Unit 4 Topic 1 - The Constitution

Question 1

Explain the background of the Constitution

Answer 1

• 1776: the 13 colonies on the eastern seaboard declared their independence from Great Britain in the Declaration of Independence
• 1776-83: the war of independence followed between the former colonies and Great Britain
• 1781: the newly independent colonies decided to establish a confederacy – a loose association of states in which almost all political power rest with the individual states – by the Articles of Confederation
• 1787: because the confederacy had proved a disaster with insufficient national government power, the Philadelphia Convention convened to draw up a new constitution
• This involved making a number of compromises in terms of the allocation of national government power and state power

Question 2

Explain the compromises of the Constituion

Answer 2

• The form of government
o Under British control the colonies had been ruled under a unitary government in which political power rests with one central government
o From 1781 they had been ruled by a confederal form of government, one in which virtually all political power rests with individual states
o The compromise was to devise a new form of government – federalism, in which political power is shared between central and state governments
• Representation of the states
o Large population states wanted representation in Congress to be proportional to gain more representatives
o Small population states wanted equal representation
o The compromise was to have a Congress of two houses – House of Representatives and the Senate
o The House was to have proportional representation, the Senate equal representation for all states
• Choosing the President
o Many suggestions, some though the president should be appointed, some directly elected by the people
o The compromise was to have the president indirectly elected by an Electoral College
o The people would elect the Electoral College and the Electors within the Electoral College would choose the President

Question 3

Explain the codified nature of the Constitution

Answer 3

• The new Constitution was to be a codified constitution, this would be in sharp contrast to Britain’s uncodified constitution. It would enumerate certain powers that the federal government had and leave the rest to the states or the people. It would contain a deliberately complicated and demanding amendment process.
• Although the US Constitution is codified, much of it is vague and have evolved over centuries, e.g. the Constitution allows:
o ‘to provide for the common defence and general welfare of the United States’
o ‘to make all laws which shall be necessary and proper for carrying into execution the foregoing powers’
• These two clauses – the ‘general welfare clause’ and the ‘necessary and proper clause’ – have allowed the powers of the federal government to expand significantly over time. The Constitution has changed since the late 18th century by virtue of:
o Formal amendment: e.g. permitting a federal income tax (16th 1913)
o Interpretative amendment: by the Supreme Court’s power of Judicial review
• However, just because the US has a codified constitution it does not mean that everything to do with US government and politics is in the Constitution, there is nothing about:
o Presidential primaries
o Congressional committees
o The president’s cabinet
o The Executive Office of the President
o The Supreme Court’s power of judicial review

Question 4

Explain the principle of the separation of powers

Answer 4

Separation of Powers
• Philadelphia divided the government into three branches:
o Legislature: Congress, makes laws
o Executive: Headed by the President, carries out the laws
o Judiciary: Headed by the Supreme Court, enforces and interprets the laws
• Founding Fathers believed these three branches would:
o Be independent yet co-equal
o Be spate in terms of personnel
o Operate checks and balances on each other
o Promote the concept of limited government – Jefferson ‘government is best which governs least’
• The framers believed these institutional structures would prevent tyranny, vital that the law making, law executing and law enforcing bodies and their personnel remained separate. Introduced Separation of personnel; no person be permitted to be a member of more than one branch at any one time, hence in January 2009:
o Obama resigned from the Senate to become President
o Joe Biden resigned from the Senate to become vice-president
o Hilary Clinton resigned from the Senate to join Obama’s cabinet as Secretary of State
• In 2010 US solicitor Elena Kagan was appointed to the Supreme Court, resigning from the executive in order to join the judiciary

Question 5

Explain the checks and balances of the Constitution

Answer 5

• The functions of the branches are not completely separate, ‘separation of powers’ is a faulty term, it is the institutions not the powers which are separated
• Richard Neustadt: ‘The Constitutional Convention of 1787 is supposed to have created a government of “separated powers”. It did nothing of the sort. Rather, it created a government of separated institutions sharing powers.’
• This sharing of powers is called checks and balances – each branch exercises control over the actions of the other branches

