US constitution Flashcards

Question

define judiciable

Answer 1

Judiciable- A constitution which contains a higher form of law, and therefore allows other law to be judged against it and be deemed wither 'constitutional' or 'unconstitutional'.

Answer 2

Entrenched- A constitution which is protected from change through a legal process. For the US Constitution this is the two-stage amendment process, which requires supermajority approval from Congress and the states.

Answer 3

Unlike the British constitution the new US Constitution was codified, and all written in one document. This means that the Constitution itself is the source of all political power in the USA and any powers that the federal or state governments hold are given to them by the Constitution. Over time 7000 words of the Constitution and its amendments have been altered and amended, but only through interpretation of the wording of the original document. As a codified constitution, the Constitution is judiciable, meaning that judges can interpret actions and laws against the Constitution to judge whether or not they are 'constitutional'.

Answer 4

Article I- The Legislative Branch- outlines the structure, powers and elections of Congress Article II- The Executive Branch- outlines the structure, powers and elections of the president Article III- The Judicial Branch- outlines the structure and powers of the Supreme Court Article IV- The States- outlines the relationship between the states and admittance of new states Article V- Amendments- outlines the amendment process to the US Constitution Article VI- The United States- outlines the supremacy of the Constitution Article VII- Ratification- outlines the conditions for the ratification of the US Constitution

Answer 5

The new constitution was also entrenched. This means it was difficult to amend as the document is protected by law. The US Constitution is protected by its own Article V, which outlines the amendment process. This process ensured that the Constitution could be changed in response to any emerging need but would not be so malleable that it would change frequently. Today, there have only been 27 amendments, 10 of which were passed together in 1791, forming the Bill of Rights. The last one was in 1992, which ratified that elected officials in the House of Representatives could only be compensated after election. This proposal was made 202 years before!

Answer 6

Enumerated powers- Powers which are specifically and explicitly written down in the US Constitution.

Answer 7

Implied powers- Powers which are not specifically granted in the Constitution but are assumed or implied from the wording of this document and the powers it does grant.

Answer 8

'Necessary and proper clause'- A clause within Article I of the Constitution which allows Congress to imply any powers which are necessary for it to be able to carry out the enumerated powers. Also known as the 'elastic clause'.

Answer 9

Supermajority- A required majority of more than half, usually in a vote. The US Constitution specifies supermajorities of two thirds and three quarters for a variety of processes.

Answer 10

Appropriation bills- A proposed law from Congress that authorises spending of government, and therefore taxpayers' money.

Answer 11

Given the short length of the Constitution, it is invariably vague throughout much of the document. There are debates as to why this is so, but given that the Founding Fathers had differing views on the role of the states, slavery, the power of the central government and the importance of a Bill of Rights, it is most likely that the vague the language allowed for compromise of the delegates and agreement of the states. This has meant that while the Constitution is codified, not every power is outlined within it. Most commonly, the vague nature of the Constitution is seen through the difference between enumerated powers and implied powers. Enumerated powers are quickly identified in the first three articles as those powers explicitly given to each branch of government. In Article I, Congress is explicitly given the power to 'lay and collect Taxes, Duties, Imports and Excises', which was an important development from the Articles of Confederation in which the central government had no power over tax and therefore relied on states for money. However, Congress is also given the power to 'make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers', meaning that it had the right to make any law which allowed the members of Congress to carry out their enumerated powers. This vague clause, known as the 'necessary and proper clause' has been used to extend the powers of Congress over time.

Answer 12

Enumerated power: - powers that are enumerated are simply those which are written down, in this case the constitution - they outline specifically the power a branch can exercise - the constitution outlines in article 2 that 'the president shall be Commander-in-chief of the Army and Navy of the United states'. Obviously, with no air force at the time as it was not included Implied power: - there are the powers which are interpreted from those laid out in the constitution - they are gained from interpretations of the vague language of the constitution - following a memorandum from the justice department in 1947, the president is accepted as the Commander-in-chief of the United states Air force, as well as the marines and Coast Guard

Answer 13

McCulloch v Maryland 1819 In 1818, the state of Maryland passed an Act which would impose a tax on banks that were not created by the Maryland government. This would have taxed the Second Bank of the United States, which Congress had created only 2 years before this, as the only bank in Maryland not set up by the state government. The Supreme Court was asked to judge whether Congress had the right to set up such a bank within its constitutional powers. The decision allowed for Congress' actions, effectively granting implied powers to Congress. In the McCulloch v Maryland case, Chief Justice John Marshall wrote '...let it be within the scope of the Constitution...(that) which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional'. This supported the view that Congress, and other branches, have 'implied powers' from the Constitution in addition to those explicitly laid out.

Answer 14

Not all of the Constitution is as vague as the 'necessary and proper' clause. The specificity of the 2nd Amendment, the right to bear arms, is an example. This could be seen to be one of the reasons that achieving meaningful gun control has been difficult for so many presidents. It can be seen that Article I is more detailed and specific than Article II, which is not surprising given the Founding Fathers fears of a strong executive- they gave Congress explicit and specific powers to try and ensure it could not be usurped by the president. Ironically, doing this has allowed for wider interpretation of presidential power over the last two centuries, given the vague language in Article II, thereby expanding this branch considerably. Comparatively, Congress has found itself more restricted by the language of Article I, which is almost too specific to allow for interpretation. However, for the Constitution to have survived for 200 years, the vagueness of the document is important in allowing it to adapt to changing circumstances and therefore remain relevant.

Answer 15

While the Founding Fathers aimed to follow Montesquieu's principle of 'separation of powers', Professor Richard Neustadt has argued that they did not manage this- 'rather it created a government of separated institutions sharing powers'. This meant that while the three branches over government had separate personnel and, eventually, buildings, many of their powers had required two branches to act together in order to exercise them. There are few truly 'separated' powers in the Constitution that just one branch of government can exercise alone. It is therefore difficult to divide the two principles of 'separation of powers' and 'checks and balances' within the Constitution.

Answer 16

congress (legislative branch) - checks on the president: write legislation, override presidential veto, power of the purse, the power to declare war, impeachment of the president, ratify treaties exercised by the senate and ratify appointments exercised by the senate checks on the supreme court: impeachment of the justices, propose a constitutional amendment, creation of the lower courts and ratify judicial

Answer 17

congress (legislative branch) - checks on the president: write legislation, override presidential veto, power of the purse, the power to declare war, impeachment of the president, ratify treaties exercised by the senate and ratify appointments exercised by the senate checks on the supreme court: impeachment of the justices, propose a constitutional amendment, creation of the lower courts and ratify judicial appointments president (executive branch) Article 2 - checks on congress: suggest legislation, sign/veto legislation and act as commander in chief of the armed forces checks on the supreme court: power of pardon and nomination of judicial appointments Supreme court (judiciary) Article 3 - checks on congress and the president: judicial review

Answer 18

Congress has a number of constitutional powers which can limit the actions of the president or prevent his action entirely. These checks include legislation, veto override, power of purse, declare war, impeachment, ratify treaties, ratify appointments.

Answer 19

Legislation- The key role of Congress is to produce legislation. Much of the legislation is suggested by the president at his State of the Union Address, which outlines his legislative agenda for the year. However, as the legislative branch, Congress can create, amend, delay, and even reject legislation. In every State of the Union Address between 2010 and 2015, President Obama asked Congress to pass immigration reform, yet no legislation had been passed by the time he left office, much to his disappointment.

Answer 20

Veto override- Once Congress has passed a law, it goes to the president to sign, and become law, or to veto, which rejects the bill. Congress has the power to override this veto with a two thirds vote in both houses, forcing a bill into law. The need for a supermajority makes achieving the veto override difficult, as it requires both parties to support it. Recent presidents have usually had a few defeats in this way, but of George W. Bush's 12 vetoes, four were overridden and attempts were made to override six more. President Obama's final veto of the Justice Against the Sponsors of Terrorism Act suffered an overwhelming bipartisan defeat with only the Senate Majority Leader Harry Reid voting 'no' to the veto override.

Answer 21

Power of the Purse- Congress has the right to raise taxes and spend the money raised for the national government, which is referred to as the 'power of the purse'. This should prevent the president from spending without the consent of the elected representatives. The 'appropriations clause' in Article I says, 'No money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law', so without a congressional law, money cannot be allocated for federal policies. Article I also states that appropriations bills- those bills that deal with tax and spending- should originate in the House of Representatives, originally the only elected house of Congress. The Senate can make amendments by cannot initiate appropriations bills. In January 2018, the US government shut down because it lacked the money to operate as a result of a dispute with President Trump over President Obama's Deferred Action for Childhood Arrivals (DACA) immigration policy. While the dispute continued, Democrats in Congress held up appropriations bills, eventually leading to a government shutdown

Answer 22

Declare War- While the president is the 'Commander in Chief' and can move troops, Congress is the only branch which can formally declare war on another nation. Congress has used this power 11 times. The last formal use followed the bombing of Pearl Harbor, after which the USA joined the Secong Worl War, declaring war on six individual nations, the last of which being Romania in 1942. Since then, Congress has been asked to authorise the use of troops, most commonly through AUMFs- the Authorisation for Use of Military Force. These ask Congress to give authorisation for the President to use his military, without formally declaring war. The AUMF that followed 9/11 authorised the use of military force against those responsible for the attack. This AUMF has been used by Bush, Obama and Trump to justify their actions in conflicts in 14 countries since 2001.

Answer 23

Impeachment- Congress can bring impeachment proceedings against a president or members of the executive branch for 'Conviction of Treason, Bribery or other high Crimes and Misdemeanours'. The House of Representatives is given the power to bring charges of impeachment against an individual. If this passes a simple majority vote, a formal trial is then held by the Senate. For a person to be found guilty, and therefore removed from office, a two thirds majority vote is needed. Only three presidents have been through the whole impeachment process and all were found not guilty- Presidents Andrew Johnson (1868), Bill Clinton (1997) and Donald Trump (2019). However the House of Representatives has tried to bring impeachment proceedings against other presidents, most notably the Kucinich-Wexler Articles of Impeachment against President George W. Bush in 2008, which passed a vote in the House of Representatives, but languished in the Judiciary Committee until he left office.

Answer 24

Ratify treaties- (Senate only) The Senate approves treaties that have been negotiated by the president by a two thirds vote (67 senators). The Strategic Arms Reduction Treaty (START) in 2010 passed the Senate vote by 71-26 senators. A treaty failing to get two thirds of votes is not ratified, but the Senate can also choose not to vote on a treaty. The Arms Trade Treaty was sent to the Senate in December 2016 but with just weeks until President Trump took office, it never received a ratification vote.

