The Constitution

The Constitution

Adopted on September 17, 1787, the Constitution is the supreme law of the United States of America.

Learning Objectives

Analyze the key historical documents and political theorists that shaped the contours of the Constitution

Key Takeaways

Key Points

  • The Constitution was adopted on September 17, 1787 by the Constitutional Convention in Philadelphia, Pennsylvania. It was ratified by conventions in 11 states. It went into effect on March 4, 1789.
  • The first 10 constitutional amendments ratified by three-fourths of the states in 1791 are known as the Bill of Rights. The Constitution has been amended 17 additional times – for a total of 27 amendments – and its principles are applied in courts of law by judicial review.
  • The due process clause of the Constitution was partly based on common law and on Magna Carta (1215), which had become a foundation of English liberty against arbitrary power wielded by a tyrant.
  • The philosophers John Locke, Thomas Hobbes, and Monstesquieu substantially influenced the underlying principles embodied by the Constitution, such as the notion that the government ‘s duty under a social contract among the sovereign people is to serve them by protecting their natural rights.
  • There is a viewpoint that some Americans have come to see the documents of the Constitution, along with the Declaration of Independence and the Bill of Rights, as being a cornerstone of a type of civic religion.
  • The United States Constitution has had a considerable influence worldwide on later constitutions. International leaders have followed it as a model within their own traditions.

Key Terms

  • United States Constitution: The Constitution is the supreme law of the United States of America.
  • Magna Carta: The 1215 magna carta, also called charter, required King John of England to proclaim certain liberties and accept that his will was not arbitrary. For example, no “freeman” (in the sense of non-serf) could be punished except through the law of the land. This is a right that is still in existence today.
  • civic religion: Term used to refer to view that Americans view the documents of the Constitution, along with the Declaration of Independence and the Bill of Rights, as being a cornerstone of a type of civic religion.

Introduction

The Constitution is the supreme law of the United States of America. The first three articles of the Constitution establish the rules and separate powers of the three branches of the federal government: a legislature, the bicameral Congress which is an executive branch led by the President, and a federal judiciary headed by the Supreme Court. The last four articles frame the principle of federalism. The 10th Amendment confirms its federal characteristics.

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United States Constitution: In the U.S. Constitution, the Taxing and Spending clause gives the federal government of the United States its power of taxation.

The Constitution was adopted on September 17, 1787 by the Constitutional Convention in Philadelphia, Pennsylvania. It was ratified by conventions in 11 states. It went into effect on March 4, 1789. The first 10 constitutional amendments ratified by three-fourths of the states in 1791 are known as the Bill of Rights. The Constitution has been amended 17 additional times – for a total of 27 amendments – and its principles are applied in courts of law by judicial review.

The Constitution guides American society in law and political culture. It is the oldest written national constitution in continuous use. It influenced later international figures establishing national constitutions.

Historical Influences

Several ideas found in the Constitution were new. These were associated with the combination of consolidated government along with federal relationships with constituent states. The due process clause of the Constitution was partially based on common law and on Magna Carta (1215, ), which had become a foundation of English liberty against arbitrary power wielded by a tyrant. Both the influence of Edward Coke and William Blackstone were evident at the Convention. In his Institutes of the Laws of England, Edward Coke interpreted Magna Carta protections and rights to apply not just to nobles, but to all British subjects.

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Magna Carta: The Magna Carta of 1215 was written in iron gall ink on parchment in medieval Latin using standard abbreviations of the period. It was authenticated with the Great Seal of King John. The original wax seal was lost over the centuries. This document is held at the British Library identified as The British Library, Cotton MS. Augustus II.

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Thomas Hobbes: The English political theorist Thomas Hobbes was very influential to the Founding Fathers when the created the Constitution of the United States.

Following the Glorious Revolution, British political philosopher John Locke was a major influence expanding on the contract theory of government advanced by Thomas Hobbes. Locke advanced the principle of consent of the governed in his Two Treatises of Government. Government’s duty under a social contract among the sovereign people was to serve them by protecting their rights. These basic rights were life, liberty, and property. Montesquieu emphasized the need for balanced forces pushing against each other to prevent tyranny. In The Spirit of the Laws, Montesquieu argues that the separation of state powers should be by its service to the people’s liberty: legislative, executive, and judicial.
Changing the “fundamental law” is a two-part process with three steps: amendments are proposed, then they must be ratified by the states. An amendment can be proposed one of two ways. Both ways have two steps. It can be proposed by Congress and ratified by the states. Or it can be on demand of two-thirds of the state legislatures. Congress could call a constitutional convention to propose an amendment, then it would be ratified by the states. To date, all amendments, whether ratified or not, have been proposed by a two-thirds vote in each house of Congress. Over 10,000 constitutional amendments have been introduced in Congress since 1789. During the last several decades, between 100 and 200 amendments have been offered in a typical congressional year.The Amendments

The Constitution has 27 amendments. The first 10, collectively known as the Bill of Rights, were ratified simultaneously by 1791. The next 17 were ratified separately over the next two centuries.

Civic Religion and Worldwide Influence

There is a viewpoint that some Americans have come to see the documents of the Constitution, along with the Declaration of Independence and the Bill of Rights, as being a cornerstone of a type of civic religion. This is suggested by the prominent display of the Constitution, along with the Declaration of Independence and the Bill of Rights. They are kept in massive, bronze-framed, bulletproof, moisture-controlled glass containers vacuum-sealed in a rotunda during the day. At night they are housed in the National Archives Building in multi-ton bomb-proof vaults.

The United States Constitution has had a considerable influence worldwide on later constitutions. International leaders have followed it as a model within their own traditions. These leaders include Benito Juarez of Mexico, Jose Rizal of the Philippines, and Sun Yat-sen of China.

The Bill of Rights

The Bill of Rights is a series of limitations on the power of the U.S. government, protecting the natural rights of liberty and property.

Learning Objectives

Explain the philosophical ideas that influenced the Bill of Rights

Key Takeaways

Key Points

  • The Bill of Rights is the collective name for the first ten amendments to the United States Constitution. They guarantee a number of personal freedoms, limit the government ‘s power in judicial and other proceedings, and reserve some powers to the states and the public.
  • The Articles of Confederation was an agreement among the 13 founding states that established the United States of America as a confederation of sovereign states and served as its first constitution.
  • Delegates to the Philadelphia Convention on September 12, 1787, debated whether to include a Bill of Rights in the body of the U.S. Constitution, and an agreement to create the Bill of Rights helped to secure ratification of the Constitution itself.
  • The Bill of Rights incorporated the ideas of John Locke, who argued in his 1689 work Two Treatises of Government that civil society was created for the protection of property.
  • The idea of adding a bill of rights to the Constitution was originally controversial. While originally authored by James Madison, the bill of rights was opposed by Alexander Hamilton on the grounds that they are unnecessary for the protection of liberties and property.
  • Today, the Bill of Rights continues to play a key role in American law and government, and remains a vital symbol of the freedoms and culture of the nation.

