Saturday, September 17, 2016

The United States Constitution: The secret of America’s success

Great Seal of the United States

As I set out to write a general post about the Constitution of my country, I have the problem of any writer who speaks to a general audience: I speak to those familiar with my culture (including many fellow Americans), and those who know it not at all (since the Internet knows no political boundaries). Even when speaking to fellow Americans, I write to fellow adults who have the power to vote, to a rising generation not yet blessed with the opportunity to participate, and perhaps even to those yet unborn, who will run the country in a distant future. I speak to those who know these things now, to those who once knew these things (but have since forgotten), and to those who never learned them at all - often because the educational system failed to teach them the things it should have; and who, through no fault of their own, have never had the opportunity to hear the message of the Constitution.

A replica of Independence Hall, which is not surrounded by
high-rise buildings (that don't belong in the period) the way the real one is today

In talking about it, I would be remiss to leave out that it is the greatest success story of the United States; and may well be the greatest secret of its more than two centuries of uninterrupted democratic success - the reason for its current greatness. I will try to be (at least somewhat) brief, that I might not burden the audience with an excess of words and analysis; but I will try to be thorough as well, that I might not leave out anything that is essential to why it has worked as well as it has.

Interior of Independence Hall

Mission of the Constitution (as stated in the Preamble)

The Constitution has a very simple mission (or rather, six missions) that it states explicitly. In the document's preamble, it says: "We, the people of the United States, in order to form a more perfect Union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America." (Source: Preamble to the Constitution) The particulars of how to accomplish this mission are largely left to the people themselves, in whose hands the ultimate power over the democracy rests; but the six-fold mission of the government is explicitly stated in one of the most stirring (and memorable) passages in the country's history.

The Constitutional Convention, 1787

Principles of separation of powers and checks & balances

The Constitution follows a principle of separation of powers; which is the idea that bad government is best prevented by keeping any one group from getting too much power. To accomplish this mission, the government's power is divided into three branches of government (the legislative, executive, and judicial branches, to be specific); which are each given one particular kind of the government's power. One (the legislative) has the power of making laws, another (the executive) has the power of enforcing laws, and the last (the judicial) has the power of judging and interpreting laws - with as little overlap between these three kinds of power as possible. The only sharing of these powers enabled is the power each branch has to stop the encroachments of the other (which necessitates a certain power over the other branches); and to keep the other branches in their proper places - a process referred to as "checks and balances."

Title page from the original book edition of the Federalist Papers

Quote from Alexander Hamilton about these principles

One Founding Father (Alexander Hamilton) described this in a notable quote from the Federalist Papers, given here: "The science of politics, however, like most other sciences, has received great improvement. The efficacy of various principles is now well understood, which were either not known at all, or imperfectly known to the ancients. The regular distribution of power into distinct departments; the introduction of legislative balances and checks; the institution of courts composed of judges holding their offices during good behavior; the representation of the people in the legislature by deputies of their own election: these are wholly new discoveries, or have made their principal progress towards perfection in modern times. They are means, and powerful means, by which the excellences of republican government may be retained and its imperfections lessened or avoided." (Source: Federalist No. 9)

These principles are from the "science of politics"

Thus the Constitution uses these principles from the "science of politics," which received their greatest improvement in the time of this country's founding.

The legislative (or "law-making") branch

"All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives."

Article 1, Section 1 of the Constitution

United States Capitol, the building where the Congress meets

The division of the legislature is one of the most important "balances" in the Constitution; because like the British Parliament it was modeled on, the legislative body of the United States is divided into two separate houses - analogous to the "House of Lords" and the "House of Commons" in British parliamentary government. This "bicameral" (or two-house) legislature is a big part of the reason why the Congress's power is as limited as it is, because it is sufficiently divided among multiple members to make it hard for any one "special interest" to gain control of it. (More on how each one is elected here, and how representation is determined here; if you seek further information on the subject.) The Constitution also says that a smaller number of members from each house "may be authorized to compel the attendance of absent members, in such manner, and under such penalties as each House may provide." (Source: Article 1, Section 5, Paragraph 1) The Constitution even says that "Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two-thirds, expel a member." (Source: Article 1, Section 5, Paragraph 2) Both houses thus have some power to keep their affairs in order.

