Module 6
Constitutional Concepts and Federalism
A. Federalism
A federal system of government is one in which political authority is divided
between a general or national government and regional (or ‘‘state’’) governments. The
general government carries on the military and diplomatic functions of the country and
deals with many other matters of national concern. The state or regional governments
carry on the public activities that most directly affect the citizens, such as police and fire
protection. In a federal political structure, the state governments are not mere provincial
agencies of a central government. For under federalism, the state or regional governments
have their own constitutional powers that the general government must recognize and
respect. On the other hand, the state governments in a federal system have less
independence than do states that are members of a confederation or league.
The governmental system of the United States is the earliest example of
federalism in the modern sense of that word. Nowadays, when the word federalism is
used throughout the world, it means a system like that of the United States, with political
authority divided between two spheres of authority. The American federal system is an
extremely complex pattern of interrelated processes simultaneously at work, a blend of
independence and interdependence. Federalism may be defined as a system of
government in which there are two levels of authority, national and state, operating side
by side, with each level generally supreme within its sphere of power.
K. C. Wheare, a noted British authority on federalism, defines the federal
principle as a ‘‘method of dividing powers so that the general and regional governments
are each, within a sphere, coordinate and independent,’’ and further, ‘‘that each
government should be limited to its own sphere and, within that sphere, should be
independent of the other.’’ To this we should add that federalism requires a written
constitution. The reason is quite simple: there must be a fundamental law delineating the
two spheres of authority, lest neither sphere will know the limit of its powers. If the
central government acquires too much power, it may swallow up the weaker states,
creating a unitary form of government. If, on the other hand, the state governments
become too powerful, the union may be reduced to a league or confederation, or be
abolished altogether.
Now the Framers of America’s Constitution did not create a federal pattern of
politics because they had read about something of the sort in an old book. No, American
federalism resulted from circumstances in the United States in the year 1787 rather than
an abstract theory. True, many of the Framers saw that a weak confederation, under the
Articles, was an insufficient system of government. And they perceived that centralized
or unitary government (then the pattern in nearly all European states) had its grave faults.
But the primary reason why the Framers chose a federal system was that the federal
arrangement was just what the American people wanted, and needed, in a very practical
sense, in 1787. Federalism as a theory of government, in other words, emerged after the
Framers wrote the Constitution. One alternative to federalism was simply to continue the
arrangement established under the Articles of Confederation, and a good many
Americans might have been content enough to do so. But this feeble confederation had
major economic disadvantages and scarcely could defend itself against foreign enemies.
The other alternative to federalism was a unitary, or centralized, form of
government, with all real power concentrated in the nation’s capital. Turgot, Condorcet,
and other French political thinkers of the 1780s were surprised and almost indignant that
the Americans had not formed such a political structure when they won their
independence from Britain. But the American people, having thrown off the central
power of the Kingin-Parliament, were not disposed to establish some new central
authority to tell them what to do. Besides, the great majority of American citizens were
warmly attached to their State and local governments. They feared that consolidation
would diminish their local and personal freedoms.
What the Framers agreed upon, then, was a satisfactory compromise between the
people who desired a strong general government and the people who wanted to preserve
State and local powers of decision. Under the federal arrangement—something new in
human society, at least on so large a scale as in the United States—the several States
were still called ‘‘sovereign,’’ as if there were no higher political power above them. But
through the federal arrangement, there was created a general government with vastly
superior powers. The Constitution allocated some powers to the Federal government, and
guaranteed that all other political powers would be reserved to the States or to the people
in those States. This division of powers, or ‘‘dual sovereignty,’’ though hotly debated
during 1787–1788, was accepted by the States when they ratified the Constitution.
B. Powers Delegated and Denied to Congress
By these provisions, the Congress—that is, the Federal government— is
authorized to ‘‘lay and collect taxes, duties, imposts, and excises, to pay the debts and
provide for the common defense and general welfare of the United States; but all duties,
imposts and excises shall be uniform throughout the United States.’’ Thus the new
Constitution gave the National Government money-raising power that the government of
the Articles of Confederation never had enjoyed. Many other powers were delegated by
the States to Congress by the Constitution—powers that we now take for granted, but
which in 1787 made many, and perhaps most, Americans very uneasy. As John Quincy
Adams said in 1839, the Constitution ‘‘had been extorted from the grinding necessity of a
reluctant nation.’’ Independent of Britain for only a few years, the citizens of the new
Republic did not relish the notion of surrendering State sovereignty, even some of it, to a
national government. Indeed, even some villages and townships thought of themselves as
sovereign, free from any higher political authority. They resented the interference of even
State governments. So it is not surprising that the powers given to Congress by Article I
of the Constitution alarmed some of the men who had been foremost in the struggle
against British rule.
These great grants of power to the Congress had to be balanced by certain strong
restraints on federal authority if the people of the thirteen States were to be persuaded to
ratify the Constitution. So Section 9 of Article I sets definite limits on what Congress
may do. The first-listed restraint, which seems odd to us today, is that Congress might not
forbid the importation of slaves until 1808. This temporary provision is followed by
guarantees of ancient rights and privileges derived from the British common law and
constitution. The first of these is the privilege of habeas corpus, a Latin term meaning
‘‘you have the body.’’ A writ of habeas corpus is an order issued by a court to an
arresting officer, directing him to bring a prisoner before the court. If confinement was
improper, the judge will order his release. The writ of habeas corpus, one of the most
ancient liberties inherited from England, is wholly procedural in character and defines no
rights. But it offers persons charged with a crime one of their most important protections
against illegal arrest and confinement, and serves as an important check on the illegal
usurpation of power by the executive. The writ has been used in England and the United
States to test the legality of virtually any confinement, including detention by military
authorities. Under the Constitution, Congress may suspend this privilege in times of
rebellion or invasion. During the Civil War, President Lincoln suspended the writ without
Congressional authorization, and was much criticized for his action.
The first-listed restraint, which seems odd to us today, is that Congress might not
forbid the importation of slaves until 1808. This temporary provision is followed by
guarantees of ancient rights and privileges derived from the British common law and
constitution. The first of these is the privilege of habeas corpus, a Latin term meaning
‘‘you have the body.’’ A writ of habeas corpus is an order issued by a court to an
arresting officer, directing him to bring a prisoner before the court. If confinement was
improper, the judge will order his release. The writ of habeas corpus, one of the most
ancient liberties inherited from England, is wholly procedural in character and defines no
rights. But it offers persons charged with a crime one of their most important protections
against illegal arrest and confinement, and serves as an important check on the illegal
usurpation of power by the executive. The writ has been used in England and the United
States to test the legality of virtually any confinement, including detention by military
authorities. Under the Constitution, Congress may suspend this privilege in times of
rebellion or invasion. During the Civil War, President Lincoln suspended the writ without
Congressional authorization, and was much criticized for his action.
