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.

B. 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 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.

C. 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.

D. 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.

TASK III. Match the following headings to the passages below:

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

2) How Congress Can Check and Restrain the President.

3) How Congress Can Check and Restrain the U.S. Courts.

4) How the President Can Check and Restrain Congress.

5) How the President Can Check and Restrain the U.S. Courts.

a. 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.

b. 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.

c. 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.

d. 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.

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

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.

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 or action violates the Constitution or a federal statute.

TASK IV. a) Read and translate the following passages, use the GLOSSARY; b) define constitutional gov­ernment; limited government; republican government:

1) On the inner workings of the Court, social scientists long have argued that political creatures inhabit the Court, that justices are not simply neutral arbiters of the law. Since 1789, the beginning of constitutional gov­ernment in the United States, those who have ascended to the bench have come from the political institutions of government or, at the very least, have affiliated with particular political parties.

2) Former Supreme Court justice Thurgood Marshall, in reflecting during the bicentennial in 1987 on the Constitution and its opening three words remarked: “I do not believe that the meaning of the Constitution was forever “fixed” at the Philadelphia Convention. Nor do I find the wisdom, foresight, and sense of justice exhibited by the Framers particularly profound. To the contrary, the government they devised was defective from the start, requiring several amendments, a civil war, and momentous social transformation to attain the system of constitutional government, and its respect for the individual freedoms and human rights, we hold as fundamental today.

3) Locke’s arguments in favor of individual rights, property, limited government, and the right of the people to hold their governors accountable to them, including through the threat of rebellion, appealed to the American founding generation, influencing not only the drafting of the Declaration of Independence, but also the Constitution.

4) Modern writers, like English philosophers John Locke (1632–1704) and William Blackstone (1723–80), offered elaborate theories based on natural law, and both Locke and Blackstone influenced many American thinkers on matters relating to natural law, natural rights, individualism, the right of revolution, and the need for limited government.

5) Locke explicitly linked the concept of natural law with advocacy of limited government and the right of revolution.

6) In the United States, republicanism denotes limited government in the form of representative democracy. Citizens elect representatives who govern on their behalf, but within the constraints of the rule of law. Republican governments have nonhereditary leadership for fixed terms, are dependent upon the will of the people, and aim at promoting the collective public interest.

7) Alexander Hamilton, in Federalist 84, described the prohibition of titles of nobility as being “the cornerstone of republican government,” noting that “so long as they are excluded there can never be serious danger that the government will be any other than that of the people.” In Federalist 85, Hamilton listed the prohibition as being among “the additional securities to republican government, to liberty, and to property.”

c) Describe the type of government existing in your country.

TASK V. a) Add bicameralism, unicameral, bicameral to complete and translate the following sentences, use the GLOSSARY;

1) The framers’ goal was to protect liberty, preserve popular government, and limit the threats of what we would now call the tyranny of the majority and the Constitution would secure these goals by setting up an elaborate machine that would use checks and balances, separation of powers, … , federalism, and self-interest to check political power.

2) … is the principle that describes the division of power in the U.S. legislative branch between the House of Representatives and the Senate. … is provided for in Article I of the U.S. Constitution and is one of the many checks placed upon legislative power.

3) … describes any legislature composed of two distinct chambers. The chambers, or houses, are often differentiated on the basis of their constituencies or method(s) of election or selection. A so-called lower house is normally directly elected by the general voting-age population, while the upper house may be appointed, directly elected, or indirectly elected. … , in the U.S. Constitution, provides for checks and balances of legislative authority by dividing its powers between the two houses, requiring concurrence in the passage of legislation while assigning unique authority to one chamber or the other, for example, ratification of treaties, confirmation of appointments, and origination of revenue bills.

4) The governments of many countries utilize … parliaments, though some democratic nations operate under a … (single chamber) parliament, an example being the Knesset in Israel.

5) The lengths of members’ terms differ by chamber, with lower-house delegates serving shorter terms (normally two years) and upper-house delegates serving longer ones (normally four to six years). When applied to governments in the United States, the U.S. Congress and 49 of the 50 states operate with … legislatures. Only Nebraska maintains a … legislature, a feature it implemented in 1937, championed by U.S. senator George W. Norris. The vast majority of local governments in the United States – cities, towns, boroughs, school districts, etc., – employ … bodies, such as city councils, boards, or commissions.

6) Dividing a parliament into two chambers establishes an internal check on legislative powers. To pass a law, both chambers must agree on exactly the same language, which requires compromise between the houses, thereby greatly reducing extremist legislation. Critics of … legislatures argue that they are inefficient and easily stalemated by partisan politics.

7) The … tradition in the United States may be traced to the British Parliament, which itself is a … institution. As each of the thirteen colonies in America established its government, many adopted the English model, although several, such as Pennsylvania, opted for a … body. The first U.S. constitution – the Articles of Confederation – created a … legislature in which each state, regardless of the size of its population or delegation to the congress, received one vote.

b) Describe the national legislature in your country.

