FORMING THE MORE PERFECT
POWERS AND INSTITUTIONAL
DESIGN IN THE FOUNDERS‟
The Framers‟ Constitution as a Solution to the Crisis of
Alan Gibson, Department of Political Science, CSU
Chico, Chico, CA, 95929-0455.
530 898 4952
Addressing the Problems of the 1780s
Within the Imperatives of Institutional
The Constitution had to address the problems of the Articles of
Confederation and the state governments – 1) the impotency of
the national government, 2) commercial warfare between the
states, 3) their corporate aggressiveness and the threat of civil
war, 4) violations of individual rights within the states, 5) the
inability of the national government to provide adequate
national security and establish the status of the United States as
an equal nation within the community of independent nations -
without violating core principles of republicanism, popular
sovereignty, federalism, and natural rights.
Monarchy and Mixed Government
Neither consolidation nor confederation was
“Short leash” republicanism was rejected as
incompatible with the protection of rights and the
promotion of “good government.”
How Does the Framers‟
Constitution Address the
Problems of the 1780s?
Problem under the Articles: No Power to
Solution in the Constitution: Empower the National Government with the
power of taxation. Article I, Section 8: “The Congress shall have Power To
lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and
provide for the common Defence and general Welfare of the United
States; but all Duties, Imposts and Excises shall be uniform throughout the
Most delegates did not expect that direct taxes would be extensively used
although they were made constitutional. Impost duties and land sales
created the bulk of federal revenues until the 20th century and the
imposition of an income tax. Neither states nor the national government was
permitted to tax exports under the Constitution.
Problems under the Articles: No power to
regulate commerce and commercial
warfare between the states
Solution in the Constitution: The Commerce Clause:
Article I, Section 8, Clause 1,3: “The Congress shall
have power . . . To regulate commerce with foreign
nations, and among the several states, and with the
Indian tribes. The commerce clause creates a national
common market for the United States as affirmed in
Gibbons v. Odgen.
Addressing the National Debt
The United States and the states had gone over 435 million dollars in debt
to fight the Revolution. Almost all leaders in the nation – Federalist as well
as Anti-federalists – believed that this should be paid. Otherwise, our credit
and credibility across the world would be severely undermined.
Article VI of the Constitution stipulates: “All debts contracted and
engagements entered into, before the adoption of this Constitution, shall be
as valid against the United States under this Constitution, as under the
Confederation.” But three questions arose. Would the state debts be
assumed by the national government? Would the debt be refinanced but
perpetuated or financed with goal of paying it off? Would discrimination
be made between the current and original holders of the national debt?
(Would, in other words, the original holders of the debt receive any
Conflicting Systems of Political Economy:
Hamilton Versus Madison and Jefferson
The addition of a power to regulate commerce did
not, however, mean that the Framers of the
Constitution had the same economic vision. The
visions of Hamilton and Madison were quite
different even as they left the Constitutional
Beginning in the 1780s, Hamilton believed that a perpetually funded debt
and a national bank could be used as means of facilitating the growth of
investment capital in the young republic. Getting wealthy merchants and
mercantile men to invest in the national government, Hamilton believed,
would tie their financial fate directly to the fate of the national government.
They would not therefore let the republic fail. Hamilton also favored the
development of large scale, public American manufacturers subsidized
through government bounties. A nation that did not produce its own
agricultural products and household manufacturers, Hamilton argued, would
be primitive and lack the productive capacity generated by the division of
labor in more advanced societies. It would also ultimately not have an
adequate army or navy.
Jefferson‟s Celebration of the
“Those who labour in the earth are the chosen people of God, if ever he had a
chosen people, whose breasts he has made his peculiar deposit for substantial and
genuine virtue. It is the focus in which he keeps alive that sacred fire, which
otherwise might escape from the face of the earth. Corruption of morals in the mass
of cultivators is a phenomenon of which no age nor nation has furnished an
example. It is the mark set on those, who not looking up to heaven, to their own soil
and industry, as does the husbandman, for their subsistance, depend for it on the
casualties and caprice of customers. Dependance begets subservience and venality,
suffocates the germ of virtue, and prepares fit tools for the designs of ambition….
[G]enerally speaking, the proportion which the aggregate of the other classes of
citizens bears in any state to that of its husbandmen, is the proportion of its unsound
to its healthy parts, and is a good-enough barometer whereby to measure its
degree of corruption…. [L]et our workshops remain in Europe…. The mobs of great
cities add just so much to the support of pure government, as sores do to the
strength of the human body.” Thomas Jefferson, Notes on the State of Virginia.
