U.S.

constitution Notes

Q.1.Features of U.S. Constitution

Introduction and Evolution
The present Federal government of U.S.A came into being in the year of 1789.The United
States comprised of thirteen colonies of Great Britain. In the year 1776, these colonies at
the Atlantic Coast rebelled against the mother country and became independent in
1783.During this period the revolted colonies established the Articles of Confederation as
the first constitution in 1777.
However, this system could not last very long. There was no separate common executive
nor was there any independent judiciary. An effective central government was the
fundamental need of the hour. A convention for the purpose of framing the constitution was
convened at Philadelphia in 1787.Thus the constitution was framed on the basis of this
convention and was signed by the delegates on September 17,1787.This constitution came
into force in 1789.since then it has undergone many changes, one of them being the
increase in the number of states from 13 in 1787 to 50 at present.

Sources
Following are the important sources of the American constitution.
Written Constitution of 1787:
This original constitution was drafted by a convention held at Philadelphia. It came into force
in 1789.
Judicial Decisions
The occasional interpretations of the constitution by the Supreme Court have introduced
many important modifications in the constitutions.
Laws of Congress
The framers of the constitutions laid down only the general outlines of the governmental
structure. The details have been filled in by the laws passed by the congress.
Convention:
A convention is a custom which by long usage has acquired the force or sanctity of the
constitution. These are also an important source of the American Constitution.
Formal Amendments:
During the period of over 170 years, the American constitution has undergone a number of
amendments in the original document.

Features
Following are the salient features of the American constitution:
A)Written Constitution
First prominent feature of the American constitution is that unlike the British Constitution, it
is a written or documentary .It is very brief document and contains about 4000 words and
at least 1012 pages. It consists of preamble and seven articles only. The framers laid
down only the fundamental principles and did not bother about the details. However, this
does not mean that all the rules of the American constitution are to be found only in one
document. It proclaims itself to be the supreme law of the Land.
b)Rigid
Another feature of the American constitution is that it is rigid, which means that it cannot be
amended by the congress by the ordinary procedure. The procedure is very intricate and
difficult. It is, therefore, rightly remarked that it the founding fathers were to return to life
today, they would not find it difficult to recognize handiwork.
c) federal:
Another important feature of the American constitution is that it is federal in structure.
Federalism is a device by which independent states form a union without losing their
identity. The American states are units having autonomous powers; the centre cannot
meddle in their affairs.
d) Separation of powers:
American constitution is based on the principle of separation of powers. The framers of the
constitution believed that the separation of various organs of the government was necessary
to ensure individual liberty and to check despotism. They, therefore, gave the presidential
system to their people. In U.S all the legislative power is enjoyed by the president; he is not
responsible to the legislative. The legislative powers have been vested in the Congress. The
judicial powers are vested in the Supreme Court.
e) Checks and balances
The framers of the U.S constitution were aware that a department, if left unchecked, would
become oppressive. They, therefore, introduced checks and balances n the constitution.
Thus, Congress has been given a share in the executive powers. It can check the presidents
powers of making treaties and appointments. Similarly, the President enjoys the powers of
suspense veto. By using this power he can influence legislation. He also enjoys judicial
powers of giving pardon and reprieve.
f) judicial independence:
The direct consequence of separation of powers is the doctrine of judicial independence. In
United States all the judicial powers are enjoyed by the Supreme Court and other federal
courts, no other office can influence its independence.
g)Judicial Review:
An important feature of the American constitution is the power of judicial Review. The
Supreme court in U.S is supreme not only in theory but also in practice. In U.K no court can
challenge the power of Parliament; however in United States all the laws passed by the
congress and state legislatures are subject to judicial review.

h) Fundamental rights and Liberty:

Another important feature of the American constitution is that it ensures certain
fundamental rights for every America citizen, of which he cannot be deprived by any lawful
authority. Freedom f religious worship, freedom of speech and press, right to assemble
peacefully and property rights etc. are some of the fundamental rights enjoyed by the U.S
citizens.
I) Popular Sovereignty:
The US constitution establishes the popular sovereignty of the people. The preamble of the
constitution runs thus:
We, the people of United States, in order to form a perfect union, establish justice, ensure
domestic tranquility, promote general welfare and secure the blessings of liberty ourselves,
do ordain and establish this constitution for the United States of America
First words---------we, the people of United States..This means that the ultimate seat of
authority in United States is the American people.
j) Limited Government:
Another important feature is the doctrine of limited government. Unlimited powers of the
government would make them despotic which would lead to tyranny and violence. In U.K
the Parliament is supreme whereas in United States the constitution is supreme and the
powers of the government organs are limited.
K) Bicameral Legislature:
In United States, congress is the parliament, which consists of two houses. The Senate and
the House of Representatives. This means that the type of legislation in U.S is bi-cameral.
l) Dual citizenship:
Every American citizen is entitled to the right of dual citizenship. First of all, he is the citizen
of America and secondly he is the citizen of that state in which he lives. The feature of dual
citizenship was introduced in the American constitution by the 4th amendment.

Q. no. 2. Federal System of U.S.A

Federalism, says Dicey is a political contrivance intended to reconcile national unity with
the maintenance of state rights".
He reconciles central control with the maintenance of regional autonomy .
In a federation the states enjoy a considerable measure of autonomy. The form of
government in which there is no regional autonomy is called a unitary state.
True federation posses the following features:
A. There is a constitution, which must necessarily be written and rigid. It must be written
and rigid. It must be written so that it is not open to any misconstruction. It should be rigid
so that the central government cannot change the powers guaranteed to the states easily.

