The Makings of the Constitution

  • Created by: dbrennan
  • Created on: 01-04-19 17:19

The nature of the Constitution

Why was the Constitution made?

  • At the Philadelphia Convention of 1787, the 13 states decided to devise a new form of government in order to prevent the British from reasserting themselves and find a balance between the protection of personal liberties strong government.
  • The Articles of Confederation failed to upheld such balance. 
  • 1787, the FFs produced a democratic, codified Constitution.

What does the Constitution say?

  • The preamble: "We the people of the United States, in order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America. 

What were the 7 Articles of the Constitution?

  • Article 1: Legislative power is granted to Congress, which consists of a Senate and House of Representatives.
  • Article 2: Executive power is vested in a President.
  • Article 3: Judicial power is vested in a Supreme Court.
  • Article 4: Defines federal state relationships.
  • Article 5: Amendment procedures.
  • Article 6: Miscellaneous procedures, including the surpremacy clause.
  • Article 7: Ratification procedures of the new Constitution. 
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The nature of the Constitution

What are the key features of the US Constitution?

  • Codified Constituion: a collected and authoritave set of rules of American government and politics. The first three articles set out the enumerated/delegated powers granted to federal government. 
  • Blend of specificity and vaguness:
  • Enumerated/delegated powers: powers given to the federal government, usually within the first 3 Articles of the Constitution. 
  • Implied powers: powers of the federal government that the Constitution does not explicity mention. Implied powers are mainly deduced from Article 1, Section 8 (the elastic clause). For example, power to draft people into the armed forces derives from Congress's enumerated power to raise an army and navy, Congress had the power to levy and collect taxes to proivde for the defence of the US, which derived from enumarted power to provide for the common defence and general welfare of the US. 
  • Reserved powers: powers reserved to the state alone or to the people. Limits the power of federal government.
  • Concurrent powers: powers shared by the federal and state governments, such as maintaining infrastructure. 
  • Supremacy clause: Article 4 of the Constitution states that the Constitution, treaties and federal laws 'shall be the supreme law of the Land'. 
  • Entrenchment: application of extra legal protection to a constitutional provision to make it more difficult to amend or abolish. 
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How are constitutional amendments made?

  • Stage 1: Proposal stage: proposed by either Congress or a national constitutional convention called by Congress.
  • Congressional proposal: 2/3 of the House and Senate.
  • National consitutional convention: 2/3 of the states calling for a NCC. 
  • Stage 2: Ratification.
  • Either ratified by 3/4 of the state legislatures or 3/4 of the states must hold conventions and vote to ratify. 
  • Both stages require supermajorities!
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Advantages and disadvantages of the amendment proc

Advantages:

  • Super-majorities ensure against a small majority being able to impose its will on a large minority.
  • Constitution is less likely to be amended on a temporary issue.
  • Ensures that both federal and state governments favour a proposal for amendment.
  • Gives a magnified voice to the smaller-population states because the ratification requires 3/4 of state legislatures.
  • Provision for a constitutional convention called by the states ensures against a veto being operated by Congress on the initiation of amendments. 

Disadvantages:

  • Makes the Constitution outdated because it is so difficult to amend it.
  • Difficulty of formal amendment enhances the power of the Supreme Court to make interpretative amendments. 
  • Voice of small-popuation states is over-represented. 
  • Lengthy, complicated process allowed the Prohibtion amendment to be passed. 
  • May damage the will of the majority by a small, unrepresentative minority. 
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Why has the Constitution been amended so rarely?

  • The FFs wanted to make the process difficult through the need for both Congress and states to agree and  super-majorities. 
  • The FFs created the Constitution to be unspecific and vague which has allowed the document to evolve without formal amendment.
  • The Supreme Court's power of judicial review allows the Court to interpret the Constitution, therefore making 'interpretative amendments'.
  • Americans see the Constitution as part of their national identity and therefore do not wish to tamper with it. 
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What are the principal constitutional rights?

  • What are constitutional rights?
  • Fundamental rights guaranteed by the Constitution.

What are the principal constitutional rights?

  • First Amendment: freedom of religion, speech, press, assembly (prayers in state/public schools, flag burning, **** on the internet and press censorship).
  • Second Amendment: the right of the people to keep and bear arms shall not be infringed.
  • Fourth Amendment: right against unreasonable searches either of your person or your property, right to silence, protection of an indiviudal from self-incrimination.
  • Eighth Amendment: cruel and unusual punishments shall not be inflicted, protection against unjust death penalty.
  • Tenth Amendment: article of faith for the Republican party, protecting states' rights against strong federal government. 
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What are the key principles of the US Constitution

Based on 3 principles: the seperation of powers, checks and balances and federalism.

Seperation of powers:

  • FFs established this principle in order to prevent tyranny as the result of too much power concentrated into one branch of government. 
  • Each of the co-equal branches should check the power of the others. 
  • Seperation of powers means the seperation of institutions, rather than the powers themself.

Checks and balances:

  • Provides each branch of government with the means to partially control the power of the other branches in order to resist encroachments on its own powers and to maintain democratic government. 

Federalism:

  • FFs wanted political power to be divided between a national government and state governments, each having their own areas of jurisdiction. 
  • Limited government: the scope of federal government should be limited to that which is necessary for the common good of the people. Following the idea of individual rights and popular sovereignty.
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How do checks and balances work?

President:

  • Can check Congress by vetoing a bill it has passed.
  • Can check the federal courts by nominating judges and by the power of pardon.

Congress:

  • Can check the President by: amending/delaying/rejecting the president's legislative proposals, overriding the president's veto, the power of the purse, refusing to approve the president's appointments, refusing to ratify the president's treaties and using the impeachment and trial powers to remove the president from office. 
  • Can check the federal courts by: proposing constitutional amendments to overturn a judicial decision and refusing to approve a person nominated to the federal courts. 
  • Informal check of investigation through Congress's committee system. 

Federal courts:

  • Can check Congress by: declaring a law unconstitutional.
  • Can check the president by declaring the president's actions as unconstitutional. 
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What is federalism?

  • It is a third key principle of the Constitution.
  • Compromise between a strong, central government and states' rights. 
  • Political power is divided between a national government and state governments, who each have their own jurisdiction. 
  • Federalism was included within the Constitution in order to prevent tyranny. 
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