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Legally Speaking

Balance of Power

06/01/2007 - In my last article I discussed the facat the the Constitution of the United States is designed to be a living document that adapts to the changes our country is going through. This flexibility in the United States Constitution allows the contract between American citizens and their government to adjust to changes in areas such as politics, economics or technology as our society develops.

One of the key elements in the adaptive nature of the Constitution of the United States is evidenced in the first three articles of that document. Article One of the Constitution sets out the power vested in the Congress. Article Two of the Constitution sets out the powers vested in the Executive branch of the government (the President and his cabinet). Article Three of the Constitution sets out the powers vested in the jucicial branch of government. In this simple fashion the founders of our nation delegated the power to rule this country, not with one person or group of people but with three separate governing branches with separate and divisible powers.

This power balance is built into the constitution. Here are some examples of the balancing powers built into our living constitution. Congress (the Legislative branch) can impeach a President. The President and the Congress select judges. The judges can find the laws passed by the Congress unconstitutional. The President can veto the laws passed by Congress. In essence, each branch of government has powers over, and is controlled by, the other branches of government and no branch has ultimate power.

A modern example of the separation of powers took place in the 2000 presidential election of George Bush versus Al Gore. In that unique election the United States Supreme Court (Judicial branch) played a major role in deciding who the next President (Executive branch) would be.

This balance of power has constantly adjusted since the ratification of the original constitution. An example of how this balance of power can affect the everyday functions of the government is the change in judicial powers caused by the Federal Sentencing Guidelines. In 1986, Congress established the Federal Sentencing Guidelines in which the power of judges (the Judicial branch) were curtailed and the judges could only sentence convicted individuals within certain sentencing ranges. From 1986 until 2005, these legislative "guidelines" removed certain sentencing discretion from judges. In the last couple of years, the Courts through the use of case law have found aspects of these legislative "guidelines" to be in violation of the United States Constitution and returned discretionary power to the sentencing courts (Judicial branch). The changing discretion of sentencing judges in the past 20 years is a perfect example of how the power of any branch of government can be modified to meet the need of our nation's present political climate.

In conclusion, the brilliance of the United States Constitution comes from its ability to change with the times and, in large part, that adaptability is set out in the first three Articles of the Constitution that establish the powers of the Legislative, Executive and Judicial branches of the United States Government.

Tom Sedar is an attorney-at-law practicing in Casper.

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