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 3rd 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.
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.
