2010/01/17

Napolitano not quite accurate

The videos of Andrew Napolitano contain several errors of constitutional construction and of history. Here are a few that stood out:

1. It is inaccurate to characterize Alexander Hamilton and John Adams as not believing that rights recognized in the Constitution derived from nature or God. They may have disagreed with Jefferson, Madison and others of their school of thought concerning how to interpret the powers delegated to Congress, but not on the fundamentals of natural or social rights.

2. Contrary to Napolitano, the powers delegated to Congress are not limited to the 17 in Article I Section 8. There are other powers scattered throughout the Constitution.

3. It is not accurate to say that the President must enforce all the laws and must spend all the money Congress votes. First, it is his duty not to do so for statutes or appropriations that are unconstitutional. Second, he has some discretion concerning enforcement, because it is generally not possible to strictly enforce everything, and it is generally necessary to prioritize enforcement actions.

4. It is also not quite accurate to say that any federal court may order the President to do something. As it was pointed out in Marbury v. Madison, the principle of the separation of powers does not permit federal courts to direct the actions of constitutionally elected officials, in that they have no power to enforce such orders. They do, however, have authority to issue enforceable orders to employees and contractors under the supervision of those constitutional officers. Their power over the president is limited to power over those who work under his supervision.

5. Napolitano incorrectly accepts that the "cases and controversies" clause is a limitation of the jurisdiction of the courts to cases in which a party has particular injury to himself. That is the doctrine of "standing" first put forth in Frothingham v. Mellon, 262 U.S. 447 (1923), which removed a key remedy, presumed by the Framers when they wrote the Constitution, by a judiciary trying to evade its duty to decide constitutional issues. This is discussed in The Metaphor of Standing and the Problem of Self-Governance, by Steven L. Winter, 40 Stan. L. Rev. 1371, July, 1988.

6. Napolitano is incorrect that the federal government was created by the states. It was created by the people voting by state. They were not representing the state as a state when they did so, and were also virtually representing the people of the non-state territories. It is a subtle but important distinction that needs to be understood and maintained.

Although I generally commend Napolitano for speaking out on constitutional violations, his understanding of constitutional principles is somewhat distorted by his training as a lawyer. He has written some good books which bring out some of the problems, but which are sadly lacking in the kinds of structural and procedural reforms that are needed to solve them. Most of his suggestions are for officials to behave better. That won't work. Those officials misbehave because of the incentive system within which they operate, and to change the incentive system we have to make structural and procedural changes.

1 comment:

Tenth Amendment Center said...

What I liked most was point #6, which I debate with people about almost constantly at tenthamendmentcenter.com. Even after pointing out that James Madison, in his Report of 1800, explained the difference between "states" as the people of the several states and "states" as state governments - average people have heard this created by the states mantra so many times that they can't seem to accept the truth of it all.

Jon, great entry here - thanks for writing this. Didn't know you were doing so many regular updates.

I'd love it if you'd cross-post some of your entries over at TAC. Drop me a line if you'd like to chat about doing that! info@tenthamendmentcenter.com

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