Earlier in the day, in response to one of my colleagues’ comment that there was no “tradition” of democracy in either Iraq or Afghanistan, I asked pointedly, “What precisely was the German democratic tradition before 1945? Would that be the ill-fated experiment with the Kaiser? Bismarck? Hitler’s election?” Germany had experienced the Enlightenment, but, obviously, democratic values didn’t exactly take root. To be fair, my response had been provoked by a not too thinly veiled suggestion that Americans were naïve about the prospects for the spread of democracy. I’d rather be naïve than cynical, I had thought to myself.
That evening on the canal, I tried to soften what I had said, explaining that American democracy had taken a long time to mature. “The American Constitution was born of a compromise between slaveholding and non-slaveholding states that counted my ancestors as three-fifths of a man,” I explained. “My father couldn’t register to vote in Birmingham in 1952. And now Colin Powell is secretary of state and I am national security adviser. People can learn to overcome prejudices and govern themselves in democratic institutions.” My colleagues seemed a bit taken aback by the personal nature of my policy comment. Perhaps they didn’t think my race gave me a different perspective on democracy’s challenges—and its opportunities.
Returning to my hotel, I felt so American—with a kind of optimism about the rightness of democracy for everyone, everywhere, at all times. And I realized that much of that conviction proceeded from my own understanding of and experience with American institutions.
“We Hold These Truths to Be Self-Evident”
Not long before my term as secretary of state ended, I accepted a long-standing invitation from the late Allen Weinstein of the National Archives for a visit and tour. I wanted first to see the Emancipation Proclamation, which freed my ancestors—or, more correctly, some of my ancestors. Like most black Americans, they were both slaves and slave owners. My great-great-grandmother Zina on my mother’s side bore five children by different slave owners. She somehow managed to raise them all and keep them together as a family. My great-grandmother on my father’s side, Julia Head, carried the name of the slave owner and was so favored by him that he taught her to read. Her precise relationship to the Head family remains something of a mystery, but you could look at her and see that her bloodlines, like mine, clearly bore slavery’s mark: My DNA is 50 percent African and 40 percent European, and there is a mysterious 10 percent that is apparently Asian.
Reading the Proclamation, I could hear the footsteps of Rices, my father’s ancestors, and Rays, my mother’s. I marveled at their perseverance in the shackles of this most brutal of institutions. I said a little prayer of thanks to them, and moved on to the Constitution, and then all manner of treaties and executive agreements, signed by my predecessors as secretary of state. Preparing to leave, I realized that I had not seen the Declaration of Independence.
How long has it been since I read it? Have I ever read it in full—beginning to end? I didn’t verbalize either question, perhaps a little embarrassed that the answer to the last question was probably yes, as a kid at Brunetta C. Hill Elementary School, but, just as plausibly, never.
So I stopped to read the Declaration in its entirety and contemplate what it says about the moment when people decide that they’ve had enough of tyranny and oppression. After the soaring and familiar rhetoric that enshrines the principles of equality for all (“We hold these truths to be self-evident, that all men are created equal”), the document recounts multiple grievances against the British crown and King George III himself. “He has plundered our seas, ravaged our Coasts, burnt our towns, and destroyed the lives of our people,” it says. “He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation and tyranny, already begun with circumstances of Cruelty & perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.” This fist-shaking litany is a reminder that the moment when people seize power is not the most propitious for rational discourse about how to secure newly won rights. A declaration throwing off the old order is most assuredly not the establishment of the new.
The Anglo-Americans were an ethnically homogeneous lot who left England and, having occupied the “New World” for more than a century, came to think of themselves as a people distinct from the British crown. The constant interference in their affairs had united a sizable portion of them in disgust and despair and provoked a strong impulse to separate.
“When in the Course of human events,” the Declaration begins, “it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.”
America was a hardscrabble place where opportunity abounded, but only for those who would work for it, and so it attracted that kind of people. The old social classes and noble orders did not follow them to the New World because the rich and powerful of Europe were comfortable remaining where they were. Wide-open spaces and the possibility of acquiring land—at the expense of native populations—further encouraged social mobility. The country thus developed with a strong tradition of property rights. And without an aristocratic order to overthrow, America was born in as near to a state of tabula rasa as one can imagine.
Given the complexities of today’s highly interconnected world, America’s birth did indeed take place in simpler times. News traveled up and down the Atlantic coast at the pace of weeks, not hours. People and goods moved at the pace of months, not days. Colonial times were simpler, to be sure, but they were not wholly simple, and success in the American experiment was never preordained. Even with their manifold advantages, the Americans stumbled repeatedly along the path to a stable democracy. It is a point worth remembering as people in less favorable circumstances struggle too.
