A2 Government & Politics Unit:4a, Topic:1 (US Constitution)

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Framework

  • Constitution was written for 13 states and 3 million people 
  • Now being used for 50 states and over 310 million people 
  • Seven articles of over 7,000 words 
  • Oldest written constitution 
  • Authoritative set of rules 
  • Seeks to establish the role, powers and functions of the institutions of gov't 

Why is it so important? 

  • Supreme law of the USA - Fundamental law 
  • Source of, but also a limitation, on gov't
  • Provides gov't to have enough power to be strong and effective, while protecting individual liberties against abuse of power 
  • Balances the need for strong fed gov't with the need to give autonomy to the states in a federal system 
  • Codified - single document and entrenched 
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Key Principles

  • Representative and accountable gov't - fixed-term elections held every 4 years - for the pres and every 2 years for the House, (Senate not directly elected until 1913) 
  • Separation of powers - separated through the first three articles 
  • Federal structure - power divided 
  • Limited gov't - inalienable and entrenched rights in the Bill of Rights 1791 
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Separation of powers

  • Adopted from the writings of Montesquieu 
  • In order to avoid tyranny and to protect liberty 
  • Implies the independence of branches of gov't 
  • No overlap e.g. Obama had to give up senate seat to become president 
  • Also implies independence - checks and balances 
  • 'Ambition will be used to counteract ambition' - Madison 
  • 'Separate institutions sharing powers" - Neustadt 
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Checks and balances

  • Congress has leg power but this is checks by the pres veto 
  • Pre veto is checked by use of a congressional override with 2/3 maj. in Congress 
  • Supreme Court can decide that laws (and actions) are unconstitutional in its power of judicial review found in Marbury v Madison 1803 
  • Pres is the commander-in-chief of the armed forces but only Congress can declare and fund war - last time 1941 
  • Pres appointments need to be confirmed and pres treaties ratified with the 'advice and consent' powers of the Senate 
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Criticisms

  • System offers an "invitation to struggle" 
  • Recipe for institutional gridlock 
  • Dysfunctional power struggles between the branches 
  • Particularly the case with divided gov't 
  • Different party control promoted by staggered elections 
  • Avoidance of concentrated power - led to weak gov't? 
  • Difficulty to reach consensus on controversial cases led to problems - e.g. denial of civil rights movements in the 1950s 
  • For this system to work - gov't MUST work cooperatively, with negotiation, bergaining and compromise to achieve goals and solutions 
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Constitutional change

How can it be amended? 

  • 2/3 maj in both houses then 3/4 of all states - Article V 

Amendments: 

  • Am. IX - reserved rights 
  • 27 amends. in Bill of Rights 1791 
  • Am. X - state's rights 
  • Amend XIII - 1919 ban on alcohol - repealed by am. XXII 

Constitution hailed genius by Ruth Bader-Ginsburg

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Supreme Court interpretation

  • "We live udner a Constitution, but the Constitution is what the judges say it is" - SC power
  • Vague - open to interpretation 
  • e.g. VIII amend. "cruel and unusual" punishment - the death sentence? 
  • Judicial interpretation! 
  • More flexible and less rigid than originally thought 
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Strengths of the constitution

  • Sovereignty - free from interference 
  • Provides a check on power 
  • Individual liberties are entrenched 
  • Flexibility to be amended 
  • Provisions are safeguarded by the independent SC 
  • No pressure for change from the American people 
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Weaknesses

  • More rigid than UK 
  • Difficult to amend despite changing situations e.g. II amend. bear arms - protected by the right-wing 
  • Growth of constitutional rights and states' rights can be seen as not fully protected due to power of the exec increasing 
  • Can cause dysfunctional gridlock 

Yet remains the "political bible" of the USA 

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Federalism

  • Sometimes called dual sovereignty 
  • Each state has its own gov't, a State Constitution, a State Governor, a bicameral State House and Senate legislature, a Sate Supreme Court (judiciary) 
  • Federalism escapes "the danger of too much power in too few hands" - Madison 
  • Federalism maintains national unity - while preserving state diversity 
  • YET Americans are subject to two sets of laws - can be confusing 
  • No mention of the word federalism in the constitution 
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Phases of federalism

  • Co-operative federalism (Marble Cake) - Different levels of gov't interact co-operatively and soley to solve common problems rather than make policies separately 20s-60s
  • Centralised federalism (pineapple upside-down cake) - Federal gov't at the centre Imperial presidency, 60s - 80s 
  • Competitive federalism (crumble cake) - 80s-present. Competition between levels of gov't 
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Advantages of federalism

  • Additional checks and balances
  • Allows for diversity and traditions from 50 states to be reflected 
  • Opportunities for citizens to be politically involved 
  • States can be training grounds for national leadership 
  • Can be used for experiments - e.g. caps on carbon emissions in NY and California
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Disadvantages

  • Can cause gridlock 
  • Variety of state laws on e.g. abortion, gun ownership and the death penalty can cause confusion and a lack of cohesion in the country 
  • Significant economic inequalities between states 
  • Too many elections? too democratic? 
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Rights

Bill of Rights (1791) - (Important examples of rights)

  • 1st - rights to freedom of religion, the press, speech and assembly 
  • 2nd - bear arms 
  • 8th - cruel and unusual punishment 
  • 10th - reserved states' rights 

Other: 

  • Clear strong 'rights culture' in America - people know their rights 
  • Patriot Act - anti-terrorism measures after 9/11 
  • Existence of Guantanamo Bay - prisoners were detained without habeas corpus rights as a result of the 9/11 aftermath war on terror 
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