A government of limited powers

The Constitution of the United States is little more than two hundred years old. It has survived civil war and the territorial expansion from thirteen largely agricultural former colonies on the eastern seaboard to an industrial nation of fifty states that stretch across the continent to Alaska and to Hawaii. It has overseen the emergence of the most powerful democracy in the world. The American political system was subjected to severe strains in the twentieth century: the need to mobilise for two world wars, the depression of the 1930s, the changing role of government since the Second World War, the challenge of the civil rights movement, the impact of the Vietnam War and the shock of the Watergate affair which resulted in the resignation of President Richard Nixon. In the first years of the twenty-first century the challenges seemed to multiply rapidly: the terrorist attack on the World Trade Center in New York and on the Pentagon, the wars in Afghanistan and Iraq, Hurricane Katrina and its aftermath. The major challenge to American society, however, has been developing since the end of the war in Vietnam. That war jolted the faith of Americans in the inevitability of progress, and in the superiority of their system of government. It also brought to an end the era of the ‘melting pot’, the assumption that all Americans, whatever their origin, would assimilate to American values, adopt English as their first language, and necessarily revere the institutions embodied in the Constitution of the United States. In other words, America has had to face the fact that it is a multicultural society.

In spite of these challenges, superficially the most striking characteristic of the American Constitution is its continuity and stability, the unchanging shape of its major structures. Within this apparently stable framework, however, deep and significant changes in the nature and working of the American political system have taken place: the changing character of the system of federalism; the continuously fluctuating relationship between Congress and the presidency; the transformation of the system of political parties; the rise of the mass media and their impact upon the political system; the changing role of the Supreme Court; these and many other factors affect the working of politics in the United States at the beginning of the twenty-first century. It will be our task to explore the building blocks that go to make up this complex pattern, to try to bring out the rich variety of American political life, and to assess the direction in which it is moving.

 

The challenge of American history

The history of what was to become the United States of America illustrates the diversity of the origins of the country, and also explains the structure of its institutions. In the sixteenth century the European powers, Spain, France and England, began to settle on the mainland of North America. Spain made repeated efforts to colonise Florida, establishing the city of St Augustine in 1565, then pushing northwards and establishing missions. Florida became British in 1763, reverting to Spain after the War of Independence. Spain also settled California, but not until the eighteenth century, establishing a mission at San Diego in 1769. California became part of the newly independent Mexico in 1821, and was ceded to the United States in 1848 along with New Mexico, Texas having been annexed in 1844. France, in addition to its colonisation of Canada, expanded into the Mississippi Valley and founded the city of New Orleans in 1718. By the middle of the eighteenth century France laid claim to a huge tract of land stretching from the Gulf of Mexico to Hudson’s Bay. The defeat of the French by the British in Canada in 1759 and the purchase of Louisiana by the United States in 1803 ended French colonial power in North America. The Dutch established New Amsterdam, renamed New York when captured by the British in 1664. Alaska was part of the Russian Empire until purchased by the United States in 1867. The Kingdom of Hawaii was annexed by the United States in 1898 and became the fiftieth state in 1959.

The English, in contrast to the Spaniards and the French, developed their American colonies largely through commercial expansion, the Crown granting huge tracts of land to companies to develop trade. Starting with the Royal Charter of the Virginia Company in 1606 a series of expeditions were mounted which by the 1770s had resulted in the establishment of thirteen colonies poised on the east coast of the continent. Each colony had its distinct social composition and religious affiliations, and its own economic interests. Each colony had its own constitutional structure; attempts were made to establish a system of government reaching across the colonies, but they did not succeed, and therefore until the Revolution the colonies’ political links were with London. Thus when independence came in 1776 the colonies transformed themselves into independent states, each state establishing its own constitution, and only loosely affiliating with other states through the Articles of Confederation in order to conduct the war against Britain.