Parliament of Great Britain, the model for the U. S. Congress

Powers of the Congress (such as declaring war)

In an attempt to reduce confusion about how much power is granted to the Congress, the Constitution actually listed explicitly some of the powers thus granted (Source: Article 1, Section 8, which has 18 clauses in it), and listed a few others that were forbidden just as explicitly - such as how "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it." (Source: Article 1, Section 9, Paragraph 2) A "writ of habeas corpus" is just a document saying that the government can't hold people in prison indefinitely, unless they first charge them with a crime, and soon after bring them to trial in the court system. The Constitution thus says here that this privilege may not be suspended, "unless when in cases of rebellion or invasion the public safety may require it" - an exception that is not often made in the United States. Of the powers that are granted, two of them are so important that I cannot leave them out of this post: the power to tax, and the power to "declare war" (Source: Article 1, Section 8, Paragraph 11) - a check upon the power of the executive to wage war without popular support, because it requires the president to get the financing for any such wars through Congress (and Congress alone), and to have its declaration that it is legal for him (or her) to be out there waging these wars in the first place.

Headquarters of the United States Department of the Treasury (which administers the IRS)

Taxation: Congress's most important single power

Even in peacetime, however, the power to tax is one of the most important powers of the Congress; since the executive branch is totally dependent upon the legislature for all funding, and often cannot operate without it. This was actually one of the most important improvements that the Constitution made over its most immediate predecessor, since the "Articles of Confederation" did not have any compulsory taxing power at all, and thus had a government that was perpetually devoid of revenue - perhaps the most important single reason for adopting the Constitution to begin with. In one of the most important "balances" of the Constitution, a notable clause said that "All bills for raising revenue shall originate in the House of Representatives; but the Senate may propose or concur with amendments as on other bills." (Source: Article 1, Section 7, Paragraph 1)

Headquarters of the Internal Revenue Service (or "IRS"), the tax collecting agency of the United States

The debate over "implied powers" centers around both the commerce clause ...

The Constitution also said that the Congress shall have the power to "regulate commerce with foreign nations, and among the several states, and with the Indian tribes." (Source: Article 1, Section 8, Paragraph 3) This was another improvement that the Constitution made over its most immediate predecessor, since the "Articles of Confederation" had no power to regulate trade, causing a certain amount of chaos between the thirteen states over trade policies. Since that time, the Congress has actually claimed a number of other powers in the name of "regulating interstate commerce" under this clause, arguing that these powers are "implied" by the provisions of the clause. Whether or not one agrees with this interpretation, it has tended to fare reasonably well in the court system; so the commerce clause has often been an abundant source of "implied" powers for the Congress (and the federal government generally).

... and the "necessary and proper" clause

But the Constitution's explicit list of powers actually ended with an even more sweeping clause than this one, which was the clause known to us as the "necessary and proper" clause. It was placed at the end of the Constitution's explicit list of powers, and said that the Congress shall have the power to "make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the United States, or in any department or officer thereof." (Source: Article 1, Section 8, Paragraph 18) The vagueness about what is "necessary and proper" - and specifically, over who would have the important power to decide what is "necessary and proper" - was seen by the people of this time as a major weakness in the Constitution, and created a certain amount of mistrust in a number of the Constitution's opponents.

Alexander Hamilton commented on the latter of these two clauses in the Federalist Papers ...

In the Federalist PapersAlexander Hamilton responded to this charge by saying that "a power to lay and collect taxes must be a power to pass all laws necessary and proper for the execution of that power; and what does the unfortunate and calumniated provision in question do more than declare the same truth, to wit, that the national legislature, to whom the power of laying and collecting taxes had been previously given, might, in the execution of that power, pass all laws necessary and proper to carry it into effect?" (Source: Federalist No. 33) He then observed that "I have applied these observations thus particularly to the power of taxation, because it is the immediate subject under consideration, and because it is the most important of the authorities proposed to be conferred upon the Union. But the same process will lead to the same result, in relation to all other powers declared in the Constitution. And it is expressly to execute these powers that the sweeping clause, as it has been affectedly called, authorizes the national legislature to pass all necessary and proper laws. If there is any thing exceptionable, it must be sought for in the specific powers upon which the general declaration is predicated. The declaration itself, though it may be chargeable with tautology or redundancy, is at least perfectly harmless." (Source: Federalist No. 33) In other words, Hamilton argued, if Congress doesn't have those powers "necessary and proper" to carry its power of taxation into effect (or any other power, for that matter), then it doesn't really have this power of taxation (or any of these other powers) at all - something which would be injurious to the Union, when a government needs steady revenue to operate. Thus, Hamilton concluded, the "necessary and proper" clause is not the "threat to liberty" that its opponents made it out to be, but is at the most merely redundant.

