The Declaration of Independance was set up in 1776 after the War of Independance from Britain. The Articles of Confederation were ratified which set up a confederacy. However this system was weak and so the Philadelphia Convention was set up to strengthen the system of government but instead the Constitution was designed by the Founding Fathers. The FF had two main issues:
- creating a political system that remained faithful to the central idea of the Declaration of Independance (that the political system could not be used to build excessive power) while at the same time ensuring that government had enough power to run the country effectively.
- satisfying concerns that a more powerful central government might become an instrument of the states with the largest populations.
Small states feared they would be ignored if representation was based on population, however large states believed they deserved more of a voice. Therefore after the Connecticut Compromise, the bicameral legislature each state would be equally represented in the Senate with two delegates while the House would be based upon population.The Constitution was signed in 1787.
Federalists v Anti-Federalists
- The FF who believed that the highest priority was providing the central government with adequate powers and wanted a strong central government.
- The FF who believed that the highest priority was protecting the people from central government power and wanted a strong state government to protect state autonomy.
Both agreed that the central government needed more power and there had to be safeguards. Federalists advocated a significant increase in power, with limited safeguards, while the anti-feds wanted any increases in power to be kept to a minimum with stringent safeguards therefore the Senate was created.
The Feds achieved more of their aim then their opponents at the convention however during the ratification some of the anti-feds aims were achieved.
1-7 Articles of the Constitution
- Article 1- All legislative powers are given to Congress. (House and Senate)
- Article 2- The executive power is given to the president
- Article 3- The judicial power is to be given to the Supreme Court
- Article 4-Federal and state-state relationships
- Article 5-Amendment process
- Article 6- Supremecy clause
- Article 7- Ratification procedure of the Constitution
Article 1, Section 8- Congress was given specific powers such as those to 'lay and collect taxes' 'coin money' and 'declare war.'
Powers of the Federal government- Congress
Federal government consists of the three branches- Congress, presidency and SC.
Article 1 covers the legislature. It is the main policy making body of the government.
Congress was specifically prohibited from passing certain types of laws such as ex post fact laws. On the other hand the Constitution controversially included the 'elastic clause' providing Congress with the power to pass any 'necessary and proper' law to fufill its roles.
Powers of the federal government-the presidency
Article 2 covers the executive. The Constituion requires the president to make an annual 'State of the Union Address'. However most of Article 2 is devoted to powers to be used by the president in order to implement the laws that Congress was expected to devise and pass. These include being commander in chief and appointing heads of government departments and ambassadors.
Where the constitution gives the exectutive branch specific responsibility for taking the initiative such as choosing federal judges, approval of the Senate is required.
Article 3 covers the judiciary. It did not address how the Constitution was to be interpreted.
Safeguards on federal government
- Federalism-FF wanted to ensure that the individual states would take responsibility for all policy areas apart from those clearly awarded to the federal government.- decisions are made locally.
- Separation of powers
- Bicameralism-Congress is made up of two houses which would work together but have distinct responsibilities and powers.
- Checks and balances-each branch has checks and balances on the other branches to introduce competition and rivalry to reduce likelihood of an abuse of power.
- Constitutional amendment- difficult for an amendment to pass only if there was an overwhelming agreement.
These safeguards were not sufficient for all anti-feds. Most importantly, they campaigned hard for states to reject the constitution unless a Bill of Rights was included.
Faction reducing measures
The FF were concerned that circumstances could arise that would lead to one section of society(a faction/ political party) gaining dominance of both elected branches of government and then use their power to appoint supporters to the SC. If this happened the safeguards could become meaningless. The FF put into place a variety of measures to avoid this outcome:
- Staggered terms of office- House serve 2 years, president serves 4, senators 6;
- Indirect elections
- Fixed election dates
Amending the Constitution
There are two ways the Constitution can be amended(only the first one has been used)
- A proposed amendment is introduced to Congress;both houses of Congress support the amendment but a two third majority; three quarters of the state legislatures vote to support the amendment; it becomes part of the Constitution.
