Guide to Understanding the Principles of the American Founding



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THE RISE AND FALL OF CONSTITUTIONAL GOVERNMENT IN AMERICA

A Guide to Understanding the Principles of the American Founding

Thomas G. West, Douglas A. Jeffrey The Claremont Institute www.claremont.org
This essay explains the principles of the American founding. It shows how those principles gave rise to constitutional government and a free society, and how freedom was extended to all Americans after the Civil War. It will also show how the Founders’ principles were opposed by a new theory that arose in the Progressive Era; how that new theory finally came to dominate American politics in the 1960s; and how that theory has changed our government and our society, and threatens our liberty.

PART I

THE THEORY OF THE AMERICAN FOUNDING: THE DECLARATION OF INDEPENDENCE

The Continental Congress declared America’s independence on July 2, 1776, but Americans celebrate their independence on July 4. This was the day the Founders signed the Declaration of Independence, which announced the principles justifying American independence. To understand America, principles are important in a way they are not to other countries. The principles of the Declaration are universal in character, derived from an understanding of human nature, or, as its first sentence puts it, the “Laws of Nature and of Nature’s God.” This is an important point: The American Revolution was not based on a tradition specifically tied to one people, such as “the rights of Englishmen,” but on ideas or principles true for all men everywhere. These principles are the discovery of human reason, because they are rooted in human nature. Religion and divine

revelation may confirm this discovery. A tradition may embody it. But they are knowable to any human mind reflecting on the nature of man. What are these principles?
EQUALITY

The Declaration’s statement of principles begins: “We hold these truths to be self-evident, that all men are created equal. . . .” Equality is the first self-evident truth, upon which the others rest. The important question is: equality in what sense? Humans obviously differ in intelligence, talents, beauty, strength, and many other attributes. What then did the Founders mean by calling human equality a “self-evident truth”? They meant something very definite: Human beings are equal in the life and liberty they are born with and deserve to keep. As stated in the first sentence of the Virginia Declaration of Rights of 1776, which became the model for several other states’ Bills of Rights: “all men are by nature equally free and independent.

In other words, although human beings are unequal in many ways, no one human or class of humans is superior to another human or class of humans in the way that all humans, since they are rational creatures, are superior to dumb beasts. No one who is not mentally deranged is irrational in the way that all cattle are irrational. James Madison explains in The Federalist 54 that every human being, but no cow, is held morally accountable for violence committed against others, because every man is free to choose his behavior. To that extent, all men are equal and therefore deserve to be treated as such. There is a second consideration pointing to the self-evident truth of equality. Not only does the lowliest person have some share in reason; the most excellent person has some share in selfish passion. However superior the best among us may be in regard to wisdom and virtue, no creature of flesh and bones is exempt from self-interest. No one can be presumed free from the temptation to abuse power over others. Therefore no human can be trusted with absolute power in the way that the most perfect being imaginable—God or an angel—could reasonably be trusted. “If angels were to govern men,” wrote Madison in The Federalist 51, “neither external nor internal controls on government would be necessary.” Fifty years after he wrote the Declaration, shortly before he died, Thomas Jefferson reiterated the Founders’ understanding of equality: “The mass of mankind has not been born with saddles on their backs, nor a favored few booted and spurred, ready to ride them legitimately, by the grace of God.”
NATURAL RIGHTS

The second self-evident truth announced in the Declaration is that human beings are “endowed by their Creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness.” This principle follows from, and explains, the principle of equality.

First, what is a “right”? According to the Founders, a right is a claim that a person may rightfully make against someone who would deprive him of what is his own. If you own something, like your clothes or your books, then you have a right to them. If someone takes them from you, then you have a legitimate claim against that person. He owes you your clothes or your books; he has a duty to give them back—or rather he has a duty not to take them in the first place.

A natural right, then, is a claim to what one rightfully owns by birth, or by way of one’s nature as a human being. Natural rights are unalienable because they cannot be alienated or given away to someone else. We should note also that a right from one point of view is a duty from another: if you have a right to liberty, I have a duty to respect that right. But how is it that a thing comes to belong to you? The Founders would have answered something like this: You are born with it, or you acquire it by means of something that is inherently yours, such as an effort of your mind or body, or by the free gift of someone else. You get your life from God and nature. You get your clothes or your books by paying for them with the money that you make from your own work or that someone voluntarily gives you.

