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Constitutional Law: SELECTED CONSTITUTIONS OF THE WORLD
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Constitutional Law: SELECTED CONSTITUTIONS OF THE WORLD
STUDY OF SELECTIVE CONSTITUTIONS OF THE WORLD
COMPILED BY: AHMED ALI SHAH
FOR CSS PREPARATION
1. THE CONSTITUTION OF UNITED STATES OF AMERICA
2. THE CONSTITUTION OF GREAT BRITAIN
3. THE CONSTITUTION OF FRANCE
4. THE CONSTITUTION OF INDIA
5. THE CONSTITUTION OF RUSSIAN FEDERATION & FORMER U.S.S.R
6. THE CONSTITUTION OF ISLAMIC REPUBLIC OF PAKISTAN
7. COMPARISON OF FEATURES OF SELECTED CONSTITUTIONS OF THE WORLD.
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Originally Posted by AHMED ALI SHAH (Author/Compiler)
Study and Research have been conducted from different books, various other sources and authors/compiler’s self collected general knowledge. Therefore, you may find similarities in these articles and some other you may come across. However these articles are strictly based around CSS syllabus
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chapter # 1
1.1. Introduction, Constitutional History & Development, & Salient Features.
The Constitution Of United States Of America
1.2. Federal Government And Its Elements
1.3. The President, The Presidential Cabinet & The Vice-President
1.4. The Congress
1.5. Judicial System
1.6. Political Parties
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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.
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1.2. FEDERAL GOVERNMENT
2. ELEMENTS OF FEDERAL GOVERNMENT
3. FEDERAL-STATE RELATIONSHIP
4. FEDERAL OBLIGATION TO THE STATES
5. STATE OBLIGATION TO THE FEDERAL GOVERNMENT
The constitution of 1789 has introduced a federal system of government in America. It is the 1st federal constitution of the world. The federal system of American constitution divides the powers between the federal government and the federating States governments.
According to ARTICL-I, section-8, the federal government has been given jurisdiction over 18 matters of national importance i.e. Defense, Foreign Affairs, Commerce, Currency etc. The residuary powers are left to the federating State’s governments. These federating States and their government are independent in their respective jurisdictions. The centre or the Federal Government can not meddle with the affairs of the Federating States and their governments. Any dispute between the two bodies will be settled via the Supreme Court. All States are legally equal and the Federal Government has the constitutional responsibility to protect the States against any external aggression as well as internal disturbance.
Despite the tremendous growth of powers of Federal Government, the States continue to exert themselves and have displayed great vitality.
2. ELEMENTS OF FEDERAL GOVERNMENT
• Distribution of Powers
• Growth of federal authority
1. DISTRIBUTION OF POWERS:
The United States of America was created by surrendering some powers to the member states. There for the federal government has been delegated and specified its powers, while residuary powers lie with the States.
The ARTICLE-1 of the US constitution deals with the distribution of powers amongst federation and federating units. The constitution contains three lists of subjects, namely:
1. What congress of federation can do
2. What congress can not do
3. What states legislatives can not do
The ARTICLE-1, Section-8 of the constitution enumerates 18 powers for the Federal Government. They include:
1. To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States.
2. To borrow Money on the credit of the United States.
3. To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.
4. To establish a uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States.
5. To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures.
6. To provide for the Punishment of counterfeiting the Securities and current Coin of the United States.
7. To establish Post Offices and post Roads.
8. To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
9. To constitute Tribunals inferior to the Supreme Court.
10. To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations.
11. To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.
12. To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years.
13. To provide and maintain a Navy.
14. To make Rules for the Government and Regulation of the land and naval Forces.
15. To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.
16. To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.
17. To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings.
18. To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
The ARTICLE-1, Section-9 of the constitution forbids federal government from passing ex-post facto laws; granting titles or nobility, passing laws on religious believes of people and abridging freedom of speech and press. The same article forbids the federating States from making alliances or treaty with foreign States or Countries, from issuing coinage and maintaining armies.
Excluding the 18 powers vested in the federal government, the constitution vests all the residuary powers in the federating States. These residuary powers can not be exercised by the Federal Government.
2. GROWTH OF FEDERAL AUTHORITY
At the time when US came to existence, the federating States wished to retain as much power and local independence as much possible, thus they gave only limited number of power to the Federal Government at centre. They only agreed to a union not a unity. But under the impact of time and circumstances, the powers of the federal government have increased beyond imagination.
The following factors have been responsible for the growth of federal authority in US.
a. Doctrine of Implied Powers:
The doctrine was introduced by the Supreme Court under the Chief Justice Marshall. According to the doctrine, the constitution not only enumerates certain powers for the centre, but also gives those powers which are implied in the enumerated ones.
The constitution empowers the Federal Government to regulate commerce and trade with foreign nations and among the several States. From the clause of the constitution, the congress has derived power to control all means of transport and communication.
From the clause which gives power to Congress for promoting general welfare, the federal government has derived authority to pass social legislations like old age insurance schemes and other laws of this nature.
Again through powers of Congress to collect taxes and duties, the federal government got the authority to establish and exclusively control the Federal Bank of Reserves (Central back of USA).
b. Amendments in the constitution:
Various amendments in the constitution have vested powers in the federal government. The 15th amendment gave powers of judicial review to the Supreme Court over the State Legislation. Since the Judges of the Supreme Court are appointed by the President and approved by the Senate (Upper House of the Congress, which is the Federal government), the Congress has indirect say in the matters of the federating State legislations. The 16th amendment authorized the Congress to levy and collect taxes on income of all kinds whereas the original constitution prohibited the Federal Government to impose direct tax.
c. Physical, Economical and Social Changes:
When USA came to existence, there were only 13 States. But now it is a union of 50 States with huge extent of territory and enormous population. This growth in size and population together with complexity of social organization has shifted the power greatly in favor of the Federal Government. The matters, once considered to be of local importance, assumed national character.
The vast development of communication, trade, technology, rise of big business and inter State cooperation created problems, which the States could not tackle and could only be handle by the Federal Government. People demanded services which the State Government was either unable or unwilling to provide; hence the Federal Government took the matters in its hand. Step by Step the Federal Government took over what the States would not or could not do. Thus, there has been steady flow of authority to the Federal Government at the Washington Seat.
d. Role Of Powerful President:
The powerful Presidents issued rules and regulations which widened the exercise of authority of Federal Government. The Powerful Presidents were virtual dictators. President George Washington, Abraham Lincoln, Woodrow Wilson, F.D Roosevelt etc are few of the examples of these powerful Presidents. They have taken action even without any constitutional justification. President Lincoln declared war against Southern-States on the issue of slavery, while Roosevelt’s “New Deal Policy” has widened the control of Federal Government over the subjects originally within the State Jurisdiction.
e. The Impact of Civil War (1861-1865):
The Civil war in 1861 to 1865, effectively decided the Centre-State relationship. The war took place because of Centre-State conflicts as well as inter-State conflicts. It gave the negative verdict against separation, State autonomy and State Loyalty. Hence, after the cease fire, some of the powers of State were either curtailed or transferred to the Federal Government to be collectively be exercised over all States.
f. Confidence in Federal Government:
Due to some past events, the people of US have gained more confidence in Federal Government over various matters, which the State Governments were not able to handle. For example: The Economic crisis of 1931. The resources of States proved absolutely inadequate to provide relief to 12 million unemployed people in the country. Hence it was the Federal Government that started tackles the problem. Hence the States and people have increased the powers of Federal Government in order to avoid in such scenarios in the future. It is in the hand of the Federal Government to provide general welfare of the people. For this reason the Federal Government also introduced “Federal Grants Aid” for the States.
g. Federal Grants Aid:
Federal Grants Aid is the payments made by the Federal Government to State and local body governments for the support of welfare activities administered by States and their local bodies. The aid is provided for housing, agriculture, education and various other similar matters. The centre gives the grants for specified purpose and subject to conditions stipulated by Congress.
h. Defense of the Country:
It is the constitutional obligation for the Federal government to protect the country and provide common defence to States from external aggressions, and also declare and wage war if necessary. During the war the federal government is responsible for the entire life of the nation and the country. It has to control all channels of production, transportation, distribution and every aspect of economic and social life in the country. At the end of the war the federal government must tackle problems of demobilization and post-war reconstruction. All this leads to increase in authority of federal government. It must also be noted that in every decade US is involved in some long term conflicts, some which are warring conflicts.
i. Impact of World Situation:
Events like WW-II and Cold War are responsible for enormous increase in the powers of the federal government. Although these events and conflicts have come to end, the powers that Federal government took in still remain in its hands. In fact the powers provided by these events are still being used in self interest of US, and specially of Federal Government.
This increase in the growth of federal authority has led to a conclusion that US is no longer a Federal Polity. But it would also be wrong and an exaggeration to say that Federalism is dead in America. This can not happen, as they are in many ways fathers of modern federalism. However in today’s world federation can not exist with a strong centre. This strengthening of Centre of Federal government is what scholars call a “Co-operative Federalism.”
3. FEDERAL STATE RELATIONSHIP:
There are three major patterns of Federal-State relationship in US constitution.
a. DUAL FEDERALISM:
In this the constitution has carved out separate fields of authority for Federal and State governments. It divides the authority amongst the two bodies in such a way that no government could exercise any regulatory influence.
This principle was upheld by the Supreme Court in its decision of Dred Scot Case (1857). However, the civil war (1861-65) had put an end to the divisive effects of this principle.
b. COOPERATIVE FEDERALISM:
It upholds the supremacy of federal government and extension of its powers, with cooperation and authority of the Federating states governments. The constitution requires federal state cooperation in some areas such as the administration of elections, where the both governments have concurrent powers. The most important device of cooperative federalism is grants in aid for various purposes e.g. national highway development, education, urban development. In this the state government plays very important role along with the federal government.
There are some matters which State government alone can not handle; hence it needs the support of the Federal Government. These matters include water pollution control, unemployment insurance etc. States also need financial and administrative assistance from Federal government over various other matters.
We can say that close federal-state cooperation relationship is required to meet the modern responsibilities.
c. CREATIVE FEDERALISM:
This includes revitalizing the State and city governmental bodies to improve the line of coordination between the Central, State and local branches of government and administration. The major feature of this concept is restructuring of federal bureaucracy to make it more efficient and responsive in its relations with States; local and non-governmental organization (NGOs). The congress has passed a number of acts regarding the concept of creative federalism, for example; instance Economic Opportunity Act in 1964, the Elementary and Secondary Education Act in 1965 and Manpower Development Act in 1966. By these legislations, the congress has tried to solve the problems of poverty and social tension in the cities and States. It has tried to curb crimes and lawlessness, and to clear slum areas in the cities.
4. FEDERAL OBLIGATIONS TO THE STATES
The constitution has provided federal government with some responsibilities and obligations towards the federating States. These obligations are as followed:
1. Respect the territorial integrity of existing states in admitting new states
2. Guarantee a republican for of government to the States
3. Protect States against domestic violence and foreign aggression
4. Leave intact the constitutional grant of two senators for each State
5. Forbid suit against States by individuals in the federal court.
These can be enumerated as followed:
a. TERRITORIAL INTEGRITY OF THE STATES:
The constitution of the US, under the Article-IV, Section-3, Clause-I, states that “New States may be admitted by the Congress into the union; but no new State shall be formed or erected within the jurisdiction of any other state; nor any State be formed by the junction of two or more states, or parts of states, without the consent of the legislature of the concerned States as well as of the Congress.”
Hence Congress has powers to admit new States, but not at a cost of the territorial loss of any existing State. Federal government is bound to respect the territorial integrity of each state and it can not take territory of any state with its consent.
b. REPUBLICAN FORM OF GOVERNMENT:
The Article-IV, Section-4, calls upon the federal government to guarantee a Republican form of government in every State of the country. The Congress may refuse to seat the senators and representatives of a State or States on the ground that they come from a State without Republican form of a government.
c. DEFENCE AGAINST INVASION AND VOILANCE:
The Article-IV, Section-4, also calls on the federal government to protect each state from external invasion and domestic violence. The obligation of Federal Government, to protect States from external aggression is quite logical as the States are not allowed to have armies and navies (or Air force). During the domestic violence, the President can send troops only after a request from the governor or the legislature of the concerned State or he can send troops when Federal Law and Federal property is violated.
d. EQUAL REPRESENTATION IN THE SENATE:
It is rather a restriction than a task. The constitution bars federal government from denying equal representation if States in Senate, with out the consent of the concerned State. This is a fundamental law and can not be amended.
e. STATE IMMUNITY SUIT:
The original constitution allowed federal judiciary to assume jurisdiction over the suits between a State and citizens of another State. But after a conflict over this feature in 1793 case of Chisholm v/s Georgia the feature was amended in the constitution through the 11th amendment. The amendment outlawed such suits and debarred states to be sued by an individual in federal court. However an individual may seek remedy through legislative action or a “claim” bill.
