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PART 4: Basic Constitutional Concepts: Federalism, Separation of Powers, and Rule of Law - James McClellan, Liberty, Order, and Justice: An Introduction to the Constitutional Principles of American Government [1989]

Edition used:

Liberty, Order, and Justice: An Introduction to the Constitutional Principles of American Government (3rd ed.) (Indianapolis: Liberty Fund, 2000).

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


PART 4

Basic Constitutional Concepts: Federalism, Separation of Powers, and Rule of Law

POINTS TO REMEMBER

1. The American system of federalism divides political power between two levels of government. Those powers not delegated to the Federal government are reserved to the States. Article I of the Constitution specifies the delegated and implied powers of Congress, and also enumerates those powers that are prohibited to both Congress and the States. Some powers of Congress are exclusive; and others are concurrent, meaning they are shared with another branch or with the States.

2. The States have certain obligations to the Federal government and to each other, and the Federal government has certain obligations to the States. Most of these obligations that each owes the other are framed in Article IV of the Constitution.

3. Formal changes of the constitutional structure must be approved by three-fourths of the States through the amendment process, which is provided by Article V of the Constitution. Every amendment that has been added to the Constitution was proposed by a two-thirds vote of Congress. The States may initiate amendments but have never exercised this power. Congress decides whether the amendment shall be ratified by the State legislatures or by the States meeting in convention. All but the 21st Amendment have been ratified by the State legislatures.

4. The American system of separation of powers is not a pure separation of powers. Although the officeholders in each branch are separate and distinct, the functions overlap. This overlapping of functions forms an elaborate check and balance system, allowing each branch to check the encroachments of another. In this way the separation of powers is actually maintained.

5. The American constitutional system is based on rule of law, the Constitution itself being the supreme law. Thus in the United States, no man or government or branch of the government is above the law. If the Constitution is to be changed, only the people can change it—and then only by the amendment process.

6. Although the President is powerful and independent, and is charged with the duty of executing the laws, he is not above the law. Limitations on his power derive from the method by which he is elected by the electoral college and from the checks on his exercise of power by Congress and the Supreme Court.

The Constitution of the United States provides a framework of political and legal institutions. Within this framework are certain general concepts or ideas about freedom and political order. Although they are not explicitly stated in the Constitution, they nevertheless provide the theoretical structure upon which the seven articles of the original document are built. An understanding of these unwritten concepts is essential to an understanding of the meaning and purpose of the Constitution. The first of these is the concept of federalism. The American federal union is neither a centralized political structure nor a mere league of independent States. The federal system of government embodied in the Constitution is designed to limit power by dividing it.

The second is the concept of the separation of powers. This is intended to prevent a concentration and abuse of power by one branch over another. By separating the personnel and functions of government, the Constitution provides a mechanism that facilitates the achievement of Rule of Law.

The third is the concept of the rule of law. This is sometimes expressed as “a government of laws and not of men.” All people who hold political authority are subject to the law of the land, and their public actions must conform to the Constitution and to certain principles of law.

All three of these concepts restrain the Federal government’s powers. The Constitution, in short, set up a powerful general government; but it also established effective checks upon the exercise of power through a carefully designed system of constitutional devices.

A.

Federalism

A federal system of government is one in which political authority is divided between a general or national government and regional (or “state”) governments. The general government carries on the military and diplomatic functions of the country and deals with many other matters of national concern. The state or regional governments carry on the public activities that most directly affect the citizens, such as police and fire protection. In a federal political structure, the state governments are not mere provincial agencies of a central government. For under federalism, the state or regional governments have their own constitutional powers that the general government must recognize and respect. On the other hand, the state governments in a federal system have less independence than do states that are members of a confederation or league.

The governmental system of the United States is the earliest example of federalism in the modern sense of that word. Nowadays, when the word federalism is used throughout the world, it means a system like that of the United States, with political authority divided between two spheres of authority. The American federal system is an extremely complex pattern of interrelated processes simultaneously at work, a blend of independence and interdependence. Federalism may be defined as a system of government in which there are two levels of authority, national and state, operating side by side, with each level generally supreme within its sphere of power. K. C. Wheare, a noted British authority on federalism, defines the federal principle as a “method of dividing powers so that the general and regional governments are each, within a sphere, coordinate and independent,” and further, “that each government should be limited to its own sphere and, within that sphere, should be independent of the other.” To this we should add that federalism requires a written constitution. The reason is quite simple: there must be a fundamental law delineating the two spheres of authority, lest neither sphere will know the limit of its powers. If the central government acquires too much power, it may swallow up the weaker states, creating a unitary form of government. If, on the other hand, the state governments become too powerful, the union may be reduced to a league or confederation, or be abolished altogether.

Now the Framers of America’s Constitution did not create a federal pattern of politics because they had read about something of the sort in an old book. No, American federalism resulted from circumstances in the United States in the year 1787 rather than an abstract theory. True, many of the Framers saw that a weak confederation, under the Articles, was an insufficient system of government. And they perceived that centralized or unitary government (then the pattern in nearly all European states) had its grave faults. But the primary reason why the Framers chose a federal system was that the federal arrangement was just what the American people wanted, and needed, in a very practical sense, in 1787. Federalism as a theory of government, in other words, emerged after the Framers wrote the Constitution.

One alternative to federalism was simply to continue the arrangement established under the Articles of Confederation, and a good many Americans might have been content enough to do so. But this feeble confederation had major economic disadvantages and scarcely could defend itself against foreign enemies.

The other alternative to federalism was a unitary, or centralized, form of government, with all real power concentrated in the nation’s capital. Turgot, Condorcet, and other French political thinkers of the 1780s were surprised and almost indignant that the Americans had not formed such a political structure when they won their independence from Britain. But the American people, having thrown off the central power of the King-in-Parliament, were not disposed to establish some new central authority to tell them what to do. Besides, the great majority of American citizens were warmly attached to their State and local governments. They feared that consolidation would diminish their local and personal freedoms.

What the Framers agreed upon, then, was a satisfactory compromise between the people who desired a strong general government and the people who wanted to preserve State and local powers of decision. Under the federal arrangement—something new in human society, at least on so large a scale as in the United States—the several States were still called “sovereign,” as if there were no higher political power above them. But through the federal arrangement, there was created a general government with vastly superior powers. The Constitution allocated some powers to the Federal government, and guaranteed that all other political powers would be reserved to the States or to the people in those States. This division of powers, or “dual sovereignty,” though hotly debated during 1787–1788, was accepted by the States when they ratified the Constitution.

Powers Delegated to Congress

To understand the federal system of government set up by the Constitution, we must look first at Article I, Sections 8, 9, and 10 of that document. Sections 8 and 9 assign some powers to the general government, and deny that general government other powers; Section 10 denies certain powers to the State governments.

By these provisions, the Congress—that is, the Federal government—is authorized to “lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States.” Thus the new Constitution gave the National Government money-raising power that the government of the Articles of Confederation never had enjoyed.

Many other powers were delegated by the States to Congress by the Constitution—powers that we now take for granted, but which in 1787 made many, and perhaps most, Americans very uneasy. As John Quincy Adams said in 1839, the Constitution “had been extorted from the grinding necessity of a reluctant nation.” Independent of Britain for only a few years, the citizens of the new Republic did not relish the notion of surrendering State sovereignty, even some of it, to a national government. Indeed, even some villages and townships thought of themselves as sovereign, free from any higher political authority. They resented the interference of even State governments. So it is not surprising that the powers given to Congress by Article I of the Constitution alarmed some of the men who had been foremost in the struggle against British rule.

Section 8 of Article I also authorized the Congress to borrow money, regulate foreign and interstate trade, coin money, establish post offices and post roads, establish Federal courts, declare war, raise armies and build navies, put down rebellions, organize an armed militia within the States, and do all things “necessary and proper” to put into effect these and certain other specified powers. Today, nobody is surprised that the Federal government establishes rules for naturalization and bankruptcy, punishes counterfeiters, grants copyrights and patents. Yet until the Constitution was ratified in 1788, the government of the United States performed no such functions.

Powers Denied to Congress

These great grants of power to the Congress had to be balanced by certain strong restraints on federal authority if the people of the thirteen States were to be persuaded to ratify the Constitution. So Section 9 of Article I sets definite limits on what Congress may do.

The first-listed restraint, which seems odd to us today, is that Congress might not forbid the importation of slaves until 1808. This temporary provision is followed by guarantees of ancient rights and privileges derived from the British common law and constitution. The first of these is the privilege of habeas corpus, a Latin term meaning “you have the body.” A writ of habeas corpus is an order issued by a court to an arresting officer, directing him to bring a prisoner before the court. If confinement was improper, the judge will order his release. The writ of habeas corpus, one of the most ancient liberties inherited from England, is wholly procedural in character and defines no rights. But it offers persons charged with a crime one of their most important protections against illegal arrest and confinement, and serves as an important check on the illegal usurpation of power by the executive. The writ has been used in England and the United States to test the legality of virtually any confinement, including detention by military authorities. Under the Constitution, Congress may suspend this privilege in times of rebellion or invasion. During the Civil War, President Lincoln suspended the writ without Congressional authorization, and was much criticized for his action.

The second guarantee is protection against bills of attainder. This is a legislative act designed to punish a particular individual without a jury trial. Congress can determine what conduct shall be considered a federal crime, but no one can be punished until after a jury trial. This guarantee is an important check on the illegal usurpation of power by the legislature. The prohibition was originally adopted in England to outlaw the practice of legislative punishment, whereby individuals could be condemned to death by a special act of Parliament. Legislative acts inflicting lesser punishments are called bills of “pains and penalties.” As interpreted by the Supreme Court, the prohibition against bills of attainder extends to all legislative acts, “no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial.”

The third guarantee, which is also a check on the legislature inherited from English law, is protection against ex post facto laws. These are retrospective or retroactive laws which impose criminal penalties for acts that were not illegal when they were performed. Over the years, the Supreme Court has interpreted the prohibition to include any law which operates to the disadvantage of an individual accused of a crime committed before the law was passed. This includes laws that change the punishment and inflict a greater penalty than the one affixed to the crime when it was committed, and laws that alter the rules of evidence so as to permit less or different evidence for a conviction than was required at the time the crime was committed. The ex post facto clause was apparently intended by the Framers to apply to retrospective laws devaluing property rights, but very early in our history the Supreme Court held in Calder v. Bull (1798) that the restriction applies only to criminal laws.

Section 9 also forbids Congress to levy direct taxes unless in proportion to population; to tax exports; or to favor the ports or shipping of one State over the ports or shipping of another State. Federal officials are forbidden from drawing money from the Treasury except in accordance with Congress’s appropriation of funds. Finally, Section 9 forbids Congress to grant titles of nobility. Nor can anyone connected with the Federal administration accept gifts, or titles, or other favors from foreign governments without Congressional consent.

Powers Denied to the States

The list of what State governments might not do under Section 10 was quite as specific as the longer list of prohibitions upon the Federal government. No State may make foreign alliances or treaties; license privately owned ships to prey upon enemy vessels (a power held under Section 8 by the Federal government); coin money or issue paper money, or otherwise impair the Federal government’s monopoly of money-issuing; pass bills of attainder or ex post facto laws; interfere with contractual obligations; or grant titles of nobility.

Nor may any State’s legislature—unless granted the consent of Congress—tax exports or imports, except for incidental expenses of inspection; and even should Congress permit such export-import taxes, the money collected must go into the Federal treasury. Neither may any State, without the express consent of Congress, maintain troops or naval vessels, enter into an agreement with any other State or with a foreign power, or go to war unless actually invaded and in imminent danger.

These limitations aside, the State governments could do much as they liked, so far as the Federal Constitution was concerned. It was up to the State constitutions to provide restraints upon political power at the State level, should the people of the States so choose.

The Division of Powers

These provisions of Article I promptly produced certain beneficial and practical effects. They gave the new general government essential powers that were sorely lacking in the old Confederation government; and they curtailed certain powers formerly asserted by the State governments that sometimes had endangered the Union itself.

Still more important, perhaps, in the long run, was Article I’s creation of an enduring federal design of government. That federal system contrived in 1787 still is functioning in the United States—even though the powers of the Federal government have since grown at the expense of the State governments.

In effect, after 1788 the American nation would benefit from two coordinate governments, each with its own legislative, executive, and judicial branches. The general or Federal government would concern itself with matters of high national importance, chiefly diplomacy, the common defense, international and interstate commerce, issuing of money, management of the nation’s western territories, ensuring a republican form of government in all States, and performing other public functions that no State could undertake adequately in isolation.

The State governments—thirteen of them to begin with, but soon several more—would carry on the administration of justice within their own boundaries, protecting people and property, maintaining the courts of law that dealt with most litigation, overseeing local governments, maintaining roads, transportation, and communications, and in general protecting the health, safety, and welfare of their citizens through the exercise of what is called “the state police powers.”

Thus the State governments were in many ways independent of the Federal government. Ordinarily the actions of the Federal organization and the actions of the State governments would not conflict because they operated on different levels of public policy. Nevertheless, a good many American political leaders foresaw difficulties in the relationship between the national government and the States.

For most Americans in our early republic, the idea of a national capital in some remote city seemed alien. Their hearts did not warm to it. There were marked differences among the States, and also between North and South, East and West—contrasting patterns of culture, economic activity, social institutions, customs, manners, speech. So we ought not to be surprised that many Americans’ first loyalty was to their State, rather than to the Federal union. The really surprising thing is that, despite this affection for one’s State and one’s local community, the people of the thirteen original States did assent, if reluctantly, to the federal structure set up by the new Constitution.

Their assent was reluctant because many of them could perceive that the autonomy, or self-government, of the States must be diminished in a federal system. This was because the Federal government was authorized by the Constitution to operate directly upon the citizens of every State, in a number of ways, whether or not a State government might agree with Federal policies. That is, the Federal power must prevail over State power when the Federal government is exercising one of the enumerated powers specified in the Constitution, usually in Article I.

Most enumerated powers are also called delegated powers because they originated in the States and were delegated or assigned by the States to the national government. In addition to enumerated powers, Congress also possesses under Article I, Section 8, by means of the “Necessary and Proper” Clause, certain implied powers. Article I, Section 8, Clause 18 provides that Congress shall have, in addition to the preceding enumerated powers, 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.” Congress was given, for example, the enumerated power to regulate commerce among the States. Through the Necessary and Proper Clause, Congress therefore might regulate the shipment of goods from one State to another, if it could be demonstrated that this was a necessary and proper exercise of its power to regulate interstate commerce generally. The Necessary and Proper Clause, it may thus be seen, expands the enumerated powers of Congress, and for that reason is also referred to as the “elastic clause.”

But the clause does not give Congress the implied power to make laws for any purpose whatever—only for the purpose of executing its enumerated powers and “all other powers vested by this Constitution in the Government of the United States or in any department or officer thereof,” meaning the President and the Federal courts. Congress’ implied powers, therefore, are not limited to the execution of its own enumerated powers. By virtue of this “all other powers” provision, Congress has the implied power to share in the responsibilities of other departments. It is under the authority of this provision, for example, that Congress passes laws to implement treaty obligations of the United States and to organize the Federal judicial system. Accordingly, the Necessary and Proper Clause confers important and far-reaching powers on Congress; and by giving Congress a voice in the affairs of the other branches, it also plays a key role in the check and balance system that will be examined later.

It should also be noted that each house of Congress possesses additional powers that are not always clearly specified in the Constitution. These are powers inherited from the English Parliament and the early State legislatures, and thus are called “inherited” powers. Under certain circumstances, for example, each house can exclude persons from its membership. Other important inherited powers include the power to conduct investigations, to subpoena witnesses, and to judge the qualifications of members.

