CONSTITUTION - Key principles Flashcards
Richard Neustadt on separation of powers in 1960
‘The Constitutional Convention of 1787 is supposed to have created a government of ‘separated powers. It did nothing of the sort, as it rather, created a government of separated institutions sharing powers’
Montesquieu on The Spirit of the Law
‘When the legislative and the executive powers are united in the same person… there can be no liberty’ l’esprit des Lois, 1748 (The Spirit of the Law)
- LIMITED GOVERNMENT
The Founding Fathers wanted the new government to be as big as was necessary and so sought to limit power through the separation of powers and the checks and balances.
The Founding Fathers were also concerned that individual freedoms were being compromised by a powerful government.
The Bill of Rights was argued to be a way to ensure that the individual rights were protected.
The Bill of Rights was not part of the Constitution established in 1787 – some states only agreed to signing the Constitution on the provision that a Bill of Rights would be added to ensure a limited government.
- SEPARATION OF POWERS
Whilst trying to achieve a limited government, the Founding Fathers drew on the influence from the work of Baron De Montesquieu, an 18th Century philosopher.
The Spirit of the Laws argued for three separate branches of government.
The Founding Fathers divided the government into these three branches – they were wholly independent of one another.
Each has a separate article in the Constitution which outlines its power. This is known as the separation of powers.
- SEPARATION OF POWERS
What is the ineligibility clause?
The ineligibility clause of Article one prevented any one person from holding office in more than over one branch at any given time, which prevented individuals from gaining too much individualist power.
- BIPARTISANSHIP
The majority of the Founding Fathers were sceptical of the party and their roles.
They sought to ensure that the Constitution would need compromise.
During the debates on ratification, Hamilton said that (they) we are attempting by this constitution, to abolish factions, and to unite all parties for the general welfare.
There is no establishment of the two-party system in the Constitution, and via the separation of powers, the branches were required to cooperate in order to actually exercise their power.
Different elections and appointments for each branch made it difficult for any one faction/party to control all of the branches at any given time, which solidified the compromise.
- FEDERALISM
The Founding Fathers wanted the defend the rights of their states, but they wholly recognised the need for a strengthened central government.
Federalism enabled a system of shared sovereignty, where the Federal government would have authority over some aspects of political life while states would remain sovereign over others.
This would mean that all states’ rights and individual cultures were not neglected – by including the concept of federalism in the Constitution, it would serve as a protector of states’ rights, but would also limit both state and federal governments’ power through the division of their political authority.
KEY TERM
Principle
A fundamental idea or a belief. Constitutional principles may not be named within the Constitution, but they can be seen throughout the entirety of the writing.
KEY TERM
Limited government
A government restricted by what power it can exercise and what power it can’t exercise – these limits are laid out by the checks and balances in the US Constitution
KEY TERM
Separation or powers
Complete separation of three branches of government… this is the separation of powers, buildings, and personnel.
KEY TERM
Checks and balances
Power of one branch to prevent the action of another branch. All branches can do this to each other, hence the ‘balance’ of the ‘checking’.
KEY TERM
Bipartisanship
Ability of two or more parties to collaborate with each other to achieve an outcome. The supermajorities outlined in the constitution mean that this is enforced.
- CHECKS AND BALANCES
Further influence from the French philosopher meant that the Founding Fathers included checks and balances in the Constitution.
James Madison, whilst arguing for the ratification of the Constitution, wrote that ambition must be made to counteract ambition – which essentially means that each branch of the federal government had been given power to oversee the actions of the other branches and even, prevents the other branches from acting.
In The Spirit of the Laws, Montesquieu argues that in order to prevent the abuse of power, it is necessary from the very nature of things that power should be a check to power.
- CHECKS AND BALANCES
What is the difference between separation of powers and checks and balances?
There multiple differences between the separation of powers and checks and balances:
- separation of powers is a division between branches of government, whilst checks and balances is one branch impeding the action of another branch.
- separation of powers is power exercised by one branch of government, whilst checks and balances refers to how in order to exercise a power, the branches must cooperate.
- separation of powers is how the presidential power of the pardon is exercised mostly solely by the president, whilst checks and balances can be seen through when to pass any legislation, both houses of Congress must vote to approve it and the president must sign it.
- CHECKS AND BALANCES
Checks on the Executive;
By Congress
The Founding Fathers were most anxious about having a super-controlling singular executive they had created… the President.
The Executive is the ‘most checked’ because of this fear.
- AMEND/DELAY/REJECT legislation
- Veto an override
- Power of the Purse
- Declaration of War
- Ratification of Treaties.
- Confirmation of Appointments.
- Congressional Committee Investigations (similar to Select Committees, that investigate issues, but they have greater powers to force witnesses to give evidence) e.g., See McCarthyism.
- Impeachment (Donald Trump + Bill Clinton (Monica Lewinsky)
- CHECKS AND BALANCES
Checks on the Executive;
By Judiciary
Nixon bugged the Democratic Headquarters (Watergate Scandal). This was authorised by the White House. All the President’s Men. He had installed a tape-recording device in the Oval Office which recorded all of his comments.
He refused to give over the tapes… so he resigned.
They can declare actions of any members of executive branch unconstitutional.
United States V Richard Nixon (1974) court ordered the President to handover ‘White House Tapes’ and therefore stop impeding investigation into the Watergate affair.
This was a plan to infiltrate the Democrat HQ – it was after the election, that it became known that the burglars were from the White House.
‘Nobody, Mr President, is above the law or the Constitution’
More recently… State of Washington V Donald J Trump – federal courts placed temporary restraining order on president’s executive order that banned Muslims from 7 Muslim-majority countries from entering the USA.
