The governmental system of the United States can be described generally as a constitutional democracy, with unique features reflecting both the nation's European heritage and the specialized conditions of political life in the New World.
The two master ideas of American constitutionalism—the notion of a government deriving its powers from the consent of the governed and the concept that those powers are subject to prescribed limitations—are almost as old as Western civilization itself. Aristotle's Politics, written in the 4th century B.C., was essentially an attempt to synthesize these twin ideals, and both doctrines survived in political thought, if not in practice, during the Middle Ages.
The colonists who began to people the eastern coast of North America during the 17th century brought with them, therefore, a tradition that provided the bedrock for the complicated structure of American government of modern times. However, modification of the tradition began almost at once under the impact of New World circumstances. During the period from the founding of the first colonies to the framing of the United States Constitution in 1787, there evolved a set of attitudes that were in many ways inimitably American.
Popular Consent. The doctrine of popular consent was gaining strength in Europe during much of this time under the stimulus of such economic developments as the rise of industrial capitalism, such political occurrences as the Puritan Revolution in England, and such ideological events as the publication of John Locke's Second Treatise on Civil Government in 1690 and of Jean Jacques Rousseau's Social Contract in 1762. In the Old World the doctrine had to make its way against an already established social system. In the American colonies, on the other hand, the idea took quick root and flourished, largely, perhaps, because the way of life in these frontier communities came nearer to the conditions of a free " state of nature" envisioned by Locke and Rousseau. The basing of a political order on the consent of the governed, a radically revolutionary concept in England and on the Continent, seemed almost a matter of course to many Americans who could see the principle in operation wherever they turned. The consequence was that the colonists embraced the idea readily and wholeheartedly when the events leading to the Declaration of Independence in 1776 gave them cause to question the justification for British rule.
Limitations by Law. During the same time, however, America was also carrying to new lengths the old idea that government, even popular government, must be confined within prescribed limits by the rule of law. The dogma that not even Parliament could pass an act contrary to the fundamental law had been advanced by the great English legalist Sir Edward Coke in the 17th century. But in the course of the 18th century the supremacy of Parliament became so firmly established that no British lawyer could any longer defend Coke's dictum insofar as the motherland was concerned.
In the colonies, on the other hand, the doctrine survived and was invoked repeatedly in the polemics that preceded the Revolution. The idea of "natural rights" which no government could justly infringe was widely accepted as a moral limitation on government both in England and America. The colonists contended that it was a legal limit as well. On Feb. 24, 1761, for example, James Otis attacked the "writs of assistance" (by which the British Court of Exchequer had authorized a general search of colonists' premises), arguing that they contravened the British Constitution and were therefore void. And similar appeals to the organic law were made at each succeeding stage of the Revolutionary controversy. This notion of a government with definably limited powers was, of course, reinforced by the fact that the colonials objected to parliamentary acts regulating their internal, and especially their economic, affairs. Americans learned to associate government action, particularly of a central government, with the depredations of the king and Parliament. As a consequence, they developed a healthy distrust of any political system in which the powers of the government were not strictly confined.
Adequate Government Power. These two preconceptions, then, were deeply embedded in American political thinking at the time the constitutional system was framed. Meanwhile, however, experience under the Articles of Confederation, which had become effective on March 1, 1781, had taught the colonists another lesson—that the powers of a government, even though limited, must nevertheless be adequate to its purposes. The articles had brought the states together in what was little more than a loose alliance, and certain important powers were denied to the central government. It could not regulate commerce among the states; it could not lay taxes by its own authority; and it could not act directly on the people but, rather, through the governments of the individual states. Although a large number of Americans were satisfied with this state of affairs, another group regarded these defects of power as disastrous and urged establishment of a truly national government endowed with broad authority.
The latter group finally prevailed, and the union framed by the Constitutional Convention in 1787 and ratified by the required ninth state, New Hampshire, in June 1788 had far more extensive powers than its predecessor. To the now traditional and essentially libertarian principles of popular consent and prescribed limitations had been added a third, practical doctrine: the government must be strong enough to perform its tasks and must possess "sovereignty." On these three precepts rested the political system of the new republic. The major characteristics of American government can be traced back to their origin in one or more of these primary ideas.
Perhaps the most impressive single characteristic of the political system that began to operate on March 4, 1789, was the relationship established between the individual states and the central government. In order to ensure an effective polity, it seemed essential to the majority of the convention delegates that the central government be given the power to take action in matters of national concern, even to the extent of acting directly on individuals rather than through the medium of the states. At the same time, the delegates knew that the state governments were very jealous of their autonomy and that the people of the nation cherished the principle of states' rights as their best protection against encroaching government.
Federalism as a Compromise. The solution worked out was a compromise between the idea of nationalism, represented by such men as Alexander Hamilton of New York, and the idea of confederation advocated by such men as William Paterson of New Jersey. The new government was granted the power to act directly on individuals, a power that had been lacking under the Articles of Confederation. This innovation was both enormously significant and historically unique. It meant that the central government was no longer compelled to come, cap in hand, to the states when it sought to deal with a matter of national concern. Never before had the central government of a federal system been granted such an authority. But on the other hand, care was taken to guarantee that the states would maintain their identities and their power over local affairs. The result was, as James Madison stated in Number 39 of The Federalist, that the new Constitution of the United States was designed to be "neither a national nor a federal Constitution [federal here being used in the sense of confederate] but a composition of both."
