The Constitutional Framework Of US Government (US) Flashcards
What are the origins of the US constitution?
Based on the Articles of Confederation.
Weakness in the articles became apparent after Shay’s rebellion.
Led to the constitutional convention in Philadelphia 1787.
The 55 attendees drew up the US constitution.
What were the key features of the US constitution?
- Emphasised represtantive government not democracy -
President was elected indirectly through the electoral college and by popular vote, the senate was initially chosen by state legislatures until this was changed the 13th amendment. - feared mass democracy.
- It was a product of its time and culture - male christian slaveowners reluctant to shift power from the wealthy elite.
- Slavery was was intrinsic to the economy and the society of several states.
- It was about the framework of government and not individual rights - individual rights were addressed in The Bill of Rights (1791).
- It was a compromise.
- There was an implicit fear of power
- The Constitution left much unsaid and a lot was vague.
- Designed to be long lasting and not easily changed or overturned.
- Constitution was to be sovereign.
In what ways was the constitution a compromise?
- Connecticut compromise: The senate was to have equal representation from each states, were as the House of Representatives would have representation based on population.
- Compromise between states with large slave populations - 3/5s rule.
- Compromise between Founding Fathers like Hamilton who wanted a strong central government and Jefferson who wanted power to lie with individual states.
What is the necessary and proper clause?
Allows congress to make laws necessary and proper to carry out federal duties and laws.
Example of congress applying the necessary and proper clause of the constitution?
- Immigration Act 1924, reflected racial bias in the country and banned the entry of all Asian people into the Court.
1965, Congress passed the Votings Right Act which banned racial discrimination in voting.
Example of the vagueness of the constitution being a weakness:
- Constitution said nothing about slavery.
- Led to a bloody civil war in 1860s.
- Slavery is only banned in the 13th Amendment (1865).
Example of the original constitutional not being democratic:
Didn’t give women the right to vote.
19th Amendment 1920 gives women the right to vote.
In what case was the precedent of judicial review determined?
Marbury v Madison 1803.
- gives the Supreme Court the power to declare laws and executive actions as unconstitutional.
Example of the constitution causing government gridlock:
The separation of powers was based on the notion of mutual agreement.
Government shutdown Dec 2018 - Jan 209 lasted 35 days - a result of congress’ refusal to pass the budget which would lead to policy in areas like immigration.
What are the two main principles of the US constitution?
- The separation of powers.
- Checks and balances.
Argument that the principle of the separation of powers is very significant in the US constitution:
- Every branch is clearly checked and limited by the other two.
- No person can serve simultaneously in Congress and the legislature - Hilary Clinton had to resign as senator for New York when appointed Secretary of State.
- Prevents one branch having too much power - President needs to work with congress and ensure polecat is compatible with the constitution.
- Helps preserve the notion go an independent and non-political judiciary.
Argument that the principle of the separation of powers is not significant in the US constitution:
- The VP is also senate president, they ave the acting vote in the event of the tie. ( Mike Pence used it to confirm Betsy Devos as education secretary in 2017).
- A president with a supportive supreme court and whose party also controls congress can wield a lot of power.
- US judiciary is heavily politicised.
- President has the power of the pardon which overlaps with judicial powers.
What are the presidential checks on congress? Examples of congress impeaching federal justices:
- Presidents veto acts or resolutions passed by congress.
-Presidents often threaten the veto to dissuade congress from passing a measure.
-Presidents can issue executive orders to by pass the need for formal legislation.
-Presidents can use their commander-in-chief role to deploy US troops overseas, avoiding congressional approval of declaring war.
Example of presidents vetoing acts from congress.
Obama issued 12 votes during his 2 two term.
Prudent Trump vetoed a resolution revoking his declaration of a national emergency at the US-Mexico border.
Example of the president threatening the veto to dissuade congress from passing legislation:
- Obama made 4 veto threats in his 2015 State of the Union Address.
( over Iran sanctions, diluting the Affordable Care Act, loosing Wall Street Oversight and tightening immigration controls)
Example of a President issuing executive orders to bypass the need for formal legislation:
- 2017, trump introduced a ban a several Muslim majority countries.
