The political significance of the Great Compromise and the Three-Fifths Compromise was that they restored the alliance of the southern planters and northern merchants. The Great Compromise reassured those of both groups who feared that a new governmental framework would reduce their own local or regional influence, and the Three-Fifths Compromise temporarily defused the rivalry between the groups. Their unity secured, members of the alliance supporting the establishment of a new government moved to fashion a constitutional framework consistent with their economic and political interests.
As we saw in the previous section, the framers sought to establish an effective government, strong enough to maintain order, promote commerce, protect property, and defend the nation from foreign enemies. This goal led the framers to make the presidency a powerful position, to give federal courts and not state courts the last word in judicial decisions, and to establish federal control over commerce and finance. Some framers, however, were concerned that small groups of social and economic elites would seize political power, while others feared that populists and radicals would take control of the government by stirring up mob violence among the lower classes.
To ensure that the government would be unlikely to oppress its citizens, whether on behalf of self-serving elites or of rampaging majorities, the framers embraced such principles as separation of powers, checks and balances (giving each branch of government some power over the others), bicameralism (the division of Congress into two chambers), and federalism—each of which we will examine in the discussion that follows. Though these divisions of power would reduce governmental efficiency and effectiveness, the framers wanted to ensure that governmental power could not be easily abused.
The framers also incorporated popular representation into the new government’s framework. Even delegates distrustful of ordinary citizens recognized that without those citizens’ consent, the new government would be rejected by the states. Fearing excessive democracy, however, the framers sought to blunt the influence of popular representation through a system of indirect elections and other devices. Some of these rules, such as the appointment of senators and electors by the state legislatures (rather than direct election by the people), have been abandoned in favor of popular voting. Others, such as the Electoral College, remain defining features of the American institutional structure.
Let’s now assess the major provisions of the Constitution to see how each affects the interplay of effective governance and representation.
The Legislative Branch
The first seven sections of Article I of the Constitution provided for a Congress consisting of two chambers: a House of Representatives and a Senate. Members of the House of Representatives were given two-year terms in office and directly elected by citizens—though generally, only White males had the right to vote. State legislatures were to appoint members of the Senate for six-year terms (this system was changed in 1913 by the Seventeenth Amendment, providing for direct election of senators), and the terms were staggered so that the appointments of one-third of the senators expired every two years. The Constitution assigned somewhat different tasks to the House and Senate. Though approval by both bodies is required for the enactment of a law, the Senate alone can approve treaties and presidential appointments, and only the House can initiate bills to raise revenue.
The character of the legislative branch reflects the framers’ major goals. The House of Representatives was designed to be directly responsible to the people in order to encourage popular support for the new Constitution and to show ordinary citizens that their views would be directly represented in lawmaking. This was essential given the importance of representation in America’s colonial history. At the same time, to guard against “excessive democracy,” the power of the House was checked by the Senate, whose members were to be appointed for long terms rather than elected for short terms.
Staggered terms in the Senate would make that body especially resistant to popular pressure, even if that pressure came indirectly via the state legislatures. Thus, the structure of the legislative branch was designed to contribute to governmental power, promote popular consent for the new government, and at the same time, place limits on the popular political movements that many framers saw as a radical threat to the established economic and social order.
The Powers of Congress and the States.
The issues of power and consent were important throughout the Constitution. Section 8 of Article I specifically listed the powers of Congress, which include the authority to collect taxes, to borrow money, to regulate commerce, to declare war, and to maintain an army and navy. By granting it these powers, the framers indicated clearly that the new government would be far more influential than its predecessor. At the same time, by giving these important powers to Congress rather than to the executive branch, the framers sought to reassure citizens that their views would be fully represented whenever the government exercised its new powers.
As an additional guarantee to the people that the new government would pose no threat, the Constitution implied that any powers not listed were not granted to the government at all. This is the doctrine of expressed powers: the Constitution grants only those powers specifically expressed in its text. But the framers wanted an active and powerful government, so they included the necessary and proper clause, sometimes known as the elastic clause, which signified that the expressed powers were meant to be a source of strength to the national government, not a limitation on it. Each power could be used to the fullest extent, although no additional powers could be assumed by the national government without a constitutional amendment. Any power not specifically mentioned was stated to be “reserved” to the states (or the people).
The Executive Branch
The Constitution established the presidency in Article II. As Alexander Hamilton put it, the presidential article aimed at “energy in the Executive.” It did so in an effort to overcome the natural stalemate that was built into both the division of the legislature into two chambers and the separation of powers among the legislative, executive, and judicial branches. The Constitution afforded the president a measure of independence both from the people and from the other branches—particularly Congress.
