There are important variations in branch structures and legislative and judicial procedures from country to country. One basic distinction is whether or not a nation has a constitution, or governing legal document. Many countries have one, but a few (notably the United Kingdom) do not. Instead, they have a body of law – common law – that has been built up over decades if not centuries, and which covers both the structure of the government and all possible legal issues.

This lesson will focus on the use of a constitution. It further describes the United States system, which, for its recognized shortcomings, is still considered one of the strongest examples of checks and balances in existence today.

The constitution is “the supreme law of the land.” It asserts national sovereignty, and establishes the government.

This is a grave responsibility, and to fulfill it the document must be well designed. Otherwise, it will not serve as an effective defense against attempts to undermine democracy.

It is difficult to get this right, which is illustrated by the fact that many countries have redrafted their constitutions again and again. This reflects the interrelationship that exists between the constitution and a nation’s state of political development. If a nation is democratically primitive, through having long-standing and still accepted traditions of authoritarian rule, even a strong constitution will fail, for example, if the government is overthrown in a military coup. Or, if the constitution is weak, the government in power may be able to interpret it in a way that perpetuates its rule.

The constitution defines the branch structure of the government, and this structure embodies an additional set of checks and balances. The United States Constitution, in its first three articles, establishes the three branches of American government. It is notable that the first article covers Congress, the second the President, and the third the Supreme Court. Among other reasons, this reflects the framer’s belief that as the branch most representative of the people, Congress should take precedence.

The Constitution separates government power, to limit the power of any one branch and, counter-intuitively, to provide each branch with sufficient power to offset the other two should they attempt to collude. (It is a very fine balance.) Moreover, the branches have overlapping or in some cases shared responsibility.

In the United States, Congress drafts the laws, but the President has the power to veto them. Congress in turn can override such a veto. Congress also has the power to declare war, but the President, as Commander in Chief of the armed forces, has the responsibility for its conduct. (This reflects another check common in democracy, having the military command under the direct authority of a political and popularly elected official, rather than the most senior generals.)

Congress also has the ability to impeach the President, with the House of Representatives bringing the charge and the Senate trying the case.

Congress further has the power to establish tribunals below the level of Supreme Court, but the President appoints the most senior justices, including for the Court. Congress, specifically, the Senate, can in turn reject the President’s judicial nominees.

The Supreme Court, through the power of “judicial review,” can reject new laws, and government actions, if it judges them to contravene the basic legal framework set by the Constitution. However, while Supreme Court justices are almost impossible to remove (their appointments are contingent only on “good behavior”), Congress does have an additional check here, since it can amend the Constitution.

A further check in the United States is that the executive and legislative branches may not share personnel (for instance, a congressperson serving as a presidential advisor). This is an additional guarantee that branch power remains separate.

This distinguishes the U.S. system from parliamentary democracy, where the legislators are involved in day-to-day government. In this type of democracy, the Prime Minister and Cabinet Ministers are also MPs.

The United States Congress is composed of two “houses”: the Senate, with two senators per state, or a total of one hundred; and the House of Representatives, with four hundred and thirty five representatives. It is a “bicameral” legislature, as opposed to unicameral, which has only one house.

For the House of Representatives, states are divided into districts, of approximately equal population, each one of which elects a representative. Such districts are periodically revised, based on new census, and an important issue is the need to deny political efforts to redraw the district boundaries, to favor specific candidates.

The bicameral structure for Congress enables equality between the states, through the Senate, and overall equal representation for the general public, through the House.

The Constitution also delineates the day-to-day powers of the three branches. Congress, among other things, authorizes the issuance of currency; levies taxes, although it must also budget and account for their expenditure; regulates commerce; establishes the mail system; and raises the nation’s army, including drafting all laws necessary to carry out these powers.

In addition to being Commander in Chief, the President is head of the different Cabinet departments. He or she is further responsible for foreign policy, including through appointing ambassadors to other nations (who must also be approved by the Senate). The President, as the recognized leader of the nation, also has a significant impact on the legislative agenda, indirectly through making public statements and directly through the efforts of Congressional allies.

One problem in a presidential democracy is that even though Congress writes the laws, this does not guarantee that the President will implement them. For example, many presidents, having been elected with campaign funding provided by corporate interests, refuse to aggressively enforce business regulations.

This problem is compounded by the fact that it is difficult to draft laws that are not open to interpretation, or which do not have loopholes.

Congress has an additional responsibility, known as oversight. It not only drafts laws, it oversees the government’s operation. Congress has the power to force executive branch personnel to testify, if it believes legislative intent is not being followed or if the country is in some way being misled. It also has a related investigative department, known as the Government Accountability Office.

The third branch, the Supreme Court, is subordinate to the other two. The Constitution defines Court jurisdiction, but other than this its powers are not explicit. Indeed, it was an initial ruling by the Court itself that gave it the power of judicial review: final say over constitutional interpretation. (Those countries without a charter do not have judicial review.)

The Court is also subordinate because the justices are not elected, and hence they have no accountability to the public. They also have no tangible power. The court is considered to have the “power to persuade,” versus the government’s “power to act.”

An implied restriction is that the Court has only a limited role in the nation’s foreign affairs, since its jurisdiction is largely domestic.

Court judgments, though, where it has jurisdiction, are definitive. There is no right of appeal. Supreme Court precedent can only be overturned by a later decision from the Court itself (this is a form of self-regulation), or via amendment to the Constitution by Congress.

The Court is intended to be independent and legal, not beholden and political. (Justice is supposed to be “blind.”) It is meant to provide unbiased analyses of legislation and legal disputes, not interpret them such that government policy is established. The justices therefore should not act to further a political or partisan agenda.

A basic principle for the Court is “judicial restraint.” This is the idea that the justices should strictly follow the actual text of the Constitution, to ensure that they do not undermine the legislative authority of Congress.

The opposite of judicial restraint is “judicial activism.” This occurs when justices read new interpretations into constitutional clauses.

The competition between judicial restraint and judicial activism illustrates a crucial point. The Constitution is a living document. It is not written in stone. People who argue that it must be interpreted exactly as it is written, in an 18th century context, are akin to the people who demand literal interpretations of the Bible and the Koran. They are constitutional fundamentalists.

The drafters of the U. S. Constitution understood that they could not prepare a document that explicitly encompassed everything the future was to bring. Their intention was to create a charter that could successfully adapt to and address such changing conditions. Their hope was that subsequent generations of jurists would embrace this spirit.

In summary, the peoples of the different countries of the world must decide carefully which structure, checks, and procedures for electing and appointing officials will serve them best. Their goal is a well functioning government, which respects and preserves individual rights.

© Roland O. Watson 2008