The coexistence of the states was safeguarded by the adoption of the principle that the national government could exercise only those powers specifically granted to it (the so-called principle of " delegated powers"). The fields of congressional authority were enumerated in Article I, and it was assumed that this listing precluded Congress from invading any other sphere under the well-established legal maxim expressio unius est exclusio alterius (the expression of one thing is the exclusion of another). However, in order to avoid any question concerning the matter, the 10th Amendment, ratified together with the other nine provisions of the Bill of Rights in November 1791, provided explicitly that "the powers not delegated to the United States, nor prohibited by it to the States, are reserved to the States respectively, or to the people." It was hoped that adherence to this principle would make it impossible for the national government to encroach on the "sovereignty" of the states and the liberties of the citizens.
National Powers and State Functions. But the matter was too complicated to be solved by the application of any single formula. Even though the Congress was limited to the enumerated powers, the fact remained that those powers were very important ones and were described in broad terms in the constitutional instrument. Article I, section 8 for example, grants Congress the authority to "regulate Commerce with foreign Nations, and among the several States," to lay taxes "to pay the debts and provide for the common Defence and general Welfare of the United States," and to raise and support armies and navies. As subsequent history showed, these three powers alone, if broadly construed, would be almost enough to form the basis for a potent national government. Moreover, the Constitution went on to provide in the same section that the Congress might make all laws " which shall be necessary and proper" for carrying out the delegated powers. This famous "elastic clause" opened up wide legislative possibilities to the national government.
Finally, Article VI stated that the Constitution and the laws made in pursuance of it by the Congress were to be "the supreme law of the land," taking unquestioned precedence over all state legislation. This clause has been called "the linchpin of the Constitution," and it was undoubtedly a provision necessary to the establishment of the United States as a nation. When the broad, enumerated powers were construed in the light of the "elastic clause" and supported by " the national supremacy clause," it appeared to many that the states were threatened with extinction.
This dire prophecy was never fulfilled, and the states have continued as important entities performing many vital functions. While in constitutional theory it may be possible for national authority to override state authority in almost any area, a significant degree of state autonomy is ensured by the power of the states to defend themselves politically. For example, both Congress and the party system have their roots in local ground. The line of relationship between the nation and the states has wavered from time to time, but the main idea—that of a "mixed" national and federal system—has been maintained.
Commerce, Elastic, and Supremacy Clauses. The Supreme Court, under the administration (1801–1835) of the great chief justice John Marshall, gave the cause of nationalism powerful impetus through decisions involving the commerce clause, the elastic clause, and the supremacy clause. In the celebrated case of Gibbons v. Ogden (1824), Marshall construed very broadly the congressional power to regulate commerce, held that the states must keep out of commercial affairs when Congress has acted in the field, and came very near to holding that the states were precluded from dealing with matters of interstate commerce even if Congress had not yet exercised its authority to deal with the commerce in question.
In the equally significant case of McCulloch v. Maryland (1819), Marshall constitutionally settled the question of whether the elastic clause really added substantially to Congress' enumerated powers. It had been argued by Thomas Jefferson, among others, that the terms " necessary and proper" limited Congress to passing laws that were absolutely essential to the execution of a power specifically granted. But this " strict constructionist" view of the implied powers was rejected by Marshall, who held that Congress was licensed to enact any legislation which was "convenient and appropriate" to carrying out its delegated authority. This greatly enhanced view of the national government's scope has been the rule of law ever since.
Finally, in a series of cases of which Martin v. Hunter's Lessee (1816) is perhaps the best example, the Marshall court held that the supremacy clause does mean that national laws override state laws when the former have been passed legitimately, that is, in pursuance of the Constitution.
Establishment of the Federal Government's Supremacy. Although the nationalistic tenor of these decisions is unmistakable, it would be an error to suppose that they solved the problem of conflict between the exponents of central control and the advocates of states' rights. In fact, this problem of the nature of the Union could not be decided conclusively by any court. The question was one of political power and had to be settled on that basis. Even during Marshall's incumbency it was apparent that the nationalism of the Supreme Court under his leadership was to some extent counterbalanced by the contrary political temper of the people. This states'-rights tendency was given voice during the chief justiceship (1836–1864) of Roger B. Taney, whose court was somewhat more sympathetic to the trend than that of Marshall had been. It is not true, however, that the Taney court was as partial to the cause of localism as some historians have claimed.
It was the Northern victory in the Civil War that called a halt to this centrifugal movement and supplied a partial answer, conclusive insofar as it went, to the problem of national-state relationships. The war established beyond any serious question that the American republic was, as the court said in Texas v. White (1869), "an indestructible Union, composed of indestructible States." It was also clear that no state could flout the legitimately exercised authority of the national government or could nullify its acts. But this is only to say that the more extreme positions adopted by the states'-rights school were no longer tenable. The victorious Northerners did not swing the pendulum all the way in the other direction, as some of their leaders would have preferred, thereby reducing the states to the level of mere administrative areas. The states remained significant units of government, with the result that the problem of maintaining the delicate constitutional balance of American federalism still remained.