- 3/4 of states pass a resolution calling for a convention than can then amend the Constitution in the same way as the Philadelphia Convention 1787.
Since the adoption of the Bill of Rights 1791, only a further 17 amendments have been added. These can be roughly divided into four categories:
- amendments that overturn SC decisions such as the 11th and 16th
- the 'civil rights' amendments(13th,14th,15th) and 24th which abolished the practice that was used to deny african americans the vote.
- amendments that affect the way the government works such as the 22nd amendment which limits the president to two terms. 19th which gave the vote to women, 26th lowered the voting age to 18
- the two prohibition amendments, 18th which prohibited sale of alcohol and 21st which reversed it.
Scalia criticises loose constructionalists by saying that the Constitution is being interpreted and it shouldn't be. As making decisions that are popular with the majority and to suit the everchanging morals and beliefs, it is not doing what it was created to do; lay out the democratic framework and set out the balance of power between the branches of government and the limitations. He argues that it wasn't designed to be shaped to suit the citizens but provide stability during adverse times.
Judicial restraint is arriving at a decision by obeying a set of rules/precedent rather than moral or philosophical standards. Judical restraint is not opening up words or phrases to be given different meanings in different cases. By applying judicial restraint judges are able to build up a case history and judge further similar cases and come to a suitable conclusion. Judicial restraint produces predictability in the law.
Why has the Constitution been amended so rarely?
- Of those 11,000+ proposed amendments, only 27 have been approved by Congress and ratified by the states.
- The FF deliberately created a difficult process. The need for both Congress and the states to agree, and the need for super majorities, make the amendment process difficult. Hundreds of amendments have been initiated but very few are successful.
- The FF created a document that was deliberately unspecific. This has allowed the document to evolve without the need for formal amendment.
- The most important reason, the SC's power of judicial review. This power allows the court to interpret the Constitution and in effect change the meaning of words to make 'interpretative amendments' rather than formal amendments. eg the courts can state what "cruel and unusual punishment" means today.
- Americans have become cautious of tampering with their Constitution. They got themselves into difficulty by amending the Constitution to prohibit alcohol then repealing this amendment. This was an important lesson for the future generations.
eg 2006- The marriage protection amendment did not recieve the two thirds majority. Desecration of the American flag amendment received a 66-34 vote just one vote short required of the two thirds majority in 2006.
Separation of Powers-Montesquieu
A theory of government where political power is distributed among three branches of government acting both independently and interdependently.
A government's role is to 'protect individual rights' but governments have historically been the major violators of these rights. So a number of measures have been derived to reduce this likelihood. The concept of Separation of Powers is one such measure.
SOP- when a single person/group has a large amount of power, they can become dangerous to citizens. SOP is a method of removing the amount of power in any group's hands, making it more difficult to abuse.
Summary of the Constitution-Congress
- to pass federal laws
- to scrutinise the work of the executive branch
- to alter the number of judges in SC and set up other federal courts
- to represent the interests of the voters
- federalism-intended to limit the powers exercised by the government
- bicameralism-with each chamber responsible for checking the other
- certain types of law specifially prohibited by the Constitution, such as ex post facto laws
- legislation can be vetoed by the president
- Fixed election dates and staggered elections to limit the ability to work with other politicians elected to federal positions to expand their powers.
Summary of the Constitution-presidency
- to make the State of the Union Address-providing an opportunity to make policy proposals
- to veto federal legislation
- to make appointments to executive departments and courts
- to negotiate and agree treaties
- to act as commander-in-chief of the armed forces
- legislation,if vetoed by the president, can still become law with a vote of two thirds of both houses of Congress
- all appointments must be confirmed by a majority vote in the senate
- all treaties must be ratified by a two thirds vote in the Senate
- only Congress is permitted to formally declare war
- fixed election dates and staggered elections to limit the ability to work with other politicians elected to federal positions to expand their powers.
Summary of the Constitution-SC.
