Interpretations and debates around the constitution and federalism Flashcards
1
Q
Define federal encroachment
A
An increase in the power of the federal government at the expense of state governments
2
Q
When did federal encroachment begin?
A
In the cooperative federalism period
3
Q
Why can the new federalism era be seen as a failure?
A
Because the case that the federal government is encroaching on the reserved powers is still extremely compelling
4
Q
List the arguements in favour of the idea that the states retain their autonomy and sovereignty
A
- Laws vary across states
- Healthcare
- Electoral practises vary wildly
- Illegal immigration
- Handling national crises
- SC rulings support state over federal government
5
Q
Give two examples of laws varying across states
A
- The death penalty is legal in 29 states but abolished in 21 states
- Taxation can be set at the state level alongside federal taxes. 7 states have 0% taxation while California has 13% taxation
6
Q
How does healthcare favour states?
A
States have power over the provision of medical insurance following Obamacare
7
Q
Explain electoral practises vary
A
Article I allows states to run their own elections and there is a wide variety of election processes. State governments can set their own district boundaries
8
Q
How does the way illegal immigration is dealt with favour the states?
A
In some states their are sanctuary cities where state law prohibits local law enforcement agencies from helping federal government authorities from identifying illegal immigrants unless they have committed a serious crime. In 2018, the Department of Justice tried to sue California over its sanctuary city laws, but the ruling went against the Department of Justice, reinforcing the autonomy of the state
9
Q
How did COVID demonstrate the importance of the 10th amendment?
A
Like in any other national crisis, elected governors were allowed to react in whatever way they saw fit. This is reflected by the fact that 32 states declared their own state of emergency before Trump declared the national state of emergency
10
Q
Explain how the lockdowns showed state autonomy
A
- Seven states didn’t issue lockdown orders until this was imposed by the federal government
- Trump wanted to end lockdowns as quickly as possible but state governors had the final say on this, as well as other practicalities like the wearing of face masks
11
Q
Explain how the 2016 US vs Texas case was a victory for the states
A
The SC struck down Obama’s executive order to implement his immigration reform programmes, ruling it to be unconstitutional due to its cost for the states
12
Q
Explain how the 2012 Federation of Independent Business vs Sebelius case was a victory for the states
A
Obamacare stated that those would be covered by an expansion of the federally funded medicaid programme. States has to participate in this or lose their funding for medicaid. Many states argued under the case that this amounted to coercion rather than persuasion. The SC agreed and struck down this part of Obamacare
13
Q
List the arguements that the federal government is challenging state authority
A
- Taxation and federal financing
- Healthcare
- Federal government encroachment on state issues
- Federal government encroachment on state response to national crises
- SC rulings favouring F over S
14
Q
Explain how taxation and federal finances challenge state autonomy
A
State citizens have to pay federal income tax and the states themselves rely on support from the federal government when finances run low in response to unexpected circumstances
15
Q
Give some examples of when the states have had to financially rely on the federal government during crises
A
- The F gave $120 billion of aid following Hurricane Kutrina in 2005
- Congress passed the American Recovery and Reinvestment Act following the great recession, which provided $787 billion of stimulus
- Despite state governors having some autonomy over how they responded to COVID, they will still dependent on the economic relief package signed in March 2020
16
Q
Why does healthcare provision limit state autonomy?
A
Because it is heavily reliant on F funding
17
Q
How did Obamacare threaten federalism?
A
The federal government provided most of the financing for subsidised coverage
18
Q
Why was the 2012 National Federation of Business vs Sebelius case not that much of a victory for the states in practise?
A
Because even though it ruled that states could not be compelled to expand medicaid, all but 14 states have now expanded the programme and medicaid enrolment increased by 34% between 2013 and 2019
19
Q
How has the federal government encroached on education?
A
- The 2002 No Child Left Behind Policy was a classic example of cooperative federalism, with the new law mandating that states test children annually
20
Q
Explain how the F has encroached on national defence?
A
The department of homeland security was created in response to 9/11. It directed states and cities over how to respond terrorist and security threats. This federal dominant approach continued under Trump and Obama
21
Q
How can Trump’s border wall be seen as an example of the federal government dominating at the expense of the states?
A
Because it limited the states ability to deal with immigration
22
Q
Which agency do state governors rely on during times of national crisis?
A
Federal Emergency Management Agency
23
Q
How did the F take an active role in helping deal with COVID?
A
The 2020 CARES Act was a $2.2 trillion economic stimulus package which attempted to combat the public health and economic damage caused by COVID
24
Q
What is the state taking on a greater role in dealing with national crises an example of?
A
Cooperative federalism
25
How was the 2012 National Federation of Independent Business vs Sebelius ruling limited in upholding federalism?
