The nature of the US constitution Flashcards
What did the constitution do to the three federal branches of government?
Codified and completed them
When was the constitution finished?
Sep 1787
List the three key features of the constitution
- It is codified
- It is a blend of specificity and vagueness
- Its provisions are entrenched
What is codification?
The process of writing down a constitution in a single authoritative document
What does the constitution contain?
It is a collected and authoritative set of rules outlining the rules of American government and politics
List the three branches of government that the constitution created and set out the machinery of
- The legislature, which is responsible for making laws
- The executive, which is responsible for carrying out laws
- The judiciary, which is responsible for enforcing and interpreting the laws
What do the first three articles of the constitution do?
Explain how the three branches of government will work and what powers they have
What does article I do?
Establishes Congress as the national legislature, defining its membership, the qualifications and election of members, as well as its powers
What does article II do?
Invest all executive power into a president elected by the electoral college
What does article III do?
Created the SC and gave it the implied power of acting as the umpire for the constitution
What is the supremacy clause?
The portion of article VI which states that the constitution, federal laws and treaties shall be the supreme law of the land
What type of powers do the first three articles of the constitution give to the three branches of the federal government?
Enumerated
What are enumerated powers?
Powers delegated to the national government under the constitution. These are enumarated in the first three articles of the constitution
Why does the the federal government not have unlimited power in the way that parliament does?
Because it is restricted to the powers given to it by the constitution
Why is the vagueness of the constitution an advantage?
Because it has allowed the constitution to evolve over time without the need for formal amendment
How has the vagueness of the constitution proven to be a disadvantage?
The lack of clarity has led to disputes over what can be considered constitutional
What are implied powers?
Powers of the federal government that the constitution doesn’t explicitly mention, but which are reasonably implied by the enumerated powers
When has the vagueness of the constitution been a cause for war?
The lack of a comment on slavery in the constitution was a major contributor to the breakout of the American Civil War
Where are many of the implied powers deduced from?
The necessary and proper clause, the final clause of article I section 8, which empowers Congress to make all laws necessary and proper to carry out the duties of the federal government
Why is the necessary and proper clause often called the elastic clause?
Because it allows the federal government’s powers to be stretched beyond the enumerated ones
Give an early example of the enumerated clause in action
When the SC ruled that Congress had the right to create a central bank, even though this is not an enumerated power
What is judicial review an example of?
An implied power
What is judicial review?
This is where the SC can declare Acts of Congress actions of the executive or acts and actions of state governments unconstitutional
When was the implied power of judicial review found?
In the 1803 case of Marbury v Madison, as this was the first time that the SC had declared something unconstitutional
Give an example of three enumerated powers held by Congress
- Exclusive powers to legislate for the country
- Tax and duty collection
- The declaration of war
Give an example of three enumerated powers held by the President
- Head of the executive branch
- Commander in chief of the army and navy
- Vetoing legislation
Give an example of an enumerated power held by the judiciary
The right to rule on cases arising under the constitution
Give an example of an implied power held by Congress
The power to draft citizens into the army is implied by the power to raise and maintain an army
Give an example of an implied power held by the President
Acting as commander in chief of the air force, as it did not exist at the time the constitution was written
Give an example of an implied power held by the judiciary
To declare acts of congress or acts of the executive unconstitutional
What are reserved powers?
Powers that are not given to the federal government but are set aside for the states and the people
What does the 10th amendment say?
That those powers that are not delegated to the federal government under the constitution shall be reserved for the states
What idea that did the 10th amendment reinforce?
That the federal government is a government of limited and enumerated powers and that if powers are not delegated specifically to the federal government then they fall to the states/people
What are concurrent powers?
Powers possessed by both the federal and state governments
Give some examples of concurrent powers?
Collecting taxes, building roads and maintaining courts
Where is the supremacy of national law asserted?
In the supremacy clause of article VI
What does the supremacy of national law mean?
That the laws passed by the federal government under its constitutional powers are the supreme laws of the land. This means that any legitimate national law will supersede conflicting state law
What is entrechment?
The application of extra legal safeguards to a constitutional provision that make it more difficult to amend or abolish
Where is the amendment process outlined?
