Speaking of re-writing the law, Gordon Wood in multiple on-line interviews has emphasized an insightful document written by James Madison, which explains why our Constitution was designed to rein in the process of making law that ran rampant in various states in the 1780's. It was entitled "Vices of the Political System of the United States" and was written in April 1787.
State legislators were elected every year or two, and they rapidly wrote and passed laws to favor those who elected them. As a result, as Madison highlighted in "Vices," the "multiplicity and mutability of laws prove a want of wisdom" and "their injustice betrays a defect still more alarming: more alarming not merely because it is a greater evil in itself, but because it brings more into question the fundamental principle of republican Government, that the majority who rule in such Governments, are the safest Guardians both of public Good and of private rights."
Madison didn't publish or publicize his "Vices" essay. But in Federalist No. 48, Madison fairly famously emphasized related ideas:
"The legislative department [of state governments] is everywhere extending the sphere of its activity, and drawing all power into its impetuous vortex. The founders of our [state] republics have so much merit for the wisdom which they have displayed, that no task can be less pleasing than that of pointing out the errors into which they have fallen. A respect for truth, however, obliges us to remark, that they seem never for a moment to have turned their eyes from the danger to liberty from the overgrown and all-grasping prerogative of an [executive] magistrate, supported and fortified by [complicit or compliant] branch of the legislative authority. They seem never to have recollected the danger from legislative usurpations [as they previously saw in Parliament], which, by assembling all power in the same hands, must lead to the same tyranny as is threatened by executive usurpations."
Charles, you're quite correct. Madison went further than Adams to emphasize (as Montesquieu had) why powers were divided as they were in our Constitution.
In Federalist No. 47, Madison emphasized:
"The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many" (e.g., a monarchy, an aristocracy or a democracy) "may justly be pronounced the very definition of tyranny." "[T]he preservation of liberty requires that the three great departments of power should be separate and distinct. The oracle who is always consulted and cited on this subject is the celebrated Montesquieu."
"Montesquieu" was famous for emphasizing the following. "There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates," or, "if the power of judging be not separated from the legislative and executive powers." "When the legislative and executive powers are united in the same person or body," says he, "there can be no liberty, because apprehensions may arise lest THE SAME monarch or senate should ENACT tyrannical laws to EXECUTE them in a tyrannical manner. " "Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for THE JUDGE would then be THE LEGISLATOR.
Were it joined to the executive power, THE JUDGE might behave with all the violence of AN OPPRESSOR."
In Federalist No. 48, James Madison quoted Thomas Jefferson in Jefferson's "Notes on the State of Virginia" (which were written before the Virginia Constitution, but which continued to apply to the Virginia Constitution because of its defects):
"All the powers of government, legislative, executive, and judiciary, result to the legislative body. The concentrating these in the same hands, is precisely the definition of despotic government. It will be no alleviation, that these powers will be exercised by a plurality of hands, and not by a single one. One hundred and seventy-three despots would surely be as oppressive as one. . . . An ELECTIVE DESPOTISM was not the government we fought for; but one which should not only be founded on free principles, but in which the powers of government should be so divided and balanced among several bodies of magistracy, as that no one could transcend their legal limits, without being effectually checked and restrained by the others."
Remedying the dangerous defects in state constitutions was the primary reason for the push for a national constitution. So Madison emphasized: "It will not be denied, that [all] power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it."
In Federalist No. 51, Madison emphasized that the first and most fundamental truth about the "separate and distinct exercise of the different powers of government" is that it was implemented in our Constitution because it is "essential to the preservation of liberty." Of course, "each department should have a will of its own" but we must never forget that all "executive, legislative, and judiciary" authority is "drawn from the same fountain of authority, the people."
Like you, I was making the point that our Constitution was designed, in part, to slow down the process of making law (in part, by dividing the power to make law between Representatives, Senators and the President)). Madison also sought to ensure the federal government had the power to veto state legislation that violated our Constitution. That power was vested directly in the judiciary (to void laws that were unconstitutional when relevant to cases). That power also was vested indirectly in Congress (to make laws in certain areas of law in which the Constitution gave Congress jurisdiction).