B. There is a division of powers between the centre and the units.

C. There is a supreme court which acts as the guardian of the constitution. It settles the
constitutional disputes, if any, between the centre and states.
The American constitution satisfies all the conditioned mentioned above.
American Scheme of Distribution of Powers:
A) The powers of the national government are listed in the article 1 section 8 of the
constitution. Some of these powers are:
1. Taxation for federal purpose.
2. Borrowing on the nations credit.
3. Regulation of foreign and inter-state commerce.
4. Army and navy
5. Foreign affairs and international treaties.
6. Copy rights
7. Postal service
8. Admission of new states.
9. Currency and Coinage
B) A list of powers prohibited to the national government and a list of powers prohibited to
the states have also been given. The national government, for example, has been prohibited
from meddling with the free exercise f any religion. The states have been prohibited from
entering into an alliance or treaty with any foreign power.
C) All the residuary powers are vested in the states. The 10th amendment expressly
declares, Whatever is not given to the U.S by the constitution, nor prohibited by it to the
states, is reserved to the states respectively or to the people.
The powers of the states have not been enumerated in the constitution whatever is not
given to the centre belongs to the states. The states in the U.S , therefore , have
unremunerated but not unlimited powers.
Features of US federalism:
1. The division of powers is made by the constitution which is both written and rigid.
2. The constitution has provided for a supreme court which acts as the guardian of the
constitution. It is competent enough to settle the constitutional disputes which may arise
between the national government and the states.
3. This type of dual system of powers which we have seen above, is the only one which
could have been possible at the time of framing the constitution. It provides for power for
both the centre and state government .No government in United States has unlimited
powers.
4. The type of federalism which the Americans have today is very much different from the

one which they have started over 200 years ago. As the Americans moved from milepost to
milepost, various American institutions cut new channels and developed new patterns. One
subject which was greatly affected at each stage was the centre-state relationship.
5. Hamilton had predicted it in 1788 that it would always be for easier for the state
government to encroach upon the national authorities than for the national government to
encroach upon the state authorities. . What has actually happened is just the reverse with
the constant increase in the national economy. One significant feature is the rise of the
national government to its present predominant position.
Reasons for the increase in national powers:
i. After the civil war more and more problems requiring the attention of the national
government become apparent.
ii. The question of implied powers is another factor responsible for the growth of national
powers. It has been fully supported by the Supreme Court. Whatever is not prohibited is
constitutional.
iii. The predisposition of Supreme Court in favor of central government.
iv. Labor troubles, floods and epidemics
v. The federal government uses state officials as its gents.
vi. The growth of national press.
vii. The growth of political parties on national lines.
viii. The rise of the country to its present international stature
ix. The growing public demand for state services.
x. Foreign affairs
But all this does not mean that there is not a true federalism in United States. Although the
centre has assumed a predominant position but the original balance of powers has not been
radically altered.
In the words of professor Munroe:
The states are still the pivots around which the whole U.S political system revolves.
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Q. no. 3. Separation of powers in USA:

Separation of powers is an outstanding tradition of the U.S constitution. It means that all
the powers should not be concentrated in the same man or in the same body of men.
As the accumulation of all powers, says Madison, legislature, executive and judiciary in
the same hands may justly be pronounced as the very definition of tyranny.
The Idea that the government divides into three different functions handled by different

branches is old as Aristotle. It was later convincingly propounded by Locke, Blackstone and
others. The first systematic exponent of the idea was a French writer Montesquieu.
In Montesquieu own words
Political liberty is to be found in moderate governmentsconstant experience shows that
every man invested with power is apt to abuse it.To prevent this abuse it is necessary
from the very nature of things that power should be a check to power.
In every government there are three sorts of powers. The legislative, executive and judicial
powers. When the legislative and executive powers are united in the same person or in the
same body of magistrates, there can be no liberty. Again there is no liberty if judicial power
be not separated from the legislative and executive.
Thus in Montesquieus analysis the separation of powers is necessary to ensure individual
liberty. The desirability of separation of powers was also emphasized by the great English
jurist, Blackstone, who wrote:
In all tyrannical governments, the right of making and enforcing laws is vested in one and
the same men or in the same body of men, and wherever these two powers are united
together, there can be no public liberty.
The founding fathers of the U.S constitution were greatly impressed by the separation of
powers. Therefore, they made every effort to divide the power between the three branches
of government fairly evenly. This has been followed also by the American States.
The framers of the U.S constitution believed that the separation of powers was necessary to
prevent absolutism, despotism and other unwanted characteristics. According to the theory
of separation of powers, the executive should never legislate and the legislature should
never try to enforce its own laws. The centre should interpret the laws but it should have no
say in making them.
In United States all the three functions of the government, making of laws, administration of
laws and interpretation of laws have been assigned to three different branches. According to
Article 1 of the U.S constitution, all the legislative powers have been assigned to the
Congress, Article 2 of the U.S constitution states that all the executive power should be
vested in the President. According to Article 3 the judicial power should be vested in the
Supreme Court and other lower courts as the congress may from time to time ordain and
establish.
It is correct that the term separation of powers is not used anywhere in the constitution,
however , all the exclusive language and the fact that the powers are given in three
different articles shows that the powers are separated.
Separate Identity and Independence:
In U.S constitution all the three powers have been given separate identity.
1. The president is elected by the people and the Congress has no say in his election. The
Congress can remove him only through impeachment.

2. The cabinet ministers are neither the members nor they attend the congress sessions.
3. The Congress has full control over the federal legislation. All the bills are moved by the
members in their individual capacity. The president may give his assent or veto a bill.
4. The Supreme Court enjoys all the judicial powers and its independent from undue
interference by other branches of the government has been ensured by the constitution. The
president appoints the federal judges but he cannot remove them.

Q. No. 4 CHECKS AND BALANCES.

Smooth functioning of a government is dependent upon a closer collaboration between all of

its branches. Montesquieu himself had full perception of this requisite. While demarcating
the spheres of these branches, he never contemplated a watertight compartmentalization.
The framers of the constitution while separating the functions of three branches of the govt,
had realized that complete separation was not feasible in practice and they being men of
experience in public affairs, altered their arrangements by adding checks and balances. If
the principle of separation of powers was carried too far, it would have meant deadlocks and
breakdowns,
As Munro says:
The absolute independence of the three great departments of government would inevitably
produce a deadlock and bring governmental activities to a standstill.
The government is a unit and it cannot simply work if different constitutions of the units are
so independent of each other. All the three branches of the government have their separate
spheres of activity. All the powers are not vested in one branch and since all branches are
independent of each other, it is necessary that each branch remains within its limits and it
any branch tries to cross its limits it must be stopped to ensure the independence and
equality of the other two branches.

Advantages of Checks and Balances:

The principle of checks and balances helps to ensure that no branch of govt. acts
autocratically. All the branches of govt. may be checked by one another. No branch can
become despotic and does not interfere in the jurisdiction of the other branches and since
all check each other ultimately balance is maintained and none can assume supreme
powers. Separation of powers secures the independence and equality of all the three
branches rather than curtail their powers.
As Madison observed:
Separation of powers does not mean that the three branches of the government should be
wholly unconnected with each other.