Because it upheld the rest of Obamacare, giving the F considerable control over healthcare
26
Make the case that the US is still a federal nation
- All state members have federal income tax and the states financial rely upon the federal government
- Healthcare provision is heavily dependent on federal funding with the majority of states providing medicaid
- The federal government has mandated parts of education policy
- The department for homeland security coordinates responses to threats to the nation
- States depend on the federal government during times of national crisis. FEMA exists because the individual states can't do what the federal government can do
- The SC has made rulings in favour of the federal government over the states
27
Make the case that the US is no longer a federal nation
- Laws vary significantly across the states, like with the death penalty, state taxes and the legal status of marijuana
- States control the provision of medical insurance
- Electoral practises vary from state to state
- Some states use sanctuary cities to prohibit local law officers from helping federal immigration officials
- During national disasters like COVID, state governors are allowed to respond in whatever way they see fit for the state
- The SC has made rulings in favour of the states over the federal government, like with the 2016 US vs Texas case
28
What attitude did the founding fathers have to democracy?
They feared majority rule riding roughshod over the minority - the natural ruling class to which they belonged. Founding Fathers like Madison and Washington were enslavers, showing that their attitude to democracy was culturally relative
29
What has happened to the constitution in terms of democracy?
It has evolved to become more democratic
30
List the ways in which democracy was limited in the original constitution
- Only the house was to be elected directly by the people, with the electorate limited to white property owning males over the age of 25
- Slaves counted as 3/5 of a person when counting population sizes to determine the allocation of congressmen to the states
- The senate was nominated by state legislatures rather than being directly elected. This meant conisderable influence was invested in unelected senators
- The president was elected by an electoral college whose members were nominated by state legislatures
- The constitution allows each state to draw up its own congressional boundaries of each district to give it an electoral advantage (gerrymandering)
31
Describe the ways in which the constitution has evolved to leave behind some of its more undemocratic elements
- The electorate has expanded and the property qualification has been dropped, with the franchise being expanded to women and racial minorities
- The 13th amendment abolished slavery and the 14th amendment gave formerly enslaved people full citizenship. The 1965 Voting Rights Act outlawed discrimination and literary clauses in elections, meaning black americans could vote
- The 17th amendment meant the direct election of senators following discontent
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32
Why is debating the strength of the constitution not straightforward?
Because it depends on your political persuasion
33
How are conservatives likely to look at the constitution?
In a strict or literal fashion - they tend to look for what the founding fathers actually meant when framing the constitution. They tend to favour states rights over the federal government
34
How are liberals likely to look at the constitution?
They interpret it in a loose fashion - reading elements into the constitution that the founding fathers would have approved of. They tend to favour the power of the federal government over states rights
35
Make the case that the constitution being difficult to amend is a strength
The amendment process is clear and allows the constitution to be changed. The difficulty of the amendment process prevents changes being made on a whim. The constitution provided clarity on citizens rights and allows the SC to enforce this. Even though people point towards apparent outdated elements, they exist because they have lacked the support to be changed
36
Make the case that the constitution being difficult to amend is a weakness
The need for supermajorities and congress and the states to agree makes amendments nearly impossible. The 0.2% success rate shows how a tyranny of the minority can frustrate the democratic will of the majority. Thomas Jefferson said that each generation should be able to update the constitution every 20 years and pass it on to the next generation - this has not been the case
37
Make the case that the vagueness of the constitution is a strength
The SC can make interpretative amendments to ensure that the constitution remains contemporarily relevant
38
List three interpretative amendments that have allowed the constitution to remain relevant
- The 1973 Roe vs Wade case announced that the 14 amendment right to liberty included the right to have an abortion
- The 2015 Oberfegell vs Hodges judged that the 14th amendment included the right of same sex couples to marry
- The 2018 Carpenter vs US case ruled that accessing someone's mobile phone location was equivalent to a 4th amendment search and required a warrant
39
Make the case that the vagueness of the constitution is a weakness
It can be argued that it has allowed for a broader interpretation of the constitution than the founding fathers envisaged. They think that the founding fathers would not have supported abortion or same sex marriage so a formal amendment is required here. The vagueness of article II has allowed the president to dominate government, especially in terms of foreign policy
40
Make the case that the protection of rights is a strength of the US constitution
The BoR and 14th amendment give legal protection to citizens based on the concept of individual freedom. This protects liberty and freedom from government control. While the original constitution was not perfect at protecting rights, it has been updated to improve rights protection
41
List the 4 main methods for updating the constitution
- Constitutional amendment
- Presidential leadership
- Legislation
- SC decisions
42
Give two examples of a constitutional amendment being used to improve rights
- The 15th amendment extended voting rights to all races
- The 24th amendment removed the poll tax
43
Why was the 15th amendment a failure
Because the southern states introduced poll taxes and literary tests for voters, meaning minority races were still disenfranchised
44
How did the 1954 Brown vs Department of Education of Topeka help rights?
