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34 Cards in this Set
- Front
- Back
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Background to the Constitution |
. In 1776, the 13 colonies on the eastern seaboard of North America declared their independence from Great Britain in the Declaration of Independence . Fromm 1776-83, there followed the War of Independence between the former colonies and Great Britain . In 1781, the newly independent colonies decided to establish a confederacy (a loose asssociation of states in which almost all political power rests with the individual states) by the Articles of Confederation . In 1787, because the confederacy had proved a disaster with insufficient power for the national government, the Philadelphia Convention convened to draw up a new constitution . This involved making a whole number of compromises in terms of the allocation of national government power and state government power |
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Compromises of the Constitution - The form of government |
. Under British control, the colonies had been ruled under a unitary form of government - A unitary form of government is one in which political power rests with one central/national government (of Great Britain in this case) . From 1781, they had been ruled by a confederal form of government - A confederal form of government is one in which virtually all political power rests with the individual states and little with the central/national govenrment . The compromise was to devise a new form of government - a federal form of government . A federal form of government is one in which some political power rests with the national (or federal) government but other, equally important, powers rest with the state governments |
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Compromises of the Constitution - Representation of the states |
. Large-population states wanted representation in Congress to be proportional to population - the bigger the population of a state, the more representatives it would have in the new Congress . Small-population states wanted equal representation . The compromise was to have a Congress made up of two houses - the House of Representatives and the Senate . In the House of Representatives, there would be representation proportional to population . In the Senate, there would be equal representation for all states, regardless of population |
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Compromises of the Constitution - Choosing of the president |
. There were many different suggestions about hwo to choose the president . Some thought the president should be appointed . Others thought the president should be directly elected by the people . The compromise was to have the president indirectly elected by an Electoral College . The people would elect the Electoral College and the Electors within the Electoral College would choose the president |
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A codified constitution 1 |
. The new Constitution was to be a codified constitution - This would be in sharp contrast to Great Britain's largely unwritten and entirely uncodified constitution . The new Constitution would enumerate certain powers that the national (federal) government would possess and leave all other powers to the states or the people . It would also contain a deliberately complicated and demanding amendment process . Amendments to the Constitution were permitted, but only if they were overwhelmingly desired by both the federal and the state governments |
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A codified constitution 2 |
. But although the US Constitution is codified, there are phrases within it which were written deliberately vaguely and which have 'evolved' over the subsequent decades and centuries - e.g. the Constitution allows Congress: . 'to provide for the common defence and general welfare of the United States' . 'to make all laws which shall be necessary and proper for carrying into execution the foregoing powers . These two clauses (known as the 'general welfare clause' and the 'necessary and proper clause') have allowed the powers of the federal government to expand significantly over time . The Constitution has also changed significantly since the late 18th century by virtue of: . formal amendment - e.g. permitting a federal income tax (16th Amendment, 1913) . interpretative amendment - by the Supreme Court's power of judicial review |
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A codified constitution 3 |
. However, not everything to do with US government and politics is in the Constitution - There is nothing in the Constitution about: . Presidential primaries . Congressional committees . The president's cabinet . The Executive Office of the President . The Supreme Court's power of judicial review |
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Principles of the Constitution - overview |
. The Constitution can be said to be based on three principles - separation of powers; checks and balances; the federal division of powers . The first two must be understood together as the last one is a corollary of the others |
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Principles of the Constitution - Separation of powers 1 |
. The Constitution drawn up at the Philadelphia Convention in 1787 divided the national government into three branches based on what is known as the doctrine of separation of powers . The three branches of government are: . The legislatuere - Congress, which makes the laws . The executive - headed by the president, which carries out the laws . The judiciary - headed by the Supreme Court, which enforces and interprets the laws The idea of the Founding Fathers was that these three branches would: . be independent yet co-equal . be separate in terms of personnel . operate checks and balances on each other . promote the much desired concept of limited government - as Thomas Jefferson put it: 'that government is best which governs least' |
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Principles of the Constitution - Separation of powers 2 |
