Constitution () Flashcards
(ff, sop, equality, liberty and republicanism, federalism, bill of rights)
Explain the origins of the constitution
Explain the importance of the constitution
Protection of rights
Roles of Cong + Pres
Sup Court cases - legal approaches to reasoning
Explain key features of the Constitution
Codified
- 1st 3 articles focus on outlining powers of each branch
- Article 1- Legislature - ‘all leg. powers herein granted shall be vested in a Congress’ - gave house power of purse + cong. declare war
- Article 2- Executive - Pres chosen by electoral college
- Article 3- Sup court - + district and appeal courts - decide disputes of const.
- If goes beyond powers other branches of govt can check
– Clinton v City of New York
– Obama = 2016
– Nixon v US
– 176
– Buckley v Valeo
– Harper
– Citizens United v FEC
Blend of specificity + vagueness
[I] Implied powers - Congress- deduced under ‘elastic clause’ - ‘necc+proper’
– Mulloch v Maryland = ruled Congress has implied powers because of the necessary and proper clause
- Living document - interpret cases to modern scenarios - vagueness = room for interpretation
– Eisenstadt v. Baird (1972) = extended right to privacy for unmarried women for contraceptives
– Lawrence v Texas (2003) = Texas law banning consenting homosexual adults from engaging in sexual acts unconst. (right to privacy)
– Planned Parenthood v Casey = upheld right to abortion
– Carpenter v US (2018)= govt needs a warrant to access a person’s cellphone location history
– Create a national bank
– Set a min wage
– Punish tax evasion
– Punish mail fraud
[II] Reserved powers - reserved for states + people
[III] Concurrent powers - powers of both federal and state - e.g. collecting taxes
(Supremacy clause)
Entrenched
Difficult to amend - sup. maj
– George W Bush - prop. to ban desecration of flag failed in Senate in 2006
– Only 27
– More than 11,000 amendments have been proposed
– Federal Marriage Amendment has been introduced 4 times: 2003, 2004, 2005/2006, and 2008 (would prohibit same-sex marriage)
– Equal Opportunity to Govern Amendment would repeal the ‘natural born citizen clause’, allowing people who’ve lived in US for 20+ years to be Pres
Explain how the Constitution is influenced by the idea of democracy and participation
Bill of Rights
– The Alien and Sedition Act (1798) = criminalised false statements against the govt - Virginia and Kentucky Resolutions argued they violated the 1st amendment
– U.S v Cruikshank (1876) = 2nd amendment had no purpose other than to restrict federal govt
– D.C. v Heller (2008) = guarantees individual right to possess firearms, not collective right of state
– McDonald v City of Chicago (2010) = 2nd amendment was an individual right
– Miranda v Arizona case (1966) = established Miranda rights = ensured individuals aware of their right to remain silent
– Gideon v Wainwright = individuals accused of a crime have the right to legal rep.
–Others - US v Moalin, US v Katz, Roe v Wade, Eisenstedt v Baird
Federalism
- Ensures participation by all the states
– Wisconsin’s ‘education vouchers’
– California = environmental policies
– Oversight of federal govt - Greg Abbott + Ron DeSantis examples?
Limited government
Regular elections:
POTUS - article 2 section 1
“The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows”
Congress - Article I, Section 4, Clause 1:
“The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators”
– Gomillion v. Lightfoot (1960)
= forbids a state to deprive any citizen of the right to vote because of their race
– Newberry v. U.S. (1921)
= didn’t grant Congress the authority to regulate political party primaries or nomination processes
Explain how the constitution is influenced by the principle of separation of powers
Checks and balances + enumerated powers?
- Outlines powers of federal govt. in Article 1, Section 8 –> spec. limited + listed
- Separation of powers + checks & balances
– Clinton v City of New York
– Since Marbury v Madison Sup Court struck down 176 laws as unconstitutional
– Buckley v Valeo - spending limits unconstitutional
– Citizens United v FEC (2010) = preventing organisations from using their funds for political advertising violated 1st amendment freedom of speech
– Biden v. Nebraska
= Biden’s use of executive powers to cancel more than $400 million of student debt exceeded his authority
– 2016: Obama - use of exec. orders for imm. unconst.