- the cases that may come before the court are defined
- jury trials are guaranteed
- specific rules on treason trials are set out
- Choice of judges determined by the president, confirmed by the Senate
Ratification of the Constitution
The final Article of Constitution specified that each state form a special conventoin to decide whether or not to accept the document drawn up by the FF and it became clear that the Constitution would not be accepted in a number of states unless a Bill of Rights was added. It formally came into effect in 1788.
Bill of Rights was designed to protect Americans against an over powerful federal gvnmnt and along with the other amendments are the constitutional rights. The 1st carries debates concerning prayers in public schools and press censorship. Gun control debates centre around the 2nd and the 10th is often used by the modern Republican party in standing up for states in the increasing power of federal government in DC.
Bill of Rights
- 1st- freedom of religion, speech, press and assembly
- 2nd-right to bear arms
- 3rd-government is prohibited from forcing homeowners to provide lodgings for soldiers.
- 4th-police can not search a person, home or possessions without good cause
- 5th- right to remain silent, double jeopardy rule
- 6th- a jury trial, the accused is entitled to know all charges and hear all evidence
- 7th-jury trial for civil disputes
- 8th-sentences must be proportionate to the crime
- 9th-rights are not limited to the Bill of Rights
- 10th-any powers no specifially given to the federal government belong to the states.
Federalism is the division of powers between a central government and regional governments. The US has a federal system of government where the states and national government exercise separate powers within their own spheres of authority.
The framers of the US constitution sought to create a federal system that promotes strong national power in certain spheres, yet recognises that the states are sovereign in other spheres.
Under the US constitution, both the national and state governments are granted certain exclusive powers and share others.
Powers of state governments
- Establish local governments
- Issue licenses
- Regulate intrastate commerce
- Conduct elections
- Ratify amendments to the US constitution
- Provide for public health and safety
- Exercise powers neither delegated to the national government nor prohibited from the states by the US.
- Constitution( eg setting legal drinking and smoking ages)
Powers of the National government
- Print money
- Declare war
- Establish an army/navy
- Enter into treaties with foreign governments
- Regulate commerce between states and international trade
- Establish post offices and issue postage
- Make laws necessary to enforce the Constitution
Powers shared by National and State governments
- Setting up courts
- Creating and collecting taxes
- Building highways
- Borrowing money
- Making and enforcing laws
- Spending money for improving welfare
When the Constitution was written it was widely understood that the federal government and the states would exercise different, separate powers. The federal government would be responsible for all foreign affairs, national defenceand interstate matters, the states would be responsible for everything else, including powers not mentioned in the Constitution. For most Americans, this meant that the majority of decisions affecting them would be made by their state government which in principle best understood them. This relationship between the states and the federal government is known as 'dual federalism'.
In practice, the balance between the two tiers of government was never as neat dual federalism suggests. During WWI the government took direct control of essential industries and did not look after the best interests of all their citizens for example the african americans in the South looked to the federal courts to protect their interests from state governments that practised racial segregation.
When the Great Depression struck in the 1930s the balance between the states and federal government was altered. The states did not have the resources to help citizens who had lost their jobs and homes. The federal government did have the resources and used them in the New Deal, to help those who were suffering and to stimulate the economy. However, this meant federal government involvement in welfare matters that had previously been considered the exclusive responsibility of the states. This changed and became known as cooperative federalism.
The New Deal was resisted by conservatives in 1930s as undermining the principle of federalism and weakening the most important constitutional protection of liberty. In contrast, liberals admired the way in which the Constitution allowed the federal government to step in at a time of crisis.
Cooperative federalism continued through the Great Depression as federal government continued to play a major role in WWII and the Cold War.
In the 1960s the relationship changed again. President Lyndon Johnson launched his Great Society programme designed to end poverty in the USA. He believed states could not be relied to tackle poverty and his programme often bypassed state government and worked directly with city or local authority to implement anti-poverty projects.
The Great Society programme provoked a backlash. Americans of all political persuasions agreed that federalism was in danger of becoming meaningless as policies concerning communities up to 3,000 away were being made in Washington DC.
