CYBERLAND UNIVERSITY OF NORTH AMERICA
Dr. Almon Leroy Way, Jr.
University President & Professor of Political Science
NOTES ON THE PRINCIPAL CHARACTERISTICS
OF THE AMERICAN CONSTITUTIONAL SYSTEM
CONSTITUTIONALISM (CONSTITUTIONAL GOVERNMENT):
The authority of government is defined, limited, and dis-
tributed by law--by the fundamental law of the Constitu-
REPUBLICANISM (REPUBLICAN GOVERNMENT):
The U.S.A. is a REPUBLIC--a CONSTITUTIONAL REPUBLIC.
There are no inherited offices in the government.
Every office in the government, legislative, execu-
tive or judicial, is filled by either--
Election--direct or indirect;
Appointment according to law.
No government office is occupied by a hereditary
monarch or titled nobleman.
The U.S. Constitution prohibits both the national govern-
ment and the states from granting or officially recogniz-
ing titles of nobility. [Article I, Sections 9 & 10]
Moreover, the U.S. Constitution obligates the national gov-
ernment to guarantee each state a republican form of gov-
ernment. [Article IV, Section 4]
These constitutional provisions were intended to enhance
the republican character of American government.
SEPARATION OF POWERS:
THREE SEPARATE BRANCHES OF GOVERNMENT:
The U.S. Constitution divides the national government
into three separate branches--legislative, executive,
The three branches of the national government are
INSTITUTIONALLY SEPARATE from and LARGELY INDEPENDENT
of one another.
ALLOCATION OF POWERS AMONG THE THREE BRANCHES:
The U.S. Constitution--
Grants certain powers to the national govern-
Allocates these powers among the three branches
of the government.
Each governmental branch is given its own set of pow-
Each branch has its own separate constitutional
grant of authority.
The powers of Congress are mainly LEGISLATIVE
in character--mainly lawmaking powers.
The powers of the President are primarily
EXECUTIVE--authority to ENFORCE, or CARRY OUT,
The powers of the U.S. Supreme Court and the
other Federal Courts are JUDICIAL.
The power of the courts to INTERPRET, or
CONSTRUE, the law.
The courts have power to decide--
The meaning and intent of the
How the law is to be applied
in particular cases.
SEPARATION OF PERSONNEL:
The Constitution requires different personnel (dif-
ferent people) in each of the three branches of the
The Constitution prohibits the practice of the same
persons simultaneously holding office in two or more
branches of the government.
Before an officeholder in one branch of the national
government can legally take office in another branch,
he must first resign the office he is currently hold-
(1) An incumbent U.S. Senator runs for and is
Before he can be inaugurated as President and
assume the office, he must first resign his seat
in the U.S. Senate.
(2) The President wants to appoint a particular U.S.
Representative to an important post in the Cabi-
net--say, Secretary of the Treasury.
The President makes the appointment and the Sen-
ate confirms it.
Before the Representative can take the executive
office to which he has been appointed, he must
resign his seat in the U.S. House of Representa-
(3) A U.S. Supreme Court justice, due to advanced
age and declining health, announces his resigna-
tion, thereby creating a vacancy on the Court.
The President appoints his Attorney General to
fill the vacancy and the Senate confirms the
Before the Attorney General can join the Supreme
Court, he must resign his executive office--the
office of Attorney General of the U.S.A.
TERMS OF OFFICE FIXED, OR SPECIFIED, IN THE CONSTITUTION:
The U.S. Constitution specifies the terms of office
of national legislators, the chief executive, and
members of the Federal Judiciary:
Two-year terms for U.S. Representatives and
six-year terms for U.S. Senators;
A four-year term for the President;
Terms during good behavior for all federal
The personnel in one branch of the government
cannot be removed from office (before their
terms expire) simply because they lose the the
support and favor of another branch.
For example, the President does not have to re-
sign his office if he loses the confidence or
support of a simple majority (50.1 percent) in
either house of Congress, or even in both
SEPARATE & INDEPENDENT ELECTION OF THE CHIEF EXECUTIVE:
The Constitution mandates election of the President
separately from and independently of the legislative
Every four years, congressional elections and the
election of presidential electors are held at the
same time and in the same polling places.
However, the congressional elections on the one hand
and the election of presidential electors on the
other are entirely different sets of elections.
The success of a presidential candidate at the polls
is not dependent upon the success of his party's can-
didates for seats in Congress.
One party's candidate for President can win the
presidential election, while the opposing party
wins a majority of the seats in either one or
both houses of Congress.
COORDINATE ORGANS OF GOVERNMENT:
The Constitution makes the three branches COORDINATE
organs of government.
That is, they are constitutionally EQUAL to
each other in RANK.
No branch of the national government is constitution-
ally subordinate to another branch.
In particular, neither of the two elective branches
of government is subordinate to the other.
Each elective branch--legislature or chief executive
--is responsible (accountable, or answerable) to its
own constituency, not to another elective organ of
CHECKS & BALANCES:
Under the U.S. Constitution, each of the three branches of
the national government has SOME AUTHORITY TO CHECK AND
CONTROL THE DECISIONS AND ACTIONS OF THE OTHER BRANCHES.
