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Checks And Balances

Checks and balances

Separation of powers is a model of democracy that involves the separation of political power between 3 branches of the state: The Executive, the Legislature, and the Judiciary. In the "separation of powers" model, each branch is prevented from exerting power in the field of responsibility of another branch. Nonetheless each branch of the state may be empowered to exert checks on the actions of the other branches.

Checks and balances

The phrase "checks and balances" was also coined by Montesquieu. In a system of government with competing sovereigns (such as a multi-branch government or a federal system), "checks" refers to the ability, right, and responsibility of each power to monitor the activities of the other(s); "balances" refers to the ability of each entity to use its authority to limit the powers of the others, whether in general scope or in particular cases. Keeping each independent entity within its prescribed powers can be a delicate process. Public support, tradition, and well-balanced tactical positions do help maintain such systems. The essential difference between the separation of powers as developed in common law theory and in France was that in the former, the checks and balances inherent in the mixed constitution and in Montesquieu's analysis were incorporated into the doctrine. In France, on the other hand, the judges were regarded as sources themselves of tyranny and not liberty as in England, and the hostility of Jean-Jacques Rousseau to any check or limit on the popular will, combined to establish the 'non-interference' model of the separation of powers.

The three-branch system

Case study: The United States

Main article: Separation of powers under the United States Constitution Famously, the framers of the United States Constitution are said to have taken the best of many concepts including the then-new concept of the separation of powers in drafting the constitution. The concept is also prominent in the state governments of the United States; as colonies of Britain, the founding fathers felt that the American states had suffered an abuse of the broad power of the monarchy. As a remedy, the American Constitution limits the powers of the federal government through several means, but in particular by dividing up the power of the government among three competing branches of government. Each branch checks the actions of the others and balances their powers in some way. The following table describes the various "checks and balances" in details.

Branch	Constitutional Powers	Executive counterbalance	Legislative counterbalance	Judicial counterbalance
Executive (President)	Operational command of government services and contracts Sole power to wage war (operational command of the military) Responsibility for negotiating treaties Power to appoint judges, diplomats, cabinet, and department heads Police powers of arrest, detainment, and search Prosecutes crimes Collects taxes	Civilian and military chains of command constrain low-level executive officials to obey the policies of high-level officials. Extensive bureaucracy limits ability of executive to make extensive changes in operational practices.	Power to determine what laws exist Power to write laws to constrain the internal operation of government Power to write laws limiting searches, arrests, and detentions Power to make laws concerning what regulations may be declared by the executive power to declare war Responsibility for ratifying treaties (Senate) Responsibility for confirming executive appointments (Senate) Power to set the budget of the executive Power to impeach and remove executive officers (two-thirds majority) Power to set limits	Acts as a neutral mediator when the executive brings criminal or civil enforcement actions, and has the power to stop inappropriate enforcement Issues warrants for searches and arrests May declare actions of the executive to be illegal and/or unconstitutional Determines which laws apply to any given case
Legislative (Congress)	Power to write laws Power to enact taxes, authorize borrowing, and set the budget Sole power to declare war Various other powers of the federal government Subpoena (investigative) power	May veto laws (but this may be overridden by a two-thirds majority in both houses) May refuse to enforce certain laws May refuse to spend money allocated for certain purposes Sole power to wage war (operational command of the military) Responsibility for making declarations (for example, declaring a state of emergency) and promulgating lawful regulations and executive orders Executive privilege (refusal to submit to legislative subpoena) Use of the bully pulpit to propose and advocate for laws	Each house is responsible for policing its own members. Powers internal to the legislature are split between its two houses, the Senate and the House of Representatives. Only the House may originate spending bills. Only the House may impeach the President, but only the Senate may remove him or her from office. Only the Senate approves treaties and nominees. Each house can prevent the other from passing any law.	May declare laws unconstitutional and unenforceable Determines which laws apply to any given case
Judicial (Supreme Court)	Sole power to interpret the law and apply it to particular disputes Power to determine the disposition of prisoners Appointed for life Power to compel testimony and the production of documents	Responsibility to appoint judges Power to grant pardons to federal offenders	Sole power to pass Constitutional amendments (by two-thirds majority and with the consent of three-quarters of the states) Power to determine the size and structure of the courts Power to determine the budgets of the courts Responsibility for confirming judicial nominees Power to impeach and remove judges Power to determine courts' jurisdiction (except Supreme Court's original jurisdiction)	The appeals process enforces uniform policies in a top-down fashion, but gives discretion in individual cases to low-level judges (The amount of discretion depends upon the standard of review, determined by the type of case being reviewed.) May only rule in cases of an actual dispute brought between actual petitioners Polices its own members

Maintaining balance

The independence of the executive and legislative branches is partly maintained by the fact that they are separately elected, and are held directly accountable to the public. There are also judicial prohibitions against certain types of interference in each others' affairs. (See "separation of powers" cases in the List of United States Supreme Court cases.) Judicial independence is maintained by life appointments, with voluntary retirement, and a high threshold for removal by the legislature. The legal mechanisms constraining the powers of the three branches depend a great deal on the popular sentiment of the people of the United States. Popular support establishes legitimacy, and makes possible the physical implementation of legal authority. National crises (such as the Civil War, the Great Depression, pre-Pearl Harbor World War II, the Vietnam War) have been the times at which the principle of separation of powers has been most endangered, through official "misbehavior" or through the willingness of the public to sacrifice such principles if more pressing problems are solved. In the present day, the American state is remarkably stable, and all three branches have largely enjoyed their sovereign powers continuously since the founding of the republic. The system of checks and balancing is also self-reinforcing. Potential abuse of power is deterred and the legitimacy and sustainability of any power grab is undermined by the ability of the other two branches to take corrective action. This is intended to reduce opportunities for tyranny and to increase the general stability of the government. However, as James Madison wrote in Federalist 51 regarding the ability of each branch to defend itself from actions by the others, "But it is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates." Bicameralism was, in part, intended to reduce the relative power of the legislature, by turning it against itself, by having "different modes of election and different principles of action." (This is one of the arguments against the popular election of Senators, which was instituted by the Seventeenth Amendment.) But when the legislature is unified, it wields dominant, unbalanced, power over the other branches. The words "checks" and "balances" never actually appear together in the Constitution or the Federalist Papers, except once, in Federalist 9, where Alexander Hamilton was referring to the balancing features of the proposed bicameral system.

Fourth branch: Independent executive agencies

The federal executive is a very large bureaucracy, and due to civil service rules, most mid- and low-level employees do not change when a new person becomes President. (New high-level officials are usually appointed and must be confirmed by the Senate.) Moreover, semi-independent agencies (such as the Federal Reserve or the Federal Communications Commission) may be created by the legislature within the executive, which exercise legally defined regulatory powers. High-level regulators are appointed by the President and confirmed by the legislature, and must follow the law and perhaps certain lawful executive orders. But they often sit for long, fixed terms and enjoy reasonable independence from other policy makers. Because of its importance to modern governance, the regulatory bureaucracy of the executive is sometimes referred to as a "fourth" branch of government.

Fourth branch: The press

The press has also been described as a "fourth power" because of its considerable influence over public opinion (which it wields by widely distributing facts and opinions about the various branches of government). Public opinion in turn affects the outcome of elections. The press is also sometimes referred to as the Fourth Estate, a term of historical French origin, which is not related to the modern three-branch system of government. The First Amendment to the United States Constitution explicitly guarantees freedom of the press, a principle which was later extended to state and local governments, in addition to the federal government.

State and local governments

The American states mirror the executive/legislative/judicial split of the federal government. Major cities tend to do so as well, but in general, the arrangements for local and regional governments vary widely. Because the judicial branch is often a part of a state or county government, the geographic jurisdiction of local judges is often not coterminous with municipal boundaries. In many American states and local governments, executive authority and law enforcement authority are separated by allowing citizens to directly elect public prosecutors (district attorneys and state attorneys-general). In some states, judges are also directly elected. Many localities also separate special powers from their executive and legislative branches, through the direct election of police chiefs, school boards, transit agency boards, park commissioners, insurance commissioners, and the like. Juries (groups of randomly selected citizens) also have an important role in the check-and-balance system. They have the sole authority to determine the facts in most criminal and civil cases, acting as a powerful buffer against arbitrary enforcement by the executive and judicial branches. In many jurisdictions they are also used to determine whether or not a trial is warranted, and in some places Grand Juries have independent investigative powers with regard to government operations.

