1. us constitution and federalism Flashcards
1
Q
federalism
A
the relationship between the federal government and the state
2
Q
the us constitution
A
- a constitution is a set of rules and principles by which a state is governed
- these rules and principles usually set out the relationship between the central/federal government and other tiers of government, between the different institutions of government and the governed
- the US constitution was written by the Founding Fathers in 1787
- it is both codified and entrenched (only been changed 27 times)
- the constitution is sovereign
- it includes the bill of rights (there are 10, written in 1791), which limits the government’s ability to restrict what people say or do
3
Q
the origins of the constitution
A
- 1776: the British colonies in North America, aggrieved by the tyrannical rule of the British
- 1781: the first attempt at devising a system of government, the articles of confederation was adopted; influenced by the suspicion of central government, a loose confederation was established, with considerable power in the 13 state, but only a weak central authority
- 1790: ratification of the constitution by all 13 original stated was completed
- 1788: constitution ratified
4
Q
federalists argued for
A
- increase in the power of the presidency
- want a national army
- liberty is in danger from the people
5
Q
republicans argued for
A
- want to diminish the power of the presidency (don’t want one)
- want a militia of states
- liberty is in danger from the government
6
Q
‘the great compromise’
A
- the constitution was called the ‘great compromise’ between the federalists and republicans
- the resulting constitution was worded in a vague manner, both to make it acceptable to people with differing views and also to allow some flexibility in how it was interpreted
- its most notable features included codification into a framework, allocating different powers to different branches of government, known as the separation of powers and entrenchment, making amendments a complex process requiring supermajorities (2/3 of congress and states agree to the states)
7
Q
fundamental law
A
the constitution creates fundamental law (it codifies the core values of the people)
8
Q
constitutional framework
A
- constitution
- federal government
- legislature
- 3a. congress
- 3aii. house of representatives, senate - executive
- 3a. president
- 3ai. vice president
- 3aii. cabinet - judiciary
- 3a. supreme court
- 3ai. other federal court
9
Q
the three branches of government
A
- in the USA, the congress, the body which makes the law, is independent
- it is bicameral, consisting of the senate and the house of representatives
- the president holds executive power and is therefore responsible for implementation of the law
- the supreme court is at the head of the federal judiciary responsible for interpreting and applying the law
- the founding fathers applied a strict separation of powers
- the three branches are independent in that no individual can simultaneously be a member of more than one branch, but are also interdependent in that each cannot effectively operate without the cooperation of the other two
- the separation of powers is also ensured by taking a system of staggered elections, which is designed to prevent a populist group taking possession of all government institutions at the same time
- the 435 members of the congress are all elected every 2 years
- there are 100 senators who each serve 6 year terms, with one third elected every 2 years
- the president serves for a term of 4 years and can serve a maximum of two terms
- members of the supreme court are appointed by the president but their appointment must be ratified by the senate; they hold their position for life
10
Q
the preamble of the constitution
A
- an introduction that sets out the main themes/principles of the constitution
- uniting the states themselves
11
Q
article 1 of the constitution
A
- sets up the legislature (congress) and bicameralism
- talks about its membership, composition and rules of proceedings
- article 1, section 8: enumerated powers (explicit and codified) - the last bullet point is the elastic clause/necessary and proper clause (congress have the right to pass any law deemed ‘necessary’)
12
Q
article 2 of the constitution
A
- sets up the executive branch and the president
- sets up the explicit presidential powers, e.g. commander in chief of the army and the navy
- sets up checks and balances
- e.g. a president can sign a treaty but it has to be ratified by the senate
13
Q
article 3 of the constitution
A
- outlines the role of the judiciary
- sets up the supreme court and its power, and the lower courts
- section 2: the supreme court is a court of appeal - it has original jurisdiction (e.g. Al Gore V. the state of Florida)
- section 3: refers to treason
14
Q
article 4 of the constitution
A
- about the states themselves
- all states have the same ‘privileges and immunities’
- section 3: the creation of new states, can be admitted to congress
- section 4: republican form of government
15
Q
article 5 of the constitution
A
- how the constitution can be amended
- needs a supermajority
16
Q
article 6 of the constitution
A
- practicalities of the constitution coming into law
- treaties become for states as a whole, i.e. if one state is in debt, the debt is shared around the USA
- nicknamed the ‘miscellaneous article’
17
Q
article 7 of the constitution
A
the confirmation/ratification process
18
Q
the constitutional amendment process
A
- formal amendment to the US constitution is a lengthy and complex process, as the founding fathers intended it to be difficult
