The Constitution

Question 1

Loose Constructionism

Answer 1

The Constitution is a living document, which ought to be interpreted according to contemporary circumstances - usually associated with more liberal justices

Question 2

Strict Constructionism

Answer 2

The Constitution ought to be taken exactly at face value, with no room for any sort of interpretation - associated with conservative justices, though there has not been a strict constructionist on the SC for many years

Question 3

Originalism (Original Intent Theory)

Answer 3

The Constitution ought to be interpreted according to the intentions of those who drafted and ratified it and its amendments - minority view amongst originalists

Question 4

Originalism (Original Meaning Theory)

Answer 4

The Constitution ought to be interpreted according to what a “reasonable individual” at the time of ratification would have declared to be the “ordinary meaning” of the text to be. Also known as textualism

Question 5

Roe v. Wade

Answer 5

1973 - ruled that there is a right to privacy guaranteed by the “due process” clause of the 14th Amendment, thus granting women the right to an abortion. Decision was 7-2 Loose Constructionist.

Question 6

Trop v. Dulles

Answer 6

1958 - Established the premise that in cases related to the 8th Amendment, the phrase “cruel and unusual punishment” must be measured against “the evolving standards of decency.” Decision was 5-4 Loose Constructionist, majority opinion written by Chief Justice Earl Warren

Question 7

Lawrence v. Texas

Answer 7

2003 - Struck down Texas’ sodomy law after Lawrence was arrested for homosexual activities. Reendorsed the right to privacy in the due process clause. Decision was 6-3 Loose Constructionist (5 cited the due process clause, 1 cited the equal protection clause of the 14th Amendment)

Question 8

DC v. Heller

Answer 8

2008 - struck down legislation barring guns from the centre of D.C - Loose Constructionists argued that the 2nd amendment ought to be balanced against contemporary problems not present in the 1790s, i.e. massacres, school shootings. Decision was 5-4 Strict Constructionist.

Question 9

Clarence Thomas on Loose Constructionism

Answer 9

“There are really only two ways to interpret the Constitution - try to discern as best we can what the framers intended or make it up.”

Question 10

Categorical Grants

Answer 10

Grants to states from the Fed. which were conditional on certain actions on the part of the states. E.g. National Minimum Drinking Age Act (1984) punished states for failing to enforce a drinking age of 21 by reducing their highways funding. Challenged in South Dakota v. Dole (1987), upheld 7-2.

Question 11

Block Grants

Answer 11

Grants that were still attached to specific purposes, were much broader that Categorical Grants, and had fewer restrictions. E.g. Omnibus Budget Reconciliation Act (1981) Merged 77 CGs into 9 BGs. Strongly associated with New Federalism.

Question 12

Reagan on Federalism

Answer 12

“Government is not the solution to our problems - government is the problem” - first Inaugural Address.

Question 13

Clinton on Federalism

Answer 13

“The era of big government is over” - 1996 State of the Union Address.

Question 14

New Federalism

Answer 14

A political movement calling for the devolution of power from the Federal government back to the states. Prevalent from the 1980s onwards.

Question 15

Unfunded Mandates

Answer 15

Federal regulations on states which cause states affected to incur costs, without providing funding to cover these costs. Restricted by the Unfunded Mandates Reform Act (1995)

Question 16

Welfare Reform under Clinton

Answer 16

Generally consistent with New Federalism, e.g. replacement of Aid to Families with Dependent Children (federally regulated) with Temporary Assistance for Needy Families, which used Block Grants, allowing the states to decide on requirements for receipt.

Question 17

Commerce Clause

Answer 17

Allows Congress the power to “regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” Used as a justification for many laws which would intuitively be considered to exceed this power.

Question 18

US v. Lopez

Answer 18

1995 - struck down the Gun-Free School Zones Act (1990) - Lopez was arrested for carrying an unloaded gun into his school. Decision was 5-4 in favour of Lopez, and this made the act the first to be struck down for exceeding the Commerce Clause since 1937. Considered a landmark for New Federalism.

