Constitutional Issues

AP Government

Constitutional Issues I. Ideas and principles II. Separation of power III. Federalism IV. Types of Democracy

Baron von Montesquieu Montesquieu is among the greatest philosophers of liberalism, but his is what Shklar has called "a liberalism of fear" (Shklar, Montesquieu, p. 89). According to Montesquieu, political liberty is "a tranquillity of mind arising from the opinion each person has of his safety". Liberty is not the freedom to do whatever we want: if we have the freedom to harm others, for instance, others will also have the freedom to harm us, and we will have no confidence in our own safety. Liberty involves living under laws that protect us from harm while leaving us free to do as much as possible, and that enable us to feel the greatest possible confidence that if we obey those laws, the power of the state will not be directed against us. If it is to provide its citizens with the greatest possible liberty, a government must have certain features. First, since "constant experience shows us that every man invested with power is apt to abuse it ... it is necessary from the very nature of things that power should be a check to power". This is achieved through the separation of the executive, legislative, and judicial powers of government. If different persons or bodies exercise these powers, then each can check the others if they try to abuse their powers. But if one person or body holds several or all of these powers, then nothing prevents that person or body from acting tyrannically; and the people will have no confidence in their own security. Certain arrangements make it easier for the three powers to check one another. Montesquieu argues that the legislative power alone should have the power to tax, since it can then deprive the executive of funding if the latter attempts to impose its will arbitrarily. Likewise, the executive power should have the right to veto acts of the legislature, and the legislature should be composed of two houses, each of which can prevent acts of the other from becoming law. The judiciary should be independent of both the legislature and the executive, and should restrict itself to applying the laws to particular cases in a fixed and consistent manner, so that "the judicial power, so terrible to mankind, ... becomes, as it were, invisible", and people "fear the office, but not the magistrate". Liberty also requires that the laws concern only threats to public order and security, since such laws will protect us from harm while leaving us free to do as many other things as possible. Thus, for instance, the laws should not concern offenses against God, since He does not require their protection. They should not prohibit what they do not need to prohibit: "all punishment which is not derived from necessity is tyrannical. The law is not a mere act of power; things in their own nature indifferent are not within its province". The laws should be constructed to make it as easy as possible for citizens to protect themselves from punishment by not committing crimes. They should not be vague, since if they were, we might never be sure whether or not some particular action was a crime. Nor should they prohibit things we might do inadvertently, like bumping into a statue of the emperor, or involuntarily, like doubting the wisdom of one of his decrees; if such actions were crimes, no amount of effort to abide by the laws of our country would justify confidence that we would succeed, and therefore we could never feel safe from criminal prosecution. Finally, the laws should make it as easy as possible for an innocent person to prove his or her innocence. They should concern outward conduct, not (for instance) our thoughts and dreams, since while we can try to prove that we did not perform some action, we cannot prove that we never had some thought. The laws should not criminalize conduct that is inherently hard to prove, like witchcraft; and lawmakers should be cautious when dealing with crimes like sodomy, which are typically not carried out in the presence of several witnesses, lest they "open a very wide door to calumny". Montesquieu's emphasis on the connection between liberty and the details of the criminal law were unusual among his contemporaries, and inspired such later legal reformers as Cesare Beccaria.