The second guarantee is protection against bills of attainder. This is a legislative
act designed to punish a particular individual without a jury trial. Congress can determine
what conduct shall be considered a federal crime, but no one can be punished until after a
jury trial. This guarantee is an important check on the illegal usurpation of power by the
legislature. The prohibition was originally adopted in England to outlaw the practice of
legislative punishment, whereby individuals could be condemned to death by a special
act of Parliament. Legislative acts inflicting lesser punishments are called bills of ‘‘pains
and penalties.’’ As interpreted by the Supreme Court, the prohibition against bills of
attainder extends to all legislative acts, ‘‘no matter what their form, that apply either to
named individuals or to easily ascertainable members of a group in such a way as to
inflict punishment on them without a judicial trial.’’
The third guarantee, which is also a check on the legislature inherited from
English law, is protection against ex post facto laws. These are retrospective or
retroactive laws which impose criminal penalties for acts that were not illegal when they
were performed. Over the years, the Supreme Court has interpreted the prohibition to
include any law which operates to the disadvantage of an individual accused of a crime
committed before the law was passed. This includes laws that change the punishment and
inflict a greater penalty than the one affixed to the crime when it was committed, and
laws that alter the rules of evidence so as to permit less or different evidence for a
conviction than was required at the time the crime was committed. The ex post facto
clause was apparently intended by the Framers to apply to retrospective laws devaluing
property rights, but very early in our history the Supreme Court held in Calder v. Bull
(1798) that the restriction applies only to criminal laws.
C. The Division of Powers
These provisions of Article I promptly produced certain beneficial and practical
effects. They gave the new general government essential powers that were sorely lacking
in the old Confederation government; and they curtailed certain powers formerly asserted
by the State governments that sometimes had endangered the Union itself. Still more
important, perhaps, in the long run, was Article I’s creation of an enduring federal design
of government. That federal system contrived in 1787 still is functioning in the United
States—even though the powers of the Federal government have since grown at the
expense of the State governments.
In effect, after 1788 the American nation would benefit from two coordinate
governments, each with its own legislative, executive, and judicial branches. The general
or Federal government would concern itself with matters of high national importance,
chiefly diplomacy, the common defense, international and interstate commerce, issuing
of money, management of the nation’s western territories, ensuring a republican form of
government in all States, and performing other public functions that no State could
undertake adequately in isolation.
The State governments—thirteen of them to begin with, but soon several more—
would carry on the administration of justice within their own boundaries, protecting
people and property, maintaining the courts of law that dealt with most litigation,
overseeing local governments, maintaining roads, transportation, and communications,
and in general protecting the health, safety, and welfare of their citizens through the
exercise of what is called ‘‘the state police powers.’’ Thus the State governments were in
many ways independent of the Federal government. Ordinarily the actions of the Federal
organization and the actions of the State governments would not conflict because they
operated on different levels of public policy. Nevertheless, a good many American
political leaders foresaw difficulties in the relationship between the national government
and the States.
Most enumerated powers are also called delegated powers because they originated
in the States and were delegated or assigned by the States to the national government. In
addition to enumerated powers, Congress also possesses under Article I, Section 8, by
means of the ‘‘Necessary and Proper’’ Clause, certain implied powers. Article I, Section
8, Clause 18 provides that Congress shall have, in addition to the preceding enumerated
powers, the power ‘‘to make all laws which shall be necessary and proper, for carrying
into execution the foregoing powers, and all other powers vested by this Constitution in
the Government of the United States, or in any Department or officer thereof.’’ Congress
was given, for example, the enumerated power to regulate commerce among the States.
Through the Necessary and Proper Clause, Congress therefore might regulate the
shipment of goods from one State to another, if it could be demonstrated that this was a
necessary and proper exercise of its power to regulate interstate commerce generally. The
Necessary and Proper Clause, it may thus be seen, expands the enumerated powers of
Congress, and for that reason is also referred to as the ‘‘elastic clause.’’
But the clause does not give Congress the implied power to make laws for any
purpose whatever—only for the purpose of executing its enumerated powers and ‘‘all
other powers vested by this Constitution in the Government of the United States or in any
department or officer thereof,’’ meaning the President and the Federal courts. Congress’
implied powers, therefore, are not limited to the execution of its own enumerated powers.
By virtue of this ‘‘all other powers’’ provision, Congress has the implied power to share
in the responsibilities of other departments. It is under the authority of this provision, for
example, that Congress passes laws to implement treaty obligations of the United States
and to organize the Federal judicial system. Accordingly, the Necessary and Proper
Clause confers important and far-reaching powers on Congress; and by giving Congress a
voice in the affairs of the other branches, it also plays a key role in the check and balance
system that will be examined later.
All other powers are commonly called reserved orresidual powers. These are the
unspecified powers that the people or the States did not delegate or surrender to Congress
or the general government, and reserved to themselves. This reservation of various
powers to the States was reaffirmed in the Tenth Amendment to the Constitution, which
provides that ‘‘The powers not delegated to the United States by the Constitution, nor
prohibited by it to the States, are reserved to the States respectively, or the people.’’ The
Tenth Amendment is a rule of interpretation not only for the Federal courts, but also for
Congress and the President. At one point in our history, the reserved powers were often
regarded as the exclusive powers of the States. As such, they served to limit the powers
of the Federal government. Article I, Section 8, for example, empowers Congress ‘‘to
regulate commerce among the several States,’’ suggesting, therefore, that local
commerce, wholly within a single State, could not be regulated by the Federal
government. The Supreme Court has rejected this interpretation, however, and the Tenth
Amendment is no longer interpreted by the courts as a limitation on Federal power.
Today, it usually makes no constitutional difference whether an act of Congress governs
an institution or activity otherwise reserved to the States. For this reason, federalism has
weakened over the years, and much power formerly controlled by the States has been
shifted to the central government. This reallocation of power is known as the
centralization or nationalization of power, a phenomenon that is praised by some and
criticized by others.
D. National and State Obligations
Lodging so much power in the Federal government was viewed with suspicion by
Samuel Adams of Massachusetts, by Patrick Henry of Virginia, and by many other
American leaders. James Madison endeavored to assure such doubters that in truth the
Constitution recognized and protected the sovereignty of the States in most matters.
Writing in Federalist No. 45, while the States were debating ratification of the
Constitution, Madison argued that the State governments would ‘‘enjoy an advantage’’
over the Federal government, commanding popular loyalty more than could Federal
officials at the national capital. A State’s power, Madison pointed out, ‘‘extends to all
objects which, in the ordinary course of affairs, concern the lives, liberties, and properties
of the people, and the internal order, improvements, and prosperity of the State.’’ History
has shown, however, that it is the Federal government, not the States, which dominates
the American political system.
