Sept. 17 marks Constitution Day. In Philadlephia, 228 years ago, George Washington and his fellow delegates subscribed their names to a copy of the proposed constitution. They hoped the states would call conventions to consider the document and that at least nine would ratify it and summon into existence what they described in the preamble as "a more perfect Union," which would "establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty" to themselves and their "Posterity."
As this language suggests, nearly all of those who had attended the federal convention had high hopes. None, however, were certain that the proposed constitution would suffice. They were, they knew, engaged in an experiment.
It was an open question whether self government and good government were compatible. Republican government — as instanced in classical Greece, in ancient Rome, and in 17th-century England — did not have an unblemished record. It was their contention — and hope — that the instrument of government under consideration constituted a decisive improvement on all prior political models.
It was generally agreed that small republics lacked the resources prerequisite for self-defense. It was also an established principle that a republic could not be sustained on an extended territory. Republicanism had flourished at Rome when it was a small city, but it had repeatedly given rise to civil war once Rome established its dominion over the Mediterranean basin and northern Europe. And Rome eventually succumbed to tyranny.
In an attempt to square the circle — to garner the resources necessary for defense and to retain the conditions necessary for effective self-government — the Framers of the American constitution adopted two principles. The first was federalism. They limited the scope of the central government. It was authorized to deal with foreign affairs, piracy on the high seas, the conduct of war, and the governance of territories. It was to coin money, establish a postal system, issue patents of monopoly and copyrights, handle bankruptcies, and regulate interstate commerce. It had no other powers apart from those "necessary and proper" for addressing these responsibilities.
Everything else was left to the states and localities, which were nearer to the people, more responsive to their needs and desires, and more easily reined in by the people should representatives go astray. There was precedent for federalism — in the Netherlands, for example, and in ancient Lycia.
The second of the two principles, however, was foreign to the history of republicanism. Never before had a republic sported a unitary executive. This lack the Framers regarded as a defect. It had left earlier republics hard put to manage foreign affairs coherently; it had made it difficult for them to respond to the emergencies apt to arise within republics situated on extended territories; and in England, where direct democracy was impossible and geographical extension dictated a resort to the principle of representation, it had occasioned legislative tyranny in the 1640s and 1650s. In consequence, at the national level and eventually in nearly all of the states, the founders opted for a unitary executive, for a bicameral legislature, and for a separation of powers designed to prevent a concentration of authority within the hands of a few.
For this to work effectively, James Madison believed, it was essential that the federal government not encroach on the prerogatives of the states and localities. In 1792, fearing that the program advanced by Treasury Secretary Alexander Hamilton was aimed at "a consolidation of the States into one government," he issued a warning.
First, he argued, the "incompetency of one Legislature to regulate all the various objects belonging to the local governments, would evidently force a transfer of many of" those objects "to the executive department." Then, he contended that, if the state and local governments were made subject to the federal government, the sheer size of the country "would prevent that control" on the federal Congress, "which is essential to a faithful discharge of its trust, \[since\] neither the voice nor the sense of 10 or 20 millions of people, spread through so many latitudes as are comprehended within the United States, could ever be combined or called into effect, if deprived of those local organs, through which both can now be conveyed."
In such circumstances, Madison warned, "the impossibility of acting together, might be succeeded by the inefficacy of partial expressions of the public mind, and this at length, by a universal silence and insensibility, leaving the whole government to that self-directed course, which, it must be owned, is the natural propensity of every government."
As a description of Hamilton's aims, Madison's admonition is arguably in error. But it does with great accuracy describe the consolidation of power in Washington that took place in the course of the last century — as Woodrow Wilson's New Freedom was followed by Franklin Delano Roosevelt's New Deal, Lyndon Johnson's Great Society, and President Obama's New Foundation — and as the federal government wrested their prerogatives from the states; as Congress ceded greater and greater authority to executive agencies empowered to issue regulations that have the force of law; and as elections came to matter less and less.
Whether we can afford to leave our government to a "self-directed course" in which the president of the United States and his minions act unilaterally is an issue worthy of consideration — especially on Constitution Day.