There are a number of civics courses out there that list or summarize the basic building blocks of American government: how many representatives do we have, how long is the President’s term, and so on. But if you really want to understand how America’s government works and what makes it unique, you need to understand what lies beneath those building blocks and where they came from.

Justice Sandra Day O’Connor, the founder and namesake of the O’Connor Institute, has put it this way:

I’ve seen first-hand how vital it is for all citizens to understand our Constitution and unique system of government, and participate actively in their communities. It is through this shared understanding of who we are that we can follow the approaches that have served us best over time — working collaboratively together in communities and in government to solve problems, putting country and the common good above party and self-interest, and holding our key governmental institutions accountable.

Having a thorough knowledge of the foundations of our democracy provides people with the context and the tools to take effective action as citizens. Scholars and educational organizations over the years have compiled various short-lists of the principles that are critical to the functioning of the American system. This guide will address four of these foundational principles:

  1. Representative democracy
  2. Federalism
  3. Individual rights
  4. Separation of powers

Each of these is codified in, and protected by, the U.S. Constitution. Let’s look at them one at a time.

1. Representative democracy

Pericles speaking to the Athenian Ecclesia (assembly). This is not representative democracy.

The term “democracy” originates from the Ancient Greek meaning “rule of the people.” This contrasts with monarchy or dictatorship (rule of a single person) and aristocracy (rule of an elite). In Classical Athens, democracy meant that the people as a whole—in practice meaning all free, adult male citizens—would gather regularly to determine and vote on all laws for the country. Voting was by majority rule, and the assembly had essentially unlimited power. Citizens would also gather to vote on the outcome of criminal trials, as most famously in the Trial of Socrates. Poor judgment by the assembled citizens in cases like this led to Athenian democracy being heavily criticized in its own time by intellectuals such as Thucydides, Plato, and Aristotle.

Athenian democracy lasted 186 years, and its underlying philosophy has come to be known as “direct democracy.” This system, where the people vote “directly” on all of the laws, was never revived again at any major scale, though it does exist in some parts of Switzerland today. In its place arose representative democracy.

In a representative democracy, citizens elect “representatives” who, in turn, run the government and vote on the laws governing society. Representative democracy has many advantages over direct democracy, including:

  1. Part-time or full-time elected representatives can look into the pros and cons of each proposed law in detail in a way that citizens in a direct democracy usually do not have the time to do. Representatives “refine and enlarge the public views,” as James Madison wrote in The Federalist No. 10.
  2. A division of labor is created where lawmakers can work while the rest of the citizenry can continue to go about their regular business. In direct democracy, by contrast, people would regularly have to stop doing their jobs to come to the forum and vote.
  3. Citizens who wish to run for office and enter government can prepare ahead of time, seeking out additional education to study and understand the complexities of lawmaking.
  4. Government is simpler, nimbler, and faster thanks to the need to coordinate a vastly smaller number of lawmakers (usually several hundred compared to a 6,000-person quorum requirement at certain points in the Athenian system).
  5. In the forum of a direct democracy, a persuasive orator could convince large numbers of people to vote one way or another based on little evidence, leading to a mob mentality.  As James Madison put it in The Federalist No. 55, “Had every Athenian citizen been a Socrates; every Athenian assembly would still have been a mob.” In Madison’s view, elected representatives are more likely to “best discern the true interest of their country,” less likely to fall prey to narrow self-interest, and will therefore make choices “more consonant to the public good” than “the people themselves, convened for the purpose.” 

Representative democracy first arose in the Roman Republic (509-29 BC), where citizens could vote on the holders of offices at all levels of government. The American Founding Fathers, including James Madison and Alexander Hamilton, studied the Roman Republic in great detail and took several terms from that era, including the Senate and the Capitol.

Representatives today can be elected at all levels from the local to the national: school board members, judges, mayors, state legislators, governors, and members of Congress or (in other countries) Parliament.

Drawbacks of representative democracy include the fact that if you, a citizen, want to change, propose, or eliminate a law, you need to convince your representative to vote your way rather than having the power to vote on it yourself. This is complicated by the fact that elected officials inevitably represent a group of people that do not share the same opinions. (Each member of the U.S. House of Representatives today represents more than 700,000 people.) That can make choosing the proper representative for a given group—through campaigns and elections, which only occur every two years at the most—messy and contentious. However, the advantages above far outweigh these disadvantages, which is why all democracies today are some form of representative democracy.

