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1. US Constitution and Federalism > 1.1 The nature of the US Constitution > Flashcards

1.1 The nature of the US Constitution Flashcards

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1
Q

What were the 7 article that the original Constitution contains?

A
  • First 4 deal with 4 key institutions of government - Congress, the presidency, the Supreme Court and the states
  • Article V outlines the amendment process
  • The ‘Supremacy Clause’ in article VI established the US Constitution as the highest law in the land
  • Article VII outlines the ratification process - 9 of the 13 colonies were required to agree the new framework for governing
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2
Q

How many amendments has the US Constitution have?

A

27

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3
Q

What is the Bill of Rights in the constitution?

A
  • Made up of the first ten amendments of the US Constitution
  • All passed in 1791
  • A bill of rights is usually seen as a method of protecting the rights of the individual against government power
  • US Bill of Rights also focuses on protecting the power of states against federal government
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4
Q

What was the 16th amendment?

A

Ratified 1913 - gives Congress the right to levy federal income tax

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5
Q

What were the 18th and 21st Amendments?

A

Ratified in 1919 and 1933 - first of these prohibits the manufacture or sale of alcohol which is then repealed by the later amendment

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6
Q

What was the 19th Amendment?

A

Ratified 1920 - gives women the vote

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7
Q

What was the 22nd Amendment?

A

Ratified 1951 - limits the president to two terms in office

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8
Q

What was the 25th Amendment?

A

Ratified 1967 - Allows the Vice President to assume the office of president temporarily while a president is unable to fulfil their duties

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9
Q

What do some of the key rights of the Bill of Rights include?

A

1st - freedom of expression and religion
2nd - right to bear arms
4th - no unreasonable searches or seizures of people or property
5th - protection against double jeopardy and self-incrimination (ensures due process of law and just compensation)
8th - right to provide freedom from cruel and unusual punishment
10th - right of the states to have reserved powers, as opposed to the federal government

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10
Q

The US constitution is codified - a constitution that has been through the process of codification is…

A
  • Authoritative
  • Entrenched
    Judicable - other laws can be judged against it
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11
Q

Why did the Founding Fathers deliberately entrench the constitution?

A
  • To prevent it from being changed too easily by a single institution or political party in their own self-interest
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12
Q

Given that the Constitution is the main guide for US politics, it is surprisingly…

A

short.

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13
Q

What are enumerated powers?

A

Power explicitly stated - such as article I, section 8, which provides a list of congressional powers.

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14
Q

Why is the Constitution vague?

A

Partly because it is a compromise between Founding Fathers who sometimes disagreed, and partly because there was a deliberate decision to allow room for the Constitution to evolve.

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15
Q

What does the lack of clarity often mean?

A

Significant disagreement over its meaning.

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16
Q

What enumerated powers to Congress hold?

A
  • Collection of taxes and duties
  • Borrowing money on behalf of the US
  • Regulation of commerce
  • Establishing currency and coin money
  • Establishing post offices
  • Provision for and maintenance of an army and navy
  • Declaration of war
  • Amendment of the constitution
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17
Q

What implied powers do Congress hold?

A
  • The necessary and proper clause

- Interstate commerce clause

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18
Q

What enumerated powers does the president held?

A
  • Heads the executive branch
  • Nominates Cabinet members, ambassadors and the judiciary
  • Proposes measures to Congress
  • Vetoes legislation
  • Grants pardons
19
Q

What implied powers does the president hold?

A
  • Commander in chief of the armed forces
20
Q

What enumerated powers do Courts hold?

A
  • Rule on cases arising under the Constitution, the Laws of the US, or Treaties
21
Q

What implied powers do the Courts hold?

A
  • The power of judicial review
22
Q

What does Article I, section 8, of the Constitution state that Congress has the power to do?

A

‘to make all laws which shall be necessary and proper for carrying into execution the foregoing powers’ - this clause is known as the ‘elastic’ clause - it allows Congress to stretch its powers.

23
Q

What was the impact of the ‘necessary and proper’ or elastic clause?

A
  • It has been a source of great controversy - used to justify major expansion of the power of the federal government
    1819 - McCulloch v Maryland - Supreme Court tested the clause and ruled that Congress has the power to create a national bank, even though the right to create one isn’t explicitly stated in the Constitution
  • It gave a broad interpretation using implied powers to allow Congress to act
24
Q

Why could the vagueness of the Constitution be seen as a considerable advantage?

A
  • Has arguably allowed the Constitution to survive for such a long time - its meaning can be adapted without the need for formal amendments
  • A more detailed one would perhaps have been harder to apply to the needs of modern society
25
Q

What are some of the main concerns associated with the vagueness of the Constitution?

A
  • It could fail to regulate political parties
  • The Supreme Court could become too powerful
  • There could be significant conflict
26
Q

Why could vagueness of the Constitution lead to the failure to regulate political parties?

A
  • It is meant to regulate politicians and set the rules of the political game
  • The vagueness could undermine its authority - due to newly established rulings or political practices
27
Q

Why could the vagueness of the Constitution mean that the Supreme Court becomes too powerful?

A
  • Allows individual judges to apply their own ideologies when ruling on a case
  • Each of the 9 justices is associated with a particular ideology, consistently ruling with a clear bias
  • E.g., conflict on the death penalty relating to the 8th amendment’s ‘cruel and unusual’ phrase
28
Q

Why could the vagueness of the Constitution lead to significant conflict?

