Dr. Almon Leroy Way, Jr.,

University President & Professor of Political Science

1. Constitutionalism -- Constitutional Government:

In the American constitutional system, the authority of government is defined, limited, and distributed by law -- by the fundamental law of the United States Constitution. American government is conducted in accordance with and within the limits set by the fundamental law of the Constitution. The U.S. Constitution, as a body of written basic law, is superior to and takes precedence over all ordinary acts of Congress and the state legislatures and over all decisions and actions of the executive branches of the national and state governments. Under the Constitution, restrictions on the discretionary authority of public officers and institutions are clearly recognized and regularly enforced. In short, the Constitution effectively limits the power of government.

Thus, American government is limited government -- limited government under the Constitution. The powers of American government are effectively limited by law -- limited by the fundamental law of the Constitution.

The U.S. Constitution not only limits the authority of the U.S. central government, it also limits the authority of the states and their local subdivisions. The authority of a state and its local communities is further limited by its own state constitution.

American constitutionalism at the national level dictates that the central government operate in accord with the provisions of the U.S. Constitution and that it not exceed the authority granted to it by the Constitution.

2. Republicanism -- Republican Government:

The United States of America is a republic. There are no inherited offices in the government. Every office in the government, legislative, executive or judicial, is filled by either election -- direct or indirect -- or appointment according to law. No government office is occupied by a hereditary monarch or titled nobleman.

The U.S. Constitution prohibits both the national government and the states from granting or officially recognizing titles of nobility. [Article I, Sections 9 & 10]

Moreover, the U.S. Constitution obligates the national government to guarantee each state a republican form of government. [Article IV, Section 4]

These constitutional provisions were intended to enhance the republican character of American government.

The American system of government is a constitutional republic -- a political regime in which the features of constitutionalism and republicanism are combined. The U.S.government is a constitutional republic, and so is each of the fifty states comprising the American federal union.

3. Separation of Powers:

a. Three Separate Branches of Government:

The U.S. Constitution divides the national government into three separate branches -- legislative, executive, and judicial. The three branches of the national government are institutionally separate from and largely independent of one another.

b. Allocation of Power Among the Three Governmental Branches:

The U.S. Constitution (1) grants certain powers to the national government and (2) allocates these powers among the three branches of the government. Each governmental branch is given its own set of powers; each branch has its own separate constitutional grant of authority.

        Congress. The powers of Congress are mainly legislative in character -- primarily lawmaking powers.

        The President. The powers of the President are primarily executive. Presidential power is mainly authority to enforce, or carry out, the laws.

        The U.S. Courts. The powers of the U.S. Supreme Court and the other federal courts are judicial. Judicial authority is the power of the courts to interpret, or construe, the law. That is, the courts have power to decide (1) the meaning and intent of the law and (2) how the law is to be applied in particular cases.

b. Separation of Personnel:

The Constitution requires different personnel (different people) in each of the three branches of the national government. 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 holding. Examples of the application of this constitutional rule include the following:

    An incumbent U.S. Senator runs for and is elected President. Before he can be inaugurated as President and assume the office, he must first resign his seat in the U.S. Senate.

    The President wants to appoint a particular U.S. Representative to an important post in the Cabinet -- say, Secretary of the Treasury. The President makes the appointment and the Senate 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 Representatives.

    A U.S. Supreme Court justice, due to advanced age and declining health, announces his resignation, thereby creating a vacancy on the Court. The President appoints his Attorney General to fill the vacancy and the Senate confirms the appointment. 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.

c. 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. The Constitution specifies two-year terms for U.S. Representatives, six-year terms for U.S. Senators, a four-year term for the President, and terms during good behavior for all federal judges.

What is the significance of this arrangement? 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 resign 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 houses.

d. Separate and Independent Election of the Chief Executive.