Taken together, the powers of Congress may be classified as: (1) enumerated or delegated, as seen in Article I, Section 8; (2) implied, as seen again in Article I, Section 8; (3) prohibited, as seen in Article I, Section 9; and (4) inherited, as seen in Article I, Section 5. These powers can be further subdivided as exclusive and concurrent. An example of an exclusive power of Congress is the power to declare war. Thus the President cannot, on his own authority, declare war against another country, though he can, as Commander-in-Chief of the armed forces, participate with Congress in making war against a foreign enemy. The war-making power is, in fact, a concurrent power, one that Congress shares with the President. Congress also shares certain powers with the States. Its power to levy an income tax, for example, is a concurrent power because the States can also levy such a tax.

All other powers are commonly called reserved or residual powers. These are the unspecified powers that the people or the States did not delegate or surrender to Congress or the general government, and reserved to themselves. This reservation of various powers to the States was reaffirmed in the Tenth Amendment to the Constitution, which provides that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or the people.” The Tenth Amendment is a rule of interpretation not only for the Federal courts, but also for Congress and the President. At one point in our history, the reserved powers were often regarded as the exclusive powers of the States. As such, they served to limit the powers of the Federal government. Article I, Section 8, for example, empowers Congress “to regulate commerce among the several States,” suggesting, therefore, that local commerce, wholly within a single State, could not be regulated by the Federal government. The Supreme Court has rejected this interpretation, however, and the Tenth Amendment is no longer interpreted by the courts as a limitation on Federal power. Today, it usually makes no constitutional difference whether an act of Congress governs an institution or activity otherwise reserved to the States. For this reason, federalism has weakened over the years, and much power formerly controlled by the States has been shifted to the central government. This reallocation of power is known as the centralization or nationalization of power, a phenomenon that is praised by some and criticized by others.

The Supremacy Clause

In reviewing the relationship between the Federal and State governments, we should also note the significance of the “Supremacy Clause” of the Constitution. Article VI provides that,

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.

This key provision, rarely found in other constitutions, establishes the supremacy of the Constitution over all Federal laws, State constitutions, and State laws. It also establishes the supremacy of Federal laws and treaties over State constitutions and State laws, so long as they are made in pursuance of (in conformity with) the Constitution and are therefore constitutional. If an act of Congress is constitutional, and conflicts with a State constitution or law, the Federal law prevails. Thus, a provision of a State constitution or law, even if it conforms to the United States Constitution, may nevertheless be set aside if it conflicts with an act of Congress or a treaty. Within the field of its powers, the powers of the national government are supreme, and the State courts are bound to uphold this supremacy.

Lodging so much power in the Federal government was viewed with suspicion by Samuel Adams of Massachusetts, by Patrick Henry of Virginia, and by many other American leaders. James Madison endeavored to assure such doubters that in truth the Constitution recognized and protected the sovereignty of the States in most matters. Writing in Federalist No. 45, while the States were debating ratification of the Constitution, Madison argued that the State governments would “enjoy an advantage” over the Federal government, commanding popular loyalty more than could Federal officials at the national capital. A State’s power, Madison pointed out, “extends to all objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvements, and prosperity of the State.” History has shown, however, that it is the Federal government, not the States, which dominates the American political system.

National and State Obligations

Up to this point, we have discussed only the right of the Federal government to govern the affairs of the nation, and the right of the States to govern their own affairs. Our examination of federalism would be incomplete, however, if we failed to include a discussion of their obligations. Under the Constitution, the Federal government incurs certain obligations to the States; and the States in turn have obligations both to the Federal government and to each other. Many of these obligations are contained in Article IV of the Constitution.

Obligations of the National Government to the States

This provision, sometimes known as “the federalism article,” requires the national government to guarantee a republican form of government to every State, to protect the States against invasion, and, upon request, to protect them against domestic violence. The term “republican government” is not defined in the Constitution, but the Framers meant a representative form of government, as distinguished from a direct democracy or monarchy. This guarantee shows the high regard the Framers had for representative government and their concern, almost a decade after the Revolution, that the people might again wish to be governed by a monarch.

The Constitution of 1787 imposes no similar obligation on the States to establish a written constitution or a bill of rights, or to protect civil liberties, except those specified in Article I, Section 10. Federal involvement in civil liberties disputes between a State and its citizens did not commence until the adoption of the Thirteenth, Fourteenth, and Fifteenth Amendments (the “Reconstruction Amendments”) after the Civil War. Even then, the extent of Federal activity was limited primarily to protecting economic rights and the rights of the newly freed slaves. Not until the mid-twentieth century did the Federal government, principally through the courts, become embroiled in civil liberties disputes between a State and its citizens involving such rights as freedom of speech and religion. Ironically, the Supreme Court has never interpreted the meaning of “republican government” and has taken the position that it is up to Congress to decide whether a particular State government is “republican” in character. Nor has Congress offered a definitive interpretation; and the Guarantee Clause, as it is known, is largely dormant.

Section 3 of Article IV places additional obligations upon the Federal government in the interest of State sovereignty. It provides that a new State cannot be created from a pre-existing State, from a combination of States, or from parts of States, unless the legislatures of the States concerned and also Congress give their consent. Five States—Vermont, Kentucky, Tennessee, Maine, and West Virginia—have been formed within the jurisdiction of other States and with the requisite consent. This provision also establishes what is called the “doctrine of equal footing,” the principle being that Congress may not discriminate against one or more States and must treat all States as equals. Broadly speaking, every new State is entitled to exercise all the powers of government which belonged to the original States of the Union, and it must be admitted to the Union on an equal footing.

At the same time, Clause 2 of Section 3 makes it clear that Congress has the power to regulate or dispose of territories, public lands, or other property belonging to the United States government. No State can tax federally owned land within its borders, and Congress has full legislative power to govern the affairs of territories, including all subjects upon which a State legislature might act.

Obligations of the States to the National Government

The States’ obligations to the national government are found in a number of constitutional provisions. Under Article I, Section 4, the States are obliged to hold elections for Senators and Representatives, and to prescribe the time, places, and manner for such elections. Congress can alter such regulations, however, except as to the places of choosing Senators. Article II, Section 1, which confers the executive power, requires the States to participate in the election of the President. The States are required to select presidential electors, but are free to choose them in any manner the State legislature sees fit. In the early history of the United States, electors were sometimes elected by the legislatures, by the voters in certain districts, by the voters in the entire State, or by a combination of these methods. Today, however, all presidential electors are elected by the voters on a statewide ticket. These electors cast their ballots in the States; the ballots are then transmitted to Congress, where they are counted.

Obligations of the States to Each Other

Obligations that the States have to each other, also specified in Article IV, are numerous, however. Section 1, applying especially to State court decisions, contains the Full Faith and Credit Clause. This provision requires each State to honor and enforce the Court judgments of other States. The requirement is not absolute, however, and under certain conditions, notably in cases involving divorce, a State can refuse to give full faith and credit to another State’s court decree.

Under Section 2 of Article IV, the States are prohibited under certain circumstances from discriminating against out-of-state citizens. Although as a general rule they must extend the same privileges and immunities to other citizens that they extend to their own, this provision has been interpreted to mean that the States are not required to give them special privileges, particularly regarding the use and enjoyment of State property. Thus a State is free under this clause to charge out-of-state residents a higher fee than that paid by State residents for fishing and hunting licenses, or for tuition at a State university. On the other hand, a State is prohibited from denying out-of-state citizens access to its courts.

Section 2 of Article IV also provides for the extradition or return of fugitives. If a person commits a crime in one State and is caught in another, the State from which he fled may demand from the governor of the State which holds the fugitive that he be returned. In nearly all cases, escaped prisoners and fugitives charged with a crime are returned, but there is no judicial method of compelling extradition. State governors have on occasion refused to extradite on the ground that the fugitive might not receive a fair trial or has been rehabilitated. The other clause in Section 2 calling for the return of fugitive slaves was nullified by the Thirteenth Amendment, which abolished slavery.

The Role of the States in the Amendment Process

This brings us finally to Article V, which prescribes the method for amending the Constitution. Here the States play a crucial role because no formal change of the Constitution is possible without their assent. The States have the right under Article V to initiate amendments and approve their adoption. An amendment can be proposed by a two-thirds vote of both houses of Congress or by a national convention called by Congress at the request of the legislatures of two-thirds of the States. Every amendment added thus far to the Constitution, however, was proposed by Congress. The Constitution asserts that, in the event the States call for a convention, Congress “shall” do so. But there is no way to force Congress to act, and it would seem in this instance—as in many others—that the Framers relied upon the good faith of Congress for the observance of this requirement.

Once an amendment has been proposed, it must be ratified by the legislatures of three-fourths of the States or by a special convention of three-fourths of the States. Congress decides which method of ratification is to be used. Except for the Twenty-First Amendment, which repealed the Eighteenth, every amendment has been ratified by the State legislatures.

From the foregoing discussion, it may be seen that the States occupy a commanding position respecting the amendment process. They have the final say on whether the Constitution shall be amended. In this respect, they exercise sovereignty over the nation. This not only affords them an opportunity to protect their interests, but also serves as an ultimate check on the powers of the Federal government. Some amendments, in fact, have nullified decisions of the Supreme Court. For these reasons Article V of the Constitution is regarded as the arch of federalism—the provision that strengthens the States and protects them from being swallowed up by the Federal government. The American republic is a democratic republic because it is based on government by the people. But the people govern through their States, not en masse. In this sense they share sovereignty with the States. The American republic is therefore both a democratic republic and a federal republic.

The Federalism Factor

Upon close examination, it will be seen that the entire Constitution is actually honeycombed with provisions designed to protect the residual sovereignty and interests of the States and to give them influence in the decision-making process at the national level. To measure the federalism factor, it is necessary not only to analyze the powers specifically granted and denied to the national government, but to be mindful of those that are by implication reserved to the States—to “read between the lines,” as the saying goes.

Article III of the Constitution defines the judicial power of the United States, which extends to nine classes of cases and controversies under Section 2 of that Article. Those classes of cases that are not specified are, by implication, left for resolution by the State tribunals. Section 2, for example, states that the judicial power shall extend to controversies between citizens of different States, but it does not declare that it shall also extend to controversies between citizens of the same State, except in those instances where they are claiming lands under grants of different States. Thus if two citizens of Utah have a contract dispute, it is clear from Article III of the Constitution that the Federal courts have no authority to settle the controversy because the judicial power does not extend to controversies between citizens of the same State in cases involving contracts. As a general rule, then, private disputes between citizens of the same State are settled in the State courts, even though the Constitution is silent on this question.

There are exceptions to this rule, one of the most notable being the Civil Rights Act of 1964. Under this major civil rights legislation, for example, a private dispute between the proprietor of a restaurant and a customer, involving the question of racial discrimination, may be taken to a Federal court because the Act prohibits “any restaurant” from denying a person “the full and equal enjoyment” of its “goods [and] services … on the ground of race, color, religion, or national origin.” The Act is based on the power of Congress to regulate commerce among the States and presumes that all restaurants are engaged in interstate commerce. The dispute is treated not as a private dispute but as a controversy between the United States and the proprietor. It may be tried in a Federal court because the Act gives Federal district courts jurisdiction over the case. The Federal judicial power extends to “controversies to which the United States shall be a party.”

Conceivably, if not in actuality, Congress can overshadow or circumvent the reserved powers of the States through its delegated and implied powers. It may thus be seen that if carried to extreme a broad interpretation of Congress’s delegated powers could result in the virtual annihilation of the reserved powers of the States. Where the line separating Federal and State power should be drawn has been a source of constitutional controversy since the earliest days of the American Republic. This is because the powers of the Federal government are not spelled out in every particular and the powers of the States are not spelled out at all. For guidance in interpreting the constitutionality of Federal laws, members of the Supreme Court have understandably turned from time to time to the debates of the Federal and State ratifying conventions of 1787–1788, the essays in The Federalist, and other original sources in order to gain a better understanding of the Framers’ intentions. Although most provisions of the Constitution are clear and precise, and may be interpreted from the text itself, the nebulous, unwritten reserved powers of the States constitute a gray area of constitutional law that has always been a source of disagreement and debate in American law and politics.

Article II of the Constitution, which establishes the office of the President and confers the executive power, represents another example of how the Framers wove federalism into the constitutional fabric. Although we do not ordinarily think of the executive branch as part of the federal design, it is nevertheless the case that the States play an important role in the election of the President. This is because of the Electoral College.

The manner in which the President shall be elected is stipulated in Section 2 of Article II. It provides that each State shall decide for itself how it shall choose electors, and that it is entitled to a number of electors that is equal to the number of Representatives and Senators it sends to Congress. The electors of each State then meet in their respective States to name two candidates for the presidency, one of whom must be from a different State. Then, when all of the nominations from all of the States have been tallied, the candidate with a majority of the electoral votes is declared President and the runner-up is chosen Vice-President. In the case of a tie, the House of Representatives elects one of the two candidates as President; and in case no candidate has a majority, then the House of Representatives shall select the President from a list of the five candidates who have received the highest number of votes. If the House is called upon to elect the President, the votes are taken not by the individual, but by the States, with each State receiving one vote.

This system lasted only until the election of 1800, when Thomas Jefferson and Aaron Burr each received the same number of electoral votes. It had been generally supposed that Burr really was a candidate for the vice presidency. But when he realized the possibility of being made President, Burr seized the opportunity—and was defeated only with difficulty. After that, the Twelfth Amendment (1804) eliminated the possibility of such a situation by specifying that the electors “shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice President.”

The Electoral College itself, surviving the Twelfth Amendment, has endured to the present day, and the President must be chosen by the vote of each State, rather than by a national popular vote. This means that each State continues to choose a number of electors equivalent to the number of U.S. Senators and Representatives that that particular State sends to Congress. Usually, though not in all presidential elections, the national popular vote for candidates and the vote of the Electoral College would have the same result; but it remains theoretically possible, under peculiar circumstances, for a candidate to be chosen President by receiving a majority of Electoral College votes though a minority of the popular vote.

Why so elaborate a scheme for choosing the President? Because the Framers desired to secure the independence of the President from both the Congress and the fickle mass of citizens. They wished to select for the presidency the ablest leader in the country—an individual who would not need to be subservient to the congressional majority in order to be elected, and at the same time would not need to be a demagogue, making extravagant promises to the voters in every State in order to get elected. The way to secure such an admirable President, they thought, was to have him chosen neither by Congress nor directly by the voters of the several States, but to select a few able and honest men in every State, make them electors, and have this small body of politically prudent people (the Electoral College) choose the best possible chief executive for the United States.

Why did this plan fail to work? Because in the several States the voters demanded that candidates who wished to be chosen electors commit to a certain individual for President. Thus the would-be electors felt compelled to name their choice for the presidency—and presently found themselves pledged to vote for that particular man. So the Electoral College has never worked precisely as it was supposed to, and the names of the electors do not even appear on the ballot in presidential elections. It remains true that an elector could cast his vote as a member of the Electoral College for a presidential candidate other than the one to whom he had nominally pledged himself; however, that rarely happens. Most American voters today are probably unaware that the Electoral College still exists.

From time to time, some members of Congress have argued that the Electoral College is outdated and should be abolished. Proposed amendments to the Constitution calling for the direct election of the President have repeatedly been rejected, however, and the Electoral College still enjoys wide support. Defenders of the Electoral College contend, in particular, that the present system strengthens federalism by making the States the crucial political units in the selection of the President. The direct-election proposals would change this by scuttling the nomination conventions that give State and local party leaders great influence in the nomination process, and by making State lines irrelevant in the general election. This in turn would encourage presidential candidates to ignore a broad cross-section of the country and the interests of States with small populations, and to direct their appeal to large industrial areas of the country—an invitation, the Electoral College defenders argue, to majority tyranny and a plebiscitary presidency unrestrained by the two-party system. Such arguments have been sufficiently persuasive to defeat the advocates of change, and the present consensus seems to be that the present system, though imperfect, is preferable to the proposed alternatives.

