Tuesday, January 2, 2018

5 limits on presidential power that you never heard of

"For as in absolute governments the King is law, so in free countries the law ought to be King; and there ought to be no other."

- Thomas Paine's "Common Sense" (1776), Chapter III

Impeachment is not the only limit on the president's power

"What's the difference between a president and a king?" This is a question that Americans sometimes ask themselves, and we usually conclude that there are major differences between the two (or at least ought to be). But if you had asked this question at the time of the Constitutional Convention, many Americans would have feared that there wouldn't be much difference between the two under the new Constitution. They might have said that it was too much power to give to one man (like the president), and that powers might be best confined to a larger body like the Congress. They eventually came around to see the presidency as a necessary institution despite these potential hazards, but they still worried greatly about executive power, and were wondering how the Congress could check (or stop) the power of the presidency. The most obvious example of a legislative check on the president is the Congress's power to impeach the members of the executive branch - and, most importantly, the president himself (or herself, depending). But this is far from their only check on the president's power, since there are a number of others to be found in the Constitution, if you know where to look for them. I will be spending this post discussing just five of them.

King George the Third, the monarch that the American Revolution was (partially) fought against

Friday, December 15, 2017

Rights to fair trial: Restraints on the power of the police and the president

"A person charged in any state with treason, felony, or other crime, who shall flee justice, and be found in another state, shall, on demand of the executive authority of the state from which he fled, be delivered up, to be removed to the state having jurisdiction of the crime."

Article 4, Section 2, Paragraph 2 of the Constitution

Headquarters of the United States Department of Justice, or "DOJ"

Although the president enforces the laws, they can't punish people without the courts ...

In our Constitution, it says that the president "shall take care that the laws be faithfully executed, and shall commission all the officers of the United States" (Source: Article 2, Section 3). This includes prosecutors and police officers, I should note here. Many of these laws to be "faithfully executed" authorize particular punishments for various actions, I should further note, from fines to imprisonment to being executed (depending on the seriousness of the offense, as perceived by the Congress). If the president had carte blanche to enforce these laws passed by Congress, with no limits to this power, he could carry out these punishments anytime he said these laws were violated - or even at times when they were not. (If, that is, there were no judicial branch to check this power, and require him to prove that these violations actually happened as he claimed they did.) Thus the Constitution created a judicial branch that was as independent as possible from the President and the Congress, so that no one group would possess the power to enforce these laws at their own whim or fancy. This is one of the real bulwarks of our Constitution, and is one of the true guarantees of our liberties. Thus, I wish to spend some time on it in this post, and educate us all about our constitutional rights as American citizens - particularly those found in the Bill of Rights.

Supreme Court of the United States

... so the very existence of the court system is itself a check on the presidency

Specifically, the Constitution said that "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 their 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." (Source: Article 3, Section 1) The courts have a certain power to strike down laws passed by the Congress, I should note here, which is another important power that I should note (at least in passing) before moving on to my main topic, which is judicial restraints on the president and the police force. (I discuss striking down laws in some detail in one of my other blog posts, if you're interested in that subject. This post, by contrast, will be more focused on the Bill of Rights, and on the judicial checks on the executive branch.)

U. S. Ninth Circuit Court of Appeals (an influential appeals court) - Pasadena, California

Rights of the accused: The balance between individual protections and criminal justice

"The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law."

Coffin et al v. United States (1895), the Supreme Court case which codified the presumption of innocence for people accused of crimes

People are innocent until proven guilty, and do not have to "prove" their innocence

There's a saying in America that is often quoted in these contexts, which is that people are "innocent until proven guilty." This saying is so familiar to Americans that we often take it for granted, I think, and we may not always realize how rare it is in the world to have this kind of default assumption. In this country, the burden of proof is on the prosecution - or in civil cases, the "plaintiff" - rather than the defendant, and the defendant is not even required to open his or her mouth to "prove" his or her own innocence. This is not written explicitly into our Constitution, I should note here, but it is implied by a number of amendments, and was codified by the Supreme Court case quoted above. When a person really is guilty of a crime (as sometimes happens), this can make it somewhat difficult to bring criminals to justice; and the police force and prosecutors have to possess a high degree of skill to provide the necessary proof of these actions. But if these protections are not in place (and many countries don't have them), then innocent people are vulnerable to an arbitrary tyranny that can punish them at will; and there are few things Americans fear more than an absolute government with unlimited power. Thus, there must be a balancing act in any free country between individual protections and criminal justice, where the people are protected against both unlimited government and violent criminals; and it might be helpful to go over some of these constitutional protections from our Bill of Rights.

Friday, December 1, 2017

The First Amendment: Protecting religion from government (and not the other way around)

"Believing with you that religion is a matter which lies solely between man and his God, that he owes account to none other for his faith or his worship, that the legislative powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should 'make no law respecting an establishment of religion, or prohibiting the free exercise thereof,' thus building a wall of separation between Church and State."

- Thomas Jefferson to the Danbury Baptist Association, on January 1, 1802

The most hotly debated sentence in American history

The Constitution has many passages in it that are hotly debated today, and these debates will likely continue for years to come. But if I were asked what is the most hotly debated sentence in American history, my vote might well go to this one: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances." (Source: First Amendment) This is the Constitution's famous First Amendment, and it is indeed the first of the ten amendments that make up our modern "Bill of Rights." It would also seem to be the first thing that the people of that time wanted to include when they endeavored to list various "rights" in the Constitution via the Bill of Rights, and so one might surmise that these rights need to be understood today by the people who live here.