If some important exceptions are noted, it can be said that modern constitutional doctrine on the question of nation-state relations has followed the principle established by Marshall. His construction of the supremacy clause has not been seriously questioned since the Civil War, and it is now axiomatic that a state law must fall if it comes in conflict with a federal statute or treaty. It is also fair to say that the Supreme Court's supervisory authority over state laws and tribunals has become accepted as the dominant constitutional doctrine. In the 1950s the court tightened its control in certain areas, and this led to a renascence of state protest. Court decisions in the 1960s holding the states to a national standard in such fields as criminal procedures and asserting the power to scrutinize legislative reapportionment arrangements added fuel to this protest. But the chief factor was a series of decisions challenging state policies of discrimination against blacks in the South. These developments revived old claims that the states can nullify Supreme Court mandates, but such claims have no legal basis. Thus the power that Marshall prescribed for the court remained essentially unimpaired.
Expansion of the Commerce Power. Finally, Marshall's pronouncements on the commerce clause have been powerful and enduring precedents, although the pressure of shifting events has modified their force at certain times. Essentially, as indicated, Marshall's decisions on the commerce clause involved two great questions. The first was the issue of how the commerce clause restricted the power of the states to pass their own regulations governing interstate commerce insofar as it touched on their affairs. Marshall probably would have preferred to forbid the states any such regulatory power. His opponents wanted the states to have full power to legislate in commercial affairs unless a conflicting national law could be found. The controversy was resolved by a compromise some years after Marshall's death. In Cooley v. The Board of Wardens (1851) the court held that the states could regulate commercial matters that did not, by their nature, require a uniform national rule. On the other hand, if the matter were clearly national in character, the states must keep their hands off. This Cooley principle of "selective exclusiveness" has been the starting point for constitutional decision on the subject ever since.
The second and even more important point at issue in the interpretation of the commerce clause was the question of how broad the national government's power to regulate commerce might be. Did the clause mean that Congress could genuinely control the commercial life of the nation, or was the national government by implication limited to a narrower scope? Marshall characteristically construed the clause very broadly. It grants, he said, the power "to prescribe the rule by which commerce is to be governed. This power is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution. " It would be hard to frame a more generously nationalistic interpretation, but for some time this part of the decision was of limited practical importance, because Congress had little occasion to avail itself of the extensive power over economic affairs that these dicta implied.
However, in the years following the Civil War, the United States began to evolve at a rapid pace into a modern industrial nation, and the great industries spread their activities far beyond state lines. In order to cope with the problems posed by this nationwide commercial and industrial activity, Congress began to pass national regulatory measures of various sorts, and Marshall's view of the commerce power was given practical application. For a time—during the era extending roughly from the Sugar Trust Case (U.S. v. E. C. Knight Co.) in 1895 until 1937—the Supreme Court showed some tendency to dilute the Marshallian principles. It held, on occasion, that Congress could not exercise its interstate commercial power in such a way as to encroach on intrastate commerce, which was a field of control reserved to the states. Nor, said the court, was Congress justified in prohibiting whatever kinds of commerce seemed obnoxious to it.
These holdings may undoubtedly be attributed to a feeling among the judges that too much regulation was bad for business and therefore bad for the nation. This feeling helped for some years to shape judicial interpretation of other constitutional clauses, such as the "due process " clause and the clauses relating to taxation. This judicial spirit was sharply tested, however, in the 1930s by the Depression and by the New Deal policies of Franklin D. Roosevelt. The court ultimately bowed to that challenge, and we can now see that the late 1930s produced the most abrupt and far-reaching "constitutional revolution" in the nation's history. One by one and with surprising celerity, the negative, probusiness doctrines of the Supreme Court were repudiated by that court itself, and it quickly became accepted that the welfare state—whatever else might be said for or against it—was constitutionally permissible.
This revolution was particularly striking in the commerce field. A succession of judgments upholding New Deal legislation outlined a view of the commerce clause that made it a tremendously potent weapon for national economic control. Congress was granted the right, under its authority, to regulate interstate commercial activities on any terms it chose. Even the regulation of seemingly local affairs was justified—insofar as the Constitution was concerned—on the ground that local business activities might affect interstate commerce and thus require national control. The 10th Amendment, which had once been invoked against such legislation, was declared to be a mere truism: if Congress possessed a power, it could be exercised without stint, in spite of the contrary claims of the states.
It might seem at first glance that these interpretations nearly obliterate state power in the commercial field and to that extent convert the United States into a national rather than a federal system. But, in practice, a wide range of important economic activities is left to state control, inasmuch as Congress has not exercised the full extent of its constitutional authority. The doctrines described simply mean that Congress has the legal power to frame a national economic policy that will meet changing situations. The doctrines further mean that Congress may, if it chooses, use the commerce power to regulate matters that are related to economic activity. How far Congress will go depends on the facts of political life.
Other Important National Powers. The national authority to lay taxes has also been defined variously at different stages of the nation's history and has presented several thorny problems for constitutional determination. One issue of great historical importance was whether Congress was authorized to lay taxes on incomes. In 1895 the Supreme Court held that such levies were "direct taxes," forbidden by Article I, sections 2 and 9, unless laid in proportion to the population of each state. But in 1913 this decision was nullified by passage of the 16th Amendment, and Congress was given the power to tax incomes without apportioning the burden.