It is only after you have acquired your property in some legitimate way that your right to own property comes into play. The Founders would not have said, as some people now think, that you have a “right” to decent housing, health care, recreation, or any other particular thing you want or need before you have worked to get them. That would mean that someone else has a duty to work to get clothes and books for you. This would be something like making that person your servant. It would be a violation of that person’s right to liberty.

The Declaration specifically mentions three unalienable rights of human beings, or possessions that all men everywhere have by birth or nature: life, liberty, and the pursuit of happiness. No one may rightfully deny us these things. It is worth remarking that the Declaration does not proclaim a right to happiness itself. Happiness, like property, is not something we have by nature. Rather we are born with minds and talents that we are free to use to pursue happiness.

The Declaration says that these three rights are “among” our natural rights. We may be said to have others in addition—although these additional rights might also be seen as part of the right to liberty. Among the most important of these additional rights, as we may read in other official documents of the founding period, are the rights of conscience and property. These rights, like the rights of free speech and a free press, came to be among those protected in the Constitution’s “Bill of Rights.”

The right of conscience means religious freedom. As explained in the Virginia Declaration of Rights of 1776: “religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and therefore all men are entitled to the free exercise of religion, according to the dictates of conscience.” Each of us has a right to worship God in his own way and time. No one may compel us to worship God in the way that he thinks best.

The right of religious liberty is not a right to exclude religion from public life, as is so often asserted now. In the minds of the Founders, religious liberty is certainly valuable as a means to prevent religious tyranny. Madison writes in The Federalist 51 that in a large republic, “the society itself will be broken down into so many parts, that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority. In a free government the security for civil rights must be the same as that for religious rights. It consists in the one case in the multiplicity of interests, and in the other in the multiplicity of sects.” But the same Madison, writing three years earlier in the Memorial and Remonstrance against Religious Assessments, said that the right of religious liberty “is in its nature an unalienable right. It is unalienable . . . because what is here a right towards men, is a duty towards the Creator. . . . This duty is precedent, both in order of time and degree of obligation, to the claims of civil society.” The right to religious liberty follows from the duty that all human beings owe to God. The deepest reason for religious liberty is not to free man from God and religion, but to free him to perform his duties to God without being coerced into an obnoxious mode of worship by the fallible human beings in government. As for property rights, they were at the heart of the dispute that led to the American Revolution. When Americans listed the rights of man, they often said “life, liberty, and property.” Boston’s “Rights of the Colonists” (1772) was typical: “Among the natural rights of the colonists are these: First, a right to life; secondly to liberty; thirdly to property. Property rights can also be seen as a part of the right to liberty or, equally, as a part of the right to pursue happiness. As James Madison explained in an essay titled “On Property,” “In a word, as a man is said to have a right to his property, he may be equally said to have a property in his rights.” The idea of a right to property begins with the fact that each man owns himself—by nature each man is his own ruler. Because we own ourselves, and our labor, we are free to work and keep the fruits

of our labor. And because one cannot be happy without some measure of property (i.e., clothes, food, shelter, and other things) and because it is necessary to make a living in order to acquire them, there is a natural right to work. Abraham Lincoln, a man who understood the principles of America as well as anyone, liked to call this the right of “free labor.” “Every man, said Lincoln, “is born with two hands, and one head, and one mouth. The plain implication is that the head should direct those hands in the feeding of that mouth.” The right to earn property, and to keep the property that one earns, is fundamental. The doctrine of natural rights recognizes the natural equality and, at the same time, the natural inequalities in human nature. Insofar as human beings are rational creatures with equal claims to life and liberty, they are rightfully treated the same. Insofar as they differ, they are rightfully treated differently: the talented, the hard-working, and the virtuous are allowed to display their superior qualities. The principles of America encourage these high traits and many others. They challenge every equal human being to aspire to their best.



CONSENT

The third self-evident truth in the Declaration is “That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.” The first question this answers is, Why do we need government?

Outside of government, people are in what the Founders called a “state of nature.” They have natural rights, but in this complete state of freedom (or rather anarchy) those rights are jeopardized. “[I]n a state of nature,” writes James Madison in The Federalist 51, “the weaker individual is not secured against the violence of the stronger.” In such a state, “even the stronger individuals are prompted, by the uncertainty of their condition, to submit to a government which may protect the weak as well as themselves.” Men living without government are tempted to act according to their selfish passions or interests rather than their reason. As Madison says, “If men were angels, no government would be necessary.” That is, human beings are not perfectly rational, or good. As a result, death, slavery, and misery characterize the state of nature. Therefore people join to form governments to secure their natural rights to life, liberty, and the pursuit of happiness.

