Tocqueville famously observed in the 1830s that in the US virtually all political questions ultimately become legal questions. One reasons lies in the Constitution itself. This document, which its framers designed to restrain power, often has made political conflict inevitable. It also has accommodated and legitimized the inevitable political and social changes of a vibrant, powerful democratic nation.
Drafted when the US was a 3rd-rate nation of 4M residents.
In fact, each generation has produced a different Constitution, at least interpretively, as the nation responded to changing circumstances.
Since its adoption, there have been more than 10K efforts to amend the Constitution. It appears that Americans do not view the document to be as sacrosanct as their rhetoric about it suggests.
Citizens often do not know what the Constitution says, a problem shared by all texts deemed sacred.
Accepting the Court as the ultimate arbiter does not resolve the dilemma because sharp divisions exist among the justices themselves about standards of interpretation. In a closely divided Court, a shift by one or two justices often holds the potential for changing what the Constitution requires on any given issue.
Most notably associated with Justice Scala, originalism insists on strict construction to restrain unelected judges from writing their own views into the Constitution.
As its political expression, the Constitution was the revolutionary answer to an age-old antagonism in Western culture between power and liberty. Every word of the Constitution decides a question between power and liberty. What made the American experience unique was its answer: In Europe, charters of liberty have been granted by power. America has set the example of charters of power decided by liberty.
American revolutionaries believed that power and liberty were intractable foes; the only way to protect liberty was to restrain power. For them, power in government — always rapacious and always a danger to liberty — was the central problem posed by independence.
Subjects look up to a master, but citizens are so far equal that none have hereditary rights superior to others. In a world in which class and status were birthrights, this belief is the equality of citizens was radical.
History provided examples of successful republics in ancient Greece and Rome, but it also had revealed them to be fragile. This form of government required much of its citizens, who had a duty to pursue the public good instead of their own self-interest. They also had to choose wise men to govern them. Above all, republican citizens must remain united in the face of monarchies that would seek their destruction. The need for unity meant that republics could exist only in geographically small and socially homogenous areas, certainly nothing larger than the new states.
It was a radical step because constitutions traditionally followed the practices of government rather than restrained them. The British constitution, for instance, had no fixed form; it vested sovereignty in Parliament and incorporated its acts, along with ancient laws such as Magna Carta, into an organic, or dynamic, constitution. A written constitution restricted what government could do.
State constitutions limited power in a variety of ways. They rejected the British theory of mixed government in favor of separation of powers. The British constitution had blended 3 forms of government — monarchy, aristocracy, and democracy, each corresponding to classes in the social order — into a unitary government. The revolutionaries instead divided the function of government — executive, legislative, and judicial — into branches without reference to social constituencies. The constitutions vested primary authority in the lower house of the legislature, the one closest to the people, and sharply restrained executive power. Finally, they included a listing of individual rights, including newly discovered ones, that government could not abridge.
The threat to poverty was troubling because experience taught that it was the “guardian of every other right.”
Such factious politics distressed revolutionary leaders, who had counted on public virtue to ensure the success of republicanism. They never imagined that the people could be the source of tyranny: “An elective despotism was not the government we fought for.” The Revolution, in fact, had reshaped society as well as government. The rise of democratic politics confounded a republican assumption that both politically equality and deference to the rule of wise men were required for a stable society.
Whether the nation could succeed was also in doubt, as 13 separate republics pulled in their own directions to the exclusion of a larger national purpose. States taxed the commerce of other states to protect their own manufacturers and merchants. The weak national government was powerless to intervene. Described as a “league of friendship” among the states, it lacked authority. The Confederation could not tax or enforce its own laws, regulate commerce among the states, or provide security. Ironically, it was ineffective for a reason on which all revolutionary republicans agreed: centralized power was the greatest threat to liberty.
For them, state legislatures were not democratic enough; they were captive of special interests and did not represent the people. The war debt had resulted in a tax burden that, for most Americans, was higher than the one they had experienced under the British and fell unevenly on farmers.