Another question requiring a court decision involved the national government's right to use the tax power for regulatory rather than revenue-yielding purposes. Some regulatory levies were struck down as exceeding Congress' delegated power and encroaching on the reserved rights of the states. But in this field, as in the commerce field, the trend to limit national authority was reversed in 1937. The general rule adopted was that Congress could use the tax power "to provide for the general welfare, "and this meant in effect that such power had become a very broad and flexible instrument for national control, complementing and implementing the other delegated powers.
The "war power" is implemented and regulated by various constitutional provisions, but these are not its source because the power to wage war is regarded as inherent in any sovereign nation whether or not the authority was granted by any specific clause. No real attempt has ever been made to define the limits of this power in any detailed sense, but it is clear that Congress can go very far if military necessity seems to require it, and certain presidents have claimed extensive discretionary authority under the clause of Article II, section 2, which makes the president commander in chief of the armed forces. In 1973, Congress passed a law, over President Nixon's veto, limiting to 60 days presidential use, without its approval, of armed forces in foreign combat.
These matters remain, and perhaps should remain, in the penumbra of unsettled constitutional problems. The nation has not yet been forced to meet squarely the question once posed by President Lincoln: what is to happen if a choice must be made between preserving the Constitution on the one hand and preserving the nation on the other?
The organizational form of the central government established by the Constitution was, like the federal system itself, based on a compromise between the need for an effective national government and the desire to prevent that government from becoming so strong as to infringe upon the rights of the governed.
Separation of Powers and Checks and Balances. The Constitution created three major branches of government—the legislative, executive, and judicial—and by implication forbade that the powers of each be exercised by any of the others. This tripartite division of function with "separation of powers" and "checks and balances" was an old principle extolled in one form or another by political philosophers from Polybius in the 2d century B.C. to John Locke, Montesquieu, and John Adams in the modern era. The idea was that each branch of government would act as a check on the other two and that the government itself would therefore be prevented from developing enough strength and singleness of purpose to exercise a tyranny. But the popularity of the doctrine in America can be traced, not so much to the abstractions of the theorists as to the concrete experiences of the colonists during the years that preceded the separation from Britain. The governors of the colonies were, in general, nominated by the crown, while the legislative bodies were chosen by the people. It therefore became traditional to regard the separation of their functions as of the essence of liberty.
In the American Constitution the separation of powers was supposed to be assured by providing a different method for choosing each branch and by arming each department with the means for checking the encroachments of the others. Congress was regarded as naturally the most potent branch and was therefore subdivided within itself by the establishment of two houses—on the principle of "bicameralism." In the original Constitution, the House of Representatives was chosen by those in each state who were qualified to vote for "the most numerous branch of the State legislature," and the Senate was chosen by the state legislatures themselves. But the 17th Amendment, ratified in 1913, provided that senators, like representatives, were to be popularly elected. Even though the two houses are now chosen similarly, there is enough division of interest between them so that each often operates as a check on the other. All laws must, of course, receive the approval of both, and this duality of decision often prevents extremism.
The president and the vice president were originally supposed to be chosen in a process of free decision by the members of the electoral college, who were in turn to be designated by whatever means the state legislatures might prefer. In practice, the members of the college have almost invariably regarded themselves as mere agents of the voters and have cast their ballots in accordance with the popular vote within their states. But they are not constitutionally required to do so, and from time to time there have been movements, thus far abortive, to persuade a group of electors to threaten a "free vote" and thus to bargain for concessions from a presidential candidate.
Finally, the federal judiciary, including the Supreme Court, was to be chosen by the president, with the approval of the Senate, and it was provided that the judges were to hold office "during good behavior. "
The checks and balances between the three branches were rather elaborate. In the lawmaking process, the president held a check over Congress through presidential veto power, which could be overridden only by a two-thirds vote in both houses. The Senate could check the president in certain ways, because its majority vote was required for approval of any appointments the chief executive made and because no treaty made by the executive could become law unless approved by a two-thirds vote of the Senate. Only Congress could initiate legislation, although the Constitution authorized the president, when necessary, to recommend legislation. Finally, the federal judiciary was able to protect itself against both other branches of the government by its power to hold laws unconstitutional (a power not clearly set forth in the Constitution but early established by inference).
In practice, the separation of powers has not worked quite so effectively as this formal description might suggest. The great regulatory tasks imposed on government by modern society have made it necessary for Congress to delegate much of its legislative power to the executive or to certain "independent regulatory agencies" that are regarded as "quasi-legislative." Such modifications of the principle of separation of powers have usually been approved by the Supreme Court. Moreover, a strong president, as head of his or her party, can sometimes control Congress very effectively. But the principle of separation nevertheless remains an American political ideal, and there is no doubt that it has from time to time produced the result the framers intended—a slowing down and an enforced deliberation in the lawmaking process. Whether this result is for better or for worse is a question much debated among political scientists.