It declared segregated schools to be unconstitutional
45
Give two examples of presidential leadership aiding rights
- Eisenhower sent government troops to Little Rock to enforce desegregation in 1957
- Kennedy created the Equal Opportunity Commission in 1961
46
Give an example of legislation aiding rights
The 1965 Voting Rights Act ended literacy tests for voters
47
How did the Shelby County vs Holder case damage rights?
Because it removed section 4 of the Voting Rights Act, which prevented areas that had previously held discriminatory voting practises from introducing new practises that could be discriminatory
48
What did Texas do days after the Shelby County vs Holder ruling?
Brought in a new previously prohibited voter ID law
49
What did the director of the voting rights campaign say about the Shelby case in 2019?
That it opened the floodgate to voter suppression, seeing laws that discriminate against people of colour across the country
50
Make the case that the separation of powers is a strength of the constitution
The system of checks and balances and the short election cycle means that representatives must act in the best interests of the people. The overlap between the executive and legislature and the fact that there are two houses of congress necessitates bipartisanship, especially during times of divided government
51
Make the case that the separation of powers is a weakness of the constitution
The growth of the federal government at the expense of the states and the power the president wields over foreign policy is not what the president would have envisaged. The founding fathers did not envisage the party polarisation that exists today, meaning that the strict separation of powers in the constitution has led to government shutdowns when budgets cannot be agreed upon. Times of united government mean that the president won't be sufficiently scrutinised
52
Give a statistic to indicate how the separation of powers has made US government less effective?
6-7% of bills passed in the 1980s, but party polarisation mean that this has now dropped to 2-3%
53
Make the case that US federalism is effective?
- Each state has its own fully working government with three branches and can legislate on a wide variety of matters
- States have the power to ratify constitutional amendments, and so have the power to change the foundational document upon which all US law is based
- Protections rights and taxes differ from state to state
54
Give an example of a state that does not have a state tax
Oregon
55
Make the case that US federalism is not effective
- The powers given to the federal government vs the states is the vaguest area of the constitution and the powers of the federal government have expanded significantly over time
- Most states do not have year round legislatures, so do not have the ability to create law year round, which congress does
- Congress can issue mandates that state governments have to follow
56
What kind of things were set up during the dual federalism era?
- New executive departments that had power over specific things - like defence and transportation
- Grants with specific purposes were increased, which specified what money had to be spent on
57
Who has mostly been responsible for the new federalism movement?
R presidents
58
What has been created in support of new federalism?
Block grants are given to states and have no designated purpose - meaning states can do what they wish with them
59
Describe federalism under Obama
- Under him the power of the federal government increased
- Healthcare is one of the most important examples of this, changing the way people purchased health insurance and mandating that all individuals bought health insurance
- Previously lots of healthcare policy was left to individual states
- States were allowed to choose their own policy directions, such as the legalisation of cannabis in some states, but only when this suited the aims of the Obama administration
60
What is the name for powers exclusive to the states?
Reserved powers
61
Give some examples of reserved powers
- States have the reserved right to issue licenses for marriages
- They have the exclusive power to ratify amendments to the constitution
- They have the exclusive power to conduct elections
- They tend to have more power over the day-to-day lives of their residents
62
Give some examples of the exclusive powers held by the federal government
- Printing money
- Declaring war
-
63
How has the federal government become more powerful?
The federal government has implied powers, granted by the necessary and proper clause in article I, section 8 of the constitution. The federal government can choose how much power it has over the states. This power increased from the 1920s and 1930s onwards
64
What is the name for powers that are shared by the federal and state governments?
Concurrent powers
65
Give an example of the concurrent powers
Both the federal government and the states have the power to levy taxes
66
What is the benefit of the constitution creating a system of representative government?
It puts power into the hands of the people, making sure government is done with the consent of those below
67
What is the benefit of the constitution containing a system of checks and balances?
It limits the amount of power that any one person or group can have in US government
68
What is the downside?
It slows down the process of law making if there is divided government
69
Give an example of Trump being frustrated by checks and balances
The judiciary was able to briefly stop his travel ban in 2017
70
How does the constitution enshrine democratic ideals and representation?
It enshrines ideas of democracy and individual liberty as being important for the nation and the individuals living there. The constitution and its amendments set out the rights and freedoms of individuals, and has been expanded to allow more people to be represented in government. Because the constitution is entrenched these fundamental ideas cannot be changed
71
How does judicial review aid democracy?
Because it allows the SC to limit the actions of the executive and legislature
72
How does judicial review hinder democracy?
Because it is not mentioned in the constitution, so unelected SC justices can decide how they go about doing it
73
What is the benefit of the constitution allowing for regular elections?
It allows the American public to have control over their government
74
What does the constitution say must be used to elect the president?
An electoral college
75
What is the benefit of the electoral college system?