Features of Checks and Balances in U.S Constitution:

1) The president is the chief executive but he can make no appointments without the
approval of the Senate. Thus, Senate can check the president if any of the proposed
appointment is not found proper and therefore has a share in the executive powers.
2) The president can negotiate and conclude treaties with the foreign countries but they do
not become effective unless ratified by the Senate by 2/3rd majority.
3) The Congress is the sole legislative power. All the bills passed by the congress have to be
submitted to the president who may give his assent to a bill or veto it. Thus, he has a check
on the legislative powers of the congress.
4) The congress, on the other hand, can also check the president. The president can be
impeached and removed by the congress.
5) The legislative powers of the congress are checked not only by the president but also by
the Supreme Court. All the laws passed by the congress and assented by the president may
be found against the provisions of the constitution and thus declared ultra vires by the
Supreme Court through its power of judicial review.
6) The Supreme Court itself is checked by the congress, as the congress fixes the numbers
of judges and their pay.
7) Judges are appointed by the president and approved by the senate. A president limited
by the will of congress , says Laski, is always like the sailor on an unwanted sea .
8) Judges are ensured life tenure but even they can be impeached and removed from office.
Thus the powers are separated but lines of connection have also been provided. The
separation of powers with precautionary checks and balances is the most characteristics
feature of the U.S constitution. In the times of emergency the lines of connection have
provided unity under a single leadership. During the U.S participation in world wars, the
American president assumed all legislative powers during the emergency.

Criticism:
The principle of checks and balances has been criticized by many students of the U.S
constitution.
Zink say:
This provision may prevent tyranny but it also leads to conflict and indecision----one
branch of govt. may be operating on one policy while the other two may be following quite a
different course.
It prevents unity , frustrates leadership, divides responsibility and slows down action.
Say Ogg and Ray

 It is argued that the principle of checks and balances tends to concentrate powers in the
hands of judiciary, which can declare any of the laws passed by the congress as void.
Treaty of Versailles was not ratified by the senate in 1920, which was concluded by Wilson
with several of the world leaders. This was too much a check.
It would not be an aggression to say that the U.S constitution is based on the principle of
checks and balances.

Q. no. 5. U.S President.( His Powers and Position)

The government of the United States is of the republican type. This implies that the head of
the state is president. He is not only the head of state but also the chief executive powers
shall be vested in the president of the United States. He should hold his office during a term
of four years. He is the head of state but also the chief executive.
The constitution declares in Art.2, The executive powers shall be vested in the president of
the United States. He should hold his office during a term of four years. He is the head of
executive in name as well as in fact.
Powers and functions:
The U.S president is the most powerful executive of the world. He exercises the greatest
amount of power ever wielded by a man in a democracy.
Prof. Laski correctly summarizes his position, when he says:
The U.S president is both more and less than a king; he is also both more and less than a
Prime Minister.
Dictators and absolute monarchs apart, he is the most powerful single executive in the
world. He is at once the chief formulator of the public policy, the leader of a major political
party, Chief architect of the U.S foreign policy and the chief spokesman of United States in
foreign relations.
It is difficult to believe that the modern presidency was created in this form by the founding
fathers.
They never intended to do anything that would lead directly or indirectly to the
accumulation of powers. What they desired to have a single executive head, a post of honor
and leadership, rather than that of commending authority. The modern presidency is the
result of practical experience.
A. Executive Powers:
1. Chief Administrator: The president is the chief executive. The constitution has entrusted
upon him the responsibility to take care that the laws be faithfully enacted . He is assisted

by different government officials in this task.

2. Powers of appointment: The president appoints all the federal officials with the approval
of senate. Normally the senate does not interfere in the appointment of ministers,
ambassadors and other diplomats. The appointment of the judges of the supreme court in
scrutinized thoroughly.
3. Powers of Removal: The president can remove federal officials in his discretion except the
judges of the Supreme Court who can be removed only through impeachment.
4. Diplomatic Powers: The foreign relations of united states are almost completely under the
general directions of the president, with one very important restrictions that no treaty
concluded by him with a foreign power becomes effective unless passed by the senate by
2/3 rd majority. He is the chief spokesman for United States in foreign relations. He
appointment different ambassadors and diplomats from abroad. He has the sole power to
recognize or reject new states. But all these functions are not performed by him personally.
Most of these tasks are performed by the secretary of state.
5. Role in Defense:
The president is responsible for the defense of the country. He is the chief executive and
supreme commander of the military and as such appoints a large number of high military
officials in his own discretion. Although declaration of war is a matter that falls in the
domain of congress but the president may create such a situation that the declaration of
war becomes inevitable. After the declaration of war he can resort to emergency powers
6. Supervision of administrative powers:
Over the past 200 years the United States has moved from a system of administration
based on a handful of departments to a system manned by almost 3 million people. The
largest expansion has occurred in the field of administrative agencies.

B. Legislative Powers:
The U.S government is based on the principle of separation of powers. This means that
there is no direct relationship between the executive and legislature. Neither the executive
is drawn from the legislature, nor is its term dependent upon the legislature. But absolute
independence would have produced deadlocks.
As Madison observed:
Separation of powers was not to mean that the three branches of the government should
be wholly unconnected with each other.
Thus, by means of checks and balances, a share has been provided in each others powers.
The president can influence the legislation in the following ways:
1. Messages: The Constitution in Art 2 Sec 3 declares that he shall from time to time give
information of the state of the union to the congress . The time, place and manner of
sending these messages to the congress depend upon the discretion of the president. As a
matter of usage, a custom has developed that the president sends a comprehensive
message known as the State of the union message at the time of beginning of every

session in January of each year. This message includes all the proposals items which in the
opinion of the president require the consideration of the congress. Apart from these annual
messages, he may send special messages from time to time. All these proposals by the
president are given consideration by the congress during legislation.
2. Extra ordinary session:
The president has the power to summon both houses of the congress or any one of them on
extra ordinary occasions. The agenda of such sessions is also fixed by the president.
3. Presidential veto: Art 1 sec 7 of the constitution gives the power to the president. All the
bills passed by the congress have to be submitted to the president, who may give his assent
or veto a bill. The bill to which the president withholds his assent is sent back to the house
of its origin along with his objections. If the congress again passes that bill with a 2/3 rd
majority, it becomes a law without the consent of the president.
4. Executive Decrees:
The president has been authorized to issue executive decrees and orders which are valid as
laws.