When the Convention of the representatives of the states met in Philadelphia in 1787 to recommend a new form of government for the United States of America they had two main concerns. First, they wished to create a system of government that would be strong enough to defend their territory against attack, and which would have the basic unity through a common currency to provide the opportunity for economic development. But they did not wish to destroy the states, or to strip them of their role as the main sources of civil and criminal law for their citizens. They therefore invented a modern system of federalism, in which the functions of government were divided between the newly created government of the United States and the governments of the states. Their second concern was to create a government which was strong enough to provide stability for an emerging nation but which would not be dominated either by a single person or by the elected representatives of the people. They were equally afraid of autocracy and of mob rule. They adopted a system of separation of powers, setting up barriers between the legislative, executive and judicial branches of government, giving them the ability to check each other’s actions. It is this combination of federalism and the separation of powers that gives to the United States its particular characteristic as a system of limited government, in which no single part of the system has the power to dictate to the others. The result is the complex process of policy-making that we will explore in later chapters. Having created the structures of government in the Constitution they then turned to the setting up of the Bill of Rights of 1791, reflecting their fear that the new government might abuse its power and oppress its citizens. The Bill of Rights set further restrictions on the power of governments, initially limiting the power of the federal government and later the powers of state governments, in ways which are of considerable importance today, particularly in the field of civil rights.

 

Federalism

 The United States is a federal system of government, in which fifty individual states each have their own position of legal autonomy and political significance, sharing authority and functions with the central government, which, rather confusingly, is called ‘the federal government’. When the thirteen original states came together in 1787 to draft a constitution they wished to unite in order to be able to provide for their common defence and to ensure that certain essential activities were performed by the future ‘Government of the United States’. They did not wish to lose their individual identities, or to give up their power to control those matters which directly affected their own citizens. Virginia and New York, Massachusetts and South Carolina were proud of their separate communities, and of the considerable degree of autonomy that they had enjoyed under the distant rule of the British Parliament. They therefore rejected the particular form of the unitary nation-state that had been established in Britain and France in which all legal power, ‘sovereignty’, was concentrated in the hands of the central government. They placed sovereignty in the Constitution, and distributed the powers of government between the states and the federal government, so that neither level of government was all-powerful, neither could simply control the other.

This modern form of federalism, which was adapted from the model of ancient Greece, has been copied, with variations, all over the world, in Switzerland, Canada, Australia, India, Germany and other countries, and is now being laboriously evolved in Europe. The states are not sovereign bodies, but they do exercise powers and carry out functions that in unitary states, such as the United Kingdom, are normally allocated to the central authority. The Constitution set up a division of power between the federal and state governments, which initially limited the former principally to the fields of defence, foreign affairs, the control of the currency and the control over commerce among the states. All other powers, the residual powers, were left to the states. This division of power has been eroded with time, so that today the functions of the federal government have been extended beyond all recognition, touching most of the important concerns of the citizens of the United States. The federal government remains limited in its powers by the Constitution. However, the greatest protection for the continued power of the states lies in the decentralised nature of American politics. The United States Congress could, if it wished, considerably diminish the powers of the states, but the pressures exerted upon Senators and Members of the House of Representatives, by their constituents and by interest groups, ensure that the powers of the states are respected. Thus although the power of the states relative to the federal government has been considerably reduced, they continue to be extremely important and politically powerful centres of government activity.

The importance of the American states as legal entities is still considerable. At the time of the ratification of the Constitution almost every important government function was exercised by the states. Even today most of the civil and criminal law that governs Americans’ lives is state law. Family law, traffic law, commercial law, even the question of whether a murderer should face the death penalty or not, are, in the first instance, a matter for the state legislature to decide. For example, in 1996 a referendum was held in California that allowed the use of marijuana for medical purposes and other states followed suit; in 1997 the state of Oregon passed its Death with Dignity Act, which authorised doctors to employ euthanasia in certain circumstances. The Attorney General of the United States attempted to prevent the state legislation from being implemented, but the US Supreme Court held his actions unlawful. The states have important regulatory functions, laying down many of the rules that business, agriculture and the trade unions must observe. Take a very modern activity – the energy industry. There is a federal regulatory body for the energy industry, the Federal Energy Regulatory Commission, but its jurisdiction is limited to the regulation of wholesale trade in energy and the transmission of natural gas, oil and electricity across state lines. State agencies regulate the sale and transmission of energy within the state, setting retail prices and enforcing service and quality standards.

