Civics 101: The United States of America is a Constitutional Republic, set up as a federation, with the federal government divided into three branches with separated, enumerated powers, and additional specific limits on the exercise of those enumerated powers.
I think that single sentence is a fair synopsis of the intention of the framers of the Constitution, but what did they mean by that? And what does it mean today in practice?
First we have to understand some of the terms in use:
Sovereignty is the authority of a state to govern itself independent of any outside source of authority. In a monarchy the king is sovereign and all authority ultimately comes from the crown.
A Republic is form of government in which the sovereignty lies with some portion of the citizenry, not in a Monarch. A Republic is not necessarily democratic; the portion of the citizenry holding the sovereign power may be a small minority, but it can be democratic, if the portion of the citizenry holding sovereignty is extensive.
A constitution is a framework law, supreme over all other laws in the state, and which sets limits on those other laws and establishes the procedures for their creation and enforcement.
A Constitutional Republic is a state that has a republican form of government subject to the limitations, procedures, and powers set out in a constitution.
A Federation is a sovereign conglomerate state made up of other states, provinces, or administrative districts which either retain, if the federation was from the bottom up with sovereign states coming together, or are granted, if the federation was from the top down with a sovereign state dividing itself, some portion of, but less than all, sovereignty.
Enumerated powers are limited sovereignty. In a government of enumerated powers the State is sovereign only with regard to those areas enumerated in some list; the remainder of the sovereignty resides elsewhere.
The General Police Power, is the largest component of sovereignty. It is the authority of a government to declare various actions criminal and set forth punishments for those acts in order to promote the morality, safety and health of the populace. As such it is limited only by the power and whim of the sovereign. Libertarians generally regard the General Police Power with disfavor, preferring enumerated police powers limited to policing direct harms to the person, property, or liberty of another, but historically the General Police Power has extended to any objective desired by the sovereign.
In 1787 a Constitutional Convention was called into session and created the system of government that persists (however weakly) to this day. The framers of the United States Constitution were attempting to sail between the Scylla of the newborn Nation dividing into 13 completely independent polities and the Charybdis of a centralized Leviathan. The 13 States were sovereign and the prior federation under the Articles of Confederation explicitly recognized that sovereignty. The federal ‘government’ under the articles had almost no independent authority to act and it acted more as a standing conference of the States than as a sovereign power. It rapidly became clear that something more was needed to prevent the 13 States from going their own ways, although it is less clear that such a separate development would have been the disaster feared at the time.
The Federal Government that came out of that convention had sovereignty over matters set out in Article 1, section 8:
1: The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
2: To borrow Money on the credit of the United States;
3: To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
4: To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;
5: To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;
6: To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;
7: To establish Post Offices and post Roads;
8: To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
9: To constitute Tribunals inferior to the supreme Court;
10: To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;
11: To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
12: To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
13: To provide and maintain a Navy;
14: To make Rules for the Government and Regulation of the land and naval Forces;
15: To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
16: To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
17: To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;—
And
18: To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
The very next section of Article 1, makes it abundantly plain that the power of the Federal Government is limited to the enumerated powers and is not general, and that it is subject to other additional limits even when being used according to a section 8 power:
1: The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.
2: The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.
3: No Bill of Attainder or ex post facto Law shall be passed.
4: No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.
5: No Tax or Duty shall be laid on Articles exported from any State.
6: No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another.
7: No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.
8: No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.
Further there is no mention of the most important portion of sovereignty, the General Police Power. This is made explicit in the 1st through 8th and 10th Amendment:
Article [I] (Amendment 1 – Freedom of expression and religion)
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Article [II] (Amendment 2 – Bearing Arms)
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
Article [III] (Amendment 3 – Quartering Soldiers)
No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
Article [IV] (Amendment 4 – Search and Seizure)
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Article [V] (Amendment 5 – Rights of Persons)
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Article [VI] (Amendment 6 – Rights of Accused in Criminal Prosecutions)
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
Article [VII] (Amendment 7 – Civil Trials)
In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
Article [VIII] (Amendment 8 – Further Guarantees in Criminal Cases)
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Article [X] (Amendment 10 – Reserved Powers)
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.
