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-
      tion.

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;
                  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 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,
            and judicial.
            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-
                  ment;
                  Allocates these powers among the three branches
                  of the government.
            Each governmental branch is given its own set of pow-
            ers.
                  Each branch has its own separate constitutional
                  grant of authority.
            CONGRESS:
                  The powers of Congress are mainly LEGISLATIVE
                  in character--mainly lawmaking powers.
            PRESIDENT:
                  The powers of the President are primarily
                  EXECUTIVE--authority to ENFORCE, or CARRY OUT,
                  the laws.
            U.S. COURTS:
                  The powers of the U.S. Supreme Court and the
                  other Federal Courts are JUDICIAL.
                  JUDICIAL AUTHORITY:
                        The power of the courts to INTERPRET, or
                        CONSTRUE, the law.
                              The courts have power to decide--
                                    The meaning and intent of the
                                    law;
                                    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
            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 hold-
            ing.
            EXAMPLES:
            (1)  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.
            (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-
                 tives.
            (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
                 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.
      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
                  judges.
            SIGNIFICANCE:
                  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
                  houses.
      SEPARATE & 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 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
            government.

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
                  other branches;
                  Delay and block the actions of the other
                  branches;
                  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
                 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
                 sheer 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.      (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
           the President.
                 Congress can refuse to pass a legislative bill
                 desired by the President.
                       Most importantly, Congress can refuse to
                       appropriate funds requested by the execu-
                       tive branch.
                 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 sub-
                 mitted by the President.
           If extraordinary action is deemed necessary, Congress
           can institute IMPEACHMENT PROCEEDINGS against the
           President.
                 The House of Representatives, by simple majority
                 vote, brings an IMPEACHMENT CHARGE against the
                 President.
                 The Senate TRIES the President on the impeach-
                 ment charge.
                 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-
                 tution.
      (3)  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 jurisdic-
                 tion;
                 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
                 the President;
                 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.
           Courts:
           The President can join the two houses of Congress in
           checking and restraining the Federal Courts.
           HOW?
                 By consenting to and signing congressional leg-
                 islation--
                       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-
           tion.
                 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
                 Judiciary.
                 Federal judges serve during good behavior and
                 therefore enjoy the benefit of JUDICIAL INDEPEN-
                 DENCE.
                       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.
      (5)  How the U.S. Courts Can Check and Restrain Congress
           and the President:
           Through exercise of the power of JUDICIAL REVIEW.
           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--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-
                 eral statute.
      PERSONAL MOTIVES SUPPORTING CHECKS & BALANCES--THE INCEN-
      TIVE TO CHECK & RESTRAIN:            (1)  MULTIPLE CONSTITUENCIES WITH VARYING & COMPETING
                 INTERESTS:
                 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-
                 ESTS.
                       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
                 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 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
                       years.
                       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 RESULT:
                       The personnel in the different elective
                       branches or organs of the national govern-
                       ment are responsive to different sets of
                       interests.
                       Members of the House of Representatives
                       are highly responsive to localized inter-
                       ests.
                       Senators are highly responsive to state-
                       wide 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 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-
                 ment--
                       Reinforces the tendency of the government-
                       al branches to respond to varying and com-
                       peting interests;
                       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
                       opinion.
                             Different swings in the mood of the
                             voters not only affect reelection
                             chances differently.
                             They also affect the political be-
                             havior 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;                       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
                       the moment.
                       They do not feel the need to win voter
                       popularity contests by giving in to--
                             The current majority in the legisla-
                             ture;
                             or
                             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-
                  peting interests;
                  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-
            MENTAL ACTION--
                  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-
      other.
            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-
                  tions.

BALANCED GOVERNMENT:

      Balanced government is the consequence of combining separa-
      tion of powers, checks and balances, and strict legislative
      bicameralism.
      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
                  parts.

FEDERALISM:

      Covered in Unit One, Lecture Topic b:  "Federalism & the
      American Constitutional System."

JUDICIAL REVIEW:

      Covered in the TEXTBOOK, Chapter 1, pages 21-25.
      Covered briefly in this set of NOTES, under "Checks &
      Balances--Examples."

CONSTITUTIONAL GUARANTEE OF INDIVIDUAL RIGHTS & LIBER- TIES:

      Covered in Unit Two.





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THE AMERICAN CONSTITUTIONAL SYSTEM
Constitutional Democracy & the American Constitutional System


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