5. STATE OBLIGATIONS TO THE FEDERATION
Following are the major obligations of States towards the federation:
a. ELECTIONS OF FEDERAL OFFICE:
• All the States are obliged to participate in electing federal officials like the President, the senators and the representatives.
• The Presidential electors or the Electoral College is elected by the State.
• The States are obliged to elect representatives to the “House of Representatives” on population basis.
• The States (through State legislature) are also obliged to elect two senators to the “Senate.”
• It is the responsibility of the State to follow common election date, put forward by the Congress, for the election of the federal officers.
• The State can choose whatever method it wants for the election procedure of representatives, senate and other federal officers.
b. PARTICIPATING IN AMENDING PROCESS:
It is the State obligation to participate in the amending process of the constitution. The constitution has put forward two methods of amendments and in both methods participation of States is necessary. The amendment has to be ratified by the legislature of the states or by the convention called by the States. No amendment can take affect unless the States approve of it.
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THE PRESIDENT, PRESIDENT’S CABINET AND THE VICE PRESIDENT
1. THE PRESIDENT OF U.S.A
2. PRESIDENT’S CABINET
3. THE VICE-PRESIDENT PRESIDENY OF U.S.A
1. THE PRESIDENT OF U.S.A
The President of USA has been vested with executive powers by the constitution and hence is the chief executive of the entire country. His powers are so enormous, wide and overwhelming that he is referred to as the foremost ruler of the world.
The President of USA is supreme in executive sphere and is master of his cabinet, as he chooses them as personal team advisors. He is not bound to the cabinet’s decisions, but rather cabinet has to follow his instructions, otherwise they are bound to quit the cabinet.
The US president is elected by the people and thus enjoys greater measures of popular support. Thus the American constitution has made the President the real head of the State.
The constitution provides that the Presidential candidate must be;
1. A natural born Citizen of United States
2. Must not be less than 35 years of age
3. Must have resided not less than 14 years in the country
The constitution does not bar a woman, a Negro or a person of any other race or religion to be elected as the President. However no woman or Negro has ever been elected as President. On the religious basis no non-Christian has ever won the Presidency. USA is predominantly a protestant country and no Catholic person has ever been elected as the President, except for J.F. Kennedy.
The constitution provides for indirect elections of the American president. He is elected by an electoral college consisting of as many presidential electors as is the number of members in the “house of the congress.” This Electoral College is constituted in each state, and the method by which these electoral colleges are to be elected is to concern of the States. Initially they were elected by the State legislature but now states let the people elect the electoral colleges.
The system of elections is based on calendar. The Electoral College members are elected on Tuesday after the 1st Monday in November of every leap year. On 1st Monday of December they meet in their respective States to vote for President. The result is sealed and is sent to the Chairman of Senate by each State. On 6th January of New Year the Congress meets in its joint session to count the votes. The person securing majority of the votes would than declared the winner of the Presidential election. On 20th of January the winner is sworn in as President. In case no candidate secure majority of the total votes, the House of Representatives will than elect one person from 1st three candidates who has secured highest number of votes than the two. In such case each State also has to exercise a ‘One vote’ to elect a President. If no president is elected than after 4th March the Vice-President becomes the President.
The President is elected for the term of four (4) years. According to the 22nd amendment, ratified in 1951, he can not be elected for more than two terms.
Initially there was no restriction of number of terms of elections. In fact President Roosevelt was elected for the 3rd and 4th term in a row.
The Article-II, section-1, Clause-5 of the Constitution provides that if the President’s office falls vacant due to his death, resignation, impeachment or inability to discharge the duties, the vice-President succeeds to his office for the remaining period of his term. If both President and Vice-President are unable to perform their duties they would be succeeded by Speaker of the “House of Representatives”, Presidents Pro-Tempore of Senate, Secretary of State and so on.
The United States President can not be removed directly by the Congress as he is not accountable to it. The only method of removing the US President is by “Impeachment.” The method of Presidential impeachment requires the House of Representative to adopt a resolution called “article of impeachment” charging the President with certain high crimes and directs the prosecution before the Senate; which acts as judicial tribunal for impeachment and is presided over by Chief Justice. The impeachment is than put to vote in senate and two-third (about 67%) majority is required to convict the President.
• In 1868 President Johnson was a subject to impeachment but he could not be convicted due to lack of required majority
• In 1974, President Nixon became subject to impeachment because of the Watergate Scandal. But he resigned & escaped the process.
• Again in 1998-9, President Clinton was subjected to process of impeachment, but like President Johnson he survived the process due to lack of required majority.
• The President is immune from arrest for any offence during his tenure. He is not subject to any court. He can only be punished for any offence after his removal from the President’s office.
• The President receives a salary of 400,000 a year.
• Occupies an official residence in the White House.
• During the travel to foreign countries, Air force-1 (Boeing 747) is at his disposal. Air Force-1 also performs as a flying Presidential Office. President is also provided with armored Cadillac limousine when traveling in Washington and its surroundings. When Traveling inside USA he is provided with a Helicopter.
• The President is also given a high security during and even after his Presidency.
The President enjoys various other privileges during his Presidency. He also receives some Privileges after the end of his presidency. These Privileges include;
• Free mailing
• Free office space
• The right to hold diplomatic passport
• Budgets for office help and staff assistance
• Receives pension (since 1958)
As said before the constitution declares the President as the executive of the country and vest all powers in him. During the last century the powers of US President have increased enormously. Today he has become so powerful that he has no counterpart in power in the democratic world.
The President of US enjoys following powers:
1. Executive Powers
2. Diplomatic Powers
3. Legislative Powers
4. Judicial Powers
5. Financial Powers
These powers can be explained as followed:
1. EXECUTIVE POWERS:
The American president has the following executive powers:
(a.) CHIEF ADMINISTRATOR:
The President is the head of the national administration and supervisor of its operation. All executive operations take place in his name. He has power & responsibility for the enforcement of constitution, laws, treaties and judicial decisions of Supreme Court within the country or outside. He has broad powers to manage national affairs and workings of the federal government. He can issue rules, regulations and instruction called executive orders, which have binding force of law upon federal agencies but do not require congressional approval. He also exercises complete power over his cabinet and its members. All cabinet members are appointed by him and do as he directs them to do. He is mainly responsible for the administration of national government and supervision of administrative departments and agencies.
(b.) POWERS OF APPOINTMENT:
The President has power to appoint superior officials of the country such as secretaries (ministers) and other heads of executive departments and agencies, Ambassadors to foreign countries and international organizations such as UNO and NATO, judges to the Supreme Court and other high ranking federal officials. However he needs Senates confirmation over these Superior appointments. He can also appoint inferior officials for which no Senate confirmation is required. If the Senate’s majority members are from the party to which the President him self belongs, than he would have no problem in confirmation of Superior Officials he prefers.
The President is the Commander-in-Chief or the Chief of the armed forces, and is responsible for the defence of the country. He appoints all military officers, supervisors and directs the work of the army, navy and the air force. He also presents budgets for military expenditure and employees, troops for the offensive and defensive purpose. The President can declare war with the approval of Congress and also make peace without the Congressional consent.
(d.) MAINTAINANCE OF LAW AND ORDER:
President is responsible for the maintenance of Law and Order throughout the land. He may use his powers to maintain order, even with force, in part of the country where there is resistance. The President can take action to restore Law on Order on his own if the matter is of federal jurisdiction. If it is of State jurisdiction he can restore order on the request of the State Legislature.
2. DIPLOMATIC POWERS:
Under the constitution, the President is the federal official primarily responsible for the relations of the United States with foreign nations.
• He formulates foreign policy
• Appoints all diplomatic representatives or ambassadors to foreign states with the consent of Senate. He also receives Ambassadors from foreign States.
• He has power to enter into executive agreements with foreign states. For this he does not require Senates ratifications.
• He does not have exclusive rights to declare war against any country. For this he requires Congress’s approval. However he can ceasefire or terminate hostilities in order to bring an end to war on his own, with out the consent of the Congress.
• The President has the sole authority to recognize a new State or a new government is foreign States.
The President of US is aided by his Secretary of State and the State Department in order to carry out countries foreign relations. Some times Department of Defence also plays major role in formulating President’s foreign policies.
US PRESIDENT IS DIPLMATIC DICTATOR AT WAR
The enlargement of diplomatic powers in the hand of President along with the role of Chief-Executive and Commander-in-Chief under his belt has placed in his hands the power to bring the country at war that congress has been forced to acknowledge. Thus the President’s prerogative of declaring war, half wars or undoing war has virtually swallowed the Congressional right to ratify the declaration of war or declare war on it self. All these powers were generated to greater extent during the World War 1 and 2 and especially during the Cold War, and even though these threats are over the Presidents of US continue to use and misuse these powers. All these powers point out that the US President is dictator of foreign relations.
3. LEGISLATIVE POWERS
Under the doctrine of “Separation of Powers” the President of the United States has limited legislative authority. That power has been enormously vested in the Congress. The President can not summon, prorogue or dissolve the Congress. He is not a member of Congress and can not initiate any bill directly. Congress can make any Law and pass any bill against his wishes. But despite this constitutional limitation, the President as the Chief formulator of the public policy has a major legislative role.
(a.) VETO POWER:
All the bills that Congress passes are subject to President’s approval. He may deal with them in following manners:
• He may assent the bill and it will became act or affective
• He may take no action on it and with in 10 days it becomes an ACT, if Congress is still in session.
• He may take no action on it and with in 10 days it is killed, if Congress is not in session. It is known as “Pocket-Veto” of the President.
• He may return the Bill with or without amendment
• He may directly VETO the bill, and unless two-third of members of each house of Congress votes to override the veto, the bill does not become law.
The President can send messages to the Congress suggesting some legislative measures; which can not easily be ignored by the Congress. In annual and special messages to Congress, the President may propose legislations he believes is necessary.
(c.) PROPOSAL FOR LEGISLATION:
The President of US can recommend measures to the congress for the legislation. He may either send proposal for new legislation or amendment to the old legislation.
(d.) EXTRA-ORDINARY SESSION:
The most important occasion for Presidential messages and legislation related proposals to be put forward to Congress is the annual State of the Union Address. Here, before the joint session of the Congress, the President outlines the status of the country and his legislative proposals for upcoming year or years. In case the Congress is not in session, the President has power to call extra ordinary session of Congress to consider special matters of urgent need. However, Congress is not bound to accept the President’s recommendations at special sessions.
4. JUDICIAL POWERS:
Like the legislative powers, the constitutional doctrine of “Separation of Power” also limits the judicial powers of the President and vests it more in the judiciary under the Supreme Court. However, the President does exercise some important and influential judicial powers. These judicial powers are as followed:
• He has power to Pardon some one who has broken the federal law – Except in case of impeachment.
• Power to Reprieve, which postpones penalty of execution.
• Power to grant Amnesty.
However; President can not grant pardon or reprieve to offenders convicted under state laws.
5. FINANCIAL POWERS:
The President is the real financial manager of the country as he directs and controls the finances. Although the Congress has power to control the federal financing in theory, but in practice the President actually controls the finances. Under the direct supervision of the President, the national budget prepared; which placed before congress for approval. However, congress can not amend or change it. In order to practice his financial powers, President is aided by the Finance Department and his hand picked members of cabinet.
His diplomatic powers have become so enormous that not only he can veto the work of American Congress but also in some ways the work of foreign assemblies. He has free hand to do what he desires at home and abroad. With nuclear and military supremacy, the position and powers of the American president have become most perilous in the world today.
In other words we can say that the President of United States is virtually a dictator both domestically and internationally.
2. THE PRESIDENT’S CABINET
Initially the framers of the constitution did not include the provisions for Cabinet in the Constitution. It expected the Senate to act as a body of advisors of the President. But because of the Senate’s powers to disapprove treaties and appointments made by President, it was difficult for President to continue such relationship with it. This problem was quickly recognized by the 1st President of the United States; George Washington. Hence he began to consider the advice of his principle officers in matter of administration. The Presidents meetings with these advisors are what came to be known as “The Cabinet.” The Congress used this term more and more in congressional debates and by 1793, President George Washington had pursued Congress to recognize the Departments of Foreign Affairs (now called State Department), department of treasury and department of War. In due time congress fully recognized the President’s need to have cabinet and it included the Articles regarding the Cabinet System in the constitution.
CONSTITUTIONAL AND LEGAL STATUS
Article-II of the constitution provides that the President can require “the opinion, in writing, of the principle officer in each of the executive department, upon any subject relating to the duties of their respective offices.” The 25th Amendment provides that the Vice-President and a majority of the principle officers of the departments can transmit a notice that the President is unfit for office.
