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How the U.S. Constitution Separates National Power

by Xiaohong Wei The Constitution of the United States of America, written well over 200 years ago, has been the foundation for building one of the great nations. It is the central instrument of American government and the supreme law of the land. For more than 200 years, it has guided the evolution of U.S. governmental institutions and has provided the basis for political stability, individual freedom, economic growth and social progress. However, the birth of the Constitution is not accidental, but has complicated economic and political backgrounds. The period after the Revolutionary War was characterized by economic depression and political crisis on the grounds that the Articles of Confederation just devised a loose association among the states, and set up a central government with very limited powers. The central government could not get the dominant position in the country’s political life while the individual states could do things in their own ways. In this chaotic situation, the central government was incapable of paying its debt, of regulating foreign and domestic commerce, of maintaining a steady value of the currency, and worst of all, incapable of keeping a strong military force to protect the country’s interests from foreign violations. As time went by, the old system became more and more adverse to the development of the young nation, and political reform seemed to be inevitable. The best solution was to draw up a new constitution in place of the Articles of Confederation. The Constitution was drawn up by 55 delegates of twelve states (all but Rhode Island) to the Constitutional Convention in Philadelphia during the summer of 1787 and ratified by the states in 1788. That distinguished gathering at Philadelphia’s Independence Hall brought together nearly all of the nation’s most prominent men, including George Washington, James Madison, Alexander Hamilton and Benjamin Franklin. Many were experienced in colonial and state government and others had records of service in the army and in the courts. As Thomas Jefferson wrote John Adams when he heard who had been appointed: “It is really an assembly of demigods.” Despite the consensus among the framers on the objectives of the Constitution, the controversy over the means by which those objectives could be achieved was lively. However, most of the issues were settled by the framers’ efforts and compromises, thus the finished Constitution has been referred to as a “bundle of compromises”. It was only through give-and-take that a successful conclusion was achieved. Such efforts and compromises in the Constitutional Convention of 1787 produced the most enduring written Constitution ever created by humankinds. The men who were at Philadelphia that hot summer hammered out a document defining distinct powers for the Congress of the United States, the president, and the federal courts. This division of authority is known as a system of checks and balances, and it ensures that none of the branches of government can dominate the others. The Constitution also establishes and limits the authority of the Federal Government over the states and emphasizes that power of the states will serve as a check on the power of the national government.

Separation of Powers in the Central Government

One important principle embodied in the U.S. Constitution is separation of powers. To prevent concentration of power, the U.S. Constitution divides the central government into three branches and creates a system of checks and balances. Each of the three governmental branches, legislative, executive and judicial, “checks” the powers of the other branches to make sure that the principal powers of the government are not concentrated in the hands of any single branch. The principle of separation of powers and the system of checks and balances perform essential functions and contribute to a stable political situation in the United States.

