Bill has advanced degrees in education and political science. He has been a political science teacher for over 27 years.
“What you’re doing is unconstitutional”! We hear this refrain a lot today: the Democrats accused the Bush Administration of acting unconstitutionally toward terrorists who were detained at Guantanamo Bay. Since Barack Obama has been president, Republicans have accused the Democrats of exceeding the Constitution in the passage of the health care bill. And then there’s Ron Paul who looks at both the Republicans and the Democrats and says “a plague on both your houses.”
What does it mean to say that the government is acting “unconstitutionally”? In order to answer that question, it might help to know what a Constitution is supposed to do. In English-speaking nations, the purpose of the Constitution is to protect the liberties of the people by constraining the powers of government. This is apparent when you look at the constitutional history of merry ole’ England. Magna Carta of 1215 was a concession by King John to the barons. Later, the Petition of Right (1628) reaffirmed the rights of Magna Carta, a concession made by Charles I to the Parliament. The Habeas Corpus Act, the English Bill of Rights and others were drafted to constrain the actions of government.
In the United States, no one better defined the role of a constitution than Thomas Jefferson when he said...
In questions of political power, speak to me not of confidence in men, but bind them down from mischief with the chains of a Constitution.
This essay is devoted to analyzing how the United States Constitution limits the powers of the government to, in effect, “bind the prince.”
How the Constitution "Binds the Prince"
There are four features of the US Constitution that help “bind the prince”: Separation of Powers, Federalism, Checks and Balances, and a Bill of Rights.
Separation of Powers—Within the national government, political power is divided between three departments or “branches” of government: legislative, executive, and judicial. The legislative branch, or Congress, has the power to make national laws. There is no popular referendum and no one save a member of Congress can introduce a bill for consideration. The executive, on the other hand, has the power to enforce the law. The Constitution says that the president is to “take care that the laws be faithfully executed.” Finally, the judicial branch, with its Supreme Court and other “inferior courts” is charged with settling legal disputes.
By separating the three powers of law (legislative, executive, and judicial) into three independent departments, the purpose of the framers was to reduce the chances of judicial tyranny. They got this idea of creating different departments from a French political theorist Barron de’ Montesquieu. In his book the Spirit of the Laws, Montesquieu laid out his idea of creating separate and independent departments to carry out the powers of government. By housing the powers in separate and independent departments, each government official could only go but so far in the exercising of political power and would thereby reduce the potential for tyranny.
Federalism—Federalism is the division of power between the national government and the states. This feature divides power geographically by placing two governments in the same locale. Most governments today, like Great Britain, France, and Israel concentrate power in the hands of a national government. This power allows the national authority to have a final say on all policy matters relating to the nation. Such states are referred to as unitary states.
However, the drafters of the US Constitution envisioned a different arrangement. In short, they delegated some powers to the national government and left the other powers to the states or to the people (The Tenth Amendment). Alexander Hamilton believed that this federal arrangement would protect the liberties of citizens by pitting the ambitions of each government against the other. As James Madison said in Federalist #51, “Ambition must be made to counteract ambition.” If one government, say the national, became more onerous to the people, suppressing their rights, then the people could seek refuge with the states in taking up the cause of the people. The reverse would be true should the states become oppressive of the people’s rights.
One way that the Constitution maintains federalism is by listing the powers of the three branches of the national government. Next, the relationship between states is defined as well as the state’s relationship to the national government. For example, states are required to honor the official documents (like a driver’s license) of other states. Then, the Ninth Amendment to the Constitution says that just because a right is not mentioned in the Constitution does not mean that the people are not entitled to that right. Finally, the Tenth Amendment says that if a power is not granted to the national government and is not prohibited to the states, that power is a power for the states or for its people.
Checks and Balances—A third feature of the Constitution is checks and balances. With checks and balances, each branch of government has a limited amount of control over the other two branches. Probably the most famous “check and balance” is the presidential veto. Congress has the power to make the laws, but just because Congress has the absolute power to craft the legislation does not mean that it becomes law. The president has the power to “check” this congressional power by vetoing the congressional act.
The checks and balances feature of the Constitution works to encourage a minimal level of cooperation between the branches while still allowing for each branch to maintain its independence from the other.
Bill of Rights—The bill of rights is different from the other three features because it states what protections the people have from their government while the other three constitutional features are mostly concerned with arranging (“constituting”) the power of government in some way so as to accomplish some desired outcome. With a Bill of Rights, the constitutional protections afforded to the people are stated in terms of “negatives” directed at the government. Note how rights are addressed in the Bill of Rights
Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof (First Amendment)
The right of the people to keep and bear arms shall not be infringed. (Second Amendment)
…no cruel and unusual punishments inflicted. (Eighth Amendment)
This is probably the most important feature of the US Constitution and one most misunderstood. The US Constitution does not grant rights to persons: these rights are already in possession of persons without a constitution. What the Constitution does is to provide a security to the exercise of rights in the form of a prohibition on the government. With regard to the freedom of religion, Congress is prohibited from granting favor to an establishment of religion or infringing upon its free exercise.
In short, the Constitution provides four features that “bind the prince”: the separation of powers reduces the opportunities for tyranny; federalism provides a refuge from government oppression by setting up a rival government in which the people can seek refuge; checks and balances provides for minimal cooperation among the three branches while still encouraging them to remain independent (and thereby separate); and a bill of rights provides securities in the form of restraints on the exercise of governmental power.
But if that’s what a Constitution is supposed to do, why is it not working? The fact is that the Constitution works pretty well, but there have been changes throughout history that have weakened its effectiveness. Some of those changes have not been to the actual text, but have been in the way it has been interpreted by men that have been ignorant of its Framers intention. In this next essay entitled "Hughes Hubris," I discuss poor and proper modes of constitutional interpretation.
© 2010 William R Bowen Jr
Jodie on December 14, 2014:
Right onht-is helped me sort things right out.