Limitations on Governmental Power. The American prejudice against arbitrary government is reflected not only in the principle of federalism and the principle of separate powers but also in certain specific restrictions in the body of the Constitution and in its amendments. From this point of view the most important sections of the documents are sections 8 and 9 of Article I, the first 8 amendments, and amendments 13, 14, and 15. One of the most serious criticisms of the proposed Constitution during the ratification controversy was the objection that it contained no Bill of Rights; the first 8 of the 10 amendments added in 1791 supply this deficiency. Amendments 13, 14, and 15 were products of the Civil War and were ratified in 1865, 1868, and 1870, respectively. The restrictions, whether found in the body of the Constitution or in the amendments, can be conveniently considered under three headings.
Protection of Property. Not the least significant of the sentiments motivating the framers of the Constitution was a great respect for property rights and a conviction that property had been inadequately protected under the Articles of Confederation. They therefore forbade the states to set up economic restrictions on interstate commerce in the form of import or export duties without the consent of Congress, and in general they prohibited the states from pursuing a policy of economic isolation to the detriment of business as a whole (Article I, section 10). The states and the national government were both denied the power to pass " ex post facto laws," and apparently it was assumed that this provision would prevent the government from disturbing existing property relationships, inasmuch as, literally speaking, an ex post facto law is one that alters rights that have existed in the past. But in 1798 the Supreme Court held that the clause applied only to criminal legislation of this retroactive character, and therefore the utility of the provision as a safeguard of property rights was destroyed.
However, the clause in Article I, section 10, forbidding the states from "impairing the obligation of contracts," came to be used to accomplish much the same purpose, because it was held that this made inviolable not only contracts between individuals but "contracts" between the state and an individual, including corporate charters. This meant that a charter once granted to a business by law could not be revoked except under very special circumstances. The result was to stimulate greatly the growth of corporate enterprise in the early 19th century.
Under modern conditions the contract clause is less important than in the past, because it has been held that a state cannot bargain away its power to provide for the health and welfare of its citizens. If a state has "reasonable" grounds for believing that a certain law is necessary, it may be passed even though it incidentally impairs the obligation of contracts.
For many years, the great sources of constitutional protection of property were the "equal protection of the laws" clause in the 14th Amendment and the "due process" clause contained in both the 5th and 14th amendments. The 5th Amendment, like all the first eight, was passed to restrict Congress alone and had no application to the states. But the 14th Amendment applied to the states specifically, and the two amendments together became, in the latter part of the 19th century, a great charter of economic freedom for the business interests of the country. The clause providing "equal protection of the laws" prohibited the states from passing laws that imposed restrictions on one kind of business without similarly restricting others. The "due process" clause prevented both the states and the national government from enacting legislation "unreasonably" interfering with the businesspeople's freedom to carry on their affairs, the term "unreasonably" being defined by the Supreme Court.
In practice this often meant that laws would be regarded as unreasonable if they did not accord with conventional prejudices concerning competition and free enterprise, and the due-process clause was used to strike down such acts as those prohibiting certain kinds of contracts and those establishing maximum hours and a minimum wage. For a long time, under the protection of these clauses, business enjoyed a degree of protection from government that was not found in other countries. But with the coming of the Depression in the 1930s and the "court revolution" in 1937, these doctrines were almost entirely abandoned. Economic regulations of very broad scope were upheld against the charge that they violated the due-process or equal-protection clauses, and it became apparent that business was subject to close government control if the state and national legislatures chose to exercise their constitutional power.
Procedural Rights of Arrest and Trial. The Constitution, together with the first eight amendments, also embodied certain procedural rights that history had taught the framers to respect. Among the most important of these was the right to "habeas corpus, " the right to be free from "unreasonable search and seizure," and the right to a fair trial. The right of habeas corpus was traditional in Anglo-American law, and the Constitution simply provides that it shall not be suspended except when the public safety may require it. There is some controversy concerning what the conditions are that justify its suspension and who may suspend it (the president or Congress) when those conditions do exist.
The other procedural rights (those pertaining to arrest and trial) were originally guaranteed only against the national government. The states were left free to make their own rules in these matters. However, in the 1920s the Supreme Court began to hold that through the 14th Amendment some of these privileges were also protected against state action. The Constitution therefore took on new significance for those accused of state crimes, although the standard of procedure imposed on the federal government was still stricter than that prescribed for the states.
In the 1960s the Supreme Court displayed a tendency to narrow this difference. For example, it had once held that state courts could admit illegally seized evidence (for example, evidence obtained without a warrant) and could deny an indigent person's request to have a lawyer engaged on his or her behalf, although the rule for federal courts was, in both cases, quite the opposite. But in Mapp v. Ohio (1961) and Gideon v. Wainwright (1963) these rulings were respectively reversed, and in a number of other cases state courts were held to a progressively more rigorous standard. In 1968 the court extended the requirement of trial by jury to the states, except for petty crimes. But important variations in trial procedures remained: indictment by grand jury is required in the nation's courts but not in those of the states; and "double jeopardy" is forbidden in federal criminal proceedings, while some forms of it seem to be permissible in the states. The general principle is still that only the more "fundamental " procedural rights must be preserved throughout the Union, but the court seems to be extending its list of rights that are fundamental and thus to be protected against both national and state abridgment.
Rights of Free Conscience and Expression. The 1st Amendment was intended to prohibit Congress from infringing on the liberty of speech, press, and assembly, and from interfering with religious freedom either directly or by the establishment of a national church. These rights were and have been regarded as the most essential to preserve against governmental encroachment, because the framers believed that only people free to speak and worship as they pleased could carry on a successful republican government.
