Text Book - Constitution Flashcards
(34 cards)
1
Q
Historical background to the constitution
A
- drawn up at the Constitutional Convention of 1787
- prior to this and the American revolution in the 1770s, America was a British Colony
- colonists saw the British government as oppressive and tyrannical
- Declaration of Independence was drawn up in 1776 which rejected the British Monarchy and Parliament, and claimed sovereignty to a new nation
2
Q
Articles of Confederation
A
- first attempts of a US constitution
- drawn up in 1776
- passed in 1777
- the primary aim was to protect the interests of the 13 states and create a weak national government, due to suspicion of centralised authority and arbitrary british rule
- this saw the rise of the legislative branches
3
Q
Federalists
A
- favoured a strong national government to counter the tyranny of the state legislatures
- they believed that the common man needed filtering his opinion through a chosen body of citizens ‘whose wisdom may best discern the true interest of their country’
4
Q
Anti-Federalists
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- anti-federalists saw the notion of filtering as the elevation of the few at the expense of the majority
- they thought representatives should mirror rather than filter public opinion
- or that there should be no representatives at all
- and government should be conducted by assemblies of people
5
Q
Article 1
A
Article One describes the Congress, the legislative branch of the federal government. Section 1, reads, “All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”
6
Q
Article 2
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Article Two describes the office of the President of the United States. The President is head of the executive branch of the federal government, as well as the nation’s, head of state and head of government.
7
Q
Article 3
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Article Three describes the court system (the judicial branch), including the Supreme Court. There shall be one court called the Supreme Court. The article describes the kinds of cases the court takes as original jurisdiction. Congress can create lower courts and an appeals process. Congress enacts law defining crimes and providing for punishment. Article Three also protects the right to trial by jury in all criminal cases, and defines the crime of treason.
8
Q
Article 4
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Article Four outlines the relation between the states and the relation between each state and the federal government.
9
Q
Article 5
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Article Five outlines the process for amending the Constitution.
10
Q
Article 6
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Article six confirms that the constitution and the laws of the United States ‘shall be the supreme Law of the Land’
11
Q
Article 7
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Article seven describes the process of ratification
12
Q
Principles of the Constitution:
Republicanism
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- republicanism (indirect democracy) favoured by the federalists was the basis of the system of government
- the methods of elections was a compromise with anti-federalists
- anti-federalist desire for a legislature closely in touch with the views of the people created the House of Representatives (2 year terms)
- federalists belief that the popular passions needed to be filtered created a Senate and Executive (6 year terms - indirect elections)
13
Q
Principles of the Constitution:
Separation of Powers
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- Madison wrote in Federalist 47 that the accumulation of all power in the same hands ‘may justly be pronounced the very definition of tyranny’ and consequently each of the three functions of government - legislative, executive and judicial - was to be administered by a separate institution
14
Q
Principles of the Constitution:
Checks and Balances
A
- checks and balances were incorporated into the powers of both legislatures and executives, so that neither should be able to function independently
- Congress has a number of significant checks on the president:
1. Congress controls the executive budget
2. Congress can reject all legislation requested by the president
3. Congress can impeach and remove the president for ‘high crimes and misdemeanours’
4. The Senate confirms major presidential appointments by a simple majority
5. The Senate ratifies foreign treaties signed by the president by a two-thirds majority
6. Congress can override a presidential veto by a two-thirds majority in both houses
7. Congress has the sole power to declare war, through a majority vote in both houses
The president can veto congressional legislation
Checks on the Judiciary:
- the president and the Senate are jointly responsible for judicial appointments
- Congress can decide how many justices sit on the Supreme Court and create new lower courts
- Congress can impeach and remove judges for misbehaviour
- Congress can pass constitutional amendments reversing court decisions but none is a significant check on the core function of the judiciary
15
Q
Principles of the Constitution:
Federalism
A
- the constitution is concerned with the powers and relationship of the different branches of the federal government, and the relationship between the federal government and the states
- 10th amendment: ‘The powers not delegated to the United States by the constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people’
- this makes it clear that the federal government was entitled to exercise only those powers granted to it by the constitution
16
Q
Principles of the Constitution:
Preservation of individual rights
A
- the preservation of individual rights is upheld in the Bill of Rights as a compromise to the anti-federalists
- the rights of the first ten amendments were not originally enforceable against the state governments
17
Q
Amending the Constitution:
Procedure
A
- process for amending the constitution is laid out in Article 5 of the constitution
- Amendments can be proposed either by Congress (two thirds majority) or by a national constitutional convention (two thirds of the states)
- they then need to be ratified by either three-quarters of the state legislatures or by three-quarters of state constitutional conventions
- there is no time limit for the process of ratification
- Coleman v Miller (1939) ruled that the process of ratification can be completed decades of even centuries after the original approval by Congress
- the 27th amendment which was ratified in 1992 was approved by Congress in 1789
18
Q
Amending the Constitution:
History
A
- there have only ever been 27 amendments to the constitution
- the first ten were outlined in the bill of rights
- only 17 further amendments have been ratified in the 200 years between then and now
- although thousands of others have been proposed
- all successful amendments have been concerned with advancing equal rights or reforming government
- of the many amendments proposed since 1992 none has been approved by the required majorities in Congress
- Pressure groups are keen to pressure representatives and senators to introduce amendments, as they have the benefits of raising the profile of the issue and, because of the importance and emotional pull of the constitution, of motivating supporters
19
Q
which two presidents have proposed an amendment?
