1.1 INTRODUCTION, CONSTITUTIONAL HISTORY & DEVELOPMENT, & SALIENT FEATURES.
The United States of America is a "federal republic" of fifty states located primarily in central north America, with except of Hawaii and Alaska, which are not contiguous with any of 48 States. Hawaii is a far wester Island, while Alaska only shares its land border with Canada. It is located in the North-West of central America.
It is uncontested that USA is the one of the greatest democracy in the world. It is a Super Power, a champion of human rights, freedom and liberty. It has the most successful federal government system in the world. It is no secret that US owes its success to the System of ‘Trial & Error’ and ‘Correction.’ The system has been introduced by the US constitution, hence what ever US has achieved is because of its Constitution.
The US constitution is one of the oldest written documents of Law, framed in 1787 and effective since 1789. The constitution is most democratic; which protects rights, freedom and liberties of the citizens of US.
The US and its constitution were founded under a tradition of government based on the consent of the governed under the representative democracy model. The perticular form of government of US, called Presidential-Congressional has since been adopted by many other countries, mostly in Central America and South America.
CONSTITUTIONAL HISTORY & DEVELOPMENT
It was the peculiar setup of 13 Colonies, which led to the evolution of the federation. The colonies were largely of English population & of three classes, namely;
1. CROWN COLONIES:
These colonies were ruled by governors, who were appointed by the British government; assisted by the councils in the operation of administration.
2. PROPRIETARY COLONIES:
These colonies were under the control of individuals, who had been given right to exercise powers of government.
3. CHARTER COLONIES:
In these colonies, the power of government was conferred directly upon the free men of the colonies.
We can trace the constitutional history of America from the following events:
1. VIRGINIA HOUSE OF BURGESS (1691):
In 1691, Virginia house of burgess was established. It introduced 1st representative government in America. The first representative legislature passed some laws concerned with both Moral & Economic welfare of the people.
It can be said that Virginia house of Burgess was 1st move to setup political system
2. MAYFLOWER COMPACT (1620):
1 year after the establishment of ‘Virginia House of Burgess,’ a group of Pilgrims concluded ‘Mayflower Compact’ for governing themselves. The compact is said to be 1st written political document in American History. The pilgrims pledged themselves solemnly and mutually in presence of God to combine together into a civil body of politics.
It can be said that the “May Flower” compact was the 1st move towards the establishment of Political Party(s)
3. FUNDAMENTAL ORDERS OF CONNECTION (1639):
The idea of ‘Fundamental Orders’ created a unique form of government in 1639, in which provisions were made for three branches of government with legislature, executive and judicial functions.
4. THE COLONIAL CONFLICT (1765):
By the succession of the English Crown to King George-III, the conflict between the British Government and the American Colonies began. The British Government introduced new trading acts and levied heavy taxation; which resulted in conflict between the British and the American Colonies. In 1765, the British introduced “Stamp Act”, which required a Stamp Tax to be paid on legal documents, circulating newspaper and marriage licenses.
5. STAMP ACT CONGRSS:
The delegation from 9 colonies met in New York and drafted a “Declaration of Rights” protesting the Crown’s right to levy a ‘direct internal tax’ without the consent of the colonial assemblies.
6. SONS OF LIBERTY:
“Sons of liberty” was an organization established to spread the “Declaration of Rights” and to keep the opposition to the Stamp Act alive. Sons of Liberty established committees of correspondence in every colony to spread the doctrine of resistance.
7. FIRST CONTINENTAL CONGRESS (September 5th, 1774):
The Massachusetts Legislature called for a meeting of first ever continental congress. The meeting was held in Philadelphia on September 5th, 1774. Fifty Six (56) delegates representing 12 Colonies attended the Congress. It adopted a “Declaration of Rights” demanding no Taxation without Colonial representation.
The demands put forward by the 1st Continental Congress were rejected by the British.
8. SECOND CONTINETAL CONGRESS (10th May, 1775):
With the rejection of 1st Continental Congress’s demands, the conflict between the Colonies and British Government intensified. The scene was thus laid for the 2nd continental congress. The meeting was again held in Philadelphia on May 10th, 1775. The Congress established a treasury department for Colonies, issued continental currency, established post office and most importantly established an army and raised a navy. George Washington was appointed as the Commander-in-Chief of the army.
