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September 2014 Policy Study, Number 14-4


A Citizens Introduction to Federalism: Federalism and the Future of Constitutional Government


Part II: The Structures of the Constitution:

Rule of Law, Separation of Powers, and Checks and Balances



The Constitution that was drafted was a document of compromise and unique structures designed to protect liberty and prevent political corruption and abuse. It is important to remember that the Constitution is a written document that specifically limited the powers of the national government. The Founders also placed important structures or “constitutional devices” such as separation of powers, checks and balances, federalism, and the rule of law to “restrain the federal government’s powers.”[34] James McClellan states that “an understanding of these unwritten concepts is essential to understanding of the meaning and purpose of the Constitution.”[35] 


The Constitution, which is based on the rule of law, is important because “all people who hold political authority are subject to the law of the land, and their public actions must conform to the Constitution and to certain principles of law.”[36] Although history has numerous examples of abuse of political power and corruption, the Framers understood that the rule of law is essential to preserving liberty. The United States is known as “a government of laws and not men,” meaning that no public official is above the law.[37] Both public officials and citizens are required to live by the rule of law, and in the case of public officials, they must swear an oath to follow, protect, and defend the Constitution. The Founders understood that human nature was flawed and that no system of government created by man could be perfect, but as McClellan notes:


The Constitution of the United States has never been suspended or successfully defied on a large scale. Thus the rule of law has usually governed the country since 1787 — a record true of very few other countries of the world.[38]


This is evidence of the genius of the Founders, whose Constitution survived a brutal Civil War and multiple constitutional crises. It also points to the constitutional culture of the American people, who even during the colonial period, believed in the importance of self-government and the rule of law. The American Revolution itself was about these constitutional principles, which is very unique in world history compared to other revolutions such as the French Revolution or the Communist Revolution in Russia.


James McClellan states that the principles of separation of powers, checks and balances, federalism, and the rule of law “are at the heart of the American Constitution.”[39] In examining these constitutional structures it is important to start with the Preamble to the Constitution, which demonstrates the Framers’ intent for the Constitution:


We the People of the United States, in Order to form a more perfect Union, establish Justice, ensure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.[40]


The Constitution states that “We the People” are sovereign, and it created a republican form of government based upon representation. The Preamble of the Constitution became a significant departure from the Articles of Confederation. Matthew Spalding explains that “We the People” “is very different from the opening of the Articles of Confederation, which speaks in the name of individual states, and represents an important shift in the understanding of constitutional sovereignty underlying the document.”[41]


Spalding further explains the significance of the Preamble:


The Constitution then proclaims the broad objectives of ‘We the People,’ their reasons for constituting a new government, and the ends or purposes for which the Constitution is formed. Of these six reasons, two are immediate requirements of safety and security common to every sovereign nation — ‘insure domestic tranquility’ and ‘provide for the common defense’— and two look forward to building a particular society that upholds the rule of law and fosters prosperity and well-being for all citizens — ‘establish Justice’ and ‘promote the General Welfare.’ The other two objectives grandly express the Founders’ hopes for their nation’s and their people’s future: the Constitution is meant to ‘form a more perfect union’ and ‘secure the blessings of liberty to ourselves and our posterity.’[42]


The Constitution is rather a short document which is “divided into seven parts, or articles, each dealing with a general subject,” and “each article is further divided into sections and clauses.”[43] The Constitution also provides specific delegated and enumerated powers to the national government as Spalding explains:


Despite the popular term ‘states’ rights,’ no government (federal, state, county, or local) actually possesses any rights at all. Recall from the Declaration of Independence that persons are endowed with unalienable rights. Governments only possess powers, which in legitimate governments are derived from the consent of the governed. In particular, governments only have those powers that are given (or delegated) to them by the people. Individuals, who possess rights by nature, hold those powers and may grant some of them to the government. The point is implicit throughout the Constitution…[44]


In regard to representation, the Constitution provided that the larger states would benefit from the membership of the House of Representatives, because it is determined by population and elected directly by the people. The Senate had equal representation with each state Legislature selecting two Senators, which would bring equality to smaller states who otherwise would have little representation in the House. Besides the bi-cameral legislature, the Constitution also created two other branches of government: the executive (the President and Vice President) and judicial (the Supreme Court).


The three branches of government would be listed in the Constitution as follows: Article I, the legislative branch, Article II, the executive branch, and Article III, the judicial branch. Each branch would be separate, have specific powers, and have the ability to “check” the other branches. The Founders understood that human nature is flawed and no perfect government could ever be designed by mankind. As James Madison wrote in Federalist No. 51:


Ambition must be made to counteract ambition. The interest of the man, must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this; you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.[45]


James McClellan wrote that “from Christian teaching, the Framers had learned, then, that human nature is not to be trusted.”[46] The Founders’ pessimistic view of human nature was essential to the structural designs of separation of powers and checks and balances within the Constitution.  The Founders were worried about factions (special interests) and majorities that could harm the minority. Bruce S. Thornton argues that: 

the solution of the Framers was the mixed government in which the democratic House of Representatives, the aristocratic Senate (chosen by the state legislatures), and the monarchial President (chosen by the Electoral College) would, along with the judiciary, divide the powers and functions of government and thus check and balance the tendency of each branch to maximize its power at the expense of the people’s freedom.[47]


The Founders understood that separation of powers is essential — because of human nature each branch of government needed to have separate powers and the ability to “check” one another to prevent tyranny. The Constitution lists the powers of each branch of government, but as history has demonstrated these are not always clear. One recent example is the debate over President Barack Obama’s use of executive power to go around Congress to ignore existing law, change a law to his liking, or outright make law through executive orders.




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