They sought to fashion a strong yet restrained national government that did not depend on virtuous people.
The delegates wrestled over questions of power and structure. How could they create a central government capable of addressing the nation’s ills without weakening states, the governments most trusted by citizens, or without making national authority dependent on states, the plague of the Articles of Confederation? How would they allocate power to avoid an overweening legislature or a too-strong executive? Could they create an energetic government without jeopardizing the rights of the citizens? Could they remain true to republican principles?
The last major hurdle involved the structure and role of the executive branch. As the embodiment of popular sovereignty, Congress was to be the great engine of government, but the separation of powers principle required a counterweight to its broad authority. Was it possible to create a strong chief executive without feeding the human tendency to abuse power? Also, popular sovereignty implied election by the people, but how — directly or indirectly? Would the people know enough about the candidates to choose wisely? The fear that an electorate would choose a heroic figure who had no other qualification for office kept most delegates from seriously considering direct election.
The compromise reached proposed a president chosen by indirect election. States would have electors equal to their representation in Congress who would cast individual votes for the 2 people they considered the best qualified to serve as president and VP.
The House, with members elected by districts, had one exclusive power — impeachment (an accusation of misconduct) — and one power it had to exercise first — all revenue bills had to begin in the lower chamber. Elected by state legislatures, the Senate was indirectly representative of the people and served as a brake on the House’s democratic tendencies, with a minimum age and a longer term for its members. It had the exclusive power of approval (“advise and consent”) for presidential appointments.
Section 10 prohibited the states from infringing the powers of Congress in matters taxation, war, and diplomacy. Otherwise, the states could exercise whatever powers their respective constitutions permitted.
Republican concerns did not permit a grant of unrestrained authority, however. Congress could override a veto by a two-thirds vote in both houses, and treaties and appointments to office required the advise and consent of two-thirds of the Senate. The president had to report periodically to Congress on the state of the union.
In Britain, dispensing justice was a royal obligation. The Constitution created a separate and equal branch, with federal judges holding office indefinitely on “good behavior,” which insulated them from popular passions. The Supreme Court had limited original jurisdiction, however, and generally could exercise its power only on appeal. Other provisions required a jury trial for all crimes except impeachment and strictly defined the terms of treason to prevent its prosecution for political ends.
Article 4 included the principle of reciprocity (or comity): states had to give “full faith and credit” to the acts, records, and proceedings of other states; the citizens of each state would have “all privileges and immunities” of citizens of other states; states were bound to return escaped prisoners and slaves to states from which they had fled. The aim of these specific provisions was clear — the Constitution created a singular United States, with equal (but undefined) citizenship, although initially for free persons only.
When state conventions met to ratify the Constitution, their delegates debated a document that offered a mechanical solution to the problem of governmental power, one suited to the age of scientific enlightenment. Just as Deists imagined God as a master watchmaker, devising a universe that ran on its own internal rules, so the framers believed that the right architecture for government would allow imperfect men to govern themselves. The structure of government would correct what the weakness of men could not. In their “new order for the ages,” the framers reflected a central lesson from the 1780s: unalloyed governmental power, even when entrusted to the people’s representatives, was dangerous. The only sure way to trust power was to divide and restraint it; however, properly limited, a strong, energetic national government would preserve the liberty gained by the revolution.
Not everyone agreed. Opponents charged that the framers had betrayed the Revolution, and they mounted attacks that questioned the framers’ motives. Farmers, artisans, and backcountry settlers, many from small states, were suspicious that the ambitious, commercially minded men from large states wanted a government powerful enough to advance their selfish interest and to subvert the rising democracy unleashed by the Revolution.