This being true, it may appear strange that the Constitution did not originally protect these rights against state action, but the framers seem to have believed that the greatest danger of tyranny was to be anticipated from the distant central government. In any case, the due-process clause of the 14th Amendment was ultimately employed to alter this initial intention, and since 1925 it has been clear that neither the state nor the nation can invade these rights arbitrarily.
With respect to these freedoms, however, serious problems of definition still remain. Few have ever contended that freedom of speech, press, and assembly were absolute and that the legislature could never set limits on free expression. Libelous speech is clearly punishable, and, as Justice Oliver Wendell Holmes once said, freedom of speech would not justify a person prankishly shouting "Fire!" in a crowded theater. In these fields, then, the problem has been to determine what kinds of expression can be constitutionally prohibited and what kinds cannot.
The beginning of an answer to this question was offered by Justice Holmes in Schenck v. United States (1919) when he said that speech could be punished only when it created "a clear and present danger" of bringing about an evil result. This concept, further developed by Holmes and Justice Louis D. Brandeis in later decisions, was seized upon by the court of the 1940s as a general guideline. But the problem of Communist subversion after World War II shook the court, as it shook the nation, and in the 1950s the doctrine of clear and present danger was dropped almost entirely from the judicial vocabulary. A partial and perhaps temporary substitute for it became the "balancing test," in which the judges weighed the value of the right claimed against the community's interest in abridging it, and decided which overbalanced the other. This is obviously another way of saying that speech can be forbidden when the legislature and the judiciary think it is desirable to do so. Some justices, notably Hugo Black, have argued for a much more stringent limitation on state power. But so far no such limit has been adopted, and the problem of drawing a line between legitimate speech and speech that may be forbidden remains one of the great unsolved problems of American constitutional law.
The religious clauses of the amendment have presented similar difficulties. Certainly people are protected in the right to worship the God they choose, or not to worship at all if they prefer. But problems sometimes arise when people try not only to worship but to act as their religious conscience may dictate. Suppose a person's religious faith requires that they refuse to bear arms in the country's service or that adherents practice polygamy. Does the person's religious freedom protect him or her in the right to engage in such behavior? No complete constitutional answer has been found for such questions, although it is clear that religious beliefs cannot warrant people committing any acts they may choose. Finally the clause forbidding "an establishment of religion " has been interpreted to prohibit the states from using tax money or tax-supported facilities to aid religion in any form, including religious education. In 1962 and 1963 it was applied to forbid officially prescribed prayers and ritualistic Bible-reading in the public schools. It is uncertain where the line will ultimately be drawn between forbidden and permitted church-state relationships.
Protection of Ethnic Minorities. The Civil War amendments (13, 14, and 15) were expected by those who passed them to protect the rights of the newly freed blacks, but for many years the protections they afforded were minimal. Amendment 13, which abolishes " involuntary servitude," did of course destroy the legal basis for chattel slavery. But the "equal protection" clause of Amendment 14 and the prohibition of the 15th Amendment against racial discrimination in the election process were interpreted so flexibly that discriminatory state policies were easy to devise for those who wished to do so. For example, the 14th Amendment was construed to permit states to segregate blacks from whites in such public facilities as schools and parks. The 15th Amendment's prohibition against voting discrimination was held inapplicable to primaries. Both amendments forbade only discrimination by the state itself. Private individuals or groups could practice discrimination to the extent permitted by the laws of their own states.
A trend toward more stringent interpretation began in the late 1930s. In Smith v. Allwright (1944) the Supreme Court held that blacks cannot be excluded from voting in primaries, because such elections are not private affairs but governmental actions. In Shelley v. Kraemer (1948) the court held that state courts cannot enforce " restrictive covenants," and in 1968 the court prohibited discrimination in all sales and rentals of property. In Brown v. Board of Education (1954), the court held that segregated public schools violate the 14th Amendment. The logic of this pronouncement was extended in the 1950s and 1960s to apply to all state-maintained facilities and, in the 1970s, to school desegregation by judicial requirement of busing and new attendance zones. The result was that the Civil War amendments were interpreted in a manner more consonant with their original intent.
Passage of the 24th Amendment in 1964 gave further protection. It bars states from requiring citizens to pay a poll tax in order to vote in federal elections and primaries. The protection does not extend to state and local elections.
Judicial Review. The principle of judicial review is perhaps the most distinctive single feature of the American constitutional system. It means simply that the judiciary, and ultimately the Supreme Court, is granted the power to determine whether a law passed by Congress or an act performed by the executive is in conformity with the Constitution. If the courts decide adversely, the law or act is declared invalid. Comparatively few laws are ever compelled to run this gauntlet, since the courts will not issue advisory opinions on the federal Constitution, and the question of constitutionality will not be posed unless it arises in the course of an actual case or controversy.