- the constitution provides for two alternative methods of amendment: through federal and state legislatures, or through constitutional conventions at both federal and state levels, though the latter option has only been used once
19
Q
amending the constitution
A
- step 1: a 2/3 votes of both houses of congress
- step 2: 3/4 of the 50 state legislatures
= new amendment to the constitution
20
Q
constitutional amendment statistics
A
- number of constitutional amendments ratified 1790-1791: 10
- number of constitutional amendments ratified 1792 to today: 17
21
Q
why has the number of constitutional amendments ratified since 1971 been so limited
A
- the amendment process is very difficult and time consuming (and expensive)
- they must be passed by a supermajority by both houses of congress, then ratified by the legislatures of 3/4 of the states
- it is notoriously difficult for republicans and democrats to compromise and therefore few pass
22
Q
the bill of rights
A
the first ten amendments
23
Q
amendment I
A
- provides several rights protections
- e.g. freedom of speech and press, to assemble/gather with a group to protest or for other reasons, to ask the government to fix problems
- protects the right to religious beliefs/practices; it also prevents the government from creating or favouring a religion
24
Q
amendment II
A
the right to keep and bear arms
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amendment III
prevents the government from forcing homeowners to allow soldiers to use their homes
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amendment IV
bars the government from unreasonable search and seizure of an individual or their private property
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amendment V
serious criminal charges must be started by a grand jury. a person can't be tried twice for the same offense (double jeopardy) or have property taken away without just compensation. people have the right against self-incrimination and cannot be imprisoned without due process of law
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amendment VI
in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state/district in which the crime was committed. the right to be informed of criminal charges. witnesses must face the accused, and the accused is allowed their own witnesses and to be represented by a lawyer
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amendment VII
in suits at common law, where the value in controversy shall exceed $20, the right of trial by jury shall be preserved in federal civil cases
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amendment VIII
excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted
31
amendment IX
listing specific rights in the constitution does not mean that people do not have other rights that have not been spelled out
32
amendment X
the federal government only has those powers delegated in the constitution, all laws not in the constitution are the right of state
33
why has the constitution been amended so rarely
- the founding fathers did this intentionally so that the constitution is hard to amend, so that it is not subject to emotional amendments/populist political whims of the day
- only 0.2% of amendments pass
34
how has the constitution been informally amended
- through supreme court interpretation
- informal amendments are changes that affect how the constitution is interpreted
- e.g. Brown v. board of education, the supreme court ruled that racial segregation in public schools violated the equal protection clause of the fourteenth amendment, effectively overturning the 1896 Plessy v. Ferguson
- e.g. Roe v. Wade
35
27th amendment
- forbids any changes to the salary of congress members from taking effect until the next election concludes
- the main objection that has been made by scholars to the legality of the ratification process of the 27th amendment is that article 5 contemplates a simultaneous approval of a proposed amendment between when Congress votes on it and when three-quarters of the states ratify it
- ratified in 1992
36
key principles of the US constitution
- federalism: the relationship between the federal government and the states, established in article 1, section 8 of the constitution and amendment 10
- separation of powers: there is a strict SoP, the three branches are independent of each other
- checks and balances: makes the branches interdependent
- bipartisanship: collaboration of the 2 major parties (e.g. needing a supermajority)
- limited government: government doesn't dictate everything, the idea that the federal government is small
37
principles of the constitution: federalism
- federalism is the principle that divides power between the national government and the state governments
- the federal structure of the us constitution was designed to enable the states to retain a high degree of autonomy (to make sure they can fend for themselves, prevention of tyranny of the majority), while allowing an adequately strong central government
- sovereignty is shared between the federal government in Washington and the 50 state governments, though the detailed nature of the relationship was left undefined (article 1, section 8 - necessary and proper clause and amendment 10) in the constitution and has changed considerably since 1791
38
why did the US constitution adopt a federalist structure of government
- federal system avoided the extreme of disunity under the original articles and the extreme of overcentralisation under british rule
- want states to have their own identities/autonomy - its embedded through states having their own constitution
