Constitutional Topic: The Government
The Constitutional Topics pages at the USConstitution.net site are presented
to delve deeper into topics than can be provided on the Glossary Page or in the FAQ
pages. This Topic Page concerns the Government. The Constitution of the
United States provides a basic framework for the government of the United
States. But there are a lot of details that it does not go into, for good
reason. The purpose of this page is to go over some of those details, to fill
in the blanks, as it were. The Topics Page for The
Separation of Powers may be helpful in explaining why the three branches of
the United States Government were created.
The Legislature
The duty of the Legislative Branch is to make the laws of the nation. It
consists of two houses, the House of Representatives and the Senate. Members
of either house are referred to as Congressmen, Congresswomen, or
Congresspeople. Often, Congressperson is used as a synonym for Representative;
this is not quite proper usage, however, as a Senator may properly be called a
Congressperson, too.
The so-called Lower House is the House of
Representatives, or simply the House. The House is made up of members
called Representatives. The qualifications for House members are spelled out
in Article 1, Section 2:
- 25 years old or older
- Must have been a U.S. citizen for seven years
- Must live in the state he represents
Note that there is no restriction in terms of gender, race, class, social
standing, or any other classification, for Representative.
Each state has a number of Representatives proportionate to the population of
that state. Each state has at least one Representative, even if its population
would not warrant one. The Constitution does not set a per-Representative ratio
(except for the House’s sessions up until the first census was taken), nor does
it set a maximum limit to the number of Representatives. This number has been
fixed by law, however, at 435. This number was set in 1911, and in current
law, does not change even upon admission of new states (though the number can
temporarily increase to accommodate new states until the next census). These
435 seats are divided among the states every ten years, following the
Constitutionally-mandated decennial census. For details about how seats
are apportioned, see the U.S.
Census Website.
If a Representative’s seat becomes vacant for any reason, the governor of
that state must provide for a new election to fill the seat. Representatives
serve for two years at a time, with new elections coming every second November.
The entire House can theoretically be replaced each election. Representatives
are chosen by the people in a direct election.
The Constitution mandates that the House choose a Speaker for itself. The
Speaker presides over the proceedings of the House and is the highest position
in the House leadership. Other leadership positions are the Majority and
Minority Leaders, and the Majority and Minority Whips. The Minority Leader
would generally be the Speaker if his party were the majority. The whips act
as an interface between the leadership and the rank-and-file members.
The current leadership of the House (112th Congress, as of January 5,
2011):
- Speaker: John Boehner (R-OH)
- Majority Leader: Eric Cantor (R-VA)
- Majority Whip: Kevin McCarthy (R-CA)
- Minority Leader: Nancy Pelosi (D-CA)
- Majority Whip: Steny Hoyer (D-MD)
See the Congressional Membership Page for a list
of the members of the House. The House also has its own website.
The Senate is the Upper House. Its
members are called Senators. The qualifications for Senators are spelled out in
Article 1, Section 3:
- 30 years old or older
- Must have been a U.S. citizen for nine years
- Must live in the state he represents
Note that there is no restriction in terms of gender, race, class, social
standing, or any other classification, for Senator.
Originally, Senators were appointed by the state legislatures. This method
was chosen to allow the Senate to better offset the House, which the Framers
felt would be impetuous, it being elected by the people. Senators are now
chosen by the people in direct election; this provision was changed by the
17th Amendment.
Each state has two Senators, regardless of the size of the state.
Currently, there are 100 Senators. A Senatorial term lasts six years; every
second November, one third of the Senate comes up for reelection, leaving an
experienced two-thirds in the Senate each time through the election cycle.
If a Senator’s seat becomes vacant for any reason, the governor of that state
must provide for a new election to fill the seat.
The Vice President of the United States is the President of the Senate. He
is a non-voting member unless a vote of the Senate ends in a tie, in which case
the Vice President casts the deciding vote. The Constitution understands that
the Vice President will not always be available and provides for a President pro
tempore (literally, a temporary president). Like the House, the Senate
leadership also consists of Majority and Minority Leaders and Whips. In the
Senate, the whips are officially known as the Assistant Leader.
The current leadership of the Senate (112th Congress, as of January 5,
2011):
- President: Joseph Biden
- President Pro Tem: Daniel Inouye (D-HI)
- Majority Leader: Harry Reid (D-NV)
- Majority Whip: Richard Durbin (D-IL)
- Minority Leader: Mitch McConnell (R-KY)
- Minority Whip: Jon Kyl (R-AZ)
See the Congressional Membership Page for a list
of the members of the Senate. The Senate also has its own website.
The Executive
The duty of the Executive Branch is to enforce the laws
of the United States. The branch is headed by the President. The Constitution
sets out the qualifications for the President in Article 2, Section 1:
- 35 years old or older
- Must be a natural-born U.S. citizen
- Must have lived in the United States for fourteen years
There is a bit of ambiguity in some of these requirements. First, the
definition of “natural-born” is a matter of law, and, hence, interpretation.
