ABOUT THE CONSTITUTION OF THE UNITED STATES

The Constitution of the United States comprises the nation's fundamental law, providing the framework for its governance and the principles under which it must operate. Judicial reinterpretation has given the Constitution the flexibility to accommodate changes in the specific laws subject to its authority. As Chief Justice John Marshall pointed out early in the 19th century, the Constitution was "intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs. To have prescribed the means by which government should, in all future times, execute its powers, would have been to change entirely, the character of the instrument, and give it the properties of a legal code."

The distinction Marshall made between the Constitution and other law was in keeping with the framers' provision for the supremacy of the Constitution in Article VI, which states: "This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land. . . . "

Genesis of the Constitution

The first constitution of the United States was the Articles of Confederation ratified in 1781. Because this document left too much sovereignty to the states, it was defective as an instrument of government. Some leaders felt that the individual states suffered economically from the lack of a strong central authority; commercial barriers between the states seemed particularly onerous. They also felt that the lack of unity among the states was causing serious problems in international relations and the defense of the nation. The weakness of the central government was dramatized by such events as Shay's Rebellion (1786-87) in western Massachusetts, and by the ability of one state to block legislation desired by the other twelve. The Annapolis Convention of 1786 called for a general Constitutional Convention, which met in Philadelphia in May 1787.

Twelve states (all but Rhode Island) named 73 delegates to the Constitutional Convention. Of these, 55 came but only 39 signed the Constitution on Sept. 17, 1787. The leaders of the convention were statesmen who in modern parlance would be called middle-of-the-road: George WASHINGTON, Alexander HAMILTON, James MADISON, John Jay, and Benjamin Franklin. Conspicuous by their absence were the firebrands of democracy, Patrick Henry and Sam Adams, and the author of the Declaration of Independence, Thomas JEFFERSON. In his keynote address at the convention, Edward Randolph said: "Our chief danger arises from the democratic parts of our [state] constitutions. It is a maxim which I hold incontrovertible, that the powers of government exercised by the people swallow up the other branches." Writing later in The Federalist, Hamilton said: "The people are turbulent and changing; they seldom judge or determine right."

JAMES MADISON (1751-1836)
Oil by Gilbert Stuart, 1804; Colonial Williamsburg Foundation.

The prevailing political philosophy of the framers of the Constitution would later be articulated as follows by Madison in The Federalist: It may be a reflection on human nature, that such devices [checks and balances] should be necessary to control the abuses 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 on government would be necessary. In framing a government which is to be administered by men over men, 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 upon the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions. What they sought was a balance that Madison called "mixed government" and "free government," a compromise between monarchy and democracy as they knew them.

Despite the consensus among the framers on the objectives of the Constitution, the controversy over the means by which those objectives could be achieved was lively. Controversy developed over the presidency and the way in which the President was to be elected; the relationship of the states to the national government; the relationship of the national government to the people; and the relationship of state to state. The latter conflict was partially resolved through the great compromise that gave small states equal representation with the large states in the Senate but apportioned representation according to population in the HOUSE OF REPRESENTATIVES. Other compromises involved the slavery issue; each slave was to be counted as three-fifths of a person in determining representation and in apportioning direct taxes, and the migration or importation of slaves was allowed to continue until 1808. Generally, sectional interests were also protected by compromise. Northern interests were upheld by giving the new government the power to regulate trade and commerce, and the South was protected against export taxes and the immediate prohibition of the slave trade. Southern and Western border interests were reassured that their territorial rights would be protected by the requirement that treaties be ratified by two-thirds of the Senate.

After it was signed, the Constitution was offered for ratification. By its own terms, "the Ratification of the Conventions of nine States" was required. This was achieved on June 21, 1788, and by 1790 all 13 of the original states had ratified it. Ratification was vigorously opposed by the anti-Federalists, who feared that a powerful central government would minimize the role of the people in governance and threaten individual rights and local interests. The effort to counter the arguments of the Anti-Federalists led to intense campaigning, including the writing of The Federalist by Madison, Hamilton, and Jay. The significant and lasting accomplishment of the opponents was to get the BILL OF RIGHTS added to the Constitution.

Framework

The framework of government established in the Constitution emphasizes four overriding concepts: popular control without majority rule; the limitation of governmental power; federalism; and a tripartite government.

Popular Control but not Majority Rule

The framers provided for ultimate control of the government by the people through the electoral process. Such control, however, was not to be exercised either easily or immediately, except perhaps over the House of Representatives. Originally, senators were to be chosen by the state legislatures and the president by the electors in the Electoral College. Since the state legislatures controlled the selection of senators, and presidential electors and seats in the state legislature were won in popular elections, it was assumed that the popular will would eventually have an effect on the choice of senators and presidents. It could also be argued that the people would have a voice in the choice of federal officials appointed by the president, with the advice and consent of the Senate, but this could be true of federal judges only in the long run, since they were given virtually lifetime tenure.

The framers, with their complex views on government, felt that the popular majority must be represented in the federal legislature. At the same time, they felt that they must not give over all legislative power to a popular majority. Consequently, they approved an arrangement by which one house of the legislature represented majority will and another house served as a check on the first.

