Chapter 1.1 Reverse Engineering the U.S. Constitution

Here is chapter 1 of my American Government book. For a full explanation of what I am trying to do, read the “What the Hell is an Anti-textbook” post or click on the “About” link above. All comments are welcome. Some folks have superior historical and legal literacy than I do, and I welcome any corrections. I especially welcome critiques and suggestions on how it reads, what concepts I am focusing on and which ones people think I ought to focus on. New chapters will appear as I manage to get them written, which means at times several will appear in quick succession and at other times there will be long delays.

If you prefer to read/download a .pdf version, click here

1.1: Reverse Engineering the U.S. Constitution

“Every political system is an accumulation of habits, customs, prejudices, and principles that have survived a long process of trial and error and of ceaseless response to changing circumstances. If the system works well on the whole, it is a lucky accident—the luckiest, indeed, that can befall a society.

Edward C. Banfield, American Political Scientist Newsweek June 12, 1989.)

Nobel Prize winning Economist Friedrich Hayek once wrote that “institutions are the product of human action, not human design.”i By that he meant that no organizational structure is completely the result of an intentional design process, but is something that grows and evolves over time in response to the ideas and the actions of the people who are part of that organization. This is undoubtedly true of our subject for this book, the America political system. Although a group of men did sit down together in 1789 and intentionally design a brand new political institution from scratch—the Constitution of the United States of America—two centuries of change through constitutional amendment, Supreme Court rulings, extra-constitutional political innovations, and new political interpretations of what the system means and what the federal government should do have resulted in the evolution of a political system that was not the consequence of anyone’s purposeful design, even though it is obviously the consequence of human action.

An analogy may help create an intuitive understanding of Hayek’s point. I like analogies, and I also like basketball, so here’s a basketball analogy. Basketball, was in fact created at one specific moment in time, 1891, by a single person, physical education teacher James Naismith. Today basketball is played worldwide, and the various rules committees of the National Basketball Association, the International Basketball Federation, the National Collegiate Athletic Association, fifty different state high school athletic associations, and many other organizations are constantly adjusting their governing bodies’ rules, so that the institution of basketball continually evolves, year to year and place to place. In addition to rules committees, basketball is shaped by the coaches and players who continually develop new strategies in their search for a competitive advantage. Strategies such as the dunk, the triangle offense, the dribble-drive offense, the pick and roll, the zone defense, and the full court press were not created by rules committees. So, while it originated in a single simple human design, in no way can it be said that anyone—or even one specific group—designed the game of basketball as it exists today.

The same can be said for any institution that’s been around for a while. Journalist Virginia Postrel explains how even a meticulously designed environment like Disneyland actually undergoes regular change and revision, perpetually adjusting to meet a changing world.

Disneyland…once promised [a] carefully controlled future. When the park was new in the late 1950s, many people saw it as a model of perfection not just for amusement parks but for the rest of life…The success of the theme park was predicated on complete mastery of its world, but the future refused to cooperate, and thus it compelled the theme park to make constant adjustmentsii (p. xiii)

In much the same way, while the basic structure of the U.S. political system has remained just as unchanged as the basic structures of basketball has (just throw the ball into the basket to score points) and Disneyland (entertain tourists with rides and shows), there has been a continual stream of changes—a few major, many minor—because the Founders could not perfectly predict and plan for the future.

Throughout this book I will discuss the ways this system has changed, but I want to begin by considering the original design, before it had a chance to evolve. When engineers want to figure out how an object works and what it does, they analyze its different components and the way they fit together. Paleontologists use the same method to figure out how an extinct animal moved, what it ate, and how it may have behaved. This approach is called reverse engineering, and we can use it to analyze the original constitutional structure of the United States in order to understand what the structure was designed to accomplish. Once we figure out that purpose, we are in a better position to ask the following questions.

  • How has the system evolved over time, and what effects have those changes had on the way the system functions?
  • Is the system still functioning as originally intended?
  • If the system does not function as we would like it to function, is that because the system has changed, because our purposes have changed, or both?
  • What kind of changes would we need to make to achieve the purposes we envision for government today?