C. Financial Powers :
The federal budget is proposed by the bureau of budget under the direction of the president.
The director of the bureau remains in contact with the president. The bill is presented in the
congress on the behalf of the president. Generally, the estimates proposed by the president
are approved by the congress. During an emergency the president may spend as much
money as he wants in his own discretion.

D. Judicial Powers:
The president appoints the federal judges with the approval of the senate . The president
grants pardons and general amnesty. Constitution declares in Art 3 Sec 2 that
The president shall have powers to grant reprieves and pardon for the offences against the
United States, except in the cases of impeachment.

E. Miscellaneous Powers:
The president, as head of state, receives foreign heads of the state in his country. As a
leader of his party, he plays an important role in selection of various officials for different
elected bodies. He is an ex-officio member of various bodies.

Conclusion:
Lord Bryce in American commonwealth comments:
The president is the nearest and the dearest substitute for a royal ideal, which the
American possess
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Q.No. 6. U.S Senate

Introduction:

According to W.P Nelson:

The modern senate is , increasingly , a greater forum, an echo-chamber , a theatre where
dreams ---------comedies and tragedies are staged to enhance the careers of its members
and to influence the public policy by means of debate and public investigations.
Responsibility for giving expression to the will of the people of the Unites States has been
entrusted to a bi-cameral legislature called the congress. The senate is the upper house of
the congress. It is more powerful than the House of Representatives. In most other
countries like India, Britain and France the lower house enjoys more powers than the upper
house. In some countries like Switzerland and U.S.S.R (former) the two houses enjoy equal
powers. The U.S senate is the most powerful second chamber in the world.

Composition:

The US senate represents the states of the union on the basics of equality. It is organized
not on the basis of representation of the people according to a mathematical formula but on
the basis of equality of each state as an individual political unit. Each state, irrespective of
its size and population, sends two members to the senate. This equality cannot be denied to
any state. Even a constitutional amendment cannot alter this equality of states. The total
strength of the senate is 100. There are 50 states and each state is represented by two
members in the senate. This principle is also found in Switzerland where each Canton sends
two members to the council of states. The US capital Washington D.C does not have any
seat in the senate.

Election:
The constitution had originally provided for a direct election of the senators.Senators were
elected by the respective state legislatures. But the method has now been changed to a

direct election under the 17th amendment in 1913.

Tenure:
The senators are elected for a term of 6 years, but one third of them retire after every two
years.

Qualification:
The candidate for the senate must be of
Minimum 30 years of age.
US citizen of at least of 9 years standing
Resident of that particular state.
Presiding Officer:

The vice president of U.S.A is the presiding officer of the senate. He is not a member of the
senate. The senate also elects from among its own members a president pro-tempore, who
presides in the absence of vice- president.

Powers and Functions:

1. Legislative Powers:
The US senate enjoys equal legislature powers with the House of Representatives. It does
not merely revise the bills; rather most of bills are originated in the senate. The bills usually
passed by the senate are generally passed by the popular chamber as well. This is because
the members of the lower house pay full respect to the verdict of their party leaders in the
upper house. As regards the money bills, they are originated in the House of
Representatives but the senate has the power to amend the money bills. The amendments
to a money bill may be so many that whole of the money bill may be changed completely.
As a result, the senate has originated many money bills in fact if not in form.

2. Executive powers:
The government of US is based on the theory of separation of powers. But absolute
independence would have meant deadlocks and breakdowns . As
Madison observed:
Separation of powers was not to mean that the three branches of the government should
be wholly unconnected with each other.
To check the tendencies of despotism, a share in each others powers has been given by a
system of checks and balances.

The US senate enjoys considerable measure of executive power as:

The president is the chief executive but he can make no appointments unless approved by
the senate. Thus the senate can check the executive if a proposed appointment is not found
proper. The senate rejected the appointment of Chairman NSC by the president Truman and
that of the secretary of commerce by president Eisenhower
The president can negotiate and conclude treaties with the foreign countries but do not
become effective unless approved by the senate by 2/3rd majority.

3. Judicial powers:
The US does not enjoy the status of a court unlike the British House of Lords. It has the sole
power of impeachment. It can impeach the president, vice-president Judges and other
federal officials.

4. Miscellaneous Powers:
The senate enjoy along with the H.O.R, the power of propose amendments in the
constitution.
During the election of Vice-president, if no candidate gets an absolute majority, the
senators vote for the first two candidates and elect one as the vice-president of the United
States.
The senate can demand information about any administrative measure. This exposes the
weakness of the administration.
US Senate : The most powerful second chamber:
The US senate is decidedly one of the most important institutions in the whole federal
system of the USA. It stands apart to its counterparts in other countries of the world and is
also more powerful than the lower house of the congress. The following factors contribute to
the power of US senate.
Size and Tenure: The senate has 100 members with 6 years tenure while H.O.R has 435
members with 2 years tenure.
Permanent nature: The senate is a permanent body. It never dissolves. The senators are
elected for a term of 6 years but 1/3rd of them retire after every two years.
Special functions: The senate has special privileges such as its power to ratify treaties and
its power of Impeachment.
Equal Legislative powers: The senate enjoys equal legislative powers with the H.O.R
Right of debate: The rules of debate are much liberal in the senate. The senators can go
on speaking to any length.
Investigative powers: The investigative committee of the senate can demand the
information , opinion and seek advice for the purpose of legislation.
Greater influence: The senators are seasoned politicians and have greater skills than their
friends in the lower house. As a result of this they enjoy greater influence among the public.
F.J Haskins says:
There are things which the president and the senate may do without the assent of the
H.O.R and things which the senate and the H.O.R may do without the assent of the

president ,yet the president and the H.O.R can comparatively do a little without the assent
of the senate.

Comparison with other chambers:

1. British H.O.L : it was once a very powerful chamber but now it has become so weak as
compared to the H.O.C that it is described not only as second but a secondary chamber.
H.O. L is a hereditary chamber with more than 100 members .The US senate is a smaller
body, more active and directly elected.
H.O.L has no share in financial legislation. It can merely delay a money bill by one month.
Even an ordinary bill can be simply delayed by one year. The US senate on the other hand
enjoys equal legislative powers with the H.O.R.
H.O.L has absolutely no control over the executive. It has no share in appointments, in
treaty making and in impeachment. Although it is the highest judicial body in the country
but it is not in its capacity as a legislative body.
The US senate enjoys considerable share in the executive powers. It can be said that if US
senate is the most powerful chamber of the world and the British H.O.L is the weakest
chamber of the world.

