US Constitution and federalism Flashcards
what are the principles of the US constitution
limited government - having fought against the tyranny of the British the founding fathers refused to create a federal government with unlimited powers - sought to limit it through ‘separation of powers’ and ‘checks and balances’ so no branch gets too much power
were also concerned about individual freedom being limited by a powerful government so many advocated for a bill of rights to ensure a limited government
seperation of powers - divided government into 3 branches legislature (congress) executive (president) and judiciary (Supreme Court) with each separate article in the constitution outlining its power. this is known as the separation of powers. the ‘ineligibility clause’ of article 1 further prevented any one person from holding office in more than one branch at a time
checks and balances - looking to ensure limited government they included checks and balances whereby each branch of the federal government had been given power to oversee the actions of other branches and even in some cases prevent other branches from acting
montesquieu who the founding fathers drew influence from said ‘it is necessary from the very nature of things that power should be a check too power’
bipartisanship - many were skeptical about the role of parties and sought to ensure that the constitution would require compromise. the different elections and appointments for each branch made it difficult fro any one faction to control all of the branches as one tie, going some way to ensuring compromise
federalism - while they wanted to defend the rights of their states , they also recognised the need for a stronger central government.
federalism allowed for a system of shared sovereignty whereby the federal government would have authority over some aspects of political life while states would remain sovereign over others. this would ensure that individual rights were not ignored. limits federal and states powers by dividing political authority.
what is the nature of the US Constitution
codified - written all in one document meaning the source of political power in the USA and any powers that any branch or state is given by the constitution
the constitution is judicable meaning that judges can interpret actions and laws against the constitution to judge whether or not they are ‘constitutional’
entrenched - difficult to amend as its protected by law - protected by article V which outlines the amendment process - makes sure it can be changed in emergency but not so malleable that it would be changed frequently
vagueness of the document- means while the constitution is codified, not every power is outlined within it
vague nature is seen through enumerated powers and implied powers
enumerated - powers outlined in first 3 articles - powers each branch of government has eg in article 1 congress is explicitly given power to ‘lay and collect taxes, duties, imports and excises’ however congress is also given power too ‘make all laws which shall be necessary and proper for carrying into execution the forgoing powers’ meaning it had the right to make any law which allowed congress to carry put there enumerated powers. this vague clause is known as the ‘necessary and proper clause’ and has been used to extend powers of congress over time
not all of the constitution is as vague as this clause. eg the 2nd amendment (right to bear arms) could be seen to be one of the reasons that achieving meaningful gun control has been difficult in the use.
it can be seen that article 1 is more detailed than article 11 which is not suprising as the founding fathers feared of a strong executive - they gave congress explicit powers to try and ensure this
what is the constitutional framework of government
congress - senate and house of representatives
set and collect taxes
regulate foreign commerce
declare war
raise and army
executive - president, Vice President and cabinet
to hold ‘executive power’
commander in chief of the army and navy
make treaties
appoint judges
veto legislation
judicial - Supreme Court and other federal courts
rule on issues arising from the constitution, on conflicts between 2 or more states or conflicts between the federal and state government
checks by congress on the president
legislation - key role of congress is to produce legislation. much of this is suggested by the president at the state of the union address which outlines his legislative agenda of the year. as the legislative branch congress can create, amend, delay and reject legislation eg in every state of the union address between 2010 and 2015 Obama asked congress to pass immigration reform, yet no legislation had been passed by the time he left
veto override - once congress has passed a law it goes to president to sign and become law or to veto it and reject it. congress can override this veto with 2 thirds vote in both houses.
the need of a supermajority makes this difficult
recent presidents have few defeats
eg George w bush 12 vetos 4 were overriden and attempts were made to override 6 more. president obamas final veto of the justice against sponsors of terrorism act suffered an overwhelming bipartisan defeat with only the senate majority leader harry Reid voting no to the veto override
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 says that money cannot be allocated for federal policies without a congressional law. also states that appropriations bills (those bills that deal with tax and spending) should originate in the HOR originally the only elected house of congress. in January 2018 the US government shut down because it lacked the money to operate as a result as a dispute with president trump over obamsas deffered action for childhood arrivals (daca). while the dispute continued democrats in congress held up appropriation bills eventually leading to a government shutdown
declare war - while the president is commander in chief and can move troops , congress is the only branch which can formally declare war. congress has used this power 11x. since ww2 congress has been asked to authorise the use of troops through AUMFs - authorisation for use of military force. this asks congress to give authorisation for president to use military. the AUMF that followed 9/11 authorised military force. aumf has been used by trump Obama and bush to justify there actions
impeachment - congress can bring impeachment proceedings against the president. HOR has power to bring charges and if it passes a simple majority vote a formal trial is held by the senate. for a person to be found guilty a 2 thirds majority vote is needed. although no presidents have been found guilty
ratify treaties - (senate only) - senate approves treaties that have been negotiated by president by a two-thirds vote (67 senators). eg the strategic arms reduction treaty in 2010 passed the senate vote 71-26. a treaty failing to get 2 thirds of votes is not ratified but senate can also choose not to vote. eg the arms trade treaty was sent to the senate in December 2016 but with just weeks till trump took office it never received a vote
ratify appointments (senate only) - presidential appointments to the federal courts, federal government departments and ambassadors are all subject to senate ‘advise and consent’. the senate has rejected nominees such as John tower as secretary of defence in 1989 following accusations of alcoholism and womanising
checks by congress on the Supreme Court
impeach justices - same process as impeaching a president. only happened once for a supreme court justice with Samual chase being found not guilty.