. The framers of the Constitution believed that only by these kinds of institutional structure would tyranny be avoided . It was in their view of vital importance that law making, law executing and law enforcing be carried out by three independent yet co-equal bodies whose personnel was entirely separate . Thus it was introduced what might be called the separation of personnel - that the three branches of government shuld be separately manned; that no person be permitted to be a member of more than one brach at any one time . Hence why in January 2009, Barack Obama resigned from the Senate to become president . And why in 2010 when the US Solicitor General Elena Kagan was appointed to the Supreme Court, she resigned from the executive |
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Principles of the Constitution - Checks and balances |
. But the functions of these three branches are not completely separate - It is not the powers that are separate but the institutions . As Richard Neustadt has states - 'The Constitutional Convention of 1787 is supposed to have created a government of "separated powers". It did nothing of the sort. Rather, it created a government of separated institutions sharing powers' . So the theory is more accurately described as a theory of shared powers than 'separated powers' . The institutions (the Congress, the presidency and the courts) are indeed separate . The personnel of these three branches are separate but their powers are shared . This sharing of power is what we call checks and balances |
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Checks by the legislature - On the judiciary |
. Senate's power to confirm appointments made by the president . Initiate constitutional amendments . Impeachment, trial, conviction and removal from office of any member of the judiciary |
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Checks by the executive - On the legislature |
. Recommend legislation . Veto legislation . Call Congress into special session |
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Checks by the legislature - On the judiciary |
. Appointment of judges . Pardon |
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Principles of the Constitution - Federal division of powers 1 |
. Federalism involves a certain level of decentralisation . It is a compromise between a centralised form of govenrment on the one hand and a loose confederation of independent states on the other - In other words, it is a compromise between the two experiences America had before 1787; government by Great Britain and government by the Articles of Confederation . It is an appropriate form of government for a country as large and diverse as the USA - It allows for national unity as well as regional and local diversity . Nowhere are the words 'federal' or 'federalism' to be found in the American Constitution - it is written into the Constitution by: . Articles I, II and III, which lay out the powers of the national government . The 10th Amendment, which guarantees that all the remaining powers 'are reserved to the states and to the people' |
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Principles of the Constitution - Federal division of powers 2 |
. What the Constitution does is to: . Give certain exclusive powers to the national (federal) government - Only the national government can, for example, coin money, negotiate treaties, tax imports and exports, or maintain troops in peacetime . Give guarantees of states' rights - e.g. the states are guaranteed equal representation in the Senate, that their borders will not be changed without their consent and that the Constitution cannot be amended without the agreement of three-quarters of them . Make clear that there are also states' responsibilities - Each state must recognise the laws of each other state by, for example, returning fugitives . All this the Constitution did - But what it failed to do (and wisely so) was to lay down any definite line between the concurrent powers of the national and state governments . This means that the concept of federalism has been able to develop over the subsequent two centuries |
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Development of federalism 1 |
. Federalism, therefore, is not a fixed concept; it is ever changing - As America has changed, so has the concept of federalism . The most significant changes that have occurred in the USA since 1787 and have led to the development and evolution fo federalism are: . westward expansion . the growth in population . industrialisation . improvements in communication - by road, rail, air , post, telephone, radio, television, e-mail etc . America's foreign policy role and world-power status |
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Development of federalism 2 |
. During the latter part of the 19th century and the first two-thirds of the 20th century, all these five factors led to an increased role for the federal government and a decline in the power of state governments . But during the final third of the 20th century, there was a distinct move in the opposite direction as Americans wanted to see more power and more decisions devolved to the states wherever this was possible . As a result of polciies pursued by administrations of both parties (though especially Republicans) over the last 40 years, the states have seen quite a significant increase in their autonomy and power . Decentralisation and states' rights are once again the buzzwords in American politics |
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Federalism under George W. Bush 1 |
. You would expect a Republican president ot be keen on decentralisation and giving more power to the state governments . You would certainly expect that of a Republican president who had been governor of Texas for 6 years before entering the White House - but that wasn't what happened . During the presidency of George W. Bush (2001-09), federal government spendign grew at a rate not seen since the days of President Johnson in the 1960s - and he as a Democrat . Whereas former Republican presidents had arrived in Washington determined ot cut federal government bureaucracy, Geroge W. Bush expanded it . There are five particular reasosn for thsi expansion of the federal government under George W. Bush: . the war in Iraw . homeland security issues following the attacks on the USA on 9/11 (2001) . the expansion of the Medicare programme . the No Child Left Behind Act passed by Congress (2001) . the Wall Street and banking collapse (2008) |
