Essentials Features of USA Constitution. The United States Constitution is an amazing document. A bold experiment in democracy more than 200 years ago, it has proved both stable and flexible enough to survive and remain effective in a world totally different from the one in which it was written.
Constitution as a Document:-
The Constitution that emerged from the Philadelphia Convention was a model of draftsmanship, of linguistic elegance, of brevity, end of apparent clarity. It could not be otherwise, for it was designed to bring unity into the diversity of the new nation. Its provisions were built ground several fundamental principles enshrined in the Declaration of Independence and upon these principles the American governmental system hes since operated. So enduring and inspiring are these principles that the Constitution has, for more than two centuries now withstood the onslaughts of time and has served the country in war and peace, in calm and crisis, without fundamental change; 73 of the original 84 clauses of the Constitution stand exactly as they came from the fluent pen of Gouverneur Morris.
The people of the United States have so much abiding faith mm the sagacity, moderation, and sense of the possible shown by the makers of the Constitution that the original document is virtually worshiped. Until 1952, it was kept, along with the Declaration of Independence, in an illuminated shrine in the Library of Congress. Both these documents are now housed in the National Archives building in a stronghold believed adequate to protect not only against the moth, the rust, the thieves but the atom bomb. The words of Max Lerner are typical of the feelings of every, American for their Constitution and its makers.
He writes, Here was the document into which the Founding Father had poured their wisdom & into a vessel, the Fathers themselves grew ever leer in stature as they receded from view, the era in which they lived and fought became a Golden Age. In that Age there had been a fresh Gee of the world and its men were giants the sky; what they had fought for was abstracted from its living context and became a set of principle eternally true and universally applicable.
The Constitution ton of the United States ts the oldest written Constitution in existence and the shortest of the Constitution of any other nation, except the Chinese. It contains only 4,000 words, occupying ten or twelve pages in print which can be read in half an hour.
Never was it in the minds of the Fathers of the Constitution to work out in all details a complete and final scheme of government for the generations to come. They sought merely a starting point and provided a skeleton to be clothed with flesh by customs, exigencies, national emergencies, economic development, and various other factors affecting the welfare of the nation. The Constitution is, thus, a living document; growing, developing and expanding,and it will continue to grow while the nation endures.
Gladstone called the Constitution of the United States, the most wonderful work ever struck off at a given time by the brain and purpose of man. But actually its roots go deep, into the past. Some of its provisions are traceable to the Magna Carta and for other its authors drew ideas from the writings of John Locke, Montesquieu and Blackstone. Some basic concepts had an even more ancient origin, as the doctrine of consent. Following arc the fundamental principles and distinctive features of the Constitution.
Essentials Features of US Constitution:-
The Declaration of Independence of 4th July 1776 was the first formal State Paper –it is here that the term United States was for the first time officially used.
Popular Sovereignty:-
A prime feature of the Constitution is that it gives recognition to the principle of popular sovereignty. The right of the people to ordain, abolish and alter their own institutions of government was asserted in the Declaration of Independence. This inalienable right of the people received constitutional sanctity and the Preamble declares that,
“we the people of the United States……do ordain and establish this Constitution for the United States of America.”
The Constitution also provides the methods by which it may be altered or abolished and to institute new form and organs of government which are most likely to guarantee the safety and welfare of the people. it means that the voice of the people is supreme in all matters of political determination in the United States and they reign, said de Tocqueville, as Deity does in the Universe.
The doctrine of popular sovereignty attributes ultimate sovereignty to the people and consequently substitutes constitutional system of government for arbitrary and despotic authority of any kind. When it is recognized that the people are the safest depository of supreme power and that the will of the people is a better guarantee of wise, efficient, and moderate government, it really means respect for human rights, and in the language of Abraham Lincoln,
a government of the people, by the people and for the people.
The American system, James Madison said,
is based on that honorable determination which animates every votary of freedom to rest our political experiments on the capacity of mankind for self-government.
Since the incorporation of the doctrine of popular sovereignty in the American Constitution, it has, as Bryce said,
become the basis and watchword of democracy.
On the concept of popular sovereignty is erected another pillar of democracy. The Preamble states the great objects which the Constitution and the Government established by it are expected to promote national unity, justice, peace at home and abroad, liberty and the general welfare. The early State loyalties were strong and loyalties to the States are still strong, but there is the triumph of the nation and unmatching prosperity of the people built on the bastions of democratic ideals which disdain privileges of all kind.
