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Substantive Criminal law
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Legal terms discussed in course LBA of Law in Society (year 1)
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Essay Plans:• Constitution and Federalism
Evaluate the extent to which the constitutional system of checks and balances are an
obstacle to effective government
Definition of effective government:
- Ability to legislate
- Ability to provide an effective defence and security
- Protect civil liberties
- Ensure that states’ rights are protected
Separation of powers in the US means that bipartisanship is required for effective
government and because of the increased polarisation in US politics recently, this has
led to a breakdown in bipartisanship and the numerous constitutional checks and
balances increasingly provide an obstacle to effective government in the US
• Ability to legislate
Ineffective
• 2013 least productive year for legislation since 1948 only 57 bills were signed into law by
Obama – bc of a Democrat Senate and Republican HofR meant gridlock
• Republicans attempt to delay/defund Affordable Care Act and not wanting to be
bipartisan led to 16 day govt shutdown 2013 and during this time no legislation could
be passed = govt ineffective
• End of 2018-2019 - 35 day stand-off of Trump’s govt shutdown as he wasn’t given
enough money in the budget for his wall
• Obama’s proposed weak background check gun laws, despite high public support,
didn’t pass – bc of Republican controlled Senate during this time voting it down 57-43
• Filibustering on major pieces of legislation hinder legislation e.g. longest filibuster done
by Thurmond for over 24h against 1957 Civil Rights Act, gives black minority citizens the
right to vote
• Congress’s power of the purse limits how much the president can do – although can
try circumvent congress with executive actions – both Obama and Trump have faced
govt shutdowns therefore polarisation = ineffective govt as cannot work together to
pass an agreed budget
• E.g. Obama’s planned immigration reform which would have made 5 million illegal
immigrants legal in order to integrate them into society was blocked by the Republican-
lead Congress and then blocked again when he tried to issue an Executive Order (DACA
2012) so limiting the power of the president and the effectiveness of government.
Effective
• Executive orders (only within existing federal reforms or departments) have become
more common – Trump issued 80 including new American embassy in Israel –
arguably when backed by a Congress of the same political party the president is able
to do this
,2. Ability to provide efficient defence and security
Effective
• Although in theory the president does need to seek Congressional approval to go to
war this have largely phased out since 2003 – Obama and Trump both ignored
Congress e.g. April 2017 Trump didn’t seek Congressional approval to launch
airstrikes in Syria and Obama ordered US ground troops to Syria and assisted rebel
forces against ISIS without congressional authorization
• Bruce Ackerson describes Obama’s actions as ‘marking a decisive break in the
American constitutional tradition’ - BUT undermines the US constitution
• Nevertheless, Presidents can quickly react to events and provide efficient defence
• Although the constitutional check on the power of the president has largely become
ineffective, it has allowed or effective government in providing defence.
3. Protect civil liberties
Effective
• As result of gridlock in congress, SC has had to step in and ruling have lead to greater
civil liberties – because judicial review right given to SC themselves and not explicitly in
constitution there is little restriction on them – can’t really overrule such legal precedents:
e.g.
1. Obergefell v Hodges 2015
2. Roe v Wade 1973
3. Brown v Board of Education 1954
Ineffective
• Still civil liberties obstructed e.g. Trump ‘zero policy’ immigration policy where children
are separated from their parents who try to cross the border illegally or banning of
transgender soldiers
• Patriot Act 2001 allowing expansion of power of the govt to spy without a court order –
because of Republican majority in Congress and the situation of 9/11 Bush didn’t need
bipartisanship as much as other president to pass this act.˙.ineffective check on
congress as obstruction of civil rights
• Appointment of Brett Kavanaugh – confirmed by a Republican senate highlighting how
the system of checks and balances has failed to protect rights – SC now right-wing
conservative biased which could threaten newfound civil liberties e.g. gay marriage and
abortion - Schumer said this puts ‘rights on the judicial chopping block’ BUT only
speculative - SC has previously protected civil liberties such as Obergefell v Hodges
2013 using the 14th Amendments of Due Process Clause and the Equal Protection
Clause overruling congresses Defence of Marriage Act 1996 in Windsor v US.
Therefore, the protection of civil liberties isn’t only dependent on checks and balances but the
political position of the legislature, judiciary and executive along with the wider context of the
situation.
