2.4 Describe the framework for government expressed in the Constitution.

The U.S. Constitution's opening line, "We the People," ended, at least for the time be­ing, the question of the source of the government's power: it came directly from the people. The Constitution then explained the need for the new outline of government: "in Order to form a more perfect Union" indirectly acknowledged the weaknesses of the Articles of Confederation in governing a growing nation. Next, the optimistic goals of the Framers for the new nation were set out: to "establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity," followed by the formal creation of a new government: "do ordain and establish this Constitution for the United States of America."

On September 17, 1787, the delegates approved the Constitution. While the com­pleted document did not satisfy all delegates, of the fifty-five delegates who attended some portion of the meetings, thirty-nine ultimately signed it. The sentiments uttered by Benjamin Franklin probably well reflected those of many others: "Thus, I consent, Sir, to this Constitution because I expect no better, and because I am not sure that it is not the best."

The Basic Principles of the Constitution

The structure of the proposed new national government owed much to the writings of the French philosopher Montesquieu {1689-1755), who advocated distinct func­tions for each branch of government, called separation of powers, with a system of checks and balances between each branch. The Constitution's concern with the distribution of power between states and the national government also reveals the heavy influ­ence of political philosophers as well as the colonists' experience under the Articles of Confederation.

FEDERALISM The question before and during the convention concerned how much power states would give up to the national government. Given the nation's experi­ences under the Articles of Confederation, the Framers believed that a strong national government was necessary for the new nation's survival. However, they were reluctant to create a powerful government after the model of Great Britain, the country from which they had just won their independence. The colonists did not even consider Great Britain's unitary system. Instead, they fashioned a way, now known as a federal system, to divide the power of government between a strong national government and the individual states, with national power being supreme. Federalism was based on the principle that the federal, or national, government derived its power from the citizens, not the states, as the national government had done under the Articles of Confederation.

Opponents of this system feared that a strong national government would infringe on their liberty. But, supporters of a federal system argued that a strong national government with distinct state governments could, if properly directed by constitutional arrangements, actually be a source of expanded liberties and na­tional unity. The Framers viewed the division of governmental authority between the national government and the states as a means of checking power with power, and providing the people with double security against governmental tyranny. Later, the passage of the Tenth Amendment, which stated that powers not given to the national government were reserved by the states or the people, further clarified the federal structure.

Separation of powers is simply a way of parceling out power among the three branches of government. Its three key features are:

1. Three distinct branches of government: the legislative, the executive, and the judicial.

2. Three separately staffed branches of government to exercise these functions.

3. Constitutional equality and independence of each branch.

As illustrated in Figure 2.2, the Framers carefully created a system in which law­ making, law-enforcing, and law-interpreting functions were assigned to independent branches of government. Only the legislature has the authority to make laws; the chief executive enforces laws; and the judiciary interprets them. Moreover, initially, members of the House of Representatives, members of the Senate, the president, and members of the federal courts were selected by, and therefore responsible to, different constituencies.

The Framers could not have foreseen the intermingling of governmental func­tions that has since evolved. In Article I of the Constitution, the legislative power is vested in Congress. But, the president also has a role in the legislative process; for a bill to become law, he must sign the legislation. If he disagrees with the content of a bill, he may also veto the legislation, although a two-thirds vote in Congress can over­ride his veto. Judicial interpretation also helps to clarify the language or implementa­tion of legislation enacted through this process.

So, instead of a pure system of separation of powers, a symbiotic, or interde­pendent, relationship among the three branches of government has existed from the beginning. Or, as one scholar has explained, there are "separated institutions sharing powers."16 While Congress still is entrusted with making the laws, the president, as a single person who can easily capture the attention of the media and the elector­ate, retains tremendous power in setting the agenda and proposing legislation. And, although the Supreme Court's major function is to interpret the Constitution, its deci­sions affecting criminal procedure, reproductive rights, health care, and other issues have led many critics to charge that it has surpassed its constitutional authority and become, in effect, a law-making body.

CHECKS AND BALANCES The separation of powers among the three branches of the national government is not complete. The powers of each branch (as well as the powers of the two houses of the national legislature and the powers between the states and the national government) are also used to check those of the other two governmental branches. The power of each branch of government is checked, or limited, and balanced because the legislative, executive, and judicial branches share some authority, and no branch has exclusive domain over any single activity. The creation of this system, checks and balances, allowed the Framers to minimize the threat of tyranny from any one branch. Thus, for almost every power granted to one branch, the Framers established an equal control in the other two branches.