For those who think it important for the Nation to impose more tariffs, I understand that today's decision will be dis-appointing. All I can offer them is that most major decisions affecting the rights and responsibilities of the American people (including the duty to pay taxes and tariffs) are funneled through the legislative process for a reason. Yes, legislating can be hard and take time. And, yes, it can be tempting to bypass Congress when some pressing problem arises. But the deliberative nature of the legislative process was the whole point of its design. Through that process, the Nation can tap the combined wisdom of the people's elected representatives, not just that of one faction or man. There, deliberation tempers impulse, and compromise hammers disagreements into workable solutions. And because laws must earn such broad support to survive the legislative pro-cess, they tend to endure, allowing ordinary people to plan their lives in ways they cannot when the rules shift from day to day. In all, the legislative process helps ensure each of us has a stake in the laws that govern us and in the Nation's future. For some today, the weight of those virtues is apparent. For others, it may not seem so obvious. But if history is any guide, the tables will turn and the day will come when those disappointed by today's result will appreciate the legislative process for the bulwark of liberty it is.
Speaking of trying to remake the law. It was interesting to contrast the writing of SCOTUS justices regarding Trump's tariffs with the text of the paramount law of the supreme law of the land.
The Constitution clearly established that the role of the President regarding these tariffs was to "from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient" and "take Care that the Laws be faithfully executed." That's it.
The president has no more powers regarding this issue than Article I, Section 10 reserved to the states. "No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it's inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress." Clearly, the People in our Constitution delegated to Congress, alone, the power to control "any Imposts or Duties on Imports or Exports."
Article I emphasized that "All legislative Powers" that were "granted" by the People were "vested in a Congress." Obviously, the People vested in Congress, alone, the power to raise revenue or to govern trade by means of any imposts or duties. Article II emphasized that the People "vested in a President" only "executive Power." Then, the People explained to the Congress and the President their respective duties relevant here.
Article II commanded that the President "shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient." If the president thinks tariffs are necessary and expedient, he must make the case to Congress. If he needs help making his case, "he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices."
Article I commanded that Congress shall "make all Laws" that are "necessary and proper for carrying into Execution [Congress's enumerated] Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof," i.e., in the executive or judicial branches.
Article I commands the president to either "approve [a bill and] sign it" or "return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law." Then, Article II commands, the president "shall take Care that the Laws be faithfully executed."
Moreover, absolutely "All Bills for raising Revenue shall originate in the House of Representatives." Also, "No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time."
Trump, himself, insisted that tariffs were imposed to raise revenues, so he clearly illegally usurped the power to impose the tariffs that he arbitrarily made up. Trump's current whining about SCOTUS not telling him what to do with all the revenue he raised only further highlights the illegality of what he did.
Vesting the powers to raise revenue exclusively in the House of Representatives always has been one of the most important pillars of the separation of powers between the sovereign people and all our public servants. The members of the House of Representatives are the representatives of the people who (from the outset) were most directly and most often subject to the approval or removal by the people. The second sentence of Article I emphasized that the people can replace any or even all the members of the House every 2 years: "The House of Representatives shall be composed of Members chosen every second Year by the People of the several States." That is a crucial limitation on the power of the House to initiate laws for which we, the people, will have to pay.
Incidentally, it wasn't until the Seventeenth Amendment (in 1913) that the people reserved to themselves the power to elect Senators directly. And to this day, only 1/3 of the Senate can be removed by voters every 2 years.
Much that Trump does (including regarding tariffs) and the many discussions by SCOTUS and other commentators highlight the fact that more laws expressly restricting the president's powers are necessary and proper. That's the point of Article I commanding that Congress has the power and the duty to "make all Laws" that are "necessary and proper for carrying into Execution [not only Congress's enumerated] Powers, [but also] all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof," i.e., in the executive or judicial branches.
"What should we do when the written law appears to require an unjust result, or when it fails to capture a moral truth we believe is urgent?"
I respectfully submit that it's a very dangerous thing to try to make law reflect "moral truth." The truth about "moral truth" is that it very often means nothing more than a mere opinion of some faction about what their idea of "God" wants. Our Constitution expressly stands against the proposition that "God" or "religion" should control our laws or have any monopoly on truth. So "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States" (Article VI) and no one has any power to make or enforce any "no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech" (Amendment I).
Instead, the purposes of our Constitution (governing all our laws) are "to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity." Those are the "fixed star[s] in our constitutional constellation," as Justice Jackson put it in West Virginia Bd. of Ed. v. Barnette in 1943.
