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Constitution and Supreme Court
Unit 5C: Governing the USA
David Houghton
The Lecturer in Government at University of Essex writes for BBC Parliament

The Supreme Court
Pillars of US political power

This section introduces the core principles of the American political system as embodied in the US constitution, and in particular the role played by the Supreme Court.

The most important organising principle of that system is the separation of powers: horizontally, the system was deliberately set up so the three main branches of the federal government (Congress, the presidency and the Supreme Court) effectively counterbalance one another.

ALSO IN THIS SECTION: Unit 5C - Governing the USA

Vertically, power is also divided up between the federal, state and local levels of government.

Hence the idea of checks and balances: each unit of government is set up in so that no one unit becomes predominant - precisely the intention of the Framers (or Founding Fathers) of the Constitution, who feared the threat posed by all powerful monarchs (or leaders of any kind) to personal liberty and self-determination.

Although there have been periods in American history where the system might be said to have broken down - in recent times, Vietnam, Watergate and perhaps Iran-Contra - the checks and balances design can be said to work effectively today.

Although historically there has been a migration of power into the hands of the executive branch in a way which the Founding Fathers did not foresee, Congress and the Supreme Court continue to enjoy significant powers in relation to the presidency.

The broad spirit of the constitution therefore continues to exercise very real constraints on American politics today, as of course do many of its specific provisions (such as the 22nd amendment stating that presidents may serve a maximum of two terms in office, which prevented both Presidents Reagan and Clinton from running for a third term).

Constitution updated

The first ten amendments to the constitution (known collectively as the Bill of Rights) mostly specify what powers government does not have and what government may not do to the citizen. Other amendments take this form as well.

The 14th Amendment, for instance, grants the right of due process under the law: for example, US citizens may not be imprisoned without trial, property cannot be confiscated without legal cause and cruel and unusual punishments cannot be imposed.

It is also important to recognise that the constitution has proved rather flexible over time, permitting (for instance) an expansion in the size of the federal government since the 1930s that would have greatly surprised the Founding Fathers (who believed in minimal government).

The constitutional document is, for various reasons, vaguely worded in a number of places, and there are consequently grey areas within it - notably those provisions relating to the powers of the federal versus the state levels, how powerful the president should be and who has the power to initiate war.

This imprecision puts enormous power in the hands of the Supreme Court, because in practice it is often the Supreme Court which decides what the constitution is to mean.

This also means that the Court is inevitably compelled to become involved in what are highly contentious political issues: many questions having to do with race and civil rights, free speech, religious expression, federalism, abortion, the powers of Congress, congressional boundaries, term limits and the powers of the president - to give just a few examples - have been decided by the Supreme Court in recent years.

This power is known as the power of judicial review, since it is essentially the power to review the actions of the other two branches of government, and to strike these down as 'unconstitutional' where the Court deems this appropriate.

The Supreme Court hence plays an important policy making role in the United States in a way that the British courts generally do not. It is important to realise that it is in this sense both an independent power and an inherently political body.

David Houghton 2004
University of Essex


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