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:

President

Courts

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

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

• 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

• 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

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

• pluralist democracy: balance of many differing views

• majoritarian: over 50%, criticised for being too simplistic

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

  • not at all

• strong gov

  • how do you determine strength?

• democracy v tyranny

• civil liberties

Significant Cases, Dates + Evidence

Essay Questions + Factors

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

Debates around democracy:

effectiveness

representation

democratic mandate

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

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

vagueness is both a positive and a negative → flexible in some areas, rigid in others