So before reading on, take some time to consider the following diagram (Figure 1.1) of the American political system, as structured by the Constitution (before any changes were made to it). Although it’s one of the world’s shortest constitutional documents, the structure it creates is complex. Look at the way the different pieces fit together as a paleontologist would look at an assembled skeleton and try to think about what effect some of those “joints” have, how they would have caused the system to “move.” Then consider the bigger picture: what purpose was this complexity meant to serve, and couldn’t they have accomplished the same goal with a much simpler design?

After all, one of the principles of good design is to avoid unnecessary complexity—did the Founders go overboard, or is this in fact precisely the level of complexity a good system should have, and no more?

Keep in mind that we Americans are taught from birth that our system of government is the best on earth, and a model for other nations, so we’re not taught to think critically about the structure of our system. Yet the reality is that although we now have one of the oldest governments on earth, few other countries have actually copied this design very closely. That’s not to say they’re right and the U.S. is wrong—it’s to say that the answer to that question is not as straightforward as blind patriotism would suggest. The crucial beginning point for a fuller understanding of the U.S. political system is to set aside myth, set aside uncritical acceptance, and begin to look at it objectively and scientifically.

Before we try to unpack the complexity of the American system, and consider it in more detail—a process that we will continue throughout the book—let’s consider some simpler alternatives that will help us begin to make some sense of it. Figure 1.2 is the diagram of a perfectly anarchic political system. The word anarchy comes from the Greek an, meaning without, and arkhos, meaning leader, so in this political system there are no leaders, no hierarchy of power, no government. The only political element is the populace, each member of which is equally free, equally authoritative, and equally sovereign over his or her own actions.

This diagram may at first seem meaningless, but what we are doing here is building models. A model is a representation of something that’s real, but without all the details of that real-world thing. Imagine, for example, a model of a race car, or a plane. When we look at it, we say, “that’s a race car,” or “that’s a plane,” but of course it’s not really either of those things, and it usually lacks some absolutely crucial components, such as a 600 horsepower engine or working flight control surfaces. Still, the better the model, the more you can learn about the real-world thing, especially if you compare models of different versions of that real-world thing, like comparing a model of a passenger plane to a model of a military fighter plane. Social scientists—really all scientists—make use of models, and as we will do here, we often begin with a very simplistic, very unrealistic one, just to get the basic concepts in place, then add to it piece by piece. This is a useful approach because the complete model is often too complex to fully understand until you have studied the simpler models first.

The key to understanding the significance of the diagram in Figure 1.2 is to note what is not present. There is no government, no claim by any member of that populace to political power over anyone else; no claim to an authority to make any type of decisions for the rest of the group. Everyone is answerable only to him or herself, in what the political philosopher Thomas Hobbes termed a “state of nature.” If we compare this to the American system, it is immediately obvious that the American system is not anarchic, so we can conclude as a very simple, and rather obvious, beginning point, that the Framers did not want an anarchy. They feared a society without at least some governmental authority because they were well acquainted with political philosopher Thomas Hobbes’ dismal description of the stateless society:

Hereby it is manifest, that during the time men live without a common Power to keep them all in awe, they are in that condition which is called Warre; and such a Warre, as is of every man against every man… In such condition there is…[n]o society; and which is worst of all, continuall feare, and danger of violent death; and the life of man, solitary, poore, nasty, brutish, and short.iii

With that idea in mind, it’s no wonder that the Framers decided to include a government in their design for a political system. As one eminent figure of the founding era, John Jay (who would become the First Chief Justice of the Supreme Court) wrote;

Nothing is more certain than the indispensable necessity of government; and it is equally undeniable that whenever and however it is instituted, the people must cede to it some of their natural rights, in order to vest it with requisite powers.iv

But while they may have seen it as necessary to surrender some of their authority as individuals in order to create a government with some power, the question remains as to just how much power that government should have. Figure 1.3 shows, with just as simple a diagram as Figure 2, the opposite extreme from from anarchy. We will call this system tyranny, from the Greek tyrannos, meaning absolute ruler.

