US Constitution & Federalism
1. Evaluate the view that federalism no longer exists in the US.
Federalism is a structure of politics and government in which power is divided between a national
government and state governments, both of which have significant control over clearly defined areas
of government. All states have the same level of decision making power and the role of the federal
government Presidency and Congress) is limited to what is necessary.
It can be argued that the US is no longer federal today, as in the 20th century there was a significant
expansion of federal power in areas of policy traditionally controlled by the states/shared between the
states and federal government. This period is known as cooperative federalism, defined by increased
interaction and cooperation between the states and federal government. George W. Bushʼs 2002 No
Child Left Behind Act introduced major changes to education policy, with the federal governmentʼs
role increasing significantly to try and create uniform national standards, despite education policy
being traditionally controlled by the states. In response to the Black Lives Matter protests, Trump
deployed federal troops to tackle the protests, despite several states opposing it and local policing
being an area of policy traditionally controlled by the states. This shows how recent Presidentʼs have
encroached on state power in particular areas to drive through their policy aims.
On the other hand, it can be argued that the US does remain federal today as states retain significant
control policy, which can be seen in the fact that there remains significant variation in policy between
different states. These include determining the drinking and driving age. Finally, recent Presidents
have also respected federalism and allowed states significant control over important areas of policy.
Trump rolled back many of the Obama-era environmental policies, with the intention of handing power
back to the states to decide on regulation. Overall, the more persuasive argument is that the US is still
federal today.
Federalism does exist in the US because the 10th Amendment reserves states rights to legislate on
issues not mentioned in the article of the constitution. The Constitution sets out Congress's
enumerated powers which are directly stated. This means the states reserve the right to legislate on
any powers outside of the enumerated powers. This system provides a check and balance on the US
Congress as desired by the founding fathers, who intended to create a system to avoid tyrannical
leaders. This gives states the power over important areas of policy including regulating local
commerce, providing for public safety through policing and establishing and maintaining schools.
However, the necessary and proper clause article alongside the commerce clause enables Congress
to have implied powers alongside their enumerated powers. These implied powers are powers which
can be interpreted from the constitution or uphold values of the constitution. Laws such as the Civil
Rights Act in 1964 or Social Security Act undermine the 10th amendment as these powers are not
directly mentioned in the constitution. However, the SC is seen as effective at protecting state’s rights.
In the United States v. Lopez 1995, the Supreme Court set limits on Congressʼ use of the Commerce
Clause by ruling that the Gun-Free Zones Act was unconstitutional as the measure had nothing to do
with interstate commerce. This shows that there are clear limits to the implied powers of Congress
and that the Supreme Court has upheld federalism. Overall, the more persuasive argument is that the
US remains federal today as federalism and state power are effectively protected by the constitution.
Federalism can be argued to have declined as the Congress is passing large and all-encompassing
legislation that diminishes federalism. For instance, the Affordable Care Act 2010 which required
states to expand medical aid for less fortunate individuals and families. Or when in Obergefell v
Hodges 2015 the federal government expanded the definition of marriage on behalf of the states.
However, it can be argued that federalism be seen as becoming stronger because the Congress is not
producing as much legislation as it used to. Bipartisan legislation went down by 30% since 1989. This
,leads to states having to make more laws, even on issues that would traditionally be the place of the
federal government. For example, “Support our Law Enforcement and Neighbourhood Act 2010”
enacted in Arizona aimed to enhance immigration enforcement within the state.
This being said, it would be wrong to say that the US is no longer federal today. Stateʼs retain
significant control over their areas of policy, resulting in significant policy differences and financial
autonomy. This significant state power is importantly protected by the constitution and Supreme
Court, which ensure the US remains federal.
2. Evaluate the view that the US Constitution is effective at limiting government.
The U.S. Constitution, a hallmark of American democracy, has long been revered for its mechanisms
to protect individual rights and maintain a balanced government. The effectiveness of these
mechanisms, however, is subject to debate. While the Constitution's checks and balances, emphasis
on bipartisanship, and the divided government structure are designed to protect against tyranny and
ensure policy compromise, their effectiveness has been both upheld and challenged over time.
One of the Constitution's primary methods for protecting rights and preventing governmental
overreach is the system of checks and balances. This system ensures that no single branch of
government can dominate the others, maintaining a balance of power. For instance, Congress's
power of the purse, which allows it to pass the budget, effectively checked President Biden's spending
on the Inflation Reduction Act. This example highlights how legislative oversight can prevent the
executive branch from unilaterally enacting significant financial policies without congressional
approval. However, the effectiveness of checks and balances has arguably eroded over time.