Up to this point, we have discussed only the right of the Federal government to
govern the affairs of the nation, and the right of the States to govern their own affairs.
Our examination of federalism would be incomplete, however, if we failed to include a
discussion of their obligations. Under the Constitution, the Federal government incurs
certain obligations to the States; and the States in turn have obligations both to the
Federal government and to each other. Many of these obligations are contained in Article
IV of the Constitution.
This provision, sometimes known as ‘‘the federalism article,’’ requires the
national government to guarantee a republican form of government to every State, to
protect the States against invasion, and, upon request, to protect them against domestic
violence. The term ‘‘republican government’’ is not defined in the Constitution, but the
Framers meant a representative form of government, as distinguished from a direct
democracy or monarchy. This guarantee shows the high regard the Framers had for
representative government and their concern, almost a decade after the Revolution, that
the people might again wish to be governed by a monarch.
The Constitution of 1787 imposes no similar obligation on the States to establish
a written constitution or a bill of rights, or to protect civil liberties, except those specified
in Article I, Section 10. Federal involvement in civil liberties disputes between a State
and its citizens did not commence until the adoption of the Thirteenth, Fourteenth, and
Fifteenth Amendments (the ‘‘Reconstruction Amendments’’) after the Civil War. Even
then, the extent of Federal activity was limited primarily to protecting economic rights
and the rights of the newly freed slaves. Not until the mid-twentieth century did the
Federal government, principally through the courts, become embroiled in civil liberties
disputes between a State and its citizens involving such rights as freedom of speech and
religion. Ironically, the Supreme Court has never interpreted the meaning of ‘‘republican
government’’ and has taken the position that it is up to Congress to decide whether a
particular State government is ‘‘republican’’ in character. Nor has Congress offered a
definitive interpretation; and the Guarantee Clause, as it is known, is largely dormant.
The States’ obligations to the national government are found in a number of
constitutional provisions. Under Article I, Section 4, the States are obliged to hold
elections for Senators and Representatives, and to prescribe the time, places, and manner
for such elections. Congress can alter such regulations, however, except as to the places
of choosing Senators. Article II, Section 1, which confers the executive power, requires
the States to participate in the election of the President. The States are required to select
presidential electors, but are free to choose them in any manner the State legislature sees
fit. In the early history of the United States, electors were sometimes elected by the
legislatures, by the voters in certain districts, by the voters in the entire State, or by a
combination of these methods. Today, however, all presidential electors are elected by
the voters on a statewide ticket. These electors cast their ballots in the States; the ballots
are then transmitted to Congress, where they are counted.
Obligations that the States have to each other, also specified in Article IV, are
numerous, however. Section 1, applying especially to State court decisions, contains the
Full Faith and Credit Clause. This provision requires each State to honor and enforce the
Court judgments of other States. The requirement is not absolute, however, and under
certain conditions, notably in cases involving divorce, a State can refuse to give full faith
and credit to another State’s court decree.
Under Section 2 of Article IV, the States are prohibited under certain
circumstances from discriminating against out-of-state citizens. Although as a general
rule they must extend the same privileges and immunities to other citizens that they
extend to their own, this provision has been interpreted to mean that the States are not
required to give them special privileges, particularly regarding the use and enjoyment of
State property. Thus a State is free under this clause to charge out-of-state residents a
higher fee than that paid by State residents for fishing and hunting licenses, or for tuition
at a State university. On the other hand, a State is prohibited from denying out-of-state
citizens access to its courts. Section 2 of Article IV also provides for the extradition or
return of fugitives. If a person commits a crime in one State and is caught in another, the
State from which he fled may demand from the governor of the State which holds the
fugitive that he be returned. In nearly all cases, escaped prisoners and fugitives charged
with a crime are returned, but there is no judicial method of compelling extradition. State
governors have on occasion refused to extradite on the ground that the fugitive might not
receive a fair trial or has been rehabilitated. The other clause in Section 2 calling for the
return of fugitive slaves was nullified by the Thirteenth Amendment, which abolished
slavery.
E. The Role of the States in the Amendment Process
This brings us finally to Article V, which prescribes the method for amending the
Constitution. Here the States play a crucial role because no formal change of the
Constitution is possible without their assent. The States have the right under Article V to
initiate amendments and approve their adoption. An amendment can be proposed by a
two-thirds vote of both houses of Congress or by a national convention called by
Congress at the request of the legislatures of two-thirds of the States. Every amendment
added thus far to the Constitution, however, was proposed by Congress. The Constitution
asserts that, in the event the States call for a convention, Congress ‘‘shall’’ do so. But
there is no way to force Congress to act, and it would seem in this instance—as in many
others—that the Framers relied upon the good faith of Congress for the observance of this
requirement.
From the foregoing discussion, it may be seen that the States occupy a
commanding position respecting the amendment process. They have the final say on
whether the Constitution shall be amended. In this respect, they exercise sovereignty over
the nation. This not only affords them an opportunity to protect their interests, but also
serves as an ultimate check on the powers of the Federal government. Some amendments,
in fact, have nullified decisions of the Supreme Court. For these reasons Article V of the
Constitution is regarded as the arch of federalism—the provision that strengthens the
States and protects them from being swallowed up by the Federal government. The
American republic is a democratic republic because it is based on government by the
people. But the people govern through their States, not en masse. In this sense they share
sovereignty with the States. The American republic is therefore both a democratic
republic and a federal republic.
F. The Federalism Factor
Upon close examination, it will be seen that the entire Constitution is actually
honeycombed with provisions designed to protect the residual sovereignty and interests
of the States and to give them influence in the decision-making process at the national
level. To measure the federalism factor, it is necessary not only to analyze the powers
specifically granted and denied to the national government, but to be mindful of those
that are by implication reserved to the States—to ‘‘read between the lines,’’ as the saying
goes.
Article III of the Constitution defines the judicial power of the United States,
which extends to nine classes of cases and controversies under Section 2 of that Article.
Those classes of cases that are not specified are, by implication, left for resolution by the
State tribunals. Section 2, for example, states that the judicial power shall extend to
controversies between citizens of different States, but it does not declare that it shall also
extend to controversies between citizens of the same State, except in those instances
where they are claiming lands under grants of different States. Thus if two citizens of
Utah have a contract dispute, it is clear from Article III of the Constitution that the
Federal courts have no authority to settle the controversy because the judicial power does
not extend to controversies between citizens of the same State in cases involving
contracts. As a general rule, then, private disputes between citizens of the same State are
settled in the State courts, even though the Constitution is silent on this question.