,4. Ensure that states’ rights are protected
Effective
• Shelby County v Holder 2013: SC ruled that Section B of the Voting Rights Act was
unconstitutional so states have autonomy over how they cast their vote at elections
because the Voting Rights Act 1965 previously meant that certain jurisdictions with a
history of discrimination to submit any proposed changes in voting procedures to the
U.S. Department of Justice or a federal district court in D.C. – before it goes into effect –
to ensure the change would not harm minority voters - challenges the equal sovereignty
of the states.
• States have discrepancies over taxation with some states with no income tax (7)
Ineffective
• Obamacare infringe on states’ rights over healthcare – Democrat majority Congress so
was allowed to easily pass through
• 1819 McCulloch v Maryland case: federal govt denied Maryland the right to impose its
own tax on money and banks
• Obamacare controversial in overriding states’ right of control over their own healthcare
In conclusion, checks and balances have increasingly become an obstacle to effective
government primarily because of increased polarisation and therefore the breakdown of
bipartisanship. The Founding Fathers built in the constitution the requirement of
bipartisanship and avoiding tyranny of any sort to have a functional state but
polarisation has sacrificed efficient government that was intended. In terms of
legislation, presidents have been increasingly limited in what they can legislate with a
congress not in their favour and even when it is in their favour legislation that they may
pass may mean civil liberties are obstruction such as in the Patriot Act and Obamacare
has lead to infringement of states’ rights also meaning ineffective government rights.
Ability to have efficient defence is upheld since this power predominately lies with the
president and is not subject to the checks and balances the other factors rely upon.
‘The US Constitution is no longer fit for purpose’ Discuss
How Democratic is the US Constitution
1.Entrenchment results in extra legal safeguards intended to protect the rights of
the people
BUT rigidity has allowed antiquated proposals to remain and arguably rights
protection does not move with the times
2.Checks and balances “a double security arises to the rights of the people”-
avoid tyranny of gov
BUT can often lead to ineffective gov which is NOT democratic, executive orders
and executive agreements are not democratic
, 3.Electoral process involves the people- direct democracy
BUT Presidents can still be elected without majority?
Evaluate the extent to which federalism in the US still conforms to the principles of the
US constitution
Introduction: US constitution doesn’t clearly spell out powers of states and federal govt
with the Article of Supremacy in Article VI establishing federal law as supreme to state
law and the 10th Amendment protecting powers of the state as reserved powers in
regards to federal government – can be interpreted 4 ways. Therefore, because of
vagueness, it is difficult to determine what principles of the constitution apply but one
key principle is limited govt in the context of British tyranny. Relationship between states
and federal govt has changed in favour of big govt underpinned by a change for a more
complex society of war, terrorism and civil rights. Federalism doesn’t conform as
strongly to the principles of the US Constitution as it could do but Trump is attempting to
change this.
1. States have kept a significant amount of their power and it is often left to states to
interpret federal law
Legal consequences of federalism means a variety of laws e.g.
• Guns: after Sandy Hook Maryland and NY issued tough regulations whilst Virginia
relaxed theirs, Georgia 2014 gun bill allowed citizens to carry a gun in almost any
public building with critics calling it ‘guns everywhere law’, Massachusetts recently
passed strongest gun control regulations in the nation
• Abortion: Alabama ‘heartbeat’ law to restrict abortions
• Gay marriage: legalised one state at a time until 2015 SC ruling
• Consent: 1979 North Carolina’s SC decision in State v Way held that once consent to
sex given it cannot be withdraw and 2016 Oklahoma declared that state law doesn’t
criminalise oral sex with an intoxicated and unconscious person which contrasts to
California, the first state to pass a law that has a clear definition of consent
• Death penalty: 31 states have it and the rest don’t
• Tax: 43 states levy own income tax and 45 own sales tax
• NMW: Even when Obama issued an executive order to raise minimum wage of
federal government employees, raising minimum wage across America would require
congressional authorization
Shows the principle of limited government and although it isn’t ideal it is a way of dealing with
increasing polarisation as some issues are too diverse to be nationalised
• Up to states how to implement the demands of the federal govt
• Each states decides how to vote e.g. Arizona online voting whilst Oregon postal ballot
• Printz v US (1997): requirement for all states to background check individuals buying
firearms was unconstitutional because ‘incompatibility with system of dual sovereignty’
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