3.1: The US Constitution and federalism

Question 1

What is the Constitution?

Answer 1

CONSTITUTION

• A collection of principles (fundamental belief or ideal), conventions and rules which set the basis for a political system and determining the location of sovereignty within it. It establishes the relationship between the government and the governed.
• The US constitution provides the structure for the federal government and protects citizens rights and liberties.

Question 2

What is the Federal Government, Federalism and its nature?

Answer 2

FEDERAL GOVERNMENT
- The national system of government of the USA (republic), with three branches (Congress, Presidency and the Judiciary).

FEDERALISM
- A system of government where sovereignty is shared between a central (federal) government and individual states.

NATURE OF FEDERALISM

1. Power of regional governments or states protected by the Constitution.
   a) Federal Gov. is unable to reduce the power of the states without their consent. There is pooled (shared) sovereignty.
2. Regional powers are equal.
   a) . All states are given the same level of autonomy.

Question 3

What are the origins of the Constitution?

Answer 3

ORIGINS

• 1775 to 1783 ( War of Independence).
• 1776 (The 13 colonies signed the Declaration of Independence = legal sovereignty and independence from Britain).
• 1777 (Articles of Confederation creation of a weak federal government and sovereignty of states, yet it remains weak with little coordination between states and challenging to collect taxes).
• 1787 (Philadelphia Convention involves 55 delegates [Founding Fathers] from 12 states draft a replacement for the latter Articles of Confederation).
• 1788 (US Constitution is ratified after New Hampshire is the 9th state to ratify it = binding).
• 1789 (First Presidential Election = George Washington).
• 1791 (Bill of Rights [Admendments 1 - 10] are added to respond to criticisms).

Question 4

What is the nature of the US Constitution?

Answer 4

NATURE OF THE US CONSTITUTION

1. The vagueness of the document.
2. The codification and entrenchment of principles.

Question 5

Why and how is the Constitution vague?

Answer 5

WHY?

• The document is relatively short in length and vague in language, yet this is partly due to compromise on differing views between the Founding Fathers on issues such as the role of the state, slavery and rights.
• Vagueness allows flexibility for the constitution to evolve and be re-interpreted so it doesn’t remain static.

HOW?
- The vague nature of the constitution is seen through the difference between enumerated and implied powers.

Question 6

What is the difference between enumerated and implied powers?

Answer 6

ENUMERATED POWERS

• Powers that are specifically and explicitly stated in the US Constitution.
• They outline specifically the power each branch of government can exercise.
• EXAMPLE. The constitution outlines in Article II that the ‘President shall be commander in chief of the Army and Navy of the United States’ or Article I states that Congress is given the power to ‘lay and collect Taxes, Duties, Imports and Excises’ whereas the Article of Confederation gave the central government no power over tax and instead relied on states for funds.

IMPLIED POWERS

• These are powers which are interpreted from those laid out in the Constitution.
• They are gained from interpretations of the vague language of the Constitution.
• ‘Necessary and proper clause’ / elastic clause.
• EXAMPLE. McCulloch v Maryland (1819).
• EXAMPLE. Following a memorandum from the Justice Department in 1947, the President is accepted as Commander in Chief of the United States Air Force, Marines and Coast Guard despite their absence in the original document.

Question 7

What is McCulloch and Maryland (1819)?

Answer 7

MCCULLOCH AND MARYLAND 1819

• In 1818, the state of Maryland passed an act which would impose a tax on banks not created by Maryland state gov.
• Second Bank of the United States (congress created 2 years prior) would have to pay tax.
• Supreme Court asked whether Congress had the right to set up such a bank within its constitutional powers.
• The decision allowed Congress’ actions (implied powers).
• “The spirit of the constitution, are constitutional” = Chief Justice John Marshall.

Question 8

What is the ‘Necessary and Proper clause’?

Answer 8

NECESSARY AND PROPER CLAUSE

• A clause within Article I of the Constitution which allows Congress to imply any power which is necessary for it to be able to carry out the enumerated powers.
• “To make all laws which shall be necessary and proper for carrying into execution the foregoing powers”.
• Also known as the ‘elastic clause.
• Has been used to justify the expansion of federal powers.

Question 9

How is the Constitution being codified and entrenched significant?

Answer 9

CODIFIED

• The Constitution is authoritative, meaning this single document sets the basis for all political institutions in the USA.
• The Constitution is judiciable, meaning judges can interpret actions and laws against the Constitution to judge whether they are ‘constitutional’ or ‘unconstitutional’.

ENTRENCHED

• A constitution which is protected from change through a legal process by Article V.
• For the US constitution, this is the two-stage amendment process, which requires a supermajority approval from Congress and the states.
• Currently, there have only been 27 amendments, 10 of which were passed in 1791 (Bill of Rights).

Question 10

What are the different articles of the Constitution?

Answer 10

ARTICLES OF THE CONSTITUTION

1. Article I: The Legislative Branch (structure, powers and elections of Congress).
2. Article II: The Executive Branch (structure, powers and elections of the President).
3. Article III: The Judicial Branch (structure and powers of the Supreme Court).
4. Article IV: The States (the relationship between states and admittance of new states).
5. Article V: Amendments (amendment process to the US Constitution).
6. Article VI: The United States (the supremacy of the Constitution/The Supremacy Clause establishes the constitution as the highest law in the land).
7. Article VII: Ratification (conditions for the ratification of the US Constitution).

Question 11

What are the different branches in the Constitution?

Answer 11

BRANCHES IN THE CONSTITUTION
Through the separation of powers, there are three branches of government. They all exercise the ability to carry out the Constitutional ‘checks and balances’ on other branches:

1. Legislative.
   a) Congress:
   i) Senate
   ii) House of Representatives.
2. Executive.
   a) President.
   b) Vice President.
   c) Cabinet.
3. Judicial.
   a) Supreme Court.
   b) Other federal courts.

Question 12

What are the checks and balances carried out by Legislature?

