Topic 2 US: The Constitution

Democracy and sovereignty in the two constitutions.

- Although both constitutions can be said to be based on the principles of democracy, the two have evolved at different speeds to different conclusions. - USA, as a result of the culture of the nation, the concepts of direct democracy and popular sovereignty are- and have always been- more in evidence. - US constitution allows Americans a much greater role in the electoral process if their nation than the UK constitution for people in Britain. Between the 1780s and the 1880s, the US House of Representatives was elected on a far wider franchise than the UK House of Commons. In the states, the initiative, referendum and recall procedures allow a high level of direct participation. - UK constitution empathises representative democracy and parliamentary sovereignty. British citizens have fewer opportunities for democartic participation than their American counterparts. This reflects the cultural heritage of the UK. They can only elect members of one of two houses. The recent innovation, however, has been the use of referendums of which there have been 13 since 1973.

What other powers are there?

- The constitution delegated certain powers to the federal government alone. It also includes reserved powers (powers not delegated to the federal government, or prohibited by it to the states, are reserved to the states and to the people). - Concurrent powers (powers possessed by both the federal and state governments). E.g. collecting taxes, building roads and maintaining courts.

Does the constitution still work? YES

- federalism has proved to be an excellent compromise between strong national government and state government diversity. - the text has proved very adaptable to changes in American society. - the demanding amendment process has usually prevented frequent and ill-conceived proposals for amendment - rights and liberties have been protected. - the Supreme Court's power of judicial review has made it even more adaptable through 'interpretative amendment.'

What are the advantages of the codified constitution? X4

1. All the constitutional provisions can be found easily in one document 2. The provisions within the constitution are entrenched and therefore from arbitrary change. 3. It provides more significant and effective checks and balances between the various branches of government. 4. It can be made surprisingly flexible by judicial interpretation.

The provisions of the two constitutions

1. Despite these significant differences, the two constitution make some very similar broad provisions. 2. Both provide for systems of government that could be described as representative democracies. Both provide for national governments divided into three branches- a legislature, executive and judiciary. 3. Both provide for a bicameral legislature. Both provide a Supreme Court, for fixed-term elections and for sub-national governments: state governments in the USA and devolved government for Scotland, Wales and Northern Ireland. 4. Both constitutions provide three branches of government, but the way in which they share power and the way in which their personnel are either separate (in the USA) or fused (in the UK) makes a substantial difference to the way things work.

How has the nature of the two constitutions changed overtime?

1. Fundamentally different not only in their origin but also in their nature 2. Codified vs uncodified 3. United states has a single document which contains most of the country's constitutional arrangements. 4. UK has some parts written down, such as, Acts of Parliament, Common Law and works of authority such as those by Erskine May and Walter Bagehot. 5. Entrenchment

Does federalism work today? NO X5

1. It can mask economic and racial inequalities 2. it can frustrate the 'national will' 3. it makes problem solving more complicated 4. the relationship between federal and state governments can become a source of conflict and controversy 5. It is overly bureaucratic- and therefore costly to run and resistant to change.

Disadvantages of the amendment process X5

1. It makes it overly difficult for the constitution to be amendment, thereby perpetuating what some see as outdates provisions: for example the Electoral College. 2. It makes possible the thwarting of the will of the majority by a small and possibly unrepresentative minority. 3. The lengthy and complicated process nonetheless allowed the Prohibition amendment to be passed (1918) 4. The difficulty of formal amendment enhances the powers of the (unelected) Supreme Court to make interpretive amendments. 5. The voice of small-population states is over represented.

Does federalism work today? YES X5

1. It permits diversity 2. It creates more access points in government 3. It provides a 'double security' for individual rights and liberties. 4. It makes states 'policy laboratories', experimenting with new solutions to old problems. 5. it is well suited to a geographically large and diverse nation.

Describe how checks and balances is found in the US

1. Principle runs throughout US constitution and speaks eloquently of the fears of the FF- fears of executive power and they tyranny of the government over the people. 2. Once more we see a constitutional difference between the USA and the UK which reflects cultural differences between the two nations as they developed. 3. US constitution was written to protect the rights of the governed; UK constitution evolved to protect the powers of the government. Checks and balances were the means by which the rights and freedoms of Americans would be protected. They would limit the government. The end result is a diffusion of power and obstruction of a strong government. 4. UK constitution PM draws up legislative proposals which their ministers then introduce into and shepheard through parliament with a guaranteed parliamentary majority. The PM is the leader of the largest party in the HOC. the five yearly general election decides both the make-up of the HOC and the PM.