2. Swiss council of States:

It is organized on the same basis of equality of cantons on which the US senate is
constituted. The two houses of the Swiss federal assembly enjoy equal legislative powers.
No bill becomes a law unless passed by both the houses.

3. Indian Rajiya Sabha:

It is weaker than Lok Sabha, the lower house.
It is indirectly elected; the US senate is directly elected.
The two houses of Indian Parliament enjoy equal powers in the case of impeachment. The
US senate has the sole power of Impeachment.
In case of an ordinary bill, both houses enjoy equal powers. In case of a disputed bill, a
joint session of both houses is held in which the Lok Sabha can get the bill approved due to
its numerical superiority.
The money bills are introduced only in the Lok Sabha. After they get approved , they are
passed to Rajiya Sabha , which may give its own opinion in not more than 14 days , after
which the bill is deemed to have been passed as desired by the Lok Sabha. The US senate
enjoys equal legislative powers with the H.O.R.
Rajiya Sabha has absolutely no control over the ministers who are responsible only to Lok
Sabha. The senate enjoys considerable share in the executive powers.

Conclusion:
It is evident from the above discussion that no other chamber is more powerful than the US
senate. This is exclusive privilege of the American senate. It was looked upon by the
framers as the back bone f the whole federal structure of USA. They wanted to give it a
dominating share. They mentioned it even before the H.O.R in Article 1 of the constitution.
Prof. Lindsay Rogers says:
The American senate has become the most remarkable invention of the US senate with
other 2nd chamber of the world shows that it is like a moon among them all.
------------------------------------------------------------------Q. no. 7. US Superme Court:

Introduction:

No feature of the US constitution has awakened so much curiosity in the European mind,
caused so much discussion, received so much admiration and been more frequently
misunderstood than the duties assigned to the Supreme Court and the functions which it
discharges in guarding the constitution.
Lord Bryce (American commonwealth)
In a federation the existence of a powerful and independent tribunal is necessary. The
constitution of centre and the federating units. The existence of an independent tribunal is
necessary to settle the constitutional disputes which may arise between the centre and the
units and between the units themselves. In Unites States this task is performed by the
Supreme Court which is highest judicial body in the country.

Composition:
The Supreme Court consists of a chief Justice and eight associate judges (1+8). Their
number is not fixed in the constitution. It may vary from time to time.

Appointments:
The judges are appointed by the president with the approval of the senate. The judges
cannot be removed by the president.

Tenure:
The judges hold office for life. Retiring age is 70. If a judge commits a serious crime while in
office, he may be impeached and removed from office like the president. Impeachment is

initiated in the senate.

Congress fixes the number of judges and decides how much salary they would get. The
court can give its decision if majority of the judges (5) agree on it. At least 6 judges should
be there to hear the case.

Jurisdiction:
The Supreme Court has both original and appellate jurisdiction.
a) The cases decided under the original jurisdiction include the following: (1) all the cases
including the federal ministers ambassadors and counsels may be taken directly to the
Supreme Court.
(2) All the cases in which the states are parties i.e State VS. Federation or State vs. State.
b) The cases decided under the appellate jurisdiction are selective. It hears appeals against
the decisions of inferior federal courts and the highest state courts.
c) The Supreme Court can declare any of the federal laws and executive decrees as
unconstitutional if found against the provisions of the constitution. The Supreme court
exercises this authority only when the matter is brought to its notice in the form of
litigation.
d) The Supreme court does not give any advisory opinion on any matter of public
importance or any question f law. It explains and interprets law during the regular sessions
only.

The Power of Judicial Review:

According to C.J.Marshall:
It is emphatically the province and duty of the judiciary to say what the law is.
The most striking feature of the US Supreme court is its power of judicial review .As the
guardian of the constitution, the Supreme Court has the review of the laws of the congress
and other executive decrees so that they do not violate the constitution and other valid laws
passed by the congress. The power of the judiciary to determine the validity of the laws on
executive orders may be termed as the power of judicial review.
It refers to inquire whether a law, executive decree or other official action is agianst the
constitution and if it decides that they do violate the constitution it declare them ultra vires
or null and void.
The supereme court does not pronounce upon the constitutionality or otherwise of the
legislature measures on its own intiative. It exercises thus power only when the matter is
referred to it by an aggrieved party.

Basis of the judicial review:

The US constitution makes no specific mention of the power of judicial review. It was
acquired by the court early in the 19th century.
According to C.J Hughes:
The constitution is what the judges say it is.
The constitutional basis of the judicial review may be found in Article 6 which reads in part:
This constitution and the laws of the United States which shall be made in Pursuance
thereof, and all the treaties made or which shall be made under the authority of the United
States, shall be the supreme law of the land the judges in every state shall be bound
thereby, anything in the constitution or the laws of any state to the contrary
notwithstanding.

It was first acquired by C.J John Marshall in the celebrated Marbuary vs. Edison case in
1803.Merbuary was appointed as the justice of peace by president Adams in the district of
Columbia on the last day of his office, but commission could not be delivered to him. The
next president Jefferson and his secretary of state Madison refused to deliver the
commission to Marbuary . He, consequently, petitioned to the Supreme Court to issue him
the writ of Mandamus, under the Judiciary Act of 1789. The court presided by john Marshall
held that Marbuary was entitled to commission. But it had no authority to issue the writ of
Mandemms,compelling delivery ,because the provisions of the judiciary Act violated the
constitutional provisions of the Article 3 as such that it enhanced the original jurisdiction of
the supreme court. To this extent, this act of congress ws unconstitutional and therefore null
and void.
C.J Marshall while announcing the decision in the Merbury Vs. Medison case held that the
power of judicial review was inherent in the duties of the judges to defend the constitution.

Evaluation of Judicial Review:

From the days of C.J Marshall down to present to question whether the framers wanted the
court to have powers to decide on the constitutionality of the legislative measures has been
warmly denoted.
Prof. Carwin and prof. Beard opine that the judicial review we correct and justified. Prof
Beard went through the records of Philadelphia convention and come to the conclusion that
25 out of 55 men of convention were in favor of , or accepted some form of judicial
control .
Prof. Carwin held that the judicial review developed out of the strong popular desire to
check the abuses of legislative powers.

