Problems in American Democracy Part 74

498. THE THEORY OF LIMITED GOVERNMENT.--The new Const.i.tution created a system of Federal government which retains the advantages of local self-government for the states, but at the same time secures the strength which results from union. The government of the United States is a compromise between centralization and decentralization, the balance between these two extremes being maintained by a rather elaborate system of checks, balances, and limitations.

These checks, balances, and limitations we may consider under five heads: first, private rights under the Federal Const.i.tution; second, the threefold division of powers in the Federal government; third, the division of powers between Federal and state governments; fourth, interstate relations; and fifth, the supremacy of Federal law.

499. PRIVATE RIGHTS UNDER THE FEDERAL CONSt.i.tUTION. [Footnote: For the prohibitions upon the states in favor of private rights, see Chapter XLV.]--The const.i.tutional limitations upon the Federal government in behalf of private rights fall into two groups: those designed to protect personal liberty, [Footnote: Some of the limitations in favor of personal liberty enumerated in this section are contained in the first ten amendments to the Const.i.tution, adopted in a body in 1791.]

and those designed to protect property rights.

In many important particulars the Federal Const.i.tution protects personal liberty against arbitrary interference on the part of the National government. Congress may pa.s.s no law establishing or prohibiting any religion, or abridging either freedom of speech or freedom of the press. The right of the people peaceably to a.s.semble and pet.i.tion the government for a redress of grievances shall not be denied. The privilege of the writ of _habeas corpus_ shall not be suspended. Congress may not define treason. Neither bills of attainder, nor _ex-post facto_ legislation may be pa.s.sed by Congress.

Jury trial, fair bail, and freedom from both excessive fines and cruel and unusual punishments are guaranteed by the Const.i.tution. Neither life, liberty nor property may be taken without due process of law.

The Federal Const.i.tution likewise protects the property rights of the individual against Federal aggression. The state governments alone may define property. Congress may not tax articles which are exported from any state. All direct taxes must be apportioned according to population. [Footnote: The Sixteenth Amendment exempts the income tax from this rule.] All duties, imposts, and excises must be uniform, that is, they must fall upon the same article with the same weight wherever found. Under the right of eminent domain, the Federal government may take private property for public use, but in such a case the owner must be fairly compensated.

500. THREEFOLD DIVISION OF POWERS IN THE FEDERAL GOVERNMENT.--A second distinctive feature of our system of government is that Federal authority is distributed among three distinct branches: the executive, the legislative, and the judicial. This is part of the general system of "checks and balances" by means of which the framers of the Const.i.tution sought to prevent any branch or division of government from securing undue control of the governmental machinery.

The basic merit of this threefold division of powers is that it safeguards each branch of government against aggression from the other two branches. And yet this division of powers is by no means so complete that the three branches do not work together. For example, both the appointive and the treaty-making powers of the President are shared by the Senate. The President shares in legislation through his veto power, as well as through his right to send messages to Congress.

The Senate has the right to impeach all civil officers of the United States, and may even exert some control over the Supreme Court through its right to prescribe the number of its judges and the amount of their salaries. The judiciary, on the other hand, enjoys the unique power of pa.s.sing upon the const.i.tutionality of the acts of the other two branches of government.

501. DIVISION OF POWERS BETWEEN FEDERAL AND STATE GOVERNMENTS.-- Another feature of the check and balance system is that authority is divided between Federal and state governments. The Tenth Amendment declares that "the powers not delegated to the United States by the Const.i.tution, nor prohibited by it to the states, are reserved to the states." Thus we speak of the National government as enjoying delegated or enumerated powers, while the state governments have residual or unenumerated powers. The Federal government must show some specific or implied grant of power for everything that it does, but state governments need only show that the Federal Const.i.tution does not prohibit them from doing whatever they see fit.

This division of powers between Federal and state governments has several distinct advantages. For example, it allows Federal and state governments to act as a check upon one another. Furthermore, the device admirably divides governmental labor: the Federal government is given control of matters essentially national, while the states are left in charge of affairs distinctly state or local in character.

502. INTERSTATE RELATIONS.--Further to guarantee the integrity of the Federal system, the Const.i.tution specifies the fundamental nature of interstate relations. The states are independent of one another, and are equal in Federal law. The laws of a state have no force, and their public officials have no authority, beyond the state limits.

The Const.i.tution specifically provides that "full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state." This does not mean that the laws of a particular state are binding upon persons in other states. It does mean, however, that the courts of each state shall endeavor to give the same force to the laws of a neighboring state as those laws would have in the courts of the legislating state.

To prevent discriminations against citizens of other states, the Federal Const.i.tution provides that the citizens of each state are "ent.i.tled to all the privileges and immunities of citizens in the several states." This means that a citizen of one state may remove to a neighboring state, and there enjoy the same civil rights that the citizens of the latter state enjoy.

In order that fugitive criminals may be tried and punished, the Const.i.tution further provides that "a person charged in any state with treason, felony, or other crime, who shall flee from justice, and be found in another state, shall, on the demand of the executive authority of the state from which he fled, be delivered up to be removed to the state having jurisdiction of the crime."

