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Andrew Leahey

POLI 105

Essay #2

The first three articles of the Constitution create and limit the powers of the

different branches of government. In so doing, they betray a fundamental

knowledge of human nature. Each branch is tasked with checking the others, and no

one branch is given control over another’s method of appointment. The contents of

Articles I, II and III of the United States Constitution each create and lay out a

separate branch of government. In Article I, the Legislative branch is fleshed out. In

Article II, the Executive branch. Finally, in Article II, the Judicial system is created,

and its powers and limitations expressed.

In Article I, specifically the first seven sections, the Legislative branch of

government is laid out. It was “designed to contribute to governmental power [and]

promote popular consent for the new government” (Lowi, 26). It is structured as a

bicameral, meaning two-chambered, body . The lower house, known as the House of

Representatives, are directly elected by the people (26). Members of the House of

Representatives, subject to two year terms, are tasked not only with directly

representing the people of their districts but, as well, with checking the power of the

Executive Branch. The House of Representatives have sole power to create revenue

bills (26). In this way, the lower house controls the flow of income to the federal

government. In addition, the House of Representatives are given sole power over

borrowing money, commerce regulations, and declaring war, meanwhile being

tasked with maintaining both the United States Army and Navy (27, Graphic). The

House of Representatives was given substantial power, but in order to guard against
abuse of that power, a second, upper house, was formed and tasked with checking

the power of the lower.

The upper house, also laid out in Article I, is known as the Senate. This

legislature is made up of members that are elected to six-year terms. In addition,

these terms are staggered so that only 1/3rd of the Senate is up for re-election in

any one election year (27). In this way, the Senate was protected from the popular

will of the time, and the consensus of the Senate could be preserved for longer

periods of time than was possible in the House of Representatives.

In Article II, the constitution lays out the basis of the Executive branch. The

Executive Branch, headed by the presidency, was designed to overcome the

“natural stalemate” (Lowi, 27) inherent in the bicameral legislature. A strong central

executive was intended to be somewhat removed from the popular pressures of the

times, and as such was designed to not be directly elected by the people. The

Executive, or President, was tasked with the sole responsibility of accepting

ambassadors from foreign powers, and thus was given the ability to formally

recognize foreign nations (28). The President, through Article II, was also given the

sole power to negotiate treaties, though this power was checked with a requirement

that all treaties be accepted by the Senate. Finally the Executive branch, specifically

the president, was given the sole power to grant reprieves and pardons; that is, the

forgiveness of crimes by citizens (28).

In Article 3, the Judicial System of the United States is laid out. The purpose

of the Judicial branch was to check the substantial amounts of power granted to the

other branches of government and insure liberty to the new government’s citizens.

The Judicial Branch, headed by a truly Supreme Court, was to be as removed from

the popular pressures of democracy as possible. To that end, Judges within the
Supreme Court were appointed to life terms. In keeping with the sentiments of the

rest of the Constitution, however, their power was checked by a requirement that

they not only be nominated by the head of the Executive branch, the President, but

also be subject to a confirmation vote in the Senate (28).

The lower house would also be granted the power to create lower courts,

which could then adjust the jurisdiction of the Supreme Court (28). There was a

good deal of oversight inherent in the selection of the judges, and with good reason.

The Supreme Court would not only be the highest court in the national government,

but would have final say in matters of conflict between the states and the national

government as well as handling issues between citizens of different states. While

there is no mention of judicial review, that is “the power of the courts to declare

actions of the other branches invalid or unconstitutional” (28), in the Constitution,

the general consensus is it is implicit. The judicial branch is a major cog in the

machine of the US government; checking the powers of the other branches, and

wielding substantial power itself.

In James Madison’s Federalist #51, a compelling argument for this system of

governance is laid out. Indeed all of the powers of the various branches of

government come together and form a system of checks and balances, as he

intended. In Federalist #51, he argues first to split the government as a whole in to

two separate distinct bodies, the federal and the state governments. He further

states that since every department will have its own agenda, each must have as

little say or control over the appointment of top officials in the others. All

departments should draw their members from the same place, the people, but

through different channels so as to limit the amount of communication between any

two branches, and avoid any sort of collusion between them. He goes on to say that
some deviations will, inherently, be necessary, as a perfect system of government

doesn’t exist. An example he gives is the judiciary system. The qualities needed in

members of that body are self-limiting to the pool of possible applicants. Hopefully,

however, the permanence of their position will allow them a measure of autonomy

from the branches, or people, that helped get them there. In essence, in Madison’s

Federalist #51, he makes the argument that men are not angels. The government

must be there to govern the people, but the government must control and limit the

government as well, as the constitution attempts to.

