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An 18th Century Strait-jacket – Is this a fair description of the Constitution?

According to Ashford and Ashbee (1999), the system of:

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“checks and balances have created gridlock. Decisions cannot be made because there’s insufficient agreement between establishments. In contrast with the countries of western Europe, the US has, [critics] argue, been unable to impose efficient gun management or set up comprehensive health-care provision as a end result of decision making requires such a broadly shared consensus.”

This gridlock is doubtless one of the causes that some have come to name the US Constitution an “18th Century Strait-Jacket”. Of course there are numerous sides to this argument that have to be explored earlier than a conclusion is reached.

First, we must put this into its historical context. As a colony of the British Empire, the Americans had a number of grievances notably with taxation with representation within the British Parliament, the quartering of soldiers in people’s houses without permission and imprisonment with out trial. As a end result, many of those issues are address in the Constitution, e.g. “No solder shall in time of peace be quartered in any home with out the consent of the Owner, nor in time of war, however in a way to be prescribed by law”.

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Three other main influences on the Constitution had been the Declaration of Independence 1776, the Articles of Confederation 1781 and the French philosopher de Montesquieu’s ideas on the ‘Separation of Powers’.

These contributed to the creation of a Constitution that primarily thought of protecting the rights of the citizens and stopping both tyranny of 1 (President) or tyranny of the lots (largest political party). The arguments of critics, nevertheless, are that these influences, relevant as they had been in the 18th Century, at the moment are ‘neither here nor there’, and in fact, it will be sensible to permit both the Executive (in impact the President) or the Legislature (in effect the largest political party) to achieve extra energy, preventing gridlock and indeed permitting both branch of government “to impose effective gun management or set up complete health-care provision”.

It must be remembered that the interpretation of the Constitution will affect its adaptability. Literalists are less likely to discover room for flexibility within the Constitution. For example, let us take the following extract from Article 6 of the Constitution:

“The Senators and Representatives earlier than talked about, and the Members of the a number of State Legislatures, and all govt and judicial Officers, each of the United States and of the several States, shall be certain by Oath or Affirmation, to help this Constitution”.

While a literalist might imagine that these individuals should assist the Constitution whenever, others may recommend that whereas they want to uphold the ideas and rules of the Constitution, if they disagree with anything within the Constitution they have the right, from the 1st Amendment’s “freedom of speech” assure, to make this public. Therefore, it may be argued that it is, actually, the interpreters versus the interpreted that makes the Constitution an “18th Century Strait-Jacket”.

Critics argue that the character of the Constitution creates a state of affairs whereby the Constitution acts as a ‘Strait-Jacket’, restricting Representatives getting on with their work however somewhat concentrating on upcoming elections. This is could be considerably evidenced as truth but maybe general it is a bonus. If the Representatives are constantly trying towards approaching elections they could turn into extra ‘in tune’ with their mandate and give the individuals what they need quite than what he/she or their get together thinks the individuals should want. Therefore, it could be instructed that this nature of the Constitution is a bonus for the people whose rights the ‘Founding Fathers’ or ‘Framers’ had primarily wanted to protect.

Since the start of the American Constitution, there was a gradual shift of energy to the Executive branch of presidency on the expense of the other two. This arguably proves that the Constitution doesn’t act as an “18th Century Strait Jacket” as a end result of it tried equal powers between the branches. This is shift in energy in favor of the Executive – successfully the President – is noticed by Feldmann and Richey (2003) when it comes to the current President George W Bush:

“American presidents have vied with the other branches of government for energy. And in occasions of warfare and national emergency, presidents have exercised heightened levels of authority – in some instances overtly sidestepping the Constitution to do what they felt was necessary. In the bigger battle for energy, America’s forty third president, George W. Bush, seems no totally different. What is completely different, say consultants on presidential energy, is that the open-ended nature of Mr. Bush’s “war on terrorism” is quick creating new realities of executive energy, with no agency expiration date. Some question whether or not the exigencies of preventing future terror assaults are essentially and completely tipping the constitutional steadiness of energy to the president’s benefit.”

Other examples of President’s gradual enhance of power could be seen where President Lincoln commanded the barricading of southern ports and raised the quantity of US army recruits during the Civil War, all without Congressional consent. Ashbee and Ashford report the development saying:

“From 1945 onwards, successive presidents had accountability for the US nuclear arsenal. By the Sixties – when the Vietnam War was fought – the president had undoubted primacy or hegemony in the handling of defence policy and nationwide security matters.”

Hence, Arthur Schlesinger Jr described the 1960s as the era of the ‘imperial presidency’. Ashbee and Ashford continued to demonstrate that “Congress – although typically vocal in its comments – played a subordinate role”.

Therefore, it might be stated the Constitution isn’t as restricting as critics would lead us to believe as a end result of energy has gradually evolved in the direction of the President.

It is necessary also to check the US Constitution to different Constitution. The British Constitution most notably, is not codified or entrenched. It is far easier to vary this Constitution – via an Act of Parliament, a courtroom ruling or an EU law in comparison to the US, an amendment of which requires a 2/3 majority in each houses and the approval of 3/4 of the states. Nevertheless, while Britain could appear to have extra ‘power’ over her country than the US’s “18th Century Stait Jacket”

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