Anti-Federalists were not convinced. They operated from an older conception of republicanism: only small, homogeneous republics produced the harmony of interests required for effective government. The wide disparity in economic interests in a national republic was a matter of special concern, with conflict inevitable between northern commerce and southern plantation agriculture. Opponents also remained committed to an earlier view that power and liberty were bitter enemies and that a unified citizenry, devoted to the common good, was essential to protect liberty.
Like Federalists, the Anti-Federalists produced voluminous writings that warned, presciently, about the problems of government under the new constitution. Their most consistent theme was the perceived threat to individual liberties. Since the laws of the US were supreme, state constitutions offered little protection. Without a bill of rights, they argued, government could quickly slide into tyranny.
They included 2 types of guarantees: rights necessary for representative government, such as freedom of religion, speech, press, and peaceable assembly; and rights of the accused, including protection against double jeopardy and self-incrimination as well as the right to counsel and trial by jury.
With the ratification of the Bill of Rights in 1791, the revolutionary Constitution was complete. It was the product of compromise, and as such it left fundamental questions unaddressed and unanswered. It did not mention equality, even though the Declaration of Independence had included it as one of the nation’s ideals. The Constitution rested on popular sovereignty — “We, the people” — yet its practical meaning was ambiguous. Its established a representative process but left unaddressed the question of how much power the people had surrendered to government and how much they retained for themselves. The difference mattered because popular sovereignty made the people both rulers and ruled.
Power in government, properly structured, could promote and protect liberty. Not everyone agreed. For opponents of the Constitution, perhaps half of the population, power in government remained what it had been throughout history — the enemy of liberty.
Federalism, the division of power between state and central governments, was the most novel doctrine to emerge from the Constitutional Convention. It embraced a contradiction, imperium in imperio, a sovereignty within a sovereignty. This logical inconsistency — classical theory assumed that governmental sovereignty was indivisible — could be explained only by another innovation, popular sovereignty, that vested ultimate power in the people.
Advocates of states’s rights have longed believed that power in a large and distant central government is a menace to liberty. Supporters of a strong national government have argued that authority exercised from a vigorous central advances the cause of liberty. These positions have not tracked neatly or consistently with political ideology, party affiliation, or regional identity, and both sides often have embraced a position they once rejected.
The power to tax is the power to destroy.
The tariff’s only legitimate purpose was to generate revenue, he contended, not to protect American industries; Congress also could not favor manufacturing over agriculture. Under these conditions, a state, acting in a popular elected convention, retained power to “veto” any unconstitutional measure of the central government. It was a provocative argument because Calhoun rested his case not solely on states’ rights but on popular sovereignty as well. The states were not acting as states alone but as agents of the people.
Calhoun’s claim reminds us of how often Americans appealed to the revolutionary tradition of sovereignty when dissenting from the actions of their government.
The 14th Amendment took on new life as a check on the power of states to govern economic activity. The Supreme Court defined corporations as persons in 1886, which provided them protection against arbitrary state action under the amendment’s due process clause.
This new order brought its own problems. Corporate corruption convinced citizens that monopolies posed a greater threat to liberty than did government. This belief changed the debate about federalism. No single state or even groups of states could regulate the new industrial giants, so the only option was to increase national authority to control private power. The 16th Amendment (1913), which authorized a national income tax, made this change possible. With the revenues to create a strong national bureaucracy, the calculus of power began to shift.
Although limiting congressional power, such decisions do not auger a return to dual federalism. It is too impractical. States have not clamored for change because they are now rely on federal funds to solve increasingly complex problems. Education, crime, economic development, immigration, public health, and a host of other issues have local expressions but few people argue seriously that any state could solve them alone. Only the national government has authority and resources to address issues that transcend state boundaries.
“The life of the law has not been logic; it has been experience.” By this, he meant that social and economic change necessarily influences legal interpretation; this “legal realism,” as it was called, suggested that courts were responsible for keeping law current.