C.J Marshall held that the judges, under the constitution, could declare any of the federal
laws as void if found against the constitution.
The Supreme Court has been criticized to have seized or usurped the power. Abraham
Lincoln campaigned for the senator and later as the president on this contention that the
supreme courts actions were unwise and politically motivated. There have been suggestions
that the powers of the Supreme Court be curtained, by amending the constitution.
President Theodore Roosevelt for instance held out that the constitution ought to be
amended tp enable the congress to re-enact by 2/3rd majority any law that may have been
declared as unconstitutional by the Supreme Court.
It is argued that the power of judicial review is against the democratic norms. The
proposition that nine men who were never elected to this office and who hold their office
and who hold their office till they die or retire and who can be removed only through
impeachment can declare those laws as void which have been enacted by the two chambers
of the congress, directly elected by the people is surely against the democratic norms.
It is argued that the judges deliberately frustrate the popular will on the basis of their
personal and partisan views. The court is criticized of being conservative.5 out of 9 men
could play havoc. Whatever is constitutional according to their wisdom would have to be
struck down. But despite these entire and many more attacks, the Supreme Court has
continued to perform its duties as the guardian of the constitution. The people still feel that
the powers of the court should not be curtained because it is the highest guarantee of the
fundamental rights. The Supreme Court is described as the third chamber because it can
frustrate the decisions of the two chambers of the congress. Whatever it is said judicial
supremacy is now a fact, whether one likes it or not. The absence of judicial review would
be a complete negation of the principle of checks and balances.

Importance of the supereme court:

Guardian of the constitution: In a federation the existence of an independent tribunal is
necessary to decide the constitutional disputes which may arise between the centre and the
units or between the units themselves. In United States the Supreme Court performs this
duty and acts as the guardian of the constitution. The Supreme Court is referred to as the
third chamber of the congress, because it can upset the decisions of the other two
chambers.
Growth of the constitution: It is also the interpreter of the growth of the fundamental law.
It has read new things which were not clear to the naked eye. Munro has also said:The
Supreme Court has guided the American constitutional progress.
Supreme Court as policy maker: The Supreme Court has made decisions regarding every
aspect of the life of citizens. It has penetrated deep into the economic affairs of the nation
and has regulated the social relationships between the individual citizens.
Accommodation and Adjustment: The rigidity of the US constitution has made amendment
in it a very difficult process. As a result only 27 amendments have been made so far. There
is a tremendous variation in the socio-economic and political conditions of the modern
scientific age than the one which existed at the time of framing the constitution. The credit
goes to the Supreme Court for liberal interpretation of the constitution according to the

changed circumstances.
Civil Liberties: America today is a highly industrialized country. The life of the people is
very complex. The Supreme Court has provided flexibilities to the constitution. The role of
the Supreme Court has changed with the time. Before 1937 it emphasized upon the
protection of property rights. But recently the emphasis has been upon the personal rights.
The Supreme Court has played a significant role in the protection of the fundamental rights
of the people. It has made several decisions which have improved the plight of the Negroes
in the country.

Conclusion:
It can be concluded from above discussion that Supreme Court occupies a very important
place in the federal structure of USA.
According to F.J Haskin:
This great tribunal is a balanced wheel in the governmental machine.
According to Finer
Supreme Court is cement which has fixed from the whole federal structure.

Q.no. 8. Election Process of the US president.

Introduction:

Experiences from the past.

(Colonial and co federal period)
a) Some states had the experience of executive councils made up of several members , a
system which had been followed with considerable success by the Swiss for some years and
Benjamin Franklin argued that a similar system be adopted by the United States.
b) Most of the members of the constitutional convention still remembered that excess of
executive power wielded by the British Monarch.

Options Available at that time:

a) Hereditary Monarchical System: One option was to adopt the hereditary system for the
election of the chief executive of the United States on the same lines as was present in
Britain at that time.

Reasons against the first option:

1) The Americans are liberal by nature. They resented the monarchical system. They

wanted a progressive executive.

2) The theory of separation of powers and system of checks and balances was a part of the
US constitution. The monarchical system was against the basic spirit of the US constitution.
3) At the time when the Americans were to decide through convention, the nature of their
executive , the British Monarchy was losing its powers and functions and giving way to
democratic institutions.
According to Wills G. Swartz:
Our republican form of government with its elective presidency was born in the declining
period of divine right absolutism.
b) Parliamentary Representative system: Second option was to adopt the parliamentary
representative system in which Prime Minister is the chief executive.
Reasons against the 2nd Option:
1) Theory of checks and balances is a part of the US constitution but the parliamentary
system is against the basic spirit of the US constitution.
2) Theory of separation of powers is a part of the US constitution but in the parliamentary
system, the chief executive (P.M) is under the influence of the legislature.
Deliberations of the constitutional convention about the system of election:
I. Legislature election: The framers of the constitution discarded the legislature election
because in this method the president would be subservient to the legislature.
II. Popular Election: The framers also rejected the popular elections because this would give
advantage to the larger states.
Final decision about the method of election:
In theory: In theory the US constitution provides for an indirect election by an electoral
college constituted for the election of the president
In practice: with the growth of the political parties in America, the system today has
become direct.
Qualification of presidential candidate:
A US presidential candidate must full fill the following conditions:
i. Must be a natural born US citizen .
ii. Must be at least 35 years of age.
iii. Must have lived in the country for at least 14 years.
Tenure: According to the constitution the president should office for a term of 4 years and
under the 22nd amendment, a president can stand for reelection only once.
Impeachment: If the president commits a serious crime or an act of grass misconduct, he
can be removed from office by a process of impeachment initiated in the congress.
Actual Election Process:

