Enumerated Powers and Institutional Design by cuiliqing


The Framers‟ Constitution as a Solution to the Crisis of
Republican Government
Contact Information
   Alan Gibson, Department of Political Science, CSU
    Chico, Chico, CA, 95929-0455.
   agibson@csuchico.edu
   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.
Rejected Alternatives
   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
Compel Taxation
 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
 United States.”
 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
Hamilton‟s Mercantile
Economic Vision
   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
Independent Farmer
   “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
    for Capitalism?
   “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
national legislature

   Partial Solution in the Constitution: Proportional Representation in the House
    of Representatives
   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

     The Extended
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
    the states.
   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
   American Revolution?
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?

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