Question 6

Explain the checks by the Legislature on the Executive and Judiciary

Answer 6

On the Judiciary:
• Amend/delay/reject the President’s legislation
• Override the president’ veto
• Control of the budget
• Senate’s power to confirm numerous presidential appointments
• Senate’s power to ratify presidential treaties
• Declare war
• Investigation
• Impeachment, trial, conviction and removal from office of any member of the executive branch

On the Executive:
• Senate’s power to confirm appointments made by president
• Initiate constitutional amendments
• Impeachment, trial, conviction and removal from office of any member of the judiciary

Question 7

Explain the checks of the Executive on the Legislature and the Judiciary

Answer 7

On the Legislautre:
• Recommend legislation
• Veto legislation
• Call Congress in to special occasion

On the Judiciary:
Appointment of judges
• Pardon

Question 8

Explain the checks by the Judiciary on the Legislature and the Executive

Answer 8

On the Legislature:
• Judicial review: the power to declare Acts of Congress unconstitutional

On the Executive:
• Judicial review: the power to declare actions of any member of the executive branch unconstitutional

Question 9

Analyse the system of checks and balances

Answer 9

• Judiciary on executive. SCOTUS can declare presidential vetoes and executive orders unconstitutional.
o Strengths: While in office Obama has been ruled against over 20 times e.g. 9-0 National Labor Relations Board vs. Noel Canning. Even though the president can bypass Congress, he can still be held accountable.
o Weaknesses: Obama has the option to nominate judges to tip the balance to match his political view - especially important with the death of Scalia making the Court unlikely to rule against the president. Also, in 8 of these cases the alleged ‘overreach’ occurred during the Bush administration. These judges are unaccountable and are not elected.
• Legislature on executive
o Strengths: Can overturn presidential vetoes. Congress can block, amend or reject legislation eg. It passed but significantly amended the Obamacare bill. Congress can also scrutinise the executive through committees eg Benghazi House Committee following Clinton’s poor handling. Can also refuse to ratify treaties e.g. the Senate failed to ratify a UN treaty on disability rights in 2012.
o Weaknesses: Overturning presidential vetoes are very rare as needed supermajorities and therefore may allow the President too much power e.g. none have occurred during Obama’s tenure. Also the President can distort the intent of Congress through signing statements eg. ABA has claimed that 56% of Obama’s raise constitutional issues.
• Legislature on judiciary
o Strengths: Has the power of impeachment and trial at the Senate. Eg. The House impeached federal judge Thomas Porteuous for corruption. Also, Congress can introduce constitutional amendments to, in effect, overturn a SCOTUS decision. Eg. Congress unsuccessfully attempted to reverse decisions on issues such as flag burning. The Senate has to approve Presidential nominees to Supreme Court Justices e.g. Robert Bork rejected by the Senate, essentially on the basis of his extreme-wing opinions
o Weaknesses: In reality, very limited checks on the judiciary by legislature as constitutional amendments are very rare to be passed. Very difficult for Congress to hold judges to account as they have a life tenure and the need for an independent judiciary. Too strong checks on the judiciary may undermine its existence as an independent body.
• President on Congress
o Strengths: President can veto legislation passed by Congress e.g. Obama’s veto of the Keystone Pipeline XL. President also has the pocket veto where the President fails to approve a measure which can’t be overridden e.g. pocket veto of Clean Power Plan. The President can recommend new laws to Congress e.g. Obama recommended the Climate Bill. Finally, President can call an emergency session of Congress e.g. last done by Truman in 1948 over civil rights legislation

Question 10

Explain the Federal division of powers

Answer 10

• Federalism involves decentralisation, appropriate for a country as large as the USA, allows for national unity and regional local diversity.
• ‘Federalism’ or ‘federal’ are not found in the Constitution, they are written in by:
o Enumerated powers. The branches of government have their own powers. E.g. federal government has powers over currency, inter-state commerce, foreign affairs. E.g.2 president has the power of commander in chief
o Elastic clause. Congress has power to ‘make all laws necessary and proper’
o Concurrent powers. States and government have shared powers. For example, the power of tax, setting up courts etc.
o 10th Amendment. This gives all remaining powers ‘to the states and to the people’
• What the Constitution does is to:
o Give certain exclusive powers to the national government. Only the federal government can, for example, coin money, negotiate treaties, tax imports, or maintain troops in peacetime
o Give guarantees of states’ rights, for example the states are guaranteed equal representation in the Senate, that their borders will not be changed without their consent and that the Constitution cannot be amended without the agreement of three quarters of them
o Make clear that there are also states’ responsibilities. Each state must recognise the laws of each other state by, e.g. returning fugitives
• All this the Constitution did, but what it wisely failed to do was lay down any definite line between the concurrent powers of the national and state governments. This means that the concept of federalism has been able to develop over the subsequent two centuries.

