US constitution –
Created 1787 by the founding fathers –
entrenched, codified, a blend of specified and vagueness.
-enumerated powers are very clear, and 10th amendments
-vagueness – congress powers often implied - implied congress can collect taxes for defence.
Most come from the elastic clause.
Since bill of rights just 4 years after the constitution only 17 amendments and only, just 15
operative amendments.
13th abolished slavery, 16th allowed interest taxes, 19th women’s vote, 22nd was residential term
limits.
Codified – written down in a single document which sets out the structure and rules of the
governance of the USA. – the institutions derive there authority from the constitution.
Entrenched – very difficult to change, with amendment process requiring super majorities and
the consent of multiple parts of the US political system.
Amendment process – stage 1 -proposal, 2/3 vote in both houses and 2/3 of state legislatures.
And stage 2 – majority vote ¾ state legislature or majority vote in ¾ of state conventions.
Difficult process to prevent reactive changes and to protect its key principles and provisions.
Over 11,000 amendments have been proposed, most fail never even advancing to the
ratification stage. Example equal rights amendments, 63 and 71, successfully proposed but
failed to gained 38 states ratification only 35, and 5 were later removed.
Supremacy powers – clause within Article 6 establishes the Constitution, federal laws as the
"supreme Law of the Land", taking priority over any conflicting state laws, means judiciary can
strike down and be unmade by judiciary if it downs not abide with constitution.
Judiciable – a constitution containing a higher form of law allowing other laws to be judged
against it to deem it ‘unconstitutional’.
Interpretive amendments through judicial review– SC can change the interpretation of
constitution so changes how it is implied (textualism, originalism, living constitution). 1972 roe v
wade case and 2022 Dobbs v Jackson case.
Implied powers – powers not specifically granted in the Constitution but are assumed from the
wording and the powers it does grant.
Elastic clause – clause within Article 1 granting Congress the power to pass all laws necessary
and proper for carrying out the enumerated list of powers.
Concurrent powers – powers that are shared by both the federal government and state
government - power to tax, build roads, and create lower courts.
Reserved powers – powers not delegated to US by the Constitution, nor prohibited by it to the
States, are reserved to the States or to people.
Necessary and proper clause – clause within Article 1 allowing Congress to imply powers
necessary for it to be able to carry out the enumerated clause.
,Advantages –
-ensures features of constitution are retained
and not damaged by rushed and reactive
decisions.
-sets out the powers of each branch, setting
limitation on government power over other
branches/abuse. Protects federalism and the
powers of the states from the federal
government.
-judicial review means constitution is flexible
and can be changed/evolved.
Disadvantages –
-outdates and too rigid – 2nd amendment.
Does not evolve and change with society
especially considering the current extremely
partisan environment which makes its near
impossible for super majorities. Seen in ERA.
-facilitate abuse, first amendment was used to
justify rich individuals being able to donate
huge amounts of money to political
campaigns. 2nd facilitated mass loss of life in
school shootings. And minorities too
powerful.
-unelected supreme courts given too much power
Separation of powers – power is spread out between congress, president and judiciary, to stop tyranny of one
branch
.
Separation of powers -
Article 1 – states the powers of Congress
Article 2 – established the powers of the government branches.
Article 3- established the US Supreme Court, which checks the other branches – can rule
actions of the president and Congress to be unconstitutional.
This was designed to check against tyranny and the previous British rule. This also aimed to
retain limited government – leaving the citizens with fundamental rights and freedoms.
Executive checks -
The vague language of Article 2 allows the presidential powers to be expanded and allows the
executive to guard against popular democracy.
Congress power is limited by the executive –
Suggesting legislation as they hold legitimacy from their election on the platform (stae of
the union address) of their policies. Trump asked Congress for money for border security
in 2018 in line with his promise to build the wall. This is done in the state of union address.
Sign/veto legislation – choose if it becomes a law or is returned to Congress to be
amended. Obama used veto 12 times with only 1 being overruled. The threat of the veto
alone can stop congress from passing a law.
Commander in chief of the armed forces – the president decides on the stationing and
movements of troops and the use of weapons.
, Executive agreements – to negotiate with foreign power, and avoid senate ratification.