- CHECKS AND BALANCES
Checks on Judiciary;
By Congress
By two ways:
- Impeachment trials
- Proposition of constitutional amendments
- Impeachment trials and removal from office:
Federal judge Thomas Porteous was impeached for corruption in 2010.
Following the guilty verdict in the Senate, he was removed from Office.
- Proposition of constitutional amendments:
Congress can occasionally effectively overturn SCOTUS rulings with a rarely used procedure.
For example, in 1896 SCOTUS ruled federal income tax was unconstitutional (because income tax contradicts liberty as people don’t have the choice to decide how their money is spent), leading to the 16th Amendment, which granted Congress the power to levy federal income tax.
- CHECKS AND BALANCES
Checks on Judiciary;
By Executive
- Nominates all federal judges – federal judges are nominated to trial courts, appeal courts, and SCOTUS. This is one of the most fundamental powers of the President because of the power that SCOTUS has. Also, because S.C Justices are appointed for life. Through selection of judges using a judicial philosophy that matches theirs, presidents hope to mould the outlook of the Court in future years. E.g., Trump appointing Conservative Amy Coney Barrett following the death of the liberal moderate S.C Justice Ruth Bader Ginsberg.
- POWER OF PARDON – This is a slightly more controversial power. Ford pardoned Nixon of any wrongdoing.
Clinton pardoned 140 people on her final day of presidency.
Obama pardoned 142 in the final three weeks.
Trump pardoned 116 in his last month of power, 143 people in total though.
- CHECKS AND BALANCES
Checks on Congress;
By Executive
The President can recommend legislation to Congress. This is formally done through the State of Union Address. This is the president’s main opportunity to say this is what I want to pass into law. Obama used 2010 to focus on Obamacare, and 2 months later, he signed the bill into law.
President George Washington delivered the first State of Union Address in 1790.
They often describe the state of the union as strong.
The power to veto bills passed by Congress.
Obama used the regular veto on 12 occasions, including in 2016 to block a bill that would have impacted and undone elements of Obamacare.
- CHECKS AND BALANCES
Checks on Congress;
By Judiciary
Judicial review – this is a significant power that would declare any Acts of Congress as unconstitutional and consequently null and void.
In 2013, the US V Windsor case – the S.C declared that the Defense of Marriage Act 1996 was null and void, paving the way for legal challenges to the bans on same-sex marriage in many states.
This led ultimately to the SCOTUS ruling in 2015 that same-sex marriage was legal nationwide.
- CHECKS AND BALANCES
What is the political importance of checks and balances?
They are important because divided governments are more prominent:
In the 48 years between 1969 and 2016, we saw 35.5 years of divided governments.
24 of which saw the president’s party controlling neither house.
This isnt always the norm… previous 48 years saw divided government for only a decade - Trump had the majoirty in both houses.
- TRUMP + C/B
Why did the Founding Fathers believe the power of the Executive needed to be checked?
The Federalist Papers, established in the Autumn of 1787 (10th essay of the Federalist Papers):
‘men of factious tempers, of local prejudices, or of sinister designs, may, be intrigue, by corruption… betray the interests, of the people’
- TRUMP + C/B
What does James Madison believe about checks?
The Extract from The Federalist No. 51, by James Madison (February 1788) –
He addresses the system of checks and balances where he outlines how the constant aim is to divide and arrange several offices in such a manner as that each may be a check on the other
- TRUMP + C/B
What is Executive Order 13769?
Trump’s issue of the ‘Muslim Travel Ban’, also known as the Executive Order 13769 caused significant controversy.
- TRUMP + C/B
Explain the process of Executive Order 13769
This started back in December 2015 when two Pakistani (lawfully present in the USA) opened fire in California killing 14 people.
They had been radicalised… Trump then began to regularly feature the Muslim Ban in his speeches.
The Executive Order 13769 was issued one week into his presidency, and banned the entry of people from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen for at least 90 days.
Missing from the list was Saudi Arabia – Trump had business interests in S.A.
- TRUMP + C/B
Did the Federal Courts (Judiciary) block this order?
Why?
In 3 days, there were 50 cases filed in Federal Courts around the country calling on the courts to halt the order
- TRUMP + C/B
How did the Judiciary block this order?
January 2016, within the order being issued in two days, a federal judge signed a temp restraining order which halted it.
Acting Attorney General Sally Yates (a part of Obama’s administration, who was pending Senate confirmation from Trump) issued a statement barring any employee of the US Department of Justice from defending Trump in court.
Trump fired her.
- TRUMP + C/B
Washington V Trump
Washington had filed a legal challenge to the Order in Federal Court.
Feb 3rd 2016 -Judge James Robart ruled in favour of Washington. This extended the ban on Trump’s order nationwide. The order banned on the account of it being discriminatory based on religion
- TRUMP + C/B
How did Trump react to the Washington V Trump court result?
On Twitter, Trump said (Feb 2017):
‘what is our country coming to when a judge can halt a Homeland Security travel ban and anyone, even with bad intentions, can come into US?’
- TRUMP + C/B
What does this event tell us about the judicial checks on the president?
The Courts have showed significant willingness to challenge the Executive on issues that are very high up on his agenda.
Though, when exploring whether the courts behaved in line with judicial neutrality and political impartiality… both the federal trial and appeal courts looked as though they behaved hastily.
They offered opinion that was not supported by any fundamental legal argument, whereas the Supreme Court offered a more ‘respectful and low-temperature’ opinion which indicates just how weak judicial impartiality is.