Answer 12

CHECKS ON PRESIDENT:

1. Legislation
   - The primary role of Congress is to produce legislation, with most policies coming from the President at their State of the Union Address (outlines their agenda for the year).
   - Yet Congress can create, amend, delay and reject legislation.
   - EXAMPLE. At every State of the Union Address between 2010 - 2015, Obama asked Congress to pass immigration reform, yet none had passed by the time he had left office.
2. Veto Override
   - Once Congress has passed a law, the president signs it to become a law or rejects it by a presidential veto.
   - Congress has the power to override this with a 2/3rds vote in both houses.
   - Requirements for a supermajority (more than half) makes it difficult to override as both parties will have to support it.
   - EXAMPLE. George W. Bush used 12 vetos, with 4 overridden and attempts to override 6 more.
   - EXAMPLE. Obama’s final veto of the Justice Against Sponsors of Terrorism Act (JASTA) 2016 suffered an overwhelming bipartisan defeat with only the Senate Majority Leader, Harry Reid, voting ‘no’ to override the veto.
3. Power of the purse
   - Congress has the right to raise taxes and expend money raised by the national gov.
   - Prevents the president from spending ignorant of elected representatives.
   - The ‘Appropriations Clause’ in Article 1 states that without congressional law, money cannot be allocated for federal policies.
   - EXAMPLE. In January 2018, the US Gov. shut down because it lacked sufficient funds to operate due to a dispute with Republicans over Obama’s Deferred Action for Childhood Arrivals (DACA) immigration policy.
4. Declare war
   - Although the president is Commander in Chief, Congress is the only branch which can formally declare war.
   - Congress has used this power 11 times (last formal use against Bulgaria, Hungary and Romania in 1942).
   - Congress can authorise the President to use the military through AUMFs (Authorisation for Use of Military Force) without formally declaring war.
   - EXAMPLE. AUMF that followed 9/11 in 2001 authorised military force against those responsible (AUMF has been used by Bush, Obama and Trump to justify conflict in 14 countries since 2001).
5. Impeachment
   - Congress can bring impeachment proceedings against a President or executive members for ‘Conviction of, Treason, Bribery or other high Crimes and Misdemeanors’.
   - House of Representatives has the power to bring forward charges. If this passes with a simple majority vote, a formal trial is held by the Senate with a 2/3rds supermajority required to be found ‘guilty’.
   - EXAMPLE. Only 3 Presidents have been formally impeached but not removed from office/guilty in Senate: Andrew Johnson (1868), Bill Clinton (1998 - ‘not guilty’ of perjury [55-45] and obstruction of justice [50-50]) and Donald Trump (2019); Richard Nixon resigned before his 1974 trial.
   - EXAMPLE. Kucinich Wexler Articles of impeachment brought forward by the House of Representatives against George W. Bush in 2008 passed a vote in House but languished in the Judiciary Committee until he left office.
6. Ratify Treaties (Senate Only)
   - Approves treaties negotiated by the President with 2/3rds supermajority or it is not ratified.
   - EXAMPLE. The Strategic Arms Reduction Treaty (START) in 2010 passed by 71-26 senators.
   - EXAMPLE. Senators can choose not to vote, the Arms Trade Treaty was sent to the Senate in December 2016 yet never ratified due to Trump’s inauguration in January 2017.
7. Ratify Appointments (Senate Only)
   - Presidential appointments to the federal courts, federal government departments and ambassadors are subject to Senate ‘advice and consent’ (1,200 posts by simple majority).
   - EXAMPLE. Senate formally rejected John Tower as Secretary of Defence in 1989 due to allegations of alcoholism and womanising.
   - EXAMPLE. It can shape appointments - Andrew Puzder was nominated as the Secretary of Labor in 2017, yet withdrew following Senate majority leader McConnell informing Trump that he did not have the votes.
   - EXAMPLE. Education Secretary, Betsy De Vos only managed approval through tie-breaking vote of Vice President Mike Pence as the Senate was 50-50 split.
   - EXAMPLE. Joe Manchin (West Virginia, Democrat approved Trump’s appointments in 2017 (DINO - Democrat in Name Only) and commonly votes with Republicans (partisanship).

CHECKS ON THE SUPREME COURT:

1. Impeach justices
   - Same process for supreme court justices as president.
   - EXAMPLE. Happened once in 1805 for Supreme Court Justice Samuel Chase being found ‘not guilty’ of being partisan with rulings.
   - EXAMPLE. 2 cases in Federal Courts in the 21st century. Samuel Kent resigned before the verdict in 2009, Thomas Porteous was found ‘guilty’ of bribery and making false statements in 2010.
2. Propose a constitutional amendment
   - In all rulings, the court judges whether an issue is constitutional, yet if the constitution is changed this shifts the nature of court rulings; perhaps overturning the circumstances of judgements.
   - EXAMPLE. In 1913, the 16th Amendment was adopted allowing federal income tax to be levied, after the Supreme Court had ruled to deny this in the ‘Pollock v Farmers Loan & Trust Co. (1895)’ case.
3. Creation of lower courts
   - Has not only the power to create lower courts but the power to regulate the Supreme Court’s role in hearing appeals from them (jurisdiction stripping - the constitutional ability for Congress to regulate what cases the Supreme Court is allowed to hear).
   - EXAMPLE. 2006 Military Commissions Act, tried to remove from the Court the power to hear cases from Guantánamo detainees.
4. Ratify judicial appointments (Senate Only)
   - President appointments to the Supreme Court will commonly be a nominee which reflected their ideology (conservative or liberal) and change the ideological weighting of the court.
   - Same process as other presidential nominees.
   - EXAMPLE. When Antonin Scalia died in 2016, the senate did not ratify his proposed replacement, Merrick Garland, was their ideological difference (Scalia was a staunch Conservative whereas Garland is a Centralist); balance is crucial to the rulings given.

Question 13

What are appropriations bills?