Independence Hall

... and so did James Madison

James Madison later added another argument to this in his own defense of the "necessary and proper" clause, when he said in the Federalist Papers that "without the substance of this power, the whole Constitution would be a dead letter." (Source: Federalist No. 44) We can't anticipate what powers the government might need at a future time, Madison argued; so we can't limit Congress only to those powers expressly delegated, or we'd never have any real authority in the government at all. This kind of limitation to powers "expressly delegated" was the mistake of the Constitution's predecessor, Madison said later, and "the new Congress would be continually exposed, as their predecessors have been, to the alternative of construing the term 'expressly' with so much rigor, as to disarm the government of all real authority whatever, or with so much latitude as to destroy altogether the force of the restriction." (Source: Federalist No. 44)

What powers are "not delegated" to the federal government? (The debate continues ... )

Madison later authored ten amendments to the Constitution which became the United States Bill of Rights; and one of them in particular - namely, the Tenth Amendment - has some relevance to this subject. The Tenth Amendment said that "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." (Source: Tenth Amendment) An earlier version of the amendment had included the wording of "expressly delegated" (rather than just "delegated"), which would have denied the Congress any implied powers at all. This version of the amendment was defeated, however, and so the wording today simply says "delegated" (rather than "expressly delegated"). This is significant especially, when you consider that the Constitution's predecessor (the "Articles of Confederation") had actually included the word "expressly" in its phrase "expressly delegated," and so the Constitution was a clear departure from its predecessor in this respect. Nonetheless, the Tenth Amendment sets some real limits on the power of the federal government even without this critical word. In practice, it leaves it to the courts to decide whether particular powers are implied by the sweeping provisions of the "necessary and proper" clause, or denied by the later limits of the Tenth Amendment. Frequently, they have tended to side with the Congress in these matters; and when the "necessary and proper" clause is combined with the commerce clause, the powers delegated to the federal government are numerous. The courts have considered many a power to be "necessary and proper" for the Congress to regulate "interstate commerce," and so the debates over this issue are still ongoing.

Capitol Dome, on the building of the United States Congress

A majority of both houses constitutes a "quorum to do business" ...

As these clauses make clear, the Congress has a great deal of power given it by the Constitution; but the very parts of the Constitution detailing the process by which it may make these important laws also specify one of the major "checks" (or restraints) upon this power, which is the presidential "veto." The word "veto" is never used in the Constitution itself, but the process is described explicitly in some of the most important passages of the Constitution, and allows the executive branch (specifically, the president) some important power to "check" the excesses of the legislature. Under most conditions, the Constitution says that "a majority of each [house] shall constitute a quorum to do business; but a smaller number may adjourn from day to day" (Source: Article 1, Section 5, Paragraph 1). With that said, here are the relevant portions:

United States Capitol building

... unless the president vetoes it, which means that the necessary votes would go up to two-thirds

"Every bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the president of the United States; if he approve, he shall sign it, but if not, he shall return it, with his objections, to that house in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it. If after such reconsideration, two thirds of that house shall agree to pass the bill, it shall be sent, together with the objections, to the other house, by which it shall likewise be reconsidered, and if approved by two-thirds of that house, it shall become a law." (Source: Article 1, Section 7, Paragraph 2)

Capitol Dome at night

What if the president doesn't respond at all? (The Constitution's answer)

The paragraph continues:

"If any bill shall not be returned by the president within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the Congress by their adjournment prevent its return, in which case it shall not be a law." (Source: Article 1, Section 7, Paragraph 2)

The presidential veto applies to all bills, orders, resolutions, and votes (except adjournment)

And finally:

"Every order, resolution, or vote to which the concurrence of the Senate and House of Representatives may be necessary (except on a question of adjournment) shall be presented to the president of the United States; and before the same shall take effect, shall be approved by him, or, being disapproved by him, shall be re-passed by two-thirds of the Senate and House of Representatives, according to the rules and limitations prescribed in the case of a bill." (Source: Article 1, Section 7, Paragraph 3)

The veto is an important check

Thus the Constitution has some important checks on the law-making power of the Congress.

Footnote to this section:

The Constitution says that "The Congress shall have the power: To lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defence and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States." (Source: Article 1, Section 8, Heading and Paragraph 1The Constitution also empowers the Congress to "borrow money on the credit of the United States," which is another important power (Source: Article 1, Section 8, Paragraph 2). In the Federalist Papers, Alexander Hamilton commented that "This power over the purse may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure." (Source: Federalist No. 58)

The executive (or "enforcing") branch

"The Executive power shall be vested in a President of the United States of America. He shall hold office during the term of four years ... "

Article 2, Section 1 of the Constitution

The White House, where every president of the United States has lived (excepting the first)

The executive branch is controlled by a single individual, elected every four years