Question 19

Printz v. US

Answer 19

1997 - ruled that it was unconstitutional for the federal government to require state police forces to enforce the background checks stipulated in the Brady Handgun Violence Prevention Act (1993). Decision was 5-4 in favour of Printz under the 10th Amendment, who was a county sheriff.

Question 20

Federal Spending under Bush

Answer 20

Grants to states were doubled to $461bn. Medicare Modernisation Act (2003) increased spending by $531bn. Troubled Asset Relief Program bailed out banks at a cost of $700bn. Increased the burden of federal spending on US GDP, even when military spending is factored out - this was not the case under Clinton or Reagan.

Question 21

No Child Left Behind

Answer 21

2001 - required schools to administer standardised tests in federally selected areas of study in order to receive federal funding - greatly increased the role of the fed in education, taken as evidence of GWB’s opposition to New Federalism. Came only a few years after many in the GOP had called for the abolition of the DoE.

Question 22

REAL ID Act

Answer 22

2005 - required all states to issue uniform driving licenses at a total cost of $11bn.

Question 23

Cooperative Federalism

Answer 23

A period during which the distinction between the powers held by the states and by the federal government became blurred, bringing about a significant increase in the size of the federal government. Prevalent from the 1930s to the 1980s.

Question 24

Affordable Care Act (Obamacare)

Answer 24

2010 - Required states to expand their Medicaid programmes and set up insurance marketplaces - expanded the role of the fed in healthcare provision.

Question 25

Dual Federalism

Answer 25

A system whereby there is a clear distinction between the role of the federal government and that of the states, which is considered to bring about a relatively small federal government. Prevalent up to the 1930s.

Question 26

Bill of Rights

Answer 26

The first 10 amendments to the Constitution, ratified in 1791. Guaranteed a variety of rights to all US citizens.

Question 27

1st Amendment

Answer 27

Gives citizens the right to freedom of speech, religion, assembly, and to petition their grievances to the government.

Question 28

2nd Amendment

Answer 28

Gives citizens the right to keep and bear arms.

Question 29

4th Amendment

Answer 29

Gives citizens the right to security from unreasonable searches and seizures.

Question 30

6th Amendment

Answer 30

Gives citizens the right to a speedy and fair trial by an impartial jury. The Supreme Court ruled in Gideon v. Wainwright (1963) that this amendment guarantees citizens the right to legal representation in all felony trials.

Question 31

8th Amendment

Answer 31

Gives citizens the freedom from cruel and unusual punishment (see Trop v. Dulles (1958)).

Question 32

10th Amendment

Answer 32

Grants all powers not specified in the Constitution to the states.

Question 33

14th Amendment

Answer 33

1866 - Grants all citizens equal protection under the law and the due process of law - the latter was instrumental in Roe v. Wade (1973) and Lawrence v. Texas (2003), in which it was interpreted as granting an implicit right to privacy.

Question 34

Constitutional Democracy

Answer 34

The founding fathers were wary of unfettered democracy - at the time of ratification, the Senate was unelected, and there was no requirement for the states to hold popular elections to allocate their electoral college votes.

Question 35

17th Amendment

Answer 35

1912 - established popular elections to the Senate

Question 36

Plessy v. Ferguson

Answer 36

1896 - endorsed segregation under the doctrine of “separate but equal”

Question 37

Brown v. Board of Education of Topeka, Kansas

Answer 37

1954 - ruled that the segregation of schools led to black schools being of a lower standard than white schools, thus violating the equal protection clause of the 14th amendment. Decision was unanimous, though desegregation would not be completed for another 10 years.

Question 38

Atkins v. Virginia

Answer 38

2002 - found that the execution of a mentally disabled person violates the 8th Amendment. However, the definition of mentally disabled is left to the states. Decision was 6-3 (Scalia, Rehnquist and Thomas dissented). Scalia said that the court’s decision rested on “nothing but the personal views of its members.”

