1.1 Nature of the US Constitution Flashcards
7
List the articles of the US Constitution
Article I - Legilsative branch
Article 2 - Executive branch
Article 3 - Judicial branch
Article 4 - States
Article 5 - Amendment process
Article 6 - Supreme Law
Article 7 - ratification
4
Describe the codifcation of the US Constitution
- Codified - written in single 7000-word document (Bill of Rights)
- Constitution is source of all political power
- Amendments have been made, but original document remains sovereign
- As codified, US constitution is judiciable
3
What does it mean if the Constitution is judiciable?
- Higher form of law
- Judges can intepret actions and laws according to Constitution
- Can strike down laws - deem laws ‘constitutional’ or ‘unconstitutional’
4
Describe the entrenchment of the US Constitution
- Document is protects istelf by Article V
- Article V outlines amendment process
- Ensures constitution can be changed in response to emerging need
- Not so flexible as UK that it can change frequently
3
Describe the vagueness of the US Constitution
- Short length of document leads vagueness to allow for compromise
- Constitution is codified, but not every power is outlined
- Leads to division between enumerated and implied powers
2
Describe emurated powers
- Powers explicitly written down in the US Constitution
- Identified as powers explicitly given to the 3 branches in the first 3 articles
2
Give examples of enmurated powers
- Congress given power to ‘lay and collect Taxes, Duties, Imports, Excises’ (Article 1)
- Presidential veto, pardon, President is commander of armed forces, making treaties, appt judges and ambassadors
2
Describe implied powers
- Powers not explicitly laid out in Constitution
- Gained from interpretations of vague language of US Constition
4
Give examples of implied powers
- Power to form cabinet
- Sign executive orders
- Sign executive agreements
- Sign executive privilege
2
Describe the ‘necessary and proper clause’
- Congress given power to make any law that allows it to carry out its emurated powers
- Has been used to extend its power over time
2
Describe Article 1 vs Article 2
- Article I (Congress) more detailed and specific than Article II (President)
- Congress given emurated powers to ensure it cannot be usurpsed by Executive (e.g. overturn of Presidential veto)
2
Describe limits to the ‘necessary and proper clause’
- Detail and specificity of 2nd Amendment (right to bear arms) limits ability of ‘necessary and proper powers’ to enact gun law change
- Comparative vagueness of Article 2 has led to expansion of powers of Presidential branch
2
Describe the branches of the US Constitution
- 3 branches: legislative, executivem judicial
- Replicated at federal and state level
2
Describe the features of the legislative branch of the US Constitution
- Congress
- Split into the House of Representatives (lower chamber) and Senate (upper chamber)
9 - don’t need all
Describe the powers of the legislative branch
- Set and collect taxes
- Borrow money
- Regulate foreign commerce
- Establish rules on citizenship
- Coin money
- Set standards of weights and measures
- Declare war - though often ignored
- Raise an army
- To make laws ‘neccessary and proper’ to carry out these powers
2
Describe the features of the executive branch
- President
- VP (cannot be dismissed) and Cabinet
6
Describe the powers of the executive branch
- Commander in Chief of Army and Navy
- Make treaties
- Grant pardons
- Appoint judges and ambassadors
- Address Congress on State of Union
- Veto legislation
3
Describe the features of the judicial branch
- Supreme Court
- Court of Appeal
- District Courts
3
The judicial branch rules on issues arising from…
- Constitution
- Conflicts between states
- Conflicts between state and federal government
5
Describe important amendments to the Constitution
- 1st amendment - protects rights such as freedom of speech, press, assembly
- 2nd amendment - protects right to keep and bear arms
- 5th amendment - individuals not compelled to provide incriminating evidence about themself
- 8th amendment - death penalty constitutional as long as it is not cruel
- 10th amendment - protects state rights
2
Describe the 2 stages of the amendment process
- Proposal stage
- Ratification stage
2
Describe the amendment process (starting at a federal level)
- Proposed amendment achieves 2/3 supermajority in both houses of Congress
- Amendment ratified by simple majority in 3/4 of state legislatures (used 26 times) OR amendment ratified by state ratifying convention in 3/4 states (used only for 18th amendment)
