Many people characterize the U.S. Constitution as vague or filled with broad generalities. Others identify it as the source of our basic rights.
It’s neither of those things.
Key to understanding the Constitution is to know that it’s a very well-drafted, fairly precise document granting fiduciary powers, and that it follows 18th-century customs for such documents. It was designed to put into practice the broad principles of the Declaration of Independence, to the extent politically feasible.
Much of the Constitution is made up of lists of powers granted by the people to persons and groups. Other components are analogous to terms you might find in complex 18th-century documents creating fiduciary relationships—statutes conferring authority, instruments creating trusts or agency relationships, and charters erecting corporations.
The first thing most people notice when they pick up the Constitution is its majestic preamble. It explains why “We the People” do “ordain and establish this Constitution.” Preambles were common in 18th-century legal instruments. Preambles did’t have the force of law. They were for background information only. Preambles remain common in legal documents today. We often call them “whereas clauses.”
Any power-granting document must explain who is receiving authority and the conditions under which they may exercise it. Hence, the Constitution outlines the structure of the new federal government: Congress, the president, and the courts.
A power-granting document also limits authority.
Limits come in three forms: First, those receiving power receive only the power the document lists. If I authorize my broker to sell stock, it follows that I’m not authorizing him or her to sell my house. Second, a document may flatly prohibit certain actions, and put conditions on others. The same agreement that authorizes my stockbroker to sell stock may prohibit him or her from selling below a certain price. Third, the law of fiduciary (trust) relationships imposes additional restrictions on anyone exercising power on behalf of another.
The Constitution contains many specific limits. For example, it bans ex post facto laws and taxes on exports, even when they might seem warranted. The Constitution bans restrictions on free speech, freedom of religion, and the right to keep and bear arms. Some of these limits are designed to ensure good and responsive government. Others are included to further justice; still others to protect natural rights.
Power-granting documents sometimes alter pre-existing arrangements to make the overall system work better. If I give my broker authority to sell stock on certain terms, I might have to revoke authority I have given to others. The Constitution similarly adjusts some preexisting relationships. It requires each state to have a “republican Form of Government.” It requires states to respect the official proceedings of other states. It requires them to honor certain “Privileges and Immunities” of Americans who live in other states. And so forth.
The core of the document consists of the Constitution’s listed (enumerated) powers. Some people with superficial knowledge of the Constitution claim all the enumerated powers are in the congressional list in Article 1, Section 8. This is wrong. Other congressional powers are scattered throughout the document. In addition, Article 2 lists enumerated powers for the president, Article 3 for the courts, and Article 5 those exercised in the amendment process.
The Constitution doesn’t always use obvious language to confer authority. Some grants are latent in other kinds of phrasing. When the Constitution obligates the United States to pay preexisting debts or guarantee to each state a republican form of government, it thereby grants authority to the U.S. government to do those things. When the Constitution obligates the president to enforce the laws, it thereby gives him the ability to do so.
The powers granted by the Constitution are extensive. But as stated earlier, they are also limited. If the Constitution doesn’t grant an enumerated power to an officer or agency, then the officer or agency doesn’t have it. I have found that many people find this difficult to grasp. But the fact is that the Constitution doesn’t authorize the federal government to be a national health agency, a school board, or a police department.
Here’s an important, but widely overlooked, feature: The document doesn’t grant power only to federal officials. It also confers power on persons and entities who aren’t part of the U.S. government at all.
Thus, the Constitution entrusts states with regulating congressional elections and choosing presidential electors. It empowers those electors to select the president and vice president. It authorizes governors to call elections to fill congressional vacancies and, in some cases, to fill those vacancies temporarily. It prescribes roles in the amendment process for state legislatures, state conventions, and a federal proposing convention. All of these entities and persons receive authority in such matters from the Constitution.
Moreover, when individuals serve on federal juries or vote in federal elections, they aren’t exercising natural rights. They are executing powers given to them by the Constitution. Of course, those powers often are crucial for protecting natural rights.
Knowing that the Constitution is basically an 18th-century document granting fiduciary powers doesn’t minimize its significance or the inspiration of those who wrote it. But it’s a very good first step toward a real understanding of the document.
