“A government of our own is our natural right: And when a man seriously reflects on the precariousness of human affairs, he will become convinced, that it is infinitely wiser and safer, to form a constitution of our own in a cool deliberate manner, while we have it in our power, than to trust such an interesting event to time and chance.”
–Thomas Paine (1)
“How is it that we hear the loudest yelps for liberty among the drivers of negroes?”
–Samuel Johnson (2)
Unless you happen to be one of those lawyers or political scientists who specialize in constitutional interpretation, you are not expected to know all the details of the U.S. Constitution. However, every citizen and resident of America should be familiar with the key features described in this section.
Balancing Large and Small States
One of the initial disputes among delegates at the 1787 Constitutional Convention in Philadelphia involved the relative weight of the individual states in the new government. Two competing proposals, the Virginia Plan and the New Jersey Plan, agreed on the need for a stronger central government but differed on how the states would be represented. The Virginia Plan proposed that the more populous states would have more seats in Congress than the smaller states. The New Jersey Plan proposed that they retain the scheme represented in the Articles of Confederation, with each state having one vote in Congress regardless of the state’s population. Another notable difference between the two plans: The Virginia Plan proposed a bicameral legislature—a Congress with two chambers—while the New Jersey Plan proposed a unicameral legislature. This dispute was contentious enough that it threatened to bring the convention to an end. James Madison was especially interested in creating a strong central government, which he felt could not legitimately be done if each state was represented equally without regard to its population. “In all cases,” he said, “where the General Government is to act on the people, let the people be represented and the votes be proportional” to state population. (3) However, delegates from small states were not happy unless their states got equal representation, which threatened to derail the Constitutional Convention.
On July 5, 1787, a committee dedicated to the state representation issue led by Roger Sherman of Connecticut proposed a solution that is now known as the Connecticut or Great Compromise. The Compromise called for a bicameral legislature and a different representational scheme for each chamber. In the House of Representatives, each state would have seats proportional to its population. The original formula was one representative for every 30,000 people. The Senate would have two senators from each state, regardless of population. Representatives would be elected by popular vote, while senators would be chosen by state legislatures. The Compromise narrowly passed the convention on July 16. It was a monumental decision that solved the dispute at hand, but with its passage, delegates sacrificed the basic democratic notion that one vote should weigh as much as another. The Connecticut compromise gave disproportionate power to smaller, rural, and less populous states, particularly after the Seventeenth Amendment passed when senators became elected directly by the people.
The Infamous Three-Fifths Compromise
A second dispute occurred related to state representation: If a state’s population determined its seats in the House of Representatives, the question whether to count slaves or not became an important issue. While slavery was dying in most Northern states, the Southern economy was becoming increasingly dependent on slaves, and counting them in the census would add to Southern political power. The Northern states objected, and the convention settled the dispute via a mechanism eventually called the infamous Three-fifths Compromise, which resolved the dispute to the South’s advantage. Essentially, one slave would be counted as three-fifths of a person. Article I, section 2 of the Constitution states, “Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a term of Years, and excluding Indians not taxed, three-fifths of all other Persons.” This is one of several places where slaves are mentioned in euphemistic ways in the Constitution. The terms “slave” and “slavery” do not actually appear in the document.
By counting three-fifths of the slave population in the census, Southern states were allocated additional seats in the House of Representatives—twenty-five more than they deserved in 1833, for instance—and additional electors in the Electoral College. This extra representation had enormous consequences. As Paul Finkelman, law and public policy professor at Albany Law School, put it: “Southerners were able to block federal legislation hostile to slavery and get the House to pass numerous laws that protected slavery. The three-fifths clause allowed the extra pro-slavery representatives in the House to pass the following laws: the Missouri Compromise of 1820, which brought Missouri in as a slave state; Texas was annexed in 1845, which was described at the time as an ’empire for slavery’; the Fugitive Slave Act passed in 1850; the law allowing slavery in Utah and New Mexico passed; and the Kansas-Nebraska Act passed in 1854, which opened the Great Plains and Rocky Mountain territories to slavery. None of these laws could have been passed without the additional twenty-five pro-slavery representatives that were created by counting slaves under the three-fifths clause.” (4) The Three-fifths Compromise, as it applied to slaves, was nullified when post-Civil War Amendments to the Constitution were passed.