Unlike the Congress, the executive branch is controlled by a single individual, who is usually referred to in the masculine in the linguistic style of that time; although there are no prohibitions on a feminine president anywhere in the Constitution, so it is possible to have a female president (although I should note that at the time I write this, it has not happened yet). With this gender clarification in mind, I will give the portion of the Constitution establishing the executive branch: "The Executive power shall be vested in a President of the United States of America. He shall hold office during the term of four years" (Source: Article 2, Section 1) There is usually also a Vice President of the United States, who is first in line to become president (more about that subject here). The Constitution says that "The Vice President of the United States shall be President of the Senate, but shall have no vote, unless they be equally divided." (Source: Article 1, Section 3, Paragraph 4) However, the Senate does have some power to elect its own leaders, because the Constitution says that "The Senate shall choose their other officers, and also a President pro tempore, in the absence of the Vice President, or when he shall exercise the office of the President of the United States." (Source: Article 1, Section 3, Paragraph 5)

Franklin Delano Roosevelt, the only man to be elected to more than two terms as president

Limits to how often the president can be re-elected

A later constitutional amendment set term limits upon the office of the presidency. In the words of this particular amendment, "No person shall be elected to the office of President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once." (Source: Twenty-Second Amendment, Section 1 [ratified 1951]) This is one of the most important changes to what the original Constitution said about executive power, which is so important that I cannot leave it out here. I will now return to my discussion of the original Constitution.

King George III, the British king that the American Revolution had been partially fought against,
and who was seen by eighteenth-century Americans as the very symbol of executive power "run amok"

The controversy over executive power at the Constitutional Convention

The important issue of executive power was one of the greatest controversies of the Constitutional Convention, and eighteenth-century Americans strongly suspected that executive power was "royal" and "monarchical" by its very nature. So great was their distrust of executive power, in fact, that the Constitution's predecessor, the "Articles of Confederation," had not even included an executive branch at all; but just a Congress with limited power. Moreover, even amongst delegates who favored having an executive branch of some kind, there were some who thought that it should actually be a plural executive (rather than a branch headed by a single individual); and so the kind of presidency advocated by the "proposed Constitution" was seen as a major threat to the people's liberties. After all, they pointed out, hadn't the colonies just fought a protracted war against a British king - the potent symbol of executive power "run amok"? The supporters of the Constitution were quick to point out that the president was subject to being voted out of office after his (or her) term of four years expired, and could also be removed through impeachment before then if he (or she) committed a crime. But even if one accepted this argument that the president wasn't just some "new way" of crowning a king (as its opponents claimed it was); still, why was it necessary to have a single executive instead of a plural executive?

Headquarters of the United States Department of Justice (or "DOJ")

Why have a single executive? Partly, because it responds to emergencies faster!

The most powerful answer that the supporters of the Constitution could offer here may have been their answer that a hierarchy, led by one person, could move faster than any committee composed of rival equals, who could seldom agree amongst themselves fast enough to get anything of substance done. Debate is fine and good when you need to have word-perfect laws (as with the Congress), they argued; but in an emergency especially, there just isn't time to debate about every detail of what needs to be done. Thus, at least one branch of the government needs to be able to respond quickly. This would seem properly the purview of the executive branch (which is charged with "carrying out" and enforcing the laws). The comparatively slow deliberations of the Congress - so often the source of jokes (sometimes even well-deserved ones) about legislative "inaction" - could well be more appropriately applied to the making of laws, which is (of course) the proper purview of the legislative branch. Some things (like this) require slow deliberation, these supporters of the Constitution argued; but others require fast action, and can't wait around for some committee to debate them thoroughly (or even minimally) - circumstances can require a more rapid response than that.

The Pentagon, headquarters of the United States Department of Defense

Another reason for a single executive: Higher visibility means easier accountability

Another interesting argument is one that Alexander Hamilton actually put forward in the Federalist Papers, when he said that the president, "from the very circumstance of his being alone, will be more narrowly watched and more readily suspected" (Source: Federalist No. 70, with an alternate version saying "from the entire circumstance of his being alone"). The visibility that comes from their being the only one with the final executive power, in other words, is a powerful incentive not to mess things up; and prevents much - although not all - abuses of executive power. An individual serving as part of a committee, in other words, can "pass the buck" and evade responsibility through relative anonymity easier than an individual who has final say in the matter. This may be part of the reason that the legislature sometimes seems able to get away with more scandals than a powerful executive like the president does - they can count on nobody taking sufficient notice of them individually to hold them accountable for their actions. (Which is not a sufficient reason for applying this same principle of "one leader" to other branches, I should note here - like the legislative branch, for example, where this would be inappropriate - but it is instead an incidental benefit of having the executive power ultimately rest in one individual's very visible hands.)