Conceivably, if not in actuality, Congress can overshadow or circumvent the
reserved powers of the States through its delegated and implied powers. It may thus be
seen that if carried to extreme a broad interpretation of Congress’s delegated powers
could result in the virtual annihilation of the reserved powers of the States. Where the line
separating Federal and State power should be drawn has been a source of constitutional
controversy since the earliest days of the American Republic. This is because the powers
of the Federal government are not spelled out in every particular and the powers of the
States are not spelled out at all. For guidance in interpreting the constitutionality of
Federal laws, members of the Supreme Court have understandably turned from time to
time to the debates of the Federal and State ratifying conventions of 1787–1788, the
essays in The Federalist, and other original sources in order to gain a better understanding
of the Framers’ intentions. Although most provisions of the Constitution are clear and
precise, and may be interpreted from the text itself, the nebulous, unwritten reserved
powers of the States constitute a gray area of constitutional law that has always been a
source of disagreement and debate in American law and politics.
The manner in which the President shall be elected is stipulated in Section 2 of
Article II. It provides that each State shall decide for itself how it shall choose electors,
and that it is entitled to a number of electors that is equal to the number of
Representatives and Senators it sends to Congress. The electors of each State then meet
in their respective States to name two candidates for the presidency, one of whom must
be from a different State. Then, when all of the nominations from all of the States have
been tallied, the candidate with a majority of the electoral votes is declared President and
the runner-up is chosen Vice-President. In the case of a tie, the House of Representatives
elects one of the two candidates as President; and in case no candidate has a majority,
then the House of Representatives shall select the President from a list of the five
candidates who have received the highest number of votes. If the House is called upon to
elect the President, the votes are taken not by the individual, but by the States, with each
State receiving one vote.
The Electoral College itself, surviving the Twelfth Amendment, has endured to
the present day, and the President must be chosen by the vote of each State, rather than
by a national popular vote. This means that each State continues to choose a number of
electors equivalent to the number of U.S. Senators and Representatives that that particular
State sends to Congress. Usually, though not in all presidential elections, the national
popular vote for candidates and the vote of the Electoral College would have the same
result; but it remains theoretically possible, under peculiar circumstances, for a candidate
to be chosen President by receiving a majority of Electoral College votes though a
minority of the popular vote.
Why so elaborate a scheme for choosing the President? Because the Framers
desired to secure the independence of the President from both the Congress and the fickle
mass of citizens. They wished to select for the presidency the ablest leader in the country
—an individual who would not need to be subservient to the congressional majority in
order to be elected, and at the same time would not need to be a demagogue, making
extravagant promises to the voters in every State in order to get elected. The way to
secure such an admirable President, they thought, was to have him chosen neither by
Congress nor directly by the voters of the several States, but to select a few able and
honest men in every State, make them electors, and have this small body of politically
prudent people (the Electoral College) choose the best possible chief executive for the
United States.
From time to time, some members of Congress have argued that the Electoral
College is outdated and should be abolished. Proposed amendments to the Constitution
calling for the direct election of the President have repeatedly been rejected, however,
and the Electoral College still enjoys wide support. Defenders of the Electoral College
contend, in particular, that the present system strengthens federalism by making the
States the crucial political units in the selection of the President. The direct-election
proposals would change this by scuttling the nomination conventions that give State and
local party leaders great influence in the nomination process, and by making State lines
irrelevant in the general election. This in turn would encourage presidential candidates to
ignore a broad cross-section of the country and the interests of States with small
populations, and to direct their appeal to large industrial areas of the country—an
invitation, the Electoral College defenders argue, to majority tyranny and a plebiscitary
presidency unrestrained by the two-party system. Such arguments have been sufficiently
persuasive to defeat the advocates of change, and the present consensus seems to be that
the present system, though imperfect, is preferable to the proposed alternatives.
Perhaps the most important point to be remembered, as the foregoing discussion
of federalism illustrates, is that there is more to the Constitution than meets the eye. A
reading of the text and wording of the document is merely the first step toward a
thorough understanding of its meaning and purpose. This is especially true when we stop
to consider the influence of the unwritten and often obscure federalism ingredient of the
Constitution. But, as we shall presently see, it is also true of other ‘‘silences of the
Constitution,’’ such as separation of powers and rule of law. It is impossible to
understand the Constitution without first understanding the principles upon which it is
built.
G. The Advantages of Federalism
Federalism enables States or peoples who differ a good deal from one another or
have different backgrounds to join together for common benefits, without some of the
States or groups being required to obey unquestioningly whatever the largest State or
group orders. In this sense, federalism protects minority rights—the rights of
communities or whole regions to maintain their customs, their diversity and individuality,
their self-rule. It was so with the Federal union of 1787–1788: South Carolina was not
required by the Constitution to model itself on Massachusetts, and in turn Massachusetts
did not have to adopt the ways of South Carolina. Yet those two very different political
communities found it possible to cooperate through the federal republic of the United
States on many matters, most of the time, for the following sixty-four years, without
resorting to force. Federalism, then, is associated with ‘‘States’ Rights’’ and is regarded
as an important means for the preservation of local selfgovernment.
Federalism provides that States or regions can manage their own affairs, rather
than being directed by a central autocracy or bureaucracy. A federal structure is
particularly necessary to modern representative democracy, especially one so large as the
United States. For unless there are political units on a humane scale that are not too big
for citizens to understand or share in, ‘‘democracy’’ becomes a mere phrase. Genuine
democracy requires that a good many people should participate in public concerns and be
governed by representatives chosen from and accountable to the local community. People
enjoy a sense of personal safety and security when they are governed by representatives
drawn from their own community, who share their values, customs, and mores, and are
accessible for consultation, advice, and assistance. It is easier to control a native son,
living in the community, than a stranger residing in a distant city.
If the United States were a unitary system of government, with all decisions made
in Washington, it would be impossible for many Americans to take any part in public
affairs and it would be difficult for public officials to understand local needs or to be
restrained by the local population. The United States would then have, at best, what is
called plebiscitary democracy—that is, rule by a single man or a narrow clique of
administrators, endorsed perhaps by a national ballot at intervals, yet allowing the public
no share in decisions beyond the opportunity to vote ‘‘yes’’ or ‘‘no’’ against the
dominant regime. (And often, in such centralized systems, the voter is discouraged from
voting anything but ‘‘yes.’’) To put all this another way, a federal structure provides
means for representative democracy to operate in both regional (State) and national
affairs. For this reason, federalism is an important feature of political liberty.
Federalism makes it difficult for an unjust dictator or fanatical political party to
seize power nationally and rule the whole country arbitrarily, having first taken the
national capital (a process which has occurred repeatedly in centralized countries, among
them France most conspicuously). With a federal political structure, obedience to all
orders from a national capital is not automatic, and State or regional leaders can resist
political revolutions or coups d’e´tat through political means or perhaps through State
militia (as Thomas Jefferson thought Virginia’s State militia might have occasion to resist
the Federalist party in power at Washington). To gain dictatorial control over Germany in
the 1930s, Adolf Hitler had first to destroy the federal structure of the Weimar Republic.