9. DECLARATION OF INDEPENDENCE (4th July, 1776):
The methods adopted by the 2nd continental congress were preliminary steps towards the independence. Soon it was followed by “Declaration of Independence” on 4th July, 1776.
It was declared, “All Colonies are free and independent States. They are absolved from all allegiance to the British Crown and as free and independent States, having full power to declare war, conclude peace, contract alliance and to do all other acts and things, which independent states may have right to do.”
10. ESTABLISHMENT OF CONFEDERATION (1775-15th November 1777):
In 1775, prior to the declaration of independence, a committee was constituted, which drafted the “Articles of Confederation.” The articles were approved by the Congress of States on 15th November, 1777, a year after declaration of independence. The articles were as follow
It named the Confederation “United States of America (USA).”
It stated that ‘each state retains its sovereignty, freedom, independence, jurisdiction and right, which was not expressly delegated to the congress.’
It stated that ‘all states entered into friendship with each other for their common defense, security and general welfare on account of religion, sovereignty, trade or any other pretence.
It stated that, congress was established consisting of delegates of States, to make war and peace, to settle all disputes and differences among the states, to coin money and regulate the currency. No person could be a delegate for more than 3 years. The Presiding Officer called President possessed almost no executive authority.
It was clear that the confederation was a loose “Union of States” and the articles of confederation were hardly any thing more than conventions. It had no binding force. Although it was designed to manage the affairs of the State, it possessed no real powers of its own. It was merely an advisory and consultative body and could not compel any state to obey its dictates.
11. TREATY OF VERSAILLES (1783):
The war of independence lasted for eight years. The tides turned in favor of the American confederation when the French allied with them. After the war the British surrendered and accepted the American independence by signing the Treaty of Versailles in 1783.
12. THE ANNAPOLIS CONVENTION (September, 1786):
At the suggestion of James Madison (President of US from 1808 to 1812 and from 1812-1816. Won elections on the ticket of Democratic Republican Party), the Virginia State Legislature called Annapolis Convention in September, 1786. Commissioners from 5 States attended the convention to discuss adjustments to the Articles of Confederation. Special emphasis was laid on improving Commerce. They invited representatives of other States to convene in Philadelphia to discuss improvements to the Federal Governments, but the other State delegations refused to meet unless there was an agreement to revise the Articles of Confederation. After a long debate, the Confederation Congress endorsed the plan to revise the articles of confederation in February 21st, 1787, and the States agreed to send their delegations to Philadelphia Convention.
13. THE PHILADELPHIA CONVENTION (May, 1787):
Philadelphia Convention is one of the most important moves made in the American history and its constitution making. Seventy four (74) delegates from 12 States, except Rohde Island, met in Philadelphia in May, 1787, to propose amendments to the Articles. Various plans were suggested but the issue of representation on population bases posed as a dead lock against them. Smaller States with smaller population felt left out with low representation in the government. It was because of this, proposals like Virginal Plan or Large State Plan, New Jersey Plan or Small State Plan and South Carolina Plan or Pinckney Plan were rejected. At last a proposal, put forward by Connecticut delegation, received greater attention. The famous proposal provided for “Two Governing Houses” at the Centre. It proposed for representation in proportion to population of State in the ‘Lower House,’ while equal representation in the ‘Upper House.’ The Convention also recognized the necessity of giving real authority and power to the federal government, in coining money, regulation of commerce and trade, declaring war and making peace. With these compromises, agreement was reached on framing of a new constitution.
14. THE NEW CONSTITUTION (September 17th, 1787–March 4th, 1789):
On the compromises reached in Philadelphia Convention, the first real constitution of US was drafted. It was completed on September 17th, 1787 in Philadelphia and was ratified by 9 out of 13 States. In addition George Washington was elected the first President and John Adams as his vice. On March 4th, 1789, after fierce fighting over ratification in many States the Constitution came into force. Later when other States joined the Federation, they too agreed to the terms of the Constitution. Today there are 50 States in USA, working under the Constitution of 1789.
