United States Constitution

A written constitution of government such as the U.S. Constitution presents a characteristic set of problems for leadership: meeting the demands of the people for the functions government can provide, while protecting the rights of every person, not only from private, natural or external threats, but from government itself and from tyrannical majorities.

A written constitution, unlike an unwritten parliamentary system of government, is a supreme law that supersedes later laws that conflict with it, unless they are adopted as amendments according to the procedures prescribed in the original constitution. It derives its primary legitimacy not from current assent but from an original historical constituent act of ratification, and no official act, no matter how popular, can be considered legitimate unless it is logically derived from an authorization contained in the written constitution as amended, and as originally understood.

The political theory on which the U.S. Constitution is based is that a society is created by a social contract, or compact. The main proponent of this theory was John Locke, who developed it in his Second Treatise on Government, published in 1690. Although it is possible for a new society to be created by adults coming together and explicitly agreeing to form a new society, people are initially inducted into an existing society by their parents or guardians, beginning with a filial contract between parent and child, which is gradually transformed into a social contract between the child and the other members of the society, through a process of socialization, through which the child makes the transition from being a good child to being a good citizen. The essential terms of the social contract are that its members will mutually defend the exercise of one another's rights, from whatever might impair such exercise.

Every constitutional right is a claim against an affirmative action of government, and complementary to the exercise of a delegation of power to that government. A constitutional provision that protects a right restricts powers, and a delegation of a power restricts rights. A challenge for leadership is to define the line separating the two spheres of action, and to separate and confine the actions of civilians and officials within their proper spheres.

The written constitution ratified in 1789, and the subsequent Bill of Rights, the first ten amendments, declared various rights, with the Ninth Amendment providing for unenumerated rights that complement delegated powers, but the Founders did not have confidence in the effectiveness of such declaratory provisions, which might be easily subverted by interpretation. They rather relied on structural and procedural provisions, which divided the powers of government, allowed the divisions to check the actions of one another, and defined procedures by which departures from constitutional compliance might be corrected. Some procedures were permissive, allowing for the exercise of discretion, and others were mandatory, constrained by defined duties.

In the U.S. model, there are actually two separate constitutions: an unwritten constitution of the society, and a written constitution of the government. The terms of the social constitution are that decisions be made by conventions, or deliberative assemblies, called by proper notice, and conducted by established rules of procedure that comprise due process. A convention may consist of such things as a general election or referendum, in which the voting members of the society function as a convention of the whole, a constitutional convention which may draft or ratify a written constitution of government, a legislature called under the terms of a written constitution, a town hall meeting, a judicial court, a grand jury to conduct an investigation and make a report of its findings, a trial jury to render a verdict, or a militia called to conduct defensive operations.

The U.S. model was a reaction to the British parliamentary model, which had no written constitution of government except statutes adopted by majority vote of the House of Commons, royal decrees, or key court decisions — precedents that might be sustained by tradition, but which can be overturned at any time by the House of Commons, sitting as a kind of ongoing constitutional convention — one that can make its own rules for who may be elected to it and how. The result is the consolidation of power within a single legislative body and a bureaucratic civil service that can easily impair public rights and leave abused persons without the means to seek adequate redress.

Distributed Powers

The problem for leadership is further complicated by the fact that the powers of government are not delegated to a single unitary hierarchy, but are distributed, or separated. A key design objective of constitutional government is to avoid excessive or unbalanced concentrations of power, mainly by dividing it among many branches and individuals, so that abuses by any can be blocked or corrected by the combined action of others. The main separation of powers was between the central government and the several states, a system called federalism. Within the central government, powers were divided between the executive, judicial, and legislative branches, and the Congress — the legislative branch — was divided into two houses, the Senate and House of Representatives. By legislation, the executive branch was further divided and subdivided into departments, the judicial branch into a system of general and specialized trial and appellate courts with various geographic and subject jurisdictions, and the houses of Congress into committees and subcommittees, each with their own staff agencies. The constitutions of each of the states followed a similar design, with the exception of Nebraska, which has a unicameral, or one-house, legislature. Similar separations of powers were done in the territorial governments set up for incorporated territories destined to become states.