Judicial Independence
1) Life tenure in times of ‘good behaviour’
– Truman = “wherever you put a man on the Sup Court he ceases to be your friend” - 2 of his appointments voted against him
– Eisenhower - Earl Warren - Brown v Board of Education - “that dumb son of a bitch Earl Warren”
2) No retirement age
– Pre 1900 - 38 / 57 died in office, since then 39 / 46 left by retirement
– Only to be impeached, Samuel Chase (1805), but not removed
– Ruth Bader Ginsburg - died office - 87
3) Salary which shall not be ‘diminished’ during time in office
– $265,000
– Chief Justice = $277,700 (2020)
4) Justices appointed, not elected
-Nom by Pres + approved by Senate - no single party can fill court with same ideology
5) Separation of powers
- Check on each other - impeachment
(examples)
Powers of the President
Executive Agreements
- Similar to treaties but don’t require senate approval
Obama = Iran Nuclear Deal + Paris Agreement
North American Free Trade Agreement (NAFTA) (1992)
Before 1940 = 1,200 executive agreements, 1940 - 1989 = 13,000+ executive agreements (with 800 treaties)
Executive Orders
- A directive by the president of the United States that manages operations of the federal government.
- Checks: Sup Court = judicial review
Congress can change law to block
- Pres can’t issue executive orders that go beyond the law in Article II of constitution
Examples:
– FDR = 3,721
– FDR - ‘Destroyers-for-bases deal’ - America gave Britain 50 overage destroyers in WWII in return for 99 year leases to certain naval bases
– Trump = repealed Obamacare
– Trump = temp. halt to refugee admissions
– 1957 = Eisenhower = end to racial segregation in schools
– FDR = transferred Japanese-Americans + German-Americans to camps in WW2
– Obama = banned torture (2009)
– Truman = nationalised steel industry
– Sup Court ruled in Youngstown v Sawyer Pres Truman couldn’t place steel mills under federal control because he couldn’t seize private property
– 1953 - Pres Eisenhower = allowed homosexuality to be a valid reason for rejecting an application/ firing someone from federal govt (only fully removed in 2017)
–1948 = Truman = desegregating military
Explain how the constitution is influenced by the principle of federalism
‘Supremacy Clause’
- Article 6, Clause 2: “This Constitution, and the Laws of the United States […] shall be the supreme law of the land..”
– McCulloch v. Maryland =
1st case ruled states couldn’t interfere with federal law
–Ware v. Hylton = treaties overrule conflicting state law
– 2015 = Sup Court ruled banning marriage between same-sex was unconstitutional. However, prev it was left up to states
Elastic Clause
- “Necessary and Proper Clause”
– McCulloch v. Maryland (1819) = Chief Justice John Marshall - creation of the bank within its implied powers
– Gibbons v. Ogden (1824) = interpreted Congress’s power to regulate interstate commerce under the Commerce Clause in conjunction with the Elastic Clause - ruled Congress’s power to regulate interstate commerce extended to activities that had a substantial effect on commerce
– United States v. Comstock (2010) = upheld commitment by fed govt of mentally ill, sexually dangerous prisoners beyond their prison terms - a necessary and proper exercise under Elastic clause
– Gonzales v. Raich (2005) = Congress could regulate intrastate cultivation and use of marijuana for medical purposes under the Controlled Substances Act (CSA) [despite California’s legalization of medical marijuana]
Commerce Clause
- Article 1, Section 8, Clause 3 - gives the power “to regulate commerce with foreign nations, among states, and with the Indian tribes”
– Gibbons v. Ogden (1824) = intrastate activity could be regulated under the Commerce Clause, provided that the activity is part of a larger interstate commercial scheme
– Swift and Company v US (1905) = allowed federal government to regulate monopolies if it has a direct effect on commerce
– US v Lopez (1995) = attempted to curtail Congress’s power under the Commerce Clause by returning to a more conservative interpretation of the clause - charged with carrying a handgun to school - violating federal Gun Free School Zones Act (1990) - argued federal govt had no authority to regulate firearms in local schools, while govt claimed that this fell under the Commerce Clause as it would lead to a violent crime - which would affect economic conditions
– NLRB v Jones & Laughlin Steel Corp (1937) - began recognising broader grounds - held activity was commerce if it had a “substantial economic effect” on interstate commerce or if the “cumulative effect” of one act could have an effect on such commerce
