Philadelphia Reflections

Enforcing the Constitution: Civil Monetary Penalties (CMP)

Founding Fathers

The 1787 Constitution created three branches of government along with their defined powers but described no remedy for a branch overstepping its boundaries. Gradually, a system evolved for declaring some laws unconstitutional, one by one, clarifying individual issues along the way. By contrast, the founding fathers viewed the President as an agent of Congress, expecting Congress to devise controls if needed. George Washington had an intense distaste for monarchs, and eight years as Commander in Chief had exposed no taste for conflict with the Continental Congress. Unfortunately, this has proven to be unusual for Presidents, especially as popular sovereignty appears to expand the Presidential mandate. Moreover, Washington himself developed more friction with Congress during his two terms as President.

In retrospect, the main factor behind Presidential restlessness is the experience of misinterpreting the meaning of a broader electoral mandate, which can more properly be traced to hasty repair of the defects of the 1800 election process. Experience has shown that while ignoring rules invites anarchy, the impeachment of a President usually seems too drastic a remedy for unwelcome innovation while impeaching the whole Legislative Branch for failure to supervise in a general way, is incomprehensible. The President needs some sort of supervision. While the original intent was to have Congress do the supervising, the Supreme Court is now probably better suited for judging the issue of unconstitutional behavior, except for the awkwardness that the President appoints the Supreme Court. These are the simple ingredients of a solution, preferably unwritten and revolving around conferring special "standing" in special circumstances.

Chief Justice, John Marshall

At present, grievances tend to accumulate until someone acquires "standing" by being injured. At present it is generally true a grievance scarcely matters if no one is injured, but the exception is the lack of redress for injury to the Constitution, whereby everyone may be injured. Furthermore, actual experience with creeping boundary encroachment has mostly proved to be nuanced, rather than confrontational, gradual rather than abrupt. The descriptive example is that of a frog in a gradually heated pan of water, whereby the frog is cooked faster than he realizes he is in danger. Otherwise, the courts have evolved an unspecified balance which has proved remarkably serviceable.

It took thirty years for John MarshalI to formulate the general approach needed. In Marbury v. Madison , his first action after becoming Chief Justice, John Marshall suggested a writ of Mandamus (i.e. "We command...") from the Court might well be the first step in what he coyly described as only a hypothetical situation. Only lawyers were expected to recognize fully that If the President ignored the writ, then the grounds for impeachment might escalate, with the President forced into the role of flouting a decision of the Court. Regardless of how it stood on the original issue, the public would likely support a Court in performing its duty to make difficult decisions.

One way or another, the national issue would become one of whether the nation wished to continue with its Constitution; Marshall had only outlined the steps the process would probably take. At several points along the way, the Chief Justice would have a chance to back off. But Marshall's lifelong hatred of his cousin Thomas Jefferson was so well known there was little doubt he was serious. Knowing of his cousin's hatred for him, President Jefferson let the matter drop; subsequent Presidents followed his example. Generations of lawyers have studied this case and pondered its implications. The solution to the problem of extending it from unconstitutional laws to unconstitutional behavior, probably already exists in many minds.

Originally published: Thursday, May 29, 2014; most-recently modified: Sunday, July 21, 2019