The constitution and Federalism

• Evaluate the view that the US Constitution is more effective at checking the power of the president than it is at checking the power of Congress (30)

1) legislative power -judicial review and vetos

2) appointments

3) foreign policy

1) The Constitution is more effective at checking the legislative power of Congress because judicial review means that laws can be declared unconstitutional and the presidential power of veto is strong.

The US Constitution can be seen as effective at checking the legislative power of Congress through the combined use of judicial review and the presidential veto. Although judicial review is not explicitly stated in the Constitution, this power has been used on multiple occasions, such as in United States v Lopez (1995), where the Court struck down the Gun-Free School Zones Act for exceeding Congress’s powers under the Commerce Clause. In addition, Article I, Section 7 grants the president the power to veto congressional legislation, forcing Congress to achieve a two-thirds majority in both chambers to override it, a high threshold that is rarely met. For example, President Trump vetoed the National Defense Authorization Act in 2020, demonstrating the executive’s ability to block congressional action. Analytically, these mechanisms prevent Congress from exercising unchecked legislative authority and reinforce the system of checks and balances by requiring inter-branch cooperation. However, the effectiveness of these checks is limited, as Congress can often avoid judicial scrutiny through carefully drafted legislation, and vetoes may be weakened when Congress attaches legislation to must-pass bills or when presidents are reluctant to veto legislation proposed by their own party. Regardless, the existence and use of judicial review and the veto power indicate that the Constitution does provide meaningful constraints on congressional legislative power.

1) counterpoint

The Constitution is also effective at checking the legislative power of the president because vetos can be overridden

However, it can be argued that the Constitution is also effective at checking the legislative power of the president, particularly because presidential vetoes can be overridden by Congress. Under Article I, Section 7, Congress may override a presidential veto with a two-thirds majority in both the House of Representatives and the Senate, ensuring that the president cannot unilaterally block legislation supported by a broad legislative consensus. This power has been exercised on several occasions, such as in 2016, when Congress overrode President Obama’s veto of the Justice Against Sponsors of Terrorism Act (JASTA), marking the first veto override of his presidency. This demonstrates that while the veto is a significant executive check on Congress, it is not absolute and is subject to constitutional limitation where strong congressional support exists. Although veto overrides are relatively rare due to high voting thresholds and party loyalty, their successful use illustrates that the Constitution prevents excessive presidential dominance over the legislative process. Therefore, this undermines the argument that the Constitution overwhelmingly favours checks on Congress, suggesting instead that it maintains a balanced system in which presidential legislative power is also meaningfully constrained.

2) The Constitution is more effective in checking the appointment powers of Congress because it is rare that a presidential appointment is rejected by the Senate

The Constitution can be seen as less effective at checking the appointment powers of the president because it is relatively rare for the Senate to reject presidential nominations, limiting Congress’s role in constraining executive appointments. Under Article II, Section 2 (1787), the president appoints senior executive officials and federal judges, including Supreme Court justices, subject to Senate advice and consent by a simple majority. In practice, however, the Senate frequently approves presidential nominees, particularly when the president’s party controls the chamber. For example, President Biden’s Supreme Court nominee Ketanji Brown Jackson was confirmed in 2022, while Donald Trump successfully secured the confirmation of three Supreme Court justices between 2017 and 2020, despite controversy surrounding some nominations. Analytically, this suggests that although the Constitution provides a formal check through Senate confirmation, partisan alignment often weakens its effectiveness, allowing presidents to shape the judiciary and executive branch with limited resistance. Evaluatively, while high-profile rejections such as Robert Bork in 1987 demonstrate that the check can function, their rarity indicates that the Constitution is less effective at restraining presidential appointment power than it appears in theory, undermining claims that Congress consistently exercises strong constitutional control over the executive.

2) counterpoint

The Constitution is also effective in checking the appointment powers of the president because their have been rejections and the robustness of the process ensures presidents consider their nominations thoroughly.

However, it can be argued that the Constitution is also effective at checking the appointment powers of the president, as the robustness of the Senate confirmation process has led to rejections and withdrawals, encouraging presidents to nominate candidates carefully. Under Article II, Section 2 (1787), presidential appointments require Senate advice and consent, giving Congress a formal and significant role in scrutinising nominees. This check has operated effectively in practice, most notably in the rejection of Supreme Court nominee Robert Bork in 1987, where concerns over his ideological views led the Senate to block the appointment. More recently, the process has forced presidents to reconsider nominations, such as in 2021, when Neera Tanden withdrew as Biden’s nominee for Director of the Office of Management and Budget due to insufficient Senate support. Analytically, these examples demonstrate that the confirmation process acts as a deterrent, ensuring presidents anticipate congressional reaction and nominate individuals capable of securing broad approval. Evaluatively, although outright rejections are relatively rare, the fact that nominees can be blocked or withdrawn under pressure indicates that the constitutional check is meaningful, reinforcing the argument that the Constitution does provide an effective constraint on presidential appointment power.

3) The Constitution is more effective in checking the ratifying powers of Congress because it is rare that a treaty is not ratified and the president can get around them with executive agreements (could also make this a broader point on foreign policy and inc war declaration).