This self-evident truth also answers the question, How should government operate? As the Declaration explains, governments must derive “their just powers from the consent of the governed.” The word just here means two things. First, the only legitimate powers of government are those that have been consented to by the people. For example, as the Declaration’s list of grievances shows, government acts tyrannically, or unjustly, when it acts without obtaining the consent of the people.

What the Founders called “republican government,” then, is the only fully legitimate form of government. A republic, Madison wrote in The Federalist 39, is a government which derives all its powers directly or indirectly from the great body of the people.”

But while consent is necessary for government power to be legitimate, consent in itself is not the sole standard of legitimacy or goodness. That is, the people do not have the right to consent to unjust powers. Put another way: Just because the people have consented to something does not make it right. We may only rightly or justly consent to those powers of government that do not violate the unalienable rights of individuals. And this points to the real challenge of self-government: Government must obtain the consent of the people, but the people must be of such a character that they will give their consent only to good or just measures. Consent must be enlightened consent, which means it must be consent with a view that the basis of one’s own right to give his consent is the same basis of the rights of others to give their consent. Consent has two aspects: consent in establishing government and consent in operating government. The first, which the Founders called the “social compact,” is nicely defined in the Massachusetts state constitution in 1780 as an associaton "by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good.” This occurred in America, for instance, when elected representatives in each state wrote the state constitutions, and again when delegates elected by the people of each state voted to ratify the U.S. Constitution of 1787. After the people join together to form a government, they must also give their consent, on a regular basis, to its operation. This requirement arises from the fact that the people are not only the source of political power, but that they retain their unalienable right to liberty and therefore may never delegate power to the government permanently. Thus the Declaration of Independence lists at least ten instances in which Britain violated the Americans’ right to ongoing consent to government, expressed through elected representatives. For example, the king had refused to approve laws passed by colonial legislatures “for the accommodation of large districts of people, unless those people would relinquish their

right of representation in the legislature, a right inestimable to them and formidable to tyrants only.” The king had also “kept among us in times of peace standing armies and ships of war without the consent of our legislatures.” Above all, Britain is condemned “for suspending our own legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.”

It is not good enough that rights be secured by a king or other unelected rulers. When conditions are favorable, the form of government most consistent with the equal liberty we are born with is democracy. As Thomas Jefferson wrote: “the republican is the only form of government which is not eternally at open or secret war with the rights of mankind.”


REVOLUTION

The Declaration’s statement of principles concludes: “whenever any Form of Government becomes destructive of these ends, it is the Right of the people to alter or abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form,

as to them shall seem most likely to effect their Safety and Happiness.” This right of revolution follows logically from the principles above. Government exists to protect natural rights, and government derives its just powers from consent. If it is not doing this, the people should get rid of it and set up a new one.

The right to revolution is reflected in the early American conviction that the people have a right to keep and bear arms and to govern themselves in all local matters through local governments close to the people. James Madison wrote in The Federalist 46, “Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of.” The right to revolution does not mean that it is right or good to overthrow a government that is misbehaving in some ways but which is doing a tolerably decent job in most. The Declaration says: “Prudence indeed will dictate that governments long established should not be changed for light and transient causes.’’ ‘‘Prudence” is practical wisdom or good sense. In this context it means that people should think long and hard before they try to overthrow a government that is protecting most people’s rights most of the time. A revolution is a dangerous thing. It throws men back into the state of nature, where destructive passions will be unleashed and violence may become uncontrolled. Being a dangerous cure—a cure that may prove worse than the disease—revolutions should only be prescribed in circumstances where success and real improvement are likely.


