The political significance of the Great Compromise and the Three-Fifths Compromise was that they restored the unity of the northern merchants and southern planters, paving the way for the creation of a new government. The Great Compromise reassured those of both groups who feared that their own local or regional influence would be threatened, and the Three-Fifths Compromise temporarily defused the rivalry between the groups over slavery. Their unity secured, members of the alliance moved to fashion a constitution for a new government consistent with their economic and political interests.
The framers of the Constitution understood that well-designed institutions make it easier to achieve collective goals. They also understood that the institutions they built could affect political outcomes for decades, if not centuries, to come. (The Policy Principle box on p. 55 examines the effects of the Great Compromise throughout American history.) Accordingly, the framers took great care to construct institutions that, over time, would help the nation accomplish certain important political purposes.
First, the framers wanted a government strong enough to promote commerce and protect property from radical state legislatures. This goal became the basis for the institution of national control over commerce and finance, the establishment of national judicial supremacy, and the effort to construct a strong presidency. Second, the framers sought to prevent the threat posed by the “excessive democracy” of the state and national governments under the Articles of Confederation. Here again, the framers’ historical experience mattered. This goal inspired such constitutional principles as a bicameral legislature (the division of Congress into two chambers), checks and balances, staggered terms of office, and indirect election (selection of the president by an Electoral College rather than directly by the voters). Third, lacking the power to force the states or the public at large to accept the new form of government, the framers sought to identify principles that would help secure support. This goal became the basis for the direct popular election of representatives and, later, the addition of the Bill of Rights. Finally, the framers wanted to ensure that the new government did not use its power to pose even more of a threat to citizens’ liberties and property rights than did the radical state legislatures they feared and despised. To prevent the new government from abusing its power, they incorporated into the Constitution such principles as the separation of powers and federalism.
The framers provided us with a grand lesson in purposeful behavior. They came to Philadelphia united by a distaste for government under the Articles and animated by the agitation following Shays’s Rebellion. They didn’t always agree on what they disliked about the Articles or on how to proceed—hence the historic compromises. But they did believe that fostering commerce and protecting property could be served by a set of institutional arrangements better than the one provided by the Articles. They believed that both too much democracy, on the one hand, and too much governmental power, on the other, could threaten the common good, and they strove to find instruments and principles that balanced these forces. Let’s assess the major provisions of the Constitution’s seven articles to see how each one relates to these objectives.
the policy principle
THE CONSTITUTION AND POLICY OUTCOMES
What if representation in the Senate was based on state population?
The policy principle tells us that political outcomes are the products of individual preferences and institutional procedures. One extension of this principle is the idea that individuals involved in politics try to create institutions that will help them achieve policy outcomes they favor and prevent policy outcomes they oppose. For any political actors, the right institutional arrangements can put them at an advantage—and their opponents at a disadvantage—in conflicts over policy for many years.
This idea is illustrated by the struggles at the Constitutional Convention. Delegates from the smaller states thought their states had much to gain by creating legislative institutions that gave each state an equal vote regardless of population. The larger states, however, especially Virginia, Massachusetts, New York, and Pennsylvania, were centers of commerce; their delegates believed that the new government’s commercial policies would be more likely to serve those states’ interests if its legislative institutions reflected their advantage in population. Nevertheless, representatives of both groups of states agreed that a new government was likely to produce better policies than those developed under the Articles of Confederation, so they were willing to compromise. They eventually settled, in what is known as the Great Compromise, on an institutional arrangement that gave the large states more weight in the House of Representatives and the small states equality of representation in the Senate.
This Great Compromise has affected policy outcomes throughout American history, giving less-populous states disproportionate influence in the legislative process. For instance, the late Yale political scientist Robert A. Dahl thought that slavery survived longer than it would have otherwise because the small-population southern states had disproportionate influence. The House of Representatives passed eight antislavery measures between 1800 and 1860, but all died in the Senate. Moreover, the civil rights movement of the mid-twentieth century was slowed by senators representing small-population states.
