POLITICAL PHILOSOPHY OF THE CONSTITUTION

It is a commonplace that the Constitution provides for a limited government, one that depends upon a system of checks and balances. And this in turn is said to reflect a realistic opinion both about the nature of man and about the purposes and risks of government. The general government is limited in that much is left to the states to do, to the extent and in the ways the states choose to act. The very existence of the states and many of the things they do are taken for granted; they do not depend upon the Constitution. Even the states formed pursuant to the Constitution automatically assumed, upon admission to the Union, virtually all of the prerogatives (or states ' rights) of the original thirteen, including the status of being largely independent of the other states and in many respects independent of the general government.

The states play vital parts in the periodic choices of United States senators, representatives, and presidential electors. Otherwise, the Constitution, once ratified, depends upon the states for relatively few things in order to permit the general government to function within its appointed sphere. Various restrictions are placed upon the states, primarily with a view to preventing interferences by them with the proper activities of the general government. In addition, the states are obliged by the Constitution to respect various legal determinations in other states. But, by and large, the states are left fairly autonomous, however republican they are required and helped to be under the Constitution. (Although the civil war and its reconstruction amendments had effects upon the original constitutional dispensation, these amendments are consistent with, if not the natural culmination of, the initial dedication of the Constitution to liberty and equality.)

The general government is limited in still another critical respect by the separation of powers, which makes the Constitution seem far less simple than it really is. Virtually everything that may be done by any branch of that government must take account, if it does not require the immediate cooperation, of the other two branches. Thus, Congress can enact laws alone, but it is easier to do so in collaboration with the President; how the judges will understand and how the President will execute these laws must be anticipated. The President alone commands the armed forces, but what those forces consist of and how they are equipped depends on congressional provisions, as does the very declaration of the wars in which such forces may be used. The judges interpret and apply laws, but, apart from the Supreme Court, all courts of the general government depend for their jurisdiction and for their very existence upon the Congress, and for the execution of their decrees upon the President. Many other such interdependencies are evident.

We can even see in the references to divinity in the declaration of independence an oblique anticipation of the qualified separation of powers found in the Constitution itself. There are four references of this kind in the Declaration. The first reference to God, and perhaps the second as well, regarded God as legislator; it is He that orders things, ordaining what is to be. That is, He first comes to sight as lawgiver or lawmaker. Next, God is seen as judge. Finally, He is revealed as executive, as One Who extends protection, enforcing the laws that have been laid down (with a suggestion as well of the dispensing power of the executive). Thus, the authors of the Declaration portrayed even the government of the world in the light of their political principles.

The constitutional dispersal of powers (between state and general governments, among branches of the general government, and between congressional houses with quite different constituencies) testifies to the recognition that those who wield power have to be watched, and perhaps shackled or at least hobbled. This understanding may be seen also in the ways the people discipline themselves, agreeing to proceed in accordance with constitutional forms. Such precautions make sense, however, only if there is indeed a considerable power to be exercised.

Preeminent among the powers of the general government are those that must be exercised countrywide if they are to be used effectively. These include the plenary (but not necessarily exclusive) powers of the general government with respect to commerce "among the several States," taxes, "the common defense," and international relations, all of which are reinforced by the necessary and proper clause. And so there has been no need for a "living" Constitution to "grow," except perhaps to grow out of the artificial limitations imposed by those periodic misinterpretations of the Constitution that have failed to appreciate the full extent of the powers intended to be vested in the general government.

Here and there the Constitution restricts the exercise of the plenary powers conferred upon the general government—but those restraints tend to be "procedural." "Substantive" restraints upon such powers would be unreasonable should they have to be employed in unpredictable but grave circumstances. The Constitution assumes the prudence of those who wield power. Thus, for example, no matter how the tax power is hedged in, Congress can still so use its discretion here as to ruin the country.

The prudence relied upon is to be directed to the advancement of the goals enumerated in the Preamble. There are elsewhere in the Constitution further indications of what is taken for granted as legitimate ends of government, such as in references to "the Progress of Science and useful Arts," to "public safety," to the control of "disorderly Behaviour," to a "Republican Form of Government," and to "the Law of Nations." And, of course, the Declaration of Independence states in an authoritative manner the enduring ends of American government rooted in the inalienable rights of men.

That the Declaration of Independence is taken for granted is evident even in the way the Constitution is dated: "in the Year of our Lord one thousand seven hundred and Eighty seven and of the Independence of the United States of America the Twelfth." It seems to be taken for granted as well that the prudence relied upon both in the Declaration and in the Constitution is generally to be promoted by free discussion of public issues, however salutary a temporary secrecy may be on occasion. Such discussion is presupposed by the relations of the various branches of government to one another and by what they say to each other. Thus, judges deliberate and set forth their conclusions in published opinions; the President, in exercising his veto power, is to give "his Objections," which objections are to be considered by Congress; the members of Congress are protected in their exercise of freedom of speech as legislators. A continental freedom of speech and freedom of the press were presupposed as well, even before the ratification of the first amendment, by the repeated indications in the Constitution of 1787 that it is an ultimately sovereign people who establish and continually assess the government.

the sovereignty of the people is central to the constitutional system, moderated though the people's control may be by the use of representatives and by indirect selections of various officers of government. Each of the seven articles of the original Constitution, including the judiciary article, testifies to the understanding that the people are ultimately to have their way, however carefully they have disciplined themselves in restricting the manner in which they insist upon having their way. The people are sovereign, and for good reasons: it is a government designed for their happiness; they themselves have ordained it and are to support it. Besides, no one else is obviously better qualified to decide what is in the best interests of the country.