- ensures a string central government (enumerated powers) because it ensures/establishes the union itself
39
principles of the constitution: separation of powers
- separation of powers is a theory of government whereby political power is distributed among the three branches of government (legislature, executive, judiciary), acting independently and interdependently (checks and balances)
- this is one way the founding fathers aimed to prevent tyranny
- the framers used the work of the french philosopher Montesquieu
- in 1748, he commented 'when the legislative and the executive are united in the same person... there can be no liberty'
- it was decided by the founding fathers that co equal branches would check each other
- Neustadt argues that rather than creating a government of 'separate powers', the founding fathers created a government institution that shared powers
40
why did the founding fathers choose to divide the powers of government between three separate branches
- to prevent one branch from becoming overly powerful
- avoid tyranny
- for each legislation, all three branches have to agree because they all have the capacity to block it
- each branch has an independent power
- no one is allowed to be in more than one branch at the same time to avoid a concentration of power
41
ObamaCare (2010)
- the patient protection and affordable care act
- all branches are required to play a part in passing the act
- both houses of congress had to pass the bill
- had to be signed by the president
42
principles of the constitution: checks and balances
the theory of the separation of powers is maintained by a system of checks and balances, which gives each branch powers to prevent one becoming too powerful
43
checks on the legislative branch
- the executive (the branch that has power) can veto legislation (check/balance) from the legislative branch (branch whose power is checked)
- the judicial branch (the branch that has power) can declare acts of congress unconstitutional (check/balance)
44
checks on the judicial branch
- the legislative branch (the branch that has power) can approve constitutional amendments to overrule judicial decisions (check/balance)
- the executive branch (branch that has power) can appoint federal judges (check/balance)
45
checks on the executive branch
- the legislative branch (the branch that has power) can impeach and remove presidents (check/balance)
- the judicial branch (the branch that has power) can declare executive actions unconstitutional (check/balance)
- the executive has the most checks because the founding fathers wanted to avoid a monarchy and tyranny of power/majority
46
examples of checks and balances
- congress can propose constitutional amendment to, in effect, overturn a decision of the supreme court, e.g. 1896 the supreme court declared federal income to be unconstitutional, but congress proposed the 16th amendment, granting congress the power to levy income tax
- congress overriding the president's veto, congress overrode Obama's veto for the justices against sponsors of terrorism act (2016)
- the supreme court can declare acts of congress to be unconstitutional using judicial review, e.g. US v. Windsor, the supreme court declared the defence of marriage act (1996) unconstitutional
47
principles of the constitution: bipartisanship
- bipartisanship is the principle that although the parties in a two party system like the USA have different traditions, policies and priorities they are prepared to work with each other and seek agreement through negotiation and compromise in the national interest
- even in the 1990s, which saw increasing polarisation between the democratic and republican parties, there have been examples of bipartisan cooperation between politicians of different parties
48
the Hatch Kennedy Act
- the Hatch - Kennedy Act establishing the state children's health insurance programme (1997)
- senator Orrin Hatch (republican) worked with Ted Kennedy (democrat) to pass the healthcare insurance for children
- provides federal matching funds to states to provide health coverage to children in families with incomes too high to qualify for medicaid but who could not afford private coverage
- very successful
49
principles of the constitution: limited government
- limited government is the principle that the government does not have boundless power, but instead that there are clearly delineated limits to what the government can do, which are spelled out in a codified and entrenched constitution
- the separation of powers and the system of checks and balances are examples of how the founding fathers tried to limit the powers of government
- similarly, the 9th and 10th amendments were intended to prevent the diminution of rights of the people and states
- however, two key passages in article 1 section 8 of the constitution allow a flexibility which in practice allowed the federal government powers to grow: clause 3 (the commerce clause), clause 18 (the elastic clause)
- the flexible wording and supreme court interpretation have allowed the federal government to expand its powers recently
50
article 1, section 8, clause 3
- the commerce clause
- enumerated power that states that congress shall have power 'to regulate commerce with foreign nations and among several states'
- e.g. congress can pass regulations that restrict what can be carried on airlines
- these clauses allow government power to expand
51
article 1, section 8, clause 18
- the 'necessary and proper' clause
- concludes congress's enumerated powers
- to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the US, or in any department or officer thereof