Example of the president using their commander in chief role:
2001 & 2003, George w Bush ordered the invasion of Afghanistan and Iraq.
What are the presidential checks on the courts:
- President nominates all federal justices and those to the Supreme Court.
- The president can issue pardons and commutations to those convicted of federal crimes.
Example of a president nominating Supreme Court justices:
Trump appointed Neil Gorsuch. Brett Kavanaugh and Amy Coney Barrett.
How many death row inmates did Biden pardon in his final month as president?
31 - on federal death row.
What are the congressional checks on the president?
- Presidential veto can be overturned by a supermajority in both houses.
- the senate must confirm by a simple majority presidential appointments to the administration, including the judiciary.
- The threat of a senate rejection is often as powerful and more frequent than the presidential veto.
- Congress has the power of the purse.
- Congress can decline to pass legislation desire by the president.
- The nuclear option of impeachment.
-Congress has the power to block treaties negotiated by the President. - Congress can launch investigations into presidential actions when concerns are raised.
Example of the presidential veto being overturned:
Congress overturned Obama’s veto of the Justice Against Sponsors of terrorism Act.
- Trump had one of his ten vetoes overridden.
Example of the senate refusing to confirm a judicial nomination from the president:
- The last Supreme Court nominee to be formally rejected was Robert Bork 1987.
- 2013, the senate blocked Obama’s appointment of Robert Wilkins to the District of Columbia court of appeals.
Example of senate threatening the veto:
- Bidens controversial 2020 pick of Neera Handed as Director of the Office of Management and Budget was withdrawn when it was clear she would not receive enough votes in the senate.
Example of congress using the ‘nuclear option’ of impeachment:
- 2019 the House voted to proceed with the impeachment trial against Trump.
- Voted to impeach him again on the 13th January.
Example of congress blocking treaties negotiated by the president:
2012, the senate failed to ratify the convention on the Rights of Persons with disabilities.
Example of congress launching an investigation into presidential actions:
- 2019, the House oversight reform committee launched an inquiry into a potential conflict of interest over increased spending by the US Air Force on regaling at a struggling Scottish airport near a resort owned by Trump.
Congressional checks on the courts:
- Congress can impeach federal justices from office.
- Constitutional amendements can initiated to overturn Supreme Court verdicts.
Examples of congress impeaching federal justices:
- 2010, Louisiana Federal Judge Thomas Porteous was successfully impeached from office for corruption in a near unanimous vote.
Example of congress passing a constitutional amendment to overturn Supreme Court verdicts:
- 1896, the court found national income tax to be unconstitutional.
- This was reversed by the ratification of the 13th amendment in 1913.
Judicial checks on the president:
The courts can rule presidential actions unconstitutional and therefore illegal.
Example of the courts finding the actions of the president as unconstitutional:
- 2020, two cases involving the tax and financial records of Trump: Trump v Mazars and Trump v Vance.
- Court ruled that presidents do not enjoy absolute immunity from state criminal subpoenas.
Judicial checks on congress:
- Courts can declare acts of congress to be unconstitutional and require them to be repealed.
Example of the court declaring an act of congress unconstitutional:
- 2013., Defense of Marriage Act was ruled unconstitutional in United States v Windsor.
- Marked an advance for the legalisation of same sex marriage across the UK.
How does the president get around the checks and balances from congress?
- Negotiating executive agreements rather than full treaties with international powers ( Obama’s nuclear deal with Iran).
-trump called a national emergency to get extra funding for his border wall, without the express approval of congress.
Examples of presidents loosing control of congress during midterms:
- Trump lost control of the House in 2018.
- Obama lost the senate in 2014.
When did America come closest to calling a national constitutional convention?
1992
32 states petitioned congress for a convention to propose a balanced budget amendment - fell two states short.
How is the constitution ratified starting in the senate:
- 2/3s majority in the senate and the house.
- 3/4s of state legislatures must the ratify.
Second route of amending the constitution, starting with the states:
- A constitutional convention called by 2/3s of states.
- 3/4s of states must ratify.
