Constitution

Question 1

The US constitution is:

Answer 1

US Constitution:
- The document that contains the key rules and framework for the USA’s government.
- Although drawn up in 1787, it has subsequently been amended 27 times, so the Constitution today is longer than the original version.

The US Constitution is:
✚ the supreme authority in all aspects of US government: it has constitutional sovereignty**

**Constitutional sovereignty Ultimate power (sovereignty) lies in the Constitution, not with the legislature as is the case in the UK.

✚ codified + entrenched, therefore hard to amend formally
✚ based around the separation of powers and checks and balances
✚ federal, with power shared between federal government and individual states, but federal law always has ultimate authority over any state laws (supremacy clause in the Constitution).

It established a republican form of government, i.e. a president, not a monarch, as head of state

Question 2

Who was the US constitution influenced by ?

Answer 2

The US Constitution was influenced by the ideas of the French philosopher Montesquieu (1689–1755). It was drawn up in 1787 in Philadelphia and ratified in 1788, replacing the much weaker Articles of Confederation.

Articles of Confederation The original constitution of the USA drawn up in 1777 and ratified in 1781. It had a weak central government and soon proved unsuited to the fledgling nation.

Question 3

What was the key features of the constitution and how did it reflected the intentions of the founding fathers ?

Answer 3

• Representative, Not Democratic:
- Key Point: The Constitution was designed for representative government rather than direct democracy.
- Supporting Facts: The notion of representative government is borne out further by the indirect election of the president, who was (and still is) selected via an Electoral College and not by a direct popular vote. The Senate, too, was initially chosen indirectly by state legislatures, although this was altered to direct election in 1913 by the Seventeenth Amendment.

• Fear of Mass Democracy:
- Key Point: The framers were cautious of pure, unfiltered popular rule.
- Supporting Facts: Hamilton argued that a continually changing democratic assembly wouldn’t reliably pursue the common good; instead, a permanent constitutional framework was needed.
- There was a suspicion of democracy which was associated with mob rule. Nowhere in the original Constitution was the right even of ‘one free (White) man, one vote’ laid out. Nor were the president or Senate to be elected directly

• Lack of Initial Individual Rights:
- Key Point: The document initially focused on government structure, not personal freedoms.
- Supporting Facts: Individual rights were not present until the Bill of Rights was added in 1791; the Constitution itself emphasized institutional design over personal liberties.

• Deliberate Limitation and Separation of Power:
- Key Point: Power was intentionally divided to prevent any single entity from dominating.
- Supporting Facts: There’s a clear separation between the branches, with power spread between the states and the federal government, as well as among Congress, the President, and the Supreme Court.
- No one branch of government would become too powerful. The desire was to avoid an over-powerful ‘tyranny’, as many Americans perceived the British monarchy to be in the late eighteenth century.

• Codified and Sovereign Document:
- Key Point: The Constitution is a single, written document that stands as the supreme law of the land.
- Supporting Facts: Unlike the unwritten British constitution, Article VI asserts that no law or executive decision can override it, ensuring its ultimate authority.

• Compromises and Vague Powers:
- Key Point: The Constitution features both clearly defined and vaguely stated powers. The different branches would also co-operate and make compromises with each other.
- Supporting Facts: Powers that are only outlined vaguely are termed implied powers. For example, Congress was given the power to ‘provide for the common defence and general welfare of the United States’. What does this mean in practice? Can that be used, for example, to justify the military draft (conscription) or a national healthcare programme? Yet in places it is remarkably specific, such as setting the minimum age for the president (35), senators (30) and members of the House of Representatives (also known as congress(wo)men) (25). It also sets out certain key powers such as Congress’s power to ‘coin money’ and the president acting as commander-in-chief. These are enumerated (or delegated) powers.

Implied powers:
Powers of federal government implied by, or read into, its roles and responsibilities as laid out in the US Constitution.
Enumerated (delegated):
- powers Powers explicitly spelt out in the US Constitution.

• Difficult to Amend:
- Key Point: It was intentionally made hard to change to preserve stability over time.
- Supporting Facts: The formal amendment process requires high thresholds, ensuring that only substantial shifts in consensus can alter the document.
- It would be permanent and longlasting, hence it was made deliberately difficult to amend/formally change.

• Finally, the Constitution was to be sovereign, the ultimate source of authority.

Question 4

What are the main principles of the US constitution ?

Answer 4

✚ It was designed to avoid tyranny, especially by the leader, and so power is both separated and overlapping between the different branches of government: executive (presidency), legislature (Congress) and judiciary (Supreme Court).

✚ Each branch also checks and balances the other. For example, the president may veto an act of Congress, but Congress can impeach (remove) the president and override the veto. There are also checks and balances within Congress. For example, all legislation needs to pass through both chambers before going to the president for signing into law.

✚ The main original document sets out the respective powers of each branch of government and also aspects of the political process, such as indirect election of the president and representation rules for Congress.

✚ Most aspects dealing with the protection of individual rights and freedoms are found in the amendments starting with the Bill of Rights.

Question 5

What does the US Constitution essentially a compromise between ?

Answer 5

✚ those who wanted a stronger central government (Federalists such as Alexander Hamilton and John Adams) and those who wanted most power to rest with the states, e.g. Thomas Jefferson
** Federalists Those Founding Fathers who wanted a stronger central government. Arguably the first example of party and faction in the United States.

✚ The Connecticut Compromise dealt with the clash between large states such as Virginia and small states such as Rhode Island, both of which feared being dominated or held to political ransom by the other. Hence, small states had equal representation in the Senate (two senators per state irrespective of population size), while the number of seats in the House of Representatives is determined by population.

✚ slave and non-slave states – slave states were allowed to count enslaved
people as three-fifths of a free person for the purposes of calculating the size of a state delegation in the House of Representatives.

Question 6

What is the significance of a vague constitution:

Answer 6

The Constitution’s vagueness and silence on key issues has been both a major strength and a serious weakness. Its broad and open-ended language has allowed it to evolve over time.

Strengths:
Terms like ‘general welfare’ and the ‘necessary and proper’ clause (or elastic clause) have changed meaning since the 18th century, giving Congress flexibility to pass laws that reflect new values.
- For example, Congress once passed the racially baised Immigration Act of 1924, which banned the entry of all Asian people to the US. But later passed the Voting Rights Act of 1965, banning racial discrimination in voting. These shifts show how the Constitution can adapt to social change without needing constant amendments.

Weaknesses:
However, the Constitution’s silence has also had damaging consequences.
- It said nothing about slavery when first written, avoiding the issue entirely. This omission helped fuel the sectional divide that led to the Civil War. Slavery wasn’t formally abolished until the Thirteenth Amendment in 1865.
- The Constitution also made no commitment to democracy—there was no mention of universal suffrage or equal rights. Women only gained the right to vote in 1920 through the Nineteenth Amendment, and other groups had to fight long battles for inclusion.
This shows that the original Constitution was not the democratic ideal some claim—it took decades of struggle to get there.

