The constitutional framework of US gov Flashcards
1
Q
What are the origins of the US Constitution?
A
- following American Revolution, first attempt at creating new gov based on Articles of Confederation between 13 original US states -> unrest/tension.
- Constitutional Convention in Philadelphia May-Sept 1787 -> US Constitution.
- had to be ratified by nine of 13 states; New Hampshire became ninth to ratify in June 1788.
2
Q
What are the key features of the US Constitution?
A
- representative gov not democracy.
- fear of mass democracy.
- product of time, culture, authors.
- slavery was part/parcel of nation, intrinsic to economy/society of several states.
- not about individual rights, but about framework/structure.
- order of articles not pure chance.
- was a compromise.
- based around negotiation/cooperation.
- left much unsaid/vague.
- loyalty/attachment.
- Constitution to be sovereign.
3
Q
What is meant by ‘representative government not democracy’?
A
- indirect election of president (Electoral Commission).
- Senate initially chosen by state legislature; altered to direct election in 1913 by 17th Amendment.
4
Q
How is it a product of its time, culture, authors?
A
- Founding Fathers all white Christian males.
- nearly all were slave owners, most owned land, no desire to take power away from wealthy elite.
5
Q
How was slavery part of the new nation?
A
- South - white Americans forced African Americans to do slave labour on cotton/tobacco plantations.
- Constitution was silent on use of slavery.
6
Q
How is the order of the articles important?
A
- Congress comes first -> principal player.
- President mentioned second; envisaged as trouble-shooter, international representative, focus for unity.
- had no desire to manufacture a US version of monarch.
- SC last/role lacked specific details; no requirements in terms of age, number, nationality; no mention of role as interpreters of Constitution.
7
Q
How was the constitution a compromise?
A
- Connecticut Compromise dealt with clash between small/large states.
- compromise between states with large populations of enslaved people eg Virginia and others via three-fifths clause.
- between Founding Fathers such as Hamilton who wanted strong central gov, and those such as Jefferson who wanted most power to lie with individual states.
8
Q
How was there an implicit fear of power?
A
- power should be separated/shared between states and federal gov, and different institutions of federal gov.
- limited gov was key principle; balance of individual/gov rights; balance between federal gov/states.
- codified.
9
Q
How is there vagueness in the constitution?
A
- powers outlined vaguely = implied powers eg Congress given power to provide for common defence/general welfare; could be used to justify military draft or national healthcare programme.
- very specific in some places eg age requirements = enumerated powers.
- designed to be long lasting/not easily overturned.
10
Q
How is the vagueness/silence a strength?
A
- allowed Constitution to evolve/develop; the term ‘elastic clause’ has enabled adaptation to changing values; eg Immigration Act 1924 reflected clear racial bias, banning entry of all Asian people, Voting Rights Act 1965 forbade racial discrimination in voting.
11
Q
How is the vagueness/silence a weakness?
A
- saying nothing on slavery - seeds sown for sectional divide that would culminate in civil war; slavery only banned afterwards under 13th Amendement 1865.
- ambiguity - gun rights/ability to make war.
- Congress has sole power to formally declare war; gives title of commander-in-chief to president
12
Q
What is the importance of judicial review?
A
- grants SC power of interpreting Constitution; precedent set by 1803 Marbury v Madison.
- crucial function but has led to politicisation; many constitutional issues.
- Court can revise opinions; 1896 Plessy v Ferguson case upheld racial segregation laws, reversed in 1954 Brown v Board of Education of Topeka.
13
Q
What is gridlock?
A
- constitution designed to promote cooperation/compromise, often requiring mutual agreement eg all laws must be approved by both houses.
- frequently, there is competition/deadlock between branches; budget proposed by president, approved by Congress -> has led to standoff/gridlock.
- limited gov shutdowns have occurred; 35 days Dec 2018-Jan 2019 over Trump’s insistence on greater funding for border wall.
14
Q
How do elections work?
A
- organisation of election in hands of 50 individual states.
- certain national criteria mandatory eg Voting Rights Act 1965.
- wide variations in use of postal ballots, early voting, voting rights of ex-felons.
- some including Utah automatically mail ballots to voters.
- following 2020 elections, Georgia state law required that as neither candidate for two senatorial races achieved over 50%, a runoff election held in Jan.
- voter ID laws; Kansas/Mississippi have strict requirements over what’s permissible.
15
Q
What is the separation of powers?
A
- gov divided into three distinct branches - legislature, executive, judiciary to avoid tyranny/absolutism.
16
Q
Arguments that the separation of powers is significant
A
- each branch checked/limited by other two.
- no person can serve simultaneously in Congress/executive; Hilary Clinton had to resign as senator when appointed secretary of state; Deb Haaland resigned as congresswoman when Biden nominated her as secretary of the interior.