Each branch of government has the right--
To share or take part, to some degree, in the main
functions of the other branches-- And in so doing, to--
Withhold consent and support in the areas where
it shares decisionmaking authority with the
Delay and block the actions of the other
Thereby check and restrain the other branches
in the exercise of their powers--
Preventing them from usurping its own
powers; Forcing them to stay within the limits of
their proper authority.
CHECKS & BALANCES--EXAMPLES:
(1) How the President Can Check and Restrain Congress:
The President shares the national legislative authori-
ty with the two chambers of Congress.
A legislative bill passed by the Senate and House of
Representatives cannot become law without the Presi-
dent's consent and signature--
UNLESS, after the President has vetoed the bill
and returned it to Congress, each of the two
chambers, on a vote of reconsideration, produces
a two-thirds vote to pass the bill over the
The President's power to veto national legislation is
a VERY POTENT CHECK on the power of Congress.
The presidential veto is made potent by the
sheer difficulty of getting a two-thirds vote
in the two houses of Congress to override the
For all practical purposes, the President is a
THIRD HOUSE of the national legislature. (2) How Congress Can Check and Restrain the President:
Obviously, the power of Congress to override a presi-
dential veto is a rather WEAK CHECK on the President.
There are other, more potent congressional checks on
Congress can refuse to pass a legislative bill
desired by the President.
Most importantly, Congress can refuse to
appropriate funds requested by the execu-
The Senate can refuse to confirm a presidential
appointment and thereby prevent it from going
One third of the Senate, plus one additional
Senator, can block ratification of a treaty sub-
mitted by the President.
If extraordinary action is deemed necessary, Congress
can institute IMPEACHMENT PROCEEDINGS against the
The House of Representatives, by simple majority
vote, brings an IMPEACHMENT CHARGE against the
The Senate TRIES the President on the impeach-
The Senate, by at least a two-thirds vote, CON-
VICTS the President of the crime or other act of
misbehavior with which he is charged.
On conviction by the Senate, the President is
removed from office and permanently barred hold-
ing any government office under the U.S. Consti-
(3) How Congress Can Check and Restrain the U.S. Courts:
Congress can check the Federal Courts by enacting laws
Increase the size (membership) of the Supreme
Court and reduce the Court's appellate jurisdic-
Change the number and jurisdiction of the LOWER
FEDERAL COURTS--U.S. Courts inferior, or lower,
in rank than the Supreme Court.
The Senate can--
Confirm or reject federal judges appointed by
Thereby impact upon the membership and political
philosophy of the Federal Judiciary.
When extraordinary action is deemed necessary, Con- gress can institute impeachment proceedings against
federal judges, including Supreme Court justices.
(4) How the President Can Check and Restrain the U.S.
The President can join the two houses of Congress in
checking and restraining the Federal Courts.
By consenting to and signing congressional leg-
Increasing the size of the Supreme Court
and reducing its appellate jurisdiction;
Changing the number and jurisdiction of
the lower Federal Courts.
When vacancies on the U.S. Courts occur, the President
appoints federal judges, subject to Senate confirma-
In exercising this power, the President may have
an impact upon the membership and political phi-
losophy of the Federal Courts.
But this is not a strong check on the Federal
Federal judges serve during good behavior and
therefore enjoy the benefit of JUDICIAL INDEPEN-
Once a judge has been appointed and the
Senate has confirmed the appointment, the
President has no control over the judge's
A judge is answerable neither to the chief
executive nor to the legislature for his
decisions in cases coming before his
(5) How the U.S. Courts Can Check and Restrain Congress
and the President:
Through exercise of the power of JUDICIAL REVIEW.
A federal court can declare UNCONSTITUTIONAL and
NULL AND VOID a statute enacted by Congress.
That is, the court can decline to uphold
and enforce a congressional statute on the
grounds that the statute is contrary to
the U.S. Constitution.
CHECKING THE EXECUTIVE:
A federal court can INVALIDATE--i.e., set aside,
declare ILLEGAL and OF NO FORCE AND EFFECT--a
decision or action of the President or another
federal executive officer on the grounds that
the decision violates the Constitution or a fed-
PERSONAL MOTIVES SUPPORTING CHECKS & BALANCES--THE INCEN-
TIVE TO CHECK & RESTRAIN: (1) MULTIPLE CONSTITUENCIES WITH VARYING & COMPETING
Under the U.S. Constitution, supplemented by
federal and state laws and longstanding politi-
cal practice, the two elective branches of the
national government are provided with DIFFERENT
CONSTITUENCIES WITH VARYING AND COMPETING INTER-
The legislature and the chief executive
are made RESPONSIVE TO DIFFERENT SETS OF
INTERESTS AND DEMANDS--different sets of
interests and demands that are often in
conflict with each other.
There is no single national majority in the
The American electorate is divided into
MULTIPLE CONSTITUENCIES WITH VARYING AND
There are 435 U.S. House constituencies, 50 U.S.
senatorial constituencies, and 51 presidential
The 435 members of the U.S. House of Rep-
resentatives are elected every two years
by the voters in the 435 localized con-
stituecies (the congressional districts).
