Assess the view that the US Constitution often ensures limited government

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1 1 Assess the view that the US Constitution often ensures limited government Written by Matthew Hider Jan When the Founding Fathers met together at the Philadelphia convention in 1787, and wrote the constitution of the United States, they decided upon 4 main provisions; representative and accountable government, the separation of powers between 3 branches of government, a federal structure of government, and finally limited government 1. The Founding Fathers yearned for limited government due to their experiences with the British government, one that James Otis described as being tyrannical 2. They had already gone to war with the British government, over what they saw as an infringement of their rights, and so they were determined to create a government that was restricted by law from infringing citizen s civil liberties. What is limited government? To answer this question, it is important to know what limited government is. Harris defines limited government as being a government that has limitations placed upon it to avoid concentrated power and potential tyranny 3. There are 4 main methods written into the US constitution designed to prevent this; the separation of powers, checks and balances, federalism and entrenched rights protecting the liberties of citizens through the Bill of Rights, as well as other articles within the constitution. Each of these methods will be assessed as to how well they have ensured that government s power is limited. Separation of Powers The doctrine of Separation of Powers originated from Montesquieu, who in his book The Spirit of the Laws argued that a separation of powers was essential to avoid tyranny 4. The Doctrine argued that to prevent tyrannical governments, political power had to be distributed horizontally across 3 branches an executive, a legislature, and a judiciary, all with equal power. The Founding fathers implemented this, through the president, Congress, and the US Court system with a Supreme Court, which holds ultimate judicial power. This separation of powers was designed to limit government, as each branch would carry out different functions of government, so no branch of government has total control the way that a dictatorship would. Each of these branches has a number of different functions. The executive has the power to execute the law, be it an act passed by Congress, or a ruling of the court. This power is laid down in section 3 of Article 2 of the US constitution, which says [the president] will take Care that the Laws be faithfully executed 5. Congress has legislative power, under section 1 of Article 1, and also has the power of the purse, under section 8 of Article 1. Finally, the judiciary rules on the constitutional legality of legislation passed by Congress and executive 1 AQA Government & Politics - The Government of the USA, Colleen Harris, page 9, Phillip Allan updates 2 US Government & Politics, Anthony J. Bennett, Page 4, 3 rd edition 3 Colleen Harris, Op.Cit Page 9 4 Anthony Bennett, Op.Cit, Page 13 5 US Constitution, Article 2, Section 3

2 2 orders, under section 3 of Article 3 of the constitution. The power to limit government through the separation of powers can be demonstrated in the case of Brown v Board of Education, in The Supreme Court ruled that state laws establishing separate schools for black and white students, were unconstitutional 6. The Supreme Court declared this illegal, but were powerless to do anything else. Only the executive has the power to have the laws enforced, and the executive needs funding from congress to help enact the decision. Without the will of the other branches, nothing will get done, therefore limiting the government, as it needs all three branches to agree to have anything done. One example of where the President has enforced a decision of the Supreme court was in 1957, when President Eisenhower deployed 101 st Airborne division to Little Rock Central high school, in order to follow the decision of Brown v Board of education, following Arkansas s Governor Orval Faubus call for the state National guard to block black student s entry to the school 7.This demonstrates that no one branch can do anything by itself, and therefore, the separation of powers, upheld by the constitution, means that government is limited in what it can do. The constitution has allowed some cases where the president has not followed a decision of the Court. This happened in 1942, when a group of German saboteurs were landed in Florida and Long Island. They were all picked up within 2 weeks. Roosevelt brought in the attorney general and said: They will be tried in a military court, they will be executed, it should happen within 3 weeks, and tell the Supreme Court if they issue a writ of habeus corpus (court summons), I will not honor, and therefore they should not issue it. I am the commander in chief in wartime. They aren t. 8 Situations where one branch has ignored another are rare, and so it is safe to say that the separation of powers almost always ensures limited government. Checks and balances Checks and balances enforce the separation of powers. Whilst the separation of powers stops any one branch from exercising any powers it likes, it is the checks and balances that ensure all three branches have equal power. Each branch has the power to limit another branch of government. Checks by the executive The President has the power to veto bills passed by Congress 9. Only 7 presidents have not exercised the power to veto bills passed by Congress, James Garfield being the last president to choose not to exercise this power, in /11. Before a bill becomes law, the President must sign it, or veto it. When vetoed, the President must send it back to Congress with his objections. Congress can override it by a 2/3 majority in each house, and then it automatically becomes law, however this can be very hard to achieve. The executive has exercised this power 2564 times, and only 110 times has Congress overruled this veto 12. This power to veto by the president substantially limits the president, shown by the fact that over the past 200 years, the executive alone has prevented 2454 bills from being passed. This ability is written into the constitution in Article 1, Section 7 of the Constitution, 6 Separation of powers in practice, Thomas Campbell, page Newt Gingrich, CBS, Face the Nation, October 2011, at 9 Anthony Bennett, Op.Cit, page Presidential Vetoes , Compiled by the Senate Library, February Ibid

