These institutions, which all flow from the framers’ understanding that constitutional politics should be separate from ordinary politics and should concern itself with the structural problems inherent in representative government, have a great deal to do with the remarkable stability that the constitution has been able to achieve. Throughout the constitution’s long and uninterrupted reign as the governing document of the American polity, the vast majority of the political debates in the United States have been conducted within the constitutional structure, not about it. Since 1791, when the Bill of Rights was adopted as the completion of the constitution’s ratification process, only seventeen additional amendments have been accepted, an average of less than one per decade.¹⁸ To be sure, some scholars have argued that the amendment mechanism makes change so difficult that it harms democracy and the efficacy of government. But it is unclear how democracy and governmental efficacy in the United States would have looked with a different mechanism, especially when one takes into account the fundamental instability that might have resulted from frequent change. At any rate, the problem is less severe than it may seem, because a subtler method of amendment has been employed in America, one that allows gradual change without requiring amendments in the formal document—namely, de facto change through judicial interpretation. Similarly, permanent institutions have been created and modified without being given constitutional expression, such as the system of political parties and the presidential cabinet. Finally, by allowing the possibility of later constitutional conventions with wide powers, the constitution offered an additional means of change, at least in principle, in cases where amendment seemed either undesirable or unlikely.

At the same time, as the founders foresaw, most of the central changes in American politics have taken place within the context of ordinary politics—in legislation, the shifting of emphases in the programs of the executive branch, and the like. The test of a well-designed constitution consists in its leaving to the public and its leaders a variety of means to effect social change, and the American constitution has passed this test with flying colors. The stability of the constitution, combined with its ability to facilitate necessary changes, has resulted in a profound loyalty among the great majority of Americans to the constitutional structure. Americans are almost universally committed to effecting change within the system, while leaving the system itself essentially unchallenged.

On this point, of course, it is impossible to ignore the Civil War. Some regard its outbreak and conclusion as the exception that proves the rule: The American constitution created an arrangement that failed only once, when some of the states decided to leave the Union rather than engage in prolonged conflicts within it. The constitution’s failure, according to this view, lay in its lack of mechanisms flexible enough to contain the disagreement within its framework. However, it can as easily be argued that in the Civil War, the constitution did not “fail” the way the Articles of Confederation or the various French constitutions failed, but rather that the rupture between the sides reflected something more fundamental and inevitable. The war arose at a juncture when political visions in the North and South were so distant that they could no longer coexist within a shared framework, and so ordinary politics was simply no longer suitable. In other words, what failed may not have been the constitution, but the very idea of the Union. Eventually, after the decision on the battlefield, both sides continued to work jointly within the context of the same constitution, as amended to reflect the ban on slavery that was one of the war’s principal outcomes.

The balance achieved between an “energetic” government capable of fulfilling its role and the limitation of this government by checks and balances was an additional reason for the constitution’s success. The legislative branch was to keep watch on the president, preventing the possibility of authoritarian rule. At the same time, a counterbalance had to be instituted that would limit the danger of populist rule by an overly powerful legislature. The internal division of Congress into two separately elected houses, along with the active participation of the president in the legislative process through the right of veto, served this goal well. While it could be argued that this structure is too restrictive, stunting the legislative process, there are good reasons to think that such restraint has been a good thing. The American version of separation of powers, according to which full, effective power rests only with a party that controls the presidency and both houses of Congress, is very different from the situation in parliamentary democracies, where the ruling government always has, by definition, control over parliament.¹⁹ The American system offers a far more structured system of checks and balances than the parliamentary system, which tends to become dependent on features such as the professional civil service and coalition politics. The American system of a strong president, balanced by the two houses of the legislature and by an independent Supreme Court, has proven capable of enabling forceful action when necessary, but without resorting to authoritarian rule. The belief of the founders as expressed in The Federalist, that only the strength and ambition of politicians in one branch are capable of consistently restraining the tendency of other branches to amass excessive power, has proven correct.

