What was wrong with the Articles of Confederation? Why did we need the Constitution?
What is the "rule of law"? Why is it important?
The Articles of Confederation (1777–1789), the first form of government adopted by the United States after the Declaration of Independence, was an ineffective form of government that nearly prevented the Americans from winning the Revolutionary War.
The “great and radical vice” of the Articles of Confederation, according to The Federalist Papers, was the inability of the federal government to make laws that applied directly to citizens. Under the Articles of Confederation, America was a loose confederation of independent sovereign states, rather than a true union. This meant that the laws of the national government were mere recommendations that states (and citizens) were free to ignore.
Under the Articles of Confederation, Congress was unable to raise revenue or establish an army for defense, each state had its own currency, there was no effective national administration, states erected barriers to commerce, and it was difficult for the nation to conduct a consistent foreign policy.
Any kind of government which cannot make binding laws is bound to fail, and the Articles of Confederation was no exception. Thus the Constitution with its new understanding of federalism was needed to create “a more perfect Union.”
What is the "separation of powers"? Why is it important?
The rule of law is the idea, as John Adams elegantly wrote, that we live in a “government of laws, not of men.” Nowhere expressed, yet evident throughout the Constitution, this bedrock concept is the first principle on which the American legal and political system was built. It finds its highest expression in the Constitution’s supremacy clause: “This Constitution, and the Laws of the United States … shall be the supreme Law of the Land.” In America, the law stands above all.
The rule of law is composed of four key components. First, the laws equally bind those who govern—including legislators, judges, and executive authorities—and those who are governed. No person can ignore the law, and no person is unprotected by the law.
Second, when laws are violated, the rule of law requires a formal, unbiased, and routine process of law enforcement and adjudication.
Third, the principle requires certain standards to which lawmaking must conform. For example, no law can declare an act to be a crime after it occurred. Such a law would subject citizens to the whims of government.
Lastly, the rule of law is based on, and emphasizes the centrality of, lawmaking. This is why, although we have three coequal branches of government, the legislature is first among equals.
What is federalism? Why is it important?
The principle of separation of powers states that the executive, legislative, and judiciary powers of government should be divided into different branches and not concentrated in one. These departments should be separate and distinct because of the corrupting nature of power. If the body that made the laws also could enforce them and adjudicate disputes, it would likely do so in a preferential manner, undermining the rule of law and basic fairness. Power, in other words, must be checked, or it will be abused. In The Federalist Papers, James Madison calls the combination of legislative, executive, and judicial powers “the very definition of tyranny.”
The Framers did not think that merely separating powers on paper would do the trick. The Constitution gives each branch of government some powers over the others to permit it to resist encroachments. For instance, the veto power gives the President a check on Congress. The Constitution therefore not only divides power but also sets it against itself, thereby creating a dynamism within the workings of government that uses the interests and incentives of those in government to enforce constitutional limits.
The separation of powers doctrine also intends to improve the energy and efficiency of government by allowing each branch to specialize, in effect, in order to fulfill its unique function.
For more on the separation of powers, see Charles Kesler’s First Principles essay “What Separation of Powers Means for Constitutional Government.”
What is the proper way to interpret the Constitution?
Federalism is a system of government in which powers are divided between the state and federal governments. The Tenth Amendment—which declares that powers not granted to the national government are reserved “to the states or to the people”—affirms that our Constitution creates a federal system of government.
The principle of federalism has three primary benefits. First, federalism protects local flexibility and autonomy. It ensures that power is exercised at the closest and most accountable level possible, allowing different states to take different approaches to policy problems. It will always be impossible for a centralized authority to make a single policy that will work well in all areas of a large country.
Second, federalism provides a “vertical” separation of powers along with the “horizontal” division of powers between legislative, executive, and judicial departments. Thus federalism is crucial to the checking of power and the preservation of liberty.
