Men always want more power. Separation of powers, as Montesquieu laid it out, is a means of playing this cupidity against itself. The American implementation is not so focused on the balancing of classes as Montesquieu was (albeit some element of this can be found in comparing the branches and the original bicameral design of Congress), but it maintains the same belief that men must be made to check each other if liberty is to survive (Kawade, 273-4; Madison, Art. I, Sec. 2-3). This separation, however, is blurry at the edges. The legislative branch has a portfolio expanded beyond all plausibility by the courts (Marshal). The executive’s power is at once minimally described and generously outspread (Baker & Williams 276-7). Today’s concern, the judiciary, has chosen to define its own authority and has used that power to evade many of its proper responsibilities.

Legislature

Because the American federal government is a tripartite division of power, and because as part of the separation of powers, each branch of the government must have a finger in the other’s pies, understanding the power of the judicial branch requires an understanding of at least certain elements of the legislative and executive branches. The power of the judiciary, as will be seen, is to decide the problems which arise under the law, Constitutional or legislative, or which rise from the executive’s choices in interpreting the law. Seeing where the judiciary has neglected its duty, therefore, relies on understanding certain pertinencies in the structure of the legislature and executive.

Necessary and Proper

The legislature’s powers are enumerated for the most part in Article I, Section 8 of the Constitution (Madison). The most crucial of these clauses is the famous Necessary and Proper clause, which grants the federal Congress the right to create such laws as a ‘necessary and proper’ to the execution of the powers of the government in general or the officers thereof. At its most restrictive reading, this law grants Congress only the means utterly integral to the enumerated purposes (Marshall, McCulloch, 66). At its most expansive, this law allows any means which can be claimed as connected (66-7).

‘Necessary’

The Ninth and Tenth Amendments retain for the states and the people all rights not granted by the Constitution to the federal government (Madison). This principle, the avoidance of tyranny, must be the guiding principle of reading the Constitution, here and elsewhere. ‘Necessary and proper’ must be interpreted under this rubric, remembering the old Virginia motto: “Sic semper tyrannis.”

If ‘necessary’ is interpreted as John Marshall interprets it in McCulloch v Maryland, expansively and permissively, the government runs a grave risk of engaging in tyranny (67). Necessary must be a restrictive term, by its plain meaning. As such, every legislative act which pleads ‘necessity’ may fall inside or outside the term’s true breadth. If it falls outside, it is tyranny, being outside the power granted to Congress. Avoiding tyranny, therefore, requires interpreting ‘necessary’ as strictly as is practical, preferring the Maryland interpretation to the Marshall. Moreover, this course is no injury to government; it has still every power and the full right to sufficient means in exercising that power (for ‘all necessary powers’ cannot be less than sufficient).

‘Proper’

The second term in this clause’s eponymous couple has gotten comparatively short shrift. What does ‘proper’ mean? In common parlance, from now back to the days of Blackstone (the Founder’s legal authority for English law and terminology), ‘proper’ means ‘corresponding positively to an external standard’ (Kempin 82). Eating peanut butter sandwiches while walking can be proper behavior on a hike, but it is not proper at a fancy dinner party. In one circumstance, such behavior comports with the standard of etiquette; in the other, it does not. The question, therefore, is of what external standard ‘proper’ refers to in this instance.

Two potential standards present themselves. The first is the much less palatable to modern society: “[T]he Laws of Nature and of Nature’s God” (Jefferson). As referenced in the Declaration of Independence, this natural law standard could provide the standard for ‘proper’ in the Constitution. This holding would bind the legislature to follow an objective moral standard, a standard established by context as the standard of the Christian God.

The alternative is the Constitution as a whole, a choice slightly more palatable to modernity. Under this interpretation, Congress would be bound by the word ‘proper’ to match their laws to the Constitution’s letter and spirit. The restriction would not be a null addition to ‘necessary,’ moreover, because it would rule out any ‘necessary’ legislation which trespassed onto areas granted to other parts of government, such as the presidential rights of appointment, and that which did not match the explicit limits of Congressional power in grants such as Article III, Section 3.

