By Ira Sharkansky, Ph.D
JERUSALEM — While many countries have adopted a separation of powers, the American case is an extreme example of a distinct executive, not associated with a parliament, as well as a further division between the federal government and 50 states.
The full story of the United States must include the division of the legislative branch into two distinct houses, which is a pattern followed by almost all of the state governments.
Lots of separation, with details laid out in the Constitution and subsequent legislation about the powers of the President, the House, Senate, and Courts. But there’s a lot of vagueness and room for conflict between what’s written and what happens in practice.
Nancy Pelosi’s recent visit to Taiwan is a case in point. Was the Speaker of the House setting forth her own foreign policy in a manner likely to conflict with the Government of China? And could her actions lead to increased conflict between China, Taiwan, and the United States?
The Constitution provides for the superiority of federal acts against those of the States, but recent Supreme Court decisions about two of the most controversial issues in the country—abortion and the right to bear arms—have returned to the States large authority over abortion, and limited the extent to which the states can control the people’s right to bear arms.
Both cases continue to boil, and are unlikely to reach a clear set of limits anytime soon.
Among the indications of conflict are cases where federal judges have acted to preserve rights to abortion; where the President of the United States has acted to facilitate travel from states that prevent abortion to states that allow it; where a number of states have acted to limit or forbid abortion; and where the people of Kansas voted in a referendum to allow abortion.
Southern states are generally opposed to abortion. And the following states, outside of the south, have responded to the Supreme Court with their own restrictions: Oklahoma, South Dakota, West Virginia, Idaho, and Arizona.
California and Colorado have acted to facilitate abortion, with California willing to pay for it with state funds.
The majority of Americans favor abortion, but officials in a number of states have acted otherwise.
There’s an indication in how justices voted on Roe v Wade, and how a different cluster of Justices voted against Roe v Wade nearly 50 years later, of an increased partisanship in judicial politics.
The earlier decision, by a vote of 7 to 2, pit six Justices appointed by Republican Presidents, and one appointed by Franklin D. Roosevelt, against one Justice appointed by John Kennedy and another appointed by Richard Nixon.
The later decision saw six Justices appointed by Republican Presidents against three appointed by Democrats.
The vote by a Justice appointed by John Kennedy against Roe v Wade in 1973 suggests the element of Catholicism in the picture. Fifty years ago, the position of the Church was clearer than today, while today Catholic Americans poll pretty much like others in favor of abortion.
On the matter of guns: there are more of them than there are people in the U.S. And state actions to limit access have come up against the U.S. Supreme Court, as well as state politics to limit what limitations can be put into effect.
Wikipedia summarizes the complexity of gun regulation or its lack:
- Some states and localities require that a person obtain a license or permit in order to purchase or possess firearms.
- Some states and localities require that individual firearms be registered with the police or with another law enforcement agency.
- All states allow some form of concealed carry, the carrying of a concealed firearm in public.
- Many states allow some form of open carry, the carrying of an unconcealed firearm in public on one’s person or in a vehicle.
- Some states have state preemption for some or all gun laws, which means that only the state can legally regulate firearms. In other states, local governments can pass their own gun laws more restrictive than those of the state.
- Some states and localities place additional restrictions on certain semi-automatic firearms that they have defined as assault weapons, or on magazines that can hold more than a certain number of rounds of ammunition.
- NFA weapons are weapons that are heavily restricted at a federal level by the National Firearms Act of 1934 and the Firearm Owners Protection Act of 1986. These include automatic firearms (such as machine guns), short-barreled shotguns, and short-barreled rifles. Some states and localities place additional restrictions on such weapons.
- Some states have enacted castle doctrine or stand-your-ground laws, which provide a legal basis for individuals to use deadly force in self-defense in certain situations, without a duty to flee or retreat if possible.
- In some states, peaceable journey laws give additional leeway for the possession of firearms by travelers who are passing through to another destination.
- Some states require a background check of the buyer when a firearm is sold by a private party. (Federal law requires background checks for sales by licensed gun dealers, and for any interstate sales.)
- Some states have enacted red flag laws that enable a judge to issue an order to temporarily confiscate the firearms of a person who presents an imminent threat to others or to themselves.