Even though the Cabinet system is as old as the constitution, yet its nature and composition remains informal. Hence there is nothing definite about its relations with the President. The Cabinet consists of Principle advisors to the President. President holds meeting with them mostly to discuss important administrative matters. The Principle advisors are known as secretaries and President appoints them to different departments. The cabinet in the US is found under the will of President and functions entirely on Presidential initiative.
The members of the Cabinet hold two kinds of responsibilities. They administer the departments of federal government and advice President on matters relating to federal administration. All members of the Cabinet are hand picked by the President him self, but are subjected to the Senate’s approval. It is very rarely that Senate rejects President’s nominations.
There is no definite size of the President’s cabinet. President may include as many persons to it as he desires. During George Washington’s Presidency there were only four heads of departments but as the executive powers of President increased, the number of principle members also increased and thus the number of persons in Cabinet also increased. The Vice-President is also a member of the Cabinet and sits in its meetings regularly.
As said before, the nature of and composition of the Cabinet remains informal. The President may form the Cabinet in what ever method he likes and nominate what ever people he likes. However; it is become a trend to distribute seats on geographical basis. Members are chosen from Eastern, Western and Southern regions of the country. In modern era the Presidents prefer to choose people from all walks of life e.g; the recent trend is to include the businessmen, even though he may not have any political background or knowledge. But he may be useful on finance and business related matters. Many times the President nominates their personal friends; President Roosevelt included his friend W.H. Woodin, while President Kennedy inducted his own brother Robert Kennedy as Attorney General. On many times the cabinet members have been the past governors of the federating States, ex-senators, representatives and other political office holders.
Only sensible step taken in formation of the cabinet is that appointments are made on the ground of the special knowledge and experience or administrative ability of the nominee. For example; Lawyers are usually nominated for the seat of Attorney General. In order to ensure that the nominations are based on above elements, the constitution allows the Senate to either approve or disapprove of President’s choice.
Unlike in parliamentary system, the American President’s cabinet is rarely shuffled/
CABINET MEMBER SELECTION PROCESS
At the moment there are 15 departments for which the President makes choice for his Secretaries. As discussed before; the President makes his choice of nominee, while the Senate approves (or disapproves) by a simple majority. The selected secretary can not hold office in legislative or judicial branch during his membership of the cabinet.
In addition, the President or Congress can de-select a member and fire or impeach him. The cabinet member also has right to resign from the office or withdraw his nomination or refuse to take office. In such case President will have to make a fresh appointment.
Unlike the Congress, the Cabinet is not obliged to formal and regular meetings. The American cabinet is just an advisory body. President may either have some use or no use of it at all. Hence it is President’s choice to whether hold meeting with the cabinet or not. In recent years, the cabinet is usually summoned once a week and during emergencies they meet for frequently. The meetings are usually informal, there are no rules or regulations on the discussion and debate and no official records are kept, except for the rough paper that President may use to write down some points. The advices in the meetings may be accepted or rejected by the President and no voting is required.
All and all, the Cabinet is what the President wants it to be. It is the least successful federal institution and it is unlikely that the President is to make it outstanding. They simply are not a government, but just a voice of advice in it.
The US constitution provides for a Vice-President. The office of Vice President possess great potentialities but little of actual power. Because of this reason many delegates at the Philadelphia Convention felt the inclusion of provisions for the office of Vice-President unnecessary. However the provision was ratified along with the constitution. The constitution requires the Vice-President to possess the same qualifications as are prescribed for the President.
1. A natural born Citizen of United States
2. Must not be less than 35 years of age
3. Must have resided not less than 14 years in the country
The Vice-President is elected at the same time, in the same manner and for the same terms of four years the President is. The original draft of the constitution called for candidate securing second highest votes to be declared the Vice-President. However, the Provision was later changed in order to accommodate the President with supportive Vice-President.
The constitution assigns following functions to the Vice-President:
• SUCCESSION TO THE PRESIDENCY:
The potential function of the Vice-President, under 25th amendment, is to fill the office of the President in case the President has died, resigned, unable to perform the Presidential duty or removed through impeachment. He than assumes the Presidency and all executive powers and duties are devalued upon him. He will continue the remainder term of the Presidency till the next Presidential elections. In case both President and Vice-President have died, resigned, removed or are unable to perform the duties, the constitution calls upon the Congress to decide on who will continue the office of Presidency till the next elections are held.
Vice-President Lyndon Johnson succeeded to the office of President after the assassination/death of President John .F. Kennedy in 1963. Vice-President Gerald Ford took the Presidency after the resignation of President Richard Nixon in 1974. During the Nixon’s Vice-Presidency he took the Presidential powers on informal basis for weeks when President D.D Eisenhower was ill. Vice-President Nixon had to perform Presidential duties three times under the same circumstances. In the same manner Vice-President George Bush took Presidential powers during the absence of President Ronald Reagan.
• EX-OFFICE CHAIRMAN OF SENATE:
The Article-1, Section-3 of the Constitution calls the Vice President to be the Ex-Office Chairman of the Senate and Preside over the meetings of the Senate. He also has a vote incase of a tie. In practice the Vice-President rarely presides over day-to-day matters in Senate. In his place the Senate chooses a President Pro Tempore (or “President for a temporary period” or for a “Time.”) to preside the meetings.
Another function of Vice President, as a Chairman of Senate, is to preside over the counting and presentation of the Presidential and Vice-Presidential electoral votes by the U.S Electoral College, in presence of both the house of Congress.
• MEMBER OF THE CABINET:
The Vice-President works as a part/member of the President’s Cabinet. His association with administration enables him to be trained in administrative affairs, so that he may be able to handle the Presidential Office, if chance becomes.
Initially the constitution called for the person securing highest votes to become President, while the person securing second highest votes in Presidential run to become the Vice-President. If no one received a majority of votes, then the House of Representatives would choose between the four highest vote-getters, with each state getting one vote. In such a case, the person who received the highest number of votes but was not chosen President would become Vice President. Incase there was a tie in the 2nd phase, than the Senate would choose the Vice-President.
The framers of the constitution had however not foreseen the PARTY System. In the elections of 1796, for instance, Federalist John Adams came in first, and Democratic-Republican Thomas Jefferson came second. Thus, the President and Vice President were from different parties. With President from one party and Vice-President from another, there was continuous conflict amongst them. An even greater problem occurred in the election of 1800, when candidates from same party tied in the elections. The Democratic-Republicans nominated Thomas Jefferson for the Presidential seat, while they nominated Aaron Burr as well. The intentions for Aaron Burr were to get 2nd highest votes and become the Vice-President. But instead both Jefferson and Burr ended up with same number of votes; hence both were candidate for US Presidency. After 35 unsuccessful votes in the House of Representatives, Thomas Jefferson finally won on the 36th ballot and Burr became Vice President.
These constitutional conflicts led the legislature to adopt 12th Amendment in 1804. The amendment called for the electors to use separate ballots to vote for the President and Vice-President. Even though this solved the problem at hand, but it lowered the prestige of the Vice-Presidential office, as the Vice President was no longer the second choice for President.
The constitution also prohibited the electors from voting for both President and Vice Presidential candidate from the same state as themselves.
Formally, the Vice Presidential candidate is nominated by the party convention. However, it has long been the custom that the Vice Presidential candidate has been effectively named by the Presidential candidate. Often, the Presidential candidate will name a Vice Presidential candidate to bring geographic or ideological balance to the ticket or to appeal to a particular constituency.
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content 1.4 The Congress
1.4 THE CONGRESS
2. THE SENATE
3. THE HOUSE OF REPRESENTATIVES
4. LAW MAKING PROCESS
“All legislative powers herein granted shall be vested in Congress of the United States, which shall consist of a Senate and a House of Representatives.” --- Article-1 of the constitution of United States.
The American Congress is a bicameral legislature, as the constitution calls on two houses to perform legislative activates. The upper house is called Senate, while the lower house is called House of Representatives respectively. The framers of Constitution intended to make the Congress more powerful organ of government than the Presidency. However, in the 19th centaury it became least popular body. But by the cause of time the matters improved and the Congress regained its popularity. It is now considered as the Bulwark of “free democracy” by many scholars.
The subsequent history and evolution of the congress has proved that the bicameral structure was a wise step by the founding fathers. The bicameral system operated without any remarkable restrains throughout the history. Although some times dead lock between the Senate and House of Representatives were created, yet no one advocated for the abolition of either house. Especially the House of Representatives never pursued to eradicate Senate from the constitution, as posed as wall against many of its bills. At the end of the day, the House of Representative had to accept the approvals and refusals of the Senate. Indeed, the Senate has become the more important chamber than the House of Representatives. The Congress today is not what the founding fathers intended it to be and nor has it become what the feared it would be.
The congress has legislative powers; which are limited by the veto-power of the President and by the Supreme Court’s power of Judicial Review. The congress has also a great hand in the development of the constitution. It is its own master. It convenes and adjourns its session without any interference from the Executive (the President). However it does not have similar control over the Executive as the legislature in Parliament system has.
To further understand the Congress let us study the Senate and the House of Representatives.
The Senate is the upper chamber or upper house in the American legislature known as Congress. It consists of 100 members on the basis of parity or equal representation of all the 50 States. Each State elects 2 Senators irrespective of its size and population. Initially the Senators were elected by indirect method through State legislatures. This method was provided by the Constitution, but the 17th amendment empowered people of each State to directly elect 2 senators from their respective States.
The term of Each Senator is 6 years. One-third of the members retire after every 2 years. It is a permanent body and cannot be dissolved by any authority. The Senators who retire after the end of their terms are eligible for re-election. If a Senate seat is vacant by resignation, death or any other reason, the governor of the concerned State is empowered to nominate the successor to the vacant seat until the next Senate elections. The vacant seats cannot be terminated.
The majority of members present in the Senate can vote to exclude senator on the basis of disorderly behavior or for some other grave reason. The voting requires at least two-third majority to remove the Senator.
Fifteen members have been expelled in the history of the Senate; 14 of them were removed in 1861 and 1862 for supporting the Confederate secession, which led to the American Civil War. No senator has been expelled since.
Under the 14th Amendment, any federal or state officer who takes the requisite oath to support the Constitution, but later engages in rebellion or aids the enemies of the United States, is disqualified from becoming a senator.
According to the Article-1, Section-3 of the constitution a senator must be:
1. Not less than 30 years of age
2. A citizen of US for 9 years
3. An inhabitant of the State from which he is elected
The Article-1 of the constitution states that each state may elect two senators. The Constitution further stipulates that no constitutional amendment may deprive a state of its equal suffrage in the Senate without the consent of the state concerned. Originally the constitution provided for indirect method for the election of the senators, meaning; senators would be elected by the respective legislature of the States. However, with the passage of time, this method showed plenty of defects. E.g. there were frequent deadlocks among the members of State Legislature which mostly resulted in senatorial seats lying vacant for quite a long time. Cases of bribery and virtual purchase of seats also surfaced. In 1913, the Congress adopted the 17th Amendment in constitution, which gave liberal orientation to the Senate. The 17th Amendment introduced direct-popular Senatorial-elections. It called upon people of States to elect their 2 Senators respectively.
Senators serve for terms of six years each; the terms are staggered so that approximately one-third of the Senate seats are up for election every two years. The staggering of the terms is arranged such that both seats from a given state are never contested in the same general election.
The Seventeenth Amendment also provides that vacancies in the Senate, however they arise, may be filled by special elections. A special election for a Senate seat need not be held immediately after the vacancy arises; instead, it is typically conducted at the same time as the next biennial congressional election. If a special election for one seat happens to coincide with a general election for the State’s other seat, then the two elections are not combined, but are instead contested separately. A senator elected in a special election serves until the original six-year term expires, and not for a full term of his own. Furthermore, the Seventeenth Amendment provides that any state legislature may empower the Governor to temporarily fill vacancies. The interim appointee remains in office until the special election can be held. All states, with the sole exception of Arizona, have passed laws authorizing the Governor to make temporary appointments.
PRESIDING & OTHER OFFICERS:
As said before, the Vice-President of the United States is the Ex-Officio Chairman of the Senate. He presides over the meetings of the Senate but does not cast his vote unless there is a tie. He cannot appoint the committees of the Senate nor can he control the States through his powers of recognition. The constitution has limited the powers of Vice-President in Senate as he is not an elected member of the Senate and only acts as a watchdog or a mouthpiece, performing duties such as announcing the results of votes.
