Chapter 2 - The Constitution (The Nature of the US Constitution Envisaged…
Chapter 2 - The Constitution
Checks and Balances
Powers of Congress
Requires a high threshold of votes in the Senate to convict, e.g. the Senate failed to impeach President Clinton in 1999.
Presidents can veto laws, e.g. President Obama vetoed the Keystone XL Pipeline Approval Act in 2015.
Ratifying Foreign Treaties
Presidents bypass formal treaties, for example by making executive treaties, e.g. the nuclear deal in Iran in 2015 was made without congressional approval by President Obama.
Powers of the Supreme Court
Striking down laws passed by Congress as unconstitutional (judicial review).
The SC cannot initiate cases of its own accord, e.g. same-sex marriage was legalised across America only when a case (Obergefell v Hodges) came before the Supreme Court.
The president can alter the political composition of the Court via appointments when vacancies arise. With the support of Congress, they could enlarge (pack) the Court, e.g. FDR tried to 'pack' the SC in the 1930s when it struck down some of his New Deal programme.
Congress can pass a constitutional amendment (though this is far from easy), e.g. in 1913, the Thirteenth Amendment permitted a federal income tax following an earlier SC case (Pollock v Farmers' Loan & Trust Co.).
Powers of the President
Appoints head of government departments and federal judges.
Senate can reject a nomination by a simple majority, e.g. in 1987 the Senate rejected President Reagan's nominee Robert Bork as a Supreme Court justice.
Congress can overturn vetoes on a two-thirds vote in each chamber, e.g. in 2016, Congress overrode Obama's veto of the Justice Against Sponsors of Terrorism Act.
Has charge of the armed forces (commander-in-chief).
Congress can refuse funds (power of the purse) and has passed laws to limit presidential actions, e.g. 1973 War Powers Act.
The US Constitution was influenced by the ideas of the French philosopher
(1689-1755). It was drawn up in
in Philadelphia and ratified in
, replacing the much weaker
Articles of Confederation
Each branch also
checks and balances
the other. For example, the president may veto an act of Congress, but Congress can impeach (remove) the president and override the veto.
The main original document sets out the respective powers of each branch of government and also aspects of the political process, such as indirect election of the president and representation rules for Congress.
It was designed to avoid tyranny, especially by the leader, and so power is both separated and overlapping between the different branches of government: executive (presidency), legislature (Congress) and judiciary (Supreme Court).
Most aspects dealing with the protection of individual rights and freedoms are found in the amendments starting with the
Bill of Rights
The US Constitution was essential a compromise between:
Large states such as Virginia and small states such as Rhode Island - hence, small states had equal representation in the Senate (two senators per state irrespective of population size), while the number of seats in the House of Representatives is determined by population.
Slave and non-slave states - slave states were allowed to count slaves as three-fifths of a free person for the purposes of calculating the size of a state delegation in the House of Representatives.
Those who wanted a stronger central government (Federalists such as Alexander Hamilton and John Adams) and those who wanted most power to rest with the states, e.g. Thomas Jefferson.
The Nature of the US Constitution Envisaged by its Framers
No one branch of government would become too powerful. The desire was to avoid an over-powerful 'tyranny', as many Americans perceived the British monarchy to be in the late 18th century.
The different branches would cooperate and make compromises with each other.
A suspicion of democracy which was associated with mob rule. Nowhere in the original Constitution was the right even of 'one free (white) man, one vote' laid out. Nor were the president or Senate to be elected directly. Originally, Senators were to be chosen by state governments; the Senate switched to direct elections only in 1913 (Seventeenth Amendment).
It would be permanent and long-lasting: hence it was made deliberately difficult to amend/formally change.
The Separation of Powers in the US Constitution
Ratifies foreign treaties and formal declarations of war.
Can impeach the president and judges.
Must confirm presidential appointments (Senate only).
Cannot serve in government, so must resign if appointed to the executive by the president. Hence Jeff Sessions had to resign as senator for Alabama when appointed by Trump as Attorney General in 2017.
Passes laws and raises taxes
Ensures the actions of Congress and the President are in accordance with the Constitution.
Can 'strike down' laws/actions it sees as unconstitutional.
