domingo, septiembre 16, 2007

Constitución norteamericana for dummies

Estaba leyendo un poco de Checks&balances de Daniel E. Brannen, una obra atractiva tanto por su título y ameno diseño, como por el valioso contenido, sumamente útil para una lectura introductoria a la normativa y práctica constitucional norteamericana. En Barnesandnoble está catalogada como age range 5-12. Los que no somos norteamericanos, en general somos infantes en el conocimiento de su constitución, aunque podamos tocar algo de óido por la vasta difusión de la cultura norteamericana, inspiradora a la vez de nuestro propio sistema político. Tomémoslo como constitución norteamericana for dummies.
Como uno de los los elementos clásicos del Estado (los otros son población y territorio), el poder es único, y su separación y división en 3 grandes órbitas con funciones diferentes hace a la organización jurídico-política plasmada en la letra de la constitución, junto al ejercicio y práctica que los hombres hacen de aquella.
La convención constituyente (Filadelfia, 1787) fue sobre todo un debate sobre separación de poderes. Habría que remontarse a los antecedentes de la confederación y la colonia, pero no tengo ganas, vamos al grano.

Fifty-five men attended the Constitutional Convention from May to September 1787. The men were delegates from twelve of the thirteen American states. (Rhode Island refused to
Guardian of Liberty.
The Founding Fathers proposed a new Constitution by arguing that American government was too weak under the Articles of Confederation. They also argued that American commerce, or business and trade, could be strengthened under the Constitution. Not everyone agreed with this assessment. A man writing under the pen name Centinel, which means ‘‘guard,’’ published a newspaper essay on December 22, 1787. As reprinted in The Founders’ Constitution,
Centinel said America’s problems were caused by large debts from the American Revolution, and by the American habit of spending money to import ‘‘merchandise and luxuries’’ from other countries.
Centinel said that if American commerce needed to be unified through federal regulation, the Articles of Confederation could be changed accordingly.
Creating a wholly new government with greatly expanded powers, however, would ‘‘render the citizens of America tenants at will of every species of property, of every enjoyment, and make them the mere drudges of government. The gilded [goldcovered] bait conceals corrosives that will eat up their whole substance.’’ In other words, Centinel thought the Constitution would destroy the states and individual liberty.

Checks and Balances

The Three Branches of the American Government 41 send delegates because the men in power there favored strong state governments, not a strong national government. They feared that a strong national government would be impossible for the people to control.)
According to Congress’s February resolution, the delegates were supposed to explore how to change the Articles of Confederation to strengthen the national government. After their first meeting on May 25, however, the delegates decided to scrap the Articles and write a whole new plan of government.
Forty-two of the delegates were current or former members of Congress, so they knew from experience the problems America had under the Articles of Confederation. An important reason for getting rid of the Articles was that it did not provide an energetic executive leader for the country.
The delegates, however, did not want an executive leader who was too powerful. Most of them agreed that the best government would be one that separated the legislative, executive, and
judicial powers into different branches. Writing in The Federalist, No. 47, delegate and future president James Madison (1751–1836) said, ‘‘The accumulation of all powers, legislative,
executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny
[dictatorship].’’
Thomas Jefferson (1743–1826), who would be the third president of the United States, agreed. He thought separation of the executive and legislative powers was essential if government
was to operate effectively. Writing a letter to Virginia delegate Edward Carrington (1748–1810) from Paris, where he was the American ambassador to France in August 1787, Jefferson said
(as reprinted in The Founder’s Constitution): I think it very material to separate in the hands of
Congress the Executive and Legislative powers, as the Judiciary already are in some degree. This I hope will be done. The want of it has been the source of more evil than we have ever experienced from any other cause. Nothing is so embarrassing nor so mischievous
in a great assembly as the details of execution. The smallest trifle of that kind occupies
as long as the most important act of legislation, and takes place of every thing else. Let any man recollect, or look over the files of Congress, he will observe the most important propositions hanging over from week to week and month to month, till the occasions have past them, and the thing never done. I have ever viewed the executive details as the greatest cause of evil to us, because they in fact place us as if we had no federal head, by diverting the attention of the head [Congress] from great to small objects.
To separate the powers of government, the delegates wrote the constitution to give the legislative power to Congress, the executive power to the president, and the judicial power to
the Supreme Court and the lower courts beneath it.