In a constitutional republic such as the United States, the people, acting collectively through election, referendum or convention, rather than a monarch or dictator, is the sovereign, or supreme authority, and as such all officials must be accountable to the people by a chain of command that leads back either to officials elected by the people or to bodies, like juries, selected by lot, a process called sortition, from among the people. The appointment, supervision, promotion, discipline, and removal of every official is supposed to be based on how well he or she performs his or her duties under the authority of the Constitution, more than on how well such performance might please the policy preferences of transient majorities.

Although a constitutional republic is democratic in being accountable to the people, it is not usually a majoritarian democracy, in that decisionmaking is moderated by procedures and structures designed to require deliberation, and sometimes by rules requiring approval not just by simple majorities, but by supermajorities, or by majorities in a majority or supermajority of levels or branches to which power is distributed. Thus, amendments to the Constitution require either proposal by a two-thirds vote in each house of Congress, or application by majorities of two-thirds of the state legislatures for a convention to draft amendments, followed by ratification by the majorities of the legislatures of, or of conventions in, three-fourths of the states.

Such procedures and structures confer on certain officials or groups the power to veto, or block, action of various kinds, so that to get action, it is necessary to convince all of the elements whose approval is required. Thus, the President can veto any act of Congress, although that veto can be overridden by a two-thirds vote of both houses. However, he can also refuse to enforce an act of Congress, or sequester the funds for its implementation, a controversial move that can be overcome only by impeachment and removal of the President from office, or by withholding other legislation he might want passed, or appointments he might want approved.

Any federal court can declare or find a statute or other official act unconstitutional, and refuse to give it effect by not sustaining it. If the decision is made by an appellate court, the practice is to treat that decision as a precedent which effectively nullifies that act not only in that particular case but for similar cases in that court's jurisdiction. If the declaration or finding is sustained on appeal to the highest court, the Supreme Court, the act is effectively nullified for similar cases nationwide. Although such a decision does not remove a statute from the records, by the doctrine of stare decisis judges feel bound to follow the precedent, making further enforcement of that act infeasible.

Veto groups can also operate in the Legislative branch. The Senate can block appointments by the President by such procedures as refusing to hold committee hearings on nominations. Committees can refuse to pass nominees to the full Senate, and in the full Senate, members may block action by use of a filibuster, or extended debate intended to prevent business from proceeding, which requires a 60 percent supermajority to terminate.

A winner-take-all system of electing legislators by majority votes from states or single-member districts, together with a nationwide presidential election in which each presidential candidates seeks to also win the election of members of his party to Congress, tends to result in a two-party system, as each main party adjusts its messages to win enough swing voters to exceed 50 percent. One effect of this, however, is that dedicated single-issue constituency groups can become "veto blocks" that may not be able to gather enough support to get their legislation passed, but can block legislation they don't like and defeat candidates who don't at least keep their causes alive. They can also often negotiate the appointment of their partisans to key positions.

The proliferation of single-issue groups means that assembling governing coalitions and placing people in key positions to achieve needed action can be difficult, but this was intended by the Framers of the Constitution. It was expected that most of the situations requiring rapid response could be handled through general legislation and appointees with a certain amount of legislated discretion, and that most new situations that such general legislation did not anticipate would allow enough time to build the kind of consensus needed to adopt new legislation. This has led to some tension between advocates of immediate response to "emergencies" and advocates of deliberation within constitutional structures and procedures, and some of that tension has resulted in departures from constitutional compliance.

Some of those departures have become entrenched, and supported by politically powerful constituencies, who often attempt to conceal the noncompliance with assertions that the established practices amount to "informal amendments" to the "living" Constitution, even though they are not formal amendments to the text. The problem with this elevation of practices to constitutional status, of course, is that once begun there is no end to it, and if allowed to continue would render the written Constitution a dead letter and reduce all law to politics or force.

