Constitutional Government

Constitutional government in America begins and ends with the American people. We are a constitutional people, not because we were created by the Constitution, but because we are decisively shaped by the activity of constitutionalism. Americans are justly proud of their achievements and those of their ancestors in fabricating and sustaining constitutional government. In spite or because of those achievements, relatively few Americans are able to articulate the details of their governmental arrangements, although most have opinions about them. As Michael Kammen noted in A Machine That Would Go 1987, 23–29 ). Thus we are a constitutional people—a people whose life is centrally formed by a document—for whom constitutional government is a perpetual exercise in venturing into an unknown where our latest conclusions are tested against new challenges.

Constitutional government in the United States consequently embraces a series of contrasts and paradoxes. We are constituted by a document but also by authoritative institutional interpretations of that document. We know that the document is worthy of reverence, but are by and large ignorant of what it actually provides. We are confident that the meaning of the document is fixed, but expect government to respond and if necessary adapt as our needs and desires change. The open-ended nature of some parts of the constitution—due process, for example— invites us to fill in the spaces with new content. But this creates disagreement, even passionate dissent. Responding to these disagreements has been the life of our constitutional government.

That the interactions between the document, authoritative interpretations of the document, and public opinion have been neither consistent nor predictable is hardly surprising. Over time, doctrines have changed their meaning and orientation. The nature of the relationship between the federal government and the states has especially changed. Prior to the Civil War, state citizenship was primary and national citizenship secondary, but the Fourteenth Amendment reversed this. Until the New Deal, the Constitution was understood to bar the federal government from legislating on working conditions—hours of employment, minimum wages, child labor—in the states. But in 1937 the Supreme Court reversed its position, under considerable pressure from public opinion, Congress, and the president. This is now an area with substantial federal responsibility. In each case, an interpretive consensus has been challenged and superseded, only to be questioned in its turn. Constitutional government takes place within this ongoing constitutional conversation.

HISTORY AND BACKGROUND

This conversation is as much our inheritance from Great Britain as are the specific institutions of our government. The theory of a rule of law is as old as Aristotle's Politics ( fourth century BCE, 1286a, 1287a ). English concepts of law that bound even the king had deep roots; Magna Carta was its manifestation, not its cause. By the seventeenth century, older traditions of limited English government collided with Tudor and Stuart assertions of sweeping royal power. These controversies over the role of Parliament versus the king, especially during the English Civil War, formed a critical part of the colonists' governmental heritage and shaped our constitutional vocabulary. The idea that basic rights, their origins shrouded in history, could be protected by a series of fundamental documents and made active by vigilant public opinion, was a fundamental tenet in the American colonies ( Lutz 1988, 23–34 ).

To this historical consciousness Americans added the moral authority of religious belief. There is deep consistency between America as a religious nation and Americans as a constitutional people, for if the Constitution is our secular bible, the Bible is our sacred constitution. Both speak of truths that are not merely subject to passing or decay, but truths that are the ground of everything and surpass the documents in which they are encased. Both provide the foundation on which all else rests. What is more, they command our obedience to a will that is not our own. There is an order larger than ourselves or our present desires, an order that persists without our will or permission. We must fit into this order, not vice versa. These parallels between the Bible and the Constitution give our constitutional government a curious sort of fundamentalism, regardless of our political orientation, that further underscores America's differences from other constitutionalisms ( Gomes 1998, 53–56; Levinson 2011, 30–37; Grey 1985, 1–25 ).

INTERPRETATION AND CONSENT

As in religion, so in politics all acknowledge and respect the source of belief, but interpretations differ fundamentally. The issue is often a question of whose interpretation should be taken as authoritative. The Glorious Revolution gave us John Locke ( 1632–1704 ) to provide a political theory consistent with both the English constitutional inheritance and Reformation ideas of a community of believing individuals. Locke closed the loop between the origin of rights and ongoing popular consent by adapting Thomas Hobbes's ( 1588–1679 ) thought experiment of a social contract, in which the members of a society must agree with each other in order to create legitimate political authority. But while, in the United Kingdom, Locke's theory led to parliamentary sovereignty, the colonies continued to view the constitution through the lens of jurist Edward Coke ( 1552–1634 ), who had argued that the British Constitution provided limits on the authority of Parliament that could be enforced by courts ( Corwin 1955, 57, 72–89 ). Fundamental principles could not be contravened even by the sovereignty of Parliament. But in the Americas it remained an open question who was authorized to say when those principles were implicated—should it be an institution of government, or should it be the people?