Harry Truman, with his famous sign "The Buck Stops Here" (a potent symbol of accountability)

The comparative anonymity of individual members of the legislature (and the solution for it)

Although this is my executive branch post, it might be appropriate to mention here (by way of a brief digression) that the Constitution does include one notable (and important) protection against the evasion of responsibility by individual members of Congress; which is to force them (at times) to have their votes entered on a record that is publicly visible (Source: Article 1, Section 5, Paragraph 3) - something that reduces much (although not all) evasion of responsibility on these legislators' part. Ultimately, though, the responsibility still rests with the people to keep a watchful eye on the individual legislators, and hold those who do disreputable things strictly accountable for their actions as much as possible.

The White House from the northern side

Powers of the executive (including law enforcement, military, and diplomatic powers)

Back to the executive branch: Before taking office, the president has to swear an oath to uphold the Constitution. The text of that oath is as follows: "Before he [the president] enter on the execution of his office, he shall take the following oath or affirmation: I do solemnly swear (or affirm) 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." (Source: Article 2, Section 1, Paragraph 7) The president's most important duty under that oath is that he (or she) "shall take care that the laws be faithfully executed" (Source: Article 2, Section 3). As far as executive power goes, the Constitution also says that the president "shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment." (Source: Article 2, Section 2, Paragraph 1). It says that "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" (Source: Article 2, Section 2, Paragraph 1). These may be the most important powers of the president. The Constitution also says that the president "shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur" (Source: Article 2, Section 2, Paragraph 2) - thus specifying an important check upon this diplomatic power. The Constitution also says that the president "may receive ambassadors, and other public ministers" (Source: Article 2, Section 3), which is another important diplomatic power.

Headquarters of the United States Department of State (or "State Department"),
the part of the government most responsible for handling foreign diplomacy (an important function, to say the least)

The president may also delegate power to others, including Cabinet officials ...

The president also "may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices" (Source: Article 2, Section 2, Paragraph 1) This mention of "executive departments" here is one of the clearest references to a Cabinet in the Constitution, which is the collective name for all of the different departments of government that report to the president, and depend upon him for their continuance in office. The president has the power to nominate these Cabinet officers, although he (or she) may not appoint them without the "advice and consent of the Senate"; since there is a difference between nominating and appointing, which makes the president dependent upon the Senate for his (or her) Cabinet choices.

Headquarters of the United States Department of Education

Executive checks on other branches (such as vetoing laws and nominating judges)

The president also has the power to nominate judges at the federal level, which may be the most important check he (or she) has on the judicial branch. Again, the "advice and consent of the Senate" is required to turn these nominations into appointments, so this portion of the legislature also has a check on the judicial branch. (I will go into this later in my section about the judicial branch.) As far as presidential checks on Congress go, the president can veto laws passed by Congress (as I described earlier), although this veto can be overridden in certain circumstances. (Specifically, the president's veto can actually increase the number of votes required to pass a law by roughly one-sixth of each house, which is often enough to stop a bill from actually becoming law.) Since the president is thus involved in the legislative process, the Constitution says that the president "shall from time to time give to the Congress information on the state of the Union, and recommend to their consideration such measures as he shall judge necessary and expedient" (Source: Article 2, Section 3). This is the origin of the "State of the Union" address which is given annually, no matter who is president; and it is one of the major events of the American political year, whether it deserves to be so or not.

FDR addressing a joint session of Congress after Pearl Harbor, 1941

How the president is elected

I should note that the president is not elected directly by popular vote, but by the "electoral college" - a system the Founding Fathers created, which gives each state a certain number of electors equal to the total of its Senators and Representatives; often (but not always) with "winner-take-all" rules within the individual states, which cause the winner of that state to get all of that state's electors for the presidency. (That part is left up to the states.) The difficult part for the "electoral college" is determining how many votes each state gets, which is partially (and perhaps even largely) dependent upon the population counts from the national census every ten years. (For more on the details of how this process works, see my other post on the census, which also gives the original quotes about the electoral college.)

Richard Nixon, the only president ever to be removed by the threat of impeachment

Removing presidents via impeachment and conviction

Unlike executives in many other countries, the president can be removed from office if they commit a crime - a process popularly known as "impeachment." This is a major check upon the executive branch, which tends to keep it in line through the threat of removal. Time does not permit us to go into the specifics of how impeachment and removal work here in America, but I go extensively into these processes elsewhere. (Here at this link if you're interested.)