3 3 and means that the constitution has often ensured limited government, 110 times out 2564 to be exact, which is what the Framers of the constitution intended. The executive also holds two checks on the judiciary. The first is the ability to appoint judges to the Supreme Court 13. Appointments to the Supreme Court are very political appointments. The constitution can be fairly vague in parts, and therefore, a judge s political position will likely influence their decision, meaning that the executive can have a big influence on decisions of the courts. However, this does not necessarily ensure limited government, and if anything, it puts the government more at risk of tyranny, since the executive is appointing the judiciary, and having a big influence over how the court operates, which goes against the separation of powers. Luckily then, that one check the legislature has over the executive, is that the Senate must confirm appointments to the Courts made by the President. In 1987, Reagan appointed Robert Bork to the Supreme Court, however the Senate rejected his nomination. The judge he would be replacing was a moderate, and was often referred to as a swing vote. Bork was a conservative, and so to be appointed would mean the court would be tilted to the right. Reagan withdrew the nomination 14. The second check is the power to pardon. The executive can withdraw any charges to a person. This means that if a person was perhaps unfairly convicted of an offence, or given to harsh a punishment, the president can withdraw this conviction, limiting the power of the judiciary. On the other hand though, it means that the president can effectively play the role of the courts, in letting someone off their crimes. Checks by the legislature One of the major limitations that Congress can exercise on the Executive is through the aforementioned power of the purse. Any money that the president wants to spend on his policies must be voted for by Congress. If congress does not want the president to enforce these policies, they can simply deny him the money, therefore limiting what he can do. One example where Congress has used this power to limit the power of the executive was in the Foreign Assistance Act of 1974, which eliminated aid and military funding for South Vietnam, subsequently ending the Vietnam War 15. A further check that Congress has on the President is the power to declare war. Although the President is said to be limited in domestic policy, but not so much foreign policy 16, it is Congress that decides whether to send troops into hostile situations. This means that the President cannot wage war on any country he likes, despite his Commander- in- chief status bestowed upon him by the constitution. Additionally, he must seek the consent of the Senate when making treaties, which requires two thirds of the Senators to agree. In 1999, the Senate rejected the Comprehensive Test Ban Treaty 17. This check significantly limits the power of the president, as he cannot go to war, or sign treaties without permission from Congress first. Congress has the power to investigate both members of the executive branch, as well as members of the judiciary. The investigation may lead to impeachment, whereby the person being investigated is accused of unlawful activity. A majority of members of the House of Representatives are needed to impeach a member of the executive or judiciary. The senate then run the trial. If found to have been 13 Anthony Bennett, Op.Cit, page Politics Review, Vol7 No.1, September 1997, Dean McSweeney, Page US Government and Politics, Andy Williams, Heinemann, 2 nd Edition, Page Anthony Bennett, Op.Cit, Page Anthony Bennett, Op.Cit, Page 18

4 4 involved in criminal activity by a two thirds majority, the accused can be removed from office. Only two presidents have been impeached, Andrew Johnson and Bill Clinton. Both were acquitted by the Senate. This power of Congress stops any members of the judiciary or executive from breaking the law, or abusing their powers, which in turn ensures limited government. Checks by the Judiciary The most significant check that the judiciary has is the power of judicial review. This power allows the court to declare Acts of Congress unconstitutional, and therefore null and void 18. In 1997, the Supreme Court declared the Communications Decency Act unconstitutional, following the case of Reno v American Civil Liberties Union. In Clinton v New York City (1998), it declared the Line Item Veto Act unconstitutional. The judiciary can also declare actions of any member of the executive branch to be unconstitutional. In Youngstown Sheet & Tube Company v Sawyer (1952), the Supreme Court ordered President Truman s Commerce secretary to remove federal troops whom he had sent into steel mills to break an industry wide strike 19. This power of the judiciary limits the power of Congress, as it upholds the constitution, and it limits what laws Congress can pass, and what the Executive branch can order. Federalism Federalism is a theory of government by which political power is divided between a national government and state governments, each having their own area of substantive jurisdiction 20. If the separation of powers is a horizontal division of powers, federalism is a vertical division of powers. There was originally little want for a nationalised government states wanted to govern themselves, from the 1780 s to the 1920 s, dual- federalism took place, where the national government was weak, their role limited to matters concerning money, war and peace 21. The states had most of the political power, governing themselves. Grodzins labelled this era as being layer- cake federalism, where the federal and state governments had distinct areas of responsibility 22. The next stage of federalism was cooperative federalism, which came about after the Wall Street crash, and the Great Depression. State governments could no longer solve all the problems themselves, and so looked to the federal government to help them. The federal government spent vast amounts of money during this period, and became involved in a number of policy areas where only the state governments had previously operated. This federalism was described as marble cake by Grodzins 23. The final three decades of the 20 th century saw New Federalism as Nixon called it. This period saw the size of the federal government reduced, with power given back to the states. The fact that the size of the federal government can grow vastly, and then shrink, suggests that federalism is not a very effective means of limiting government, since the national government grew vastly in size and influence, far greater than any of the Founding Fathers of the constitution wanted. However, the constitution guarantees the federal government and state government the same amount of power as it did when it was written, apart from the enactment of the 16 th amendment, which was passed 18 Anthony Bennett, Op.Cit, Page Ibid 20 Anthony Bennett, Op.Cit, Page Anthony Bennett, Op.Cit, Page Ibid 23 Ibid