John Locke Locke's views on government, as the title will tell, are expressed in his work Two Treatises of Government. In summary, with this work, Locke defended the proposition that government rests on popular consent and rebellion is permissible when government subverts the ends (the protection of life, liberty, and property) for which it is established. Thomas Hobbes The Laws of Nature and the Social Contract Hobbes thinks the state of nature is something we ought to avoid, at any cost except our own self- preservation (this being our ‘right of nature,’ as we saw above). But what sort of ‘ought’ is this? There are two basic ways of interpreting Hobbes here. It might be a counsel of prudence: avoid the state of nature, if you’re concerned to avoid violent death. In this case Hobbes’s advice only applies to us (i) if we agree that violent death is what we should fear most and should therefore avoid; and (ii) if we agree with Hobbes that only an unaccountable sovereign stands between human beings and the state of nature. This line of thought fits well with an egoistic reading of Hobbes, but we’ll see that it faces serious problems. The other way of interpreting Hobbes is not without problems either. This takes Hobbes to be saying that we ought, morally speaking, to avoid the state of nature. We have a duty to do what we can to avoid this situation arising, and a duty to end it, if at all possible. Hobbes often makes his view clear, that we have such moral obligations. But then two difficult questions arise: Why these obligations? And why are they obligatory? Hobbes frames the issues in terms of an older vocabulary, using the idea of natural law that many ancient and medieval philosophers had relied on. Like them, he thinks that human reason can discern some eternal principles to govern our conduct. These principles are independent of (though also complementary to) whatever moral instruction we might get from God or religion. In other words, they are laws given by nature rather than revealed by God. But Hobbes makes radical changes to the content of these so-called laws of nature. In particular, he doesn’t think that natural law provides any scope whatsoever to criticize or disobey the actual laws made by a government. He thus disagrees with those Protestants who thought that religious conscience might sanction disobedience of ‘immoral’ laws, and with Catholics who thought that the commandments of the Pope have primacy over those of national political authorities. Although he sets out nineteen laws of nature, it is the first two that are politically crucial. A third, that stresses the important of keeping to contracts we have entered into, is important in Hobbes’s moral justifications of obedience to the sovereign. (The remaining sixteen can be quite simply encapsulated in the formula, ‘do as you would be done by.’ While the details are important for scholars of Hobbes, they do not affect the overall theory and will be ignored here.) The first law reads as follows: Every man ought to endeavour peace, as far as he has hope of obtaining it, and when he cannot obtain it, that he may seek and use all helps and advantages of war. (Leviathan, xiv.4) This repeats the points we have already seen about our ‘right of nature,’ so long as peace does not appear to be a realistic prospect. The second law of nature is more complicated: That a man be willing, when others are so too, as far-forth as for peace and defence of himself he shall think it necessary, to lay down this right to all things, and be contented with so much liberty against other men, as he would allow other men against himself. (Leviathan, xiv.5) What Hobbes tries to tackle here is the transition from the state of nature to civil society. But how he does this is misleading and has generated much confusion and disagreement. The way that Hobbes describes this second law of nature makes it look as if we should all put down our weapons, give up (much of) our ‘right of nature,’ and jointly authorize a sovereign who will tell us what is permitted and punish us if we don’t obey. But the problem is obvious. If the state of nature is anything like as bad as Hobbes has argued, then there’s just no way people could ever make an agreement like this or put it into practice. At the end of Leviathan, Hobbes seems to concede this point, saying ‘there is scarce a commonwealth in the world whose beginnings can in conscience be justified’ (‘Review and Conclusion,’ 8). That is: governments have invariably been foisted upon people by force and fraud, not by collective agreement. But Hobbes means to defend every existing government that is powerful enough to secure peace among its subjects – not just a mythical government that’s been created by a peaceful contract out of a state of nature. His basic claim is that we should behave as if we had voluntarily entered into such a contract with everyone else in our society – everyone else, that is, except the sovereign authority. In Hobbes’s myth of the social contract, everyone except the person or group who will wield sovereign power lays down their ‘right to all things.’ They agree to limit drastically their right of nature, retaining only a right to defend their lives in case of immediate threat. (How limited this right of nature becomes in civil society has caused much dispute, because deciding what is an immediate threat is a question of judgment. It certainly permits us to fight back if the sovereign tries to kill us. But what if the sovereign conscripts us as soldiers? What if the sovereign looks weak and we doubt whether he can continue to secure peace…?) The sovereign, however, retains his (or her, or their) right of nature, which we have seen is effectively a right to all things – to decide what everyone else should do, to decide the rules of property, to judge disputes and so on. Hobbes concedes that there are moral limits on what sovereigns should do (God might call a sovereign to account). However, since in any case of dispute the sovereign is the only rightful judge – on this earth, that is – those moral limits make no practical difference. In every moral and political matter, the decisive question for Hobbes is always: who is to judge? As we have seen, in the state of nature, each of us is judge in our own cause, part of the reason why Hobbes thinks it is inevitably a state of war. Once civil society exists, the only rightful judge is the sovereign.

