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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.



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