– Decisions such as NLRB v. Jones, United States v. Darby, and Wickard v. Filburn demonstrated the Court’s newfound willingness to give a broad interpretation of the Commerce Clause
Explain the ways in which Congress is subject to checks and balances
Checks by Pres
On Congress:
1) Veto - examples
2) Executive orders
= A directive by the president of the United States that manages operations of the federal government
– FDR = 3,721
– FDR - ‘Destroyers-for-bases deal’ - America gave Britain 50 overage destroyers in WWII in return for 99 year leases to certain naval bases
– Trump = repealed Obamacare
– Trump = temp. halt to refugee admissions
– 1957 = Eisenhower = end to racial segregation in schools
– FDR = transferred Japanese-Americans + German-Americans to camps in WW2
– Obama = banned torture (2009)
– Truman = nationalised steel industry
– Sup Court ruled in Youngstown v Sawyer Pres Truman couldn’t place steel mills under federal control because he couldn’t seize private property
– 1953 - Pres Eisenhower = allowed homosexuality to be a valid reason for rejecting an application/ firing someone from federal govt (only fully removed in 2017)
–1948 = Truman = desegregating military
3) Commander in chief - Bush– Afghanistan+Iraq
Checks by court
On Congress:
1) Judicial review – role in deciding rights in areas like freedom of speech, guns, privacy, abortion
examples of unconstitutional laws
Explain the ways in which the President is subject to checks and balances
Checks by Congress
On Pres:
1) Veto override
– 4/12, 1/12, 112 / 2,590
– Freedom of Info - Ford
– War Powers Resolution - Nixon
– Civil Rights Act (1987) - Reagan
– Comprehensive Apartheid Act - Reagan
2) ‘Power of the purse’ - refuse to fund wall, Foreign Assistance Act
3) Decline to pass leg. - Obama- Sandy Hook shooting 2012
4) Confirm Pres appointments – last time cab. nom rej= John Tower (def sec), last sup. rej= Robert Bork (1987)
- Director of the OMB needs conf.
– Armed Services Committee to discuss nomination of Melissa Griffin Dalton to be Under Secretary of the Air Force (Jan 2024)
– Foreign Relations Committee = Cardell Kenneth Richardson to be Inspector General (Jan 2024)
5) Impeachment = Trump, Clinton + Andrew Johnson
– Nixon challenged the use of an impeachment committee on constitutional grounds = Nixon v. US (1993), Sup Court upheld Senate’s right to determine its own procedures, including the use of a trial committee
Checks by court
On Pres:
1) Judicial review – federal courts challenged legality of spying on American citizens since 9/11
– 2016 - Obama
Variables??
-Elections:
2008: Obama vs McCain = 365-175
– LBJ vs Barry Goldwater = 486-52
– Reagan vs Carter = 489-49
– Jefferson vs Pinckney = 162-14
– Nixon vs McGovern = 520-17
Reagan vs Mondale = 525-13
FDR vs Langdon = 523-8
- Events:
– Obama = crash + Sandy Hook
– Bush = 9/11 (90%) + Hurricane Katrina
– Trump = Hurricane Maria
– Clinton = Oklahoma bombing + Lewinsky
United / divided govt
– FDR’s New Deal, LBJ’s Great Society, and Obama’s Affordable Care Act (Obamacare) were implemented when the same party controlled all three parts of government
Although divided, Dems worked with Ronald Reagan in 1980s
Explain the ways in which the Supreme Court is subject to checks and balances
Checks by Congress
On courts:
1) Impeach federal judges:
– Alcee Hastings (1989), Walter Nixon, Jr. (1989), and Thomas Porteous (2010), all of whom were convicted
– 8/20 guilty
– 15/20 have been judges
2) Pass constitutional amendments to overturn court rulings – 1896 - court found national income tax unconst- reversed
– Dred Scott and Sandford overturned by 13th and 14th amendment
– Ledbetter v. Goodyear Tire & Rubber Co - paid less than male for same job - court ruled they couldn’t do anything as discrimination happened too far in the past - Obama = Lilly Ledbetter Fair Pay Act (easier to file pay discrimination suits)
– 2000: ruled FDA couldn’t regulate tobacco - bipartisan Family Smoking Prevention and Tobacco Control Act allowed fed govt to reg. tobacco
Checks by Pres
On courts:
On courts:
1) Appoint all federal justices
2) Pardons + commutations
– Ford with Nixon
– Clinton - half-brother
– Ford and Carter pardoned hundreds of thousands of men who had evaded the Vietnam War draft
– Clinton = 396
– Bush = 189
– Obama = 212
– Trump = 7
– Obama’s last day = 330 commutations for drug offences
– Obama: commuted Chelsea Manning
Media
Explain the ways in which the Constitution is influenced by the principle of bipartisanship
Passing legislation
– Climate Solutions Caucus = bipartisan Senate Caucus consisting of Dems, Reps + Independ.
