Constitution Flashcards
Enumerated powers
Powers are delegated to the federal govt under the constitution
- eg power to coin money, to regulate commerce, to declare war, to raise and maintain armed forces, and to establish a Post Office.
Implied powers
Powers possessed by the federal govt by interference from those powers delegated to it in the constitution
- Article 1, Section 8 is called the “Necessary and Proper Clause” or the “Elastic Clause.”
Reserved powers
Powers not delegated to the federal govt or prohibited by it to the states are reserved to the states and to the people
Concurrent powers
Powers possessed by both the federal and state govts
Article 2
The executive.
- Section 2 : Powers of the President.
Artcile 1
Legistative branch
- Section 1: “All legislative Powers herein granted shall be vested in a Congress”
- Section 8: sets out the Powers of Congress
Article 3
The Judiciary
- Section 1 : The judicial Power of the United States, shall be vested in one supreme Court
Principle of the Constitution
What is meant by the ‘Doctrine of The Separation of Powers?’
power is distributed among three branches of government- The legislature, Judiciary and Executive- all acting independently and interdependently (checks&Balances)
Principle of the Constitution
Checks and balances
- Each branch exercises control over the actions of the other branches of government.
- This system enforces the separation of powers among the
branches and prevents any single branch from becoming too powerful.
Principle of the Constitution
Examples of the vagueness of the constitution
1) General welfare clause. (affordable health care and health care reform act justified under this)
2) Necessary and proper clause. (roosevelts New Deal)
3) general protection of the people (9/11 and the patriot act)
4) The President shall be Commander in Chief of the Army and Navy of the United States (Does not clearly define air force - therefore, US Presidents can use air strikes/drone strikes without Congressional approval.)
Checks and balances
3 Checks by the Legislature on the Executive
1) Amend/delay/reject the presidents legislation. Eg/Delay and amendments to Obama Care
2)Override the presidents veto. Eg/ 7 of nixons vetoes were overridden(incl war powers act of ‘73)
3)Senate has the power to confirm/reject nominations for judicial and executive positions. Eg/ Solicitor General Donald B Verelli. Withdrawal of Harriet Miers Nom by Bush.
Checks and balances
3 Check by the Legislature of the Judiciary
1)Senates power to confirm appointments. eg/ Sotomayor and Kagan, obama would not have been confirmed if they were too extreme politically.
2)Initiate constitutional amendments. eg/ 27th amendment 1992-preventing laws effecting congressional salaries from taking effect until the next session of congress. eg/Possible changes to gun rights to allow for gun control.
3)Impeachment trial and conviction from office for any member of the judiciary. Eg/1802 Samuel Chase was the only justice to be impeached. But constant threat of removal from office through impeachment.
Checks and balances
2 Checks by the executive on the judiciary
1)Appointment of Judges. Obama/Sotomayor and Kagan
2)Grant Pardons. Eg/ Bill Clinton, Cocaine smuggler Carlos Vignali. Eg/Obama 16 Pardons incl James BErnard Banks-Illegal possession of government property.
Checks and balances
3 Checks by the Executive on the Legislature.
- Veto - President Donald J. Trump vetoed 10 bills
- Executive order - A month after the shocking terrorist attacks of September 11, 2001, President George W. Bush signed Executive Order 13228 creating the Office of Homeland Security
- Commander-in-chief - The President shall be Commander in Chief of the Army and Navy of the United States (Does not clearly define air force - therefore, US Presidents can use air strikes/drone strikes without Congressional approval.)
Checks and balances
Check by the judiciary on the legislature
Judicial Review is the 2015 case, Obergefell v. Hodges, which ruled that state laws banning same-sex marriage were unconstitutional under the due process clause of the 14th Amendment.
- power to declare something eirther consttitutional or unconstitutional
Checks and balances
Check by the judiciary on the executive
1)Judicial Review.
-Obama bypassing congress to make appointments to labor relations pannel.
Constitutional amendments
Why is it hard to amend the constitution ?
1) The aim was to make a government that was stable and
permanent, with some element of flexibility.
2) vagueness of the constitution- allows evolution. (civil rights, plessy V Ferguson, Brown V Board)
3) SC power of Judicial review-meaning changes though words don’t (civil rights, plessy V Ferguson, Brown V Board)
4)The separation of powers and the checks and balance inhibits cooperation between the branches
5)States have constitutions which are far easier to change of which they do frequently like Georgia’s constitution has been rewritten 10 times
Constitutional amendments
How can Formal constitutional amendments be proposed?