Footnote to this section:

In the Federalist PapersAlexander Hamilton wrote that "Decision, activity, secrecy, and dispatch will generally characterize the proceedings of one man in a much more eminent degree than the proceedings of any greater number." (Source: Federalist No. 70)

The judicial (or "judging") branch

"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."

Article 3, Section 1 of the Constitution

The part here about "good behaviour" is effectively a lifetime appointment, since it means that the judges can hold their offices for life unless convicted of a crime (which is fairly rare for American judges, possibly because of their being subject to removal in this way). Just as the executive branch is subject to impeachment, so is the judicial branch; and judges can be removed by the exercise of this power.

Alexander Hamilton

De facto lifetime appointment

The de facto lifetime appointment here is among the most criticized parts of the Constitution, but was defended by the Founding Fathers as making them independent of having too much influence from the other branches (which could erode the separation of powers), or the popular prejudices of the people, who might otherwise have the power to retaliate against those who enforce laws against them - even when those laws are just and have actually been broken by the people who were judged against. In the words of Alexander Hamilton in the Federalist Papers, "The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither force nor will, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments" (Source: Federalist No. 78) This is why Hamilton correctly quoted Montesquieu as saying that "Of the three powers above mentioned, the judiciary is next to nothing." (Quoted in footnote to Federalist No. 78) Hence, the radical mechanism of a de facto lifetime appointment, to protect against the improper influence of the other branches.

Supreme Court of the United States

How federal courts are created, and how state judiciaries are interconnected

The Constitution says that the Congress shall have the power to "constitute tribunals inferior to the supreme court" (Source: Article 1, Section 8, Paragraph 9) - which is one of the few checks of any kind on the federal judiciary. It is also subject to a veto by the president himself, which allows both of the other branches to be involved in the process of deciding whether or not to create new federal courts. Although this is a post about the federal judiciary, a brief word about judiciaries at the state level might be appropriate here before moving on. The Constitution says that "Full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof." (Source: Article 4, Section 1) Thus, the states are all interconnected in the proceedings of their courts, and anything that happens in one state can have repercussions in the others at times.

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

Supreme Court of California

Checks on the power of the police and the president

The very existence of the judicial branch is something of a check on the executive branch, I should note here, because it means that the executive branch can't punish people for crimes (real or otherwise) without going through the court system first. Even though the president must "take care that the laws be faithfully executed," their power to enforce the laws is somewhat limited by the court system here. This is good, when you consider the frightening nature of some of the punishments that the laws authorize for crimes. (Fines, imprisonment, and even execution; depending on the seriousness of the crime, as perceived by the Congress.) A president with unlimited power to enforce these laws would thus have arbitrary power to punish people anytime he (or she) said that these laws were violated (including at times when they were not). Thus, the president and the police force are required to prove these charges through a fair trial in a court system, which is a major check on the executive branch and its power. Since many of these specific judicial restraints on the executive branch came through the later amendments in the Bill of Rights, I discuss these checks elsewhere in another post dedicated exclusively to that subject. Suffice it to say for our purposes here, though, that the original Constitution contained some important judicial checks on the executive branch; but that no discussion of this subject would be complete without a close examination of the Bill of Rights, and its specific regulations of the criminal justice system.

United States penitentiary on Alcatraz Island

Power to strike down laws deemed "unconstitutional"

But the most important power possessed by the judiciary may be its power to strike down laws that it deems "unconstitutional," or violating the spirit of the "supreme law of the land" that is the Constitution itself. This power is not explicitly granted to the courts by any passages in the Constitution itself; although it seems very clear that it is strongly implied in the Constitution, by certain passages limiting the power of the other branches. As an example, I will quote one of the clearest of them now, which limits the power of the Congress: "No bill of attainder or ex post facto law shall be passed." (Source: Article 1, Section 9, Paragraph 3) Before proceeding further, I should clarify that an "ex post facto" law is one that declares something you did on a prior occasion to be "illegal," even though it was perfectly legal at the time - thus making it illegal only "after the fact" (or in the Latin phrase, "ex post facto"). Another type of law that would fall into this category would be one that increased the punishment for a crime after the fact, to a greater punishment that was not authorized when the act was committed. A "bill of attainder," by contrast, is a law passed by a legislature that declares a particular person (or persons) guilty of a crime and imposes a punishment, often without a trial - something that would usurp the proper power of the judicial branch, if it were allowed to be implemented (a truly frightening power, to the Founding Fathers and us).

