The principles of the US Constitution - their effectiveness today
On this page you will consider the following principles
Separation of Powers
Checks and balances
Some thoughts on the Constitution
An short film during the lock down I made for my students.
Federalism ‘E Pluribus Unum’-‘Out of Many; One’
The US Constitution attempted to balance the need for central government control with the desire of the original colonies to protect their own interests. A system of federalism was created, with Power divided between central government (the federal government) and regional government (the states).
The term 'federalism' does not explicitly appear in the US Constitution, but such a structure is implied Article 1 by the enumerated (specified) powers of the federal government. These list powers granted and denied to the federal government and powers denied to the states. These include coining money, maintaining troops, negotiating treaties and taxing imports. Also by the 10th Amendment then guaranteed that all powers not specifically granted to federal government were reserved for the states. These reserved powers are afforded further protection by the need for the states' assent to any constitutional amendment in the Amendment Process. Also the Electoral College preserves a role for the States.
For example: In 2021, 19 states passed laws to restrict voting rights while 25 states passed laws to expand voting rights. The power to control how elections are run belongs to the states based on Article I of the US Constitution
Each state is like a smaller version of the US, with its own Constitution, head of the executive branch (Governor), legislature (State Congress) and Supreme Court. Each state is subject to the Constitutional rules of the US, but has a huge degree of control over its own affairs.
The Constitution is particularly unclear in relation to federalism and the protection of state power. The power of the federal government has grown hugely as a response to economic crisis, increased demands for civil-rights protection and greater provision of social policy. The states are increasingly controlled by federal institutions, but the Constitution has barely changed in these areas.However, the line between federal and state powers has always been rather unclear. This situation largely originates from the so-called 'elastic clause' which gives the federal authorities the power to 'make all laws which shall be necessary and proper for carrying into execution the foregoing powers'. In addition, the Supreme Court has, on many occasions, ruled that American citizens have fundamental rights that transcend the powers of the states In these ways, for much of the twentieth century, federal government effectively eroded the supposed 'reserved' powers of the state
The relationship between the federal and state governments has been a constant source of political debate in America since the founding of the republic. It goes to the heart of competing visions of America: either one unified nation state with a marked degree of centralised political control, or a confederation of states all retaining a considerable degree of autonomy. Stereotypically, those on the left tend to favour a stronger federal government, both to manage the economy and stem the excesses of corporate power, and to ensure basic standards of rights and services. In contrast, those on the right see states as retaining a vital role: they were the foundation of the republic, embody the American ethos of rugged individualism and act as a necessary safeguard against the liberal agenda of the institutions of the federal government.
Case study: The vaccine mandate
In response to the Covid-19 pandemic, the Biden administration passed a vaccine mandate. This would have required employees who worked for companies that had more than 100 workers to be vaccinated against Covid-19 and would have affected 84 million Americans. Some states disagreed with this mandate. Kim Reynolds, the Governor of Iowa, said her state would refuse to follow the vaccine mandate: ‘We are going to continue to protect the freedoms and liberties of Iowans. The Biden administration continues to ignore the constitutional rights afforded to all Americans, which our country was built on.’ Other states, such as Arkansas, acted similarly. Ultimately, nearly half of US states sued the Biden administration over the mandate, leading to the Supreme Court striking it down in a 6–3 decision.
Separation of powers
The founders of the Constitution were influenced by the writings of the French political philosopher Montesquieu (1689–1755). In his book De L’Esprit des Loix (The Spirit of the Laws), published in 1748, Montesquieu argued for a separation
The separation of powers refers to the division of a system of government into three branches: the executive, the legislature and the judiciary. In the case of the US, the Founding Fathers created a president, Congress and Supreme Court. In the US system, no one is allowed to be in more than one branch at the same time. So, for example, it is not possible to be both a member of Congress and work alongside the president in the executive branch.of powers into legislative, executive and judicial branches in order to avoid tyranny.
‘When the legislative and executive powers are united in the same person...there can be no liberty,’ he wrote.
The Founding Fathers had the idea that each of these three independent yet co-equal branches should check the power of the others. It was decided that no person could be in more than one branch of the federal government at the same time — what we might call ‘the separation of personnel’. rather than the separation of powers since powers tend to be shared. So a better way of describing this principle is:
Separate institutions sharing power. (Richard Neustadt)
This is especially important in terms of the legislature and the executive, which Professor S.E. Finer (1970) described as being
‘like two halves of a bank note — each useless without the other’.