Advantages of the amendment process X5

1. Super majorities ensure a small majority being able to impose is will on a large minority. 2. The lengthy and complicated process makes it less likely that the Constitution will be amended on a merely temporary issue. 3.It ensures that both the federal and state government must favour a proposal. 4. It gives a magnified voice to the smaller-population states (through the Senate's role and the requirement for agreement of 3/4 of state legislatures) 5. Provision for a constitutional convention called by the states ensures against a veto being operated by Congress on the invitation of amendments.

Where are many of the implied powers found?

Are deduced from what is called the necessary and proper clause of Article I, Section 8. This is often referred to as the 'elastic clause' of the constitution because, by it, the powers of the federal government can be stretched beyond the specifically delegated or enumerated powers. Although some parts of the Constitution are very explicit, there are other parts where it is very vague and the Constitution has therefore been able to adapt to the ever-changing circumstances of the nations

What was established under article I?

Article I established congress as the national legislature, defining its membership, the qualifications and the method of election of its members, as well as its powers. Under Article I, Section 8, Congress was given specific powers such as those to 'coin money' and 'declare war'.

What was established under Article II?

Article II decided on a singular executive power in the hands of 'president'.

What was established under Article III?

Article III established the United States Supreme Court, through Congress quickly added trial and appeal courts. These three articles contain what are called the enumerated powers granted to the federal government.

What does the constitution guarantee?

The Constitution guarantees certain fundamental constitutional rights.

What were the founding fathers anxious about?

The Founding Fathers were the most anxious about the possible power of the singular executive they had created- the president. As a result, they hedged this branch of government with the most checks. Congress exercised 8 significant checks on the president.

What is entrenchment?

The application of extra legal safeguards to a constitutional provision to make it more difficult to amend or abolish it.

What was the issue at the Philadelphia convention?

The framers of the government wanted limited government, whereby government would only do what was essential, leaving the citizen's fundamental rights and freedoms as untouched as is possible in an organised and orderly society. In order to bring about agreement between the anti-federalists and federalists, the delegates agreed on a compromise by which the power of the new federal government would remain limited in its reach. Thus the principle of limited government remains central to political debate today. They had no got rid of tyranny in Great Britain in order to create another nearer home.

What does the constitution consist off?

The new codified constitutions consist of seven articles. The first three explain how the three branches of the federal government work and what powers they would have.

Checks by the president on congress

The president is given the power to recommend legislation to Congress. They do this formally in January of each year in what is known as the State of the Union address. It is the president's main opportunity to lay out their legislative agenda. The president also has the power to veto bills passed by Congress.

What was the significance of the constitution?

The significance of this is that the federal government does not possess unlimited power, but only such power as is given it in the Constitution. But it was also given much less specific powers.

Checks by the courts on the president

They have the same power of judicial review over the executive branch. Here the power of judicial review is the ability to declare actions of the executive branch to be unconstitutional. E.g. 2014, in National Labor Relations Board v Noel Canning, the Court ruled that President Obama had acted unconstitutionally in making three appointments to the National Labor Relations Board without the approval of the Senate.

What is federalism?

This is the third key principle of the US constitution. It refers to a theory of government by which political power is divided between the national government and state government, each having their own areas of substantive jurisdiction.

How is it provided?

Through the complex amendment process.

Why was the bill of rights designed?

To sugar the constitutional pill by protecting Americans against an over-powerful federal government.

What is the consitution like in the United States?

United states has a codified constitution ( a constitution that consist of a full and authoritative set of rules written down in a single text). It is a blend of specificity and vagueness. Its provisions are entrenched.

What is the supremacy clause?

it enshrines into the constitution a key principle of American government that asserts the supremacy of national law. It provides that the laws passed by the federal government under its constitutional powers are the supreme laws of the land.

What are consequences of federalism?

legal, policy and economic consequences. Consequences also include regionalism, consequences for elections and political parties.

Recently what have some states

many states had somewhat reluctantly signed up to the new federal constitution with it potentially powerful centralised government.

What is the bill of rights?

out of the 27 amendments to the Constitution, the first ten were proposed together by Congress in September 1789, and were ratified together by 3/4 of the states by December 1791.

Since the bill of rights what has happened?

seventeen further amendments have been passed.

Checks by the Congress on the courts

the power of impeachment, trial and removal of office. In the space of three years (1986-89) congress removed three federal judges from office. In addition they can propose constitutional amendments.

Checks by the president on the courts

the president nominates all federal judges- to the trial courts, appeal courts and the Supreme court. By choosing justices whose judicial philosophy matches their own, presidents can hope to mould the outlook of the court for years to come. The president also has the power of pardon.