Key Terms

  • Articles of Confederation: The Articles of Confederation was an agreement among the 13 founding states that established the United States of America as a confederation of sovereign states and served as its first constitution
  • John Locke: John Locke, widely known as the Father of Classical Liberalism, was an English philosopher and physician regarded as one of the most influential of Enlightenment thinkers.
  • James Madison: James Madison was an American statesman and political theorist, the fourth President of the United States (1809–1817). He is hailed as the “Father of the Constitution” for being instrumental in the drafting of the United States Constitution and as the key champion and author of the United States Bill of Rights.

The Bill of Rights

The Bill of Rights is the collective name for the first ten amendments of the United States Constitution. It is a series of limitations on the power of the U.S. federal government, protecting the natural rights of liberty and property including freedom of religion, freedom of speech, a free press, free assembly, and free association, as well as the right to keep and bear arms. In federal criminal cases, the Bill of Rights requires indictment by a grand jury for any capital or “infamous crime”, guarantees a speedy, public trial with an impartial jury composed of members of the state or judicial district in which the crime occurred, and prohibits double jeopardy. In addition, the Bill of Rights reserves for the people any rights not specifically mentioned in the Constitution and reserves all powers not specifically granted to the federal government to the people or the States.

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Bill of Rights: The First Amendment rights of free speech, freedom of association, and freedom of petition protect lobbying, including grassroots lobbying.

Articles of Confederation

Prior to the acceptance and implementation of the United States Constitution, the original 13 colonies followed the stipulations and agreements set forth in the Articles of Confederation, created by the Second Continental Congress and ratified in 1781. The Articles of Confederation established the United States of America as a confederation of sovereign states and served as its first constitution. The national government that operated under the Articles of Confederation was too weak however to adequately regulate the various conflicts that arose between the states. The Philadelphia Convention set out to correct weaknesses inherent in the Articles of Confederation. The newly constituted Federal government included a strong executive branch, a stronger legislative branch and an independent judiciary.

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Articles of Confederation: The Articles of Confederation, ratified in 1781. This was the format for the United States government until the Constitution.

The Philadelphia Convention

Delegates arrived at the Philadelphia Convention on September 12, 1787, to debate whether to include a Bill of Rights in the body of the U.S. Constitution. An agreement to create the Bill of Rights helped secure ratification of the Constitution itself. Ideological conflict between Federalists and anti-Federalists threatened the final ratification of the new national Constitution. Thus, the Bill addressed the concerns of some of the Constitution’s influential opponents, who argued that the Constitution should not be ratified because it failed to protect the fundamental principles of human liberty.

Ideas Behind the Bill of Rights

To some degree, the Bill of Rights incorporated the ideas of John Locke, who argued in his 1689 work, Two Treatises of Government, that civil society was created for the protection of property. Locke also advanced the notion that each individual is free and equal in the state of nature. He expounded on the idea of natural rights that are inherent to all individuals.

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John Locke: Author of Two Treatises of Government (1689) which argued that civil society was created for the protection of property. This piece was influential in the creation of the Bill of Rights.

Locke’s political theory was founded on social contract theory. Unlike Thomas Hobbes, Locke believed that human nature is characterized by reason and tolerance. Like Hobbes, Locke believed that human nature allowed men to be selfish. Like Hobbes, Locke assumed that the sole right to defend in the state of nature was not enough, so people established a civil society to resolve conflicts in a civil way with help from government in a state of society. However, Locke never refers to Hobbes by name and may instead have been responding to other writers of the day. Locke also advocated governmental separation of powers and believed that revolution is not only a right but an obligation in some circumstances. These ideas would come to have profound influence on the Declaration of Independence and the Constitution of the United States.

Adoption and Ramification

As the author of the amendments, James Madison submitted his proposal for the ten amendments on June 8, 1789. Madison’s proposal was reworked and adopted as seventeen amendments by the House of Representatives on August 21, 1789, and forwarded to the Senate on August 24. The House version rejected Madison’s idea to incorporate the amendments into the body of the Constitution and instead submitted its seventeen articles to be attached separately “in addition to, and amendment of, the Constitution. ” The Senate edited the House’s proposed seventeen amendments and adopted a version with twelve amendments. The two versions went to the Joint Committee and the Senate’s version became the one adopted by joint resolution of Congress on September 25, 1789, to be forwarded to the states on September 28.

Legacy of the Bill of Rights

The Bill of Rights plays a key role in American law and government, and remains a vital symbol of the freedoms and culture of the nation. One of the first fourteen copies of the Bill of Rights is on public display at the National Archives in Washington, D.C. In 1991, the Bill of Rights toured the country in honor of its bicentennial, visiting the capitals of all fifty states.

The Legislative Branch

The legislative branch is represented by Congress, a bicameral chamber consisting of the House of Representatives and the Senate.

Learning Objectives

Describe the powers accorded to the Legislative Branch under Article I

Key Takeaways

Key Points

  • Article I of the United States Constitution describes the powers of Congress, the legislative branch of the federal government, which includes the House of Representatives and the Senate.
  • Congress has authority over financial and budgetary policy through the enumerated power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States.
  • The United States House of Representatives passes federal legislation that affects the entire country. The House has several exclusive powers: the power to initiate revenue bills, to impeach officials, and to elect the U.S. President in case there is no majority in the Electoral College.
  • Congress has an important role in national defense, including the exclusive power to declare war, to raise and maintain the armed forces, and to make rules for the military.
  • The Senate, comprised of 100 senators, has several exclusive powers not granted to the House, including consenting to treaties as a precondition to their ratification and consenting or confirming appointments of officials in the executive branch.
  • The terms of members of Congress vary: every representative must run for election every two years, whereas every senator must run for election every 6 years.

Key Terms

  • house of representatives: The United States House of Representatives is one of the two houses of the United States Congress. The major power of the House is to pass federal legislation that affects the entire country, although its bills must also be passed by the Senate and further agreed to by the U.S. President before becoming law.
  • senate: The composition and powers of the Senate are established in Article I of the U.S. Constitution. Each U.S. state is represented by two senators, regardless of population. Senators serve staggered six-year terms. The chamber of the United States Senate is located in the north wing of the Capitol, in Washington, D.C., the national capital.
  • Congress: (often capitalized: Congress) A legislative body of a state, originally the bicameral legislature of the United States of America.

