An excerpt from The Heritage
Guide to the Constitution
The Constitution of the United States has endured for over two
centuries. It remains the object of reverence for nearly all
Americans and an object of admiration by peoples around the world.
William Gladstone was right in 1878 when he described the U.S.
Constitution as "the most wonderful work ever struck off at a given
time by the brain and purpose of man."
Part of the reason for the Constitution's enduring strength is
that it is the complement of the Declaration of Independence. The
Declaration provided the philosophical basis for a government that
exercises legitimate power by "the consent of the governed," and it
defined the conditions of a free people, whose rights and liberty
are derived from their Creator. The Constitution delineated the
structure of government and the rules for its operation, consistent
with the creed of human liberty proclaimed in the Declaration.
Justice Joseph Story, in his Familiar Exposition of the
Constitution (1840), described our Founding document in these
terms:
We shall treat [our Constitution], not as a mere compact, or
league, or confederacy, existing at the mere will of any one or
more of the States, during their good pleasure; but, (as it
purports on its face to be) as a Constitution of Government, framed
and adopted by the people of the United States, and obligatory upon
all the States, until it is altered, amended, or abolished by the
people, in the manner pointed out in the instrument itself.
By the diffusion of power--horizontally among the three separate
branches of the federal government, and vertically in the
allocation of power between the central government and the
states--the Constitution's Framers devised a structure of
government strong enough to ensure the nation's future strength and
prosperity but without sufficient power to threaten the liberty of
the people.
The Constitution and the government it establishes "has a just
claim to [our] confidence and respect," George Washington wrote in
his Farewell Address (1796), because it is "the offspring of our
choice, uninfluenced and unawed, adopted upon full investigation
and mature deliberation, completely free in its principles, in the
distribution of its powers uniting security with energy, and
containing, within itself, a provision for its own amendment."
The Constitution was born in crisis, when the very existence of
the new United States was in jeopardy. The Framers understood the
gravity of their task. As Alexander Hamilton noted in the general
introduction to The Federalist,
[A]fter an unequivocal experience of the inefficacy of the
subsisting federal government, [the people] are called upon to
deliberate on a new Constitution for the United States of America.
The subject speaks its own importance; comprehending in its
consequences nothing less than the existence of the Union, the
safety and welfare of the parts of which it is composed, the fate
of an empire in many respects the most interesting in the
world.
Several important themes permeated the completed draft of the
Constitution. The first, reflecting the mandate of the Declaration
of Independence, was the recognition that the ultimate authority of
a legitimate government depends on the consent of a free people.
Thomas Jefferson had set forth the basic principle in his famous
formulation:
We hold these truths to be self-evident, that all men are
created equal, that they are endowed by their Creator with certain
unalienable Rights, that among these are Life, Liberty, and the
pursuit of Happiness. That to secure these rights, Governments are
instituted among Men deriving their just powers from the consent of
the governed.
That "all men are created equal" means that they are equally
endowed with unalienable rights. Nature does not single out who is
to govern and who is to be governed; there is no divine right of
kings. Nor are rights a matter of legal privilege or the
benevolence of some ruling class. Fundamental rights exist by
nature, prior to government and conventional laws. It is because
these individual rights are left unsecured that governments are
instituted among men.
Consent is the means by which equality is made politically
operable and whereby arbitrary power is thwarted. The natural
standard for judging if a government is legitimate is whether that
government rests on the consent of the governed. Any political
powers not derived from the consent of the governed are, by the
laws of nature, illegitimate and hence unjust.
The "consent of the governed" stands in contrast to "the will of
the majority," a view more current in European democracies. The
"consent of the governed" describes a situation where the people
are self-governing in their communities, religions, and social
institutions, and into which the government may intrude only with
the people's consent. There exists between the people and limited
government a vast social space in which men and women, in their
individual and corporate capacities, may exercise their
self-governing liberty. In Europe, the "will of the majority"
signals an idea that all decisions are ultimately political and are
routed through the government. Thus, limited government is not just
a desirable objective; it is the essential bedrock of the American
polity.
