SEPARATION OF POWERS
Richard Neustadt suggested that federal government, instead of having a separation of
powers, instead had ‘sharing powers’. This can be seen through the growth of the presidency,
in which the president has started subtly circumventing the powers nominally held by
congress. For example, the president (Obama?) used military action in Kosovo, Libya and
Syria without Congress declaring war. Therefore, whilst the powers enumerated in the
constitution effectively and clearly outlines the constitutional framework of government, the
growth of the presidency shows a sense of transience between each branches’ powers
creating a system of ‘sharing powers’ instead.
CHECKS AND BALANCES
Montesquieu suggested that human’s tendency to abuse power is prevented by the
implementation of checks and balances. The supreme court is able to overrule the president
for unconstitutional laws which effectively prevents the abuse of power. Moreover, Bush
vetoed 12 times, a power that is enumerated for the president in the constitution. However, 4
of these vetoes were overridden and there were an additional 6 failed overrides, showing how
divided government can in essence, prevent the president from dictating the legislative
process. Furthermore, the use of checks and balances, coupled with a divided government
creates the possibility for federal shutdown / gridlock. In 2018/19 shutdown lasted 35 days
and cost $5bn. Therefore, whilst it is clear that Montesquieu recognised how checks and
balances could avoid the abuse of power, the use of checks and balances can inhibit the
powers of the president significantly, and what is more dangerous, is that checks and
balances can inhibit the whole system of federal government from working efficiently or
successfully as seen with the phenomenon of government shutdowns.
N&P CLAUSE VS ARTICLE 10
Article 10 dictates that any powers not enumerated in the constitution are reserved for the
states, however, there is still significant tension between federal government and state
legislatures. For example, 30 states allow the death penalty, but the case of Kennedy v
Louisiana significantly restricted the use of the death penalty which arguably takes away
autonomy over decisions for the states. On the other hand, marijuana is legalised completely
in 9 states and medicinally in 30 which made it difficult for Trump to enforce the 1970
controlled substances act without the help of state law enforcement. Therefore, in both
senses, state power and federal power can restrict each other. Furthermore, the Necessary
and Proper clause allows congress to use the law in order to fully execute their enumerated
powers. Indeed, this directly contravenes Article 10 and further inhibits the extent of state
power.
THE CONSTITUTION: STRONG OR WEAK?
The vagueness of aspects of the constitution (like the ‘right to bear arms’) allows for
interpretive amendments to ensure the relevance of the constitution. Additionally, it
allows the constitution to be reactive to changing circumstances, however, after the
Sandy Hook shooting Obama failed to introduce effective reforms, suggesting that the
vagueness of the document in transit with the difficult of making amendments does not
allow for the constitution to evolve in regards to changing circumstances. Moreover,
Article II is also vague which allows for the growth of the modern presidency, but could
expand jurisdictions too much.
The codification of the US constitution provides clarity over the rights of citizens which
are clearly enforced by the Supreme Court. For example, affirmative action was
successfully upheld by the supreme court in the case of Fisher v University of Texas
2016. Conversely, codification of the constitution also means that aspects of the
constitution which are outdated are still enforced in the 21 st century.
The enumerated powers written within Article I-VII outlines the powers of each branch
of government clearly and ensures that checks and balances are fully adhered to.
Richard Neustadt suggested that federal government, instead of having a separation of
powers, instead had ‘sharing powers’. This can be seen through the growth of the presidency,
in which the president has started subtly circumventing the powers nominally held by
congress. For example, the president (Obama?) used military action in Kosovo, Libya and
Syria without Congress declaring war. Therefore, whilst the powers enumerated in the
constitution effectively and clearly outlines the constitutional framework of government, the
growth of the presidency shows a sense of transience between each branches’ powers
creating a system of ‘sharing powers’ instead.
CHECKS AND BALANCES
Montesquieu suggested that human’s tendency to abuse power is prevented by the
implementation of checks and balances. The supreme court is able to overrule the president
for unconstitutional laws which effectively prevents the abuse of power. Moreover, Bush
vetoed 12 times, a power that is enumerated for the president in the constitution. However, 4
of these vetoes were overridden and there were an additional 6 failed overrides, showing how
divided government can in essence, prevent the president from dictating the legislative
process. Furthermore, the use of checks and balances, coupled with a divided government
creates the possibility for federal shutdown / gridlock. In 2018/19 shutdown lasted 35 days
and cost $5bn. Therefore, whilst it is clear that Montesquieu recognised how checks and
balances could avoid the abuse of power, the use of checks and balances can inhibit the
powers of the president significantly, and what is more dangerous, is that checks and
balances can inhibit the whole system of federal government from working efficiently or
successfully as seen with the phenomenon of government shutdowns.
N&P CLAUSE VS ARTICLE 10
Article 10 dictates that any powers not enumerated in the constitution are reserved for the
states, however, there is still significant tension between federal government and state
legislatures. For example, 30 states allow the death penalty, but the case of Kennedy v
Louisiana significantly restricted the use of the death penalty which arguably takes away
autonomy over decisions for the states. On the other hand, marijuana is legalised completely
in 9 states and medicinally in 30 which made it difficult for Trump to enforce the 1970
controlled substances act without the help of state law enforcement. Therefore, in both
senses, state power and federal power can restrict each other. Furthermore, the Necessary
and Proper clause allows congress to use the law in order to fully execute their enumerated
powers. Indeed, this directly contravenes Article 10 and further inhibits the extent of state
power.
THE CONSTITUTION: STRONG OR WEAK?
The vagueness of aspects of the constitution (like the ‘right to bear arms’) allows for
interpretive amendments to ensure the relevance of the constitution. Additionally, it
allows the constitution to be reactive to changing circumstances, however, after the
Sandy Hook shooting Obama failed to introduce effective reforms, suggesting that the
vagueness of the document in transit with the difficult of making amendments does not
allow for the constitution to evolve in regards to changing circumstances. Moreover,
Article II is also vague which allows for the growth of the modern presidency, but could
expand jurisdictions too much.
The codification of the US constitution provides clarity over the rights of citizens which
are clearly enforced by the Supreme Court. For example, affirmative action was
successfully upheld by the supreme court in the case of Fisher v University of Texas
2016. Conversely, codification of the constitution also means that aspects of the
constitution which are outdated are still enforced in the 21 st century.
The enumerated powers written within Article I-VII outlines the powers of each branch
of government clearly and ensures that checks and balances are fully adhered to.
