US Constitution Flashcards
What are the 4 features of the nature of the constitution?
Codified
Entrenched
Judiciable
Revolutionary
How many amendments are there?
27
What is the aim of the constitution?
To create a government with enough power to act on a national level but not enough to put fundamental rights at risk
History - what happened in 1781?
- political powers given to each state
- federal government emerges
- both state and federal equally important
What are the 2 chambers of Congress?
The House of Representatives
The Senate
Why is Congress split into separate houses?
Larger population states wanted Congress to be proportional by population (Representatives)
Smaller population states wanted Congress to be equal state representation (Senate)
What is the Three Fifths Compromise
- States couldn’t decide on how to count slaves in the population for voting purposes
- decided slaves were to be worth 3/5 of a person
What is the Bill of Rights?
The first 10 amendments
What is the 1st amendment? (w/example)
Freedom of Speech
e.g. Snyder v Phelps 2011 - SC ruled in favour of Westboro Baptist Church’s right to protest outside of military funerals
What is the 2nd amendment? (w/example)
Right to bear arms
e.g. Court in District of Colombia v Heller 2008 - found that Colombia’s handgun ban and requirement of rifles and shotguns to be kept unloaded and disassembled violated the 2nd amendment due to self defence purposes
What is the 3rd amendment? (w/example)
Forbids the forcible housing of military without the homeowner’s consent
e.g. Engblom v Carey 1982 - national guardsmen considered soldiers therefore broke the amendment when they were housed during a strike
This was also first time the 3rd amendment was interpreted! (interpreted homeownership as the general control over access to a property)
What is the 4th amendment? (w/examples)
Unreasonable search and seizures
e.g. Carpenter v United States - found that the government’s access to cell site location information (CSLI) without a search warrant violates this
What is the 5th amendment? (w/example)
right to remain silent
e.g. Miranda v Arizona 1966 - anyone in police custody must be told their right to remain silent and their right to consult with their lawyer
What is the 6th amendment? (w/examples)
Right to a fair trial
e.g. Batson v Kentucky 1986 - jurors cannot be dismissed based solely on race
e.g. Gideon v Wainwright 1963 - states required to provide attorneys to those who cannot afford one - extension of 5th and 6th
What is the 7th amendment?
Right to a jury trial
What is the 8th amendment? (w/example)
Cruel and unusual punishment
e.g. Hope v Relzer 2002 - Hope was handcuffed to a hitching post by guards for 7 hours, forcibly removed his shirt so he would burn in the sun, received water once/twice, was taunted by letting dogs drink before him then spilling the water on the ground in front of him - Courts ruled that it was a cruel and unusual punishment in the 20th C and allowed Hope to sue the guards but the case was dismissed
What is the 9th amendment? (w/example)
Citizens have rights which have not been enumerated in the Constitution
e.g. Griswold v. Connecticut 1965 - SC agreed the banning of contraceptives for married couples was a violation of their ‘marital rights’
What is the 10th amendment? (w/example)
Rights which aren’t specifically given to the federal government are reserved for states of the people
e.g. Reno v Condon 2000 - the Driver’s Privacy Protection Act of 1994 removed states’ rights to sell private information from DMVs (i.e. social security, medical information, address, phone number) which was becoming an issue with private businesses and human trafficking concerns - court ruled that this was within the rights of Congress under the Commerce Clause
Why is there little change to the constitution?
- Founding Fathers made it purposefully difficult to change (i.e. supermajorities)
- it is deliberately vague (formal change is unnecessary, it can evolve)
- SC has judicial review
- people are cautious about change (i.e. the alcohol prohibition in 1919 (18th amendment) which was repealed in 1933, leaving some ‘dry states’ (21st amendment)
What are enumerated powers?
Powers explicitly stated in the Constitution
e.g. Article 1, Section 8 lists all the congressional powers
What are implied powers?
Powers not written in the Constitution, but are needed to carry out enumerated powers
e.g. enumerated power is that Congress can raise an army/navy, but the implied power is that they can therefore draft people
What is the Elastic Clause?
