Unit 5 - The Consitution - American ✅ Flashcards
Benefits of a difficult amendment process
- protects the rights and liberties from tyranny of the majority and elected politicians and other institutions are unable to remove individual rights
- any changes have to have the consent of many different groups within the US and therefore the changes can be said to have a high degree of legitimacy
- provisions within the Constitution are difficult to change and it is deliberately difficult to pass a constitutional amendment ; the principles are able to ensure as they were intended by the Founding Fathers
Disadvantages of a difficult amendment process
- the difficult amendment process ca lead to inflexibility and the Constitution cannot be easily changed over time ; the 2nd Amendment; the right to keep and bear arms - many would argue it is no amongst a good idea
- it can be ill- equipped to deal with changing circumstances and the role of the US in the world
- they elevate the importance of unelected judges over the elected legislature ; when the Supreme Court decided the result of the 2000 Presidential Election
Why is it amended so rarely ?
- the process of amendment is difficult
- role of judicial review and ability of reinterpretation
- unwillingness to change such a revered document
- vague nature of the constitution allows for evolution
- polarisation between political parties !
Separation of Powers
Neustadt (1960) wrote ‘the constitutional convention of 1787 is supposed to have created a government of separated powers - it did nothing of the short . Rather it created a government of separated institutions sharing power ‘
There are three branches of government which are the legislature, the judiciary, the executive and it was put into place to prevent tyranny
No person can be in more than one branch of government at the same time
e.g. in 2008, Senator Obama was elected President and he had to resign from the Senate
Limited government : a principle that The size and scope of the federal government should be limited
The weakness of parties creates more opportunities for pressure groups to exercise influence
Congress —
Congress checking Executive
- congress can amend , block and reject items or legislation recommended by the President
- power of the purse ; all money wanting to be spent needs to go through Congress
- senate has the power to ratify treaties negotiated by the President
- senate confirms appointments made by the President to executive branches
- they have the power of investigation e.g. Bill Clinton was impeached in 1998
Executive checking Congress
- the President has the power to VETO bills passed by Congress ; George Bush used the VETO 11 times
- President can recommend legislation to Congress in the State of Union Address
Judiciary —
Judiciary checking Congress
- the power of judicial review which can declare Acts of Congress to be unconstitutional and therefore void
e. g. in 1998, the Clinton vs New York City declared the line item veto act as unconstitutional
Congress checking judiciary
- there is the power of impeachment and removal from office
e. g. in 1988-89 , three judges removed including Walter Nixon for perjury - Congress can propose constitutional amendments and overturn a decision of the Supreme Court
e. g. in 1896 the Supreme Court declared federal income tax to be unconstitutional and Congress proposed the 16th amendment which granted Congress the power to levy income tax
Executive —
Executive checking the judiciary
- he nominates all federal judges to the courts and furthermore they can hope to mould the outlook of the Court for years to come
- the President has the power of pardon ; in 1974, President Ford pardoned his predecessor - Nixon for any crimes he may of committed in the Westgate Affair
Judiciary checking the Executive
- this is very similar to the Judiciary checking Congress ; review over the executive branch
- here, the power of judicial review lends to the ability to be able to declare actions of any member of the executive branch to be unconstitutional
CASE STUDY- MCDONALD VS CHICAGO
Focuses on the right to bear arms as protected under the 2nd Amendment and incorporated by the Due Process Clause of the 14th Amendment
The case won 5-4 and the Supreme Court held that the 2nd Amendment reiterated need for 2nd amendement
CASE STUDY- TEXAS VS JOHNSON
Johnson was originally charged with desecrating respected objects , nevertheless the conviction was overturned as the 1st amendment protects symbolic speech and the government cannot fully define was a respected object is
Supreme Court ruled that Johnson’s liberties were violated as a result of the arrest and fine
CASE STUDY- NATIONAL DEFENCE AUTHORISATION ACT 2012
This act specifies budget and expenditures of the US department of Defence and it authorised $662 in spending
Rights were not being upheld as sub section 1021-1022 authorised indefinite military detention of persons the government suspects of involvement in terrorism ; including US citizens
Federalism and how is it evident in the constitution ?
Federalism is the separation of the structure of the government into two more or less autonomous layers and the powers of each are entrenched in the constitution
- equal representation in the Senate
- 10th Amendment
- electoral college for electing the President
- 3/4 approval of state legislatures for amendments
- states can make legislation different from federal government
Advantages of a federal system
It permits diversity
Creates more access points in the government
Well suited for large countries
Disadvantages of a federal system
It can easily mask economic and radical inequalities
It can make solving national problems much more difficult
Too much conflict between federal and state levels of government cause problems
Too bureaucratic and difficult to know where to access
Federalism has been eroded (7)
- constitutional protections of state power are meaningless as the federal government can take control in virtually any policy area , with limited likelihood that they will be blocked
- imposition of federal demands on the states through measures such as ‘no child left behind’
- Supreme Court decisions such as the striking down of state laws banning same sex marriage (Orbergefeld vs Hodges)!
- agencies such as FBI, CIA and NSA give power to federal government
- federal government can compel the states to adopt standardised testing and centralised educational reforms or face massive funding cuts
- Obama administration has expanded the scope of the federal government through the health care insurance mandate and has sought to restrict state power
E.g. legal action against Arizona - González vs Raich showed that federal government has final say on drugs policy
Federalism is still evident (4)
- states have different laws ; Gonzalez vs Oregon
- states have a great deal of control over health, education and law and order
- limited involvement of the federal government in the provision of public services
- new federalism attempted to reverse the trend towards the dominance of the federal government over the states - increased use under successive Presidents from Nixon onwards of financial measures , such as block grants which have greater independence to the states (they can spend money how they see fit)
