I. THE UNITED STATES CONSTITUTION
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A. The Functions of the Constitution
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The UnitedStates Constitution is an amazing document.A bold experiment in democracy more than 200 years ago, it has provedboth stable and flexible enough to survive and remain effective in a worldtotally different from the one in which it was written.
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TheConstitution has three main functions.First it creates a national government consisting of a legislative, anexecutive, and a judicial branch, with a system of checks and balances amongthe three branches. Second, it dividespower between the federal government and the states. And third, it protects various individual liberties of Americancitizens.
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TheConstitution’s framework owes much to the history that led to its drafting. The limitations placed on the federalgovernment and each of its branches were a reaction to the tyranny of Britishrule, and especially the tyranny of the single monarch. Yet the breadth of the national government’spowers were a correction to the weak government of the Articles ofConfederation (the short lived system before the present constitution), thathad proved incapable of forging the thirteen original states into one nation.
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1. Separation of Powers
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TheGovernment of the United States, the federal government, is divided into threebranches: the executive power, investedin the President, the legislative power, given to Congress (the House ofRepresentatives and the Senate), and the judicial power, vested in one SupremeCourt and other federal courts created by Congress. The Constitution provides a system of checks and balancesdesigned to avoid the tyranny of any one branch.
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Mostimportant actions require the participation of more than once branch ofgovernment. For example, Congresspasses laws, but the President can veto them.The executive branch prosecutes persons for criminal violations, butthey must be tried by the courts. ThePresident appoints federal judges, but their appointment must be confirmed bythe Senate.
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2. Division of Federal and State Power
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Anotherimportant function of the Constitution is to divide power between the nationalgovernment and the state governments.This division of authority is referred to as “federalism.” The federal government is very strong, withmuch power over the states, but at the same time, it is limited to the powersenumerated in the Constitution. Powersnot delegated to the federal government, nor prohibited to the states arereserved to the states or to the people.Although the powers of the federal government are limited to thoseenumerated in the Constitution, those enumerated powers have been interpretedvery broadly. And under the supremacyclause of the Constitution, federal law is supreme over state law. State or local laws that conflict with theConstitution or federal statutory law are preempted.
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TheConstitution also limits the powers of the states in relation to oneanother. Because the United StatesCongress has been given the power to regulate interstate commerce, the statesare limited in their ability to regulate or tax such commerce betweenthem. Under the Constitution’sprivileges and immunities Clause, states are prohibited from discriminating inmany ways against citizens of other states.
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3. Protection of Personal Liberty
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Thethird main purpose of the Constitutionis to protect the personal liberty of citizens from intrusions by thegovernment. A few of these protectionsare found in the main body of the Constitution itself. For example, Article I, sections 9 and 10prohibits both ex post facto laws,which punish conduct that was not illegal at the time it was performed, andbills of attainder which single out individuals or groups for punishment..
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MostConstitutional protections for individual rights are contained in the Bill ofRights, which constitute the first ten amendments to the Constitution. These amendments were adopted shortly afterthe adoption of the Constitution itself, in response to state concerns aboutthe Constitution’s lack of protections for individual rights. The protections of these amendments wereoriginally interpreted to apply only against the federal government, but theSupreme Court has since ruled that most of them were made applicable to thestates by passage of the Fourteenth Amendment due process clause after theCivil War. The Fourteenth Amendmentalso contains the equal protection clause, which protects citizens fromdiscrimination by the states on the basis of race, sex and othercharacteristics.
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4. Permanent Protections of a Constitution
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In ademocracy without a written constitution, such as the United Kingdom, thelegislature may pass laws granting or taking away any rights, or even changingthe structure of the government itself.A Constitution is more difficult to alter, and the framers of theAmerican Constitution made it especially difficult to amend. An amendment must first pass both houses ofCongress by a two-thirds majority and must then be ratified by the legislaturesof three-fourths of the states. In a sense, this makes the Constitution ananti-majoritarian document.
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By binding the hands of futuregenerations, it prevents a majority from granting tyrannical powers to thegovernment in a time of crises. It alsoprevents a majority from easily taking away the rights of minorities. And it prevents those in office from holdingon to power by increasing their terms in office.
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A document that is sodifficult to amend can become obsolete over time, if it is too detailed andinflexible. For the most part, however,the Constitution is written in terms general or abstract enough to retain acore set of values yet be amenable to changing interpretations as called for bythe times.
