Essay plans - US Constitution Flashcards
What is the nature of the US Constitution?
CODIFIED
It contains 7 articles – the first 3 outline the enumerated powers of the federal gov – its power is not unlimited.
E.g. Article 2 gives exec power to commute sentences and grant pardons - Obama pardoned 212 and Trump pardoned Joe Arpaio, the controversial former sheriff of Maricopa County, Arizona, who critics have long accused of violating the legal and constitutional rights of Hispanic citizens in 2017.
BLEND OF SPECIFICITY AND VAGUENESS
Implied powers are vague e.g. power to draft into AF raised from enumerated power to raise an army/navy.
Powers can be stretched through the elastic clause, which allows Congress to pass all laws ‘necessary and proper’ for carrying out the enumerated list of powers.
E.g. NFIB v Sebelius (2012) upheld most of the provisions of the Affordable Care Act even though many argued that it was not the correct use of the elastic clause.
ENTRENCHED
Provisions are entrenched which means that they are particularly difficult to amend/abolish.
E.g. The Bill of Rights which contains the first 10 amendments is entrenched and can only be changed by another constitutional amendment – 2/3 of house and senate and ¾ of states.
What are the key principles?
POPULAR SOVREIGNTY
the concept that power rests with the people who can create/amend/abolish gov and can express this through elections – direct democracy makes up a large part of US life – e.g. 19 states use recall elections which can remove elected officials.
However, faithless electors go against the will of the people - 7 in 2016.
CHECKS AND BALANCES
A system where each branch has powers to check/limit each other in order to ensure that no branch gains too much power.
E.g. Judiciary can declare exec actions to be unconstitutional - Hamden v Rums field (2006): SC declared the military commissions set up by Bush to try members of Al Qaeda as unconstitutional.
FEDERALISM
a system of government where power is divided between a central/federal gov and state/regional govs.
Whilst federal gov has power to print money, declare war, enter treaties with foreign govs etc, the states have the power to regulate intrastate commerce, conduct elections, ratify amendments to constitution etc.
What framework of government was laid down in the US Constitution?
SEPARATION OF POWERS
all three branches of gov are separate from each other so that the powers of one branch are not in conflict with the powers associated with the other branches – John Kerry had to give up being senator for Massachusetts to become Sec of State in 2013.
Unlike the UK where members of the exec are also members of the legislature.
SPECIFIES THE POWERS OF EACH BRANCH
The SC has the power of judicial review – can review actions of leg/exec - George W. Bush V. Albert Gore Jr (2000)- S.C. ruled manual recount scheme devised by the Florida State was unconstitutional because it violated the ‘equal protection’ clause of the 14th amendment.
Exec has power to veto leg and congress has power to override veto e.g. JASTA 2016.
SPECIFIES THE POWERS OF THE FEDERAL/STATE GOVERNMENT
Article 1 delegates specific powers to the federal/state govs.
E.g. fed gov has power to enter treaties with foreign govs – New START (2010) betw. US and Russia to halve their number of missile launchers and declare war.
Whereas states have power to conduct election – e.g. Montana just uses postal ballots.
Does divided government make checks and balances more effective?
ALLOWS FOR MORE RIGOROUS SCRUTINY
Bills scrutinized more carefully, and treaties/nominees questioned more vigorously.
Senate hasn’t rejected treaty of own party since 1935.
Congress has only overridden a veto of its own party twice in last 50 years.
WEAK OVERSIGHT WHEN UNITED
2003-6: weak oversight allowed Bush to conduct war in Iraq.
In united gov, Johnson was able to pass Tonkin Gulf Resolution and do what he liked in South Vietnam.
UNNECESSARY SCRUTINY
Aggressive treatment of Clarence Thomas by Dem Senate in 1991 – made sexual allegations.
Impeachment of Clinton by Rep congress in 1998.
What factors increased the role of the federal government?
WESTWARD EXPANSION
From 13 colonies, settlement spread westward.
Pop went from under 4m in 1790 to 76m in 1900 to 322m in 2016.
Led to improvements in communication – instant comms brought feeling of national identity.
SUPREME COURT
Decisions made by the SC between 1937 and 1970s further enhanced the power of the federal government through their interpretation of the implied powers of the constitution.
This is because the SC applied more expansive meaning to the powers allocated to Congress in the necessary and proper, common welfare and commerce clause.
