The federal constitution of the United States of America (preceded by the provisional order of the first Congress and the articles of federation of 1777) drawn up in 1787, approved in 1788, entered into force on March 4, 1789. Since then it has been revised with 21 amendments, most of which are aimed at making the constitution more democratic (popular election of senators, women’s suffrage, etc.), while the last one is the repeal of a previous one, and the first ten (of 15 December 1791) they can be considered an integral part of the constitution itself and form the so-called Bill of Rights. The spirit that informs it is that of freedom of conscience which, in order to be effective, takes concrete form in the political freedom of the individual, according to the ideas of natural law born within the religious minorities of the era of the Reformation, which presided over the work. state constitutions, and their declarations of rights. The state through the constitution must protect the freedom, life and property of citizens: the rest must be entrusted to the free contract of free men. Only the people are sovereign: only they can change the constitution, and no other body, not even the Congress (this has a right of initiative in this regard, like the parliaments of the states: but for the entry into force of an amendment it is necessary, according to art. 5, a slow and complicated procedure: the 3 / 4 of the states; that is, today, of 36 states). A fundamental guarantee of this freedom and popular sovereignty and a characteristic element of the United States constitution is the very clear separation of powers, as set out by Montesquieu in the Esprit des lois, organized in three separate and independent bodies. From this point of view, the constitution of the United States was an absolutely new fact. Codes of laws which contained declarations of general principles had already been seen; but a written document that determined the nature and authority of all government functions, circumscribed sovereignty and indicated the persons capable of exercising these functions and clearly delimited their powers, did not exist. But the rigor with which that separation was applied was not only the effect of a legacy of the revolution, that is, of the suspicion of a strong executive power, but also of the fear of unbridled democracy. The only popular element was the House of Representatives; the upper house, or senate, was deliberately withdrawn from popular power and represented not the people, but the states; each of which, large or small, has two senators. In the same way, it was desired that the president be elected not by the people but by an intermediate and independent constituency. Again, the constitution was not only the effect of a reaction against the democratic impulse that had produced the revolution, but an instrument aimed at safeguarding property, not only from the exactions of an absolute monarch (the traditional enemy of property in England) but also from a confiscatory legislation of a parliament elected by the people. Census requirements for active electorate existed in most states and the Bill of Rights asserted the equality of all citizens in a much less rhetorically dogmatic manner than the Declaration of Independence.
Legislative power rests with the Senate and the House of Representatives, which together form the Congress, and which are both elected by direct popular vote (the senators after Amendment XVII, of May 31, 1913). The executive consists of the president, elected for four years by an electoral college composed of representatives of each state, in the same proportion with which the states are represented in Congress; in the event of an insufficient majority, the House of Representatives decides (originally the electoral college had to decide independently on the value of rival candidates; but in all recent elections, the results of the struggle of the big parties have been so clear, that the College could not than to register them, and the House of Representatives was not even consulted). Judicial power rests with the Supreme Court, whose members are appointed by the president but are practically immovable, and the federal courts. Congress cannot pass a law that is not countersigned by the president; the president has no legislative initiative, but only a veto: and the Supreme Court can invalidate a law that it declares unconstitutional. In practice, the use of the presidential veto, the custom of giving senators a veto limited to the affairs of their state, mitigates this rigid separation of powers.
The president is not responsible to anyone, and can only be deposed upon accusation by the House of Representatives, and by resolution of the Senate by a two-thirds majority. The president appoints his cabinet with absolute freedom (among the trusted men of his party): there is no countersigning of the ministers or secretaries of state; he has the right to veto laws passed by Congress within ten days of the vote, and his veto can only be invalidated if the law in question is passed again by a two-thirds majority. The president can convene the Congress in extraordinary sessions, adjourn it or extend it only in case of disagreement between the Chambers; has no right of initiative. He is the commander in chief of the military forces, he can enter into treaties with foreign powers (subject, however, to the approval of the Senate, with a majority of two thirds of those present; and, if related to financial transactions, also of the House of Representatives); appoints and dismisses federal officials, including those of the diplomatic and consular service. For senior officials, diplomats, especially judges, the approval of the Senate is required. In case of disturbances of the internal order, the president exercises a limited dictatorship. The president’s relations with Congress take place through “messages” (the first 2 presidents, and then Wilson spoke directly), in which he expresses his opinion on laws to be proposed and elaborated on the initiative of the Congress itself. The president is eligible among American citizens, such by birth, aged 35, residing in the United States for at least 14 years; he remains in office for 4 years and can be re-elected, but G. Washington, by rejecting the third re-election, set an always respected precedent; and even the re-elected presidents were very few: noteworthy are the cases of G. Cleveland, elected in 1884, defeated in 1888 and re-elected in 1892 and of Th. Roosevelt who, who succeeded Mc Kinley in 1901 and re-elected in 1904, reappeared as candidate in 1912. If the president dies while in office, the vice president, who is elected at the same time, but by separate election (amend. XII, September 25, 1804), succeeds him automatically; he is the president of the senate, but he does not exercise any political function, as neither are the members of the cabinet, who are not part of the Congress and are mere advisers to the president and administrators of their respective departments (“presidential” system of government), that is: secretariat state (foreign), treasury, Attorney general, office created in 1789, was put in charge of the Department of Justice in 1870), of the post office (the minister is the Postmaster general), of the navy (1798), of the interior (1849), of agriculture (1889), trade (1903), work. In the event of the deposition, death, resignation or incapacity of the president and vice president, presidential functions are assumed by the ministers, in the order listed here.