This displacement of the written Constitution with practice is sometimes discussed as the doctrine of "legal realism", which defines "law" as "what judges do" or can be expected to do, even if what they do is inconsistent with the written Constitution as originally understood. Although it is accepted that everyone has the duty to resolve conflicts of law, including conflicts with the Constitution, in any enforcement of law, and that everyone has the duty to help enforce the law and not just to obey it, the fact that judges get cases last puts them in a position that is sometimes attacked as judicial supremacy by those who think that judicial practice is inconsistent with or unauthorized by the written Constitution. This has been an ongoing tension since the country was founded.

Persuasion

In any political or legal system, leadership ultimately comes to either educating and persuading decisionmakers to adopt one's proposals, or replacing them with other decisionmakers who will. In a constitutional system like the United States, with powers and duties distributed among multiple officials, that means persuading or replacing multiple officials, which may require persuading or replacing the constituencies of those decisionmakers, the networks of lower-level decisionmakers whose own decisions persuade or replace higher-level decisionmakers. Ultimately, that may come down to the level of the individual voter.

Although persuading a few higher-level decisionmakers may be done through personal communications, one may not have access except through chains of lower-level decisionmakers, many of whom may have agendas of their own that conflict with the program of the reformer. Persuading many individual voters, however, may not be feasible through direct communications, and may require marketing methods with high costs and limited effectiveness, competing as they must with demands from work and family, and tastes for entertainment.

When the country was founded, a person could get elected to office without having to raise or spend much money to market his candidacy. There was sufficient demand for political information that it was profitable for newspapers to publish entire speeches of candidates, with the expectation this would sell more copies. However, the political culture has changed so that too many people now resist political information, compelling candidates to resort to expensive marketing campaigns that can break through the barriers and at least achieve name recognition and a positive image.

The Framers designed the Constitution with the expectation that officials would be essentially independent of one another, unduly influenced, if at all, mainly by things like salaries and prospects for reappointment or re-election. They perhaps failed to fully anticipate that, to achieve any result in a divided governmental system, people had to put together prevailing coalitions which would tend to persist from one issue to another and emerge into parties or, as the Founders feared, factions, that would come to exert continuing control over offices and officials in ways that would defeat the separation of powers. The Founders feared too much power being gathered into the same hands, but the same hands can be a faction as well as an individual, and a single faction can dominate all of the levels and branches of government to the exclusion of the others.

The problem the Framers confronted, and perhaps inadequately solved, was what came to be studied by the 20th century as the public choice problem, beginning with the work of James M. Buchanan and Gordon Tullock, set out in The Calculus of Consent: Logical Foundations of Constitutional Democracy. They approached politics through game theory, and showed how people in a society would tend, over time, to involve themselves in the public decisionmaking process in such ways, and to such degrees, as seemed likely to them to pay off, less in the satisfaction that comes from exercising civic duty, than in the material benefits of the public decisions that they could expect to gain for themselves or their friends. Persons would tend not to invest their time and money in the political process unless they expected to profit from that investment. Decisions that had large benefits or costs for some persons would cause those persons to become involved in influencing those decisions, while those for whom the benefits or costs were small would not have a sufficient incentive to invest their influence in ways that would affect such decisions. Therefore, a small faction could gain a large benefit by contriving decisions that did so by imposing only small costs on the general population, at a level below the threshold that would trigger their involvement. This made the political process as a channel for what is called rent-seeking behavior, which is the diversion of wealth from producers to persons who invest not in production but in the processes of politics and government.

In seeking to avoid excessive or unbalanced concentrations of power in the public sector, the Founders neglected to provide for the emergence in the private sector of giant corporate entities that could accrue power that could challenge that of governments, and come to exercise undue influence over government. This has emerged to take many forms: Banks and financial institutions, especially those that loan money to government to support its operations. Contractors, especially in the defense industry. Labor unions. Trade associations. Eleemosynary institutions. Political party organizations. Lobbying groups. Large media organizations. These tend to seek to exercise control by either getting their people appointed or elected to key positions at all levels of key departments, or having handlers for every key position who may assume a position of influence in which their official can't or won't make a decision contrary to the handler's wishes, so that the handler comes to function as the real decisionmaker, in a kind of shadow government that is parallel to the legal government.