Today, the 40 million citizens of California, 29 million citizens of Texas, and 20 million citizens of New York are each represented by two senators, as are the 578,000 inhabitants of Wyoming, 644,000 Vermonters, and 780,000 North Dakotans. This disparity means that groups and interests in the latter three states exercise influence in the Senate far out of proportion to their states’ populations. Overrepresentation in the Senate is one reason why the smaller states and their public agencies receive far more federal aid per capita than the larger states do. In a recent year, residents of Wyoming received $4,180 per capita while Texans and Californians each received a bit over $1,700. Also in recent years, bills designed to reform the immigration system, alter U.S. climate policy, and increase disclosure of campaign spending won the support of senators representing a majority of the population, but they failed to pass because those senators did not constitute a majority of votes in the Senate. After almost 250 years, the Great Compromise continues to affect public policy in the United States.
The Legislative Branch
The first seven sections of Article I of the Constitution provide for a Congress consisting of two chambers—a House of Representatives and a Senate. Members of the House of Representatives hold two-year terms of office and are elected directly by the people. Members of the Senate were originally appointed by the state legislatures (a provision changed in 1913 by the Seventeenth Amendment, which instituted direct election of senators) for six-year terms. These terms are staggered so that the appointments of one-third of the senators expire every two years. The Constitution assigns somewhat different tasks to the House and the Senate. Though the enactment of a law requires the approval of both chambers, the Senate alone can ratify treaties and approve presidential appointments. The House has the sole power to originate revenue bills.
The character of the legislative branch reflects the framers’ major goals. The House of Representatives was designed to be directly responsible to the people, to encourage popular consent for the new Constitution, and to help enhance the power of the new government. 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, rather than directly elected by the people, to serve comparatively long terms. The purpose of this provision was to avoid “an unqualified complaisance to every sudden breeze of passion, or to every transient impulse which the people may receive.”17 Staggered terms of service in the Senate, moreover, would further insulate that body from popular pressure. Because only one-third of the senators would be selected at any given time, the institution would be protected from changes in popular preferences transmitted by state legislatures, thereby preventing what James Madison called “mutability in the public councils arising from a rapid succession of new members.”18
The issues of power and consent are important throughout the Constitution. Article I, Section 8, lists the specific powers of Congress, which include the authority to collect taxes, borrow money, regulate commerce, declare war, and maintain an army and navy. By granting the legislature these powers, the framers ensured that the new government would be far more influential than its predecessor under the Articles. At the same time, by giving these important powers to Congress, the framers sought to promote popular acceptance of this critical change by reassuring citizens that their views would be fully represented whenever the government exercised its new powers.
As a further guarantee that the new government would pose no threat to the people, the Constitution implies that only those powers specifically expressed in its text are granted to the federal government; this is the doctrine of expressed powers. The national government cannot take on additional powers without a constitutional amendment. Any powers not listed are, in turn, “reserved” to the states (or the people).
Because the framers desired an active and powerful federal government, they also included the necessary and proper clause, sometimes known as the elastic clause, which grants Congress the power to make all laws that are “necessary and proper” to exercise the powers listed in Section 8. This clause signifies that the expressed powers are meant to be a source of strength to the national government, not a limitation on it. As we will see, the question of what powers the federal government can or cannot exercise is still debated today. For example, opponents of the Affordable Care Act of 2010 (also known as Obamacare) claimed that the federal government lacked the power to require Americans to purchase health insurance. The Supreme Court, however, upheld major provisions of the law.19
The Executive Branch
The Constitution establishes the presidency in Article II. According to Alexander Hamilton, this article was intended to create “energy in the Executive” in an effort to overcome the stalemates built into both the bicameral legislature and the separation of powers among the legislative, executive, and judicial branches. The Constitution affords the president a measure of independence from the people and from the other branches of government, particularly Congress.
Some of the framers wanted to install a plural executive or executive council to avoid the evils associated with a monarch. However, Hamilton argued that “energy in the Executive” required a single executive with “competent powers” to direct the nation’s business.20 These would include the unconditional power to accept ambassadors from (essentially, to “recognize”) other countries; the power to negotiate treaties subject to Senate approval; the right to grant reprieves and pardons, except in cases of impeachment; the power to appoint major departmental personnel; the power to convene Congress in a special session; and the power to veto congressional enactments. Checks and balances and other devices would be in place to guard against abuses of power. The veto power, for instance, is not absolute because Congress can override it by a two-thirds vote. (Analyzing the Evidence on pp. 60–61 explores the various points at which legislation can be halted in the United States as compared with other countries.)