Answer 25

Ratify Appointments- (Senate only) Presidential appointments to the federal courts, federal government departments and ambassadors are all subject to the Senate 'advise and consent'. Over 1,200 posts require Senate approval by a simple majority vote. The Senate has formally rejected nominees, such as the rejection of John Tower as the secretary of defence in 1989 following allegations of womanising and alcoholism. However, it can also shape appointments through its advice. Andrew Puzder was nominated as the secretary of labor in 2017 but withdrew following Senate Majority Leader Mitch McConnell informing President Trump that he did not have the votes to ratify the appointment. Similarly, President Trump's education secretary, Betsy de Vos, only managed approval through the tie-breaking vote of Vice President Mike Pence after the Senate divided 50-50 on her ratification- such a tie break had never been used before on the appointment of a cabinet secretary.

Answer 26

Congress also has the constitutional powers which limit the power of the Supreme Court or can at least shape the nature of the Court in order to try and influence its decisions. Impeach justices- The process for impeaching justices is the same as the process for impeaching a president. This has happened only once to a Supreme Court justice, when Samuel Chase being found 'not guilty' of being partisan in his rulings in 1805. In other federal courts, two cases of impeachment have been brought in the 21st century. Samuel Kent resigned before a verdict could be reached in 2009, and Thomas Porteous was found guilty of bribery and making false statements in 2010. Propose a constitutional amendment- In all Supreme Court rulings, the Court is required to judge whether an issue is constitutional or not. By changing the Constitution, a ruling of the Supreme Court can effectively be overturned, as it changes the document against which the Court has to make its judgement. This has happened only once when in 1913, the 16th Amendment was adopted, allowing for federal income tax to be levied, after the Supreme Court had ruled to deny this in the case of Pollock v Farmers' Loan & Trust Co. (1895)

Answer 27

Creation of lower courts- Congress not only has the power to create lower courts, but it also has the power to regulate the Supreme Court's role in hearing appeals from the lower courts. At its extremes, this is known as 'jurisdiction stripping' (the constitutional ability of Congress to regulate what cases the Supreme Court is allowed to hear). This has proven difficult and controversial, but remains a constitutional check attempted as recently as 2006 with the Military Commissions Act, which tried to remove the Court the power to hear cases from Guantanamo detainees.

Answer 28

Ratify judicial appointments- (Senate only) Presidential nominations to the Supreme Court have a huge impact on the ideological make-up of the Court. A president will most likely choose a nominee with a similar ideology to his own- conservative or liberal- and in doing so he may change the ideology of the court overall. These ratifications follow the same process as with any other presidential nominee. While this does not directly affect the power of the Supreme Court, by allowing or refusing justices on to the Court, the Senate can ensure justices are suitably qualified and, more recently, look to ensure or change the ideological balance of the Court. When Antonin Scalia died in 2016, among the reasons that the Senate did not ratify his proposed replacement, Merrick Garland, was their ideological difference – Scalia was a staunch conservative while Garland was a centrist. The ideological balance of the Court is crucial to the rulings it is likely to give. Justice Neil Gorsuch succeeded Justice Scalia and was approved by the Senate by a vote of 54-45 in April 2017, with all but three Democrats voting against his nomination, and all Republicans voting in favour.

Answer 29

Checks made by the president on Congress In line with Madison's view that 'ambition must be made to counteract ambition', the president was given powers which would allow him to influence and prevent the action of Congress. This was to guard against popular democracy- a way of preventing the people electing representatives who acted only in self-interest rather than in the wider interest of the nation.

Answer 30

Suggest legislation- The US president is directly elected (notwithstanding the Electoral College) and he therefore campaigns on a platform of his own policies. With no direct legislative powers, the Constitution gives him the right to suggest legislation to Congress through the annual State of the Union Address. Trump asked, for example, asked Congress for more money for border security in 2018, in line with his promise to 'build a wall'.

Answer 31

Sign/veto legislation- The president can also choose to sign or veto legislation that is put in front of him by Congress, meaning it becomes law or it is returned to Congress to be amended, to be voted on again or to fail. Both President Bush and Obama used the veto 12 times during their presidency. The threat of the veto alone can be enough to prevent Congress passing a bill to the president or to make Congress amend a bill before it passes rather than have it rejected entirely.

Answer 32

Commander in Chief- As Commander in Chief, the president decides on the stationing and movement of troops and the use of military weapons. When Obama sought approval from Congress for action in Syria, he clearly stated, 'I believe I have the authority to carry out this military action without specific congressional authorization', but he asked Congress nonetheless in the hopes of a stronger and more united decision:- 'I've long believed that our power is rooted not just in our military might, but in our example as a government of the people, by the people, and for the people. And that's why I've made a second decision: I will seek authorization for the use of force from the American people's representatives in Congress.' Barack Obama requesting authorisation for military force in Syria in a speech in the Rose Garden in 2013.

Answer 33

Checks by the president on the judiciary: The president is also given the power to check the judiciary, or at least to try to shape the ideological balance of the Supreme Court and therefore have an impact on the rulings it is likely to give. Power of the pardon- The president has the constitutional right of the 'grant reprieves and pardons', allowing him to excuse someone for a federal crime. This controversial power has few limits or checks upon it. On his last day in office in 2017, Obama granted 330 commutations to non-violent drug offenders, following his pardon earlier that week of Chelsea Manning, who had served 7 years for stealing state secrets. Nomination of judicial appointments- In the same way that Congress can shape the Supreme Court through its ratification or rejection of nominees, the president can try and shape the Court through whom he chooses to nominate. Obama's nominated replacement for the conservative Justice Antonin Scala was centrist Mark Garland, whereas Trump's nominee was the more conservative Neil Gorsuch. Had Garland been appointed, the Court would have probably become more liberal, whereas with Gorsuch's appointment, the Court remained conservative.

Answer 34

Judicial review- The power of the Supreme Court to judge actions of the presidential branch or acts and actions of Congress against the Constitution. The Supreme Court can declare these acts or actions 'unconstitutional' and therefore make them 'null and void'.

Answer 35

The Supreme Court has only one power, which is to check both Congress and the president. This is the power of the judicial review, as suggested through Article III of the Constitution and fully established the case of Marbury v Madison (1803). Judicial review- The Supreme Court has the power to rule whether acts or actions of Congress or the presidency are constitutional. If it rules against Congress or the presidency, their acts or actions may become null and void, meaning they no longer have any legal effect. In the case of Boumediene v Bush (2008), the Court effectively checked both the president and Congress at once, ruling the Military Commissions Act passed by Congress unconstitutional and allowing detainees held at Guantanamo Bay to challenge their detention in US Courts. The Constitution does not only lay down the framework of government in a structural sense. It also outlines the requirements to be a member of each of the branches of government. In order to be electable as the president, a candidate would have to be 35 years old, a natural born US citizen and a resident of the USA for the past 14 years. Madison commented during the convention that the term 'resident' was vague, and the exact interpretation of it is still unclear. For a person to be appointed to the Senate, they would have to be 30 years old, to have been a US citizen for 9 years and must be an inhabitant of the state they are looking to represent in Congress. The 17th Amendment made the Senate an elected, not appointed, house but these requirements still stand for senators. Similarly, members of the House of Representatives must be 25 years old, have been a US citizen for 7 years and must too be an inhabitant of the state they are looking to represent.

Answer 36

In order that the Constitution not become outdated, Article V outlined the process by which the Constitution could be amended. The two-stage process requires a supermajority at each vote to ensure that the Constitution is neither too flexible, nor too rigid. Madison hoped that the process would 'guard equally against that extreme facility, which would render the Constitution too mutable and against that extreme difficulty, which might perpetuate its discovered faults'. He meant that the ability to amend the Constitution was important in case of problems that emerged with it, including any abuse of power by those who held it, but that it was important it not be changed too easily. In order to amend the Constitution, the amendment must go through a proposal stage and a ratification stage. For each one, there are two options of how the amendment can be passed.

Answer 37

National Level- Either- A proposed amendment passes the House of Representatives and the Senate with a two thirds majority OR a national constitutional convention is called on an amendment by two thirds of state legislatures. State Level- An amendment is ratified by a simple majority in three quarters of state legislatures OR an amendment is ratified by a state ratifying convention in three quarters of states. There can be any combination between the two levels to allow an amendment.

Answer 38

Of the four possible routes through which an amendment can be passed, most commonly it is passed by both houses of Congress and ratified by state legislatures. No amendment has so far been proposed by national constitutional convention and how one would even work is something that the Congressional Research Service has raised questions about. Only one amendment has ever been passed through a state constitutional convention. Out of over 11,000 proposed constitutional amendments, only 27 have passed through this process successfully, and a further six through the first stage. Many amendments have been proposed over and over again, with no success. Between 1999 and 2018, a balanced budget amendment was proposed no less that 134 times, of which 18 have been proposed in the 115th Congress (2017-19).

Answer 39

Amendments 1-10 (1791)- The Bill of Rights protecting free speech, the right to bear arms, the right not to self-incriminate, freedom from cruel and unusual punishment, and the rights of states. Amendments 13-15 (1865-70)- The Civil War Amendments ending slavery, guaranteeing equal protection and due process, and expanding voting rights regardless of race. Amendment 16 (1913) Allows Congress to levy income tax. 17th Amendment (1913) Makes the Senate an elected, not appointed house. 18th Amendment (1919) Prohibited the sale, transport and manufacture of alcohol 19th Amendment (1920) Expands voting rights regardless of sex 21st Amendment (1933) Repeals the 18th Amendment (passed by state constitutional convention) 22nd Amendment (1951) Places a two- term limit on the president 24th Amendment (1964) Disallows non- payment of tax as a reason to deny them the vote 25th Amendment (1967) Allows the vice president to temporarily exercise presidential powers if the president is unable to 26th Amendment (1971) Lowers the voting age to 18

Answer 40

Given the clear process, and the number of amendments put forward, it can be difficult to understand why so few of them get through. The necessity for supermajorities within the process is a big stumbling block. At both stages of an amendment, a supermajority of either two thirds or three quarters is needed. In the first Congress (1789-91), there were only 65 people in the House of Representatives and 26 in the Senate. This meant that just 44 House members and 18 senators needed to agree to a proposal to pass the first stage. Today, the House of Representatives has 435 members, needing 287 of them to vote together, and the Senate has 100 members, needing 67 of them to vote together. To achieve this level of consensus and compromise on an amendment is very difficult, especially in an age of two-party politics. Equally, the second stage originally needed just nine of the 13 states to agree, today that is 38 out of 50 states, which is a much more challenging task. Alternatively this means just a small number of House members, senators or states are able to prevent an amendment progressing. In addition to the difficulty posed by the numbers alone, the growth of the USA is also a key factor in explaining the low number of amendments. Not only has the USA expanded geographically and numerically (from a population of 3.5million in 1789 to over 320 million today), it has expanded culturally too, and the states now vary enormously in their beliefs. Research from journalist Colin Woodard in his book 'American Nations' breaks the USA into 11 areas, which ahve distinct cultures, from libertarian 'Far West' and its mistruct of big government to 'Yankeedom' and its acceptance of the 'common good' and as such being more accepting of some government interventions. Therefore, getting agreement on the need for a particular amendment is very difficult.

