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Key principles
1. Popular sovereignty
The Constitution derives its political assumptions from the Declaration of Independence [E] [F] [Es] [I], the cornerstone of American ideas about government. These principles were grounded on Locke’s doctrine [E][F] [Es] [I], and were so much a part of the American way of thinking that the Declaration referred to them as “self evident”, the basic premises being that men are by nature endowed with certain inalienable rights, including the right to “life, liberty and the pursuit of happiness”. These rights not only antedate the existence of government, but are superior to it in authority. The exercise of coercive power by governments over men born free and equal can be justified, then, only by the consent of the governed. Government is therefore created by contract [E][F] [Es] [I] among the citizens in order to serve the welfare of the people and to grant protection of their natural rights. A government that fails to serve the ends for which it was set has breached the contract that brought it into existence. Thus the right to revolution [E] is stated in the Declaration of Independence, which then legitimises the breach with Britain.
When the framers faced the problem of setting up a governmental system that would give effect to these basic principles, they proved divided as to how far they were prepared to turn over the government to popular control. Direct election was provided for the House of Representatives [E], but the Senate [E] was to be chosen by the state legislature. Judges were not elected and only a few of the delegates favoured direct popular election of the President. An evolution has gone on which may be described as a progress on the way of a representative democracy, but this development has taken place within the framework of Constitutional principles. The transformation of presidential choice, for example, from indirect to direct election occurred without any relevant change in the language of the Constitution.
2. Federalism [E] [F] [Es] [I]
The most original feature of the Constitution was the federal structure of the government it created. American federalism is a form of political organization in which authority is divided between two levels of government, each possessing its powers and each acting directly on the citizens. Midway between a confederation [E] [F] [Es] [I], or league of states, and a completely centralized government, the American federal pattern tried to combine the principles of unity and diversity. Moreover, by dividing power between the states and the national government, it was implied that one level of government could serve as a check on the other. This should have provided a “double check” to the rights of the people.
The powers of the new central government were taken from existing state government and delegated to the United States. The most significant listing of powers delegated to the Congress is found in Article 1, section 8. These authorizations were typically stated rather broadly. Backing up these broad grants of specific powers, moreover, was the general authorization to Congress in the last clause of Article 1, Section 8, “to make all laws which are necessary and proper for carrying into execution the foregoing powers”.
Some powers, such as the conduct of foreign relations and the power to coin money, were exclusively delegated to the national power.
Some general but unnamed powers were reserved exclusively to the sates by the Tenth Amendment: “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”.
Some powers were to be exercised by nation and states concurrently – the taxing power, for instance.
Some powers were prohibited to the national government, such as levying direct taxes. Of course, since the federal government had only those powers delegated to it in the Constitution, any powers not delegated were in that sense prohibited. Some powers were forbidden to the states. Article 1, Section 10, for instance, specifies the federal government’s control over foreign relations, the monetary system, and foreign commerce.
Some powers are forbidden to both the nation and the states. These include ex post facto laws (making unlawful an act that was not illegal when it was performed) and titles of nobility.
Conflicts between the States and the nation over the division of functions were bound to occur. To make the federal system work, there needed to be rules for deciding such contests, and an umpire to apply these rules. The principal rule supplied by the Constitution was the Supremacy clause of article VI: “this Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby…”. When Congress entered a field in which it was authorized by the Constitution to act, its legislation would then void all incompatible state regulation. The Judiciary Act [E][F] of 1789 provided for review of state Court decisions by the Supreme Court [E1][E2][F][Es][I], which has ever since functioned then as the umpire of the federal system.
3. Separation of powers [E]
The Constitution entrusted legislative , executive and judical functions to three separate branches of government. The executive and the legislative are independent of each other in that each is elected by separate electoral processes for assured terms of office. The President [E1][E2][F][Es][I] cannot dissolve Congress [E1][E2][F][Es1][Es2][I] or shorten its terms or remove any of its members. The Congress cannot remove the President from office except by the difficult process of impeachment [E][Fr][Es] [I]. The federal judiciary, although appointed by the President and confirmed by the Senate, is independent in the sense that the judges have tenure for life.
Nevertheless, the phrase “separation of powers” is a somewhat misleading definition: it would be more accurate to say that the American Constitution, through a system of checks and balances [E], provides for a government of separated institution sharing powers. The Constitution gives the executive power to the President, but many of his most important executive functions involve participation of Congress. The Senate must confirm all important appointments. The President has great independent power in the field of military and foreign affairs, but he must secure the approval of two thirds of the Senate for the ratification of treaties, and all presidential programs depend upon Congressional appropriation of the necessary fund.
Congress, for its part, is granted “all the legislative powers”, but the President is authorized to “recommend to their consideration such measures as he shall judge necessary”. In fact, the initiation of legislative programs has become most entirely the President’s responsibility. After passage by Congress, all legislation must be submitted to the President for his signature before it becomes effective, and a presidential veto can be overridden only by a two-thirds majority of each House of Congress.
Federal judges are completely independent once they are on the bench, but they must be appointed by the President and their appointment must be confirmed by the Senate. They are subject to impeachment. Congress can exercise some measure of control over the Supreme Court’s power to hear cases. In its turn, the Supreme Court can invalidate any presidential actions and Congressional statutes that they find contrary to the Constitution.
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