The United States Constitution

The United States Constitution consists of a preamble, seven original articles, twenty-seven amendments, and a paragraph certifying its enactment by the constitutional convention. Article I of the United States Constitution describes the powers of Congress, the legislative branch of the federal government. To establish the powers of and limitations of the Congress, the Article addresses the creation of the House of Representatives, which is composed of Representatives from each state. The number of representatives for each state is dependent upon the size of the population. The Article also establishes that there will be two Senators from each state.

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Joint Session of a Two-Party Congress: The United States Congress is an example of a two-party system of governance. In this picture, Obama’s Health Care Speech is being given to both the House and the Senate.

The House and Senate are equal partners in the legislative process—legislation cannot be enacted without the consent of both chambers. However, the Constitution grants each chamber some unique powers. The Senate ratifies treaties and approves presidential appointments, while the House of Representatives initiates revenue-raising bills. The House initiates impeachment cases, while the Senate decides impeachment cases. A two-thirds vote of the Senate is required before an impeached person can be forcibly removed from office.

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Johnson’s Impeachment: The Senate functioning as the Court of Impeachment for the Trial of Andrew Johnson.

Powers of Congress

Congress has authority over financial and budgetary policy through the enumerated power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States. Moreover, Congress has an important role in national defense, including the exclusive power to declare war, to raise and maintain the armed forces, and to make rules for the military. Congress can establish post offices and post roads, issue patents and copyrights, fix standards of weights and measures, and establish Courts inferior to the Supreme Court.

One of Congress’ foremost non-legislative functions is the power to investigate and oversee the executive branch. Congressional oversight is usually delegated to committees and is facilitated by Congress’ subpoena power. A good historical example of Congressional Oversight was the investigation of President Richard Nixon and Watergate.

The Executive branch and political parties and major sources of legislation. For example, the President can use his power to hand a member of Congress the content of a major bill to introduce in the house. Another souce of legislation are Courts. Judges and Justies make law everytime they struckdown laws and provide the new precedent for future legislation. The only institutions that are not sources for legislative ideas are government departments and agencies.

The House of Representatives

The United States House of Representatives is one of the two houses in the United States Congress. The major power of the House is to pass federal legislation that affects the entire country, although its bills must also be passed by the Senate and further agreed to by the President before becoming law. The House has several exclusive powers: the power to initiate revenue bills, to impeach officials, and to elect the U.S. President in case there is no majority in the Electoral College.

Each state is represented in the House in proportion to its population, but is entitled to at least one representative. The most populous state, California, currently has 53 representatives. The total number of voting representatives is fixed by law at 435. Each representative serves for a two-year term. The Speaker of the United States House of Representatives, who presides over the chamber, is elected by the members of the House, and is therefore traditionally the leader of the House Democratic Caucus or the House Republican Conference, whichever of the two Congressional Membership Organizations has more voting members.

Elections for representatives are held in every even-numbered year, and on Election Day, the first Tuesday after the first Monday in November. By law, Representatives must be elected from single-member districts by plurality voting.

The Senate

The composition and powers of the Senate are established in Article I of the U.S. Constitution. Each state is represented by two senators, regardless of population. Senators serve staggered six-year terms. The chamber of the United States Senate is located in the north wing of the Capitol, in Washington, D.C., the national capital.

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U.S. Capitol: This is an image of the western front of the United States Capitol. The Neoclassical style building is located in Washington, D.C., on top of Capitol Hill at the east end of the National Mall. The Capitol was designated a National Historic Landmark in 1960.

The Senate has several exclusive powers not granted to the House, including consenting to treaties as a precondition to their ratification. The Senate also confirms appointments of Cabinet secretaries, federal judges, other federal executive officials, military officers, regulatory officials, ambassadors, and other federal uniformed officers, as well as trial of federal officials impeached by the House. The Vice President of the United States is the ex officio President of the Senate, with authority to preside over the Senate’s sessions, although he can vote only to break a tie.

Senators are regarded as more prominent political figures than members of the House of Representatives because there are fewer of them, and because they serve for longer terms, usually represent larger constituencies.

The Executive Branch

The executive power in the government is vested in the President and Vice-President of the United States, the Cabinet and federal agencies.

Learning Objectives

Summarize the structure of the Executive Branch

Key Takeaways

Key Points

  • The Executive Branch of government is responsible for administering, implementing and enforcing the laws passed by the Legislative Branch of government.
  • The President is both the head of state and government, as well as the military commander-in-chief and chief diplomat. The President is indirectly elected by the people through the Electoral College to a four-year term, and is one of only two nationally elected federal officers.
  • If the President has already served two years or more of a term to which some other person was elected, he may only serve one more additional four-year term.
  • The Vice President is the second-highest executive official in rank of the government. As first in the U.S. presidential line of succession, the Vice President becomes President upon the death, resignation, or removal of the President. The Vice-President is also the President of the Senate.
  • The Cabinet of the United States is composed of the most senior appointed officers of the executive branch of the federal government of the United States, who are generally the heads of the federal executive departments.
  • The day-to-day enforcement and administration of federal laws is in the hands of the various federal executive departments. The majority of the independent agencies of the United States government are also classified as executive agencies.

Key Terms

  • executive branch: The branch of government that oversees the carrying out of the laws, led by the president.
  • president of the united states: As head of the Executive Branch of government, The President is both the head of state and government, as well as the military commander-in-chief and chief diplomat.
  • cabinet of the united states: The Cabinet of the United States is composed of the most senior appointed officers of the executive branch of the federal government of the United States, who are generally the heads of the federal executive departments.

Introduction

The executive power in the federal government is vested in the President of the United States, although power is often delegated to the Cabinet members and other officials. The head of the Executive Branch is the President of the United States. The President and the Vice President are elected every four years; they are elected as running mates by the Electoral College. Each state, as well as the District of Columbia, is allocated a number of seats in the Electoral College based on its representation in both houses of Congress. The President is limited to a maximum of two four-year terms. If the President has already served two years or more of a term to which some other person was elected, he may only serve one more additional four-year term.

President of the United States

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President Barack Obama: Official photographic portrait of US President Barack Obama (born 4 August 1961; assumed office 20 January 2009). Barack Obama’s presidential campaigns were successful partly as a result of youth participation.

