By Allen C. Guelzo, Ph. D., Gettysburg College
The new Constitution put no restrictions on the internal powers the states could exercise. But anything beyond internal powers now became vastly curtailed. Article 1, section 10 set out a lengthy list of powers the states were forbidden to exercise. It might well be wondered what sovereignty the states were left with—for which the answer is, not much.
Under these terms, states could not issue paper currency or at least not currency with the status of legal tender or even mint their own specie. They could not threaten to strike up their own alliances with suspiciously friendly foreign nations. And debtors could not hide behind state boundaries and state courts in order to evade payment of their debts. Charles Pinckney thought these restraints would keep the states from interfering with the powers of the Union, will leave them always in a situation to comply with their federal duties.
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Limitations for Congress
Congress could not levy export taxes so that no one product, agricultural or mechanical, could be favored over another for sale abroad. Congress could not spend money without explicit legislative authorization. Also, Congress could not give anyone a title of nobility, so that the American Republic would see no sprouting of counts, earls, dukes, barons, and with that no handing-over of huge estates carved out from publicly-owned lands to support such a nobility.
States could not be subdivided against their will by Congress, and Congress could not pass the Bill of Attainder, which allowed Parliament, although it was a legislature, to function as a court in determining the guilt of high crimes and the permanent dispossession of the guilty of their property.
George Mason had wanted Congress to have the power to pass laws to forbid the import of luxuries which, presumably, virtuous citizens of a republic should do without as markers of rank and class and the power to restrict voting rights based on property ownership; he got neither one or the other.
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What Makes the American Constitution Unique?
The American Constitution was, and is, remarkable just for being written. In English jurisprudence, there is a British Constitution, but it is actually an accumulation of Parliamentary statute, judicial decisions, and the common law. The American Constitution was ratified through state conventions rather than by an act of the Confederation Congress. It is superior even to statute law. The American Constitution sits above and outside the government, drawing circles of containment around the government.
The American Constitution is also unique for the way it divides sovereignty. We sometimes call this ‘the separation of powers’, and by that, we usually refer either to the division of political powers between the states and federal government or between the branches—the executive branch, with the president at its head; Congress; and the federal courts.
The Branches of Governance
In 1787, the idea of dividing sovereignty was thought to be delusionary; what a nation wanted to do was to concentrate sovereignty, to mass its power as a nation behind a king or a representative institution like Parliament. Just as generals understand that success in war depends on concentrating one’s forces rather than dividing and scattering them, politics in the 18th century could not conceive of effective governance without concentrating sovereignty in one place.
The American Constitution does the exact opposite. It permits the states to enjoy some exercises of sovereignty over their internal affairs, but places other exercises of sovereignty with the federal government; it does the same thing with the branches.
For instance, the Constitution gives Congress the power “to declare War, to raise and support Armies, to provide and maintain a Navy, and to make Rules for the Government and Regulation of the land and naval Forces.” But the Constitution then expects the president to somehow be in charge of managing them all. This kind of separation looked clumsy to the Europeans; but then, Americans were not concerned in the Constitution with efficiency, but with liberty.
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American Constitution: A Document of Mixtures
It created neither a classical republic nor an outright democracy. It made no assumptions about the virtue of the citizenry and imposed no requirements for civic virtue including no property qualifications for either voting or office-holding. Unlike the Articles of Confederation, it made no statement about being a permanent arrangement; and yet it also made no reference to its dissolution, and contained no instruction for withdrawal from its rule.
It provided for a federal judiciary, but only specified the creation of a supreme court and left it to Congress to do so. It winked at slavery, gave no countenance to women’s rights, and failed to specify the qualifications for national citizenship—in fact, it even failed to specify what citizenship was at either the federal or the state level.
‘Negative Liberty’ in the American Constitution
The Constitution was a statement of what Isaiah Berlin once described as ‘negative liberty’. It was meant to free citizens from molestation by power, not to empower or require them to behave in certain ways. The Constitution was designed, as John Patrick Diggins once wrote, to prevent evil, not to realize some virtuous good; to control the abuse of power as the states had done under the Articles.
There was no appeal to sociability, to national fraternité, to class, to religion. The Constitution did not so much attempt to resolve American conflicts, as to detach conflict from authority. In the view of the Founders, it was only men of sinister motives who hoped to link their fortunes to authority; the free citizen pursued his own ends and interests apart from government, and the Constitution was designed to secure that pursuit.
In this way, the Constitution decisively addressed the critical issues of the 1780s—of who should and should not hold power, of the disjointed animosity of the states, of the peril of drifting alone in a sea of aristocratic and monarchical sharks.
Common Questions about the New American Constitution: A New Phase of Governance
Congress could not levy export taxes so that no one product, agricultural or mechanical, could be favored over another for sale abroad. Congress could not spend money without explicit legislative authorization.
Congress could not give anyone a title of nobility. It was done to avoid handing-over of huge estates carved out from publicly-owned lands to support such a nobility.
The US Constitution permits the states to enjoy some exercises of sovereignty over their internal affairs, but places other exercises of sovereignty with the federal government