1. Theory of Separation of Powers

The principle of separation of powers dates back as far as Aristotle’s time. Aristotle favored a mixed government composed of monarchy, aristocracy, and democracy, seeing none as ideal, but a mix of the three useful by combining the best aspects of each. James Harrington, in his 1656 Oceana, brought these ideas up-to-date and proposed systems based on the separation of power. Many of the framers of the U.S. Constitution, such as Madison, studied history and political philosophy. They greatly appreciated the idea of separation of power on the grounds of their complex views of governmental power. Their experience with the Articles of Confederation taught them that the national government must have the power needed to achieve the purposes for which it was to be established. At the same time, they were worried about the concentration of power in one person’s hands. As John Adams wrote in his A Defense of the Constitution of Government of the United States of America (1787), “It is undoubtedly honorable in any man, who has acquired a great influence, unbounded confidence, and unlimited power, to resign it voluntarily; and odious to take advantage of such an opportunity to destroy a free government: but it would be madness in a legislator to frame his policy upon a supposition that such magnanimity would often appear. It is his business to contrive his plan in such a manner that such unlimited influence, confidence, and power, shall never be obtained by any man.” (Isaak 2004:100) Such worries compelled the framers to find a good way to establish a new government, thus separation of powers and a balanced government became a good choice. Two political theorists had great influence on the creation of the Constitution. John Locke, an important British political philosopher, had a large impact through his Second Treatise of Government (1690). Locke argued that sovereignty resides in individuals, not rulers. A political state, he theorized, emerged from a social contract among the people, who consent to government in order to preserve their lives, liberties, and property. In the words of the Declaration of Independence, which also drew heavily on Locke, governments derive “their just powers from the consent of the governed.” Locke also pioneered the idea of the separation of powers, and he separated the powers into an executive and a legislature. The French political philosopher Baron de Montesquieu, another major intellectual influence on the Constitution, further developed the concept of separation of powers in his treatise The Spirit of the Laws (1748), which was highly regarded by the framers of the U.S. Constitution. Montesquieu’s basic contention was that those entrusted with power tend to abuse it; therefore, if governmental power is fragmented, each power will operate as a check on the others. In its usual operational form, one branch of government (the legislative) is entrusted with making laws, a second (the executive) with executing them, and a third (the judiciary) with resolving disputes in accordance with the law. Based on the theory of Baron de Montesquieu and John Locke, the framers carefully spelled out the independence of the three branches of government: executive, legislative, and judicial. At the same time, however, they provided for a system in which some powers should be shared: Congress may pass laws, but the president can veto them; the president nominates certain public officials, but Congress must approve the appointments; and laws passed by Congress as well as executive actions are subject to judicial review. Thus the separation of powers is offset by what are called checks and balances.

2. Separation of Powers among Three Governmental Branches

Separation of powers devised by the framers of the U.S. Constitution serves the goals: to prevent concentration of power and provide each branch with weapons to fight off encroachment by the other two branches. As James Madison argued in the Federalist Papers (No.51), “Ambition must be made to counteract ambition.” Clearly, the system of separated powers is not designed to maximize efficiency; it is designed to maximize freedom. In the Constitution of the United States, the Legislative, composed of the House and Senate, is set up in Article 1; the Executive, composed of the President, Vice-President, and the Departments, is set up in Article 2; the Judicial, composed of the federal courts and the Supreme Court, is set up in Article 3. Each of these branches has certain powers, and each of these powers is limited. The First Article of the U.S. Constitution says, “All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” These words clearly define the most important power of Congress: to legislate for the United States. At the same time, the framers granted some specific powers to Congress. Congress has the power to impeach both executive officials and judges. The Senate tries all impeachments. Besides, Congress can override a Presidential veto. Congress may also influence the composition of the judicial branch. It may establish courts inferior to the Supreme Court and set their jurisdiction. Furthermore, Congress regulates the size of the courts. Judges are appointed by the President with the advice and consent of the Senate. The compensation of executive officials and judges is determined by Congress, but Congress may not increase or diminish the compensation of a President, or diminish the compensation of a judge, during his term in office. Congress determines its own members’ emoluments as well. In short, the main powers of the Legislature include: Legislating all federal laws; establishing all lower federal courts; being able to override a Presidential veto; being able to impeach the President as well as other executive officials.

Executive Power

Executive power is vested in the President by the U.S. Constitution in Article 2. The principal responsibility of the President is to ensure that all laws are faithfully carried out. The President is the chief executive officer of the federal government. He is the leader of the executive branch and the commander in chief of the armed forces. He has the power to make treaties with other nations, with the advice and consent of two-thirds of the Senate. The President also appoints, with Senate consent, diplomatic representatives, Supreme Court judges, and many other officials. Except impeachment, he also has the power to issue pardons and reprieves. Such pardons are not subject to confirmation by either house of Congress, or even to acceptance by the recipient. Another important power granted to the President is veto power over all bills, but Congress, as noted above, may override any veto except for a pocket veto by a two-thirds majority in each house. When the two houses of Congress cannot agree on a date for adjournment, the President may settle the dispute. Either house or both houses may be called into emergency session by the President. The judicial power—the power to decide cases and controversies—is vested in the Supreme Court and inferior court established by Congress. The following are the powers of the Judiciary: the power to try federal cases and interpret the laws of the nation in those cases; the power to declare any law or executive act unconstitutional. The power granted to the courts to determine whether legislation is consistent with the Constitution is called judicial review. The concept of judicial review is not written into the Constitution, but was envisioned by many of the framers. The Supreme Court established a precedent for judicial review in Marbury v. Madison. The precedent established the principle that a court may strike down a law it deems unconstitutional.

