If you’re a parent, you know that feeling you get when your child has been too quiet for too long.  At some point, something clicks in your mind, and you realize you have had several minutes of uninterrupted silence…  that’s not normal…  what’s wrong?  One day, a tired, young mom had this sensation.  Where was Johnny?  She hadn’t heard from him in…  well…  minutes.  She scrambled to his room and found him.  The young boy had been cutting out slips of paper, drawing a photo of his teddy bear in the center, and then coloring them green.  He then added a “1” to the corners of each of them.  As she entered the room, Johnny proudly exclaimed, “Mommy, I am making dollar bills!”  Johnny then realized he could also add zeros and turn his dollar bills into ten-dollar bills, or even hundred-dollar bills!  Might be a good time for mom to sneak in a quick nap! 

What is the Difference? 

According to the Bureau of Engraving and Printing, in Fiscal Year 2020, the United States government printed 1,574,400,000 one-dollar bills.  What is the difference between these notes, and the ones Little Johnny was manufacturing in his room?  Many of us might say, “Not much difference”, or some similar comment!  But seriously, what is the difference?  Why is a printed dollar from a government office different than one that proudly bears the portrait of Little Johnny’s dog?  The only difference I can think of (other than the crayon artwork on Johnny’s dollars being less detailed), is that Johnny’s dollars are not backed up with any authority that gives them value.  In fairness, we could probably make a very similar statement about the U.S. Government’s fiat dollars (so maybe the artwork is the biggest difference after all!) but at least the government dollar is legitimately the currency of the United States.  It is therefore recognized as “legal tender for all debts, public and private”.  So it is recognized as being “real money”.  Unfortunately for Johnny, his dollars do not have that privileged status.  Johnny’s dollars are his own creation, and do not carry the authority of the larger entity that gives them legitimacy. 

Proper Authority Makes the Difference

Maybe some think this is an article about economics and fiat currency.  Unfortunately, I am not smart enough or educated enough to write such an article!  Maybe someday!  No, this is not about currency, but it is about the legitimacy that Johnny’s dollars lacked – the backing from the higher authority, if you will, that gives it value.  In our society today, we are guilty of doing this same thing in other areas.  I am concerned today about laws.  What makes a legitimate law?  What makes a law binding on society vs something Johnny sketches out in his room?  The difference is whether or not it is backed up by proper authority.  I am afraid in our society today, we are losing sight of what it means to have (or lack) proper authority in several areas – but especially in the area of making law and what makes a law legitimate and binding. 

Constitutional Requirement – Must Come From Congress

There are a couple references in the Constitution that are significant when it comes to identifying requirements for legitimate law.  The first one is in Article 1, Section 1 of the Constitution – literally the first line after the Preamble.  It says, “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”  – U.S. Constitution, Article 1.  So we see the law must be passed by the entity with the proper authority to pass it.  In today’s United States, there are countless federal agencies that pass “laws”, but they are not part of Congress.  Constitutionally, all legitimate laws are passed by Congress because Congress is where “All legislative Powers” have been vested.  If there is a federal agency passing regulations that “hold the force of law”, then they may have a resemblance to laws, but they lack legitimacy because they were not properly passed by the entity with proper authority to pass them.  Indeed, they are like the slips of paper Johnny was creating up in his room.  Johnny’s papers had a semblance to real dollars, but they lacked legitimacy because they were not created by the organization with authority to create them.

Constitutional Requirement – Must be “in Pursuance” of the Legitimate Constitution

    “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof… shall be the supreme Law of the Land…”   

Article 6 of the U.S. Constitution

This is a very important statement.  It gives status of the “Supreme Law of the Land” but gives it only to the Constitution of the United States, and Legislation that has been made “in Pursuance thereof” (also treaties made under authority of the United States, but I left that part out for purposes of this article…).  What about laws passed through Congress, but that are unConstitutional?  Is that “Law” part of the “Supreme Law of the Land”?  Does it “hold the force of law”? 

If you have taken our classes, one of the resources we like to highlight is the 1828 Elementary Catechism on the Constitution of the United States.  It was made to teach Constitutional truths to children – a long time ago.  I love the question in that book that asks, “But if even the Congress itself should make a law which is contrary to the Constitution, must the people obey it?”  The answer given is a very simple, “No”.  This is an American concept that has been lost. 

Legitimate Powers of Congress

As we have discussed many times before, even the United States Congress has only been granted authority to legislate to accomplish its “Enumerated Powers”.  (See article “What are Enumerated Powers” to learn more about this).  If Congress is holding votes and “passing” laws that are not within its Constitutional authority to pass, then they are just like Little Johnny creating dollar bills in his room.  Those acts of Congress lack the authority to make them legitimate laws – just like Johnny’s dollars are not legitimate currency. 

Mistaken Beliefs

We Americans, however, seem to believe that Congress can pass anything, and if they pass it through Congress, then Americans are bound to follow it.  Thinking this way is similar to Johnny’s tired Mommy scooping up all Johnny’s homemade dollar bills and heading out to go grocery shopping with them.  When Roe vs. Wade was overturned due to the fact that there is no Constitutional “Right” to an abortion, President Biden’s first reaction was to have Congress “Codify it into law”.  What a ridiculous statement!  He speaks as if Congress does not have limits on its power and they can take unConstitutional things and pass them into “laws” and all will be well.  Mr. President, if it is not Constitutional, then Congress can’t pass it into law.  That’s kind of how this Constitutional Republic form of limited government thing works.  So if you are the grocery store clerk, don’t accept Little Johnny’s dollars as payment for the groceries.  Don’t pretend these “laws” are legitimate when they lack the proper authority from the Constitution. 

make sure it’s constitutional

As Americans, we have got to better understand what makes legitimate law.  We also have to hold our elected officials accountable.  When we hear our elected officials say that (for example) we should “Codify” unConstitutional ideas into “Law”, we need to remind them they are limited to those powers listed in the Constitution.   We have to stop pretending that Congress can open their box of crayons with Little Johnny and create whatever in the world they want to do.  The United States Constitution defines a limited government, and it grants legitimacy and status of “Supreme Law of the Land” to Laws passed in pursuance of our Constitution.  In order for the “laws” that result to be legitimate, they need to have proper authority under the Constitution.  Otherwise, they are no better than Little Johnny’s dollars.