Presidents have increasingly used executive orders to bypass Congress, thereby exceeding the
intended limits of their powers. The presidential veto is another tool that demonstrates the executive
branch's ability to assert dominance. For example, Trump issued 10 vetoes during his tenure, with
only one being overridden. Similarly, Presidents Bush and Obama issued 12 vetoes each, with only a
few being overturned. The requirement of a supermajority to override a veto makes this check on
presidential power rare and difficult, highlighting a potential imbalance that deviates from the
Founding Fathers' intentions.
The Constitution encourages bipartisanship, aiming to create policies that reflect a compromise
between differing interests, thereby preventing one party from dominating the political agenda. The
War Powers Resolution of 1973 is a prime example, limiting the President's ability to engage in
military actions without congressional approval after 90 days. This resolution was enforced when ten
representatives filed a lawsuit in 2012, and bipartisanship was evident when Congress withheld
approval for Obama to continue military action in Yemen. Despite these safeguards, the President's
strong role in foreign policy often circumvents the intended bipartisan cooperation. Congress has not
formally declared war since Pearl Harbor in 1941, indicating a shift in war powers towards the
executive. Additionally, President Biden received bipartisan support for substantial financial aid to
Ukraine, totaling $26 billion in February 2023, suggesting that executive initiatives can still gain
cross-party backing without significant opposition. Furthermore, Trump’s withdrawal from the Paris
Climate Agreement in 2019 via an executive order underscores the President's ability to unilaterally
influence foreign policy, challenging the notion that bipartisanship effectively limits executive power.
The increase in divided government, where different parties control different branches, is intended to
prevent any single party from pushing through its agenda unchecked. This structure was evident
during the 2019 government shutdown, which highlighted how legislative opposition can stall
executive policies, serving as a check on presidential power. However, the President's informal
powers, such as the power of persuasion described by Richard Neustadt, often circumvent these
checks. For example, in 2017, Trump was able to divert $4 billion in federal taxpayer money to fund
,the border wall by declaring a national emergency. This manoeuvre demonstrated how the executive
can leverage informal powers to achieve policy goals despite legislative opposition. The power of the
veto further supports this dynamic, enabling Presidents to maintain significant control over legislative
outcomes.
The U.S. The Constitution's mechanisms for protecting rights and maintaining a balanced government
have both been upheld and challenged over time. While checks and balances, bipartisanship, and a
divided government structure are designed to prevent tyranny and ensure policy compromise, the
increasing use of executive orders, the dominance of presidential foreign policy, and the reliance on
informal powers suggest that these mechanisms are not as effective as originally intended. Thus,
while the Constitution provides a robust framework for protecting rights, it often fails to ensure a
limited government.
3. Evaluate the view that the amendment process in the US Constitution works.
The amendment process requires a supermajority of Congress, state legislators and the support of
the president making amendments almost impossible to ratify. Best put by key US political
commentator Stanford Levison:” The difficult process not only makes amendments impossible, but it
also silences any talk on key constitutional issues”. An example emphasising this difficulty can be
seen with the fact that over 12000 amendments have been proposed, yet only 27 have been
successful. For example, several amendments have been put forward to change the electoral college
after Bush and Trump both became presidents on a minority of the vote but all have fallen short of the
2/3 majority required to pass congress. Several amendment attempts to change the gun laws took
place but ended up being unsuccessful facing strong opposition from the Republicans. However, the
difficult amendment process was intentionally manufactured by the founding fathers to be difficult.
They did so to protect it from proposed amendments which were in response to short-term trends and
ill-thought-out amendments. In response to the great depression an amendment was proposed to
place a maximum limit on an individual net worth up to $1 million in 1933; and in 1893 an amendment
was proposed to rename the country to the United States of Earth as a Wisconsin representative
predicted the US would take over the world. These examples demonstrate the importance of the
difficult process laid out in Article V to prevent questionable amendments; thus the amendments
process works as intended so the constitution hasn’t strayed too far.
Another reason why the amendment process is more disadvantageous is that it goes against the
concept of majoritarian democracy. Modern democracy is based on the concept of majoritarian
democracy and the supermajorities required to amend the constitution are hence undemocratic.
