The Constitutional Setting

Founders’ View of Government

• The Constitution is obviously the place to begin—it is how the institutions we are interested were formed

​

• Before we discuss what the Constitution says about them, look more broadly at the Founders’ approach to government

​

• Collectively might be considered both “democratic” and “republican” – not in the partisan sense

​

Founders’ View of Government

• Democratic
• Populist side of the Revolution, captured by people like Paine
• Regular “dependence on the people” (Madison)—frequent and direct elections
• Majority rule
• Majoritarian procedures so that majority sentiment represented in policy decisions

​

​

​

Founders’ View of Government

• Republican – might be thought of as a check on popular rule
• Individual liberty
• John Locke (author of Fundamental Constitutions of the Carolinas, English Bill of Rights, massive influence on Founders generally)
• Clear in Bill of Rights, Declaration of Independence
• Written Constitution—“fundamental” law, durable principles, difficult to amend, Article V, 27 amendments
• Idea of “rule of law”
• Different from the British “unwritten constitution” and principle of “parliamentary sovereignty”

​

​

​

​

​

​

Founders’ View of Government

• Republican
• Federalism
• Made out of 13 sovereign entities, even if different populations
• Nearly 20% of people in US (3.9 mil total) lived in VA, less than 2% in RI
• Articles of Confederation—recognized state independence, gave them veto rights in governance, states had equal power

​

​

​

​

​

​

Founders’ View of Government

• Race & Slavery
• This all exists within a society of about 800,000 enslaved people
• Framers ranged in views on issue—but at very least the Constitution accepts the situation
• 3/5ths Compromise—Article I Section 2
• Protection of Atlantic slave trade – Article I Section 9
• Fugitive slaves returned across state borders – Article IV Section 2

​

• Inconsistent with many of their views – to some extent a function of political compromise

​

​

​

​

​

​

Founders’ View of Government

• Federalist Papers provides best way to understand Framers’ thinking

​

• And help us understand the key principle we are interested in

​

• 85 essays, Publius (Hamilton, Jay, Madison), for people of New York

​

• Why NY?
• NYC and one of the “Big Four”
• “Swing state”—Gov. George Clinton a vocal Anti-Federalist (VP for Jefferson and Madison)
• Split the country

​

Founders’ View of Government

• Human nature—Fed 6 (H), “men are ambitious, vindictive, and rapacious”

​

• Hobbes and his “Leviathan”

​

• How we tend to think of politicians’ motives today

Founders’ Philosophy of Governance

• Problem:
• Madison (51): “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.”

​

• What is the solution?

Separation of Powers

• Decentralize and disperse power, make it difficult for it to concentrate so that it cannot be used against the public interest.

​

• Create a “separation of powers”
• Locke
• Although he saw them based on function, not institutional – legislative, executive, federative (foreign policy)
• French C19th philosopher, Montesquieu, “The Spirit of the Laws”
• Even a democracy was “despotic” without checks on power
• Thought the British system best—separation between Crown and Parliament

Separation of Powers

• Legislative power—lawmaking
• Congress, Article I

​

• Executive power—administration, enforce law
• President, Article II

​

• Judicial power—application of law to case, resolves disputes
• Federal courts (Supreme Court, later others), Article III
• Does not make law; judicial review comes in Marbury v. Madison (1803)

Separation of Powers

• Separation in many ways meant a thorough detachment

​

• Personnel
• No one could be in more than one branch at the same time—Article I, Section 6; with the exception of the Vice-President, President of the Senate
• Many examples of people moving between the branches after they have relinquished positions
• Few move from president to others (although Taft, JQA, Hughes from Court to presidential candidate to Secretary of State to Court)
• Many move these days from Congress to executive (Obama & Biden in 2009; Harris in 2021; Vance 2025; Rubio at State; Gaetz AG)

Separation of Powers

• Constituencies

​

• President and Supreme Court—nation
• President, 51 discrete contests because of Electoral College (DC XXIII Amend.)—so federal features
• Senate—states
• Of course vary greatly, CA 41 million; WY 580,000
• House—congressional districts, today SMDs, some states used “General Ticket” (all races at-large)
• CT, GA, NJ C19th
• AL early 1960s