As we know, the revolutionaries came close to losing their war for independence. George Washington’s ragtag forces were challenged not just by superior British military prowess, but also by weak institutions that almost failed to provide for the soldiers’ needs. Rhode Island refused to pay its share of the costs for the army; the Continental Congress constantly interfered in matters of military strategy and tactics (leading Washington’s aide-de-camp, Alexander Hamilton, to lose confidence in the structure of the government under the Articles of Confederation); and in matters of diplomacy to support the war effort, numerous states cut their own deals with European powers. Indeed, the Articles of Confederation had created no executive at all. The system was just too weak to protect the interests of the new republic. The Founders learned from experience that the young country needed a central authority that worked.
Yet, born as the nation was out of a rejection of tyranny, they were suspicious too of a government that was too powerful. So the question was one of how to create institutions strong enough to protect the people’s newly won rights, but not so strong as to threaten them. This essential balance lies at the heart of the rough-and-tumble story of the birth of America’s Constitution. And it remains today the most important challenge in establishing a new order on the ruins of the old in countries across the world.
The narrative of those hot days in Philadelphia—hot both in temperature and in the intensity of debate—that gave rise to the American Constitution has been well chronicled elsewhere.1 Suffice it to say that the great histories of those efforts show clearly that it was extremely hard to strike the balance that the Framers sought. And what they achieved is a remarkable compromise between competing visions and interests. The writing and ratification of the Constitution was an intensely political process, not a divine bolt from the blue that produced perfect institutions. As James Madison put it in Federalist No. 40, “The choice must always be made, if not one of the lesser evil, at least of the GREATER, not
the PERFECT good.” And in the last of the Federalist Papers, he said, “I never expect to see a perfect work from imperfect man.” This rings true more than 220 years later when we are judging the efforts of those who are trying to establish a new order.
In the pages that follow, we discuss five key aspects of the Founders’ institutional design. I have chosen these particular elements because they appear over and over in stories of democratic transitions of the past and in those that are still unfolding across the world.
First, the Founders tackled the challenge of creating institutional balance—between the states and the center through federalism—and among different parts of the federal government itself. Second, they were determined to limit the role of the armed forces—to maintain control so that they would protect the country but not threaten the political order. They understood that the state had to have a monopoly on the use of force. Third, these men were wary of a marriage between politics, religion, and the power of the state, and they sought to separate them. Fourth, they left space for the private sector and the emergence of civil society. These would be areas where government’s role would be limited and individual initiative would flourish. Finally, they bequeathed a spirit of constitutionalism to their descendants. That has allowed generations of Americans to seek their rights through appeal to its principles. It has been a novel way to deal with the vexing problem of minority rights—even for those whose ancestors came to the country as slaves.
Constructing the Framework
The United States was fortunate to have Founders who both intellectually and emotionally understood the critical importance of institutions. It was, after all, the failure or absence of institutions that led them to rebel in the first place. British subjects had rights on paper and according to tradition, but those rights were being violated by the unchecked powers of other political actors—namely the King. The only way to make those rights meaningful, the Founders believed, was to build an institutional framework to protect them. They knew that if the nation were to be stable, individual rights had to be exercised according to rules that all people could understand and trust.
While tyrants were capricious with nothing to restrain them, democratic governments relied upon and were limited by the will of the people. But the people’s wishes wouldn’t be revealed every day, in every circumstance. Indeed, the Founders were concerned that the will of the people could easily become the preferences of the mob. Thus democratic institutions became a way not only to limit the government but to channel popular passions and interests. Citizens had to come to respect the institutions that would represent and protect their rights. They would be free to associate with others as they wished and there would be a watchful press that could not be abridged, censored, or otherwise checked by the government. The “Fourth Estate,” a free press, would be the eyes and ears of the people, holding their leaders accountable.2
The debates were intense about every aspect of institutional design. The question of how to deal with executive power exposed splits among the Founders. Alexander Hamilton and James Wilson of Pennsylvania were advocates of strength. As Hamilton would say, “A feeble Executive implies a feeble execution of the government. A feeble execution is but another phrase for a bad execution; and a government ill executed, whatever it may be in theory, must be, in practice, a bad government.”
Others worried that a strong presidency could evolve too easily into the very system they had fought to replace. As Patrick Henry warned supporters of the Constitution, “Your President may easily become King.”
The delegates found a way to more or less satisfy both sides—settling on divided government. A scheme of checks and balances grants powers to two legislative houses and in turn three coequal branches. In its first incarnation, Hamilton notwithstanding, the balance clearly favored Congress. The legislative branch is commissioned in Article I, and the executive branch in Article II. And as my colleague at Stanford, American historian David Kennedy, has noted, there are fifty-one paragraphs addressing the role of the Congress and thirteen concerning the presidency—eight of which lay out mechanisms for election, and four of which detail presidential powers. By the way, one provides for impeachment.3
The debate about the executive was in some ways a proxy for the larger issue of the role of central authority in the new country. The Founders may have been chastened by their experiences with the Articles of Confederation, but they were not of the same mind about what to do.