- helps prevent one branch having too much power/elective dictatorship; president needs to work with Congress to get policy through.
- preserve notion of independent/non-political judiciary, vital to defence of civil liberties/entrenched rights.
17
Q
Arguments that the separation of powers is less significant.
A
- ‘separation’ is misleading; shared powers is better eg both president and Congress have powers over passing laws.
- VP also senate president/has casting vote in event of tie; Mike Pence used power to confirm Betsy DeVos as education secretary in 2017/Jonathan Kobes for Court of Appeals in 2018.
- president with supportive SC can wield much power.
- US judiciary very politicised; politicians in nomination/confirmation process lessens independence.
- presidents have power of pardon, overlapping with judicial powers.
18
Q
What are some presidential checks on Congress?
A
- Presidents veto acts/resolutions - Obama vetoed Keystone XL pipeline/issued 12.
- threaten veto - Obama made four in 2015 State of the Union Address.
- executive orders to bypass need for formal legislation - Trump issued travel ban on visitors from Muslim-majority countries in 2017.
- use commander-in-chief role to deploy troops overseas - 2001/3, Bush ordered invasions of Afghanistan/Iraq.
19
Q
What are some presidential checks on the courts?
A
- president nominated all federal justices including SC - Obama appointed Sonia Sotomayer/Elena Kagan.
- president can issue pardons/commutations - Ford pardoned Nixon; Obama issued record 330 commutations on final day; originally included to enable president to pardon rebels in early days of nation.
20
Q
What are some congressional checks on president?
A
- veto can be overturned by supermajority in both houses - Congress overturned Obama’s veto of JUSTA in 2016; Bush had 4/12 overturned.
- Senate must confirm presidential appointments - blacked Obama’s appointment of Robert Wilkins to DC court of appeals in 2013.
- threat of Senate rejection powerful - Biden’s controversial 2020 pick of Neera Tanden as Director of OMB withdrawn when it was clear she wouldn’t secure enough votes.
- Congress has power of the purse/can turn down presidential requests for funding.
- Congress can decline to pass legislation desired by president - Obama requested gun-control measures following Sandy Hook school shooting in 2012.
- impeachment - House voted for proceed with impeachment against Trump in 2019 (not convicted in Senate).
- has power to block treaties - Senate failed to ratify Convention on the Rights of Persons with Disabilities in 2012.
- can launch investigations into presidential actions - House Oversight and Reform Committee launched inquiry into potential conflict of interest in 2019.
21
Q
What are some congressional checks on courts?
A
- can impeach federal justices - Louisiana federal judge Thomas Porteous in 2010 for corruption.
- constitutional amendments can be initiated to overturn SC verdicts - court found national income tax to be unconstitutional in 1896; reversed by ratification of Thirteenth Amendment in 1913.
22
Q
What are some judicial checks on president?
A
- courts can rule presidential actions unconstitutional/illegal - Hamdan v Rumsfeld (2006) rules against special military commissions set up by WBush to try suspected members of al Qaeda.
23
Q
What are some judicial checks on Congress?
A
- can declare acts of Congress to be unconstitutional, so require them to be repealed - Defense of Marriage Act ruled unconstitutional in United States v Windsor in 2013; struck down DOMA’s ban on federal recognition of same-sex marriages.
24
Q
What is the significance of checks and balances?
A
- encourages political players to deploy tactics to get around constraints eg executive agreements.
- president subject to most, showing framers’ fears.
- can affect timing of presidential initiatives; try to push through legislation in first 2 years eg Obama secreting ACA by early 2010; danger of divided gov.
- much politics at national level characterised by gridlock (fault of system, or fault of players?); even during emergence of Covid, it took several days of negotiation to get original $2.2tn stimulus package.
- not all have equal significance; most powerful are rarely used/successful; even presidential veto declining - Obama 12, Reagan 78.
25
What is the formal amendment process?
Route 1:
- 2/3 both Houses propose/vote on constitutional amendment; sends the proposed amendment to the states for ratification.
- 3/4 states ratify proposed amendment, either by their legislatures or through special ratifying 'conventions'.
Route 2:
- 2/3 state legislatures ask Congress to call convention for proposing amendments as stipulated in Article V.
- States send delegates to convention, where they can propose amendments.
- 3/4 states ratify given amendment approved by the convention, either by their legislatures or special ratifying conventions.
26
What are significant facts about constitutional amendments?
- 27 successful; first ten = 1791 Bill of Rights.
- wide range of topics, but several concern individual rights/voting; 26th amendment lowered voting age to 18.
- one amendment overturned earlier one; only 25 ‘live’ ones.
- passed is response; amendment restricting president to two terms passed after 13 year presidency of FDR, who died in office in 1945.
