The United States, Past, Present, and Future
It has, without question, been a long road from the summer of 1787 to the American constitutional regime as it is presently construed. Things have remained remarkably consistent over the years to be sure. The Founding Fathers would undoubtedly be thrilled to see that the government they created is still in existence, and still doing a relatively good job in securing the rights of the American people. This was, after all, their chief objective.
That said, things have changed in very significant ways. The government of the United States has always been a work in progress, and it remains so to this day. The changes that have occurred have, in a number of respects, redefined the constitutional balance of the republic, and it is every bit as important to understand this constant redefinition of the regime, as it is to understand the original design itself.
The first thing that should be clear is that the United States government is a good deal more powerful now than it was under the original design. The government is still limited, but it is not nearly as limited as it once was. This is a direct result of the line of thought which emerged from McCulloch v. Maryland, among other things. In that case, the Supreme Court decided that the states were powerless to intrude upon actions of the federal government. The original design of the American republic was such that the states and the federal government would hold concurrent sovereignty. That is to say that the state governments would deal with one set of circumstances, and the federal government would deal with another. With this case, though, the set of issues largely seen as within the purview of the federal government began to grow exponentially.
This trend continued throughout the 19th century, and with the Civil War, American federalism was redefined wholly. This occurred, finally, with the ratification of the post-Civil War Amendments, the 13th, 14th, and 15th Amendments to the United States Constitution. These three Amendments forever defined the relationship between the states and the federal government, and this relationship is one of general subservience on the part of the states.
As the federal government grew more powerful relative to the states, there were shifts within the delicate balance struck by the Constitution at the federal level as well. Publius wrote in The Federalist that Congress should be feared, because in a representative republic it would always be the legislative branch which wielded the greatest power by the simple nature of things. The people, after all, govern in their own name through their elected legislators. Special considerations were thus made regarding the legislative branch. Publius said that the people should exhaust all of the jealousies guarding against this branch; the Framers put their money where their mouths were, so to speak, by hindering Congress the most through the system of checks and balances that they created.
Throughout its history Congress has been able to extend its powers on occasion, but this has not happened with any degree of regularity. Nor has it happened to an overwhelming degree. Congress made its greatest strides in this respect during the FDR years, when it took an expansive view of the Commerce Clause. This expansive view was ultimately enabled by the Supreme Court. Still, the gains made by Congress in this respect were largely the result of President Roosevelt’s popularity in the wake of the Great Depression and World War II.
This calls into question the delicate constitutional balance from the perspective of the presidency. It is quite clear that the presidency has grown in power from relatively humble beginnings. Indeed, most Americans cannot name three Presidents from the 19th century. There is good reason for this. This was a period marked by general congressional dominance. By the time FDR entered the scene in the 20th century, though, things had changed.
External circumstances were such that the nation began to look to a singular figure to address its problems. Communications and travel technology had conspired to make this possible, and external events had conspired perhaps to render this necessary.
From FDR to the present day, we have witnessed a remarkable rise in the power of the presidency. This rise has been almost entirely at the expense of the Congress.
This brings us to a rather advanced observation. If the power of the federal government has increased significantly, and the power of the President has increased only relative to that of the Congress, then there is still a good deal of power which remains unaccounted for.
The only conclusion that one can draw is that the power of the Supreme Court has grown exponentially over the years.
This conclusion is hard to deny. Beginning with Marbury v. Madison, the Court as been able to define its own sphere of authority in a way that the other branches have not. John Marshall in that case asserted the power and authority of the Court to decide all constitutional concerns, and neither of the other two branches saw fit to stand in his way. From that day forward, the Supreme Court of the United States has had the right of final determination on all constitutional concerns in the United States.
It is ultimately this right which renders the Court a force to be reckoned with in the American constitutional regime. In Federalist 78 Publius held that the Supreme Court is not the most powerful branch of the federal government simply because it holds this right, but most of us would beg to differ. We are all intuitively aware that the right of final determination, in some very real sense, implies superiority.
And so it has been for the Supreme Court. There has been nary a big issue in American life which has not found its way to the Supreme Court, and this pattern shows no sign of running its course any time soon. From slavery to citizenship to civil rights to abortion to, of all things, a presidential election, and gay marriage the Court has shown itself to be a force in American political life.
To say this, though, is to miss the bigger picture in some meaningful respects. We do not live in a nation governed by its judiciary, after all, much though some might complain about precisely that from time to time. Indeed, what we have is a nation governed by its judiciary on occasion.
When the Court acts, it acts with impunity to be sure. The simple fact of the matter is, though, that the Court does not act with tremendous regularity. In America, most of the time, political questions are decided by the political branches. The President and Congress do most of the heavy day-to-day lifting. This is, in the end, as it should be, as these are the branches of government which represent the people most closely. Each has its own sphere of authority, so the scheme of institutional government given to us by the Framers must be working on some level. They also often make each others’ lives difficult, so the system of checks and balances and partial agency must be working pretty well too.
Along the way, the media and the bureaucracy became meaningful players in national politics, and rights have been steadily expanded to include the whole of the human family in deep and meaningful ways.
In the end, the system we have is not the system that we were given in 1787, but it is pretty close. While it may differ in some key details, the underlying theory remains, and it is a system which has both stood the test of time and evolved as needed.