A democracy formally limited by a constitution is called a constitutional democracy or constitutional republic. Constitutions contain guardrails that restrict the activities and lawmaking power of government to within certain parameters and cannot be changed with a simple majority vote. In other words, unlike the “unwritten” British constitution, which can be changed by Parliament, the U.S. Constitution takes precedence over ordinary law and places limits on Congress. Laws that conflict with the Constitution can be declared by the courts to be “unconstitutional” and thrown out. Amendments to the Constitution require a two-thirds vote of both the House of Representatives and the Senate as well as ratification by three-fourths of the states.

At the time of the Founding, the term “democracy” referred only to direct democracy. For James Madison, the “father of the Constitution,” the main difference between such a “democracy” and a republic was that republics included elected representatives. Madison argued that having elected representatives would allow the government to extend over a wider area than was possible in a direct democracy. In addition, electing representatives from many large districts was viewed as a way of preventing people across the country from forming into a small number of special interests that would dominate national politics.

The Founding Fathers were extremely wary of direct democracy, which, left unchecked, can lead to a “tyranny of the majority” where simple majority votes can crush minorities. Because of this, they designed the American system of government with mechanisms that provide some distance between the general public and the way people are chosen to lead the government. For example, the Constitution provides for election of the President not directly by the people, but by a separate group called the Electoral College. (Each state has a number of votes in the Electoral College equal to their number of Representatives plus two for their Senators.) And before the passage of the 17th Amendment to the Constitution in 1913, U.S. Senators were elected by state legislatures rather than by popular vote.

In addition, the Constitutional framework helps cool temporary passions and refine and filter the will of the people. Representatives, Senators, and Presidents are all elected for different durations and by a different group of voters. Representatives are elected directly by the people in local districts for two-year terms. Senators are elected for six years and Presidents for four years. Major, nationwide changes in law therefore require a robust majority of the people, distributed across the country and maintained for a number of years.

The Constitutional Convention, 1787

The idea of the states having power and being able to make decisions separately from the federal government leads us to the second major piece of the U.S. governmental structure.

2. Federalism

“Federalism” refers to the concept that governmental power is shared between the governments of states on one hand and the federal (national) government on the other, with each having certain areas of jurisdiction into which the other cannot intrude. The United States was the first country to develop and use this system. Today, roughly 25 countries use some version of federalism, covering 40 percent of the world’s population.

At the time the Constitution was being drafted, there was great concern over creating a federal government with too much power. The American revolutionaries had seen the power of a too-strong central government first-hand by being subjects of the British Empire. So the system of federalism was developed in order to preserve the power of the states to control most aspects of daily life. Additionally, to ensure that large states would not dominate smaller states at the federal level, the U.S. Senate was designed to have exactly two representatives from every state, regardless of population. (The other house of Congress, the House of Representatives, has proportional representation for each state.)

The Constitution gives the federal government the specific authority to do only 17 things (called the “enumerated powers“), plus the ability to “make all laws which shall be necessary and proper” to implement those 17 things.

The Enumerated Powers

  1. To tax and spend to pay U.S. debts and provide for the common defense and general welfare
  2. To borrow money
  3. To regulate foreign and interstate commerce
  4. To establish nationwide laws on naturalization (who can become a citizen) and bankruptcy 
  5. To coin money (note: only coins are specifically mentioned, not paper money)
  6. To punish counterfeiters 
  7. To establish post offices and “post roads”
  8. To issue patents
  9. To create additional courts below the Supreme Court
  1. To define and punish crimes committed at sea
  2. To declare war
  3. To raise and maintain an army
  4. To raise and maintain a navy
  5. To set rules and regulations for the army and navy
  6. To call upon state militias (today each state’s National Guard) to enforce federal law, “suppress insurrections and repel invasions”
  7. To “provide for organizing, arming, and disciplining the Militia” (again, meaning each state’s National Guard)
  8. To govern the District of Columbia (D.C.)