The self-inflicted weakening of Congress is not a recent phenomenon. It is cyclical. Parties are an extra-constitutional development — the framers worried about such factions — but they have permitted Congress to function efficiently and with dispatch when a congressional majority and president shared a party affiliation. More often, Congress and president have been from different parties, resulting in efficiency. Although weakening Congress, both division and inaction serve as an informal set of checks and balances.
Judicial activism remains a concern, but the increase in presidential power has been more troubling. The executive branch is replete with well-staffed offices, agencies, and commissions unimaginable even in the mid-20th century, all justified by the demands of a complex global society.
Dual claims of executive privilege and executive immunity symbolize the “imperial presidency,” the first referring to the president’s power to withhold information at his discretion and the second to his ability to ignore all other processes of law while in office, except for impeachment.
The doctrine of separation of powers was adopted not to promote efficiency, but to preclude the exercise of arbitrary power. The result has been both frustrating and beneficial. Checks and balances have slowed the pace of reform, yet structural restraints have permitted public opinion to develop in support of change.
The revolutionaries believed that the right to property was a natural law: it ensured freedom by providing self-sufficiency, the condition that allowed men to resist arbitrary government. “Property must be secure, or liberty cannot exist.”
It embraced the Lockean idea that protection of property was a central aim of government. “No person shall be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” Many terms were ambiguous — What was property? Due process? Public use? Just compensation? — but James Madison believed that they should be construed broadly. The aim, he argued, was to protect people’s right to the free use of their property.
The Darthmouth College case was noteworthy because it offered constitutional protection to the corporation, a form of enterprise traditionally used by charitable and public functions but increasingly adopted by businesses as a way of limiting risk.
Taney understood that abandonment of the wold to make way for the new — what the later economic scholar Joseph Schumpeter called the process of “creative destruction” — is integral to capitalism. The Charles River Bridge case was an exemplar of a major transformation of American law that sacrificed concepts of vested rights and natural law to the demands of progress. It did not undermine the right to property but made clear that the nation’s economic future demanded dynamic, not static, forms of property.
From 1865 to 1900 the US experienced dramatic economic transformations. Work was mechanized, both in manufacturing and in agriculture; national markets emerged in food, clothing, and durable goods, with economies of scale reducing costs to consumers but often harming local suppliers and businessmen; and standards of living improved, especially for a rapidly growing urban middle class. These transitions were not smooth or uniform in their effect: the economy experienced steep depression in 1873 and 1893; labor often clashed violently with owners over pay, hours, and working conditions; urban poverty and crime were major problems; politics was unusually partisan; and government at all levels was overwhelmed, unstable, and often corrupt.
The challenge was how to reconcile a legal framework built for a highly decentralized agrarian society, with its emphasis on restraint of public power, to the needs of an urban, industrial nation in which private or corporate power came to be seen not only as an engine of prosperity but also as a threat to liberty.
From the time of Marshall, American judges had sought to make law a science based on reason. Under this framework, jurists believed that law had 2 branches — public law and private law. Public law embraced the actions of government and ultimately was political. It responded to popular will and, in economic matters, its tendency was to regulate and redistribute wealth. Private law, such as the law of property and contracts, protected the exercise of individual will and was essential to the functioning of a free market. Only judges, in this view, could serve as neutral arbiters between the conflicting demands of public and private law.
The distinction between public and private law was a fiction — in a democracy, law always is political — but it expressed a powerful Anglo-American ethical tradition that government should not advance the interest of one party over another. The attacks on vested rights, monopolies, and special interests from Jefferson through Jackson and beyond were part of this legacy that promoted individual liberty as its highest goal. Any government restraints on this liberty were suspect.
But dissenting justices fashioned a doctrine known later as economic due process, which soon became a majority position. The issue was not whether the legal process was fair but whether it was reasonable and produced a fair result; judges would decide if it adhere to free-market principles, not legislators beholden to special interests. This approach was a clear expression of laissez-faire constitutionalism: economic liberty and personal liberty were the same, and the right to own and use property unimpeded by government became a judicial touchstone of American freedom.
