February 20, 2006
Diaz Hendropriyono
Washington, DC
The U.S. Constitution was written not only to create and distribute federal power into three separate branches, but also to ensure that it was exercised legitimately. And most importantly, it was to be considered as the “Supreme Law of the Land.” The Constitution was meant to be a broad guideline for the republic that, like most rules and regulations, it does not encompass specificity. Regrettably, I argue that for this very reason the Constitution, to a certain extent, fails to serve its purpose.
The Constitution could have been intentionally written broadly, avoiding details. William J. Brennan Jr. asserted that the Framers had anticipated that a changing society would need an elastic and flexible document that could conform to the ages. For example, the word “slavery” was not clearly mentioned in the Constitution although three provisions refer to it: the three-fifths clause in Article 1 Section 2, the importation clause in Article 1 Section 9, and the fugitive clause in Article IV Section 2. It was believed that such a word was impossible to be stated clearly because it was an embarrassment for the American people to allow slavery. In fact, the Framers themselves hoped that this practice would be abolished in the future. And allowing slavery at that time was only a way to secure the Union using general words that would neither sanction slavery nor stain the Constitution.
More elaborately, Frederick Douglass claimed that slavery was treated as a “scaffolding” to build the Union. And once the “building” is built, it was to be removed. It seems that the vagueness of the Constitution was a deliberate attempt by the Framers, realizing that they could not agree on everything, and thus decided that it was wiser to leave interpretation to future generations.
Unfortunately, as a result of these ambiguities in the Constitution, Americans have unnecessarily quarreled over the content and the meaning of the text. For example, the issue of separation of power that the Constitution establishes has created confusion. Each of the three branches is supposed to perform a different and independent task. However, although Article I Section 1 states “All legislative Powers herein granted shall be vested in a Congress,” the other two branches could actually become legislative in practice as well.
While the Congress is still entrusted to make laws, the president, having the attention of the public, retains the greater power to propose legislation and veto what the Congress proposes. And even though the Supreme Court is tasked to interpret the law, some of its decisions—such as the 2000 presidential election, criminal procedure and abortion—have turned it into a law-making body. Therefore, a gray area in the Constitution has created a loophole that resulted in an interdependent relationship among the three branches rather than a pure system of separation of powers.
Realizing that these branches share power does not mean that each has an equal power. In fact, each dangerously tries to increase its power over the others. For example, the Supreme Court declared in Marbury v. Madison (1803) that it could nullify an act of Congress if it found the act to be in conflict with the Constitution. The practice of judicial review has altered the balance of power among the three branches. It came as a surprise knowing that the Supreme Court in its early years was not powerful and did not have much “energy, weight, and dignity,” as John Jay said when he was leaving his Chief Justice post to become the Governor of New York in 1795.
The ambiguity of the Constitutional role of the executive power, whether a president is a clerk or a leader, has had a profound impact on the placement of public administration—which actually has no place in the Constitution (well, some say it’s implied). Supporters of a strong legislative branch maintain that the president is the former since he is to execute whatever the Congress legislates. Yet, others argue otherwise by comparing two Articles in the Constitution.
Article II Section 1 states “The executive power shall be vested in a President” while Article I Section 1 states “All legislative powers herein granted shall be vested in a Congress.” The omission of the word herein granted in Article II suggests that the president may legislate whatever the Congress does not legislate. That is, according to some, Congress only possesses legislative powers that are granted by the Constitution. Obviously, this uncertain condition forces public administrators to choose their constitutional master, whether the Congress or the president.
Because of the confusion of who has the power to do what, public administrators are forced to use their own “instinct” to determine an acceptable behavior, which I think is difficult to establish. For example, in 1832 President Jackson worked to dismantle the Bank of the United States and asked the Treasury Secretary William J. Duane to divert the U.S. government deposits away from the Bank. The Secretary refused and thus was replaced by the more cooperative Roger Taney. Duane’s refusal to comply with such a directive provides an ethical argument. Those who believe that the President has the executive power and “shall take Care that the Laws be faithfully executed” think it ethically unacceptable to have refused such a presidential order. Yet, others emphasizing the impeachment clause from Article I Section 2 think otherwise. The President and his “men,” whom he shall commission, are actually the Congress’s “men.”
Therefore, although constitutional ambiguities have brought positive effects—such as securing the Union—its ambiguities of the separation of power, the executive and the legislative power, and even the place of the public administration in the government structure, has also created a havoc. Unless this “Supreme Law of the Land” is written in a much more specific manner, this balance of power would undoubtly prevail. I am not asking for intricate details to be added to the U.S. Constitution. But, at least some part of it needs to be updated to avoid unnecessary complication, confusion, and quarrel, so that it provides a clearer balance of power within the three branches without giving the chance for one branch to be harmfully more powerful than the others.