The 9th and 10th Amendments to the Constitution clarify that any powers not explicitly granted to the federal government in the Constitution are to be reserved “to the States respectively, or to the people.”

One of the intended outcomes of federalism was for the states to be “laboratories of democracy” (though this precise term came much later, in the 20th century). States are able to pass laws and try various public policies at a smaller scale than the national level, based on the needs of their own communities. States can have very different laws on everything from levels of taxation to criminal justice, healthcare, education, and environmental regulation. Laws that are successful at a state level can be replicated by other states or used as the basis for national legislation.

States’ Rights

During the country’s early years, Alexander Hamilton and the Federalist Party tended to prefer a stronger central government, while Thomas Jefferson and the Democratic-Republican Party preferred stronger state governments that could stand up to the central government and keep it within its bounds. Over time, as the country expanded and new territories were added to the United States, the tension between state versus federal power became inextricably intertwined with the question of the expansion of slavery.

In the run-up to the Civil War, Southern states claimed it was their right to continue and expand the institution of slavery despite growing opposition from the rest of the country. They also claimed that states had a right to ignore federal law (a process known as “nullification”) and the right to secede from the United States and form their own country if they no longer wanted to be subject to the federal government. In 1861, following the election of Abraham Lincoln on an anti-slavery platform, South Carolina made good on this threat and did secede, setting off the Civil War. Ten other Southern states seceded as well, establishing the Confederate States of America (usually shortened to the “Confederacy”). The federal government and the remaining states that had not seceded, abbreviated as the “Union,” prevailed in the war after 600,000 casualties (the deadliest in American history), leading to the abolition of slavery through the 13th Amendment to the Constitution and the reuniting of the country.

Even after the Civil War and the defeat of the Confederacy, however, “states’ rights” tended to win out in disputes with the federal government. The 14th Amendment to the Constitution, passed in 1868, held that “No State shall…deny to any person within its jurisdiction the equal protection of the laws.” (This is known as the “Equal Protection Clause.”) The Civil Rights Act of 1875 built on this, prohibiting discrimination against African-Americans in public transportation and “public accommodations” like schools, hotels, and businesses. However, the Supreme Court ruled that law unconstitutional in 1883, saying the federal government’s power in the 14th Amendment was limited to preventing racial discrimination by state governments themselves, not the activities of private individuals or corporations within the states.

This opened the door to the imposition of what came to be known as “Jim Crow laws” by the Southern states. These laws legalized segregation and prevented African-Americans from voting, living in certain places, patronizing certain businesses, and attending certain schools. The 1896 Supreme Court case Plessy v. Ferguson ruled that laws requiring segregation were legal as long as the conditions for white and non-white people were “separate but equal.”

For 40 years following Plessy v. Ferguson, the Supreme Court continued to strike down most efforts by Congress to expand federal programs and regulation, preventing intervention on issues like state-sanctioned segregation as well as minimum wage laws, child labor laws, and regulation of monopolies. This represented a forced continuation of the limited role the federal government had played since the founding of the country. Throughout this period, the average American in peacetime had very little direct interaction with the federal government at all, other than at the post office. Even state governments remained relatively small, constrained by Supreme Court decisions that gave precedence to agreements between private individuals over government regulation.

That situation began to change with the Progressive Era under President Theodore Roosevelt (1901-1909), when government inspections and rules for workplace and food safety were first initiated. Then, during the Great Depression in the 1930s, President Franklin Roosevelt dramatically expanded the reach of the federal government through a suite of programs and regulations called the New Deal. Most Americans will recognize the New Deal programs that still exist today, including “the Social Security retirement system, unemployment insurance, government guarantees of bank deposits and home mortgages…[and] low-rent public housing.” The New Deal also created new agencies like the Works Progress Administration, which became the largest employer in the entire country during the nation’s severe economic downturn.

The Supreme Court struck down some of the early New Deal programs and laws as unconstitutional, saying (as it had in prior cases like the 1875 Civil Rights Act) that Congress and the federal government had exceeded their authority. This time, as its justification the Court relied upon a narrow view of Congress’s power to regulate commerce. However, starting in 1937, the Supreme Court changed course on its understanding of Congressional power over interstate commerce, upholding the validity of the New Deal and an expanded role for the federal government. This set the stage for further expansion of federal programs in later years.

