This chapter examines the Constitution’s allocation of war powers, arguing that the President’s commander-in-chief authority permits only defensive actions or congressionally authorized military engagements, not unilateral offensive actions. Congress holds extensive war-related powers, including declaring war, raising armies, and regulating the military, while the President’s role is limited to directing forces in existing wars or repelling sudden attacks. The chapter introduces the concept of “imperfect war” and analyzes early military conflicts. It critiques modern executive claims, used to justify the Obama and Trump administrations’ Libya and Syria bombings, that the President can initiate military actions short of “war” in the “national interest,” finding no textual basis for such authority. It argues that unilateral acts risking war, like bombing foreign forces, encroach on Congress’s war powers under the law of nations. Rejecting functionalist expansions of presidential power, the chapter advocates a formalist, originalist approach, emphasizing that the President is not above the law. Such a framework ensures a restrained presidency, preserving Congress’s primacy in war-making and maintaining the Constitution’s separation of powers.

This introduction outlines a comprehensive study of the U.S. Constitution’s structure, marking its 237th year as the oldest modern constitution. It aims to equip readers – from law students to everyday Americans – with tools to understand its framework of representation, separation of powers, checks and balances, federalism, and the Bill of Rights, addressing enduring questions like the legitimacy of secession, the scope of national powers, presidential authority in foreign affairs and war, judicial review’s origins, and Congress’s taxing and spending powers. The book challenges myths, such as the existence of a “general welfare clause,” and critiques both originalist and living constitutionalist views, arguing, for instance, that enumeration limited executive, not just national, power, and that functionalism fuels the imperial presidency. Organized into seven parts and eighteen chapters, the book explores the Constitution’s compound republic, the distribution of legislative, executive, and judicial powers, and federal-state dynamics. By engaging recent scholarship, it seeks to clarify the Constitution’s original design while advocating its continued relevance today.

This chapter turns back to the scope of national powers, and argues that the original meaning of the Commerce Clause limits Congress to regulating the exchange of goods across state lines, and critiques the Supreme Court’s modern, expansive interpretation of the clause. It demonstrates, however, that the national commerce power was understood to be exclusive, lending support to the modern dormant Commerce Clause doctrine that restricts states from interfering with interstate commerce and that many originalists have opposed. It argues that, as originally understood, States retain police powers to regulate the health, safety, morals, and welfare of their populations and can incidentally affect interstate commerce through police regulations, as long as they have a legitimate purpose and do not target interstate commerce. Congress, similarly, could incidentally affect the states’ police powers or private conduct beyond the enumeration of powers so long as it was genuinely exercising its power over interstate commerce, such as when it closed the channels of interstate commerce to goods produced with child labor. This formalist approach reveals a symmetry in the original distribution of power between Congress and the states.

This chapter examines the President’s constitutional role in overseeing law execution, arguing that the Executive Vesting Clause and Take Care Clause grant the President authority to supervise, but not personally execute, national laws. It posits that the President’s power includes appointing and removing principal officers without congressional interference, as affirmed in the "Decision of 1789" and in Myers v. United States (1926). It explores the Appointments Clause, links the removal and appointment powers, and offers a novel explanation for why the Constitutional Convention did not discuss the removal power. It also addresses inferior officers, whose removal may be vested in department heads with potential tenure protections, provided adequate control mechanisms exist. Along with the next chapter, however, this Chapter suggests that the President cannot necessarily direct principal officers in the exercise of their discretionary duties unless statutorily authorized. The chapter proposes a nuanced view: the President can demand information and remove officers but lacks a constitutional right to control their actions, distinguishing this original account of presidential power from other “unitary executive” and “persuader-in-chief” theories.

This chapter examines judicial supremacy, arguing that while judicial review is inherent in judicial power under a written constitution, the Supreme Court is not the final arbiter of constitutional meaning. Through an exploration of Lincoln’s response to Dred Scott (1857) in his debates with Stephen Douglas, it defends “departmentalism,” where each branch interprets the Constitution for itself in exercising its assigned functions, and rejects Douglas’s claim that the Court’s rulings are the supreme law. Lincoln maintained that court decisions bind parties to a case, but their holdings need not be treated as a “political rule,” at least not until the constitutional question is fully settled. The chapter then turns to "executive supremacy," and posits that ordinarily the President must faithfully execute laws despite any constitutional misgivings, with a narrow exceptions for laws that target exclusive executive prerogatives such as pardons or military command. This formalist approach, rooted in Founding-era practices, balances judicial review with coordinate branch authority, preventing judicial or executive supremacy and preserving the Constitution’s separation of powers.

This chapter examines Congress’s taxing and spending powers, arguing that the Constitution’s first clause in the enumeration of powers originally granted only a power to tax for national purposes, not an independent power to spend for the general welfare. Textual and historical evidence, including from the Articles of Confederation and Committee of Detail, supports this as the best reading, with spending permissible only under the Necessary and Proper Clause to further enumerated powers. The chapter critiques modern doctrine, which recognizes a broad spending power allowing Congress to influence state policies indirectly, as in South Dakota v. Dole, by attaching conditions to funds. It proposes a test distinguishing genuine spending (e.g., disaster relief) from coercive regulatory attempts (e.g., conditioning funds on state policy changes), which usurp state functions. This formalist approach, rooted in the Constitution’s federalist structure, seeks to limit Congress’s ability to undermine state autonomy through expansive spending, preserving the original balance of federal and state authority critical to the Constitution’s enduring success.

