Although we often hear the term separation of powers, it is important
to help members of our communities understand what the three powers are,
how they relate to one another and the intent of the Framers in keeping
the three branches separate.
The Framers created a system that allowed for each branch of government
to serve as a check and balance on the powers of the others. For example,
the executive can veto legislation passed by Congress, and the judiciary
can review the constitutionality of legislation if it is challenged in
court.
The following three letters to the editor can serve as reminders
of the roles played by each branch of our federal government as established
by the Constitution. Although these letters mention Constitution Day, they
can be used throughout the year to call attention to the rights and responsibilities
we enjoy under the Constitution.
Letter One: Legislative Branch
September 17 is Constitution Day, a commemoration
that provides an opportunity for all of us, as Americans, to reflect
on our enduring system of government. As lawyers who have sworn to
uphold the law of the land as established by the Constitution, the members
of the _________ Bar Association invite you to learn more about one of
the three separate branches of government.
When the Framers of our country adopted the Constitution, they saw
a need to keep any one branch of the government from becoming too powerful.
As we observe Constitution Day, it is important to remember their goals.
The Framers created three branches of government regulated by a system
of checks and balances. Those three are the legislative, executive and
judicial branches.
In looking at the legislative branch of the federal government -
Congress - it is the one that makes laws.
Congress is considered a representative body because the members
of each house represent their individual districts and states. In the Senate,
two senators represent each state. For the House of Representatives, each
member currently represents approximately 675,000 people. The number of
members in the House of Representatives is fixed at 435, and depending
on the outcome of the U.S. Census every ten years, states may gain or lose
representatives.
The House of Representatives and the Senate make up Congress, which
has many powers given to it by the Constitution. Congress has control over
the budget, it declares war, it establishes federal courts below the level
of the United States Supreme Court and it regulates immigration, the mail,
copyrights and commerce among the states and with foreign countries. In
addition, the Constitution provides that Congress can pass any laws necessary
to ensure it can carry out its specific powers.
Both the House and the Senate must agree to legislation before it
is passed and becomes law.
Checks and balances on the powers of Congress include the President's
veto power and the Supreme Court's power to review the constitutionality
of a federal law if it is challenged in a case before the Court.
Because the Founders of our country believed so strongly in a representative
government, they began the Constitution in Article I by outlining the role
and power of Congress.
Congress makes decisions about our country on our behalf. It is our
right and responsibility as citizens to hold our representatives accountable
for those decisions.
Name President, __________ Bar Association
Letter Two: Executive Branch
September 17 is Constitution Day, a commemoration
that provides an opportunity for all of us, as Americans, to reflect
on our enduring system of government. As lawyers who have sworn to
uphold the law of the land as established by the Constitution, the members
of the _________ Bar Association invite you to learn more about one of
the three separate branches of government.
The U.S. Constitution provides for three branches of government created
to form a system of checks and balances. The Framers wanted to keep any
one branch from becoming too powerful.
In the case of Article II, which creates the office of the President
of the United States, the Framers were very careful about the scope of
power because they all remembered the tyranny of King George III.
As we observe Constitution Day on Sept. 17, it is important to consider
the role that the executive branch plays in conjunction with the judiciary
and legislature to create our system of government.
The executive branch is charged with managing the federal agencies
that carry out the laws passed by Congress. The Chief Executive - or President
- serves as the Commander in Chief of the armed forces, and he or she can
make treaties, nominate federal judges and appoint government officers.
In addition, the President can pardon those convicted of a federal crime.
The president is the titular head of the government and functions
as the head of state. Presidents are elected to office and, since the passing
of the 22nd Amendment in 1951, cannot be elected more than twice.
The Constitution places limits on the power of the president. The
Senate must approve treaties before they can take effect. It must also
approve the people the President picks as federal judges or other government
positions.
Beyond those limitations, the Constitution empowers Congress to impeach
and convict the President for "treason, bribery, or other high crimes
and misdemeanors." The Constitution also allows the federal courts
to declare executive actions unconstitutional if those actions are challenged
in court.
The Framers recognized the need to ensure the Chief Executive was
accountable to the people. Their goal was to have a government where all
three branches participated equally.
Name President, _____________ Bar Association
Letter Three: Judicial Branch
September 17 is Constitution Day, a commemoration
that provides an opportunity for all of us, as Americans, to reflect
on our enduring system of government. As
lawyers who have sworn to uphold the law of the land as established
by the Constitution, the members of the _________ Bar Association
invite you to learn more about one of the three separate branches of government.
Under the U.S. Constitution, the judicial branch of the government
is an equal partner with the legislative and the executive branches.
As we celebrate Constitution Day on September 17, we need to look at
what the Framers intended when they wrote Article III, which establishes
our federal judiciary.
The federal judiciary is made up of judges from federal courts,
including the U.S. Supreme Court. To limit political interference from
Congress or the executive branch, federal judges receive by appointments
for life, assuming "good behavior," and a guaranteed salary.
The power of the federal judiciary to review the constitutionality
of executive actions or laws passed by Congress is called judicial
review. This power was first used in 1803 by the Marshall Court in
Maybury v. Madison, setting a precedent for subsequent decisions by the
Supreme Court. Although judges may have opinions on issues, their power
to make decisions is limited to the "cases and controversies" brought
to the court.
Like the other two branches of government, the federal judiciary
has constraints. Individual judges must explain their decisions in
written opinions, they must follow the precedents established by the decisions
of higher courts, and their decisions are subject to review by courts
of appeals.
In addition, the executive and legislative branches each have powers
that check and balance the judiciary. For example, the president
nominates judges for federal courts, and the courts rely upon the executive
branch to enforce their decisions.
The legislative branch too has control. Congress can impeach a federal
judge who misbehaves in office, Congress controls the budgets for
courts and judges (although it cannot reduce a judge's salary) and Congress
can pass news laws if it disagrees with the judiciary's interpretation
of existing laws.
Although, we do not elect members of the federal judiciary, we do
elect the people who appoint them - the president - and confirm them
- the Senate. It is our responsibility to vote for the kind of people who
will appoint diligent, knowledgeable and trustworthy judges.
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© 2007 American Bar Association
