I. Checks and Balances:
The Constitution creates a system of separate institutions that share powers. Because the three branches of government share powers, each can (partially) check the powers of the others. This is the system of checks and balances. The major checks possessed by each branch are listed below.
- Can check the president in these ways:
Can check the federal courts in these ways:
- By refusing to pass a bill the president wants
- By passing a law over the president's veto
- By using the impeachment powers to remove the president from office
- By refusing to approve a presidential appointment (Senate only)
- By refusing to ratify a treaty the president has signed (Senate only)
- By changing the number and jurisdiction of the lower courts
- b. By using the impeachment powers to remove a judge from office
- c. By refusing to approve a person nominated to be a judge (Senate only)
- Can check Congress by vetoing a bill it has passed
- Can check the federal courts by nominating judges
- Can check Congress by declaring a law unconstitutional.
- Can check the president by declaring actions by him/her or his/her subordinates to be unconstitutional or not authorized by law.
In addition to these checks provided for in the Constitution, each branch has informal ways of checking the others. For example, the president can withhold information from Congress (on the grounds of executive privilege), and Congress can try to get information from the president by mounting an investigation.
II. Liberties Guaranteed in the Constitution (before the Bill of Rights was added)
- Writ of habeus corpus may not be suspended (except during an invasion or rebellion).
- No bill of attainder may be passed by Congress or the states.
- No ex post facto law may be passed by Congress or the states.
- Right to trial by jury in criminal cases is guaranteed.
- The citizens of each state are entitled to the privileges and immunities of the citizens of every other state.
- No religious test or qualification for holding federal office is imposed.
- No law impairing the obligation of contracts may be passed by the states.
III. The Bill of Rights: Ratified on December 15, 1791
The Amendments to the Constitution - From Project Vote Smart
The First Ten Amendments to the Constitution Grouped by Topic and Purpose (see appendix for original text)
PROTECTIONS AFFORDED CITIZENS TO PARTICIPATE IN THE POLITICAL PROCESS
Freedom of religion, speech, press, and assembly; the right to petition the government.
PROTECTIONS AGAINST ARBITRARY POLICE AND COURT ACTION
No unreasonable searches or seizures.
Grand jury indictment required to prosecute a person for a serious crime.
No double jeopardy - being tried twice for the same offense
Forcing a person to testify against himself or herself is prohibited
No loss of life, liberty, or property without due process
Right to speedy, public, impartial trial by jury with defense counsel and right to cross-examine witnesses.
Jury trials in civil suits where value exceeds $20.
No excessive bail or fines, no cruel and unusual punishments.
PROTECTIONS OF STATES' RIGHTS AND UNNAMED RIGHTS OF PEOPLE
Unlisted rights are not necessarily denied.
Powers not delegated to the United States or denied to the states are reserved to the states.
Right to bear arms.
Troops may not be quartered in homes in peacetime.
IV. Ways of Amending the Constitution:
Under Article V, there are two ways to propose amendments to the Constitution and two ways to ratify them.
To propose an amendment
- Two-thirds of both houses of Congress vote to propose an amendment, or
- Two-thirds of the state legislatures ask Congress to call a national convention to propose amendments.
To ratify an amendment
- Three-fourths of the state legislatures approve it, or
- Ratifying conventions in three-fourths of the states approve it.
Some Key Facts:
- Only the first method of proposing an amendment has been used.
- The second method of ratification has been used only once, to ratify the Twenty-first Amendment (repealing Prohibition).
- Congress may limit the time within which a proposed amendment must be ratified. The usual limitation has been seven years.
- Thousands of proposals have been made, but only thirty-three have obtained the necessary two-thirds vote in Congress.
- Twenty seven amendments have been ratified.
Bill of Attainder
- A legislative act that declares the guilt of an individual and doles out punishment without a judicial trial. The state legislatures and Congress are forbidden by Article 1, sections 9 and 10 of the Constitution to pass such acts. This is an important ingredient of the separation of powers.
- The claimed right of executive officials to refuse to appear before, or to withhold information from, the legislature or courts on the grounds that the information is confidential and would damage the national interest. For example, President Nixon refused, unsuccessfully, to surrender his subpoenaed White House tapes by claiming executive privilege.
Executive Order -
This critical instrument of active presidential power is nowhere defined in the Constitution but generally is construed as a presidential directive that becomes law without prior congressional approval. The power for the executive order is implied in Article II of the Constitution when it allots "executive power" to the president:
"The executive power shall be vested in a president of the United States of America." - Article II, section 1
"[The President] shall take care that the laws be faithfully executed..." - Article II, section 3
- The guarantee in the Fifth Amendment to the Constitution that one may not be tried twice for the same crime. For example, an individual declared not guilty of murdering a neighbor cannot be tried again for that murder. The person is not, however, exempt from being tried for the murder of another individual.
- A court order directing a police officer, sheriff, or warden who has a person in custody to bring the prisoner before a judge and show sufficient cause for his or her detention. Designed to prevent illegal arrests and unlawful imprisonment. A Latin term meaning "you shall have the body".
- A formal accusation against a public official by the lower house of a legislative body. Impeachment is merely an accusation and not a conviction. Two presidents have been impeached, Andrew Johnson in 1868 and Bill Clinton in 1998. Neither was convicted. In the case of Johnson, the Senate failed by one vote to obtain the necessary two-thirds vote required for conviction. In the case of Clinton, fifty senators voted for conviction, again missing the two-thirds requirement.
Ex Post Facto Law
- A law that makes criminal an act that was legal when it was committed, or that increases the penalty for a crime after it has been committed, or that changes the rules of evidence to make conviction easier; a retroactive criminal law. A Latin term meaning "after the fact." The state legislatures and Congress are forbidden to pass such laws by Article I, section 9 and 10 of the Constitution.
Other Sources of Information:
The Constitution of the United States Site contains the actual text of the Constitution as well as links to information on the Founding Fathers, the 39 Delegates who signed the Constitution, an in-depth look at the Constitutional Convention and the ratification process, and questions and answers pertaining to the Constitution. Online from the National Archives and Records Administration (NARA).
About the Constitution History and background on the Constitution, as well as the Articles of Confederation. Online from the Library of Congress.