An Introduction to American Constitutionalism

An Introduction to American Constitutionalism

Author: Tomás Vera Ziccardi

From its origins, what nowadays we know as American society was extremely dynamic, to the point that by the late eighteenth century it had undergone through profound changes. These took place in the social, legal, economic, commercial and political aspects. Part of this can be understood through the adoption of a national constitution by the end of the aforementioned century. The new constitution would work as a guide for the State’s structure and social development of the young nation. In this paper we propose, on the one hand, to briefly discuss the progressive evolution that led to the adoption of the Constitution. On the other hand we will address the national constitution on what refers to its structure, scope, the articles and functioning of the State. Regarding the amendments, we shall evaluate the first ten, which constitute the so-called 'Bill of Rights'.

In 1620 the Pilgrims fleeing religious persecution in Britain from King James signed aboard the Mayflower the 'Mayflower Compact'. This document was of vital importance since it established by the will of a majority the basic rules of conduct and administration of the new settlers in the Americas. The document worked as a social contract. It was consistent with the ideas of European contractualism, where it was thought as essential the development of a social contract for the establishment of a legitimate community. In the previously mentioned agreement the Puritan leaders had a primary role, representatives of a structure that had extreme relevance back then: the family.

It should be denoted the influence of British parliamentarism. The Virginia Colony (the first one), founded in 1607 by the London Company, adopted a structure similar to what nowadays we know as House of Representatives. Its members belonged to the bourgeoisie. Soon this concept of representation expanded, resulting in the conformation of a ruling class. At the same time emerged the figure of the Governor, representative of the British crown in the colonies. He enforced legislation. Usually appointed by the European monarch, in some cases like it happened in Rhode Island, the Governor was designated by the local assembly. In order to understand the idea of political representatives we introduce an extract of the Mayflower Compact’s modern version: "[...] and combine ourselves together into a civil body politic [...]." Here we can appreciate the formation of a political body emanating from the civil will. Continuing with the textual quote: "[…] and by virtue hereof to enact, constitute, and frame, such just and equal laws, ordinances, acts, constitutions, and offices, from time to time, as shall be thought most meet and convenient for the general good of the colony; unto which we promise all due submission and obedience […]." In this second extract appear some concepts that will be the basis of American constitutionalism: the existence of equitable laws, obedience and respect (regarding the law), central authorities and finally the concept of 'common good'.

In 1620 the Mayflower Compact was signed. It is regarded as the first official document referring regulations and other relevant aspects of life in the colonies for the new settlers.

Image taken from Wikipedia.

The establishment of settlers brought the development of new concepts and values ​​over the years. So it was with institutions. From the early eighteenth century onwards begins to take place the idea of ​​bicameralism (which will also be relevant for the nation’s future constitutional structure). The freemen in the colonies began to elect members to the local assemblies. Thus acquiring value the concept of representation, which started what would eventually become the lower house or House of Representatives, precisely because they represented the interests of the freemen. Meanwhile, in several states, the Governor (generally designated by the crown) appointed the members of the council. This would later evolve into the concept of upper house or Senate. It represented the interests of those in power, mostly composed by large landowners and businessmen.

Recalling that except for counted exceptions the Governor was appointed by the monarch, we should take into account that he had the right to veto legislation emanating from the discussions at the assemblies. However, the system was quite different from what we know today. Not all the legislation came from the lower house. Some issues were strictly reserved for the executive or the upper house. Given the outlook of the executive and legislative branches in the colonies, it is relevant to observe the one regarding the judiciary branch. Justice was composed of judges appointed by the Governor. They usually exercised lifetime functions and were not commonly removed from office. Despite this, a concept that would later be reflected in the federal constitution started developing: independence of the Judicial Power from political authorities.

Population growth in the colonies & expansive economic development into different areas resulted in a more complex administration of the territories. Further legislation was developed, which granted considerable autonomy to the colonies in terms of internal management against London. By mid-century the locals were demanding greater participation in the decision-making process. After all, it was understandable. For example: if population grew there would be more labor to produce goods in the agricultural sector, some of that production would later be transferred to the external sector, i.e. trade. Given that this activity was regulated by the European authorities, we can appreciate the way in which the interests of the locals were affected. Thus they ended up claiming greater participation in the decision-making arena (in this case taxation). Thereafter the assembly progressively began gaining more control over the colony’s funds. Meanwhile, it expanded functions on topics submitted to the electoral system, the process of drafting laws and external conflicts management.

By the time the Boston Tea Rebellion (1773) took place, the result of the tax legislation unilaterally imposed from London had generated fierce opposition. Back then colonies already had a high degree of autonomy in various areas, while they began to develop institutions and a legal system with strong social roots. It was respected by everyone. Opposition to the legislation passed by a parliament that did not represent them or their interests began to increase. The locals sought to gain more participation in terms of legislation making. Consequent with this began to manifestly emerge claims for other issues, including the right to private property and freedom of assembly. Locals start to ensure the independence and adoption of autonomous representative bodies.