Incase of the absence of the Vice-President, the presiding authority is handed over to the President pro-tempore (Latin for “temporary President). Unlike the Vice-President, the President pro-tempore is elected from the Senators. But he plays no active role in the deliberation of the House. He is the nominee of the majority party in the Senate. He can vote on all issues and can participate in its debates. Incase the vice-President becomes the President, the President Pro-Tempore takes permanent place as the Chairman of the Senate.
The Senate is also served by several officials who are not members. The Senate's chief administrative officer is the Secretary of the Senate, who maintains public records, disburses salaries, monitors the acquisition of stationery and supplies, and oversees clerks. The Secretary is aided in his work by the Assistant Secretary of the Senate. Another official is the Sergeant-at-Arms, who, as the Senate's chief law enforcement officer, maintains order and security on the Senate premises. The Capitol Police handles routine police work, with the Sergeant-at-Arms primarily responsible for general oversight. Other employees include the Chaplain and Pages.
Senate procedure depends not only on the rules, but also on a variety of customs and traditions. In many cases, the Senate waives some of its stricter rules by unanimous consent. Unanimous consent agreements are typically negotiated beforehand by party leaders. Any senator may block such an agreement, but, in practice, objections are rare. The presiding officer enforces the rules of the Senate, and may warn members who deviate from them. The presiding officer often uses the gavel of the Senate to maintain order.
The Constitution provides that a majority of the Senate constitutes a quorum to do business. Under the rules and customs of the Senate, a quorum is always assumed to be present unless a quorum call explicitly demonstrates otherwise. Any senator may request a quorum call by "suggesting the absence of a quorum"; a clerk then calls the roll of the Senate and notes which members are present. In practice, senators almost always request quorum calls not to establish the presence of a quorum, but to temporarily delay proceedings. Such a delay may serve one of many purposes; often, it allows Senate leaders to negotiate compromises off the floor. Once the need for a delay has ended, any senator may request unanimous consent to rescind the Quorum Call.
During debates, senators may only speak if called upon by the presiding officer. The presiding officer is, however, required to recognize the first senator who rises to speak. Thus, the presiding officer has little control over the course of debate. Customarily, the Majority Leader and Minority Leader are accorded priority during debates, even if another senator rises first. All speeches must be addressed to the presiding officer, using the words "Mr. President" or "Madam President." Only the presiding officer may be directly addressed in speeches; other Members must be referred to in the third person. In most cases, senators do not refer to each other by name, but by state, using forms such as "the senior senator from Virginia" or "the junior senator from California."
The rules of the Senate provide that no senator may make more than two speeches on a motion or bill on the same legislative day. (A legislative day begins when the Senate convenes and ends with adjournment; hence, it does not necessarily coincide with the calendar day.) The length of these speeches is not limited by the rules; thus, in most cases, senators may speak for as long as they please. Often, the Senate adopts unanimous consent agreements imposing time limits. In other cases (for example, for the Budget process), limits are imposed by statute. In general, however, the right to unlimited debate is preserved.
When debate concludes, the motion in question is put to a vote. In many cases, the Senate votes by voice vote; the presiding officer puts the question, and Members respond either "Aye" (in favor of the motion) or "No" (against the motion). The presiding officer then announces the result of the voice vote. Any senator, however, may challenge the presiding officer's assessment and request a recorded vote. The request may be granted only if it is seconded by one-fifth of the senators present. In practice, however, senators second requests for recorded votes as a matter of courtesy. When a recorded vote is held, the clerk calls the roll of the Senate in alphabetical order; each senator responds when his or her name is called. Senators who miss the roll call may still cast a vote as long as the recorded vote remains open. The vote is closed at the discretion of the presiding officer, but must remain open for a minimum of 15 minutes. If the vote is tied, the Vice President, if present, is entitled to a tie-breaking vote. If the Vice President is not present, the motion fails.
On occasion, the Senate may go into what is called a secret, or closed session. During a closed session, the chamber doors are closed, and the galleries are completely cleared of anyone not sworn to secrecy, not instructed in the rules of the closed session, or not essential to the session. Closed sessions are quite rare, and usually held only under very certain circumstances where the senate is discussing sensitive subject-matter such as information critical to national security, private communications from the President, or even to discuss Senate deliberations during impeachment trials. Any Senator may call a closed session as long as the motion is seconded by at least one other member.
Budget bills are governed under a special rule process called "Reconciliation". Under Reconciliation, the senator’s right to speak for unlimited duration is abrogated. Reconciliation was devised in 1974 but came into use in the early 1980s.
The most significant aspect of the Senate is its committees, each of which performs a particular function; for which it was constituted. The committees; gathers facts, examine witnesses, set a date for public hearings in the bill, study in details all the views and prepare the reports and legislative drafts on which the House finally acts.
The important committees are based on; finance, appropriation, foreign relations, judiciary and inner-State commerce. All the issues before the senate are referred to the relevant committee for option and advice. An individual senator may be a member of more than two committees simultaneously.
There are four types of committees:
a. STANDING COMMITTEES:
There are 16 Standing Committees; which are permanent. They have fixed membership and deal with particular subject. Each standing committee has jurisdiction over a specific field such as Finance or Foreign Relations. Each standing committee may consider, amend, and report bills that fall under its jurisdiction. Furthermore, each standing committee considers presidential nominations to offices related to its jurisdiction. (For instance, the Judiciary Committee considers nominees for judgeships, and the Foreign Relations Committee considers nominees for positions in the Department of State.) Committees have extensive powers with regard to bills and nominees; they may block nominees and impede bills from reaching the floor of the Senate. Finally, standing committees also oversee the departments and agencies of the executive branch. In discharging their duties, standing committees have the power to hold hearings and to subpoena witnesses and evidence.
b. JOINT COMMITTEES:
The joint committees include members of both the Senate and the House of Representatives. They have been created for the purpose of exercising supervisory control over atomic energy, budgeting, congressional operations and literacy. Some joint committees oversee independent government bodies; for instance, the Joint Committee on the Library oversees the Library of Congress. Other joint committees serve to make advisory reports; for example, there exists a Joint Committee on Taxation. Bills and nominees are not referred to joint committees. Hence, the power of joint committees is considerably lower than those of standing committees.
c. SELECT COMMITTEES:
They are created occasionally to make some specific investigation with restricted jurisdiction. The select committees are also known as special committees. The examples of select committees include; Select Committee on Ethics and the Special Committee on Aging. Legislation is referred to some of these committees, though the bulk of legislative work is performed by the standing committees. Committees may be established on an ad hoc basis for specific purposes; for instance, the Senate Watergate Committee was a special committee created to investigate the Watergate scandal. Such temporary committees cease to exist after fulfilling their tasks.
d. CONFERENCE COMMITTEES:
Like joint committees, they also consist of members from both Houses of Congress. They are established to make compromises between two chambers in the case of conflict on a particular matter.
Each Senate committee and subcommittee is led by a chairman (always a member of the majority party). Formerly, committee chairmanship was determined purely by seniority; as a result, several elderly senators continued to serve as chairmen despite severe physical infirmity or even senility. Now, committee chairmen are in theory elected, but in practice, seniority is very rarely bypassed. The chairman's powers are extensive; he controls the committee's agenda, and may prevent the committee from approving a bill or presidential nomination. Modern committee chairmen are typically not forceful in exerting their influence, although there have been some exceptions. The second-highest member, the spokesperson on the committee for the minority party, is known in most cases as the Ranking Member. In the Select Committee on Intelligence and the Select Committee on Ethics, however, the senior minority member is known as the Vice Chairman.
POWERS OF SENATE:
The senate enjoys extensive legislative, financial, executive, judicial and miscellaneous powers. These may be discussed as followed:
1. LEGISLATIVE POWERS:
The Senate enjoys equal and coordinate legislative authority with the House of Representatives. Ordinary bills may be initiated by either House, but the money bill is only passed by the House of Representatives. But this privilege of the House of Representative is not much of significance because of Senates vast powers of amending. The senate may strike out every thing except for the title of a money-bill. The senate can also even substitute an entirely new bill and may send the same back to the House. However, the legislative history of US Congress shows that the Senate enjoys predominant position over the lower-house.
2. EXECUTIVE POWERS:
The framers of the constitution wished the Senate to be a sort of advisory council for the President is discharge of his executive functions. Since, initially, it was a body of 26 members from 13 States; it could perform the job advisory board. But since its growth in size it has also gained tremendous number of powers. By the constitutional doctrine of Checks & Balances it has gained some Executive Powers as well, in order to check the President’s authority. All appointments made by the Senate are subject to the consent and advice of the senate. All the treaties made by the Senate are subject to the ratification of Senate.
3. CONTROL OVER FOREIGN AFAIRS:
All treaties are negotiated and concluded in the name of the President, but all international treaties are subject to ratification by two-third majority of the Senate. The foreign-affairs committee enjoys a considerable influence over the foreign policy of US. It is therefore that the President keeps himself in close touch with this committee and regularly acquaints it with the latest developments in foreign policy.
4. JUDICIAL POWERS:
As said before that all appointments made by President are subject to the approval of Senate. This includes the appointment of Supreme Court Judges. In addition, the Senate it self performs as a court for impeachment of the President, Vice-President and other high ranking officials of US. The charges are to be referred by the House of Representatives and the impeachment is to be conducted by the Senate. The senate turns into regular judicial tribunal when it sits as a court. Prosecution is conducted by the committee of members of House of Representatives especially appoint for this purpose. The proceedings of impeachment are heard by the committee of judiciary of the Senate, which is than presided over by the Chief Justice of the Supreme Court.
5. MISCELLANEOUS POWERS:
a. The senate shares with the house of representatives the power to propose amendments to the constitution
b. The senate decides Vice-Presidential election when no candidate gets an absolute majority of votes in the elections and elects the one out of the two candidates securing the highest votes.
c. The senate appoints committees to investigate and report on the administration of the federal government. The committees expose scandals and inefficiency of the administration, if any. These committees are politically very vigorous. This way the senators dominate the politics of the country. The administration is generally afraid of the senatorial committees. Thus the senate exercises an effective control over the administration through these committees.
The multiplicity of powers of senate has proved beyond any doubt that it is not only the more powerful than the House of Representative but also the most powerful Senate/Second Chamber in the whole world.
(NOTE: the following part is very importent, as it answers on whole question of "American Senate is the most powerful Second Chamber/Upper House in the world. Discuss" ---- togather with the above information you would be able to provide a relevent answer.)
1. EXECUTIVE POWERS:
• THE AMERICAN SENATE IS THE MOST POWERFUL 2ND CHAMBER IN THE WORLD
The American Senate is the only legislative body in the world which enjoys some direct executive powers. It shares with the president the powers to make appointment of top-ranking officials and through this it controls the internal administration of the federal government. No treaties or agreements, concluded by the State-Department or President, are valid until ratified by the Senate. Through this power the Senate controls the foreign policy of the country. In addition, the Senate has powers to impeach the President, Vice-President and other high ranking officials. It should be noted that these powers are exclusively exercised by the Senate. This raises the prestige of and dignity of the Senate.
2. ABSENCE OF PARLIMENTARY SYSTM OF GOVERNMENT:
In countries with parliamentary form of government, the lower house attains a higher status than the upper house. In many countries the lower house has control over the executive; i.e. In England & Pakistan. In US, however, the position is reverse. It is the Upper House or Senate which has sufficient control over the executive as well as over the Lower House or the House of Representatives. However; the Lower House in US is completely devoid of such power. The constitution has made the Senate a coordinate chamber to the House of Representatives in the legislative matters, while in parliamentary form of system, the lower house has more power in legislative matters.
3. SMALL MEMBERSHIP AND LONG TENURE:
The membership of the Senate is small but its tenure is longer than the House of Representatives. On the other hand the membership of the House of Representatives is large but the tenure is short. The Senate consists of 100 members and its members are elected for a term of 6 years. While the membership of the House Representatives is 437 but it is only elected for 2 years term. Because of this fact, the Senators are not worried about their re-election after every two years. By staying longer on the legislative seat, the Senate also acquires greater experience, more credibility and exerts greater influence than the House of Representatives. By staying longer, the Senate can also fulfill its long term policies and programs. It is because of these reasons that the House of Representatives is forced to concur with the Senate in order to expedite business.
4. SENATORS ARE SENIOR POLITITIONS:
Senior politicians and men with legislative experience with wider knowledge of public affairs, usually opt for the membership of the Senate, because of its longer term and greater prestige than the House of Representatives. The result is that the Senate becomes superior to the House of Representatives in terms of ineffectual quality, legal talents, intellect and political wisdom. The media gives greater coverage to the Senatorial speeches and sessions than to the House of Representatives. The public attention is more focused on Senate as well.
In other countries the Senators may be men of legislative experience with wider knowledge of public affairs, but the fact that their Senate it self is not Superior to their Lower House diminishes their prestige. In these countries the attention of media and public is on the lower houses.