Alexander Hamilton

Why we sometimes need this power

Thus, Alexander Hamilton argued, what are the courts to do when faced with a law of this kind that is clearly unconstitutional? Are they to judge someone guilty of having violated this law anytime the executive branch prosecutes a case on such a basis, or are they to steadfastly and resolutely refuse to do so, on the grounds that these laws are clearly prohibited by the Constitution - or in other words, "unconstitutional"? The latter is clearly the case, as Alexander Hamilton once argued in the Federalist Papers: "The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing." (Source: Federalist No. 78)

Interior of the United States Supreme Court

Potential for abuse

But can't this power be abused, it might be argued, by declaring a law to be "unconstitutional" - when, in fact, it is not so at all? The answer is clearly "yes," but the only surefire way to prevent a power from being abused is to never grant anyone this power at all - something which clearly cannot be done, when there are certain explicit limits beyond which the legislative power cannot go (such as those mentioned in the Constitution); which cannot be enforced by any mechanism other than this power. There is only one major "check" upon the judiciary, I am sad to say, which is to make sure that the power of appointing them to begin with is exercised wisely and well. Thus, a few words about that power of appointing them might well be in order here:

John Jay, the first chief justice of the Supreme Court (appointed to that position by George Washington)

The power of appointing judges (and who has it)

The Constitution says that the president "shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments." (Source: Article 2, Section 2, Paragraph 2) This is why the controversies over the appointment of federal judges - and particularly, judges of the Supreme Court - are so heated and intense: the stakes are high, and the appointment is usually for life.

The need to be careful about who we appoint

Thus, we must be careful about who we appoint to these judicial positions.

Footnote to this section:

Montesquieu once said that "Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary power, for the judge would then be the legislator. Were it joined to the executive power, the judge might behave with all the violence of an oppressor." (Source: "The Spirit of Laws," Book XI, Chapter 6, as quoted by James Madison in Federalist No. 47)

Amendment process in the Constitution

"The migration or importation of such persons as any of the states now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year 1808, but a tax or duty may be imposed on such importations, not exceeding 10 dollars for each person."

Article 1, Section 9, Paragraph 1 (a. k. a. the "Slave Importation Clause")which contained one of the few parts of the Constitution that was temporarily immune to constitutional amendments

Slave who was brutally whipped

Compromises over slavery are a thing of the past

The original Constitution included many compromises over slavery - such as the Three-Fifths Clause (Source: Article 1, Section 2, Paragraph 3), the Slave Importation Clause (Source: Article 1, Section 9, Paragraph 1), and the Fugitive Slave Clause (Source: Article 4, Section 2, Paragraph 3) - perhaps the most detested clause of them all in the Constitution. These compromises, however, are no more; because slavery has been completely abolished in American society, by the mechanism of constitutional amendment. How are these amendments, then, to be done?

Abraham Lincoln, the president who abolished slavery by means of a constitutional amendment

Amendments are "valid to all intents and purposes" as part of the Constitution

The answer is that the Constitution specifies an explicit process for how constitutional amendments are to be done. In the words of the Constitution: "The Congress, whenever two-thirds of both houses shall deem it necessary, shall propose amendments to this constitution, or on the application of the legislatures of two-thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this constitution, when ratified by the legislatures of three-fourths of the several states, or by conventions in three-fourths thereof, as the one or the other mode of ratification may be proposed by the Congress" (Source: Article 5).

Some clauses were temporarily immune to constitutional amendment (and one permanently)

The only things that could not be touched by constitutional amendment are that "no amendment which may be made prior to the year 1808" could influence certain parts of the Constitution that dealt with slavery (such as the Slave Importation Clause that I quoted earlier), and that "no state, without its consent, shall be deprived of its equal suffrage in the Senate." (Source: Article 5) The window for the abolition of the slave trade (and slavery generally) has long since passed; and depriving states of their "equal suffrage in the Senate" has not been proposed by anyone of late; so the power has virtually limitless latitude to affect anything else in the Constitution, provided that the amendment process is followed to the letter (which it has been for a total of 27 amendments - but that's a subject for another post). Since I have discussed the Slave Importation Clause in some detail in this post, it may be appropriate here to quote the text of the abolition of slavery by the Thirteenth Amendment, which was ratified (long after the year 1808) in 1865. Here is the quote: "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. Congress shall have power to enforce this article by appropriate legislation." (Source: Thirteenth Amendment)

United States Bill of Rights

The Bill of Rights and the abolition of slavery: The most important amendments

Besides the Thirteenth Amendment (which abolished slavery), the most important amendments to the Constitution are those found in the Bill of Rights, the collective name for the first ten amendments to the Constitution. In these amendments are found guarantees of freedom of speech, freedom of the press, rights for accused persons, and many other restrictions on the power of the government. These amendments to the Constitution are the parts most thought of when people discuss the Constitution, although they were not included in the original Constitution at all - a testament to the importance of the provision for how the constitution may be amended. If it were too easy to amend, I should make note here, the constitution's system of checks and balances could be eroded by a single act of Congress; but if it were too hard to amend, the wonderful amendments put in place since this time could never have happened; which would have been a terrible tragedy for this country - perhaps even an unmitigated disaster. Thus, the Constitution's provisions might be viewed as "just right" about how difficult it should be to change an amendment.

