The federal government of the United States consists of three separate, but equal main branches; judiciary, legislature and executive. The basic duties of the different branches are outlined in the constitution. The judiciary interprets the laws; the legislature makes the laws and the executive enforce the laws. Checks and balances are crucial to any government as they reduce any amount of power anyone can have. Constitutionalism put in place the rule of law which provides that no one is above the law, hence limiting the power of government bodies and leaders. Checks and balances is a mechanism designed in an attempt to limit powers and prevent conflicts. Democracy is ensured by different U.S citizens who take part in electing officials, who in turn take part in the process.
Decision of one branch of government depends on the decisions, at least in part, of one or both of the other branches. Therefore, this can be seen as an automatic check and balance system where none of the branches can appropriate more powers than the other two. The three branches ensure that government business is divided among three branches, ensuring that such business is not monopolized by one branch. This also prevents the formation of strong national governments which can overcome individual state governments; hence overlapping governmental powers. An excellent example is the presidential veto, which can be used to check congressional authority in the law making process. In the same note, this veto can be overridden by a vote of two third majority in the house of congress. Similarly, the president has the power to appoint ambassadors, high government officials and federal judges, but with consent and advice from the senate. Also, laws can only pass if approved by both houses of congress. Despite the fact that the president is the commander in chief, only the congress can formally declare war or has the authority to support and raise the army (Mainwaring, p. 9).
In the same point, the judiciary has the power to strike down the powers of the executive and legislature and term them unconstitutional. Therefore, involvement of different parties in different government processes ensures democracy. Democracy is against oligarchy or dictatorship thus; ensuring free will of the people and exercise of different fundamental freedoms and rights. Democracy is closely linked to the rule of law. Therefore, separation of powers ensures participation of different interests groups, and people participate through their elected leaders in the senate or even house of congress. These officials work on different levels to voice concerns in the interest of the people they represent, thus ensuring that democracy is exercised. The citizens also hold decision makers in account of matters affecting their lives, based on institution practices and fair rules. Therefore, the balance of powers ensures sovereignty, where people are the ultimate source of power, because the government derives their power to rule and authority from the people, hence democracy. Similarly, democracy is ensured by limited government powers derived from different statutes, voted in by people, and those in power have to obey such rules (Kowalski 60).
The media acts as a voice of the people. In a democratic government the free flow of opinions, information, and ideas is very crucial. The media is seen to play a vital role in ensuring checks in different branches, by investigation and ensuring that information is available to everyone. The media sets the agenda by ensuring there is free flow of information. The press also gives a forum to ensure that discussions and debates on different issues, by different interest groups and citizens are aired. Therefore, media involvement ensures checks and voicing of different issues by citizens hence, democracy. Therefore, the press acts as a ‘super check’ on the three branches of government preventing them from monopolizing rule and power from people’s free will.
Federalism is a concept which has evolved over American history; due to the expansion of central government roles hence the need for federalism. The founders of federalism determined that the power was to be shared among different government levels. Thus, a system where power is shared between several state governments under a national government. Federalism ensures that the national government is supreme in decision making, in certain areas, and the states are administrative units of the central government. Federalism also ensures that states have considerable powers in decision making in certain issues affecting them.
Cooperative federalism endorses and acknowledges close relationships between national governments and the states in different areas and not necessarily equal sharing of governmental responsibilities. It was first formed in 1930’s and favored by FSPN. Federal regulatory regimes and state implementation provides a prime example in cooperative federalism. The term arose after it was recognized that separation of national and state authority assumed in dual federalism did not accurately describe interactions between state and national governments. Therefore, there was a perceived need for a more cooperative term hence, cooperative federalism. So it is essentially corrective to dual federalism, giving incomplete- specifications to federal- state relationships. Cooperative federalism seeks to legitimate, theoretically, the relationship between federal- state partnerships, which, in fact, pervade operations of the governments.
Cooperative federalism supports voluntary interaction of national and state governments. The interaction between national and state government can be competitive or confrontational, and the theory does a little to sort out issues that may arise in the relationship. The theory does not contribute much in the resolution of conflicts. The theory resists separation of state and federal government but does not ensure that they both play together. The theory emphasizes growing relationships between inter- government relations. Also, cooperative federalism implies existence of two planes of government, but which is the essential feature of dual federalism, but differs in terms of inter-plane connection. This theory operates in terms that one plane of government does not encroach or coerce the other. The theory emphasizes on better intergovernmental relations as opposed to dual federalism, and also cooperative in nature. Therefore, the theory of cooperative federalism is helpful in promoting an understanding of the system, but fails to explain the congressional-structuring of the national state relations; through coercive use of formal pre-emption powers, cross- over sanctions, tax-sanctions explained in chapter 4 and 6. In cooperative federalism, it is hard to tell where one form of government begins or ends (Stevenson 301).