Answer 41

The difficulty of passing constitutional amendments has created some problems for the US Constitution and its relevance today: 1- Difficulty in ensuring the Constitution remains up to date- There are changes in modern society which are not reflected in the Constitution due to the difficulty in adding them. Former Supreme Court Justice Stevens identified six areas of the Constitution he felt needed amending, including reforming campaign finance, the death penalty and gun control.

Answer 42

2- Outdated aspects of the Constitution still exist- In addition to the lack of up to date additions to the Constitution, there remains a good number of of outdated aspects in the document itself and enforced today. In the centuries since the US Constitution was passed, the USA has changed dramatically. Its population is bigger, technology has changed, and political and cultural ideas have moved on. While some of these changes have been reflected in constitutional amendments, such as changing the Senate from an appointed to an elected house, many outdated aspects remain. As part of the six amendments he felt needed making, former Supreme Court Justice Stevens felt that the 2nd Amendment should become applicable only to those serving in a militia and that capital punishment should be eliminated.

Answer 43

3- Ignorance of minority interests- The supermajority needed to pass an amendment set a high threshold and should prevent the tyranny of a simple majority. However, this also results in it being difficult for a minority to bring about a change to the Constitution, meaning that their rights can be ignored.

Answer 44

4- Power given to the Supreme Court- As the final arbiter of the US Consitution, the Supreme Court hs a vast amount of power interpreting the meaning of the document. The Supreme Court has therefore been able to alter and change the Constitution considerably, yet it is unelected and unaccountable to the people. The Court's decisions can be overturned by a constitutional amendment, but given the extensive difficulty of the process, this has only happened once (the 16th Amendment). Its power is therefore largely absolute, although there are limited checks upon it

Answer 45

Tyranny of the minority- The necessity to gain supermajorities means that it is possible for just a minority of states or members of Congress to prevent an amendment from passing. The Equal Rights Amendment, which would have outlawed discrimination on the basis of sex, passed the House of Representatives in 1971, and the Senate in 1972. Despite twice extending the deadline for states to ratify the amendment, first to 1979, then to 1982, only 37 states ever ratified the amendment, one short of the required 38. The 13 states that did not ratify the amendment accounted for only 24% of the US population at the time.

Answer 46

Despite the difficulty of the formal process, there have been mistakes- Whereas the other disadvantages deal with the difficulty of getting amendments through, it is worth noting that some amendments have made it through that perhaps should not have, bringing into question how robust the process actually is. Notably, the 18th Amendment that was passed in 1920, prohibiting the sale, manufacture and transport of alcohol in response to prohibition movements that had gathered popularity in the USA. Just 13 years later this was repealed, suggesting that the process had failed in this instance to prevent a short lived but popular trend from becoming an amendment.

Answer 47

There are, however, a number of advantages to having a robust amendment process and so few amendments having successfully navigated their way through it: 1- Broad support- Given the need for supermajorities, any amendments that have been passed must have broad support across the USA. In a country that is so vast and diverse, it is crucial that the Constitution should reflect the political and cultural beliefs of as many Americans as possible. It is clearly impossible for the Constitution to please everyone (even the 55 delegates at Philadelphia disagreed) but having broad support ensures that the Constitution remains as relevant as possible.

Answer 48

Prevents short lived trends becoming amendments- The arduous and difficult nature of the amendment process also helps to prevent amendments in response to unique or developing circumstances which may not stand the test of time. This can be especially important in the wake of increased party polarisation that has been evident in the USA and in Congress over the past decades. While prohibition was arguably an error, one in 200 years suggests the process works quite well.

Answer 49

Republican ideals- A prevention of arbitrary rule, such as a monarchy or dictator.

Answer 50

Protects the Constitution and its principles- The principles of the Constitution as embedded in it by the Founding Fathers are what make the American democracy what it is. The acceptance of separation of powers and republican ideals are key to the political system of America. This challenging amendment process means the political ideals as laid down by the Founding Fathers are protected.

Answer 51

Prevents tyranny of large states and single parties- The population of the USA is large but not evenly spread. As a key principle of the Constitution, federalism should ensure that the staes remain an important part of the US political system, recognising each state individually rather than simply by its population (as seen by the Connecticut Compromise). If amendments were made on population alone, the large states could dominate, making the smaller ones irrelevant and easily ignored. With the ratification stage recognising states individually, each has a recognisable worth, as part of US democracy. Similarly, by requiring supermajorities at the proposed level, a single party is prevented from dominating the amendment process and forcing through amendments favoured only by their supporters, such as the balanced budget amendment.

Answer 52

Few changes- The total of 27 amendments to the US Constitution can be seen as an advantage of the difficult process. Not only does it mean that most of the day to day governance is left to Congress or, more likely, to the individual states to decide what is best for their own citizens, it also means that the principles and rights of the Constitution are clear and relatively unchanging. US citizens are acutely aware of their rights as is evidenced by the importance of the Supreme Court in the US political system. Comparatively, UK citizens have no singular document from which to identify their rights and the power of the UK Supreme Court remains subservient, at least in theory, to the government of the day.

Answer 53

It works - While the amendment process might be arduous, a simple advantage is that 27 amendments have made it through. It has allowed amendments to pass when needed but prevented unnecessary amendments from passing

Answer 54

Former Supreme Court Justice Stevens wrote a book in which he suggested six amendments necessary to the US Constitution 1- The 2nd Amendment should be limited in its application to those serving in a militia 2- Congress and state governments can impose campaign finance limits 3- Capital punishment should be abolished 4- Congressional districts should be compact and continuous rather than gerrymandered 5- The anti- commandeering rule, which prevents federal government forcing states to comply with federal law, should be abolished 6-Citizens of a state should be able to bring a case against their state government if that government breaks a federal law.

Answer 55

Limited government, separation of powers, checks and balances, bi-partisanship and federalism

Answer 56

Limited Government - Where can it be seen in the Constitution? - The inclusion of separation of powers and checks and balances -10th Amendment giving states powers -The Bill of Rights guaranteeing citizens’ rights An example of it working today? In the case of Texas v US (2016), an executive order by President Obama regarding illegal immigrants was struck down by the Supreme Court. Congress had failed to pass an immigration reform bill, which demonstrates the president’s inability to make law without Congress. An example of it failing today? Both Presidents Obama and Trump launched air strikes without congressional approval- Obama in Libya, Trump in Syria.

Answer 57

Separation of powers Where can it be seen in the Constitution? Articles I, II and III outline the individual powers of each branch of government -The ‘ineligibility clause’ of Article I, meaning a person can only serve in one branch of government at any given time. An example of it working today President Obama, Vice President Biden and Secretary of State Hillary Clinton all had to leave their seats in the Senate to take up roles in the executive branch. An example of it failing today President Obama negotiated the Joint Plan of Action (the Iran nuclear deal) limiting Iran’s nuclear capabilities in return for the lifting of sanctions. As this was not labelled a ‘treaty’ it did not require approval from the US Senate. The first key principle is the separation of powers- a theory of government whereby political power is distributed among the legislature, the executive and the judiciary, each acting both independently and interdependently. This framework was put in place by the Founding Fathers because of their fear of tyranny. The framers of the Constitution were influenced by the writings of French political philosopher Montesquieu (1689-1755). In his book ‘De L’Esprit de Loix’ (The Spirit of the Laws), published in 1748, Montesquieu argued for a separation of powers into legislative, executive and judicial branches in order to avoid tyranny. ‘When the legislative and executive powers are united in the same person…there can be no liberty’, he wrote. The Founding Fathers had the idea that each of these three independent, yet co-equal branches should check the power of the others. It was decided that no person could be in more than one branch of the federal government at the same time- what we might call ‘the separation of personnel.’ When in 2008, Senator Barack Obama was elected president, he had to resign from the Senate, as did his newly elected vice president Senator Joe Biden. In this sense, the three branches, the institutions of government, are entirely separate. The term ‘separation of powers’ is misleading, for it is the institutions that are separate, not the powers. Professor Richard Neustadt (1960) wrote ‘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’. So the concept is best thought of as the doctrine of ‘shared powers’. And those ‘shared powers’ are what checks and balances are all about for the Founding Fathers set up an intricate system whereby each branch of the federal government would check and balance the other two. This is especially important in terms of the legislature and the executive, which Professor SE Finer (1970) described as being ‘like two halves of a bank note-each useless without the other’.

Answer 58

Checks and balances: Where can it be seen in the Constitution? Numerous powers within Articles I, II and III provide checks and balances An example of it working today President Trump tried to introduce his own healthcare bill in 2017, but despite having a Republican majority in both houses of Congress it failed to pass. An example of it failing today President Obama included the USA in the Iran nuclear deal (JCPQA) and the Paris Climate Accord without asking for Senate approval. The second key principle of the Constitution is checks and balances, a system of government that gives each branch, legislative, executive and judicial, the means to partially control the power exercised by the other branches. This is to resist encroachments on its own powers and to maintain democratic government. The main checks and balances exercised by each branch are detailed below, firstly in a brief outline and then in detail. Checks and balances- how they work Because the Constitution creates a system of separate institutions that share powers, each institution (or branch) can check the powers of the others. The major checks possessed by each branch are as follows.

Answer 59

Bipartisanship Where can it be seen in the Constitution? -The requirement for supermajorities in the amendment process, impeachment process, and the veto override process -A staggered election cycle which can allow branches to be dominated by different parties An example of it working today The ‘Gang of Eight’ in the Senate was a bipartisan group of four Democrat and four Republican senators who worked to create the bipartisan bill Border Security, Economic Opportunity and Immigration Modernization Act, which passed the Senate. An example of it failing today Despite the bipartisan immigration bill passing in the Senate, the Republican Speaker of the House of Representatives refused to allow it even to be debated in the House.

Answer 60

Federalism Where can it be seen in the Constitution? The 10th Amendment protects states’ rights -The role of the Supreme Court as the arbiter between federal and state government -The need for state approval in the amendment process -Equal representation of the states in the Senate An example of it working today Marijuana remains illegal at a federal level under the Controlled Substances Act 1970, yet in nine states recreational use has been legalised by state governments and in 13 more states it has been decriminalised. An example of it failing today Supreme Court rulings are binding on states too and in the case of Obergefell v Hodges, gay marriage was effectively legalised in all US states, including 13 states in which it had been illegal before this ruling.