GOD AND HONOR

A common twentieth-century criticism of the founding is that it enshrines the principle of self-interest at the heart of the regime. The Declaration speaks of rights, but critics argue that it does not seem to have much to say about duties. If rights come first, and if the first right is the right to life, it seems that our obligations to others are contingent on our rights. In other words, what seems to come first in the Declaration is selfishness—looking out for one’s own life, liberty, and happiness. John Locke, to whom the Founders looked as the ablest spokesman of the first principles of government, is sometimes said to teach a “selfish system of morals,” in which one has no genuine moral obligations to others. This is arguably untrue of Locke, and it is certainly untrue of the Founders, who emphatically placed honor and duty ahead of narrow self-interest. The Declaration says that when a people is subjected to a long train of abuses aiming at absolute despotism, “it is their right, it is their duty,” to change the government. As a sign that this duty is higher than one’s own personal survival or selfish interest, the end of the Declaration affirms, “We pledge to each other our lives, our fortunes, and our sacred honor.” The Founders’ sense of honor taught them that they must be ready to sacrifice their lives and property for the sake of their duty, establishing and preserving a free government.

Honor and duty are superior to rights and self-interest. The Founders’ clearest statement of this conviction occurs in the “Declaration of the Causes and Necessity of Their Taking up Arms,” co-authored by Jefferson and John Dickinson, and approved by the Continental Congress in 1775:

“We have counted the cost of this contest, and find nothing so dreadful as voluntary slavery. Honor, justice, and humanity, forbid us tamely to surrender that freedom which we have received from our gallant ancestors. . . . We cannot endure the infamy and guilt of resigning succeeding generations to that wretchedness which inevitably awaits them, if we basely entail hereditary bondage upon them. . . . [We are] with one mind resolved to die freemen rather than to live slaves.” No “selfish system of morals” can account for the Founders’ conviction that slavery and dishonor are worse even than death.

Another common misunderstanding of the Declaration is that it is hostile to religion in general, and Christianity in particular. Nothing could be further from the truth. In fact, instead of being indifferent to religion, the Declaration contains its own theological teaching. That is because the ultimate source of our rights and duties is God. There are four references to God in the Declaration:

• The “laws of nature and of nature’s God” entitle the United States to independence.

• Men are “endowed by their Creator with certain unalienable rights.”

• The Continental Congress appeals “to the Supreme Judge of the world for the rectitude of our intentions.”

• The signers, “with a firm reliance on the protection of divine Providence,” pledge to each other their lives, fortunes, and sacred honor.

The Founders believed in the separation of church and state in the sense that no religious sect was to be the official religion of the country. But they were far from condemning government support of particular religious doctrines. In fact, the principles of the nation depended from the very beginning on a particular “religious doctrine,” namely, the Declaration’s own theology of God as author of the laws of nature and source of the rights of mankind.


SUMMARY

The political theory of the American founding—the natural rights theory—is grounded in universal principles derived from human nature, and requires of government two things. First, that it operate by the consent of the people, and second, that it secure the equal rights of individuals. This was a radical and unprecedented departure from European practice during the centuries leading up to the American Revolution. Those governments were based on religion or class, and they assigned rights unequally, in the belief that human beings are not created equal.



PART II

IMPLEMENTING THE PRINCIPLES OF THE AMERICAN FOUNDING:

THE UNITED STATES CONSTITUTION

In theory, one might expect protection of rights, and consent, to go together. In practice, they can conflict. A well-ordered government must reconcile them. As we will see, this is not an easy thing. Human nature includes not only reason but also selfish passions and interests. People often follow the latter, and consent to the violation of the rights of others.


WHY A NEW CONSTITUTION IN 1787?

The situation in America in 1787, under the Articles of Confederation established after the Revolution, was this: every state governed itself through elected representatives, and a national Congress was elected by the people’s representatives in the state legislatures. The Declaration’s requirement of democracy was being met, but government was not protecting equal rights.

Rights were insecure for two reasons. First, in the area of foreign policy, the Confederation was ineffectual. For instance, Spain had closed the Mississippi River to U.S. shipping and refused to acknowledge U.S. boundaries. American ships had become vulnerable to foreign depredations.

The protection of life and property—the first duty of government—was impossible without a stronger national government.

The second area of government failure was in domestic policy. The state governments were violating individual rights to property, and even to life and liberty. For example, state legislatures routinely overturned court decisions in order to give special treatment to individuals, passing ad hoc exceptions to enforcement of contracts. Some legislatures also sided with debtors against lenders by printing worthless currency and forcing businesses to accept it as legal tender. In the language of Madison in The Federalist 10, these legislatures had fallen under the sway of factions—groups of citizens, whether majority or minority, acting on passions or interests adverse to the rights of others and the common good. To repeat: America had government by consent, but not government that secured equal rights. This was the challenge faced by the Framers of the Constitution. They had to bring the practice of American government into line with the principles of the Revolution. They succeeded in this extremely difficult task, and their success can be attributed to six key elements.
CONSTITUTIONALISM

There was an early tradition in the American colonies of written fundamental laws. This practice implied that there should be a law higher than the ordinary laws or statutes passed by the legislature. The first state constitutions were not like this. They were written by state legislatures, and they were generally changeable by a simple act of those legislatures. If a legislature wanted to do something the state constitution did not permit, it could simply change that constitution.