A modern description of executive-legislative relations is “The president proposes; the Congress disposes.” That is, the president may propose certain items to the legislature as outlined in the Constitution, such as a treaty, a major departmental appointment, or a federal judge or justice, which are then subject to approval by the Senate. In these instances, the president is a legislative “agenda setter.” When, however, the president proposes a law or budget, it is only a “suggestion” that the legislature may choose to dispose of altogether. Such proposals are said to be “dead on arrival” because Congress marches to the beat of its own drummer.
The framers hoped to create a presidency that would give the federal government, rather than the states, the energy to take timely and decisive action to deal with public issues and problems.21 At the same time, however, the framers wanted the president to be able to withstand democratic pressures, so they designed the office to be subject to indirect election through the Electoral College. In Chapter 7 we will discuss the extent to which the framers’ hopes were realized.
The Judicial Branch
Article III of the Constitution, which establishes the judicial branch, reflects the framers’ preoccupations with enhancing the power of the national government, checking radical democratic impulses, and preventing the government from interfering with the liberty and property rights of its citizens.
The framers created a court that was to be literally a supreme court of the United States, not merely the highest court of the national government. In accordance with this intention, the Constitution gives the Supreme Court the power to resolve any conflicts that might emerge between federal and state laws. In particular, the Supreme Court has the right to determine whether a power is exclusive to the federal government, concurrent with the states, or exclusive to the states. Justice Oliver Wendell Holmes, Jr., noted the significance of this provision: “I do not think the United States would come to an end if we lost our power to declare an act of Congress void. I do think the union would be imperiled if we could not make that declaration as to the laws of the several states.”22
In addition, the Constitution assigns the Supreme Court jurisdiction over controversies between citizens of different states. The long-term significance of this provision was that, as the country developed a national economy involving residents of all states, the federal judiciary, rather than the state courts, became the primary venue for the resolution of disputes.
The Constitution stipulates that federal judges must hold lifetime appointments, a provision that protects them from popular politics and interference from the other branches. To further safeguard judicial independence, Congress is prohibited from reducing the salary of any sitting judge. These provisions do not, however, mean that the judiciary remains totally impartial to political considerations or to the other branches; the president appoints the judges and the Senate approves the appointments. Congress also has the power to create inferior (lower) courts, change the federal courts’ jurisdiction, add or subtract federal judges, and even change the size of the Supreme Court.
The Constitution makes no direct mention of judicial review—the power of the courts to determine whether the actions of the president, Congress, and the state legislatures are consistent with the Constitution. 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, as we will see in Chapter 9, not on the basis of the Constitution itself but on the basis of the politics and membership of the Court in later decades.
National Unity and Power
Various provisions in the Constitution address the framers’ concern with national unity and power, including Article IV’s provisions for comity (reciprocity) among states and among the citizens of all states. Each state is prohibited from discriminating against the citizens of other states in favor of its own citizens, and the Supreme Court is charged with resolving associated disputes. The Constitution also restricts the power of the states in favor of ensuring that the federal government holds enough power to support a free-flowing national economy. 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.
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 howpolicy 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.
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.
* Mexico’s second chamber has no power over spending bills.
Italicized cases are federal. Bold cases lack judicial review of legislation.
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.
SOURCE: Steven L. Taylor, Matthew S. Shugart, Arend Lijphart, and Bernard Grofman, A Different Democracy: American Government in a Thirty-One-Country Perspective (New Haven, CT: Yale University Press, 2014); and authors’ classifications.
The framers’ concern with national supremacy also surfaces in the supremacy clause, which provides that national laws and treaties “shall be the supreme Law of the Land” (Article VI). This means that all laws made under the “Authority of the United States” are superior to those of any state or other subdivision, and the states are expected to respect all treaties made under national authority. This provision keeps the states from dealing separately with foreign nations or businesses. The supremacy clause also binds the officials of all state, local, and federal governments to take an oath of office to support the Constitution.