The New Deal was frankly experimental, and its programs failed as often as they succeeded. It did not end the Great Depression, although its approach of massive fiscal stimulus did. WW2 spending — and the enlistment of millions of men into the armed forces — ultimately solved the widespread under-consumption and unemployment that prolonged the Depression. Even so, the New Deal’s constitutional importance cannot be overstated. It used governmental power to control private excess in pursuit of public liberty and warred with the rigid notions of limited government, marketplace competition, and sanctity of property rights that marked the constitutional order.
The Court repeatedly has limited the states’ ability to isolate or protect their businesses or citizens from national regulations, for example, by striking down a state’s prohibition of imported waste materials or giving its residents preferred access to natural resources.
Popular sovereignty was the touchstone of republican liberty, but only grudgingly did rulers admit the ruled into their circle. The worldview of the framers had no room for women, blacks, Indians, or the poor as citizens worthy of the ballot. It took a series of constitutional amendments, all spurred by war or massive movements, to expand the electorate and redefine “we the people” to include all adult citizens as rulers.
Western societies traditionally viewed hierarchical authority as natural, but revolutionary republicanism embraced a different premise: the people could rule themselves. Representation was the means to express consent, but the American experience required that the connection between the representative and the represented be direct, or local. (Great Britain practiced virtual representation whereby members of Parliament represented all Englishmen everywhere.)
Modern warfare has a leveling influence — the battlefield does not honor class distinction — and the emphasis on equality and democracy as core constitutional values stemmed in part from its effects.
The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life.
The framers distrusted direct democracy, preferring instead the indirect form of a democratic republic, but the theories on which they based the Constitution, popular sovereignty and representation, had their own internal dynamic that pointed toward more, not less, citizen participation in government.
Equality was not an explicit core value of the Constitution, nor was it a basic condition of republican governments. The framers lived in a world based on class distinctions. They rejected hereditary aristocracy but casually accepted the idea of a natural aristocracy based on merit. Republican liberty existed to allow merit to flourish, not to create an unnatural order in which the capacities and talents of men counted for little.
Anything more forceful, the justices feared, would expose the Court’s fatal weakness — it could not enforce its decisions without the support of Congress and the executive branch, neither of which favored immediate desegregation.
Brown taught a valuable lesson: litigation alone was insufficient to bring about change; constitutional equality depended upon a social and political movement.
If there was any fixed star in our Constitution, Justice Jackson wrote, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.
But such talk was not always consistent with rights in action. Several weeks after the Japanese attack on Pearl Harbor, Roosevelt ordered the relocation of Japanese American citizens into internment camps. The executive order violated the equal protection and due process clauses of the 14th Amendment, but the Supreme Court upheld the actions, unwilling to challenge the president’s claim of national security despite the lack of evidence of a real threat. In times of crisis, concerns about national security generally trumped individual rights.
Americans remain divided over how far their rights extend. New assertions of rights historically have met resistance and angry backlash. In many ways, this conflict has made rights talk even more contagious. Rights claims, after all, are made by someone who alleges a denial of liberty by the government or someone else. It is hard to think in terms of common values or community when engaged in rights talk; too much focus on individual liberties can skew our senses of the interests we hold in common.
The framers wrestled with how to grant government the power to defend the nation without providing it the means to threaten liberty. The question it raises — Does war suspend the Constitution or the the Constitution control the conduct of war? — has rarely been absent from American history.
The framers gave Congress alone the power to declare war and set the rules for its conduct. Such an extraordinary action, they decided, must have the people’s consent.
As commander-in-chief, Lincoln also relied upon an aggressive, innovative, and controversial constitutionalism in the exercise of his power. He went beyond the Constitution in some instances and ignored its clear injunction in others.
The requirements of modern warfare overrode the constitutional separation and balance of powers, as well as the division of authority between national and state governments. This understanding soon became the new standard for national emergencies.