- allows government power to be expanded
52
the main characteristics of US federalism
- despite being a key principle of the constitution, federalism is a word not found in the constitution
- federalism is not a fixed concept, as America has changed so too has federalism
53
the phases of federalism
- dual federalism (1791)
- cooperative federalism (1930s)
- co-evercive federalism (1954 - 1969)
- new federalism (1969 - 1989)
- 1989 - 2018
54
dual federalism
- 1791
- dual federalism = limited government
- states have more power than federal government
- states undertook most governing, supported by supreme court rulings
- the founding fathers envisages a small federal government with limited powers wile state governments directly governed citizens
- the 10th amendment protected state rights
- this type of federalism is often referred to as layer cake federalism
- federal government - controls tariffs money, interstate transport, foreign policy and owns public land
- state government - controls property laws, inheritance law, education, land use, public health; have policed powers
55
cooperative federalism
- 1930s
- FDR's New Deal gave the federal government much more power at the expense of states' rights rebalancing responsibilities
- federal government took responsibility in matters such unemployment benefit and providing local local schools
- the clear distinctions between federal and state governments had been blurred, which is why cooperative federalism is sometimes referred to as marble cake federalism
- project grants - states will 'apply' for funding, e.g. building a bridge
- often referred to as marble cake federalism
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coercive federalism
- 1954 - 69
- the Warren court issued a series of judgements that states had to conform too
- e.g. Brown V. board of education (1954)
- LBJ's great society reforms expanded this even further
57
new federalism
- 1969 - 1989
- a Nixon phrase
- promised to return power to states
- Reagan pledged to 'roll back the frontiers of the state
- block grants: give states power as they can spend the money how they want, giving them greater independence over capital
58
1989 - 2018 federalism
- Clinton in 1996 claimed 'the era of big government is over'
- however, under G.W. Bush and Obama, states' rights moved towards the federal government due to national crises, supreme court judgements and attempts to increase presidential power
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legal - consequences of federalism
- variety in state law
- e.g. the age at which a person can marry, or the death penalty
- e.g. in California, marijuana has been legalised
60
policy - consequences of federalism
- states can act as 'policy laboratories'
- experimenting with new solutions to old problems
- in areas such as healthcare provision or immigration reform
- e.g. healthcare reform in Massachusetts
61
election - consequences of federalism
- all US elections run under state law
- even the presidential election is really 50 separate state based elections with the outcome decided by the state based electoral college
- each state decides how candidates will be chosen for elections in their state etc.
62
parties - consequences of federalism
- political parties in America are essentially de centralised, state based parties
- e.g. Texas democrats are more conservative than Massachusetts democrats
- e.g. 2016 presidential nomination contest - republicans in Colorado, North Dakota and Wyoming didn't hold a primary or caucus, and instead chose their national convention delegates through state party convention
63
economic - consequences of federalism
- huge federal grants are going into states
- income tax is levied by both the federal government and some state governments
- different property taxes are levied by the state government
- sales taxes vary between different cities
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regionalism - consequences of federalism
- the regions (south, mid west, northeast, west) have distinct cultural and ideological differences
- e.g. what is popular in the bible belt would not be in new england
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comparing UK and US constitution: location of sovereignty
- the US has a codified constitution and therefore the power is located in the document itself; the constitution is sovereign
- the UK has an uncodified constitution, thus making parliament sovereign
66
comparing UK and US constitution: checks and balances
- both the US and UK supreme courts can use judicial review, although to differing extents
- both legislative branches have the provision to remove the executive: US - impeachment, UK - vote of no confidence
- in the US, there are significantly more checks on the executive than any other branch in the US
67
comparing UK and US constitution: separation of powers
- US: there is a distinct separation of powers
- UK: fusion of powers; the prime minister sits in both the legislature and the executive (pre constitutional reform, one person could be in all 3 branches)
- both supreme courts are separate
- the US has a very distinct separation of powers as the founding fathers feared a tyranny of the majority
68
comparing UK and US constitution: regional powers
- US: federalism
- UK: devolution
- states have enumerated/reserved powers, in a similar sense to devolved nations having devolved powers in statute law
- devolution is asymmetrical and an ongoing process, whereas federalism is permanent
- devolution is reversible (although unlikely) due to parliamentary sovereignty, whereas the rights of federal governments are protected/entrenched in the constitution