In short, the Constitution’s vagueness has allowed it to grow with the country, but its silence on key issues like slavery and democratic rights has also caused conflict, delay, and exclusion.

Question 7

Effects of vagueness / ambiguity in the constitution:

Answer 7

The Constitution’s ambiguous wording has created lasting uncertainty in key areas, particularly gun rights and war powers, leading to confusion, differing interpretations, and ongoing legal and political conflict.

Gun Laws:
1. The Second Amendment promises “the right to bear arms,” but it begins with “A well-regulated Militia, being necessary to the security of a free state.”
2. This ambiguous phrasing has sparked debate: Does the amendment protect individual gun ownership for everyone, or only for those in military service, such as the National Guard?
3. The lack of clarity around “arms” further deepens the issue—does it refer to 18th-century muskets, or does it extend to modern semi-automatic weapons?
4. The ambiguity has had real-world consequences, as legal battles over gun rights have divided the nation, with some arguing for broader individual rights and others stressing a more limited interpretation tied to the militia.
5. In light of these uncertainties, the U.S. Supreme Court has been forced to intervene multiple times, shaping modern gun laws and creating shifting standards that continue to spark controversy.
- Former Justice John Paul Stevens even suggested rephrasing the amendment to clarify that it applies only to people “serving in the militia,” showing just how much the ambiguity has prompted calls for clarification.

War:
Similarly, ambiguity surrounds war powers.
1. While the Constitution grants Congress the exclusive power to declare war, it names the president as commander-in-chief of the armed forces. The Founding Fathers likely envisioned a system where Congress would lead on war decisions, but where the president could act swiftly in emergencies.
2. In practice, however, this dual power structure has led to confusion about the true balance of authority. Presidents, especially in modern times, have often initiated military action first—whether through airstrikes, covert operations, or military interventions—and then sought congressional approval afterward, sometimes in secret.
3. For example, during the Vietnam War, the U.S. secretly bombed Laos and Cambodia without formal declarations of war or congressional approval. This executive overreach undermines the intended balance of power, with long-lasting effects on the separation of powers and accountability.
4. The ambiguity has often allowed presidents to bypass Congress, leading to military actions that may not have been fully scrutinized or authorized.
5. As a result, the U.S. has seen controversial military operations and a growing trend of presidential war powers that continue to evade clear constitutional boundaries.

In both cases, these ambiguities have fueled major constitutional debates, with significant political and legal consequences. The lack of clarity has resulted in divided opinions, lawsuits, and political gridlock as the country struggles to interpret the Constitution’s meaning in a modern context. When the text is unclear, it is left to the Supreme Court to step in, often interpreting these issues based on contemporary values, which can lead to inconsistent rulings. The ongoing uncertainty and conflict surrounding the Constitution’s ambiguities continue to shape U.S. law and policy today, showing how vague language can create instability and division across different sectors of society.

Question 8

Explain Judicial review as a means to interpret vagueness in the constitution:

Answer 8

Judicial review is probably the Supreme Court’s most important power, as it effectively grants the Court the power of interpreting the Constitution and declaring laws or executive actions as unconstitutional and therefore illegal.

1. The concept of judicial review is a central element of the Supreme Court’s power, allowing it to determine whether laws or executive actions are constitutional.
   - Although judicial review isn’t explicitly mentioned in the Constitution, it became established through the 1803 Marbury v. Madison case.
   - This power has since become the Court’s most significant role, as it provides the final interpretation of the Constitution, effectively making the Court the ultimate authority on what is and isn’t legal in the U.S.
2. The need for judicial review stems from the Constitution’s inherent vagueness and ambiguity. As Charles Evans Hughes said in 1907, “We are under a Constitution, but the Constitution is what the judges say it is.”
   - This highlights the idea that the Constitution often requires judicial interpretation to resolve uncertainty.
   - In practice, many contentious issues in the U.S. end up being decided by the Supreme Court, rather than through legislation or public referenda, as is common in other democracies. This includes severely debated topics like abortion and gay marriage.
3. While judicial review gives the Court power, it also leads to politicization. The Court has often revisited landmark decisions, revising its own opinions based on changing societal views.
   - For example, in the 1896 case Plessy v. Ferguson, the Court upheld racial segregation, but by 1954, in Brown v. Board of Education, it reversed this decision. This ongoing revision shows that Supreme Court rulings are not always final and can lead to further legal battles.
   - The Court may not always make the final word, but it often reshapes the Constitution’s interpretation.
4. The power of judicial review has also led to significant struggles over Supreme Court appointments.
   - Nominees often face intense scrutiny and opposition in the Senate, with high-profile rejections, like that of Robert Bork in 1987, illustrating how much political power is tied to the Court.
   - The conflict between Congress and the president over judicial appointments is a crucial part of the system of checks and balances.

Question 9

How does the constitution cause gridlock ?

Answer 9

The Constitution was designed to promote cooperation and compromise between the branches of government, such as between the president and Congress, and within Congress itself. For instance, both chambers of Congress must approve all laws, encouraging collaboration. The Senate was meant to “cool” the passions of the more populist House of Representatives, serving as a stabilizing force. This idea, expressed by George Washington as the Senate being a “senatorial saucer” to “cool” the House’s legislation, was intended to prevent hasty decision-making.

However, in practice, the Constitution has often led to competition and deadlock between the branches, rather than cooperation. A prime example is the budget process, where the president proposes the budget, but Congress must approve it. In recent years, this has led to standoffs and gridlock, especially when there are deep partisan divides. The 2018-2019 government shutdown, which lasted 35 days, highlighted this issue, exacerbated by disagreements over funding for President Donald Trump’s border wall. The presidential veto or threats of it, alongside Congress’s refusal to pass requested legislation, such as on immigration reform, further contributes to deadlock. Instead of uniting the country, the system often leads to division and paralysis in government, with both sides unable to find common ground.

Question 10

What does the constitution say about the organisation of elections in the US ?

Answer 10

The Constitution places the organization of elections primarily in the hands of the 50 individual states. While it sets broad guidelines, such as the need for a republican form of government (Article IV, Section 4) and the right to vote regardless of race, sex, or age (through amendments like the 15th, 19th, and 26th Amendments), much of the details of how elections are run are left to the states. This decentralization of power is a reflection of the Constitution’s design, where states retain significant authority in administering elections, even as national laws like the Voting Rights Act of 1965 and the Help America Vote Act of 2002 provide a federal framework to protect voting rights.

This division means there are significant variations in how elections are conducted across the country. For example, states have different rules for things like postal ballots, early voting, and voting rights for ex-felons. There is no national voter registry, and the methods of voting vary widely—some states use electronic voting machines, while others rely on traditional paper ballots. Certain states, like Utah, automatically mail ballots to all voters, while others, like New York, used lever machines until 2009. The 2020 Georgia runoff elections are another example of how states control the timing of elections, with Georgia requiring a January 2021 runoff after no candidate won over 50% in November.

