Analysis of the Nevadan and U.S Constitutions

Analysis of the Nevadan and U.S Constitutions

Introduction

This research paper as the name suggests seeks to analyse the State of Nevada’s constitution and the American constitution. Further this paper will also explore the power narratives and judge’s electoral systems between Nevada and U.S. According to (Kant, 2005), the main role of a constitution is to allocate power to governments whilst at the same time imposing limits on those powers. The term constitutionalism basically refers to limited government. American constitutions, at both federal and state levels tend to divide power across several levels and components.

Origin of the Nevadan Constitution

The state of Nevada today continues to function under the 1964 constitution, but the same has been amended over 140 times. The 1964 constitution was the result of previous attempts in constitution making, notably the Cornwall constitution and the 1863 constitution. The Cornwall constitution was however never adopted even after conception, and to date there exists no evidence that it was ever presented for a vote. On the other hand, the 1863 constitution was indeed presented for a vote but it failed. Reasons advanced for the failure of the 1863 constitution included the perception that Governor Stewart intended to control the state government to further self interest and those of the mining companies and officials that he represented. This led to collective dissent by miners, party office hopefuls, farmers and merchants which resulted in the overwhelming 4-1 defeat of the constitution. According to (Bowers, 1996), the 1864 constitution differed from its defeated predecessor in a number of ways. Key among these include: provisions on taxation and colonization. The latter constitution offered a legislative framework that would determine which mining proceeds would be taxed, net or gross. This was in stark contrast to  the former constitution which allowed for mining taxation at the same rates as other properties, which had led to outcry with people insisting that if mines were to be taxed on the basis on net proceeds alone, so should farms, sawmills and other business interests.  The second major distinction between the 1863 and 1864 Nevada constitutions was the election of state officers. One notable development was that the vote on constitutional ratification and that of state officers, would take place on different days (Kant, 2005). This was a welcome development since voters now felt that they could support statehood and the constitution without being compelled to vote for a slew of candidates they did not like. In summary the abiding support and commitment Nevadans have over time displayed for constitutional growth, is evidenced by the 1851 squatters compact which was followed by the Cornwall constitution, the  christened ‘ineffective” constitution of 1859 and the failed constitution of 1863.

Origin of the U.S Constitution

The aftermath of the Revolutionary war of (1775-1783), in which the states won independence, the states were faced with problems related to the enforcement of law and order. The collection of taxes, regulation of trade and payment of public debt were also pressing needs (Goldschmidt, 1994). These were some of the early initiators of public discourse among statesmen such as George Washington and Alexander Hamilton on the need for the creation of new constitution.

The Constitutional Convention (1787)

It was through Hamilton’s efforts that the convention of 1874 was organised with a view to revising the Articles of Confederation. By May 25, 1874 about 12 states had responded to the call for convention. The only exception was Rhode Island which adopted hands off approach as it did not want the national government to interfere in its affairs. Of the 55 delegates that were present, 39 signed the US constitution (Landmark Supreme Court Decisions, 2009). The delegates present at the convention had other ideas, contrary to revising the Articles of Confederation, and instead opted to write a new plan of government and therein the United States Constitution was born. Notably, George Madison’s influence and efforts were pivotal during the convention and he was later christened the Father of the Constitution.

(1) Explain the significance of the fact that the Nevada constitution is lengthier than the U.S. Constitution. Why is it lengthier and what does this mean for the Nevada judges as they do their jobs of interpreting the state constitution compared to federal judges?