Perhaps the most important point to be remembered, as the foregoing discussion of federalism illustrates, is that there is more to the Constitution than meets the eye. A reading of the text and wording of the document is merely the first step toward a thorough understanding of its meaning and purpose. This is especially true when we stop to consider the influence of the unwritten and often obscure federalism ingredient of the Constitution. But, as we shall presently see, it is also true of other “silences of the Constitution,” such as separation of powers and rule of law. It is impossible to understand the Constitution without first understanding the principles upon which it is built.

The Advantages of Federalism

What are the advantages of a federal system of government? Here are some that are commonly mentioned:

(1) Federalism enables States or peoples who differ a good deal from one another or have different backgrounds to join together for common benefits, without some of the States or groups being required to obey unquestioningly whatever the largest State or group orders. In this sense, federalism protects minority rights—the rights of communities or whole regions to maintain their customs, their diversity and individuality, their self-rule. It was so with the Federal union of 1787–1788: South Carolina was not required by the Constitution to model itself on Massachusetts, and in turn Massachusetts did not have to adopt the ways of South Carolina. Yet those two very different political communities found it possible to cooperate through the federal republic of the United States on many matters, most of the time, for the following sixty-four years, without resorting to force. Federalism, then, is associated with “States’ Rights” and is regarded as an important means for the preservation of local self-government.

(2) Federalism provides that States or regions can manage their own affairs, rather than being directed by a central autocracy or bureaucracy. A federal structure is particularly necessary to modern representative democracy, especially one so large as the United States. For unless there are political units on a humane scale that are not too big for citizens to understand or share in, “democracy” becomes a mere phrase. Genuine democracy requires that a good many people should participate in public concerns and be governed by representatives chosen from and accountable to the local community. People enjoy a sense of personal safety and security when they are governed by representatives drawn from their own community, who share their values, customs, and mores, and are accessible for consultation, advice, and assistance. It is easier to control a native son, living in the community, than a stranger residing in a distant city. If the United States were a unitary system of government, with all decisions made in Washington, it would be impossible for many Americans to take any part in public affairs and it would be difficult for public officials to understand local needs or to be restrained by the local population. The United States would then have, at best, what is called plebiscitary democracy—that is, rule by a single man or a narrow clique of administrators, endorsed perhaps by a national ballot at intervals, yet allowing the public no share in decisions beyond the opportunity to vote “yes” or “no” against the dominant regime. (And often, in such centralized systems, the voter is discouraged from voting anything but “yes.”) To put all this another way, a federal structure provides means for representative democracy to operate in both regional (State) and national affairs. For this reason, federalism is an important feature of political liberty.

(3) In his famous work On Liberty, the nineteenth-century English political philosopher John Stuart Mill presented a powerful argument against centralized bureaucratic government that illustrates the advantages of federalism from another perspective. Federalism, he observed, encourages independence and self-reliance. Because of federalism,

Americans are in every kind of civil business; let them be left without a government, every body of Americans is able to improvise one, and to carry on that or any other public business with a sufficient amount of intelligence, order, and decision. This is what every free people ought to be; and a people capable of this is certain to be free; it will never let itself be enslaved by any man or body of men because these are able to seize and pull the reins of the central administration. No bureaucracy can hope to make such a people as this do or undergo anything that they do not like. But where everything is done through bureaucracy, nothing to which the bureaucracy is really adverse can be done at all.

No less significant, he concluded, is the fact that decentralized government releases the creative force and genius of a free people. The absorption of all the nation’s energy and ability into the central authority, said Mill, “is fatal, sooner or later, to the mental activity and progressiveness of the body itself.” It destroys self-reliance. Government must aid and stimulate individual exertion and development or it will stultify and retard a society. “No great thing can really be accomplished” if there is a monolithic government which “substitutes its own activity for theirs; when, instead of informing, advising, and upon occasion, denouncing, it makes them work in fetters or bids them stand aside and does their work instead of them. The worth of a state, in the long run, is the worth of the individuals composing it.”

(4) Federalism makes it difficult for an unjust dictator or fanatical political party to seize power nationally and rule the whole country arbitrarily, having first taken the national capital (a process which has occurred repeatedly in centralized countries, among them France most conspicuously). With a federal political structure, obedience to all orders from a national capital is not automatic, and State or regional leaders can resist political revolutions or coups d’état through political means or perhaps through State militia (as Thomas Jefferson thought Virginia’s State militia might have occasion to resist the Federalist party in power at Washington). To gain dictatorial control over Germany in the 1930s, Adolf Hitler had first to destroy the federal structure of the Weimar Republic. Totalitarianism cannot succeed where federalism thrives.

(5) Federalism allows States, regions, and localities to undertake reforms and experiments in political, economic, and social concerns without involving the whole country and all its resources in some project that, after all, may turn out unsatisfactorily. If it is true that “variety is the spice of life,” surely a nation is interesting and lively when it has some diversity and freedom of choice in its political methods. In America today, one State can plan some particular educational reform, another State can take a different approach to improving schools; and results can be compared and discussed. Or, different projects of unemployment relief, or experiments in making tax assessment more just, can be carried on in several States simultaneously and States can compete with one another in healthy fashion. In a unitary political structure, no place exists for innovation or experiment except the bureaucratic central administration of modern nation-states. Commonly that central administration is complacent about its own policies.

Other good reasons for maintaining a federal political structure might be given readily enough. To some extent, the Framers of the Constitution were aware of these general or abstract reasons for preferring a federal plan to a central plan of national government. John Adams, Thomas Jefferson, James Madison, and James Monroe—who would become, respectively, the second, third, fourth, and fifth Presidents of the United States—all were champions of a federated pattern of politics, as against unitary power concentrated in a central administration. Such gentlemen—politicians who were acquainted with history and political theory—perceived the general arguments in favor of federalism.

Foreign commentators who have closely examined the American political system have often shared these views, John Stuart Mill being only one of many examples. Alexis de Tocqueville, an astute French observer visiting the United States in the early 1830s, considered the American system of federalism unique and the greatest achievement of the Constitution. Yet he was a citizen of France, one of the most highly centralized countries of Europe. In his celebrated study of American government and society entitled Democracy in America (1832), Tocqueville came to the conclusion that the federal arrangement devised by the Framers was “the most favorable” form of government ever created to promote the “prosperity and freedom of man.”

Half a century later, the distinguished British statesman and legal scholar James Bryce published The American Commonwealth (1888), a profound, comprehensive, and sympathetic analysis of American institutions that ranks with Tocqueville’s work as one of the great American political classics. Like Tocqueville, Lord Bryce was favorably impressed by American federalism, notwithstanding his personal allegiance to the unitary system of Great Britain. He found federalism particularly well adapted to American soil because it united the States without extinguishing their governments and local traditions, and also supplied “the best means of developing a new and vast country.” Moreover, he thought that the American system stimulated interest in local affairs, encouraged constructive experimentation in legislation and administration, and “relieved the national legislature of a part of that large mass of functions which might otherwise prove too heavy for it.” Echoing Tocqueville, Bryce equated federalism with freedom and surmised that it had made a valuable contribution to the welfare of the American people by preventing the rise of “despotic central government” in the United States.

What was the secret of American federalism, and why had it succeeded while so many of man’s earlier attempts at confederation had failed? On this question, Tocqueville and Bryce were of one mind. What particularly impressed Tocqueville was the fact that the general government of the United States operated directly on individuals rather than on the States. “This constitution,” he explained,

which may at first sight be confounded with the [con]federal constitutions which preceded it, rests upon a novel theory, which may be considered as a great invention in modern political science.

Continuing, Tocqueville pointed out that in all previous confederations, the allied States had agreed to obey the laws passed by the general government, but had reserved to themselves the right to enforce them. Under the arrangement drafted in 1787, however, the new Federal government would exercise both the law making and law enforcement functions, thereby avoiding one of the major problems experienced under the Articles of Confederation—the reluctance and even the inability or refusal of some member States to enforce the laws and treaties of the central government.

The durability of American federalism, according to Lord Bryce, should also be attributed to the fact that it tends to promote political stability. In framing a federal system, the architects of the Constitution faced an eternal dilemma: how to balance power between the central and state governments; or as Bryce put it colorfully in an astronomical metaphor: how “to keep the centrifugal and centripetal forces in equilibrium, so that neither the planet states shall fly off into space, nor the sun of the central government draw them into its consuming fires.” The advantage of the constitutional edifice built by the Framers is that it solved the problem by giving the national government a direct authority over all citizens, irrespective of the State governments, thereby safely leaving broad powers in the hands of State authorities. “And by placing the Constitution above both the national and State governments,” observed Bryce, “it has referred the arbitrament of disputes between them to an independent body [i.e., the Supreme Court], charged with the interpretation of the Constitution, a body which is to be deemed not so much a third authority in the government as a living voice of the Constitution, the unfolder of the mind of the people whose will stands expressed in that supreme instrument.”

Tocqueville’s and Bryce’s praise of American federalism (and particularly of American local government) called the earnest attention of European and British scholars and public men to national federalism as an idea, a concept, a theory. And presently America’s pattern of federalism was emulated in very different countries—sometimes with modest success, sometimes with no success at all. However that may be, and whether or not federalism is a pattern for good government everywhere, certainly it was the best design for the new American Republic that can be imagined.

The Future of Federalism

The practical operation of the principles of federalism and of separation of powers is diminished today from what most of the Framers desired. Because of the intense jealousy among the States, the deep emotional attachment of the people to their local communities and their States, and the popular belief that there could be no liberty without State sovereignty, it was thought by many Federalists in 1787 that the greatest threat to federalism was separatism, not consolidation. “It will always be far more easy for the State governments to encroach upon the national authorities,” predicted Hamilton in Federalist No. 17, “than for the national government to encroach upon the State authorities.” History, of course, has proved Hamilton wrong, and the trend since the early nineteenth century has been toward increased centralization, interrupted only by secession and the establishment of the Confederate States of America in the Civil War period from 1861 to 1865. Since the New Deal and the administration of President Franklin Roosevelt in the 1930s, the pace of centralization has quickened, more and more functions of government once reserved to the States have been assumed by Federal authorities, and both the States and their political subdivisions have lost considerable independence, power, and influence.

Federalism, as understood by the Framers, recognizes that the authority of the national government extends to a few enumerated powers only, and that all powers not delegated by the States to the national government, nor denied to the States by the Constitution, are reserved to the States. As Madison explained in Federalist No. 45,

The powers delegated by the proposed Constitution to the Federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce. … The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties and properties of the people; and the internal order, improvement, and prosperity of the State.

This understanding of federalism was made explicit in the Constitution by the Tenth Amendment. Federalism, then, was viewed by the founding generation as a constitutionally based, structural theory of government designed to ensure political freedom and responsive, democratic government in a large and diverse society.

How and why federalism has declined is the subject of many studies. It may be explained in large part by the transformation of the relationship between the national government and the States that occurred in the 1930s, when Congress, under the leadership of President Roosevelt, decided it was necessary, in response to the Great Depression, to expand its commerce power to establish welfare and public work programs, and to regulate agricultural production, the labor force, transportation, and many other activities that had previously been under State control. The Supreme Court’s new interpretation of Congress’s power to regulate commerce among the States allowed the Federal government to gain control of virtually the entire commercial life of the nation, including many aspects of intrastate commerce wholly within one State, and a wide variety of other activities local in nature and only indirectly related to commerce, such as wildlife protection, flood and watershed projects, mountain streams, housing, even civil rights. After 1937, the Supreme Court, in a series of landmark decisions reversing many earlier cases, adopted the view that Congress was free to use its commerce power to regulate any activity that, in one way or another, might “affect” commerce. The Tenth Amendment, said the Court in United States v. Darby (1941), does not limit the commerce power and “states but a truism that all is retained which has not been surrendered.” In only one case between 1937 and 1995 did the court strike down a Federal law under the commerce clause, and even that decision was subsequently overruled. In Garcia v. San Antonio Metropolitan Transit Authority (1985), the Supreme Court rejected the proposition that the Constitution places independent limits on Congress’s commerce power, holding that participation by the States in the national political process is the only protection against Federal encroachments on their reserved powers. This may not be very reassuring to the States. Before the adoption of the Seventeenth Amendment, members of the Senate were elected by the State legislatures. Now they are elected directly by the people. The effect of this amendment has been to weaken the influence of the States in the national political process.

More recently, the Supreme Court has indicated that it may be moving away from the latitudinarian interpretation of the Commerce Clause it has followed during the last half century. Without reversing any earlier decisions, the Court ruled in United States v. Lopez (1995) that the power to regulate commerce among the States did not give Congress the authority to ban the mere possession of a firearm in a school zone. The Gun Free School Zones Act of 1990 exceeded Congress’s authority, said the Justices, because gun possession in itself did not necessarily affect interstate commerce. The Lopez case is the first instance since 1937 in which the Supreme Court has overturned a Federal statute on the ground that Congress exceeded its powers under the Commerce Clause.

Similarly, in Printz v. United States (1997) the Court struck down a provision of the Brady Gun Control Act which forced local law enforcement officials to conduct background checks on potential gun purchasers. Citing New York v. United States (1992), which held that Congress cannot compel the States to enact or enforce a Federal regulatory program, the Court asserted that Congress may not circumvent that prohibition by enlisting State officials directly. “Our constitutional system of dual sovereignty,” said the Court, “is fundamentally incompatible with conscripting state and local officials to carry out federal programs.”

Speaking for the majority of the judges, Justice Scalia agreed that, under the Supremacy and Full Faith and Credit clauses, State and local governments must comply with Federal laws, and that State judges are obliged to enforce Federal laws; but the Federal government may not coerce State and local authorities into implementing, by legislation or executive action, Federal regulatory programs. Scalia noted that, even under wartime conditions, President Woodrow Wilson was compelled to request the assistance of State governors in calling upon State officers to implement the militia draft in World War I. “The Framers,” concluded Scalia, “explicitly chose a constitution that confers upon Congress the power to regulate individuals, not States.” Whether the Lopez and Printz decisions represent the early stages of a constitutional revolution in American federalism, or just a temporary lapse of faith in the wisdom of earlier judicial rulings, remains to be seen.

In addition, Congress’s spending power under Article I, section 8 to “provide for the general welfare” has had a substantial impact on the federal system. Federal spending in the form of payments to individuals, such as old-age support under Social Security, conditional grants to States (as with education and welfare), and direct financing of Federal projects such as the Tennessee Valley Authority, has undermined local autonomy by allowing Federal instead of locally elected officials to decide how money is to be spent. In some respects this has effectively transformed State and local governments into administrative units of the national government, contributing to the gradual erosion of the State’s control over its own cities and other political subdivisions. The expansive use of the spending power by Congress—especially the practice of conditioning eligibility for Federal grants on compliance with regulations having little or no relationship to the program being funded—has led to a major expansion of Federal power over State budget priorities and, in many instances, over State laws and constitutions. Litigation about the scope of the spending power has been rare, and in those instances where the Federal Judiciary has addressed the issue, the judges have generally declined to impose any constitutional limitations.

Civil rights legislation under the Commerce Clause and the enforcement clauses of the Thirteenth, Fourteenth, and Fifteenth amendments, in conjunction with the “nationalization” of the Bill of Rights, has also contributed to the growth of Federal power at the expense of the States. As originally drafted, the Bill of Rights restricted only Congress and the Federal government. By exempting the States, it gave them exclusive jurisdiction over disputes between a State and one of its citizens regarding such matters as freedom of religion and the rights of the accused. These disputes were resolved in the State courts, in accordance with State laws and State constitutions. In recent years, however, the Supreme Court has taken command of these cases, holding that most provisions of the Bill of Rights apply to the States as well as Congress, and that such disputes must now be settled in Federal courts according to Federal standards. As a result of this development in the courts, there has been a massive transfer of power over civil liberties questions from the States to the general government.

