A. Specific and Implied Powers

The Citizens delegate specific Powers to Government institutions through this Charter. No institution may exercise authority that is not explicitly or implicitly granted.

No agency or official may use implied powers to create programs or practices that are likely to suppress, discourage, or chill the free exercise of any Right listed in this Charter.

These statements restate the fact that government doesn’t exist on its own. This idea is so fundamental to this Charter that Article I, Section 1 began with it. Here, I’ve restated it after the long discussion about rights. This Charter is about the rights of the people. The more important point, though, is that it’s a way for the people to set up a government that protects their rights. It gives shape to a government that exists because people create it and delegate authority to it. The authority still belongs to the people. The government can’t exercise authority that the people haven’t given it.

Does that mean that every possible authority the government can exercise is explicitly laid out in the Charter? No. That would be foolish and doomed to failure. I have no crystal ball. I don’t know everything. No one can. There is authority that’s implied by the language of this Charter, but not spelled out explicitly. That isn’t new. It has always been the case, and, in a framework flexible enough to work in real life, it always will be the case. The phrase “…that is not explicitly or implicitly granted,” acknowledges implied authority. But it builds a fence around it. The government can’t just do whatever it wants.

“Well, that’s just great, but you haven’t told us how we know what’s implied.” I know critics will say that. I would probably say it if I weren’t the one writing this. So how can we know what’s implied and what isn’t? First, what is the purpose of the authority in question? Does it affirm and support the rights of the people, or does it limit them? Rights are paramount. If anyone tries to suggest that a power to restrict rights, even temporarily, is implied, they are mistaken. That is not the plain intent of this text. Second, is the implied authority necessary to support the explicit duties of the government? If not, there is a much higher burden to explain how it is implied in the Charter.

But who decides? The answer is simple. The courts do. There is an entire section of Article IV devoted to helping the courts understand how to interpret this Charter.[1]

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[1] See Article 4, Section 5.A.1 “Interpretational Precedence,” and Section 5.A.2 “Interpretational Rubric.”