10 mark Questions/Answers (US Constitution)

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Examine the amendment process of the Constitution

  • Amendment process for the US Constitution is difficult; done so deliberately by the Founding Fathers; didn't want the constitution to be changed easily as they had just won their independence from monarchical rule.
  • Therefore, the US has only had 17 amendments to its constitution since the Bill of Rights was introduced (a collective 10 amendments) since 1791. Amendments usually have to be in high popular demand for them to be successful, but this is not always the case (e.g. 18th Amendment for prohibition was not overly popular).
  • Procedures for amendment are outlined in Article IV of the Constitution.
  • Amendments are proposed either by Congress (with a 2/3rds majority needed in both houses) or by a National Constitutional Convention (called by at least 2/3rds of states, though this has never yet been used).
  • Amendments are ratified either by state legislatures (3/4 must vote to ratify, often with a stated time limit) or by State Constitutional Convention (in which 3/4 states must hold conventions and vote to ratify - used only once in 1933 to ratify the 21st Amendment).
  • 6 Amendments have been proposed by Congress but failed at ratification stage; e.g. Equal Rights Act of 1972 was 3 states short of ratification, and so expired in 1982.
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Explain the concept of fundamental law.

  • Fundamental law describes the very basis of government and is law placed high above any other laws made by the legislature. In the US it is synonymous with the Constitution, codified in a single document.
  • The US Constitution is the second incarnation of fundamental law, with the first one being the Articles of Confederation (established in 1781). 
  • The Constitution itself establishes where authority resides in terms of political institutions, describes the relationships between them and establishes the rights of citizens. It also determined how amendments are to be made.
  • Fundamental law, through the Constitution, is regarded as being superior to the political institutions of the state as the actions of both the legislature and the executive are regulated by the Constitution; for example, the actions of the President can be declared unconstitutional by the Supreme Court (e.g. President Nixon was impeached) and acts of Congress can also be struck down. This is because the Constitution is paramount to alll branches of government, including even their legislative representatives.
  • But fundamental law can be changed through constitutional amendment, though this is difficult to achieve in terms of the US Constitution because it requires a 2/3rds majority in Congress. 
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Consider the importance of the Bill of Rights

  • The Bill of Rights refers to the first 10 Amendments made to the US Constitution, which were collectively ratified in 1791. They were designed to protect individual liberties; for example, the 1st Amendment guaranteed freedom of speech, religion, press and assembly, the 2nd Amendments guaranteed the right to bear arms, the 4th Amendment guarded against unreasonable searches and seizures, and the 10th Amendment outlined powers reserved to the states and the people.
  • The Bill of Rights are important because they are a fundamental part of the Constitution and are therefore difficult to change through amendment (2/3rds majority needed in both houses of Congress). They are therefore entrenched and so they protect against abuse from political institutions.
  • This is different to the UK constitution in which rights are not entrenched and amendments can be made through simple Acts of Parliament. because the constitution is uncodified.
  • The rights in the US are upheld by the Supreme Court (e.g. Heller vs District of Columbia, in which the Court upheld the right for a citizen to bear arms, as outlined in thr 2nd Amendment). 
  • BUT there are cases where the Bill of Rights is perhaps ineffective in performing its function of protecting citizens; there is much controversy over the 2nd Amendment, and though the 8th Amendment prohibits cruel and unusual punishment it does not outline what this would be. Therefore the Supreme Court could be said to have a more important role in interpreting these rights.
  • Also, the Bill of Rights is not the sole source of rights and freedoms within the Constitution (e.g. 13th Amendment).
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Explain the concept of constitutional sovereignty.

