CONSTITUTION - Is it still working? Flashcards
YES IT IS
Flexibility
Interpretive amendments allow the Constitution to keep its flexibility in response to changes. This can be seen in the Obergefell V Hodges case where same-sex marriage was ruled constitutional for the entirety of the USA.
YES IT IS
Interpretation
The interpretation of the Constitution by the S.C allows for non-partisan interpretation – Obamacare was upheld because the Supreme Court ruled it was valid tax under the Constitution.
YES IT IS
Amendment process
The amendment process has allowed for fundamental change whilst protecting the Constitution against frequent, and unwarranted change. E.g., allowing for an elected senate (17th Amendment in 1913)
YES IT IS
State independence
States have remained independent, with a wide range of laws, cultures, and practices across the entirety of the USA e.g., the variety of legislation concerning death penalty and weed.
The federal government has been prevented from gaining vast and unchallenged power e.g., the S.C ruled against the federal govt. V Texas in 2016
YES IT IS
Rights protection
Most citizen’s rights are protected though they may be controversial. The right to bear arms in the Second Amendment is stark evidence for this. The right has been upheld despite recent mass shootings such as Orlando in 2016, and Sandy Hook in 2012.
YES IT IS
Reflects changes in values
The Constitution has also been amended to reflect change in values e.g., the Senate is elected through popular vote.
IT IS NOT
Not reflective
A document dating from the days of Pitt and Mozart should not govern a twentieth century superpower.
How can one document, devised by 13 states over less than four million, be expected to work in twentieth century America, where there are 6 time zones, and over 325 million people.
IT IS NOT
Equal rep? Never gonna happen under this system mate
Equal representation of the states is not effective – In 2010, California (largest state), which has a population of under 34 million (68 times larger than Wyoming, which has less than half a million), has an equal number of senators.
The smallest 25 states contain just 16.2% of the country’s population, and so if the senators of the 25 smallest countries proposed a bill, it could be passed in the Senate, against the wishes of 270 million Americans in the largest states (tyranny of the minority).
IT IS NOT
Electoral College sucks
The EC system meant that Trump, who won three million less votes than Clinton, won the EC 304-227.
Further, in the EC, 7 electors cast their ballots for candidates other than those won by their state’s popular vote.
IT IS NOT
Hyper-partisanship
Hyper-partisanship = Republican senators support all Republican nominees whilst Democrat senators support all Democratic nominees.
IT IS NOT
Power to declare war
In regard to declaring war, the Constitution in 1787 provided Congress the ‘sole power’ to make war. Due to the large nature of Congress, the wording was changed so that the president ‘could repel sudden attacks’
This can be seen through the declaration of war in 1941, and then the use of US troops in Iraq, Afghanistan, Vietnam, Korea, Cambodia, and other lower-profile deployments. Presidential war-making powers is at the heart of imperial presidency… the constitutional checks and balances are not working fundamentally.
IT IS NOT
Too vague
What did the framers mean about Gun Laws?! Did they mean that Americans had the collective right to own guns related only for the formation of state militia, or did they want individuals to have the right to own a gun?
Until the District of Columbia V Heller 2005, there was no agreement on what they meant. After the case, the second interpretation was upheld.
IT IS NOT
Amendment process is ineffective
Amendment process is undeniably hard… last amendment was in 1992 (27th Amendment) - ‘The Twenty-seventh Amendment to the United States Constitution prohibits any law that increases or decreases the salary of members of Congress from taking effect until after the next election of representatives has occurred’
All modern-day flaws remain un-correctable which is why it is inefficient
IT IS NOT
Judicial review is ineffective
Powers of Judicial review are also out-dated – S. C’s power of judicial review is not mentioned in the Constitution at all.
Following the case Marbury V Madison in 1803, the court found the power to declare acts of congress as well as actions of the executive branch as unconstitutional.
IT IS NOT
Originalism V Living Constitution
Should the Court perform its quasi-amendment function? Justices who believe that the constitution is a living constitution, would argue that it is what the court should be doing.
But those who believe in the principle of originalism, would argue, that the court should merely interpret the document based on the intent on the time it was written (the intent of the framers) - approach the legislators and not the judiciary if you are such a snowflake…