Three-branch systems around the world

Parliamentary systems

The United States uses a presidential system of government, but around the world, a more common system is the parliamentary system. In parliamentary democracies, the executive branch is dependent or is in some sense part of the legislature.

Case study: United Kingdom

See also: Constitution of the United Kingdom Separation of powers has never been a prominent part of the political thought of the United Kingdom. The Executive is drawn from the Legislature, and is subordinate to it. Since the Executive is drawn from the leadership of the dominant party in parliament, party discipline often results in a de facto situation of Executive control of the Legislature, although in reality MPs can reject their leadership and vote against them. The House of Lords is the highest court of appeal for civil matters in the United Kingdom and for criminal matters for England, Wales and Northern Ireland. These appeals are heard by Lords of Appeal in Ordinary (Law Lords) who, in effect, are a committee of the House of Lords. This means that the highest court of appeal is part of the House of Lords and thus part of the legislature. At times, various Home Secretaries have taken decisions which in other countries are judicial, such as the release, or continued detention, of prisoners. Thus it can be seen that in the United Kingdom the three "powers" are not separated, but are entwined. However, this has never threatened British civil government. In contrast, many countries which have adopted separation of powers (especially in Latin America) have suffered from instability (coups d'etat, military dictatorships etc.). Some observers believe that no obvious case exists in which such instability was prevented by the separation of powers. Parliamentary sovereignty is the concept in British constitutional law that a parliament has ultimate authority over all affairs of government, including the monarch and the courts. In theory, this seems to be in direct opposition to the concept of separation of powers. In the British system, however, there is a considerable amount of de facto independence among agents exercising various functions, and Parliament is limited by various legal instruments, international treaties and constitutional conventions. The Crown has distinct functions in its different spheres. Curiosities - such as the Lord Chancellor having an executive, legislative, and judicial role; and the House of Lords being a legislative chamber, but including some senior judges - are in the process of reform. The Constitutional Reform Act 2005 seeks to bring stronger separation of powers to the British system. Some have defended the current system on the grounds that it discourages judges from making law by judicial rather than legislative means.

Taiwan (Republic of China) : Five branches

Some countries take the doctrine further than the three-branch system. The government of the Republic of China, for example, has five branches: the Executive Yuan, Legislative Yuan, Judicial Yuan, Control Yuan, and Examination Yuan. (Some European countries have rough analogues to the Control Yuan in the forms of ombudsmen, separate from the executive and the legislature.) However, as Taiwan is a young democracy, the relationship between the executive branch and the legislative branch is often poorly defined. In practice, there are a number of problems with the current system in Taiwan. The president has neither the power to veto nor the ability to dissolve the legislature and call new elections. Therefore if there are no negotiations between the legislature and the president, and the president's party does not have a majority in the legislature, there is almost complete political paralysis. http://www.fpri.org/enotes/asia.20020418.rigger.taiwanpoliticalparalysis.html

The press around the world

Main articles: Freedom of the press, public broadcasting Media freedom is generally considered to be a core supporting mechanism for democratic governments, and it is found in all strong democracies, regardless of the organizational principle of the "branches" of government. Many governments financially support public broadcasting in one way or another, but in strong democracies, even these media outlets enjoy strong editorial independence from the government. An independent press acts as a powerful check against all forms of government, because it provides information about its activities to the public.

Criticisms

In parliamentary systems such as the United Kingdom the three "powers" are not separated. However, this has not threatened British stability. In contrast, many countries which have adopted separation of powers (especially in Latin America) have suffered from instability (coups d'etat, military dictatorships etc.). Some observers believe that no obvious case exists in which such instability was prevented by the separation of powers. It is possible that the existence of a strong independent executive encourages instability, because it is less concensus-orientated than a parliamentary system, and because it accustoms the population political elite to a excessively dominant individual leader. The categories of the functions and corresponding powers of government are inclined to become blurred when it is attempted to apply them to the details of a particular constitution. Some hold that the true distinction lies not in the nature of the powers themselves, but rather in the procedure by which they are exercised. There is no current constitutional system which adopts a complete separation of powers, in the sense of a distribution of the three functions among three independent sets of organs with no overlapping or coordination. Some of the early American States and the French Constitution of 1791 tried strictly to give effect to this doctrine but failed.

Related restraint-of-power concepts

- Federalism - (also known as vertical separation of powers) Preventing abuse by dividing governing powers, the separation is usually between municipal, provincial and national governments. See also subsidiarity.
- Rule of law - Prevents arbitrary exercise of thr executive power, preserves general and minority rights, and promotes stability and predictability.
- Democracy and civil society - Attempts to constrain elected branches of government to act in the public interest, not in self-interest.
- Separation of church and state or Laïcité - Ensures freedom of religion by preventing government interference in its practice. Also constrains the power of government by maintaining freedom of conscience and belief.
- Civilian control of the military - Helps prevent dictatorship through military rule.
- Central bank

External links

- Wikibooks: [http://en.wikibooks.org/wiki/The_Three_Branches The Three Branches]
- [http://www.usconstitution.net/consttop_sepp.html Separation of Powers Topic at USConstitution.net]
- Historical [http://air.fjc.gov/history/topics/topics_ji_bdy.html impeachments] of federal judges.
- A [http://www.institutionalreform.org survey instrument] to reveal the relative strengths of different spheres of government and society to guard against political corruption Category:Political science ms:Pembahagian kuasa ja:権力分立

DemocracY

Democracy

Mixed constitution

Mixed government, also known as a mixed constitution, is a form of government that integrated facets of democracy, oligarchy, and monarchy. Mixed governments means that there are some issues (often defined in a constitution) where the state is governed by the majority of the people, while in some other issues (also often defined in a constitution) the state is governed by few or by a single person.

Ancient Greek philosophers

Plato in his book The Republic divided governments into four basic types:
- democracy - government by the many
- oligarchy - government by the few (often referred to as government by "aristocracy")
- timocracy - government by socio-military complexes (i.e., the form of government used in Sparta)
- monarchy/tyranny - government by the one He found flaws with all of them and thus concluded that none were suitable systems of government. Aristotle largely embraced Plato's ideas and in his Politics three types (sans Timocracy) are discussed in detail. Aristotle views aristocracy to be the ideal form of government but he observes that none of the three are stable and that states will cycle between the three forms in a violent and chaotic process known as the kyklos. In his Politics he lists a number of theories of how to create a stable government. One of these options is creating a government that is a mix of all three forms of government. For Aristotle the idea is only one of many and he pays only scant attention to it. Polybius argued that most states have a government system that is composed of more than one of these basic principles, which then was called a mixed government system.

Roman Era

The ideal of mixed government was popularized by Polybius who saw the Roman Republic as a manifestation of Aristotle's theory. Monarchy was embodied by the consuls, the aristocracy by the Senate, and democracy by the elections and great public gatherings of the assemblies. Each institution complements and also checks the others, presumably guaranteeing stability and prosperity. Polybius also describes Sparta as an earlier manifestation of this ideal. Polybius was very influential and his ideas were embraced by Cicero.

Renaissance and Enlightenment

Cicero became extremely well regarded during the Renaissance and many of his ideas were embraced. Polybius was also rediscovered and the positive view of mixed governments became a central aspect of Renaissance political science closely integrated into the developing notion of republicanism. Mixed government theories were also popular in the Enlightenment and were discussed in detail by Montesquieu. According to some scholars the notion also influenced the writers of the United States Constitution who based the idea of checks and balances upon the ancient theory.

Modern views

One school of scholarship, based mainly in the United States, felt that a mixed government was the central characteristic of a republic. According to Frank Lovett this school is largely defunct.[http://www.ajps.org/articles/49.3.Lovett.ms31301]

Jean-Jacques Rousseau

Jean-Jacques Rousseau (June 28, 1712 – July 2, 1778) was a Franco-Swiss philosopher, writer, political theorist, and self-taught composer of The Age of Enlightenment. Rousseau's political ideas influenced the French Revolution, the development of socialist theory, and the growth of nationalism. His legacy as a radical and revolutionary is perhaps best demonstrated by his most famous line, from his most important work, The Social Contract: "Man is born free, and everywhere he is in chains."