SALIENT FEATURES OF THE U.S CONSTITUTION
Although we can trace various interesting features of the US constitution, but the most interesting and important salient features of this constitution, which lay down the basic working system of the US government and State, are as followed:
1. Written Constitution
3. Rigid Constitution
4. Popular Sovereignty
5. Limited Government
6. Separation of Powers
7. Checks and Balances
8. Judicial Review
9. Bicameral Legislature
10. Federal System
11. Presidential System
12. System of Republic
13. Bill of Rights
14. Dual Citizenship
15. Spoil System
1. WRITTEN CONSTITUTION:
The American constitution is a written constitution. It was framed in 1787 and effective since 1789. The framers of the constitution presented it as a briefly written document with simple and clear language. The constitution now consists of 7 articles; three articles are devoted to Legislative, Executive and Judicial Branches and four articles are concerned with the position of States, modes of amendments, supremacy of national power and ratification. The articles are as follow:
ARTICLE-1; THE LEGISLATURE:
• Establishes a bi-cameral legislative body of government called “The Congress, which includes an Upper House called “The Senate” and a Lower House called “The House of Representatives.”
• Establishes the manner of election and qualification of members of each house.
• Out lines legislative procedure and indicates the powers of the legislative branch.
• Establishes limits on Federal and State legislative powers.
• It precludes Congress from depriving a State of equal representation in the Senate with its consent.
• It grants Congress the power to regulate, both international and inter-State, Trade and Commerce.
Article one is the longest of the 7 articles. Unlike other articles of the constitution, the Article-1 cannot be amended. The amendments made prior to 1808 can no longer affect the 1st and 4th clause of section-9 of this article. The 1st clause prohibited the Congress from stopping the trading of Slaves, while the 45h clause imposed direct tax to be apportioned among the States according to their population, till 1808.
ARTICLE-2; THE EXECUTIVE:
• Calls President to be the Chief Executive of the Country
• Describes procedure for the selection/election of the President, qualifications for the Presidential office, affirming the Presidents oath. Describes powers and duties of the Presidential Office.
• Calls for the office of Vice President of US, 2nd to the President. He is to replace the President, if the President is incapacitated or resigns. He has to serve as a presiding officer for any debate in the Senate, with a vote in case of a tie.
• Allows for impeachment of Constitutional officers, which include the President, the Vice President and Judges.
• Describes the court System, including the working of the Supreme Court.
It states that there shall be a Supreme Court. Congress at its discretion can create lower courts. The judges and orders of these lower courts are reviewable by the Supreme Court.
• Calls on trial by Jury in all criminal cases.
• Defines crime and treason and empowers Congress for punishment for it. But imposes limits on the punishment.
ARTICLE-4, POSITION OF STATES:
• Describes relationship between the Federating States and the Federal government.
• Establishes extradition between States and lays down legal basis for freedom of movement and travel amongst the States.
ARTICLE-5, MODES OF AMENDMENTS:
• It describes process necessary to amend the constitution. It provides for two methods for amendments; one is called “Proposal for amendment” in which either the Congress or the Convention of States propose amendments to constitution, the other is called “ratification of proposal” which requires ratification by States Legislature or by the conventions of State (Explained further in Feature No.4-“The Rigid Constitution.”). Congress is to choose which method it wants for the ratification for amendment
ARTICLE-6, SUPREMACY OF NATIONAL POWER:
• Establishes the constitution to be the supreme law of the land.
• Validates national debt, created under the ‘articles of confederation’.
• Requires that all legislators, federal officers and judges take oath to support constitution.
• Sets for the requirements for ratification of the constitution.
All 50 States have ratified the Constitution, which means they accept it as the Supreme Law of the Land. Initially there were 13 States out which 9 ratified the constitution. Many historians call the 9 States, which ratified the constitution, as the first Federating States of US. While the remaining 5 are called as acting independent countries, but eventually they too ratified the constitution.
“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”
Like other constitutions, the US constitution too consists of a Written Preamble. The US constitution consists of a single sentence that introduces the document and its purpose. The preamble it self neither grants any powers nor inhibits any actions. It only explains the rational behind the constitution. The preamble, especially the first three words “we the people” is one of the most important, often quoted and referred section of the US constitution.