According to scholarly ideology on federalism, The Nevadan constitution is a frame of government type of constitution, which exclusively exists among the far west states and is reflective of the homogeneity in these states. Moreover, (Bower, 2006) states that the U.S. constitution contains 240 provisions and only 7,500 words  while the Nevadan constitution has almost double the number of provisions at 588, and almost thrice the number of words at 20,700. One of the reasons that makes Nevada’s constitution lengthier is the fact that, the Tenth Amendment affords to the states all powers not delegated to the federal government and not prohibited by it (Bower, 2006) t. State constitutions unlike the national constitution do not seek to grant power but rather to provide a framework that limits power reserved to the states. (Kant, 2005) posits that the reason the Nevadan constitution is lengthier than the federal one upon cursory comparison, is because Nevadans did not want to afford their judges, the same broad discretion that federal judges usually have on matters of interpreting the constitution. The Nevadan constitution lays key emphasis on detail and elaboration (Legal Council Bureau, 2014). This makes the Nevadan judges work much easier and much fairer since the law is easily interpretable and applicable. Further the broad details leave no room for lacunas and lapses in interpretation/comprehension unlike the federal constitution which is much briefer and leaves a lot of the interpretative aspect of the law to the judges.

 

 

(2) Compare how much power Nevada’s governor has in the state political system compared to the president’s power within the national system of government.

Introduction

In this section, this research paper seeks to decipher the power narrative between the Governor of Nevada and the President of America. As explained by (Bower, 2006), Nevada has had 27 governors between 1864 and 2006. Of these governors, 12 have been Republicans and eleven have been Democrats with the remaining four being split between the Silver Party and Silver Democrat Party. The 4 governors from the latter two categories served from 1895 to 1911. According to (Ransone 1982), governors draw upon a series of legally granted (formal) and informal (sources of power aimed at inducing political leverage) to achieve their policy goals. These formal and informal roles include but are not limited to public relations, patronage, bargaining skills, administrative control and popular support.

Veto Powers

The Governor of Nevada has the power to veto bills that originate from the Nevada State Legislature. However, the legislature has the power to override a governor’s veto by a vote of two thirds majority in both the Assembly and the Senate. The veto power vested on the Nevadan governor is similar to that vested on the President. Presidential vetoes can also be overridden by the Senate through a vote of two thirds majority.

According to (Longley, 2016) the veto power of the U.S president is limited, as the president cannot impose line item vetoes in which certain provisions of a bill are accepted while others are rejected. This follows the U.S Supreme courts declaration of line item veto as unconstitutional in 1998, after Congress had granted President Bill Clinton such veto powers in 1996 (Legal Council Bureau, 2014). Notably pocket vetoes are immune to being overridden by Congress since they entail Presidential refusal to ascension of a bill when Congress is not in session.

Pardoning Powers

Nevada Governor

In Nevada, the power to grant pardons is accorded to a boy referred to as the Board of Parole Commissioners. This board is constituted of the g Governor, judges of Nevada’s Supreme Court and the Attorney General (Longley, 2016). The board is required to convene twice a year with a view to affording consideration to clemency including applications for pardoning. The board enjoys adequate authority and it is immune from restrictions from the state legislature. The conditions granted or required for pardons must however not contravene state or national laws. The eligibility criteria for Nevadan pardons includes: the requirement that the seekers of pardoning must have completed their sentence and they must not be on parole.

American President

The U.S presidential pardon origins are explained in the (Federalist Papers, 1961) in which Alexander Hamilton justified the granting of exclusive control related to pardoning to the president. The U.S constitution invests in the President, power to grant Pardons and Reprieves except in the case of impeachment (Duker, 1977 p.475). According to (Love, 2010) despite its importance, pardon experienced a decline in the 1980’s and suffered collapse during the Clinton administration. The main difference between these gubernatorial and presidential pardons is that the former has less leeway in regards to pardoning unlike the president who has broad pardoning powers, for a greater number of offenses and to whomever he deems fit for pardoning (Love, 2010). In presidential pardons there is no clemency board although the president can seek advice from the Justice Department’s Office of the Pardon Attorney. The president is however under no obligation to heed their advice or recommendations. But in gubernatorial pardons the decision is not up to the Nevada governor and he is mandated to consult the clemency board.

Appointing Power

Most governors are enabled by law to nominate individuals to serve in a cabinet as well as other state executive branch positions. Most of these appointments are pro forma in nature and are subject to confirmation of either one or both houses of the legislature. Similarly, the president too appoints members to a cabinet (Banducci & Jeffrey, 1997). One major difference between the appointing powers of the Nevadan governor and the American president is that on federal level the judges are appointed by the president, but in the state of Nevada the voters elect the judges.