Some colonies started developing local assemblies in order to represent the interests of the freemen. Over time these assemblies began gaining more influence on issues such as legislation, trade and election of authorities. By the time of the revolution they became a central actor.

In 1775 Americans began their struggle for independence. It was by force given the monarchy’s refusal to grant concessions to their claims. The following year takes place the Virginia Declaration of Rights. It rapidly influenced the rest of the colonies. The ideals of independence and formation of a local supreme law exempted from British interference were strengthened. The War of Independence came to an end in 1783 with the Treaty of Paris. At the same time takes place the process of adoption of state constitutions. From then onwards consensus building will become increasingly necessary in order to adopt a constitution at the federal level involving all former colonies.

In 1787 the Philadelphia Constitutional Convention took place. A total of 55 representatives from 12 states (Rhode Island did not send delegates) were part of it. They sought to delineate the limits of what would become the United States of America under the new constitutional format. For the first time the idea of ​​a federation composed of thirteen states was established. The delegates represented the will of the states. This is where the idea of ​​a social contract emerges, given the establishment of a government decided by the people, with the intermediation of these representatives, through a written contract called National Constitution. It stated that for its entry into force the ratification of three quarters of the states was needed (9 out of 13). Here we can also appreciate the value of an old concept rooted in the American society: will of the majority. The high value demanded for ratification (three quarters) made it practically essential that the vast majority of states gave their internal approval. Consensus becomes another important element of the American constitutional structure. By 1788 a total of 10 states had ratified the Philadelphia Convention. Between 1789 and 1790 the remaining states would sign it, hence entering into force (the Federal Constitution) for all parties.

Let’s conceptualize some of the ideas mentioned above. One of the principles enshrined in the constitution was the one known as ‘due process’. It comes from English Common Law and puts strong emphasis on the need for respect from the state towards citizens’ rights in their judgment. The existence of courts throughout various stages is guaranteed in order to judge the actions of individuals, always respecting the legal framework that protects them. It was also stipulated the existence of individual freedom against arbitrary power. The Constitution establishes the separation of powers, mostly linked to Montesquieu’s ideas. It seeks to distance itself from absolutist regimes, ensuring the existence of separate and independent powers. Another important element is linked to the concepts of republicanism and states’ powers. They have their own constitutions and proceed with the election of representatives to the federal authority. Regarding the formation of the Legislative Power prior to the Constitution, we mentioned the existence of assemblies and councils. The evolution of these structures had inference in the establishment of a federal legislature. Large states, those with more inhabitants, advocated proportional representation while small states, those with fewer inhabitants, were leaning towards a more equitable representation. Combining elements of popular election and executive designations, a House of Representatives, where the states have dissimilar representation based on population and electoral bodies was established. On the other hand a Senate was set up.  Here states had equal representation. Initially their members were chosen by state assemblies.

The United States Constitution is considered the nation’s supreme law. It establishes an institutional framework for the governance structure at the federal level. This, in part, meant that certain issues related to individuals’ rights were partially excluded. Therefore, as will be discussed later, the Bill of Rights was created, which guarantees rights and freedoms of individuals. Once again we find direct linkage to the Anglo-Saxon idea that men have inherent rights just for their condition as such. The state’s structure protects them; however it is important to understand that the state is not the entity which grants them, because they are precedent. The Constitution is divided into seven articles. From these articles emerge different sections that deal with diverse topics. There we can find the legislative, executive & judiciary powers, the national legal system’s hierarchy and the process of constitutional ratification. What follows is an analysis of the constitution, article by article in order to internalize the reader with some of its most relevant aspects.

In 1787 the Philadelphia Convention gave place to the Constitution's development. It demanded the ratification of 9 out of 13 states. This was achieved during the following years. Between 1789 and 1790 all states had ratified the National Constitution. 

The Constitution has a Preamble that precedes the articles. It exposes the six main reasons that led to the adoption of the constitution. First is the concept of ‘union’. A strong central government sought to achieve a united nation. Secondly we have ‘justice’. It is based on a system of laws and courts in order to ensure fair treatment and equality towards the law. Thirdly we have ‘inner stability’. What follows is the concept of ‘common defense’, the federal state is in command of the national forces. ‘Welfare’ is also covered in the preamble. Finally the defense of ‘freedom’ constitutes one of the most relevant principles of the United States.

Article I refers to the nation’s legislative branch. According to Section 1, Congress has the legislative powers of the nation. The Congress is a bicameral body consisting of the House of Representatives and the Senate. In Section 2 the requirements to be elected representative are stipulated. In order to become a member of the House of Representative you must be over 25 years old, citizen of the United States for a minimum of 7 years and live in the state for which one is chosen. The representation is on behalf of the states and lasts 2 years. Voters must be US citizens, have residence on the state in which they vote (encompassing being a registered voter there) and having no less than 21 years. We have previously mentioned the inequitable representation among states in the House of Representatives. With a total of 435 members, established by act of Congress in 1929, states do not have equal representation. Some states such as California, the most populous, have 53 representatives, while others like Alaska have only one representative. This difference is based on population, causing variations in the determination of the number of representatives per state throughout the successive censuses. Just to have an overview, currently, the State of California has about 40,000,000 inhabitants, while Alaska has an estimate of 730,000. It is important to point out that the Constitution provides a minimum of 1 representative per state. Despite the differences in population density, all states must have representatives in the house.