On becoming president in 2009 Barack Obama had to give up his Senate seat, and in becoming attorney general in 2017 Jeff Sessions had to give up his Senate seat to join the executive branch and Vice President Kamala Harris had to leave her seat in the Senate to take up her role in the executive branch.
This contrasts with the centralisation of power of an absolute monarchy, or the fusion of powers in which separate branches are created, but have significant overlaps.
The separation of powers is based on a desire to share power, preventing any one institution or politician from dominating the political system. For many of the Founding Fathers it was a guiding principle that allowed the preservation of the liberty of individuals in society.
Checks and balances
With the three branches separated in terms of personnel, the Founding Fathers created a series of checks and balances that each branch could impose on another. Each branch of government has exclusive power, limiting the ability of other branches to operate in an unrestrained manner.
The system of checks and balances by which each branch of the American government manages to limit the powers of each of the other two branches was designed by the Founding Fathers to limit the power of each branch of government and hence prevent-tyranny
Checks by the Executive on the Legislature
As well as requesting Congress to write Bills, presidents can send Bills to Congress even though they will still be titled 'by request'.
In addition, the president has the power to veto bills passed by Congress. During his 8 years in office, President Clinton used the veto power on 36 occasions, including his veto of the 1999 Republican tax cut. Obama vetoed 12 Bills with one (the 9/11 Bill) being overridden.
Checks by the executive on the legislature
Note that there are fewer checks by the executive on the legislature than by the legislature on the executive-
The president is given the power to recommend legislation to the Congress. He (or she, though no female president has yet been elected) does this formally in January of each year in what is known as the State of the Union Address. Presidents use this set-piece speech, delivered to a joint session of the House of Representatives and the Senate — as well as cabinet members and the nine justices of the Supreme Court on primetime television before a nationwide audience. It is the president's main opportunity to lay out his legislative agenda: in effect saying to Congress, 'this is what I want you to debate and pass into law'. President Obama used his State of the Union Address in 2009 to try to get Congress to write a health reform bill.
Checks by the executive on the judiciary
Here the president has two significant checks. First, he nominates all federal judges to the federal courts and and Supreme Court. It is the latter that are the most important. President Clinton was able to make two appointments to the Supreme Court — Ruth Bader Ginsburg (1993) and Stephen Breyer (1994). By choosing justices whose judicial philosophy matches their own, presidents can hope to mould the outlook of the Court for years to come. Obama appointded Sonia Sotomeyor and Elena Kagan. Trump appointed Neil Gorsuch and Brett Kavanaugh July 10, 2018
Second, the president has the power of pardon. This has become something of a controversy in recent times. In 1974, President Ford pardoned his predecessor —President Nixon — for any crimes that Nixon might have committed in the so-called Watergate affair. On the final day of his presidency, President Clinton pardoned 140 people, including Mark Rich, a notorious tax fugitive. Incoming President George W. Bush pointedly made no use of the power in the first 2 years of his administration. Obama pardoned Chelsea Manning.
Checks by the legislature on the executive
Because the Founding Fathers were most anxious about the possible power of the singular executive they had created — the president — they hedged this branch of government with the most checks. Congress exercises eight significant checks on the president.
Congress can amend, block or even reject items of legislation recommended by the president.
Congress can amend, block or even reject items of legislation recommended by the president. In 2010, it passed — but in a significantly amended form — President Obama’s healthcare reform bill. But Congress blocked Obama’s attempt at immigration reform and rejected every proposal he made regarding meaningful gun control legislation.
2017 the House blocked the first version of Trump's American Health Care Act.
- Congress can override the president's veto. To do this, it needs to gain a two-thirds majority in both houses of Congress. During President Clinton's two terms, Congress overrode two of his vetoes, including the one on the 1995 Securities Bill. Bush had 4 overrides and Obama 1.
Congress has the significant power that is referred to as 'the power of the purse'. All the money that the president wants to spend on his policies must be voted for by Congress. Its refusal to vote for this money will significantly curtail what the president can do — be it in domestic or foreign policy. Congress used this power to prevent the closure of Guantanamo.