Power to the Central Government
Compared to the Articles of Confederation, the Constitution’s central government maintains more power than the states. Central government’s legislative power is vested in the legislative branch. The Founding Fathers drew on a burgeoning philosophical tradition that held that the government’s legislative aspect is the most important. In his Second Treatise on Government, John Locke argued that the legislative was “the supreme power in every commonwealth.” In Federalist #51, James Madison wrote, “In republican government, the legislative authority necessarily predominates.” You should be familiar with the major powers given to Congress in Article I, section 8 of the Constitution. These include the power to tax, borrow money, raise armies and navies, establish lower federal courts, regulate the money supply, regulate interstate and foreign commerce, and declare war. These are called the enumerated powers of Congress because they are formally listed in the Constitution. When Congress exercises enumerated powers, they are relatively undisputed, although arguments have erupted over the years about definitional boundaries—like what activities fall under the phrase “interstate commerce”? We should be clear, however, that even when Congress is attempting to exercise an enumerated power, it cannot do so while violating another part of the Constitution. For example, law professor Kim Wehle notes that while Congress has the power to tax, it would violate the Fourteenth Amendment’s Equal Protection Clause if it tried to tax only white people. (5)
At the end of these enumerated powers is the Necessary and Proper or Elastic Clause, which states that Congress has 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.” This has historically been a very important phrase in the Constitution because it has allowed the national government to expand its powers into a variety of areas that were not anticipated by the founders. For instance, Congress has forbidden child labor, set maximum-hour laws, and established a minimum wage—none of which are explicitly mentioned in the Constitution. All these measures have been justified with the Elastic Clause, combined with the enumerated power to regulate interstate commerce. When Congress does expand its powers, it justifies its new role by saying that it is only “carrying into execution” one of its enumerated powers. Following the precedent of McCulloch v. Maryland (1819), the federal courts have usually agreed with Congress.
Constraining the States
The Constitution clearly reduces the power of the states. For example, in Article I, section 10, the states would no longer have the kind of autonomy they enjoyed under the Articles of Confederation. They could not conduct their own foreign policy, coin money, tax each other, impair contracts, or pass ex post facto laws. If there were any doubts that the power balance in the new federal system would be tilted in the central government’s favor, one need only to read the supremacy clause in Article VI: “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; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Using this clause and the precedent-setting McCulloch v. Maryland (1819), the Supreme Court has repeatedly struck down state laws that conflicted with federal laws, treaties, or the Constitution. In such disputes between a state law and a federal law, the state’s only real chance of winning is to show that the federal law violates the U.S. Constitution. A current example that has not yet erupted into a legal battle centers on state initiatives that allow doctors to prescribe or recommend marijuana to their patients. These state laws are in direct violation of federal laws that consider marijuana so dangerous that doctors could not prescribe it, or even—for many years—study whether it was medicinally useful. Could states prove in court that such federal laws are unconstitutional? This and many other issues hint at the “messiness” of federal systems, which can cause people a great deal of confusion because issues are often decided in multiple political venues.
Since we’ve mentioned the importance of McCulloch v. Maryland (1819) twice now, perhaps we should pause a minute and make sure we understand that important early Supreme Court case. In 1816, the federal government chartered the Second Bank of the United States. The states did not like the Bank of the United States competing with state-chartered banks. So, the state government of Maryland placed a prohibitive tax on “any bank not chartered within the state” in an attempt to drive the Bank of the United States out since it was the only bank operating in Maryland that had not been chartered there. Instructed by his superiors, James McCulloch, Bank of the United States Baltimore branch cashier, refused to pay the tax. Maryland brought the case to tax to a state court and won—and even won on appeal—but lost when McCulloch appealed those lower decisions up to the Supreme Court. Two important issues were contested in McCulloch v. Maryland (1819):
- Since “establish a national bank” is not one of the enumerated powers in the Constitution, does Congress even have the ability to do that?
- Can a state tax an activity of the U. S. government?
Regarding McCulloch v. Maryland (1819), Chief Justice John Marshall, clarified for a unanimous Court the Necessary and Proper Clause’s meaning and its relationship to the enumerated powers. He wrote “let the ends be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adopted to that end, which are not prohibited, but consistent with the letter and spirit of the constitution, are constitutional.” In other words, if Congress can legitimately tie its new exercise of power to one of the enumerated powers and if the new exercise of power is not expressly forbidden in the Constitution, then it is constitutional. Thus, it was constitutional for Congress to establish a Bank of the United States. Then Marshall went on to write that the “power to tax is the power to destroy,” and that the Supremacy Clause meant that the states could not nullify and destroy legitimate exercise of federal authority. Maryland lost, and both the Necessary and Proper Clause and the Supremacy Clause were clarified in ways that expanded the central government vis-a-vis the states.