Nevertheless the number of laws so tested is large enough to warrant the assertion that no power so great has ever before been granted to the judiciary of a modern nation. In view of this, it is all the more remarkable that the power is not explicitly granted by any clause of the Constitution, but rests on the Supreme Court's interpretation of its own authority, although the textual basis for reviews of state action is less doubtful than review of congressional acts. It is probable that the framers of the Constitution did expect the document to authorize some form of judicial review, but what kind of judicial review they had in mind was never made clear. It remained for Marshall in Marbury v. Madison (1803) to assert in so many words that the Supreme Court had the power to invalidate acts of Congress when they were adjudged unconstitutional. And he established beyond doubt the power of the court to make the same decision regarding the validity of acts performed by state governments. Marshall did not originate the doctrine of judicial review, but he did give it its classic statement.
For some years there was heated opposition to these judicial claims. Although the Supreme Court lost some battles, it did win the war. By the time the court next actually invalidated a federal law (in the Dred Scott case, 1857), the doctrine of judicial review was a firmly established principle. The power is not without limits. While there is theoretically nothing to prevent the justices from invalidating any congressional act that might displease them, they have learned that they cannot with impunity often oppose the true expression of the popular will. Nevertheless, judicial review remains one of America's most startling and significant political innovations, a unique expression of the time-worn native principle that no government can be allowed to stand above the law. Scholars, both at home and abroad, have often criticized judicial review in the past on the ground that it tended to inhibit social reform. But since the revolution of the 1930s it has not been so employed by the Supreme Court. But it has protected rights such as those previously described, and this change has resulted in a reassessment of its value.
The Republican Principle. The central fact of the American political system is its origin in and dependence on the principle of popular control. Madison defined a "republican" government (the term "democracy" was not popular at the time) as one "which derives all its powers directly or indirectly from the great body of the people," and he held that "no other form would be reconcilable with the genius of the people of America." He knew, and later history has confirmed, that in all great matters the people must have their way. They may be advised and led, but finally when their will is asserted, it must be obeyed.
At the time of the Constitution's framing, the right to vote was sharply restricted in the majority of the states, but by the mid-19th century universal suffrage for white males had been generally established. The 15th Amendment nominally extended the voting right to African Americans, and the 19th Amendment (1920) extended it to women. But both the national House of Representatives and many state legislatures have been "malapportioned" in such a manner that inhabitants of the less populous areas enjoy political power greater than their numbers. This seemed to some a violation of the republican principle, and in Baker v. Carr (1962) the Supreme Court held that state apportionment systems might violate the "equal protection" clause of the 14th Amendment.
The firm base for political authority in the American system is the will of the populace. By that will it is controlled, and on it the political authority is dependent. In the ultimate sense, this popular control is expressed in the Constitution's amending clause, which gives notice that the people may, whenever they choose, change the form of their government. But the amending power is seldom used, and its significance is more symbolic than practical. In actual fact, the function of popular control is exercised through two elective branches of government and the less formal institutions, such as parties and pressure groups, that have grown up around them.
The Constitution of the United States does not explicitly recognize the existence of parties and makes no provision for them. Prescient as the framers were in many respects, they did not foresee that parties would become an operative necessity in a republican system, and indeed they seem to have hoped that the elective process they had set up would discourage parties or "factions" from developing. But parties had begun to form even before the Constitution was ratified, and shortly after the new government came into being, it became apparent that the electorate had divided roughly into two groups: the Federalists, who had supported the Constitution, and the Antifederalists, who had opposed it. Within a very few years this basis for cleavage was abandoned. The new nation's Constitution had become so universally popular that no party could afford to oppose it.
But other bases for disagreement were found, and the division of the electorate into two parties was maintained. Although labels and principles have sometimes changed, and occasionally a third party has arisen to contest briefly with the other two for political power, the "two-party system" inaugurated in these early years has continued essentially intact.
The question of why the American body politic has maintained this dual organization, instead of splitting into numerous fragmentary groups, has been much debated, and perhaps no definitive answer can be given. Probably historical circumstances have something to do with it: there is an undoubted tendency for people to vote in traditional patterns, and original clashes of opinion are likely to be perpetuated for generations after the reasons for them are forgotten. It has also been suggested that the division into two major parties can be attributed to the great importance of the presidency. A majority vote of the electoral college (whose membership is chosen by popular vote within the states) is required for the election of a president, and if more than two important parties were competing for this prize, a majority might be impossible to achieve.
Whatever may be the reason for the two-party split, its existence has had a significant effect on the course of American politics. It has meant, for one thing, that extreme or radical programs are discouraged, because both parties, if they hope to win elections, must make their appeal to a broad cross section of the voters. A truly radical plan might please one influential group but displease others. It has also meant, on the other hand, that American government has often been able to avoid the stalemates that so frequently occur in a multiparty system. The majority party is usually able to adopt a legislative program and use the preponderance of votes to carry it through, provided that the program is a fairly modest one. Once it is said that the two-party system makes governmental action possible, it must be added that control by the majority party, though usually effective enough to maintain some kind of legislative program, is never perfect in the United States. Congresspeople and senators frequently vote against their party if a measure happens to touch on a concern that is close to their hearts.
