Features of the Constitution

The United States Constitution was groundbreaking in numerous ways, establishing a new government, the likes of which the world had never seen. Indeed, the very features which made it unique have also contributed to its longevity. These features also define the framework of American government and politics, establishing the United States of America, its national government and outlining the relationships between that government, the people and the states.

The most significant features of the U.S. Constitution are the establishment of the rule of law, the creation of a federal system with a supreme national government, the separation of governmental powers into three branches that check and balance each other, its flexibility and the establishment of a republican form of government.

The Constitution and the Rule of Law

The most profound accomplishment of the American Framers was the establishment of a document that is the supreme law of the land. No monarch, political leader or lawyer can create law simply by declaring something to be law. In the United States, the Constitution is "king."1 Only laws passed through the mechanisms established by the Constitution are valid. Furthermore, any law that is inconsistent with the limitations, structures or principles established by the Constitution is considered, by definition, invalid.

The Constitution is considered the supreme law of the land both because of its content and because its authority is derived from the people. The concepts and ideas of the Constitution are the "higher law" in the United States of America, things which a government cannot create or destroy. Among these concepts and ideas is the notion that the people are sovereign and that legitimate governments must be based on popular consent. Because the Constitution was ratified by the representatives of the people, it is a document, in both word and deed, created by and for "we the people."

While the Constitution is the supreme law of the land, most of the specific, day-to-day rules and regulations that bring order to American society are not included in the Constitution itself. These "ordinary" laws are creations of the Congress, state legislatures and city councils. But the notion that laws are more important than the opinions of individual people--even important people--applies to these laws as well. In America, no one is considered to be above the law. In fact, deliberately trying to avoid the law through deception or bribery are crimes in and of themselves. Even a president who violates the law can be held accountable for doing so.

A Federal System

In practical terms, the single most important feature of the Constitution is probably the federal system it created. Without the inclusion of the federal principle, the Constitution would certainly have been rejected at the Convention. Even if it had survived there, it would have been soundly defeated in the battle for ratification. In terms of the daily operations of the government, national-state governmental relations have a more profound impact on more aspects of politics and the economy than perhaps any other feature of America's constitutional system.

A federal system is one in which a national government exercises at least some coordinating authority over the governments in smaller jurisdictions within the larger borders of that nation. Under the Articles of Confederation, the national government had authority to enforce any of its enactments as it attempted to guide the states in their "league of friendship." What Madison and other proponents of the Constitution proposed was the creation of a truly federal system in which the national government had authority to compel the states to pay taxes and comply with other national laws. Under this arrangement, the states would retain unique powers and authority, passing laws and governing the people who lived within their boundaries. The critics of the Constitution complained that the system established by the Constitution was not a federal one at all but rather a national or unitary one in which the states were wholly subordinate to the national government. A truly federal system would give a voice to states in the creation and implementation of law.

Responding to such criticisms, Madison wrote in the Federalist No. 39 that the Constitution established a thoroughly federal system, albeit with some "judicious modifications" of the federal principle. Because it was to be ratified state by state, Madison argued that the Constitution would be federal in its origins. Moreover, given the representation of states in the Senate and the "mixed" manner in which Presidents would be chosen, the composition of the national government would be based, at least in part, on the federal principle, i.e. the representation of the people through their states. While the system is national or unitary in the sense that the laws passed by the national government would apply directly to the people of the nation and not to the states, the system remains federal because the extent of the national government's powers would be limited. Because the jurisdiction of the national government "extends to certain enumerated objects only," Madison wrote, the states are left with "a residuary and inviolable sovereignty over all other objects."

In the federal system, Madison argued that the national and state governments should not be thought of as  "mutual rivals and enemies" because they are "in fact but different agents and trustees of the people, constituted with different powers, and designed for different purposes" (Federalist No. 46). Further addressing the the fears of those opposed to the national government established by the Constitution, Madison contended that there would exist in the federal system a natural bias toward the position of the states:

A local spirit will infallibly prevail much more in the members of Congress, than a national spirit will prevail in the legislatures of the particular States (No. 46).

The system of federalism was clearly a key feature of the Constitution at the time of the Founding and it remains an integral component of American government today. So significant are the issues surrounding the concept and practice of federalism that it will be discussed at length later in this text.

The Separation of Powers and Checks and Balances

Another prominent feature of the U.S. Constitution is its scheme of separated powers. The Framers were well aware of the need to preserve liberty while establishing order with the new Constitution. In perhaps the most famous statement from the Federalist Papers, Madison outlined the problem they faced:

If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. 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 control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions (Federalist No. 51).

The separation of powers and checks and balances are the kinds of precautions Madison had in mind. In the Federalist No. 47, Madison explained why separating powers was so important in controlling the government:

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. Were the federal Constitution, therefore, really chargeable with the accumulation of power, or with a mixture of powers, having a dangerous tendency to such an accumulation, no further arguments would be necessary to inspire a universal reprobation of the system.

Given their fear of consolidation of governmental powers at the national level, the Framers established three distinct branches of government--a legislature, an executive and the judiciary. Their experience with Britain had taught them that when one individual or group of individuals could gain control or undue influence over these separate functions, there could be no guarantee that the rights and liberties of citizens would be protected.