A
  • Lack of clarity leads to strong disputes, with each side claiming that their particular view of the Constitution is more legitimate
  • This is often based on ideology
  • E.g., increasing divide between the Democratic and Republican Parties over issues such as gay rights, race and policies such as the Affordable Care Act
29
Q

Explain the amendment process.

A

Stage one: proposed -
- By a two-thirds vote of each house of Congress
- By a national convention called by Congress at the request of two-thirds of the state legislatures
Stage two: ratified -
- By three-quarters of the state legislatures
- By three-quarters of the state conventions

30
Q

What were some proposals for amendments passed by Congress that failed to receive sufficient state support?

A

The Equal Rights amendment:
- Provide equality of rights by the federal or state governments on account of sex - failed in 1982
The District of Columbia Voting Rights amendment:
- Would have given DC full representation in the US Congress as if it were a state - would also be able to participate in the amendment process - failed in 1985

31
Q

What were some proposals for amendments voted on in Congress that didn’t receive 2/3 majority in each chamber?

A

The Flag Protection amendment:
- Congress could make it illegal to desecrate the US flag - successfully passed in the House 6 times - never passed by Senate
The Federal Marriage amendment:
- Seeks to define marriage as exclusively between a man and a woman - failed to receive required votes

32
Q

What were some proposals introduced in Congress but not voted on by both chambers of Congress?

A

Right to vote amendment:
- Introduced to prevent restrictions on voting
- Would end felony voting restrictions and help protect voting rights after Shelby County v Holder Supreme Court ruling in 2013 overturned sections of the Voting Rights Act 1965
Saving American Democracy amendment:
- Proposed by Senator Bernie Sanders in 2011 - aimed to overturn Citizens United v FEC ruling of 2010 in which the court removed regulations on funding of elections

33
Q

Why is the US requirement that both federal government and the states need to agree of particular importance?

A
  • It is a key principle on the protection of federalism - federal government cannot restrict the power of states without state-level agreement
34
Q

How many operating amendments have been passed in over 200 years? Why so few?

A

15 - there have been few ideas or demands for change - members of Congress have introduced over 11,000 amendment proposals since the Constitution was first established - Congress has accepted only 33 of those proposals, with 27 making it past states for constitutional inclusion.

35
Q

What are the disadvantages of the formal amendment process?

A
  • It is difficult to remove outdated aspects
  • It is difficulty to incorporate new ideas
  • The amendment process is undemocratic
  • It gives the Supreme Court excessive power
36
Q

Why is it difficult to remove outdated aspects of the Constitution?

A
  • The original document is over 200 years old and US society has changed dramatically, as have key principles like democracy, e.g., rules surrounding the election of the President through the electoral college
37
Q

Why is it difficult to incorporate new ideas into the US constitution?

A
  • Views have changed dramatically since 1787, as have the needs of society, but it is difficult to incorporate additions that may improve the workings of the Constitution due to its entrenched nature - huge consensuses over the idea of gender equality in a modern society - despite this, the ERA failed as recently as 1982
38
Q

Why is the amendment process arguably undemocratic?

A
  • It goes against the concept of majoritarian democracy - to black an amendment, only 13 of 50 states have to oppose it
  • It would be possible (even if unlikely) for the 13 smallest states to block an amendment proposal - also true in Congress where some amendments have received over 50% of the votes but haven’t reached the super-majority threshold
39
Q

How does the Constitution give the Supreme Court excessive power?

A
  • Entrenchment allows 9 unelected judges to have the final say on key issues on institutional power and human rights
  • Rulings by Supreme Court justices are extraordinarily difficult to overturn
  • They use their own personal biases
40
Q

What are the advantages to the formal amendment process?

A
  • It protects key principles of political processes
  • It protects states and upholds federalism
  • It prevents abuse of power
  • It prevents ill-thought-through amendments
41
Q

How does the amendment process protect key principles of political processes?

A
  • Basic democratic ideas - such as elections every four years and separation of powers - could be seen as essential principles
  • But it does still allow for change - these principles can be altered when there is very broad support, through the formal amendment process or by the Supreme Court setting precedents to the Constitution, without the need to pass amendments
42
Q

How does the amendment process protect states and uphold federalism?

A
  • US has tradition respect for such - which entrenchments helps to maintain
  • Ensured through the 10th amendment and the amendment process, as well as small states receiving equal representation in Senate and the electoral college
  • Proposals to undermine state power have failed through the amendment process - attempts to remove electoral college
  • SCOTUS has successfully upheld states rights - partly due to entrenched nature of the Constitution
43
Q

How does the amendment process prevent abuse of power?

A
  • Entrenched - stops individual from one political party changing constitutional rules for their own benefit
  • Key aim of Founding Fathers
  • Current US process - requires bipartisan support - single party highly unlikely to have a two-thirds majority in each chamber of Congress
  • 2006 - Bush Jr requested a line-item veto power - measure that would have allowed him to veto just parts of a bill (not approved by Congress)
44
Q

How does the amendment process prevent ill-thought-through amendments?

A
  • Involves several institutions and requires cross-party agreement
  • Prevents short-term/irrational thinking entering the Constitution
  • Several amendment proposals - can be seen as knee-jerk reactions to current event or SCOTUS ruling
  • Many commentators felt this about proposed inclusion of gay rights into Constitution - or their proposed exclusion

1. US Constitution and Federalism (4 decks)

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