However, the SC has been seen to be more limiting – NFIB v Sebelius (2012) – HRA under Obama could not be justified by commerce clause.
CONSTITUTIONAL AMENDMENTS
14th Am: used to directly prohibit states – invalidated segregation in schools in Brown v Board 1954 and used in Bush v Gore (2000).
16th Am: imposed income tax – allowed Presidents such as Truman and Johnson to launch economic programs such as Johnson’s Great Society.
Why did power shift back to the states?
LACK OF FED GOV SUCCESS
Federal government programs had not been successful; FDR’s New Deal,
Johnson’s Great Society.
Federal government failed to tackle social issues; gun crime, abortion.
DISTRUST
Growing distrust of Washington politicians after the Watergate scandal.
REPUBLICANS
A mainly Republican SC began to limit the scope of federal government power.
Frequent election of Republican presidents during this era, the election of a Republican controlled congress in 1994 and election of Republican state governors allowed to party to put its policies into effect.
What are the consequences of federalism?
POLITICAL
All elections are state based and run under state law – led to Bush v Gore 2000.
Arizona has experimented with online voting and Montana uses a postal ballot.
Political parties are decentralised and largely state based.
ECONOMIC
Huge federal grants go to states – Obama.
Complex tax system - income is by federal states and some state governments, property tax is by state governments, sales tax is to cities.
LEGAL
Variety in state laws – driving age is 16 in Idaho but 18 in Nevada and Oregon allows assisted suicide.
Can further enhance regionalism – more division.
How is the Constitution still up to date?
FEDERAL GOV CAN DEAL WITH MODERN DAY ISSUES WITH ITS INCREASED POWER
The necessary and proper clause has been interpreted appropriately for the modern day, allowing the federal government to effectively deal with modern day issues.
United States v. Comstock (2010) – held that it is necessary and proper for the federal government to require the sectioning of mentally ill individuals in federal custody.
The Commerce Clause has been interpreted appropriately for the modern day, allowing the federal government to effectively deal with modern day issues.
Gonzales v. Raich (2005) – held that Congress can criminalise the production of cannabis under the Commerce Clause.
Federal gov can respond quickly and effectively to national crises - has a large mandate to do this because it contains representatives who have been elected, giving their decisions legitimacy and authority.
CHECKS AND BALANCES ARE STILL EFFECTIVE
The Supreme Court can strike down legislation and Presidential actions.
Hamden v Rums field (2006): SC declared the military commissions set up by Bush to try members of Al Qaeda as unconstitutional.
Leg can withhold funding - Bush’s spending in Iraq limited in 2007.
President Trump vetoed bill in 2020 to terminate AF action I Iran that hadn’t been authorised by congress.
Helps to prevent corruption, which could help to increase the legitimacy and authority of government decisions.
STATES STILL HAVE INDEPENDENCE
There are still policy areas that are reserved to the states under the 10th Amendment.
United States v. Butler (1936) – held that agriculture was reserved to the states under the 10th Amendment.
The states now have less reliance on federal funds due to revenue sharing and block grants.
Omnibus Budget Reconciliation Act (1981) – merged 77 categorical grants into 9 block grants, which would allow states to decide how to spend federal funds.
Temporary Assistance for Needy Families (1997) – block grants for the states which gave them much greater freedom to determine welfare benefits.
Helps to reduce the nationalisation of policy, which can help policy to be more appropriate for specific local areas.
How is the constitution outdated?
TOO HARD TO AMEND
Amendments need a high level of widespread support in order to get the support of 2/3 of Congress and 3/4 of the States.
In 2011, Senator Bernie Sanders filed the Saving American Democracy Amendment, which would have overturned Citizens United v. FEC (2010), however it didn’t get through Congress.
School Prayer Amendment, proposed in April 2003, wanted to establish the right of schools to lead children in prayer, however it was defeated in Congress.
Makes it harder to remove outdated amendments, such as the 2nd Amendment.
Could reduce public confidence in the government, causing apathy and low turnout.
HOWEVER, judicial review can remove the need for them and there have been some.
CERTAIN RIGHTS ARE OUTDATED
Certain rights are not suitable for the modern day, however they are near impossible to remove due to entrenchment of rights.
The 2nd Amendment (1791), which protects the right to bear arms, is no longer necessary because the police can now protect citizens and this right causes unnecessary death and injury.