The election is held after every four years in a leap year

On the first Tuesday
After the first Monday
In the month of November
Nomination of candidates:
The process of nominating candidates by the two major parties begins many months earlier.
The first consideration before them is to select a candidate who would win votes. The voting
behavior of the American people is determined by various factors which change from time to
time.
Election Campaign:
After this the election campaign begins which is a process of greatest magnitude both in
terms of number of people involved and the amount of money spent. This process, at
present, costs the country more than 1 billion dollars.
Voting Stage:
Actually the people of each state dont vote directly for the president and the vice-president.
They select presidential electors equal to the number of senators and republicans each state
has in the congress. The candidate with the highest number of electoral votes in any state
wins all the votes of that state. The presidential electors of all the 50 states and the district
of Columbia (federal area) a total of 538 comprises what is known as the electoral college.
Here it must be noted that 535 electors are from all the 50 states and 3 from the district of
Columbia.
Constitutional Requirement of Electoral College:
It never meets as a body.
The electors meet at their respective state capitals and cast their votes shortly before the
election. To win a candidate needs 270 votes.
The constitution further provides that if no candidate wins the majority, the members of
the House Of Representatives would make the decision.
Process in the HOR:
All the members of the states would vote as a unit.
All the 50 states and the District of Columbia would be allowed one vote each (50+1).
To win a candidate needs at least 26 votes.
Conclusion / Assessment of the election process:
1) The Americans had experienced in the past a strong colonial executive and a weak local
legislature. They wanted to strike a balance between the two. Therefore they chose an
executive known as president. The unique feature of this executive authority is that the
congress does not have any power in his election as separate Electoral College is constituted
for this purpose and get dissolved after the election.
2) With the growth of political parties in America, party influences are immense during the
election campaign from nominating candidates, to selection of the electors and to the stage
when actual voting takes place.
According to Lord Bryce:

The president is the nearest and the dearest substitute of a royal ideal which the Americans
possess.
3) It is believed that due to the party influences the president does not play a natural role
but tries to strengthen the position of his party through favorable governmental politics.
Q.No. 9 Amendment process of US constitution.

Introduction:
The process of overhauling and modernizing the constitution has been going on from the
beginning till today.
One might say, writes Munro, that it is amended every Monday morning when the
supreme court hands down its decisions.
The amendment process of the American constitution is very difficult and so far only 27
amendments have been made in the constitution.
Amending Process:
Article 5 of the constitution prescribes the amending process thus:
The congress, whenever the 2/3rd of both the houses shall deem it necessary, shall
propose amendments to this constitution or one the application of the legislatures of the
two- thirds of several states shall call a convention for proposing amendments, which is
either case shall be valid, to all intents and purposes, as part of this constitution, when
ratified by three-fourth legislatures of the several states or by convention in three-fourth
thereof, as the one or the others made of ratification may be proposed by the congress.
Analysis of the Amending Process:
The American constitution , writes Lord Bryce , has been worn away in one part,
enlarged in another ,modified in a third way by the ceaseless influences playing upon the
people. It has necessarily changed as the nation has changed. It has changed in the spirit
with which men regard it and , therefore in its own spirit.
The Amending process consists of two stages on of the proposal and the second of
ratification. But according to the constitution these two stages can be conducted in four
different ways:
Proposal for Amendment by 2/3rd of the members of congress present and ratification by
legislatures of 3/4 the of the 50 states.
Proposal for Amendment by 2/3rd of the members of congress present and ratification by
3/4 th of states convention.
Proposal for amendment by a national convention called by congress on request of 2/3rd
of legislatures of several states and ratification by the state legislatures.
Proposal for amendment by a national convention called by congress on request of 2/3 rd
of legislatures of several states and ratification by 3/4th of states convention.
Time Limit for Ratification:
The constitution is silent over this question. The congress, may fix a time limit for such
ratification, as it fixed 7 years as the maximum time for the ratification of 18th ,20th ,21st
amendment.

The supreme court has held that amendment is a totally legislative measure and the assent
of president is not required to a proposed amendment before being sent to the states.
Similarly governors assent is not required to the amendments ratified by the state
legislature.
Restrictions to the Amendment:
The constitution has itself laid down certain restrictions on its amendment .The artilcle 5
states that:
No amendment which may be made prior to the year 1808, shall in any manner affect the
first and the fourth clauses of the 9th section of the first article. These clauses are related
to the importation or migration of Negro slaves and related to capitation and direct tax
respectively.
Similarly the article 5 states that No state, without its approval, shall be deprived of the
equal suffrage in the senate. Thus, each of the 50 states enjoys equal suffrage in the
senate. Similarly no state can be divided nor two states be combined together to form a
single state without the assent of the legislature concerned. These restrictions are imposed
to pressure the stability of the federal structure of the American union.
A survey of the 27 amendment shows that they have changed the original constitution but
not fundamentally. The changes have been numerous but they were not related to the
power or structure of the federal government.
Conclusion/Criticism of amending process:
It is difficult circuitous and complicated .The two-thirds majority vote is too great to be
easily secured. As a result out of about 4000 proposals for amendment which have been
made since 1787 only 27 have secured the required majority vote.
It is a very slow process. It involves two stages of proposal and ratification which makes it a
sluggish process. As a result only 27 amendments have been made in a period of more than
200 years.
Q. no.10 American bill of Rights.

Introduction:

The Bill of Rights is the first ten amendments to the US constitution. They were introduced
as a series of amendments in 1789 by James Madison. Ten of these amendments were
passed and became Bill of Rights in 1791.They restrict the powers of the federal
government, protecting the rights of all the citizens, residents and visitors on the US
territory. These amendments guarantee the freedom of speech, religion and press, right to
keep the and bear arms ,freedom to assemble and freedom of petition as well as right of
protection against unreasonable search and seizure ,cruel and unusual punishment and
compelled self-incrimination.
Prior to listing his proposals for amendments to the constitution, Madison acknowledged the
major reason for discontent against the constitution by asserting that:

 I believe that the great mass of people , who opposed the constitution, disliked it because
it did not contain effectual provisions against encroachments on particular rights and those
safeguards which they have been long accustomed to .

Amendments:
First Amendment:
Congress shall make no law respecting an establishment of religion on prohibiting the free
exercise thereof , or abridging the freedom of speech and press, and the right of people to
petition the government for redress.
Second Amendment:
A well regulated militia , necessary to the security of a free state, the right of people to
keep and bear arms shall not be infringed.
Third Amendment:
No soldier shall, in time of peace, be quartered at any house without the consent of the
owner, nor in time of war, but in a manner prescribed by law.
Fourth Amendment:
The right of people to be secured in their persons, houses papers and effects against
unreasonable search and seizure shall not be violated.
Fifth Amendment:
No person shall be made to answer for any capital or otherwise infamous crime unless on a
presentment or indictment by a grand jury.
Sixth Amendment:
In all criminal prosecutions, the accused shall enjoy the right to speedy and public trial by
an impartial jury of the state and district wherein the crime shall have been committed.
Seventh Amendment:
In suits at common law , when the value in controversy exceeds twenty dollars, the right of
trial by jury shall be preserved.
Eight Amendment:
Executive bail shall not be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted.
Ninth Amendment:
The enumeration in the constitution of a certain rights shall not be consulted to deny or

disparage the others retained by the people.