69
comparing UK and US constitution: rights protection
- US: the bill of rights (amendments 1-10), supreme court ruling
- UK: ECHR, human rights act (1998), supreme court ruling
- the main function for both supreme courts is upholding the rights of citizens
- the US supreme court has more power and the ability to strike down legislation, whereas the UK supreme court can only issue declarations of incompatibility
70
comparing UK and US constitution: process of amending the constitution
- US: constitution is entrenched and needs a supermajority and a bipartisan approach to amend the constitution. purposefully difficult to amend
- UK: constitution is flexible as it is uncodified, only need a simple majority, unentrenched and therefore easy to amend
- in the UK, both the house of commons and the house of lords (in practice) need to agree in order to pass a bill; similarly in the US both houses of congress need to agree
- its easier to pass legislation in the UK, than in the US
71
codification
where key constitutional provisions are provided for within a single, written document
72
entrenchment
the means through which constitutional changes are protected from change
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enumerated powers
powers that the constitution specifically gives federal government
74
limited government
the principle that an overarching and over reaching government is unacceptable, the government should operate a minimalist intervention policy where it concerns a person's individual liberties or the economy
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'principle'
concepts/beliefs that a government is built on
76
separation of powers
the vesting of legislative executive and judiciary powers of government in separate bodies
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US V. Lopez 1995
- reaffirmed limits on congressional powers
- Alphonso Lopez was arrested for carrying a concealed weapon into his high school, he was charged under the Gun-Free School Zones Act of 1990, a congressional law that banned people from bringing guns into school zones
- Lopez challenged his conviction, arguing that the law exceeded Congress’s power under the Commerce Clause
- this was the first time that the Court struck down a law passed under Congress’s commerce power since the New Deal Revolution of 1937
- in the end, the Court used Lopez to push back against some of the broadest assertions of congressional power under the Commerce Clause—reaffirming that the Constitution creates a national government with limited powers
78
significance of bipartisanship
- parties must cooperate, despite there being no mention of political parties in the constitution because of separation of powers and corresponding checks and balances between the three branches
- cooperate between parties does not always happen and instead gridlock can be the result
- this raises the issue of divided government
- e.g. October 2023 - federal budget
79
federalism under George W. Bush (2001-2009)
- he presided over the largest overall increase in inflation adjusted federal government spending since Lyndon Johnson's great society programme of the mid 1960s
- total federal government spending grew by 33% during Bush's first term (2001-2005)
- four policy areas accounted for this expansion of the federal government under Bush: education, medicare homeland security and the economy following the wall street and banking collapse of 2008
- e.g. - in December 2003, Bush signed a major medicare expansion bill into law
80
education under George W. Bush (federalism)
- Bush wanted to use the re authorisation of the 1995 elementary and secondary education act as a vehicle for his education reforms
- 'no child left behind' - the most sweeping changes in federal education policy since the 1960s
- it was a major expansion of the federal government's role in education
81
economy and jobs under George W. Bush (federalism)
- big government republicanism in September 2008
- when Bush authorised secretary of the treasury Henry Paulson to take control of two troubled privately owned but government sponsored mortgage companies (the federal national mortgage association and the federal home loan mortgage corporation)
82
federalism under Obama (2009 - 2017)
- Obama administration was more focused on domestic policy as a way of delivering his 'change' agenda
- domestic policy is increasingly in the domain of the states
- by 2012, the ratio of state and local government employees to federal employees was the highest since before Roosevelt's new deal
- federal government assistance to the states increased to 4.6% of the GDP in the first year of the Obama administration (2009)
- money from the federal government accounted for 30% of state government spending in 2009
- Obama put in place a law that said that Americans who could not afford to buy health insurance would be covered by an expansion of the federal-state medicaid programme
- states had to participate in this expansion or lose all federal funding for medicaid, the largest federal government grant programme
- a number of states sued, arguing that this was a violation of the principles of federalism and was therefore unconstitutional, saying that provision was a coercion rather than persuasion
- in national federation if independent business v. Sebelius (2012) - the supreme court agreed and struck down the medicaid provision in law, a victory for the states
83
interpretation of the constitution
