Constitution Flashcards
Describe the Declaration of Independence.
In 1776, 13 colonies signed it before defeating the British in 1783.
What is confederacy?
A league of loose connection between independent states in which the central government lacks power.
When was the US constitution implemented?
1789.
Describe the Philadelphia Convention.
In 1787, 55 delegates from 12 of the 13 colonies met and concluded that the Confederacy was weak. They decided to build the US constitution. They had disputes over the New Jersey Plan and the Virginia Plan.
What is the New Jersey Plan?
The proposal of a Congress based on equal representation - favoured by smaller states.
What was the Virginia Plan?
A congress with representation based on population. The idea was proposed by James Madison.
What was the Connecticut Compromise?
The agreement to make two chambers of Congress, one based around equal representation and one for the population.
What is codification?
The process of writing a constitution down in one document?
What are the first 3 articles of the constitution?
1 - Congress
2 - President
3 - Supreme Court
What is the Supremacy clause?
The portion of Article VI that states that the Constitution should be the law of the land.
What are enumerated powers?
Powers delegated the the federal governments. Most of these are in the first 3 articles of the constitution.
What is the impact of the vagueness of the constitution?
- allowed for compromise at the Philadelphia Convention
- allows it to evolve without formal amendment
- can cause disputes and misunderstandings
What are the implied powers?
The powers not explicitly mentioned but are implied through the enumerated powers.
What is the necessary and proper clause?
The final clause of Article 1, Section 8 which empowers Congress to make all laws ‘necessary and proper’ in order to carry out the federal govt powers.
What is the necessary and proper clause also known as? and why?
the elastic clause because it allows for the powers of the federal govt to be stretched.
Which 1819 case shows the elastic clause in action?
McCulloch v Maryland - they ruled that Congress could create a national bank despite that not being mentioned in the Constitution.
What can the SC declare unconstitutional?
- acts of Congress
- actions of the executive
- acts of state governments
When was the first time that the SC declared an Act of congress unconstitutional?
Marbury v Madison 1803
What are the enumerated powers of Congress?
- legislating for the country
- tax and duty collection
- borrowing money
- establishing currency
- establishing Post Offices
- declaring war
- maintaining the army and navy
- amending the constitution
What are the implied powers of Congress?
- levy and change taxes as required
- drafting citizens to the armed forces if needed
What are the enumerated powers of the President?
- head of the executive
- nominating cabinet members ad judges
- granting pardons
-commander-in-chief of the army and navy - legislation
- proposed measures to Congress
What are the implied powers of the President?
- commander-in-chief of the US Air force - didn’t exist when the constitution was written.
What are the enumerated powers of the Judiciary?
rule on cases surrounding the constitution
What are the implied powers of the Judiciary?
declaring acts unconstitutional
What are reserved powers?
powers not delegated to the federal govt. they are set aside for the states or people.
What are Concurrent powers?
powers held by both the federal govt and the states. This includes collecting taxes and building roads.
What is entrenchment?
when there are extra legal safeguards that make it difficult to amend or abolish something.
Which article outlines the amendment process?
Article 5
How many amendments have there been to the US constitution?
27 - this includes the 10 amendments of the Bill of Rights which was ratified in 1791.
How does the amendment process begin?
In stage 1, the amendment must be proposed. This can come from either Congress or a national constitutional convention called by Congress after a two thirds majority of state legislatures agree. All constitutional amendments have been proposed by Congress.
What happened in 1992?
32 state legislatures proposed a balanced budget amendment . They were 2 short of a majority.
How many amendments have been passed to the states from Congress for ratification?
33, 27 were successful.
Why was the Bill of Rights introduced?
Many states were worried that singing up to the Constitution would limit their rights. The Bill of Rights was used to ensure the rights of all Americans were protected.
What was the Bill of Rights made up of?
1 - right to freedom of expression
2 - right to bear arms
3 - no quartering of troops in private homes
4 - no unreasonable searches allowed
5 - right of accused persons
6 - right of trial
7- common-law suits
8 - cruel and unusual punishment not allowed
Give some other important amendments?
19th - 1920 - gave women the right to vote
22nd - 1951 - presidents max two terms in office
Why has the constitution been amended so rarely?