Some of the framers had wanted a multiperson executive or an executive council to avoid the evils that many associated with a monarch. However, Hamilton argued that “energy” required a single rather than a plural executive. While abuse of power should be guarded against by checks and balances and other devices, energy also required that the executive hold “competent powers” to direct the nation’s business.5 These would include the unconditional power to accept ambassadors from—that is, to “recognize”—other countries; the power to negotiate treaties subject to Senate approval; the unconditional right to grant reprieves (temporary delays in criminal punishments) and pardons of those convicted, except in cases of impeachment; and the power to appoint major officials in government departments, to convene Congress in special session, and to veto congressional legislation. (The veto power is not absolute, because Congress can override it by a two-thirds vote. Analyzing the Evidence on pp. 40–41 explores the various points at which legislation can be halted in the United States as compared with other countries.)
The framers decided that the energy required to overcome government stalemates required a single executive, rather than an executive council. In 1789, George Washington was unanimously elected as America’s first president.
analyzing the evidence
Constitutional Engineering: How Many “Veto Gates”?
Contributed by Steven L. Taylor,Troy University, and Matthew S. Shugart,University of California, Davis
Any given constitution contains a number of individual elements that interact to produce a specific policy-making environment. These parameters determine how policy decisions are made as well as which political actors can stop them from proceeding through the process. One area of comparative constitutional studies involves how many veto gates a system contains. A veto gate is an institution that serves as a point in the legislative process where the progress of a proposal can be halted. This notion conceives of the legislative process as being made up of one or more such gates that have to be opened to allow an idea to “flow” past on its way to becoming law. Each gate, however, is locked and can be opened only by institutional actors who hold the keys.
The simplest possible model of such a system would be an absolute dictator who has to consult only their own preferences before acting. Such a ruler would be like a person holding one key to open a single gate. Democratic governance, on the other hand, is a system wherein more than one player is likely to have one of several keys needed to open a given gate (for example, political parties in a legislative coalition that must vote together to pass a law).
The exact mix of institutional elements in a given constitution has a profound impact not only on how policy is made but also on what kinds of policies are made. A system with more veto gates and players will require more negotiation and compromise than a system with fewer such actors. This can also mean that actors can use veto gates to obstruct policy making if they are unwilling to negotiate a compromise. The more veto gates in a system, the more the chances for obstruction increase. When counting veto gates, we can ask three questions:
Presidential veto:Is there an elected president who can veto legislation? In parliamentary systems, like the United Kingdom and India, there is no elected presidency at all. Other systems have elected presidents who may be important in some respects but who are not empowered with a veto (for instance, France). The strongest presidents are both elected and have a veto, such as the U.S. president.
Number of legislative chambers:How many legislative chambers are there? Does the government have one chamber (unicameral) or two (bicameral)? If there is only one legislative chamber, as in Costa Rica and Denmark, then obviously there can be only one veto gate among legislative actors. We need, however, a final question to differentiate among forms of bicameralism.
Symmetry of chambers:If there is a second chamber, are the two symmetrical in their powers? Many second chambers are less powerful in their systems than the U.S. Senate, which is symmetrical in power with the House of Representatives. Some other bicameral legislatures are asymmetrical, meaning the second chamber has minimal powers beyond delaying power, as in Austria, or it has substantial powers in some areas but not others, as with the Canadian Senate and the United Kingdom’s House of Lords.
* Mexico’s second chamber has no power over spending bills.
Italicized cases are federal. Bold cases lack judicial review of legislation.
We can see from the table of 38 established democracies that there are multiple ways in which national constitutions can configure the lawmaking process in terms of the type and number of veto gates. Moreover, the United States is not typical. Only 8 of these 38 democracies have three veto gates in the lawmaking process. Most other established democracies have fewer veto gates, although several have multiple veto players—such as frequent coalition governments where political parties have to compromise with one another. This combination of veto gates and veto players has a direct effect on policy and may help us understand why policies are different across different democracies.
Beyond the legislative process, there are other constitutional factors that can create veto gates for policy implementation: a federal system may empower states to block the implementation of policy passed at the national level; supreme courts or constitutional tribunals may have the ability to declare laws unconstitutional, and therefore null and void. All of these factors derive from constitutional design.
SOURCES: Steven L. Taylor, Matthew S. Shugart, Arend Lijphart, and Bernard Grofman, A Different Democracy: American Governmentin a Thirty-One-Country Perspective (New Haven, CT: Yale University Press, 2014); and authors’ classifications.
The United States Congress is often criticized for gridlock preventing it from movinglegislation forward. In what countries would you expect to see similar issues? In what countries would you expect it to be easier to pass legislation?
At the same time, the framers attempted to help the president withstand excessively democratic pressures by filling the office through indirect rather than direct election (through a separate Electoral College). The extent to which the framers’ hopes were realized is the topic of Chapter 6.