Totalitarianism cannot succeed where federalism thrives.
Federalism allows States, regions, and localities to undertake reforms and
experiments in political, economic, and social concerns without involving the whole
country and all its resources in some project that, after all, may turn out unsatisfactorily.
If it is true that ‘‘variety is the spice of life,’’ surely a nation is interesting and lively
when it has some diversity and freedom of choice in its political methods. In America
today, one State can plan some particular educational reform, another State can take a
different approach to improving schools; and results can be compared and discussed. Or,
different projects of unemployment relief, or experiments in making tax assessment more
just, can be carried on in several States simultaneously and States can compete with one
another in healthy fashion. In a unitary political structure, no place exists for innovation
or experiment except the bureaucratic central administration of modern nation-states.
Commonly that central administration is complacent about its own policies.
Half a century later, the distinguished British statesman and legal scholar James
Bryce published The American Commonwealth (1888), a profound, comprehensive, and
sympathetic analysis of American institutions that ranks with Tocqueville’s work as one
of the great American political classics. Like Tocqueville, Lord Bryce was favorably
impressed by American federalism, notwithstanding his personal allegiance to the unitary
system of Great Britain. He found federalism particularly well adapted to American soil
because it united the States without extinguishing their governments and local traditions,
and also supplied ‘‘the best means of developing a new and vast country.’’ Moreover, he
thought that the American system stimulated interest in local affairs, encouraged
constructive experimentation in legislation and administration, and ‘‘relieved the national
legislature of a part of that large mass of functions which might otherwise prove too
heavy for it.’’ Echoing Tocqueville, Bryce equated federalism with freedom and
surmised that it had made a valuable contribution to the welfare of the American people
by preventing the rise of ‘‘despotic central government’’ in the United States.
The durability of American federalism, according to Lord Bryce, should also be
attributed to the fact that it tends to promote political stability. In framing a federal
system, the architects of the Constitution faced an eternal dilemma: how to balance power
between the central and state governments; or as Bryce put it colorfully in an
astronomical metaphor: how ‘‘to keep the centrifugal and centripetal forces in
equilibrium, so that neither the planet states shall fly off into space, nor the sun of the
central government draw them into its consuming fires.’’ The advantage of the
constitutional edifice built by the Framers is that it solved the problem by giving the
national government a direct authority over all citizens, irrespective of the State
governments, thereby safely leaving broad powers in the hands of State authorities. ‘‘And
by placing the Constitution above both the national and State governments,’’ observed
Bryce, ‘‘it has referred the arbitrament of disputes between them to an independent body
[i.e., the Supreme Court], charged with the interpretation of the Constitution, a body
which is to be deemed not so much a third authority in the government as a living voice
of the Constitution, the unfolder of the mind of the people whose will stands expressed in
that supreme instrument.’’
H. The Future of Federalism
The practical operation of the principles of federalism and of separation of powers
is diminished today from what most of the Framers desired. Because of the intense
jealousy among the States, the deep emotional attachment of the people to their local
communities and their States, and the popular belief that there could be no liberty without
State sovereignty, it was thought by many Federalists in 1787 that the greatest threat to
federalism was separatism, not consolidation. ‘‘It will always be far more easy for the
State governments to encroach upon the national authorities,’’ predicted Hamilton in
Federalist No. 17, ‘‘than for the national government to encroach upon the State
authorities.’’ History, of course, has proved Hamilton wrong, and the trend since the
early nineteenth century has been toward increased centralization, interrupted only by
secession and the establishment of the Confederate States of America in the Civil War
period from 1861 to 1865. Since the New Deal and the administration of President
Franklin Roosevelt in the 1930s, the pace of centralization has quickened, more and more
functions of government once reserved to the States have been assumed by Federal
authorities, and both the States and their political subdivisions have lost considerable
independence, power, and influence.
How and why federalism has declined is the subject of many studies. It may be
explained in large part by the transformation of the relationship between the national
government and the States that occurred in the 1930s, when Congress, under the
leadership of President Roosevelt, decided it was necessary, in response to the Great
Depression, to expand its commerce power to establish welfare and public work
programs, and to regulate agricultural production, the labor force, transportation, and
many other activities that had previously been under State control. The Supreme Court’s
new interpretation of Congress’s power to regulate commerce among the States allowed
the Federal government to gain control of virtually the entire commercial life of the
nation, including many aspects of intrastate commerce wholly within one State, and a
wide variety of other activities local in nature and only indirectly related to commerce,
such as wildlife protection, flood and watershed projects, mountain streams, housing,
even civil rights.
After 1937, the Supreme Court, in a series of landmark decisions reversing many
earlier cases, adopted the view that Congress was free to use its commerce power to
regulate any activity that, in one way or another, might ‘‘affect’’ commerce. The Tenth
Amendment, said the Court in United States v. Darby (1941), does not limit the
commerce power and ‘‘states but a truism that all is retained which has not been
surrendered.’’ In only one case between 1937 and 1995 did the court strike down a
Federal law under the commerce clause, and even that decision was subsequently
overruled. In Garcia v. San Antonio Metropolitan Transit Authority (1985), the Supreme
Court rejected the proposition that the Constitution places independent limits on
Congress’s commerce power, holding that participation by the States in the national
political process is the only protection against Federal encroachments on their reserved
powers. This may not be very reassuring to the States. Before the adoption of the
Seventeenth Amendment, members of the Senate were elected by the State legislatures.
Now they are elected directly by the people. The effect of this amendment has been to
weaken the influence of the States in the national political process.
Similarly, in Printz v. United States (1997) the Court struck down a provision of
the Brady Gun Control Act which forced local law enforcement officials to conduct
background checks on potential gun purchasers. Citing New York v. United States
(1992), which held that Congress cannot compel the States to enact or enforce a Federal
regulatory program, the Court asserted that Congress may not circumvent that prohibition
by enlisting State officials directly. ‘‘Our constitutional system of dual sovereignty,’’ said
the Court, ‘‘is fundamentally incompatible with conscripting state and local officials to
carry out federal programs.’’
In addition, Congress’s spending power under Article I, section 8 to ‘‘provide for
the general welfare’’ has had a substantial impact on the federal system. Federal spending
in the form of payments to individuals, such as old-age support under Social Security,
conditional grants to States (as with education and welfare), and direct financing of
Federal projects such as the Tennessee Valley Authority, has undermined local autonomy
by allowing Federal instead of locally elected officials to decide how money is to be
spent. In some respects this has effectively transformed State and local governments into
administrative units of the national government, contributing to the gradual erosion of the
State’s control over its own cities and other political subdivisions. The expansive use of
the spending power by Congress—especially the practice of conditioning eligibility for
Federal grants on compliance with regulations having little or no relationship to the
program being funded—has led to a major expansion of Federal power over State budget
priorities and, in many instances, over State laws and constitutions. Litigation about the
scope of the spending power has been rare, and in those instances where the Federal
Judiciary has addressed the issue, the judges have generally declined to impose any
constitutional limitations.
