San José State University
Thayer Watkins
Silicon Valley
& Tornado Alley

The Constitutional Structure of the Government
of the United States and its Historic Abrogation

At the ending of the War of Independence the thirteen former British colonies had the status of independent countries. They first joined together under the Articles of Confederation. This arrangement had too little central authority to promote growth and prosperity. In particular under the Articles some states created interferences with interstate commerce to protect local businesses.

The states then convened a Constitutional Convention in Philadelphia in1787 to create a new governmental structure. At the end of the Convention as Benjamin Franklin, one of the participants, was leaving a woman asked him what form the new government would take, republic or monarchy? Franklin famously answered, "A republic, if you can keep it?"

The framers of the Constitution created a wise and cautious structure. First of all they limited the powers of government to those that were expressly given in the Constitution. Second they created a division of power to serve different purposes. The Constitution then states that the legislative power, the power to create laws, is vested entirely with Congress. The executive power to carry out the laws enacted by Congress is vested in the Presidency. The judiciary was created to pass judgement on the constitutionality of the laws passed by Congress and their manner of execution by the President.

The powers of Congress enumerated in Article I, Section 8 of the Constitution were

  1. To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
  2. To borrow on the credit of the United States;
  3. To regulate Commerce with foreign Nations, and among the several States, and with the Native American Tribes;
  4. To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;
  5. To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;
  6. To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;
  7. To establish Post Offices and Post Roads;
  8. To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
  9. To constitute Tribunals inferior to the supreme Court;
  10. To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;
  11. To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
  12. To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
  13. To provide and maintain a Navy;
  14. To make Rules for the Government and Regulation of the land and naval Forces;
  15. To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
  16. To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
  17. To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;
  18. To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Ten amendments limiting the powers of the Federal government were added as the first act of Congress when it first met

The Timeline of the Ratification of the Constitution

Number of
DelawareDec. 7, 178730-00
Pennsylvania Dec.12,178746-230
New JerseyDec.18, 178738-00
ConnecticutJan.9, 1788128-400
MarylandApril 28, 178863-110
South Carolina May 23, 1788149-732
New Hampshire June 21, 178857-4712
VirginiaJune 25, 178889-7920
New York July 26, 178830-2733
North Carolina Nov.21, 1789194-7726
Rhode Island May 29, 179034-3221
Vermont*Jan. 10, 1791105-20

*Vermont was not one of the original 13 colonies. The Vermont Republic
was formed in 1777 during the war for independence of the original thirteen.
It voted to join the United States and ratified the Constitution.

The Nullification by Abraham Lincoln
of the States' Right to Secede

The Supreme Court ruled in Texas versus White in 1869 that unilateral secession by a state is unconstitutional. However since the Constitution was in effect a contract between the States and the Federal Government and the Supreme Court is an agency of the Federal Government its opinion is irrelevant. The adjudication of a states' right to withdraw from the contract would have to be carried out by a third part independent of the two parties to the contract. It is notable that Lincoln did not even call for the Supreme Court to adjudicate secession before opening hostilities. Of course, neither did the seceding states.

For Lincoln the issue was only the preservation of the integrity of nation; for him the issue was not slavery. He famously said in a letter to Horace Greeley, the editor of the influential New York Tribune

I would save the Union. […] If there be those who would not save the Union, unless they could at the same time save slavery, I do not agree with them. If there be those who would not save the Union unless they could at the same time destroy slavery, I do not agree with them. My paramount object in this struggle is to save the Union, and is not either to save or to destroy slavery. If I could save the Union without freeing any slave I would do it, and if I could save it by freeing all the slaves I would do it; and if I could save it by freeing some and leaving others alone I would also do that. What I do about slavery, and the colored race, I do because I believe it helps to save the Union; and what I forbear, I forbear because I do not believe it would help to save the Union.

Before the Civil War United States was a plural noun; after the Civil War it became a singular noun.

There has been a concerted effort to promote and perpetuate the notion that the American Civil War was over slavery and the ending of slavery justified the enormous tragedy of over six hundred thousand American killed and uncounted numbers severely wounded. They were not killed ending slavery, they were killed nullifying the Constitutional right of the states to secede. There was only one country where slavery ended only with bloodshed and that was Haiti and even there the story was more complicated than just a rebellion against slavery.

The Lincoln administration did not end slavery in the Union territories where it could have done so. The Emancipation Proclamation ended slavery in the Confederate States where it could have no effect and did not apply in Union territory it would have had an effect. The Emancipation Proclamation was issued because Britain was threatening recognize the Confederate States the basis that there was no difference between the United States and the Confederate States on the issue of slavery.

As it happened there was something of an emancipation of slaves in the Confederacy. It was proposed in 1864 that any slave willing to fight in the army for the Confederacy would be free. It was debated in newspapers and the Confederate Government which finally enacted the necessary legislation in March of 1865. But General Lee surrendered at Appamatox in April of 1865 thus ending the Civil War.

The further abrogation of the Original Constitution came with the courts allowing the Interstate Commerce Clause to cover almost any action Congress chose to take.

The shift of Congressional powers to agencies in the executive branch became excessive during the Progressive Era from the 1890's to the 1920's. This was motivated by the notion that government could "achieve the greatest good for the greatest numbers" through social engineering. This shift became institutionalized during Roosevelt's New Deal. Because of the Great Depression it was widely believed that ongoing executive agencies were necessary to manage the operation of the economy. So the structure of the country shifted from one in which power was vested solely in Congress to one in which a large degree of power lay in executive branch bureaucracies.

(To be continued.)

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