Answer 13

APPROPRIATION BILLS

• Proposed law from Congress (power of the purse) which authorises government spending, and therefore taxpayers’ money.
• Article 1 states that they should originate in the House of Representatives (originally the only elected house of Congress).

Question 14

What are the checks and balances carried out by the Executive?

Answer 14

CHECKS ON CONGRESS:

1. Suggest Legislation
   - President is directly elected (notwithstanding the electoral college) with a campaign of policies.
   - Despite the lack of legislative powers, he can suggest the agenda at the State of the Union Adress.
   - EXAMPLE. Trump asked Congress for money for the Southern border wall in 2018 with election pledge to “build the wall”.
2. Sign/veto legislation
   - Can choose to approve (law) or disapprove (send back to be amended, voted on again or to fail) legislation from Congress.
   - The threat of a veto alone can prevent Congress from passing a bill to the president as it could mean the bill is rejected entirely.
   - EXAMPLE. Both Bush and Obama used the Veto 12 times in office.
3. Commander in Chief of the Armed Forces
   - In the capacity of the Commander in Chief, the President decides the stationing and movements of troops and the use of military weapons.
   - EXAMPLE. In 2013, Obama stated how he believed to have the authority to carry out military action without specific congressional authorisation but still asked Congress in the hopes of a stronger and validated decision.

CHECKS ON THE SUPREME COURT:

1. Power of Pardon
   - President has the constitutional right to ‘grant reprieves and pardons’ by excusing incarcerated individuals for federal crimes with few limits upon it.
   - EXAMPLE. On Obama’s last day in 2017, he granted 330 commutations to nonviolent drug offenders as well as Chelsea Manning earlier in the week, who had served 7 years for stealing state secrets.
2. Nominations of judicial appointments
   - The president nominates a judicial appointment to shape the balance of the Supreme Court which Congress ratify.
   - EXAMPLE. Obama’s nomination was centralist Merrick Garland to replace conservative Justice Antonin Scalia, whereas Trump’s nominee was the more conservative Neil Gorsuch which retained the Court as conservative.

Question 15

What are the checks and balances carried out by the Judiciary?

Answer 15

CHECKS ON BOTH BRANCHES:

1. Judicial Review
   - Found in Article III of the Constitution and fully established in Marbury v Madison (1803)
   - The power to judge whether acts and actions of the executive or legislative branches are constitutional.
   - If they rule against them, their acts or actions become ‘null and void’ so they no longer have legal effect.
   - EXAMPLE. Boumediene v Bush (2008), the Court effectively checked both branches at once, ruling the Military Commissions Act passed by Congress unconstitutional and allowing detainees held at Guantánamo Bay to challenge their detentions in US courts.

Question 16

What are the Constitutional requirements to be a member of each of the branches of government?

Answer 16

PRESIDENT:

• 35 years old.
• Natural-born US citizen.
• A resident of the USA for the last 14 years.

SENATOR:

• 30 years old.
• US citizen for at least 9 years and an inhabitant of the state they want to represent.
• 17th amendment made the Senate an elected, not appointed, house.

REPRESENTATIVE (House of..):

• 25 years old.
• US Citizen for 7 years and an inhabitant of the state they want to represent.

Question 17

How many Government Shutdowns have there been since 1974?

Answer 17

GOVERNMENT SHUTDOWNS SINCE 1974

• Since the Budget Act 1974, there have been 20 separate government shutdowns as a result of the government running out of money.
• The most recent was 22 December 2018 to 25 January 2019 as the longest US Federal shutdown in history (35 days) and stemmed from an impasse over Trump’s demand for $5.7 billion in federal funds for a U.S.–Mexico border wall.

Question 18

What are the key amendments?

Answer 18

KEY AMENDMENTS
- Amendments 1 - 10 (1791): The Bill of Rights protects free speech (1st), the right to bear arms (2nd), right to not self-incriminate (5th), freedom from cruel and unusual punishment (8th), and the rights of states (10th).

• Amendments 13 - 15 (1865 - 70): The Civil War amendments ending slavery, guaranteeing equal protection and due process, expanding voting rights regardless of race.
• 16th Amendment (1913): Allows Congress to levy income tax.
• 17th Amendment (1913): Makes the Senate an elected, not appointed, house.
• 18th Amendment (1919): Prohibited the sale, transport, and manufacturing of alcohol.
• 19th Amendment (1920): Expands voting rights regardless of sex.
• 21st Amendment (1933): Repeals the 18th amendment (passed by state constitutional convention).
• 22nd Amendment (1951): Places a two-term limit on the president.
• 24th Amendment (1964): Dissalows non-payment of tax as a reason to deny anyone the vote.
• 25th Amendment (1967): Allows the vice president to temporarily exercise presidential powers if the president is unable to do so (after JFK was assassinated in 1963).
• 26th Amendment (1971): Lowers the voting age to 18.

Question 19

Why is there an amendment process?

Answer 19

AMENDMENT PROCESS

• In order for the Constitution to remain relevant, Article V outlined the process for the document to be amended.
• There is a two-stage process requiring a supermajority at each vote to ensure that the Constitution is neither too flexible (to prevent abuse of political power) nor too rigid.

Question 20

How does the amendment process work?

Answer 20

AMENDMENT PROCESS
- To amend the Constitution, an amendment must pass through a proposal stage (1. National Level) and a ratification stage (2. State Level); with two options of how the amendment can be passed (yet it commonly just passes 1a and 2a, none have gone through 1b yet one has passed 2b):

1. National Level
   a). A proposed amendment passes the House of Representatives and the Senate with a supermajority 2/3rd vote in both.
   OR
   b). A national constitutional convention is called on an amendment by 2/3rd of state legislatures.
2. State Level
   a). An amendment is ratified by a simple majority in 3/4s of state legislatures.
   OR
   b). An amendment is ratified by a state ratifying convention in 3/4s of states.

Question 21

How many amendments have been proposed yet how many have been successful?