Madison and Jefferson‟s Commercial
In contrast to Hamilton, Madison and Jefferson believed that the national
debt should be paid and paid off, not perpetuated. They hoped that the
United States would remain primarily an agricultural nation. The
independent farmer, they believed, would not be beholden to either an
employer or government patronage for his livelihood. The cornerstone of
this economic vision was the policy of commercial discrimination against
foreign nations that discriminated against American goods. Such a policy,
Madison and Jefferson steadfastly – if perhaps quixotically – believed
would compel foreign nations to open markets to America‟s surplus
agricultural products. An open market for American goods would, in turn,
insure that large numbers of Americans did not have to become employed
in manufacturing and thus that the republic would remain agrarian and
Was the Constitution the Institutional
“One need not resort to conspiracy theory to argue that the Constitution provided
not just the historical capstone of American republicanism but also the institutional
cornerstone of American capitalistic development and that some of the framers, at
least, intended it. The powers given to Congress and the ones denied to the states
are evidence enough. By creating a common market, a national system of taxation
and finance, a common money system, a communications network, by granting legally
enforceable property rights to inventors and authors, by denying to the states the
right to „coin money...emit Bills of Credit...make any Thing but gold and silver Coin a
Tender,” pass bills of attainder, ex post facto laws, and laws altering or „impairing
the Obligation of Contracts,” the Constitution created a legal environment far more
favorable to entrepreneurial values than anything America had known. Where in any
of the original state constitutions is there a comparable list of permissions and
prohibitions?” - Edward Countryman, “Of Republicanism, Capitalism, and the
„American Mind‟,” The William and Mary Quarterly, Third Series, Vol. 44, No. 3, The
Constitution of the United States (Jul., 1987), pp. 556-562
Problem under the Articles: Corporate
Aggressiveness of the States
Solution in the Constitution: Article 1, Section 10 prohibitions against the
“No State shall enter into any Treaty, Alliance, or Confederation; grant
Letters of Marque and Reprisal.”
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 it's inspection Laws: and the net Produce of all Duties and Imposts,
laid by any State on Imports or Exports, shall be for the Use of the Treasury
of the United States; and all such Laws shall be subject to the Revision and
Controul of the Congress.
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,
unless actually invaded, or in such imminent Danger as will not admit of
Problem under the Articles: Threat of
Intervention of Foreign Nations in North
Strong Executive is created with the power as
Commander in Chief
Standing Army is created under the Constitution. No
longer will it be held that the country can be
defended by local militias.
Problem under the Articles (from the perspective of the large
states): large states are not proportionately represented in the
Partial Solution in the Constitution: Proportional Representation in the House
Revenue Legislation Must Originate in the House. Article I, section 7 grants
the House the sole prerogative to originate revenue legislation. This was a
concession to the large states. This important power, it was argued, would
first be subject to approval in the body in which the large states were more
completely represented and had greater power.
Incidentally, this power has subsequently become the subject of
considerable dispute. Everyone agrees that taxes measures (revenue raising
measures) must originate in the House, but the Constitution does not directly
address appropriations or spending measures. Must they also originate in
the House? The House and the Senate disagree.
Problem Under the Articles: Majority
tyranny within the states
Solution in the Constitution: Article 1, Section 10
prohibitions against the states:
No State shall .... coin Money; emit Bills of Credit;
make any Thing but gold and silver Coin a Tender in
Payment of Debts; pass any Bill of Attainder, ex
post facto Law, or Law impairing the Obligation of
Contracts, or grant any Title of Nobility.
Preventing the National Government
from undue Responsiveness
Solution in the Constitution: Long Leash
Republicanism. Only one branch of the national
government – the House of Representatives - is
directly elected by the people. The Senate is
elected by the state legislatures, the President
through an Electoral College, and the Judiciary is
appointed by the President and confirmed by the
Senate. “The Federal Pyramid”
Preventing the National Government
from undue Responsiveness
Separation of Powers and Long Leash
The system of separation of powers set forth in the Constitution was designed
to protect against legislative encroachments on the other branches and to
control popular majorities. In part as a result of their experiences with the
state governments during the mid-1780s and in part because their
accompanying understanding of the nature of republican governments,
Madison and the Federalists viewed the House of Representatives as a
passionate, powerful, ever encroaching branch that necessarily
“predominates” in republican governments. Tyrannical majorities, they
believed, would be most likely to capture this branch. The checks given to
the Judiciary, Executive, and Senate - including life tenure for judges, the
qualified executive veto, and especially bicameralism - were thus designed
to increase the independence and power of the weaker and more indirectly
selected branches so that they had sufficient means to temper unjust
legislative majorities and to defend themselves from constitutional
encroachments from the House of Representatives.
