Nature
Nature
- codified so: authoritative, entrenched, judicable
- separation of powers
- intended for clarity → impossible to cover all future possibilities hence ambiguity
Constitutional framework
- 7 articles:
- 1-4: Key Institutions
- 5: Amendment Process
- 6: Supremacy Clause
- ==[7: ratification process]()==
Bill of Rights 1791
- state + federal rights (1st 10 amendments)
Vagueness
Congress:
Enumerated | Implied |
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taxes; borrowing; commerce; currency; war etc. | elastic clause; interstate commerce clause |
President
head; nominations; proposals; veto; pardons | commander in chief |
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Courts
rulings on cases | judicial review |
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Important amendments
- 1: freedom of religion expression + speech
- 2: right to bear arms to form a militia
- 5: due process
- 8: cruel and unusual punishment
- 10: state powers reserved
- 13: abolished slavery (civil war)
- 14: equality
- 15: voting rights
- @@16: federal income@@
- 19: womens’ vote
Elastic Clause
- Article 1 Section 8
- provides Congress with all the powers “necessary and proper”
- justifies federal expansion e.g. est. national bank with Mculloch v Maryland 1819
- Concerns:
- Constitution could fail to regulate political practice
- e.g. rejection of Obergefell as SCOTUS seen as abandoning Const.
- Supreme Court could become too powerful
- e.g. varied interpretations of 8th (death penalty ok?)
- conflict + divisions + partisanship
Amendment Process
- Proposed by 2/3 Congress or national convention
- Ratified by 3/4 state legislatures or conventions
- state power prioritised → can ratify and propose
Examples:
- DC voting rights 1985: didn’t receive sufficient state support
- Flag protection: proposal to overturn US v Eichman failed at Senate
- Right to vote: in response to Shelby v Holder 2013 wasn’t voted on in Senate
- Saving American Democracy: Sanders proposal 2011 to overturn CU v FEC 2010 (not voted on in House)
Formal Process
Advantages | Disadvantages |
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protects principles → e.g. sep powers states + federalism upheld abuse of power prevention (though GWB requested line-item veto power 2006, enhancing power); deliberation → long-term thinking e.g. how quickly an idea goes out of date | outdated → electoral college + state-based voting new ideas → entrenchment prevents incorporation e.g. Equal Rights failure 1982 undemocratic → against majoritarian dem. (13/50 states) SCOTUS imperial judiciary |
Roberts Court Case Study
- CU v FEC 2010 overturned Bipartisan Campaign Reform Act, bypassing P + Congress; above elected institutions
Principles
checks + balances
Congress
- override P veto
- refuse P + J appts
- impeach P + J
Exec
- veto bills
- recommend leg
- special session Congress
- appt J
- grant reprieves and pardons J
Judiciary
- judicial review
- P unconstitutionality
- life tenure
federalism
- vague; central gov have extended powers
sep. of powers
- Obama Sen → P 2009
- Jeff Sessions gave up Sen for A-G 2017
bipartisanship
- Madison’s Federalist 51: “ambition must be made to counteract ambition” → negative view of human nature designed to ensure 3 branches counteract one another
- major const. challenge → does it fit the polarisation of today?
- weak government → fault of the parties or the constitution?
- John Adams: “a division of the republic into two great parties… is to be dreaded as the greatest political evil under our Constitution”
limited gov
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- a fear of big gov social programmes
- suspicion of “the Washington establishment”
Characteristics of Federalism
Nature of federalism
- state powers are protected by constitution
- state powers are equal → applies to one applies to all
- equal power; different application
Relationship between fed + regional gov
- fed = trad. limited to foreign and security role
- state affects individual lives + domestic and econ policy more
- fed. inc. role since 1929 New Deal FDR → erosion of state power
- interdependence on many issues; have to work tog usually through resource provision + enactment
- fed. can apply pressure for states to conform w/ criteria for money:
- Race to the Top 2009 (20 educational grants for $4.3 bn)
- federal mandates
- states can contradict fed ideology
- NC trans restrictions led to fed. gov. attempting to withdraw educational funding
Fed power
- mandates
- federal income + inc. role since 1929
- control money and resources for states → Race to the Top + NC + Cali weed interstate CC
State power
- electoral reform law + can challenge federal mandates/decision e.g. Shelby
- state rights protected in constitution
- greater impact individually
Interstate Commerce Clause Case Study
- Cali legalisation of weed disputed → fed. gov thought it was their jurisdiction
- Gonzales v Raich 2005: SCOTUS ruled broadly in favour of fed gov → interstate commerce clause
- although Cali has jurisdiction of trade and sales within, across states is fed.
- OTOH: intrastate commerce has been upheld e.g. US v Lopez decided that Congress didn’t have the jurisdiction under Commerce Clause to pass the School-Free Gun Zones Act 1990
Debates
To what extent can the Constitution be seen as a democratic document?
how well does it fulfil its functions for the people? does this outweigh?
elections (sep. of powers + federalism, bipartisanship, representation)
checks + balances (limited gov)
civil liberties (individual + state rights, limited gov, SCOTUS)
establishes individual rights through BoR (1st 5th 8th), separation of powers + checks + balances
principles of us gov as outlined in constitution: federalism, limited gov, bipartisanship, checks + balances, sep of powers. All ensure gov is constrained + power vested in people
17th Am est. senate elected
14th, 15th, 19th
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Electoral college over popular vote places concept of elite over the people
inc. federal powers has seen inc. constrained state powers → less local decision making
SCOTUS power: unelected + making de facto amendments, rolling back individual rights for state rights e.g. Shelby
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Liberal v conservative view: libs say constitution outdated + upholding principles of gov protects the elite over the poor e.g. failure of Sander to get saving America am. passed
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- pluralist democracy: balance of many differing views
- majoritarian: over 50%, criticised for being too simplistic
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Strengths + weaknesses of Constitution
- effective guide to political practice
- principles still implemented largely today
- inc. polarisation + changing roles don’t reflect contemporary practice → amendments for example
- flexible
- strong gov
- how do you determine strength?
- democracy v tyranny
- civil liberties
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Significant Cases, Dates + Evidence
Essay Questions + Factors
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Brown Notes
- overlapping topic
- growth of federalism
- one reason it has grown in power, is due to vagueness of constitution → can fill in the gaps
- if you have a P question, might reference nature of constitution to explain inc./changing power
- characteristics of federalism: dual + cooperative models need to be mentioned
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Debates around democracy:
effectiveness
representation
democratic mandate
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Federalism v state
Texas v US, DAPA case. where SCOTUS has fought for state rights
most rights issues dealt with at a state level first
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electoral college, house put emphasis on bigger states → Florida has much more power than Maine
senate states have equal power
fed gov fiscal power e.g. natural disaster like Katrina
SCOTUS favouring fed gov examples e.g. Sebelius v NFIB
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vagueness is both a positive and a negative → flexible in some areas, rigid in others