The Spirit of American Government: A Study Of The Constitution: Its Origin, Influence And; Relation To Democracy — John Shaqi
The Spirit of American Government: A Study Of The Constitution: Its Origin, Influence And; Relation To DemocracySmith, J. Allen (James Allen)
History
The Spirit of American Government: A Study Of The Constitution: Its Origin, Influence And; Relation To Democracy
Smith, J. Allen (James Allen)
Constitutional history -- United States; United States -- Politics and government
The supremacy of the legislature under these early state constitutions
is seen also in the manner of appointment, the tenure and the powers of
the judiciary. In nine states[10] the judges were elected by the state
legislature, either with or without the consent of a council. In
Maryland, Massachusetts, New Hampshire, and Pennsylvania they were
appointed by the governor with the consent of the council. But this
really amounted to indirect legislative appointment in Maryland, since
both the governor and council in that state were elected annually by the
legislature. The legislature also had a voice in the appointment of
judges in Pennsylvania, New Hampshire and Massachusetts, since it
elected the executive in the first and the council in the others. In
nine states, then, the judges were elected directly by the legislature;
in one indirectly by the legislature; in the other three the legislature
participated in their election through an executive or a council of its
own choosing.
In every state the judges could be impeached by the lower branch of the
legislature and expelled from office on conviction by the senate or
other tribunal, as the constitution prescribed. Moreover, in six
states[11] they could be removed according to the English custom by the
executive on an address from both branches of the legislature. The term
of office of the judges in eight states[12] was during good behavior. In
New Jersey and Pennsylvania they were appointed for seven years, and in
Rhode Island, Connecticut, and Georgia they were chosen annually.
The legislature under these early state constitutions was hampered
neither by the executive nor by the courts. It had all law-making power
in its own hands. In no state could the courts thwart its purpose by
declaring its acts null and void. Unchecked by either executive or
judicial veto its supremacy was undisputed.
From the foregoing synopsis of the state constitutions of this period it
is evident that their framers rejected entirely the English theory of
checks and balances. The principle of separation of powers as expounded
by Montesquieu and Blackstone, found little favor with those who
controlled American politics at this time. Instead of trying to
construct a state government composed of coordinate branches, each
acting as a check upon the others, their aim was to make the legislature
supreme. In this respect the early state constitutions anticipated much
of the later development of the English government itself.
The checks and balances, and separation of powers, which characterized
the government of England and her American colonies in the eighteenth
century, resulted from the composite character of the English
Constitution--its mixture of monarchy, aristocracy, and democracy. It is
not surprising, then, that with the temporary ascendency of the
democratic spirit, the system of checks should have been largely
discarded.
Public-domain text, read in full here on John Shaqi.
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