Tenth Amendment:
The powers not delegated to the United States by the constitution , nor prohibited by it to
the states are reserved to the states respectively or to the people.

Incorporation extends to the states:

Originally, the bill of rights applied only to the federal government and not the several state
governments. Parts of the amendments initially proposed by Madison that would have
limited the state governments were not approved by the congress and therefore the bill of
rights did not appear to apply to the powers of the state governments. In 1833 case Barron
vs. Baltimore the supreme court ruled that the bill of rights provided protection against
encroachments of a general government and not those of a local government. However, in
the 195 judgment in the Gitlow vs. New York the supreme court held that the 14th
amendment made certain applications of the bill of rights applicable to the states.

Ratification Process:

On November 20, 1789, New Jersey became the first state to ratify these amendments . On
December 15, 1791 ten of these amendments became the first through tenth amendment
and the Unites States law ---------when they ratified by Virginia legislature.
Article 3 to Article 12 were ratified by 11/14 states (75%) Article 1 rejected by Delaware
was ratified by only 10/14 states .Article 2 was ratified in 199 as 27th amendment.

Conclusion:
The idea of adding a bill of rights to the constitution was originally controversial. Hamilton
argued against a bill of rights asserting that:
Here, in strictness, the people surrender nothing and, as they retain everything , they have
no need of particular reservations.
Finally, Hamilton expressed the fear that protecting certain rights might imply that any of
the unmentioned rights would not be protected. This is the basic reason why the ninth
amendment was added. In reply to the question that a list of rights might be construed to
be exhaustive, Jefferson wrote to Madison:
Half of loaf is better than no bread if we cannot secure all our rights; let us secure what we
can.
The majority of the members of the first US congress agreed that a bill of rights was needed
and most of them agreed on the rights they believed should be enumerated.
--------------------------------

Last Question... U.S. House Of Representatives:

Introduction:
Responsibility for giving expression to the will of people of United States has been assigned
to a bicameral legislature called the congress. The House of Representatives is the lower
house of the US congress. The framers intended to make H.O.R a popular chamber;
therefore, it was made much larger and responsive to the public will than the senate. It is
elected by all citizens of US, who are at least 18 years of age.

Composition:

According to the constitution, The House of Representatives shall be composed of the

members chosen every second year by people of several state. ( Article 1, Sec 2)
The number of representatives shall not exceed one for every thirty thousand but each state
shall have at least one representative. The membership of the House of Representatives
increased proportionally, till it is now fixed at 435 + 3=438 (435 from 50 states 3 from
District of Columbia)

Qualification:
A member of the House of Representatives should be:
At least 25 years of age.
A citizen of that state(District)
A resident of that state from which election is sought.

Disqualifications:
No person holding any office under the United States shall be a member of either House Of
Congress while he is in office.

Sessions:
Under the 20th amendment in 1933, the constitution has fixed the third day of January next
after the elections as the date of first meeting of the new congress. The congress meets at
least once in a year. The president may, however, convene both houses and any one of them

to an extra-ordinary session. The House of Representatives has never been so convened.

There is no fixed length of a session; maximum possible is one year. Therefore, a bill
introduced in the first session of congress has a maximum one year to be enacted into law,
failing which it automatically dies.

Powers and Functions:

i.Legislative Powers:
The constitution declares in Article 1: All the legislative powers granted herein, shall be
vested in a congress of United States which shall be composed of a senate and a House of
Representatives. The H.O.R shares equal legislative powers with the senate in case of
ordinary legislation and money bills. Most of the ordinary bills originate in the senate. The
bills generally passed by the upper chamber are usually passed by the H.O.R, because the
members of the lower house pay full respect to the verdict of their party leaders in senate.
The money bills originate in the H.O.R , but senate has powers to reject or amend the
money bill.
ii.Executive Powers:
The senate confirms nearly the sixteen thousand official appointments which the president
can make. This is mostly done by the senators belonging to the presidents party. In case
there are none, then the preparations of the presidents party have a great say in these
appointments. The president keeps informed both houses of congress on international state
of affairs by sending messages. The congress has the sole power to grant money to the
federal government and its various agencies.

iii.Judicial Powers:
House of Representatives initiates most of the impeachment proceedings. The constitution
has authorized the congress to impeach the president, vice-president and all civil officers
and remove them from office. In case of impeachment the senate sits as a court of trial and
all the impeachment proceedings are conducted before it by the House of Representatives.
(Article 1 section )

iv.Miscellaneous Powers:
It shares with the senate , powers to propose amendments to the constitution.
In the election of a president, if no candidate gets the majority , the decision is made by
the H.O.R. In the H.O.R each state casts one vote only out of votes (1 for District
CIolumbia) a candidate needs 26 at least to be successful.

The greatest of all the differences between the British and the American constitutional
practice lies in the widely different measures of authority enjoyed by the House of
Representatives and the House of Commons.

Speaker of the H.O.R:

When the new congress meets on the first day it selects its speaker. The speaker has a
number of important functions and performs certain duties.
Ogg says:
The simple chairmanship grows into a vital dictatorship carrying the power of life and death
over almost everything that the house undertook to do.

Functions and Powers of the speaker:

1. Right of Recognition: The speaker has the power to nominate the member of the House
to address the House or to offer any motion.
2. Right of appointment: The speaker appoints the chairman of the committee of the whole
house and can appoint his deputy for a period of three days.
3. Right to refer bills to committee: The speaker has the power to refer the bills to
appropriate standing committees for consideration and action.
4. Right to cast vote: The speaker may take part in the debate or cast vote in case of tie.
5. Order and Decorum: The speaker being the presiding officer, has the duty to maintain
order and decorum in the house.
6. Right to interpret: The speaker has the power to interpret and apply the rules when any
question regarding the proper procedure arises.
7. Signing of the bills: The speaker signs all the bills passed by the congress.
Finer says: In fact, in importance his position is only next to the American president.
He has ,as Laski says, a kind of half veto upon the policy of the president.
Reasons for the weakness of H.O.R:

Shorter term
Permanent nature of senate
Quality membership of senate
Special functions of the senate
Rules of debate are less tougher in the senate