The constitutional framework of US gov

Question 1

What are the origins of the US Constitution?

Answer 1

• following American Revolution, first attempt at creating new gov based on Articles of Confederation between 13 original US states -> unrest/tension.
• Constitutional Convention in Philadelphia May-Sept 1787 -> US Constitution.
• had to be ratified by nine of 13 states; New Hampshire became ninth to ratify in June 1788.

Question 2

What are the key features of the US Constitution?

Answer 2

• representative gov not democracy.
• fear of mass democracy.
• product of time, culture, authors.
• slavery was part/parcel of nation, intrinsic to economy/society of several states.
• not about individual rights, but about framework/structure.
• order of articles not pure chance.
• was a compromise.
• based around negotiation/cooperation.
• left much unsaid/vague.
• loyalty/attachment.
• Constitution to be sovereign.

Question 3

What is meant by ‘representative government not democracy’?

Answer 3

• indirect election of president (Electoral Commission).
• Senate initially chosen by state legislature; altered to direct election in 1913 by 17th Amendment.

Question 4

How is it a product of its time, culture, authors?

Answer 4

• Founding Fathers all white Christian males.
• nearly all were slave owners, most owned land, no desire to take power away from wealthy elite.

Question 5

How was slavery part of the new nation?

Answer 5

• South - white Americans forced African Americans to do slave labour on cotton/tobacco plantations.
• Constitution was silent on use of slavery.

Question 6

How is the order of the articles important?

Answer 6

• Congress comes first -> principal player.
• President mentioned second; envisaged as trouble-shooter, international representative, focus for unity.
• had no desire to manufacture a US version of monarch.
• SC last/role lacked specific details; no requirements in terms of age, number, nationality; no mention of role as interpreters of Constitution.

Question 7

How was the constitution a compromise?

Answer 7

• Connecticut Compromise dealt with clash between small/large states.
• compromise between states with large populations of enslaved people eg Virginia and others via three-fifths clause.
• between Founding Fathers such as Hamilton who wanted strong central gov, and those such as Jefferson who wanted most power to lie with individual states.

Question 8

How was there an implicit fear of power?

Answer 8

• power should be separated/shared between states and federal gov, and different institutions of federal gov.
• limited gov was key principle; balance of individual/gov rights; balance between federal gov/states.
• codified.

Question 9

How is there vagueness in the constitution?

Answer 9

• powers outlined vaguely = implied powers eg Congress given power to provide for common defence/general welfare; could be used to justify military draft or national healthcare programme.
• very specific in some places eg age requirements = enumerated powers.
• designed to be long lasting/not easily overturned.

Question 10

How is the vagueness/silence a strength?

Answer 10

• allowed Constitution to evolve/develop; the term ‘elastic clause’ has enabled adaptation to changing values; eg Immigration Act 1924 reflected clear racial bias, banning entry of all Asian people, Voting Rights Act 1965 forbade racial discrimination in voting.

Question 11

How is the vagueness/silence a weakness?

Answer 11

• saying nothing on slavery - seeds sown for sectional divide that would culminate in civil war; slavery only banned afterwards under 13th Amendement 1865.
• ambiguity - gun rights/ability to make war.
• Congress has sole power to formally declare war; gives title of commander-in-chief to president

Question 12

What is the importance of judicial review?

Answer 12

• grants SC power of interpreting Constitution; precedent set by 1803 Marbury v Madison.
• crucial function but has led to politicisation; many constitutional issues.
• Court can revise opinions; 1896 Plessy v Ferguson case upheld racial segregation laws, reversed in 1954 Brown v Board of Education of Topeka.

Question 13

What is gridlock?

Answer 13

• constitution designed to promote cooperation/compromise, often requiring mutual agreement eg all laws must be approved by both houses.
• frequently, there is competition/deadlock between branches; budget proposed by president, approved by Congress -> has led to standoff/gridlock.
• limited gov shutdowns have occurred; 35 days Dec 2018-Jan 2019 over Trump’s insistence on greater funding for border wall.

Question 14

How do elections work?

Answer 14

• organisation of election in hands of 50 individual states.
• certain national criteria mandatory eg Voting Rights Act 1965.
• wide variations in use of postal ballots, early voting, voting rights of ex-felons.
• some including Utah automatically mail ballots to voters.
• following 2020 elections, Georgia state law required that as neither candidate for two senatorial races achieved over 50%, a runoff election held in Jan.
• voter ID laws; Kansas/Mississippi have strict requirements over what’s permissible.

Question 15

What is the separation of powers?

Answer 15

• gov divided into three distinct branches - legislature, executive, judiciary to avoid tyranny/absolutism.

Question 16

Arguments that the separation of powers is significant

Answer 16

• each branch checked/limited by other two.
• no person can serve simultaneously in Congress/executive; Hilary Clinton had to resign as senator when appointed secretary of state; Deb Haaland resigned as congresswoman when Biden nominated her as secretary of the interior.
• helps prevent one branch having too much power/elective dictatorship; president needs to work with Congress to get policy through.
• preserve notion of independent/non-political judiciary, vital to defence of civil liberties/entrenched rights.

