In the Founder’s Corner
Scott N. Bradley
Part Six of a Seven Part Series
The first five parts of this seven part series touched upon the fact that the Founding Fathers of this nation recognized that our rights come from God, that it is the purpose of government to preserve those rights, that the founders considered the United States Constitution to be a written, binding contract so sacred that all who hold office are required to take an oath to uphold, that the scope of the national government was limited to the specific powers enumerated in the United States Constitution (and no more), that the Founding Fathers were careful to create checks and balances between all the different departments of the national government, and that it is essential that there be a clear separation of powers (divided powers) between the different elements of the government if liberty is to be maintained.
The seventh broad-brush point is that Delegated Powers may not be re-delegated once granted by the people through the constitutional process.
Constitutional protocol was well understood by those who founded this nation, and they knew that the authority which was assigned in the Constitution could not legally be delegated to another entity (foreign or domestic). The founders had diligently studied the works of John Locke. John Locke was emphatic in the matter of delegating constitutionally-mandated authority, saying:
“The legislative cannot transfer the power of making laws to any other hands, for it being but a delegated power from the people, they who have it cannot pass it over to others. The people alone can appoint the form of the commonwealth, which is by constituting the legislative, and appointing in whose hands that shall be. And when the people have said, ‘We will submit and be governed by laws made by such men, and in such forms,’ nobody else can say other men shall make laws for them; nor can they be bound by any laws but such as are enacted by those whom they have chosen and authorized to make laws for them.” (John Locke, Second Essay Concerning Civil Government)
Authority delegated by the people may not be re-delegated! The people must be consulted regarding any modification of delegated authority. Article V of the United States Constitution (the amendment process) follows this formula.
Remember, it is the right of the people to alter or abolish their governments (see Declaration of Independence), and until the constitution is altered by an authentic act of the people, it is sacredly obligatory upon all (especially those who hold office, and took an oath to uphold the Constitution) (see Washington’s Farewell Address).
In his writings, Thomas Jefferson notes his agreement that power, once delegated, cannot be re-delegated, saying:
“Our ancient laws expressly declare, that those who are but delegates themselves shall not delegate to others powers which require judgment and integrity in their exercise...[then he spoke of ] a transfer of their powers into other hands and other forms, without consulting the people,[Saying:] Necessities which dissolve a government, do not convey its authority to an oligarchy or a monarchy. They throw back, into the hands of the people, the powers they had delegated, and leave them as individuals to shift for themselves. A leader may offer, but not impose himself, nor be imposed on them.” (The Writings of Thomas Jefferson, Volume 2, p.173–p.174–p.175–p.176–p.177–p.178)
And St. George Tucker, who was previously mentioned in this series as one of the preeminent constitutional scholars of the American founding era, agreed with that position, stating:
“. . .a delegated authority cannot be transferred to another to exercise.” (Tucker, View of the Constitution of the United States Pg. 219 )
Unfortunately, modern Congresses have blatantly disregarded their responsibility in the matter of powers delegated solely to them, lacking the courage to fulfill their constitutionally-mandated duty in this regard. They have failed in the natural tendency to jealously guard their sphere of influence. Dereliction of duty is the kindest definition which could be attached to the posture of Congress in this regard. Over the past several decades, Congress has made flimsy excuses as they have mumbled nonsense about “delegating” their authority in various issues (such as matters pertaining to war or international trade) to the President, or to international bodies; or blaming their impotence upon “treaties” which are falsely understood to tie their hands and require (through entangling alliances) the United States to perform certain “obligations.”