This was bad for many reasons. In short, however, it led to unlimited government. The theory of the American Revolution says that governments exist to secure rights. People delegate that job to government, and give it only certain powers. A constitution is a device to keep it from going beyond those powers. A constitution keeps the government within bounds. The original state constitutions could not do this, because they could be changed by the state legislature at will. Objections to this practice began to arise as early as 1776, for instance in Massachusetts, where a special convention was chosen by the people to write a state constitution. This idea of holding extraordinary conventions made it clear that government was subordinated to a higher or supreme law. This idea was adopted by those who called the Constitutional Convention, which met in Philadelphia in 1787.

The idea of a written constitution embodies the two great themes of the Declaration: consent and protection of equal natural rights. The people’s own law—the Constitution—governs the government even after the government is established. And the fact that it is a written document, changeable only in rare circumstances, reflects the conviction that government’s duties are guided and limited by a permanent standard of natural right.


RULE OF LAW

In the understanding of the Founders, one important means to insure that government by consent truly protects the rights of all citizens is to require that government govern by the rule of law. As understood by the Founders, laws are rules that are general; they apply equally to all persons similarly situated. And this follows from the idea of equal natural rights: If the source of rights is nature, and if every man has an equal share in human nature, then every man possesses the same natural rights; and if the purpose of government is to protect rights, then it must offer equal protection to each and every citizen, which is accomplished through the rule of general laws that apply to and protect each person equally. The rule of law also means that no one is above the law, not even those who make the law. If all men possess equal rights, then those who live under the laws must be allowed to participate in making those laws, and those who make the laws must live under the laws they make. There are many things a government must do, however, that are not amenable to general rules. For example, the details of waging a war, or the choice of which crimes to prosecute first, are by their nature discretionary. In our system, they fall under the power of the executive. But in the ordinary direction that government gives to citizens and the limits that it sets on them, no less than the protection government offers them, it must do so by general rules that do not favor or disfavor particular individuals or classes.


SEPARATION OF POWERS

Following earlier modern political theorists, the Framers understood government by law to include three distinct powers: making laws, enforcing laws, and judging particular violations of law. Placing all three powers in the same hands is, according to Madison in The Federalist 47, the very definition of tyranny, because there would be no external or internal checks on the power of government. Men are not perfect, whether they are in the government or out of it. No single authority can be trusted with all the powers of government to itself. Much as having a written Constitution would check or limit the power of the government from without, having distinct legislative, executive, and judicial powers of government would check or limit it from within. In violation of this principle, the Articles of Confederation concentrated the powers of the federal government into the same hands, the Congress. Most of the state constitutions in effect did the same. They set up governments that enabled one branch (the legislative) to force the other branches (executive and judicial) to submit to its will. In his critique of the Virginia Constitution of 1776, Jefferson wrote, “All the powers of government, legislative, executive, and judiciary, result to the legislative body. The concentrating these in the same hands is precisely the definition of despotic government. It will be no alleviation that these powers will be exercised by a plurality of hands, and not by a single one. 173 despots would surely be as oppressive as one. . . . An elective despotism was not the government we fought for.” In addition to preventing tyranny, separation of powers is a positive means to help government do its job. The distinct powers of government entail different duties, requiring different virtues for good performance. The Framers of the Constitution gave each branch—legislative, executive, and judicial—a different mode of election, different sizes, different tasks, and different terms of office. In this way, the Framers aimed to give them the virtues and interests needed to secure rights democratically.