– 115th Congress + 116th Congress, members of Problems Solvers Caucus released proposals on important issues where they believed Dems + Reps could work together –> proposal to repeal the medical device tax became law
– 113th Congress - Sen. Murkowski = 33/43 bills drew cosponsors
– 107th Congress - Sen. McCain = 31/45 bills drew cosponsors.
Bipartisan cosponsors: Murkowski = 85%
McCain = 67%
(both had high legislative effectiveness scores compared to other members)
– Dems worked with Rep Ronald Reagan during 1980s
– Biden + bipartisan group of Senators agreed on a $1.2 trillion infrastructure package
– Reps + Dems came together on Military Sexual Assault Prevention (2021)
– Obama + Congress passed bipartisan leg = “Jumpstart our Business Startups” (JOBS) Act
– The ‘Era of Good Feelings’ (1815-1825)
Ratifying treaties
– Treaty of Paris (1763)
– United States–Mexico–Canada Agreement (2018)
– New Strategic Arms Reduction Treaty (NEW START) in 2010 required negotiation by Pres + supermajority (2/3) in Senate
- During first 200 years, Senate has approved more than 1,500 treaties, only rejecting 21
– Treaty of Versailles rejected twice
– Clinton: Comprehensive Nuclear Test Ban Treaty (1996) rejected
– Obama: Convention on Rights of Persons with Disabilities (2012)(treaty) rejected
– Jimmy Carter: Panama Canal Treaty (1977)
Confirmation of appointments
– Armed Services Committee to discuss nomination of Melissa Griffin Dalton to be Under Secretary of the Air Force (Jan 2024)
– Foreign Relations Committee = Cardell Richardson to be Inspector General (Jan 2024)
- 11 SC nom rejected by Senate
– Last = Robert Bork (1987)
– John Tower = Sec of Defence
or const amend
Explain the reasons why the Constitution is so rarely amended
High threshold for amendment
- Designed to be a difficult and deliberate process
- 2/3 in both chambers, then ratified by 3/4 states
– Justice Scalia = “constitution not meant to facilitate change, it is meant to impede it”
– George W Bush - prop. to ban desecration of flag failed in Senate in 2006
– More than 11,000 amendments have been proposed
– Federal Marriage Amendment has been introduced 4 times: 2003, 2004, 2005/2006, and 2008 (would prohibit same-sex marriage)
– Equal Opportunity to Govern Amendment would repeal the ‘natural born citizen clause’, allowing people who’ve lived in US for 20+ years to be Pres
– Equal Rights Amendment (guarantee equal rights regardless of gender) first introduced in 1923 but not yet fully ratified
Flexibility through interpretation
- ‘Living document’ that allows for interpretation and adaptation to changing societal needs
- Loose constructionists = influential in Commerce Clause (grants Congress power to regulate interstate commerce)
- Judicial review - interpreting const
- Interp. broadly or narrowly = flexibility without the need for formal amendments
– Brown v. Board of Education (1954)
– Obergefell v. Hodges (2015)
– Roe v Wade
– Buckley v Valeo
–Riley v California (police need a warrant to search phone)
Checks and balances or Partisanship + gridlock
- Protect against despotism
- Address emerging issues without constitutional change
– Clinton v City of New York
– Since Marbury v Madison Sup Court struck down 176 laws as unconstitutional
– Buckley v Valeo - spending limits unconstitutional
– Citizens United v FEC (2010) = preventing organisations from using their funds for political advertising violated 1st amendment freedom of speech
– Biden v. Nebraska
= Biden’s use of executive powers to cancel more than $400 million of student debt exceeded his authority
– 2016: Obama - use of exec. orders for imm. unconst.
