7 Lecture Content

National Supremacy

Article VI of the Constitution designates the national supremacy clause, which assigns the Constitution as the supreme law of the land. Such distinction served as a grand departure from the Articles of Confederation wherein state laws, more oft than not, dominated national law. More than this, the national supremacy clause is also credited with crafting national unity among the states. At a time when the states operated as private entities, the national supremacy clause transformed the nation from “the United States are” to “the United States is.”

Federalism

The states came together to create the national government. As such, the principle of federalism divides power between the states and the nation’s central government. In this way, state governments retain a degree of autonomy to make and pass laws on behalf of their constituents while simultaneously being subject to the Constitution’s supremacy clause. Such freedom, though, is not without consequence. The existence of two spheres of influence has, over the years, created a push-pull effect between the states and the national government, often leaving the Supreme Court to determine the constitutional boundaries between the two governments. Early on, it would be the states that dominated in the contest of federalism, with power shifting back and forth between the two units over the years.

However, historical and current trends give way to a rapidly expanding national government at the expense of the states. To this end, many have called for the return of state’s rights in a number of policymaking areas. Environmental policy represents one of these areas. In fact, see the brief footage below where Scott Pruitt, Director of the Environmental Protection Agency, calls for the restoration of state power per the Tenth Amendment of the Constitution. ⁽¹⁾

Republicanism

The definition of a republic has varied over time. Generally speaking, many scholars find meaning in James Madison’s Federalist 10 wherein the term points to a representative democracy; that is, a system of governance where the people, themselves, choose representatives who make political decisions on their behalf ⁽¹⁶⁾ In fact, so important is the concept of republicanism that the Constitution was fashioned to indefinitely embody this principle in Article IV of the Constitution, which states: ⁽¹⁾

“The United States shall guarantee to every state in this union a republican form of government… ” ⁽¹³⁾

Further, a much simpler way to convey the significance of republicanism in American polity is to observe the nation’s Pledge of Allegiance. Founded in 1887 as an oath of allegiance to the United States, the “Pledge” captures, well, the notion of a republican reform of government. Consider the image:

These are words that most, if not all, of us have recited countless times. Notice the phrase: ⁽¹⁾ “ to the Republic for which it stands” ⁽¹⁷⁾ . Now, take note that it does not state “ to the democracy .” Remember, the word “democracy” is not found in any of our nation’s founding documents. Rather, the “Pledge” seeks to emphasize our representative form of government wherein sovereignty is vested in more than one person. Without this piece of the American, political pie, the idea of the “will of the people” crumbles.⁽¹⁾

Separation of Powers

In the interest of liberty, political power in America has been divided between three, distinct, co-equal branches of government (the legislative, the executive, and the judicial branches of government). Additional measures towards freedom can be seen in the inception of American federalism. ⁽¹⁾ Deemed as “double-security,” federalism spreads power across two layers of government, national and state; thus, negating opportunity for the ambitions of one unit to overshadow the rights of the other. ⁽¹⁴⁾

Still, the principle of checks and balances has been much more distinctive among the three branches themselves. Constitutional scholar, Louis Fisher captures this development in his scrutiny of presidential power. ⁽¹⁾ Referencing the French philosopher Montesquieu’s The Spirit of the Laws details Montiesquieu’s take on the separation of power; that is, America’s institutions of government have been arranged so as to never place absolute power in a single individual or body. ⁽¹⁸⁾ In terms of tyranny, and the prevention thereof, the doctrine of separation of powers serves as a fine political tool. However, the consequences of such lie in the fact that “separated” systems are prone to government stalemate. The danger of such gridlock can be viewed through the lenses of public policy, like that of healthcare and/or tax reform. America’s rigid system of checks and balances, makes issues like these difficult to address; thus, imposing on the will of the people. ⁽¹⁾

Checks and Balances

In as much as the three branches are independent of one another, they do, however, rely heavily upon the other to operate. Such interdependency exists at the behest of the Founders. James Madison, in particular, believed that ⁽¹⁾ “the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other.” ⁽¹⁵⁾

The effects of such “checks” can be viewed in all three branches of government but are more oft than not played out in what has become a most contentious relationship between the president and Congress. From partisan gridlock to veto power and presidential impeachments, our system of checks and balances essentially keeps each branch involved in the other’s business, even unto matters that may be perceived as personal in nature. The impeachment of Bill Clinton in 1999 speaks well to the intrusiveness of these checks and balances. ⁽¹⁾

Judicial Review

Alexander Hamilton, in making the case for a federal judiciary, made an interesting observation that, today, would seem highly ironic considering American’s political development. In particular, he remarked: ⁽¹⁾

“The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments. This simple view of the matter suggests several important consequences. It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power.” ⁽¹⁶⁾

Hamilton’s stance on the judiciary would later go on to be curbed with the landmark case Marbury v. Madison 1803 . In this instance, the Supreme Court would execute its power of judicial review; that is, its power to overturn unconstitutional acts of the executive and legislative branches of government. Though not explicitly stated in the Constitution, the application of such secured the Supreme Court’s standing as a co-equal branch of the federal government in spite of Hamilton’s earlier quip.

However, the notion of judicial review is not without complaint. The chief grievance of the Court’s power is its juxtaposition with majority rule. In leaving the Constitution, and the interpretation thereof, in the hands of nine individuals, the concept of majority rule is lost, as the Supreme Court is the final arbiter of the nation’s laws, not the people. Further, because these nine justices are confirmed — not elected — for life, the will of the people has often been dwarfed by unpopular rulings.

Nevertheless, despite such criticism, the notion of judicial review has, in fact, been beneficial for American politics. Minority rights, in particular, have largely been advanced by judicial review. Landmark cases such as Brown v. Board of Education andObergefell v. Hodges legitimize the Court’s power of judicial review. ⁽¹⁾