The Constitution mandates election of the President separately from and independently of the legislative branch. 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 political party's candidates 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.

e. Coordinate Organs of Government:

The Constitution makes the three governmental branches coordinate organs of government. That is, they are constitutionally equal to each other in rank

. No branch of the national government is constitutionally subordinate to another branch. In particular, neither of the two elective branches of government is subordinate to the other. Each elective organ -- legislature or chief executive -- is responsible (accountable, or answerable) to its own constituency, not to another elective organ of government.

4. Checks and Balances:

Under the U.S. Constitution, each of the three branches of the national government has some authority to check and control the decisdions and actions of the other branches. Each branch of government has the right to share or participate, to some degree, in the primary activities or functions of the other branches and, in so doing, to withhold consent, cooperation, and support in the areas where it shares decisionmaking authority with the other branches, delay and block the actions of the other branches, and thereby check and restrain the other branches in the exercise of their powers. Through the use of checks and restraints, one governmental branch can prevent the other branches from successfully encroaching on and usurping its own powers and force them to stay within the limits of their constitutional powers.

        How the President Can Check and Restrain Congress. The President shares the national legislative authority with the two chambers of Congress. A legislative bill passed by the Senate and House of Representatives cannot become law without the President'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, marshals a two-thirds vote to pass the bill over the President's veto.

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 utter difficulty of getting a two-thirds vote in the two houses of Congress to override the veto. For all practical purposes, the President is a third house of the national legislature.

        How Congress Can Check and Restrain the President. Obviously, the power of Congress to override a presidential veto is a rather weak check on the President. However, there are other, more potent checks available that enable Congress to thwart and restrain the President. Congress can refuse to pass a a legislative bill desired by the President. Most importantly, Congress can refuse to appropriate funds requested by the President or any of the executive branch departments or agencies.

The Senate, deciding and deciding alone, without the necessity of House concurrence, can exercise some potent checks and restraints on presidential power. The Senate can refuse to confirm a presidential appointment and thereby prevent it from going into effect. One third of the Senate, plus one additional Senator, can block ratification of a treaty submitted by the President.

If extraordinary action is deemed necessary, Congress can institute impeachment proceedings against the President. In impeachment proceedings, the House of Representatives, by simple majority vote, brings an impeachment charge against the President. The Senate tries the President on the impeachment charge. If the Senate produces at least a two-thirds vote to convict the President of the crime or other act of misbehavior with which he is charged, he is removed from office and permanently barred from again holding any government office under the U.S. Constitution.

        How Congress Can Check and Restrain the U.S. Courts. Congress can check the federal courts by enacting laws which increase the size (membership) of the Supreme Court and reduce the Court's appellate jurisdiction and which change the number and jurisdiction of the lower federal courts.

The Senate can confirm or reject federal judges appointed by the President and thereby impact upon the membership and political philosophy of the federal judiciary.

When extraordinary action is deemed necessary, Congress can institute impeachment proceedings against federal judges, including Supreme Court justices.

        How the President Can Check and Restrain the U.S. Courts. The President can join the two houses of Congress in checking and restraining the federal courts. How? By consenting to and signing congressional legislation increasing the size of the Supreme Court, reducing its appellate jurisdiction, and 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 confirmation. In exercising this power, the President may have an impact upon the membership and political philosophy of the federal courts. However, this is not a strong check on the federal judiciary. Federal judges serve during good behavior and therefore enjoy the benefit of judicial independence. Once a judge has been appointed and the Senate has confirmed the appointment, the President has no control over the judge's decisions. A judge is answerable neither to the chief executive nor to the legislature for his decisions in cases coming before his court.

        How the U.S. Courts Can Check and Restrain Congress and the President.

The federal courts, through exercise of the power of judicial review, can check and restrain Congress and the President.

    Checking Congress:

    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 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 or action violates the Constitution or a federal statute.

5. Personal Motives Supporting Checks and Balances -- The Incentive to Check and     Restrain:

        Multiple Constituencies with Varying and Competing Interests. Under the U.S. Constitution, supplemented by federal and state laws and longstanding political practice, the two elective branches of the national government are provided with different constituencies with varying and competing interests. 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.