The 3rd Amendment (1791), which prohibits the forced quartering of soldiers during peacetime, is no longer necessary because soldiers no longer need to be quarters in citizens’ homes.
HOWEVER, a large nuber of people still want these rights protected – A poll in April 2012 found that 82% of Republicans and 55% of Democrats saw the NRA “in a positive light”.
ELECTORAL COLLEGE
Doesn’t work in modern day society.
How is the constitution flexible?
THERE HAVE BEEN AMENDMENTS
Amendments with widespread support will usually be successful.
Prohibition was introduced by the 18th Amendment (1920) and removed by the 21st Amendment (1933) due to its high level of support.
The 26th Amendment (1971), which reduced the voting aged from 21 to 18, was introduced relatively quickly due to high levels of student activism.
The need for widespread support reduces the chance of hasty decisions being made, therefore amendments should be good for the long term prospects of the US.
JUDICIAL REVIEW
The Bill of Rights has been interpreted differently to introduce new rights.
Roe v. Wade (1973) held that the 14th Amendment protected the right to an abortion, therefore there was no need to pass a constitutional amendment protecting this right.
Obergefell v. Hodges (2015) held that the 14th Amendment protected the right to same-sex marriage, therefore there was no need to pass a constitutional amendment protecting this right.
Helps to prevent tyranny of the majority and prevent infringements on the rights of the minority.
ENUERATED POWERS CAN BE INTERPRETED DIFFERENTLY
The necessary and proper clause and the commerce clause have been interpreted differently, allowing government to effectively deal with modern day issues.
Gonzales v. Raich (2005) – held that Congress can criminalise the production of cannabis under the Commerce Clause.
United States v. Comstock (2010) – held that it is necessary and proper for the federal government to require the sectioning of mentally ill individuals in federal custody.
Allows government to respond effectively to crises and keeps const. up to date.
How is the constitution rigid?
TOO HARD TO AMEND
Amendments need a high level of widespread support in order to get the support of 2/3 of Congress and 3/4 of the States.
In 2011, Senator Bernie Sanders filed the Saving American Democracy Amendment, which would have overturned Citizens United v. FEC (2010), however it didn’t get through Congress.
School Prayer Amendment, proposed in April 2003, wanted to establish the right of schools to lead children in prayer, however it was defeated in Congress.
Makes it harder to remove outdated amendments, such as the 2nd Amendment.
Could reduce public confidence in the government, causing apathy and low turnout.
STRICT CONSTRUCTIONISTS/RESTRAINT
However, strict constructionist and originalist judges are unwilling to interpret the constitution differently to introduce new rights.
Reluctant to strike down actions by the executive legislative branch. Reluctant to overturn judicial precedence - should defer to the other branches that are more legitimate
E.g. a woman’s right to abortion in Roe V. Wade – see limits put on that right but not to overturn the 1973 decision completely
Minnesota v. Carter (1998) – held that the 4th Amendment (1791), which protects against unreasonable searches and seizures, does not apply to short-term guests in a residency.
OUTDATED PROVISIONS REMAIN
Rigidity is shown by the fact that outdate provisions remain.
Electoral College.
Certain rights are not suitable for the modern day; however they are near impossible to remove due to entrenchment of rights.
The 2nd Amendment (1791), which protects the right to bear arms, is no longer necessary because the police can now protect citizens and this right causes unnecessary death and injury.
The 3rd Amendment (1791), which prohibits the forced quartering of soldiers during peacetime, is no longer necessary because soldiers no longer need to be quarters in citizens’ homes.
HOWEVER, a large nuber of people still want these rights protected – A poll in April 2012 found that 82% of Republicans and 55% of Democrats saw the NRA “in a positive light”.
What different types of federalism have there been?
DUAL FEDERALISM (1780s-1920s)
State govs exercised most power - The focus was on states’ rights.
Role of fed gov was limited due to matters concerning money, war and peace – this is why the presidents are not v well known e.g. James Polk
The fed and state govs were very protective of their powers.
The layers of responsibility were distinct – ‘layer cake fed’.
However, the federal government’s power was slightly increased during the period of Dual Federalism due to use of judicial review.
Gitlow v. New York (1925) – held that the 14th Amendment meant that the Bill of Rights now applied to the states, therefore New York’s Criminal Anarchy Law (1902) was unconstitutional because it restricted freedom of speech under the 1st Amendment.