The executive branch consists of the president and those to whom the President’s powers are delegated. The President is both the head of state and government, as well as the military commander-in-chief and chief diplomat. The President, according to the Constitution, must “take care that the laws be faithfully executed”, and “preserve, protect and defend the Constitution. ” The President presides over the executive branch of the federal government, an organization numbering about 5 million people, including 1 million active-duty military personnel and 600,000 postal service employees.

The people indirectly elect the President to a four-year term through the Electoral College; the president is one of only two nationally elected federal officers. The Twenty-second Amendment, adopted in 1951, prohibits anyone from being elected to the presidency for a third full term. It also prohibits anyone who has previously served as President for more than two years of another person’s presidential term, or who has acted as President, from being elected to the presidency more than once. In all, 43 individuals have served 55 four-year terms. On January 20, 2009, Barack Obama became our 44th President and current President.

In the United States, a person must be at least 35 to be President or Vice President, 30 to be a Senator, or 25 to be a Representative, as specified in the U.S. Constitution. Most states in the U.S. also have age requirements for the offices of Governor, State Senator, and State Representative. Some states have a minimum age requirement to hold any elected office (usually 21 or 18). Most states will not allow ballot access to people who do not meet the age requirement of the office they are running for.Eligibility Criteria

Article II, Section 1, Clause 5 of the Constitution sets the requirements to hold office. A president must:

  • be a natural-born citizen of the United States;
  • be at least thirty-five years old;
  • have been a permanent resident in the United States for at least fourteen years.
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Official Portrait of Joe Biden: Official portrait of Vice President of the United States Joe Biden.

Vice-President of the United States

The vice president is the second-highest ranked executive official of the government. As first in the line of presidential succession in the U.S., the Vice President becomes President upon the death, resignation, or removal of the President. Transitions of this type have happened nine times in U.S. history.

Under the Constitution, the Vice President is President of the Senate. By virtue of this role, he or she is the head of the Senate. In that capacity, the Vice President is allowed to vote in the Senate, but only when necessary to break a tie vote. While the Vice President’s only constitutionally prescribed functions, aside from presidential succession, relate to his or her role as President of the Senate, the office is now commonly viewed as a member of the executive branch of the federal government. The current Vice President is Joseph Biden.

Cabinet of the United States

The Cabinet of the United States is composed of the most senior appointed officers of the executive branch of the federal government of the United States, who are generally the heads of the federal executive departments. All Cabinet officers are nominated by the President and then presented to the Senate for confirmation or rejection by a simple majority. If they are approved, they are sworn in and then begin their duties.Cabinet of the United States

Aside from the Attorney General, and formerly the Postmaster General, they all receive the title of Secretary. Members of the Cabinet serve at the pleasure of the President, which means that the President may dismiss them or reappoint them (to other posts) at will. Positions in the Cabinet include Secretary of State, Secretary of Treasury, Secretary of Defense, Attorney General.

The Judicial Branch

Organized under the U.S. Constitution, the Supreme Court and federal courts make up the judiciary branch of the United States.

Learning Objectives

Identify the different courts that comprise the Judicial Branch and their functions

Key Takeaways

Key Points

  • The judiciary is the system of courts that interprets and applies the law in the name of the state. Under the doctrine of the separation of powers, the judiciary generally does not make law or enforce law, but rather interprets law and applies it to the facts of each case.
  • The United States federal courts make up the judiciary branch of federal government of the United States. This branch includes the Supreme Court, the circuit courts, and federal courts.
  • The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all federal courts and state court cases involving issues of federal law.
  • The Supreme Court consists of a chief justice and eight associate justices who are nominated by the President and confirmed by the United States Senate. Once appointed, justices have life tenure unless they resign, retire, or are removed after impeachment.
  • The United States courts of appeals are the intermediate appellate courts of the United States federal court system. A court of appeals decides appeals from the district courts within its federal judicial circuit. There currently are thirteen United States courts of appeals.
  • The United States district courts are the general trial courts of the United States federal court system. Both civil and criminal cases are filed in the district court. There is at least one judicial district for each state, the District of Columbia, and Puerto Rico.

Key Terms

  • court of appeals: A court of appeals decides appeals from the district courts within its federal judicial circuit. There currently are thirteen United States courts of appeals.
  • Supreme Court of the United States: The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all federal courts and over state court cases involving issues of federal law.
  • united states federal courts: The United States federal courts make up the judiciary branch of federal government of the United States. This includes the Supreme Court, the circuit courts, and the federal courts.

Introduction

The judiciary is the system of courts that interprets and applies the law in the name of the state. Under the doctrine of the separation of powers, the judiciary generally does not make law or enforce law, but rather it interprets law and applies it to the facts of each case. The judiciary also provides a mechanism for the resolution of disputes. The judiciary branch is often tasked with ensuring equal justice under law. It consists of a court of final appeal in addition to lower courts.

Judiciary Branch of the United States

The United States federal courts make up the judiciary branch of federal government. These courts are organized under the United States Constitution and laws of the federal government. In the United States court system, the Supreme Court is the final authority on the interpretation of the federal Constitution as well as the constitutionality of the various state laws. In the US federal court system, federal cases are tried in trial courts, known as the US district courts, followed by appellate courts and then the Supreme Court. State courts, which try 98% of litigation, are subject to the jurisdiction of each state. The judicial system begins with a court of first instance, is appealed to an appellate court, and then ends at the court of last resort.

Supreme Court of the United States

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The U.S. Supreme Court: The United States Supreme Court, the highest court in the United States, in 2010. Top row (left to right): Associate Justice Sonia Sotomayor, Associate Justice Stephen G. Breyer, Associate Justice Samuel A. Alito, and Associate Justice Elena Kagan. Bottom row (left to right): Associate Justice Clarence Thomas, Associate Justice Antonin Scalia, Chief Justice John G. Roberts, Associate Justice Anthony Kennedy, and Associate Justice Ruth Bader Ginsburg.

The U.S. Supreme Court is the highest court in the United States. It has ultimate appellate jurisdiction over all federal courts and over state court cases involving issues of federal law. It also has original jurisdiction over a small range of cases. The Court consists of a chief justice and eight associate justices who are nominated by the President and confirmed by the United States Senate. Once appointed, justices have life tenure unless they resign, retire, or are removed after impeachment.

Under the U.S. Constitution, the President of the United States appoints justices “by and with the advice and consent of the Senate. ” Most presidents nominate candidates who broadly share their ideological views, although a justice’s decisions may end up being contrary to a president’s expectations. Because the Constitution sets no qualifications for service as a justice, a president may nominate anyone to serve, subject to Senate confirmation.

