The Constitution - 10 mark Qs


explain the concept of fundamental law

  • describes the basis of government - synonymous with constitution - codified single document 
  • US constitution is the second incarnation of the fundamental law, the first is the Articles of Confederation drafted by the Continental Congress, which came into effect in 1781 
  • The constitution defines the essential powers of various political institutions and describes the relationship between them and establishes the rights of citizens as well as determining the manner in which the Constitution may be amended 
  • in relation to the political institutions, fundamental law is superior 
  • actions of the legislature and executive are regulated by the constitution 
  • Presidential actions can be declared unconstitutional by the supreme court - Clinton V. New York City 1998 - Line Item veto = unconstitutional --- Trump V. Hawaii Supreme Court 2018 (awaiting outcome)
  • since Marbury V. Madison 1803, acts of Congress may also be struck down
  • the constitution is antecedent and paramount to all branches of government, including legislative representatives - fundamental law controls statutory law.
  • the fundamental law can be changed through the amendment. Congress must get a super majority (two-thirds of the house), which is extremely difficult OR two-thirds of states call for a convention for proposing amendments 
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Consider the importance of the Bill of Rights

  • Bill of Rights is part of the US constitution - first ten constitutional amendments to be ratified. 
  • examples = Amendment 1 - freedom of expression / Amendment 2 - the right to bear arms / Amendment 6 - the right to a fair trial
  • these are important as they are part of the constitution and therefore require the rigorous process of constitutional amendment in order to be changed.
  • these rights are entrenched and protected from abuse by the political institutions
  • In the UK the rights of citizens are contained within an Act of parliament & so can be changed easily by the government. 
  • rights  in the US are upheld by the Supreme Court in cases such as Citizens United V. FEC
  • Despite this, there are times when the Bill of rights does not clearly set out what a particular right is - issues over Amendment 2 & whether it does mean unequivocally guarantee the right of gun ownership // Amednment 8 mwntions "cruel and unusual punishment" without any clear example as to what this means - this allows us to suggest that it is more the Supreme Court that is important as they intereprt the rights -- lack of clarity means that decisions about issues such as prayers in schools are left inappropriately to the justices of the SC
  • a number of constitutional rights are to be found elsewhere in the US Constitution - the issue of slavery deliberately left to one side when constitution & bill was drafted - Later amendments (13-15) were ratified following the end of civil war in 1865
  • Bill of rights is not the sole repository of rights & freedoms within the constitution
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Explain the concept of Constitutional Sovereignty

  • The Constitution of the USA is the supreme law of the US
  • empowered with the sovereign authority of the people by the framers and the consent of the legislatures of the states, it is the source of all government powers, and also provides important limitations on the government that protect the fundamental rights of the US citizens 
  • In the US, no single political institution processes sovereignty (in the UK parliament is sovereign) - Constitution occupies the ultimate place in the political system
  • Constitution appears to imply the notion of popular sovereignty (with the people of the US) - the constitution is the guarantor of the will of the people 
  • some critics argue that sovereignty should reside with the states themselves 
  • There are ambiguity and conflict about the concept of sovereignty in the USA - many call for the sovereignty to be shared or dual, among federal and state government 
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Explain the principle and practise of checks and b

  • underpins working of the separation of powers in the US constitution - enables various branches of the constitution to function alongside each other & seeks to prevent any one individual or political body from holding excessive power 
  • principle attempts to maintain a balance of power at the federal level between executive, legislative & judicial branches
  • maintains balance of power between federal and state levels of US politics 
  • Congress checks on executive (senate approves senior appointments / senate ratifies treaties / congress can conduct impeachment proceedings / Congress can override presidential veto) 
  • congress checks judiciary - Congress sets the number of SC judges / Senate approves presidential nominations to SC / Congress determines the structure of the federal courts 
  • Executive checks congress - can veto bills / casts vote for vice president
  • Executive checks judiciary - selecting federal judges 
  • judiciary checks executive - judicial reviews of executive actions 
  • judiciary checks judiciary - interpretation of law / judicial review 
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examine the process involved in amending the US Co

  • 2 main ways to amend the US constitution - these are outlined in Article IV
  • first method - both House of Representatives & Senate to pass, by a 2/3 majority, a bill proposing an amendment - if achieved, proposed amendment must be supported by 3/4 of 50 state legislatures. All 27 amendments to the US Constitution have been passed using this method
  • second method - Constitutional Convention called by 2/3 of the legislatures of the states, and for that convention, to propose one or more amendments. These amendments sent to states & approved by 3/4 of legislature - this method has never been taken 
  • normal for time limit to be set (usually 7 years) before process can be repeated & this has led to failures in attempting to amend the constitution - most notable was the attempt to introduce amendment promoting equal; rights for women which expired, unratified in 1982
  • only been 27 amendments to US Consitution - shows how difficult it is to amend - high barrier for change means that only issues with high levels of public support are likely to succeed - Controversial changes can take place - prohibition (18th amendment) - it is rare to gain sufficient levels of consensus on specific issues. As political opinion becomes more polarised so does change the constitution 
  • informal amendment - growth in power of SC & ability to interpret constitution - loose constructionist, strict constructionist, original intent
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Explain the concept of separation of powers as fou

  • Locke - Locke claims legitimate government is based on separation of powers, particularly the legislative power. 
  • Montesquieu -coins term "separation of powers" brings in the judiciary - identifies the three branches of government ("tripartite system") - Under this model, a state's government is divided into branches, each separate and independent powers and areas of responsibility so that the powers of one branch are not in conflict with the powers associated with the other branches. The typical division is into three branches: a legislature, an executive, and a judiciary -  trias politica model.
  • Prevents tyranny - not one political institution can hold sovereignty 
  • structure of the US government enshrines the separation of powers - Congress = legislative - pass laws, President = executive - create laws, Judiciary = court & SC - uphold constitution and laws - each are independent - members of Congress must give up their seats if they are to join the executive - Jeff Sessions was senator for Alabama before standing down to become Attorney General in 2017
  • US constitution in part demonstrates the rejection of the monarchical rule of Britain 
  • In GB powers are fussed, executive & legislative can be the same
  • key issues with the principle of separation of powers are the occurrence of gridlock or vetoes, 
  • The federal system itself can be seen as a separation of powers - state & federal gov have different roles 
  • However, it can also be argued that there is more a 'separation of personnel' rather than true separation of powers - power-sharing and forced co-operation through checks and balances
  • the principle can be undermined during times of 'united government' - Bush 2002-2006 when Washington was regularly described as a 'one-party town'  
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Examine the concept of federalism in the USA

  • a key concept in US constitution - a form of power-sharing arrangement between national government and the states - adopted in 1787 due to states struggling to co-exist effectively
  • Federalism is a compromise between unitary government under the British and the weaknesses of original confederation
  • originally 'dual-federalism' (Federal gov not mess with state affairs that do not fit enumerated powers, state leaves national concerns to federal- issues like unemployment and welfare should be left to the states) until 1930s then replaced by co-operative federalism greater overlap between the roles and work of federal, state and local government) thanks to Roosevelt following great depression & dust bowl - both Bush & Obama deliver big government similar to regulated federalism of the past -- "No Child Left Behind" or Obamacare 
  • 'marble cake' federalism - co-operative federalism 
  • 'Layer cake' federalism - functions of state and national gov remain largely separate -dual
  • US public is hostile to big government but demands it in times of national crisis
  • 'elastic clause' - Congress granted power to pass any law deemed 'necessary and proper'to carry out enumerated powers
  • Horizontal federalism- obligations that each state owes to another, includes interstate, full faith & credit, extradition and privileges &immunities 
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