Biography of Rousseau

Rousseau was born in Geneva, Switzerland, and throughout his life described himself as a citizen of Geneva. His mother, Suzanne Bernard Rousseau, died a week later due to complications from childbirth, and his father Isaac, a failed watchmaker, abandoned him in 1722 to avoid imprisonment for fighting a duel. His childhood education consisted solely of reading Plutarch's Lives and Calvinist sermons. Rousseau left Geneva on March 14, 1728, after several years of apprenticeship to a notary and then an engraver. He then met Françoise-Louise de Warens, a French Catholic baroness who would later became Rousseau's lover, even though she was twelve years his elder. Under the protection of de Warens, he converted to Catholicism. Rousseau spent a few weeks in seminary and beginning in 1729 six months at the Annecy Cathedral choir school. As well, he spent much time travelling and engaging in a variety of professions; for instance, in the early 1730s he worked as a music teacher in Chambéry. In 1736 he enjoyed a last stay with de Warens near Chambéry, which he found idyllic, but by 1740 he had departed again, this time to Lyon to tutor the young children of Gabriel Bonnet de Mably. In 1742 Rousseau moved to Paris in order to present the Académie des Sciences with a new system of musical notation he had invented, which was rejected as useless and unoriginal. From 1743 to 1744, he was secretary to the French ambassador in Venice, whose republican government Rousseau would refer to often in his later political work. After this, he returned to Paris, where he befriended and lived with Thérèse Lavasseur, an illiterate seamstress who bore him five children. As a result of his theories on education and child-rearing, Rousseau has often been criticized by Voltaire and modern commentators for putting his children in an orphanage as soon as they were weaned. In his defense, Rousseau explained that he would have been a poor father, and that the children would have a better life at the foundling home. Voltaire While in Paris, he became friends with Diderot and beginning in 1749 contributed several articles to his Encyclopédie, beginning with some articles on music. His most important contribution was an article on political economy, written in 1755. Soon after, his friendship with Diderot and the Encyclopedists would become strained. In 1749, on his way to Vincennes to visit Diderot in prison, Rousseau heard of an essay competition sponsored by the Académie de Dijon, asking the question whether the development of the arts and sciences has been morally beneficial. Rousseau's response to this prompt, answering in the negative, was his 1750 "Discourse on the Arts and Sciences", which won him first prize in the contest and gained him significant fame. Rousseau claimed that during the carriage ride to visit Diderot, he had experienced a sudden inspiration on which all his later philosophical works were based. This inspiration, however, did not cease his interest in music and in 1752 his opera Le Devin du village was performed for King Louis XV. In 1754, Rousseau returned to Geneva, where he reconverted to Calvinism and regained his official Genevan citizenship. In 1755 Rousseau completed his second major work, the Discourse on the Origin and Basis of Inequality Among Men. Beginning with this piece, Rousseau's work found him increasingly in disfavor with the French government. Rousseau in 1761 published the successful romantic novel Julie, ou la nouvelle Héloïse (The New Heloise). In 1762 he published two major books, first The Social Contract (Du Contrat Social) in April and then Emile, or On Education in May. Both books criticized religion and were banned in both France and Geneva. Rousseau was forced to flee arrest and made stops in both Bern and Motiers in Switzerland. While in Motiers, Rousseau wrote the Constitutional Project for Corsica (Projet de Constitution pour la Corse). Facing criticism in Switzerland – his house in Motiers was stoned in 1765 – Rousseau in January of 1766 took refuge in with the philosopher David Hume in Great Britain, but after 18 months he left because he believed Hume was plotting against him[http://www.connect.net/ron/davidhume.html]. Rousseau returned to France under the name "Renou," although officially he was not allowed back in until 1770. In 1768 he married Thérèse, and in 1770 he returned to Paris. As a condition of his return, he was not allowed to publish any books, but after completing his Confessions, Rousseau began private readings. In 1771 he was forced to stop this, and this book, along with all subsequent ones, was not published until after his death in 1782. Rousseau continued to write until his death. In 1772, he was invited to present recommendations for a new constitution for Poland, resulting in the Considerations on the Government of Poland, which was to be his last major political work. In 1776 he completed Dialogues: Rousseau Judge of Jean-Jacques and began work on the Reveries of the Solitary Walker. In order to support himself through this time, he returned to copying music. Because of his partially-justified paranoia, he did not seek attention or the company of others. While taking a morning walk on the estate of the Marquis de Giradin at Ermenonville (28 miles northeast of Paris), Rousseau suffered a hemorrhage and died on July 2, 1778. Rousseau was initially buried on the Ile des Peupliers. His remains were moved to the Panthéon in Paris in 1794, sixteen years after his death. The tomb was designed to resemble a rustic temple, to recall Rousseau's theories of nature. In 1834, the Genevan government reluctantly erected a statue in his honor on the tiny Ile Rousseau in Lake Geneva. In 2002, the Espace Rousseau was established at 40 Grand-Rue, Geneva, Rousseau's birthplace.

Philosophy of Rousseau

Nature vs. society

Rousseau saw a fundamental divide between society and human nature. Rousseau contended that man was good by nature, a "noble savage" when in the state of nature (the state of all the "other animals", and the condition humankind was in before the creation of civilization and society), but is corrupted by society. He viewed society as artificial and held that the development of society, especially the growth of social interdependence, has been inimical to the well-being of human beings. Society's negative influence on otherwise virtuous men centers, in Rousseau's philosophy, on its transformation of amour de soi, a positive self-love, into amour-propre, or pride. Amour de soi represents the instinctive human desire for self-preservation, combined with the human power of reason. In contrast, amour-propre is not natural but artificial and forces man to compare himself to others, thus creating unwarranted fear and allowing men to take pleasure in the pain or weakness of others. Rousseau was not the first to make this distinction; it had been invoked by, among others, Vauvenargues. In "Discourse on the Arts and Sciences" Rousseau argued that the arts and sciences had not been beneficial to humankind, because they were advanced not in response to human needs but as the result of pride and vanity. Moreover, the opportunities they created for idleness and luxury contributed to the corruption of man. He proposed that the progress of knowledge had made governments more powerful and had crushed individual liberty. He concluded that material progress had actually undermined the possibility of sincere friendship, replacing it with jealousy, fear and suspicion. His subsequent Discourse on Inequality tracked the progress and degeneration of mankind from a primitive state of nature to modern society. He suggested that the earliest human beings were isolated semi-apes who were differentiated from animals by their capacity for free will and their perfectibility. He also argued that these primitive humans were possessed of a basic drive to care for themselves and a natural disposition to compassion or pity. As humans were forced to associate together more closely, by the pressure of population growth, they underwent a psychological transformation and came to value the good opinion of others as an essential component of their own well being. Rousseau associated this new self-awareness with a golden age of human flourishing. However, the development of agriculture and metallurgy, private property and the division of labour led to increased interdependence and inequality. The resulting state of conflict led Rousseau to suggest that the first state was invented as a kind of social contract made at the suggestion of the rich and powerful. This original contract was deeply flawed as the wealthiest and most powerful members of society tricked the general population, and so cemented inequality as a permanent feature of human society. Rousseau's own conception of the social contract can be understood as an alternative to this fraudulent form of association. At the end of the Discourse on Inequality, Rousseau explains how the desire to have value in the eyes of others, which originated in the golden age, comes to undermine personal integrity and authenticity in a society marked by interdependence, hierarchy, and inequality.

Political theory

hierarchy]

The Social Contract

Perhaps Rousseau's most important work is The Social Contract, which outlines the basis for a legitimate political order. Published in 1762 it became one of the most influential works of abstract political thought in the Western tradition. Building on his earlier work, such as the Discourse on Inequality, Rousseau claimed that the state of nature eventually degenerates into a brutish condition without law or morality, at which point the human race must adopt institutions of law or perish. In the degenerate phase of the state of nature, man is prone to be in frequent competition with his fellow men while at the same time becoming increasingly dependent on them. This double pressure threatens both his survival and his freedom. According to Rousseau, by joining together through the social contract and abandoning their claims of natural right, individuals can both preserve themselves and remain free. This is because submission to the authority of the general will of the people as a whole guarantees individuals against being subordinated to the wills of others and also ensures that they obey themselves because they are, collectively, the authors of the law. While Rousseau argues that sovereignty should thus be in the hands of the people, he also makes a sharp distinction between sovereign and government. The government is charged with implementing and enforcing the general will and is composed of a smaller group of citizens, known as magistrates. Rousseau was bitterly opposed to the idea that the people should exercise sovereignty via a representative assembly. Rather, they should make the laws directly. It has been argued that this would prevent Rousseau's ideal state being realized in a large society, though in modern times, communication may have advanced to the point where this is no longer the case. Much of the subsequent controversy about Rousseau's work has hinged on disagreements concerning his claims that citizens constrained to obey the general will are thereby rendered free.

