3.1 US Constitution

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:

EnumeratedImplied
taxes; borrowing; commerce; currency; war etc.elastic clause; interstate commerce clause

President

head; nominations; proposals; veto; pardonscommander in chief

Courts

rulings on casesjudicial review

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

AdvantagesDisadvantages
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 dateoutdated → 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
    • not at all
  • 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