Obama and nuclear deal in Iran. ( not bound by predecessors)
Judiciary power is limited by executive -
Power of Pardon – the constitutional right to excuse someone for a federal crime, or use commutations
to reduce sentences.
Nomination of judicial appointments – president can nominate people to supreme court (must be
confirmed by senate) – Biden , brown jackson
Legislative checks –
Executive power is limited by Congress-
Congress can override veto with 2/3 majority in both houses. Obama overruled on the justice against
sponsors of terrorist act. Both Obama and Trump once, trumps veto over the national defence
organization act.
Congress can ignore/reject the presidential legislative influence. Seen increasingly in divided
governments. Trump experienced this when tried to build a wall despite republican controlled. Since
Biden loosing HOR in 2022 midterms, many of his key legislations blocked including, immigration,
codifying abortion rights, capping insulin prices
Ratify treaties 2/3 – recently Obamas convention on rights of persons with disabilitiys.
The senate must confirm the appointment of judicial appointments – declined Obamas nomination of
Merrick garland (but this check is dependent on divided government) and Bidens executive
appointments, head department of wage and hour division.
Only congress can confirm war – last declared war being WW2
The power of the purse, congress decided where money is sent/funded including that of potential wars
- defund), congress refused to fund Donald trump to build a wall.
They can impeach the president for high crime by HOR and convicted in senate– Trump, non ever
convicted in senate.
Judicial power is limited by congress –
Can challenge the legitimacy and power, questioning the court’s right to exercise judicial review,
declaring action unconstitutional – bidens 430 billion debt forgivness plan.
Congress can pass legislation to attempt to limit the court’s power, by modifying the impact of a
court decision after it has been made, or amending the constitution (proposed by either house with
a 2/3 majority vote in both houses, and then must be ratified by ¾ of state legislatures)
Judicial checks –
Can declare president actions/orders to be unconstitutional
Can declare laws passed by congress unconstitutional
Bipartisanship -
The president and congress could belong to different political parties, as a result they must
compromise and work together to pass laws, treaties, appointments and budgets. Seen to be
effective passing the American rescue plan, inflation reduction act. And in 2021, speaker Johnson
relied on democrats in the house to pass a 1.2 trillion spending bill to avoid gov shutdown. 2024
-passed 95 billion for US allies
Divided government - This refers to when one party controls the presidency and the other party
controls one or both houses of congress. In the last 52 years 1969-2021 we have seen 36 years
, of divided government, for only 15 years of this period one party-controlled presidency and the
house of congress.
(can result in bills and treaties being scrutinised more effectively, prevent bills from being
passed through – same party only rejected 2 in recent years)
Grid-lock - when the parties refuse to comprise and so progress cannot be made. 2019 lasted 35
days under the trump presidency.
But divided governments makes bipartisanship more difficult to achieve, due to the vast
ideological beliefs. This was evident in the 116th united states congress, only passing 344 laws
making one of the least productive, yet the two parties worked together for coronavirus aid.
But it has seen bi-partisanship continue to work - the 98th congress passing some major
legislation. Can be further seen when Obama gained to opportunity to suggest a new supreme
court judge and the house refused to hold a hearing, this ment that the judiciary were equal, so
the lower court rulings became more president. And in the impeachment (Biden no firm proof)
They are becoming more polarised, with nearly every gov making new records beating the last
for lack of accomplishment.
This has become more evident in the judicial appointments - Obamas nomination of merrick
garland to the supreme court - wasn’t heard due to him being in his last term - compared to
trump.
Trumps budget rejected, Obamas rejected.
In the 2020 election, trump declared himself the rightful winner of the election this resulted in a
storming attempting to halt the constitutionally mandated certification.
Federalism
- Power is shared, each state has equal power and is as powerful as the federal government.
They share different powers, but states through their legislatures can create their own laws. This
was seen in gun laws. The federal gov cannot force anything due to the states' reserved rights.
The power of the state is protected from federal encroachment by the constitution and
amendment process. All states have the same level of decision making power.
Federalism isn’t directly stated in the constitution but implied through how the constitution sets
out the power of federal government and their limits. Articles explicitly state the powers of
different branches and concurrent powers, that both federal government and the state has (taz
raising).
The government is limited under the 10th Amendment and reserves the right of the of the states,
any powers not
stated
How is Power
divided -