These are only some of the examples that might be offered to explain the decline of federalism. Technological advances making State regulation impractical, changing public attitudes about the proper role of the Federal government, the incessant demand for public services and assistance: these and many other factors have also contributed to the growth of “big government.” The President, Congress, and the Courts have all played significant roles in bringing about this state of affairs.

Some observers view this development favorably, arguing that much of it was necessary because the States were either unable or unwilling to adapt to technological advances requiring uniform regulation and control, or were indifferent and even hostile to the demands of minorities, especially in the field of civil rights. Critics, on the other hand, assert that centralization has produced bureaucratic inefficiency and waste, brought on deficit spending, undermined independence and self-government, contributed to the problem of political apathy, and encouraged judicial excesses that deny citizens a say in their own affairs. Perhaps the most frequently voiced complaint is the allegation that the Federal courts have excluded the people and their elected representatives from the decision-making process by dictating public policy on the scope and meaning of individual liberty, particularly as it relates to the apprehension and treatment of criminal offenders, control and supervision of neighborhoods and schools, religion and the family, abortion, pornography, and a wide assortment of other social concerns.

Whatever the merits of these arguments for and against the growth of centralization, federalism yet remains; and there seems to be no popular movement afoot to repudiate federalism, eradicate the States, or weaken the federal system further. Even in its weakened condition, federalism remains a basic principle of the American constitutional system.

Because the Constitution does not precisely draw a line to indicate where national power ends and State power begins, the issue of States’ Rights will, it seems, continue to be a source of disagreement and debate in American public life. The difficulties associated with delineating two vaguely defined, overlapping spheres of power in the federal system are compounded by the fact that public figures are not always inclined to support the principles of federalism when they conflict with a desired program or policy; and by the tendency of the general public to favor or oppose particular policies without stopping to consider their constitutional impact on federalism. For this reason, the President, Congress, and the Courts, as well as the electorate, have not consistently supported federal principles. “Men of principle,” with a consistent record on constitutional matters, and men who are willing to take unpopular stands in defense of federalism and the Constitution, are often unappreciated or misunderstood by the public. This is unfortunate, but it surely holds true in any constitutional democracy.

B.

The Separation of Powers

Since ancient times, statesmen and political thinkers have struggled with a fundamental problem that is common to all civil societies: how to structure a government that is powerful enough to govern but itself is sufficiently controlled so that it does not become destructive of the values it was intended to promote. “In framing a government which is to be administered by men over men,” observed Publius in Federalist No. 51, “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 on the people is, no doubt, the primary control of the government; but experience has taught mankind the necessity of auxiliary precautions.”

The republican principle, in other words, should serve as the main pillar of the structure. A government based on consent, in which the people possess sufficient political liberty to control those who exercise political power, provides a barrier to despotism. Wise men that they were, the Framers understood, however, that we cannot rely solely and exclusively upon the people to control government or to protect the values of liberty, order, and justice. If we could, there would be no need for a constitution in the first place. Men are capable of both good and evil. This is because human beings are imperfect creatures, and it would be naive to think that all men are by nature good. “It may be a reflection on human nature,” Publius agreed, “that such [auxiliary] devices should be necessary to control the abuse 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 of government would be necessary.” From Christian teaching, the Framers had learned, then, that human nature is not to be trusted. Good laws and institutions are required to keep men from one another’s throats.

Foremost among the “auxiliary precautions” Publius had in mind was the separation of powers. Whereas republicanism provides an external check on government, separation of powers supplies an internal or built-in form of restraint. Of all the theories of government that have been propounded to establish limited government, the doctrine of separation of powers has been the most influential and successful. It stands alongside that other great pillar of Western political thought—the concept of representative government—as the major support for constitutional government.

The American doctrine of separation of powers consists of four elements: (1) the idea of three separate and independent branches of government—the legislature, the executive, and the judiciary; (2) the realization that government performs different kinds of functions, and the belief that there are unique functions appropriate to each branch; (3) the belief that the personnel of the branches of government should be kept distinct, no one person being able to be a member of more than one branch of government at the same time; and (4) the belief that the legislature may not alter the distribution by delegating its powers to the executive or the judicial branch. A separation of powers is a necessary prerequisite to limited constitutional government because a concentration of political power is inherently dangerous and will sooner or later lead to the abuse of power and to oppressive government. “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny,” Publius wrote in Federalist No. 47.

The separation of powers doctrine is also closely associated with rule of law, and may be said to be an indispensable means for its attainment. If any one body had the power to interpret and enforce its own laws, there would be no force, other than good will, to counteract the temptation to use the powers of government to provide exemptions from the operation of the law and establish special privileges and immunities for the ruling class or governing faction.

The doctrine of the separation of powers may be traced back to the ancient world, where the concepts of governmental functions and theories of mixed and balanced government first appeared. Separation of powers, by itself, however, has never been a satisfactory safeguard against the usurpation and abuse of power, and even among the ancients it was realized that some form of checks and balances was necessary to prevent one branch from encroaching upon the powers of the others. The idea of internal checks, exercised by each branch over the others, first came to maturity in eighteenth-century England with the development of the “mixed and balanced” Constitution of Great Britain. The solution to the problem of political tyranny, thought the English, was to distribute the powers of government among monarchy (the crown), aristocracy (House of Lords), and democracy (House of Commons), so that each class would check the advances of the others, thereby producing a “mixed and balanced” government. The idea of a judicial power distinct from the executive, which complicated matters, was added to the equation and popularized by Montesquieu and Blackstone toward the end of the eighteenth century.

The American achievement was to substitute a functionally divided system for the “mixed” system, replacing a class-based structure with one in which all the branches of government drew their authority from the people. This was first achieved in the revolutionary State constitutions adopted in 1776, that of Virginia being an example: “The legislature, executive and judiciary departments shall be separate and distinct, so that neither exercise the powers properly belonging to the other.” These first State constitutions also departed from the British model by requiring a complete separation of personnel as well as function, that of Virginia again being representative: “nor shall any person exercise the powers of more than one of them [branch] at the same time.”

Working without any clear precedents or guidelines, and laboring under the erroneous assumption that an almost pure separation of powers would achieve the desired result of limited government, the framers of these first constitutions established powerful legislative bodies but failed to provide a check and balance system. It soon became apparent that this was a fatal omission. Throughout the country, the State legislatures became an embarrassment to republican government, not infrequently interfering with the operation of the courts, reducing governors to a condition of subservience, and violating the rights of property. Under the Virginia Constitution of 1776, “All the powers of government,” complained Thomas Jefferson, “legislative, executive, and judiciary, result to the legislative body.” His friend and colleague James Madison spoke for virtually the entire Federal Convention when he stated in Federalist No. 48: “a mere demarcation on parchment of the constitutional limits of the several departments is not a sufficient guard against those encroachments which lead to a tyrannical concentration of all the powers of government in the same hands.” Accordingly, the Framers enthusiastically embraced the separation of powers doctrine but incorporated a check and balance system into the machinery of government. This, together with the distinctly American system of federalism, rendered the Constitution truly unique. The credit for the checks and balances feature of the Constitution probably goes to a group of astute Massachusetts lawyers, however, for it was they, under the leadership of John Adams, who wrote the Massachusetts Constitution of 1780—the first to introduce the check and balance concept that later became a part of the United States Constitution.

Checks and Balances

The check and balance system is probably the most ingenious and carefully crafted feature of the American Constitution. Like the principle of federalism, it permeates the document. Here is what the Framers did in order to reconcile the principle of separation with the urgent need for a vigorous new government that would exercise some self-control:

(1) They arranged that there should be some overlap of functions among the three major departments of government. In some ways, one department was allowed to touch upon the usual affairs of a different department. Montesquieu had written that no department should exercise “the whole power” of another department, but to exercise some part of the power of another department was permissible. There ought to be no insurmountable wall of separation shutting off executive and judicial branches from the legislative in every respect. Thus in the final version of the Constitution that was submitted for ratification, the President (executive branch) was given a part in the legislative process, through his power of veto and his power to make recommendations in “State of the Nation” addresses to the Congress. On the other hand, the legislative branch, through the Senate, was given some power over the executive branch, in that treaties and presidential appointments to major administrative posts and to the judiciary must be confirmed by the Senate. Likewise, the judiciary was given some executive power to manage its own internal affairs. By the power of judicial review, it might also overturn acts of the legislature deemed unconstitutional.

(2) They improved upon the State constitutions by arranging that the members of the three branches of government should be chosen in three different ways—so making the executive and judicial branches more independent from the legislative. (In the early State constitutions, usually the legislature had appointed and removed State executives and judges.) Under the new Constitution of the United States, members of the House of Representatives would be elected by the voters of geographic districts within the several States; Senators would be elected by their State legislatures; and Presidents would be elected by a College of Electors. Federal judges would be appointed by the President, subject to confirmation by the Senate, and would be appointed for life. By separating personnel as well as functions, the authors of the Constitution sought to prevent the legislative branch from lording over a subordinate executive and a subordinate judiciary.

(3) The Framers provided each department with constitutional means for resisting attempts at domination by the other departments. The President’s “qualified veto” over enactments of the Congress was a protection for the executive branch. Life tenure for judges was a protection for the judicial branch. As an additional device for strengthening the executive and judiciary against the legislature, the Framers arranged that members of the House and Senate would be chosen by different means, and in part at different times. The Congress, for its share, was given the constitutional power of impeaching the executive or members of the judiciary—a grim power inherited from the British Constitution.

(4) It may thus be seen that an elaborate system of checks and balances was woven into the Constitution. These checks and balances were intended to prevent any person or organ of government from interfering with constitutional freedoms or with the lawful functioning of another organ of government. They also help to maintain the separation of powers by arming each branch with a defensive power to resist encroachments from another branch.

These built-in checks upon the power of any person or office in the Federal government are still functioning two centuries after their invention.

To obtain a clearer notion of these several constitutional means for separating powers and providing checks and balances in the Constitution, study the following list of such provisions in the original seven Articles of the Constitution:

Checks upon the Congress

The Vice President (executive branch) presides over the Senate and can cast a tie-breaking vote (Article I, Section 3).

The President is empowered to call special sessions of the Congress, and to adjourn both houses if they cannot agree upon a time for adjournment (Article II, Section 3).

The President is given power to veto acts passed by the Congress (Article I, Section 7).

The Supreme Court has power to review enactments of the Congress for unconstitutionality (an unspecified power derived from Article III).

Checks upon the President

Congress has power to impeach and remove the President for high crimes and misdemeanors (Article II, Section 4).

Congress may override a presidential veto by a two-thirds majority (Article I, section 7).

Congress can assure civilian control of the military through its power to appropriate—or withhold—funds to support military and naval forces, to make regulations for those forces, to call forth the militia of the States, to suppress insurrections and to repel invasions, and to declare war (Article I, Section 8).

Congress has an inherent power to investigate actions of the executive branch concerning proper execution of the laws and proper expenditure of funds (Article I, Section 8).

Congress is empowered to appropriate the funds for operation of the executive branch (Article I, Section 8).

The Senate has power to approve, amend, or reject treaties. It may also attach reservations to the treaty, which may not alter the content but may qualify or limit the obligations assumed by the United States under the agreement (Article II, Section 2).

The Senate has power to confirm or reject presidential appointments to major posts (Article II, Section 2).

The Judiciary has power to review actions of the executive branch for their constitutionality (an unspecified power derived from Article III).

Checks upon the Judiciary

Congress has power to impeach and remove Federal judges for adequate cause (Article I, Section 3; Article II, Section 4; Article III, Section 1).

Congress has power to appropriate funds for operation of the judicial branch (Article I, Section 8).

Congress has power to determine the number of judges and the size of Federal courts (Article III, Section 1).

Congress has power to regulate the original jurisdiction of inferior Federal courts and the appellate jurisdiction of all Federal courts (Article III, Sections 1 and 22).

The President has power to appoint Federal judges (Article II, Section 2).

These checks upon the powers of all three major branches of the Federal government, if carried to extremes, might make it difficult to carry on government at all. This the Framers understood. So they checked or balanced the checks-and-balances system itself by adding to the Constitution provisions to protect each branch from interference with its operations by another branch, and to protect the members of each branch from threats and reprisals. Here are the major protective provisions:

The Independence of Congress

Congress is authorized to assemble annually, and the President may not dissolve a Congress (Article I, Section 4).

Both houses of Congress have the power to judge the elections, returns, and qualifications of their own members (Article I, Section 5).

Only the Congress can determine the rules for its proceedings, punish its members for disorderly behavior, and expel its members (Article I, Section 5).

Members of Congress are privileged from arrest while Congress is in session, except for cases of treason, felony, and breach of the peace (Article I, Section 6).

Members of Congress are exempt from arrest, prosecution, or lawsuit for what they may say on the floors of Congress or in committee—even if their remarks are slanderous or seditious (Article I, Section 6).

The Independence of the President

The President is chosen by electors, and is not appointed by the Congress (Article II, Section 1).

Congress may not raise or lower the President’s salary while he is in office (Article II, Section 1).

Only the President may conduct diplomacy with foreign governments and extend diplomatic recognition (Article II, Section 3).

The President is given unrestricted power to remove all executive officers and Senate approval is not required (an unspecified power derived from Article II, Section 3).

The Independence of the Judiciary

Congress may not reduce the salary of a Federal judge while he holds office (Article III, Section 1).

Congress may not diminish the original jurisdiction of the Supreme Court (an unspecified restriction derived from Article III, Section 2).

Congress may not abolish the Supreme Court or the office of Chief Justice (Article III, Section 1; Article I, Section 3).

Summary and Review

All of this detail may seem somewhat confusing, so a summary and review of this information about the separation of powers and about checks and balances should be helpful.

The Framers understood, chiefly from the experience of the States and the general government under the Articles of Confederation, that only through a system of checks and balances might the separation of powers be maintained. So the Constitution contains the ingenious network of checks and protections previously described.

These checks and balances were devised to enable each branch to resist such invasions of their proper authority. They enabled each branch to exert some direct control over the other branches. This the Framers accomplished by overlapping some of the functions of the Federal government, so that each branch might play some part—though merely a limited part—in the exercise of the other branches’ functions.

Thus the Congress was empowered to exercise a degree of executive and judicial power. The Senate, for example, actually exercises an executive function when it participates in the appointment and treaty-making processes; and both houses of Congress exercise a judicial power when they impeach and remove a judge or an executive official from office. A legislative check on the judiciary is established by the power of Congress to determine the size of the courts and to limit the appellate jurisdiction of both the Supreme Court and inferior Federal courts.

Similarly, the executive exercises some legislative powers. The presidential veto, for example, is a legislative power that permits the President to take part in the law-making process. The President exercises a judicial power, on the other hand, when he pardons a person convicted of a Federal crime.

The judiciary, in turn, possesses legislative power through judicial review, and enjoys some executive power through its authority to appoint clerks and other court personnel.

Each branch, it may be seen, is independent of the others, although the independence they possess is not absolute.

Such is the theory of the separation of powers as understood and applied in 1787. Madison and other Framers expected quarrels to break out from time to time between branches of government. Indeed, they counted on such quarrels. Why? Because jealousy and hostility among the chief divisions of the Federal government would prevent the three branches from combining in any scheme to infringe upon the powers of the several States or to diminish the liberties of citizens.

In other words, Madison and his colleagues meant to avert the rise of an oligarchy (the rule of a few rich and powerful men) or of a tyrant (an unlawful single ruler) by making it almost impossible for any man or faction to secure the simultaneous cooperation of the legislative, executive, and judicial branches. Thus the Constitution would be guarded against subversion by the ambition and the vanity of the men who respectively belonged to the legislature, the executive force, and the body of judges. “Ambition would counteract ambition,” as Madison put it.