Question 11

Explain the development of federalism

Answer 11

• Federalism is a changing concept, the most significant changes which have led to the development of Federalism have been:
o Westward expansion
o The growth in population
o Industrialisation
o Improvements in communication – by road, rail, air, post, telephone etc.
o America’s foreign policy and world power status
• These factors have led to an increased role for the federal government, but during the final third of the 20th century there was a distinct move towards state power
• As a result of policies pursued by party administrations – especially the Republicans in the last 40 years - have seen the states gain a significant increase in their autonomy an power, decentralisation and states’ rights are once again political buzzwords

Question 12

Explain ‘New Federalism’

Answer 12

• Nixon and Reagan wanted to (i) reverse trend towards increasing central govt power and (ii) to devolve power back to states. They did this through
o General Revenue Sharing. The State and Local Assistance Act 1972 meant ‘categorical grants’ were replaced with ‘block grants’ which could be used at the state’s discretion.
o Anti-poverty programmes. Reagan made big cuts in federal anti-poverty programmes

Question 13

Explain ‘New Federalism’ under Clinton

Answer 13

• Economic boom. State tax revenues were buoyant and there was less need for federal state subsidies
• Republican control. Controlled both houses and passed laws to increase power of the state. E.g. Unfunded Mandates Act 1994 prevented the federal government imposing regulations on states unless it paid for it. E.g.2 Welfare Reform Act 1996 passed most responsibilities to the states

Question 14

Explain Federalism under Bush

Answer 14

• It was expected that the Republican Senator of Texas for six years would favour decentralisation, but during the Bush administration (2001-09), federal government spending grew at a rate not seen since the days of Johnson in the 60s – a Democrat
• There are many reasons for this expansion of the federal government (spending rose by a third) under Bush:
o Homeland Security Act 2002. Followed 9/11 and set up the Dpt. of Homeland Security which allowed the federal government to direct state governments to provide protection for potential terrorist targets. Also led to greater spending
o Economy. Economic downturn led to fall in state tax revenue so many turned to the federal govt. For funding. Bush also took control of two large mortgage companies and issued a $700bn ‘bailout’ package for Wall Street.
o No child left behind Act 2001. National federal standards of education meant loss of funding for schools if targets not meant. Meant federal govt. Interfering with education, one of the enumerated powers and greater spending
o Medicare. Expanded Medicare, estimated to cost $400bn in its first 10 years. Ironic as Medicare was first introduced by Democrat, Johnson
o Iraq War and Wall Street Crash 2008
• Not all Republicans endorsed Bush’s federal expansion, some derided such programmes as ‘big-government conservatism’
• Bush was criticised by conservative Republicans for not vetoing expensive federal government programmes, he failed to use a single veto in his first term (the first President to do so since Martin Van Buren 1837-41)
• Bush was also criticised for what many saw as the federal government’s feeble initial response to Hurricane Katrina in 2005
• In 2008 when the Bush administration authorised the secretary of the treasury, Henry Paulson, to take control of two troubled, privately owned by government-sponsored mortgage companies – known colloquially as Fannie Mae and Freddie Mac – there was more criticism heaped on Bush
• This was followed by a Bush white house sponsored $700bn bailout package for wall street to alleviate the effects of the credit crunch, the legislation passing Congress with many Democrat votes
• In 1996 Clinton commented that the era of big government was over, but Bush brought it back