Essay # 3

There are two separate ideas of privileges we are granted as Americans. On

one hand, we have civil rights. Those are the rights we are granted as American

citizens, naturalized or born. On the other hand, we have civil liberties. These are

things we have the right to be free from.

The first privilege we are granted as Americans, that I wish to discuss, is that

of civil liberties, things we are given the right to be free from the government doing

to us. Its main document is the Bill of Rights, which are the first 10 Amendments to

the Constitution. The First Amendment was the only one of the 10 to explicitly

mention it limiting the national government. Therefore, there was debate for a time

as to whether or not they limited the state governments as well as the national (74).

This debate was settled, however, with Barron v. Mayor of Baltimore in 1833 (75). It

was a landmark decision in that it cemented the fact that American’s were citizens

of two governments, a national government and the state government in which they

reside. In this way, it left up to the states the implementation of their own Bill of

Rights, and left up to the states, the protection of the rights of its citizens. This was
the cornerstone of the argument for the legality of slavery. It took a civil war, and an

amendment to the constitution, to nationalize our civil liberties (75).

The second privilege I wish to discuss is that of civil rights. Civil rights are

considered the rights we are granted as Americans, claims that we are entitled to

make on the government to protect us from actions of other citizens, or the

government itself. They became a part of our constitution when the 14th

amendment was ratified. They are, in essence, our rights to “equal protection of the

laws” (90). After its ratification it seemed as if a guarantee of civil rights to all

citizens was just around the corner, however, with the 14th Amendment added in

1868, its effects were not immediate by any means.

There is no better example of the slow progress of these “equal protections”

than that of school segregation. Up until Brown v. Board of education of Topeka,

Kansas, simply providing an alternate school for black students was considered

sufficient to satisfying these “equal protections” (92). This was known as the

“separate but equal” rule, and was not reversed until that 1954 landmark court

decision. In this way, the federal government had to step in and force a state

government to comply with its idea of what rights an American citizen had to be

guaranteed. The various interpretations of the “equal protection of the laws”,

between states and the federal government, has lead to most of the debate on what

should or should not be done to protect one group of citizens from another, or the

government itself.

To this day, the question is raised as to what exactly “equal protection of the

laws” means; since no direct definition was written in the 14th Amendment. For

some, since the prior segregation of a group of citizens has created a different

starting point for them, they are entitled to be granted more perks, and be given an
easier time, than others (73). For others, this is seen as an infringement on their

own civil rights, giving a head start to other citizens and not to them. Regardless,

for most, the perfect implementation of the 14th Amendment, and civil rights, has

not yet been achieved.

Another key example of a civil rights movement the government has stepped

in on is that of Americans With Disabilities. It was emerged as an outcropping of the

civil rights movement in the 1970s and a portion of the 1973 Rehabilitation Act that

made it illegal to discriminate against an individual based on a disability (105). That

law lead to citizens with disabilities demanding they be protected, and given equal

opportunities, as well as equal facilities, to those who were not disabled. In 1990,

with the passage of the ADA (Americans with Disabilities Act) a large amount of

their demands were granted. Public facilities were compelled to have in place

equipment that would allow disabled persons access. Things like ramps and

elevators were required in public buildings.

If the Americans With Disabilities movement was an offshoot of the civil rights

movement, the plight of those affected with HIV was an offshoot of that. In 1998 the

Supreme Court ruled that the ADA applied to those infected with HIV, and not just

AIDs patients (105). This stemmed from a dentist refusing to treat a patient who

was infected with the virus. The patient argued that since she was already being

discouraged from having children, she was in fact disabled, despite her HIV not

having yet turned in to full AIDs. The Supreme Court ruled in favor of the patient,

and although businesses had already been accommodating HIV infected people, this

now solidified their right to equal protection under the law (106).

In my opinion, the question as to whether or not the US government has

overstepped its authority in forcing the states to make changes to protect

Americans’ civil rights is not one easily answered. On one hand, you can argue that

its merit should be judged based on its outcome. Judging the principle on its

product, the increasing of the equality of minority groups in the United States, it

certainly seems like it was a good decision. However, I believe the idea of giving the

individual states autonomy and freedom from control of a central government was a

good one. It allowed for experiments of democracy within the states. What worked

could be kept, and spread to other states, what didn’t work could be done away

with. It segregated portions of the population, not in the negative way, but in

allowing different areas to experiment with their government in different ways. In

other words, it allowed for one state to go down without bringing the entire country

with it.

In nationalizing the civil rights of American’s I think this ability has been

severely curtailed. When used for a positive, all is well-and-good, but what happens

when it is used for a negative? The entire country suffers. While I believe the civil

rights movement to be a positive step forward, I think the means used to achieve it

were not the best, and I think the US government did overstep its authority in

forcing the individual states to make changes to its civil rights laws.