TASK VI. Read the text to justify or to question the existence of bicameralism:

Scholars have made a number of arguments to explain the emergence of bicameral legislatures. One of the most common arguments for the emergence of bicameralism in Britain and its American colonies is that it helped to preserve “mixed governments,” to ensure that upper class elements of society were protected (Wood, 1969; Tsebelis and Money, 1997). In such settings, bicameralism allowed the upper chamber, dominated by aristocrats, to have a veto on policy. More generally, an explicit role of some bicameral systems has been the protection of some minority who is overrepresented in the upper chamber.

A second rationale for bicameralism is the preservation of federalism. The United States, Germany, and other federal systems use a bicameral system in order to ensure the representation of the interests of individual states and provinces, as well as the population of the country. Under “federal bicameralism”, the lower house is typically apportioned on the basis of population, while the upper house is divided amongst the regional units. Some countries, such as the United States, provide equal representation for the states regardless of their population or geographic size, while others, like the Federal Republic of Germany, unequally apportion the upper chamber by providing additional representation to the larger units.

TASK VII. Discuss the issues raised in the text; add, if possible, any other views of or approaches to the doctrine:

Major issues under the doctrine of separation of powers

The major purpose of the doctrine of separation of powers is maintaining the constitutional allocation of powers. Consequently, its chief concerns are whether some branch is improperly exercising powers the Constitution has assigned to another branch; whether one branch is improperly inhibiting another branch’s legitimate exercise of its powers; and whether one or another branch is improperly enhancing power at the expense of another branch.

There are two major problems in this area of constitutional law. The first is that the Constitution does not define the powers that it confers on the branches of government. While perhaps everyone might agree on what is central to legislative or executive or judicial action, there are cases involving governmental activities difficult to characterize under these headings. The second problem arises out of the so-called fourth branch of government, the administrative agencies. Many administrative agencies exercise legislative, executive, and judicial powers, and there have been difficulties incorporating them into a rigorous scheme of separation of powers.

TASK VIII. Read the text to describe Madison’s concerns about the new Constitution:

For Madison the immediate and pressing question was whether the newly proposed Constitution would indeed make for safe government. There were, he confessed to Jefferson (no. 22), reasons to fault the plan. Though it represented an advance over the Articles of Confederation – "a Confederacy of independent States" – it still was not more than "a feudal system of republics." As such it was not adequate to secure the federal government against the encroachments of the states nor "to prevent instability and injustice in the legislation of the States." The remedy for Madison lay in a congressional power to veto state laws, a proposal he had steadfastly fought for in the Philadelphia Convention but to no avail. "It may be asked how private rights will be more secure under the Guardianship of the General Government than under the State Governments, since they are both founded on the republican principle which refers the ultimate decision to the will of the majority." Madison found the answer to that question in the very extent of the republic: its sheer size and heterogeneity made possible the benign application of that "reprobated axiom of tyranny," divide and rule. But if a large republic made it difficult for "oppressive combinations" to form, so too did it make it difficult for "a defensive concert" against administrative tyranny. Here the Constitution ought to be scrutinized to see whether the government it established has "sufficiently controlled itself, from setting up an interest adverse to that of the entire Society." Further detailed evidence of what Madison took to be the ingredients of a sufficiently controlled government may be gathered from his close critique of Jefferson's draft of a constitution for Virginia, observations written for the would-be founding fathers of Kentucky (no. 25).

TASK IX. Provide your arguments to agree or disagree with former Supreme Court Justice Thurgood Marshall:

The Constitution of today is very different from the one written by the framers.

The document of 1787 was born of the politics of the times. It was a constitution written for an agrarian society fearful of central power. It was a constitution that provided for slavery and failed to guarantee explicitly the right to vote, and it was a document produced in an era well before the advent of the Internet, cell phones, cars, airplanes, and nuclear bombs. Moreover, as the historian Richard Hofstadter contended in The American Political Tradition, the men who wrote the Constitution went to Philadelphia with value-laden assumptions about human nature and theories of politics and economics that may be very different from the ones that many of us hold today. – Former Supreme Court Justice Thurgood Marshall, (1987)

Richard Hofstadter (1916 – 1970) – an American historian and public intellectual of the mid-20th century.

The following issues will help you to answer the exam question THE ORIGINS AND PRINCIPLES OF THE U.S. CONSTITUTION and to write your essay:

1. Colonial constitutional experience;

2. Practical application of European theories and ideas;

3. Federalism as a new constitutional order;

4. Constitutional government;

5. Republicanism;

6. Separation of powers – checks and balances;

7. Bicameralism.

Date: 2015-02-16; view: 407