The nature of the US Constitution Flashcards
positives to the vagueness of the constitution
+ allowed supreme court to make imperative judgements to make sure the Constitution remains relevant today eg Roe V wade them SC announced that the 14th amendment right of ‘liberty’ included the right for a woman to terminate her pregnancy.
Eg Obergefell V Hodges SC judges the 14 amendment guarantees same sex couples the right to marry, effectively making same-sex marriage legal in 50 states
drawbacks to the vagueness of the constitution
- Is the interpretation opportunity as broad as the founding fathers would’ve wanted? – conservatives argue that the founding fathers wouldn’t have supported same sex marriage or abortion
- The vagueness of Article 2 has allowed the president to dominate US gov, particularly in foreign policy at the expense of Congress which has struggles to interpret its power as broadly
positives to the seperation of powers
+ the con creates a gov of separated institutions sharing powers and limiting power of the federal gov over the states
+ checks and balances between the three branches coupled with the short election cycle of the House of the Representatives ensure that the gov works in the interests of the people whom it represents
+Overlap of powers between executive and legislature means there needs to be bipartisan cooperation between the parties especially during a divided gov
drawbacks to the seperation of powers
- Some aspects don’t work how the Framers envisage eg the growth of federal over at the expense of the states, gridlock leads to government shut downs when the president and Congress can’t agree on a budget. 6-7% of bills became law in the 1980s whereas this dropped to 2-3% because of the inability of the two parties to compromise regularly on legislation.
why did the founding fathers make the const difficult to amend
so that it isn’t subject to the political whims of the day, and that the Constitution should remain the higher law of the land.
what does Article 5 mean in the const
two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution
what were the 4 objectives to the constitution
1 - prevent oppressive rule
2 - entertain liberty
3 - economic freedom: america should be a meritocracy
4 - religious freedom
what are the 3 key features of the consitution
codified
vagueness and specificity
entrenched
codified constitution
- authoritative set of rules written in a single text
- Articles 1-3 set out powers of gov
- the federal gov does not have unlimited power but only the power granted by the const unlike the UK
- ENUMERATED POWERS AND RESERVE POWERS AND CONCURRENT
what are enumerated powers
ARTICLE 1 SECTION 8
what the federal government can do and override state govs on
eg declare war, borrow money, do anything ‘Necessary and proper’
what are concurrent powers
powers shared by state and gov
eg tax, road works and courts
what are reserve powers
10th amendment
what the state gov has control over
eg education, marriage, driving, alcohol
Blend of specificity and vagueness
implied powers - federal gov powers that can be implied from the enumerated powers
eg ‘to provide for the common defence and general welfare’ means that congress has the power to collect taxes
the ‘Necessary and Proper Clause’ - article 1, section 8 which allows the federal gov to stretch its powers beyond its enumerated powers
why is vagueness good?
- it can be applied to present day
Provisions are entrenched
entrenchment means ‘protect from attack’ ie those who tried to change or abolish the american people
very complicated process to change it
there have only been 27 amendments in total since 1787 - the first 10 are the bill or rights
what are the types of amendement process
1 - 2/3rds of house and senate propose change, 3/4 of the state legislatures have to agree; has been used 26 times
2 - 2/3rds of the house and senate propose, ratifying conventions in 3/4 of the states; has been used once in the 21st amendment (which appealed the 18th amendment saying alcohol was prohibited)
what is flag desecration
if you take a flag down or damage one you cna get arrested. Wanted to be an amendment but the supreme court said it was free speech
whats an example of when all three branched were required to play a role in governance
OBAMA CARE - patient protection and affordable care act
1 - both houses had to pass the bill identically because both houses have equal power
2- President signed it and the executive branch rolled out provisions to carry out the law
3 - opponents to the law saw it as unconstiutional which left the courts to dispute the law eventually the court announced its decision and upheld the laws provisions
what are the 3 branched of US gov
Legislative - makes laws - congress: senate and house of reps
executive - carries out laws - predident, vice pres and cabinet
Judiciary - interprets law - supreme court
what was the aim of Obama care
intendedt o improve access to health insurance
was objected to because of the increase in taxes and insurance premiums
what does popular sovereignty mean
all political power derives from the people
what did Richard Neustad say about the seperation of powers
‘they are separate institutions sharing power’
info on congress
The Capitol building is home to congress
435 members sit in the house of reps
100 members sit in congress
total 535 members
what was the Philadelphia Convention
aimed at revising the Articles of Confederation but instead they made a whole new charter of government: the constitution
advantages to the amendment process x3
1 - the lengthy process makes it less likely that the con will be amended for temporary issues (amendment 18 and 21 are examples of this going wrong)
2 - it ensures that both federal and state govs must favour a proposal
3 - super majorities make sure that a small majority cannot over power
disadvantages to the amendment process x 3
1 - makes it overly difficult for the con to be amended which means that outdated provisions can’t be changed eg electoral college
2 - very difficult to get congress and states to agree to get a supermajority which means it is virtually impossible with a 0.2% success rate
3 - is it actually what the founding fathers wanted?
“Each generation” should have the “solemn opportunity” to update the constitution “every nineteen or twenty years” thus allowing it to be “handing on with periodical repairs from generation to generation, to the end of time”
why is the constitution is the way it is
it was an attempt to avoid concentration of government power but also its dilution - not too strong not too weak. they needed all power to be checked - unlike when the British were there and their power was unchecked so they were oppressive
what is constitutionalism
all aspects of the gov and its policies must follow the principles in the constitution and its amendments. The con has near universal acceptance