Continuing with the analysis of the House of Representatives, the Chamber elects its own authorities, including the Speaker of the House. Currently this position is held by Mr. Paul Ryan, member of the Republican Party and representative for the State of Wisconsin. What happens when an elected member of the house dies, resigns or is expelled? The state’s Governor must call special elections in order to fill the position. This is different from other systems where in regular elections, people also vote for alternate candidates (as a counter effect mechanism against resignations). The American system is interesting because it allows people to choose a successor based on their momentary interests. An important element introduced by the Constitution is the power of impeachment in the House of Representatives. It has original jurisdiction to accuse a public servant for malfeasance regarding his or her duties. For such mechanism to advance a majority vote of the house is needed.

Section 3 of Article I establishes the duties and powers of the Senate of the United States of America. It is composed of 100 members. Each state has two representatives, hence establishing equal representation among states. The term of office is 6 years. The conditions for becoming an US Senator are: have a minimum of 30 years of age, have 9 years of exercise as US citizen and live in the state that is being represented. It is important to evaluate the following situation. As we mentioned at the beginning, formerly, members of what is now known as the upper house were appointed by the colonial Governor. Subsequently, and even during the first years of the Constitution’s state of being in force, senators were chosen by state legislatures, i.e. were elected by indirect vote. The citizens of each state elect their local representatives to the legislature. Later, these representatives elect the two senators who represent their respective states. In 1913 with the introduction of the Seventeenth Amendment, this was changed. Senators began to be directly elected by popular vote. In accordance to this development in the senators’ selection process, note that in order to have some control over the Senate and prevent it from having opposite interests to the people, the Constitution establishes as President of the Senate the Vice President (member of the Executive Branch). Currently this post is held by Vice President-in-Office, Mr. Joe Biden, member of the Democratic Party. As President of the Senate he presides over the sessions and has no vote (such as senators do) except in cases of a tie. Transferring to other attributions, the house elects its own authorities. An important position is the President pro tempore. He becomes in charge of the Senate when the Vice President is not available (for example due to a trip abroad representing the nation).

Article I of the Constitution makes reference to the Legislative Branch of the nation. It is composed of the House of Representatives and the Senate. This bicameral structure evolved from the colonial period.

In the picture we can appreciate the United States Capitol located in Washington D.C.

As the House of Representatives has the power of impeachment, it’s the Senate the body in charge of evaluating the submitted cases by the lower house. In order to evaluate a case of impeachment driven by the House of Representatives the presence of two thirds of the senators is required. To impeach a public servant two thirds of the Senators must vote positively. If the Senate is judging the President of the Nation by impeachment, the Vice President cannot be part of the trial, instead the Chief Justice (Judiciary Branch) must be in charge of the upper house. This is usually done to prevent the President’s partner (most of the time member of his same party) from having any kind of interference in the process that may end up affecting objectivity and independence. In 1868 President Andrew Johnson was subjected to impeachment by the House of Representatives, however the Senate did not find him guilty of charges. In that case Salmon Chase, the Chief Justice, presided over the trial in the Senate. Despite the aforementioned, in those cases where the Senate convicts an official, he or she immediately looses both his/her position and the right to exercise any other function in public administration. It should also be considered that if the person penalized for impeachment also broke the law, then he or she may be subjected to regular courts for trial. Of course this is after the impeachment process and removal. So, if for example the President of the United States is accused of impeachment by the lower house and then two thirds of the senators vote that he was negligent in his duties, hence corroborating the impeachment, the President is removed from office. Later, if he violated any federal law, he shall be ordinarily tried for his crimes.

According to Section 4 of Article I, Congress must meet at least once a year. Considering that although it currently meets more regularly, at the time the Constitution was passed things were a bit different. This was established in order to maintain the union of the legislature and pursue a constant update of the nation’s affairs. Usually the first session of the year is on the 3^rd of January. Linked to something previously mentioned, Section 5 provides that each house sets its own rules of procedure. Similarly, each house must judge its own members. For this, two thirds of the votes of the respective chamber are needed. Another attribute is to refuse the parliamentary inauguration of a new member if he or she does not meet the appropriate requirements for its membership. When Congress is in session, no house can meet for more than three days without the consent of the other. Generally it provides that the joint sessions should be in the same place. Today it is done in the Capitol (Washington D.C.), however it is relevant to note that the original Constitution did not set an specific city where Congress should be settled.

Regarding privileges & restrictions of congressmen, Section 6 details their offices, pensions, wages, taxes and official correspondence. The well-known ‘congressional immunity’ implies that a congressman cannot be arrested in session nor while they are on their way. Lawmakers cannot be judged for their words in speeches or debates within the scope of Congress. As to this, they have complete freedom of expression. Being a member of Congress implies the immediate resignation to any public office previously exercised, as it demands full-time dedication. This was also done in order to preserve full independence from any other government institutions.