However, this state-based election system has led to controversy, particularly with the toughening of voter ID laws in some states, mostly Republican-controlled, which claim to combat voter fraud. States like Kansas and Mississippi have strict photo ID requirements, raising concerns about voter suppression, especially among minority groups and low-income citizens. Despite claims from President Donald Trump and many Republican supporters that the 2020 election was stolen, there is little evidence of widespread voter fraud in the U.S.

Ultimately, the Constitution gives states significant authority over elections, leading to a diverse range of election practices, and leaving the potential for disparities and disputes about voting rights and election integrity.

Question 11

How significant is the principle of Separation of Powers in the US?

Answer 11

The Founding Fathers were argued that the best way to avoid tyranny and absolutism was to divide government into three distinct branches:
- Legislature (Congress)
- Executive (Presidency)
- Judiciary (Supreme Court)

Very significant:

1. Each branch is clearly checked and limited by the other two.
2. No person can serve simultaneously in both Congress and the legislature. For example, Hillary Clinton had to resign as senator for New York when appointed secretary of state, and Deb Haaland resigned as a New Mexico congresswoman when Biden nominated her as secretary of the interior in 2020.
3. It helps to prevent any one branch from having too much power and avoids the notion of an ‘elective dictatorship’, the type sometimes associated with the UK prime minister. For a president to get policy through, they need to work with Congress, and ensure it is compatible with the Constitution.
4. It helps to preserve the notion of an independent and nonpolitical judiciary, vital to the defence of civil liberties and entrenched rights.

Less significant:

1. The term “separation of powers” makes it sound like each branch of government (President, Congress, and the courts) works completely on its own. But in real life, they share a lot of powers.

Example 1: Making laws
- Congress (the legislature) writes and votes on laws.
- The President (executive branch) has to approve them — or can veto them.
So, both the President and Congress play a role in the law-making process. It’s not a clean separation.

Example 2: The Vice President’s tie-breaking vote
- The Vice President is technically part of the executive branch.
- But they also act as the President of the Senate, which is part of the legislature.
- If there’s a 50-50 tie in the Senate, the VP can cast the deciding vote.

Real example: Mike Pence (Trump’s VP) broke a tie in 2017 to confirm Betsy DeVos as Education Secretary and did the same in 2018 for a court appointment. Kamala Harris (Biden’s VP) is expected to do the same since the Senate was split 50/50 after the 2020 election.

2. Control and deployment of the armed forces: the president is commanderin-chief but Congress must authorise any declaration of war.
3. In theory, the courts (like the Supreme Court) are supposed to be neutral and not political. But in the U.S., politics plays a big role in how judges get their jobs.
   - Presidents choose who they want to be judges (especially on the Supreme Court).
   - The Senate (which is political) has to approve those choices.
   - So, if a President’s party controls the Senate, they can more easily get judges who agree with their views.

This means:
- The courts can lean conservative or liberal, depending on which party is in charge.
- That gives the President more influence — especially if the courts are supportive of their policies.

Extra example: If the Supreme Court supports the President and their party also controls Congress, then the President has a lot of power — much more than if all three branches were truly independent.

4. Pardons: The President can also pardon people (basically, forgive them for crimes), which steps into what the courts normally do. This is another example of how the powers aren’t really separated in practice — they overlap. Therefore the president’s power of pardon is a judicial rather than executive power.

Question 12

Examples of separated powers:

Answer 12

President
✚ Is commander-in-chief of the armed forces.
✚ Oversees foreign policy and relations with foreign powers.
✚ Is in charge of the federal bureaucracy and chooses secretaries of state (ministers).
✚ Can issue pardons to individuals.
✚ Nominates federal judges including to the Supreme Court when vacancies occur.
✚ Can suggest laws to Congress and can also veto them.
✚ Cannot sit in Congress, nor can members of their cabinet.

Congress
✚ Passes laws and raises taxes.
✚ Must confirm most presidential appointments (Senate only).
✚ Ratifies foreign treaties and formal declarations of war.
✚ Can impeach** the president and judges.
✚ Cannot serve in government, so must resign if appointed to the executive by the president. Hence Deb Haaland had to resign as a congresswoman for New Mexico when appointed by Joe Biden as Interior Secretary in 2021.
** Impeachment:
The power of Congress to remove either the president or a member of the judiciary. It requires a simple majority in the House to formally begin the process; the actual trial is held in the Senate, with a two-thirds majority required for conviction. Only three presidents have been tried for impeachment. Donald Trump was tried twice and acquitted (not guilty) by the Senate both times.
1. House of Representatives votes — if more than half agree (simple majority), the person is impeached (officially charged).
2. Senate holds a trial — if two-thirds of the Senators vote to convict, the person is removed from office.

Supreme Court
✚ Interprets the Constitution.
✚ Ensures the actions of Congress and the president are in accordance with the Constitution.
✚ Can ‘strike down’ laws/actions it sees as unconstitutional.

Exam tip
The separation of powers in the USA, is actually a system of shared powers and separate personnel. For example, law making involves the co-operation of both president and Congress.

Question 13

Explain the presidential checks on congress:

Answer 13

Presidents can limit the power of Congress in several ways:

1. Presidents veto acts or resolutions passed by Congress.
   - President Barack Obama vetoed the Keystone XL pipeline and issued 12 regular vetoes during his two terms in office.
   - President Trump vetoed a resolution revoking his declaration of a national emergency at the US–Mexico border.
2. Presidents often threaten the veto to dissuade Congress from passing an unwelcome measure.
   - Obama made four veto threats in his 2015 State of the Union Address, on the topics of stiffer Iran sanctions, diluting or overturning the Affordable Care Act, loosening Wall Street oversight and tightening up immigration controls. ‘If a bill comes to my desk that tries to do any of these things, I will veto it’, he said.
3. Presidents can issue executive orders to bypass the need for formal legislation.
   - In 2017, Trump introduced a travel ban on visitors from several countries, mostly Muslim-majority countries.
4. Presidents can use their commander-in-chief role to deploy US troops overseas, thereby avoiding congressional approval of declaring war.
   - In 2001 and 2003 respectively, President George W. Bush ordered the invasions of Afghanistan and Iraq.

Question 14

Explain the presidential checks on the courts:

Answer 14

The president also checks the judicial branch in several ways:

1. The president nominates all federal justices including, when there is a vacancy, to the Supreme Court.
   - Obama appointed Sonia Sotomayor and Elena Kagan, and Trump appointed Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett to the Supreme Court.
2. The president can issue pardons and commutations to those convicted of federal crimes.
   - President Gerald Ford pardoned his immediate predecessor, Richard Nixon, while Trump pardoned the media mogul Conrad Black in 2019, who had previously written a favourable biography about him.
   - Obama issued a record 330 commutations on his final day in office. Trump proved a little more restrained on his final day as president in 2021, but nonetheless issued 73 pardons and 70 commutations, including one to his former chief strategist Steve Bannon, who was facing serious fraud charges.
3. The power of pardon was originally included as a presidential power to enable the president to pardon rebels in the early days of the nation, in the interests of national reconciliation.

