The Rise & Decline of
Constitutional Government in America
by Thomas G. West and Douglas A. Jeffrey
A Publication of The Claremont Institute
This essay explains the principles of the American founding. It shows how those principles gave rise to constitutional government and a free society, and how freedom was extended to all Americans after the Civil War. It will also show how the Founders' principles were opposed by a new theory that arose in the Progressive Era; how that new theory finally came to dominate American politics in the 1960s; and how that theory has changed our government and our society, and threatens our liberty.
Implementing the Principles of the American Founding:
The United States Constitution
In theory, one might expect protection of rights, and consent, to go together. In practice, they can conflict. A well-ordered government must reconcile them. As we will see, this is not an easy thing. Human nature includes not only reason but also selfish passions and interests. People often follow the latter, and consent to the violation of the rights of others.
Why A New Constitution in 1787?
The situation in America in 1787, under the Articles of Confederation established after the Revolution, was this: every state governed itself through elected representatives, and a national Congress was elected by the people's representatives in the state legislatures. The Declaration's requirement of democracy was being met, but government was not protecting equal rights.
Rights were insecure for two reasons. First, in the area of foreign policy, the Confederation was ineffectual. For instance, Spain had closed the Mississippi River to U.S. shipping and refused to acknowledge U.S. boundaries. American ships had become vulnerable to foreign depredations. The protection of life and property-the first duty of government-was impossible without a stronger national government.
The second area of government failure was in domestic policy. The state governments were violating individual rights to property, and even to life and liberty. For example, state legislatures routinely overturned court decisions in order to give special treatment to individuals, passing ad hoc exceptions to enforcement of contracts. Some legislatures also sided with debtors against lenders by printing worthless currency and forcing businesses to accept it as legal tender. In the language of Madison in The Federalist 10, these legislatures had fallen under the sway of factions-groups of citizens, whether majority or minority, acting on passions or interests adverse to the rights of others and the common good.
To repeat: America had government by consent, but not government that secured equal rights. This was the challenge faced by the Framers of the Constitution. They had to bring the practice of American government into line with the principles of the Revolution.
They succeeded in this extremely difficult task, and their success can be attributed to six key elements.
There was an early tradition in the American colonies of written fundamental laws. This practice implied that there should be a law higher than the ordinary laws or statutes passed by the legislature. The first state constitutions were not like this. They were written by state legislatures, and they were generally changeable by a simple act of those legislatures. If a legislature wanted to do something the state constitution did not permit, it could simply change that constitution.
This was bad for many reasons. In short, however, it led to unlimited government. The theory of the American Revolution says that governments exist to secure rights. People delegate that job to government, and give it only certain powers. A constitution is a device to keep it from going beyond those powers. A constitution keeps the government within bounds.
The original state constitutions could not do this, because they could be changed by the state legislature at will. Objections to this practice began to arise as early as 1776, for instance in Massachusetts, where a special convention was chosen by the people to write a state constitution. This idea of holding extraordinary conventions made it clear that government was subordinated to a higher or supreme law. This idea was adopted by those who called the Constitutional Convention, which met in Philadelphia in 1787.
The idea of a written constitution embodies the two great themes of the Declaration: consent and protection of equal natural rights. The people's own law-the Constitution-governs the government even after the government is established. And the fact that it is a written document, changeable only in rare circumstances, reflects the conviction that government's duties are guided and limited by a permanent standard of natural right.
Rule of Law
In the understanding of the Founders, one important means to insure that government by consent truly protects the rights of all citizens is to require that government govern by the rule of law. As understood by the Founders, laws are rules that are general; they apply equally to all persons similarly situated. And this follows from the idea of equal natural rights: If the source of rights is nature, and if every man has an equal share in human nature, then every man possesses the same natural rights; and if the purpose of government is to protect rights, then it must offer equal protection to each and every citizen, which is accomplished through the rule of general laws that apply to and protect each person equally.
The rule of law also means that no one is above the law, not even those who make the law. If all men possess equal rights, then those who live under the laws must be allowed to participate in making those laws, and those who make the laws must live under the laws they make.
There are many things a government must do, however, that are not amenable to general rules. For example, the details of waging a war, or the choice of which crimes to prosecute first, are by their nature discretionary. In our system, they fall under the power of the executive. But in the ordinary direction that government gives to citizens and the limits that it sets on them, no less than the protection government offers them, it must do so by general rules that do not favor or disfavor particular individuals or classes.
Separation of Powers
Following earlier modern political theorists, the Framers understood government by law to include three distinct powers: making laws, enforcing laws, and judging particular violations of law. Placing all three powers in the same hands is, according to Madison in The Federalist 47, the very definition of tyranny, because there would be no external or internal checks on the power of government. Men are not perfect, whether they are in the government or out of it. No single authority can be trusted with all the powers of government to itself. Much as having a written Constitution would check or limit the power of the government from without, having distinct legislative, executive, and judicial powers of government would check or limit it from within.