Finally, federalism creates competition between different states and therefore disciplines them. If different states have the ability to make different laws, and citizens are free to move from one to another, states have incentives to make better laws. Thus, the competition federalism creates expands citizens’ freedom and encourages states to make good laws.
For more on federalism, see Charles Cooper’s Constitutional Guidance for Lawmakers essay “ The Constitution in One Sentence: Understanding the Tenth Amendment.”
Who has the ultimate say in determining what the Constitution means?
The proper way to interpret the Constitution is to discern the original meaning of the text as it was written and publicly understood at the time of ratification, a method commonly referred to as originalism. Originalism is entirely consistent with the traditional analysis of the Constitution, enables vigorous engagement with constitutional text and structure, and draws attention to constitutional purposes and principles. Originalism does not preclude judges from engaging in rigorous analysis and from drawing inferences from the structure of government and the Constitution. It is the only approach that comports with the idea of a written constitution based on unchanging principles of justice.
The two alternatives to originalism are both inadequate. Strict constructionism requires a judge to apply the Constitution as literally as possible. In essence it forsakes the spirit of the law by being too attached to the letter of the law. Advocates of a “living Constitution” ignore both the letter and spirit of the law by empowering judges to go beyond the text and import whatever principles or policies into the Constitution they favor. This fundamentally undermines the principles of the rule of law.
For more on the subject, see Keith E. Whittington’s First Principles essay “
How to Read the Constitution: Self-Government and the Jurisprudence of Originalism.
What does the term “living constitution” mean?
No one person or branch of government has the final say in determining what the Constitution means. The Supreme Court has the power to decide the cases and controversies before it; those decisions are binding on the parties involved and lower federal or state courts are bound to follow them. However, it is important to remember that the Constitution is not simply whatever the Supreme Court says it is. The decisions of the Supreme Court never replace the Constitution itself.
Just as the Supreme Court is not the final interpreter, it is not the exclusive interpreter. Everyone who holds an office in the United States—the President, members of Congress, federal judges—takes an oath to uphold the United States Constitution. As the Supreme Court must dutifully and faithfully interpret the Constitution when determining the validity of the laws in the cases before it, so too must the members of Congress when they make laws and the President when he enforces them. Each branch has a responsibility to act in accordance with the Constitution. This coordinate-branch construction of government, when executed properly, provides the proper checks and balances and ensures the faithful execution of the will of the people as embodied in our Constitution.
For more on the subject, see Edwin Meese’s WebMemo “
The Meaning of the Constitution.
What is judicial review? How is it different from "judicial supremacy" and "judicial activism"?
The notion of a ”living constitution” is the theory of constitutional interpretation put forward by Progressives and modern liberals to justify their new conception of rights and the resulting expansion of the federal government’s reach. The theory of a “living constitution” aims to transform the Constitution into a pliable document whose meaning readily changes to fit the times. While the Constitution is designed to secure individual rights and limit government, a “living constitution” uproots this system in favor of evolving rights and unlimited government.
This deeply flawed understanding of the role of government remains influential today, particularly in the judiciary. Rather than ensure that the laws passed by Congress adhere to the spirit and letter of the Constitution, some believe that the new role of the judiciary is to deconstruct the Constitution, adjust its meaning to the ideas of the time, and move American society toward what judges deem to be useful change. Under this theory, the Constitution is an empty vessel that means whatever judges say it means.
For more on the subject, see Bradley C. S. Watson’s First Principles essay “
Progressivism and the New Science of Jurisprudence.”
Is the Supreme Court obliged to follow its own precedents?
Judicial review is the power of courts to evaluate laws and the actions of government to determine whether they are constitutional. Judicial review is a fundamental component of the judicial power. Although it does not appear by name in the Constitution, it is implicit in the structure and design of a written Constitution meant to limit government. When there is a conflict between ordinary law and the Constitution, courts are obligated to take the side of the Constitution.
Judicial supremacy, on the other hand, arises from the mistaken assumption that judicial review gives the Supreme Court the final say in all constitutional matters and that only it can interpret the Constitution. In reality, no one branch of government has the final say on what the Constitution means and all three branches have a duty to uphold it.