- conservatives are likely to interpret the constitution in a strict or literal fashion, they look at the original intentions of the founding fathers, favouring states' rights over the power of federal government
- liberals tend to interpret the constitution in a loose fashion, reading elements into the document that they think the framers of the constitution would approve of, they tend to favour the power of federal government over the state's rights
84
the US constitution is difficult to amend
- the amendment process is clear and allows for flexibility where the constitution can be changed
- the amendment proves is difficult because to protect the constitution from being changed in response to short term trends
- the constitution provides clarity about rights of US citizens that are enforced by the supreme court,. which regularly strikes down laws that are unconstitutional
- the need for congress and the states to agree and for supermajorities makes the amendment process near impossible
85
vagueness of the constitution
- the vagueness of the constitution has allowed the supreme court to make interpretative judgements, ensuring that the constitution remains relevant today
- e.g. Roe v. Wade (1973), Obergefell v. Hodges (2015) - allows same sex couples to marry
86
protection of rights in the constitution
- the bill of rights and the 14th amendment give legal protection to citizens, based in the liberal concept of individual freedom
- while the constitution was designed to protect natural rights, the founding fathers did not think all people were equal
- the lack of rights protection is still a problem, e.g. Shelby Country v. Holder (2013), where the supreme court ruling struck down section 4 of the voting rights act (1965), which included the preclearance formula, created to ensure that states with a history of discriminatory voting laws did not pass new restrictions that affected racial minority voting negatively
86
changes to the constitution to improve protection of rights
- constitutional amendment: e.g. the 15th amendment extending voters' rights to all races (1870)
- decision of the supreme court: e.g. Brown v. board of education declared segregated schools to be unconstitutional (1954); Carpenter v. united states where the court judges that acquiring cell phone location data amounts to a 4th amendment search and would require a warrant (landmark for protection of privacy) (2015)
- presidential leadership: e.g. president Eisenhower sent federal troops to little rock, Arkansas to enforce racial desegregation
- legislation: e.g. voting rights act ended literacy tests as a requirement for voter registration (1965)
87
separation of powers strengths and weaknesses
- limits the power of the federal government over the states
- the checks and balances between the three branches and the short election cycle of the house of representatives ensure that the government has to work in the interests of the people it represents _ the overlap of powers between the executive and the legislature and between the two chambers of congress means that there needs to be bipartisan cooperation between the parties, especially during divided government
- some aspects of the constitution do not work as the framers envisaged: e.g. the growth of federal power at the expense of the states and of presidential power in foreign policy at the expense of congress
- the framers also did not foresee the party polarisation in the past few decades
- this leads to the constitution not working as well as it could have having gridlock involving government shutdowns when the legislature and congress can not decide on a budget
- in times of united government, oversight is typically weaker as congress in reluctant to criticise the president
88
arguments that the states retain autonomy and sovereignty
- laws vary across states
- healthcare: e.g. states have power over the provision of medical insurance after the passage of Obamacare in 2010
- electoral practices vary widely: article 1 of the constitution allows the states to run their own election and there is a wide variety of election practices
- illegal immigration: some cities are known as sanctuary cities and in 2017, Trump issued an executive order which proposed that sanctuary cities would be at risk of losing various federal grants, however, the US department of justice sued the state of California over its sanctuary city laws in 2018 and the rulings went against the department of justice, which reinforced the autonomy of the state
- the states have autonomy in the handling of national crises
- supreme court rulings support the states over federal government
89
laws vary across states
- criminal punishment: the death penalty is legal in 29 states and has been abolished in 21 states; there are five different methods of execution that are used with not all states using them all
- the legal status of marijuana: 11 states have legalised the recreational use of cannabis and it is legal for medicinal use in 33 states; marijuana is illegal at a federal level and in cases where states and federal laws contradict, the federal government can enact the supremacy clause of article 4 if the constitution
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arguments that the federal government is challenging state autonomy
- taxation and federal financing: e.g. the dependence in federal government money from federal income tax - during the pandemic, the states were dependent on the economic relief package signed in March 2020
- healthcare
- federal government encroachment on numerous state issues: e.g. in education with the no child left behind act
- federal government encroachment on state autonomy during national crises