The principal men in Congress would tend to resent the power of the presidency and to assert the claims of Senate or House to national leadership. The President, for his part, would cherish his powers jealously and would vigorously repel attempts of the Congress to dictate executive policies. And the Supreme Court would maintain a stern defense of its prerogatives, rebuking both Congress and President from time to time.

Separation of Powers: A Critical Evaluation

Since 1789, when the First Congress convened, the executive branch has tended to grow in power, even during the administration of Presidents who professed to respect the legislative branch.

The judiciary, ever since John Marshall became Chief Justice in 1801, has tended to be much more assertive of its powers than the Framers had expected. (Alexander Hamilton, writing in The Federalist, assured his readers that the Supreme Court, “the weakest of the three branches,” could take “no active resolution whatever.”) Today, Federal courts examine and review Congressional enactments and presidential orders far more frequently than the Framers imagined.

Congress, though meddling little with the judiciary since the first decade of the nineteenth century, has bitterly attacked Presidents from time to time, often out of partisan motives. What is even more destructive of balanced government, Congress has delegated to a multitude of Federal regulatory commissions and administrative bodies major powers that, under separation of powers teaching, ought to be retained jealously within Congress. Indeed, some critics argue that it is chiefly from governmental commissions and agencies that the principal threat to citizens’ rights comes today—not from old-fangled oligarchs and tyrants.

Over the years, certain misconceptions about the American doctrine of separation of powers, and criticisms of the system, have surfaced from time to time in writings on American politics. The assumption is often made, for example, that the Constitution established three “equal” or three “coordinate” branches of government. Such is not the case. As Madison observed in Federalist No. 51, “it is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates.” Experience under the State constitutions had shown, he explained in Federalist No. 48, that “The legislative department is everywhere extending the sphere of its activity, and drawing all power into its impetuous vortex.”

Moreover, the constitutional powers of Congress are “more extensive and less susceptible to precise limits,” and Congress “can, with the greater facility, mask, under complicated and indirect measures, the encroachments which it makes on the coordinate departments.” The executive power, on the other hand, is “restrained within a narrower compass,” and the judiciary’s powers are even more uncertain. “Projects of usurpation by either of these departments would immediately betray and defeat themselves.” Not to be overlooked, added Madison, is the fact that “the legislative department alone has access to the pockets of the people,” which gives it the power to reward and punish those who serve in the other branches.

In theory, at least, Congress has the constitutional authority to lord over the other branches. An angry House and Senate might, if it wished, reduce the entire Federal Judiciary down to one Supreme Court, with only the Chief Justice, exercising only limited, original jurisdiction. A legislative assault on the executive branch would be equally devastating, leaving the President with no cabinet, no departments, no army or navy, and no funds. All of this is possible because the other branches rely almost exclusively on Congressional statutes for their operation.

There are numerous examples of legislative encroachment, as witnessed, for example, by the impeachment of President Andrew Johnson. There have also been periods of legislative ascendancy, which Woodrow Wilson complained of in his book, Congressional Government. Throughout most of American history, however, Congress has probably exercised more restraint than the Framers anticipated. That an unruly Congress always has the potential of tyrannizing over other branches is a factor that should always be kept in mind, however; and it should also be emphasized that the main reason for the separation of powers and checks and balances system, as the Framers saw the problem, was to protect the executive and judicial branches against the legislative. This is not to say that the Framers overlooked the possibility that the President or the Supreme Court might also abuse their powers, but merely that in 1787 they seemed to lack the inclination and capacity.

It is true, of course, that all three branches have become far more powerful in the twentieth century than the Framers ever thought possible. The growth of Federal power, however, has been largely at the expense of the States, and the growth of presidential and judicial power has come about through the acquiescence or approval of Congress. The Congress is still the fountainhead of power, and the hub of the system. In the final analysis, there is practically no constitutional controversy or problem that Congress (and to a lesser extent the States through the initiation of amendments) cannot ultimately resolve, if it has the will to do it. Neither the President nor the courts can make this claim. Constitutionally speaking, therefore, Congress is the most powerful branch, but in practice it does not always assert itself and at times may even be overshadowed by the President or the Supreme Court.

Today, as in 1787, the separation of powers doctrine is venerated and praised as the mainstay of the Constitution. It has never been targeted for attack by any political reform movement and has traditionally enjoyed a broad consensus of support among the American people. But it has not been immune from criticism. From time to time there have been outcries of disappointment and frustration because the American political process does not always respond immediately to every call for action. Some critics have charged that separation of powers weakens the Federal government, and that the built-in tension and conflict among the branches produces political paralysis. In today’s world, they argue, where the United States is embroiled in one global crisis after another in the seemingly endless struggle against terrorism and war, a more harmonious relationship between the President and Congress would allow the United States to act with greater certainty and dispatch.

It is true, of course, that the separation of powers slows the pace of government. More than once the United States Senate has blocked a treaty signed by the President. Congress and the President share the war and diplomatic powers and are not always of one mind on military and foreign policy. The Supreme Court has occasionally intervened, as in 1952, when the Justices ruled in the famous Steel Seizure Case that President Truman had exceeded his powers when he endeavored to prevent a nationwide strike in the steel industry by taking possession of the mills.

Speed, however, is not a virtue in the political process crafted by the Framers. The system is intended to promote careful deliberation, which is time-consuming, to be sure, but necessary to build a consensus so that the decision finally made has broad support. The Framers believed also that the deliberative process increases the likelihood that the policy finally adopted will be a wise one. Hasty decisions are often foolish decisions. Debate and negotiation have the salutary effect of cooling tempers and correcting mistaken views and false impressions. Compromise means that a variety of conflicting interests have some voice in public affairs; and without this complicated check and balance system, minorities of every description—property holders, rural folk, religious sects, racial and ethnic groups, certain occupations and professions, whole regions of the country—would be at the mercy of an unrestrained Congress, President, or Supreme Court. Separation of powers protects the American citizen against overbearing majorities as well as entrenched minorities.

The claim that separation of powers weakens government is equally unpersuasive. It is abundantly clear from an examination of the Constitution and a review of The Federalist that the national government was to be a strong government, with the power to fulfill the obligations placed upon it and the means to carry out those obligations. Separation of powers was designed not to emasculate the powers of government, but to give some assurance that they would not be exercised in an oppressive way. Preventing the aggrandizement, usurpation, and abuse of power is not the same as preventing the exercise of lawful power. There is no pattern of evidence that the separation of powers has prevented the United States from dealing with foreign aggression or domestic crises in a timely and efficient manner. Of the many examples that have been offered in defense of separation of powers, however, none is more convincing than the twentieth-century spectacle of totalist governments misruling more than half the world. The concentration of ruthless power in the hands of fanatical and half-mad rulers—often in the name of “liberation” or “people’s democracy”—has resulted in a degree of human misery that even the worst government of the eighteenth century would have regarded with horror.

Separation of Powers at the Crossroads

The complex task of directing the affairs of a modern industrial state, with a large and growing population placing increased demands on government, has had a negative effect on separation of powers and the rule of law. So too has America’s rise to power as the defender of the free world, which has changed the role of the President and what is expected of the office, and greatly enlarged his war and diplomatic powers.

Of the many factors which have contributed to the decline of separation of powers, however, the massive delegation of legislative powers by Congress to executive agencies and independent regulatory commissions has probably done the most to change the relationship among the branches and the law-making function of government. By delegation of powers is meant the transfer of the decision-making authority from one branch of the government to another. Independent regulatory commissions, such as the Federal Trade Commission, the Federal Communications Commission, or the Securities and Exchange Commission, are quasi-legislative, quasi-executive, and quasi-judicial bodies that lie outside the separation of powers system. The first such commission was the Interstate Commerce Commission, established in 1886; but most are primarily a phenomenon of the twentieth century. Many were created during the New Deal. They are independent in the sense that they are largely free of executive control. The President may appoint the members, but that is about the extent of his influence; and Congress may even prescribe and restrict the causes for which the President may remove them from office. These commissions are quasi-legislative in the sense that Congress has given them a portion of its own law-making authority so they can regulate certain activities, largely commercial in nature, such as the stock market, the licensing of radio and television broadcasting, and various trade practices. Regulations adopted by the commissions are treated as laws and enforced by the commissions. Independent regulatory commissions exercise a quasi-judicial function in the sense that affected parties may challenge their rulings in administrative proceedings, before administrative law judges, who conduct hearings much like a court of law. Administrative decisions are subject to review by the regular courts.

These independent boards, agencies, and commissions—and there are more than fifty today—are sometimes called “the headless fourth branch of government.” The basic purpose in placing these hybrid organizations outside the regular executive departments was to keep them “out of politics,” the idea being that they would perform the regulatory function in a more non-partisan manner, and would more likely be fair and reasonable, if they were free of presidential pressures and controls. But experience has shown that the commissions are not entirely independent of politics or immune from outside pressures. Special interest groups lobby the commissions just as they seek to influence public policy decisions in Congress and the executive branch. Thus corporations, manufacturers, labor organizations, and a variety of public interest groups, for example, all descend not only on the committees in Congress and the Department of Labor in order to advance their interests, but also on the National Labor Relations Board. Labor-related issues may also come before other commissions, legislative committees, and executive agencies. At the State level, there are fifty additional governments, all regulating through their own courts and departments of labor some aspect of labor-management relations, such as workers’ compensation, while at the same time implementing Federal policies. It is an enormously complex affair, requiring considerable effort, expense, and expertise. The result is the establishment of an enormous bureaucracy.

As originally conceived, these independent regulatory commissions were thought to be necessary as a means of introducing order into a highly industrialized nation, providing uniform controls, eliminating monopolistic practices, and in general improving health, safety, and welfare. In a very emphatic way, they represented a rejection of the laissez-faire approach to economic activity, prevalent in the nineteenth century, which frowned on government interference in a free market economy and took the position that all members of society, and the nation at large, would enjoy greater prosperity and abundance if government refrained from meddling too much in the economy and allowed the laws of supply and demand to work naturally.

The wisdom of government regulation, and the extent to which the natural forces of the market should be controlled, are questions of great interest and debate. Our purpose here, however, is to evaluate the effect the creation of these independent commissions has had on the separation of powers system. The legislative powers of the Federal government, we recall, are delegated powers. They were originally in the possession of the States, which delegated them to Congress. An ancient maxim of the separation of powers doctrine holds that “that which has been delegated cannot be redelegated.” A separation of powers would not long exist if Congress were free to transfer its delegated powers to another branch. Likewise, the system would not function properly if Congress could delegate its powers back to the States, or to the people at large. Although under some State constitutions the citizens may initiate legislation through what is called the “initiative,” or repeal laws through “referendum,” such practices circumventing the legislature are prohibited under the United States Constitution. They constitute an unconstitutional delegation of legislative power.

How, then, has it been possible for Congress to delegate its legislative powers to independent regulatory commissions (and executive agencies as well)? In addressing this issue, the courts have adopted the view that Congress may empower such commissions to issue rules and regulations as long as the authorizing statute provides guidelines for the regulators. The guidelines must be sufficiently explicit, however, so as to prevent the use of arbitrary discretion in the rule-making process. In general, the courts are satisfied that there has been no improper delegation if the regulation in question seems to reflect the will of Congress and the commission has merely “filled in the administrative details” for Congress.

In practice, the courts have tended to interpret these restrictions somewhat loosely by giving substantial leeway to the commissions to “fill in the details” of broadly stated congressional policies. Thus the commissions are, in effect, often making the law, even though the commissioners themselves are not elected to office and are not accountable for their actions to the electorate—or in many respects even to Congress.

The effect of all this on the American constitutional system is far-reaching. In the first place, it contributes to the decline of federalism, and has resulted in the transfer of vast amounts of State power to the Federal bureaucracy. The subject of labor relations is just one of many areas of public policy that could be cited to illustrate the problem. Among the delegated powers of Congress in Article I, Section 8 of the Constitution, there is no mention of labor, and throughout most of American history the power to deal with such issues as labor strikes, the right to organize unions, working conditions, wages and hours, and the problem of child labor was left to the States. Early in the twentieth century, however, Congress began claiming the right to regulate labor under the Commerce Clause. The Supreme Court at first resisted these claims on the ground that labor was not commerce as such and was therefore beyond the reach of Federal authority. During the New Deal period, however, the Court reversed its stand, and since that time the entire field of labor-management relations has been subject to Federal regulation and control.

Having taken command of the situation, the Congress quickly discovered that the subject was far too complex and time consuming for busy members of the House and Senate, and that it would be necessary, therefore, to turn the whole matter over to an independent regulatory commission. This commission would carry out the will of Congress through general statutes, but would be responsible for the day-to-day enforcement of the laws through the issuance of rules and regulations and the adjudication of disputes arising under them. Thus was born the National Labor Relations Board in 1935, which is actually neither the first nor the only commission dealing with labor problems. In large measure, however, the NLRB is now the repository of power that once belonged to the States.

In the second place, the creation of the NLRB and other such commissions, as previously noted, has tended to weaken separation of powers. It is simply humanly impossible for members of Congress to monitor the activities of all these commissions, which employ millions of people and issue thousands of highly technical regulations annually. Important policy decisions are thus actually made on a routine basis by Federal employees, many anonymous, who enjoy tenure under the Civil Service Act and cannot easily be removed from office or controlled by Congress.

The existence of so many independent commissions exercising so much power also frustrates the executive branch. The President has no say in their operation, yet is responsible for the general enforcement of the laws. Executive unity and uniformity of policy may also suffer if the President is pursuing one policy and a commission is moving in another direction. Since members of these commissions serve staggered terms, the President may even find that certain commissioners appointed by a previous President are actively working against him to undermine his programs.

Likewise, the courts have experienced difficulty in restraining over-zealous regulators who may have exceeded their authority. Administrative decisions handed down by the commissions are subject to review by the regular courts. But only a small percentage are actually adjudicated because there are not enough judges or courts to handle the great volume of disputes. Much of what is actually decided in the commissions is never reviewed by the judges. Moreover, many of the rules and regulations in question are highly technical or scientific in nature, and beyond the range of judicial expertise. This further weakens the ability of the courts to superintend the commissions.

Critics argue that Congress, having decided it wants to regulate everything, actually regulates nothing, and has simply delegated enormous power to the bureaucracy. This is an overstatement, of course, but there is some truth to the charge. Keeping an eye on the commissions and holding them accountable is an enormous undertaking; and there is no question that at least in some respects these commissions are functioning as independent law-making bodies. With its limited time and limited resources, Congress does not even have the opportunity to debate many of the policies adopted by the commissions, let alone scrutinize them.

In response to these criticisms, it is argued nevertheless that the economic and technological complexities of modern America are so great that Americans have little choice but to accept these commissions as necessary and essential, lest there be chaos and disorder. No doubt there is some truth to this as well, suggesting that a strict separation of powers, as understood by the Framers, may not be altogether possible nowadays, and that the system can best be maintained by continually questioning the need for each commission, re-evaluating its authority and powers, and vigilantly guarding against excessive delegation of power.

Finally, it must always be borne in mind that the doctrine of the separation of powers is an integral part of the rule of law. When commissioners, agency heads, and their subordinates issue administrative rules and regulations that have the force of law, they are making laws and functioning as legislators. When they enforce these regulations, and, for example, take administrative action by denying disability benefits to a veteran whose injuries, in the judgment of the regulators, are not war-related, they are exercising an executive function. And when they adjudicate claims, as in the case of a trucking firm, challenging the Interstate Commerce Commission’s refusal to grant a license, they are exercising a judicial function. In a sense, then, an independent regulatory commission is almost a government unto itself, performing all the functions of government in contravention of the separation of powers. Because it is impossible to fix the limits of administrative discretion and to spell out in detail all of the circumstances in which the regulators may exercise their individual judgment, there is the constant danger that rule of law may be supplanted by rule of men. Indeed, the separation of powers doctrine is based on the premise that rule of law cannot be attained if all of the functions of government are concentrated in the same hands.