The most plausible answer to the question, of course, is that both standards may justly be considered as applied by the clause. Such a course heeds the injunction against tyranny given by the Ninth and Tenth Amendments by imposing on the government every just stricture available (Madison). Moreover, the Constitution and God’s law are already binding on the legislature, regardless of this clause’s meaning, so that the imposition of both by it merely confirms in explicit law what nature and nature’s God respectively command (Madison, Art. I, Sec. 1; Acts 5:29).

Delegation

Can the legislature delegate legislative power to another body or another branch of government? Current Supreme Court doctrine allows for it (Loper Bright, 1-4). The Constitution itself contains only one explicit provision for the legislature delegating it power to another, the provision allowing them “vest” the right to appoint “inferior officers” in the President in Section 2 of Article II. The precedent set by this command is in its implication, not its imitation.

If the Constitution needs to explicitly vest Congress with the right to delegate its power, then by implication Congress has no native or default right to delegate its powers. Admittedly, the delegation instanced is of power to appoint officers, not legislative power per se, but the principle, in lieu of a limitation in the text, must apply to all of the legislature’s powers. Unless the Constitution grants a right to delegate, Congress must assume it does not have that right, as per Crag and Blackstone (Blackstone, Vol. 2, 66). Once more, the avoidance of tyranny commands it. Improper delegation is tyranny in both the abdicator and receiver of power, after all. Delegation of rule or law making power to the administrative state is therefore forbidden, despite current Supreme Court doctrine.

This ban on delegation extends further to bans on delegating legislative power to the judicial branch (or even to a legislative body not Congress itself). In Mistretta, the Supreme Court held that the legislature was allowed to create a new body technically residing in the Judicial Branch but answerable to Congress and the President (like a standard executive body) and to give that body the power to promulgate binding ‘guidelines’ for sentencing (Baker & Williams, 292-4). The innovation was blatantly a delegation of legislative power, for the rules of sentencing are, because binding, effectively amendments of the laws which the judges and executives apply. In so expelling legislative power from itself, even temporarily and partially, Congress countermanded the basic command given to it in the Constitution, its constituting command even: “All legislative Powers herein granted shall be vested in a Congress of the United States” (Madison, Art. I, Sec. 1).

Internal Rules

Here a distinction must be drawn between legislation and the rules integral to a branch of the government. All three branches of the government have the right to create certain rules internal to their branches, promulgated by the Constitutional authorities therein—Congress, the president, and the Supreme Court plus federal judges respectively. This power is inherent to the grant of legislative, executive, and judicial power respectively, as being necessary to its exercise and therefore implied by the command to that exercise.

The Necessary and Proper clause may seem to indicate otherwise by implicitly distinguishing the legislature’s grant from the rest. That clause, however, was added for political reasons, as a surety against a specific problem in the previous constitution’s government, rather than as a legal necessity (ArtI.S8.C18.). Furthermore, the clause is irrelevant to the legislature’s internal regulation power. The Necessary and Proper clause empowers Congress to make laws; it does not give them the power implicit in their legislative role to establish rules and procedures, including information-gathering commissions and other useful non-legislative subordinate services. That power is implicit in the original grant and explicit in a later section (Madison, Art. I, Sec. 1; Sec. 5).

Such rules, however, cannot have more power than is appropriate to rules of procedure. Any criminal or more-than-administrative penalties attached to such rules must have legislative pretext. The legislature’s own power of self-government establishes the precedent for this (Madison, Art. I, Sec. 5-6). The power of impeachment given to the legislature also upholds the pattern (Art. I, Sec. 5). As part of this restriction, a branch’s internal rules cannot be applied to persons not members of that branch (except by mediation of the other branch’s rules); applying an internal rule of function to an outsider makes it a law, violating separation of powers in the executive and judiciary or bypassing legislative process in the legislature.

Herein Granted

One difference between Article I and the two succeeding articles requires consideration. The legislature’s article grants it “All legislative Powers herein granted,” while the two others grant “The executive power” and “The judicial power” respectively (Madison, Art. I, Sec. 1; Art. II, Sec. 1; Art. III, Sec. 1). An implication might be drawn that the legislative power is limited, but the other two are not. Multiple reasons militate against this interpretation.