The Senate of the United States shall be composed of two Senators from each state, chosen by the legislature thereof, for six years; and each Senator shall have one vote.

Article I, Section 3.

What mentioned above explains the distribution of power in the upper house. We say that the US Senate has an equitable distribution, something that differs from what happens in the lower house. Currently the chamber consists of 100 Senators.

Regarding the enactment of laws, the House of Representatives is in charge of tax legislation. Senate can only amend it. Any other law may arise from both chambers. Why does the House of Representative have this exclusivity on what refers to taxation laws? First and as already mentioned, formerly, only the House of Representatives was elected by direct popular vote, in order to have greater influence on taxation. Let us briefly recall the opposition movements in Boston and other colonies against the British legislation that affected the citizens’ interests. This led the developers of the Constitution, with the fresh memory in the aforementioned events, to grant exclusivity to the direct representatives of the people on what refers to tax matters. On the other hand, according to the expert in American constitutionalism, Mr. Floyd Gullop, by being elected for a period of two years (the members of the House of Representatives) against 6 years (senators), there would be more control over updating taxes on various issues. Being a period of rapid legal and commercial development (the beginning of the nineteenth century), more agile and updating mechanisms were needed.

As for the process of laws’ formation & enactment, Section 7 states that a law may arise based on a proposal from the House of Representatives. In the same house it will be discussed and if it is approved by a simple majority it passes to the Senate. There it will be debated and if a simple majority approves it, then it passes to the Executive. If the President of the nation signs it, the original proposal of the House of Representatives becomes law. If the President vetoes it, it returns to the chamber of origin, in this case the House of Representatives. Thereafter, the camera will take into account the objections made by the President (if there were any). After the debate a vote of two thirds of the members of the house is required in order to pass to the Senate, which will eventually debate it again. If two thirds of the chamber approves it, the bill becomes law without the President's signature. This parliamentary mechanism is called ‘overriding the President's veto’, which means that after being vetoed by the President, the proposal went back to its chamber of origin and was approved by both congressional bodies with two thirds of the votes. If the project cannot reach the approval of that number of members, it does not become law, so we say that a situation of ‘sustaining the President’s veto’ exists, which implies that the presidential veto inferred in the project, preventing it from once again going through the parliament’s regular channels. When we have an overriding situation, the parliamentarians’ votes shall be published in the Journal of the Chamber. In another situation, what happens in neither those cases where the project proceeds through both chambers and reaches the Executive Power however the President does not sign nor veto it? Within ten days the bill automatically becomes law without the President's signature.

Both chambers have committees that study and evaluate the bills regarding specific issues. Some of the existing committees are Agriculture, Budget, Energy, Foreign Affairs and Homeland Security. Orders, resolutions and votes of both Houses shall be sent to the President for his approval, just as with laws. If the President does not approve them, two thirds of the votes of both cameras allow override. This is done to prevent Congress from exceeding the executive through legislative mechanisms with different labels to laws or bills. The system seeks to limit other ways to achieve an objective that through normal procedures would be rejected. Some of the powers of Congress are: regulate trade, issue debt, pass legislation referred to foreigners’ naturalization, pass bills related to patents and copyrights, have the power to declare war, exercise control over the armed forces so that they are linked to the will of civil society, among others. Returning to what we mentioned in previous paragraphs, all this does not mean that Congress has full powers for enacting laws, which must go through the Executive Power (which has veto power). On the other hand, the constitution allows any citizen to demand revision of a law in case it is presumed of being unconstitutional.

Section 10 limits the powers denied to the states. These include the inability to sign treaties in a separate way, creating an alliance or establishing a confederation. States are prohibited from printing paper or releasing coins. On the other hand, without the consent of Congress, no state can set taxes to exports and imports on any type of goods. They have restrictions on war declaration and unilateral use of force, unless they have been subject to an invasion. Similarly to what happened on other issues, the founding fathers sought to deter states from acting outside the federal sphere in various issues such as trade, war and printing money. This power centralization was pursued under the jurisdiction of Congress, or as discussed below, the Executive Branch.