Proposed amendments such as the flag protection amendment received over 50% of support in
Congress but lacked sufficient support for a supermajority. To block amendments only 13 of 50 states
must oppose it. The Equal Rights amendment passed Congress but fell short by 3 states for securing
enough support. This is an example of the tyranny of the minority as 15 states which represent just
24% of the population were able to prevent an amendment the majority wanted. However, this
argument does have some limitations as the need for supermajorities requires genuine consensus
before the constitution is amended. In a country that is geographically vast and politically and
culturally diverse as the USA, it makes sense that any changes to the constitution have broad
support. Therefore, amendments can only be successful if there is bipartisan agreement at both
national and state levels.
In addition, the process for amending the Constitution is a significant cause for concern as it provides
the Supreme Court with excessive power. The entrenched nature of the Constitution allows unelected
justices to wield unprecedented influence on key issues like human rights, abortion, and gay
marriage. Judges’ rulings can only be overturned by an amendment, giving them the final say and the
power to interpret the Constitution. This power has led to rulings with little basis in the Constitution,
, such as Obergefell v. Hodges, which made gay marriage a constitutional right, despite no mention of it
in the Constituition. Judicial review allows justices to strike down acts and legislation from elected
bodies, as seen in Citizens United v. FEC, which overturned the McCain-Feingold Act passed by an
act of Congress and endorsed by the president at the time.
On the other hand, the amendment process prevents abuse of power. An entrenched constitution
stops a single political party from changing constitutional rules for their benefit. The current process
requires bipartisan support, making it unlikely for one party to have a 2/3 majority in Congress and a
3/4 majority in state legislatures. This ensures that amendments receive high scrutiny and prevents
abuse. For example, President George Bush’s request for a line-item veto power in 2006, which could
undermine Congress’s checks on the executive, was not granted.
4. Evaluate the view that the constitution effectively fulfils its key features.
Federalism - the constitution itself ensures federalism continues to exist. For example, the 10th
amendment gives states all powers that were not given to the federal government. Article I gives the
rights to states to run their own elections. Consequently, states can determine their state’s drinking
age and decide on the election process; whether it be primaries or caucasus. However, the elasticity
of the constitution harmed federalism. The vagueness of the constitution seized upon by the federal
government for enacting certain laws. Article I of the Constitution states that Congress has the power
to make all laws which are ‘necessary and proper’. The clause is also known as the elastic clause as
it allows Congress to stretch its powers. Consequently, the federal government has increasingly
grown in size. For example, the court let the majority of the affordable care act still stand, and
Obamacare still exists.
Separation of powers is another key feature of the US constitution which implies that governmental
powers are divided between three branches of government, all of which can act independently.
Separation of powers with the Supreme Court and the power of judicial review has been key in
preventing tyranny when the president and Congress are dominated by the same party. For example,
under Trump SCOTUS used judicial review to rule his Muslim Ban unconstitutional even though it had
been passed through both Republican-dominated houses. However, this argument is undermined by
the fact that the president has usurped some of Congress’s power. An example of a president
usurping Congress's power by dominating military actions is President Barack Obama's involvement
in Libya in 2011. Obama authorised U.S. military intervention in Libya without seeking explicit
congressional approval, bypassing the War Powers Resolution's requirement for congressional
authorization for military actions lasting more than 60 days; justifying it was the NATO and not the US.
This action demonstrated the executive branch's ability to dominate military decisions, reducing
Congress's intended role in such matters.
The Constitution encourages bipartisanship to create policies that reflect a compromise between
differing interests, preventing one party from dominating the political agenda. The bipartisan
Infrastructure Bill of 2021, which allocated $1 trillion towards infrastructure improvements and passed
with a 69-30 vote, exemplifies successful bipartisanship. The War Powers Resolution of 1973, limiting
the President's ability to engage in military actions without congressional approval, was enforced
when Congress showed bipartisan disapproval of Trump's intervention in Yemen. However, the US
system has become more polarised and seems more divided than ever. This is proven by the fact that
there have been three government shutdowns in the last six years; with the most recent one being
Trump’s government shutdown over funds for the US border wall in 2019. The two main parties are
dramatically divided on the key areas like the war in Ukraine and gun laws.
The Constitution's system of checks and balances remains effective in preventing abuse of power,
particularly through mechanisms like Congress's power of the purse. This was evident in the
negotiations and revisions of President Biden's Build Back Better plan and the Inflation Reduction Act,
