The Constitution


Background to the constitution

-1776: the 13 colonies on the eastern seaboard of North America declared their independence from GBR in Dec of Independence

-1776-83: War of Independence followed between former colonies & GBR

-1781: newly indepedent colonies established a confederacy (loose association of states) by the Articles of Confederation

-1787: confederacy proved a disaster with not enough power for a national govt. Philidelphia Convention drew up a new constitution

-compromised made in the allocation of natioval govt. power and state govt. power

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Compromises of the constitution- the form of govt

-Under GBR control colonies ruled under unitary govt (power resides with central govt)

-From 1781, they had been ruled by a confederal govt. (power resides with individual states, little with central govt)

-Compromise was a new form of govt. - federal govt. (power resides both in central and individual states)

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Compromises of the constitution- rep of states

-Large population states wanted representation in cong to be proportional to representation, the bigger the population of a state, the more representatives it would have in the new cong

-Small pop states wanted equal representation

-Compromise was to have two houses - HofR & Senate

-HofR, represenation, proportional to representation

-Senate, represenation was equal, regardless of population

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Compromises of the constitution- choosing the pres

-Some thought pres should be appointed

-Others thought the pres should be directly elected

-Compromise resulted in Electoral College - who was indirectly elected

-People would elect the Electoral College, and the 'Electors' within the Electoral College would choose the pres

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A codified constitution

-Codified, contrasts with British const

-Deliberately demanding and challenged amendment process

-Amendments allowed, but only if a majority was desired by fed and state govts.

-Phrases that are deliberately vague and therefore have evolved over decades, so the constitution allows Congress: 'to provide for the common defence and general welfare of the Unitied States' & 'to make all laws which shall be necessary and proper for carrying into execution the foregoing powers'

-Two clauses know as the 'general welfare clause' and 'necessary and proper clause' have allowed powers of fed govt. to expand over time

-Constitution evolved since 18thC by: formal amendment and interpretative amendment

-There is nothing in the constituion about:

  • pres primaries
  • cong commitees
  • pres's cabinet
  • EXOP
  • Supreme Court's power of judicial review
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Principles of the constitution- Sep of powers

-Philedphia Convention divided the national govt. into 3 branches:

  • Legislature - congress, makes laws
  • Executive- headed by pres, carries out laws
  • Judiciary- headed by SC, enforces/interprets laws

-Idea of the FF's was these 3 branches would:

  • Be independent, yet co-equal
  • Be separate in terms of personnel
  • Operate checks and balances on each other
  • Promote the desired concept of 'divided govt'

-It was believed these structures would avoid tryranny

-Law making, executing and enforcing would be indepedent and entirely separate

-No one person could be a member of more than one branch, e.g Obama gave up seat in Senate to run for pres

SEPARATION OF POWERS: a theory of govt where pol power is distributed among 3 branches of govt.

LIMITED GOVT: princple that the size/scope of govt should be limited for the good of people

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Principles of the constitution - Fed division of p

-Federalism involves a level of decntralisation 

-compromise between lesser fed govt. and a loose confederation of independent states on the other (the two experiences of America pre 1787)

-Federal, or federalism are not found in the const but is written into the constitution by:

  • Articles I, II and III which lay out powers of the national govt
  • Amendment X, which guarantees that all the remaining powers 'are reserved to the states and to the people'

-What the const does is to:

  • give exclusive powers to national govt. (only they can negotiate treaties, coin money, tax imports and exports etc)
  • give guarantees of states' rights, e.g states are guaranteed equal rep in Senate, that their borders won't be changed w/out their consent 
  • make clear that there are also states' responsibilities where each state must recognise laws of each other state, by returning fugitives
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Federalism- development of federalism

-Not a fixed concept, evolutionary 

-Most significant changes that have occured in the USA since 1787 and have led to most obv development of fed are:

  • westward expansion
  • growth in pop
  • industrialisation
  • improvements in communication
  • America's role in forgein policy and world-power status

-Latter part of 19thC, 5 factors led to increased role for fed govt. and a decline in state govts. 

-Yet during last decades of the century, there was a move towards more power in state govts. Therefore, 3 distinct phases of federalism:

  • DUAL FEDERALISM: 1780s-1920s- an era of state govts. w/ sig power
  • COOPERATIVE FEDERALISM: 1930s-1960s: fed govt. became more powerful under ND, under D pres'. categorical grants were schemes by washington to stipulate how fed tax $ were spent in states
  • NEW FEDERALISM: 1970s-present- era in which where possible power was devolved to the States. Associated w/ R pres' Nixon, Ford etc. Fed govt. moved towards block grants and revenue sharing where washington allowed states greater independence
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Federalism: development of federalism continued..