Thirty years later, in the 1960s, President Lyndon Johnson would use this authority to spearhead the creation of Medicare, Medicaid, food stamps, and other federal anti-poverty programs known as the Great Society. Johnson’s successor, Richard Nixon, established additional federal agencies such as the Environmental Protection Agency (EPA) and the Occupational Safety and Health Administration (OSHA), while Nixon’s successor Jimmy Carter established the U.S. Department of Education.

The end result of the roughly 70 years of federal expansion from the Progressive Era through the Carter presidency was a dramatically altered relationship between the states and Washington, D.C. compared to the previous historical norm. Yet this slow, gradual transition had followed the demands of changing public opinion and the needs of each historical moment.

Even today, debate continues to rage on the true meaning of federalism and the proper allocation of power between the federal government and the states. The Democratic Party usually prefers a stronger federal government while the Republican Party tends to prefer stronger state governments. But the Civil Rights Era would bring one common thread to light: neither the federal government, nor state governments, nor private individuals or corporations could violate individual rights.

3. Individual rights

The American Declaration of Independence famously states that:

“We hold these Truths to be self-evident: that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness.”

These words were radical and unprecedented at the time of their writing in 1776. The equality of all men (all people), and the existence of inherent rights given to all by God rather than a monarch, had never before been asserted by a people in a founding national document. Inspired in part by the Declaration in the years immediately following its signing, 5 of the 13 states abolished slavery or set a timetable for its abolition. However, by the time the Constitution was written and adopted in 1789, slavery was nonetheless enshrined into law and voting rights were limited to white, landowning men 21 and older. Over the decades, more and more groups would cite the words of the Declaration as they came to demand equal rights.

The Constitution, as originally proposed and submitted for ratification to the states, specifically guaranteed only a few rights. Just as concerns about having a too-strong central government compared to the states had led to the development of the concept of federalism, concerns about a central government having too much power over individuals led to the drafting of the Bill of Rights.

The first ten amendments to the Constitution are known collectively as the Bill of Rights and have become integral to the American vision of government. 

The Bill of Rights

  1. The First Amendment: freedom of speech, of the press, of religion, of assembly, and to petition the government for redress of grievances
  2. The Second Amendment: right to bear arms (in full, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”)
  3. The Third Amendment: freedom from having to house soldiers
  4. The Fourth Amendment: freedom from unreasonable search and seizure
  5. The Fifth Amendment: prevention of being charged for the same crime twice (known as “double jeopardy”), of being compelled to testify against oneself, of being “deprived of life, liberty, or property without due process of law,” and of property being taken by the government without “just compensation”
  6. The Sixth Amendment: right to be informed of charges filed when accused of a crime, to a speedy trial by jury, to a lawyer, to call witnesses
  7. The Seventh Amendment: right to a jury trial in civil cases with a value over $20
  8. The Eighth Amendment: freedom from cruel and unusual punishment
  9. The Ninth Amendment: protection of other individual rights not listed in the Constitution
  10. The Tenth Amendment: the states or the people reserve any powers not given to the federal government or prohibited to the states

Only after the supporters of the Constitution promised to have the first Congress submit the Bill of Rights through the amendment process did a sufficient number of states agree to ratify the new Constitution. Thus in some sense, the Bill of Rights is responsible for the existence of the United States as we know it.

Still today, these are some of the strongest individual rights in the entire world. The First Amendment right to free speech, for example, is nearly absolute, permitting obscenities and offensive comments that many other countries do not allow. The principle behind this wide-ranging freedom has been summarized as, “I disapprove of what you say, but I will defend to the death your right to say it.”

During the Civil War, President Abraham Lincoln drew upon the ideals of the Declaration of Independence to argue for the abolition of slavery. In his famous Gettysburg Address, he cited “the proposition that all men are created equal” and called for “a new birth of freedom” to live up to that ideal. After the war, three additional Constitutional amendments were passed that directly impacted individual rights:

  • The 13th Amendment, abolishing slavery
  • The 14th Amendment, preventing race-based discrimination by states and requiring states to uphold “the equal protection of the laws” for all people
  • The 15th Amendment, stating that race could not be used to exclude someone from the right to vote

The next major attempt to expand individual rights to a new group, the suffragette movement, had begun in 1848 and picked up in the 1870s, seeking to extend the right to vote to women. After a decades-long campaign started by leaders including Elizabeth Cady Stanton and Susan B. Anthony, the 19th Amendment to the Constitution was passed in 1920, stating that the right to vote “shall not be denied or abridged by the United States or by any State on account of sex.”

