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The Constitution Limits and Distributes Power - 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.


The Constitution Limits and Distributes Power

The question was one of power, the Federalists arguing that the Articles of Confederation conferred too little power on the Federal government, and the Anti-Federalists asserting that the Constitution gave it too much. Conceding the point that the Constitution clearly increased the powers of the Federal government, the Federalists nonetheless insisted that the document had been carefully drafted to limit those powers. These limitations were sufficient, they contended, to allow for healthy and vigorous government, while at the same time preventing abuses of power. It was to be a powerful government, more powerful than the American people had known since the Revolution, the Federalists admitted. But it was not so powerful as to constitute a serious threat to liberty, and certainly not as powerful as the English monarchy.

This was true, said “Publius,” because the Constitution disallowed concentrations of power. No single government, either Federal or State, possessed all the powers of government. Political power, in general, was divided between two levels of government under the principle of federalism. The national government was to be a government of limited and enumerated powers that were specifically laid out in the Constitution. Those powers not delegated to the national government remained with the States as “reserved” powers. The limited power that the national government possessed was further restricted because it was separated among three relatively independent branches—Congress, the President, and the Judiciary. This provided the machinery for the responsible exercise of power. The problem with the Articles of Confederation was that they did not provide for a proper distribution of power. Too much power had been concentrated in the States, making it difficult for the national government to deal effectively with foreign governments, interstate rivalries, insurrections, and military threats. And, what little power the national government did possess was concentrated in one branch—Congress. The government of the United States under the Articles thus suffered from “anarchy in the parts” rather than “tyranny in the head.” It was so weak, the Federalists argued, that it could not promote economic prosperity or provide for the safety of the people. These were the bare essentials of government. The new Constitution, as the Preamble stated, promised to “establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty. …”

The first step in gaining public support for the proposed Constitution was to explain and justify the redistribution of power crafted by the Framers. The American system of federalism, unprecedented in the history of nations, was a unique arrangement that seemed foreign to some and unworkable to others. What was the nature of this new union? If sovereignty was to be divided between the general or Federal government and the States, who had ultimate authority to govern? These were difficult questions, but the authors of The Federalist answered them with consummate skill.

The nature of the new union, explained Madison, was neither wholly national nor wholly federal, but contained both national and federal elements. Regarding the basic foundation of the government, it was federal because the Constitution must be ratified by the several States. With respect to the legislature, the new Union was partly national and partly federal, one house resting on a national and the other on a federal basis. The presidency was also partly national and partly federal, since the electoral vote was distributed partly in accordance with the principle of State equality, and partly according to population. Considering the operation of the government, it was seen as national rather than federal, inasmuch as it acted directly on individuals and not through the States. In the extent of its powers, however, the Union was federal because its jurisdiction was limited to specific objects, and all else was left to the States. Thus the government of the United States was to be neither a pure confederacy nor a “consolidated republic,” but a new type of government, in a class by itself.

The States had not been reduced to provinces, the Federalists insisted, but remained in possession of “certain exclusive and very important portions of sovereign power.” They still held “all the rights of sovereignty which were not … exclusively delegated to the United States.” In a consolidated system, the local authorities are subject to control by the central government; but in the proposed Union the local authorities form distinct and independent portions of the supremacy, no more subject to the general authority than the general authority is to them within its own sphere.” The States may not be completely sovereign, but they did have a residuary sovereignty.

Such was the nature of legal sovereignty under the Constitution. Real or political sovereignty rested, of course, not with the Federal or State governments, but with the “people.” “The ultimate authority,” concluded The Federalist, “resides in the people alone.”

It therefore followed that the federal principle, woven into the entire fabric of the Constitution, would limit the power of both the Federal and State governments, while happily combining the best characteristics of both. The Anti-Federalists’ claim that the Federal government would usurp the powers of the States, argued Madison in Federalist 45, was false. It was more likely that the States would continue to dominate the national government. They had the advantage with respect “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.”

Of paramount importance under the new scheme were the State legislatures. The President could not even be elected unless they acted. They played a key role in his election. Moreover, they elected the members of the Senate and would probably influence the election of members of the House of Representatives as well. Both the legislative and executive branches of the Federal government, in other words, owed their very existence to the State legislatures. Added to this, the States would exercise far more influence in public affairs because more people were employed under their authority than under that of the general government. “The members of the legislative, executive and judiciary departments of thirteen and more States; the justices of 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.”

Accustomed to their own State constitutions, which except in Massachusetts and a few other States generally failed to provide for sufficient checks and balances, some Anti-Federalists also criticized the separation of powers system of the Constitution. There was too much “blending,” they argued, and the departments ought to be kept wholly separate and distinct. Not all Anti-Federalists shared this view, however, and many accepted the argument of Madison in Federalist 47 that some overlapping of functions was necessary in order to prevent one branch from encroaching upon the functions of another. Hence the issue of separation of powers did not become a major bone of contention in the struggle over ratification of the Constitution. The Anti-Federalists were preoccupied with the question of States’ Rights. This was the theme song of their campaign against the Constitution.

In response to the many complaints that the proposed Constitution not only redistributed power improperly but also failed to limit the powers that had now been shifted to the Federal government, the authors of The Federalist assured their adversaries that such fears were unfounded. “The powers delegated by the proposed Constitution to the Federal government,” said Madison in Federalist 45, “are few and defined. Those which are to remain in the State governments are numerous and indefinite.” The scope of Federal power would be limited primarily to military and foreign affairs, foreign commerce and taxation. The States, he continued, would retain full authority over matters pertaining to civil liberties and the rights of property, the internal affairs of the States, and the administration of law and order.