For example, the child of American citizens who happened to be overseas when
the child was born is considered natural-born. A child born in an acquired U.S.
territory (such the U.S. Virgin Islands) is considered a citizen at birth as
determined by law. To be safe, a person is eligible to be President if that
person was born in a state after the date of statehood. If a person was born
in a territory or overseas, one should check the U.S. Code (Title 8) to be sure.
Next, there is no clarity on the 14 year requirement. Few think that it means
14 consecutive years inside the United States, as that would likely disqualify
many citizens who traveled abroad or who lived in military bases. Some think
it should mean 14 accumulated years from birth, including time in U.S. military
bases, embassies, and off-shore offices of U.S. corporations. It may take a
Supreme Court decision to set the rule in stone.
Note that there is no restriction in terms of gender, race, class, social
standing, or any other classification, for President or Vice President.
The other Constitutional members of the Executive are the Vice President,
who, by virtue of the 12th Amendment must have
the exact same qualifications as the President in order to be VP; the Executive
Departments (see The Cabinet Topic for
details); the Military; various Agencies, Councils, Advisors, and Offices that
work with and for the President; and Embassies, Missions, and Ambassadors to
international organizations and foreign nations.
The President is restricted to two full elected terms in office by the 22nd Amendment. This is the only term limit in the
Constitution. There is no restriction of term for the Vice President or any of
the non-elected members of the Executive Branch. The longest serving President
was Franklin Roosevelt, who, in a time of national emergency, overturned a
traditional (but not legal) two-term limit first set by George Washington.
Roosevelt was elected four times. The shortest serving President was William
Harrison, who died after one month in office.
The President has several constitutional duties aside from the general
“enforce the laws” duty. These are:
- To be Commander in Chief of the military
- To conduct foreign affairs
- To negotiate treaties with other nations
- To nominate members of the cabinet, judiciary, etc.
- To review and sign or veto bills
- To administer the laws of the nation
- To issue pardons as he sees fit
- To address the Congress from time to time to assess the state of the nation
The President, as leader of the nation, and as leader of his or her party,
de facto if not de jure, has several other roles. These are:
- Morale builder
- Party Leader
- Legislative leader
- Coalition builder
- Crisis manager
- Personnel recruiter
- World Leader
- Budget Setter
- Priority setter
- Bargainer and Persuader
- Conflict resolver
The current President and Vice President are:
- Barack Hussein Obama II, President
- Joseph Robinette Biden, Jr., Vice President
See the Presidents Page for a list of all U.S.
Presidents. The White House also has its own website.
The Judiciary
The duty of the interpretation of the law rests in the
Judiciary. The highest court in the United States, above all others, with the
final say in the what laws are Constitutional and which aren’t, is the
Supreme Court.
There is actually very little said in the Constitution about the Supreme
Court or any of the courts. Article 3 is the
shortest of the first three articles, and only the first two of the three
sections have anything to do with the structure of the Judiciary. The Chief
Justice is only mentioned in Article 2, concerning presidential impeachment.
Judges have no Constitutionally mandated age, residency, or citizenship
requirements.
Judges appointed to the bench under Article 3 courts serve their terms for
as long as they wish, while in “good Behavior.” Judges can be impeached by the
Legislative branch.
Currently, there are nine justices of the Supreme Court. Since the
Constitution does not specify the number, it has fluctuated, from as few as
five to as many as ten. The Supreme Court is the highest appellate court,
meaning that cases normally only come to the Court by way of appeal after
appeal of the losing party. The Supreme Court does have original jurisdiction
of a few types of cases, spelled out in Section
2.
The Constitution also specifies that there will be courts inferior to the
Supreme Court. These courts are federal in scope and are separate from similar
court setups in each state. This dual-scope judicial system is quite uncommon
through other governments in the world, but reflects the historical power of
the states.
In addition the Article 3 courts, there are special Article 1 courts which
help carry out the duties of the Legislative branch, such as bankruptcy courts
and military courts of appeal. Judges serving in Article 1 courts do not serve
for life, but have set terms (such as 14 years for bankruptcy court, and 15 for
military appeals court).
The current members of the Supreme Court are as follows, along with their
year of appointment and president who appointed them:
- John Roberts (chief) (2005, Bush)
- Antonin Scalia (1986, Reagan)
- Anthony Kennedy (1988, Reagan)
- David Souter (1990, Bush)
- Clarence Thomas (1991, Bush)
- Ruth Bader Ginsburg (1993, Clinton)
- Stephen Breyer (1994, Clinton)
- Samuel Alito (2006, Bush)
- Sonia Sotomayor (2009, Obama)
- Elena Kagan (2010, Obama)
See the Supreme Court Justices Page for a list of
Supreme Court Justices. The Supreme Court also has its own website.