The states have extensive powers of taxation, and together with their local governments spend very large sums on social welfare, education, health and hospitals, and other services. For more than a century after independence the combined expenditures of the states, together with the cities and counties under their control, exceeded those of the federal government. However, as the role of government in economic and social policy changed, particularly after the Great Depression of the 1930s, the importance of the federal government increased and federal expenditures surpassed those of the states.

The powers and functions of the American states far exceed, therefore, the role of local governments in unitary countries, and they enjoy considerable constitutional and legal autonomy in the way they fulfil this role. They are subject to two major limitations: first, they must observe the Constitution of the United States and obey valid laws of the federal legislature made under that Constitution. If state laws offend against the Constitution or conflict with valid federal laws, then the Supreme Court will declare the state laws to be unconstitutional. In the same way, if an Act passed by Congress is found to be an improper exercise of power over state governments, then the Supreme Court will invalidate the federal law. The Court invalidates federal statutes in this way from time to time, but it invalidates far more laws of the states. Over the past two centuries the Court has gradually expanded the constitutional power of the federal government, and consequently restricted the power of the states, but federalism in America is still very much alive and it draws its vigour from the diffusion and decentralisation of political power as well as from the precepts of constitutional law.

The second limitation on the power of the states is their relative lack of financial resources compared with those of the federal government. The latter’s ability to tax effectively is greater than that of any individual state, or of all the states combined, and this financial power enables the federal government to obtain the compliance of the states by offering them grants-in-aid to which conditions are attached. Since the 1930s the federal government has chosen to administer many of its programmes through state and local governments, and has therefore put them in the position of acting as its agents. In 2003 state and local governments received $387 billion from the federal government in grants-in-aid, but most of the social welfare programmes that are set up in this way require the states to match the money provided by the federal government with their own funds from state taxation. The level of provision of social welfare benefits varies considerably from state to state; rich states can provide better benefits than poorer states. In 2004 the average monthly payment to the disabled varied from $960 in Nevada to $819 in Maine; the average weekly payment for unemployment benefit ranged from $351 in Massachusetts to $172 in Mississippi. To some extent these differences reflect differing levels of income in the states; to some extent they reflect differing social philosophies from state to state. It makes a real difference which state you live in There have been powerful centralising forces at work, particularly in the twentieth century. It can be argued that the states have lost so much of their autonomy that the United States is no longer truly federal in character, but is now simply a highly decentralised unitary state. Attempts have been made to reverse this process, particularly by Presidents Nixon and Reagan. They proposed the introduction of ‘revenue-sharing’, which would return functions to the states and finance their activities through unconditional block grants. The attempt to return to an earlier era did not have much success at the time, but recent changes in federal legislation, particularly in the field of welfare, have moved power back to the state governments.

 

The separation of powers

The Founding Fathers of the American Constitution were determined to prevent any section of the new government from abusing its power. They had experienced what they considered to be the despotism of George III, the King of Great Britain, and of the royal governors of the colonies, but the democratic excesses of the state legislatures after the revolution had also frightened them. Like most of the men of wealth and property in the eighteenth century, the framers of the Federal Constitution did not believe that government should exercise considerable power. They were frightened by two spectres: despotism and democracy. They wished to avoid the tyranny of one man, or of many. They therefore constructed a constitution that would avoid both evils, by separating the parts of government, and by balancing them against each other.