Some observers view this development favorably, arguing that much of it was
necessary because the States were either unable or unwilling to adapt to technological
advances requiring uniform regulation and control, or were indifferent and even hostile to
the demands of minorities, especially in the field of civil rights. Critics, on the other
hand, assert that centralization has produced bureaucratic inefficiency and waste, brought
on deficit spending, undermined independence and self-government, contributed to the
problem of political apathy, and encouraged judicial excesses that deny citizens a say in
their own affairs. Perhaps the most frequently voiced complaint is the allegation that the
Federal courts have excluded the people and their elected representatives from the
decisionmaking process by dictating public policy on the scope and meaning of
individual liberty, particularly as it relates to the apprehension and treatment of criminal
offenders, control and supervision of neighborhoods and schools, religion and the family,
abortion, pornography, and a wide assortment of other social concerns.
Because the Constitution does not precisely draw a line to indicate where national
power ends and State power begins, the issue of States’ Rights will, it seems, continue to
be a source of disagreement and debate in American public life. The difficulties
associated with delineating two vaguely defined, overlapping spheres of power in the
federal system are compounded by the fact that public figures are not always inclined to
support the principles of federalism when they conflict with a desired program or policy;
and by the tendency of the general public to favor or oppose particular policies without
stopping to consider their constitutional impact on federalism. For this reason, the
President, Congress, and the Courts, as well as the electorate, have not consistently
supported federal principles. ‘‘Men of principle,’’ with a consistent record on
constitutional matters, and men who are willing to take unpopular stands in defense of
federalism and the Constitution, are often unappreciated or misunderstood by the public.
This is unfortunate, but it surely holds true in any constitutional democracy.
I. The Separation of Powers
Since ancient times, statesmen and political thinkers have struggled with a
fundamental problem that is common to all civil societies: how to structure a government
that is powerful enough to govern but itself is sufficiently controlled so that it does not
become destructive of the values it was intended to promote. ‘‘In framing a government
which is to be administered by men over men,’’ observed Publius in Federalist No. 51,
‘‘the great difficulty lies in this: you must first enable the government to control the
governed; and in the next place oblige it to control itself. A dependence on the people is,
no doubt, the primary control of the government; but experience has taught mankind the
necessity of auxiliary precautions.’’
The republican principle, in other words, should serve as the main pillar of the
structure. A government based on consent, in which the people possess sufficient political
liberty to control those who exercise political power, provides a barrier to despotism.
Wise men that they were, the Framers understood, however, that we cannot rely solely
and exclusively upon the people to control government or to protect the values of liberty,
order, and justice. If we could, there would be no need for a constitution in the first place.
Men are capable of both good and evil. This is because human beings are imperfect
creatures, and it would be naive to think that all men are by nature good. ‘‘It may be a
reflection on human nature,’’ Publius agreed, ‘‘that such [auxiliary] devices should be
necessary to control the abuse of government. But what is government itself, but the
greatest of all reflections on human nature? If men were angels, no government would be
necessary. If angels were to govern men, neither external nor internal controls of
government would be necessary.’’ From Christian teaching, the Framers had learned,
then, that human nature is not to be trusted. Good laws and institutions are required to
keep men from one another’s throats.
The American achievement was to substitute a functionally divided system for the
‘‘mixed’’ system, replacing a class-based structure with one in which all the branches of
government drew their authority from the people. This was first achieved in the
revolutionary State constitutions adopted in 1776, that of Virginia being an example:
‘‘The legislature, executive and judiciary departments shall be separate and distinct, so
that neither exercise the powers properly belonging to the other.’’ These first State
constitutions also departed from the British model by requiring a complete separation of
personnel as well as function, that of Virginia again being representative: ‘‘nor shall any
person exercise the powers of more than one of them [branch] at the same time.’’
Working without any clear precedents or guidelines, and laboring under the
erroneous assumption that an almost pure separation of powers would achieve the desired
result of limited government, the framers of these first constitutions established powerful
legislative bodies but failed to provide a check and balance system. It soon became
apparent that this was a fatal omission. Throughout the country, the State legislatures
became an embarrassment to republican government, not infrequently interfering with the
operation of the courts, reducing governors to a condition of subservience, and violating
the rights of property. Under the Virginia Constitution of 1776, ‘‘All the powers of
government,’’ complained Thomas Jefferson, ‘‘legislative, executive, and judiciary,
result to the legislative body.’’
His friend and colleague James Madison spoke for virtually the entire Federal
Convention when he stated in Federalist No. 48: ‘‘a mere demarcation on parchment of
the constitutional limits of the several departments is not a sufficient guard against those
encroachments which lead to a tyrannical concentration of all the powers of government
in the same hands.’’ Accordingly, the Framers enthusiastically embraced the separation
of powers doctrine but incorporated a check and balance system into the machinery of
government. This, together with the distinctly American system of federalism, rendered
the Constitution truly unique. The credit for the checks and balances feature of the
Constitution probably goes to a group of astute Massachusetts lawyers, however, for it
was they, under the leadership of John Adams, who wrote the Massachusetts Constitution
of 1780—the first to introduce the check and balance concept that later became a part of
the United States Constitution.
The check and balance system is probably the most ingenious and carefully
crafted feature of the American Constitution. Like the principle of federalism, it
permeates the document. They arranged that there should be some overlap of functions
among the three major departments of government. In some ways, one department was
allowed to touch upon the usual affairs of a different department. Montesquieu had
written that no department should exercise ‘‘the whole power’’ of another department,
but to exercise some part of the power of another department was permissible. There
ought to be no insurmountable wall of separation shutting off executive and judicial
branches from the legislative in every respect. Thus in the final version of the
Constitution that was submitted for ratification, the President (executive branch) was
given a part in the legislative process, through his power of veto and his power to make
recommendations in ‘‘State of the Nation’’ addresses to the Congress. On the other hand,
the legislative branch, through the Senate, was given some power over the executive
branch, in that treaties and presidential appointments to major administrative posts and to
the judiciary must be confirmed by the Senate. Likewise, the judiciary was given some
executive power to manage its own internal affairs. By the power of judicial review, it
might also overturn acts of the legislature deemed unconstitutional.
They improved upon the State constitutions by arranging that the members of the
three branches of government should be chosen in three different ways—so making the
executive and judicial branches more independent from the legislative. (In the early State
constitutions, usually the legislature had appointed and removed State executives and
judges.) Under the new Constitution of the United States, members of the House of
Representatives would be elected by the voters of geographic districts within the several
States; Senators would be elected by their State legislatures; and Presidents would be
elected by a College of Electors. Federal judges would be appointed by the President,
subject to confirmation by the Senate, and would be appointed for life. By separating
personnel as well as functions, the authors of the Constitution sought to prevent the
legislative branch from lording over a subordinate executive and a subordinate judiciary.