Question 15

Explain Congressional checks on the president:

Answer 15

Congress checks the president in the following ways:
• A presidential veto can be overturned by a supermajority in both houses. (Supermajority: approval by two-thirds of all members of both the House and the Senate. Constitutional amendments and convicting an impeached president in the Senate also require the same level of support from lawmakers)
- In 2016, Congress overturned Obama’s veto of the Justice Against Sponsors of Terrorism Act (JASTA), the only veto he had overturned.
- George W. Bush had 4 out of his 12 regular vetoes overridden.
- During his term in office, Trump had just one of his ten vetoes overridden, on a defense spending bill in January 2021 during the final days of his presidency.

2. The Senate must confirm by a simple majority (just over half) presidential appointments to the administration including the judiciary.
   - In 2013 the Senate blocked Obama’s appointment of Robert Wilkins to the District of Columbia (DC) court of appeals, the second-most important court in the States.
   - The last Cabinet nominee to be denied confirmation was John Tower as defense secretary in 1989.
   - The last Supreme Court nominee to be formally rejected was Robert Bork in 1987.
3. As with the presidential veto, the threat of a Senate rejection is often as powerful and is more frequent.
   - One example was Biden’s controversial 2020 pick of Neera Tanden as Director of the Office of Management and Budget. When it was clear she would not secure enough Senate votes for confirmation, her nomination was withdrawn in March 2021.
4. Congress has the ‘power of the purse’ and can turn down presidential requests for funding.
   - Congress, on several occasions, frustrated Trump’s attempt to get full funding for his Mexican border wall.
5. Congress can simply decline to pass legislation desired by the president.
   - In the aftermath of several mass shootings, most notable at Sandy Hook school in 2012, Obama requested Congress pass several gun-control measures, but nothing was passed despite proposals being drawn up.
   - Trump encountered similar frustration when he tried to get his own version of healthcare reforms passed.
6. The ‘nuclear option’ of impeachment can remove a president from office mid-term.
   - In 2019, the House voted to proceed with an impeachment trial against Trump. However, the Republican Senate did not convict him following the trial. Uniquely, in the final days of his presidency the House voted to impeach him a second time on 13 January 2021.
7. Congress has the power to block treaties negotiated by the president.
   - A two-thirds vote in the Senate is required to ratify (formally approve) treaties.
   - In 2012, the Senate failed to ratify the Convention on the Rights of Persons with Disabilities. Although it passed by 61-38, it needed five more votes to get ratified.
8. Congress can launch investigations into presidential actions where wrongdoing or serious concerns are raised.
   - In 2019, the House Oversight and Reform Committee began investigating a possible conflict of interest after it was found that the US Air Force had started spending more money on refuelling at a struggling airport in Scotland, which was located near Trump’s golf resort. The airport was considered important to keeping the Trump Turnberry resort financially successful.

Question 16

Explain Congressional checks on the court:

Answer 16

Congress can check the courts in several important ways, too.

1. Congress can impeach federal justices and remove them from office.
   - In 2010, a Louisiana federal judge, Thomas Porteous, was successfully impeached and removed from office for corruption in a near unanimous vote.
2. Constitutional amendments can be initiated to overturn Supreme Court verdicts.
   - In 1896, the court found a national income tax to be unconstitutional. This was reversed by the ratification of the Thirteenth Amendment in 1913. Subsequently, there have been attempts in Congress to pass amendments banning flag burning and prayer in public (state) schools, although these have been unsuccessful.

Question 17

Explain Judicial checks on the president:

Answer 17

The Supreme Court in particular can limit presidential powers:

1. The courts can rule presidential actions unconstitutional and therefore illegal.
   - In Hamdan v Rumsfeld (2006), the Court ruled against special military commissions set up by George W. Bush to try suspected members of the terrorist group al Qaeda.
   - In July 2020, in two cases involving the tax and financial records of President Trump, Trump v Mazars and Trump v Vance, the court ruled that presidents do not enjoy absolute immunity from state criminal subpoenas. In other words, the president is not above the law even when in office.

Question 18

Explain Judicial checks on congress:

Answer 18

The Supreme Court can also limit congressional powers:

1. The courts can declare acts of Congress to be unconstitutional, and therefore effectively require them to be repealed.
   - In 2013, the Defense of Marriage Act was ruled unconstitutional in United States v Windsor, which marked a major step forward for the legalisation of same-sex marriage across the USA.

Question 19

Explain the significance of checks and balances: working around constraints.

Answer 19

The system of checks and balances often forces political players, especially Congress and the President, to find alternative ways around the limits imposed on them.

Executive Agreements:
- Presidents often prefer executive agreements [deals made between the president and another country that don’t require Senate approval] over full treaties.
• Example: In 2015, Obama’s nuclear deal with Iran was an executive agreement, bypassing the need for Senate ratification.

National Emergencies:
- Presidents can declare a national emergency [a special situation where the president can act without Congress’s full approval], which allows them to bypass Congressional control over funding or other actions.
• Example: Trump declared a national emergency in February 2019 to secure additional funding for the USA–Mexico border wall, bypassing Congress’s refusal to allocate the funds.

Executive Orders
- Presidents often issue executive orders [directives that do not need Congressional approval] to make policy changes. However, these orders can be challenged in court.
• Example: Obama’s executive order on DACA (Deferred Action for Childhood Arrivals) in 2012 allowed undocumented immigrants who arrived as children to stay in the U.S. without fear of deportation, even though Congress had failed to pass the DREAM Act.

Question 20

Who is checked the most out of the three branches ?

Answer 20

The President is Most Heavily Checked.

The president faces the most checks out of all three branches of government. This reflects the founding father’s fears of giving too much power to one person.

• The framers feared giving too much power to the president because they saw King George III as an example of tyranny.
  • Despite these checks, the presidency has gained significant power over time, particularly as the world became more complex and the U.S. became a global power.
  • For instance, Roosevelt’s expansion of executive power during the New Deal (1930s) set the precedent for a more active president.

Question 21

What’s the significance of checks and balances during a divided government ?

Answer 21

Impact of Divided Government
The system of checks and balances can affect when a president attempts to push through new laws.
• Divided Government [when different political parties control the presidency and Congress] often makes it harder for presidents to get things passed.
• Example: Obama’s Affordable Care Act (Obamacare) in 2010 was passed when Democrats controlled both the House and Senate. However, when Republicans took control of the House in 2011, further changes to the law became much harder to pass.

Significance:
Divided government affects the system of checks and balances because it creates a situation where the president is often unable to push through their legislative agenda.
The control of different political parties in the presidency and Congress leads to gridlock, as each branch can block the other’s initiatives. This limits the president’s ability to implement policy changes and forces them to negotiate more, often weakening the power of the executive in the face of congressional opposition,

Question 22

How is the balance of power effected during mid-term elections ?

Answer 22

Midterm elections [elections that occur halfway through a president’s 4-year term, when all of the House and one-third of the Senate are up for re-election] often shift the balance of power in Congress, making it more difficult for the president to achieve his legislative agenda.