A
- sometimes presidents propose an amendment to demonstrate their allegiance to their core constituency
- President Reagan proposed to reverse the Supreme Court’s ruling on school prayers in 1982
- President Bush proposed an amendment making same-sex marriage unconstitutional in both 2004 and 2006
- on neither occasion could it gain the 60 votes required to overcome a senate filibuster
20
Q
evolution of federalism:
dual federalism
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- dual federalism describes the early years of American history, where the states exercised a similar level of power to the federal government
21
Q
evolution of federalism:
cooperative federalism
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- Great Depression ended this period, as it caused the federal government to greatly expand its role, by creating huge national public work schemes (government programmes) - this period was known as cooperative federalism
22
Q
evolution of federalism:
coercive federalism
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- 50s and 60s saw coercive federalism whereby Congress used a broad reading of the ‘Commerce Clause’ to pass new laws on Civil Rights, established new federal programmes like Medicare and Medicaid, and used categorical grants to coerce states into taking certain actions
23
Q
evolution of federalism:
new federalism
A
- Nixon led the backlash of federal power in the 70s
- Reagan wanted to shrink the size and cost of the federal government, returning power to the states
24
Q
evolution of federalism:
Bush
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- he created the Department of Homeland Security in 2002 to focus on anti-terrorism, and massively increased defence spending
25
1) The constitution delegates certain powers to Congress, and reserves all others for the states
- enumerated powers are clearly listed as exclusive to the federal government
- e.g. the power to collect taxes, regulate interstate commerce, print money, declare war and establish an army
- 10th amendment: powers not delegated to the federal government is reserved to the states
- the Printz v. US (1997), the Supreme Court ruled that the Brady Handgun Prevention Act was unconstitutional because it required state law enforcement to conduct background checks on those buying guns
- the justices argues that the Constitution does not give Congress the power to 'commandeer' state law enforcement and require them to enforce federal law
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1) However, Congress has used the 'necessary and proper clause' to greatly expand its powers
- not restricted by enumerated powers
- there are further implied powers
- Article 1 includes the necessary and proper clause stating that Congress has the power to do all that is necessary and proper to carry out the enumerated powers
- this clause has been used to expand the federal government's reach
- e.g. in the Supreme Court case McCulloch v. Maryland (1819), the justices ruled that it was 'necessary and proper' for Congress to establish a federal bank in order to carry out its enumerated powers to collect taxes, borrow money and regulate commerce
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2) The constitution makes it clear that federal law is supreme over state law
- article 6 of the constitution states that the US constitution and federal laws and US treaties are to be considered the "supreme law of the land"
- establishes that federal law is supreme over state law
- states cannot pass laws that conflict with federal laws
- in the case Arizona v. United State (2012), the federal government argued that several of Arizona's immigration laws conflicted with federal laws including Arizona SB1070
- the Supreme Court agreed 5-3 that three of the four state laws were unconstitutional
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2) However it isn't always possible for the federal government to enforce federal laws in every state
- 23 states have legalised marijuana for medical use and 4 for recreational
- but under the Controlled Substance Act (1970), a federal law, the possession of marijuana is illegal
- as there are only so many federal officers available they said that it would be unlikely for them to persecute individuals for drug use in their state as they need to focus their recourses on more serious crimes
29
3) the commerce clause has been interpreted extremely broadly, arguably beyond the Founder's intentions
- the 'Commerce Clause' gives Congress the power to regulate interstate commerce
- over time the commerce clause has been used to justify considerable expansions in federal power
- e.g. in Gonzales v. Raich (2005) the Supreme Court ruled that the Commerce Clause permitted Congress to ban the growth and use of medical marijuana in states that had legalised its use, even though this marijuana was not intended to be sold to other states, as it could possibly end up across state lines and was therefore 'interstate trade'
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3) However the commerce clause does have its limitations, protecting the power of the states
- US v. Lopez (1995), the Supreme Court ruled that the Gun-Free School Zones Act (1990) was unconstitutional, as the Commerce Clause did not have the power to regulate carrying the carrying of hand guns, therefore the Supreme Court on a 5-4 decision that the Act was unconstitutional
31
4) In addition to the 'exclusive powers' of the federal and state governments, there are a number of 'concurrent powers' listed in the constitution which belong to both
- concurrent powers include the power to levy (impose) and collect taxes, define crimes and set punishments
- this ability gives considerable power to the states
- e.g. Texas has used extremely competitive tax rates in an attempt to attract greater investment and grow the state economy
32
4) However these state laws much still be compatible with the US constitution
- many states have adopted the death penalty for the most serious crimes
- but recently in the case Kennedy v. Lousianna (2008) the Supreme Court ruled that in order for state executions to comply with the 8th amendment, only individuals convicted of murder could be executed, requiring some state to make amendments
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5) Since the 16th amendment, Congress has used categorical grants to coerce (persuade by force) states into taking certain actions
- 16th amendment gave the federal government greater power to levy income taxes on all citizens
- Congress was in a position to use categorical grants to coerce the states into taking actions it was unable to require them to by law, due to more money being paid to the federal government
- e.g. Congress lacks the power to set a minimum drinking age, so the National Minimum Drinking Age of 1984 gave states funds for building and maintaing roads, on the condition that they implemented a minimum drinking age
- in the case South Dakota v. Dole (1987) the Supreme Court ruled 7-2 that it is constitutional for Congress to attach reasonable conditions to grants due to the 'spending clause'
- because ultimately it is up to the states to decide whether to take the funds or not
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5) However the Supreme Court has sometimes ruled such coercion as unconstitutional
- The Patient Protection and Affordable Care Act (2010) gave states additional funding to expand their Medicaid programmes, which provide financial assistance to the families that cannot afford healthcare costs
- the law said that if states refused to expand their Medicaid programmes, they would lose all of their Medicaid funding
- the the case NFIB v. Sebelius (2012) the Supreme Court ruled that the Medicaid expansion was unconstitutional because by threatening to withhold all of a state's medicaid funding, the federal government was effectively forcing them to expand their programmes undermining the 10th amendment
