Problems in American Democracy

by Thames Williamson

PART V—THE MECHANISM OF GOVERNMENT

A. THE FEDERAL GOVERNMENT

CHAPTER XXXIX

THE FEDERAL SYSTEM OF GOVERNMENT

A. BACKGROUND OF THE FEDERAL CONSTITUTION [Footnote: For a fuller discussion of the background of the Federal Constitution, see Chapters II and III.]

493. COLONIAL GOVERNMENTS.—It is possible to classify the American colonies as charter, royal, and proprietary, and to point out important differences between these three types.

But these differences fade in importance before the broad and fundamental similarities existing among the colonies. Just as there was among the colonies a substantial unity of race, language, and religion, so there was a basic similarity in political institutions. All of the colonies were under relatively the same degree of control by England, and consequently all of them had much the same degree of freedom in managing their own affairs. In each colony a governor acted as chief executive. In each colony, likewise, there was a legislature. In most of the colonies this legislature consisted of two houses, the lower of which was elected by the people. Colonial jurisprudence everywhere grounded upon the common law of England. In each colony there was a system of courts, largely following English judicial procedure. In local government there was a good deal of variation among the colonies, but everywhere the English model was followed, and everywhere the principle of local autonomy was asserted and championed.

494. EARLY ATTEMPTS AT UNION.—These fundamental similarities, together with the rise of common problems and the pressure of outside enemies, encouraged federation among the colonies. A notable attempt at union was made in 1643, when Massachusetts Bay, Plymouth, Connecticut, and New Haven united in a league of friendship, primarily for mutual defense against the Indians. This league rendered effective service during the forty years of its life. In 1754 delegates from seven colonies met at Albany and adopted a plan of union proposed by Benjamin Franklin. The project was never carried through, but it is significant as indicating the trend toward union. Still later (1765) the Stamp Act Congress showed that the delegates of at least nine colonies could join in a protest against England's taxation policy. The two Continental Congresses may also be considered as steps toward union. The first of these (1774) concerned itself chiefly with a declaration of rights and grievances, but the second (1775-1781) went so far as to assume and exercise revolutionary powers.

495. THE ARTICLES OF CONFEDERATION.—Impelled by the necessity of a united front against England, the Second Continental Congress sought to give force to the Declaration of Independence by drawing up a comprehensive plan of union. This plan, embodied in the Articles of Confederation, was put into operation on March 1, 1781. The new government was a confederation or league of states, rather than a federal government such as we have to-day. The states gave up such important powers as the right to declare war, and the right to borrow and coin money, but the Articles specifically declared that "each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right which is not by this federation delegated to the United States in Congress assembled."

The Confederation government was seriously defective. There was no national executive and no judiciary. All authority was concentrated in a one-chambered congress, the delegates to which were entirely under the control of the state legislatures which chose them. The central government had no real authority or power. Its congress could reach the individual only through the action of the state governments, and these it could not coerce. The Confederation government managed to carry the states through the last two years of the war, and then declined rapidly in power and influence. The Congress could not force the states to co÷perate with one another in matters of national interest. The inability of the central government, either to pay the interest on the national debt or to force the states to observe treaties which we made with foreign powers, cost us the respect of Europe. "We were bullied by England," writes John Fiske of this period, "insulted by France, and looked askance at in Holland."

The defects of the Articles could not be remedied, for amendment was by unanimous consent only, and on every occasion that an amendment was proposed, one or more states refused their assent. By 1786 it was the conviction of most American statesmen that if the country were to be saved from anarchy and ruin the central government would have to be reorganized.

496. THE CONSTITUTIONAL CONVENTION OF 1787.—In May, 1787, delegates from every state except Rhode Island came together in Philadelphia to consider "means necessary to render the Constitution of the Federal government adequate to the exigencies of the Union."

Early in the session Edmund Randolph introduced what has been called the Virginia plan. This called for an abandonment of the Articles of Confederation and demanded the establishment of a strong national government. The Virginia plan favored the larger and more populous states by providing a national Congress of two houses, in both of which representation was to be on the basis of population.

Of the several other plans put before the Convention the most notable was that proposed by William Paterson of New Jersey. The adherents of this plan wished to retain the Articles of Confederation. The Articles were to be revised so as to give greater powers to the central government, but in most practical concerns the states were to continue sovereign. The New Jersey plan opposed the idea of a two-chambered legislature in which the states were to be represented on the basis of population. If representation in both houses of Congress were on the basis of population, it was declared, the larger and more populous states would be able to dominate the National government and the rights of the smaller states would be inadequately safeguarded.

After a long debate a compromise plan was adopted. It was agreed that there should be established a strong national government, but one sufficiently checked by constitutional provisions to safeguard the rights of the states. The national legislature was to consist of two houses. In the upper house the states were to be represented equally, while in the lower chamber representation was to be on the basis of population.