COOPERATIVE FEDERALISM (1930s-1960s)
The era in which the federal and state governments cooperated to solve the problems facing US society from the 1930s – 1960s; poverty & health.
Associated with four Democratic presidents - Franklin Roosevelt, Harry Truman, John
Kennedy and Lyndon Johnson.
The role of federal government increased significantly.
The Social Security Act (1935) and other New Deal schemes granted money to the states for providing welfare aid, but this was accompanied by strict guidelines and standards via categorical grants, which gave the federal government power.
By the Clinton era, federal government was giving over $200 billion to the states.
‘Marble- cake federalism’.
NEW FEDERALISM (1980s-2000)
An era in which power was devolved to the states.
Associated with four Republican presidents; Richard Nixon, Gerald Ford, Ronald
Reagan, George Bush and partly adopted by Clinton in the 1990s.
United States v. Lopez (1995) – held that the federal government’s Gun-Free School Zones Act (1994) was unconstitutional because this went beyond Congress’s “Commerce Clause” powers.
There was also devolution of power to the state governments via revenue sharing, block grants and limits on unfunded mandates.
Temporary Assistance for Needy Families (1997) – block grants for the states which gave them much greater freedom to determine welfare benefits.
FEDERALISM UNDER BUSH (2000-2008)
Increased federal gov power.
Federal grants almost doubled from 1998 to 2008, growing from $234 billion to $461 billion.
No Child Left Behind (2001) – required schools to meet federal standards to receive federal funding.
Department of Homeland Security (est. 2002) – developed new federal standards for emergency preparedness, communications and response.
REAL ID Act (2005) – required states to change their drivers licences to meet new national standards.
President Bush intervened in the 2007-2008 economic crisis, such as by nationalising two huge mortgage companies and by bailing out the banks with $700 billion.
There were limitations on the states.
Gonzales v. Raich (2005) – held that Congress can criminalise the production of cannabis in the states via the “Commerce Clause”.
FEDERALISM UNDER OBAMA (2008-2016)
Increased federal gov power.
State Children’s Health Insurance Program (SCHIP) (2009) – expanded to include health insurance coverage for 4.1 million children via matching grants.
American Recovery and Reinvestment Act (2009) – Obama’s $787 billion economic stimulus.
Patient Protection and Affordable Care Act (2010) – Obamacare vastly increased federal power over healthcare, and by 2020 states would have to cover 90% of the costs.
National Federation of Independent Business v. Sebelius (2012) – upheld Obamacare using Congress’s power to collect taxes.
There were limitations on the states.
National Federation of Independent Business v. Sebelius (2012) – held that the federal government cannot threaten to withdraw all of a states’ funding if that state doesn’t follow federal regulations.
How doesn’t federalism work as the Founding Fathers intended?
CONSTITUTION INTERPRETED MORE BROADLY
The necessary and proper clause has been interpreted more broadly to give the federal government more power.
United States v. Comstock (2010) – held that it is necessary and proper for the federal government to require the sectioning of mentally ill individuals in federal custody.
The Commerce Clause has been interpreted more broadly to give the federal government more power.
Gonzales v. Raich (2005) – held that Congress can criminalise the production of cannabis under the Commerce Clause.
SUPREMECY CLAUSE
The Supremacy Clause establishes that the federal constitution and federal law take precedence over state constitutions and state laws, therefore state governments must follow federal laws.
Cooper v. Aaron (1958) – held that states had to follow Brown v Board of Education (1954) because it was a federal decision and federal law is supreme.
Nevada v. Hibbs (2003) – held that states can be sued for failing to obey the federal Family and Medical Leave Act (1993) because federal law is supreme.
In Arizona v Inter Tribal Council of Arizona (2013), the Supreme Court ruled that an Arizona law requiring citizens to provide proof of citizenship to register to vote in federal elections went against the National Voter Registration Act (1993),
Allows the federal government to stop infringements on rights in the states and to be stronger in response to crisis.
BUT, limited by 10th amendment.
STATES RELY ON FED GRANTS
The federal government’s power was greatly expanded by it being able to raise its own income tax, granted by the 16th Amendment.
The federal government now uses categorical grants to require states to implement federal regulations in return for funds.
National Minimum Drink Age Act (1984) – in order to get federal grants for highways, state governments had to comply with federal drinking age regulations.
No Child Left Behind (2001) – required schools to meet federal standards to receive federal funding.
Arguably goes against the Founding Fathers’ wishes for a weak federal government.
