1.1 - The Nature of the US Constitution

Question 1

When was the US Constitution ratified and after which compromise?

Answer 1

1789 (after the Connecticut Compromise)

Question 2

Codification definition

Answer 2

The process of writing down a constitution in one document EG US Constitution

Question 3

Supremacy clause definition

Answer 3

The portion of Article VI in the US Constitution that states that the constitution, treaties, and federal laws ‘shall be the supreme law of the Land’

Question 4

Enumerated powers definition

Answer 4

Powers delegated to the federal gov under the constitution - these are mostly enumerated in the first three articles of the Constitution

Question 5

Constitutional framework - Division of powers - Article 1

Answer 5

Article 1 one the Constitution established Congress as the national legislature, defining its membership, qualifications and method of electing its members, as well as its powers - Article 1 Section 8 gives Congress specific powers such as ‘to declare war’

Question 6

Constitutional framework - Division of powers - Article 2

Answer 6

Article 2 of the US Constitution decided upon a singular executive by vesting all executive power in the hands of a ‘President’ - this President would be chosen indirectly by the electoral college

Question 7

Constitutional framework - Division of powers - Article 3

Answer 7

Article 3 of the US Constitution established the Supreme Court - although the role was not explicitly granted, this SC was to be the umpire of the Constitution - provision in Article 3 that the Court’s judicial power applies to ‘all cases […] arising under this Constitution’ - the Court would cement this in Marbury v Madison in 1803

Question 8

Vagueness of the Constitution - At a glance

Answer 8

1) Vagueness allowed delegates to compromise at the Philadelphia Convention
2) Vagueness is an advantage as it has allowed the Constitution to evolve without formal amendment
3) Lack of clarity has also led to significant conflict and disputes over what should be classed as constitutional

Question 9

Vagueness of the Constitution - Implied powers and the necessary and proper clause

Answer 9

Implied powers are powers of the federal gov that the Constitution does not explicitly mention, but which are reasonably implied by the enumerated powers - much of this is derived from the ‘necessary and proper’ clause of Article 1 Section 8 which empowers Congress to make all laws ‘necessary and proper’ to carry out the federal gov’s duties (also called the elastic clause)

Question 10

Example of an implied power?

Answer 10

Judicial review is an implied power - where the SC can declare Acts of Congress, actions of the executive, and acts or actions of state governments unconstitutional - this power in not enumerated in the Constitution, but was ‘found’ in the 1803 Marbury v Maddison case

Question 11

What are reserved powers?

Answer 11

Reserved powers are powers that are reserved the the states alone or to the people - this provision is held in the 10th amendment - this reiterates that the federal gov is one of limited and enumerated powers, and that if powers are not delegated specifically to the federal gov, they fall to the individual states or the people

Question 12

What are concurrent powers (different levels of gov)

Answer 12

Powers shared by the federal and state govs - EG collecting taxes, building roads, and maintaining courts - under the Supremacy Clause any legitimate national law automatically supersedes and conflicting state law

Question 13

Entrenchment of the US Constitution

Answer 13

Entrenchment is the application of extra legal safeguards to a constitutional provision to make it more difficult to amend or abolish it - this means that the US Constitution is difficult to amend because the document is protected by law - specifically Article 5 - which outlines the amendment process - entrenchment ensured it was possible to amend the constitution in response to emerging developments, but that the process was sufficiently robust to prevent the Constitution being amended frequently and on a whim

Question 14

The amendment process of the US Constitution

Answer 14

The amendment process in the US requires a supermajority in both houses - stage 1 is the proposal and stage 2 is the ratification of an amendment - of the 33 amendments sent to the states for ratification by Congress, only 27 have been ratified - the need for a two-thirds majority in both houses and ratification from three quarters of states in such a high hurdle that no amendment has been proposed and ratified since 1992

Question 15

Advantages of the amendment process - Protects the Constitution

Answer 15

• Key features of the Constitution (separation of powers, checks and balances, bipartisanship, federalism) were ideals that the FFs intended to be almost completely immune from amendment
• Republican ideals of forbidding arbitrary rule are key to the political system the Constitution created
• EG Trump calling system of checks and balances ‘archaic’ when they frustrated his attempts at government – this is a deliberate function of the Constitution and this proves that they are working and should not be amended

Question 16

Advantages of the amendment process - Protects states and upholds federalism

Answer 16

• Tenth amendment makes clear the rights of states to have reserved powers as opposed to the federal government
• Provision for a constitutional convention called by the states ensures against a veto being operated on the initiation of amendments

Question 17

Advantages of the amendment process - Requires broad support

Answer 17

• Supermajorities require genuine consent before the Constitution is amended – this makes sense as the US is so big and diverse
• EG repealing the Second Amendment for Liberals might seem a good example of repealing an archaic amendment, however in a YouGov poll in 2018 only around a fifth of Americans supported this
• Amendments can only be successful if there is bipartisan agreement at both nation and state level – most contentious topics lack the broad support required for an amendment

Question 18

Disadvantages of the amendment process - Difficult to amend outdated provisions or incorporate new ideas

Answer 18

• Low amendment success rate means that well thought out amendments may also fail to pass
• EG Changing the electoral college – The electoral college has elected two presidents who lost the popular vote (Bush in 2000 and Trump in 2016) in the last 20 years – it was originally designed as a safeguard against popular democracy, a concern of the 18th century that is at odds with society today
• EG equal rights amendment – Despite a broad consensus on women’s rights, an equal rights amendment to the Constitution has yet to be passed – although it successfully got passed by Congress in 1972 it failed to be supported by the required number of states by 1982
• EG balanced budget amendment – From 1999 to 2018 there were 134 attempts to pass a balanced budget amendment – although a majority of the House voted for it, the vote fell short of the necessary two-thirds majority

Question 19

Disadvantages of the amendment process - Goes against concept of majoritarian democracy

Answer 19

• Supermajorities are not majoritarian and therefore undemocratic
• Proposed amendments such as the flag protection amendment have received over 50% of the vote in Congress but fell short of the required two thirds majority
• To block an amendment only 13 of the 50 states have to oppose it
• Equal rights amendment was only ratified by 37 of the 38 states required to be passed
• This has been cited as an example of tyranny of the minority, as 13 states which represented just 24% of the population at the time were able to prevent an amendment that the majority wanted

Question 20

Disadvantages of the amendment process - Enhances the power of the (unelected) SC

Answer 20

• The entrenched nature of the Constitution allows the nine unelected judges scope in interpreting what is and what is not constitutional
• These SC judgements have significantly altered the Constitution
• EG Roe v Wade saw the court rule 7-2 in favour of a woman’s right to abortion (since been overruled)
• EG checking executive power – Hamdan v Rumsfeld (2006) and Boumediene v Bush (2008) the court ruled 5-4 that Bush’s administration did not have the legal authority to try suspected terrorists held at Guantanamo Bay in military tribunals
• SC’s decisions can be overturned by Constitutional amendments - this has only happened once (16th amendment 1913 allowing Congress to levy income tax)