Review: The Constitution of the United States: Its Sources and Its Application

The Constitution of the United States: Its Sources and Its Application by Thomas James Norton
My rating: 4 of 5 stars

In this book, The Constitution of the United States is examined in granular detail with pieces as small as a fragment of sentence followed up by often essay-length analysis generally covering three things:

1) The context of 18th Century and earlier concerns from King-Parliament interactions that led to the concern addressed
2) Expression of the topic in American political life, such as court decisions, momentous events like the Dorr Rebellion, and legislation
3) Implementation in other constitutions inspired by this one, such as ones calling its union "dissoluble" in an attempt to avoid the perils of secessions.

My first feeling was that this 1967 printing of the 1922 work was a "God and guns" philosophy. However, in its entirety while I feel it expressed conservative ideals of its time, it does not echo the radicalism of the neo-cons and current adherents of the strong version of the unitary executive theory. Consider this review of the war powers as described:

...The important lesson to be learned here is that in the United States one man (or one coterie) cannot declare war. That can be done only by the two Houses of Congress (531 members), elected by the direct vote of the people. Action is not likely to be hurried or unjust.

"The genius and character of our institutions are peaceful," said the Supreme Court of the United States (1849), "and the power to declare war was not conferred upon Congress for the purposes of aggression or aggrandizement, but to enable the general government to vindicate by arms, if
it should become necessary, its own rights and the rights of its citizens."

More on limiting the powers of the presidency:

A celebrated case under this article arose respecting the estate left by the widow of General Robert E. Lee, the military chieftain of the Southern Confederacy in the Civil War, which had been sold under an act of Congress for collecting. taxes "in the insurrectionary districts" and upon one part of which military officers, acting under orders of the President, had, after seizing the estate, erected a military fort and upon another made Arlington Cemetery. In the trial court a jury, acting under definite instructions as to the law, returned a verdict that the sale for taxes had been illegal. The United States Government carried the case to the Supreme Court of the United States and that court said, in 1882: "It is not pretended, as the case now stands, that the President had any lawful authority to do this, or that the legislative body could give him any such authority except upon payment of just compensation. The defense stands here solely upon the absolute immunity from judicial inquiry of every one who asserts authority from the executive branch of the government, however clear it may be made that the executive possessed no such power. Not only no such power is given, but it is absolutely prohibited, both to the executive and the legislative, to deprive any one of life, liberty, or property without due process of law, or to take private property without just compensation. . . . No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity.... All the officers of the government, from the
highest to the lowest, are creatures of the law, and are bound to obey it. It is the only supreme power in our system of government, and every man who, by accepting office, participates
in its functions is only the more strongly bound to submit to that supremacy, and to observe the Limitations which it imposes upon the exercise of the authority which it gives."

Similarly, the analysis of the Second Amendment while in line with the other mentions of militia in the document sounds out of step with the NRA:

ARTICLE II

A well regulated Militia, being necessary to the security of a free State, the right of the people to
keep and bear arms shall not be infringed.
This means the arms necessary to a militia, and not
the dirks, pistols, and other deadly weapons used by the lawless. In the Declaration of Rights it was complained that kings had disarmed the people. Of course the colonists were by force of early circumstances bearers of arms. This prohibition upon the Nation means that it can never
interfere with the people who make the militia of the States, and that therefore the States will always have the means to check by physical force any usurpation of authority not given to the Nation by the Constitution.

One of the many interesting observations here is that the antebellum amendment signal a switch from controlling federal power to limiting state authority:

It has been pointed out that the first ten Amendments sprang from the fear of National power which many of the States possessed. Those Amendments were designed to stay the National hand. But the Civil War taught that the Nation may be in even greater peril from the States than they ever were from the Nation. And so, after more than seventy years, the people, by this Amendment and the two Amendments following, laid up0n the States restrictions which a few years before would have been impossible. The country had gone sixty-one years (1804-1865) without an Amendment.

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