Before 1981, the approval process of justices was usually rapid. From the Truman through Nixon administrations, justices were typically approved within one month. From the Reagan administration through the present, the process has taken much longer. Some believe this is because Congress views justices as playing a more political role than in the past.Under the U.S. Constitution, the President of the United States appoints justices “by and with the advice and consent of the Senate. ” Most presidents nominate candidates who broadly share their ideological views, although a justice’s decisions may end up being contrary to a president’s expectations. Because the Constitution sets no qualifications for service as a justice, a president may nominate anyone to serve, subject to Senate confirmation.

United States Court of Appeals

The United States courts of appeals are the intermediate appellate courts of the United States federal court system. A court of appeals decides appeals from the district courts within its federal judicial circuit, and in some instances from other designated federal courts and administrative agencies. The United States Courts of Appeals are considered among the most powerful and influential courts in the United States. Because of their ability to set legal precedent in regions that cover millions of people, the United States Courts of Appeals have strong policy influence on U.S. law.

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U.S Court of Appeals and District Courts map: Map of the geographic boundaries of the various United States Courts of Appeals and United States District Courts.

There currently are thirteen United States courts of appeals. The eleven “numbered” circuits and the D.C. Circuit are geographically defined. The thirteenth court of appeals is the United States Court of Appeals for the Federal Circuit, which has nationwide jurisdiction over certain appeals based on their subject matter. Currently, there are 179 judges on the United States Courts of Appeals authorized by Congress and Article III of the U.S. Constitution. These judges are nominated by the President of the United States, and if confirmed by the United States Senate, have lifetime tenure. They earn an annual salary of $184,500.

United States District Courts

The United States district courts are the general trial courts of the United States federal court system. Both civil and criminal cases are filed in the district court, which is a court of law, equity, and admiralty. There is a United States bankruptcy court associated with each United States district court. Each federal judicial district has at least one courthouse, and many districts have more than one. In contrast to the Supreme Court, which was established by Article III of the Constitution, the district courts were established by Congress. There is at least one judicial district for each state, the District of Columbia, and Puerto Rico. There are eighty-nine districts in the fifty states, with a total of ninety-four districts including territories.

Federalism

Federalism in the United States is the evolving relationship between U.S. state governments and the federal government of the United States.

Learning Objectives

Summarize the history of federalism in the United States

Key Takeaways

Key Points

  • Federalism refers to a system of government in which sovereignty is constitutionally divided between a central governing authority and constituent political units.
  • Federalism in the United States is the evolving relationship between U.S. state governments and the federal government of the United States. Since the end of the American Civil War, power shifted away from the states and towards the national government.
  • The Federalist Papers were a compilation of 85 anonymous essays published by Alexander Hamilton and James Madison to convince the people of the state to vote for ratification.
  • The Tenth Amendment states the Constitution ‘s principle of federalism by providing that powers not granted to the federal government nor prohibited to the States by the Constitution are reserved to the States or the people.
  • Dual federalism is a theory of federal constitutional law in the United States according to which governmental power is divided into two separate spheres. One sphere of power belongs to the federal government of the United States while the other severally belongs to each constituent state.
  • New Federalism, which is characterized by a gradual return of power to the states, was initiated by President Ronald Reagan (1981–1989) with his “devolution revolution” in the early 1980s and lasted until 2001.

Key Terms

  • the tenth amendment: The Tenth Amendment states the Constitution’s principle of federalism by providing that powers not granted to the federal government nor prohibited to the States by the Constitution are reserved to the States or the people.
  • federalism: A political concept in which a group of members are bound together by covenant with a governing representative head.
  • dual federalism: Dual federalism is a theory of federal constitutional law in the United States according to which governmental power is divided into two separate spheres. One sphere of power belongs to the federal government of the United States while the other severally belongs to each constituent state.

Introduction

Federalism is a political concept in which a group of members are bound together by covenant with a governing representative head. The term “federalism” is also used to describe a system of government in which sovereignty is constitutionally divided between a central governing authority and constituent political units. Federalism is a system based upon democratic rules and institutions in which the power to govern is shared between national and state governments, creating what is often called a federation. Proponents are often called federalists.

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Federalism around the World: A map showing countries currently organized along federalist principles in green.

History of Federalism in the United States

Federalism in the United States is the evolving relationship between U.S. state governments and the federal government of the United States. Since the founding of the country, and particularly with the end of the American Civil War, power shifted away from the states and toward the national government.

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Federalism in the United States: The United States is composed of fifty self-governing states and several territories.

Originally, federalism was the most influential political movement arising out of discontent with the Articles of Confederation, which focused on limiting the authority of the federal government. In 1787, fifty-five delegates met at a Constitutional convention in Philadelphia and generated ideas for a bicameral legislature, balanced representation of small and large states, and checks and balances. Once the convention concluded and released the Constitution for public consumption, the Federalist movement became focused on getting the Constitution ratified.

The most forceful defense of the new Constitution was The Federalist Papers, a compilation of eighty-five anonymous essays published in New York City to convince the people of the state to vote for ratification. These articles, written by Alexander Hamilton and James Madison, with some contributed by John Jay, examined the benefits of the new, proposed Constitution, and analyzed the political theory and function behind the various articles of the Constitution. The Federalist Papers remains one of the most important documents in American political science.

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The Federalist Papers: Title page of the first printing of the Federalist Papers.

In 1789, Congress submitted twelve articles of amendment to the states. Ten of these articles, written by Madison, achieved passage on December 15, 1791 and became the Bill of Rights. The Tenth Amendment set the guidelines for federalism in the United States. The Tenth Amendment states the Constitution’s principle of federalism by providing that powers not granted to the federal government nor prohibited to the States by the Constitution are reserved to the States or the people.

Dual Federalism, Cooperative Federalism and New Federalism

Dual federalism is a theory of federal constitutional law in the United States according to which governmental power is divided into two separate spheres. One sphere of power belongs to the federal government of the United States while the other severally belongs to each constituent state. Each sphere is mutually equal, exclusive, and limiting upon the other sphere, and each entity is supreme within its own sphere. The theory originated within the Jacksonian democracy movement as backlash against the mercantilist American System and supported centralization of government under the Adams administration during the 1820s. With an emphasis on local autonomy and individual liberty, the theory served to unite the principles held by multiple sectional interests: the republican principles of northerners, the pro-slavery ideology of southern planters, and the laissez-faire entrepreneurialism of western interests.

The Great Depression marked an abrupt end to Dual Federalism and a dramatic shift to a strong national government. President Franklin D. Roosevelt’s New Deal policies reached into the lives of U.S. citizens like no other federal measure had. The national government was forced to cooperate with all levels of government to implement the New Deal policies; local government earned an equal standing with the other layers, as the federal government relied on political machines at a city level to bypass state legislatures. This became known as Cooperative Federalism.