A second fundamental element of the Constitution is the concept
of checks and balances. As James Madison famously wrote in The
Federalist No. 51,
In framing a government which is to be administered by men over
men, the great difficulty lies in this: You must first enable the
government to controul the governed; and in the next place oblige
it to controul itself. A dependence on the people is, no doubt, the
primary controul on the government; but experience has taught
mankind necessity of auxiliary precautions.
These "auxiliary precautions" constitute the improved science of
politics offered by the Framers and form the basis of their
"Republican remedy for the diseases most incident to Republican
Government" (The Federalist No. 10).
The "diseases most incident to Republican Government" were
basically two: democratic tyranny and democratic ineptitude The
first was the problem of majority faction, the abuse of minority or
individual rights by an "interested and overbearing" majority. The
second was the problem of making a democratic form of government
efficient and effective. The goal was limited but energetic
government. The constitutional object was, as the late
constitutional scholar Herbert Storing said, "a design of
government with the powers to act and a structure to make it act
wisely and responsibly."
The particulars of the Framers' political science were
catalogued by Madison's celebrated collaborator in The
Federalist, Alexander Hamilton. Those particulars included such
devices as representation, bicameralism, independent courts of law,
and the "regular distribution of powers into distinct departments;'
as Hamilton put it in The Federalist No. 9; these were
"means, and powerful means, by which the excellencies of republican
government may be retained and its imperfections lessened or
avoided."
Central to their institutional scheme was the principle of
separation of powers. As Madison bluntly put it in The
Federalist No. 47, the "preservation of liberty requires that
the three great departments of power should be separate and
distinct," for, as he also wrote, "The accumulation of all powers,
legislative, executive, and judiciary, in the same hands, whether
of one, a few, or many, and whether hereditary, self-appointed or
elective, may justly be pronounced the very definition of
tyranny."
Madison described in The Federalist No. 51 how structure
and human nature could be marshaled to protect liberty:
[T]he great security against a gradual concentration of the
several powers in the same department, consists in giving to those
who administer each department, the necessary constitutional means,
and personal motives to resist encroachments of the others.
Thus, the separation of powers frustrates designs for power and
at the same time creates an incentive to collaborate and cooperate,
lessening conflict and concretizing a practical community of
interest among political leaders.
Equally important to the constitutional design was the concept
of federalism. At the Constitutional Convention there was great
concern that an overreaction to the inadequacies of the Articles of
Confederation might produce a tendency toward a single centralized
and all-powerful national government. The resolution to such fears
was, as Madison described it in The Federalist, a government
that was neither wholly federal nor wholly national but a composite
of the two. A half-century later, Alexis de Tocqueville would
celebrate democracy in America as precisely the result of the
political vitality spawned by this "incomplete" national
government.
The institutional design was to divide sovereignty between two
different levels of political entities, the nation and the states.
This would prevent an unhealthy concentration of power in a single
government. It would provide, as Madison said in The
Federalist No. 51, a "double security. .. to the rights of the
people." Federalism, along with separation of powers, the Framers
thought, would be the basic principled matrix of American
constitutional liberty. "The different governments;' Madison
concluded, "will controul each other; at the same time that each
will be controulled by itself."
But institutional restraints on power were not all that
federalism was about. There was also a deeper understanding--in
fact, a far richer understanding--of why federalism mattered. When
the delegates at Philadelphia convened in May 1787 to revise the
ineffective Articles of Confederation, it was a foregone conclusion
that the basic debate would concern the proper role of the states.
Those who favored a diminution of state power, the Nationalists,
saw unfettered state sovereignty under the Articles as the problem;
not only did it allow the states to undermine congressional efforts
to govern, it also rendered individual rights insecure in the hands
of "interested and overbearing majorities." Indeed, Madison,
defending the Nationalists' constitutional handiwork, went so far
as to suggest in The Federalist No. 51 that only by way of a
"judicious modification" of the federal principle was the new
Constitution able to remedy the defects of popular, republican
government.
The view of those who doubted the political efficacy of the new
Constitution was that good popular government depended quite as
much on a political community that would promote civic or public
virtue as on a set of institutional devices designed to check the
selfish impulses of the majority As Herbert Storing has shown, this
concern for community and civic virtue tempered and tamed somewhat
the Nationalists' tendency toward simply a large nation. Their
reservations, as Storing put it, echo still through our political
history.[1]
It is this understanding, that federalism can contribute to a
sense of political community and hence to a kind of public spirit,
that is too often ignored in our public discussions about
federalism. But in a sense, it is this understanding that makes the
American experiment in popular government truly the novel
undertaking the Framers thought it to be.