Answer 61

Divided government- A political circumstance in which at least one of either the presidency, the House of Representatives or the Senate is held by a different party to the others.

Answer 62

Unified government- A political circumstance in which both chambers of Congress and the presidency are controlled by the same party.

Answer 63

Gridlock- A situation in which both the president and Congress have difficulty in exercising their powers, meaning little can be achieved.

Answer 64

Whether the above constitutional principles are effective or not is often dependent on political circumstances, and therefore the extent of their effectiveness varies. Is federal government divided or unified? When the branches of federal government are controlled by different parties, the checks and balances between branches of government are often more commonly used. Since the 1960s, the likelihood of a divided government and partisanship have both increased, often leading to ‘gridlock’. In times of a unified government, Congress and the president are more likely to work together, but this could equally be seen to undermine the principles of a limited government, with few checks being effectively used. When is the next election? Congressional elections occur every two years, with the whole of the House of Representatives and on third of the Senate being elected. This means that congressional representatives are always mindful of the views of their constituents and the popularity of the president. When an election is looming, they are more likely to act as their constituents would wish rather than as other branches of government would wish. What are the national circumstances? During times of crisis, Congress is far more likely to act with deference, allowing the president to exercise greater political control. This may be during an event like 9/11, a natural disaster like Hurricane Katrina in 2005 or during economic crisis such as the 2007 recession. This can undermine a number of constitutional principles, with the president acting with fewer limits or checks. When the national circumstances are more stable, Congress is often more assertive. Congress passed the USA PATRIOT Act just 45 days after 9/11, granting considerable powers to the US government and especially the president. This was a response to the national outcry following the attacks.

Answer 65

As one of the key principles of the Founding Fathers, federalism is firmly embedded within the Constitution. The newly freed states had fought for their independence and sovereignty against the British and were not willing to instantly give it up to a new federal government. Therefore, the Constitution divided sovereignty between the states and the federal government, giving each distinct powers which were protected by the Constitution itself.

Answer 66

FEDERAL GOVERNMENT POWERS - - to declare war - to make treaties - to coin money - to establish a military - to regulate interstate and foreign commerce - to make all laws 'necessary and proper' to achieve their constitutional powers CONCURRENT POWERS - - to make constitutional amendments - to levy taxes - to establish courts STATE POWERS - - to establish lower government - to regulate elections - to maintain a militia - to assume powers not listed in the constitution 10th amendment e.g. regulating schools, professional licenses, and intrastate commerce

Answer 67

The division of powers laid out in the Constitution was meant both to ensure state sovereignty and also to allow for a stronger federal government to overcome the problems of the Articles of the Confederation. The 10th Amendment is crucial in protecting the states' power. While the federal government can only exercise the power it has been explicitly given, the states are allowed to exercise power over anything that was listed for them plus anything that had not been included for them in the Constitution. The USA has changed greatly since 1787, and this has changed the nature of the state-federal relationship.

Answer 68

Dual federalism (1790s-1930s)- States and federal government were co-equal and had distinct areas of policy over which they had power (see previous table). States undertook most of the governing, supported by numerous Supreme Court rulings. Cooperative federalism (1930s-1960s)- Federal government power was seen as supreme to the states and there was greater cooperation over policies that had traditionally been directed and administered by states alone. The power that the federal government held expanded considerably after the Wall Street Crash in 1929 and the economic depression that followed, the Second World War and the Cold War. New federalism (1970s-2000s)- Following Nixon's call for a 'New Federalism' respective Republican presidents, and then President Clinton, looked to roll back the power of the federal government and return it to the states.

Answer 69

President Obama tried for much of his second term to achieve immigration reform in the USA. Following congressional failure to pass legislation, he resorted to using his power to pass executive orders instructing government departments to enforce two key policies- Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans (DAPA). These did not give citizenship, or even a pathway to citizenship for illegal immigrants, but did grant them a guarantee of exemption from deportation. Obama's executive orders were then reversed by a US Supreme Court case in 2016 and then by President Trump. But a number of states or cities have defied the changes made by federal government and are seen as 'sanctuary cities'- areas which limit their cooperation with federal immigration enforcement agencies. In 2018, as an example, California passed the state Senate Bill 54, prohibiting state and local law enforcement from using personnel or facilities to investigate or arrest people for federal immigration purposes. In response, Trump threatened to withhold federal funds from sanctuary cities, but the federal courts ruled this unconstitutional in some cases. The city of Chicago sued President Trump due to the withholding of police funding over its 'sanctuary city' policies. This highlights both the tension between state and federal government and also the reliance of federal government on states for their power.

Answer 70

President GEORGE W BUSH Development of state power Gonzales v Oregon (2006) - effectively allowed state sponsored euthanasia, in defiance of the US Attorney General Alberto Gonzales Medicaid waiver given to Massachusetts to allow Governor Romney to introduce a universal health insurance programme Development of federal power USA PATRIOT Act 2001 - expanded the rights of federal government to detail people and collect information about them Medicare Prescription Drug Modernization Act 2003 - expansion of Medicare, including prescription drug benefits, cost £400 billion Homeland security - addition of an entirely new cabinet department No Child Left Behind Act 2002 - allowed for uniform school testing

Answer 71

President Barack Obama Development of state power Patient Protection and Affordable Care Act (PPCA- known as 'Obamacare') 2010- at the states urging, Obamacare included power over the provision of medical insurance run by the states themselves Texas v United States 2016- the Supreme Court struck down Obama's DAPA executive order due to the cost to the states The Cole memo- the Justice Department said it would not enforce federal restrictions on marijuana where states had legalised it except in certain circumstances, for example if firearms were involved. Development of federal power PPACA (Obamacare) 2010- expanded insurance and gave more individual rights Arizona v United States (2012) overturned Arizona's SB1070 law which increased state law enforcement power to enforce immigration laws Obergefell v Hodges (2015) the Supreme Court effectively legalised gay marriage nationally.

Answer 72

President Trump Development of state power Carpenter v United States 2018- the Supreme Court found that the federal government must obtain a warrant for a citizen's cellphone location record Executive Order minimising the economic burden of PPACA- aimed at reversing Obamacare and giving states more control Development of federal power The Cole memo- new Attorney General Sessions rescinded the Cole memo saying law enforcement would enforce national marijuana prohibitions. Exceutive order stripping federal grants from 'sanctuary cities' (later found unconstitutional).

Answer 73

Under President Obama, the Department of Justice issued a memo stating it would not pursue marijuana use in those states which had legalised it, other than in certain circumstances. These circumstances included where the sale or use of marijuana involved gang violence or guns. Under President Trump, the Department of Justice rescinded the memo. 'The Department's guidance...rests on its expectation that states and local governments that have enacted laws authorizing marijuana related conduct will implement strong and effective regulatory and enforcement systems that will address the threat those state laws could pose to public safety, public health and other enforcement interests'. The Cole Memo 2013 'In the Controlled Substances Act, Congress has generally prohibited the cultivation, distribution and possession of marijuana. It has established significant penalties for these crimes...These statutes reflect Congress' determination that marijuana is a dangerous drug and that marijuana activity is a serious crime...Given the Department's well-established principles, previous nationwide guidance specific to marijuana enforcement is unnecessary and is rescinded, effective immediately'. The Sessions memo 2018

Answer 74

Despite the huge public fanfare that accompanied legislation such as No Child Left Behind or Obamacare, the federal government remains reliant on states to enforce any federal law. In 2016 alone, nine states had initiatives on their ballot papers regarding the legalisation in some form of marijuana. With marijuana 'legalised' recreationally in nine states and medically in 30, it will be difficult for President Trump's Attorney General to enforce the federal Controlled Substances Act 1970 without a considerable expense on federal law enforcement. With 50 state governments, and nearly 90,000 local governments, federal law may seem like it reduces state powers, but the impact in reality can often be minimised through state interpretation and enforcement.

Answer 75

Despite the importance that the Founding Fathers placed on federalism, its impact across the USA today is far from uniform. It is easy to focus only on federal government and the laws and policies it implements. For US citizens, the laws and policies put in place by their states are often more important and impractical than those put in by federal government.

Answer 76

- citizens rights - criminal punishment - electoral regulation - taxes

Answer 77

Citizen's rights In addition to those rights protected by the Constitution, the rights of citizens vary widely between the states. States such as Alaska allow citizens to get a learner's permit for driving at age 14, while in Massachusetts a citizen must be 16. Equally, restrictions over issues such as abortion, euthanasia, gun control, and marijuana vary hugely between the states in the USA.

Answer 78

Criminal Punishment The death penalty alone is a huge difference between the states. Currently 30 states allow the death penalty. Between them there are five different methods of execution and each state does not use them all. Also, in Florida, Iowa and Kentucky, a convicted felon does not necessarily regain their right to vote upon release from prison.

Answer 79

Electoral regulation Article I allows states to run their own elections. This has resulted in huge variations in electoral practice, most notably leading to the controversy over the 2000 presidential election. As of 2018, to vote in elections, states in the USA can use: a ballot paper, a ballot paper and electronic voting, a mail ballot or electronic voting alone. States that use electronic voting can do so with or without maintaining a paper trail, which has courted controversy after the Department for Homeland Security said that 21 states had their voting systems targeted by hackers in the 2016 election. State governments are also allowed to set the boundaries for the districts in their states, leading to court cases over 'gerrymandering'.

Answer 80

Taxes As well as being taxed federally, citizens are taxed by their state. These are far from uniform and citizens can find themselves paying sales tax, income tax, property tax and more. Income tax alone varies from 0% in seven states to over 13% in California.

Answer 81

Gerrymandering- The manipulation of constituency boundaries to give a party-political advantage.

Answer 82

Citizen's Rights Certain rights have been dictated by the federal government. The drinking age, as an example, is set at 21, and the Supreme Court case of Obergefell v Hodges in 2015 effectively legalised same sex marriage in every state. Equally, such cases as Arizona v United States even challenged the powers of Arizona when enforcing a federal law.

Answer 83

Criminal Punishment The Supreme Court has put numerous restrictions on the use of the death penalty while upholding the punishment more generally. Cases such as Kennedy v Louisiana (2008), Panetti v Quarterman (2007) and Roper v Simmons (2005) all limit the use of the death penalty. As the final court of appeal, the Supreme Court can challenge the state courts in cases that it chooses to hear.

Answer 84

Electoral Regulation Numerous federal laws, and even constitutional amendments, have extended voting rights at a national level, lowering the voting age and extending voting rights regardless of sex and colour. Campaign finance laws and regulations are also set at a federal level.