Answer 21

SUCCESSFUL AMENDMENTS

• Over 11,000 proposed constitutional amendments with only 27 have passed both stages (6 failing the second stage).
• EXAMPLE. Between 1999 and 2018, a balanced budget amendment (ensure the US Government spends only what it earns in taxes) was proposed over 134 times, with 38 between 2011 and 2014 when Republicans controlled the House (more than double the previous 2 Congresses under Democratic control), making it a party political issue.

Question 22

What are the advantages of the formal amendment process?

Answer 22

ADVANTAGES OF THE AMENDMENT PROCESS

1. Broad support
   - The need for supermajorities ensures extensive support and reflection of the political/cultural beliefs of a country which is increasingly diverse.
   - It Constitution may not satisfy everyone, but broad support for its changes avoid it being trivial as times progress.
   - EXAMPLE. 2018 YouGov poll showed only 1 in 5 Americans want the 2nd amendment repealed despite recent mass shootings.
2. Prevents short-lived trends from becoming amendments
   - The arduous nature of the amendment process helps to prevent knee-jerk amendments from developing in unique circumstances.
   - Important in the wake of party polarisation, with large majority parties highjacking agendas and producing long term legislation.
   - EXAMPLE. 2006 Federal Marriage Amendment (defining marriage between a man and a woman) was proposed, yet would be seen outdated today.
3. Protects the Constitution and its principles
   - Principles found in the Constitution establish the basis for American Democracy.
   - Republican ideals (prevention of arbitrary rules, such as a monarch or dictator) are apart of these principles and go further than the entrenchment outlined in Article V.
   - The challenging process means that these protected ideals (the separation of powers) are protected, preventing one branch abusing power.
   - EXAMPLE. 2006 George Bush requested a line-item veto power, yet this enhanced power was not approved by Congress.
   - EXAMPLE. Trump described the system as ‘archaic’ following policy defeats such as his healthcare bill and travel ban in his first 100 days. Yet the principles remain protected.
4. Prevents tyranny of large states and single parties
   - Federalism is one of the cornerstone principles that every state is recognised individually important rather than its population in the Connecticut Compromise and 10th amendment.
   - Ratification stage gives a recognisable worth as part of US democracy.
   - If amendments were made on population alone, large states would dominate and neglect smaller states.
   - By requiring bipartisanship supermajority support, a single party is prevented from dominating the amendment process (balanced budget amendment).
   - EXAMPLE. California accounts for 12% of the population, these states could overpower minor states such as Wyoming (0.17% of US population).
5. Lack of changes demonstrates its effectivity
   - Only 27 amendments since its inception shows the difficulty of the process.
   - Prevented unnecessary amendments.
   - Recognises that the principles are clear and relatively unchanging, with citizens being aware of their rights and the importance of the supreme court (unlike the UK where it is subservient to the government).

Question 23

What are the disadvantages of the formal amendment process?

Answer 23

DISADVANTAGES OF THE AMENDMENT PROCESS

1. Difficulty in ensuring the Constitution remains up to date
   - Changes in modern society are not reflected in the Constitution due to the difficult process.
   - To achieve the level of consensus and compromise is frankly unachievable, especially with current polarisation.
   - EXAMPLE. Saving American Democracy Amendment 2011 from Bernie Sanders was rejected despite necessary campaign finance reforms needed following the election costing over $1 billion in 2008.
2. Outdated aspects of the Constitution still existing
   - Remain culturally and politically outdated amendments which are impractical, perhaps the 2nd amendment should not extend to assault rifles as its origins were at the time of muskets in the late 1700s.
   - EXAMPLE. Former Supreme Court Justice Stevens felt that the 2nd amendment should become applicable only to those serving in a militia and that capital punishment should be eliminated.
   - EXAMPLE. Last 5 elections, the Electoral College has twice produced a President which was not the winner of the popular vote (Bush 2000, Trump 2016). Although founding fathers included EC as a guard against popular democracy, it undermines liberal democracy today.
3. Ignorance of minority interests
   - Supermajorities set a high threshold preventing minority views of a simple majority.
   - Equally difficult for minorities to bring about change to the constitution as ignored by numbers.
   - EXAMPLE. Despite ‘Windsor v US (2014)’ and ‘Obergefell v Hodges (2015)’ the chance of an amendment recognising the rights of same-sex relationships is slim as only 4% of Americans identify as LGBT.
4. The power given to the Supreme Court
   - Supreme court has vast influence in interpreting the Constitution and therefore has been able to alter the document, yet remains unelected and unaccountable.
   - The Court’s decisions can be overturned by a constitutional amendment, yet extensively difficult and happened once (the 16th amendment).
   - EXAMPLE. Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018), the court issued a ruling in favour of a Colorado baker who refused to make a wedding cake for an LGBT couple due to religious beliefs.
   - EXAMPLE. Carpenter v. US (2018), Mobile phone location records fall under the 4th Amendment and need a warrant to be obtained.
5. Tyranny of the minority
   - The necessity to gain supermajorities means it is possible for just a minority to prevent an amendment from passing/overrepresentation.
   - EXAMPLE. The Equal Rights Amendment (outlawed discrimination on the basis of sex), passed the House in 1971 and the Senate in 1972. Yet despite twice extending the deadline for states to ratify (1979, 1982), only 37 ratified (short of 38). The 13 states that did not ratify it accounted for only 24% of the US population at the time.
6. Despite the difficulty of the formal process, there have been mistakes
   - The 18th amendment was passed in 1920, prohibiting the sale, manufacturing and transport of alcohol in response to popular prohibiting movements.
   - 13 years later this was repealed, the short-lived popular trend was not well thought through.

Question 24

What are the key principles of the Constitution and their origins?