Question 15

Explain Federalism under Obama

Answer 15

• Whereas Bush focused on war and terrorism, the Obama administration is more focused on domestic issues as a way of delivering his ‘change’ agenda
• War and security against terrorism are conducted exclusively by the federal government; domestic policy is increasingly in the domain of states the following trends can be seen:
o The ratio of state and local government employees to federal employees is the highest since before Roosevelt’s New Deal in the 30s
o Federal government assistance to the states increased from 3.7% GDP in 2008 to 4.6% in 2009
o Money from the federal government accounted for 30% of state government spending in 2009 compared with 25% in 2008
o Of the $787bn of the 20009 Economic Stimulus Package, one third went to or through the state governments (under Bush’s 2003 package just $20bn went to the states)
• There are reasons as to Obama’s increase in federal money to the states:
o The re-authorisation of the State Children’s Health Insurance Program (SCHIP) 2009
o Higher education expenditure (e.g. Pell Grants 2010)
o $4.35bn invested in the Race to the Top programme to boost education in the states
• Obama was criticised for his view of federalism, Republicans saw the passage of healthcare reform legislation as ‘the end of federalism’ and there were those in the Tea Party movement who felt Obama was more of a socialist than a federalist
• In exit polls at the 2010 midterms, 74% Republicans and 60% independents agreed with the statement that ‘the federal government is doing too many things better left to business and individuals’

Question 16

Explain ‘Crazy Quilt Federalism’ under Obama

Answer 16

• Obama has worked both ways in terms of the scope of federal government.
• ‘Small govt’ evidence:

o Emissions policy. Obama allowed 13 states to set stricter auto emission standards than federal law. Gave states more freedom.
o Cannabis. Allowed states to create their own laws over the use of marijuana e.g. Colorado. Ineed four states have legalised the recreational use of cannabis in defiance of federal law
o Voting rights. The obligation on some states to obtain ‘pre-clearance’ from the Justice Department before changing their voting laws was lifted in Shelby v Holder and a number have brought in requirements regarding e.g. voter ID
• ‘Big govt’ evidence:
o Obamacare. Seen by many as the ‘death of federalism’ as it expanded role of federal government e.g. meant everyone requires health care insurance. The Affordable Care Act requires states run health insurance exchanges, or the federal government runs them itself
o Immigration. The federal government has sought to stop some states enacting their own immigration legislation, e.g. the legal action taken by the Justice Department against Arizona in Arizona v US
o Education. the Obama administration’s ‘Race to the Top’ programme has given states a financial incentive to adopt the ‘Common Core’ educational standards

Question 17

What are the consequences of Federalism?

Answer 17

• Variation in penalties for law breaking from state to state
• Complexity of the American legal system, having both national and state courts
• Each state having not only its own laws and courts but also its own Constitution
• Complexity of the tax system: income tax (federal and state); state property taxes; local sales taxes
• State-based elections, run largely under state law
• The frequency and number of elections
• Political parties being decentralised and largely state based
• Regional diversity (South, Midwest, Northeast) and regional considerations when making appointments to, for example, the cabinet, or when ‘balancing the ticket’ in the presidential election

Question 18

Outline the Constitution

Answer 18

• The constitution is now made up of the original seven articles plus 27 amendments, 10 of which were almost immediately added to form the bill of rights. Of the original 7 articles the first 3 are the most important:
o Article 1: the legislature, including the powers of Congress
o Article 2: the executive, including the powers of the president
o Article 3: the judiciary
• The Bill of Rights enumerates fundamental rights and freedoms, the most significant:
o 1st: freedom of speech and the press, and the right to peaceful assembly
o 2nd: right to keep and bear arms
o 4th: freedom from unreasonable searches
o 5th: rights of accused persons (including the ‘due process’ clause)
o 8th: freedom from cruel and unusual punishments
o 10th: rights reserved to the states and to the people
• Since 1791, 17 further amendments have been added, two of these – the 18th and 21st – cancel each other out. The 18th introduced the prohibition of alcohol 1919 and the 21st repealed it 1033. Of the remaining 15 the most important are:
o 14th: guarantees of ‘equal protection’ and ‘due process’ applied to all states
o 16th: Congress given power to tax income
o 17th: direct election of Senators
o 22nd: two term presidential election
o 25th: presidential disability and succession

Question 19

Examine the amendment process

Answer 19

• A two stage process:
o Proposals to amend to the Constitution can be made either by Congress with a 2/3 majority in both houses or by a national Constitutional Convention called at the request of 2/3 of state legislatures (the latter has never been used)
o Ratification can be made either by ¾ of the states holding a Constitutional Convention. The latter has only been used once for the 21st in 1933.