• Presidents often lose popularity by midterm elections, leading to their party losing seats in Congress, a situation known as “midterm backlash.”

• Example: Trump’s Republican Party lost control of the House in the 2018 midterm elections, making it difficult for him to pass significant new legislation.

• Example: Obama’s Democratic Party lost control of the Senate in the 2014 midterms, hampering his ability to push through his agenda during his final two years in office.

Question 23

How has checks and balances created bitter partisanship ?

Answer 23

The system of checks and balances leads to gridlock - when little or nothing gets done because different parts of government block each other.

This system was originally designed to promote bipartisanship, but today’s political environment is marked by deep partisan conflict between the parties. Showing a marked reluctance to cooperate and compromise, for instance:

1. The Republican-controlled Senate refused to confirm Obama’s Supreme Court nominee Merrick Garland in 2016, arguing that it was too close to an election year, thus preventing Obama from filling the vacancy.
2. Even a national emergency, such as the emergence of COVID-19 in 2020, took several days of intense and often fraught negotiation to get the original $2.2 trillion stimulus package (CARES Act) passed.

While the current parties must take their fair share of the blame for how they engage in political tactics, arguably the constitution itself creates a framework that encourages such conflicts.

Question 24

Why do checks and balances between the branches not have equal significance ?

Answer 24

The most powerful checks and balances, for instance - impeachment, are rarely used and even more unlikely to be successful. No US president has been successfully impeached.

Furthermore, he presidential veto is declining in use in recent presidencies and is perhaps overrated as a political tool. Obama vetoed 12 bills in his two-term presidency compared with Ronald Reagan, who issued 78 during his two terms in office in the 1980s. Very often it is the threatened checks and balances, the threat of a veto or a denied Senate confirmation that ultimately has most impact.

For instance:
- The threat of a veto or the threat of blocking a Senate nomination often influences Congress or other political actors, even if the president does not actually use the veto.
Example: Trump threatened to veto several bills during his presidency, and his Supreme Court nominations were often under threat of being blocked by the Senate, which led to bitter partisan battles.

Question 25

Why is it so hard to formally amend the constitution ?

Answer 25

The US Constitution was deliberately made difficult to amend formally, to ensure that only amendments with broad and sustained support could succeed. There are only 27 formal amendments to the US Constitution. The last major one was in 1971, which lowered the voting age to 18. ✚ Formal amendments are difficult to pass. They require a two-thirds majority in both houses of Congress and then ratification by threequarters of states, often within a set time limit. ✚ Over the centuries, thousands of amendments have been proposed, but most have failed. Among notable failures is the Equal Rights Amendment, which would have guaranteed gender equality. Passed by Congress, it then failed to secure ratification by enough states in time (1982), falling three states short of the required number. Therefore, formal ratification is rare and difficult, informal amendment via the judgements of the Supreme Court is far more common, and arguably enables the Constitution to remain relevant and up to date. The question of whether formal amendment to the Constitution should be made easier is a significant one.

Question 26

What are the key amendments from the Bill of Rights, and some key amendments AFTER the Bill of Rights:

Answer 26

Key amendments from the Bill of Rights include: • First Amendment: introduced freedom of religion, speech, the press and assembly • Second Amendment: introduced the right to bear arms • Eighth Amendment: banned the use of 'cruel and unusual' punishments Key amendments after the Bill of Rights include: • Thirteenth Amendment (1865): abolished slavery • Fourteenth Amendment (1868): gave citizenship to tormer enslaved people and included the 'equal protection' and 'due process' clauses • Seventeenth Amendment (1913): introduced direct election to the Senate • The last amendment to be passed was in 1992 and specified that any increase to congressional salaries could only take effect after the next election. This was originally proposed by James Madison for inclusion in the Bill of Rights but didn't 'make the cut'. Its subsequent 'discovery' is a fascinating tale in itself. Its ratification, when many other far more major proposed changes failed, is perhaps due to how one scholar, Richard Bernstein, has described it as being 'credible and unthreatening. modest, reasonable, and appropriate. • Numerous amendments have been proposed and six to date, including the Equal Rights Amendment (which would embed women's rights in the Constitution), have been passed by Congress but failed to get sufficient state ratifications within the allocated timeframe.

Question 27

Is the US Constitution too hard to amend formally ?

Answer 27

Yes: 1. Very few amendments have been passed recently, this is due to the high threshold required. In the past 200 years, the constitution has only been amended 27 times. 2. The constitution is arguably outdated, for instance the Electoral college and the second amendment 3. It prevents the constitution from being updated, especially in the area of rights. While some groups are protected in the constitution, for example racial minorities. Some groups aren’t, for instance women and disabled people. And the complexity of passing amendments makes it impossible to protect their rights in the constitution. 4. There are too many informal amendments being made to the constitution via Supreme Court judgments from unelected and unaccountable individuals. 5. Although the states can initiate a formal amendment process under Article V, no national constitution convention has ever been held. No: 1. There is a high threshold for formal amendments ensuring change only happens when there’s a wide consensus and broad agreement 2. Outdated parts of the constitution can be removed, like when Prohibition was repealed. Some issues, for instance the Electoral College, can be improved rather than removed completely. Similarly, other issues like the Second Amendment can be updated in smart ways: banning certain guns or requiring background checks. 3. The rights of many groups not protected in the Constitution can be equally protected by Federal and state law. If constitutional amendments were made much easier, where would the line be drawn? While protecting the rights of women and children may receive near universal support, those of transsexuals or vegetarians might be more complicated and controversial. 4. Often, the supreme court takes note of public opinion when reaching its conclusions and informally amending the constitution, for example with LGBTQ+ rights. 5. Within the current amended procedure, there’s a second option that allows for a federal dimension to be present since its state initiated: the national constitutional convention. In this method, two-thirds of the state legislatures (34 out of 50) can call for a special national convention to propose amendments. However it’s never happened before.

Question 28

How does the divergence of views regarding the constitution link to judicial philosophies?

Answer 28

There is considerable debate whether or not the framers intentions can be discerned in this way. Conservatives argue this is an impossibility and such decision’s should be left to legislatures, whether in individual states or Washington D.C. Others, such as Liberals view the constitution as a ‘living document’ capable of being interpreted for a modern age. The divergences of views regarding to constitution and its applicability to modern day links to Judicial philosophies. - strict constructionists favour a more narrow and literal reading of the text, and argue against finding new rights therein. - by constant, loose constructions argue that the constitution holds a more dynamic meaning, evolving and adapting to changing circumstances.

Question 29

What is federalism and how is it addressed in the US Constitution?