Another movement calling itself “New Federalism” appeared in the late 20th century and early 21st century. New Federalism, which is characterized by a gradual return of power to the states, was initiated by President Ronald Reagan (1981–1989) with his “devolution revolution” in the early 1980s and lasted until 2001.. Previously, the federal government had granted money to the states categorically, limiting the states to use this funding for specific programs. Reagan’s administration, however, introduced a practice of giving block grants, freeing state governments to spend the money at their own discretion. New Federalism is sometimes called “states’ rights”, although its proponents usually eschew the latter term because of its associations with Jim Crow and segregation.

Constitutional Limits

The United States adheres to the principles of a constitutionally limited government in the three branches of government.

Learning Objectives

Compare and contrast the variation of constitutional limits in democracies across the world

Key Takeaways

Key Points

  • A constitutionally limited government is a system of government that is bound to certain principles of action by a state constitution.
  • In the United States Constitution, several articles and sections describe and specify the limits set upon the federal and state governments in the Union.
  • The Supreme Court has developed a system of doctrine and practice that self-limits is power of judicial review. The Court controls almost all of its business by choosing what cases to consider, writs of certiorari.
  • Codified constitutions are often the product of some dramatic political change, such as a revolution. States that have codified constitutions normally give the constitution supremacy over ordinary statute law.
  • Uncodified constitutions are the product of an “evolution” of laws and conventions over centuries. Examples of uncodified constitutions include England and New Zealand.

Key Terms

  • writs of certiorari: In the United States, the writ of certiorari is most often seen as the writ that the Supreme Court of the United States issues to a lower court to review the lower court’s judgment for legal error (reversible error) and review where no appeal is available as a matter of right.
  • twenty-fifth amendment: The Twenty-fifth Amendment (Amendment XXV) to the United States Constitution deals with succession to the Presidency and establishes procedures both for filling a vacancy in the office of the Vice President, as well as responding to Presidential disabilities.
  • constitutionally limited government: A constitutionally limited government is a system of government that is bound to certain principles of action by a state constitution. The United States of America, a constitutionally limited republic, is an example of a constitutionally limited government.

Introduction

A constitutionally limited government is a system of government that is bound to certain principles of action by a state constitution. This system of government is dialectically opposed to pragmatism, on the basis that no state action can be made that conflicts with its constitution, regardless of the action’s possible consequences. An example of a constitutionally limited government is the United States of America, which is a constitutionally limited republic. Correspondingly, constitutionalism has a variety of meanings. Most generally, it is “a complex of ideas, attitudes, and patterns of behavior elaborating the principle that the authority of government derives from and is limited by a body of fundamental law.” In the United States Constitution, several articles and sections describe and specify the limits set upon the federal and state governments in the Union.

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United States Constitution: “We the People”, as it appears in an original copy of the Constitution.

Legislature

Article I, Section 9 lists eight specific limits on congressional power. It includes sections such as “No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken” and “No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State. ”

Executive

Article II, Section 1 creates the presidency. The section vests the executive power in a President. The President and Vice President serve identical four-year terms. This section originally set the method of electing the President and Vice President, but this method has been superseded by the Twelfth Amendment. More importantly, Section 2 grants and limits the president’s appointment powers: “The president may make treaties, with the advice and consent of the Senate, provided two-thirds of the senators who are present agree;” “With the advice and consent of the Senate, the President may appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States whose appointments are not otherwise described in the Constitution;” and “Congress may give the power to appoint lower officers to the President alone, to the courts, or to the heads of departments. ” In addition, the Twenty-fifth Amendment limits the presidency to two terms.

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Twenty-Fifth Amendment: Joint Resolution Proposing the Twenty-fifth Amendment to the United States Constitution, page 1.

Self Restraint

The Supreme Court has developed a system of doctrine and practice that self-limits is power of judicial review. The Court controls almost all of its business by choosing what cases to consider, writs of certiorari. In this way it can avoid expressing an opinion if it sees an issue is currently embarrassing or difficult. The Supreme Court limits itself by defining for itself what is a “justiciable question. ” First, the Court is fairly consistent in refusing to make any “advisory opinions” in advance of actual cases. Second, “friendly suits” between those of the same legal interest are not considered. Third, the Court requires a “personal interest,” not one generally held, and a legally protected right must be immediately threatened by government action. Cases are not taken up if the litigant has no standing to sue. Having the money to sue or being injured by government action alone are not enough.

Codified and Uncodified Constitutions

A constitution is a set of fundamental principles or established precedents according to which a state or other organization is governed. These rules together make up, i.e. constitute, what the entity is. When these principles are written down into a single document or set of legal documents, those documents may be said to embody a written constitution; if they are written down in a single comprehensive document, it is said to embody a codified constitution.

Codified constitutions are often the product of some dramatic political change, such as a revolution. States that have codified constitutions normally give the constitution supremacy over ordinary statute law. Some constitutions are largely, but not wholly, codified. As of 2013, only two sovereign states have uncodified constitutions, namely New Zealand and the United Kingdom. Uncodified constitutions are the product of an “evolution” of laws and conventions over centuries. By contrast to codified constitutions (in the Westminster System that originated in England), uncodified constitutions include written sources.

Limited Government

In a limited government, the power of government to intervene in the exercise of civil liberties is restricted by constitutional law.

Learning Objectives

Describe the particular species of limited government operative in the United States’ federal system.

Key Takeaways

Key Points

  • Limited government is a principle of classical liberalism, free market libertarianism, and some tendencies of liberalism and conservatism in the United States.
  • A constitutionally limited government is a system of government that is bound to certain principles of action by a state constitution. The United States of America, a constitutionally limited republic, is an example of a constitutionally limited government.
  • In the United States, the idea of limited government originally implied the notion of a separation of powers and the system of checks and balances promoted by the U.S. Constitution.
  • As part of the Bill of the Rights, the Ninth Amendment and the Tenth Amendment summarily spelled out the principle of limited government. Together, these amendments clarify the differences between the enumerated rights of the people versus the expressly delegated powers of the federal government.
  • The Ninth Amendment codified that the rights of the people do not have to be expressly written in the Constitution to still be retained by the people. The Tenth Amendment codified that any delegated powers of the federal government are expressly delegated specifically by the Constitution.
  • “Limited government” stands in contrast to the doctrine of the Divine Right of Kings. Under that doctrine, the king, and by extension his entire government, held unlimited sovereignty over its subjects. Limited government exists where some effective limits restrict governmental power.