- The Preamble, in fact, echoes the immortal saying of Thomas Jefferson.
- The Good who gave us life gave us liberty at the same time.
- Error of opinion may be tolerated where reason is left to combat it.
- The earth belongs always to the living generation.
- Nothing is unchangeable but the inherent and alienable rights of man.
Limited Government:-
A natural corollary of the doctrine of popular sovereignty is the concept of a limited government, possessing only such powers as have been conferred upon it. The Constitution makers had, indeed, a horror of unlimited power, While assuming that the people were sovereign, the Organization and powers of their government were set forth in written documents. After carefully stating what powers they wished the Federal Government to exercise, they left all residual powers to the States composing the Union. Next, they separated the three branches of government, Executive, Legislative and Judiciary, and made them to operate with elaborate checks and balances.
The Constitution also imposed Certain positive restraints on all public authorities in the country, high and low, by setting limits and bounds to the actions they might take and the manner in which they exercise their powers, These limitations are designed to protect the person, property and civil liberties of the individual against arbitrary encroachment by government officials. In some matters the individual is protected against the Central Government, in Others against State and Local governments, and in still others against all governments, Central, State and Local.
The Fifth and Fourteenth Amendments together forbid Congress and State Legislatures to deprive any person of life, liberty, or property without due process of law. In a strict sense every line in the Constitution is a vindication of the sovereign rights of the people and a limitation on Government.
In framing a government which ts to be administered by men over men, wrote Madison, the great difficulty lies in this You must first enable the government to control the governed; and in the next place oblige it to control itself. In this sense the Constitution serves a dual function. It is a positive instrument of government enabling the Governors to control the governed. It is also a restraint on the Government, a device by which the governed check the Governors.
Federal System :-
The delegates at the Philadelphia Convention met to find means for establishing an effective national government. At the same time, there was no serious discussion in the Convention of proposals which might have lowered the dignity of the individual States, It is true that Hamilton pleaded for subjecting the State Governments to rather complete Central control but while many applauded his eloquence and admired his youthful brilliance, none followed his suggestion.
They knew that the overwhelming majority of the people were too much deeply attached to their State Governments and they would not permit a scheme of government aiming at their complete subordination to a Central Government. The framers of the Constitution were, therefore, confronted with a difficult task how to make the Central Government strong enough for its duties without impairing rights of States; how to preserve the integrity of the States without weakening the Central Government. By heroic efforts they devised a plan of government which now carries the nomenclature of a federation.
The Fathers of the Constitution, thus, established a dual system of government within the States of the United States of America. There is the National Government with a complete set of its own governmental agencies Legislative, Executive, and Judicial exercising powers delegated to it by the Constitution which are of common national interest. Paralleling this system in each State is another complete set of Legislative, Executive and Judicial organs acting upon the persons within that State and exercising the residuary powers, that is, the powers not delegated to the National Government or denied to the States by the Constitution. Under the Constitution, therefore, the National Government is one of enumerated powers only. Residuary powers rest with the State Governments. Each of these two sets of Government within its own sphere is autonomous and independent; neither encroaching on the other. If any change ts desired to be made in the division of powers it can be done only by amending the Constitution and the method of amendment is provided in the Constitution.
Fears and doubts in the minds of the people existed at the time of the adoption of the Constitution about the practicability of the federal union. Before 1861, lively arguments were waged over whether a State composing the Union had a constitutional right to secede. But the Civil War settled once for all this controversial issue. As the Supreme Court declared in Texas V. White (1869). The Constitution in all its provisions looks to an indestructible union, composed of indestructible states, No State, therefore, can break its constitutional bonds, for the Union is perpetual and indissoluble.
The United States of America is today the oldest federal union in existence. In fact, this type of polity originated therefrom. So successful it has been that many other countries have followed the American model. Quite a sizeable number of people spread all the world over even visualize a world organized on federal basis.
Federal Supremacy:-
Though the powers of the federal government are enumerated, yet federal law within its sphere is supreme over all state laws, This was the imperative necessity which the Fathers of the Constitution had fully realized. A federal union establishes two sets of government, each independent within its own sphere of jurisdiction. With demarcated powers and authority, conflicts ’ between the National and State Governments are bound to arise and that, too, frequently. Such disputes might threaten the union if the Constitution does not provide for their settlement.