Question 17

Arguments that the separation of powers is less significant.

Answer 17

• ‘separation’ is misleading; shared powers is better eg both president and Congress have powers over passing laws.
• VP also senate president/has casting vote in event of tie; Mike Pence used power to confirm Betsy DeVos as education secretary in 2017/Jonathan Kobes for Court of Appeals in 2018.
• president with supportive SC can wield much power.
• US judiciary very politicised; politicians in nomination/confirmation process lessens independence.
• presidents have power of pardon, overlapping with judicial powers.

Question 18

What are some presidential checks on Congress?

Answer 18

• Presidents veto acts/resolutions - Obama vetoed Keystone XL pipeline/issued 12.
• threaten veto - Obama made four in 2015 State of the Union Address.
• executive orders to bypass need for formal legislation - Trump issued travel ban on visitors from Muslim-majority countries in 2017.
• use commander-in-chief role to deploy troops overseas - 2001/3, Bush ordered invasions of Afghanistan/Iraq.

Question 19

What are some presidential checks on the courts?

Answer 19

• president nominated all federal justices including SC - Obama appointed Sonia Sotomayer/Elena Kagan.
• president can issue pardons/commutations - Ford pardoned Nixon; Obama issued record 330 commutations on final day; originally included to enable president to pardon rebels in early days of nation.

Question 20

What are some congressional checks on president?

Answer 20

• veto can be overturned by supermajority in both houses - Congress overturned Obama’s veto of JUSTA in 2016; Bush had 4/12 overturned.
• Senate must confirm presidential appointments - blacked Obama’s appointment of Robert Wilkins to DC court of appeals in 2013.
• threat of Senate rejection powerful - Biden’s controversial 2020 pick of Neera Tanden as Director of OMB withdrawn when it was clear she wouldn’t secure enough votes.
• Congress has power of the purse/can turn down presidential requests for funding.
• Congress can decline to pass legislation desired by president - Obama requested gun-control measures following Sandy Hook school shooting in 2012.
• impeachment - House voted for proceed with impeachment against Trump in 2019 (not convicted in Senate).
• has power to block treaties - Senate failed to ratify Convention on the Rights of Persons with Disabilities in 2012.
• can launch investigations into presidential actions - House Oversight and Reform Committee launched inquiry into potential conflict of interest in 2019.

Question 21

What are some congressional checks on courts?

Answer 21

• can impeach federal justices - Louisiana federal judge Thomas Porteous in 2010 for corruption.
• constitutional amendments can be initiated to overturn SC verdicts - court found national income tax to be unconstitutional in 1896; reversed by ratification of Thirteenth Amendment in 1913.

Question 22

What are some judicial checks on president?

Answer 22

• courts can rule presidential actions unconstitutional/illegal - Hamdan v Rumsfeld (2006) rules against special military commissions set up by WBush to try suspected members of al Qaeda.

Question 23

What are some judicial checks on Congress?

Answer 23

• can declare acts of Congress to be unconstitutional, so require them to be repealed - Defense of Marriage Act ruled unconstitutional in United States v Windsor in 2013; legalised same-sex marriage.

Question 24

What is the significance of checks and balances?

Answer 24

• encourages political players to deploy tactics to get around constraints eg executive agreements.
• president subject to most, showing framers’ fears.
• can affect timing of presidential initiatives; try to push through legislation in first 2 years eg Obama secreting ACA by early 2010; danger of divided gov.
• much politics at national level characterised by gridlock (fault of system, or fault of players?); even during emergence of Covid, it took several days of negotiation to get original $2.2tn stimulus package.
• not all have equal significance; most powerful are rarely used/successful; even presidential veto declining - Obama 12, Reagan 78.

Question 25

What is the formal amendment process?

Answer 25

Route 1:
- 2/3 both Houses propose/vote on constitutional amendment; sends the proposed amendment to the states for ratification.
- 3/4 states ratify proposed amendment, either by their legislatures or through special ratifying ‘conventions’.
Route 2:
- 2/3 state legislatures ask Congress to call convention for proposing amendments as stipulated in Article V.
- States send delegates to convention, where they can propose amendments.
- 3/4 states ratify given amendment approved by the convention, either by their legislatures or special ratifying conventions.

Question 26

What are significant facts about constitutional amendments?

Answer 26

• 27 successful; first ten = 1791 Bill of Rights.
• wide range of topics, but several concern individual rights/voting; 26th amendment lowered voting age to 18.
• one amendment overturned earlier one; only 25 ‘live’ ones.
• passed is response; amendment restricting president to two terms passed after 13 year presidency of FDR, who died in office in 1945.
• not all have equal significance - 23rs gave Washington DC votes in presidential Electoral College (not as important as enfranchising women/ending slavery).

