A Constitutional Quandary: Part Two

What measures, then, did our Constitution enact to protect our republic from the negative effects of faction?  First, the Founders created two houses of Congress—one elected according to population of the states and the other with two representatives no matter the state’s size.  Both houses of Congress were given the right to create their own rules and procedures, and only one (The House of Representatives) was given the power to tax.  However, both houses had to pass legislation with the exact same wording before it could be presented to the President to sign into law.  The Founders knew this would be a cumbersome process, but that was the point.  A slow-moving legislative machine was preferred, and it was thought that time and deliberation would weed out the majority (if not all) bad legislation.

Second, the powers of the federal government were divided into three co-equal branches.  Madison’s Federalist No. 51 explained.

But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? 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…

…But it is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates. The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit. It may even be necessary to guard against dangerous encroachments by still further precautions.

The three branches of government were intended to be as separate from each other as possible, and were designed to fight against each other. People who believe today that our government is contentious and that nothing gets accomplished are missing the bigger point—that was the Founder’s intent, and I think they would be proud to watch the mess that is our legislative process. Without this infighting and fierce protection of the rights and powers of each branch, power would become too centralized and tyranny would begin to creep in.

Further, the powers of government were divided between the federal and state (and even further, local) levels: 

There are, moreover, two considerations particularly applicable to the federal system of America, which place that system in a very interesting point of view.

First. In a single republic, all the power surrendered by the people is submitted to the administration of a single government; and the usurpations are guarded against by a division of the government into distinct and separate departments. In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.

Second. It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure. There are but two methods of providing against this evil: the one by creating a will in the community independent of the majority -- that is, of the society itself; the other, by comprehending in the society so many separate descriptions of citizens as will render an unjust combination of a majority of the whole very improbable, if not impracticable. The first method prevails in all governments possessing an hereditary or self-appointed authority. This, at best, is but a precarious security; because a power independent of the society may as well espouse the unjust views of the major, as the rightful interests of the minor party, and may possibly be turned against both parties. The second method will be exemplified in the federal republic of the United States. Whilst all authority in it will be derived from and dependent on the society, the society itself will be broken into so many parts, interests, and classes of citizens, that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority. In a free government the security for civil rights must be the same as that for religious rights.

The full text of Federalist No. 51 can be read here: http://www.constitution.org/fed/federa51.htm

Even after all the hard work of constructing a Constitution that would be accepted by the New England states and the Southern states, the Federalists and the Anti-Federalists, something was still missing. The Bill of Rights were drafted to help secure ratification of the new Constitution, and went into effect in 1791.