Politics & International Relations
Constitutional Powers
Constitutional powers refer to the authority and abilities granted to different branches of government by a country's constitution. These powers outline the scope of authority and responsibilities of each branch, such as the executive, legislative, and judicial branches. Constitutional powers are essential for maintaining the balance of power within a government and ensuring that no single branch becomes too dominant.
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5 Key excerpts on "Constitutional Powers"
eBook - ePubWar Powers
The Politics of Constitutional Authority
- Mariah Zeisberg(Author)
- 2013(Publication Date)
- Princeton University Press(Publisher)
This means the third condition of conflict—shared powers—can’t be directly translated into a principle mediating reciprocal relationships between the courts and other branches. Different constitutional language in different areas of constitutional policy also complicates the translation of the relational conception into policy domains outside of war. While the branches, or the national government and states, share powers in a variety of areas, the text sets a variety of different terms on which those powers are shared. 121 The basic methodology behind the relational conception can be extended to other domains of constitutional policy, but its exact premises and conclusions cannot. The image of a constitution as settlement, framework, or law elides the many other ways that constitutions function to order politics. Constitutions are law, but they are also resources with which political actors imagine themselves; ideological templates by which we imagine how to achieve in practice the goals we bring to and find in politics. From the point of view of the relational conception, it is the practical strategizing of officeholders seeking an outcome—security—in a specific institutional context that constitutionally disciplines the government’s security powers. It is in the practical pursuit of goals textured by the contingencies of the moment that the Constitution is made authoritative by those it empowers. 1 See M.J.C. Vile, Constitutionalism and the Separation of Powers, 2nd ed. (Indianapolis: Liberty Fund, 1998). For a discussion of power-sharing between the branches, see Walter Murphy et al., American Constitutional Interpretation (New York: Foundation Press, 2003), 81–94. 2 “Underdeterminacy” refers to legal text that constrains but does not fully fix a legal outcome. See Lawrence B
eBook - PDF- Michael D. Ramsey(Author)
- 2007(Publication Date)
- Harvard University Press(Publisher)
Sources of National Power I In seeking a framework for foreign affairs law in the Constitution’s text, we face a challenge on first principles. Perhaps the national government’s for- eign affairs powers do not arise from the Constitution, but exist outside it. Perhaps, that is, the United States can conduct diplomacy, make interna- tional agreements, fight wars and use its international economic power, not because the Constitution says it can, but because that is what it means to be a nation. These powers, we might say, are “inherent” in the “conception of nationality” and do not depend on anything written in the Constitution. This idea may sound extraordinary, because it runs contrary to our basic understanding of how the U.S. Constitution works. Ordinarily, we suppose, the national government’s powers arise from express or implied grants of powers in the Constitution (and limitations on state governments arise from the Constitution’s express or implied restrictions). This is what we mean by a Constitution of delegated powers, formed by a union of states. The Consti- tution’s Tenth Amendment says so explicitly: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” One would think, therefore, that the national government’s foreign affairs powers must, as the Amendment declares, be “delegated to the United States by the Constitu- tion.” But the suggestion that the national government has inherent, extra- constitutional foreign affairs powers is not as farfetched as it seems. The U.S. Supreme Court embraced the idea in 1936, in United States v. Curtiss- Wright Export Co. Justice George Sutherland wrote for the Court in that case that “the powers of external sovereignty”—meaning foreign affairs powers— “if they had never been mentioned in the Constitution, would have vested in the federal government as necessary concomitants of nationality .