Over the decades, as the Roaring Twenties gave way to the Great Depression, then World War II, then the Korean War, discrimination against African-Americans and prevention of their full enjoyment of individual rights (including the right to vote) was still widespread. Some 90 years after the abolition of slavery, the 14th and 15th Amendments were not, in practice, fulfilling their intended goal of providing full legal equality to African-Americans. The fight to change this sorry state of affairs became known as the Civil Rights Movement.

The first major success in extending individual rights to African-Americans came in 1954, when the Supreme Court ruled in the famous case Brown v. Board of Education of Topeka that the “separate but equal” doctrine allowing segregated schools for white and non-white students was an unconstitutional violation of the Equal Protection Clause. This landmark ruling meant that all state laws segregating schools were now null and void, and the federal government had the power to enforce their repeal.

Soldiers from the 101st Airborne Division escort the Little Rock Nine students into the all-white Central High School in Little Rock, Arkansas, 1957. Photo by US Army.

Plans were drawn up for integrating African-American students into previously all-white schools throughout the South. The first to be ready for implementation was in Little Rock, Arkansas. In 1957, nine African-American students attempted to enter Little Rock Central High School, where they had officially enrolled. However, the Governor of Arkansas, Orval Faubus, deployed the Arkansas National Guard to physically block the students from entering the building. After three weeks of unsuccessful negotiations, President Dwight Eisenhower sent the 101st Airborne Division of the U.S. Army to enforce the integration of the school and federalized the Arkansas National Guard, taking it out of Governor Faubus’s control. The students, who came to be known as the “Little Rock Nine,” were then able to attend the school.

This was a dramatic demonstration of the federal government’s new and growing role as the guarantor of individual rights throughout the country. It also reinforced the supremacy of federal law and federal courts over state laws whenever the two conflicted. Similar fights and eventual intervention of federal officials would occur when Ruby Bridges attempted to enroll at William Frantz Elementary School in New Orleans, Louisiana as well as when two African-American men attempted to enter the University of Alabama. In the latter case, Alabama Governor George Wallace personally blocked the door before being removed, attempting to make good on his promise in his inaugural speech to support “segregation now, segregation tomorrow, segregation forever.”

John F. Kennedy, during his campaign for President in 1960, pledged to fight for civil rights legislation that would finally eliminate segregation and outlaw race-based discrimination in all areas of life. He won the election but was not able to pass the civil rights laws he envisioned before being assassinated in 1963. His successor, Lyndon Johnson, was able to use his formidable negotiating abilities, in combination with the wave of sympathy generated by President Kennedy’s death, to pass a raft of civil rights laws over his nearly two terms in office: the Civil Rights Act of 1964, the Voting Rights Act of 1965, the passage of the 24th Amendment banning poll taxes, and the Fair Housing Act of 1968. These laws collectively eliminated legalized, race-based discrimination throughout the United States.

While the Supreme Court had struck down the Civil Rights Act of 1875 based on a narrow interpretation of the 14th Amendment, the position of the Court had shifted substantially in the ensuing 90 years. The Court upheld all of the 1960s civil rights bills, citing the federal government’s enumerated power to regulate interstate commerce (known as the “Commerce Clause“), the 14th Amendment, and the 15th Amendment as sufficient authority for the various federal laws banning racial discrimination.

Extension of individual rights to additional groups has continued since the Civil Rights Era, from giving 18-year-olds the right to vote via the 26th Amendment in 1971 to the Supreme Court’s legalization of same-sex marriage in 2015 in the case Obergefell v. Hodges. Debate also continues over which rights are or should be guaranteed by our legal system: Is there a right to an education? A right to abortion? And what about the rights of children? The Supreme Court ruled in the 1989 case DeShaney v. Winnebago County that children do not have a Constitutional right to be protected from abuse by their parents, even if the state knows the child is being abused. Should that be the case? Questions like these can only be answered by vigorous debate and engagement in the political process.