3. Checks and Balances

The framers of the U.S. Constitution saw checks and balances as essential for the security of liberty under the Constitution. They believed that by balancing the powers of the three governmental branches, the efforts in human nature toward tyranny could be checked and restrained. John Adams praised the balanced government as the “most stupendous fabric of human invention.” In his A Defense of the Constitution of Government of the United States of America (1787), he wrote, “In the mixed government we contend for, the ministers, at least of the executive power, are responsible for every instance of the exercise of it; and if they dispose of a single commission by corruption, they are responsible to a house of representatives, who may, by impeachment, make them responsible before a senate, where they may be accused, tried, condemned, and punished, by independent judges.” (Isaak 2004:103-104) So the system of checks and balances was established and became an important part of the U.S. Constitution. With checks and balances, each of the three branches of government can limit the powers of the others. This way, no one branch is too powerful. Each branch “checks” the powers of the other branches to make sure that the power is balanced between them. The major checks possessed by each branch are listed below.

Congress

1. Can check the president in these ways:
   1. By refusing to pass a bill the president wants
   2. By passing a law over the president’s veto
   3. By using the impeachment powers to remove the president from office
   4. By refusing to approve a presidential appointment (Senate only)
   5. By refusing to ratify a treaty the president has signed (Senate only)
2. Can check the federal courts in these ways:
   1. By changing the number and jurisdiction of the lower courts
   2. By using the impeachment powers to remove a judge from office
   3. By refusing to approve a person nominated to be a judge (Senate only)

President

1. Can check Congress by vetoing a bill it has passed
2. Can check the federal courts by nominating judges

Courts

1. Can check Congress by declaring a law unconstitutional
2. Can check the president by declaring actions by him or his subordinates to be unconstitutional or not authorized by law

By distributing the essential powers of the government among three separate but interdependent branches, the Constitutional framers ensured that the principal powers of the government, legislative, executive and judicial, were not concentrated in the hands of any single branch. Allocating governmental authority among three separate branches also prevented the formation of too strong a national government capable of overpowering the individual state governments. In order to modify the separation of powers, the framers created a best-known system—checks and balances. In this system, powers are shared among the three branches of government. At the same time, the powers of one branch can be challenged by another branch. As one of the basic doctrines in the U.S. Constitution, separation of powers and a system of checks and balances contribute to a stable political situation in the United States.

Separating Powers between the Federal Government and the States

As is mentioned above, the United States was in a chaotic state after the American Revolution. Under the Articles of Confederation, all of the thirteen states only had a kind of very loose connection. They were like thirteen independent countries, and could do things in their own ways. They had their own legal systems and constitutions, made their own economic, trade, tax and even monetary policies, and seldom accepted any orders from the central government. Localism made the state congresses set barriers to goods from other states, thus trade between states could not develop. At the same time, the central government did not have any important powers to control the individual states well. As time went by, the old system became more and more adverse to the stability and development of this young country. Many Americans viewed a number of grave problems as arising from the weakness of the Confederation. They thought the Confederation was so weak that it was in danger of falling apart under either foreign or internal pressures. They appealed for reforming the governmental structure and establishing a stronger central government. This government should have some positive powers so that it could make and carry out policies to safeguard state sovereignty against foreign violations and to protect the people’s interests. This idea was embodied in the U.S. Constitution: The powers of the national government and the states were divided. The central government was specifically granted certain important powers while the power of the state governments was limited, and there were certain powers that they shared. All those powers granted to the Federal Government by the U.S. Constitution are enumerated principally as powers of Congress in Article I, Section 8. These powers can be classified as either economic or military. As is known to all, economic and military power are fundamental and essential to a government. Possessing such powers, the U.S. central government was capable of controlling the country well, thus keeping up a stable political situation and promoting the economic development. Economic powers delegated to the Federal Government include the authority to levy taxes, borrow money, regulate commerce, coin money, and establish bankruptcy laws. In Article I, Section 8, the Constitution writes, “The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United State; …to borrow money on the credit of the United States; to regulate commerce with foreign nations, and among the several States, and with the Indian tribes; to establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States; to coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures.” According to this stipulation, the Federal Government has gathered the most important economic power into its own hands: with the right to collect taxes directly, the Federal Government could pay its debt and provide funds for the nation’s common defense and general welfare; with the right to issue uniform currency and to determine the value of foreign currencies, the Federal Government could control the money supply and restrain inflation; with the right to regulate trade with foreign nations and among the states, the Federal Government became able to control the economic situation of the country. The stipulation about commerce regulation won strongest support from big cities and centers of manufacturing industry and commerce, such as New York, Philadelphia and Boston, because they knew that the regulation of the central government would be quite helpful for the sale of their products. Alexander Hamilton, one of the most active representatives in the Constitutional Convention, pointed out that free trade in the whole nation was very profitable for any kind of business. For example, when the local market was weakened, the markets in other states and areas of the country would support the sale of the producers, thus their business could keep developing. Hamilton concluded that any farsighted businessman would see the power of the unity of the country, that they would find the unity of the whole nation would be much better than the separation of the thirteen states.