Answer 29

1. Federalism: A state of government in which bodies such as the states or provinces share power with the national government. Aside from the USA, Germany and Switzerland are other examples of Federal nations. In contrast, the uk is traditionally defined as a unitary state, however recently it’s shifted in becoming quasi-federal. 2. In the US, federalism wasn’t only designed to limit the power of government over individuals but to also restrict federal government interference in state affairs. The tenth amendment in the constitution, addresses this notion: powers not specifically delegated to the federal government, nor prohibited to the states, are reserved to the states respectively or to the people. This creates constitutional ambiguity—does ‘the people’ mean direct state control or the will of voters through Congress/president? The Constitution doesn’t explicitly mention federalism, but it asserts that state law must conform to the Constitution and federal law, which holds primacy.

Question 30

What disagreements existed over federalism at the Constitutional Convention?

Answer 30

At the Constitutional Convention, there was fierce disagreement over federalism. - Federalists like Benjamin Franklin and Alexander Hamilton supported a stronger central government. - While anti-federalists such as Thomas Jefferson and Patrick Henry argued for greater state autonomy. This early division over the distribution of power between central government and the states has shaped ongoing debate, especially since the Constitution did not explicitly define federalism, leaving room for differing interpretations.

Question 31

What are the key Federalism landmarks? What do they conclude in terms of the trend between power within central government or within the states ?

Answer 31

1. The Civil War (1861–65) was fought over slavery, but also involved the issue of states’ rights, above all the ultimate power — that of breaking away from the Union. The North won the war, and so this ultimate expression of state power was permanently suppressed. 2. The post-Civil War era in the South saw the emergence of legalised racial segregation. This was viewed as permissible under the notion of states rights. It was successfully challenged and ended by the federal government in the 1950s and 1960s. Segregation has also given the notion of states’ rights a somewhat racist and negative connotation. 3. The Sixteenth Amendment (1913) allowed for a national income tax. This is the only constitutional amendment to have expressly extended the power and authority of central government. 4. The New Deal of the 1930s and the Second World War (1939–45) necessarily required huge increases in the power and influence of national government. For example, during the Depression, a nationwide social security programme was established. During the war, industry had to be much more coordinated on a national scale. 5. The 1950s and 1960s saw increasing measures by national government to tackle issues such as racial inequality and poverty. Not only were laws passed requiring states to end practices that prevented African-Americans from voting, but also some national healthcare schemes such as Medicare were introduced. 6. The 1970s and 1980s saw something of a backlash against the seemingly unending growth of ‘big government’. Several Republican presidents, including Nixon and Reagan, talked of a new federalism, and of returning some powers to individual states. Block grants, or federal money given to the states for use at their discretion within broad policy areas, were introduced. However, the federal budget deficit grew in the 1980s and many federal programmes were cut back. This led to unfunded mandates, during which states were still required to undertake certain roles but without sufficient federal funds. Although new federalism was most associated with Republicans, it was the Democrat president Bill Clinton who, in 1996, uttered the famous words, ‘The era of big government is over.’ 7. Since 2000, despite an alternation of Republican and Democrat presidents, most commentators would agree that the era of big government was back with a vengeance. Under George W. Bush, a major reform of education was undertaken on a national scale with the passing in 2002 of the No Child Left Behind Act. In addition, there was a substantial expansion of Medicare to include new prescription drug benefits for seniors. In the aftermath of the 9/11 attacks, the Patriot Act was passed, which set up a new executive department, the Department of Homeland Security. 8. Under Obama, government spending continued to rise with new healthcare reforms including the Affordable Care Act and several measures to help stimulate the economy following the financial crisis of 2007–08, such as the American Jobs Act 2011, which provided $140 billion for repairing roads and modernising schools. 9. This trend continued under Trump. Even before the coronavirus crisis hit, a major stimulus package, the Tax Cuts and Jobs Act 2017, was passed. In March 2020, Trump signed the largest-ever US financial stimulus package, worth $2 trillion. He had previously invoked the Defense Production Act (DPA) 1950, which gives the president the power to force private industries to create items required for national defence. This was undertaken primarily to escalate the production of medical ventilators by firms such as General Motors as a response to COVID-19. This overview strongly suggests that federalism has been seriously weakened from the 1930s onwards. As the world has become more global and complex, as people’s expectations of what governments should deliver to their citizens have grown, and as a result of military, economic and medical crises, federal government is doing more — and certainly spending more.

Question 32

How do the states still play an important role in US politics despite an erosion of states’ powers in recent decades ?

Answer 32

Despite an erosion of states’ powers in recent decades, and a clear shift in the balance away from individual states to central government, the 50 states still play a very important role in US politics. Key areas where they still retain important roles include the following: 1. The ability to legislate in a wide range of areas including local taxes and access to abortions. Several conservative states, such as North Dakota and Arkansas, have tightly restricted abortion laws. 2. The issue of the death penalty is primarily state-based. A heinous murder in one state, such as Texas, can leave the perpetrator on Death Row, but in an adjoining state serving a life sentence without parole. In that sense, the US federal system is literally a matter of life or death. 3. Presidential election proves how US states remain powerful. Each state elects its electoral college voter, who then goes and chooses the president. The electoral college is state based, and the number of electors per state is based on the size of its congressional delegation. 4. States run and conduct elections, deciding whether to hold caucuses or primaries as a means of selecting party candidates. Important issues such as postal ballots, voter ID laws and direct democracy are all decided at a state level. In times of a crisis, it’s often states and their governors who are at the forefront of the response for example Hurricane Katrina and Sandy, and Covid 19. However these disasters also highlight the states lack of ability to cope, inevitably requiring national involvement. For instance financial help and the involvement of federal agencies such as Federal Emergency Management Agency - FEMA

Question 33

Why can the clash between individual states and the federal government be seen as much about national party politics as it is about federalism?

Answer 33

During COVID-19: - president and governors blamed each other for the shortage of vital equipment such as ventilators and personal protective equipment (PPE). - Illinois governor J. B. Pritzker called Trump’s response to the pandemic incompetent, saying he ‘does not understand the word “federal”’, referring to the president’s instructions for states to seek out their own resources. ‘If he were right, why would we ever need a Federal Emergency Management Agency? It’s because individual states can’t possibly do what the federal government can do.’ - By way of response, Trump criticised some (Democrat) governors for the speed of their response, tweeting: ‘Some [governors] have insatiable appetites & are never satisfied (politics?), remember, we are a backup for them. The complainers should have been stocked up and ready long before this crisis hit.’ The clash between individual states and the federal government is often as much about national party politics as it is high principles of federalism.

Question 34

How did the coronavirus outbreak also reveal the differing approaches between states during crisis?

Answer 34

The coronavirus outbreak also revealed the differing approaches between states to the unfolding crisis. - Some states, including Ohio, were quick to lock down while others, including Florida, were much slower. - Some, including Arkansas, did not even issue a full lockdown order.

Question 35

How did the Covid-19 crisis also lead to something of an explicit power struggle between federal and state authorities?