This pattern can be more clearly seen in a parliamentary system like that of Britain, where the majority party appoints the official ministers of government, but where the party out of power designates shadow ministers for every department, who may exercise more real influence than the official minister over the lower level civil servants of the ministry, who may have been appointed by that party out of power, and might expect to be promoted if it regains power. Thus a party that has appointed most of the bureaucrats might expect to continue in real power even if it loses an election. The same applies to special interests that function as parties unto themselves.

Since the adoption of a civil service system, the United States has had a similar problem with shadow governance, for while the reform was intended to replace political appointees lacking merit with nonpartisan professionals, what has actually happened is only to make it more difficult for a party that wins elections after a period of dominance by another party to actually govern and implement its policies. The civil service protections have also allowed bureaucracies to become power centers themselves, a constituency often uniquely situated to protect its own interests. The internal politics of organizations is just as contentious as the external politics we see in elections and referenda, and much more difficult to expose and hold accountable.

The problem for leadership in a constitutional republic is to assemble and sustain a winning coalition on an issue, while avoiding opposition from veto blocks.

Further reading:

Ernest Barker, ed., Social Contract, London: Oxford U. Press, 1960. Contains essays: John Locke, An Essay Concerning the True Original, Extent, and End of Civil Government; David Hume, Of the Original Contract; Jean-Jacques Rousseau, The Social Contract.

Locke retrieved August 18, 2003 from http://www.constitution.org/jl/2ndtreat.htm .

Hume retrieved August 18, 2003 from http://www.constitution.org/dh/origcont.htm .

Rousseau retrieved August 18, 2003 from http://www.constitution.org/jjr/socon.htm .

James Madison, Notes of Debates in the Federal Convention, 1840. New York: W.W. Norton & Co., 1987. Retrieved August 18, 2003 from http://www.constitution.org/dfc/dfc_0000.htm . Vol. 5 of Jonathan Elliot, The Debates in the Several Conventions on the Adoption of the Federal Constitution, retrieved August 18, 2003 from http://www.constitution.org/elliot.htm .

James Madison, Alexander Hamilton, John Jay, The Federalist, 1787-88. New York: Bantam, 1989. Retrieved August 18, 2003 from http://www.constitution.org/fed/federa00.htm .

Bernard Schwartz, The Roots of the Bill of Rights, New York: Chelsea House, 1980. See also the Documentary History of the Bill of Rights at http://www.constitution.org/dhbr.htm .

Leonard W. Levy, Original Intent and the Framers' Constitution, New York: Macmillan, 1988.

Herman Belz, A living constitution or fundamental law?, New York: Roman & Littlefield, 1998, retrieved August 18, 2003 from http://www.constitution.org/cmt/belz/lcfl.htm .

James M. Buchanan and Gordon Tullock, The Calculus of Consent: Logical Foundations of Constitutional Democracy, Library of Economics and Liberty. Retrieved August 18, 2003 from http://www.econlib.org/library/Buchanan/buchCv3Contents.html .

J. Patrick Gunning, Understanding Democracy: An Introduction to Public Choice, Constitution Society. Retrieved August 18, 2003 from http://www.constitution.org/pd/gunning/votehtm/cont.htm .

Everett Rogers, Diffusion of Innovations, New York: Free Press, 2003.

M. J. C. Vile, Constitutionalism and the Separation of Powers, Indianapolis: Liberty Fund, 1998.

Samuel H. Beer, To Make a Nation: The Rediscovery of American Federalism, New York: Belknap, 1998.

J. Roland Pennock, ed., Due Process, New York U. Pr., 1977.

Godfrey Lehman, We the Jury: The Impact of Jurors on Our Basic Freedoms: Great Jury Trials of History, New York: Prometheus, 1997.

Kevin W. Hula, Lobbying Together: Interest Group Coalitions in Legislative Politics, Washington, DC: Georgetown University Press. 1999.

Harvey Yorke, The Candidate's Handbook For Winning State and Local Elections. Revised by Carl Yorke, 2002. Available from http://www.candidateshandbook.com .

Harry Helms, Inside the Shadow Government: National Emergencies and the Cult of Secrecy, Los Angeles: Feral House, 2003.