Congress can over-stretch their powers
wrote in Article 1, Section 8
Pros of the Elastic Clause
✔ power to pass laws more easily
✔ can carry out their enumerated powers
Cons of the Elastic Clause
✘ controversial
✘ subjective
What are reserved powers?
Certain rights are reserved for states/people
e.g. Collector v Day 1871 - Day questioned if Congress had the power to tax states and state officials - SC ruled this is one of their reserved powers
this was overruled because of O’Keefe v. New York 1939 - ruled New York had the authority to levy a non-discriminatory income tax on a federal employee who resided in the state
What are concurrent powers?
Powers shared by Federal government and states
e.g. taxing, courts, roads etc
What is the Supremacy Clause?
Legitimate national law supercedes conflicting state law
e.g. Copper v Allan 1968 - SC rejects attempts by Arkansas to nullify the SC’s decision to desegregate schools - Arkansas was acting based on state rights but Supremacy Clause overruled
How is the Constitution phrased?
Specificity
- sometimes very specific
e.g. Article 1 - ‘power to collect taxes’
Vagueness
- sometimes very vague to allow for interpretation
e.g. Article 1 - power of Congress to ‘provide for the common defence and general welfare of the United States’
✔ can allow the Constitution to reflect modern society
✘ SC can become too powerful through biased interpretation - e.g. Brett Kavanaugh’s appointment in 2018 - overturned Roe v Wade
How can amendments be made?
Method 1:
- proposed by 2⁄3 of Congress
- ratified by 3/4 of state legislatures
- used 26 times
Method 2:
- proposed by 2/3 of Congress
- ratified by ratifying conventions in 3/4 of states
- used once (end of prohibition)
Pros/Cons of the amendment process
✔ super majorities means small majorities can’t enforce their will on a large majority
✔ lengthy + complicated process means amendments for temporary issues won’t be made
✔ ensures both states and federal government approve
✘ difficult to change, therefore keeps outdated provisions - e.g. the electoral college
✘ difficult to make formal amendments, therefore SC is made more powerful, allowing for interpretative amendments
Bill Clinton’s amendment attempts
17 votes on constitutional amendments
6 years of 8, Congress was Republican
Balanced Budget 1997 (states cannot spend more than their income) - lost by one vote
Flag Desecration Amendment - lost by 4 votes in the Senate
George W Bush amendment attempts
6 amendment attempts
Flag Desecration Amendment 2006 - 1 vote off
Barack Obama
Balanced Federal Budget
Flag Desecration
Guarantee equal rights for men and women
Congressional term limits
5 key principles
- Separation of powers
- Checks and balances
- Federalism
- Bipartisanship
- Limited government
How are powers separated? w/example
No one can be in more than one branch of government at the same time
e.g. Obama had to resign from the Senate to become President(2008)
What is the positive of checks and balances? w/examples
Encourages bipartisanship
i.e. having different parties in Congress to President = more scrutiny
e.g. Bush Education Reform 2001-02 by working with senior democrats
e.g. Clinton - healthcare reform rejected as he wouldn’t work with an republicans
What are the negatives of checks and balances?
Gridlock
Divided Government
i.e. one party in House and another in Senate
Ineffectiveness
What are examples of gridlock?
Clinton (1995)
- some federal government shutdown as Republican Congress wouldn’t pass the federal budget
Trump (Dec 2018-Jan 2019 )
- government shutdown due to House disagreeing with Trump’s funding of the Mexican border wall
What are examples of divided govt?
1969-2003 divided (27 years)
What are examples of ineffectiveness?
Treatment of SC nominees by Congress
e.g. Bork nomination rejected in 1987 by democrats
e.g. Garland nomination by Obama
When have checks and balances been not useful? w/examples
Persian Gulf
1964 - Congress passed the Gulf of Tonkin Resolution
gave President Johnson power to take an necessary measures to retaliate or promote peace in south east Asia
Vietnam
1964 resolution gave Johnson power to put troops in Vietnam in 1965
The War Powers Resolution 1973 passed so presidents must consult with Congress in hostilities
Watergate
Nixon ordered to hand over Whitehouse Tapes
Resigned 16 days later to avoid impeachment (1st president resignation)
Pardoned by Ford
How can the Executive check Congress?