in other federal courts two cases of impeachment with Thomas porteous was found ‘guilty’ of bribery and false statements in 2010
creation of lower courts - congress not only has the power to create lower courts but it also has the power to regulate the supreme courts role in hearing appeals from these lower courts . at its extreme, this is known as ‘jurisdiction stripping’. this gas proven difficult and controversial but remains a constitutional check attempted as recently as 2006 with the military commissions act, which tried to remove from the court the power to hear cases from Guantanamo detainees
ratify judicial appointments - (senate only) - presidential nominations to the Supreme Court have a huge impact on the ideological make up of the court. 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 they can ensure they are suitable. when Antonin Scalia died in 2016 the reasons that the senate did not ratify his replacement, merrick garland was their ideological difference - Scalia was a staunch conservative while garland was a centrist
checks by president on congress
president given powers to stop popular democracy whereby elective representatives act only in self interest
suggest legislation- the us president is directly and therefore they campaign there own policies. with no direct legislative powers the constitution gives them the right to suggest legislation to congress through the annual state of the union address. trump asked congress for more money for border security in 2018 in line with his promise to build a wall
sign/veto legislation - can choose to sign to veto legislation that has been put to him from congress meaning it becomes law or returns to congress. both president bush and Obama used the veto 12 x during their presidency. the threat of veto alone can be enough to prevent congress passing a bill to the president
commander in chief of the armed forces - decides on the stationing and movement of troops + use of weapons. when Obama sought approval from congress for action in syria he said ‘I believe I have authority to carry out this military action without specific congressional authorisation. but he asked them to create a more united decision
checks by president on the judiciary
power of the pardon - president has constitutional right ‘grant reprieves and pardons’ allowing him to excuse someone for a federal crime. this power has few checks on it. on obamas 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 the congress can shape Supreme Court through its ratification or rejection of nominees, the president can try and shape the Supreme Court through who they choose to nominate. obamas nominated replacement for conservative Antonin Scalia was a centrist merrick garland whereas trumps nominee was the more conservative Neil Gorsuch. had garland been appointed, the court would have become more liberal whereas with Gorsuch appointment the court remained conservative
checks by the Supreme Court
judicial review - SC has power to rule whether acts or actions of congress or the president are constitutional. it is rules against congress or the presidency there actions become null and void meaning they no longer have legal effect. eg in the case of boumediene v bush 2008, the court effectively checked both the president and congress at once by ruling the military commissions act passed by congress unconstitutional and allowing detainees held at Guantanamo Bay to challenge their detention in US courts
requirements of branches of government
president would have to be 35 years old, natural born US citizen and resident of US for past 14 years
have to be 30 years old for senate , US citizen for at least 9 years and an inhabitant of the state they are looking to represent
similarly members of HOR 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
the amendment process
the two stage vote requires a super majority at each vote to ensure its not too flexible or rigid
must go through a proposal and ratification stage
must be ratified by 3/4s of state legislatures
why are there so few ammendements -
in the first congress there was only 65 people in HOR and 26 in senate meaning only 44 in HOR and 18 senators need to agree to proposal for it too pass first stage however today the HOR has 435 members needing 287 of them to vote together and senate as 100 needing 67 of them . To achieve this is very difficult.
simarely the second stage used to just need 13 states to agree but today 38 is needed
usa is also expanded in population and culture meaning states have very different views therefore they don’t agree
disadvantages of the amendment process
difficulty in ensuring the constitution remains up to date - there are changes in modern society which are not reflected in the constitution due to difficulty in adding them. former justice Stevens identified 6 areas of constitution he felt needed reforming including campaign finance, the death penalty and gun control
outdated aspects of the constitution still existing - in centuries since constitution was passed the USA has changed dramatically . its population bigger, technology changed, political and cultural ideas moved on. while some of these have been reflected in amendments such as changing the senate from an appointed to elected house many outdated aspects still remain. eg Stevens thought the 2nd ammendmnt should become applicable to only those serving in militia and capital punishment should be removed
ignorance of minority of interests - super majorities needed results it being difficult for a minority to bring abt change meaning their rights can be ignored
power given to supreme court - has vast amount of power interpreting the meaning of the document. the supreme court has therefore been able to change the constitution considerably yet it is unelected and unaccountable. the courts decision can be overturned by an amendment but as the process is so difficult this has only happened once (16th amendment)
tyranny of the minority - necessity to gain super majorities means it is possible for just a minority to prevent an amendment being passed. eg the equal rights amendment, which would have outlawed discrimination on the basis of sex passed congress but only ever 37 states ratified it , one short of the 38 needed. the 13 states that did not ratify it only accounted for 24% of the us population at the time
despite the difficulty there have been mistakes - the 18th amendment in 1920 prohibiting the sale of alcohol. just 13 years later this was repealed
advanatages of the amendment process
broad support - given the need for super majorities any amendments must have broad support across the USA. this is important as with the diversity in the USA its important it reflects the beliefs of as many Americans as possible.