Thomas Jefferson

Establishment of religion, or "prohibiting the free exercise thereof"

The very first thing that this amendment mentions, I should acknowledge here, is respecting an "establishment of religion." This clause has been sometimes associated with a famous phrase by the American Founding Father Thomas Jefferson, which is "a wall of separation between Church and State." This is a phrase that rings loudly in the ears of atheists today, because of the persecution that they see from the Christian majority surrounding them. Indeed, atheists love to remind society that so many Founding Fathers were actually Deists (rather than Christians), and that they were thus somewhat different from the "Christian majority" surrounding them (which they delight in pointing out often). But between the "establishment of religion" clause and the amendment's first semicolon is one other important phrase - and only one other phrase - which is the part forbidding government from "prohibiting the free exercise" of their religion. This clause has long been associated with the phrase "freedom of religion," which is a phrase that rings loudly in the ears of Christians in the same way; and which is similarly revered as sacred.

United States Bill of Rights

Wednesday, November 29, 2017

The difference between a democracy and a republic

"The United States shall guarantee to every state in this union, a republican form of government ... "

Article 4, Section 4 of the United States Constitution

Is there a difference between a "democracy" and a "republic"?

The meaning of words tends to change over time, and the words "democracy" and "republic" are no different in this respect. For example, if you were to ask Americans on the streets today whether there's a difference between the two words, many would reply that they are the same (or, at least, close to the same), and some dictionaries even define them as synonymous today. Among them is the website of Princeton University, which offers multiple definitions for each word. One of these definitions is even the same for both words, and their website lists the two words as accepted synonyms for each other in this context. Their shared definition, in case you're wondering, is that they are "a political system in which the supreme power lies in a body of citizens who can elect people to represent them" (Source: entry on "democracy" and entry on "republic") The contemporary use of these words is thus somewhat interchangeable, and the common meaning of these words would admit few (if any) distinctions between them.

James Madison

The Founding Fathers thought there actually was ...

Yet there is a historical distinction between the two that our Founding Fathers recognized, and one of them even offered these definitions explicitly in the Federalist Papers. These definitions show a distinction between the two in the mind of this particular Founding Father. The Founding Father was James Madison, and he essentially said that a democracy was a direct democracy - or in other words, where people vote on everything directly in person. His phrase for a direct democracy was a "pure democracy," and he defined it as "a society consisting of a small number of citizens, who assemble and administer the government in person" (Source: Federalist No. 10). A good example of this system might be Ancient Athens, the most successful city-state within the lost world of Ancient Greece. Madison's definition of a republic, by contrast, was that it was "a government in which the scheme of representation takes place" (Source: Federalist No. 10). In other words, he said, the definition of a republic is where the people elect others to make those decisions for them. Which is better, you might ask? Are there greater dangers in delegating these powers to our elected representatives, or do the greatest dangers come from other sources, like the "tyranny of the majority"?

James Madison

Wednesday, November 22, 2017

The Constitution has a backup plan for virtually everything

"In case of the removal of the President from office, or of his death, resignation, or inability to discharge the powers and duties of the said office, the same shall devolve upon the Vice President, and the Congress may by law provide for the case of removal, death, resignation, or inability, both of the President and Vice President, declaring what officer shall then act as President, and such officer shall act accordingly, until the disability be removed, or a President be elected."

- Article 2, Section 1, Paragraph 5 of the Constitution (which was partially changed by constitutional amendments, as I will describe later here)

The true test of a country is how it handles emergencies ...

The Constitution is well-equipped to handle the routine and the mundane, and the periods of relative stability that have marked most of this country's history. But this country's Constitution is also well-equipped to handle periods of chaos and instability where elected officials die, or resign, or become otherwise ineligible through disability. The true test of a country is sometimes found in how it handles these contingencies, and the other emergencies that it can face in its history. Thus, the Constitution has a number of backup plans about how to deal with these things; and some of them come from the original Constitution itself, and the clauses related to the succession of presidents and other elected officials. But other backup plans come from the amendments that were made since that time; and a review of these things might thus be helpful here, to show how the Constitution handles these unusual emergency situations.

White House

Thursday, November 9, 2017

Reagan and “Star Wars”: Bringing the fall of the Wall and the end of the Cold War

"Mr. Gorbachev, open this gate ... Mr. Gorbachev, tear down this wall!"

- President Ronald Reagan, standing at Brandenburg Gate on 12 June 1987

Two rival superpowers with nuclear weapons

People in my generation may not always be aware of it today, but the world was afraid of a nuclear war for over forty years of the last century. It was called the "Cold War," for those who don't know, and the scariest thing about it was that this nuclear holocaust could actually happen. Two superpowers had nuclear weapons, you see - which were, of course, the United States and the Soviet Union - and these two superpowers disliked and distrusted each other greatly.

Berlin Wall, 1986

An eerie description of the Cold War from a previous century

The words of a philosopher from 300 years ago could be seen as an accurate description of this twentieth-century conflict, and an eerie one at that. The English philosopher Thomas Hobbes wrote that "persons of sovereign authority [or in this case, nations] ... [are] in the state and posture of gladiators; having their weapons pointing, and their eyes fixed on one another; that is, their forts, garrisons, and guns upon the frontiers of their [nations]; and continual spies on their neighbors; which is a posture of war." (Source: "Leviathan" [published 1651], Chapter XIII, the subsection entitled "The incommodities of such a war") Thus, in many important ways, Thomas Hobbes' timeless quotation is an apt description of the Cold War.

Blockade (or "quarantine") of Cuba during the Cuban Missile Crisis, 1962

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