The Constitution Flashcards
Overview
Based on liberal ideas
- Representative democracy
- Dec of independence = “governments are instituted among Men”
- Preamble too const = “We the people”
- Lincoln = “government of the people, by the people, for the people”
Gun Control
“The right of the people to keep and bear arms shall not be infringed”
U.S v Cruikshank (1876) = 2nd amendment had no purpose other than to restrict federal govt
Lewis v US (1980) = prior convictions wouldn’t prevent you from owning a gun
D.C. v Heller (2008) = guarantees individual right to possess firearms, not collective right of state
U.S. v Hayes (2009) = affirmed law banning people convicted of domestic abuse from owning guns
McDonald v City of Chicago (2010) = 5-4- 2nd amendment was an individual right - 2nd amendment applied to state as well as federal govt.
For gun ownership:
1) Conservative pressure groups (NRA)
2) Conservative interpretation
3) Protection of rights
Against gun ownership:
1) Liberal pressure groups (Brady campaign)
2) Liberal interpretations
3) Outdated / unclear
Conservative pressure groups (NRA)
- National Rifle Association (NRA) = “promote and encourage rifle shooting”
- 2022 - $94m from membership
- 2021 - spent $4.2m on lobbying
- 2015 poll = 58% Americans either ‘mostly favourable’ or ‘very favourable’ towards NRA
Conservative interpretation
- Personal right - can’t be infringed
- ‘Applied Economics Letters’ = “assault weapons bans did not significantly affect murder rates at the state level”
- Wayne Lapierre = “the only thing that stops a bad guy with a gun is a good guy with a gun”
- Repealing 2nd amendment would also take guns away would only allow ppl who shouldn’t have them to have them
Protection of rights
- Still relevant
- McDonald v City of Chicago = 2nd amendment individual right
- Lawrence Hunter = “Founders understood the right to own arms is essential to maintaining liberty”
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Liberal pressure groups (Brady campaign)
- Set up by James + Sarah Brady
- Aims to reduce gun violence by 25% by 2025
- 1988- ‘Brady Bill’ signed by Clinton
Liberal interpretation
- 1999-2016 = 572,000 gun deaths, only 0.79% of victims protected themselves with a gun
- 73% Dems believe there should be more gun control laws
- David Frum = American children under 15 9x more likely to die of a gun accident compared to other wealthy countries
- Gun violence cost $229bn a year
Outdated
- US v Cruikshank (1876) = 2nd amendment had no purpose other than restrict federal government
- Contradictory –> Chief Justice Roger Tahey in Dried Scott v Sandford = black people couldn’t become Americans because they’d be able to “carry arms wherever they went”
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Others
Legally owned guns are often stolen and used by criminals
- 2005-2010 = 1.4m registered guns stolen
- 1999-2016 = 336,579 (58.8%) suicides ,
213,175 homicides (37.25), 11,428 unintentional deaths (2%) - 2015 poll = 63% cited self-defence as primary reason why they owned guns
Features of the Constitution
1) Codified
1st 3 articles focus on outlining powers of each branch
Article 1- Legislature - ‘all leg. powers herein granted shall be vested in a Congress’ - gave house power of purse + cong. declare war
Article 2- Executive - Pres chosen by electoral college
Article 3- Sup court - + district and appeal courts - decide disputes of const.
2) Blend of specificity + vagueness
[I] Implied powers - Congress- deduced under ‘elastic clause’ - ‘necc+proper’
[II] Reserved powers - reserved for states + people
[III] Concurrent powers - powers of both federal and state - e.g. collecting taxes
(Supremacy clause)
3) Entrenched
Difficult to amend - sup. maj
Principles of the Constitution
1) Separation of powers
Montesquieu – without sep. “there can be no liberty”. Separation of personnel - Obama elected Pres 2008 had to leave Senate, as did his vice-pres Biden
2) Federalism
3) Limited government
Federalism
Where politcal power is divided between a national government and state governments
Concurrent powers (e.g. taxation) + 10th amendment reserved all remaining powers “to the people”
Theories of Federalism
1) Dual Federalism
- Const: state + fed. gov. would do different things = federal = national defence. States = everything else
- But African Americans have looked to federal courts to stop segregation
2) Cooperative Federalism
- During Great Depression, states didn’t have resources to look after their citizens - fed. govt did. FDR’ New Deal
3) Creative Federalism
- Bypassing state govt.
- Johnson launching ‘Great Society’ programme, designed to end poverty - states couldn’t be relied on
4) New Federalism
- Re-empowering states + restoring balance closer to dual federalism:
– Reagan = offered states new arrangements called ‘swaps’, they would take full resp. over some welfare programmes, while fed. take over others. Increased costs to states led them to reject it
– Clinton - economic boom - states had surplus - pioneer new tech - Wisconsin’s ‘education vouchers’
– George W Bush - increased govt. control over national security after 9/11
Examples:
Federalism under George W Bush
Expectation he would continue to shrink size of fed. govt.