Education

Rousseau set out his views on education in Emile, a semi-fictitious work detailing the growth of a young boy of that name, presided over by Rousseau himself. He brings him up in the countryside, where, he believes, humans are most naturally suited, rather than in a city, where we only learn bad habits, both physical and intellectual. The aim of education, Rousseau says, is to learn how to live, and this is accomplished by following a guardian who can point the way to good living. The growth of a child is divided into three sections, first to the age of about 12, when calculating and complex thinking is not possible, and children according to his deepest conviction live like animals. Second, from 10 or 12 to about 15, when reason starts to develop, and finally from the age of 15 onwards, when the child develops into an adult. At this point, Emile finds a young woman to complement him. The book is based on Rousseau's ideals of healthy living. The boy must work out how to follow his social instincts and be protected from the vices of urban individualism and self-consciousness.

Religion

Rousseau was most controversial in his own time for his views on religion. His view that man is good by nature conflicts with the original sin doctrine by Paul of Tarsus and his theology of nature expounded by the Savoyard Vicar in Emile led to the condemnation of the book in both Calvinist Geneva and Catholic Paris. In the Social Contract he claims that true followers of Jesus would not make good citizens. This was one of the reasons for the book's condemnation in Geneva. Rousseau attempted to defend himself against critics of his religious views in his Letter to Christophe de Beaumont (the Archbishop of Paris).

Legacy

Rousseau's ideas were influential at the time of the French Revolution although since popular sovereignty was exercised through representatives rather than directly, it cannot be said that the Revolution was in any sense an implementation of Rousseau's ideas. Subsequently, writers such as Benjamin Constant and Hegel sought to blame the excesses of the Revolution and especially the Reign of Terror on Rousseau, but the justice of their claims is a matter of controversy. Rousseau was one of the first modern writers to seriously attack the institution of private property, and therefore is often considered a forebearer of modern socialism and communism (see Karl Marx, though Marx rarely mentions Rousseau in his writings). Rousseau also questioned the assumption that majority will is always correct. He argued that the goal of government should be to secure freedom, equality, and justice for all within the state, regardless of the will of the majority (see democracy). One of the primary principles of Rousseau's political philosophy is that politics and morality should not be separated. When a state fails to act in a moral fashion, it ceases to function in the proper manner and ceases to exert genuine authority over the individual. The second important principle is freedom, which the state is created to preserve. Rousseau's ideas about education have profoundly influenced modern educational theory. In Emile he differentiates between healthy and "useless" crippled children. Only a healthy child can be the rewarding object of any educational work. He minimizes the importance of book-learning, and recommends that a child's emotions should be educated before his reason. He placed a special emphasis on learning by experience. John Darling's 1994 book Child-Centred Education and its Critics argues that the history of modern educational theory is a series of footnotes to Rousseau. In his main writings Rousseau identifies nature with the primitive state of savage man. Later he took nature to mean the spontaneity of the process by which man builds his egocentric, instinct based character and his little world. Nature thus signifies interiority and integrity, as opposed to that imprisonment and enslavement which society imposes in the name of progressive emancipation from coldhearted brutality. Hence, to go back to nature means to restore to man the forces of this natural process, to place him outside every oppressing bond of society and the prejudices of civilization. It is this idea that made his thought particularly important in Romanticism, though Rousseau himself is sometimes regarded as a figure of The Enlightenment.

Notes

# Interestingly, though all scholars of note consider this to be Rousseau's epigramatic statement, there is less than universal agreement as to its translation. Because of a particular ambiguity in French, the line "L'homme est né libre, et partout il est dans les fers." can just as accurately be translated into English as "Man was born free but everywhere he is in chains." Though subtle, the change in translation can yield an immense difference in the significance of Rousseau's basic thesis. Is he positing that each individual who comes into the world every day is born free, but then society enslaves him? Or is he rather saying that Man was once a free creature who--as a body politic and social--has been enslaved by a corrupting society? Many scholars argue that the latter better reflects the analysis that follows later in the book. Yet a third perspective is that Rousseau, who was certainly aware of the ambiguity of the usage, did so intentionally. It was simply an application of the concept of double-entendre, one which would be seen by any educated reader of French. If this interpretation is correct, then, some linguists note, English translations would be better served by printing this line as "Man is/was born free..."

References

- Robinson, Dave & Groves, Judy (2003). Introducing Political Philosophy. Icon Books. ISBN 1-84046-450-X.

Major works

- Discourse on the Arts and Sciences (Discours sur les sciences et les arts), 1750
- Narcissus, or The Self-Admirer: A Comedy, 1752
- Le Devin du Village: An opera, 1752
- Discourse on the Origin and Basis of Inequality Among Men (Discours sur l'origine et les fondements de l'inégalité parmi les hommes), 1754
- Discourse on Political Economy, 1755
- Letters to M. d'Alembert on the Theater, 1758
- The New Heloise (Julie ou la nouvelle Héloïse), 1761
- Emile, or Education (Émile ou de l'éducation), 1762
- The Creed of a Savoyard Priest, 1762. (in Emile)
- The Social Contract, Or Principles of Political Right (Du Contrat social), 1762
- Four Letters to M. de Malesherbes, 1762
- Letters Written from the Mountain, 1764
- Confessions of Jean-Jacques Rousseau (Les Confessions), 1770, published 1782
- Constitutional Project for Corsica, 1772
- Considerations on the Government of Poland, 1772
- Reveries of a Solitary Walker, incomplete, published 1782
- Dialogues: Rousseau Judge of Jean-Jacques, published 1782 His works were translated by Nakae Chomin to Japanese in the Meiji Era.

Online texts

- [http://wikisource.org/wiki/Auteur:Jean-Jacques_Rousseau Wikisource, texts in French]
- [http://www.geocities.com/avisolo3/rousseaubotany.pdf 'Elementary Letters on Botany', 1771-3] English translation
- [http://www.4literature.net/Jean_Jacques_Rousseau/Discourse_on_the_Moral_Effects/ A Discourse on the Moral Effects of the Arts and Sciences] English translation
- [http://userwww.service.emory.edu/~cjcampb/sourcedocs/narcissus.html Narcissus, or The Self-Admirer: A Comedy] English translation
- [http://www.constitution.org/jjr/ineq.htm Discourse on the Origin and Basis of Inequality Among Men] English translation
- [http://www.constitution.org/jjr/polecon.htm Discourse on Political Economy] English translation
- [http://www.marxists.org/reference/subject/philosophy/works/fr/rousseau.htm The Creed of a Savoyard Priest] English translation
- [http://www.constitution.org/jjr/socon.htm The Social Contract, Or Principles of Political Right] English translation
- [http://www.swan.ac.uk/poli/texts/rousseau/confa.htm Confessions of Jean-Jacques Rousseau] English translation
- [http://www.constitution.org/jjr/corsica.htm Constitutional Project for Corsica] English translation
- [http://www.constitution.org/jjr/poland.htm Considerations on the Government of Poland] English translation
-