The twin doctrines of the separation of powers and checks and balances characterise the American Constitution. The president was to be elected indirectly by means of an Electoral College that would remove the choice of this official from the hurly-burly of mob politics. The Congress was to be divided into a House of Representatives, which represented the people in proportion to population, and a Senate, which gave equal representation to the states. The judicial power was to be vested in a Supreme Court. No member of the legislature was allowed to be a member of the executive branch (with the exception of the vice-president), thus ruling out cabinet government on the English model, which at that time was seen as a monarchical or aristocratic device to control the representatives of the people. The personnel of the three branches of government – legislature, executive and judiciary – were strictly separated, except for the vice-president, who was named as the presiding officer of the Senate. But the Founders were not satisfied that this alone was a sufficient check to the abuse of power, in particular the abuse of power by the legislature. They had witnessed the experience of the American states during and after the Revolution, when the state legislatures had interfered in executive and judicial affairs, and there had been nothing to prevent them from doing so, except, as Jefferson put it, ‘parchment barriers’, that is written constitutional provisions. They therefore instituted a number of checks to the exercise of power. The president was given a limited power to veto legislation, and the Supreme Court would interpret the laws and the Constitution, although the latter power was implicit rather than explicit in the Constitution. The Americans had moved back somewhat, therefore, towards the ideas behind the eighteenth-century constitution of England, but they did not go all the way. They were not prepared to give to their president the prerogatives that had been exercised by the British monarch. They gave to Congress the power to declare war, they subjected the making of treaties and of the appointment of senior officials and judges to the approval of the Senate, and they provided that the president’s legislative veto could be overridden by a two-thirds majority of both Houses of Congress. Thus they erected the structure of government in such a way that no single part could of itself exercise supreme power. To obtain effective action there had to be agreement between the differing parts of the system of government. To ensure the stability of this system they provided that the Constitution could be amended only by a long and difficult process, which required the agreement of threequarters of the legislatures of the states. Thus the major political problem in the United States has been the working of this Constitution, particularly in moments of crisis, in order to get the necessary decisions taken.

 

The Bill of Rights

The Constitution came into effect in 1789 and set up the institutions of the new government, but only after a heated debate that brought about a compromise between the supporters and the opponents of the proposed new regime. The Convention which produced the constitutional framework was dominated by the Federalists, the proponents of a central authority with sufficient powers to establish and maintain an effective system of government to serve the needs of the ‘United States’ as a whole. In order to come into force, however, the constitution had to be ratified by at least nine of the twelve states that had been represented at the convention. There was great opposition to the new system from the Anti-Federalists, those who feared that the federal government would become dominant over the states and would be able to oppress their citizens. In state after state there were demands for amendments to be made to the draft constitution to meet these fears. The formal requirement of ratification by nine of the states was achieved on 21 June 1788, but two of the largest states, Virginia and New York, had still not agreed to implement the constitution. Without them the new government would hardly be able to survive. The leaders of the Federalists pledged themselves to make changes in the Constitution, and as soon as the first Congress was assembled, a resolution was introduced to add ten amendments to the Constitution, which were ratified in 1791 and became the Bill of Rights. It set out in detail the protection that was felt to be necessary to guard American citizens against possible oppression by the new federal government. The freedom of religion, of speech, of the press, the freedom to bear arms, freedom from arbitrary arrest, and the right not be deprived of life, liberty or property without due process of law were set out in the Bill of Rights.

Federalism and the separation of powers fragmented the constitutional system, ensuring that no section of the government could exercise supreme power. To these limitations on the power of government the Bill of Rights added another set of checks to the exercise of power, but it did not guarantee that all Americans were free from oppression. The Bill of Rights was directed against the federal government, and its framers intended that each state should be left to safeguard the rights of its citizens. However, two groups of people who lived in America, most of whom had been born there, were not citizens: the first group were slaves, the second American Indians (Native Americans). The Constitution did not abolish slavery, although it did give Congress the power to abolish the slave trade, but not before 1808. Slavery was eventually abolished in 1865 by the Thirteenth Amendment to the Constitution, but the rights of the former slaves, and of their descendants, were not secured by the constitutions of the states, certainly not in the South. In the Southern states laws were passed setting up racial segregation in education, in transport, and in public and private facilities such as libraries and restaurants. Blacks were excluded from the exercise of the vote, and often subjected to ‘mob justice’, the rule of the lynch mob. It was not until the midtwentieth century that the Supreme Court of the United States extended the protection of the Bill of Rights to the areas covered by state law, and racial discrimination, political manipulation and the improper use of police powers came under judicial scrutiny. The American Indians, later to be confined to reservations, were not citizens. Chief Justice Marshall summed up their legal status in the case of Cherokee Nation v. Georgia in 1831. Indians, he said were ‘in a state of pupilage. Their relation to the United States resembles that of a ward to his guardian.’ At the end of the nineteenth century and the beginning of the twentieth citizenship was extended on a piecemeal basis to Indians, for example to those who had served in the armed forces in the First World War, but it was not until 1924 that all Indians were made citizens of the United States.