His pres- largest increase in fed. govt. spending since LBJ
Education = No Child Left Behind Act 2002 - states tested kids on national test
Medicare = expanded to include new prescription drug benefit
Homeland security = Patriot Act 2001
Federalism under Obama
‘Change’ agenda
Healthcare = expasion of federal-state ‘Medicaid’ under Affordable Health Care Act (Obamacare) ensured state participation or else they’d lose fed. funding
Evaluation
Advantages:
1) Effective - easier to run a large country like US with local officials - diverse - closer to problems - fed. govt. focus on emergencies - more effective
2) Innovation - experiment with policies
– California led nation in environmental regulations
3) Leads to political stability
4) Ensures sep. of powers + prevent tyranny - state govt. still function independently - double scrutiny
Disadvantages:
1) Lack of accountability - overlap of boundaries tricky to point blame
2) Variation - conflict in law - death pen. illegal = 21, legal = 29
3) Enlarged govt - fed. govt has grown
4) Party decentralisation - Southern Rep. diff to a Northern Rep – 2016 Pres nom, Reps in Wyoming chose their national convention delegates through a state party convention, eliminating voter choice
Bill of Rights
Added to const. at urge of Anti-Federalists
Entrenched rights. However have been limited- denial of civil rights to black Americans after 14th + 15th amend., Japanese-Americans during war
First ten amendments:
1) Freedom of speech, press, assembly + religion
2) Well-regulated militia + bearing of arms
3) Prohibits quartering of soldiers (people having to give their housing to soldiers)
4) Protection against unreasonable searches + seizures
5) Right to remain silent
6) Right to public trial, impartial jury + defence
7) Right to jury
8) No cruel / unusual punishments
9) Listing of certain rights doesn’t deny the existence of other rights
10) Powers not delegated to US, nor to states, belong to the people
Privacy
Const. doesn’t explicitly guarantee right to privacy, but Sup Court has found does provide right to privacy in:
- 1st (freedom of thought)
- 3rd (freedom of use of property- don’t have to quarter soldiers)
- 4th (unreasonable search)
- 5th (remain silent)
- 9th (extension of enumerated rights)
Jefferson = “the opinions of men are no matter of civil government”
Katz v U.S (1967) = 4th amendment extended to anywhere a person has a reasonable expectation of privacy
Roe v Wade (1972) = ‘right to privacy’ protects women’s rights over her own body
U.S. v Moalin (2013-2020) = NSA’s surveillance illegal because was ‘possibly unconstitutional’
For privacy:
1) Prevents govt. intrusion
2) Keeps groups from using personal data for own goals
3) Protects freedom of speech + thought - prevents ‘thought crimes’
Against privacy:
1) If you’ve got nothing to hide, nothing to be afraid of
2) If info is already public, it concerns matters of public interest
3) Increased surveillance protects society
4) Originalists - no general right of privacy exists because it’s not explicit
Amendment process
Proposal - proposed + require 2/3 maj
Ratification - sent to states - 2/3 to agree – 33 amendments passed for ratification, 27 passed
Clinton - 17 votes on proposed const. amend.
George W Bush - prop. to ban desecration of flag failed in Senate in 2006
other examples
Reasons why it’s rarely amended:
1) High threshold for amendments
2) Flexibility through interpretation
- Const = living document
- Courts decide key issue - flexibility without need of formal amendments:
– Brown v Board of Education (1954)
– Obergefell v Hodges (2015) expanded const. without amend.
3) Checks + balances
4) Amendment alternatives - certain issues addressed through alternative means
– Civil rights –> Civil Rights Act (1964), Voting Rights Act (1965)
5) Lot of compromise
Advantages:
1) Stability and endurance
– 13th amendment (abolished slavery) highlighted how long amendment process was
2) Protecting individual rights
– 19th amendment (women right to vote)
3) Checks and balances
– Equal Rights Amendment (same rights, regardless of sex) - lots of debate - heavily scrutinised
Disadvantages:
1) Slow - only 27
2) Difficulty in addressing complex issues - gun control
3) Potential for entrenched interests - barriers for marginalised groups
– Struggle for civil rights - sig. options pre 14th + 15th amendment
Advantages of the Constitution
1) Longevity + stability
One of longest constitutions used in the world – peaceful transitions between Pres’
2) Protection of individual rights
Freedom of speech, thought religion + assembly
– 1st amendment - citizens voice opinions freely - social movements - civil rights movement in 1960s
3) Separation of powers
– Brown v Board of Education = ended racial seg. in schools provides check to Congress
4) Flexibility
- Living document
– Expansion of voting rights
– 15th amendment (vote regardless of race)
– 19th amendment (vote regardless of gender)
5) Balancing federalism
- Federal govt handles issues of national importance, state govt issues tailored to their specific needs
- Promotes innovation, responsiveness to local needs
Disadvantages of the Constitution
1) Gridlock
- Checks + balances
Gridlocks can lead to government shutdowns. There have been 4 shutdowns:
1) 1995-1996, President Clinton + Republican Congress unable to agree on spending levels, so the government shut down twice= 26 days.
2) 2013: standoff over funding for the Affordable Care Act= 16 days
3) December 2018 and January 2019, a dispute over border wall funding led to a shutdown= 35 days; partial shutdown because Congress had previously passed 5 / 12 appropriation bills.
2023: Congress struggled to pass the federal budget because policymakers couldn’t agree on whether (or how) to raise the debt ceiling
2013: Republicans blocked President Obama’s judicial nominations
Ronald Reagan + George W Bush faced divided Congress
2) Difficulty in amending
- Challenging
- Equal Rights Amendment (guarantee equal rights regardless of gender) first introduced in 1923 but not yet fully ratified
3) Interpretation + evolving social values
- Vagueness leaves room open for interpretation
- Interpreations around 2nd amendment have changed as society has changed - ongoing legal challenges
4) Electoral college popular vote discrepancies
– 2000 + 2016 Pres elections- won electoral college vote but lost popular vote
5) Racial and social inequality
- Didn’t adequately address racial + social inequality