External links

- [http://www.rousseauassociation.org/ Rousseau Association/Association Rousseau], a bilingual association (English and French) devoted to the study of Rousseau's life and works
- [http://www.mondopolitico.com/library/thesocialcontract/thesocialcontracttoc.htm Mondo Politico Library's presentation of Jean-Jacques Rousseau's book, The Social Contract (G.D.H. Cole translation; full text; formatted for easy on-screen reading)]
- [http://he.shvoong.com/books/classic-literature/30484-reveries-solitary-walker/ Summary of 'Reveries of the Solitary Walker'.]
- [http://www.espace-rousseau.ch Espace Rousseau], a museum located at 40 Rue Grand-Rue, Geneva, Rousseau's birthplace
- [http://www2.lucidcafe.com/lucidcafe/library/96jun/rousseau.html Jean-Jacques Rousseau: Philosopher]
- [http://www.radicalacademy.com/philenlightenment.htm#rousseau Jean-Jacques Rousseau]
- [http://www.wsu.edu:8000/~dee/ENLIGHT/ROUSSEAU.HTM The European Enlightenment: Jean-Jacques Rousseau]
- [http://www.feralchildren.com/en/pager.php?df=yousef2001 Savage or Solitary? The Wild Man and Rousseau's Man of nature], an article by Nancy Yousef comparing Rousseau's theoretical account with the reality of Victor of Aveyron Rousseau, Jean-Jacques Rousseau, Jean-Jacques Rousseau Rousseau Rousseau Rousseau Rousseau Rousseau Rousseau, Jean-Jacques Rousseau, Jean-Jacques Rousseau, Jean-Jacques ko:장 자크 루소 ja:ジャン＝ジャック・ルソー th:ชอง-ชาก รุสโซ

Separation of powers under the United States Constitution

Separation of powers is a doctrine whereby the legislative, executive and judicial branches of government are distinct to prevent abuse of power. The doctrine traces back to ancient Greece and was further developed by English and French philosophers. In the United States Constitution, the phrase separation of powers never appears, but is clearly implied by the structure of the Constitution. Therein, "all legislative Powers" are "vested in a Congress of the United States", "the executive Power" is "vested in the President of the United States, and "the judicial Power" is "vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish". Each branch has powers that restrain the other branches in a system of checks and balances that are designed to prevent the concentration and abuse of power. The Constitution does not dictate that state governments be comprised of three separate branches; they need only have a republican form of government. Nevertheless, most states have adopted systems of government whereby separation of powers is preserved, with state legislatures, executive governors, and state court systems.

History

governor The principle of separation of powers traces its origins at least as far back as Aristotle's time. During the Age of Enlightenment, several philosophers, such as John Locke and James Harrington, advocated the principle in their writings, whereas others such as Thomas Hobbes strongly opposed it. Montesquieu was one of the foremost supporters of separating the legislature, the executive and the judiciary. His writings considerably influenced the opinions of the framers of the United States Constitution. Some charge, however, that the Framers misinterpreted Montesquieu. According to Isaac Rice (a nineteenth century political scientist), Montesquieu opposed concentrating power in a single person, rather than a single source. Rice therefore suggested that a parliamentary system—which would not comply with the strict doctrine of separation of powers—would nevertheless be consistent with Montesquieu's philosophy. Strict separation of powers did not operate in Britain, a country whose political structure served in several instances as a model for the government created by the United States Constitution. In Britain, the King-in-Parliament (the King acting with the consent of the House of Lords and House of Commons) was the supreme lawmaking authority. The executive branch acted in the name of the King—it was known as "His Majesty's Government"—as did the judiciary. The King's Ministers were in most cases members of one of the two Houses of Parliament, and the Government needed to sustain a majority in the House of Commons. One minister, the Lord Chancellor, was at the same time the sole judge in the Court of Chancery and the presiding officer in the House of Lords. Thus, one may conclude that the three branches of British government often violated the strict principle of separation of powers, even though there were many occasions when the different branches of the government disagreed with each other. Some American states did not provide for strict separation of powers in the eighteenth century. In New Jersey, the Governor also functioned as a member of the state's highest court and as the presiding officer of one house of the Legislature. The President of Delaware was a member of the Court of Appeals; the presiding officers of the two houses of the state legislature also served in the executive department as Vice Presidents. In both Delaware and Pennsylvania, members of the executive council served at the same time as judges. On the other hand, many southern states explicitly required separation of powers. Maryland, Virginia, North Carolina and Georgia all kept the branches of government "separate and distinct."

Separation of powers in the United States

Legislative power

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Congress has the sole power to legislate for the United States. Under the "non-delegation doctrine," Congress may not delegate its lawmaking responsibilities to any other agency. In this vein, the Supreme Court held in the 1998 case Clinton v. City of New York that Congress could not delegate a "line-item veto" to the President, by which he was empowered to selectively nullify certain provisions of a bill before signing it. Where Congress does not make so great and sweeping a delegation of its authority, the Supreme Court has been less stringent. One of the earliest cases involving the exact limits of non-delegation was Wayman v. Southard (1825). Congress had delegated to the courts the power to prescribe judicial procedure; it was contended that Congress had thereby unconstitutionally clothed the judiciary with legislative powers. While Chief Justice John Marshall conceded that the determination of rules of procedure was a legislative function, he distinguished between "important" subjects and mere details. Marshall wrote that "a general provision may be made, and power given to those who are to act under such general provisions, to fill up the details." Marshall's words and future court decisions gave Congress much latitude in delegating powers. It was not until the 1930s that the Supreme Court held a delegation of authority unconstitutional. In a case involving the creation of the National Recovery Administration called A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935), Congress could not authorize the President to formulate codes of "fair competition." It was held that Congress must set some standards governing the actions of executive officers. The Court, however, has deemed that phrases such as "just and reasonable," "public interest" and "public convenience" suffice.

Executive power

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Executive power is vested in the President. The principal responsibility of the President is to "take care that the laws be faithfully executed." By using these words, the Constitution does not require the President to personally enforce the law; rather, officers subordinate to the President may perform such duties. It has been held that the Constitution, by empowering him to ensure the faithful execution of laws, permits the President to terminate the appointment of an executive officer. Congress may not itself terminate such appointments or restrict the President's power to do the same. Nevertheless, the President's control does not extend to non-executive agencies. It was held that bodies such as the War Claims Commission, the Interstate Commerce Commission and the Federal Trade Commission—all quasi-judicial or quasi-legislative entities—were not subject to the President's whims. Congress may not unilaterally restrain executive officials in the performance of their duties. In INS v. Chadha (1983), the Supreme Court struck down a law which authorized either House of Congress to veto an executive decision made by the Attorney General. Further rulings clarified the case; even both Houses acting together cannot veto executive rulings. Nevertheless, legislation may prescribe regulations governing executive officers. Legislation differs from a unilateral congressional veto in that the latter is not presented to the President for his approval (see checks and balances below).

Judicial power

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The judicial power — the power to decide cases and controversies—is vested in the Supreme Court and inferior courts established by Congress. The judges must be appointed by the President with the advice and consent of the Senate, hold office for life and receive compensations that may not be diminished during their continuance in office. If a court's judges do not have such attributes, the court may not exercise the judicial power of the United States. Courts exercising the judicial power are called "constitutional courts." Congress may create "legislative courts," which frequently take the form of quasi-judicial agencies or commissions whose members do not have the same security of tenure or compensation as the constitutional court judges. Legislative courts may not exercise the judicial power of the United States. In Murray's Lessee v. Hoboken Land & Improvement Co. (1856), the Supreme Court held that a legislative court may not decide "a suit at the common law, or in equity, or admiralty," as such a suit is inherently judicial. Legislative courts may only adjudicate "public rights" questions (cases between the government and an individual involving political determinations).

Checks and balances

Separation of powers is not absolute; it is instead qualified by the doctrine of checks and balances. James Madison wrote that the three branches "should not be so far separated as to have no constitutional control over each other." The system of checks and balances is designed to allow each branch to restrain abuse by each other branch.

