The Incredible Genius of “Auxiliary Precautions”

Posted by Marc Hodak on July 1, 2013 under Governance, History | Read the First Comment

As we celebrate the birth of our country this week, I think it’s worth reflecting on the United States as history’s most daring experiment in governance.

Most of us were taught the Constitution in middle or high school as a series of clauses defining the various workings of our federal government. Some concepts such as “checks and balances” managed to penetrate our pubescent fog because the idea of constraints on authority is innately appealing to young people. But few of us were left with a sense of how bold an innovation our Constitution was at the time of its adoption, or how fragile was the republic that it created. Understanding those things greatly enhances one’s appreciation of the American civilization that would emerge from that experiment.

Certain governance concepts like democratic elections, checks and balances, and federalism had been tried in various forms before the birth of this country, including in the colonies that preceded it. But before 1791, no nation vested sovereignty solely in “We the People” with the presumption that the powers of government were derived from the consent of the governed. No rulers had so completely surrendered, via elections for both the legislature and chief executive, ultimate say in who would govern them. No nation had written their Constitution in the plainest language possible, bestowing on the people a powerful, accessible weapon with which to defend their rights.

Our Constitution’s version of “checks and balances” rested on two innovative distinctions regarding the distribution of power. The first distinguished legislative, executive, and judicial authority, ensuring that each branch of government was to some extent dependent on the others for the exercise of power. The second distinguished federal and state authority, reserving most police power to the latter, and making the Senate directly accountable to state legislatures so they could defend their prerogatives, and enabling the states to engage in jurisdictional competition (within the constraint of each being a “Republican Form of Government”).

The most radical innovation, by far, was how the Constitution redefined the relationship between the government and its citizens. For all of history before 1791, a national government was presumed to have unlimited power to enact any laws it wished, except those that interfered with historically sacred individual rights. The American government, in contrast, was to be one of limited, enumerated powers, with all other powers and rights reserved for the states and the people.

Some of these innovations have lasted. We have gotten so used to seeing peaceful transitions of power at every election that we no longer consider it special. Competitive elections and the continued separation of powers keep our politicians honest, to the extent that is possible. But some of the innovations didn’t last.  The U.S. government has largely succeeded in eroding federalism and other limits on its power, and the locus of federal power has shifted decisively toward the President.  These changes could not have occurred without acquiescence of a majority of its citizens, so to some extent we have the government that we want, but it is no longer the balanced machinery that the Founding Fathers attempted to build.

On the whole, though, our Constitution has fulfilled the promise of its famous Preamble more than anyone alive at its drafting had a right to expect. It would become a model for other nations, many of which adopted our key governance mechanisms to their own lasting benefit. They and we owe a huge debt of gratitude to the Constitutional Convention of 1787, which consisted of men amazing for their brilliance—Jefferson referred to them as “an assembly of demi-gods”—and for their humility, believing more in mechanisms than in men, including themselves. As one of those ‘demigods’ wrote:

“If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”

Indeed it has.