The Essentials of the Constitutional Scheme

Welcome back to Constitutional Perspectives!

Last time, we wrapped up (for now) the story of where the Constitution came from. That means it's time to begin diving into matters of substance! Today I'll be laying out a quick sketch of basics of the entire constitutional scheme. The rest of Level One will then provide somewhat more detail about the different components of that scheme.

As I said way back in the first lesson, the Constitution can be understood as a kind of social contract. It is, in other words, the instrument by which the People of the United States, to whom all sovereign political power natively belongs, confer a portion of that power on their government – thereby constituting it. The most distinctive feature of the American constitutional scheme is that political power is divided among different institutions. The early social contract theorists, on the other hand, had mostly envisioned the government as a unitary entity; Thomas Hobbes in particular was insistent that the government's power must be absolute and unlimited.

The Americans disagreed. Our Constitution divides political power along three principle axes:

• Between the People as individuals and their government, taken as a whole;
• Between the several states and the federal government; and
• Between the legislative, executive, and judicial branches of the federal government.

The first of these divisions is the subject of the law of constitutional rights. The second division is referred to as federalism, and the third as separation of powers. This last appellation is slightly inexact: each of the branches of our federal government partakes to some degree in the powers of the others, which Montesquieu, the theorist who originated the concept of separation of powers, would have thought anathema. Thus, our system is arguably better described as one of checks and balances. But separation of powers is a part of the language used to discuss our constitutional scheme, and I will use it accordingly.

Anyway. I'll say a little here about each of these three divisions, in reverse order from how I presented them above.

Separation of Powers

Each of the first three Articles of the Constitution deals with one branch of the federal government. Article I gives the legislative power (well, technically "all legislative powers herein granted") to Congress, which is divided between the House of Representatives and the Senate. Article II gives the executive power to the president. Finally, Article III gives the judicial power to, uhhhh, the judiciary? To "one supreme Court, and such inferior Courts as the Congress may from time to time ordain and establish," to be a little more precise.

We often speak of these branches as being "coequal." (Of course, the word "coequal" is redundant, since an equality relationship is defined among other things by being symmetrical. Alas.) The idea is that no one branch sits inherently above the others. All trace their authority directly to the Constitution, and therefore to the People. Moreover, no branch is made dependent on the others. Members of Congress and the president are both elected by the People (albeit indirectly in the president's case). They all serve for fixed terms, meaning that once elected, they remain in office for a set period of time (i.e. the time until the next election to their seat). This is different from a parliamentary system, where the executive (typically called a prime minister) is chosen by the legislature and remains in office only as long as they maintain majority support in the legislature. Finally, while federal judges are appointed by the other branches, they hold their office "during good behavior," i.e. for life.

Although the branches are, in these senses, coequal, Congress is rather clearly meant to be first among equals (or "primus inter pares," to use the classical expression). This is kind of just in the nature of the respective powers. The executive power is the power to execute the laws. But it is Congress, with the legislative power, that writes the laws. To a very significant extent, without Congress there would be nothing for the president to do. Similarly, judges apply the law to the cases that come before them, but it is Congress that wrote most of those laws.

But there are other ways as well in which Congress is made central to the functioning of the entire system. It has significant power to rein in the other branches when it wants to. Most dramatically, Congress can impeach the members of the other branches, thereby removing them from office. This is, to be clear, quite a bit harder than removing a prime minister through a vote of no confidence in a parliamentary system. Under our Constitution, impeachment is meant only as a remedy for severe misconduct ("high crimes and misdemeanors" is the phrase). But impeachment symbolizes that it is ultimately Congress's job to hold the other branches to account. For this reason among others, I often like to say that everything is Congress's fault, because Congress ultimately has the tools to fix just about anything if it puts its mind to it.

An interesting fact about the Constitution is that Article I is much longer and more detailed than Article II, which in turn is longer and more detailed than Article III. The Convention spent a lot of time thinking about the structure of Congress. It was, you may recall, the biggest topic of controversy at the Convention, and was the subject of the Great Compromise. They were somewhat less meticulous in detailing how the presidency was to operate; the conventional explanation for this is that everyone knew that General Washington was going to be the first president, and trusted him to be the one to figure this all out. Finally, Article III mostly just leaves the question of what the federal courts are going to look like to Congress.

It is easy to see all of this, as well as just the fact that Article I is, you know, first, as reflecting the primacy of Congress. But I should note that the length and detail of Article I also reflects, in part, the Founders' efforts to limit Congress. We often think of the Constitution as a reaction against monarchy, but that's not quite right. The Revolution was (arguably, in part) a reaction against monarchy. But the Constitution came quite a few years later, and was most directly reacting against the dysfunction of the Articles of Confederation and the state governments in the 1780s. In that context, many of the Founders had come to believe that the legislative power was naturally overbearing and dominating. Much of the point of the federal Constitution, then, was to create adequate counterbalances to the considerable power being vested in the new Congress. Hence the two other equal and independent branches of government.

I'll have more to say about the design of each individual branch, as well as about the ways in which they are made to check and balance one another, in the upcoming lessons.

Federalism

The previous section discussed the allocation of power among the different branches of the federal government, but those are not the only government institutions in this country. There are also the state governments – fifty of them today, up from thirteen at the Founding, each of which governs a particular portion of the nation's territory.