1)National Constitutional Convention. At the request of 2/3 of states-never been used. - ratified by Agreement of 3/4s of the states
2)Can be proposed by congress, a 2/3 majority is required in both houses
Constitutional amendments
Informal Methods of Changing the Constitution
The Supreme Court through published decisions effectively alters the charges of the Constitution as it judges Congressional laws and executive actions. The manner in which the government operates and fulfills its duties outlined in the Constitution is based on court decisions and precedents.
Constitutional amendments
Bill of Rights
1 - 10 amanedments guarantee certain individual and states’ rights.
- 1st ammendment - Freedom of speech, religion, and the press.
- 2nd amendment -The Right to bear arms
- 10th amendment - Powers Reserved to the States
Constitutional amendements
3 Other formal Amendments
- Thirteenth Amendment 1865 – ended slavery across all of
the USA (but not if you are incarcerated [in prison]) - Nineteenth Amendment (1920) – gave women the right to
vote - Twenty- second Amendment (1951)- prevented the
president from serving for more than two full terms
Federalism
What is Federalism?
-Theory of government by which political power is divided between the federal government and the states.
-Each having there own areas of substantive jurisdiction.
-Not a fixed concept.
Federalism
what are the 3 phases of federalism
Dual Federalism
Co-operative Federalism
New Federalism
Federalism
Cooperative Federalism
- 1930s through to the 1960s
- the
- `division in political power are less clear cut.
- saw a huge expansion in the size and scope of the federal government
- majority of Presidents were Democrats, with the
exception of Dwight D Eisenhower. - The period saw the introduction of new executive departments including Defence (1949), Health, Education & Welfare (1953), Transportation (1966).
Federalism
Dual Federalism
- 1780-1920
- It is characterised with a large focus on states rights,
and a limited federal government that was focussed on money, war and peace. - Clear cut between the states and the federal government.
Federalism
New Federalism
- 1970s to the 2000s and incorporates mainly Republican Presidents.
- Federalism is characterised through the shift of power back to the states from the Federal Government.
- President Reagan, that the ‘Federal Government did not create the
states; the States created the Federal Government”.
COMPARATIVE THEORIES
STRUCTURAL THEORY
- Bicameral system with 2 houses one elected and one unelected (650 MPs)(over 700 lords) while the US has Bicameral but both houses are elected HOR-every 2 years senate - every 6 years
- Executive is part of legislative but judiciary has only recently been separated from the legislative (2005) argument for elective dictatorship. In the US - Clear separation of powers between the three branches which perform checks on each other e.g. senate confirmations of presidential and judicial appointments . However can often lead to gridlock eg 2018 over trumps budget for his border wall
- Devolution - each state in uk has different devolved powers eg scotland can raise income tax but wales and NIR cannot - not clearly outlined in constitution. Federalism- each state has their own powers explicitly given by the constitution eg elections are run by states so each state uses their own system
COMPARATIVE THEORIES
RATIONAL THEORY
- One party holds the executive and the legislative (with a majority) - elective dictatorship theory . In the US the Constitution aims to promote cooperation and did not intend to have parties - promotes bipartisanship as can often have divided government where the house has one party and the senate has another eg as of now house-republicans president is democrat - gridlock eg over trump’s wall
- Pm can be checked by parliament but is ineffective if has majority - PMQs , liaison committee,votes of no confidence . in the US constitution is Designed to have many checks and balances within the gov eg trump appointed 4 justices
COMPARATIVE THEORIES
CULTURAL THEORY
- Uncodified , not entrenched, not judiciable ,not authoritative eg amendments can be made easily such as constitutional reform act 2005 . USA - Codified, entrenched, judiciable, authoritative eg needs a 2/3 Congress ¾ States - Very hard to change, Only 17 Amendment since 1791 eg 13th Amendment abolished slavery
- Many different sources - unclear and rigid conventions + authoritative works which can be ignored. USA - Only 7 articles and 27 amendments-Has vague articles eg 2nd amendment references the right to bear arms as a militia to protect the usa from british
- Constitutional monarchy with the monarch as the head of state but with no legal authority. USA - Is a republic with the president as the head of state