How many successful amendments have there been to the constitution?
27
When was the last major amendment to the constitution?
26th 1971.
Lowered the minimum voting age from 21 to 18.
Key amendments of the Bill of Rights (1791) :
First Amendment: Freedom of speech, religion, press, assembly.
Second Amendment: Right to bear arms;
Eighth Amendment: Banned the use of cruel and unusual punishments.
Key amendments after the Bill of Rights:
13th (1865): Abolished slavery.
14th (1868): Gave citizenship to former enslaved people.
17th (1913): introduced direct election to the senate.
Example of an amendment that was proposed but did not get through congress:
- The Equal Rights Amendment - would have embedded women’s rights into the constitution.
Argument that the constitution is too hard to formally amend:
- Few amendments have been passed: 27 in 200 years.
- Current constitution contains provisions that might be considered outdated (2nd Amendment).
- Precents the consolation from being updated (women and people with disabilities are not protected by the constitution).
- Informal amendments by unlisted SCOTUS justices.
- Formal amendment process under Article 5 has has never been held.
Argument that the constitution is not too hard to formally amend:
- High threshold for amendment means that changes only happen when there is a wide consensus.
- Obsolete clauses of the constitution can be repealed - prohibition.
- Rights of groups can be defended through federal laws.
- Supreme Court often takes not of the direct public opinion when reaching conclusions.
- The current amendment process allows for a federal dimnension to present.
Examples of the Supreme Court making informal amendments to the constitution:
- District of Columbia v Heller (2008) - right to private gun ownership.
- Citizens United Case - allowed corporations and interest groups to enjoy first amendment rights.
- Obergefell v Hodges (2015) - the rights of LGBTQ+ Americans.
What is the 10th Amendment (the federalist clause)?
All powers not expressly delegated to federal government are reserved to the states.
Landmark moments in the argument over states rights:
- Civil War (1861-5)
- New Deal of the 1930s and WW2 meant an expansion of national government.
- 1970s and 80s saw a backlash against big government ( Nixon and Reagan began talking of new federalism. )
- Expansion of big government with Medicare Bush’s No Child Left Behind Act (2002), Patriot Act sets up a new executive department for Homeland security.
(federalism has overall been weakened.)
What rights do state still hold?
- can legislate in areas such as taxes and access to abortion. ( North Dakota and Arkansa have restrictive abortion laws ).
- Death-penalty is state based.
- The presidential election.
- State run and conduct election ( decide on wether to hold caucuses or primaries and decisions over direct democracy).
Why does the constitution not tackle the issue of representation of states?
- The gap between the smallest states and the largest states has grown since the 1780s.
- Half of senators are elected by just 16% of the population.
Examples of the Electoral college failing to represent the popular vote?
2000 and 2016.
Examples of rights explicitly enshrined in the constitution:
1st Amendment - rights to free speech and espresso.
2nd Amendment - right to bear arms.
4th Amendment - right against unreasonable searches.
5th Amendment - right not incriminate yourself.
6th Amendments - right to a swift and fair public trial.
Schenck v United States (1919):
- 2 socialists convicted under the espionage act after distributing leaflets urging people to disobey the draft.
- Supreme Court decided that the 1st amendment does not protects speech that could create danger that congress or another body had the power to prevent.
Morse v Frederick (2007):
- Found against the protection of free speech.
- Alaskan student had a banner reading “bong hits 4 Jesus’ at an event during Winter Olympics.
Court found that schools can regulate school speech.
Argument that the constitution protects individual rights very well:
- Key rights are explicitly protected in the Bill of Rights.
- Supreme Court has discovered new rights in the elastic clauses of the constitution.
- Constitution doesn’t prevent other rights being protected through acts of congress - eg the Lilly Ledbetter Fair Pay Act (2009).
Argument that the constitution does not protect individual rights less well:
- Many rights are not explicitly protected in the constitution. (Disability and children).
- Supreme Courts interpretations are subjective and change overtime.
- Laws passed by congress can be reversed and lack the embeddedness of constitutional rights.
- US has some bizarre approaches to rights - eg the death penalty and the rights to gun owners.