Since Lyndon Johnson, almost every president both R and D has introduced programmes to re-empower the states and restore balance closer the original model of dual federalism.
- Nixon(R- 1969-74)- General Revenue Sharing allowed states to spend a greater proportion of their federal grants as they chose.
- Carter (D- 1977-81) Carter cut the amount of federal grants available to the states so that they would have to become more self-dependent.
- Reagan(R-1981-89) made sharp cuts available to the estates. He offered the states a new arrangement in which they would take full responsibility for some welfare programmes while federal government would take over others. The increased cost to the states led them to reject this proposal.
- Clinton(D-1993-01) oversaw an economic boom that led to the states building up surplus funds. These funds were then used to pioneer new policy ideas that suited the states' needs and priorities.
- Bush-(R-2001-09) increased government control over any policy that related to national security in response to 9/11.
- Obama-(D 09-) an economic stimulus plan.
New federalism has illustrated the difficulty of achieving a relationship between the states and the federal government that resembles the balance expected by the FF.
Federalism has taken so many forms as none have worked effectively. The only time the states have enjoyed a resurgance has been during an economic boom. Whenever there has been a national crisis, the federal government has either chosen to assert dominance over the states or has been required to do so, often with the full backing of states that hae been powerless to cope with events.
Why has there been a change in federal-state relat
- Westward expansion
- Population growth- a growing nation needs a growing government
- Industrialisation-brought the need for government regulation.
- Improvements in Communication-brought a feeling of national identity
- The Great Depression- states look to federal government. NEW DEAL helped get the US working again.
- Foreign policy-after WWII the USA became a superpower
- Supreme court decisions
- Constitutional amendments
- 14th- changed federal government's relationship with the states- Constitution has been amended to impose prohibitions directly on state governments. Two requirements: 'Due process' and 'Equal protection'-used by the SC to invalidate state laws requiring school segregation.
- 16th- allowed federal government to impose income tax. therefore allowed government to launch all the programmes from the NEW DEAL to Johnson in the late 60s.
Consequences of federalism
- Laws vary to state to state-age people can marry, death penalty.
- All elections are state based, even Presidential
- Each state decided matters on;how candidates shall be chosen;the procedures for getting a candidates name in the ballot box and what mechanisms to use.
- Political parties are dentralised so ideologies vary. eg. Texas Democrat more conservative than Main Democrat
- Huge federal funds going to the states,but also the complex US tax system
- Income is levied by both state and federal governments
- different regions have different culutres, race, religions and ideologies-segregation.
- Permits diversity
- Creates more access points in government
- Better protection of individual rights
- States become 'policy laboratories'-experimenting with new solutions to old problems
- Well suited to the size of the USA
- Can mask econoic and racial inequalities
- Frustrates the 'national will', making solving problems more complex
- The federal-state relationship is a continual source of conflict and controversy
- Bureaucratic-therefore costly and conservative
Confusion over federalism
Article 1 Section 8(elasticity clause)- to make all laws which shall be necessary and proper.....
10th Amendment- The powers not delegated to the US by the Constitution, nor prohibited by it to the states are reserved to the States respectively, or to the people.
Supremacy clause-article 6- The Constitution and the laws of the US... shall be the supreme law of the land.
Assessment of the Constitution-Conservatives
Both modern conservatives and anti-federalists share the view that the growth of government over the past two centuries has eroded liberty. They have been especially alarmed at the way in which the federal government has come to share, or take over, responsibilities that once belonged exclusively to the states. In addition, conservatives disapprove of how since the 1960s the SC has interpreted the 4th, 5th, 6th and 8th amendments to strengthen the rights of suspects and convicted criminals. In their view this has weakened the law enforcement authorities and hense also the protection offered to law abiding citizens. As supporters of new federalism conservatives would like to see the Constitution amended more effectively to limit the size and scope of the federal government; they would like
- a balanced-budget amendment passed, which would prohibit the federal government from operating at a deficit. This would force gvmnt to raise taxes to fund its programmes or leave responsibility for welfare to the states.