- the Founding fathers made it difficult on purpose
- party polarisation and increasing size of Congress has made supermajorities hard
- vagueness allowed it to evolve without amendment
- judicial reviews
- Americans are cautious about changing it
What are the 3 most popular areas of constitutional amendment in Congress?
balanced budget, campaign finance and congressional term limits.
What are the advantages of the amendment process?
- protects the constitution - means that no one can gain too much power. This frustrated Trump when he called it archaic.
- protects the states - 10th amendment makes it clear that federalism must be upheld
- requires broad support - can’t pass without a supermajority
- prevents ill-thought-out amendments
What are the disadvantages of the amendment process?
- difficult to amend outdated provisions - this included the idea to amend the electoral college which has elected two presidents without a real majority.
- goes against majoritarian democracy
- enhances the power of the unelected Supreme Court
- states with small populations have too much influence
What are the 4 foundational ideas of the Constitution?
separation of powers, checks and balances, bipartisanship, federalism
Give an example of separation of powers.
Kamala Harris resigning from the Senate to become VP.
What did Neustadt claim?
separation of powers didn’t exist. rather it was separated institutions sharing powers.
How did Obamacare become law?
- both houses of Congress had to pass the bill
- the president needed to sign it
- it had to go through the SC as some people found it unconstitutional.
This shows the sharing of powers
What are the exceptions to the rule of shared powers?
- the VP is president of the Senate
- the President’s power of pardon is legal not an executive power
What are the checks of power on the President?
- Congress can amend or veto legislation eg Trump was blocked from removing Obamacare in 2017
- Congress can override their vetoes, although a supermajority is needed
- Congress can reject budgets submitted by the President - this happened to Trump and led to a federal shutdown for 35 days in 2018-9.
- Congress can declare war - last used in 1941 with WW2.
- Senate can ratify Treaties - in 1999 they rejected the Comprehensive Test Ban Treaty
- Senate approves appt of judges
- Impeachment
- investigation of the executive branch
- SC can declare actions of the president unconstitutional
What are the checks on the powers of Congress?
- the president can veto legislation eg in May 2020, Trump vetoed the Iran War Powers regulation
- the President can use executive agreements to negotiate with a foreign power rather than do treaties which can get around the Senate
- SC can declare acts unconstitutional
What are the checks on the power of the judiciary?
- Congress can propose constitutional amendments
- Congress can impeach, appt and remove judges
- Presidents have the power of pardon.
What is bipartisanship?
Close co-operation between the two major politcal parties
Give an example of bipartisanship.
George W Bush was able to make his several reforms by working close together with a leading democrat Edward Kennedy.
What is a divided govt?
When the presidency is controlled by one party and Congress is controlled by the other.
Between 1969 and 2021 how many years were a divided govt?
36
How can a divided govt make politics more effective?
more scrutiny, treaties checked carefully, nominees questioned more.
When was the last time the Senate rejected a treaty from its own party?
1935
How many times in the last 50 years has Congress overrode a veto from its own party?
2
How can a divided govt make politics less effective?
agreements are harder to reach due to a huge ideological divide
How many laws did the 2019-2021 Congress pass?
344 - making it one of the least productive Congresses of the last 50 years
What was the CARES act?
Coronavirus Aid, Relief and Economic Security Act 2020 - Congress granted $2.2 trillion to the US economy.
What are the arguments to suggest the the Constitution still works?
- federalism is an effective compromise
- the text does adapt to changes well
- the demanding amendment process means no crazy amendments happen.
- the rights of Americans are upheld well
- the SC’s power of judicial review has made it more adaptable.
What are the arguments to suggest the the Constitution doesn’t work?
- the amendment process is too difficult
- the judicial review gives it too much power to make changes
- too much power given to those who oppose change
- the electoral college is bad
- some parts don’t work as was envisaged
What is federalism?
when govt power is divided between the national and state governments
What is limited government?
The idea that the power of the federal govt should always be limited to that which is necessary for the common good.
Why does federalism suit the USA?
It is a large country with big variations in priorities and beliefs.
Was federalism mentioned in the constitution?
No
How was federalism implied?
- written into enumerated powers
- included in the implied powers
- states were given concurrent powers
- the 10th amendment references the powers of the state
What are the powers that are purely federal?
- creating and maintaining armed forces
- conduction foreign relations
- declaring war
- coining money
Which powers are for the states only?