eBook - PDFThe Powers of War and Peace
The Constitution and Foreign Affairs after 9/11
- John Yoo(Author)
- 2008(Publication Date)
- University of Chicago Press(Publisher)
As we will see, the line separating Articles I and II of the Constitution provides Congress with a significant check on the executive’s treatymaking power, just as it does on the war power and on the conduct of foreign affairs more generally. 182 international politics as law? • 183 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 [183], (2) Lines: 16 ——— -0.25pt ——— Normal P PgEnds: T [183], (2) Treaty Termination As we saw earlier, the Framers understood the conduct of foreign affairs to be executive in nature, while the legislature controlled funding and domestic regulation. This distinction found its expression in the funda-mental separation of executive and legislative powers in Articles I and II of the Constitution. The Framers contemplated that the president would exercise plenary control over the conduct of foreign policy, a point that met with rare agreement by Thomas Jefferson, Alexander Hamilton, and Chief Justice John Marshall. On the relatively few occasions where it has addressed foreign affairs, the Supreme Court has lent its approval to this interpretation of the president’s powers. Responsibility for the con-duct of foreign affairs and for protecting the national security are, as the Supreme Court has observed, “ ‘central’ Presidential domains.” 2 The pres-ident’s constitutional primacy flows from both his unique position in the constitutional structure and from the specific grants of authority in Arti-cle II that make the president both the chief executive of the nation and the commander in chief.
- Scott M. Matheson Jr., Scott M. Matheson(Authors)
- 2009(Publication Date)
- Harvard University Press(Publisher)
125 Greater assurance of a well-considered balance would be a clear statement from the political branches accompanied by a finding that the liberty constraint is nar-rowly tailored to serve a compelling governmental interest. The Bill of Rights restricts the exercise of delegated powers. If the executive relies on ambiguous legislation for action that curtails individual liberty or due process, the role of the Bill of Rights in the constitutional scheme should at least require clear agreement between the political branches before such ac-tion is upheld. Constitutional law requires the government to demonstrate a compelling interest to justify interference with important constitutional rights. National security can be a compelling government interest. If the exec-utive relies on a statute to demonstrate that interest, the statute must clearly authorize executive action that interferes with a constitutional right. Accord-ingly, an ambiguous statute should be insufficient to establish a compelling 22 Presidential Constitutionalism in Perilous Times interest. It is not too much to ask that the executive secure a clear statement from the Congress. Reliance on the political branches to secure liberty is not a guarantee. The Constitution, of course, prohibits the Congress and President, acting separately or together, from violating individual rights. As noted in the pre-vious discussion on executive supremacy, political safeguards for liberty work better when intrusions affect many people. 126 The political branches are more likely to ignore the claims of people without power. 127 Moreover, Congress’s role in checking the dangers of executive unilateralism may not be sufficient if it acts as a rubber stamp, which is more likely if the Presi-dent’s political party controls Congress. 128 Another shortcoming is that a ju-dicial focus on the process of inter-branch agreement may come at the expense of needed attention to the substantive rights at stake.
- Steven Wheatley(Author)
- 2010(Publication Date)
- Hart Publishing(Publisher)
The international community of state and non-state actors has developed an (admittedly amorphous) international constitutional order within which state exercise rights of political self-determination. The constitutionalisation of international law is a political project in the image of hegemonic power, suggesting the gradual emer-gence of a world community of liberal (democratic) states in which the individual is the primary unit of concern in the international order. Two developments support the analysis, the emergence of an international rule of law and body of international human rights law. 171 ibid at 1380. Ran Hirschl argues that all processes of constitutionalisation should be seen in terms of ‘hegemony preservation’ – unless proven otherwise, the most plausible explanation for constitutionalisation is that those political power holders, who either initiate or refrain from blocking reforms, assume that any limits on their own scope for political action will be compensated for by ‘the limits it might impose on rival political elements, their alternative worldviews, and policy preferences’: Ran Hirschl, ‘Preserving Hegemony? Assessing the Political Origins of the EU Constitution’ (2005) 3 International Journal of Constitutional Law 269, 278. 172 ibid at 1380. 173 ibid at 1372 (emphasis in original). Liberal Democratic Values in International Law 193 RULE OF LAW Increasingly, it is recognised that it is appropriate to speak about an international rule of law, or rule of international law. 174 Following an analysis of the concept applied in domestic societies, Stephane Beaulac concludes that the rule of law requires certainty, predictability and stability. 175 The idea involves the avoidance of the exercise of arbitrary power, and the constraint of discretionary power. 176 There is no reason to conclude that the concept cannot be applied to international law.
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