Answer 24

PRINCIPLES OF THE CONSTITUTION

1. Limited Government
   - A Gov. which is subject to restrictions on the power it can exercise over a country or its citizens.
   - After the tyranny of the British monarchy and being taxed without representation by Parliament, Founding Fathers were resistant to form a federal gov. with unlimited powers.
   - Sought to limit gov. with the ‘Separation of Powers’ and ‘Checks and Balances’ by preventing one branch from becoming omnipotent.
   - Despite the Bill of Rights was not included in the Constitution in 1787, some states promised to ratify it so long as the provisions of a Bill of Rights to ensure federal gov. dominating states (limited gov.)
2. Separation of powers
   - The complete separation of the three branches of gov: Congress, Presidency and the Supreme Court, including the separation of powers, buildings and personnel.
   - Built upon Montesquieu’s ‘The Spirit of the Laws’ which had 3 branches entirely independent of one another.
   - The ‘ineligibility clause’ of Article I further prevented any one person from holding office in more than one branch at any time, to prevent individuals from gaining too much power.
3. Checks and balances
   - The power of one branch to directly prevent the action of another branch, thus ‘checking’ their action. The fact that all branches can do this provides a balance of power.
   - From Montesquieu, each branch must have the power to oversee the actions of the other branches and perhaps prevent them from abusing power (limited gov.) which forces them to cooperate.
4. Bipartisanship
   - The ability of two or more parties to work together to achieve an outcome (enforced in constitutionally required supermajorities).
   - Many Founding Fathers were sceptical about the role of parties (factions) and sought that the Constitution would require compromise (‘Federalist 51’ essay by James Madison).
   - Different elections and appointments for each branch made it difficult for one faction to control all branches at any one time, ensuring compromise.
5. Federalism
   - A system of gov. in which power and sovereignty are shared between the federal gov. and individual states.
   - Wanted to defend rights of states whilst retaining a strong gov; this allowed a system of shared (pooled) sovereignty.
   - The Constitution, therefore, would serve as a guarantor of states’ rights, effectively limit both federal and state gov. powers by dividing authority between them.
   - Each state is a smaller version of the US, with its own constitution, head of the executive branch (Governor), the legislature (State Congress) and Supreme Court.

Question 25

Evaluate the effectiveness of the key principles of the Constitution?

Answer 25

EFFECTIVENESS OF THE KEY PRINCIPLES OF THE CONSTITUTION

1. Limited Government
   - The inclusion of separation of powers as well as checks and balances.
   - 10th amendment giving states powers.
   - The Bill of Rights guaranteeing citizens’ rights.
   - EXAMPLE. Texas v US (2016), an executive order by President Obama regarding illegal immigrants (Deferred Action for Parents of Americans - DAPA) was struck down by the Supreme Court. Congress failed to pass the immigration reform bill demonstrates the Obama administrations inability to make law without Congress/other branches of Gov.
   - EXAMPLE. However, both Trump (Syria) and Obama (Libya) launched airstrikes without congressional approval.
2. Separation of powers
   - Articles I, II, III outline the individual powers of each branch of gov.
   - The ‘ineligibility clause’ of Article I, meaning a person can only serve in one branch of gov. at a given time.
   - EXAMPLE. President Obama, VP Biden and Hillary Clinton all had to leave their seats in the Senate to take up roles in the executive branch in 2009.
   - EXAMPLE. In 2017 Jeff Sessions gave up his Senate seat to join the executive branch as Attorney General.
   - EXAMPLE. However, Obama’s Joint Comprehensive Plan of Action 2015 (The Iran Nuclear deal) limiting Iran’s nuclear capabilities in return for the lifting of sanctions. Yet he did not label it as a ‘treaty’ so did not require approval from the US Senate.
3. Checks and balances
   - Numerous powers within Articles I, II, III provide checks and balances.
   - Not just provision of checks, but also by the denial of certain powers, such that the president can propose legislation, but cannot amend legislation (line-item veto), which would allow the rejection of certain lines of a bill.
   - EXAMPLE. 2017 Trump attempted to introduce his own healthcare bill, but despite having a Republican majority in both houses of Congress it failed to pass.
   - EXAMPLE. However, President Obama included the USA in the Iran Nuclear Deal 2015 (JCPOA) and Paris Climate Accord 2015 without asking for Senate approval.
4. Bipartisanship
   - Requirements for supermajorities in the amendment process, impeachment process and veto override process.
   - Staggered election cycle can allow branches to be dominated by different parties.
   - EXAMPLE. The ‘Gang of Eight’ in the Senate was a bipartisan group of 4 Democrat and 4 Republican senators who spoke to create the bipartisan bill ‘Border Security, Economic Opportunity and Immigration Modernisation Act 2013’ which passed the Senate.
   - EXAMPLE. However, the Bipartisanship immigration bill passed in the Senate but was blocked by the Republican speaker of the House of Representatives who refused for it to even be debated.
5. Federalism
   - The 10th Amendment protects state rights.
   - The role of the Supreme Court as the arbiter between federal and state government.
   - The need for state approval in the amendment process.
   - Equal representation of the states in the Senate.
   - EXAMPLE. Marijuana remains illegal at the federal level under the ‘Controlled Substances Act 1970’ yet 9 state gov. legalised recreational use and 13 more have decriminalised it.
   - EXAMPLE. However, Supreme Court rulings are binding on states too as in ‘Obergefell v Hodges 2015’, gay marriage was effectively legalised in all states, including 13 where it had been illegal prior to the ruling.

Question 26

What are some examples of failed amendments?

Answer 26

FAILED AMENDMENTS

1. Proposals passed by Congress but failed to achieve ratification through state support
   - EXAMPLE. The Equal Rights Amendment 1972 (deadline 1982). Would have provided equality of rights by the federal or state governments on account of sex.
   - EXAMPLE. District of Columbia Voting Rights Amendment 1978 (deadline 1985) would have given the District of Columbia full representation in Congress as if it were a state, as well as the ability to participate in the amendment process.
2. Proposals voted on in Congress that did not receive a 2/3 majority in each chamber
   - EXAMPLE. The Flag Protection Amendment 2006. Would make it illegal to desecrate the US flag. Yet in 1990 the Supreme Court overturned the Flag Protection Act in US v Eichman on the basis of the 1st amendment (freedom of expression). The constitutional amendment process was passed in the House 6 times up to 2006 but failed to gain enough votes in the Senate.
   - EXAMPLE. The Federal Marriage Amendment (2006) defines marriage as between a man and a woman, yet failed in both the House and Senate. Central to George Bush 2004 presidential elections with John Kerry arguing that individual states should decide.
3. Proposals introduced in Congress, but not voted on by either chamber
   - EXAMPLE. Right to Vote amendment (2013) to prevent restrictions on voting (end felony voting restrictions and protect voting rights after Shelby County v Holder (2013) which overturned sections of the Voting Rights Act 1965 which make it vulnerable to loopholes.
   - EXAMPLE. Saving American Democracy amendment (2011) by Bernie Sanders to overturn Citizens United v FEC ruling of 2010 which removed financial regulations of elections.