5. DIRECT ELECTIONS OF SENATORS:
Unlike the Senators or members of the upper house in countries like England, Pakistan or Canada, the US senators are directly elected by the people. It is a common democratic experience that an indirectly elected upper house finds it difficult to resist the will of the lower house which is elected directly by the people. However; in US the Senate can claim equally representative character with the House of Representatives. It is therefore the House of Representative is not capable of dominating the Senate.
6. EQUAL LEGISLATIVE AND FINANCIAL POWERS:
The Senate in US enjoys equal powers in legislative and financial spheres with the House of Representative, both in theory and practice. In England, the Upper House of House of Lords is given lesser authority than the Lower House or the House of Commons. The Upper House/Senate in Pakistan shares the same position as it does in England. Since the Senate and House of Representatives in US share equal powers in legislative matters there are frequent deadlocks. To resolve the deadlock Conference Committees are formed. However, the legislative history of US shows that the Senate’s viewpoint ultimately prevails over the House of Representatives.
7. GREATER FREEDOM OF SPEECH:
The senators enjoy greater freedom of speech than the members of House of Representatives. A Senator can speak for as long as he desires. This enables a full length, simple and flexible debate on every matter and discusses every measure to solve the issues. Upper Houses in other countries do not enjoy such freedom of speech. In countries like Pakistan many senators are refused to talk on different matters by the chairman.
8. COURT OF IMPEACHMENT:
The Senate in US has sole right to impeach the President, Vice-President and other high ranking officials. The US senate has powers to investigate into all affairs whether public or private. This fact enhances the prestige of the Senate and enables it to over shadow the House of Representatives. No senate or upper house in the world has similar power.
9. SOLIDARITY OF THE SENATE:
The US Senate is the one legislative organ in the world, the members of which have solidarity and unity irrespective of their political affiliations. In 1938, when President Roosevelt tried to bypass the “senatorial courtesy”, the Senators of his own party stood against him along with the opposing members of the Senate. The entire Senate stands as one unit, whenever any attack on its authority is made.
10. THE SENATORS REPRESENT THE STATES:
The members of the Senate are directly elected by the entire population of a State, whereas the members of House of Representatives are elected by a fraction of population from their respective States. The Senators therefore have proud privilege of having greater representative character and greater popular support against the members of House of Representatives. The Senators represent the States as political units and regard them selves as representatives of the Nation as a whole. The local interest which dominates the House of Representatives hardly exists in the Senate. This gives to the Senate a natural precedence over the Lower House and adds to its majesty and dignity.
The US Senate is indeed a unique House. It partakes in all three functions of State; Executive, Legislative and Judicial.
In words of F.J. Haskin: “there are things which the President and the Senate may do without the assent of the House of Representatives, and things which the Senate and House of Representatives may do without the assent of the President, yet the President and the House or Representatives can do comparatively little without the assent of Senate.”
It is thus manifest that while upper chambers in the other countries of the world have been declining in power and importance, the US Senate is adding to its strength and importance. All these facts prove that no other Upper Chamber such as the British House of Lords, Pakistani or Canadian Senate enjoys such powers as are enjoyed by the Senate of US. The House of Lords of England is described as the weakest upper chamber of the world. The nominated Senate of Canada has no prestige compared to the Lower House. The Senate of Pakistan also has lesser prestige than the National Assembly with regards to the legislative and fiscal administration, as it is indirectly elected. We may, therefore, conclude that the US Senate is one of the great success of the American Constitution, a worth monument of the wisdom and foresight of its fathers. It can easily be said, without much of a debate, that the US Senate is the most powerful Senate or Second Chamber or Upper House in the world.
THE HOUSE OF REPRESENTATIVES
The House of Representatives is the lower chamber of the American Congress. It is a legislative body sharing powers with the Senate. Even though it is weaker in power compared to Senate, no legislative measures are possible without the House of Representatives. It is the popular body representing the US citizens on national principle based on population. Citizens of all sex and race but of at least 18 years of age can participate in electing a member of House of Representative.
Initially the House of Representatives consisted of 65 members but now its membership is permanently fixed to 437 unless changed by a making an amendment to the constitution. The number of representatives for each State is fixed by the Congress in proportion to its population.
The term of House of Representatives is two years. It cannot be dissolved earlier.
The House meets every year on 3rd of January according to the 20th amendment of the constitution and remains in session until its members vote to adjourn. However, the President can convene its special session. It than confine it self strictly to the task, for which it is summoned and does not discuss any other matter.
The constitution calls for a candidate for the House of Representatives to posses the following qualifications:
a.) Must be at least 25 years of age
b.) Must be citizen of US for at least 7 years
c.) Must be citizen of State from which he wants to contest election
d.) Must not hold any office or profit under the government of US
a.) The member gets annual salary of $22,500 plus $2,500 expense money.
b.) Members are free from arrest except for treason, felony and breach of peace, during the session of the house.
c.) Members enjoy the freedom of speech on floor of the House.
Unlike the Senate, the Vie-President does not preside over the House of Representatives. Instead the House elects its own speaker. The elections for the House speaker are held purely on party-lines. The candidate for the House Speaker is member of the majority party, he is partisan and openly favors the party to which he belongs, even after he elected as the Speaker. He is virtually the leader of the majority party and the legislative leadership devolves around him.
FUNCTIONS AND POWERS OF THE SPEAKER OF THE HOUSE
a.) Presides over the session of the House and maintains order and decorum in the House.
b.) Recognizes members on the floor of the House and allows members to speak.
c.) Decided points of order passed by the members of the House.
d.) Puts question to the vote of the House and declares the result.
e.) Interprets and applies the rules of procedure of the House, when any question on procedure is raised. His decision cannot be questioned.
f.) Refers the bills to an appropriate standing committee for consideration and action
g.) Selects the chairman of the committee of the whole House and appoints his deputy. Also appoints members of the special committee
h.) Signs all the bills passed by the House
POWERS OF HOUSE OF REPRESENTATIVES:
a.) LESGISLATIVE POWERS:
The House of Representatives enjoys co-equal and coordinate authority with Senate in the domain of legislation. However, Senate has authority to amend or reject any bill passed by the House of Representatives.
b.) FINANCIAL POWERS:
According to the Clause-1, Section-7, Article-1 of the constitution ‘all financial bills must originate in the House of Representatives. This is an adoption from the British Constitution. According to this doctrine, all national finances must be controlled by the House directly responsible to the people. The financial matters mean all legislations involving appropriation. All appropriation bills originate in House of Representatives. This means that the annual Budget Bill must be formed by the House of Representatives.
(Note: In British Constitution the House of commons is directly responsible to the people as it is elected by the people, hence the financial powers are vested the House of Commons. House of Lords, which passes for Senate, has no say in financial affairs. However, in US the Senate is equally responsible to the people as like the House of Representatives it is directly elected by the people. Yet it has no say in financial bill. The clause that House of Representatives alone should control the finances was established by the original constitution, but even after the amendment which switched senatorial elections from indirect method to direct method, the clause were not amended)
However, Senate has power to tame revenue legislations and this can increase or decrease any given appropriation. Senate can also amend or reject the money bill.
c.) EXECUTIVE POWERS:
Unlike Senate, the House of Representatives does not posses much of a control over the executive. The only executive power it possesses is that along with Senate it can declare war and conclude peace. Unlike in parliamentary form of government, the executive neither holds responsibility nor can be removed by the House of Representatives. However, it has exclusive right to initiate impeachment proceeding by preparing charges against the executive, which in this case is President. House or Representatives can also initiate impeachment for Vice-President, Supreme Court judges and other high ranking officials.
d.) AMENDING POWERS:
The House of Representatives participates in the process of amending the constitution of US. It shares with Senate to propose amendments in the constitution by two-third majority in both chambers.
e.) ELECTORAL POWERS:
Unlike parliamentary form of government, the House of Representatives does not posses powers to participate in electoral process of the Executive. It can only elect a President if no candidate has secured the majority. In this case the House will elect President from top 3 candidates.
In all the democracies of the world the Lower Chamber enjoys greater power than the Upper Chamber. However, the situation is reverse in US, even though the framers of the constitution intended to make the House of Representatives more powerful.
FACTORS CONTRIBUTING FOR THE WEAKNESS OF THE HOUSE OF REPRESENTATIVES
1. MORE TO SENATE:
The senate possesses equal powers in legislative and financial sphere (except for producing money bill). The Senate also has powers to reject any legislation passed by House of Representatives. This weakens the powers of House of Representatives.
The Senate is also a directly elected body like the House, but unlike the House it has longer tenure and is a permanent body. This also weakens the powers of House of Representatives.
In other democracies of the World, the Senate lacks in power. US senate at least has powers to amend and reject money bill, while other Senates around the world don’t even come across the money bill. Unlike the US Senate the Senates around the world are indirectly elected. This gives more powers to Lower Chambers in other democracies, which makes Lower Chambers in other countries more powerful than the Lower Chamber in US.
2. NO POWER OVER EXECUTIVE:
Unlike in the parliamentary form of government, the executive is neither responsible to the House nor does he spring from it. He can’t even be removed by the House. Even the ministers are not elected from the House. In place of ministers, there are secretaries in US which are appointed by the President and ratified by the Senate. The house has no power in this process.
In other democracies in the world, the Lower chambers elect the Executive and his ministers. This makes other Lower chambers around the world more powerful than the House of Representatives in US.
3. TREATIES AND APPOINTMENTS:
Unlike other Lower-Chambers around the world, the House has no power or participation in appointment of high ranking official like the secretaries. The house can not even participate in treaties concluded by the President.
4. SHORT TENURE:
The tenure of the House is very short. It is elected for only two years. This discourages the senior and talented personal from joining the House. Instead they opt for Senate, which in turn makes Senate more intellect and powerful. Because of this short tenure the members of the House are busier in election process than in legislation process. As soon as they are elected, they start working on their next election.
5. LARGE MEMBERSHIP LIMITATIONS:
Unlike the Senate, the House has larger membership. This possesses some limitations. Time limit is imposed during the speech. This does not enable the speaker to make the debate lively.
6. LACK OF LEADERSHIP:
Unlike parliamentary of government, like in England, there is no leader of the House or spokesman of the government. The speaker of the House is the leader but he is too busy presiding meetings and regulating debates.
7. LOYALTY TO POLITICAL PARTIES:
Unlike the Senators, the House members pay more loyalty to their parties rather than creating a political unity like in the Senate. This hampers the influence of the House.
8. UNDER THE CHECK OF JUDICIAL REVIEW:
The powers of judicial review in the hands of Supreme Court dampen the initiative of the House in legislative sphere. The members are too worried that their legislative bill may be passed as void by the Supreme Court.
All these factors contribute in making the House a weak chamber. It is probably the weakest Lower Chamber when compared to the Lower Chambers of other democracies.
The Law determines the policy of the country. The main function of the congress is to make laws or to amend or repel the existing ones. The process of law making and amending it is known as Legislative Process. Before going through the Law making process it is important to have some knowledge about bills and resolution that play important role in Law making. All legislative proposals are of two kinds; Bills and Resolutions.
Bills are of three kinds: Public bills, Private bills and money bills.
• A PUBLIC BILL:
It deals with general matters of public importance and embodies a major program of government policy.
• A PRIVATE BILLS:
It deals with a person or place and is of private importance.
• A MONEY BILL:
It deals with money matters such as taxes and is originated in the House of Representatives.
There are three kinds of resolutions namely; Joint Resolution, Concurrent Resolution and Simple House or Senate Resolution.
• A JOINT RESOLUTION:
It is passed by both Houses of Congress and is submitted to President for his assent.
• A CONCURRENT RESOLUTION:
It is employed to express an attitude, opinion or objective of both Houses; which correct errors in the bills already passed by the Congress and it needs no verifications by the President.
• SIMPLE HOUSE OR SENATE RESOLUTION:
It expresses the opinion and purpose of the concerned House and does not require any endorsement.
STAGES OF LAW MAKING OR LEGISLATIVE PROCESS
The following stages are adopted in Law-Making process in the Congress:
1. FIRST READING:
Normally all Bills are introduced by a member of either house. That member is known as the Sponsor of the Bill. The sponsor of the bill from the House, endorses the copy of the bill with his name and drops it in the House or the Secretary’s table in the Senate. The bill is immediately numbered in order of its representation and is sent to government printing press. The copies of Bill are than made available to all members of the House next morning. This process is called introduction or the “First Reading.”
2. COMMITTEE STAGE:
The presiding officer refers these bills to the appropriate standing committees. In the case of private bill the sponsor himself writes the name of the committee while in the case of public bills, the subject matter of a bill would indicate to which committee it should be referred to.