Congress

James Madison The compensation of executive officials and judges is determined by Congress, but Congress may not increase or diminish the compensation of a President, or diminish the compensation of a judge, during his term in office. Congress determines its own members' emoluments as well, but the Twenty-seventh Amendment precludes an increase in congressional salary from taking effect until after the next biennial congressional election. The House of Representatives has the power to impeach both executive officials and judges; the Senate tries all impeachments. Note that Senators and Representatives are not considered civil officers: they are not subject to impeachment (but either House may expel one of its members by a two-thirds vote). While a simple majority is sufficient to impeach in the House of Representatives, a two-thirds majority in the Senate is necessary for conviction. Removal from office upon conviction is automatic. The Senate may impose the further punishment of barring the convict from ever holding an office under the United States. No punishment other than removal from office and prohibition from holding future office is permitted in impeachment trials, but convicts remain liable to regular criminal proceedings and punishment thereafter. Congress exercises a check over the composition of the executive branch. When no Presidential candidate has a majority in the Electoral College, the House of Representatives chooses between the top three candidates (under the Twelfth Amendment). The Senate performs a similar function with regards to Vice Presidential elections; the Senate's choice is limited to the two highest-placed candidates. When there is a vacancy in the office of Vice President, the President may fill it with the approval of both houses of Congress. Furthermore, the Senate's advice and consent is required for appointments of Cabinet members, ambassadors and other senior executive officers. When the Senate is in recess, however, the President may make temporary appointments, called recess appointments, without any confirmation process. Congress may also influence the composition of the judicial branch, as may the President. Congress may establish courts inferior to the Supreme Court and set their jurisdiction. Furthermore, Congress regulates the size of the courts. Judges are appointed by the President with the advice and consent of the Senate.

The President

The President exercises a check over Congress through his power to veto bills, but Congress may override any veto except for a pocket veto by a two-thirds majority in each house. When the two houses of Congress cannot agree on a date for adjournment, the President may settle the dispute. Either house or both houses may be called into emergency session by the President. Finally, the Vice President serves as President of the Senate. The President, as noted above, appoints judges with the Senate's advice and consent. He also has the power to issue pardons and reprieves. Such pardons are not subject to confirmation by either house of Congress, or even to acceptance by the recipient.

The courts

Courts check both the executive branch and the legislative branch through judicial review. This concept is not written into the Constitution, but was envisioned by many of the Constitution's Framers (for example, the Federalist Papers mention it). The Supreme Court established a precedent for judicial review in Marbury v. Madison. There were protests by some at this decision, borne chiefly of political expediency, but political realities in the particular case paradoxically restrained opposing views from asserting themselves. For this reason, precedent alone established the principle that a court may strike down a law it deems unconstitutional. A common misperception is that the Supreme Court is the only court that may determine constitutionality; the power is exercised even by the inferior courts. But only Supreme Court decisions are binding across the nation. Decisions of a Court of Appeals, for instance, are binding only in the circuit over which the court has jurisdiction. The power to review the constitutionality of laws may be limited by Congress, which has the power to set the jurisdiction of the courts. The only constitutional limit on Congress' power to set the jurisdiction of the judiciary relates to the Supreme Court; the Supreme Court may exercise only appellate jurisdiction except in cases involving states and cases affecting foreign ambassadors, ministers or consuls. The Chief Justice presides in the Senate during a President's impeachment trial. The rules of the Senate, however, generally do not grant much authority to the presiding officer. Thus, the Chief Justice's role in this regard is a limited one.

Equality of the branches

The Constitution does not explicitly indicate the pre-eminence of any particular branch of government, and on the contrary, James Madison wrote in Federalist 51, regarding the ability of each branch to defend itself from actions by the others, that "it is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates." One may accurately claim that the judiciary has historically been the weakest of the three branches. Its power to exercise judicial review—its sole meaningful check on the other two branches—was itself doubted by many. In fact, the Court exercised its power to strike down an unconstitutional Act of Congress only twice prior to the Civil War: in Marbury v. Madison (1803) and Scott v. Sandford (1857). While the Supreme Court has since then made more extensive use of judicial review, it cannot be said to have as much political power as either Congress or the President. The first six Presidents of the United States did not make extensive use of the veto power: George Washington only vetoed two bills, James Monroe one, and John Adams, Thomas Jefferson and John Quincy Adams none. James Madison, a firm believer in a strong executive, vetoed seven bills. None of the first six Presidents, however, used the veto to direct national policy. It was Andrew Jackson, the seventh President, who was the first to use the veto as a political weapon. During his two terms in office, he vetoed twelve bills—more than all of his predecessors combined. Furthermore, he defied the Supreme Court in enforcing the policy of Indian Removal; he famously said, "John Marshall has made his decision. Now let him enforce it!" Some of Jackson's successors made no use of the veto power, while others used it intermittently. It was only after the Civil War that Presidents began to use the power to truly counterbalance Congress. Andrew Johnson's struggles with Congress are particularly notable. Johnson, a Democrat, vetoed several Reconstruction bills passed by the "Radical Republicans." Congress, however, managed to override fifteen of Johnson's twenty-nine vetoes. Furthermore, it attempted to curb the power of the Presidency by passing the Tenure of Office Act. The Act required Senate approval for the dismissal of senior Cabinet officials. When Johnson deliberately violated the Act, which he felt was unconstitutional (Supreme Court decisions later vindicated such a position), the House of Representatives impeached him; he was acquitted in the Senate by one vote. Tenure of Office Act's impeachment.]] Johnson's impeachment was perceived to have done great damage to the Presidency, which came to be almost subordinate to Congress. Some believed that the President would become a mere figurehead, with the Speaker of the House of Representatives becoming a de facto Prime Minister. Grover Cleveland, the first Democratic President following Johnson, attempted to restore the power of his office. During his first term, he vetoed over four hundred bills—twice as many bills as his twenty-one predecessors combined. He also began to suspend bureaucrats who were appointed as a result of the patronage system, replacing them with more "deserving" individuals. The Senate, however, refused to confirm many new nominations, instead demanding that Cleveland turn over the confidential records relating to the suspensions. Cleveland steadfastly refused, asserting, "These suspensions are my executive acts ... I am not responsible to the Senate, and I am unwilling to submit my actions to them for judgment." Cleveland's popular support forced the Senate to back down and confirm the nominees. Furthermore, Congress finally repealed the controversial Tenure of Office Act that had been passed during the Johnson Administration. Thus, Cleveland's Administration marked the end of Presidential subordination. Several twentieth-century Presidents have attempted to greatly expand the power of the Presidency. Theodore Roosevelt, for instance, claimed that the President was permitted to do whatever was not explicitly prohibited by the law—in direct contrast to his immediate successor, William Howard Taft. Franklin Delano Roosevelt held considerable power during the Great Depression. Congress had granted Franklin Roosevelt sweeping authority; in Panama Refining v. Ryan, the Court for the first time struck down a Congressional delegation of power as violative of the doctrine of separation of powers. The aforementioned Schechter Poultry Corp. v. United States, another separation of powers case, was also decided during Franklin Roosevelt's Presidency. In response to many unfavorable Supreme Court decisions, Roosevelt introduced a "Court Packing" plan, under which more seats would be added to the Supreme Court for the President to fill. Such a plan (which was defeated in Congress) would have seriously undermined the judiciary's independence and power. Richard Nixon—whose Presidency is sometimes described as "Imperial" (see Imperial Presidency)—used national security as a basis for his expansion of power. He asserted, for example, that "the inherent power of the President to safeguard the security of the nation" authorized him to order a wiretap without a judge's warrant. Nixon also asserted that "executive privilege" shielded him from all legislative oversight; furthermore, he impounded federal funds (that is to say, he refused to spend money that Congress had appropriated for government programs). In the cases aforementioned, however, the Supreme Court ruled against Nixon. Even then, Nixon's successors have sometimes asserted that they may act in the interests of national security or that executive privilege shields them from Congressional oversight. Though such claims have in general been more limited than Nixon's, one may conclude that the Presidency's power has been greatly augmented since the eighteenth and nineteenth centuries. The rise of the presidency was also aided by the rise of a modern media establishment. In an era of limited attention spans and shortened time for television news, it was easier for journalists to focus on the actions of one centralized, decisive figure—the President—than on the actions of a loose, decentralized, milling chamber of equals, like the Senate or House.

Views on separation of powers

The division of powers in the United States has often been criticized as promoting inefficiency; when different parties hold Congress and the Presidency, a lack of co-operation may deadlock the legislative process. English author Walter Bagehot famously criticized the U.S. system on these grounds in his 1867 book The English Constitution, specifically noting the events during the administration of Andrew Johnson. Several individuals have proposed that a parliamentary system—in which the same party or coalition of parties controls both the executive and the legislature—would function more efficiently. Advocates of a parliamentary system have included President Woodrow Wilson. In comparing the English parliamentary system with the American system, Bagehot wrote: :"The English Constitution, in a word, is framed on the principle of choosing a single sovereign authority, and making it good: the American, upon the principle of having many sovereign authorities, and hoping that the multitude may atone for their inferiority." Many political scientists believe that separation of powers is a decisive factor in what they see as a limited degree of American exceptionalism. In particular, John Kingdon made this argument, claiming that separation of powers contributed to the development of a unique political structure in the United States. He attributes the unusually large number of interest groups active in the United States, in part, to the separation of powers; it gives groups more places to try to influence, and creates more potential group activity. He also cites its complexity as one of the reasons for lower citizen participation.

