The constitution Flashcards
Nature of the US constitution
- Codified (written, 1787 and ensured separation of 3 powers)
- Vagueness (allows the constitution to evolve without any formal amendment)
- Entrenched (Constitution is difficult to amend due to being protected by law - Article V)
Which articles lay out the division of powers ?
- Article 1 - Est congress as the legislative (powers such as declare war and coin money)
- Article 2 - Singular power of the executive + all power in the hands of a President who was chosen by the Electoral College
- Article 3 - Established the Supreme Court
Supremacy clause
- Portion of Article VI which states that the constitution, treaties and federal laws should be the supreme law of the land
What are enumerated powers ?
- Powers delegated to the federal government under the constitution (largely in the first three articles)
What are implied powers ?
- Powers of the federal government that the constitution doesn’t explicitly mention but are implied
What is the elastic clause ?
- Article 1 section 8
- Empowers congress to make all laws necessary and proper to carry out federal government duties
- McCulloch v Maryland (1819) where it was ruled congress had the power to create a national bank
Examples of implied powers for the Judiciary
- Judicial review (SC can declare acts of congress, actions of the executive or actions of state governments as unconstitutional)
Examples of Congress’s enumerated powers
- Legislation : Executive powers to legislate for the country
- Economic : Est currency and coin, weights and measure and tax and duty collection
- Defence : Declaration of war
- Judicial/constitutional : amendments + est subordinate courts
Examples of congress’s implied powers
- Economic : levy taxes for the defence of the USA + interstate commerce clause
- Defence : power to draft citizens
Enumerated powers of the president
- Executive : Grants pardons + nominates cabinet, ambassadors and judges
- Defence : commander in chief
- Legislation : Proposes measures to congress and vetoes legislation
Implied powers of the president
- commander in chief of the Air force (didn’t exist at the time)
Enumerated powers of the judiciary
- Rule on cases arsing under the constitution
What are reserved powers ?
- Ones that aren’t delegated to the federal government but are reserved to the states or people alone eg age to drive, marriage laws and drinking age
Concurrent powers
- Powers possessed by the state and federal governments
- Eg collecting taxes, building roads and maintaining courts
How many amendments have ever been made ?
- 27 (first ten form the bill of rights which was ratified in 1791)
What does entrenchment mean ?
- Legal safeguards to make it more difficult to amend or abolish it
- Means it is difficult to make amendments
What is the amendment process ?
- 2 stage process requiring super majorities
- stage 1 : proposal (congress or a national constitutional convention called by congress at the request of two-thirds of the state legislators)
- Stage 2 : ratification (3/4 of the states legislators or by state constitutional conventions in 3/4 of states)
Where have all constitutional amendments been proposed so far ?
- Congress
Has a national convention ever been called and how close have they been ?
- Never
- 1992 : 32 state legislators petitioned for a balanced budget amendment but this was 2 states short from 2/3
When was the last amendment ?
- 1992
What are the first ten amendments ?
- Freedom of religion, speech and press
- Right to bear arms
- No quartering troops in private homes
- Unreasonable searches and seizures prohibited
- Rights of accused persons
- Right to trial
- common law suits
- Cruel and unusual punishments prohibited
- Unenumerated rights protected
10 : Undelegated powers reserved to the states or people
What amendment gave women the vote ?
- 19th (1920)
What did the 13-15th amendments do ?
- Ended slavery and guaranteed civil rights
What are the five significant reasons that the constitution has been so rarely amended ?