503. SUPREMACY OF FEDERAL LAW.--A last distinctive feature of our system of government is that Federal law is supreme. The Const.i.tution states: "This Const.i.tution and the laws of the United States which shall be made in pursuance thereof, and all treaties made or which shall be made under the authority of the United States shall be the supreme law of the land." The states are supreme in their sphere of action; nevertheless, when it is claimed that there is a conflict between state and Federal law, the latter prevails. Federal law is the supreme law of the land, and, in the last instance, it is the Supreme Court of the United States which is the interpreter of that law. The decisions of the Supreme Court are binding upon the Federal government, upon the several states, and upon private individuals.

C. DEVELOPMENT OF THE FEDERAL CONSt.i.tUTION

504. THE FORMAL AMENDING PROCESS.--The Const.i.tution of the United States may be formally amended in any one of four ways. First, an amendment may be proposed by a two-thirds vote of each House of Congress, and ratified by the legislatures of three fourths of the states. Second, an amendment may be proposed by a two-thirds vote of each House of Congress and ratified by conventions in three fourths of the States. Third, an amendment may be proposed by a national convention, called by Congress upon the request of the legislatures of two thirds of the states, and ratified by the legislatures of three fourths of the states. The fourth method resembles the third, except that ratification is by conventions in three fourths of the states.

505. AMENDMENTS I-XIX.--There have been nineteen Amendments to the Federal Const.i.tution. [Footnote: For the full text of these Amendments see the Appendix.]

Of these the first ten were adopted as a body in 1791, to satisfy those who feared that the new Const.i.tution did not adequately protect individual or states' rights against Federal aggression. Amendments I- VIII are designed to protect the fundamental rights of the individual.

The Ninth and Tenth express the principle that the Federal government is one of enumerated powers, while those powers not specifically conferred upon the Federal government by the Const.i.tution are reserved to the states or to the people.

The Eleventh Amendment, adopted in 1798, provided that the Federal judicial power should not be construed to extend to any suit against a state by citizens of another state, or by citizens or subjects of any foreign state.

The Twelfth Amendment, adopted in 1804, provided that presidential electors should cast separate ballots for President and Vice President.

The Thirteenth Amendment (1865) abolished slavery, the Fourteenth (1868) defined citizenship and sought to prevent the states from discriminating against certain cla.s.ses of citizens, while the Fifteenth Amendment (1870) declared that the right of citizens of the United States to vote shall not be denied or abridged on account of race, color, or previous condition of servitude.

In 1913 the Sixteenth Amendment authorized Congress to tax incomes without apportionment among the several states, and without regard to any census or enumeration.

In the same year the Seventeenth Amendment provided for the direct election of United States Senators.

In 1919 an Eighteenth Amendment prohibited the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from, the United States.

A Nineteenth Amendment was adopted in 1920. This declared that the right to vote shall not be denied to any citizen of the United States on account of s.e.x.

506. CONSt.i.tUTIONAL CHANGES THROUGH JUDICIAL INTERPRETATION.--The Federal Const.i.tution has also been modified and developed by judicial interpretation. The United States Supreme Court has maintained that the Federal government possesses not only those powers expressly granted by the Const.i.tution, but also those powers which are included with, or implied from, powers expressly granted. This liberal construction is authorized by the Const.i.tution itself, for the last clause in Section VIII of Article One of that doc.u.ment declares that Congress shall have power to "make all laws which shall be necessary and proper for carrying into execution" its enumerated powers. Under this doctrine of implied powers, the influence of the National government has been markedly extended, chiefly with regard to the war power, the power to regulate interstate commerce, and the power to levy taxes and borrow money.

507. CONSt.i.tUTIONAL CHANGES THROUGH USAGE.--The Federal Const.i.tution has also been modified by the force of custom and political practices.

Examples of the power of usage to modify the Const.i.tution are numerous, but a few will suffice to ill.u.s.trate the principle. Custom has limited the President of the United States to two terms. In conformity with a long-established custom, Presidential electors do not exercise independent judgment, but merely register the vote of their respective const.i.tuents. Though the Const.i.tution provides that the appointive power of the President shall be exercised with the advice and consent of the Senate, custom virtually prohibits the Senate from challenging the President's Cabinet appointments. On the other hand, many executive appointments of minor importance are determined solely by members of Congress. Usage decrees that the President alone may remove officers which he has appointed with the advice and consent of the Senate. Lastly, the legislative committee system, as well as the entire machinery of the political party, is the outcome of custom. Concerning these important instruments of practical politics, the Const.i.tution is silent.

QUESTIONS ON THE TEXT

1. Point out some similarities among the American colonial governments.

2. Describe some of the earlier attempts at union.

3. What was the nature of the Confederation government?

4. For what specific purpose was the Const.i.tutional Convention convened?

5. What was the Virginia plan? The New Jersey plan?

6. What was the fundamental difference between the Confederation government and the new Federal government?

7. What is the theory of limited government?

8. What two cla.s.ses of private rights are safeguarded by the Federal Const.i.tution?

9. What is the nature and purpose of the threefold division of powers?

10. To what extent does the Const.i.tution divide powers between Federal and state governments?

11. Outline the nature of interstate relations, as provided for in the Federal Const.i.tution.

12. What is meant by saying that Federal law is supreme?

13. By what four methods may the Federal Const.i.tution be amended?

14. Enumerate and briefly characterize the nineteen amendments to the Federal Const.i.tution.

15. To what extent has the Federal Const.i.tution been modified by judicial interpretation?

16. How may the Const.i.tution be modified by usage? Give some examples.

REQUIRED READINGS

1. Beard, _American Government and Politics_, chapter iii.