At bottom, in the space left by a limited central government,
the people could rule themselves by their own moral and social
values, and call on local political institutions to assist them.
Where the people, through the Constitution, did consent for the
central government to have a role, that role would similarly be
guided by the people's sense of what was valuable and good as
articulated through the political institutions of the central
government. Thus, at its deepest level popular government means a
structure of government that rests not only on the consent of the
governed, but also on a structure of government wherein the views
of the people and their civic associations can be expressed and
translated into public law and public policy, subject, of course,
to the limits established by the Constitution. Through
deliberation, debate, and compromise, a public consensus is formed
about what constitutes the public good. It is this consensus on
fundamental principles that knits individuals into a community of
citizens. And it is the liberty to determine the morality of a
community that is an important part of our liberty protected by the
Constitution.
The Constitution is our most fundamental law. It is, in its own
words, "the supreme Law of the Land." Its translation into the
legal rules under which we live occurs through the actions of all
government entities, federal and state. The entity we know as
"constitutional law" is the creation not only of the decisions of
the Supreme Court, but also of the various Congresses and of the
President.
Yet it is the court system, particularly the decisions of the
Supreme Court, that most observers identify as providing the basic
corpus of "constitutional law." This body of law, this judicial
handiwork, is, in a fundamental way, unique in our scheme, for the
Court is charged routinely, day in and day out, with the awesome
task of addressing some of the most basic and most enduring
political questions that face our nation. The answers the Court
gives are very important to the stability of the law so necessary
for good government. But as constitutional historian Charles Warren
once noted, what is most important to remember is that "however the
Court may interpret the provisions of the Constitution, it is still
the Constitution which is the law, not the decisions of the
Court."[2]
By this, of course, Warren did not mean that a constitutional
decision by the Supreme Court lacks the character of binding law.
He meant that the Constitution remains the Constitution and that
observers of the Court may fairly consider whether a particular
Supreme Court decision was right or wrong. There remains in the
country a vibrant and healthy debate among the members of the
Supreme Court, as articulated in its opinions, and between the
Court and academics, politicians, columnists and commentators, and
the people generally, on whether the Court has correctly understood
and applied the fundamental law of the Constitution. We have seen
throughout our history that when the Supreme Court greatly
misconstrues the Constitution, generations of mischief may follow.
The result is that, of its own accord or through the mechanism of
the appointment process, the Supreme Court may come to revisit some
of its doctrines and try, once again, to adjust its pronouncements
to the commands of the Constitution.
This recognition of the distinction between constitutional law
and the Constitution itself produces the conclusion that
constitutional decisions, including those of the Supreme Court,
need not be seen as the last words in constitutional construction.
A correlative point is that constitutional interpretation is not
the business of courts alone but is also, and properly, the
business of all branches of government. Each of the three
coordinate branches of government created and empowered by the
Constitution--the executive and legislative no less than the
judicial--has a duty to interpret the Constitution in the
performance of its official functions. In fact, every official
takes a solemn oath precisely to that effect. Chief Justice John
Marshall, in Marbury v. Madison (1803), noted that the
Constitution is a limitation on judicial power as well as on that
of the executive and legislative branches. He reiterated that view
in McCullough v. Maryland (1819) when he cautioned judges
never to forget it is a constitution they are expounding.
The Constitution--the original document of 1787 plus its
amendments--is and must be understood to be the standard against
which all laws, policies, and interpretations should be measured.
It is our fundamental law because it represents the settled and
deliberate will of the people, against which the actions of
government officials must be squared. In the end, the continued
success and viability of our democratic Republic depends on our
fidelity to, and the faithful exposition and interpretation of,
this Constitution, our great charter of liberty.
Edwin
Meese III is Ronald Reagan Distinguished Fellow in Public
Policy and Chairman of the Center for Legal and Judicial Studies at
The Heritage Foundation. This essay is excerpted from
The Heritage Guide to the Constitution, a line-by-line analysis
of the original meaning of each clause of the United States
Constitution, edited by David Forte and Matthew Spalding.