The Constitution: the bones of our Government, Part 1 - Supremacy Clause and Federalism

This is a second in a series of posts meant to be a primer on the basic set up of our nation’s government and its Constitution.  The first post was on Social Contract Theory and why government exists. Here, I start discussing the structure of the US Government.

The Founders of the Constitution put a lot of time, argument, and thought into developing the government that is the United States.  At the time, monarchies and empires were the standard format.   The Founders wanted to depart from that system by creating a government that centered its absolute power in the hands of all its people.  As James Madison noted: 

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.[1]

The authors created a system of intentional tensions between different holders of power.  The source or center of power is the federal Constitution – not a man, but law itself.  The execution of that power is meted out through a series of checks and balances.

Importantly, the checks and balances are complex and interwoven.  I like to think of the American governmental structure as a spiderweb, except made of rubber bands.  The tension of each thread matters.  The Government is designed to take extreme amounts of pressure from blows, then redistribute the damage by utilizing the strength of the remaining structure to keep the pattern whole.   But, this only works if the whole web remains intact.  Cut off one limb of the structure, and the balance of tensions fails, and the government starts breaking down.  Each aspect matters. The first set of rubber bands relates to the Supremacy Clause.

We start with Article Six, Clause Two of the Constitution - the Supremacy Clause.  It states:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

It is important to understand the supremacy clause in the context of two things.  First, the Constitution was meant to correct the failures of the Articles of Confederation.  Second, and most importantly, the Supremacy Clause took the bedrock of governmental power from men and put it into the concept of Law. 

Fractured Power with no Unification: why the Articles of Confederation Failed.

The Constitution was the second version of America’s government. The first version was the Articles of Confederation, which were formed in 1777 but not ratified until 1781. 

The Articles of Confederation were written by a set of States who had just gained independence from centralized power, and this is obvious from looking at the document.  They wanted nothing centralized.  The Articles delegate all powers to the States by default, then carve out precious few powers to the Confederacy (central government). The Confederacy could make treaties with foreign nations, declare war, maintain an army and navy, establish a postal service, manage Native American affairs, and coin money.  That was it.  There was only one structure of the national government – Congress.  It was a single house. A majority of 9 of the 13 colonies was needed to enact national laws, unless it was to amend the Articles – that required a 100% vote.  Each state only got one vote, regardless of size or population.  There was no executive branch to perform tasks of the confederate government.  There were no courts to determine any controversies.   Congress did not have the power to tax.  Instead, the confederacy’s funds came from “quotas” which were paid by each state.  There didn’t appear to be a consequence for failing to pay the quota, so several states just didn’t pay them.

The result was that nothing got done.  States started taxing each other for trade.  Foreign nations were wary to trade with the U.S. because of the internal strife between States.   There was concern about how easily a small, single-house Congress could be corrupted.  Moreover, Congress had no direct relationship with the People – it was only through the States.  So if a State decided to mass-execute its own citizens, the national government had no right to intervene and protect them.  There was no tool of enforcement of the federal government, and no way to force the States to cooperate with one another or even speak with one another.[2] Despite the country’s name, the United States were not united.

The Founders realized that something needed to be done and called a Constitutional Convention.  The concern was how to develop a unified government which could be the centralized power, but to do it in such a way that the power could not be abused, and the States still could govern themselves in their own fashion.  The Constitution was created, and its foundational element was that the Union was to be supreme, but that the supreme power of the government was reliant on the States and the People.  

Power Centralized: How to give everyone and no one power.

The Supremacy Clause does more than establish that the Federal law prevails where the Constitution binds the States.  The Supremacy Clause makes the Constitution the Sovereign.  This is a rather elegant solution to the problem Madison was describing: if a government is made to control people, the best way to do that is to prevent people from being the source of power.  This enabled the Founders to centralize power into the national government without it being rooted in one supreme, non-angelic person. Instead of any one person having absolute authority, in the U.S., the Constitution is the absolute authority. It is a document, and therefore doesn’t suffer from the problem of being power-hungry. (Having been invented by men, it still isn’t perfect…but we can get to that topic many times on many later dates).