The broad separation of powers in the Constitution is a little misleading. In reality, the three branches share the powers of government through a system of checks and balances. Many
political scientists say this system creates a government of shared powers instead of a government of separated powers. Many delegates to the Constitutional Convention were
interested in checks and balances to prevent the president from being too strong. They knew the history of monarchical (rule by one) power in the world and of the colonists’ experiences under King George III. They knew the history of the abuse of executive power by colonial governors appointed by Great Britain.
Some convention delegates, however, wanted the president to be as powerful as the kings and queens of England. According to Forrest McDonald in The American Presidency, Maryland
delegate John Francis Mercer (1759–1821) said more than twenty of the fifty-five delegates were monarchists. Speaking at the convention on June 2, 1787, Delaware delegate John
Dickinson (1732–1808) said a limited form of monarchy, such as existed in Great Britain, was one of the best kinds of government in the world, but that the people of America would not
accept it for themselves. For the executive branch of the federal government, the system of checks and balances was a compromise between the monarchists and those who feared monarchy. Under the Constitution, Congress and the president actually share the power to make laws. The president and the Senate share the power to make treaties with foreign nations and to appoint people to important government offices. The president enforces the nation’s laws, but the judicial branch decides the cases brought by the president’s enforcement agencies. (For more information on checks and balances, see chapters 7 and 8.)

La separación a menudo provoca roces entre los poderes. Ejemplo de ello son las facultades militares.

Military powers
Article II, Section 1, makes the president ‘‘commander in chief of the army and navy of the United States.’’ Article I, Section 8, gives Congress the power ‘‘to make rules for the
government and regulation of the land and naval forces’’ and ‘‘to declare war.’’ This means that, in theory, Congress and the president share power over the armed forces.
In August 1787, a month before the end of the Constitutional Convention, a draft of the Constitution gave Congress the general power ‘‘to make war.’’ On August 17, delegates
James Madison and Elbridge Gerry (1744–1814) suggested changing ‘‘make war’’ to ‘‘declare war.’’ The president, they said, should have the power to defend America from attack without a
declaration of war. The delegates approved this change. Presidents have since used their power as commander in chief to conduct military operations, even offensive ones, without a declaration of war. As of 2005, Congress has declared war eleven times for five wars, including the War of 1812 (1812–15; one declaration against the United Kingdom), the Mexican-AmericanWar (1846–48; one declaration against Mexico), the Spanish-American War (1898; one declaration against Spain), World War I (1914–18; declarations against Germany and Austria-Hungary), and World War II (1939–45; declarations against Japan, Germany, Italy, Bulgaria, Hungary, and Romania). Every other war, including the Korean War (1950–53), Vietnam War (1954–75), and the Persian Gulf Wars, has been undeclared, though often supported by a congressional resolution. War powers The Constitution makes the president the commander in chief of the army and navy. Congress, however, has the power to create the army and navy, assign government money to them, make rules for their operation, and declare war.
Historians generally agree that the delegates to the Constitutional Convention carefully divided the military powers in the Constitution. They feared giving the president absolute control over the armed forces. They even rejected a proposal that the president have the power to declare war. By giving Congress the power to declare war, the delegates intended to prevent offensive military operations without congressional authorization. In other words, the power to declare war is not supposed to be a mere formality. Presidents are supposed to have the power to use military forces without a declaration of war only when necessary to defend against a sudden attack.
In practice, American military activity has not been constrained to declarations of war and defensive operations. American forces, however, have engaged in hundreds of offensive military conflicts. Congress often approves military action after it happens, but it also criticizes presidents for engaging in military activity without congressional authorization. Some scholars think presidents must have the power to engage in military activity whenever they think it is necessary, even without congressional approval. Others think such activity violates the Constitution and gives dangerous power to the president.
In 1973, Congress passed theWar Powers Resolution to try to strengthen the constitutional separation of military powers. President Nixon vetoed the bill, but both chambers of Congress
voted to override the veto.
The War Powers Resolution says presidents should send troops into hostile situations only with a congressional declaration of war or other congressional authorization, or to defend against an
attack. It also says presidents must consult with Congress whenever possible before committing troops to hostile situations. Finally, it requires presidents to remove troops from hostile situations within sixty days unless there is a congressional declaration of war or other
congressional authorization. Every president since the passage of the resolution has called it unconstitutional, or violated its terms, or both.
Presidents generally say their duty as commander in chief gives them power to use military forces without congressional approval. Occasionally some members of Congress protest when a
president violates the resolution, but Congress usually does nothing to enforce it. On December 20, 1989, for example, President George Bush (1924–; served 1989–93) sent fourteen thousand military forces to Panama to join thirteen thousand American forces already there to capture General Manuel Noriega (1938–), then a military leader of Panama. Noriega was accused of election fraud and drug violations. Bush never asked for congressional approval for the invasion. Because the invasion was popular with Americans, Congress did not complain.
Otro punto de conflicto, el executive privilege