Not only have the institutions of American government succeeded in living in balance with one another, but that balance has proven itself able to shift as circumstances in the country required, without necessitating a change in the constitution. All three branches have succeeded, as the need arose, in asserting powers not explicitly granted them from the outset. Although the tendency of the branches to broaden their powers has caused problems on occasion, the branches have generally succeeded in expanding only into the realms in which they possess a real comparative advantage over the others. The Supreme Court has expanded its authority in the defense of civil rights; Congress in the determination of priorities in socioeconomic matters; and the president in the preservation of order and the use of concentrated force in the face of civil strife or foreign aggression. The constitutional system may go too far in limiting the executive branch, but in times of crisis the United States has been led by presidents who did what was necessary to address the problems facing the country.²⁰ In the final analysis, the first modern democracy has managed to survive since its inception without suffering a single military coup or other suspension of the constitution’s authority. This in itself is no small feat, and the checks and balances in the constitution have contributed greatly to it.

Moreover, the constitution has succeeded in striking the proper balance between the threat of populism, on the one hand, and the danger posed by politicians’ private ambitions, on the other. The main answer of the American constitution to this eternal dilemma is the republican structure. It was the founders’ assumption that a certain amount of faith in the wisest and most experienced members of society is in the common interest of all members of society.²¹ The best process of decisionmaking, it was believed, was not through popular referenda, but through the careful decisions of the people’s elected representatives, or, as in the case of federal judges, through individuals appointed by those representatives. It was in this context that the founders also emphasized the importance of fostering good character among the citizenry, and, especially, of reinforcing the tendency of voters and their representatives to elect people of upstanding character to positions of leadership. While the American system has of course had its failings, particularly in the realm of civic equality for minorities, it is still the case that the republican principle has on the whole functioned very well throughout most of the history of the United States and succeeded in bringing into office good leaders, par­ticularly in times of crisis: Leaders such as Abraham Lincoln, who was able to preserve the Union in its most trying hour; and Franklin Delano Roosevelt, who led the country through the Great Depression and the Second World War.

The republican principle is also at work in the houses of Congress, despite the fourfold expansion of the Senate from 26 members at its inception to the current 100 senators, and the sevenfold rise in the number of Representatives from 65 to 435. These two bodies make most of their important decisions in smaller committees, which preserve the republican element while streamlining the functioning of government. Thanks to these arrangements, the populist danger that was of such concern to the founding fathers, especially the authors of The Federalist, has not appeared, and, except for very limited periods, the dictates of the masses have not led to irresponsible economic policy, the outbreak of wars, systematic persecution, or the election of demagogical leaders.²²

The most important test that the constitution seems to have failed, at least for most of American history, is the preservation of the rights of minorities. These rights were, according to the founders, supposed to be guaranteed by political structures that would neutralize the dangers of factionalism or arbitrariness by preventing any one group from exercising dominance over the others. The outstanding example brought by the Federalist authors of such a right is the free exercise of religion, which they contended would be protected by the abundance of religious groups in the United States. In their view, the sheer size and diversity of a country is also the most effective guarantee of the other rights of individuals or groups. A multiplicity of private interests will result in a general willingness to defend the rights of minorities, since each group will know that in certain matters it is liable to find itself in the minority. The problem with this reasoning is that the tolerance achieved is due to each group’s fear of dominance by the others, and so it in fact exists only among groups that belong to the national mainstream, whose members could belong to the majority regarding certain issues, and the minority regarding others. The situation of groups that are “chronic minorities” is more difficult, because injury to them does not raise such fears among the majority. Alexis de Tocqueville’s concerns about “the tyranny of the majority” certainly have had a basis in the American reality.²³ The rights of Indians and slaves were denied in the constitution itself, and the history of the attitude to blacks since then bespeaks the limitations of the social mechanism that the authors of The Federalist believed would protect the rights of the “chronic” minorities.