It took a revolution, two federal constitutions, a score of state constitutions, and one court decision to articulate how this worked. Paradoxically, the answer was both government and the people. In Marbury v. Madison, 5 U.S. (1 Cranch) 137 ( 1803 ), Chief Justice John Marshall ( 1755–1835 ) explained that the Constitution was the work of the sovereign power—the people ( 5 U.S. at 176–77 ). All governmental institutions derived their authority from that source. Any assertion of authority beyond it was ultra vires (without authority), regardless of whether it reflected the will of a majority of voters. The Supreme Court's role in the constitutional scheme was to speak on behalf of this sovereign power, guarding the intentions of the Constitution's creators and disregarding the interfering or pretended authority of others, subject, ultimately, to the check of constitutional amendment ( Kahn 1992, 63 ). Chief among those “others,” of course, was Congress. The actual sovereign, the people, remained, but in the background. Popular constitution making, although essential to the theory of American governments, was much too dangerous to implement unless the damage was both great and imminent. In the Marbury case, Marshall institutionalized a preference for the higher-law constitutionalism of Edward Coke over the parliamentary sovereignty of William Blackstone ( 1723–1780 ).

AMERICAN AND OTHER CONSTITUTIONALISMS

In the hands of activist judges, judicial review has grown into a practice far greater than anything envisioned by Coke, but it shares one feature with other American constitutional principles. It is partly original and indigenous, and partly adapted and imported to the United States. The principles of the constitutional scheme—federalism, separation of powers, popular sovereignty, enumerated powers, reserved rights, and others—were known before the Constitution was written. Almost all of them had been tried before, many in the American colonies. We combined some. As James Madison ( 1751–1836 ) notes in Federalist Nos. 37 and 39 ( 1788 ), some of the Framers' syntheses were so new there was no name for them. The Founders did not invent constitutional government. But they made it compatible with popular government, understood as having both “sovereign” and “constituent” aspects, and gave our system the flexibility and authority to enable it to repair, reform, and even save it from itself.

The Constitution's Framers repeatedly spoke of it as an “experiment,” for the particular blending of governmental principles had never been tried before. There had been theorists of mixing ideas of government since Aristotle ( Politics, 1281a–1284b ), but it required some imagination in 1787 to see how the Framers' construction would work. Some complained that there was not enough popular sovereignty, while others expressed concern that there was no institution that could provide permanence and gravitas. As The Federalist points out, our constitutional architects were for the first time trying to design institutions for an “unmixed and extensive” republic based on the consent of the people (No. 14). It required them to do things that had not been tried or had never been put together before, creating a blend of American experience and European theory.




The front page of the Washington Postannouncing President Richard Nixon's resignation, August 9, 1974.





The front page of the Washington Post announcing President Richard Nixon's resignation, August 9, 1974.
© THE WASHINGTON POST/GETTY IMAGES

AMERICAN CONSTITUTIONAL PRACTICE

The Civil War, the great failure of American constitutional government, was also its great success. Slavery and freedom led to two incompatible constitutional constructions, each specifically grounded in the Constitution of 1787. One side held to the Constitution's literal words, while the other pointed to its silences and its general spirit. Compromise could no longer solve the constitutional problem, and the compromising voices—Henry Clay ( 1777–1852 ), John C. Calhoun ( 1782–1850 ), and Daniel Webster ( 1782–1852 )—departed after 1850. The forces arrayed against each other had spent many years refining their principles to purity, and were more concerned not to appear weak to their own supporters than to prevail on the issues. Could a state, or states, break their allegiance to the others and to the Union? The principle of secession had been asserted as early as 1798. The election of Abraham Lincoln ( 1809–1865 ) in 1860 encouraged states to act on that principle, but Lincoln's governance during the Civil War assured that the Constitution would emerge stronger than before.

This is not to say that the Constitution did not change. The newly powerful federal government asserted broad Hamiltonian claims to act in agriculture, education, railroad construction, and many other areas. It established a fiat paper currency and taxed incomes. Many of these measures would have been regarded as illegitimate before the war and remained controversial after the war. Following the war, three constitutional amendments (the Thirteenth, Fourteenth, and Fifteenth) were designed to free the slaves and protect their civil and voting rights. These amendments were also intended to cement the victory of the northern states' constitutional principles ( Epps 2006a, 895–911 ). The Fourteenth Amendment, in particular, reverses the old priority of state citizenship over federal and makes the federal government the guarantor of citizens' rights.