Separation of Powers The American Example The United States Constitution is deliberately inefficient. The Separation of Powers devised by the framers of the Constitution was designed to do one primary thing: to prevent the majority from ruling with an iron fist. Based on their experience, the framers shied away from giving any branch of the new government too much power. The separation of powers provides a system of shared power known as Checks and Balances. Three branches are created in the Constitution. The Legislative, composed of the House and Senate, is set up in Article 1. The Executive, composed of the President, Vice-President, and the Departments, is set up in Article 2. The Judicial, composed of the federal courts and the Supreme Court, is set up in Article 3. Each of these branches has certain powers, and each of these powers is limited, or checked, by another branch. For example, the President appoints judges and departmental secretaries. But these appointments must be approved by the Senate. The Congress can pass a law, but the President can veto it. The Supreme Court can rule a law to be unconstitutional, but the Congress, with the States, can amend the Constitution. All of these checks and balances, however, are inefficient. But that's by design rather than by accident. By forcing the various branches to be accountable to the others, no one branch can usurp enough power to become dominant. The following are the powers of the Executive: veto power over all bills; appointment of judges and other officials; makes treaties; ensures all laws are carried out; commander in chief of the military; pardon power. The checks can be found on the Checks and Balances Page. The following are the powers of the Legislature: Passes all federal laws; establishes all lower federal courts; can override a Presidential veto; can impeach the President. The checks can be found on the Checks and Balances Page. The following are the powers of the Judiciary: the power to try federal cases and interpret the laws of the nation in those cases; the power to declare any law or executive act unconstitutional. The checks can be found on the Checks and Balances Page. A historical perspective Historically, the concept of Separation of Powers dates back as far as ancient Greece. The concepts were refined by contemporaries of the Framers, and those refinements influenced the establishment of the three branches in the Constitution. Aristotle favored a mixed government composed of monarchy, aristocracy, and democracy, seeing none as ideal, but a mix of the three useful by combining the best aspects of each. In his 1656 Oceana, James Harrington brought these ideas up-to-date and proposed systems based on the separation of power. John Locke, in his 1690 Civil Government, second treatise, separated the powers into an executive and a legislature. Montesquieu's 1748 Spirit of the Laws expanded on Locke, adding a judiciary. The framers of the Constitution took all of these ideas and converted the theories into practical applications. When discussing Separation of Power, is it helpful to contrast the American System to the governments of other nations. This list below is far from a representative sample of nations or systems. The United States, Britain, France, Canada, and Mexico are actually more similar than they are different, especially when the whole range of nations is taken into account. However, sometimes the smaller differences between similar systems can be interesting and illustrative. It is left to the reader to conduct studies of more disparate systems

The American constitutional system includes a notion known as the Separation of Powers. In this system, several branches of government are created and power is shared between them. At the same time, the powers of one branch can be challenged by another branch. This is what the system of checks and balances is all about. There are three branches in the United States government as established by the Constitution. First, the Legislative branch makes the law. Second, the Executive branch executes the law. Last, the Judicial branch interprets the law. Each branch has an effect on the other. Legislative Branch  Checks on the Executive  Impeachment power (House)  Trial of impeachments (Senate)  Selection of the President (House) and Vice President (Senate) in the case of no majority of electoral votes  May override Presidential vetoes  Senate approves departmental appointments  Senate approves treaties and ambassadors  Approval of replacement Vice President  Power to declare war  Power to enact taxes and allocate funds  President must, from time-to-time, deliver a State of the Union address  Checks on the Judiciary  Senate approves federal judges  Impeachment power (House)  Trial of impeachments (Senate)  Power to initiate constitutional amendments  Power to set courts inferior to the Supreme Court  Power to set jurisdiction of courts  Power to alter the size of the Supreme Court  Checks on the Legislature - because it is bicameral, the Legislative branch has a degree of self- checking.  Bills must be passed by both houses of Congress  House must originate revenue bills  Neither house may adjourn for more than three days without the consent of the other house  All journals are to be published Executive Branch  Checks on the Legislature  Veto power  Vice President is President of the Senate  Commander in chief of the military  Recess appointments  Emergency calling into session of one or both houses of Congress  May force adjournment when both houses cannot agree on adjournment  Compensation cannot be diminished  Checks on the Judiciary  Power to appoint judges  Pardon power  Checks on the Executive  Vice President and Cabinet can vote that the President is unable to discharge his duties Judicial Branch  Checks on the Legislature  Judicial review  Seats are held on good behavior  Compensation cannot be diminished  Checks on the Executive  Judicial review  Chief Justice sits as President of the Senate during presidential impeachment