Blog/Rule of Law
Posted May 16, 2019 by Martin Armstrong
Originally, the Founding Fathers envisioned a government that was “We The People.” The structural design was based largely on the writings of Montesque and embodied the separation of powers — Executive (bureaucracy), Congress (the people), and the Judiciary (the arbitrator). Benjamin Franklin (1706-1790), at the age of 81, gave his assessment of the direction of the country in his final speech before the Constitutional Convention:
“…when you assemble a number of men to have the advantage of their joint wisdom, you inevitably assemble with those men, all their prejudices, their passions, their errors of opinion, their local interests, and their selfish views.”
He understood it would be impossible to expect a “perfect production” from such a gathering for he understood the cycles of history. After all, he was friends with Edward Gibbon who wrote the “Decline and Fall of the Roman Empire” and reviewed the text before it was published. Franklin believed that the Constitution they had just drafted “with all its faults” was still better than any alternative that was likely to emerge.
There is a serious fault in the Constitution that the Founding Fathers neglected to take into account. I believe their judgment was colored by the propaganda which survived from Cicero who painted Julius Caesar as a dictator when in fact it was his own political party, known as the Optimates, who were a conservative political faction in the late Roman Republic. The Optimates were the corrupt senators who had to flee Rome when Caesar approached because the people cheered Caesar against the corruption of the Senate. Due to the failure to truly uncover other contemporary writers when Gibbon was doing his research, the design of the United States was fatally constructed upon these misconceptions and we are now paying the price for those mistakes.
The Constitution was not supposed to be a self-actuating or a self-correcting document. Unfortunately, allowing it to be amended has destroyed its very intent. Once they installed the income tax on a progressive basis, they conveniently interpreted that you can discriminate against class and occupation but not anything else from religion to race and gender. We have proven that there is no EQUAL PROTECTION OF THE LAW and that the observation of Thrasymachus (c 459-400 BC) is the correct one of history — all governments interpret laws only in their own self-interest.
Even with constant attention and devotion of all citizens, our Constitution has utterly failed to protect our liberty and by far it never provides equal justice for all. There is a story, often told, that upon exiting the Constitutional Convention Benjamin Franklin was approached by a group of citizens asking what sort of government the delegates had created. His answer was: “A republic if you can keep it.” The brevity of that response was indeed a reflection of his understanding of the cycle of history. While we pretend to call ourselves a Democracy, we are by no means such an institution. We are exactly what Franklin replied: a REPUBLIC.
While it is a theory that democratic republics are founded upon the consent of the people, any review of history reveals that they are founded upon pretenses and have never been able to constrain those in power. Once they get a taste of that power, they abuse it. This is what drives the cycle of history which shows that society is born, matures, corrupts, and collapses by normally suicide taking shape as a revolution.
James Wilson (1742–1798) was one of the Founding Fathers of the United States who signed the Declaration of Independence as well as the United States Constitution. Wilson was elected twice to the Continental Congress representing Pennsylvania. He had a good legal mind and was a major contributor in drafting the United States Constitution. Because of his brilliant legal mind, he was also appointed as one of the six original justices to the Supreme Court of the United States.
Wilson believed that “the House of Representatives [shall] form the grand inquest of the state. They shall diligently inquire into grievances.” Indeed, the original idea was that Congress was elected by the people and was their representatives in a Republic. The Senate did not stand for election but were appointed to represent the state in which they served. The idea that Congress would be the overseer was essential. They were to have the power to investigate the executive branch. Under the Roman system, there was a Tribune who has the absolute power to investigate and criminally charge anyone in government. That became the watered-down version of the Office of Inspector General, which will investigate but is under the Justice Department in the Executive Branch which has no power to initiate its own actions.
However, the Constitution does not actually authorize such a power. It states:
SECTION 1. All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.
There is actually no provision of the Constitution which expressly authorizes either house of Congress to make investigations and exact testimony. Nevertheless, such a power had been frequently exercised by the British Parliament and by the Assemblies of the American Colonies prior to the adoption of the Constitution. It was asserted by the House of Representatives as early as 1792 when it appointed a committee to investigate the defeat of General St. Clair and his army by the Indians in the Northwest and empowered it to “call for such persons, papers, and records, as may be necessary to assist their inquiries.” (3 Annals Of Congress 490–494 (1792); 3 A. Hinds’ Precedents Of The House Of Representatives 1725 (1907)).
However, the Supreme Court has long since accorded its agreement with Congress that the investigatory power is so essential to the legislative function as to be “implied” as inherent even though it was never expressly granted. In 1927, the Supreme Court wrote in McGrain v. Daugherty, 273 U.S. 135, 174–175 (1927):
“We are of the opinion,” wrote Justice Van Devanter for a unanimous Court, “that the power of inquiry—with process to enforce it—is an essential and appropriate auxiliary to the legislative function. . . . A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change; and where the legislative body does not itself possess the requisite information—which not infrequently is true—recourse must be had to others who possess it. Experience has taught that mere requests for such information often are unavailing, and also that information which is volunteered is not always accurate or complete; so some means of compulsion are essential to obtain what is needed. All this was true before and when the Constitution was framed and adopted. In that period the power of inquiry—with enforcing process—was regarded and employed as a necessary and appropriate attribute of the power to legislate—indeed, was treated as inhering in it. Thus there is ample warrant for thinking, as we do, that the constitutional provisions which commit the legislative function to the two houses are intended to include this attribute to the end that the function may be effectively exercised.”
