ETVT that the constitution is fit for purpose (30) Flashcards
Amendment process is
The amendment process is a two-stage process laid out and entrenched in article V of the constitution, stage 1 is the proposal and stage 2 is the ratification, they can be proposed by congress with a 2/3 majority in both houses, and then can be ratified by ¾ of state legislatures or ¾ of the states at constitutional conventions.
The amendment process protects key features of the constitution, separation of powers, checks and balance, bipartisanship and federalism. These ideas are essentially immune from amendment.
President Trump for example described the checks and balances of the constitution as ‘archaic’ when he failed to govern as he wished, separation of powers and checks and balances were designed to limit the power of the president and could not be changed.
Upholds federalism, the 10th amendment of the constitution makes it clear that the rights of the states to have reserved powers as opposed to the federal government and any power not explicitly granted to the federal government in the constitution Is reserved to the states.
A amendment would have to be passed by 38 states, almost impossible to remove federalism, very good protection.
Amendments are fundamentally very consequential actions, supermajorities therefore require significant consensus, the USA is geographically, culturally and politically diverse, whilst liberals and democrats may support a 2nd amendment change, a YouGov poll found that in 2018 only 1/5 of Americans supported this.
Amendment process isnt
The amendment process is very difficult to achieve, meaning there are many outdated provisions in the constitution and it is difficult to incorporate new ideas.
Of the 12,000 amendments proposed only 33 have gone to the states for ratification and 27 have made it to the constitution itself.
Electoral college, the electoral college has elected two presidents who lost the popular vote, George W Bush in 2000 and Donald Trump in 2016, the electoral college was designed to safeguard popular democracy, there have been several attempts to amend the electoral college system.
Modern democracy is based on the concept of majoritarian democracy and supermajorities required to amend the constitution are therefore undemocratic, proposed amendments such as the flag amendment for example have received over a 50% vote in congress but fell short of the required super majority.
Currently 13 states can block a amendment to the US constitution, the equal rights amendment 1972 was passed by congress, but fell short receiving enough state support, 13 states and just 24% of the population rejected the amendment. TYRANNY OF THE MAJORITY
Protection of rights is good
The Bill of rights and the 14th amendment gives very effective rights protections to people, slavery was legal and there were widespread sodomy laws at the time of righting and therefore it could not have been representative of modern democracy.
1st amendment protects free speech, case examples include Snyder v Phelps 2011
The vagueness of the constitution allows rights to evolve without a formal amendment, this ensures the constitution remains relevant today.
In Roe v Wade 1973 the court enounced that the 14th amendment right to ‘liberty’ included the women’s right to terminate her pregnancy and ‘right to privacy’ protects her choice to have a abortion.
This allows for the court to use a living constitution approach to make sure a wide range of rights are protected.
In Obergefell v Hodges 2015 the court ruled that the 14th amendment guarantees same sex couples the right to marriage due to the ‘equal protection clause’ even though there was no specific mention of this in the constitution.
In Carpenter v US (2018) the court judged that acquiring cell phone location data amounts to a 14th amendment search and requires a warrant.
Poor protection of rights
While much progress has been made in establishing the democratic rights of minority groups there is still significant lack of rights protection that the constitution fails to protect.
Shelby Counter v Holder 2013 struck down section 4 of the VRA 1964 which made states get preclearance from the federal government, this would ensure the state did not pass restrictions that affected racial minority voting negatively.
As a result, Texas introduced new voter ID laws that previously would have been blocked just days after the ruling.
The vagueness of the constitution has allowed for much broader interpretation of the text then envisioned by the founding fathers, this encourages a living constitution approach which places too much power in the hands of unelected and unaccountable judiciary.
Consistent creation of new rights and influencing policy, legislating from the bench.
Dobbs v Jackson 2022
Obergefell v Hodges 2015
Citizens United v FEC 2010
Make decisions when it suits them, Scalia argued in US v Windsor 2013, removing DOMA was wrong as they shouldn’t remove democratically elected legislation, Shelby County v Holder 2013 he supported striking a key provision in the Voting rights act 1964.
Justice Scalia argued that in US v Lopez 1994 there was a too broad and modern reading of the commerce clause, to argue congress could ban the possession of handguns near schools, however in Gonzales v Raich 2004 he used a much loser interpretation of the commerce clause to argue congress could ban the use of marijuana.
Seperation of powers and checks and balances is effective
One of the most important aspects of the constitution is that it creates government of separated institutions sharing powers and it also limits the power of the federal government over the states.
Checks and balances between the three branches of government means that each branch does not become too powerful and they are forced to work in the interests of the people they represent.
For example the Judiciary can check the executive and congress from exceeding their legislative powers and breaching the constitution. EXAMPLE – NRLB v Canning 2011
The judiciary is prevented from coming too powerful, impeachment from congress and appointments from the president. EXAMPLE OF BOTH.
Executive stops the legislative from becoming too powerful, negotiating treaties and veto power, plus power of SCOTUS.
States power is protected through SOCTUS and the constitutional framework
Seperation of powers/checks and balances isnt effective
There has been growth of federal power at the expense of the states. SEE ESSAY PLANS ABOVE.
Furthermore the framers did not Invision polarisation and hyper partisanship in the 21st century as we see today, gridlock involving government shutdowns is common.
2018 government shutdown was the longest in history, it took place when the 116th congress and president trump could not agree on a appropriations bill to fund the federal government for the 2019 fiscal year.
6% of bills proposed in congress became law between 1980-1990 but between 2010-2020 this number was as low as 2%.
Merrick Garland nomination is a example of growing ineffectiveness of checks and balance.
