Constitutional Solutions: Article I

Nondelegation and Representative Government

Welcome back to Lex Liberas, where your humble author writes and rants about constitutional law every Friday in good ol’ blog post fashion. This is all the cherry on top of a much larger cake though, and the Sunday newsletters are always free, so please invite any interested dinner guests to reserve their seat here:

After that deliciously overdone metaphor/analogy, let’s get to the good stuff. As I mentioned last week, for the next two months, I am going to walk through each Article of the Constitution and examine a plausibly feasible method of using that Article’s lessons to restore the constitutional framework of American self-government interesting). This is not a comprehensive or academic project, but merely a fun exploration of the many solutions our Founders left us in the Constitution, and the many lessons it can teach us.

Without further ado, Article I.

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The Constitution’s First Words

Article I of the Constitution opens with clear and precise words:

“All legislative Powers herein granted shall be vested in a Congress of the United States.”

The word “all” leaves no room for qualifications or exceptions: all legislative power belongs to Congress. From there, Article I enumerates specific powers, namely taxation, spending, declaring war, regulating interstate commerce, and so forth. Nobody - voter, lawyer, or judge - disputes that Congress possesses lawmaking power. Over the centuries, courts have nonetheless gradually permitted Congress to delegate that authority to executive agencies. Today, those bodies form an administrative state that legislates by regulation, prosecutes by enforcement, and adjudicates by arbitration and agency “courts.” In other words, “all legislative [power]” no longer lies with Congress.