In the field of foreign policy, Congress has two further checks on the president. Although the Constitution confers on the president the power to be 'commander in chief' of the armed forces, it confers on Congress the power to declare war. Although this power seems to have fallen into disuse — the last time Congress declared war was on Japan in 1941 — Congress has successfully forced presidents since then to seek specific authorisation before committing troops to situations in which hostilities are likely or inevitable. In 2003, President George Bush gained specific authorisation from Congress to launch his wars in Afghanistan and Iraq. In 2012 Congress voted against the bombing of targets in Syria. In htis case Obama had sought their support even though he did not need to.
The Senate has the power to ratify treaties negotiated by the president. This requires a two-thirds majority. In 1997, the Senate ratified the Chemical Weapons Ban Treaty. Negotiated by President Bush and backed, by Clinton, the treaty was ratified by the Senate by 74 votes to 26. However, 2 years later, the Senate rejected the Comprehensive Test Ban Treaty by 48 votes to 51 — 18 votes short of the 66 votes required to ratify it. This was the first major treaty to be rejected by the Senate since the rejection of the Versailles Treaty in 1920. Five minor treaties have been rejected in between.
- The check exercised by Congress over the president is an important power held by the Senate alone — the power to confirm many of the appointments that the president makes to the executive branch and all the appointments he makes to the federal judiciary. Executive appointments subject to Senate confirmation include such high-profile posts as cabinet members, ambassadors and heads of important agencies such as the CIA and the FBI. Only a simple majority is required for confirmation. Rejections are unusual, but only because presidents usually consult informally with key Senators before announcing such appointments, naming only those for whom confirmation is a fair certainty. In 1987, the Senate rejected (42-58) President Reagan's nominee, Robert Bork, for a place on the Supreme Court (see Chapter 8). In 1989, the Senate rejected (47-53) John Tower as secretary of defense. In 1997, it refused to confirm William Weld — President Clinton's choice as ambassador to Mexico. In 1999, it rejected (45-54) Ronnie White — President Clinton's nominee to a vacancy on the United States District (trial) Court. Obama face the longest delays in confirming all his appointments and the Senate refused to even consider his nomination of Merrick Garland to the Supreme Court.
Two further important checks on the president are given to Congress. The first is the power of investigation: Congress — usually through its committees — may investigate the actions or policies of any member of the executive branch, including the president. President. George W. Bush's handling of national security issues both before and after the events of 11 September 2001 was investigated by Congress. Trump is being investgated by the Senate Intellignec Committee.
- Finally, in the most serious circumstances, investigation may lead to impeachment — the ultimate check that Congress holds over the executive. Congress may impeach (formally accuse) any member of the executive branch, including the president. Two presidents — Andrew Johnson (1868) and Bill Clinton (1998) — have been impeached by Congress. It is the House of Representatives which has the power of impeachment. In 1998, it passed two articles of impeachment against President Clinton — for perjury (228-206) and obstruction of justice (221-212). Just a simple majority is required. Once the House has impeached, the Senate then conducts the trial. If found guilty by a two-thirds majority, the accused person is removed from office. In President Clinton's case, the Senate found him not guilty on both articles of impeachment — the votes being 45-55 on perjury and 50-50 on obstruction of justice, respectively 22 and 17 votes short of the required two-thirds majority. In the 1860s, President Johnson escaped conviction by the Senate by just one vote. In 1974, President Nixon resigned rather than face near certain impeachment by the House and conviction by the Senate. Thus, through impeachment — what someone has described as the political equivalent of the death penalty' — Congress can remove the president. This is the ultimate check. The president holds no similar power — he cannot remove Congress.
Checks by the legislature on the judiciary
Congress has two important checks on the courts. First, there is the power of impeachment, trial and — if found guilty by a two-thirds majority — removal from office. In the space of 3 years (1986-89), Congress removed three federal judges from office — Harry Claiborne for tax evasion, Alcee Hastings for bribery and Walter Nixon for perjury.
A more subtle but still significant check is that Congress can propose constitutional amendments to — in effect — overturn a decision of the Supreme Court. When in 1896 the Supreme Court declared federal income tax to be unconstitutional, Congress proposed the 16th Amendment granting Congress the power to levy income tax. It was ratified and became operative in 1913. Congress has more recently attempted unsuccessfully to reverse Supreme Court decisions on such issues as flag burning and prayer in public schools.
The Senate must also confirm appointments to the Supreme Court.