Judicial activism goes beyond judicial supremacy as it involves judges substituting their own preferences for laws enacted by lawmakers. This is also popularly called legislating from the bench. Judicial activism is incompatible with the principle of the rule of law as it allows unelected judges to overrule the will of the people as expressed through law.
For more on the subject, see Christopher Wolfe’s First Principles essay “From Constitutional Interpretation to Judicial Activism: The Transformation of Judicial Review in America.”
What does the "general welfare clause" in the Constitution mean?
No. The Supreme Court’s foremost duty is to uphold the commands of the Constitution. If the Court determines that one of its prior decisions was incorrect, it must overturn this precedent.
Precedents should not, however, be dismissed lightly. As Alexander Hamilton explains in Federalist 78, it is “the proper and peculiar province” of the Court to address some of the weightiest constitutional questions. The answers it gives are very important to the stability of our law, a feature necessary for good government. Consequently, precedent holds some weight in determining the proper way to interpret the Constitution.
Despite the importance of precedent, the Constitution remains the supreme law of the land, and the Court and its observers may fairly consider whether a particular decision was right or wrong. The Supreme Court may therefore revisit some of its doctrines and try to adjust its pronouncements to the commands of the Constitution.
What does the "interstate commerce clause" in the Constitution mean?
The so-called general welfare clause of Article I, Section 8—also called the spending clause—empowers Congress to raise revenue for two purposes: to pay debts and to provide for the common defense and the general welfare of the United States. Alexander Hamilton and James Madison, the principal authors of The Federalist, famously disagreed about the meaning of “general welfare” and the limits to Congress’s spending power. Yet even Hamilton, who had the most expansive reading of the clause, believed it restricted federal spending to projects which legitimately benefited the entire (general) nation—not just one region or interest group. Early Congresses too recognized that it was not an unlimited grant of power. The first Congress, for instance, declined to fund most local infrastructure projects, but it did fund the construction of a lighthouse deemed necessary for interstate commerce and, thereby, beneficial for the economy as a whole.
Since the 1930s, Congress and the Courts have adoptedthe view that there are no limitations whatsoever on Congress’s power to spend and that “general welfare” means whatever Congress says it means. Today, no project is deemed too local or too narrow not to fall under the “general welfare” rubric.
For more on this clause, see John C. Eastman’s Constitutional Guidance for Lawmakers essay “Enough Is Enough: Why General Welfare Limits Spending.”
How is the Constitution amended?
In its original meaning, the Commerce Clause (Article I, Section 8, Clause 3) gives Congress the power to promote commerce by lifting any artificial barriers that may be placed upon it. It does not grant Congress blanket authority to regulate anything it pleases.
Since the mid-20th century, however, the Supreme Court has interpreted the clause to give the federal government virtually unlimited regulatory power over any activity that impacts two or more states. For example, the Court has ruled that farmers growing food for their own personal consumption affects interstate commerce and may therefore be regulated by Congress (Wickard v. Filburn). This interpretation does not fit with the history of this clause.
After the Revolution, the states imposed competing tariffs that restricted the flow of goods across state lines. Under the Articles of Confederation, Congress had no power to fix this problem. The Constitution corrected the Articles’ failings by granting Congress the power to lift artificial barriers on interstate commerce. The Founders saw this as a necessary condition for a thriving commercial republic.
For more on this clause, see David Forte’s Constitutional Guidance for Lawmakers essay “
Commerce, Commerce, Everywhere: The Uses and Abuses of the Commerce Clause.”
What is the Bill of Rights? Why was it added to the Constitution?
Article V of the Constitution explains the two steps in the amendment process: an amendment must first be proposed and then it must be ratified, thereby making it part of the Constitution.