The "supreme law of the land" (with some closing remarks)

James Madison, the "Father of the Constitution"

Finally, the Constitution said that "The ratification of the conventions of nine states, shall be sufficient for the establishment of this constitution between the states so ratifying the same" (Source: Article 7); and that "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; and the judges in every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding." (Source: Article 6, Section 2) The ratification process was long since completed (see my post about this for further details), and the Constitution has been the "supreme law of the land" for over 200 years. Its record of success speaks for itself.

Another picture of James Madison

How much did the Constitution accomplish? (An answer from a Founding Father)

As James Madison wrote in the Federalist Papers, "The real wonder is that so many difficulties should have been surmounted, and surmounted with a unanimity almost as unprecedented as it must have been unexpected. It is impossible for any man of candor to reflect on this circumstance without partaking of the astonishment. It is impossible for the man of pious reflection not to perceive in it a finger of that Almighty hand which has been so frequently and signally extended to our relief in the critical stages of the revolution." (Source: Federalist No. 37)

United States Constitution

The Constitution was a smashing success

In short, the Constitution was a smashing success, and made America great for over two centuries. We would do well to heed it in America, and those outside this country would do well to emulate it, if they wish to experience that same greatness.

"Done in convention by the unanimous consent of the states present the seventeenth day of September in the year of our Lord one thousand seven hundred and eighty-seven and of the independence of the United States the twelfth. In witness whereof We have hereunto subscribed our Names ... "

Closing language of the Constitution

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Part of a series about
The Constitution

Influences on the Constitution

Hobbes and Locke: Anarchy, social contract theory, and unalienable rights
Public and private property: When can you take away someone's private property as taxes?
Polybius: A commentator on the "mixed constitution" of the Roman Republic
Magna Carta (1215): The creation of Parliament, and the limits upon the power of the King
Sir Edward Coke: The Petition of Right (1628) and other important writings
Virginia Declaration of Rights (1776): Another influence on the United States Bill of Rights
The Declaration of Independence (July 4, 1776): Philosophically important
Representative government: The advantages of a republic over a direct democracy
Baron de Montesquieu: Theory of separation of powers and checks & balances

The Constitution itself, and the story behind it

Convention at Philadelphia: The writing of the Constitution (1787)
States' rights: The conflict between the "several states" and the federal government
The Congress: Its power to make laws, and the president's power to veto them (in some cases)
Congress versus the president: Five limits on presidential power (besides impeachment)
Powers of Congress: A few reasons why the Congressional elections are so important
Elected officials: A few ways that the Constitution keeps our politicians under control
Frequency of elections: So how long do all of these people serve, anyway?
Representation: So who decides how many votes each state gets?
Slavery: The complicated legacy of the "Three-Fifths Clause"
The presidency: Making decisions for the police, military, and foreign diplomacy
Impeachment and removal: The most dramatic checks upon the power of presidents
The courts: "Good behaviour," some important judicial powers, and how they're appointed
Miscellaneous: Amendment process, "supreme law of the land," and some closing remarks

Debates over the Constitution, then and since

Debates over ratification: Whether to adopt the Constitution in the first place
The "Federalist Papers": Frequently asked questions about them, and why they're important
Who is "Publius"?: The secret pen name of the men who wrote the Federalist Papers
Debates over checks & balances: Do they actually conflict with separation of powers?
The Bill of Rights: Important in the debates over ratification (adopted 1791)
The First Amendment: Debates over freedom of religion, and public "establishment" of religion
The First Amendment: Freedom of speech, freedom of the press, and peaceable assemblies
Rights to fair trial: Judicial restraints on the power of the police and the president
Rights of the accused: The balance between individual protections and criminal justice
Congressional pay: The amendment that never made it into the Bill of Rights
Abolishing slavery: The things that led up to the famous antislavery amendment
Backup plans: Vacancy, disability, and presidential elections without a clear majority
Voting rights: Some important amendments about who is allowed to vote in this country

Epilogue: Some thoughts about civics education

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