This essay first appeared in the November 10, 2021 issue of The Epoch Times. It is the second installment in that newspaper’s American Promise series.
The Declaration of Independence expressed a common American creed: All are born equal before God and the law, God bestows humans with natural rights, some of these rights are unalienable (untransferable), it’s the purpose of government to secure them, and if a government incorrigibly fails to do so, the people should replace it.
However, the Declaration didn’t erect a system of government. It was an international law document that (when backed by arms) converted the colonies into new states with their own governments.
By 1787, it was clear that the states and their treaty organization, the Articles of Confederation, were unequal to the task of American governance. Accordingly, their legislatures sent commissioners (delegates) to a convention of the states in Philadelphia. We often call those commissioners the Constitution’s framers.
Their task was to craft a structure of government that would serve, to the extent possible, the principles of the Declaration. “To the extent possible” because the framers had to work around customs and institutions that violated those principles, but which they couldn’t change—such as slavery.
The framers had thought and read a great deal about government. They wanted government to serve the overarching purpose of protecting natural rights. But they believed that for an American government to do so, its constitution must include provisions that incorporated five distinct values:
- Protection for liberty;
- effective government;
- decentralization, and
- fiduciary standards.
Protections for Liberty
The Constitution was structured to maximize the likelihood that the federal government would respect liberty. The framers believed the Constitution’s most important safeguard for liberty was that it granted only limited powers to the central government.
Other guarantees to preserve liberty included periodic elections, an independent judiciary, checks and balances among the government’s different branches, and, a list of powers specifically denied to the federal government (Article I, Section 9). Two years after the Constitution became operative, that list was supplemented with the first 10 amendments: the Bill of Rights.
Nearly everyone participating in the constitutional debates of 1787–1791—irrespective of whether he or she supported the Constitution—believed government under the Articles of Confederation didn’t have sufficient “energy.” Americans needed a stronger central authority.
A central feature of the framers’ plan for effective government was giving Congress power to tax and regulate individuals directly—a power the Confederation Congress didn’t have. Unlike the Confederation, the new government wouldn’t have to rely on the states for revenue.
Similarly, the Constitution enabled the federal government to enforce its own laws without state interference. Instead of the central government resting wholly on the states, the central government and states would form largely parallel structures.
The framers also replaced the Confederation’s committee system with a single chief executive: the president. The president could enforce laws, make treaties, and command military operations without getting bogged down in committee debates. He would be solely responsible for the consequences.
In a few cases, the framers decided that the principle of the single executive should be limited for the protection of other values. For example, any treaties the president made were subject to approval by two-thirds of the Senate. Likewise, his nominations for high office were subject to approval by a senatorial majority.
Although all the framers had grown up under monarchy, they agreed that the new federal government would have to be a republic. They also wrote into the Constitution a requirement that every state have a “Republican Form of Government.”
You may have heard that Constitution created a “republic, not a democracy.” But that was a distinction created at a later time (the 1840s) (pdf). Founding-era Americans often referred to their own governments as democracies as well as republics.
Historically, most republics had allowed assemblies of the citizens to make laws without the intervention of legislatures. For several reasons (such as the huge size of the United States) the framers opted for an American republic with purely representative lawmaking. However, the Constitution doesn’t prevent the states from using institutions of direct democracy.
What does the Constitution mean by a “Republican Form of Government?” Eighteenth century dictionaries commonly defined “republic” to be “a state in which the power is lodged in more than one”—that is, a state without a king or a dictator. The framers believed republics must have two other qualities as well. The first was a government ultimately responsible to the citizenry. The other was respect for the rule of law.
James Madison famously argued that a republic couldn’t be a “pure democracy.” That phrase was his rendering of Aristotle’s teleutaia demokratia. (Better translations are “ultimate democracy” or “terminal democracy.”) Teleutaia demokratia was a corrupt form of democracy in which there were no magistrates and the mob ran everything. Although it had no king and was responsible to the citizenry, a teleutaia demokratia wasn’t a republic because it disregarded the rule of law.
Many of America’s founders—John Adams among them—believed that republics could survive only if the citizenry remained virtuous. They argued that government should ban immoral practices and promote religion. The framers agreed to the extent that their Constitution forbade the states from enacting some measures, such as tender laws (pdf). These were seen as inconsistent with republican virtue. However, the framers left most issues of religion and morality to the states.
Decentralized Government (Federalism)
Although some of the framers preferred a constitution that rendered the states largely subordinate to the central authority, most soon recognized that the American people wouldn’t accept any system that concentrated power in the national capital. Accordingly, the Constitution divided authority between the federal government and the states. Even this balance proved unacceptable to the public, so the Constitution’s advocates had to agree to amendments further limiting federal prerogatives—the Bill of Rights.
Decentralization served several purposes beyond merely rendering the Constitution more acceptable. For one thing, it helped protect liberty from federal abuse. If the government proved oppressive, the states would be strong enough to protect their citizens in ways that James Madison outlined in his writings (pdf), including but not limited to amending the Constitution.
Decentralization offered other advantages. It made a national aristocracy less likely. It enabled different states to respond to the preferences and cultures of local majorities. It enabled states to experiment with different policies and to compete for citizens and businesses. And because state officials were far more accessible to most people than federal officials, state officials usually enjoyed better information about the people’s abilities and needs. This usually resulted in better government.
When a person entrusts responsibility and power to another, lawyers say that the two have a fiduciary relationship, and they call the person entrusted with power a fiduciary. Common examples are trustees, guardians, agents, managers, corporate officers and directors, attorneys, accountants, and bankers.
During the Founding Era the law imposed high standards on fiduciaries. Those standards were very similar to those the law imposes today. A fiduciary’s obligations include the following:
- To obey instructions and honor any limits imposed on the fiduciary’s power;
- to act in a manner loyal to the interests of those served, and therefore to avoid (or at least disclose) conflicts of interest;
- to act in good faith—that is, to be honest;
- to exercise independent judgment;
- not to delegate that judgment without authorization;
- to exercise an appropriate level of care;
- if a fiduciary managed property for more than one person, to treat them impartially; and
- To provide regular accountings (reports) explaining how funds and other property were managed.
The framers believed government officials were fiduciaries for the people—that officials exercised a “public trust” (pdf). Thus, the framers believed that to the extent politically possible, officials should be bound by fiduciary standards.
The Constitution is filled with provisions mandating or encouraging fiduciary standards. By way of illustration, Congress may impose import taxes, but they must be uniform throughout the country (Article I, Section 9, Clause 6). This was to prevent Congress from favoring some ports over others, in violation of the fiduciary duty of impartiality.
The Constitution also balanced the duty to be impartial to individuals with the duty to be impartial to states. This helps explain the allocation of the two chambers of Congress: In the Senate, the states are represented equally, while in the House the people are (more nearly) represented equally (Article I, Sections 2 and 3).
The framers didn’t permit some values to crowd out the rest. They balanced them and, where necessary, qualified them. An example discussed above is the treaty-making process, in which the principle of the unitary executive was sacrificed to the principle of liberty by requiring Senate approval. The framers made many such compromises, and the historical record generally validates the wisdom of their decisions.