The Constitution Flashcards
Give 3 ways in which the US Constitution is less flexible than the UK Constitution
❌ Codified = less flexible. 7000 words. However, many cardinal practices have been omitted e.g. cabinet and committees - allowing for some flexibility.
❌ Super majorities make amendments difficult e.g. amending the term lengths would require a super majority from both houses and state legislatures.
❌ Common law is an anathema (abhorrence) of the US Constitution. Common law, one of the most flexible parts of any jurisdiction, only affects cases; having little influence on constitutional arrangements.
Give 3 ways in which the UK Constitution is more flexible than the US Constitution.
✔ Uncodified is inherently more flexible. E.g. constitutional provisions can be made on a whim e.g. HRA ‘98 or Brexit.
✔ UK can be easily amended e.g. repealing the Fixed Term Parliaments Act 2011 upcoming.
✔ Common law is a large contributor of the UK Constitution e.g. R (Miller) v. The PM, use of royal prerogative void if unlawful. - Constitution remains contemporaneous due to amendments being made by erudite lawyers.
Give 3 ways in which the US Constitution is more flexible than the UK Constitution and provide UK supplementary points.
✔ The amendment process allows for change in light of societal change. E.g. 18th and 21st amendments in line with prohibition in the 1920s and 24th in line with the civil rights movement in the 1950s.
❌ However, the UK is also amicable in light of societal change. E.g. Firearm (Amendment) Act 1997 in light of Dunblane disaster.
✔ Judicial ‘interpretation amendments’ e.g. Baze v. Rees - lethal injection was neither a cruel nor unusual punishment.
❌ The inclusion of the common law in the constitution means the UK goes a step further. Not only are judges able to interpret the meaning of statutes, case ratios become constitutional e.g. R (Factortame) v. Secretary of State for Transport - EU Law > UK Law
✔ Conventions can become constitutionally entrenched. E.g. George Washington stepping down after two terms has led to the two term limit. - became constitution. However, the jurisdiction of congress and the president is constitutionally entrenched eliminating the potential abuse of power.
❌ The majority of governmental operations within Parliament are governed by convention. E.g. Salisbury/IMR/CMR. Disadvantage being that, due to no legal consequence, the government can act ultra vires.
Give 4 ways in which checks and balances work better in the US Constitution than the UK Constitution.
✔ Advice and consent regarding judicial appointments in congress e.g. Appointment of Brett Kavanaugh. Although arduous, it represents the efficacy of constitutionally entrenched oversight.
✔ Article 2 - power of presidential veto. e.g. Obama used 12 times in 8 years.
✔ Impeachment - e.g. Bill Clinton in 1998 for perjury and obstruction of justice.
✔ Bipartisanship - drafters encouraged - e.g. Bush’s education reform was only possible with the backing of Democrats such as Edward Kennedy.
Give 4 counterpoints/supplementary points to the US constitution providing better checks and balances.
- Justices, even though they have a cardinal constitutional role, they have little in the way of scrutiny upon appointment due to the JAC taking the responsibility away from the executive and legislative.
- Similar practice in UK - Royal assent - the monarch can refuse to sign it, as it is a pithy tradition, the Queen knows that refusal to sign it is a de facto option.
- Similar practice exists in UK - Vote of no confidence - e.g. 1979 James Callaghan
- Similar measure exists in UK - opposition party create a shadow government e.g. Rachael Reeves is Shadow Chancellor. - Reminding the actual government that there is a replacement ready to go. Though this is a somewhat superficial measure.
Give 2 ways in which the UK constitution provides better checks and balances than the US Constitution.
✔ Face-to-face scrutiny due to the fusion of powers. E.g. PMQs - aphorism ‘punch and Judy politics’ suggesting it is as much a comedic sketch as it is a scrutiny measure.
✔ Judicial review has been described as the ‘only defence of British freedoms’ by Lord Deben. E.g. R (Miller) v. PM - though no legal consequence.
Give 2 counterpoints/supplementary points to the UK Constitution providing better checks and balances than the US Constitution.