The virtue of the legislative branch is deliberation. Its members must think and reason together about what must be done. They must devise general policies or laws that will meet the needs of the country. Since laws require at least a majority of both houses of Congress for approval, their passage necessarily involves a consensus of a substantial number of people representing the diverse interests of far-flung constituencies. Hamilton explains why it is right for Congress to be a large body: “In the legislature, promptitude of decision is oftener an evil than a benefit. The differences of opinion, and the jarring of parties in that department of the government, though they may sometimes obstruct salutary plans, yet often promote deliberation and circumspection, and serve to check excesses in the majority.” The legislature was divided into two separate “Houses”: the upper house, or Senate, and the lower house, or House of Representatives. This division was intended to force or incline the legislature to reconcile differences among interests by reaching a consensus based on reason, and to prevent the legislative body from becoming so powerful that it would usurp powers rightfully belonging to the other branches of government. The Senate has fewer members with longer (six-year) terms. Each state, regardless of size, gets two members. Originally senators were appointed by state legislatures, not by popular vote, which helped to guarantee that the authority of state governments would not he invaded by the national government (see below, Federalism and Local Self- Government).
The House of Representatives has more members with shorter (two year) terms, and its members are elected by popular vote. The number of representatives to the House that each state can send is proportionate to their population, larger states having more, and smaller states having fewer members.

The chief virtue required of the executive is energy. This active virtue complements the slower deliberative virtue of the legislature. The executive—enforcer and administrator of the laws, prosecutor of crimes, and commander of the armed forces—needs to be able to act decisively, forcefully, quickly, and in some cases secretly. These qualities, wrote Hamilton, “will generally characterize the proceedings of one man in a much more eminent degree than the proceedings of any greater number.” So the executive power was lodged in a single individual with a term of four years. Such a unitary executive would naturally have the responsibility for everything that his subordinates in the administrative bureaucracy might do; having that responsibility, he must also have the power to supervise and direct those subordinates.

The virtue of the judiciary is judgment. Its job, as John Marshall once wrote, is “solely, to decide on the rights of individuals” in cases at law. A case is typically a dispute between two parties, one of whom claims to have suffered an injury for which the law provides restitution. For example, one party (the executive branch of the government, speaking for the people in the name of a law passed by Congress) alleges that the other (the accused) has counterfeited money. Counterfeiting is an injury to the public peace because it is in effect theft from those who accept the worthless currency. The prosecutor asks the court to find him guilty and assess the legal punishment. The Constitution made the courts independent of elections to ensure dispassionate and impartial judgment, so that judges would not be pressured by elected officials to reach their decisions in accord with popular whim or anger. The independent courts help to assure that when an individual is brought before the law, he is given a fair and impartial trial, free of political influence or pressure from powerful officials in the elected branches.

The “good behavior” term of office for federal judges—in effect, a lifetime appointment, barring any egregious violations of the law or other impeachable offenses—has often been misunderstood as an antidemocratic part of the Constitution. For the Founders, however, judges could be trusted to remain in office indefinitely because of their clearly subordinate role. Their job was to judge cases according to the law, meaning, under the direction of rules approved by the people’s representatives. The Founders would have rejected a view often promoted in today’s law schools, which claims that judges, who never have to stand for reelection, in effect have a lawmaking role coequal with the legislature.


CHECKS AND BALANCES

To separate the powers of government on paper is one thing; to keep them separate in practice is another. Americans had learned this from their first state constitutions, just after the Revolution. They found that one branch, the legislature, tended to take over the powers the others. Why? At the time, the British king, and British royal governors, along with their administrative and judicial appointments, were the principal objects of Americans’ fear and suspicion. So the state constitutions generally established weak executives and judiciaries and powerful legislatures. As a result, the legislative body in the state governments became not just predominant, as it must be in a free government, but all powerful—“ extending the sphere of its activity and drawing all power into its impetuous vortex,” in Madison’s memorable phrase in The Federalist 48. As noted above, violations of rights abounded.

To strengthen separation of powers and prevent legislative despotism, the Framers incorporated what Hamilton in The Federalist 9 called “legislative balances and checks” in the federal Constitution.

One check was to forbid the elected legislature from tampering with the fundamental law, the Constitution, as we saw above. Another was to divide the Congress into two houses, with different constituencies, term lengths, sizes, and functions. This made it more difficult for the two parts of the legislature to act unjustly in concert. A third check was to give the President a limited veto power over congressional legislation (Congress may override a president’s veto only if two-thirds of the members of each house approve), along with the responsibility to recommend laws to the legislature. These amounted to an executive share in legislation.