PRINCIPLES AND PRACTICE AFTER THE CIVIL WAR

It has fallen to the US Supreme Court to apply the post– Civil War amendments' principles to government, although application has been uneven, at best ( Epps 2006b, 262–70 ). Almost as soon as the Fourteenth Amendment was adopted, the Court confined it narrowly in the Slaughter-House Cases, 83 U.S. 36 ( 1873 ). The Civil Rights Cases, 109 U.S. 3 ( 1883 ), further constrained Congress's enforcement power. In the late nineteenth century, the Fourteenth Amendment acquired a new substantive meaning, to protect the economic liberties of citizens. Since 1937, by contrast, the emphasis has been to use the Fourteenth Amendment to protect rights outlined in the Bill of Rights against public and private intrusion, while guaranteeing equal protection of the law against discrimination. The Court is at its best when articulating isolated principles found in explicit clauses of the Constitution—protection against discrimination on the basis of race, for example—but the Court has shown itself to be ill-equipped to articulate the principled or paradoxical elements in the compromises of the Constitution. As a body that lacks legislative competence, the Court is at its least advantaged when attempting to craft new compromises—as we have seen in the past halfcentury with the jurisprudence on “privacy.” What is more, the lack of democratic legitimacy in the judicial process makes it vulnerable to accusations of illegitimacy should it assert new settlements.

The Court's decisions on separation of powers and federalism seem to bear this out. In I.N.S. v. Chadha, 462 U.S. 919 ( 1983 ), the Court held that one-house “legislative vetoes” were unconstitutional. Later, Bowsher v. Synar, 478 U.S. 714 ( 1986 ), declared that only executive-branch officials could carry out laws, while Clinton v. New York, 524 U.S. 417 ( 1998 ), struck down a line-item veto provision agreed to by the president and Congress. In each case, we observe the Court majority asserting a narrow, and some would say doctrinaire, reading of the relevant clause. Each of these cases nullified carefully wrought and useful congressional compromises to smooth the work of government and reassert Congress's ability to control executive institutions. In the same vein, in New York v. United States, 505 U.S. 144 ( 1992 ), the Court struck down deals for regional interstate compacts on nuclear waste disposal on the ground that the states' cooperation was coerced and that the operation of the program would deflect responsibility. In these cases, the Court chose to isolate a constitutional principle—separation of powers or states' rights—and overturned Congress's compromise legislation. These are good illustrations of the limitations on the Court as an evaluator of principles in combined or compromised form. It defends the principles in their purity, but while this seems to set doctrines in clear relief, in practice it can frustrate the work of governments, for example by nullifying agreements to provide for the disposal of nuclear waste. In the case of Chadha, it led simply to the Court's judgment being ignored.

THE CONSTITUTION AND THE PARTY SYSTEM

As with other governmental practices, the United States was not the first nation to invent a party system. The first American party, the Democratic-Republican Party of Thomas Jefferson ( 1743–1826 ), stood for an altogether novel approach, organizing the people and giving them a voice in the process. This solved one of the weaknesses of popular government under the Constitution. Political parties provided an informal mechanism for discussion of and agreement on policies before an election. The two-party system gave people clearer choices, allowing them to anticipate and control the direction of future policy.

The Federalist, by contrast, and later the Federalist Party, envisioned the people choosing their “natural” leaders from among the established elite. The people would naturally choose good men, who in turn would accommodate their disparate interests and political opinions in Congress (see Federalist No. 10). Jefferson, and later Madison, saw that this arrangement would not work for the Constitution's representative institutions. Their party was meant to take the Constitution out of the hands of an interpretive elite and put it firmly in the hands of citizens. The Federalist Party, by contrast, was oriented to the elite. It is no surprise that the Federalists' enduring successes, especially judicial review, were checks on democracy's dangers. Ultimately, the system accommodates both: thanks to the Jeffersonians, Congress provides the energy of representative government, but thanks to the Federalists, it is kept in check by the authoritative constitutional interpretations of courts isolated from the daily rounds of politics.

CONSTITUTIONAL FUNDAMENTALISM

The great crises of American history—acquiring Louisiana, slavery, the Civil War, World War I, the Great Depression—each produced charges and countercharges over the interpretation of the Constitution. At the same time, the Constitution influenced the strategy of response. In each case, the president was accused of violating or grossly distorting the meaning of the Constitution. Jefferson's uncertainty about his constitutional power to acquire Louisiana led him to think seriously about seeking a constitutional amendment. Ultimately, he decided that lack of time would preclude that strategy, and for better or worse that decision is the one that has shaped our practice of constitutional government.