Every state has its own constitution. Indeed, as we saw last time, the whole business of states having constitutions predates 1789! For the most part, the federal Constitution does not say anything about how the states have to structure their own governments. But, as it happens, with one minor and one major exception every single state's constitution more or less copies the basic scheme of the federal government, with an elected, bicameral legislature, a separately-elected governor as chief executive, and an independent judiciary. (The minor exception is that Nebraska's legislature has only one chamber; the major exception is that almost every state chooses at least some of its judges by popular election, and only Rhode Island still gives its judges life tenure.)

All three powers of government are divided between the states and the federal government. The president, for instance, has the power to execute federal laws, but state governors are charged with executing state laws. But when we talk about federalism, and the division of power between the states and the Union, we are mostly talking about the division of legislative authority. This division then largely shapes and informs the division of executive and judicial power.

There are two defining features to the division of legislative power between the state and federal governments. First, federal law is supreme over state law. In other words, if (otherwise valid) state and federal laws come into conflict, the federal law is to prevail. So long as the federal government is acting within the scope of its powers, the states are forbidden from interfering with what it is doing. On the other hand, Congress has only those powers granted by the Constitution. States, by contrast, have general legislative authority. The Massachusetts Constitution, to give an illustrative example, gives to the state legislature

...full power and authority ... to make, ordain, and establish, all manner of wholesome and reasonable orders, laws, statutes, and ordinances, directions and instructions ... as they shall judge to be for the good and welfare of this commonwealth, and for the government and ordering thereof...

We call this kind of general lawmaking authority plenary authority; it is also sometimes referred to as the "police power."

This does not mean, to be clear, that state legislatures have unlimited power. Rather, it is about the way in which their limited authority is defined. Various sources of law – the federal Constitution most notably, but also state constitutions and federal laws – impose specific limitations on the powers of state legislatures. Outside of those prohibitions, they have a residual authority over everything. Every power not forbidden to the state legislatures, in other words, is granted to them. With Congress this rule is reversed: the grants of power are express and specific, and everything falling outside those grants is denied. The Tenth Amendment summarizes all of this nicely:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Those last four words, of course, lead us to the third and final axis along which our Constitution divides political power...

Individual Rights

The Constitution, as I have said, is (or at least can be thought of as) a social contract by which the People confer authority upon their government and its institutions. But they do not give away all of their natural sovereign powers to the state: some is reserved. Some powers, in our system, belong solely to the individual, and cannot be interfered with by any organ of government.

This may not be an intuitive way to think about what constitutional rights are. We are not inclined to think of an individual acting according to their own will as exercising a kind of political power. But the social contract tradition out of which our government emerged absolutely did think that way. Individuals natively have power to regulate their own conduct. We choose, every moment, what to do, what to say, whom to befriend or love or hate. The legislative power, as exercised by governments (legitimate ones, anyway), is made up of this same stuff, as delegated to the government by the people as a collective. In some matters, we allow the community, as instantiated in government institutions, to make these decisions for us.

But only in some matters. The passage in which the Declaration of Independence proclaims the right of the People to determine the form of their government famously begins with the assertion that human beings are "endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness." The word unalienable may be unfamiliar, or may register only as meaning "inviolable." What it actually means is non-transferrable. Property rights, for instance, are (usually) "alienable," meaning that if I own something, I can give it to you if I want. To say that certain rights (or, strictly speaking, powers) are inalienable, then, is to say that they cannot be transferred via the social contract. Thus, no government can ever justly possess these powers.

Our Constitution today reflects this view. The Bill of Rights (a.k.a. the first ten amendments), along with a few other provisions, identify specific rights that no organ of government, state or federal, can violate. But this was not always the case. The original Constitution, as drafted at and proposed by the Philadelphia Convention, lacked a bill of rights, as I discussed last time. There were a few minor provisions in something of the same spirit (both state and federal governments were forbidden from passing bills of attainder or ex post facto laws, to take the most notable example – if you don't know what those phrases mean, don't worry about it yet), but nothing like the declarations of rights in the state constitutions of the time.

Of course, this defect was remedied within two years of ratification with the adoption of the Bill of Rights we know and love today. But even then, there were no unified body of law limiting government as a whole. Rather, for the first four score and negative three years of its existence, the Bill of Rights was only a set of limitations on the powers of the federal government. You can see this in the opening words of the First Amendment ("Congress shall make no law..."). It's also plain enough in the history of the ratification debates: what the Anti-Federalists were afraid of was the scary new national government being created. Besides, the states all already had their declarations of rights. But the question of which rights were ultimately reserved to the People as individuals was essentially a state matter.

This changed in 1868, with the adoption of the Fourteenth Amendment. This imposed a broad set of human rights obligations on the state governments for the first time. And while the text of the Fourteenth Amendment's limitations are far more general even than those of the Bill of Rights, it has been held to "incorporate" the Bill of Rights by reference. Mostly. There is a long and torturous history here, which I will be discussing at great depth when we get to Level Two of this series. But today we are basically at the end of this road. Essentially all of the Bill of Rights has been incorporated into the Fourteenth Amendment; essentially all of our constitutional law of human rights applies equally to state and federal governments. This, in my view, represents the completion of the constitutional scheme as it always ought to have been, by the terms of its own philosophical logic.

This completes this sketch of the basic American constitutional scheme. The rest of Level One will go over each of these elements, looking at some of the specifics of how powers are divided along these three axes. We'll kick things off next time with a consideration of the structure and functioning of Congress!