Power to Declare War

Certain military powers granted to the Federal Government involve declaring war, raising and supporting armies, regulating and maintaining navies, and calling forth the militia. In Article I, Section 8, the Constitution stipulates, “The Congress shall have power to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water; to raise and support armies, …to provide and maintain a Navy; to make rules for the government and regulation of the land and naval forces; to provide for calling forth the militia to execute the laws of the Union, suppress insurrections and repel invasions; to provide for organizing, arming, and disciplining the militia….” With these powers, the Federal Government can not only protect the land and provide guarantee for the development of the country, but also create conditions to invade other countries on the grounds that it has the power to declare war, grant letters of marque and reprisal. The framers of the U.S. Constitution regarded the military power of the Federal Government as a tool to protect the domestic interests of their country from foreign invasion. John Jay, one of the three writers of “The Federalist Papers” and the first Chief Justice of the Supreme Court, even said that when a country wanted to gain something, it would engage itself in a war. Most representatives in the Constitutional Convention had realized that when the United States broke up, it would easily become a sacrifice to its neighboring and enemy states. They saw that other countries still threatened the security of the United States. The Great Britain was unwilling to secede from America and kept military bases in the Northwest boundary of the United States. At the same time, France blockaded some important river mouths so that it could monopolize the market, and Spain also tried to blockade the Mississippi River. The European powers did not want the United States to develop into a powerful nation, or to share their market, neither in the United States itself nor abroad. The framers of the U.S. Constitution fully realized that a strong navy and land force could become not only a tool to protect the interests of the United States, but also a tool to force other countries to open their markets. A strong army would definitely make the European countries respect their country. Apart from the foreign troubles, the leaders of the United States had also seen the serious influences of clashes between different classes. They believed that in time of trouble, a strong army would be decisive. Of course, they would not ignore the danger of such domestic rebellions as Shays’ Rebellion. When talking about the danger of rebellions, James Madison said, “I have noticed a kind of unhappy people scattered in some states. They degrade under the human standard when the political situation remains steady; but when the society is in chaos, they would provide their fellow people with a great force.” (Smith 1986:194) So the rulers of the country needed a strong army to suppress the revolt of these “unhappy people”, and to maintain a stable domestic political situation. The U.S. Constitution grants so many specific powers to the Federal Government, at the same time, lists a rather large number of things that the Federal Government is not allowed to do. Evidently, the framers were afraid that too strong a central government would easily bring about autocracy. In order to restrict the authority of the central government, the framers wanted to make it clear in the Constitution that certain powers were emphatically denied to the Federal Government. Restrictions of the powers of the Federal Government are listed below:

1. No exercise of powers not delegated to it by the Constitution.
2. No payment from the Treasury except under appropriations made by law.
3. All duties and excises must be uniform throughout the United States.
4. No tax or duty to be laid on articles exported from any state.
5. No appointment of a senator or representative to any civil office which was created while he was a member of Congress or for which the amount of compensation was increased during that period.
6. No preferences to the ports of one state over another in regulation or tax collection.
7. No titles of nobility to be granted by the U.S. government, or permitted to be granted to government officials by foreign states.
8. No bill of attainder or ex post facto law to be passed.