Key Terms

  • divine right of kings: A political and religious doctrine of royal and political legitimacy that asserts that a monarch is subject to no earthly authority, deriving the right to rule directly from the will of God.
  • limited government: In a limited government, the power of government to intervene in the exercise of civil liberties is restricted by law, usually in a written constitution. It is a principle of classical liberalism, free market libertarianism, and some tendencies of liberalism and conservatism in the United States.
  • constitutionally limited government: A constitutionally limited government is a system of government that is bound to certain principles of action by a state constitution. The United States of America, a constitutionally limited republic, is an example of a constitutionally limited government.

Introduction

In a limited government, the power of government to intervene in the exercise of civil liberties is restricted by law, usually in a written constitution. It is a principle of classical liberalism, free market libertarianism, and some tendencies of liberalism and conservatism in the United States. The theory of limited government contrasts, for example, with the idea that government should intervene to promote equality and opportunity through regulation of property and wealth redistribution.

Limited Government in the United States

A constitutionally limited government is a system of government that is bound to certain principles of action by a state constitution. This system of government is dialectically opposed to pragmatism, on the basis that no state action can be made that conflicts with its constitution, regardless of the action’s possible consequence. The United States of America, a constitutionally limited republic, is an example of a constitutionally limited government.

In the United States, as discussed in the Federalist Papers, the idea of limited government originally implied the notion of a separation of powers and the system of checks and balances promoted by the U.S. Constitution. This understanding of limited government maintains that government is internally limited by the system of checks and balances (as well as the Constitution itself, which can be amended), and externally through the republican principle of electoral accountability. Such an understanding of limited government, as explained by James Madison, does not place arbitrary and ideologically biased parameters on the actions of a government, thus allowing government to change as time demands.

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The Federalist Papers: Title page of the first printing of the Federalist Papers.

Ninth and Tenth Amendments

In 1789, James Madison presented to the First United States Congress a series of ten amendments to the United States Constitution, today known as the Bill of Rights. After enumerating specific rights retained by the people in the first eight amendments, the Ninth Amendment and the Tenth Amendment summarily spelled out the principle of limited government. Together, these two last amendments clarify the differences between the enumerated rights of the people versus the expressly codified delegated powers of the federal government. The Ninth Amendment codified that the rights of the people do not have to be expressly written in the Constitution to still be retained by the people. Reversely, though, the Tenth Amendment codified that any delegated powers of the federal government are only authorized to be performed so long as such delegated powers are expressly delegated to the federal government specifically by the Constitution. Government can do some things and not others.

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Bill of Rights: The First Amendment rights of free speech, freedom of association, and freedom of petition protect lobbying, including grassroots lobbying.

The Constitution limits the power of the government in several ways. It prohibits the government from directly interfering with certain key areas: conscience, expression, and association. Other actions are forbidden to the federal government and are reserved to state or local governments.

Differences with Other Doctrines

“Limited government” stands in contrast to the doctrine of the Divine Right of Kings, which states that the king, and by extension his entire government, held unlimited sovereignty over its subjects. Limited government exists where some effective limits restrict governmental power.

In Western civilization, the Magna Carta stands as the early exemplar of a document limiting the reach of the king’s sovereignty. While its limits protected only a small portion of the English population, it did state that the king’s barons possessed rights that they could assert against the king. The English Bill of Rights, associated with the Glorious Revolution of 1688, established limits of royal sovereignty. In contrast, and as stated above, the United States Constitution of 1787 created a government limited by the terms of the written document itself, by the election of the legislators and the executive by the people, and by the checks and balances through which the three branches of government limit each other’s power.

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John of England signs Magna Carta, published ca. 1902: John of England signs Magna Carta. Illustration from Cassell’s History of England (1902).

Separation of Powers

Separation of powers is a doctrine in which each of the three branches of government have defined powers independent of each other.

Learning Objectives

Compare and contrast the three branches of government

Key Takeaways

Key Points

  • Separation of powers is a political doctrine originating in the writings of Montesquieu in The Spirit of the Laws in which he urges for a constitutional government with three separate branches of government.
  • Congress has the sole power to legislate for the United States. Under the nondelegation doctrine, Congress may not delegate its lawmaking responsibilities to any other agency.
  • The Constitution empowers the president to ensure the faithful execution of the laws made by Congress. Congress may itself terminate such appointments by impeachment, and restrict the president.
  • Judicial power —the power to decide cases and controversies—is vested in the Supreme Court and inferior courts established by Congress. The judges must be appointed by the president with the advice and consent of the Senate.

Key Terms

  • separation of powers: A theoretical model for governance, common in democratic states, which features the division of sovereign power into at least three (but sometimes up to six) organs of state in order to forestall tyranny, by preventing the acquisition of a monopoly of power by a monarch or oligarchy.
  • judicial power: Judicial power—the power to decide cases and controversies—is vested in the Supreme Court and inferior courts established by Congress.

Introduction

Separation of powers is a political doctrine originating from the writings of Montesquieu in The Spirit of the Laws in which he urges for a constitutional government with three separate branches of government. Each of the three branches would have defined powers to check the powers of the other branches. This idea was called separation of powers. This philosophy heavily influenced the writing of the United States Constitution, according to which the legislative, executive, and judicial branches of the United States government are kept distinct in order to prevent abuse of power. This United States form of separation of powers is associated with a system of checks and balances.

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Montesquieu: Charles de Secondat, Baron de Montesquieu, who urged for a constitutional government with three separate branches of government.

Legislative Power

Congress has the sole power to legislate in the United States. Under the nondelegation doctrine, Congress may not delegate its lawmaking responsibilities to any other agency. One of the earliest cases involving the exact limits of non-delegation was Wayman v. Southard (1825). Congress had delegated to the courts the power to prescribe judicial procedure, and it was contended that in doing so Congress had unconstitutionally clothed the judiciary with legislative powers. While Chief Justice John Marshall conceded that the determination of rules of procedure was a legislative function, he distinguished between “important” subjects and mere details. Marshall wrote that “a general provision may be made, and power given to those who are to act under such general provisions, to fill up the details. ”

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Portrait of John Marshall by Henry Inman (1832): Henry Inman painted his original portrait of Chief Justice John Marshall in September 1831, when the jurist sat for Inman in Philadelphia. This painting is a copy of Inman’s original that he made in 1832 for an engraver. John Marshall bought the painting for his daughter who passed it to her daughters. Marshall’s granddaughters lent the portrait to the Virginia State Library in 1874 and the surviving granddaughter bequeathed it to the Library in 1920.