There are two ways to propose an amendment: two-thirds of both the House and the Senate can vote to propose particular amendments, or two-thirds of the states, through their legislatures, can call for a constitutional convention to propose amendments. Because of extensive unknowns, this latter method has never been used; it has only been suggested in the direst of circumstances.
Once proposed, amendments must then be ratified with a simple majority vote by three fourths of the states (38 of 50), either in their legislatures, or through special ratifying conventions. Congress has the authority to specify which method the states use. Only once, in the case of the Twenty-first Amendment repealing Prohibition, did Congress require ratification by state conventions.
By design, the amendment process requires extensive deliberation and ensures that amendments are the settled opinion of the American people. Of the more than 11,000 proposals to amend the Constitution that have been introduced in Congress, only 33 were sent to the states for ratification, 27 of which became amendments.
For more detailed discussion of the amendment procedure, see the Constitutional Guidance for Lawmakers essay “Article V: Congress, Conventions, and Constitutional Amendments” by Matthew Spalding and Trent England.
Does the First Amendment create a wall of separation between church and state?
The first ten amendments to the Constitution, ratified effective December 15, 1791, comprise the Bill of Rights. These amendments limit the powers of government in order to protect certain fundamental rights, like freedom of the press.
Many Founders, however, believed the inclusion of a bill of rights in the Constitution was unnecessary. In Federalist 84, Hamilton argued a bill of rights was unnecessary because the Constitution is a document of limited, enumerated powers. “We the people” vest each branch of government with specific powers. Congress receives the “powers herein granted”—not legislative power over everything and anything. Nowhere in the Constitution have “we the people” given Congress power to regulate speech or religion, or to police the states generally. Thus limitations on powers Congress does not possess are unnecessary.
Hamilton's larger objection, though, is that a bill of rights “would afford a colorable pretext to claim more [powers] than were granted.” After all, he asks “why declare that things shall not be done which there is no power to do?” Nevertheless, Anti-Federalists (opponents of the Constitution) insisted on the inclusion of a Bill of Rights.
The Constitution itself, not the Bill of Rights, establishes the institutions and processes necessary to guard against tyranny and secure individual liberty. The Constitution is the chief guard of our liberties.
For more on the Bill of Rights, see Joseph Postell’s WebMemo “Securing Liberty: The Purpose and Importance of the Bill of Rights.”
What’s the point of the Tenth Amendment?
No. While the First Amendment mandates the separation of church and state, it does not create an impregnable wall between them. It states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The amendment prevents Congress from establishing an official state religion. It does not support the modern view that religion must be excluded entirely from the public square.
The Founders opposed the establishment of a national church (though the federal government did not do away with state establishments): church doctrine would not determine the laws, and laws would not determine church doctrine. The Founders were not, however, hostile to religion and did not view references to God in public laws, official speeches and ceremonies, on public property and in public buildings, and even in public schools as an unconstitutional establishment of religion.
For more on the subject, see Daniel Dreisbach’s First Principles essay “The Mythical ‘Wall of Separation’: How a Misused Metaphor Changed Church-State Law, Policy, and Discourse.”
What did the Seventeenth Amendment do to federalism?
The Tenth Amendment—the last of the ten amendments that make up the Bill of Rights—expresses the principle that undergirds the entire plan of the original Constitution: the national government possesses only those powers specifically delegated to it. The Tenth Amendment grants no powers but is a rule for construction, restating, in a different way, what Article I, Section 1 of the Constitution already had stipulated: Congress only possesses the powers “herein granted” by the Constitution. All other powers, by implication, remain with the states or the sovereign people.
In a few words, the Tenth Amendment concisely articulates the very idea and structure of a government of limited powers. It also reinforces the federal system created by the Constitution and acts as a bulwark against federal intrusion on state authority and individual liberty.
For more on this clause, see Charles Cooper’s Constitutional Guidance for Lawmakers essay “The Constitution in One Sentence: Understanding the Tenth Amendment.”
Could women vote in federal elections before the ratification of the Nineteenth Amendment?
