How are checks used effectively
o Over 200 years of constitution functioning properly and only been amended 27 times indicates branches are checking effectively
o Demonstrated in the recent examples:
1. 2017 – Supreme court case NRLB v. SW General inc. ruled that the president couldn’t make any appointments without consulting and gaining approval from the senate
2. President can veto bills – this can be seen in 2016 where Obama vetoed bill to allow citizens to sue Saudi Arabia for 9/11, which was later overturned in congress
3. Congress can also investigate executive action through committees – House of oversight and government reform investigated Obama administration for possible security failures concerning four American diplomats murdered in Benghazi
Checks aren’t used effectively
o Exploited when government is partisan or divided:
1. Partisan – Republican Congress took only 12 hours of testimony regarding the torture and abuse at the Abu Grahib prison under Bush admin.
2. Divided – 140 hours of testimony against Clinton regarding the use of Christmas card mailing list to find potential campaign donors
o Senates consent powers have been abused to further party agenda rather than limit executive power:
1. Mitch McConnell (senate majority leader) blocking Garland
2. Patrick Leathy: “‘the glacial process as to which Republicans are currently confirming uncontroversial judicial nominees is a failure to carry out the Senate’s constitutional duty of providing advice and consent.”
o Executive branch expanded influence through power of commander and chief by circumventing congress’ right to declare war – Obama and Libya, and can affect legislation through presidential signing of bills – interprets them
Judiciary is largely unchecked
o Supreme court power greatly expanded by Marbury v. Maddison case which gave supreme court right of judicial review
o Alex Locay: “‘justify their decision [Roe v Wade], the Court made up a new right now found in the Constitution: the right to privacy. The founders of course never intended for such rights to exist.”
o Hamilton said: “It may truly be said to have neither force nor will, but merely judgment;
o Justice Thomas said: “With such unchecked judicial power, the court day-by-day, case-by-case, is busy designing the Constitution”
Why is the amendment process a weakness of the Constitution
- Amendment process is long and laborious
- Require super majority in both houses (almost impossible task in this period of hyper-partisanship) as well as ratification then from 3 quarters of the States.
- Out of 11,300 proposed amendments, only 27 have been ratified - important amendments for our society today such as the “Child Labour Amendment” which would prevent all child labour and the “Equal Rights Amendment” which would guarantee rights for all genders have not been ratified
- Of course, as Justice Scalia put it “the constitution is not meant to facilitate change, it is meant to impede it” – the constitution is supposed to be difficult to amend to ensure any changes are applicable universally to any time frame
Why is ambiguity of the Constitution a weakness
- Justices often will interpret the constitution and result in a controversial decision due to the ambiguous meaning behind the text and how it should be interpreted
- Judges will often take either an orginalist approach to interpreting the text, or a living constitution approach – this has sparked debate between liberal judges and originalists over the 8th amendment and whether the death penalty constitutes “cruel and unusual punishment” – Scalia would say no because it wouldn’t have been cruel back then
- However, D.C v Heller resulted in two originalists, Scalia and Stevens, coming to two different conclusions – shows that decisions where actually underpinned by political bias (unclear constitution)
- Other judges take a “living constitution” approach – the constitution doesn’t need amending to keep up to date because our interpretation of the text will reflect the need of society