How does federalism work as the Founding Fathers intended?
THE STATES STILL HAVE POWER UNDER THE 10TH AMENDMENT
The federal government’s laws do not have supremacy over issues that have been reserved to the states under the 10th Amendment, therefore the states have retained control over these policy areas.
United States v. Butler (1936) – held that the Agriculture Adjustment Act (1933) was unconstitutional because agriculture was reserved to the states under the 10th Amendment.
New York v. United States (1992) – held that the federal requirement for states to assume liability for toxic waste generated within their borders was unconstitutional because it violated the 10th Amendment.
Helps to make politics more local, which could help to promote pluralist democracy and increase turnout.
THE FEDERAL GOV HAS BEEN LIMITED
The federal government’s actions have in some cases been held to exceed the necessary and proper clause and the commerce clause, so have been declared unconstitutional, which has reduced the federal government’s power.
United States v. Morrison (2000) – held that the federal government’s Violence Against Women Act (1994), which gave victims of gender-motivated violence the right to sue their attackers in federal court, was unconstitutional because it exceeded the Commerce Clause.
NFIB v Sebelius (2012) Obama couldn’t use commerce clause to support individual mandate in PPACA (2010).
Helps to prevent the federal government from infringing on rights.
STATES HAVE LESS RELIANCE ON FED FUNDS
The states now have less reliance on federal funds due to revenue sharing and block grants.
Revenue Sharing (1972-1986) – when Congress gave large amounts of federal funds to state governments with few conditions.
Omnibus Budget Reconciliation Act (1981) – merged 77 categorical grants into 9 block grants, which would allow states to decide how to spend federal funds.
Temporary Assistance for Needy Families (1997) – block grants for the states which gave them much greater freedom to determine welfare benefits.
There are some controls on federal power over funding.
National Federation of Independent Business v. Sebelius (2012) – held that the federal government cannot threaten to withdraw all of a states’ funding if that state doesn’t follow federal regulations.
Helps the states to be more autonomous, meaning they can implement policies that are appropriate for their specific electorate, which helps to promote representative democracy.
How has the power of the federal government increased since 1787?
NECESSARY AND PROPER CLAUSE
Wickard v. Filburn (1942) – the Supreme Court used the “necessary and proper” clause to justify federal agricultural regulations.
United States v. Comstock (2010) – held that it is necessary and proper for the federal government to require the sectioning of mentally ill individuals in federal custody.
HOWEVER, has been limited by SC – NFIB v Sebelius.
COMMERCE CLAUSE
Reno v. Condon (2000) – held that the federal government can prevent states from selling databases of personal information under the “Commerce Clause”.
Gonzales v. Raich (2005) – held that Congress can criminalise the production of cannabis under the Commerce Clause.
Could be going against the Founding Fathers’ wishes.
HOWEVER, has been interpreted more narrowly – US v Lopez.
INCOME TAX
The federal government’s power was greatly expanded by it being able to raise its own income tax.
The 16th Amendment (1913) gave the federal government the power to raise its own income tax, allowing Roosevelt to implement the New Deal.
The definition of Congress’s power to collect taxes has been interpreted more broadly to give the federal government a greater jurisdiction.
National Federation of Independent Business v. Sebelius (2012) – upheld Obamacare using Congress’s power to collect taxes.
14th AMENDMENT
guaranteed all citizens “equal protection of the laws.”
Brown v Board of Education (1954) – Separate but equal educational facilities for racial minorities is inherently unequal violating the Equal Protection Clause of the Fourteenth Amendment, which allowed Eisenhower to intervene at Little Rock (1957) and allowed Congress to pass the Civil Rights Act (1964).
Arguably the most legitimate method of increasing federal government power because it has a constitutional mandate.
HOWEVER, has been interpreted more narrowly.
United States v. Morrison (2000) – held that the federal government’s Violence Against Women Act (1994), which gave victims of gender-motivated violence the right to sue their attackers in federal court, was unconstitutional because it exceeded the federal government’s power under the 14th Amendment.
GRANTS
The federal government now uses categorical grants to require states to implement federal regulations in return for funds.
National Minimum Drink Age Act (1984) – in order to get federal grants for highways, state governments had to comply with federal drinking age regulations.
No Child Left Behind (2001) – required schools to meet federal standards to receive federal funding.
Arguably goes against the Founding Fathers’ wishes for a weak federal government.
