US Constitution and Federalism Flashcards
Nature of the Constitution
Vagueness of the document
Constitution scholars refer to the constitution containing enumerated powers and implied powers which are powers that are explicitly given to each branch of government.
Implied powers are those that are just suggested or are required for enumerated powers to be used.
Implied powers give the Constitution vagueness - they allow Congress the freedom to make necessary laws and to use powers that the founders had not thought of.
Codification
The constitution is codified, meaning that it is all written in a single document.
This document was created the ‘Founding Fathers’ during the American Revolution in 1776
Ratified in 1788 and came into force in 1789 and consists of 7 articles and 27 amendments.
First 10 amendments, ratified in 1791 are known as the Bill of Rights.
Entrenchment
The US constitution is entrenched - so it cannot be changed without a supermajority (2/3rds of votes in Congress) -
Article V entrenches the US constitution, requiring a supermajority to change amendments or a ¾ majority in a ratifying convention of the states.
The constitutional framework (powers) of the US branches of
government
Executive
Checks on the Legislative can involve proposing laws, and being able to veto laws. They can call special sessions of Congress and make appointments. They have the power to negotiates foreign treaties
Checks on the Judicial Branch including being able to appoint federal judges and grant pardons to federal offenders
Legislative
Checks on the Executive can involve the ability to override President’s veto. They also can confirm executive appointments, ratify treaties and can declare war. They also can appropriate money and can impeach and remove President
Checks on the Judicial Branch include creating lower federal courts. Another one is that they can impeach and remove judges and propose amendments to overrule judicial decisions. They also approve appointments of federal judges
Judicary
Check on the Executive Branch Can declare executive actions unconstitutional
Check on the Legislative Branch Can declare executive actions unconstitutional
Advantages of the Amendment Process
The process is deliberately difficult, with Congress and states needing to agree, and super-majorities required.
Prevents short-lived waves of public sentiment and opportunistic politicians from changing the Constitution too easily.
Both states & federal government are involved, with super-majorities ensuring a broad consensus, legitimising the amendment.
The Constitution was written to be unspecific in places, to allow it to evolve without the need for formal amendments.
The Supreme Court’s power of judicial review means that the Constitution can be interpreted without formal amendments.
The US Constitution works – it is the world’s oldest functioning example of a codified constitution.
The process being so difficult protects rights
The Federal Marriage Amendment would have defined marriage as between a man and a woman. The House voted for it 236-187 in 2006, but this killed the amendment as it required a super-majority of 290.
Disadvantages of the Amendment Process
The process is too difficult, as only 17 amendments have been passed since the 1791 Bill of Rights.
The process is not difficult enough, as the 18th (1919) prohibiting alcohol and the 21st (1933) repealing this shows.
The process being too difficult gives too much power to the Supreme Court through judicial review.
The Supreme Court is now the primary means of amending the constitution, e.g., Brown v Topeka 1954, Roe v Wade 1973, Obergefell v Hodges 2015.
A determined minority can block an amendment, leading to a ‘tyranny of the minority.’
The Balanced Budget Amendment 1995 passed the House and was one vote short of passing the Senate.
The Flag Desecration Amendment passed the House in 1995, 1997, 1999, 2001, 2003 and 2005. However, it has never passed the Senate, but came within four votes in 2000 and one in 2006.
Even popular proposals are not guaranteed to pass.
Equal Rights Amendment would have enshrined gender equality. It passed both houses of Congress in 1972 but received only 35 of the 38 required state ratifications - clearly had the support of the majority on both a federal and state level but was not ratified.
Important Amendments
1st amendment: Freedom of religion, speech, press and assembly. No established national religion is permitted.
2nd amendment: The right to keep and bear arms.
10th 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. Allows states to make their own laws
13th amendment (1865): Abolishes slavery
22nd amendment (1951): Limits a President to two terms in office.
Key Features of the Constitution
Federalism
One of the main themes of Federalism is decentralisation
Separation of powers and checks and balances.
Bipartisanship.
Limited government
Key Features of the Constitution - their effectiveness today
Federalism
Dual Federealism (1780-1920) had a focus of state rights and political power division are clear
Cooperative Federalism (1930s - 60s) created new Departments of Defence (1949), Health, Education, & Welfare (1953), Transportation (1966) and increased catagorical grants for projects. Political power division are less clear
New Federalism (1970s - 2000) there was a shift back to state power and an increase in block grants on general areas
Separation of powers and checks and balances.
Bipartisanship.
Limited government
The main characteristics of US federalism
The nature of the federal system of government
The Federal Government relationship with the states
Interpretations and debates around the US Constitution and
federalism.
The extent of democracy within the US Constitution, its
strengths and weaknesses and its impact on the US
government today.
The debates around the extent to which the USA remains
federal today
