an agent of the people. The people delegate government specific, defined powers. And as we’ve already discussed, the people remain sovereign. The people can revoke a delegation of power at any time. They can even dissolve the government and start over, as the American colonists did in 1776 when they severed political ties with England.
“That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.” – Declaration of Independence
You and I are the bosses.
Legitimate government must follow the rules – the Constitution. And any power exercised by the federal government beyond those delegated is, by definition, void and of no effect.
Historians generally consider Alexander Hamilton the framer most sympathetic to a strong, national government. Yet even he emphatically argued that the Constitution strictly limited the power of the general government. In Federalist 78, Hamilton wrote:
“There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.”
A constitution is nothing but a legal document whereby a sovereign delegates certain powers to a government. Have you ever stopped to think about why the opening words of the U.S. Constitution, We the People appear in large, ornate letters? When an 18th century British king issued a grant, his name always appeared at the top in the same fashion. The framers merely replaced the king’s name with “We the People,” signifying the sovereign authority from which the delegation of power flowed.
You and I.