Answer 85

Taxes Not only do citizens have to pay federal income tax, states are also reliant on grants from the federal government when their own finances run low or in response to unexpected circumstances, e.g. the Federal Government spent more than $100billion on the recovery effort following Hurricane Katrina in 2005 which would have amounted to half of Louisiana's (the state worst affected by the natural disaster) annual GDP.

Answer 86

A Codified Constitution There are three key features that need to be understood about the nature of the US Constitution. Firstly, it is a codified constitution, laid out in a systematic way and it is an authoritative set of rules of how the American government and politics should operate. It is written in a single text. The Constitution consists of seven Articles (see above), the first three of which explained how the three branches of the federal (national) government could work and what powers they would have. Article I established Congress as the national legislature, defining its membership, the qualifications and method of election its members as well as its powers. Under Article I, Section 8 Congress was given specific powers such as those to ‘coin money’ and ‘declare war’. Article II decided, surprisingly, on a singular rather than plural executive by vesting all the executive power in the hands of ‘a President’, who would be chosen indirectly by an Electoral College. Article III established the Supreme Court, though Congress quickly added trial and appeal courts. Although not explicitly granted, the Court was to have the role of an umpire of the Constitution, implied in the supremacy clause of Article VI (which states that the Constitution, as well as treaties and federal laws, ‘shall be the supreme law of the Land’) and the provision of Article III itself that the Court’s judicial power applies to ‘all cases…arising under this Constitution’. The Court would make this more explicit in its landmark decision of Marbury v Madison in 1803. These three Articles contain what are called the enumerated (or delegated) powers, granted to the federal government, under the Constitution. The significance of this is that the federal government does not possess unlimited power but only such power as is given it in the Constitution. But it has also much less specific power.

Answer 87

The second feature of the US Constitution is that it is both specific and vague. There are implied powers in the Constitution, powers that are possessed by the federal government by inference from those powers delegated to it in the Constitution. They are not explicitly mentioned but are reasonably implied from the delegated powers. An example would be the power to draft people into the armed forces may be implied by Congress’s enumerated power to raise an army and navy. Congress was also given the power to ‘provide for the common defence and general welfare of the United States’. From this was implied that Congress had the power to levy and collect taxes to provide for the defence of the United States. Many of the implied powers are deduced from what is called the necessary and proper clause of Article 1, Section 8. This is often referred to as the ‘elastic clause’ of the Constitution because, by it, the powers of the federal government can be stretched beyond the specifically delegated or enumerated powers. In other words, it allows Congress to make all laws to carry out the government’s duties. So, in this sense, some powers of the Constitution are very explicit, there are other parts that are very vague and therefore the Constitution has been able to adapt to the ever-changing circumstances of the nation. The Constitution has therefore delegated certain powers to the federal government alone. The Constitution also includes reserved powers, powers not delegated to the federal government or prohibited by it to the states, are reserved to the states and to the people. This provision is found in the Tenth Amendment – ‘The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States, respectively, or to the people’. Then there are concurrent powers, powers passed by both the federal and state governments, such as collecting taxes, building roads and maintaining courts. Alongside the specific granting of powers there the supremacy clause of Article VI, mentioned earlier. This enshrines into the Constitution a key principle of American government that asserts the supremacy of national law. In this clause, the Constitution provides that laws passed by federal government under its constitutional powers are the supreme law of the land. Therefore, any legitimate national law automatically supersedes any conflicting state law. Its provisions are entrenched The third feature of the Constitution is entrenchment, the application of extra-legal safeguards to a constitutional provision to make it more difficult to amend or abolish it. The main way that the Constitution is protected from change or attack is through the use of supermajorities to make the task of changing the Constitution complicated and difficult. Therefore, entrenchment is provided through a complex amendment process.

Answer 88

The Amendment Process: The Founding Fathers, while realising the likely need to amend the Constitution, wanted to make doing so a difficult process. Thus, it was to be a two-stage process requiring supermajorities of more than 50%, such as two thirds or three quarters majority. The process is laid out in Article V. Stage 1 is the proposal and stage 2 is the ratification. Constitutional amendments can be proposed either by Congress or by a national constitutional convention called by Congress at the request of two thirds of the state legislatures. All constitutional amendments thus far have been proposed by Congress. No national constitutional convention has ever been called, although by 1992 32 state legislatures had petitioned Congress for a Convention to propose a balanced budget amendment- just two states short of the required two thirds.

Answer 89

During the presidency of Bill Clinton (1993-2001) there were 17 votes on proposed constitutional amendments, an unusually high number. All these votes occurred during a six-year period when the Republicans controlled both houses of Congress- 1995 to 2001. A proposal to amend the Constitution requires a two thirds majority in both houses to be successful. During this period, the House of Representatives agreed to a balanced budget amendment (1995) and a flag desecration amendment (1995, 1997 and 1999). However, the Senate agreed to neither of these, although it was only one vote short of the two thirds majority required to pass the balanced budget amendment in 1997 and four votes short of passing a flag desecration amendment in 2000.

Answer 90

During the presidency of George W. Bush (2001-09) there were six further attempts to amend the Constitution. But only three of these six votes- the three in the House of Representatives to ban the desecration of the American flag- received the required two thirds majority. This means that the House has now voted on this amendment six times since 1995. Almost every time, the number of ‘yes’ votes has declined. When the Senate voted on the amendment in June 2006, the vote was 66-34, just one short of the required two thirds majority. But with the Democrats retaking control of both houses of Congress in the 2006 midterm elections, passage of the amendment became much less likely as it is mostly Republicans who vote ‘yes’ on banning the desecration of the flag. This is the reason why these votes took place when the Senate and House of Representatives were controlled by the Republicans. Democrats tend to vote ‘no’ on such proposals. At the start of the 113th Congress in January 2013, bills to amend the Constitution were introduced on a range of subjects, including amendments to: * Require a balanced federal budget * Ban flag desecration * Guarantee equal rights for men and women * Introduce congressional term limits In November 2016, outgoing Democratic senator Barbara Boxer of California introduced a bill to abolish the Electoral College in the aftermath of the presidential election result earlier in the month that saw Democrat Hillary Clinton win the popular vote but lose in the Electoral College. Once an amendment has been successfully proposed, it is sent to the states for ratification. An amendment can be ratified either by three quarters of the state legislature or by state constitutional conventions in three quarters of the states. Of the 27 amendments added to the Constitution only one has been ratified by state constitutional conventions- the 21st Amendment, which repealed the 18th Amendment and thus ended the prohibition of alcohol. Of the 33 amendments passed to them for ratification by Congress, the states have ratified 27. Once an amendment has been successfully proposed by Congress, it stands a good chance of finding its way into the Constitution. Only six amendments have failed at the ratification stage in over 210 years. The most recent was the District of Columbia voting rights amendment, which would have granted the District- the federal capital- full representation in Congress as if it were a state. Only 16 states, rather than the 38 required had voted to ratify the amendment when it expired in 1985. Three years earlier, the equal rights amendment for the rights of women had fallen just three states short in the ratification process.

Answer 91

Advantages and Disadvantages of the Amendment Process Advantages - Supermajorities ensure against a small majority being able to impose its will on a large majority of people - The lengthy and complicated process makes it less likely that the Constitution will be amended on a merely temporary issue. - It ensures that both the federal and state government must favour a proposal - It gives a magnified voice to the smaller population states (through the Senate’s role and the requirement for agreement of three quarters of state legislatures) - Provision for a constitutional convention called by the states ensures against a veto being operated by Congress on the initiation of amendments. Disadvantages - It makes it overly difficult for the Constitution to be amended, thereby perpetuating the what some see as outdated provisions: for example, the Electoral College. - It makes possible the thwarting of the will of the majority by a small and possibly unrepresentative minority. - The lengthy and complicated process nonetheless allowed the Prohibition amendment to be passed (1918) - The difficulty of formal amendment enhances the power of the (unelected) Supreme Court to make interpretive amendments - The voice of small population states is overrepresented.

Answer 92

The Bill of Rights and later amendments Of the 27 amendments to the Constitution, the first ten were proposed together by Congress in September 1789 and were ratified together by three quarters of the states by December 1791. Collectively, they are known as the Bill of Rights. Many of the states had somewhat reluctantly signed up to the new federal Constitution with its potentially powerful centralised government. The Bill of Rights was designed to sugar the constitutional pill by protecting Americans against an over-powerful federal government. Seventeen further amendments have been passed since the Bill of Rights. The 12th Amendment (1804) revised the process for electing the president and vice president. The 13th (1865) and 14th (1868) and 15th (1870) Amendments were proposed and ratified immediately after the Civil War to end slavery and guarantee rights to former slaves. The 14th Amendment has become increasingly important in American society through its ‘equal protection’ and ‘due process’ clauses. The 16th Amendment (1913) is of crucial importance in understanding how the federal government’s power increased during the 20th Century. It allowed the federal government to impose an income tax. The 17th Amendment (1913) provided for the direct election of the Senate. Previously, senators were appointed by their state legislatures. The 22nd Amendment limited the president to a maximum of two terms in office. The 25th Amendment (1967) dealt with issues or presidential disability and succession, which had come to the fore following the assassination of President Kennedy four years earlier. The 26th Amendment (1971) lowered the voting age to 18.

Answer 93

With only 27 amendments passed, and only 17 of those in the last 210 years, the question is raised as to why so few amendments have been passed. There are four main reasons. The Founding Fathers created a deliberately difficult process. The need for both Congress and the states to agree, and the need for supermajorities, make the amendment process difficult. Hundreds of amendments have been initiated, but very few have made it successfully through the process. The Founding Fathers created a document that was, at least in parts, deliberately unspecific and vague, such as Congress’s power to ‘provide for the common defence and general welfare’ of the United States. This has allowed the document to evolve without the need for formal amendment. The most important reason is the Supreme Court’s power of judicial review. It gives the Supreme Court the power to interpret the Constitution and in effect change the meaning of the document written over 200 years ago by making ‘interpretive amendments’ rather than creating formal amendments. An example would be the Supreme Court interpreting the 8th Amendment, which forbids ‘cruel and unusual punishments’ and what that means today in the criminal justice system. Americans have become cautious about tampering with their Constitution. They hold it in a form of veneration. In the early decades of the last century America got itself into difficulties by amending the Constitution to prohibit the manufacture, sale and importation of alcohol. Fourteen years later, ‘Prohibition’ was discredited, and the offending amendment was repealed. This experience proved to be an important lesson for subsequent generations.

