Etymology

"The compound government of the United States is without a model, and to be explained by itself, not by similitudes or analogies," James Madison said late in his life.

For all the truth of that, the Founders had models and ideas in mind as they hashed things out in Philadelphia in 1787, and the notes taken that summer by Madison and others are full of them. The Founders were practical men, almost all of whom had had some experience in government. But they also were keen readers and alert to history, as it was known in their day.

Among the models or theories they often brought up in debate or correspondence are the writings of John Locke and Charles Montesquieu; the works of Hume and other writers of the Scottish Enlightenment; British history; and the accounts then available of the confederacies, democracies and republics of ancient Greece and Rome and the Germanic tribes.

All these sources tended toward common conclusions:

1. The laws should rule the government, not the other way around.

2. The government should be the servant of the people, not the other way around.

3. The best defense against danger of monarchial and democratic excesses was a "mixed government" of clearly prescribed spheres and balanced authorities.

The Federalists built the notion of mixed government into the U.S. Constitution. In many details, they strove for a balance between the one president, the few Senators and the Representatives of the many. Something that is lost and forgotten today is the pivotal role of the States in all this.

The conceptual breakthrough that allowed the United States to build a Constitution on the model of Britain's was the one that saw American states as the equivalent of hereditary baronies in the British system. That allowed the Senate -- whose members were appointed by the states under the original Constitution -- to form on the model of the British House of Lords. The power and independent authority of the states were essential elements in the mixed, balanced government formed in 1787.

The respect for them extended even to non-coercion. In the Convention that framed the Constitution it was proposed to give the government power to call out the army to force a wayward state to fulfill its duty. Madison said: "The more he reflected on the use of force the more he doubted the practicability, the justice and efficacy of it when applied the people collectively and not individually. -- A union of the States containing such an ingredient seemed to provide for its own destruction. The use of force against a State would look more like a declaration of war than an infliction of punishment, and would probably be considered by the party attacked as a dissolution of all previous compacts by which it might be bound."[1]

There is a misleading delicacy in the word "balance." The balance of powers in the original Constitution of the United States was like the balance of an engine made for hard, fast work. The essence of that Constitution was this: The laws rule the government, the constitution embodies those laws, and the people -- in part on their own agency, in part through the states -- tune and drive the Constitution.

"The basis of our political systems is the right of the people to make and to alter their constitutions of government," Washington said in his "Farewell Address." "But the Constitution which at any time exists, till changed by an explicit and authentic act of the whole people, is sacredly obligatory upon all."

And that includes the president who is elected under it and sworn to uphold it. It was built to stand the test of a crisis, and it did so; in 1814 the capital itself was burnt, American armies suffered defeat in the field and a populous section of the nation met to consider secession. Yet the Constitution still ruled.

So far from envisioning powers of government beyond the Constitution, even in times of "necessity," Hamilton went so far as to say that a Bill of Rights was unnecessary, "For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?"[2]

The presidency in particular, as the most "monarchical" aspect of the Constitution, was given extremely limited direct power. Where the "life, liberty or property" of a private citizen is concerned, the president's only power is that prescribed in the third section of the second article, which requires, "that he shall take care that the laws be faithfully executed."

"It is important, likewise," Washington wrote, "that the habits of thinking in a free country should inspire caution in those entrusted with its administration, to confine themselves within their respective constitutional spheres, avoiding in the exercise of the powers of one department to encroach upon another. The spirit of encroachment tends to consolidate the powers of all the departments in one, and thus to create, whatever the form of government, a real despotism."

The Founders all knew war first-hand; war on American soil, with a full third of their own countrymen against them, often in arms alongside the enemy. They built into their work machinery to handle treason and rebellion. But they also knew that crisis and war were favorite tools of demagogues. Hamilton reminded his readers of "the celebrated Pericles," leader of Athens, motivated by fear and personal pique, who led his nation into a bloody and ruinous war to save his own political skin and to escape the economic damage he had helped visit upon the state.[3]

Hamilton saw that a leader who took America into war could use the circumstance to rob her of cherished liberties: "The violent destruction of life and property incident to war, the continual effort and alarm attendant on a state of continual danger, will compel nations the most attached to liberty to resort for repose and security to institutions which have a tendency to destroy their civil and political rights. To be more safe, they at length become willing to run the risk of being less free."[4]

"If, in the opinion of the people, the distribution or modification of the constitutional powers be in any particular wrong," Washington wrote, "let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed. The precedent must always greatly overbalance in permanent evil any partial or transient benefit, which the use can at any time yield."

In Washington's "Farewell Address," the connection between perpetual voluntary union, and obedience to the Constitution, is explicit. His prayer for the country, he said, was, "that your union and brotherly affection may be perpetual; that the free Constitution, which is the work of your hands, may be sacredly maintained."

The cult of the union, as it evolved in the Civil War era, identified "liberty" and "union" as essentially identical. But to the Founders, "liberty" was tied to the balance of powers they had carefully woven into the Constitution: "Liberty itself will find in such a government, with powers properly distributed and adjusted, its surest guardian," Washington wrote. "It is, indeed, little else than a name, where the government is too feeble to withstand the enterprises of faction, to confine each member of the society within the limits prescribed by the laws, and to maintain all in the secure and tranquil enjoyment of the rights of person and property."[5]

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