• 6 amendments have been proposed by Congress but failed the ratification process, the most recent to guarantee equal rights for women, proposed in 1972 but ratified by only 35 states – three short of ¾. Many amendments have failed at the proposal stage, e.g.:
o Require the federal government to pass a balanced budget
o Impose term limits on members of Congress
o Forbid desecration of the American flag
• Why the Constitution has been so rarely amended:
o Founding Fathers deliberately created a difficult amendment process
o Vagueness of the Constitution has allowed the document to evolve in interpretations without the need for constant formal amendment
o The Supreme Court’s power of judicial review allows the Court to amend the meaning of the Constitution while the words remain largely unaltered
o The reverence with which the Constitution is regarded makes politicians cautious of tampering with it
o The 18th Amendment was repealed by the 21st just 14 years after passing

Question 20

Assess the advantages of the amendment process

Answer 20

o Short terminism. High levels of rigidity means principles of constitution safeguarded from short lived popular sentiment e.g. gun control in light of recent shootings. Therefore, act as mechanism to protect state and citizen rights?
o Protects rights. Process requires nationwide appetite due to supermajorities, stopping a tyrannical government e.g. Federal Marriage Amendment by Bush failed to be ratified on 4 occasions and went against public opinion.
o Works. Only 27 amendments have been passed and the US constitution is the world’s oldest functioning constitution. Have been few calls to change the process.

Question 21

Assess the disadvantages of the amendment process

Answer 21

o Outdated. Constitution becomes outdated as desirable reforms fail to be ratified. E.g. Every Vote Counts to abolish EC to reduce wasted votes. Gallup poll found 62% wanted to scrap the EC. Amendment process means politicians focus on political expediency rather than, say, improving the electoral system. E.g.2 lack of gun control even though the US has most mass shootings in the world. Further evidence politicians considering own agenda rather than good of the people
o Uncertainties. Within the procedure e.g. length of time required to secure a ¾ majority of the state legislatures (Supreme Court said a ‘reasonable time’), or whether states are permitted to rescind their ratification.
o Supreme court. Difficulty in updating the constitution has encouraged the Supreme Court to take this role. They’re unelected and unaccountable!

Question 22

Examine Constitutional Rights

Answer 22

• Constitutional rights are either freedom to, or freedom from. In order for these rights to be effective, the government must take steps to ensure that the rights are effectively protected. With the federal government all three branches need to be involved.
o Congress can pass laws to facilitate these rights – laws that enhance the rights of, for example, racial minorities. It can also through the committee system and investigative powers call the executive branch to account regarding the way it implements the law that Congress has passed.
o The executive branch needs to implement the laws and programmes which Congress passes and establishes in order to ensure that legislation is followed by delivery.
o The Supreme Court has an important role in safeguarding the constitutional rights of citizens through the power of judicial review.

Freedom of/to:
Speech (1st)
Religion (1st)
The Press (1st)
Assembly (1st)
Keep and bear arms (2nd)
Remain silent (5th)
Speedy and public trial (6th)
Vote when over 18 (26th)

Freedom from:
Unreasonable searches (4th)
Cruel and unusual punishment (8th)
Excessive bail (8th)
Slavery and involuntary servitude (13th)

• The Supreme Court plays the most vital role in guaranteeing the effectiveness of citizens’ constitutional rights. There have been times when the court has been ineffective at this:
o The Court’s 1857 decision in Dredd Scott v Sandford, which stated that blacks could not become citizens of the US
o Plessy v Ferguson 1896 upheld segregation of the races on public transport on the basis of ‘separate but equal’
• There are however numerous examples recently of how the court has upheld Constitutional rights:
o Abortion rights for women Roe v Wade
o Rights of arrested persons Miranda v Arizona and Dickerson v United states 2000
o Rights of racial minorities Brown v Board of Education of Topeka
o Gun rights District of Columbia v Heller
• There are two sides to this though, some would say that by guaranteeing abortion rights for women for example, the court failed to protect the rights of the unborn child; that by interpreting the 2nd to guarantee an individual’s right to own guns, the court failed to protect other citizens from gun crime and violence; that by upholding the separation of church and state, and banning prayers in public schools, the Court failed to uphold citizens’ right to the ‘free exercise’ of religion under the 1st.
• Another argument proposes that having once safeguarded a right, the Court may later back track on this:
o Gratz v Bollinger 2003 which declared the University of Michigan’s affirmative action admission programme to be unconstitutional
o Gonzales v Carhart 2007 which banned a certain abortion procedure having upheld it in 2000

