US Constitutionalism and Federalism Flashcards
What are the key features of the US constitution?
-Codified
-Entrenched
-
What are implied powers?
Powers possessed by the federal government by inference from those powers delegated to it in the Constitution.
E.g. power to draft people into the armed forces is implied by Congress’ enumerated power to raise an army and navy.
What are implied powers generally deduced from?
-Necessary and proper clause.
-Powers of the federal gov can be stretched beyond the specificallyd elegated or enumerated powers.
-Allows Congress to make all laws to carry out the gov’s duties.
‘Elastic clause’
What are reserved powers?
Reserved to the state and the people.
What are concurrent powers?
-Powers passed by both the federal gov and states.
What is the Amendment Process?
-Difficult.
-Two-stage process requiring supermajorities of 2/3 or 3/4.
How many votes were there on amendments under Clinton?
What passed?
-17
Balanced budget amendment 1995
Flag desecration amendment 1995, 1997, 1999
What are advantages of the amendment process?
-Supermajorities ensure against a small majority being able to impose its will on a large majority of people.
-Lengthy and complicated process makes it less likely that it will be amended on a temporary issue.
-Ensures both federal and state governments must favour a proposal.
-Gives a magnified voice to small population states through the Senate’s role and requirement for 3/4 of state legislatures.
-Ensures effective protection of rights against federal government.
Flag Desecration Amendment failed to pass 2006 and 2007.
Federal Marriage Amendment failed to pass 2006 (define marriage as one man and woman).
What are disadvantages of the Amendment process?
-Makes it overly difficult for the Constitution to be amended, thereby perpetuating what some see as outdated provisions e.g. 2016 Senator Barbara Boxer introduced a bill to abolish the Electoral College.
-Makes possible the thwarting of the majority’s will by a small and possibly unrepresentative minority.
-Prohibition Amendment 1918 was still able to be passed despire the process.
-Enhances the power of the unelected Supreme Court to make interpretive amendments e.g. overturn Roe v Wade 2022.
Prohibition Amendment = prohibited the manufacture, sale, and transportation of alcoholic beverages in the United States (repealed 1933).
What is the Bill of Rights?
First 10 amendments to the constitution.
Why is the amendment process so difficult?
FF = Founding Fathers
-FF created a deliberately difficult process.
-Created deliberately unspecific and vague (mostly) to allow it to evolve without needing formal amendment.
-Supreme Court’s power of JR allows it to interpret the Constitution and in effect change the meaning e.g. Bucklew v Preclythe ruling 2019 on ‘cruel and unusual punishment’.
2019 Buclew argued he couldn’t be killed by lethal injection because it could cause him to suffer extreme pain, bleeding, and possibly even suffocation during the execution, as he had a health condition. SC ruled against him, reaffirming capital punishment of 8th Amendment.
How did the FF ensure separation of powers?
-No person could be in more than one branch of the federal government at the same time.
-E.g. 2008 Obama had to resign from the Senate when elect as President, and Biden had to resign when elected as VP.
Checks and balances
What checks does the P have on other branches of gov?
-Can check Congress by vetoeing its bills.
-Can check federal courts by nominating judges and by the power of pardon.
Trump 2020 vetoed NDAA (authorizes the defense budget and sets policy priorities for the U.S. military) due to failure to repeal Communications Decency Act.
Obama pardoned 142 during last 3 weeks in office.
Trump nominated Neil Gorsuch 2017, Brett Kavanaugh 2018, Amy Coney Barrett 2020.
Checks and balances
What checks does Congress have on other branches?
President:
-Amend/delay President’s legislative proposals.
-Override President’s veto.
-Power of the purse.
-Refuse to ratify appointments and treaties.
-Impeachment and trial powers.
Federal courts:
-Propose constitutional amendments to overturn judicial decision.
-Refuse to approve a person nominated to the federal courts.
Congress overrode 4 of Bush’s 12 vetoes, and 5 of Obama’s 12.
Congress attepted to defund 2007 Iraq War.
2010 Senate ratified new START treaty with Russia.
Donald Trump impeached 2020
1987 rejected Reagan’s nomination of Robert Bork.
2016 refused to vote on Obama’s nomination of Merrick Garland.
Checks and balances
What checks do the federal courts have on other branches?
-Can check Congress by declaring a law unconstitutional.
-Can check the President by declaring his actions/his subordinate’s actions unconstitutional.
2004-2008 in 4 SC cases ruled Guantanamo Bay unconstitutional:
Rasul v. Bush 2004
Hamdi v. Rumsfeld 2004
Hamdan v. Rumsfeld 2006
Boumediene v. Bush 2008
Reasons why the Constitution does still work?
-Federalism has proved to be an excellent compromise between strong national government and state.
-Text has proven adaptable to changes in society e.g. abortion, LGBTQ+.
-Demanding amendment process has prevented frequent amendments.
-SC power of JR has made it more adaptable through ‘interpretive amendment’.
Reasons why the Constitution doesn’t work?
-Amendment process is too difficult, making it almost impossible to amend parts that are no longer applicable.
-Power of JR gives SC too much power.
-Some parts make little sense in today’s society e.g. Electoral College.
-Some parts don’t work as the framers of the Constitution would have envisaged.
What is federalism?
A theory of governemtn whereby political power is divided between national and state government, each having their own areas of substantive jurisdiction.