Separation of Powers (continued)
Why do we have separation of powers?
a) Prevent tyrannical government
b) Prevent majority tyranny
c) To insure impartiality and the rule of law. No man
should be a judge in his own cause. No branch should
both make and interpret the laws or make and
execute the laws.
d) “Good” government – Separation of powers
guards against inept as well as tyrannical
Separation of Powers (continued)
How is Separation of Powers maintained?
a) Not by periodic revisions called by the people, or merely
marking the different powers out on paper.
b) Separation of powers is maintained by sharing powers
among the branches in such a way as to give to the members
of each branch “the necessary constitutional means and
personal motives to resist encroachments of the others.” (The
Federalist No. 51) Members of each branch must jealously
guard the sphere of constitutional authority assigned to their
branch against encroachments by the other branches.
Separation of Powers (continued)
The conception of separation of powers under the
Constitution also relies on a division of labor between
the branches. It suggests that some powers are by
their nature executive, legislative, and judicial and
thus belong in the appropriate branch. It also
suggests that under the Constitution the various
branches have been designed – by the virtue of how
the officials in that branch are selected and the
length of term of office – to exercise certain powers.
The Relationship of Mode of Selection,
Number, and Term of Office to Power
Exercised in the Framers‟ Constitution.
Senators are given a long length of office and are expected to
have an institutional memory in order to exercise power in the
area of foreign relations.
The President is “unitary” to allow for the swift executive of
powers he has as commander in chief.
Judges are given life terms to promote their independence and
their understanding of the law and to exercise judgment in the
service of upholding the law.
The House of Representatives is numerous and members serve
short terms to insure that they reflect the will of the people.
Problem under the Articles: Difficulty of
Solution in the Framers‟ Constitution
Create a new system of amendments that allows for a majority
of the states acting in unison to amend the document.
Amendments can be proposed by a) two-thirds of the members
present in both branches of the national legislature or b) by a
special convention called at the request of three-quarters of
Amendments can be ratified by a) three quarters of the states
or b) special conventions held in three quarters of the states.
Was the Framers‟
Constitution Consistent with
the Principles of
Republicanism and the
The Federalist Persuasion (Popular
Sovereignty and Republicanism)
Popular Sovereignty and Republicanism is secured in the Constitution: Popular Sovereignty –
The government must be “strictly republican” or “wholly popular.”
“If we resort for a criterion, to the different principles on which different forms of government
are established, we may define a republic to be, or at least may bestow that name on, a
government which derives all its powers directly or indirectly from the great body of the
people; and is administered by persons holding their offices during pleasure, for a limited
period, or during good behaviour. It is essential to such a government, that it be derived from
the great body of the society, not from an inconsiderable proportion, or a favored class of it;
otherwise a handful of tyrannical nobles, exercising their oppressions by a delegation of their
powers, might aspire to the rank of republicans, and claim for their government the honorable
title of republic. It is sufficient for such a government, that the persons administering it be
appointed, either directly or indirectly, by the people; and that they hold their appointments
by either of the tenures just specified; otherwise every government in the United States, as well
as every other popular government that has been or can be well organized or well executed,
would be degraded from the republican character. The Federalist No. 39.
Federalism (According the Federalists)
National Supremacy is limited to those powers enumerated in
the Constitution or fairly implied from them. The states retained
powers not given to the national government or implied from
those enumerated constitutional powers, but the states had no
right to secede from the union.
The national government was not granted a universal or even
qualified veto, but national supremacy was both insured and
limited through enumeration, judicial review of state laws, the
national supremacy clause, and Article I, Section ten restrictions
on the states.
The Constitution reserves to the states the exercise of the police
powers over health, safety, and morals of the citizenry.
Questions for Discussion
Questions for Discussion:
1. Is the institutional design set forth in the United States
Constitution establish a government capable of operating
without a virtuous people? Does institutional design substitute
for virtue in the people by pitting interest against interest?
2. How has the creation of political parties changed how
separation of powers operates? Does it still serve as a guard
against tyranny if members of the same party control the
different branches of the national government?
3. Does the Constitution establish a democratic republic? If so,
then by what definition of democracy?