The U.S. Constitution was crafted in 1787 both to establish a new central government and to limit it. Some of the limitations are direct, some are subtle, and some are hidden. The chief instrument of limitation is the separation of powers, the brainchild of James Madison.
The late Justice Antonin Scalia called the separation of powers the most unique and freedom-enhancing aspect of the document. Madison himself would later argue that he intentionally crafted the separation so as to enhance friction and even jealousy among the three branches of government, thereby inducing fidelity to its core values, as well as transparency and accountability in the popular branches.
Thus, Congress writes the laws, the president enforces the laws, and the judiciary interprets the Constitution and the laws. Congress raises taxes and declares war. The president appoints judges and wages war. The judiciary assures that neither Congress nor the president interferes with personal liberty.
Congress and the president are answerable to the voters. The life-tenured judiciary is not. The purpose of an independent judiciary is to be the anti-democratic branch of the government. Its duty is not to reflect the popular will, but rather to protect life, liberty and property from the whims of the popular branches.
In the post-World War II era, Congress has attempted to give away some of its powers to the presidency. For example, even though the Constitution declares that only Congress can spend federal dollars, it has often appropriated funds for the president to spend as he sees fit — and presidents in turn have often delegated those spending decisions to folks whom they have hired.
As well, modern presidents have started dozens of wars without congressional declarations of war, and Congress has looked the other way. Congress even permits the president to raise taxes — so long as he calls them tariffs — and declare an emergency of his own making.
Can the Congress constitutionally give away some of its powers to the president? The short answer is: NO.
The longer answer is far more complex as, unless a proper case is properly before the court, there is no mechanism to prevent this transfer of power. Justice Scalia steadfastly maintained that delegated powers cannot be redelegated. The purpose of the separation of powers is not to enhance the hegemony of each branch of government. Rather, it is to safeguard personal liberty by preventing one branch from dominating either of the other two.
Stated differently, its purpose is to prevent tyranny.
There are numerous other structural constitutional limitations on the government. Thus, for example, the First Amendment does not create the freedoms of speech and the press; rather it bars the government from interfering with these preexisting rights.
As well, the Fifth Amendment guarantees due process whenever the government seeks the life, liberty or property of any person, citizen or not. Due process, in this context, means a fair hearing before a neutral independent judge who has no interest in the outcome of the case. Due process presumes that if the process is fair and just, the outcome will be respected and followed.
Can Congress or the president punish speech or deny due process? The textbook answer to this question is a resounding: NO. But history is replete with examples of presidents, from John Adams to Donald Trump, complying with statutes that purport to enable them to punish speech or deny due process.
For example, in 1798, Congress made it a crime to criticize the government’s foreign policy. That law was clearly unconstitutional, yet the Adams administration had folks prosecuted and upon conviction incarcerated for speech. After three years, Congress repealed the law. Some of the same folks who had ratified the First Amendment trampled it.
Congress has also authorized the secretary of state to deny permanent resident status to persons already peacefully here and possessing valid visas, based on their speech. This, too, is unconstitutional as it directly violates the First Amendment — and when the person is deported without due process, the Fifth Amendment as well.
These amendments have deep-rooted premises and values that they protect. The premise of the First Amendment, the premise of the Constitution itself, the premise of liberal democracies is the inescapable lesson of history that limited government in a free society only works when everyone is free to speak their minds and no one need fear masked men grabbing them in their homes, on a public street or airport, and shipping them off to a hell hole in Louisiana or El Salvador.
Until now.
Now, these are real cases that are being litigated today. Congress violated the separation of powers, and the First and Fifth amendments when it permitted deportation because of speech. It permitted trials before immigration judges, who are not neutral life-tenured judges, but rather stooges who work for the prosecutor, who is the Secretary of Homeland Security. The president often deports without hearings.
All confinement and restraint is a denial of natural rights — to speak and to move about freely. The premise of the Fifth Amendment is that no government can be trusted to deny rights for any reason — no matter how dangerous it claims the defendant may be — without a trial at which the government must prove fault before an independent judge. This week, without a hearing, the feds admitted they sent the wrong person to be tortured in El Salvador.
The president claims he has a mandate to rid the country of immigrants whose speech he and his benefactors hate and fear, and he complains that the Constitution is an impediment. The government has no business evaluating the content of speech. And the Constitution is an intentional impediment to tyranny. No mandate, no matter how one-sided — even all persons in the country but one — can justify trampling even one person’s natural rights.
Do Congress and the president take the Constitution seriously? The answer is obvious.
To learn more about Judge Andrew Napolitano, visit https://JudgeNap.com.
COPYRIGHT 2025 ANDREW P. NAPOLITANO
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