Interprets the Constitution.
Can issue pardons to individuals.
Is in charge of the federal bureaucracy and chooses secretaries of states (ministers).
Can suggest laws to Congress and can also veto them.
Oversees foreign policy and relations with foreign powers.
Cannot sit in Congress, nor can members of their Cabinet.
Is commander-in-chief of the armed forces.
Exceptions to the Principle of the Separation of Powers
The president's power of pardon is judicial rather than executive power.
Control and deployment of the armed forces: the president is commander-in-chief, but Congress must authorise any declaration of war.
The VP is also president of the Senate and has the casting vote in the event of a tie.
The Federal Nature of the US Constitution
Power in the USA is also restricted by a division of powers between federal (central) government and the states. This is known as
Since the 1930s and Franklin Roosevelt's New Deal, Power has clearly shifted towards federal government and away from the individual states.
There is often a clash between policies/laws made in Washington DC and individual states. For example, in the 1950s and 1960s, many conservative states in the Deep South strongly resisted efforts to desegregate. More recently, liberal states and cities such as San Francisco have opposed President Trump's demands to round up and deport illegal immigrants (the sanctuary cities movement).
States retain a considerable number of powers.
Aspects of their election process, including whether to use primaries or caucuses to select candidates.
Whether or not to have the death penalty.
Power over local taxes such as sales tax and local property taxes.
There is sometimes a direct clash between state and federal law. For example, federal law prohibits the cultivation and sale of marijuana. Yet the drug has been legalised in a number of states, including California. Although federal law in theory has the last word, on the ground it is very difficult to enforce.
The Tenth Amendment states that powers not held by the federal government shall reside with individual states.
The Formal Amendment Process
There are only 27 formal amendments to the US Constitution. The last major one was in 1971, which lowered the voting age to 18.
Over the centuries, thousands of amendments have been proposed, but most have failed. Among notable failures is the Equal Rights Amendment, which would have guaranteed gender equality. Passed by Congress, it then failed to secure ratification by enough states in time (1982), falling 3 states short of the required number.
Formal amendments are difficult to pass. They require a 2/3 majority in both houses of Congress and then ratification by 3/4 of states, often within a set time limit.
The Bill of Rights 1791
The Bill of Rights comprises the first 10 amendments to the US Constitution. It contains most of the key individual rights of American citizens found in the Constitution.
Key rights include the First Amendment right to freedom of expression and the Sixth Amendment right to a fair and speedy trial.
It has been the basis for much debate and interpretation since its adoption - for example, the death penalty and the Eighth Amendment that bans 'cruel and unusual punishment'.
The Informal Amendment Process
As the US Constitution is so problematic to amend formally, in practice many changes are made informally, above all via rulings of the Supreme Court. In these cases, new rights are 'discovered' within the existing wording.
The Citizens United case in 2010, which extended to corporations and other groups First Amendment rights so that they could spend money more freely on election campaigns.
Roe v Wade, which granted American women some access to abortion using the 'due process clause' of the Fourteenth Amendment in 1973.
How well does the US Constitution protect civil liberties and rights of citizens?
These rights include: freedom of expression, the right to a fair trial, equal protection under the law and no bar to having the vote due to race or colour.
The SC in its decisions has often extended and expanded these rights, for example ending segregation (Brown v Topeka 1954) and allowing same-sex marriage (Obergefell v Hodges 2015).
There are entrenched and inalienable rights found within, especially the Bill of Rights.
Having rights and liberties enshrined in a single document makes them easy to access and understand. Most Americans have a clear idea of their individual rights and defend them fiercely.
The Constitution is difficult to update and modernise - too much therefore relies upon informal amendment by the SC.
The SC can and does change its opinions, for example, over racial segregation and homosexuality. Thus, many rights are not permanent and entrenched, but are at the mercy of the SC, which is itself unelected and unaccountable to the people.
Much of the Constitution is not concerned with protecting individual liberties so much as setting out the workings of government. It is no substitute for a comprehensive and modern human rights charter that is fully inclusive and reflective of modern America.
Some rights are much better protected than others - gun owners have their right to bear arms entrenched in the Second Amendment, while entrenched rights exist for women and children.