Answer 35

The COVID-19 crisis also led to something of an explicit power struggle between federal and state authorities. - On 13 April 2020, when questioned about easing aspects of the lockdown, Trump openly declared, ‘When someone is the president of the United States the authority is total.’ He was referring directly to his ability to dictate events nationally over the heads of individual states and their governors. - Governor Cuomo of New York, the state worst hit by the pandemic at the time, replied, ‘The Constitution says we don’t have a king…we didn’t have a King George Washington but President George Washington.’ The debate over the distribution of power in the Constitution is, therefore, one that is ongoing. SYNOPTIC LINK One of the president’s main powers is to persuade, but that does not necessarily prevent a president from issuing imperial-like statements, such as those issued by Trump during the COVID-19 pandemic.

Question 36

How has the role of central government been less focused on how far it should interfere in the rights of individual states than on what form interference should take?

Answer 36

Ultimately, recent discussion over the role of central government has been less focused on how far it should interfere in the rights of individual states than on what form interference should take. - Democrats have no problem with federal government imposing healthcare expansion on states via Obamacare, but they bitterly resist individual states opting to restrict abortion access. - Likewise, Republicans have no issues with federal government cracking down on the sanctuary cities movement that undermines their wish to curb illegal immigration, but they have no problem with states passing ‘bathroom bills’ that restrict transgender rights. In summary, many politicians on both sides of the political divide support states’ rights — unless they go for the ‘wrong sort’ of rights.

Question 37

Is the US Constitution still fit for purpose in modern America?

Answer 37

A key debate is whether or not the US Constitution is still fit for purpose in modern America. Critics: The Constitution has real flaws, such as its rigidity and uneven approach to protecting rights and liberties as well as specific clauses such as that requiring the Electoral College. It has also been criticised for enhancing the role of unelected judges who carry out the task of interpretation. Supporters: However, defenders claim the real issue lies not in the Constitution itself but in how contemporary politics, shaped by polarisation and hyperpartisanship, prevents it from functioning properly as opposed to being fundamentally flawed. Where, then, does the truth lie? One way to approach this is to evaluate the pros and cons of the Constitution via two approaches: first, in terms of some of its specific clauses and second, in respect of its broader structure and nature.

Question 38

What are the specific clauses in the constitution that prove problematic ?

Answer 38

1. The Constitution continues to balance the interests of small and large states by equal representation in the Senate but population-based representation in the House. - This rightly reflects and respects the federal structure and diversity of modern America. However, the gap between the largest and smallest states has mushroomed since the 1780s. - In 1789, the population of the largest state (then Virginia) was 12 times larger than that of the smallest state (then Delaware). Today the largest state, California, is 68 times larger than the least populous state, Wyoming. - Small states are increasingly over-represented in the Senate, which has more by way of exclusive powers than the House. Half of senators are elected by states representing just 16% of the population. 2. The Electoral College ensures that smaller states are not overlooked when it comes to campaigning and importance in the presidential election. Again, this reflects the federal composition of the USA. - However, not only has the Electoral College failed twice in recent times (2000 and 2016) to reflect the outcome of the popular vote, but it is a product of a bygone era before the age of mass communication and transport, when ordinary voters might not have known the candidates standing. 3. The Constitution splits war powers between the executive and legislature: Congress can declare war, while the president makes war as commander-in-chief. The problem with this in the constitution, is that this division is ambiguous, leading to tensions. Since 1945, the US has not officially declared war, despite engaging in multiple conflicts. Critics argue this shows the Constitution isn’t functioning properly in foreign policy, as presidents often take military action without clear congressional consent. Therefore how can the Constitution be said to be working well if the USA has not officially been at war since 1945? 4. The Senate uses its advice and consent powers to approve or reject presidential appointments, acting as a check on unsuitable or inexperienced nominees. - Examples include Harriet Miers (2005) and Ronny Jackson (2018), who both withdrew after concerns over their qualifications or close ties to the president. - However, the process has increasingly become politicised. For instance, Brett Kavanaugh (2018), despite strong legal credentials, faced a highly controversial confirmation process due to allegations of sexual misconduct, his conservative views, and perceived partisanship. - The Senate’s role has thus evolved into a partisan battleground, described by some as a “search and destroy” process. 5. The biennial elections of the entire House and one-third of the Senate keep Congress accountable, allowing voters to make quick changes. However, this leads to constant campaigning, where lawmakers prioritise short-term popularity over long-term policy. It also increases the likelihood of divided government, where the presidency and Congress are controlled by different parties. This often results in political gridlock, making it difficult to pass legislation and govern effectively. 6. The Bill of Rights continues to entrench and protect key rights such as free speech and free expression. However, the Second Amendment right appears anachronistic or indeed positively dangerous to many today. Were the Founding Fathers really envisaging a society of mass gun ownership for self-defence against fellow Americans?

Question 39

Examining the general nature of the US constitution: Separation of powers.

Answer 39

The separation of power between the different branches of government and the federal government and individual states remains as crucial today as it did when the Constitution was first composed. - There is no reason to suppose that modern presidents are any less susceptible to power-grabs than their predecessors. - However, the Constitution has not prevented a steady accumulation of power by the White House and by federal government at the expense of the states. States’ rights have undeniably diminished over the past century as federal government and its agencies have become ever more bloated. Trump’s campaign call to ‘drain the swamp’ struck a chord with many Americans.

Question 40

Examining the general nature of the constitution: checks and balances

Answer 40

Checks and balances remain vital. They ensure no one branch can dominate the others, and in times of urgency promote collaboration and cooperation. - This can be seen with the rapid passage of the Patriot Act soon after the 9/11 attacks, and with the vast stimulus and intervention package put together during the COVID-19 crisis. However, most of the time in an age dominated by hyper-tribal politics, there is little true bipartisanship. - Checks and balances so often result in gridlock, political point-scoring and intrigue. Senate confirmation votes, particularly of key appointments, are often decided almost entirely along party lines. The 2020 confirmation vote for Supreme Court justice nominee Amy Coney Barrett saw her approved by 52-48 votes with just one Republican and no Democrat directly breaking party ranks. The vote was largely split along party lines, showing how political party loyalty often influences the process, rather than the nominee’s qualifications.

Question 41

Examining the general nature of the constitution: vagueness

Answer 41

The vagueness of many of the Constitution’s terms, such as ‘necessary and proper’ and ‘general Welfare of the United States’, allows for flexible and evolving interpretations, which ensure the Constitution stays relevant. However, the question often is whose interpretation? - Arguably too much is left in the hands of nine unelected Supreme Court justices who frequently read things in different ways. - Many key decisions on high-profile matters, including the legality of Obamacare or same-sex marriage, have been decided 5-4 — indicating that justices don’t always agree and that interpretation can be very subjective. - This suggests that interpretation can be subjective and partisan, which is hardly surprising as the justices themselves are effectively political appointees - appointed by the president.

Question 42

Examining the general nature of the constitution: the amendment process

Answer 42

The Constitution has a rigid amendment process, requiring a supermajority for changes. This makes it difficult to amend, ensuring stability. However, some argue this makes the Constitution a “well-preserved relic,” as the last significant amendment was more than 50 years ago.

