The federal Constitution, ratified in 1788, set up three co-equal branches of government: legislature, executive and judiciary. The legislature, assigned the task of creating laws, is the first branch mentioned in the U.S. Constitution. Article 1 of the Constitution lists the duties, powers and limitations of the national legislature, known as Congress. The two houses of Congress, the House of Representatives and the Senate, have immense power and responsibility through their taxing, spending and lawmaking powers. Nevertheless, the founders placed limits on Congressional power out of their fear of any one branch having too much control.
Members of Congress face a limitation of power based on the need to run for re-election. Those serving in the House Representatives have elections every two years. Meanwhile, Senators serve six-year terms. In both cases, the voters hold members accountable for actions in the previous term. The possibility of losing an election can prevent members of Congress from taking political stances at odds with public opinion.
Commander in Chief
Though the Constitution provides Congress with the power to declare war, the same document allocates the responsibility for leading the war to the president. As commander in chief, the president is the head of the American military. In theory, once Congress declares war, the president then assumes the duty of leading the troops. In fact, Congress’ role, since 1942, the last time the nation officially declared war, has become even further limited. Presidents have assumed the authority to send troops into combat prior to Congressional approval and without an official declaration of war.
Congress is the legislative branch, responsible for drafting laws for the nation. Nevertheless, the Supreme Court has the power to strike down any of these laws that conflict, in its opinion, with the nature of the federal Constitution. Known as judicial review, this ability of the Supreme Court to declare laws unconstitutional is not an explicit duty mentioned in the Constitution. The Supreme Court assumed the power in the case of Marbury vs. Madison (1803), and has since been the final decision maker within the government on what the Constitution means.
Article I, Section 9
The founders placed three explicit limitations on Congress within the Constitution in Article 1, Section 9. The first prevents Congress from passing laws ex post facto, which means after the fact in Latin. This provision protects people from prosecution for actions that were not crimes when committed. Secondly, the Constitution denies Congress the ability to pass bills of attainder. These bills would allow the government to prosecute criminals in special tribunals. The founders wanted to ensure that citizens face criminal charges only in regular courts. Last, Congress cannot suspend the writ of habeas corpus, a legal term requiring police to bring defendants before a judge, except during a national emergency, such as war. Instead, people have the right to stand before a judge and learn the criminal charges they face, so they can mount a defense.
- The U.S. Senate: Constitution of the United States, Article 1, Section 2
- Senate: Constitution of the United States, Article 1, Section 3
- Yale Law Journal: Is There an Exclusive Commander-in-Chief Power?
- Supreme Court of the United States: The Court and Constitutional Interpretation
- The U.S. Senate: Constitution of the United States, Article 1, Section 9
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