Presidential veto

the president's oiler under Article II of the constitution to return a bill to congress unsigned, along with reasons for his objection.

What is policy consequences?

the states can act as policy laboratories experimenting with new solutions to old problems. Of late we have seen this in such areas as healthcare provision, immigartion reform, affirmative action programmes and environmental policies. Healthcare reform in Massachusetts and immigration reform in Arizona have both received considerable national attention, though much of the latter was declared unconstitutional by the Supreme Court in 2012.

What are legal consequences?

there is a tremendous variety in state law on such matters as the age at which people can marry, or can drive a car, or have to attend school. Laws also vary on drugs and whether the death penalty can be used. There are both federal and state courts.

What are the economic consequences?

these are seen not only in the huge federal grants going to the states, but also in the complexity of the tax system in America. Income tax is levied by both the federal government and some state governments, different property taxes are levied by the state governments, and sales taxes vary between cities.

What does it also involve?

Federalism involves a degree of decentralisation, which has proved suitable for a country as large and diverse as the USA.

What is the constitution a blend off?

It is a blend off both specificity and vagueness

What is the third special feature of the constitution in the US.

Its provisions are entrenched

What later amendments have been added?

Later amendments have been added to guarantee other fundamental rights and liberties. Voting rights were guaranteed to women by the 19th amendment in 1920 and to those over 18 years of age by the 26th amendment in 1971. Voting rights were also guaranteed to previously discriminated minorities- notably black voters- by the 24th amendment passed in 1964. It is largely up to the courts, especially the United States Supreme Court, to ensure that these rights are effective.

Checks by the courts on congress

Power of judicial review. This is the power of the court to declare Acts of Congress to be uncostinal and therefore null and void. In the 1997 case of Reno v American Civil Liberties Union, the Supreme court declared the Communications Decency Act (1996) unconstitutional.

What are implied powers?

Powers possessed by the federal government by interference from those powers delegated to it in the Constitution. E.g. the power to draft people into the armed forces may be implied from Congress's enumerated power to raise an army and navy.

Who and why was the framework put in place?

Put in place by the Founding Fathers because of their fear of tyranny. The framers of the Constitution were influenced by the writings of the French political philosopher Montesquieu.

The first principle of the constitution is separation of powers?

a theory of government whereby political power is distributed among the legislature, the executive and the judiciary, each acting both independently and interdependently.

State of the Union address

an annual speech made by the president to a joint session of congress, setting out his proposed legislative programme for the coming year.

Describe the amendment process

find notes to fill in her

What are the principles of the constitution. It is based off what three principles?

fundamental and foundational ideas. The separation of powers, checks and balances, and federalism. Linked with the first two is another principle, that of, bipratinaship, and linked with federalism is the principle of limited government.

What are Constitutional rights?

fundamental rights guaranteed by the Constitution, including freedom of speech and religion, and freedom from arbitrary arrest.

What was the idea of the Founding Fathers?

had the idea that each of these three independent yet co-equal reaches should check the power of others and it was decided that no person could be in more than one branch of the federal government at the same time.

Cultural Theory comparisons of the UK and the US constitution

1. The British constitution is shaped by evolution and the American is shaped by revolution 2. he American constitution appeared onto the political stage in 1789 almost already fully grown. The British has emerged piecemeal over centuries. Both constitutions are therefore partly a products of the culture and societies that shaped them. 3. The difference in their origins, and the difference in the two cultures from which they grew, shape the two constitutions. The US constitution is largely shaped by the expectations, fears and culture of America in the late 18th century. It is shaped by the expectations for such ideas and beliefs as liberty, indivdais, equality, representative democracy, limited government, states' rights and the rights of law. It is shaped by a soacity that had broken free from a distant and autocratix monarchy, and that was largely accpeting of slavery, ferful of state-organised religion, and deferential to fundamental rights and liberties such as gun ownership.

Describe how separation/ fusion of powers in the US constitution

1. The US constitution is said to be based on the doctrine of the separation of powers. Under the US constitution, both these branches, legislature and executive, are entirely separate. Neither the president, nor the vice president, nor any of the department or agency heads can be serving members of the legislature, nor may a serving member of congress hold any executive office. 2. Executive cannot prematurely end a Congress and call new elections, and neither can Congress remove members of the executive branch, except for 'high crimes and misdemeanors' by impeachment. And even were the president to be removed from office, the vice president would immediately take over. There would be no new elections.