prevents short lived trends becoming amendments - the difficult nature helps to prevent amendment in response to unique circumstances which may not stand the test time. this can be especially important in the wake of the increased party polarisation that has been evident. while prohibition was an error 1 mistake in over 200 years suggests the process works quite well
protects the constitution and its principles - the acceptance of seperation of powers and republican ideals are key to the political system of America - . this difficult amendment process also means these ideals laid out by the founding fathers are protected
prevents tyranny of large states and single parties - if amendments were made on population alone the large states could dominate making smaller ones irrelevant and views ignored. with the ratification stage recognising states individually each as worth in us democracy. simarely the need for supermajorities at proposal stage small parties are stopped from being able to force through amendments such as the balanced budget amendment
few changes - total of 27 amendments can be seen as an advantage.principles and rights of the constitution are therefore clear and unchanging
it works - may be difficult but 27 amendments have been made
is the amendment process effective today
yes -
ensures broad supports. recent mass shootings in the USA mean repealing the 2nd amendment may seem obvious. however in a 2018 yougov poll only 1 in 5 Americans want it repealed
ensures amendments are well thought out - a balance budget amendment has been proposed 134 times since 1999 to try and ensure government spends only what it earns in taxes. of those 38 during 2011 and 2014 when republicans controlled the HOR, a figure more than double the previous two congresses under democratic control, making it seemingly a party political issues
protects principles of the constitution
prevents tyranny of the majority - the most populous 5 states account for nearly 37% of the population. as shown by how Hilary won California in 2016 helping to explain her win in the popular vote. the amendment process ensures that big states cannot simply amend the constitution to suit themselves
No -
necessary amendments have been prevented including those on campaign finance reform. the first presidential election costing over a billion dollars was in 2008 and in 2012 the candidates each raised over 1 bill. these massive sums challenge the liberal idea of one man one vote and show the nessisity of such amendment.
outdated aspects still remain - due to difficulty in passing amendments. in the last few us presidential elections the electoral has produced a different winner to the popular vote. undermines liberal democracy
allows for minorities to be ignored - the defence of marriage act 1996 defined marriage federally as being between one man and one woman. while the supreme court eventually invalidated the act through its rulings in Windsor v United States and obergefell v Hodges the chances of an ammendmembt recognising same sex marriages is very slim seeing as only 4% of us adults identify as lgbt
a difficult amendment process allows for a very powerful Supreme Court which can seemingly make laws. in 2018 alone the court issued a controversial ruling in favour of a Colorado baker who refused to make a wedding cake for an lgbt couple- rule and upheld president trumps order which barred travellers from 5 muslim majority countries from entering the USA.
main charateristsicd of US federalism
there are federal government, state and shared concurrent powers outlined in the constitution.
federal government
declare war
make treaties
foreign commerce
coin money
state
establish local government
regulate elections
maintain a militia
concurrent
make constitutional ammendments
levy taxes
establish courts
the division of powers laid out in the constitution was meant to ensure
ways in which states do and don’t retain sovereignty
do retain sovereignty
citizens rights - rights of citizens vary widely between states. states such as Alaska allow citizens to get a drivers permit at 14 while in Massachusetts a citizen must be 16. equally restrictions on abortion, euthanasia, gun control and majuana vary between states.
criminal punishment - death penalty is a huge difference between the states - currently 30 states allow it. between them there are 5 different methods of execution and each state does not use them all. also in Florida , Iowa and Kentucky a convicted felon does not nessarily get right to vote back upon being released
electoral regulation - article 1 allows states to run their own elections. this has resulted in huge variations of how there run. states can use paper ballot, electronic voting, a mail ballot. furthermore electronic voting states can do so with or without a paper trail. this caused controversy in that the department of homeland security said that 21 states had there voting systems targeted by hackers in 2016. states also allowed to set boundaries for the districts in their states leading to cases over gerry pandering - manipulation of constituency borders to give a party political advantage.
taxes - as well as being taxed federally, citizens are taxed by their state. tax varies massively between states with 0% in seven states to over 13% in California
don’t retain sovereignty
citizens rights - drinking age is set federally at 21and the Supreme Court case of obergefell v Hodges in 2015 effectively legalised same sex marriage in every state
criminal punishment - put numerous restrictions on the use of the death penalty cases such as Kennedy v Louisiana roper v Simmons all limit the use of the death penalty . the Supreme Court can challenge state courts in any case they choose to hear
electoral regulations - numerous federal laws and amendments have extended voting rights at national level , lowering the voting age and vote rights regardless of gender or race. campaign finance laws also set at federal level