Humour

Political humourist PJ O'Rourke wrote that the three branches of government in the United States are in fact money, TV and bullshit.

References

- United States Constitution
- [http://www.senate.gov/reference/resources/pdf/presvetoes.pdf Davis, Z. (2001). "Presidential Vetoes, 1989–2000."]
- [http://writ.news.findlaw.com/dean/20040116.html Dean, J. W. (2004). "The U.S. Supreme Court and The Imperial Presidency."]
- [http://www.gpoaccess.gov/constitution/browse.html Kilman, J. & Costello, G. (Eds). (2000). The Constitution of the United States of America: Analysis and Interpretation.]
- Kunhardt, P. B., Jr., Kunhardt, P. B., III & Kunhardt, P. W. (1999). The American President. New York: Penguin.
- [http://usinfo.state.gov/usa/infousa/facts/funddocs/fed/federa48.htm Madison, J. (1788). "These Departments Should Not Be So Far Separated as to Have No Constitutional Control Over Each Other."]
- [http://usinfo.state.gov/usa/infousa/facts/funddocs/fed/federa47.htm Madison, J. (1788). "The Particular Structure of the New Government and the Distribution of Power Among Its Different Parts."]
- [http://usconstitution.net/consttop_newc.html Mount, S. J. J. (2003). "Rewriting the Constitution."] Category:U.S. Constitution Category:Legal history of the United States

United States Constitution

The Constitution of the United States is the supreme law of the United States of America. It was completed on September 17, 1787, with its adoption by the Constitutional Convention in Philadelphia, Pennsylvania, and was later ratified by special conventions in each of the original thirteen states. It created a federal union of sovereign states, and a federal government to operate that union. It replaced the less defined union that had existed under the Articles of Confederation. It took effect in 1789 and has served as a model for the constitutions of numerous other nations. nations] nations nations nations

History

During the Revolutionary War, the thirteen states first formed a very weak central government—with the Congress being its only component—under the Articles of Confederation. Congress lacked any power to impose taxes, and, because there was no national executive or judiciary, relied on state authorities (who were often uncooperative) to enforce all of its acts. It also had no authority to override tax laws and tariffs between states. The Articles required unanimous consent from all the states before they could be amended and states took the central government so lightly that their representatives were often absent. For lack of a quorum, Congress was frequently blocked from making even moderate changes. In September 1786, commissioners from five states met in the Annapolis Convention to discuss adjustments to the Articles of Confederation that would improve commerce. They invited state representatives to convene in Philadelphia to discuss improvements to the federal government. After debate, the Confederation Congress endorsed the plan to revise the Articles of Confederation on February 21, 1787. Twelve states (Rhode Island being the only exception) accepted this invitation and sent delegates to convene in May 1787. The resolution calling the Convention specified its purpose was to propose amendments to the Articles, but the Convention decided to propose a rewritten Constitution. The Philadelphia Convention voted to keep deliberations secret and decided to draft a new fundamental government design which eventually stipulated that only 9 of the 13 states would have to ratify for the new government to go into effect. These actions were criticized by some as exceeding the convention's mandate and existing law. However, Congress, noting dissatisfaction with the Articles of Confederation government, unanimously agreed to submit the proposal to the states despite what some perceived as the exceeded terms of reference. On September 17, 1787, the Constitution was completed in Philadelphia, and the new government it prescribed came into existence on March 4, 1789, after fierce fights over ratification in many of the states. The original transcribed copy of the Constitution is on permanent display at the National Archives in Washington, D.C. For a list of those who signed the Constitution, see List of signatories of the United States Constitution.

The Constitution

The U.S. Constitution styles itself the "supreme law of the land." Courts have interpreted this phrase to mean that when laws (including state constitutions) that have been passed by state legislatures, or by the (national) U.S. Congress, are found to conflict with the federal constitution, these laws are ultra vires and have no effect. Decisions by the Supreme Court over the course of two centuries have repeatedly confirmed and strengthened the doctrine of Constitutional supremacy, or the supremacy clause. supremacy clause The Constitution guarantees the legitimacy of the American state by invoking the American electorate. The people exercise authority through state actors both elected and appointed; some of these positions are provided for in the Constitution. State actors can change the fundamental law, if they wish, by amending the Constitution or, in the extreme, by drafting a new one. Different kinds of public officials have varying levels of limitations on their power. Elected officials can only continue in office if they are reelected at periodic intervals; appointed officials serve, in general, at the pleasure of the person or authority that appointed them, and may be removed at any time. The exception to this practice is the lifetime appointment by the President of Justices of the Supreme Court and other federal judges; the justification for this exception is that once appointed for life, these judges are presumed capable of acting free of political obligations or influence.

Principles of government

Although the Constitution has been amended several times since it was first adopted, its basic principles remain the same now as in 1789. There are three branches of the national government—executive, legislative, and judicial—and they are separate and distinct from one another. The powers given to each are in theory balanced and checked by the powers of the other two. Each branch ideally serves as a check on potential excesses of the others. This is known as "separation of powers", and was partly taken from the ideas of the Baron de Montesquieu. Baron de Montesquieu.]] The United States is federal in nature. Powers enumerated in the Constitution are given to the Federal Government, and all other, unenumerated, powers remain with the states or the people. (See the Tenth Amendment.) The Constitution, together with laws passed according to its provisions and treaties entered into by the president and approved by the Senate, stands above all other laws, executive acts, and regulations. Beginning with the case of Marbury v. Madison, the United States judiciary has engaged in judicial review. This means that the federal courts will examine duly enacted laws, and, if they are found to be unconstitutional, will overturn them. They also examine the acts of public officials—up to and including those of the president. (See United States v. Nixon.) Since the enactment of the Fourteenth Amendment, all persons have been equally entitled to the law's protection. All states are equal and in principle none can officially receive special treatment from the federal government. Within the limits of the Constitution, each state must recognize and respect the laws of the others. State governments, like the federal government, must be republican in form, with final legitimacy resting with the people. By means defined in the Fifth Article of the Constitution, Congress may propose amendments to the Constitution. Moreover, any two thirds of the states may themselves initiate a convention for proposing amendments. When ratified as specified, all amendments are considered part of the Constitution.

Preamble

The Preamble reads: :We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, 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. The Preamble neither grants any powers nor inhibits any actions; it only explains the rationale behind the Constitution. The preamble, especially the first three words ("We the people"), is one of the most quoted and referenced sections of the Constitution.

Articles of the Constitution

The remainder of the constitution consists of seven articles.

Legislative power

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Article One establishes the legislative branch of government, U.S. Congress, which includes the House of Representatives and the Senate. The Article establishes the manner of election and qualifications of members of each House. In addition, it outlines legislative procedure and indicates the powers of the legislative branch. Finally, it establishes limits on federal and state legislative power.

Executive power

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Article Two describes the presidency (the executive branch): procedures for the selection of the president, qualifications for office, the oath to be affirmed, the powers and duties of the office, and procedures for selection. It also provides for the office of Vice President of the United States, and specifies that the Vice President succeeds to the presidency if the President is incapacitated or resigns. The article nominally makes the Vice President the presiding officer of the Senate, but in practice the Vice President only serves as such under limited circumstances. Article Two also provides for the impeachment and removal from office of civil officers (the President, Vice President, judges, and others). (See presidential system).

Judicial power

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Article Three describes the court system (the judicial branch), including the Supreme Court. The article requires that there be one court called the Supreme Court; Congress, at its discretion, can create lower courts, whose judgments and orders are reviewable by the Supreme Court. Article Three also requires trial by jury in all criminal cases, defines the crime of treason, and charges Congress with providing for a punishment for it, while imposing limits on that punishment.

