This op-ed originally appeared in the Peoria Journal Star
by John Armor
July 6, 2008
When you buy a car, a blender, a hair dryer, whatever, you also get an owner’s manual. Many of us start using the device without reading about it and get ourselves into trouble.
Some Americans, for many reasons, have concluded that our government is failing or has already failed. But how many of us have read the nation’s owner’s manual recently, or even read it in our adult lives? The manual is, of course, our Constitution.
Who is the owner? It seems like an obvious question. But when you think about the answer, some critical conclusions follow.
We were all taught in third grade or thereabouts that “the people” are in charge in the United States. Later, we learned the phrase “popular sovereignty.” The Declaration of Independence declares that “governments … derive their just powers from the consent of the governed.” The manual agrees. In Article IV, Section 4, it says: “The United States shall guarantee to every State in the Union a Republican Form of Government …”
That has nothing to do with the Republican Party; political parties are not mentioned in the manual. Parties did not exist when the Constitution went into effect in 1789. And the Framers warned us against the dangers of political parties (then called “factions”) in Federalist Paper No. 10.
The meaning of “Republican Form of Government” goes back to Aristotle. It means government by representatives who were elected by the people.
Although most of us today use shorthand, calling the U.S. a democracy, the manual tells us that is wrong. Pure democracy means direct action by the people, and half of the states have this in their constitutions. But the American owner’s manual was written without direct democracy.
Choices of what has or hasn’t gone into the manual — from 1787 through 1992 — are all deliberate. We won’t get into details such as separation of powers, checks and balances, etc. It is enough, when considering current affairs, to know that legislative power belongs to Congress and the state legislatures, and that only Congress has the power to declare war.
Two current issues point out the dangers of operating, or trying to understand, American government without reading the manual. One is the 4-3 decision of the California Supreme Court allowing the establishment of homosexual marriage in that state. The other is the war against terror, in Iraq or elsewhere.
In the California decision, four members of the court took onto themselves the power of the legislature to create or change public policy. The three dissenting judges had the theory of government correct in saying that, whatever the merits of the intended policy, it is not the business of judges to create that policy.
Concerning the war on terror, various politicians and pundits have claimed that the Bush administration has no legitimate power to prosecute the war. Again, it is a matter of reading the manual. Article I, Section 8, Clause 10 gives to Congress alone the power “to declare war.” It takes a joint resolution, which the president does not sign and cannot veto.
After 9-11 the U.S. Congress did declare war through a joint resolution authorizing the use of military force (“across international boundaries”). That was folded into the Patriot Act. For those who think that isn’t a real declaration of war, the language is nearly identical to that used by Congress in 1805 in authorizing then-President Jefferson to attack, and defeat, the Barbary pirates.
Once Congress has declared war, then the president’s powers as commander in chief kick in. (See Article II, Section 2.) Those powers remain in effect until Congress ends the declaration, or ratifies a treaty of peace.
These current events are easily understood if we consult the nation’s owner’s manual. It is good to read the Constitution from time to time.
John Armor practiced law in for 33 years. He is now counsel to the American Civil Rights Union (www.theacru.org).