The Freeman 1972 - The Ludwig von Mises Institute

1972 PRINCIPLES OF THE CONSTITUTION 739ance of the Constitution are dedaredto be the supreme law ofthe land. The states retained mostpolice powers, courts dealing withmost civil and criminal matters,and much that has to do with theprotection of life, liberty, andproperty. The general governmentis charged with protecting thestates from foreign invasion andfrom one another. The line betweenthe powers of the states andthose of the general governmentwas not marked by great detail;it was, no doubt, expected thatthey would contend with one anotherover various jurisdictionsand thus limit one another. Suchcontentions were expected to counter-balancethe extensive use ofpower by any government.To say that federalism was anAmerican invention is not to implythat it sprang from the headof Zeus fully clothed at Philadelphiain that summer. Actually, theFounders were encompassing atradition when they devised thefederal system. There were elementsof federalism in the Britishcolonial system. Each colony hadits own government to deal withlocal matters. The British governmentexercised the type of powersover the colonies that were now tobe vested in the general government.Moreover, the Congress underthe Articles of Confederationhad much of the authority whichwas now vested in the generalgovernment, even if it lacked thepower for the full exercise of it.Most of the innovation was in thewresting of a pattern from an imperialsystem and installing it ina republican setting.2. Republican Form of GovernmentThere are two basic requirementswhich must be met if agovernment is to be styled a republic:(1) it must be popular inorigin, Le., draw its authorityfrom an extensive electorate; and(2) power must be exercised byrepresentatives. It is distinguishedfrom an· hereditary monarchy inthat it is based on popular electionand from democracy in thatpower is wielded by representatives.Those who favored the newConstitution took pains to showthat the government it providedfor was republican in character.James Madison showed that itspowers were derived from the peopleby this explanation:The House of Representatives, likethat of one branch at least of all theState legislatures, is elected immediatelyby the great body of the people.The Senate, like the. Present Congressand the Senate of Maryland,derives its appointment indirectlyfrom the people. [The Senate waschosen by state legislatures until theratification of the 17th Amendment.]The President is indirectly derivedfrom the choice of the people, accord-