Separation of Powers and Checks and Balances
One can hardly fail to notice that the Constitution is organized according to a principle known as the separation of powers. John Locke argued for the separation of the legislative and executive powers. In The Spirit of the Laws (1748), legal theorist Baron de Montesquieu similarly argued that governmental power could be divided into three types and that they ought to be separate:
- Legislative—the power to make law: the Congress
- Executive—the power to enforce law: the Presidency
- Judicial—the power to interpret law, both generally and in particular cases: the Supreme Court and lower federal courts
Note that the Constitution does not set up a hierarchy with the president at the top, nor does it give a president “the right to do whatever I want,” as President Trump once famously claimed. (6) The Congress, the Presidency, and the Supreme Court are coequal branches of the federal government. A central tenet of good governance is to structure the political institutions so that different people from different constituencies would perform the legislative, executive, and judicial functions. The American founders expressly agreed with this approach to governance. On November 15, 1775, John Adams wrote this to Richard Henry Lee: “A Legislative, an Executive and a Judicial power, comprehend [encompass] the whole of what is meant and understood by Government. It is by balancing each one of these Powers against the other two, that the Effort in human Nature towards Tyranny can alone be checked and restrained and any degree of Freedom preserved in the Constitution.” (7)
According to its advocates, separation of powers provides two benefits. First, it tends to slow legislation down, because of the squabbling between the naturally egotistic people who occupy legislative, executive, and judicial positions. Democracy requires time for deliberation, argumentation, and compromise. Legislative speed is a virtue only in rare crisis situations. The second advantage of separation of powers is that it helps avoid tyranny. Much like R.M.S. Titanic, which was supposed to be unsinkable due to its compartmentalization, a government of separated powers can stay afloat even though tyrannical leaders take over one branch. Presumably, the other two institutions would stand up for liberty. Of course, as the Titanic’s maiden voyage demonstrated, any ship will sink if you poke enough holes in it. Moreover, the United States has only three compartments, and they are functionally related. A dictator wannabe as president is bad enough, but presumably they would have partisan supporters in Congress and would be able to lace the federal courts with judges who are keen to secure and expand his tyrannical powers.
Separation of powers is not without its detractors. In fact, most other economically developed countries that purport to be democracies have rejected separation of powers in favor of parliamentary systems that dispense with bicameral legislatures and meld executive and legislative powers. This typically takes the form of a prime minister who is simultaneously a sitting member of the legislature and also head of what we in the United States would call the executive branch. As political scientist Douglas Amy argues effectively, the main problem with separation of powers is the frequency of paralyzing gridlock that undermines the power of ordinary people and serves the interests of corporations and the wealthy who want to block government initiatives. (8) Even when gridlock can be overcome, the resulting policies are inevitably compromises that are weaker more fragmented than they should be. Professor Amy suggests that America’s fragmented and weak anti-poverty measures are a classic example of separation of powers at work. We might also add America’s convoluted and overly expensive healthcare system as a casualty of separation of powers.
Not only does the Constitution separate governmental powers, but it adds a twist in the form of checks and balances. The three separate government institutions are allowed to meddle in each other’s business. The term “checks and balances” does not appear in the Constitution, but the practice is woven throughout the document in a very intentional and strategic fashion. Key checks and balances include the following:
- Congress passes legislation, but the president can veto it.
- Congress can override the president’s veto with a super majority in both chambers.
- Legislation passed by Congress and signed by the president can be declared unconstitutional by the Supreme Court.
- Presidential or executive branch actions can be declared unconstitutional by the Supreme Court.
- Supreme Court decisions can be undone if Congress and the states pass a constitutional amendment.
- Presidential appointments to the judicial and executive branches require Senate approval.
- Treaties signed by the president require Senate approval.
- The president can pardon those convicted by the federal courts.
- Congress can impeach and remove executive officials and federal judges from office who violate the law.
Finally, we should note that as a check on the president’s commander-in-chief power, the Constitution mandates that only Congress can declare war. This is one check that has not worked particularly well. Congress has not declared war since World War II, even though presidents have directed the massive use of military force on numerous occasions including Korea, Vietnam, Grenada, Panama, the Persian Gulf War, and the invasion of Iraq. After the 9-11 attacks, Congress passed a very broad Authorization for the Use of Military Force (AUMF) against terrorists and nation-states that might be aiding them. The AUMF, which has no reporting requirement to Congress, was so broad and open-ended that it was used by the Bush, Obama, and Trump administrations to justify the using military force in the Middle East, Africa, and Asia decades after it was passed.
What if . . . ?
What if you were transported back in time as a “consultant from the future” to the attendees at the Constitutional Convention? What would you tell them about American history that could better inform them as they write the Constitution? What events would you highlight for them? Why?
- Thomas Paine, Common Sense. 1776.
- Samuel Johnson, Taxation No Tyranny: An Answer to the Resolutions and Address of the American Congress. 1775.
- David Brian Robertson, The Original Compromise: What the Constitution’s Framers Were Really Thinking. New York: Oxford University Press, 2013. Page 104.
- Gary Wills, “Negro President.” Jefferson and Slave Power. Boston: Houghton Mifflin, 2003. pages 1-13. Paul Finkelman, “Three-Fifths Clause: Why Its Taint Persists,” The Root. February 26, 2013.
- Kim Wehle, How to Read the Constitution and Why. New York: HarperCollins, 2019. Page 64.
- Christina Zhao, “’Article 2’ Trends after Trump Falsely Claims It Grants Him Unlimited Powers as President: I can ‘Do Whatever I Want’,” Newsweek. August 24, 2019.
- Quoted in Danielle Allen, Our Declaration. A Reading of the Declaration of Independence in Defense of Equality. New York: W. W. Norton, 2014. Page 58.