Question 27

What’s the difference between Divided and Unified Government?

Answer 27

DIVIDED GOVERNMENT

• A political circumstance in which at least one if either the presidency, the House of Representatives or the Senate is held by the opposition party.
• Increased partisanship and spilt Congress since the 1960’s often leading to gridlock.

UNIFIED GOVERNMENT

• A political circumstance in which both chambers of Congress and the Presidency are controlled by the same party.
• In these instances, both executive and legislature are more likely to work together (which could undermine the principles of limited gov).
• More likely to be unified in times of national crisis, to allow President to exercise greater political control (9/11, Hurricane Katrina 2005, 2007 Recession) - can undermine the checks and balances principle.

Question 28

What is Gridlock?

Answer 28

GRIDLOCK
- A situation in which both the President and Congress have difficulty in exercising their powers, meaning little can be achieved.

Question 29

What are the Federal and State powers laid out in the Constitution?

Answer 29

POWERS

1. Federal Government Powers
   - To declare war (security).
   - To make treaties.
   - To coin money.
   - To establish a military.
   - To regulate interstate (interstate commerce clause) and foreign commerce (foreign policy) in Article 1, section 8.
   - To make all laws ‘necessary and proper’ to achieve their constitutional powers.
2. CONCURRENT Powers (both)
   - To make constitutional amendments.
   - To levy taxes.
   - To establish courts.
3. State Powers
   - To establish local gov.
   - To regulate elections.
   - To maintain a militia.
   - To ASSUME POWERS NOT LISTED IN THE CONSTITUTION (10th Amendment), regulating schools, professional licenses and intrastate commerce.

Question 30

How has federalism developed through time?

Answer 30

FEDERALISM THROUGH TIME

1. Dual Federalism (1790s - 1930s)
   - States and federal gov. were co-equal and had distinct areas of power.
   - States undertook most governing, supported by numerous Supreme Court rulings.
2. Cooperative Federalism (1930s - 1960s)
   - Federal gov. was seen as superior to states with greater cooperation overpowers that were traditionally directed and administered by states alone, with Roosevelt’s ‘New Deal’.
   - (TURNING POINT) This power was assumed and expanded upon the Wall Street Crash 1929 and economic depression that followed into WW2 and the Cold War.
3. New Federalism (1970s - 2000s)
   - Nixon’s calls for ‘New Federalism’, respective Republican presidents and Clinton looked to return power to states.
   - This made federal and state govs. interdependent upon one another.

Question 31

What is an example of federal-state relationships (sanctuary cities)?

Answer 31

FEDERAL-STATE RELATIONS EXAMPLE

• Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans (DAPA)
• Obama’s immigration reform failed in Congress as legislation so he resorted to passing an executive order with DACA and DAPA (granted illegal immigrants, and their parents, a guarantee of exemption from deportation) which was later reversed by the Supreme Court in Texas v US 2016 by 4-4 court and Trump.
• Yet States have defied changes by federal gov. with Sanctuary Cities (limit cooperation with federal immigration enforcement agencies - California passed the State Senate Bill 54).
• Trump threatened to withhold federal funds from sanctuary cities, yet was deemed unconstitutional by federal courts, with the city of Chicago suing Trump over withholding police funding.

Question 32

How did federal-state relationships develop under Bush?

Answer 32

DEVELOPMENT of STATE POWER

• EXAMPLE. Gonzales v Oregon (2006). Allowed state-sponsored euthanasia, in defiance of the US Attorney General Alberto Gonzales.
• EXAMPLE. Medicaid Waiver 2006 in Massachusetts allowed Governor Mitt Romney to introduce a universal health insurance program.

DEVELOPMENT of FEDERAL POWER

• EXAMPLE. USA PATRIOT Act 2001. Expanded the rights of federal gov. to detain people and collect information on them.
• EXAMPLE. Medicare Prescription Drug Modernisation Act 2003. Expansions of medicare, including prescription drug benefits, cost $400 billion.
• EXAMPLE. Homeland Security. Addition of an entirely new cabinet department.
• EXAMPLE. No Child Left Behind 2002. Allowed for uniform school testing.
• EXAMPLE. Gonzales v Raich 2005, Supreme Court interprets the legalisation of marijuana in California as a federal responsibility, as the interstate commerce clause allowed the federal gov. to regulate California as it would impact the supply and demand of the drug across the US, affecting interstate commerce (Marijuana is a criminal offence in other states - up to 6 years in prison in Florida).
• EXAMPLE. Gratz v. Bollinger 2003 deemed the University of Michigan’s affirmative action-based admissions programme to be unconstitutional.

Question 33

How did federal-state relationships develop under Obama?

Answer 33

DEVELOPMENT of STATE POWER

• EXAMPLE. Patient Protection and Affordable Care Act 2010 (PPACA). Known as Obamacare included power over the provision of medical insurances run by the states themselves.
• EXAMPLE. Texas v US 2016. Supreme Court struck down Obama’s DAPA executive order due to the cost to states.
• EXAMPLE. The Cole memo 2013. The justice department said it would not enforce federal restrictions on marijuana where states had legalised it (unless in circumstances where it involved gang violence or guns).
• EXAMPLE. Race to the Top initiative 2009 created $4.3 billion worth of grants that states could compete for, but money was awarded to states which met 20 educational goals set by federal gov.

