Monday, September 18, 2006

 

Checks and Balances, aka the Separation of Powers: Judicial Review is Missing

I. Checks and Balances: Three Branches of Government

The Constitution sets up our government by dividing it into three separate branches, the Executive, the Legislative, and the Judiciary. The Executive Branch enforces the laws, the Legislative Branch enacts the laws, and the Judiciary Branch interprets the laws.

A. Debate From The Outset

While there is almost universal reverence for our Constitution today, this was not the case when it was first drafted. There were two factions, the Anti-Federalists (opposing ratification of the Constitution and wanting to either stick with the Articles of Confederation or some other plan) and the Federalists (promoting ratification of the Constitution).

The Anti-Federalists were concerned that the Constitution gave us too strong a central government, and that strong central governments promote tyranny. The Federalists saw a strong central government as necessary for the development of the United States, and felt that sufficient protections of liberty could be arranged.

So contentious were these debates that the Federalists saw the need to advertise their beliefs to the general populace in the form of several published essays called "The Federalist Papers" which were designed to convince the people of New York to vote to ratify the Constitution.

1. Separation of Powers

One example of the contentious debate between the Federalists and Anti-Federalists was about separation of powers. The Anti-Federalists, quoting the French political thinker Montesquieu, argued that any document which put the Legislative, Executive and the Judiciary under one government was inherently tyranical.

In England, the King was the Executive, and his office arose independently of any other power. There was no document giving the King his power. He and his family simply ruled. Similarly, the Parliament was the Legislative branch, and arose independently of the King (and indeed had even placed some limits upon the King and further, was openly resented by the King). The English Courts arose in part, via the Church (especially the ecclesiastical courts) and thus were independent of either the King or Parliament. So concentrating all of the power of government into one document was a new idea and seemed a risky proposition to some.

But the Federalists argued back that having all three branches arise together was unavoidable, and that even in England, there was some overlap between the branches. They argued that so long as there were checks and balances between the branches, the fact that they all arose under the same document was nothing to worry about. In the case of the United States Constitution, this document sets up a legislative branch (made up of two houses, the Senate and the House of Representatives), an Executive Branch (made up of a president and vice president, and lastly a Judicial Branch (with a Supreme Court).

While this arrangement is not novel to the history of the world, an idea which arose of out of this system is America's unique contribution to world government. That idea, expressly stated no where in the Constitution, is the idea of Judicial Review.

2. Judicial Review

The Constitution expressly limits the power of the Legislature by giving the Executive Branch (in the form of the president) the power to veto any act of Congress. The Constitution limits the power of the Executive by allowing the Legislature to override that veto via a two thirds majority as well as the power to impeach the President. But no where does the Constitution expressly give to the Supreme Court the tremendous power it has today. Which brings us to the first important (and perhaps, most important) Supreme Court case, Marbury v. Madison.

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Comments:
Impeach Bush yourself! No Joke.
This is much more than just a petition.

There's a little known and rarely used clause of the "Jefferson Manual" in the rules for the House of Representatives which sets forth the various ways in which a president can be impeached. Only the House Judiciary Committee puts together the Articles of Impeachment, but before that happens, someone has to initiate the process.

That's where we come in. In addition to the State-by-State method, one of the ways to get impeachment going is for individual citizens like you and me to submit a memorial. ImpeachforPeace.org, part of the movement to impeach the president, has created a new memorial based on one which was successful in impeaching a federal official in the past. You can find it on their website as a PDF.

STOP WAITING FOR YOUR MEMBERS OF CONGRESS TO ACT FOR YOU.

You can initiate the impeachment process yourself by downloading the memorial, filling in the relevant information in the blanks (your name, state, etc.), and sending it in.

http://ImpeachForPeace.org/ImpeachNow.html

More information on the precedent for submitting an impeachment
memorial, and the House Rules on this procedure, can also be found at
the above address.

If you have any doubts that Bush has committed crimes warranting
impeachment, read this page: http://ImpeachForPeace.org/evidence/

If you're concerned that impeachment might not be the best strategy
at this point, read the bottom of this page: http://ImpeachForPeace.org

"I just want you to know that, when we talk about war, we're really talking about peace."
Bush, June 18, 2002

"War is Peace."
Big Brother in George Orwell's 1984
 
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