Constitution Flashcards
Background of constitution
No national executive or Judiciary, congress had no law making powers post War. Each state ran itself in loose confederation. Situation didn’t work
1787 Philadelphia Con-revise articles of confederation, delegates decide on new consi instead
NJ plan-1 vote per state in singular leg. Virginia plan-bicameral leg based on pop size
Conneticut compromise-bicameral senate (Every state-2 reps), house-435 reps based on pop size
Form of govt agreed upon balance between national and state power
Presi not directly elected or appointed. Electoral college serves as compromise
Constitution article
Supreme law of US. 7 articles, 7000 words. Codified and entrenched (super maj req for amendments)
1-est congress, bicameralism, election method, terms of office and powers
2-est presi, method of election, terms of office and power
3-est SC, judges terms of office and power
4/5/6-federalism, rights and responsibilities of state govts in relationship w/ federal govt
7-est procedure used by states to ratify it
Constitution only ratified alongside 10 amendments as many states believed it was too vague
Vagueness of constitution
Some powers of federal govt explicit w/in consi and some exercised today as result of vagueness
Enumerated powers are explicitly laid out in consi e.g congress ratifies treaties, the presi’s veto
Implied-exercised by branch of govt not directly stated in consi e.g ‘necessary and proper’ (elastic) clause which allows congress far greater scope over what laws it may pass
Broad interpretations of this clause in rulings such as McCulloch v Maryland have widened Congress scope beyond that prescribed in consi
SC implied power of judicial review est in Marburry v Maddison 1803 which allow it to declare acts by Congress, executive and state bodies unconsi and strike it down
Amendments of the US constitution
Ratified 1787
1791-amendments added collectively known as Bill of Rights (first ten)
Following ratification of Bill of Rights in 1791 there have been 17 further amendments over 200 years
Therefore 27 amendments since 1787
1st amendment
Right to free speech imp as right to donate to parties seen as expression of free speech e.g Buckley v Valeo, FEC V Citizens United
10th amendment
Roe v Wade overturned (unconstitutional). Not explicit under federal govt powers. Immediately issue is up to the state
2nd amendment
‘Shall not be infringed’-open to interpretation
Which part is imp-militia which would limit gun ownership to militia OR the people which would widen gun ownership
NRA-used to help people shoot but became politicised after members became increasingly conservative
District of Colombia v Heller 2008-right to keep and bear handgun in own home. However govt has right to restrict ‘dangerous and unusual’ weaponry which is open to interpretation
Amending the US constitution
Article V lays out 2 stage process-proposal then ratification
Proposal: Congress w/ 2/3 majority in favour in both houses (ensures bipartisanship)OR by national constitutional convention called at request of 2/3 state legislatures (latter never been used).
Ratification: 3/4 of state legislatures or 3/4 states holding a constitutional convention (used once to ratify 21st in 1933). Even bigger maj req
Unratified amendments
Some prominent amendments never ratified
e.g = rights amendments proposed 1972 and ratified by 34/38 req states. Advocates could not get last 4 states necessary and Congressionally imposed deadline for ratification passed
Deadline now removed so active again-still req 4 states
Advantages of amendment process
Supermaj ensures broad support for any amendments across US pol spectrum and pop as a whole
Protects consi from being changed by short lived pop opinion
Prevents tyranny of both larger states over small and federal govt over states. Smaller states have an amplified voice as consequence of = rep in senate
Provision for states to gen proposals via consi con prevents federal dom
Works as there have been amendments in US consi
Disadvantages of amendment processes
Req for supermaj makes it hard to pass amendments->fossilise or become outdated
Req for supermaj make it poss to ignore minority interests
Mistakes have been made (18th amendment)
Poss for small no. states to prevent an amendment passing, even if it is supported by maj of US pop
Amendment process in recent times
Clinton (1993-2000)-17 votes on proposed consi amendments. House of reps agreed to balanced budget 95 and flag desecration 95,97,209. Senate didn’t agree-1 vote short on passing balanced budget, 4 votes short of passing flag desecration 2000
Bush-6 attempts. 3/6 ban flag desecration received 2/3 maj. House voted on this 6 times since 1995, rejected again by Senate by 1 vote 2006.
Nov 2016-demo senator Boxer intro bill to abolish electoral college after Clinton won pop vote and lost election
Principle: separation of powers
Sep of leg, executive and judiciary
‘Clearly the spirit of the Constitution’-Jefferson 1797
Power should be divided between 3 govt branches w/ each acting both indy and interdependently. Prevents any 1 branch becoming too powerful and allows them to serve as ‘checks and balances’ for each other
Congress makes law, executive implements it, judiciary enforces/interprets it
Some functions overlap e.g SC justices nom by presi and ratified by Congresss
‘The constitution is supposed to have created govt of ‘separated powers’. It did nothing. Rather it created a govt of sep institutions sharing powers’-Richard Naustadt
Checks and balances
No branch should have too much power
Founding fathers tried to ensure co-op, compromise and consensus between branches and limit their ability to abuse powers and poss of tyranny. Given ability to limit and ‘check’ each others powers
Congress-override presi veto by 2/3 vote in both houses, controls budget and money the presi is allocated, senate can ratify or reject treaties and appts put to them by presi, can impeach presi for treason/bribery/other high crimes
Presi-veto any leg from congress, rec leg to congress in state of union address, power of pardon, noms to federal offices and courts
SC-judicial review and ability to declare acts and actions unconsi
Can also lead to gridlock and tensions;1969-2001:only 6 years in which presi was from same party which dom Congress (work together). Presi-4 year elections, congress 2 years. Occurs when executive and leg controlled by dif parties-hard to pass laws. Checks and balances goest oo far, relies on branches working effectively
Bipartisanship
FFs not in favour of pol parties (association with Westminster) but some thought they would develop. Consi not written with parties in mind but offers some safeguards which prevent them from becoming too powerful
Allows for dif groups to control dif branches of govt but forces them to work together. Shown in following ways:
House of Reps elected every 2 years: Presi 4 years: Senate 6 years (1/3 elected every 2 years). Dif parties and are frequently accountable to people
Supermaj req in some circs such as consi amendments and to override presi veto, an e.g of check and balances that req parties/branches work together
Limited government
FFs believed govt should only do what’s essential. This would leave citizen’s rights and freedoms as untouched as possible (pop sovereignty-Locke)
‘that govt is best which governs the least’-Jefferson
At philly there was disagreement between states about sovereignty and centrality of power-comp was federal system with limited power for national govt w/ checks and balances such as those outlined in first ten amendments in 1791’s Bill of Rights
Principle remains centrally sig to pol debate in US today (healthcare)