In violation of this principle, the Articles of Confederation concentrated the powers of the federal government into the same hands, the Congress. Most of the state constitutions in effect did the same. They set up governments that enabled one branch (the legislative) to force the other branches (executive and judicial) to submit to its will. In his critique of the Virginia Constitution of 1776, Jefferson wrote, "All the powers of government, legislative, executive, and judiciary, result to the legislative body. The concentrating these in the same hands is precisely the definition of despotic government. It will be no alleviation that these powers will be exercised by a plurality of hands, and not by a single one. 173 despots would surely be as oppressive as one. . . . An elective despotism was not the government we fought for."
In addition to preventing tyranny, separation of powers is a positive means to help government do its job. The distinct powers of government entail different duties, requiring different virtues for good performance. The Framers of the Constitution gave each branch-legislative, executive, and judicial-a different mode of election, different sizes, different tasks, and different terms of office. In this way, the Framers aimed to give them the virtues and interests needed to secure rights democratically.
The virtue of the legislative branch is deliberation. Its members must think and reason together about what must be done. They must devise general policies or laws that will meet the needs of the country. Since laws require at least a majority of both houses of Congress for approval, their passage necessarily involves a consensus of a substantial number of people representing the diverse interests of far-flung constituencies. Hamilton explains why it is right for Congress to be a large body: "In the legislature, promptitude of decision is oftener an evil than a benefit. The differences of opinion, and the jarring of parties in that department of the government, though they may sometimes obstruct salutary plans, yet often promote deliberation and circumspection, and serve to check excesses in the majority."
The legislature was divided into two separate "Houses": the upper house, or Senate, and the lower house, or House of Representatives. This division was intended to force or incline the legislature to reconcile differences among interests by reaching a consensus based on reason, and to prevent the legislative body from becoming so powerful that it would usurp powers rightfully belonging to the other branches of government.
The Senate has fewer members with longer (six-year) terms. Each state, regardless of size, gets two members. Originally senators were appointed by state legislatures, not by popular vote, which helped to guarantee that the authority of state governments would not be invaded by the national government (see below, Federalism and Local Self-Government).
The House of Representatives has more members with shorter (two-year) terms, and its members are elected by popular vote. The number of representatives to the House that each state can send is proportionate to their population, larger states having more, and smaller states having fewer members.
The chief virtue required of the executive is energy. This active virtue complements the slower deliberative virtue of the legislature. The executive-enforcer and administrator of the laws, prosecutor of crimes, and commander of the armed forces-needs to be able to act decisively, forcefully, quickly, and in some cases secretly. These qualities, wrote Hamilton, "will generally characterize the proceedings of one man in a much more eminent degree than the proceedings of any greater number." So the executive power was lodged in a single individual with a term of four years. Such a unitary executive would naturally have the responsibility for everything that his subordinates in the administrative bureaucracy might do; having that responsibility, he must also have the power to supervise and direct those subordinates.
The virtue of the judiciary is judgment. Its job, as John Marshall once wrote, is "solely, to decide on the rights of individuals" in cases at law. A case is typically a dispute between two parties, one of whom claims to have suffered an injury for which the law provides restitution. For example, one party (the executive branch of the government, speaking for the people in the name of a law passed by Congress) alleges that the other (the accused) has counterfeited money. Counterfeiting is an injury to the public peace because it is in effect theft from those who accept the worthless currency. The prosecutor asks the court to find him guilty and assess the legal punishment. The Constitution made the courts independent of elections to ensure dispassionate and impartial judgment, so that judges would not be pressured by elected officials to reach their decisions in accord with popular whim or anger. The independent courts help to assure that when an individual is brought before the law, he is given a fair and impartial trial, free of political influence or pressure from powerful officials in the elected branches.
The "good behavior" term of office for federal judges-in effect, a lifetime appointment, barring any egregious violations of the law or other impeachable offenses-has often been misunderstood as an antidemocratic part of the Constitution. For the Founders, however, judges could be trusted to remain in office indefinitely because of their clearly subordinate role. Their job was to judge cases according to the law, meaning, under the direction of rules approved by the people's representatives. The Founders would have rejected a view often promoted in today's law schools, which claims that judges, who never have to stand for reelection, in effect have a lawmaking role coequal with the legislature.
Checks and Balances
To separate the powers of government on paper is one thing; to keep them separate in practice is another. Americans had learned this from their first state constitutions, just after the Revolution. They found that one branch, the legislature, tended to take over the powers the others. Why? At the time, the British king, and British royal governors, along with their administrative and judicial appointments, were the principal objects of Americans' fear and suspicion. So the state constitutions generally established weak executives and judiciaries and powerful legislatures. As a result, the legislative body in the state governments became not just predominant, as it must be in a free government, but all-powerful-"extending the sphere of its activity and drawing all power into its impetuous vortex," in Madison's memorable phrase in The Federalist 48. As noted above, violations of rights abounded.