Question 39

Snyder v. Phelps

Answer 39

2011 - Ruled that US citizens may not be prosecuted for speaking about a public issue whilst on public land, even if the speech causes severe distress, under the 1st amendment - the speech in this case was the Westboro Baptist Church picketing a soldier’s funeral. This is evidence of the protection of the freedom of speech. Decision was 8-1.

Question 40

Texas v. Johnson

Answer 40

1989 - Ruled that prosecution of a citizen for burning the US flag is unconstitutional as it violates the 1st amendment - this decision struck down anti-flag burning laws present in 48 states. Decision was 5-4.

Question 41

Korematsu v. US

Answer 41

1944 - Held that the internment of Japanese Americans in the aftermath of Pearl Harbour was constitutional, and did not violate the 5th Amendment. Decision was 6-3, with the court stating that the decision was based on deference to Congress and the Executive. Evidence against good enforcement of individual rights.

Question 42

US v. Jones

Answer 42

2012 - Ruled that tracking an individual’s movements electronically constitutes a search under the 4th Amendment, but declined to rule on whether it was, in this case, unreasonable - evidence for partially enforced rights. Decision was unanimous.

Question 43

Boudemine v. Bush

Answer 43

2008 - ruled that “enemy combatants” held at Guantanamo Bay have a right to a free and fair trial, in spite of the fact that they are not US citizens, and Guantanamo Bay is not technically US territory. Declared that Congress could not prevent detainees from petitioning the Supreme Court. Decision was 5-4.

Question 44

Hollingsworth v. Perry

Answer 44

2013 - Struck down California’s ban on gay marriage, which had been established by Proposition 8, under the 14th Amendment. Decision was 5-4.

Question 45

Citizens Utd v. FEC

Answer 45

2010 - ruled that the government cannot restrict political expenditures by a nonprofit corporation under the 1st Amendment, essentially defining spending money as a form of speech. Decision was 5-4.

Question 46

Congressional checks on the President

Answer 46

Can override any presidential veto with a 2/3 majority in both chambers, e.g. US Farm Bill (2008). Can amend or block any legislation brought forward by the President, e.g. Obamacare (2010) lost the key provision that a federal healthcare provider would be established to compete with private firms, Health Security Act, debated in the ’90s under Clinton, could not pass Congress - was intended to be one of Clinton’s legislative cornerstones. Senate can block any Presidential nominations, e.g. Robert Bork, nominated to the Supreme Court by Reagan in 1987, Senate voted against 58-42. All federal spending must be approved by Congress, e.g.

Question 47

Congressional checks on the Supreme Court

Answer 47

There are few. The only conceivable one in fact is the ability to pass a constitutional amendment in order to supersede a prior Court ruling, e.g. the 16th Amendment (1913) overturned Pollock v. Farmers’ Loan and Trust Co. (1895). The case related to taxes on interest, dividends and rents.

Question 48

Popular Sovreignty

Answer 48

The principle that ultimate power is held by the people, rather than by a political elite. The power of the Constitution rests on this principle, as embodied by the phrase “We the People.”

Question 49

Separation of Powers

Answer 49

The Constitution ensures that there is no overlap between the Legislative, Judicial and Executive branches of government - in practice, this means that no individual can be a member of more than one branch at once, e.g. Obama had to resign as a Senator for Illinois before becoming President.

Question 50

Judicial Tyranny

Answer 50

The idea, generally promoted by ideological conservatives, that the Supreme Court is given too much unchecked power in shaping the way the US is run - they see this as being particularly problematic due to the fact that Supreme Court decision arguably tend to be more liberal than those of Congress and the President.

Question 51

Judicial Review

Answer 51

The power of the Supreme Court to strike down any law, state or federal, that it considers to be unconstitutional. The court awarded itself this power in Marbury v. Madison (1803), though it is arguably implicit in Article 3 of the Constitution, which tasks the SC with determining whether laws are constitutional.