Abuses in administrative discretion may be and frequently are brought to the attention of Congress, but the massive outpouring of regulations and all of the individual complaints far exceed the capacity of Congress for corrective action. In those rare instances where a legislator is able to focus on a particular case, there is often little that can be done to correct the problem from a practical standpoint. Congress, and certainly not an individual member, has no authority to remove an arrogant bureaucrat from office, and the President’s limited power of removal is almost equally feeble, as demonstrated by the fact that only a small handful of commissioners have been forced out of office; and their subordinates are immune from reprisal or removal. Congress is always free, of course, to overturn administrative rulings by corrective legislation, but again, this is an arduous chore that seldom is attempted, and an option that is not usually available in the case of individual wrongdoings.

In the final analysis, it must also be admitted that the creation of so many independent regulatory commissions has also weakened the republican principle of representative government and the ideal of democratic government in which the decision-makers are held politically accountable to the voters for their actions. Judicial review of administrative decisions, which can address some of the worst abuses of power, offers the hope that legal accountability may nevertheless be upheld. “What is required under the rule of law,” notes Friedrich A. Hayek in his great classic The Constitution of Liberty, “is that a court should have the power to decide whether the law [passed by Congress] provided for a particular action that an administrator has taken. In other words, in all instances where administrative action interferes with the private sphere of the individual, the courts must have the power to decide not only whether a particular action was [within the law], but whether the substance of the administrative decision was such as the law demanded. It is only if this is the case that administrative discretion is precluded.”

C.

The Rule of Law

The America of 1787 inherited from medieval England the concept of rule of law, sometimes expressed as “a government of laws, not of men.” One may trace the rise of this principle in English history all the way back to the signing of Magna Charta in the year 1215, when King John found it necessary to guarantee his obedience to English laws. For that matter, medieval English writers on law derived their understanding of the rule of law from ancient Roman jurisprudence.

“The king himself ought not to be under man but under God, and under the Law, because the Law makes the king. Therefore let the king render back to the Law what the Law gives him, namely, dominion and power; for there is no king where will, and not Law, wields dominion.” So wrote Henry de Bracton, “the father of English law,” about the year 1260, during the reign of Henry III. This teaching that law is superior to human rulers has run consistently through English politics and jurisprudence all the way down the centuries. It was rather belligerently asserted from time to time by the English colonies in North America.

This doctrine that no man is above the law applied not only to kings but also to legislative bodies and judges. Sir Edward Coke, we saw earlier, fiercely resisted not only attempts by King James I to interpret the law for himself but also Acts of Parliament that contravened the common law. Citing Bracton as an authority, he asserted that “the king must not be under any man, but under God and the law.” In Dr. Bonham’s Case (1610), Coke laid down the principle of judicial review, claiming that judges had a right, when interpreting Acts of Parliament, to declare them null and void if they conflicted with established principles of law and justice. “And it appears in our books,” said Coke, “that in many cases, the common law will control Acts of Parliament, and sometimes adjudge them to be utterly void; for when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such an Act to be void.”

That the English had turned their backs on their own tradition and respect for rule of law was the principal grievance of American colonial leaders. In his famous pamphlet The Rights of the British Colonies Asserted and Proved (1764), James Otis wrote:

To say the Parliament is absolute and arbitrary, is a contradiction. The Parliament cannot make 2 and 2 [equal] 5. … Parliaments are in all cases to declare what is good for the whole; but it is not the declaration of parliament that makes it so. There must be in every instance a higher authority—God. Should an act of parliament be against any of His natural laws, which are immutably true, their declaration would be contrary to eternal truth, equity and justice, and consequently void.

Similar arguments were made by the State supreme court judges after 1776. Their attempts to nullify legislative enactments through the power of judicial review were largely unsuccessful, however, because most early State constitutions, like the English Constitution, followed the doctrine of legislative supremacy. Acts passed by the State legislatures were expected to conform to the State constitutions. But there were no provisions calling for the supremacy of the State’s constitution over laws passed by the legislature should the judges decide that a law conflicted with the State’s constitution. Thus, the absence of a supremacy clause in these State constitutions rendered the power of judicial review weak and ineffective.

The Federal Constitution of 1787 drastically changed the concept of constitutional government by introducing the principle of constitutional supremacy. Article VI declared that “This Constitution … Shall be the supreme law of the land.” Laws passed by Congress, though supreme in relation to State constitutions and State laws, were ranked below the Constitution. Indeed, Article VI explicitly stated that such laws must conform to, and be made in pursuance of, the Constitution. Noting the significance of the Supremacy Clause, Chief Justice John Marshall held in the famous case of Marbury v. Madison (1803) that an Act of Congress contrary to the Constitution was not law:

[I]n declaring what shall be the supreme law of the land, the Constitution is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the Constitution, have that rank.

It may thus be seen that the American Constitution and the power of judicial review are an extension of rule of law. The Constitution is law, the highest law, and the President, Congress, and the Federal Judiciary are bound by its terms. A government of laws and not of men is, then, the underlying principle of the American political and legal system.

This means that no person, however powerful or talented, can be allowed to act as if he were superior to the law of the land. Public decisions must be made upon the basis of law, and the laws must be general rules that everybody obeys, including those who make and enforce the law. A law that violates the Constitution is not a law and is not, therefore, enforced. This was the principle that Marshall followed in Marbury v. Madison. Likewise, rule of law means equality before the law. A law that singles out certain people for discriminatory treatment, or is so vague and uncertain that one cannot know what it requires, will not be treated as a law.

Rule of law, then, is not rule of the law, but a doctrine concerning what the law ought to be—a set of standards, in other words, to which the laws should conform. Merely because a tyrant refers to his commands and arbitrary rulings as “laws” does not make them so. The test is not what the rule is called, but whether the rule is general, known, and certain; and also whether it is prospective (applying to future conduct) and is applied equally. These are the essential attributes of good laws—laws that restrain but do not coerce, and give each individual sufficient room to be a thinking and valuing person, and to carry out his own plans and designs. This does not mean that the individual is free to do as he pleases; for liberty is not license. As the Framers knew well, absolute freedom would be the end of freedom, making it impossible for society to be orderly, safe from crime, secure from foreign attack, and effectively responsive to the physical, material, and spiritual needs of its members. Under God, said the exponents of the rule of law, the law governs us; it is not by mere men that we ought to be governed; we can appeal from the whims and vagaries of human rulers to the unchanging law.

Though this is a grand principle of justice, often it is difficult to apply in practice. Passion, prejudice, and special interest sometimes determine the decisions of courts of law; judges, after all, are fallible human beings. As the Virginia orator John Randolph of Roanoke remarked sardonically during the 1820s, to say “laws, not men,” is rather like saying “marriage, not women”: the two cannot well be separated.

Yet the Framers at Philadelphia aspired to create a Federal government in which rule of law would prevail and men in power would be so restrained that they might not ignore or flout the law of the land. The Supreme Court of the United States was intended to be a watchdog of the Constitution which might guard the purity of the law and forcefully point out evasions or violations of the law by the other branches of government or by men in public office.

The Framers knew, too, the need for ensuring that the President of the United States, whose office they had established near the end of the Convention, would be under the law—not a law unto himself. The President’s chief responsibility, in fact, is to enforce and uphold the law, and to “take care that the laws be faithfully executed.” Whereas the members of Congress and the Federal Judiciary, and other Federal and State officials, all take an oath “to support this Constitution” (Article VI, Clause 3), the President—and the President alone—swears on the Bible (or affirms) that he will “preserve, protect and defend the Constitution” (Article II, Section 1, Clause 8).

Thus in the final analysis the nation looks to the President as the person ultimately responsible for upholding the rule of law and the supremacy of the Constitution. By making him Commander-in-Chief of the armed forces and by giving him the power to supervise the heads of the various departments of the executive branch, the Constitution also confers upon the President the means by which he may fulfill his law enforcement responsibilities.

By and large, America has enjoyed rule of law, not of men. No President of the United States has ever tried to make himself dictator or to extend his term of office unlawfully. Martial law—that is, a suspension of the law and the administration of justice by military authorities in times of war, rebellion, and disorder—has never been declared nationwide. No party or faction has ever seized control of the Federal government by force or violence. The Constitution of the United States has never been suspended or successfully defied on a large scale. Thus the rule of law has usually governed the country since 1787—a record true of very few other countries of the world.

The Basic Principles of the American Constitution

Federalism, separation of powers, and rule of law are the heart of the American Constitution. But there are other fundamental principles of the system as well, all of which contribute significantly toward the achievement of liberty, order, and justice. Viewing the Constitution as a whole, as the Framers perceived it, we observe that its essential features include the following:

First, the Constitution is based on the belief that the only legitimate constitution is that which originates with, and is controlled by, the people. Thus a constitution is more than a body of substantive rules and principles. As Thomas Paine wrote, “A constitution is not the act of a government, but of a people constituting a government, and a government without a constitution is power without right.” This principle is declared in the Preamble of the Constitution, which proclaims that the Constitution is ordained and established not by the government, but by “We the People.”

Second, the United States Constitution subscribes to the view that the government must in all respects be politically responsible both to the States and to the governed. This is achieved through the election and impeachment process, with only the members of the House of Representatives being directly accountable to the electorate. Though not directly represented, the States exercise some influence by virtue of the Electoral College, control of the franchise, and the amendment process. Prior to the adoption of the Seventeenth Amendment in 1913, the States were also able to protect their interests in some instances by virtue of the fact that members of the Senate were indirectly elected by State legislatures rather than directly by the people.

Third, the Constitution rested on the proposition that all constitutional government is by definition limited government. A constitution is a legal, not just a political limitation on government; it is considered by many the antithesis of arbitrary rule; its opposite is despotic government, the government of will instead of law. Parliamentary supremacy, identifying all law with legislation, is thus hostile to the American Constitution, which declares that the Constitution shall be the supreme law of the land.

Fourth, the Constitution embraced the view that in order to achieve limited government, the powers of government must be defined and distributed—that is, they must be enumerated, separated, and divided. A unitary and centralized government, or a government in which all the functions or functionaries were concentrated in a single office, was a government that invited despotism and would inevitably become tyrannical and corrupt. This tendency toward “tyranny in the head” might be prevented, or at least discouraged, through a separation of powers among the three branches of the Federal government, and a reservation to the States of those powers that were not delegated to the Federal government.

Conversely, the Framers were also mindful that in order to be limited, it did not follow that government must also be weak. Too little power was as dangerous as too much, and if left unattended might produce “anarchy in the parts,” or a state of disorder into which the man on the white horse would ride to forge tyranny out of chaos. The solution for avoiding these extremes of too much and too little power was to balance power and to balance liberty and order, allocating to the people and to each unit of government a share of the national sovereignty.

Fifth, the American Constitution was premised on the seemingly unassailable assumption that the rights and liberties of the people would be protected because the powers of government were limited, and that a separate declaration of rights would therefore be an unnecessary and superfluous statement of an obvious truth. Since the government of the United States was to be one of enumerated powers, it was not thought necessary by the Philadelphia delegates to include a bill of rights among the provisions of the Constitution. “If, among the powers conferred,” explained Thomas Cooley in his famous treatise Constitutional Limitations (1871), “there was none which would authorize or empower the government to deprive the citizen of any of those fundamental rights which it is the object and duty of government to protect and defend, and to insure which is the sole purpose of a bill of rights, it was thought to be at least unimportant to insert negative clauses in that instrument, inhibiting the government from assuming any such powers, since the mere failure to confer them would leave all such powers beyond the sphere of its constitutional authority.” In short, the Constitution itself was a bill of rights because it limited the power of the Federal government.

SUGGESTED READING

  • Herman V. Ames, ed., State Documents on Federal Relations (New York: Da Capo Press, 1970).
  • Walter H. Bennett, American Theories of Federalism (Tuscaloosa: University of Alabama Press, 1964).
  • Raoul Berger, Federalism: The Founders’ Design (Norman: University of Oklahoma Press, 1987).
  • Joseph M. Bessette, ed., Toward a More Perfect Union: Writings of Herbert J. Storing (Washington, D.C.: The AEI Press, 1995).
  • Joseph M. Bessette and Jeffrey Tulis, The Presidency in the Constitutional Order (Baton Rouge: Louisiana State University Press, 1981).
  • James Bryce, The American Commonwealth. 2 vols. (Indianapolis: Liberty Fund, 1995).
  • George W. Carey, In Defense of the Constitution (Indianapolis: Liberty Fund, 1995).
  • George W. Carey, The Federalist: Design for a Constitutional Republic (Urbana: University of Illinois Press, 1989).
  • Edward S. Corwin, The President: Office and Powers (New York: New York University Press, 1957).
  • Martin Diamond, The Founding of the Democratic Republic (Itaska, Ill.: F. E. Peacock Publishers, 1981).
  • Robert A. Goldwin, ed., A Nation of States. Essays on the American Federal System (Chicago: Rand McNally, 1961).
  • Robert A. Goldwin and Art Kaufman, eds., Separation of Powers: Does It Still Work? (Washington, D.C.: American Enterprise Institute, 1986).
  • Alexander Hamilton, John Jay, and James Madison, The Federalist, ed. by George W. Carey and James McClellan (Dubuque, Iowa: Kendall-Hunt, 1989).
  • Alexander Hamilton and James Madison, Letters of Pacificus and Helvidius. Intro. by Richard Loss (Delmar, N.Y.: Scholars’ Facsimiles and Reprints, 1976).
  • Friedrich A. Hayek, The Constitution of Liberty (Chicago: University of Chicago Press, 1960).
  • Eugene W. Hickok, Gary L. McDowell, and Philip Costopoulos, Our Peculiar Security: The Written Constitution and Limited Government (Lanham, Md.: Rowman & Littlefield, 1993).
  • Willmoore Kendall and George W. Carey, The Basic Symbols of the American Political Tradition (Baton Rouge: Louisiana State University Press, 1970).
  • Ralph Ketcham, Framed for Posterity: The Enduring Philosophy of the Constitution (Lawrence: University Press of Kansas, 1993).
  • Andrew C. McLaughlin, The Foundations of American Constitutionalism (New York: New York University Press, 1932).
  • Felix Morley, Freedom and Federalism (Indianapolis: Liberty Fund, 1981).
  • Ralph Rossum and Gary McDowell, The American Founding (Port Washington, N.Y.: Kennekat Press, 1981).
  • Ellis Sandoz, A Government of Laws (Baton Rouge: Louisiana State University Press, 1990).
  • William A. Schambra, ed., As Far As Republican Principles Will Admit. Essays by Martin Diamond (Washington, D.C.: The AEI Press, 1992).
  • Colleen A. Sheehan and Gary L. McDowell, eds., Friends of the Constitution: Writings of the “Other” Federalists, 1787–1788 (Indianapolis: Liberty Fund, 1998).
  • Alexis de Tocqueville, Democracy in America, ed. by Phillips Bradley. 2 vols. (New York: Alfred A. Knopf, 1945).
  • M. J. C. Vile, Constitutionalism and the Separation of Powers (Indianapolis: Liberty Fund, 1998).

APPENDIX A

The Federalist No. 10

James Madison

November 22, 1787

To the People of the State of New York.

