1.1 The nature of the Constitution Flashcards
What does Article 1 set out
Congress as the national legislature
What is set out in Article 1 Section 8
Congress was given specific powers such as to ‘coin money’ and ‘declare war’
What does Article 2 set out
Decided on a singular executive vesting all executive power in the hands of ‘a president’ chosen indirectly by the electoral college
What does article 3 set out
Established the US SC, court was to have to role of umpire of the constitution, implied in the supremacy clause of Article VI and the provisions in Article III
What are the enumerated (or delegated) powers
The three articles contain the enumerated powers granted to the federal government –> federal gov’t doesn’t possess unlimited power but only what is given in the constitution
What is the nature of the constitution
- Codified constitution
- Blend of specificity and vagueness
- Its provisions are entrenched
Implied powers
Powers of the federal gov’t that the constitution does not mention but are implied from the enumerated powers.
e.g. power to draft ppl into armed forces may be implied from congress’ enumerated power to raise an army and navy
Where are many implied powers deducted from?
the necessary and proper clause of Article 1, section 8
What is the necessary and proper clause
Known as elastic clause - the powers of the federal gov’t can be stretched beyond the specifically delegated or enumerated powers
Reserved powers
powers reserved to the states alone or to the people
- provision found in the 10th amendment - limits the power of the federal gov’t by stating all power not delegated to federal gov’t is reserved to states or ppl
Concurrent powers
Powers shared by state and federal gov’t
e.g. collecting taxes or building roads
Supremacy clause of article VI
Enshrines the the supremacy of national law; laws passed by the federal governemnt under its constitutional powers are the supreme law of the land
Entrenchment
Constitutional is v entrenched through the complex amendment process to protect it from those who wants to change or attack this system
How can a Constitutional Amendment be proposed?
+ it has to be supported by a 2/3 supermajority vote in the House of Representatives and Senate
+ 2/3 of state legislatures call for a national convention to propose amendments
How can a Constitutional Amendment be ratified?
+ by a 3/4 of the state legislature
+ by 3/4 of the state ratifying conventions specially held in each state
When do amendments tend to happen?
after national trauma
What national trauma was the 22nd amendment ratified after?
After WWII
22nd = limited the president to two terms as president
How many constitutional amendments were proposed in Clintons era
17 votes, unusually high number and it happened during a 6 year period when Republicans controlled both houses of congress
What amendment has republicans been pushing under Clinton and Bush jr
flag desecration act (3 times under Clinton and 3 under Bush), HoR almost always voted yes but has declined every time but senate keeps blocking it, 1 vote away in 2006.
How likely is an amendment going to pass once successfully proposed
Only 6 have failed at the ratification state in 210 years
When was the last amendment
26th Amendment (1971) - lowered the voting age to 18
Why has the constitution been amended so rarely
- V difficult
- parts are deliberately unspecific and vague - meaning the document can evolve without the need for formal amendment
- SC power of judicial review - change the meaning of words written 2 centuries ago - interpretative amendments’ rather than formal amendments
What is an example of an ‘interpretative amendment’ rather than a formal amendment?
court can state that phrase in the 8th amendment ‘cruel and unusual punishments’ mean today
Why is there cuation in amending the constitution
Prohibition being installed then 14 years later it being repealed
1st Amendment
Freedom of religion, speech, assembly and petition
Example of 1st Amendment in SC
Texas v Johnson (1989) – SC ruled 5-4 that burning American flag was protected as ‘free speech’ after Johnson was charged with violating Texas law
2nd Amendment
Most controversial – right to bear arms
Can be interpreted to individual right to own guns or collective right to form a militia
Example of 2nd Amendment in SC
US v Miller (1939) – SC upheld national firearms act which required the registration of sawed off shotguns not protected by 2nd amendment as guns weren’t military equipment
DC v Heller (2008) – SC argued diff verdict that a law banning handguns in Washington DC was unconstitutional
4th Amendment
Protect citizens from unreasonable searches and seizures of property through requiring a ‘probable cause’/warrant from judge to do so
Example of 4th Amendment in SC
Katz v US (1967) – Katz was convicted of illegal gambling after FBI recorded convos from public phone booth
SC ruled that evidence violated the 4th Amendment as FBI didn’t get warrant
5th Amendment
Longest Amendment & miranda rights – Protects the rights of those who are accused of committing a crime
- Requires grand jury of civilians to decide whether individual should be indicted/accused for a crime before being tried at court
- Ensures due process/fair treatment
- Cannot be forced to testify against yourself
8th Amendment
Freedom from excessive bail, fines and cruel and unusual punishments – most controversial
Example of 8th Amendment in SC
Coker v Georgia (1977)
- SC ruled that Georgia could not apple death penalty for rape as only a few states passed such laws, making it ‘cruel and unusual punishment’
10th Amendment
Federal gov’t powers are limited to those enurmerated by the constitution
- 10th amendment used to uphold role of the state
- Republicans love up this amendment
What is the ‘Commerce Clause’?
The clause in Article I, section 8 of the constitution empowering congress to regulate commerce with foreign nations and among the states.
Implies congress has the power to
- Eg- set minimum wage
How does the ‘Full Faith and Credit Clause’ influence horizontal federalism?
The full faith and credit clause means that states should recognise the judicial proceedings of other states. Eg if a couple got divorce in one state, other states would have to give ‘full faith and credit’ to these divorce proceedings. Full faith and credit clause can be argued to expand the power of each states, as other states are bound to their decision. Can also limit states as it forces them to respect other states decision. Doesn’t mean that states have to abandon their laws because of other states.