This system is as simple, at least in diagram, as the anarchic system, but is fundamentally different. Instead of the political system having no government, the government is the whole political system. All authority has been shifted to the government, which is absolute and authoritarian, and the populace as an active political element, with authority dispersed to the individuals who make up the populace, has completely been eliminated.

We have already noted that the American system is not anarchic, and just as obviously it is not absolutist either. Both systems are simpler than the American system (in concept, at least, if not necessarily in execution), but the Framers of the Constitution obviously sacrificed simplicity for the sake of achieving a system that is somewhere between anarchy and totalitarianism.

Of course these two models are, mostly, unrealistic. It is doubtful there has ever been a truly stateless society larger than a few dozen individuals, and there have been only a few attempts to create truly absolutist regimes. But we can observe the breaking down of central authority and the resulting violence between factions fighting for power that often results, whether in the English Civil War that Hobbes was responding to, in Somalia in the 1990s, or Afghanistan in the 2000s. And we can also observe what happens in countries whose governments become tyrannical, whether Nazi Germany, the Soviet Union, Cambodia under the Khmer Rouge, or Iraq under Saddam Hussein. While the true ideal types of absolute anarchy or absolute tyranny may be only theoretical, we can treat them as end-points on a continuum (Figure 1.4), and recognize that all real-world political systems fall somewhere in between, but with some more closely approaching one end of the continuum and some more closely approaching the other.

The American political system shown in Figure 1 certainly fits somewhere between the two extremes, but the Framers could have accomplished that goal with a much simpler design. So let’s begin with the simplest system that would accomplish the goal of being neither anarchy nor tyranny. (Figure 1.5) In this design, a single person, whom we’ll call the monarch (from the Greek monos, meaning alone, or one, and arkhos, leader) acts as the government, but does not claim authority over all decisions—authority over some decisions that affect their lives is left to the populace.

Of course while the etymology of monarchy may just mean single ruler, one of the traditional meanings of the word is “absolute ruler,” so you may wonder if a monarchy can really be kept in that limited sphere of authority, or whether it will naturally creep towards filling the whole space, and becoming an absolute tyranny. So let’s tweak our model a little bit more, while still trying to limit the complexity. The simplest, smallest, adjustment we could make would be to allow the populace to elect the monarch. But let’s go one more step beyond that and allow them to elect a parliament (Figure 1.6).

Because we’re keeping this as simple as possible, we’ll keep this a unicameral (single chamber) parliament. We could of course draw a design with just a legislature, but as we’ll see in the next power, actual government requires an executive power, and it has long been understood that government fulfills three tasks, legislation, enforcement, and judging. This idea was most famously expressed by the Baron de Montesquieu, who influenced America’s founders, but it is expressed at least as far back as the Hebrew scriptures, with the Hebrew God being described as judge, lawgiver, and king.1 So we will assume that even the simplest government fulfills all three tasks, but they can be fulfilled by a single body.

There is no country that has a government precisely of this type, but it serves to make the point that we can at least conceptualize a simple design that prevents both anarchy and absolutism. It also allows us to see how we could move step by step to a more complex design. Divide the parliament like an amoeba so that there are two chambers (a bicameral parliament), keep the prime minister in one and allot the judicial authority to the other, then add a mostly powerless monarch (a part of the executive power) who sits outside the parliament and you’ll have something roughly resembling the Westminster system (the British model). Move the judicial power out of the legislative branch and change the monarch to an elected president and it will more closely resemble the French system. The actual British and French systems are more complex than described here, but less complex in design than the American system. And remember, the diagrams are just models.