I cannot stress enough that our system of government will not work without buying into the Constitution’s sovereignty.  If there is nothing else you take from this post, please take this lesson:  the rule of law only works if law is supreme.   As soon individual people are superior to law, our system fails.  This is historically demonstrable and will be discussed at a later date..

Our Founders intentionally fashioned the idea of legal supremacy, but importantly, they also acted on it.  To me, one of the most significant moments in our American history is the moment where George Washington, as the first President, bought into the supremacy of law and the Constitution.  He was historically loved and was respected as an excellent leader.  People clamored for him to run a for a third term.  They essentially wanted him to be a king.  While there was definitely conflict within his cabinet, his choice to step down from office demonstrated his belief in the strength of the new system.  That the United States should not rise or fall by the merits of a single man.   His abdication to new players, and therefore to law over man, demonstrated the legal system’s supremacy.  And the world noticed.  Lin-Manuel Miranda nailed this sentiment in his recent hit play Hamilton:

[HAMILTON] As far as the people are concerned/ You have to serve, you could continue to serve—

[WASHINGTON] No! One last time/ The people will hear from me/ One last time/ And if we get this right/ We’re gonna teach ‘em how to say Goodbye/ You and I—

[HAMILTON] Mr. President, they will say you’re weak

[WASHINGTON] No, they will see we’re strong

[HAMILTON] Your position is so unique

[WASHINGTON] So I’ll use it to move them along

[HAMILTON] Why do you have to say goodbye?

[WASHINGTON] If I say goodbye, the nation learns to move on/ It outlives me when I’m gone..

The Constitution is larger than a single man.  It is larger than life.  It is the supreme.  It is the bedrock.  It is meant to be the thing that holds when all other aspects of government have failed.   This is because it is General Will of the People.  Its not only the structural framework for our government.  It is the backup parachute for when the government is crashing to the ground.  It is the Sovereign.

The Federalist Republic: How you get the States and the People into one Government.

Because the Founders were concerned with concentrating power without putting it in the hands of a monarch, they needed to create a system that unified everyone in a way that protected individuals.  To do this, the government needed majority rule but minority protection. 

To consider this closely, the Founders contemplated two sets of entities – the People and States.  People are the people of this nation.  States are the States.   The Union is the nation-wide government.  The Union is first a government comprised of the States, and only secondly a government comprised of the People of the Union.   These are two different and separate relationships. 

Here’s where we tie into the last post on Social Contract theory. The national government of the United States has two relationships - one with the States, and one with the People. In theory, each set of governed “bought into” the government under social contract theory. The Union’s relationship with the States is primary because the States created and contracted into the Constitution.  The People did not ratify the Constitution, the States did.   The idea is that each State was empowered by its own social contract with its own specific citizens. Through that social contract, each State was empowered to enter into the Union/Constitution. However, after that contract was brokered and the Constitution was empowered, the Union developed a separate and independent relationship with the People of each state.    Therefore, now that the Constitution has come into being, the Union accounts for the majority – or General Will – by interacting with both its People and the States.

With these two relationships founded, the Founders next secured safeguards to ensure each relationship with remain intact and serve its purpose.  The benefits of Federalism (closer self-government, the ability to conform to local customs and beliefs, and the protection of individual ideals even if they do not conform with the majority) were to be balanced with the strength of a Republic (a government derived from majority rule, that limits power by ensuring rulers are appointed either directly or indirectly by the people and are only appointed for fixed amounts of time). In other words, the Union was developed to ensure majority rule but minority protection.

You can see this in how the three branches were set up to preserve the Union’s relationship with its States and its People.  The Legislature is split into two houses – the Senate and the House of Representatives.  Every State has two Senators – demonstrating that each State has an equal voice in the Union. Each States’ Senators serve the entire State. They represent the General Will of that State.  Separately, the House of Representatives are allocated based on population.  Each Representative represents the Will of the People from their Congressional District, and only that Congressional District.  Thus, the Representatives are the channel for the relationship between the People and the Union.  For laws to be formed, both the States and the People must unify their voices because both Houses need to agree on a law for it to go to the President for signature.