Among the numerous advantages promised by a well constructed Union, none deserves to be more accurately developed than its tendency to break and control the violence of faction. The friend of popular governments never finds himself so much alarmed for their character and fate as when he contemplates their propensity to this dangerous vice. He will not fail, therefore, to set a due value on any plan which, without violating the principles to which he is attached, provides a proper cure for it. The instability, injustice and confusion introduced into the public councils have, in truth, been the mortal diseases under which popular governments have every where perished, as they continue to be the favorite and fruitful topics from which the adversaries to liberty derive their most specious declamations. The valuable improvements made by the American Constitution on the popular models, both ancient and modern, cannot certainly be too much admired; but it would be an unwarrantable partiality to contend that they have as effectually obviated the danger on this side as was wished and expected. Complaints are every where heard from our most considerate and virtuous citizens, equally the friends of public and private faith, and of public and personal liberty, that our governments are too unstable, that the public good is disregarded in the conflicts of rival parties, and that measures are too often decided, not according to the rules of justice, and the rights of the minor party, but by the superior force of an interested and over-bearing majority. However anxiously we may wish that these complaints had no foundation, the evidence of known facts will not permit us to deny that they are in some degree true. It will be found indeed, on a candid review of our situation, that some of the distresses under which we labor have been erroneously charged on the operation of our governments; but it will be found, at the same time, that other causes will not alone account for many of our heaviest misfortunes; and particularly, for that prevailing and increasing distrust of public engagements, and alarm for private rights, which are echoed from one end of the continent to the other. These must be chiefly, if not wholly, effects of the unsteadiness and injustices, with which a factious spirit has tainted our public administration.

By a faction I understand a number of citizens, whether amounting to a majority or minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.

There are two methods of curing the mischiefs of faction: the one, by removing its causes; the other, by controlling its effects.

There are again two methods of removing the causes of faction: the one by destroying the liberty which is essential to its existence; the other, by giving to every citizen the same opinions, the same passions, and the same interests.

It could never be more truly said than of the first remedy that it is worse than the disease. Liberty is to faction what air is to fire, an aliment without which it instantly expires. But it could not be less folly to abolish liberty, which is essential to political life, because it nourishes faction, than it would be to wish the annihilation of air, which is essential to animal life, because it imparts to fire its destructive agency.

The second expedient is as impracticable, as the first would be unwise. As long as the reason of man continues fallible, and he is at liberty to exercise it, different opinions will be formed. As long as the connection subsists between his reason and his self-love, his opinions and his passions will have a reciprocal influence on each other; and the former will be objects to which the latter will attach themselves. The diversity in the faculties of men, from which the rights of property originate, is not less an insuperable obstacle to a uniformity of interests. The protection of these faculties is the first object of Government. From the protection of different and unequal faculties of acquiring property, the possession of different degrees and kinds of property immediately results: and from the influence of these on the sentiments and views of the respective proprietors ensues a division of the society into different interests and parties.

The latent causes of faction are thus sown in the nature of man; and we see them every where brought into different degrees of activity, according to the different circumstances of civil society. A zeal for different opinions concerning religion, concerning Government and many other points, as well of speculation as of practice; an attachment to different leaders ambitiously contending for pre-eminence and power; or to persons of other descriptions whose fortunes have been interesting to the human passions, have in turn divided mankind into parties, inflamed them with mutual animosity, and rendered them much more disposed to vex and oppress each other, than to co-operate for their common good. So strong is this propensity of mankind to fall into mutual animosities, that where no substantial occasion presents itself, the most frivolous and fanciful distinctions have been sufficient to kindle their unfriendly passions, and excite their most violent conflicts. But the most common and durable source of factions has been the various and unequal distribution of property. Those who hold, and those who are without property, have ever formed distinct interests in society. Those who are creditors, and those who are debtors, fall under a like discrimination. A landed interest, a manufacturing interest, a mercantile interest, a monied interest, with many lesser interests, grow up of necessity in civilized nations, and divide them into different classes, actuated by different sentiments and views. The regulation of these various and interfering interests forms the principal task of modern Legislation, and involves the spirit of party and faction in the necessary and ordinary operations of Government.

No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity. With equal, nay with greater reason, a body of men are unfit to be both judges and parties at the same time; yet, what are many of the most important acts of legislation but so many judicial determinations, not indeed concerning the rights of single persons, but concerning the rights of large bodies of citizens; and what are the different classes of legislators but advocates and parties to the causes which they determine? Is a law proposed concerning private debts? It is a question to which the creditors are parties on one side, and the debtors on the other. Justice ought to hold the balance between them. Yet the other parties are and must be themselves the judges; and the most numerous party, or, in other words, the most powerful faction, must be expected to prevail. Shall domestic manufactures be encouraged, and in what degree, by restrictions on foreign manufactures? are questions which would be differently decided by the landed and the manufacturing classes; and probably by neither, with a sole regard to justice and the public good. The apportionment of taxes on the various descriptions of property is an act which seems to require the most exact impartiality; yet, there is perhaps no legislative act in which greater opportunity and temptation are given to a predominant party, to trample on the rules of justice. Every shilling with which they over-burden the inferior number is a shilling saved to their own pockets.

It is in vain to say that enlightened statesmen will be able to adjust these clashing interests and render them all subservient to the public good. Enlightened statesmen will not always be at the helm: Nor, in many cases, can such an adjustment be made at all, without taking into view indirect and remote considerations, which will rarely prevail over the immediate interest which one party may find in disregarding the rights of another, or the good of the whole.

The inference to which we are brought is that the causes of faction cannot be removed and that relief is only to be sought in the means of controlling its effects.

If a faction consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views by regular vote. It may clog the administration, it may convulse the society; but it will be unable to execute and mask its violence under the forms of the Constitution. When a majority is included in a faction, the form of popular government on the other hand enables it to sacrifice to its ruling passion or interest, both the public good and the rights of other citizens. To secure the public good, and private rights against the danger of such a faction, and at the same time to preserve the spirit and the form of popular government, is then the great object to which our enquiries are directed. Let me add that it is the great desideratum by which alone this form of government can be rescued from the opprobrium under which it has so long labored and be recommended to the esteem and adoption of mankind.

By what means is this object attainable? Evidently by one of two only. Either the existence of the same passion or interest in a majority at the same time must be prevented, or the majority, having such co-existent passion or interest, must be rendered, by their number and local situation, unable to concert and carry into effect schemes of oppression. If the impulse and the opportunity be suffered to coincide, we well know that neither moral nor religious motives can be relied on as an adequate control. They are not found to be such on the injustice and violence of individuals, and lose their efficacy in proportion to the number combined together, that is, in proportion as their efficacy becomes needful.

From this view of the subject, it may be concluded that a pure democracy, by which I mean, a society, consisting of a small number of citizens who assemble and administer the Government in person, can admit of no cure for the mischiefs of faction. A common passion or interest will, in almost every case, be felt by a majority of the whole; a communication and concert results from the form of Government itself; and there is nothing to check the inducements to sacrifice the weaker party, or an obnoxious individual. Hence it is, that such democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security, or the rights of property; and have in general been as short in their lives, as they have been violent in their deaths. Theoretic politicians, who have patronized this species of Government, have erroneously supposed, that by reducing mankind to a perfect equality in their political rights, they would, at the same time, be perfectly equalized and assimilated in their possessions, their opinions, and their passions.

A Republic, by which I mean a Government in which the scheme of representation takes place, opens a different prospect, and promises the cure for which we are seeking. Let us examine the points in which it varies from pure democracy, and we shall comprehend both the nature of the cure, and the efficacy which it must derive from the Union.

The two great points of difference between a Democracy and a Republic are: first, the delegation of the Government, in the latter, to a small number of citizens elected by the rest: secondly, the greater number of citizens and greater sphere of country over which the latter may be extended.

The effect of the first difference is, on the one hand, to refine and enlarge the public views by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations. Under such a regulation, it may well happen that the public voice pronounced by the representatives of the people will be more consonant to the public good than if pronounced by the people themselves convened for the purpose. On the other hand, the effect may be inverted. Men of factious tempers, of local prejudices, or of sinister designs, may by intrigue, by corruption or by other means, first obtain the suffrages, and then betray the interests of the people. The question resulting is, whether small or extensive Republics are most favorable to the election of proper guardians of the public weal: and it is clearly decided in favor of the latter by two obvious considerations.

In the first place it is to be remarked that however small the Republic may be, the Representatives must be raised to a certain number in order to guard against the cabals of a few; and that however large it may be, they must be limited to a certain number in order to guard against the confusion of a multitude. Hence the number of Representatives in the two cases, not being in proportion to that of the Constituents, and being proportionally greatest in the small Republic, it follows, that if the proportion of fit characters be not less in the large than in the small Republic, the former will present a greater option, and consequently a greater probability of a fit choice.

In the next place, as each Representative will be chosen by a greater number of citizens in the large than in the small Republic, it will be more difficult for unworthy candidates to practice with success the vicious arts by which elections are too often carried; and the suffrages of the people being more free, will be more likely to center on men who possess the most attractive merit, and the most diffusive and established characters.

It must be confessed that in this, as in most other cases, there is a mean on both sides of which inconveniences will be found to lie. By enlarging too much the number of electors, you render the representative too little acquainted with all their local circumstances and lesser interests; as by reducing it too much, you render him unduly attached to these, and too little fit to comprehend and pursue great and national objects. The Federal Constitution forms a happy combination in this respect; the great and aggregate interests being referred to the national, the local and in particular to the State legislatures.

The other point of difference is the greater number of citizens and extent of territory which may be brought within the compass of Republican than of Democratic Government; and it is this circumstance principally which renders factious combinations less to be dreaded in the former than in the latter. The smaller the society, the fewer probably will be the distinct parties and interests composing it; the fewer the distinct parties and interests, the more frequently will a majority be found of the same party; and the smaller the number of individuals composing a majority, and the smaller the compass within which they are placed, the more easily will they concert and execute their plans of oppression. Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength and to act in unison with each other. Besides other impediments, it may be remarked, that where there is a consciousness of unjust or dishonorable purposes, communication is always checked by distrust in proportion to the number whose concurrence is necessary.

Hence, it clearly appears that the same advantage which a Republic has over a Democracy in controlling the effects of faction is enjoyed by a large over a small Republic—is enjoyed by the Union over the States composing it. Does this advantage consist in the substitution of Representatives whose enlightened views and virtuous sentiments render them superior to local prejudices and to schemes of injustice? It will not be denied that the Representation of the Union will be most likely to possess these requisite endowments. Does it consist in the greater security afforded by a greater variety of parties, against the event of any one party being able to outnumber and oppress the rest? In an equal degree does the increased variety of parties comprised within the Union increase this security? Does it, in fine, consist in the greater obstacles opposed to the concert and accomplishment of the secret wishes of an unjust and interested majority? Here again the extent of the Union gives it the most palpable advantage.

The influence of factious leaders may kindle a flame within their particular States, but will be unable to spread a general conflagration through the other States. A religious sect may degenerate into a political faction in a part of the Confederacy; but the variety of sects dispersed over the entire face of it must secure the national Councils against any danger from that source. A rage for paper money, for an abolition of debts, for an equal division of property, or for any other improper or wicked project, will be less apt to pervade the whole body of the Union than a particular member of it, in the same proportion as such a malady is more likely to taint a particular county or district than an entire State.

In the extent and proper structure of the Union, therefore, we behold a Republican remedy for the diseases most incident to Republican Government. And according to the degree of pleasure and pride we feel in being Republicans ought to be our zeal in cherishing the spirit, and supporting the character of federalists.

publius.

APPENDIX B

The Federalist No. 45

James Madison

January 26, 1788

To the People of the State of New York.

Having shown that no one of the powers transferred to the Federal Government is unnecessary or improper, the next question to be considered is whether the whole mass of them will be dangerous to the portion of authority left in the several States.

The adversaries to the plan of the Convention instead of considering in the first place what degree of power was absolutely necessary for the purposes of the Federal Government, have exhausted themselves in a secondary enquiry into the possible consequences of the proposed degree of power to the Governments of the particular States. But if the Union, as has been shown, be essential to the security of the people of America against foreign danger; if it be essential to their security against contentions and wars among the different States; if it be essential to guard them against those violent and oppressive factions which embitter the blessings of liberty, and against those military establishments which must gradually poison its very fountain; if, in a word the Union be essential to the happiness of the people of America, is it not preposterous to urge as an objection to a Government, without which the objects of the Union cannot be attained, that such a Government may derogate from the importance of the Governments of the individual States? Was, then, the American revolution effected, was the American confederacy formed, was the precious blood of thousands spilt, and the hard earned substance of millions lavished, not that the people of America should enjoy peace, liberty and safety, but that the Governments of the individual States, that particular municipal establishments, might enjoy a certain extent of power and be arrayed with certain dignities and attributes of sovereignty? We have heard of the impious doctrine in the old world that the people were made for kings, not kings for the people. Is the same doctrine to be revived in the new, in another shape—that the solid happiness of the people is to be sacrificed to the views of political institutions of a different form? It is too early for politicians to presume on our forgetting that the public good, the real welfare of the great body of the people, is the supreme object to be pursued; and that no form of Government whatever has any other value than as it may be fitted for the attainment of this object. Were the plan of the Convention adverse to the public happiness, my voice would be, Reject the plan. Were the Union itself inconsistent with the public happiness, it would be, Abolish the Union. In like manner, as far as the sovereignty of the States cannot be reconciled to the happiness of the people, the voice of every good citizen must be, Let the former be sacrificed to the latter. How far the sacrifice is necessary has been shown. How far the unsacrificed residue will be endangered is the question before us.

Several important considerations have been touched in the course of these papers, which discountenance the supposition that the operation of the Federal Government will by degrees prove fatal to the State Governments. The more I revolve the subject, the more fully I am persuaded that the balance is much more likely to be disturbed by the preponderancy of the last than of the first scale.

We have seen in all the examples of ancient and modern confederacies, the strongest tendency continually betraying itself in the members to despoil the general Government of its authorities, with a very ineffectual capacity in the latter to defend itself against the encroachments. Although in most of these examples the system has been so dissimilar from that under consideration as greatly to weaken any inference concerning the latter from the fate of the former, yet, as the States will retain under the proposed Constitution a very extensive portion of active sovereignty, the inference ought not to be wholly disregarded. In the Archæn league, it is probable that the federal head had a degree and species of power, which gave it a considerable likeness to the government framed by the Convention. The Lycian confederacy, as far as its principles and form are transmitted, must have borne a still greater analogy to it. Yet history does not inform us that either of them ever degenerated or tended to degenerate into one consolidated government. On the contrary, we know that the ruin of one of them proceeded from the incapacity of the federal authority to prevent the dissensions, and finally the disunion, of the subordinate authorities. These cases are the more worthy of our attention, as the external causes by which the component parts were pressed together, were much more numerous and powerful than in our case; and consequently, less powerful ligaments within would be sufficient to bind the members to the head, and to each other.

In the feudal system we have seen a similar propensity exemplified. Notwithstanding the want of proper sympathy in every instance between the local sovereigns and the people, and the sympathy in some instances between the general sovereign and the latter, it usually happened that the local sovereigns prevailed in the rivalship for encroachments. Had no external dangers enforced internal harmony and subordination, and particularly, had the local sovereigns possessed the affections of the people, the great kingdoms in Europe would at this time consist of as many independent princes as there were formerly feudatory barons.

The State Governments will have the advantage of the Federal Government, whether we compare them in respect to the immediate dependence of the one or the other; to the weight of personal influence which each side will possess; to the powers respectively vested in them; to the predilection and probable support of the people; to the disposition and faculty of resisting and frustrating the measures of each other.