American constitutionalism led to the institution of the President. The Executive Power of the nation is separated from the legislature. Despite it exercises a wide variety of functions, it stands out due to the constitutional mechanism which stipulates that the executive is the law enforcing body. This means that the President ensures the implementation and enforcement of laws. He is in charge of signing or discarding projects from Congress. The President and Vice President are elected for a 4 years term (uninterrupted) with the possibility of immediate re-election (only once). They are elected by electors that represent the states’ votes. Together they make up the Electoral College. Each state has as many electors as representatives and senators in Congress. When voters in each state enter the polling station they vote for the electors nominated by the political party of their choice. The presidential candidates are not nominated in the primaries. They must first pass the primary election in order to be nominated by the National Convention of their respective parties (in charge of party delegates representing each state). Despite this, it is worth noting that the Constitution makes no reference to the figure of political parties. Going back to what we were explaining earlier, after the primary election process, the nomination of candidates for each parties, President and Vice President and the national campaign in the general election, voters choose the presidential candidate of their choice, however they are actually voting for the electors of his or her party. That happens in a given state. All the electoral votes from that state go to the most voted formula. Despite electors have freedom of choice, custom suggest that they vote for the candidates chosen by the people. There are only three states that require their electors to vote for the most voted candidate. On the other hand, in 47 states the local winner takes it all. If we recall the figures given during the parliamentary analysis we can develop an example that allows us to understand the concept of Electoral College. If we say that each state has a given number of electors that is similar to the total of their representatives in both houses of Congress, we find that the State of California has a total of 55 voters (53 representatives and 2 senators) and the State of Alaska has 3 electors (one representative and two senators). At the time of a presidential election, voters in California and Alaska will attend willing to elect their president. On the election day they will select their preferred option, which will give votes to the electors of the parties of the candidates elected. After completing the election in each state, the total votes will be counted and from there a winner will emerge. The party with the most votes gets the total voting power of the electors of the state. Therefore, if we consider the last presidential election (2012), Barack Obama won in California the total 55 electors’ votes to the Electoral College who subsequently elected the President. In the State of Alaska, where the Republican candidate Mitt Romney got the most votes, he won 3 out of 3 electors’ votes offered by the state. Subsequently the total electors’ votes in the Electoral College were counted. It is a clear example of an indirect election. It might be a bit difficult to understand in the first instance, however the mechanism is important because it shows where parties and candidates focus their presidential campaigns. In the example we mentioned, it is essential to win the State of California, which grants a total of 55 electors to the Electoral College, more than 15 times those granted by the State of Alaska. Returning to the 2012 campaign, we appreciate that Mr. Barack Obama won 332 electoral votes against 206 won by Mr. Mitt Romney. It now makes sense why it is vital to win states like California, Florida and Texas. These three grant more than 120 electoral votes, almost close to the number of electoral votes that Obama managed to pull apart from Romney. States like North Dakota, South Dakota and Montana give three electoral votes to the Electoral College.

The President of the United States is the maximum authority of the Executive Branch. So far there have been 44 US Presidents. The first one was George Washington, who began his mandate in 1789.

Image: Seal of the President of the United States.

When two candidates have an equal number of votes, the House of Representatives chooses one of them as President. If none of them has a majority, the chamber elects the President from among the five candidates with more votes. In this closed-doors election each state has one vote. The tiebreaker will be among a total of 50 votes. To begin with the vote, given the importance of it, two thirds of the states must give quorum. Then, the vote of the majority is required for being elected President. Three brief comments. One common question usually is: why the choice is not done in the Senate given that there are 100 representatives on an equal format among states? The answer might be easy for the reader. Former members of the Senate were elected by state legislatures, so in this given case the election of the President should be left to the House of Representatives. Secondly, unlike what happens in the French presidential elections, the United States does not have a ballotage system (or two-round system). What does this mean? Voters and electors of the Electoral College vote only once, hence the need for an accurate problem-solving system in case of a tie between two candidates or inability of one to obtain a majority. The final decision-making authority lies within Congress, specifically in the House of Representatives. Finally, the Twenty-fifth Amendment states that if the Vice President's post is free, the President may appoint a new one, but requires approval from a majority of both houses. Interestingly, this analysis shows that if the Vice President happens to occupy the office of President he may appoint someone to fill the position left behind. Basically the office of President could be occupied most of the time. However, if both are not available (for example resignation of the President, the Vice-President & further assumption that there is no time for appointing a successor because in the meantime he or she dies) the line of succession is as follows: Speaker of the House (House of Representatives), President pro tempore (US Senate) and members of the Cabinet in the order in which their departments were established (the ministries of Health, Education and Transport do not participate because their departments were created after the law of presidential succession).

The requirements for being President (and Vice President) are: being born in the United States, having over 35 years old and having lived in the US for at least 14 years. One of the limitations that stipulate the Constitution is the one referring to naturalized US citizens. Another interesting fact is that the salary of the President cannot be increased or decreased during his performance of duties. Constitutionally, the President who initiates functions must take the following oath: 'I do solemnly swear that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.' The oath referred to often takes place in Washington D.C. during the inauguration ceremony and is performed in front of the Chief Justice of the Supreme Court.

Section 2 of Article II stipulates the President’s powers and functions, among which are: commander in chief of the armed forces, formation of the cabinet, suspension or postponement of court rulings and granting of pardons (freeing convicted criminals, however it has to do with the disability of officers who have been removed by impeachment), sign treaties on behalf of the United States of America (further ratification by two thirds of the Senate needed), appoint ambassadors (also approval by the Senate needed), consuls, officials of the Supreme Court, and making other temporary appointments.

The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States; he may require opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices, and he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.

- Article II, Section 2.

The President’s duties stipulated in Section 3 are to report to Congress on the state of the union (commonly known as State of the Union Address), call sessions in Congress in case of national emergency, accept credentials from ambassadors and representatives of other nations, observe the correct execution of the United States’ laws and formalize them with his signature. The following section refers to the impeachment mechanism. The President and Vice President (as well as any other civil servant) may be subject to impeachment for treason, corruption or other allegations.