This balance is also seen in the President’s appointment through vote by electoral college.   The votes for the college are allocated in a compound ratio equal to the legislature – every State gets the same number of fixed votes, and then more are added in ratio to that States’ population.   Thus, the voices of the People and the States contribute to the selection of the President.  This is because the President is the chief executive for all People and all States. (More on this in another post.) 

Finally, this balance is seen by the appointment of federal judges.   Unlike most state judges, federal judges are appointed for life unless they suffer a failure of moral character (essentially, they are impeached using a method similar to impeaching the president.)  Because of the requisite knowledge, training, and experience needed to apply the law, the burden of determining their qualifications is shifted from the public to the persons elected by the public – the Executive (who nominates) and the Legislature (who confirms).   Indirectly, both the States and the People voice who will take the judicial helm. 

In short, in addition to making the supreme power be a document, the Constitution is designed to shift power so that the majority of both the States and the People can rule, but that the minority voices are protected.

The Takeaway

The Constitution is a rubber-band-spiderweb of tensions that are meant to make the whole fabric of government stronger.   The goal of the spiderweb is to have majority rule but minority protection.  This is done by making the General Will supreme.  The Constitution is the General Will, and it is sovereign.

There are two relationships binding the United States of America.  First, all States are bound together in a Union. Second, all People are bound together in a Union.  The federal government represents both the States and the People.

Some references if you’d like to learn more:

• The Constitution. Available at the Cornell Legal Institute: https://www.law.cornell.edu/constitution/overview

• Your State Constitution.  You should be able to find it online.  Keep in mind that it is an entirely separate Social Contract that also protects you – and often times, provides more protections than the Federal Constitution.  However, the structure of the State Constitution always mirrors the Federal one.  

• The Federalist Papers – these are the writings by John Jay, James Madison, and Alexander Hamilton that were published in order to educate the public and get support for the new Constitution.  I particularly like Numbers 39, 51, and 78.  You can buy them in a book or find them online at https://www.congress.gov/resources/display/content/The+Federalist+Papers

[1] Federalist Paper No. 51

[2] See Federalist Papers No. 21 and 22.

Social Contract Theory 101

This is a first in a series of posts meant to be a primer on the basic set up of our nation’s government and its Constitution.  This is motivated mainly by today’s news environment.  So many assertions about law made by politicians, reporters, and – well – bloggers drive me crazy because they are misrepresentations to the general public.  Of course, much of law and politics has room for interpretation.  But when something is stated as a fact that is just plain wrong, or completely omits some really important clarifying information, I start muttering.  And its possible to get a crash course on legal theory without going to law school.  Here’s my attempt at formulating such a course.

This first one is a bit nerdy, but there’s a reason for it – bear with me.  It’s important to start from the beginning. To talk about a legal framework, one must consider why it exists.  In other words: why do governments exist?  As humans, and especially as Westerners that believe in a human-centered paradigm, the surrender of ourselves to government directly contradicts our preciously-guarded concept of free will.  Social Contract Theory studies why people are willing to make this surrender.

It is worth noting that each theory begins from the idea that, prior to establishing government, humanity starts from a “state of nature” where all people are free and equal.  At some point, each government is created by a social contract where the people affirmatively chose to bind themselves to the government for mutual gain.  Starting from the idea of “nature” is an exercise of suspending disbelief.  I am aware of no point in history where I can truly say equality existed, and in many cases universal freedom is also problematic.  In almost all countries and governments, the moment of a “re-set” where a country sits down and develops an entire governmental system from nothing does not exist.  One of the very rare exceptions to this, however, is the United States. 

The American Revolution began as a breach of social contract – the Declaration of Independence.  When we won our liberty, our founding fathers contemplated and debated for over a decade to develop a government that would serve its people.  In fact, they scrapped the first version as a failure.  The preliminary constitution – the Articles of Confederation – was tossed out as ineffective after the 13 colonies that had signed onto it discovered its flaws.  The Constitution that governs the United States today did not take effect until 1789.

Importantly, the system of government that was developed didn’t mirror the European counterparts in existence at the time.  The focus was contractual, and the government’s role was of service. This is seen in the Constitution’s preamble:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, 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.

