THE AMERICAN CONSTITUTIONAL SYSTEM: PRINCIPAL CHARACTERISTICS

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 operates in accord with the provisions of the U.S. Constitution and that it does 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

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.

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.

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 decisions 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 decision-making 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.

5. 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 makes 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 mutually 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.
6. 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.

LANGUAGE PRACTICE AND COMPREHENSION CHECK

ACTIVE VOCABULARY

discretionary, to exceed, to enhance, to construe, to withhold, to encroach, to usurp, incentive

TASK I. a) Match the words to their definitions or synonyms:

1) discretionary; 2) to exceed; 3) to enhance; 4) to construe; 5) to withhold; 6) to encroach; 7) to usurp; 8) incentive

a) to seize and hold (a position, office, power, etc.) by force or without legal right; to use without authority or right; employ wrongfully; to commit forcible or illegal seizure of an office, power, etc.; to encroach; to seize, take over, or appropriate without authority;

b) available to be decided according to one’s own judgment; voluntary, arbitrary;

1) Evidence that racial hatred was a motivation for a crime may be taken into account, and criminal sentence may be … because the defendant intentionally selected his victim on account of the victim’s race.

2) “The Sixth Amendment … from federal courts, in all criminal proceedings, the power and authority to deprive an accused of his life or liberty unless he has or waives the assistance of counsel.”

3) An act punishable by a fine of not more than $1,000 or imprisonment for not more than six months is a misdemeanor, which can be tried without indictment, even though the punishment … that specified in the statutory definition of ‘‘petty offenses.’’

4) The Court, in upholding the power of federal judges to appoint private counsel to prosecute contempt of court actions, rejected the assertion that the judiciary … executive power in appointing such counsel.

5) “Where the subject matter requires a uniform system as between the States, the power controlling it is vested exclusively in Congress, and cannot … by the State.”

6) When a speech generates a perceived threat to public safety, the easiest police response may be to remove a speaker; yet, in such a case, opponents would have … to become violent if their actions would justify police action against a speaker, with serious consequences for the First Amendment freedom.

7) In 1793, the Court unanimously refused to grant the request of President Washington and Secretary of State Jefferson … the treaties and laws of the United States pertaining to questions of international law arising out of the wars of the French Revolution.

8) The actual exercise of appellate jurisdiction by the Supreme Court is one characterized by significant statutory discretion. Such … flexibility is not the rule for all other federal courts.

c) Translate the following sentences, use the GLOSSARY:

1) The right to petition creates incentives and protections for individuals and groups to communicate, act politically, and seek political change – by conveying citizens’ opinions directly to governing officials, placing issues on the political agenda, and pressuring government to respond to political problems.

2) State governments frequently offer tax reductions to businesses as an incentive to locate or to remain within the state. Some scholars warn that states are engaged in a “race to the bottom” as each one offers greater incentives, thereby reducing the tax revenues that fund government services.

3) Certain state tax incentive programs have been found to violate the commerce clause of the U.S. Constitution, which is intended to create a free trade area between and among the states.

4) A tax incentive violates the commerce clause when it has the effect of providing lower tax rates to in-state businesses than those imposed on out-of-state ventures. Because such tax incentives do not directly conflict with congressional legislation under the commerce clause, they are said to violate the “dormant” or “negative” commerce clause.

5) Although the Sentencing Commission was given significant discretionary authority “to determine the relative severity of federal crimes, to determine which crimes have been punished too leniently and which too severely,” Congress also gave the Commission extensive guidance in the Act, and did not confer authority to create new crimes or to enact a federal death penalty for any offense.

6) During the 1980s, the courts were no more receptive to suits, many by Members of Congress, seeking to obtain a declaration of the President’s powers. The political question doctrine as well as certain discretionary authorities were relied on.

7) Because conviction requires a two-thirds vote, this means that removal can occur only as a result of a two-thirds vote. Unlike removal, disqualification from office is a discretionary judgment, and there is no explicit constitutional linkage to the two-thirds vote on conviction. The Senate has determined that disqualification may be accomplished by a simple majority vote.

8) The Marshall Court also invoked the supremacy clause to enhance national supremacy with respect to the states. In McCulloch v. Maryland, the Court ruled that a state tax on the Bank of the United States violated the supremacy clause.

9) Even if the first trial is not completed, a second prosecution may be grossly unfair. It increases the financial and emotional burden on the accused, prolongs the period in which he is stigmatized by an unresolved accusation of wrongdoing, and may even enhance the risk that an innocent defendant may be convicted. Consequently, as a general rule, the prosecutor is entitled to one, and only one, opportunity to require an accused to stand trial.’’

10) Due process tends to secure equality of law in the sense that it makes a required minimum of protection for every one’s right of life, liberty and property, which the Congress or the legislature may not withhold.

11) The City of New York filed a lawsuit challenging Nixon’s refusal to spend appropriated monies for projects he did not support, and the Supreme Court ruled that presidents had no constitutional authority to withhold funds allotted by law.

12) In collecting personal income taxes, most States require employers to deduct and withhold the tax from the wages of employees.

13) Under a written constitution, which is law and is binding on government, the practice of judicial review raises questions of the relationship between constitutional interpretation and the Constitution – the law which is construed.

14) The Ninth Amendment, which states that the “enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people,” clearly recognized that individuals had a list of natural rights that the government could not restrict.

15) An ordinance making it a criminal offense for three or more persons to assemble on a sidewalk and conduct themselves in a manner annoying to passers-by was found impermissibly vague and void on its face because it encroached on the freedom of assembly.

16) The courts ensure that the administration of the law neither unduly encroaches upon nor curtails the liberties of those being regulated.

17) Critics argued that the Court had gone too far in striking down laws as unconstitutional. An ethic of judicial self-restraint no longer seemed operative, and the Supreme Court seemed to its critics to be usurping the powers of the elected legislatures by means of judicial subjectivism and thus looking to find ways to rationalize results that a majority on the Court held desirable.

18) Section 2 of the Twenty-first Amendment of the U.S. Constitution grants states the power to set minimum drinking ages, and it is unconstitutional for the federal government to usurp this power with a condition on its funding.

19) “The test may be stated as follows: what are the purpose and the primary effect of the enactment? If either is the advancement or inhibition of religion then the enactment exceeds the scope of legislative power as circumscribed by the Constitution.”

20) A defendant who is prosecuted in a single proceeding for multiple petty offenses, however, does not have a constitutional right to a jury trial, even if the aggregate of sentences authorized for the offense exceeds six months.

TASK II. a) Choose the heading in the text under which the following passages fall; justify your choice:

A. 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:

Date: 2015-02-16; view: 676