Article V
What was the thinking behind entrenchment?
It ensured that it was possible for the constitution to be changed in the face of emerging developments but that this process was sufficiently difficult so that it wasn’t changed due to whim or circumstance
How many amendments to the constitution have there been?
27 - with the first 10 ratified collectively in the 1791 Bill of Rights
What two stages is amendment split into?
Proposal and ratification
What are the two ways an amendment can be proposed?
- They can be proposed by congress if two thirds of both houses vote in favour
- A constitutional convention can be called by congress at the request of two thirds of the state legislatures
How is a constitutional convention ratified?
By three quarters of state legislatures showing their support
How many proposals have been put to the states and how many have been subsequently ratified?
33 have been put forward and 27 have been ratified. Once amendment has been successfully proposed, it has a good chance of being ratified
What was the thinking behind the Bill of Rights?
Many states had been reluctant to sign up to the new federal constitution, with its potentially centralised government. The BoR were designed to alleviate such concerns by explictly protecting American citizens from a powerful centralised government
List the 5 reasons that amendments are so hard to pass
- The Founding Fathers created a deliberately difficult process so that the constitution didn’t change due to whim or circumstance
- Structural changes to congress and party polarisation have made amendments much harder to pass in the modern era
- The vagueness of the constitution has allowed it to evolve without the need for formal amendment
- The Supreme courts power of judicial review
- Americans are cautious about tampering with the constitution
Explain how the founding fathers creating a deliberately difficult process has led to a low number of amendments
The need for congress and the states to agree and supermajorities makes it hard to amend the constitution. Only 0.2% of proposed amendments have been successful
What has the difficult process of amendment created by the founding fathers managed to largely prevent?
Frivolous and ill thought-out changes to the constitution, with the only notable exception being the 18th amendment, which was revoked by the 21st amendment just 15 years later
Explain how structural changes to congress have led to a low number of amendments
There were only 65 congressmen and 26 senators when the constitution was passed. Far more people are now required to agree on a proposed amendment
Explain how party polarisation has led to a low number of amendments
The Ds and Rs are polarised on most issues, making it difficult for them to agree on proposals
Explain how the vagueness of the constitution has led to a low number of amendments
It has reduced the need for formal amendments
Explain how the SC’s power of judicial review has led to a low number of amendments
This permits to court to interpret the constitution and change the meaning of the words in it - allowing them to make interpretative amendments, which reduces the need for formal amendments
Give an example of the SC being able to make interpretative amendments through judicial review?
They can interpret what it is the constitution means when it forbids cruel and unusual punishment in the 8th amendment
Explain how Americans being cautious about tampering with the constitution has led to fewer amendments
Americans hold the constitution in high regard and are hesitant to change it in any way. The 18th amendment strengthened this sentiment by showing the drawbacks of amendment
Why is it wrong to immediately assume that the difficulty of passing amendments is a failing of the constitution?
It shows cultural bias, assuming that the UK system is better
List the 4 main advantages of the amendment process
- It protects the constitution
- It protects the states and upholds federalism
- Amendments require broad support
- It prevents ill thought out amendments
Explain the advantage of protecting the constitution
The Founding Fathers wanted certain ideas, like checks and balances, bipartisanship, federalism and the separation of powers, to be almost immune from amendment, as they were incredibly fearful of tyranny having just escaped the rule of the British Empire
Give an example of how the constitution was working properly while Trump was President?
He described the checks and balances of the constitution as archaic. The constitutions separation of powers was deliberately designed to limit the power of the President and the other branches. The fact that Trump was frustrated showed that the constitution was fulfilling this goal
Explain the advantage of protecting and upholding federalism
The tenth amendment makes clear the rights of states to their reserved powers. The fact that a constitutional convention can be called be the states prevents Congress from monopolising the amendment process
Explain the advantage of amendments requiring broad support
Supermajorities and the need for state and congressional support mean that genuine consensus is needed before amendments can be passed, as well as bipartisan support at the state and national levels, this makes sense in a country as geographically and culturally diverse as the USA
Why are liberals wrong to point towards the maintenance of the second amendment as evidence for why the amendment process is archaic?
