I. THE UNITED STATES CONSTITUTION

A. The Functions of the Constitution

The United States Constitution is an amazing document. A bold experiment in democracy more than 200 years ago, it has proved both stable and flexible enough to survive and remain effective in a world totally different from the one in which it was written.

The Constitution has three main functions. First it creates a national government consisting of a legislative, an executive, and a judicial branch, with a system of checks and balances among the three branches. Second, it divides power between the federal government and the states. And third, it protects various individual liberties of American citizens.

The Constitution’s framework owes much to the history that led to its drafting. The limitations placed on the federal government and each of its branches were a reaction to the tyranny of British rule, and especially the tyranny of the single monarch. Yet the breadth of the national government’s powers were a correction to the weak government of the Articles of Confederation (the short lived system before the present constitution), that had proved incapable of forging the thirteen original states into one nation.

1. Separation of Powers

The Government of the United States, the federal government, is divided into three branches: the executive power, invested in the President, the legislative power, given to Congress (the House of Representatives and the Senate), and the judicial power, vested in one Supreme Court and other federal courts created by Congress. The Constitution provides a system of checks and balances designed to avoid the tyranny of any one branch.

Most important actions require the participation of more than once branch of government. For example, Congress passes laws, but the President can veto them. The executive branch prosecutes persons for criminal violations, but they must be tried by the courts. The President appoints federal judges, but their appointment must be confirmed by the Senate.

2. Division of Federal and State Power

Another important function of the Constitution is to divide power between the national government and the state governments. This division of authority is referred to as “federalism.” The federal government is very strong, with much power over the states, but at the same time, it is limited to the powers enumerated in the Constitution. Powers not delegated to the federal government, nor prohibited to the states are reserved to the states or to the people. Although the powers of the federal government are limited to those enumerated in the Constitution, those enumerated powers have been interpreted very broadly. And under the supremacy clause of the Constitution, federal law is supreme over state law. State or local laws that conflict with the Constitution or federal statutory law are preempted.

The Constitution also limits the powers of the states in relation to one another. Because the United States Congress has been given the power to regulate interstate commerce, the states are limited in their ability to regulate or tax such commerce between them. Under the Constitution’s privileges and immunities Clause, states are prohibited from discriminating in many ways against citizens of other states.

3. Protection of Personal Liberty

The third main purpose of the Constitution is to protect the personal liberty of citizens from intrusions by the government. A few of these protections are found in the main body of the Constitution itself. For example, Article I, sections 9 and 10 prohibits both ex post facto laws, which punish conduct that was not illegal at the time it was performed, and bills of attainder which single out individuals or groups for punishment..

Most Constitutional protections for individual rights are contained in the Bill of Rights, which constitute the first ten amendments to the Constitution. These amendments were adopted shortly after the adoption of the Constitution itself, in response to state concerns about the Constitution’s lack of protections for individual rights. The protections of these amendments were originally interpreted to apply only against the federal government, but the Supreme Court has since ruled that most of them were made applicable to the states by passage of the Fourteenth Amendment due process clause after the Civil War. The Fourteenth Amendment also contains the equal protection clause, which protects citizens from discrimination by the states on the basis of race, sex and other characteristics.

4. Permanent Protections of a Constitution

In a democracy without a written constitution, such as the United Kingdom, the legislature may pass laws granting or taking away any rights, or even changing the structure of the government itself. A Constitution is more difficult to alter, and the framers of the American Constitution made it especially difficult to amend. An amendment must first pass both houses of Congress by a two-thirds majority and must then be ratified by the legislatures of three-fourths of the states. In a sense, this makes the Constitution an anti-majoritarian document.

By binding the hands of future generations, it prevents a majority from granting tyrannical powers to the government in a time of crises. It also prevents a majority from easily taking away the rights of minorities. And it prevents those in office from holding on to power by increasing their terms in office.

A document that is so difficult to amend can become obsolete over time, if it is too detailed and inflexible. For the most part, however, the Constitution is written in terms general or abstract enough to retain a core set of values yet be amenable to changing interpretations as called for by the times.