First, the judiciary has its own unique qualifying phrase, “of the United States,” which given the Constitution’s nature as the definition of the United States functions identically to “herein granted.” In this way, two of the three branches are limited, and the limitation on each comes in a different form. The executive being without either formula is therefore a much weaker indication that it lacks limitation, as both other branches lack the limitation given to the other.

Second, the powers granted to the two other branches, as defined in their sections, are largely based off of the law- Constitutional and legislative (Art. II, Art. III). The exception is the term ‘equity’ in the judiciary’s jurisdiction, but the judiciary was already limited by “of the United States,” so that ‘equity’ is clearly best interpreted as a principle modifying the jurisprudential method of the courts, not an expansion to their power (Art. III, Sec. 1, 2; Equity). Thus, the limitation on the legislature functions as a stricture on both other branches, who besides their Constitutional empowerments are authorized only to enact the legislature’s work.

Third, the Tenth Amendment reserves to the states and the people all powers not delegated to the federal government (Madison). If the executive, the only apparently unlimited branch, is given total executive authority, unleashed from Constitution or law, this provision becomes instantly meaningless; the same goes for the judiciary. Basic respect for the Constitution (and the practice endorsed by statutory canons) requires the Tenth Amendment to have some meaning (Stevenson 2). Perhaps the amendment is redundant to the Constitutional structure, as some have held, but it can only be so if the Constitutional structure already contains its substance (Rakove, 119-20).

Executive

Executive power is much less relevant than legislative power to the discussion of judicial jurisdiction at this level of granularity. The jurisdiction the court does have over the executive will appear in direct consideration of the judiciary. Here need be established only the independent functions of the executive, which are not susceptible to judicial review, and the essential nature of ‘executive’ power.

Independent Functions

The executive’s independent powers consist in purely military actions (though any judicial actions in the military are judicially reviewable), in establishing rules for his executive department (as per the right to require an opinion of principle officers), in granting reprieve and pardon (except in impeachment), in making treaties insofar as they consider only his independent powers, and to fill vacancies in government offices. In these powers, the court’s only power is to determine whether the president has in fact done such an act; if he has, therein the court must be silent, as these powers are either separate from justiciability by being purely executive or are, in the case of the pardon power, explicitly superior to the court’s power). The court does have the right to examine the method of appointing an officer, whether by comparing it to the Constitution or to a Constitutional statute, but that right extends only to negating the appointment without prejudice (Madison, Art. II, Sec. 2-4).

General Powers

The overall nature of executive power is not explicitly defined in the Constitution, but it can be seen clearly implied in the sole general grant of power in Article II: “He shall take Care that the Laws be faithfully executed…” (Madison, Sec. 3). This empowerment, in conjunction with the presidential oath to “preserve, protect, and defend the Constitution of the United States,” defines what the president is to ‘execute’ outside of his specific powers: the law of the United States, legislative and Constitutional (Sec. 1).

Judiciary

The summary of judicial jurisdiction is given in Article III, Section 2 of the Constitution. The first term to consider here is “in Law and Equity.” By defining the types of questions the court may consider, this phrase defines the jurisprudential framework which the courts are to use, to the exclusion of preference and novelty: ‘law’ (legal reasoning) and ‘equity’ (moral reasoning (Equity)). Whether these terms are substantial or merely procedural is a matter for debate; if substantial, the ‘law and equity’ must be the Constitution and traditional-to-America Christian ethics respectively.

Regardless, if the court chooses to use a different framework, whether morally-legally different or of another context entirely, it implicitly changes the question it answers away from one of ‘law’ or ‘equity.’ This action would trespass outside its jurisdiction, however, and is therefore illegitimate. This restriction applies to ‘controversies’, not just the ‘cases’ they may be attached to, as all ‘controversies’ require the participation of the law (to which equity is attached) either by being against the government (constituted by law) or by appealing to the courts-as-arbitrator (likewise).

Cases and Controversies

The federal judicial power is limited to ‘cases’ and ‘controversies’ regarding the Constitution and the laws the Constitution authorizes (federal statute and treaties), to admiralty and diplomacy ‘cases,’ and to ‘controversies’ which cross state borders or involve the federal government directly (Madison ,Art. III, Sec. 2). Most of these terms are, while debated, not apparently difficult to understand at the base. The difficulties of their definition rest beyond this paper’s field, in the morass of judicial cowardice and subtlety.  The exceptions are the oft-paired ‘cases’ and ‘controversies.’