The Constitution of the United States provides that disputes arising between the National Government and the State Governments must be settled in the Federal Courts. To guide judges in their decisions, the Constitution says:
The Constitution, and the laws of the United States……and all treaties………..shall be the supreme law of the land……… It means that the Federal Constitution is paramount over all forms of law, State or National.
Federal law, therefore, if validly enacted under the Constitution, ranks above the State Law. State Laws which conflict with the National laws or treaties may be declared unconstitutional ; and the Supreme Court at Washing- ton is the tribunal of last resort for deciding all cases of conflict of jurisdiction between the Federal and State authorities. But treaties and Acts of Congress must be in accordance with and in conformity to the Constitution if they are to out-rank State Constitutions and laws. Compared with one another, Acts of Congress and treaties are on a plane of equality. If one conflicts with another, the measure passed most recently prevails.
A good example of the operation of the Federal supremacy occurred in 1956, when by a 6 to 3 vote the Supreme Court declared the Pennsylvania Sedition Act null and void on the ground that by passing numerous Federal sedition laws Congress had occupied the field to the exclusion of parallel state legislation. The Court also held that dominant interest of the Federal Government in protecting the nation against subversion, and the possibility that the administration of State sedition laws would conflict with the operation of the federal plan were further reasons for declaring the Pennsylvania Sedition Act inoperative.
Separation of Powers:-
That the three functions of Government Legislative, Executive and Judicial must each be vested in a separate organ or department seemed to most Americans as undebatable as the laws of nature, James Madison wrote, in the Federalist
No political truth is certainly of greater intrinsic value or is stamped with the authority of more enlightened patrons of liberty, than that………: she accumulation of all powers legislative, executive and judiciary—in the same hands…..may justly be pronounced the very definition of tyranny.
The theory of limited government, which formed the basis of political thought of that time, presupposed separating the three branches of government in order to prevent tyranny and absolutism. The Framers of the Constitution had, accordingly, no hesitancy about invoking the principle that political direction of authority should not concentrate in any one of the branches of government. They had rebelled against the tyranny of the British Government and wished to prevent such rulers from coming to power in the United States.
There is in the Constitution itself no direct statement of the doctrine of Separation of Powers. It is inferred from the opening sentence of each of the Constitution’s three Articles. Article One gins by saying
All legislative powers herein granted shall be vested in a Congress of the United States………..
Article Two begins with the statement that, The Executive power shall be vested in a President of the United States of America. Article Three states, The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The Constitution-makers, thus, provided that the operation of each of the three processes of government should be entrusted to a separate agency. The Legislative process be operated by an independent Congress, the Executive process by an independent President and the Judicial process by an independent Supreme Court and subordinate courts.
On the basis of this arrangement the doctrine of Separation of Powers has from the first been early established as a principle of governmental organization in the United States and it has been enforced by the courts exactly as any other legal rule. One of the many statements of it is found in the judgment of the Supreme Court in Kalbourn Vs Thompson. The Court declared, It is believed to be one of the chief merils of the American system of written constitutional law that all powers entrusted to government, whether state or national, are divided into three grand departments the Executive, the Legislative and the Judicial; that the functions appropriate to each of these branches of government shall be vested in a separate body of public servants; and that the perfection of the system requires that the lines which separate and divide these departments shall be broadly and clearly defined. It is also essential to the successful working of this system – that the persons entrusted with power in any one of these branches shall not be permitted to encroach upon the powers confided to others but that each shall by the law of its creation be limited to its own department and no other.
Checks and Balances:-
But even the most convinced believers in the doctrine of the Separation of Powers acknowledged that an absolute separation of the three departments of government would make government itself impossible. Madison, the ardent advocate of the doctrine of Separation of Powers, wrote in the Federalist, that the principle does not require that the legislative, executive and judiciary departments should be wholly unconnected with each other. He proceeded to prove that unless these three departments be so far connected and blended as to give each constitutional control over the others, the degree of separation which the maxim requires as essential to a free government can never in practice be duly maintained. Unlimited power, it was argued, was always dangerous and the very definition of tyranny unless power was made a check to power. It could also be possible that different officials exercising different kinds of powers might pool their authority together and act in a tyrannical, way.