Because only 20% of Americans support revoking it, so it makes sense to have a system where things like this can remain in place
Explain the advantage that it prevents ill thought out amendments
The process is not perfect, as can be seen by the 18th amendment, but is incredibly strong, as this is the only example of an ill thought out amendment
State the 5 main disadvantages of the formal amendment process
- Makes it difficult to amend outdated provisions or incorporate new ideas
- Goes against the concept of a majoritarian democracy
- Enhances the power of unelected SC judges to make interpretative amendments
- States with small populations have too much influence
- Mistakes are still made
Give three examples of well thought out amendments that failed to pass
- The electoral college has produced two President who lost the popular vote in the last 25 years. The electoral college was created as a safeguard against popular democracy, an idea that contradicts the existing system of social democracy . There have been several attempts to amend the outdated electoral college, but none have passed congress
- Despite the broad consensus on women’s rights, an equal rights amendment has not been passed
- There were 134 attempts to pass a balanced budget amendment between 1999 and 2018 and although a majority of the house often voted in favour, it always fell short of the two thirds majority
Explain the disadvantage that the formal amendment process goes against the concept of majoritarian democracy
Modern democracy is based on the idea of majoritarian democracy, making supermajorities appear undemocratic - just 13 of the 50 states have to oppose an amendment for it to fail
Use the failure of the flag protection amendment to explain how the formal amendment process can be seen as undemocratic
It required 50% of the vote in congress but fell short of the two thirds supermajority.
Use the failure of the equal rights amendment to explain how the formal amendment process can be seen as undemocratic
It passed congress but fell short of getting enough state support. 13 states, representing just 24% of the population, thwarted the will of 37 states, representing the will of 76% of the population
Explain the disadvantage that the formal amendment process enhances the power of unelected SC judges
Nine unelected judges have complete control over deciding what is and isn’t constitutional
Give two examples of where supreme court decisions have significantly altered the US constitution
- Roe v Wade gave women the right to an abortion
- Hamdan v Rumsfeld ruled that the Bush administration did not have the right to try suspected terrorists in military tribunals at Guantanamo Bay
Why is it so difficult to overturn constitutional rulings made by the SC?
Because they have to be overturned by a constitutional amendment. This is extremely difficult and so has only happened once in 1913 with the 16th amendment
Give an example of when a mistake has been made despite the lengthy and difficult amendment process
The 18th amendment banned alcohol in 1918. This was quickly found to be a mistake and so was repealed by the 21st amendment in 1933
What is the US constitution the basis of?
Government in the US
What does it act as?
The supreme law of the land
How many articles does it consist of?
7
When was the constitution ratified?
1788
When did it come into force?
1789
What does article V do?
Entrenches the constitution
What do the bill of rights list?
Entrenched rights
Why are these rights entrenched?
Because they are constitutionally protected and therefore cannot be changed on a legislative whim
What makes the constitution vague?
Its age and the implied powers
What do implied powers give congress the power to do?
Make necessary laws and use powers that the founders had not thought of
Which part of the constitution sets out the enumerated powers of congress?
Article I, section VIII
Why is Article I, section 8, clause 18 significant?
Because it gives congress the implied powers, giving it the power to make all laws ‘necessary and proper’ in order to rule
What has happened to the implied powers of congress over time?
They have grown since when the constitution was written
What has this allowed congress to do?
Make laws concerning matters not mentioned in the constitution
Give an example of this
An implied power of congress is to regulate the sale of substances, and the banning of the sale of substances, like drugs
How is clarity a positive aspect of the nature of the constitution?
There is a clearly outlined structure of government with separation between the three branches, preventing any one person or group from having too much power
How is simplicity a positive aspect of the nature of the US constitution?
It is codified, therefore making it easier for citizens to understand the constitution and their rights
How is vagueness a positive aspect of the nature of the US constitution?
It allows it to adapt to the modern world as it can be interpreted to mean different things
How is entrenchment a positive aspect of the nature of the US constitution?
This preserves the intentions of the FF and prevents populist movements from making drastic or ill thought out changes
How is vagueness a negative aspect of the nature of the constitution?