  • Constitutional sovereignty in the US is the concept that the Constitution is the supreme source of law and is the source of all government powers. It is empowered with the sovereign authority of the people and the consent of the legislatures of the states, and as such it provides limitations on the government that protects the fundamental rights of citizens.
  • Therefore, in the US, no single political institution posesses sovereignty - this lies soley with the Constitution, meaning that the Constitution occupies the ultimate place in the political system. Contrast to the UK Constitution which has parliamentary sovereignty.
  • However, the Constitution itself appears to imply the notion of popular sovereignty - states that "we the people", suggesting that real supremacy lies with the people of the US. In this respect, the Constitution becomes the guarantor of the will of the people.
  • Some therefore argue that sovereignty should lie in the states, rather than the federal government. Realistically there is shared or dual sovereignty between the states and the government.
  • Therefore there is some ambiguity regarding exactly where sovereignty realistically resides but it is largely accepted in the US that the Constitution is supreme. 
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Explain the concept of separation of powers.

  • Separation of powers is a concept outlined by the US Constitution, which provides for the separation of the executive (the government/president) from the legislature (Congress) and the judiciary (Supreme Court).
  • Political power is therefore distributed among 3 branches of government, acting both independently and interdependently. The legislature makes laws, the executive carries out laws and the judiciary enforces laws.
  • Separation of powers exists because the Founding Fathers wanted limited government which would only do what was absolutely essential, leaving citizens fundamental rights and freedoms untouched to prevent tyranny (monarchical rule under Britain meant they wanted to avoid tyranny or an over-powerful executive). Therefore, due to separation of powers, checks and balances can be carried out effectively due to little overlap of the branches. BUT this could also leas to gridlock, and vetoes can also be an issue as a result of separation of powers.
  • Separation of powers is upheld, for example, through the separation of personnel; e.g. in 2008 Obama had to resign his seat in the Senate before he could run for President (different in the UK - PM can still be an MP).
  • However, in reality, personnel are separate but powers are shared (e.g. through checks and balances). 
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Explain the concept of federalism in the USA.

  • Federalism is a form of government in which a Constitution distributes powers between a central government and sub-divisional (state) governments.It serves as another check-and-balance and was outlined in the 10th Amendment.
  • This has existed in the US since 1787 as power is divided between the federal government controlled from Washington DC and state governments (e.g. each state has 2 Senators to represent them), which have control over standards of education, transport regulations and gun laws, to name a few. 
  • Advantages of federalism is that it suits a large country with a diverse population (such as the USA) and local governemnt can handle local issues and therefore protect individuals from overbearing government power.
  • Disadvantages of federalism are that national unity is difficult to achieve (as it can permit economic inequality, for example), and law and justice can be uneven as state governments can resist national policies. 
  • There have been different types of federalism in the US; dual federalism lasted from 1780-1920 when there was a large focus on states rights and federal governement was limited to money, war and peacekeeping (also known as layer-cake federalism as divisions were clear-cut); cooperative federalism existed from the 1930's to the 1960's and there was greater federal control as seen through the increase in new departments created under these Democratic presidents (also known as marble cake federalism); and new federalism, which exists today and involves a shift back to state power (though Obama, for example, did deliver big government in terms of introducing Obamacare and the 'No Child Left Behind' progamme). 
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Explain the principle of limited government.

  • Limited government was a principle that the Founding Fathers wanted enshrined in the US Constitution by which the federal government is limited by the people and the state governments. This was done to prevent an overpowerful/tyrannical government; therefore, sovereignty rests with the people, not the government. The principle was also established in the 1776 Declaration of Independence.
  • Limited government is ensured through safegaurds in the separation of powers, checks and balances and federalism. It is also ensured through entrenchment and the complex amendment process to the US Constitution, through the principle of electoral accountability (in fixed elections) and through the Bill of Rights, in which the limits of federal authority are established in the 9th and 10th Amendments.
  • The written Constitution of the US delivers a more limited government that the UK's uncodified constitution. 
  • However, the US government has challenged the concept of limited government over time; the executive branch has expanded and changes have been made to federalism, and the power of the Supreme Court has increased.
  • Therefore there have been demands to return to the ideals of small government and close down certain government departments - mostly from conservatives.
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