5 5 with the consent of the states. The federal government has grown in size and power, but it has no more power over the states than it did 200 years ago. Therefore, the federal government cannot pass any domestic law it likes, as under the 10 th amendment, any powers not delegated to the federal government are reserved to the states. The state governments are also limited, as they must follow laws passed by the federal government under the federal government s jurisdiction, as well as follow Supreme Court rulings and executive orders. Therefore, federalism limits both the federal government, and the state government, as the federal government cannot pass any law it likes, only areas where power has been given to them under the constitution, and states cannot pass any law it likes if the federal government has been given power to deal with that area of policy. Bill of Rights The final device by the constitution used to limit the government is the Bill of Rights. They are the first 10 amendments to the constitution, ratified by the states in 1791, and are guaranteed constitutional rights, entrenched in the constitution 24. Although called the Bill of Rights, these 10 amendments are essentially a bill of limits, because the amendments limit the powers of the national government over the rights and liberties of individuals. Originally, the framers of the constitution thought a bill of rights was unnecessary. This was because they felt that specific guarantees of fundamental rights were unnecessary because the Constitution already included certain prohibitions 25. They also believed that there was a danger in enumerating specific civil liberties, in that future governments might assume that rights that were not listed in the bill of rights did not exist. The framers didn t want a federal government that could do anything that wasn t explicitly prohibited. The ten amendments all place limitations on the federal government. The first amendment for example, stops Congress from passing any law denying the people freedom of religion, the press, speech and assembly. The 5 th amendment prevents the government from removing people s freedoms without due process of the law. The 10 th amendment prevents the federal government from assuming the rights not explicitly mentioned in the Constitution, and gives them to the states. This Bill of Rights clearly limits the power of government, as it is a list of 10 fairly broad rules, some more than others, which says what the government cannot do, and gives the people more freedoms and rights. However, there have been situations where the Bill of Rights has not been upheld. During the Second World War, Japanese Americans were imprisoned without trial, a clear violation of the 6 th amendment. The Patriot Act, passed in 2001, which was in direct response to the 9/11 attacks, was anti- terrorist legislation that allowed measures such as wire- tapping and electronic surveillance, and is a possible violation of the 4 th amendment, which guarantees freedom from unreasonable searches and seizures of persons and property. Guantanamo bay, which detains prisoners without trial is a violation of the 5 th amendment. This demonstrates that the Bill of Rights does not fully limit government; however it does a great deal to limit government. 24 Colleen Harris, Op.Cit, Page American government and politics today : The Essentials, Barbara Bardes, Mack Shelley, Steffen Schmidt, edition, Cengage learning, page 52

6 6 Conclusion The US constitution has many safeguards to make the government as limited in its power as possible. The separation of powers, the checks and balances between branches, the federal system the US employs, and the Bill of Rights all are designed to limit government. None of these increase the power of government, and all of them do a good job at limiting government power, shown by the fact that over the last 200 years, there have been only a few cases where the government has gone past the power that the constitution has given it. Therefore, the view that the US constitution often ensures limited government is an accurate one, as it does, most of the time, limit what the government can do. Bibliography US Government & Politics, Anthony J. Bennett, Philip Allan Updates, 3 rd edition AQA Government & Politics, The Government of the USA, Colleen Harris, Philip Allan Updates, 2012 US Government & Politics, Andy Williams, Heinemann, Second Edition James Madison and the Future of Limited Government, John Curtis Samples, Cato Institute, 2002 Separation of Powers: Does it still work?, Robert A. Goldwin, Art Kaufman, American Enterprise Institute, 1986 American Government and Politics Today: The Essentials, Barbara A. Bardes, Mack C. Shelley, Steffen W. Schmidt, Cengage Learning, 2011 Politics Review, Vol7 Number 1, September 1997, Dean McSweeney, Page 18 CBS, Face the Nation, aired October 2011, available at: Presidential Vetoes , Compiled by the Senate Library, February US Constitution