The Judicial Branch
Article III established the judicial branch. This provision reflects the framers’ concern with giving more power to the new national government and checking radical democratic impulses while guarding against potential interference with liberty and property by the government itself.
The framers created a court that was to be literally a supreme court of the United States and not merely the highest court of the national government. The Supreme Court was given the power to resolve any conflicts that might emerge between federal and state laws and to determine which level of government—national, state, or both—could exercise a particular power. In addition, the Court was given jurisdiction over controversies between citizens of different states. The long-term significance of this provision was that as the United States developed a national economy—one based increasingly on commerce between rather than within states—it came to rely more and more on the federal rather than the state courts for resolution of disputes.
Judges were given lifetime appointments to protect them both from pressure by politicians and the public and from interference by the other branches of government. To further safeguard judicial independence, the Constitution also prohibited Congress from reducing the salary of any judge while in office. But federal judges would not be totally immune to politics or to the other branches, for the president was to appoint them, and the Senate would have to approve the appointments. Congress would also have the power to create inferior (lower) courts, to change the federal courts’ jurisdiction (the geographic area or types of cases over which they had authority), to add or subtract federal judges, and to even change the size of the Supreme Court.
The Constitution does not specifically mention judicial review, the power of the courts to render the final decision when there is a conflict over the interpretation of the Constitution or of laws. This conflict could be between the courts and Congress, the courts and the executive branch, or the federal government and the states. Scholars generally feel that judicial review is implicit in the existence of a written Constitution and in the power given to the federal courts over “all Cases . . . arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority” (Article III, Section 2). The Supreme Court eventually assumed the power of judicial review. Its assumption of this power, as we will see in Chapter 8, was based not on the Constitution itself but on the politics of later decades and the membership of the Court.
Although the power of judicial review is not mentioned in the Constitution, the courts have assumed this power. In 2021, the Supreme Court heard arguments on Brnovich v. Democratic National Committee, which concerned voting rights established in the Voting Rights Act of 1965. The Court specifically looked at whether or not a recent Arizona law that outlawed ballet collection and out-of-precinct voting violated the voting rights established in the act.
National Unity and Power
Various provisions in the Constitution addressed the framers’ concern with national unity and power. Article IV provided for comity (recognition of one another’s laws and court decisions) among states, which we will discuss in more detail in Chapter 3. Each state was also prohibited from discriminating against the citizens of other states in favor of its own citizens, with the Supreme Court determining in each case whether such discrimination had occurred. Article IV was often cited during the COVID-19 pandemic when some state governors threatened to block out-of-state cars from entering their states.
The framers’ concern with national supremacy was also expressed in Article VI, in the supremacy clause, which provided that national laws and treaties “shall be the supreme law of the land.” This meant that all laws made under the “authority of the United States” would be superior to laws adopted by any state or local government, and that the states must respect all treaties made under that authority—a clear effort to keep the states from dealing separately with foreign nations or businesses. The supremacy clause also bound all state and local, as well as federal, officials to take an oath to support the national Constitution if disputes arose between national and state laws.
Constitutional Limits on the National Government’s Power
As we have indicated, though the framers wanted a powerful national government, they also wanted to guard against possible misuse of that power. Thus, they incorporated two key principles into the Constitution: the separation of powers and federalism (see also Chapter 3). A third set of limitations, the Bill of Rights, was added after its ratification to respond to charges that the Constitution paid too little attention to citizens’ rights.
The Separation of Powers.
No principle of politics was more widely shared among literate Americans at the time of the 1787 Founding than the principle that power must be used to balance power. The French political theorist Baron de Montesquieu (1689–1755) believed that this balance was an indispensable defense against tyranny, and his writings “were taken as political gospel” at the Philadelphia Convention.6 This principle is not stated explicitly in the Constitution, but it is clearly built into Articles I, II, and III, which provide for the following:
Three separate branches of government (Figure 2.1), including a legislative branch divided into two chambers—a bicameral legislature.
Different methods of selecting the top personnel so that each branch is responsible to a different constituency. This arrangement is intended to produce a “mixed regime,” in which the personnel of each branch of government will develop very different interests and outlooks on how to govern, and different groups in society will be assured of some access to governmental decision making.
Checks and balances, with each of the branches given some power over the others. Familiar examples are the presidential veto power over legislation and the requirement that the Senate approve high-level presidential appointments.
In addition to “separation of powers,” this system has also been described as “separated institutions sharing power,”7 thus diminishing the chance that power will be misused.
Federalism.
Federalism was a step toward greater centralization of power. Aiming to place more power at the national governmental level without completely undermining the power of state governments, the delegates devised a system of two layers of sovereignty, or independent political authority—the states and the nation—with the hope that competition between the two would limit the power of both.