Executive Power

Executive power is vested, with exceptions and qualifications, in the President. By law, the president becomes the Commander in Chief of the Army, Navy, and Militia of several states when called into service, and has power to make treaties and appointments to office. The Constitution empowers the president to ensure the faithful execution of the laws made by Congress. Congress may terminate such appointments by impeachment, and restrict the president. The president’s responsibility is to execute instructions given by Congress. Bodies such as the War Claims Commission, the Interstate Commerce Commission, and the Federal Trade Commission all have direct Congressional oversight.

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The impeachment trial of President Clinton: Floor proceedings of the U.S. Senate, in session during the impeachment trial of Bill Clinton.

Judicial Power

Judicial power—the power to decide cases and controversies—is vested in the Supreme Court and inferior courts established by Congress. The judges must be appointed by the president with the advice and consent of the Senate, hold office during good behavior, and receive compensations that may not be diminished during their continuance in office. If a court’s judges do not have such attributes, the court may not exercise the judicial power of the United States. Courts exercising the judicial power are called “constitutional courts. ”

Alternative Model: The Parliamentary System

In a parliamentary system, the head of state is normally a different person from the head of government. This is in contrast to a presidential system in a democracy, where the head of state often is also the head of government, and most importantly: the executive branch does not derive its democratic legitimacy from the legislature. The Parliamentary system can be contrasted with a presidential system which operates under a stricter separation of powers, whereby the executive does not form part of, nor is appointed by, the parliamentary or legislative body. In such a system, congresses do not select or dismiss heads of governments, and governments cannot request an early dissolution as may be the case for parliaments. Since the legislative branch has more power over the executive branch in a parliamentary system, a notable amount of studies by political scientists have shown that parliamentary systems show lower levels of corruption than presidential systems of government.

Checks and Balances

To get the three branches of government to cooperate, a system of checks and balances was created to achieve a fair separation of powers.

Learning Objectives

Discuss the details of the Constitution’s system of checks and balances

Key Takeaways

Key Points

  • The concept of checks and balances is traced back to the political theory of Montesquieu.
  • The legislative branch of the United States checks and monitors the other two branches of government, the executive and judicial, through broad taxing and spending power, budgetting, declaration of war, ratification of treaties and confirmation of judges.
  • The President exercises a check over Congress through his power to veto bills. The president also appoints judges with the Senate ‘s advice and consent. He also has the power to issue pardons and reprieves, and as a Commander in Chief has the authority to command the U.S. armed forces.
  • Judicial review in the United States refers to the power of a court to review the constitutionality of a statute or treaty, or to review an administrative regulation for consistency with either a statute, a treaty, or the Constitution itself.

Key Terms

  • veto: A political right to disapprove of (and thereby stop) the process of a decision, a law, etc.
  • Judicial Review: Judicial review refers to the power of a court to review the constitutionality of a statute or treaty or to review an administrative regulation for consistency with a statute, a treaty, or the Constitution itself.
  • checks and balances: A system for multiple parties wherein each has some control over the actions of each of the others.

Introduction

To prevent one branch of government from becoming too powerful, protect the minority from the majority, and induce the branches to cooperate, governments often employ a system of “checks and balances. ” Like the concept of separation of powers, this idea is credited to Montesquieu. Through this system, each branch of government “checks,” or limits, the other two so that the power shared between them is balanced. An example of this is the president’s veto power: the president can limit Congress’s power by vetoing a bill. However, the legislative branch can overturn this veto with a two-thirds majority in both of the houses, thus maintaining the balance.

Legislative

The legislative branch of the United States checks and monitors the executive and judicial branches. The legislative passes bills, has broad taxing and spending power, controls the federal budget, and has power to borrow money on the credit of the United States. It has sole power to declare war, as well as to raise, support, and regulate the military. Further, the legislative branch is responsible for the ratification of treaties signed by the President and gives advice and consent to presidential appointments to the federal judiciary, federal executive departments, and other posts (Senate only). Lastly, the legislative has sole power of impeachment (House of Representatives) and trial of impeachments (Senate); it can also remove federal executive and judicial officers from office for high crimes and misdemeanors.

Executive

The President exercises a check over Congress through his power to veto bills, but Congress may override any veto by a two-thirds majority in each house. When the two houses of Congress cannot agree on a date for adjournment, the president may settle the dispute. Either house or both houses may be called into emergency session by the president. The Vice President serves as president of the Senate, but he may only vote to break a tie.

The president, as noted above, appoints judges with the Senate’s advice and consent. He also has the power to issue pardons and reprieves. Such pardons are not subject to confirmation by either the House of Representatives or the Senate, or even to acceptance by the recipient. Many pardons have been controversial. Critics argue that pardons have been used more often for the sake of political expediency than to correct judicial error. One of the more famous recent pardons was granted by President Gerald Ford to former President Richard Nixon on September 8, 1974, for official misconduct that gave rise to the Watergate scandal. Polls showed a majority of Americans disapproved of the pardon, and Ford’s public-approval ratings tumbled afterward.

The President is the civilian Commander in Chief of the Army and Navy of the United States. It is generally understood that he has the authority to command them to take appropriate military action in the event of a sudden crisis. However, only the Congress is explicitly granted the power to declare war, as well as to raise, fund, and maintain the armed forces. Congress also has the duty and authority to prescribe the laws and regulations under which the armed forces operate, such as the Uniform Code of Military Justice, and requires that all Generals and Admirals appointed by the president be confirmed by a majority vote of the Senate before they can assume their office.

Judiciary

Courts check both the executive branch and the legislative branch through judicial review. This concept is not written into the Constitution, but was envisioned by many of the Constitution’s Framers. Judicial review in the United States refers to the power of a court to review the constitutionality of a statute or treaty, or to review an administrative regulation for consistency with either a statute, a treaty, or the Constitution itself. The Supreme Court ‘s landmark decision on the issue of judicial review was Marbury v. Madison (1803, ), in which the Supreme Court ruled that the federal courts have the duty to review the constitutionality of acts of Congress and to declare them void when they are contrary to the Constitution. Marbury, written by Chief Justice John Marshall, was the first Supreme Court case to strike down an act of Congress as unconstitutional. Since that time, the federal courts have exercised the power of judicial review.

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Supreme Court: The Supreme Court holds the power to overturn laws and executive actions they deem unlawful or unconstitutional.

The judiciary also has involvement in the impeachment process of a president. The Chief Justice presides in the Senate during a president’s impeachment trial. The rules of the Senate, however, generally do not grant much authority to the presiding officer. Thus, the Chief Justice’s role in this regard is limited.