DEVELOPMENT of FEDERAL POWER

• EXAMPLE. PPACA (Obamacare) 2010. Expanded insurance and gave more individual rights.
• EXAMPLE. Arizona v US 2012. Overturned Arizona’s SB1070 law which increased state law enforcement power to enforce immigration laws.
• EXAMPLE. Obergefell v Hodges 2015. The Supreme Court effectively legalised gay marriage nationally.
• EXAMPLE. Obama attempted to place restrictions in states by threatening to withhold federal education funding discriminatory practice was present following the North Carolina transgender bathrooms issue, with 14 states having restrictive transgender bathroom laws at the end of his administration (Jan 2017).

Question 34

How have federal-state relationships developed under Trump?

Answer 34

DEVELOPMENT of STATE POWER

• EXAMPLE. Carpenter v US 2018. The Supreme Court found that federal gov. must obtain a warrant for a citizens mobile phone location records.
• EXAMPLE. Executive Order minimising the economic burden of the PPACA, aimed at reversing Obamacare and giving states more control.
• EXAMPLE. Trump lifted all attempts at federal regulations on transgender bathrooms, not being opposed to trans rights, but believed it was a states’ rights issue.

DEVELOPMENT of FEDERAL POWER

• EXAMPLE. The Session memo 2018. New attorney General Sessions rescinded the Cole memo, saying law enforcement would enforce national marijuana prohibitions.
• EXAMPLE. Executive Order stripping federal grants from ‘Sanctuary Cities’ (later unconstitutional).

Question 35

To what extent is State sovereignty retained against the Federal Government?

Answer 35

STATE RETENTION OF SOVEREIGNTY

1. Citizens Rights
   - In addition to rights protected in the Constitution, the rights of citizens vary widely between states.
   - EXAMPLE. Alaska allows citizens to get a learner’s permit at age 14, while Massachusetts you have to be 16. Alongside inconsistencies with abortion, euthanasia, gun control and marijuana.
   - 10th amendment states that any powers not reserved for the federal gov. should be considered a state power:
   - EXAMPLE. Printz v US 1997, the Supreme Court overturned the Brady Act Requirement that state officials must perform background checks on those wishing to purchase a gun (10th amendment meant that this was a state, not a federal, policy).
2. Criminal Punishment
   - The death penalty is distinct in different states. 30 states allow the death penalty, with different methods such as death by Gas Chamber being a secondary method in California as of 2020.
   - In Florida, Iowa and Kentucky, a convicted felon does not necessarily regain the right to vote upon release from prison.
3. Electoral regulation (democracy)
   - Article I allows states to run their own elections.
   - Has resulted in variations in electoral practice (leading to the 2000 presidential election controversy).
   - In 2020, you can vote through: paper ballot, paper ballot and electronic voting, mail ballot or electronic voting alone.
   - EXAMPLE. States that use electronic voting can do so without a paper trail, with controversy with the Department for Homeland Security with 21 states having systems targeted by hackers in the 2016 election.
   - State Govs. can set boundaries for districts for voting, leading to court cases of gerrymandering (the manipulation of constituency boundaries to give a party political advantage).
4. Taxes
   - On top of being taxed federally, citizens are taxed by their state on multiple levels, such as sales tax, income tax and property tax.
   - Income tax varies from 0% in 7 states to 13% in California.
5. Law
   - States can try to overturn federal mandates, such as Shelby v Holder 2013 federal law was overturned when parts of the Voting Rights Act 1965 were deemed unconstitutional - giving states greater freedom in electoral law. Yet has meant that states can create laws which undermine the opportunity for poor or racial-minority voters to participate.
   - Interstate Commerce Clause implies that states are free to regulate their own internal business policy as well as the 2nd amendment prevents federal govs. from imposing gun regulations on the states.
   - EXAMPLE. US v Lopez 1995, the Federally opposed Gun-Free School Zones Act 1990 was halted by Texas as the Court ruled that the commerce clause did not allow Congress to ban possessions of a gun near a school because gun possession by itself is not an economic activity that affects interstate commerce.
   - EXAMPLE. Anti-affirmative action initiatives have been enacted in 9 states (Oklahoma in 2012), with the 2014 Supreme Court ruling (Schuette v. Coalition to Defend Affirmative Action 2014) that bans were legal and constitutional.

Question 36

To what extent is State sovereignty challenged by the Federal Government?

Answer 36

STATE LOSS OF SOVEREIGNTY

1. Citizens Rights
   - Certain rights have been determined, such as federal drinking age is 21, and the Supreme Court case of Obergefell v Hodges 2015 effectively legalising same-sex marriage in every state.
2. Criminal Punishment
   - The supreme court has put numerous restrictions on the use of the death penalty while upholding capital punishment generally.
   - EXAMPLE. Kennedy v Louisiana 2008, Panetti v Quarterman 2007, Roper v Simmons 2005 all limit the use of the death penalty as passed through the final court of appeal (the Supreme Court) it can challenge state courts.
3. Electoral Regulation (democracy)
   - Federal laws, and constitutional amendments, have extended voting rights at a national level, lowering the voting age and extending voting rights regardless of sex and colour (Voting Rights Act of 1965).
   - Campaign finance laws and regulations are set at a federal level.
4. Taxes
   - Not only do citizens pay federal income tax (16th amendment), but states are also reliant on grants from the federal gov. when their own finances run low (resources adhere to policy requirements imposed by the federal gov) or in response to unexpected circumstance.
   - EXAMPLE. Hurricane Katrina 2005, the federal gov. spent more than $100 billion on recovery efforts, which would have been 50% of Louisiana’s annual GDP.
   - EXAMPLE. The Fiscal 2020 budget proposal sees Trump slash EPA (Environmental Protection Agency) budget by 31% has meant that states cannot meet required federal environmental regulations with insufficient funds.
5. Law
   - Federal gov passes laws that force states to comply (known as Federal Mandates) in the form of Acts of Congress which impose national standards on the states.
   - An increasing number of federal mandates since President Roosevelt’s new deal (1930) which create policy and financial restrictions on the states.
   - EXAMPLE. NFIB v Sebelius 2012, follows the Affordable Care Act 2010, Obama’s policy that required everyone to have health insurance by 2014, and challenge yet upheld by the Robert’s court as the individual mandate to buy health insurance as a constitutional exercise of Congress’s taxing power. In another perspective, Obamacare limited state choice in health care as all states are required to set up health exchanges (or federal health exchanges) in which they can purchase health insurance.
   - EXAMPLE. Clean Air Act 1970 authorised the development of comprehensive federal regulations to limit emissions from state sources.

