US Constitution And Federalism Flashcards
Nature of the US Constitution
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Vagueness of the const.
Const. = short Many enumerated powers (explicit) Implied powers (interpreted powers)
The vagueness means that there is room for the const. To evolve as the wording can be interpreted differently and accordingly to the current society
What is Codification and Entrenchment?
It is written in nome document
Codification makes the const.
-Authoritative: on a higher level than ordinary law, sets precedent
-Entrenched: (protected from change in law) hard to amend/abolish
J-udicable: other laws can be judged against it, whether other laws are constitutional or not
Why is the const. Codified and entrenched?
- to prevent it from being easily changed by a single institutions or political part in their own self interest.
What is the necessary and proper or elastic clause?
Art. 1, S.8 Const. States: congress has the power to make all laws which shall be necessary and proper for carrying into execution the forgoing powers
Known as ‘elastic’ clause because it allows congress to stretch it powers
Advantage of the Vagueness
Allows the const. To survive for a long time as its meaning can be adapted to fit modern society without formal amendments
Disadvantages of vagueness
- the const. Could fail to regulate political practice: the const.meant to regulate politicians/set out rules of political game - vagueness undermines authority of SC - people reject newly established rulings (e.g. Obergefell v Hodges)
- the SC could become too powerful: vagueness allows individual Js to apply own ideologies when ruining on a case (liberal Js rule for a more liberal outcome) (e.g. 8th amendment - phrase ‘cruel and unusual’ - been used by some Js to allow death penalty - others say it makes the DP unconstitutional)
- there could be signs any conflict: lack of clarity leads to disputes - each side claiming their political view is more legitimate - (e.g. massive divide between Dem. And Rep. on matters like gay rights and Affordable care act)
Obergefell v Hodges (vagueness of const.)
- stated gay marriages was a constitutional right
- some politicians and a member of the SC claimed the SC was no longer following the const. And using the vagueness to make up rules as it went along
What is the Amendment Process?
- Amendment is proposed by 2/3 cote of each house of Congress or national convention by congress at request of 2/3 vote of state legislature
- Amendment is ratified by 3/4 of the state legislature or 3/4 of the state convention
The amendment process
It is important that federal govt. (congress) and the states agree - this ensures that federalism is protected - federal govt. can not restrict the power of states
There have only been 15 operations amendments passed in over 200 years
There have been 11,000 proposals
Congress have accepted 33 of them
Only 27 have made it past the states ratification
Examples of failed amendments
- Proposal passed by congress that failed to receive sufficient state support: The Equal rights amendment, the District of Columbia voting rights amendment
- proposals voted on in congress that did not receive a 2/3 majority in each chamber: the flag protection amendment, the federal marriage amendment
- proposals introduced in congress but not voted on by both chambers of congress: right o vote amendment, saving American democracy amendment
Advantages of the formal amendment process
- It protects key principles of political processes: Some political principles = so important it should be difficult to change them - Basic democratic ideas (elections every four years and separation of powers). (Founding Fathers made some ideals almost completely immune from change - e.g. requirement for a republic to be a guaranteed form of government
- It protects states and upholds federalism: America has a tradition of respect for states rights -entrenchment helps to maintain this.
- ensured through the 10th amendment and the amendment process, as well as small states receiving equal representation in Senate and the electoral college. (E.g. Proposals to undermine the power of states failed through amendment process - attempts to remove the electoral college)
- It prevents ill thought through amendments:
- it prevents abuse of power:
Disadvantages of the formal process
- it is difficult to remove outdated aspects
- it is difficult to incorporate new ideas
The amendment process is undemocratic
It gives the SC excessive power
The Key Features of the US Const and their effectiveness today
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What is federalism?
System in which sovereignty is shred between a central govt (federal govt) and individual states, with each having their own specific rights
What is separation of powers?
Where the 3 key bodies of the govt. (legislature, executive and judiciary) each have their own powers, personnel and buildings
The SOP ensures that a system of checks and balances prevents too much power resting with any one body
What are checks and balances?
The dictation of powers between the 3 branches of govt., where each branch has a direct ability to prevent action from another branch.
What is bipartisanship?
Attempts within the structure of the US so gross to try to ensure that the 2 main parties must work together in order to fulfil congressional functions
What is limited government?
The role of govt. is limited by checks and balances and a separation of powers, as a bulwark against corruption
The main characteristics of US federalism
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What are the 2 essential features of federalism?
- The powers of regional government or states is protected by the Const.: federal govt. = unable to reduce power of the sates without their consent - there’s shared sovereignty between fed. Govt. and the states - amendment process prevents change to state powers w/out consent of 2/3s of the states
- Regional powers are equal: all states = same level of power - e.g. all states can set their own tax rates or non can - states are free to apply their powers differently BUT all states have same level of decision making power
The relationship for the federal system of govt. with the states
Nature of federalism means - there is a clear division between federal and state power
Historically - clear division between the roles of the 2
State powers used to have higher level of impact on lives of citizens than fed. Govt. (states would deal with domestic policy: education and economic policy)
Fed. Govt. was limited to a fro egg policy and security role
Key aspects and changes to the relationship between the federal govt. and state which affect this power share
- The economic crash in 1929 and the response of the Roosevelt presidency to the Great Depression:
- The fed. Govt and states are interconnected
- Regional powers are equal:
- The Const. Is supposed to provide the US with a dividing line:
- In other cases, the federal govt. passes laws that force states to comply:
- States create a range of their own laws independently from the federal government:
Gonzales v Raich
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