The various roles of the court system, the Presidency, and Congress lead us to the final defining piece of the American structure of government.

4. Separation of powers

Representative democracy, federalism, and individual rights are all important concepts for any engaged citizen to know. But how do they relate to the actual machinery of government—its day-to-day functioning?

We have already discussed how the Constitution divides power between the state governments and the federal government. But as an additional layer of protection to prevent the accumulation of too much power at the federal level, the Framers of the Constitution laid out a unique system that divided the federal government itself into three branches: the Legislative Branch, the Executive Branch, and the Judicial Branch.

In a parallel to federalism, each branch was given various specific and exclusive responsibilities. The Legislative Branch was to write the laws, the Executive Branch was to carry out and enforce the laws, and the Judicial Branch was to judge disputes arising under the laws.

This division of labor had several goals. First of all, as mentioned before, it aimed to limit federal power. The Framers expected the legislative branch (Congress) to accrue the most power, so for this reason among others, they decided on a further subdivision of the Legislative Branch into two parts, the Senate and the House of Representatives. Each branch was to be elected separately and in different fashions, as mentioned earlier. Two Senators from each state would be elected by each state for six-year terms, while Representatives (whose number would grow in proportion to the population of their states) would be elected by the people every two years. Bills would need to be passed by both the Senate and the House, and then be signed by the President, in order to become law.

The second goal of the separation of powers was to ensure that each branch of government (Congress, the President, and the courts) could specialize in its responsibilities and carry out its particular duties efficiently. Critically, this allowed for a “vigorous Executive” directly accountable to the people and able to act quickly in times of emergency or war. An independent Executive Branch seems natural to us today, but in a parliamentary system such as that used in the U.K., Canada, Australia, and other former British colonies, there is no separation at all between the executive and legislative functions of government. The Prime Minister is simply a Member of Parliament and the leader of the majority party, which can make legislating more efficient. However, Alexander Hamilton in The Federalist No. 70 argues that this is not necessarily a good thing:

In the legislature, promptitude of decision is oftener an evil than a benefit. The differences of opinion, and the jarrings of parties in that department of the government, though they may sometimes obstruct salutary plans, yet often promote deliberation and circumspection, and serve to check excesses in the majority.

The third goal of splitting the government was to create a system of checks and balances among the three branches. By setting up a structure that allowed each branch to check (restrain) the activities of the other two branches, the Framers hoped to channel the natural ambition of individuals in government into something productive: confronting the excessive ambition of other aspiring government leaders, who would be viewed as competitors.

So how do the checks and balances work?

The graphic above explains the specific actions that each branch is empowered to take to hold the other two branches accountable. Notice the symmetrical, almost circular nature of the diagram: each power that a branch has over another branch can be restrained, at least in part, by that other branch. For example, Congress can pass laws, but the President can veto laws, restraining the Legislative branch. Congress can then override the President’s veto with a two-thirds majority, restraining the Executive branch.

Congress can also impeach the president. Impeachment is the process by which Congress puts elected officials on trial for “treason, bribery, or other high crimes and misdemeanors,” as laid out in the Constitution. The process begins in the House of Representatives. If a majority of the House votes for impeachment, the matter is sent to the Senate. The Senate acts as a jury, and a two-thirds majority vote is required for conviction. In the history of the United States, two presidents have been impeached by the House (Andrew Johnson and Bill Clinton), and both were acquitted by the Senate.

One thing the Founders did not anticipate was the significant growth in the power of the Executive Branch. This has been largely facilitated by technologies such as radio, first used by President Calvin Coolidge in 1923, and then television, starting with President Harry Truman in 1947, which allowed the President to speak directly to the American people in real time and shape public opinion in a way that was not possible in the 18th century. This, in combination with Congress’s voluntary surrender of many powers to the presidency over the years, has somewhat upset the system of checks and balances as originally intended, according to historians like Ray Raphael: “If you just took the Founders at the [Constitutional] convention, and how they envisioned the presidency, compared to the presidency today, they would be absolutely aghast. They had no idea that they were going to create a single individual with this sort of powers. If you’re talking original intent of the Framers, they saw a much more limited role than we have today.”