- establishing local govt
- regulating elections
- maintaining a militia
- assuming powers eg school controls and issuing licenses
Which powers are concurrent?
- constitutional amendments
- levying taxes
- establishing courts
- making and enforcing laws
What is a key feature of US federalism?
dual sovereignty
What are the 3 stages in the development of US federalism?
- dual federalism with a limited role for the federal govt (1790s and 1930s)
- cooperative federalism where the state and govt works together (1930s to 1960s)
- new federalism in an attempt to reduce federal power and return it to the states (1960s to 2000s)
What is federal encroachment?
the increase in the power of the federal govt at the expense of the states
How do states retain autonomy in law?
criminal punishment varies - death penalty exists in 29 states and they all have different methods of execution.
taxes are different
legal status of weed varies - legal in 11 states
How do states retain autonomy in healthcare?
have the power over medical insurance since 2010
How do states retain autonomy in elections?
there is a wide range of methods of voting across the US.
How do states retain autonomy in immigration?
California provided a safe space for immigrants despite Trump’s wishes and did not listen to his travel bans.
How do states retain autonomy in national crises?
- COVID - 32 states issued their own state of emergency before the govt did
- 7 states didn’t issue stay at home orders in March or April of 2020
- Trump wanted to keep the states as open as possible but accepted that if the states wanted different, they could have it
How do states retain autonomy in SC rulings?
- Obamacare meant that many states would lose power in relation to healthcare, many states sued and the SC agreed that its principles violated federalism
- US v Texas 2016 saw the SC strike down Obama’s use of executive order to implement immigration reform
How do states lose autonomy in finances?
- the federal govt have increasingly offered grants to states for support. For example, the CARES act.
How do states lose autonomy in healthcare?
healthcare is very dependent on state funding. In 2003, the Medicare Act was expected to cost $400 billion in the first ten years meaning states would have to pay more.
How have states lost power in education?
No Child Left Behind Act saw Bush enact sweeping changes to the education system which meant that states had to test children yearly. Obama continued this by investing $4 billion into the Race to the Top Scheme.
How have states lost power in defence?
Between 2001 and 2008, defence spending increased by 125%. This was due to 9/11. It was also the catalyst for the PATRIOT Act 2001 which gave the federal govt significant powers to detain people. The new cabinet department of Homeland Security was also established.
How have states lost power in illegal immigration?
Trump wanted to build a wall against Mexico. 16 states filed a law suit against that and in May 2019, Judge Gilliam of the District Court ruled that the executive had overstepped its power. The SC overturned this by 5-4 meaning that the wall could go ahead.
How have states lost power in national crisis?
After Hurricane Katrina in 2005, the govt responded with around $120 billion of economic aid. COVID-19 also saw the federal govt involved in the CARES act.
What are the arguments that suggest the Supreme Court is a federal nation still?
- all citizens pay federal tax and state tax
- healthcare is heavily dependent on federal funding
- the federal govt has mandated education
- homeland security department increased.
- the federal govt provides relief from crises
- the SC has ruled in favour of federal power.
What are the arguments that suggest the Supreme Court is not a federal nation still?
- laws vary significantly
- states control medical insurance
- electoral processes are different
- sanctuary cities
- national crises autonomy
What were the original limits on democracy in the constitution.
- the HOR was elected but only by property owning males over 25
- slaves counted as 3/5 of a person not a whole one
- the senate was nominated, not elected
- the president was elected by the electoral college
- each state could draw up its own boundaries.
Why is it a strength that the constitution is hard to amend?
- doesn’t conform to short term trends
- needs a broad agreement
- vagueness already helps
- amendments that aren’t passed usually just don’t have sufficient support.
Why is it a weakness that the constitution is hard to amend?
- supermajorities make amendments nearly impossible
- amendments have a 0.2% success rate
- partisanship is increasing
Why is it a strength that the constitution is vague?
- allowed for SC to interpret
- can be more progressive
- can protect rights in unforeseen circumstances
Why is it a weakness that the constitution is vague?
- broader interpretation than was envisaged
- conservatives argue that the founding fathers would not have supported same sex marriage or abortion
Why is it a strength that the constitution protects rights?
- protects from excessive govt control
- many minorities need their rights protected
- the death penalty is unpopular as it violates the 8th amendment
Why is the constitution weak in protecting rights?
- In Shelby v Holder 2013, the SC struck down section 4 of the Voting Rights Act 1965, voting may now not be fair for black people.