Chief Justice Warren, in a 1957 opinion, took a hostile approach to the exercise of the investigatory power by Congress. He wrote:
“The power of the Congress to conduct investigations is inherent in the legislative process. That power is broad. It encompasses inquiries concerning the administration of existing laws as well as proposed or possibly needed statutes. It includes surveys of defects in our social, economic or political system for the purpose of enabling the Congress to remedy them. It comprehends probes into departments of the Federal Government to expose corruption, inefficiency or waste.” (Watkins v. United States, 354 U.S. 178, 187 (1957).)
Justice Harlan addressed the matter in 1959. “The power of inquiry has been employed by Congress throughout our history, over the whole range of the national interests concerning which Congress might legislate or decide upon due investigation not to legislate; it has similarly been utilized in determining what to appropriate from the national purse, or whether to appropriate. The scope of the power of inquiry, in short, is as penetrating and far-reaching as the potential power to enact and appropriate under the Constitution.” (Barenblatt v. United States, 360 U.S. 109, 111 (1959). See also Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 503–07 (1975).)
Congress has overstepped its bounds in using its investigative powers against the opposition party for purely political purposes. Partisanship has now not just influenced how those powers are used, it has become the dominant justification. A Democratic Congress investigated Richard Nixon. During the Clinton administration, the Republican-led House issued more than 1,000 subpoenas and held hearings on the Clintons. Now the Congress has gone completely far beyond its powers historically demanding Trump’s tax returns. This has nothing to do with his current administration nor does it have any relevance to legislation. Donald Trump has rightfully declared, “We’re fighting all the subpoenas,” and will sue to block them and instruct officials to ignore them. In this regard, the powers of Congress have been seriously abused over the decades. Partisanship renders oversight illegitimate. To ignore the partisanship is very dangerous because it is taking government in the direction of dysfunction.
Broad as the power of inquiry is, it is not unlimited. In Kilbourn v. Thompson, 103 U.S. 168 (1880), the Supreme Court dealt with the question of whether or not the House of Representatives could compel testimony. The Court found that the House did not have the power to punish for contempt. The power of investigation may properly be employed only “in aid of the legislative function.” Clearly, the Kilbourn decision would mean that the investigation launched against Trump has exceeded the outermost boundaries of the power of Congress. Those powers are confined by the outermost boundaries of the power to legislate. In principle, the Court is clear on the limitations, “that neither house of Congress possesses a ‘general power of making inquiry into the private affairs of the citizen’; that the power actually possessed is limited to inquiries relating to matters of which the particular house ‘has jurisdiction’ and in respect of which it rightfully may take other action; that if the inquiry relates to ‘a matter wherein relief or redress could be had only by a judicial proceeding’ it is not within the range of this power, but must be left to the courts, conformably to the constitutional separation of governmental powers; and that for the purpose of determining the essential character of the inquiry recourse must be had to the resolution or order under which it is made.”
In practice, much of the litigated dispute has been about the reach of the power to inquire into the activities of private citizens; an inquiry into the administration of laws and departmental corruption, while of substantial political consequence, has given rise to fewer judicial precedents. It would seem that the only way to eliminate this type of partisanship investigations would be to empower the Office of Inspector General to act independently of the Justice Department and that its powers should be that of the Roman Tribune. That means it should have the power to also investigate those in Congress.
Under the administration of Andrew Jackson, this power to investigate was coming into focus. During the controversy over the renewal of the charter of the Bank of the United States, John Quincy Adams contended that an unlimited inquiry into the operations of the bank would be beyond the power of the House (8 Cong. Deb. 2160 (1832)). Then in 1836, the legislative power of investigation was challenged by the Jackson. A committee appointed by the House of Representatives “with power to send for persons and papers, and with instructions to inquire into the condition of the various executive departments, the ability and integrity with which they have been conducted, . . .” (13 Cong. Deb. 1057–1067 (1836)) called upon the President and the heads of departments for lists of persons appointed without the consent of the Senate and the amounts paid to them. Jackson refused this attempt “to invade the just rights of the Executive Departments,” and the majority of the committee acquiesced in 1837 (H. R. Rep. No. 194, 24th Congress, 2d sess., 1, 12, 31 (1837)).
Then leading into the Civil War, Congress unleashed investigations and brought contempt proceedings against a witness who refused to testify in an investigation of John Brown’s raid upon the arsenal at Harper’s Ferry. There was a debate in the Senate of the basis of this power which was protracted and cut sharply across sectional and party lines. The Senate voted overwhelmingly to imprison the contumacious witness (Cong. Globe, 36th Congress, 1st sess., 1100–1109 (1860)). It was this abuse of power which was then constrained by the Supreme Court in a narrow view of the power in Kilbourn v. Thompson.
Therefore, my legal opinion is that Congress is abusing its power and I agree with the Kilbourn decision that they are not free to investigate members of the opposing party for political gains. Empower the Office of Inspector General to do all investigations – PERIOD!!!!!!
Tags: Benjamin Franklin, Kilbourn v Thompson, Republic vs. Democracy, U.S. Constitution