The State Governments may be regarded as constituent and essential parts of the Federal Government; whilst the latter is nowise essential to the operation or organization of the former. Without the intervention of the State Legislatures, the President of the United States cannot be elected at all. They must in all cases have a great share in his appointment, and will perhaps in most cases of themselves determine it. The Senate will be elected absolutely and exclusively by the State Legislatures. Even the House of Representatives, though drawn immediately from the people, will be chosen very much under the influence of that class of men whose influence over the people obtains for themselves an election into the State Legislatures. Thus, each of the principal branches of the Federal Government will owe its existence more or less to the favor of the State Governments, and must consequently feel a dependence, which is much more likely to beget a disposition too obsequious than too overbearing towards them. On the other side, the component parts of the State Government will in no instance be indebted for their appointment to the direct agency of the Federal government, and very little, if at all, to the local influence of its members.

The number of individuals employed under the Constitution of the United States will be much smaller than the number employed under the particular States. There will consequently be less of personal influence on the side of the former than of the latter. The members of the legislative, executive and judiciary departments of thirteen and more States, the justices of the peace, officers of militia, ministerial officers of justice, with all the county, corporation, and town-officers, for three millions and more of people, intermixed and having particular acquaintance with every class and circle of people must exceed, beyond all proportion, both in number and influence, those of every description who will be employed in the administration of the federal system. Compare the members of the three great departments of the thirteen States, excluding from the judiciary department the justices of peace, with the members of the corresponding departments of the single Government of the Union; compare the militia officers of three millions of people with the military and marine officers of any establishment which is within the compass of probability, or, I may add, of possibility, and in this view alone, we may pronounce the advantage of the States to be decisive. If the Federal Government is to have collectors of revenue, the State Governments will have theirs also. And as those of the former will be principally on the sea-coast, and not very numerous, whilst those of the latter will be spread over the face of the country, and will be very numerous, the advantage in this view also lies on the same side. It is true that the Confederacy is to possess, and may exercise, the power of collecting internal as well as external taxes throughout the States; but it is probable that this power will not be resorted to, except for supplement purposes of revenue; that an option will then be given to the States to supply their quotas by previous collections of their own; and that the eventual collection under the immediate authority of the Union will generally be made by the officers, and according to the rules, appointed by the several States. Indeed it is extremely probable that in other instances, particularly in the organization of the judicial power, the officers of the States will be clothed with the correspondent authority of the Union. Should it happen, however, that separate collections of internal revenue should be appointed under the Federal Government, the influence of the whole number would not bear a comparison with that of the multitude of State officers in the opposite scale. Within every district to which a Federal collector would be allotted, there would not be less than thirty or forty, or even more, officers of different descriptions, and many of them persons of character and weight whose influence would lie on the side of the State.

The powers delegated by the proposed Constitution to the Federal Government are few and defined. Those which are to remain in the State Governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties and properties of the people; and the internal order, improvement, and prosperity of the State.

The operations of the Federal Government will be most extensive and important in times of war and danger; those of the State Governments in times of peace and security. As the former periods will probably bear a small proportion to the latter, the State Governments will here enjoy another advantage over the Federal Government. The more adequate, indeed, the Federal powers may be rendered to the national defence, the less frequent will be those scenes of danger which might favor their ascendancy over the governments of the particular States.

If the new Constitution be examined with accuracy and candor, it will be found that the change which it proposes consists much less in the addition of new powers to the Union, than in the invigoration of its original powers. The regulation of commerce, it is true, is a new power; but that seems to be an addition which few oppose, and from which no apprehensions are entertained. The powers relating to war and peace, armies and fleets, treaties and finance, with the other more considerable powers, are all vested in the existing Congress by the Articles of Confederation. The proposed change does not enlarge these powers; it only substitutes a more effectual mode of administering them. The change relating to taxation may be regarded as the most important; and yet the present Congress have as complete authority to require of the States indefinite supplies of money for the common defence and general welfare as the future Congress will have to require them of individual citizens; and the latter will be no more bound than the States themselves have been to pay the quotas respectively taxed on them. Had the States complied punctually with the Articles of Confederation, or could their compliance have been enforced by as peaceable means as may be used with success towards single persons, our past experience is very far from countenancing an opinion that the State Governments would have lost their constitutional powers, and have gradually undergone an entire consolidation. To maintain that such an event would have ensued would be to say at once that the existence of the State Governments is incompatible with any system whatever that accomplishes the essential purposes of the Union.

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APPENDIX C

The Federalist No. 47

James Madison

January 30, 1788

To the People of the State of New York.

Having reviewed the general form of the proposed government and the general mass of power allotted to it, I proceed to examine the particular structure of this government, and the distribution of this mass of power among its constituent parts.

One of the principal objections inculcated by the more respectable adversaries to the constitution is its supposed violation of the political maxim that the legislative, executive and judiciary departments ought to be separate and distinct. In the structure of the Federal government, no regard, it is said, seems to have been paid to this essential precaution in favor of liberty. The several departments of power are distributed and blended in such a manner as at once to destroy all symmetry and beauty of form, and to expose some of the essential parts of the edifice to the danger of being crushed by the disproportionate weight of other parts.

No political truth is certainly of greater intrinsic value or is stamped with the authority of more enlightened patrons of liberty than that on which the objection is founded. The accumulation of all powers legislative, executive and judiciary in the same hands, whether of one, a few or many, and whether hereditary, self appointed, or elective, may justly be pronounced the very definition of tyranny. Were the Federal Constitution therefore really chargeable with this accumulation of power or with a mixture of powers having a dangerous tendency to such an accumulation, no further arguments would be necessary to inspire a universal reprobation of the system. I persuade myself, however, that it will be made apparent to every one that the charge cannot be supported, and that the maxim on which it relies has been totally misconceived and misapplied. In order to form correct ideas on this important subject, it will be proper to investigate the sense in which the preservation of liberty requires that the three great departments of power should be separate and distinct.

The oracle who is always consulted and cited on this subject is the celebrated Montesquieu. If he be not the author of this invaluable precept in the science of politics, he has the merit at least of displaying and recommending it most effectually to the attention of mankind. Let us endeavour in the first place to ascertain his meaning on this point.

The British Constitution was to Montesquieu what Homer has been to the didactic writers on epic poetry. As the latter have considered the work of the immortal bard as the perfect model from which the principles and rules of the epic art were to be drawn, and by which all similar works were to be judged, so this great political critic appears to have viewed the constitution of England as the standard, or to use his own expression, as the mirror of political liberty; and to have delivered, in the form of elementary truths, the several characteristic principles of that particular system. That we may be sure, then, not to mistake his meaning in this case, let us recur to the source from which the maxim was drawn.

On the slightest view of the British Constitution we must perceive that the legislative, executive, and judiciary departments are by no means totally separate and distinct from each other. The executive magistrate forms an integral part of the legislative authority. He alone has the prerogative of making treaties with foreign sovereigns, which when made have, under certain limitations, the force of legislative acts. All the members of the judiciary department are appointed by him, can be removed by him on the address of the two Houses of Parliament, and form, when he pleases to consult them, one of his constitutional councils. One branch of the legislative department forms also a great constitutional council to the executive chief, as on another hand, it is the sole depository of judicial power in cases of impeachment, and is invested with the supreme appellate jurisdiction in all other cases. The judges, again, are so far connected with the legislative department as often to attend and participate in its deliberations, though not admitted to a legislative vote.

From these facts, by which Montesquieu was guided, it may clearly be inferred that in saying “there can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates,” or “if the power of judging be not separated from the legislative and executive powers,” he did not mean that these departments ought to have no partial agency in, or no control over, the acts of each other. His meaning, as his own words import, and still more conclusively as illustrated by the example in his eye, can amount to no more than this, that where the whole power of one department is exercised by the same hands which possess the whole power of another department, the fundamental principles of a free constitution are subverted. This would have been the case in the constitution examined by him, if the King, who is the sole executive magistrate, had possessed also the complete legislative power, or the supreme administration of justice; or if the entire legislative body had possessed the supreme judiciary, or the supreme executive authority. This, however, is not among the vices of that constitution. The magistrate in whom the whole executive power resides cannot of himself make a law, though he can put a negative on every law, nor administer justice in person, though he has the appointment of those who do administer it. The judges can exercise no executive prerogative, though they are shoots from the executive stock; nor any legislature function, though they may be advised with by the legislative councils. The entire legislature can perform no judiciary act, though by the joint act of two of its branches, the judges may be removed from their offices, and though one of its branches is possessed of the judicial power in the last resort. The entire legislature, again, can exercise no executive prerogative, though one of its branches constitutes the supreme executive magistracy, and another, on the impeachment of a third, can try and condemn all the subordinate officers in the executive department.

The reasons on which Montesquieu grounds his maxim are a further demonstration of his meaning. “When the legislative and executive powers are united in the same person or body,” says he, “there can be no liberty, because apprehensions may arise lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.” Again, “Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislator. Were it joined to the executive power, the judge might behave with all the violence of an oppressor.” Some of these reasons are more fully explained in other passages; but briefly stated as they are here, they sufficiently establish the meaning which we have put on this celebrated maxim of this celebrated author.

If we look into the constitutions of the several States we find that, notwithstanding the emphatical and, in some instances, the unqualified terms in which this axiom has been laid down, there is not a single instance in which the several departments of power have been kept absolutely separate and distinct. New Hampshire, whose constitution was the last formed, seems to have been fully aware of the impossibility and inexpediency of avoiding any mixture whatever of these departments, and has qualified the doctrine by declaring “that the legislative, executive and judiciary powers ought to be kept as separate from, and independent of each other as the nature of a free government will admit; or as is consistent with that chain of connection, that binds the whole fabric of the constitution in one indissoluble bond of unity and amity.” Her constitution accordingly mixes these departments in several respects. The Senate, which is a branch of the legislative department, is also a judicial tribunal for the trial of impeachments. The President, who is the head of the executive department, is the presiding member also of the Senate; and besides an equal vote in all cases, has a casting vote in case of a tie. The executive head is himself eventually elective every year by the legislative department; and his council is every year chosen by and from the members of the same department. Several of the officers of state are also appointed by the legislature. And the members of the judiciary department are appointed by the executive department.

The constitution of Massachusetts has observed a sufficient though less pointed caution in expressing this fundamental article of liberty. It declares “that the legislative department shall never exercise the executive and judicial powers, or either of them: The executive shall never exercise the legislative and judicial powers, or either of them: The judicial shall never exercise the legislative and executive powers, or either of them.” This declaration corresponds precisely with the doctrine of Montesquieu, as it has been explained, and is not in a single point violated by the plan of the Convention. It goes no farther than to prohibit any one of the entire departments from exercising the powers of another department. In the very constitution to which it is prefixed, a partial mixture of powers has been admitted. The Executive Magistrate has a qualified negative on the legislative body; and the Senate, which is a part of the Legislature, is a court of impeachment for members both of the executive and judiciary departments. The members of the judiciary department, again, are appointable by the executive department, and removable by the same authority on the address of the two legislative branches. Lastly, a number of the officers of government are annually appointed by the legislative department. As the appointment to offices, particularly executive offices, is in its nature an executive function, the compilers of the Constitution have, in this last point at least, violated the rule established by themselves.

I pass over the constitutions of Rhode-Island and Connecticut, because they were formed prior to the revolution and even before the principle under examination had become an object of political attention.

The constitution of New-York contains no declaration on this subject, but appears very clearly to have been framed with an eye to the danger of improperly blending the different departments. It gives, nevertheless, to the executive magistrate a partial control over the legislative department, and what is more, gives a like control to the judiciary department, and even blends the executive and judiciary departments in the exercise of this control. In its council of appointment, members of the legislative are associated with the executive authority in the appointment of officers, both executive and judiciary. And its court for the trial of impeachments and correction of errors is to consist of one branch of the legislature and the principal members of the judiciary department.

The constitution of New-Jersey has blended the different powers of government more than any of the preceding. The governor, who is the executive magistrate, is appointed by the legislature; is chancellor and ordinary, or surrogate of the State; is a member of the Supreme Court of Appeals, and president, with a casting vote, of one of the legislative branches. The same legislative branch acts again as executive council to the governor, and with him constitutes the Court of Appeals. The members of the judiciary department are appointed by the legislative department, and removable by one branch of it, on the impeachment of the other.

According to the constitution of Pennsylvania, the president, who is head of the executive department, is annually elected by a vote in which the legislative department predominates. In conjunction with an executive council, he appoints the members of the judiciary department and forms a court of impeachments for trial of all officers, judiciary as well as executive. The judges of the Supreme Court and justices of the peace seem also to be removable by the legislature; and the executive power of pardoning, in certain cases, to be referred to the same department. The members of the executive council are made ex officio justices of peace throughout the State.

In Delaware, the chief executive magistrate is annually elected by the legislative department. The speakers of the two legislative branches are vice-presidents in the executive department. The executive chief, with six others, appointed three by each of the legislative branches, constitute the Supreme Court of Appeals; he is joined with the legislative department in the appointment of the other judges. Throughout the States it appears that the members of the legislature may at the same time be justices of the peace. In this State, the members of one branch of it are ex officio justices of peace; as are also the members of the executive council. The principal officers of the executive department are appointed by the legislative; and one branch of the latter forms a court of impeachments. All officers may be removed on address of the legislature.

Maryland has adopted the maxim in the most unqualified terms; declaring that the legislative, executive and judicial powers of government ought to be forever separate and distinct from each other. Her constitution, notwithstanding, makes the executive magistrate appointable by the legislative department; and the members of the judiciary by the executive department.

The language of Virginia is still more pointed on this subject. Her constitution declares “that the legislative, executive and judiciary departments, shall be separate and distinct; so that neither exercise the powers properly belonging to the other; nor shall any person exercise the powers of more than one of them at the same time; except that the justices of the county courts shall be eligible to either house of assembly.” Yet we find not only this express exception, with respect to the members of the inferior courts, but that the chief magistrate with his executive council are appointable by the legislature; that two members of the latter are triennially displaced at the pleasure of the legislature; and that all the principal offices, both executive and judiciary, are filled by the same department. The executive prerogative of pardon, also, is in one case vested in the legislative department.

The constitution of North-Carolina, which declares “that the legislative, executive and supreme judicial powers of government ought to be forever separate and distinct from each other,” refers at the same time to the legislative department, the appointment not only of the executive chief, but all the principal officers within both that and the judiciary department.

In South-Carolina, the constitution makes the executive magistracy eligible by the legislative department. It gives to the latter, also, the appointment of the members of the judiciary department, including even justices of the peace and sheriffs; and the appointment of officers in the executive department, down to captains in the army and navy of the State.

In the constitution of Georgia, where it is declared “that the legislative, executive and judiciary departments shall be separate and distinct, so that neither exercise the powers properly belonging to the other,” we find that the executive department is to be filled by appointments of the legislature; and the executive prerogative of pardon to be finally exercised by the same authority. Even justices of the peace are to be appointed by the legislature.

In citing these cases in which the legislative, executive, and judiciary departments have not been kept totally separate and distinct, I wish not to be regarded as an advocate for the particular organizations of the several State governments. I am fully aware that among the many excellent principles which they exemplify, they carry strong marks of the haste, and still stronger of the inexperience, under which they were framed. It is but too obvious that in some instances the fundamental principle under consideration has been violated by too great a mixture, and even an actual consolidation of the different powers; and that in no instance has a competent provision been made for maintaining in practice the separation delineated on paper. What I have wished to evince is that the charge brought against the proposed Constitution of violating a sacred maxim of free government is warranted neither by the real meaning annexed to that maxim by its author, nor by the sense in which it has hitherto been understood in America. This interesting subject will be resumed in the ensuing paper.

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The opinion of The Federalist has always been considered as of great authority. It is a complete commentary on our Constitution, and is appealed to by all parties in the questions to which that instrument has given birth. Its intrinsic merit entitles it to this high rank, and the part two of its authors performed in framing the Constitution, put it very much in their power to explain the views with which it was framed.

Chief Justice John Marshall, in Cohens v. Virginia (1821)