An essential equality among people is indicated in various ways, including in the equal status of the states and in the freedom of citizens to move among the states. Majority rule is taken for granted again and again. No male-female or rich-poor distinction is recognized. The Constitution does not even recognize an intrinsic difference among the races, however much grudging accommodation there may have had to be to existing slavery institutions. And, of course, no government in the United States may grant titles of nobility.

To defer to the genuine sovereignty of the people is to submit, in effect, to that rule of law contemplated by magna carta. It is only through law that a people, in their political capacity, can truly speak or be spoken to. Dependence upon the rule of law points to legislative supremacy, which is indicated again and again in the Constitution, not least in its impeachment provisions. It is peculiar, then, that we rely as much as we now do on judicial review—that is, on the duty of courts to assess congressional enactments for their constitutionality. Of course, this duty, too, can be put in terms of respect for the rule of law. But it is difficult to find in the text of the Constitution any provision for judicial review or even any indication that it was ever anticipated by the Framers. In fact, the care with which the President's veto (the executive counterpart to judicial review) is established argues against the opinion that judges are intended by the Constitution to examine formally sufficient acts of Congress for their constitutionality, except perhaps whenever the prerogatives of the courts themselves are immediately threatened. What does seem to be anticipated by the Constitution is an even more considerable power for judges than judicial review seems to offer, but one which the appellate courts of the general government have largely surrendered. This is their indirect but nevertheless critical power of supervising the common law (and hence the moral sensibilities) of the country, subject to whatever regulations legislatures may choose to provide. In any event, these courts are entitled, perhaps even obliged, to interpret acts of Congress in accordance with the Constitution, proceeding in each case before them on the reasonable assumption (until Congress clearly indicates otherwise) that nothing unconstitutional or unjust is intended.

In the American constitutional system, both the rule of law and an ultimate dependence upon the sovereignty of the people mean that property is to be respected. (And this respect probably implies, considering the evident commercial presuppositions of the Constitution, that economic interests are to be advanced.) Respect for property is the private counterpart to that political deference to the public seen in genuine republican government. The protections of property in the third, fourth, fifth, seventh, and eigth amendments draw upon a principle that is already evident in the original Constitution.

Deference to the public, and to republicanism, also takes the form of a concern for "the Blessings of Liberty." That a considerable liberty is taken for granted by the Constitution may be seen in its assurances with respect to habeas corpus, to bills of attainder, to the crime of treason, to religious tests, and to " Indictment, Trial, Judgment and Punishment, according to Law." It may be seen as well in the spirit of liberty which pervades the governmental system, making much of a people's freely choosing what they will have done for them, by whom, and upon what terms.

But however much liberty, property, and equality are to be respected, there is no question under the Constitution but that there should be effective governance, and governance with respect to the most important matters facing the country as a whole. However "limited" the exercise of power may be, primarily because of the different parts played by the three branches of the general government and by the states, great powers do exist for the general government to exercise. In any extended contest, the Constitution assumes that a determined Congress can have its way both with the President and with the courts. The Constitution was itself fashioned by a deliberative body which resembles much more the Congress than it does either the presidency or the judiciary. In the very nature of things, lawmaking (whether entrusted to one hand or to many) is at the heart of sovereignty, providing the necessary mandates for those who either interpret or execute the laws.

Lawmaking may be seen as well in what the people at large in their sovereign capacity have done in "ordain[ing] and establish[ing] this Constitution." Thus, the preeminence of lawmaking may be seen not only in what the constitutional convention did in drafting the Constitution but even more in what the people did in the ratification of the constitution. The provision of a workable amending process also presupposes that the people retain their ultimate authority—and that standards exist by which they may examine and modify constitutional arrangements from time to time.

The Framers of the Constitution applied those standards, set forth in the Declaration of Independence, to the needs and opportunities of their day. Such standards were understood to be rooted in nature. The American people considered themselves sanctified by Providence, or at least peculiarly fitted because of their experiences and circumstances, to discern and to follow the guidance of nature. Americans looked to political philosophers and other students of law and government for help in their recourse to nature—and they invoked with confidence writers from Plato and Aristotle to John Locke and Adam Smith. But none of these writers was authoritative; all of them could be exploited, along with the considerable historical record (sacred and profane, ancient and modern) repeatedly drawn upon in debate. The diversity of the many sources casually, if not cavalierly, put to use by the Framers suggests that the astute political thought of eighteenth-century Americans was, in certain respects, distinctive to them. They were eminently practical and yet high-minded constitutionalists who seemed willing to leave many private concerns, and vital personal virtues, to the ministrations of local government and of common-law judges (as well as to church and family), while they entrusted the government of the United States both with the general welfare (including the economy of the country) and with external affairs (including the common defense).

However extensive and even awesome those governmental powers may be, the powers retained by the people to revise whatever is done by government in their name remain even greater. The ultimate sovereignty of the people may be seen not only in the constitutional provision for amendments but also in that natural right of revolution vigorously relied upon in the Declaration of Independence.

Intrinsic to the political philosophy of the Constitution is the recognition that a bad law may still be constitutional, and hence that the political must be distinguished from the legal (or judicial). This understanding means that in order for the constitutional government empowered by the people (as well as for the all-powerful people themselves) to contribute to the common good in a regular and enduring manner, there must be constant and informed recourse by Americans (citizens and public servants alike) to the instructive dictates of prudence.

George Anastaplo
(1986)

Bibliography

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