The Framers of the Constitution, accordingly, introduced modification to the doctrine of Separation of powers when they came to details by setting up what are called checks and balances, Having divided government into a threefold process and having assigned to each process a supposedly independent branch, the Philadelphia Convention authorized a very considerable amount of participation in, or checking of the affairs of each branch by the other two.
Expressed in simple words, instead of complete separation of the three branches of government, each was given enough authority in other functional areas to give it a check on its companion branches. The object was to make exercise of power limited, controlled and diffused. The final constitutional arrangement, thus, gives to each Department of government exclusive powers appropriate to that Department, but at the same time, these powers are shared by other Departments lest it should corrupt those who wield power.
The Legislative branch is checked by President through his veto power but Congress, if it can muster a two-thirds vote, may enforce its view by overriding his veto. The Constitution also armed the President with another kind of veto, described as pocket veto. This veto kills a Bill presented to the President for his signature if he docs not assent thereto within a period of ten days and in the meantime Congress adjourns.
The President is, thus, able to check Congress. The Legislative Department, in its turn, checks the Executive through its powers to appropriate money and to impeach. The Senate confirms the appointments made by the President and approves treaties made by him. The President can declare war on the authority and approval of Congress. The Supreme Court depends upon Congress i several respects, for instance, appropriations and appellate jurisdiction as also for the number of justices who serve on that tribunal. Congress may impeach and remove federal judges from office.
The President is empowered to appoint Judges of the Supreme Court, and grant pardons, reprieves, commutations and amnesties. And the Supreme Court, shortly after the Constitution became operative, developed the practice of ruling on the validity of Acts passed by Congress and approved by the President. Such a system of checks and balances has been described by Bryce
The ultimate fountain of power, popular sovereignty, always flows full and strong welling up from its deep source, but it is thereafter diverted into many channels, each of which is so confined by skillfully constructed embankments that it cannot overflow, the watch full hand of the judiciary being ready to mend the bank at any point where the stream threatens to break through.
No feature of American Government, national, state and often local, writes Frederic Ogg,
is more characteristic than the separation of Powers, combined with precautionary checks and balances.
He further adds, Nothing quite like it can be found in any other leading country of the world. It was not the intention of Montesquieu, the author of the concept of Separation of Powers, to neatly divide the powers of government into three separate and distinct departments. What precisely he desired to establish was that power should be a check to power, and in accordance with this dictum the Framers of the American Constitution divided government into three distinct departments and wove an intricate system of checks and balances in order to avoid tyranny emanating from any source.
They were thinking not alone of the tyranny of a monarch, as Montesquieu had thought, but the possible tyranny of the people or even of majority under a system of majority rule. They knew, as we do, that no drug and no beverage is more intoxicating than power over men and that intoxicated men are not to be trusted as unrestrained rulers.
The Framers had, thus, a deep horror of the tyranny of the majority rule and they were not disposed to make any exception for a government conducted in the name of the people themselves. If the proper checks and balances are maintained no group is permitted to dominate and the programme of government is refined by the consideration from varied points of view.
The arrangement of government as established by the Constitution was designed to promote co-operation among the three branches of government as well as checking and balancing them. Without it the machinery of government, the Constitution Framers thought, would break down. But in actual practice, the system of checks and balances has prevented unity, frustrated leadership, divided responsibility and slowed up action.
Not all the objects which the Fathers had in view, says Herman Finer, have been realized, but their main intention, effectively to separate the powers, has been achieved; for they destroyed the concept of leadership in government which is now so important in the present age of ministrant politics. By establishing the Presidential system of government, the Fathers of the Constitution, adds Finer,
Separate the executive sources of knowledge from the legislative center of their application; severed the connection between those who ask for supplies and those who have the power to grant them introduced the continuous possibility of contest between two legislative branches; created in each the necessity for separate leadership in their see rate business; and made this leadership independent of the existence and functions of the executive.
With powers divided between the executive and Legislative Department without, any means of proper co-ore ways inordinate delay to arrive at an agreement even on pressing matters which demand expeditious disposal One branch of government may be operating on one policy whereas the other two may follow quite a different one, particularly when the Executive belongs to one party and the Congressional majority to another.