There are an infinite number of possible designs for government that fall between the extremes of pure anarchy and pure absolutism. The key to understanding how they differ is to recognize that each one divides political authority in different ways. By “political authority” we mean “who has authority to make what decisions.” In the anarchic system, each individual had sole authority to make every decision concerning themselves, and no one had authority to make decisions for anyone else. In the tyrannical system, a single ruler claimed authority to make all decisions for everyone, and no individual had authority to make any decisions, even for themselves (such as where to live, what occupation to have, who to marry, etc.—at various places and times in history, rulers have denied authority over such decisions to the individuals affected by them). We will return to this idea, that government defines who gets to make what decisions, in the next chapter, where we will more carefully define such concepts as politics and government. For the moment, just accept the intuitive concept that the more complex the design of the government, the more complex the division of authority. You may also want to contemplate the possible divisions of authority. How much authority should be left to the individuals and how much given to the government? And how should the government’s authority be divided up? Who in government gets to make which decisions for us? The latter two questions will be particularly relevant when we consider federalism (the division of authority between states/provinces and a central government) and separation of powers (within that central government).

Let’s return now to Figure 1 and look more closely at its complexity.

  1. Notice first that there are actually three distinct political elements: the populace, the state governments, and the federal government. If the only goal was to prevent anarchy, the inclusion of state governments is a wholly unnecessary complication, so this design element presents a puzzle to the reverse engineer. Why did the Framers of the Constitution include this particular feature?
  2. Second, notice that one of those elements—the federal government—is further divided into three sub-elements, and one of those sub-elements—the legislature—is yet further divided into two sub-sub-elements. Why so much subdivision of pieces, which not all political systems do, and why not subdivide those other federal government elements, too?
  3. Third, notice also that the state governments are not wholly separate from the federal government, but are linked to it through the Senate, which they appoint2 and through the executive, which they “provide for selecting,” whatever that means. In fact the states have greater linkage to the federal government than does the populace, which is only connected through the House, which they select. What could the purpose of this be? If a democracy is a government where the populace selects the governing officials, what would we call this type of government?
  4. Fourth, notice that the third part of the federal government, the judicial, is the only one that is not linked to either the people or the states. It is linked only to the other parts of the federal government, with the executive appointing the judicial and the Senate—just a sub-sub-element—having approval authority over that appointment. Why have this sub-element of the federal government be wholly separate from the states and the populace? Why allow the federal government to provide for selecting part of itself? Why insulate it, but only it, from both the populace and those not-really-necessary state governments? Again if democracy consists in the populace selecting government officials, what type of government would this be?
  5. Fifth, notice that the judicial has a linkage back to the other two branches allowing it to constrain their actions. More questions present themselves. How can one group effectively constrain a group that has the authority to choose them? If you could choose the person who has power to constrain you, wouldn’t you choose someone who wouldn’t do so, so that this power would be effectively meaningless?
  6. Finally, notice the multiple linkages between the executive and the legislative. If they’re going to have so much linkage, why separate them at all? What is the goal of having such a partial, but not complete, separation? And if they’re not completely separated, do we really have “separation of powers,” as we’ve all be taught?

This is not, by any means, a complete set of questions that can be asked about this design, but they represent a valuable method of analyzing government (any government). Throughout this book we will focus on answering questions like these as a means of approaching the “big picture” questions presented on page one. In general, though, it should now be apparent that structure matters. This structure is the set of institutions—rules, procedures, policies, and norms—that make up the political system, and the emphasis on them is characteristic of what political scientists call “the institutional approach.” Arguing about issues is fun, but if you want to understand how the American political system was supposed to work, what end that design was supposed to achieve, and how well it is working to achieve that end today, you must approach it institutionally.

In the next chapter we will examine what politics is and consider some fundamental political problems. Following that we will discuss the definition, origin, and behavior of government. Finally, to close out the first section of the book, I will show how the Founders’ experiences before and after the Revolutionary War shaped their concerns about both tyranny and anarchy, leading them to design the complex division of political authority embodied in the Constitution.

Exercising Your Knowledge

  1. Explain the concept of institutions being the product of human action, but not of human design.
  2. What are institutions?
  3. What are anarchy and tyranny, and why would we want to steer a path between the two?
  4. What are the three powers of government?
  5. Was Hobbes right that anarchy has to be a war of every man against every man? Or do you think a peaceful anarchy is possible?
  6. Why do you think complexity in government develops, instead of countries striving to keep their governing structures as simple as possible?