The 100 members of the U.S. Senate are
chosen by the voters in 50 statewide con-
stituencies, one-third of the Senators be-
ing elected to six-year terms every two
The President is chosen for a four-year
term by presidential electors elected by
the voters in 50 statewide constituencies,
plus one district constituency (the Dis-
trict of Columbia).
The personnel in the different elective
branches or organs of the national govern-
ment are responsive to different sets of
Members of the House of Representatives
are highly responsive to localized inter-
Senators are highly responsive to state-
The President has to be responsive to
statewide interests in a very large number
of states, including those states with
large populations and therefore large num-
bers of presidential electors.
The interests to which the President
must be responsive tend to be strong
throughout the entire country.
By contrast, a Senator has to be
responsive only to interests that
are strong or dominant in his own
state, even if his state has a very
small population and a very small
percentate of the total number of
voters in the U.S.A.
(2) DIFFERENT TIMES & METHODS FOR SELECTING THE PER-
SONNEL IN THE DIFFERENT BRANCHES OF GOVERNMENT:
The U.S. Constitution, by providing different
times and methods for choosing the personnel in
the different branches of the national govern-
Reinforces the tendency of the government-
al branches to respond to varying and com-
Strengthens their incentives to check and
restrain one another.
Since the climate of public opinion varies from
time to time, the expiration of the terms of
Senators, Representatives, and the President at
different times is most significant.
It means the reelection chances of differ-
ent sets of elected officeholders will be
affected by different shifts in public
Different swings in the mood of the
voters not only affect reelection
They also affect the political be-
havior of elected officeholders
Obtain their offices through presidential
appointnent, with Senate consent--
Rather than by popular election, as
is the case with legislators and the
chief executive; Hold office during good behavior--
Rather than being chosen to terms
limited to a specified number of
years, as is the case with the Pres-
ident and members of Congress.
Because of this, the federal judiciary is not
subject to the pressures generated by temporary,
shortterm popular majorities.
Federal judges are truly independent of
and insulated from the popular passions of
They do not feel the need to win voter
popularity contests by giving in to--
The current majority in the legisla-
An incumbent chief executive who is
currently popular with the voters.
In short, each of the three branches of the national
government is given a WILL OF ITS OWN by--
Multiple constituencies with varying and com-
Different times and methods for choosing the
personnel in each of the three branches.
And the will of each branch of government has a ten-
dency to be at odds with, rather than in agreement
with, the wills of the other branches.
This tendency of the will of each branch to clash
with those of the other branches insures that, except
under the most extraordinary or abnormal conditions
in the U.S.A., the Congress, the President, and the
federal courts will not unite the three branches of
the national government in the UNIMPEDED AND UNRE-
STRAINED PURSUIT OF A DETERMINED COURSE OF GOVERN-
Giving short shrift to the objections of polit-
ically significant minorities;
Using the combined legislative, executive, and
judicial powers to rule in a tyrannical manner.
Rather than joining together in a common cause and
conspiring to circumvent the constitutional separa-
tion of powers, the three branches of government are
much more likely to counteract and impede each other
and thereby check and restrain one another in the ex-
ercise of power.
STRICT LEGISLATIVE BICAMERALISM:
Each of the two houses of Congress has the power of ABSO-
LUTE VETO over legislation favored by the other house.
The consent of a majority in each chamber is required
for passage of a legislative bill by Congress.
This make's the system of checks and balances a system in
which FOUR governmental entities check and restrain one an-
In the U.S. national government, there are four enti-
tities--the House of Representatives, the Senate, the
President, and the Federal Courts--checking and re-
straining each other.
Operation of the principles of checks and balances and
strict legislative bicameralism emphasize INTERDEPENDENCE
of the different organs of the national government.
The various institutions of the national government
are DEPENDENT UPON ONE ANOTHER.
Each principal organ of the central government
depends upon the COOPERATION and SUPPORT of the
others for the performance of its primary func-
Balanced government is the consequence of combining separa-
tion of powers, checks and balances, and strict legislative
The U.S. Constitution limits the authority of the national
government by dividing and distributing its powers among
several separate and largely independent governmental
organs. These governmental institutions--
Reflect varying and competing interests;
Therefore have strong incentives to counteract
and check one another.
In counteracting and checking each other, the prin-
cipal organs of government--
Maintain an equilibrium, or balance, of power
in the government;
Prevent any single faction or interest from
dominating the entire government and all of its
Covered in Unit One, Lecture Topic b: "Federalism & the
American Constitutional System."
Covered in the TEXTBOOK, Chapter 1, pages 21-25.
Covered briefly in this set of NOTES, under "Checks &
CONSTITUTIONAL GUARANTEE OF INDIVIDUAL RIGHTS & LIBER- TIES:
Covered in Unit Two.
Return to Page One, Unit One
THE AMERICAN CONSTITUTIONAL SYSTEM
Constitutional Democracy & the American Constitutional System
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