- Has the potential for conflict due to differing interpretations
- The final say goes to 9 unelected SC justices, this has become increasingly concerning due to the politicisation of the SC in recent years
How is extent of the power of the federal government being unclear a negative aspect of the nature of the constitution?
The vagueness of the elastic clause has caused regular conflict between the states and the federal government
What do articles I-III of the constitution do?
Clearly outline 3 separate branches of federal government and their power
What principle do they therefore set out?
The separation of powers
What does article I grant all legislative powers to?
Congress
What does article I outline?
The election processes for each chamber and the powers alloted to them
What does it say about the house?
That members are to be elected every two years. Each state has a minimum of one representative and the total number of representatives is based on the population size of each state
What does it say about the senate?
Members of the senate are to serve 6 year terms with elections held every 2 years for 1/3 of the seats. There are two senators per state
What does article II do?
- Invests all executive power in a president and their VP. who will serve a four year term
- Both of them will be elected by an electoral college
What does article III do?
- Grants judicial power to the SC and some smaller courts
- There is no term limit for judges
- SC justices are to be appointed by the president and approved by the senate
What do articles IV-VI do?
Set out the concept of federalism and the powers of the states
What does article VII do?
Outlines the ratification process for new states to join the union
What does article IV do?
- Sets out the rules for relationships between the states
List these rules
- All states have to respect the laws of other states
- All citizens of states should be treated fairly and equally in other states
- The rules for admittance of other states are outlined
- All states should have republican governments, rather than being led by a King or gentry
What does article V do?
Sets out the process for amending the constitution
What does article VI do?
- Contains the supremacy clause that makes the constitution the highest law in the US
- Says that no religious test shall ever be required as a qualification for public office
What is the first amendment?
The right to freedom and speech and religion
What is the second amendment?
The right to bear arms
What is the fourth amendment?
The right not to have ‘unreasonable seizures and searches’
What is the sixth amendment?
The right trial by jury and the right to a lawyer
What is the eighth amendment?
The right not to have cruel and unusual punishments
What is the tenth amendment?
All power not granted to the federal government is granted to the states and the people
What the 13th, 14th and 15th amendments?
They were all passed after the Civil War. They abolished slavery and established civil rights for ex-slaves
What did the 19th amendment do?
Gave women the right to vote
What did the 22nd amendment do?
Limited the president to two terms in office
What did the 26th amendment do?
Changed the voting age from 21 to 18
When was the most recent amendment?
1992
List the three main advantages of the amendment process?
- Makes it harder for any one person or populist group to make an amendment
- Protects’ states rights
- Protects the key principles of the constitution as the FF intended
Give an example of the amendment process stopping an individual from changing the constitution?
Trump tweeted that he could end birthright citizenship, which is protected by the 14th amendment, with an executive order but was stopped from doing this
What is birthright citizenship?
Automatic citizenship granted to someone born in the USA
How is preventing populist changes a benefit?
If it were as easy to change as Trump intended then there could be serious repurcussions for civil liberties in the US. This means that amendments are those that are required by the whole country
How does the amendment process protect states’ rights?
States with a small population are able to maintain their rights against the larger states, this is one of the main reasons for the continuation of the electoral college
Give some examples of the principles that the amendment process has protected
Regular elections and the separation of powers
What are the two main disadvantages of the amendment process?
- It is undemocratic
- States can be overrepresented
How is it undemocratic?
Because 13 states can block the will of the people
Give an example of this
Feminist groups have been trying to introduce and ERA (Equal Rights Amendment) since 1921. It received a supermajority in the house (1971) and the senate (1972) but has been continually blocked by a small group of conservative states refusing to ratify the amendment
Give some examples of states changing populations
The population of some, like Idaho, have grown, while others, like Illinois, have shrunk
How are the small states overrepresented?
Because they have an equal say to the large states, meaning some populations are overrepresented while others are underrepresented
Give a statistic to highlight this
The population of Wyoming is around 579,000, while California is around 59, 537,000 yet both have an equal say to one another in the amendment process
What do article I-IV of the constitution collectively do?
Set out the powers of the states and the federal government