Separation of Powers

• Terms
• President—4 year terms, max 2x
• Until 1951 & XXII Amendment, this was a tradition—however after FDR Republicans pushed amendment
• “no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once”
• LBJ chose not to run in 1968
• Trump eligible for only one more term in 2024

​

Separation of Powers

• House—2 years
• Senate—6 years
• Supreme Court & other federal judges—life
• However judges and executive branch officials can be impeached and removed from office by Congress (House impeaches, Senate tries), for “treason, bribery, and other high crimes and misdemeanors” (Article II, Section 4)
• Staggering makes concentration of power difficult
• 1930s and Democratic gains blocked by judiciary

​

Separation of Powers

• Selection Processes
• President
• Indirect election
• Electoral College
• Need majority of 538 (#MCs + DC) to win (i.e. 270)
• If no candidate gains a majority, decided by the House
• 1800 election (2 votes per elector) and Jefferson-Burr tie (resolved after 36 ballots in House)
• XII Amendment, majority needed or top 3 to House—1824 only occasion (Jackson, Adams, Crawford)

​

​

​

Separation of Powers

• Electoral College
• But today effectively direct—reflect popular vote pluralities, 30 states laws binding electors (e.g. NC $500, cancels vote & replaced)—still some “rogue” electors, e.g. 2000, 2016 (when 7)

​

• “Unit rule”, means popular vote “losers” can be Electoral College “winners”—e.g. 2016, 2000, 1888, 1876
• 2016 – Clinton won by 2.9 million national popular (although still a plurality)

​

​

​

Separation of Powers

• Selection Processes

​

• Senate
• Direct election after XVII Amendment 1913
• Before, indirect by state legislatures—although “Progressive” states increasingly use popular vote themselves after 1908
• You can be appointed to the Senate (by Governor) to see out another’s term
• House
• Direct election
• Can never be appointed, vacancies filled by “special election” – NC 9^th after 2018 election voided
• Supreme Court
• Nominated by the President, confirmed by the Senate

​

Separation of Powers

• This was very unlike the British parliamentary system

​

• Executive is formed out of the legislature by the majority

​

• Public elects both the executive and the legislature at the same time

Checks and Balances

• Madison (#48): need to “provide some practical security for each” because “power is of an encroaching nature” and “ought to be effectually restrained from passing the limits assigned to it”
• Madison (#51): “ambition must be made to counter ambition”
• Felt power would naturally concentrate without safeguards—leading to corruption and a greater possibility that government authority would be used against civil society and the public interest

​

​

• Provide
• Defensive mechanisms & veto powers
• Force cooperation for positive action

Checks and Balances

• Presidential veto

​

• Article I, Section 7, paragraph 2
• Discusses the regular veto and pocket veto. Differences?
• Pocket veto interpretation? Adjournment sine die, although Bush veto of defense reauthorization bill 12/07
• No line-item veto like 44 governors (not NC)—established 1/97 for spending and some tax bills, declared unconstitutional Clinton v. NY (1998). Clinton used it on 82 provisions in 11 bills

​

Checks and Balances

• Appointment & treaty powers, Article II, Section 2
• Need Senate assent

​

• Foreign policy powers, “an invitation to struggle”
• Article I, Section 8 Congress powers “to declare war”, “to raise and support armies”
• Article II, Section 2, the president is “Commander in Chief”
• Treaty making

​

• Bicameralism

​

• Impeachment and removal from office of executive officers, including the president—majority in House, 2/3 Senate
• Art II, §4, “Treason, Bribery, and other High Crimes and Misdemeanors”

​

Checks and Balances

• The Framers felt that they had found an equilibrium

​

• Not necessarily perfect balance, but a stable system�
• Indeed, many felt the legislative branch would be most powerful, e.g. Madison (#48), Hamilton (#71). Why?
• Constitution did a better job circumscribing presidential power
• Congress’ “power of the purse” used to punish presidents and judges

​