Founding Principles of American Constitutionalism

The Role of Constituent Power

The presence of a crucial historicist element prevents the American doctrine, established by the constituent power, from imprinting Jacobin political voluntarism. The people exercise constitutional power not only to claim the direct exercise of political sovereignty and make fundamental decisions about the character of the Constitution, but also to secure a stable content of constitutional provisions, thereby opposing the possible arbitrariness of both legislative and constituent power.

Natural Law and Historicism's Influence

Natural law and historicism are not opposed; rather, they bind together, directing the exercise of constituent power toward its perennial goal: to limit and circumscribe the authority of the legislature, which is now opposed by a rigid Constitution.

The 1787 Federal Constitution: A Synthesis

The Federal Constitution of 1787 successfully reconciles the strong presence of the constituent power of the American people with a federal legislative power capable of representing both the American people and the States. This power is notably distinct from the radical obsession of the late 1770s, which feared any form of political autonomy from the social front, all while establishing stable representative bodies.

Checks and Balances in the US Constitution

Separation of Powers and Mutual Controls

The Constitution intended that there is no single higher power, but rather only powers authorized by the Constitution and a balance between them. These include the legislative, executive, and judiciary powers, for which the Constitution provides a number of reserved powers, while also establishing modes of control over each other. Key examples of these checks and balances include:

• The Legislature (Congress) has the power of veto override against the President's chief executive actions.
• The President cannot exercise some of their most important responsibilities without the consent of Congress.
• The Judiciary (judges) has the power to invalidate rules that breach the Constitution.

Bicameralism: House and Senate

Furthermore, the choice of bicameralism is also a choice of equilibrium:

• The Chamber (House of Representatives) represents the unity of the people and the democratic element.
• The Senate primarily represents the interests of the States and the aristocratic element, as its members, in the original version of the Constitution, were chosen by the legislatures of each of the States—that is, by an already selected political class, and not directly by the people.