Congress meets at least once every year in Washington. The two chambers are independent and have equal rights; thus each of them can place an absolute veto on the laws voted by the other. Each votes and discusses the laws on their own; but all proposed laws (bills) financial must start from the House of Representatives. Only Congress has the legislative initiative. Discussion and deliberation take place more through committees than in plenary sessions. The House of Representatives is elected every two years on the basis of the states, which are represented in it in proportion to the number of residents. The “Territories” have representatives who can speak in Congress, but do not have the right to vote. The distribution of representatives should be reviewed after each census; but the tendency to postpone this revision prevails. Within the states, the distribution of seats in Congress is decided by local parliaments. Eligible are citizens of twenty-five, citizens for seven years, resident in the state they represent – practically they must actually reside in the district that elects them – so that more than representatives they are delegates; the residency clause is a limitation to the free choice of the people for all politicians other than the president, as a politician who is not re-elected in his own constituency cannot appear in another, and a politician opposing the dominant political party in the country where he resides has no possibility of reaching Congress, etc. Congressmen cannot be federal officials. The House of Representatives elects a president (speaker) who directs the discussion, and until 1911 appointed all the commissions.
The Senate is made up of ninety-six members, two from each of the forty-eight states, elected for six years; but so that the Senate is renewed for ⅓ every two years. They must be at least thirty years old, have been American citizens for nine; they are elected with different systems according to the individual states. There is much greater freedom of discussion in the Senate than in the House of Representatives; there is no time limitation to speeches, neither for the duration nor for the subject (in 1917 a regulation was introduced by which two thirds of the Senate can impose the closure of a speech) which, together with the need for two thirds of the votes of the senate for the approval of the treaties, gave this body a great importance especially for foreign policy (to escape this constitutional clause, President Th. Roosevelt made “deals”; well known is President Wilson’s disavowal of the Treaty of Versailles and the League of Nations); it also interferes in the internal administration with the supervision of the appointments of officials.
One of the earliest and most important developments in US constitutional law is the power, assumed by the Supreme Court, to declare laws passed by Congress or any state unconstitutional. This authority was not founded on the constitution and had but few and not undisputed precedents; but it was affirmed by the supreme judge John Marshall, conservative (federalist) in the historic Madison-Marbury dispute (1803). In a series of trials, from 1893 onwards, the cases of annulment were multiplied by the Supreme Court, thus becoming one of the main organs of American constitutional and political life, guardian and interpreter of the constitution. Many of the overturned laws, in which the Supreme Court was extraordinarily conservative, were social laws – which naturally aroused lively opposition. not only because such laws responded to popular sentiment, but because the Supreme Court often ruled them against the Fourteenth Amendment, which prohibits a state from depriving any person of life, liberty or property without due legal process. Now, this amendment was only aimed at guaranteeing the rights of Negroes freed from slavery; and the Supreme Court gave the concept of property a very broad interpretation, including in it the right to contract obligations, even under conditions that the new social laws prohibited, recognizing the inferiority of one of the parties. In declaring other federal laws contrary to the constitution, the Supreme Court relied on the principle of limiting the powers of Congress, holding that the enumeration of these powers in the constitution is mandatory, and interpreting these too – eg. to regulate trade between states – in a restrictive manner. With this the Court was merely interpreting the text of the constitution; but in other cases it was based on an implicit norm, the one that prohibits any delegation of powers by the Congress to the president, as this would violate the principle of the clear separation of powers, which is the basis of the constitution itself. This power of the Supreme Court contains in itself a wide possibility of extending the interpretations from the legal field to the political one and in this way it ends up indirectly exercising legislative functions: the protection of the fundamental rights of the citizen has developed into a “supremacy judicial “(justicial supremacy: Bryce). The issue was serious rebuilt recently, with the invalidation of the laws of President FD Roosevelt national reconstruction: the New Recovery Act (N. R. A.), As it would represent an interference of federal power in individual states; and the ‘ Agriculture Adjustment Act (A. A. A.), as with the limitations on crops, etc., the competence of the federal government is exceeded, which can at the most impose taxes; etc. Opposition to this power of the Supreme Court therefore risks becoming a party matter and the Democrats’ program for the 1936 elections contains a hint of a new amendment to the constitution, which could completely abolish this power, which is also currently a of the characteristics of the American constitution, object of discussion and study also in Europe.