Some Presidents have succeeded to bridge the gap separating them from the Legislature, but while an emergency may bring temporary co-ordination, and the use of patronage can usually be counted upon to Pave the way to some action, the national government is still torn into parts by the provision which the framers made for separation of powers.
From the very beginning of the establishment of the Union, Congress has always emphasized its independent existence and its independent will. Whenever there had been unity of purpose and unity of will, as in an emergency like that of 1933, or during the two World Wars, Congress reasserted itself either by rejecting or by altering or modifying Presidential measures. And very often it does so to draw attention to itself that he the President) is not the unqualified gangster of the nation. When in 1940 the United States became more and more involved in the Second World War, Congress conferred immense powers on the President. Protests soon followed both in Congress and outside that the President was gathering legislative power into his own hands violating the doctrine that the powers of government are separated by the Constitution.
It was partly in response to this criticism that the new Congress, which commenced its life in January 1943 exhibited a revolt against the leadership of Roosevelt by rejecting many proposals which the President had recommended and accepting many Bills to which the President had objected including the two fundamental Acts which he had voted Final remarks, Legislative procedure had come to differ essentially from that in Britain and Franc financial procedure is worlds apart, there is on co-ordination of political energy or responsibility, but each branch has its own derivation and its morsel of responsibility. All is designed to check the majority, and the end is achieved,But, At what cost, Finer puts it.
The cost, he replies, cannot be calculated unfortunately in dollars. And yet the principle of the Separation of Powers, as Professor Beard observes, is indeed a primary feature of American government and is constantly made manifest in the practices of government and politics. Some what ironically, even checks and balances designed to promote over all equilibrium, often operate rather to aggravate than to ameliorate the ill efforts cf separation, as for example, in the case of Presidential veto and senatorial assent to treaties.
Corwin remarks that lately the importance of this doctrine (the Separation of Powers) as a working principle of government under the Constitution has been much diminished by the growth of Presidential leadership in legislation, by the increasing resort by Congress to the practice of delegating what amounts to legislative powers to the President and other administrative agencies, and by the emergence in the fatter of all the three powers of government, according to earlier definitions thereof.
The rise of political parties, a fact which was unforeseen by the Framers of the Constitution, and their functions have tended to redistribute the authority divided by the Constitution and have established the leadership of the Executive to a considerable extent indeed. Congress, too, has, not stood in the way of prompt and forceful action in times of emergencies. It has also on its own initiation delegated to the Executive-the power | of making rules and regulations in the pursuit of positive governmental programmes, and all such rules and regulations have the effect of statute law.
Still there are limits beyond which the breaking down of the division cannot be permitted to go. Congress can delegate to the President a great deal of power, but it cannot abdicate its legislative authority to him. Even if it does, as Congress did in 1933, the Supreme Court intervenes declaring such delegation of authority void. The Supreme Court held in Field Cherk ( 1892), that the Congress cannot delegate legislative power to the President is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution.
The Court in 1935, unanimously invalidated the National Industrial Recovery Act partly on the ground shat Congress had by that law delegated to the President its power to make what amounted to laws and, consequently, such a delegation of authority Violated the principle of the Separation of Powers. However, the Court’s subsequent policy has been to permit administrative rule making provided the terms of the law are reasonably specific. And what is reasonably specific is, again, determined by the Court.
Both the principles of American government Separation of Powers and checks and balances have frequently been a cause of confusion and conflict. They have resulted in great variations in the relationship between the President and Congress, variations in terms of personalities as well as external events.
It is also impossible to deny, as Woodrow Wilson remarked, that this division of authority and concealment of responsibility are calculated to subject the government to a very distressing paralysis in moments of emergency. Certainly, the Separation of Powers had been used, at various periods of American History to check and balance government so effectively that nothing could be accomplished even when the need for governmental action was most apparent.
The more power is divided the more irresponsible it becomes. Power and accountability are the essential constituents of a good government. And today, when the area of governmental activity has broadened so enormously, can the system of Separation of Powers and checks and balances be reconciled with the need for strong, effective and responsible government ?
This issue was brought into the forum Of serious discussion by Woodrow Wilson’s Congressional Government, and since then many Proposals designed to bring about greater harmony in the Executive and Legislative Departments have been suggested. Woodrow Wilson had urged the superiority of a reasonable Cabinet system of government and his doctrine has bean championed by effective writers. A few have, on the contrary, wielded the cudgels in defense of the American system.