- They overturned Roe v Wade in the SC.
- The death of George Floyd reinforces that there is a way to go in improving rights.
Why is the constitution strong is separation of powers?
- checks and balances ensure even powers
- overlaps between the exec and legislature ensures more cooperation
Why is the constitution weak in separation of powers?
- growth in the power of the federal states
- more presidential foreign policy power
- polarisation of parties
- Number of bills that become was is only 2-3% of those suggested
How many words are in the US constitution?
7000
How do the UK and US differ in terms of nature and sources?
- the UK has 5 sources, the US has 1
- the US is codified, UK is not
- US is entrenched, UK is not
- UK has a sovereign parliament, US has a sovereign constitution.
- US had a president, UK is a constitutional monarchy with a PM
How do the UK and US differ in separation of powers?
- UK is partially fused, US is totally separate
- far more checks and separation in USA
- both have devolved govts or states
How do the UK and US differ in terms of the legislature?
- US has two elected chambers, UK has 1
- the PM is in the legislature with a majority (usually) whereas in the US, there can be divided govt
- the PM usually has more legislative control
- UK has few formal checks and balances
- UK legislature is sovereign
How are the UK and US similar in separation of powers?
- both are representative democracies
- both have 3 chambers
- both have SCs
How are the UK and US similar n terms of the legislature?
- both bicameral
- both have houses that can propose legislation
- PMs and Presidents can propose legislation.
How do the UK and US differ in terms of the executive?
- the PM is first amongst equals while the PM is the leader
- cabinet members in the US are experts, in the UK they are politicians
-in the UK, the cabinet meets regularly, in the US they meet as the president wishes.
How are the UK and UK similar in terms of executive?
- members are appt by the PM and President
- in the US, cabinet plays a small role in policy
- US cabinet members are not rivals to the president
How do the UK and US differ in terms of the judiciary?
- the US can declare actions unconstitutional, the UK cannot
- the US is politically appointed.
- the UK supreme court is not the highest court
How are the UK and US similar in terms of the judiciary?
- they are independent
- rule on rights
- made up of respected judges
- unconstitutional and ultra vires
What are the similarities between federalism and devolution?
- use of national grants
- varying of legislation
- central govts remain superior
What are the differences between federalism and devolution?
- states have more autonomy
- states can appeal to the SC
- devolution can be reversed
How does the structural approach work?
- focuses on institutions in a political system and their processes
- suggests political outcomes are based on formal structures and processes
- suggests lives of individuals are dependent on where they fit in the structure
When is the structural approach especially relevant?
- when comparing legislatures, executives, judiciaries, constitutions, electoral systems, political parties and pressure groups.
How does the rational approach work?
- focuses on the individuals in a system
- suggests individuals have their own sets of goals and this is what motivates politics
When is the rational approach most relevant?
- when comparing legislators, members of an executive branch, voters and members of parties or pressure groups
How does the cultural approach work?
- focuses on shared ideas within a system
- suggests that shared ideas and beliefs often determine the actions of that group.
- the culture gives collective identity, says what is important to use and tells us how to behave .
How can the rational approach be used in relation to the constitution?
- it is in the interests of individuals within devolved govts to compete for sovereignty. this was shown by the pandemic when many adopted their own approach. Similarly in the US, all states had their own approach.
- US citizens can rationally pursue their rights granted in the BOR to prevent to federal power from becoming too large. In the UK, the Human Rights Act provides the same opportunity to fight for rights.
- there are different numbers of access points for members of pressure groups in the UK and USA.
How can the cultural approach be used in relation to the constitution?
- the cultural history of the US and the BOR reflects the intent of the Founding Fathers to have rights protected by the constitution. The constitution is a reflection of of previous British rule
- the UK constitution has been a gradual development and hasn’t experienced a large amount of cultural upheaval. The UK constitution has evolved over time.
- in the USA most citizens value and understand the constitution more than people in the UK.
How can the structural approach be used in relation to the constitution?
- there is the structural difference between UK and US constitution in that it is entrenched and codified
- the US constitution has only been amended 27 times.
- the strict separation of powers in the USA is a structural difference to the fused powers in the UK.
- as both chambers in the US are elected they are equal and in the UK only one chamber is elected and therefore the HOL is dominated by the HOC.