1. Isaiah 33:22.

2. I want to avoid confusion here. Originally the states chose the Senators. They do not do so anymore, which is one of the structural changes in the system that we’ll be discussing.

i. Hayek, F. A. 1967. “The Results of Human Action but not of Human Design,” in Studies in Philosophy, Politics, and Economics. Chicago: University of Chicago Press.

ii. Postrel, Virginia. 1998. The Future and Its Enemies. New York: Touchstone

iii Hobbes, Thomas. 1651/1973. Leviathan. London and Melbourne: J.M. Dent & Sons, Ltd. pp 64-65

iv. Jay, John, 1787. Federalist Paper 2.

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6 responses to “Chapter 1.1 Reverse Engineering the U.S. Constitution

  1. D.A. Ridgely

    A small point, but I think the Postrel quote is conclusory, not explanatory. At the very least the point needs some example(s) of how Disneyland was required to adapt.

  2. Very well put so that it makes it easy for anyone to understand.

    If you’re looking for typos, check out item #6 on the next to last page. I think the word, be, is a typo.

  3. “Although a group of men did sit down together in 1789 and intentionally design a brand new political institution from scratch…”

    A nitpick– it was 1787 that they sat down to design.

    Jim51

  4. “Although a group of men did sit down together in 1789 and intentionally design a brand new political institution from scratch…”

    That’s the contention, but I think it falls far short of the reality – a significant amount of the difference between the Westminster system and the American is down to diverging histories; if you look hard at the text of the Constitution, you’ll find a) an executive dependent to a large extent upon a b) strong legislature with c) an independent judiciary. That’s not too far off from the (Platonic) ideal of the Westminster system; there are certain cosmetic differences, but I would contend that it’s history which has written the changes, not the Constitution. I would also add that I think you do Parliamentary/semi-Presidential systems an injustice by calling them simple.

    Anyway, that aside, some good wonkish polisci stuff there 🙂

  5. Thanks, these are the type of comments I really appreciate. Nitpicks are welcome. 1787 v. 1789 does matter (not just in educating students, but in keeping me from looking like a fool). DAR’s point is very useful–it gets to the heart of making the book clearly explanatory for students. And That Other Mike makes a point I’ve often made, but forgot as I got down in the weeds of writing, where it’s amazingly easy to forget, in the effort of putting words on papers, certain ideas I meant to express.

  6. Right, the Philadelphia convention was 1787. The design wasn’t wholly from scratch, either, but close enough. There were proposals put forth from Virginia (essentially Jefferson’s design, though Jefferson was in Paris), and from New Jersey. But in both cases, the designs relied heavily on experience in making the government work, especially without a king or parliament, during the war. Experience wins out over philosophy (is that the next chapter?).

    I would also say it wasn’t the result of “any one’s intentional design. rather than “anyone’s.” There is intention at each step. Sometimes the intentions are a bit hidden, but most often not. Sometimes the intentions produce unintended consequences — like the 18th Amendment’s spur to organized crime — but somebody fully intended to stop the production and sale of alcoholic beverages.

    Your chart of the “original” Constitution is good — but you have the people electing the Senate, it seems to me (though you distinguish this later on). Not so until the 17th Amendment. The state legislatures elected the Senate (which is how Virginia Gov. Patrick Henry kept James Madison out of the Senate and nearly scuttled the Bill of Rights, and why the debates between Sen. Stephen A. Douglas and former Rep. Abraham Lincoln remain such a wonder — who were they trying to persuade?). I worry about how taxes and federal spending could be integrated into the chart (maybe not well; maybe not worth bothering).

    Finally, I wonder whether you should spend a paragraph or two asking why those particular three branches of government, and whether a different structure with a different number of branches is possible? I understand that the American authors were generally familiar with British, French and Roman history and the origins and evolution of the various forms of government, so they had a lot to pick from; and it’s good to recall that the convention was called because of problems in the Articles of Confederation, but one of the problems generally uncited is the lack of an executive branch; a complete lack of a judicial branch was a clear burden on commerce.

    I’d make the chapter longer. Your brief form is probably better than I’d make it.

    Some good thoughts, and I can see distinct advantages to a book of this design.

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