Question 37

To what extent is democracy limited in the US Constitution?

Answer 37

DEMOCRACY LIMITED IN THE CONSTITUTION

1. Origins
   - Founding fathers were sceptical of democracy, perhaps due to their privilege of being white, educated, wealthy men, some of whom were slave owners and had a mistrust of popular democracy which would threaten this way of life in 1787.
2. The Electoral College
   - An indirect method of election for the president, the direct influence of the public was limited and could be overturned by electors.
3. An originally appointed Senate
   - This chamber was to be appointed by the State Governments, yet important when the individual powers of the Senate are taken into account, giving this once unelected branch considerable influence.
4. Equal representation for the States
   - While having two senators per state served to ensure that small states could not be ignored, it meant that larger populations were underrepresented in the Senate.
5. The 3/5ths compromise
   - With the number of Congressmen being allocated on the population, large slave-owning states were keen for slaves to be counted, but only valued as 3/5th of a person.
6. The Role of Supermajorities
   - Meant to ensure a simple majority could not be tyrannous over the minority, yet allow either complete ignorance of smaller minority views or for a small minority to stall major constitutional processes.

Question 38

How has the Constitution upheld Liberal and Representative Democracy?

Answer 38

LIBERAL DEMOCRACY

• EXAMPLE. Bill of Rights ensures that individual rights are upheld in Snyder v Phelps 2011, the right to free speech at the Westboro’ Baptist Church was upheld by the Supreme Court.
• The power and independence of the Supreme Court protect rights, justices have the power to overrule both elected branches without fear for their jobs.
• Checks and balances serve to ensure a limited gov, both Trump and Obama failing to achieve goals in Congress such as gun control, immigration or the repeal and replacement of Obamacare.

REPRESENTATIVE DEMOCRACY

• All appropriations bills must begin in the House of Representatives which is the most responsive house due to a 2-year electoral cycle and therefore most directly representative of its constituents.
• The House of Representatives ensures proportionality in representation, with largest states having the most.
• Amendments have extended the number of eligible voters in the USA, ensuring an increasing number of Americans can be represented.
• The Senate is now elected, ensuring a greater degree of popular sovereignty.
• Amendments to the Constitution cannot be made without the approval of the states, each of which is valued equally.

Question 39

How has the Constitution undermined Liberal and Representative Democracy?

Answer 39

LIBERAL DEMOCRACY

• Checks and balances can serve to limit gov. to such an extent that it ceases to be effective. Gov. shutdowns are becoming increasingly common with over 15 since 1981 which has made policy-making difficult as partisanship has polarised.
• The Electoral College undermines the principles of ‘free and fair’ elections, with the loser of the popular vote winning the presidential elections twice in the last 5 elections.
• EXAMPLE. Not all rights are effectively protected. Minority rights have been challenged in Shelby v Holder in 2013 and the existence of Guantánamo Bay poses significant questions over the effectiveness of rights protection.

REPRESENTATIVE DEMOCRACY

• The Supreme Court holds vast amounts of power to interpret the US Constitution and overrule the elected branches but is misrepresented of the general population in the Senate and unaccountable as the justices are not elected, this has prevented the government from carrying out policy.
• The Senate represents the USA by state rather than population, meaning smaller populations are overrepresented.
• The requirement at numerous points in the Constitution for a supermajority allows for the tyranny of the minority (the ability for the minority to exercise power in own interests over the majority), especially in the amendment process.
• EXAMPLE. Puerto Rico is not represented in the US as they can not vote for Congress or the president, but can vote in presidential primaries (similar with other territories such as the US Virgin Islands).

Question 40

How has the US Constitution remained strong?

Answer 40

CONSTITUTION REMAINING STRONG

• The vagueness of aspects has allowed for interpretative amendments by the Supreme Court, helping to ensure the relevance of the Constitution today being reactive to changing climates.
• As it is codified, it means that it is difficult to change and provides clarity about the rights of citizens which is enforced by the Supreme Court.
• The Constitution outlines and separates powers of each branch, with checks and balances and short election cycles ensuring that govs. work in the interests of people represented. EXAMPLE. Despite Trump’s pledge to ‘build a wall’ has struggled to gain finance for his policy despite unified gov (Republicans holding the Presidency and Congress) yet Congressmen act in line with constituencies over party.
• Amendment process works and allows the flexibility of the Constitution while preventing frequent knee-jerk changes (however the USA Patriot Act passed 45 days after 9/11).

Question 41

How has the US Constitution become weak?

Answer 41

CONSTITUTION BECOMING WEAK

• Vagueness has allowed broader interpretations, such as Article II paving for the hypergrowth of the executive branch. In areas where the Constitution is specific, it has prevented adaption (powers of Congress).
• The codification of the Constitution has led to outdated aspects remaining enforced and the potential to create gridlock in government through checks and balances.
• The framework can create gridlock in case of divided gov, and lack of scrutiny during times of unified gov (perhaps ineffective). EXAMPLE. The January 2018 gov shutdown happened when 1 party controlled both executive and legislature branch of gov, with no federal gov or federally run departments for 2 days. In 1995 it lasted 21 days.
• The amendment process has proven difficult, preventing necessary amendments while allowing for mistaken amendments to be made.