Through a series of compromises they came to a conclusion: The United States would rely on a system of “enumerated powers.” The new authorities that would be given to the central government would be explicitly spelled out in writing (they would be “enumerated”), and all powers not mentioned would be reserved for the states.
Still, federalism was not just a matter of constraining central authority. The Founders and many after them believed that government closer to the people was both more accountable and more effective. Federalism was a practical way to govern over a diverse and massive land.
The Founders established the capital of the new Union in the donated swampland between Maryland and Virginia in 1790, and many returned to their statehouses, thought to be of far greater importance. Early on the federal government was not intended to do very much.
Over time, buffeted by the requirements of continental conquest and defense, a Great Depression, the civil rights struggle, and ultimately the demands of modern governance, the role of the federal government would grow. In particular, the expectations of the president would multiply, and today we are closer to the strong executive that Hamilton favored. Nonetheless, the presidency is still encased in a web of institutional constraints—two houses of Congress made up of 535 people; and an independent judiciary comprising 108 federal courts, including the Supreme Court. And there are 50 governors and state legislatures with strong views about how their states should be run. The proper balance between central authority and the states is as hot a topic today as it was in 1787. Everything from voting requirements to K–12 educational standards to the adoption of environmental policies sooner or later becomes a test of where the writ of the center stops and that of the states begins.
“No Redcoats Here”
The Founders’ concerns about balance reached even into the realm of military power. The proper use of the military has been a recurring theme throughout our history.
I will never forget President Bush’s exasperation one day in a Situation Room meeting during the Katrina disaster, as survivors were pleading for help. “What in the world is posse comitatus?” he asked. He was frustrated with the constitutional lawyers around the table who were invoking this phrase when telling him why he could not send the American military into the streets to deal with the lawlessness of post-Katrina New Orleans.4 Somebody needed to bring order to the situation—and assistance to the victims—and the military surely would have been capable. But there were other considerations—institutional considerations.
The Posse Comitatus Act of 1878 was passed as part of the compromise that withdrew American troops from the South and ended the period of Reconstruction. The meaning of the phrase is essentially “local law enforcement,” and the 1878 act prevents the president from using federal troops “as a posse comitatus or otherwise to execute the laws” within the United States.
Militaries are necessary for the defense of the republic but are potentially a threat to its democratic governance—this is the paradox. A standing army could be used by the state to undermine the liberty of its citizens. In modern literature on civil-military relations, students of developing countries have frequently asked the question “Why does the military intervene?” The more relevant question is “Why doesn’t the military intervene more often?”5 Confronted with the failure of political institutions and ensuing circumstances, militaries—which are by definition armed and organized—are certainly in a position to take matters into their own hands.
Some of the most robust debates at America
’s founding emerged around this issue. Thomas Jefferson wanted simply to arm citizens in response to threats. The “Minute Man,” one day a farmer and the next a fierce defender of the nation, was his ideal. He saw the British redcoats, professional and commanded by an autocrat, as the antithesis of democratic values. Washington, a military leader himself, recognized that standing armies could be “dangerous to a state.” Another Founding Father from Virginia, Richard Henry Lee, said that standing armies “constantly terminated in the destruction of liberty.” It’s hardly surprising that men so preoccupied with the dangers of centralized power would find the idea of an army to protect that power absolutely terrifying. The Shays’ Rebellion of 1786, led by a veteran of the Revolutionary War and drawing heavily on ex-military men, was the closest that America would ever get to a military coup—or at least that is the way it came to be portrayed—and it seared into memories the possibility of armed insurrection.6
On the other hand, Hamilton, Madison, and the Federalists were more concerned that the young republic be able to defend itself. And never one to worry much about contradictions (he was both a slaveholder and the author of the language of equality for all), Jefferson would become both the father of the American Navy and of West Point, the country’s first military academy to train officers in the art of war—all the while glorifying the citizen solider, who was “in all manners a superior choice to defend the nation.”
Interestingly, the Framers did not go to great lengths to address questions of civil-military relations or to ensure civilian control of the government in the Constitution. Rather, they tackled the problem by drawing upon the decentralized structure of the government and the ability of the three branches to check one another. The president would be commander in chief, but he could not declare war, nor could he fund the effort. The power to declare war would be vested with Congress. Other authorities would be divided between the House of Representatives (where all funding bills originate) and the Senate (which must ratify treaties and confirm all ambassadors and cabinet officials).
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