Hence, there is no single national majority in the U.S.A. The American electorate is divided into multiple constituencies with varying and competing interests.

There are 435 U.S. House constituencies, 50 U.S. senatorial constituencies, and 51 presidential constituencies. The 435 members of the U.S. House of Representatives are elected every two years by the voters in the 435 congressional districts, which are essentially local constituecies with local interests.

The 100 members of the U.S. Senate are chosen by the voters in 50 statewide constituencies, one-third of the Senators being elected to six-year terms every two years. The U.S. senatorial constuencies tend strongly to reflect statewide interests, interests that are dominant or very strong statewide and vary from the local interests reflected by the U.S. House election districts.

The President is chosen for a four-year term by presidential electors elected by the voters in 50 statewide constituencies, plus one federal capital district constituency, namely, the District of Columbia.

As a result of this arrangement, the personnel in the different elective branches or organs of the national government are responsive to different sets of interests. Members of the House of Representatives are highly responsive to local interests, while U.S. Senators are highly responsive to statewide interests.

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 numbers 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 percentage of the total number of voters in the U.S.A. And a Representative has to be responsive to the dominant or very strong local interests in his congressional district, even though those interests may be at odds with the prvailing sentiments and views in the country as a whole.

        Different Times and Methods for Selecting the Personnel 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 government, (1) reinforces the tendency of the different governmental branches to respond to varying and competing interests and (2) strengthens their incentives to check and restrain one another.

Since the climate of public opinion differs 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 different sets of elected officeholders will be affected by temporal variations in the popular mood, i.e., by various shifts in public opinion. Since different swings in the mood of the voters affect reelection chances of incumbent elected officeholders differently, these swings in the popular mood also affect the political behavior of elected officeholders differently.

Federal judges obtain their offices through presidential appointnent (with Senate consent), rather than by popular election, as is the case with legislators and the chief executive. And federal judges hold office during good behavior, rather than being chosen to terms limited to a specified number of years and therefore having to face periodic reelection or reappointment, as is the case with the President and members of Congress. Because of this, the federal judiciary is not (or ought not to be) subject to the pressures generated by temporary, shortterm popular majorities. Federal judges are truly independent of and insulated from the popular passions of the moment, and they do not (or should not) feel the need to win voter popularity contests by giving in to the current majority in the legislature or to an incumbent chief executive who is currently popular with the voters.

In short, multiple constituencies with varying and competing interests, coupled with different times and methods for choosing the personnel in the different U.S. governmental organs, gives each of the three branches of the national government a will of its own. And the will of each branch of government has a tendency 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 unrestrained pursuit of a determined course of governmental action, giving short shrift to the objections of politically significant minorities and using the combined legislative, executive, and judicial powers to rule in an overriding and tyrannical fashion. Rather than joining together in a common cause and conspiring to circumvent the constitutional separation 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 exercise of power.

6. Strict Legislative Bicameralism:

Each of the two houses of Congress has the power of absolute 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 major governmental entities check and restrain one another. In the U.S. national government, there are four principal governmental organs, or institutions -- the House of Representatives, the Senate, the Presidency, and the federal courts -- checking and restraining each other.

Operation of the principles of checks and balances and strict legislative bicameralism result in a fundamental political situation where four different and largely independent governmental entities are interdependent. The four principal organs of the national government are muturally dependent, i.e., dependent upon one another. Each of these major institutions of the central government, for effectiveness and success in the performance of its primary functions, is dependent upon the consent, cooperation, and support of the other governmental institutions.

7. Balanced Government:

Balanced government is the consequence of combining separation of powers, checks and balances, and strict legislative bicameralism. One very important way in which the U.S. Constitution limits the authority of the national government is by dividing and distributing its powers among several separate and largely independent governmental organs. These governmental institutions reflect varying and competing interests and therefore have strong incentives to counteract and check one another. In counteracting and checking each other, the principal organs of government maintain an equilibrium, or balance, of power in the government and prevent any single faction or interest from dominating the entire government and all of its parts.

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