New federalism evolved under the Reagan administration, where the states were granted more power in the implementation of healthcare programs. It was implemented under the power of Nixon this concept attempted to restore more discretion to the states while monitoring the outcome; which was gained during Roosevelt’s authority new deal. This concept insists on state and local governments. The theorists champion that local government is closer to the people hence more accountable. In new federalism, states play a pivotal role in implementing policies.
New federalism monitors outcomes of state governments but grants them more discretion in terms of decision making as compared to cooperative federalism. New federalism constituted blocking of grants, as opposed to cooperative federalism. New federalism also placed emphasis on state and local government, unlike cooperative federalism which did not clearly differentiate state and local government. Therefore, generally, there was clarity of power sharing between local and state governments in the new federalism, which was not the case in cooperative federalism.
Bill of rights
One civil right found in the bill of right is the right of a person born and naturalized in the United States. This is found in section 1, and provides that all people naturalized or born in the United States are subject to its jurisdiction, and also subject to the jurisdiction of the states they reside. It bars anyone from making any laws which shall abridge citizen’s immunities or privileges. It also provides that no state shall deprive citizens the right to life, liberties and ownership of property unlawfully. Additionally, it provides that any person under its jurisdiction is equally covered with the law, thus affirming the rule of law.
Section 2 provides for appointment representatives. It provides that they shall be elected according to their representative numbers as counted, counting the whole number of persons in each state, but in exclusion of Indians who are not taxed. However, the number of voters for any representation can be reduced depending on the number of male citizens, who are above 21 years of age in such a state. Such rights should not be abridged unless in cases of rebellion or other crimes. Therefore, it provides for provisions in regard to participation in civil rights and election of leaders, and limits the rights under certain circumstances like crime and rebellion.
The bill of rights incorporation includes how the bills of rights have been applied in the American courts overtime. Before 1925, the bills of rights were held to apply to the federal government only. This is seen in the holding of Barron V Baltomore. In this case, the court held that the bill of rights did not apply to any state governments but only the federal government. The case involved Fifth Amendment requirement compensation, which was held as not binding to state governments. Similarly, in Mapp v Ohio, a case in relation to the right to privacy, the court held that the fourth amendment was not a lesser right and was reserved to particular people. The doctrine of incorporation was put in place to include local and state governments. However it can be seen that after the 14th amendment was ratified, only some bill of rights applied to the state government, the bill of rights were seen to apply only to the federal government. This situation is seen in the case of United States v Cruikshank, where it was held that the second and first amendments did not apply to state governments. The case held that the second amendment had the effect of restricting powers to the national government. Interpretations of the fourteenth amendment, and the case of Cruikshank showed that certain sections of the bill of right and other portions were exceptional since then the court has interpreted most sections to apply to state governments. This is seen in the case of Gitlow V New York, where the court held that the states ought to protect freedom of speech, hence extending the applicability of the bill of rights to the states.
Later on, in the Supreme Court case of Hugo, it was argued that framers should clearly state their intentions, and provide control measures on how to interpret the 14th amendment. However, in Adamson v California, the court refused to adopt the Hugo case interpretation. Afterwards, the courts employed selective doctrine incorporation, where they extended the protections under the bill of rights and other unenumerated rights to the states. The 14th amendment has been seen to attract lot litigation in the constitution of United States, compared to any other amendment.
The 14th amendment aimed at expanding the civil rights. The 14th amendment was first proposed to the House of Joint resolution on 16th June 1866 and was submitted to the states. On 28th of July 1868, it was declared in a certificate of the secretary of the state and ratified by 28 out of the 37 required states, and became the supreme law.