Answer 94

The Constitution guarantees certain constitutional rights, in other words fundamental rights guaranteed by the Constitution including the freedom of speech and religion, and freedom from arbitrary arrest. Just listing rights in a constitution, does not mean that these rights are operative. The government- be it federal, state or local, must take steps to ensure that these rights are effectively protected. All three branches of the American federal government, the legislature (Congress), the executive (the president) and judiciary (the courts, especially the Supreme Court), play an important role in trying to ensure that these constitutional rights are effective for all Americans. So what are the rights granted by the Constitution? The First Amendment guarantees the most basic and fundamental rights: freedom of religion; freedom of speech; freedom of the press; freedom of assembly. Debates such as those concerning prayers in public (state) schools, pornography on the internet, flag burning, and press censorship all centre upon the First Amendment rights. The Second Amendment guarantees that the ‘right of the people to keep and bear arms shall not be infringed’. It is on this amendment that the debate on gun control focuses. The Supreme Court weighed in with a major decision on the meaning of the amendment in 2008. The Fourth Amendment guarantees the right against unreasonable searches-either of your person or your property. Dramas often show Americans pleading the Fifth Amendment, the right to silence and protecting the individual from self-incrimination. The Eighth Amendment, which states that ‘cruel and unusual punishments’ shall not be inflicted, is the focus of death penalty debates. The Tenth Amendment tends to be an article of faith of the modern Republican Party, in standing up for states’ rights over the increasing power of the federal government in Washington DC. Later amendments have been added to guarantee other fundamental rights and liberties. Voting rights were guaranteed to women by the Nineteenth Amendment in 1920 and to those over 18 years of age by the Twenty Sixth Amendment in 1971. Voting rights were also guaranteed to previously discriminated minorities, notably black voters, by the Twenty Fourth Amendment passed in 1964. It is largely up to the courts, especially the United States Supreme Court to ensure these rights are effective.

Answer 95

The Principles of the Constitution The Constitution is based on three key principles- fundamental and foundational ideas- that form its very core and basis: namely, the separation of powers, checks and balances, and federalism. Linked with the first two is another principle, that of bipartisanship, and linked with federalism is the principle of limited government.

Answer 96

Separation of Powers The first key principle is the separation of powers- a theory of government whereby political power is distributed among the legislature, the executive and the judiciary, each acting both independently and interdependently. This framework was put in place by the Founding Fathers because of their fear of tyranny. The framers of the Constitution were influenced by the writings of French political philosopher Montesquieu (1689-1755). In his book ‘De L’Esprit de Loix’ (The Spirit of the Laws), published in 1748, Montesquieu argued for a separation of powers into legislative, executive and judicial branches in order to avoid tyranny. ‘When the legislative and executive powers are united in the same person…there can be no liberty’, he wrote. The Founding Fathers had the idea that each of these three independent, yet co-equal branches should check the power of the others. It was decided that no person could be in more than one branch of the federal government at the same time- what we might call ‘the separation of personnel.’ When in 2008, Senator Barack Obama was elected president, he had to resign from the Senate, as did his newly elected vice president Senator Joe Biden. In this sense, the three branches, the institutions of government, are entirely separate. The term ‘separation of powers’ is misleading, for it is the institutions that are separate, not the powers. Professor Richard Neustadt (1960) wrote ‘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’. So the concept is best thought of as the doctrine of ‘shared powers’. And those ‘shared powers’ are what checks and balances are all about for the Founding Fathers set up an intricate system whereby each branch of the federal government would check and balance the other two. This is especially important in terms of the legislature and the executive, which Professor SE Finer (1970) described as being ‘like two halves of a bank note-each useless without the other’.

Answer 97

Checks and Balances The second key principle of the Constitution is checks and balances, a system of government that gives each branch, legislative, executive and judicial, the means to partially control the power exercised by the other branches. This is to resist encroachments on its own powers and to maintain democratic government. The main checks and balances exercised by each branch are detailed below, firstly in a brief outline and then in detail. Checks and balances- how they work Because the Constitution creates a system of separate institutions that share powers, each institution (or branch) can check the powers of the others.

Answer 98

Checks by the president on Congress The president is given the power to recommend legislation to Congress. They do this formally in January of each year in what is known as the State of the Union Address- an annual speech made by the president to a joint session of Congress, setting out his proposed legislative programme for the coming year. Also present are the cabinet, the justices of the Supreme Court and other invited guests, before a nationwide audience on prime-time TV. It is the president’s main opportunity to lay out their legislative agenda, effectively saying to Congress ‘this is what you to debate and pass into law’. An example would be when President Obama used his State of the Union address in January 2010 to focus on healthcare proposals, urging Congress: ‘Let’s get it done!’ Two months later Obama signed the bill into law. In addition, the president has the power to veto (the presidential veto is a power the president has under Article II of the Constitution to return a bill to Congress unsigned, along with the reasons for the objection) bills passed by Congress. During his eight years in office, for example, President Obama used the regular veto on 12 occasions including in 2016, his veto of a bill that would have rescinded parts of his healthcare reform legislation.

Answer 99

Checks by the president on the courts Here the president has two significant checks. First, the president nominates all federal judges-to the trial courts, appeal courts and Supreme Court. It is the last that are the most important. During his first term, President Obama was able to make two appointments to the Supreme Court- Sonia Sotomayer (2009) and Elena Kagan (2010). By choosing justices whose judicial philosophy matches their own, presidents can hope to mould the outlook of the court for years to come. Second, the president has the power of pardon. This has become controversial in recent times. In 1974, President Ford pardoned his predecessor -President Nixon- for any crimes that Nixon may have committed in the so-called Watergate scandal. On the final day of his presidency, President Clinton pardoned 140 people, including Mark Rich, a notorious tax fugitive. President Obama pardoned 142 people during his final three weeks in office

Answer 100

Checks by Congress on the Courts Congress has two important checks on the courts. First, there is again the power of impeachment, trial and removal from office. In the space of three years (1986-89), Congress removed three federal judges from office, Harry Claibourne for tax evasion, Alcee Hastings for bribery, and Walter Nixon for perjury. In March 2010, the House of Representatives impeached federal judge Thomas Porteous for corruption and following guilty verdicts in the Senate on four counts, Judge Porteous was removed from office later that year. A more subtle but still significant check is that Congress can propose constitutional amendments to-in effect- overturn a decision of the Supreme Court. When in 1896 the Supreme Court declared federal income tax to be unconstitutional, Congress proposed the Sixteenth Amendment granting Congress the power to levy income tax. It was ratified and became operative in 1913. Congress has more recently attempted unsuccessfully to reverse Supreme Court decisions on such issues as flag burning and prayer in public schools. Following a controversial ruling by the Supreme Court on the subject of campaign finance in 2010, Senator Tom Udall (Democrat, New Mexico) introduced a proposed constitutional amendment to reverse the effects of the decision. But the amendment got no further than an unsuccessful vote on the Senate floor.

Answer 101

Checks by the courts on Congress The judiciary-headed by the Supreme Court-possesses one very significant power over Congress: the power of judicial review. This is the power of the court to declare Actos of Congress to be unconstitutional and therefor null and void. In the 1997 case of Reno v American Civil Liberties Union, the Supreme Court declared the Communications Decency Act (1996) unconstitutional. In 2013, in the case of United States v Windsor, the Court declared the Defense of Marriage Act (1996) unconstitutional.

Answer 102

Checks by the courts on the president The courts have the same power of judicial review over the executive branch. Here the power of judicial review is the ability to declare actions of any member of the executive branch to be unconstitutional. In United States v Richard Nixon (1974) the Court ordered President Nixon to hand over the so-called White House tapes and thereby stop impeding the investigation of the Watergate affair. Nixon obeyed, handed over the tapes and just 16 days later resigned, once the tapes showed his involvement in an intricate cover up. In the 2006 case of Hamdan v Rumsfeld, the Supreme Court declared unconstitutional the military commissions set up by the administration of President George W. Bush to try suspected members of A Qaeda held at Guantanamo Bay in Cuba. Then in 2014, in National Labor Relations Board v Noel Canning, the Court ruled that President Obama had acted unconstitutionally in making three appointments to the National Labor Relations Board without the approval of the Senate. In 2017, in the case of the State of Washington v Donald J. Trump, the federal courts placed a temporary restraining order on President Trump’s executive order that banned people from seven Muslim majority countries from entering the United States.

Answer 103

So does the US Constitution still work? Yes - Federalism has proved to be an excellent compromise between strong national government and state government diversity - The text has proved very adaptable to changes in American society - The demanding amendment process has usually prevented frequent and ill-conceived proposals for amendment - Rights and liberties of Americans have been protected - The Supreme Court’s the power of judicial review has made it even more adaptable through an ‘interpretive amendment’. No - The amendment process is too difficult, making it almost impossible to amend parts that are no longer applicable or to add parts that a majority desires. - The power of judicial review gives the Supreme Court too much power to ‘amend’ its meaning - Some parts make little sense in today’s society (e.g. the Electoral College). - Some parts don’t work as the framers of the Constitution would have envisaged (e.g. war making powers).

