Nature of the US Constitution Summary:
Designed to stop one person from getting too
much power; meant to limit gov to night
watchmen.
Ratified in 1789
Vagueness of the document, codification and
entrenchment:
→ codified constitution
- 7000 words; sovereignty resides in the
constitution as a source of political
authority.
→ blend of specificity and vagueness
- language = vague; prevents it from
becoming outdated; allowing it to be
interpreted and adapted over time
→ elastic clause doesn't define general
welfare so can be manipulated by
Congress to mean anything
2001 Patriot Act passed using GW clause
even though accused of going against the
4th amendment as it allowed unlawful
searches without a warrant - vagueness
allowed implied powers of congress to
pass legislation to strengthen security
control to prevent terrorism.
- ‘Necessary and proper clause’ = implied
powers.
- Power to draft into armed forces
may be implied by Congress’s
enumerated power to raise an
army and navy
- Reserved powers; for the people + state;
limits the power of FG e.g marriage +
divorce laws differ in each state
- Concurrent powers: shared powers
between the state + FG e.g building roads
,SC has the ability to judge law as
unconstitutional
- This power was given to the Supreme
Court under Marbury v Madison in 1803
- Can become too powerful - vagueness
allows justices to apply their own
ideologies when ruling; e.g liberal justices
interpret the constitution to achieve liberal
outcomes
E.g Ginsburg used the 8th amendment to
rule death penalty as unconstitutional
while some justices disagree
2015 Oberell vs Hobbes
Congress increase of power through elastic
cause; goes against the philosophy of a limited
gov + SC power to decide which legislation gets
passed.
→ entrenchment
- Extra legal safeguards to make it more
difficult to amend/abolish
difficult to amend because CON is protected by
law — specifically Article 5 — which outlines the
amendment process.
Entrenchment ensures the possibility the
Constitution can be changed in response to
emerging developments but that the process was
sufficiently robust to prevent the Constitution
from being changed frequently on the whim of
fashion and circumstance
The constitutional framework (powers) of the
US branches of government
Enumerated powers given to FG
First 3 articles:
- A1: established Congress as the national
legislature
- A2: established the president as chief
exec
- A3: established US SC
,The amendment process, including
advantages and disadvantages of the formal
process
2 stages = proposal stage at national level +
ratification stage at state level.
→ ⅔ of Congress must agree to proposed
amendment (33) OR ⅔ of states must call a
national constitutional convention and adopt
proposed amendment (never used) prevent
Congress from being able to veto an amendment
without states' consent.
THEN
→ ¾ of state legislature need to ratify
amendments (been used all but 1) OR ¾ of state
constitutional conventions need to ratify the
amendment (21st amendment)
Evaluation of process:
PROS:
→ Prevents tyranny of the majority - needs wide
support as ¾ need to ratify → stops gov from
changing it too easily + stops abuse of power.
- Flag Protection Amendment 2006 - illegal
to desecrate US Flag - goes against 1st
amendment of freedom of speech.
- Requires bipartisanship = parties have to
work together
- FG power limited
CONS:
→ lengthy process - difficult to get both Federal +
State to agree
- Only 27 amendments passed
- Requirement of supermajorities makes
process tough
→ Flag Protection Act - received over 50% of
votes in congress but didn't reach the
super-majority threshold.
→ only requires 13 states to block an
amendment - could be the 13 smallest states
which combined have a smaller pop than
California.
Thus tricky to change and thus can't evolve over
time making the US forced to stick to traditions
dating back to 1780.
, Founding Fathers ensured amendments could
only be passed if they have a large majority from
Congress and the people.
Prevents abuse of power as it stops one political
party from changing the constitution to benefit
them = requires bipartisan support as one party
is unlikely to have enough support in either
house.
BUT system allows small % of voters to block
views of the majority = undemocratic
Bill of Rights:
- Freedom of speech, to bear arms,
prohibition of cruel punishments.
Key features of the US Constitution Federalism
and an evaluation of their → compromise between the power of the
effectiveness today national gov and state gov.
→ Supreme Court has overall say over disputes
between the states and central government
Still federalism:
Concurrent powers; both have power to enforce
law like establishing police forces.
Both can establish courts and operate them
within their jurisdiction.
- Obama 2009: signed stimulus package of
$249 billion = which went directly to the
states to spend
- Biden 2021: signed American Action plan
worth $1.9 trillion - $350 billion to state
and local governments.
→ working together; FG providing resources for
states to do as they please.
Consequences of federalism:
→ variation on matters of age people can marry,
drive etc.
→ states can act as policy laboratories; variation
between states on policies like healthcare
provision, immigration etc. Masseschests
Healthcare Programme 2010 is very good and
attracted national attention.
→ elections - run under state law; Arizona
experimented with online voting whereas
Washington has moved to an entirely postal
ballot.
→ political parties are de-centralised state-based
parties. Texas Democrats more CON than
Massechuestest Democrats. Vermont
Republicans more democratic than SC reps.
- Highlighted in 2016 presidential
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