In 1788, Madison in Federalist No. 53 had emphasized similar principles to explain to people why they should ratify the original Constitution (even without a bill or declaration of rights).
"Happily for mankind, liberty is not" unalterably "confined to any single point of time; but lies within extremes, which afford sufficient latitude for all the variations which may be required by the various situations and circumstances of civil society."
In significant part to emphasize the foregoing, “in America” we have “a Constitution established by the people” precisely to establish that it is “unalterable by the government” (our public servants). Indeed, one of the primary purposes of the Constitution was to establish “a government limited, as the federal government will be, by the authority of a paramount Constitution,” i.e., a “Constitution, paramount to the government,” as “security” for “the liberties of the people." The powers of our public servants are unalterable by our public servants. The liberties of the people cannot be unalterable by our public servants.
Some of the foregoing principles were subsequently stated more explicitly of the Ninth and Tenth Amendments regarding the rights retained by the people and powers reserved to the people.
The People expressly "delegated" only limited "powers" to "the United States by the Constitution" and expressly "prohibited by [our Constitution] to the States" certain "powers," in part, to emphasize that other powers "are reserved" to "the people." Moreover, "[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
In 1789, when James Madison proposed amendments that became our Bill of Rights (including the Ninth and Tenth Amendments), he highlighted more explicitly some of the overarching purposes of our Constitution, which govern the purpose and actions of all government in the U.S. Madison proposed:
"That there be prefixed to the constitution a declaration—
That all power is originally vested in, and consequently derived from the people.
That government is instituted, and ought to be exercised for the benefit of the people; which consists in the enjoyment of life and liberty, with the right of acquiring and using property, and generally of pursuing and obtaining happiness and safety.
That the people have an indubitable, unalienable, and indefeasible right to reform or change their government, whenever it be found adverse or inadequate to the purposes of its institution."
Every law we make part of our Constitution or under our Constitution should support the fixed stars in our constitutional constellation.
Speaking of re-writing the law, Gordon Wood in multiple on-line interviews has emphasized an insightful document written by James Madison, which explains why our Constitution was designed to rein in the process of making law that ran rampant in various states in the 1780's. It was entitled "Vices of the Political System of the United States" and was written in April 1787.
State legislators were elected every year or two, and they rapidly wrote and passed laws to favor those who elected them. As a result, as Madison highlighted in "Vices," the "multiplicity and mutability of laws prove a want of wisdom" and "their injustice betrays a defect still more alarming: more alarming not merely because it is a greater evil in itself, but because it brings more into question the fundamental principle of republican Government, that the majority who rule in such Governments, are the safest Guardians both of public Good and of private rights."
Madison didn't publish or publicize his "Vices" essay. But in Federalist No. 48, Madison fairly famously emphasized related ideas:
"The legislative department [of state governments] is everywhere extending the sphere of its activity, and drawing all power into its impetuous vortex. The founders of our [state] republics have so much merit for the wisdom which they have displayed, that no task can be less pleasing than that of pointing out the errors into which they have fallen. A respect for truth, however, obliges us to remark, that they seem never for a moment to have turned their eyes from the danger to liberty from the overgrown and all-grasping prerogative of an [executive] magistrate, supported and fortified by [complicit or compliant] branch of the legislative authority. They seem never to have recollected the danger from legislative usurpations [as they previously saw in Parliament], which, by assembling all power in the same hands, must lead to the same tyranny as is threatened by executive usurpations."
Wood did recognize in part legislative tyranny of State legislatures was a prominent justification for calling a national convention. But Adams seems to have anticipated the solution to the general problem in his own State’s division of executive, legislative, and judiciary powers (art. XXX Dec. of Rights (1780)) that Madison himself acknowledged in Federalist 47. https://content.next.westlaw.com/Document/N2B2B18F0312411DB9292C066B0348FB7/View/FullText.html?originationContext=docHeader&contextData=(sc.Default)&transitionType=Document&needToInjectTerms=False
Charles, you're quite correct. Madison went further than Adams to emphasize (as Montesquieu had) why powers were divided as they were in our Constitution.
In Federalist No. 47, Madison emphasized:
"The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many" (e.g., a monarchy, an aristocracy or a democracy) "may justly be pronounced the very definition of tyranny." "[T]he preservation of liberty requires that the three great departments of power should be separate and distinct. The oracle who is always consulted and cited on this subject is the celebrated Montesquieu."