To strengthen separation of powers and prevent legislative despotism, the Framers incorporated what Hamilton in The Federalist 9 called "legislative balances and checks" in the federal Constitution. One check was to forbid the elected legislature from tampering with the fundamental law, the Constitution, as we saw above. Another was to divide the Congress into two houses, with different constituencies, term lengths, sizes, and functions. This made it more difficult for the two parts of the legislature to act unjustly in concert. A third check was to give the President a limited veto power over congressional legislation (Congress may override a president's veto only if two-thirds of the members of each house approve), along with the responsibility to recommend laws to the legislature. These amounted to an executive share in legislation. A fourth was to create an independent judiciary capable of reviewing ordinary legislation in light of the written Constitution. This feature, later called "judicial review," means that when a legislature makes a law that violates the Constitution, the courts must refuse to enforce that law upon individuals who come before them.
Earlier theoretical treatments of separation of powers had looked to the British government as a model. But that government was popular or republican in only one of its three parts, the House of Commons. A hereditary aristocracy filled the House of Lords, and the executive was a hereditary monarch. This model ran counter to the natural rights theory, and so was rejected by the Framers. Rather, the Americans saw for the first time that separation of powers is most compatible with a republican form of government.
In America, the separate branches would keep each other in line constitutionally, but each would be based on the people at large, not on separate classes in society.
The Founders agreed that because the people are the ultimate source of all political power, government must be democratic, or "republican," in nature. They were confronted, however, with two problems. First, in a country as large as the United States, it is not feasible to have direct participation in governmental affairs. The people are too numerous and too dispersed to participate in the day-to-day affairs of government. Second, a more important problem was to combine self-government with good government. The Founders understood that the real political and constitutional challenge was to design a system of government that would prevent democracy or self-government from turning into mob rule, or tyranny of the majority, which was exactly what was happening in many of the states under the Articles of Confederation. Republican government, at its best, should filter the reason of the public from the irrational passions of the public, which are usually adverse to the rights of others.
The answer to both these problems was representation. Representation allows the people to have a voice in government by sending elected representatives to do their bidding, while avoiding the need of each and every citizen to vote on every issue considered by government. Perhaps more importantly, though, is that a system of representation fosters lawmaking by those in the community best qualified for such things. In the words of The Federalist 10, representation helps "to refine and enlarge the public views, by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice, will be least likely to sacrifice it to temporary or partial considerations."
Federalism and Local Self-Government
Another constitutional device to prevent tyranny by dividing power is federalism. The authority of the national government would be exercised only on matters of truly national scope, such as foreign policy and national security, general regulation of commerce, and other "great and national objects." The states, according to Madison in The Federalist 45, would have general authority over "all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the state."
As with separated powers, federalism has a second purpose apart from preventing tyranny. It makes government work better because, as Madison explains in The Federalist 10, "local and particular interests" differ from place to place, and so are not conducive to regulation by general rules or by a remote body like Congress. They are handled better by state and local governments, where the representatives are "acquainted with all their local circumstances and lesser interests." That allows "the great and aggregate interests," which are conducive to laws operating from the center, to be referred to the national government.
From the early colonial days on, the Americans had strong town governments, especially in New England. These towns, wrote John Adams, "are invested with certain powers and privileges, as, for example, to repair the great roads or highways, to support the poor, to choose [their local officials and] their representatives in the legislature. The consequences of these institutions have been that the inhabitants [have] acquired from their infancy the habit of discussing, of deliberating, and of judging of public affairs."
Alexis de Tocqueville made similar observations on the benefits of the American tradition of local self-government in the 1830s. "Local institutions are to liberty what primary schools are to science; they put it within the people's reach; they teach people to appreciate its peaceful enjoyment and accustom them to make use of it. Without local institutions a nation may give itself a free government, but it has not got the spirit of liberty." Local self-government fosters the kind of civic spiritedness and love of liberty that keeps individuals from becoming preoccupied with or enslaved by their private passions and interests.
In The Federalist 9, Alexander Hamilton said that the "science of politics" had "received much improvement" in modern times. That is what made possible, he said, a "free government" (government by consent) that is compatible with the "principles of civil liberty" (equal rights). Hamilton mentions separation of powers, legislative balances and checks, courts with judges holding their offices during good behavior, representation of the people through elected legislatures, and a large republic spread over an extensive territory. These devices enabled the Constitution to reconcile the Declaration's requirements of consent and the protection of equal rights.
Consent was insured by making each branch of government popular or representative. In each case, the members are appointed directly by the people (the House of Representatives) or indirectly by someone elected by the people (the Senate, president, and subordinate executive officials) for limited terms of office. The judiciary, appointed by the president, was made compatible with popular government by confining its role to applying laws approved by the popular branches. The Constitution promoted protection of rights by leaving scope for state and local self-government; by placing the three powers of the national government in separate hands; by checking the legislative branch; and by giving the members of each branch personal motives to support constitutionalism. Combined, these devices subordinate the government to the higher law of the Constitution and ultimately, through it, to the principles of the Revolution as articulated in the Declaration of Independence.