The major governmental goals stated in the Preamble include:
• Provide for better Cooperation among the States
• Ensuring Justice and Peace
• Providing for Defense against invasion
• Promote the general well being of the population
• Securing liberties now and in future.
3. RIGID CONSTITUTION:
The American constitution is one of the most rigid constitutions of the world. It means it can not be amended very easily and has to go through difficult and special procedure of amendment. This procedure consists of two parts, namely;
• The Proposal of Amendment:
The two-third (about 67%) majority of both Houses shall propose amendments to the constitution or on the application of legislatures of two-third (about 67%) of States shall call a convention for proposing amendment.
• The Ratification of the Proposal:
The amendment shall be ratified by the legislatures of three-fourths (75%) of all States or by the conventions of three-fourth (75%) of States.
It is because of this rigidity of the US constitution that it has been amended for only 27 times in over 200 years. But in spite its rigidity the constitution has adapted it self to tremendous changes in America, such as there is no mention of political party system in the original constitutional document, yet there are political parties acting in US.
4. POPULAR SOVEREIGNTY:
The principle of popular sovereignty is clearly spelled out in the preamble of the constitution “We the people….do ordain and establish this constitution for United States of America.”
It means that In US the people reign, for they determine the nature of the political institutions and structure of the States. The people have delegated their power to the government and the government owes its authority to the will of people.
The doctrine of popular sovereignty is a constitutional check to any tendency towards arbitrary and despotic government and a guarantee of the respect for the rights of the citizens.
5. LIMITED GOVERNMENT:
According to the framers of the constitution, absolute power must necessarily be arbitrary and despotic, hence, all powers must be limited otherwise there will be tyranny, oppression, ending in revolt or violence. It was because of this they introduced the concept of “Limited Government” in the constitution.
The concept or doctrine of “Limited Government”, in the constitution, defines the powers, which the government is to exercise and also imposes restrictions, within which the government has to operate. By this, the constitution has limited the powers of government to avoid miss usage of it. In addition the concept also laid down the platform for another concept or doctrine called “Separation of Powers.”
6. SEPARATION OF POWERS:
This doctrine divides powers among three branches of government and restricts one branches of government from interfering into one and others jurisdictions. The Power has been divided amongst the Congress (House of Representatives and Senate), the President and his cabinet, and the Judiciary.
It is the legislature and exercises legislative powers. It can not allow any agency or person to make laws in its place. It passes laws, which out line general policies and set certain standards.
• The President:
President posses the executive powers; he can execute laws, enforce law or can administer laws. He is assisted by his Cabinet and several other departments, agencies offices, bureaus and commissions in exercising his powers. However he is personally responsible for all actions of executive branch.
• The Judiciary:
The Supreme Court exercises the judicial powers. It interprets the laws and decides cases and controversies, in conformity with law and by the methods prescribed by the law. The Supreme Court is assisted by several small courts in executing the judicial powers. The courts do no initiate action; they exercise their power only when disputes are brought before them, either by government, a private individual or some organization.
7. CHECKS & BALANCES:
The concept of “Separation of Powers” further laid down the concept or doctrine of “Checks and Balances.” It divides powers of one branch in way that it puts a check upon the power of the other.
Congress has power to make laws but President can veto it. While Congress can pass legislation over Presidents veto by a two-third vote in each house. This way President has check over the Congress and the Congress over the President. This also balances out their powers.
The Congress can refuse to appropriate funds requested by the President. The President has powers of appointment. He can appoint judges to Supreme Court. The Supreme Court has power to approve, reject and review laws passed by Congress. The President can appoint Judges which favor him over the Congress and get his way around the congress. On the other hand, the Senate has powers to disapprove the appointments and treaties made by the President. Hence it can halt President from appointing judges on his bias.
In addition to the powers of judiciary, the Supreme Court can also approve, reject and review any action taken by the President.
The main reason for the system of “Checks & Balances” is to prevent unjust combination of the majority. The system makes compromises necessary, which is a sign of healthy democracy. The system also restricts the chaotic or tyrannical rule and helps prevent the rise of dictators.