The Seventeenth Amendment, ratified in 1913, provided for the direct election of U.S. Senators. This changed the original language of the Constitution, which provided that senators would be chosen by state legislatures. In doing so, it altered the principal mechanism designed to protect federalism.
While most Americans are aware of the horizontal system of checks and balances that the Founders carefully designed into our government by separating the legislative, judicial, and executive branches, many do not realize that the Founders also installed this important vertical check—the election of senators by state legislators. The Founders understood that giving state legislatures the power to elect senators made it in the self-interest of senators to protect state governments against encroachments on their sovereignty and authority by the federal government. This was balanced by a popularly elected House of Representatives that protected the interests of the American people.
The exponential growth in the size and power of the federal government at the expense of the states in the 20th century, and the imposition of unfunded mandates on the states, can be traced in part to this change. Indeed, this was the intended result of the Progressive-era advocates of the Seventeenth Amendment.
Is America a republic or a democracy? What’s the difference?
Yes. The Constitution grants the states—not Congress—the power to determine the qualifications of voters for federal elections. Consequently, the question of women’s suffrage was, until the ratification of the Nineteenth Amendment, determined on a state-by-state basis.
This was by no means an empty formality. At the time of the Founding, women were voting in New Jersey—a first in recorded history! Wyoming, first as a territory and then as a state, has always granted women suffrage. In fact, 15 states allowed women full suffrage before the ratification of the Nineteenth Amendment and another 13 states allowed women to vote in presidential elections. By 1920, only seven states entirely denied women the right to vote. Thus, while universal women’s suffrage was not granted until the ratification of the Nineteenth amendment, women had long since exercised the right to vote.
For more on women’s suffrage, see the 1797 New Jersey law allowing women to vote, in the First Principles Primary Source series.
What is nullification and is it constitutional?
When Americans pledge allegiance to the “flag of the United States of America,” they uphold “the republic for which it stands.” A republic, as James Madison explains in Federalist 10, is a “government in which the scheme of representation takes place.” Unlike a democracy in which the citizens themselves pass laws, in a republic such as ours, citizens rule through the representatives they elect.
The Framers founded a republic because they recognized that mob rule could be just as great a threat to liberty as the rule of a king. Representation, Madison explains in Federalists 63, is “sometimes necessary as a defense to the people against their own temporary errors and delusions.” America’s constitutional framework thereby seeks to protect the people from the dangers of unchecked popular democracy. Representatives, who are supposed to be a cut above the rest, are entrusted with the legislative power. They, of course, remain ultimately accountable to the people who can vote them out office as they see fit.
In everyday speech, people praise democracy as the most just form of government. What they mean by “democracy” is a regime in which free elections regularly take place and a government that protects the rights of all. Understood this way, America is a democracy, or to be more precise, a democratic republic.
Nullification is the claim that an individual state legislature has the authority to veto federal laws. In the face of seemingly unstoppable federal overreach, some have been tempted to embrace nullification as a means of challenging unconstitutional actions by the federal government.
Nullification, however, is inherently unconstitutional.
The Constitution is the supreme law of the land—not the Supreme Court, the federal government, or an individual state legislature, for that matter. State legislatures can do many things to object to, challenge, and seek the repeal of federal laws they deem unconstitutional. But there is no clause or implied power in either the national or the various state constitutions that enables states to veto federal laws unilaterally. Indeed, James Madison, the father of the Constitution, firmly and repeatedly denounced nullification as unconstitutional.
Rejecting nullification as an option does not mean that the states or the people have no recourse. The Constitution itself lays out the best path to change unconstitutional laws: object to the law and change opinions (and political leadership) in the political process, defund and slow its implementation, change or repeal the law, challenge it in the courts, and, if necessary, amend the Constitution.
For more on the subject, see the Heritage factsheet "Nullification: Unlawful and Unconstitutional" and Christian Fritz’s First Principles Essay "Interposition and the Heresy of Nullification: James Madison and the Exercise of Sovereign Constitutional Powers"