LAWMAKING

Ours is a government of laws, not men. - John Adams, 1779

Constitutions

T o understand lawmaking, it is necessary to first understand the U.S. Constitution, because this is the highest law of the land. Drafted over 200 years ago, this remarkable document is the longest-lasting written constitution in the world. It sets forth the basic framework of our government. It also lists the government's powers, the limits on those powers, and the people's freedoms that cannot be taken away by the government.

Perhaps nothing is more important in the Constitution than the division of lawmaking power among the three branches of government: the executive (the president and federal agencies), the legislative (Congress), and the judiciary (the courts). This division is known as the separation of powers. The executive branch is a lawmaker when it issues rules and executive orders that often have the force of law. The legislative branch uses lawmaking power when it passes laws (also called statutes). The judicial branch establishes laws through its rulings, which may interpret a provision of the Constitution, a statute, or a rule issued by an executive agency.

The three branches operate independently, but each has the power to restrain other branches in a system of checks and balances. The system was designed to prevent any one branch from becoming too powerful and abusing its power. Examples of checks and balances include congressional investigations of actions by the president or other executive officials (as in the Watergate and Iran-Contra affairs), or the prosecution in court of members of Congress or the executive branch for violating the law. Another check is that the president can veto laws passed by Congress.

Perhaps the most visible and important check of one branch on another is the courts' power of judicial review.

This power enables a court to declare void any law passed by Congress or a state legislature that conflicts with the nation's highest law, the Constitution. For example, Congress might pass a law allowing no criticism of itself in any newspaper. If challenged in court, this law would be declared invalid and unconstitutional because it violates the freedom of press guaranteed in the First Amendment to the Constitution.

Integral to the Constitution is the principle of limited government. Just as it restricts the power of the branches, the Constitution also reflects the view that the federal government as a whole should be limited by the power of the states. This division of power between the states and the federal government is known as federalism. The federal powers to make laws are listed in the Constitution and the remaining powers are reserved for the states. As a result, most of our civil and criminal laws are passed by state legislatures or county or city councils. Consequently, many legal differences exist among the states. For example, a 16- year-old can obtain a license to drive a car in some states but not in others.

The principle of limited government is also reflected in the part of the Constitution known as the Bill of Rights. This consists of the first ten amendments added to the Constitution shortly after it was written. The states insisted upon the listing of specific rights of individuals that could not be infringed upon by the federal government. Protecting such rights, the amendments prevent the government from establishing a religion, conducting an unreasonable search, or punishing people in a cruel and unusual manner. Courts have decided that the Bill of Rights restricts state and local governments as well as the federal government.

 

E very state has a constitution or charter and most reflect many of the principles of the federal Constitution. All have different branches of government and follow the principles of separation of powers, checks and balances, and judicial review. Some state constitutions provide greater protection of rights than the federal Constitution. Our system of federalism allows states to do this if they wish. For example, some states have equal rights amendments in their state constitutions guaranteeing women greater rights than they enjoy under the U.S. Constitution, which does not have such an amendment.

The U.S. Constitution and most state constitutions are difficult to change. This is because they reflect a higher law that should not be subject to change without a lot of careful thought, discussion, and debate. The idea was to make these documents as permanent as possible. The Constitution sets forth two methods that can be used to change it. The proposed amendment must be approved either by two-thirds of both houses of Congress or at a convention called by two-thirds of the states. In either case, it must then be ratified by three-fourths of the states. Though this method is time consuming, 26 amendments have been added to the Constitution since it was adopted. These often reflect the changing viewpoints of the people and their representatives over time.

People have attempted to change the Constitution for a number of reasons. One of the most common has been to extend rights that were not originally written into the Constitution. For example, voting rights have been extended through various amendments to minorities, women, and persons aged 18 to 20. At the time of the original Constitution, most states only allowed white males who owned property to vote. An example of a recently proposed amendment that was not adopted is the Equal Rights Amendment, which attempted to revise the wording of the Fourteenth Amendment to specifically include a person's sex as a category to be protected. After Congress passed this proposed amendment, it was not ratified by the required number of states.

 

PROBLEMS

Examine each of the following situations and attempt to determine whether the case involves the principles of separation of powers, checks and balances,judicial review, and/or federalism.

 

a. A state passes a law requiring a prayer at the beginning of each day in all public schools. The courts rule that the law violates the First Amendment's establishment of religion clause.

b. An official in the U.S. Department of Housing and Urban Development is accused of receiving kickbacks of money for making contracts with certain private corporations. She is required to testify before a congressional committee about this and is prosecuted in court.

c. The U.S. Congress passes a law that restricts imports of all handguns from other countries. The legislature in one state allows the sale of handguns to anyone over age 18.

d. Because a prison is very old and overcrowded, a state court orders the state legislature to spend $10 million on a new prison.

 

EXERCISE

 

Your home town has established a lovely park in the city. The city council wishes to preserve some elements of nature, undisturbed by city noise, traffic, pollution, and crowding. It is a place where citizens can go and find grass, trees, flowers, and quiet. In addition, there are playgrounds and picnic areas. The city council enacts a law requiring that at all the entrances to the park the following sign is to be posted: NO VEHICLES IN THE PARK.

 

problem:

The law seems clear but some disputes, have arisen over its interpretation. Interpret the law in the following cases, keeping in mind what the law says (the letter of the law) as well as the legislative intent. Examine the following situations and decide whether or not the vehicle described in each case should be allowed in the park Write down the reasons for your choices.

a. John Smith lives on one side of town and works on the other. He will save ten minutes it he drives through the park.

b. There are many trash barrels in the park for litter to keep the park clean. The sanitation department wants to drive a truck in to collect the trash.

c. Two police cars are chasing a suspected bank robber. If one police car cuts through the park, it can get in front of the suspect's car and trap it between the patrol cars.

d. An ambulance is racing to the hospital with a dying patient. The shortest route is through the park.

e. Some of the children who visit the park want to ride their bicycles there.

f. Mrs. Thomas wants to take her baby to the park in a stroller.

g. A monument is being erected to the town's citizens who died in the Vietnam War. A tank, donated by the government, is to be placed beside the monument

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Željko Rišner, B.A.