And the fact that even the States were not to possess an unlimited General Police Power is made clear by the specific limitations on the States found in Article 1, section 10 and Article IV:
Section 10
1: No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.
2: No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it’s inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress.
3: No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.
Article IV (Article 4 – States’ Relations)
Section 1
Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.
Section 2
1: The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.
2: A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.
3: No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.
Section 3
1: New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.
2: The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.
Section 4
The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.
and the text of the 9th Amendment:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
The General Police Power is the power to regulate behavior in general and not with regard to some specific enumerated power. The Federal Government does not have this. The States do, subject only to limits found in their several constitutions, the Articles above, and under the doctrine of incorporation, the Bill of Rights.
So far everything I have discussed has centered around the Article I powers and the limits thereon, since Article I, sets out only the Legislative power and form of Congress, why have I not discussed the Judicial or Executive branch in my discussion of the extent of Federal Authority? Quite simply because, all of the power to initiate action by Government is vested in the Legislative body. The Executive and Judicial branches are concerned with implementing and enforcing laws. The laws that are to guide their actions are meant to come from the Congress. I plan to discuss the other branches further in future pieces, but when talking about the enumeration of powers and limits on their exercise it is the legislative power that is the driver.
So the bulk of Federal Authority is vested in Congress, and that authority is specifically limited by explicit prohibitions on actions, as well as being generally limited to the enumerated powers, but the structure of Congress is in itself another check on Federal authority. The framer’s biggest difficulty in balancing the need to preserve the States as sovereign entities with the need for a centralized authority to make us a Nation in more than name, was in determining how to select and shape the legislature. It was decided to create a bicameral legislature, each body having certain exclusive powers, but both bodies assent being needed to pass general legislation.
This Congress was loosely modeled after the British Parliament, with the House of Representatives serving as the equivalent to the House of Commons, and the Senate an even looser equivalent to the House of Lords.
The House was given the sole authority to initiate the exercise of the power to raise revenue, either by taxation or borrowing, and the power to initiate impeachments of officers of the other branches. The Senate was given the power of advising the Executive on treaties and appointments of officers, and the more significant power of consenting to such treaties and appointments, without which the treaty or appointment fails, and additionally the power of trying impeachments. The assignment of powers reflects the founders view of the House as being the People’s voice in the Government and the Senate being the States’ voice.
The Great Compromise, sometimes called the Connecticut Compromise because Connecticut delegates Roger Sherman and Oliver Ellsworth proposed and fought for it, is what finally brought the framers through the channel between Scylla and Charybdis. It provided that the States would each have two Senators, appointed by the State Legislature and serving a six year term. House terms were deliberately kept short at 2 years in order to try and keep the representatives easily subject to replacement if they acted in opposition to the will of the People.
The general plan was that the House was to be the democratic body and the Senate the more aristocratic. The power of the purse was left to the people (subject to the specific prohibition of Article I section 9:4 which was meant to prevent exactly the sort of “loot the rich” tax schemes we are suffering today), because any money spent was coming from the people. The combination of a ban on direct taxes on any terms except equal payment from each person, with turning the budget over to the popularly elected House was meant to enforce fiscal responsibility. The XVIth amendment broke this system and gave the mob the power to vote themselves largess at the expense of various minority groups, and spending has steadily climbed ever since.
The power of impeachment was also given to the House, but the power of trying impeached officers was given to the Senate. Splitting the power to remove officials between the democratic House and the aristocratic Senate was intended to simultaneously prevent the elites from protecting their own, and to prevent the passions of the mob from removing good officials for not catering to popular demands.
The power of advice and consent was given to the Senate. This was a bit of a compromise intended to give the States, which were surrendering their power to enter treaties to the new Federal Government, input into, and veto power over foreign agreements. The XVIIth amendment broke this compromise and did a great deal of harm to our system in the name of democracy.
Basically the framers set up a Government in shackles. It was capable of decisive action in moments where the various parts of the country were aligned and much more restrained when they were not. Much of our history since has been a series of loosenings of those shackles, for the most part to our detriment.