- not all have equal significance - 23rs gave Washington DC votes in presidential Electoral College (not as important as enfranchising women/ending slavery).
27
What are some key amendments from the Bill of Rights?
- 1st - freedom of religion, speech, press, assembly.
- 2nd - right to bear arms.
- 8th - banned use of ‘cruel and unusual punishment’.
28
What are some key amendments after the Bill of Rights?
- 13th (1865) - abolished slavery.
- 14th (1868) - gave citizenship to former enslaved people; included ‘equal protection’ and ‘due process’ clauses.
- 17th (1913) - direct election to Senate.
- 27th (1992) - any increase to congressional salaries could only happen after next election.
- numerous have been proposed; ERA was passed by Congress, but failed to get state ratification within allocated timeframe.
29
Arguments that it’s too hard to amend constitution formally.
- high thresholds - 27 over 200 years.
- current Constitution contains provisions some consider outdated eg 2nd amendment/Electoral College.
- prevents Constitution being updated; not all groups protected; complexities of passing amendment makes it possible to achieve.
- too much informal amendment takes place via SC (unelected/unaccountable).
- no national constitutional convention has ever been held.
30
Arguments that the constitution isn’t too hard to amend formally.
- high thresholds -> change happens with wide consensus/agreement.
- obsolete clauses can be repealed (Prohibition); constitutional problems could be reformed; 2nd Amendment capable of sensible adjustment including banning sale of certain weapons.
- rights of many groups can be equally well defended by federal/state laws; debate around which groups’ rights should be protected eg women/children supported, transgender people less so.
- SX often takes notes of public opinion eg LGBTQ+ rights.
- current amendment procedure allows for federal dimension to be present via national constitutional convention.
31
What are some examples of informal amendments?
- District of Columbia v Heller (2008) - explicit right to private gun ownership.
- right of those stopped by police to o remain silent/avoid self-incrimination.
- extension of free speech to political activity.
- rights of LGBTQ+ Americans in Obergefell v Hodges (2015).
- extending right of privacy to mobile phone date in Carpenter v United States (2018).
32
What is federalism?
- system of gov in which bodies such as states share power with national gov.
- reserved powers of states in USA.
33
Which areas do states still retain important roles in?
- ability to legislate on wide range of areas including local taxes/access to abortions - several conservative states eg Arkansas have tightly restricted abortion laws.
- issue of death penalty - murder in Texas can leave you on Death Row; illegal in NY.
- presidential election - Electoral System remains state based.
- states run/conduct elections.
- in times of crisis, governors/states at forefront, but require national involvement; coronavirus revealed differing approaches (Ohio quick to lockdown, Florida much slower, Arkansas didn’t issue full lockdown).
34
What are the key rights enshrined in the Constitution?
- 1st Amendment - freedom of speech, expression, press, religion.
- 2nd - bear arms.
- 4th - right against unreasonable searches.
- 5th - right to not incriminate oneself.
- 6th - swift, fair, public trial.
- 7th - receive jury trial in civil lawsuits.
- amendments that have protected against slavery and racial/gender discrimination in voting.
35
What happened in Schenck v United States (1919)?
- two socialists convicted under Espionage Act of distributing leaflets urging ppl to disobey draft.
- SC concluded that 1st Amendment doesn’t protect speech that could create clear/present danger; leaflets likely to disrupt conscription process.
- Justice Holmes used example of shouting fire in a crowded theatre.
36
What happened in Morse v Frederick (2007)?
- involved Alaskan high school student who was suspended for supposedly promoting use of illegal drugs; student claimed free speech had been violated.
- SC ruled that schools can regulate speech where it undermines educational mission or threatens safety.
37
Arguments that the Constitution protects individual rights well.
- many key rights explicitly protected (Bill of Rights); entrenched, inalienable, very difficult to overturn.
- SC judgements have often discovered new rights in elastic clauses including equal protection/cruel and unusual punishment.
- doesn’t prevent other rights being protected in other ways; equal pay/disability access issues covered by federal laws eg Equal Pay Act 1963, Americans with Disabilities Act 1990.
- USA has adapted well to changing notions of rights; many updated through judicial review; in areas such as abortion, some argue it’s a rebalancing of rights between the unborn and women.
38
Arguments that the constitution doesn’t protect individual rights well.
- many rights/groups not directly protected eg free/fair elections, rights of children/people with disabilities.
- SC interpretations are subjective/alter over time; uncertainties/contradictions.
- laws passed by Congress can be revered.
- USA has some significant differences; no European democracies still permit death penalty/grant entrenched rights to gun owners.
39
How significant is federalism?
- ensures one body isn’t too powerful; US population too large/diverse to have one body legislating.