Amending the Constitution
The Constitution establishes procedures for its own revision in Article V. The amendment process is so difficult that Americans have successfully used it only 17 times since 1791, when the first 10 amendments were adopted. Many other amendments have been proposed, but fewer than 40 have come close to fulfilling the Constitution’s requirement of a two-thirds vote in Congress, and only a fraction have approached adoption by three-fourths of the states. The Constitution can 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.
Any body of rules, including a national constitution, must balance the need to respond flexibly to changes with the caution not to be too flexible. An inflexible body of rules that cannot accommodate major change risks being rebelled against—a circumstance in which those in power wipe the slate clean and design new rules—or ignored altogether. Too much flexibility, however, is disastrous. It invites those who lose in everyday politics to replay battles at the constitutional level. If institutional change is too easy to accomplish, the stability of the political system becomes threatened. As the institution principle suggests, a constitution should create institutional arrangements that provide a framework for politics, not ones that specify explicit political outcomes. To determine whether a constitutional document has the right degree of flexibility, one must see if it can pass the test of time. The fact that ours has survived for more than two centuries is a point in its favor.
Ratifying the Constitution
Article VII sets forth the rules for ratification of the Constitution of 1787. This provision actually violated the amendment provisions of the Articles of Confederation. For one thing, it adopts a nine-state rule in place of the unanimous approval required by the Articles. For another, it stipulates that ratification must occur in special state conventions rather than in state legislatures. All the states except Rhode Island eventually did set up state conventions to ratify the Constitution.
Constitutional Limits on the National Government’s Power
As we have indicated, although the framers desired 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 Chapter 3). A third set of limitations, in the form of the Bill of Rights, was ratified later as a series of amendments.
The Separation of Powers. No principle of politics was more widely shared at the time of the Founding than the idea 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. His writings “were taken as political gospel” at the Philadelphia Convention. Although the separation-of-powers principle was not explicitly stated in the Constitution, the national government was structured precisely according to Article I, the legislature; Article II, the executive; and Article III, the judiciary (Figure 2.1).
However, separation of powers is nothing but mere words on parchment without a method to maintain the separation. The method laid out in the Constitution became known as checks and balances. Each branch has not only its own powers but also some power over the other two branches. Among the most familiar checks and balances are the president’s veto power over Congress and Congress’s control over presidential appointments to high executive posts and the judiciary. Congress also has power over the president through its control of appropriations and the Senate’s right to approve treaties. The judiciary has the assumed power of judicial review over the other two branches.
Another feature of the separation of powers is the principle of giving each branch a distinctly different constituency, what theorists such as Montesquieu called a “mixed regime.” As such, the president is chosen indirectly by electors, the House by popular vote, the Senate (originally) by state legislatures, and the judiciary by presidential appointment. Because each branch is held accountable by a different group, the members of each branch would develop very different outlooks on how to govern, definitions of the public interest, and alliances with private interests.
FIGURE 2.1
THE SEPARATION OF POWERS
Federalism. Compared with the Articles of Confederation, federalism was a step toward greater centralization of power. Seeking to place more power at the national level without completely undermining the power of state governments, the framers devised a system of two sovereigns, or supreme powers—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 turned down. Most delegates felt that, because the federal government was already limited to the powers expressed in the Constitution, no further protection for citizens was necessary. These delegates argued that the states should adopt bills of rights instead because their greater powers needed greater limitations. But almost immediately after the Constitution was ratified, a movement to adopt a national bill of rights arose. This is why the Bill of Rights, adopted in 1791, makes up the first 10 amendments to the Constitution and is not incorporated into the body of it. We will further explore the Bill of Rights in Chapter 4.
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.
The power of the courts to determine whether the actions of the president, the Congress, and the state legislatures are consistent with the Constitution.
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.
The ways in which each branch of government is able to influence the activities of the other branches.
Endnotes
Clinton L. Rossiter, ed., The Federalist Papers; Alexander Hamilton, James Madison, and John Jay (New York: New American Library, 1961), no. 71 (Alexander Hamilton), p. 464.Return to reference 17
