Significance Of Constitutional Principles Flashcards
What are the key principles of the constitution?
-vagueness + silence
-need for a referee
-game of gridlock
-elections
What is vagueness + silence?
-certain provisions not clearly defined or are open to interpretation
-ambiguous in rights + responsibilities
What re the strengths of vagueness + silence?
-allowed constitution to evolve + develop over centuries - interpreted in way that fits modern world
-term ‘general welfare’ or ‘necessary + proper’ clause (elastic clause) interpreted differently today when first drawn up
What is an example of this?
-immigration act 1924 reflected racial bias banning entry of all Asian people to USA
-but 1965 congress voting rights act that forbade racial discrimination in voting
-shifts in law reflect changing perspectives + values
What are the weaknesses of the vagueness c silence of the constitution?
-by saying nothing on slavery in original doc - seeds for sectional divide were sown resulting in civil war 1860s - slavery banned 1865
What is another weakness of the constitution being vague + silent?
–failure consider democratic principles in original doc meant constitution not necessarily enlightened + visionary
-decades of struggle + several amendments like 19th amendment 1920 enfranchised women for US become democratic
How is the vagueness + silence frustrating?
-ambiguity is frustrating
-e.g. gun rights — 2nd amendment ‘right bear arms’ but prefixed by ‘well regulated militia, being necessary for security of state’
-1780s ‘arms’ meant single shot muskets not automatic weapons
How else is the constitution ambiguous?
-initiating military action
-constitution gives congress power declare war but pres commander in chief which is power deploy troops
-but not pres usually order military action + then seek approval from congress e.g. secret bombing misconstrued on Laos Vietnam war 1955-75
What does the need for a referee mean?
-should be an impartial authority to interpret + enforce constitution
-important as constitution subject to different interpretations
What are the strengths of the need for a referee?
-judicial review grants SC power of interpreting constitution
-also declaring laws or executive actions as either lawful or unlawful
What is the weakness of the need for a referee?
-judicial review not specifically mentioned but is from precedent in 1803 in case of Marbury v Madison - gave themselves more power of judicial review than should’ve
-raises doubts + uncertainty over sovereignty
-Hughes 1907 ‘we are under a constitution, but the constitution is what judges say it is’
What has judicial revue ultimately led to?
-politicisation of judiciary + contentious issues such as abortion, gay marriage which are decided by SC
-but decisions by judges not set e.g Brown v Board of Education of Topeka 1954
What was the Brown v Board of Education of Topeka in 1954?
-SC decision declared racial segregation in public schools unconstitutional
-challenged ‘separate but equal’ doctrine that justified racial segregation from Plessy v Ferguson
What is the game of gridlock?
-constitution designed promote cooperation + compromise between branches e.g. congress + pres, + senate + house
-stops one branch dominating + hold all power but is based on mutual agreement
-senate meant to calm the passion + populism of the house
But what is the reality of this, regarding the game of gridlock?
-reality is competition + deadlock between branches
-e.g. the budget proposed by pres + submitted for approval by Congress
-sometimes led to standoff + gov shutdown occur
