The Actual Constitution Flashcards
What five things does the constitution do?
Lay down the powers of office holders
Establish the procedures by which they are chosen
Establish the period for which they serve
Specify the relationship between branches of government
Establish citizens rights
(The rules of the political game)(establishes a country’s fundamental rules or basic law)
What are negative rights?
Rights that stop the Government doing something
E.g freedom of speech curtails a government from taking action against those that disagree with its policies
What are positive rights?
Rights that allow the govt to do something
They hold out the promise for increased security for the citizen by example guaranteeing a right to adequate health provision or a good standard of education
When were the articles of confederation written? What did this do
1781
After the war of independence against Britain, the 13 American colonies agreed upon the articles
This established a system of national government.
However the articles were weak, no executive branch and only very limited powers for congress
When was the constitutional convention that involved the founding fathers?
1787 in Philadelphia
They agreed on compromise that the national government would be much strengthened after the articles of confederation but states rights would also be protected
The national govt would be accountable to both the people as a whole and the states.
What enumerated powers are given to congress in section 8 of article 1 of the constitution?
To lay and collect taxes
Provide for the common defence and general welfare of the USA
Regulate commerce with foreign nations and among the several states
Declare war ( only happened 5 times)
SCOTUS also confirmed that the congress had powers to make all laws which shall be necessary and proper carrying into execution the foregoing powers
What states rights are put forward in the constitution?
Electoral college, individual states can decide method of election and extent of franchise
2 senators decided by state legislature
Promised in article IV that their territorial boundaries would not be changed without their consent
Constitution only amended if 3/4 of states agree
Bill of rights amendment 10
What is outlined in article 1?
Legislature is congress
What is outlined in article 2?
The executive is the president
What is outlined in article 3?
The judicial power is the Supreme Court
(Congress quickly added trial and apppeal courts to this)
The Supreme Court is supposed to be umpire of the constitution, implied in the supremacy clause of article 6
In article 3 the constitution says the SC power applied to all cases arising under this constitution. This is make explicit in the landmark ruling Marburg v Madison in 1803
What is outlined in article 4?
Federal- state and state-state relationships
What is outlined in article 5?
Amendment procedures
27 ever passed including bill of rights
What is outlined in article 6?
Miscellaneous provisions including the ‘supremacy clause’
What is outlined in article 7?
The ratification procedure of the constitution.
What court case established the power of judicial review?
Marbury v Madison 1803
What are the classic elastic clauses in the constitution?
The powers given to congress to ‘make all necessary and proper laws’
The responsibility give to congress to look after the ‘general welfare of the people’
What extra constitutional conventions exist?
Power of the filibuster, used to delay or block legislation
Primary election
Cabinet
Congressional committees
Power of judicial review
What court cases have initiated developments to the constitution?
Marbury v Madison
Fletcher v Peck
How can you compare the US constitution to the UK constitution?
UK is uncodified so in theory more flexible and perhaps more appropriate to a modern world
However, in reality the US constitution is just as flexible and has entrenchment of rights preventing tyrannical rule
What is fundamental law?
Fundamental law can be applied to the us constitution as it is a sovereign document and entrenched. It forms the fundamental laws for America
When have rights been denied to people in US history?
What happens to rights depends on the climate and events of the time, despite constitutional protection.
Denial of voting rights and civil rights to black Americans after the fourteenth and fifteenth amendments. Segregation and Jim Crow laws prevailed in the southern states ( literacy tests to vote ect)
Internment (imprisonment without trial) of Japanese Americans during WW2
The passage of the Patriot Act. This included anti terrorist measures such as wire tapping and electronic surveillance passed by congress after 9/11. This undermined rights but was not declared unconstitutional by SCOTUS.
The existence of Guantanamo Bay. Prisoners detained without habeas corpus rights or ‘due processes of law’ as a result of the SO called war on terror
Why is the UK constitution different to the US?
Different history
US constitution emerges after a revolutionary war of independence and the need to set up a new state
UK constitution evolves organically and gradual lay through the ages without major upheavals.
What is the difference between legal and political sovereignty?
Legal sovereignty relates to a defined geographical territory and refers to the unquestioned and ultimate authority of a state or assembly to make laws that regulate the activities of citizens living in that territory
Political sovereignty refers to the effectiveness of power exercised by sovereign bodies. In other words the extent to which power is constrained or expanded by the existence is treaty obligations, membership of international organisations and external and internal influences.
Explain sovereignty in the U.K.
Parliament is legally sovereign. It make make amend or appeal any law. (Upheld in Miller ruling 2017)
Statutes can not be struck down by courts as they have not got the power of judicial review. Laws passed by Parliament are by definition, constitutional.
It can be argued that political sovereignty really lies with the government due to majority party governance.
Devolved bodies are not legally sovereign as their power is from Parliament.
Being in the EU means that Parliament may not be politically sovereign as laws originate from EU. However legally, as the UK can leave it had legal sovereignty.
Edward Heath said joining the EU- pooling sovereignty. Some legal sovereignty lost but political influence increased, more political sovereignty.
Explain sovereignty in the US.
Legal sovereignty is found in the Us constitution and in the power of the people to amend it.
Due to the federal system. States also have legal sovereignty in areas reserved to the states in the Constitution.
FEDERAL laws take precedence over states laws if they are declared constitutional due to the ‘supremacy clause’ in the constitution.
States retain autonomy in that the govt can not amalgamate them or change their names or geographical territories. States can not secede from the Union.
POLITICAL SOVEREIGNTY
it’s difficult to establish where this lies.
Political sovereignty may ultimately lie with the Supreme Court as it has the power to determine the meaning of the constitution.
What are enumerated and unenumerated rights?
The rights set out and other assumed rights (9th amendment)
What is the reserved powers clause?
Amendment X states rights
What things does freedom of speech allow that are unpalatable
Westborough Baptist Church
Neo-nazis to march in Skogie, Illinois
What had been the precedent before the 22nd amendment?
It was an unspoken precedent to only do two terms until Franklin Roosevelt
Which amendment does the right to an abortion fall within?
14th
Right to privacy
Which amendment is referred to as the ‘elastic amendment’?
10th
Is the constitution to limit people or government?
GOVERNMENT
prohibition amendment was stupid and a whim
How many constitutions has France had in the time the USA has had theirs?
17
How long after the constitution was ratified did the bill of rights pass?
2 years
Why is the amendment process so hard?
To protect it from the whims of politicians