Thus in reality, the balance of power can shift over time, and things do not always work as cleanly and simply as the checks and balances diagram suggests. There are grey areas that allow each branch occasionally to find ways to exceed their traditional authority. There has been substantial debate over the following situations, for example, in various instances:

  • Whether the Courts have overstepped their bounds from interpreting the law to actually making the law (usurping the legislative branch). This can be heard in concerns over overzealous judges who attempt to “legislate from the bench.”
  • Whether a President is enforcing the laws as Congress passed and intended them or is, in fact, interpreting them in a way that alters their intended outcome (usurping the legislative and judicial branches).
  • Whether Congress has the right to interfere in foreign negotiations (usurping the executive branch).

To some extent, the push and pull between the branches in these situations is exactly what the Founding Fathers intended. The challenge today is to ensure that the partisan rancor surrounding these discussions does not bring the policy-making process to a grinding halt and prevent the discussion, development, and implementation of solutions to the challenges America faces.

One critically important aspect of the separation of powers is the independence of the judiciary. This refers to the ability of federal courts and judges to make decisions based solely on the law rather than political pressure. For example, the President cannot call the justices of the Supreme Court and order them to rule in a certain way. And Congress cannot pass a law overruling or ignoring the decision of a federal court. Overruling a Supreme Court decision requires a constitutional amendment.

To ensure the judiciary’s independence, federal judges are appointed for life terms, meaning they stay in their positions until they resign, die, or are impeached (which is very rare). This frees up judges to make decisions based only on the merits of each case rather than having to worry about how ruling one way or another will affect their re-election prospects or favor with a particular political party.

An independent judiciary is considered critical to any functioning modern democracy. Poland faced widespread criticism in 2018 and protests throughout the country following efforts by its ruling party to roll back the independence of the judiciary and increase the influence of the Parliament on legal decisions. Authoritarian regimes such as those found in Russia and China are notorious for the political influence they exert on their court systems, weighting the scales against people selected for punishment by the government.

The idea that all persons and corporations are equal before the law, agreements will be enforced fairly for all parties, and no one is above the law regardless of their power or influence is known as the rule of law. Maintaining the rule of law through an independent judiciary is key to maintaining and generating trust in government among the general public as well as businesses. Since the misdeeds of any government agency or public official can be challenged in court, ensuring the integrity of the courts also gives teeth to the system of checks and balances inherent in the separation of powers.


Summary and Conclusion

The four concepts we have covered—representative democracy, federalism, individual rights, and separation of powers—are only a springboard and starting point for further learning on your journey to active civic engagement.

As a refresher:

  1. The United States is not a direct democracy, where every person can vote on every law and a simple majority can overrule the minority in any situation. Rather, we are a representative democracy through a constitutional republic. We elect individuals to represent us in the lawmaking process, and those individuals are constrained by the structures outlined in the Constitution.
  2. The system of federalism distributes power between the state governments and the federal government. While the federal government has increased its relative power significantly since the founding of the country, the states retain broad autonomy, including outsized influence in the Electoral College and U.S. Senate.
  3. Part of the story of the United States is the constant striving to live up to the ideals enshrined in the Declaration of Independence: “that all Men are created equal…[and] are endowed by their Creator with certain unalienable Rights.” Over time, individual rights have been extended and guaranteed to more and more groups, leaving bigotry and injustice discarded in the wake of their forward progress.
  4. The separation of powers into three branches of government, in concert with the system of checks and balances, an independent judiciary, and the rule of law, are designed to prevent the accumulation of too much power in the hands of a small number of people and to ensure equality in the eyes of the law.

These four ideas form the bedrock of the American system of government and are critical to understanding how it functions. The overview of each one provided in this guide can serve as a valuable first step in gaining a better understanding of the unique story of America, the ideals and goals behind the different aspects and structures of our government, and a sense of what role you want to play in driving the United States through the pages of history on the road to freedom and justice for all. The rest is up to you. As Justice O’Connor was known to say, “It’s not enough to understand, you’ve got to do something.”

 

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