Explain the ways the Constitution is effective
Protect rights
- 1st, 2nd, 5th, 6th examples
Limited govt - sep / checks + bal
– Judicial review, checks on cong, checks on Pres
Flexibility (but not too much)
- Living document
- Loose constructionists = influential in Commerce Clause (grants Congress power to regulate interstate commerce)
- Judicial review - interpreting const
- Interp. broadly or narrowly = flexibility without the need for formal amendments
– Brown v. Board of Education (1954)
– Obergefell v. Hodges (2015)
– Roe v Wade
– Buckley v Valeo
–Riley v California (police need a warrant to search phone
– Expansion of voting rights
– 15th amendment (vote regardless of race)
– 19th amendment (vote regardless of gender)
Balancing federalism
- Federal govt handles issues of national importance, state govt issues tailored to their specific needs
- Promotes innovation, responsiveness to local needs
Explain the ways the Constitution is ineffective
Gridlock
= When legislation faces difficulties in being passed due to different party control in the legislature or executive
- Can occur in two places:
– If the House of Representatives and Senate are controlled by different parties
– Congress is united under one party, but the Presidency is controlled by the opposing party
- Gridlocks can lead to government shutdowns. There have been 4 shutdowns:
1) 1995-1996, President Clinton + Republican Congress unable to agree on spending levels, so the government shut down twice= 26 days.
2) 2013: standoff over funding for the Affordable Care Act= 16 days
3) December 2018 and January 2019, a dispute over border wall funding led to a shutdown= 35 days; partial shutdown because Congress had previously passed 5 / 12 appropriation bills.
– 2023: Congress struggled to pass the federal budget because policymakers couldn’t agree on whether (or how) to raise the debt ceiling
– 2013: Republicans blocked President Obama’s judicial nominations
Ronald Reagan + George W Bush faced divided Congress
Difficulty in amending
– Equal Rights Amendment (guarantee equal rights regardless of gender) first introduced in 1923 but not yet fully ratified
– Only 27
– George W Bush - prop. to ban desecration of flag failed in Senate in 2006
– More than 11,000 amendments have been proposed
– Federal Marriage Amendment has been introduced 4 times: 2003, 2004, 2005/2006, and 2008 (would prohibit same-sex marriage)
– Equal Opportunity to Govern Amendment would repeal the ‘natural born citizen clause’, allowing people who’ve lived in US for 20+ years to be Pres
Electoral college popular vote discrepancies
– 1824: John Quincy Adams (Andrew Jackson had 10% more pop vote)
– 1876: Rutherford B. Hayes (47% v 50%)
– 1888: Benjamin Harrison (47% v 48%)
– 2000: George W. Bush (47% v 48%)
– 2016: Donald Trump (Hillary had 2.6% more pop vote)
(won pres but lost pop vote)
(+racial and social inequality, changing social attitudes)
Explain the advantages of the amendment process
Stability and endurance
– 13th amendment (abolished slavery) highlighted how long amendment process was
?
Protecting individual rights
– 19th amendment (women right to vote)
– 14th amendment = equal rights amendment
?
Checks and balances
– Equal Rights Amendment (same rights, regardless of sex) - lots of debate - heavily scrutinised
?
Explain the disadvantages of the amendment process
Slow
– Only 27
– George W Bush - prop. to ban desecration of flag failed in Senate in 2006
– More than 11,000 amendments have been proposed
– Federal Marriage Amendment has been introduced 4 times: 2003, 2004, 2005/2006, and 2008 (would prohibit same-sex marriage)
– Equal Opportunity to Govern Amendment would repeal the ‘natural born citizen clause’, allowing people who’ve lived in US for 20+ years to be Pres
– Equal Rights Amendment (guarantee equal rights regardless of gender) first introduced in 1923 but not yet fully ratified
Difficulty in addressing complex issues
– Gun control
?
Potential for entrenched interests
- Barriers for marginalised groups
– Struggle for civil rights - sig. options pre 14th + 15th amendment (Dred Scott and Sandford)
?