Veto bills
Recommend legislation
- usually at the State of Union Address (in Jan to Congress and SC)
Power of Pardon
e.g. Ford pardoned Nixon (only time)
When has a president vetoed bills?
Biden
- Comprehensive Policing and Justice Reform Amendment Act of 2022 - would weaken bans on neck restraints and deescalting techniques used by police officers
Bush
- Iraq Withdrawal Bill 2007
When has a president recommended legislation?
Bush (2002) - focus on the War on Terror
How can the Executive check the Supreme Court? w/examples
Nomination of federal judges
e.g. Clinton - Ginsburg (1993)
e.g. Trump - Kavanaugh (2018)
How can the Legislature check the President? w/examples
Block/amend/reject legislation from the President
Impeachment
- House simple majority, Senate holds trial
- Ratify treaties by the President
Power of the purse
Congress must vote on the budget
e.g. Clinton (1995) - some federal government shutdown as Republican Congress wouldn’t pass the federal budget
Senate must confirm federal appointments
e.g. Bush - John Tower rejected from Defence due to alcohol abuse (1989), 47-53 majority
Power to declare war
not used since 1941
president can send in troops w/o declaring war
e.g. G. Bush - Desert Storm in 1990 (Gulf War)
Power of investigation (mainly through committee)
e.g. Bush - 9/11 security handling
Override vetoes
2/3 majority needed
e.g. Obama - Justice Against Sponsors of Terrorism veto overruled (narrows the scope of legal doctrine of sovereign immunity)
When has a legislature blocked presidential bills?
Clinton - request for minimum wage increase rejected (1999)
When has a legislature impeached a president?
Johnson and Clinton impeachment but neither lost their office
Trump twice
How can the Legislature check the Supreme Court? w/examples
Impeach Justices
e.g. 1986-89 - 3 federal judges removed - Clairborne for tax evasion, Hating for bribery, Nixon for perjury
Constitutional Amendments
SC can overrule
e.g. 1896 - 16th amendment passed to allow federal income tax
e.g. Democrats want to pass legislation which codifies Roe v Wade
How can the Judiciary check the President? w/examples
Judicial Review
Acts of an individual can be unconstitutional
e.g. 1974 - SC ruled Nixon had to hand over the Whitehouse tapes
How can the Judiciary check the Legislature? w/examples
Judicial Review
Acts passed by Congress can be unconstitutional
e.g. Shelby v Holder - struck down Voting Rights Act formula
What is bipartisanship?
Both parties/houses working together
Has the recent US government been bipartisan?
Yes - Biden encouraged cooperation with gun reform
No - Trump impeachment and 3 shutdowns in the past 6 years
Is Biden’s government bipartisan?
Yes
- Student debt forgiveness ($143bil cancelled for 4mil people)
ev: was under his action, not Congress
- Bipartisan Safer Communities Act (harsher checks on young gun buyers)
No
- Covid-19 Relief Bill rejections
- Infrastructure Bill (clean water, universal broadband, clean power = less federalism) rejected
What is federalism?
Political power divided between national government and state government
How is federalism expressed in the Constitution?
Not explicitly written, but a given through enumerated and implied powers and the 10th amendment
What powers do the federal/national government have?
Power to…
declare war
make treaties
coin money
establish a military
regulate interstate and foreign commerce
What powers do states have?
Power to…
establish local government
regulate elections
maintain a military
assume powers not listed in the constitution
⤷regulate: schools, professional licences, interstate commerce
What powers do states and the federal government share?
Concurrent powers:
constitutional amendments
levy taxes
establish courts
What type of federalism did the US start with?
Dual Federalism:
states did most of the governing (supported through SC rulings)
What type of federalism did the US adapt from the 1930s to the 1960s?