Checks by the judiciary on the legislature
The judiciary — headed by the Supreme Court — possesses one very significant power over the Congress: the power of judicial review. This is the power of the court to declare Acts of Congress to be unconstitutional and therefore null and void. In the 1997 case of Reno v. American Civil Liberties Union, the Supreme Court declared the Communications Decency Act unconstitutional. In 1998, in Clinton v. New York City, it declared the Line Item Veto Act unconstitutional. Windsor v US struck down the 1996 Defence of Marriage Act.
Checks by the judiciary on the executive
The courts have the same power of judicial review over the executive branch. Here the power of judicial review is the ability to declare actions of any member of the executive branch to be unconstitutional. In Youngstown Sheet Tube Company v. Sawyer (1952), the Supreme Court ordered President Truman's commerce secretary, Charles Sawyer, to remove federal troops whom he had sent into steel mills to break an industry-wide strike. In United States v. Richard Nixon (1974), the Court ordered President Nixon to hand over the so-called White House tapes and thereby stop impeding investigation of the Watergate affair. Nixon obeyed, handed over the tapes and resigned within days once the tapes showed his involvement in an intricate cover-up. 2016 The Supreme Court ruled DAPA (Deferred Action Against Parents of Americans) unconstitutional in Texas v US. In the case of Trump v Vance (2020), the Supreme Court struck down presidential immunity, saying that Trump did not have absolute immunity from subpoenas directed at his private papers
Critical evaluation of checks and balances
A strong argument can be put forward to support the system. Bad legislation is avoided by the president's power of veto; the 'popular' will is enacted by the ability of Congress to override the veto, and also by Congressional hold over the 'power of the purse' The behaviour of presidents and Supreme Court justices can be maintained to a high standard by the existence of congressional impeachment. The dangers of an over-mighty single executive are constrained by the need for Senate confirmation of treaties and appointments. Civil liberties are protected by an entrenched Bill of Rights which is upheld by the Supreme Court. As well as Congressional legislation, the Supreme Court can declare presidential action to be unconstitutional. And the power of the Supreme Court is restricted by the potential for constitutional amendment and the ability of both other branches to prevent a Supreme Court appointment.
'Ambition must be made to counteract ambition'
There is a 'necessity to compromise'
James Madison Federalist Papers
Checks and balances require compromise.
The checks and balances between the three branches of the federal government — especially those between the legislature and the executive — have important consequences for US politics. They encourage a spirit of bipartisanship and compromise between the president and Congress. Laws are passed, treaties ratified, appointments confirmed and budgets fixed only when both branches work together rather than pursue a partisan approach. President George W. Bush Managed to achieve his education reforms in 2001-02 because he worked with leading congressional Democrats such as Senator Edward Kennedy. President Bill Clinton failed to get his healthcare reform passed by Congress in 1993-94 because he adopted a partisan approach in which the views of even moderate Republicans in Congress were ignored.
However, the trouble is that gridlock can result. e.g Gridlock –Government shut down 2013 Most recent presidents have accused the Senate of either rejecting or blocking their judicial nominations for partisan reasons. As a consequence, a large number of posts in both the federal trial and appeal courts remain unfilled for months, even years, slowing down the work of the courts. In 1995, such a serious impasse developed between the Republican-controlled Congress and Democrat President Clinton over the passage of the federal budget that parts of the federal government had to close when they ran out of money.
This raises the issue of 'divided government'. In US politics, this term is used to refer to the situation in which one political party controls the presidency and another controls one or both houses of Congress. Of late, this has indeed become the norm. The 34 years between 1969 and 2003 have seen 27 years of divided government. For only 6 years of this period did one party control the presidency and both houses of Congress: 1977-81 (President Carter) and 1993-95 (President Clinton) for the Democrats, and January-June 2001 (President George W. Bush) for the Republicans. It is worth noting, too, that divided government has not always been the norm. In the previous 34 years — from 1935 to 1969 — there was divided government for only 8 years.
Does divided government make the checks and balances between Congress and the president more or less effective?
There are arguments on both sides. Some think that divided government leads to more effective government. Bills are scrutinised more closely, treaties checked more carefully and nominees questioned more rigorously in the confirmation process. There is some evidence that when Congress and the president are of the same party, legislation, nominations, budgets, treaties and the like are nodded through without as much careful scrutiny as there should be. Not since 1935 has the Senate rejected a treaty of a president of its own party Only twice in the last 50 years has Congress overridden a veto of a president of its party. In 1964, Democrat President Johnson managed to persuade a Congress with Democrat majorities in both houses to pass the Tonkin Gulf Resolution which authorised the President to take whatever action was deemed appropriate in south Vietnam.