As a matter of fact, American parties are loosely organized and difficult to discipline. No single leader has ever been able to " boss" either of the two great parties, Democratic and Republican, for very long. The existence of the federal system makes strong national control almost impossible, inasmuch as many important political offices, such as the governorships, for example, are set up at the state level and the candidates for these positions are likely to be chosen on the basis of local issues. Moreover, members of the House of Representatives are elected from districts within the states, and those in the district who vote for a given representative may do so because he or she has served the district well rather than because of his or her position on some national or international issue. Finally, party irregularity is attributable to the fact that the president, who is nominally the leader of his or her party, has no power to dissolve the legislature when it disagrees with him or her, as a premier can under parliamentary systems. As a result, congresspeople can vote against the president's measures without fear that they will be deprived of their seats and be forced at once to seek reelection.
One result of this looseness of party discipline is that pressure groups play an extremely significant role in the American political process. In a system where party control is strict, the effectiveness of any given special-interest group is likely to be limited, because it must deal with the party leaders or not at all. But in the United States, each member of Congress is likely to become a focal point for pressures because he or she does not feel obliged to vote with his party at all times.
Nor does the influence of these special interests stop with the congressmen. Many of the more important groups maintain lobbies in Washington, that is, offices with paid staffs whose function it is to influence governmental action at all levels, from the president down. Such powerful organizations as the American Federation of Labor and Congress of Industrial Organizations, the American Farm Bureau Federation, the American Legion, and the Chamber of Commerce of the United States may actually have the most profound effect on great issues of national policy.
Sometimes these lobbyists no doubt influence the government to follow a course of action that is detrimental to the interests of the nation as a whole, but this need not be the case. It has been argued that pressure groups may often serve a useful function by acting as watchdogs in keeping track of issues that the general public might overlook. For example, if both labor and business groups interest themselves in a proposed law, the result may be that both Congress and the public will become better informed about each side of the issues involved, and the "public interest " may therefore be easier to discern.
Whatever is the truth of this matter, many have felt it important to make sure that lobbies do not operate under the cover of secrecy. The Federal Regulation of Lobbying Act of 1946 required that lobbyists in the national capital register, state their purposes, and list all contributions, salaries, and expenses. But it cannot be said that this has made any important difference in the role of pressure groups in Washington. Moreover, what small effect the law might have was diminished by the Supreme Court's holding in 1954 (United States v. Harriss) that it did not apply to "indirect lobbying" (that is, organized effort to influence legislation by publicity rather than by direct contact with congresspeople).
The constitutional requirements relating to the electoral process are relatively few, and the task of control is left largely to the states. Of course, the right to vote cannot be abridged for reasons of race or color (the 15th Amendment), for reasons of sex (the 19th Amendment), or for persons 18 years of age or older (the 26th Amendment). But apart from these special requirements, the states are practically free to prescribe what voting qualifications they will, even for national offices. The qualifications of those who vote for representatives and senators must be the same as for those who vote in the state for "the most numerous branch of the state legislature," but the states are not even restricted to this degree in prescribing qualifications for presidential electors.
Until 1944, the party primaries (preliminary elections in which each party's candidate for the general election is chosen) were held to be exempt from even the few constitutional controls that do exist, on the theory that both the party and the primary were private affairs. But in that year the Supreme Court held that primaries are a part of the electoral process and must therefore conform to the constitutional requirements governing elections, including the 15th Amendment.
Congressional candidates in general are nominated either by party conventions, meeting in the districts or on a statewide basis, or by the voters in a "direct primary" election. The latter method has been adopted in most states. In either case, the candidate who is chosen by convention or party primary wins exclusive title to the label of that party on the ballot at the general election, which is usually held a few weeks later. In some states nomination by one party may be tantamount to election. For many years this was the case with Democratic party nominations in the Deep South.
At the general election, representatives are elected by the eligible voters in each congressional district. Senators are elected by the voters of the state as a whole. Representatives hold office for two years, but the members of the Senate have six-year terms, one third of the senators coming up for reelection every two years.
The presidential and vice presidential candidates are chosen by national nominating conventions held by each party in the summer before the presidential election, which occurs every four years. Convention delegates are selected under elaborate rules formulated by the parties, the general principle being that each state is represented in rough proportion to its population and its adherence to the party in previous elections.
The direct primary, so extensively used in nominating candidates for other offices, has never been similarly applied in choosing candidates for the presidency, although many states hold primaries that allow the voters to express their preference. Only a few of these "preferential primaries" are significant: victories in them may help an aspirant some; defeats may hurt him a great deal. But the real decision remains in the hands of the conventions, and they, while not impervious to popular sentiment, may arrive at a quite different choice than the one the voters would have made.
At the general election, the voters cast their ballots for the presidential candidate they prefer, and the candidate with the largest number of votes in the state receives the full support of that state's delegation in the electoral college. (In Maine, however, the candidate carrying the state as a whole gets two electoral votes and the candidate carrying each congressional district gets the electoral vote for that district.) The number of representatives a state may have in the electoral college is determined by the total number of senators and representatives to which it is entitled. The successful presidential candidate must receive a majority of the votes in the electoral college. If no candidate has a majority, the president is chosen by the House of Representatives, and the vice president by the Senate.
Robert G. McCloskey
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Cooke, J. W., The American Tradition of Liberty, 1800–1860: From Jefferson to Lincoln (Methuen 1986).
Freedman, Leonard, Power and Politics in America, 6th ed.(Brooks/Cole 1991).
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McCloskey, Robert G., The American Supreme Court, 2d ed., ed. by Sanford Levinson (Univ. of Chicago Press 1993).
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