A fourth was to create an independent judiciary capable of reviewing ordinary legislation in light of the written Constitution. This feature, later called “judicial review,” means that when a legislature makes a law that violates the Constitution, the courts must refuse to enforce that law upon individuals who come before them. Earlier theoretical treatments of separation of powers had looked to the British government as a model. But that government was popular or republican in only one of its three parts, the House of Commons. A hereditary aristocracy filled the House of Lords, and the executive was a hereditary monarch. This model ran counter to the natural rights theory, and so was rejected by the Framers. Rather, the Americans saw for the first time that separation of powers is most compatible with a republican form of government.

In America, the separate branches would keep each other in line constitutionally, but each would be based on the people at large, not on separate classes in society.


REPRESENTATION

The Founders agreed that because the people are the ultimate source of all political power, government must be democratic, or “republican,” in nature. They were confronted, however, with two problems. First, in a country as large as the United States, it is not feasible to have direct participation in governmental affairs. The people are too numerous and too dispersed to participate in the day-to-day affairs of government. Second, a more important problem was to combine self-government with good government. The Founders understood that the real political and constitutional challenge was to design a system of government that would prevent democracy or self-government from turning into mob rule, or tyranny of the majority, which was exactly what was happening in many of the states under the Articles of Confederation. Republican government, at its best, should filter the reason of the public from the irrational passions of the public, which are usually adverse to the rights of others.

The answer to both these problems was representation. Representation allows the people to have a voice in government by sending elected representatives to do their bidding, while avoiding the need of each and every citizen to vote on every issue considered by government. Perhaps more importantly, though, is that a system of representation fosters lawmaking by those in the community best qualified for such things. In the words of The Federalist 10, representation helps “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.”

FEDERALISM AND LOCAL SELF-GOVERNMENT

Another constitutional device to prevent tyranny by dividing power is federalism. The authority of the national government would be exercised only on matters of truly national scope, such as foreign policy and national security, general regulation of commerce, and other “great and national objects.” The states, according to Madison in The Federalist 45, would have general authority over “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.” As with separated powers, federalism has a second purpose apart from preventing tyranny. It makes government work better because, as Madison explains in The Federalist 10, “local and particular interests” differ from place to place, and so are not conducive to regulation by general rules or by a remote body like Congress. They are handled better by state and local governments, where the representatives are “acquainted with all their local circumstances and lesser interests.” That allows “the great and aggregate interests,” which are conducive to laws operating from the center, to be referred to the national government. From the early colonial days on, the Americans had strong town governments, especially in New England. These towns, wrote John Adams, “are invested with certain powers and privileges, as, for example, to repair the great roads or highways, to support the poor, to choose [their local officials and] their representatives in the legislature. The consequences of these institutions have been that the inhabitants [have] acquired from their infancy the habit of discussing, of deliberating, and of judging of public affairs.” Alexis de Tocqueville made similar observations on the benefits of the American tradition of local self-government in the 1830s. “Local institutions are to liberty what primary schools are to science; they put it within the people’s reach; they teach people to appreciate its peaceful enjoyment and accustom them to make use of it. Without local institutions a nation may give itself a free government, but it has not got the spirit of liberty.” Local self-government fosters the kind of civic spiritedness and ove of liberty that keeps individuals from becoming preoccupied with or enslaved by their private passions and interests.


SUMMARY

In The Federalist 9, Alexander Hamilton said that the “science of politics” had “received much improvement” in modern times. That is what made possible, he said, a “free government” (government by consent) that is compatible with the “principles of civil liberty” (equal rights). Hamilton mentions separation of powers, legislative balances and checks, courts with judges holding their offices during good behavior, representation of the people through elected legislatures, and a large republic spread over an extensive territory. These devices enabled the Constitution to reconcile the Declaration’s requirements of consent and the protection of equal rights.

Consent was insured by making each branch of government popular or representative. In each case, the members are appointed directly by the people (the House of Representatives) or indirectly by someone elected by the people (the Senate, president, and subordinate executive officials) for limited terms of office. The judiciary, appointed by the president, was made compatible with popular government by confining its role to applying laws approved by the popular branches. The Constitution promoted protection of rights by leaving scope for state and local self-government; by placing the three powers of the national government in separate hands; by checking the legislative branch; and by giving the members of each branch personal motives to support constitutionalism. Combined, these devices subordinate the government to the higher law of the Constitution and ultimately, through it, to the principles of the Revolution as articulated in the Declaration of

Independence.





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