- Founding Fathers created a deliberately difficult process and didn’t want to change it on the whim of fashion
- Structural changes to congress and party polarisation have made passing amendments harder in the modern era
- Vagueness of the constitution has allowed it to evolve without formal amendment
- SC power of judicial review
- Americans are cautious about tampering with the constitution
Founding Fathers created a deliberately difficult process and didn’t want to change it on the whim of fashion (explanation)
- The need for congress and states to agree and supermajorities make the amendment process difficult
- Prevented any frivolous amendments (only example if the 18th amendment which prohibited the sale, transport and manufacture of alcohol which was repealed by the 21st amendment)
Structural changes to congress and party polarisation have made passing amendments harder in the modern era (explanation)
- The first congress was very different from today eg 65 congressmen and 26 senators compared to 435 members of the house and 100 senate members
- Means that more people are needed to agree for a proposed amendment
- The two main parties are polarised on most issues
Vagueness of the constitution has allowed it to evolve without formal amendment
- Congress’s power to provide for the common defence and general welfare of the US
SC power of judicial review (explanation)
- The judiciary can interpret the constitution and therefore change in the meaning of words written two centuries ago eg can state what the eighth amendment means today
Americans are cautious about tampering with the constitution (explanation)
- They hold their constitution to high esteem and have been cautious about tampering with it
advantages of the amendment process :
- Protects the constitution
- protects states and upholds federalism
- requires broad support
- Prevents ill thought amendments
disadvantages of the amendment process :
- Difficult to amend outdated provisions or to incorporate new ideas
- Goes agains concept of a majoritarian democracy
- Enhances the power of the SC to make interpretive amendments
- States with small populations have too much influence
- Mistake are still made
Examples of the advantages of the amendment process (protection of the constitution and federalism)
- Trump described the Checks and balances as ‘archaic’ suggesting they were working as they limited the power of the President
- 10th amendment makes it clear of the states reserved powers
Examples of the advantages of the amendment process (requires broad support and prevents ill thought out amendments)
- Liberals want to repeal the second amendment (right to bear arms) but 2018 poll found only 20% of Americans supported this
- Passing the 18th amendment is the only example since 1788 that critics can sight
Examples of disadvantages of the amendment process (outdated and goes against a majoritarian democracy)
- The electoral college has elected 2 presidents in the east 20 years who didn’t have the popular vote (originally designed as a safeguard against popular democracy)
- An equal rights amendment still hasn’t been made (failed to get the required number of states by 1982)
- 1998-2018 = 134 attempts to pass a balanced budget amendment
Example of tyranny of the minority (amendment process)
- To block an amendment only 13/50 states have to oppose it
- Eg flag protection amendment received over 50% in congress but fell short of the super majority
- Equal rights amendment failed to pass as effectively 24% of the US population prevented and amendment that the majority wanted
What are key features of the US constitution (4)
- Separation of powers
- checks and balances
- bipartisanship
- federalism
How can it be argued there is separation of powers ?
- 2020, senator Kamala Harris was elected VP so had to resign from senate
- Based on Montesquieu
Why is the term separation of powers misleading ?
- The institutions rather than the powers are separate
Exception to the rule of separation of powers
- The VP is the president of senate and can cast a vote in a tie eg Pence cast 13 tie-breaking votes
- The presidents power of pardon is a judicial rather than executive power
What are checks and balances ?
- Each branch of federal government has partial control over the other branches
What checks can the President do ?
- Check congress by vetoing a bill passed
- Check federal courts by nominating judges and the power of pardon
What checks can congress do ?
- President : Amend/delay/reject presidential legislative proposals, override a veto, power of the purse, refuse to approve presidential appointments (senate only), impeach the president
- Federal court : Propose constitutional amendments to overturn a judicial decision + senate can refuse to approve a person nominated to federal courts
What checks can the judiciary have ?
- Declare law unconstitutional (check congress)
- Can declare the actions of a president as unconstitutional
What is bipartisanship ?
Close cooperation between 2 major parties to achieve desired political goals eg 2002 education reforms
Divided government
- Presidency is controlled by one party and one or both the houses are controlled by the other party
Federalism
- Political powers are divided between a national government and state government each having their own areas of jurisdiction
Limited government
Principle that the scope of federal government should be limited to what is necessary for the common good of people
State government powers
- Est local governments
- Regulating elections
- maintaining a national guard
- Assuming powers not listed in the constitution eg issuing licences
Concurrent powers
- Federal and state :
- Making constitutional amendments
- Levying taxes
- Est courts
- making and enforcing laws
Federal (national) government powers
- Creating and maintaining armed forces
- Conducting foreign relations
- Declaring war