The People were contracting for a government that would keep them safe, free, secure, and unimpoverished.  Moreover, the People were setting up a government that would ensure the same qualities for future generations.  This was their social contract.

But I am getting ahead of myself. Understanding the background of social contract theory explains the why government is worth it.  Here’s a brief breakdown on the key influencers of Western Social Contract Theory.

HOBBES

Thomas Hobbes (1588-1679) was an Englishman who, after a tumultuous birth and childhood, established himself as a scholar of a wide range of subjects and eventually settled in Paris.  In 1642, when Hobbes was in his 50s, a civil war broke out in England.  Shortly thereafter, Hobbes published the Leviathan.  This work is considered the bedrock of social contract theory.

In Leviathan, Hobbes attributes the following qualities to men:

• Natural Equality:  people are roughly equal in their physical and mental powers.  (Or they aren’t, but you only can see inequality if there’s a battle.)

• Conflicting Desires:  people want different things, or want the same things but there’s not enough for everyone.

• Forward-Looking: people care about their current and future interests.

Gregory Kavka, a more recent scholar, adds two implicit Leviathan qualities:

• Anticipatory Advantage: people will seek to improve their position by either attacking first or hoarding resources.

• Limited altruism: people value their own interests over others.

With these assumptions, it is easy to see that men left to their own devices will result in violent chaos.   In Hobbes’s words:

In such condition, there is…no account of time; no arts; no letters; no society…continual fear, and danger of violent death; and the life of man, solitary, poor, nasty, brutish, and short.

Sounds lovely. 

Hobbes believes that people are inherently battle-prone, and therefore would never choose an option like sharing resources or working together if there is a slight chance that a better outcome is available by not working together.  (His famous example of this is the Prisoner's Dilemma.)  He believes that if people do make a pact to work together, they will ultimately break it.

Hobbes therefore argued for government was a way to be safe, secure, and unimpoverished.  But, because Hobbes didn't believe that people could stick to pacts, he only believed in governments with absolute power.  Therefore, his governmental solution was an absolute monarchy – a king.  The trouble with this idea is that the monarch himself is also a human, and presumably would have the same five qualities listed above.  More than a few scholars have pointed out that a monarch with absolute power could absolutely abuse it to line his own pockets.

The important thing to takeaway is that Hobbes created a value system that considered government as a function that benefits each individual.   By extension, a government that failed to do that was a government that failed.

LOCKE

John Locke (1632-1704) was an Englishman and is widely known as the Father of Liberalism.  He was educated in medicine at Oxford, and took residence as a physician to the Earl of Shaftesbury, who founded the Whig party.  It appears that Locke’s Two Treatises on Government was written as a side project during those years of studying medicine.  (And yet, entire revolutions are rooted in this document.) 

To put it simplistically, the primary evolution from Hobbes to Locke is the addition of Locke's Christian morality.  The first consequence of this is the application of the theory of Natural Law.  Natural Law sees God as the ultimate law-maker, and the State of Nature as a reflection of those laws.  Locke also believes that people were born with a “blank slate” for a mind, rather than being downloaded with pre-existing concepts prior to birth.  Locke does not find these two concepts contradictory because even though people are born a blank slate, he believes their yearning for good and governance by Reason (capital R) demonstrates the order of Natural Law.

Locke believes that God is all-powerful, but that God gave men the ability to rule themselves.  The moral obligation of humanity is to rule itself in conformity with Natural Law.   The way to achieve this goal is to use Reason (the voice of God that was in each man) to maximize good.  Natural Law, and therefore maximization of good, is achieved by avoiding harm to the Life, Health, Liberty, or Possessions of another human.  Man-made law and government are the tools to effect the goal.

Locke solves the problem of an overly powerful ruler by naming God as the power source of that government.  Which only works if you 1) believe in God, 2) believe God is good, and 3) believe that God is interested in government.  Regardless, Locke argues the government is only in compliance with that power if it serves the greater good of all its subjects, and if the government does not maximize the greater good, those who subscribe to Reason had the right and duty to revolt. 