It gives different numbers of electoral college votes to each state and guarantees that smaller states have power in the election
76
What is the downside of the electoral college system?
The number of electoral college votes for each state is not proportional to the present day population. This means smaller states get a much larger say in presidential elections - smaller states like Wyoming have fewer people per electoral college vote than larger states like California. This means that votes are not of equal value, which is undemocratic
77
State the frequency of elections for federal government positions?
The House is elected every two years, the presidency is selected every 4 years and senators are elected every 6 years
78
How is this a benefit?
Because it guarantees a regular transfer of power, which is important for democracy
79
What did these regular elections mean in 2018?
In 2018 many people were unhappy with the R party, and so the Ds won a majority in the House
80
How is the vagueness of the constitution an advantage?
It allows the ideas to be interpreted and changed according to the needs of the present day.
81
Give an example of this
Under the necessary and proper clause, the federal government can make laws they believe are important for the continued proper running of the federal government, such as healthcare and welfare bills
82
What is the downside to the vagueness of the constitution?
Some lawmakers and judges wish to follow the constitution as it is written, which may limit rights for people who were not represented by the original constitution, like women and LGBTQ+ people
83
How have amendments to the constitution enhanced democracy?
The 19th amendment increased the amount of people who could vote. This has made the US more democratic, and the results of the election are more representative of the population
84
How does the SC aid democracy?
The SC and the judicial system have an important part to play in maintaining checks and balances on the executive and legislature
85
How does the SC hinder democracy?
SCD nominations are politicised, so the justices on the court are not always neutral and may make political decisions that impact groups in the US
86
Give an example of this
Trump said he wanted to appoint justices that did not support the decision made in Roe vs Wade, which allowed women to have abortions legally
87
List the ways in which the constitution aids democracy
- The amendment process means that any changes have to take place with consent from democratically elected representatives and state governments
- The separation of powers limits the individual power of any one person or group to prevent tyranny and despotism
- Frequent elections mean that there can be regular transfer of power and regular opportunities for people to cast their vote
- The constitution enshrines democratic ideals and was the first of its kind to do this
88
List the ways in which the constitution hinders democracy
- The electoral college doesn't give equal representation to all voters
- The vagueness of the constitution allows the executive and legislature to make laws which haven't been consented on by the public
- The constitution doesn't account for other factors in the decision making process, such as lobbyists, and doesn't account for difficulties of campaign finance
- The amendment process means a small group of states can block the will of the majority of states
89
How do laws in states suggest that the US remains federal?
- States can act as labs of democracy and policy, by testing out new policies, democratic processes and regulations, which can then be expanded to the rest of the nation
- States have a high degree of control over their lawmaking and the actions of their citizens
90
Give an example of policy being tested in some states before being expanded out to the rest of the nation
Abortion restrictions in some states have been upheld as constitutional, and so similar laws have been put in place in other states
91
Give an example of states having a high degree of control over their lawmaking
Cannabis is now legal for recreational use in 9 states and Washington DC
92
How does social policy suggest that the US remains a federal nation?
States still have high levels of control over social policy
93
Give an example of this
Despite continued effort, there is no standardised curriculum or assessment criteria for education
94
How does the SC suggest that the US remains a federal nation?`
Because some of its rulings have supported the states
95
How does voting suggest that the US remains a federal nation?`
Citizens get a degree of control over the policies of their states, which can tailor the policies of each state to the desires of its citizens
96
Give an example of this
At elections, ballot measures are put up for citizens to vote on, such as raising the minimum wage
97
How does the constitution suggest that the US remains a federal nation?
The constitution still guarantees federal processes will take place in America, and means that the states have rights - because of the 10th amendment
98
How do state governments suggest that the US remains a federal nation?`
All states have their own governments and constitutions which continue to operate independently from the federal government
99
How does the constitution suggest that the US does not remain a federal nation?
- The commerce clause of the constitution gives congress the enumerated power to 'regulate commerce with foreign nations, and among the several states, and with the Indian Tribes
- The commerce clause is used to make certain drugs illegal at the federal level
- Congress used the commerce clause to argue it was legal to mandate that all citizens purchase health insurance
- The constitution gives congress the power to enact all 'necessary and proper' laws, giving it powers beyond the scope of the constitution. This can limit the ability of the states to make their own laws
100
How do federal grants suggest that the US does not remain a federal nation?
The federal government can issue categorical grants which go to a specific purpose, restricting the states' ability to make policy
101
How does the SC suggest that the US does not remain a federal nation?
More cases have been submitted to the SC rather than state SCs and federal courts
102
How do federal departments suggest that the US does not remain a federal nation?
The Us federal government has increased the departments and posts in the cabinet that there are - so the federal government has more power over different aspects of life that would have been previously left to the states
103
Give an example of this
The Department of Homeland Security was created in 2002 and the Department for Education was created in 1979
104