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B. The Structure of the Federal Government
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1. Legislative Branch
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Article Iof the Constitution vests the legislative power of the Untied States in abicameral Congress. The Congress iscomposed of the House of Representatives, the members of which are elected fortwo-year terms and represent districts ofequal numbers of people, and theSenate which is composed of two senators from each state who serve forsix-years terms. Senators wereoriginally chosen by the state legislature, but are now directly elected. The composition of the House and Senaterepresented a compromise between the larger states, which wanted a legislaturebased on population and the smaller states, which wanted equal representationfor each state. A majority of bothhouses must pass all bills, and if the President vetoes a bill, a two-thirdsmajority of both houses is required for the bill to become law.
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The powersof Congress are listed in Article I, Section 8, and Congress may not exerciseany not power listed there. But thosepowers encompass many areas, including taxing and spending, coining andborrowing money, controlling interstate and foreign commerce, maintaining anarmy and navy, and declaring war.Several of these powers have been interpreted very broadly, especiallythe power to regulate interstate commerce and the power to “make all laws whichshall be necessary and proper” for carrying out all their other powers. Congress also has broad authority todelegate many of its powers to the President and to administrative agencies.
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2. Executive Branch
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The powerof the executive branch is vested in the President. The President is elected for a four-year term, not by directelection but by the electoral college.Under this system, each state has a number of members of the electoralcollege equal to the number of members of the House and Senate. The candidate who receives the largestnumber of votes in a state gets all the electoral votes of that state. The candidate with a majority of theelectoral college becomes the President.If no candidate receives a majority of the electoral votes, the winneris chosen by the House of Representatives.To be eligible to be President one must be thirty-five years old and anatural born citizen of the United States.Under the Twenty-second Amendment, no person may serve as President morethan twice.
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The powersexplicitly granted to the President in Article II are quite important, butlimited in number. The President is theCommander in Chief of the Army. He alsohas the power to grant pardons and reprieves and has the power, with the adviceand consent of the Senate, to make treaties, and to appoint federal judges,ambassadors, and other public Officers of the United States. The extent of the President’s inherent powerover matters not explicitly provided for in the Constitution is subject to debate. The power to conduct foreign affairs hasbeen held to be inherent in the office, but the Supreme Court has been lesswilling to extend inherent powers in the domestic area.
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The President is subject to controlby Congress in several ways. Congresshas the last word on many disputes with its ability to pass laws, even over thePresident’s veto. The President’s mostimportant appointments are subject to confirmation by the Senate. Finally, the President may be removed fromoffice if impeached by the House and convicted by two-thirds of the Senate of“high crimes and misdemeanors.”
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3. The Judicial Branch
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TheConstitution grants the judicial power of the United States to one SupremeCourt and other inferior courts that may be created by Congress. Federal judges are appointed for life by thePresident and must be confirmed by the Senate.
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All federalcourts are, under the Constitution, courts of limited jurisdiction. They mayhear only “cases or controversies,” which means that they cannot perform non-judicialfunctions or give advice to the President or Congress about theconstitutionality of proposedaction. They cannot hear all kinds ofcases, but only those listed as within the judicial power of the United States,as laid out in Article III. The kindsof cases listed in Article III were chosen to protect various interests of theUnited States. The federal courts arealso subject to the will of Congress in so far as it can distribute and evenlimit the jurisdiction of the various federal courts.
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The federalcourts have one power not enjoyed by courts in some other countries. They may declare a statute enacted byCongress to be in violation of the Constitution and therefore invalid. This power of judicial review wasestablished by the Supreme Court in 1803, in the landmark case of Marbury v. Madison. If the Supreme Court declares aCongressional Statute unconstitutional, normally the only way to change thisresult is to use the difficult process of amending the Constitution.
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Althoughthe Supreme Court is in one sense the final arbiter of the meaning of theConstitution, this power is not unlimited.The Court cannot enforce its judgments without the cooperation of theexecutive branch, and is subject, at least in some measure, to control over itsjurisdiction by Congress. The Courtit*elf has relinquished the power to interpret certain areas of theConstitution, saying that is committed by the Constitution to other branches ofgovernment. For example, the Court hasdetermined that the power to judge the qualifications of members of Congresshas been entrusted by the Constitution solely to Congress itself, and hasrefused to act in such matters.
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