The Framers provided each department with constitutional means for resisting
attempts at domination by the other departments. The President’s ‘‘qualified veto’’ over
enactments of the Congress was a protection for the executive branch. Life tenure for
judges was a protection for the judicial branch. As an additional device for strengthening
the executive and judiciary against the legislature, the Framers arranged that members of
the House and Senate would be chosen by different means, and in part at different times.
The Congress, for its share, was given the constitutional power of impeaching the
executive or members of the judiciary—a grim power inherited from the British
Constitution.
It may thus be seen that an elaborate system of checks and balances was woven
into the Constitution. These checks and balances were intended to prevent any person or
organ of government from interfering with constitutional freedoms or with the lawful
functioning of another organ of government. They also help to maintain the separation of
powers by arming each branch with a defensive power to resist encroachments from
another branch. These built-in checks upon the power of any person or office in the
Federal government are still functioning two centuries after their invention.
Congress has power to impeach and remove the President for high crimes and
misdemeanors (Article II, Section 4). Congress may override a presidential veto by a
two-thirds majority (Article I, section 7). Congress can assure civilian control of the
military through its power to appropriate—or withhold—funds to support military and
naval forces, to make regulations for those forces, to call forth the militia of the States, to
suppress insurrections and to repel invasions, and to declare war (Article I, Section 8).
Congress has an inherent power to investigate actions of the executive branch concerning
proper execution of the laws and proper expenditure of funds (Article I, Section 8).
Congress is empowered to appropriate the funds for operation of the executive branch
(Article I, Section 8). The Senate has power to approve, amend, or reject treaties. It may
also attach reservations to the treaty, which may not alter the content but may qualify or
limit the obligations assumed by the United States under the agreement (Article II,
Section 2).
Congress has power to impeach and remove Federal judges for adequate cause
(Article I, Section 3; Article II, Section 4; Article III, Section 1). Congress has power to
appropriate funds for operation of the judicial branch (Article I, Section 8). Congress has
power to determine the number of judges and the size of Federal courts (Article III,
Section 1). Congress has power to regulate the original jurisdiction of inferior Federal
courts and the appellate jurisdiction of all Federal courts (Article III, Sections 1 and 22).
The President has power to appoint Federal judges (Article II, Section 2).
Congress is authorized to assemble annually, and the President may not dissolve a
Congress (Article I, Section 4). Both houses of Congress have the power to judge the
elections, returns, and qualifications of their own members (Article I, Section 5). Only
the Congress can determine the rules for its proceedings, punish its members for
disorderly behavior, and expel its members (Article I, Section 5). Members of Congress
are privileged from arrest while Congress is in session, except for cases of treason,
felony, and breach of the peace (Article I, Section 6).
The President is chosen by electors, and is not appointed by the Congress (Article
II, Section 1). Congress may not raise or lower the President’s salary while he is in office
(Article II, Section 1). Only the President may conduct diplomacy with foreign
governments and extend diplomatic recognition (Article II, Section 3). The President is
given unrestricted power to remove all executive officers and Senate approval is not
required (an unspecified power derived from Article II, Section 3).
Since 1789, when the First Congress convened, the executive branch has tended
to grow in power, even during the administration of Presidents who professed to respect
the legislative branch. The judiciary, ever since John Marshall became Chief Justice in
1801, has tended to be much more assertive of its powers than the Framers had expected.
(Alexander Hamilton, writing in The Federalist, assured his readers that the Supreme
Court, ‘‘the weakest of the three branches,’’ could take ‘‘no active resolution
whatever.’’) Today, Federal courts examine and review Congressional enactments and
presidential orders far more frequently than the Framers imagined.
Over the years, certain misconceptions about the American doctrine of separation
of powers, and criticisms of the system, have surfaced from time to time in writings on
American politics. The assumption is often made, for example, that the Constitution
established three ‘‘equal’’ or three ‘‘coordinate’’ branches of government. Such is not the
case. As Madison observed in Federalist No. 51, ‘‘it is not possible to give to each
department an equal power of self-defense. In republican government, the legislative
authority necessarily predominates.’’ Experience under the State constitutions had
shown, he explained in Federalist No. 48, that ‘‘The legislative department is everywhere
extending the sphere of its activity, and drawing all power into its impetuous vortex.’’
In theory, at least, Congress has the constitutional authority to lord over the other
branches. An angry House and Senate might, if it wished, reduce the entire Federal
Judiciary down to one Supreme Court, with only the Chief Justice, exercising only
limited, original jurisdiction. A legislative assault on the executive branch would be
equally devastating, leaving the President with no cabinet, no departments, no army or
navy, and no funds. All of this is possible because the other branches rely almost
exclusively on Congressional statutes for their operation.
There are numerous examples of legislative encroachment, as witnessed, for
example, by the impeachment of President Andrew Johnson. There have also been
periods of legislative ascendancy, which Woodrow Wilson complained of in his book,
Congressional Government. Throughout most of American history, however, Congress
has probably exercised more restraint than the Framers anticipated. That an unruly
Congress always has the potential of tyrannizing over other branches is a factor that
should always be kept in mind, however; and it should also be emphasized that the main
reason for the separation of powers and checks and balances system, as the Framers saw
the problem, was to protect the executive and judicial branches against the legislative.
This is not to say that the Framers overlooked the possibility that the President or the
Supreme Court might also abuse their powers, but merely that in 1787 they seemed to
lack the inclination and capacity.
The complex task of directing the affairs of a modern industrial state, with a large
and growing population placing increased demands on government, has had a negative
effect on separation of powers and the rule of law. So too has America’s rise to power as
the defender of the free world, which has changed the role of the President and what is
expected of the office, and greatly enlarged his war and diplomatic powers. Of the many
factors which have contributed to the decline of separation of powers, however, the
massive delegation of legislative powers by Congress to executive agencies and
independent regulatory commissions has probably done the most to change the
relationship among the branches and the law-making function of government.
By delegation of powers is meant the transfer of the decision-making authority
from one branch of the government to another. Independent regulatory commissions,
such as the Federal Trade Commission, the Federal Communications Commission, or the
Securities and Exchange Commission, are quasi-legislative, quasi-executive, and quasi-
judicial bodies that lie outside the separation of powers system. The first such
commission was the Interstate Commerce Commission, established in 1886; but most are
primarily a phenomenon of the twentieth century. Many were created during the New
Deal. They are independent in the sense that they are largely free of executive control.