- Separation of Powers means the President rarely appears in Congress save for the State of the Union address and Committee hearings.
- Judicial review is very much efficacious in the US e.g. US v. Nixon - court ordered Nixon to hand over the tapes to prevent further impediment of the investigation of the Watergate affair - Judicial Review is better ✔ in US than UK.
Give 3 ways in which the US constitution allows for greater decentralisation than the UK Constitution.
✔ Federalism allows powers to vest exclusively with the states, with the national government and some are shared. E.g. Article 10 mandates that states are on top of the power food chain meaning they receive unenumerated powers before the federal government.
✔ Legislation varies drastically between states. E.g. drug, gun, driving laws. Moreover, Shelby v. Holder struck down a part of the Voting Rights Act 1965 that requires states to gain federal leave to amend voting laws.
✔ Little chance of state independence - the antithesis of both decentralisation and centralisation.
Give 3 ways in which the UK constitution allows for greater decentralisation than the US constitution.
✔ Policy sharing between Parliament and devolved Assemblies - e.g. Policing and criminal law is a competence of Holyrood , Parliament manage anti - terrorism and serious crime through National Crime Agency = uniform response is advantageous.
✔ The federal government may abuse the interstate commerce clause (Art. 1, Section 8, Clause 3) - bypass the 10th amendment. - Gonzalez v. Raich - federal gov. have last say on drug policy.
✔ Extent of decentralisation is dependant on party in power. E.g. Democrats in the 1900s sought to expand Washington’s economic clout. However, Raegan emphasised states’ rights. - UK set on trajectory of decentralisation regardless of the governing party Though is independence the end goal?
Give three supplementary/counterpoints points to the US constitution allowing for greater decentralisation the the UK con.
❌ Parliament remains sovereign - the devolved assemblies exist on Parliament’s terms e.g. in 1979 Parliament replaced Stormont when it was suspended.
❌ Independence is the foregone conclusion of devolution e.g. in 2010, 28% of Scots favoured independence compared to 54% in 2021.
❌ Devolution also results in variable laws - however, the Judiciary cannot ‘strike down’ laws that prevent devolution due to the separation of the judiciary - lack of protection of decentralisation.
Give 1 supplementary/counterpoint to the UK Constitution allowing for greater decentralisation than the US Constitution.
❌ Level of fluidity is not seen in US e.g. drug laws are either to the discretion of states or the federal government.
Give some advantages of a codified constitution.
✔ More substantial checks and balances e.g. presidential veto (used by Obama 12 times) - though Line Item veto was declared unconstitutional in Clinton v. New York.
✔ Can be amended - e.g. 18th amendment in light of prohibition / 24th amendment - civil rights movement.
✔ judicial interpretation allows for amendment - e.g. Baze v. Rees - lethal injection is not a cruel and unusual punishment - reiterated in Glossip v. Gross.
Give some disadvantages of a codified constitution.
❌ Enumeration of rights doesn’t necessarily mean they are protected - Right to bear arms is restricted by the federal government - established in Toto v. United States - though attempt to alter gun laws would be unconstitutional.
❌ Elevates the importance of unelected/unaccountable judges over elected officials - ‘legislating from the bench’. - United States v. Windsor - Defence of Marriage Act 1996 was unconstitutional.
❌ Uncodified constitutions are more easily amended - e.g. UK R (Factortame) v. Transport Secretary - EU law > UK law - though less safeguard of rights e.g. HRA ‘98 could be repealed.
Outline the formal amendment process in the US.
- Require a super majority in both houses
- Require a majority in 50% of state legislatures.
- Usually must receive state support within 7 years.
Give three ways in which the executive checks the legislative.
- Presidential veto - used by Obama 12 times in 8 years - line item veto is unconstitutional - (Clinton v. New York)
- Executive drives policy agenda -e.g. Affordable Care Act - scrutiny is less effective during unified government.
- The president may choose to bypass international treaties by using executive agreements - e.g. General Agreement on Tariffs and Trade - no requirement of super majority.