(3) How Nevada’s Legislature is Constrained by Nevada’s Forms of Direct Democracy

The institution of direct democracy has proven to be quite unpopular with legal scholars, journalists, elected officials and socials scientists (Donovan, 2007). Direct democracy generally entails the adoption of citizen initiated legislation.

Referenda

The use of referenda in direct democracy, involves the legislature’s placing of statutory or constitutional proposals before state electorates. A referendum is also used to void laws passed by legislatures. The use of referenda has constrained Nevada’s legislature in the sense that, sometimes there may be reasonable good in altering state law and policy but if the electorate does not realise this, reasonable good will fail to be done (Goldschmidt, 1994). This is because sometimes voters will vote hastily or act angrily through tyranny of numbers to frustrate beneficial legislation. This is because the voting process is not always objective in nature but subjective. The high threshold needed for holding a referendum similarly may be hard to satisfy.

Initiatives

Initiatives are in most cases the brainchildren of grass-roots politics. In Nevada, it provides a platform through which legislation can be proposed outside the bounds of the normal legislative process. As suggested by (Banducci & Jeffrey 1997) organized interests are vital to initiatives and in particular reference to qualifying proposals for ballots. Initiatives in the case of Nevada’s legislature have presented constraints by weakening legislation through the imposition of term limits and budgetary constraints. The Nevada Constitution through Section 9 Article II, grants authority to Nevadan citizen to perform a recall election. The right of recall is applicable to all elected officials after the first six months of the term to which an incumbent was elected. In June 2010, the Nevada Supreme Court ruled that signature on recall petitions must be on those who voted in the election at which f the official being recalled was voted in.

Statute Affirmation

This is a form of citizen initiated democracy that’s only available in Nevada. It entails the collection of voter signatures with a view to seeking affirmation of a standing state law through the ballot. If the majority of voters successfully affirm the law, the state’s legislature is barred from amending the law whatsoever (Kant, 2005). In addition, the state electorate can themselves amend or repeal the law through a direct vote if need ever arose. This law greatly weakens the legislature as it keeps their hands, and vests power on citizens who don’t always act out of goodwill or out of the understanding of what is legally tenable.

Legislative Sessions

Nevada operates within the framework of a constitutional mandate that restricts legislative sessions to 120 days. This essentially meets that the legislature convenes biennially. This 120 day annual limit presents legislative constraints as not all legislative goals and policies can be compressed to adapt and fit into such a limited time frame (Longley, 2016). This also means that less time is spent making or amending laws meaning the legislative function is hampered in many ways.

  1. The strengths and weaknesses of Nevada’s system of electing judges compared to the so-called Merit Plan

In Nevada, judges are elected by the electorate. According to a report by the (Legislative Counsel Bureau, 2014), the Supreme Court judges, District Court justices and justices of peace all serve six-year terms while some first term district judges serve four year terms.

Strengths of the Election of Judges System in Nevada

The process of being a judge requires impartiality and firm interpretation of the laws of the land. The election of judges fuels the prospect of judges fostering loyalty towards their electors (the people), their key constituents. The election of judges is reflective of the intent desires of some of America’s founding fathers such as Thomas Jefferson who once said that the exemption of judges from election is very dangerous since the people were the safest depositories of the ultimate powers of society (Love, 2010). Through elections, the electoral beliefs of every judicial candidate are affirmed. Since it is incredibly naive to believe that any judge is politically neutral, it is better for voters to know outright the political penchants of candidates rather than these being concealed through appointments.

Weaknesses of Nevada’s Judge Election System

The process of subjecting judges to popular election is fundamentally flawed because people may base decisions on charm and personality as opposed to more serious determinants. This may lead to appointment of judges who fall short in terms of education, legal training and experience (Longley, 2016). Another weakness of electing judges is that the campaign process is often riddled with corruption and bribery. Judges may not be able to resist these vices and as a result their impartiality is altered. This is especially the case since elected judges aren’t always the most qualified but rather the most moneyed.