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Federalism under George W. Bush 1 |
. You would expect a Republican president ot be keen on decentralisation and giving more power to the state governments . You would certainly expect that of a Republican president who had been governor of Texas for 6 years before entering the White House - but that wasn't what happened . During the presidency of George W. Bush (2001-09), federal government spendign grew at a rate not seen since the days of President Johnson in the 1960s - and he as a Democrat . Whereas former Republican presidents had arrived in Washington determined ot cut federal government bureaucracy, Geroge W. Bush expanded it
. There are five particular reasosn for thsi expansion of the federal government under George W. Bush: . the war in Iraw . homeland security issues following the attacks on the USA on 9/11 (2001) . the expansion of the Medicare programme . the No Child Left Behind Act passed by Congress (2001) . the Wall Street and banking collapse (2008) |
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Federalism under George W. Bush 2 |
. Not all Republicans agreed with Bush's huge expansion of federal government spending - Even some of his own party derided such programmes as 'big-government conservatism' . Bush was widely criticised by many conservative Republicans for not vetoingh expensive federal government programmes . He failed to use a single veto during his entire first term (2001-05), the first president to do so since Martin Van Buren (1837-41) . Bush was also criticised for what many saw as the federal government's somewhat feeble initial response to the devastation caused by Hurricane Katrina in 2005 |
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Federalism under George W. Bush 3 |
. Finally, when in 2008 the Bush White House authorised the secretary of the treasury, Henry Paulson, to take control of two troubled, privately owned but government-sponsored mortgage companies, there was more criticism heaped on Bush - by conservative Republicans in particular . This was followed by a Bush White House-sponsored $700 billion 'bail-out' package for Wall Street to alleviate the effects of the credit crunch - The legislation was passed through Congress but with mainly Democrat votes . In 1996, Bill Clinton commented that the era of big government was over - By the end of the George W. Bush administration, it was clear that it was back |
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Federalism under Barack Obama 1 |
. Whereas the Bush administration concentrated mainly on war and terrorism, the Obama White House was much more focused on domestic policy as a way of delivering his 'change' agenda . This had a profound effect on the relationship between Washington and the states . War and security against terrorism are conducted exclusively by the federal government; domestic policy is increasingly the domain of the states . Thus under the Obama administration, trends in federalism are: . The ratio of state and local government employees to federal employees is the highest since before Roosevelt's New Deal in the 1930s . Federal government assistance to the states increased from 3.7% of gross domestic product (GDP) in 2008 t 4.6% of GDP in 2009 . Money from the federal government accounted for 30% of state government spending in 2009 compared with 25% in 2008 . Of the $787 billion of the 2009 Economic Stimulus Package, one-third went to or through the state governments - (Under Bush's 2003 stimulus package, just $20 billion went to the states |
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Federalism under Barack Obama 2 |
. There are a number of reasosn for the increase in federal money to the states under the Obama administraion: . The re-authorisation of the State Children's Health Insurance Program (SCHIP) (2009) . The expansion of Medicaid under Obama's healthcare reform legislation . Higher education expenditure - e.g. Pell Grants, 2010 . $4.35 billion invested in the Race to the Top programme to boost education in the states
. Obama came in for a good deal of criticism for his view of federalism . Many Republicans saw the passsage of the healthcare reform legislation as 'the end of federalism' and there were those in the Tea Paarty movement who thought Obama as more of a socialist than a federalist . In exit polls at the 2010 mid-term elections, 74% of Republicans and 60% of independents agreed with the statement that 'the federal government is doing too many things better left to business and individuals' |
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The consequences of federalism |
. Variation in state laws concernign such matters as the age at which one can drive a car and must attend school . Variation in penalties for law breaking from state to state . Complexity of the American legal system, having both national and state courts . Each state having not only its own laws and courts but also its own Constitution . Complexity of the tax system; income tax (federal and state); state property taxes; local sales taxes . State-based elections, run largely under state law . The frequency and number of elections . Political parties being decentralised and largely state based . Regional diversity and regional considerations when making appointments to e.g. the cabinet, or hwen 'balancing the ticket' in the presidential election |
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Constitutional framework - Constitution in outline 1 |
. The Constitution today is made up of the orgininal seven articles plus 27 amendments, 10 of which were added almost immediatelty . Of the original seven articles, the first three are the most important: . Article I - the legislature, including the powers of Congress . Article II - the executive, including the powers of the president . Article III - the judiciary |
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Constitutional framework - Constitution in outline 2 |