As the Executive Branch has under its responsibility the function of law-enforcement, the judicial one performs the so-called law-interpretation. Article III assesses the scope and functions of the Judiciary Branch of the United States. This attends cases linked to legislation. It is composed by the Supreme Court and other lower courts. The Constitution provides three regular and three special federal courts. The first three ones deal with civil and commercial cases. They are composed by the Supreme Court of Justice, courts of appeals and district courts. Regarding the latter ones, as they are ‘special’, they only serve in certain cases. They consist of the Court of Claims (decides whether claims against the United States are legitimate and the appropriate compensation mechanisms), the Court of Patent Appeals and the Court of Customs (with original jurisdiction in matters related to imports and exports).

The Constitution grants the Judicial Power the capability to review and interpret federal, state or local laws. Then it has the power to decide whether they are or not constitutional. However, the American process of constitutional review would begin to take shape in 1803 with the Marbury vs. Madison case. It is important to note that the Constitution provides that federal judges are appointed by the President with consent of the Senate. They hold office for life as far as they maintain a good behavior. Another attribute is that during their performance of duties they cannot have their salary reduced (this is not unique to the Executive Branch). As state officials, judges may be subject to impeachment. Between 2009 and 2010, two federal judges faced this process. In one case the judge was found guilty of taking bribes and not having a good behavior. The mechanism, as already learnt, is through Congress. The Judicial Branch is also in charge of cases related to treaties signed by the nation, those involving diplomats, international disputes linked to the federal state and disputes between two or more states. Similarly, the Supreme Court has original jurisdiction in cases involving diplomats and ministers of state. It is the last level of national appeal. The Constitution provides that the Supreme Court consists of 9 members. The Court’s main representative is the Chief Justice. It would be some sort of equivalent to the President given the fact that he is the highest authority of the supreme institution of the judiciary. Members of the Supreme Court appointed by the President maintain their position for life while proving good behavior. Why does the Constitution establish this? The original idea was that those judges secure in their work developed a good attitude, hence becoming less reluctant to corruption than judges that exercised functions for a reduced period of time. It was thought that a judge who would occupy the maximum court of the nation for a period of 5 or 10 years might have been more likely to be tempted into corruption or other unacceptable attitudes.

The Constitution establishes that crimes reserved to federal courts must be resolved by jury. Generally, the jury is composed of 12 members. In order to find a defendant guilty there must be unanimity in the vote, for both finding him/her guilty or innocent. By stipulating the functions and removal processes of state officials, in Section 3 of Article III the Constitution defines the concept of ‘betrayal’. It takes place when war is made against the United States and when nationals provide support to enemies. The accusation of treason must have a minimum of two witnesses in order to be valid. The treason committed can be declared in court. Congress is the body responsible for setting its penalty.

The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office. 

- Article III, Section 1.

Initially, the discussions over American federalism related to the relationship between states and the federal state. Article IV of the Constitution exposes the states’ powers. They recognize the laws and decisions of public authorities from other states. This was done in order to prevent those responsible of given actions in a state from fleeing to another one and receiving safeguard under a different legal framework. The process used is the extradition to the state of origin where the action was committed. Formal requests must be submitted for criminals’ extradition. No state enforces the criminal law of another. The Constitution stipulates that a citizen of any state has the same privileges and immunities in any other state. What does this mean? If there is a federal law or even if the Constitution provides certain rights and freedoms, they must be respected in all states of the union. No state can go against what a federal law or the Constitution establishes, because the principle of legal hierarchy places state laws and local authorities on a lower scale. We have previously evaluated the requirements for voting and being nominated for federal posts. It requires citizens of a state to meet certain years of residence as a condition for exercising the right to vote for local authorities. The Constitution provides the general framework and then state constitutions & local laws set the specific requirements.

The Constitution also allows new states to the union as far as Congress gives its approval. On the other hand, it sets limits for the creation of states. For a new state to be created in the territory of another pre-existing one they must have state legislature and congressional approval. The same happens with mergers between two or more states: approval of the respective legislatures and later the one made by Congress. Inferior laws cannot go against the federal Constitution. Something similar happens with guarantees granted by the union to the states, which include the system of republican government, protection in case of foreign invasion and actions against internal instability. Regarding the second, the armed forces of the nation may act in the territory of a state to protect it against an external invasion. As for the latter, similarly to what happened during the ‘60s and ‘70s, the federal government may dispose sending federal forces to the territory of a state in order to maintain internal stability.

Article V makes reference to constitutional amendments. It details the process to alter the government’s structure. The Constitution has two mechanisms for proposing amendments. The first one is reached by counting with two thirds of each house’s votes. This is what we call ‘Congressional Proposal’. The second one is achieved through two thirds of approval from state legislatures which ask Congress for the amendment and hence form a Constitutional Convention. Then, using any of these mechanisms, the proposed amendments are made. They must be ratified by three quarters of the state legislatures or by special conventions in three quarters of the states. Let’s remember what we discussed at the beginning of this paper: the Constitution’s ratification (between 1788 and 1790) needed the approval from three quarters of the states. The mechanism appears unchanged for amendments. The only difference is that the United States currently has 50 states, no longer 13. Recalling, if the majority mentioned in both cases is reached the amendments have equal legal force and become part of the Constitution. After ratification no specific act is required.