"Montesquieu" was famous for emphasizing the following. "There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates," or, "if the power of judging be not separated from the legislative and executive powers." "When the legislative and executive powers are united in the same person or body," says he, "there can be no liberty, because apprehensions may arise lest THE SAME monarch or senate should ENACT tyrannical laws to EXECUTE them in a tyrannical manner. " "Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for THE JUDGE would then be THE LEGISLATOR.
Were it joined to the executive power, THE JUDGE might behave with all the violence of AN OPPRESSOR."
In Federalist No. 48, James Madison quoted Thomas Jefferson in Jefferson's "Notes on the State of Virginia" (which were written before the Virginia Constitution, but which continued to apply to the Virginia Constitution because of its defects):
"All the powers of government, legislative, executive, and judiciary, result to the legislative body. The concentrating these in the same hands, is precisely the definition of despotic government. It will be no alleviation, that these powers will be exercised by a plurality of hands, and not by a single one. One hundred and seventy-three despots would surely be as oppressive as one. . . . An ELECTIVE DESPOTISM was not the government we fought for; but one which should not only be founded on free principles, but in which the powers of government should be so divided and balanced among several bodies of magistracy, as that no one could transcend their legal limits, without being effectually checked and restrained by the others."
Remedying the dangerous defects in state constitutions was the primary reason for the push for a national constitution. So Madison emphasized: "It will not be denied, that [all] power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it."
In Federalist No. 51, Madison emphasized that the first and most fundamental truth about the "separate and distinct exercise of the different powers of government" is that it was implemented in our Constitution because it is "essential to the preservation of liberty." Of course, "each department should have a will of its own" but we must never forget that all "executive, legislative, and judiciary" authority is "drawn from the same fountain of authority, the people."
Like you, I was making the point that our Constitution was designed, in part, to slow down the process of making law (in part, by dividing the power to make law between Representatives, Senators and the President)). Madison also sought to ensure the federal government had the power to veto state legislation that violated our Constitution. That power was vested directly in the judiciary (to void laws that were unconstitutional when relevant to cases). That power also was vested indirectly in Congress (to make laws in certain areas of law in which the Constitution gave Congress jurisdiction).
Nice articulation from today’s tariff opinion:
For those who think it important for the Nation to impose more tariffs, I understand that today's decision will be dis-appointing. All I can offer them is that most major decisions affecting the rights and responsibilities of the American people (including the duty to pay taxes and tariffs) are funneled through the legislative process for a reason. Yes, legislating can be hard and take time. And, yes, it can be tempting to bypass Congress when some pressing problem arises. But the deliberative nature of the legislative process was the whole point of its design. Through that process, the Nation can tap the combined wisdom of the people's elected representatives, not just that of one faction or man. There, deliberation tempers impulse, and compromise hammers disagreements into workable solutions. And because laws must earn such broad support to survive the legislative pro-cess, they tend to endure, allowing ordinary people to plan their lives in ways they cannot when the rules shift from day to day. In all, the legislative process helps ensure each of us has a stake in the laws that govern us and in the Nation's future. For some today, the weight of those virtues is apparent. For others, it may not seem so obvious. But if history is any guide, the tables will turn and the day will come when those disappointed by today's result will appreciate the legislative process for the bulwark of liberty it is.
Speaking of trying to remake the law. It was interesting to contrast the writing of SCOTUS justices regarding Trump's tariffs with the text of the paramount law of the supreme law of the land.
The Constitution clearly established that the role of the President regarding these tariffs was to "from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient" and "take Care that the Laws be faithfully executed." That's it.
The president has no more powers regarding this issue than Article I, Section 10 reserved to the states. "No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it's inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress." Clearly, the People in our Constitution delegated to Congress, alone, the power to control "any Imposts or Duties on Imports or Exports."
Article I emphasized that "All legislative Powers" that were "granted" by the People were "vested in a Congress." Obviously, the People vested in Congress, alone, the power to raise revenue or to govern trade by means of any imposts or duties. Article II emphasized that the People "vested in a President" only "executive Power." Then, the People explained to the Congress and the President their respective duties relevant here.
Article II commanded that the President "shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient." If the president thinks tariffs are necessary and expedient, he must make the case to Congress. If he needs help making his case, "he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices."