Under the responsibility of the Congress are: national defense, the declaration of war and the conclusion of peace, trade laws, monetary, fiscal, customs, postal administration, laws concerning immigration and the granting of citizenship (one foreigners of age can only acquire it after five years of stay in the United States), maritime law, bankruptcy law, the protection of intellectual property, and with the 18th amendment of 29 January 1919 (repealed by the 21st of 1933) the law on alcohol. Rather than modifying the constitution, the tendency now prevails to equalize the laws of individual states and interpret them jointly, and also to the adoption of uniform laws by various states, in order to obviate the drawbacks of
The functioning of political parties, which is an integral part of the political system of the United States, is now legally regulated. The system of two parties that alternate in power (and that have nothing to do with European or British political parties) interferes in the administration of the state with what remains of the system of replacing officials every time a party succeeds the other in power (spoils system, which from the administration of some states passed into the federal one, first with President Jefferson, and openly with Jackson: v. below: History, p. 578): largely suppressed, electoral expenses have increased enormously; with the elections (think of the local elections, those for the states, those for the Confederation, the large number of elected offices) which have so much importance for American life, and which must be carefully organized, being territorially distributed, in order to forgetting a small area can be of great importance, with party conventions for choosing presidential candidates. Thus the law had to intervene to guarantee all citizens the right to take part in the meetings for the nomination of candidates (primaries): all without distinction to the open primaries, all the members of their respective parties to the closed primaries (the laws are different from state to state): so it is no longer possible for a few party leaders (bosses) to hold in hand, through the appointment of candidates, the whole electoral machine: even the delegates for the electoral committees must be elected by the parties. This sort of public control over the main actions of the parties is all the more important as the parties are linked to certain economic groups.
The constitutions of individual states are typically modeled on that of the United States. Many contain, often with rhetorical expansions, the same statements of principle as found in the Bill of Rights federal and in the Declaration of Independence, and for which the Congress cannot establish a state religion, nor restrict the freedom of religion, speech, press, assembly, petition; it cannot restrict the freedom to carry arms; guarantees the citizen’s freedom against arbitrary searches and seizures; the accusation of a “grand jury” is required to initiate trials for capital crimes or slanderous crimes: guarantees are given to individuals for the criminal procedure; “The powers that are not delegated to the United States by the constitution, nor prohibited by it to the states, are reserved to the different states or to the people”. The differences between the various constitutions lie more in not very important details than in principles or provisions of a fundamental nature. The Civil War ended the discussion on whether the sovereignty of individual states could go so far as to break away from the Union: after the victory of the anti-Secessionists, the United States forms an “indestructible union of indestructible states” (Bryce). The centralization work took place not so much, as we have seen, by jurisdiction, but by economic and administrative means (for example, the Federal aid System and the Federal Grant System which provide subsidies, advances, etc. to governments local civil engineering; national highways; the Federal Reserve Bank System; social assistance, etc.). Many of the state constitutions (eg, those of Oklahoma and California) are very broad and contain matters that are not strictly the subject of constitutional law. After all, the organization of states is analogous to that of federation. Executive power rests with the governor, who has before the parliament (legislatures) the same position as the president in front of Congress. Parliament consists of two chambers, mostly elected by universal suffrage: Nebraska has only one chamber, in California the Senate is elected on the basis of counties, each represented by a single senator. But such organization is not at all necessary. The federal constitution only requires states to be governed by republics; as for the rest, it in no way limits their autonomy. The main differences between state and federal constitutions are: state constitutions have many more amendments than federal constitutions; a referendum is expected in many states for direct popular control of legislation; and for many senior state officials there is direct election rather than governorial appointment. States cannot conclude treaties or alliances with foreign powers, cannot associate with each other, in particular companies or leagues within the Union. Import or export taxes are only allowed with the approval of Congress. The states have jurisdiction over civil law, commercial and exchange law (which has been partially unified), criminal law and criminal procedure; the laws regarding the police, schools, religious institutions are the sole responsibility of the states: in this regard, as is well known, there is an absolute separation of state and church, derived more than from an acceptance of the principle of tolerance, from the history of the formation of the Union and of the individual states; they cannot contravene the constitutionally sanctioned principle of religious freedom. In the interior of states, cities, etc. they have a certain regulatory power, considered as strictly such; although in some places in New England, where the town assembly still functions (town meeting) it is argued by some that it continues the ancient Germanic popular assembly, with not only administrative but truly legislative functions. Each state has autonomous jurisdiction.
The Negroes of America) and to the Asians electoral activity, even without introducing, technically, prohibited “discrimination”. The XVI (February 25, 1913) gives the Congress the powers for the income tax; the seventeenth (May 31, 1913) regulates the election of senators; the XIX (August 26, 1920) institutes women’s suffrage, the XX (February 6, 1933) regulates the entry into office of the president (January 20, instead of March 4) and the Congress.