The Problem of Sovereignty

Projecting the doctrine of popular sovereignty onto a national constitution raised practical and theoretical problems. Antifederalists believed that a republic could exist only in a small geographic area and that only one sovereign could exist in a state. William Grayson of Virginia, for example, observed that "I never heard of two supreme coordinate powers in one and the same country before." ⁶ The term sovereignty had historically required that authority reside in one place, and the Federalists knew that

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this could not be the states because such an arrangement would frustrate their economic agenda. Both groups of delegates entered the convention convinced that excessive democracy, as exemplified by Shays's Rebellion, threatened property rights and social stability. Placing the authority for a new national government in the hands of the people seemed unlikely and unadvisable.

In a pattern that became familiar over the next two centuries, a political elite (the Federalists) legitimated their goals through an appeal to popular will. The "authorities of the general government and state government all radiate," James Madison explained as he tipped existing theory on its head, "from the people at large." ⁷ Madison pressed this popular will theory of national public law because it offered a practical means of reaching an objective--a stronger national government supportive of economic and social stability--that was otherwise denied to the Federalists. Once the Federalists perceived "'the great principle of the primary right of power in the people,' they could scarcely restrain their enthusiasm in following out its implications." ⁸

Madison countered fears of excessive democracy by formulating a kinetic theory of government. Popular sovereignty, he explained, would "enable the government to control the governed; and in the next place oblige it to control itself." ⁹ The people would energize each branch of the new government, creating a tension that would prevent any one branch, and government as a whole, from becoming tyrannical. Madison, as had the states before, rejected Montesquieu's theory of mixed government and estates; the new Constitution disembodied government from society, making the people as a whole, rather than in separate estates, a check on government. But the people's authority also enabled national government to act on behalf of national interests. The framers adopted, as well, a scheme of checks and balances that further diffused and restricted power.

Popular sovereignty also supported two other Federalist goals of binding the several states into a national republic and preventing the rise of political factions, or parties. Madison, in Federalist No. 10, argued that the United States was a republic and not a democracy; this meant that the people delegated "government to a small number of [elected] citizens" rather than allowing each citizen to decide and act directly on government. "Extend the sphere and you take in a greater variety of parties and interests," he counseled, and "you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens." ¹⁰ The resulting tension would prevent arbitrary restraints on liberty through majority tyranny (a constant problem in small republics and democracies). Also, a large republic promised to prevent a political faction from selfishly controlling government for its own rather than the public purpose. The framers not only failed to foresee the rise of political parties as a legitimate form of opposition to government, but they positively worked to prevent them.

Federalism

The Federalists accommodated existing state governments by dividing the indivisible. Blackstone and other English commentators had held that it was "a solecism in politics for two coordinate sovereignties to exist together." ¹¹ What emerged from the convention was "a system hitherto unknown," which was a plan for "a perfect confederation of independent states." ¹²

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Federalism is a system of government under which there exists simultaneously a federal or central government and several state governments as contrasted with a unitary government. The "original understanding" of federalism reached in 1787, according to the historian Harry Scheiber, rested on a "compound principle" that was both structural and operational. ¹³ It grafted a system of national government onto existing states by giving the states direct and equal representation in the Senate and by leaving with the states the major responsibility of controlling the process of elections and establishing the criteria of citizenship. The Constitution granted the national government, mostly in Article I (the legislative), only enumerated powers, but with the proviso that Congress retained authority "to make all laws necessary and proper for carrying [them] into execution." ¹⁴ The new government could, for example, levy taxes, raise armies, and regulate commerce among the states. Those powers not specifically enumerated remained with the states.

Federalism cut the other way as well. Fear of state legislative authority persuaded the delegates to place certain prohibitions on the states, such as restricting their authority to coin money and interfere with private contracts. Such prohibitions, according to James Wilson, were necessary because in the states the people did not delegate enumerated powers but rather "invested their representatives with every right and authority which they did not in explicit terms reserve." ¹⁵

These were modest limitations. The states retained the important power to provide for the morals, health, safety, and welfare of their citizens. These police powers, as they were known, enabled each state to act directly on persons without fear of interference by the national government.

The framers refrained from putting a bill of rights in the Constitution on the logical grounds that the document established a government of limited, enumerated powers. As Hamilton observed, there was no point declaring "that things shall not be done which there is no power to do." ¹⁶ Antifederalists did win a victory of sorts when they obtained pledges from several state conventions that their ratification depended on Congress subsequently amending the Constitution to include a bill of rights. The first Congress, followed by ratification of three-fourths of the states, added ten amendments. The first eight affirmed basic rights; the ninth provided that the people retained rights not otherwise enumerated; and the tenth granted the states those "powers" (not rights) not given to the national government or denied to the states by the Constitution. This Bill of Rights applied only against the national government. The framers simply did not envision the federal government as mediator in the conduct of the states in matters of individual liberty. That modern concept only emerged after adoption of the Fourteenth Amendment in 1868 and the revolution in federalism that followed it.

The original concept of American federalism meant that in the final analysis the resolving of conflicts between the states and Congress would have to be decided by an "informal political process." ¹⁷The principle of federalism was established, but future generations would settle on the exact terms by which the indivisible would be divided.

The Judiciary

The framers also defined the new judicial branch in equally broad terms, leaving to Congress the responsibility of adding most of the detail. Article III stirred far less debate than did either Article I (the legislative) or Article II (the executive).

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As in so many other areas, the framers drew upon state experience in establishing the federal judiciary. Most of the framers, with the notable exception of James Wilson, embraced the departmental theory of constitutional interpretation that underlay the organization of the state judiciaries. This theory held that each department or branch of government was capable within its sphere of responsibility of interpreting the state's organic law. State constitutions, while fundamental law, combined elements of a strictly legal nature such as trial by jury, with matters of political significance such as the powers of the executive and legislative branches. Under the departmental theory, the political branches had responsibility for political-constitutional controversies, and the judicial branch assumed the role of settling legal-judicial questions, overseeing the rule of law. State appellate courts emerged in the 1780s and 1790s as institutions designed to fulfill the republican function of preserving the common good through legal authority while protecting themselves from legislative and executive encroachments.

The delegates in Philadelphia wanted to strike a balance between law and politics. They expected the judiciary to curb popular excesses while preserving minority rights of property holders. They had no understanding of the judiciary (as some persons do today) as a political and lawmaking body. That function belonged exclusively to the political branches. That is what Alexander Hamilton meant when he described the judiciary as the "least dangerous branch" because it had access to neither the purse nor the sword. ¹⁸ "If judges should be disposed," Hamilton wrote in Federalist No. 78, "to exercise will instead of judgment, the consequences would equally be the substitution of their pleasure to that of the legislative body." ¹⁹ The requirement of the judicial process that judges could not act until a controversy was presented to them in proper legal form further restrained their discretion.

Date: 2015-01-29; view: 787