This stage is one of the important steps in law making process. In the committees, bills are first given preliminary examination and a decision is taken, whether the proposal has any mint or not. Important matters are sorted out for further consideration, while unimportant and irrelevant matters are dropped or “Pigeon-Hold” as it is called in official terms.
The important matters are studied by the concerned committee, which gives it a thorough consideration either by it self or by sub-committee. The committee or sub-committee collects information and data on the subject matter through public hearings and Congress Library in order to arrive at a decision. The lobbyists or Pressure-groups who are interested in the Bill also provide information to the committee.
After collecting the information through various sources, the committees meet in the executive session. It may take following courses:
a.) It may approve the bill, as it stands
b.) It may amend the bill and send the same to the concerned house for approval
c.) It may re-write the bill keeping only its name and send it to the house for adoption
d.) It may condemn the bill and may substitute it with the new one
e.) It may kill or reject or Pigeon-Hold the bill by keeping it on its files.
3. REPORTING THE BILL:
Usually the chairman of the committee or someone designated by him may report the verdict of the committee, to the concerned chamber. In important matters the reporting is extensive and in ordinary matters the reporting is little more than a simple affirmative. The killing of the Bill is not reported in the House. The majority of the House can also discharge a petition for reporting back or calling back of the Bill from the Committee. This has to be done within 30 days of the submitting of Bill to the committee. This petition rule is rarely applied.
4. SECOND READING:
After the reporting of the bill, the “Second Reading” is resumed. Every clause of the Bill is discussed and debated upon. Amendments and counter amendments are proposed and passed by voting. When the bill is finally shaped in second reading it generally re-printed and place is again placed before the House for “Third Reading.” It is not necessary to re-print the Bill for Third Reading. But before the third reading, the house may it self turn into a Committee to discuss the Bill put forward by the other standing committee.
5. COMMITTEE OF THE WHOLE:
When the House goes into the committee of the whole; the speaker leaves the chair, the rules of the House are temporarily suspended. The quorum is reduced to 110 members in the committee of the whole. This reduction allows greater freedom of speech to the members and gets more time to speak as well. Than the members propose large number of amendments, give explanations and may be even dispose of various elements of the bill.
6. THIRD READING:
At this stage only the title of the Bill is read without proposing any amendment and is voted upon by the House. If the Bill is passed by the House successfully, it is certified by the clerk and is sent to the Senate.
7. THE BILL IN THE SENATE:
The senate deals with the bill in the similar procedure. A senator announces that he is introducing. Reading the title of the bill constitute the first-reading. Second-Reading is considered completed if there is no objection and the bill is sent to the committee requested by the instructor.
The committees in the Senate are like that of the House. After the committee reports the bill favorable, it is placed on Senate calendar at least a day before being taken up. The senate holds its meeting and voting is done. If the bill gets majority it passes, if it can not get required majority it is rejected.
KILLING THE BILL IN THE SENATE
• If the Bill is rejected out right it is than considered as killed.
• Another method to kill the bill in senate is by using the device of Filibustering and cloture.
During the filibustering, a senator holds the floor for ours delivering relevant and irrelevant remarks, primarily intended to obstruct until some concessions are obtained.
The cloture is also known as Closure. It requires a petition to end a debate, signed by one-sixth of the senators. If this petition gets two-third majority, the cloture is in effect.
• Incase the Senate proposes some amendments to the bill, it is sent back to the House of Representatives. If the House agrees the amendments are made. If the House does not agree with the Senate, an effort is made to come to an agreement through give and take policy or through compromise. If this attempt also fails, the bill is referred to the joint-conference committee consisting of members from both the houses (9 members each). If the conference does not reach a compromise, the bill is than Killed.
If there is an agreement between the two houses on the bill, it is than referred to the President.
8. APPROVAL BY THE PRESIDENT:
After the bill is passed by both the Houses, it is brought forward the President for approval before it could become a Law. If the President approves of the bill he will sign it and it will than become a Law. If he disapproves of the Bill, he will return the Bill to the House where it was originated and send his objections along with it. The President can also veto the Bill in an attempt to kill it. In such case, two-third majority of both houses can vote against the Presidential veto. If the Houses successfully vote against Presidential Veto, the Bill becomes a Law without Presidential approval. If the President does not return the Bill within 10 days (Excluding Sundays), the bill becomes a Law without his signatures – this is valid if the Congress is still in session. If the Congress session has been adjourned before 10 days have elapsed, the President may easily kill the bill by abstaining over it. This is called President’s “Pocket-Veto.”
PROCEDURE OF LAW MAKING ON FINANCIAL BILL
As discussed before, the money bill can only be originated in the House of Representatives. The Bureau of budget prepares the budget of the country under the direction and the control of the President. The President makes the major fiscal policies with the help of the Bureau of Budget. The budget is planned for annual expenditure and is renewed after every year from July 1st to 30th.
The Budget is than introduced in the House of Representatives and passed by it. After the introduction of the budget, it is sent to appropriate committee. I.e. the Revenue bill is sent to the committee of “Ways and Means”, while the appropriation bill is sent to the committee on Appropriation.
The committee of “Ways & Means” holds public hearings of interested parties, which may be effective in one way or another. The bill is than reported back to the House with or without amendments. The House holds debates over the bill. After the Bill is passed by the House, it is referred to the Senate. The Senate can amend the Bill with concurrence of the House. If there is disagreement between two houses, the joint-conference committees are called in. If there is agreement the bill is reported to the President for signature and it becomes the Law for finance for the fiscal year.
This concludes our sub-chapter on "The Congress" ... only the Judicial system and Political Parites are left. I hope to post them by tomorrow. That will conclude our session on US Constitution. I appologise for the slow rate of updating and posting.
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chapter 1.5, JUDICIARY
2. NEED FOR FEDERAL JUDICIARY
3. TYPES OF COURTS
4. JUDICIAL REVIEW
The Judicial system of America is unique in many ways. It is federal in character and has judicial supremacy and power of judicial review. The American judiciary has extensive powers to defend the Constitution; which allows it to declare any law passed by Congress or an order issued by the Chief Executive (President) as void, if it is found contrary to the spirit of the constitution. The American constitution is based on the doctrine of ‘Separation of Powers’ aided by the system of ‘Checks and Balances.’ Under these features, the judiciary keeps all the organs and functionaries of the government within their respective jurisdiction and limitation.
The Article-III of the American Constitution has provided for the establishment of Supreme Court, separate from the State’s courts. The constitution has declared Supreme Court superior to the State judiciary. Hence The Supreme Court is the head of the judicial System of United States.
The Federal Judiciary consists of constitutional courts and Legislative Courts. The constitutional courts consist of courts of claims and courts of customs and appeals; while Legislative Courts consists of territorial courts, District of Columbia Court of Military Appeals.
NEED FOR FEDERAL JUDICIARY
The framers of the constitution and the founding fathers of America felt a need for an establishment of National Judiciary, which could be entrusted with the functions of deciding disputes among the States and between Federation and the Federating States. They realized that disputes were certain to arise as the meaning of various provisions of the constitution and interpretation of law passed by Congress were different.
They also planned for a “More Perfect Union” to “establish justice.” There for there was a need for establishment of a court, which would be an impartial umpire, supreme and independent of the States. Thus the constitution provides for a Supreme Court and its organization, procedure and the organization of the courts inferior to it are left to be determined by the Congress.
TYPES OF COURTS
There are tow types of courts. Namely:
1. Constitutional Courts
2. Legislative Courts
1. CONSTITUTIONAL COURTS:
The Constitutional Courts are those which are established by the authority of Article-III of the Constitution. The Constitutional Courts consist of:
(a.) Supreme Court
(b.) Court of Appeals
(c.) District Courts
(d.) Courts of Claims
(e.) Custom Courts
(f.) Courts of Customs and Appeals
(a.) SUPREME COURT:
The Supreme Court is the highest court in the US. It is composed of one (1) Chief Justice and eight (8) associate judges. They are appointed by the President with the advice and consent of Senate. The Supreme Court members cannot be dissolved, but can be impeached if found of any misbehavior towards constitution.
• JURISDICTION OF U.S SUPREME COURT
The US Supreme Court maintains both the original and the appellate jurisdictions.
The original jurisdiction extends to the following cases:
i. Cases affecting ambassadors and other public ministers/secretaries.
ii. Intergovernmental cases, in which Federal Government or State Government are parties.
Meaning it has original but not exclusive jurisdictions in:
cases brought by ministers of foreign States, in controversies between Federal Government and Federating States and in action by a State against aliens or against citizens of another State.
The appellate jurisdiction extends to:
All cases falling under the federal judicial authority. It can hear appeals from the lower federal courts and from State High Courts, in the cases which involve the interpretation of the Constitution in letter and spirit.
Cases that do not originate in Supreme Court come to it by an appeal or big writ of certiorari. Appeals are allowed as a matter of right in cases involving Federal and State powers, which obviously require ruling by the highest court (that is the Supreme Court). On the petition of certiorari the Supreme Court has the option of granting of denying review. About 80% of Supreme Court’s business arises from the petitions of certiorari.
• SESSION OF U.S SUPREME COURT:
The Supreme Court’s term begins annually on 1st Monday in October and usually ends early in the following June. Special session may be summoned by the Chief Justice when the Court is adjourned, on the occasion of unusual importance and urgency.
After the completion of arguments, the justices of the Supreme Court meet in a conference, on Friday, during a session, to compare views and vote. The Chief Justice states his opinion first but votes last. He also decides who will write the Court’s opinion. Every judge has to attend the conference with a responsibility of writing an opinion that will accord with his vote. If a majority can not reach an agreement, the case is re-argued and the decision of lower courts is allowed to stand.
ROLE SUPREME COURT
The U.S Supreme Court plays a dual role. In first place, it has to act as the guardian and custodian of the constitution and fundamental rights of the citizens. In the second place, it permits and helps the constitution to develop and expand with the course of time.
• GUARDIAN OF THE CONSTITUTION AND FUNDAMENTAL RIGHTS OF CITIZENS:
The U.S Supreme Court is the final interpreter of the Constitution. As a guardian of Constitution, it protects Federating States against any encroachment by the Federal Government or Vice Versa. It protects the individuals against invasion of rights by the Federating States and the Federal Government. It keeps the powers of various functionaries of the government of US within their respective spheres of authority.
The Supreme Court possesses the power of judicial review. It can declare any law passed by the Congress or any action taken by the President as “null and void” if they go against the provisions of the Constitution. Hence Supreme Court is the final court to judge the constitutionality of any law or executive decision. However, it can only move into the matter if a case is brought before it.
The Supreme Court declares laws and orders “null & void” on the basis of ‘due process of law’ clause. It means a law may be declared unconstitutional, if it does not satisfy the rules of reasons. In practice it means that a majority of Supreme Court judges may declare any law or executive action as invalid if it appears to them as unreasonable, unjust or immoral even though it is not a direct contravention of a particular clause of the constitution. In US law is correct only if the Supreme Court judges think that it is correct no matter it is against the constitution or not.
The judges of the Supreme Court not only interpret the Constitution but also determine political and economic policy of the United States. In U.S it is not for the people to say what law they want, but it is for the Supreme Court to declare what law is according to the constitution. Thus, the Supreme Court has become ‘Super Legislature’, or ‘3rd Chamber of legislature’.
• DEVELOPMENT OF CONSTITUTION:
The Supreme Court has contributed a good towards the development of the Constitution. By its powers of Judicial Review, the Supreme Court has always interpreted the Constitution to meet the needs of the times. By involving the doctrine of implied powers, it has made the Centre strong at the cost of States. Without this US federalism might have failed in these tomes of growing centralism.
If it was not for the liberal interpretation by the Supreme Court, the U.S constitution might have failed to satisfy the early 13 States which founded the country & also other States which joined in afterwards.
The decision and interpretation of the Supreme Court have played so great a role in evolution of the constitution that some commentators have called the Supreme Court a “continuous constitutional conventions.”
(b.) COURTS OF APPEALS:
Immediately below the Supreme Court stands the Courts of Appeal, created in 1891 to facilitate the disposition of cases and lessen the burden of Supreme Court. U.S is divided into ten circuits with a Court of Appeals for Each. About 3 to 9 judges, including a single Judge from Supreme Court are appointed by the President for each circuit. District judges can also be appointed to serve in the appeal courts.
The courts of appeals meet on regular intervals in each circuit. They only have slight original jurisdictions. The cases decided by the district courts, legislative courts and quasi-judicial boards come to these courts for review. However, the decisions and reviews of the courts of appeals can only be reviewed by the Supreme Court.
