Before the Constitution: The Colonial and Revolutionary
Experiences
Early Americans' admiration for limited government was based on their British heritage and their colonial experience.
Accepted British tradition of common law that included a right to trial by jury and due process of law.
In the pre-revolutionary period, the British Crown ignored the colonists' "rights as Englishmen" through punitive taxes and other burdensome laws.
Accepted principle of no taxation without representation.
John Locke's writings, with their emphasis on natural rights such as life, liberty, and property, were the liberal component of the British heritage included in the U.S. Declaration of Independence.
The Articles of Confederation subordinated national authority to that of the states, creating a weak and ineffectual national government. The national government lacked the power to tax and had to rely on voluntary contributions from the states. The states did not contribute enough money to pay the national government's debts, resulting in the inability to support an adequate army and navy. Congress could not develop a national economy because the Articles forbade Congress from interfering in the states' commerce policies. Weak national governmental authority under the Articles resulted in public disorder, economic chaos, and inadequate defense. Shays's Rebellion clarified the need for a stronger national government, providing the impetus for a constitutional convention to revise the Articles.
Negotiating Toward a Constitution
Formulating and agreeing upon a stronger national government required a variety of compromises at the Philadelphia constitutional convention.
An effective government required a union of people, not states.
The Great Compromise between the New Jersey and Virginia plans provided for a bicameral (two-chamber) Congress: the House of Representatives would be apportioned among the states on the basis of population and the Senate on the basis of an equal number of votes (two) for each state.
The North-South Compromise between the commercial, non-slave Northern states and the agricultural, slave Southern states prohibited a tax on exports (but not imports) and allowed slavery to remain legal under the "Three-fifths Compromise."
The ratification debate revolved around the issue of national versus state sovereignty. The Anti-Federalists (opponents of the Constitution) favored a state-centered government that gave more power to the nation to strengthen defense and interstate commerce. The Federalists (supporters of the Constitution) favored changing from a confederacy to a federal form of government that would give the national government greater authority for defense and commerce.
The Framer's established a system of government (federalism) in which power is divided between the national government and the states.
Providing for a Limited Government
The Framer's other goals were to establish a national government that was restricted in its lawful uses of power (limited government) and that gave the people a voice in their governance (self-government). The Constitution seeks to establish a government strong enough to enforce national interests, including defense and commerce among the states, but not so strong as to destroy liberty.
Limited government was built into the Constitution through both grants and restrictions of political power. For example, Congress's lawmaking authority is constitutionally confined to seventeen specified powers. Denials of power included protection of habeas corpus and from ex post facto laws.
Framers sought to check power with power by dividing the authority of the government so that no single institution could exercise great power without the agreement of other institutions. This is known as separation of powers.
Limited government was reinforced by a system of separated institutions sharing power, creating elaborate checks and balances between the three branches of national government. Both Figure 2-2 and the text explain in detail the way the legislative, executive, and judicial branches share legislative, executive and judicial powers.
Federalism helps to protect liberty by dividing power further between national and state/local levels of government.
The Bill of Rights was added to the Constitution to protect individuals' civil liberties from being taken away by the national government.
The judiciary determines whether the government is operating within its constitutional framework of powers. Supreme Court Chief Justice John Marshall in the landmark case Marbury v. Madison defined the powers of the Supreme Court and asserted its power of judicial review.
The power of judicial review is the power of courts to declare governmental action null and void when it is found to violate the Constitution.
Providing for Self-Government
The Framers feared the tyranny of the majority and proposed to control the power of the majority. They distinguished between a democracy and a republic.
In a direct democracy, the public decides issues directly.
In a republic or representative government, officials elected by the public meet in representative institutions to decide policy for the public.
The Framers adopted the trustee theory of representation.
No provisions were made for direct popular participation at the national level of government.
Members of the House of Representatives would be selected by direct popular election, while Senators would be appointed by their state legislatures.
The House was designed to be more responsive to popular opinion while the Senate was envisioned to check and balance the House.
The President would be chosen by electors from each state rather than by direct national popular election.
Judges would be appointed rather than elected.
Different terms and selecting processes for public officials would make it more difficult for a numerical majority to dominate decision making.
Soon after ratification of the Constitution, Americans sought a stronger voice in their own governing.
Jefferson championed the common people and urged Americans to look upon the national government as belonging to all, not just to a privileged few.
The era of Jacksonian Democracy increased the role of the public in government. Jackson persuaded states to make the popular vote the basis for selecting presidential electors. He encouraged more rotation of office holders by abolishing property ownership as a requirement for voting. He also promoted formation of grass-roots political parties and the party nominating convention.
The Progressive era brought forth reforms designed to weaken the power of business trusts and political party bosses. They proposed that representatives act more like instructed delegates of the people, rejecting the trusteeship model. They introduced the initiative and referendum mechanisms for direct popular control over legislation at the state and local level. Recall elections provided a way for citizens to remove an existing official from office. Other reforms proposed direct popular election of U.S. senators and the direct primary nominating system.
Progressive reform efforts encouraged historian Charles Beard to argue that the Framers devised an elaborate systems of power and representation in order to keep power in the hands of the rich.
American government evolved into a constitutional democracy which is democratic in its provisions for majority influence through popular elections, and constitutional in its requirement that this power be exercised in accordance with law and with due respect for individual rights.
Constitutional Democracy Today
The United States today has a hybrid system of constitutional democracy that combines original countermajoritarian elements with newer majoritarian aspects.
The U.S. conducts elections for the House of Representatives and for the chief executive more frequently than any other democracy.
Self-government in the U.S. is illustrated by primary and general elections.
Less majoritarian elements of the U.S. system are the separation of powers and staggered terms of office which encourage separate constituencies.
The link between an electoral majority and a governing majority is less direct in the American system than in European democratic systems