Every new constitutional crisis has adopted and adapted the legacy of previous settlements. Lincoln was able to make use of the strong presidency prepared by Jefferson and Andrew Jackson ( 1767–1845 ), as well as emergency powers granted or conceded by Congress, to amass unprecedented power during the Civil War. Half a century later, Woodrow Wilson ( 1856–1924 ) could draw on Lincoln's legacy to extend that power further. Most recently, Presidents George W. Bush ( 1946– ) and Barack Obama have used the powerful national security state and the environment of worldwide terrorism to extend presidential authority further still, at the expense of Congress and, say some, the people. These recent moves, like those of their predecessors, often were welcomed at their inception, yet later created profound misgivings about their implications for our constitutional structure.

In a pattern that repeats itself, the president or Congress, or both, seek power to do necessary or good things, only to confront the limits of constitutional design. Constitutional government works when institutions observe the limits set forth in the document, or are made to do so. Yet government always wants to go further, to acquire more power or more information. The question, initially whether the government could do something, became a question of how much it could do ( Kahn 1992, 17–19 ). Conservative forces generally wish to confine exceptions narrowly and interpret limitations broadly; this was the Jeffersonian understanding of constitutional construction. Liberals tend to follow Hamilton in interpreting exceptions broadly and limitations narrowly. Both of these instincts remain vital in our constitutional government.

Constitutional government in the United States has been a process rather than a thing or mechanism that can be described or defined. Americans think constitutionally—to us there are fundamental principles that shape and limit not just government, but institutions in general. Without a shared ethnicity, culture, or language to describe America and Americans, we have been defined by our adherence to a set of fundamental propositions embedded in our great founding documents. For Americans, constitutional government means above all that continuing the conversation is more important than the victory of one or another position. In that sense, it may be said that constitutional government is not what Americans have, but rather what Americans do.

SEE ALSO Blackstone, William ; Checks and Balances ; Coke, Edward ; Compact and Covenant ; Consent ; Constitution ; Constitutionalism ; Democracy ; Enumerated Powers ; Equality ; Federalism, Theory of ; Governance ; Government ; Hamilton, Alexander ; Jefferson, Thomas ; Judicial Review ; Liberty ; Limited Government ; Lincoln, Abraham ; Locke, John ; Marshall, John ; Popular Sovereignty ; Representation: Idea of ; Representation: Representatives ; Representation: The Represented ; Republic ; Republicanism ; Rule of Law ; Separation of Powers ; Wilson, Woodrow .

BIBLIOGRAPHY

Corwin, Edward S. The ‘'Higher Law” Background of American Constitutional Law. Ithaca, NY: Cornell University Press, 1955.

Epps, Garrett. “Second Founding: The Story of the Fourteenth Amendment.” Oregon Law Review 85 (2006a): 895–911.

Epps, Garrett. Democracy Reborn: The Fourteenth Amendment and the Fight for Equal Rights in Post–Civil War America. New York: Holt, 2006b.

Gomes, Peter J. The Good Book: Reading the Bible with Mind and Heart. New York: Morrow, 1996.

Grey, Thomas C. “The Constitution as Scripture.” Stanford Law Review 37, no. 1 (1984): 1–25.

Kahn, Paul W. Legitimacy and History: Self-Government in American Constitutional Theory. New Haven, CT: Yale University Press, 1992.

Kammen, Michael. A Machine That Would Go of Itself: The Constitution in American Culture. New York: Vintage, 1987.

Levinson, Sanford. Constitutional Faith. Princeton, NJ: Princeton University Press, 1988, 2011.

Lutz, Donald S. The Origins of American Constitutionalism. Baton Rouge: Louisiana State University Press, 1988.

Madison, James. Federalist No. 10: “The Union as a Safeguard Against Domestic Faction and Insurrection.” Federalist No. 14: “Objections to the Proposed Constitution from Extent of Territory Answered.” No. 37: “Concerning the Difficulties of the Convention in Devising a Proper Form of Government.” No. 39: “The Conformity of the Plan to Republican Principles.” 1787–1788. http://thomas.loc.gov/home/histdox/fedpapers.html .

McIlwain, Charles Howard. Constitutionalism: Ancient and Modern. Rev. ed. Ithaca, NY: Cornell University Press, 1947.

Tushnet, Mark. “Constitutional Workarounds.” Texas Law Review 87, no. 7 (2009): 1499–1516.

J. Jackson Barlow
Juniata College