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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 defence 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 defence, 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
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