Some suggest a compromise by establishing a joint executive legislative Cabinet, that is, the Representatives and Senators should be included in the President’s Cabinet Still others suggest that Secretariat of the Government (Cabinet members) may be permitted to appear in the two Houses of Congress to explain Government’s programme and policy, and answer questions, A few advocate changing the Constitution to prevent the Supreme Court from declaring law unconstitutional, Nothing tangible has come out so far although under the existing conditions the Separation of Powers on the whole is working better than the Framers could have foreseen.
The system of checks and balances has been greatly modified by the political parties. Political parties join what the Founding Fathers had separated. The increasing important function of the President as legislative leader and other aspects of American political process owe their existence to adjustments necessitated by the Separation of Powers.
Summing up the system of Separation of Powers and checks and balances, William Havard remarks,
The system as a whole is a going one despite s certain cumbersomeness in its general operation; to attempt to shift to some of parliamentary government, as a great many critics have urged, would seem to be as uncertain in practical effect as it is unlikely in terms of political feasibility.
Presidential Type of Government:-
The system of government emerging from the principles of Separation of Powers and limited government is quite different from parliamentary democracy. Americans separated their institutions of government whereas there was fusion of governmental institutions in Britain, There was another important factor which influenced the deliberations of the Philadelphia Convention, Parliamentary democracy is unworkable without distinct political parties, each with its own programme and platform. The Framers of the Constitution forthwith rejected such a system of government which weakened national solidarity and created sharp cleavages and narrow loyalties. They strove to establish an energetic yet dignified Executive capable of enforcing laws firmly and one that should lend a note of stability.
That is the Presidential Government:-
It is a single Executive. The President combining the functions of the Head of the State and Head of the Government. He is responsible to the people who elected him an to the Constitution to which he swore alliance when he took office. He has no seat in the legislature and is not accountable to that body. Nor does he depend upon it for the retention of his office; it goes by calendar. The Secretariat appoints and make his Cabinet and over Which he presides, is not what Walter Bagehot called a
Committee of the House of Commons.
They arc the President’s nominees, appointed by him and responsible to him; it is his family. If any one is a member of the legislature at the time of his appointment, he must resign his seat therefrom before accepting such an appointment. The Executive department is, therefore, independent of and co-ordinate with the Legislative department and, as such, this system of government is the negation of Parliamentary system which joins the two, the Executive and the Legislative departments.
A Rigid Constitution:-
A Constitution that is written and establishes two sets of government with defined powers and both are equal in status, must be rigid. The procedure for amending it is prescribed in the Constitution and is distinct from the procedure adopted in making a statutory law. The amendment of the Constitution also necessitates participation of both sets of government. It is, consequently, unlike that of Britain. The Constitution provides two definite methods for amending it and we discuss these methods in the later part of this Chapter. The methods are extremely elaborate and rigid and account for only twenty six amendments during the last 204 years. Yet in spite of its rigidity, it is the remarkable adapt ability of the Constitution that has enabled it to survive the rigours of democratic and industrial revolutions, the turmoils of the Civil War, the tension of a major depression, and the dislocation of the two global Wars.
Judicial Review :-
As a corollary of the twin doctrine of a limited government and Separation of the Powers, there has developed the doctrine of judicial review by which courts exercise the power of annulling any Legislative measure or Executive action which in their opinion goes beyond the Constitution. The federal judiciary acts a guardian of the Constitution. It interprets the constitution and decides the competency of Congress or State legislatures. If in the opinion of the courts a particular act is beyond the authority given to Congress or State legislatures Or that it encroaches upon the domain of either of the two legislatures or seeks to deny or abridge the Civil liberties of the people, then, such an act is declared unconstitutional or ultra vires and hence inoperative.
Similarly, any act of the Executive which is deemed in excess of or beyond its constitutional authority, may be held unconstitutional. When in 1933, Congress in a desperate effort armed the President with large discretionary powers to deal with the economic crisis, the Supreme Court intervened and in the Panama Refining Company V.Ryan held that this was an invalid delegation of legislative power to the Executive.