While separating the three powers of government into distinct branches was clearly important to the Framers, they did not favor an absolute or pure separation of these powers. In response to some who argued that the powers of the new government would not be separate enough, Madison referred to several state constitutions of his day to show that "pure separations" were impractical. For the separation of powers to work in practice, each branch must be able to "check and balance" the other.

In the Federalist No. 51, Madison outlines in detail the features of the separated system. It is based on the notion that each branch should, to the extent possible, be independent from the others with regard to their appointments, tenure and compensation. Because those office-holders in each branch could not always be counted on to act in accordance with the public will, each branch must, however, be given the means to check the actions of the other. In Madison's words, by providing each branch a series of checks on the other two would allow "ambition . . . to counteract ambition," thus preserving the liberty of the people from the encroachments of less than well-meaning political leaders.

A Flexible Document

The American Framers hoped, that the Constitution they were drafting would serve the nation for many decades; however, they would probably be pleasantly surprised to learn that it has now been in effect for more than two centuries. The success of the document is due in large part to the flexibility built into it. When changes have been necessary, the amendment process provided by the Constitution itself has been available. However, while the Constitution has been amended twenty-seven times, most of the changes made in the American political system have been made without formally amending the Constitution.

Almost since the day it was ratified, the "general welfare" clause in the Preamble and the "necessary and proper" clause in Article I have been considered the "penumbra" of the Constitution, that portion of the document that the Framers purposely left for future generations to debate and define. It appears that in many instances, the Framers were content to leave unanswered questions about what is "Constitutional" and what is not. For the Constitution to survive, they knew that it would have to be a living, breathing document, capable of both imposing order on the interactions of governments and people as well as reflecting their values and needs as times changed.

A Republican Form of Government

One of the most widely held misconceptions about the American system of government is that it is a democracy. In reality, the American Framers were suspicious of democracy and the problems that attended it. In a pure democracy, the people vote directly on every major political question, with the majority determining which course to take. Because there is nothing to prevent the majority from taking the property, liberty or even the lives of the minority in such a system, the Framers believed that democracy was just as likely to result in tyranny as was a monarchy. Indeed, Madison argued, direct democracies have "in general been as short in their lives as they have been violent in their deaths" (Federalist No. 10).

Properly understood, the form of government established by the Constitution is not a democracy, but rather a republic. What is a republic? Madison offered this definition in the Federalist No. 39:

We may define a republic to be, or at least may bestow that name on, a government which derives all its powers directly or indirectly from the great body of the people, and is administered by persons holding their offices during pleasure, for a limited period, or during good behavior.

In other words, in a republic, the people elect representatives to make decisions on their behalf in the political process. In a republic, the people do not voice their opinions directly in the policy making process, but rather their views are conveyed through their representatives. Such a scheme, Madison argued, will:

[R]efine 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. Under such a regulation, it may well happen that the public voice, pronounced by the representatives of the people, will be more consonant to the public good than if pronounced by the people themselves, convened for the purpose (Federalist No. 10).

How important was republicanism to the success of the government established by the Constitution? Madison wrote:

It is evident that no other form would be reconcilable with the genius of the people of America; with the fundamental principles of the Revolution; or with that honorable determination which animates every votary of freedom, to rest all our political experiments on the capacity of mankind for self-government. If the plan of the convention, therefore, be found to depart from the republican character, its advocates must abandon it as no longer defensible (see Federalist No. 39).

The republican form of government the Framers established is largely intact in the United States, especially at the national level. While Senators are now directly elected by the people (instead of by state legislatures) and several states have enacted provisions allowing for various forms of direct democracy (such as ballot initiatives and referendums), the American system of government is primarily a representative republic, not a democracy.

By design, then, the decisions made by America's political leaders are often different from the will of the majority of the people at any given point in time. Individual political leaders, however, are kept in check through frequent elections. Members of the House of Representatives must face reelection every two years and Senators every six. Presidents serve terms of four years. By staggering these elections so that there is never a case in which congressional seats and the presidency are being contested at the same time, it is impossible for a majority faction to take control of the national government through one election.

A New Covenant

Collectively, the provisions of the Constitution sought to establish a "new covenant" for the American people. More than at any other time in political history, the people of a nation had the opportunity to covenant with one another to govern themselves. The arrangement to which they were being asked to pledge their mutual support was based on a view of government far different from the adversarial view they had become accustomed to. Instead of viewing government as the enemy, the new Constitution challenged the people to view the government as the protector of liberty.

During the debates on ratification, supporters of the Constitution would argue, at least in part, that a Bill of Rights was unnecessary in the the new Constitution because such a listing of rights was irrelevant. Under the new Constitution, there was no significant distinction to be made between the government and the people. The people who were elected to hold positions of power, the Framers believed, "will represent the people, they will be the people,... [they will be] ourselves; the men of our own choice, in whom we can confide; whose interest is inseparably connected with our own."2 It was on the basis of this argument that the Federalists rested their hopes for a successful ratification effort. If the people believed that the new Constitution established a government which was their enemy, it would surely be rejected. If, on the other hand, it could be shown that the new Constitution would create a government that was the champion of the people and their rights, a government that was a reflection of the will and interests of the people, ratification would be assured.


NOTES
1. Thomas Paine, Political Writings, 45-6.
2. Gordon S. Wood, The Creation of the American Republic, 1776-1787 (New York: W.W. Norton & Company, 1969), 545.