Cooperative federalism:
federal government power supreme to states
cooperation between state and government over policy that were usually state-ran
emerged due to Wall Street Crash 1929, WWII, and the Cold War
What type of federalism is currently in place?
New Federalism:
called for by Nixon
less federal power
power back to states
What can federalism link to in the UK?
Devolution - mainly in Scotland
i.e. tax and courts
What does each state have which reflects federal government?
Executive ~ Governor
Legislature ~ State Congress
Judiciary ~ Supreme Court
How is regional power (state) protected by the constitution?
Federal govt can’t reduce state powers without the state’s consent - must be a supermajority within the state
Regional powers are equal
all states can create their own tax laws, or none of them can
What are sanctuary cities?
Cities which have defied changes made by federal government
What are examples of sanctuary cities?
California 2018
passed the California Values Act - ensures no state and local resources are used to assist federal immigration enforcement
⤷Trump threatened to withhold federal funds but federal courts ruled this unconstitutional
Chicago
Judge Harry D. Leinenweber agreed with Chicago’s right to defy Trump’s immigration policy due to its “irreparable harm”
When has federalism caused issues?
Covid-19:
states and districts had different lockdown restrictions/ mask mandates etc
Trump disagreed with the lockdown and had feud with the governor of NY
⤷ Trump said it will be his decision to “open up the states”
Hurricane Ida 2021
major damage in Louisiana
damage cost $70-80bil, state revenue was $36bil
Biden couldn’t enforce assistance until the governor requested assistance
Miami building collapse 2021
Biden had to wait for Governor DeSantis to declare an emergency (he did the same day)
How are laws different per state?
Gun Laws:
New Hampshire - permit-less carry
California - 50 gun safety policies (the most)
Marriage Laws
most states - 18y/o
Mississippi - both 21 or male 17y/o and female 15y/o with parents’ permission
Marijuana
Colorado - 1st state to legalise recreational use
Indiana - up to 6months jail, £1000 fine
Death Penalty
Pennsylvania- yes
NY - no
Voting
Florida - convicted felon may not be able to vote after release
What are some federal laws?
National drinking age - 21y/o
How did federalism function under Bush?
2001-03 = 33% increase in federal spending
2002 = No Child Left Behind Act
2003 = Medicare initiative - $400bil cost
125% increase on defence spending
Homeland security = 21% of federal budget ($69bil)
How did federalism function under Obama?
focused on domestic policy
increased state assistance - $246bil ($20bil under Bush)
2010 - Obamacare
negative exit poll
⤷29% happy with his role in the federal govt
⤷50% he was doing too much
How did federalism function under Trump?
2018 - funding cuts to increase defence
⤷Environmental Protection Agency
⤷State Department
⤷Agricultural Department
lack of state funding during Covid
How did federalism function under Biden?
Gun control attempts
⤷failed - Texas banned federal firearm statutes
Healthcare
⤷failed to keep abortion legal
Success - $300 extra to unemployment
benefits per week
States: Who had the power during Covid?
State powers:
Only governors could implement lockdowns and restrictions
⤷NY - Cuomo had lockdown by mid march
⤷ 32/50 states in lockdown by April
⤷June - 16/50 states with face mask mandates
States controlled businesses and schools
Federal: Who had the power during Covid?
Federal Powers:
lockdowns in March based on federal guidelines
Trump said he could overrule governors (in argument with Cuomo)
Trump had control over who entered the country
What are the 5 types of consequences of federalism?
Legal
variation of state laws
⤷ i.e. age of consent, driving age, marijuana
Policy
variation of policies
⤷ i.e. healthcare, immigration, environment protection
Elections
all elections are state-ran
Political Parties
parties are decentralised and state based
Economic
grants go to states
income tax
How is the constitution weak?
Vagueness
Codified
Divided Government + gridlock
Unified Government = lack of scrutiny
Necessary amendments can’t be made
How is the constitution strong?
Vagueness
Codified
Separation of powers
Informal amendments
