Philosophical influences on the American Constitution

Montesquieu was a French Enlightenment philosopher who postulated the theory of separation of power. Montesquieu postulated that the doctrine of separation of power was essential to prevent one branch of government be too powerful to control. Typically, Montesquieu's theory of separation of power greatly influenced the drafting of the U.S. constitution, and the United States used Montesquieu's theoretical framework to entrench the concept of separation of power in their constitution. Following the U.S. constitution, three branches of governments were formed in the United States: Legislative, Executive and Judiciary. The function of each branch of government is distinct and does not overlap. The function of the legislature is to make law while the function of the executive is to executive the law, and the judiciary is to interpret the law. The separation of power also goes hand-in-hand with the theory of check and balance. In the United States, the legislature can remove the President as the head of the executive using the two-third majority. Moreover, the judiciary can declare the decision of executive unconstitutional. The executive can use the veto power to stop a bill passed by the House. More importantly, the executive and the House make a decision on the appointment of a judge.

Kilman et al. (2000) discuss legislative power under the U.S. constitution. The authors point out that legislative has the sole power to make law, and cannot delegate their functions to other agencies. On other hand, the executive power is vested on the President. Under Section 2 of the U.S. constitution, the power of the President is to command the Army, and has executive power to make treaties. However, the constitution does not allow the President to enforce the law, rather, there are subordinates, who are required to carry such duties.

The Congress in the United States can retrain the power of the Executive through laws passed in the House. While the President has the power to veto the bill passed in the House, however, such veto can be overridden by the two-third majority. The constitution also vest judiciary with power on judicial decision, and interpretation of the cases and constitution. While Congress establishes the Supreme Court and lower court in the United States, however, the President appoints the judges based on the consent and advise of the Senate. (Kilman,. & Costello 2000).

More than one and a half century after Montesquieu formulated the theory of separation of power, his work continued to guide jurist and politicians in the United States. Analysis of the Supreme Court reading reveals that Montesquieu is still having influence in the U.S. judicial decisions. For example, the Supreme Court invoked Montesquieu doctrine

under Bowsher v. Synar "that struck down the Gramm-Rudman deficit reduction bill as an unconstitutional delegation of legislative power, and Buckley v. Valeo,6 a case upholding the constitutionality of the Federal Election Commission." (Bergman, 1990 p 2).

"The Supreme Court also invoked Montesquieu's authority in I.N.S. v. Chadha, a decision that struck down the legislative veto of administrative decisions." (Bergman, 1990 p 2).

While Montesquieu is particularly remembered for the theory of separation of power, the Supreme Court still relied on the Montesquieu authority to make decisions on issues such as treason, perjury, domestic relations, and penal reform.

The United States is a member of the United Nations and the country has also entered into the multilateral and bilateral treaties with countries across the world. (Nurser, 2005). Thus, the decisions of these treaties are binding on the United States. For example, U.S. is the signatory member of the United Nations, thus, the U.S. is to follow the U.N declaration of human rights, and ensure that these rights are respected by the U.S. constitution. (Brown, 2016). Moreover, the U.S. is obliged to respect the human rights of other countries globally, and if they fail to follow this decision, they can face international criticisms. While the Bill of Rights (1791) is designed to protect the rights of the American citizens, nevertheless, the United States is forced to extend the same rights to other nationalities through the application of the UN human rights.

UNIT 2 DISCUSSION

The United States constitution is established under the concept of federalism, and Section 8 of Article I of the United States grants the Congress the power to mint money, declare war, regulate commerce, raise armies and establish roads and post offices. However, there are still debate about between state rights and federal power. Harwood, (2002) cites an example of controversy between the federal and state rights over the gun control where the debate revolves around the best strategy to control firearms. For example, Missouri has fought to weaken the authority of the federal government over firearms in their state. There is also controversy over the Commerce Clause. There has been dispute between federal government about who has the right to tax certain foreign goods in Missouri

UNIT 3 DISCUSSION