What is a ‘case’? What is a ‘controversy’? The common-sense meaning of the two is available, of course, but when reading a document written nearly a quarter-millennium ago, it behooves the interpreter to look to sources the authors were familiar with. In order to define ‘case’ and ‘controversy,’ therefore, look to Blackstone’s use of them in his famous Commentaries. In those books, both terms appear, and the usage in Blackstone can be justly regarded as authoritative given Blackstone’s position in the Founding era as the central legal text (Kempin 81-2).

In Blackstone’s use, a ‘case’ is a problem of principles and facts both, wherein legal questions or applications are entangled with an actual event or interaction (Blackstone, Book the Second, 314, 320, 335). ‘Situation’ or ‘occasion’ are both tolerable synonyms. A ‘controversy,’ meanwhile, is a term much less used by Blackstone, appearing less than five times in Volume 4, and always in its colloquial meaning maintained even today: a ‘disagreement’ (170, 264). It can justly be confined to disagreements over principles, rather than facts, given context and the need to differ from ‘case.’

The effectively colloquial definitions furnish by Blackstone provide the meanings which the Constitution’s other language modifies and restricts. Under to the Constitution, the ‘cases’ and ‘controversies’ a court deals with must be within ‘law and equity,’ and they must include certain parties or circumstances, as prescribed by the rest of the text (Madison, Art. III, Sec. 2). Thus, contra Currie’s opinion and that of a Supreme Court, the federal judiciary can properly have jurisdiction over the ‘cases and controversies’ occurring in the District of Columbia (a jurisdiction not Congress’s as Congress is given only the right to legislate, not judge), as those questions occur under purely federal law (Currie, 43; Madison, Art. I, Sec. 8).

The largest divergence from current judicial doctrine comes in the definition given for ‘controversy.’ Under current law, the federal judiciary refuses questions which it rules non-adversarial, political, or lacking current-or-imminent ‘actual’ damages remediable by the court (Barron et al. 1625; Day 1618-9; DeFunis 1683-7). The definition of ‘case’ brings up an issue here with the ‘adversarial’ component in particular, but ‘controversy’ countervails on all points.

Advisory Opinions

Is giving an advisory opinion within the federal judiciary’s remit? The very earliest Supreme Court ruled it was not (Day 1618-9). They did rightly, at least on the verdict; the provision in the Constitution which advising the Congress comes closest to fulfilling is jurisdiction over “Controversies to which the United States shall be a party” (Madison, Art. III, Sec. 2). However, because the request for an advisory opinion came from the executive alone, the United States corporately was arguably not a party (Day 1618). If the request had come by a law passed in legislature, signed by the president, and presented before the Supreme Court, the advisory opinion would fall within the Court’s proper jurisdiction- even in non-adversarial cases such as Muskrat (1618-20). Justiciable controversy, disagreement on law, does not require that the parties be adversarial to each other, only that a disagreement be present between two trains of thought on a matter within court jurisdiction.

Standing

The doctrine of standing and its related doctrines—mootness, ripeness, and laches—are largely unsustainable under these corrected definitions of ‘case’ and ‘controversy’ (Barron et al. 1625; Ripe; Laches; Moot) The Constitution does not require that plaintiffs have skin in the game to present a ‘case’ or ‘controversy,’ only that it arises in the field of ‘Law and Equity’ either under the Constitution’s umbrella or with certain parties involved. Standing, mootness, ripeness, and laches therefore fail; because to abdicate from proper jurisdiction is as tyrannical as to seize improper jurisdiction, the principle of avoiding tyranny commands that the court discard all four for the most part.

The first small exception to this condemnation comes with standing and ripeness with regard to cases. If the plaintiff in a case cannot allege any interest at all or in which the issue is not within law’s moral (equitable) and Constitutional (legal) scope, the case must be set aside. Still, because the plaintiff can allege some interest, however small, all taxpayer cases which allege improper spending are within the court’s proper jurisdiction and have standing (Barron et al. 1625-9). As for ripeness, a case which has not yet shown signs of coming into being is not factual and therefore not actually a case, as yet. Still, in most cases of ‘Law and Equity’ which can arise under the Constitution, a controversy in which the government is a party can be found, given the Constitution’s focus on the government, largely obviating these exceptions (Baker & Williams, 93-6). The exceptions which remain are the purely factual, where no question of law can be alleged (so that a hypothetical burglary cannot be tried).

