The Handy Law Answer Book. David L Hudson

accept defeat. “As true and faithful republicans [honorable citizens] you had all better go home.”

      One of the most prominent figures of the American Revolution and the country’s early history, Patrick Henry was an Anti-Federalist who opposed a U.S. Constitution that he feared would give government too much power over individuals (Library of Congress).

      Many Anti-Federalists became supporters of the new government. For example, Anti-Federalist Elbridge Gerry, who refused to sign the Constitution, later became James Madison’s vice president.

KEY CONCEPTS AND STRUCTURE OF THE CONSTITUTION

      What is federalism?

      Federalism refers to a division of power between the federal government and the state governments. In federalism, some powers are delegated to the national, federal government and other powers are kept or reserved by the state governments.

      What is separation of powers?

      Separation of powers refers to the division of power among different parts of government. The U.S. Constitution reflects this principle by dividing power between the legislative, executive, and judicial branches. If one branch of government invades the province of another branch of government, then that branch has violated the separation of powers principle.

      The Framers understood that dividing power among the different branches of government would ensure that no single branch would become too powerful. This concept is known as the separation of powers. Many of the Founding Fathers understood the importance of separating powers between the branches of government. Many of them had read the French philosopher the Baron de Montesquieu’s L’Esprit des Lois (“The Spirit of the Laws”), which addressed this principle.

      Madison in the Federalist Papers described Montesquieu as “the oracle who is always consulted and cited on this subject.” Madison described the principle as: “The accumulation of all powers, legislative, executive and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.” Separation of powers is a philosophy in which each branch has its own powers. U.S. Supreme Court Justice Anthony Kennedy explains: “Separation of powers was designed to implement a fundamental insight: Concentration of power in the hands of a single branch is a threat to liberty.”

      Our Constitution adheres to this principle. The powers of Congress are described in Article I. The powers of the executive branch are detailed in Article II, and the powers of the judicial branch are listed in Article III.

      This principle is important in not only the federal government but also state governments. For example, state judicial branches traditionally have regulated lawyers. If a state legislature passes a law regulating the conduct of lawyers, such a law may violate the separation of powers principle. In this example, the legislative branch has invaded the province of the judicial branch.

      The Constitution attempts to ensure separation of powers by instituting a system of checks and balances between the different branches of government. Each branch has a check on the other two branches. For example, the judicial branch has a check on Congress, because it can declare laws or bills passed by Congress unconstitutional. Similarly, the judicial branch has a check on the president because it can also declare executive acts unconstitutional.

      What is an example of a separation of powers problem?

      A prime example of a separation of powers problem presented itself in the Youngstown Steel case of Youngstown Co. v. Sawyer (1952). In that case, President Harry Truman seized control of the nation’s steel mills by executive order after hearing of a nationwide steel strike. President Truman feared that such a strike could cripple the U.S. national defense.

      The U.S. Supreme Court ruled that the president exceeded his powers as the head of the executive branch, as the government control of the steel mills could only be accomplished by a federal law passed by the U.S. Congress. Thus, the president infringed on the powers of the legislative branch, creating a separation-of-powers problem. The ruling stated in part:

      Nor can the seizure order be sustained because of the several constitutional provisions that grant executive power to the president. In the framework of our Constitution, the president’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad. And the Constitution is neither silent nor equivocal about who shall make laws which the president is to execute. The first section of the first article says that “All legislative Powers herein granted shall be vested in a Congress of the United States”….

      The Founders of this Nation entrusted the lawmaking power to the Congress alone in both good and bad times. It would do no good to recall the historical events, the fears of power and the hopes for freedom that lay behind their choice. Such a review would but confirm our holding that this seizure order cannot stand.

LEGISLATIVE BRANCH

      How did the U.S. Constitution structure the legislative branch?

      The Constitution provides for a bicameral (two chamber) legislature—the House of Representatives and the United States Senate. The Founding Fathers found their inspiration for this bicameral model from the English Parliament, which had a House of Lords and a House of Commons. However, not all members of the Philadelphia Convention supported a two-house Congress. Some members—particularly those from less populous states—favored a one-house Congress so that they would have the same power as the larger states.

      The Capitol Building houses the U.S. Congress and Senate. The United States has a bicameral system of representatives and senators inspired by the British model of government (iStock).

      What was the Virginia Plan?

      The Virginia Plan, introduced on May 29, 1787, formed the basis of the Convention and was debated word by word. The plan contained 15 resolves. It was the first plan introduced in the convention and the one that most closely resembled the convention’s final product. It proposed that the powers of the federal government should be expanded to accomplish three goals: “common defence, security of liberty and general welfare.” Resolve number three provided for two houses of the Congress, or a bicameral legislature. Under the Virginia Plan, the people would elect the first branch. Then, the members of the first branch would elect the second branch of the “National Legislature.”

      Under the Virginia Plan, the U.S. Congress would possess great power. Resolve number six granted Congress the power to negate, or veto, any laws passed by state legislatures. Resolve number seven provided Congress with the power to appoint the “National Executive” or leader of the country. Thus, under this plan, Congress, not the people, would select the national leader. Resolve number nine provided for a “National Judiciary” or a set of judges that could hear cases throughout the country.

      The Virginia Plan was, therefore, a plan for the structure of the new United States government under the new Constitution being discussed in the Philadelphia Convention. It established the three branches of government—the legislative, executive, and judicial branches; it called for a bicameral legislature; and it provided that each house would be selected based on the population of the respective states, meaning that the larger more populous states would have more representatives and senators. The Virginia Plan also called for a very strong national government.

      With what plan did the Virginia Plan compete?

      The other major plan for the structure of the new Constitution was the so-called New