8. JUDICIAL REVIEW:
The constitution has vested powers for “Judicial Review” in the Supreme Court. The Supreme Court can declare any legislation or executive order null or void, if found to be inconsistent with the provisions of the constitution.
The Supreme Court along with several smaller courts (together called Judiciary) performs as the guardian and custodian of the constitution and of “Bill of Rights” amended in the constitution.
Under the cover of judicial review, the Supreme Court has so interpreted the constitution that it has adapted it self to the changing needs of the society and it has enlarged the powers of the Congress. It is because of this the US government is called government of the judges.
9. BICAMERAL LEGISLAUTE:
The constitution of US provides for a bicameral legislature. It means there will be two houses at the Centre which have the legislative powers. According to the Article-1 “All legislative powers are vested in Congress.” Congress is the bicameral legislature body of the US government, consisting of two houses; the Lower House called “House of Representatives” and the Upper House called “Senate.”
House of Representatives:
It is the lower house, consisting of 435 members elected by the people on population basis through the method of adult franchise. The members of the House of Representatives are elected for the term of two years.
It is the upper house, consisting of 100 members; elected by the State legislature on parity basis for six years. Each State sends two Senators in the upper house and each senator has one vote, meaning each state has 2 votes in the upper house.
The two houses don’t have equal powers. The upper house or the senate is stronger than the lower house or the House of Representatives. The US Senate is the most powerful Senate of the world.
10. FEDERAL SYSTEM:
The US constitution provides for a federal government, which means that the governmental authority is divided between Central or Federal Government and fifty federating States. The division of power has been established the two bodies by the constitution. According to the Section-8 of Article-1, the Federal Government has jurisdiction over 18 matters of national interest and importance, while the residuary powers are entrusted to the Federating States.
The States are autonomous bodies in their own jurisdiction and the Federal Government can not meddle in their affairs. I case of conflict, the Supreme Court settles all disputes between the two bodies.
11. PRESIDENTIAL SYSTEM:
The constitution provides for a Presidential system. The Article-II of the Constitution says that all Executive powers are vested in the American President. He exercises all the powers, which laws and constitution confer upon him. The President is elected in directly by the people for the term of four years. He can not be removed by the vote of no-confidence by the Congress. Thus he is not responsible to the Congress. He does not attend its session, nor initiates legislation directly Congress. He does not even answer the Congressional questions. On the other hand the President can not dissolve the Congress, nor can he interfere in legislations made by Congress, but he does have power to veto the law passed by the Congress.
The President is assisted by his hand picked cabinet, which helps him run his executive powers. The Cabinet members are neither members of Congress nor do they answer to the Congress. They are not even allowed to sit in Congressional meetings.
In addition the President has power of appointments. He appoints heads of various departments and he also appoints the judges of Supreme Court. The President also has powers to make treaties.
The US constitution calls for the State to be a Republic, with a President as elected head of the State. The constitution derives its authority from the people. Moreover, the constitution calls upon all the federating States to follow the system of republicanism. The constitution is Supreme Law of the Land. Neither Centre nor State can over side it.
13. BILL OF RIGHTS:
The original constitution did not guarantee the fundamental rights of people. But soon after it was affective, the legislature made amendments to incorporate the fundamental rights for people in the constitution. In fact the first ten amendments made were to do so. These 1st ten amendments are known as the “Bill of Rights.” The Bill of Rights grants fundamental rights of person, property and liberty to people. It also guarantees freedom of religion, speech, press and assembly.
It is the job of the judiciary to enforce the Bill of Rights. The Supreme Court is the guardian of the Constitution and thus of the Bill of Rights.
The Bill of Rights can not be suspended or modified, except by a constitutional amendment.
14. DUAL CITIZENSHIP:
The American constitution has made provisions for Dual citizenship. This means that an American is a citizen of United States as well as of the Federating State, where he or she is domiciled.
(Great Britain and Pakistan have Single Citizenship)
15. SPOIL SYSTTEM:
The Spoil System concept implies that, a system under which public office is considered and used as spoils to be enjoyed by the political party victorious at polls. Under this system a civil servant appointed on political consideration by one President can not retain his office when an opposition President secures victory at the polls. The new President is to make fresh new appointments by dismissing the previous ones.