Why has the constitution been amended so rarely? X2

1. The founding fathers created a deliberately difficult process. The need for both the Congress and states to agree, and the need for supermajorities, makes the amendments process difficult. 2. The Founding fathers created a document that was, at the least parts, deliberately unspecific and vague, such as Congress's power to 'provide for the common defence and general welfare' of the United States. This has allowed the document to evolve without the need for formal amendment.

Describe and compare federalism/ devolution in the UK and the USA

1. USA has a federal system of government in which political power is divided between national government and state governments, each having its own substantive jurisdiction. Federalism is very appropriate to a country as large and diversified- in race, culture, language and economy- as the USA. It also adds another layer of checks and balances. 2. UK has been described as a unitary governments for centuries with all political power emanating from the central government. But nowadays can be best described as devolved form of government in which certain powers are the prerogative of the central government while the exercise of other powers are devolved to principalities of Scotland, Wales and Northern Ireland. 3. Differences emanate the structural differences and cultural differences between the two governments. 4. Federalism and devolution quite different. 5. Federal system, certain powers are granted solely to the national government, other specific and subjective powers are granted solely to the state governments, and some powers are shared. The states are not subservient to the national government. 6. Devolved system such as the UK, national government is sovereign. All devolved government power exists only with the agreement of the national government. It may cede more powers to the devolved government. But equally it may reclaim them. 7. Devolution is essentially no more than decentralization on a grander scale within a unitary system of government. 8. Both seek to serve the same purpose- to give power and legitimacy to local communities in the nation, and to give voice to growing regional or, as in the case of Scotland nationalist pressures. 9. Both mechanisms for answering calls for government to be 'nearer to the people' and to attempt to overcome a feeling of distant alienation from those furthest from the centre of national power. 10. Both encourage debate as to how much autonomy the sub-national governments should be granted (can add more from book). 11. Devolution has also led to calls by some in Scotland to become an independent nation, showing another significant difference between federalism and devolution within a unitary system.

Describe how separation/ fusion of powers in the UK constitution

1. Under the UK constitution there is said to be a fusion of powers. British ministers operate in both the executive and legislative branches, heading government departments as well as being members of parliament. The PM is both the head of the executive branch as well as leading their party in the HOC. Parliament can cause the downfall of an entire government through a no confidence vote. 2. Under the setting up of the UK Supreme Court in 2009, the Law Lords in the HOL served concurrently in both the legislative and judiciary, and Lord Chancellor served in all three branches. 3. These differences are largely the product of the structural differences between the two systems of government, reflecting the cultural differences at work in the two countries.

What are the disadvantages of a codified constitution? X4

1. it tends to elevate the importance of unelected judges over elected officials 2. It can be inflexible and therefore fail to change as society changes. 3. The enumeration of rights and liberties does not necessarily mean that those rights and liberties are safeguarded in reality. 4. It tends to be less 'evolutionary'

Why has the constitution been amended so rarely? X2

1. the most important reason, the Supreme Courts power of judicial review, this power allows the court to interpret the constitution and thereby, in effect, change the meaning of words written over two centuries ago. E.g what cruel and unusual punishments means today. 2. Americans have become cautious of tampering with their constitution. They hold it in some degree of veneration. In the early decades of the last century, they got themselves into difficulties amending the constitution to prohibit the manufacture, sale and importation of alcohol.

When was it introduced?

17th September 1787

What is the second principle of the constitution?

Checks and balances , a system of government that gives each branch- legislative, executive and judicial- the means to partially control the power exercised by the other branches.

Bipartisanship

Close cooperation between the two major parties to achieve desired political goals. In the US system of government it may be crucial for political success. (can see extended notes I textbook)

Checks by the congress on the president

Congress can amend, block or even reject items of legislation recommended by the president. Congress can override the president's veto. Congress has 'the power of the purse'. All the money the president wants to spend on the president's policies must be voted through congress.

How have the two constitution changed overtime.

We can see these cultural and societal norms in such constitutional provisions as: the federal system of government; The strict separation of personnel from the three branches of the federal government; the First Amendment requirement that 'Congress shall make no law respecting an establishment of religion'. And As American society and culture changed, so the constitution was amended to reflect these changes; the 24th reflecting civil rights movement; the 18th and 21st amendments reflecting the era of prohibition. The British constitution is largely different because it is a product of a different culture. It had been shaped by and has evolved within a society and culture dominated by a belief in a ocnsittuinal monarchy, a deferential class system and an established church. We can see these effects of British society and culture in; - the role and presence of the monarchy - the presence of hereditary peers in the HOL and the inclusion of 2 archbishops and 24 bishops of the COFE in the HOL.

Divided Government

when the presidency is controlled by one party, and one or both houses of Congress are controlled by the other party.