Attempts to Adopt the Merit Plan

According to  (Goldschmidt, 1994) , the Missouri Plan originally known as the Missouri Non Partisan Court plan is a method of electing judges based on merit that originated from Missouri in 1940. Proponents of this method have identified it as a better alternative to the judicial elections that are characterized by fundraising and politics and are largely a political process.

Rejection timeline of the Merit Plan by Nevadans

In 1972 and 1978 Nevadan voters rejected proposed constitutional amendments that called for merit selection and retention of judges.  In 1992, the Nevadan electorate rejected a constitutional amendment that if approved would have allowed the Chief Justice to be selected by court members. In 1995, another proposed constitutional amendment (AJR27) that called for merit selection and judges’ retention was rejected. Other notable rejections concerning judges in Nevada was the 1996, 70-30 rejection of a constitutional amendment that would have imposed term limits on judges. In 1999, the Senate rejected AJR18 that sought to stagger the terms of district court judges, after it had been passed by the Assembly. In 2010, the Nevadan electorate rejected by a 58-42 vote margin a constitutional amendment calling for merit selection, retention elections and judicial performance evaluation.

Establishment of an Intermediate Court of Appeal

On November 4, 2014, the Nevada Creation of a State Intermediate Appellate Court, Question 1 was on the ballot paper. This was enabled through a legislatively conferred constitutional amendment where it was approved. The approval of SJR 14 marked the successful creation of the Intermediate Appellate Court / Court of Appeal. Following this all appeals were still be filed with the Nevadan Supreme Court after which the court would ten assign certain cases to the Supreme Court. In an attempt to reduce the cost on taxpayers, the Appellate Court was designated for operation within the Regional Justice Centre in Las Vegas

Conclusion

The Nevadan and American constitutions as this research paper has proven are totally different in length, detail and statutes. But the underlying theme is that their creators were both committed to creating not just documents but legacies for the just governance of men.

 

References

1-  Banducci, S., & Jeffrey, A,. (1997) The Legislative Process in the United States, 3d ed.            New York: . Oregon.

2-  Bowers, M. (2006). The Sagebrush State: Nevada’s History, Government and Politics. (3rd ed.).             Reno: University of Nevada Press.

3-  Donovan, T. (2007). Popular Support For Direct Democracy.

4-  Duker, W,. (1977) The President’s Power to Pardon: A Constitutional History, 18 Wm. &        Mary L. Rev. 475, http://scholarship.law.wm.edu/wmlr/vol18/iss3/3

5- Goldschmidt, J. (1994). University of Miami Law Review. Merit Selection: Current      Status, Procedures& Issues.-

6- Initiative, Referendum and Recall. (2012). Ncsl.org. Retrieved 5- April 2016, from             http://www.ncsl.org/research/elections-and-campaigns/initiative-referendum-and-   recall-overview.aspx

7-  Kant, D. (2005). Historical Background. Summary Of The Nevada State Constitution, 3-          23.

8-  Landmark Supreme Court Decisions. (2009). Elected V Appointed Judges; Which         Selection Process Is Best?

9-  Legal Council Bureau. (2014). Nevada’s Court System. Policy And Program Report, 1-8.

10- Longley, R. (2016). How a Presidential Veto Works and How Congress Can Respond.            About.com News & Issues. Retrieved 7 April 2016, from http://usgovinfo.about.com/od/thepresidentandcabinet/a/presveto.htm

11-  Love, M. (2010). The Twilight of the Pardon Power. Journal Of Law And Criminology,         100(3), 1169-1179.2-7.

12- Ransone, C,. (1982)  The American Governorship. Westport,. CT: Greenwood Press.

  1. The Constitution of America with Explanatory Notes adopted from World Encyclopaedia
  2. 2004. (2004) (pp. 6-14).

 

 

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