In fact, Locke envisions a healthy government as one that relies in part on what I like to think of as “controlled revolt” – where tensions within the government continually challenge the status quo.  He advocates for separation of powers.  He devises three main functions or powers of government – the legislative (law-maker), the executive (law-enforcer), and the “federative” (essentially, the one who interacts between the socially contracted government and outsiders and/or Natural law). Locke doesn’t necessarily believe that each role needed to be exclusive of the other, but argues that no single entity or person should have all the roles.  Locke does feel that each role should be held by more than more than one entity. 

Locke’s view was more individualistic than Hobbes's.  Hobbes envisioned a sort of "all or nothing" situation - either everyone is at war tearing each other apart, or an absolute monarch is controlling it peacefully.  Locke viewed the State of Nature as an individual journey.  Everyone was born into nature, and born with Reason, and had the choice to determine whether they would be moral and comply with Reason/God.  Therefore, society could be orderly and in compliance with Natural Law even while an individual could be out of compliance. 

The unique aspect of this individualism is the concept of consent to government.   Because men were born “by nature, all free, equal, and independent,” then “[n]o government can have a right to obedience from a people who have not freely consented to it.”

Rousseau

Jean-Jacques Rosseau (1712-1778) was a proud citizen of Geneva who spent a good deal of time in and greatly influenced France.  His life was not short on drama, and his own writings tinge with narcissism and some paranoia.  Despite the exciting storyline, he contributed a great deal academically, and is well-known for healthy debate with contemporary philosophers Hume and Voltaire.  On this subject, Rousseau is known for The Social Contract.

Rosseau starts from the same idea of equality between and self-interest in all people.  He adds to this idea that humans are inherently interconnected, and therefore even at a state of nature a person’s ability to achieve goals is reliant on the actions of others.  As with the prior philosophers, he believes that people are motivated by freedom and “self-love.”  Like Locke, he does not believe government can be forced upon people, particularly the conquered.  Power by coercion is inherently illegitimate; government by coercion is slavery.  Instead, true government is the result of surrender of certain powers by all citizens in order to obtain benefits.  His ideal government is one that defends and protects the “person and goods” of each citizen in such a way that each citizen, while uniting with the common good, doesn’t detect a limitation on freedom. Thus, Rosseau felt that a true government was one that preserved equality – that all people would be giving up the same rights to receive the same benefits.

This is easier said than done, and many note that perhaps Rosseau is better at identifying problems than solutions.  Nonetheless, he makes a major contribution from the standpoint of government in his concept of a General Will – that is, the general will of the governed.  For the General Will to truly govern all persons, it had to come from all persons.  This is difficult to accomplish because the will of individuals or groups will undoubtedly compete for the will of the whole.  Therefore, he defines a good government to as one that included two separate parts – one to govern by making and applying laws (Government), and one ensure the solidarity of the General Will (Sovereignty).   His Sovereign is not a person or a monarch, but the General Will.   And while that sovereign, in his view, does not owe a duty to individuals, it will name and protect individual rights because a proper General Will accounts for the individual rights of all.  

The Takeaway

In short, the purpose of government is to avoid the State of War.  The State of War is rooted in the premise that humans are equal and competing.  A good government resolves competition with equality.  This is done by:

• Representing the wishes of the whole population.

• Preserving both individuals (or individual groups) and society as a whole.  Individuals are preserved by ensuring there are protections for things like life, liberty, and property. Society is preserved by ensuring there is safety, continuity or a future, and a better quality of life.

• Dividing or “checking” the power sources so that the General Will of society remains supreme ensures that humans, who are inherently flawed, will not return to a State of War.

Some references if you’d like to learn more:

• Stanford Encyclopedia of Philosophy – this is an amazing resource for anything philosophy, and is cherished by everyone in the academic field as a cohesive, free forum for almost any philosophical scholar you can imagine.  You can find far more than info on social contract theory philosophers here: https://plato.stanford.edu/index.html

• The Social Contract Theorists: Critical Essays on Hobbes, Locke, and Rosseau. Edited by Christopher Morris, Rowman & Littlefield Publishers, 1998. 

• Jameskane.com – for modern day research on trust and loyalty, which is strikingly similar to social contract theory.