The Bill of Rights.
Late in the Philadelphia Convention, a motion was made to include a bill of rights in the Constitution. After a brief debate, it was almost unanimously rejected. Most delegates felt that since the federal government was already limited to its expressed powers, further protection of citizens from it was unnecessary. Many argued that it was the states that should adopt bills of rights, because their greater powers needed greater limitations. But almost immediately after the Constitution was ratified, a movement arose to adopt a national bill of rights. This is why the Bill of Rights, adopted in 1791, is the first 10 amendments to the Constitution rather than part of the body of it. We explore the Bill of Rights further in Chapter 4.
FIGURE 2.1
The Separation of Powers
Amending the Constitution
The Constitution established procedures for its own revision in Article V. The amending process is so difficult that it has succeeded only 17 times since 1791, when the first 10 amendments were adopted. Many others have been proposed, but fewer than 40 have even come close to fulfilling the Constitution’s requirement of a two-thirds vote in Congress, and only a fraction of those have approached adoption by three-fourths of the states. The Constitution could also be amended by a constitutional convention, but no national convention has been called since the Philadelphia Convention of 1787; Congress has submitted all proposed amendments to the state legislatures for ratification.
Ratifying the Constitution
Rules for ratification of the Constitution of 1787 made up Article VII of the Constitution. This provision actually violated the procedure for constitutional change in the Articles of Confederation. For one thing, it adopted a nine-state requirement for ratification in place of the unanimity required by the Articles. For another, it provided for ratification by special state conventions rather than by state legislatures. All the states except Rhode Island eventually did set up conventions to ratify the Constitution.
The Fight for Ratification
The first hurdle faced by the new Constitution was ratification by 13 conventions of delegates elected by the White, propertied male voters of each state. The struggle for ratification thus included 13 separate campaigns, each influenced by local as well as national considerations. In every state, two sides faced off, calling themselves Federalists and Antifederalists.8 The Federalists supported the Constitution and preferred a strong national government. The Antifederalists opposed the Constitution and preferred a more decentralized government, in which state and local needs would come first. The Federalists and Antifederalists had somewhat different views of society. The Antifederalists feared government by elites who would use their power to oppress ordinary citizens. The Federalists feared mob rule that would threaten property rights. Thus, the Antifederalists feared minority tyranny, while the Federalists feared tyranny by the majority.
Under the name “Publius,” Alexander Hamilton, James Madison, and John Jay wrote 85 articles in New York newspapers supporting ratification of the Constitution. These Federalist Papers, as they are known today, defended the principles of the Constitution and sought to dispel the fears of an oppressive national authority.9 The Antifederalists, however, such as Richard Henry Lee and Patrick Henry of Virginia, and George Clinton of New York, argued that the new Constitution betrayed the Revolution and was a step toward monarchy. They wanted a bill of rights to protect against government.
By the beginning of 1788, the conventions of five states had ratified the Constitution. Delaware, New Jersey, and Georgia approved it unanimously; Connecticut and Pennsylvania approved it by wide margins. Opposition was overcome in Massachusetts by the promise of a bill of rights to be added to the Constitution at a later date. Ratification by Maryland and South Carolina followed. In June 1788, New Hampshire became the ninth state to ratify, putting the Constitution into effect. But for the new national government to have real power, Virginia and New York needed to approve it. After impassioned debate and many recommendations for future amendments, especially for a bill of rights, the Federalists mustered enough votes for ratification in Virginia in June and New York in July. North Carolina joined the new government in 1789, after Congress actually submitted a bill of rights to the states for approval, and Rhode Island held out until 1790 before finally voting to become part of the new union.
The last paragraph of Article I, Section 8, which gives Congress the power to make all laws needed to exercise the powers listed in Section 8. Also called the elastic clause.
A clause of Article VI of the Constitution stating that all laws and treaties approved by the national government are the supreme laws of the United States and superior to all laws adopted by any state or local government.
Those who favored strong state governments and a weak national government and who were opponents of the constitution proposed at the Constitutional Convention of 1787.
Max Farrand, The Framing of the Constitution of the United States (New Haven, CT: Yale University Press, 1962), p. 49.Return to reference 6
Richard E. Neustadt, Presidential Power: The Politics of Leadership (New York: Wiley, 1960), p. 33.Return to reference 7
For an excellent analysis of the ratification campaigns, see William H. Riker, The Strategy of Rhetoric: Campaigning for the American Constitution (New Haven, CT: Yale University Press, 1996).Return to reference 8
The United States Congress is often criticized for gridlock preventing it from movinglegislation forward. In what countries would you expect to see similar issues? In what countries would you expect it to be easier to pass legislation?