“The complete and undivided character of war power of the US is not disputable,” a unanimous Court ruled in 1919. Not even the Bill of Rights was sacrosanct.
Roosevelt felt no need to justify his actions; he believed, as did Lincoln and Wilson before him, in the president’s inherent authority to do whatever was necessary in a national crisis. This power was unlimited, FDR told Congress in 1942, although after the crisis ended, he pledged, these extraordinary powers would revert to the people. It was a breath-taking assertion of authority. It assumed that presidential ability to act in the nation’s defense knew no constitutional limits during wartime.
Most ominously, the menace seemed to exist in the US itself, evidenced by spy rings and theft of military secrets. The threat was real, but the degree of danger and the consequences were unknown, which only made them more frightening.
A menacing world and an uncertain economy, analysts and pundits argued, required a strong, vigorous presidency; the executive was not a danger to liberty and democracy but its savior.
By 1968, public opinion turned sharply against the war, with the victorious candidate, Nixon, pledging to end the conflict. Nixon instead sent more troops to Vietnam.
The presidential staff under Nixon became significantly larger and more powerful, exercising authority previously assumed by the heads of the various federal departments. Few members of the WH staff had congressional oversight, a problem that became apparent when Nixon repeatedly prevented subordinates from responding to congressional subpoenas. He also claimed the authority to impound money appropriated by Congress and a broad executive immunity for his actions as president. He argued further that presidential power was unlimited except by his own judgment, especially in military and foreign affairs. By this view, he could mislead Congress and ignore rules of criminal investigations when necessary to protect national security.
In 1978 Congress also established a system for appointing independent counsels, or special prosecutors, to investigate executive misconduct. For many liberal observers, these actions marked a necessary rebalancing of power; conservatives believed the pendulum of reform had swung too far, leaving the president too weak to protect the nation’s interests.
Hundreds of suspected terrorist were housed in at the US military base at Guantanamo Bay, where the government argued they were beyond the jurisdiction of US courts but not outside the president’s power as commander-in-chief to hold them indefinitely. These detainees also were deemed “unlawful combatants,” a designation that placed them outside the protection of the Third Geneva Convention, an international treaty for treating prisoners of war. Guantanamo, in brief, was a law-free zone.
The decision relied upon a series of cases stemming from the US acquisition of Spanish territories following the Spanish-American War of 1898 in which the Court ruled that the Constitution followed the flag and extended limited constitutional protections to residents of these territories.
The election of Obama represented a repudiation in part of the Bush administration’s more extreme claims but, in fact, Obama continued many of the practices that he had condemned as a candidate. It suggests, at a minimum, the difficulty of reconciling constitutional ideals with conditions in an uncertain and dangerous world, one in which military action may not wait for the congressional approval the founding generation thought necessary in a republic.
And yet it is doubtful that the delegates to the Constitutional Convention would have agreed that unrestrained power is the solution to the problems of security. They too lived in a world of great insecurity. War was ever-present, and it was even more worrisome because the new republic was demonstrably weak when measured against the great powers of the day.
The US does not operate today under the Constitution ratified in 1788. Nor is it the same nation.
Even though the strains on the Constitution may appear unique, the problems that American confront are not different in degree from what previous generations faced. The nation has survived more severe threats to its security, whether military or economic, and to its ever-expansive conception of individual rights. But it has done so only because enough of its citizens valued constitutional guarantees and traditions enough to defend them.
The Constitution does not mean now what it did in its first expression. It is not a legal straitjacket, not is it a timeless framework for government. It is the product of practical revolutionaries who sought to institutionalize radical ideas, popular sovereignty — they people as rulers — chief among them. The framers feared power and they trusted liberty, yet they knew that these two forces would always operate in tension. The challenge was how to reconcile them so the new nation would benefit from both order and freedom.
A woman called to him, “Well, Dr. Franklin, have you given us a republic or a monarchy?” “A republic, if you can keep it.”