497. THE NEW GOVERNMENT.—The Convention completed the Constitution on September 17, 1787, and the document was immediately placed before the states. By the summer of 1788 the necessary number of states had ratified the Constitution, and on April 30, 1789, the new government was put to work under George Washington as first President.

The English statesman Gladstone has implied that our Constitution was an original creation, "struck off at a given time by the brain and purpose of man." But as a matter of fact the Constitution was not so much the result of political originality as it was a careful selection from British and colonial experience. The trial of the Confederation government had proved especially valuable, and in drawing up the Federal Constitution, the members of the Constitutional Convention were careful to avoid the defects of the Articles of Confederation. The most fundamental difference between the Confederation government and the new Federal government was that the Federal Constitution provided for an adequate executive and judiciary to enforce the Federal laws directly upon the individual. The Confederation government, it will be remembered, had been obliged to rely upon the states for the enforcement of all laws.

B. FRAMEWORK OF THE FEDERAL GOVERNMENT

498. THE THEORY OF LIMITED GOVERNMENT.—The new Constitution created a system of Federal government which retains the advantages of local self-government for the states, but at the same time secures the strength which results from union. The government of the United States is a compromise between centralization and decentralization, the balance between these two extremes being maintained by a rather elaborate system of checks, balances, and limitations.

These checks, balances, and limitations we may consider under five heads: first, private rights under the Federal Constitution; second, the threefold division of powers in the Federal government; third, the division of powers between Federal and state governments; fourth, interstate relations; and fifth, the supremacy of Federal law.

499. PRIVATE RIGHTS UNDER THE FEDERAL CONSTITUTION. [Footnote: For the prohibitions upon the states in favor of private rights, see Chapter XLV.]—The constitutional limitations upon the Federal government in behalf of private rights fall into two groups: those designed to protect personal liberty, [Footnote: Some of the limitations in favor of personal liberty enumerated in this section are contained in the first ten amendments to the Constitution, adopted in a body in 1791.] and those designed to protect property rights.

In many important particulars the Federal Constitution protects personal liberty against arbitrary interference on the part of the National government. Congress may pass no law establishing or prohibiting any religion, or abridging either freedom of speech or freedom of the press. The right of the people peaceably to assemble and petition the government for a redress of grievances shall not be denied. The privilege of the writ of habeas corpus shall not be suspended. Congress may not define treason. Neither bills of attainder, nor ex-post facto legislation may be passed by Congress. Jury trial, fair bail, and freedom from both excessive fines and cruel and unusual punishments are guaranteed by the Constitution. Neither life, liberty nor property may be taken without due process of law.

The Federal Constitution likewise protects the property rights of the individual against Federal aggression. The state governments alone may define property. Congress may not tax articles which are exported from any state. All direct taxes must be apportioned according to population. [Footnote: The Sixteenth Amendment exempts the income tax from this rule.] All duties, imposts, and excises must be uniform, that is, they must fall upon the same article with the same weight wherever found. Under the right of eminent domain, the Federal government may take private property for public use, but in such a case the owner must be fairly compensated.

500. THREEFOLD DIVISION OF POWERS IN THE FEDERAL GOVERNMENT.—A second distinctive feature of our system of government is that Federal authority is distributed among three distinct branches: the executive, the legislative, and the judicial. This is part of the general system of "checks and balances" by means of which the framers of the Constitution sought to prevent any branch or division of government from securing undue control of the governmental machinery.

The basic merit of this threefold division of powers is that it safeguards each branch of government against aggression from the other two branches. And yet this division of powers is by no means so complete that the three branches do not work together. For example, both the appointive and the treaty-making powers of the President are shared by the Senate. The President shares in legislation through his veto power, as well as through his right to send messages to Congress. The Senate has the right to impeach all civil officers of the United States, and may even exert some control over the Supreme Court through its right to prescribe the number of its judges and the amount of their salaries. The judiciary, on the other hand, enjoys the unique power of passing upon the constitutionality of the acts of the other two branches of government.

501. DIVISION OF POWERS BETWEEN FEDERAL AND STATE GOVERNMENTS.— Another feature of the check and balance system is that authority is divided between Federal and state governments. The Tenth Amendment declares that "the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states." Thus we speak of the National government as enjoying delegated or enumerated powers, while the state governments have residual or unenumerated powers. The Federal government must show some specific or implied grant of power for everything that it does, but state governments need only show that the Federal Constitution does not prohibit them from doing whatever they see fit.

This division of powers between Federal and state governments has several distinct advantages. For example, it allows Federal and state governments to act as a check upon one another. Furthermore, the device admirably divides governmental labor: the Federal government is given control of matters essentially national, while the states are left in charge of affairs distinctly state or local in character.

502. INTERSTATE RELATIONS.—Further to guarantee the integrity of the Federal system, the Constitution specifies the fundamental nature of interstate relations. The states are independent of one another, and are equal in Federal law. The laws of a state have no force, and their public officials have no authority, beyond the state limits.