- SC judges who will interpret the Bill of Rights in ways that protect the law abiding citizen.
- One faction-social conservatives would like to see the political system used to promote moral behaviour.
Assessment of the Constitution-Conservatives
Campaigns led by conservatives to change the Constitution have enjoyed limited success. A constitutional convention won the support of 32 out of 33 needed legislatures in order to pass a balanced budget amendment. In 2006 a proposed amendment to make same sex marriage unconstitutional received a majority of the votes in the House but not 2/3 majority in both houses of Congress.
Some aspects of the Constitution are supported by the Conservatives
- Second amendment
- Elected branches are controlled by different parties and fail to cooperate, conservatives often welcome this situation as it limits federal government
- In recent years there have been some signs of the SC tending to interpret the Constitution in ways that meet with the approval of conservatives.
Liberals and the Constitution
In common with the federalists liberals place great emphasis on the beneficial role of government. Liberals have welcomed government intervention that has improved quality of life. At times the greatest concern for liberals are the constitutional restrictions on the government's ability to do more to help those in need of support. EG. during the first term of FDR implementation of the New Deal programmes was hampered by the SC, upholding challenges by conservatives that federalism was being undermined, and the Great Society programme would have had a greater chance of success if it has not been seen as contrary to the Constitution.
- Liberals have been strong advocates of extendng the right to vote to all Americans;19th-women, 24th-abolished all poll taxes that required people to pay a fee to register to vote a practice used in Southern states to limit black participation.
- Liberal judges on the SC who ruled that provisions in the Bill of Rights intended to protect criminal suspects had to be applied in ways that were meaningful.
They would have liked to of gone further. In the 1970s liberals led a movement for an equal rights amendment to the Constitution which would have made sex discrimination unconstitutional. Just as the conservatives have welcomed SC judgements, liberals have been alarmed by them.
Centrists and the Constitution
The Constituion is often seen as having shaped the identity and development of their country. It is often the Constitution rather than American politicians that is given the credit for USA being said to being the most powerful nation in the world in economic and military terms.
Centrist flaws in the Constitution:
- The lack of political progresss that can result from SOP combined with checks and balances causes frustration. 2006-08 where Republicans controlled the executive branc the Ds had a majority in both houses of Congress.
- Although checks and balances do not work effectively enough as when Congress failed to forcefully press the administration of Bush about the claimed evidence of WMD in Iraq.
- Times where constitutional protections of freedom appear not to work as when terrorist suspects where detained for years without trial after 9/11.
Centrists and the Constitution
However there is a faith among centrists that the US political system operating within the framework of the Constitution, will invariably find the right balance over time.
- to resolve the lack of political direction in 2006-08 the public placed blame on Rs and supported Ds firmly in 08 elections
- Bush paid the price in levels of approval after attacking Iraq.
- The detention without trial of 'enemy combattants was forcefully challenged by the SC.
Challenging the Constitution
This is a view held by a significant minority of Americans. This is when the FF forged the three fifths compromise that allowed slavery to continue, even though the opening words of the Constitution claim that it was created to 'secure the Blessings of Liberty' they gave rise to a political system that permitted people to be treated as inferior on the grounds of race. Furthermore they believe that the system has continued in this manner ever since-through the era of legalised segregation in the South to the present, with many laws in practice, discriminating against racial minorities.
According to this view, the Constitution is deeply flawed. It can not be said to have secured justice and promoted the general welfare, as is claimed in its Preamble and will not be able to do so for as long as it restricts government from taking large scale measures (of the kind planned in the Great Society programme) to support those communities on the margins of society.
Checks and Balances-Legislative Branch- Checks on
In this system, several branches of government are created and power is shared between them. At the same time, the powers of one branch can be challenged by another branch. This is what the system of checks and balances is all about. Legislative Branch- Checks on the executive
- Congress can amend, block or reject legislation recommended from president. 2001- ameneded Bush's Education Reform Bill. 1993-Clintons healthcare reforms blocked.