Question 43

Examining the general nature of the constitution: adaptability and presidency

Answer 43

Finally, the Constitution has managed to adapt to a world and nation where a strong executive is often vital to tackle and coordinate complex problems. - A swift response, a degree of uniformity across the nation and much greater expectations by the public in terms of social benefits and public services all require a strong presidency. - The strong presidency that emerged after 1945 reflects the need for a proactive leader to address complex problems, even though this diverges from the original intentions of the framers, who envisioned a more powerful Congress and a supervisory presidency.

Question 44

Conclusion on the imperfect system of the constitution:

Answer 44

While the Constitution has endured, it has clear flaws, like the Electoral College system, where the winner of the popular vote may not win the presidency. This imperfection is highlighted by Benjamin Franklin’s comment about the fragility of the republic, suggesting that the Constitution is not perfect but has been maintained despite its shortcomings.

Question 45

Key points on the extent civil liberties and rights are protected within the constitution:

Answer 45

Key points: — 1. First, the bulk of individual rights are in the 1791 Bill of Rights, and not the original document. 2. Second, not all rights are equally well entrenched and therefore inalienable. 3. Finally, the protection of rights is, to a large extent, dependent on interpretation by the Supreme Court. The key rights explicitly enshrined in the Constitution are: 1. The First Amendment rights to free speech and expression, a free press and the right to practise one’s religion freely 2. The Second Amendment right to bear arms 3. The Fourth Amendment right against ‘unreasonable searches’ 4. The Fifth Amendment right not to incriminate oneself 5. The Sixth Amendment right to a swift, fair and public trial 6. The Seventh Amendment right to receive a jury trial in civil lawsuits 7. Amendments that have protected Americans against slavery, and racial or gender discrimination in voting Less extent: 1. Yet many groups are not specifically afforded constitutional protection, including people with disabilities, children and LGBTQ+ Americans. 2. Social rights, including the rights to education, healthcare and housing, are not mentioned in more recent human rights charters. 3. The US notion of constitutional rights is patchy, selective and often a product of its time. The rights of many groups are instead protected by congressional or state legislation. In order to analyse the effectiveness of these rights, consider the First Amendment. One of the stranger experiences of visiting many of the USA’s excellent National Parks is to see signs that designate them as a ‘First Amendment area’. Yet in many ways, these signs sum up the paradox concerning the USA and free speech, which is essentially a mixture of protection and regulation. - Free speech does not equate to the ability to say anything, anywhere, at any time. Virtually any opinion, however weird or morally debased, must be protected. - Yet views that advocate breaking the law or threaten public order can be regulated and sanctioned. There are a number of test cases that seek to discover where a line can be drawn.

Question 46

CASE STUDY First Amendment rights: Schenck v United States (1919)

Answer 46

A significant landmark case occurred in 1919 with Schenck v United States when two socialists were convicted, under the Espionage Act, of distributing leaflets urging people to disobey the draft but advising only peaceful action. - The Supreme Court used the ‘clear and present danger test’ which restricted speech that could incite illegal actions or threats to national security or public order. - They concluded that the First Amendment does not protect all forms of speech: in this case, this speech created a direct threat of disrupting the draft during wartime. - Justice Holmes reasoned the leaflets were sufficiently likely to disrupt the conscription process. Famously, he compared them to maliciously and falsely shouting ‘Fire!’ in a crowded theatre, which is not speech protected by the First Amendment. Significance: The ruling emphasized that speech encouraging illegal activities, even if nonviolent, could be restricted if it disrupted government functions, setting a precedent for balancing civil rights with public order.

Question 47

CASE STUDY First Amendment rights: Morse v Frederick (2007)

Answer 47

The case found against the protection of free speech. It involved an Alaskan high school student who unfurled a banner reading ‘BONG HiTS 4 JESUS’ across the street from the school at a schoolsupervised event during the 2002 Winter Olympics torch relay. - He was suspended by his principal for promoting the use of illegal drugs but appealed, claiming his freedom of expression had been violated. - The student lost the case on the grounds that schools can indeed regulate speech, ‘school speech’, where it undermines a school’s educational mission or threatens students’ safety. - Had the banner not been displayed at a school-run event or been contrary to an accepted goal of the school (to dissuade illegal drug use), the outcome would probably have been different.

Question 48

The extent of protection from the first amendment:

Answer 48

The First Amendment does not protect unlimited speech and expression can be lawfully regulated. Yet there is a presumption in the USA that favours freedom, especially of opinions, unless it can be proved to the contrary that it must be regulated. These case studies Schenck v United States (1919) and Morse v Frederick (2007) focus on individual rights, but many have argued that the First Amendment should also be used to resist the rise of the security and surveillance state, which also impacts the Fifth and Fourteenth Amendments.

Question 49

How well does the US constitution protect individual rights ?

Answer 49

Very well 1. Many key rights are explicitly protected, particularly in the Bill of Rights, including free speech and expression and the right to a fair trial. They are entrenched and inalienable and would be very difficult to overturn. 2. Supreme Court judgements have often discovered new rights in the ‘elastic clauses’ including ‘equal protection’ and ‘cruel and unusual punishment’. 3. The Constitution does not prevent other rights being protected in other ways such as by Acts of Congress. Equal pay and disability access issues are covered by federal laws, such as the Equal Pay Act 1963, the Lilly Ledbetter Fair Pay Act 2009 and the Americans with Disabilities Act 1990. 4. The USA has adapted well to changing notions of rights and many rights have been ‘updated’ via judicial review. The USA is largely on a par with other democracies. In trickier areas such as abortion, some argue that this is just rebalancing rights between the unborn and women. Many notions of rights are subjective and controversial. Less well: 1. Many rights and groups are not directly or explicitly protected by the Constitution, for example free and fair elections, and the rights of children and people with disabilities. 2. The Supreme Court’s interpretations are inevitably subjective and can (and do) alter over time, creating uncertainties and contradictions. 3. In theory, laws passed by Congress can be reversed and lack the embeddedness of constitutional rights. 4. The USA has some bizarre quirks in its approach to rights. No European democracies still permit the death penalty (forbidden by the European Convention on Human Rights) or grant entrenched rights to gun owners.

Question 50

US Constitution summary:

Answer 50

1. The US Constitution was drawn up in order to promote representative government rather than democracy and to avoid tyranny by way of checks and balances, federalism and the separation of powers. 2. The key features of the Constitution include codification, its compromise nature and how it was originally about the structure of government as opposed to defending individual rights. 3. The Constitution, not the president or Congress, is the sovereign body in the USA. This gives a great deal of power to the Supreme Court through judicial review. 4. The main principles that underpin the Constitution are the separation of powers, checks and balances, and federalism. 5. It has proved difficult to formally amend the Constitution, but informal amendment via the Supreme Court is much more common and enables regular updating and revision. 6. Federalism remains important to the Constitution but states’ powers have diminished in recent times as the power of federal government has grown. 7. The Constitution has adapted to changing times. Despite its flaws and gaps, there remains little likelihood of it being substantially redrafted in the foreseeable future. 8. The Constitution, particularly through the Bill of Rights, protects citizens’ rights, but there is variation in how successful this is.