The President may appoint the members, but that is about the extent of his influence; and
Congress may even prescribe and restrict the causes for which the President may remove
them from office. These commissions are quasi-legislative in the sense that Congress has
given them a portion of its own law-making authority so they can regulate certain
activities, largely commercial in nature, such as the stock market, the licensing of radio
and television broadcasting, and various trade practices. Regulations adopted by the
commissions are treated as laws and enforced by the commissions. Independent
regulatory commissions exercise a quasi-judicial function in the sense that affected
parties may challenge their rulings in administrative proceedings, before administrative
law judges, who conduct hearings much like a court of law. Administrative decisions are
subject to review by the regular courts.
J. The Rule of Law
The America of 1787 inherited from medieval England the concept of rule of law,
sometimes expressed as ‘‘a government of laws, not of men.’’ One may trace the rise of
this principle in English history all the way back to the signing of Magna Charta in the
year 1215, when King John found it necessary to guarantee his obedience to English
laws. For that matter, medieval English writers on law derived their understanding of the
rule of law from ancient Roman jurisprudence.
‘‘The king himself ought not to be under man but under God, and under the Law,
because the Law makes the king. Therefore let the king render back to the Law what the
Law gives him, namely, dominion and power; for there is no king where will, and not
Law, wields dominion.’’ So wrote Henry de Bracton, ‘‘the father of English law,’’ about
the year 1260, during the reign of Henry III. This teaching that law is superior to human
rulers has run consistently through English politics and jurisprudence all the way down
the centuries. It was rather belligerently asserted from time to time by the English
colonies in North America. This doctrine that no man is above the law applied not only to
kings but also to legislative bodies and judges. Sir Edward Coke, we saw earlier, fiercely
resisted not only attempts by King James I to interpret the law for himself but also Acts
of Parliament that contravened the common law. Citing Bracton as an authority, he
asserted that ‘‘the king must not be under any man, but under God and the law.’’ In Dr.
Bonham’s Case (1610), Coke laid down the principle of judicial review, claiming that
judges had a right, when interpreting Acts of Parliament, to declare them null and void if
they conflicted with established principles of law and justice. ‘‘And it appears in our
books,’’ said Coke, ‘‘that in many cases, the common law will control Acts of
Parliament, and sometimes adjudge them to be utterly void; for when an Act of
Parliament is against common right and reason, or repugnant, or impossible to be
performed, the common law will control it, and adjudge such an Act to be void.’’
Rule of law, then, is not rule of the law, but a doctrine concerning what the law
ought to be—a set of standards, in other words, to which the laws should conform.
Merely because a tyrant refers to his commands and arbitrary rulings as ‘‘laws’’ does not
make them so. The test is not what the rule is called, but whether the rule is general,
known, and certain; and also whether it is prospective (applying to future conduct) and is
applied equally. These are the essential attributes of good laws—laws that restrain but do
not coerce, and give each individual sufficient room to be a thinking and valuing person,
and to carry out his own plans and designs. This does not mean that the individual is free
to do as he pleases; for liberty is not license. As the Framers knew well, absolute freedom
would be the end of freedom, making it impossible for society to be orderly, safe from
crime, secure from foreign attack, and effectively responsive to the physical, material,
and spiritual needs of its members. Under God, said the exponents of the rule of law, the
law governs us; it is not by mere men that we ought to be governed; we can appeal from
the whims and vagaries of human rulers to the unchanging law.
By and large, America has enjoyed rule of law, not of men. No President of the
United States has ever tried to make himself dictator or to extend his term of office
unlawfully. Martial law—that is, a suspension of the law and the administration of justice
by military authorities in times of war, rebellion, and disorder—has never been declared
nationwide. No party or faction has ever seized control of the Federal government by
force or violence. The Constitution of the United States has never been suspended or
successfully defied on a large scale. Thus the rule of law has usually governed the
country since 1787—a record true of very few other countries of the world.
K. The Basic Principles of the American Constitution
Federalism, separation of powers, and rule of law are the heart of the American
Constitution. But there are other fundamental principles of the system as well, all of
which contribute significantly toward the achievement of liberty, order, and justice. First,
the Constitution is based on the belief that the only legitimate constitution is that which
originates with, and is controlled by, the people. Thus a constitution is more than a body
of substantive rules and principles. As Thomas Paine wrote, ‘‘A constitution is not the act
of a government, but of a people constituting a government, and a government without a
constitution is power without right.’’ This principle is declared in the Preamble of the
Constitution, which proclaims that the Constitution is ordained and established not by the
government, but by ‘‘We the People.’’
Second, the United States Constitution subscribes to the view that the government
must in all respects be politically responsible both to the States and to the governed. This
is achieved through the election and impeachment process, with only the members of the
House of Representatives being directly accountable to the electorate. Though not
directly represented, the States exercise some influence by virtue of the Electoral College,
control of the franchise, and the amendment process. Prior to the adoption of the
Seventeenth Amendment in 1913, the States were also able to protect their interests in
some instances by virtue of the fact that members of the Senate were indirectly elected by
State legislatures rather than directly by the people.
Third, the Constitution rested on the proposition that all constitutional
government is by definition limited government. A constitution is a legal, not just a
political limitation on government; it is considered by many the antithesis of arbitrary
rule; its opposite is despotic government, the government of will instead of law.
Parliamentary supremacy, identifying all law with legislation, is thus hostile to the
American Constitution, which declares that the Constitution shall be the supreme law of
the land.
Fourth, the Constitution embraced the view that in order to achieve limited
government, the powers of government must be defined and distributed—that is, they
must be enumerated, separated, and divided. A unitary and centralized government, or a
government in which all the functions or functionaries were concentrated in a single
office, was a government that invited despotism and would inevitably become tyrannical
and corrupt. This tendency toward ‘‘tyranny in the head’’ might be prevented, or at least
discouraged, through a separation of powers among the three branches of the Federal
government, and a reservation to the States of those powers that were not delegated to the
Federal government.
Fifth, the American Constitution was premised on the seemingly unassailable
assumption that the rights and liberties of the people would be protected because the
powers of government were limited, and that a separate declaration of rights would
therefore be an unnecessary and superfluous statement of an obvious truth. Since the
government of the United States was to be one of enumerated powers, it was not thought
necessary by the Philadelphia delegates to include a bill of rights among the provisions of
the Constitution. ‘‘If, among the powers conferred,’’ explained Thomas Cooley in his
famous treatise Constitutional Limitations (1871), ‘‘there was none which would
authorize or empower the government to deprive the citizen of any of those fundamental
rights which it is the object and duty of government to protect and defend, and to insure
which is the sole purpose of a bill of rights, it was thought to be at least unimportant to
insert negative clauses in that instrument, inhibiting the government from assuming any
such powers, since the mere failure to confer them would leave all such powers beyond
the sphere of its constitutional authority.’’ In short, the Constitution itself was a bill of
rights because it limited the power of the Federal government.