Answer 104

The Changing Federal-State Relationship: Federalism is not a fixed concept. It is ever changing. As America has changed, so has the concept of federalism. During the latter part of the nineteenth century and the first two thirds of the twentieth century, a number of factors led to an increased role for the federal government. - Westward expansion. From 13 colonies clustered on the Atlantic coast, settlement spread west across the Appalachian Mountains, over the plains of the Midwest, across the Rockies and all the way to the Pacific Coast. - The growth of the population. Simultaneously, the population grew from just 4 million in 1790 to 76 million by 1900, and 322 million by 2016. A growing nation required management by a growing government. - Industrialisation. This brought the need for government regulation- the federal executive Department of Commerce and Labor was formed in 1903 before being split into two separate departments just ten years later. - Improvements in Communication. While the nation grew in size, it shrank in terms of accessibility as modern methods of communication gradually developed. Journeys that had taken weeks eventually took only days or hours as road, rail and aircraft opened up the nation. Radio, followed by television, brought instant communication and a feeling national identity. People could communicate with others thousands of miles away, first by telephone and now by Twitter and email. - The Great Depression. Events influenced the federal-state relationship, too. When the Great Depression hit the USA in 1929, the states looked to the federal government to cure their ills. The state governments did not possess the necessary resources to reverse the huge levels of unemployment, launch vast public works schemes, or rescue agriculture from the effects of the dust bowl conditions. It was Franklin Roosevelt’s New Deal, with its ambitious schemes to build new roads and schools and provide hydro-electric power, which helped America get back to work. - Foreign policy. With the onset of World War Two, the USA stepped out as a world superpower and the federal government, with exclusive jurisdiction over foreign policy, found its role enhanced significantly. - Supreme Court decisions. Political changes occurred to alter the federal state relationship. Decisions made by the Supreme Court-especially between 1937 and the 1970s- further enhanced the power of the federal government through their interpretation of the implied powers of the Constitution. This was possible through the Court applying a more expansive meaning to the powers allocated to Congress in Article I, Section 8 of the Constitution. Especially the ‘necessary and proper clause’, the ‘common defense and general welfare clause’ and the ‘commerce clause’- which empowered Congress to regulate commerce with foreign nations and among the states. From the mid-1980’s, under the chief justiceships of William Rehnquist (1986-2005) and more recently John Roberts (2005- ), the Court has sometimes taken a more restrictive view of these clauses, thereby limiting the role of Congress in particular and the federal government as a whole. This was most clearly seen in the 2012 decision of National Federation of Independent Business v Sebelus, in which the Court declared that President Obama’s Healthcare Reform Act could not be justified under the commerce clause, but only under Congress’s power to levy taxes. * Constitutional amendments. One of the three post-Civil War amendments, the Fourteenth, changed dramatically, although not immediately, the federal government’s relationship with the states. For the first time, the Constitution had been amended to impose prohibitions directly on state governments. Two requirements of the Fourteenth Amendment in particular, over time, revolutionised the federal state government relationship. These requirements, referred to as the ‘due process’ and the ‘equal protection’ provisions, are found towards the end od Section 1 of the Amendment. They read ‘nor shall any State deprive any person of life, liberty or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws’. These provisions of the Fourteenth Amendment have been used by the Supreme Court to invalidate state laws requiring public (state) school segregation and other forms of racial discrimination. Moreover, the Supreme Court has employed them to outlaw a wide array of other state laws, ranging from certain restrictions on abortion, to Florida’s attempt to order a recount in the 2000 presidential election between George W. Bush and Al Gore. Equally importantly, the passage of the Sixteenth Amendment (1913) allowed the federal government the means to impose an income tax. This gave the federal government the means to launch all the grand programmes that would flourish from Roosevelt’s New Deal through the presidencies of Truman, Kennedy and Johnson to the late 1960s.

Answer 105

Phases of federalism In the period from the 1780s to the 1920s, the individual state governments exercised most political power. The focus was very much on states’ rights. But following the devastating effects of the Wall Street Crash and the Great Depression, the period from the 1930s to the 1960s saw a significant increase in the power and scope of the federal government. During this period, the federal government made increasing use of the categorical grants- schemes by which it was able to stipulate how federal tax dollars were used by the states. During the final three decades of the 20th century there was a discernible movement towards decentralisation, what President Richard Nixon called ‘New Federalism’- an approach to federalism characterised by a return of certain powers and responsibilities from the federal government to the states. This era saw the rise of block grants, money given by the federal government to states to be used at their discretion within broad policy areas. This change in the federal-state relationship coincided with the administrations of four Republican presidents, Richard Nixon, Gerald Ford, Ronald Reagan and George H. W. Bush. But in some ways, the states did not benefit much from these new trends in federalism. As the federal deficit increased in the 1980s, federal programmes were cut. This gave rise to a new term- the underfunded mandate, a federal law requiring states to perform functions for which the federal government does not supply funding. By the mid 1990s with a new Republican majority in both houses of Congress, Washington was once again talking of devolving power back to the states. These decades were therefore a period of ‘zigzag federalism’. While some policy areas gained greater flexibility and autonomy to experiment with new policy approaches, in other areas Washington exercised stricter control. This kind of inconsistency was to be seen during the second George W. Bush presidency, especially after the events of 11th September 2001.

Answer 106

Federalism has consequences throughout US government and politics. - Legal Consequences. There is tremendous variety in state laws on such matters as the age at which people can marry, or can drive a car, or have to attend school. Laws vary on drugs and whether the death penalty is used. There are both federal and state courts. - Policy consequences. The states can act as policy laboratories, experimenting with new solutions to old problems. Of late we have seen this in such areas as healthcare provision, immigration reform, affirmative action programmes and environmental policies. Healthcare reform in Massachusetts and immigration reform in Arizona have both received considerable national attention, though much of the latter was declared unconstitutional by the Supreme Court in 2012. - Consequences for elections. All elections in the United States are state based and run under state law. Even the presidential election is really 50 separate state-based elections with the outcome decided by state based Electoral College. Each state decides such matters as: how candidates will be chosen for elections in their state, the procedures for getting a candidate’s name on the ballot paper, what mechanisms are used in the polling stations-punch cards or touch screen computers. Arizona has experimented with online voting while both Washington State and Oregon have moved entirely to a postal ballot. - Consequences for political parties. It is important to realise that political parties in America are essentially decentralised, state-based parties. Texas Democrats are more conservative than Massachusetts Democrats. Vermont Republicans are more liberal than South Carolina Republicans. You can see the effects of federalism in Congress with its state-based representation. The consequences of federalism were highlighted in the 2016 presidential nomination contest when Republicans in Colorado, North Dakota and Wyoming decided not to hold either a primary or a caucus, but to choose their national convention delegates through a state party convention, much to Donald Trump’s annoyance. There was nothing the national Republican Party could do about it. - Economic Consequences. These are seen not only in the huge federal tax grants going to the states, but also in the complexity of the tax system in America. Income tax is levied by the federal government and some state governments, different property taxes are levied by the state governments, and sales taxes vary between cities. - Regionalism. The regions of the South, Midwest, the Northeast and the West have distinct cultures and accents, as well as racial, religious and ideological differences. There is a distinct difference between the conservatism of the Deep South and the liberalism of the Northeast. What plays well in the ‘Bible Belt’ won’t necessarily play well in New England. When all is said and done, federalism has proved to be an appropriate system of government for the United States. It has adapted itself well to the ever-changing nation. Despite its frustrations, there are few who question its future. Some Americans may think the federal-state relationship has at times got out of kilter, but most believe that its strengths far outweigh its weaknesses.

Answer 107

Does Federalism work today? Yes * It permits diversity * It creates more access points in government * It provides a ‘double security’ for individual rights and liberties * It makes states ‘policy laboratories’, experimenting with new solutions to old problems. * It is well suited to a geographically large and diverse nation No * It can mask racial and economic inequalities * It can frustrate the ‘national will’. * It makes problem solving more complicated * The relationship between federal and state governments can become a source of conflict and controversy. * It is overly bureaucratic- and therefore costly to run and resistant to change.

Answer 108

Federalism under George W. Bush (2001-09) When George W. Bush arrived in Washington in January 2001, it was to be presumed that as a Republican president that he would continue to move towards shrinking the federal government and of decentralisation. But one of the most unexpected facts about his administration is that he presided over the largest overall increase in inflation adjusted federal government spending since Lyndon Johnson’s Great Society programme in the mid-1960s, when the Democrat president introduced a huge programme of economic and social reforms and welfare schemes starting in May 1964, to try and solve Americas’ problems of poverty, malnutrition, poor housing and access to medical care. Under George W. Bush total government spending grew by 33% during his first term, between 2001 and 2005. The federal budget as a share of the economy grew from 18.4% of GDP in 2000, Clinton’s last year in office, to 20.5% in 2008, the last full year of Bush’s presidency. Four main policy areas accounted for this expansion in federal government spending. Education As governor of Texas, George W. Bush had focused on education as one of the most important areas of policy and he brought the same focus to Washington in 2001. Education had been a cornerstone of George W. Bush’s 2000 election campaign with its slogan of ‘no child left behind’. Now, as president, Bush wanted to use the re-authorisation of the 1965 Elementary and Secondary Education Act as a vehicle for his education reforms. The No Child Left Behind Act, signed into law by President Bush in January 2002, ushered in the most sweeping changes in federal education policy since the 1960s. In what was a major expansion of the federal government’s role in education, the new mandated that the states test children annually in grades 4 to 8 (equivalent to years 3 to 7 in the UK) using, in part, a uniform national test. It required that children in failing schools be moved to successful ones and provided for a 20% increase in funding for the poorest, inner city schools. It tripled the amount of federal funding for scientifically based reading programmes. For Bush, this was the federal government as enabler. At the bill signing ceremony at the White House, he declared: - ‘The federal government will not micromanage how schools are run. We believe strongly that the best path to education reform is to trust the local people. And so the new role of the federal government is to set high standards, provide resources, hold people accountable, and liberate school districts to meet these standards’. Significant questions remain as to the effectiveness of Bush’s much trumpeted education reforms. But whatever else the No Child Left Behind Act was, it signalled a whole new approach to federal state relations for a Republican president. Medicare Medicare is a federal government healthcare programme (basic health insurance to cover medical and hospital care) for the over 65’s introduced in 1965 by Democrat President Lyndon Johnson. In December 2003, George W. Bush signed a major Medicare expansion bill into law which included a new prescription drug benefit. The measure estimated to cost $400 billion in its first ten years and was written to benefit American seniors. That a Republican president should preside over the expansion and modernisation of Medicare was something of an irony. But a number of conservative Republicans were critical of the price tag of the reforms as well as the fact that a Republican president was supporting such a huge expansion of a federal government programme. In the House, 25 Republicans voted ‘no’ on its final passage, as did nine Republicans in the Senate. George Bush Jnr’s No Child Left Behind Act ushered in sweeping changes in federal education policy. Homeland Security and Defence Between 2001 and 2009 spending by the Department of Defense increased from $290 billion to $651 billion, an increase of 125%. Between 2001 and 2006, spending on homeland security increased from just $13 billion to $69 billion, more than a fivefold increase in five years. Both these increases were due to the direct results of the events of 9/11 in 2001, and the subsequent military operations in both Iraq and Afghanistan, as well as the ‘war on terror’ and the push to increase homeland security significantly. Defence spending rose during the George W. Bush years from 15% of the federal budget to 21%; homeland security from less than 1% to just shy of 3%. Economy and Jobs There was yet another extraordinary example of big government Republicanism in September 2008 when President Bush authorised Secretary of the Treasury Henry Paulson to take control of two troubled privately owned by government sponsored mortgage companies- the Federal National Mortgage Association, known as Fannie Mae, and the Federal Home Loan Mortgage Corporation, known as Freddie Mac. Together, Fannie Mae and Freddie Mac owned or guaranteed about half of the $12 trillion US mortgage market and had suffered huge losses with the collapse of the housing market. ‘In Crisis, Paulson’s Stunning Use of Federal Power’, headlined The Washington Post’s front page the day after Paulson’s announcement. ‘Not since the early days of the Franklin D. Roosevelt administration, at the depth of the Great Depression, has the federal government taken such a direct role in the workings of the financial system’, continued the Washington Post. This was followed by the Bush administration’s sponsorship of a $700 billion so-called bailout package for Wall Street to alleviate the effects of the credit crunch. Again, this looked more like the policies of a New Deal Democrat than of a conservative Republican. The package was passed through Congress by mostly Democrat votes.