The Constitution can be seen as less effective at checking Congress in foreign policy, particularly regarding treaties, because while Congress must ratify treaties under Article II, Section 2, in practice most treaties are approved, and presidents can bypass them using executive agreements. Article II gives the president the power to negotiate treaties, which require a two-thirds Senate majority for ratification, creating a formal check on presidential authority. However, historically, the Senate rarely rejects treaties; for example, the United Nations Convention on the Law of the Sea (1982) was only rejected due to partisan concerns, while many treaties pass with relative ease. Furthermore, presidents can circumvent congressional approval through executive agreements, which have been used extensively, such as President Obama’s 2015 Iran nuclear deal, which avoided the need for Senate ratification. Analytically, this demonstrates that while the Constitution formally gives Congress a ratifying role, in practice presidential power in foreign policy often dominates, allowing unilateral action through executive agreements and control over military operations (e.g., frequent use of military force authorizations without formal war declarations). Evaluatively, this suggests that the constitutional check on Congress in ratifying treaties is limited, and the system favors the president in practice, showing that while the Constitution creates checks, their effectiveness is context-dependent and weaker in foreign policy than in domestic legislation.

3) counterpoint

The Constitution is also effective in checking the powers of the president to negotiate treaties because Congress has prevented some signiciant treaties

However, the Constitution is also effective at checking the president’s power to negotiate treaties, as Congress has on occasion blocked significant agreements, demonstrating that the Senate’s ratification power is a meaningful constraint. Under Article II, Section 2 (1787), the president can negotiate treaties but requires a two-thirds majority in the Senate for ratification, giving Congress formal authority to prevent controversial agreements from taking effect. For example, in 1999, the Senate refused to ratify the Comprehensive Test Ban Treaty, which aimed to prohibit nuclear weapons testing, citing concerns over national security and verification. Similarly, in 1982, the Senate rejected the United Nations Convention on the Law of the Sea, despite presidential support, due to fears it would limit US sovereignty. Analytically, these cases show that the constitutional requirement for Senate approval can force presidents to negotiate with congressional expectations in mind, effectively constraining unilateral executive action in foreign policy. Evaluatively, while many treaties are ratified, the existence and occasional use of this power indicate that Congress can act as a real check, limiting the president’s ability to commit the US internationally without legislative consent and demonstrating that the Constitution can be effective in restraining executive foreign policy powers.

Evaluate the view that the weaknesses of the US Constitution outweigh it's strengths and that it is no longer fit for purpose (30 marks)

1) Amendments of (old) constitutions

2) Judicial review

3) Rights and liberties

1) The demanding amendment process has usually prevented frequent and ill-conceived proposals.

The US Constitution is effective at checking rapid or ill-considered changes through its demanding amendment process, which requires both Congressional and state approval. Under Article V (1787), an amendment must first be proposed either by a two-thirds majority in both the House and Senate or by a constitutional convention called by two-thirds of state legislatures, and then ratified by three-fourths of the state legislatures or conventions. This high threshold ensures that only amendments with broad, cross-partisan support are successful. Analytically, this prevents hasty or ideologically extreme proposals from altering the Constitution on a whim, maintaining stability in the US political system. For example, since the Constitution’s ratification, only 27 amendments have been successfully adopted, despite hundreds of proposed amendments, demonstrating the process’s difficulty. The 22nd Amendment (1951), which limited presidents to two terms following FDR’s four-term presidency, illustrates how the process works effectively: it was carefully considered and broadly supported before ratification. Evaluatively, while this prevents frequent and potentially destabilizing changes, critics argue it can also make necessary reforms slow and difficult, as seen in the long struggle for the Equal Rights Amendment, first proposed in 1923 and still unratified. Overall, the demanding amendment process demonstrates that the Constitution provides a strong structural check on both hasty legislative action and executive influence over constitutional change.

1) counterpoint

The amendment process is too difficult - almost impossible to make amendments and good amendments have failed

Despite its role in ensuring stability, the US Constitution’s amendment process can be overly restrictive, making meaningful reform almost impossible even when there is significant public and political interest. Under Article V (1787), an amendment must be proposed by a two‑thirds majority in both the House of Representatives and the Senate, and then ratified by three‑quarters (38) of the state legislatures or state conventions, creating exceptionally high procedural barriers. Analytically, this requirement means that even proposals with substantial support can fail due to partisan division or procedural hurdles. A recent illustration of this is the ongoing struggle over the Equal Rights Amendment (ERA): although the ERA had secured ratification by the requisite number of states by 2020, its constitutionality was challenged because Congress had set a ratification deadline, and efforts in 2023 to remove that deadline and revive the amendment failed in the Senate due to a filibuster and lack of the necessary 60‑vote threshold to proceed.  This shows that even amendments addressing widely recognised issues — such as gender equality — can be thwarted not because they lack merit but because the formal process is so demanding in a polarized environment. Evaluatively, while Article V’s high thresholds are intended to protect the Constitution from frequent or poorly considered change, the practical effect is that potentially beneficial amendments struggle to gain traction, suggesting the process may be too difficult and impede necessary constitutional evolution in modern US politics.

