ANALYSIS OF AMERICA SYSTEM OF SEPARATION OF POWER AND FEDERALISM
Author: Prakhar Dubey, II year of B.A., LL.B.(Hons.) from UPES Dehradun School of Law
Origin of American Constitution
America got independence on 4th July 1776 from the British colonial rule where the 2nd Continental Congress was asserted. Later in 1783, the Treaty of Paris was signed which led the English to recognize the 13 former colonies as an independent. George Washington was elected as commander of America. In 1789 in Philadelphia America new Constitution was made instrumental.[1]
The age of Modernity was responsible for extending literature, art, medicine, science to reach people and that's when people learned about the social contract theory which helped understand the evident fact all men are created equal, they are endowed by the creator with some inalienable rights which are – Life, Liberty, and Pursuit of Happiness[2]. A nation born in revolt but conceives liberty after it has gained independence. Now the main aim for the nation-state is to secure- Liberty and Prosperity[3].
American Successful Model
When many nations were failing to protect the rights of people, America was successful in the guaranteeing right because of 2 reasons-
Separation of powers
Federalism
Montesquieu was the 1st philosopher who created the idea of separation of power to guarantee freedom. In 1748 he observed that all governments including democracy tend to fight for power at the expanse of the liberty of citizens. So, the best way out of this is the separation of powers in the hand of the sovereign. When the legislative and executive powers are in hands of one person or body there will be no liberty that is when the person or body starts behaving in a tyrannical manner.
Then the 13th American State adopted it after the revolution in 1787 which led to the basis of the national government. Before the American Revolution 13 colonies were dissimilar which had to answer their own King and Parliament. Then later after independence the Constitution came, now things have changed. Originally the Constitution was divided into the Preamble which represents goals and beliefs. It had 7 articles where the first 3 articles were for national government-
Article 1 Section 1= All legislative powers will be hands of Congress in America which shall consist of the Senate and House of Representatives.
Article 2 Section 1= the executive powers in the hands of the US President who will be elected by people from their constituencies.
Article 3 Section 1= judicial powers in the hand of the Supreme Court.[4]
Features of government were President, veto power, Judicial review, Impeachment but it was all covered in Federalism and separation of power. President may propose law but the de jure proposal would be no different from citizen suggestion to Congressman thus the primary law-making body is Congress.
House of Representative= each member represents a population equal to that of represented by fellow Congressman thus each person is equally represented
Senate= represented by the state having senator.[5]
Before the bill is passed it must get the majority from both the houses of Parliament then it reaches the President. The Constitution assigns him veto power which means if he signs the bill it becomes law of the land. If it sends back the bill the Congress may override by 2/3 majority. Bill will be reviewed by 3 constituencies – one nation, one federal one mixed before passing after the bill is passed; it is the duty of the President to enforce it.
Thus, the electoral college brings the element of federalism into the execution of laws. Under the separation of power, the President would be responsible to the people and the president has no execution of laws. The constitution gives the power of check and balance on the executive through the impeachment of the President and senate ability to reject the appointment.[6]
Citizenship
The USA follows the system of single citizenship by the process of the 14th amendment of the American constitution deals with citizenship. The concept of jus soli prevails which is born in the territory is a citizen
The United States v. Wong Kim[7]
It was held that man/women born within the country to the foreigner who had permanent domicile and permanent residence in the USA will be a citizen. If both the parents of the child are citizen then is not born in physically confines, he will be a citizen
Afroyim v Rusk[8]
In this case, it was held one citizen was given by the process of naturalization it cannot be taken involuntarily other than exceptional circumstance.
Guarantee liberty
It may be threatened due to-
a. foreign powers
b. FellowCitizens
2. Government
1. Dealing with Foreign Power
The USA speaks with unity when dealing with allies and Folies alike as the power to declare war rests with Congress alone it extends far beyond the action of declaring war. The Supreme Court is generally held by the President in order to be valid in the matter of America's interest. It can also negotiate with other nations. The Constitution requires the Senate to approve the treaty before it comes into effect. This is a result of why no hostile power ever invaded America.9
2. Balance Citizens Right
No one is free in the state of anarchy, fear always remains, citizens, become a prisoner in their own home. Thus, the central government must function to remove anarchy so that people can live happily and peacefully. Here 50 states maintain public order thus maintaining the policy of Lizzie faire. The pressure to protect citizen right one such big step came by abolishing slavery by way of the 13th Constitutional Amendment to work towards humanity and the welfare state. Each state and its citizen need to learn from each other to improve the quality of protection towards each other.10
3. Putting Harness over Government
The government may sometimes over exercise its power so the constitution has always provided a mechanism so that the fundamental basis of liberty is not harmed. One such instance is the Voting Right Act of 1965 when Congress steps to correct abuse when some states were denying their citizens the right to vote.
The Constitution explicitly provided in the 14th Amendment in 1868 to citizens could not be withheld on account of race and the 15th Amendment protecting voting rights. Finally, Supreme Court held state guarantee due process of law to men by Bill of Rights applicable to State and to respect the individual right to a jury trial, confrontation of witnesses, free speech, right to the internet, right to privacy, religion, free press, etc.11
Judicial Review
The national government is bound by constitutional restriction. President abuse of power is the case when the judiciary reviews it. The highest court here has the power to declare executive and legislative branch unconstitutional Murbury vs. Madison [12]
The judicial review is not a breach. Chief Justice Marshall said the judicial review is the logical collar necessary to identify separation of power. It is the function of the court to see if laws are properly functioning and if it breaches it will charge the person or authority for violation of the law.
Federalism in America
As we see the American federal system was not planned. We did adopt the Constitution at the time of Independence to establish a federal structure that allocates power between the federal government and state. It is because of the Supreme Court due to which this system of federalism has evolved. Federalism can be classified into 4parts-
State sovereignty and constitutional limitation on state power
Power of federal government
Relationship between federal and state government
Relationship between states[13] Carter v. Carter Coal[14] It was held that state sovereignty is given in the American constitutional system and states don't depend upon any other source for establishing their sovereignty.
Allocation of Power in a domestic matter in 3 ways
a. It provided power exclusively to the federal state that cannot be exercised by a state with the consent of Congress. For example, the power to impose a duty or enter with the foreign state.
b. State form a national union
c. Federal System decision will prevail in the matter of conflict between federal and state on matter corresponding concurrentlist.[15]
Conclusion
The American system of government is limited by structure by an element of federalism and separation of power not only to protect the right which the 13 different state won by Revolution and forming nation-state but also to defend the sovereignty by expanding the light by protecting citizens right by becoming champion of freedom, equality, liberty and expanding justice.
[1] GUPTA DAS TAPTI & CHURIWALLA KANCHAN, History of modern World, SC Chand publication
[2] O.P. Gauba, An Introduction to Political Theory 287 [Macmillan Publisher India Ltd 5th ed.
[3] U.S. Constitution Preamble
[4] supra
[5] Daniel J. Balhoff, Our American Constitution, 41 SW L.J. 1073 [1987]
[6] supra
[7] 167 U.S.649[1898]
[8] 387 U.S. 253[1967]
[9] Jack M. Balkin, The American Constitution as Our Law, 25 YALE J.L. & HUMAN. 113 (2013)
[10]supra
[11]supra
[12] 5 U.S. [1 Cranch] 137 [1803]
[13] Robert A. Sedler, The Constitution and the American Federal System, 55 WAYNE L. REV. 1487 (2009)
[14] 298 U.S.238[1936]
[15] Supra