Answer 109

Federalism under Barack Obama (2009-17) Whereas the Bush administration concentrated in its second term on war and terrorism, the Obama administration was more focused on domestic policy as a way of delivering his ‘change’ agenda as announced during his 2008 presidential campaign. This had the profound effect on the relationship between Washington and the states. War and security against terrorism are conducted exclusively by the federal government; domestic policy is increasingly the domain of the states. As a result of Obama’s first term policies, a number of changes in the federal-state relationship were observed. By 2012 the ratio of state and local government employees to federal employees was the highest since before President Roosevelt’s New Deal in the 1930s. Federal government assistance to the states increased from 3.7% of GDP in the last year of the Bush administration (2008) to 4.6% of GDP in the first year of the Obama administration (2009). Similarly, money form the federal government, which accounted for 25% of state government spending in 2008, accounted for 30% of such spending in 2009. Whereas under Bush’s economic stimulus package (2003) just $20 billion went to the states, under Obama’s stimulus package (2009) $246 billion went to or through the state governments. This significant increase in federal money going to the states between 2005 and 2010 came partly as a result of such programmes as the re-authorisation of the State Children’s Health Insurance (S-CHIP) programme in 2009, the expansion of Medicaid (a health insurance programme for the poor); and over $4 billion invested in the Race to the Top programme to boost education in the states, as well as programmes like the Pell Grants for university education. US Federal spending between 1960 and 2010, showing the increase as a % of GDP towards the end of the 2000’s and a decline again subsequently. But the aspect of Obama’s legislative programme which came in for most criticism regarding its implications for the federal state relationship was his healthcare reform legislation. Many Republicans saw the passage of this programme in 2010 as the ‘end of federalism’ and were those the Tea Party movement (A conservative grassroots organisation formed to oppose the legislation passed by Congress in 2008-09 in the aftermath of the banking collapse of 2008. It supported reducing government scope and spending, as well as the lowering of tax levels) who accused Obama of being more socialist than a federalist. The argument centred on the provision in the law whereby those Americans who could not afford to buy health insurance would be covered by an expansion of the federal state Medicaid programme. States had to participate in this expansion of Medicaid or lose all their federal funding for Medicaid, the federal government’s largest grant programme. A number of states sued, arguing that this was a violation of the principles of federalism and was therefore unconstitutional. Their contention was that this provision in the law amounted to coercion rather than persuasion. In National Federation of Independent Business v Sebelius (2012), the Supreme Court agreed with this argument and struck down the Medicaid provision in the law- a victory for the states. Obama’s expansive view of the federal government was somewhat curbed by the Supreme Court decision. Although most of the Affordable Care Act was allowed to stand by the decision, the philosophical argument underpinning the decision was clearly based on a more limited role of the federal government than President Obama and the Democrats in Congress had claimed. By the close of the Obama presidency, Americans’ views on the federal government were decidedly negative. Exit poll data in the 2016 presidential election showed that only 29% of voters were either enthusiastic about or satisfied with the federal government, while 69% were either dissatisfied or angry. Furthermore, by a narrow margin, more thought that the government was ‘doing too much’ (50%) than thought it should ‘do more’ (45%).

Answer 110

FOR arguments: - Checks and balances promote effective government by ensuring proper scrutiny of legislation, presidential appointments and treaties thoroughly through the separation of powers which prevents the tyranny of one branch of government. This is especially seen in the nature of the constitution in Article 1 relating to congress, Article 2 relating to the president and Article 3 the supreme court/judiciary which force all three branches of government to hold each other into account. - Presidential nominations of the supreme court face high degree of scrutiny which highlights how the constitution wishes to ensure that all appointments are appropriate through not only having a supermajority to support the appointment to reflect popular interest but ensure that these appointments are sufficient. - Checks and balances within the constitution can still be effective despite the issues pertaining to them as they prevent the concentration of power of one branch in government ensuring that the separation of powers is maintained. This can be achieved through judicial review of not only the government actions but of congress as well e.g., income tax declared unconstitutional by SC which led to congress passing the 16th amendment. - Checks and balances encourage compromise and by-partisanship in law-making between the executive and legislature in theory arguably as through each branch checking the actions of the other branch of government it ensures that the running of all the branches and its institutions are effective. CRTICISMS - Imperial nature of presidency in foreign policy undermines the strength of the constitution’s checks and balances e.g the increasing speed and secrecy of military actions of the president’s role as commander-in-chief limits congress right to declare war Checks can be easily by-passed by president through implied powers Bi partisanship in US politics is significantly undermined by partisanship and polarised politics limiting the chance of cooperation and compromise between congress and the president.

Answer 111

AGAINIST arguments: - Checks and balances are significantly ineffective today as president can easily bypass the checks of congress and the supreme court e.g., Schlesinger's argument of imperial presidency (foreign policy and domestic policy wise) and the use of the president’s implied powers in Article 2 to make an executive cabinet, executive agreement etc. - Additionally, congress can easily evade checks by the supreme court through passing an amendment as done in 1909 where the supreme court ruled that imposing income tax on citizens was unconstitutional, but congress passed the 16th amendment which made income tax constitutional. - Checks and balances largely ineffective as the produce ineffective government and gridlock which is worsened by partisanship and polarised politics in America. - The fact that the constitution only requires compromise but does not allow greater scrutiny of legislation leads to ineffective government as congress largely just passes legislation. - The presence of divided government increases the ineffective nature of constitutional checks and balances system. - Some checks and balances are rarely used or are merely used for a partisan advantage which undermines it effectiveness e.g., the check of impeachment on the president or supreme court justice has never fully removed someone from office. Nixon water-gate scandal as he was forced to resign before even the impeachment trial began. - Politization of judges in the US supreme court has become an increasing problem with supreme court judges being voted in on party line and ideology which shows how checks and balances have largely contributed to the effective running of government.

Answer 112

The Founding Fathers were far from advocates of democracy in its purest form. They were sceptical for both idealistic reasons, such as Madison's belief that it would allow the 'rights of the minor party (to) become insecure' and for selfish reasons. They were all men, largely privileged and educated, some were slaveowners and most were wealthy and therefore had a mistrust of popular democracy. This means that the Constitution they produced in 1787 does not always reflect the twenty first century understanding of democracy

Answer 113

The Electoral College- By having an indirect method of election for the president, the direct influence of the public was limited and could be overturned by the electors. An originally appointed Senate- While the House of Representatives was to be elected, the Senate was to be appointed by the state governments. This was especially important when the individual powers of the Senate are taken into account, giving the unelected branch considerable influence. Equal representation for the states- while having two senators per state served to ensure that small states could not be ignored, it meant that larger populations were essentially undervalued in the Senate. The three fifths compromise- with the number of Congressmen being allocated in part on population, large slave owning states were keen for slaves to be counted, but not as white people. The three fifths compromise valued slaves as three fifths of a person. The role of supermajorities- While these were meant to ensure a simple majority could not be tyrannous over the minority, in the allow either for complete ignorance of a smaller minority's view, or for a small minority to stall major constitutional processes. The Constitution can be assessed 21st Century in terms of how far it upholds different democratic principles- republicanism, liberal democracy and representative democracy.

Answer 114

The vagueness of aspects of the Constitution has allowed for interpretative amendments by the Supreme Court, which has helped to ensure the relevance of the Constitution today and allowed it to be reactive to changing circumstances That the US Constitution is codified means that it is difficult to change and provides clarity about the rights of US citizens which can be enforced by the Supreme Court and the powers and limits of government. The Constitution outlines the powers of each branch government clearly, and through the separation of powers, checks and balances and the short election cycle it should ensure that the government always has to work in the interests of the people it represents. The amendment process clearly has worked and does allow for flexibility of the Constitution while preventing frequent change in response to short lived trends.

Answer 115

The vagueness has allowed broader interpretation than the Founding Fathers may have envisaged, as the growth of the presidency has demonstrated. Equally, in the areas where the Constitution is specific, it has prevented adaptation, most notably in the powers of Congress. The codification of the Constitution has led to both outdated aspects remaining enforced in the 21st Century, as well as having the potential to create gridlock in government through checks and balances. The framework can create gridlock in the case of divided government, and a lack of scrutiny during times of unified government. In either case, the government can be seen to be ineffective. The amendment process has proven immensely difficult, preventing necessary amendments while also having allowed for mistaken amendments to be made

Answer 116

President Trump has railed aginst the 'archaic' Constitution, which suggests that it still has an impact on the government of the US today. Whether or not it has a positive impact is up for debate. This is not the same as the strengths and weaknesses, but what positive and negative impact does the Constitution have on the governance of the USA.

Answer 117

The Constitution ensures that each branch of government has clarity over its role. In practice, this means, for example, that despite winning an election to 'build a wall', Trump is dependent on the funding for this being granted by Congress before he can achieve his policy aim. This is particularly notable as Trump has struggled to gain the finances for his policy even at the start of his term in office when he had a unified government-the Republicans had both the presidency and Congress, the branches retain their own power and can still scrutinise one another. This is in part due to the short election cycle that Congress is subjected to. With the House of Representatives being elected every two years members must be acutely aware of the opinions of their own constituents. Given that Trump's had gained the lowest presidential ratings more quickly than any other president, members of Congress are required to act in line with their constituents rather than their party, which helps to uphold the legitimacy of government. The Constitution also impacts on the policy that government produces by trying to ensure that it should always be compromising. Not only through checks and balances , but also through federalism, government policy should be widely accepted and the product of considerable scrutiny. Failing this, the Constitution allows considerable power to the Supreme Court and the threat of this is ever present when government policy is produced.

Answer 118

While thoughtful scrutiny of government policy can be a result of the Constitution, so too can partisanship and gridlock. The clear separation of powers can lead to a government being unable to act in an effective way. The January 2018 government shutdown was notable not only for its demonstration of this, but because it happened at a time when one party controlled both Congress and the presidency. For 2 days there was no federal government, and all federally run departments also shut down. In 1995 a government shutdown lasted 21 days. Even when broad ideologies are shared by the majority of government, it is possible for the framework of government as laid out in the Constitution to totally obstruct government. Equally, as the codified Constitution can be ruled on by the Supreme Court, it is possible for government policy which responds to modern challenges to be ruled unconstitutional. Campaign finance laws meant to restrict the role of the few wealthy individuals in an election were struck down by the Supreme Court in 2010 and 2014. Comparatively, the vagueness of Article II of the Constitution has allowed for presidential dominance of government in the USA, while Congress has struggled to interpret its power as broadly. This can mean that government policy becomes more dominated by the platform of the president, rather than responsive to the individual needs of the states or districts