This chapter investigates the President’s role in overseeing the administrative state, focusing on the contentious issue of for-cause removal restrictions for independent agencies. It argues that while the recognition of “quasi-legislative” and “quasi-judicial” powers in Humphrey’s Executor v. United States (1935) is inconsistent with the Constitution’s tripartite power structure, Congress may still create agency independence through statutory discretion and bipartisan structures without violating the President’s executive power. The chapter proposes a formalist middle path: the President retains the constitutional power to remove principal officers but lacks a constitutional right to control their statutory duties directly, aligning with historical practices from the First Congress, several early presidential administrations, and statements from Daniel Webster and William Howard Taft. This distinction avoids both unchecked presidential control, which risks politicizing administration, and a “persuader-in-chief” model which lacks historical support and risks a parliamentary despotism.

This chapter examines the legislative veto, allowing Congress to override executive actions without bicameralism and presentment, tracing its rise amid broad twentieth-century delegations. Textually and structurally, the Constitution assigns distinct powers to each branch and specifies how each power can be exercised. INS v. Chadha (1983) rightly held that legislative vetoes are unconstitutional because, if such vetoes are legislative in nature, they do not satisfy bicameralism and presentment. If the veto were an executive or judicial act, it would be unconstitutional because Congress possesses neither executive nor judicial power. The chapter introduces the concept of “nonexclusive functions,” recognizing that some governmental actions, like agency rulemaking, can be achieved through legislative or executive power; others, like resolving claims against the government, can be resolved by any of the three branches exercising its respective power. Each branch must, however, exercise its power according to the constitutional requirements. Despite the unconstitutionality of legislative vetoes, the chapter advocates a constitutional amendment to permit such vetoes for regulatory actions, offering a practical solution to balance executive rulemaking with legislative authority and aligning with the Constitution’s original design.

This chapter examines the creation of the U.S. presidency under Article II, arguing that the Executive Vesting Clause grants a limited power to execute laws, not a broad reservoir of executive authority. Unlike Article I’s enumerated legislative powers, Article II’s vesting of “the executive Power” omits “herein granted,” prompting debates over its scope. The chapter explores the Constitutional Convention’s intent and influences like Locke and Blackstone and contends that Article II’s opening grant primarily assigns the President the duty to execute Congress’s laws, with other powers – such as the commander-in-chief power or treatymaking – explicitly enumerated. It critiques expansive views, like Theodore Roosevelt’s stewardship theory, as deviations from the original, formalist design, which sought an energetic executive while ensuring the presidency would not devolve into monarchy. The chapter clarifies that the “unitary executive” debate concerns the scope, not unity, of presidential power, emphasizing that the Constitution cabins executive authority so that such authority can be safely entrusted to a single chief magistrate.

This chapter examines the Supreme Court’s state-sovereignty cases, particularly those involving sovereign immunity and the anti-commandeering doctrine. It argues that the Necessary and Proper Clause provides a textual basis for limiting Congress’s power to abrogate these state attributes. It critiques the Supreme Court’s modern federalism cases, like Printz v. United States, for relying on nontextual grounds, asserting that sovereign immunity and anti-commandeering principles derive from the Constitution’s structure and history, which view these as significant sovereign attributes the power to abrogate which cannot be delegated by implication. The chapter examines National League of Cities and its reversal in Garcia, highlighting tensions in applying federal laws to state functions. It argues that forcing states to enforce federal law or submit to citizen suits risks recreating the Articles of Confederation’s enforcement problems, potentially requiring the use of force against noncompliant states – a power the Framers rejected. Drawing on historical practices and the law of nations, the chapter posits that such powers require explicit constitutional authorization, reinforcing federalism’s vertical separation of powers and preserving state autonomy within the Constitution’s original design.

This chapter introduces the U.S. Constitution by exploring its purposes, functions, and significance as a written document, contrasting it with Britain’s unwritten constitutional system. It argues that a written constitution limits governmental power, including legislative authority, unlike the British system of parliamentary supremacy. The chapter traces the American shift in the 1760s toward viewing constitutions as superior laws fixed by the people’s consent and enforceable against the legislature. It outlines the settlement functions of constitutions – establishing government structures, ensuring stability, and channeling disputes – emphasizing how written constitutions enhance these functions. The chapter further examines the ends of free government, balancing liberty and order through democratic self-governance and the protection of natural rights, as articulated in the Declaration of Independence and the Constitution’s preamble. It introduces the Constitution’s structural features – separation of powers, federalism, checks and balances – while addressing critiques of its alleged undemocratic nature and introducing the Founders’ intent to create republican remedies for the diseases most incident to republican government.