2) The Supreme Court's power of judicial review has made it adaptable through "interpretative amendment"

The Supreme Court’s power of judicial review has made the US Constitution highly adaptable, effectively allowing for what some scholars call “interpretative amendment.” Although not explicitly stated in the Constitution, judicial review was established in Marbury v Madison (1803), giving the Court authority to declare acts of Congress or the executive unconstitutional. Analytically, this allows the Constitution to evolve without formal amendments, as the Court can reinterpret provisions in line with societal changes. For example, in Obergefell v. Hodges (2015), the Supreme Court ruled that the Fourteenth Amendment guarantees the right to same-sex marriage, effectively updating constitutional rights to reflect contemporary social values. Similarly, in Brown v. Board of Education (1954), the Court reinterpreted the Equal Protection Clause of the Fourteenth Amendment to end racial segregation in public schools, overturning the precedent set by Plessy v. Ferguson (1896). Evaluatively, this demonstrates that judicial review provides a flexible mechanism for constitutional change, ensuring the Constitution remains relevant in a changing society without the difficulties of formal amendment under Article V, which requires supermajorities and state ratifications. However, critics argue that this adaptability concentrates power in unelected judges, potentially undermining democratic accountability, yet it undeniably allows the Constitution to respond to social, political, and technological change in ways that formal amendments alone could not.

2) counterpoint

The power of judicial review gives the Supreme Court too much power to "amend" it's meaning

However, the Supreme Court’s power of judicial review can be argued to give the judiciary too much power to effectively “amend” the Constitution without democratic oversight. Judicial review, established in Marbury v. Madison (1803), allows the Court to declare legislation or executive actions unconstitutional, and over time it has effectively reinterpreted constitutional provisions, shaping policy in ways the framers may not have intended. Analytically, this concentration of interpretive power in unelected judges means that significant changes to constitutional meaning can occur without input from Congress, the president, or the states. For example, in Citizens United v. FEC (2010), the Court expanded the First Amendment to allow unlimited corporate spending in elections, fundamentally altering campaign finance law and influencing political power structures, a decision that some argue overstepped the original constitutional intent. More recently, in Dobbs v. Jackson Women’s Health Organization (2022), the Court overturned the longstanding precedent of Roe v. Wade (1973), eliminating federal protection for abortion rights and demonstrating how judicial reinterpretation can have immediate and profound policy consequences. Evaluatively, while judicial review provides adaptability, these cases show that it also grants the Supreme Court extraordinary power to reshape constitutional meaning, potentially undermining democratic accountability and raising concerns that such “interpretive amendments” allow significant policy shifts without the safeguards of Article V’s formal amendment process.

3) Rights and liberties have been protected and it has been able to adapt to changes in US society

The US Constitution has been effective in protecting rights and liberties while remaining adaptable to societal changes, primarily through its provisions and the role of the Supreme Court. The Bill of Rights (1791) enshrined fundamental freedoms, such as freedom of speech, religion, and due process, which provide a baseline for civil liberties. Analytically, these rights have been interpreted and expanded over time to reflect evolving social norms. For example, in Brown v. Board of Education (1954), the Supreme Court reinterpreted the Equal Protection Clause of the Fourteenth Amendment to outlaw racial segregation in schools, adapting constitutional principles to a changing society. Similarly, in Obergefell v. Hodges (2015), the Court recognized the right to same-sex marriage, demonstrating how constitutional protections can evolve to protect new dimensions of individual liberty. Evaluatively, this adaptability ensures that the Constitution remains relevant and capable of protecting citizens’ rights even as societal values shift, without requiring the difficult formal amendment process under Article V. It illustrates that the combination of entrenched rights and judicial interpretation allows the Constitution to be both stable and flexible, maintaining the protection of liberties in a dynamic political and social environment.

3) Some areas have been harder to change (esp. 2nd amendment) and power has tended to lie with those who oppose change

However, not all areas of the US Constitution have been equally adaptable, and in some cases, power has tended to lie with those who resist change, limiting the protection or expansion of rights. The Second Amendment (1791), which guarantees the right to bear arms, illustrates this rigidity. Despite significant public debate over gun control, attempts to reinterpret or amend the amendment have largely failed. Analytically, this is partly because the amendment is entrenched, requiring either judicial reinterpretation or formal amendment under Article V (1787) — both of which are extremely difficult in practice. For example, legislative efforts to introduce stricter federal gun control laws, such as an assault weapons ban, have repeatedly stalled in Congress due to political opposition and the influence of pro-gun lobby groups like the NRA, and the Supreme Court in District of Columbia v. Heller (2008) reinforced an individual’s right to bear arms, further limiting regulatory scope. Evaluatively, this demonstrates that while the Constitution can adapt in some areas, entrenched rights combined with strong political actors opposing change can freeze constitutional interpretation, showing that adaptability is uneven and that power often resides with those resisting reform rather than with those seeking to expand or reinterpret rights.