 

Unity and diversity

The settlement of the area that now forms the United States involved a long, continuous process of expansion from the original colonies established on the eastern seaboard, a process that has not ended even at the present time. The vast influx of population into Colorado, Arizona and New Mexico in recent years and the development of Alaska represent, in differing ways, the last stages of the passing of that phenomenon that dominated the history of America throughout the eighteenth and nineteenth centuries – the moving frontier The moving frontier of settlers, with its saga of pioneering feats, of cowboys, of Indian fighters and of the life of its frontier towns, has been proposed by some historians as the prime explanation of the nature of American society, American politics and even the American national character. Whatever the exact importance of the frontier, the broad outlines of its significance for America can hardly be in dispute. The frontier was a continuous recreation of the story of American society. It was a reminder of the ‘open’, democratic character of America, in which a man might carve out his own fortune from the wilderness. It was a constant portrayal of the opportunities that America offered, for although the hopes of the pioneers were often sadly disappointed, they were sometimes glowingly realised. The continued westward expansion gave to American society and politics some of its most persistent traits. It helped to perpetuate those characteristics that had marked America from the beginning. If socialism failed to find a root in America because feudal class structures had never existed, it was certainly excluded from later development by the open conditions created by the frontier. It was not until the 1920s and 1930s, when the era of expansion was over and America began to resemble rather more closely the economic systems of ‘closed’ European nations, that American politics took on something of the attitudes of Western Europe.

Even in the early stages of American history the regional differences in climate, soil and natural resources gave rise to distinctive interests and differing ways of life in the colonies. New England, the Middle Atlantic states and the South differed in the crops they produced, in the role of commerce in their economic life and, particularly because of the existence of slavery, in the very structure of their society. As settlement progressed inland, there began that series of tensions between the more highly developed areas and the farmers and settlers on the frontier that provided some of the most persistent themes of American politics. Farmers resented the eastern commercial and financial interests that provided the material resources and the capital necessary to subdue the wilderness – at a price. The concentration of industry and commerce near the eastern seaports, and the consequent growth of urban centres in the northeast region, exacerbated all the traditional differences between city and rural dwellers. Furthermore, as each new area of the United States was settled it acquired a character of its own, partly because of the nature of its economic structure, partly because of the people who settled it. The moving frontier became the unrolling of that map of regional and sectional differences that formed the basis of American politics in the nineteenth and twentieth centuries, and which even today plays a muted but essential role in the working of American politics.

The existence of the frontier provided the mechanism by which some of the most divisive elements in American politics were introduced. As the development of the South progressed, the value of African slave labour in producing the South’s staple commodities, first tobacco and later cotton, was recognised. The establishment of slavery, together with the fact that it was best suited to a particular area and largely restricted to that area, has been a cardinal influence upon American politics to this day. The place of blacks in American society, their historic sense of resentment at their former status, and their struggle to achieve social and economic equality with white Americans are still a major factor in American politics, not merely in the South, but across the nation. The improvement in the economic and social status of the descendants of the former slaves, particularly since the 1950s, can be counted as a considerable achievement, but inequality between the white and black population is still embedded in American society. In 2004 28 per cent of the white population had had a college education, but only 17 per cent of the black population had a university degree. The median family income for whites was $55,938, for blacks $34,608.

As westward expansion continued in the first half of the nineteenth century, with the continuous creation of new states, the balance of power between North and South that had been established by the Constitution was endangered. The problem of whether the new states would be slave or free dominated the politics of the era. If slave, they could be expected to side with the South; if free, to align themselves with the North. The holocaust of the Civil War, the effects of which have not been fully eradicated even today, was the result of the inability to find an acceptable formula to deal with this problem.