Another part of the National Industrial Recovery Act authorized the representatives each industry to make codes of fair practices applicable to all members of the industry under the supervision of the President and empowered him to promulgate the codes as law. This provision the Supreme Court also declared void. We think, the court rule that the code making authority thus conferred is an unconstitutional delegation of legislative authority.
The doctrine of judicial review has been subjected to severe criticism during recent times. Its supporters defend it as necessary to preserve a free and limited government, and that it also helps to establish a stable government by guarding against legislative precipitancy and executive arbitrariness. The Critics, on the other hand, assert that the courts infringe upon the Legislative and Executive functions and retard the working of representative government. It is further maintained that the process of judicial review delays pressing social and economic policies so necessary to meet changing conditions. We shall revert to the details of this controversy at its appropriate place.
The Bill of Rights:-
The Constitution as it emerged out of the Philadelphia Convention did not contain the Bill of Rights embodying the rights and liberties of the people. Repeated efforts were made towards the end of the deliberations of the Philadelphia Convention to secure a Bill of Rights to the draft constitution but all failed, Omission, however become such a burning issue that it nearly defeated ratification of the constitution by the States
The Federalists ultimately conceded to the demand of the inclusion of Bill of Rights as soon as the new government was organized and the First Ten Amendments were added to the Constitution in 1791 to constitute the Bill of Rights. In these provisions are enshrined the rights and liberties of the people of the United States. A zone of freedom is, thus, established wherein no government may legally operate.
Although the boundaries So set by Articles incorporating the pill of Rights are by no means self-defining, yet they do whatever can formally be done to safeguard those individual rights which history has found to be the hallmark of a just and free society freedom of speech, of worship, the right of habeas corpus, from arbitrary deprivations except by due process of law, and no unreasonable searches and seizures.
A few peculiarities may be noted. Some rights are mentioned in the body of the Constitution, but most of them are contained in the first Ten Amendments, popularly known as the Bill of Rights. Additional guarantees are made in other amendments, especially the Thirteenth, Fourteenth, Fifteenth, Nineteenth and Twenty fourth.
In addition to the basic rights, the Constitution refers to privileges or immunities, but does not define them. Section I of the Fourteenth Amendment it says, No State shall make or enforce any aw which shall abridge the privileges or immunities of citizens of the United States. Without going into the legal complexities involved, civil rights are guaranteed to all persons whereas privileges and immunities extend only lo citizens of the United States of America.
Although privileges or immunities, write Ferguson and McHenry, have never been completely listed, experience suggests that they incentives to have governmental protection expat on the high seas or in foreign countries; access of except when the nation is at war; have access of Ports of United States, navigable waters and agencies of the Federal Government,including courts of law; run for Federal office and vote for Federal officers; enjoy all rights and advantages secured by treaties; assemble peaceably and petition for redress of grievances; petition for writ of habeas corpus; enter the country and prove Citizenship if questioned, and inform the Federal government of violation of, its laws.
Privileges or immunities such as these, It ts stated, are inherent in national citizenship and cannot be infringed either by the Federal or any State government. Aliens may be permitted to these privileges or immunities as a matter of grace, but they cannot demand them as citizens can.
Rights in the United States are relative and not absolute. The Declaration of Independence refers to natural and inalienable rights and the Constitution too uses words that suggest the Same ideas. For example, the first Amendment Says, Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government fora redress of grievance.
Amendment IX prescribes, The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people. Some Judges of the Supreme Court maintained that the rights conferred by the First Amendment are either absolute or preferred, but the majority view is that rights are relative.
Both the Federal and State governments are forbidden to deprive anyone of life, liberty, or property, without the due process of law. The due process of law means that anyone suspected of violating the law must be dealt with according to established rules and not arbitrarily.
It also means that the government must be the product of law and powers must be applied not erratically to some people or to others as governors see fit, but uniformly to all people similarly situated. Finally, due process of law means that acts of Legislatures and Executives, both at the Center and the States, must be reasonable. There has been a good deal of controversy over what is reasonable and what is not.
Before 1880, the courts had held that what was reasonable was a political decision and, therefore, reserved to Legislatures and Executives to determine it. Since that time, however, courts have said that the due process of Jaw clauses require the courts to make the final determination as to whether actions or laws are reasonable or not. This has led judges to disagree sharply among themselves and has provoked widespread criticism. Nevertheless, the courts insist that due process of law guarantees both proper procedure and the reasonableness of the law themselves,