Question 23

Explain where Constitutional rights have been enforced

Answer 23

• The Supreme Court plays the most vital role in guaranteeing the effectiveness of citizens’ constitutional rights. There have been times when the court has been ineffective at this:
o The Court’s 1857 decision in Dredd Scott v Sandford, which stated that blacks could not become citizens of the US
o Plessy v Ferguson 1896 upheld segregation of the races on public transport on the basis of ‘separate but equal’
• There are however numerous examples recently of how the court has upheld Constitutional rights:
o Abortion rights for women Roe v Wade
o Rights of arrested persons Miranda v Arizona and Dickerson v United states 2000
o Rights of racial minorities Brown v Board of Education of Topeka
o Gun rights District of Columbia v Heller
• There are two sides to this though, some would say that by guaranteeing abortion rights for women for example, the court failed to protect the rights of the unborn child; that by interpreting the 2nd to guarantee an individual’s right to own guns, the court failed to protect other citizens from gun crime and violence; that by upholding the separation of church and state, and banning prayers in public schools, the Court failed to uphold citizens’ right to the ‘free exercise’ of religion under the 1st.
• Another argument proposes that having once safeguarded a right, the Court may later back track on this:
o Gratz v Bollinger 2003 which declared the University of Michigan’s affirmative action admission programme to be unconstitutional
o Gonzales v Carhart 2007 which banned a certain abortion procedure having upheld it in 2000

Question 24

Examine where Constitutional rights have not been enforced

Answer 24

• Compromise. The enforcement of the rights of the individual could be at the expense of the states. E.g. legalising same-sex marriage undermines the rights of states according to the 10th Amendment which gives all remaining powers to states and people.
• Other branches. Dependence on the enforcement of other branches can further erode rights, e.g. the right to attend a non-segregated school, established by Brown, was only realised through congressional action over 10 years later.
• Politicisation. Supreme Court unable to cope with sustained resistance e.g. the 15th Amendment asserted the right of all to vote but this was only realised 100 years later through the passage of the Voting Rights Act

Question 25

What are the strengths of the Constitution?

Answer 25

o Supreme court. Has upheld civil liberties in face of threats to the Bill of Rights e.g. in Heller and Obergefell. Also, becoming a judge through the Senate Judiciary Committee is very gruelling and transparent.
o Partisanship. Founding Fathers wanted partisanship in order to prevent a tyrannical government. Split ticket voting is common and demonstrates the will of the people to have a limited government. Government can still function eg. 2011 debt limit rose even though many commentators predicted no compromise. Opinion polls show Americans satisfied with accountability
o Amendment process. Rigidity has made the Constitution outdated, the process has uncertainties and has put too much power in hands of court
o Checks and balances. Power is shared amongst the branches of government, preventing one branch from having too much power. E.g. legislature holds the executive to account through congressional overrides if the president vetoes a bill. Likewise, executive has the ability to veto bills e.g. Keystone Pipeline XL.

Question 26

What are the weaknesses of the Constitution?

Answer 26

o Supreme court. SCOTUS has too much power through judicial review as can strike down any laws passed by a state or Congress e.g. Obama’s EPA limits on mercury pollution was struck down. The court can also can impede with personal or local issues eg. Obergefell v Hodges on gay marriage which contradicts states rights (10th amendment). The Court has also been accused of bias; it has been politicised through the appointment process and The Alliance for Justice said “ the Court has radically rewritten laws in order to shield big business”.
o Gridlock. Increasing polarisation (Republicans moving right) meant 2013 was least productive year in Congress. Government shutdown put 800,000 people out of work over Obamacare. Government shutdown used to be a precaution not a panic button for party leaders.
o Amendment process. Protects from short termism and protects rights well. See previous page for details.
o Checks and balances. They are ineffective. See next page for greater analysis.