Article I commanded that Congress shall "make all Laws" that are "necessary and proper for carrying into Execution [Congress's enumerated] Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof," i.e., in the executive or judicial branches.
Article I commands the president to either "approve [a bill and] sign it" or "return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law." Then, Article II commands, the president "shall take Care that the Laws be faithfully executed."
Moreover, absolutely "All Bills for raising Revenue shall originate in the House of Representatives." Also, "No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time."
Trump, himself, insisted that tariffs were imposed to raise revenues, so he clearly illegally usurped the power to impose the tariffs that he arbitrarily made up. Trump's current whining about SCOTUS not telling him what to do with all the revenue he raised only further highlights the illegality of what he did.
Vesting the powers to raise revenue exclusively in the House of Representatives always has been one of the most important pillars of the separation of powers between the sovereign people and all our public servants. The members of the House of Representatives are the representatives of the people who (from the outset) were most directly and most often subject to the approval or removal by the people. The second sentence of Article I emphasized that the people can replace any or even all the members of the House every 2 years: "The House of Representatives shall be composed of Members chosen every second Year by the People of the several States." That is a crucial limitation on the power of the House to initiate laws for which we, the people, will have to pay.
Incidentally, it wasn't until the Seventeenth Amendment (in 1913) that the people reserved to themselves the power to elect Senators directly. And to this day, only 1/3 of the Senate can be removed by voters every 2 years.
Much that Trump does (including regarding tariffs) and the many discussions by SCOTUS and other commentators highlight the fact that more laws expressly restricting the president's powers are necessary and proper. That's the point of Article I commanding that Congress has the power and the duty to "make all Laws" that are "necessary and proper for carrying into Execution [not only Congress's enumerated] Powers, [but also] all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof," i.e., in the executive or judicial branches.
Love it......
"What should we do when the written law appears to require an unjust result, or when it fails to capture a moral truth we believe is urgent?"
I respectfully submit that it's a very dangerous thing to try to make law reflect "moral truth." The truth about "moral truth" is that it very often means nothing more than a mere opinion of some faction about what their idea of "God" wants. Our Constitution expressly stands against the proposition that "God" or "religion" should control our laws or have any monopoly on truth. So "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States" (Article VI) and no one has any power to make or enforce any "no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech" (Amendment I).
Instead, the purposes of our Constitution (governing all our laws) are "to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity." Those are the "fixed star[s] in our constitutional constellation," as Justice Jackson put it in West Virginia Bd. of Ed. v. Barnette in 1943.
In 1788, Madison in Federalist No. 53 had emphasized similar principles to explain to people why they should ratify the original Constitution (even without a bill or declaration of rights).
"Happily for mankind, liberty is not" unalterably "confined to any single point of time; but lies within extremes, which afford sufficient latitude for all the variations which may be required by the various situations and circumstances of civil society."
In significant part to emphasize the foregoing, “in America” we have “a Constitution established by the people” precisely to establish that it is “unalterable by the government” (our public servants). Indeed, one of the primary purposes of the Constitution was to establish “a government limited, as the federal government will be, by the authority of a paramount Constitution,” i.e., a “Constitution, paramount to the government,” as “security” for “the liberties of the people." The powers of our public servants are unalterable by our public servants. The liberties of the people cannot be unalterable by our public servants.
Some of the foregoing principles were subsequently stated more explicitly of the Ninth and Tenth Amendments regarding the rights retained by the people and powers reserved to the people.
The People expressly "delegated" only limited "powers" to "the United States by the Constitution" and expressly "prohibited by [our Constitution] to the States" certain "powers," in part, to emphasize that other powers "are reserved" to "the people." Moreover, "[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
In 1789, when James Madison proposed amendments that became our Bill of Rights (including the Ninth and Tenth Amendments), he highlighted more explicitly some of the overarching purposes of our Constitution, which govern the purpose and actions of all government in the U.S. Madison proposed:
"That there be prefixed to the constitution a declaration—
That all power is originally vested in, and consequently derived from the people.
That government is instituted, and ought to be exercised for the benefit of the people; which consists in the enjoyment of life and liberty, with the right of acquiring and using property, and generally of pursuing and obtaining happiness and safety.
That the people have an indubitable, unalienable, and indefeasible right to reform or change their government, whenever it be found adverse or inadequate to the purposes of its institution."
Every law we make part of our Constitution or under our Constitution should support the fixed stars in our constitutional constellation.