Others, however, think that divided government leads to less effective government. Examples such as the treatment of Republican Supreme Court nominees Robert Bork (1987) and Clarence Thomas (1991) by a Democrat-controlled Senate. The failure to even consider Merrick Garland's nomination, and the impeachment proceedings conducted against Democrat President Bill Clinton by a Republican-controlled Congress (1998-99), seem poor advertisements for effective checks and balances. e.g Failure to close Guantanamo; Click here to find out about Guantanamo BBC Explains Guantanamo Why was Obama unable to close it? Al Jazeera film
There are specific checks and balances that have proved problematic in modern times. Congress's power to declare war is one obvious example. Modern presidents have managed to conduct covert wars in Korea, Vietnam and the Persian Gulf, to name but three, with no congressional declarations of war. Impeachment used against Presidents Andrew Johnson and Bill Clinton seems to have become overtly political. Analysts suggest, with considerable evidence, that the confirmation process of federal judges has become overly politicised. Foe example failure to appoint Merrick Garland or Trump's choice of Amy Coney Barrett for the Supreme Court. That having been said, the checks and balances of the Constitution have stood the test of time remarkably well. The Founding Fathers might be pleased with how well their creation has survived.
Do checks and balance really limit modern presidents? There are a number of ways in which presidents can exercise power without being checked, particularly in foreign policy and military action. Power without persuasion is a book by William Howell - which identifies executive orders, signinfg statements, vetoes, and recess appointments . Signing Statements- A history of signing statements Examples The McCain Amendment, Bowe Bergdahl. Trumps use of executive orders and the power to pardon has been criticised as an abuse of power.
While it makes no mention of political parties, the Constitution itself means that compromise is inevitable if decisions are to be made. The division of power between president, House and Senate means that parties need to co-operate in order to govern the country. In addition, the Constitution requires cross-party support through the need for super-majorities for amendments, and for the Senate to ratify treaties. The original Constitution makes it possible for rival political groups to control the three bodies with most legislative influence. As James Madison put it in his essay Federalist 51, 'Ambition must be made to counteract ambition.'
In the US, bipartisan control between these institutions is common. When divided government occurs - when the House of Representatives, Senate and presidency are not all controlled by one Party - parties have to work together to pass policy. This has worked effectively over the history of the US as parties have often found legislative compromises.
'There is nothing which I dread so much as a division of the republic into two great parties, each arranged under its leader, and concerting measures in opposition to each other.
This, in my humble apprehension, is to be dreaded as the greatest political evil under our Constitution.' John Adams. Founding Father
Today, the constitutional requirement for bipartisanship has led to a major constitutional challenge. With parties becoming more polarised, there is less scope for compromise and Congress has been
less able to legislate, leading to weak government. Some critics have questioned the desirability of constitutional system, arguing that current constitutional arrangements are no longer suitable. Others see this as a crisis of political parties in which the parties themselves are the problem.
A lack of willingness to compromise has meant that Adams's 'political evil' is present today
One of the core principles of liberal democracy is that of limited government: the role of government should be limited by checks and balances and a separation of powers, because of the corrupting nature of power. In the context of the US, limited government means that the power of the federal government is subject to limitations as laid out in the Constitution, so that it cannot simply impose its policy on the state and its citizens.
James Madison, writing later in The Federalist Papers, stated
If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.
The Bill of Rights also prevents the federal government from restricting the rights of the individual or the rights of states. Amendments such as the 1st (freedom of expression) and 4th (freedom from unreasonable searches) can be seen as limiting government by protecting individual freedoms. The 10th amendment is clearly designed to protect the power of the states by stating that any power not given to the federal government is reserved for the states or the people.
Modern conceptions of limited government cover the extent to which the federal government plays a role in social and economic policy. For conservatives, and particularly for libertarians, there is a desire to reduce government involvement in areas such as expenditure (for example, on welfare provision). Social programmes are frowned on as being part of a 'big government' agenda, which is rejected by many in the US.
An example of limited government is the case of Trump v Vance (2020), the Supreme Court struck down presidential immunity, saying that Trump did not have absolute immunity from subpoenas directed at his private papers.
However, government can act beyond the limits imposed by the constitution for example despite Biden recognising that his eviction moratorium during the Covid-19 pandemic was likely to be unconstitutional, he issued it anyway