The Constitution
The Constitution
Separation of powers
Drawing upon Enlightenment theories as well as existing governments, including the British, the Framers of the Constitution designed a government that divided its various powers among 3 separate branches: executive, including the president, vice president, and the various departments now under the direction of the Cabinet; judicial, including the Supreme Court and layers of federal courts; and legislative, the two houses of Congress. Although it is common today to discuss the “3 co-equal branches of government,” when examining the breadth, depth, and specificity of the first 3 articles, and taking account the widespread distrust of powerful monarchs, it is not surprising that Congress has the greatest number of powers specifically enumerated in Article 1 Section 8, including the most consequential powers to declare war against foreign countries, levy taxes, appropriate and spend tax revenues, establish the federal court system, and impeach federal officials, including the president, members of Congress, and judges all the way up to the Supreme Court. The powers allotted to the president in Article 2, including appointing advisors, ambassadors and judges, all subject to Senate confirmation, and vetoing laws passed by Congress, and to the judicial branch in Article 3 are significant, but the authors of the Constitution were determined to not concentrate power in the hands of a potential tyrant who could ostensibly order federal judges to ignore duly passed laws and in the most extreme circumstances take the country to war singlehandedly.
Checks and balances
While the Constitution enumerates specific powers to different branches of the federal government, the Framers simultaneously established a system whereby each branch has limited means to prevent the other branches from accruing too much power and/or ignoring the other branches entirely. In terms of lawmaking and implementation, Congress has the sole authority to pass laws but the president may veto these laws; in most instances, outside of the last 10 days of a session of Congress, which lasts 2 years, Congress can override a presidential veto with a ⅔ majority in both houses. Federal courts may also rule that Congress has exceeded its authority and even declare specific laws unconstitutional; if the Supreme Court deems a law invalid and/or unconstitutional, Congress cannot immediately override or overrule this decision, but it can pass new legislation aimed at addressing, or perhaps circumventing, judicial review. As noted above, the courts can invalidate laws, partially or entirely, as well as rule that executive actions, whether directly by the president or by the different departments headed up by Cabinet secretaries, exceed their authority and/or are unlawful. Perhaps the ultimate check on exceeding one’s authority and/or criminality is the power of Congress to impeach and potentially remove federal officials, including other members of Congress, the president and vice president, and federal judges, including Supreme Court justices, from power. Impeachment proceedings must begin in the House of Representatives; if articles of impeachment are passed by a simple majority in the House of Representatives, the Senate then holds a hearing and can convict the impeached official with a ⅔ vote. When holding a presidential impeachment trial in the Senate, the Chief Justice of the Supreme Court presides. **Checks and balances **are essential to the American system of government.
Federalism
Not only is power dispersed throughout the national government, but the American system features local and state governments as well; these local and state governments exercise important powers and carry out critical functions including public safety and law enforcement, education, and health. The American reliance on federalism is another hallmark of the Constitution, but it does not guarantee that the national, state, and local governments will all work together harmoniously. Disputes frequently arise as these different levels of government may have different priorities and constituencies. Protections for federalism are enshrined in the 10th Amendment to the Constitution, but wording of the 10th Amendment means that many disputes must be settled in federal court.
Personal freedoms
As noted in the previous lesson, many of the critical “constitutionally protected” liberties that Americans cite today are not found in the text of the Constitution, but rather in the Bill of Rights, a product of the debates over ratification as well as historical examples including the English Bill of Rights and bills of rights contained in state constitutions.
The 1st Amendment enumerates the five fundamental freedoms of speech, religion, the press, peaceful assembly, and the right to lobby government officials to address problems and/or shift government policy.
First Amendment to the United States Constitution, 1791
While court battles continue over contemporary meanings of these five fundamental freedoms, the 2nd Amendment is also hotly contested today. Written when the United States did not maintain a standing army during peacetime, interpretations of the 2nd Amendment increasingly focus on individual ownership and carrying of firearms and knives.
Second Amendment to the United States Constitution, 1791
While there are currently 27 amendments to the US Constitution, the Bill of Rights contains the first 10 amendments, with the remaining 17 being adopted over the next 200 years, often with several amendments being ratified within the span of a few years and then decades passing before the adoption of subsequent amendments.
A pro-slavery compact?
Amongst the most contentious issues during the Constitutional Convention in 1787 was the question of whether slavery would be permitted and protected in the new American republic. Many of the delegates to the Constitutional Convention personally owned slaves and the later abolitionist movement was still in its relative infancy. Southern delegates adamantly demanded that slavery be constitutionally protected. Within the Constitution, slavery is not specifically mentioned, but there are several relevant provisions effectively enshrining the peculiar institution within the American legal system. The infamous ⅗ Compromise provided additional southern representation in the House of Representatives by counting every 5 slaves as 3 people for the purposes of population and apportionment in the House of Representatives. The Constitution also prohibited Congress from outlawing the importation of slaves for 20 years from the ratification of the Constitution, which Congress officially did in 1808. In Article IV of the Constitution, known as the Fugitive Slave Clause, states were required to return runaway slaves to their owners.