Power Limited and Circumscribed

Despite the framers' anxiety over governmental power, their experience with the Articles of Confederation taught them that the national government must have the power needed to achieve the purposes for which it was to be established. In The Federalist, Hamilton described these purposes:

The principal purposes to be answered by union are these--the common defense of the members; the preservation of the public peace, as well against internal convulsions as external attacks; the regulation of commerce with other nations and between the States; the superintendence of our intercourse, political and commercial, with foreign countries.

The first objective, then, was to spell out and grant the power necessary for what Hamilton called "energetic" government, while at the same time making explicit the limits of that power and creating safeguards to ensure that the new government did not exceed those limits.

The framers granted 18 specific powers to Congress, but in Article I, Section 9, listed a rather large number of things that Congress was not allowed to do. Evidently the framers wanted to make it clear that certain powers were emphatically denied to Congress.

The specific powers of the president were enumerated in Article II, Sections 2 and 3. Several presidents have interpreted the clause in Article II, Section 1, "the executive Power shall be rested in a President," to mean that they had much broader substantive powers, and the courts have sometimes supported these claims. The phrase executive power, however, had a more exact and limited meaning for the framers, as Hamilton explained in The Federalist:

The essence of the legislative authority is to enact laws, or, in other words, to prescribe rules for the regulation of society; while the execution of the laws, and the employment of the common strength, either for this purpose or for the common defense, seem to comprise all the functions of the executive magistrate.

Presidential power was limited in other ways. The 4-year term, thought of primarily as a term long enough to ensure presidential independence, was also viewed as a limiting device. In addition, the president was made liable to impeachment proceedings. Although it was subsequently argued that the constitutional provisions for the grounds for impeachment should be narrowly interpreted, Madison, during the convention debates, made it clear that he agreed with the broad view taken by Hamilton in The Federalist: "The subjects of its [the court for trial of impeachment, the Senate] jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust."

The framers believed they had granted ample but fairly well-defined, limited power to the judiciary. They wrote in Article III, "The judicial power of the United States, shall be vested in one supreme court, and in such inferior courts as the Congress may from time to time ordain and establish." Judicial power as such was understood by the framers to mean the power to decide cases and controversies. Nothing was said about judicial review of acts of Congress. The limited debate on this issue suggests that the framers did not regard it as a momentous one. It is doubtful that any of them foresaw how important judicial review could and would become.

The framers were aware that the aggregate of powers granted to all the branches of the national government was enormous, and they agreed with Madison that it was not "sufficient to mark with precision, the boundaries of these departments [branches of government], in the constitution of the government, and to trust to these parchment barriers against the encroaching spirit of power." The Constitution incorporated ways of circumscribing the power that it granted. What the framers dreaded most, and were most concerned to guard against, was the concentration of power in one person's hands. Thus they provided for a separation of powers and a system of checks and balances. They felt that these principles involved different ideas and that, although they were to some extent complementary, they were also, to some extent, contradictory. Separation was intended to diffuse power, to divide it up systematically so that legislative, executive, and judicial powers would be in separate hands and would be exercised separately. The system of checks and balances required some fusion of powers, however. For example, although the president's power to veto acts of Congress is a check on the power of Congress, it is essentially a legislative power; granting it to the president seems to violate the separation principle.

In short, the framers did not rely on parchment alone to limit the power granted the new government. They further circumscribed it by diffusing it among branches designed to be independent and capable of retaining their independence, and by granting some specific powers as a check by one branch on the power of another. The framers also emphasized that the power of the states would serve as a check on the power of the new national government.

Federalism as a Basis

Despite their common heritage, background, and homogeneity, the original states were 13 different and distinct political entities, each commanding considerable loyalty from its citizenry. However much the framers wanted a strong central government, they knew that they could establish one only by allowing the states to retain power or by making it appear that they did. They realized, or at least Hamilton did, that, as a practical matter, there could not be a double sovereignty; the framers persuaded the public to accept the Constitution by claiming that sovereignty was indeed divisible. Under the federal system they devised, the national government was given the authority to exercise only the enumerated powers granted it, but it had supreme authority in those areas. State sovereignty was therefore largely a fiction; it was destined to have a stormy future, involving a bloody civil war.

Three Coordinate Branches of Government

Throughout U.S. history, the power relationship among the three branches of the federal government has been difficult to define. Woodrow WILSON complained in 1884: "I am disposed to think, however, that the decline in the character of the President is not the cause, but only the accompanying manifestation, of the declining prestige of the presidential office. That high office has fallen from its first estate of dignity because its power has waned; and its power has waned because the power of Congress has become predominant." Although Wilson later changed his mind, at the time he wrote these words he felt that congressional predominance was inherent in the system. At other times the Supreme Court has appeared to be the most powerful branch of the government; even as powerful a president as Franklin D. ROOSEVELT felt that the Court had wrested inordinate power from the other two branches. And later, especially during the presidencies of Lyndon JOHNSON and Richard NIXON, many people feared that governmental power had become concentrated in an "imperial presidency."

The framers felt that the legislative branch might tend to predominate. Thus they wanted a strong executive, for they believed, as Hamilton wrote in The Federalist, that "energy in the executive is a leading character in the definition of good government." They hoped to establish a government in which the three branches would be coordinate in power, but they felt that in fact the judiciary, though not subordinate, did not actually share in the exercise of real power.

Harold W. Chase