Linked to what we discussed in Article IV, the priority structure of sources is essential in order to understand the way in which the state works. Something similar is covered in Article VI, where the nation’s legal hierarchy is exposed. Literally: 'This Constitution, and the laws of the United States which shall be made in Pursuance thereof; and all treaties made, or which shall be made, under the Authority of the United States, shall be the Supreme Law of the Land.' It is clear that the Constitution, federal laws and treaties represent the supreme law of the nation. Regarding the relationship between federal laws and treaties they are equal in rank, however in case of conflict, prevails the most recent one. This mechanism is linked to the principle of lex posteriori derogate priori. Hierarchy continues with state constitutions, state laws and local laws.

Article VI also expresses two relevant issues. On the one hand it determines that debts incurred prior to the adoption of the Constitution are valid against the United States. Secondly, it defines the actions of oath. Senators, Representatives, members of state legislatures, executive officers and judicial officers of the federal state and the various states must take an oath to the Constitution. Finally it mentions that no religious oath can be requested as a precondition for any position in the United States government.

Article VI calls for all officers of the nation to take an oath in order to grant what the Constitution stipulates. The President also takes this oath.

In the image Barack Hussein Obama takes the oath as President of the United States and swears to preserve, protect and defend the Constitution.

The last article of the Constitution (Article VII) makes reference to the ratification process. It must be adopted by a minimum of nine states. This allows the Constitution’s entrance into force. The Constitution was ratified by nine states in 1788, being New Hampshire the last one. The first nine states in order of ratification were: Delaware, Pennsylvania, New Jersey, Georgia, Connecticut, Massachusetts, Maryland, South Carolina and New Hampshire. Subsequently did Virginia (1788), New York (1788), North Carolina (1789) and Rhode Island (1790). In Delaware, the first state to ratify it, the rate of support was 100% (the highest from among all states). Meanwhile, in Rhode Island ratification was achieved with 52% of support (the lowest of all states). It is commonly said that in order to ensure the acceptance of nine states for its entry into force, the process began in those states where it was sure that ratification would be easier and faster to reach. Jointly, the states that expressed more opposition were left for the end. This can be understood if we look at what happened in Rhode Island, where the affirmative votes were 34 and the negative ones 32.

Before beginning with the analysis of The Bill of Rights, we would like to expose the so-called system of ‘checks and balances’ in American constitutionalism. We divide it into three sections: the first one involves the actions of the President (Executive) as a counterweight to Congress (Legislative) and the Supreme Court (Judicial). The second links the counterweights used by Congress against the President and the Supreme Court. Finally we develop the actions of the Supreme Court against the President and Congress. Recalling the analysis from the first part we find that Congress is in charge of passing bills. The system of checks and balances works when the President has the power to veto such projects. Thus the Executive may limit the actions of the Legislative. At the same time, the President can call for special sessions (Congress). On the other hand, it has the ability to reserve certain sensitive information from Congress. As for its actions in relation to the Judiciary, the President appoints federal judges and members of the Supreme Court. As for congressional actions in the system of checks and balances, the Legislative Power can propose amendments to the Constitution that might end up affecting the powers of the President and the Supreme Court. It can set limits to their actions. Another extremely important element of the system is that Congress may apply impeachment for judging and removing the President and members of the Supreme Court. Here the mechanism is related to the first section because the President appoints the members of the Supreme Court however Congress can remove them. This means that the Legislative Power sets limits to the Executive´s actions in what concerns to the highest authority of the Judicial Power. Another important element relates with the first section: despite the President can veto indiscriminately all the bills that Congress suggests, the Legislative Power has the possibility to override the veto by two thirds of both houses’ votes. For most constitutional specialists this is the maximum expression of the checks and balances system. The Legislative Branch is responsible for developing legislation. The Executive Branch has the power to block this legislation, for example in case that it affects the interests of certain social sectors. However, in order to prevent the Executive Branch from abusing its veto power, the Legislative Branch, throughout non-ordinary mechanisms can surpass the presidential veto, for example in cases where given legislation is fundamental to society but affects the interests of the Executive Branch. As previously mentioned, Congress can create laws passing through the main presidential counterweight. Another mechanism used by Congress is the control over federal funds. It has interference over the budgets of the Executive and Judicial. Likewise, it must ensure control over their spending. This is done to prevent embezzlement. On the other hand, it maintains control of the nation’s accounts under the scope of the people's representatives; as the Executive Power is in charge of the nation’s external liaisons, for example by signing treaties, appointing ambassadors and other officials, the Legislative Power controls them by approving or disapproving diplomatic appointments and ratifying treaties signed by the President or his official representatives. This implies that the President does not have complete freedom as for the nation’s foreign affairs. Congress may set limits; Congress may refuse from giving consent to judicial summons (made by the Supreme Court). Legislative officials are judged and dismissed by their own institutions, the Executive and Judicial do not interfere.