States' powers and limits

Article Four describes the relationship between the states and the Federal government, and amongst the states. For instance, it requires states to give "full faith and credit" to the public acts, records and court proceedings of the other states. Congress is permitted to regulate the manner in which proof of such acts, records or proceedings may be admitted. The "privileges and immunities" clause prohibits state governments from discriminating against citizens of other states in favor of resident citizens (e.g., having tougher penalties for residents of Ohio convicted of crimes within Arizona). It also establishes extradition between the states, as well as laying down a legal basis for freedom of movement and travel amongst the states. Today, this provision is sometimes taken for granted, especially by citizens who live near state borders; but in the days of the Articles of Confederation, crossing state lines was often a much more arduous (and costly) process.

Process of amendment

Article Five describes the process necessary to amend the Constitution. It establishes two methods of proposing amendments: by Congress or by a national convention requested by the states. Under the first method, Congress can propose an amendment by a two-thirds vote (of a quorum, not necessarily of the entire body) of the Senate and of the House of Representatives. Under the second method, Congress must call a national convention for the purpose of considering amendments when two-thirds of the state legislatures "apply" to Congress for such a convention. Thus far, only the first method (proposal by Congress) has been used. Once proposed—whether submitted by a national convention or by Congress—amendments must then be ratified by three-fourths of the states to take effect. Article Five gives Congress the option of requiring ratification by state legislatures or by special conventions assembled in the states. The convention method of ratification has been used only once (to approve the 21st Amendment). Article Five currently places only one limitation on the amending power—that no amendment can deprive a state of its equal representation in the Senate without that state's consent.

Federal power

Article Six establishes the Constitution, and the laws and treaties of the United States made in accordance with it, to be the supreme law of the land. It also validates national debt created under the Articles of Confederation and requires that all legislators, federal officers, and judges take oaths to support the Constitution.

Ratification

Article Seven sets forth the requirements for ratification of the Constitution. The Constitution was originally proposed as an amendment of the Articles of Confederation, which required ratification by all 13 of the original states for amendments to take effect. Article Seven of the Constitution, however, only required ratification by 9 states for that document to take effect. Scholars have traditionally resolved this contradiction by arguing that when the ninth state ratified the Constitution and the document took effect, those 9 states implicitly seceded from the union governed by the Articles and created a new, separate federal union. Under this theory, those states that did not ratify the Constitution would have remained part of a separate country. However, eventually all the states did ratify the Constitution.

Provisions for amendment

The authors of the Constitution were clearly aware that changes would be necessary from time to time if the Constitution was to endure and cope with the effects of the anticipated growth of the nation. However, they were also conscious that such change should not be easy, lest it permit ill-conceived and hastily passed amendments. Balancing this, they also wanted to ensure that an overly rigid requirement of unanimity would not block action desired by the vast majority of the population. Their solution was to devise a dual process by which the Constitution could be altered. The first option must begin in Congress which, by a two-thirds vote (of a quorum) in each house, may initiate an amendment. Alternatively, the legislatures of two-thirds of the several states may ask Congress to call a national convention to discuss and draft amendments. To date, all amendments have been proposed by Congress; although state legislatures have on occasion requested the calling of a convention, no such request has yet received the concurrence required for such a convention. In either case, amendments must have the approval of the legislatures or of smaller ratifying conventions within three-fourths of the states before becoming part of the Constitution. All amendments save one have been submitted to the state legislatures for ratification; only the 21st Amendment was ratified by individual conventions in the states. Unlike most constitutions, amendments to the U.S. constitution are appended to the existing body of the text, rather than being revisions of or insertions into the main articles. There is no provision for expunging from the text obsolete or rescinded provisions. Some people feel that demographic changes in the U.S.—specifically the great disparity in population between states—have made the Constitution too difficult to amend, with states representing as little as 4% of the population theoretically able to block an amendment desired by over 90% of Americans; others feel that it is unlikely that such an extreme result would occur. However, any proposals to change this would necessarily involve amending the Constitution itself, creating something of a Catch-22. Aside from the direct process of amending the Constitution, the practical effect of its provisions may be altered by judicial decision. The United States is a common law country, and courts are obliged to follow the precedents established in prior cases. However, when a Supreme Court decision clarifies the application of a part of the Constitution to existing law, the effect is to establish the meaning of that part for all practical purposes. Not long after adoption of the Constitution, in the 1803 case of Marbury v. Madison, the Supreme Court established the doctrine of judicial review, which is the power of the Court to examine legislation and other acts of Congress and to decide their constitutionality. The doctrine also embraces the power of the Court to explain the meaning of various sections of the Constitution as they apply to particular cases brought before the Court. Since such cases will reflect changing legal, political, economic, and social conditions, this provides a mechanism, in practice, for adjusting the Constitution without needing to amend its text. Over the years, a series of Court decisions, on issues ranging from governmental regulation of radio and television to the rights of the accused in criminal cases, has effected a change in the way many Constitutional clauses are interpreted, without amendment to the actual text of the Constitution. Congressional legislation, passed to implement provisions of the Constitution or to adapt those implementations to changing conditions, also broadens and, in subtle ways, changes the meanings given to the words of the Constitution. Up to a point, the rules and regulations of the many agencies of the federal government have a similar effect. In case of objection, the test in both cases is whether, in the opinion of the courts, such legislation and rules conform with the meanings given to the words of the Constitution.

Amendments

The Constitution has a total of 27 amendments. The first ten, collectively known as the Bill of Rights, were ratified simultaneously. The following seventeen were ratified separately.

The Bill of Rights (1–10)

Bill of Rights The Bill of Rights comprises the first ten amendments to the Constitution. Those amendments were all adopted within a few years of the ratification of the Constitution, and all relate to limiting the power of the federal government. They were added in response to criticisms of the Constitution by the state ratification conventions and by prominent individuals such as Thomas Jefferson (who was not a delegate to the Constitutional Convention). These critics argued that without further restraints, the strong central government would become tyrannical. The amendments were proposed by Congress as part of a block of twelve in September 1789. By December 1791 a sufficient number of states had ratified ten of the twelve proposals, and the Bill of Rights became part of the Constitution. It is commonly understood that the Bill of Rights was not originally intended to apply to the states, though except where amendments refer specifically to the Federal Government or a branch thereof (as in the first amendment, under which some states in the early years of the nation officially established a religion), there is no such delineation in the text itself. Nevertheless, a general interpretation of inapplicability to the states remained until 1868, when the Fourteenth Amendment was passed, which stated, in part, that: :No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. The Supreme Court has interpreted this clause to extend some, but not all, parts of the Bill of Rights to the states. Nevertheless, the balance of state and federal power has remained a battle in the Supreme Court; for example, a recent case dealt with whether a state could be sued by an employee under the federal Americans with Disabilities Act of 1990 (see Federalist Society and Federalism). The amendments that became the Bill of Rights were actually the last ten of the twelve amendments proposed in 1789. The second of the twelve proposed amendments, regarding the compensation of members of Congress, remained unratified until 1992, when the legislatures of enough states finally approved it and, as a result, it became the Twenty-seventh Amendment despite more than two centuries of pendency. The first of the twelve—still technically pending before the state legislatures for ratification—pertains to the apportionment of the United States House of Representatives after each decennial census. The most recent state whose lawmakers are known to have ratified this proposal is Kentucky in 1792 during that commonwealth's first month of statehood. The first amendment addresses the rights of freedom of speech and the press; the right of peaceful assembly; and the right of petition. It also addresses freedom of religion, both in terms of prohibiting the establishment of religion and protecting the right to free exercise of religion. The second states, in its entirety, "A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed." Current case law (including U.S. Supreme Court decisions) tends to assert that the "right of the people to keep and bear Arms" is an individual right but not an absolute right, and that the states and federal government may omit certain classes of people from the general-public sense of the "militia" for cause (criminal record, young or old age, mental incapacity, etc.), and may limit the types of weapons to which the right applies. The courts have interpreted and reinterpreted the second amendment since it was ratified; the Supreme Court first visiting it in United States v. Cruikshank, in 1875. The third prohibits the government from using private homes as quarters for soldiers without the consent of the owners. The fourth guards against unreasonable searches, arrests, and seizures of property. The next four amendments deal with the system of justice. The fifth forbids trial for a major crime except after indictment by a grand jury; prohibits repeated trials for the same offense after an acquittal (except in certain very limited circumst