The Constitution Flashcards
S.E. Finer on separation of powers
‘Like two halves of a bank note - each useless without the other’
Checks by the Courts
Declare a law unconstitutional - (eg. Shelby County v Holder 2013 struck down VRA 1965)
Declare the President’s actions unconstitutional - (Eg. NLRB v Noel Canning - Obama 2014)
What did the Founding Fathers want regarding Federalism?
For limited government, whereby the federal government is limited to that which is necessary for the common good of the people.
Example of entrenched nature of Constitution
Difficult amendment procedure
Neustadt on separation of powers
[The Constitutional Convention] ‘created a government of separated institutions sharing powers.’
Article 4
Defines states rights
Which foundations are the principle of limited government based upon?
Individual rights
Popular sovereignty
Types of power
Delegated - (Can be found in the first three articles of the constitution)
Implied (eg. Article 1, Section 8)
Reserved (The Tenth Amdendment) - Federalism
Concurrent (Possessed by both state and federal government, eg. Power to collect taxes)
Factors explaining why so few amendments have been passed
Founding Fathers created a deliberately difficult process
Constitution is unspecific and vague
Supreme Court’s power of judicial review
Constitution held in degree of veneration by many Americans
Amendment process
Proposed by 2/3 of the House and Senate
Ratified by 3/4 of the state legislatures
Article 2
Provides the President with power
Example of a Presidential pardon
Bill Clinton on Mark Rich 1999
Entrenchment
The application of extra legal safeguards to a constitutional provision to make it more difficult to amend or abolish it
Checks by Congress on President
Amend/delay/reject the president’s legislative proposals (eg. Refusal to fund Trump’s border wall - 2018)
Override the President’s veto (eg. Obama’s veto on the Justice Against Sponsor’s of Terrorism Act - 2016)
The power of the purse - Article I, Section 8/9 (eg. Foreign Assistance Act 1974 - Ended funding of Vietnam War, threby forcing Nixon to withdraw troops and end war
Refuse to approve Presidential appointments/ratify Presidential treaties (eg. Merrick Garland - 2016)
Impeachment - (eg. Bill Clinton - 1998-99)
Checks by Congress on Courts
Propose constitutional amendments - (eg. 26th Amendment lowered the voting age to 18 - 1971)
Refuse to approve a judicial nomination - (eg. Merrick Garland - 2016)
Impeachment - (eg. Samuel Chase - 1804)
Article 6
Establishes constitutional supremacy
Enumerated powers
First three articles of the constitution
Powers delegated to the three branches of the federal government
Pro divided government leading to less effective government
Treatment of Robert Bork and Clarence Thomas by a Democrat-controlled Senate
Impeachment proceedings conducted against Clinton by a Republican-controlled Senate
Article 1
Provides Congress with power
Supremacy clause
Found in Article VI
States that the Constitution ‘shall be the supreme law of the Land’
Montesquieu on separation of powers
‘When the legislative and executive powers are united in the same person…there can be no liberty’
Pro divided government leading to more effective government
Bills and treaties scrutinised more closely
Nominees questioned more rigorously
Only twice in the last 50 years has Congress overridden a veto of a President of its own party
Not since 1935 has the Senate rejected a treaty of a President of its own party
James Madison on checks and balances
‘Ambition counter-checking ambition’
Necessary and proper clause
Article I, Section 8 empowers Congress to make all laws ‘necessary and proper’ to carry out the federal government’s duties
Features of the US constitution
Codified
Blend of specificity and vagueness
Entrenched provisions
Checks by the President
Veto a Congressional bill - (eg. February 2015 - Obama vetoed bill that would have approved Keystone XL pipeline)
Nominate judges
Power of pardon
Bully pulpit
Anti current amendment process
Overly difficult to amend, thereby maintaining outdated provisions (electoral college)
Enhances the power of the unelected Supreme Court to make interpretative amendments
States have an equal voice regardless of population
Pro current amendment process
Prevents temporary opinion having a long-lasting effect (prohibition)
Supermajorities prevent a small majority from imposing its will on a large minority
Ensures support of both federal and state governments
Implied powers with an example of one
Powers possessed by the federal government by inference from those powers delegated to it in the Constitution
eg. ‘Necessary and proper clause’ - Article I, Section 8
Principles of the Constitution
Separation of powers
Checks and balances
Federalism
Article 5
Defines the amendment procedures
Examples of how the Constitution blends specificity and vagueness
Implied powers (eg. The power to draft people into the armed forces may be implied from Congress’s enumerated power to raise an army and navy)
Concurrent powers - (eg. Power to levy taxes)
How many times has the Constitution been amended?
27, out of 33 attempts
Article 3
Provides the Supreme Court with power
Pro US Constitution still works
Federalism has proved to be an excellent compromise between strong national government and state government diversity
The text has proved very adaptable to changes in American society
Amendment process has prevented ill-conceived proposals for amendments
Protects the rights and liberties of Americans
The Supreme Court’s power of judicial review has made it adapatable through “interpretative amendment”
Anti US Constitution still works
Amendment process too difficult, making it impossible to amend parts that are no longer applicable or to add part that a majority desires
The power of judicial review gives the Supreme Court too much power to ‘amend’ its meaning
Some parts make little sense in today’s society - The Electoral College
Pro federalism still works today
Creates more access points in government
Provides an extra layer of security for individual rights and liberties
Makes states ‘policy laboratories’
Well suited to a geographically large and diverse nation
Anti federalism still works today
Relationship between federal and state governments can become a source of conflict
Overly bureaucratic - costly to run and resistant to change
Federal government increasing its role
American Recovery Reinvestment Act
Obamacare
No Child Left Behind
Government taking control of two privately owned mortage providers - Fannie Mae and Freddie Mac - Washington Post - “a stunning use of federal power”
VS
Takeover of Fannie Mae and Freddie Mac were forced on to government by circumstances rather than as part of a deliberate attempt to increase the power of the federal government
Federalism protecting states’ rights
Sancutary cities left untouched - Brandeis - “laboratories of democracy”
Printz v US (1997) - Established that states are not obliged to enforce federal law - Brady Bill
Shelby County v Holder
VS
Gonzales v Raich (2005) - California’s medical marijuana law violated the Commerce Clause
DC v Heller (2008)
Obergefell v Hodges (2015)