Executive privilege
Executive privilege is presidential power to keep information secret from Congress, investigators, the courts, and the public. The Constitution does not mention an executive privilege.
Instead, presidents have created it through practice. The question of executive privilege first arose after November 1791, during President Washington’s first term in office. That month, General Arthur St. Clair (1736–1818) led a failed military expedition against Native Americans in which hundreds of American lives were lost. In March 1792, the House of Representatives created a committee to investigate the expedition. The committee asked Washington’s office to provide testimony and documents concerning the expedition. Washington met with his cabinet to consider the request. (The cabinet is a group of the president’s most important advisors,
including the heads of the executive departments.) With his cabinet’s advice, Washington decided that Congress could request information from a president, but that presidents could withhold information that might harm the public good. Although the failed expedition was embarrassing, Washington decided that disclosing information about it would not harm the public good, so he gave the House committee the information it wanted. Following Washington’s example, presidents generally have used the executive privilege to shield information relating to
national security, diplomatic negotiations, and other governmental functions for which secrecy is arguably important. Some experts agree that secrecy is necessary for presidents to handle
matters relating to national safety and the well-being of the public. Others believe secrecy is undemocratic because citizens cannot hold presidents accountable for their actions if the actions
are secret.
During the presidencies of Richard Nixon and Bill Clinton (1946–; served 1993–2001), the issue of executive privilege became particularly controversial. Nixon tried to use the privilege in 1973
to hide information about the Watergate scandal from a Senate investigation. The Watergate scandal involved burglary of the offices of the Democratic National Committee in 1972 by men
hired by the Republican Party. High-level officials in the Nixon administration may have had knowledge of the planned burglary, and Nixon himself may have participated in efforts to cover up the burglary. Clinton tried to use the privilege to hide information from a federal prosecutor relating to whether he lied under oath when he denied having a sexual relationship withMonica Lewinsky (1973–), a twenty-one-year-old White House intern.
In both cases, federal courts forced Nixon and Clinton to disclose the requested information. The general public sentiment held that Nixon and Clinton abused the privilege by using it to
try to hide personal information that did not relate to matters of national security or other important governmental functions.

3 comentarios:

CLAUDE CONTIN dijo...
Este comentario ha sido eliminado por el autor.
MarcosKtulu dijo...

Es esperanzador Claude, sure thing. Viste que hace poco fue un general a dar cuenta del estado de la situación en Iraq (la State of desunion sería). Más allá del discutible fondo de la decisión en 2003 y de la puja política [carroñera?] hoy en dia, internamente las formas se conservan. Institucionalmente 2 cosas son casi naturales de este sistema que compartimos en el diseño y en la práctica, aunque sin correspondencia en los beneficios: la tendencia hacia el presidencialismo y la fricción entre los poderes. Acá viene a colación una frase de Alberdi con mayor probabilidad de ser leída aquí que en todo este choclo bilingüe de más arriba: (yapa para los que leen los comments) "dad al poder ejecutivo todo el poder posible, pero dádselo por medio de la constitución."

CLAUDE CONTIN dijo...

Pobre Bill, le hicieron un lío bárbaro por Lewinsky, incluso lo criticaron por no haber elegido... una más linda.
El reciente caso de los ocho fiscales despedidos fue, para Pat Buchanan, un enredo de injerencias entre los poderes y un ataque contra el executive privilege por parte del Congreso, ya que según él el Presidente no tiene que rendir cuentas de cómo decide designar o remover a ciertos funcionarios.
Lo traigo a colación por el conflicto institucional. Está bueno ver cómo se manejan estas cosas en una república referencial.
Borré mi comentario anterior porque no recordaba haberlo dejado. Rarísimo. Igual gracias por la contestación. La frase de Alberdi es buenísima, siempre la recuerdo y, la verdad, me da un poco de vértigo.
Saludos.