(c.) DISTRICT COURTS:
There are 89 District Courts in U.S. 50 States are divided into 87 districts, while there is 1 district court for ‘District of Columbia’ and one for ‘Puerto Rico.’ Each State has at least 1 district court but the States with larger population include 2 or more of these courts. Each District Court has at least 1 judge but up to 24 judges can be appointed there by the President with the consent of the Senate.
The permanent seat of the District Courts is maintained at a principle city. The Court holds meetings on regular intervals in various cities within the district. These courts chiefly possess the original jurisdiction. No cases come to them on appeal. Cases begin in State Courts and are usually transferred to them. Ordinarily the District Court cases require a single judge; however 3 judges must sit in certain types of cases.
(d.) COURTS OF CLAIMS:
The court of claims was created by the “Act of the Congress” in 1855, to hear claims against the United States. In 1953, it became a Constitutional Court. The Courts handle claims arising out of the Constitution, acts of Congress and executive order. The claims comprise of unpaid salary, property taken for public use, contractual obligation and personal injuries for which the Federal Government is allegedly responsible.
The courts of claims consist of a Chief Justice and 4 associate justices, who are appointed by the President with the consent of the Senate. The Court sits in Washington D.C on 1st Monday in each December.
(v.) CUSTOMS COURT:
It was established in 1890 as a Board of United States General Appraisers. It became Constitutional Court in 1926. It consists of a Chief Judge and 8 associate judges, appointed by President with the approval of Senate. Note more than 5 judges may be from same political party.
The Court hears disputes that arise out of decision made by Customs officers in the treasury department. The main office of Customs Court is located in New York City, however some case are also heard at the principle ports such as Boston, New Orleans and San Francisco.
(vi.) COURT OF COUSTOMS & APPEALS:
The Court of Customs and Appeals was established in 1910 and became Constitutional Court in 1958. It consists of a Chief Judge along with 4 associate judges, appointed by the President with Senatorial approval. The Court usually sits in Washington but it may convene in any judicial circuit.
The Court hears appeals against the decisions of Custom Courts. Its judgments and decrees are final with the exception that they may be reviewed upon through certiorari by the Supreme Court.
2. LEGISLATIVE COURTS
The legislative courts are those, which are created under the laws of the Congress. They are also known as Special Courts having no jurisdictions under the Article-III of the Constitution. They include the territorial courts, District of Columbia (D.C) Courts and Court of Military Appeals.
(i.) TERRITORIAL COURTS:
Besides the local courts each territory has a court, which functions as local courts in the Panama Canal Zone, The Virgin Island, Puerto Rico and Guam. It has jurisdictions over both Federal and territorial matters. The judges of territorial courts are not governed by the provisions of the Constitution but by the Legislative Acts. They are usually appointed for the term of 8 years.
(ii.) THE COURTS OF DISTRICT OF COLUMBIA:
The DC Courts exercise exclusive jurisdiction over the local cases of the district of general trial.
(iii.) THE COURTS OF MILITARY APPEALS:
This court was established in 1950. It is located in the Department of Defence for administrative purpose. It consists of 3 civilian judges appointed by the President with Senate’s approval. It reviews the more serious court material decisions concerning members of armed forces. Its decisions are final except in those rare cases in which Supreme Court does not agree on law point.
MEANING OF JUDICIAL REVIEW:
Judicial Review may be defined as the power of the Supreme Court to review all national and State Legislation and executive acts and declare them null or void if found un constitutional.
POWER TO JUDICIAL REVIEW:
The U.S constitution does not contain any specific provision concerning the power of Judicial Review. This issue was in fact never discussed in the constitutional convention of 1789. Many believe that the framers of the constitution never intended to confer such power upon Court and that the exercise of this power by the courts is usurpation on their part.
President Jefferson for one had argued the power of judicial review of the Supreme Court. According to him the constitution has organized government in three independent branches on the basis of Separation of Powers; and to give judiciary the power to invalidate acts of other two branches would only make judiciary supreme over the scheme of the constitution.
On the other hand, Alexander Hamilton in the Federsit Papers argued in favor of the courts power to judicial review. It is Hamilton’s argument that majority of the constituent convention members agree upon.
SOURCES OF THE POWER:
There are two sources of power of judicial review in the constitution.
(i.) The constitutional division of powers between Federal and State Government
(ii.) Three organs of State
The 2nd source is the “due process clause” of the 5th & 14th amendments along with Bill of Rights of the Constitution. The due process clause has immediately enhanced the scope of Supreme Court’s power of Judicial Review.
POWERS OF JUDICIAL REVIEW & THEIR SCOPE:
The power of judicial review has a wide scope. The powers of judicial review and their scopes can be discussed as follow:
• REVIEW OF STATE LAWS:
It is the power of Supreme Court to review the laws passed by the State Legislature. If any law passed violates the provisions of the Constitution or conflicts with the laws passed by Congress or a treaty negotiated by the President, the Supreme Court has power to declare it “Null and Void.”
However, the Supreme Court can only review a law if an aggrieved party puts forward the case. It can not deliver a judgment on its own initiative.
• REVIEW OF FEDERAL LAWS:
It is the power of Supreme Court to review & pass upon the validity of Act of Congress. According to the members of Courts, their job is to ascertain with or in contravention of the provisions of the Constitution. The Court has so far held many Congressional Legislations to be the Constitutional in whole or in part. The only recourse for the Congress, if such an opinion is handed down, is to try to frame new legislation within the limitations of the constitution.
• REVIEW OF EXECUTIVE ACTIONS:
The Federal judiciary exercises the power to review acts and actions of the executive also.
One famous example of Court’s action against Presidential order is when President H.S Truman orders his Secretary of Commerce to seize and operate most of the country’s steel mills. He sought to justify his orders on ground that it would help obtaining uninterrupted steel production for vital military purposes, especially since US was fighting Korean War. However, the orders were challenged in the Court and the Supreme Court held that the President has exceeded this constitutional powers and accordingly set asides the President’s order.
SIGNIFICANCE OF JUDICIAL REVIEW:
The merits of the power of judicial review may be summarized as follow:
• ITS EXERCISE HAS PROVED BENEFICIAL:
This power has brought uniformity in United State’s system. It has been the principle medium of uniform interpretation and application of federal Constitution, federal laws and treaties throughout the length and breadth of the nation.
It has also helped in ensuring that the constitution and laws of the Federating States are conformed to the Federal Constitution.
• A USEFUL BENEFACTOR BETWEEN CONTENDING LEGAL INTERESTS:
It is clearly been understood that American constitution system is based on principles of ‘division’ and ‘limitation’ of powers. By exercising the power of Judicial Review, the Supreme Court ensures that neither the Federal nor the State Government transgress the Constitutional limits placed upon their respective powers; also it make sure no government organ exceeds the limits of its constitutional jurisdictions.
By using this power, Supreme Court ensures that neither the Federal Government suffered from any weakness due to lack of jurisdictions nor did the interest of the Constitutional/Federating States suffer. It has been a successful balance of interests in an evolving federal political system.
It is in this sense that the Supreme Court has played the use full role of guardian of the rights and privileges of the Federal and State governments alike.
• A PROTECTOR OF THE RIGHTS OF THE INDIVIDUAL:
Under the constitution provisions regarding the rights of the individual and the ‘due process’ of the 5th and 14th amendments, the U.S Supreme Court guards the rights and privileges of the individuals.
Under the Bill of Rights, the Supreme Court has given wide meaning to personal rights, liberties and properties and guarded them by declaring various governmental laws unconstitutional and therefore inapplicable. The Court, in its judgments, has indeed had bias in favor of the private property and freedom of contract. But the bias is justified in keeping the philosophy of the American Socio-Economic Systems.
• AN INDISPENSABLE REQUISTIE OF A FEDERAL SYSTEM:
It is indispensable requisite of a federal system. This can be justified by the statement of Justice Holmes that; he could imagine a system in which the Supreme Court had no power to invalidate a National Status but could not imagine a workable system in which there was no judicial control over the federating states.
• CONFIDENCE OF PEOPLE:
The U.S judiciary over the years has given American federal system stability, coherence and flexibility in growth. This has won the confidence of the people in the U.S Supreme Court.
CRITICISM ON THE BASIS OF FIVE TO FOUR MAJORITY:
Even though Alexander Hamilton’s views regarding judicial review are widely agreed upon, there are critics following the lead of President Jefferson’s views on this power of Supreme Court.
A line of criticism against the Supreme Court is that it can declare a law unconstitutional by 5 to 4 majority i.e. 5 judges holding the law constitutional and 4 as unconstitutional. In this way a single judge can title balance one way or the other. This situation raises two points.
(i.) Should a single justice nullify the action of the President and the Congress, both of whom are the representatives of the people?
(ii.) How is it that a set of judges come to the conclusion that a law is unconstitutional and another set thinks that it is not? It would mean that the option that judges form about the constitutionality of a law is more subjective than objective. On both grounds the powers of the Court is undemocratic and therefore, ought to be terminated without delay.
COUNTER CRITICISM TO FIVE TO FOUR MAJORITY:
The criticism of 5 to 4 majority is invalid on the following grounds:
In 1st place very few laws of congress have been declared unconstitutional by a close vote of five to four.
2ndly, no statue of the Congress has been declared unconstitutional by the actions of the single judge. It would require concurrent opinion of 5 judges at the same time to declare a law unconstitutional.
3rdly, subjective opinions of the judges regarding what amounts to unconstitutionality do influence their decisions but the opinion itself is always the result of a sound and scientific under-standing of law.
CRITICISM REGARDING THE COORDINATE NATURE OF THE POWERS OF THE THREE ORGANS:
The real issue is not the controversy over the power of the judicial review on what the court should do when it finds that a law is against the spirit of the constitution, the real issue is that should the law be declared unconstitutional by Supreme Court when both Congress and the President consider it be constitutional.
The American constitution calls the three organs; the President, the Congress and the Supreme Court, as coordinate organs. Yet both the Congress and the President acquire in the Courts power of Judicial Review. This is highly criticized amongst the followers of Jefferson’s views towards powers of judicial powers.
ENCOURAGES IRRESPONSIBLE LEGISLATION:
The power of Judicial Review of the Supreme Court is also criticized for reasons of its political consequence. On the one hand, it encourages irresponsible legislation and on the other, it makes the attainment of political objectives too remote and uncertain. It makes people loose active interest in political affairs.
SUPREME COURT AS THE 3RD LEGISLATIVE CHAMBER OF THE CONGRESS:
The Supreme Court under the power of Judicial Review has not only restricted it self to determining the validity of ‘Acts of Government’ but it has also resort it self to the examination of the reasonableness of the Act. The court does not only view the process applied by the government but also the substance of the law regarding the action.
The effect of this has made Supreme Court a 3rd chamber of the Congress, sitting in judgment over what the other two chambers did.
JUDGES ARE CONSERVATIVE FOLKS:
It is also believed that judges are mostly conservative, supporting the older moral and ethics of the society over the newer views of people and government. Hence, they may pose as a challenge to a law which they regard as immoral just on their own ideologies.
In conclusion one can say that the power of Judicial Review will continue to be criticized when ever a political conventions law is declared void. However, in a liberal democratic system that U.S follows it is virtually impossible to take away power of Judicial Review from the Supreme Court.
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1. INTRODUCTION & BACK GROUND
2. FEATURES OF PARTY SYSTEM
3. PARTY ORGANIZATION
4. MINOR PARTIES
INTRODUCTION & BACK-GROUND
Political parties are group of people more or less organized, working as units and by using their political power aim at controlling the government and carrying out their policies.
Political parties and democracy go hand in hand, as an elected government is essentially party government. Political parties render a very useful service to the cause of democracy. They formulate level and organize public opinion by offering viable solutions to social, economic and political problems faced by the masses. They participate in elections and establish link between the government and people by winning or loosing the elections.
The founding fathers of the constitution were afraid of the masses and political party system. Therefore, they did not include any provisions regarding the political parties. They framed the constitution as a safeguard against the political party system by introducing Presidential system of government in order to keep the influence of political parties and masses away from the executive. However, the political parties still prevailed and grew strong. Now the political parties in U.S dominate the entire political arena by changing spirit of the constitution. The indirect election of the President has today become direct due to the presence of political parties.
It is very difficult to draw a line of differentiation between the office of the President and majority party in Congress. The President makes numerous appointments with the consultation of leaders of his party in Congress, in order to get approval by Senate.
The influence of the political parties over government does not end with the fact that President has to consult his party leaders even at the lower level. It is the party machinery, which selects candidates for various elections, operates election-campaign and brings voter to the polling stations. It is the party platform which creates public opinion in its favor.
Hence, we can say that even though the constitution vests executive power in the President and has freed him from the accountability of the Congress; on non-constitutional and indirect basis he is accountable to congress, especially to the members of his party. If he fails to satisfy party members, especially those in Congress, his approval ratings, chances of 2nd term (if he is in his 1st term) and his survival is in jeopardy.