. The first ten amendments, added in 1791, are known collectively as the Bill of Rights, as they enumerate fundamental rights and freedoms - The most significant are: . 1st - freedom of religion, speech and the press, and the right to peaceful assembly . 2nd - right to keep and bear arms . 4th - freedom from unreasonable searches . 5th - rights of accused persons (including the 'due process' clause) . 8th - freedom from cruel and unusual punishments . 10th - rights reserved to the states and to the people |
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Constitutional framework - Constitution in outline 3 |
. Since 1791, just 17 further amendments have been added - two of these (the 18th and 21st) cancel each other out . The 18th introduced the prohibition of alcohol (1919) and the 21st repealed that amendment (1933) . Of the remaining 15 amendments, the following are the most significant: . 14th - guarantees of 'equal protection' and 'due process' applied to all states . 16th - Congress given power to tax income . 17th - direct election of senators . 22nd - two-term limit for president . 25th - presidential disability and succession |
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How is the Constitution formally amended? |
. This is a two-stage process involving proposal and ratification . Proposals to amend the Constitution can be made either by Congress with a two-thirds majority in favour in both houses or by a national Constitutional Convention called at the request of two-thirds of the state legislatures - (The latter has never been used) . Ratification can be made either by three-quarters of the state legislatures or by three-quarters of the states holding a Constitutional Convention - (The latter has only been used once, to ratify the 21st Amendment in 1933) . Six amendments have been proposed by Congress but failed at the ratification stage, the most recent one being one to guarantee equal rights for women, proposed by COngress in 1972 but ratified by only 35 states (three short of three-quarters) . Many amendments have failed at the proposal stage - e.g. : . to require the federal government to pass a balanced budget . impose term limits on members of Congress . forbid desecration of the American flag |
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Why is the Constitution rarely amended? |
. The Founding Fathers created a deliberately difficult amendment process . The vagueness of the Constitution has allowed the document to evolve without the need for constant formal amendment . The Supreme Court's power of judicial review allows the Court to amend the meaning of the Constitution while the owrds remain largely unaltered . The reverence with which the Constitution is regarded makes many politicians cautious of tampering with it . The 18th Amendment, regarding the prohibition of alcohol, was repealed (by the 21st Amendment) just 14 years later |
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Constitutional rights 1 |
. The Constitution guarantees certain fundamental rights - These constitutional rights can be thought of in two categories: freedom of or to, and freedom from . In order for these rights to be effective, the government (be it federal, state or local) must take steps to ensure that the rights are effectively protected . When it coomes to the federal government, all three branches of government need to be involved . Congress can pass laws to facilitate these rights - laws that enhance the rights of, e.g. racial minorities . It can also, through its committee system and investigative powers, call the executive branch to accoutn regarding the way it implemnts the laws the Congress has passed . The executive branch needs to implements the laws and programmes which Congrss passes and establishes in order to ensure that legislation is followed by delivery . The Supreme Court has an important role in safeguarding the constitutional rights of citizens through its power of judicial review |
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Constitutional rights 2 |
. Of these three branches of government, it is the judiciary (and in the end the Supreme Court) that plays the most vital role in trying to guarantee the effectiveness of citizens' constitutional rights . There have clearly been times when the Court has been ineffective in guaranteeing these rights - e.g. : . The Court's 1857 decision in Dred Scott v. Sandford, which stated that blacks could not become citizens of the United States and therefore were not entitled to the rights of citizenship . The Court's 1896 decision in Plessy v. Ferguson, which upheld segregation of the races on public transport (and by implication in other areas of public life) on the basis of 'separate but equal' |
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Constitutional rights 3 |
. There are numerous modern-day examples of the Court upholding constitutional rights - e.g. . Abortion rights for women (Roe v. Wade) . Rights of arrested persons (Miranda v. Arizona and Dickerson v. United States (2000)) . Rights of racial minorities (Brown v. Board of Education of Topeka) . Gun rights (District of Columbia v. Heller) . There are, however, two sides to this - Some would say, for example, that by guaranteeing abortion rights for women, the Court failed to protect the rights of the unborn child . That by interpreting the 2nd Amendment to guarantee an individual's right to own guns, the Court failed to protect other citizens from gun crime and violence . That by upholding the so-called 'separation of church and state' and banning prayers in public schools, the Court failed to uphold citizens' 1st Amendment right to 'the free exercise' of religion |
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Constitutional rights 4 |
. Yet another line of argument would be that, having once safegauarded a right, the Court may at a later date back-track on this - e.g. . The Court's 2003 decision in Gratz v. Bollinger, which declared the University of Michigan's affirmative action-based admissions programme to be unconstitutional . The Court's 2007 decision in Gonzales v. Carhart, which banned a certain abortion procedure, having upheld it in 2000 |