-As a result of policies pursued by administrations of both parties, over last 40 years, states seen a sig increase in their autonomy and power

-Decentralisation & states' rights are at the forefront due to:

  • reduction in fed govt. spending
  • a perception that fed govt. programmes such as ND and GS were not successful as 1st thought
  • belief that fed govt. failed to tackle some pressing social problems e.g gun crime, drugs, abortion, welfare & poverty leading to distrust
  • decisions by R majority SC beggining to limit scope of fed govt. in states such as US v. Lopez 1995 while upholding states' rights in cases such as Webster v. Reproductive Health Servives 1989 
  • r domination of White House during 1970s and 8-s and 8 years of 21st C allowed conservative politicans to push states' rights agenda
  • election of r state governors since mid 90s let to state-based innovations in policy areas including environment & healthcare
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Federalism under George. W Bush

-During presidency of Bush fed govt. spending grew at a rate not seen since Johnson in the 60s

-Bush expanded fed govt. unusal for a R

-5 main reasons for expansion:

  • war in Irag
  • homeland security issues following 9/11 attacks 2001
  • expansion of Medicare programme
  • No Child Left Behind Act passed by cong in 2001
  • Wall Street Banking Collapse 2008

-Not agreed by all R with programmes being named 'big-govt. conservatism' and was widely criticised for not vetoing expensive fed govt. programmes (not using a veto in his 1st term 01-05)

-When Bush then let sec of treasury, Paulson take control of 2 troubled govt. sponsored mortage companies, Fannie Mae and Freddie Mac, there was more criticism by the R's.

-Followed by a White house $700bil bail out for Wall Street to alleviate effects of credit crunch

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Federalism under Obama

-Bush admin focused on war and terrorism, Obama more focused on domestic policy 

-War & secuirty against terrorism are conducted exclusively by fed govt. whereas domestic policy is more by states. Thus trends in federalism have so far been seen during Obama pres:

  • ratio of state and local employees to fed is highest since before ND
  • fed govt. assistance to the states increased from 3.7% off GDP in 2008 to 4.6% GDP in 2009
  • money from fed govt. accounted for 30% of state govt. spending in 2009, compared w/ 25% in 2008
  • of $787bil of economic stimilus package, 1/3 went to/through state govts (under bush just $20bil went to states)

-reasons for increased in fed money to states:

  • re-authorisation of State of Children's Health Insurance program 2009
  • expansion of Medicaid under healthcare reform act
  • higher education expenditure
  • $4.35bil invested in Race to the Top programme to boost ed in states

-Obama criticised for federliasm as R's saw passage of healthcare reform as 'end of federalism' with 2010 mid terms 74% of R's and 60% of independents thought 'fed govt. doing too many things better left to businesses and individuals'

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Consequences of federalism

-the ways in which federalism affects aspects of US govt. and politics:

  • variation in state laws concerning matters as the age at which one can drive a car and must attend school
  • variation in penalities for law breaking from state to state
  • complexity of the American legal system, having both national and state courts
  • each state having not only its own laws and courts but its own const
  • complexity of the tax system: income tax; state property taxes; local sales tax
  • state-based elections, run largely under state law
  • the frequency and number of elections
  • pol parties being decentralised and largely state based 
  • regional diversity and regional considerations when making appointments to the cabinet or when 'balancing the ticket' in pres elections 
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The constitutional - the constitution outline

-made up of the original 7 articles plus 27 amendments, 10 of which were added almost immediately, with 1st 3 being most important:

  • Article I: the legislature, including powers of cong, Article II: the executive, including powers of the pres, Article III: the judicary

-1st 10 amendments added in 1791 are known as the Bill of Rights:

  • 1st: freedom of religion, soeech and the press, the right to peaceful assembly
  • 2nd: right to keep and bear arms
  • 4th: freedom from unreasonable searches
  • 5th: rights of accused persons
  • 8th: freedom from cruel and unusual punishments
  • 10th: rights resevred to the states and to the people 

-Since 1791, just 17 more have been added, with two canceling each other out, in relation to prohibition. Of the other 15:

  • 14th: guarantees of 'equal protection' and 'due process' applied to all states
  • 16th: Cong given power to tax income
  • 17th: direct election of senators
  • 22nd: two-term limit of pres
  • 25th: pres disability and succession 
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Constitutional framework- the amendment process

-two stage process:

  • proposals to amend the const can be made by cong or 2/3 maj in favour of both house, or by a national const convention called at the request of 2/3 of the state legislatures(which has never been used)
  • ratification can be made by 3/4 of state legislatures or 3/4 of states holding a const convetion. latter been used once- to ratify 21st amendment in 1933

-6 amendments have been proposed by cong but failed at ratification stage, most recent being equal rights for women, proposed by cong in 1972, but ratified by only 35 states, 3 short of required 3/4. Other failures include:

  • require fed govt. to pass a balanced budget
  • impose term limits on members of cong
  • forbid desecration of American flag

-Reasons for rare amendments:

  • FFs created deliberately vague amendment process
  • vaugeness of the const allowed the document to evolve 
  • SC power of judicial review allows the court to amend the meaning of the const
  • revernce with which the const is regarded makes many pol's caustious of tampering
  • 18th amendment reapled by 21st
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Constitutional framework- constitutional rights

-Const guarantees certain fundamental rights that can be thought of in 2 categories: freedom of or to, and freedom from

-In order for the rights to be effective the govt. has to take steps to ensure the rights are effectively protected. when it comes to govt. all 3 branches must be included:

  • cong- can pass laws to facilitate these rights, laws that enhance the rights of racial minorities. can also through its committee and investigative powers call the exec branch into account regarding the way it implements laws that cong has passed
  • exec- needs to implement the laws which cong passes and estabilishes in order to ensure that legislation is followed by delievery
  • the SC- has an imporant role in safeguarding the constitutional rights of citizens through power of judicial review 
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