The founding fathers of the American constitution considered political parties as detrimental to the national unity, yet the parties emerged with the promulgation of the constitution on the issue of strong Federal Government verses State Rights. Since than a two political system has emerged in American politics.
The Philadelphia convention of 1787 had split the political leaders into two major groups – one representing the large states and favoring a strong national government known as Federalists, and other anxious to preserve state autonomy known as anti-federalists. The Federalists were led by Alexander Hamilton and the anti-federalists were led by Thomas Jefferson. From 1796 to 1800, it was Federalist Party that remained in power. In 1800, however it was Thomas Jefferson, leading the anti-federalists, who was elected as President.
Later on the names of the two parties were changed. The Federalist came to be known as “Whigs” and the Anti-Federalists combined under the designation of “Democratic-Republican Party.”
At the birth of America and formation of its constitution, the Federalists were very influential party. After George Washington’s presidency ended, it was a John Adams under the affiliation of Federalists who took the American Presidency. From 1800 to 1840, the Federalists lost Presidency to Anti-Federalists which appeared under the party name of Democratic-Republicans and later became Democrats. The Federalists took Presidency again in 1840, but under the new party name known as “Whig.” W.H. Harrison was the 1st Whig President to be elected than. In 1948, Z. Taylor won Presidency for Whigs. He would be the last Whig member to be ever elected as President. After that Federalist or Whig party ceased to exist. Many of its members and elements transferred to Republicans.
- ANTI-FEDERALISTS, DEMOCRATIC-REPUBLICAN PARTY & DEMOCRATIC PARTY
The Democratic - Republican Party held office from 1800 to 1824. The party name was however changed to Democratic Party, dropping the ‘Republican’ in 1828, since than the party has been known by the same name, even today. It supported the interests of States against the Federal Government and had its roots in agriculturists and planters. Since those who owned lands, usually owned slaves as workers, the Democratic Party upheld the slavery system. This support became one of the major reasons for the American Civil War. By the end of the civil war, the party had lost the control and influence over the masses. The party made a come back under Wilson in 1913 and remained in power till 1921. From 1921 the party took place in opposition for 12 years. They again came back to power in 1933 under the leadership of Franklin Roosevelt, who held Presidential office for four terms. (F.D. Roosevelt is the only President to hold the office for more than two terms; he was cousin to Theodore (Teddy) Roosevelt, who was also a President of United States but on the Republican Party’s affiliation). After the death of F.D. Roosevelt in the middle of WW-II his vice President, H.S. Truman, continued his remaining term as President. In the next general election H.S. Truman won the Presidency under the affiliation of Democratic Party. After H.S. Truman the party lost the Presidency to Republicans. The party was again voted to power in 1960 and J.F. Kennedy took the Presidency. After the assassination of J.F Kennedy, his vice President Lyndon B. Johnson continued his remaining presidential term under the affiliation of Democratic Party. After Kennedy and Johnson, only two democrats reappeared on Presidential seat. In 1976, J.E. Carter became President, while in 1992 and again in 1996 W.J. Clinton took the designation of American President.
Unlike Democratic Party, Republicans did not arise through evolution. Many people think that Republicans evolved from the Federalists or the “Whigs.” However, that is not the case. It was a third party founded by Abraham Lincoln in 1854 and replaced the Federalists or Whigs from the American political scene. Lincoln became 16th President of USA and boosted the prestige of Republican Party to great extent. He pledged to abolish the slavery in America. By the end of Civil War, the Republicans were thoroughly entrenched in U.S politics. The Republican Party dominated the American political system for next 60 years, solely as preserver of union. From 1932-33 Democratic faces held more influence. However, in 1952 to 1960, Republican Party took over the Presidency again, under the leadership of former military General, D.D Eisenhower, who led America to victory in WW-II. But the office was immediately lost in the next general election to the Democrats as J.F.K became President. But in 1968 and 1972 Richard Nixon won Presidency under Republican affiliation. The 1980s whole decade was dominated by the Republicans as in 1980 and 1984; R.W. Reagan won Presidency as a Republican followed by his Vice-President George Bush who took Presidency in 1988 to 1992. Again, after a gap of 8 years, George Bush’s son G.W. Bush took American Presidency twice in 2000 and 2004.
The only member to win American Presidency as an independent candidate was George Washington. He took Presidency in 1789 and again in 1792, both times unopposed. Thus he became the 1st as well as 2nd President of USA. He refused the offer of 3rd term in the office. Although independent, he is believed to be more leaning towards the Federalists. After his stepping down, his vice President John Adams became affiliated with Federalists and won the Presidency.
FEATURES OF PARTY SYSTEM
Following are the main features of American political party system:
1. Two Party System
2. No different Ideological Basis
3. Not Identical
4. Decentralized Parties
6. Spoil System
1. TWO-PARTY SYSTEM:
Although it is not some sort of a law in U.S to only have two parties, yet strong two party systems has emerged since the creation of American Federation. Almost all the Presidential elections has witnessed clash between the candidates of Republican Party and the Democratic Party, hence the political power has either remain in hands of Republicans or Democrats.
Some minor parties also emerged in US, but could not put any impact upon American votes. No small party member has ever taken a seat in the White House.
2. NO DIFFERENT IDEOLOGICAL BASIS:
Both Democratic and Republican party have no different ideological basis, they just adjust their policies to current circumstances. They cannot be classified as ‘Right and/or ‘Left’ and ‘Conservative and/or Progressive’. They both are conservative and progressive having no fundamental doctrinal differences. The core program and policies of both parties are usually similar and identical. During cold war both parties stood against communist ideologies to protect their capitalist ideology and they still continue to do so. Their foreign policies also don’t differ much either.
In recent years Democratic Party seems to have adopted more liberal attitude than Republicans. However, the chances of this liberal attitude to turn into a policy, when democrats take power, are grim.
3. NOT IDENTICAL:
In spite of there being no difference in their ideologies and organization, both parties are not identical. Political leaders of respective parties make policy statements which differ from each other in general.
With regard of Internal policies, the Republican are usually said to be the moral conservative and stand for; decentralization, State’s rights, interests of farmers and no-State interference in the economic life of nation. On the other hand, Democrats emphasize upon a strong Federal Government, Pro-Labour policies, Welfare of State, and no-discrimination against the Negroes.
With regard of Foreign Policy, the Republicans stand for isolation; while Democrats stand for internationalism.
4. DECENTALISED PARTIES:
The main job of political parties in American is to choose candidates for Presidency, to campaign for their respective candidates and stimulate the public interest in governmental affairs. The national committee exercises very little disciplinary control over their members. Although, both the parties are formed of people with varying attitudes and interests, yet the party discipline is not rigid and is decentralized.
Both the parties of America believe in regionalism and are dominated by the local bosses. The local leaders decide on who will get the party tickets in the elections. They finance the party machine in their States or areas. There is very little central control upon local units of these parties. All the local party units are controlled by local leaders. There are States which are completely under the control of either Democratic or Republican Party. They are further distinguished by the economic interests that dominate them. The industrial and commercial sectors are with Republicans, while the planters and farmers always support the Democrats.
6. SPOIL SYSTEM
Both parties believe strongly in the spoil system. When one party comes to power, it dismisses all the employees appointed by the previous party and replaces them with their own.
The party organization has two distinct parts; the Permanent Organization and the Periodic Organization. Both forms of organizations are further divided into various forms of committees and convention. They can be explained as followed:
(i.) PERMANENT PARTY ORGANIZATION:
The permanent party organization includes the following tiers:--
(a.) NATIONAL COMMITTEE:
At the apex of each party stands its National Committee, which consists of about 100 members. It has a chairman nominated by the Presidential candidate and elected by the committee. He becomes the campaign manager and directs national head quarters. He is assisted by an Executive Committee and Campaign Committee to conduct the election campaign. When the party wins the election, the chairman usually becomes the post-master general in the Presidential Cabinet.
(b.) CAMPAIGN COMMITEES:
A senatorial campaign committee and a congressional campaign committee are maintained by each party to direct the election campaign of respective party to direct the election campaign of respective house.
The campaign committee functions chiefly during campaign, trying to maintain and increase the seats held by the respective parties in the Senate and the House of Representatives. Each committee has a small number of permanent staff. The committees compile the voting records of sitting members analyze political possibilities in the various states and districts and prepare it self for elections of both houses.
(c.) STATE CENTRAL COMMITTEES:
Each party has a central committee in each state; which direct the campaigns for states officers and senator-ship and mobilizes state effort. The state committeemen are chosen by election or by nomination representing the legislative districts and sub-divisions. Its membership varies from State to State.
Most State committees are not assigned with significant powers regarding the convention or primary nomination, but they delegate powers and duties to an executive group which makes the effective decisions. Some State committees have authority to fill vacancies occurring after convention.
Some times the chairmen of the State Committee are political figures of importance, more commonly they are stronger men of their respective groups.
(d.) COUNTY COMMITTEES:
Each county has separate committee of each party; which coordinate the work of all lesser bodies and deals in important matters with State Central Committees. There are over 3,000 counties; virtually all are organized by both parties.
Country Organization stands between state and local levels. They are setup in state senatorial representative, congressional, and state judicial districts. Their position varies from State to State and from urban to rural area, in their respective party’s structure.
(e.) LOCAL ORGANIZATION:
The local organization is established in each precinct or polling district which is the basic units of the party organization. Its size is determined by the number of voters (from 100 to 500 voters are included in the average precinct). The chairman of the party precinct is responsible for party’s direct contacts with voters and provides his personal service to them.
In urban areas, ward committees are usually next level of organization. The committee coordinates the work of precinct units and deals with local political problems, especially with municipal-council politics. A city committee oversees the ward and precinct levels and attends to the municipal problems.
In village areas, village-committee brings together precinct representatives and plan party activities in relation to local governments.
(ii.) PERIODIC ORGANIZATION:
The organization consists of nominating system for selecting candidates for public office by a party. At 1st convention system was adopted for selecting the candidates. This was criticized for its unrepresentative nature and corrupt practices. Thus the convention system was replaced by the direct selection method. However, the convention system has been retained for the nomination of Presidential Candidates by both the parties.
Some well known tiers of periodic organization are:
(a.) THE DIRECT PRIMARY:
It is a method by which registered voters make nominations for the candidates for the forth-coming general elections. There are two methods of direct primary periodic organization:
• AN OPEN PRIMARY:
In this, the voters may participate in nomination and he is allowed to decide in which party’s primary he wishes to vote irrespective of his affiliation with certain party.
• THE CLOSED PRIMARY:
In this each voter may participate, only in the nominations of candidates for the party, with which he is affiliated.
DRAW BACKS OF DIRECT PRIMARY METHOD
In spite of democratic nature of direct primary system, there are some serious draw backs of it. Example:
1. It undermines party loyalty and destroys party organization and unity.
2. A man may become the candidate of a party without subscribing to its principles and programs.
3. It is expensive system.
4. It suits only the urban areas, where the voters can easily assemble for polling but in the rural areas it is impracticable.
5. The party bosses have not yet been eliminated by the direct primary system.
(b.) NATIONAL PARTY CONVENTIONS:
The main function of this convention is to nominate candidates for presidency and vice-presidency; usually done by polling methods. If a candidate can not acquire the required number of votes in the 1st attempt, than a 2nd polling is held. In the vice-presidential contest, the presidential nominee can play important role, as he chooses his own running mate.
(c.) SENATORIAL AND CONGRESSIONAL COMPAIGN COMITTEES:
The senatorial committee is chosen by the senators; while the congressional campaign committees are chosen by the representatives of the party concerned. These committees work day and night to insure the victory of their candidates. They manage funds and speakers for their party.
A few minor parties also exist in USA and their numbers vary from time to time. These minor parties have no importance in the political arena of US. Many times it so happens that either these minor parties merge with major political parties or they vanish from the political scene of the country as they are not capable of facing the challenges posed by major political parties and players. Many minor parties usually come to existence for a certain purpose and issue and when the issue is resolved and their purpose is served, the ceased to exist. Once Prohibition Party existed, which advocated for the prohibition of the manufacture and import of liquors. There also used to be Socialist Labour Party. Today there is also a communist party, but has no voice in the legislature.
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Dear member Friends;
Hi, I am back. Sorry couldnt up date the notes, but now I have time & have started my studies on British Constitution. Insha Allah you will start recieveing the British Constitution in few days time.
Sorry couldnt provide notes to 2006 candidates, but there is always a next time i.e. 2007. All 2007 potential candidates can take advantage of my notess. Even those who are just seeking knowledge instead of giving exams.
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Dear Mr. Ali, when notes for British Constitution would be available?