The final section, judicial actions against the two other powers, is extremely important. As previously mentioned there might be conflict in the law creation process between the Legislative and Executive branches, however it can also happen that both have an understanding. The Judicial Power ensures the constitutionality of laws passed by Congress and signed by the President. It can consider that some laws go against the Constitution, hence leaving them without effect. It also provides the nation’s institutional functioning framework given the limits it can set against the indiscriminate creation of laws by other branches. The Judicial Branch has the power to issue court orders against public officials and also judge them. If the president was removed by impeachment or congressmen were expelled, they can be tried in federal courts for their actions in office; to ensure the Constitution´s supremacy, the judiciary can declare a treaty signed by the Executive and ratified by the Legislative as unconstitutional. The Supreme Court has original jurisdiction when it comes to diplomats. As a partial conclusion: the system of checks and balances seeks to limit the indiscriminate actions of one or more branches. It prevents interference by certain power in the influence areas of others. At the same time it foresees the nation’s constitutional order, respecting what was exposed there, which after all conforms the interests of the American people.

In this final section we analyze The Bill of Rights. After the Constitution’s ratification, citizens had access to the new regulatory framework. However they realized there weren’t too many references regarding individual rights. The primary concern was to crystallize certain liberties in the Constitution. In 1791, 10 amendments were ratified, granting certain rights and guarantees to American citizens. The First Amendment determines that Congress cannot issue legislation establishing a particular religion as the United States’ official one. It prohibits the restriction of freedom of expression and freedom of the press. The amendment stipulates that Congress cannot deny the right to peaceful assembly. Nor can suspend the right to request government’s correction or compensation based on their actions. The Second Amendment guarantees the people’s right to keep and bear arms. The federal government can restrict the possession of certain weapons but not the right to have them. Within the historical context, it is understandable that people demanded the constitutional protection of the right to bear arms. The Third Amendment restricts the quartering of soldiers in private property without the consent of their owners. Like the Second Amendment, it is understood through the historical context in which it took shape. British troops quartered illegally in American properties protected under the British Parliament’s resolutions during the Revolutionary War. Discontent and rejection among locals led to the fear of new external conflicts.

The Second Amendment guarantees the right of people to keep and bear arms. It was established in 1791 and is understood through the historical context in which it took place. Currently, there is a major debate nationwide regarding arms control.

The Fourth Amendment protects citizens against unreasonable searches and seizures from authorities. It demands that any warrant should be judicially sanctioned and supported by probable cause. The historical context becomes relevant once again: the amendment was adopted as a response to the abuse of the writ of assistance, which was a type of overall search warrant during the American Revolution. The Fifth Amendment protects people accused of crimes. Those accused of committing a crime must be tried and sentenced by a court (jury). It guarantees due process and goes against extrajudicial processes. Apart from that, it ensures that no person is judged by a crime for which they were tried and sentenced before. No person can be forced to testify against himself (something common during the revolutionary era). Finally, the amendment allows the nationalization of private property as long as the payment is guaranteed. The following amendment extends some of these issues, while focusing on the rights of the defense during a trial. Among the most important ones are: the right to a public trial, the right to be judged by an impartial jury, the right to call witnesses and to confront those who testify against oneself.

The Seventh Amendment guarantees trials by jury in federal cases exceeding the sum of $ 20. It is understood by the demands of citizens during the early years of the United States, something similar with the Eighth Amendment, which states: 'Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.' Nowadays the final part of the amendment tends to be more relevant because it prohibits the use of cruel and unfair punishment. The Ninth Amendment states that the enumeration of certain rights in the Constitution does not imply the denial of other fundamental rights that are not mentioned. Currently some people tend to invoke the Ninth Amendment when it comes to the privacy right, which is not strictly stipulated in the Constitution. The Tenth Amendment states: 'The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.' It reinforces the concept of republicanism by stipulating that the powers not delegated to the federal union through the constitution are reserved to the states or the people.

Throughout this paper we analyzed the evolution and main aspects of American Constitutionalism. Foreseeing the historical process through which it was shaped allows us to see in a much clearer way the structure of power and government in the United States. Evaluating the Constitution is relevant because it is the original framework of the state's structure. The way in which Congress gives shape to bills, the President appoints members of his cabinet or the attributes of authorities from the Supreme Court, all is encompased in the Constitution. It also helps us to understand some relevant aspects of contemporary American society. As previously mentioned, some amendments still have relevance nowadays despite they were created more than 200 years ago. No nation can be understood without a clear and objective evaluation of its Constitution. Despite the intense debate that may arise from this, the Constitution keeps on being a key element in the life of the American state. From the Preamble to the amendments, from Article I to Article VII, each part of this Constitution is vital in order to move closer towards a better understanding of the United States of America.





                                                                          Tomás Vera Ziccardi.





* This paper is property of Tomás Vera Ziccardi. Its rights are reserved to TVZC due to the Author's request.