3
Describe the amendment process (starting at a state level)
- 2/3 states call for national constitutional convention
- Amendment ratified by simple majority in 3/4 of state legislatures (used 26 times) OR amendment ratified by state ratifying convention in 3/4 states (used only for 18th amendment)
- This process has never led to a ratified amendment
4
List the advantages of the amendment process
- Prevents short-lived trends becoming amendments
- Supermajorities prevent tyranny of large states
- Ensures broad support
- Protects state rights
4
List the disadvantages of the amendment process
- Difficulty in ensuring constitution stays up to date
- Minority interests ignored
- Excessive power granted to SC
- Has not been effective (18th vs 21st amendment on prohibition and repeal)
4
Describe how the amendment process ensures broad support
- supermajorities in both stages
- support of 3/4 states across USA
- prevents short-term trends becoming amendments (e.g. prohibition)
- especially important given increased party polarisation
5
Describe how the amendment process protects the principles of the US Constitution
- Leads to separation of powers and republican ideals
- Results in bipartisanship through requirement of supermajorities
- Day-to-day governance conducted by Congress and individal states
- Promotes education on rights of America
- Prevents Constitution being manipulated for political ends
4
Describe how the amendment process prevents the tyranny of the majority by states
- If amendments made on population alone, populous larger states could dominate process
- most populous states make up 37% of population
- Biden won CA by over 5m votes in 2020, leading to popular vote success
- Ensures smaller states remain important part of US Constitution
2
Describe how the amendment process prevents the tyranny of the majority by single parties
- supermajorities prevent single-party dominating (e.g. Republicans proposing balanced budget amendment)
- Prevents constant changes to Constitution through repeal
3
Describe how the amendment process leads to outdated ideas being retained
- Equal Rights Amendment (to equally recognise rights of men and women) was only ratified by Virginia in 2020, 50 years after amendment had been sent for state ratification
- Some aspects have constitutionally evolved (e.g. moving from appt to elected Senate), yet others remain
- Failings of electoral college in 2000 and 2016
3
Describe the difficulty in passing campaign finance reform
- 2020 saw political spending reach $14.4bn
- Challenges liberal idea of ‘one man, one vote’ as money appears crucial to success
- constitutional change necessary - but unlikely to pass
5
Describe how the amendment process grants power to the SC
- SC has powers of final abitrator when interpreting Constitution
- Can effectively make law
- e.g. 2021, ruled to uphold voting registration changes in AZ
- SC can change Constitution considerably, yet lacks accountability as unelected (limited checks)
- SC decisions can be circumvented by amendment, yet difficult to ratify
3
Describe how the amendment process leads to tyranny of the majority
- Supermajority makes it difficult for minority groups to enact Constitutional change
- Much of American states largely homogenous
- e.g. voting rights
4
Describe a poll on the 2nd amendment
- 2018 YouGov poll on 2nd amendment
- calls for repeal as mass shootings increased
- only 1/5 Americans wanted amendment repealed
- thus necessary to have high thresholds for amendments so they reflect will of people
3
Describe the Marriage Act 1996
- Formally recognised marriage as between man and woman
- Obergefell v Hodges (2015) invalidated Act
- Yet chances of amendment to recognise LGBT rights seem slim - restircted to respect for marriage act 2022
3 for and against points
Describe the argument that the amendment process is effective
- Ensures broad support in rigorous process vs outdated aspects remain
- Protects principles of federal constitution vs excessive power granted to the SC
- Prevents tyranny of majority vs minority interests ignored
1
What is the US Bill of Rights?
First 10 amendments to constitution
2
Describe the 27th amendment
- Delayed laws affecting Congressional salary from taking effect until after the next election of representatives.
- Took over 200 years from being proposed to being ratified
2
How may a Congressman/Senator be expelled? (with an example)
- By 2/3 supermajority in their own chamber
- George Santos expelled by 311-114 vote