The second small exception is laches. While the doctrine itself is Constitutionally intolerable as applied to questions of law, questions of facts are capable of expiring. Here, however, statutes of limitation are more than adequate; even if they were not, the court could simply find the evidence insufficient to convict for reasons related to its degradation over time.

If the government is worried about being over-loaded with cases, it should minimize the number of laws to provide ‘Law’ grounds for cases (Sutherland 1626-9). Abdicating from its responsibility is a fresh tyranny, not a solution to legislative bungling. Courts have no right to fix what the legislature messes up (Delaney 117).

Sovereign Immunity

The courts have also chosen to provide ‘sovereign immunity’ to the states and the federal government in certain circumstances based on the Eleventh Amendment (Madison; Amdt11.5.1). The interpretation required to do so flies in the face of any sensible hermeneutic. The original language of the Constitution could not deny sovereign immunity more explicitly by using the name of the doctrine (Madison, Art. I, Sec. 2). The Eleventh Amendment certainly grants immunity to the states from suits by citizens in federal court, but if it were intended to grant sovereign immunity in general, its framers forgot to write that part in. The principle of avoiding tyranny and the rules of English which do not attach to a sentence stating ‘A’ the meaning ‘A-and-B-and-C-and-D’ (Blackstone, Vol. 2, 66). Thus, both principle and common sense require that the Eleventh Amendment be read narrowly.

Political Questions

The final doctrine by which the courts escape dealing with problems is that of ‘political questions.’ This doctrine holds that certain questions are nonjusticiable because they are exclusively the province of other parts of government (Barron et al. 34-51). In some instances, these exceptions are plainly Constitutional: pardon, nomination, impeachment, Congress’s self-regulation. These are given by Articles I and II, alongside other purely executive and legislative functions, to the other branches, not to the judiciary (Madison, Art. I, Sec. 5-6; Art. II, Sec. 3-4). As stated above, the courts have the sum power of recognizing the event has happened in order to refuse further action. The Constitution presents these powers as implicitly unilateral and therefore not subject to review.

Other questions, however, can clearly admit review, their elements being sub-Constitutional, whether statute, treaty, or executive process. In such cases, the portions of the executive and legislative power which are given in the Constitutional may not be questioned, but the methods and procedures, actual, commended, or professed, of the enactments may be inspected by the court, comparing it to the Constitution (and, under both “Necessary” and “Proper,” to God’s law (Madison, Art. I., Sec. 8; Art. III, Sec. 2)). Such inspection is required to be within the court’s jurisdiction by the first segment of Article III, Section 2: “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made… under their Authority.”

Necessary and Proper

The final question is whether the court can properly strike down legislation on the basis of the Necessary and Proper clause. Despite the reluctance seen in the political question doctrine, precedent demonstrates that the court is entirely capable of striking down policy on grounds of its relation to purpose, as seen in Brown (Barron et al. 34; Warren). Indeed, ‘compelling interest’ is in part a policy decision. The court may not, as it did in Brown, engage in legislation, but it may strike down laws as being improper or unnecessary, whether in context of the case or of a controversy. In doing so, it ought to consider, of course, the legislature’s testimony as to necessity, though not to the point of full deference (Barron et al. 44-5). Executive nullification, however, is beyond judicial remedy; as a Constitution-level exercise of the president’s oath, it must be left to political process to redress.

In Sum

The court’s jurisdiction is both wider and narrower than currently held by the court. Under the Necessary and Proper clause, the proper definitions of ‘case’ and ‘controversy,’ and the principles of the last two amendments in the Bill of Rights, the court has field much wider than it has allowed itself. The curtailing which the court has accomplished for avowed reasons of ‘workload’ and non-avowed reasons of cowardice must not be tolerated (Sutherland 1626-9). Yet the court must not pretend to the legislative role it undertakes so often or the allowance of legislative powers to the administrative state it permits. The three branches must be maintained as separate but interlocking institutions, respecting the boundaries of each branch’s power without according to any branch power it ought not to have.

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