B. The Structure of the Federal Government

1. Legislative Branch

Article I of the Constitution vests the legislative power of the Untied States in a bicameral Congress. The Congress is composed of the House of Representatives, the members of which are elected for two-year terms and represent districts of equal numbers of people, and the Senate which is composed of two senators from each state who serve for six-years terms. Senators were originally chosen by the state legislature, but are now directly elected. The composition of the House and Senate represented a compromise between the larger states, which wanted a legislature based on population and the smaller states, which wanted equal representation for each state. A majority of both houses must pass all bills, and if the President vetoes a bill, a two-thirds majority of both houses is required for the bill to become law.

The powers of Congress are listed in Article I, Section 8, and Congress may not exercise any not power listed there. But those powers encompass many areas, including taxing and spending, coining and borrowing money, controlling interstate and foreign commerce, maintaining an army and navy, and declaring war. Several of these powers have been interpreted very broadly, especially the power to regulate interstate commerce and the power to “make all laws which shall be necessary and proper” for carrying out all their other powers. Congress also has broad authority to delegate many of its powers to the President and to administrative agencies.

2. Executive Branch

The power of the executive branch is vested in the President. The President is elected for a four-year term, not by direct election but by the electoral college. Under this system, each state has a number of members of the electoral college equal to the number of members of the House and Senate. The candidate who receives the largest number of votes in a state gets all the electoral votes of that state. The candidate with a majority of the electoral college becomes the President. If no candidate receives a majority of the electoral votes, the winner is chosen by the House of Representatives. To be eligible to be President one must be thirty-five years old and a natural born citizen of the United States. Under the Twenty-second Amendment, no person may serve as President more than twice.

The powers explicitly granted to the President in Article II are quite important, but limited in number. The President is the Commander in Chief of the Army. He also has the power to grant pardons and reprieves and has the power, with the advice and consent of the Senate, to make treaties, and to appoint federal judges, ambassadors, and other public Officers of the United States. The extent of the President’s inherent power over matters not explicitly provided for in the Constitution is subject to debate. The power to conduct foreign affairs has been held to be inherent in the office, but the Supreme Court has been less willing to extend inherent powers in the domestic area.

The President is subject to control by Congress in several ways. Congress has the last word on many disputes with its ability to pass laws, even over the President’s veto. The President’s most important appointments are subject to confirmation by the Senate. Finally, the President may be removed from office if impeached by the House and convicted by two-thirds of the Senate of “high crimes and misdemeanors.”

3. The Judicial Branch

The Constitution grants the judicial power of the United States to one Supreme Court and other inferior courts that may be created by Congress. Federal judges are appointed for life by the President and must be confirmed by the Senate.

All federal courts are, under the Constitution, courts of limited jurisdiction. They may hear only “cases or controversies,” which means that they cannot perform non-judicial functions or give advice to the President or Congress about the constitutionality of proposed action. They cannot hear all kinds of cases, but only those listed as within the judicial power of the United States, as laid out in Article III. The kinds of cases listed in Article III were chosen to protect various interests of the United States. The federal courts are also subject to the will of Congress in so far as it can distribute and even limit the jurisdiction of the various federal courts.

The federal courts have one power not enjoyed by courts in some other countries. They may declare a statute enacted by Congress to be in violation of the Constitution and therefore invalid. This power of judicial review was established by the Supreme Court in 1803, in the landmark case of Marbury v. Madison. If the Supreme Court declares a Congressional Statute unconstitutional, normally the only way to change this result is to use the difficult process of amending the Constitution.

Although the Supreme Court is in one sense the final arbiter of the meaning of the Constitution, this power is not unlimited. The Court cannot enforce its judgments without the cooperation of the executive branch, and is subject, at least in some measure, to control over its jurisdiction by Congress. The Court itself has relinquished the power to interpret certain areas of the Constitution, saying that is committed by the Constitution to other branches of government. For example, the Court has determined that the power to judge the qualifications of members of Congress has been entrusted by the Constitution solely to Congress itself, and has refused to act in such matters.