Question 27

What are some key amendments from the Bill of Rights?

Answer 27

• 1st - freedom of religion, speech, press, assembly.
• 2nd - right to bear arms.
• 8th - banned use of ‘cruel and unusual punishment’.

Question 28

What are some key amendments after the Bill of Rights?

Answer 28

• 13th (1865) - abolished slavery.
• 14th (1868) - gave citizenship to former enslaved people; included ‘equal protection’ and ‘due process’ clauses.
• 17th (1913) - direct election to Senate.
• 27th (1992) - any increase to congressional salaries could only happen after next election.
• numerous have been proposed; ERA was passed by Congress, but failed to get state ratification within allocated timeframe.

Question 29

Arguments that it’s too hard to amend constitution formally.

Answer 29

• high thresholds - 27 over 200 years.
• current Constitution contains provisions some consider outdated eg 2nd amendment/Electoral College.
• prevents Constitution being updated; not all groups protected; complexities of passing amendment makes it possible to achieve.
• too much informal amendment takes place via SC (unelected/unaccountable).
• no national constitutional convention has ever been held.

Question 30

Arguments that the constitution isn’t too hard to amend formally.

Answer 30

• high thresholds -> change happens with wide consensus/agreement.
• obsolete clauses can be repealed (Prohibition); constitutional problems could be reformed; 2nd Amendment capable of sensible adjustment including banning sale of certain weapons.
• rights of many groups can be equally well defended by federal/state laws; debate around which groups’ rights should be protected eg women/children supported, transgender people less so.
• SX often takes notes of public opinion eg LGBTQ+ rights.
• current amendment procedure allows for federal dimension to be present via national constitutional convention.

Question 31

What are some examples of informal amendments?

Answer 31

• District of Columbia v Heller (2008) - explicit right to private gun ownership.
• right of those stopped by police to o remain silent/avoid self-incrimination.
• extension of free speech to political activity.
• rights of LGBTQ+ Americans in Obergefell v Hodges (2015).
• extending right of privacy to mobile phone date in Carpenter v United States (2018).

Question 32

What is federalism?

Answer 32

• system of gov in which bodies such as states share power with national gov.
• reserved powers of states in USA.

Question 33

Which areas do states still retain important roles in?

Answer 33

• ability to legislate on wide range of areas including local taxes/access to abortions - several conservative states eg Arkansas have tightly restricted abortion laws.
• issue of death penalty - murder in Texas can leave you on Death Row; illegal in NY.
• presidential election - Electoral System remains state based.
• states run/conduct elections.
• in times of crisis, governors/states at forefront, but require national involvement; coronavirus revealed differing approaches (Ohio quick to lockdown, Florida much slower, Arkansas didn’t issue full lockdown).

Question 34

What are the key rights enshrined in the Constitution?

Answer 34

• 1st Amendment - freedom of speech, expression, press, religion.
• 2nd - bear arms.
• 4th - right against unreasonable searches.
• 5th - right to not incriminate oneself.
• 6th - swift, fair, public trial.
• 7th - receive jury trial in civil lawsuits.
• amendments that have protected against slavery and racial/gender discrimination in voting.

Question 35

What happened in Schenck v United States (1919)?

Answer 35

• two socialists convicted under Espionage Act of distributing leaflets urging ppl to disobey draft.
• SC concluded that 1st Amendment doesn’t protect speech that could create clear/present danger; leaflets likely to disrupt conscription process.
• Justice Holmes used example of shouting fire in a crowded theatre.

Question 36

What happened in Morse v Frederick (2007)?

Answer 36

• involved Alaskan high school student who was suspended for supposedly promoting use of illegal drugs; student claimed free speech had been violated.
• SC ruled that schools can regulate speech where it undermines educational mission or threatens safety.

Question 37

Arguments that the Constitution protects individual rights well.

Answer 37

• many key rights explicitly protected (Bill of Rights); entrenched, inalienable, very difficult to overturn.
• SC judgements have often discovered new rights in elastic clauses including equal protection/cruel and unusual punishment.
• doesn’t prevent other rights being protected in other ways; equal pay/disability access issues covered by federal laws eg Equal Pay Act 1963, Americans with Disabilities Act 1990.
• USA has adapted well to changing notions of rights; many updated through judicial review; in areas such as abortion, some argue it’s a rebalancing of rights between the unborn and women.

Question 38

Arguments that the constitution doesn’t protect individual rights well.

Answer 38

• many rights/groups not directly protected eg free/fair elections, rights of children/people with disabilities.
• SC interpretations are subjective/alter over time; uncertainties/contradictions.
• laws passed by Congress can be revered.
• USA has some significant differences; no European democracies still permit death penalty/grant entrenched rights to gun owners.

Question 39

How significant is federalism?

Answer 39

• ensures one body isn’t too powerful; US population too large/diverse to have one body legislating.