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Against the arbitrary rule of George III, the American Founders opposed the rule of law. On the most fundamental level, in their Declaration of Independence, they appealed to the laws of Nature and of Nature’s God against tyrannical violations of the unalienable rights established by those laws. Eleven years later, in designing the human, conventional, constitutional law that reframed the federal government, the Founders established a republican regime intended to prevent the return of arbitrary rule to their country.
Of the three branches of government, they put the legislature first; understanding that the perfect, divine Lawgiver established the rule of His laws in nature, the Founders knew that procedures established for imperfect, human lawmakers needed to keep such persons directed toward the defense of the natural laws. Congress also ‘came first’ for a historical reason: In our first constitution, the Articles of Confederation, the legislature was the only branch of government. Not only was Congress itself unicameral, but the executive and judicial powers were folded into it.
Such legislative dominance had seemed to make the rule of law unquestionable, but the contrary turned out to be true. Under the Articles, laws passed by Congress couldn’t penetrate into the states to govern individual citizens. This left an apparently formidable, unicameral federal legislature dependent upon the states for revenues and for enforcement. The purpose of the rule of law is to place a layer of protection between the persons enforcing the commands of government and persons ruled by those commands. But the rule of law is nonetheless a form of ruling. Under the Articles, the states amounted to a second, political ‘layer’ of authority; the federal government could enact laws but it could not rule by those laws. As Publius writes in The Federalist, “Government implies the power of making laws”; it also implies the power of enforcing them.
If the federal government shall truly govern, however, additional safeguards needed to be built into it. A unicameral legislature that made laws but also enforced them and judged cases arising under them, reaching down to individuals within each state, might behave like a many-headed version of George III. Better, then, to follow the longstanding recommendation of John Adams and establish a bicameral legislature. With the legislators in one house proportioned to the population of the states, the popular or democratic character of American republicanism would survive. Although women couldn’t vote in most states, the percentage of adults who could vote in the United States was still higher than in any other legislative body in the world at that time–far higher than in the British House of Commons, for example, whose members were elected by no more than fifteen percent of the adult population. By contrast, not only were the House members chosen by a more broadly-based electorate, but members themselves needed to meet no property requirements. Publius observes, “Under… reasonable limitations, the door of the House of Representatives is open to merit of every description, whether native or adoptive, whether young or old, and without regard to property or wealth, or to any particular profession or religious faith.”
The other branch of the legislature, the Senate, exists to protect the states, which exchanged their power effectively to veto federal legislation for a hand in making that legislation. With each state equally represented in the Senate, and with Senators elected by their state legislatures, citizens in every state could feel confident that the federal laws which would now rule them directly would not compromise the rightful powers of the states. In addition, the requirement that any proposed law would need approval of both houses, and that the senators would serve terms three times longer than members of the House, guarded citizens against what Publius calls “sudden or violent impulses” in lawmakers who might otherwise be swept up in the passions of the moment.
Although our contemporaries frequently use the terms ‘democratic’ and ‘republican’ as if they were synonymous, the Founders did not. The purpose of republican or representative government, as distinguished from the pure democracies of ancient Greece, where all acted as legislators and often as judges in the assembly, was precisely to empower reason over passion, to obtain “a cool and deliberate sense of the community,” as Publius phrased it. “Had every Athenian citizen been a Socrates”–a philosopher, a person ruled by reason–“every Athenian assembly would still have been a mob,” so powerful the passions become when human beings begin to orate at one another. Had Athens had a senate, Publius goes on to observe, Socrates would not have been put to death by his countrymen; the existence of a second seat of deliberation would have slowed things down, given Athenians time to think the matter through.
Despite their longer terms in office, and despite the property qualifications required of senators, the United Sates Senate would be no voice for an aristocracy, no House of Lords. The Constitution prohibits laws establishing primogeniture, the social and economic foundation of landed wealth. Senators may be richer than members of the House, but they are every bit as ‘common.’ All Americans are ‘commoners.’
As a final precaution, the framers of the 1787 Constitution carefully enumerated the powers of the federal government. Congressional law governs interstate and international commerce, the military (including the militia), and establishes a federal judicial system operating under what Publius calls a “uniform rule of civil justice.” Other powers remain in the states, or in the sovereign people.
Given these legal and institutional safeguards, why then do we now see such an extraordinary concentration of power in the federal government? Part of the answer may be seen in the transformation of Congress, a transformation undertaken and completed in the first seven decades of the last century, but especially between 1933 and 1969. That transformation, amounting to a partial regime change, will be the topic of the next essay.
Will Morrisey is William and Patricia LaMothe Professor Emeritus of Politics at Hillsdale College, and is a Constituting America Fellow; his books include Self-Government, The American Theme: Presidents of the Founding and Civil War and The Dilemma of Progressivism: How Roosevelt, Taft, and Wilson Reshaped the American Regime of Self-Government.
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