The 14th amendment aimed at achieving equality of civil right to all citizens. This One of the major amendments was granting citizenship to people naturalized and born in the United States, thus granting former slave’s citizenship. It also prevents deprivation of property, liberty and life without due process of the law, thus granting equal protection to all people within the jurisdiction. This is shown in the case of Mc Donald v Chicago, which also shows incorporation, where the issue was gun legislation and the right to liberty provided in the 14th amendment. The court demonstrated that the right to liberty is fully enforceable by the states, hence showing the current position of the 14th amendment. These equal protection provisions apply to citizens at the state and federal levels. The amendment aimed at securing and guaranteeing the first eight amendments. It also aimed at nationalizing federal bill of rights, extending immunities and privileges to the federal states. However, up to date, courts have refused to accept the implications of the fourth amendments, through refusal of evaluation of the amendments, as shown in civil rights cases of 1883. Therefore, incorporation doctrine included acceptance of the law enforcers to apply different sections of the bill of rights, or refusal. The third and the seventh amendment are the ones seen not to be fully incorporated, but other sections have been fully incorporated.
According to an abc journal in 11th of July 2013, a student sues school wash. School district for sexual discrimination, contrary to her equal protection rights as provided in the 14th amendment. She sues the school claiming that she was barred from joining the basketball team because of her sexual orientation. According to the records, she told the team that she was a lesbian and was involved in a lesbian relationship with her team-mate. This led to her exclusion from the team by her coach, and the assistant coach. Since she had no alternative after the discrimination, she was forced to flee to another school. The lawsuit maintains that the school district is responsible for allowing discrimination. The teacher was later fired, however, in my opinion, 14th amendment does not protect the rights of people per say, and there should be a clearer interpretation on what the drafters intended and the limits in interpreting the 14th amendment (Mandehall, 2013).
14th amendment is just used to nationalize fundamental rights, but in terms of what constitutes these rights remains a philosophical question. This case shows how the 14th amendment is used up to date, without clarity in what the law intends and the scope of interpretation which should be used by the judges. Placing faith in the federal judges to secure more liberties to the citizens by way of 14th amendment presupposes that judges are inclined towards liberty. Different libertarians show that the amendment targeted endorsement of discriminatory ideologies, and excusal for discrimination. To some extent one can see that the 14th amendment has for many years been used to discriminate people, especially the blacks stating that certain clauses to apply to them. Majorly, they were denied some of the rights and freedoms, hence their discrimination. Up to date, there has not been a well-defined structure or limits to the interpretation of the 14th amendment, hence does not guarantee one their rights or exemptions as provided. This is because the courts interpret the 14th amendment according to their own discretion. Therefore, it can be said that the amendment does not serve to protect the rights per say, as such rights depend on the discretion of the judge. The 14th amendment can be seen as an ambiguous law which can be easily manipulated, hence there should be rigid procedures to be used in interpreting the amendment
One the other hand, other analysts, think that the Amendment makes America freer, despite not living to its promise. It does not fully live to its promise as seen in the slaughterhouse cases, where people are denied equal protection of the law. Therefore, the 14th amendment can just be seen as producing ethics of judicial abdication that turns a blind eye to illegitimate judicial action. This is seen in the case where the Supreme Court authorized the use of eminent domain for private development in the case of Kelo. Therefore, generally it is seen that the 14th amendment just makes America freer and does not live to its promise. This has been achieved through adding a source of liberty and protection, empowering an additional set of tribunal to enforce the rights and to add the rights set forth in states. Excellent laws should not be ambiguous; hence there is a need for proper scope of interpretation of 14th amendment with indications of intentions, to prevent improper manipulation of the amendment.
"The 14th Amendment and Guest Workers." Wall Street Journal, Eastern edition, ed.Jun 18 2013.
ProQuest. Web. 30 Mar. 2014 .
Kowalski, Kathiann M, and Kathiann M. Kowalski. Checks and Balances: A Look at the Powers
of Government. Minneapolis: Lerner Publications, 2012. Print.
Mainwaring, Scott, and Christopher Welna. Democratic Accountability in Latin America.
Oxford: Oxford University Press, 2003. Internet resource.
Mendenhall, Allen. "The 14th Amendment Doesn't make America Freer." Freeman 11 2013: 17-8.
ProQuest. Web. 30 Mar. 2014 .
Rich, Robert F, and William D. White. Health Policy, Federalism, and the American States. # Washington, D.C: Urban Institute Press, 1996. Print.
Stevenson, Garth. Ex Uno Plures: Federal-provincial Relations in Canada, 1867-1896. # Montreal: McGill-Queen's University Press, 1997. Print.
Verney, Kevern. The Debate on Black Civil Rights in America. Manchester [u.a.: Manchester
Schapiro, Robert A. Polyphonic federalism: toward the protection of fundamental rights.