Student's
Introduction to the Law of the United
States.
I am professor Pedro A Malavet, of the
Levin College
of Law, and today I will be speaking about
constitutional implementation.
Last time, I spoke about the three
governmental powers of the United States.
Today, I speak about how they exercise
their
authority and how they relate to each
other.
The implementation of the Constitution
requires an
understanding of the concept of separation
of powers.
As I discussed last time, the Constitution
didn't pretend to answer all the questions
about how the power of the Government of
the United States was to be exercised.
In particular, how the powers of each
branch of
that government were supposed to relate to
each other.
So political and legal conflicts were
expected to
arise and, in fact, have arisen throughout
our history.
And they are often resolved politically
through a
compromise between the legislative branch
and the executive branch.
But sometimes the political branches of
government are unable to resolve their
disputes.
So therefore, traditional intervention
will be required.
Another subject that I must discuss today
is
the immoral institution of slavery which
is unfortunately a,
cancer that was left in our Constitution
that could
not be resolved by any political or
judicial compromise.
Separation of powers, as Professor Burnham
has defined it,
there are principles that are sure that
none of the
three branches of government, of
the federal government, legislative,
executive,
or judicial oversteps the bounds of its
proper Constitutional role.
Usurping the power of the other.
This might seem a simple concept, but in
operation it is not.
In operation, what happens is that there
are checks and balances.
There's a sharing of institutional power
among the three branches of our
government.
And the separate institutions must
cooperate to some extent in
exercising a great deal of the power of
national govermnent.
The two political branches of course and
the, the judicial branch.
And this is where balancing is required.
To the extent that sharing of power is
built into the Constitution, how that
power is
to be shared is balanced agai,n through a
combination of political process and
sometimes judicial decision making.
The separation of powers of the United
States government is fundamental to the
constitutional structure.
These three branches of government are
separate, but they're equal under our
Constitution.
That's why they are specifically set out
in the three
first articles of the basic charter of the
United States.
The sharing of power was intentional.
The founding fathers knew that it was
important for the branches of government
to work with each other in order to have a
functioning national government.
But they understood that checks and
balances would be useful, indeed
necessary, for the evolution of our
national government.
And also to make sure that no one branch
of the government was too powerful.
To put it in graphic terms, you
have the legislative, executive, and
judicial competence.
Legislative, executive, and judicial
authority.
There are certain areas where they don't
have to share any
power with any other branch of government,
and then there are areas
where the different branches must
cooperate with just one
other branch, and then there are areas
where all of them have to cooperate.
It, it in to give you a very simple
example,
the executive and the judicial branch can
not operate without money.
The legislative branch has to give it to
them.
Another constitutional provision that is
fundamental to the
functioning of the United States is the
supremacy clause.
The supremacy clause provides that the
Constitution of the United States and the
laws that are passed under it are the
so-called supreme law of the land.
Meaning that In the hierarchy of laws, the
Constitution,
the federal laws, and treaties that are
entered into
under the Constitution, are supreme and
displace any
incompatible state law or any incompatible
regulatory act.
This is the primary source of federal
judicial power.
This is what gives our Supreme Court, and
the federal courts, more
generally the power to enforce the
Constitution even on the several states.
The concept of judicial review is today
fundamental to
the way the Supreme Court of the United
States functions.
But in the early days of the republic, it
wasn't entirely clear that it existed.
Of course, ours is a common law tradition.
A common law tradition does implicate
courts
that issue judicial opinions that are
generally binding.
But does that rise to a constitutional
level of authority?
Well, Chief Justice John Marshall, so
ruled in one of the
most important decisions ever issued by
the United States Supreme Court.
Marbury vs Madison, and you see here a
picture of the Chief Justice and the
actual order
that was issued in the Marbury case, as
they are kept by the United States
National Archives.
Marbury, in 1803, the Supreme Court of the
United State rules that it is emphatically
the duty and province of the Judicial
Department to say what the law is.
Those words are extremely significant.
The duty of the Judicial Department to say
what the law is.
Judicial review, that the courts have
authority to interpret
and to apply the Constitution of the
United States.
[BLANK_AUDIO]
Justice Marshall, understood that judicial
review was necessary and he found it in
the Constitution itself.
The supremacy clause that I talked to you
about
provides that the law have to be followed
by all.
Well, in a common law tradition country
like ours,
it is the courts that enforce and
interpret the laws.
Article three expressly says that the
judicial
power of the United States is vested
in the Federal Courts, and therefore it is
the traditional role for the courts.
The one that guarantees them the authority
to issue case law
and to resolve legal disputes that is
enshrined in Article III.
And lastly, Constitutional hierarchy.
The Constitution requires that any law
passed
within the United Sates be subordinate to
it.
The Constitution is our fundamental
charter.
It is the single most important law in the
United
States and has been so for well over 200
years.
And sadly I must finish this section of
our series by discussing slavery.
The immoral institution of slavery.
Unfortunately, slavery was constitutional.
Not only that, the Constitution enshrined
slavery as an institution
that could not be invalidated by the
United States Congress.
But interestingly they chose not to use
the word slave in the Constitution.
But it was very clear and it was so
resolved
by the Constitutional Convention that
slavery could not be abolished.
In addition to that, slaves, chattel
property, human
beings, that were chattel property, would
be counted towards the congressional
representation of their owners.
The Constitutions has three articles that
are
expressly designated to protect the
institution of slavery.
Article One, Section Two, Clause Three
states that a person bound to service,
slaves, were to contribute three fifth
to the congressional representation of
their masters.
Article One, Section Nine, Clause One
limits
the congressional power to restrict the
slave trade.
That is the provision that prevents the
Congress from abolishing slavery.
Article Four, Section Two, Clause Three,
bailson person held to service,
must be returned to their master when
they're able to escape them.
So the run\away slave can not be free.
So to conclude, our Constitution after
setting up the basic
branches of the government, moved forward,
primarily thanks
to the concept of separation of powers and
checks and balances.
And when political disputes could not be
resolved, thanks to
the concept of judicial review to the
power of the courts.
And this worked generally quite well.
But unfortunately, the Constitution left
an un-resolvable
issue in it, and that was slavery.
This was the problem that could only be
resolved by a bloody civil war.
And we will discuss that in our next
session.
0 comments:
Post a Comment