The document finally signed by the Framers condensed numerous resolutions into a Preamble and seven separate articles remedying many of the deficiencies within the Articles of Confederation (see Table 2.1). The first three articles established the three branches of government, defined their internal operations, and clarified their relationships with one another. The Framers technically considered all branches of government equal, yet some initially appeared more powerful than others. The order of the articles, as well as the detail contained in the first three, reflects the Framers' concern that these branches of government might abuse their pow­ers. The four remaining articles define the relationships between the states, declare national law to be supreme, and set out methods of amending and ratifying the Constitution.

ARTICLE I: THE LEGISLATIVE BRANCH Article I vests all legislative powers in the Congress and establishes a bicameral legislature, consisting of the Senate and the House of Representatives. It also sets out the qualifications for holding office in each house, the terms of office, the methods of selection of representatives and senators, and the system of apportionment among the states to determine membership in the House of Representatives.

One of the most important sections of Article I is section 8. It carefully lists those powers the Framers wished the new Congress to possess. These specified, or enumerated powers contain many key provisions that had been denied to the Continental Congress under the Articles of Confederation. A final, general clause authorizing Congress to "make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers" completes Article I. The necessary and proper clause is the basis for the implied powers that Congress uses to execute its other powers.

ARTICLE II: THE EXECUTIVE BRANCH Article II vests the executive power, that is, the authority to execute the laws of the nation, in a president of the United States. Section 1 sets the president's term of office at four years and explains the Electoral College. It also states the qualifications for office and describes a mechanism to replace the president in case of death, disability, or removal from office. Article II also limits the presidency to natural-born citizens. The powers and duties of the president are set out in section 3. Among the most important of these are the president's role as com­mander in chief of the armed forces, the authority to make treaties with the consent of the Senate, and the authority to "appoint Ambassadors, other public Ministers and Consuls, the Judges of the Supreme Court, and all other Officers of the United States." From these powers presidents have claimed inherent powers, allowing them to take broad reaching authority not specified in the Constitution from using the National Guard to integrate state schools over the deviance of state governors or sending im­mediate aid to states or nations in need.

ARTICLE III: THE JUDICIAL BRANCH Article III establishes a Supreme Court and defines its jurisdiction. During the Philadelphia meeting, the smaller states feared that a strong unelected judiciary would trample on their liberties. Thus, the Framers permitted Congress to establish lower national courts but did not require it. State courts and the national court system would exist side by side with distinct areas of authority. Federal courts had authority to decide cases arising under federal law and the U.S. Constitution. The U.S. Supreme Court also assumed the power to settle disputes between states or between a state and the national government. Ultimately, it was up to the Supreme Court to determine what the provisions of the Constitution actually meant.

ARTICLES IV THROUGH VII The remainder of the articles in the Constitution at­tempted to anticipate problems that might occur in the operation of the new national government as well as its relations to the states. Article IV begins with what is called the full faith and credit clause, which mandates that states honor the laws and judi­cial proceedings of other states. Article IV also includes the mechanisms for admitting new states to the union.

Article V specifies how amendments can be added to the Constitution. The Bill of Rights, which added ten amendments to the Constitution in 1791, was one of the first items of business when the First Congress met in 1789.

Article VI contains the supremacy clause, which asserts the basic primacy of the Constitution and national law over state laws and constitutions. The supremacy clause provides that the "Constitution, and the laws of the United States" as well as all treaties are to be the supreme law of the land. Without the supremacy clause and the federal courts' ability to invoke it, the national government would have little actual enforceable power; thus, many commentators call the supremacy clause the linchpin of the entire federal system.

Mindful of the potential problems that could occur if church and state were too enmeshed, the Framers specified in Article VI that no religious test shall be required for holding any office. This mandate is strengthened by the separation of church and state guarantee that became part of the Constitution when the First Amendment was ratified.

The seventh and final article of the Constitution concerns the procedures for rati­fying the new Constitution: nine of the thirteen states would have to agree to, or ratify, its new provisions before it would become the supreme law of the land.