The Separation of People and State

By Barnett, Randy E. | Harvard Journal of Law & Public Policy, Spring 2009 | Go to article overview

The Separation of People and State


Barnett, Randy E., Harvard Journal of Law & Public Policy


The subject of American exceptionalism, about which much has been written, is extremely complex. There is no simple way to describe all the ways in which America differs from the other nations of the world. Steven G. Calabresi provides a wonderful and wide-ranging summary in his article "A Shining City on a Hill." (1) In his conclusion, Professor Calabresi writes:

   American exceptionalism is thus absolutely exceptional among all
   the exceptionalisms of the world because of the belief that anyone
   of any race or nation can become an American just by believing in a
   set of ideas. Ours is a universal creed, and it is not predicated
   on the nationalist belief that we are superior because of who we
   are. Americans think America is superior because of what Americans
   believe. (2)

And what is that creed? In his book American Exceptionalism: A Double-Edged Sword, (3) Seymour Martin Lipset offers the following summary:

   Born out of revolution, the United States is a country organized
   around an ideology which includes a set of dogmas about the nature
   of a good society.... [The American] ideology can be described in
   five words: liberty, egalitarianism, individualism, populism, and
   laissez-faire. The revolutionary ideology which became the American
   Creed is liberalism in its eighteenth- and nineteenth-century
   meanings, as distinct from conservative Toryism, statist
   communitarianism, mercantilism, and noblesse oblige dominant in
   monarchical, state-church-formed cultures. (4)

Professor Calabresi is indeed correct that the United States Constitution is a central part of the creed that defines, creates, and preserves American exceptionalism. The American vision of constitutionalism includes at least four distinctive elements. Each of these elements has come under challenge by American constitutional law professors, at least some of whom prefer the European model of constitutionalism to the American one. (5) To the extent that these elements are eroded, America becomes less exceptional, which is a welcomed development among some of those same legal academics. (6)

First is the belief in adherence to a founding document: a written Constitution. The novelty of a written constitution has now been widely imitated around the world, but not necessarily imitated is the accompanying American ideology of faithful adherence to a document that both empowers and limits a government. Perhaps this is why the peoples of other countries do not revere their constitutions as Americans traditionally have.

This, in turn, highlights a second distinctly American belief in constitutionally limited government. The written Constitution limited the powers of government in two complementary ways: First, what might be called the "Federalist Constitution" divided powers among the branches of the national government and between the national government and the States; (7) and second-and contrastingly--the "Anti-Federalist Constitution" provided specific protections of enumerated rights in the form of a Bill of Rights, along with express protections for the unenumerated rights, privileges, and immunities of the people. (8)

A third characteristic of American constitutionalism stems from the second: The written limits on the powers of government invite not only the legal enforcement of these limits by an independent judiciary, but also the invocation of these limits by the Congress, the Executive, state governments, and the People themselves. Although the judicial enforcement of constitutional limits on legislative powers was a major feature of the original Constitution, (9) since coming under assault by Progressives during the early twentieth century, judicial nullification has been challenged increasingly as "countermajoritarian" and, therefore, illegitimate. (10)

This leads to a fourth characteristic of the American creed, one defined by our 200-year-old written Constitution yet still controversial today: the anti-democratic nature of the Constitution's republican form of government, or what Sandy Levinson has called "our undemocratic Constitution. …

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