Keeping the Republic. Christine Barbour

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СКАЧАТЬ president, a single executive, would serve an unlimited number of four-year terms. (A constitutional amendment in 1951 limited the president to two elected terms.) But the president would be chosen neither by Congress nor directly by the people. Instead, the Constitution provides for the president’s selection by an intermediary body called the Electoral College. Citizens vote not for the presidential candidates but for a slate of electors, who in turn cast their votes for the candidates about six weeks after the general election. The founders believed that this procedure would ensure a president elected by well-informed delegates who, having no other lawmaking power, could not be bribed or otherwise influenced by candidates. We say more about how this works in Chapter 12, on elections.

      Article II of the Constitution establishes the executive branch. The four sections of that article make the following provisions:

       Section 1 sets out the four-year term and the manner of election (that is, the details of the Electoral College). It also provides for the qualifications for office: that the president must be a natural-born citizen of the United States, at least thirty-five years old, and a resident of the United States for at least fourteen years. The vice president serves if the president cannot, and Congress can make laws about succession if the vice president is incapacitated.

       Section 2 establishes the powers of the chief executive. The president is commander-in-chief of the armed forces and of the state militias when they are serving the nation, and he has the power to grant pardons for offenses against the United States. With the advice and consent of two-thirds of the Senate, the president can make treaties, and with a simple majority vote of the Senate, the president can appoint ambassadors, ministers, consuls, Supreme Court justices, and other U.S. officials whose appointments are not otherwise provided for.

       Section 3 says that the president will periodically tell Congress how the country is doing (the State of the Union address given every January) and will propose to them those measures that he thinks appropriate and necessary. Under extraordinary circumstances, the president can call Congress into session or, if the two houses of Congress cannot agree on when to end their sessions, can adjourn them. The president also receives ambassadors and public officials, executes the laws, and commissions all military officers of the United States.

       Section 4 specifies that the president, vice president, and other civil officers of the United States (such as Supreme Court justices) can be impeached, tried, and convicted for “Treason, Bribery, or other high Crimes and Misdemeanors.”

      The Norms

      The founders knew what kind of man they wanted to hold the presidency; George Washington was right in front of them, a model executive. But they left that description unspoken. Implied by the rules is the norm of independence—a separate executive and legislature make it difficult to ram through legislation and the Constitution strictly guards against any allegiance to another country (hence the requirement of natural-born citizenship and the complicated emoluments clause, which forbids the president from taking expensive gifts from another country). They also wanted the president to demonstrate dignity. The office combines the jobs of head of government (the political role) and head of state (the symbolic role). Truth to tell, they never imagined a government as large and complex as ours is today, so the head-of-government role didn’t loom as large. But the head-of-state role, representing the country as a whole, was key. So the founders implied the norm of unity, of representing the entire country. Finally, it is clear from the impeachment powers of Congress and from limits such as the emoluments clause that the founders had created a limited executive who could be removed from office by Congress for “Treason, Bribery, or other high Crimes and Misdemeanors.” So another executive norm is that the president is bound by the rule of law.

      The Judicial Branch

      Judicial power is the power to interpret the laws and to judge whether they have been broken. Naturally, by establishing how a given law is to be understood, the courts (the agents of judicial power) end up making law as well. Our constitutional provisions for the establishment of the judiciary are brief and vague; much of the American federal judiciary under the Supreme Court is left to Congress to arrange. But the founders left plenty of clues as to how they felt about judicial power in their debates and their writings, particularly in The Federalist Papers, a series of newspaper editorials written to encourage people to support and vote for the new Constitution.

      For instance, the practice of judicial review is introduced through the back door, first mentioned by Hamilton in Federalist No. 78 and then institutionalized by the Supreme Court itself with Chief Justice John Marshall’s 1803 ruling in Marbury v. Madison, a dispute over presidential appointments. Judicial review allows the Supreme Court to rule that an act of Congress or the executive branch (or of a state or local government) is unconstitutional—that is, that it runs afoul of constitutional principles. This review process is not an automatic part of lawmaking; the Court does not examine every law that Congress passes or every executive order to be sure that it does not violate the Constitution. Rather, if an individual or a group challenges a law as unjust or unconstitutional, and if it is appealed all the way to the Supreme Court, the justices may decide to rule on it.

      judicial power the power to interpret laws and judge whether a law has been broken

      The Rules

      This remarkable grant of the power to nullify legislation to what Hamilton called the “least dangerous” branch is not in the Constitution. In Federalist No. 78, however, Hamilton argued that it was consistent with the Constitution. In response to critics who objected that such a practice would place the unelected Court in a superior position to the elected representatives of the people, Hamilton wrote that, on the contrary, it raised the people, as authors of the Constitution, over the government as a whole. Thus judicial review enhanced democracy rather than diminished it.

      In 1803 Marshall agreed. As the nation’s highest law, the Constitution sets the limits on what is acceptable legislation. As the interpreter of the Constitution, the Supreme Court must determine when laws fall outside those limits. It is interesting to note that this gigantic grant of power to the Court was made by the Court itself and remains unchallenged by the other branches. It is ironic that this sort of empire building, which the founders hoped to avoid, appears in the branch that they took the least care to safeguard. We return to Marbury v. Madison and judicial review in Chapter 9, on the court system.

      Article III of the Constitution is very short. It says that the judicial power of the United States is to be “vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish,” and that judges serve as long as they demonstrate “good behavior.” It also explains that the Supreme Court has original jurisdiction in some types of cases and appellate jurisdiction in others. That is, in some cases the Supreme Court is the only court that can rule. Much more often, however, inferior courts try cases, but their rulings can be appealed to the Supreme Court. Article III provides for jury trials in all criminal cases except impeachment, and it defines the practice of and punishment for acts of treason. Because the Constitution is relatively silent on the role of the courts in America, that role has been left to Congress and, in some cases, the courts themselves to define.

      The Norms

      It’s a little more difficult to make inferences about the judiciary because the founders didn’t spell out the details in the Constitution. They wanted a judiciary to have independence from political and public influence, hence the grant of lifetime tenure. And it’s pretty СКАЧАТЬ