Question 52

Katzenbach v. McClung

Answer 52

1964 - addressed the section of the Civil Rights Act (1964) which prohibited segregation in restaurants. Ruled that this is constitutional under the commerce clause, as Congress is permitted to regulate business that is purely local, as long as some part of it has an effect on interstate commerce. Originalists would argue that the commerce clause was never intended to allow the government to regulate anything as seemingly non-commercial as segregation.

Question 53

US v. Morrison

Answer 53

2000 - invalidated the section of the Violence Against Women Act (1994) which allowed victims of gender-motivated violence to sue their attacker in a federal court, on the basis that it exceeded the Commerce Clause. This reinforced the limitations on the clause established by US v. Lopez (1995).

Question 54

Judicial checks on other branches

Answer 54

Essentially limited to the power of Judicial Review, which can be used to strike down the actions of Congress, the Executive and the state governments. Between 1989 and 2010, the SC held 165 acts of Congress to be unconstitutional, e.g. DOMA struck down in US v. Windsor (2013). 5 of FDR’s Executive Orders were struck down in a single year (1935) - other notable struck-down executive orders include Clinton’s which stipulating that benefits and services had to be provided in foreign languages, struck down in Alexander v. Sandoval (2001).

Question 55

Executive checks on Congress

Answer 55

The State of the Union address may be used to put pressure on Congress to pass particular pieces of legislation, e.g. Clinton’s declaration that “the era of big government is over” in 1996 was followed by reductions in the role of the federal government in welfare in particular. President can veto (regular and pocket) any legislation passed by Congress, e.g. George Bush Jr. vetoed 2 iterations of the Stem Cell Research Enhancement Act (2005, 2007), which would have allowed for federal funding for stem cell research - neither veto was overridden.

Question 56

Executive checks on the Judiciary

Answer 56

Can check the SC through the nomination of new justices, which can drastically alter the ideological balance of the court, e.g. Earl Warren nominated for Chief Justice by Eisenhower in 1953, went on to lead a liberal majority which made several landmark decisions, such as Brown v. Board (1954), Gideon v. Wainwright (1963) and Trop v. Dulles (1958). Common for presidents to appoint ideologically similar justices, e.g. John Roberts (2005) as CJ and Sonia Sotomayor (2009). Can also use the power of the pardon to remove individuals from the scrutiny of the courts, e.g. Clinton pardoned 140 people on the last day of his presidency, Ford pardoning Nixon (1974).

Question 57

Articles of Confederation

Answer 57

Passed in 1781, acted as the 1st Constitution. Officially recognised Congress, and gave it the power to lead the war against the British. Left the States with the vast majority of power.

Question 58

Problems with the Articles of Confederation

Answer 58

Allowed the states to act essentially as separate, competing nations, using different currencies and imposing tariffs on one another. The states were not required to provide any funding to Congress, making it difficult for it to function. Did not create an executive branch - lacked leadership. Each state had one delegate, giving the smaller states disproportionate influence. 9 of 13 votes were required to pass a law, which was difficult to achieve.

Question 59

Shay’s Rebellion

Answer 59

Occurred in 1787 - 1500 men attempted to take a local armoury in Massachusetts in protest against percieved high taxes, and although they failed, the event raised questions about whether a more powerful federal government was needed to maintain order.

Question 60

Connecticut Compromise

Answer 60

Compromise made in the drafting of the Constitution at the Philadelphia Convention between those calling for a larger/smaller federal government and a larger/smaller role for the states. Manifested itself in the bicameral legislature - the House gave proportional representation, whilst the Senate gave equal representation to the smaller states. Made Congress more powerful - allowed it to print money and regulate trade, amongst other things.

Question 61

Montana Firearms Freedom Act

Answer 61

2009 - allowed guns to escape federal regulations if they were manufactured and circulated solely in the State of Montana, thus not falling under the remit of the Commerce Clause. Similar laws were subsequently enacted in several other states, including Alaska, Utah and Tennessee.