When the Constitution granted the Federal Government certain powers, the framers also considered reducing the power of the state governments, so that the central government could force the states to take unified steps if necessary. In Article I, Section 10, the Constitution stipulates, “No State shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make any thing but gold and silver coin a tender in payment or debts….No State shall, without the consent of the Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws…. No State shall, without the consent of Congress, lay any duty of tonnage, keep troops, or ships of war in time of peace, enter into any agreement or compact with another State, or with a foreign power, or engage in war….” According to this clause, the states were deprived of the power to issue currency, to levy taxes freely, to keep troops in time of peace, to make a compact of agreement with another state of the U.S., or with a foreign state, and to engage in war. With the prohibition of the states from issuing currency, the United States could now avoid inflation and depreciation of currency caused by unregulated money supply. With the restriction of the states from levying taxes freely, the obstacles of the commerce were removed. Now the state congresses did not have the power to collect heavy taxes freely on goods from other states any more, thus the commerce in the United States began to thrive. With the prohibition of the states from keeping troops in time of peace and engaging in war, the territorial integrity of the United States could be guarded, and the Union could be maintained. As the power of the state governments was limited, people’s confidence in their central government was greatly strengthened. The society of the United States was being led onto a right path of development. Although the power is restricted, the states still possess some necessary powers and exercise important functions in the United States. The Tenth Amendment of the U.S. Constitution indicates that the states possess those powers that are not given to the Federal Government or prohibited to the states. The Tenth Amendment stipulates, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” State powers then are called reserved powers. Reserved powers are interpreted as the right to establish schools and supervise education, regulate intrastate commerce, conduct elections, establish local government units, and borrow money. In addition, a broad and generally undefined “police power” enables the states to take action to protect and promote the health, safety, morals, and general welfare of their inhabitants. All of these are functions that directly affect Americans every day and in every part of their lives. There are still some powers that both the national and state governments can exercise. They are called concurrent powers, which include the power to tax and borrow money, to take property for public purposes, to enact bankruptcy laws, and to establish laws and courts. Thus in the course of the U.S. Constitutional Legislation, a federal system was created by separating power between two levels of government, state and national. According to the Constitution, the Federal Government was granted certain powers, the states were given certain powers and there were certain powers that they shared. In order to overcome a series of domestic crises and keep a stable political situation, a strong central government was created. This central government was granted certain important powers while the power of the state governments was limited. The U.S. Constitution has remained in force because its framers successfully separated and balanced governmental powers to safeguard the interests of majority rule and minority rights, of liberty and equality, and of the central and state governments. For over two centuries it has provided the basis for development of the United States and a guarantee for the stability of the country.

References

1. Bishop, Donald M. (1985). Living Documents of American History [C]. Beijing: Press and Cultural Section U.S. Embassy.
2. Jay, John; Madison, James and Hamilton, Alexander (1979). THE FEDERALIST—A Comment On THE CONSTITUTION OF THE UNITED STATES [C]. New York: The Modern Library.
3. Locke, John (1690). Second Treatise of Government [M]. Indianapolis: Hackett Publishing Company, Inc.
4. Isaak, Robert (2004). American Political Thinking: Readings from the Origins to the 21st Century [C]. Beijing: Peking University Press.
5. Smith, James Morton(1986). Jefferson and Madison [M]. New York: Penguin Books USA Inc..

About the Author

Xiaohong Wei is a full-time staff member at Sichuan Agricultural University, China, where she teaches English. She holds a B.A in English Language and Literature（Sichuan International Studies University, China）, and a M.A degree in Foreign Linguistics and Applied Linguistics (Sichuan University, China). For more than ten years, she has been working as a teacher at Sichuan Agricultural University. Her research interests include intercultural studies, transfer theory, as well as culture teaching and learning. She has been in charge of and fulfilled 3 scientific research projects , and participated in 6 national and provincial research projects. She has published two book chapters and more than 20 articles at academic journals, especially of some renowned universities in China. Addressee: Xiaohong Wei Mailing address: Xinkang Road 46#, Yucheng District Department of Foreign Languages, Sichuan Agricultural University, Ya’an, Sichuan, China Post code: 625014