The Constitution specifically provides that "full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state." This does not mean that the laws of a particular state are binding upon persons in other states. It does mean, however, that the courts of each state shall endeavor to give the same force to the laws of a neighboring state as those laws would have in the courts of the legislating state.

To prevent discriminations against citizens of other states, the Federal Constitution provides that the citizens of each state are "entitled to all the privileges and immunities of citizens in the several states." This means that a citizen of one state may remove to a neighboring state, and there enjoy the same civil rights that the citizens of the latter state enjoy.

In order that fugitive criminals may be tried and punished, the Constitution further provides that "a person charged in any state with treason, felony, or other crime, who shall flee from justice, and be found in another state, shall, on the demand of the executive authority of the state from which he fled, be delivered up to be removed to the state having jurisdiction of the crime."

503. SUPREMACY OF FEDERAL LAW.—A last distinctive feature of our system of government is that Federal law is supreme. The Constitution 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." The states are supreme in their sphere of action; nevertheless, when it is claimed that there is a conflict between state and Federal law, the latter prevails. Federal law is the supreme law of the land, and, in the last instance, it is the Supreme Court of the United States which is the interpreter of that law. The decisions of the Supreme Court are binding upon the Federal government, upon the several states, and upon private individuals.

C. DEVELOPMENT OF THE FEDERAL CONSTITUTION

504. THE FORMAL AMENDING PROCESS.—The Constitution of the United States may be formally amended in any one of four ways. First, an amendment may be proposed by a two-thirds vote of each House of Congress, and ratified by the legislatures of three fourths of the states. Second, an amendment may be proposed by a two-thirds vote of each House of Congress and ratified by conventions in three fourths of the States. Third, an amendment may be proposed by a national convention, called by Congress upon the request of the legislatures of two thirds of the states, and ratified by the legislatures of three fourths of the states. The fourth method resembles the third, except that ratification is by conventions in three fourths of the states.

505. AMENDMENTS I-XIX.—There have been nineteen Amendments to the Federal Constitution. [Footnote: For the full text of these Amendments see the Appendix.]

Of these the first ten were adopted as a body in 1791, to satisfy those who feared that the new Constitution did not adequately protect individual or states' rights against Federal aggression. Amendments I- VIII are designed to protect the fundamental rights of the individual. The Ninth and Tenth express the principle that the Federal government is one of enumerated powers, while those powers not specifically conferred upon the Federal government by the Constitution are reserved to the states or to the people.

The Eleventh Amendment, adopted in 1798, provided that the Federal judicial power should not be construed to extend to any suit against a state by citizens of another state, or by citizens or subjects of any foreign state.

The Twelfth Amendment, adopted in 1804, provided that presidential electors should cast separate ballots for President and Vice President.

The Thirteenth Amendment (1865) abolished slavery, the Fourteenth (1868) defined citizenship and sought to prevent the states from discriminating against certain classes of citizens, while the Fifteenth Amendment (1870) declared that the right of citizens of the United States to vote shall not be denied or abridged on account of race, color, or previous condition of servitude.

In 1913 the Sixteenth Amendment authorized Congress to tax incomes without apportionment among the several states, and without regard to any census or enumeration.

In the same year the Seventeenth Amendment provided for the direct election of United States Senators.

In 1919 an Eighteenth Amendment prohibited the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from, the United States.

A Nineteenth Amendment was adopted in 1920. This declared that the right to vote shall not be denied to any citizen of the United States on account of sex.

506. CONSTITUTIONAL CHANGES THROUGH JUDICIAL INTERPRETATION.—The Federal Constitution has also been modified and developed by judicial interpretation. The United States Supreme Court has maintained that the Federal government possesses not only those powers expressly granted by the Constitution, but also those powers which are included with, or implied from, powers expressly granted. This liberal construction is authorized by the Constitution itself, for the last clause in Section VIII of Article One of that document declares that Congress shall have power to "make all laws which shall be necessary and proper for carrying into execution" its enumerated powers. Under this doctrine of implied powers, the influence of the National government has been markedly extended, chiefly with regard to the war power, the power to regulate interstate commerce, and the power to levy taxes and borrow money.

507. CONSTITUTIONAL CHANGES THROUGH USAGE.—The Federal Constitution has also been modified by the force of custom and political practices. Examples of the power of usage to modify the Constitution are numerous, but a few will suffice to illustrate the principle. Custom has limited the President of the United States to two terms. In conformity with a long-established custom, Presidential electors do not exercise independent judgment, but merely register the vote of their respective constituents. Though the Constitution provides that the appointive power of the President shall be exercised with the advice and consent of the Senate, custom virtually prohibits the Senate from challenging the President's Cabinet appointments. On the other hand, many executive appointments of minor importance are determined solely by members of Congress. Usage decrees that the President alone may remove officers which he has appointed with the advice and consent of the Senate. Lastly, the legislative committee system, as well as the entire machinery of the political party, is the outcome of custom. Concerning these important instruments of practical politics, the Constitution is silent.