Nahmod Law

Constitutional Education for Citizens

United States citizens, in my view, have an obligation to understand their government, the Constitution that created it and the Supreme Court‘s role in interpreting the Constitution.

However, I’ve thought for a long time that we in the legal profession and the law schools do a mediocre job, at best, in educating the public about the United States Constitution and the Supreme Court.

What I would like to do in this and in occasional succeeding posts is try to explain, with a minimum of legal jargon, the Constitution and the Supreme Court’s role in interpreting it. Of necessity, these posts will be selective. I cannot cover everything.

This first post addresses the basic structure of our government as created by the Constitution, including separation of powers, checks and balances and federalism.

What is Separation of Powers?

The first three articles of the Constitution create and set out the powers of the three branches of government.

First and foremost, Article I deals with Congress, the lawmaking branch, and its two houses, the Senate  and the House of Representatives. All legislation must be passed by both houses in order to become law. Congress may only act pursuant to its enumerated powers.

Second, Article II deals with the President, elected every four years, who enforces the law and thereby exercises executive powers. The President also has primary responsibility for foreign affairs except insofar as Congress is the branch that declares war. All legislation that is passed by both houses must go to the President for his approval.

Third, Article III creates the Supreme Court, the only non-politically accountable branch, in which is vested the judicial power to decide cases and controversies brought before it. Much more about this in later posts.

What Are Its Purposes?

These three articles thus allocate governmental powers to three branches in order to promote efficiency. But this separation of powers serves another very important purpose: to make it impossible for narrow special interests (called “factions”) to capture the national government. The Framers were concerned, one might say obsessed, with preventing tyranny at the national level.

The political theory was that even if one branch of the national government ever became the captive of a faction, the other branches could step in and stop it. It is for that reason that separation of powers is not absolute: the Framers also provided for checks and balances among the branches. For example, legislation cannot become law without the President’s approval (unless Congress overrides a Presidential veto). Also, legislation must be enforced by the President. Supreme Court justices, and federal judges generally, are nominated by the President and must be approved by the Senate.

When Congress or the President violates separation of powers, it is the Supreme Court that steps in (through litigation) to strike down the unconstitutional conduct. For example, in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)(the famous Steel Seizure Case), the Court struck down the attempt by President Truman to seize the country’s steel mills: this was an unconstitutional exercise by the President of legislative power.

What is Federalism?

The Constitution also sets out the relations between the national government and the States. There are limits to what the federal government can do, and there are limits to what the States can do. In addition, the Tenth Amendment provides that powers not delegated to the national government are reserved to the states or the people.

In the last twenty or so years especially, the Supreme Court has enforced federalism rather aggressively and has, somewhat controversially, several times struck down federal legislation enacted under the Commerce power (one of the enumerated powers) because it encroaches on the States. A good example is United States v. Lopez, 514 U.S. 549 (1995), which held violative of the Commerce Clause the Gun-Free School Zones Act of 1990.

What Are Its Purposes?

Federalism is intended to promote efficiency, democracy and experimentation. But another very important function, like that of separation of powers, is the prevention of tyranny. Under this theory, States can serve as buffers between individual citizens and a possibly tyrannical national government.

A Controversial Issue

Here is one very important, and controversial, question about federalism: to what extent has it been modified by the Civil War and the Thirteenth, Fourteenth and Fifteenth Amendments?

These Amendments gave Congress the power to enforce their provisions against the States and are based on the assumption that it is now the national government that is charged with protecting individual citizens from the tyranny of the States.

The question is whether this acknowledged change in federalism extends beyond the protections of Thirteenth, Fourteenth and Fifteenth Amendment rights to include the powers of Congress under the Commerce Clause, as well as the taxing and spending powers.

It is fair to say that a majority of the current Supreme Court believes the answer to this question is an emphatic NO. In other words, the Framers’ view of the importance of federalism in these other areas–commerce, taxing and spending–continues to govern despite the Thirteenth, Fourteenth and Fifteenth Amendments.