- Impeachment power(House)
- Trial of Impeachment (Senate) 1997-Bill Clinton
- Selection of the President(House) and VP(Senate) if no majority of electoral votes.
- May override Presidential vetos (Congress overrode 4 of Bush's 11 vetoes including 2008 Food Conservation and Energy Bill)
- Senate approves departmental appointments, treaties and ambassadors 1999 Congress rejected the Comprehensive Test Ban Treaty.
- Approval of replacement VP
- Power to declare war
- Controls the purse strings-2007 D controlled Congress attempted to limit Bush's spending on the military operations in Iraq.
- President must deliver a State of the Union Address.
Checks and Balances-Legislative Branch- Checks on
Checks on the judiciary
- Senate approves federal judges
- Impeachment power (House)
- Trial of impeachments (Senate) Walter Nixon for perjury
- Power to initiate constitutional amendments(overturn decisions)
- Power to set courts inferior to SC
- Power to set jurisdiction of courts
- Power to alter the size of the SC
Checks on the legislature-bicameral so has a degree of self-checking
- Bills must be passed by both houses of Congress
- House must originate revenue bills
- Neither the House may adjurn for more than 3 days without the consent of the other house
- All journals are to be published
Checks and Balances-Executive Branch
Checks on the legislature
- Veto power(2007-Bush state Children's Health Insurance Programme)
- Propose legislation
- VP is president of the Senate
- Commander in chief of the military
- Recess appointments
- Emergency calling into session of one or both houses of Congress
- May force adjournment when both houses cannot agree on adjournment
Checks on the judiciary
- Power to appoint judges(Obama-Sonia Sotomayer)
- Pardon power
Checks on the Executive
- VP and cabinet can vote that the President is unable to discharge his duties
Checks and Balances-Judicial Branch
Checks on the Legislature
- Judicial review(1998-Clinton v New York city)
- Seats are held on good behaviour
- Compensation cannot be diminished
Checks on the Executive
- Judicial review(1974-US v Nixon)
- Chief Justice sits as President of the Senate during presidential impeachment
The political importance of checks and balances
The checks and balances between the three branches have important consequences for the US. They encourage a spirit of bipartisanship and compromise between the president and Congress.Laws are passed, treaties ratified,appointments confired and budgets fixed only when branches work together seen in the fiscal cliff situation 2013 due to partisanship.
However, the problem with checks and balances is a gridlock result. Most recent president have accused the Senate of either rejecting or blocking their judicial nominations for partisan reasons. As a conseqeunce, a large number of posts in both the federal trial and appeal courts remain unfilled for months even years slowing down the work of the courts. In 1995, such a serious situation developed between the Republican controlled Congress and democrat president Clinton over the federal budget that part of the federal government had to close when they ran out of money.
This raises the issue of divided government where one party controls the presidency and the other Congress. Of late this has become the norm. The 40 years between 1969-2009 have seen 22 years of divided government but in the previous 40 years prior to 1969 this was not the norm.
The political importance of checks and balances-di
Some believe divided government leads to more effective government as bills are scrutinised closely, treaties are checked more carefully and nomineeds questioned more rigorously. There is some evidence that when Congress and the president are of the same party, legislation, nominations, budgets, treaties are put through without much careful scrutiny as there should be. Only twice in the last 50 years has Congress overridden a veto of a president of its own party.
Others think that divided government leads to less effective government. Examples such as the treatment of Republican Supreme Court nominees Robert Bork and Clarence Thomas by a Democrat-controlled Senate, and the impeachment proceedings conducted against D president Clinton by a Republican controlled Congress seem poor advertisements for effective checks and balances.
There are specific checks and balances that have proved problematic in modern times. Congress' power to declare war is one obvious example. Modern presidents have managed to conduct overt wars eg in Korea, with no congressional declarations of war. Impeachment used against Presidents such as Clinton seems to have become overtly political.
H/E checks and balances of the Constitution have stood the test of time remarkably well.